European Court of Human Rights

19 November 2009

FOURTH SECTION

Application no. 40957/07
by Jean PEARSON
against the United Kingdom
lodged on 19 September 2007

STATEMENT OF FACTS

THE FACTS

The applicant, Ms Jean Pearson, is a British national who was born in 1945 and lives in Shipley, the United Kingdom. She is represented before the Court by Ms Borrill a solicitor practising in Leeds.

The applicant’s daughter, Kelly Pearson, died (at 30 years of age) on 10 November 1999. The facts of the case, as submitted by the applicant, may be summarised as follows.

A.  The circumstances of the case

Kelly Pearson was a troubled young woman who had a history of mental health problems associated with, or compounded by, substance misuse.

From May-July 1999 five warrants for Kelly Pearson’s arrest were issued by three different Magistrates’ Courts. She was arrested on 9 August 1999. On 7 September 1999 her case was considered by a Magistrates’ Court and sentencing was deferred to 6 January 2000, pending which she was released on bail. She returned to her family home in West Yorkshire.

Although those proceedings meant that the five warrants were no longer live, her details still circulated on the Police National Computer (“PNC”). On 5 November 1999 she was arrested at her family home. She was initially detained at a police station (Eccleshill) until 8 November 1999 when a PNC search incorrectly revealed an outstanding warrant. She was therefore transported on that date to a police station (Belgravia) in London.

She was detained overnight at that station and appeared before the Magistrates’ Court on 9 November 1999. The error was discovered by about 10.15 am and Kelly Pearson was released from custody. She remained in the Magistrates’ Court building for some time while various individuals and agencies considered the costs and logistics of her return to West Yorkshire.

She left the court premises and remained in London overnight. On 10 November 1999 she had lunch in a hostel and, at approximately 4.00 pm, she visited a drop in clinic for homeless people. At about 6.30 pm she was discovered by a police officer in Wardour Street in London. She was evidently extremely unwell. Less than an hour later, she was pronounced dead in hospital.

1. The Inquest

On 15 November 1999 an Inquest was opened and adjourned by the Coroner. It was resumed on 25 April 2002, after the coming into force in October 2000 of the Human Rights Act 1998 (“HRA”). The Inquest lasted one day.

The applicant argued that the Inquest should examine the following matters:

- Who or what factor(s) was responsible for the original execution of the warrant not being registered with the proper authorities?

- Who or what factor(s) was responsible for incorrect details being entered, on the PCN?

- What, if any, safeguards existed, to prevent the errors?

- Why was there no reference on the Prisoner Risk Assessment Form that came from Eccleshill police station to medication, drug abuse or self- harm?

- What happened to Kelly Pearson’s medication prior to being discharged from custody?

- Who was responsible for securing basic financial, logistical and therapeutic support to a vulnerable woman who had been falsely imprisoned and unlawfully transported hundreds of miles from her home, family and probation officer?

- Why was Kelly Pearson left to die involuntarily, homeless, penniless and without sufficient medication?

- Why were the two treating doctors not able to take more effective action in dealing with Kelly Pearson’s mental health difficulties on the day of her death?

The Coroner did not allow the Inquest to cover such matters, the Inquest being limited to matters directly causative of death. Since Kelly Pearson had died before the entry into force of the HRA, the question “how she came by her death” was considered by reference to the pre-HRA test (R. v. North Humberside Coroner, ex parte Jamieson [1995] QB 1), rather than by reference to the more recently developed “Middleton” test (R.(Middleton) v, West Somerset Coroner [2004] UKHL 10 and R.(Sacker) v. West Yorkshire Coroner [2004] UKHL 11).

Having reviewed the evidence, the Coroner explained the five standard questions in the Inquisition form to which the jury had to respond. Items 1 and 5 concerned certain personal identifying details of the deceased. Item 2 concerned the “injury or disease causing death”: the Coroner considered this to be “crystal clear” and that there was absolutely no dispute given the pathologist’s conclusions (“Methadone, Diazepam and alcohol poisoning”). Item 3 concerned the “the time, place and circumstances at or in which injury was sustained”: the Coroner explained that there was nothing to fill in since the deceased did not suffer any injuries. Item 4 constituted the “verdict” and allowed two possible conclusions namely, “death by misadventure” and “an open verdict”. The former was described as where ‘an unlooked for or unintended fatal outcome arose from some voluntary act or actions of the deceased’. The jury found that the cause of death was “methadone, diazepam and alcohol poisoning” (Item 3) and it returned a verdict of death by misadventure (Item 4).

The Coroner then closed the Inquest as follows:

“From the evidence we heard, [Kelly Pearson] certainly needed help but there is no evidence to suggest that all the professionals, or indeed the health care professionals, had done anything other than acted in good faith, professionally and tried to help her within quite difficult circumstances. [Kelly Pearson] died as a result of a drug overdose, by her own volition, which is very sad and tragic indeed. Clearly, no one who had any knowledge of this tragic death could not but have the deepest sympathy for [Kelly Pearson’s] mother who clearly was at the end of her tether trying to do the best for her. Her frustration was compounded by the unfortunate ‘cock up’ of the inappropriate warrant which then brought [Kelly Pearson] to London where she died. [Kelly Pearson’s] mother’s distress and, indeed, palpable anger, was entirely understandable, and the Court Services at the very least, owe her a big apology indeed. No doubt there will be an inquiry into this matter, which is entirely outside of the remit of my court and I shall comment no more and.....I wish them luck in their quest in seeking answers to address her concern.”

2. The High Court

In October 2003 the applicant applied under Article 13 of the Coroner’s Act 1988 (the 1988 Act”) for the fiat of the Attorney General to challenge the Inquest in the High Court under section 13 of the 1988 Act. She argued that the Inquest was “insufficient” mainly because it failed to comply with Article 2 of the Convention. The fiat of the Attorney General was granted on 20 May 2004. Counsel for the Coroner did not seek to argue that the Inquest conducted was Article 2 compliant, but rather that it did not need to be given the date of the deceased’s death. In February 2005 the applicant supplemented her submissions. She maintained, inter alia, that the intervening McKerr judgment (In re McKerr [2004] 1 WLR 807) was not relevant as it concerned whether section 6 of the HRA created free-standing causes of action against public authorities in respect of events preceding the entry into force of the HRA, and it did not concern section 3 of the HRA which required that legislation (in this case the 1988 Act) be read and given effect to compatibly with the Convention, irrespective of whether the facts predated the HRA.

On 6 May 2005 the challenge was dismissed by judgment of the High Court (Jean Pearson v HM Coroner for Inner London North [2005] EWHC 833). The High Court defined the key question before it as follows: where a Coroner was conducting an Inquest into a death which occurred before the coming into force of the HRA, was the approach to the question of “how the deceased came by his or her death” (section 11(5)(b)(ii) of the 1988 Act) to be considered by reference to the pre-HRA test (a Jamieson Inquest) or by reference to the more recent Middleton test developed by reference to the HRA (the Jamieson and Middleton judgments are cited above)? This raised two issues.

The first issue was whether an Inquest into a pre-HRA death had to be Article 2 compliant namely, whether the HRA was retroactive. The High Court found that it was not, so that the Inquest into a pre-HRA death did not have to be Article 2 compliant. The High Court came to this view largely on the basis of the above-cited judgment of the House of Lords in re McKerr, delivered on the same day as the above-cited Middleton and Sacker judgments. The High Court stated:

“It comes to this. When Article 2 [of the Convention] provides that “everyone’s right to life shall be protected by law”, it embraces both a positive obligation on the state to protect everyone’s life and a procedural requirement that there should be some form of effective official investigation, when an individual has been killed. The present case is concerned with that procedural obligation. It is not the primary obligation imposed by Article 2 but in the words of Lords Nicholls [in McKerr], “a consequential obligation”. Or in the words of Lord Brown a “secondary or ancillary or adjectival” obligation. The logic of McKerr is inexorable. If the positive obligation did not arise in domestic law prior to 2 October 2000, the consequential, secondary, ancillary or adjectival, obligation cannot now give rise to a domestic obligation because it is consequential upon and secondary, ancillary and adjectival to the substitutive obligation, to protect life. I am driven to the conclusion that if the Appellate Committee in Middleton and Sacker had been required to address this question, it would have yielded to the same inexorable logic.”

On this first issue, the High Court concluded:

“On the first issue, I therefore conclude that the Human Rights Act does not require a Coroner now investigating a death which occurred before the coming into force of the Act to conduct an inquest in an Article 2 compliant manner. It may be that his failure to do so may be actionable in international proceedings in Strasbourg, just as the failure of the Secretary of State resulted in a successful application to Strasbourg in McKerr. However, that does not assist the claimant in the domestic context.”

The second issue was whether the Jamieson Inquest conducted was insufficient even by pre-HRA standards. The High Court found that the present Coroner had the correct Jamieson requirements in mind. The High Court referred to one exchange between Counsel for Kelly Pearson’s family and the Coroner in which the Coroner’s stated that it was within his remit to determine “matters that are directly causative to death but not to enquire into every underlying circumstances which may be thought of, however remotely, which may have responsibility for the death”. The High Court also found that the Coroner had clearly properly applied those requirements and the High Court continued:

“Having regard to the principles set out in Jamieson and the other authorities to which I have referred, I am entirely satisfied that the Coroner was entitled to proceed as he did. He received a considerable amount of evidence relating to [Kelly Pearson’s] background and to the events of the last two days of her life. Several witnesses gave evidence about 9 and 10 November. They included the custody officer at Belgravia Police Station, the solicitor who had dealt with Kelly at Horseferry Road Magistrates Court, a probation officer who also saw her there, a doctor who acted as Force Medical Examiner at Belgravia Police Station, a mental health project worker who had seen [Kelly Pearson] at the Day Centre which she visited on 10 November and a doctor who had dealt with her at the Drop In Centre very shortly before her collapse in Wardour Street. The Coroner was undoubtedly entitled to conclude that, under the [pre-HRA] law, it was unnecessary for there to be a detailed investigation into how the warrant came to be executed erroneously.”

In commenting on the final passage of the Coroner and in concluding itself, the High Court noted:

“...I wish to associate myself with the deep sympathy expressed by the Coroner. I well appreciate that the claimant, as a loving parent, will continue to feel aggrieved by the scope of the inquest. It will be no consolation to her that if [Kelly Pearson] had died after 2 October 2000, different considerations would have applied to the parameters of the inquest. Sadly, however, the less generous law which applies to the inquest in the present case fails to provide her with all the answers to which she, understandably, feels entitled. I am sorry to say that her appeal must be dismissed.”

3. The Court of Appeal

On 6 September 2005 leave to appeal to the Court of Appeal was granted, the single judge noting that the intervening judgment of the Court of Appeal went in the present applicant’s favour (R.(Hurst) v London Northern District Coroner [2005] EWCA 890). The applicant’s appeal was stayed, however, pending the House of Lords judgment in the Hurst case. On 28 March 2007 that judgment was delivered (R.(Hurst) v London Northern District Coroner [2007] UKHL 13), the House of Lords reversing the Court of Appeal judgment in that case and finding that there was no duty on a Coroner to hold an Inquest complying with Article 2 of the Convention in relation to a death that occurred prior to the entry into force of the HRA even if the Inquest took place thereafter and that section 3 of the HRA did not change this. Lord Brown specifically endorsed the judgment of the High Court in the present applicant’s case, stating that that High Court judgment was “compelling”.

On 6 April 2007 the applicant’s Counsel advised her that her appeal had no realistic prospects of success and should be withdrawn.

B.  Relevant domestic law and practice

The Court refers to its outline of “relevant domestic law and practice” in the Hurst application (no. 42577/07)

COMPLAINTS

The applicant complains that the holding of a “Jamieson Inquest” to determined “how the deceased came by her death” (section 11 (5)(b)(ii) of the 1988 Act) did not fulfil the procedural rights guaranteed by Article 2 of the Convention and breached her right to an effective remedy guaranteed by Article 13 of the Convention.

QUESTIONS TO THE PARTIES

In particular, was there an adequate investigation into the circumstances leading up to and surrounding Kelly Pearson’s death which would comply with the requirements of that Article. The parties are requested to comment, in this context, on civil proceedings for damages in negligence (against the police) and/or police disciplinary proceedings?