CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 14 mars 2002

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display:inline-block } .sC0ADED72 { width:219.66pt; display:inline-block }     THIRD SECTION     CASE OF PAUL AND AUDREY EDWARDS v. THE UNITED KINGDOM     (Application no. 46477/99)     JUDGMENT     STRASBOURG     14 March 2002       FINAL     14/06/2002         In the case of Paul and Audrey Edwards v. the United Kingdom, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Mr   I. Cabral Barreto , President ,   Sir   Nicolas Bratza ,   Mr   L. Caflisch ,   Mr   P. Kūris ,   Mr   R. Türmen ,   Mrs   H.S. Greve ,   Mr   K. Traja , judges , and Mr V. Berger , Section Registrar , Having deliberated in private on 21 February 2002, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 46477/99) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two United Kingdom nationals, Paul and Audrey Edwards (“the applicants”), on 14   December 1998. 2.     The applicants were represented before the Court by Ms N. Collins, a solicitor working for Liberty, London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr D. Walton, of the Foreign and Commonwealth Office. 3.     The applicants alleged in particular that the authorities had failed to protect the life of their son, Christopher Edwards, who had been killed by another detainee while held in prison on remand. They relied on Articles 2, 6, 8 and 13 of the Convention. 4.     The application was allocated to the Third Section of the Court (Rule   52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. 5.     By a decision of 7 June 2001 the Chamber declared the application admissible [ Note by the Registry. The Court's decision is obtainable from the Registry]. 6.     The applicants and the Government each filed observations on the merits (Rule 59 § 1). The parties replied in writing to each other's observations. The Chamber decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 2 in fine ). 7.     On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). The above application remained with the newly composed Third Section (Rule 52 § 1). THE FACTS 8.     The facts of this case were subject to investigation before a private, non-statutory inquiry, which issued a report on 15 June 1998, setting out extensive findings of fact. As these were not contested by the parties, the Court has relied on the report in its own assessment of the facts below. I.     THE CIRCUMSTANCES OF THE CASE 9.     Prior to his death, Christopher Edwards had shown signs of developing a serious mental illness. In 1991 a psychiatric assessment expressed the tentative diagnosis of schizophrenia. In July 1994 he stopped living at home with the applicants, his parents. At this time he stopped taking his medication. 10.     On 27 November 1994 Christopher Edwards, then 30 years old, was arrested in Colchester by the police and taken to Colchester police station. He had been approaching young women in the street and making inappropriate suggestions. His behaviour before arrest, and at the police station where he attempted to assault a policewoman, led police officers to suspect that he might be mentally ill. He was assessed at the police station by an approved social worker, who discussed the matter on the telephone with a consultant psychiatrist. They agreed that, while there was some evidence of possible developing schizophrenia, he did not need urgent medical attention and that he was fit to be detained at the police station. Any psychiatric assessment could take place as part of a pre-sentencing exercise. Christopher Edwards was held in a cell on his own. The police officer responsible did not fill in a CID2 form identifying Christopher Edwards as an exceptional risk on ground of mental illness due to the opinion expressed by the social worker. The police officer did, however, note in the confidential information form (MG6A) her belief that if Christopher Edwards was not treated or seen by the mental health team he might seriously harm a female. She was not aware that her own suspicion of his mental state was sufficient to warrant categorising Christopher Edwards as an exceptional risk. 11.     On 28 November 1994 Christopher Edwards was brought to Colchester Magistrates' Court. Immediately his handcuffs were removed, he pushed through the other prisoners and confronted a female prison officer. He was restrained, but struggled and tried to approach her again. He was placed in a cell on his own. During the morning, he continually banged on the cell door and shouted: “I want a woman.” He shouted obscenities about women. The applicants met the duty solicitor at about 9.45 a.m. and explained that their son was mentally unwell and that they wanted him to receive medical care and not to be remanded in custody. When the duty solicitor attempted to talk to Christopher Edwards in his cell, he received no assistance from his client who continued to make obscene suggestions about women. The duty solicitor discussed the problem with the Clerk to the Justices. 12.     On his way to court and in the courtroom, Christopher Edwards repeated his earlier comments about women. The prosecutor had in her possession the MG6A form and had been requested by the police to obtain his remand in custody as there was a risk that he would reoffend and there was a real question mark about his mental state. The prosecutor informed the court that he was perceived as a risk to women, although it is unclear how much detail was given. She relied on the fact that an assessment by a psychiatrist had not yet been carried out in support of her application. Consideration was given by the Bench, together with the prosecutor, duty solicitor and Justice's Clerk as to whether he could be remanded to hospital. It was concluded that there was no power to do so under section 30 of the Magistrates' Courts Act 1980. No consideration was given, inter alia , to the application of civil provisions (sections 2, 3 or 4 of the Mental Health Act 1983) or to section 35 of the 1983 Act, which provided for remand to a hospital for assessment. 13.     The magistrates decided to remand Christopher Edwards in custody for three days, which was a shorter period than usual, bringing forward the date to 1 December so that instructions could be taken and legal aid forms completed. Further consideration would then be given, inter alia , to the obtaining of a psychiatric report. After the hearing, the first applicant telephoned the probation service in Colchester and expressed concern about his son's mental health. He was advised to contact Chelmsford Prison. He rang the probation officer at the prison and informed her of his son's medical history. Her telephone note indicated that she had been told that he had been prescribed stelazine, though he had been refusing to take it or accept that he was mentally ill. The probation officer visited the health care centre and spoke to the senior medical officer, Dr F. Although there was later dispute as to how much detail she passed on to the doctor, he recalled being informed that Christopher Edwards was considered to be a risk to women. However, having regard to the psychiatric social worker's comments that Christopher Edwards was fit for detention in a police station and the fact that the court had not ordered any psychiatric reports, he stated that he would not interfere with the usual admissions procedure which meant that Christopher Edwards would be screened on arrival in the usual way and his location in the prison would depend on the result of that process. Neither he nor the probation officer passed on any of this information to the reception staff. 14.     A prison officer returning to Chelmsford Prison from the Magistrates' Court informed the officer in charge of reception staff that a female prison officer had been assaulted by a prisoner who was due to arrive later that day. The police officers at the Magistrates' Court custody area suspected from his behaviour that Christopher Edwards was mentally abnormal and might be a threat to women and decided to warn the prison staff. A police officer rang and spoke to the senior officer at the prison reception and told him, inter alia , that the magistrates had wanted to remand Christopher Edwards to a mental hospital and that he had assaulted a female prison officer. The senior officer was concerned at this information and contacted the Magistrates' Court to verify whether he was being remanded under a normal warrant. He also spoke to the duty governor about the allocation of Christopher Edwards and it was decided, subject to the health care screening, that he should be located on wing D-1 where no female officers worked. 15.     In the late afternoon, Christopher Edwards was taken to Chelmsford Prison. The reception staff were aware of the information passed on from the police at the Magistrates' Court and that he was a potential danger to women. He was placed in a holding area while the other prison arrivals were processed. His behaviour was noted as “strange” and “odd” and when being placed in the holding cell he was aggressive and tried to punch a prison officer. After two hours he was screened by Mr N., a member of the prison health care staff, who saw no reason to admit him to the health care centre. Mr N. knew nothing about previous discussions in the court or the concerns passed on to the prison about Christopher Edwards's mental health. He was only aware that Christopher Edwards was alleged to have assaulted a female police constable. Mr N. followed the standard questionnaire. To question 5 (Have you ever been seen by a psychiatrist?), the answer was “three years ago”. Christopher Edwards did not disclose that he had been taking stelazine. There was no evidence of active mental disturbance or bizarre behaviour during the interview, which was unlikely to have lasted more than ten minutes. No medical officer was on duty at the centre at this time, or was present in the prison. Christopher Edwards was admitted to the main prison and placed in cell D1-6. 16.     He was detained in a cell on his own during this period. 17.     Meanwhile, Richard Linford was arrested in Maldon on 26   November 1994 for assaulting his friend and her neighbour. At Maldon police station, he was seen by a police surgeon as it was suspected that he was mentally ill. The police surgeon certified that Richard Linford was not fit to be detained. Richard Linford was assessed by a psychiatric registrar who consulted on the telephone with a consultant psychiatrist, who decided that he did not need to be admitted to hospital and that he was fit to be detained. Richard Linford was transferred to Chelmsford police station, where the police surgeon also found him fit to be detained. While his conduct before and after arrest was bizarre, it was attributed by the doctors to the effects of alcohol abuse, amphetamine withdrawal and to a deliberate attempt to manipulate the criminal justice system. The registrar, who had previously treated Richard Linford, knew that he had been diagnosed at various times as suffering from schizophrenia or as having a personality disorder, but also knew him as someone who became ill when abusing alcohol and drugs. Over the weekend, Richard Linford showed further bizarre behaviour and was violent towards police officers. He was not reassessed by a doctor. No CID2 form was filled in, although police officers remained of the opinion that he was mentally ill. On 28 November 1994 Richard Linford was remanded in custody by Chelmsford Magistrates' Court. The magistrates were presented with a “sane but dangerous” description of him. Richard Linford arrived at Chelmsford Prison shortly after Christopher Edwards, where he was screened by the same member of the prison health care service who had seen Christopher Edwards and who saw no reason to admit him to the health care centre. Richard Linford did not behave in a bizarre fashion during the screening. Mr N. did not have knowledge of Richard Linford's previous convictions, which would have alerted him to his admittance to hospital in 1988. 18.     Initially, Richard Linford was placed in cell D1-11 on his own. He was then moved into cell D1-6 with Christopher Edwards. This was due to shortage of space, as all the other cells on the landing were doubly occupied. 19.     Each cell had a green emergency light situated on the wall outside the cell next to the door which came on when the call button was depressed inside the cell. Additionally, once the button was pressed, a buzzer sounded on the landing and a red light lit up on a control panel in the office on the landing concerned, indicating the cell. The red light remained on and the buzzer continued to sound even if the prisoner ceased to press the button. At 9 p.m., either Christopher Edwards or Richard Linford pressed the call button. A prison officer saw the green light outside the cell and was told that they wished one of the cell lights, operated from the exterior, to be switched off. He agreed to do so. He saw that the two men appeared to be “getting on all right”. He noticed that while the green light had gone on the buzzer which should have been sounding continuously had not done so. He did not report the apparent defect. 20.     Shortly before 1 a.m. on 29 November 1994, a prison officer heard a buzzer sound. He saw no red light on the D-landing control panel and saw a prison officer go to check the other landings. Some time later, he heard continuous banging on a cell door on his landing. On going to investigate he saw the green light on outside cell D1-6. Looking through the spy hole, he saw Richard Linford holding a bloodstained plastic fork and noticed blood on the floor and on Linford's feet. There was a delay of five minutes while officers donned protective clothing. They entered the cell to find that Christopher Edwards had been stamped and kicked to death. Richard Linford was making continual reference to being possessed by evil spirits and devils. D-landing had previously been patrolled at 12.43 a.m., which indicated that up to seventeen minutes could have elapsed since the pressing of the cell's call button. 21.     At the time of the attack, Richard Linford was acutely mentally ill. He was transferred later on 29 November 1994 to Rampton Special Hospital. 22.     On 21 April 1995 Richard Linford pleaded guilty at Chelmsford Crown Court to the manslaughter of Christopher Edwards by reason of diminished responsibility. The trial was therefore brief. The judge imposed a hospital order under section 37 of the Mental Health Act 1983 (“the 1983 Act”), together with a restriction order under section 41. Richard Linford is currently still at Rampton Special Hospital, diagnosed as suffering from paranoid schizophrenia. 23.     A coroner's inquest had been opened but adjourned pending the criminal proceedings against Richard Linford. After Richard Linford's conviction, the coroner closed the inquest, as there was no obligation to continue in those circumstances. 24.     On 16 October 1995 the applicants were advised by the Assistant Chief Constable that it was considered that there was insufficient evidence to establish the offence of manslaughter by gross negligence on the part of anyone involved in the case but that the matter would be probably reviewed at the conclusion of the inquiry which had been commenced by the statutory agencies concerned in the case. 25.     In July 1995 a private, non-statutory inquiry was commissioned by three State agencies with statutory responsibilities towards Christopher Edwards – the Prison Service, Essex County Council and North Essex Health Authority. Its terms of reference were: “To investigate the death of Mr Edwards in Chelmsford Prison, including factors in his and Mr Linford's detention which are relevant to that, and in particular: the extent to which their reception, detention, management and care corresponded to statutory obligations, Prison Service Standing Orders and Health Care Standards and local operational policies. 1.     To examine the adequacy, both in fact and of relevant procedures, of collaboration and communication between the agencies (HM Prison Service, the Essex Police, the courts, MidEssex Community and Mental Health NHS Trust and its predecessor, and Essex County Council Social Services Department) involved in the care, custody and control of Mr Edwards and Mr Linford, or in the provision of services to them. 2.     To examine the circumstances surrounding the arrest, detention and custody of Mr Linford and Mr Edwards by Essex Police, including whether all relevant information was effectively and efficiently passed between Essex Police, the prison service, the courts, and any other relevant agencies ...; 3.     To examine all the relevant circumstances surrounding the treatment and care of Mr Edwards and Mr Linford, by the health service and social services, and in particular: the extent to which Mr Edwards and Mr Linford's care corresponded to relevant statutory obligations, relevant guidance from the Department of Health ... and local operational policies. 4.     To prepare a report and make recommendations to North Essex Health Authority, Essex County Council Social Services Department and HM Prison Service, and other such agencies as are identified as appropriate ...” 26.     In February 1996 the applicants were advised by their solicitors that they had a claim for funeral costs and a potential claim for compensation and any pain and suffering between Christopher Edwards's injury and death, but that taking into account legal costs it would not be economic to bring such a claim. 27.     In April 1996, the Criminal Injuries Compensation Board awarded the applicants 4,550 pounds sterling (GBP) for funeral expenses but decided that there should be no dependency or bereavement award. 28.     The inquiry opened in May 1996. It was chaired by Mr Kieran Coonan QC, Recorder of the Crown Court, the other members of the panel consisting of Professor Bluglass (Emeritus Professor of Forensic Psychiatry at the University of Birmingham), Mr Gordon Halliday (former Director of Social Services, Devon County Council and member of the Mental Health Commission), Mr Michael Jenkins (former Governor of Oxford Prison and Long Lartin Prison and HM Deputy Chief Inspector of Prisons 1987-92) and Mr Owen Kelly (Commissioner of the City of London Police 1985-93). They were assisted by a firm of solicitors appointed by the commissioning agencies to provide secretarial and administrative support and to arrange for the attendance of witnesses. Two solicitors from this firm were appointed as advocates to the inquiry. 29.     The inquiry received evidence on fifty-six days over a period of ten months. It sat in private. It had no powers of compulsion of witnesses or production of documents. Two prison officers refused to give evidence. The inquiry report later noted that one of these had potentially significant evidence and his refusal was said to be “all the more regrettable since he had passed by Christopher Edwards's cell shortly before he met his death”. The inquiry panel conducted visits to the police stations, Magistrates' Court building and prison concerned. Professor Bluglass, a member of the panel, interviewed Richard Linford in hospital. About 150 witnesses attended the inquiry to give evidence, while a considerable number of others submitted written evidence. 30.     In November 1997 the applicants issued a summons in the County Court for negligence against the Chief Constable of Essex and Essex County Council. They did not, however, serve it due to legal advice from their solicitors. 31.     Draft extracts of the inquiry's preliminary findings were circulated to those subjected to criticism to allow them the opportunity to comment. A number of witnesses were recalled to give evidence on 27 April 1998. 32.     The inquiry report was published on 15 June 1998. It concluded that ideally Christopher Edwards and Richard Linford should not have been in prison and in practice they should not have been sharing the same cell. It found “a systemic collapse of the protective mechanisms that ought to have operated to protect this vulnerable prisoner”. It identified a series of shortcomings, including poor record-keeping, inadequate communication and limited inter-agency cooperation, and a number of missed opportunities to prevent the death of Christopher Edwards. 33.     The findings included the following: (a)     Ideally, if suitable beds had been available, Christopher Edwards should have been admitted to hospital for assessment under section 2 of the Mental Health Act 1983. (b)     It was a serious omission, and breach of Code C of the Code of Practice under the Police and Criminal Evidence Act 1984 (“PACE”), that no doctor had been asked by the custody officer to see Christopher Edwards. (c)     It was a serious failure by Essex Police that a CID2 form was not completed describing Christopher Edwards as a prisoner reasonably suspected of being an exceptional risk on the grounds of mental disturbance, though it was noted that even if he had been so described by the police this would not have been enough, by itself, to ensure that he was admitted to the health care centre at Chelmsford Prison. (d)     At the Magistrates' Court hearing on 28 November 1994 no consideration was given to section 35 of the 1983 Act which provided for a remand to hospital for assessment. (e)     No attempt was made by the court to notify the prison authorities, in particular the senior medical officer, that Christopher Edwards was suspected of suffering from a mental illness. (f)     Information provided to the prison by the applicants about Christopher Edwards's psychiatric background was not recorded or passed on to the person carrying out the screening. (g)     When Christopher Edwards arrived at Chelmsford Prison there was no medical officer on duty, in breach of the Prison Service Health Care Standards. (h)     The prison health care worker, Mr N., who assessed Christopher Edwards was inadequately trained in the recognition of mental disorder and had been given insufficient guidance. The screening was rushed and superficial and did not take place in adequate conditions of privacy. (i)     Mr N. had not been provided with any information about the concerns as to Christopher Edwards's mental condition by the police or the court. If he had received a CID2 form identifying mental disturbance or the court had expressed some concern, this might have prompted sufficient residual doubts to cause him to err on the side of caution and have him admitted to the health centre for the first night. (j)     The cell's call system was defective; it had been pressed up to seventeen minutes before the alarm was raised by Richard Linford banging on the door and the warning buzzer had not sounded, or if it did it only sounded briefly. If it had functioned, a prompt response might have saved Christopher Edwards's life. The system could be disabled simply by wedging a matchstick behind the re-set button on the control panel and it could not be ruled out that it might have been tampered with by a prison officer or prisoner who wanted a “quiet night”. The fact that it could so easily be disabled rendered the system inadequate and unsafe. It was also noted that according to good practice, where the cell's call system was defective, either the occupants should be moved to another cell or effective visual monitoring should be provided, as a cell could not be certified fit for occupation without a method of communication in working condition. (k)     Richard Linford had a history of violent outbursts and assaults, including a previous assault on a cell-mate in prison. He had been admitted to mental hospital in 1988, and subsequently had been diagnosed as suffering from schizophrenia. Despite psychotic episodes and further assessments, he was not admitted to hospital after September 1994, as he was not considered to be suffering from acute mental illness. A case conference was held on 24 October 1994, where one of Richard Linford's general practitioners and a police officer expressed the view that he was capable of serious violence or murder. However, no formal risk assessment was carried out. The consultant psychiatrist did not accept that the risk to public safety was serious and it was decided to make one last attempt to induce Richard Linford to take depot medication before detaining him under section 3 of the 1983 Act. On 7 November 1994, it was reported to the consultant that Richard Linford was refusing depot medication. (l)     After Richard Linford's arrest on 26 November, no attempt was made to locate his medical notes before being assessed. The psychiatric registrar was unaware of the case conference or the outline plan to detain him. (m)     No CID2 form was filled in by the police for Richard Linford despite his attacks on two officers, as the officer concerned did not know that such a form existed. (n)     The police, prosecution and magistrates were aware that Richard Linford was described as dangerous but no formal warning was given to the prison authorities. (o)     At Chelmsford Prison, Richard Linford was screened by Mr N., who knew nothing about him except that he had been “difficult” in the police station; although the provision of a CID2 form would not have been conclusive, information about his previous convictions (and admittance to hospital) might have prompted a closer appraisal and he might have had sufficient doubts to have him admitted to the health care centre despite the absence of really bizarre symptoms. 34.     Following the publication of the report, the applicants sought advice as to whether there were any civil remedies available to them in the light of the findings of the inquiry. At a conference on 2 October 1998, they were advised by counsel that there were still no available civil remedies. The inquiry had made no relevant findings in relation to whether any time elapsed between their son being injured and his death, which would have determined whether they had any action in respect of pain and suffering experienced by their son before he died. 35.     By letter of 25 November 1998, the Crown Prosecution Service maintained their previous decision that there was insufficient evidence to proceed with criminal charges. The applicants' counsel advised on 10   December 1998 that, notwithstanding the numerous shortcomings, there was insufficient material to found a criminal charge of gross negligence against any individual or agency. 36.     By letter dated 15 December 2000, the Police Complaints Authority (PCA) provided the applicants with a report on their complaints about police conduct in dealing with Christopher Edwards and on the subsequent investigation into his death. The report upheld fifteen of the complaints and made a number of recommendations to Essex Police in relation to practice and procedure. It found, inter alia , a breach of the Code of Practice under PACE in that the police failed to summon a doctor to the police station when Christopher Edwards's behaviour led them to believe that he might be suffering from a mental illness and that, as regarded the failure of the officers to fill in a CID2 form identifying Christopher Edwards and Richard Linford as exceptional risks on grounds of mental disturbance, the officers concerned had been insufficiently informed as to the existence and purposes of the form. It also upheld complaints about the police investigation after the death, including a failure by the police investigators to test the cell buzzer properly to establish its effectiveness, the loss of the list of prisoners held on the relevant landing on the night of the incident and a failure to interview relevant persons in the prison, for example, Mr N., the health care worker, the prison doctor and the prison probation officer concerning the allegation of criminal negligence raised by the applicants.           II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Proceedings for death caused by negligence 37.     Under the common law, no one can recover damages in tort for the death of another. 38.     The Fatal Accidents Act 1976 confers a right of action for a wrongful act causing death. Section 1(1) provides: “If death is caused by any wrongful act, neglect or default which is such as would (if death had not ensued) have entitled the person injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured.” 39.     However, the statutory right of action is reserved to the deceased's dependants (section 1(2) which allows the recovery of their pecuniary loss). If there are no dependants, there is no pecuniary loss to recover as damages. Bereavement damages (fixed at GBP 7,500) are only available to the parents of a child under the age of 18 (section 1A(2)). Funeral expenses are recoverable (section 3(5)). 40.     The Law Reform (Miscellaneous) Provisions Act 1934 provides for the survival of causes of action for the benefit of the deceased's personal estate. The relevant part of section 1(1) provides: “Subject to the provisions of this section, on the death of any person after the commencement of this Act all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate.” 41.     This enables recovery on behalf of the estate of damages for losses suffered by the deceased before he died, including any non-pecuniary loss such as damages for pain and suffering experienced between the infliction of injury and death. Where death is instantaneous, or where it cannot be proved that the deceased experienced pain and suffering before death, damages are not recoverable under the 1934 Act and the only recoverable amount would be funeral expenses. B.     Cases under the Human Rights Act 1998 42.     Two cases have arisen since the entry into force on 2 October 2000 of the Human Rights Act 1998 concerning deaths in custody in which the domestic courts have examined the requirements of Articles 2 and 3 of the Convention. 43.     In R. on the application of Wright v. the Secretary of State for the Home Department ([2001] High Court, Administrative Court (England and Wales) 520, 20 June 2001), proceedings were brought by the mother and aunt of a man who died in custody as a result of a severe asthma attack in which it was alleged that his treatment prior to his death did not comply with Articles 2 or 3 of the Convention and that there had been a failure to provide a proper investigation into his death. The High Court found that it was arguable that the Prison Service had breached Articles 2 and 3 in its treatment of this prisoner and that, as the inquest and civil proceedings did not constitute an effective official investigation for the purpose of the procedural obligations under these provisions, the claimants were entitled to an order that the Secretary of State set up an independent investigation into the circumstances of the death. Although the death had occurred prior to 2   October 2000, the court held that there was a continuing obligation after that date to provide an effective investigation in the special circumstances of that case where the death was still the subject of active debate and controversy. 44.     In R. on the application of Amin v. the Secretary of State for the Home Department ([2001] High Court, Administrative Court (England and Wales) 719, 5 October 2001), where 19-year-old Zahid Mubarek was bludgeoned to death by a violent and racist prisoner, there was a claim that the Secretary of State had failed to hold an open and public investigation into the circumstances of the death. The High Court found that internal inquiry by the Prison Service and the criminal trial of the assailant did not constitute an effective investigation for the purposes of the procedural obligation under Article 2, principally as it did not establish why on that night Zahid Mubarek was sharing a cell with his assailant. The claimants were accordingly entitled to a declaration that an independent public investigation with the family legally represented, provided with the relevant material and able to cross-examine the principal witnesses, must be held to satisfy the obligations imposed by Article 2 of the Convention. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 45.     Article 2 of the Convention provides, in its first sentence: “1.     Everyone's right to life shall be protected by law. ...” 46.     The applicants complain that the authorities failed to protect the life of their son and were responsible for his death. They also complain that the investigation into their son's death was not adequate or effective as required by the procedural obligation imposed by Article 2 of the Convention. A.     Concerning the positive obligation to protect life 1.     Submissions of the parties (a)     The applicants 47.     The applicants submit that there was a breach of the positive obligation imposed on the authorities to protect the life of their son. Although the scope of such a positive obligation might vary, it was particularly stringent where an individual died in custody. The test was whether the authorities knew or ought to have known at the time of the existence of a real and immediate risk to his life from the criminal acts of a third party and whether the authorities failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. It was incorrect therefore to focus on what the authorities knew, as proposed by the Government, – a subjective approach – rather than the objective approach of considering what the authorities ought to have known. It is clear that the prison authorities knew, or least ought to have known, that there was a real and immediate danger to Christopher Edwards's life when they placed Richard Linford in his cell. They were aware or ought to have been aware of Richard Linford's dangerous condition and of Christopher Edwards's vulnerability. That the authorities actually knew is indicated, inter alia , by evidence given at the inquiry which showed that prison officers knew that Christopher Edwards needed to be isolated from other prisoners for his own safety and that they knew Richard Linford, who had been continuously involved in fighting, was not fit to be with other prisoners. The only reason given for placing both men together was to free a cell for other detainees. The Government's assertion that the procedures applied to the reception of prisoners was adequate is at odds with the changes made to the system following this case and others which raised public concern about mental-health screening of prisoners on their arrival at a prison. 48.     The applicants refer to the inquiry report's findings of various failures of one public authority to pass on to another information about the risks Richard Linford presented. In particular, although the police, the Crown Prosecution Service and the magistrates were all aware that he was dangerous and prone to violence, no formal warning was passed on to the prison, nor was any information made available about his past criminal or medical records. In addition, the positive obligation imposed by Article 2 rests on all public authorities, not only the prison authorities. The test should not be construed narrowly to focus on the particular agency or officer dealing with the victim at the time of the incident, but should take into account systemic failure involving a number of different authorities. 49.     Having regard to the knowledge available, or which should have been available to them, the authorities should reasonably have placed Christopher Edwards and Richard Linford in separate cells or, alternatively, they could have repaired the cell buzzer which was known to be defective or arranged for effective visual monitoring of the cell in which they were held. This case could be distinguished from Osman v. the United Kingdom (judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII), which concerned a series of missed opportunities in an investigation which might possibly have led to the detention of the individual who committed the killing, as in this case Christopher Edwards was actively exposed to the risk of harm by another by the very authorities in whose care he had been placed. Each of the identified failures were significant contributory factors in a chain of omissions which culminated in a fatal decision to place Richard Linford in a cell with Christopher Edwards. (b)     The Government 50.     The Government submit that there was no failure in any positive obligation imposed by Article 2 to protect the right to life of Christopher Edwards. The information available to the prison authorities in the period leading up to his death, when viewed objectively and without the benefit of hindsight, demonstrated that there was no real or immediate risk about which the prison authorities knew or ought to have known. Regard had to be paid to the medical evidence available and the consideration that the authorities had to act in a way which respected the other rights and freedoms of individuals. 51.     In this case, an experienced social worker and a consultant psychiatrist found that Christopher Edwards was fit to be detained in a police station and did not require urgent medical attention. Even if a doctor had been called to the police station, it is unlikely that this would have had any material impact on what happened. The inquiry found that the advice given by the consultant psychiatrist that Christopher Edwards was fit to be detained was reasonable. It is also a matter of speculation to claim that if the police had filled in a CID2 form, this would have led to his placement in the health care centre of Chelmsford Prison. When Christopher Edwards was admitted to prison and examined for admission to the health care centre, there was no evidence of bizarre behaviour. Nor do the Government accept that there was any failure to pass on information to the prison about his illness. A police officer had telephoned from the court to inform the prison reception that the court had wanted to commit him under the Mental Health Act 1983; a probation officer left a message that Christopher Edwards might be a risk to women, while the first applicant informed the prison probation officer of his son's mental illness. They emphasise that it was only necessary for a prisoner to be examined on reception in prison if the health care worker assessed him to be in need of urgent medical attention, the purpose of the screening being principally to identify quickly those prisoners in need of urgent treatment. The current policy is that new prisoners should be seen by a medical officer within twenty-four hours of admission, it being impossible to conduct thorough examinations of all newcomers on arrival in a busy prison. 52.     The Government also submit that it was normal policy in the prison for prisoners to share a cell and there was no evidence that the prison authorities knew that Christopher Edwards's cell's call system was defective. Further, after his arrest, Richard Linford was found by two doctors to disclose no signs of psychosis and was afterwards noted to be acting rationally and without aggressive behaviour. Even if the doctors who saw him at this stage had seen his medical notes and contacted his consultant psychiatrist, the inquiry noted that the consultant would have been content for Linford to remain in custody. Linford was also found not to be acting in such a way as to justify admission to the prison health care centre. It was his injuries and uncooperative attitude which initially led him to be placed in a cell by himself, not any suspected mental illness. Therefore, even if a CID2 form had been completed, it would be speculative to claim that this would have made any difference, as it would be to draw conclusions from the omissions made in the transmission of information about Linford. When the two prisoners were last seen together, there was no suspicion that Richard Linford would act violently towards his cell-mate. 53.     The Government accept that the inquiry's conclusion was critical of the “systemic” collapse of a number of mechanisms which, taken together, contributed to the death of Christopher Edwards. That, however, did not establish that the authorities had failed to comply with the positive obligation. The Government regretted this state of affairs and, in particular, the operational failure of the cell's call system, which had proved to be easily disabled. However, no system could rule out the possibility of mechanical defects. They argued that these matters were insufficient to lead to the conclusion that the authorities failed to do what they reasonably could, given their state of knowledge at the time. 2.     The Court's assessment (a)     General principles 54.     The Court reiterates that the first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see L.C.B. v. the United Kingdom , judgment of 9 June 1998, Reports 1998-III, p. 1403, § 36). This involves a primary duty on the State to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person backed up by a law-enforcement machinery for the prevention, suppression and punishment of breaches of such provisions. It also extends in appropriate circumstances to a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual (see Osman , cited above, p. 3159, § 115). 55.     Bearing in mind the difficulties in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, the scope of the positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Not every claimed risk to life, therefore, can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. For a positive obligation to arise, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (ibid., pp. 3159-60, § 116). 56.     In the context of prisoners, the Court has had previous occasion to emphasise that persons in custody are in a vulnerable position and that the authorities are under a duty to protect them. It is incumbent on the State to account for any injuries suffered in custody, which obligation is particularl