England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		14th June 2005

Lord Justice Sedley :

1. The judgment which follows is the judgment of the court.
2. This is an application, brought with the Attorney General's fiat pursuant to s.13 of the Coroners Act 1988, to quash an inquisition of 22 Oct 2003 returning an open verdict on the claimant's son, Trevor Clayton, who died of heart failure in the course of an arrest by members of the South Yorkshire Police on 4 August 2000, and to procure a new inquest.
3. Section 13 provides:

Order to hold inquest

(1) This section applies where, on an application by or under the authority of the Attorney-General, the High Court is satisfied as respects a coroner ("the coroner concerned") either –

(a) that he refuses or neglects to hold an inquest which ought to be held; or

(b) where an inquest has been held by him, that (whether by reason of fraud, rejection of evidence, irregularity of proceedings, insufficiency of inquiry, the discovery of new facts or evidence or otherwise) it is necessary or desirable in the interests of justice that another inquest should be held.

(2) The High Court may –

(a) order an inquest or, as the case may be, another inquest to be held into the death either -

(i) by the coroner concerned; or

(ii) by the coroner for another district in the same administrative area;

(b) order the coroner concerned to pay such costs of and incidental to the application as to the court may appear just; and

(c) where an inquest has been held, quash the inquisition on that inquest.

4. The inquest took place before the Coroner for the Eastern District of South Yorkshire, Mr Hooper, on 13, 14, 15, 20, 21 and 22 Oct 2003. It is not necessary at this point of the judgment to describe the background to or the circumstances of Mr Clayton's death, although we shall have to say something about them later.
5. Any death in official custody is a matter of public concern as well, of course, as a source of grief and quite possibly anger to the deceased's family and friends. This is one reason why the coroner is required in such cases to sit with a jury: see s.8(3). It is correspondingly important that he should direct the jury correctly and that neither he nor anyone else should exert improper pressure on them.
6. What is said in the present case is that first the coroner and then his officer, PC Wolstenholme, improperly pressed the jury to deliver a verdict, with the result that the open verdict which they finally handed down by a majority of 7 to 2 ought not to stand, and that a fresh inquest should be ordered.
7. The evidence is that on the last day of the inquest the jury initially retired at 12.34. At 15.19 they returned, asking for further assistance, and received a short further direction. At 16.43 the jury were apparently deadlocked and were given a majority direction. It is the content of this direction which is the principal source of the challenge to the verdict, and we will come to it shortly in detail. It was now 16.47. At 16.54 - 7 minutes later - the jury returned with an open verdict arrived at by a majority of 7 to 2.
8. The day after the inquest the deceased's brother Terence Clayton was, by his own account, told by a jury member who approached him at the shop where he worked that the "man in the suit" – evidently the coroner's officer - had in the interval entered the jury room - which was in fact the courtroom - and told them that they must come back with a verdict "by the end of the day". In a supplementary statement Mr Clayton says that the words used by the juror were "by 5 p.m.".

The guiding principle

9. The underlying submission of Mr Leslie Thomas for Mrs Clayton is that there is, or ought to be, no difference between the standard of respect for the integrity of the jury's deliberation and verdict in the criminal courts and that called for in the coroners' courts. Neither Mr William Hoskins for the Coroner nor Mr Hugh Davies for the second Interested Party, the four police officers who made the arrest, dissents from this proposition, and we agree with it. The time is past when coroners' courts could be regarded as an anachronism with practices and standards that would not be acceptable elsewhere in the system of justice. With the coming into force of the Human Rights Act 1998, in the case of any death occurring after 2 October 2000 the inquest has become a means by which the state fulfils its positive obligation under art.2 ECHR to investigate objectively and publicly any death in the hands of the police or prison service: see R (Amin) v Home Secretary [2003 UKHL 51; Keenan v United Kingdom (2001) BHRC 319. There is no good reason, for the law to be less scrupulous in relation to a coroner than to a judge in a criminal court in matters of jury management. The Luce Report on Death Certification and Investigation (Cm 5831), which has been accepted in principle by government, takes a similar view.

The coroner's officer

10. It is convenient to deal first with the allegation that the coroner's officer told the jury that they must return a verdict by 5 p.m. If we were to accept that the evidence established this, neither Mr Hoskins nor Mr Davies would seek to uphold the verdict, and we would agree that it must be quashed. But the evidence is in our judgment simply not sufficient. It takes the form of the following statement by Terence Clayton, the deceased's brother:

2. On the 23^rd October 2003, whilst I was at my place of work, that being Knowles Butchers of 19 High Street, Swallownest, Sheffield, I was approached at approximately 8.20am by a male who I recognised as being a jury member at the inquest concerning the death of my late brother, Trevor Alan Clayton.

3. This person was visibly upset and began to convey to me his disappointment concerning the decision reached by some members of the jury.

4. He continued to express his fears and strongly felt that the jury was pressurised into reaching a verdict that day. He stated that "the man in the suit" directed the jury that by the end of the day a decision should be reached. Also, jury members were concerned by "not getting their expenses" before the court closed whilst others were troubled by the time and being late for work that evening. He also stated that members of the jury did not want to return to court the following day. That is when a female juror declared "put me down for an open verdict, I've had enough of this". Conversely this juror throughout deliberation had completely different views based upon the evidence that was heard throughout the inquest. I assured him that he had nothing to worry about and that it was not his fault. He then left the premises.

11. We omit the rest, which purports to disclose things said in the course of deliberation and is therefore not only inadmissible but ought not to have been disclosed or recorded. What Mr Thomas nevertheless submits is that the man in the suit can only have been PC Wolstenholme, and that he placed a deadline on the jury's deliberations which is now amplified as having been 5 p.m., the time at which it was already known to the jury that the court had to rise each day.
12. This evidence does not come from the juror. Although there is no reason to doubt Mr Terence Clayton's honesty in relaying what he recalls being told, his witness statement is no proper substitute for the juror's, not least because it is flatly controverted by PC Wolstenholme who in a witness statement made in reply denies making any approach whatever to the jury. We would not be justified in proceeding, in this situation, on the footing that what Mr Clayton was told by a juror related to PC Wolsteholme and was true, and that what PC Wolstenholme says in response is not to be believed. The short answer to the second ground is therefore that it fails for want of proof.
13. We would add this, however. It would have been invidious and risky for the family's lawyers to seek out the juror, and in due course very probably the other jurors, in order to see if they would confirm what Mr Clayton had been told. But it might have been appropriate for the Attorney General, when approached for his fiat with Mr Terence Clayton's statement, to make such inquiries. (We do not know what inquiries were in fact made before the Solicitor-General signed the fiat on the Attorney's behalf, but we assume that if any of the jurors had been interviewed the parties would have been told the outcome.) Both Mr Hoskins and Mr Davies accept that direct confirmation by jurors of the allegation would have raised a sufficient doubt about the integrity of the verdict to make an evidential contest unnecessary.

The coroner's directions

14. The critical passage in the coroner's charge to the jury came at about 3.19 on the final day of the inquest, when, having given them further directions on two sensible and well-formulated questions which they had put in writing, the coroner said this to them:

Coroner: "….It has been suggested to me that now that you have had those two directions you may be able to reach your verdict in a comparatively short time and would prefer not to walk all the way back to the room where you have been and walk all the way back again. Would you be content to be left by yourselves in this courtroom, I having given you those further directions or would you prefer to walk back to the room where you have been deliberating heretobefore?"

Jury "We will stay here."

Coroner "Very well, in that case everyone else will leave, including me, and I will ask the jury bailiff to remain outside that door and I shall not come out of that door until I have been told that it is appropriate to do so and for the avoidance of doubt I am going to say clearly that I am now going to turn off this tape recorder."

Everyone except the jury left the courtroom.

Coroner "I am going to record the fact that I have come back into court at 16.43. I am going to observe that you retired at 12.34, that is to say, over four hours ago. I have been informed by the jury bailiff that you have reached a decision on a majority and I have been told what that majority is. I am not going to say what I have been told that majority is. I told you before you retired, ladies and gentlemen of the jury, there are certain circumstances in which a coroner at an inquest may accept a majority verdict and that if those circumstances arose I would give you an appropriate direction. What I have to tell you is two things. First, I can accept a verdict from you provided that no more than two of you dissent from that verdict, but if more than two of you dissent I cannot accept such a majority verdict. Secondly, it is not improper in considering what your verdict should be for there to be an element of give and take in your discussion and considerations, although in so saying I am not saying that any of you should go so far as to depart from what you honestly believe and to depart from the oaths which each of you took on Monday morning of last week. It would, of course, be a pity if I have to discharge you from bringing in a verdict at this inquest. If the need arises so be it, but I am not going to do so just yet. Having regard to what I have said about it not being improper for there to be an element of give and take, and that I may accept a verdict from which no more that two of you dissent, I am going to ask you to give some further consideration to your verdict, but having regard to the fact that you have been considering what it should be, albeit with a break for a further direction, for more than two hours I am not going to ask you to consider it for more than a reasonable time, and if it becomes apparent to you that you cannot reach a majority verdict on which no more than two of you dissent, I shall, with considerable regret, discharge you from reaching a verdict. I respectfully ask you to give a little more time to seeing if you may reach a verdict from which no more than two of you dissent. Bearing in mind what I have said about it not being improper for there to be an element of give and take, but bearing in mind also that I am not asking any of you to depart from which you find and which would be contrary to your conscience we will all withdraw and leave you again for a tolerable but not particularly long time,…"

15. The standard form in which deadlocked juries may be helped to break the deadlock is known as the Watson direction

"Each of you has taken an oath to return a true verdict according to the evidence. No one must be false to that oath, but you have a duty not only as individuals but collectively. That is the strength of the jury system. Each of you takes into the jury box with you your individual experience and wisdom. Your task is to pool that experience and wisdom. You do that by giving your views and listening to the views of others. There must necessarily be discussion, argument and give and take within the scope of your oath. That is the way in which agreement is reached. If, unhappily, [10 of] you cannot reach agreement you must say so."

16. Decided cases also make it clear that, beyond this limited form of encouragement, no pressure, especially of time, must be applied - typically by telling the jury that if they do not bring in a verdict by or within a specified time they will be discharged (R vRose [1982] AC 822). The vice, as the Privy Council said in De Four v The State [1999] 1 WLR 1731, is that one or more of the jurors may be induced by such pressure to agree to a verdict to which they would not otherwise have subscribed.
17. The Court of Appeal in R v Buono (1992) 95 Cr App R 338 held that if the Watson direction was given, judges should not add anything to it. In our view the remark that it would be "a pity" if the coroner had to discharge the jury, and his anticipated regret were to have to do so, followed by his offer of "a little more time", went beyond what is permissible in this delicate situation and transgressed the principle set out in Buono.
18. There is a further problem to which we drew attention in the course of argument. The passage we have quoted runs together the Watson direction and the majority direction. The Court of Appeal in R v Buono (ante), 344, noting that in Watson Lord Lane CJ had said that the material direction was "probably best included as part of the summing up or given or repeated after the jury have had time to consider the majority direction", laid down that the Watson direction "should never be combined with the majority direction". The reason is that the majority direction is designed in itself to facilitate a verdict, and that it is only where it is evidently failing in this objective that the Watson direction may be needed.
19. In the present case, there were further possible pressures on the jury. First, as counsel who were present agree, it had been apparent throughout the inquest that the working day in the building which was being used ended at 5 p.m. Secondly, the venue was Rotherham Magistrates' Court, and since it lacked a jury room, a room in the adjacent police station was used as the jury room. On the last two occasions when he gave them further directions, the coroner offered the jury the opportunity, which they accepted, of remaining in the courtroom while he and everybody else withdrew. Thirdly, although in correspondence he has stated that he made it plain throughout the inquest that if need be they could "resume and conclude the inquest some while after 22 October", the coroner on the afternoon of 22 October did not canvass the possibility of releasing the jury with the customary warning and reconvening them the next day to go on trying to reach a verdict.
20. In all these circumstances we are satisfied that undue pressure was, albeit inadvertently, put upon the jury to reach a verdict by the imminent end of the working day, and that this, followed by their rapid return with a 7-2 open verdict, amounts, in the words of s.13(1)(b), to irregularity of proceedings. They should have been given a majority direction without any Watson element. If the coroner then decided that a Watson direction was appropriate, he should have given it adequate time to take effect, if necessary by making it clear that – unless irremediably deadlocked – the jury could go home and continue their deliberations the following day. Instead, as 5 p.m. approached, it may well have seemed to them that if they failed to reach a verdict within the next few minutes the whole inquest would have been a waste of time.

A new inquest?

21. We turn therefore to the crucial question under s.13: is it necessary or desirable in the interests of justice that another inquest should be held?
22. Consideration of this question is not affected by the enactment of the Human Rights Act 1998, because the death occurred before that Act came into force on 2 October 2000. There is no freestanding right to an investigation into the circumstances of the death under ECHR Article 2: Re McKerr [2004] UKHL12 para.69 per Lord Hoffmann.
23. In our view the interests of justice would require another inquest to be held if on the available evidence there was a real possibility, on the available evidence, that a jury would properly conclude that the death was caused (in the sense of being contributed to more than minimally) by unlawful violence inflicted by police officers in the course of the deceased's arrest. The available evidence can be gleaned from the coroner's summing up.
24. It was not disputed that the deceased had been stabbed in the heart by Julie Harrison in October 1998. Evidence about this injury and its likely effects were given by four medical witnesses – Professor Milroy, Dr Nathaniel Cary, Dr Beck and Professor Hall. There was no disagreement between them about the effects of this injury. The stab wound had penetrated the left lower ventricle, causing hypertrophy and enlargement of the heart by at least 50%. In consequence, the heart did not function as a normal heart would when under stress. Stress would release adrenalin into the bloodstream which was likely to precipitate a heart event. Professor Milroy said that it was well recognised that people with large hearts were vulnerable to sudden death. Dr Beck said that in the case of someone with heart problems like those of the deceased it was not possible to say what had happened to tip the balance. The deceased was known to be a heavy drinker. Professor Hall thought that a combination of alcohol and heart problems and stress had triggered his death.
25. There was, accordingly, a consensus of view amongst the medical experts that the deceased's heart was, primarily as a result of the stabbing in 1998, unusually vulnerable to stress.
26. There was no dispute that the deceased was drunk and aggressive on the night of 3^rd/4^th August 2000; and that Julie Harrison had summoned the police to secure his removal from her house. The only eyewitness evidence of what occurred in the living room of her house after the police arrived was given by four police officers. All that Julie Harrison, who was elsewhere in the house, was able to say was that she heard sounds from her lounge that were not friendly and a loud bang. That evidence was consistent with the evidence given by the police officers. They were PC Hamshaw, PC Taylor, PC Cross and PC Cutmore. Their evidence was broadly consistent, although it differed in minor detail. It was to the effect that the deceased was in drink and aggressive and declined to leave when requested to do so. PC Hamshaw warned him that he would be arrested for a breach of the peace. He and PC Cross said that he took up a fighting stance – fists clenched, head dropped and face flushed. PCs Hamshaw and Taylor took hold of an arm each and handcuffed him behind his back. The deceased fell to his knees and slumped forward, banging his head on the living room carpet. PC Cross said that her head and that of the deceased had banged together during the incident as well. All four police officers said that he appeared to have lost consciousness. He seemed to be snoring. Each of them believed that he was feigning unconsciousness. He was picked up and carried out on to the pathway. There was a dispute as to precisely what happened then. PC Hamshaw said that he was taken straight to the pavement, then to a police patrol car, and laid feet first on the rear seat. PC Taylor (supported by PC Cutmore) said that he was taken to the footpath between the steps – not the pavement – and laid on his side in the recovery position; and then put in the car.
27. Adam Harrison, one of Julie Harrison's sons, was asleep in his bedroom when the incident began. He said that he woke up when he heard scuffling. He had made a witness statement, but said in evidence that he was not sure which parts of it were right. He said that the deceased was put on the pathway between the two flights of steps – in other words, his evidence was consistent on this point with that of PCs Taylor and Cutmore.
28. There were further differences in evidence about what had occurred in the police car. PC Hamshaw said that the deceased had rolled off the back seat as they travelled and was then sat up on the rear of the passenger seat. Adam Harrison said that he had heard PC Taylor say "sit him up" when he was in the car. A radio log was kept of exchanges between the police officers and the radio operator at the police station. PC Cross was heard to say in relation to PC Hamshaw "Hammy's put him down and has now got the arrested person into the patrol car – wedged up against the door". This is said to be inconsistent with the evidence of PC Hamshaw; and it may be as to the precise time at which the deceased was sat up in the car; but it does not appear inconsistent in any other respect.
29. As is apparent from this summary, a conclusion that police misconduct contributed to the death of the deceased could only flow from their actions in the living room. The fact that they were the only eye witnesses and gave evidence inconsistent with misconduct would not, by itself, prevent a finding of unlawful killing. Signs of fatal injury, revealed by an autopsy could negate such denials, but there was no such evidence here. Professor Milroy said that the injuries were more consistent with the deceased falling than with him having received a beating. Dr Kerry thought that adrenalin released by struggling was a most important factor. Professor Hall considered that stress and alcohol were the triggering factors and that the deceased's heart started to get into serious trouble when he fell forwards.
30. There was no pathological evidence of unlawful violence used by the police upon the deceased and no medical or other evidence to suggest that what took place outside the living room of the house was in itself capable of causing death. Professor Milroy said that there were no asphyxial changes. Dr Beck found no marks of pressure asphyxia and was unable to find any pathological evidence of asphyxia at all. Professor Hall considered that the deceased's heart started to get into serious trouble when he fell forward in the lounge. The fact was that the deceased had a highly vulnerable heart; and that unknown to the police it was liable to fail suddenly under stress. That stress undoubtedly included the fact of his arrest which was admittedly lawful and his struggling and being handcuffed. There was no direct evidence that the police officers had gone beyond what was lawful up to the point where Mr.Clayton collapsed. Even if thereafter their conduct may have been debatable it was not, on the evidence, causative of death.
31. On the evidence given at the inquest, which is still the sum of available evidence, a verdict of unlawful killing due to misconduct by police officers would therefore have been highly unlikely and very probably open to legal challenge. In this situation it is not necessary or desirable in the interest of justice that a new inquest should be held. While we understand the families view that the police bear much of the responsibility for Trevor Clayton's death, the difficulty of arriving at any such verdict on the evidence made it, and still makes it, extremely unlikely that a fresh inquest could produce an appreciably different verdict, whether it were to be given – as Mr Leslie Thomas, for the family, urges it should be – in narrative form (though we would doubt the appropriateness of the three-page questionnaire placed before us as an example) or in a conventional form such as was used here. Indeed, a new inquest could reach a verdict more favourable to the police than the present open verdict.
32. In spite therefore of the Coroner's misdirection of the jury we do not consider that this is a proper case in which to quash the inquisition.

LORD JUSTICE SEDLEY: For the reasons given in writing in the judgment of the court, and notwithstanding the misdirection of the jury by the coroner, the application for the quashing of the inquisition and for a fresh inquest is dismissed for the reasons given in the judgment.

Mitting J and I have considered the written submissions of all the parties in relation to the allocation of costs and our decision is that there should be no order for costs save that the publicly funded costs of the applicant be assessed.

I add that it is a matter of regret that in the course of correspondence before the hearing the coroner saw fit to suggest that if the application was pursued he would be looking to the claimant for his costs "if needs be by means of a wasted costs order." It will be apparent from the judgment that this was not an appropriate thing to have written.