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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Stanley, R (on the application of) v Her Majesty's Coroner for Inner North London [2003] EWHC 1180 (Admin) (29 April 2003)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2003/1180.html
Cite as: [2003] EWHC 1180 (Admin)
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand London WC2 |
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B e f o r e :
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| THE QUEEN ON THE APPLICATION OF STANLEY | (CLAIMANT) | |
| -v- | ||
| HER MAJESTY'S CORONER FOR INNER NORTH LONDON | (DEFENDANT) |
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Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR M EGAN (instructed by Martin Merry & Co) appeared on behalf of the Police Constable Fagan and Inspector Sharman as INTERESTED PARTY
MS S LEEK (instructed by Directorate of Legal Services, Metropolitan Police) appeared on behalf of the Commissioner of the Metropolitan Police as INTERESTED PARTY for delivery of judgment only
MS A PROOPS (instructed by Legal Services London Borough of Camden) appeared on behalf of the DEFENDANT for delivery of judgment only
____________________
Crown Copyright ©
- On 22nd September 1999 Mr Henry Stanley was shot by Inspector Sharman and Police Constable Fagan ("the officers"), who were then serving as firearms police officers of the Metropolitan Police Firearms Unit SO19. Earlier on that day a 999 call had been made to the police services by a caller, who had described an Irishman carrying a sawn-off shotgun wrapped in a bag who was then in the Alexandra Public House in Hackney. That person was in fact Mr Stanley, who had been returning from his brother's home carrying a coffee table leg which had been repaired by his brother. On his way home he decided to stop at the Alexandra Public House to buy some lemonade. While he was there a member of the public mistook, first, Mr Stanley's Scottish accent for an Irish accent and, second, the chair leg that he was carrying for a gun. The police were then called, with the tragic results that I have outlined.
- An inquest into the death of Mr Stanley was held between 17th and 21st June 2002 ("the June 2002 inquest"). It was conducted by Her Majesty's Coroner for Inner North London, Dr Stephen Ming T Chan ("the Coroner") and at its conclusion the jury recorded an open verdict. Mrs Irene Stanley ("the claimant"), the widow of Mr Stanley, now seeks a declaration that the June 2002 inquest into the death of Henry Stanley did not constitute a sufficient inquiry for the purposes of domestic law and/or Article 2 of the European Convention of Human Rights ("the Convention"). Permission to apply for judicial review was granted by Harrison J, who also ordered expedition of the hearing of this application.
- The Coroner is the defendant to this application for judicial review. On 7th March 2002 his solicitor wrote to the Administrative Court Office, explaining that the Coroner "has since retired and despite a number of attempts to contact him and obtain his instructions in this matter it has not been possible to do so and in view of this the present Coroner, Dr Andrew Reid, does not intend to make any additional representation as he cannot add anything more materially to the case". In that letter the defendant's solicitor stated that they "do not propose to participate in these proceedings". That explains why the defendant Coroner has taken no further part in the proceedings and why he was not represented in front of me except when judgment was delivered. No evidence was adduced on his behalf.
- The Commissioner for the Metropolitan Police, who was the employer of Inspector Sharman and Police Constable Fagan, was joined as an interested party. In his Acknowledgment of Service he indicated that he did not intend to contest any of the relief sought by the claimant. He too was only represented when I delivered judgment. The officers were also both joined as interested parties. They contest certain aspects of the claim and they, as well as the claimant, have been the only parties who have been present or have been represented at the hearing of the claimant's application for judicial review.
- I must now explain the claimant's complaints together with the stance taken by the officers on each issue. It is appropriate to deal with the claimant's complaints in the following order, namely that the defendant Coroner at the June 2002 inquest:
- Prior to the hearing of this application, the officers had indicated that they would not contest three of the allegations relied upon by the claimant in support of their claim to quash the verdict at the inquest. Those related to the previous conviction issue, the CPS recommendation issue and the reasons issue. The officers in their skeleton arguments served on 20th March 2003 in preparation for the hearing before me contended that the Coroner was entitled to reach his decision on the expert evidence issue. Shortly before the hearing in front of me the officers changed their stance as, first, they then accepted the claimant's complaint on the expert evidence issue and, second, they then agreed that the verdict at the June 2002 inquest would have to be quashed and that there would have to be a new inquest.
- When this result became clear and agreed as being the correct outcome by counsel for the officers and the claimant respectively, Mr Michael Egan and Mr Tim Owen QC, I asked both counsel whether it was necessary or worthwhile for me to consider the fifth and sixth issues, as they depended entirely on the evidence that was given at the June 2002 inquest. I was concerned that if experts were to be called by the Coroner at the next inquest, then inevitably the evidence before that jury would be or was very likely to be very different from that adduced before the jury at the June 2002 inquest. Thus, my provisional view was that as any decision by me on the fifth and sixth issues (namely the unlawful killing and neglect verdict issues) was sensitive to and based on the evidence given at the June 2002 inquest, there would have been little assistance to the Coroner on the second inquest in having a judgment from me relating to these issues. In other words, at the next inquest the evidence would probably be so different that any views that I might express in this judgment on the verdicts that should have been left to the jury in the light of the evidence then adduced at the June 2002 inquest would be of no value or interest. I adjourned the hearing for a few minutes so that counsel could take instructions, and when they had done so they agreed that for the reasons that I have outlined that there was no point in either of them making submissions on the fifth and sixth issues, namely the unlawful killing and the neglect verdict issues.
- At the conclusion of the hearing I ordered, first, that the verdict at the June 2002 inquest should be quashed and, second, that there should be a new inquest conducted by a different coroner, stating that on a subsequent occasion I would give my reasons for those orders, which I now do. I was encouraged by all parties to set out my reasons for upholding some of the criticisms of the Coroner in the hope that the same errors would not be made by a different coroner at the second inquest or by any other coroner. In fairness to the defendant Coroner, I should repeat that I have not received any evidence or heard any submissions on his behalf as, for the reasons I have already explained, he has taken no part in this application for judicial review.
- The Coroners Act 1988 provides that:
- The Coroners Rules 1984 provide that:
- Article 2 of the Convention, which is of importance on this application, provides that:
- Before considering the issues, it is necessary to stress a number of features of an inquest, which are relevant to this application for judicial review. The coroner performs an inquisitorial role at an inquest as he calls evidence, but at the June 2002 inquest, it was the jury which acted as the fact finder as it had to return its verdict after having considered all the evidence and the directions given by the Coroner. The coroner is responsible for all matters of law and these include determining what evidence is relevant. With this general introduction, and in the light of Article 2 of the Convention, I turn to explain some important features that have to be borne in mind in determining the roles and duties of the coroner when he is conducting an inquest into a death caused by police, as he was doing in this case.
- Those features are that:
- It is necessary to set out the circumstances in which the evidence of the previous convictions of the deceased was disclosed to the jury at the June 2002 inquest. The Commissioner had quite properly refused to divulge to the officers details of the deceased's previous convictions. Counsel for the officers then sought a direction from the Coroner that any convictions of the deceased, which were "relevant and material", should be disclosed. This request was made in the form of a written note dated 18th June 2002, which was circulated to the Coroner and to all other parties but not to the jury. On 19th June 2002 the Coroner sent a message back to the parties' legal advisers but not to the jury saying that he, the Coroner, had determined that "the answer is no". This was apparently understood to mean that either there were no relevant and material convictions of the deceased which called for disclosure or that, in any event, the application for disclosure was refused.
- On 20th June 2002 the Coroner called as a witness Detective Chief Inspector Brian Boxall ("DCI Boxall") of Surrey Constabulary, who was the officer in charge of the investigation into the shooting carried out for the Police Complaints Authority. The Coroner asked him a number of questions relating to the incident in which Mr Stanley died. The Coroner then without any prior notice to any party asked DCI Boxall in relation to Mr Stanley, "is it right that he had criminal records in the past?" (page 139).
- After DCI Boxall had said in reply that Mr Stanley had a criminal record, he asked the Coroner if he was to give details of spent convictions. At that point Mr Owen QC, who was then, as now, representing the family of Mr Stanley, interrupted to explain that there was a procedure in relation to spent convictions. The Coroner replied by saying "What is relevant in my inquiry is a matter for me". After Mr Owen had said "I see", the Coroner asked DCI Boxall about a conviction in 1993 for causing grievous bodily harm with intent. After DCI Boxall had given some details about this, Mr Owen tried to raise the relevance of that conviction again, but he was told by the Coroner to sit down on two occasions before the Coroner said that it was not appropriate for Mr Owen to make any submissions.
- DCI Boxall then gave evidence about further convictions recorded against Mr Stanley going back to 1963. He referred to a further conviction for armed robbery in 1974 in which a sawn-off shotgun had been used but three people were actually involved, and because of "the age of the conviction" it was not possible to give details of Mr Stanley's involvement.
- It is noteworthy that before Mr Stanley was shot, the officers were unaware of his identity or of these previous convictions. Thus, these convictions were not relevant in justifying or explaining their behaviour in shooting Mr Stanley.
- Mr Owen contends that these convictions would not have been of any relevance or probative value to the jury, especially as it was not known if Mr Stanley had himself used a shotgun in the robbery in the 1970s.
- He explained that the role of the Coroner, especially in the light of Article 2 of the European Convention, was "under domestic law not to act in a way which was incompatible with a Convention right subject to section 6(2)" (Amin paragraph 91 per Lord Woolf CJ). Thus the Coroner must ensure that in the circumstances a proper investigation was carried out "with the utmost rigour" into the circumstances leading up to Mr Stanley's death. The jury had a very important role in this investigative process as it was their verdict which would constitute the result of this rigorous process as it would state the cause of Mr Stanley's death. Thus, the Coroner had to ensure that the jury reached their verdict, first, in the light of his correct directions of law and, second, in the light of all the relevant evidence, namely the evidence which could properly help the jury to determine what verdict should be returned by it or, in other words, what verdict that it considered was the appropriate cause of Mr Stanley's death.
- To my mind, the evidence of Mr Stanley's previous convictions was irrelevant for three overlapping reasons. First, the officers did not know that Mr Stanley had previous convictions. Thus, the existence of these convictions could not have influenced the officers' decision to shoot or any of their acts or omissions immediately prior to Mr Stanley's death. Second, in any event the basis of the robbery conviction is not clear while the role of Mr Stanley in this venture is uncertain. Thus, the jury did not have any clear facts on which it could reach any conclusion. At best, they had to guess what Mr Stanley's role was in that robbery, and that form of reasoning is not permissible. Third, even if Mr Stanley had used or had been involved with the use of a sawn-off shotgun, there is an unjustified and impermissible logical jump for it to have any relevance on the issue at the inquest, which was whether many years later he feigned holding the chair leg as if it was a gun.
- Thus, the evidence of the previous convictions was irrelevant at the June 2002 inquest, but that finding raises a further important question of whether its admission as evidence has any effect on the effectiveness of the jury in satisfying the functions of the state's duty to investigate "with the utmost rigour" the death of Mr Stanley. I have concluded that the value of the jury in performing that significant function was jeopardised for two important interlocking reasons. First, it is necessary at this juncture to recall and repeat the important functions of an inquest in this type of case in the light of Article 2 of the European Convention on Human Rights are, in the words of Lord Woolf CJ in Amin, "to minimise the risk of future like deaths; to give the beginnings of justice to the bereaved; to assuage the anxieties of the public". Those functions are achieved by only permitting relevant evidence to be adduced. As I have explained, the evidence of Mr Stanley's convictions does not fall into that category. Second, the admission of this evidence also has the additional and disturbing vice of being prejudicial to Mr Stanley as it gave or it was capable of giving the impression to the jury that he was a criminal. This is likely to have influenced the jury to have lowered their opinion of Mr Stanley and to have led the jury to be more likely to excuse or to justify the decision of the officers to shoot Mr Stanley in the way that they did. Indeed, both those features undermined the functions that the inquest should have performed, where, as in this case, the police have been responsible for his death.
- For the purpose of completeness, I should add that I did not hear submissions on the effect of the Rehabilitation of Offenders Act 1972, but its relevance to adducing evidence of the old convictions of Mr Stanley merited consideration by the Coroner before asking DCI Boxall about them.
- A further and important point arises out of the way in which the evidence of Mr Stanley's previous convictions was adduced because the Coroner was criticised for the way he asked DCI Boxall questions about Mr Stanley's previous convictions without giving any previous warning to representatives of the parties present at the inquest. To my mind, in cases in which in order to ensure compliance with Article 2 of the Convention a rigorous investigation is required, then, as a general rule, it is incumbent upon a coroner who wishes to adduce evidence of previous convictions that before this evidence is given to notify the parties at the inquest of his intention to do so.
- Such notification should be done in the absence of the jury so that the coroner could then hear representations before finally deciding whether to permit the evidence of the previous convictions to be adduced. In reaching that decision, the coroner would have to bear in mind his obligation, as I have already explained, to carry out an investigation of the utmost rigour for all to see. This exercise entailed the jury only hearing relevant evidence which would or might enable them to deliver their verdict in the light of the relevant evidence. The Coroner was therefore obliged to carefully consider whether this evidence of previous convictions of Mr Stanley had probative value in the light of its prejudicial effect as part of his duty to construe his obligations in a way compatible with the Convention rights of the claimant.
- In this case the Coroner failed to carry out an exercise of hearing counsel's submissions and then determining in the light of those submissions whether the admission of the evidence of Mr Stanley's convictions achieved the important aims of the inquest in a case in which Mr Stanley had died as a result of actions by agents of the state. Mr Egan agrees that the Coroner erred by permitting evidence of previous convictions to be adduced without hearing argument. Therefore, I consider as justified the complaint of Mr Owen on this issue.
- While DCI Boxall was giving evidence at the June 2002 inquest, and after he had given details of previous convictions, he was immediately asked by the Coroner if there had been consideration given to prosecuting the officers by the CPS. This question was put by the Coroner without him having given any prior notice of his intention to do so to any of the parties represented at the inquest. Mr Owen again objected on the grounds that this question was not relevant but he was told by the Coroner to sit down on two occasions. The Coroner did not allow Mr Owen to address him and he merely stated that he noted Mr Owen's objections.
- In answer to the Coroner's questions, DCI Boxall then told the jury that a very extensive inquiry had been conducted in which just over 700 statements had been taken. They had then been submitted via the Police Complaints Authority to the CPS, who had considered whether prosecutions could be brought for offences such as murder, attempted murder, inflicting grievous bodily harm with intent and manslaughter by gross neglect. DCI Boxall told the Coroner and the jury that the CPS had concluded that "there was insufficient evidence to justify the institution of criminal proceedings against either officer in relation to any of these offences". He added in reply to a further question that there were no other proceedings pending.
- Mr Owen contends that this was a serious error on behalf of the Coroner. The officers accept that the Coroner should not have asked about the result of the CPS's enquiries. The acid test for appraising the Coroner's decision to ask this question was whether it was fair bearing in mind the three interlocking aims of the inquest outlined by Lord Woolf CJ in Amin, which I have described. There are four interconnected reasons why I have concluded that the Coroner's questioning about the police enquiries failed to comply with those aims, that it was unfair and that it should not have occurred.
- First, the jury was bound to have been greatly influenced in its decision-making process by the fact that, as the result of the very substantial enquiries conducted by the police, no prosecution of the officers was to be brought and that this indicated an absence of culpable criminal behaviour on the part of the officers. So this knowledge of the decision of the CPS would or might well have prevented, deterred or influenced the jury in performing its duty, which was to determine its verdict in the light of the evidence before it and not in the light of the view of the CPS.
- Second, any view of the CPS about a possible prosecution before an inquest is held must be regarded as a provisional view and it should have been described as such at the inquest. Indeed, a verdict of unlawful killing at the inquest would mean that a prosecution would then be brought. Lord Bingham CJ explained the effect of a jury's verdict of unlawful killing, implicating a person who is clearly identified, who is living and whose whereabouts are known, is that "the ordinary expectation would naturally be that a prosecution would follow" - R v Director of Public Prosecutions ex parte Manning and Melbourne [2001] QB 230, paragraph 33.
- A similar approach was advocated more recently in R (Rupert and Sheila Sylvester) v Director of Public Prosecutions (unreported, 21st May 2001) by the Divisional Court, when Lord Woolf CJ specifically adjourned a hearing of a judicial review application of a decision by the Director of Public Prosecutions not to prosecute a police officer for causing a death until after the conclusion of the inquest into the deceased's death. He explained that there were a number of reasons for this decision of which one of relevance to the present application was that: "Secondly, it would enable the matter to be reconsidered by the Director of Public Prosecutions after the conclusion of the inquest when he will have had an opportunity to take into account what occurred during the inquest."
- Indeed, in this case I understand the view expressed by the CPS that there was insufficient evidence to justify the institution of proceedings was provisional would be reconsidered at the conclusion of the inquest. Even if that was not the case, the Coroner must have appreciated that the view of the CPS was only provisional for the reason explained by Lord Bingham in the passage that I have quoted. Thus, a third objection to the course adopted by the Coroner was that he erred by not explaining the provisional nature of the CPS's conclusion to the jury after the evidence about the result of the CPS's enquiries had been adduced in evidence.
- A fourth valid objection to the course adopted by the Coroner is that even if there were a strong case for considering that the view of the CPS was relevant and was material to the jury's task, this evidence might have had such an effect on the jury that the views and submissions of the parties should first have been obtained by the Coroner in the absence of the jury, and then those submissions should have been considered by the Coroner before reaching a decision on whether to permit it to be adduced.
- By failing to adopt this course, I consider that the Coroner made an error in the sense that potentially prejudicial information was put before the jury and that this would have been likely to have influenced them to exonerate the officers. This is of some importance because the jury could have determined that the death of Mr Stanley could have been the result of criminal offences for which either or both of the officers could be criminally liable.
- Mr Owen contends that the Coroner also failed to give any reasons for his rulings at the inquest as he did not inform any of the parties or their legal representatives of his decision on which verdicts to leave to the jury or to give any reasons for his decision.
- The Coroner had heard submissions by counsel as to what the appropriate verdicts were for the jury to consider, but it was not until the Coroner actually directed the jury that it became apparent which verdicts he intended to leave to them. This was a decision of considerable importance for the Coroner because it effectively prevented the jury from reaching verdicts on those matters which he had decided not to leave to them. Unfortunately the Coroner did not explain why he had left certain verdicts to the jury. As I have already explained, the Coroner also refused to give reasons for his decisions relating to the admission of evidence of Mr Stanley's previous convictions and of the evidence relating to the decision of the CPS not to prosecute.
- It is necessary at this juncture to recollect, as Lord Woolf CJ explained in Amin, that the functions of an inquest after a death caused by state agents include "to give the beginnings of justice to the bereaved; to assuage the anxieties of the public" (paragraph 62). Those functions required the Coroner to give reasons for any decision which would substantially affect the outcome of the inquest. Indeed, one of the most important, if not the most important, of such decisions related to the verdicts that the jury could return. In the light of the credible accusation of at least manslaughter by either or both these officers, the Coroner was, in my view, obliged to justify his decision with reasons, albeit brief ones, explaining why he was not prepared to leave to the jury the verdicts that the claimant wished the jury to consider. There is a further reason why the failure of the Coroner to give reasons is open to objection and a valid challenge.
- In R v Higher Education Funding Council ex parte Institute of Dental Surgery [1994] 1 WLR 242 at 263, Sedley J (as he then was) said in a passage subsequently cited by the Divisional Court in Manning and Melbourne at paragraph 29 that:
- It is clear that Article 2 of the Convention confers on the family of a deceased a right to a thorough investigation. Indeed, Lord Woolf CJ said in Amin that: "A credible accusation of murder or manslaughter by state agents will call for investigation of the utmost rigour conducted independently for all to see" (paragraph 62).
- One of the important features of such an investigation is the reasons to be given for decisions, and in particular decisions of fundamental importance, which first exclude the jury from considering verdicts of substantial importance, such as unlawful killing or neglect, and, second, determine what expert evidence will be adduced.
- Mr Egan, for the officers, does not seek to suggest that adequate reasons were given for the verdicts to be left to the jury, and I agree.
- Mr Owen's complaint is that the Coroner wrongfully refused to call any expert firearms witnesses except for Inspector Glover, who was a commanding officer of the police officers who were responsible for the shooting of Mr Stanley. In particular, it is contended by Mr Owen that two relevant experts, Mr Greenwood and Mr Waldron, were present at the inquest and that they were respectively effectively funded by the family and the Metropolitan Police. In addition, he says that another expert, Mr Bailey, was available and that he could have been paid for out of the resources of the Coroner.
- At the June 2002 inquest, the Coroner said that Mr Stanley had turned towards them and that he had pointed an object in a blue plastic bag directly at Police Constable Fagan, which they believed to be a shotgun but which, in fact, was a table leg. Two of the fundamental issues raised at the inquest related to, first, whether Mr Stanley was facing or turned away from the officers and, second, whether Mr Stanley was holding the chair leg in such a manner that it could have looked as if he was about to fire a shotgun at the officers. Another crucial issue was to consider how the officers conducted the operation and whether the actual shooting was justified.
- Two of the experts, who the Coroner could have called but were not called, dealt with that issue, as their reports indicate. Thus, Mr Greenwood concluded that the actions of the officers "fell far below those that one would expect from well-trained and properly commanded police officers". Mr Bailey thought that the actions of the officers were "negligent", but he stated that the term grossly negligent "should be considered by legally trained professionals due to its significance in the law". This evidence could have been relevant, for example, to the issue of whether the jury could return a verdict which could lead to a charge of gross negligence manslaughter (see R v Adomoko [1995] 1 AC 171). So I conclude that these two experts would have been ready, able and willing to give evidence relevant to the issues to be considered by the jury, but, unlike the evidence the Coroner actually called, that evidence would have been independent of the police force.
- At the forefront of Mr Owen's submissions is the contention that independence is an important feature in an effective investigation for the purposes of Article 2 of the Convention. He says that this required the Coroner not merely to rely on law enforcement agencies to investigate themselves, but that there should be some form of independent investigation. Indeed, the Strasbourg court has made it clear that independence is essential for the preservation of confidence in the administration of justice (see Kilic v Turkey [1998] EHRR 23rd October 2000 and Gulec v Turkey 28 EHRR 121.
- This approach to the need for independence has been followed in this court. Thus, in R (Wright and Bennett) v Secretary of State (which I have already cited) Jackson J found that the sole reliance by a coroner on the Chief Medical Officer of the prison where a death took place, without recourse to further independent expertise, did not amount to a sufficiently independent inquiry. By the same token, in R (Nicholls) v Her Majesty's Coroner for Liverpool [2001] EWHC 922 the refusal of the coroner to call any other medical evidence, save for a Forensic Medical Examiner whose conduct was being impugned, was held not to constitute a sufficient inquiry. The decision of the Coroner only to call the superior officer whose conduct is being challenged failed to meet the requirements of Lord Woolf CJ in Amin that the investigation will be "conducted independently for all to see".
- In any event, the evidence the experts would have given was relevant as part of the "investigation of the utmost rigour" which, as I have explained, was the requirement specified by Lord Woolf CJ in Amin as being necessary in the face of "a credible accusation of murder or manslaughter by state agents". The decision of the Coroner not to call these further experts who could have given relevant evidence failed to comply with that requirement, and that is an additional reason why the decision of the Coroner at the June 2002 inquest was flawed.
- Mr Egan does not now dispute that if the Coroner was to hear Mr Greenwood, he should also have heard Mr Bailey and Mr Waldron. Therefore the complaints on this expert evidence issue succeeds.
- That leaves outstanding the fifth and sixth issues to which I now turn.
- It was common ground between counsel that for the reasons I have outlined that there would be no valid purpose in making submissions on this issue, and they did not do so. It was suggested by counsel that I should put forward some lessons that have been learned from this application for judicial review.
- Those lessons are that in cases in which there is a credible accusation of murder or manslaughter by a state agent and Article 2 of the Convention is engaged:
- As I have explained, I ordered at the end of the oral hearing that the verdict at the first inquest should be quashed and that a new inquest should take place in front of a different coroner. It was agreed on the last occasion that when my reasons for my decision had been given, all parties would then be given an opportunity to make representations on the question of costs. I therefore propose, subject to any comments that might be made by counsel, to make the following directions.
- Any party who wishes to seek an order for costs from any other party in respect of any matter arising out of my order will have to notify all other parties, including the Coroner and the Commissioner for the Metropolitan Police, by 1st June 2003, and at the same time provide those parties with a skeleton argument setting out its reasoning. Each of those parties will then have 21 days in which to oppose that proposal and to put forward a counter proposal together with any skeleton argument. Each of those skeletons and documents should be sent to me at the Royal Courts of Justice. I will then decide whether it is desirable to determine the costs issue on paper or whether there should then be an oral hearing on a date mutually acceptable to all parties. This is merely a suggestion and I would be grateful for any comments from counsel.
- MR FRIEDMAN: My Lord, can I just say for the record that today all parties are here. Miss Proops represents the defendant. Miss Leek represents the Metropolitan Police. Mr Egan represents the officers. Can I say, my Lord, that we have considered the issue of costs very closely since the last hearing, in particular in the light of comments that you have made, and we are able to say today that we shall not seek a costs order against the Metropolitan Police in relation to these judicial review proceedings. Our consideration of the law in relation to costs has indicated to us that where a defendant plays an entirely neutral role in the judicial review proceedings, the normal circumstances would not mean that a costs order was made. Your Lordship may have already considered that there is one exception that we do continue to submit, and would submit in writing, that where a serious error of law was made by the Coroner at first instance then, as an exceptional order, the court could resort to a costs --
- MR JUSTICE SILBER: That is an application that we are going to have to deal with on a different occasion.
- MR FRIEDMAN: The only position here, my Lord, and why I raise it, is with a view to avoiding any further costs at all. If your Lordship at this stage did not consider that the errors of law that had been identified in your ruling might fall within the exceptional category I have just described, then we would not wish to spend further legal funds --
- MR JUSTICE SILBER: I have not seen the authorities on it, but the whole of this area of law has changed radically since the coming into force of the Human Rights Act.
- MR FRIEDMAN: Yes, my Lord.
- MR JUSTICE SILBER: One of the areas where problems have arisen has arisen is in connection with inquests, as Amin and Middleton and other cases have shown. So this is really a very difficult area. That is, I think, all I am prepared to say at present. I think on a number of the matters I dealt with there has not been a great deal of authority on it, certainly in the light of the Human Rights Act. You should not assume that I am encouraging you or giving you any encouragement, but I have not yet heard your full submissions.
- MR FRIEDMAN: In that sense, my Lord, I wonder -- we are obviously in your hands, but I do have the authorities here today and the matter could be taken reasonably quickly, albeit that I am aware Miss Proops is not on notice.
- MR JUSTICE SILBER: I think that is quite an important point. I do not want to give you any encouragement because this is an area of some substantial difficulty as to how practice ought to have changed as a result of the Amin case. I have not checked but I think the Amin case did pre-date the first inquest.
- MR FRIEDMAN: The Amin case, the Nicholls case and the Wright and Bennett case all pre-dated this inquest.
- MR JUSTICE SILBER: Even so, this is a very difficult area. I do not give you any encouragement at all and I think you ought to consider your position carefully on that.
- MR FRIEDMAN: Would your Lordship allow me a minute to take instructions on that?
- MR JUSTICE SILBER: But, as I say, I have not made up my mind.
- MR FRIEDMAN: My Lord, thank you for that. We will proceed as you have indicated in the judgment, we will put our submissions in writing. There certainly are submissions in relation to the representation of the police officers. We would ask for some costs in relation to that as well, which of course is a separate matter.
- MISS PROOPS: My Lord, I appear on behalf of the Coroner in this case. I am very grateful for the directions that have been given in respect --
- MR JUSTICE SILBER: I think on the last occasion I made it clear that I was going to fix a date for giving the judgment without considering the convenience of counsel involved so that people would know what the position was and that you could then decide what steps to take after that. I am certainly not expecting you to make submissions.
- MISS PROOPS: I am very grateful. I have not prepared adequate submissions, but I would merely like to say that it has been suggested before you today that the question of whether you should order costs depends on whether you consider there has been a serious error. In fact, to date the cases which have considered the matter of costs look at the question of whether the court strongly disapproves of the Coroner's conduct, which is a slightly different test. It may be that the test has moved on. There is a case called Touche which was decided in 2001, which would no doubt be considered, but I just wanted to highlight that point.
- MR JUSTICE SILBER: My provisional view is that this is an uncertain area and obviously I will read with profit any submissions, but you ask me for my initial view and that is why I have given it, but it is still a preliminary view, I do not want anybody to think that is a definite. Mr Friedman, you said that you might be seeking costs against the police officers.
- MR FRIEDMAN: Yes, my Lord. The matter can be taken reasonably quickly.
- MR JUSTICE SILBER: If you are seeking orders against different parties I think all applications ought to be dealt with at the same time.
- MR EGAN: It would have been my submission that it was appropriate for my Lord to rule on those matters together.
- MR JUSTICE SILBER: I certainly would like to. Miss Leek, it is nice to see you here but I do not think that you want to say anything about costs.
- MISS LEEK: No, my Lord.
- MR JUSTICE SILBER: Nobody is seeking an order for costs against the Metropolitan Police, are they?
- MISS LEEK: I am delighted.
- MR JUSTICE SILBER: It is really just the other three parties which are concerned with costs.
- MR EGAN: My Lord, two minor matters. Firstly, going back to my Lord's ruling on previous convictions. In the course of that ruling, which was of course expected and conceded by the interested parties, my Lord said that the officers accepted that the convictions were not probative. My Lord, in fact that is not quite right. I put forward arguments in accordance with paragraph 6.1 of my skeleton --
- MR JUSTICE SILBER: I said that you accepted they would have no probative value.
- MR EGAN: In fact that was not -- it affects the ruling not one jot, but in fact the accurate position was that at 6.1 of my skeleton argument what the interested parties submitted was in the singular facts of this case the fact that the deceased had a previous conviction for armed robbery with a sawn-off shotgun might conceivably have been relevant, but we went on to concede that the Coroner should never have put the matter before the jury without hearing argument.
- MR JUSTICE SILBER: So in other words you accept that the convictions of Mr Stanley should not have been adduced without hearing argument. I see.
- MR EGAN: My Lord may remember that I was going to develop fields, but my Lord in fact interrupted me, quite rightly, because it really was not an issue as far as --
- MR JUSTICE SILBER: I think the major thing on the last occasion was to quash the verdict and get a new inquest ordered, and I think I did order that it should be heard by a different Coroner. If I did not I make that clear.
- MR FRIEDMAN: My Lord, it will be.
- MR EGAN: I am sure that message was clearly put.
- The second and final matter, in relation to the ruling on expert evidence, again it does not affect my Lord's ruling one iota because my Lord has clearly set that out, as we all hear, but the position of the interested parties at the last hearing was that the Coroner, were he to hear expert evidence, and it is set out in our skeleton argument, should have heard all the experts.
- MR JUSTICE SILBER: What I said was that you did not dispute that he made an error on this issue.
- MR EGAN: Yes, it is one of these rather difficult areas and it may be that this is an entirely redundant point because my Lord has granted relief on the basis of, as I understand it, all grounds.
- MR JUSTICE SILBER: I think we must get this right.
- MR EGAN: I think it is important to get my position right.
- MR JUSTICE SILBER: What should it say - Mr Egan now does not dispute that ...
- MR EGAN: At a new inquest --
- MR JUSTICE SILBER: Well, we are talking about the old inquest.
- MR EGAN: Yes, but at the old inquest my position on behalf of the interested party was if the Coroner was to hear Mr Greenwood, he should have heard all the expert witnesses. The difficulty area here, and it is not something I anticipate that needs litigation, but there is a difference between the parties as to whether there was any application by the family to call Mr Bailey and Mr Waldron.
- MR JUSTICE SILBER: What I was going to put is: does not now dispute that if the Coroner was to hear Mr Greenwood he should have heard --
- MR EGAN: Mr Bailey and, particularly, Mr Waldron.
- MR JUSTICE SILBER: That makes it clear.
- MR EGAN: My Lord, the difficulty is, and this is a matter which has more to do, I suspect, with the oncoming further inquest, as I readily concede, the fact that there is a difference between the parties but the transcript clearly bears out, I can give the reference, that when the Metropolitan Police indicated that it was agreed that Mr Bailey and Mr Waldron would not be called there was no disagreement from the family, that was before the Coroner.
- MR JUSTICE SILBER: Well, I am using the words, does not now dispute, and that is obviously a matter that you are going to have -- it will be of great value to me that when the submissions come in if people can actually photocopy the bits of the evidence that matter on this.
- MR EGAN: My Lord, yes.
- MR FRIEDMAN: I am not going to take your Lordship's time to respond to that. That is clearly an issue between us.
- MR JUSTICE SILBER: The more I listen to this the more convinced I am that we are going to have a further oral hearing to deal with costs. If I may say so, I would invite you to give very, very careful consideration to going against the Coroner.
- MR FRIEDMAN: I will do, my Lord, thank you for that indication. Can I deal with a slightly more mundane matter. Your Lordship in the several propositions that you applied generally to the conduct of an inquest with domestic law and Article 2 referred to the case of Douglas Williams. It is the fault in our skeleton argument. The full citation ought to be R v HM Coroner for Southwark ex parte Lisa Douglas Williams.
- MR JUSTICE SILBER: You also in fact gave the wrong page number.
- Thank you all very much.
Tuesday, 29th April 2003
MR JUSTICE SILBER: Introduction
The parties to this application
(i) erred both in admitting evidence of previous convictions of the deceased and also in doing so without first seeking, considering and ruling on submissions on the admissibility of such evidence from representatives of the deceased's family in the absence of the jury ("the previous convictions issue");
(ii) erred both in admitting evidence of the recommendation of the Crown Prosecution Service ("the CPS") that there were to be no criminal proceedings against Inspector Sharman and Police Constable Fagan, and also in doing so without first seeking, considering and ruling on submissions on the admissibility of such evidence from representatives of the deceased's family in the absence of the jury ("the CPS recommendation issue");
(iii) erred in failing to give any sufficient coherent reasons for some of his important rulings and decisions ("the reasons issue");
(iv) failed or refused to call any expert firearms witnesses, save for the commanding officer of Inspector Sharman and Police Constable Fagan ("the expert evidence issue");
(v) erred in not leaving a verdict of unlawful killing for consideration by the jury when there was sufficient evidence to do so ("the unlawful killing verdict issue");
(vi) erred in not leaving a verdict of failing to take reasonable care or neglect for consideration by the jury when there was sufficient evidence to do so("the neglect verdict issue").
The statutory background
"8-(1) Where a coroner is informed that the body of a person ('the deceased') is lying within his district and there is reasonable cause to suspect that the deceased-
(a) has died a violent or an unnatural death;
(b) has died a sudden death of which the cause is unknown; or
(c) has died in prison or in such a place or in such circumstances as to require an inquest under any other Act,
then, whether the cause of death arose within the district or not, the coroner shall as soon as practicable hold an inquest into the death of the deceased either with or, subject to subsection (3) below, without a jury...
(3) If it appears to a coroner, either before he proceeds to hold an inquest or in the course of an inquest begun without a jury, that there is reason to suspect ...
(b) that the death occurred while the deceased was in police custody, or resulted from an injury caused by a police officer in the purported execution of his duty ...
he shall proceed to summon a jury in the manner required by subsection (2) above...
11-(2) The coroner shall, at the first sitting of the inquest, examine on oath concerning the death all persons who tender evidence as to the facts of the death and all persons having knowledge of those facts whom he considers it expedient to examine.
(3) In the case of an inquest held with a jury, the jury shall, after hearing the evidence -
(a) give their verdict and certify it by an inquisition; and
(b) inquire of and find the particulars for the time being required by the [1953 c20] Births and Deaths Registration Act 1953 (in this Act referred to as 'the 1953 Act') to be registered concerning this death...
(5) An inquisition -
(a) shall be in writing under the hand of the coroner and, in the case of an inquest held with a jury, under the hands of the jurors who concur in the verdict;
(b) shall set out, so far as such particulars have been proved -
(i) who the deceased was; and
(ii) how, when and where the deceased came by his death; and
(c) shall be in such form as the Lord Chancellor may by rules made by statutory instrument from time to time prescribe.
(6) At a coroner's inquest into the death of a person who came by his death by murder, manslaughter or infanticide, the purpose of the proceedings shall not include the finding of any person guilty of the murder, manslaughter or infanticide; and accordingly a coroner's inquisition shall in no case charge a person with any of those offences."
"20 Entitlement to examine witnesses (1) Without prejudice to any enactment with regard to the examination of witnesses at an inquest, any person who satisfies the coroner that he is within paragraph (2) shall be entitled to examine any witness at an inquest either in person or by [an authorised advocate as defined by section 119(1) of the Courts and Legal Services Act 1990]:
Provided that - ...
(b) the coroner shall disallow any question which in his opinion is not relevant or is otherwise not a proper question."
...
36 Matters to be ascertained at inquest (1) The proceedings and evidence at an inquest shall be directed solely to ascertaining the following matters, namely -
(a) who the deceased was;
(b) how, when and where the deceased came by his death;
(c) the particulars for the time being required by the Registration Acts to be registered concerning the death.
(2) Neither the coroner nor the jury shall express any opinion on any other matters.
...
42 Verdict 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."
"1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection."
(a) the use of fatal force by agents of the state requires the most careful scrutiny as "a credible accusation of murder or manslaughter by state agents will call for an investigation of the utmost rigour conducted independently for all to see" (per Lord Woolf CJ in R (Amin and Middleton) v Secretary of State for the Home Department [2002] 3 WLR 505, paragraph 62);
(b) the obligation to investigate arises because Article 2 of the Convention enshrines fundamental human rights and when it is arguable that there has been a breach of this article, the state has an obligation to procure an effective and official investigation (Amin paragraphs 53 and 54);
(c) save in exceptional circumstances, a coroner's inquest shall or may be the appropriate forum for complying with the state's obligation to carry out the effective official investigation (R v DPP ex parte ex parte Manning and Melbourne [2000] 3 WLR 463, paragraph 33, and R (Wright and Bennett) v Secretary of State [2001] Lloyds Reports Medical 478, paragraphs 43(5));
(d) in carrying out his duties to ensure that a proper investigation is carried out, the coroner is concerned with the procedural obligations under Article 2 of the Convention, which are to "promote those interlocking aims: to minimise the risk of future like deaths; to give the beginnings of justice to the bereaved; to assuage the anxieties of the public" (Amin paragraph 62)
(e) where the jury at the inquest is entrusted with the task of determining the cause of death which follows the use of fatal force by actions of the state, it is incumbent on the coroner to ensure that only relevant evidence is adduced before it so that the three aims that I have stated can be achieved;
(f) "in a situation where a coroner knows that it is the inquest which is in practice the way the State is fulfilling the adjectival obligation under Article (2), it is for the coroner to construe the [Coroners] Rules in the manner required by [the Human Rights Act]" (Amin paragraph 91);
(g) under domestic law, which is unaffected by Article 2, if there is evidence on which a jury properly directed on the law could return a specific verdict, then in accordance with the principles stated in R v Galbraith [1981] 1 WLR 1029 at 1042, it is the duty of the coroner to give appropriate directions on that verdict (R v Her Majesty's Coroner for Southwark ex parte Lisa Douglas Williams [1999] 1 All ER 344 at 347-348).
The previous convictions issue
The Crown Prosecution Service recommendation issue
The reasons challenge
"In summary then:
(1) there is no general duty to give reasons for its decision but there are classes of case where there is such a duty
(2) one such class is where the subject matter is an interest so highly regarded by the law (for example personal liberty) that fairness requires that reasons, at least for particular decisions be given as a right."
It follows that the duty to give reasons does not apply to every aspect of an inquiry, but in this case the nature of the decisions that were made (and I refer to those relating to the verdicts open to the jury) were of great significance and ought to have been the subject of a reasoned judgment albeit a brief one.
Expert evidence issue
Issues (v) and (vi) - the unlawful killing verdict and the neglect verdict issues
(1) Evidence of previous convictions of the deceased can only be adduced to a jury in the exceptional cases when such evidence is relevant to the issues at the inquest in the light of the aims of Article 2. An example where it might possibly properly be adduced would be if police officers shot somebody who they knew had recent previous convictions for shooting at police officers when he had been arrested.
(2) evidence of any decision made by the CPS concerning the possibility of not prosecuting any person for anything done or omitted to be done to the deceased before his or her death should not be adduced in evidence to a jury at an inquest save in the most exceptional circumstances when it might be relevant to the jury's deliberations. In any event, even if such evidence could properly be adduced, it should only be done on the basis that the jury is told that (a) the decision of the CPS is a provisional decision which would have to be reconsidered after the conclusion of the inquest and (b) they should not be influenced by the decision of the CPS as it is they, the jury, and not the CPS who act as fact-finders at the inquest.
(3) before the coroner or any party to an inquest seeks to adduce evidence of the previous convictions of the deceased or of a decision of the CPS to prosecute or not prosecute anybody in connection with the death of the deceased, the coroner or that person seeking to adduce this evidence should, in the absence of the jury, notify all the other parties at the inquest of his intentions. If then there is a dispute concerning the admissibility of this evidence, the coroner should, in the absence of the jury (a) invite submissions on its relevance and admissibility and (b) give a ruling supported by reasons on its admissibility in the light of those submissions as well as the aims and requirements of Article 2 of the Convention.
(4) the Coroner should, in the absence of the jury, hear submissions on the relevance of any expert evidence that a party wishes to have called before reaching his decision having borne in mind those submissions and the aims and requirements of Article 2 as explained by Lord Woolf CJ in Amin.
(5) the Coroner should give some, albeit brief, reasons for all his significant decisions which affect the achievement of the aims of an inquest as set out by Lord Woolf CJ in Amin so that the party who has failed to obtain an alternative decision knows why he or she has been unsuccessful. Thus, for example, in accordance with the aim of "giv(e)[ing] the beginnings of justice to the bereaved" (Amin paragraph 62), it will be exceptional for a coroner not to explain, albeit briefly, why he is not prepared to allow the jury to consider a verdict sought by the deceased's family and in relation to which there has been some relevant evidence.