QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE MOSES
| JEAN PEARSON
|- and -
|HM CORONER FOR INNER LONDON NORTH
William Hoskins (instructed by Withers LLP) for the Defendant
Hearing Date: 9th March 2005
Crown Copyright ©
Lord Justice Maurice Kay :
"In this appeal no question was raised on the retrospective application of the Human Rights Act 1998 and the Convention. They were assumed to be applicable. Nothing in this opinion should be understood to throw doubt on the conclusion of the House in In re McKerr. "
In Sacker, he said (at paragraph 29):
"The respondent's contention…..that this was a case of an ongoing breach of Article 2 has not been challenged at any stage of these proceedings. But there has been no decision on the point, and nothing that has been said in this opinion should be taken as having had that effect."
The plot thickens. Middleton and Sacker were heard together by the same Appellate Committee on 2,3 and 4 February 2004 and the decisions were handed down on 11 March 2004. On 2 and 3 February 2004, just along the corridor, a differently constituted Appellate Committee was hearing In re McKerr  1 WLR 807,  UKHL 12. Its decision was also handed down on 11 March 2004 This curious chronology has resulted in rival submissions in the present case, with Mr Hoskins on behalf of the Coroner relying on McKerr, which Mr Cragg says is irrelevant to the issue before us! Before turning to these submissions, it is appropriate to say a little more about the tragic death of Kelly Pearson.
"(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 –
(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 interest of justice that another inquest should be held."
The claimant is the mother of Kelly Pearson. Understandably, she expected that the inquest would provide her with answers as to how a vulnerable young woman came to be arrested on a warrant that was no longer live, how this remained undiscovered until the hearing in Horseferry Road Magistrates Court on 9 November and how, notwithstanding the involvement of various agencies, Kelly was left to wander the streets of London until her collapse in Wardour Street on the evening of 10 November. She complains that the inquest did not provide her with the answers to which she is entitled because of "insufficiency of inquiry" within the meaning of section 13(1)(b). Her challenge to the inquest is put on alternative bases. First, it is said that the Coroner erred in law by giving the words "how….the deceased came by (her) death" their pre-Human Rights Act meaning as adumbrated in Jamieson when they should have been given the wider meaning now required by Article 2 in accordance with the decisions of the House of Lords in Middleton and Sacker. It is common ground that the Coroner considered it appropriate to conduct a Jamieson style inquest rather than one conditioned by Article 2. Perhaps this is most evident from his words:
"I'm into enquiries into matters that directly caused the death, really…"
Thus, the first issue is whether a post-Human Rights Act Inquest into a death which occurred before the coming into force of the Human Rights Act must be Article 2 compliant. Secondly, it is said that, even if the law required no more than a Jamieson style inquest, what occurred fell short of the Jamieson requirements. I therefore turn to these two issues.
Issue 1: Article 2
"shall set out so far as such particulars have been proved…how…the deceased came by his death"
There is resort to the same wording in Rule 36 of the Coroners Rules 1984. The metamorphosis in the approach to the "how" question as a result of the coming into force of the Human Rights Act was described by Lord Bingham of Cornhill in Middleton (at paras 34-35):
"It is correct that the scheme enacted by and under the authority of Parliament should be respected save to the extent that a change of interpretation (authorised by section 3 of the Human Rights Act 1998) is required to honour the international obligations of the United Kingdom expressed in the Convention.
Only one change is in our opinion needed: to interpret 'how' in section 11(5)(b)(ii) of the Act and rule 36(1)(b) of the Rules in the broader sense previously rejected, namely as meaning not simply 'by what means' but 'by what means and in what circumstances'."
He then went on to describe how, depending on a particular case, it is for the Coroner, in the exercise of his discretion, to decide how best to elicit the jury's conclusion on the central issue or issues. This may be done in a number of ways including, for example:
" by inviting the jury's answer to factual questions put by the Coroner….it would be open to parties appearing or represented at the inquest to make submissions to the Coroner on the means of eliciting the jury's factual conclusions and on any questions to be put, but the choice must be that of the Coroner and his decision should not be disturbed by the Courts unless strong grounds are shown." (paragraph 36)
In Sacker he observed (at paragraph 28):
"The inquest was not able to identify the cause or causes of (the deceased's) suicide, the steps (if any) that could have been taken and were not taken to prevent it and the precautions (if any) that ought to be taken to avoid or reduce the risk to other prisoners. The most convenient and appropriate way to make good this deficiency is… to order a new inquest."
That is precisely the kind of approach which Mr Cragg submits would be necessary to render an inquest in the present case Article 2 compliant.
"In my view the answer lies in appreciating that the obligation to hold an investigation is an obligation triggered by the occurrence of a violent death. The obligation to hold an investigation does not exist in the absence of such a death. The obligation is consequential upon the death. If the death itself is not within the reach of section 6, because it occurred before the Act came into force, it would be surprising if section 6 applied to an obligation consequential upon the death. Rather, one would expect to find that, for section 6 to apply, the death which is the subject of investigation must itself be a death to which section 6 applies. The event giving rise to the Article 2 obligation to investigate must have occurred post Act.
I think this is the preferable interpretation of section 6 in the context of Article 2. This interpretation has the effect, for the transitional purpose now under consideration, of treating all the obligations arising under Article 2 as parts of a single whole. Parliament cannot be taken to have intended that the Act should apply differently, to the primary obligation (to protect life) and a consequential obligation (to investigate a death). "
Lord Hoffman referred to a number of other occasions upon which the House of Lords has held that the Human Rights Act is not retrospective, adding (at paragraph 67):
"So the primary right to life conferred by Article 2 can have had no application to a person who died before the Act came into force. His killing may have been a crime, a tort, a breach of international law but it could not have been a breach of section 6 of the Act. Why then should the ancillary right to an investigation of the death apply to a person who died before the Act came into force? In my opinion it does not….I therefore agree with the opinion of Silber J in R (Khan) v. Secretary of State for Health  EWHC 1414 (Admin) that the duty to investigate under Article 2 did not arise in domestic law in respect of deaths before 2 October 2002."
Lord Rodger of Earlsferry said (at paragraph 81):
"If Parliament had intended the rights under Article 2 to be split up, with the Act applying differently to the different aspects, then it would have provided for this expressly. The potential objections are obvious. It would be curious to give a right under the Act to an investigation of a killing to which the Act did not apply….the obvious conclusion is that the right to an investigation under the Act is confined to deaths which, having occurred after the commencement of the Act, may be found to be unlawful under that Act."
Finally, in the speech of Lord Brown of Eaton-under-Heywood the following passages appeared (paragraphs 88-89):
"Plainly no Article 2 obligation to investigate McKerr's death could arise under domestic law prior to 2 October 2000. But no more could it arrive after that date. It is a procedural obligation properly to be regarded as secondary or ancillary or adjectival to the substantive obligation to protect life, an obligation arising directly out of the loss of a life…..the duty to investigate is, in short, necessarily linked to the death itself and cannot arise under domestic law save in respect of a death occurring at a time when Article 2 rights were enforceable under domestic law, i.e. on and after 2 October 2000."
Issue 2: Was the Inquest Jamieson compliant?
"(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."
Giving the judgment of the Court in Jamieson, Sir Thomas Bingham MR said (at pages 23–25):
"(1) An inquest is a fact-finding enquiry conducted by a coroner with or without a jury to establish reliable answers to four important but limited factual questions…..the fourth question, and that to which evidence and enquiry 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….
(6) There can be no objection to a verdict which incorporated a brief, neutral, factual statement; 'the deceased was drowned when his sailing dingy capsized in heavy seas', ' the deceased was killed when he 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…..
(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."
In Regina v. Inner West London Coroner ex parte Dallaglio  4 All ER 139, Sir Thomas Bingham MR expressly agreed with the lead judgment given by Simon Brown LJ who, considering Jamieson said (at page 154):
"The inquiry is almost bound to stretch wider than strictly required for the purposes of a verdict. How much wider is pre-eminently a matter for the Coroner whose rulings upon the question will only exceptionally be susceptible to Judicial Review."
Sir Thomas Bingham MR added (at page 164):
"It is for the Coroner conducting an inquest to decide, on the facts of a given case, at what point the chain of causation becomes too remote to form a proper part of his investigation. That question, potentially a very difficult question, is for him. "
Finally, it is appropriate to refer to an earlier judgment of Simon Brown LJ which was to inform the judgment of the Court of Appeal in Jamieson. In Regina v Her Majesty's Coroner for Western District of East Sussex ex parte Homberg, Roberts and Manners (unreported 26 January 1994) he said (transcript pages 19-20):
"In short the inquiry must focus on matters directly causative of death and must, indeed, be confined to these matters alone (save only for ascertainment of the other specific details mentioned in rule 36(1)). The recent, eleventh edition of Jervis on Coroners puts it thus:
'The question of how the deceased came by his death is of course wider than merely finding the medical cause of death, and it is therefore right and proper that the coroner should enquire into acts or omissions which are directly responsible for the death'."
"It is my role, it is within my remit to determine matters that are directly causative to death but not to enquire into every underlying circumstances which may be thought of, however remotely, which may have responsibility for the death."
It simply cannot be said that the Coroner misdirected himself as to the Jamieson requirements. The issue is whether he properly applied them. Mr Cragg submits that there should have been a fuller investigation into how Kelly came to be arrested on a warrant which had already been executed, how she came to be detained for as long as she was and how she came to be released to fend for herself following her appearance at Horseferry Road. He further submits that there was an inadequate investigation into Kelly's mental health at the time.
"From the evidence we heard, Kelly certainly needed help but there is no evidence to suggest that all the professionals, or indeed the health care professionals, had done anything other than acted in good faith, professionally and tried to help her within quite difficult circumstances. Kelly died as a result of a drug overdose, by her own volition, which is very sad and tragic indeed. Clearly, no one who had any knowledge of this tragic death could not but have the deepest sympathy for Kelly's mother who clearly was at the end of her tether trying to do the best for her. Her frustration was compounded by the unfortunate 'cock up' of the inappropriate warrant which then brought Kelly to London where she died. Kelly's mother's distress and, indeed, palpable anger, was entirely understandable, and the Court Services at the very least, owe her a big apology indeed. No doubt there will be an inquiry into this matter, which is entirely outside of the remit of my court and I shall comment no more and…..I wish them luck in their quest in seeking answers to address her concern."
There are two things to be said about this passage. The first is that Mr Cragg seeks to rely upon the final part – "no doubt there will be an enquiry into this matter" – as being an ironical admission of the inadequacy of the investigation that had taken place at the inquest. In the light of what I have said about the principles governing the conduct of the inquest and my holding that the Coroner correctly applied them to this case, Mr Cragg can gain no mileage from the passage. Secondly, and most importantly, I wish to associate myself with the deep sympathy expressed by the Coroner. I well appreciate that the claimant, as a loving parent, will continue to feel aggrieved by the scope of the inquest. It will be no consolation to her that if Kelly had died after 2 October 2000, different considerations would have applied to the parameters of the inquest. Sadly, however, the less generous law which applies to the inquest in the present case fails to provide her with all the answers to which she, understandably, feels entitled. I am sorry to say that her appeal must be dismissed.
Mr Justice Moses: