BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FOURTH
SECTION
CASE OF
ALDER v. THE UNITED KINGDOM
(Application
no. 42078/02)
JUDGMENT
(Striking out)
STRASBOURG
22
November 2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial revision.
In the case of Alder v. the United
Kingdom,
The
European Court of Human Rights (Fourth Section),
sitting as a Chamber composed of:
Lech Garlicki, President,
Nicolas
Bratza,
David Thór Björgvinsson,
Päivi
Hirvelä,
Ledi
Bianku,
Nebojša Vučinić,
Vincent
A. De Gaetano, judges,
and Fatoş Aracı,
Deputy
Section
Registrar,
Having
deliberated in private on 3 November 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 42078/02)
against the United Kingdom of Great Britain and Northern Ireland
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a British national, Ms Janet
Alder (“the applicant”), on 30 September 1998.
- The
applicant was represented by Mr A. Gask, a solicitor with
Liberty, a civil liberties organisation based in London.
The United Kingdom Government (“the Government”)
were represented by their Agent, Ms Laura Dauban, of the Foreign and
Commonwealth Office.
- The
applicant complained, on her brother’s behalf, about his
death in custody on 1 April 1998 and, in particular, argued that
there had been a violation of the substantive aspect of Articles 3
and 14 as well as a breach of the procedural guarantees of Articles 2
and 3 of the Convention.
- By
a decision of 14 December 2010 the Court declared the application
admissible.
- On
21 July 2011 the Government submitted a declaration on the basis of
which it requested the Court to strike the case out of its list of
cases. By letter of 9 September 2007 the applicant submitted comments
thereon.
THE FACTS
- The
applicant, Ms Janet Alder, is a British national living
in Lancashire. The case concerns the death of her
brother, Mr Alder, while he was in the custody of Humberside police
on 1 April 1998. Mr Alder was of Nigerian origin, he was born in 1960
and he had two children.
- The
facts of the case, as submitted by the parties, are summarised below.
A more detailed description can be found in the Court’s
decision on the admissibility of this case (Alder v. the United
Kingdom (dec.), no. 42078/02, 14 December 2010).
- In
the early hours of 1 April 1998 Mr Alder was assaulted at a nightclub
and transported by police officers to hospital. He was disruptive at
the hospital and aggressive to police officers and he was arrested
for breach of the peace. He was transported in a police van to
Humberside police station.
- On
arrival, he was unconscious. He was dragged into the police station
and placed face down on the floor of the custody unit. His body was
inert. Blood dripped from his mouth. His trousers and underwear were
around his knees and he was doubly incontinent. From arrival until
his death, he was unconscious and his breathing was audibly slow and
laboured. The custody unit was a small prisoner/reception area
through which various police officers circulated while Mr Alder was
on the floor. Various cameras recorded constantly (image and sound)
in the custody suite. His handcuffs were removed approximately 2
minutes after his arrival.
- Some
ten minutes after his arrival, the police officers realised that he
had stopped breathing. Their efforts and those of the ambulance
personnel, to resuscitate him were unsuccessful. He was later
pronounced dead.
-
On the same day the Humberside police began an extensive murder
investigation into the assault on Mr Alder in the night club. While
the pathologist indicated by 2 April that that assault had not caused
Mr Alder’s death, he did not formally report until 29 April at
which point Humberside police handed their investigation file to West
Yorkshire police. The latter had also begun a death in custody
investigation on 1 April 1998.
- On
8 April 1998 the relevant police officers were notified that
consideration was being given to bringing disciplinary proceedings
against them and they were later suspended from duty. Expert reports
received during this period disagreed on the issue of causation
namely, whether medical treatment at the police station would have
changed the outcome.
- In
June and August 1998 the West Yorkshire police sent investigation
reports to the Police Complaints Authority (“PCA”) and to
the Crown Prosecution Service (“CPS”): the reports made
numerous criticisms and recommendations and highlighted the
above-noted causation problem.
- In
August 1999 the relevant police officers were charged with misconduct
in public office and the CPS postponed the prosecution pending the
outcome of the Inquest.
- The
Inquest began in July 2000 and took extensive witness and expert
evidence. On 24 August 2000 the Inquest jury found that the
relevant injury to Mr Alder had been sustained either in the police
van or in the custody suite and that he had been “killed
unlawfully”. The relevant officers challenged this verdict
on judicial review and, on 9 April 2001, the High Court rejected
their application.
- The
CPS then resumed its consideration of criminal charges reviewing,
notably, their and other medical experts’ views on whether
earlier intervention by the police officers could have saved Mr
Alder’s life. In March 2002 the trial judge allowed the CPS to
add a count of gross negligence manslaughter to the indictment.
- On
21 June 2002, at the close of the prosecution case, the trial judge
dismissed the gross negligence manslaughter charge, on the grounds of
lack of causation and the charge of misconduct in public office, on
the ground that there was no evidence of “deliberately
overlooking” the risk that Mr Alder was in need of medical
care. All officers were acquitted and their suspension was
lifted. Further to the Attorney-General’s request for an
advisory opinion on the elements of the offence of misconduct in
public office, on 7 April 2004 the Court of Appeal confirmed the
trial judge’s opinion.
- The
PCA proposed the pursuit of neglect of duty charges against the
relevant officers but the Deputy Chief Constable Clark of Humberside
police did not consider that disciplinary charges were required. The
PCA responded by directing disciplinary charges to be brought against
the relevant officers (section 93(3) of the Police and Criminal
Evidence Act 1984).
- In
January 2003 the officers were officially charged with the
disciplinary offence of failing to carry out their duties with due
promptness and diligence. Following a disciplinary hearing, on 24
June 2003 the disciplinary charges were dismissed against all
officers.
- In
April 2004 the Home Secretary required the newly formed Independent
Police Complaints Commission (“IPCC”) to review the
events leading up to and following the death of Mr Alder, including
considering whether or not the manner in which the investigation was
conducted had impacted on the later criminal and disciplinary
proceedings.
- On
27 February 2006 the IPCC issued an extensive report. It was highly
critical of the conduct of the arresting officers and of officers in
the custody suite, of the lack of independence and effectiveness of
the Humberside and West Yorkshire investigations, of the initial
decision not to pursue disciplinary charges until obliged to do so by
the PCA as well as of the disciplinary proceedings pursued. It
identified “major systemic failures” notably, that the
failure by officers to assist Mr Alder was largely due to assumptions
they had made based on negative racial stereotypes and that there had
been a major failure in the police disciplinary system.
- On
the same day the Humberside police issued a statement indicating the
improvements, particularly as regards the racism criticisms, which
had taken place since Mr Alder’s death. Soon thereafter the
Chief Constable of Humberside police issued a letter of apology
addressed directly to the applicant.
- Three
civil actions have been pursued as regards Mr Alder’s death.
The first was begun by Mr Alder’s son: it was settled in March
2007 on a confidential basis. The second was issued by the applicant
against several defendants: in October 2008 she settled with the PCA
for GBP 20,000 and it would appear that the remainder of that action
is ongoing. The third was issued by both the applicant and Mr Alder’s
sons against several defendants alleging that they had failed to
preserve evidence and investigate the death: it would appear that
this action has been discontinued, at least in part.
THE LAW
- The
applicant complained of a violation of the substantive protection of
Articles 3 and 14 of the Convention as well as of a breach of the
procedural guarantees of Articles 2 and 3 of the Convention.
- By
letter dated 21 July 2011
the Government requested the Court to decide, on the basis of their
unilateral declaration, that it was no longer justified to continue
the examination of the application and to strike the case out of the
list of cases under Article 37 of the Convention.
- The
unilateral declaration provided as follows:
“The Government accept that the lack of an
effective and independent investigation in this case constitutes a
violation of the procedural obligations in Articles 2 and 3 of the
Convention. Further, the Government accept that the treatment that
the Applicant’s brother received in police custody amounted to
a substantive violation of Article 3 with 14 of the Convention.
As regards the lack of an effective and independent
investigation, the following steps were taken after the death of the
Applicant’s brother in 1998:
(i)
The Police Reform Act 2002, which has been effective from 1 April
2004, created a new police complaints system, it established the
Independent Police Complaints Commission (“IPCC”) and
placed a duty on all police forces to refer cases to the IPCC which
involve the death or serious injury of a person following contact
with the police;
(ii)
The IPCC is an independent body with guardianship over the police
complaints system. It has extensive powers including the power to
independently conduct its own investigations. IPCC investigators have
all the powers of a constable in conducting an investigation and
openly publish the findings of their investigations;
(iii)
In December 2008, police regulations were introduced which set out a
new system for the handling of disciplinary cases against police
officers (Police (Conduct) Regulations 2008 .... Proceedings under
these regulations are required to proceed without delay unless there
is considered to be a risk of prejudice to any criminal proceedings.
As regards the treatment that the Applicant’s
brother received in custody, the Government refer the Court to the
following events since 1998:
(i)
There have been a number of high profile reports and inquiries
including (a) the Stephen Lawrence Inquiry in 1999 (looking into the
matters arising from the death of Stephen Lawrence, in order
particularly to identify the lessons to be learned for the
investigation and prosecution of racially motivated crimes); (b) the
Commission for Racial Equality’s Formal Investigation into the
Police Service in 2004 (looking into how police officers are
recruited, trained and managed and whether they have experienced any
racial discrimination in the service); and (c) the Bill Taylor Review
In 2005 (looking into police disciplinary arrangements),
(ii)
There has been significant development in the guidance available to
those working in police custody since 1998. In 2006, the Association
of Chief Police Officers and the Home Office jointly published
“Guidance on the Safer Detention & Handling of Persons in
Police Custody”, for the guidance of the police service and
those professionals (such as doctors) working in the police custody
environment. This Guidance sets out in some detail the risk
assessment processes to be followed at various stages, including on
reception, at various key points during detention (such as point of
charge) and prior to release, as well as a series of principles to be
used where the use of force is necessary in custody, and details the
procedures to be followed to care for those in police detention. In
2010, this guidance was reviewed and the feedback is currently being
analysed before the revised guidance will be published in late 2011.
The Government are confident that these procedures and
laws will assist in leading to the prevention of the sorts of
circumstances that surrounded the Applicant’s brother’s
death.
In these circumstances, and having regard to the
particular facts of the Applicant’s case, the Government
declare that they hereby offer to pay ex gratia to the
Applicant the amount of €26,500 (twenty-six thousand, five
hundred euros), plus €7,500 (seven thousand, five hundred euros)
to cover any legal costs and expenses, to be paid in pounds sterling
to a bank account named by the Applicant within three months from the
date of the striking-out decision of the Court pursuant to Article 37
of the ECHR. This payment will constitute the final settlement of the
Applicant’s case.”
- In
her letter of 9 September 2011 the
applicant welcomed the
admission of violations of Articles 2, 3 and 14 of the Convention but
underlined that she did not accept that the reforms outlined had been
sufficient to correct the type of systemic failings which led to her
brother’s death and deprived her family of any meaningful
accountability for it.
- The
Court recalls that Article 37 of the Convention provides that it may
at any stage of the proceedings decide to strike an application out
of its list of cases where the circumstances lead to one of the
conclusions specified under (a), (b) or (c) of paragraph 1 of that
Article. Article 37 § 1 (c) enables the Court, in
particular, to strike a case out of its list if:
“for any other reason established by the Court, it
is no longer justified to continue the examination of the
application”.
- It
also recalls that, in certain circumstances, it may strike out an
application under Article 37 § 1(c) on the basis of a unilateral
declaration by a respondent Government even if the applicant wishes
the examination of the case to be continued.
- To
this end, the Court has examined carefully the declaration in the
light of the principles emerging from its case-law (in particular,
Tahsin Acar v. Turkey,
[GC], no. 26307/95, §§ 75-77, ECHR 2003-VI;
WAZA Spółka z o.o. v. Poland
(dec.) no. 11602/02, 26 June 2007;
and Sulwińska v. Poland
(dec.) no. 28953/03, 18 September 2007).
- The
Court has established in a number of cases, including in cases
against the United Kingdom,
its practice as regards complaints about matters similar to those
about which the present applicant complains (including Keenan
v. the United Kingdom, no. 27229/95, ECHR
2001 III; McKerr v. the United Kingdom, no. 28883/95,
ECHR 2001 III; Hugh Jordan v. the United Kingdom, no.
24746/94, ECHR 2001 III (extracts); Paul
and Audrey Edwards v. the United Kingdom,
no. 46477/99, ECHR 2002 II; Younger v. the United Kingdom
(dec.), no. 57420/00, ECHR 2003 I; Menson v. the United
Kingdom (dec.), no. 47916/99, ECHR 2003 V; and Bailey v.
the United Kingdom (dec.), no. 39953/07, 19 January 2010).
- Having
regard to the nature of the admissions contained in the Government’s
declaration, as well as the amount of compensation proposed –
which is consistent with the amounts awarded in similar cases –
the Court considers that it is no longer justified to continue the
examination of the application (Article 37 § 1(c)). It
is understood that the declaration only concerns the application
before this Court and that the adoption of this judgment is without
prejudice to any pending domestic civil proceedings concerning the
death of the applicant’s brother. It is also understood that,
in the event of a failure to pay the applicant the relevant sums
within the three-month period to which the declaration refers, the
Government will pay simple interest on the amounts, from the expiry
of that period until settlement, at the rate equal to the marginal
lending rate of the European Central Bank during the default period
plus three percentage points.
- In
light of the above considerations, and in particular given the clear
and extensive case-law on the topic, the Court is satisfied that
respect for human rights as defined in the Convention and the
Protocols thereto does not require it to continue the examination of
the application (Article 37 § 1 in
fine).
- In
view of the above, it is appropriate to strike the case out of the
list.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Takes
note of the terms of the respondent
Government’s unilateral declaration and of the modalities for
ensuring compliance with the undertakings referred to therein; and
2. Decides
to strike the case out of the list.
Done in English, and notified in writing on 22 November 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Lech Garlicki
Deputy
Registrar President
