R (P) v SSJ [2009] EWCA Civ 701
The refusal of the SSJ to hold an inquiry into P's detention in YOI Feltham was lawful: (1) Article 2 is only engaged where there is a "real and immediate" risk to life; the risk from P's self harming, while real, was not immediate. (2) There was no arguable breach of Article 3 in the delay in transfer to hospital. Had there been an arguable Article 3 breach: in general, an inquiry would not have been mandatory; in this particular case, it would not have been necessary as the relevant facts were known.
ICLR
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
Headnote
HUMAN RIGHTS — Right to life — State’s duty to investigate self-harm — Young offender in detention repeatedly self-harming — Statutory exclusion of psychopathic disorders precluding transfer for treatment — Whether “real and immediate” risk to life prerequisite — Whether exclusion of psychopathic disorders from statutory provisions proper subject of inquiry — Mental Health Act 1983, s 48 — Human Rights Act 1998, Sch 1, Pt 1, arts 2, 3
Summary
Where it was contended, pursuant to art 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms as scheduled to the Human Rights Act 1998, that the state should investigate the treatment accorded to a self-harming young offender while he was in detention, a “real and immediate” risk to life was a prerequisite.
The Court of Appeal so stated, inter alia, when dismissing the appeal of the claimant, P, from a decision of Mitting J, sitting in the Administrative Court on 30 June 2008 ([2008] EWHC 1656 (Admin)Not on Bailii!), refusing him permission to apply for judicial review of the refusal of the defendant, the Secretary of State for Justice, to hold an inquiry into P’s detention in Feltham Young Offenders’ Institution between 2 March 2007 and 5 June 2008. P repeatedly self-harmed and now claimed that there was an obligation upon the state pursuant to arts 2 and 3 of the Convention on Human Rights, to investigate the treatment accorded to him while he had been in detention.
STANLEY BURNTON LJ said that the art 2 duty was reviewed in R(Amin) v Secretary of State for the Home Department [2004] 1 AC 653B and subsequent authorities, from which it was clear that there was a requirement of “real and immediate” risk to life; and a reference by Waller LJ in the Court of Appeal case of R(L) (A patient) v Secretary of State for Justice [2008] 1 WLR 158B to “serious injury” was to be interpreted as identifying the same criterion. The instant case was not one of suicide or attempted suicide, and there was not an “immediate” risk to life although the risk was “real”. As to art 3, the Secretary of State was not obliged to conduct an inquiry by the investigative obligation there adumbrated because: (i) there was no evidence of an arguable breach, which was a requirement; (ii) the exclusion of psychopathic disorders from s 48 of the Mental Health Act 1983 (now amended by the Mental Health Act 2007), which had precluded P’s transfer to hospital under that provision, was not the proper subject of an art 3 inquiry; and (iii) even if there were an arguable breach, the Secretary of State would not necessarily be under an investigative duty because not every case of an arguable breach required an inquiry; and on the present facts there was no necessity for an inquiry because all the relevant facts were known. Accordingly, the claim for judicial review was dismissed.
JACOB and WARD LJJ agreed.
Other
[2009] EWCA Civ 701B; [2009] WLR (D) 234
CA: Ward, Jacob, Stanley Burnton LJJ: 6 July 2009
Appearances: Ian Wise (instructed by Howard League for Penal Reform) for P; Javan Herberg (instructed by Treasury Solicitor) for the Secretary of State.
Reported by: Matthew Brotherton, barrister