CONCURRING OPINION OF JUDGE S ir S tephen SEDLEY

Article 2

1. With some hesitation I have joined with the other members of the Court in finding no breach of Article 2. The essential basis of the majority’s finding of a breach of Article 3 and of the unanimous finding of a breach of Article 13 is, after all, that a disturbed prisoner, known to be a suicide risk but now approaching the end of his short sentence, was administratively sentenced for a violent breach of discipline to a further substantial spell of imprisonment, the first part in punitive isolation, without the possibility of appeal or review. It is understandable that these facts were regarded by the dissenting members of the Commission as indicative of a breach of Article 2. Mr Rozakis, for example, wrote:

“... the authorities, while they knew about the suicidal tendencies of Mark Keenan, and [while] they had in their hands reasonable means to avert the fatal incident, opted for a policy which contributed to rather than avoided his taking of his life.”

2. Article 2 contains not a general assertion of the right to life but a specific obligation of Signatory States to protect that right by law. This is why the facts which have led the Court to find a breach of Article 3 might no less aptly have been regarded as demonstrating a breach of Article 2. Nevertheless, in the light of the view of the other members of the Court that a causal link is not sufficiently made out, I have not dissented.

Article 3

3. For the same reasons, I have had doubts about the finding of a violation of Article 3. At the date of the present judgment the Court is still considering in other proceedings the compatibility with Articles 5 and 6 of a system which allows a State official to impose an unappealable penalty of loss of liberty upon a prisoner. Taking the disciplinary system, therefore, to be proper, I can see force in the view that so long as disturbed offenders remain in the general prison population they cannot be exempted from its provisions, provided the prison doctor certifies them fit for punishment.

4. Moreover, unlike most breaches of Article 2, a breach of Article 3 requires no fatality. Yet, if Mark Keenan had not killed himself, it is not easy to see what his case would have been under Article 3. As the Court has more than once said, all punishment is to an extent degrading. Moreover, as is confirmed by the pattern of voting in the present case, violation of Article 13 does not require an established, but only an arguable, breach of a substantive Convention right. In the end, however, I have cast my vote in favour of a finding of a breach of Article 3 because it is evident from the

fatal outcome that the stress of the punishment on this disturbed offender was greater than it ought to have been made to bear. In the light of the inadequate monitoring of his condition, the combination of the infliction and the timing of this punishment can properly be characterised as inhuman.

5. This conclusion, it should be noted, is not dependent on a consequential death. That the same or not very different findings might have answered the question of causation under Article 2 and have been characterised as a failure of the law to protect Mark Keenan’s right to life needs perhaps to be borne in mind by those with responsibility in this area of public administration.

Article 13

6. Although money is sometimes the only form in which redress for an injustice can be given, it does not follow that the requirement of Article 13 for an effective remedy will necessarily be satisfied by a payment of damages. The present case, in my opinion, demonstrates in at least two important respects that an effective remedy may lie elsewhere.

Mark Keenan

7. It is because of the want of recourse for a mentally disturbed prisoner against a punitive award of extra days that there was a breach of Article 13 in relation to the deceased. He had no effective remedy against a punishment which arguably violated his rights under Articles 2 and 3 (we do not yet know whether Articles 5 or 6 were also violated). It is plain from the report of the senior prison medical officer at HMP Exeter, Dr Keith, (on which most of my own conclusions in this case are based) that Mark Keenan’s condition and behaviour are by no means exceptional. Other cases will differ in degree but not necessarily in kind. It will be for the United Kingdom government to decide to what extent the logic of the Court’s decision calls either for automatic review or for a right of immediate appeal in relation to awards of additional days to prisoners of particular kinds or prisoners generally.

Susan Keenan

8. As to the question of a remedy – the word is hardly appropriate – for Mark Keenan’s death, I do not believe that a claim in domestic law by his mother for a sum of money could be regarded without more as an effective remedy, and I do not suppose that she so regards it. What is necessary in such a case as this, as the Court has several times stressed, is a proper and effective inquiry into responsibility for the death. This can, it is true, take the form of an action for damages if the allocation of liability is a prerequisite of an award. Here, however, the Court has concluded (and the amount of the Government’s own contingent offer of just satisfaction confirms) that the paucity of the damages available to a non-dependent parent such as the applicant in her capacity as administratrix of her son’s estate makes her cause of action an ineffective remedy – not in the sense that more money would make it an effective remedy but in the sense that it is too little to be worth pursuing. Indeed the decisions of the Court of Appeal and the House of Lords in Hicks v. Chief Constable of South Yorkshire [1992] 1 All England Law Reports 690, 2 All England Law Reports 65, that crush injuries leading to death within moments do not sound in damages, makes it extremely unlikely that any damages at all would be awarded for a brief period of suffering before a violent death; and if any damages were awarded, they would be at most a few hundred pounds.

9. What could, however, afford an effective remedy for death of the present kind is an inquest with procedures which assure the rights and interests of persons such as the applicant and with power to determine responsibility where this is possible. It is common ground that the English inquest in its modern form does not afford these things. This is not because the Coroners’ Act 1988 forbids it: on the contrary, by section 11(5)(b)(ii) it requires a finding to be made as to how the deceased came by his death, a provision plainly capable of including an allocation of responsibility in a proper case. It is because Rule 42 of the Coroners’ Rules 1984, made in the exercise of delegated powers by the Lord Chancellor, forbids the framing of the verdict in such a way as to appear to determine civil liability or a named person’s criminal responsibility.

10. It is not for this Court to determine how the United Kingdom is to secure compliance with Article 13 following a prison suicide. But it may be observed that the patriation of the Convention by the Human Rights Act 1998 has not brought the issue, as it brings other issues, within the processes now available to the national courts for securing compliance with the Convention, because Article 13 has not been included in the Convention rights scheduled to the Act. As a result, the requirement of section 3 of the Act that all legislation is so far as possible to be read and given effect in a way which is compatible with the scheduled Convention rights does not give the courts any mandate to interpret the word “how” in section 11 of the Coroners’ Act 1988 in a way compatible with Article 13. It must therefore be for the Government rather than the courts in this instance to decide how to make good the applicant’s lack of an effective remedy for the suicide in custody of her son.