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Independence of investigator

In the case of SP v Secretary of State for Justice [2009] EWHC 13 (Admin) Pitchford J held that an examination of the independence of a person engaged to conduct an investigation under Article 2 of the Convention into the treatment of a young offender was not sufficiently independent as he was (i) a social acquaintance of one of the witnesses and (ii) during the investigator’s career he had acted as a consultant to the prison service on policy initiatives and was closely concerned with the policy areas on which he had been asked to formulate recommendations. The application for judicial review was considered on a number of grounds inter alia that “the investigation ordered by the Secretary of State lacks the requisite independence”. The learned judge considered helpfully a number of the relevant authorities including a number of the ECHR authorities. The English authorities concerning Article 2 investigations concern largely death in custody cases. The House of Lords considered the issues recently in R (on the application of JL) v. Secretary of State for Justice [2008] UKHL 68 where Lord Phillips observed at paragraph 31: “The duty to investigate imposed by Article 2 covers a very wide spectrum. Different circumstances will trigger the need to different types of investigation with different characteristics. The Strasbourg court has emphasised the need for flexibility and the fact that it is for the individual state to decide how to give effect to the positive obligations imposed by Article 2”.

In this case the House of Lords without casting any aspersions on the integrity of the investigator decided that a former prison governor could not have the requisite degree of independence required in an Article 2 investigation. The degree of independence required of an Article 2 investigation has been outlined in several of the Strasbourg cases in terms similar or identical to the following:

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

(See Hugh Jordon v. United Kingdom [2001] Application No. 24746/94: Kelly and Others v. United Kingdom [2001] Application No. 30054/96: Edwards v. United Kingdom [2002] 35 EHRR 19, paragraph 70.

The Court in SP emphasised that the primary obligation identified by the European Court was to carry out an effective investigation. In order for that investigation to be effective of course the necessary defined levels of independence of such an investigation must be adhered to. In the case of Edwards (supra), even in the presence of a legally qualified chairman could not save the lack of independence or the presence of other persons party to that investigation. On the contrary the court found that none of the members had any hierarchical connection which deprived the inquiry of theoretical and practical independence.

Other examples where independence has been challenged but nonetheless the independence of the investigator upheld where Hackett v. United Kingdom [2005] Application No. 34698/04 and Queen v. United Kingdom [2005] Application No. 28079/04 where attempts were made to cast doubt on the independence of the Police Complaints Authority and its investigation procedures. In SL the Court was invited to apply a higher standard of independence for Article 2 investigations than would the European Court of Human Rights relying on the speech of Lord Brown in R (Al Skeini) v. Secretary of State for Defence [2007] UKHL 26 at paragraphs 105 and 106 referring to R (Ullah) v. Special Adjudicator [2004] UKHL 26) where it was accepted that a state could legislate so as to provide for rights more generous than those guaranteed by the Convention and that the national court should not without strong reason dilute or weaken the effect of the Strasbourg case law. Lord Brown remarked that whilst the applicant was able to go to the European Court of Human Rights if the state had not implemented appropriate standards and construed the Convention Rights too narrowly the State could not go to Strasbourg if the Convention Rights had been construed too generously in favour of the applicant.

In reaching his decision the learned judge in SL emphasised that the obligations under Article 2 investigations were that the prison service should lose no time in appointing and independent investigator and that the nature of the decisions that the investigator would have to make demonstrates the importance of the need of his independence: (e.g.:

(i) the preservation of physical and documentary evidence;

(ii) the scope of initial inquires and the setting of priorities for the further inquiries;

(iii) the identification of relevant factual and where appropriate expert witnesses;

(iv) at what point and to what extent investigator should invite participation by the injured persons and their family;

(v) whether to recommend to the Ministry of Justice (MoJ) that the investigation should proceed to a public stage and if so what form it should take; and

(vi) the formulation of advice on management procedure and policy for consideration by the MoJ.)

The learned judge could see no reason why on one view a retired prison officer could not be objectively independent, but if on the other hand there were questions raised about national policy such as prison services orders or procedures which would have impinged on his own experiences and possible involvement in prison service operations, such a function may have deprived him of the practical independence necessary to have performed his work effectively. The risk the learned judge identified was that the investigator’s past experience might cause him uncritically to accept an institutional view which would not otherwise be accepted, except after thorough analysis and testing, by an investigator appointed from a discipline outside of the prison service. In this case an individual having spent his working life applying prison service policy and procedure was now expected to apply an independent critical analysis to it and the learned judge held that such conflict was necessarily bound to impinge on his independence.

Comment The lessons from this case are that one must look deeper than simply the title of the individual investigator, and beyond that title to the nature of his previous working involvement in the issues under consideration, and how it might impinge on the questions that he may be asked to resolve in the course of his investigation. If there comes a point that conflict or perceived independence was likely to arise as a result of his previous experience and the application of (for example prison policy) his previous experience and roles may deprive him of the necessary independence to perform his function effectively. It was made absolutely clear that this judgment was made with the full acceptance that the personal integrity and experience of the investigator was beyond reproach.

 

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