COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT (MR JUSTICE TUCKER)
London, WC2A 2LL
B e f o r e :
LORD JUSTICE MUMMERY
LORD JUSTICE LATHAM
| Ms Helen SACKER||Appellant|
|- and -|
|HM Coroner for the County of West Yorkshire||Respondent|
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James Findlay (instructed by City of Wakefield MDC, Central Services Department) for the Respondent
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Justice Pill:
"That an Inquisition taken for our Sovereign Lady the Queen at Wakefield on the 14th day of August 2000 and by adjournment on the 9th, 10th, 11th and 12th of October 2001 before and by me David Hinchliff one of her Majesty's Coroners for the said County the following matters were found by a majority of 9 to 2. That the name is that of Sheena Dawn Lisa Nicola Marie Creamer, the injury of disease causing death was 1(a) hanging by ligature and (b) the time place and circumstances is that the deceased was a remand prisoner at Her Majesty's Prison New Hall. She was further remanded to Prison by Sheffield Magistrates' Court on 4th August 2000 and was admitted to the Medical Centre, she was moved to the Residential Wing cell C215 on 6th August 2000 where she was discovered hanging by a ligature by a Patrolling Officer. An ambulance took her to Pinderfields General Hospital where she was declared dead on arrival at 0400 hours on 7th August 2000 and the Jury's conclusion by majority is that Sheena killed herself … ."
"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."
"Just before I formally conclude this Inquest I intend now making an announcement pursuant to Rule 43 of the Coroner's Rules that it is my intention to write to the Prison Department and inform them as to my grave concerns regarding the Locum Medical Officer at New Hall Prison on this occasion not having a working knowledge of the Form 2052SH procedures. I regard the Form 2052SH as a vital tool in identifying those prisoners who are vulnerable and at risk of self harm or suicide and I take an extremely dim view of the fact that somebody in such an important position as a Medical Officer albeit a Locum on this occasion demonstrated such a scant understanding of what is such an important provision and therefore I shall write to the Head of the Prison Service pointing out my concerns pursuant to this Rule."
"At the conclusion of this inquest I made an announcement pursuant to Rule 43 of the Coroners' Rules 1984, that I would report the matter in writing to the person or authority who may have power to take such action to prevent the recurrence of fatalities similar to that in respect of which the inquest was being held, on the basis of my concerns regarding a locum medical officer serving New Hall Prison at that time. I heard evidence from Dr Leslie D Spivack, the said locum medical officer, who, in the course of his evidence, showed a lack of knowledge and understanding of the 2052SH procedures. Dr Spivack incorrectly completed this document and clearly stated that he did not fully understand the 2052SH system and documentation
It is a matter of grave concern to me that any medical officer working within the prison system should not understand such a vital component in preventing self harm and suicide to the inmate population.
I require an assurance from you that there will be adequate and appropriate training of all prison medical staff of the 2052SH system and procedures before they are allowed to practice within the prison service.
If you require a transcript of Dr Spivack's evidence, then this can be supplied.
I would be most grateful if my recommendations can be given serious consideration and I await your own observations."
"(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."
"No verdict shall be framed in such a way as to appear to determine any question of – (a) criminal liability on the part of a named person, or (b) civil liability."
"(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 as case, as the applicant also accepted, to describe that cause of death as aggravated by neglect (or lack or 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 in 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."
"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."
In Jordan v United Kingdom (2001) 11 BHRC 1, the ECHR stated at paragraph 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."
"What is required will vary with the circumstances. A credible accusation of murder or manslaughter by State agents will call for an investigation of the utmost rigour, conducted independently for all to see. An allegation of negligence leading to death in custody, though grave enough in all conscience, bears a different quality from a case where it is said the State has laid on lethal hands. The procedural obligation promotes these interlocking aims: to minimise the risk of future like deaths; to give the beginnings of justice to the bereaved; to assuage the anxieties of the public. The means of their fulfilment cannot be reduced to a catechism of rules. What is required is a flexible approach, responsive to the dictates of the facts case by case. In our judgment the Strasbourg authorities including Edwards are perfectly consistent with this."
"… Rule 42 can and should, contrary to Jamieson, when necessary be construed (in relation to both criminal and civil proceedings) only as preventing an individual being named, with the result that a finding of system neglect of the type we have indicated will not contravene that rule. If the Coroner is acting in accordance with the rule for this purpose he will not be offending in this respect section 6(1) [of the 1998 Act].
92. For a Coroner to take into account today the effect of the HRA on the interpretation of the Rules is not to overrule Jamieson by the back door. In general the decision continues to apply to inquests, but when it is necessary so as to vindicate Article 2 to give in effect a verdict of neglect, it is permissible to do so. The requirements are in fact specific to the particular inquest being conducted and will only apply where in the judgment of the Coroner a finding of the jury on neglect could serve to reduce the risk of repetition of the circumstances giving rise to the death being inquired into at the inquest. Subject to the Coroner, in the appropriate cases, directing the jury when they can return what would in effect be a rider identifying the nature of the neglect they have found, the rules will continue to apply as at present. The proceedings should not be allowed to become adversarial. We appreciate there is no provision for such a rider in the model inquisition but this technicality should not be allowed to interfere with the need to comply with section 6 of the HRA."
I read that approach as applying to the present situation in which the challenge is not to the verdict of suicide but to the absence of a rider, or the absence of the opportunity for the jury to add a rider, referring to neglect.
Use of form F2052SH
1. The applicant's legal advisers cannot be criticised, in the absence of knowledge of Middleton, for not advising the applicant to apply for judicial review.
2. The judgment at first instance in Middleton (14 December 2001) came to the attention to the applicants solicitor on 20 December 2001.
3. Application for public funding was made on 21 December, counsel having advised promptly.
4. Strenuous efforts were made to secure public funding and overcome the obstacles presented.
5. The certificate of public funding was received on 22 April 2002 and the claim form issued within three days.
6. The point which arises is one of considerable public interest as well as of importance to the applicant.
7. The re-opening of the issue is not detrimental to good administration, though the concern to those involved in the inquest must also be recognised.
8. This is not a case where the conduct of the applicant or of her legal advisers can be criticised. They have not been inactive.