SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 56413/00 by Lisa DOUGLAS-WILLIAMS against the United Kingdom

The European Court of Human Rights (Second Section), sitting on 8 January 2002 as a Chamber composed of

Mr J.-P. Costa , President , Mr A.B. Baka , Sir Nicolas Bratza , Mr Gaukur Jörundsson , Mr K. Jungwiert , Mr V. Butkevych , Mr M. Ugrekhelidze , judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application lodged on 19 January 2000 and registered on 11 April 2000,

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 applicant, Lisa Douglas-Williams, is a United Kingdom national, born in 1972 and living in London. She is the sister of Wayne Douglas, who died in police custody on 5 December 1995. She is represented before the Court by Ms L. Christian, a lawyer practising in London.

A. The circumstances of the case

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

The applicant’s brother, Wayne Douglas, was 25 years old when he died. He was a large man who weighed approximately 90 kg, with no previous history of heart problems.

Shortly before 2.36 a.m. on 5 December 1995, the deceased was allegedly involved in a burglary in Strathleven Road, Brixton. An intruder broke into a house, awoke the young couple who were its occupants and threatened them at knifepoint before leaving with cash point cards, money and a kitchen knife. The couple rang the police at 2.36 a.m.

Police Constables Page and McKay responded. They saw the deceased leaving Strathleven Road and entering Acre Lane. Believing him to be the intruder, they apprehended him after a chase which ended in a children’s play area. The deceased threatened officers with a kitchen knife, which fell from his hand when his wrist was struck twice with a police baton by PC McKay . A second officer also struck him. In all, he was struck on the arms and back. Several police officers gave evidence that the deceased punched PC Page in the face. The time was 2.46 a.m. The deceased was tackled to the ground, arrested and placed in the prone position, i.e. on his front with his hands restrained behind his back, and handcuffed. The deceased was placed in a police van, prior to which he complained that he had difficulty breathing. He was again placed in the prone position while he was transported to the police station.

Some of the officers later testified that the deceased was “muttering” incoherently in the van and wriggling, unable to sit of his own will. There was further evidence that on leaving the van, he was still “shuffling” and “muttering” incoherently. Some officers said that he was carried into the police station. The van arrived at the police station at 2.58 a.m.

The arresting officer PC Page told the custody sergeant PS Sorensen of the circumstances surrounding the arrest, and stated that the deceased had assaulted him. Meanwhile, the deceased was placed face-down in the prone position on the floor of the custody suite. He was removed to a cell at 3.08 a.m. and had to be carried. He was then stripped and searched with his handcuffs removed, and was placed in the prone position for part of the search. The custody record notes, inter alia :

“Subject complains of difficulty in breathing and is turned over on his back for searching.”

PC Floodgate stated in oral evidence during the Inquest:

“He [the deceased] then complained that he was finding it difficult to breathe on his front so the handcuffs were removed first and he was straight away turned onto his back.”

PC Floodgate said that this appeared to relieve his breathing problem. On examination, PC Floodgate was asked if he saw any mucus on the deceased’s face, to which he replied, “No”. He did not mention that the prisoner had been placed in a “cell relocation position”.

The evidence of PC Turner was not the same:

“Present were PCs Mcintosh , Bennett and Cowland . They stripped him down to his underpants and left the cell one at a time, the last officer holding the prisoner’s legs crossed and then springing off him and then closing the door. (Cell relocation technique). I then slammed the cell door. The prisoner rolled over and groaned, and had what appeared to be nasal mucus over his face.”

After the search, the deceased was left on his own in the cell. PS Sorensen instructed PC Bennett to remain outside the cell and to keep a continuous watch on him. PC Bennett gave evidence that following this instruction he remained outside the cell door and kept watch through the wicket in the door.

PS Sorensen sent for the Forensic Medical Examiner to examine the deceased in case he had suffered any internal injury from a baton and also to examine the two police officers who complained of injury from the arrest.

After a short lapse of time, PS Sorensen came to the cell door. PC Bennett stated that he removed his gaze from the wicket to talk to him. When he looked back, the deceased was on his face and in difficulties.

Officers re-entered the cell at 3.31 a.m. when the deceased was said to be having a fit. His heart was beating but he had stopped breathing. Artificial respiration was commenced and an ambulance was called which conveyed the deceased to King’s College Hospital where he arrived at 3.42 a.m. He was pronounced dead at 3.56 a.m.

1. Inquest

The inquest into the death of the deceased took place between 18 November and 6 December 1996. It was presided over by the Coroner Sir Montague Levine , and a jury. Over 40 witnesses gave evidence, including 3 pathologists as to the cause of death. The pathologists were unable to agree as to the cause of death. Dr F. Patel (instructed by the Coroner) considered that the deceased had died of natural causes, due to hypertensive heart disease. However, the applicant claims that the jury rejected this and preferred the evidence of Professor B. Knight and Dr N. Cary. The former considered that the most likely cause of death was “positional asphyxia”, and the latter considered that the cause of death was the deceased’s restraint in the prone position, coupled with the stress occasioned by the whole incident.

At the conclusion of the evidence, the Coroner left four verdicts to the jury, namely accident, open verdict, death by natural causes and unlawful killing. The applicant claims that the Coroner misdirected the jury on the meaning of unlawful killing in English law. The jury’s verdict, by a majority of 8 to 1, was recorded in the following terms:

“Cause of death

1. (a) left ventricular failure

(b) stress and exhaustive and positional asphyxia

Verdict

Accidental death

Details of how Accident Happened

Between 3.10 a.m. and 3.15 a.m. in a police cell in Brixton Police Station following a chase and a series of restraints in the prone position face down as used in current police methods.”

After the verdict was delivered, the Coroner issued a number of recommendations in respect of police methods of restraint in relation to positional asphyxia. This included:

“Repeated periods of restraint in the face down position with the arms handcuffed behind the back can be dangerous and every officer should be given guidelines on essential observations to be made of the restrained person, with special emphasis on the possibility of positional asphyxia; that is taking the pulse rate, listening to the breathing and so forth...”

The Director of the Metropolitan Police Complaints Investigation Bureau assured the Authority that these recommendations would be put in progress as policy matters within the Service.

The applicant received legal aid to judicially review the decision of the Coroner on the basis of alleged misdirections .

On 31 July 1997 Laws J dismissed the application for judicial review. He found that there had been a misdirection in the Coroner’s summing up on the legal definition of “unlawful killing” in that he had had interwoven his explanation on the different aspects of manslaughter concerning unlawful acts and gross negligence in such a way that it may not have been clear to the jury that he was referring to two different types of unlawful killing. Nonetheless, he found that on the evidence before them, and in the light of their finding on the cause of death, even if the jury had been properly directed they would have reached the same verdict. He noted that no complaint had been made about the deceased’s arrest. As regarded alleged neglect by the police officers, he recalled the Coroner’s finding that there was no evidence that the police officers should have recognised that the deceased’s condition was due to anything other than stress and exhaustion. Each officer had been individually asked whether he thought that Wayne should have been taken to hospital and each had replied ‘no’. Further, there had been no evidence that had an attempt been made earlier to take him to hospital that this would have had any effect in avoiding his death. The judge agreed with the Coroner:

“I think it is clear that there was no evidence in the case to the effect that any officer could have foreseen the deceased’s sudden and catastrophic collapse owing to a left ventricular failure (or at all). The Registrar at King’s College Hospital, Dr Ellis gave evidence. The Coroner said this...

‘I asked her this question and this is vital: ‘In retrospect, if you were there at the time would you have done anything different than those officers at that point of time?’ and the answer was ‘no’ and I think it is to their credit that everything they did when they found the heart had stopped and the breathing had stopped was right, and they did it quickly and it was done efficiently. She, as a doctor, almost a specialist herself, had said that had she been there she could not have done anything differently. She agreed with everything that was done.’

In my judgment this was never a case in which the exceptional course of leaving neglect as a free-standing verdict should have been taken. One has to postulate circumstances in which a reasonable jury were not satisfied that unlawful killing (on any basis but in particular on the footing of gross negligence) was made out, yet could have been satisfied that there was a ‘gross failure’ to look after the deceased in the condition he was in. I cannot see that on the facts of the case there was any perceptible space for such a scenario...”

In the context of the allegations of gross negligence, the judge referred to the undisputed fact that arrangements had been made by the police for the Forensic Medical Examiner to see the deceased.

“There was also the very important evidence that PC Bennett was instructed to keep continuous watch over the deceased in the cell, looking through a wicket in the door. [Counsel for the family] seeks to raise a question whether this instruction was properly carried out. The custody record shows that when the officers re-entered the cell and found the deceased having a fit he was lying on his front. He had previously ... been turned or turned himself onto his back. The Coroner records PC Bennett (p. 63 1.3) as saying he had only momentarily turned his gaze away from the wicket when PS Sorensen arrived outside the cell; and (1.5) ‘when they looked back he was on his face’. [Counsel for the family] points to the expert evidence of Professor Knight and Dr Carey to the effect that if a prisoner is taken out of the prone position (as by being put on his back) he recovers the ability to breathe; and so [counsel] submits... ‘it is therefore difficult to understand why he further deteriorated and dies, if he was as Bennett alleged on his side or back while he was continuously watched’.

I am afraid I regard that this argument is entirely speculative. When the officers re-entered the cell, seconds after PS Sorensen arrived and spoke with Bennett, the deceased was as I have said having a fit; and most unhappily must have been in a critical and terminal condition as the events which immediately followed demonstrate. He was not in control of his movements. He may have turned voluntarily on his front. There is nothing here to call into question the clear evidence that PC Bennett fulfilled his instructions to watch over him.”

The applicant appealed this decision. It was dismissed on 30 July 1998 by the Court of Appeal composed of Lord Justices Woolf MR, Hobhouse and Thorpe. Lord Justice Woolf considered that there had been only borderline justification for leaving the verdict of unlawful killing to the jury. While there had been misdirections of law on “unlawful killing”, he refused to quash the verdict and order a fresh inquest as

– the verdict would not have been affected;

– any fresh inquest after this passage of time would inevitably be less satisfactory and most unlikely to result in any different verdict; and

– the inquest had performed in an exemplary manner the investigation of the facts and little more could be achieved by subjecting all concerned to the considerable expense and stress of a further inquest.

Lord Justice Woolf commented that it was important to note that it was not suggested that the way the deceased was treated at the time of his arrest was improper.

Leave to appeal to the House of Lords was refused on 21 July 1999, of which the applicant was informed on 23 July 1999.

2. Complaints to the Police Complaints Authority

The matter was referred by the Metropolitan Police to the Police Complaints Authority (PCA), an independent body established by an Act of Parliament to oversee complaints by members of the public against police officers. It informed the family that it had investigated two disciplinary aspects of the case: whether any police officer had abused his authority by using unnecessary violence towards Wayne Douglas in effecting his arrest and detention, and whether any police officer had neglected his duty by failing to take proper care of the applicant’s brother whilst in custody.

The PCA found on 27 January 1997 that there were no grounds for criticism of the actions of any police officer on these issues.

3. Positional Asphyxia and Restraint

Prior to the deceased’s death, there existed significant literature on the dangers of police methods of restraint and that the very scenario which was the context of the deceased’s death had been the subject of the following expert warning: a suspect, particularly one who is large, who has had his breathing compromised (due to running away from police officers and/or struggling in the course of his apprehension) who is then handcuffed to the rear, and placed on his front in the prone position, may be in danger.

The Metropolitan Police were aware of the dangers of positional asphyxia and officers had received training on this. The evidence from PC Page and PS Sorensen during the Inquest was that they had apparently had such training a few weeks before the incident. However, this training was limited and the Coroner expressed himself to be “appalled” that the topic had been dealt with in about 10 minutes.

Following the Coroner’s recommendations, an Operational Notice was issued on 22 January 1997 to all divisions in respect of positional asphyxia, dealing with risk factors, signs and symptoms, and ways of reducing risks. This was to be incorporated into a new two-day training course for Metropolitan Police Officers with effect from 1 April 1997.

B. Relevant domestic law and practice

1. Inquests

Inquests are governed by the Coroners Act 1988 (“the Act”) and Coroners Rules 1984 (“the Rules”). Under s.8 of the Act, an inquest must be held if a person has died “a violent or an unnatural death”. It is the function of an inquest, as defined by the s. 11(5)(b) of the Act and r. 36 of the Rules, that a coroner and a jury shall look into and determine four essential matters: who the deceased was, and where, when and how the deceased came by his/her death.

There is no legal aid for representation at inquests. Prior to April 1999, there was no right to disclosure of documents, but there is now a scheme for limited disclosure, although not commensurate with that available for other types of proceedings.

It has been consistently emphasised in case-law that an inquest is an inquisitorial fact-finding exercise, and not a method of apportioning guilt. For example, Bingham LJ declared in ex parte Jamieson :

“It is not the function of a coroner or his jury to determine, or appear to determine, any question of criminal or civil liability, to apportion guilt or attribute blame. This principle is expressed in Rule 42 of the 1984 Rules.” [1995 1 QB 1]

There is no right of appeal in relation to an inquest and the High Court’s role is limited to review, which may be by way of judicial review, or statutory as contained in sections 13(1) and (2) of the Act. This section applies where, on an application by or under the authority of the Attorney-General, the High Court is satisfied as respects a coroner either –

“(a) that he refuses or neglects to hold an inquest which ought to be held; or

(b) where an inquest has been held by him, that (whether by reason of fraud, rejection of evidence, irregularity of proceedings, insufficiency of inquiry, the discovery of new facts of evidence or otherwise) it is necessary or desirable in the interests of justice that another inquest should be held.

The High Court may –

order an inquest or, as the case may be, another inquest to be held into the death...”

2. Fatal Accidents Act 1976

Under the Fatal Accidents Act 1976 a claim may be brought by the dependants of the deceased for loss of support. Dependants include spouses and former spouses, children and parents, persons treated as children and/or  parents, grandparents and grandchildren, and co- habitees of the opposite sex who had lived with the deceased for more than two years. The claim under the Fatal Accidents Act is for the following three heads:

– the value of the dependency;

– funeral expenses; and

– bereavement damages currently in the amount of £7500 for the surviving spouse, the parents of a legitimate child or the mother of an illegitimate child.

There is no claim under the Fatal Accidents Act for a deceased who leaves no dependants, or who does not fall into the limited category of persons mentioned above. English law does not recognise a tort for wrongful death.

3. Law Reform (Miscellaneous Provisions) Act 1934

Under section 1 of this Act, a cause of action subsists in the personal estate of the deceased for any right of action the deceased would have had for damage caused by an act or omission before he/she died.

COMPLAINTS

The applicant complains under Article 2 of the Convention that the deceased’s right to life was violated since the force which resulted in her brother’s death was not absolutely necessary and could have been avoided. She further submits that the State failed in its positive duty to protect her brother’s life, because no proper safeguards were taken to respect his right to life, and there were insufficient preventative steps in place to protect his life from the dangers of positional asphyxia and restraint.

The applicant also complains of a breach of the procedural aspect of Article 2, submitting that the inquest proceedings were an inadequate investigative mechanism for examining the surrounding circumstances of the deceased’s death.

The applicant submits under Article 3 of the Convention that her brother was subjected to inhuman treatment when in police custody, prior to his death, as his treatment when placed in the prone position caused intense physical or mental suffering. He was also deprived of the necessary and appropriate medical treatment.

The applicant submits that the failure of the Court of Appeal to order a fresh inquest violates her right to respect for family life under Article 8 of the Convention, as a properly concluded inquest verdict is an essential part of her right to grieve.

Finally, the applicant complains under Article 13 of the Convention that she has no effective domestic remedy in respect of her brother’s death provided in the courts or by the Police Complaints Authority.

THE LAW

The applicant complains of the circumstances of her brother’s death in police custody and the lack of access to court or effective remedy provided in that respect, invoking Articles 2, 3, 8 and 13 of the Convention. These provide as relevant:

Article 2 of the Convention provides in its first sentence:

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

Article 3 of the Convention provides:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 8 of the Convention provides as relevant:

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

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.”

A. Concerning exhaustion of domestic remedies

In answer to a question put by the Court on the question as to whether the applicant had exhausted domestic remedies in respect of her brother’s death, as required by Article 35 § 1 of the Convention, the Government stated that the Law Reform (Miscellaneous Provisions) Act 1934 provided that all causes of action (save two immaterial exceptions) vested in Wayne Douglas on his death survived for the benefit of his estate. It followed that an action could be brought against the police by his estate in respect of any alleged police misconduct. The Fatal Accidents Act 1976 also gave a right to any dependants of Wayne Douglas where it was alleged that his death was caused by any wrongful act, neglect or default. Accordingly, if there had been any evidence of wrongdoing on the part of any police officer, this could have formed the basis of a claim for damages brought by his estate or any dependant. They commented however that in the circumstances no valid complaint or arguable claim in negligence arose and that there was no basis for any claim before the courts.

The applicant submits that no effective remedy exists. As her brother died without dependants, no action under the 1976 Act lies. No action could be brought under the Law Reform (Miscellaneous Provisions) Act 1934 for negligence as this required proof that he suffered some other injury (other than the fact of his death) or some financial loss to the estate (such as funeral expenses) or that, while he was alive, he was victim of a malicious or deliberate abuse of power. Even if it had been possible in theory to bring an action to claim the funeral expenses in this case, it was inconceivable that legal aid would have been granted given the cost of bringing such an action in comparison to the benefit of the modest monies recoverable.

The Court notes that the Government do not in fact submit that this application should be rejected for non-exhaustion of domestic remedies and that they appear to take the view that the possible causes of action in the courts were not available to the applicant due to the lack of any basis for claims of police wrongdoing. While the lack of evidential support for an applicant’s claims is generally relevant to issues of substantiation of the merits rather than a ground of exemption from exhausting available domestic remedies, the Court notes that there is no indication that any action for damages would have been available to the applicant even assuming there was clear evidence of any police wrongdoing causing the death of her brother. She was not a dependent for the purpose of the 1976 Act and the 1934 Act only covered injuries or ill-treatment short of death (see, concerning similar circumstances, no. 27229/95, Keenan v. the United Kingdom , (Sect. 3) ECHR 2001, § 128). The Government have not suggested that the applicant could realistically have sought legal aid for the purposes of pursuing the loss to the estate of funeral expenses arising from the death.

Consequently, the Court considers that this application cannot be rejected for non-exhaustion of domestic remedies.

B. Article 2 of the Convention

1. The parties’ submissions

The Government submit that the police officers did not use unreasonable force in arresting Wayne Douglas and deny that he was treated by them in any improper way. He was a large man who had shown that he could be dangerous - he had threatened two householders and police officers with a knife and had punched one police officer – and was subjected only to such force as was reasonable to arrest him and bring him into custody. There had been nothing to suggest that he was in ill-health and by their verdict the Coroner’s jury indicated that they regarded the restraint in the prone position as being in accordance with current police methods. The PCA had considered the issue of training, finding that some of the officers had received training on the risks of positional asphyxia. In any event, the academic literature on this condition related to cases outside the United Kingdom which were usually associated with the “hog-tied” position not in use by police officers in the United Kingdom.

Further, the Government submit that the inquest proceedings conducted in this case amounted to a thorough, impartial and careful examination of the circumstances surrounding the death of Wayne Douglas and thus fulfilled the procedural requirement under Article 2 to provide an effective investigation into the death.

The applicant submitted that the use of force applied by the police officers was not absolutely necessary under a proper construction of Article 2 of the Convention. Wayne Douglas, a large man whose breathing had been compromised due to the chase and struggles with police officers had been restrained in the prone position on several occasions. In particular, he had been placed in the “cell relocation position” while being searched in his cell, which had involved being placed on his front with his legs bent behind his back and crossed with an officer holding his heels. He had been released by officers springing off him and though he had been noted to groan and that his face was covered with nasal mucus, he was left on his own. No medical assistance had been obtained and there was a question mark over the nature and extent of subsequent monitoring. Given his condition against the background of the use of force and the nature of the use of force, the police should have been on notice of his impending demise and they should have called for medical assistance at a much earlier stage. This failure caused or contributed to his death.

As regarded the inquest, the applicant did not accept that this had provided a proper inquiry into the death of her brother. While an inquest could in certain circumstances meet the procedural obligations of Article 2 insofar as an investigation into the facts were concerned, a full and proper investigation included a proper conclusion based on those findings, which the applicant was denied in the instant case.

2. General principles

Article 2, which safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, to which in peacetime no derogation is permitted under Article 15. Together with Article 3, it also enshrines one of the basic values of the democratic societies making up the Council of Europe. The circumstances in which deprivation of life may be justified must therefore be strictly construed. The object and purpose of the Convention as an instrument for the protection of individual human beings also requires that Article 2 be interpreted and applied so as to make its safeguards practical and effective (see the McCann and Others v. the United Kingdom judgment of 27 September 1995, Series A no. 324, pp. 45-46, §§ 146-147).

In the light of the importance of the protection afforded by Article 2, the Court must subject deprivations of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as for example in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries and death which occur. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC] no. 21986/93, ECHR 2000-VII, § 100, and also Çakıcı v. Turkey , [GC] ECHR 1999-IV, § 85, Ertak v. Turkey no. 20764/92 [Section 1] ECHR 2000-V, § 32, and Timurtaş v. Turkey , no. 23531/94 [Section 1] ECHR 2000-VI, § 82).

The Court recalls that the first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see the L.C.B. v. the United Kingdom judgment of 9 June 1998, Reports of judgments and decisions 1998-III, p. 1403, § 36). This may extend 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 Osman v. the United Kingdom judgment of 28 October 1998, Reports 1998 ‑ VIII, § 115) or from risks to their health arising from other circumstances under the responsibility of a public authority (see no. 27229/95, Keenan v. the United Kingdom , (Sect. 3), to be published in ECHR 2001, §§ 90-92). For a positive obligation to arise, 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 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 Osman judgment , cited above, § 116).

The obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see, mutatis mutandis , the McCann judgment , cited above, p. 49, § 161, and the Kaya v. Turkey judgment of 19 February 1998, Reports 1998-I, p. 324, § 86). The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. This investigation should be independent, accessible to the victim’s family, carried out with reasonable promptness and expedition, effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances or otherwise unlawful, and afford a sufficient element of public scrutiny of the investigation or its results (see no. 24746/94, Hugh Jordan v. the United Kingdom , (Sect. 3), to be cited in ECHR 2001, §§105-109).

3. The Court’s assessment

(a) Alleged State responsibility for the death of Wayne Douglas

The Court recalls that Wayne Douglas was found, at the inquest, to have died from a combination of heart failure, stress, and positional asphyxia. It is not alleged before this Court that the death resulted due to injuries inflicted by the police officers on arresting him. Rather that the circumstances of the arrest, and in particular the method of restraint used, placed him at risk of positional asphyxia and that the police did not take the necessary steps to protect him from that risk.

The Court notes, first of all, that although the Coroner recommended that the police implement improved training about the risks of positional asphyxia to persons restrained face down with arms handcuffed behind their backs, a number of the police officers involved in the arrest and custody of Wayne Douglas had received training and were aware of the problem. His difficulty in breathing when first placed in the cell had been noted. He was turned over onto his back, which, according to one police officer, appeared to relieve the problem. It is not however the case that Wayne Douglas was then left in his cell without any further precaution. Instructions were given to summon the forensic medical examiner and for a constant watch to be carried out until the doctor arrived. This was about 3.08 a.m. Some twenty-three minutes later, at about 3.31 a.m., the police entered the cell to carry out resuscitation as the police officer on watch reported that he was having a fit. He was conveyed to hospital at 3.42 a.m. where he was pronounced dead at 3.56 a.m. The doctor who gave evidence at the inquest had no criticism to make of the conduct of the police in dealing with Wayne Douglas during the incident. There is furthermore no indication that if police officers had received any more detailed training on the risks of positional asphyxia that events would have turned out differently.

From the submissions of the applicant, it appears however that complaint is made that the use of force applied on Wayne Douglas was not absolutely necessary. As the Government have pointed out, no argument as to any alleged excessive use of force was raised in the domestic proceedings on judicial review. Indeed it is not contested that Wayne Douglas had been armed with a knife and had threatened two householders and a number of police officers. He had resisted arrest and had assaulted the arresting officer. No significant physical injury was found to have been inflicted on him in the course of the arrest. He was however held down in the prone position when overcome by the police officers and in the police van while being transferred to the police station. The Court is not persuaded that the applicant has shown in the circumstances that the use of this force was excessive or disproportionate.

The applicant has also sought to cast doubt on whether Wayne Douglas was kept under constant surveillance as ordered. The High Court judge, who heard the judicial review application concerning the inquest, found this allegation to be entirely speculative. The evidence from the officer concerned was that he only momentarily turned his gaze from the wicket in the door as a senior officer arrived. The Court finds no basis on the materials before it to contradict this evidence in any substantial way.

Nor does the Court find that the police officers failed to take any reasonable step available to them in response to Wayne Douglas’s condition. The applicant has referred to the possibility that they could have taken Wayne Douglas directly to hospital after arrest. This seems to the Court to be an unrealistic assertion. While some of the police officers involved in the arrest and detention had been aware that the applicant was showing signs of breathing difficulties, they had no reason to suspect that he was about to suffer a life-threatening seizure. Both the High Court judge and the Coroner concluded that there was no evidence in the case that any police officer could have foreseen Wayne Douglas’s sudden and catastrophic collapse.

The Court concludes that the applicant’s complaints concerning police responsibility for the death of Wayne Douglas have not been substantiated and must be rejected as manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

(b) Alleged failure to comply with the procedural obligation to provide an effective investigation

The authorities were in this case under an obligation to carry out an effective investigation into the circumstances of Wayne Douglas’s death following his arrest and detention by the police. The Court recalls that an inquest was held before a Coroner and jury, at which the various police officers involved in the arrest and detention, as well as doctors and pathologists gave evidence. The jury reached a verdict of accidental death.

The applicant’s main complaint about the inquest procedure appears to centre on its failure to reach a proper conclusion, namely, a finding of unlawful death. The Court recalls that the applicant took judicial review proceedings alleging that the Coroner had erred in the way which he had described the various verdicts open to the jury. The High Court and Court of Appeal considered that while the Coroner’s direction concerning the different types of unlawful death might not have been altogether clear the jury would, even if properly directed, have reached the same verdict. Reviewing the evidence, they found that there was only borderline evidence to justify leaving the verdict of unlawful death to the jury at all.

The Court recalls that the procedural obligation is an obligation of means, not result (see Hugh Jordan v. the United Kingdom , cited above, § 107). The verdict of unlawful death had been left to the jury, before which all the relevant facts and arguments concerning the circumstances of Wayne Douglas’s death had been ventilated. The applicant had been present and represented during the proceedings. The fact that the jury nonetheless reached a verdict of accidental death cannot be regarded in this case as depriving the inquest procedure of its effectiveness.

The Court finds that this part of the application must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

C. Article 3 of the Convention

The Government submit under Article 3 of the Convention that Wayne Douglas was not subject to inhuman and degrading treatment on arrest. They stated that they used reasonable force to disarm him, that they had reasonable grounds to believe him dangerous and carried out restraint in accordance with approved police methods. The medical evidence indicated that he only had minor physical injuries. There had been no basis for suspecting that his immediate admission to hospital was necessary, a doctor had been called to examine him immediately, he was kept under constant supervision and as soon as his condition was seen to deteriorate he was given mouth to mouth resuscitation.  No criticism had been made of manner in which the police had handled Wayne Douglas following his collapse.

The applicant relies on the same arguments she made in respect of her Article 2 claim.

The Court recalls that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and/or mental effects and, in some cases, the sex, age and state of health of the victim (see, amongst other authorities, the Tekin v. Turkey judgment of 9 June 1998, Reports 1998-IV, § 52). It is relevant in the context of the present application to recall also that the authorities are under an obligation to protect the health of persons deprived of liberty ( Hurtado v. Switzerland, Commission report of 8 July 1993, Series A no. 280, p. 16, § 79). The lack of appropriate medical treatment may amount to treatment contrary to Article 3 (see Ilhan v. Turkey [GC] no. 22277/93, ECHR 2000-VII, § 87).

The use of force by the police in arresting Wayne Douglas and placing him in custody has not been found by the Court to be excessive or disproportionate given the fact that he had been armed with a knife and acted in a violent and threatening manner. Nor has it been substantiated that the police failed to take reasonable steps to safeguard his health. The Court recalls that the police placed him on his back when he had breathing difficulties in his cell, called for the forensic medical examiner, placed the cell under continuous watch and then applied resuscitation measures when he was seen to be having a fit.

The Court finds that the authorities have not been shown to have failed in any positive obligation to protect Wayne Douglas’s health while in custody. This part of the application must therefore be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

D. Article 8 of the Convention

The applicant’s complaint under this provision alleges principally that the failings in the inquest have deprived her of a proper conclusion to the proceedings and thus undermined the grieving process.

The Court has found above that the authorities did not fail in their obligations under Articles 2 and 3 of the Convention, in particular that the inquest provided an effective investigation into the circumstances of Wayne Douglas’s death. No separate issue can therefore arise under Article 8 of the Convention and this aspect of the case must also be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

E. Article 13 of the Convention

The Government submit that no arguable claim of a violation of the Convention arose requiring provision of an effective remedy. There had been no evidence that the police had used unnecessary or unreasonable force and the inquest had provided a thorough investigation into the death. If there had been any evidence of wrongdoing, a cause of action would have accrued to Wayne Douglas’s estate or to his dependants. Such actions would have provided determination of liability and damages.

The applicant submits that there was no effective remedy provided in respect of Wayne Douglas’s death. There should have been the provision of a proper conclusion, decision or verdict, together with a proper remedy in monetary terms. This did not happen given the errors made by the Coroner in his summing-up as identified by the Court of Appeal and the shortcomings in the available causes of action provided by the 1934 and 1976 Acts (see above, under exhaustion of domestic remedies).

According to the Court’s case-law, Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see the Boyle and Rice v. the United Kingdom judgment of 27 April 1988, Series A no. 131, § 52).

The Court has above found that the applicant’s complaints under Articles 2, 3, and 8 are 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 unanimously

Declares the application inadmissible.

S. Dollé J.-P. Costa Registrar President