England and Wales High Court (Administrative Court) Decisions

Khan, R (on the application of) v HM Coroner for West Hertfordshire & Anor [2002] EWHC 302 (Admin) (7th March, 2002)

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		7 March 2002

Mr Justice Richards:

1. The claimant is the wife of Sultan Ashraf Khan, who died on 30 June 2000 after being detained by police officers on suspicion of a drugs offence. An inquest into his death commenced on 7 November 2001. On 15 November, after the conclusion of the evidence and after hearing legal submissions, the coroner made a ruling on the verdicts that should be left to the jury. He ruled in favour of leaving only two verdicts to them: accident and an open verdict. He rejected submissions that he should also leave verdicts of unlawful killing (whether by unlawful act or gross negligence), a breach of the deceased's right to life under Article 2 ECHR and a verdict of death contributed to by neglect. He adjourned the inquest to enable the claimant to challenge his ruling.
2. The claimant brought proceedings for that purpose in this court. It was directed that the application for permission be listed on the basis that the substantive hearing would follow immediately if permission was granted. In the event I heard full argument and reserved all questions to this judgment.
3. In adjourning to enable his ruling to be challenged, the coroner acted with great fairness and with a view to avoiding the unsatisfactory position that can arise where an inquest verdict is challenged after the event on the ground that the coroner erred in the verdicts that he left or did not leave to the jury. The course adopted, however, also has disadvantages. The inquest is due to resume on 14-15 March for the coroner to sum up and the jury to reach their verdict. By that time four months will have elapsed since the jury heard the evidence. It is highly undesirable for there to be so long a break at such a stage in the proceedings. A further disadvantage is that the court does not have the benefit of the coroner's summing up as a means of putting into perspective the pieces of evidence relied on by the parties and of gaining a better understanding of what the coroner regarded as important or unimportant.
4. That suggests to me that this court should entertain considerable caution about entertaining a challenge to an interlocutory ruling of this kind. My concern is heightened by the possibility of further delay if this court's decision is appealed. In the present case the coroner has indicated through counsel that he will accept whatever ruling is made by this court, but there has been no corresponding indication from the claimant. This is a point to which I shall return at the end of my judgment. Despite those concerns I have decided that in the circumstances of this case, and having heard full argument on the substance, I should not decline to entertain the claim on grounds of inappropriateness but should consider the substance of the case advanced.

Factual outline

5. On 30 June 2000 the deceased was under surveillance by police officers. He was sitting in his car in Clarence Park, St Albans with another man, Mr Malik Khan. The deceased was known to be a heroin abuser who had served terms of imprisonment for supply of the drug. On this occasion, as explained below, he was believed to have taken heroin. It was also subsequently established that he had taken cocaine. He was a large and very strong man.
6. DC Berry and DC Witchard approached in an unmarked car which pulled up alongside the driver's side of the deceased's vehicle. PS Cassells, a uniformed officer in a marked police car, pulled up directly behind the deceased's vehicle so as to block it in. The police evidence was that PS Cassells went to the passenger's side of the vehicle and spoke to Mr Malik Khan, who had already got out. DC Berry and DC Witchard opened the driver's door and saw a piece of foil and a lighter. At some point the deceased was found to have a wrap in his hand. The deceased told them to "fuck off", saying he had a knife. They grabbed him by the arms and a struggle ensued. PS Cassells joined in and applied a handcuff to the deceased's right wrist. The deceased was removed from the car. He was initially placed on his knees and then face down onto the ground, but he rolled onto his back as the struggle continued outside and an unsuccessful attempt was made to handcuff him more effectively. There was a short lull during which PS Cassells took the opportunity to radio that the deceased was under arrest and to ask for a van to transport the deceased to the police station. No urgency was expressed at that time. The call was logged at 14.56.
7. While the deceased was in the car PS Cassells had noticed that he appeared to have something in his mouth. When he was on his back outside the officers observed packages wedged into the roof of his mouth. They told him they knew he had drugs in his mouth and asked him to spit them out, but he would not do so.
8. The police evidence was that after the radio call at 14.56, and as they repeatedly asked the deceased to spit out what was in his mouth, his resistance increased. PS Cassells then radioed for urgent assistance. That call was logged at 15.00. Assistance arrived very quickly: PC McDermott's arrival was logged at 15.01 and other officers arrived soon afterwards. Meanwhile the struggle continued and the officers tried to get the packages out of the deceased's mouth. At some point it was noticed that the deceased had a powdery paste on his lips, indicating that a package had burst. PC McDermott called for an ambulance at 15.08.
9. Various further attempts were made to get the packages out of the deceased's mouth, including the holding of his nose in order to force him to open his mouth and the use of plastic tweezers in an attempt to retrieve the items.
10. The deceased lapsed into unconsciousness. It was only at a late stage that he was put in the recovery position. At some point he stopped breathing. The ambulance arrived at 15.25. The evidence of the paramedics was that there were no signs of life when they arrived and attempted resuscitation.
11. The medical evidence at the inquest was that the principal cause of death was morphine intoxication, with cocaine toxicity as a contributory factor. The mechanism by which ingestion of heroin causes death is by depressing respiration and inducing coma and ultimately causing loss of respiration.

The issue

12. In the claim form issue was taken with the entirety of the coroner's preliminary ruling. It was contended that he should have left to the jury verdicts of unlawful killing (both by unlawful act and by gross negligence), a breach of the deceased's right to life under Article 2 ECHR and a verdict of death contributed to by neglect. In his skeleton argument and oral submissions, however, Mr Blake QC for the claimant made clear that the only part of the claim that was pursued related to a verdict of neglect and that the rest of the claim was withdrawn.
13. It is therefore necessary to examine the coroner's ruling only in so far as it explained his general approach and dealt specifically with neglect. As to the general approach, he reminded himself that the jury are the arbiters of fact. He referred to R v. South London Coroner, ex p. Douglas-Williams [1999] 1 All ER 344 and to the test in R v. Galbraith [1981] 1 WLR 1039. He then dealt with the various specific verdicts. In relation to neglect he directed himself by reference to R v. HM Coroner for North Humberside and Scunthorpe, ex p. Jamieson [1995] QB 1 and went on:

“Now, in this particular case we have a position of somebody who has held wraps in his mouth. The evidence that the jury need to look at, is there evidence that could go before the jury to show that the absence of the procuring of basic medical attention meant a contribution towards his death? There has to be a clear and direct causal connection established between the conduct so described and the cause of death. I remind myself that there is incontrovertible evidence that an ambulance was called at 1508. I know that the first call from Sergeant Cassells, uncontroversial, referred to the fact 'under arrest, not urgent'. But is there evidence that can go before the jury to show a clear and direct causal connection that meant that the failure to call the ambulance before 1508 and when there were signs of distress indicated in those circumstances - would the failure of that have caused the death?

I remind myself and both counsel have helpfully reminded me of what the second ambulance lady said. There is some evidence that should go before the jury about the question of whether there was CPR, whether there was mouth to mouth resuscitation, these are matters that are clearly matters for the jury. But even on those bases, I do not think that there is evidence before the jury that can say that that failure and the failure to call an ambulance, if that is a failure, before 1508 had a direct and causal connection to the death. It is my view that there isn't evidence to go before the jury to suggest that. ”

14. I think it clear that the actual decision not to leave a verdict of neglect to the jury was based on the absence of sufficient evidence to establish causation. The ruling is neutral on the question whether there was sufficient evidence of fault; and although Mr Kilcoyne, for the coroner, informed me that the coroner in fact took the view that there was insufficient evidence of fault, the court must consider this challenge on the basis of his ruling and without regard to extrinsic information of that kind.

General approach

15. In R v. South London Coroner, ex p. Douglas-Williams, to which the coroner referred, Lord Woolf MR said at 349a-b:

“The conclusion I have come to is that, so far as the evidence called before the jury is concerned, a coroner should adopt the Galbraith approach in deciding whether to leave a verdict. The strength of the evidence is not the only consideration and, in relation to wider issues, the coroner has a broader discretion. If it appears there are circumstances which, in a particular situation, mean in the judgment of the coroner, acting reasonably and fairly, it is not in the interest of justice that a particular verdict should be left to the jury, he need not leave that verdict. He, for example, need not leave all possible verdicts just because there is technically evidence to support them. It is sufficient if he leaves those verdicts which realistically reflect the thrust of the evidence as a whole. To leave all possible verdicts could in some situations merely confuse and overburden the jury and if that is the coroner's conclusion he cannot be criticised if he does not leave a particular verdict.”

16. In the present case the coroner's decision not to leave the verdict to the jury was based on his application of Galbraith rather than upon an exercise of the broader discretion referred to by Lord Woolf in Douglas-Williams.
17. The question that then arises is what approach this court should adopt in reviewing a coroner's decision based on Galbraith. Mr Blake submitted that if there is evidence on which a reasonable jury properly directed could be satisfied of a verdict on the relevant standard of proof, then the coroner must leave that verdict to the jury and he does not perform his functions in accordance with law if he fails to do so. If, therefore, the evidential test for leaving a verdict to the jury is met, the court should intervene. In assessing whether the evidential test is met, the court will accord a degree of deference to the coroner's assessment of the evidence, having regard to the fact that he was better placed to assess its overall effect. But the court should treat the question as relatively hard-edged, as distinct from the approach when reviewing e.g. questions of discretion or application of policy. In support of that submission, emphasis was placed on the authorities that show the importance of an inquest and of the jury's verdicts for the family of the deceased, for the public interest and for satisfying the requirements of Article 2 ECHR in an appropriate case: see e.g. R (Middleton) v. HM Coroner of West Somerset [2001] EWHC Admin 1043, per Stanley Burnton J at para 54. Those considerations, it was submitted, make it all the important that a verdict should be left to the jury where there is evidence to support it.
18. Counsel for the coroner and the chief constable did not take issue with those submissions and I am prepared to proceed for the purposes of this judgment on the basis that the rigorous approach advocated by Mr Blake is correct.

Relevant authorities on neglect

19. The leading authority on neglect remains R v. HM Coroner for North Humberside and Scunthorpe, ex p. Jamieson, by reference to which the coroner directed himself. The conclusions of Sir Thomas Bingham MR in Jamieson included the following (at 25B-26A):

“(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 position is such as to show that he obviously needs it may amount to neglect ….

(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.”

20. It is common ground that in relation to a verdict of neglect the standard of proof is the civil standard of balance of probabilities, as opposed to the criminal standard which applies in relation to unlawful killing.
21. In R v. HM Coroner for Coventry, ex p. Chief Constable of Staffordshire (2000) 164 JP 665, Tomlinson J made the following observations on the question of causation (at 675-6):

“The key to the proper approach here is, in my judgment, an appreciation that the expression 'clear and direct causal connection' was not used by the Master of the Rolls in the Jamieson case in the same sense in which such words might be used when considering whether a breach of contract or a tort has caused recoverable damage or, perhaps most pertinently, when considering whether the cause of a loss is to be found within a list of insured or excluded perils in a policy of insurance …. I make the point … to emphasize that the causal connection which is relevant in the context of consideration by an inquest jury of the addition of a neglect rider is, in my judgment, not the same as the causal connection for which one may look in the context of other, perhaps more familiar, enquiries. The touchstone in the present context is, I believe, the opportunity of rendering care, in the narrow sense of that word, which would have prevented the death …. That does not mean that a conscientious person would necessarily have done that which would have successfully prevented death. The question is whether he had the opportunity of doing something effective.”

22. In like vein, Sullivan J observed in R (Nicholls) v. HM Coroner for the City of Liverpool [2001] EWHC Admin 922 that "it is important not to read the Master of the Rolls' words on causation in Jamieson as though they were contained in an enactment, or to apply them in an over literal manner" (para 56). Nicholls concerned the death in custody of a man suspected of having ingested heroin. A police doctor had examined the deceased at about 7.30 pm and had recorded him as being fit to be detained but not fit to be interviewed. He had arranged to see him again the next morning. But the deceased died in the course of the night. The coroner called an expert, Dr Barry, who regarded this as a "no fault" situation. He refused to call Professor Redmond, whose opinion was that the police doctor himself should have checked the deceased an hour after the initial examination. Both experts referred to the existence of a drug, Naxolone, that can reverse the action of morphine poisoning.
23. Mr Blake, who acted in that case too for the claimant, submitted to the court in that case that the decision not to call Professor Redmond meant that no expert evidence was called on whether an antidote to morphine poisoning should be administered or on whether the administration of the recognised antidote "would most probably have prevented [the deceased] from dying from morphine overdose" (para 29). On causation he further submitted that "a clear and direct causal nexus is made out where lack of medical assistance deprived the deceased of a real opportunity of recovery. The question is not whether the lack of such attention was the only cause, but whether it was a material contributing cause" (para 36).
24. The court accepted Mr Blake's submissions, quashed the verdict of death by misadventure and ordered a fresh inquest. In relation to causation, Sullivan J, having observed that what was said in Jamieson was not to be read as if contained in an enactment, went on (paras 57-58):

“… I am unable to accept [counsel for the coroner's] submission that the intervening steps … represent sufficient breaks in the chain so as to prevent there being a 'clear and direct causal connection' between a failure to arrange to have a check made upon the patient and the patient's death.

There is no complex chain of events here. One is dealing with the consequences of failing to make a simple check. There is, in truth, no real dispute between Dr Barry and Professor Redmond as to what would have happened if Mr Nicholls' respiratory rate had been checked. They differ as to whether any doctor acting reasonably would have checked ….”

25. R (Dawson) v. HM Coroner for East Riding and Kingston upon Hull [2001] EWHC Admin 352 also related to a death in custody. The deceased had been left unconscious on the floor of the custody suite and had subsequently stopped breathing. An ambulance was then called but the deceased was dead by the time it arrived. The jury returned a verdict of unlawful killing, i.e. manslaughter by unlawful act or by gross negligence. Jackson J dismissed a challenge to the verdict. One of the issues was whether a reasonable jury could make a finding of causation. As to that, the judge set out a lengthy passage from the coroner's summing up (paras 45 et seq.) and pronounced himself satisfied that there was sufficient medical evidence to support a finding of causation on the basis which the coroner put to the jury. I shall set out a few passages in the coroner's summing up since Mr Blake relied on them in support of his submissions in the present case:

“… The negligence must have caused the death in the sense that it more than minimally, negligibly or trivially contributed to the death.

On the one hand, none of the experts can be sure that even if he had received the best possible immediate care in the custody suite he would have survived ….

On the other hand some experts, notably perhaps Professor Crane and to a lesser extent possibly Dr Carey, approached this problem - and problem it surely is - from a different direction ….

… It was [Professor Crane's] opinion that whatever the reasons for loss of consciousness, the position in which [the deceased] was placed hastened death significantly, and both these factors were more than minimal or negligible.

I suggest you ask yourselves this question, members of the jury, as you wrestle with this difficult concept of causation: If the experts cannot be sure that his condition was survivable, come what may when he arrived at the custody suite, can you in turn be sure, as a jury, that any hastening of the death you may find by omitting to place him in the recovery position and check his airway etcetera caused his death more than minimally, trivially or negligibly?

His death may have been hastened by his position but can you say that caused his death more than minimally …. Can you be sure that a slight hastening … can properly be classed as a contribution to his death that is more than minimal? That is for you to decide.”

26. Later in his judgment Jackson J said that he was unable to detect any difference between the approach to causation set out in Jamieson and the approach to causation in cases of manslaughter by gross negligence, though he observed that other judges, including Tomlinson J in R v. HM Coroner for Coventry, ex p. Chief Constable of Staffordshire, had taken a different view. It was not necessary, however, for him to decide the point.

The claimant's submissions on neglect

27. Mr Blake put the claimant's case primarily on the "failure" of the police to summon medical assistance earlier than they did. He submitted that it was open to the jury to find on the evidence that once the deceased was suspected to have heroin in his mouth and was not immediately expelling it, the police should have realised that they had a medical emergency on their hands and should have called for medical assistance. Such assistance should have been called by 15.00 at the latest, i.e. 8 minutes before it was actually called. Had the ambulance been called and arrived 8 minutes earlier than it did, there was a real possibility that the deceased's life would have been saved through the administration of the antidote to morphine poisoning. This would be a sufficient basis for a verdict of neglect. It is not necessary to show that he would have survived, only that the opportunity existed to do something effective. This, Mr Blake submitted, is supported by the judgments in Dawson, Staffordshire and Nicholls to which I have referred above.
28. Although putting the primary weight of his submissions on the timing of the request for medical assistance, Mr Blake referred to a multiplicity of other points. He put them forward primarily as part of the circumstances that made it imperative to call medical assistance promptly, but maintained a secondary reliance on them as amounting to a lack of care in their own right. In his oral submissions he focused on certain factors that may have contributed to the deceased's respiratory deficit, in particular positional asphyxia (to which the deceased was vulnerable by reason of his weight), the effect of the struggle and the positions in which the deceased was placed. He also referred, however, to the list of points in the written submissions to the coroner and repeated in the skeleton argument in this court.
29. Although there is a certain amount of duplication and lack of focus in them, I should set those points out: (1) ignoring the obvious and serious risk that the deceased may have been becoming unconscious or may have been unconscious as would have been apparent to any reasonable, sober and prudent person or getting into difficulties with his breathing; (2) ignoring the deceased's grunting, moans or groans by continuing to apply restraint to his person; (3) placing the deceased in a deleterious position which compromised proper breathing and could lead to restraint or postural asphyxia ("PA"); (4) ignoring their own training on the signs and symptoms of this condition of PA, in other words turning a blind eye to the deceased's condition which so changed; note in this regard the evidence of PS Cassells, that the changes in the deceased's condition were slow thereby suggesting that the police officers had time to act but failed to do so; (5) not taking any logical or remedial steps to help the deceased; no one was in overall control; it was a 'free for all'; placing the deceased in the recovery position, then taking him back out of it when his breathing had not improved; (6) ignoring signs that the deceased required obvious and urgent medical attention; (7) not even considering the risk of PA, this did not enter the mind of any police officer who gave evidence; (8) working on the possible false assumption that the deceased was being aggressive and violent whereas he may have been struggling to breathe; (9) failing to put the deceased and keep him in the recovery position prior to his collapse; (10) failing to commence timely CPR before the ambulance arrived; (11) making the assumption that the noises the deceased was making were 'normal breathing'; (12) failing to render any care or assistance to the deceased until it was too late; (13) the failure of any officer to take charge of the situation until it was too late; (14) failing to render any first aid to the deceased until it was too late; (15) failing to summons any medical assistance until it was too late.
30. In support of his submissions Mr Blake took me through various parts of the transcripts of evidence at the inquest. Ann Binns, a paramedic with the first ambulance to arrive, described the deceased as showing no vital signs. Susan Walcott, a paramedic with the second ambulance, described an unsuccessful attempt to administer Meloxane, "a reversal agent" or antidote for heroin overdoses, by means of an injection to the neck. She said that "usually it works within a matter of seconds, but obviously in each situation it's different". Thus, Mr Blake submitted, if the ambulance had arrived earlier there was a real possibility that Meloxane would have been effective. There was conflicting evidence as to the deceased's condition in the minutes before the ambulance arrived, but there was evidence from the police that he was breathing towards the very end of the sequence, just before the ambulance arrived.
31. As to the experts, Mr Blake referred first to their evidence concerning positional asphyxia, which was accepted e.g. by Dr Cary as a factor which can cause or contribute to sudden death and which he described as arising where a person is placed in a position (normally the prone position) where breathing may be compromised. He took me to passages in the evidence of Professor Forrest, the toxicologist, who said that the time between ingestion of heroin and death was "less than two hours and probably a lot less than that": in this case, Mr Blake observed, the deceased would have needed to survive only about 15 minutes if the ambulance had been called promptly. In another part of his evidence Dr Forrest was asked what one should do if faced with a situation where a person has wraps in his mouth. The tenor of his evidence was that the first thing to do is to get the wraps out, using force if they do not spit them out by consent; and once you have got them out, you have to call the paramedics. He summarised the position as follows: "if you have got somebody who you suspect of having drugs in their possession, you suspect they've put those drugs in their mouth then, one, get it out of their mouth and, two, get help very rapidly because they can go off very quickly". Mr Blake submitted that, consistently with that evidence, the police ought to have called for the ambulance after the initial attempt to get the packages out of the deceased's mouth were unsuccessful. He accepted that Professor Forrest might have been asked more questions about causation, but submitted that that was not necessary to enable the jury to arrive at a verdict.
32. Mr Blake did not take me to the evidence of Mr Malik Khan, who maintained that the deceased was kept in the prone position throughout, that he was not being violent as the police alleged and that the use of force was unjustified. It seems plain, though Mr Blake did not concede this, that that evidence was so much in conflict with the main body of evidence given at the inquest that reliance could not safely be placed upon it.
33. Mr Blake did, however, show me the evidence of PS Cassells and DC Berry, two of the police officers involved from the outset. I do not think it sensible to set out or to seek to summarise the lengthy passages to which I was taken. A possible inference from that evidence, Mr Blake submitted, was that the police had observed the paste on the deceased's lips and realised that a package in his mouth had split by or soon after 15.00. The implications of this were not lost on them, yet there was a delay until 15.08 before medical assistance was summoned. The evidence also showed the various positions in which the deceased was kept during the course of the incident and touched on what was or was not attempted by way of medical assistance pending the arrival of the ambulance.

The submissions of the other parties

34. Mr Kilcoyne, for the coroner, submitted that the coroner directed himself correctly by reference to Jamieson and that his ruling, if perhaps too short, was correct. Mr Kilcoyne had prepared a helpful set of written observations on the transcript evidence. He referred to independent evidence in support of the police evidence that the deceased had said he had a knife. He identified passages in the evidence of DC Witchard, DC Berry and PC McDermott in which each said that an ambulance was called as soon as they noticed the paste or signs of leakage of the heroin. He reminded me of Professor Forrest's evidence that one should first get the drugs out of the mouth and then call an ambulance. The police tried to get the drugs out, but the deceased put up resistance and continued to do so until shortly before the ambulance arrived. On the thrust of the evidence before the coroner, it was submitted, there was no evidence to support a gross failure to provide or procure medical assistance.
35. As to causation, Mr Kilcoyne submitted that there was insufficient evidence that calling an ambulance earlier would or could have saved the deceased. Whether there was a greater chance that the antidote would have worked earlier would have required expert evidence. It is not enough to rely on the evidence of a paramedic that the antidote only takes a few seconds. Most importantly, the deceased was found to have died from the effects of a cocktail of drugs, both heroin and cocaine. There was no evidence as to whether the antidote would benefit a person in those circumstances. Neither Professor Forrest nor the pathologist was questioned about this. It would be quite improper, it was submitted, to allow a jury to make an inference on a matter that required medical expertise and had not been explored in the expert evidence.
36. Mr Macleod, appearing for the chief constable and also the individual officers involved, adopted the submissions for the coroner. He submitted that there was a risk of the focus of the present case becoming too narrow. There were a number of other relevant features that needed to be taken into account. First, the deceased displayed an irrational determination to resist all attempts to remove the drugs from his mouth. The realistic imperative was to subdue him and remove the drugs before any secondary care could be undertaken. Yet it was only very shortly before the ambulance arrived that he lapsed into unconsciousness and the drugs were removed and he was then put into the prone position. There was conflicting evidence as to whether CPR was started or was about to be started when the ambulance was seen to arrive. But none of that matters, because it is clear that there was no effective opportunity for secondary care until just before the ambulance arrived.
37. Secondly, submitted Mr Macleod, before any secondary care was possible it was not only necessary to extract the drugs and remove the residue from the deceased's lips, but also to ensure that he was not armed with a knife. The evidence was that a search was not possible until after he had declined into a state of collapse. Thirdly - and picking up Mr Kilcoyne's submission - there was no evidence that earlier administration of the antidote would have made any causative difference.
38. In relation to those points on causation, reliance was also placed upon a passage in Professor Forrest's evidence about the rapidity of absorption of the drugs through the lining of the mouth. When asked how quickly potentially someone could die from the combination of relevant factors (degree of absorption of the drugs and the exertion of the situation), Professor Forrest replied: "within a matter of minutes".
39. As to the question of fault, Mr Macleod submitted that what happened was incapable of amounting to a gross failure. It is unrealistic to suggest that an ambulance should be called whenever a person is suspected of having drugs in his mouth, which is a commonplace method of storage by dealers. The officers acted correctly in trying first to get the drugs out of the mouth. The real urgency arose once leakage of the drugs was observed. But the evidence of all the officers was that an ambulance was then called immediately. However their individual evidence fits into the overall chronology, internally the evidence of each was clear on the point.
40. Mr Macleod took me to a number of passages in the evidence of DC Witchard, DC Berry, PS Cassells and PC Cuthbert in support of the above submissions and in relation to the issue of positional asphyxia. He also pointed to confirmatory passages in the evidence of Helen Reilly, a scenes of crime officer but a civilian employee.
41. In reply, Mr Blake submitted that the extent of the struggle, especially in the later stages of the incident, was a matter of dispute and was a question of fact for the jury. It was extravagant to suggest that no co-operation would have been offered by the deceased if the ambulance had arrived earlier. Every minute counted. The total picture suggested that the deceased would have been alive if the ambulance had arrived earlier and that the injection of the antidote would have operated within seconds to protect his life. It was also for the jury to determine matters relevant to the degree of fault, such as when the package burst and whether, even prior to that, the risk of its bursting was apparent and should have led the officers to call an ambulance immediately.

Conclusions

42. I shall deal first with causation since that was the basis upon which the coroner reached the decision as recorded in his preliminary ruling.
43. I am satisfied that the coroner was right to reach the conclusion he did. In my judgment there was no evidence upon which the issue of causation could safely be left to the jury for the purposes of a verdict of neglect. I accept the submissions advanced on behalf of the coroner and the police and I rely in particular on the following considerations:

i) I accept that what was said in Jamieson about the need to establish "a clear and direct causal connection" between the alleged conduct and the death is not to be read or applied in an over-literal manner and that a jury is entitled to take a commonsense approach, making appropriate inferences. I also accept that it is sufficient to establish that the conduct made a material contribution to death. But it is still necessary to establish causation on the balance of probabilities. It seemed to me that Mr Blake's submissions tended to slide away from balance of probabilities to "real possibility", which is not the correct standard of proof. That was particularly clear when Mr Blake submitted that the possibility that the deceased's life would have been saved through the administration of the antidote if the ambulance had been called earlier was a sufficient basis for a verdict of neglect.

ii) The authorities to which Mr Blake took me do not support the way in which he sought to express the point. The direction in Dawson, approved by this court, is certainly an illustration of the point that causation can be established without showing that the deceased would have survived. But that is because it can be established by showing in the alternative that death, although inevitable, was hastened by the conduct in question. In either case, as the direction made clear, it is necessary to establish causation to the requisite standard of proof (in that case the criminal standard, in the present context the civil standard). The case does not support the proposition that causation can be established simply by showing that there was an opportunity to render care. It must be shown to the requisite standard of proof that care would have been rendered and that it would have saved or prolonged life.

iii) So too in the Staffordshire case Tomlinson J stated that the touchstone is "the opportunity of rendering care ... which would have prevented the death" (my emphasis). That is not the language of "possibility" that the life would have been saved. The same applies in my view to what he went on to say about "the opportunity of doing something effective". This must mean an opportunity of doing something that would probably have been effective, rather than the opportunity of doing something which simply might have made a difference.

iv) I note that in Nicholls Mr Blake himself expressed his submissions in terms of whether the administration of the antidote "would most probably have prevented" the death from morphine overdose. The subsequent reference to depriving the deceased of "a real opportunity of recovery" and "a material contributing cause" must be seen in that light. There is nothing in the court's conclusions to suggest any acceptance that "real opportunity" is in itself the correct test or any watering down of the standard of proof. As Sullivan J observed, there was no real dispute between the experts as to "what would have happened" if the deceased's respiratory rate had been checked; the difference lay in whether it should have been checked. That is entirely consistent with the application of the normal standard of proof to the issue of causation.

v) In the present case there was no exploration in evidence of whether it would have made a difference, in terms of saving or prolonging life, if the ambulance had arrived up to 8 minutes earlier. I reject as untenable any suggestion that it was open to the jury to infer that it would probably have made a difference. The evidence as to the antidote came only from a paramedic who, whilst saying that it usually works within a matter of seconds, went on to say "obviously in each case it's different". Evidence from such a source was in any event insufficient. Whether the antidote would probably have made a difference if administered earlier (or even, I would add, whether it might have made a difference if administered earlier) required evidence from the medical experts. Such evidence would have had to take account of the fact that the deceased had taken a combination of heroin and cocaine. It would also have had to take account of the evidence as to the deceased's condition in the minutes before the ambulance arrived, including the speed of his decline into unconsciousness. Any attempt by the jury to reach conclusions on this issue in the absence of such evidence would be based not on legitimate inference and common sense but on impermissible speculation.

vi) If this issue were to be left to the jury, it would also have been necessary to explore the practicalities of administering the antidote earlier. I acknowledge Mr Blake's point that there was a conflict of evidence as to the extent to which the deceased was struggling in the later stages. But whatever conclusions the jury reached on the extent of the struggle, they had no evidential basis for determining in the light of those conclusions whether the paramedics would have been able or (given the possibility that the deceased had a knife) willing to administer the antidote if they had arrived earlier.

vii) As to the miscellany of matters relied on apart from the omission to summon medical assistance earlier, nothing in the evidence shown to me begins to provide a basis upon which a reasonable jury properly directed could conclude that the conduct in question contributed materially to the death.

44. Even if, contrary to my finding, the coroner had erred in relation to causation, I would still have held that he was right not to leave a verdict of neglect to the jury. That is because, in my judgment, no reasonable coroner could have concluded that there was evidence upon which a reasonable jury could find a sufficient level of fault to justify a verdict of neglect. Again I accept the submissions on behalf of the coroner and the police. Factors of particular relevance are:

i) It could not reasonably be concluded on the evidence that the failure to call for an ambulance before the package in the deceased's mouth was known or believed to have burst was a "gross failure" to procure medical assistance. The best that the claimant could do was to point to the evidence of Professor Forrest; but that evidence did not support the claimant's case because the tenor of what Professor Forrest said was that the first thing the officers should have done was to try to get the packages out of the mouth, which is precisely what they tried to do. The suggestion that an ambulance must be called whenever a suspected drug dealer is known or believed to have packages in his mouth but is refusing to spit them out strikes me as offending against common sense. In any event it would require better evidence to substantiate it than was given at this inquest.

ii) The point at which a real urgency arose and an ambulance needed to be summoned was when a package was known or believed to have leaked. Each of the relevant police officers gave evidence, however, that an ambulance was called immediately at that point. Their evidence was internally clear and categoric on this point; and whatever difficulties there may be in fitting the evidence of each into the overall chronology, there is no basis upon which the jury could reasonably conclude that the signs of leakage had been spotted significantly earlier than the time when the ambulance was called.

iii) On the evidence I have seen I am wholly unpersuaded that any of the other conduct relied on by the claimant, e.g. in relation to the position in which the deceased was held at various times or as to the assistance given or not given to him prior to the arrival of the ambulance, was capable of amounting to neglect.

45. I am very aware of the fact that this court cannot have as good a picture as the coroner of the overall effect of the evidence. That, however, serves only to reinforce my conclusion that there is no basis for interfering with the coroner's decision. In this case I have reached the same conclusion as the coroner with regard to causation on my own assessment of the evidence I have seen. Bearing in mind, however, that the function of this court is to review the coroner's decision and that the court will at the very least accord, as Mr Blake conceded, a degree of deference to the coroner's assessment of the evidence, I would not have interfered with the coroner's decision unless I had been satisfied that his assessment of the evidence was wrong.
46. I have considered carefully how to give effect to my conclusion. Having heard full argument, I nonetheless doubt whether the claimant has an arguable case justifying the grant of permission. But since I have dealt with the case as fully as on a substantive hearing, I have decided that procedurally the better course is to grant permission but to dismiss the claim. In the event that the claimant wishes to pursue the matter in the Court of Appeal, it can be way of an appeal against the substantive decision rather than against the refusal of permission. I make clear, however, that in my judgment an appeal has no real prospect of success and that I would refuse permission to appeal.
47. I would hope that the inquest can now be completed without further delay.
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MR. JUSTICE RICHARDS: For the reasons given in the judgment handed down, this claim is dismissed.

MR. KILCOYNE: My Lord, on behalf of the respondent, the Coroner, I would ask for a costs order against the claimant. I understand that the claimant is subject to a legal services certificate and is publicly funded. I would ask for the order.

There is also a second point I would ask your Lordship to rule upon and that concerns the costs of the transcribed evidence. It seems that a dispute has recently arisen as to whether the claimant will actually pay a proportion of the transcribed evidence. The costs to date are approximately £8,000 for the evidence before your Lordship. First of all, there may be some doubt, and I have not discussed this with Mr. Thomas, as to whether the claimant was fully covered by her legal aid certificate to include the costs of the transcribed evidence. If she was, there should not be a problem. But I suspect that the fact that a dispute has arisen suggests that the certificate may not cover that. There is a brief selection of correspondence which I can put before your Lordship which sets out the coroner's position.

MR. JUSTICE RICHARDS: Yes. Tell me what kind of ruling you seek and that I am able to make. If I make an order that the claimant pays the defendants' costs of the judicial review claim, subject to the proviso to take account of the claimant's legally aided status, what more is called for? Either you have incurred costs that are recoverable in principle, pursuant to an order of the sort you have already sought, or they are not.

MR. KILCOYNE: Yes, well, I raise the point because there is apparently a dispute on this point.

MR. JUSTICE RICHARDS: The transcript was ordered by the claimant?

MR. KILCOYNE: Well -- what happened was -----

MR. JUSTICE RICHARDS: Yes, I am told it was not.

MR. KILCOYNE: Initially the claimants' solicitors indicated they only wanted a copy of the actual decision.

MR. JUSTICE RICHARDS: Yes.

MR. KILCOYNE: However, your Lordship will appreciate that when this matter came before the court in December, it was in effect adjourned because all the parties agreed that it would be necessary to have all the transcribed evidence before the court.

MR. JUSTICE RICHARDS: Given the absence of any other assistance to the court in relation to the evidence, for example because it was prior to a summing up and one did not have the summing up, I am sure that is right. I can certainly indicate that I found the transcript necessary for the purposes of reaching a reasoned judgment in this case.

MR. KILCOYNE: Yes, basically the solicitors acting for the coroner asked for a contribution from the claimants' solicitors and they are saying they are only going to contribute towards 50% of the costs of the transcribed evidence of the decision, and not the evidence generally.

MR. JUSTICE RICHARDS: Well, I come back to it. What ruling are you seeking from me? Are you inviting me to rule on who actually incurred these costs in the first place by requesting or ordering the transcript?

MR. KILCOYNE: Well, if this is going to remain a dispute, I invite your Lordship to do that.

MR. JUSTICE RICHARDS: Is not this a matter to be dealt with as part of a detailed assessment?

MR. KILCOYNE: That is one option. It could be dealt with in that way.

MR. JUSTICE RICHARDS: It is rather difficult for me to determine this one matter, and the proper course, if the costs are going to be subject to detailed assessment, is for them to be examined in that context and, if there is a continuing dispute, it can be appealed. I do not think it is appropriate for me to get involved in determining at this stage questions of who incurred costs and whether they were reasonably incurred. That is not my function, save in a summary assessment, which is not the case here.

MR. KILCOYNE: Can I indicate I was instructed to raise the point because it was becoming a dispute and I think your Lordship is correct that if your Lordship grants the defendant the normal costs order it probably can be resolved ultimately in a detailed assessment if there is a dispute.

MR. JUSTICE RICHARDS: Mr. Thomas, what do you say first about the application for costs? You cannot oppose that.

MR. THOMAS: And I do not.

MR. JUSTICE RICHARDS: And the correct order is an order that the claimant pays the defendant's costs in an amount to be determined by a costs judge. Is that the way it is dealt with for the legal aid order? I will turn to the Associate. (After a pause): The standard wording is the determination of the amount of costs to be postponed -----

MR. THOMAS: Pending a legal services assessment of the claimant's ability to pay.

MR. JUSTICE RICHARDS: Whatever the precise wording, there will be a standard form and we adopt that. That is the costs order which, as it seems to me, must follow in this case. So far as the transcript point is concerned, do you have anything to say?

MR. THOMAS: My Lord, no. Your position is absolutely right. This is something that should be sorted out on detailed assessment. It is not appropriate for your Lordship to deal with that here and now. There is correspondence in relation to this dispute. I can take your Lordship to it if your Lordship wishes. But I say this should fall within the normal order in relation to the applicant's Legal Services Commission status. I do not have anything to add, unless you wish to hear from me on that. The only other thing I ask for is a Legal Services Commission assessment.

MR. JUSTICE RICHARDS: Yes, detailed assessment for funding purposes.

MR. MACLEOD: My Lord, on behalf of the Interested Party, there is no second application for costs.

MR. JUSTICE RICHARDS: Thank you very much for making that clear. Thank you all.

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