European Court of Human Rights

You are here: BAILII >> Databases >> European Court of Human Rights >> Jean PEARSON v the United Kingdom - 40957/07 [2011] ECHR 2319 (13 December 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/2319.html
Cite as: [2011] ECHR 2319

[New search] [Contents list] [Printable RTF version] [Help]

FOURTH SECTION

DECISION

Application no. 40957/07
by Jean PEARSON
against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 13 December 2011 as a Chamber composed of:

Lech Garlicki, President,
David Thór Björgvinsson,
Nicolas Bratza,
Päivi Hirvelä,
Ledi Bianku,
Nebojša Vučinić,
Vincent A. De Gaetano, judges,
and Lawrence Early, Section Registrar,

Having regard to the above application lodged on 19 September 2007,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

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 United Kingdom Government (“the Government”) were represented by their Agent, Ms Y. Ahmed, of the Foreign and Commonwealth Office.

A. The circumstances of the case

2. The applicant’s daughter, Kelly Pearson (born in 1969), died on 10 November 1999.

1. Events leading to the death of Kelly Pearson

Kelly Pearson had a history of mental health problems associated with alcohol and substance misuse.

In September 1999 five warrants against her were considered by a magistrates’ court. Sentencing was deferred (until January 2000) the conditions of which were that she lived with her mother in West Yorkshire, kept in touch with her probation officer (not amounting to formal probation supervision), accepted her treatment for drug abuse and did not commit further offences. She went to live with her mother in West Yorkshire. The facts set out below are taken from the documents submitted, including the transcript of the Inquest held on 25 April 2002 (paragraphs 13-18 below).

Kelly Pearson was seen by many health professionals from September 1999. A General Practitioner (“GP”, who treated her from September 1999) later certified to the Inquest that it was not clear whether she was a chaotic individual with a long history of substance abuse or whether there was evidence of psychotic illness. A psychiatric nurse certified to the Inquest that she was unsettled and agitated expressing paranoid ideation and suspicious thoughts and that most of her problems appeared to be caused by long-standing substance abuse.

Because no recall notice had issued as regards one of the five warrants from the magistrates’ court Authority, in October 1999 British Transport Police officers circulated, in error, Kelly Pearson’s details on the Police National Computer (“PNC”) citing a failure to surrender to the warrant. In short, that warrant was, erroneously, now recorded as “outstanding” whereas it had been dealt with by the magistrates’ court in September 1999.

On 5 November 1999 Kelly Pearson was arrested in West Yorkshire for being drunk and disorderly. She was found guilty by a magistrates’ court on 6 November 1999 and a small fine was imposed.

During that process, a PNC search revealed the warrant erroneously described as outstanding. She was re-arrested on 6 November 1999 and, on 8 November 1999, transferred to London (Belgravia station), arriving at 16.20. The Police Custody Officer (“PCO”) obtained a copy of the “outstanding” warrant and approved her custody at 17.50. He asked her a number of standard questions including those to determine her state of health and well-being. She replied in the negative when asked if she needed any assistance and whether she was suffering from any medical condition, illness or injury. Although she was acting appropriately and calmly, she had medication in her possession and the PCO referred her to the Forensic Medical Examiner (“FME”). The FME examined Kelly Pearson at 20.20, took her history (she was open about her history of drugs and alcohol abuse) and noted her medication (valium and an anti-psychotic medication). The FME advised her and the PCO how the medication should be taken. She was assessed as calm and fit to be detained. The PCO also advised her of her right to consult a solicitor free of charge and to inform someone of her arrest. She spoke with a solicitor by telephone and later (21.45-22.30) he consulted with her at the police station. She was detained overnight.

She was transported the next morning (9 November) to the magistrates’ court. At approximately 10.15 it was discovered that the warrant was not valid and she was released from custody, although she stayed in the building. The Court Police Liaison Officer informed the on-duty probation officer, who happened to know Kelly Pearson and her background, and who, in turn, informed Kelly Pearson. A solicitor (from the law firm which represented her but who did not know her) also consulted with her and, having been informed by a “prison custody officer” that there was no valid warrant, the solicitor also confirmed this to her. The solicitor saw her around 10.15 and at midday and informed her that arrangements would be made by the probation officer for a travel warrant to be issued for her to return home to West Yorkshire. Since she was not under formal probation supervision, her travel could not be funded by the probation service and the probation officer set about obtaining it from court funds. Kelly Pearson insisted on going to a friend’s house in Manchester rather than home: her solicitor and the probation officer agreed. The travel warrant to Manchester from court funds was approved at around 15.30 by a Stipendiary Magistrate. Kelly Pearson collected the travel warrant and, indicating that she knew the way to the bus station, left the court building. The probation officer and her solicitor considered her angry, frustrated and, at times, aggressive. While both believed that she might have been drinking, taking drugs or medication (she had left the court building during the day), neither considered that she needed medical assistance. According to his evidence at the Inquest, the probation officer did not consider her suicidal and he would have brought her to the bus station had he had cause for concern. Kelly Pearson called the applicant in a distressed state at 18.20: she expressed no suicidal intent.

Kelly Pearson did not go to Manchester but remained in London overnight. The following morning (10 November) she attended The Passage Day Centre (a registered charity) where the manager knew her and she spent some time with a mental health project worker. She was not communicative. She telephoned her mother from the Centre. The project worker also spoke to her mother and her mother explained her daughter’s history and provided the number of her GP in West Yorkshire. On the advice of the manager of the Centre, Kelly was referred to a drop-in Medical Centre (which Kelly knew) that afternoon and her GP in West Yorkshire was informed. The project worker gave Kelly Pearson the bus fare to the Medical Centre and Kelly Pearson left in an improved mood.

At approximately 15.00 she attended the Medical Centre (a National Health Service clinic). She saw a GP who was also familiar with her history and who had consulted with her GP in West Yorkshire before he saw her. She refused to take the medication prescription given to her. She was agitated, aggressive and expressing paranoid ideas, but not suicidal. She left the Medical Centre at approximately 16.20.

At 18.32 the police were called to attend when Kelly Pearson had collapsed in the street. Identification, but not medication, was found on her. She was unconscious with a weak pulse. An ambulance arrived and she was transported to hospital where she was pronounced dead at 19.26. The post-mortem examination confirmed that she died of a methadone overdose.

2. 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 of the Human Rights Act 1998 (“HRA”). The Inquest lasted one day.

The applicant, who was present and legally represented, argued that the Inquest should examine: who or what factor(s) was responsible for the original execution of the warrant not being registered with the proper authorities; who or what was responsible for incorrect details being entered on the PNC; what, if any, safeguards existed to prevent the errors; why there was no reference on the Prisoner Risk Assessment Form that came from the West Yorkshire police station to medication, drug abuse or self-harm; what happened to her medication prior to her 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 she left to die involuntarily, homeless, penniless and without sufficient medication; and why were the two treating doctors not able to take more effective action in dealing with her 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” (section 11(5)(b)(ii) of the Coroner’s Act 1988, “the 1988 Act”) 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 post-HRA “Middleton” test (R.(Middleton) v. West Somerset Coroner [2004] UKHL 10 and R.(Sacker) v. West Yorkshire Coroner [2004] UKHL 11). In one exchange between Counsel for the applicant and the Coroner, the latter stated that it was within his remit to determine matters that were directly causative of death but not to enquire into every underlying circumstance which, however remotely, might be considered responsible for death. Accordingly, while the error in relation to the warrant was accepted, it was not the role of the Inquest to enquire into why or how that error had occurred.

The Coroner obtained a considerable amount of evidence about Kelly Pearson’s background and the events of the last two days of her life. The PCO described his contact with the applicant on 8 November. The applicant gave evidence mainly about her difficulty in obtaining information from the probation officer and the solicitor on the morning of 9 November. The solicitor and probation officer described their contacts with Kelly Pearson at the magistrates’ court on the morning of 9 November. The relevant medical personnel also described their contacts with her: the FME at Belgravia Police Station as well as the mental health project worker at the Day Centre and the doctor at the Medical Centre. The Coroner also read into the record reports detailing her symptoms and treatment from her GP, community psychiatric nurse and the consultant psychiatrist, all of whom had treated her in West Yorkshire,. The police officer called to attend when she collapsed in the street and the pathologist who conducted the post-mortem examination also gave evidence.

The Coroner summed up the evidence. He then advised on matters of law, explaining, inter alia, that it was no part of the Inquest’s role to apportion blame given section 42 of the Coroner’s Rules 1984 (“the 1984 Rules”). He 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 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: “death by misadventure” and “an open verdict”. The former was described as a situation where ‘an unlooked for or unintended fatal outcome arose from some voluntary act or actions of the deceased’. The latter (open verdict) was explained as the verdict which could be returned if the jury formed the view that the evidence “did not fully disclose the means whereby the cause of death arose” or if there was insufficient evidence to return a verdict of death by misadventure.

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.”

3. Complaints procedures

The applicant complained to the West Yorkshire Probation Board (“WYPA”) and a report was sent to her solicitors in September 2002 (not submitted). The London Probationary Authority (“LPA”) investigated and reported on the complaint in so far as it concerned the London area. Following a meeting with, among others, the applicant and her solicitors on 17 January 2003 and other inquiries, the LPA issued a report dated 22 January 2003. It found that, while the probation officer was not required to supervise Kelly Pearson on 9 November, he did all that was necessary to ensure a travel warrant was issued; that the erroneous warrant for arrest was not a matter for the probation service but it would be raised by the LPA before the Criminal Justice Board; and that the LPA and the magistrates’ court staff did as much as they could for Kelly Pearson.

The applicant appealed to the Prisons and Probation Ombudsman for England and Wales who conducted an investigation into the applicant’s claims about the LPA and the WYPA. In the Ombudsman’s report of 6 October 2003 he supported the conclusions of the LPA, finding that the probation staff had behaved professionally at the magistrates’ court and had assisted Kelly Pearson as far as it was within their means to do so. On 16 January 2004 the Ombudsman’s report found that the WYPA had fulfilled all of their obligations in respect of the conditions of the deferred sentence, noting that the relevant probation officer in West Yorkshire had gone above and beyond what was required of her.

The applicant also claimed to have made various complaints to the police which were “unrecorded”. She submitted that her appeal to the Independent Police Complaints Commission (“IPCC”) was “upheld” in February 2007 and that the IPCC noted that the complaint might not be investigated because of the lapse of time since the incident. She referred to a letter of 2003 wherein the Metropolitan Police Service declined to “further investigate the circumstances of the applicant’s complaints”. The applicant also believed that she had unsuccessfully pursued complaints to the Magistrates’ Court Authority. No substantiating documents were submitted.

4. Judicial review: the applicant’s challenge to the Inquest

(a) The High Court: Jean Pearson v HM Coroner for Inner London North [2005] EWHC 833

In October 2003 the applicant (who had legal aid) applied to challenge the Inquest under section 13 of the 1988 Act, arguing mainly that the Inquest failed to comply with Article 2 of the Convention. Leave was granted on 20 May 2004.

On 6 May 2005 the case was dismissed by judgment of the High Court. That court defined the key question as: where a Coroner conducted an Inquest into a pre-HRA death, was the approach to the question of “how ... the deceased came by his 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 post-HRA test (a Middleton Inquest).

The High Court found that an Inquest into a pre-HRA death did not have to be Article 2 compliant given the McKerr judgment of the House of Lords (In re McKerr [2004] 1 WLR 807). The High Court concluded:

“... I therefore conclude that the [HRA] does not require a Coroner now investigating a death which occurred before the coming into force of the [HRA] 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.”

In addition, the Coroner had retained and properly applied the correct Jamieson requirements. Having noted the considerable amount of evidence obtained by the Coroner, the High Court considered that 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’s speech closing the Inquest 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.”

(b) The Court of Appeal

Leave to appeal to the Court of Appeal was granted, the single judge noting that an intervening judgment of the Court of Appeal was in the applicant’s favour (R.(Hurst) v London Northern District Coroner [2005] EWCA Civ 890). The applicant was legally aided and represented.

The appeal was therefore stayed 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 and confirming 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 pre-dated the entry into force of the HRA even if the Inquest took place thereafter. Lord Brown approved the judgment of the High Court in the present applicant’s case.

Accordingly, on 6 April 2007 Counsel advised he applicant that her appeal had no prospects of success and should be withdrawn. On 10 May 2007 the Court of Appeal dismissed the appeal on a consent basis.

5. Civil Proceedings concerning the arrest warrant

On 2 March 2003 the applicant issued civil proceedings for damages against a number of respondents, including the Greater London Magistrates’ Court Authority, alleging negligence and false imprisonment as regards the arrest and detention of Kelly Pearson on the basis of an unlawful warrant. The case was stayed pending the above-described judicial review proceedings. Legal aid was discharged in 2004 and the applicant acted in person when the case was re-activated thereafter.

On 9 May 2008 the Greater London Magistrates’ Court Authority agreed to compensate the applicant in the sum of 8,000 pounds sterling (“GBP”) and for previously incurred legal costs in the sum of GBP 12,000.

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 2000.

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 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 has power to award damages under section 8 of the HRA.

2. Coroners and Inquests: pre-HRA

Section 8(1) of the Coroners Act 1988 (“the 1988 Act”) 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.

Section 11(5)(b) of the 1988 Act outlines the content of the Inquisition Form (the document completed by the Inquest jury at the end of the evidence) as follows:

“(i) who the deceased was; and

(ii) how, when and where the deceased came by his death; ...”

Rule 36 of the Coroners Rules 1984 (“the 1984 Rules”) 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 42 provides that no verdict shall appear to determine any question of criminal or civil liability on the part of a named person.

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 ... . 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 concerning the role and function of an Inquest as a fact-finding inquiry concerning a death pre-dating the HRA (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”:

“... 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 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.”

3. Coroners and Inquests: 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. This would be applicable to cases where it was plausibly alleged that unjustified lethal force had been used by agents of the State as well as in cases where it was alleged that the State had breached its positive duty to take reasonable steps to safeguard the lives of individuals. In this latter respect, the House of Lords noted that:

“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.

Lord Bingham therefore made the following observation as to how those Rules would henceforth be applied:

“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.”

On the same day (11 March 2004) the House of Lords gave judgment in In re McKerr ([2004] 1 WLR 807). 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 Article 2 inquiry into a fatal shooting did not apply to a death which pre-dated the entry into force of the HRA.

Further to the delivery of this Court’s judgment in Šilih v. Slovenia ([GC], no. 71463/01, 9 April 2009), the Supreme Court accepted that an Inquest compliant with Article 2 should be held into the use of lethal force which took place prior to the entry into force of the HRA (McCaughey and Another, Re Application for Judicial Review [2011] UKSC 20). Lady Hale did not consider that this required the re-opening of an Inquest that had already taken place, unless there was important new material.

4. Civil proceedings against public authorities: pre-HRA

The Court refers to the Relevant Domestic Law and Practice outlined in its judgment in Osman v. the United Kingdom (28 October 1998, §§ 89-97, Reports of Judgments and Decisions 1998 VIII) and in Z and Others v. the United Kingdom ([GC], no. 29392/95, §§ 57-65), ECHR 2001 V). It would add as follows.

(a) Against the police

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) and is also described in the judgment of this Court in its above-cited Osman judgment.

The public policy constraints on recognising a duty of care by public authorities were further considered 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 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. However, the underlying refusal in Hill’s case to recognise a duty of care when the police merely exercise their public functions was upheld. The judgments of Lord Steyn and Lord Nicholls recognised, however, that a duty of care would be held to exist in exceptional cases.

Since the Hill case, a number of cases have exhibited a sufficient degree of special relationship to displace the public policy consideration preventing 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 Q.B. 283).

(b) Against a local authority

There is a parallel common law line of authority concerning the duty of care of local authorities. It is authoritatively expressed in the case of X and Others v. Bedfordshire County Council ([1995] 3 All England Law Reports 353 and described in the above-cited Z and Others v. the United Kingdom judgment), where 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. Two later significant judgments found the local authority to owe a duty of care, including to parents, as regards children placed by, or in the care of, a local authority (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).

5. Civil proceedings against public authorities: post-HRA

The Court of Appeal judgment in the case of Van Colle ν. Chief Constable of Hertfordshire ([2007] 1 WLR 1821) concerned a death (the killing of a witness in a criminal prosecution) which post-dated the entry into force of the HRA. The applicant’s claim under section 7 of the HRA, for a breach of Article 2 of the Convention, was upheld.

In so doing, the Court of Appeal analysed the differences between that action under section 7 of the HRA and common law negligence, the Court of Appeal observing that the claimant would not have succeeded if the claim had been 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 differences between the common law action and an action under section 7 of the HRA (of a breach of Article 2), the Court of Appeal noted that the public policy concerns about finite police resources were acknowledged in the Convention case-law, 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:

“.. in [Osman v. the United Kingdom] 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.”

The House of Lords ([2008] UKHL 50) later 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.

The parallel appeal before the House of Lords decided at the same time (Smith (FC) v. Chief Constable of Sussex Police [2008] UKHL 50) concerned a claim under the common law of negligence only. The House of Lords confirmed the “robust” approach of the above-cited Brooks judgment and explicitly contrasted that with the remedy available under the HRA.

6. Relevant statutory provisions

The Law Reform (Miscellaneous) Provisions Act 1934 (“the 1934 Act”) provides for the survival of causes of action for the benefit of the deceased’s personal estate. The relevant part of section 1(1) provides:

“Subject to the provisions of this section, on the death of any person after the commencement of this Act all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate.”

This enables recovery on behalf of the estate of damages for losses suffered by the deceased before death, including non-pecuniary damages for pain and suffering between the infliction of injury and death. Where death is instantaneous, or where it cannot be proved that the deceased experienced pain and suffering before death, damages are not recoverable under the 1934 Act (the only recoverable amount being funeral expenses).

The Fatal Accidents Act 1976 (“1976 Act") confers a right of action for a wrongful act causing death. Section 1(1) provides:

“If death is caused by any wrongful act, neglect or default which is such as would (if death had not ensued) have entitled the person injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured.”

The statutory right of action is reserved to the deceased’s dependants (parents are not considered dependants) and allows the recovery of their pecuniary loss. If there are no dependants, no pecuniary loss is recoverable. Bereavement damages (fixed at GBP 7,500) are available to parents if the deceased child was under 18 years of age. Funeral expenses are recoverable. English law does not recognise a tort of wrongful death.

THE LAW

A. The complaint under Article 2 of the Convention

The applicant complained that, because her daughter’s death pre-dated the entry into force of the HRA, the “Jamieson” Inquest which was held did not provide an investigation compliant with Article 2 of the Convention. That Article, in so far as relevant, reads as follows:

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. ...

1. Timeliness and exhaustion of domestic remedies

As to whether the application was introduced on a timely basis, the Court recalls that, in her domestic proceedings, the applicant argued that the scope of the Inquest should have been broader (namely, a Middleton Inquest) even if her daughter’s death pre-dated the entry into force of the HRA. That issue had become uncertain in domestic law having regard to the Court of Appeal judgment in Hurst which favoured the applicant (paragraph 27 above) and her proceedings were therefore adjourned pending the House of Lords’ judgment in the Hurst case. Once the latter judgment had been delivered, ruling that there was no right to a Middleton Inquest for a pre-HRA death even if the Inquest took place after the entry into force of the HRA, it became evident that, at that point, her action stood no chance of success. She therefore reasonably consented to its dismissal by the Court of Appeal (10 May 2007) and she introduced her application with this Court within six months thereof. The Court does not consider that the delivery in May 2011 by the Supreme Court of its judgment in the McCaughey case, in response to this Court’s judgment in Šilih v. Slovenia (both cases cited at paragraph 43 above), is relevant for the timeliness of the introduction of the present application. In such circumstances, the Court considers that the applicant has complied with the six-month time-limit contained in Article 35 § 1 of the Convention.

The Government maintained that the applicant had failed to exhaust all effective domestic remedies available to her and the applicant contested this assertion. The Court does not consider that it is necessary to decide this point since, in any event, the Court has found the complaint to be manifestly ill-founded for the reasons detailed below.

2. Merits

(a) The parties’ submissions

The Government underlined that, where the alleged breach of Article 2 was non-intentional, the procedural duty under Article 2 could be satisfied by a combination of remedies including civil, administrative or disciplinary.

The Government maintained, in the first place, that the Inquest constituted an effective means of establishing the cause of death and any liability of State agents. This Court had already found that, in certain cases, Jamieson Inquests could satisfy the procedural requirements of Article 2. The present Inquest was independent, public and the applicant was represented. The Government relied on the Coroner’s directions, on the breadth of the evidence heard at the Inquest and on the summing up of the Coroner. They argued that the jury verdict established the cause of death: had the jury considered otherwise, they would have returned an open verdict. The Coroner accepted that the warrant was erroneous and that this had led to Kelly Pearson’s arrest, detention and release in London but he correctly found that error to be too remote from the circumstances of the death to require, under domestic law, further investigation at the Inquest. Equally, any link between that error and Kelly Pearson’s death was too tenuous to give rise to accountability under Article 2. Accordingly, the core facts leading to Kelly Pearson’s death were examined at a public Inquest in which the applicant participated.

Moreover, while civil or criminal liability could not be defined by the Inquest, there were other available relevant investigations and remedies. In so far as the applicant suggested that there had been insufficient investigation of how Kelly Pearson was wrongfully arrested because of the erroneous arrest warrant, she could have complained to the police, the Police Complaints Authority and/or to the Court Service requesting an investigation and disciplinary proceedings and/or taken proceedings for false imprisonment. As a person in custody, the police owed her a duty of care so she could have taken civil negligence proceedings against the police for damages and funeral expenses under the Law Reform (Miscellaneous Provisions) Act 1934 (“the 1934 Act”). If she considered there had been medical negligence, she could have taken civil proceedings for negligence against relevant medical personnel also under the 1934 Act. If she considered that the other professionals (probation officer, doctors, solicitors, health service professionals) were negligent, she could have complained to the relevant professional body and requested disciplinary action. If she considered that anyone had acted criminally, the applicant could have requested the police to conduct a criminal investigation. The Government argued that the applicant had not substantiated that she had complained to the police, the IPCC or the Greater London Magistrates’ Court Authority.

The applicant maintained that there had been a breach of the procedural obligations of Article 2 of the Convention because there had been no adequate investigation into her daughter’s death, in particular because the pre-HRA Inquest did not inquire into four matters which she considered causative of her daughter’s death: errors in relation to the warrant and the Police National Computer; record-keeping in relation to Kelly Pearson’s custody as well as her assessment and treatment whilst in custody (5-9 November 1999); support given to her in the magistrates’ court; and support and treatment she was able to access when she left court.

An Inquest would be the method by which the investigative requirements of Article 2 would be most frequently discharged but, since her daughter died before the entry into force of the HRA, a Jamieson Inquest was held. However, it was accepted domestically (including in her proceedings before the High Court) that a Jamieson Inquest could not satisfy the procedural requirements of Article 2 because it was confined to examining “how ... the deceased met her death” (overdose). The present Inquest did not therefore address the above-noted four issues whereas the more developed Middleton model would have. Two domestic judgments, in cases not dissimilar to hers, had required the holding of a Middleton Inquest even where civil, criminal, disciplinary proceedings and internal inquiries had already taken place where the death post-dated the HRA (R (on the application of Platts) v. HM Coroner for South Yorkshire (East District) (2008) F.WHC 2502 (Admin) and Moss v. HM Coroner for the North and South Districts of Durham and Darlington [2008] EWHC 2940 (Admin)). Indeed, she repeated the finding of Lord Rodger in R(L) v. the Secretary of State for the Home Department ([2009] 1 AC 588, at § 70) to the effect that the existence of the right to bring civil proceedings did not satisfy the procedural requirements of Article 2 of the Convention.

As to the other means of investigation, there was no real prospect of criminal proceedings. She had pursued civil proceedings but they were weak against any individual body especially given the restrictive law on false imprisonment and on negligence (police officers owed no duty of care to a suspect in the investigation of crime). In any event, the applicant’s public funding had been withdrawn and, with an action against six public bodies, she had no option but to settle and no investigation was ever carried out. Moreover, she could not have been expected to bring a mixture of small claims to ensure a full investigation, including the establishment of accountability, in a case concerning the responsibility and coordination of various State agencies.

The applicant also claimed to have made various complaints to a number of bodies (see paragraph 21 above).

(b) The Court’s assessment

The Court recalls that, where lives have been lost in circumstances potentially engaging the responsibility of the State, Article 2 entails a duty for the State to ensure, by all means at its disposal, an adequate investigative response, judicial or otherwise. The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability (Calvelli and Ciglio v. Italy [GC], no. 32967/96, ECHR 2002 I, § 49; Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 69, ECHR 2002 II; Mastromatteo v. Italy [GC], no. 37703/97, § 89, ECHR 2002 VIII; and Öneryıldız v. Turkey [GC], no. 48939/99, § 91, ECHR 2004 XII).

The form of investigation required to achieve these purposes will vary according to the circumstances of the particular case.

An Inquest is the method by which the investigative obligation under Article 2 is most frequently discharged. A Jamieson Inquest, held in relation to a death which pre-dated the entry into force of the HRA, has been found, having regard to the particular facts of certain cases, to constitute the, or one of the, effective means of satisfying the investigative requirement of Article 2 of the Convention (McCann and Others v. the United Kingdom, 27 September 1995, Series A no. 324; Douglas-Williams v. the United Kingdom (dec.), no. 56413/00, 8 January 2002; Younger v. the United Kingdom (dec.), no. 57420/00, ECHR, 7 January 2003; Rowley v. the United Kingdom (dec.) no. 31914/03, 22 February 2005; and Bailey v. the United Kingdom, (dec.) no. 39953/07, 19 January 2010). It is true that a Jamieson Inquest was limited to a determination of “how ... the deceased came by his death” (section 11(5)(b)(ii) of the 1988 Act and Rule 36 of the 1984 Rules) as those provisions were interpreted prior to the entry into force of the HRA. Nevertheless, that Inquest could examine “acts or omissions directly responsible for the death” including a lack of vigilance or “neglect” (the Jamieson and Middleton judgments, cited at paragraphs 39 and 41 above).

It is further recalled that, if the infringement of the right to life or to personal integrity was not caused intentionally, the obligation imposed by Article 2 to set up an effective judicial system does not necessarily require the provision of a criminal law remedy. In the case of deaths following a decision to release prisoners or through alleged medical negligence (whether in the public or private sector), the Court has found that that obligation may be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any civil liability to be established and appropriate civil redress to be obtained, such as an order for damages and for the publication of the decision, to be obtained, together with the additional possibility of disciplinary measures (Erikson v. Italy (dec.), no. 37900/97, 26 October 1999; Powell v. the United Kingdom (dec.), no. 45305/99, ECHR 2000-V; as well as the above-cited cases of Calvelli and Ciglio v. Italy, § 51; Mastromatteo v. Italy, at § 90; and Rowley v. United Kingdom).

Finally, the essential principle is that the key facts should be brought out for public scrutiny and that the procedures provide for effective accountability. It cannot be said, as the applicant suggested, that there should be one unified procedure satisfying all requirements: the aims of fact-finding and accountability may be carried out by or shared between several authorities, as long as the various procedures provide for the necessary safeguards in an accessible and effective manner (the above-cited Rowley v. the United Kingdom decision).

The Court has, in the first place, examined the scope of the investigative obligation which arises in the present case. The applicant considered that the investigation should have examined a series of issues (paragraph 63 above). The first issue concerned the accepted erroneous failure to cancel the warrant on the basis of which Kelly Pearson was arrested and transferred to London. However, it is recalled that “a mere condition sine qua non does not suffice to engage the responsibility of the State under the Convention” (Mastromatteo v. Italy, § 74 where the applicant’s son was murdered by prisoners who had been provisionally released by the prison authorities). Accordingly, even if it could be said that but for her erroneous arrest Kelly Pearson would not have later died in London, this would not necessarily be sufficient to engage the responsibility of the State under that Article. However, the Court does not have to decide whether the link between the erroneous arrest warrant and Kelly Pearson’s death from a drug overdose was too remote to engage the responsibility of the State under Article 2 for Kelly Pearson’s death (Koseva v. Bulgaria, (dec.), no. 6414/02, 22 June 2010) since, in any event, the applicant took and settled proceedings (paragraph 31 above) which proceedings could have led to an enquiry into the circumstances leading to the erroneous arrest and established any liability therefor.

As to the other matters to which the Article 2 investigative obligation applies in the present case, the Court notes that, in contrast to the case of R(L) v. the Secretary of State for the Home Department on which the applicant relied, the applicant did not die in police custody but some time after her release, as a result of taking a self-administered overdose of methadone. The Court considers that the State’s responsibility under Article 2 of the Convention can only be engaged as regards Kelly Pearson’s release by the relevant authorities on 9 November and as regards her subsequent treatment on 10 November 1999 before her death (Dodov v. Bulgaria, no. 59548/00, §§ 69-71, ECHR 2008 ...; and Mastromatteo v. Italy, §§ 70 and 74). The Court has consequently examined whether the State complied with its obligation to provide an investigation into such release and treatment which was compliant with Article 2 of the Convention.

In assessing compliance with this investigative obligation, the Court has had regard, in the first place, to the conduct of the Inquest in the present case. It recalls that, while the scope of a Middleton Inquest would have been broader had the applicant’s daughter’s death post-dated the entry into force of the HRA (as in, for example, the above-cited case of Platts v. HM Coroner for South Yorkshire (East District) on which the applicant relied), the essential question for the Court is to what extent the Jamieson Inquest held in the particular circumstances of the present case could have ensured compliance with the Article 2 investigative requirements (Bubbins v. the United Kingdom, no. 50196/99, § 164, ECHR 2005 II (extracts)). The present Inquest heard substantial evidence concerning the events leading to the applicant’s daughter’s death from a drug overdose, including from the applicant, the PCO, the FME, the solicitor and the probation officer who advised her at the magistrates’ court, the project worker at the Day Centre, the doctor at the NHS Medical Centre, the police officer called to attend when she collapsed in the street and the pathologist who conducted the post-mortem examination. Reports were also read from Kelly Pearson’s GP, a community psychiatric nurse and the consultant psychiatrist, all of whom had treated Kelly Pearson when living in West Yorkshire. That evidence was summed up by the Coroner to the jury and, in doing so, the Coroner considered that there was nothing to suggest that any of the professionals had done anything other than act in good faith and professionally in assisting the applicant. Had the jury considered that there was insufficient evidence to return a verdict of death by misadventure, for example, had the jury considered that the evidence did not fully disclose the means whereby the cause of death arose or that there had been “neglect”, within the meaning of that term as interpreted in the above-cited Jamieson case, they could have returned an open verdict. However, the jury returned a verdict of “death by misadventure”.

The Court considers therefore that, on the particular facts of the present case, the Inquest ensured that an independent tribunal subjected the relevant acts and decisions of the relevant State authorities who had had contact with Kelly Pearson on 9 and 10 November to a thorough review and exposed those facts to public scrutiny, a process in which the applicant was present and legally represented.

However, the Inquest could not fulfil the accountability objective of the procedural obligation since it was prohibited from establishing any individual liability (section 42 of the 1988 Act). Having regard to the facts of the present case and to the applicant’s reliance on a failure to establish any responsibility of the authorities, the Court considers that the availability of civil negligence proceedings, which could further elucidate relevant facts and establish any civil liability, were relevant to the fulfilment of the procedural obligations of Article 2 of the Convention (see the principles outlined at paragraphs 67-71 above).

In particular, to the extent that the applicant maintained that the competent authorities detaining Kelly Pearson (notably, the Court Police Liaison Officer) breached their duty of care in releasing her without further protective steps, the applicant has not demonstrated that she could not have taken civil proceedings in negligence against those public authorities on behalf of her daughter’s estate by arguing that there was a sufficient degree of special relationship to displace the public policy consideration against the recognition of a duty of care (see paragraphs 44-48 above and, a contrario, E. and Others v. the United Kingdom, no. 33218/96, §§ 73-115, 26 November 2002). The applicant’s contention that police officers did not owe a duty of care to a suspect in the investigation of crime is not relevant. She has equally failed to show why she could not have taken negligence proceedings as regards the acts or inaction of the probation officer who advised her at the magistrates’ court or against the GP in the NHS medical centre who treated her in London. Having regard to the circumstances leading to her death, these causes of action could arguably have survived her death pursuant to the 1934 Act (see paragraph 55 above). While the applicant referred to a prior withdrawal of legal aid, this concerned the substantively different proceedings in respect of the erroneous arrest warrant.

Moreover, having regard to the facts of the present case, the Court considers that the possibility of disciplinary measures is also relevant to the fulfilment of Article 2 procedural objectives in the present case (see paragraph 70 above). The Court notes that the investigation was supplemented by the additional investigations and reports of the WYPA, the LPA and the relevant Ombudsman, with which processes the applicant was involved and which reports furnished additional information, notably as regards the work of the probation officer at the magistrates’ court on 9 November 1999. In addition, the Court notes that the applicant has not substantiated her references (see paragraph 21 above) to complaints to the relevant professional bodies and, in particular, as regards any relevant acts or inaction of the relevant police officers (to the Police Complaints Authority, later the IPCC), of the solicitors (to the Law Society) or of the medical/health professionals (to the General Medical Council or the Independent Health Service and Parliamentary Ombudsman).

The foregoing considerations are sufficient to enable the Court to conclude that, on the particular facts of the present case, there has not been a failure to comply with any procedural obligation under Article 2 of the Convention and that this complaint must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

B. The complaint under Article 13 of the Convention

The applicant also complained that the limits on pre-HRA Inquests were such that she had no effective remedy within the meaning of Article 13 of the Convention in conjunction with Article 2, whereby she could have established the responsibility of the relevant State agencies and recovered damages. The Government disputed this complaint. Article 13 provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”.

According to the Court’s case-law, Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, § 52).

The Court has found above that the applicant’s complaint under Article 2 is manifestly ill-founded. For similar reasons, she did not have an “arguable claim” and Article 13 is therefore inapplicable to her case (the above-cited decisions against the United Kingdom in Powell and Rowley). This part of the application is thus also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

Lawrence Early Lech Garlicki
Registrar President