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19 November 2009
FOURTH SECTION
Application no.
42577/07
by Christine HURST against the United Kingdom
lodged
on 27 September 2007
STATEMENT OF FACTS
THE FACTS
The applicant, Ms Christine Hurst, is a British national who was born in 1944 and lives in Hertz. She is represented before the Court by Ms F. Murphy, a solicitor practising in London. The application concerns the killing of her son, Troy Hurst, by a neighbour Mr Reid, on 25 May 2000.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background to the events of 25 May 2000
The following facts (save where indicated) were agreed by the applicant and the Police Commissioner in the appeal before the House of Lords (see below).
Both Troy Hurst and Mr Reid were tenants in an estate owned and run by the London Borough of Barnet (“the housing authority”). Troy Hurst lived in a flat with, among others, his father (“Mr Hurst”). The applicant adds that the back entrance to the Hurst’s flat was directly opposite the entrance to the block of flats in which Mr Reid lived.
In February 1997 the police were called to a fight between Mr Reid and another tenant: there was an allegation of assault and threats to kill. The police recorded that Mr Reid had “lots of previous for assault and assault on police, was very violent and may carry weapons”. If there were any calls to his address caution was to be exercised as it looked like he was “causing problems with neighbours.” In October 1997 the housing authority received a complaint from a tenant alleging assault and threats to kill by Mr Reid. Mr Reid was warned by police on 6 October 1997.
In July 1998 the housing authority received another complaint of assault by Mr Reid. Temporary and then permanent alternative accommodation was arranged for the complainant given the latter’s fear of Mr Reid.
On 23 July 1998 the housing authority received a complaint that a female tenant had been assaulted and threatened with a bladed article by Mr Reid. Mr Reid responded in writing denying the allegations and refused to come to the housing authority office to discuss the matter. The housing officer did not visit Mr Reid as the police advised that he was prone to violence. The tenant was transferred out of the area and did not wish to proceed further with the complaint.
In November 1998, December 1998 and January 1999 the housing authority received complaints that Mr Reid had been threatening because he thought he was being talked about. On 20 January 1999 two allegations were made of common assault on an elderly tenant. Police officers spoke to Mr Reid who indicated that many people talked about him and he denied any use of violence. Checks with Barnet Psychiatric Services did not reveal any further information. Police Sergeant (PS) Mortimer “decided to monitor and supervise the case.”
On 11 February 1999 Mr Reid was detained under section 136 Mental Health Act 1983 “as a result of several assaults over the past two years on local residents and neighbours.” The Forensic Medical Examiner concluded that he was slightly paranoid. The Crisis Team (mental health issues) were called to examine him but he was not involuntarily committed under the Mental Health Act 1983. Police noted that he was “definitely violent and that officer safety should be considered when dealing with him.”
On 10 March 1999 a tenant reported being threatened by Mr Reid with a knife. Mr Reid was searched but no knife was found.
On 11 March 1999 Troy Hurst reported Mr Reid to the police for threatening him with a knife.
On 17 March 1999 Mr Reid was arrested, charged and prosecuted for harassment of the local postman and his mother. Police noted the presence of a carving knife on a chair by his bedroom door. The Forensic Medical Examiner considered that Mr Reid was paranoid. The Crisis Team did not consider that he should be involuntarily committed. PS Mortimer recorded that Mr Reid was “ready to go over the edge at any minute and is very volatile.” In capital letters he noted “I am extremely concerned that this man will sooner or later injure or kill someone and I personally believe him to be extremely dangerous”. Mortimer contacted the housing authority to discuss re-housing/evicting Mr Reid. In due course Mr Reid was charged with harassment offences as regards the postman and his mother.
On 6 April 1999 a notice seeking possession was served on Mr Reid, given the complaints about his behaviour from residents including the Hursts. On 13 April 1999 Mr Reid attended a meeting at the housing office but denied any wrongdoing, indicating again that he was being laughed at and talked about on the estate. He alleged that Troy Hurst and another were antagonising him. Upon Mr Reid undertaking not to go near other residents and to contact the police or the housing authority rather than deal with matters himself the housing authority decided to monitor the situation.
In April 1999 the barmaid of a pub reported to police that a group of males armed with shotguns had come into the pub looking for Troy Hurst and that one of the males also had a knife. Troy Hurst had said they were brothers of Mr Reid.
On 20 May 1999 Mr Reid was found guilty of harassment of the postman and his mother and remanded for reports. Police noted that all calls to the address were to be treated as urgent as Mr Reid was definitely violent and recorded that a knife had been found on an earlier occasion.
On 22 May 1999 Mr Reid was arrested for affray and assault occasioning actual bodily harm on Mr Hurst. It was alleged that Mr Reid pulled a knife from his waistband and attempted to slash Mr Hurst across the face. Mr Reid then chased Mr Hurst to his home brandishing the knife. Troy Hurst frightened Mr Reid away with a baseball bat. While waiting for police to attend, Mr Reid returned to bang on the door of Hurst’s flat. Mr Reid was arrested. No knife was found.
On 22 May 1999 the housing authority referred the possession proceedings to solicitors to commence court proceedings. The Hurst family were offered temporary housing but did not accept the offer.
On 10 June 1999 Troy Hurst alleged to police that Mr Reid had been to his house endeavouring to intimidate him about the pending criminal proceedings and had poured paint over his car. On 28 June 1999 Mr Reid was tried in respect of the affray and assault charges (incident of 22 May 1999). Troy Hurst and Mr Hurst gave evidence and Mr Reid was convicted. He was sentenced for three pending offences (against Mr Hurst, the postman and the elderly tenant) to three sentences of imprisonment (the longest being three months) all three to run concurrently.
Following his release from prison and on 16 November 1999, Mr Reid threatened Troy Hurst that if Mr Reid was evicted from his local authority home he would “come round and do you and your girlfriend”.
On 2 December 1999 Mr Reid told an employee of the housing authority that he would kill Tony Hurst if he was evicted. The police were not informed of the threat.
On 16 February 2000 the applicant wrote in support of an application by Mr Hurst to transfer to alternative accommodation saying that he was too ill to write himself due to the ongoing harassment “at the hands of mentally ill people housed on the estate.”
In March 2000 Mr Reid banged on the door of the Hurst’s flat causing a disturbance and making threats. The matter was reported to the police. On 31 March 2000 Tony Hurst attended the housing office and reported that Mr Reid had kicked the door at his home address and appeared to have something inside his jacket.
On 3 April 2000 Mr Reid attended the housing authority office and complained of trouble with his neighbours including Troy Hurst. He was informed that complaints had been received from the Hursts and another neighbour that were being investigated. Mr Reid was told that Troy Hurst was due to be interviewed about the allegations. The housing officer’s note reads, “Mr Reid gave the impression that if we didn’t deal with the matter he was complaining about in general, he would deal with the matter himself”. It is then recorded that the housing officer contacted PS Mortimer which resulted in a police computer entry of 11 April 2000 which stated that re-possession proceedings were being taken against Mr Reid and would be heard on 25 May 2000. PS Mortimer recorded that Mr Reid had come to the notice of the police on numerous occasions for threatening and assaulting his neighbours. The entry reads:
“He is very violent powerfully built and suffers from paranoia ...if officers get called to [Mr Reid’s address] please be aware that I have been to this address before and the subject has a large carving knife accessible from inside his front door. He has been assessed by the mental health crisis team in the past and is not ill enough to warrant their attention. I am extremely concerned re this latest threat as I believe this man is extremely dangerous and has the potential to seriously injure or kill. The housing officer also stated that the subject was angry with his current postman who keeps moving his doormat [ref to Royal mail being informed]. This information is for the purpose of officer safety and that all calls be treated as urgent. There is currently a restricted power of arrest for harassment if the subject interferes with the occupiers of [an address] however he is very unpredictable and likely to take offence with anyone that he perceives to be against him.”
During April and May 2000 information was received by the housing authority as regards an application by Troy Hurst for a housing transfer. The application was awaiting assessment by a mental health panel.
On 11 or 12 May 2000 further information was received by police from the housing authority referring to the possession proceedings listed on 25 May 2000. The police “daily tasking and briefing sheet” of 12 or 13 May 2000 records that “If Barnet Council win the case [Mr Reid] will be evicted within 28 days. [Mr Reid] has threatened to ‘get even’ with the people who give evidence against him. Those of you who know [Mr Reid] will know that he is very capable of carrying out this threat.”
On 19 May 2000 a tenant reported to police that he had opened his door to be confronted by a man believed to be Mr Reid who had punched him in the face before producing a knife and threatening him. The police record states “it is apparent that Mr Reid is a dangerous individual and if approached by officers would not hesitate to use violence.”
On 23 May 2000 Troy Hurst signed his statement provided on 17 May 2000 in support of the Council’s possession action against Mr Reid.
On 24 May 2000 Miss Lam, the housing officer, was telephoned by Mr Reid and she recorded as follows:
“He basically wanted to know who had complained against him and he also strongly denied harassing any of the residents on the estate. He stated that the local authority were taking sides against him. He asked me if the complainants were either the man who lived downstairs from him or a lady ... Mr Reid telephones housing office wishing to know who is complaining against him. He denied harassing any of the tenants on the estate and said that the residents were talking and laughing at him. He particularly asked if the complainants were the man who lived downstairs from him or the lady who lived across the road and was told “No”.
2. Events of 25 May 2000
Prior to the hearing of the possession notice, the local authority did not inform Mr Reid of the identity of the witnesses against him and did not serve on Mr Reid any witness evidence from Troy Hurst or any other evidence which could have identified him as a witness.
The following facts (save where indicated) were agreed by the applicant and the Police Commissioner in the appeal before the House of Lords (see below).
On 25 May 2000 Mr Reid attended the County Court: none of the local authority witnesses attended. Ms Lam noted that Mr Reid was aggressive and paranoid. The court adjourned the proceedings to the end of June 2000 so Mr Reid could obtain legal advice and consider the evidence. The housing authority’s application for an injunction (requiring Mr Reid to reside in alternative accommodation during the adjournment) was refused, the judge however ordering that security be present at a subsequent hearing.
The applicant adds that, in the aftermath of the court hearing, Ms Lam telephoned Troy Hurst to say that Mr Reid was to be evicted within 28 days, that he was to be on his guard in the light of Mr Reid’s behaviour in court and that Ms Lam had also contacted the police. While the applicant states that she obtained this information from her son, the local authority and the police submitted in the domestic proceedings that they had no record of such conversations.
On the evening of 25 May 2000 there were four encounters between Mr Reid and the Hurst family:
- At 7.00 pm Mr Hurst was at home when he heard Mr Reid shouting “Come here you white bastard”. He went to the door and found Mr Reid and Troy Hurst facing each other. Both men had clenched fists. Mr Hurst yelled at Mr Reid to go away and leave them alone. Mr Reid departed. At 7.12 pm, Mr Hurst telephoned the police. The control room record reflects that the information provided was: “Male apparently at door with large knife.” At 7.19 pm police officers arrived at the Hursts’ flat. They spoke to Troy Hurst and Mr Hurst about the problems with Mr Reid. There was mention of court proceedings that morning. Troy Hurst clarified that he had not seen a knife in Mr Reid’s hand. At 7.30 pm the officers attended Mr Reid’s house and questioned him. Without conducting an in depth search, the officers had a quick look around to see if a knife was present and they warned Mr Reid that he would be arrested if he returned to the Hursts’ flat.
- At 7.42 pm the police received a second emergency call from the Hurst’s flat. The call was recorded as follows: “Male concerned ... has now returned and threatened to shoot the informant. No weapon seen.” At 7.49 pm the police operator noted that there were “no units available” and no officers attended in response to the call. At 8.07 pm the police operator made a telephone call to Mr Hurst and the police record states that: “the police were not required, as the man had left”.
- At 9.30 pm the police received a third emergency call from the Hurst’s flat. It was alleged that Mr Reid was kicking the front door again. No police units were available. According to a subsequent internal police Management Review (subsequently disclosed in February 2005 by the IPCC, see below), it was “not clear if [the police] had any knowledge of the earlier calls”.
- According to the same internal review, there were further calls by neighbours at 9.42 pm and 9.44 pm informing the police of the emergency which was now in progress before the final call at 9.49 pm by Mr Hurst which informed the police that his son had been stabbed.
Although not part of the agreed facts on appeal to the House of Lords, the following would appear to be the circumstances of Troy Hurst’s death. Following an altercation between Mr Reid and Troy Hurst at approximately 9.30 pm on 25 May 2000, witnessed in part by Mr Hurst, Troy Hurst and Mr Hurst reached their front door when Mr Reid returned and lunged at Troy Hurst with a knife. Troy Hurst sustained 6 stab wounds penetrating up to 14.5 cm into his body. He was pronounced dead in hospital at 23.10 pm.
3. The domestic proceedings concerning an Inquest
On 30 May 2000 an Inquest into the death was opened by the Coroner. It was immediately adjourned (section 16 (1) of the Coroner’s Act 1988) once Mr Reid was charged with murder. On 16 July 2001 Mr Reid was convicted of manslaughter and sentenced to ten years’ imprisonment.
By letters dated 2 April as well as 18 and 20 June 2002 the applicant requested the Coroner to resume the Inquest (section 16 (3) of the 1988 Act). By a letter dated 19 November 2002 the Coroner declined: all matters required to be ascertained at an Inquest had been ascertained in the criminal trial and his decision not to resume the Inquest was compatible with Article 2 of the Convention.
(a) The High Court
Given the limited focus of the criminal trial, the applicant wished for an independent and effective public investigation into whether the police and the housing authority might reasonably have prevented her son’s death.
On 18 February 2003 she issued proceedings in the High Court requesting leave to seek judicial review of the Coroner’s decision with a view to having an Inquest, not limited by the Jamieson case (R. v. H.M. Coroner for North Humberside and Scunthorpe ex p. Jamieson ([1995] Q.B. 1), but one which was mandated by and complied with Article 2 of the Convention. On 8 May 2003 leave was granted with certain directions. In accordance with those directions both the Metropolitan Police and the London Borough of Barnet (the first and second interested parties, respectively) served their evidence and, by decision notified on 25 June 2003, the Coroner maintained his decision not to resume the Inquest. On 3 July 2003 leave was granted to challenge this latter decision of the Coroner.
On 4 July 2003 the High Court delivered judgment, the main judgment being given by Lord Justice Rose. He referred to the principles of Osman v. the United Kingdom (28 October 1998, Reports of Judgments and Decisions 1998 VIII), summarised the facts and found that the facts of the case were sufficiently clear to engage the Article 2 requirement to hold an effective public investigation into the circumstances surrounding the death:
“109. [It is] crucial to bear in mind that it is not for this court, which has heard no witnesses, to evaluate the strength of the case against either of the interested parties. Indeed, in my judgment, despite the attractive submissions that have been placed before the court ..., it would be entirely inappropriate, in the light of what is going to happen hereafter, for this court to embark on an analysis of the particular strengths and weaknesses of the case against the interested parties.
110. Our task is to decide whether, when the Coroner refused to resume the inquest, the material then before him, and now before us, gave rise, arguably, to a breach of Article 2 by either of the interested parties.
111. In my view, it did, and however inadequate a remedy the holding of an inquest in such circumstances may be, the Coroner’s refusal to resume it was in my judgment fatally flawed for the reasons which I have given, and breached his obligation under the Human Rights Act to act compatibly with the Convention.”
Mr Justice Henriques agreed, noting:
“114. I agree that there is a sufficiency of evidence to satisfy both limbs of the Osman test. [Counsel for the interested parties] advanced powerful arguments in rebuttal of the criticisms made against their respective clients.
115. The cogency of their arguments served to underline the proposition that there remain arguable issues for determination by the Coroner, and not by this court.”
Both Lord Justice Rose and Mr Justice Henriques found that the Human Rights Act 1998 (“HRA”) applied to the Coroner’s decision to resume the Inquest or not, which decision was taken after the HRA came into force in October 2002. The Coroner was ordered to resume the Inquest.
(b) The Coroner’s response
Between July 2003 and January 2004 the matter was held up because of jurisdictional and/or practical difficulties. By January 2004 a new Coroner assumed responsibility for the Inquest.
However, on 11 March 2004 the House of Lords gave judgment in In re McKerr ([2004] 1 WLR 807) finding that there was no domestic obligation to conduct an inquiry compatible with Article 2 when a death occurred before the HRA came into force. In so finding, at least one of the judgments of the House of Lords specifically considered that the High Court in the present applicant’s case had erred. On the same day, the House of Lords also decided R (Middleton) ν West Somerset Coroner ([2004] 2 AC 182) finding that the limited scope of a Jamieson Inquest (being unable to conclude as to whether the conduct of State agents might reasonably have prevented death) was incompatible with Article 2. To so comply, an Inquest had to consider both “by what means” and “in what circumstances” the deceased came by his death.
By a letter of 19 March 2004 the Police Commissioner raised the effect of the above-cited judgment of the House of Lords in McKerr and, notably, the extent to which it was inconsistent with the present decision of the High Court. In a note to the parties dated 23 March 2004, the Coroner concluded that the House of Lords had expressly overruled the High Court decision so that his offer to resume the Inquest had become void. Between March 2004 and January 2005 the applicant liaised with the original Coroner and the Home Office in order to find a Coroner who would assume jurisdiction over the Inquest pursuant to the order of the High Court which remained extant. On 31 January 2005 a further Coroner notified all parties that he had been appointed as the original Coroner’s deputy for the purposes of resuming the Inquest. On 8 February 2005 the Police Commissioner wrote to that Coroner again raising McKerr and querying whether the Inquest should be resumed at all. On 9 February 2005 the Coroner responded that, since there had been no appeal or order to set aside the judgment of the High Court, he was under a duty to resume the Inquest in pursuance of it.
(c) Court of Appeal
On 16 March 2005 the Police Commissioner applied to the Court of Appeal for permission to appeal out of time. The appeal was dismissed by judgment dated 21 July 2005. The Court of Appeal, in the first place, confirmed that a Jamieson Inquest could only rarely encompass a lack of vigilance. Secondly and alternatively (regardless of whether the HRA applied to the decision not to resume the Inquest), it was not open to the Coroner, in terms of rationality as a matter of English domestic law, to conclude otherwise than that the Article 2 obligation required the resumption of the Inquest. Thirdly, the Court of Appeal determined that the House of Lords judgment in McKerr did not answer the applicant’s case because the critical issue was how the provisions of the Coroners Act 1988 were to be interpreted. This was a question grounded in section 3 of the HRA, which required the court so far as is possible to read and give effect to legislation in a Convention compatible manner. Both Lord Justice Buxton and Lord Justice Sedley held that the operative date for the interpretative obligation under section 3 of the HRA was not the date upon which the HRA came into force but rather the date upon which the Coroner interpreted the Coroner’s Act 1988 (which was after the HRA entered into force). The Court of Appeal upheld the High Court’s decision and, further, indicated that the Inquest would be conducted in accordance with the evolved guidance for Inquests set out in the Middleton judgment of the House of Lords.
(d) House of Lords (R v. (Hurst) v. North London District Coroner [2007] 2 WLR 726, HL)
On 30 November 2005 the House of Lords granted the Police Commissioner leave to appeal. On 28 March 2007 the House of Lords (Lord Bingham of Cornhill, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Brown of Eaton-Under-Heywood and Lord Mance) allowed the appeal.
In the first place, it found that the HRA did not apply to the Coroner’s decision. It disagreed with the Court of Appeal’s reliance on section 3 of the HRA to interpret the Coroner’s Act 1988 in favour of resuming the Inquest. Article 3 would only be applicable if was established that the HRA itself applied, but the McKerr judgment made it clear that the HRA did not apply at all to the Coroner’s decision (since the death took place pre-HRA). In particular, Lord Brown adopted the judgment of Lord Justice Kay in Pearson ν Inner London North Coroner ([2005] UKHRR 896):
“ ... One does not reach the stage of resort to section 3 [of the HRA] as a tool for interpretation unless and until it is established that the [HRA] applies. In Middleton and Sacker it was simply assumed, without demur, that it applies on a retrospective basis but with the point expressly left open. However, the point was very clearly decided in McKerr. It comes to this. When Article 2 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 Lord Nicholls [in McKerr], ‘a consequential 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 substantive 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.”
Since the HRA did not apply to the Coroner’s decision, the House of Lords agreed that the capacity of the Inquest to return a verdict, which could provide a meaningful indication of whether the authorities might reasonably have prevented the death, was not available to the applicant having regard to the Jamieson judgment. The Coroner could not be criticised therefore for assuming that the criminal trial had determined all that an Inquest was required to return and that the lack of vigilance on the part of the police could not form any additional part of an Inquest jury verdict.
On that basis, the majority of the judges (Lords Bingham, Brown and Rodger) held that there should be no Inquest. In this latter respect, Lord Brown explained that an Inquest conducted in accordance with domestic coronial law prior to the coming into force of the HRA would satisfy neither the applicant’s desire for wide-ranging findings upon the circumstances leading up to her son’s death nor the duty of the State under Article 2 of the Convention:
“Given ... that, upon the conclusion of such an inquest, the jury would be debarred from expressing any views whatever upon the conduct which they had been examining (the whole point of a Middleton inquest being ... to enable the jury to state their conclusions on the important underlying issues such as what risks should have been recognised and what precautions taken) the value of such an inquest may be doubted. It might, indeed, be thought the worst of all worlds. Lady Hale and Lord Mance expressly acknowledge that it would not satisfy the United Kingdom’s international obligations under Article 2 of the Convention. Nor would it satisfy the [applicant’s] understandable desire for detailed findings to be made upon the circumstances leading to her son’s death. At best it could occasion a report from the Coroner to a responsible authority under Rule 43. ... Small wonder that such an inquest was not one for which [the applicant] has ever contended.”
Baroness Hale and Lord Mance both agreed that the Inquest could not therefore return a verdict in accordance with Middleton, but they (in a minority on this point) would have ordered an Inquest to resume in any event as it might have covered issues concerning the conduct of the police and the housing authority; a Jamieson Inquest would not exclude this and, even if a resumed hearing would not have had a Middleton verdict open to it, it did not mean that it would not have served some useful purpose.
Moreover and as to whether the Coroner’s exercise of his statutory discretion had to give full weight to the United Kingdom’s international obligations, the majority of the House of Lords (Lords Brown, Bingham and Rodger) overruled this alternative position of the Court of Appeal and held that, while it was permissible under the common-law for a decision-maker to take Article 2 into account, he was not bound to do so, and there could therefore be no basis on the facts of the present case for concluding that the decision of the Coroner was irrational. Lord Rodger added that the opposite conclusion would be “tantamount to treating someone without a Convention right as having a Convention right”.
3. Civil Proceedings
On 23 May 2003, in tandem with her efforts to re-open the Inquest, the applicant issued protective civil proceedings against the Police Commissioner and the Local Authority. The parties agreed to stay the proceedings pending the outcome of the Inquest proceedings.
On 27 September 2007 the applicant’s legal advisers advised her in writing that, having regard to certain domestic cases (Brooks v. Commissioner of Police for the Metropolis [2005] 1 WLR 1495 and Van Colle v. Chief Constable of Hertfordshire [2007] 1 WLR 1821), her civil proceedings had no reasonable prospects of success. Such legal advice put her legal aid in jeopardy. On 26 September 2007 the defendants were notified of the applicant’s decision to withdraw those proceedings.
4. Internal inquiries
(a) Police inquiries
On 29 August 2000 the Hurst family made a formal complaint to the police. The complaint was initially investigated by the Directorate of Professional Standards (DPS). By 27 January 2003 the Police Complaints Authority (“PCA”) indicated that the investigation report had been received and that the PCA was satisfied with the conduct of the investigation. Following later disclosure (by the police before the High Court on judicial review) of certain police information as regards the prior knowledge of the police of Mr Reid’s violence to Troy Hurst, the applicant enquired by letter whether the PCA had had this information before it when it had certified the investigation. In late 2003 the PCA confirmed that it had not had that police material but that it had reviewed the new material and that it was not relevant. The applicant maintained its relevance and requested the police investigation to be re-opened before the PCA and, subsequently, before its successor body, the Independent Police Complaints Commission (“IPCC”).
In December 2004 the IPCC confirmed that it had reviewed the PCA’s decision of January 2003, that the new police material was not relevant and that there was no need to re-open the investigation or to conduct further inquiries. The IPCC also offered to seek disclosure of an internal Management Review of the police investigation by the DPS and a redacted version of this Review was disclosed on 14 February 2005. This Review provided further information to the applicant concerning the level of information that was available to the local authority and the police concerning the threat to Troy Hurst by Mr Reid and, significantly, information as regards a third telephone call to the police on 25 May 2000 just prior to Troy Hurst’s death (referred to above). The Review concluded that there was no doubt that the applicant’s complaint made clear reference to police and local authority action over the 18 months prior to Troy Hurst’s death, but that this appeared never to have been examined and, indeed, that only one of the three incidents on 25 May 2000, prior to the murder, had been investigated. While 4 of the officers who attended the scene on 25 May 2000 in response to the first emergency call were placed under investigation, only one was interviewed. No officer responsible for the allocation of resources on that night was interviewed. While the Review criticised the conduct of the complaint investigation, it noted that the PCA and the IPCC were satisfied with that investigation.
Given the content of the Management Review, by detailed letter of 24 February 2005 the applicant placed the IPCC on notice of her intention to seek judicial review of their certification of satisfaction with the police investigation. Subsequent discussions ended with the IPCC appointing a Deputy Senior Investigator to conduct a review of the police investigations. The relevant report was produced in early 2007 but has not been disclosed to the applicant.
(b) Inter-departmental inquiry
On 19 February 2002 the local authority disclosed to the applicant an extract of a confidential report of an inter-departmental Inquiry Panel (social services and the housing authority) on events prior to 25 May 2000. The applicant had no part in this inquiry. The disclosed Conclusions of the Inquiry Panel included the following acknowledgements:
- that the Crisis Team had been asked to made a decision based on one event without the benefit of the full history;
- that, if the information available could have been shared, the events may possibly have been different;
- that the Housing Department did not have an outlet for its concerns;
- that the mechanisms for monitoring behaviour needed to be addressed across the relevant agencies; and
- that, while there was a degree of liaison between the agencies, there was a fundamental weakness in the process of such liaison.
B. Relevant domestic law and practice
1. Human Rights Act 1998 (“HRA”)
The HRA came into force in England, Wales and Northern Ireland on 2 October 2002.
Section 3 of the HRA provides that “so far as it is possible” primary and secondary legislation must be read and given effect in a Convention compatible manner. Section 6 of the HRA makes it unlawful for a public authority (which includes the police and a local authority) to act incompatibly with Convention rights, unless it is not possible to act differently by virtue of primary legislation. A successful claim under Article 6 would render the relevant public authority liable to the plaintiff under section 7 of the HRA and a judge will have power to award damages under section 8 of the HRA.
2. Coroners and Inquests
(a) Pre-HRA
Section 8(1) of the Coroners Act 1988 requires a Coroner to hold an Inquest in circumstances where there are grounds to suspect that the person (a) has died a violent or an unnatural death or (b) has died a sudden death of which the cause is unknown. However, where a person is charged with the killing of the deceased, the Coroner has the power (section 16(1) of the 1988 Act) to adjourn the Inquest until after “the conclusion of the relevant criminal proceedings”. As to whether the Inquest should be resumed after criminal proceedings, Section 16(3) of the 1988 Act provides as follows:
“After the conclusion of the relevant criminal proceedings, or on being notified under paragraph (b) of subsection (2) above before their conclusion, the coroner may, subject to the following provisions of this section, resume the adjourned inquest if in his opinion there is sufficient cause to do so.”
As to the scope of an Inquest (including a resumed one), section 11(5)(b) of the 1988 Act outlines the content of the Inquisition Form (a document completed by the Inquest jury at the end of the evidence). It must set out, so far as such particulars have been proved (i) who the deceased was; and (ii) how, when and where the deceased came by his death. Rule 36 of the Coroners Rules 1984 requires that proceedings be directed solely to ascertaining: (a) who the deceased was; (b) how when and where he came by his death; and (c) the particulars required by the Registration Act to be registered concerning the death, Rule 36(2) specifically noting that neither the Coroner nor the jury shall express any opinions on any other matters. Rule 42 provides that no verdict shall appear to determine any question of criminal or civil liability on the part of a named person. Accordingly, Inquests in England are able to return verdicts of unlawful killing (without publicly naming the person responsible) because such a conclusion describes the immediate and operative cause of death. However, Inquests cannot return verdicts indicating that State agents could have prevented a death.
In Regina v Her Majesty’s Coroner for Western District of East Sussex ex parte Homberg, Roberts and Manners (unreported 26 January 1994), Lord Justice Simon Brown said:
“In short the inquiry must focus on matters directly causative of death and must, indeed, be confined to these matters alone (save only for ascertainment of the other specific details mentioned in rule 36(1)). The recent, eleventh edition of Jervis on Coroners puts it thus:
‘The question of how the deceased came by his death is of course wider than merely finding the medical cause of death, and it is therefore right and proper that the coroner should enquire into acts or omissions which are directly responsible for the death’.”
This latter case informed the findings of the Court of Appeal in the principal case on the role and function of an Inquest as a fact-finding inquiry concerning a pre-HRA death (R. v. H.M. Coroner for North Humberside and Scunthorpe ex p. Jamieson ([1995] Q.B. 1). Sir Thomas Bingham M.R. held that the words “How... the deceased came by his death” in section 11(5)(b) of the Coroners Act 1988 and Rule 36 were to be understood as meaning “by what means”:
“It is noteworthy that the task is not to ascertain how the deceased died, which might raise general and far-reaching issues, but ‘how ... the deceased came by his death’, a more limited question directed to the means by which the deceased came by his death.”
A Jamieson Inquest provides therefore for narrow circumstances in which a lack of vigilance on the part of the third party could feature in the Inquest verdict.
Having emphasised that the Inquest could not be concerned with matters of ordinary negligence (a failure to take reasonable care), the judgment defined the verdict of neglect (or lack of care) as a particular term of art:
“Much of the difficulty to which verdicts of lack of care have given rise appear to be due to an almost inevitable confusion between this expression and the lack of care which is the foundation for a successful claim in common law negligence.
Since many of those seeking that verdict do so as a stepping-stone towards such a claim the boundary is bound to become blurred. But lack of care in the context of an inquest has been correctly described as the obverse of self-neglect. It is to be hoped that in future the expression ‘lack of care’ may for practical purposes be deleted from the lexicon of inquests and replaced by “neglect.”
Neglect in this context means a gross failure to provide adequate nourishment or liquid, or provide or procure basic medical attention or shelter or warmth for someone in a dependent position (because of youth, age, illness or incarceration) who cannot provide it for himself. Failure to provide medical attention for a dependent person whose physical condition is such as to show that he obviously needs it may amount to neglect.”
(b) Post-HRA
On 11 March 2004 House of Lords decided (R. (Middleton) ν West Somerset Coroner [2004] 2 AC 182; and R. (Sacker) v. West Yorkshire Coroner [2004] 1 WLR 796) that the limited scope of the Jamieson Inquest, being insufficient to provide a meaningful conclusion as to whether the conduct of state agents might reasonably have prevented a death, was incompatible with the procedural requirement of Article 2 of the Convention. In so deciding and using the interpretation mechanism of section 3 of the HRA an Inquest, in deciding “how” the deceased came by his death, was to consider both “by what means” and “in what circumstances” the deceased came by his death.
While the deaths in Middleton and Sacker actually pre-dated the HRA, the retrospective application of the HRA was not raised in, or decided by, either of those cases. Lord Bingham of Cornhill in the Middleton and Sacker judgments noted that no retroactive application question had been raised in those cases and the HRA was assumed to apply so that nothing in the Middleton judgment should be understood as throwing doubt on the conclusion of the House of Lords in a judgment delivered on the same day (In re McKerr [2004] 1 WLR 807, see below).
In its Middleton judgment, the House of Lords considered the extent to which the available verdicts under domestic law fell to be re-interpreted in the light Article 2 of the Convention. The facts of Middleton (like Jamieson) concerned the suicide of a prisoner and fell to be contrasted with Inquests concerning deliberate killings. Lord Bingham held as follows:
“It seems safe to infer that the state’s procedural obligation to investigate is unlikely to be met if it is plausibly alleged that agents of the state have used lethal force without justification, if an effectively unchallengeable decision has been taken not to prosecute and if the fact-finding body cannot express its conclusion on whether unjustifiable force has been used or not, so as to prompt reconsideration of the decision not to prosecute.
Where, in such a case, an inquest is the instrument by which the state seeks to discharge its investigative obligation, it seems that an explicit statement, however brief, of the jury’s conclusion on the central issue is required.”
The judgment goes on to consider whether that requirement applies only to the very limited category of cases just defined, or whether it also applies to circumstances where it is arguable that the State has breached its positive duty to take reasonable steps to safeguard the lives of individuals:
“The decision in [Keenan v. the United Kingdom, no. 27229/95, ECHR 2001 III] shows that it does apply to a broader category of cases, since although in that case no breach of the state’s investigative obligation was alleged or found, the court based its conclusion that Article 13 had been violated in part on its opinion ... that the inquest, which did not permit any determination of liability, did not furnish the applicant with the possibility of establishing the responsibility of the prison authorities nor did it ... constitute an investigation capable of leading to the identification and punishment of those responsible for the deprivation of life. A statement of the inquest jury’s conclusions on the main facts leading to the suicide of Mark Keenan would have precluded that comment.
Two considerations fortify confidence in the correctness of this conclusion. First, a verdict of an inquest jury (other than an open verdict, sometimes unavoidable) which does not express the jury’s conclusion on a major issue canvassed in the evidence at the inquest cannot satisfy or meet the expectations of the deceased’s family or next-of-kin. Yet they, like the deceased, may be victims. They have been held to have legitimate interests in the conduct of the investigation [Hugh Jordan v. the United Kingdom, no. 24746/94, ECHR 2001 III (extracts)], which is why they must be accorded an appropriate level of participation [R (Amin) ν Secretary of State for the Home Department [2004] 1 AC 653]. An uninformative jury verdict will be unlikely to meet what [Amin] held to be one of the purposes of an Article 2 investigation: ‘that those who have lost their relative may at least have the satisfaction of knowing that lessons learned from his death may save the lives of others.’
The second consideration is that while the use of lethal force by agents of the state must always be a matter of the greatest seriousness, a systemic failure to protect human life may call for an investigation which may be no less important and perhaps even more complex [Amin]. It would not promote the objects of the Convention if domestic law were to distinguish between cases where an agent of the state may have used lethal force without justification and cases in which a defective system operated by the state may have failed to afford adequate protection to human life ...”
Noting that this Court had repeatedly recognised that there were many different ways in which a State could discharge its procedural obligation to investigate under Article 2, Lord Bingham went on to emphasise that in England and Wales an Inquest was the means by which the State ordinarily discharged that obligation, save where a criminal prosecution intervened or a public inquiry was ordered into a major accident, usually involving multiple fatalities:
“To meet the procedural requirement of Article 2 an inquest ought ordinarily to culminate in an expression, however brief, of the jury’s conclusion on the disputed factual issues at the heart of the case.”
Accordingly, the regime for holding Inquests (under the Coroners Act 1988 and the Coroners Rules 1984) required modification so that “how” (section 11(5)(b)(ii) of the 1988 Act and Rule 36(l)(b) of the Coroners Rules 1984) was to be interpreted as meaning “by what means and in what circumstances” the deceased came by his death. Lord Bingham therefore made the following observation as to how those Rules would be applied from henceforward:
“The prohibition in rule 36(2) of the expression of opinion on matters not comprised within sub-rule (1) must continue to be respected. But it must be read with reference to the broader interpretation of “how” in section 11(5)(b)(ii) and rule 36(1) and does not preclude conclusions of fact as opposed to expressions of opinion. However the jury’s factual conclusion is conveyed, rule 42 should not be infringed. Thus there must be no finding of criminal liability on the part of a named person. Nor must the verdict appear to determine any question of civil liability. Acts or omissions may be recorded, but expressions suggestive of civil liability, in particular “neglect” or “carelessness” and related expressions, should be avoided. Self-neglect and neglect should continue to be treated as terms of art. A verdict such as ... (‘The deceased took his own life, in part because the risk of his doing so was not recognised and appropriate precautions were not taken to prevent him doing so’) embodies a judgmental conclusion of a factual nature, directly relating to the circumstances of the death. It does not identify any individual nor does it address any issue of criminal or civil liability. It does not therefore infringe either rule 36(2) or rule 42.”
On the same day (11 March 2004) the House of Lords also gave judgment in In re McKerr (cited above). Following a finding of a breach of the procedural obligation under Article 2 by this Court (McKerr v. the United Kingdom, no. 28883/95, ECHR 2001 III), that case determined that an obligation to conduct an inquiry compatible with Article 2 into a fatal shooting could not require an inquiry into a death which took place before the HRA came into force. In doing so, the House of Lords rejected the argument that 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.
3. Civil proceedings against the police
(a) Pre-HRA
The Court refers to the Relevant Domestic Law and Practice outlined in its judgments in Osman v. the United Kingdom (cited above, §§ 89-97) and Z and Others v. the United Kingdom ([GC], no. 29392/95, §§ 57-65), ECHR 2001 V). It would add the following information.
(i) Against the police
The authority of the House of Lords judgment in Hill v. Chief Constable of West Yorkshire ([1989] A С 53) was later relied upon in Osman v Ferguson ([1993] 4 AU. E.R.344), also described in the judgment of this Court in its above-cited Osman judgment.
Since the Hill case, a number of cases have exhibited a sufficient degree of a special relationship to displace the public policy consideration which generally prevents the recognition of a duty of care. They include circumstances where a person acts as an informant of the police (Swinney v. Chief Constable of Northumbria ([1997] QB 464); or has their property targeted in the course of police operations (Rigby v. Chief Constable of Northamptonshire ([1985] 2 All. E.R. 986); or is employed within their service (Waters v. Commissioner of Police ([2000] 1 WLR 1607); or where a person is in detention (Kirkham v. Chief Constable of Manchester ([1990] 2 QB 283). However, none of the cases where a special relationship has been recognised involve a situation where a person is merely a member of the public who seeks the assistance of the police through an emergency call(s).
(ii) Against a local authority
In terms of local authority duties of care, there is a parallel common law line of authority which is authoritatively expressed in the case of X and Others v. Bedfordshire County Council ([1995] 3 All England Law Reports 353). The House of Lords held that local authorities could not be sued for negligence or for breach of statutory duty in respect of the discharge of their functions concerning the welfare of children. That judgment, as well two later significant judgments regarding the extent of liability of local authorities in child care matters (W. and Others v. Essex County Council ([1998] 3 All England Law Reports 111 and Barrett v. London Borough of Enfield ([1999] 3 Weekly Law Reports 79), is described in detail in the above-cited Z and Others v. the United Kingdom judgment.
The public policy constraints on recognising a duty of care in relation to public authorities were given further consideration in Brooks v. Commissioner of Police for the Metropolis [2005] 1 WLR 1495. The claimant was the friend of Stephen Lawrence. Both men had been subjected to a racist attack by five white youths, which resulted in the death of Stephen Lawrence. A subsequent public inquiry held that the investigation, and in particular the treatment of Mr Brooks, was open to criticism on a number of fronts, as well as indicating unwitting racism on the part of several officers and a generalised problem of institutional racism on the part of the Metropolitan Police. The House of Lords allowed the appeal of the Commissioner of Police against the decision of the Court of Appeal refusing to strike out the claimant’s action in damages for negligence. Lord Steyn gave the main judgment of the Court and considered the continuing status of Hill’s case under English law. He conceded that it was no longer appropriate to articulate the public policy issue in terms of an entitlement of public institutions to blanket immunities from civil proceedings. At the same time, the underlying refusal in Hill’s case to recognise a duty of care when the police merely exercise their public functions was upheld:
“But the core principle of Hill’s case has remained unchallenged in our domestic jurisprudence and in European jurisprudence for many years. If a case such as the Yorkshire Ripper case, which was before the House in Hill’s case, arose for decision today I have no doubt that it would be decided in the same way. It is, of course, desirable that police officers should treat victims and witnesses properly and with respect: compare the Police (Conduct) Regulations 2004 (SI 2004/645). But to convert that ethical value into general legal duties of care on the police towards victims and witnesses would be going too far. The prime function of the police is the preservation of the Queen’s peace. The police must concentrate on preventing the commission of crime; protecting life and property; and apprehending criminals and preserving evidence...A retreat from the principle in Hill’s case would have detrimental effects for law enforcement. Whilst focusing on investigating crime, and the arrest of suspects, police officers would in practice be required to ensure that in every contact with a potential witness or a potential victim time and resources were deployed to avoid the risk of causing harm or offence. Such legal duties would tend to inhibit a robust approach in assessing a person as a possible suspect, witness or victim. By placing general duties of care on the police to victims and witnesses the police’s ability to perform their public functions in the interests of the community, fearlessly and with despatch, would be impeded. It would, as was recognised in Hill’s case, be bound to lead to an unduly defensive approach in combating crime.”
Both the judgments of Lord Steyn and Lord Nicholls recognised that there would be exceptional cases where a duty of care would be held to exist.
(b) Post-HRA
The Court of Appeal gave judgment in the case of Van Colle ν. Chief Constable of Hertfordshire case ([2007] 1 WLR 1821) concerning a death after the entry into force of the HRA and included a specific analysis of the difference between common law negligence and an action under section 7 of the HRA for a breach of Article 2. The deceased was one of two witnesses in a theft prosecution and where it was alleged that the police had sufficient prior notice of risk.
In the course of its ruling the Court of Appeal made various observations to the effect that, although the claim under section 7 of the HRA was upheld, the claimant would not have succeeded on the same facts if the claim were brought in negligence:
“[Counsel for the claimant] stressed the fact that the claimants did not frame their claim in negligence before the judge and they have not done so before us. That was because of the difficulty of persuading the court that the police owed them a duty of care in the light of the decisions of the House of Lords in [Hill and Brooks]. Although there was a suggestion in the course of the argument that a duty of care might be owed on the particular facts of this case and, indeed, the judge’s judgment gives the claimants some encouragement, the claimants have never advanced their case on that basis and it seems to us to be fraught with difficulty. We shall proceed on the footing that on the authorities as they stand at present no duty of care was owed by the police to the claimants.”
In analysing the difference between the common law and the Article 2 jurisprudence, the Court of Appeal noted that the public policy concerns about finite police resources were acknowledged in the Convention jurisprudence, by setting the threshold for a breach of Article 2 at a relatively high point, although not so high as to require gross negligence. Having cited the relevant paragraph 116 of the above-cited Osman judgment of this Court, the Court of Appeal observed:
“It is important to note that in that paragraph the court stressed that not every claimed risk to life gives rise to a positive obligation under Article 2. That is because of policy considerations which are very similar to those which led the House of Lords in [the Hill] case to conclude that no duty of care is owed by the police to those in the position of Giles. However, unlike the solution so far adopted by the common law, the solution adopted by the court under the Convention was not to hold that there was no positive obligation actionable at the suit of a victim to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual, but to hold that such an obligation must be interpreted so as not to impose an impossible or disproportionate burden on the authorities.”
Having upheld the finding in favour of the claim by the first instance court, the Court of Appeal reiterated its assumption that “as the common law stands at present, the police would be held to owe no duty of care and skill in this regard.” In so finding the Court rejected the suggestion by the judge in the Court below that it was not inevitable that the claims would have been dismissed if they were brought under common law negligence.
At the same time, the Court made it clear that in terms of future litigation under the HRA, it was not persuaded that the conclusions it had reached would threaten police resources:
“The discharge of the obligations we have identified would not have involved the use of significant further police resources. All that was required was some further thought by a properly trained and instructed officer and some action to protect Giles. Instead, as was correctly conceded on their behalf, the police did nothing in that regard. In these circumstances we do not accept the submission that to uphold the judge’s decision will open the floodgates to baseless claims against the police. On the contrary, we see no reason why it should not help to engender the exercise of the care and skill to be expected of the police to protect vulnerable witnesses in appropriate cases.”
The House of Lords ([2008] UKHL 50) subsequently allowed the appeal of the Chief Constable in the Van Colle case finding that the claimants had not satisfied the “Osman threshold” so that there had been no violation of the substantive requirements of Article 2 of the Convention. In the parallel appeal before it decided at the same time (Smith (FC) v. Chief Constable of Sussex Police ([2008] UKHL 50) which concerned only a claim in the common law of negligence, the House of Lords confirmed the “robust” approach of the Brooks judgment and explicitly contrasted that with the remedy available to an applicant under the HRA, holding that the common law remedy should be allowed to stand on its own feet side by side with the alternative HRA remedy.
COMPLAINTS
In the first place, the applicant complains of a substantive violation of Article 2 in that the police and the housing authority were aware or ought to have been aware of a real and immediate risk to the life of Troy Hurst, but that those authorities failed to take reasonable steps to prevent his death.
Secondly, she complains of a breach of the procedural obligations of Article 2 of the Convention. Since her son was killed prior to the coming into force of the HRA, the House of Lords decided that neither the provisions of the HRA nor Article 2 of the Convention could apply to require an investigation into the applicant’s son’s death which took place before October 2000. Accordingly, the State has not promptly carried out an independent and effective public investigation into the death of her son.
Thirdly, and again because his death occurred before the coming into force of the 1998 Act, she complains that domestic law did not enable her to sue the authorities for an arguable breach of Article 2 in violation of Article 13 of the Convention. In particular, she cannot bring a private law claim against the authorities for their failure to take positive steps to prevent her son’s killing because (a) of a clear line of domestic case law which makes it clear that the police do not owe a private law duty of care to prevent a death in the circumstances of a case such as this; and (b) she could not avail of the HRA to advance a private law claim alleging a violation of Article 2 of the Convention given her son’s date of death.
QUESTIONS TO THE PARTIES
In particular, did the relevant public agents know or ought they to have known of the existence of a real and immediate risk to the applicant’s son’s life and did they fail to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk?
In particular, the criminal proceedings against Mr Reid apart, was there an adequate investigation into the circumstances leading up to and surrounding Troy Hurst’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 the local authority) and/or disciplinary proceedings?