Case No: C3/2002/1633
Neutral Citation No [2003] EWCA Civ 217
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT (MR JUSTICE TUCKER)
Royal Courts of Justice
Strand, 
London, WC2A 2LL

Thursday 27th February 2003
Before:

LORD JUSTICE PILL
LORD JUSTICE MUMMERY
and 
LORD JUSTICE LATHAM

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Between:

	Ms Helen SACKER	Appellant	
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	HM Coroner for the County of West Yorkshire	Respondent	
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(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
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Richard Gordon QC and Stephen Cragg (instructed by Messrs Howells (Sheffield) for the Appellant
James Findlay (instructed by City of Wakefield MDC, Central Services Department) for the Respondent
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Judgment
As Approved by the Court

Crown Copyright ©

Lord Justice Pill: 

1.	This is an application for permission to appeal with appeal to follow if permission is granted. It is made in relation to the order of Tucker J on 4 July 2002 refusing Ms Helen Sacker permission to apply for judicial review of a decision of HM Coroner for West Yorkshire (Eastern District) on 11 October 2001. The Coroner declined to leave to a Coroner’s jury the opportunity to bring in a verdict including neglect at the inquest into the death of Sheena Creamer who died at HMP New Hall on 7 August 2000, aged 22 years. The claimant Ms Helen Sacker is the mother of Sheena Creamer. She seeks to quash the inquisition and an order that a fresh inquest be held. 
2.	The application for judicial review was filed on 25 April 2002. Tucker J refused it on the ground of delay before the claim was filed and on the merits. The claimant seeks a short extension of time in which to apply for permission to appeal. She seeks permission to appeal and permission to apply for judicial review. If permission is granted, she invites the Court itself to decide the application for judicial review and not to remit it to the High Court. No civil or criminal proceedings have been commenced.
3.	Ms Creamer had been held on remand in HMP New Hall for an alleged offence of dishonesty for over a week before her death. At a remand hearing at the Magistrates’ Court on 4 August 2000, she had become very upset and a prison officer had opened a form F2052SH on that date. The form is headed “Self harm at risk form” and is stated on its face to be a form which “may be raised by any member of staff who is concerned about a prisoner”. As a result of the form being opened, Miss Creamer was taken to the health care centre at the prison. She was going through a drug detoxification at the time.
4.	The deceased remained subject to the F2052SH form until her death. However,  on 5 August she was examined by a locum doctor, Dr Spivack, who was unaware of the procedure which went with the form. He referred her back to the residential wing at the prison. She was placed in a single cell and made subject to half-hourly visits. There was a modesty curtain around the toilet. On the 11.30 pm check on the night of 6-7 August, Miss Creamer was found hanging from the window by the privacy curtain and was pronounced dead on arrival at the hospital.
The Inquest
5.	The Coroner read the Inquisition at the conclusion of the inquest:
“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 … .”
6.	Before closing the Inquest, the Coroner referred to Rule 43 of the Coroner’s Rules which provides:
“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.”
7.	The Coroner stated:
“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.”
8.	In his letter to the Director General of the Prison Service dated 31 October 2001, the Coroner set out the findings at the inquest and added:
“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.”
The Issue
9.	The issue in the case is whether the Coroner ought to have acceded to the submission of Mr Cragg, counsel for the claimant at the inquest, that the jury should have been given an opportunity to add to a verdict that the deceased had killed herself a rider providing that “neglect had contributed” to the death. Reliance is placed on the decision of this Court in The Queen on the application of Amin and The Queen on the application of Middleton v Secretary of State for the Home Department [2002] EWCA Civ 390 (“Middleton”) where the judgment of the Court was given by Lord Woolf CJ on 27 March 2002, that is after the inquest. The Coroner did leave to the jury the possibility of bringing in a verdict of accidental death, a verdict of death by misadventure and an open verdict.
The Authorities
10.	Rule 36 of the Coroners Rules 1984 provides:
“(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.” 
11.	Constraints are placed on what may be included in a verdict by Rule 42 of the Rules:
“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.”
12.	In R v H M Coroner for North Humberside and Scunthorpe ex p Jamieson [1995] QB 1, Sir Thomas Bingham MR set out in a series of propositions the principles to be applied under the Coroners Act 1988. That case also involved an inquest which followed a prisoner hanging himself in prison and issues arose as to possible neglect by the Prison Service. Having stated, in proposition 10, that neglect “can rarely, if ever, be an appropriate verdict on its own”, a proposition not disputed in the present case, the Master of the Rolls continued: 
“(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.”
13.	What was considered in Middleton, another case where the deceased hanged himself while in prison, was the impact on domestic law, in the light of the Human Rights Act 1998 (“the 1998 Act”), of Article 2 of the European Convention on Human Rights. Article 2 provides, among other things, that “everyone’s right to life shall be protected by law”. In McCann v United Kingdom [1995] 21 EHRR 97, the European Court of Human Rights (“the ECHR”) considered the extent of the obligation imposed on the State by Article 2. The Court stated, at paragraph 161:
“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.” 
Middleton
14.	Those propositions were re-stated in Edwards v United Kingdom (The Times 1 April 2002). In Middleton, the Court considered McCann and subsequent decisions of the ECHR, including those just mentioned. The Court concluded, at paragraph 62:
“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.”
15.	The Court summarised, at paragraph 91, the effect of that approach:
“… 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.
Submissions
16.	Mr Gordon QC, for the claimant, submits that the provisions of Article 2 of the Convention, as now construed in Middleton, did require the Coroner to leave to the jury the opportunity to state, if they saw fit, that systemic neglect had contributed to the deceased taking her own life. The relevance of systemic neglect, as explained in the ECHR, had not been considered in Jamieson which pre-dated the 1998 Act. In exercising his powers under Rule 43 to write to the Director of the Prison Service in the terms he did, the Coroner was acknowledging the possibility of systemic neglect. By virtue of Middleton (paragraph 92) the Coroner was required to exercise a judgment as to whether a finding on neglect could serve to reduce the repetition of the circumstances giving rise to the death. Applying the law as it was then understood to be, the Coroner exercised no such judgment. It is conceded that for neglect to form any part of the verdict, it was necessary to establish a clear and direct causal connection between the conduct relied on and the cause of death (Jamieson proposition 12). It is submitted that the Coroner did not address himself to that issue either. Had he done so, the connection was clear. 
17.	For the Coroner, Mr Findlay, submits that the verdict should stand in its present form. He submits first, that the claimant should not be permitted to take a point on systemic neglect having failed to take it before the Coroner. In my view, on the pre-Middleton state of the law, it is not surprising that the point was not taken. Secondly, Mr Findlay submits that the action taken by the Coroner under Rule 43, if acted upon, amounts to compliance with the Article 2 duty upon the State. Thirdly, he submits that the alleged failures did not have the necessary causal connection with the cause of death. He refers to the absence of evidence of psychiatric illness and to the absence of evidence that events would have taken a different course had the form F2052SH procedure been followed correctly.
Use of form F2052SH
18.	In my judgment, the case turns upon an analysis of the procedure required by the form, the procedure followed, and its relevance to the death. The form is  long and complex and the procedures stated in it provide clear guidance as to what is to happen if the form is opened in relation to a prisoner. The prisoner’s particulars are to be stated on the cover of the form and the “initiating member of staff” is required to complete page 1 by answering the questions “Why are your concerned?”, “What does the prisoner say about his/her situation?” and “What do you think should be done to help the prisoner?” The form is then to be passed to the unit manager. One page of the form describes “How the F2502SH system works”, another provides “Guidance for staff” and other pages, under the headings “Initial action by residential unit manager” and “Record of case review” are to be filled in as appropriate. Provision is made for a “Health/care assessment”, a “Discharge report” and a “Daily supervision and support record”.
19.	Under the heading “Guidance for staff” it is stated that a case review should generally be held within 72 hours of the form being raised (unless the prisoner is admitted to the health care centre) and prior to discharge from the health care centre. “Ideas for a support plan” include, as suggestions, the allocation of a personal officer or key worker, a shared cell, in-cell hobbies and involvement in activities. The plan is required to be specific about action to be taken, when and by whom. Provision is made for closing the form when the prisoner appears to be coping satisfactorily. It is provided that a case review shall be held when closing the form and reasons for closure should be recorded.
20.	The initiating officer, PCO J Clayton, answered the questions on page 1 on 4 August noting that the prisoner was very depressed and recording her as saying that “if she goes back to prison today she will do herself in”. Under the heading “Health care assessment” Dr Spivack reported on 5 August: “Not suicidal or thinking of self harm. Was reaction to failure to get bail. Compos mentis. I feel she is manipulative.” “Return to residential unit” was recommended. The daily supervision and support record was maintained by members of staff and the entries do not appear to have been such as would give rise to concern. No entries are made on the page entitled “Initial action by residential unit manager” but the form provides that the page does not apply when the prisoner is referred direct to the health care centre, as Ms Creamer was. No entries appear on the page entitled “Record of case review”. There is no evidence of a case review prior to discharge from the health care centre.
21.	Because there may be a fresh inquest, I keep my comment on the procedure followed, as compared with the procedure provided by the form, to a minimum. It appears clear that there should have been a case review no later than the discharge of the deceased from the health care centre on 5 August. Such case review would have included a “Support plan”, suggestions for which are stated in the printed form. Had a decision been taken to close the form, the requirement for a case review would also have arisen.
Conclusions
22.	The Coroner’s letter to the Director General establishes that there was evidence that Dr Spivack did not fully understand the F2052SH system. The procedure provided by the form was not in fact followed. While there was evidence of what is described in Middleton as “system neglect”, from the contents of his letter it is also clear that, in the Coroner’s view, action should be taken, in relation to the alleged neglect, and within the meaning of Rule 43, to prevent the occurrence of similar fatalities. Had the Coroner had the guidance given in Middleton, it is highly likely that he would have allowed the jury the opportunity to add a rider to their verdict, if they saw fit, referring to neglect. It cannot in my judgment be said that the required causal link between the alleged neglect and the cause of death is absent. Measures may well have been taken, had the procedure in the form been followed, which arguably would have prevented the death.
23.	In my judgment, it follows from the approach laid down in Middleton that the opportunity to add a rider referring to neglect should have been given to the jury and the failure to give it amounts to a defect which requires that the inquisition be quashed. There is a real possibility that a different verdict would have been reached had the jury been directed in accordance with Middleton and the interests of justice require a fresh inquest. This Court is bound by Middleton and it follows from the reasoning in Middleton that action under Rule 43 does not in circumstances such as the present provide compliance with Article 2.
Reservations
24.	I should wish respectfully to express my reservations as to the appropriateness of the course the law has taken by its promotion of the neglect rider at inquests as the means of vindicating Article 2. While the decisions of the ECHR do include references, for example, to “the identification and punishment of those responsible for the deprivation of life” (Keenan v United Kingdom (2001) 33 EHRR 913) and to the “widest exposure possible” of a series of failings by public bodies and servants (Edwards, paragraph 83), the emphasis is upon the provision of an effective investigation appropriate to the circumstances of the death, its form differing with the circumstances. Flexibility is required (Jordan, Edwards), for example as between the procedure where there have been alleged killings or infliction of treatment contrary to Article 3 of the Convention (torture and inhuman or degrading treatment) and other failings by the authorities (Z v United Kingdom (2001) 34 EHRR 97), all cases referred to in Middleton. Vindication of Article 2 in system cases such as the present is surely in effective measures to prevent repetition.
25.	Considered in that context, it is relevant that the function of and the procedures at an inquest are circumscribed in the Coroners Rules 1984, by, for example the limited matters to which under Rule 36 the proceedings and evidence may be directed, the provision in Rule 40 that “no person shall be allowed to address the Coroner or the jury as to the facts” and the provisions of Rule 42 already cited. These limitations are recognised in the propositions stated in this Court in Jamieson and, to some extent, in Middleton itself. I have no doubt that Coroners are very conscious of them. I do respectfully question whether, given present procedures, an inquest is the appropriate forum in which to consider the issue of systemic neglect, for the purpose of vindicating Article 2, in cases such as the present. 
26.	I acknowledge the importance of giving the beginnings of justice to the bereaved, the expression used in Middleton (paragraph 62), as a function of the inquest. However, the evidence called and the scrutiny it is given are necessarily limited. The constraints upon any debate at the inquest upon systems of management and systems of work, whether in prisons, hospitals or the workplace, including the prohibition on addressing the Coroner or the jury as to the facts, are such as to be likely to render the remedy ineffectual or worse. 
27.	The Court does not know the full effect of the Coroner’s action under Rule 43 but that action would appear, in present circumstances, to be a stronger affirmation of the right to life, with its requirement of effective investigation into a death. Moreover, given the context in which they operate, the Coroner’s jury are ill-equipped to identify and particularise the systemic neglect which they may believe to be present or even to decide whether they should particularise. Some may have been impressed, as suggested by counsel, with the presence of the curtain, others the lack of company (if indeed those matters go to system) and others with the more general consideration raised in the Coroner’s letter. Reasons are not required. 
28.	What Mr Gordon seeks is a rider stating: “neglect in failing to instruct doctor in use of form 2052SH and system”. As a means of preventing repetition, I do question whether that, if achieved, adds significantly to the Coroner’s action under Rule 43. There is, with respect, much force in Sir Thomas Bingham MR’s proposition 13 in Jamieson: “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.” Unless and until the role of inquests and the procedures under which they are conducted are revised, the neglect rider in itself may not in many cases, in my respectful view, be a beneficent way of discharging the duty under Article 2, with the emphasis the Article places, as construed, on the need to prevent repetition and on flexibility of approach.
Delay
29.	The verdict complained of was announced on 12 October 2001 and the application for judicial review not filed until 25 April 2002. Tucker J refused permission to extend the time within which to bring the application on the ground that it was not brought promptly and there were no proper reasons for failing to bring the application promptly and within three months, as required by CPR 54.5. The judge did not appear to accept that the time taken in obtaining public funding was a relevant factor in deciding whether to extend time. In that he was in my judgment wrong (R v Stratford-upon-Avon District Council ex parte Jackson [1985] 1 WLR 1319) and this Court may exercise a fresh discretion.
30.	Given the unusual combination of circumstances in this case, I would extend time:
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.
31.	It was for those reasons that, at the end of the hearing, the Court granted the extension of time and permission to appeal to this Court. It was also indicated that the Court would decide the case on the merits rather than remit the case to the High Court. For the reasons given in this judgment, I would allow the appeal, quash the inquisition and order a fresh inquest.
Mummery LJ:
32.	I agree.
Latham LJ:
33.	I also agree.
Order: Appeal allowed as per para 31 of the judgment; agreed minute of order approved by the court.
(Order does not form part of the approved judgment)