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 2010

1. MR JUSTICE WILKIE: This is a claim for judicial review of a decision of the Coroner for Cardiff and Vale of Glamorgan made on 27th March 2009.
2. The inquisition certifying the conclusions of the Coroner included a finding that Margaret Thomas died on 2nd June 2007 at home. The medical cause of her death was first cardiac dysrhythmia, caused by secondary, hypoglycemia and secondly, coronary heart disease. The verdict of the Coroner was that it was an unlawful killing.
3. The Coroner had come to this conclusion after an inquest running for three days between the 25th and 27th March 2009. In a document entitled "Summing-up and Verdict", which was delivered by the Coroner on 26th March, she set out a series of findings of fact which were, by and large, not in dispute which were to the effect that Mrs Thomas had died after being given, by the claimant, an overdose of medication which was ten fold what should have been administered. She addressed herself to the question of purpose of the inquest under section 11 of the Coroners Act 1988. She reminded herself of the provisions of Rule 42, that no verdict shall be framed in such a way as to appear to determine any question of criminal liability on the part of a named person. But she concluded that one of the issues she had to consider was whether there was an unlawful killing and in particular, an unlawful killing in the form of gross negligence manslaughter.
4. She directed herself that, whilst a Coroner's court is not a place where she could return a verdict of gross negligence manslaughter, in the sense of finding anybody guilty of that offence, in considering whether she should return a verdict of unlawful killing, she had to consider, as part of her consideration, of all the circumstances, the conduct of the individuals concerned and, in particular, the conduct of the claimant, Joanne Evans. She then directed herself on the law concerning gross negligence manslaughter. She described the four constituent parts. She focused on the fourth of those, namely whether in the circumstances, the breach of duty was so reprehensible to amount to gross negligence, in other words so bad as to amount to crime.
5. She reminded herself that the Crown Prosecution Service had already decided not prosecute anyone in relation to the death of Mrs Thomas, on the basis that their view was that the negligence was not gross for the purposes of gross negligence manslaughter. She reminded herself of the standard of proof on which she had to be satisfied, namely proof beyond reasonable doubt. Having comprehensively reminded herself of the law, she applied the law to the facts that she had found. In so doing she analysed the evidence and the conduct of the claimant, Joanne Evans, by reference to the four matters which had to be proved and, in particular, she analysed the evidence and findings of fact in relation to the fourth limb already referred to.
6. In so doing she named Joanne Evans repeatedly. That part of the document concluded in the following terms:

"Taking everything I have heard into account and with a heavy heart, I must conclude, however caring a person the nurse was, the treatment given to Margaret Thomas on 2nd June 2007 was negligent and that negligence was indeed gross. I therefore see no alternative but to return a verdict of unlawful killing."

She then went onto consider some wider aspects of the case, under Rule 43 of the Coroner's Rules and, having done so, indicated that she intended to write a Rule 43 letter to the relevant trust. That effectively concluded that part of the document. The last part of the document was a formal certification in the form of an inquisition containing the verdict of unlawful killing.

7. The claimant seeks to judicially review the decision of the Coroner on a number of grounds. Underpinning all the grounds, there has to be a consideration of the operation of the European Convention on Human Rights and, in particular, Articles 2 and 8. Article 2 is couched in absolute terms and has been subject of much judicial authority at the highest level in so far as it applies to, the conduct of inquests under the 1988 legislation. In particular, it is apparent that Article 2, requires a somewhat wider interpretation of the statutory obligation under section 11 of the Act to decide how a person died. The obligation is widened to consider how and in what circumstances the person died. Article 8 protects the privacy of individuals and undoubtedly it is engaged where, in the course of a Coroner's inquest and in particular, in relation to the returning of a verdict and, the reasons for it and the naming of a person in such a public and authoritative document which has the potential for infringing their rights to privacy.
8. That right is not an absolute right. Considerations as to whether a prima facie infringement breaches the right requires regard to be had to whether the infringement is in accordance with law, whether the measures taken are designed to meet the legislative objective and rationally connected to it and whether the means which impair the right are no more than is necessary to accomplish the objective.
9. In this connection and in this case the provisions of section 11 of the Coroner's Act and Rule 42 of the Coroner's Rules 1984 come directly into play. In particular section 11(4) provides that:

"In the case of an inquest held without a jury the Coroner shall after hearing evidence (a) give his verdict and certify it by an inquisition."

Then subsection (5):

"An inquisition shall be in writing under the hand of the Coroner...

(b) shall set out, as far as such particulars have been proved (i) who the deceased was and (ii) how, when and where the deceased came which his death."

Subsection (6) provides:

"At a Coroner's inquest into the death of a person who came by his death by... manslaughter... the purpose of the proceedings shall not include the finding of any person guilty of the... manslaughter... and accordingly a Coroner's inquisition shall in no case charge a person with any of these offences."

Rule 42 of the 1984 Rules is entitled "Verdict" and provides:

"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..."

10. The first two grounds upon which the claimant seeks to challenge this Coroner's decision concerned the obligations under Rule 42. They are couched in what, for the purposes of the argument, I characterize as a narrower and a wider form. In the narrower form it criticises the Coroner for producing, in a single document, a narrative which names the claimant throughout and at the end of which reaches the conclusion that the Coroner could "see no alternative but to return a verdict of unlawful killing."
11. It is said that this document constitutes a verdict, the framing of which appears to determine question of criminal liability on the part of the claimant, a named person and so is said to be unlawful as contrary to Rule 42.
12. The Coroner takes issue with this proposition and argues that the verdict, properly so-called, is not to be found in the document headed "Summing-up and Verdict" which ends with the conclusion to which I have referred. On the contrary the Coroner argues that the verdict, properly so-called, is limited to the single page upon which the inquisition is set out and that, as it does not name the claimant, there is therefore, it is argued no breach of Rule 42.
13. Considerable argument has been addressed to me about how the business of an inquest would be impracticable or potentially impracticable if, in a case, with a jury, the Coroner were unable to identify persons in summing the case up, or was unable to give rulings as to what possible verdicts might be left to the jury or what possible verdicts the Coroner herself might consider, if it were not possible to name the individual or individuals concerned.
14. It is pointed out that in order to comply with Article 2, it is relatively common for the Coroner or the Coroner jury to provide a brief narrative verdict in which, if it is anonymised, there can be no question of breach of Rule 42. From that it is argued that, as there is an obligation in the Coroner to provide reasons for any decision to which she may come, it would be inappropriate to regard the statement of reasons supporting the Coroner's nominal verdict, recorded in the inquisition, as being part of the verdict for the purposes of Rule 42. It is argued that such a document is properly not to be regarded as part of the verdict and that the document, "summing up and verdict," in this case was not a part of the verdict, even though it contain the reasoning supporting the verdict as formally recorded in the inquisition.
15. It seems to me that this argument may or may not be correct but I have no hesitation in concluding that the contrary argument, advanced by the claimant, that, in this particular case, the way in which the reasoning of the Coroner is immediately followed by her conclusion that she has no alternative but to return a verdict of unlawful killing, does itself form part of the verdict being the reasoning supporting it. Accordingly on this narrower basis I find the point raised by the claimant arguable.
16. The wider basis is more fundamental in its form and in its potential consequences. Essentially what is said is that wherever, as in this case, a verdict of unlawful killing can, on the facts, only involve one or more or a number of named individuals, then, even if the reasons for the verdict or the verdict itself are anonymised because of the working of Article 8, if it is obvious that the verdict of unlawful killing relates to the conduct of somebody who is readily identifiable, then that so infringes Article 8 and is not necessary for the legislative objective of deciding how a person died, that it cannot be lawful for a Coroner, or a Coroner's jury, to consider a verdict of unlawful killing. This is a far-reaching proposition. As counsel for the Coroner has pointed out in his skeleton argument, it would go against the grain of a series of, first instance decisions in the Administrative Court in which it is assumed that an unlawful killing verdict can be left to a jury, or may be considered by a Coroner, even though the surrounding circumstances are such that the person responsible for the unlawful killing can be readily identified and even though the verdict itself is framed in such a way as to not name that person.
17. Furthermore, it is said by inference that the claimant's contention would be contrary to the approach which the House of Lords has adopted Jordan v Lord Chancellor [2007] 2 WLR 754 and the way in which the matter has developed in the cases of Jameson and Middleton, the most authoritative statements of the interplay between Rule 42, the function of the Coroner and the impact of Article 2 upon this area of the law.
18. In my judgment, the arguments put forward by the Coroner in relation to this wider proposition, for which the claimant seeks permission to argue, must be right. It is an extraordinary proposition, given the obligations, both statutory and under Article 2, that the Coroner should be dis-empowered from leaving an unlawful killing verdict as a possibility for the jury or considering such a verdict herself, merely because the surrounding circumstances are such that the person responsible for the unlawful killing either would be, or would be capable of being, identified in a verdict framed in a way which complied with Rule 42. I find that proposition to be unarguable and I do not give permission for that wider argument to be advanced at a full hearing.
19. The third argument is that this Coroner's decision was Wednesbury unreasonable in three senses. First, it is said that her statement of reasons, which I have described, does not adequately refer to or deal with various mitigating circumstances or excuses. There was evidence on these issues that some of which is referred to in the Coroner's narrative account of the facts. It is said that she could not have considered them because they are not rehearsed in the part of the reasoning where she addresses the analysis of the facts to the legal requirements.
20. Secondly, it is said that a number of mitigating circumstances, which are identified in the claim form, are not referred to in the Coroner's statement of reasons even though they were in evidence. Thirdly that in respect of those which were, no reasonable Coroner, properly directing herself, could have reached the conclusion that she did, particularly in the light of the fact that the Crown Prosecution Service have taken a contrary view to her on two separate occasions.
21. I remind myself that because Article 8 is undoubtedly engaged, an enhanced level of scrutiny is required of this as to the high standard of proof required of the Coroner. An argument was being advanced that the Coroner did not have regard to mitigating circumstances, as relevant to the correct issue, which is whether there was a breach of duty rather than whether such breach as there was constituted gross negligence. That point seems to have evaporated and, in my judgment, rightly so.
22. I have been taken by counsel for the Coroner through the statement of reasons. He makes the point that each of the mitigating factors identified in the grounds of claim are referred to or at any rate the issue to which they refer is referred to, throughout the Coroner's decision, both in the initial part, where she sets out facts - where a large number of difficulties faced by the claimant and her colleagues are identified, as well as the fact that it was she who alerted the authorities to the fact that it may well be that something that she had done caused the untimely death of Mrs Thomas.
23. Having set them out in the findings of fact, when she came to analyse those facts against the legal requirements of unlawful killing, she reminded herself that she must look at the "seriousness" of the breach in all the circumstances, "most particularly all the circumstances in which the person whose conduct I am considering was placed."
24. Her conclusion, which she said she reached with a heavy heart, was one which was taken having taken "everything I have heard into account".
25. It seems to me that what the court is being invited to do is to apply a very fine tooth comb to the evidence given at the inquest and to the statement of reasons and to go through a minute analysis of each and every point in order to see whether she referred to it explicitly or implicitly.
26. In my judgment, looking at the summing-up and verdict document in the round, it is plain that the Coroner was not only aware of all the difficulties, and stresses to which the claimant was subject at the time, deriving from her personal experience and the experience of her colleagues operating within that part of the Trust's operation, she has identified all the mitigating features and excuses identified by the claimant in her points of claim. She has, in more than one place, indicated that she has had regard to everything which she has heard which, of course, would include all the evidence, including all those various excuses of mitigating features.
27. Having applied the correct legal test, at the correct level of intensity, she has reached a conclusion which, in my judgment, was open to a reasonable Coroner even although others, particularly the Crown Prosecution Service may have reached a different conclusion on much the same material.
28. In my judgment, the "unreasonableness" ground in each of each its manifestations is unarguable. I do not give permission for that part of the case be argued at the full hearing. In summary I give permission for the claimant to pursue her judicial review, in respect of the narrower issue concerning compliance with Rule 42. As far as the other grounds are concerned, I agree with Dobbs J who refused permission that permission should be refused.
29. MR WISE: My Lord, you will be aware that this matter has drifted somewhat in the lists and through no fault of my client's. Can I take your Lordship to page 18 of my skeleton argument. You will see in addition to seeking permission we also seeking a direction for expedition.
30. MR JUSTICE WILKIE: Yes.
31. MR WISE: The consequence is the current state of play for my lay client are obvious. She details more in her statement.
32. MR JUSTICE WILKIE: Yes. You want a direction that it should be heard before Easter.
33. MR WISE: Yes.
34. MR JUSTICE WILKIE: I am not very sure whether it is a 1 day case.
35. MR WISE: A-day-and-a-half my Lord.
36. MR JUSTICE WILKIE: On the issue upon which I have given permission?
37. MR WISE: Yes, I think possibly so.
38. MR JUSTICE WILKIE: Really. What do you say?
39. MR HOUGH: I would have agreed that it was more than a day if everything had been on launch, but on the issue on which your Lordship has granted permission, a day should be enough. I do not seek to restrict it to a shorter period because there is obviously material to get through.
40. MR WISE: It may be a day is sufficient my Lord.
41. MR JUSTICE WILKIE: The longer the estimate the later the date.
42. MR WISE: That is obviously in our minds as well, yes.
43. MR JUSTICE WILKIE: I perfectly understand why this is something that needs to be corrected if it has to be corrected as soon as possible. I am happy to direct expedition to that extent, that the application for judicial review must be heard before Easter 2011 with a time estimate of 1 day.
44. MR WISE: I am obliged for that my Lord.
45. MR JUSTICE WILKIE: It is not to be heard by a deputy.
46. MR WISE: It is not to be heard by a deputy my Lord.
47. MR JUSTICE WILKIE: That must be right.
48. MR WISE: I think so.
49. MR HOUGH: Just a couple of points. First of all, we would ask for a production of a transcript in good time for the hearing.
50. MR JUSTICE WILKIE: A transcript of what?
51. MR HOUGH: Your Lordship's today. That is in order to avoid any dispute as who--
52. MR JUSTICE WILKIE: Encompassed within the narrower and the wider.
53. MR HOUGH: Exactly. That may require expedition, I do not know what the lead time for transcripts is.
54. MR JUSTICE WILKIE: I do not know what the lead time for transcripts is.
55. MR HOUGH: Your Lordship could, to be safe, order expedition of transcript.
56. MR JUSTICE WILKIE: I will order expedition.
57. MR HOUGH: The other point -- it is never an appealing submission to the judge -- is I ask for permission that your Lordship's judgment, although on a leave stage, to be cited. As my learned friend has indicated, these are questions which are being raised in a novel form and your Lordship's decision that certain points are unarguable may be of assistance to Coroners?
58. MR JUSTICE WILKIE: If you think it wise.
59. MR HOUGH: I only ask my Lord.
60. MR WISE: I am not quite sure what my learned friend means by the "cited".
61. MR JUSTICE WILKIE: Being cited other cases.
62. MR HOUGH: Under the practice your Lordship has to give leave for a decision of this kind to be cited in other cases?
63. MR JUSTICE WILKIE: Very well, yes.