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 WC2A 2LL
		21st November 2008

1. MR JUSTICE PLENDER: This application for judicial review raises a question as to the meaning of the term "conflict of interests" in Prison Service Order 2710, Deaths in Custody, which is drawn from the Civil Service Order in Council 1995 and provides in paragraph 6.8 as follows:

"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."

2. In this case, as is commonly the case, the issue arises in the context of coroners' inquests. These, as I was reminded, present some features which distinguish them from courts. An inquest is a fact-finding inquiry conducted by a coroner, with or without a jury, to supply reliable answers to four questions of fact:

(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 [2004] 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.

3. It is not the function of the coroner or his jury to determine, or to appear to determine, the question of any criminal or civil liability for the death of the deceased or to apportion guilt. Nor is the function of an inquest to obtain evidence for use in subsequent criminal or civil proceedings. In McKerr v Armagh Coroner [1990] 1 WLR 655, Lord Goff of Chieveley reiterated a well-known passage in the speech of Lord Lane CJ in R v South London Coroner ex parte Thompson of 8th July 1982:

"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."

4. The issue comes before me in the following way. On 31st August 2001 Anne Marie Bates, an unconvicted 19-year old on remand awaiting trial, died while in custody on "A" wing in Her Majesty's Prison Brockhill. "A" wing is a wing for adult prisoners. It was not the normal policy of the prison to place young persons there, particularly not young persons like Anne Marie Bates, who lacked the confidence necessary to tolerate life in the society of the adult prisoners on that wing. Miss Bates had formerly been imprisoned with juveniles on the "D" wing. Some of the prison officers at Brockhill believed that she had been moved to "A" wing because of an inappropriate relationship between a male prison officer called Barry Stevens and a prisoner on the "A" wing, Miss X. Among the prison officers holding that view were the applicants, Alex Davison, Sandra Clarke and Helen Abrahams.
5. The coroner asked those three officers to give evidence at the inquest of Anne Marie Bates, along with several others including Officer Stevens, officers called Wendy Parkes and Kirsty Jameson and the Prison Governor, Dawn Elaine. The Treasury Solicitor provided representations for various officers, including Officer Stevens, Kirsty Jameson and Governor Elaine. The claimant was separately represented, at the cost of the Prison Officers' Association. Solicitors acting for the Prison Officers' Association asked the Treasury Solicitor to meet the cost of the claimants' representation, and that of Officer Parkes, on the grounds that there was a conflict of interest between the claimants and Officer Parkes and those represented by the Treasury Solicitor; but this was refused.
6. Separate representation was later granted, after the inquest, to Officer Parkes, upon the ground that she had brought, or was bringing, proceedings against the Prison Service for unfair dismissal (proceedings in which she was successful) and was also making a claim for damages claiming that she had suffered post-traumatic stress disorder in the aftermath of the discovery of Anne Marie Bates' body. I need not enquire into the correctness or otherwise of the grant of separate representation to Officer Parkes; but in considering whether the treatment of Officer Parkes and the three claimants was rational, I note that if there was any conflict of interest between Officer Parkes and the defendant, that difference had nothing to do with the conduct of the inquest.
7. In the case of Kirsty Jameson, separate representation was not supplied but Ms Jameson did make allegations about an improper relationship between Officer Stevens and Miss X. Once that evidence was given, however, it was too late to think about separate representation. Kirsty Jameson's case appears to have been treated by the Prison Officers' Association as "water under the bridge". I cannot draw any inference from her case and I refer to it no further.
8. John Gerard Williams, a solicitor in the Treasury Solicitor's Department, giving evidence for the defendant, states that in his view "there are very few genuine, real or potential conflicts of interest in inquest representation on behalf of the Prison Service" and that where staff have been separately represented, this is usually because their insurers or their union prefer this. He states:

"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."

He continues:

"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."

9. The inquest into the death of Anne Marie Bates lasted some five weeks. It is plain that at the inquest acute differences arose between the representations of the claimants on the one hand and Officer Stevens on the other. To a lesser degree there were differences between the claimants and Governor Elaine. The difference between the claimants and Officer Stevens scarcely requires explanation. They accused him of an inappropriate relationship with a female prisoner, in consequence of which he was instrumental in causing Anne Marie Bates to be moved to an adult wing of the prison, where she killed herself. He denied those allegations. The differences between the claimants and Governor Elaine arose (as Jennifer Harding explains in paragraph 8 of her witness statement) because the claimants say that she, the Governor, failed to investigate their complaints. Indeed, they say that she threatened them with disciplinary action if they persisted in their allegations. The claimant Alex Davison said in her statement:

"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."

10. Misses Davison, Clarke and Abrahams gave evidence, in which they voiced their criticisms of Officer Stevens and of the move of Anne Marie Bates to the "A" wing. A witness statement from Glyn Travis gives an account of the evidence given by Officer Stevens to the inquest. It is plain that his evidence was at variance with that of Misses Davison, Clarke and Abrahams; for he had maintained that Anne Marie Bates had to be moved after a fight with another inmate, Gemma Simpson, and he denied that there was any truth in the rumours that had been circulating about his inappropriate relationship with Miss X. The claimants say that at the inquest they were subjected to cross-examination by counsel engaged to act for the Prison Service and for Officer Stevens. An account of this is given in a witness statement made on behalf of the defendant, Mr Williams. He responds to what he terms the suggestion "that the claimants faced hostile questioning from the Prison Service", and replied: "Prison Service counsel was simply testing the evidence". It is of little significance whether the tone of the cross-examination is termed "hostile" or not. It is plain on Mr Williams' evidence that counsel representing the Prison Service and Officer Stevens questioned the claimants' evidence.
11. The jury apparently accepted the evidence of Misses Davison, Clarke and Abrahams. They concluded that Miss Bates suffered "accidental death by applying a ligature to herself while not intending to end her life". Turning to the circumstances of the death, the jury stated as follows:

"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."

12. Before considering whether, as a matter of law, the defendant was correct in refusing to provide separate representation for the claimants at the inquest, I must ask whether the claimants have a sufficient interest to make this application for judicial review. The point is a live one in these proceedings because Miss Richards, for the defendant, has submitted that there was nothing to show that the claimants had that interest. What she says this case is really about is whether the Prison Officers' Association or the Treasury should bear the cost of the representation of the claimants.
13. While I accept that the practical issue at stake is whether there should be funding from public sources for the representation of the claimants, I do not accept that it follows from this that the claimants lacked the interest required to institute proceedings for judicial review. They are members of the Prison Officers' Association and, in common with other members, must bear the cost of representation at the inquest if that cost is not borne by the public purse. They have, moreover, a greater interest in the matter than other members of the Association, since the representation that was supplied was for their own representation; and they have an interest in establishing that there was a conflict of interest between themselves and the others represented by the Treasury Solicitor, including Officer Stevens. The proper interpretation and application of Prison Service Order 2710, Deaths in Custody, is a matter of public interest, but the claimant had an interest over and above that of members of the public generally, in ensuring the adequate representation of public servants who are called upon to give evidence at inquests, particularly when those officers propose to ventilate in the inquest claims about very serious misconduct by other officers represented by the Treasury Solicitor.
14. The Civil Service Order in Council 1995 provides in Article 10(c):

"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".

15. A schedule to that order governs legal representation at public expense. This provides in part:

"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."

16. This language is reflected in Prison Service Order 2710, Deaths in Custody, which states in paragraph 6.7:

"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".

17. Further assistance on the meaning of the expression "conflict of interest" is given in the Solicitors' Code of Conduct 2007, which provides in rule 3.01:

"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."

18. It is common ground between the parties in this case that a conflict of evidence does not itself give rise to a conflict of interest; and that conflicts of interest will arise only rarely. Since the circumstances in which a conflict of interest will arise must depend upon the facts of individual cases, I shall not attempt a comprehensive definition of a conflict of interest. But such a conflict may arise if the account to be given of an event by two or more parties is at variance, and the point at issue is an important point, and if the difference is such that a lawyer cannot simultaneously act in the best interests of the opposing parties.
19. I asked Miss Richards of counsel, who represents the Secretary of State, to identify any case in which a conflict of interest has been found to exist where "on an important point there is a dispute of facts between what the Prison Service says and what the employee says". The case to which my question was directed is precisely the one envisaged in paragraph 6.8 of Prison Service Order 2710, Deaths in Custody. Neither Miss Richards nor those currently instructing her were able to identify a single occasion on which such a conflict had been detected. Indeed, I was informed expressly that "there has never been a conflict of interest found as a result of a conflict of evidence."
20. In the present case the interests of Officer Stevens and those of Officers Davison, Clarke and Abrahams were inconsistent. Indeed, they were so inconsistent that any competent solicitor, if asked to represent Officer Stevens and his accusers at an inquest, would appreciate that he could not simultaneously act in the best interests of both. In this very case, solicitors acting for the claimants reported to the Treasury Solicitor by email on 18th November 2005:

"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."

21. Mr Hendy QC, for the claimant, identified the following points on which the evidence of the claimants was at variance with the evidence of those represented by the Treasury Solicitor:

"(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."

22. I accept, of course, that the objective of an inquest is not the same as in a civil or criminal trial; and there are no parties as such. But where some witnesses say that an individual has engaged in conduct which is inappropriate, to the degree of being scandalous and grossly improper, and that this conduct has played a part in the death of a young woman in custody, and that individual denies it, a person representing those witnesses has a conflict of interest with a person representing the accused officer, denying the allegations against him.
23. Solicitors now representing the claimants did propose to the Treasury Solicitor that there should be separate representation for Officer Stevens. It is possible that if he had been separately represented this would have avoided the conflict of which the claimants now complain. But the fact is that the Treasury Solicitor did choose to represent Officer Stevens, along with the Governor and the Prison Service other officers and so a conflict with the claimants' interests arose. It would not have been possible for counsel, consistently with his duty to Officer Stevens, to put to witnesses questions liable to show that the facts were as the claimants alleged and as the jury subsequently found.
24. I therefore conclude that the defendant was in error when stating through the Treasury Solicitor on 6th September 2006:

"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".

25. There was in this case a true conflict of interests: the interest of Officer Stevens, in the maintenance of his good name and his employment, was in conflict with the interests of his accusers in securing the vindication of their claims that he had acted in a grossly improper manner. In finding that there was no conflict of interests, the Secretary of State misconstrued Prison Service Order 2710. I so declare.
26. Leading counsel for the claimants sought initially to persuade me that if it had directed its mind to the right question, the Prison Service could not have failed to provide funding in the present case. It is a position from which he later resiled, so it is unnecessary for me to say more than that Prison Service Order 2710 provides that where a conflict of interests is established, "decisions as to the principle and funding of separate legal representation will be at the discretion of the Prison Service". In the exercise of that discretion, the Prison Service will take account of various factors, including the date on which the application for funding was made, the precision with which the application was made and the conduct of the three claimants. I therefore make a declaration that there was a conflict of interests between the claimants and witnesses represented by the Treasury Solicitor at the inquest into the death of Anne Marie Bates and that the defendant is obliged to exercise the discretion mentioned in the final sentence of paragraph 6.8 of Prison Service Order 2710, Deaths in Custody.
27. I now add a postscript. Taking a wider view of these matters, I do not overlook the importance of guarding against a waste of public money on legal representation; but where a death in custody has taken place, I would attach even greater importance to ensuring that public servants who are called upon to give evidence at an inquest should not be discouraged from telling the truth as they see it. Such discouragement may arise if those making serious allegations of misconduct by a colleague are denied representation separate from that of the colleague against whom the allegations are to be made. That is not far removed from the principle articulated in paragraph 6.8 of Prison Service Order 2710, Deaths in Custody, which states "separate legal representation might be needed if on an important point there is a dispute of facts between what the Prison Service says and what the employee says".
28. MR HENDY: My Lord, in those circumstances can I suggest that perhaps counsel on both sides agree a relevant form of order to give effect to your Lordship's judgment.
29. MR JUSTICE PLENDER: I would be very grateful. I think what I have set out is effectively the form of order and it would be very helpful if you could draw it up. I make a declaration there was a conflict of interest between the claimants and Officer Stevens and the Governor at the inquest into the death of Anne Marie Bates and the defendant is obliged to exercise the discretion mentioned in the final sentence of paragraph 6.8 of the Prison Service Order 2710, Deaths in Custody. A form of order to that effect would be fine.
30. MR HENDY: In those circumstances, my Lord, would your Lordship order our costs to be paid by the defendant.
31. MR JUSTICE PLENDER: I had better hear what Miss Richards says.
32. MISS RICHARDS: My Lord, in relation to costs, that is not opposed: to be assessed if not agreed. My Lord, I am certainly happy to agree the form of declaration with my learned friend. Can I just say in relation to the second part of the suggested declaration that your Lordship read out, it is potentially ambiguous in the sense that requiring the Secretary of State to exercise the discretion could be viewed as requiring the Secretary of State to agree funding.
33. MR JUSTICE PLENDER: That is not what I meant.
34. MISS RICHARDS: I appreciate that, my Lord.
35. MR JUSTICE PLENDER: In an effort to be helpful to your client, I did mention a number of factors to be taken into account.
36. MISS RICHARDS: Your Lordship's judgment is entirely clear. It may be that the wording, perhaps, could be that the Secretary of State is obliged to consider the exercise of his discretion. I am sure we can agree something.
37. MR JUSTICE PLENDER: Mr Brown is expressing agreement. Mr Hendy is remaining non-committal. If the parties are agreed on a form of wording which avoids ambiguity, I should prefer that.
38. MR BROWN: My Lord, we will do our best.
39. MISS RICHARDS: My Lord, finally, just to protect my client's position, I ask for permission to appeal; not because I want to give an indication that is what the Secretary of State seeks, but I do not have a client here present so, without making any arguments because your Lordship has heard them all, I would invite your Lordship to consider granting permission to appeal.
40. MR JUSTICE PLENDER: On that point I do not give you permission. As I fear I may have shown at the outset, I have not found this to be one of the borderline cases which could easily go either way.
41. MISS RICHARDS: I rather expected that to be your Lordship's answer but I wanted to ask.
42. MR JUSTICE PLENDER: If you want permission to appeal it should be made to the Court of Appeal.
43. MR HENDY: My Lord, could I make one observation. Mr Brown pointed out to me at lunchtime, there is a point in our relief that has not arisen in the course of arguments. If your Lordship goes to page 13 of the bundle, at (vi).
44. MR JUSTICE PLENDER: Yes.
45. MR HENDY: We were seeking a declaration that there is a breach of paragraph 5 of the introduction of the Civil Service Management Code in failing to make clear how discretion would be exercised. If your Lordship goes to page 134, your Lordship sees paragraph 5 -- in fact your Lordship touched on it in the judgment -- but it is the last sentence:

"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.

46. MR JUSTICE PLENDER: I am grateful for you saying you will not take it further. It is a matter on which I think I would want to hear submissions on both sides. It may be that the amity which appears to be breaking out between the parties at the end of this litigation will provide a suitable atmosphere for resolving it.
47. MR HENDY: Absolutely, my Lord.
48. MR JUSTICE PLENDER: Thank you both very much for your assistance.