CIRC 072: ARTICLE 2 INVESTIGATIONS

The NEC have recently noted the increase in Article 2 Investigations in establishments. Article 2 investigations are inquiries triggered when the state may have failed to protect someone's right to life, as guaranteed under Article 2 of the European Convention on Human Rights (ECHR).

Article 2 states: “Everyone’s right to life shall be protected by law.” It imposes key obligations on the state:

• Positive duty: To take reasonable steps to protect life.
• Systemic duty: Ensuring laws and systems are in place to safeguard life.
• Operational duty: Taking action in specific cases to prevent foreseeable threats to life.
• Negative duty: To refrain from unlawfully taking life.
• Includes restrictions on the use of force by state agents.
• Procedural duty: To investigate deaths where the state may be involved or responsible.

England and Wales

These investigations are typically conducted through Article 2 inquests, which are more thorough than standard inquests and arise when a death involves potential state responsibility.

The investigation usually takes the form of an interview conducted by the Independent Advisory Panel on Deaths in Custody (IAPDC). As you may be aware, the main aim of the IAPDC is to prevent deaths in all forms of state custody in England and Wales, including prisons by:

• Collecting and analysing information on deaths in custody.
• Making recommendations on policy and operational practice.

The purpose of the interview is not intended to establish criminal or civil liability. Its purpose is to gather information that may help prevent future deaths in custody and improve systemic practice. Any report produced by the IAPDC does not publish names of individuals interviewed.

Scotland

Article 2 obligations apply in Scotland, but the legal framework differs:

• Scotland does not use coroners. Instead, deaths are investigated by the Procurator Fiscal.
• Investigations take the form of Fatal Accident Inquiries (FAIs), which may be enhanced to meet Article 2 standards when the state may be implicated.
• There is no equivalent to the IAPDC in Scotland. Instead, policy oversight and systemic review are handled by bodies such as the Scottish Government’s Deaths in Prison Custody Action Group. 

Northern Ireland

Article 2 also applies in Northern Ireland, with some caveats:

• Deaths are investigated by the Coroners Service for Northern Ireland.
• Article 2 inquests are conducted similarly to those in England and Wales.
• However, there are temporal limitations: deaths occurring more than 12 years before 2 October 2000 may fall outside the scope of Article 2 unless exceptional circumstances apply.
• Northern Ireland does not have an equivalent to the IAPDC.

POA members are entitled to be supported by a POA representative during interviews. I would advise that all members have a representative with them to ensure they have appropriate support throughout the process.

Please bring this Circular to the attention of all members.

 

Yours sincerely

STEVE GILLAN
General Secretary