COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN’S BENCH DIVISION
(Mr Justice Hooper)
(Mr Justice Stanley Burnton)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LAWS
LORD JUSTICE DYSON
| THE QUEEN on the APPLICATION OF JEAN MIDDLETON|
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HM CORONER FOR WEST SOMERSETSHIRE
|1st Respondent |
|2. THE QUEEN on the APPLICATION OF AMIN|
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SECRETARY OF STATE FOR THE HOME DEPARTMENT
HM CORONER OF WEST LONDON
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Ben Emmerson QC and Mr Peter Weatherby (instructed by Howells of Sheffield, S3 8NL for the 1st Respondent
Mr Jonathan Crow, Mr Rabinder Singh and Mr Martin Chamberlain (instructed by the Treasury Solicitor) for the 1st and 2nd Appellants
(AS APPROVED BY THE COURT)
Crown Copyright ©
“The obligation to protect the right to life under this provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alios, agents of the State.”
“By reason of the restriction on the verdict at the Inquest into the death of Colin Campbell Middleton held on 8/10th days of October 2000, that Inquest was inadequate to meet the procedural obligation in Article 2 of the ECHR as set out in Schedule I to the Human Rights Act 1998”.
Imtiaz Amin – the Facts
“Dear Mr and Mrs Mubarek,
I was extremely concerned to hear about the death of your son. My deepest sympathies are with you and your family at this very difficult time. I would like to repeat the most important thing I said to you when we met. You had a right to expect us to look after Zahid safely and we have failed. I am very, very sorry. What I am determined to do now is to ensure we are completely open with you. If mistakes have been made we shall not conceal them from you.
When we met I also undertook to do what I could to help you. I would like to repeat that offer and to outline what action I have already taken and what action I propose to take. I would like as far as it is possible and to the extent that you wish, to involve you and keep you informed.
To ensure we keep in contact with you in the most effective way, I suggest that Peter Windsor, Feltham’s deputy or whom you met last week, is your main point of contact. He can be contacted at Feltham (telephone 0208 890 0061 extension 253). However, if you would prefer not to contact someone at Feltham, then I suggest you contact William Payne, my Staff Officer, through the telephone number at the top of this letter. Additionally, you already have contact with Maqsood Ahmed my Muslim adviser. The police, who have begun their formal investigation, will liaise with you separately.
While the police are investigating the specific circumstances in which Zahid was so seriously assaulted and its consequence, I have set up an internal inquiry which will look at the wider issues. The person leading this internal inquiry is Ted Butt. He would like to meet you to explain how he intends to proceed. However, he will only meet you if you think that would be helpful to you. If you would like to meet him then I suggest you contact him through Peter Windsor. As I said to you when we met, I want to be open and honest with you. Accordingly, it is my intention to give you a copy of the inquiry report.
You might also find it helpful to visit Feltham. Peter Windsor would be very willing to enable you to talk to staff who worked on the unit where Zahid was held. You may wish to ask questions about how Feltham operates, particularly at night for example, and to see parts of the establishment. Peter also has the possessions Zahid had with him in Feltham and, depending upon your wishes, is ready to hand these to you when and where you think most appropriate.
If there is anything else you think the Prison Service could do to help you and your family, please do not hesitate to let me know.
“5. The circumstances leading to the murder of Zahid Mubarek in HM YOI Feltham, and any contributing act or omission on the part of the Prison Service”.
“I cannot apportion all the blame to the management team at Feltham at the time of this investigation. Management oversight appears to have been poor for many years, and it would have been impossible for the present team to have dealt with all the deficiencies in such a short time. Therefore I am unable to recommend disciplinary action against any single individual member of staff”.
“Zahid Mubarek’s death was a tragic event and the Prison Service have admitted full responsibility for it from the start. The Director General met Zahid Mubarek’s father at Charing Cross hospital and has apologised to the family in person and in writing. An internal Prison Service report examined the circumstances surrounding the death in detail. It was completed in September 2000 and was shown to the Mubarek family. This report made 26 procedural recommendations in areas such as screening on reception; the availability and scrutiny of medical records; Protection from Harassment procedures; policy and procedures for reading and stopping mail; the availability of security information files from previous establishments; security, reception and Duty Governor training; reception boards; and the searching strategy. All the major recommendations from the Prison Service investigation are being implemented at Feltham. Most are already in place, and those that are taking longer are being implemented to clear deadlines. Probably the most important is the proposal to introduce a cell-sharing risk assessment across the prison estate. This is being piloted at Feltham.
An inquest into the death was opened by the Coroner for West London. As you will know, the statutory function of an inquest is to ascertain who the deceased was, and how, when and where he came by his death. In this case the Coroner adjourned the proceedings, as required under section 16 of the Coroners Act 1988, pending the outcome of the trial of Robert Stewart for the murder of Zahid Mubarek. The circumstances of the death were thoroughly examined during the trial, which resulted in Stewart’s conviction in November 2000. Following the trial, the Coroner decided that there was not sufficient cause to resume the inquest. That is a matter for her, but she will have taken into account the extent to which the facts about the death had emerged during the course of the trial.
After the trial, the Mubarek family and their representatives met Paul Boateng, who was then the Prisons Minister, on 2 November and 13 November 2000. He emphasised our determination to tackle the systematic failures that had resulted in Zahid Mubarek’s death. We recognised at that stage that this would require the involvement of an external agency. For that reason we welcomed the decision of the Commission for Racial Equality to mount an investigation into racism in the Prison Service with particular reference to the events at Feltham leading up to Zahid Mubarek’s death. We also welcomed the appointment of Ray Singh, both a district judge and a CRE commissioner, as the chairman of the investigation team. The Prison Service has co-operated fully with the CRE investigation, which includes a special team looking at Feltham.
The CRE investigating team decided to hold a public hearing during which both the Prisons Minister and the Director General of the Prison Service would be cross-examined by Counsel for the investigation. I understand that this will now take place in September and that the CRE have offered the Mubarek family a meeting with Counsel at which they can raise topics that they would like to be covered in the cross-examination. I also understand that the investigation should be completed in November. I shall pay close attention to the recommendations in the report and it will, of course, be available to the Mubarek family.
In view of all that has been done to investigate the circumstances of Zahid Mubarek’s death and to learn the lessons from it, I do not believe that a separate public inquiry would add anything of substance or that it would be in the public interest to hold one.”
“On the facts known to the Secretary of State (including the fact that the inquest would not be resumed), an independent public investigation with the family legally represented, provided with the relevant material and able to cross-examine the principal witnesses, must be held to satisfy the obligations imposed by Article 2 of the European Convention on Human Rights”.
Jean Middleton – the Facts
“(a) expressed concern that a form F2052SH had been closed by two officers who had no prior knowledge of Mr Middleton; and
(b) expressed their belief that a letter of 11 January 1999 written by him “contained sufficient information to warrant an F2052SH being opened”.
Amin – the Issues in the Appeal Confronted
(1) The judge was wrong to determine the judicial review challenge against the Secretary of State before first considering the claims against the Coroner and the CRE.
(2) The adjectival or procedural obligation to investigate a death, arising under ECHR Article 2, was not triggered on the facts of the case.
(3) The judge fell into error in his approach to the scope of the procedural obligation. He should not have concluded that an investigation will not satisfy Article 2 unless two independent and cumulative requirements are fulfilled, namely that (a) there is a sufficient element of public scrutiny and (b) the next of kin are involved to an appropriate extent.
(4) The judge should have held that the procedural obligation had been discharged on the facts of the case.
Mr Crow’s position at the hearing was that if he succeeded on any one of these arguments the appeal must be allowed. (2), (3) and (4) respectively arise only to the extent that their predecessors fail. However (2) has been conceded by Mr Crow in a written submission put in (at the court’s invitation) to address the reasoning in a judgment of the Court of Human Rights which was promulgated after the hearing before us. We shall explain the position more fully in due course, but we should say at once that Mr Crow’s concession is in our judgment entirely correct. Herewith it remains convenient to deal with all four points in the order in which they were presented as we have set it out above.
“2(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.
(2) Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.
3. No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
13. Everyone whose rights and freedoms as set forth in this 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.”
Secondly, it is useful at this stage to state in outline at least what is the nature of the primary obligations of the State which arise under Article 2 on its face. Mr Crow for the appellant submitted that the substance of Article 2 contains three elements as follows:
(1) Each Contracting State is required to put in place a legal regime for the protection of the right to life. That is the consequence of the opening words, “Everyone's right to life shall be protected by law”. In England and Wales, this requirement is satisfied by the criminal law of murder and manslaughter (and no doubt the statutory offences relating to fatal road traffic incidents), and by the civil law of negligence.
(2) The State is itself precluded from taking life intentionally, save in a case falling within Article 2(2).
(3) In addition the State has a positive duty to take steps (“operational measures” in Mr Crow’s phrase) to protect life in cases where its servants are or ought reasonably to be aware that a particular individual who is in the State’s care – being a prisoner is the plainest instance – is at immediate risk of death or serious injury. This positive obligation is engaged in these two cases.
“115. The court notes that the first sentence of Article 2(1) enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction. It is common ground that the State’s obligation in this respect extends beyond its primary duty to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions. It is thus accepted by those appearing before the Court that Article 2 of the Convention may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual…
116… In the opinion of the Court where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of their above-mentioned duty to prevent and suppress offences against the person, it must be established to its satisfaction that the authorities knew or ought to have known at the time of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. The Court does not accept the Government’s view that the failure to perceive the risk to life in the circumstances known at the time or to take preventive measures to avoid that risk must be tantamount to gross negligence or wilful disregard of the duty to protect life… [I]t is sufficient for an applicant to show that the authorities did not do all that could reasonably be expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge. This is a question which can only be answered in the light of all the circumstances of any particular case.”
This treatment of Article 2 entirely supports Mr Crow’s tripartite formulation, which in our judgment may be taken as a correct statement of the law.
(1) Was the judge wrong to determine the judicial review challenge against the Secretary of State before first considering the claims against the Coroner and the CRE?
(2) Was the procedural obligation to investigate triggered on the facts of the case?
“… a general legal prohibition of arbitrary killing by the agents of the State would be ineffective, in practice, if there existed no procedure for reviewing the lawfulness of the use of lethal force by State authorities. The obligation to protect the right to life under this provision… requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alios, agents of the State.”
This formula, including the tell-tale Latinism inter alios, is repeated in a number of the decisions. Gulec v Turkey (54/1997/838/1044) paragraph 77 and Ergi v Turkey (66/1997/850/1057) paragraph 82 are examples. And there is other learning, such as Erikson (App. No. 37900/97) and Salman (App. No. 21986/93, 27/6/00) which we would have cited had it been necessary to go deeper into this point.
(3) What is the required scope of the procedural investigation?
“103. In the light of the importance of the protection afforded by Article 2, the Court must subject deprivations of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as for example in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries and death which occur. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation…
105. The obligation to protect the right to life under Article 2 of the Convention… also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force... 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 for deaths occurring under their responsibility. What form of investigation will achieve those purposes may vary in different circumstances. However, whatever mode is employed, the authorities must act of their own motion, once the matter has come to their attention. They cannot leave it to the initiative of the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures… [our emphasis]
106. For an investigation into alleged unlawful killing by State agents to be effective, it may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events… This means not only a lack of hierarchical or institutional connection but also a practical independence…
107. The investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances… and to the identification and punishment of those responsible… This is not an obligation of result, but of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including inter alia eye witness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death… Any deficiency in the investigation which undermines its ability to establish the cause of death or the person or persons responsible will risk falling foul of this standard.
109… [T]here must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as theory. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next-of-kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests…
i) Civil proceedings
141… [C]ivil proceedings would provide a judicial fact-finding forum, with the attendant safeguards and the ability to reach findings of unlawfulness, with the possibility of damages. It is however a procedure undertaken on the initiative of the applicant, not the authorities, and it does not involve the identification or punishment of any alleged perpetrator. As such, it cannot be taken into account in the assessment of the State’s compliance with its procedural obligations under Article 2 of the Convention.
143. It is not for this Court to specify in any detail which procedures the authorities should adopt in providing for the proper examination of the circumstances of a killing by State agents. While reference has been made for example to the Scottish model of enquiry conducted by a judge of criminal jurisdiction, there is no reason to assume that this may be the only method available. Nor can it be said that there should be one unified procedure providing for all requirements. If the aims of fact finding, criminal investigation and prosecution are carried out or shared between several authorities, as in Northern Ireland, the Court considers that the requirements of Article 2 may nonetheless be satisfied if, while seeking to take into account other legitimate interests such as national security or the protection of material relevant to other investigations, they provide for the necessary safeguards in an accessible and effective manner…”
“109. The court has previously held that where a right with as fundamental an importance as the right to life or the prohibition against torture… is at stake, art 13 requires, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible, including effective access for the complainant to the investigation procedure… These cases however concerned alleged killings or infliction of treatment contrary to art 3 involving potential criminal responsibility on the part of security force officials. Where alleged failure by the authorities to protect persons from the acts of others is concerned, art 13 may not always require that the authorities undertake the responsibility for investigating the allegations….”
“… Given the fundamental importance of the right to the protection of life, Article 13 requires, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible for the deprivation of life, including effective access for the complainant to the investigation procedures…”
The court proceeded to indicate (paragraph 127) that it was “common ground” that the inquest did not provide a remedy for the determination of State liability or the provision of compensation, and there was a violation of Article 13. Lord Justice Sedley (sitting as the ad hoc British judge) delivered a concurring opinion in which he stated at paragraph 8 that what was required by way of remedy was “a proper and effective inquiry into responsibility for the death.”
“1. Articles 2 and 3 enshrine fundamental rights. When it is arguable that there has been a breach of either article, the State has an obligation to procure an effective official investigation.
2. The obligation to procure an effective official investigation arises by necessary implication in articles 2 and 3. Such investigation is required, in order to maximise future compliance with those articles.
3. There is no universal set of rules for the form which an effective official investigation must take. The form which the investigation takes will depend on the facts of the case and the procedure available in the particular State.
4. Where the victim has died and it is arguable that there has been a breach of article 2, the investigation should have the general features identified by the court in Jordan v United Kingdom at paragraphs 106 to 109.
5. The holding of an inquest may or may not satisfy the implied obligation to investigate arising under article 2. This depends upon the facts of the case and the course of events at the inquest.”
“The Court finds that the lack of power to compel witnesses and the private character of the proceedings from which the applicants were excluded save when they were giving evidence failed to comply with the requirements of Article 2 of the Convention to hold an effective investigation…”
It is, we consider, clear from paragraph 78 (which we need not set out) that the importance which the court attached to the absence of any power in the inquiry to compel witnesses was very closely linked to the refusal of two prison officers to give evidence. As regards the “private character” of the inquiry proceedings, the court said this:
“83. The Government argued that the publication of the report secured the requisite degree of public scrutiny. The Court has indicated that publicity of proceedings or the results may satisfy the requirements of Article 2, provided that in the circumstances of the case the degree of publicity secures the accountability in practice as well as theory of the State agents implicated in events. In the present case, where the deceased was a vulnerable individual who lost his life in a horrendous manner due to a series of failures by public bodies and servants who bore a responsibility to safeguard his welfare, the Court considers that the public interest attaching to the issues thrown up by the case were such as to call for the widest exposure possible. No reason has been put forward for holding the inquiry in private…
84. The applicants, parents of the deceased, were only able to attend three days of the Inquiry when they themselves were giving evidence. They were not represented and were unable to put any questions to witnesses, whether through their own counsel or, for example, through the Inquiry Panel. They had to wait until the publication of the final version of the Inquiry Report to discover the substance of the evidence about what had occurred. Given their close and personal concern with the subject-matter of the Inquiry, the Court finds that they cannot be regarded as having been involved in the procedure to the extent necessary to safeguard their interests.”
“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 for deaths occurring under their responsibility. What form of investigation will achieve those purposes may vary in different circumstances.”
“4. Where the victim has died and it is arguable that there has been a breach of article 2, the investigation should have the general features identified by the court in Jordan v United Kingdom at paragraphs 106 to 109.”
This might seem to suggest something of a universal formula for all investigations undertaken in fulfilment of Article 2, and to that extent we disagree with it. In fairness the judge had just indicated, in proposition (3), that “[t]here is no universal set of rules for the form which an effective official investigation must take”, and in our judgment that is entirely correct.
(4) Should the judge have held that the procedural obligation to investigate was in any event discharged on the facts of the case?
Middleton – the Issues in the Appeal Confronted
“Coroners and inquests are today regulated by the Coroners Act 1988. The duty to hold an inquest arises under section 8(1), which provides:
‘Where a Coroner is informed that the body of a person (‘the deceased’) is lying within his district and there is reasonable cause to suspect that the deceased – (a) has died a violent or an unnatural death; (b) has died a sudden death of which the cause is unknown; or (c) has died in prison or in such circumstances as to require an inquest under any other Act, then, whether the cause of death arose within his district or not, the Coroner shall as soon as practicable hold an inquest into the death of the deceased either with or, subject to subsection (3) below, without a jury.’
Section 8(3)(a) requires that the inquest be held with a jury where, as here, the death occurred in a prison.
Section 11 governs the proceedings at the inquest, providing, inter alia:
‘(3) In the case of an inquest held with a jury, the jury shall, after hearing the evidence – (a) give their verdict and certify it by an inquisition; . . . (5) An inquisition- (a) shall be in writing under the hand of the Coroner and, in the case of an inquest held with a jury, under the hands of the jurors who concur in the verdict; (b) shall 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; and (c) shall be in such form as the Lord Chancellor may by rules made by statutory instrument from time to time prescribe’.
The Coroners Rules 1984 provide, inter alia:
‘36 (1) The proceedings and evidence at an inquest shall be directed solely to ascertaining the following matters, namely – (a) who the deceased was; (b) how, when and where the deceased came by his death; (c) the particulars for the time being required by the Registration Acts to be registered concerning the death. (2) Neither the Coroner nor the jury shall express any opinion on any other matters.
40. No person shall be allowed to address the Coroner or the jury as to the facts.
41. Where the Coroner sits with a jury, he shall sum up the evidence to the jury and direct them as to the law before they consider their verdict and shall draw their attention to rules 36 (2) and 42.
42. No verdict shall be framed in such a way as to appear to determine any questions of – (a) criminal liability on the part of a named person, or (b) civil liability.
43. A Coroner who believes that action should be taken to prevent the recurrence of fatalities similar to that in respect of which the inquest is being held may announce at the inquest that he is reporting the matter in writing to the person or authority who may have power to take such action and he may report the matter accordingly.’
This long survey of the relevant statutory and judicial authority permits certain conclusions to be stated.
(1) An inquest is a fact-finding inquiry conducted by a Coroner, with or without a jury, to establish reliable answers to four important but limited factual questions. The first of these relates to the identity of the deceased, the second to the place of his death, the third to the time of death. In most cases these questions are not hard to answer but in a minority of cases the answer may be problematical. The fourth question, and that to which evidence and inquiry are most often and most closely directed, relates to how the deceased came by his death. Rule 36 requires that the proceedings and evidence shall be directed solely to ascertaining these matters and forbids any expression of opinion on any other matter.
(2) Both in section 11 (5) (b) (ii) of the Act of 1988 and in rule 36(1)(b) of the Rules of 1984, “how” is 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.
(3) It is not the function of a Coroner or his jury to determine, or appear to determine, any question of criminal or civil liability, to apportion guilt or attribute blame. This principle is expressed in rule 42 of the Rules of 1984. The rule does, however, treat criminal and civil liability differently: whereas a verdict must not be framed so as to appear to determine any question of criminal liability on the part of a named person, thereby legitimating a verdict of unlawful killing provided no one is named, the prohibition on returning a verdict so as to appear to determine any question of civil liability is unqualified, applying whether anyone is named or not.
(4) This prohibition in the Rules is fortified by considerations of fairness. Our law accords a defendant accused of crime or a party alleged to have committed a civil wrong certain safeguards rightly regarded as essential to the fairness of the proceedings, among them a clear statement in writing of the alleged wrongdoing, a right to call any relevant and admissible evidence and a right to address factual submissions to the tribunal of fact. These rights are not granted, and the last is expressly denied by the Rules, to a party whose conduct may be impugned by evidence given at an inquest.
(5) It may be accepted that in case of conflict the statutory duty to ascertain how the deceased came by his death must prevail over the prohibition in rule 42. But the scope for conflict is small. Rule 42 applies, and applies only, to the verdict. Plainly the Coroner and the jury may explore facts bearing on criminal and civil liability. But the verdict may not appear to determine any question of criminal liability on the part of a named person nor any question of civil liability.
(6) There can be no objection to a verdict which incorporates a brief, neutral, factual statement: “the deceased was drowned when his sailing dinghy capsized in heavy seas,” “the deceased was killed when his car was run down by an express train on a level crossing,” “the deceased died from crush injuries sustained when gates were opened at Hillsborough Stadium.” But such verdict must be factual, expressing no judgment or opinion, and it is not the jury's function to prepare detailed factual statements.
(7) Cases arise, usually involving the old, the infirm and the senile where the deceased contributes to his or her own death by a gross failure to take adequate nourishment or liquid, or to obtain basic medical attention, or to obtain adequate shelter or heating. In such a case it may be factually accurate and helpfully descriptive to State that self-neglect aggravated, or preferably contributed to, the primary cause of death. Rarely, if ever, can it be factually accurate or helpfully descriptive to regard self-neglect as the primary cause of death (that is, in the language of the cases, to adopt it as a free-standing verdict).
(8) 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.”
(9) 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. So it may be if it is the dependent person’s mental condition which obviously calls for medical attention (as it would, for example, if a mental nurse observed that a patient had a propensity to swallow razor blades and failed to report this propensity to a doctor, in a case where the patient had no intention to cause himself injury but did thereafter swallow razor blades with fatal results). In both cases the crucial consideration will be what the dependent person’s condition, whether physical or mental, appeared to be.
(10) As in the case of self-neglect, neglect can rarely, if ever, be an appropriate verdict on its own. It is difficult to think of facts on which there would not be a primary verdict other than neglect. But the notes to form 22 in the Rules of 1984, although in themselves of no binding force, are correct to recognise that neglect may contribute to a death from natural causes, industrial disease or drug abuse. Want of attention at birth, also mentioned in the notes, may itself be regarded as a form of neglect. A verdict that, for instance, “the deceased died from natural causes [or industrial disease, or drug abuse] to which neglect contributed” would seem perhaps more apt than a verdict that “the deceased died from natural causes [or industrial disease, or drug abuse] aggravated by neglect,” since “aggravated” in this context means “made worse”, and in truth the neglect probably did not make the fatal condition worse but sacrificed the opportunity to halt or cure it.
(11) Where it is established that the deceased took his own life, that must be the verdict. On such facts, as the applicant in the present case accepted, there is no room for a verdict of neglect (or, as he would have put it, lack of care). It is also inappropriate in such a case, as the applicant also accepted, to describe that cause of death as aggravated by neglect (or lack of care). On certain facts it could possibly be correct to hold that neglect contributed to that cause of death, but this finding would not be justified simply on the ground that the deceased was afforded an opportunity to take his own life even if it was careless (as that expression is used in common speech or in the law of negligence) to afford the deceased that opportunity. Such a finding would only be appropriate in a case where gross neglect was directly connected with the deceased’s suicide (for example, if a prison warder observed a prisoner m his cell preparing to hang a noose around his neck, but passed on without any attempt to intervene).
(12) Neither neglect nor self-neglect should ever form any part of any verdict unless a clear and direct causal connection is established between the conduct so described and the cause of death.
(13) It is for the Coroner alone to make reports with a view to preventing the recurrence of a fatality. That is the effect of rules 36(2) and 43.
(14) It is the duty of the Coroner as the public official responsible for the conduct of inquests, whether he is sitting with a jury or without, to ensure that the relevant facts are fully, fairly and fearlessly investigated. He is bound to recognise the acute public concern rightly aroused where deaths occur in custody. He must ensure that the relevant facts are exposed to public scrutiny, particularly if there is evidence of foul play, abuse or inhumanity. He fails in his duty if his investigation is superficial, slipshod or perfunctory. But the responsibility is his. He must set the bounds of the inquiry. He must rule on the procedure to be followed. His decisions, like those of any other judicial officer, must be respected unless and until they are varied or overruled.”
i) the interests of the victims and the public in being able to investigate the circumstances surrounding a death, particularly a death in prison and
ii) the interests of those who might be held responsible for the death of the deceased and
iii) the need to restrict the scope of the inquest in the interests of expedition, affordability and proportionality.
“128. It is also alleged that the inquest in this case is restricted in the scope of its examination. According to the case law of the national courts, the procedure is a fact-finding exercise and not a method of apportioning guilt. The Coroner is required to confine his investigation to the matters directly causative of the death and not to extend his inquiry into the broader circumstances. This was the standard applicable in the McCann inquest also and did not prevent examination of those aspects of the planning and conduct of the operation relevant to the killings of the three IRA suspects. The Court is not persuaded therefore that the approach taken by the domestic courts necessarily contradicts the requirements of Article 2. The domestic courts accept that an essential purpose of the inquest is to allay rumours and suspicions of how a death came about. The Court agrees that a detailed investigation into policy issues or alleged conspiracies may not be justifiable or necessary. Whether an inquest fails to address necessary factual issues will depend on the particular circumstances of the case. It has not been shown in the present application that the scope of the inquest as conducted so far has prevented any particular matters relevant to the death being examined.”
“1. The Respondent, in his submissions, equates the State’s responsibilities under Article 2 with those of the Coroner. In conducting an Inquest a Coroner is not in the same position as the State in terms of obligations under Article 2. An Inquest alone may or may not satisfy the State’s obligations to carry out an investigation under Article 2, with or without an adjectival finding of neglect. Whether it does or not will depend upon the particular circumstances of the individual case.
2. Submissions to the effect that the Coroners Act 1988 and the Coroners Rules 1984 must be re-interpreted to be Article 2 compliant are based upon the false premise that an Inquest is the only way in which the State can comply with its duties under Article 2. A re-interpretation is not necessary if it is accepted that the State’s obligations can be satisfied by the cumulative effect of a number of procedures, the Inquest being only one possible one.
3. We submit that it would be wrong in principle to hold that the Coroner must bear the residual responsibility for the State’s obligations under Article 2, in the event that all other possible procedures have been excluded or held to be ineffective to so comply with Article 2.
4. It is open to the Government to amend the legislation if the Government wishes to rely more extensively upon Inquests to satisfy the State’s obligations under Article 2, we submit that it is not appropriate for the Courts to make that decision.
5. In effect the Respondent’s submissions amount to an Appeal of Jamieson by the back door. “How” in s.11 (5)(c) of the Coroners Act 1988 and Rule 36(b) and “neglect” are open to a number of interpretations and is a question of semantics. The narrow interpretations in Jamieson have led, in practice, to inconsistent applications by Coroners, some of whom have applied a wider interpretation than Jamieson permits without challenge in the higher Courts. A number of Coroners are of the view that a more liberal interpretation than Jamieson permits is both practical and desirable. Whilst accepting that a more liberal interpretation would have the effect of making more Inquests Article 2 compliant as far as the State’s obligations are concerned, it is submitted that the Human Rights legislation does not make such a liberal interpretation compelling and binding on Coroners.
6. In the Coronial jurisdiction “neglect” has never been equated with the civil court’s concept of negligence which incorporates the concept of fault, it is the obverse of “self neglect”, and is concerned with the effect of particular circumstances on the deceased rather than an evaluation of the conduct of others. In so far as the Respondent contends for a finding of “responsibility” for lack of reasonable care, by a Coroner’s Court, this would change the fundamental purpose of the Inquest. An Inquest is a fact-finding procedure and its inquisitorial nature would be transformed into an adversarial one. In those circumstances both the Coroners Act and the Rules would require wholesale redrafting, for example, inter alia: Rule 40 prevents any person from addressing the Coroner or the jury as to the facts; Rule 42 prevents a verdict being framed in such a way as to determine any question of criminal liability on the part of a named individual and prevents determination of any question of civil liability; there are no statutory powers for compelling the production of documents prior to the Inquest hearing itself; nor for advance disclosure of documents to interested parties; the summoning of witnesses and sanctions for non-compliance are not comprehensively dealt with as in the civil courts; State funding for representation of the parties is not readily available. Significant breaches of Article 6 are likely to be alleged by those found at fault without such amendment. (Sic)”