FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39953/07 
by Yvonne BAILEY 
against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 19 January 2010 as a Chamber composed of:

Lech Garlicki, President, 
 Nicolas Bratza, 
 Giovanni Bonello, 
 Ljiljana Mijović, 
 Päivi Hirvelä, 
 Ledi Bianku, 
 Nebojša Vučinić, judges, 
and Lawrence Early, Section Registrar,

Having regard to the above application lodged on 5 September 2007,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Yvonne Bailey, is a British national who was born in 1959 and lives in Denbyshire, Wales. She is represented before the Court by Mr Scott, a solicitor practising in London.

The applicant’s son, Joseph Scholes (“JS”) born on 20 February 1986, hanged himself while in detention at Stoke Heath Young Offenders Institution (“Stoke Heath”) on 24 March 2002. This application concerns issues relating to his death. The facts of the case, as submitted by the applicant, may be summarised as follows.

A.  The circumstances of the case

1. Background and conviction

By December 2000 three social services investigations had been carried out into allegations of ill-treatment of JS (then 14 years of age), concluding that the allegations were unfounded. During the third, concerns were raised about JS’ mental health. From January 2001 he was treated for depression and the relevant child services reported his behaviour as unpredictable and aggressive. During 2001 his behaviour continued to degenerate and in April 2001 he was referred to a psychiatrist (Dr F, a specialist in child and adolescent psychiatry) who found that he suffered from a conduct disorder with possible co-morbid depressive illness, that he was very vulnerable and that he risked harming himself. On 10 November 2001 an ambulance arrived at JS’ home following reports of his violent behaviour and he was abusive to the ambulance men. He was arrested for affray. A psychiatric assessment (mid-November 2001) diagnosed depressive conduct with abuse of alcohol and other substances and found that JS was a risk to himself and others and that custody would increase the risk of self-harm. Given his unstable family situation, a protection order was made and he was admitted to a local authority children’s home. On 6 December 2001 JS and two other children from the children’s home carried out three street robberies of mobile phones (it was accepted in later proceedings that JS had played a peripheral role).

On 11 December 2001 he was convicted on the prior affray charge. He was sentenced to a one year supervision order: he would continue in the children’s home and follow training and treatment options. JS continued to demonstrate vulnerability and present serious management problems and self-harm risk. Another psychiatrist who examined JS in February expressed much concern about his fragile emotional state, recommending containment and constant vigilance.

On 26 February 2002 he appeared at the Crown Court and pleaded guilty to the three charges of robbery. He was convicted and remanded on bail to the children’s home pending sentencing. In early March 2002 he slashed his face in his room in the children’s home over 30 times. The following day JS was reported as being under a great deal of pressure. He also went missing from the home from 7 to 9 March 2002 but returned of his own volition, after which he was charged with a breach of bail.

At the later hearing at the Crown Court for sentencing on the robbery charges, his counsel drew the trial judge’s attention to the Pre-Sentence Report (prepared by the Trafford Youth Offending Team, “Trafford YOT”) and, in particular, to references to his “history of self harm and ... threatened suicide” and to Dr F.’s belief that the “self harming behaviour may escalate”. Attention was also drawn to a letter from the applicant’s social worker which accompanied the Pre-Sentence Report and which also referred to attempted self-harm and to concern “for his safety and welfare given his history of low mood of self-harm when in distress”. When sentencing JS, the judge referred to those passages and stated that they had to be “most expressly drawn to the attention of the authorities”: that remark was made in the course of his counsel’s submissions and was substantially repeated in the trial judge’s sentencing remarks. The Pre-Sentencing Report concluded that JS would be at particular risk in the event of a custodial order and it recommended (supported by his social worker) a Community Punishment and Rehabilitation Order.

On 15 March 2002 in passing the sentence, the trial judge referred to remarks of the Lord Chief Justice that those who commit street robberies should receive immediate custodial sentences (Attorney General’s Reference Nos. 4 and 7 of 2002 [2002] 2 Cr App (R(S) 77). He made a 2-year detention and training order (a custodial order, “DTO”). JS could have been detained in a Young Offender Institution (“YOI”), in a Secure Training Centre (“STC”) or in a Local Authority Secure Children’s Home (“LASCH”). The Youth Justice Board (“YJB”) placed JS in Stoke Heath YOI and he was transferred on 15 March 2002.

Although his counsel advised in favour of an appeal against sentence (as manifestly excessive), an application for leave was not pursued.

2. Detention at the YOI at Stoke Heath

On arrival at Stoke Heath JS was on an open F2052SH form (at risk of self-harm) and placed in the health care unit. He was initially put in strip clothing (simple linen tunic, held together by adhesive strips under which he was naked). He was placed in a cell with reduced ligature points, a surveillance camera and high levels of observations. Within days he was moved to a single cell (in the health care unit) with no surveillance camera or reduced ligature points. Observation was reduced to 30 minute intervals.

An application was made by the Trafford YOT for JS’ transfer from the YOI but, prior to that being decided, on 24 March 2002 JS was found dead, hanging from strips of linen attached to the bars of the window of his cell.

3. Three “internal investigations” into JS’ death

On the day following JS’ death the West Midlands area manager for prisons instigated a prison service investigation (assisted by an advisory panel made up of experts from the Prisons and Probation Ombudsman’s office, Social Services and the YJB) and it was completed on 17 May 2002.

Deaths in custody are also automatically subject to a Serious Incident Review by a senior YJB manager or an independent consultant. A Local Management Report into the circumstances of JS’ death was prepared by the Operations Manager of the YOT (which had completed JS’ Pre-Sentence Report) and it was completed on 17 April 2002. This report was forwarded to the YJB in June 2002 and contributed to the Serious Incident Review. An interim report was presented to the YJB on 18 September 2002. A final report was prepared and presented to the YJB Audit Committee on 11 May 2004 following the receipt of the Coroner’s verdict (see below).

Following advice received from the Social Services Inspectorate and the YJB, the relevant Area Child Protection Committee (ACPC) agreed to conduct a full investigation of JS’ case under Chapter 8 of Department of Health guidance “Working Together to Safeguard Children” 1999. An independent author was commissioned to prepare the overview report and to chair the multi-agency panel established to steer the review process. The “Chapter 8 Case Review” began on 20 September 2002 and the Trafford ACPC adopted the final overview report in the summer of 2004.

4. House of Lords Debate – 1 April 2004

On 1 April 2004, during a debate in the House or Lords, one of the questions put to the Government was whether there would be an independent inquiry into the death of JS. Lord Bassam of Brighton responded on behalf of the Government. He noted that the Inquest would resume soon, that that would be complemented by a comprehensive summary of the lessons learned by the various agencies involved (which results would be shared with the applicant) and that, in the meantime, other improvements had been made to reception, protection and healthcare processes including training programmes.

5. Civil Proceedings

The applicant brought a civil claim against the Home Office and the YJB regarding JS’ death alleging negligence and a breach of the Human Rights Act 1998 (Articles 2 and 3 of the Convention) in relation to his allocation by the YJB to Stoke Heath and his treatment there. She also made a claim against the YJB under Article 14 (in conjunction with Articles 2 and 3 of the Convention) on the basis that the YJB was operating a discriminatory policy under which girls aged 16 years of age, whether vulnerable or not, were given priority over vulnerable boys over 16 years of age, for placement outside the prison service. The civil claim did not challenge the sentence imposed on JS as such a claim would have been prevented by section 9 of the Human Rights Act 1998.

A payment into court was made by the respondents. The applicant’s solicitor and counsel both advised her that the lodgement was a “reasonable offer” and a sum that she could reasonably expect from a court if the entirety of her claim was accepted. (The Court of Appeal later described this sum as “substantial”). She requested but was refused an admission of liability. The applicant felt obliged to accept the lodgement and the proceedings were settled in April 2004, before the Inquest opened.

6. The Inquest

The Inquest into JS’ death took place between 19 and 30 April 2004. The applicant was legally represented and present. The Inquest heard evidence, either in writing or in person, from 55 witnesses including the Chief Executive of the YJB and the Governor of Stoke Heath. The applicant submitted an expert report which outlined a number of factors which meant that boys of 16-17 years of age were most likely to be allocated to YOIs given the increase in child imprisonment particularly of girls; the increase of periods of custodial detention; and the policy of the YJB to prioritise children of 12-14 years of age for placement in STCs or LASCHs which inevitably reduced places for older juveniles. The above-noted reports of investigations already conducted were before the Coroner and he also commissioned his own expert psychiatric report in which the view was expressed that JS “simply should never have been allocated to Stoke Heath”.

The Coroner defined the scope of the Inquest as follows:

“(a) JS having been sentenced (we cannot go behind the sentence), was all relevant and necessary information available to properly reach a decision as to the appropriate allocation for [JS]?

(b) With that information and the sentencing judges’ remarks, what allocation options were available, what were considered and what criteria [were] used to exercise them? The inquest cannot go into matters of resources, save perhaps for observing that, if it is the case, that lack of resources may have been a factor whether critical or contributory?

(c) Having been allocated to [Stoke Heath] what then should have happened to [JS]?

(d) What should have been the correct approach once [JS] was on the hospital wing? Should more liaison have taken place between the Agencies. Did Stoke Heath have all the necessary relevant information, did it make the correct risk/ care plan assessment?

(e) To what extent did the differing Agencies know what the other was doing? It appears that the Trafford [YOT] were still trying to get [JS] transferred to a [LASCH] whereas those within the [YOI] were seeking to integrate him into the main wing i.e. further within the prison system. On the face of it, these aims conflict.

(f) Should it have been clear that [JS] was to remain on the hospital wing until secure accommodation was found? If so, should [JS] have been told this?

(g) Is it correct that in the light of the experience of others in [JS’] position being successfully integrated into the main wing that it was then right for [JS]? What if any thing was there to distinguish [JS] from any other inmate who had exhibited similar history and symptoms? What if anything could have been done to indicate that [JS] was different to the previous inmates and that he would react in the way that he did?

(h) Allocation and re-allocation I take as the same issue. The fact that the initial allocation did not succeed would that, as a matter of principle, negate the need to continue that process? ...

[Sentencing policy] or change in policy, which may on may not increase the number of children in custody, is not within the scope of this inquest. It is a matter of national interest which should be dealt with at that level.

The Inquisition form completed by the jury recorded a unanimous verdict of “Accidental death in part contributed because the risk was not properly recognised and appropriate precautions were not taken to prevent it.” The jury also responded to a “Middleton questionnaire” (R (Middleton) v. West Somerset Coroner and Another [2000] 2AC 182) which had been prepared by the Coroner in consultation with the parties’ legal representatives. A later report prepared by Mr Lambert (see below) summarised the jury Inquest’s conclusions and recommendations as follows:

“Quality of Pre-sentence Information

The Inquest concluded there were weaknesses in both the quality and handling of information at the pre-sentence stage. Although the Jury accepted that the Asset format was an appropriate way to bring together relevant information about the young person, they were critical of the [YOT] for its completion of the Asset assessment material and drew attention to the ‘Don’t Know ‘responses to key aspects of the Asset framework that they considered inadequate. Attention was drawn towards the importance of providing additional documentary evidence to support the Asset judgement, especially where vulnerability was the issue. The Coroner emphasised throughout the importance of providing a good psychiatric assessment of the young person and ensuring that the court and all relevant parties were in possession of this material.

Allocation Arrangements

The Inquest was unanimous in its conclusion that the placement of [JS] in a YOI was not appropriate and that he should have been placed in a [LASCH]. The Inquest heard evidence about the allocation arrangements and the difficulties in matching young people’s needs and appropriate services given the limited capacity of the local authority secure sector. The Coroner expressed great concern about this situation and also drew attention to those vulnerable 16 year olds who, because of their age, appeared even less likely to be able to access a secure children’s home.

The Coroner also recommended that the system for placement should hold open for a longer period the possibility of transfer to more suitable accommodation. Young people who are disturbed and vulnerable need to feel, and be made aware, that their initial placement may be reviewed. The Jury recommended that young people such as [JS] should be held in some temporary intermediate provision outside the main YOI estate while such considerations took place.

Quality of communication

The Coroner and Jury were concerned by what they perceived as failures in the communication arrangements and the passing of information between professionals. They made a general recommendation that these arrangements should be subject to review and improvement. In particular, they drew attention to their concern about the availability of the psychiatrist’s report and the gaps in communication between the [YOT] and Stoke Heath in respect of the transfer application. They also felt that more prominent means should be found by which to signal levels of risk.

Stoke Heath YOI Health Care Centre

The Inquest concluded that the care and attention given to [JS] by the medical, nursing and YOI staff at Stoke Heath Health Care Centre was provided in an appropriate way. However, there was unanimous condemnation of the building and its facilities.

Use of Safe Clothing

The Inquest learnt that [JS] had spent his first four days and nights in the Health Care Centre wearing only safer cell clothing with no underwear. Although this clothing was issued for [JS’] self protection, the Coroner and his Jury were concerned with the possible de-humanising aspects of this approach and recommended that the practice be reviewed.”

The single judge in later judicial review proceedings found that the Inquest was “a model of what was required to discharge the State’s investigative obligation under Article 2”.

7. Requests to the Secretary of State for a public inquiry

On 5 May 2004 the Coroner wrote to the Secretary of State (Rule 43 of the Coroners Rules 1984) requesting a public inquiry:

“Without going behind the sentence [JS] received at this Inquest it does seem to me essential that there is an urgent and comprehensive review of the pre-sentence exercise, the allocation process and the availability and provision of [LASCHs]. The statistics indicate that more young offenders are being sent to custody without a proportionate increase in [LASCHs] to accommodate the inevitable increased proportion of those receiving such sentences who are considered to be vulnerable. ...

It seemed clear to me that the allocation of disturbed and vulnerable young children (typically 15 and 16 year old boys) should be determined on a needs basis and not a resources basis. This is all the more important if Courts are sentencing such vulnerable and disturbed young offenders in the belief, mistaken or not, that recommendations, such as that contained in the pre-sentence report and endorsed by the Sentencing Judge can be implemented ...

In all the circumstances, and so that it can include Sentencing Policy which is an essential ingredient but outside the scope of the Inquest, I consider that the Review should take the form of a Public Inquiry where all interested parties can make their views known.”

On 16 September 2004 the Secretary of State responded to the Coroner that a public inquiry was not necessary given three reviews which he had initiated as regards the broader issues underlying JS’ death:

“In fact the new Sentencing Guidelines Council [“SGC”], established by the Government, and which is chaired by the Lord Chief Justice, is currently considering new guidelines on sentencing for robbery. I think it is right for the [SGC] to be the body which addresses the issues arising from [JS’] sentence, and I am formally asking the [SGC] to do this. I understand why you wanted to recommend a public inquiry to tackle this, but I think that the [SGC] does provide the most appropriate forum.

The operational issues you drew attention to are important and need to be looked into by someone with the necessary expertise to identify the realistic scope for improvement. I am asking David Lambert, a former Assistant Chief Inspector of the Social Services Inspectorate, to do this. David Lambert conducted the recent inquiry into the death of [X]. I enclose a copy of his terms of reference.

The configuration and development of the juvenile secure estate is a longer-term issue, which the [YJB] is addressing as part of its work on a new vision for the future of juvenile custody - on which it will be putting proposals to Ministers later this year. We have asked the [YJB] to take full account of the concerns expressed in the verdict of the inquest jury and relayed in your letter.”

In response to the applicant’s request for a public inquiry, on 16 September 2004 the Parliamentary Under-Secretary essentially repeating the above response of the Secretary of State. By letter dated 20 December 2004 the applicant was again informed that the Secretary of State did not intend to hold a public inquiry.

On 3 December 2004 the Coroner wrote to the Secretary of State re-expressing his concerns about the failure to hold a public inquiry. He welcomed the above-noted three lines of inquiry but was concerned that they might not adequately coordinate between each other.

On 14 December 2004 Parliament’s Joint Committee on Human Rights issued its Third Report of Session 2004-05 on Deaths in Custody. Referring to JS’ death and noting that there had never been a public inquiry into the death of a child in custody, it recommended a public inquiry and, further, that LASCHs should be used wherever possible with use of prison custody reduced to an absolute minimum. The Government’s detailed response to the Committee was published on 10 March 2005 and it, inter alia, referred to the three internal reviews and the Inquest into JS’ death. The three concerns of the Coroner would each be addressed by an appropriate review: the appropriateness of the sentence would be addressed by the SGC, the effectiveness of pre-sentence and placement procedures would be addressed by an operational review by Mr Lambert and the YJB would review whether the juvenile secure estate as then configured was able to fully provide for vulnerable young people. The Government firmly believed that those measures were the most appropriate, useful and focussed.

“The Government agrees with the Committee’s view that [LASCH] should be used wherever possible for children, with the use of Prison Service custody reduced to an absolute minimum. The Government uses only [LASCH] and comparable places in secure training centres for children under the age of 15, and for the more vulnerable 15 and 16 year olds. ... [A]ny sort of custody for young people should be a last resort, and that approach is enshrined in legislation .... For those young people whom the courts do send to custody, the [YJB] seeks to make the best possible use of available accommodation, taking full account of age and other factors that contribute to vulnerability. [LASCH] and [STCs] provide for the youngest trainees. It would not be appropriate for these young people to mix with older juveniles, who are generally placed in a [YOI]. The most vulnerable 15 and 16 year olds are also held outside [YOI]. The [YJB] considers that more provision is needed for vulnerable 15 and 16 year old boys, and its recent consultation paper Strategy for the Secure Estate for Juveniles proposes a new form of ‘intermediate’ accommodation, with smaller-scale units and more intensive staff support for trainees, which would address this need ...

The juvenile secure estate has evolved considerably since it was set up in 2000 and continues to develop. The Government believes the proposals in Strategy for the Secure Estate for Juveniles – the consultation period ends on 28 February – set a clear direction for the future of the estate.”

8. The three inquiries requested by the Secretary of State

(a) Sentencing Guidelines Council (“SGC”)

On 27 August 2004 the Secretary of State requested the SGC to review the JS case during its current consideration of guidelines for robberies. The SGC considered advice from the Sentencing Advisory Panel on sentences for robberies (notably of the type in JS’ case) and of juveniles. The SGC published draft guidelines and consulted publicly. In July 2006 “The Definitive Sentencing Guidelines on Robbery” were published by the SGC. The foreword noted that it was not intended to significantly change the prior practice of non-custodial sentences for the majority of young offenders who committed robbery. Certain recommendations were, however, made as regards the factors to be taken into consideration prior to making custodial sentences on young offenders including emphasising the welfare of the child. The Court of Appeal (see below) noted that the applicant was invited to make representations to the SGC but she submitted to this Court that she could not make an effective contribution to this process as her sole entitlement was to express her views as a member of the public.

Following the adoption of the Criminal Justice and Immigration Act 2008 with additional provisions as regards sentencing young offenders (including a comprehensive list of new community orders and a statutory recognition that a sentencing court must have regard to the welfare of the offender), the SGC then published further draft Guidelines (June 2009) entitled “Overarching Principles - Sentencing Youths”, requesting comments by 28 August 2009. As regards both the underlying principles/approach to sentencing and the choice of sentencing options (non-custodial and custodial sentences), the draft Guidelines emphasised the necessity for the trial court to consider the welfare of the young offender including the high incidence of mental health issues amongst young people in the criminal justice system, the vulnerability of young persons to self-harm (particularly within a custodial environment) and the high risks associated with young offenders in a custodial setting.

(b) the Youth Justice Board (“YJB”)

The Secretary of State also requested the YJB to take full account of the issues raised in the Inquest and by the Coroner in its current work on the configuration and development of juvenile secure estate.

In November 2004 the YJB published a draft strategy for the juvenile secure estate setting out the assumptions and principles that the YJB would use in developing the secure estate (including enhanced provisions for vulnerable older boys) and the steps it intended to take in the following three years to deliver these within available resources.

The context of the draft report was described as follows:

“... the YJB has sought to incorporate within this strategy the lessons learnt from serious incidents that have occurred in the secure estate for children and young people. This includes a specific request ... to take account of the Coroner’s concerns about the configuration and development of the secure estate in relation to vulnerable young offenders (concerns expressed following the inquest into the tragic death of [JS]).”

Responses were invited from interested parties. The applicant was given a copy of the draft Report and was asked for her views and advice: she did not make submissions as she considered that it was not an independent inquiry as the YJB would not accept its responsibility in JS’ death.

The final report (entitled “Strategy for the Secure Estate for Children and Young People, Plans for 2005/06 to 2007/08”) described the “Context” as including: a central theme of developing secure estate was that services in custody for young people were the same in custody as in the community; the publication of the Government green paper (“Every Child Matters” and the companion document (“Youth Justice – the Next Steps”) which again underlined the necessity to apply community service standards of child care in custody settings; the adoption of the Children Act 2004 (further to the Green Paper) had explicitly placed responsibility for safeguarding and promoting welfare on, inter alia, providers of custody for children and young people, which was the first time that custody providers had been drawn into mainstream children’s legislation in such an explicit way; and it repeated the reference to the lessons to be learned from the death of JS.

The assumptions that underpinned the Strategy were outlined. Custody should be used only as a last resort (citing the United Nations Convention on the Rights of the Child) and the YJB would work with the SGC to agree on an operational definition of “last resort”. Custody should be used particularly sparingly for young offenders because of their dependent, developing and vulnerable status and, while proportionately greater use was made of custody for them in the United Kingdom, the YJB was committed to developing community-based alternatives in which sentencers had sufficient confidence so that their proportionate use of custody for children and young people would fall progressively and the average daily number in custody was reduced; the principle, that punishment of custody lies in the loss of liberty itself and not in any gratuitously punitive aspect of the regime, should apply absolutely; and secure establishments, whatever form they take, were scarce and expensive, and their portfolio and characteristics could only be changed slowly so that the YJB would work closely with existing providers and explore whether additional providers can be encouraged to enter the field. While the demand for places and the Government’s provision of resources for such places were not determined by the YJB, it actively sought to influence both; the type of regime or interventions provided in custody should be based on what research considers was effective in preventing children and young people from offending and reoffending; and the rights of children and young people held in custody should be respected and upheld.

As regards the guiding principles, the YJB’s strategy was aspirational in the sense that it could not be achieved easily or quickly, given its starting point. The guiding principles of the YJB included ensuring a child-based culture, adequate and targeted training, safeguards and services needed to properly protect and assist young offenders.

Finally, it noted that the present portfolio of provision for children and young people in custody remained less than ideal and that its ambition was to create a suitable secure estate based on the above principles as rapidly as reasonably possible. The speed at which the YJB would achieve its ambitions would depend on the sentencing rates and resources attributed so that even a three-year strategy might be ambitious but the YJB was working with the relevant bodies on these two issues. The YJB went on to make detailed proposals for consolidating and enhancing the provision of places and services in the secure estate including for STCs, YOIs and LASCHs.

It concluded that evidence of independent assessors demonstrated that there had been significant achievements in commissioning secure accommodation for children and young people since April 2000, even if much remained to be done. An update to the strategy was published in 2007.

(c) Operational Review of Mr Lambert

Mr Lambert (a former Assistant Chief Inspector of the Social Services Inspectorate and Chairman of the Norfolk ACPC) examined the operational issues arising from JS’ case and, notably, the roles of the YOT, the YJB as well as the YOI itself. Having sent a draft of the Report to the Home Office in December 2004, he requested the applicant to make submissions. The applicant’s solicitors requested a copy of the report. She maintained that she heard nothing further until August 2005 when Mr Lambert contacted her indicating that a final draft of the Report had been submitted to the Minister: the applicant again requested a copy of the report and, while Mr Lambert was not at liberty to disclose the Report, he wished to meet with her. A further request for a copy of the report was made. The applicant was not provided, as she requested, with access to the draft report, and she did not therefore make submissions.

His final report entitled “Review of the effectiveness of Operational Procedures for the Identification, Placement and Safeguarding of Vulnerable Young People in Custody” was published by the Home Office on 18 September 2006. The agreed scope of the review, including the agreed Terms of Reference, was described in the Report as follows:

“The review will analyse:

- The policies, procedures and practices for the placement of young offenders, taking account of any recommendations that the [YJB] or Home Office have made since [JS’] death, and whether further improvements can be made. The review will refer to the Prison Service investigation, the Serious Incident Review on [JS] undertaken by the YJB and the work commissioned by the YJB Placement Programme Board and the Trafford ACPC Chapter 8 review. These contain recommendations that encompass both correctional services and the safeguarding of children.

The review will consider:

- Whether the information and documentation that a [YOT] prepares for sentencers on young people at risk of a custodial sentence/placement is adequate and appropriate, taking into account the work that the YJB is doing on the management of risk in the community.

- Whether improved guidance is needed on the [YOT’s] assessment of vulnerability or risk.

- Whether existing methods for the transfer of documentation between the [YOT], the court, the [YJB] Placements Team and the receiving establishment need improvement.

- The adequacy of YOI reception procedures and arrangements for the care of vulnerable trainees.

- The appropriateness of protective clothing for young offenders at risk of self-harm.

- Whether relevant changes are needed to staff training, in particular regarding the quality of the Asset assessment form, the risk of harm section and advice that the YJB is producing for [YOTs]: and the reception and care of vulnerable trainees.

The review will be a fundamental part of informing the family of [JS] about progress and ensuring action is undertaken by the key agencies following his death.

The review, in addition to findings on the matters listed above, will include a summary account of all investigations that have been conducted into [JS’] death and the operational issues arising from them. It will outline any implications for the juvenile secure arrangements as a whole and identify any recommended improvements. The review may make recommendations to the Minister on any good practice that is relevant to or becomes apparent during the review.”

The Report went on to highlight the main themes arising out of the three internal investigations and the Inquest and from the terms of reference. It summarised the conclusions of the investigations and Inquest, the subsequent domestic developments and any further recommendations:

As to the “Appropriateness of Placement”, the Report stated:

“All of the Investigations into the circumstances of the death in custody of [JS] concluded that young men who presented his level of risk are not appropriately placed in YOIs and that every effort should be made to secure their placement in a [LASCH]. There should be consideration of the development of discrete facilities within the YOI sector for young people demonstrably at risk of self-harm or suicide.”

As to “Quality of Assessment Work and the Management of Risk”:

“All the Investigations concluded that, by one means or another, the court considering [JS’] sentence had received explicit advice about his vulnerability, his history of self-harm and attempted suicide. Comparison was drawn between the quality of the pre-sentence report and the Asset assessment, the latter being considered incomplete and lacking in supporting evidence.”

As to “Placement of children and young people at High Risk in the Secure Estate”:

“All the Investigations closely examined the operations of the YJB Placements Team. There was a generally agreed conclusion that, accepting the complexity of the team’s task and the difficulties inherent in managing three sectors with differential levels of availability, more clarity needed to be introduced into the placement arrangements. Issues concerning the quality and transmission of information, and the arrangements for transfer between placements were also highlighted.”

As to “Reception of young people into YOIs”

“The Investigations into [JS] death concluded that at his admission all reception procedures in force at that time were carried out satisfactorily and that [JS] received a high level of care and attention. However, all four Investigations expressed reservation and uncertainty about the robustness of the transmission of information between the [YOT] and the YOI; in particular the timely availability of his psychiatric history. “

As to “Care and Sentence Planning”:

“One of the key issues identified by the various investigations into the death of [JS] related to the arrangements to plan for his stay at the YOI. There were concerns about the organisational arrangements for the planning meeting and its optimum timeliness. Some of the investigations recommended that a much shorter time than the YJB National Standard ... of within 10 working days of admission should now be adopted. The Investigations also expressed concern about arrangements for recording at YOIs”

As to “Provision of Health Care”

“Each of the four Investigations into the death of [JS] concluded that the care and attention given to Joseph by the medical, nursing and YOI staff at the YOI Health Care Centre was of good quality and appropriate to his level of need. There was unanimous criticism of the physical state of the Health Care Centre.”

As to “Management of self-harm and suicide in YOIs”

“Overall, the Investigations into the death of [JS] concluded that the YOIs suicide awareness strategy was sound and that it was applied with care and attention. The Prison Service Investigation recommended that some tightening of procedures would improve effectiveness.

As to “Accommodation of young people at risk in ‘safer’ cells:

“When in the Health Care Centre at Stoke Heath YOI, [JS] was subject to a prescribed 30 minute observation regime. As [JS] died within 20 minutes of the last recorded observation, the Trafford ACPC Chapter 8 Review recommended that YOIs adopt a 15 minute observation interval where young people are assessed as at serious risk of self-harm and are accommodated in a ‘safer’ cell. The Chapter 8 Review recommended continuous, direct observation in all other circumstances. The Prison Service Investigation recommended that telephone conversations of trainees under ‘at risk’ supervision be monitored.”

As to “Use of Protective Clothing”

“At the [the Inquest] the Jury were concerned to learn about the use of protective clothing and recommended a review of the practice.”

As to “Anti-Bullying Strategies”:

“The Investigations into the death of [JS] all agreed that one aspect of YOI life that he feared or that fed his apprehension about his sentence was the threat or belief that he would be subject to bullying should he move from the Health Care Centre to a residential unit.”

The conclusion in the executive summary of this report noted:

Since [JS’] tragic death, a wide range of measures have been taken to improve safeguarding of young people in [YOIs]. This [operational review] has carefully examined them and made recommendations for improvement. The YJB and the Prison Service have shown a commitment to change and have developed a set of policies and procedures that focus directly on safeguarding issues and have the potential capacity to deliver a more effective and safer service. But much more can be and needs to be done.”

9.  Judicial review

On 21 February 2005 the applicant requested leave to apply for judicial review arguing that two central issues regarding the death of JS remained unresolved despite the Inquest: the extent to which the sentencing policy resulted in JS being detained in conditions that gave rise to an unacceptable risk of suicide and, secondly, the reasons why JS was allocated to a YOI rather than a LASCH (including any lack of resources contributed to that allocation). The applicant maintained that the Secretary of State, in deciding not to convene a full public inquiry, had failed to comply with his duty under Article 2 of the Convention to investigate the circumstances of the death of JS. The Secretary of State argued that policy issues were beyond the scope of Article 2 and, alternatively, that the combination of the three internal investigations, the Inquest and the three reviews proposed by the Secretary of State satisfied the requirements of Article 2 of the Convention. On 13 June 2005 the applicant was granted leave to apply for judicial review. By judgment delivered 16 January 2006 the High Court dismissed the judicial review proceedings. On 1 March 2006 leave to appeal to the Court of Appeal was granted.

On 17 October 2006 the Court of Appeal rejected the appeal.

The principal judgment was that of Lord Justice Pill. He noted the evidence at the Inquest to the effect that JS should not have been at Stoke Heath but at a LASCH, that he would have been placed in a YOI even had the judge’s remarks been considered by the YJB and, given the available resources, it was almost inevitable, or overwhelmingly likely, that JS would go to a YOI. The trial judge was not at fault: his sentence was lawful, he specifically requested that information as to JS’ vulnerability be passed to the appropriate authorities and he was not obliged to inquire further since the duty to place offenders is upon the Secretary of State. While Lord Justice Pill did not exclude that a sentence could itself breach Articles 2 or 3 of the Convention, the present sentence did not.

The evaluation of the circumstances in which JS died was “thorough and no complaint about it is made in an Article 2 context”. Where failures were identified, however, investigation of the facts did not complete performance of the State’s obligations “unless consideration is given to effecting improvements” (Lord Justice Pill referring to domestic jurisprudence and to Öneryıldız v. Turkey, (no. 48939/99, 18 June 2002). He continued:

“Where the failures are of the kind identified in the present case, I do not consider that the Commission’s statement in Taylor that “wider questions” fall outside the scope of Article 2 is, as the law has now been interpreted, applicable to render unnecessary enquiries beyond the factual investigation provided by the Inquest. The statement in Jordan that detailed investigation of policy issues may not be necessary was in the context of a defective investigation of the facts. Such a defect does not necessarily give rise to policy issues. ...

The evidence at the Inquest revealed a worrying situation with regard to the detention of young offenders. On the evidence, vulnerable young offenders, such as [JS], have been detained in conditions unsuitable for their safety and their lives. That having been revealed in a properly conducted Inquest, there is, in my judgment, a duty upon the Secretary of State to investigate further what remedial action can be taken. Thorough investigation of facts at an Inquest would have little value in preventing a repetition and in maintaining public confidence, unless followed up.”

As a fact finding tribunal, the Inquest jury operated effectively. However, the jury could not be expected to give answers to questions of resources and policy which could provide reliable guides to an improvement in conditions.

However, there had been a substantial public debate and it was continuing. The investigations, assessments and debates in progress were such that the applicant had not established that the Secretary of State was in breach of Article 2 by failing to convene a public inquiry:

“I am far from persuaded that setting up a public inquiry is the only way in which the obligation under Article 2 can be discharged in this case. It is not a case in which the respondent, either expressly or by inaction, has failed to confront the issues which have emerged or failed to give serious consideration to possible improvements. The combination of the Inquest and the measures taken, including the input into the deliberations of the SGC, have achieved compliance with the Article 2 obligation.

Questions of sentencing policy and of the allocation of resources are essentially for collegiate consideration and decisions by the Government, following procedures which are well established, including those by which guidance is given to judges. I cannot hold that the only appropriate action is for a judge, however eminent, to be given the task of resolving such issues, at or following a public inquiry.”

As to the participation of the family of JS in the investigation, Lord Justice Pill noted that the family and their advisors were fully involved at the Inquest and in subsequent representations to the Secretary of State. They had also been invited to make representations to the SGC.

“The bereaved family and their advisors were fully involved at the Inquest and in subsequent representations to the Secretary of State. They have been invited to make representations to the SGC. It is recognised that they can make an input into questions of policy and resources but, because broad issues of public concern are involved, many other factors have to be taken into account and involvement in those issues cannot be expected to be to the same degree. Participation in issues of sentencing policy and the allocation of resources are in a different category from the investigation of facts in the particular case.

He concluded:

“If I am right that the Article 2 duty may extend beyond a factual investigation into a search for improvements, issues of policy may arise. In addressing them, the appropriate extent of the family’s involvement required, however serious the impact of the events upon them, is likely to be less than with the investigation of the facts. I do not accept that concern for the family’s involvement imposes an obligation on the Secretary of State to hold a public inquiry.

Lady Justice Arden agreed with the above reasoning and added that a distinction was to be drawn between “legal and political questions”. The applicant could not, by way of individual rights under Article 2, intervene in the political process which determined the allocation of resources as this would be to carry Convention rights further than Convention jurisprudence required (citing Taylor Family and Others v. the United Kingdom, no. 23412/94, Comm. Dec. 30.8.94, D.R. 79 p. 127).

On 14 March 2007 the House of Lords dismissed the applicant’s appeal: it did not raise an arguable point of law of general public importance which ought to be considered by the House of Lords, bearing in mind that the case had already been the subject of judicial decision and reviewed on appeal.

B.  Relevant domestic law and practice

1. Detention and Training Orders (“DTO”)

The main custodial sentence for young offenders is a DTO, it amounts to a sentence to custody of between four months and two years and it can be awarded against those of 12-17 years of age. Section 100 of the Powers of Criminal Courts (Sentencing) Act 2000 (“the 2000 Act”) provides:

“A detention and training order is an order that the offender in respect of whom it is made shall be subject, for the term specified in the order, to a period of detention and training followed by a period of supervision.”

Accordingly, the first half of the sentence is spent in custody whilst the second half is spent in the community under the supervision of the YOT.

Section 102(1) of the 2000 Act provides that the DTO shall be served in such secure accommodation as may be determined by the Secretary of State or by an authorised body. The YJB exercises this role.

2.  The Sentencing Guidelines Council (“SGC”)

The SGC was established in 2004 (the Criminal Justice Act 2003, the 2003 Act”) to develop, in place of the Court of Appeal, comprehensive sentencing guidelines for the courts to apply. The SGC is chaired by the Lord Chief Justice and has seven further judicial members (appointed by the Lord Chief Justice) from every tier of court that deals with sentencing in criminal cases. Four non-judicial members (experienced in policing, criminal prosecution, criminal defence and the interests of victims) are appointed by the Lord Chancellor, after consultation with the Lord Chief Justice and the Home Secretary. The SGC receives advice from the Sentencing Advisory Panel (which itself consults widely before tendering that advice). The SGC then produces a draft guideline on which it consults and the final guidelines, amended as appropriate following consultation, are published in final form approximately two months later.

3. The Youth Justice Board for England and Wales (“YJB”)

The YJB is an executive non-departmental public body, created by the Crime and Disorder Act 1998. At the relevant time it was funded and overseen by the Ministry of Justice, and the relevant Secretary of State appointed its Board members (10-12).

The YJB supervises the youth justice system in England and Wales. It advises the Secretary of State on the operation of, and standards for, the youth justice system; it monitors the performance of the youth justice system; it commissions secure estate for young people (it spends around 70% of its budget on providing custodial places); it sets and promotes the best standards for these facilities; it places children and young people remanded or sentenced to custody in appropriate accommodation within the secure estate; it makes grants to local authorities and other bodies to support the development of effective practice; and it commissions research and publishes information.

4. The Juvenile Secure Estate: YOI, STC and LASCH

The bulk of young men sentenced to DTOs are placed in YOIs managed by the prison service. YOIs hold young offenders between the ages of 15 and 21. There are some differences between YOI and adult prison regimes: the YOI has a better staff/offender ratio; at least 25 hours of education per week; and its overall objectives are helping the detainee improve behaviour, develop practical skills and prepare for employment.

STCs are purpose built centres for young offenders up to the age of 17 whose regimes are constructive and education-focused. STCs have a better staff/offender ratio and are smaller in size than YOIs, which means that individual needs are met more easily.

LASCH are designed to focus on very vulnerable children who present a range of serious physical, emotional and psychological problems. They are run by local authority social services departments, overseen by the Department of Health and the Department for Education and Skills. They have the best staff/young person ratio of all and are generally small facilities (6-40 beds). LASCH accommodate, not only juveniles on secure remand or following a DTO, but also children who are being looked after for welfare or behavioural reasons. LASCHs generally accommodate young offenders (12 to 14 years of age), girls under 16 years of age as well as boys who are 15-16 years of age assessed as vulnerable.

5. Inquests

An Inquest must be conducted where a body lies in the district of the Coroner and there are grounds to suspect that the person died a violent or an unnatural death or a sudden death of which the cause is unknown (section 8(1) of the Coroners Act 1988). The Inquest must determine the identity of the deceased as well as how, when and where he came by his or her death (section 11(5((b) of the 1988 Act) but the Coroners Rules 1984 provide that the verdict shall not accord blame to individuals for wrong doing or otherwise ascribe specific responsibility for death (Rules 36 and 42.

Rule 43 provides that:

“A coroner who believes that action should be taken to prevent the recurrence of fatalities similar to that in respect of which the inquest is being held may announce at the inquest that he is reporting the matter in writing to the person or authority who may have power to take such action and he may report the matter accordingly.”

6. Report of the United Nations Committee on the Rights of the Child, 9 October 2002

The Committee noted its extreme concern at the conditions experienced in detention and that children did not receive adequate protection or help in YOIs and it noted a very poor staff/child ratio, high levels of violence, bullying, self-harm and suicide, inadequate rehabilitation opportunities, solitary confinement in inappropriate conditions for a long time as a disciplinary measures or for protection, and the fact that girls and some boys in prison were still not separated from adults.

7. Report by the Commissioner for Human Rights of the Council of Europe of June 2005 (CommDH(2005)6)

Following his visit to the United Kingdom in November 2004, the Commissioner reported on numerous matters including the detention of juveniles (under 18 years of age) and young offenders (18-20 years of age).

The United Kingdom had one of the highest rates of juvenile detention in Western Europe. Having been in line with the European average during the early nineties, the numbers of juvenile and young offenders increased significantly between 1995 and 1997 before stabilising. Those high rates of incarceration had inevitably impacted on the conditions of detention. Special attention to the educational and psychological needs of juveniles and young offenders was required if their detention, at such a critical time in their development, was to contribute to their rehabilitation and reinsertion and it was difficult to conclude that those imperatives were being entirely satisfied. Indeed the overall impression of the Commissioner was of a detention system that placed too much emphasis on punishment and control and not enough on rehabilitation.

As far as juveniles were concerned, the Commissioner was informed that their conditions of detention had improved in recent years with greater investment in LASCHs and STCs and in the services provided to children detained in YOI. However, he noted two serious shortcomings. He was struck on his visit to one YOI by the apparent lack of appropriate psychological care and the inadequate educational assistance provided. His discussions with other actors suggested that these problems arose, to a greater or lesser extent, throughout the juvenile and young offender detention estate.

In its response of 8 June 2005, the Government referred to a comprehensive review of each custodial establishment where young people were held, to new measures to address self-harm and suicide, to a new staff training package with an enhanced child protection module and to further funding for 25 local authority staff to undertake duties in YOIs.

8. Attorney General’s Reference Nos. 4 and 7 of 2002 [2002] 2 Cr App (R(S) 77

The Chief Justice of the Court of Appeal expressed the following opinion in this case:

“In giving this judgment we are not seeking to set new guidelines. If we were intending to do so, we would have sought the advice of the Sentencing Advisory Panel before giving this judgment. Instead, we are seeking to draw together the principles which are already clearly established by the reported decisions of this court. Before coming to the facts of the individual applications, we wish to set out certain information which has been obtained by research conducted on behalf of the Home Office. It is published as Study 235, dated December 2001, entitled “Mobile Phone Theft”. The research contains certain findings as to the level of mobile phone thefts and robberies and identifies a marked increase in the incidents of such offences. ... Twelve per cent of those asked said that they had been victimised at least once. The risk of phone theft for those in the ages between 11 and 16 is five times higher than that for adults. The results show a substantial growth involving the theft of telephones. Figures from six police forces suggest that the number of recorded phone thefts has at least doubled between 1998/99 and 2000/01. There was an increase in the proportion of robberies involving telephones from about 8 per cent in 1998/99 (an estimated 5,500 phone robberies), to about 28 per cent in 2000/01 (an estimated 26,300 phone robberies). No doubt part of the increase was due to the greater phone ownership during that period. ...

Faced with that background the courts have no alternative but to adopt a robust sentencing policy towards those who commit these offences. Those who do so must understand that they will be punished severely. Custodial sentences will be the only option available to the courts when these offences are committed, unless there are exceptional circumstances. That will apply irrespective of the age of the offender and irrespective of whether the offender has previous convictions. However, both those factors are very important when a judge comes to decide on the length of sentence.”

COMPLAINTS

The applicant complained that her son’s sentence amounted to a violation of Articles 2 and/or 3 of the Convention.

She complained that there was a substantive breach of her son’s rights guaranteed by Articles 2 and 3 since the sentence of the trial court was inevitably incapable of being administered in a Convention compliant manner given the absence of a sufficient number of secure places fit for the detention of children highly vulnerable to suicide and self harm.

She also complained about a procedural violation of Article 2 since there has been no public inquiry involving sufficient public scrutiny into the relationship between the sentencing and placement options available in JS’ case.

THE LAW

1. The applicant complained that her son’s sentence and placement in a YOI amounted to a breach of the substantive protections of Articles 2 and/or 3 of the Convention. Article 2, in so far as relevant, reads as follows:

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. ...”

Article 3, in so far as relevant, reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

She submitted that placement in a LASCH (rather than a YOI) would have been suitable for JS but there were insufficient places available due to insufficient financial resources, a high and increasing level of custodial sentences for young persons and the prioritisation of LASCH places to girls under 17 years of age. It was inevitable from the outset that his DTO would not be administered compatibly with the Convention and the trial judge had no control over this. She also suggested that JS should not have been accorded a custodial sentence at all as it was not considered as a last resort.

The Court recalls that in respect of a complaint of a substantive violation of Article 2 of the Convention, the possibility of obtaining compensation for the death of a person will generally, and in normal circumstances, constitute an adequate and sufficient remedy. Where a relative accepts a sum of compensation in settlement of civil claims and renounces further use of local remedies therefore, he or she will generally no longer be able to claim to be a victim in respect of those matters (Caraher v. the United Kingdom (dec.), no. 24520/94, ECHR 2000-I; and Hay v. the United Kingdom (dec.),41894/98). Similar considerations arise as regards a substantive violation of Article 3. The Court is not persuaded that the applicant can still claim to be a victim of a violation of a substantive breach of Articles 2 or 3 of the Convention.

In the first place, it considers that the civil proceedings initiated by her were per se an effective manner of challenging the failures which the applicant maintained constituted a violation of Articles 2 and 3 of the Convention. The applicant challenged JS’ placement and treatment in the YOI at Stoke Heath arguing that this was negligent and a breach of Articles 2 and 3. It is true that she took issue before this Court with the initial ordering of a custodial sentence and that this could not have been challenged in the civil proceedings (having regard to section 9 of the Human Rights Act 1998). However, she also accepted that a custodial sentence with placement in a LASCH could have been Convention compliant. Accordingly, her civil proceedings alleging negligent conduct and practices of official bodies as regards JS’ placement and treatment in the YOI could have provided effective redress (see the above-cited Caraher decision, in which the Court found the applicant was no longer a victim of a substantive breach of Article 2 having settled civil proceedings concerning alleged negligence in the setting up and planning of a security force operation).

Secondly, her settlement of those proceedings meant that she could no longer claim to be a victim of a violation of a substantive breach of Articles 2 or 3 of the Convention. The respondents made a lodgement into Court and her legal advisors advised her to accept it as it was sufficiently close to what the domestic courts would have ordered in damages had they found in her favour. A refusal to accept the lodgement and continuing the proceedings would have exposed her to a risk of a later costs’ order against her, should the court have in fact made a comparable damages’ award. The applicant therefore accepted the lodgement without an admission of liability and settled the proceedings. While she submitted that she felt obliged by the costs’ risk to accept the lodgement and settle the case, the Court considers, as in the above-cited Caraher decision, that such considerations inevitably influence settlement choices but do not render that choice involuntary or thereby maintain the applicant’s status as a victim of a violation of a substantive breach of Articles 2 and 3 before this Court.

Accordingly, the Court finds that, in bringing civil proceedings for damages in respect of the death of JS, the applicant has used the domestic remedies available and that, in settling those claims for a substantial sum of compensation and in renouncing further use of these remedies, she may no longer claim to be a victim of a violation of the substantive guarantees of Articles 2 or 3 of the Convention within the meaning of Article 34 of the Convention.

This complaint must therefore be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. The applicant also complained under Article 2 that the investigations and inquiries to date were inadequate because there had been no public inquiry into the relationship between sentencing policy and placement (in the secure juvenile estate) policy with adequate participation by JS’ family.

The Inquest did not cover the issue of JS’ sentence and the resources of the State allocated to secure juvenile estate were not within its scope. Certain related issues were not therefore investigated including the difference in care between LASCHs and YOIs and the extent to which the policy decisions to prioritise the use of LASCHs for girls resulted in a shortage of LASCHs for vulnerable boys such as JS. The three inquiries launched by the Secretary of State (the SGC, YJB and Mr Lambert’s operational review) were not sufficient either individually or collectively. Neither process actually investigated the sentencing exercise in JS’ case and the reports (published at the date of her application) by those bodies made no findings as regards JS’ sentence or death. There was insufficient public scrutiny involved. The role of JS’ family was inadequate, they having the same role and weight as any member of the public for the SGC and the YJB. The YJB had expressly accepted that it was not an investigatory body and the SGC had no remit to investigate individual cases. All three inquiries failed to consider the precise relationship between the maintenance of custodial sentences for such young offenders when many would inevitably be detained in inappropriate accommodation.

The Court recalls 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 disciplinary remedies were available to the victims (Vo v. France [GC], no. 53924/00, § 90, ECHR 2004-VIII; Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 51, ECHR 2002-I; Mastromatteo v. Italy [GC], no. 37703/97, § §§ 90 and 94-95, ECHR 2002-VIII; Öneryıldız v. Turkey [GC], no. 48939/99, § 92, ECHR 2004 XII; and Banks and Others v. the United Kingdom (dec.), no. 21387/05, 6 February 2007). A procedural obligation indeed arose to investigate the factual circumstances leading to the death of JS. He was a prisoner under the care and responsibility of State authorities when he committed suicide so that the State was under an obligation to initiate and carry out an investigation which fulfilled the requirements referred to above (Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 74, ECHR 2002-II).

The Court would note, at the outset, that there is no suggestion on the part of the applicant, or indeed of any of the domestic bodies or authorities, that the applicant’s son was intentionally killed or died as a result of recklessness by the authorities or that criminal or disciplinary proceedings should have been initiated in those respects. Indeed, had the Inquest jury returned a verdict of “unlawful death”, the Director of Public Prosecutions would have been required to reconsider any decision not to prosecute and to give reasons which were amenable to challenge in the courts (see, for example, Bubbins v. the United Kingdom, no. 50196/99, § 153, ECHR 2005-II (extracts)).

The applicant had, in the first place, the opportunity to participate in an Inquest. The Court has already had occasion to find Inquests capable, in principle, of fulfilling the requirements of effective investigation in many contexts including in the case of a death in custody (Douglas-Williams v. the United Kingdom (dec.), no. 56413/00, 8 January 2002; Younger v. the United Kingdom (dec.), no. 57420/00, ECHR, 7 January 2003, as regards England and Wales; and Slimani v. France, no. 57671/00, § 76, ECHR 2004-IX (extracts), as regards France) and the Court considers, for the reasons noted below, that the present Inquest effectively fulfilled its fact-finding role.

The Inquest clearly investigated, established and made public the factual matters causative of JS’ death. While returning a verdict of “accidental death”, the Inquest jury explicitly recognised certain failures, to appreciate the risk to JS and to take appropriate precautions, as causative of death: those matters were outlined by the jury in the “Middleton questionnaire” (R (Middleton) v. West Somerset Coroner and Another [2000] 2AC 182). Those findings of the Inquest jury were meticulously summarised and analysed in Mr Lambert’s impressively detailed Operational Report, which summary the Court considers it can adopt. Mr Lambert described a series of precise factual circumstances identified by the Inquest as causative of JS’ death. Those included that young men with JS’ level of risk were not appropriately placed in YOIs; the Asset assessment was incomplete and lacking in supporting evidence; even accepting the complexity of the task of the YJB’s placement team and the difficulties inherent in managing three sectors of the secure juvenile estate with differential levels of availability, there was insufficient clarity in the placement arrangements; there had been an unsatisfactory (insufficiently robust and not timely) quality and transmission of information notably between the YOT and the YOI; the arrangements for transfer between placements could also be criticised; the planning of JS’ stay at the YOI was neither sufficient nor timely; and one aspect of YOI life that JS feared or that fed his apprehension was the threat or belief that he would be subject to bullying should he move from the health care unit in Stoke Heath to a residential unit. Criticism was also made of the use in JS’ case of the protective clothing. Indeed, the Court has noted the striking concordance, identified in Mr Lambert’s report, between the factual matters criticised by the Inquest and by the three prior internal investigations. The applicant does not challenge the procedures before or the evidentiary conclusions reached by the Inquest, and the Court does not see any reason to do so.

Secondly, and in addition to the Inquest, the applicant initiated and settled the above-described civil proceedings in negligence. While civil proceedings may not, of themselves, satisfy the State’s procedural obligations under Article 2 (as noted above), these proceedings were supplemental to the Inquest and covered, notably, the YJB’s placement processes, the configuration of the juvenile secure estate as well as JS’ treatment at Stoke Heath.

Indeed, the only matter with which the applicant took issue under the procedural aspect of Article 2 was the failure to hold a public inquiry on wider questions (not covered by Inquests or civil proceedings) concerning the interaction between sentencing policy (the making of a custodial sentence in application of relevant sentencing guidelines) and the configuration of the juvenile secure estate (rendering JS’ placement in a YOI inevitable, explained in large part by priorities for placements in LASCHs and, more generally, a lack of resources). She thereby suggested that the investigative obligation of Article 2 required a State to go beyond the factual investigation and to identify the broader policy issues constituting the background thereto.

The Court recalls that in the above-cited Taylor case the Commission acknowledged that wider issues (concerning the organisation and funding of the National Health Service as a whole or the pressures which might have led to a ward being run subject to the shortcomings apparent in that case), were within the public domain and any doubts which might consequently arise as to policies adopted in the field of public health were matters for public and political debate which fell outside the scope of Article 2 and the other provisions of the Convention. The Court then found, in the case of McBride v. the United Kingdom ((dec.), no. 1396/06, 9 May 2006, and decided just before the Court of Appeal judgment in the present case) that questions such as the composition of the armed forces and the existence of appropriate disciplinary regulations and machinery appeared to be matters of general policy for public and political debate that fell outside the scope of Article 2 of the Convention. More recently, in the above-cited Banks and Others v. the United Kingdom case (decided after the Court of Appeal judgment in the present case), the Court found that there was no general requirement in Article 2 to provide a public inquiry into the general background to a suspicious death where the ordinary mechanisms had provided adequate scrutiny of the incident itself (the Court in that case relying on the above-cited Taylor decision).

Accordingly, and since the Court has found that the ordinary mechanisms provided adequate scrutiny of JS’ death itself (the Inquest and the availability of civil proceedings to the applicant), the Court considers that there was no general requirement in Article 2 to provide, in addition, a public inquiry into the wider sentencing and placement policy issues which constituted the general background to JS’ death.

It is true that the Court of Appeal appeared to accept that the procedural obligations of Article 2 might extend beyond factual investigations. However, Lord Justice Pill concluded that, as shown by the inquiries conducted and by the Government’s responses to the Committee on the rights of the Child and in the House of Lords, such wider issues had been the subject of active consideration and there was every indication that the issues involved, both in sentencing policy and in the allocation of resources, were at least being confronted. The investigations, assessments and debates in progress, in which the family of JS had been involved to an appropriate extent, were, in his view, such that it had not been established that the Secretary of State was in breach of Article 2 by failing to convene a public inquiry into the specific case. Nor did concern for the family’s involvement in issues of policy extending beyond investigation of the facts of the particular case impose such an obligation for such an inquiry. Lady Justice Arden agreed with the reasons in Lord Justice Pill’s judgment but, nevertheless, considered the relevant policy issues to be beyond the scope of Article 2 (explicitly relying on the Taylor decision). In agreement with the Court of Appeal, the Court concludes that, insofar as Article 2 may be interpreted as requiring not merely the existence of ordinary mechanisms whereby the factual circumstances of the death itself may be scrutinised but an investigation of the wider issues, including policy questions, which might be raised by the death, this obligation was fully satisfied in the present case without the necessity of a public inquiry into sentencing and placement policy issues.

It follows that there has been no failure to comply with any procedural obligation under Article 2 of the Convention and that this complaint must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Lawrence Early Lech Garlicki 
 Registrar President

BAILEY v. THE UNITED KINGDOM DECISION


BAILEY v. THE UNITED KINGDOM DECISION