QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen on the application of Pekkelo
|- and -
|HM Coroner For Central & South East Kent
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
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No representation for the Defendant
Crown Copyright ©
Mr Justice Hodge :
Judicial review claim
a) Whether the coroner erred in law in his legal direction as to the requirements that had to be met before "neglect" be found by the jury;
b) Whether the coroner erred in law in his approach to the manner in which he elicited the jury's conclusion on the central issues, most notably in relation to narrative verdicts.
Summing up – the evidence
"Had she gone in on the early morning of the 9th, I think her prognosis would have been no different than it was. I think she would have died. Statistically the prognosis may have been a little better. It may not have been 70% it may have been 65% chance of survival. I think for her to have had a realistic chance of cure, it would have been 48 hours before."
The surgeon justified that view on the basis of the deceased having a very low white cell count and people who survived would have a high white cell count.
"(9) Neglect in this context means a gross failure to provide adequate nourishment or liquid, or provide or procure basic medical attention or shelter or warmth for someone in a dependent position (because of youth, age, illness or incarceration) who cannot provide it for himself. Failure to provide medical attention for a dependent person whose physical condition is such as to show that he obviously needs it may amount to neglect. So it may be if it is the dependent person's mental condition which obviously calls for medical attention (as it would, for example, if a mental nurse observed that a patient had a propensity to swallow razor blades and failed to report this propensity to a doctor, in a case where the patient had no intention to cause himself injury but did thereafter swallow razor blades with fatal results). In both cases the crucial consideration will be what the dependent person's condition whether physical or mental appeared to be.
… (12) Neither neglect nor self neglect should ever form part of any verdict unless a clear and direct causal connection is established between the conduct so described and the cause of death."
Jury direction on neglect
"So far as you adding the phrase 'due to neglect' to a verdict of natural causes, there has to be gross failure to provide or procure basic medical attention for somebody in a dependent position because (in this case) of illness she cannot provide it for herself. But it must be objectively apparent to the relevant staff that the person was in need of medical attention. I suppose you have to ask yourself whether in these circumstances and suffering from a boil that would be something which did require medical attention. Failure to provide medical attention for a dependent person whose physical condition is such as to show that she obviously needs it may amount to neglect but that again is a matter for you. The crucial consideration will be what the dependent person's condition was, be it physical or mental, and how it appeared to be. Members of the jury, neglect should not ever form part of a verdict unless there is a clear and direct causal connection established between the conduct in this case of the immigration authorities, in other words the conduct that was described and the cause of death."
"To find neglect in a case you need to be satisfied that the non provision of medical attention to Mrs Ozmico and or the delay in transferring her to hospital amounted to a gross failure on the part of the immigration authorities who were directly or indirectly involved with her on 8th and 9th July 2003 and the seriousness of Mrs Ozmico's medical condition was objectively apparent to the staff of those organisations and again the immigration authorities together with the fact that she was obviously in need of urgent medical attention. Lastly, on the balance of probabilities, Mrs Ozmico would have survived had she been transferred to hospital on 8th July 2003 or earlier on 9th July 2003. Again those are matters which I have already dealt with."
Article 2 of the European Convention
"The procedural element contained in article 2 of the Convention imposes the minimum requirement that where a state or its agents potentially bear responsibility for loss of life, the event should be subject to an effective investigation or scrutiny which enables the facts to become known to the public, and in particular to the relatives of any victims."
"The purposes of such an investigation are clear: to ensure so far as possible that the full facts are brought to light; that culpable and discreditable conduct is exposed and brought to public notice; that suspicion of deliberate wrongdoing (if unjustified) is allayed; that dangerous practices and procedures are rectified; and that those who have lost their relative may at least have the satisfaction of knowing that lessons learned from his death may save the life of others."
"This will not require a change of approach in some cases where a traditional short form of verdict would be quite satisfactory, but it will call for a change of approach in others (paragraphs 30 – 31 above). In the latter class of case it must be for the coroner in the exercise of his discretion to decide how best in the particular case to illicit the jury's conclusion on the central issue or issues. This may be done by inviting a form of verdict expanded beyond those suggested in form 22 of schedule 4 to the rules. It may be done and has (even if very rarely) been done by inviting a narrative form of verdict in which the jury's factual conclusions are briefly summarised. It may be done by inviting the juror's answers 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 decisions should not be disturbed by the Court unless strong grounds are shown."
"Moving on to the last alternative for you to consider, whether it is an appropriate case for a narrative verdict to be considered on the shortcomings that undoubtedly there were with the immigration authorities in dealing with this in accordance with the guidelines. You may take the view that, given the medical evidence to which I have referred on a number of occasions, that whether those guidelines were followed or whether they were not, did not in any way affect the cause of death which this lady subsequently suffered from. If however you take a different view in that respect so far as you feel that a narrative verdict is one which you would wish to adopt in the natural causes part of the conclusion then having considered your verdict and if you come to that view there will be a number of questions I can put to you to deal with and assist you in reaching a suitable wording to include as a narrative verdict."
"This will not require a change of approach in some cases where a traditional short form of verdict will be quite satisfactory."
MR RUTLEDGE: My Lord, I hope that you received the proposed grounds of appeal.
MR JUSTICE HODGE: Yes. No problem with your costs order.
MR RUTLEDGE: Thank you, my Lord.
MR JUSTICE HODGE: I am not minded, unless you have anything additional to say --
MR RUTLEDGE: I hesitate to add any gloss to Mr MacDonald's grounds of appeal. I hope they are self-explanatory. Working backwards, they go back to the original criticism and examine the reasons given in your judgment. It really is for you to decide whether there are merits in that --
MR JUSTICE HODGE: I am not going to grant leave. You will have to go to the Court of Appeal and ask them.
MR RUTLEDGE: Thank you very much, my Lord.
MR JUSTICE HODGE: I hand down the judgment as well.