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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> D, R (on the application of) v Secretary of State for the Home Department [2005] EWHC 728 (Admin) (28 April 2005) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2005/728.html Cite as: [2005] EWHC 728 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		28 April 2005

Mr Justice Munby :

1. D was born on 25 December 1979 and was thus not quite 22 years old when on 30 November 2001 he was remanded in custody on charges, inter alia, of attempted robbery and was taken to HMP Pentonville. He arrived from hospital, having apparently self-harmed at court, and was accompanied by a form indicating that he was a self-harm / suicide risk. Whilst in prison he self-harmed on 3, 4, and 7 December 2001 and on 13 December 2001 was again placed on 15 minute documented watch after an apparent suicide attempt. On the morning of 27 December 2001 (two days after his twenty-second birthday) a broken razor and a noose were discovered in his cell. During a subsequent telephone call he discovered that his daughter had been taken into care by social services. He became very distressed. An entry was made on his form and in the health area observation book that staff should be extra vigilant. At about 3.45 that same afternoon he hanged himself using bed-linen which despite everything had been left in his cell. He was discovered, cut down and revived in time to save his life but too late to save him from suffering permanent and irreversible brain damage. That is why he brings these proceedings by the Official Solicitor as his litigation friend. He suffered brain injury secondary to anoxia and cardiac arrest. Since 4 September 2002 he has been detained under section 3 of the Mental Health Act 1983. He is diagnosed as suffering from an organic personality disorder arising from a traumatic brain injury. He also has gait and balance difficulties associated with the brain damage.
2. There was an investigation by a Senior Investigating Officer in the Prison Service, Ms Carole Draper. She reported on 22 July 2002 in a 22 page report which contained 11 recommendations. So far as it went the Draper report and the investigation leading up to it ("the Draper Investigation and Report") were, and are accepted by the claimant to have been, conscientious, thorough and in some respects critical of the Prison Service.
3. It is a matter of great concern that some of the most important documentation relating to D seems to have been destroyed or lost by the Prison Service. The missing documents include:

i) Annexes 1-8 to the Draper Report. (It is an astonishing fact that it took a very long time even to locate a copy of the Draper Report itself: no copy could be found either at HMP Pentonville or in the London Area Office of Prison Service Headquarters.)

ii) Almost all the records of the investigation by Ms Draper.

iii) D's prison 'core record' and 'inmate medical records'. (The loss or destruction of the inmate medical records involved a clear breach of the Prison Service's own guidelines in PSO 9020, paragraph 3.1 of which requires such records to be kept for 10 years. The loss or destruction of the core record was, it might be thought, inconsistent with what is said in paragraph 3.1.3 of PSO 9020.)

4. Assuming that there is no more sinister explanation for the loss of all these documents (and no-one has suggested that there is) the picture is nonetheless profoundly disturbing. It suggests an alarming level of carelessness and incompetence, not merely in a major prison but also in Prison Service Headquarters. The evidence from a civil servant in the Deputy Director General's Directorate of the Prison Service is able to provide no explanation of how this came about save to say that "Ms Draper's report and annexes were stored within the London Area Office on disc only and this disc was inadvertently wiped after Ms Draper left the Office to take up a new post." The fact that a disc containing such seemingly important material could be "inadvertently" wiped by someone other than its author suggests an alarmingly casual and inefficient approach to record keeping which it might be thought is simply not acceptable.
5. The problem of suicide and other forms of self-harm in our prisons is as well-known as it is depressing. I refer to the comments of Lord Bingham of Cornhill in R (Middleton) v West Somerset Coroner [2004] UKHL 10, [2004] 2 AC 182, at para [5]:

"The statistics … make grim reading. While the suicide rate among the population as a whole is falling, the rate among prisoners is rising. In the 14 years 1990-2003 there were 947 self-inflicted deaths in prison, 177 of which were of detainees aged 21 or under. Currently, almost two people kill themselves in prison each week. Over a third have been convicted of no offence. One in five is a woman (a proportion far in excess of the female prison population). One in five deaths occurs in a prison hospital or segregation unit. 40% of self-inflicted deaths occur within the first month of custody. It must of course be remembered that many of those in prison are vulnerable, inadequate or mentally disturbed; many have drug problems; and imprisonment is inevitably, for some, a very traumatic experience. These statistics, grim though they are, do not of themselves point towards any dereliction of duty on the part of the authorities (which have given much attention to the problem) or any individual official. But they do highlight the need for an investigative regime which will not only expose any past violation of the state's substantive obligations … but also, within the bounds of what is practicable, promote measures to prevent or minimise the risk of future violations. The death of any person involuntarily in the custody of the state, otherwise than from natural causes, can never be other than a ground for concern."

6. In R (Howard League for Penal Reform) v Secretary of State for the Home Department [2002] EWHC 2497, [2003] 1 FLR 484, at para [12], I referred to the significant problems of self-harming, suicidal thoughts and even suicidal attempts, by children and young people in Young Offender Institutions. The most recent statistics supplied by the Prison Service in its evidence in the present case show that in 2003 there were 94 suicides and 16,221 recorded incidents of self-harm (including 204 resuscitations) across the Prison Service estate; the corresponding figures for the nine months from January to September 2004 were 95, 11,822 and 102.
7. As is now well known and clearly established, Article 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms requires that in certain circumstances the state has an obligation to carry out an effective investigation of the circumstances in which someone has died. That obligation can arise in many circumstances. It may arise in cases of medical malpractice: see Erikson v Italy (unreported – 26 October 1999), Powell v United Kingdom (unreported – 4 May 2000), Sieminska v Poland (unreported – 29 March 2001) and Calvelli and Ciglio v Italy (unreported – 17 June 2002). It can arise, for example, when a municipal rubbish tip explodes killing 39 people: Oneryildiz v Turkey (unreported – 30 November 2004). More importantly for present purposes it will arise when someone dies either at the hands of an agent of the state or whilst in the custody of the state: see McCann and others v United Kingdom (1995) 21 EHRR 97 (killing of suspected IRA terrorists by the SAS in Gibraltar), Salman v Turkey (2000) 34 EHRR 425 (death whilst in police custody), Jordan v United Kingdom (2001) 37 EHRR 52 (shooting by police officer) and Edwards v United Kingdom (2002) 35 EHRR 487 (detainee in YOI killed by fellow detainee).
8. A similar obligation may arise under Article 2 when the victim does not die but has sustained "life threatening injuries": R (Amin) v Secretary of State for the Home Department [2003] UKHL 51, [2004] 1 AC 653, at para [31] referring to Menson v United Kingdom (unreported – 6 May 2003). And the obligation arises even if the case is one of self-harm: R (Amin) v Secretary of State for the Home Department [2003] UKHL 51, [2004] 1 AC 653, at para [30] referring to Reeves v Comr of Police of the Metropolis [2000] 1 AC 360.
9. A corresponding obligation to carry out an "effective investigation" arises under Article 3 where an individual raises an arguable claim that he has been "seriously ill-treated" by the police of other agents of the state in breach of Article 3: Assenov and others v Bulgaria (1998) 28 EHRR 652 at para [102].
10. Where someone dies or is injured whilst in custody the burden is on the state to provide a "satisfactory and convincing explanation" of what has happened. As the Court said in Salman v Turkey (2000) 34 EHRR 425 at paras [99]-[100]:

"Persons in custody are in a vulnerable position and the authorities are under a duty to protect them. Consequently, where an individual is taken into police custody in good health and is found to be injured on release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused. The obligation on the authorities to account for the treatment of an individual in custody is particularly stringent where that individual dies … Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries and death occurring during such detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation."

The Court said much the same thing in Jordan v United Kingdom (2001) 37 EHRR 52 at para [103]. Both these authorities were followed and applied by the House of Lords in R (Amin) v Secretary of State for the Home Department [2003] UKHL 51, [2004] 1 AC 653, at para [20].

11. There are three other aspects of the obligation which I should mention at this point. The first was spelt out in Edwards v United Kingdom (2002) 35 EHRR 487 at para [69]:

"whatever mode [of investigation] is employed, the authorities must act of their own motion, once the matter has come to their attention. They cannot leave it to the initiative of the next-of-kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures."

The second is that the person(s) carrying out the investigation must be independent. The third (see Edwards v United Kingdom (2002) 35 EHRR 487 at para [72] and Oneryildiz v Turkey (unreported – 30 November 2004) at para [94]) is that the investigation must be carried out with "promptness and reasonable expedition", indeed with "exemplary diligence and promptness".

12. The obligation when it arises is, as I have said, to provide an "effective investigation" and, in the case of injuries to those in custody, to provide a "convincing explanation". What that means was considered in R (Amin) v Secretary of State for the Home Department [2003] UKHL 51, [2004] 1 AC 653. At para [25] Lord Bingham of Cornhill approved what Jackson J had said in R (Wright) v Secretary of State for the Home Department [2001] EWHC Admin 520, [2001] UKHRR 1399, at para [41]:

"In a succinct and accurate judgment Jackson J reviewed the domestic and Strasbourg case law, deriving from Jordan v United Kingdom (2001) 37 EHRR 52 the requirement that an investigation, to satisfy article 2, must have certain features: (1) The investigation must be independent. (2) The investigation must be effective. (3) The investigation must be reasonably prompt. (4) There must be a sufficient element of public scrutiny. (5) The next of kin must be involved to an appropriate extent."

13. Lord Bingham elaborated on this at para [20]:

"(6) The investigation must be effective in the sense that (Jordan, para 107) "it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances … and to the identification and punishment of those responsible … This is not an obligation of result, but of means."

(7) For an investigation into alleged unlawful killing by state agents to be effective, it may generally be regarded as necessary (Jordan, para 106) "for the persons responsible for and carrying out the investigation to be independent from those implicated in the events … This means not only a lack of hierarchical or institutional connection but also a practical independence."

(8) While public scrutiny of police investigations cannot be regarded as an automatic requirement under article 2 (Jordan, para 121), there must (Jordan, para 109) "be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case."

(9) "In all cases", as the Court stipulated in Jordan, para 109: "the next-of-kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests".

(10) The Court has not required that any particular procedure be adopted to examine the circumstances of a killing by state agents, nor is it necessary that there be a single unified procedure: Jordan, para 143. But it is "indispensable" (Jordan, para 144) that there be proper procedures for ensuring the accountability of agents of the state so as to maintain public confidence and allay the legitimate concerns that arise from the use of lethal force."

14. Lord Bingham went on to make clear that mutatis mutandis the same principles apply even though the killing is not at the hands of agents of the state. As he said in para [21], in Edwards v United Kingdom (2002) 35 EHRR 487, the Court had applied "essentially the same principles" even though in that case "there had been no killing or alleged killing by state agents and the responsibility of the state (if any) could only rest on its negligent failure to protect the life of … a prisoner in its custody". He went on:

"In my respectful opinion, the Court was fully justified in doing so, for while any deliberate killing by state agents is bound to arouse very grave disquiet, such an event is likely to be rare and the state's main task is to establish the facts and prosecute the culprits; a systemic failure to protect the lives of persons detained may well call for even more anxious consideration and raise even more intractable problems."

15. The purposes of such an investigation were explained by Lord Bingham at paras [30]-[31]:

"The state owes a particular duty to those involuntarily in its custody … Such persons must be protected against violence or abuse at the hands of state agents. They must be protected against self-harm … Reasonable care must be taken to safeguard their lives and persons against the risk of avoidable harm.

The state's duty to investigate is secondary to the duties not to take life unlawfully and to protect life, in the sense that it only arises where a death has occurred or life-threatening injuries have occurred … But in any case where a death has occurred in custody it is not a minor or unimportant duty … The purposes of such an investigation are clear: to ensure so far as possible that the full facts are brought to light; that culpable and discreditable conduct is exposed and brought to public notice; that suspicion of deliberate wrongdoing (if unjustified) is allayed; that dangerous practices and procedures are rectified; and that those who have lost their relative may at least have the satisfaction of knowing that lessons learned from his death may save the lives of others."

16. He added at para [32]:

"Mr Crow was right to insist that the European Court has not prescribed a single model of investigation to be applied in all cases. There must, as he submitted, be a measure of flexibility in selecting the means of conducting the investigation. But Mr O'Connor was right to insist that the Court, particularly in Jordan and Edwards, has laid down minimum standards which must be met, whatever form the investigation takes."

17. In the same case at para [41] Lord Slynn of Hadley said:

"The duty to investigate is partly one owed to the next of kin of the deceased as representing the deceased: it is partly to others who may in similar circumstances be vulnerable and whose lives may need to be protected. The significance of this duty to those detained in prison, not least where prisons are crowded and prisoners often dangerous, is obvious. It does not seem to me to be possible to say that there is a clear dividing line between those cases where an agent of the state kills and those cases where an agent of the state or the system is such that a killing may take place. The result of "an incident waiting to happen" may just as much as an actual killing require detailed and profound investigation, though in some cases the procedure to be adopted may be justifiably different."

18. So much for the general principles. I return to the present case.
19. The Secretary of State accepts that, in combination, (a) the circumstances surrounding D's attempted suicide, D being a prisoner who, it is accepted, was on 27 December 2001 known by the prison authorities to be "a real and immediate suicide risk", (b) the seriousness of that incident and its consequences and (c) the existence of issues as to whether more could have been done to deal with the risk, triggered the implicit investigative obligation under Articles 2 and 3. But Mr James Eadie on his behalf emphasises, and it is right I should record, that the Secretary of State's acceptance that the investigative obligation was triggered in this case is fact specific. The Secretary of State does not accept that such an obligation would arise in all cases of self-harm or attempted suicide in custody.
20. The Secretary of State also accepts that the Draper Investigation and Report did not themselves satisfy the state's obligation under Articles 2 and 3 because, as Mr Eadie puts it, the Draper Report was not published and D (or his representatives) played no part in it. Mr Andrew Nicol QC and Ms Kristina Stern on D's behalf would add another fundamentally important reason why the Draper Investigation and Report cannot satisfy the state's obligation: Ms Draper was not "independent". But Mr Eadie submits that this does not mean that the Draper Investigation and Report are irrelevant in considering the satisfaction of the obligation. As the Treasury Solicitor put it in a letter dated 24 January 2005, "in combination with other measures … they will assist in the satisfaction of this obligation."
21. The Secretary of State proposes that the Prisons and Probation Ombudsman ("PPO"), Mr Stephen Shaw, should carry out, and Mr Shaw has agreed to carry out, an investigation into D's suicide attempts on 13 and 27 December 2001. There has been correspondence between Mr Shaw, the Treasury Solicitor and those representing D about the precise form of what is proposed. This culminated in the letter from the Treasury Solicitor dated 24 January 2005, which set out the details of the procedure proposed to be followed by Mr Shaw.
22. Mr Shaw needs no introduction or judicial encomium. His work is well-known. He is rightly accepted by Mr Nicol and Ms Stern as being independent. Their attack on what the Secretary of State is proposing proceeds on a narrower front. Nevertheless I think I should set out the material part of the Treasury Solicitor's letter in full:

"In so far as the ad hoc investigation by the PPO is concerned, it is intended that the investigation be conducted along the following lines which will be set out formally in due course. The Secretary of State's Detailed Grounds set out how the PPO investigation will, in combination with other processes available, meet the procedural obligations under Articles 2 and 3.

1. It is not intended to hold public meetings. This is in common with normal practice among Ombudsmen and in line with the PPO's existing terms of reference for death in custody investigations. However, the PPO's investigation report will be made public.

2. It is intended that there will be some funding made available by The Secretary of State for legal representation for your client to enable him to assist the PPO's investigation given your clients incapacity and the fact that there are no available next of kin. It is intended that principles will be set out as to the broad areas of work for which payment of costs will be considered, the level of funding which will be considered reasonable and the manner in which requests for funding are to be dealt with.

3. The PPO will have unfettered access to Prison Service information, documents, establishment and individuals. Your client will have available to him the documentation provided in the judicial review which is the totality of the documentation that is currently available in relation to this case. The witness statement to be served in the JR details the documentation that should have been available, that which is available and the attempts made to locate that documentation. Any information obtained by the PPO will also be disclosed to you in advance unless the PPO considers that it would be unlawful, or on balance it would be against the public interest to disclose particular information. The PPO is keen that you should receive as full advance disclosure as possible.

4. The PPO intends to collect evidence formally from all witnesses from the Prison Service and other key witnesses by way of either taped interview or signed statement. It is possible that evidence from other witnesses may be collected informally by way of "informal" i.e. untaped interviews.

5. The PPO would welcome questions for the witnesses from you and wants to engage with your concerns. However there will be no opportunity for cross-examination of witnesses. Statements from witnesses and records of taped interviews will be made available to you. If you feel after consideration of such statements and records that there remain important matters to be covered then the PPO would welcome your views and will consider whether there is a need for further investigation which may include further interviews and statements. As stated above, further details as to the satisfaction of the Article 2/3 requirements are set out in the Detailed Grounds.

6. The PPO will have no legal powers to compel witnesses to give evidence but Prison Service staff will be required to offer all reasonable co-operation to the investigation as failure to do so or to act in any way that undermines the investigation's process will be a breach of their conditions of employment. Regarding other witnesses, the PPO generally finds that witnesses co-operate voluntarily with his investigations.

7. The PPO will produce a written report of the investigation which he will send to the Prison Service and yourselves as representatives of the Claimant. The report may include recommendations for the Prison Service and the responses to these recommendations. He will send a draft of the report in advance to the Prison Service and to you on behalf of your client. If you feel after consideration of the draft report that there remains important matters to be covered then again the PPO would welcome your views and will consider whether there is a need for further investigation or changes to the report.

8. The Prison Service will provide the PPO with a response indicating the steps to be taken by it within set timeframes to deal with his recommendations. Where that response has not been included in his report, the PPO may, after consulting the Prison Service as to its suitability, append it to the report at any stage.

9. The PPO will publish the report on the PPO's website (having taken into account any views of the recipients of the proposed published report and the legal position on data protection and privacy laws)."

23. The present proceedings for judicial review had in fact been commenced on 7 October 2004. Permission was given by Bennett J on 19 November 2004. The hearing before me took place on 2 March 2005. I now (28 April 2005) give judgment.
24. The relief sought by the claimant as set out on his Form N461 is a mandatory order requiring the Secretary of State to conduct a "full and effective investigation into the circumstances of" his attempted suicide.
25. There is one other matter I should mention. In a letter to the Treasury Solicitor dated 10 January 2005 D's solicitors assert that he:

"has a potential claim for personal injury arsing from the [Secretary of State's] negligence. The Home Office owed a duty of care to protect [D]. A claim in negligence arises for having allowed [D] to be in a situation where he could attempt suicide on two occasions …, the later resulting in catastrophic damage. This has not been pursued further at the present time, because it was hoped that a full independent investigation will provide a far fuller evidential basis on which to instruct a doctor and to found a negligence claim. However, there is prima facie evidence that [D] has suffered brain damage. There is prima facie evidence that he will need care for the rest of his life. Potentially he has substantial damages claims. The sooner an independent and effective investigation is carried out, the sooner we will be able to particularise those claims."

So far as I am aware no such proceedings have yet been issued.

26. The parties are broadly agreed, in these circumstances, that the issue is whether the proposals by the Secretary of State as set out in the Treasury Solicitor's letter dated 24 January 2005 will satisfy the state's investigative obligations under Articles 2 and 3 (Mr Nicol would add, so far as is now possible given the delay which has already occurred and given, he says, that there has already been an irremediable breach insofar as the obligation was to conduct a "prompt" investigation). Put shortly, D's case is that the Secretary of State's proposals do not meet requirements of the Convention. The Secretary of State's case is that the proposed investigation by Mr Shaw will meet that requirement, particularly when taken in combination with the Draper Investigation and Report and the civil proceedings which D is able, and is apparently proposing, to take.
27. Mr Eadie submits that the purposes of the investigation required by the Convention are broadly expressed and consistent with a range of procedures being sufficient to satisfy the obligation; that the approach to the precise form of Convention-compliant investigation to be found in the case-law is not prescriptive – indeed, the authorities recognise, as Lord Hope of Craighead put it in R (Amin) v Secretary of State for the Home Department [2003] UKHL 51, [2004] 1 AC 653 at para [63], that "the form of investigation which will achieve the purposes of the Convention may vary in different circumstances"; that, as the Strasbourg court put it in Edwards v United Kingdom (2002) 35 EHRR 487 at para [73], "the degree of public scrutiny required may well vary from case to case"; and that the investigative obligation can be satisfied by a combination of processes: see R (Amin) v Secretary of State for the Home Department [2003] UKHL 51, [2004] 1 AC 653 at paras [28], [47] and [52]. I can readily accept all of this. But it does not take me very far in determining just what form of investigation and what degree of public scrutiny is required in the present case.
28. More fruitful, perhaps, is Mr Eadie's submission, which again I can readily accept, that the flexibility inherent in the investigative obligation under the Convention means that there will be some cases or types of case with features demanding a more intense investigation than others, just as there will be some cases or types of case whose features demand a less intensive investigation than others. Cases, as he says, will fall within a spectrum. He rightly concedes that the more serious and concerning the features, the more that effective accountability will require by way of investigation. The difficulty, from Mr Eadie's point of view, is that this does not particularly help him, for deaths in custody, even if they do not involve allegations of deliberate killing by agents of the state, are plainly towards, and equally plainly are treated in the jurisprudence as being towards, the most serious end of the spectrum.
29. Mr Eadie submits, as I have said, that the proposed investigation by Mr Shaw will meet the requirements of the Convention when taken in combination with the Draper Investigation and Report and the proposed civil proceedings. I turn, therefore, first to consider what, if any, significance can be attached to the Draper Investigation and Report. I agree with Mr Nicol's submission that they can make, at best, only a minimal contribution towards the satisfaction of the state's investigative obligation. The Draper Investigation and Report were not independent, neither D nor his family was involved in any way, shape or form, and the Report has never been published. That of itself, in my judgment, reduces its utility for present purposes almost to vanishing point.
30. But there is another reason why the Draper Investigation and Report does not assist, why indeed it actually suggests, if anything, the need for a more stringent investigation now. As I have already recorded, a great deal of documentation (including almost all of the records of the Draper Investigation and Annexes 1-8 of the Draper Report) has either been destroyed, without the usual records of destruction being completed, or has inexplicably gone missing in circumstances involving, as we have seen, non-compliance by the authorities with the requirements of PSO 9020. I have not heard full argument on the point, but it would seem that this of itself may involve a breach of the state's obligations, bearing in mind what the Strasbourg court said in Jordan v United Kingdom (2001) 37 EHRR 52 at para [107]. Having noted that the investigative obligation is "not an obligation of result, but of means", the court continued:

"The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including inter alia eye witness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death. Any deficiency in the investigation which undermines its ability to establish the cause of death or the person or persons responsible will risk falling foul of this standard."

31. I turn next to consider to what extent, if at all, the possible civil proceedings apparently contemplated by D can be taken into account in determining whether or not the investigative obligation is satisfied.
32. Mr Eadie relies upon a line of what I will call the medical negligence cases in support of a submission that the availability of civil proceedings in this context may be highly relevant: see Erikson v Italy (unreported – 26 October 1999), Powell v United Kingdom (unreported – 4 May 2000), Sieminska v Poland (unreported – 29 March 2001) and Calvelli and Ciglio v Italy (unreported – 17 June 2002). I do not agree.
33. Mr Nicol understandably places reliance on what Richards J said in R (Goodson) v HM Coroner for Bedfordshire and Luton [2004] EWHC 2931 (Admin). That was a medical negligence case where a patient had died in hospital following an operation. At para [45] Richards J recorded the submission on behalf of the NHS Trust that:

"There is a real distinction between cases of medical negligence, which were specifically addressed as a discrete area in Calvelli, and cases of intentional killing or failure to protect someone in custody."

Having at paras [53]-[58] analysed the four authorities upon which Mr Eadie relies, he remarked at para [59]:

"Calvelli is both the most recent decision and also a decision of the Grand Chamber; and the judgment in that case analyses the matter solely in terms of the positive obligation to set up an effective judicial system, without reference to the separate procedural obligation to investigate … Whether the matter is analysed in terms of the positive obligation to set up an effective judicial system or in terms of the procedural obligation to investigate may not ultimately be of great significance. Although certain minimum criteria are laid down, the actual nature of an investigation required under article 2 varies according to context; and the Strasbourg cases on deaths resulting from alleged medical negligence show that, if the procedural obligation does apply, the range of remedies available under the judicial system (criminal, civil and possibly disciplinary) can be sufficient to discharge it."

34. Mr Nicol relies in particular on what Richards J said at para [68]:

"It still does not follow, however, that a death in hospital, even one allegedly resulting from negligence by the medical professionals concerned, requires an inquiry of the same kind or intensity as that required in relation to deaths in custody. The minimum criteria or standards may be the same, but there is room for some flexibility in their application. There is, for example, a marked contrast between what has satisfied the Strasbourg court in practice in the cases of alleged medical negligence (irrespective of how precisely they are analysed under article 2) and what has been held to be required in cases of intentional killing or deaths in custody such as Jordan and Edwards."

And at para [75] he added:

"I would add that any issue of negligence can be pursued by the deceased's family in a civil claim; and although in other contexts that would not assist in establishing compliance with the investigative obligation under article 2, in the context of medical negligence the Strasbourg authorities, as I have said, show that it is not only a relevant factor but an important factor in establishing compliance with article 2."

35. Mr Nicol places considerable reliance upon Jordan v United Kingdom (2001) 37 EHRR 52 at para [141], where the Court said:

"civil proceedings would provide a judicial fact finding forum, with the attendant safeguards and the ability to reach findings of unlawfulness, with the possibility of damages. It is however a procedure undertaken on the initiative of the applicant, not the authorities, and it does not involve the identification or punishment of any alleged perpetrator. As such, it cannot be taken into account in the assessment of the State's compliance with its procedural obligations under Article 2 of the Convention." (emphasis added)

36. The Court made the same point in Edwards v United Kingdom (2002) 35 EHRR 487 at para [74]:

"a procedural obligation arose to investigate the circumstances of the death of Christopher Edwards. He was a prisoner under the care and responsibility of the authorities when he died from acts of violence of another prisoner and in this situation it is irrelevant whether State agents were involved by acts or omissions in the events leading to his death. The State was under an obligation to initiate and carry out an investigation which fulfilled the requirements set out above. Civil proceedings, assuming that such were available to the applicants which lie at the initiative of the victim's relatives would not satisfy the State's obligation in this regard."

37. In Oneryildiz v Turkey (unreported – 30 November 2004) at paras [92]-[93], as Mr Nicol correctly pointed out, the Strasbourg court, sitting as a Grand Chamber, drew a clear distinction between the medical negligence and custody cases:

"[92] … the Court has held that if the infringement of the right to life or to physical integrity is not caused intentionally, the positive obligation to set up an "effective judicial system" does not necessarily require criminal proceedings to be brought in every case and may be satisfied if civil, administrative or even disciplinary remedies were available to the victims.

[93] However, in areas such as that in issue in the instant case, the applicable principles are rather to be found in those which the Court has already had occasion to develop in relation notably to the use of lethal force, principles which lend themselves to application in other categories of cases.

In this connection, it should be pointed out that in cases of homicide the interpretation of Article 2 as entailing an obligation to conduct an official investigation is justified not only because any allegations of such an offence normally give rise to criminal liability, but also because often, in practice, the true circumstances of the death are, or may be, largely confined within the knowledge of State officials or authorities.

In the Court's view, such considerations are indisputably valid in the context of dangerous activities, when lives have been lost as a result of events occurring under the responsibility of the public authorities, which are often the only entities to have sufficient relevant knowledge to identify and establish the complex phenomena that might have caused such incidents."

38. I finish on this point with what Jackson J said in R (Wright) v Secretary of State for the Home Department [2001] EWHC Admin 520, [2001] UKHRR 1399, at para [61]. Observing that a civil action does not constitute an effective official investigation if liability is admitted at an early stage, he said:

"liability was admitted at an early stage. There never was a hearing at which evidence concerning the circumstances of Mr. Wright's death was adduced or tested. I do not of course criticise the defendant's admission of liability in April 2000. On the contrary, I commend it. The civil proceedings in this case are irrelevant to the defendant's procedural obligations under articles 2 and 3 of the Convention. I am reinforced in this conclusion by paragraph 141 of the European Court of Human Rights judgment in Jordan v United Kingdom."

39. Accordingly I conclude that the fact that D may hereafter commence civil proceedings is irrelevant and that in all the circumstances the Draper Investigation and Report can make, at best, only a minimal contribution towards the satisfaction of the state's investigative obligation. I should add that even if I am wrong in holding that the civil proceedings are simply irrelevant, I have difficulty is seeing how in this particular case they could make anything more than a small contribution towards meeting the state's obligations. To say, as Mr Eadie does, that D's case against the Prison Service is essentially one of plain negligence is, in one sense true, but it has the effect, even if not intended, of trivialising the gravity of the issues which here require to be investigated.
40. I turn, therefore, to the central issue of whether the proposed investigation by Mr Shaw will meet the state's investigative obligation. In my judgment it will not.
41. Mr Nicol and Ms Stern have five complaints about what is proposed:

i) The inquiry will not be held in public, though the report will be made public when finally completed.

ii) Mr Shaw will not have the power to compel the attendance of witnesses.

iii) D's representatives will not be able to attend when Mr Shaw questions witnesses or be able to require questions to be put to witnesses. The role of D's representatives will be limited to (a) suggesting lines of questioning in advance, (b) subsequently providing views as to whether further follow-up lines of questioning should be pursued and (c) providing views, having considered Mr Shaw's draft report, as to whether or not there is a need for further investigation.

iv) Evidence from witnesses may be taken by statements and by both taped and untaped interviews, but only statements and taped interviews will be made available to D's representatives – with the consequence that, if an interviewee does not give a statement or taped interview in advance, D's representatives will not receive any indication as to the evidence to be given in time to have any meaningful input to the questioning to be put to the interviewee.

v) Although the Secretary of State will make some funding available for legal representation for D, that funding will be at the Secretary of State's discretion and subject to principles set out by the Secretary of State as to (a) the broad areas of work for which payment of costs will be considered, (b) the level of funding that will be considered reasonable and (c) the manner in which requests for funding are to be dealt with.

With the exception of the last there is, I think, substance in each of these points.

42. I agree with Mr Nicol and Ms Stern that in cases of a death in custody, or a 'near miss' suicide attempt in custody such as this, there must be compliance with the principles set out in Jordan v United Kingdom (2001) 37 EHRR 52, in Edwards v United Kingdom (2002) 35 EHRR 487 and in R (Amin) v Secretary of State for the Home Department [2003] UKHL 51, [2004] 1 AC 653. It is therefore interesting to note why the previous investigations in each of those cases were held to be inadequate.
43. I go first to Jordan v United Kingdom (2001) 37 EHRR 52 where the Court at para [142] said this:

"The Court finds that the proceedings for investigating the use of lethal force by the police officer have been shown in this case to disclose the following shortcomings:

– a lack of independence of the police officers investigating the incident from the officers implicated in the incident;

– a lack of public scrutiny, and information to the victim's family, of the reasons for the decision of the DPP not to prosecute any police officer;

– the police officer who shot Pearse Jordan could not be required to attend the inquest as a witness;

– the inquest procedure did not allow any verdict or findings which could play an effective role in securing a prosecution in respect of any criminal offence which may have been disclosed;

– the absence of legal aid for the representation of the victim's family and non-disclosure of witness statements prior to their appearance at the inquest prejudiced the ability of the applicant to participate in the inquest and contributed to long adjournments in the proceedings;

– the inquest proceedings did not commence promptly and were not pursued with reasonable expedition."

The Court added at para [144]:

"The Court would observe that the shortcomings in transparency and effectiveness identified above run counter to the purpose identified by the domestic courts of allaying suspicions and rumours. Proper procedures for ensuring the accountability of agents of the State are indispensable in maintaining public confidence and meeting the legitimate concerns that might arise from the use of lethal force. Lack of such procedures will only add fuel to fears of sinister motivations".

44. In Edwards v United Kingdom (2002) 35 EHRR 487 the Court explained at paras [79] and [87] why the investigation, although independent, had nonetheless been inadequate, even though the report was published:

"[79] The Court finds that the lack of compulsion of witnesses who are either eyewitnesses or have material evidence related to the circumstances of a death must be regarded as diminishing the effectiveness of the inquiry as an investigative mechanism. In this case … it detracted from its capacity to establish the facts relevant to the death, and thereby to achieve one of the purposes required by Article 2 of the Convention.

[87] The Court finds that the lack of power to compel witnesses and the private character of the proceedings from which the applicants were excluded, save when they were giving evidence, failed to comply with the requirements of Article 2 of the Convention to hold an effective investigation into Christopher Edwards's death."

Previously at paras [83]-[84] the Court had commented critically about the private nature of the proceedings:

"[83] … In the present case, where the deceased was a vulnerable individual who lost his life in a horrendous manner due to a series of failures by public bodies and servants who bore a responsibility to safeguard his welfare, the Court considers that the public interest attaching to the issues thrown up by the case was such as to call for the widest exposure possible. No reason has been put forward for holding the inquiry in private …

[84] The applicants, parents of the deceased, were only able to attend three days of the inquiry when they themselves were giving evidence. They were not represented and were unable to put any questions to the witnesses, whether through their own counsel or, for example, through the inquiry panel … "

45. In R (Amin) v Secretary of State for the Home Department [2003] UKHL 51, [2004] 1 AC 653, Lord Bingham explained at para [37] why the previous investigations both in that case and in Edwards were inadequate:

"The report has been published. But the CRE inquiry, conducted under the Race Relations Act 1976, was necessarily confined to race-related issues and this case raises other issues also (as did Edwards, where there was no race issue). Save for a single day devoted to policy issues, the inquiry was conducted in private. The family were not able to play any effective part in it and would not have been able to do so even if they had taken advantage of the limited opportunity they were offered. Whether assessed singly or together, the investigations conducted in this case are much less satisfactory than the long and thorough investigation conducted by independent Queen's Counsel in Edwards' case, but even that was held inadequate to satisfy article 2(1) because it was held in private, with no opportunity for the family to attend save when giving evidence themselves and without the power to obtain all relevant evidence."

One of the defects in the earlier inquiry in the Amin case was, as Lord Bingham had earlier noted at para [13], was that the family had no opportunity to question witnesses.

46. The parallels between the identified inadequacies in those three cases and what Mr Nicol and Ms Stern submit are the corresponding inadequacies in what is proposed by the Secretary of State in the present case are, even if not exact, nonetheless striking.
47. There is also, of course, compelling force in Mr Nicol's observation that if, as a result of being cut down only a minute or two later, D had died rather than 'merely' suffering serious brain injuries, there would have been an inquest: an inquest held in public by a coroner with the power to compel the attendance of witnesses and in accordance with a procedure which would have enabled D's family and representatives to play a full part. As Mr Nicol comments, and I agree, given the jurisprudential basis of the state's investigative obligation – the need to ensure accountability in those cases involving state agents or bodies – there is no logical justification for treating a 'near miss' suicide attempt differently from that of a death in custody. Both, as he points out, raise the same issues; it is simply that by accident of fate life was saved in the one case but not in the other. And, as he also points out, the circumstances leading to D's suicide attempt on 27 December 2001 raise real – and in my judgment very worrying – doubts about the sufficiency of protection against suicide being provided at HMP Pentonville even in the case of someone like D who was, to repeat Mr Eadie's own words, known to be "a real and immediate suicide risk". Moreover, those circumstances were and the information relating to them is, as Mr Nicol observes, wholly within the control of the Secretary of State.
48. Mr Nicol's first complaint, as I have said, is that the inquiry will not be held in public. There will therefore, he says, be an absence of public scrutiny and accountability which will not be cured merely by the eventual publication of the report. As in Edwards, he says, "no reason has been put forward for holding the inquiry in private" and, he says, there is in fact no good reason why it should not be held in public and every reason why it should. I agree. Mr Eadie had little specific to say in answer to this complaint save to point out that death in custody investigations by the PPO are not held in public. That may be, but as Mr Nicol points out we are not here concerned with an inquiry of that nature and Mr Shaw will not be acting here qua PPO. In my judgment Mr Nicol is right when he says that in the circumstances of this case the Convention requires a public inquiry. I should add one qualification. I can conceive that there might be circumstances where it would be appropriate to hear either part or even the whole of the evidence of a particular witness in private. I would not wish at this stage to rule out that possibility, but given that what is required here is a public inquiry the case for hearing any part of the evidence in private would have to be convincingly made out on Convention-compliant grounds.
49. Mr Nicol's second complaint is that Mr Shaw will not have the power to compel the attendance of witnesses. His inquiry will therefore rely upon the co-operation of all concerned, which if absent will render the whole or part of the inquiry ineffective. Mr Nicol relies again on Edwards. The Secretary of State's indication that a failure to co-operate with the inquiry by those currently employed may be a breach of the conditions of their employment, even if correct, does not, he says, meet the point. It will be wholly ineffective as a means of gaining the co-operation of those who have either never been employed by the Prison Service (prisoners, former prisoners, agency staff and employees of other organisations) or who are now no longer employed (former Prison Service employees who have since left). Mr Eadie says that the PPO's experience is that witnesses "generally" co-operate with his inquiries. That may be, but the qualification is not entirely reassuring. More compelling is Mr Eadie's submission, which in part at least I can accept, that compellability as such is not essential. What matters, he says, is the effect (if any) of the lack of power to compel the attendance of witnesses, not the lack of the power itself. He accepts that the lack of compellability may compromise the process – in which case, he says, the problem can be addressed ad hoc by giving the inquiry the necessary powers – but it is not clear yet, he says, that there will be any problem and indeed there may never be. Mr Eadie, in my judgment, is right, at least in the sense that if everyone who ought to give evidence is prepared to do so, and is willing to co-operate fully on a voluntary basis, there will be no need for compulsion. But if the inquiry is to meet the state's investigative obligations then it is vital, in my judgment, that those two requirements are in fact met, and met in full. Can the Secretary of State be confident that they will in fact be met if the inquiry lacks powers of compulsion? I am not sure that I share his seeming confidence on the point. Be that as it may, at the minimum the inquiry must be so constituted that, even if it is not at the outset given the power to compel the attendance of witnesses, it can, if the need arises, either be given the necessary power or reconstituted as an inquiry having that power. It is, however, equally important, if matters are to proceed in this way, that there should be no possibility of any work already done by the inquiry being lost, compromised or significantly disrupted. In other words, if the inquiry is not to be given powers of compulsion at the outset it must be so organised that, if the need to give it the appropriate powers arises after it has embarked upon its work, it will nonetheless be able to proceed with its work seamlessly and without any unnecessary delay.
50. I can take together Mr Nicol's third and fourth complaints, that D's representatives will not be able to attend when Mr Shaw questions witnesses or be able to require questions to be put to witnesses and that they will have no advance indication of the evidence to be given by anyone who has given neither a statement nor a taped interview. These arrangements, he complains, fall foul of the requirements set out in Edwards and Amin. Again, they raise issues of scrutiny and accountability. D's representatives will not be able to have a meaningful input to or involvement in the investigation and inquiry. There will be no opportunity for cross-examination and no opportunity for D's representatives to require questions to be put to witnesses. The possibility of suggesting lines of questioning in advance or follow-up questions is insufficient; the process is unduly cumbersome (it may require the recall of witnesses which may not be possible); and the very real forensic advantage of probing a witness's answers immediately will be lost. Mr Shaw will be entitled to decline to adopt suggestions for follow-up questioning or further lines of inquiry, for substantive and/or pragmatic reasons. Follow-up questioning of witnesses whose evidence has not been taped will be meaningless. These submissions, in my judgment, have compelling force and are in reality unanswerable. Mr Eadie emphasises that Mr Shaw will have unfettered access to Prison Service information, documents and personnel, that he intends to collect evidence from all key witnesses and that he will disclose to D's representatives all the information he obtains (including the record of his questioning of witnesses) unless he judges that to do so would be either unlawful or contrary to the public interest. He says that Mr Shaw will take into account suggested questions in advance from D's representatives and "build them into his questioning as he sees fit." That may be, though it is to be noted that Mr Shaw will not even have the assistance of anyone in the role of 'counsel to the inquiry'. But it simply does not meet the requirements of the Convention.
51. Mr Nicol's final complaint is that although some funding will be available for legal representation for D, that funding will be at the Secretary of State's discretion. It will, in other words, be provided not by an independent body but by the very body ultimately responsible for the matters being investigated. This, he suggests, may impede D's effective participation in the investigation. Funding, he says, should be available without 'strings attached'. I agree that funding, if it is to be provided by the Secretary of State, must come without any inappropriate strings attached. It would, for example, be quite wrong if D's representatives, in order to justify (further) funding, had to disclose privileged or confidential information or even to disclose their 'hand'. And funding must not be so exiguous as to fetter D's representatives in their reasonable pursuit of his interests. But the mere fact that the arrangements are to be at the discretion of the Secretary of State does not in my judgment necessarily involve any breach of the state's obligations under the Convention. What is vital is not so much the fact that the Secretary of State has a discretion but the way in which he decides to exercise it – and that takes us into the realms of speculation, because he has not yet indicated exactly what he is proposing. That is, at least initially, a matter for the Secretary of State, but it may assist if I give an indication of what is likely to be required. If D is to be "involved in the procedure to the extent necessary to safeguard his legitimate interests" – and that is what the Convention demands – then he is going to need the assistance of solicitors and counsel, very possibly both junior and leading counsel. His legal representatives are going to have to be properly remunerated, and without suggesting that the Secretary of State must slavishly follow the practices of the Legal Services Commission he is likely to have the burden of justifying any level of remuneration which does not, at least broadly speaking, match what the Legal Services Commission would be paying. Moreover, as I have already said, the funding must come without any inappropriate strings attached. I should add that if the Secretary of State were to exercise his discretion in an inappropriate manner then his decision would, no doubt, be amenable to a further discrete challenge by way of judicial review.
52. It follows, in my judgment, that the form of inquiry proposed by the Secretary of State does not meet the state's obligations under the Convention and that D is in principle entitled to the mandatory order he seeks. As Mr Eadie says, ultimately the yardstick against which the necessity of any particular procedural facet will be judged is the rationale for the investigative obligation, which, in common with Mr Nicol, he identifies as centring on effective accountability of state agents. And, as he also accepts, one has to have regard to the factors which in the particular case lead to or increase public concern. In the present case those factors are the very factors identified by Mr Eadie himself (see paragraph [19] above): the circumstances surrounding D's attempted suicide on 27 December 2001; the fact that D was a prisoner who, it is accepted, was on 27 December 2001 known by the prison authorities to be "a real and immediate suicide risk"; the seriousness of that incident and its consequences; and the existence of issues as to whether more could have been done to deal with the risk.
53. This was, as Mr Nicol puts it, a 'near miss' suicide. And the circumstances leading to D's suicide attempt on 27 December 2001, as I have said, raise real – and in my judgment very worrying – doubts about the sufficiency of protection against suicide being provided at HMP Pentonville even in the case of someone like D who was, to repeat, "a real and immediate suicide risk". In these circumstances the kind of inquiry proposed by the Secretary of State would simply not meet the state's investigative obligations under the Convention.
54. I make clear so that there is no room for misunderstanding: I am not saying, and nothing in this judgment should be read as suggesting, that the kind of inquiry which the circumstances of the present case requires will be needed in every case of attempted suicide in custody, let alone in cases of non-suicidal self-harm.
55. I will hear counsel further on the precise form of order which is appropriate in the light of this judgment.

MR JUSTICE MUNBY: This is an application for judicial review which arises out of the attempted suicide by a prisoner in Pentonville Prison. The issue is whether the internal inquiry was adequate or whether a public inquiry was required. For the reasons set out in the judgment I am going to hand down in a moment, I have concluded that the internal investigation was not adequate to meet the state's obligations under the European Convention and that there should be a public inquiry.

MS STERN: My Lord, I am grateful. I am afraid that the parties have not been able to agree the form of order, which I suspect your Lordship might have anticipated would happen.

MR JUSTICE MUNBY: The agreement or the disagreement?

MS STERN: There is a measure of agreement, but there is some disagreement. I wonder whether Mr Eadie could hand up his copy as well. It might assist. (Handed). My Lord, it might help if I can indicate the areas of disagreement by reference to the order which I have handed up that we have drafted. The first area of disagreement between us --

MR JUSTICE MUNBY: Yours is the clean version, is it, and Mr Eadie's --

MR EADIE: My Lord, the one with tracked changes on it is simply the clean version that has been handed up with the tracked changes that we suggest on it.

MR JUSTICE MUNBY: Yes, I see.

MR EADIE: It may be sensible to work off simply that document.

MR JUSTICE MUNBY: You tell me, Ms Stern, what the issues are.

MS STERN: My Lord, the first paragraph, as my Lord will see, is agreed between us. The difference between us is that we are seeking a mandatory order in order to ensure that the requirements as set out in your Lordship's judgment form part of the order and bind the Secretary of State, whereas Mr Eadie's form of order puts that in the form of a declaration rather than a mandatory order. My Lord, we would press for a mandatory order if at all possible. That was the relief which we sought at the outset.

MR JUSTICE MUNBY: Can we take it in stages? Apart from the formal difference as between a declaration and a mandatory order, are the actual terms of the paragraphs the same? There seem to be differences.

MS STERN: My Lord, there are some differences between us, particularly in relation to the terms of the order which we have set out and, my Lord, I propose to take your Lordship through those differences. I just wished to indicate at the outset that there is a difference between us as to the form of the order as well.

MR JUSTICE MUNBY: Why do you say that the mandatory order is required?

MS STERN: My Lord, we think that it is essential that there be maximum clarity in this process and that there is the minimum scope for any disagreement as to what is in fact required of the Secretary of State in carrying out this investigation. In those circumstances we would submit that the easiest and the most efficient way of ensuring that is for what your Lordship has set out as minimum requirements to be encapsulated in the form of a mandatory order which binds the Secretary of State.

MR JUSTICE MUNBY: I think I am right in saying that a declaration made in proceedings binds res judicata somebody who is a party to those proceedings. Were the Secretary of State to proceed in a manner inconsistent with the declaration, quite apart from any question as to whether that would involve a breach of the existing order, it might be thought that it would immediately give rise, at the very least, to further judicial review proceedings, to which there could be no conceivable defence and which would probably lead to a very speedy mandatory order.

But, more to the point, what is the basis for suggesting that the declaration is not adequate in relation to a public authority which the court is entitled to assume will comply with the law and obey the orders of the court?

MS STERN: My Lord, in part for the reasons which your Lordship has identified, that if there were declaratory relief, one would then have to issue proceedings for judicial review, and as a result there may well be a mandatory order, and that it would just be circumventing any of that process. In the event -- which we are not suggesting for a moment is likely -- that there is any failure to comply with the terms of your Lordship's judgment, we would simply prefer to have it set out as a requirement of the Secretary of State in the form of a mandatory order.

My Lord, I cannot put it any higher than that. It is our preference and that is what we are asking for from your Lordship. My Lord, obviously I do not dissent from the position that declaratory relief will have the effect of setting out very clearly to the Secretary of State what is required of him by the order of the court.

MR JUSTICE MUNBY: Subject to anybody identifying some practical difference between the two, if I can put it this way, I would not want to be in Mr Eadie's shoes, or the shoes of whoever else had to appear on behalf of the Home Secretary, if there was defiance of an order expressed in declaratory terms and an attempt was then made -- always assuming, of course, my order had not been take to the Court of Appeal -- to argue that in some way the Secretary of State could simply ignore the declaration.

MS STERN: My Lord, it may be as well that I simply move on then as to the terms of the relief.

MR JUSTICE MUNBY: I quite understand why you raised the point, but it seems to me as a general principle -- and I am not pandering to the Secretary of State because he is the Secretary of State or because it is central government rather than local government -- the court is entitled to assume that a public body, whether it is central government, local government or some other public body, will comply with the terms of a declaration and does not require to be compelled by injunction or a mandatory order unless and until there is some basis for thinking that a more stringent form of relief is required.

MS STERN: Well, my Lord, I will move on, in light of your Lordship's decision on that.

MR JUSTICE MUNBY: I do so on the basis that there is clear authority that the declaration is binding res judicata on those who are parties to the proceedings, and I think I am right in recalling that the same authority, the S v St George's Healthcare (?) case in the Court of Appeal, makes it clear that the party to proceedings who acts in a manner inconsistent with the declaration may well be guilty of contempt of court.

MS STERN: My Lord, in those circumstances we are perfectly content to leave that point now.

My Lord, if I could then move on, in those circumstances we would submit that the version of Mr Eadie's draft which includes a second order which deals with costs prior to moving to the declaration would be appropriate.

MR JUSTICE MUNBY: Yes.

MS STERN: My Lord, then to the terms of the declaratory relief. Again, in terms of Mr Eadie's paragraph 3, we would be content that the preamble to that paragraph would remain as per Mr Eadie's draft.

MR JUSTICE MUNBY: Yes.

MS STERN: My Lord, equally, in relation to subparagraph (i), we are content with the form of words set out by Mr Eadie.

MR JUSTICE MUNBY: Yes.

MS STERN: My Lord, again in subparagraph (ii), we are content with that form of words.

MR JUSTICE MUNBY: Yes.

MS STERN: My Lord, once we move to subparagraph (iii), it is really a dispute as to the detail to go into the form of the order. We have sought to take directly from your Lordship's judgment the particular requirements identified. That particularly relates to the claimant's representatives being able to attend the inquiry throughout and, when witnesses are questioned, to be able to put questions to witnesses.

MR JUSTICE MUNBY: Yes.

MS STERN: Mr Eadie has sought to take out the requirement that the representatives be entitled to attend the inquiry throughout and has simply simplified it and said the representatives must be able to put questions to witnesses. My Lord, we do think it is important that attendance is included in the form of words in the declaratory relief. Mr Eadie has indicated, before your Lordship came into court this morning, that he would be content to add in:

"The claimant's representatives must be able in person to put questions to witnesses."

So that would get round any argument as to whether or not one could in writing suggest questions which someone else might put, and it does deal --

MR JUSTICE MUNBY: So Mr Eadie is suggesting that -- and I will put it in personal terms, on the assumption, for example, that you were going to be representing D at the inquiry -- you metaphorically have to take your wig off and go and sit in the public gallery as a member of the public except when you are actually putting questions? It does not seem very sensible.

MS STERN: My Lord, we think it is important that the order sets out that we can attend as counsel throughout, and so, my Lord, that is why we would prefer the form of words. I gather that Mr Eadie does not appear to have any objection to us being able to attend, but feels that it is unnecessary to put that in the form of the order. I am not sure whether I am accurately setting out his position and it may be better for him to explain.

MR JUSTICE MUNBY: He can speak for himself. It seemed to me that, subject to any of the qualification which is reflected in (i), if there is to be a public inquiry and if, in principle, somebody is to be represented at that inquiry, they are entitled to be represented throughout.

MS STERN: My Lord, yes.

MR JUSTICE MUNBY: It does not make much forensic sense to say you are there to put questions to witnesses, because the questioning which you put to witnesses may reflect other things which are going on in the inquiry. Anyway, Mr Eadie can speak for himself. So that is the first point.

MS STERN: My Lord, yes. Also, the ability to attend is not necessarily subsumed within a requirement that the inquiry be held in public. There may be circumstances where the inquiry might be in private but that the claimant's representatives should nonetheless be entitled to attend.

MR JUSTICE MUNBY: I think on that I am right in saying I did not actually apply my mind to the question and did not actually spell out in the judgment, did I, whether, in the event of a witness being heard in private, these representatives could nonetheless be there?

MS STERN: My Lord, I do not think it is a matter we went into at the hearing, so I do not think your Lordship has received any submissions on that particular point, but we would have thought that it would flow from what your Lordship said, in particular at paragraph 50 of your Lordship's judgment.

MR JUSTICE MUNBY: Yes.

MS STERN: My Lord, towards the bottom of what on my version is page 28 of your Lordship's judgment, my Lord referred to, 6 lines up:

"... the very real forensic advantage of probing a witness's answers immediately will be lost."

My Lord, that flows from having to be there and having to attend to hear all of the evidence as it is given.

My Lord, equally in relation to what is our subparagraph (iv), we say again that flows from the terms of paragraph 50 of your Lordship's judgment and that it should be set out in the terms of the order. Mr Eadie, I believe, is going to refer to the terms of the inquiry as offered by the Secretary of State which gave rise to this judicial review, which set out that the PPO would be prepared to provide evidence, but of course, by virtue of your Lordship's judgment, all of that really does fall by the wayside and we are left with a wholly new procedure which is going to have to be put into place, and we again would ask that this be put into the terms that we are being granted.

My Lord, it will cover not just witness statements but all evidence, and that is obviously significant when there may be documentary evidence which would be provided and which could then form the basis of questions to be put to witnesses or submissions to be made on behalf of the claimant.

My Lord, then subparagraph (v) deals with the question of funding. My Lord, we have simply tried to lift your Lordship's language from the terms of the judgment and put it into the order. We did, I have to say, attempt to find another form of words but it was felt that it was preferable simply to reflect what your Lordship actually said in the terms of the judgment in the declaratory relief.

MR JUSTICE MUNBY: Except what you have done is to substitute for my deliberately cautious language, "an indication of what is likely to be required", the word "must".

As you will appreciate, on the funding front -- I did not put it like this -- in effect I was saying that the complaint was premature. The mere fact that the decision must be by the Secretary of State was not in itself objectionable, and I then said there would be no appropriate strings attached and, in an attempt to be helpful -- because these matters had been touched on in the hearing -- I expressed certain views, but I was deliberately careful to qualify them by saying it is a matter for the Secretary of State initially, not for the court, and I went on to say:

"... but it may assist if I give an indication of what is likely to be required."

What then follows you have lifted into the order as saying it must be provided. I think, Ms Stern, that really goes beyond the judgment.

MS STERN: My Lord, your Lordship did go on to say that if D is to be involved to the extent necessary to safeguard his legitimate interests -- and that is what the Convention demands -- then he is going to need the assistance of solicitors and counsel and his legal representatives are going to have to be properly remunerated. So, my Lord, in that sense the terms of the judgment suggest that that would be a minimum and that was thought to be reflected in the terms of the declaration, since the desire was to avoid any scope for dispute as to what the requirements of the judgment were. But, my Lord, we would say that in that paragraph your Lordship is setting out those two matters in particular as minimum requirements to ensure that the Convention requirements are indeed met as regards the funding of representatives for the claimant in this case.

So, my Lord, we do seek to have what your Lordship has expressed really as minimum requirements reflected in the terms of the order, simply to avoid any scope for disputing and, my Lord, that is what we have sought to do.

In relation to subparagraph (vi), my Lord, again we have left the date open because we felt that that might be a matter for some sort of discussion with the Secretary of State and, if that could not be agreed or established at this point, we would be satisfied with an order that says the inquiry must be commenced expeditiously and with no specific date, because we do recognise that there are going to be practical arrangements in order to meet the terms of your Lordship's judgment.

MR JUSTICE MUNBY: You see, for one thing I have no idea -- and it may be, for all I know, that you have no idea, Mr Eadie has no idea and those behind him have no idea -- whether Mr Shaw is personally prepared to conduct an inquiry according to what I have said has to be done. It may be that in that sense it has to go back to the drawing board.

MS STERN: My Lord, precisely, which is one of the reasons we are reluctant to rely in any way on the terms of the offer which was put forward by Mr Shaw in the past because we simply do not know how the Secretary of State is going to meet the terms of your Lordship's judgment. So we would be perfectly content to say that the declaratory relief should set out that there is a need for expedition without specifying any particular date, if the Secretary of State is simply unable to provide a date which would be reasonable in the circumstances.

So, my Lord, I think I have indicated --

MR JUSTICE MUNBY: You see, the other thing is this. As you will appreciate, on the compulsion point I made certain observations. Nobody actually addressed me and I simply do not know -- perhaps I should, but I do not, and I did not think it was appropriate to conduct independent research on this -- what the statutory procedures are which could appropriately clothe an inquiry of this sort with compulsory measures. It may be that in fact the Act had not become an Act at the date of the hearing. I do not know what the impact on all this of the Tribunals and Inquiries Act 2005 may be. None of these are matters which were canvassed before me. Even, assuming -- and I do not even know whether that is a correct assumption -- that there is going to be no appeal against my judgment, I simply have no means of knowing how long it is going to take the Secretary of State, with the best will in the world and exerting the maximum speed, in fact to set up the kind of inquiry which I have said is appropriate.

MS STERN: My Lord, precisely, which is why we are perfectly content if expedition is part of the declaration but no specific time limit is set. We recognise that there are going to have to be measures put in place in order to ensure that the terms of the judgment can be provided.

MR JUSTICE MUNBY: Yes.

MS STERN: So, my Lord, that is all I propose to say as to the form of relief we are seeking. It may be as well if I sit down now.

MR JUSTICE MUNBY: Yes, Mr Eadie?

MR EADIE: Can I make one thing clear at the outset, given that members of the press are here. My Lord, I know you are seeking simply to summarise the nature of the issue. The press are capable of reading the judgment for themselves, but it might be appropriate to make clear that the nature of the issue before my Lord was not whether or not the internal inquiry alone was adequate for the purposes of Article 2. That was never the position taken by the Secretary of State. The Secretary of State, I hope, attempted at least to take a responsible position. He had argued that the internal inquiry alongside civil proceedings were relevant to the determination of the ingredients of an effective inquiry under Article 2, but no more than that, and had sought to identify and narrow the specific ingredients on which there was a dispute, carried out, I hope, responsibly by those representing D in this case.

MR JUSTICE MUNBY: You are absolutely right, Mr Eadie, and the Secretary of State's position was that the original internal inquiry, plus the additional inquiry which he was proposing, was adequate; and the more accurate way of putting it -- the way I should have put it -- was that the issue was whether the original inquiry, accepted not to be adequate on its own, plus the additional proposed inquiry was adequate, or whether, as in fact I found, a full public inquiry was required.

MR EADIE: My Lord, I am grateful for that clarification. So far as the form of order is concerned, my Lord may not have picked up the square brackets around the bit starting: "It is declared that ..." There are effectively three options for my Lord. The first of them is to grant the mandatory relief that my learned friends sought in the claim form and, as far as I am aware, maintained throughout the hearing. That is reflected directly in paragraph 1 of the order. I know my Lord has said in the circumstances in your judgment that that would be an appropriate mandatory order. Then to make an order about costs, which is necessary as well. The first option is then to say you do not need anything else.

MR JUSTICE MUNBY: Just stop at that point.

MR EADIE: Stop at that point. The Secretary of State --

MR JUSTICE MUNBY: Also, you can fairly point out that the only relief actually sought in the N461 is 1.

MR EADIE: Exactly. Our preferred position, reflected in the rather small square brackets, is that that is the appropriate form of order. My Lord has already expressed, I hope well-founded confidence, that the Secretary of State, acting responsibly -- assuming this matter goes no further -- would have regard to what my Lord has said and, if he failed to have regard to what my Lord has said about minimum requirements of Article 2, woe betide him should he come back before my Lord or one of your brethren at a subsequent date.

It is not necessary -- this is my primary submission -- to go further to get embroiled in the sort of difficulties that one sees even of making a declaration. My Lord has pointed to the potential differences, and the slimness of the differences between a mandatory order and a declaratory relief. For our part, we do see that there is a difference between those two in the sense that if it is a mandatory order it may be that much easier to simply go direct from the order itself to contempt of court, as opposed to coming back and having argument, particularly if some of the things that are ordered or declared do have within them an element of discretion, which some of these would plainly need to.

MR JUSTICE MUNBY: Indeed.

MR EADIE: So we see a difference between mandatory order and declaration. But recognising that declaration itself carries, as it were, the potential for direct and serious sanction, we submit as our primary case that it is simply unnecessary to make any form of declaration in this case and that the order should be restricted to 1 and 2. That is the primary submission we make.

The second and alternative submission is if my Lord is minded to make declarations with the consequences that should follow, those declarations -- or indeed any mandatory order -- should restrict the discretion available to the person who conducts this inquiry to the absolute minimum extent necessary in order to ensure compliance with Article 2. The function of my Lord's judgment was not, as it were, to design the process. It was simply to identify the absolute essential structural minimum that would be required in order to ensure that the inquiry was effective for the purposes of Article 2. That, I submit, should be the guiding principle when considering whether or not the ingredients of this declaration, if that is what it is to be, should be. My learned friend has kindly indicated that she is content --

MR JUSTICE MUNBY: Yes, because at this point it is for the Secretary of State, who is setting up the inquiry, to take the decision as to the format of the inquiry, so long as he complies with the minimum requirements laid down by the Convention, as interpreted in the case law and particularly in my judgment.

MR EADIE: Yes.

MR JUSTICE MUNBY: But, you say, so long as he sticks within the law and my judgment, it is for him -- insofar as that leaves him room for manoeuvre -- to decide the format.

MR EADIE: Not merely would it be inappropriate for my Lord to go further, it would be thoroughly undesirable.

MR JUSTICE MUNBY: Well, you say it is trespassing on somebody else's function.

MR EADIE: My Lord, I do. That is the guiding principle in relation to the terms of the declaration, assuming, for the sake of argument, that my Lord is not with me on my primary case. My learned friend has indicated she is content with the beginning of the intro, the preamble to paragraph 3 and (i) and (ii).

So far as (iii) is concerned -- I do not want to get too sucked into the form of words -- I want to make it clear that our understanding of my Lord's judgment is that what was -- it is a little difficult, perhaps, in relation to paragraph 50 to see precisely what the minimum requirements are. But looking at paragraph 50, and trying to do the best one can, the core problem identified by Mr Nicol in relation to witnesses was that it would not be Convention-compatible for the process to take any form other than him or Ms Stern, or someone representing D, to be there to question the witnesses directly themselves. That, after all, was the particular vice, or one of the vices, in Edwards that my Lord relied on for that.

MR JUSTICE MUNBY: Yes, certainly.

MR EADIE: It was that that was the minimum requirement that, as I understand it, my Lord identified. So we are content, assuming that that was the basic reasoning in paragraph 50 of my Lord's judgment, for the words "in person" to be added, because that basically draws the distinction between what had been proposed and what my Lord has now ordered. To go beyond that would, we say, fall foul of the principle I have just identified. It is entirely up to the person who runs the inquiry as to how, aside from dealing with witnesses, they structure that inquiry, obviously within the overall rubric that it should be a public inquiry.

MR JUSTICE MUNBY: Indeed.

MR EADIE: Of course. But that does not necessarily mean, if it is a public inquiry, that you have every part of the process in public; and it does not necessarily mean either, as a minimum requirement of Article 2, that those who are entitled to question witnesses should necessarily be entitled to be there throughout the inquiry. There are ways and ways of running public inquiries which do not involve every single element of the inquiry being in public. It would still nevertheless satisfy that publicity element.

So for our part, my Lord, although we are not going to go to the wall on this, we do not see any need or desirability in adding "attend the inquiry throughout". That is the least important of the points.

MR JUSTICE MUNBY: Well, a public inquiry which is set up with counsel to the inquiry and the full works will be a public inquiry even if some parts of the process do not take place in public and do not involve the public; in just the same way as this is a public hearing but the fact it is a public hearing does not entitle the public to sit in my room while I am drafting the judgment. In just the same way, if there is a public inquiry, that part of the process which may legitimately involve discussions between, for example, counsel for the inquiry or somebody else and the inquiry, do not have to be held in public because it is a public inquiry.

On the other hand, one would have thought that during those parts of a public inquiry which are being held in public -- if it is accepted that it is a public inquiry and accepted in principle, as it is, that D and his family are entitled to be represented -- I cannot, I confess, begin to see the basis for saying the representatives should not be entitled to be there as representatives throughout all public sessions of the inquiry.

MR EADIE: My Lord, I am not suggesting that Ms Stern takes her wig off. That would be an absurd thing to suggest. I am not suggesting that. All I am saying is that one must not in this declaration restrict more than is absolutely necessary the appropriate or the proper or the decided form of that inquiry. Nor should it be taken, from being entitled to be represented at those public sessions, as it were, that Ms Stern or her clients should have new procedural rights attached to that: rights to make submissions at the beginning, rights to make submissions at the end and so on. It is pure attendance without taking her wig off and going to the back of the court, and it is restricted to those elements that the tribunal has decided should be in public session. I cannot object to that.

MR JUSTICE MUNBY: The more you and Ms Stern battle out the form of the order, the more concerned I become. I am not criticising you in any way, but it is not going to be very helpful if, for example -- just taking the last point you raise -- it emerges there is a great dispute between you as to whether D's legal representatives should have a right to make closing submissions, because if that is going to be a dispute we seem to be heading for a rather prompt second judicial review.

MR EADIE: My Lord, that is not a minimum requirement of the Convention. No element of case law identifies that. My Lord can deal with it in any case.

MR JUSTICE MUNBY: I can indeed.

MR EADIE: There are elements of discretion in running the inquiry which the person who runs it --

MR JUSTICE MUNBY: They may be unavoidable. It occurs to me, would there be any objection to (iii) saying the claimant's representatives to be able to attend all public hearings of the inquiry and put questions to the witnesses in person?

MR EADIE: My Lord, no. I would be content with that.

MR JUSTICE MUNBY: That certainly spells out what perhaps I should have spelled out in the judgment -- and, if I had heard these submissions, would have spelled out in the judgment -- that it is implicit in the public inquiry that the representatives attend and are entitled to be there throughout. It stays silent, and you would say appropriately silent, on the question of --

MR EADIE: Procedural rights attached.

MR JUSTICE MUNBY: -- which bits of the inquiry are in public and which are private and, you say, equally appropriately remains silent on the question of whether the right to be there representing carries with it, for example, the right to make opening submissions or closing speeches.

MR EADIE: My Lord, yes. Insofar as (iv) is concerned, again I do not want to get sucked into an argument about whether or not in principle they are entitled to all the relevant evidence. I say that is simply unnecessary. The reality is that this declaration is intended to reflect the disputes that were ventilated before my Lord, and (iv) arose out of a specific proposal in the letter, and that proposal had two elements.

The first of them was an acceptance that all relevant evidence in relation to witnesses was going to be given as soon as possible. There was no dispute about that. This part of the case focused on the fact that the ombudsman at the time was proposing to take evidence from some witnesses without taping them and without making a transcript of their evidence or otherwise recording it; and the argument was, which I think my Lord accepted, that that does not work because you have to be able to have access to the core evidence. I think that is a fair summary of what my Lord was concluding.

But the reality is that if it is going to be public, and if there is going to be (iii), (iv), which was the subject of a very specific and narrow dispute before my Lord, simply falls away. There is no earthly reason to suppose that the Secretary of State is going to impose, as it were, a greater procedural or a lesser procedural protection than that which was proposed in the letter. There is no possible basis for that conclusion. He has already accepted that relevant evidence is going to be passed over, so there is absolutely no purpose, I suggest, in making (iv). My Lord is not here on a mission, as it were, to clarify all elements of the process. You are here -- if at all, to give declarations, should you decide that is appropriate -- simply to give declarations relevant to the issues that are before you. The issue in (iv) falls away as a result of your conclusions in relation to (iii) and (i). So that is what we say about (iv).

MR JUSTICE MUNBY: Yes.

MR EADIE: (v), which would now be (iv), is the funding point. My Lord, I may be pushing at an open door, so I can take that fairly shortly, I think. Adequate funding without appropriate conditions, we say, is sufficient to indicate the minimum requirements of Article 2 without unduly restraining or restricting the discretion in the Secretary of State. He will of course -- or those who are responsible for the funding decisions will of course -- bear in mind what my Lord has said. But it will, I suggest, be inappropriate to make that more restrictive or, as it were, to restrict the element of discretion to a greater extent.

MR JUSTICE MUNBY: There may be an intermediate position here. Supposing the reference to proper remuneration for solicitors and counsel, the reference to junior counsel, came out, do you have objection to the remaining wording: "and the funding must be at such a level as to allow the claimant to be involved ..."?

MR EADIE: I do not have any objection to that. But I query simply whether that, in those general terms, actually adds anything to what is already proposed in my draft, because that is plainly what is implicit in the word "adequate".

MR JUSTICE MUNBY: Yes.

MR EADIE: So I do not have objection to those words staying in, but I suggest they are entirely unnecessary.

MR JUSTICE MUNBY: Yes.

MR EADIE: So far as "inquiry being commenced expeditiously" is concerned, again that was not the subject of any argument before my Lord. Indeed, as I recall Mr Nicol's --

MR JUSTICE MUNBY: On one level he is saying that the horse has long since bolted. It is irretrievably flawed.

MR EADIE: If that is right this becomes a pointless order. If you are seeking to identify the minimum requirements of Article 2, if his case is right, Article 2 has already been irretrievably breached.

MR JUSTICE MUNBY: In that sense.

MR EADIE: In that sense. My Lord, everyone who is involved in this process will be well aware that they need to get a wig on and to make the decisions they need to make as soon as they can be made. There are a whole series of things that need to be sorted out, as my Lord will no doubt appreciate, and to make any form of declaration, as it were, potentially teeing up a contempt application if someone says expeditiously has not happened, would, I suggest, be entirely inappropriate.

MR JUSTICE MUNBY: I have a slight concern and that is this. It is quite well illustrated by the point. Supposing I am with you to the extent that it is declaratory relief and that we leave out number (vi), which is "the inquiry must be commenced expeditiously", I do not want, as it were, subsequently to discover that it is being said that because the judge approved something being struck out of the declaration, that is no longer a requirement; and that because the judge was persuaded that the words "the inquiry must be commenced expeditiously" should not appear in the order, there is therefore no obligation to proceed with expedition. That would concern me considerably.

MR EADIE: I understand that. That remark is now in the public domain and will have been noted. But it may be thought that it was perhaps an unnecessary concern anyway because the idea that somebody would say just because you do not have a declaration or an order that the thing should happen expeditiously gives one warrant to delay unduly seems a rather surprising proposition. But, my Lord, that point has been noted.

My Lord, that is what we say about the order. Can I deal with permission to appeal, if my learned friend would not mind me doing that now?

MR JUSTICE MUNBY: Yes, of course.

MR EADIE: It will give her further opportunity to think some more, if she wants to, about what I have said.

My Lord, so far as permission to appeal is concerned, it is always a rather invidious suggestion that there are real prospects of success on an appeal where the judgment has just been given. But, my Lord, you will appreciate that there are at least significant issues about the weight to be attached to the Draper report, the weight to be attached potentially to civil proceedings, and my Lord has taken a view effectively they are to be discounted and given minimal weight in this context. That is one potential issue.

The second major issue is whether or not my Lord in his judgment has allowed sufficient flexibility on the procedural elements required. You have in effect ordered a full-blown public inquiry with all the elements of a trial in Article 2. I am well aware of -- and am grateful for -- the indications that my Lord gave in the judgment about the need to restrict things to the particular circumstances of the case. I am particularly aware of paragraph 54 in the judgment so far as that is concerned. Nevertheless, my Lord will be aware that even if one identifies certain features that are specific to this case, it might well be said either that there are lots of other cases which fall within those specific ingredients, or that it is a very short step from those ingredients into some new category. You will have seen the numbers of cases that are involved.

So I put my application for permission, as it were, on a combination of real prospects of success and, perhaps more importantly -- of course there is a logical difficulty between real prospects of success and compelling reason -- on there being in this case a compelling reason for permission to appeal to the Court of Appeal because of the broader implications that are involved and the importance of the principles that my Lord has identified. So, my Lord, I do ask for permission to appeal.

MR JUSTICE MUNBY: Yes. It is right that the question as to the relevance of civil proceedings and the dichotomy between medical negligence and other kinds of cases is not something that has ever been explored in this country by the Court of Appeal, has it?

MR EADIE: My Lord, it has not, but I would be concerned not to restrict the appeal to those points because of the offer that was made in the Treasury Solicitor's letter.

MR JUSTICE MUNBY: Of course not.

MR EADIE: I suspect that is almost of greater concern to those behind me, recognising that my submission was that, whilst things exist on a spectrum, on any view this is at a serious end. Perhaps a greater concern is whether or not there is flexibility to allow something other than the full-blown public inquiry that my Lord has ordered.

MR JUSTICE MUNBY: From the rather narrow perspective of the Home Office, the concern is obviously that; and also, fundamentally, a concern that it may be difficult in future --

MR EADIE: To restrict this case to its facts.

MR JUSTICE MUNBY: -- to restrict this case to its facts; and it may be difficult to come up with plausible reasons why the same result should not happen in every case of at least attempted self-hanging, even if it does not apply wider. Taking a rather more general view of the issues which might arise, in a sense the most obvious point of law --

MR EADIE: Is the extent of the weight that one attaches to an internal inquiry and possibly --

MR JUSTICE MUNBY: Indeed, and civil proceedings.

MR EADIE: My Lord, yes.

MR JUSTICE MUNBY: The rest is, in a sense, merely an attempt to apply the well-established principles, but in terms of a point of law which is difficult and, as it happens, has not yet been brought to appeal, the one I have mentioned is the obvious example.

MR EADIE: My Lord, yes.

MR JUSTICE MUNBY: Yes.

MS STERN: My Lord, if I could go back to the terms of the order.

MR JUSTICE MUNBY: Yes, of course.

MS STERN: I am not sure whether my Lord does need persuading as to whether or not any declaratory relief is required at all. It is my submission that there is obviously room for some interpretation as to what your Lordship has intended by the terms of the judgment, and it is in our submission absolutely essential that that is clarified now and is not allowed to linger with the possibility of further dispute between the parties and a great deal of costs being incurred later.

My Lord, on the specific point of attendance at the inquiry, my Lord, we would be concerned if that was restricted to when the hearing was in public because, my Lord, there may be reasons why a particular tranche of the hearing should not be in public, but that would not necessarily be a good reason for excluding the claimant's representatives.

MR JUSTICE MUNBY: You see, the more you and Mr Eadie debate the finer points of the paragraphs, the more I am beginning to wonder whether it is really helpful for me to grant declaratory relief at all, because on the point we are focusing on at present, we are actually now debating something which was not the subject of argument before me at all. It goes down to, Mr Eadie might say, the fine detail -- you would say important details -- of the inquiry. It actually raises some rather important issues which understandably simply were not addressed at all during the hearing and, moreover, issues which arguably are in the first instance for the architect of the inquiry and not for me.

It is difficult to know how far this point might go. You say there may be parts of the inquiry where it is legitimate to remove the public for some reason but appropriate for the family to be represented. For all I know the Secretary of State could come back and say, at least in theory, the inquiry might get to a point where it was also necessary to remove the defendant's representatives. It is unlikely in this particular case, but it is not inconceivable that in a case of this kind there might be, conceivably, high grade intelligence information which had some bearing upon events in the prison which would lead to an argument as that whether there should be representation by other counsel for the particular purpose. The difficulty is, if one once gets sucked into this debate, there are dangers if I go so far but no further.

MS STERN: My Lord, in the light of those sentiments, it may be that indeed on reflection the best course is to go back to the form of words which your Lordship put to Mr Eadie, which was that the claimant's representatives must be able to attend all public hearings of the inquiry and to put questions to witnesses. When one puts that together with subparagraph (i), one would get to the position that there would need to be an ECHR-compatible reason for excluding the claimants representatives, and it may be that that may be the way of getting round the difficulties between us without going beyond the term of matters which were in fact argued before your Lordship.

My Lord, in relation to subparagraph (iv), we simply wish to reiterate the points that I made earlier. That is just that we seek to reflect what your Lordship was indicating in the judgment here, mindful of the fact that whatever was offered by the PPO may indeed entirely fall by the wayside in whatever is to be proposed by way of inquiry or investigation to meet the terms of your Lordship's judgment now.

MR JUSTICE MUNBY: The offer, strictly speaking, came from the Secretary of State, not the PPO. The letter written by the Treasury Solicitor was on behalf of the Secretary of State, indicating that the Secretary of State was proposing an inquiry in a particular format but confirming that Mr Shaw was content to conduct an inquiry on those terms. As I understand it, the specific proposals, although they had Mr Shaw's blessing, as it were, were the Secretary of State's proposals. Mr Eadie's point is that there is no reason to think the Secretary of State is now going to start backtracking on what he has previously offered.

MS STERN: My Lord, that may well be. It is simply that we would prefer to have that. If there is no dispute that that will be provided, then it is difficult to see what prejudice could be caused by having it in the form of the order.

My Lord, I think that just leaves the matter of leave to appeal.

MR JUSTICE MUNBY: There is also the question about -- are you still pressing for "the inquiry must be commenced expeditiously"?

MS STERN: My Lord, it was not a matter upon which we actually made submissions, as I recall, at the hearing. We can see the difficulties. We would obviously wish it to be commenced expeditiously, particularly in the light of the delay which has already occurred. It is difficult to see what prejudice could be caused by having that in the form of the order, and it might focus the minds of those involved in the process.

MR JUSTICE MUNBY: Yes. Of course, were either I or the Court of Appeal to grant permission, there is going to be probably a fairly lengthy hiatus anyway.

MS STERN: My Lord, that may well be. It may also be that the Secretary of State may take steps to see how a further inquiry could be arranged in advance of any determination.

MR JUSTICE MUNBY: What about the funding? Mr Eadie was content, as I understood it, to have included the last three lines, but wanted excluded the specific reference to solicitors and counsel.

MS STERN: My Lord, I am perfectly content with that. The terms of your Lordship's judgment will obviously be read together with this order in any event.

MR JUSTICE MUNBY: Yes.

MS STERN: My Lord, I think we have gone away from many of the areas of dispute as to the terms of the order.

MR JUSTICE MUNBY: What do you say about permission to appeal?

MS STERN: My Lord, I cannot make any submissions as to whether or not it is in the public interest, because we obviously accept that it is a matter in the public interest. What we would say is that the terms of your judgment are very clear and flow, we would say inexorably, from the authority where one can find acceptance by the Secretary of State at the outset that, in the circumstances of this case, the investigative obligation under Articles 2 and 3 did arise.

That then just leaves a question of fact really as to whether or not certain minimum requirements apply in any particular case. Your Lordship has been quite careful in the judgment to set out that there are particular indicators of concern in this case which may well not arise in other cases.

MR JUSTICE MUNBY: The practical difficulty is that the bottom line is in a sense what matters. In terms of legal analysis, you can argue plausibly that all I have done is to apply in large measure well-established jurisprudence. But that is not much comfort to the Home Secretary. The bottom line is that he has been told he has to have a full-blown inquiry in a non-fatal self-hanging.

Now, true it is that I have spelled out very explicitly that this does not necessarily apply in all such cases, and I have tied it very closely to the acceptance by the Secretary of State that in this particular case the prisoner was a known suicide risk. But I suspect that if one treats those as the two irreducible minima which have to be established to fall in the ambit of this decision, it will not be particularly difficult for appropriately industrious and ingenious lawyers advising families and people in a similar situation in future that the same thing is established.

After all, I suspect -- and there is quite a lot of material to support this -- that very few near-miss attempted suicides by hanging in prison just emerge out of a clear blue sky. In the nature of things they are likely to arise in circumstances where there is at least some plausible material for asserting that, at least arguably, the prison authorities were on notice of what might happen. Therefore, it seems to me that in terms of the bottom line on this, one can well understand the Secretary of State's concern about the possible allegations.

MS STERN: My Lord, yes. I think I tried to indicate at the outset that I could not make any objection to the submission that there is public interest in the matter that is the subject of this case. But one must also look at the prospects of success, and the authority which your Lordship applied was very clearly in favour of viewing deaths and serious injuries or life-threatening injuries in custody as being in a different category to -- if I can put it -- the clinical negligence cases.

My Lord, we would say that in the light of the authority that your Lordship applied, there really is only a very slim prospect of success in the appeal and, my Lord, the two factors should go together, and in those circumstances permission to appeal should be refused.

MR JUSTICE MUNBY: I am going to give permission to appeal. It seems to me that although in very large measure this case involves little more than the application to the particular facts of well-established principles -- and when I say well-established principles I mean well-established not merely in a number of cases at Strasbourg, but also well-established by decisions of the House of Lords. However, there is at least one important point of law in this case which has not hitherto been considered in the domestic courts, either in the Court of Appeal or in the House of Lords, and that is the question as to the extent to which, if at all, it is relevant to take into account the previous internal inquiry and, more particularly, the potential civil proceedings. That latter point in particular seems to me to raise a general point of principle of some importance, not merely in this narrow context but in other contexts, and it is -- I think I am right in saying -- a matter which has thus far in this country not been considered except in this court.

It seems to me that there is also, for reasons which I indicated a few moments ago when I was debating the point with Ms Stern, a compelling reason why this matter should be considered further in the Court of Appeal, bearing in mind the importance of the underlying issues, the importance of the circumstances which gave rise to the present application and the understandable concern on the part of the Secretary of State as to the implications of my judgment for what may be a potentially large number of other cases.

It is always difficult -- and one runs the risk of very promptly being proved wrong if one expresses any views on the topic -- for a judge placed in my position to have any very clear feel for the prospects of success of a judgment which he has just delivered and which, in the nature of things, he obviously believes to be correct. But, for what it is worth -- and recognising that I am delivering myself a hostage to fickle fortune -- I give permission on the basis that there is the important point of law I have mentioned: that there is compelling reason in the public interest why the matter should be considered further. I do not give permission to appeal on the basis that I take the view that there is any very substantial prospect of the appeal succeeding, but I am nonetheless going to give permission.

I recognise that of course the disadvantage of my giving permission, as opposed to sending Mr Eadie off to the Court of Appeal to seek permission, is that I have no control, and the Court of Appeal may initially have little control, over the timing of the appeal. In all the circumstances this plainly is not an appeal which requires to be dealt with as a matter of great urgency. This is not an emergency situation and indeed, as Mr Eadie fairly pointed out, part of the claimant's own case which I have accepted is that, in terms of delay, the damage has irremediably been done. I would nonetheless hope that this appeal can be dealt with as quickly as possible because it is potentially holding up not merely the inquiry, but it may also indirectly be holding up the other civil proceedings.

So far as concerns the order, I think on balance it may be helpful to grant declarations, but they are going to be declarations, not mandatory orders. So far as concerns (iii), it will be redrafted to indicate that the claimant's representatives must be able to attend all public hearings of the inquiry and to put questions to witnesses in person. (iv) should provide that the claimant's representatives be given reasonable access to all relevant evidence in advance. The remaining words can be deleted as being unnecessary.

So far as concerns (v), that will be the complete text, ignoring for that purpose all the underlining and the crossing out, but excluding the bit in the middle which refers to proper remuneration for solicitors and counsel. In other words, it will the first two and a half lines and the last two and a half lines, and I think in all the circumstances, not least because I have granted permission to appeal, it is going to be unhelpful and inappropriate to put in the direction that the inquiry must be commenced expeditiously.

I make clear that those declarations are not to be taken as being an exhaustive explanation in declaratory form of what the judgment says. One of the difficulties in this kind of case is in fact drafting declarations which do not either amount to the entire judgment being reproduced as a string of declaration, which is not very helpful; or, on the other hand, running the risk of it being said that the declarations are exhaustive and therefore one need look only to the declarations and not to the judgment. The declarations are, in the form I have indicated, appropriate so far as they go. But, so far as I am concerned, both the mandatory order in paragraph 1 and the declarations have to be read in conjunction with the judgment as a whole.

MS STERN: My Lord, I am grateful.

MR JUSTICE MUNBY: Ms Stern, would you and Mr Eadie be able, without further reference to me, to sort out the form of order?

MS STERN: My Lord, I would hope so.

MR JUSTICE MUNBY: If you cannot -- and I hope you can -- will you perhaps email the form over to my clerk and I will then simply clarify any remaining obscurities and adjudicate upon any remaining disputes.

MS STERN: My Lord, I am grateful.

MR JUSTICE MUNBY: The associate has just helpfully reminded me that the order does not actually include the repetition of the anonymity order.

MS STERN: My Lord, could I ask that that be included?

MR JUSTICE MUNBY: Yes. I think there is an existing anonymity order, but could you include it? Does that deal with everything?

MS STERN: I am grateful, my Lord.

MR JUSTICE MUNBY: Very well. An hour after I said I would do it, there are copies of the judgment for the associate and the shorthand writer, and there are copies of the judgment for anybody else who wants them.