England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT) MR JUSTICE BEATSON
REF NO:CO78652008

		Royal Courts of Justice Strand, London, WC2A 2LL
		18/12/2009

Lord Justice Maurice Kay :

1. On 5 January 2007, Caroline Jane Powell was found dead in her cell at HMP Eastwood Park. She was hanging from a sheet attached to the wardrobe. An inquest was held before Deputy Coroner Voisin between 19 and 23 May 2007. It was common ground that Caroline had brought about her own death but there was an issue as to whether she had intended to kill herself or whether what she had done was intended as a cry for help which had unintended consequences. If the former, then the appropriate verdict would have been one of suicide. However, the jury concluded that suicide was not established and that the appropriate verdict was one of accident. This appeal relates to judicial review proceedings brought on behalf of one of Caroline's children. In essence, the complaint is that in an inquest to which Article 2 of the European Convention on Human Rights applies – and this clearly was such an inquest – the Deputy Coroner misdirected the jury because she did not properly explain to them that, if they returned a verdict of suicide or accident, they could also append a narrative about the circumstances of the accident. The verdict did not address the extensive evidence which was critical of the prison authorities in the way that they had managed and cared for Caroline during her short time in Eastwood Park.
2. In the Administrative Court [2009] EWHC 820 (Admin), Beatson J held that the jury had not been misdirected but that, even if there had been a misdirection as claimed, he would not have remitted the matter for a new inquest because, taking into account a report of the Prisons and Probation Ombudsman ("the Prisons Ombudsman") which had been published shortly before the inquest, the investigative obligation imposed upon the state by Article 2 had been effectively discharged.

The factual background

3. It is necessary to set out more of the factual background. Caroline was a troubled woman with a history of drug abuse and self-harm. She had five children, of whom two were freed for adoption and indeed adopted some time ago, two were in care with adoption proceedings pending, and one was still living with her prior to her arrest. On 29 November 2006, Caroline was charged with an offence of burglary and breach of a community order. She was remanded in custody to Eastwood Park. The Probation Service notified the prison that she was recorded as a self-harmer. On reception, her health assessment recorded that she had tried to self-harm a couple of months previously. It also referred to accommodation problems. The health care assistant who carried out the assessment did not open an "Assessment, Care in Custody and Teamwork" form which can be opened by any member of the staff who is concerned about a risk of self-harm or suicide, nor was there a reference to the Primary Mental Health Care Team. Caroline was placed on the detoxification wing. The officer who completed the assessment recorded that she did not consider her to be suicidal, nor did she refer to any information that had been received from other agencies.
4. On 18 December, Caroline was moved from the detoxification wing and placed in a cell on her own. On 20 December she told a member of the counselling team that "… if I get three years, I'll probably kill myself" but the counsellor interpreted this as no more than a flippant remark. On 3 December, Caroline wrote to her partner telling him that she would try to harm herself. On 3 January she was seen by Dr Illingworth who noted her low mood and prescribed anti-depressants. On 4 January a solicitor made what he considered to be an unrealistic bail application. Caroline had hoped for bail so as to enhance her prospects in the adoption proceedings. On the bail application, the solicitor did not detect any suicidal intent.
5. On 5 January Caroline was locked in her cell at 12.23. The cell door was unlocked at 14.00. She was found hanging at 14.43.

The Prison Ombudsman's report

6. The death was investigated on behalf of the Prisons Ombudsman by Ms Sarah Hughes. The Ombudsman published a report shortly before the inquest and Ms Hughes gave evidence at the inquest. The report contained five recommendations, four of which were accepted without demur by the Prison Service. The fifth – that wardrobes in cells should be assessed to remove potential ligature points – was partially accepted, with the observation that wardrobes did not provide the only ligature points in cells. The four wholly accepted recommendations were:

"(1) The Head of Healthcare should ensure that staff responsible for generating mental health assessment appointments after a detoxification programme are clear [about] their responsibility.

(2) The Governor should remind officers that during all checks on prisoners they should receive either a visual or verbal response.

(3) The Governor [should] remind discipline staff of the need to properly complete Cell Sharing Risk Assessment forms, indicating precisely which documents have been seen and received at this stage.

(4) The Governor should remind personal officers of their responsibility to record contact with prisoners in wing files in accordance with the 2007 Personal Officer Scheme Policy and Strategy."

The summing-up

7. Having referred to the factual background, the report of the Prisons Ombudsman and the evidence of Ms Hughes – who had said that Caroline had not been seen as presenting a suicide risk and that, if a prisoner is presenting as being all right, "you can't expect people to mind-read" – the Deputy Coroner proceeded to her legal directions.
8. The Deputy Coroner directed the jury on how to complete the Inquisition. Box 2 of the Inquisition is headed "Injury or disease causing death". The evidence of the pathologist had been that the cause of death was hanging and the Deputy Coroner advised the jury accordingly. Box 3 is headed "Time, Place and Circumstances at or in which injury was sustained". Box 4 is headed "Conclusion of the jury as to the death". As to these, the Deputy Coroner directed the jury as follows:

"Item 3 on the form, Time, Place and Circumstances at or in which the injury was sustained. In completing this section, you will need to discuss between yourselves the evidence which you have heard and agree the factual circumstances which give rise to the death. When describing the circumstances, you should be brief, neutral and factual, expressing no judgment or opinion. You should set out actual facts as you find them and, as you consider them relevant and upon which you base your conclusion. An example, and this is only an example, would be at 15.10 hours on 5^th January 2007 at Eastwood Park Women's Prison, Gloucestershire, Caroline Jane Powell was found hanged in her cell. But again, this is a matter for you. Finally, item 4. The conclusion of the jury as to the death. When you have agreed the facts, then and only then should you consider and answer question 4. The Conclusion. This duty must transcend your feelings of sympathy for particular people. You have to reach a conclusion even if that conclusion seems to be unkind to some people. I now explain to you the various … conclusions that may be relevant in this case. You should note these directions very carefully. If you do not understand them or any aspect of them, please ask and I will be happy to provide you with further assistance. If possible, you should all agree your decisions. If you cannot then please advise me and then at that stage I will provide you with further directions. Now the first conclusion for you to consider is that of suicide. … Suicide is a voluntary … doing an act, which results in a death for the purposes of taking your own life while conscious of what you are doing. Suicide may never be presumed, but must always be based upon some evidence that the deceased intended to take her own life. Suicide should only be returned when other possible explanations have been totally ruled out. You must, on the evidence, be sure that the intention of the deceased was to take her own life. If you are not sure, then this conclusion should not be returned. If there is evidence that when the deceased acted, they [sic] were either suffering from a diagnosed mental illness or were acting irrationally, even though death was the intended result of the act, then it is open to you to add the words to the effect, that is, whilst the deceased was suffering from, and then you insert the diagnosed condition. The correct wording for you to adopt, if you decide on this verdict would be, Caroline Jane Powell took her life, and then it is up to you to add if you want to add, whilst the deceased was suffering from, then you put in the condition. Only when you have considered this verdict and rejected it should you then consider the relevance or otherwise of the other conclusions …

An accident arises if the evidence shows that its probable that it is more likely than not the cause of death arose directly from some procedure, process or event over which there was no human control, or was the consequence of an unintended act or omission or as the unintended consequence of a deliberate act or omission. An example in this particular case would be if, say, Caroline was hoping to be found, a sort of cry for help, but again, that is a matter for you. … There has to be a direct link between the event and the death that followed. The correct wording for you to adopt here if you found this as the appropriate verdict would be Caroline Jane Powell died as a result of an accident. The next option for you to consider would be a verdict of narrative. If you do not consider that any of the above verdicts express your factual conclusions then you may return a narrative verdict, which is a short statement summarising your factual conclusions as to the circumstances in which Caroline came by her death. In this particular case, you can interpret the term to include by what means, and in what circumstances. To return a narrative verdict, the act or omission must have contributed to the death in a more than minimal or trivial way. As with the other verdicts, the same rules apply, and the phrases you must not use are things like neglect or carelessness, as an example really. You must not name individuals either other than Caroline herself and you must all agree to the phrase that you decide to use. To assist you, please consider some of the following issues … "

9. The Deputy Coroner then referred to a number of matters including Caroline's children and the ongoing family court proceedings for the adoption of two of them; the pending criminal case; Caroline's relationship with her partner; Caroline's history of drug abuse and her detoxification at Eastwood Park. The Deputy Coroner then continued:

"Did the staff obtain sufficient information about any factors which would render Caroline vulnerable to self-harm or suicide? How Caroline appeared to those she had contact with at Eastwood Park. Was it appropriate to put her in a cell on her own? The impact of the unsuccessful bail application … on Caroline. How Caroline appeared to her fellow inmates and prison staff on the morning of the 5^th January. The manner in which cells were unlocked. Whether there were any sufficient warnings of her intention to those in authority."

Finally, the Deputy Coroner assisted the jury with the uncomplicated formal requirements in relation to Box 5 which deals with personal details of the deceased.

10. When the jury retired, Miss Paterson who was appearing on behalf of the family, said to the Deputy Coroner:

"I wonder if the jury could be reminded that if they decide to return a verdict of suicide or accident, they will need the short form verdicts. This does not prohibit them from attaching a short narrative to the short form verdict but they are allowed to do that."

11. The Deputy Coroner asked the advocate for the NHS for her view. She simply said that she did not disagree with Miss Paterson. The Deputy Coroner then asked the advocate for the Prison Service for his view, adding:

"Personally, before you say anything, the time, place and circumstances at and in which the injury was sustained in my view often incorporates what you've just asked."

12. The advocate for the Prison Service made some equivocal observation in the course of which he referred to Miss Paterson's request as involving "a slight hybrid between the short form and the narrative", adding that he was "not sure about the technical correctness of that". There were then further exchanges between the Coroner and Miss Paterson before the Deputy Coroner concluded:

"I think the summing up gives clear direction to the jury about what their task is. I think the summing up clearly explains the verdicts and how they should be used and I think my direction on narrative clearly gives them the option that if they don't consider the short form verdicts express their factual conclusions, then they can return a narrative verdict and that confirms that they can do a short statement summarising the factual conclusions."

13. She declined to give the jury any further directions.

The legal framework

14. By section 11(5)(b)(ii) of the Coroners Act 1988, the Inquisition must set out, so far as such particulars have been proved, "how, when and where the deceased came by his death". Rule 36(1) of the Coroners Rules provides that the proceedings and evidence shall be directed solely to ascertaining (a) who the deceased was, (b) how, when and where the deceased came by his death and (c) the particulars required for registration of death. Rule 36(2) adds:

"Neither the coroner nor the jury shall express any opinion on any other matters."

15. Rule 42 provides that 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.
16. Before the coming into force of the Human Rights Act 1998, the word "how" in section 11(5)(b)(ii) and Rule 36(1)(b) was interpreted as meaning "by what means" and not "in what broad circumstances": see HM Coroner for North Humberside ex parte Jamieson [1995] QB 1. Now, Article 2 of the ECHR necessitates a different interpretation. In R (Middleton) v West Somerset Coroner [2004] UKHL 10, [2004] 2AC 182 Lord Bingham summarised the Strasbourg jurisprudence as follows (at paragraphs 2 and 3):

"The European Court of Human Rights has repeatedly interpreted Article 2 … as imposing on member states substantive obligations not to take life without justification and also to establish a framework of laws, precautions, procedures and means of enforcement which will, to the greatest extent reasonably practicable, protect life …

The European Court has also interpreted Article 2 as imposing on member states a procedural obligation to initiate an effective public investigation by an independent official body into any death occurring in circumstances in which it appears that one or other of the foregoing substantive obligations has been, or may have been, violated and it appears that agents of the state are, or may be, in some way implicated."

17. Lord Bingham considered how far the existing regime for conducting inquests in England and Wales matched up to the investigative obligation imposed by Article 2. He referred to circumstances in which the state's procedural obligation may be discharged by criminal proceedings but acknowledged that this would not always be so. He considered that in some circumstances short verdicts in the traditional form would be sufficient to enable the jury to express their conclusion on the central issue canvassed at the inquest, for example lawful or unlawful killing, or unlawful killing or suicide. However, he added (at paragraph 31):

"But it is plain that in other cases a strict ex parte Jamieson approach will not meet what has been identified above as the Convention requirement. In Keenan 33 EHRR 913 the inquest verdict of death by misadventure and the certification of asphyxiation by hanging as the cause of death did not express the jury's conclusion on the events leading up to the death. Similarly, verdicts of unlawful killing in Edwards and Amin, although plainly justified, would not have enabled the jury to express any conclusion on what would undoubtedly have been the major issue at any inquest, the procedures which led in each case to the deceased and his killer sharing a cell."

18. Lord Bingham concluded that the incorporation of the ECHR and the approach to statutory interpretation mandated by section 3 of the Human Rights Act required the word "how" in section 11(5)(b)(ii) and Rule 36(1)(b) of the Rules to be reinterpreted as meaning not simply "by what means" but "by what means and in what circumstances". He then said (at paragraphs 36 and 37):

"This will not require a change of approach in some cases, where a traditional short form verdict will be quite satisfactory. It will call for a change of approach in others … In the latter class of case it must be for the Coroner, in the exercise of his discretion, to decide how best, in a particular case, to elicit the jury's conclusion on the central issue or issues. This may be done by inviting a form of verdict expanded beyond those suggested in … the Rules. It may be done, and has (even if very rarely) been done, by inviting a narrative form of verdict in which the jury's factual conclusions are briefly summarised. … It would be open to parties appearing or represented at the inquest to make submissions to the Coroner on the means of eliciting the jury's factual conclusions and on any questions to be put, but the choice must be that of the Coroner and his decision should not be disturbed by the courts unless strong grounds are shown.

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' … and does not preclude conclusions of fact as opposed to expressions of opinion. However the jury's factual conclusion is conveyed, Rule 42 should not be infringed. Thus there must be no finding of criminal liability on the part of a named person. Nor must the verdict appear to determine any question of civil liability. Acts or omissions may be recorded, but expressions suggestive of civil liability, in particular 'neglect' or 'carelessness' and related expressions should be avoided. Self-neglect and neglect should continue to be treated as terms of art. A verdict such as … 'the deceased took his own life, in part because the risk of doing so was not recognised and appropriate precautions were not taken to prevent him from doing so' embodies a judgmental conclusion of a factual nature, directly relating to the circumstances of death. It does not identify any individual nor does it address any issue of criminal or civil liability. It does not therefore infringe either Rule 36(2) or Rule 42."

19. Lord Bingham's reference to Amin was a reference to Regina (Amin) v Secretary of State for the Home Department [2003] UKHL 51, [2004] 1 AC 653, in which he had stated (at paragraph 31):

"… in any case where a death has occurred in custody it is not a minor or unimportant duty. In this country … effect has been given to that duty for centuries by requiring such deaths to be publicly investigated before an independent judicial tribunal with an opportunity for relatives of the deceased to participate. The purposes of such an investigation are clear: to ensure so far as possible that the full facts are brought to light; that culpable and discreditable conduct is exposed and brought to public notice; that suspicion of deliberate wrongdoing (if unjustified) is allayed; that dangerous practices and procedures are rectified; and that those who have lost their relative may at least have the satisfaction of knowing that lessons learned from his death may save the lives of others."

20. For the moment, I confine myself to these passages which contain the essence of the approach required by Article 2.

The application for judicial review

21. In a nutshell, the application for judicial review asserted that the Deputy Coroner's summing up failed to comply with the procedural requirements of Article 2 because it failed to elicit the jury's conclusions on the central factual issues at the inquest and it was misleading and confusing because it implied that the jury were prevented from appending a narrative text to their verdict if they returned a verdict of death by accident or suicide. The application sought the quashing of the Inquisition and an order for the holding of a new inquest.

The judgment of Beatson J

22. The application for judicial review was dismissed by Beatson J. He said (at paragraphs 59 and 60):

"I reject the submission that it was incumbent on the Coroner to direct the jury expressly that a narrative summary should be added to a short form verdict. That essentially would have created a hybrid. The jury had three options open to them. They were 'enabled' to express their conclusions on the core facts if they considered that the two short form verdicts did not do so.

I also conclude that it is possible to infer from this verdict that the accident verdict was sufficient to express the jury's factual conclusions and conclusion that there was insufficient evidence that the 12 acts or omissions contributed to the death in more than a minimal or trivial way."

23. He had earlier said (at paragraph 57):

"… in the present case the jury were enabled in [Box] 3 of the Inquisition to refer to the circumstances in which the injury was sustained, but chose not to do so. Again, the terms of the summing up are important. The Coroner said that with regard to [Box] 3, the jury 'will need to discuss between yourselves the evidence which you have heard and agree the factual circumstances which give rise to the death. When describing the circumstances, you should be brief, neutral and factual, expressing no judgment or opinion.' [Box] 3 of the form was a section to be filled in whichever verdict they came to."

24. Beatson J went on to say that, if he had concluded that the summing up had been defective, he would nevertheless have declined to order a fresh inquest. He said that he would have taken into account not only the importance of the matter but also the lapse of time and "the overall position", including the Prisons Ombudsman's Report with its five recommendations, four or which had been entirely accepted by the Prison Service and the fifth of which had been partly accepted with a realistic qualification. The judge added (at paragraphs 70 to 71):

"There is no sign that lessons have not been learned. …

In the light of the absence of criticism of the thoroughness of the investigation at the inquest or the evidence heard, and the narrowness of the criticism made of the Coroner's summing up, had the summing up been defective in the way that the claimant said it was, given the Ombudsman's Report, this was not a case for remission."

Misdirection

25. Summing up to a jury in an Article 2 inquest is inherently difficult. For example, how can the jury be provided with an intelligible explanation of the relationship between "how [viz in what circumstances] … the deceased came by his death", the prohibition on the expression of "any opinion on any other matters" and the avoidance of language which "appears to determine any question of … civil liability"? In Middleton, Lord Bingham illustrated permissible language with the example: "the deceased took his own life, in part because the risk of doing so was not recognised and appropriate precautions were not taken to prevent him from doing so" (see paragraph 16, above). He described that as embodying "a judgmental conclusion of a factual nature" which does not address any issue of criminal or civil liability. However, with great respect, it seems to me that the fact that appropriate (a word often pregnant with ambiguity) precautions were not taken and this was causative of the death may well seem to be addressing issues of civil liability. It depends what is meant by "appropriate". It is impossible not to sympathise with coroners and juries who have to navigate these confusing waters. It would not be surprising if a jury opted for the simplest solution.
26. I have included those observations not because they provide the solution to this appeal but because they help to set the scene. It seems to me that the first task of the coroner in an Article 2 inquest is "to decide how best, in a particular case, to elicit the jury's conclusion on the central issue or issues" (Middleton, paragraph 36). In the present case there was no real issue about the mechanism of death, nor was it suggested that Caroline died otherwise than as a result of her own unassisted act. The real issues were (1) whether she had intended to take her own life and (2) in any event, whether the system for prevention of suicide or self-harm merited criticism. It seems certain that the several days of the hearing were taken up more by evidence referable to (2) than to (1). The question we have to consider is whether, by her directions, the Deputy Coroner effectively foreclosed (albeit inadvertently) the possibility of a narrative verdict addressing (2).
27. The Deputy Coroner gave the jury unobjectionable directions on suicide and accident. It is the immediately following passage which is problematical:

"The next option for you to consider would be a verdict of narrative. If you do not consider that any of the above verdicts express your factual conclusions then you may return a narrative verdict, which is a short statement summarising your factual conclusions as to the circumstances in which Caroline came by her death."

28. I cannot escape the conclusion that these words would have given the jury the impression that they could only return a narrative verdict if they did not return a verdict of suicide or accident. However, since Middleton there has been no legal impediment to a verdict of either suicide or accident having a narrative appended to it. Indeed, once the jury had resolved issue (1) – suicide or accident – it is difficult to see how they could have addressed issue (2) other than by appending a narrative. Issue (2) raised the questions referred to by the judge and set out in paragraph 10 above. The evidence was extensive and rival submissions were advanced. As in R (Cash) v County of Northamptonshire Coroner [2007] EWHC 1354 (Admin) similar points raised were "disputed factual issues at the heart of the case" and "core issues which the inquest raised" (per Keith J at paragraphs 52 and 53). In my judgment, the jury in the present case were effectively disabled from fulfilling the purposes referred to by Lord Bingham in Amin (see paragraph 19, above). This is not to say that the content of any appended narrative would have been obvious. We do not have the benefit of having heard the evidence at the inquest. The jury may or may not have accepted the criticisms of the system. Either way, however, there was a public interest in their being given a clear opportunity to express their findings in narrative form.
29. One of the reasons why Beatson J was content with the summing up was that "the jury was enabled in [Box] 3 of the Inquisition to refer to the circumstances in which the injury was sustained, but chose not to do so". Box 3, it will be recalled, is headed "Time, place and circumstances at or in which injury was sustained". Beatson J correctly observed that it had to be filled in, regardless of which verdict was returned. However, the Deputy Coroner had directed the jury in relation to Box 3:

"When describing the circumstances, you should be brief, neutral and factual, expressing no judgment or opinion."

30. That, I apprehend, is a conventional Box 3 direction. Far from "enabling" the jury to append a narrative at that point, it is more of a direction not to do so. It certainly does not cure the misdirection which I have identified.
31. Beatson J also considered the completed Inquisition to be susceptible to an inference that the jury had concluded that there was insufficient evidence that the evidence of systemic acts and omissions contributed to the death in more than a minimal or trivial way. Whilst it is true that the Deputy Coroner had directed the jury that, in order to return a narrative verdict, the jury had to be satisfied that such acts or omissions had contributed to the death in more than a minimal or trivial way – in itself an entirely correct direction – that still has to be seen in the context of the misdirection to which I have referred. In my view, it is too generous an interpretation to infer that the jury did not append a narrative to the verdict of accident because they were not satisfied that any systemic contribution was more than minimal or trivial.
32. For all these reasons, I conclude that the summing up was materially defective.

Consequences

33. The next question is whether we should quash the verdict of the jury and order a fresh inquest in the light of the misdirection. Beatson J made it clear that, even if there had been a misdirection, he would not have granted such relief. I set out his reasoning in paragraph 24, above. For my part I find that reasoning persuasive. Mr Southey points out that in the recent cases of misdirection in Article 2 inquests - Cash (above) and Calvert [2009] EWHC 661 (Admin) – misdirection led to quashing orders and orders for new inquests. However, in both of those cases the misdirections embraced not only foreclosing narratives but also failing to leave relevant short-form verdicts – unlawful killing in Cash and neglect in Calvert. Moreover, in the present case there is the important feature of the Prisons Ombudsman's Report. I agree with Beatson J's assessment of its significance. It is also important to keep in mind that the procedural obligation of Article 2 is imposed not simply on the Deputy Coroner but on the state. To see whether the obligation has been discharged it is necessary to consider the entirety of investigative apparatus deployed by the state. This includes the Ombudsman's Report which, it seems to me, substantially filled the lacuna left by the limited nature of the jury's verdict and thereby rendered the totality of the investigative process Article 2 compliant. It was also partly based on input from Caroline's family. As Beatson J said, there is no sign that lessons have not been learned. Indeed, when pressed, Mr Southey had difficulty in identifying further benefits that would be likely to ensue from a new inquest. I consider that the contingent refusal of relief was correct and I would endorse it. For the reasons he gave, I do not think that this is a case for a new inquest.

Lord Justice Rimer:

34. I agree.

Lord Justice Dyson:

35. I also agree.