UK: Mubarek family win independent inquiry as crisis hits YOIs
01 August 2001
The family of murdered teenager, Zahid Mubarek, who was killed by a racist prisoner in his cell at Feltham Young Offenders Institution (YOI) in March last year (see Statewatch vol 10 no 2), has been told by a High Court judge that there must be an independent investigation into his death. The family had pressed for a public and accountable inquiry into racism at the YOI, but was told by the Home Secretary David Blunkett that they would have to accept an investigation by the Commission for Racial Equality (CRE). The CRE, which planned to consider Zahid's case as part of a general investigation into racism in the prison system (see Statewatch vol 10, no 6), had refused to use its discretionary powers under the Race Relations Act to "either involve Zahid's family or add any meaningful element" to their inquiry.
It had been argued by counsel for the Secretary of State that the inquiry currently undertaken by the CRE would go towards meeting the government's obligations under Article 2 of the European Convention on Human Rights. This was rejected by Mr Justice Hooper. The CRE could only concern itself with the circumstances leading to the murder insofar as they related to racial matters. Counsel for the Secretary of State argued further that the family should exhaust any remedies against the public authorities before taking action against the Secretary of State. This also was rejected by Mr Justice Hooper: "It does not seem right to me that the Minister should be entitled to require the family of the deceased first to seek judicial review of decisions of other public authorities, such as the Coroner, the CRE or the CPS."
Mr Justice Hooper said that to deny the Mubarek family an independent investigation would be a breach of their rights under Article 2 of the European Convention of Human Rights. Article 2 of the European Convention on Human Rights provides in sub-article (1) 2 that "Everyone's right to life shall be protected by law..." The European Court has made clear the nature of a state's obligation under this Article. In Keenan v UK (ECHR) 3 April 2001, a case in which the applicant was alleging that her son had died in prison due to a failure to protect his life by the prison authorities, the Court stated that:
For a positive obligation (under Article 2) 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 from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.
By virtue of Article 2 therefore there is an obligation to carry out an effective official investigation.
Counsel for the Secretary of State argued that the purpose of any such investigation ought only to decide whether there should be criminal proceedings against state agents. In rejecting this, Mr Justice Hooper argued that it is clear from the case law that one of the principal purposes of requiring an investigation is to ensure future compliance with Article 2 (and Article 3) duties and that limiting the scope of an investigation in the manner proposed by the Secretary of State would not achieve that purpose. In R. on the application of Wright v SSHD (2001) EWHC Admin 520 (see below "Suicides and Deaths in Prison") consideration was given to the necessary features of an investigation compliant with Article 2. Mr Justice Hooper said that the necessary features are:
1. The investigation must be independent.
2. The investigation must be effective.
3. The investigation must be reasonably prompt.
4. There must be a sufficient element of public scrutiny.
5. The next of kin must be involved to the appropriate extent.
Accordingly, in relation to the murder of Zahid Mubarek, Mr Justice Hooper concluded that:
the obligation to hold an effective and thorough investigation can, in my judgement, only be met