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
		Hearing 9th March 2005

Lord Justice Maurice Kay :

1. This case raises a short but important point. Where a coroner is conducting an inquest into a death which occurred before the coming into force of the Human Rights Act 1998 on 2 October 2000, is the approach to the question how the deceased came by his or her death, which is posed by section 11(5)(b)(ii) of the Coroners Act 1988, to be considered by reference to the pre-Human Rights Act test as adumbrated in Regina v. North Humberside Coroner, ex parte Jamieson [1995] QB 1 or by reference to the more recent test developed by reference to the Human Rights Act in Regina (Middleton) v. West Somerset Coroner [2004] 2 WLR 800, [2004] UKHL 10, and Regina (Sacker) v. West Yorkshire Coroner [2004] 1 WLR 796, [2004] UKHL 11? Jamieson decided that "how" in section 11(5)(b)(ii) meant "by what means" and not "in what broad circumstances". Revisiting the statute with the additional interpretative technique provided by section 3 of the Human Rights Act in the context of the Convention right enshrined in Article 2, the House of Lords in Middleton and Sacker concluded that "how" should now be given the wider meaning of "by what means and in what circumstances"
2. In the present case, the deceased, Kelly Siobhan Pearson, died on 10 November 1999. The inquest took place on 25 April 2002. As it happens, both Middleton and Sacker also concerned deaths which had occurred before 2 October 2002 and inquests which took place after that date but no one in those cases took the point of retrospectivity. In the event, the House of Lords left the point as an open one. In Middleton, Lord Bingham of Cornhill said (at paragraph 50):

"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 [2004] 1 WLR 807, [2004] 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.

3. Kelly was born on 30 August 1969. She was a troubled young woman who had mental health problems associated with or compounded by substance misuse. Between May and July 1999 some five warrants for her arrest were issued by three different magistrates courts in London. She was arrested on 9 August and on 7 September her case was considered in Bow Street Magistrates Court. The outcome of that hearing was that sentence upon her was deferred until 6 January 2000. It is not entirely clear whether that was in relation to one or more prosecutions but it is common ground that by 7 September the five warrants for her arrest had ceased to be live. Nevertheless, in October her details were still being circulated on the Police National Computer for failure to surrender in connection with the matter for which sentence had been deferred on 7 September 1999. Kelly was bailed on 7 September and returned to her family home in West Yorkshire. On 5 November 1999 she was arrested there. Initially she was detained at Eccleshill Police Station until 8 November when, a PNC search having wrongly revealed an outstanding warrant, she was transported to Belgravia Police Station in London. She was detained overnight there and produced before the Horseferry Road Magistrates Court on 9 November. By about 10.15.a.m. the error over the warrant was discovered and Kelly was released from custody. She remained in the court building for some time after that whilst various individuals and agencies considered the cost and logistics of her return to Yorkshire. In the event she did not return to Yorkshire. She remained in London overnight. She had lunch in a hostel on 10 November and visited a drop in clinic for homeless people at about 4.00.p.m.. At about 6.30.p.m. she was discovered by a police officer in Wardour Street. She was clearly in a bad way and, less than an hour later, she was pronounced dead at University College Hospital. An inquest was opened and adjourned by Her Majesty's Coroner for Greater London (Inner North District) on 15 November 1999. It was resumed on 25 April 2002. The cause of death was found to be methadone, diazepam and alcohol poisoning. The jury returned a verdict of misadventure. The present proceedings are brought under section 13 of the Coroners' Act 1988. The fiat of the Attorney General was given on 20 May 2004.
4. The material parts of section 13 provide as follows:

"(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) ….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 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

5. This is an issue of pure law. On behalf of the Coroner, Mr. Hoskins does not suggest that the inquest was Article 2 compliant. His case is that, by reason of the chronology, Article 2 was not engaged. In view of the common ground I shall be brief in describing the Article 2 approach. Section 11 (5)(b)(ii) requires that an inquisition

"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.

6. As I indicated at the outset of this judgment, in Middleton and Sacker no point was taken about the possible non-application of Article 2 to deaths which occurred before 2 October 2000. The matter was expressly left open by the House of Lords on both occasions. Before examining the rival submissions in the present case, it is necessary to refer to In re McKerr.
7. The matrix of In re McKerr was not the operation of section 11(5) of the Coroners Act. The case concerned men who had been shot dead by members of the Royal Ulster Constabulary in 1982. An inquest had been opened in 1984 but, following adjournments, a re-opened inquest was abandoned in 1994. On an international level, the Strasbourg Court held in May 2001 that there had been a violation of Article 2 because of a failure to comply with the obligation implicit in that Article to hold an effective official investigation when a person has been killed by the use of force. The Strasbourg Court did not carry out such an investigation. Accordingly, the family of the deceased made a domestic application for judicial review claiming relief in the form of declarations that the continuing failure of the Secretary of State for Northern Ireland to provide an Article 2 complaint investigation was unlawful and in breach of section 6 of the Human Rights Act 1998 and Article 2, together with a mandatory order compelling him to conduct such an investigation. In other words, the case was not about a statutory inquest but about an alleged free standing right to an investigation by reference to Article 2. At he heart of the case was the issue of retrospectivity: could the family rely upon section 6(1) of the Human Rights Act to enforce Article 2 rights in relation to a death which occurred in 1982? The House of Lords held that it could not. Lord Nicholls of Birkenhead said (at paragraphs 21-22):

"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 [2003] 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."

8. The submission of Mr Hoskins is that the point expressly left open by one Committee of the House of Lords in Middleton and Sacker was in effect resolved on the very same day by a different Committee in McKerr. Mr Cragg's response is that this is to misunderstand the different contexts of the cases. McKerr is about an alleged breach of Article 2 by a public authority (the Secretary of State for Northern Ireland) in refusing to establish a non-statutory inquiry. Its context is section 6 of the Human Rights Act. Middleton, Sacker and the present case, on the other hand, are about the statutory duties of a Coroner under the 1988 Act and how the relevant provisions should be interpreted by reference to section 3 of the Human Rights Act.
9. I do not feel able to accept Mr Cragg's submission. One does not reach the stage of resort to section 3 as a tool for interpretation unless and until it is established that the Human Rights Act applies. In Middleton and Sacker it was simply assumed, without demur, that it applies on a retrospective basis but with the point expressly left open. However, the point was very clearly decided in McKerr. It comes to this. When Article 2 provides that "everyone's right to life shall be protected by law", it embraces both a positive obligation on the state to protect everyone's life and a procedural requirement that there should be some form of effective official investigation when an individual has been killed. The present case is concerned with that procedural obligation. It is not the primary obligation imposed by Article 2 but, in the words of Lords Nicholls, "a consequential obligation". Or in the words of Lord Brown, a "secondary or ancillary or adjectival" obligation. The logic of McKerr is inexorable. If the positive obligation did not arise in domestic law prior to 2 October 2000, the consequential, secondary, ancillary or adjectival obligation cannot now give rise to a domestic obligation because it is consequential upon and secondary, ancillary and adjectival to the substantive obligation to protect life. I am driven to the conclusion that if the Appellate Committee in Middleton and Sacker had been required to address this question, it would have yielded to the same inexorable logic. Mr Cragg seeks to avoid it by characterising the breach of Article 2 as a continuing one which straddles the coming into force of the Human Rights Act. However, I am not persuaded by that analysis which, it seems to me, was rejected in McKerr (see the speech of Lord Brown at paragraph 92). Alternatively, Mr Cragg submits that the Human Rights Act can operate retrospectively where no injustice would arise (see Wilson v First County Trust Limited (No 2)) [2004] 1 AC 816, per Lord Nicholls of Birkenhead at paragraphs 17–22, citing with approval the judgment of Staughton LJ in Secretary of State for Social Security v Tunnicliffe [1991] 2 All ER 712–724). However, whilst acknowledging that there is scope for such retrospectivity, I cannot find it in the present context in view of the subsequent and very compelling speeches in McKerr. The present context is quite different from that in Wilson (which concerned the application of section 6 to a court order made after October 2000 in relation to a hire purchase agreement made before that date).
10. On the first issue, I therefore conclude that the Human Rights Act does not require a Coroner now investigating a death which occurred before the coming into force of the Act to conduct an inquest in an Article 2 compliant manner. It may be that his failure to do so may be actionable in international proceedings in Strasbourg, just as the failure of the Secretary of State resulted in a successful application to Strasbourg in McKerr. However, that does not assist the claimant in the domestic context. Before leaving this issue, I observe that in Regina (on the application of Challender) v Legal Services Commission [2002] EWHC 925 (Admin), Richards J expressed a similar view, albeit obiter, observing that he would have reached the same conclusion whether the matter were being considered by reference to section 6 or section 3. Moreover, the conclusion I have reached is also reflected in the decision of the Court of Appeal in Northern Ireland in Police Service of Northern Ireland v. McCaughey [2005] NICA 1 (which differed from the earlier conclusion of another constitution of the Court of Appeal in Northern Ireland in Jordan [2004] NICA 29).

Issue 2: Was the Inquest Jamieson compliant?

11. The fallback submission on behalf of the claimant is that there was "insufficiency of inquiry" even by reference to the pre-Human Rights Act requirements set out in Jamieson. In that case the Court of Appeal considered the provisions of section 11 of the Coroners Act and rule 36 of the Coroners Rules 1984. I have already referred to the provisions of section 11(5)(b)(ii) and the question "how… the deceased came by his death" Rule 36 is in the following terms:

"(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 [1994] 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'."

12. There is no doubt that the Coroner in the present case had these principles well in mind. For example, the transcript discloses one exchange with counsel then representing the family in which the Coroner said:

"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.

13. Having regard to the principles set out in Jamieson and the other authorities to which I have referred, I am entirely satisfied that the Coroner was entitled to proceed as he did. He received a considerable amount of evidence relating to Kelly's background and to the events of the last two days of her life. Several witnesses gave evidence about 9 and 10 November. They included the custody officer at Belgravia Police Station, the solicitor who had dealt with Kelly at Horseferry Road Magistrates Court, a probation officer who also saw her there, a doctor who acted as Force Medical Examiner at Belgravia Police Station, a mental health project worker who had seen Kelly at the Day Centre which she visited on 10 November and a doctor who had dealt with her at the Drop In Centre very shortly before her collapse in Wardour Street. The Coroner was undoubtedly entitled to conclude that, under the pre-Human Rights Act law, it was unnecessary for there to be a detailed investigation into how the warrant came to be executed erroneously.
14. After the verdict of misadventure had been returned, the coroner closed the inquest with these words:

"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:

15. I agree.