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
		30 July 2009

1. LORD JUSTICE LAWS: This is an application for judicial review of a decision by the Coroner for Inner North London made on 12 May 2008 not to permit representatives of the Independent Police Complaints Commission ("the IPCC"), which is the claimant in the case, to attend a post-mortem into the death of a Mr Ayodeji Awogboro, the deceased.
2. The case is somewhat unusual. We are asked in effect to give guidance as to the way in which a coroner should exercise his discretion under paragraph 7(4) of the Coroners Rules 1984 to permit the IPCC to attend a post-mortem which the coroner has directed.
3. At 12.30 pm on 11 May 2008 the deceased was arrested in Islington by two police officers who had seen him commit a road traffic offence, driving through a red light. He attempted to drive off but was eventually pulled over. He ran into a playground and was pursued by the officers and struck on the legs with a baton. He was pulled to the ground and sprayed with CS gas. He was taken to the police station where he collapsed. He was taken to hospital in a coma. He was noted to have very high, potentially lethal, levels of potassium in his blood. Medical staff indicated, however, that this was not connected to CS gas. He died at 2323 on the same day.
4. The death was notified to Mr Knight, the Regional Director of the IPCC, at 0045 on Monday 12 May 2008. Mr Knight was told that a post-mortem was being organised for later that day.
5. A little later in the morning Detective Chief Inspector Laverick informed Mr Cousins, the senior investigator with the IPCC, that the post-mortem would take place at 1400 but that the coroner, the defendant in the proceedings, would not allow the IPCC to attend without written representations. At 1011 Mr Cousins duly faxed written representations.
6. I should say that DCI Laverick is a senior investigating officer with the Directorate of Professional Standards of the Metropolitan Police.
7. Mr Cousins's fax stated in part:

"A 'special PM' is being held in respect of this man at 2 pm today.

At this time the IPCC is carrying out an assessment in respect of this matter to decide if we will carry out an 'Independent' investigation under the terms of the Police Reform Act 2002.

I would therefore ask for permission to attend the PM."

The coroner refused permission.

8. Thereafter the IPCC decided to undertake an independent investigation. This is a term of art which I will shortly explain.
9. The coroner's officer was so informed and the request to attend the post-mortem was repeated. At the coroner's request that was put in writing and it was intimated that unless the request to attend was granted the IPCC would apply to the court. The IPCC say that the request to attend was thereafter again refused. The coroner said that there was no time to reply to it.
10. So it was that at about 1400 on 12 May 2008 the claimant IPCC applied to Collins J, after giving notice at 13.41, for an order to permit their representatives to attend the post-mortem and to prevent the post-mortem taking place until such reasonable time as the representatives could be there. Collins J made the order sought upon the claimant's undertaking to issue an application for judicial review if so requested by the coroner. The coroner complied with the order and representatives of the IPCC attended the post-mortem.
11. I should add that the IPCC having completed an independent investigation concluded that no criminal offence or misconduct was disclosed in the circumstances surrounding the death. However the precise cause of death it seems remains undetermined.
12. The post-mortem and the IPCC investigation having both been completed these proceedings are, in a sense, academic. However the coroner requested the IPCC to issue judicial review proceedings on 1 July 2008 pursuant to the indication by Collins J that such proceedings should be issued were such a request put forward. The IPCC duly issued judicial review proceedings pursuant to their undertaking given to Collins J and on 11 December 2008 His Honour Judge Pearl, sitting as a deputy High Court judge, granted judicial review permission. Access by the IPCC to a post-mortem ordered by a coroner, or the denial of such access, is clearly a matter of some importance and it is right that we should turn to the merits of the judicial review.
13. The IPCC's functions and duties are given by section 10 of the Police Reform Act 2002 and may be summarised as follows:

"(1) By force of section 10(1)(a), read with section 10(2)(a)-(c), to secure the maintenance by the IPCC, by police authorities and by chief officers of police of suitable arrangements for:

(i) the handling of complaints made about the conduct of person serving with the police;

(ii) the recording of matters from which it appears that there may have been conduct by such persons which constitutes or involves the commission of a criminal offence of behaviour justifying disciplinary proceedings;

(iii) the recording of matters from which it appears that a person has died or suffered serious injury during, or following, contact with a person serving with the police; and

(iv) the manner in which any such complaints or any such matters as are mentioned in paragraph (ii) or (iii) above are investigated or otherwise handled and dealt with.

(2) By force of section 10(1)(c), to secure that the arrangements maintained with respect of the matters mentioned in paragraph (1) above are, inter alia, efficient and effective and contain and manifest an appropriate degree of independence.

(3) By force of section 10(1)(d), to secure that public confidence is established and maintained in the existence of suitable arrangements with respect to those matters mentioned in paragraph (1) above and with the operation of the arrangements that are in fact maintained with respect to those matters."

14. To understand the relevant functions of the IPCC it is also necessary to set out the statutory definitions of "DSI matters" in section 30 of the 2002 Act:

"(2A) In this Part 'death or serious injury matter' (or 'DSI matter' for short) means any circumstances (other than those which are or have been the subject of a complaint or which amount to a conduct matter) --

(a) in or in consequence of which a person has died or has sustained serious injury; and

(b) in relation to which the requirements of either subsection (2B) or subsection (2C) are satisfied.

(2B) The requirements of this subsection are that at the time of the death or serious injury the person --

(a) had been arrested by a person serving with the police and had not been released from that arrest; or

(b) was otherwise detained in the custody of a person serving with the police.

(2C) The requirements of this subsection are that --

(a) at or before the time of the death of serious injury the person had contact (of whatever kind, and whether direct or indirect) with a person serving with the police who was acting in the execution of his duties; and

(b) there is an indication that the contact may have caused (whether directly or indirectly) or contributed to the death or serious injury.

(2D) In subsection (2A) the reference to a person includes a person serving with the police, but in relation to such a person 'contact' in subsection (2C) does not include contact that he has whilst acting in the execution of his duties."

15. All DSI matters are required to be referred to the IPCC, see schedule 3 Part 2A paragraph 14C of the Police Reform Act 2002 as amended by the Serious Organised Crime and Police Act 2005. If the IPCC determine that an ESI matter must be investigated, they must also determine the form of the investigation. One such mode is an independent investigation by the IPCC itself (Schedule 3 paragraph 15(4)(b)). That was what was undertaken in this case. An independent investigation is carried out by the IPCC through a member of its own staff who will be in charge of the investigation.
16. Another form of investigation is a managed investigation under Schedule 3 paragraph 15(4)(c). That is conducted by a person serving with the police appointed for the purpose. It is here that the focus of IPCC investigations, as is submitted by Mr Hough for the coroner in his skeleton, will always be on police conduct: see R (Reynolds) v IPCC [2008] EWCA Civ 1160, which, with respect, I need not cite.
17. The conduct of post-mortems is governed by the Coroners Rules 1984. Paragraph 7(2) identifies the persons and bodies who are to be notified by the coroner of the post-mortem's date, hour and place, and all such persons are entitled to attend post-mortems but they must be represented by a legally qualified medical practitioner: see paragraph 7(3). This list of persons does not include the IPCC.
18. Paragraph 7(4) of the Rules reads as follows:

"Nothing in the foregoing provisions of this Rule shall be deemed to limit the discretion of the coroner to notify any person of the date, hour and place at which a post-mortem examination will be made and to permit him to attend the examination."

19. This, of course, is the provision under which the IPCC sought permission to attend the post-mortem into Mr Awogboro's death. I should also note that paragraph 20(2) of the Rules lists the persons who are by paragraph 20(1) entitled to examine any witness at an inquest. This list does not include the IPCC.
20. Given the rapid turn of events on 12 May 2008 there is no decision letter setting out the coroner's reasons for refusing permission to the claimant to attend the post-mortem. I mean no criticism. No doubt the coroner responded to the claimant's requests, inevitably made very shortly before the post-mortem was due to be held, as best he could; but it means that the issues in the case have to be recovered in a somewhat piecemeal fashion from the claim form, the acknowledgment of service and, in particular, the parties' skeleton argument and the oral submissions advanced before us by Mr Beer and Mr Hough this morning.
21. However, short reasons for refusal were given by telephone in response to the initial request to attend the post-mortem made at 1011 on 12 May. This is how it is put in the acknowledgment of service:

"At this stage, and given his other responsibilities, the Defendant coroner only had time to indicate that on the material so far available the Claimant was not automatically an interested person for the person for the purposes of rule 20 of the Coroners Rules 1984, and was not automatically entitled to attend or be represented at the autopsy. It was not necessary for the Claimant's investigator to attend the autopsy. His presence would add nothing to the investigation. The Defendant coroner's officer passed this on to the Claimant's senior investigator by telephone."

22. Mr Beer for the IPCC criticises this response on a number of grounds. First, the reference to rule 20 is really nothing to the point. The fact that the IPCC is not entitled by force of the rule to examine witnesses at the inquest says nothing as to whether the discretion inferred by paragraph 7(4) should be exercised in its favour in any given case. It is to be noted that certain persons or bodies are entitled to be represented at a post-mortem under rule 7(2) and (3) who are not, however, entitled to examine witnesses under rule 20.
23. Secondly, the fact that the IPCC is not entitled by rule 7(2) and (3) to be represented at the post-mortem is not a reason for refusing to exercise a rule 7(4) discretion in the IPCC's favour.
24. Thirdly, in stating that the IPCC's presence "would add nothing to the investigation" suggests, though it does not necessarily apply, that the Crowner took the view that a person should only be admitted under paragraph 7(4) if their presence would assist the conduct of his investigation. That restricts the discretion more tightly than is justified by the statutory words. In any event the IPCC does assist coroners' inquests. It may provide important information to the pathologist conducting the post-mortem and may provide evidence in various forms to the coroner at the inquest itself.
25. In general I think these particular points are well founded. The coroner did not on 12 May 2008, and no doubt given the pressure of events was in no position to, give mature consideration to the breadth or purpose of his discretion under paragraph 7(4). Again, I do not think he is to be criticised. The real question in the case is a broad one: what position should a coroner generally take under rule 7(4) in response to a request by the IPCC to attend a post-mortem?
26. The IPCC notes that in a memorandum of understanding between themselves and the Coroners Society of England and Wales it is stated (paragraph 17) that:

"The coroner will normally give the IPCC permission to be represented at the post-mortem."

27. Of course, such a memorandum of understanding is not a source of law or an aid to the construction of rule 7(4), but it is background information which it is useful to have in mind.
28. The IPCC also invoked the jurisprudence relating to the investigative obligation arising under article 2 of the European Convention on Human Rights, which, of course, guarantees the right to life. The investigative obligation arises, putting the matter shortly, where a person dies in the custody or control of the state. It is said that a succession of cases demonstrates that a combination of procedures may suffice to satisfy the obligation. A single unified process is not necessarily required: see, for example, Allen [2009] EWCA Civ 623, paragraphs 14 to 18, Lim [2008] EWHC Admin 2575 paragraph 28 per Moses LJ.
29. In Middleton [2004] 2 AC 182 Lord Bingham said this at paragraph 20:

"The European Court has repeatedly recognised that there are many different ways in which a state may discharge its procedural obligation to investigate under article 2. In England and Wales an inquest is the means by which the state ordinarily discharges that obligation, save where a criminal prosecution intervenes or a public inquiry is ordered into a major accident, usually involving multiple fatalities."

30. In the light of this learning it seems to me inescapable that the function of the IPCC forms part of the article 2 process at least where it is conducting an independent investigation into a death where the police may be implicated. Its investigative function is a statutory one and provides a particular means of enquiry where a death has occurred in police hands. It is manifestly a public function conferred in the public interest. In those circumstances, where the IPCC is conducting a managed or independent enquiry into a death where there may be some police responsibility and the coroner has also taken jurisdiction to deal with the case, the coroner and the IPCC are effectively partners in the investigative process. While the IPCC's primary focus will be on the police, they may generally assist the coroner, as I have said, by providing information at the post-mortem and evidence at the inquest. Ordinarily then in a case of such a managed or independent investigation by the IPCC the coroner should, in my view, accede to a request by the IPCC to attend the post-mortem. I would not indicate that the IPCC should necessarily attend the post-mortem by a medical practitioner. They will use their good sense.
31. I consider that the IPCC should indicate to the coroner, however briefly, the reasons why, in particular, it is thought their attendance at the post-mortem might be useful. I recognise that there are good generic reasons, applying certainly in most cases, why the IPCC should be there. Mr Beer listed these. They include, for example, the proposition that the pathologist may desire assistance which only the IPCC representative may be in a position to give in the course of the post-mortem itself. Further, the IPCC should be able, says Mr Beer, to witness the first-hand conduct of the post-mortem so as to ensure continuity of exhibits and matters of that kind.
32. However the strength of these considerations will vary case by case and I envisage only that the IPCC should give short reasons, sometimes no more than a sentence would not doubt do. I do not consider that this will so lengthen or complicate the process that the promptitude of the post-mortem as required by statute will be put at risk. I would not lay down a requirement that the IPCC should in every case consult family members. No doubt members of the family of the deceased will generally be consulted as a matter of good practice and ordinary humanity whether by the coroner or the IPCC.
33. In a case where the IPCC is still deciding which mode of investigation to undertake I would especially expect them to notify the coroner of their reasons for desiring to be present at the post-mortem. As Mr Beer submitted, there are some cases where the relation between the cause of death and the conduct of the police may effectively determine the mode of investigation. In a case of that sort it may well be there is every good reason why the IPCC should attend the inquest. But it seems to me they should say so, again however briefly, and on good reason being shown no doubt the coroner would admit the IPCC to the post-mortem.
34. All that said, I fully recognise, of course, that rule 7(4) confers a discretion and not a duty. There may be cases, I would expect them to be very rare, when the coroner will rightly refuse an IPCC request.
35. The coroner in this case submits that the discretion is a broad one with no particular bias in favour of accepting an IPCC request. He submits, paragraph 27(ii) of counsel's skeleton, that four particular considerations should be borne in mind by coroners faced with such a request. (1) The form of investigation which is being performed by the IPCC. (2) Whether the presence of the IPCC at the post-mortem is likely to achieve any practical benefit. (3) The legitimate interests of the family of the deceased, including any wishes expressed by them. (4) Practical considerations, for example, the number of persons likely to be in the post-mortem room and the views of the authorities.
36. Of these the first is legitimate. The second I would have thought not a true fact. The IPCC are to be assumed to be acting responsibly. They are unlikely to seek attendance at the post-mortem without some good reason. The third relating to family members might be a powerful consideration in certain cases. It would, with great respect, generally be more powerful if the question were whether a post-mortem should be held at all. But respect Mr Hough's submission that cases arises where family members may have deep concerns about the number of persons present at a post-mortem or in one instance to which he referred, an instance of a Muslim family, concerns were expressed as to the sex of the persons who were in attendance. Those matters, of course, may rightly be taken into account. The fourth of Mr Hough's points is, I would have thought, unlikely to offer real difficulty but, if it did, the coroner might wish to consider what arrangements could be made to overcome it.
37. The coroner also submits, paragraph 27(iii) of the skeleton, that there should be a general rule that an investigating agency should be represented by a medical practitioner. I have already said that I would not within the scope of a judgment seeking really to give guidance about the exercise of discretion under paragraph 7(4) seek to lay down any rule, though in the great majority of cases it may very well be best practice for a medical practitioner to represent the IPCC.
38. The approach I have suggested, that ordinarily the coroner should accede to a request by the IPCC to attend the post-mortem, is promoted both by the article 2 juris prudence showing that the investigative obligation may be achieved by a combination of procedures and also by domestic public law principles rule of reason (see Wednesbury [1948] 1 KB 223), and the rule that discretionary power is to be exercised for the purpose for which the power was conferred (see Padfield [1968] AC 997). Both require a coroner, generally at least, to look favourably on a request by the IPCC to attend a post-mortem; the latter because the purpose of paragraph 7(4) must include the coroner's co-operation with other state statutory agencies properly concerned to enquire into the relevant death.
39. None of this is contradicted by the stipulation in rule 7(2) of persons entitled to attend the post-mortem. Rule 7(2) includes persons who ought to be allowed to attend, such as the deceased's relatives, whether or not they may have anything to contribute to the enquiry. It certainly includes persons whose presence is to further their own, of course, legitimate interest.
40. In all of these circumstances I do not consider that any relief is necessary. This judgment, if my Lord agrees with it, declares the legal position.
41. MR JUSTICE TUGENDHAT: I do agree.
42. MR BEER: My Lord, I know you are anxious to go. I think there is one error that ought to be mentioned. Quickly it is this. It is my fault, because I said and you have adopted it. The coroner is in fact a member of the Coroners Society of England and Wales. He was not, however, a member of the working group which prepared the draft memorandum of understanding and was not a member of the Council which approved it.
43. LORD JUSTICE LAWS: Then can the shorthand writer delete the sentence in my judgment when I think I said "As it happens the coroner is not a member of the Coroners Society of England and Wales". The rest can stand.
44. MR BEER: I am sorry for the error that I caused.
45. LORD JUSTICE LAWS: No, no. Any other consequential matters?
46. MR BEER: There are no applications.