Margaret YOUNGER v the United Kingdom - 57420/00 [2003] ECHR 706 (07 January 2003)

judgment of 9 June 1998, Reports 1998-III, p. 1403, § 36). This extends in appropriate circumstances to a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual (see the above-cited Osman judgment, § 115). Bearing in mind the difficulties in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, the scope of the positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Not every claimed risk to life therefore can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. For a positive obligation to arise in the context of where the risk to a person derives from self-harm, such as a suicide in custody, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual and, if so, that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (see the above-cited Keenan judgment, §§ 89 and 92). In the context of prisoners, the Court has had previous occasion to emphasise that persons in custody are in a vulnerable position and that the authorities are under a duty to protect them. It is incumbent on the State to account for any injuries suffered in custody, which obligation is particularly stringent where that individual dies (see, for example, Salman v. Turkey [GC], no. 21986/93, ECHR 2000-VII, § 99). It may be noted that this need for scrutiny is acknowledged in the domestic law of England and Wales, where inquests are automatically held concerning the deaths of persons in prison and where the domestic courts have imposed a duty of care on prison authorities in respect of those detained in their custody. The Court has recognised that the prison authorities must discharge their duties in a manner compatible with the rights and freedoms of the individual prisoner concerned. There are general measures and precautions which will be available to diminish the opportunities for self-harm, without infringing personal autonomy. Whether any more stringent measures are necessary in respect of a prisoner and whether it is reasonable to apply them will depend on the circumstances of the case (the above-cited Keenan judgment, § 91). (b) Application of the general principles to the present case In the light of the above, the Court has examined whether the authorities knew or ought to have known that Stuart Gipp posed a real and immediate risk of suicide and, if so, whether they did all that reasonably could have been expected of them to prevent that risk. The applicant accepts that Article 2 was not breached in this case on the basis of actual knowledge by the authorities of the risk of Stuart Gipp committing suicide and a consequent failure to do all that could reasonably be expected to avert that known risk. The Court agrees. The first time that the authorities were made expressly aware that Stuart Gipp was a suicide risk was when that fact was communicated by Mr Milsom to SCO Davis at about 3.50 p.m. on 9 February 1999. Thereafter, the authorities did all that could reasonably have been expected of them in initiating a self-harm form immediately and checking Stuart Gipp’s cell within three minutes, by about 3.53 p.m. Tragically, Stuart Gipp was found hanging at about the same time. Thereafter, the PECS report specifically concluded that the staff dealing with the situation worked with speed and skill and did all that they could to revive him. The question therefore arises as to whether the authorities ought to have known that Stuart Gipp was a suicide risk. The Court recalls that Stuart Gipp asked to see a doctor on two occasions on the morning of the day on which he hanged himself. Neither request was ultimately fulfilled and he did not see a doctor while he was in custody. In addition, Stuart Gipp told PCO Stevens that morning that he was a drug user and PCO Stevens stated that he was, for that reason, concerned about Stuart Gipp’s health, but not his safety. While the Court is greatly concerned that the above information was not recorded on Stuart Gipp’s PER, which it clearly should have been, and that no one with overall responsibility for his welfare admits to being aware of each of the above facts, it cannot conclude that, in the circumstances of this case, the two requests to see a doctor and a knowledge that Stuart Gipp was a drug user ought, in themselves, to have been sufficient to put the authorities on notice that Stuart Gipp was a suicide risk. In reaching the above conclusion, the Court has also taken into account the available evidence about Stuart Gipp’s demeanour that morning and the circumstances surrounding his requests to see a doctor and the revelation that he was a drug user. The Court notes that Stuart Gipp did not have any known history of mental health problems or suicidal tendencies. At the time at which he first asked for a doctor at about 8.15 a.m. he stated that it was for a personal reason and that, while he would have waited to see one until he got to prison, he preferred to see a doctor beforehand as he believed that it would be more difficult once he was in prison. Up until that point, Stuart Gipp had acted at all times in a normal fashion, showing no particular signs of physical or mental distress. In those circumstances, both PS Sterne and Dr Gwynn concluded that Stuart Gipp’s request to see a doctor was not urgent and left the matter to be dealt with by Group 4, whose staff were shortly thereafter due to transfer Stuart Gipp to court. At the time of his later request to PCO Banks to see a doctor, there is no evidence to suggest that Stuart Gipp appeared to Group 4 staff to be unwell. Although PCO Stevens reported that Stuart Gipp had initially not responded to his questions at about that time, he also stated that Stuart Gipp had perked up a little after he had continued to talk to PCO Stevens following his admission of being a drug user. During his visit at 11.15 a.m., Mr Milsom reported that Stuart Gipp appeared to him to be rather unwell, but not dramatically so. His demeanour was calm, rational and responsive. In the above circumstances, the Court concludes that there is no evidence of anything about Stuart Gipp’s actions or behaviour that ought to have put the authorities on notice that he was at a real and immediate risk of suicide either at the times at which he requested a doctor or when he revealed that he was a drug user. The applicant submits, however, that, had the authorities acted with reasonable care - in particular by ensuring that Stuart Gipp was seen by a doctor and/or by the community psychiatric nurse, who was on duty at the court that morning - there is a real possibility that they would have been made aware of Stuart Gipp’s vulnerability to the risk of suicide. The Court finds this assertion to be too speculative. While the Court does not regard it as appropriate to apply a “real possibility” test, which it finds puts the threshold far too low for the purposes of determining whether there has been a violation of Article 2, the Court would reach the same conclusion even on the basis of such a test. It cannot conclude on the available evidence that there was even a real possibility that, had Stuart Gipp been seen by a medical professional at a time prior to his bail application at about 2.50 p.m., the authorities would have become aware that he was at a real and immediate risk of suicide, nor that the calling of a doctor would have made any difference to the tragic outcome of the case. The Court notes that, from 2.50 p.m. onwards, a doctor would have been unavailable, even if called, as SCO Davis had been trying to get one to attend another detainee since that time without success at the time at which she spoke to Mr Milsom at 3.50 p.m. While the Court regards it as most unfortunate that Stuart Gipp was not seen by a medical practitioner in the circumstances of the case, it would be pure speculation to conclude that the summoning of a medical professional would have had the outcome for which the applicant contends. Indeed, the Court observes that the available evidence points more strongly towards the suggestion that Stuart Gipp became a real and immediate suicide risk only after he had been remanded to Glen Parva, following his unsuccessful bail application. As set out above, up until that time Stuart Gipp’s demeanour is variously described as normal, compliant, calm, rational and responsive, with no particular signs of mental or physical distress. However, once he was remanded to Glen Parva at about 3.20 p.m., his demeanour was said by PCO Moore to have changed almost instantly. His deflated and non-responsive demeanour was confirmed by PCO Cannon shortly after the bail hearing; and Mr Milsom describes Stuart Gipp’s unhappiness about having been remanded to Glen Parva, talking of difficulties that he had experienced there in the past and that, during that conversation, he stated that he might kill himself. Mr Milsom saw Stuart Gipp on the evening of 8 February 1999, on the morning of 9 February 1999 and between about 3.35 and 3.45 p.m. on 9 February 1999. It was only on that last occasion, which followed the remand to Glen Parva, that Stuart Gipp mentioned that he might harm himself. Stuart Gipp’s brother had not mentioned to any authority prior to the death that a friend of Stuart’s had reported that he had previously said that he would kill himself if he ever had to go back to Glen Parva. While the Court has taken full account of the different description that Stuart Gipp’s brother recounted in relation to his demeanour in court at his bail application that afternoon, this does not detract from the description of his behaviour prior to that hearing, nor from the inference that can be drawn from the evidence that his demeanour changed markedly after he had been remanded to Glen Parva. The Court is critical of the failure of the relevant staff to note this change of demeanour on Stuart Gipp’s PER. However, Stuart Gipp was seen by his solicitor, Mr Milsom, very shortly after the decision to remand him in custody and Mr Milsom communicated the threat that Stuart Gipp had made to kill himself immediately after that consultation. In all the circumstances, the Court cannot conclude that Stuart Gipp ought to have been known to the authorities as a real and immediate risk of suicide prior to Mr Milsom’s communication of that information to SCO Davis at about 3.50 p.m. In the above circumstances, the Court concludes that Stuart Gipp’s act in hanging himself was not reasonably foreseeable. As the evidence does not establish that he was, or ought to have been, known to the authorities as a real and immediate suicide risk, the authorities cannot be found, on the Court’s established case-law, to have been in breach of Article 2 of the Convention on the basis that they failed in their positive obligation to protect his life. However, the applicant further submits that, as an enhanced risk of suicide is a well-known feature of the custodial situation, the safest course is to adopt a minimum standard of care applicable to all prisoners, which, in the present case, would encompass the policy set out in Home Office Circular No. 92/1968 requiring that cell hatches should be closed when the cell is occupied because of the fact that they could otherwise be used for the attachment of ligatures. That minimum standard would not depend upon the custodian having specifically identified a particular prisoner as presenting a specially enhanced risk of suicide, but would apply to all prisoners in acknowledgment of the difficulties in making a precise assessment of suicide risk. While the Court welcomes and encourages authorities to make the greatest efforts to ensure that all prisoners are kept in a safe custodial environment, the Court finds that the failure to follow Home Office Circular No. 92/1968 in the present case cannot, in itself, give rise to a violation of Article 2 of the Convention in the absence of actual or imputed knowledge, on the part of the authorities, that Stuart Gipp was a real and immediate suicide risk. The Court rejects the logical effect of the applicant’s above argument that every prisoner should be treated as a real and immediate suicide risk merely by virtue of being a prisoner. While the Court recognises the vulnerability of those in custody and could accept as a general proposition that the risk of suicide amongst those in custody may be higher than amongst those in the general population, there is no evidence before the Court to suggest that the occurrence of suicide in prison in the United Kingdom is anything other than rare. The Court refers to the statistical information contained in the PECS report, set out under the heading “relevant domestic law and practice” above, which, while relating only to one geographical area, shows the percentage of prisoners handled who attempted self-harm to be very low, ranging from 0.03% to 0.05% between 1996 and 1998. While no separate percentage is available for those who attempted suicide as opposed to other forms of self-inflicted injury, it would clearly be an even lower figure than that which includes all incidents of self-harm. Furthermore, the Court considers that to regard all prisoners as suicide risks would impose not only a disproportionate burden upon the authorities in the unusual situation where they are under a positive obligation to prevent an individual from taking his or her own life, but also a potentially unnecessary and inappropriate restriction on the liberty of the individual prisoner. The Court does not find that Article 2 imposes any such minimum standard upon the State in circumstances where there is no other evidence that an identified individual is a known suicide risk. In relation to the criticisms that the applicant makes of the PER forms, the Court finds that the timings of the various events referred to in this decision accord not only with the entries on the second page of the first PER form, but also with the factual findings of the PECS report. As such, the Court does not have any reason to doubt their accuracy. Excepting the criticisms that it has already made above in relation to the failure to record significant information on Stuart Gipp’s PERs, the Court does not find it necessary to make any further finding in relation to the manner in which the PERs were completed in the present case. Finally, the Court notes that the applicant does not allege that Article 2 was breached by the failure of the State to satisfy the investigative procedural obligation inherent in Article 2, accepting that, on the facts of this case, the inquest into Stuart Gipp’s death satisfied that requirement. The Court does not find any reason to disagree with that conclusion. For the reasons stated above, the Court concludes that the applicant’s complaints under Article 2 must be rejected as manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention. Notwithstanding its above conclusion, the Court considers it appropriate to express its particular disquiet about the fact that the guidance contained in Home Office Circular No. 92/1968 and in Group 4’s own internal memorandum of 10 January 1999, that cell door hatches should be kept closed when the cell is occupied, was not followed in the current case and that the Group 4 staff in the present case were apparently still not aware, at the time of the inquest almost one year after Stuart Gipp’s death, that the purpose of the internal memorandum was that of suicide prevention. C. Article 13 of the Convention The Government submit that, as there has not been an arguable breach of Article 2, there has also not been any violation of Article 13 of the Convention. Alternatively, they argue that the PECS investigation and the inquest, viewed together, provided the applicant with an effective remedy. The applicant submits that, if there has been a violation of Article 2 on the facts of the case, as averred by her, Article 13 of the Convention has also been breached because domestic law failed to provide an effective remedy therefor. As in the above-cited Keenan case, the applicant was not able to pursue any remedy which was capable of determining the liability of the State for the death of her son or which provided compensation in respect thereof. The Court recalls that Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see Boyle and Rice v. the United Kingdom , judgment of 27 April 1988, Series A no. 131, § 52). The Court has found above that the applicant’s complaint under Article 2 is manifestly ill-founded. For similar reasons, the applicant did not have an “arguable claim” and Article 13 is therefore inapplicable to her case. It follows that this part of the application is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4. For these reasons, the Court by a majority Declares the application inadmissible. S. Dollé J.-P. Costa Registrar President BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII