QUEEN'S BENCH DIVISION
London, WC2A 2LL
B e f o r e :
MR JUSTICE ROYCE
| The Queen on the application of Linda Mullholland
HM Coroner for St Pancras
|- and -
HM Coroner for St Pancras
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
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Official Shorthand Writers to the Court)
Charles Béar QC (instructed by London Borough of Camden Legal Services) for the Defendant
Samantha Leek (instructed by the Metropolitan Police Legal Services) for the interested party
Crown Copyright ©
Lord Justice Kennedy:
At the Inquest.
Further medical evidence.
"It is my understanding that Dr Rouse gave evidence to the inquest suggesting that this head injury was invariably a fatal one and that if Mr Bunker would have been taken to hospital sooner it would have made no difference. I cannot agree with Dr Rouse's interpretation of Mr Bunker's prognosis, had he received immediate treatment. One cannot predict how Mr Bunker would have responded to immediate treatment. I can however speculate that if a patient is given optimum treatment following this kind of trauma, there must be at least some chance of survival, with or without neurological sequelae. I would have expected that if a patient who sustained head trauma, loss consciousness, woke up, defecated and was subsequently unable to walk, had slurred speech and had to be taken immediately to hospital. With that presentation I would have expected Mr Bunker to be immediately intubated and ventilated. I would have expected at the time of the presentation at 16.33 hours a CT scan to have been undertaken within a short period of time, bearing in mind the significance of the MOI and initial presentation. I would have expected a neurosurgeon to have been summoned within half an hour bearing in mind that neurosurgery is on-site at the Royal Free Hospital. In other words it is possible that before Mr Bunker showed signs of decomposition, that some neurological intervention would have been undertaken."
In his conclusion Mr Gavalas states –
"An important window of opportunity was missed in taking Mr Bunker to hospital for immediate treatment. The head injury occurred at around 1432 hours. There was a two hour delay before he was taken to hospital. The pre-hospital emergency services failed to transmit important information to the A & E Department at the Royal Free Hospital. There was a further two hour delay before Mr Bunker was intubated. By the time he decompensated he was clearly beyond any chances of being salvaged."
In response to a suggestion from Mr Gavalas a report was obtained from a consultant neurosurgeon Mr Laurence Watkins. His report is dated 18th February 2002. He too would have expected the deceased to be taken directly to hospital after his initial head injury and to have been treated more speedily and actively once he got there –
"On arrival at the Royal Free Hospital the patient had a history of head injury with subsequent repeated vomiting and decreased conscious level. The scalp bruising at the back of the head was noted. The patient was also difficult to assess due to agitation, requiring sedation. Given this situation I would have expected him to have an urgent CT scan. As a minimum, some hospitals perform an initial skull x-ray. The skull x-ray would have demonstrated the skull fracture and then he would definitely have been a candidate for an urgent CT scan, even if that decision had not been taken previously."
Having referred to observational studies and the severity of the deceased's injury Mr Watkins states –
"I would estimate his chances of survival as 51% if he had prompt, competent treatment. It is certainly possible that he would have died even with the best timely treatment. However, some patients with this type of injury do survive. Given the post mortem finding of haemorrhagic contusion of the left temporal lobe, as well as diffuse contusions elsewhere, it is unlikely that Mr Bunker could have recovered without some degree of disability, even if he had survived."
Proceedings for Judicial Review.
(1) The reading of statements under rule 37 of the Coroners Rules:
(2) The restriction on cross-examination:
(3) The alleged unexplained time gap between the departure of the police from the police station and the start of treatment at hospital:
(4) The refusal to adjourn on 23rd November 2001, and
(5) The impact of the reports of Mr Gavalas and Mr Laurence Watkins.
All five issues could be relevant to the exercise of our powers under section 13 of the 1988 Act, but only the first four matters arise under the proceedings for judicial review. Sadly since the inquest Carol Bunker has died, and in this litigation her place has been taken by her sister Linda Mullholland for whom Mr Simblet appeared in this court. At the start of his submissions he said that the underlying problem with this inquest was that emphasis was put on dealing with the matters speedily rather than fully. That seems to me to be completely at odds with the history which I have set out. He submitted that Miss Edmonds assurance to the Deputy Coroner at the outset as to the adequacy of the time available was given without knowing which witnesses might not be available, and when she had had only a limited chance to consider the material. That is true but of limited relevance because unavailability of witnesses tends to shorten rather than lengthen proceedings, and Miss Edmonds did not suggest that she needed more time to prepare. Furthermore, and more importantly, what happened thereafter showed that the Deputy Coroner was prepared to deal properly and fully with each problem as it arose, with no more than a proper regard to such matters as the availability of individuals, court rooms and space in the list.
Reading statements under Rule 37.
"(1) Subject to the provisions of paragraphs (2) to (4), the coroner may admit at an inquest documentary evidence relevant to the purposes of the inquest from any living person which in his opinion is unlikely to be disputed, unless a person who in the opinion of the coroner is within Rule 20(2) objects to the documentary evidence being admitted.
(2) Documentary evidence so objected to may be admitted if in the opinion of the coroner the maker of the document is unable to give oral evidence within a reasonable period.
(3) Subject to paragraph (4), before admitting such documentary evidence the coroner shall at the beginning of the inquest announce publicly -
(a) that the documentary evidence may be admitted, and
(b) (i) the full name of the maker of the document to be admitted in evidence, and
(ii) the brief account of such document, and
(c) that any person who in the opinion of the coroner is within Rule 20(2) may object to the admission of any such documentary evidence, and
(d) that any person who in the opinion of the coroner is within Rule 20(2) is entitled to see a copy of any such documentary evidence if he so wishes.
(4) If during the course of an inquest it appears that there is available at the inquest documentary evidence which in the opinion of the coroner is relevant to the purposes of the inquest but the maker of the document is not present and in the opinion of the coroner the content of the documentary evidence is unlikely to be disputed, the coroner shall at the earliest opportunity during the course of the inquest comply with the provisions of paragraph (3).
(6) Any documentary evidence admitted under this Rule shall, unless the coroner otherwise directs, be read aloud at the inquest."
Mr Simblet submits that Josephine Smith, Ruth Williams and Police Sergeant Clark were all important witnesses, and that the Deputy Coroner was wrong to admit their evidence pursuant to Rule 37. In my judgment the submission is hopeless because, as was pointed out by Mr Béar QC for the Deputy Coroner, the statements were in fact admitted under Rule 37(1). There was no reason to think that what the witnesses said was likely to be disputed, indeed Mr Simblet does not really suggest otherwise, and no objection was raised to the admission of their statements until after they had been admitted.
Restriction of Cross-Examination.
The alleged Time-Gap.
The refusal to adjourn on 23rd November 2001.
The fresh evidence
"If the inquest has been so conducted, or the circumstances attending it are such that there is a real risk that justice has not been done, a real impairment of the security which right procedure provides that justice is done and is seen to be done, the court ought not to allow the inquisition to stand."
Simon Brown J at 39 dealt with the weight to be given to the possibility of a different verdict, saying –
"In many cases it will be quite impossible for the reviewing court…. to form any sensible view upon whether the new evidence creates a probability or only a possibility that a different verdict would be arrived at upon a fresh inquisition. That would generally depend upon the precise evidence eventually given and the credibility of the witnesses that give it… this is not to say, however, that it will not generally be of the first importance to consider so far as possible the likelihood or otherwise of a fresh inquest arriving at a different verdict. That will always be relevant, often critical and sometimes wholly decisive, not least in 'new facts or evidence' cases."
The likelihood or otherwise of a different verdict is therefore a matter of the first importance.
"(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… 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.
(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… 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 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 he obviously needs it may amount to neglect….
(10) … Neglect can rarely, if ever, be an appropriate verdict on its own. … Neglect may contribute to a death from natural causes.
(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 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."
"(1) the coroners explanation of what constituted 'neglect' was erroneous. He began with a correct definition. Unfortunately he then amplified that definition in terms which suggested that simple negligence would suffice….
(2) The coroner failed to give any direction in relation to causation…. the jury must be satisfied that there was a clear and direct causal connection between the gross failure or failures by the police and the cause of death."
"(52) Notwithstanding Mr Burnett's submission that neglect and negligence are two different 'animals', there is, in reality, no precise dividing line between 'a gross failure to provide …basic medical attention' and a 'failure to provide... medical attention'. The difference is bound to be one of degree, highly dependent on the facts of the particular case.
(53) Standing back and looking at the facts of the present case, one starts with a death in custody. As the then Master of the Rolls said in Jamieson, such deaths rightly arouse acute public concern. Professor Redmond's report stated that this death in custody was 'entirely preventable' by steps that could have been expected of any doctor acting to a reasonable standard.
(54) Such a statement in respect of the death of a person in custody pointed to a need for the fullest investigation. The steps that Professor Redmond was suggesting would have been taken by any doctor acting to a reasonable standard were neither complex nor sophisticated. They amounted to doing no more than checking the patient's respiratory rate and the arranging for it to be checked after about another hour, rather than simply leaving the patient until the next morning….
(56) So far as causation is concerned ... in my judgment it is important not to read the Master of the Rolls words in Jamieson as though they were contained in an enactment, or to apply them in an over literal manner."
"(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 MR 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 the desire to limit the issues canvassed at the inquest, because the Rules in fact allow the wider inquiry to take place….
(80) The virtues of the restriction on verdicts of neglect are twofold. First, the restriction avoids conflicts occurring between a 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.
(81) This is because usually the Coroner's Rules 1984 achieve a sensible reconciliation between conflicting interests, namely: (1) the interests of the victims and the public in being able to investigate the circumstances surrounding a death, particularly a death in prison and (2) the interests of those who might be held responsible for the death of the deceased and (3) the need to restrict the scope of the inquest in the interests of expedition, affordability and proportionality.
(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…
(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…
(91) … 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 over rule Jamieson's case 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 be in effect 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."
Submissions and conclusions.
Mr Justice Royce: