England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		13 February 2006

1. LORD JUSTICE RICHARDS: This is the decision of the court. In these judicial review proceedings the Ministry of Defence ("the MoD") challenges the verdict reached at a second inquest into the death of Ronald Maddison, who died on 6 May 1953 at the age of 20 in the course of an experiment conducted on him at Porton Down into the effects of poisoning by the nerve agent Sarin. The jury at the second inquest returned a verdict of unlawful killing. In the claim form, the MoD sought to quash the inquisition incorporating that verdict and submitted that it would not be appropriate to order any further inquest.
2. There were three possible bases for the jury's verdict of unlawful killing: (1) unlawful act manslaughter, based on absence of consent by the deceased to the experiment upon him; (2) gross negligence manslaughter by reason of the negligent failure to obtain the consent of the deceased; and (3) gross negligence manslaughter relating to the conduct and planning of the experiment on the deceased.
3. The MoD's challenge relates to bases (1) and (2), not to (3). The defendant to the proceedings is the coroner who conducted the inquest, Her Majesty's Coroner for Wiltshire and Swindon. So far as relevant, the interested parties are, first, the deceased's sister, Lilias Craik, who represents the deceased's family; second, the Chief Constable of the Wiltshire Constabulary, which carried out an extensive police investigation that led to the quashing of the original inquisition and to an order of the Divisional Court in 2002 that a second inquest be held; thirdly, Lady Adrian, widow of the medical officer present during the experiment on the deceased; and finally the Porton Down Veterans Support Group. The MoD, the coroner and the family have been represented by counsel; the Chief Constable by a solicitor advocate; Lady Adrian is in person; and the Veterans Support Group has been represented by its spokesman, Mr Gow. A further interested party, Mr John Muir, has not played any part before us today.
4. The hearing was listed for ten days, starting today. As a result of discussions last week, however, between the MoD and the family, a proposal agreed between them has been placed before us today. It is in these terms:

"1. The Ministry of Defence have always accepted that there was sufficient evidence for the coroner to leave to the jury the issue of whether the deceased was unlawfully killed as a result of gross negligence in the conduct and planning of the experiment.

2. Having regard to all of the circumstances, the deceased's family do not challenge the Ministry of Defence's claim in these proceedings that there was insufficient evidence for the coroner to leave to the jury the issue of whether the deceased did not consent to the application of what was defined by the coroner as a 'chemical warfare nerve agent in a non-therapeutic experiment, ie that there was insufficient evidence for the coroner to leave to the jury the verdict of unlawful act manslaughter.

3. In the light of the above, the deceased's family do not challenge the Ministry of Defence's claim that the issue of whether the Porton Down scientists were grossly negligent in obtaining the deceased's consent to the experiment as so defined should not have been left to the jury, ie that he should not have left to the jury the verdict of gross negligence manslaughter in relation to the obtaining of consent.

4. In all of the circumstances if it is accepted that the verdict of unlawful act manslaughter and the verdict of gross negligence manslaughter in relation to the obtaining of consent should not have been left to the jury, the Ministry of Defence will no longer seek to quash the verdict of unlawful killing.

5. The court is accordingly invited to vary paragraph 4 of the form of inquisition to add the words "by reason of gross negligence manslaughter relating to the conduct and planning of the experiment on the deceased'."

The paragraph to which those words are to be added reads as follows in the inquisition: "Ronald George Maddison was killed unlawfully".

5. In the course of presenting that proposal to the court this morning, Mr Havers QC, who appears for the MoD, has made an important additional concession on behalf of the MoD. He conceded that the evidence at the inquest was such that, if the jury had considered the issue of gross negligence manslaughter relating to the conduct and planning of the experiment on the deceased, the only verdict it could reasonably have returned on that issue was one of unlawful killing. This goes beyond the concession in the written proposal which we have read, that there was sufficient evidence for the coroner to leave to the jury on that issue. It is a concession not simply that the jury could have reached a finding of unlawful killing on the issue, but that it would have reached that finding. On that basis, Mr Havers invites the court to give effect to the proposal. He submits that the court has power to do so, and he has cited, in that connection, Jervis on Coroners (2002 Ed), paragraph 19-41; R (Longfield Care Homes Limited) v HM Coroner for Blackburn [2004] EWHC 2467 Admin; and R(Mowlem Plc) v HM Deputy Coroner for Avon [2005] EWHC 1359 Admin
6. In both the Longfield Care Homes case and the Mowlem case it was held by judges of the Administrative Court that the court had power to amend an inquisition by the substitution of words in an appropriate case. Only in Mowlem was the jurisdictional issue argued. In that case, Wilson J held that the power existed, but that it was to be exercised with the greatest caution. He said:

"The bottom line, so it seems to me, is that words can be thus substituted if they are words to which the decision-maker could not object as unreflective of his reasonable determination."

7. Mr Rees QC, for the family, also invites the court to give effect to the agreed proposal which he submits meets the justice of this case.
8. Mr Hough, for the coroner, has made clear that the coroner takes a neutral stand on the substantive issues in the case, but he has raised three concerns about the proposal. First, he submits by reference to Mowlem that the power to substitute a verdict should only be exercised in two situations: (1) if it is, on analysis, the only proper verdict the jury could have reached; and (2) if having regard to all the circumstances, it is clearly what the jury did actually decide. He suggests that the court cannot be satisfied that either of those situations applies here.
9. The second concern that Mr Hough raises concerns the wider public interest. He reminds us of what was said about the public interest by Lord Woolf CJ when quashing the first inquisition: for example, that-

"... there can be no doubt that the concerns which existed as to how Mr Maddison should have been put in a position where he was subject to an experiment which risked his life are still alive today and are still matters of public interest."

10. Thirdly, Mr Hough submits that the proposal would limit the basis of the verdict in a way that all parties submitted to the coroner at the time to be inappropriate. The question whether to invite the jury to indicate the basis of any verdict of unlawful killing was canvassed by the coroner and the decision was taken not to proceed down that line.
11. Having very helpfully and responsibly made all those points for the coroner, Mr Hough has nonetheless made clear that the coroner does not stand in the way of the proposal if the court is persuaded that the amended verdict proposed was the proper verdict.
12. For the Chief Constable, Mr McKay has made clear that the Chief Constable is adopting a neutral position on the proposal, accepting that, if the court endorses that proposal, the verdict as amended will still be consistent with one of the conclusions reached by the police inquiry team.
13. Lady Adrian raises no objection to the course proposed.
14. Mr Gow, for the Veterans Support Group, does object to the proposal, and submits that it would be in the public interest for there to be a ruling on the circumstances in which it is lawful to engage in non-therapeutic testing on humans. He has made clear that the Support Group would not wish, and does not have the means, to take over the defence of the MoD's claim if the family cease to do so. He points out that the costs rules means that, in practice, a challenge of this kind cannot be resisted without public funding.
15. We have given careful consideration to all the submissions we have heard. We recognise that, although the family is satisfied with and has agreed to the proposal, full account must also be taken of the interests of the other parties to the case and the wider public interest. It does seem to us, however, that the proposal represents a sensible and responsible compromise. On the one hand, it is our view that the MoD has a strongly arguable case that there was insufficient evidence on the issue of consent for that issue to be left to the jury in the context of unlawful act manslaughter or of gross negligence manslaughter. Of necessity, that is not a final view since we have not heard full argument on it, but it is a view based on our consideration of the skeleton arguments and our pre-reading of the papers in the case. On the other hand, there was not only sufficient evidence to support a verdict of gross negligence manslaughter relating to the conduct and planning of the experiment on the deceased, but, as is now conceded on behalf of the MoD, such a verdict was the only verdict properly open to the jury on that issue. The proposal would give full effect to that position, leaving undisturbed the jury's essential verdict that Ronald Maddison was unlawfully killed, but spelling out in terms a proper basis for that verdict.
16. We are satisfied that, following Longfield Care Homes and Mowlem, the court has power to make the order proposed. It is an order that the court could make if, having heard full argument, it decided that the coroner had erred in leaving the consent issues to the jury, but that the jury would nonetheless have returned a verdict of unlawful killing on the basis of gross negligence manslaughter relating to the conduct and planning of the experiment on the deceased. It seems to us that it is equally an order that can properly be made when giving effect to a sensible and responsible compromise of the kind proposed.
17. In those circumstances, it does not seem to us to be in the interests of the parties or in the wider public interest to require the case to be argued out over the next ten days or so. The public interest in this matter has already been substantially served by the second inquest, which brought into the open the full circumstances in which nerve agent experiments were conducted at Porton Down and the deceased met his death. The retention of a finding of unlawful killing ensures that the message resulting from that second inquest is not diluted.
18. Whilst we recognise the strength of feeling on the part of the Veterans Support Group whom Mr Gow represents, we do not feel that there is a sufficient general public interest to be served by exploring further the legal and factual issues concerning the deceased's consent to non-therapeutic testing such as occurred in this case. The focus of the inquiry would have to be the law as it stood in 1953, which is not necessarily the law as it is today. We think it unlikely that a ruling would enable points of major importance for the future to be established.
19. It is our view that the public interest in this case is best served by achieving finality on the basis proposed. We therefore endorse the agreed proposal, which will need to be embodied in an order of the court. We still have to consider applications for costs and any other consequential matters.
20. We cannot end this ruling, however, without paying tribute to the achievement of the coroner in this case. He coped admirably with complex factual and legal issues, maintaining firm control over the inquest, giving multiple rulings on matters of procedure and substance, and concluding with a carefully structured and detailed summing-up to the jury. Legal challenges were perhaps inevitable given the sensitivity and complexity of the case, but the fact that these proceedings have resulted in the compromise to which the court is now giving effect should not be allowed to obscure the excellence of the coroner's overall handling of the inquest.
21. MR HAVERS: My Lord, perhaps we on this side will draw up a first draft of the order of the court, circulate that amongst the parties and hope to reach agreement and then send it over through the usual channels.
22. LORD JUSTICE RICHARDS: Yes, please.
23. MR HAVERS: So far as costs are concerned, the Ministry of defence have agreed to pay the family's costs of these judicial review proceedings, so no issue arises there. The MoD has not agreed to pay anyone else's costs and does not understand any other party to be seeking their costs, other than the Chief Constable. Perhaps I can, as it were, hand over to Mr McKay to make his application to your Lordship.
24. LORD JUSTICE RICHARDS: Yes, let me just check, nobody else has an application for costs?
25. MR HOUGH: My Lord, no, we certainly do not.
26. MR REES: My Lord, before Mr McKay addresses you, there is a discrete costs issue which may have been encompassed already by what is said. I am on my feet, so I may as well deal with it. My Lord, costs were reserved following an unsuccessful application to stay the inquest, which was determined by Forbes J on 29 October 2004.
27. LORD JUSTICE RICHARDS: Right.
28. MR REES: My Lord, my learned friend who appears for the Ministry and I have been able to discuss that aspect today. My understanding is that the order that certainly the Ministry would seek and we would support is simply no order as to costs in relation to those.
29. MR HAVERS: My Lord, that is right. These were separate freestanding judicial review proceedings brought by the family.
30. LORD JUSTICE RICHARDS: This was the stay application?
31. MR HAVERS: This was the stay application with a view to staying the proceedings, the summing-up, because the family then objected to some of the rulings which the coroner had made, and which he was proposing to incorporate, no doubt, into his directions to the jury. Those judicial review proceedings incorporated an application for a stay, as your Lordship points out, which was unsuccessful. My learned friend is entirely correct, it is agreed between us that there should be no order as to the costs of those proceedings, but my learned friend needs to discontinue those proceedings because at the moment they are still, as it were, theoretically alive and well, albeit not proceeding anywhere. So if he would seek your Lordship's permission to discontinue those proceedings or to withdraw them, than that completes the exercise.
32. LORD JUSTICE RICHARDS: It would certainly be very convenient if those proceedings could be dealt with as part of the order in this case.
33. MR HAVERS: Exactly, and we would propose to do so.
34. MR REES: My Lord, I make that application.
35. LORD JUSTICE RICHARDS: We will certainly grant you permission to discontinue those proceedings with no order as to costs. Both those points will be incorporated into the order to be agreed. Yes, Mr McKay.
36. MR MCKAY: My Lord, I have four or five brief points to make in support of the application for costs on behalf of the Chief Constable. The first is that these proceedings were brought by the Ministry of Defence. Secondly, when determining whether to take a neutral or adversarial stance in connection with these proceedings, the Chief Constable approached the Ministry and invited them to concede that the Chief Constable would not be vulnerable to a costs order in the event the claim was successful. The Ministry of Defence, perhaps understandably, said that they were not prepared to indicate that the Chief Constable would not be in jeopardy of costs if in resisting proceedings he failed. That being the case, the Chief Constable has proceeded vulnerable to the costs order in the event that the claim was successful, and I see no reason why, the proceedings having been resolved in the way that they are, the Chief Constable ought not to succeed in relation to costs.
37. LORD JUSTICE RICHARDS: What is the Chief Constable doing as a party to the proceedings anyway?
38. MR MCKAY: My Lord, the feeling was that, in view of the way the inquiry had progressed and the importance the Chief Constable had played both in quashing the original inquisition and then in relation to producing witnesses within the coronial proceedings who may have a role in the subsequent criminal proceedings (inaudible). Because of course this was only one of large number of investigations the Wiltshire police were handling at the time, it was felt important that the Chief Constable was represented within the inquest proceedings in order, as it were, to protect the interests of certain witnesses who may be required to give evidence in criminal proceedings.
39. LORD JUSTICE RICHARDS: That protective purpose I can understand, but you have come in on a broader basis than that, actually seeking to ventilate quite a large range of legal arguments concerning the coroner's ruling.
40. MR MCKAY: My Lord, yes. We felt that the role the Chief Constable played in the public law proceedings is entirely consistent with the role he played in the inquest, which I have to say was recognised by all the parties as quite an important role -- often and quite frequently cited by all parties as almost a friend to the court at different times. Certainly the Chief Constable has not tried to adopt a position inconsistent with that during the course of these proceedings.
41. My Lord, the agreement brokered between the MoD and the family has been lately brokered and it is of course commendable, and you have heard what the Chief Constable had to say about it, but it is difficult to see that there is anything that has been resolved today that could not have been resolved much earlier in the proceedings. As a consequence, the Chief Constable has incurred costs he would not otherwise have incurred, and although -- and this is the thrust of my final submission -- although the agreement has been reached on the verdict and variation of the verdict, there has been a large number of points and challenges by the MoD effectively not pursued or discontinued. As my Lord has already indicated, in respect of those issues, the court took issue. My Lord, those are essentially the points in support of the application for costs.
42. LORD JUSTICE RICHARDS: Thank you very much. Mr Havers?
43. MR HAVERS: My Lord, first, we would pray in aid the general rule, which is set out in volume 1 of the White Book on page 1583, and I am looking toward the bottom of the page under paragraph 54.16.7 about five lines down:

"In judicial review proceedings the claimant will normally be ordered to pay the costs of the defendant who successfully resists the claim for judicial review. The courts do not generally order an unsuccessful claimant [and I will come back to the word 'successful' in a moment] to pay two sets of costs, that is to say the defendant's costs and the costs of an interested party served with a claim form. The courts may award two sets of costs where the interested party deals with a separate issue not dealt with by the defendant, or where the defendant and interested party has separate and distinct interests which require separate representation."

44. Your Lordship will be all to familiar with that general rule in judicial review proceedings, and for present purposes I substitute for the words "the defendant" in that exposition of the rule, the words "the family", given the neutral role that the coroner has taken throughout and given that it was the family who have until now effectively stood in the shoes of, or played the role of, the defendant in seeking to resist the Ministry's claim. So the general rule is that the claimant -- and that is to say the unsuccessful claimant, I stress -- would only be expected to pay one set of costs and not two.
45. Secondly, the Chief Constable's position at the inquest was expressly stated to be neutral, and can I for this purpose take your Lordships to -- I do not suppose you have -- in fact I am sure you have not got all the transcripts available to you.
46. LORD JUSTICE RICHARDS: I think we have, yes.
47. MR HAVERS: Day 32, that is 29 June, and page 191. There are four pages of transcript on each A4 size page of the bundle. At page 191 during an exchange between the coroner and Mr McKay, line 13:

"The Ministry of Defence have their stance and I am serving the interests of my own client, who adopts, and I hope it is demonstrable now, has adopted a neutral stance throughout this case."

48. He goes on to say:

"Sometimes that is not popular with those who sit the other end of this bench; sometimes it is, but merely because the family say the world is flat does not mean that I should not argue that it is really round. That is the position."

49. So, my Lord, given in particular that Mr McKay has just indicated that the position that he was adopting in these judicial review proceedings is the same as the position he adopted at the inquest, that is to say a neutral position, we respectfully submit that it is not properly open to him now to be seeking his costs from the MoD, the claimant.
50. My Lord, thirdly, in his skeleton argument the Chief Constable has scarcely touched on the question of sufficiency of evidence.
51. LORD JUSTICE RICHARDS: He has dealt more with what one might call the prior legal issues relating to consent.
52. MR HAVERS: Absolutely, and a closer analysis of his skeleton argument would demonstrate that where he has addressed the question of the sufficiency of evidence, he has done so by reference to what he submits is the proper legal approach to consent; not by reference to the approach that the coroner took.
53. LORD JUSTICE RICHARDS: Of course, those issues would have been live had this matter proceeded. We would have had to consider what the proper legal approach was.
54. MR HAVERS: Your Lordships may or may not have done. One of the interesting issues that would have arisen would have been the extent to which your Lordships would have concluded that it is was necessary or appropriate to consider whether any of the rulings of the coroner were, as it were, too favourable to the MoD or not, and there might have been some lively debate as to whether that was a road that was permissible or appropriate for the court to go down. But certainly in his skeleton argument the Chief Constable has sought to argue that the approach of the coroner was erroneous -- at least that the proper approach would have been a different one, although at the end of that section of the skeleton argument the Chief Constable concludes by saying -- or Mr McKay on his behalf concludes by saying -- if in fact you marry or you match what we say is the correct legal approach against what the coroner actually did, then we are not suggesting that any great prejudice, as it were, arose. But it is as against what the Chief Constable has said in his skeleton argument was or should have been the correct legal approach. But in his skeleton he then goes on to assess the sufficiency of the evidence.
55. My Lord, the last point we make is this, the last thing I want to do now is to engage into a debate as to which side has been successful or not. That is not appropriate given the events which have transpired, and I do not propose to embark on it. But I think it can fairly be said in answer to Mr McKay's application that it cannot be said that the MoD have been wholly unsuccessful, if one is to talk in those terms, as a result of the compromise. I do not want to say any more than that. But if one bears in mind the two principal grounds that the MoD have sought to challenge the verdict on, and the way in which this matter is now to be disposed of, it cannot, we respectfully submit, be suggested that the MoD have been unsuccessful: on the contrary, it may be thought that they have achieved a good deal of what they set out to achieve. I do not want to say any more on that, but that is relevant to the question of the Chief Constable's costs. Indeed, it would be relevant if there was an application by someone more directly concerned than the Chief Constable, but it is certainly another relevant factor in relation to his application. So, my Lord, for all these reasons, we respectfully resist his application for costs.
56. LORD JUSTICE RICHARDS: Thank you very much. Is there anything you want to say in reply?
57. MR MCKAY: My Lord, perhaps on the issue of neutrality, we have demonstrably shown that we have not been neutral in the judicial review proceedings for all the reasons already identified, and of course if there was any support required for that, it has to be that at the previous hearing when the coroner sought a protected costs order an approach was made to the MoD seeking an indication from them that they would not pursue the Chief Constable for costs if he resists the legal grounds in the claim. The clearest indication was given that they may seek an order for costs in the circumstances.
58. LORD JUSTICE RICHARDS: Thank you very much.
59. We refuse the application by the Chief Constable for costs. We are far from certain that the Chief Constable had a legitimate interest in arguing for any particular verdict in this case, and whilst he was certainly here properly to assist the court and as we have been told to protect the interests of individuals who might have to give evidence in criminal proceedings, that would not be a basis upon which any award of costs should be made in his favour.
60. Insofar as he was here adopting, and properly adopting, an adversarial role in resisting the MoD's claim, his role was very much subsidiary to that of the family, and, in our judgment, it is not an appropriate case in which to order a second set of costs. In any event, we do not think that the compromise to which the court has given effect can be said to involve any positive success for the Chief Constable in the arguments that he was advancing by way of resisting the claim.
61. For all these reasons, the Chief Constable must bear his own costs.
62. MR REES: My Lord, I think finally, the family are publicly funded in these proceedings and indeed in what I will call the previous judicial review, namely that referred to as encompassing, in effect, the unsuccessful stay application before Forbes J.
63. LORD JUSTICE RICHARDS: So you want a detailed assessment for public funding purposes?
64. MR REES: I am told I need a public funding assessment. Insofar as it is necessary, if it is necessary, that should include junior and leading counsel.
65. LORD JUSTICE RICHARDS: I do not think that it is for this court to deal with that. You have your certificate which either covers both of you or it does not. Insofar as it does, if we order detailed assessment, that will ensure that you both get your public funding remuneration. I think your junior is nodding, so I am probably right.
66. MR REES: If the junior nods, then I will sit down.
67. LORD JUSTICE RICHARDS: Yes, Mr Gow?
68. MR GOW: I was just wondering after listening to that whether it is worth our while putting our costs in for the MoD.
69. LORD JUSTICE RICHARDS: Are you going to make an application or not?
70. MR GOW: That is why I am asking. Would it be worthwhile making the application?
71. LORD JUSTICE RICHARDS: I think it is for you whether to make an application, and then for us to rule on whether it is a good application or not.
72. MR GOW: Your Lordships, we are down here because of the challenge from the MoD, and we felt duty bound to our members that we at least put submissions in and do what we possibly could. It has cost both myself and Mr Roll(?) to be here in travel. I am from Merseyside; Mr Roll from Maidstone. But we do have to stay, we have had to stay. So we would leave it, if I may, to your Lordships to decide what would be fair.
73. LORD JUSTICE RICHARDS: Mr Havers, what is the position of the MoD in relation at least to the expenses incurred by the representatives of the Support Group in this matter?
74. MR HAVERS: My Lord, I was not anticipating any sort of application from the Veterans Group. If your Lordship would like me to take brief instructions as to their expenses, of course I will.
75. LORD JUSTICE RICHARDS: If you would.
76. MR HAVERS: My Lord, I am instructed the MoD would offer to pay the reasonable expenses of those of the Veterans Group who are here today -- their reasonable expenses in attending the hearing.
77. LORD JUSTICE RICHARDS: I think that is a very fair and appropriate course to adopt. On the basis of that offer, I think the right course is to incorporate that as part of the order of the court. David Clarke J says it is the sort of thing where it might help if a figure could be agreed quickly, rather than be left over for subsequent detailed argument.
78. MR HAVERS: Perhaps I could just have a quiet word with Mr Gow, if your Lordship would allow me. I am most indebted to my Lord, David Clarke J. Mr Gow has suggested a figure of £300. We are content to pay that figure.
79. LORD JUSTICE RICHARDS: In that case we so order in the agreed sum of £300. Beyond that there is no order in relation to the Veterans Support Group's costs.
80. Thank you very much indeed. Is there any other matter that we need deal with?
81. MR HAVERS: No, my Lord.
82. LORD JUSTICE RICHARDS: Good. Thank you everybody for your assistance in the matter. For the reasons that we gave in our decision, we think that it is a very sensible way of dealing with this case.