Neutral Citation No. [2010] EWHC 2580 (Admin)
Case No: CO/6673/2008
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH  DIVISION
ADMINISTRATIVE COURT

Birmingham Civil Justice Centre
Priory Courts
33 Bull Street
BIRMINGHAM B4 6DS

Date: 15th October 2010  

Before :

HIS HONOUR JUDGE PURLE QC
(sitting as a High Court Judge)
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Between:

	THE QUEEN
(on the application of Ms Rossana Hair)	
      Claimant 
	
	- and -	
	
	HER MAJESTY’S CORONER FOR STAFFORDSHIRE (SOUTH)

-and-

(1) DR LOGAN
(2) SOUTH STAFFORDSHIRE PCT
(3) SECRETARY OF STATE FOR JUSTICE	       Defendant

     

       Interested
          Parties       	

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Alison Gerry (instructed by Irwin Mitchell) appeared for the Claimant
The Defendant took no active part in the application and was not represented
Christopher Kemp (instructed by Radcliffes le Brasseur) appeared for the First Interested Party
The Second Interested Party did not appear and was not represented
Louis Browne (instructed by the Treasury Solicitor) appeared for the Third Interested Party

Hearing Dates: 29th and 30th March 2010
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JUDGMENT

Judge Purle QC:

1.	Rossana Hair (“Ms. Hair”) was the mother of David Harrison, also known as David Hair (“Mr. Hair”).

2.	Mr. Hair died on 15th December 2006 after he was found in a prison cell at HMP Stafford unconscious with a ligature around his neck.  He was then serving a sentence of imprisonment.

3.	This judicial review application concerns the adequacy of the inquest into Mr. Hair’s death.  Ms. Hair seeks the quashing of the inquisition and a new inquest.  She complains that the inquest was conducted in breach of this country’s obligations under Article 2 of the European Convention of Human Rights 1950 (“ECHR”) to carry out a proper investigation into the circumstances of her son’s death, an obligation which is recognised as being particularly important in the case of a person dying while in state custody.  The primary ground of challenge relates to the adequacy of the summing-up.  It is also said that Rule 40 of the Coroner’s Rules 1984, which prevents any person addressing the Coroner or Jury on the facts, prevented the jury reaching a proper conclusion on central issues of fact and so is incompatible with Article 2.  As the argument developed, another point emerged, namely whether the inquest was defective because of the failure on the part of the coroner to call all relevant witnesses.  This is in a sense related to the summing-up complaints, because the alleged inadequacies include failing to draw specifically to the Jury’s attention material documents which, properly examined, revealed that there were 3 other relevant witnesses who were not called.  To that extent, the investigation may be said to have been less than full and, therefore, defective.

4.	Mr. Hair was, as I have said, serving a sentence of imprisonment at the time of his death.  He had been transferred to HMP Stafford from HMP Liverpool in August 2006.  There is a suggestion that he had been bullied at HMP Liverpool.  At Stafford, he was at his request initially on normal location, and not treated as a vulnerable prisoner.

5.	At the end of August 2006, Mr. Hair tested positive for opiates and was, following an adjudication, given a punishment of 14 days cellular confinement in the Segregation Unit, with loss of privileges.

6.	He refused to move from the Segregation Unit at the beginning of October 2006 and was charged with refusing a lawful order.  For this he received an additional 7 days cellular confinement.  He again refused to move and was charged once more with refusing a lawful order.  The charge was technically defective and not proceeded with.

7.	On 2nd November 2006, Mr. Hair was charged with fighting with another prisoner.  He received a punishment of 7 days cellular confinement.

8.	At the end of that 7 days, he was ordered to (but refused) to return to normal location, and was charged again.  The order and refusal were repeated on 24th November 2006, resulting in a yet further charge.

9.	A note in the Segregation Wing record on 24th November 2006 highlighted mental health issues which Mr. Hair felt made him unable to be around other people.  The prison officer making the note recorded that he would speak to health care to see if staff could provide him with assistance.

10.	On 27th November 2006, the 2 further charges were found proved and Mr. Hair had 21 days added to his sentence and 14 days forfeiture of access to the canteen.

11.	On 28th November 2006, Mr. Hair again refused to obey an order to leave the Segregation Unit.  He was charged once more.  The adjudication was dealt with internally initially (Mr. Hair did not attend) and was referred (by Governor Small) to the Independent Adjudicator, who was not due to attend the prison again until 22nd December 2006.

12.	On 29th November 2006 Mr. Hair once again refused to obey an order to leave the Segregation Unit.  He was charged again.  That charge was also referred by Governor Small to the Independent Adjudicator.  

13.	On 7th December 2006 Mr. Hair assaulted Prison Officer Farley.  He was restrained and returned to his cell, which he smashed up and set on fire.  He also head-butted his head against the cell wall causing an open wound.  He was relocated to another cell on a different landing which was thought to be safer.  An Assessment, Care in Custody and Teamwork document (“ACCT”) was opened.  A case review records that he was moved to a different cell due to concerns about his mental health.  His risk was then assessed as “high”, though the risk assessment was subsequently revised downwards.

14.	On 8th December 2006 Mr. Hair was charged with assaulting Prison Officer Farley and with damaging prison property.  Mr. Hair responded to that charge with a written statement (“the written statement”) in the following terms:-

“IT DOESN’T MATTER THAT I’M NOT GUILTY YOUR GONNA DO WHAT YOU WANT ANYWAY BUT IF YOU THINK I’M GOING TO BE THREATENED, WOUND UP AND INTIMIDATED BY SOME BULLY FARMER ANY LONGER THEN YOUR WRONG.  FOR 2½ MONTH I’VE SAT QUIETLY BEEN POLITE AND NOT GIVE YOU ANY TROUBLE EVEN THOUGH YOU’VE TRIED TO BULLY ME YOU’VE MESSED WITH MY FOOD YOU’VE HAD NIGHT GLOGGYS WISPERING SHIT AND SCRATCHING ON MY DOORS AND WINDOWS ALL NIGHT. WELL I’VE TRIED TO DO IT THE RIGHT WAY AND YOUR JUST TAKIN THE PISS AND I KNOW THIS IS ALL DOWN TO SMALLS BECAUSE HE IS THE ONE WHO IS SETTING ALL THIS BULLSHIT UP ALL I WANTED WAS TO BE LEFT ALONE. SO FROM NOW ON WHEN MY HEAD IS TELLING ME TO GO FUCKIN SICK I’M NOT EVEN GOING TO TRY A STOP MYSELF FROM NO ON I’M GOING TO BE LIKE I USED TO BE BECAUSE THEN PEOPLE USED TO LEAVE ME ALONE OR I’D BURN-SMASH-FLOOD-BARRICADE AND FIGHT EVERYDAY SO IT’S UP TO YOU SMALLS CARRY ON WITH YOUR BULLYING TACTICS OR DON’T I’M PAST CAREING ANYMORE.”

15.	The reference to “Smalls” was a reference to prison governor Small.  He was not called to give evidence at the inquest.  He was involved with some, but not all, of the adjudications.

16.	At the foot of the written statement someone noted Mr. Hair’s conditional release date.  This was not in Mr. Hair’s handwriting and is likely to have been added by a prison officer.  It is not presently known which prisoner officer that was.

17.	Also on 8th December 2006, a case review noted that it was felt that Mr Hair was manipulating the situation for his own benefit.

18.	 On 9th December 2006 an internal adjudication hearing took place to consider the assault charge.  Mr. Hair did not attend.  The matter was heard by Tony Palmer, one of the prison governors, with Prison Officer Tropietko in attendance.  Neither of them was called to give evidence at the inquest.

19.	The record of the hearing has a number of boxes ticked.  One of the ticks (in the “yes” box) was in response to the query whether Mr. Hair had made a written reply.  Originally, the “no” box had been ticked but this was altered to “yes”.  The likelihood must be that the written statement was available at the hearing.  Evidence given at the inquest was to the effect that prisoners facing a charge very often brought the written reply along with them.  That cannot have been what happened on this occasion, as Mr. Hair did not attend the hearing.  The written statement was not found in his cell following his death.  The probability therefore is that the written statement was, through some member of the prison staff, communicated to those conducting the hearing, as it was on the file.

20.	The result of the hearing was that the matter was referred to the Independent Adjudicator, who was due to be at the prison on 22nd December 2006.

21.	At an assessment interview on 9th December 2006, Mr. Hair stated that he banged his head against the wall due to pressure from one of the prison officers.  

22.	An internal adjudication on the same day took place which Mr. Hair declined to attend.  A note in the Segregation Wing Records states that Mr. Hair thought that he was being bullied.

23.	On 11th December 2006, it was recorded that Mr Hair was manipulating the situation and was not prepared to integrate himself on to normal location.  The ACCT was closed.  A post closure review was planned for 16th December 2006.

24.	On 12th December 2006, Mr. Hair, having refused an order to return to the Segregation Unit, was forcibly re-located.  He was then made the subject of a further charge of refusing to obey a lawful order.

25.	Later that day, Mr. Hair threatened to kill a prison officer, for which he was charged again.   A hearing took place on 13th December 2006, in the morning.  Mr. Hair refused to attend.  The new charges were also referred to the Independent Adjudicator, due to attend the prison on 22nd December 2006.  

26.	At 3:40pm on 13th December 2006, Mr. Hair was found unconscious in a cell in the Segregation Unit with a ligature around his neck.  He was taken to hospital and died on 15th December 2006.

27.	An inquest took place concerning the circumstances of Mr. Hair’s death between 8th and 14th April 2008.  Before that, the Prison and Probation Ombudsman conducted an investigation of his own.  The Ombudsman, whilst making some recommendations, did not consider (because he did not have) the adjudication records concerning Mr.Hair. 

28.	A pre-inquest review considered the scope of the inquest and the witnesses to be called.  At this stage, the adjudication records and related paperwork (“the adjudication papers”) had not been disclosed.  Had they then been disclosed, it would have been apparent that Tony Palmer and Prison Officer Tropietko, both of whom were at the adjudication hearing of 9th December 2006 (where the written statement was apparently produced) were relevant witnesses.  The written statement would in turn, if then produced (which was not the case) have identified Governor Small as another relevant witness, as he was identified by name in the written statement as an alleged bully.  In addition, videotapes of Mr. Hair’s forced relocation to a safer cell had not then been disclosed.

29.	On the second day of the inquest, the adjudication papers were belatedly produced.  They were reviewed by the Claimant’s legal representatives over the luncheon adjournment on that day.  The written statement then came to light for the first time.  The documentation also revealed, for the first time, the number and frequency of disciplinary charges faced by Mr. Hair prior to his death.

30.	Copies of the adjudication papers were made overnight and provided to the Defendant and Interested Parties.  The prison officers who attended were cross-examined on them, but disclaimed all knowledge of significant parts, especially of the written statement.  Tony Palmer, Prison Officer Tropietko and Governor Small were not called, as their relevance had not previously been perceived.

31.	The peculiar significance of the written statement became evident during the inquest, and its relevance was largely self-evident anyway.  A forensic psychiatrist on Day 3 of the inquest (Dr. Gradillas) expressed the view that the written statement raised concerns about Mr. Hair’s mental state  In addition, Dr. Logan (the prison doctor responsible for Mr. Hair whilst in prison) was of the view that the written statement should have been (which it was not) drawn to his attention.  Had that been the case, it may have affected the decision to relocate Mr. Hair to the Segregation Unit and the closing of the ACCT document.

32.	The belated disclosure of the adjudication papers has not been satisfactorily explained.  On the contrary, Mr. Browne (for whose candour and truthfulness I am grateful) frankly acknowledged that he had requested disclosure well in advance of the inquest, which was not forthcoming.

33.	The belated disclosure had the potential to derail the inquest and, in the events which happened, in my judgment had that very effect.  None of Tony Palmer, Prison Officer Tropietko, or Governor Small, was called as a witness.  Had the adjudication papers been disclosed timeously, it is difficult to imagine that those individuals would not have been called.

34.	As it happens, Miss Gerry for Ms. Hair had at the inquest the benefit of the belated production of the adjudication papers, but the individuals she was able to question were unable to comment meaningfully upon what turned out to be the most important element, namely the written statement, which disclosed, on the medical evidence, a mental fragility on the part of Mr. Hair which raised serious question marks over the advisability of requiring his return to the Segregation Unit.

35.	The inquest was conducted with a jury.  The jury had the relevant part of the adjudication papers showing that Tony Palmer and Prison Officer Tropietko were present at the hearing of 9th December 2006, and the written statement.  The coroner did not however give any clear direction to them on the significance of the adjudication papers.  The significance was, as I have indicated, that it seemed highly probable that someone involved in the adjudication process must have known of the written statement, which of itself demonstrated (at least) a disturbed mental state on the part of Mr. Hair.  Why, then, did the adjudication staff not recognise the need to refer that statement to the medical staff?

36.	I will set out the result of the Inquisition in full.  In line with the guidance contained in R (on the application of Middleton) v HM Coroner for the Western District of Somerset & Anor [2004] 2 AC 182, at paragraphs 20 and 46, the jury answered a series of questions with some narrative.  Mr. Hair was referred to as “David”.

37.	The questions (in lower case) and answers (in upper case) were:-

“1.  Are you sure David killed himself?
YES
2.  Are you sure David intended to kill himself?
NO
3.  Is it likely or unlikely that when the hanging incident occurred the balance of David’s mind was disturbed?
WE FEEL THAT IT IS LIKELY THAT THE BALANCE OF DAVID’S MIND WAS DISTURBED. CONSIDERING HIS RESPONSE STATEMENT TO HIS ADJUDICATION ISSUED ON THE 8/12/06
4.  Was David certified dead at about 23:00 hours on the 15/12/06 at Staffordshire General Hospital from the effect of the hanging incident at Stafford Prison on the 13/12/06?
YES
5.  Was it appropriate for the ACCT form to be closed on the 11/12/06?
WE FEEL THE ACCT FORM SHOULD NOT HAVE BEEN CLOSED AND DAVID SHOULD HAVE HAD FURTHER OBSERVATIONS.  ALTHOUGH EVIDENCE SHOWS NO FURTHER CONCERN FROM MOST STAFF MEMBERS, DR GRADILLAS’S STATEMENT SUGGESTS IT IS DIFFICULT TO ASSESS HIS STATE WITHOUT FURTHER OBSERVATION.
6.  Did David’s move from a safer cell to segregation unit on the 12/12/06 materially contribute to his death?
YES. WE FEEL THIS FOR TWO REASONS.
THE FIRST BEING THAT STAYING IN THE SAFER CELL WOULD HAVE BEEN COMPLYING WITH HIS WISHES AND, SECONDLY IT WOULD NOT HAVE BEEN PHYSICALLY POSSIBLE – ACCORDING TO EVIDENCE – FOR HIM TO HAVE HARMED HIMSELF IN THE WAY HE DID IN THE SEG.
7.  Did the policy towards and management of David’s refusal to leave the Segregation unit significantly contribute to his death?
NO
8.  Did any failure by the disciplinary staff to tell health care staff of the response to adjudications by David significantly contribute to his death?
NO. THERE DOES NOT SEEM TO BE ANY EVIDENCE SUGGESTING THAT THE DISCIPLINARY STAFF WERE AWARE OF DAVID’S RESPONSE TO THE ADJUDICATIONS. 
9.  Was David being bullied by Prison Officers?
If yes, did this materially contribute to his death?
NO.  WE DO NOT DEEM THE ADJUDICATIONS TO BE A FORM OF BULLYING.  THERE IS ALSO A LACK OF EVIDENCE TO SUGGEST ANY OTHER FORMS OF BULLYING.”

38.	As previously mentioned, the integrity of an inquest concerning the death of a prisoner has to be judged by reference to amongst other considerations the paramount importance of Article 2 of the ECHR.  Where (as in this case) the state’s conduct is in question, there must be a full investigation, with family participation, of by what means and in what circumstances the relevant death came about.  Timeous production of documents is also an essential requirement, to enable proper preparation and the identification and summoning of relevant witnesses.

39.	The jury, during their deliberations, sought further guidance from the coroner in regard to Question 8.  The jury could not remember where the written statement was kept and (if it was on the file) who had access to it.  Had any of the disciplinary staff seen it?

40.	There then followed (in the absence of the jury) a debate between the coroner and the various representatives as to how this question should be answered.  Miss Gerry for Ms. Hair drew attention to the written record of the adjudication hearing of 9th December 2006, with the ticked box indicating that Mr. Hair had put in a reply, and to the fact that the written statement was not found in Mr. Hair’s cell after his death.  Unfortunately, the direction then given to the jury omitted to mention that it was open to them to  infer from these facts that .one or another of the adjudication staff must therefore have seen the written answer. 

41.	The raising of this query by the jury shows the critical importance they were attaching to the evidence of who might have seen the written statement.  As I have indicated, the probability is that someone amongst the adjudication staff must have seen the written statement.  Despite this, the answer eventually given by the jury was that there did not seem to be “any evidence” suggesting that disciplinary staff were aware of that statement.  I am bound to say that this answer strikes me as perverse.  There most certainly was evidence to that effect, but the jury were in the difficulty that they had not heard from either of the persons known to have been present at the hearing on 9th December 2006, and they were not given proper guidance as to the inferences open to them from the documentary record. In my judgment, the coroner’s summing up was inadequate in failing to address the jury on the potential significance of the documentary evidence.  Underlying this defect, however, was the more fundamental defect of the failure on the coroner’s part to appreciate, once the adjudication papers were produced, the need to call as witnesses Tony Palmer and Prison Officer Tropietko.  The Prison Officers who were called disclaimed all knowledge of the written statement.  It is conceivable that the evidence of those who were at the hearing in question may have undermined that disclaimer.  Even without that evidence, the fact that the written statement was found amongst the adjudication papers and not amongst Mr. Hair’s possessions, and the appropriate inferences to be drawn from that, ought to have been put to the jury, especially as one of the Prison Officers who gave evidence was apparently responsible for the management of the adjudication files, and was working on them on the day of Mr. Hair’s death.  

42.	I have some sympathy for the coroner who, in common with the parties, was dealing with inexcusably late disclosure which seems to have caught everyone on the hop.  Nevertheless, the responsibility for ensuring that all relevant witnesses were called was ultimately his. It seems to me that it was his duty to ensure, even at the expense of an adjournment (had that proved necessary), that all relevant witnesses were called on the question of who (if anyone) had access to the written statement and why it was apparently ignored.  Tony Palmer and Prison Officer Tropietko were in my judgment obviously relevant witnesses, and the jury’s question demonstrates the critical potential importance of their evidence.  The failure on the coroner’s part to call those witnesses, or even to comment upon the significance of the documentary record, seems to me fatally to undermine the integrity of the inquest.  Given also that the error was a result of late production of documents by the state, it seems to me that the state has, partly as a result of its own conduct, not been held properly to account and that the inquisition must, in those circumstances, be quashed and another inquest ordered.  The jury’s answer to question 8 is testimony in itself to the inadequacy of this particular inquest in the circumstances.

43.	Moreover, any further evidence that might have been given on the issue of who had access to the written statement, and why it did not evoke an appropriate response, has the potential to have a knock-on effect on questions 7 and 9.  If members of the disciplinary staff read the written statement, but chose to ignore it, that may conceivably have put in doubt the advisability of the policy of bringing repeated charges against Mr. Hair, or even support the bullying allegation.  On the oral evidence as it was before the jury, I have no doubt that the answers that they gave to Questions 7 and 9 were supportable, and that the coroner’s directions, based on the evidence, were adequate as far as they went.  His summing up was not particularly detailed, but the issues were straightforward enough, and the evidence was fresh in the jury’s mind.  Despite this, the further evidence that might now be adduced, which should include Governor Small, given Mr. Hair’s naming of him, may conceivably put these issues also in a different light.

44.	For these reasons, the inquisition is quashed and a new inquest is ordered.

45.	Miss Gerry also claims that Rule 40 of the Coroner’s Rules 1984 prevented the inquest from complying with Article 2 of ECHR.

46.	Rule 40 provides:-

“No person shall be allowed to address the Coroner or the jury as to facts”

47.	The requirement under Article 2 is to ensure that the state is held properly to account in respect of any death for which it may be responsible.  Sadly, that typically embraces the death of prisoners in custody.  No particular form of procedure is required, however, so long as there is an effective investigation, in which the family of the deceased person is involved.  Addressing the coroner or jury as to facts is not, in my judgment, an essential pre-requisite of an effective investigation.  

48.	Miss Gerry points in this case to the difficulties she laboured under when addressing the coroner as to the questions that should be put to the jury.  Nonetheless, the questions that were put corresponded to what she and all other Counsel involved wanted to be put.  She was also allowed to address the coroner, as were the other Counsel involved, in reminding him as to what the evidence was as to who had access to the adjudication papers and the written statement.  To the extent that the coroner’s summing-up to the jury was deficient, she can complain of that without recourse to Rule 40. To the extent that it was adequate, she can have no complaint.  An inability to address the coroner as to the facts generally does not make an adequate summing-up inadequate.  

49.	Miss Gerry seeks an order quashing Rule 40 on the grounds of incompatibility with Article 2 of ECHR.  I decline such an order.  I do not consider Rule 40 to be incompatible with Article 2.  As I have said, no particular process is required to hold the state to account, as long as it is effective.  Miss Gerry’s submission, if accepted, would open the door to lengthy submissions in all cases having any state involvement.  I do not consider this to be an essential element of what is in many respects an inquisitorial process, notwithstanding that there are also adversarial elements.  Rule 40 has been around for a long time, and, whilst it has attracted comment, no-one has suggested that it is invalid and Middleton supports the proposition that the Coroner’s Rules are, in general terms, ECHR-compatible.

50.	Alternatively, Miss Gerry asks that Rule 40 be read so as to allow interested parties to address the coroner as to facts where necessary to ensure Article 2 obligations are complied with.  Tempting though it is to accede to this submission, I decline to do so.   Ultimately, the resolution of this sort of case turns not on what submissions as to facts the parties are allowed to advance, but on the adequacy of the coronial process.  Had the coroner in this case called all relevant evidence and given an impeccable summing-up, there would be no scope for complaint simply on account of the absence of the opportunity to make submissions as to the facts.  As it happens, I have found deficiencies in the coronial process in the instant case, but the criticism of Rule 40 adds nothing.  In my judgment, the ability to make submissions as to the facts, whether to the coroner or the jury, is not necessary to ensure compliance with Article 2.  That being so, the suggested construction of Rule 40 is inappropriate.

51.	I will invite the parties to agree a form of order giving effect to this judgment.  Any costs submissions (in the absence of agreement) should be made in writing within 21 days of today, 15th October 2010.