QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF THE COMMISSIONER OF POLICE FOR THE METROPOLIS||(CLAIMANT)|
|PS ROY KENWARD|
|PS ANDREW THOMAS|
|FORMER PS ROGER MEEK||INTERESTED PARTIES|
|HM CORONER SOUTHERN DISTRICT OF GREATER LONDON||(DEFENDANT)|
|PS ROY KENWARD|
|PS ANDREW THOMAS|
|FORMER PS ROGER MEEK||INTERESTED PARTIES|
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MR A WHITFIELD QC (instructed by Withers, London EC4M 7EG) appeared on behalf of the DEFENDANT
MR S SIMBLET (instructed by Hallmark Atkinson Wynter, London SW9 7DE) appeared on behalf of the Interested Parties (the Family)
MS C SIBSON (instructed by Russell Jones & Walker, London WC1X 8NH) appeared on behalf of the Interested Parties (the Police)
Crown Copyright ©
"A detained person may retain clothing and personal effects at his own risk unless the custody officer considers that he may use them to harm himself or others .... In this event the custody officer may withhold such articles as he considers necessary. If he does so he must tell the person why."
The rationale for this is clear. Ordinary respect for the human person requires as much. The presumption is in favour of not removing clothing or personal items unless it is considered that there is, amongst other reasons, the risk of harm. It is indeed not fanciful to think that, quite apart from the provisions of the 1984 Act and of Code C, human rights considerations might in any event require a similar approach. But it is plain that a balance between securing the safety of the suspect and those around him, and preserving a suspect's personal dignity, has to be struck. Certainly neither the Act nor the Code give the police an unfettered power to remove clothing or personal items.
"(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."
"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."
"I do not consider that the facts in this case permit of a conclusion of freestanding neglect, or a conclusion that death was a result of violation of article 2."
The coroner then went on to give reasons as to that, including citation from the case of Keenan, which I will come on to mention. He went on to say that he was not aware of any case in the coronal jurisdictions of England and Wales in which a conclusion of free-standing neglect on its own had been returned, and he declined to put that to the jury.
He then went on a little later on to say this:
"In this case the facts are different from those in many of the cases that have been cited to me and which have been the subjects of judicial interest and case reports in recent years. Scott Robbins had no formal diagnosis of mental illness; he was not, for example, suffering from schizophrenia; he was not threatening to take his life and he was not threatening self harm. However, in the ex parte Tristram case (the Swansea & Gower Coroner), Jackson J lists a variety of ways in which evidence of neglect might be left for a jury to decide."
I interpolate here that when one looks at the ex parte Tristram case mentioned by the coroner, reported at (2000) 164 JP 91, it is plain that Jackson J was giving a list of five points which were specific to the particular facts of that particular and rather unusual case.
"Given the judicial authorities and recent case law, it is important that I do not usurp the function of the jury. It is they who must be the sole arbiters of facts. It is my view that there are sufficient matters of fact to permit the jury to consider the issue of neglect. I consider that the facts in this case do pass the Galbraith test and require me to leave the issues to be decided by the jury.
Having said this I do not suggest that there has been neglect, only that there is sufficient disputed fact to make it necessary to leave the issue to the jury for their consideration, having, I hope, been directed adequately on the relevant law."
It is to be noted there that the coroner in his ruling refers only to "neglect".
"How then should the judge approach a submission of 'no case'? (1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury. It follows that we think the second of the two schools of thought is to be preferred.
There will of course, as always in this branch of the law, be borderline cases. They can safely be left to the discretion of the judge."
"But neglect should never form any part of the verdict unless a clear and direct causal connection is established in your minds between the conduct, which you described, and the cause of death."
He then went on a little later, having given some further directions:
"In the context of Mr Scott Robbins there are some incidents that could be categorized as failures. Failures in the sense either of doing things that should not have been done or failures in the sense of not doing things that should have been done. And it also encompasses not just failures on the part of an individual, who you must not under any circumstances name, but it also encompasses system neglect. And that is a new and developing area of law. But system neglect may be neglect for the purposes of this inquest.
Your first task then is to identify any such failures, and then to ask yourselves whether those failures, alone or together, could be categorised as gross."
"So, ask yourselves whether those responsible for Scott Robbins's care, knew or ought to have known that there was a real risk to his life and whether reasonable steps were taken to protect him against that risk. You've got to ask yourself that in the light of all the evidence that you have heard.
If you think that reasonable steps were not taken either by one or more individuals or by the system itself, to avoid that obvious risk, you must then ask yourselves whether that failure should be categorized, in all the circumstances, as a gross failure.
Was Scott's condition or appearance such as to show that he obviously needed attention? If so, was the necessary attention given to him?
If you do identify any failure as being a gross failure, then go on to consider whether, on the balance of probability, that failure was directly and clearly connected with the cause of death. It need not be the only cause, but it must make a significant contribution to the death; that is, something more than minimal, negligible or trivial."
He then went on to give some further directions and then came back to say this:
"Again just to stress you may not under any circumstances name any individual if you think that there was neglect. Even if, even if in your minds you have identified a particular individual. I don't for a moment suggest that that does arise, but even if you think someone was guilty of neglect you must not name that person.
But if you decide that there was system neglect, then you are entitled in your conclusions when you write them down, to include words that identify the nature of the neglect that you found. And as has been described in some of the case law, that could be quite helpful, in that if you think the system was at fault, and you record as such, that leaves those in a position to do something about it, [rather than] puzzling to think well I wonder what bit of the system they thought was at fault. And so you are entitled if you decide, if you decide, there was system neglect you are entitled in your narrative, your words that you write down to identify the nature of the neglect that you found, so long as, as I say, it is non judgemental it is purely factual and helpful."
He then went on to give a detailed summary of the evidence that had been given.
"(1) An inquest is a fact-finding inquiry conducted by a coroner, with or without a jury, to establish reliable answers to four important but limited factual questions. The first of these relates to the identity of the deceased, the second to the place of his death, the third to the time of death. In most cases these questions are not hard to answer but in a minority of cases the answer may be problematical. The fourth question, and that to which evidence and inquiry are most often and most closely directed, relates to how the deceased came by his death. Rule 36 requires that the proceedings and evidence shall be directed solely to ascertaining these matters and forbids any expression of opinion on any other matter.
(2) Both in section 11(5)(b)(ii) of the Act of 1988 and in rule 36(1)(b) of the Rules of 1984, 'how' is to be understood as meaning 'by what means.' It is noteworthy that the task is not to ascertain how the deceased died, which might raise general and far-reaching issues, but 'how .... the deceased came by his death,' a more limited question directed to the means by which the deceased came by his death.
(3) It is not the function of a coroner or his jury to determine, or appear to determine, any question of criminal or civil liability, to apportion guilt or attribute blame. This principle is expressed in rule 42 of the Rules of 1984. The rule does, however, treat criminal and civil liability differently: whereas a verdict must not be framed so as to appear to determine any question of criminal liability on the part of a named person, thereby legitimating a verdict of unlawful killing provided no one is named, the prohibition on returning a verdict so as to appear to determine any question of civil liability is unqualified, applying whether anyone is named or not.
(4) This prohibition in the Rules is fortified by considerations of fairness. Our law accords a defendant accused of crime or a party alleged to have committed a civil wrong certain safeguards rightly regarded as essential to the fairness of the proceedings, among them a clear statement in writing of the alleged wrongdoing, a right to call any relevant and admissible evidence and a right to address factual submissions to the tribunal of fact. These rights are not granted, and the last is expressly denied by the Rules, to a party whose conduct may be impugned by evidence given at an inquest.
(5) It may be accepted that in case of conflict the statutory duty to ascertain how the deceased came by his death must prevail over the prohibition in rule 42. But the scope for conflict is small. Rule 42 applies, and applies only, to the verdict. Plainly the coroner and the jury may explore facts bearing on criminal and civil liability. But the verdict may not appear to determine any question of criminal liability on the part of a named person nor any question of civil liability.
(6) There can be no objection to a verdict which incorporates a brief, neutral, factual statement: 'the deceased was drowned when his sailing dinghy capsized in heavy seas,' 'the deceased was killed when his car was run down by an express train on a level crossing,' 'the deceased died from crush injuries sustained when gates were opened at Hillsborough Stadium.' But such verdict must be factual, expressing no judgment or opinion, and it is not the jury's function to prepare detailed factual statements.
(7) Cases arise, usually involving the old, the infirm and the senile, where the deceased contributes to his or her own death by a gross failure to take adequate nourishment of liquid, or to obtain basic medical attention, or to obtain adequate shelter or heating. In such a case it may be factually accurate and helpfully descriptive to state that self-neglect aggravated, or preferably contributed to, the primary cause of death. Rarely, if ever, can it be factually accurate or helpfully descriptive to regard self-neglect as the primary cause of death (that is, in the language of the cases, to adopt it as a free-standing verdict).
(8) Much of the difficulty to which verdicts of lack of care have given rise appear to be due to an almost inevitable confusion between this expression and the lack of care which is the foundation for a successful claim in common law negligence. Since many of those seeking that verdict do so as a stepping-stone towards such a claim the boundary is bound to become blurred. But lack of care in the context of an inquest has been correctly described as the obverse of self-neglect. It is to be hoped that in future the expression 'lack of care' may for practical purposes be deleted from the lexicon of inquests and replaced by '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 physical condition is such as to show that he obviously needs it may amount to neglect. So it may be if it is the dependent person's mental condition which obviously calls for medical attention (as it would, for example, if a mental nurse observed that a patient had a propensity to swallow razor blades and failed to report this propensity to a doctor, in a case where the patient had no intention to cause himself injury but did thereafter swallow razor blades with fatal results). In both cases the crucial consideration will be what the dependent person's condition, whether physical or mental, appeared to be.
(10) As in the case of self-neglect, neglect can rarely, if ever, be an appropriate verdict on its own. It is difficult to think of facts on which there would not be a primary verdict other than neglect. But the notes to form 22 in the Rules of 1984, although in themselves of no binding force, are correct to recognise that neglect may contribute to a death from natural causes, industrial disease or drug abuse. Want of attention at birth, also mentioned in the notes, may itself be regarded a form of neglect. A verdict that, for instance, 'the deceased died from natural cases [or industrial disease, or drug abuse] to which neglect contributed' would seem perhaps more apt than a verdict that 'the deceased died from natural causes [or industrial disease, or drug abuse] aggravated by neglect,' since 'aggravated' in this context means 'made worse,' and in truth the neglect probably did not make the fatal condition worse but sacrificed the opportunity to halt or cure it.
(11) Where it is established that the deceased took his own life, that must be the verdict. On such facts, as the applicant in the present case accepted, there is no room for a verdict of neglect (or, as he would have put it, lack of care). It is also inappropriate in such a case, as the applicant has accepted, to describe that cause of death as aggravated by neglect (or lack of care). On certain facts it could possibly be correct to hold that neglect contributed to that cause of death, but this finding would not be justified simply on the ground that the deceased was afforded an opportunity to take his own life even it was careless (as that expression is used in common speech or in the law of negligence) to afford the deceased that opportunity. Such a finding would only be appropriate in a case where gross neglect was directly connected with the deceased's suicide (for example, if a prison warder observed a prisoner in his cell preparing to hang a noose round his neck, but passed on without any attempt to intervene).
(12) Neither neglect nor self-neglect should ever form any part of any verdict unless a clear and direct causal connection is established between the conduct so described and the cause of death.
(13) It is for the coroner alone to make reports with a view to preventing the recurrence of a fatality. That is the effect of rules 36(c) and 43.
(14) It is the duty of the coroner as the public official responsible for the conduct of inquests, whether he is sitting with a jury or without, to ensure that the relevant facts are fully, fairly and fearlessly investigated. He is bound to recognise the acute public concern rightly aroused where deaths occur in custody. He must ensure that the relevant facts are exposed to public scrutiny, particularly if there is evidence of foul play, abuse or inhumanity. He fails in his duty if his investigation is superficial, slipshod or perfunctory. But the responsibility is his. He must set the bounds of the inquiry. He must rule on the procedure to be followed. His decisions, like those of any other judicial officer, must be respected unless and until they are varied or overruled."
"89. Bearing in mind the difficulties in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, the scope of the positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Not every claimed risk to life therefore can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. For a positive obligation to arise, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. In this case, the Court has had to consider to what extent this applies where the risk to a person derives from self-harm.
.... .... ....
91. The Government has argued that special considerations arise where a person takes his own life, due to the principles of dignity and autonomy which should prohibit any oppressive removal of a person's freedom of choice and action. The Court has recognised that restraints will inevitably be placed on the preventive measures by the authorities by, for example in the context of police action, the guarantees of Article 5 and 8 of the Convention. The prison authorities, similarly, must discharge their duties in a manner compatible with the rights and freedoms of the individual concerned. There are general measures and precautions which will be available to diminish the opportunities for self-harm, without infringing personal autonomy. Whether any more stringent measures are necessary in respect of a prisoner and whether it is reasonable to apply them will depend on the circumstances of the case."
Overall, in the context of Article 2, the court found that the response of the authorities was a reasonable and proportionate response on the particular facts.
"What could, however, afford an effective remedy for death of the present kind is an inquest with procedures which assure the rights and interests of persons such as the applicant and with power to determine responsibility where this is possible. It is common ground that the English inquest in its modern form does not afford these things. This is not because the Coroner's Act 1988 forbids it: on the contrary, by section 11(5)(b)(ii) it requires a finding to be made as to how the deceased came by his death, a provision plainly capable of including an allocation of responsibility in a proper case. It is because Rule 42 of the Coroner's Rules 1984, made in the exercise of delegated powers by the Lord Chancellor, forbids the framing of the verdict in such a way as to appear to determine civil liability or a named person's criminal responsibility."
"79. The fact that a jury cannot under domestic law normally return a verdict of 'neglect' does appear at first sight surprising. They are after all entitled to return a more serious verdict, in the shape of 'unlawful killing'. However, as [Sir Thomas Bingham] the Master of the Rolls then explained, 'neglect' raises issues routinely determined in litigation alleging negligence and civil proceedings are a more appropriate forum in which to resolve questions of negligence. The seeming limitation does not arise out of a desire to limit the issues canvassed at the inquest, because the Rules in fact allow the wider inquiry to take place. So much is demonstrated by what happened in this particular case. The first inquest was quashed by the High Court because the Coroner did not permit a sufficient investigation of neglect to be carried out. The second inquest did consider this issue but when the jury expressed their views on neglect, after the issue had been investigated before them, the Coroner felt he was not permitted by the Rules to reveal their views.
80. The virtues of the restriction on verdicts of neglect are two-fold. First, the restriction avoids conflicts occurring between the verdict of a Coroner's jury and a decision of the courts. Secondly, the restriction avoids a potential defendant being found guilty of negligence without having the greater protection which he would have as a defendant contesting an allegation of negligence in civil proceedings. These virtues should not be lightly discarded. On the other hand the inhibition on a Coroner's jury bringing in a verdict of neglect can impede the ability of an inquest to fulfil the requirements of Article 2. Despite this inquests still make an important contribution, in the majority of cases, to meeting the implicit obligations of the [United Kingdom] under Article 2."
A little further on, this was said:
"87. A verdict of neglect can perform different functions. In particular, in the present context, it can identify a failure in the system adopted by the Prison Service to reduce the incidence of suicide by inmates. Alternatively it may do no more than identify a failure of an individual prison officer to perform his duties properly. We offer two illustrations, which demonstrate the distinction we have in mind. On the one hand, the system adopted by a prison may be unsatisfactory in that it allows a prisoner who is a known suicide risk to occupy a cell by himself or does not require that prisoner to be kept under observation. On the other hand, the system may be perfectly satisfactory but the prison officer responsible for keeping observation may fall asleep on duty.
88. For the purpose of vindicating the right protected by Article 2 it is more important to identify defects in the system than individual acts of negligence. The identification of defects in the system can result in it being changed so that suicides in the future are avoided. A finding of individual negligence is unlikely to lead to that result. If the facts have been investigated at the inquest the evidence given for this purpose should usually enable the relatives to initiate civil proceedings against those responsible without the verdict identifying individuals by name. The shortcomings of civil proceedings in meeting the requirements of Article 2 do not in general prevent actions in the domestic courts for damages from providing an effective remedy in cases of alleged unlawful conduct or negligence by public authorities.
89. In contrast with the position where there is individual negligence, not to allow a jury to return a verdict of neglect in relation to a defect in the system could detract substantially from the salutary effect of the verdict. A finding of neglect can bring home to the relevant authority the need for action to be taken to change the system, and thus contribute to the avoidance of suicides in the future. The inability to bring in a verdict of neglect (without identifying any individual as being involved) in our judgment significantly detracts, in some cases, from the capacity of the investigation to meet the obligations arising under Article 2."
The court concluded by saying this at paragraphs 91 and paragraph 92:
"91 .... The Article 2 duty is primarily that of the State; any shortcomings in the jurisdiction of a Coroner's inquest have to be made good by the State. However, coroners are themselves public authorities for the purposes of section 6(1) of the [Human Rights Act 1998] and are therefore now required under domestic law not to act in a way which is incompatible with a Convention right subject to section 6(2). The effect of section 6(2)(b) is that a Coroner can only rely on the Coroners Rules to excuse his not acting in accordance with Convention rights if the relevant rule 'cannot be read or given effect in a way which is compatible with Convention rights'. 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 Rules in the manner required by section 6(2)(b). Rule 42 can and should, contrary to Jamieson, when necessary be construed (in relation to both criminal and civil proceedings) only as preventing an individual being named, with the result that a finding of system neglect of the type we have indicated will not contravene that rule. If the Coroner is acting in accordance with the rule for this purpose he will not be offending in this respect section 6(1).
92. For a Coroner to take into account today the effect of the [Human Rights Act 1998] on the interpretation of the Rules is not to overrule Jamieson by the back door. In general the decision continues to apply to inquests, but when it is necessary so as to vindicate Article 2 to give in effect a verdict of neglect, it is permissible to do so. The requirements are in fact specific to the particular inquest being conducted and will only apply where in the judgment of the Coroner a finding of the jury on neglect could serve to reduce the risk of repetition of the circumstances giving rise to the death being inquired into at the inquest. Subject to the Coroner, in the appropriate cases, directing the jury when they can return what would in effect be a rider identifying the nature of the neglect they have found, the rules will continue to apply as at present. The proceedings should not be allowed to become adversarial. We appreciate there is no provision for such a rider in the model inquisition but this technicality should not be allowed to interfere with the need to comply with section 6 of the [Human Rights Act 1998]."
"Prison Service experience can only be a guide, not a template. Police custody staff, it is recognised, cannot conduct full assessments due to the limited time that most detained persons are held in police custody. Nor do they have the time to identify and record relevant factors in the same thorough manner that the prison service suicide prevention system seeks to do."
Then detailed pages under the heading "Why not check" list a series of propositions. One of the checkpoints is noting changes in conduct and mood and what detainees say. Others involve observations and visiting at frequent but irregular intervals. Various other matters of that kind are set out. Under the heading "General information" this is said:
"It is extremely hard to identify those persons who will or are likely to commit an act of DSH, attempt suicide or deliberately kill themselves whilst in police custody. But those who do, frequently give clues to their intentions. These are not easy to identify and are not always recognised until after the event. Be vigilant."
"The parties have not argued, and I am not concerned to decide, any questions which have any bearing on the establishment of liability for the death of the deceased. I make the point, however, 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 case is, I believe, the opportunity of rendering care, in the narrow sense of that word, which would have prevented the death. (See again per Croom-Johnson LJ in the Hicks case at p 1633.) 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."