QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| R (on the application of) Carol Pounder (2)
|- and -
|HM Coroner for the North and South Districts of Durham and Darlington
Youth Justice Board
Serco Home Affairs Limited
Lancashire County Council
1st Interested Party
2nd Interested Party
3rd Interested Party
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
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Official Shorthand Writers to the Court)
Jonathan Hough (instructed by Hewitts) for the Defendant.
Neil Sheldon (instructed by Treasury Solicitor) for the 1st Interested Party
Charlotte Ventham (instructed by Serco) for the 2nd Interested Party
Hearing dates: 4th February 2010
Crown Copyright ©
The Hon Mr. Justice Burnett:
" In broad terms the evidence adduced at the inquest reveals the following picture. In the early evening in question, Adam and another inmate were in their free association period outside their bedroom cells. A third inmate who had been deprived of association and sent to his cell for disciplinary reasons passed a note under his cell door to Adam in which abusive remarks were made about the female training officer (Ms Murray) who was supervising the trainees. As a result of disobeying an order to hand over the note, Adam was himself ordered to go to his cell by way of sanction. He refused to go to his cell protesting that he had done nothing wrong. He sat down and resisted requests to move without offering any violence to himself, other inmates or staff or inciting other inmates to violence or disorder. Ms Murray called a more senior officer (Mr Gardiner), whose attempts to persuade Adam to go to his cell were also unsuccessful and who in turn called for emergency assistance from other members of staff by way of a call known as first response. The evidence before the inquest suggested that calling for first response tended to result in the use of physical restraint. Officers Hamilton, Lowerson, Clark and Hodgson attended the scene in response to the call. As Adam still refused to leave the association area voluntarily two male officers (Hamilton and Lowerson) physically took hold of each of his arms. He struggled in resistance to this and so a third officer (Hodgson) controlled his head with both hands. There was further resistance and a fourth training officer (Clark) came from behind Adam and took hold of both his legs. He was lifted off the ground and moved face downwards to his cell where he was placed face down on the floor before the officers left the cell. Officer Horseman attended to make a video recording of the restraint. During the manoeuvre, Mr Hodgson, the officer who held Adam's head feared that Adam was trying to bite the officer's fingers and so applied what is known as a nose distraction technique. This is a short sharp movement applying force by fingers under the nostril against the counter-force of the other hand holding the back of the head. It is a pain-compliant technique. It made Adam very upset and angry during the rest of the manoeuvre and immediately thereafter. It caused his nose to bleed. This was not an unusual outcome of the application of this technique in Hassockfield. When he was locked into his cell and left alone for some 30 minutes he was bleeding from his nose and shouting that he would use violence on the officer who had applied the force. He smeared blood over the walls to his cell, smeared toothpaste over the spy-hole to his cell door and flooded his cell with water. Later he appeared to have calmed down, was allowed out on association, cleaned up his cell and spoke to his solicitor. He made it plain that he wanted to complain about the force used on him. Around 8.00pm he was seen by a nurse who noted a small amount of swelling over the bridge of the nose, and dried blood around the nose and mouth. She did not consider any hospital treatment was needed that evening. He went to bed and was last checked inside his cell around 9.30pm when he seemed to be calm and focused on the day ahead. He was observed to be moving around his cell through the hatch over the next two hours. At one point he was required to remove a piece of card blocking the hatch. He was found in his bedroom cell fatally asphyxiated shortly before midnight. The injuries he received in the restraint were minor and not the direct cause of death."
Blake J concluded that it was impossible for an enquiry to be made into whether the force used on Adam Rickwood was appropriate or proportionate without the Coroner ruling or giving clear guidance to the jury on whether the force was lawful. As he put it, "a restraint can hardly be appropriate if it is unlawful." . He also concluded that the force used on Adam Rickwood was clearly unlawful having regard to the Secure Training Centre Rules 1998 (SI 1998/472) ["the Rules"], in particular Rules 36 to 38. In the period between the inquest and the hearing of the Judicial Review, the Court of Appeal had delivered judgment in R (C) v. Secretary of State for Justice  EWCA (Civ) 882. That case concerned revisions to the Rules which the Court of Appeal considered were unlawful because, in particular, "pain compliance" techniques when applied to children would violate Article 3 of the European Convention on Human Rights ["ECHR"]. The nature of the restraint imposed on Adam Rickwood involved pain compliance. Additionally, the Court of Appeal had cause to consider the very question of the legality of the restraint of Adam Rickwood. It had been the submission of Serco, through its leading counsel at the inquest, that the restraint was lawful. Serco's witnesses (in circumstances to which I shall return) stated their belief that the restraint was lawful. The Court of Appeal noted that the view of the law so expressed was wrong (see paragraph  of the judgment of Buxton LJ).
"I therefore allow this application for judicial review. I will quash the inquisition reached by the jury and remit the matter to the Coroner to conduct a fresh inquiry in accordance with this judgment. The remit and scope of that inquiry will be for the Coroner having heard the submissions. I merely express the hope that the parties may be able to agree that certain matters are now not so controversial or unclear as to require extensive live evidence and cross-examination, and that there may be scope for an agreed statement of facts to be read or put to the jury. I am grateful to all counsel for their considerable assistance in this sad and challenging case."
It is clear that the Judge expected that the matter would be remitted to the Coroner to conduct a fresh inquest having taken care with the interested persons to define its parameters. He anticipated that the Coroner, with the assistance of the interested persons, would devise mechanisms to avoid the unnecessary repetition of oral evidence which, following the earlier inquest, might be admitted in writing. No suggestion was made to Blake J. that the Coroner should not conduct the fresh inquest: it was not a matter upon which he was asked to rule.
"Mr Hermer QC proceeded to suggest in the second part of his application that were I to agree to recuse myself who should be appointed to hear the inquest. I agreed with his suggestion that it would be improper for either my deputy or assistant deputy to hear the inquest were I not to hear it myself. He suggested that it would be appropriate for a serving or recently retired High Court Judge to be appointed as an assistant deputy coroner to hear the inquest, bearing in mind the nature of the case and that I should contact the Ministry of Justice in that regard. As previously mentioned, I have made enquiries with the Ministry of Justice and it would not automatically follow that even if I were so to approach the MOJ to seek the appointment of a judge that this request would be acceded to. It is my understanding that the MOJ take the view that except in the most exceptional circumstances inquests should be heard by Coroners and not judges, a view which was recently endorsed by Lord Bingham speaking extra-judicially. It may be that another coroner, deputy or assistant deputy coroner would be an appropriate person to hear the inquest if I were not to do so. My observations in this regard do not form part of my decision- making process in this case but are included herein in fairness to the proposition put by Mr Hermer QC."
"Most of the leading authorities were appeals arising from hearings that had already taken place or were under way and an objection to the judge was based on facts discovered during the course of, or only after the end of, the hearing. Although this is a different case, as the hearing has not yet started, the same principle applies. Where the hearing has not yet begun, there is also scope for the sensible application of the precautionary principle. If, as here, the court has to predict what might happen if the hearing goes ahead before the judge to whom objection is taken and to assess the real possibility of apparent bias arising, prudence naturally leans on the side of being safe rather than sorry."
a) The causal significance in Adam Rickwood's death of the earlier removal and restraint;
b) Whether those employed by Serco at Hassockfield STC honestly believed that it was lawful for them to remove and restrain Adam Rickwood in the way they did;
c) Whether the YJB and its staff honestly believed that the Serco employees had power to do as they did.
a. "10. There was no evidence that the restraint generally, or the technique applied, had directly caused the death or that it had had any physical effect on AR other than noted above. There was no evidence that it had had any particular effect on AR mentally, save that he expressed an intention to make a complaint. There appeared to be no evidence, nor any suggestion of, any causal connection between it and the death. It was not submitted by the family that there was any such direct link of the sort which might have justified a consideration of an unlawful killing verdict. The jury in their answers found no causal connection."
b. "12. A note left by AR is found at volume 2 page 695. It is notable for how well written and how lucid it appears AR then was. It does not suggest he regarded the restraint as an element of his decision, as it is not mentioned in this note. He begins by saying, "Lately over the past few months or so things have been very hard for me …". While he did write the other note mentioned at paragraph 9 above, it does not suggest that the restraint caused him to act as he did."
c. "18.4 There was no evidence that the restraint was a circumstance which directly caused the death. When considering whether it might have been a matter preying on AR's mind the jury would not have been assisted by knowing whether the restraint was lawful. It was fanciful to suggest that, even though he resented the application of the technique, that emotion flowed from a concern that the technique, in common use at Hassockfield, was unlawful."
d. "18.5 Once it is recognised that the restraint, 6 hours before his death, played no known or identifiable part in AR's decision, and that he could not have been concerned about its lawfulness or otherwise, and the staff believed they were exercising a lawful power, it can be seen that the issue is irrelevant. The issue is then not whether the restraint was lawful, but whether AR exhibited any signs after the restraint which made it necessary for any of the interested persons to act in any particular way. It is in those circumstances that the risk presented by the matters identified in paragraph 18.1 and 18.2 made it imperative that the issue was not made the subject of a direction."
e. "22. … It is submitted that if the contention that the restraint played no part in the death is correct, there is not even evidence of negligence by the staff at Hassockfield."
a. "2.2 There was no evidence that the restraint, the lawfulness of which is the subject of this claim, had any physical effect on Adam save that it caused some pain and a nosebleed. There was no evidence, and the jury did not find, that it caused him to resolve to take his life. While it was accepted that the restraint was a proper subject of consideration in the inquest, it was never accepted by the Defendant or any of the interested parties, nor was it even suggested by the Claimant, that it may have been a cause of death, contrary to what is now suggested by the Claimant at paragraph 15 of her skeleton argument."
b. "2.3 Whatever the effect the restraint may have had upon him psychologically, it is now accepted at paragraph 20 of the Claimant's skeleton argument that this would not have been affected by the lawfulness or otherwise of the restraint. At the time of the death Adam had numerous other issues, itemised at paragraph 11 of the Defendant's Detail Grounds, on his mind, and a note he left, remarkable for its clarity of thought and expression, suggested that his decision had been formed over a period of months."
c. "5.2 While it was the Defendant's conclusion that there was no evidence that the restraint led to the death, and while that was the decision of the jury in the answers to the questions asked of them, it was a proper course for the Defendant to take, acting within his discretion, to examine the restraint in the course of the search for and the recording of the facts."
d. "6.2 The example advanced by the Claimant at paragraph 20 of her skeleton argument, concerning the administration of drugs, makes the point against her. If a drug were administrated unlawfully, and it caused death, that would be a relevant issue for an inquest, because the drug led to the death. If a drug were administered which did not cause death, there would be no inquest, only perhaps some criminal or disciplinary proceedings; here the restraint did not cause the death."
e. "12.3 The jury did investigate all relevant facts. They did not regard the restraint as a fact which caused or contributed to Adam's decision to take his life. There is no reason to suppose any other jury would reach a different conclusion."
a. "18.2 It was relevant to establish whether the staff members regarded themselves as acting lawfully, or whether they believed they had a power to do what they had done; each said they did. Had they not believed they had such a power, they would have acted in the knowledge that they used force upon AR in the absence of power, and that they knew they were assaulting him. Once it was established that each genuinely believed that they had a power, whether they, or those who had trained them, were correct in law was irrelevant."
b. "18.5" Already quoted above in connection with causation.
c. "26. What might be achieved by directing the jury as to lawfulness? … 26.2 To permit the jury to assess credibility? As noted above, in circumstances where an institution may have made an honest mistake about the lawfulness of an act, and staff members have been trained that an act is lawful, a direction that the act was unlawful may confuse a jury."
And from the skeleton argument:
d. "9. Once it was established that the staff were not knowingly assaulting Adam, and that the restraint did not lead to the death, its lawfulness or otherwise lost any significance. In that context, it was right for the Defendant to weigh the matters which argued against ruling."
"Counsel: Well, we are going to look at two more things before we come to whether or not you are telling the truth, Mr Bowers.
Coroner: Are you seriously suggesting that one of the directors of the Youth Justice Board…
Coroner: Is lying to my inquest?
Counsel: Yes, yes I am and I'm going to develop that if I may.
Coroner: Well it's a very serious
Counsel: Yes, I understand that"
On the same day, but in the absence of the jury, the Coroner considered an argument over written evidence that was available from Ellie Roy, the Chief Executive of the YJB. That evidence supported the evidence given by Mr. Bowers concerning their understanding in 2004 of the legality of the restraint. In the course of exchanges with counsel for the YJB, the Coroner said this:
"… so if Mr Bowers is right in what he says, that he is representing the official line of the Youth Justice Board then that should preclude him being here on a frolic of his own, if that is the line he says the Youth Justice Board have, then I would be inclined to accept that, it's a matter for the Jury whether the Jury think there's, using one of Mr Hermer's words from yesterday, duplicity on the part of the YJB is another issue, but I would find it difficult to accept personally that the YJB would deliberately come to tell lies to me, which is what Mr. Hermer, in effect, is suggesting. It's a matter for the Jury to establish where they think the right facts lie, but I find it very difficult to go behind what the Youth Justice Board's official line today is as to what their view was then. Now, if that conflicts with anybody and everybody else, as Mr Hermer has, with great clarity, illustrated, then that is a factual matter which the Jury, I would have thought, are going to have to come to some conclusion about."
(i) It is submitted that on the question of causation the jury did not express the view, as they might have done, that the restraint had a causative effect on what followed. There was considerable textual analysis in argument of the questions left to the jury. It was Mr Hermer's submission that such analysis suggested that the questions positively discouraged the jury from expressing a view on the causation of the restraint. It is unnecessary to set out the questions or answers because Mr Hough accepted that on one reading of the questions that was so. Furthermore, the jury did not receive any direction on this aspect of causation. That is hardly surprising because the Coroner's view was that there was no evidence to support such a finding. That view was repeated in the detailed grounds and emphasised in the skeleton argument by the clear statement of the Coroner's conclusion that there was no causation. Furthermore, the assertion in the detailed grounds that the Claimant had not suggested that there was causation was not accurate.
(ii) The Coroner submits that a fair reading of the detailed grounds relating to the honesty of the Serco witnesses shows that the point being made was simply that the lawfulness of the restraint was not relevant to the factual issues at the inquest. The real issue was whether or not the staff had honestly believed that they were acting lawfully. No concluded view was being advanced on that question. In my view, that argument is difficult to sustain in the light of the language used in the extracts set out above. Whilst correct to say that the relevance of the lawfulness of the restraint was being questioned in these passages, the argument could be made only if the premise of honest belief was established. A fair-minded reader would, I conclude, believe that the Coroner has expressed a concluded view on this matter.
(iii) The Coroner does not dispute that the passages quoted concerning the YJB demonstrate his own scepticism of the suggestion that Mr Bowers was lying. Blake J was careful to say that he had no reason to doubt the honesty of Mr Bowers. In considering any piece of evidence, it is necessary to decide whether what is being said is accurate and reliable. If the conclusion is that a piece of evidence is unreliable, it may then become necessary to consider whether the witness is honest but mistaken or is deliberately misleading the Court. It is one thing to suggest to a witness that he is wrong, quite another to say that he is lying. The distinction is unlikely to be lost on experienced advocates, yet it is not inappropriate for a judge to clarify the position, given the seriousness of making such an allegation. In the extract quoted from the cross-examination of Mr Bowers, the Coroner was doing no more than that. Having established that Mr Hermer was indeed questioning the integrity of the witness, the cross-examination continued. The passage from the transcript dealing with exchanges in the absence of the jury indicates the Coroner's view that he had difficulty in accepting that the witness was lying. However, he was careful to express himself in terms that reflected his own scepticism but recognised that it was a matter for the jury. I see nothing objectionable in these extracts.
Additional Factors in the bias argument
"An error of law or a wrong decision on the facts without more is not indicative of either apparent bias or substantive bias. The law presumes that coroners, like other judicial officers, will apply the law in a fair and even-handed way. However, the law does not presume that every judicial officer of whatever rank is incapable of falling into error, and appellate courts frequently make orders reversing procedural or substantive decisions made by lower courts and tribunals, and then remitting the case to that court or tribunal to proceed with the matter in accordance with the ruling of the appellate court. In doing so, the law presumes that the judge or judicial officer concerned can be relied upon to proceed in accordance with the direction of the superior court."
I would respectfully endorse those observations.
The New Coroner
'[A] small number of exceptionally complex or contentious inquests should be taken by suitably trained Circuit Judges, and a yet smaller number of still more complex inquests should be heard by suitably prepared High Court Judges, each sitting as Coroner. This provision, too, should be sparingly used.
Allocation of inquests at Circuit Judge level would be arranged by the Presiding Judge of the relevant Circuit on application from the Regional Co-ordinating Coroner. Inquests at the High Court level might largely be confined to those following disasters with multiple deaths, though we do not exclude other cases where appropriate. They would be arranged by the Chief Coroner in liaison with the Presiding Judges of the Circuits on application from the Regional Co-ordinating Coroner.'
"Counsel all complimented the coroner on the fair and considerate way in which he conducted this inquest but it is a matter of the greatest concern that four months short of five years following this tragic incident, I have now felt driven to quash the verdict in a second inquest. Mr Stanley's family have had to live through two such inquests and two applications for judicial review (the first brought by them, the second by one of the police officers); the uncertainty itself must have seriously aggravated their difficulties. The same point can be made in respect of the officers.
This was always going to be a highly sensitive and difficult inquest to conduct. All deserved better from the system and it is sufficient if I add my weight to the call to implement the change recommended by the Fundamental Review. Without any disrespect to the coroner, this extremely difficult case would have benefited from judicial oversight at a higher level.
Buxton LJ then added:
The task that the coroner faced in this case, dealing with a technical point of English criminal law that has exercised the leading authorities in that subject, underlines that he should not have been asked to deal with this difficult case. It merited the attention of somebody more regularly familiar with the issues in hand."
1. Table 1: Self-inflicted deaths in prison custody (England and Wales) by gender
2. Table 2: Self-inflicted deaths in prison custody (England and Wales) by age band
|Age band||Under 18s||18-20||21+||Total|
Self-inflicted deaths amongst those under 18 are mercifully rare, those of young adults relatively uncommon but of adults unfortunately frequent. Save in isolated cases, coroners have conducted the resulting inquests.