QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| The Queen (on the application of Khan)||Claimant|
|- and -|
|HM Coroner for West Hertfordshire|
Chief Constable of Hertfordshire Constabulary
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Paul Kilcoyne (instructed by Hertfordshire County Council Legal Services Department) for the Defendant
Mr Duncan Macleod (instructed by Hertfordshire Force Legal Services Department) for the Interested Party
AS APPROVED BY THE COURT
Crown Copyright ©
Mr Justice Richards:
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.
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.
Relevant authorities on neglect
(9) Neglect in this context means a gross failure to provide adequate nourishment or liquid, or provide or procure basic medical attention or shelter or warmth for someone in a dependent position (because of youth, age, illness or incarceration) who cannot provide it for himself. Failure to provide medical attention for a dependent person whose 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.
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.
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 .
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.
The claimant's submissions on neglect
The submissions of the other parties
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.
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.
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.