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European Convention on Human Rights
In certain circumstances the state has a duty to carry out an official inquiry to investigate an individual’s death. This duty arises from the obligations of the state under the Convention. One of the fundamental rights protected by the Convention is the right to life under Article 2.
The European Court of Human Rights (ECHR) has ruled that Article 2 of the Convention imposes upon the state a duty to carry out an effective investigation into a death where there is reason to believe that the deceased died in contravention of Article 2.
The ECHR only came into force in England and Wales on 2 October 2000 and the duty to investigate a death under Article 2 does not arise in respect of deaths occurring before this date: Re McKerr.
Individuals killed as a result of lethal force by state agents
In McCann v United Kingdom the ECHR held that the state has a duty to carry out an official investigation into a death of a person killed by use of force by state agents. If the state fails to carry out an effective investigation into a death in these circumstances it will be in breach of the Convention whether or not the state is found to be liable for the person’s death. Salman v Turkey concerned the death in custody of an individual, which was seemingly caused by the ill treatment of police officers. The ECHR held that the state was in breach of Article 2 both in relation to its responsibility for the death and for failing to carry out an effective investigation into the circumstances of the death.
The English and Welsh courts have confirmed that the duty to investigate an individual’s death is not confined solely to allegations of unlawful killing by state agents.
Individuals who die whilst under the care and protection of the state
The requirement for an effective investigation also arises where a state authority has failed to protect the individual’s life where they had assumed liability for his or her welfare. This includes situations in which people take their own lives (Keenan v United Kingdom) or are killed by non-state actors whilst in custody. In Edwards v United Kingdom the applicants were parents of the deceased, Christopher Edwards, who was killed by his cellmate whilst detained in custody. Both the deceased and his cellmate had a history of mental illness, and a private non-statutory inquiry commissioned by three state agencies with statutory responsibilities towards Mr. Edwards concluded that both inmates should not have been in prison or sharing a cell. Relying upon the fact that Mr. Edwards had been wholly under the protection of and dependent upon the state authorities at the time of his death, the ECHR held that the state had a duty to conduct an effective official investigation into his death.
The ECHR has also held that the duty to investigate arises where it is complained that the state knew or ought to have known that the deceased’s life was at real and immediate risk and failed to take adequate steps to protect him or her: Osman v United Kingdom. This includes situations where the authorities know that an individual presents a level of risk to him or herself.
Individuals dying from life-threatening injuries in suspicious circumstances
In Menson v United Kingdom the ECHR extended the duty yet further to circumstances where there is no direct state responsibility for the individual, but the death occurred in suspicious circumstances suggestive of unlawful killing. Mr. Menson died of severe burns after having informed the police that four white men had attacked him and set fire to him. The police failed to take a statement from him. The applicants (Mr. Menson’s family) were unsuccessful in proceedings before the ECHR. However, the court held that the basic procedural requirements apply ‘with equal force to the conduct of an investigation into a life-threatening attack on an individual.’ The court considered that the obligation to safeguard the lives of those within its jurisdiction imposed a duty upon the state to secure the right to life by putting in place an effective official investigation where there is reason to suspect that a person has sustained life-threatening injuries in suspicious circumstances. It was also observed that where an attack upon an individual was racially motivated it was particularly important that the investigation should be pursued with vigor and impartiality.
The nature of the investigation
The ECHR has held that an official state investigation into a death should be independent, effective, and reasonably prompt, involve a sufficient element of public scrutiny, and involve the next of kin to the extent necessary.
The involvement of the family in the inquiry process
An important feature of an investigation is the ability of the deceased’s family to participate in the proceedings. If the relatives of the deceased are not able to participate effectively in any inquiry into the death, the investigation may be rendered insufficient for the purposes of Article 2. For example, in Edwards v United Kingdom, the ECHR held that the private inquiry had been insufficient for the state to discharge its duty where there was no power to compel witnesses and the family were unable to attend for all the proceedings or to ask questions.
In order to ensure that the family is able to participate effectively, it will sometimes be necessary for relatives to have legal representation. The state should have a system of funding this representation, and in exceptional circumstances, public funding should be made available regardless of the applicant’s means.
Public scrutiny - the requirement for a formal finding of any failures
To be effective, it is important that any inquiry should have the ability formally and publicly to record any findings of failure on the part of the responsible state agencies that caused or contributed to the death.
An effective remedy
There is also authority to suggest that where the state has violated Article 2, it should also provide an effective remedy. In certain situations however, in the absence of a claim for dependency or bereavement damages (see below: Remedies), there will be no legal entitlement for relatives of an individual who has died to obtain compensation in respect of his or her death. In these circumstances it may be possible to bring a claim under the Human Rights Act 1998 (HRA) for compensation in respect of the death, even though there is otherwise no entitlement under English and Welsh law to damages.
Relatives have the right to expect that an investigation into an individual’s death has the features identified. This has implications for police investigations, inquests and other inquiries that may be the means by which the state investigates a death. Thus, in cases of suspected homicide, relatives have the right to expect a prompt, effective police investigation. Where there are concerns that state authorities have failed in their duty towards the deceased, any subsequent inquiry should have the minimum features identified, including the involvement of the family to the necessary extent. Otherwise there will be a risk that the inquiry falls short of the requirements of a sufficient investigation.
The European Court of Human Rights (ECHR) has ruled that Article 2 of the Convention imposes upon the state a duty to carry out an effective investigation into a death where there is reason to believe that the deceased died in contravention of Article 2.
The ECHR only came into force in England and Wales on 2 October 2000 and the duty to investigate a death under Article 2 does not arise in respect of deaths occurring before this date: Re McKerr.
Individuals killed as a result of lethal force by state agents
In McCann v United Kingdom the ECHR held that the state has a duty to carry out an official investigation into a death of a person killed by use of force by state agents. If the state fails to carry out an effective investigation into a death in these circumstances it will be in breach of the Convention whether or not the state is found to be liable for the person’s death. Salman v Turkey concerned the death in custody of an individual, which was seemingly caused by the ill treatment of police officers. The ECHR held that the state was in breach of Article 2 both in relation to its responsibility for the death and for failing to carry out an effective investigation into the circumstances of the death.
The English and Welsh courts have confirmed that the duty to investigate an individual’s death is not confined solely to allegations of unlawful killing by state agents.
Individuals who die whilst under the care and protection of the state
The requirement for an effective investigation also arises where a state authority has failed to protect the individual’s life where they had assumed liability for his or her welfare. This includes situations in which people take their own lives (Keenan v United Kingdom) or are killed by non-state actors whilst in custody. In Edwards v United Kingdom the applicants were parents of the deceased, Christopher Edwards, who was killed by his cellmate whilst detained in custody. Both the deceased and his cellmate had a history of mental illness, and a private non-statutory inquiry commissioned by three state agencies with statutory responsibilities towards Mr. Edwards concluded that both inmates should not have been in prison or sharing a cell. Relying upon the fact that Mr. Edwards had been wholly under the protection of and dependent upon the state authorities at the time of his death, the ECHR held that the state had a duty to conduct an effective official investigation into his death.
The ECHR has also held that the duty to investigate arises where it is complained that the state knew or ought to have known that the deceased’s life was at real and immediate risk and failed to take adequate steps to protect him or her: Osman v United Kingdom. This includes situations where the authorities know that an individual presents a level of risk to him or herself.
Individuals dying from life-threatening injuries in suspicious circumstances
In Menson v United Kingdom the ECHR extended the duty yet further to circumstances where there is no direct state responsibility for the individual, but the death occurred in suspicious circumstances suggestive of unlawful killing. Mr. Menson died of severe burns after having informed the police that four white men had attacked him and set fire to him. The police failed to take a statement from him. The applicants (Mr. Menson’s family) were unsuccessful in proceedings before the ECHR. However, the court held that the basic procedural requirements apply ‘with equal force to the conduct of an investigation into a life-threatening attack on an individual.’ The court considered that the obligation to safeguard the lives of those within its jurisdiction imposed a duty upon the state to secure the right to life by putting in place an effective official investigation where there is reason to suspect that a person has sustained life-threatening injuries in suspicious circumstances. It was also observed that where an attack upon an individual was racially motivated it was particularly important that the investigation should be pursued with vigor and impartiality.
The nature of the investigation
The ECHR has held that an official state investigation into a death should be independent, effective, and reasonably prompt, involve a sufficient element of public scrutiny, and involve the next of kin to the extent necessary.
The involvement of the family in the inquiry process
An important feature of an investigation is the ability of the deceased’s family to participate in the proceedings. If the relatives of the deceased are not able to participate effectively in any inquiry into the death, the investigation may be rendered insufficient for the purposes of Article 2. For example, in Edwards v United Kingdom, the ECHR held that the private inquiry had been insufficient for the state to discharge its duty where there was no power to compel witnesses and the family were unable to attend for all the proceedings or to ask questions.
In order to ensure that the family is able to participate effectively, it will sometimes be necessary for relatives to have legal representation. The state should have a system of funding this representation, and in exceptional circumstances, public funding should be made available regardless of the applicant’s means.
Public scrutiny - the requirement for a formal finding of any failures
To be effective, it is important that any inquiry should have the ability formally and publicly to record any findings of failure on the part of the responsible state agencies that caused or contributed to the death.
An effective remedy
There is also authority to suggest that where the state has violated Article 2, it should also provide an effective remedy. In certain situations however, in the absence of a claim for dependency or bereavement damages (see below: Remedies), there will be no legal entitlement for relatives of an individual who has died to obtain compensation in respect of his or her death. In these circumstances it may be possible to bring a claim under the Human Rights Act 1998 (HRA) for compensation in respect of the death, even though there is otherwise no entitlement under English and Welsh law to damages.
Relatives have the right to expect that an investigation into an individual’s death has the features identified. This has implications for police investigations, inquests and other inquiries that may be the means by which the state investigates a death. Thus, in cases of suspected homicide, relatives have the right to expect a prompt, effective police investigation. Where there are concerns that state authorities have failed in their duty towards the deceased, any subsequent inquiry should have the minimum features identified, including the involvement of the family to the necessary extent. Otherwise there will be a risk that the inquiry falls short of the requirements of a sufficient investigation.
