Recent judgments under European human rights legislation have important implications for UK detainees, says Alison Macdonald


New developments under articles 2 and 3 of the European Convention on Human Rights indicate potential new avenues of redress for detainees in the UK. The cases have looked at the obligation to investigate near-deaths in custody under article 2, which guarantees protection of life, and the relevance of article 3, which prohibits inhuman and degrading treatment, to the standard of medical care provided to detainees in custody.



Several recent cases brought these matters into sharp focus. In R (D) v Secretary of State for the Home Department [2005] UKHRR 917, proceedings were brought on behalf of D, a 21-year-old man who had made a serious suicide attempt in Pentonville prison. He survived, but was left with very serious and permanent brain damage. The Secretary of State accepted on the facts of the case that the investigative obligation in articles 2 and 3 was triggered: D had a recent history of serious suicide attempts, of which the prison was aware, and there were clear issues about whether more could have been done to address that risk.



The issue in dispute was what was required in order to fulfil that obligation. The secretary of state proposed a private investigation by the Prisons and Probation Ombudsman, at which D's family would not have a right to be present throughout or ask questions. If D had died, a full inquest would have been held.



Mr Justice Munby took a different view to the Secretary of State. He held that there was no logical justification for treating a failed suicide attempt leading to serious injury differently from that of a death in custody. He considered that the Prison Service internal investigation which had been carried out could make only a minimal contribution to the fulfilment of the article 2 obligation. He considered that a full inquiry was necessary, and that this should take place in public, that it should be capable of compelling the relevant witnesses, if necessary, that D's representatives must be able to attend all public sessions of the inquiry and to put questions to witnesses directly, that D's representatives should be provided with reasonable access to all relevant evidence in advance, and that adequate funding should be provided by the Secretary of State to allow D to participate fully, through his representatives.



The D inquiry was set up by the ombudsman on the basis set out by the Court of Appeal. Evidence was heard over four days in July 2007, with further evidence at a resumed hearing in November 2007 (see www.ppo.gov.uk). The ombudsman's report is awaited.



D is important authority for the proposition that there is no principled distinction to be drawn between a case where a prisoner dies (where an inquest would be held) and a case where a prisoner is left seriously injured as a result of a suicide attempt. This creates the opportunity for other prisoners in similar circumstances, or their families, to argue for a public investigation of the same type.



In R (JL) v Secretary of State for the Home Department [2006] EWHC 2558 (Admin), Mr Justice Langstaff ordered an article 2 compliant obligation into the serious self-inflicted injuries which a claimant sustained by hanging in Feltham. In that case, unlike in D, the Secretary of State did not concede that the article 2 investigative obligation had arisen on the facts, but the judge held that it had. He was not asked to rule in detail on what the article 2 compliant investigation required in that case. The decision is notable for the court's conclusion that the test should be whether the state or its agents potentially bear responsibility for the life-threatening event, unless particular circumstances make it plain that the state is not responsible. This appears to set a lower threshold than that envisaged in the case of D.



The Court of Appeal dismissed the appeal of the Secretary of State [2007] EWCA Civ 767. The court emphasised that, where there was a death or serious injury in custody, other than in a plain case where there could be no potential breach of the convention, the state had to carry out an independent initial investigation of its own motion.



If the independent investigator formed the view that potentially the state might have failed in its obligations to protect life, a full D-type inquiry would be required. On the facts, such an inquiry was required. Given the tragically high number of such incidents which occur in prison, there are likely to be further cases in which a similar inquiry is sought.



Human rights and prison healthcare

The European Court of Human Rights is also developing a body of case law on standards of medical care under article 3. This is an important development, since prison healthcare has been notoriously poor, and many of those in detention, whether in prison or other forms of custody, will have complex health needs. Additionally, poor standards of medical care are frequently exposed by inquests into deaths in custody. Given the poor standard of medical care still provided in many British prisons, it is possible that individual cases could give rise to arguments on article 3.



In a series of cases against France, the court has considered when the treatment of a seriously ill prisoner will give rise to a violation of article 3. In one such case, Mouisel v France [2004] 38 EHRR 34, the applicant was diagnosed with leukaemia in 1999. He was released on licence in 2001. The court found that his treatment between diagnosis and release had violated article 3. It took into account the fact that, although the applicant's serious illness was deteriorating fast and the prison was not equipped to deal with it, the prison took no steps to have him admitted to hospital for treatment. He eventually received chemotherapy sessions in hospital, but was chained while in transit. In all the circumstances, the court found that this treatment undermined his dignity and caused acute hardship over and above that inevitably entailed by his illness and the fact of imprisonment.



Also relevant is Farbthus v Latvia, App No 4672/02, 2 December 2004, where the court found that a delay in releasing the applicant from prison on licence had violated article 3, since the applicant - who was already 84 years old and in extremely poor health when sent to prison for crimes against humanity and genocide - had become even more seriously ill while in prison. Inadequate medical treatment also led the court to find violations of article 3 in Pantea v Romania [2005] 40 EHRR 26, Melnik v Ukraine, App No 72286/01, 28 March 2006 (failure to treat tuberculosis), and Khudobin v Russia, App No 59696/00, 26 October 2006.



The Mouisel case shows that article 3 does require that medical care of a reasonable standard be given, so as not to cause undue suffering. It would be possible for a seriously ill prisoner to argue that his illness should be taken into account in making decisions about his liberty - for example, compassionate release or parole. If there is no legal mechanism available to argue for release, but the conditions of detention are causing undue hardship or inadequate medical treatment is being provided, this situation could be challenged by way of judicial review.



Alison Macdonald is a barrister at Matrix Chambers in London. This article is based on a speech she gave to the Sweet & Maxwell/Justice Human Rights Conference 2007