House of Lords
Published December 2, 2008
Regina (JL) (a Youth) v Secretary of State for Justice
Before Lord Phillips of Worth Matravers, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Lord Brown of Eaton-under-Heywood and Lord Mance
Judgment November 26, 2008

A near-suicide in custody which resulted in the prisoner’s mental incapacity triggered the state's obligation to institute an independent initial investigation which complied with article 2 of the European Convention on Human Rights, protecting the right to life.

The House of Lords so held when dismissing an appeal by the Secretary of State for Justice from the dismissal by the Court of Appeal (Lord Justice Waller, Lord Justice Maurice Kay and Lord Justice Wilson) (The Times October 2, 2007; \ 1 WLR 158) of his appeal from Mr Justice Langstaff (\ EWHC 2558 (Admin)) who, on JL’s judicial review claim, brought by the Official Solicitor acting as his litigation friend, granted declaratory relief that the secretary of state was obliged to hold an investigation into JL’s attempted suicide, while in custody at Feltham Young Offender Institution. The Prison Service initiated an internal investigation.

Mr Nigel Giffin, QC and Ms Cecilia Ivimy for the secretary of state; Mr Ben Emmerson, QC and Ms Kristina Stern for JL; Ms Heather Williams, QC and Mr Raza Husain for the Equality and Human Rights Commission, intervening.

LORD PHILLIPS said that the resource implications of the issues were considerable but certain principles that would normally apply could be identified. He would confine his remarks to where the prisoner’s suicide attempt came close to success and left him with the possibility of serious long-term injury. He was thus considering the case where there was a victim whose interests had to be considered.

It was fundamental to the secretary of state’s case that the reason why article 2 required an investigation into a near-suicide in prison was to secure the accountability of state agents in respect of possible breaches of the substantive obligations imposed by that article. Thus, he argued, if the state could show that there was no arguable case of such a breach, there was no requirement for an investigation.

Referring to the human rights and domestic jurisprudence, his Lordship said that the article 2 duty to investigate covered a wide spectrum. Different circumstances would trigger the need for different types of investigation with different characteristics.

The European Court of Human Rights at Strasbourg emphasised the need for flexibility and the fact that it was for the individual state to decide how to give effect to the positive obligations imposed by article 2.

Under the domestic regime, death required a spectrum of different types of investigation, depending on the particular circumstances. But the regime made no provision for nearsuicide.

Nature of the initial investigation

The secretary of state contended that the initial investigation, in circumstances such as the present, could be internal and that, unless it showed an arguable case that the prison authorities were at fault, there would be no need for any further investigation.

Lord Justice Waller considered the Strasbourg and domestic jurisprudence to be applicable to a near-suicide in custody, so as to impose an automatic requirement for an enhanced type of investigation.

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