QUEEN'S BENCH DIVISION
London WC2A 2LL
B e f o r e :
|PARKES AND OTHERS||Claimant|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||Defendant|
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Miss J Richards (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
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"Because the Treasury Solicitor acts for the Prison Service as a whole, separate legal representation for individuals should not normally be necessary. Conflicts of evidence sometimes arise but the Treasury Solicitor still represents all employees concerned collectively provided there is no conflict of interest. An example of when separate legal representation might be needed is if on an important point there is a dispute of facts between what the Prison Service says and what the employee says, or where the Coroner has identified an individual as being someone whose actions will come under closer scrutiny than most and has granted him/her 'properly interested person' status. If there is a conflict of interest, decisions as to the principle and funding of separate legal representation will be at the discretion of the Prison Service."
(1) the identity of the deceased;
(2) place of death;
(3) time of death; and
(4) how the deceased came by his death.
In Middleton v West Somerset Coroner  UKHL 10, Lord Bingham explained that the word "how" did not just mean "by what means" but "in what circumstances". That construction gives a significantly wider meaning than the alternative that Lord Bingham considered; and his judgment is relevant in the present case since much of the inquest was devoted to determining in what circumstances Anne Marie Bates died.
"Once again it should not be forgotten that an inquest is a fact-finding exercise and not a method of apportioning guilt. The procedure and rules of evidence which are suitable for one are unsuitable for the other. In an inquest it should never be forgotten that there are no parties, there is no indictment, there is no prosecution, there is no defence, there is no trial, simply an attempt to establish the facts. It is an inquisitorial process, a process of investigation quite unlike a trial where the prosecutor accuses and the accused defends, the judge holding the balance or the ring, whichever metaphor one chooses to use."
"In inquest proceedings the Treasury Solicitor's client is the government department or agency concerned, in cases of deaths in prison custody the client is the Prison Service. The Treasury Solicitor does not enter into a solicitor and client relationship with individual staff members in their personal capacity but, on behalf of their employer, provides advice, assistance, information and support to them in connection with inquest proceedings."
"It is the invariable practice of the Treasury Solicitor and any counsel instructed for the inquest to make it clear to individuals that we are not their personal legal advisors."
That appears to be not inconsistent with an account given in a file note of a meeting held on 15th February 2005 which contains the following statement, said to have been made by Mr Williams:
"Mr Williams remained of the view that conflict was something which happened rarely. Mr Williams said that the sole purpose of representation by the Treasury Solicitor was to look after the interests of the Prison Service."
"The officers were told by the Governor that there were rumours circulating about Miss X and Officer Barry Stevens and that Barry had now gone 'on the sick' as a direct consequence of the spreading of these rumours. The Governor then said that a line needed to be drawn under all of this and that if it did not cease then the officers spreading these rumours would all face disciplinary action."
"We the jury find that there were a number of contributing factors to Anne Marie Bates' death. The most significant issues were --
(1) Ann Marie's placement on the "A" wing was inappropriate due to her vulnerability . . .
(3) There is sufficient evidence that there was an inappropriate relationship between a Prison Officer and an inmate. We are satisfied that this was the driving force between Anne Marie's inappropriate transfer to "A" wing."
"The Minister may from time to time make regulations and give instructions for controlling the conduct of the Service pursuant to that order."
Successive Ministers have made and amended a Civil Service Code which sets out instructions to members of the civil service. Unsurprisingly, it contains, in paragraph 5, the statement that "Departments and agencies must comply fully with legislation which binds the Crown".
"Civil servants may be involved in legal proceedings or formal inquiries as a consequence of their employment. Unless the circumstances are covered by the rules set out in [certain specified paragraphs] departments and agencies have a discretion to grant civil servants so involved some or all of their legal representation or pay for some or all of their legal costs. In deciding whether to exercise this discretion, departments and agencies must take account of the following considerations --
(a) whether or not it is in their interest to grant assistance;
[Here I interject that the grammar is ambiguous. The word "their" is capable of referring to the civil servants or the department; but both parties submitted to me that "their interests" means the interests of the relevant departments; and on reflection I think that this is correct]
(b) whether the act in question was committed or suffered within the scope of the civil servant's employment."
The schedule further provides that department and agencies must also:
(b) permit civil servants involved in an inquest or fatal accident enquiry as a result of their official duty to be represented by the legal representatives of the department or agency, provided there is no conflict of interest. Otherwise assistance with legal representation is at the discretion of the department or agency."
"The Treasury Solicitor represents the Prison Service and its employees generally in all matters concerning inquests and will, as part of that task, provide legal advice and assistance to individuals who are involved as witnesses . . . "
The statement that the Treasury Solicitor will provide legal advice and assistance to individuals involved as witnesses may be contrasted with the statement attributed to Mr Williams on 15th February 2005 that "the sole purpose of representation by the Treasury Solicitor was to look after the interests of the Prison Service". Paragraph 6.8 of the Prison Service Order expands on what is meant by a "conflict of interests". It states such a conflict will arise "if on an important point there is a dispute of facts between what the Prison Service says and what the employee says".
"There is a conflict of interest if --
(a) you owe, or your firm owes, separate duties to act in the best interests of two or more clients in relation to the same or related matters and those duties conflict."
"Our counsel believes that we must continue to act on [Officer Parkes'] behalf which prevents us from assisting Mr Stevens . . . In our view there is a clear conflict."
"(i) The claimants alleged, and Officer Stevens denied, an improper relationship between him and Miss X.
(ii) The claimants alleged, and Officer Stevens denied, Officer Stevens' involvement in moving Anne Marie Bates to an unsafe place.
(iii) The claimants alleged, and Officer Stevens denied, that Anne Marie Bates was moved to further the improper relationship between Officer Stevens and Miss X.
(iv) The claimants alleged, and Officer Stevens denied, that Anne Marie Bates was moved against Prison Rules.
(v) The claimants alleged, and Officer Stevens denied, that Officer Stevens had falsified the records to conceal his wrong-doing in moving Anne Marie Bates.
(vi) The claimants alleged, and Governor Dawn Elaine denied, that she had threatened with disciplinary action any officer who made allegations against Officer Stevens."
"The evidence given by three prison officers may have differed in certain respects from that given by other officers and staff [but] my client maintains that such differences fall far short of a conflict of interest."
This case did not disclose a mere difference "in certain respects from that given by other officers and staff". It disclosed a fundamental conflict between those accusing one officer of grave misconduct, contributing significantly to a prisoner's death -- conduct against which (they said) the Governor had failed to take effective action -- and the interests of the accused officer, who denied those allegations, and of the Prison Governor, who denied the allegation against her. This amounted to more than a difference of evidence "in certain respects".
"Where departments and agencies have delegated powers of discretion they must make clear to their staff how these will be applied by setting out the relevant rules and procedures in their handbook."
It has not been the subject of debate before your Lordship. The factual situation is absolutely clear that there is no such relevant law procedure and therefore, my Lord, we do not pursue it further.