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The nine judge decision of the UK Supreme Court in R (Smith) v Secretary of State for Defence [2010] UKSC 29 runs to some 127 pages.  Curiously, however, in the opinion of Lady Hale all of the views expressed by the Justices on the two issues before the Court – the extent of the territorial reach of the European Convention of Human Rights (and whether or not British troops operating abroad fell within its ambit); and the nature and extent of the procedural obligations to investigate deaths imposed by Article 2 ECHR – were obiter.   

As she notes at paragraph 135:

“I doubt whether any of the important and interesting things which are said about those questions in this court can be part of the essential grounds for our decision and thus binding upon other courts in future.”

It is not the intention of this note to analyse in full the judgment of the court and the many interesting, although apparently non-binding observations made by each of the judges on a whole gamut of legal issues raised.    The note wishes to highlight only one issue, namely the question of whether or not the State’s procedural duties to investigate deaths under Article 2 arises only when there can be said to be an arguable or possible breach of its substantive duties to protect life under Article 2 ECHR.    The reason for highlighting this issue is that it is not clear that the remarks of certain of the Justices on the issue accurately reflect the current Strasbourg case law.

Is the procedural obligation to investigate death parasitic upon the substantive obligation to protect life ?

Lord Phillips says this (at paragraphs 65, 69):

It has been stated on a number of occasions that the procedural obligation under article 2 is parasitic upon the existence of the article 2 substantive right and cannot exist independently – see, for example, Lord Bingham’s observations at para 6 of R (Gentle) v Prime Minister [2008] AC 1356  ..

Before addressing the Inquest Issue directly I propose to explain a number of reservations that I have in relation to the procedural obligation: (i) I do not see how the procedural obligation can work if it is limited to an obligation to hold an article 2 investigation if, and only if, there are grounds for suspecting a breach by the State of a substantive article 2 obligation.

By contrast Lord Hope says at paragraph 96:

“[T]he procedural obligation that is imposed by article 2 [i]n broad terms… is triggered by any death occurring in circumstances in which it appears that any one or more of the substantive obligations that article 2 imposes not to take life without justification, and to establish a framework of laws, precautions, procedures and means of enforcement which will to the greatest extent practicable protect life, has been, or may have been, violated in circumstances in which it appears that agents of the state are, or may be, in some way implicated: R (Middleton) v West Somerset Coroner [2004] 2 AC 182, paras 2 and 3. The procedural obligation depends on the existence of the substantive right. It cannot exist independently: R (Gentle) v Prime Minister [2008] AC 1356, para 6.”

And Lord Mance states at paragraph 200, 202:

“Article 2 has two aspects; one substantive, the other procedural. The latter is “implied in order to make sure that [the former is] effective in practice”; and “is parasitic upon the existence of the substantive right, and cannot exist independently”: R (Gentle) v Prime Minister [2008] UKHL 20; [2008] AC 1356, paras 5-6, per Lord Bingham; and see Jordan v United Kingdom (2001) 37 EHRR 52, para 105 and Edwards v United Kingdom (2002) 35 EHRR 487, para 69. ….

202. In its procedural aspect, article 2 requires member states “to initiate an effective public investigation by an independent official body into any death occurring in circumstances in which it appears that one or other of the foregoing substantive obligations has been, or may have been, violated and it appears that agents of the state are, or may be, in some way implicated”: Middleton, para 3. “Thus to make good [a] procedural right to the inquiry” which the respondent seeks, she “must show … at least an arguable case that the substantive right arises on the facts ….”: Gentle, para 6, per Lord Bingham.”

It seems to have been a matter of concession by counsel for the petitioners in Gentle that the Middleton decision accurately summarized the state of the Strasbourg case law, and that the procedural obligations under Article 2 only arose where there was an arguable case of a failure on the part of the State or its agents in the substantive obligation to protect life.   But in the decision of the Court of Appeal in R (Gentle and another) v. Prime Minister and others [2007] QB 689, CA the then Master of the Rolls Sir Anthony Clarke MR (now Lord Clarke of Stone-cum-Ebony) at 724-5 paras 77-78 expressly rejected – as not properly founded in law – the concession made by the applicants’ counsel that the procedural obligations under Article 2 only arise if there is an arguable breach of the substantive obligations, noting:

77 … [I]t was common ground during the argument that there is no obligation on a member state to carry out an investigation under article 2 unless it is at least arguably in breach of the substantive obligation in article 2. Following the decision of Richards J in R (Goodson) v Bedfordshire and Luton Coroner [2006] 1 WLR 432, this court held in R (Takoushis) v Inner North London Coroner [2006] 1 WLR 461 that that proposition is not correct.  That was a case in which the deceased had been a patient in an NHS hospital. The court held, at para 38, that article 2 was engaged whenever a person dies in circumstances which give reasonable grounds for thinking that the death may have resulted from a wrongful act of one of its agents, as for example by negligence on the part of a member of staff at an NHS hospital.  The court further held, at paras 98-99 and 105-109, that in such circumstances the state owes a duty to carry out an appropriate investigation under article 2 even if it was not arguably in breach of its substantive obligation in article 2.

78 It thus appears, at any rate as the case law stands at present, that a state may be under an obligation under article 2 to carry out an appropriate investigation even if not arguably in breach of the substantive obligation in article 2. However, assuming that to be the case (contrary to the common ground between the parties), that does not affect the reasoning which has led us to conclude that the United Kingdom does not owe a duty to investigate the invasion question.”

Consistently with analysis of the Master of Rolls in Gentle, in R (L) v Home Secretary [2009] 1 AC 588 the House of Lords unanimously rejected the contention made by counsel for the Secretary of State that an article 2 ECHR investigation was only required where the State was in arguable breach of its substantive article 2 ECHR duty to protect life.    Lord Phillips of Worth Matravers observed (at para 29):

“29 These observations [by Lord Bingham in R (Gentle) v Prime Minister [2008] 1 AC 1356 at paras 5-7]  were directed to the obligation imposed by article 2 to hold a public investigation. They should not be read as suggesting that the state never has a duty to carry out an investigation into a life-threatening incident unless there is reason to believe that it may demonstrate that state agents have failed to perform the substantive obligations imposed by article 2.  Still less do they support an argument that the only object of such an investigation is to ascertain whether or not state agents have been in breach of duty.  The investigation will be concerned to see what lessons can be learned for the future, whether or not there has been fault in the particular case.”

Lord Rodger of Earlsferry confirmed (at paras 59-60):

“Mr Giffin argued on behalf of the Secretary of State that article 2 did not require an independent investigation to be held unless there was some positive reason to believe that the authorities had indeed been in breach of their obligation to protect the prisoner.   That argument is mistaken.”

Lord Walker of Gestingthorpe agreed (at para 87)

“Lord Bingham did not therefore restrict the purpose of an independent investigation to establishing a past violation of the state’s substantive obligations.  He included the wider purpose of learning from experience, whether or not there have been identifiable failures, systemic or operational, for which the management of the Prison Service as a whole, or particular individuals within the Prison Service, must take responsibility.”

As did Lord Brown of Eaton-under-Heywood (at paras 100-1:

“100. … The appellant Secretary of State, however, contests the need in such cases for any article 2 investigation except where the state is in ‘arguable breach’ of its substantive article 2 duty to protect life and this, he submits, will only be so when arguably the prison authorities knew or ought to have known of a real and immediate risk of the prisoner committing suicide and failed then to take reasonable preventive measures.

101 For the reasons given by my noble and learned friend, Lord Phillips of Worth Matravers, whose opinion I have had the advantage of reading in draft, I too would reject that argument and dismiss the appeal.”

And Lord Mance (at paragraph 113):

113.  In common, I understand, with all of your Lordships, I would reject the Secretary of State’s submission that an article 2 investigation is only required where the state is in arguable breach of its substantive article 2 duty to protect life, in the sense that it ought arguably to have known of a real and immediate risk of a prisoner committing suicide and failed to take out reasonable preventive measures.”

Against this background, and the fact that the House of Lords decision in R(L) was expressly referred in the judgments of both Lord Hope and Lord Rodger in (R (Smith) to it is surprising that the idea of the procedural obligation to investigate deaths being somehow parasitic or dependent on an arguable breach of the substantive obligation under Article 2 should apparently be being resurrected.

The false systematization of the Strasbourg jurisprudence on Article 2

In a number of cases before the English courts arguments have been essayed on behalf of the UK government which seek to make sharp distinctions within the Strasbourg case law relating to Article 2 investigations and create a descending hierarchy of lessening strictness in the requirements on the State to hold an Article 2 compatible investigation and public inquiry (Regina (Takoushis) v Inner North London Coroner and another [2006] 1 WLR 461, CA).

Among the supposedly separate categories were these: first, cases involving allegations of direct responsibility or collusion by State agents (such as the police or army) in a death or serious injury;  secondly, cases involving death or serious injury (whether from self-harm or arising from attacks by other inmates) of individuals held in custody; finally and cases involving death or serious injury of individuals in hospital (See R(Amin) v Secretary of State for the Home Department [2003] QB 581, per Lord Woolf CJ at para 32).   The attempt has been made to argue that cases falling into the first category of direct State responsibility will always carry with them a procedural requirement for a full investigation in to the circumstances of the death or injury  Those cases falling into the supposed second category were said only to attract Article 2 duties to carry out a full investigation in cases “only where there is an arguable case that the State has failed somehow in its duties of care and supervision of those held by it in custody”.   And in the third category, the suggestion has been made that cases involving non-detained patients who died or were seriously injured while in the care of the NHS will only attract procedural investigative duties under Article 2 where there has been “gross negligence” ((See for example Richards J. in  R (Goodson) v Bedfordshire and Luton Coroner [2006] 1 WLR 432, para 59).

The problem for this kind of categorisation of the Strasbourg case law before the English courts is that the European Court of Human Rights does not make these hard and fast distinctions.   Instead the Strasbourg court applies a flexible fact specific test to the cases which come before it to the effect that where a death occurs in situation which raises issues of public concern – regardless of issues of direct, indirect State involvement or issues of clinical negligence (gross or otherwise) – then the failure on the part of the State to ensure a full inquiry into the facts will constitute a breach of Article 2.

Thus the English courts have found it difficult to fit into their neat three-fold categorisation cases in which the Strasbourg court has found that the Article 2  procedural duties are, for example, engaged and breached where there has been a failure to hold a public inquiry into deaths resulting from natural disasters (see for example Budayeva and Others v. Russia [2008] ECtHR 15339/02 (20 March 2008, First Section) or from workplace accidents (Pereira Henriques v. Luxembourg [2006] ECtHR 60255/00 (9 May 2006, Fourth Section)) or from attacks on individuals by other private individuals (Angelova and Iliev v. Bulgaria (2008) 47 EHRR 7.)

The (rapidly) evolving Strasbourg jurisprudence on Article 2

The Strasbourg cases show that Article 2 is being interpreted ever more broadly in the course of the last fifteen years, applying initially to killings by State agents, then applying to failures on the part of the State to prevent killings by third parties; then requiring investigations into killings by State actors.    From around 1999 the Strasbourg Court began to apply Article 2 to the field of health care, articulating an obligation on the part of the State to do “all that could have been required of it to prevent the applicant’s life from being avoidably put at risk” (see Powell v United Kingdom (2000) 30 EHRR CD 362 and also L.C.B. v. the United Kingdom (1999) 27 EHRR 212)    And in 2002, the Grand Chamber of the Court in Calvelli and Ciglio v. Italy [2002] ECtHR 32967/96 (17 January 2002, Grand Chamber) confirming the extension of Article 2 obligations into the field of health care policy, held that the requirement previously implied into Article 2 for the State take appropriate steps to safeguard the lives of those within its jurisdiction applied not only to criminal law enforcement but also in the public-health sphere such as to impose positive obligations on the State to make regulations compelling hospitals to adopt appropriate measures for the protection of their patients’ lives.

In 2003 in the non-admissibility decision in Menson and others v. UK (2003)  37 EHRR CD 220 which concerned the murder of black male as a result of being set on fire by assailants during a racist attack the Court held for the first time that “the absence of any direct State responsibility for the death” of an individual did “not exclude the applicability of Article 2”   The first finding by the Court of a breach of Article 2 procedural duties in respect of a death in respect of which there had been no direct State responsibility occurred in 2006 in the decision in Pereira Henriques v. Luxembourg [2006] ECtHR 60255/00 (9 May 2006, Fourth Section) a case in which a building labourer had been killed by the collapse of a wall on a construction site subsequently followed by the 2007 finding of a breach of the procedural obligations in a non-State killing in Angelova and Iliev v. Bulgaria (2008) 47 EHRR 7.

The Strasbourg case law is then quite unequivocal in rejecting the claim of the procedural obligation to investigate deaths being dependent on an arguable breach of the substantive obligation on the part of the State to protect life. For example, in Slimani v. France (2006) 43 EHRR 49 the Strasbourg Court found that there was a breach of the procedural obligation under Article 2 ECHR notwithstanding that the European Court considered that applicant’s complaint of breach of the substantive obligation was inadmissible because of her applicant’s failure to exhaust her statutory remedies in this regard.  In Šilih v. Slovenia (2009) 49 EHRR 37 a decision of the Grand Chamber of  9 April 2009 concerning a death in a hospital resulting apparently from medical negligence the Strasbourg Court summarized the current state of evolution of the duties imposed on the State under and in terms of Article 2 ECHR

(i)                 the procedural obligation under Article 2 has not been considered to be dependent on whether or not the State is ultimately found to be responsible for the death (para 156)

(ii)               The Court examined the question of procedural obligations under Article 2 quite separately from the question of compliance with the substantive obligation and, where appropriate, it has found a separate violation of Article 2 on that account  (para 158)

(iii)             The Court held that it was possible to find there to be a breach of a procedural obligation under Article 2 even in the absence of any complaint as to the substantive aspect of Article 2 (para 158)

(iv)             The procedural obligation to carry out an effective investigation under Article 2 may therefore be said to have evolved into a separate and autonomous duty from the substantive duty to protect life under Article ECHR.(para 159)

(v)               The procedural steps required by Article 2 ECHR include not only an effective investigation into the death of the person concerned but also the institution of appropriate proceedings for the purpose of determining the cause of the death and holding those responsible to account (para 163).

More recently yet in another hospital death case, Eugenia Lazar v. Romania [2010] ECtHR 32146/05 (16 February 2010, Third Section) the Court held there could be said to be no effective remedy for the purposes of the procedural obligations under Article 2 where all that was theoretically available was an action for private law damages which would have been very uncertain to succeed in the absence of a finding of medical negligence.   Again this is a case which does not involve any suggestion of any breach on the part of the State in relation to its substantive obligation to protect life.

The volume of Strasbourg authority on Article 2

The statistics produced by the European Court of Human Rights indicate that in the calendar year January 2008 to December 2008 the Court produced a total of 1,545 judgments on the merits of applications brought before it (the number of non-admissibility decisions was substantially higher than this), finding a violation of the Convention in 1,423 of these cases.  Of these judgment in 2008, 52 found a violation of the substantive provisions of Article 2 ECHR as regards the duty to protect life.    A further 63 of the judgments in 2008 alone dealt with a violation of the procedural obligations under Article 2 ECHR properly to investigate deaths.    The statistics for the year January 2009 to December 2009 were as follows: the Court produced a total of 1,627 judgments on the merits of applications brought before it (the number of non-admissibility decisions was substantially higher than this), finding a violation of the Convention in 1,504 of these cases.  Of these judgment  in 2009, 71 found a violation of the substantive provisions of Article 2 ECHR as regards the duty to protect life.    A further 81 of the judgments in 2009 alone dealt with a violation of the procedural obligations under Article 2 ECHR properly to investigate deaths.   In summary in only two years (2008 and 2009) there have been 123 new judgments from the Strasbourg Court considering the substantive duties under Article 2 ECHR.    In that same two year period there have been a further 144 judgments from the European Court of Human Rights concerned with a breach of the procedural duties of investigation.

Conclusion

Returning to the issue of “living instrument” it is inevitable that where UK Courts require to keep pace with Strasbourg, and Strasbourg is itself moving and developing the relevant law that the UK Courts face a difficult and complex task.  That task requires to be informed not only by traditional reliance on case law that ‘has stood the test of time’ without being over-ruled, but more importantly requires that consideration of Strasbourg jurisprudence is undertaken with the fact specific nature of the case law in mind as well as the developing nature of the convention at the forefront of that court’s mind.

The more surprising thing about the passing remarks in R (Smith) to the effect that the procedural duty to investigate deaths under Article 2 ECHR might be dependent on or parasitic to the substantive Article 2 obligations is its apparent inconsistency with the earlier unanimous decision of the then UK top court, the House of Lords in R (L).    But if, as Lady Hale has it (at paragraph 135), all of these judgments in R (Smith) are no more than a collection of obiter observations which were produced by the Justices as a matter of politeness given the arguments presented to them and the time spent in listening to them, then none of this really matters.