QUEENS BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| R (Anderson & Others)
|H.M. Coroner for Inner North Greater London
Mr Ian Burnett Q.C. & Ms Clodagh Bradley for the Commissioner of Police for the Metropolis
Mr Patrick O'Connor Q.C. & Miss Phillippa Kaufmann (instructed by Messrs Bhatt Murphy, Solicitors) for the Sylvester Family
Mr Philip Havers Q.C. & Mr Martin Forde (instructed by Hempsons, Solicitors) for Enfield Haringey Mental Health Trust
Hearing dates: 3 – 5 November 2004
Crown Copyright ©
Mr Justice Collins:
"If a constable finds in a place to which the public have access a person who appears to him to be suffering from mental disorder and to be in immediate need of care or control, the constable may, if he thinks it necessary to do so in the interests of that person or for the protection of other persons, remove that person to a place of safety within the meaning of section 135 above".
By s.135(6) a place of safety includes a hospital.
"Where known details must be given to the hospital over the phone prior to arrival giving the name, address, date of birth together with brief details of circumstances surrounding detention. This is of paramount importance if the subject is, or has been violent so that proper arrangements for security and safety can be made by the hospital staff who will be present on arrival".
The police officers complied with these obligations so far as possible. Since Roger was in the throes of cannabis induced delirium, he appeared unable to understand what was said to him and was certainly unable to communicate with the officers. Paragraph 10 of the protocol is important. It provides:
"At the reception centre police officers MUST remain to provide security and ensure safety of hospital staff and the patient until they have been released on the authority of the duty nurse or doctor. Under these circumstances we have a clear lawful duty to ensure security and public safety, preserve the peace, and prevent offences being committed. The safety and security of police, patient and hospital staff are paramount.
St Ann's NHS Trust has made an understanding in respect of all cases that they will ensure that police will not be detained any longer than necessary and will endeavour to ensure that no police officer is required to remain present for longer than 1 hour. The exception to this is where there is a genuine delay and there is a risk that the patient is likely to cause harm or injury to self or others or is likely to cause criminal damage to property".
This shows that normally police would not expect to be required to remain with the detained person for more than one hour, but that it was possible that they might have to restrain him for more than a few minutes.
This notice is issued to remind officers of the potential for deaths to occur through 'positional asphyxia'.
Positional asphyxia is defined as occurring when "the position of the body interferes with respiration, resulting in asphyxia".
Positional asphyxia is likely to occur when a person is in a position that interferes with inhalation and/or exhalation and cannot escape that position.
Positional asphyxia can occur extremely rapidly.
The following factors can contribute to death through positional asphyxia.
- The body position of a person results in partial or complete airway obstruction and the subject is unable to escape from that position
- Pressure is applied to the back of a person held in the face down prone position
- Pressure is applied restricting the shoulder girdle or accessory muscles of respiration whilst laid down in any position
- The person is intoxicated through alcohol or drugs
- The person is left in the face down, prone position
- The person is obese (particularly those with large 'beer bellies')
- Where the person has heightened levels of stress
- Where the person may be suffering respiratory muscle fatigue, related to prior, violent muscular activity (such as after a struggle).
Signs and symptoms
Officers must be aware of the following signs and symptoms and take immediate remedial action to relieve the symptoms and give first aid:
- Gurgling/gasping sounds
- An active person suddenly changes to being passive (that is, loud/violent to quiet/tranquil)
- The person appears to be panicking
- Verbal complaints of being unable to breath, probably associated with an increased effort to struggle; or
- Cyanosis (blue colouration in facial skin)
Cyanosis is very difficult to detect in some individuals (for example, those with dark skin, whose complexion may instead display a purplish/blue tinge around the lips or nail beds) or in poor lighting conditions.
Reducing the risk
The risk of positional asphyxia can be reduced:
- Once handcuffed, the person should be placed in a seated, kneeling or standing position, as soon as possible.
- A prisoner's condition and life signs should be monitored before, during and after transportation. The rapidity of the onset of problems, especially if multiple factors are present for example large, obese individuals who have consumed alcohol and have been stressed by physical struggle, can be very fast – seconds not minutes. Vigilance is of the utmost importance.
- Unless wholly unavoidable, prisoners should not be transported in the prone, face down position. In the exceptional circumstances where this is necessary, constant attention should be paid to the condition of the prisoner and immediate steps taken to alleviate any breathing difficulties.
If there is any doubt about the medical well being of a prisoner, first aid must be given and medical assistance obtained immediately.
When any prisoner, in the course of arrest or afterwards, is physically restrained, full details must be recorded and drawn to the attention of the custody officer".
A later Notice, number 12/99, was produced before the jury. This post-dated the events of 11 January 1999. It dealt particularly with persons who displayed violence induced by mental illness. This emphasised the dangers of the prone (face down) position and the need to place a 'resistive subject' into a seated, kneeling or standing position, as soon as possible once control had been achieved, either by handcuffing or other means.
"Q. … I think you would appreciate that if in fact you had been restraining Mr Sylvester prone and flat on his tummy, that would have been quite dangerous"
Q. I think you have accepted, so far as positional asphyxia is concerned, that it would have been extremely dangerous to have held Mr Sylvester flat on his stomach, prone, on the hospital floor?
Q. That would have been unsafe, and I think you would agree with me, that would have been an unreasonable use of force?
A. Yes, but the training is where possible and practicable to try and put somebody on their side".
It was suggested to each officer, but denied by each, that Roger had been held face down on his tummy. Each officer was adamant that he had been held so far as possible in what was described as the 'recovery position', that is to say, on his side and one officer at all times was holding his head sideways to ensure that he could breathe properly.
"The facts in this case are that Mr Sylvester was detained/restrained within the 136 Room for between fifteen and twenty minutes on the evening of the 11.01.99. It was on the face of it, a lawful restraint. It was conceded in evidence that restraint is known to be dangerous. It carries a risk of harm. However I accept the submissions made by Mr Thwaites and Mr Bromley-Martin that dangerousness is not to be equated with unlawfulness. Dangerousness is determined by the objective test. This test is satisfied by the officers' own evidence and the evidence of others that any degree of restraint carries a risk of harm. I consider it a matter of fact for the jury to determine if or when and how the restraint that was on the face of lawful became unlawful by the application of unreasonable force or for an unreasonable time. There is nothing in the authorities to which I have been carefully referred which persuades me that unlawful killing, can only arise from a neutral situation. A lawful act can progress on the facts into becoming an unlawful act. On the facts of this case, because prima facie and most times depending on what the jury find, there was lawful restraint, it does not prohibit the jury from determining that at times, to be determined by them, restraint was or became unlawful either for a prolonged period of time or specified period of time or at intervals and there could be a series of unlawful acts".
This passage suggests that the coroner was adopting a test which was not justified, since he seemed to be saying that any restraint carried a risk of harm and so could found an unlawful killing verdict. However, a little later he said this: -
"In this case, there was conflict about the manner and position of restraint within Room 136. The balance in numbers of witnesses supporting the officers' account may outweigh the contrary witnesses, but there is some evidence upon which the jury might determine the fact that there was an intention to act unlawfully and dangerously by way of excessive restraint and this inadvertently caused Mr Sylvester's death. Therefore I find there is some evidence applying the Galbraith test [R v Galbraith 73 Cr App R 124] … upon which the jury can determine unlawful killing in this case".
"If there has been an attack so that defence is reasonably necessary it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be the most potent evidence that only reasonable defensive action had been taken".
While this is not directly applicable to the need to restrain violent persons or patients, the analogy is obvious and the test is clearly relevant. But it was less appropriate in this case since the officers had all denied that they had deliberately kept Roger prone face down. Since that was the only basis upon which a verdict of unlawful killing could conceivably have been justified, the need for a Palmer direction is not obvious.
"I will first deal with the highest verdict that I am going to leave you to consider because I think that there is some evidence upon which you might want to return this verdict. The highest verdict is that this was a case of unlawful killing due to an unlawful dangerous act. You can find that there was unlawful killing, if the facts prove that there was an intentional act which was unlawful and dangerous and that act caused the deceased's death. There must be an unlawful act and it must be dangerous. The unlawful act is a matter for you to determine and determine whether more force was applied than reasonably necessary or whether the application of force was for longer than necessary occurred by way of restraint in what was otherwise a lawful detention in the section 136 [room] at St Ann's Hospital. If on the facts as you determine them, the force exceeded that which is reasonably necessary, then that force constituted an assault. Whether the unlawful act was dangerous is to be determined by an objective test, i.e. would all sober and reasonable people recognise its danger. The unlawful dangerous act caused death if you find that it more than minimally contributed to the death.
In determining the factual issues and in determining this, if you decide on the evidence that this was unlawful killing, the burden or standard of proof you have got to satisfy is that it is proved beyond all reasonable doubt in that you are so certain that you are sure".
"Unlawful Killing due to an Unlawful Dangerous Act
The jury can find unlawful killing if the facts prove that there was an intentional act that was unlawful and dangerous and that act caused the death.
There must be an unlawful act and it must be dangerous.
The 'unlawful' act is a matter for the jury to determine whether more force was applied than reasonably necessary, or the application of force for longer than necessary by way of restraint in what was otherwise lawful detention in the Section 136 room at St Ann's Hospital. If on the facts force exceeds that which is reasonably necessary that force constitutes an 'assault'.
Whether the unlawful act was dangerous is determined by an objective test. Would all sober and reasonable people recognise its danger.
The unlawful dangerous act caused death if jury find it more than minimally contributed to the death.
The standard of proof required is:
Beyond all reasonable doubt. So certain that you are sure".
Secondly, the more elaborate direction in the form of an algorithm asking four questions read: -
"Unlawful killing due to an unlawful dangerous act.
Are we satisfied beyond reasonable doubt that the act or acts of restraint of Roger Sylvester by police officers was or were more than a minimal cause of the death?
If the answer is no – there can be no verdict of unlawful killing.
If the answer is yes – go to question 2.
Are we satisfied beyond reasonable doubt that any causative act of restraint identified in question 1 was intentional, that is to say not accidental?
If the answer is no – there can be no verdict of unlawful killing.
If the answer is yes – go to question 3.
Are we satisfied beyond reasonable doubt that the restraint identified above was unlawful? That is to say, are we satisfied beyond reasonable doubt that more force was used than was reasonably necessary, or that the force was used for longer than was reasonably necessary? In deciding whether an act was unreasonable or unnecessary you must bear in mind that a person committing it cannot be expected, in the heat of the moment, to measure the exact amount of force that is necessary. If you think that the person committing the act honestly and instinctively thought that what he was doing was necessary that would be evidence that the act was reasonable and necessary. It is for you as the tribunal of fact to say what degree of force is reasonable and necessary in the circumstances as the police officers believed them to be.
If the answer is no there can be no verdict of unlawful killing.
If the answer is yes – go on to question 4.
Are we satisfied that the restraint identified above was dangerous? The legal definition of dangerous is as follows:
"The unlawful act must be such as all sober and reasonable people would inevitably recognise must subject the other person to at least the risk of some harm resulting there from albeit not serious harm".
You, the jury, represent sober and reasonable people. You may also ask the question in this way: are we satisfied beyond reasonable doubt that the restraint identified above would have inevitably been recognised by all of us as one which must have subjected Roger Sylvester to the risk of some harm, albeit not serious harm?
In reaching your conclusion you, the jury, may take account of all the evidence of the police officers and staff at St Ann's Hospital and the findings of fact that you make.
If the answer is no – there can be no verdict of unlawful killing.
If the answer is yes – you may return a verdict of unlawful killing and set out the causative, intentional, unlawful and dangerous act or acts in the narrative of the Inquisition".
"The coroner's task in a case such as this is a formidable one … once again, it should not be forgotten that an inquest is a fact-finding exercise and not a method of apportioning guilt. The procedure and rules of evidence which are suitable for the one are unsuitable for the other. In an inquest it should never be forgotten that there are no parties, there is no indictment, there is no prosecution, there is no defence, there is no trial, simply an attempt to establish facts. It is an inquisitorial process, a process of investigation quite unlike a criminal trial where the prosecution accuses and the accused defends, the judge holding the balance or the ring, whichever metaphor one chooses to use".
The only gloss which should be applied to this dictum is that the establishment of the facts will now extend to considering not only by what means the deceased met his death but also in what circumstances. The absence of any opening or closing speeches at inquests means that the need for clarity in a summing-up becomes all the more important. This is not to say that a summing-up should be subjected to a close analysis or that the absence of a particular form of words or indeed of particular directions will necessarily be fatal. But the jury must know clearly what they must find as facts in order to justify any verdict, especially one which decides that a criminal offence has caused the death. The law must always be applied to the facts of a given case. A general direction is usually not sufficient and may be misleading.
1(a) Hypoxic Brain damage
1(b) Asystolic/bradycardic arrest.
1(c) metabolic, hypoxic, cardiovascular and respiratory consequence during restraint.
2. Cannabis induced delirium
At about 22.25 on 11.01.99 in room 136 at St Ann's Hospital, Tottenham, the deceased collapsed whilst struggling against restraint. The deceased was lawfully detained except, as set out below, when more force was applied than was reasonably necessary and/or the force was applied for longer than reasonably necessary by way of restraint causing a significant contribution to the adverse consequences of restraint.
Roger Sylvester was killed unlawfully".
As will be seen, in 1(a),(b) and (c) were set out the immediate (1(a)) and contributory (1(b) and (c)) causes of death. The finding in 2 gave the reason why Roger was in a state which had led to the need for him to be restrained. Before explaining how the jury should deal with the document, the coroner added the Palmer direction to his previous oral directions on unlawful killing but did not help the jury to identify what must be established on the facts of the case before them to justify a verdict of unlawful killing. He then again summarised the evidence at some length.
"It is going to be a matter for the jury to determine whether Mr Sylvester was ever restrained in that position flat, prone and that is for the jury to determine between the evidence of the officers and those of the Trust staff who gave a different version of the restraint and they as the jury will have to apply the objective test to what they find the officers were doing, whether they find they were effectively pinning him down as Mr Bersabel [a nursing assistant] says or were as some of the evidence suggests they were trying to maintain him on his side".
Although Mr Bromley-Martin said that this would be a misdirection, it suggests that the coroner was alive to the need to identify that the restraint was 'flat, prone' before unlawful killing could be established.
"I have also suggested a narrative for the time, place and circumstances at room Mr Sylvester sustained his injuries and again the narrative is a matter for you and the wording is a matter for you. But if you think this is unlawful killing, I want you to set out in the narrative and I have left four points blank, you may have one point, you may have more than four points. I want you to set out what constitutes the unlawful killing in that paragraph. And to help you to do that, I have set out some further questions in the second documents. Questions 1, 2, 3 and 4. Are you satisfied beyond reasonable doubt that the acts of restraining Mr Sylvester was or were the minimal cause of his death. If the answer is no, it can't be unlawful killing. If it is yes, go on to question 2. Are you satisfied beyond all reasonable doubt that any of the causal acts identified in question 1, was intentional; i.e. not accidental. If no, it can't be unlawful killing. If yes, go to question 3. Question 3 contains the directions I said I will give you. You don't need to know which case it's from it is a direction that I have given to you and I have amended as I think appropriate, bearing in mind a number of other cases I think. I hope it will assist you. In deciding whether an act was unreasonable or unnecessary, you must bear in mind that the person committing it can't be expected in the heat of the moment to measure the exact amount of force that is necessary. I have used that kind of wording, rather than wording that is sometimes used in other cases. If you think that the person committing the act honestly and instinctively thought that what he was doing was necessary, that would be evidence, and I say that would be evidence, it is a matter for you that the act was reasonable and necessary. It is for you to determine to say what degree of force is reasonable and necessary in the circumstances as the officers believed them to be. If the answer is no, it can't be unlawful killing. If the answer is yes, go onto question 4. Question 4, is an objective test. Are you satisfied that the restraint you have identified is a matter of fact was dangerous and the legal definition is set out in that quotation. The unlawful act must be such that all sober and reasonable people will inevitably recognise and must subject the other person to at least the risk of some harm resulting there from or be it not serious harm. It is an objective test. In reaching your conclusion, you may take account of all the evidence in this case, and the findings and fact that you make. Being an objective test, you've got to picture yourself as being there and deciding whether you think it was dangerous. A common phrase now when someone sees an incident is to say 'oh that will hurt' or words to that effect. There is a TV advert at that moment where that phrase is used. Think about what it would be like if you were witnessing the restraint that you find being applied if you answer all the other tests as yes, you get to this test, looking at it objectively, did you think it would cause or subject Mr Sylvester to at least the risk of some harm all be it not necessarily serious harm. It is an objective test. When you've determined the facts, and you've applied those tests and standard of proof is beyond all reasonable doubt, so certain that you are sure. If you are not so certain that you are sure you cannot return a verdict of unlawful killing".
"You can reject or include those phrases, you can look at the other suggested narratives and say no, we are satisfied that should be a better phrase, you've heard the evidence yourselves if there is something I have left out in the summary, that you've heard in evidence, and you think it should be included and again, if more the emphasis and comments I have made, and go with what you've heard and with what you've got in your notes".
He then went on to deal with the medical evidence about the cause of death. I shall return to that when considering ground one and causation.
He ended this part of his directions thus: -
"If you find on the facts that there has been an element of asphyxia, caused by the unlawful dangerous act if you find that there has been such unlawful dangerous act, and you find beyond reasonable doubt that more than minimally contributed to the cause of death, providing you go through the test and set out the findings, 1,2, 3 and 4 about what constitutes those unlawful acts then you can return a verdict of unlawful killing, setting out the details of how, when, and where you find those unlawful acts to occur. You've got to look at all the evidence and apply the tests. You've have heard what they've said about the strength of the struggle. They were aware to a degree subject to their training about the possible complications of prolonged restraint and advised hospital staff of these. They were aware and they were taken to documentation about the need to reposition the patient as soon as possible or when safe to do so. There is no specific guidance about the timing. It is as soon as possible or when safe to do so. You have heard what they have said about their options and lack of alternatives. I referred you to the test in Paragraph 3, or question 3 on unlawful killing about what they believed they were doing. Look at the exact wording in the question when you make a determination and think about what the officers thought and believed was necessary based on all the evidence".
Just before he sent the jury to consider their verdict, he said this: -
"So the verdicts are, unlawful killing beyond all reasonable doubt, going through the facts of the case, determining what the officers were doing, the timing of what they were doing, being compared to the descriptions others gave, do you prefer a chain of events on the evidence that Mr Sylvester being restrained in a prone, unlawful, unreasonable way, and looking at that, if you find that, objectively, was it dangerous and it advertently caused his death, if you are satisfied on all the elements including the causes of death beyond all reasonable doubt then you can return that verdict, if you are not satisfied, move on the next determining accident, the elements of the accident, the causes of death on the balance of probabilities, your narrative for the accident on the balance of probabilities, and complete the rest of the inquisition. Abuse of drugs likewise and if having gone through all the evidence, you are not satisfied that you can reach the other conclusions, because the burden of proof or the standard of proof has not been satisfied, go for an open verdict. But if you can reach a decision, you should".
Mr O'Connor relies on the words 'being restrained in a prone, unlawful, unreasonable way' as sufficient to draw to the jury's attention the need for them to be satisfied that Roger was restrained in a prone position before returning a verdict of unlawful killing. I am afraid I cannot agree. Apart from the possibility that the jury may have regarded the adjectives as being disjunctive, this was the only reference to prone in the context of what needed to be established and it did not come anywhere near providing the clear direction that the jury needed.
"At about 22.25 on 11.01.99 in Room 136 at St Ann's Hospital, Tottenham, the deceased collapsed while waiting medical assessment. The deceased was lawfully detained except as set out below when more force was applied than was reasonably necessary causing a significant contribution to the adverse consequences of restraint".
The juror who returned the verdict orally continued thus, according to the transcript: -
"While held in restraint position for too long
2) rapid medical attention
3) No attempt was made to alter his position of restraint".
This was recorded on the written inquisition in slightly different language in that 2) read: -
"Lack of medical attention".
I suspect the transcriber mistook 'lack of' for 'rapid'.
"The conclusion I have come to is that, so far as the evidence called before the jury is concerned, a coroner should adopt the Galbraith approach in deciding whether to leave a verdict. The strength of the evidence is not the only consideration and in relation to wider issues, the coroner has a broader discretion. If it appears there are circumstances which, in a particular situation, where in the judgment of the coroner, acting reasonably and fairly, it is not in the interest of justice that a particular verdict should be left to the jury, he need not leave that verdict. He, for example, need not leave all possible verdicts just because there is technically evidence to support them. It is sufficient if he leaves those verdicts which realistically reflect the thrust of the evidence as a whole. To leave all possible verdicts could in some situations merely confuse and overburden the jury and if that is the coroner's conclusion he cannot be criticised if he does not leave a particular verdict".
It is, incidentally, while referring to this case, worth citing observations of Hobhouse LJ in the hope that something may be done to provide coroners with the same sort of assistance as is provided to judges in the Crown Court. At p.355, he said:-
"I also endorse the need for legal directions to be given to juries in a clear and easily usable form. The use of written directions should be further considered in any case which is not wholly straightforward. There is scope for a body such as the Judicial Studies Board to be invited to prepare and provide sets of standard directions which coroners could use in such cases".
"Was there anything that you saw in that Room 136 about the way the police officers were restraining him, that caused you any concern?"
To that question his answer was 'No'.
"I don't know if he was completely flat, I don't know if he was angled at all, but he was tummy side down".
There then followed this important question and answer:-
"The coroner: '… If completely flat is fully prone, 100% prone, and at 90o on either the left side or right side in upright, what degree of proneness was Mr Sylvester? You are saying tummy side down, was he fully prone, 10o prone, what would you say?'
Dr Lawton: 'Well he definitely was not 90o and I am unsure as to what angle he was. I am sorry, he was also really moving. Though he was moving his body because the police officer wasn't restraining that bit, that's the bit that he was moving most. I don't remember his limbs moving. But he was really moving his body. I am sorry, I don't know what degree'".
"The hypoxia, in Mr Wilson's evidence, there was a background of hypoxia and he says that was multifactorial and there is evidence, there were problems with metabolism, there was acid going out into the blood from the muscles, we also heard evidence previously, about potassium going out onto the muscles into the blood and some of the muscles enzymes, so there was metabolic problems, there was also an increase of adrenaline, we heard about that, so there was a metabolic problem caused by restraint and struggling. There was also an oxygen problem, oxygen demand, the need of the tissues to get oxygen and oxygen delivered, and that's to do with the mechanics of ventilation, how the muscles work to lift the rib cage up and the chest out to take oxygen to the system. Mr Wilson, having looked at all the clinical evidence and the ECG evidence, he feels that the final common pathway, he says that bradicardiac arrest, where the heart has slowed right down and stopped and gone into cardiac arrest and he is saying in his opinion that is due to vagal stimulation, the vagus nerve is stimulated and the cardiac of the heart is caused to slow right down and that could be caused by that final episode of possible, depending on what you find, breath holding, causing vagal stimulation and inhibition, slowing down the heart and he says the anoxia, lack of oxygen, low oxygen is hypoxia, anoxia is no oxygen, it is unlikely that there was no oxygen then, he held his breath, he strained but he had a background of hypoxia caused by the whole process in which he had been in since whatever you find on the facts, sometime before 22.00 hrs, and the process during St Ann's and he says that all then led to a bradicardic arrest. You still have to deal with the facts about the background of the hypoxia and the metabolic process, you've still got to determine as a fact what you think that final movement was about and you've got to look at the facts how Mr Sylvester was restrained, but I may have to come back and summarise to you, but is that fair to everyone?"
The force of rearing up caused vagal stimulation, but hypoxia could have been a contributory factor.