THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 46477/99 by Paul and Audrey EDWARDS against the United Kingdom

The European Court of Human Rights, sitting on 7 June 2001 as a Chamber composed of

Mr J.-P. Costa , President , Mr W. Fuhrmann , Mr L. Loucaides , Sir Nicolas Bratza , Mrs H.S. Greve , Mr K. Traja , Mr M. Ugrekhelidze , judges , and Mrs S. Doll é , Section Registrar ,

Having regard to the above application introduced on 14 December 1998 and registered on 4 March 1999,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicants are Paul Edwards, born in 1936, and Audrey Edwards, born in 1934, both British citizens resident in Coggeshall , Essex. They are the parents of Christopher Edwards who died while being held on remand in Chelmsford Prison on 29 November 1994. They are represented by Ms Nancy Collins of Liberty, London.

The respondent Government are represented by Ms Joanne Foakes of the Foreign and Commonwealth Office.

A. THE CURCUMSTANCES OF THE CASE

The facts of the case, as submitted by the parties, may be summarised as follows.

Prior to his death, Christopher Edwards had shown signs of developing a serious mental illness. In 1991, a psychiatric assessment expressed the tentative diagnosis of schizophrenia. In July 1994, he stopped living at home with the applicants. At this time, he stopped taking his medication.

On 27 November 1994, Christopher Edwards, then thirty years old, was arrested in Colchester by the police and taken to Colchester police station. He had been approaching young women in the street and making inappropriate suggestions. His behaviour before arrest, and at the police station, led police officers to suspect that he might be mentally ill. He was assessed at the police station by an approved social worker, who discussed the matter on the telephone with a consultant psychiatrist. They agreed that, while there was some evidence of possible developing schizophrenia, he did not need urgent medical attention and that he was fit to be detained at the police station. He was held in a cell on his own.

On 28 November 1994, Christopher Edwards appeared at Colchester Magistrates’ Court and was remanded in custody for three days. In the late afternoon, he was taken to Chelmsford Prison, where he was screened by a member of the prison health care staff who saw no reason to admit him to the Health Care Centre. He was admitted to the main prison and placed in cell D1-6.

He was detained in a cell on his own during this period.

Meanwhile, Richard Linford was arrested in Maldon on 26 November 1994 for assaulting his friend and her neighbour. At Maldon police station, he was seen by a police surgeon as it was suspected that he was mentally ill. The police surgeon certified that Richard Linford was not fit to be detained. Richard Linford was assessed by a psychiatric registrar who consulted on the telephone with a consultant psychiatrist, who decided that he did not need to be admitted to hospital and that he was fit to be detained. Richard Linford was transferred to Chelmsford police station, where the police surgeon also found him fit to be detained. While his conduct before and after arrest was bizarre, it was attributed by the doctors to the effects of alcohol abuse, amphetamine withdrawal and to a deliberate attempt to manipulate the criminal justice system. The registrar, who had previously treated Richard Linford , knew that he had been diagnosed at various times as suffering from schizophrenia or as having a personality disorder, but also knew him as someone who became ill when abusing alcohol and drugs. Over the weekend, Richard Linford showed further bizarre behaviour and was violent to police officers. He was not re-assessed by a doctor. After being remanded in custody by Chelmsford Magistrates’ Court on 28 November 1994, he arrived at Chelmsford Prison shortly after Christopher Edwards, where he was screened by the same member of the prison health care service who had seen Christopher Edwards and who saw no reason to admit him to the Health Care Centre.

Initially, Richard Linford was placed in cell D1-11 on his own. He was then moved into cell D1-6 with Christopher Edwards.

Shortly before 1 a.m. on 29 November 1994, Richard Linford attacked Christopher Edwards in the cell and stamped and kicked him to death. The emergency buzzer was activated from inside the cell but was inoperative as it had been interfered with. The prison officer on duty the evening before was aware that the buzzer was inoperative.

At the time of the attack, Richard Linford was acutely mentally ill. He was transferred later on 29 November 1994 to Rampton Special Hospital.

On 21 April 1995, Richard Linford pleaded guilty at Chelmsford Crown Court to the manslaughter of Christopher Edwards by reason of diminished responsibility. The trial was therefore brief. The judge imposed a hospital order under section 37 of the Mental Health Act 1983, together with a restriction order under section 41. He is currently still at Rampton Special Hospital, diagnosed as suffering from paranoid schizophrenia.

A Coroner’s Inquest had been opened but adjourned pending the criminal proceedings against Richard Linford . After Richard Linford’s conviction, the Coroner closed the Inquest, as there was no obligation to continue in those circumstances.

On 16 October 1995, the applicants were advised by the Assistant Chief Constable that it was considered that there was insufficient evidence to establish the offence of manslaughter by gross negligence on the part of anyone involved in the case but that the matter would be probably reviewed at the conclusion of the inquiry which had been commenced by the statutory agencies concerned in the case.

In 1995, a private, non-statutory inquiry was commissioned by three State agencies with statutory responsibilities towards Christopher Edwards – the Prison Service, Essex County Council and North Essex Health Authority. Its terms of reference were:

“To investigate the death of Mr Edwards in Chelmsford Prison, including factors in his and Mr Linford’s detention which are relevant to that, and in particular: the extent to which their reception, detention, management and care corresponded to statutory obligations, Prison Service Standing Orders and Health Care Standards and local operational policies.

1. To examine the adequacy, both in fact and of relevant procedures, of collaboration and communication between the agencies (HM Prison Service, the Essex Police, the courts, MidEssex Community and Mental Health NHS Trust and its predecessor, and Essex County Council Social Services Department) involved in the care, custody and control of Mr Edwards and Mr Linford , or in the provision of services to them.

2. To examine the circumstances surrounding the arrest, detention and custody of Mr Linford and Mr Edwards by Essex Police, including whether all relevant information was effectively and efficiently passed between Essex Police, the prison service, the courts, and any other relevant agencies ...;

3. To examine all the relevant circumstances surrounding the treatment and care of Mr Edwards and Mr Linford , by the health service and social services, and in particular: the extent to which Mr Edwards and Mr Linford’s care corresponded to relevant statutory obligations, relevant guidance from the Department of Health ... and local operational policies.

4. To prepare a report and make recommendations to North Essex Health Authority, Essex County Council Social Services Department and HM Prison Service, and other such agencies as are identified as appropriate ...”

In February 1996, the applicants were advised by their solicitors that they had a claim for funeral costs and a potential claim for compensation and any pain and suffering between Christopher Edwards’ injury and death, but that taking into account legal costs it would not be economic to bring such a claim.

In April 1996, the Criminal Injuries Compensation Board awarded the applicants 4,550 pounds sterling (GBP) for funeral expenses but decided that there should be no dependency or bereavement award.

The inquiry opened in May 1996. It received evidence on 56 days over a period of 10 months. It had no powers of compulsion of witnesses or production of documents. Two prison officers refused to give evidence. The Inquiry Report later noted that one of these had potentially significant evidence and his refusal was said to be “all the more regrettable since he had passed by Christopher Edwards’ cell shortly before he met his death”.

In November 1997, the applicants issued a summons in the County Court for negligence against the Chief Constable of Essex and Essex County Council. They did not however serve it due to legal advice from their solicitors.

Draft extracts of the Inquiry’s preliminary findings were circulated to those subjected to criticism to allow them the opportunity to comment. A number of witnesses were recalled to give evidence on 15 June 1998.

The Inquiry Report was published on 15 June 1998. It concluded that ideally Christopher Edwards and Richard Linford should not have been in prison and in practice they should not have been sharing the cell. It found “a systemic collapse of the protective mechanisms that ought to have operated to protect this vulnerable prisoner”. It identified a series of shortcomings, including poor record-keeping, inadequate communication and limited inter-agency co-operation, and a number of missed opportunities to prevent the death of Christopher Edwards.

The findings included the following:

– ideally, if suitable beds had been available, Christopher Edwards should have been admitted to hospital for assessment under section 2 of the Mental Health Act 1983;

– it was a serious omission, and breach of Code C of the Code of Practice under the Police and Criminal Evidence Act 1984, that no doctor had been asked by the custody officer to see Christopher Edwards;

– it was serious failure by Essex Police that Form CID2 was not completed, describing Christopher Edwards as a prisoner reasonably suspected of being an exceptional risk on the grounds of mental disturbance;

– at the Magistrates’ Court hearing on 28 November 1994 no consideration was given to section 35 of the 1983 Act which provided for a remand to hospital for assessment;

– no attempt was made by the court to notify the prison authorities, in particular the Senior Medical Officer, that Christopher Edwards was suspected of suffering from a mental illness;

– information provided to the prison by the applicants about Christopher Edwards’ psychiatric background was not recorded or passed on to the person carrying out the screening;

– when Christopher Edwards arrived at Chelmsford Prison there was no medical officer on duty, in breach of Prison Service Health Care Standards;

– the prison health care worker, Mr N, who assessed Christopher Edwards was inadequately trained in the recognition of mental disorder and had been given insufficient guidance. The screening was rushed and superficial and did not take place in adequate conditions of privacy;

– Mr N had not been provided with any information about the concerns as to Christopher Edwards’ mental condition by the police or court;

– the call system in the cell was defective; it had been pressed up to 17 minutes before the alarm was raised by Richard Linford banging on the door and if it had functioned a prompt response might have saved Christopher Edwards’ life;

– Richard Linford had a history of violent outbursts and assaults, including a previous assault on a cell mate in prison. He had been admitted to mental hospital in 1988, and subsequently had been diagnosed as schizophrenic. Despite psychotic episodes and further assessments, he was not admitted to hospital after September 1994 as he was not considered to be suffering from acute mental illness. A case conference was held on 24 October 1994, where one of Richard Linford’s general practitioners and a police officer expressed the view that he was capable of serious violence or murder. However no formal risk assessment was carried out. The consultant psychiatrist did not accept the risk to public safety was serious and it was decided to make one last attempt to induce Richard Linford to take depot medication before detaining him under section 3 of the 1983 Act. By 7 November 1994, it was reported to the consultant that Richard Linford was refusing depot medication;

– after Richard Linford’s arrest on 26 November, no attempt was made to locate his medical notes before being assessed. The psychiatric registrar was unaware of the case conference or the outline plan to detain him;

– no form CID2 was filled in by the police for Richard Linford despite his attacks on two officers, as the officer concerned did not know of the form’s existence;

– the police and prosecution were aware that Richard Linford was described as dangerous but no formal warning was given to the prison authorities;

– at Chelmsford Prison, Richard Linford was screened by Mr N, who knew nothing about him except that he had been “difficult” in the police station.

Following the publication of the report, the applicants sought advice as to whether there were any civil remedies available to them in the light of the findings of the inquiry. At a conference on 2 October 1998, they were advised by counsel that there were still no available civil remedies. The inquiry had made no relevant findings in relation to whether any time elapsed between their son being injured and his death, which would have determined whether they had any action in respect of pain and suffering experienced by their son before he died.

By letter of 25 November 1998, the Crown Prosecution Service maintained their previous decision that there was insufficient evidence to proceed with criminal charges. The applicant’s counsel advised on 10 December 1998 that notwithstanding the numerous shortcomings, there was insufficient material to found a criminal charge of gross negligence against any individual or agency.

By letter dated 15 December 2000, the Police Complaints Authority provided the applicants with a report into their complaints about police conduct in dealing with Christopher Edwards and in the subsequent investigation into the death. The report upheld ten of the complaints and made a number of recommendations to Essex Police in relation to practice and procedure.

B. RELEVANT DOMESTIC LAW AND PRACTICE

Pursuant to the common law, no one can recover damages in tort for the death of another.

The Fatal Accidents Act 1976 confers a right of action for a wrongful act causing death. Section 1(1) provides:

“If death is caused by any wrongful act, neglect or default which is such as would (if death had not ensued) have entitled the person injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured.”

The statutory right of action is however for the deceased’s dependants (section 1(2)) which allows the recovery of their pecuniary loss. If there is not dependency, there is no pecuniary loss to recover as damages. Bereavement damages (fixed at £7,500) are only available to the parents of a child under the age of 18 (section 1A(2)). Funeral expenses are recoverable (section 3(5)).

The Law Reform (Miscellaneous) Provisions Act 1934 provides for the survival of causes of action for the benefit of the deceased’s personal estate. Section 1(1) provides as relevant:

“Subject to the provisions of this section, on the death of any person after the commencement of this Act all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate.”

This enables recovery on behalf of the estate of damages for losses suffered by the deceased before he died, including any non-pecuniary loss such as damages for pain and suffering experienced between the infliction of injury and death. Where death is instantaneous or it cannot be proved that the deceased experienced pain and suffering before death, damages are not recoverable under the 1934 Act and the only amount recoverable would be funeral expenses.

COMPLAINTS

Article 2 of the Convention

The applicants complain that the United Kingdom failed in its positive obligation to take appropriate steps to protect life. The relevant authorities failed to do all that could reasonably be expected of them to avoid a real and immediate risk to the life of Christopher Edwards, a risk which they were, or ought to have been aware of.

The applicants also complain of a breach of the procedural obligation under this provision, submitting that the State failed to provide an effective procedure for establishing the facts surrounding the death of a person in its care, through some form of public and independent official investigation to which the applicants had full access.

Article 6 of the Convention

The applicants complain that they have been deprived of effective access to court to bring civil proceedings in connection with the deprivation of their son’s life.

Article 8 of the Convention

The applicants complain that the lack of independent investigative mechanism and the lack of access to court as the parents of a deceased son discloses a failure to respect family life.

Article 13 of the Convention

The applicants claim that they do not have an effective remedy enabling them to have an independent adjudication of their claim that the authorities had not done all that was required of them under Article 2 to protect the life of their son Christopher Edwards or to obtain redress in respect of his death.  They submit that they are unable to bring proceedings under the Fatal Accidents Act 1976 as they cannot claim to be dependants of their adult son, nor under the Law Reform (Miscellaneous Provisions) Act 1934 as it cannot be established whether Christopher Edwards experienced pain or suffering before his death.

THE LAW

1. The applicants complain of the death of their son Christopher Edwards in custody and the subsequent procedures investigating the circumstances of his death. They invoke Articles 2, 6, 8 and 13 of the Convention.

Article 2 of the Convention provides in its first sentence:

“1. Everyone’s right to life shall be protected by law. ...”

Article 6 § 1 provides as relevant:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law....”

Article 8 provides:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Article 13 provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

2. The Government submit that the application has been introduced outside the six month period imposed by Article 35 § 1 of the Convention. They point out that Christopher Edwards died on 29 November 1994, the applicants were advised in February 1996 that civil proceedings would not be economic and that they chose, in November 1997, not to pursue proceedings against the Chief Constable and Essex County Council. If they were of the view, on legal advice, that domestic proceedings would not succeed, they should have begun their application at that time, if not earlier. It was neither reasonable or necessary to await the outcome of the non-statutory Inquiry into their son’s death as, on their submissions, this was not adequate to provide an effective domestic remedy. It had been open to them to bring their claims before a court to resolve any outstanding factual issues, which forum was more suited to that kind of question. As their application was introduced on 14 December 1998, more than four years after the events in issue, it had been introduced well out of time.

The applicants submit that the fact that a long period elapsed between the death and the introduction of their application resulted from the extreme delay in the publication of the Inquiry Report on 15 June 1998, a matter outwith their control and under the responsibility of the public authorities involved. They argue that it was reasonable and necessary for them to await the outcome of the Inquiry, to decide, in the light of its findings, whether they had any remedies available to them domestically. Their position concerning remedies, in particular whether any significant damages could be claimed, was not settled until the outcome of the Inquiry as it was going to make factual findings that could affect the possibility of either criminal or civil proceedings. However, it only became apparent after the issue of the Report that the inquiry was not adequate to provide an effective remedy.

The Court recalls that the object of the six month time limit under Article 358 is to promote legal certainty, by ensuring that cases raising issues under the Convention are dealt with in a reasonable time and that past decisions are not continually open to challenge. The rule also affords the prospective applicant time to consider whether to lodge an application and, if so, to decide on the specific complaints and arguments to be raised (see, for example, Worm v. Austria judgment of 29 August 1997, Reports 1997–V, at p. 1547, §§ 32-33).

Normally, the six-month period runs from the final decision in the process of exhaustion of domestic remedies. Where it is clear from the outset however that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of. Article 35 § 1 cannot be interpreted however in a manner which would require an applicant to seize the Court of his complaint before his position in connection with the matter has been finally settled at the domestic level. Where, therefore, an applicant avails himself of an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective, the Court considers that it may be appropriate for the purposes of Article 35 § 1 to take the start of the six month period from the date when the applicant first became or ought to have become aware of those circumstances (see no. 27229/95, Keenan v. the United Kingdom , decision on admissibility of 22 May 1998).

In the present case, the matters under complaint relate to the circumstances of Christopher Edwards’s death which occurred on 29 November 1994. It was apparent that at least in theory an action lay under the Law Reform (Miscellaneous Provisions) Act 1934 for funeral expenses and damages for pain and suffering experienced by their son before his death. While it is true that they were advised as early as 1996 that the amount of damages available did not render proceedings economic, this assessment was based on the lack of evidence as to the length of time between injury and death. As Christopher Edwards died in prison, the facts relative to this element were only likely to be elucidated by evidence from prison officers or other prisoners. In the Court’s view, it was reasonable for the applicants to await the outcome of the non-statutory Inquiry set up to investigate the circumstances of the death. This Inquiry was to hear numerous witnesses and issue a report on its findings. If the applicants had in fact chosen to introduce an application before the Convention organs prior to termination of these proceedings, there would have been a strong argument that their complaints concerning the substantive and procedural aspects of Article 2 of the Convention were premature. Insofar as there were outstanding factual issues to resolve relevant to a possible civil claim, it cannot be regarded as unreasonable that the applicants chose to await the Inquiry Report rather than launch a costly and complex action in the courts, the prospects of success of which were very much in issue.

The Court considers that the findings reached by the Inquiry could have potentially affected the existence of remedies whether by providing the basis for a criminal prosecution or disclosing facts supporting an action for damages in the civil courts. In those circumstances, it may be considered that the non-availability of any effective remedies finally became apparent on publication of the Inquiry Report on 15 June 1998 and that this date must be regarded as the final decision for the purposes of Article 35 § 1 of the Convention. The application, introduced on 14 December 1998, was therefore introduced within the requisite six months and cannot be rejected pursuant to Article 35 § 4 of the Convention.

3. Concerning the substance of the complaints raised by the applicants, the Government submit that there was no failure in any positive obligation imposed by Article 2 to protect the right to life of Christopher Edwards. The information available to the prison authorities in the period leading up to his death, when viewed objectively and without the benefit of hindsight, demonstrates that there was no real or immediate risk about which the prison authorities knew or ought to have known. Regard had to be paid to the medical evidence available and the consideration that the authorities had to act in a way which respected the other rights and freedoms of individuals. In this case, an experienced social worker and a consultant psychiatrist found that Christopher Edwards was fit to be detained in a police station and did not require urgent medical attention. When he was admitted to prison and examined for admission to the health centre, there was no evidence of bizarre behaviour. It was normal policy in the prison for prisoners to share a cell and there was no evidence that the prison authorities knew that the cell call system for his cell was defective. Further, Richard Linford was found on arrest to disclose no signs of psychosis and was afterwards noted to be acting rationally and without aggression. He was also not found to be acting in such a way as to justify admission to the prison health centre. Thus when the two prisoners were last seen together, there was no suspicion that Richard Linford would act violently towards his cell mate.

The Government submit that the Inquiry’s conclusion was critical of the “systemic” collapse of a number of mechanisms which, taken together, contributed to the death of Christopher Edwards. That however did not lead to the conclusion that the authorities had failed to comply with the positive obligation. The Government regretted this state of affairs and in particular the operational failure of the cell call system, which had proved to be easily disabled, but argued that this was insufficient to lead to the conclusion that the authorities failed to do what they reasonably could given their state of knowledge at the time.

As regards the procedural obligation under Article 2, the Government pointed out that its requirements would inevitably vary with the circumstances and did not invariably require a particular form of investigation or that the family of the victim should enjoy rights to legal representation, for example. The focus of Article 2 is on the effectiveness of the investigation and not the right to a fair and public hearing for particular individuals. They submit that the non-statutory Inquiry in this case was an effective investigation: it was chaired by senior counsel; its members were senior and experienced professionals; its terms of reference were broad and designed to enable the fullest possible investigation; it was the longest and most expensive enquiry of its kind (lasting three years and costing about GBP 1 million) and it was serviced by an independent firm of solicitors. The fact that the inquiry sat in private, as in many inquisitorial inquiries, did not detract from its effectiveness. Nor was its inability to compel witnesses an issue since this did not prevent the inquiry from being able to conduct a thorough investigation and reach findings many of which were critical of the authorities.

Finally, in respect of the applicants’ complaints under Article 13 of the Convention, the Government submit that the proper approach is for the Court to examine the full range of remedies which would have been available to the applicants’ son but for his death and the remedies available to the applicants. The applicants’ son could have brought a claim for negligence against the prison or other authorities and, after his death, such a claim could have been brought on behalf of his estate. The applicants had a remedy available for any loss of dependency. They argue that the fact that a person may not bring a case because of legal advice that it is not economic does not mean that an effective remedy is not available or that the Contracting State has failed to comply with obligation under Article 13. Nor, in their view, is there any right to a particular form of remedy or any particular amount of compensation. Article 13 leaves a certain discretion to Contracting States as to how they comply with its requirements. Furthermore, they point out that other remedies were possible: criminal proceedings could have been brought; the inquest procedure was available and there was a thorough and effective Inquiry. In addition the Health and Safety Executive are conducting an investigation into the incident, focusing on the management of the two prisoners in prison, which could in principle lead to the criminal prosecution of individuals. From October 2000, the Human Rights Act 1998 enables courts to consider complaints under Article 2 of the Convention and to grant appropriate relief.

The applicants submit, under Article 2 of the Convention, that there was a breach in the positive obligation imposed on the authorities to protect the life of their son. The test was whether the authorities knew or ought to have known at the time of the existence of a real and immediate risk to his life from the criminal acts of a third party and whether the authorities failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. It was incorrect therefore to focus on what the authorities knew, as proposed by the Government – a subjective approach - rather than the objective approach of considering what the authorities ought to have known. It is clear that the prison authorities ought to have known that there was a real and immediate danger to Christopher Edwards’ life when they placed Richard Linford in his cell. They were aware or ought to have been aware of Richard Linford’s dangerous condition and of Christopher Edwards’s vulnerability. The applicants refer to the Inquiry Report’s findings of various failures of one public authority to pass on to another information about the risks Richard Linford presented. In particular, although the police, the Crown Prosecution Service and the Magistrates were all aware that he was dangerous and prone to violence, no formal warning was passed on to the prison. In addition, the positive obligation imposed by Article 2 rests on all public authorities, not only the prison authorities. The test should not be construed narrowly to focus on the particular agency or officer dealing with the victim at the time of the incident, but should take into account systemic failure involving a number of different authorities.

The applicants also consider that there was a failure to comply with the procedural obligation under Article 2 to carry out an effective investigation into the circumstances of their son’s death. While there is no particular form of inquiry imposed, they argue that a more rigorous scrutiny was required in this case due to the fact that the circumstances in which Christopher Edwards died was unclear, there was no criminal trial as Richard Linford pleaded guilty to manslaughter on grounds of diminished responsibility and there was no Coroner’s Inquest. They do not consider however that the non-statutory Inquiry furnished a thorough and effective investigation. They refer to the fact that the Inquiry was privately commissioned by the agencies which were themselves the subject of investigation and which themselves fixed the terms of reference and appointed the inquiry chairman, panel and counsel. The proceedings were held in private and the applicants were only able to attend to give evidence. Nor were the applicants legally represented or able to have witnesses cross-examined. Furthermore, the Inquiry had no power to compel witnesses. A number of witnesses failed to appear including a crucial witness, a prison officer who had passed by the cell shortly before Christopher Edwards died. Therefore the Inquiry was deprived of “potentially significant evidence”.

As regarded Article 13, the applicants argued that it was not enough for the Government to refer to a range of remedies which might in principle be available but which in the particular circumstances of their case were not in fact available. An action for negligence was not available in the absence of sufficient evidence as to the responsibility of any particular individual or authority or any findings as to the time between injury and death which determined whether the applicants had any action for the pain and suffering experienced by their son before his death. Nor could they make any dependency claim under the Fatal Accidents Act 1976. They dispute that a remedy can still be regarded as effective where it would not be economic to bring the claim. Article 13 should be interpreted so as to make its guarantee practical and effective and genuine practical obstacles to bringing a claim must be regarded as undermining the effectiveness of the procedure. There was also insufficient evidence to support a criminal charge of gross negligence against any individual or agency, so no further criminal remedies were available. The Human Rights Act 1998 was of no assistance either, since it only covered events which took place after the Act came into force on 2 October 2000. The Health and Safety Executive investigation, which was still ongoing, was a mere administrative procedure which could not be an effective remedy for the purpose of Article 13.

4. The Court has examined the applicants’ complaints and the submissions of the parties and finds that serious questions of fact and law arise, which are of such complexity that their determination should depend on an examination of the merits. The application cannot, therefore, be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

S. Dollé J.-P. Costa Registrar President