England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		3rd December 2008

1. MR JUSTICE SILBER: The claimant is the mother of J C D, who was shot and killed by Metropolitan Police Fire Arms Officers at Stockwell Underground Station on 22nd July 2005. An inquest into his death started its substantive hearings on 22nd September 2008 with Sir Michael Wright, who was appointed as the Assistant Deputy Coroner for Inner South London and who I will hereinafter refer to as "the Coroner". After the evidence was completed and after hearing extensive submissions, the Coroner decided that: (i) no potential verdict of unlawful killing would be left to the jury; (ii) the only "short form" verdicts which would be left to the jury would be lawful killing and open verdict; and (iii) the jury would otherwise only be permitted to answer certainly narrowly confined narrative verdict questions and not all the questions sought by the claimant's counsel.
2. The claimant is seeking to challenge all these decisions but on the present application, Mr Michael Mansfield QC, counsel for the claimant, is only challenging the decision of the Coroner to restrict the questions which the jury will be required to answer. He is not pursuing his other claims (namely (i) and (ii)) relating to the verdicts which the jury can return because before the hearing in front of me started, the Coroner had already started summing up to the jury and he had by then already indicated the only verdicts which were to be left to them. Thus I will not say anything more about them and this judgment only deals with the refusal of the Coroner to put to the jury certain questions sought by the claimant.
3. On this application, Mr Mansfield contends that the Coroner erred in his approach to the narrative verdict, principally because the format which he adopted meant that the members of the jury were unduly limited in their ability to return their conclusions as to how Mr D died. He has proposed that certain additional questions should be put to the jury, but the Coroner refused to put them to the jury. It is that decision which is now being challenged. The claimant now seeks permission to pursue this claim and if successful, it is envisaged that the Coroner will put them to the jury at the end of his summing-up, which is now underway.
4. The Coroner gave his ruling on 24th November 2008 on whether he would put to the jury certain questions which the claimant's representatives wished to have asked. The Coroner was subsequently asked by Mr Mansfield to hear further submissions on the extent of the narrative verdict. Further written submissions were lodged and further oral argument took place on 1st December 2008. By an email sent later that day, the Coroner circulated an amended narrative questionnaire which still, in Mr Mansfield's submission, unduly limits the members of the jury in their ability to return conclusions on how Mr D died. The Coroner has not given his full reasons for the decision made on 1st December 2008, but it is clear from his earlier rulings how he approached this matter.
5. The starting point for considering the submissions in this case is the approach of the European Court of Human Rights to the interpretation of Article 2 of the European Convention on Human Rights, by which it imposes on member states a procedural obligation to initiate an effective public investigation by an independent official body into any death occurring in circumstances in which it appears that, among other things, agents of the states are, or may be, in some way implicated. It is common ground that as Mr D was shot by police officers, Article 2 of the Convention requires a properly conducted official investigation. In this case, the way in which the obligation has been sought to be satisfied by the United Kingdom is by holding the present inquest.
6. At the heart of the dispute between the parties is the question of whether the present inquest, together with the questions which the Coroner will require the jury to answer, would satisfy the Article 2 rights of the claimant and her family. A document entitled "Verdict Questionnaire" has been, or is about to be, given to the jury. At the top of it are "short-form verdicts" which state "Enter 'lawful killing' or 'open verdict' in the box to the right". The questionnaire then sets out a series of questions which had next to them the boxes with the words "Yes", "No" and "Cannot decide".
7. The questions which the coroner agreed should be put before the jury were:

"4. Do you consider that any of the following factors caused or were more than a minimal causal contribution to the death of Mr D?

(a) The suicide attacks and attempted attacks of July 2005 and the pressure placed upon the Metropolitan Police in responding to the threat.

(b) A failure, to obtain and provide better photographic images of the suspect, Hussain Osman, for the surveillance team.

(c) A failure by the police to ensure that Mr D was stopped before he reached public transport.

(d) The general difficulty in providing an identification of the man under surveillance (Mr D) in the time available and in the circumstances after he had left the block at Scotia Road.

(e) The innocent behaviour of Mr D which increased the suspicions of some officers.

(f) The fact that the views of the surveillance officers regarding identification were not accurately communicated to the command team and the firearms officers.

(g) The fact that the position of the cars containing the firearms officers was not accurately known to the command team as the firearms officers were approaching Stockwell Station.

(h) Any significant shortcomings in the communications system as it was operating on the day between the various police teams on the ground and with New Scotland Yard.

(i) A failure to conclude, at the time, that surveillance officers should still be used to carry out the stop of Mr D at Stockwell Station even after it was reported that Specialist Firearms Officers could perform the stop."

8. Mr Mansfield contends that these questions do not go far enough and that the coroner should have permitted the following further questions to be put to the jury:

"5. Have you identified any other factor which you consider made more than the minimal causal contribution to the death of Mr D? If so, what are they?

6. Insofar as you have concluded that certain matters were causative of Mr D death, are there any additional comments you wish to make, for example, to clarify your conclusions with regard to a particular factor, or express a view as to the gravity of any failings you have found, or the level of contribution of any particular factor? If so, please make the comments here.

7. In answering all the questions above please bear in mind that you:

(a) May, if applicable, describe the act or omission as 'inappropriate', 'inadequate', 'unsuitable', 'insufficient', 'lacking' or 'failure';

(b) Are not permitted to use words that imply a civil or criminal judgement such as 'carelessly', 'negligently', 'recklessly', 'guilt', 'tortious', 'breach of duty' or 'breach of a duty of care'."

9. Mr Mansfield makes three main submissions in his oral and in his written submissions. First, he contends that the Coroner was obliged to ensure that the members of the jury were permitted to resolve the disputed factual issues at the heart of the case and were able properly to determine by what means and in what circumstances Mr D came to his death. It is then contended by Mr Mansfield that the question of how Mr D came to his death went far beyond ascertaining whether this was "lawful killing" or "open verdict", which were the only two verdicts that the Coroner was prepared to leave to the jury.
10. It was pointed out that the jury had heard a substantial amount of evidence about the planning and implementation of the fire arms operation in which Mr D died. This evidence, according to Mr Mansfield, raised a large number of issues which were potentially causative of his death in the sense that they caused or contributed to the chain of events which led to him being shot. Thus, it is said by Mr Mansfield that the narrative verdict direction not merely had to give proper guidance to the members of the jury as to how to approach the evidence, but also not to fetter their ability to resolve their own verdict as to how he died. On the claimant's case, this entailed looking beyond the narrow issues which were covered by the only questions which the coroner was prepared to leave to the jury.
11. Mr Mansfield's complaint is that the jury were specifically precluded, first, from making any additional comments to explain their reasoning with respect to the causative factors which were listed; second, from clarifying their conclusions with regard to any particular factor; third, from expressing their view as to the gravity of any particular factor; and fourth, from reaching their own conclusions as to whether there were any additional factors which caused or contributed to Mr D death.
12. In consequence, it is contended that the Coroner first fettered the jury's abilities to comply with its duties under Section 11(5)(b)(ii) of the Coroners Act 1988, which requires a jury to give its verdict "how, when and where the deceased came by his death", and that this required a jury to state its conclusions on the important underlying issues.
13. Mr Mansfield's second submission is that the Coroner's approach precluded the jury from commenting on whether they regarded any particular failings by the police as serious and, if so, how serious. He contends that the essence of an effective Article 2 investigative obligation satisfied by an inquest is to ensure that there is accountability of state agents for deaths under their responsibility, and this involves the jury reaching judgemental conclusions of a factual nature. Mr Mansfield's third contention is that the Coroner's approach meant that the jury's findings were at best likely to beg more questions and at worst would be confusing or meaningless.
14. The opposition to this the application for permission comes not only from counsel for the Coroner, but also from counsel for the Commissioner for the Metropolitan Police and for all the police officers involved. Their basic submission is that the present questions to the jury satisfy the Article 2 obligation imposed on the United Kingdom. They rely heavily on the statements of the Appellate Committee of the House of Lords in R (Middleton) v West Somerset Coroner and Another [2004] 2 AC 182 in which Lord Bingham of Cornhill, expressing the opinion of the Committee, stated that:

"20 . . . to meet the procedural requirements of Article 2 an inquest ought ordinarily to culminate in an expression, however brief, of the jury's conclusions on the disputed factual issues at the heart of the case."

Lord Bingham expanded on this later when he stated that:

"31. In some other cases, short verdicts in the traditional form will enable the jury to express their conclusion on the central issue canvassed at the inquest. McCann has already been given as an example: see paragraph 14 above. The same would be true if the central issue at the inquest were whether the deceased had taken his own life or been killed by another: by choosing between verdicts of suicide and unlawful killing, the jury would make clear its factual conclusion. But it is plain that in other cases a strict Ex p Jamieson approach will not meet what has been identified above as the Convention requirement. In Keenan the inquest verdict of death by misadventure and the certification of asphyxiation by hanging as the cause of death did not express the jury's conclusion on the events leading up to the death. Similarly, verdicts of unlawful killing in Edwards and Amin, although plainly justified, would not have enabled the jury to express any conclusion on what would undoubtedly have been the major issue at any inquest, the procedures which led in each case to the deceased and his killer sharing a cell."

15. Lord Bingham then considered how to interpret the words in section 11(5)(b) of the Coroners Act 1988 which, as I have explained, require the jury to state "how, when and where the deceased came by his death". The other provision he considered was Rule 36(1) of the Coroners Rule 1984 which provides that:

"(1) The proceedings in an inquest should 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 . . . "

Lord Bingham explains that it was necessary to interpret the word "how" in each of those provisions in a broader sense than previously considered "namely as meaning not simply "by what means" but "by what means and in what circumstances" (paragraph 35).

16. Lord Bingham then proceeded to explain the wide discretion given to a coroner to determine how best in any particular case to obtain the conclusions of the jury on the central issues including those of determining in respect of the death "by what means and in what circumstances". He stated that:

"37. This will not require a change of approach in some cases, where a traditional short form verdict will 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 elicit 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 jury's answer to factual questions put by the coroner. If the coroner invites either a narrative verdict or answers to questions, he may find it helpful to direct the jury with reference to some of the matters to which a sheriff will have regard in making his determination under section 6 of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976: where and when the death took place; the cause or causes of such death; the defects in the system which contributed to the death; and any other factors which are relevant to the circumstances of the death. 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."

17. Lord Bingham then commented on Rule 42 of the Coroners Rules 1984 which provides that:

"No verdict shall be framed in such a way as to appear to determine any question of --

(a) criminal liability on the part of a named person, or

(b) civil liability."

He said in respect of this rule and of Rule 36(2) and section 11(5)(b)(ii) of the Coroners Act 1988 to which I have already referred:

"37. The prohibition in Rule 36(2) of the expression of opinion on matters not comprised within sub-rule (1) must continue to be respected. But it must be read with reference to the broader interpretation of "how" in section 11(5)(b)(ii) and Rule 36(1) and does not preclude conclusions of fact as opposed to expressions of opinion. However the jury's factual conclusion is conveyed, Rule 42 should not be infringed. Thus there must be no finding of criminal liability on the part of a named person. Nor must the verdict appear to determine any question of civil liability. Acts or omissions may be recorded, but expressions suggestive of civil liability, in particular 'neglect' or 'carelessness' and related expressions, should be avoided. Self-neglect and neglect should continue to be treated as terms of art. A verdict such as that suggested in paragraph 45 below ('The deceased took his own life, in part because the risk of his doing so was not recognised and appropriate precautions were not taken to prevent him doing so') embodies a judgmental conclusion of a factual nature, directly relating to the circumstances of the death. It does not identify any individual nor does it address any issue of criminal or civil liability. It does not therefore infringe either Rule 36(2) or Rule 42."

18. It is appropriate at this stage to deal with a submission made by Mr Mansfield that a jury should be asked more information on the basis on what was subsequently said by Lord Brown of Eaton under Heywood in Hurst v London Northern District Coroner [2007] 2 AC 189 when he said of Baroness Hale and Lord Mance, both of whom dissented, that:

"34 . . . Given, however, as both Lady Hale and Lord Mance in terms accept, that, upon the conclusion of such an inquest, the jury would be debarred from expressing any views whatever upon the conduct which they had been examining (the whole point of a Middleton inquest being, as I have explained above, to enable the jury to state their conclusions on the important underlying issues such as what risks should have been recognised and what precautions taken) the value of such an inquest may be doubted. It might, indeed, be thought the worst of all worlds. Lady Hale and Lord Mance expressly acknowledge that it would not satisfy the UK's international obligations under Article 2 of the Convention. Nor would it satisfy the respondent's understandable desire for detailed findings to be made upon the circumstances leading to her son's death. At best it could occasion a report from the Coroner to a responsible authority under Rule 43 (see para 74 of Lord Mance's opinion). Small wonder that such an inquest was not one for which Mr Starmer has ever contended."

19. In my view, this statement does not in any way alter the significance of what had been said in Middleton. Hurst was dealing with different matters than those which had been considered in Middleton as it was focussing on whether the Article 2 obligation had to be satisfied in deaths occurring before 2nd October 2000 which was when the Human Rights Act 1998 came into force. Furthermore, Lord Brown was, in the passage which I have quoted, affirming the approach in Middleton. In my view, nothing has been said in Hurst which in any way undermines the correctness of the approach in Middleton to which I have referred.
20. I have come to the conclusion that six factors have individually and cumulatively lead me to the conclusion that permission should be refused. I will set them out in no particular order of importance.
21. First, the existing verdicts and the existing questions satisfy the obligation in Section 11(5)(b)(ii) of the Act and Rule 36(1)(b) by enabling the jury to ascertain "by what means and in what circumstances" Mr D came by his death. The answers to the existing questions, together with the verdicts sought by the Coroner, provide that information. It is noteworthy that in Bubbins v United Kingdom [2005] ECHR 159, the European Court of Human Rights considered that Article 2 obligations had been satisfied in a case in which the police had shot Michael Fitzgerald and the Coroner's directions of law included the following at paragraph 94:

"I find, as a matter of law, for reasons which I do not need to explain to you, that the only verdict that you can come to in this inquest - and I so direct - is a verdict that Michael James Fitzgerald was lawfully killed."

In that case the Coroner went on to explain that any explanation of the verdict was a matter for the jury to decide. The jury returned a verdict of unlawful killing and added a recommendation about banning replica firearms.

22. The inquiry required by the Coroner of the jury in the Bubbins case was significantly less demanding than that which is taking place in the present case, in the light of the questions which the Coroner has agreed to put. In other words, the verdicts of the jury in the present case will provide much more information than was sought from and given by the jury in the Bubbins case.
23. In McCann v United Kingdom [1995] 21 EHRR 97, there had been a fatal shooting by soldiers of three people, and it was clear from the outset when and where the deceased had died and that they had been shot by soldiers. The central issue was whether the soldiers had been justified in shooting and killing the deceased. The European Court of Human Rights considered that the Article 2 obligations had been satisfied when the Coroner directed the jury on the law and left to them three verdicts of unlawful killing, lawful killing or an open verdict. Those verdicts enabled the jury to indicate, if they were able to do so, whether the soldiers were justified in shooting and killing the deceased or second their inability to come to any conclusion by returning open verdicts. No questions were asked of the jury and this did not cause any concern to the Strasbourg Court, which was satisfied that the deceased's Article 2 rights had not been infringed.
24. The second reason why permission has to be refused is that no case decided in this country or in Strasbourg has been cited to me in which it was held that specific questions, whether of the kind sought by the claimants in this case or of any kind, were required to be asked of a jury over and above asking them, in accordance with Lord Bingham's statement, "by what means and in what circumstances" the deceased died.
25. Third, the Coroner is given a discretion "to decide how best in the particular case to elicit the jury's conclusion on the central issue or issues", as was stated in paragraph 36 in Middleton. As the Coroner has a discretion, the only grounds for interfering would probably be on Wednesbury principles but I cannot see how an approach adopted by the Coroner in this case could be Wednesbury unreasonable, especially as in the similar cases of deaths of individuals at the hands of state officials in the cases of Bubbins and McCann, the verdicts of coroners were not impugned because they did not ask any further questions.
26. Fourth, there is a substantial risk that if the inquest jury were required to answer the questions proposed by Mr Mansfield the jury might well then be acting in contravention of Rule 36(2) by expressing opinion on other matters than those to which they are entitled to comment, and in particular by acting in breach of Rule 42 of the Coroners Rules 1984 by appearing to determine questions of criminal or civil liability.
27. The fifth reason why I must refuse permission is that there is a risk of contradictory and conflicting findings if the questions which Mr Mansfield wishes to have put are left to the jury. They seek, using the words of question 6, to "clarify your conclusions" and, notwithstanding this wording, there is a worrying possibility that, by revisiting their earlier conclusions, the jury might inadvertently undermine them.
28. The final reason why permission has to be refused is, as I have explained, that Lord Bingham said on the question of eliciting the jury's factual conclusions "the choice must be that of the Coroner and his decision should not be disturbed by the courts unless strong grounds are shown". In this case the claimant has failed, even arguably, to satisfy this burden. For all those reasons, not withstanding Mr Mansfield's submissions, this application has to be refused.
29. MR STRAW: My Lord, just a few matters. First of all, may I, on behalf of the bar, thank your Lordship for stepping into the breach at the last minute and producing a judgment at short notice. Secondly, may I ask that the transcript be expedited, for obvious reasons. Thirdly, just before I turn to my instructing solicitor, that there obviously is the remainder of the judicial review claim. Perhaps that could be stayed generally.
30. MR JUSTICE SILBER: I think the thing to do is adjourn it generally.
31. MR STRAW: Yes. My instructing solicitor also reminds me that your clerk, because of the record outside of court, read out the incorrect name of the matter on which your Lordship was giving judgment. Just to assist.
32. MR JUSTICE SILBER: Thank you very much.
33. MR STRAW: I ask for the usual order of detailed assessment of the claimant's publicly funded costs.
34. MR JUSTICE SILBER: If there is a certificate, most certainly.