QUEENS BENCH DIVISION
Bull Street, Birmingham
B e f o r e :
| THE QUEEN on the application of
(1) ANDREW PALMER
(2) MARGARET PALMER
- and -
HM CORONER FOR THE COUNTY OF WORCESTERSHIRE
WORCESTERSHIRE COUNTY COUNCIL
THE CHIEF CONSTABLE OF
WEST MERCIA POLICE
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The Defendant did not appear.
Jenni Richards QC (instructed by Weightmans LLP) for the First Interested Party.
Samantha Leek (instructed by the Force Soclicitor) for the Second Interested Party.
Hearing dates: 11-12 May 2011
Crown Copyright ©
Mr Justice Hickinbottom:
The Factual Background
"... [F]or me the civil claim would be the final step in making sure that those who have failed are held responsible for their failings. I see it as part of the process of them accepting their failings and making sure they do things differently in the future."
"Article 2 imposes two distinct but complementary obligations on the state.... [T]he first is a substantive obligation not intentionally to take life, and also to take reasonable preventative measures to protect an individual whose life is at risk.... The second is an adjectival procedural obligation to investigate deaths where arguably there has been a breach of the substantive obligation."
I shall refer to those two obligations as "the substantive obligation" and "the procedural obligation" respectively.
"... to establish a framework of laws, precautions, procedures and means of enforcement which will, to the greatest extent reasonably practicable, protect life" (R (Middleton) v West Somerset Coroner  UKHL 10;  2 AC 182 at  per Lord Bingham of Cornhill; see also Savage v South Essex NHS Foundation Trust  UKHL 74;  1 AC 681 at  per Lord Rodger of Earlsferry).
"[A] state authority is in breach of the operational obligation if (a) the authority knew or ought to have known of a real and immediate risk to the life of the individual concerned and (b) the authority failed to do all that could reasonably be expected to avoid that risk."
"After the conclusion of the relevant criminal proceedings... , the coroner may... resume the adjourned inquest if in his opinion there is sufficient cause to do so."
That on its face confers a wide discretion upon the coroner; but, where an inquest is necessary for state compliance with its investigatory obligations under article 2, then the coroner must resume the inquest.
"(a) the authorities must act of their own motion;
(b) the investigation must be independent;
(c) the investigation must be effective in the sense that it must be conducted in a manner that does not undermine its ability to reach the relevant facts;
(d) the investigation must be reasonably prompt;
(e) there must be a 'sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory; the degree of public scrutiny required may well vary from case to case'....;
(f) there must be involvement of the next of kin 'to the extent necessary to safeguard his or her legitimate interests'....".
(i) The General Duty Issue: Is it arguable that the Police Force and/or the Council violated Adrian's article 2 rights by failing to have adequate systems in place for the protection of life, and in particular for the protection of the lives of vulnerable individuals in his position?
(ii) The Operational Duty Issue: Is it arguable that the Police Force and/or the Council violated Adrian's article 2 rights by failing to take reasonable steps to protect him from a real and immediate risk to life?
(iii) The Scope of Investigations Issue: If it is arguable that the Police Force and/or the Council have violated Adrian's article 2 rights, are the investigations and proceedings conducted to date sufficient to satisfy the state's investigative obligation under article 2?
The General Duty Issue: The Council
(i) The Council's obligation to Adrian was primarily one of support. The primary duty to protect him from a possibly fatal assault fell upon the Police Force (see paragraph 66 above).
(ii) I am prepared to accept for the purposes of this claim, that a social services authority undertakes functions that engage article 2 and which require it to "take general measures to employ and train people..." to ensure that the lives of those who claim welfare assistance from them are protected (the quote coming from the speech of Lord Rodger in Mitchell at ). However, the Council employed qualified social workers, who were subject to the General Social Care Council. Whatever individual shortcomings there may have been in specific actions of individual social workers (and the Stockwell Report identified some), there is no evidence that there was any systemic failure in the employment and training of staff.
(iii) I am also prepared to accept for the purposes of this claim (and, I stress, for those purposes only) that a social services authority undertakes functions which require it to "adopt appropriate systems of work" generally protective of life of those who claim welfare assistance from them (see, again, Mitchell at ). However, as I have outlined, there was a scheme in place, comprising the statutory provisions (which required assessment of need, and provision of services to satisfy identified needs), directions from the Secretary of State (giving guidance as to the application of eligibility criteria), and guidance from him as to multi-authority liaison in respect of vulnerable adults who have been or might have been abused. That last national guidance was supplemented by the Council's own, comprehensive policy and procedure document. Again, it might be that the scheme was not applied to Adrian as well as it might have been; but there is no evidence that this was a systemic failure. The evidence is that the risk to Adrian from third parties whom he might encounter on the street at night was addressed in the March 2006 care plan. The Stockwell Report criticises the failure of the Council to review Adrian's care needs after the CPS decision not to prosecute Murphy for rape, and for the less than perfect working level procedures for the Council and the police to work together in this case (that led to the recommendation for a review of those procedures); but that falls very far short of anything like a systemic failure. It must be also remembered that the statutory investigatory procedure that led to the Stockwell Report and its recommendations is part of the system under consideration. In my view, this is not anywhere near a case in which a failure to implement might be so gross as to amount to a systemic failure.
(iv) I reject the suggestion (insofar as it was made by Mr Westgate) that the Council breached article 2 by failing to have a specific service for those with Asperger's Syndrome. It was required to have systems robust enough to protect the lives of all welfare applicants; but the manner in which it provided for the infinite variety of vulnerabilities it might encounter was a matter for the Council. As I understand it, since Adrian's death, the Council have had a greater focus and sensitivity to the disabilities and needs of those with Asperger's Syndrome; but it of course does not follow that it was in breach of article 2 by not having a more specific system before. It would impose an impossible burden on authorities to require them to have specific systems for each medical condition that results in disability and relevant need.
(v) Mr Westgate sought to gain support for his submission that the Council arguably breached its obligation to have systems in place in the European Court of Human Rights case, Opuz v Turkey (2010) 50 EHRR 28, which concerned the prosecution of offences of domestic violence in Turkey. The court held that there was a breach of article 2 because the legislative framework in force in Turkey (particularly the provision that offences could not be pursued on the authorities' own motion unless they resulted in sickness or unfitness for work of 10 days), fell short of the requirement for an effective system for the prosecution and punishment of offenders of violence. But that case is very different from the claim before me, where it is not contended that the legislative framework is deficient, but only that it was not properly or fully implemented. Opuz provides no significant support for the submission.
(vi) Nor do I consider that Mr Westgate gains any support for his submission from the fact that, at the relevant time, Adrian was the subject of a supervision order, made under section 5 of the Criminal Procedure (Insanity) Act 1964 after he was found to have taken a fire engine, but to have been unfit to plead. Such an order is no-coercive. There is no sanction for breach. It is entirely supportive, with a view to preventing a recurrence of the offending behaviour. It does not impose any degree of state control over the subject of the order, nor does give rise to (nor support in any way) an article 2 general duty.
The General Duty Issue: The Police Force
The Operational Duty Issue: The Police Force
(i) There was evidence that Murphy had a propensity to commit sexual offences, and to harass actual or potential victims of such offences. There were rumours in Tenbury that he had raped another man: Murphy claimed that the sex between them had been consensual, but in his interview he denied any sexual relationship between them at all. Murphy left a threatening message after the young man's mother tried to stop them seeing one another, that led to a harassment warning being issued to Murphy.
(ii) Murphy was known to have a propensity to violence. There was evidence that he got into fights frequently, with police involvement in some.
(iii) Adrian complained that he had been raped by Murphy, and had been threatened by Murphy at the time of the rape not to talk about it. The Council took the view that it was likely the report of the rape was true, and told the police as much.
(iv) On at least one occasion other than the rape, Murphy had been violent towards Adrian, as Murphy accepted in his interview.
(v) Before the decision was taken by the CPS not to prosecute Murphy for the rape of Adrian, Ms Marsden threatened (and once physically assaulted) Adrian. Once she threatened to kill Adrian. Murphy was almost certainly aware of those threats, and probably instigated or encouraged them.
(vi) After the decision was taken not to prosecute, someone (very probably Murphy) was responsible for a series of threats, including death threats, from 9 to 23 March 2006.
(vii) It was known that Adrian had Asperger's Syndrome, and was likely to go into Tenbury at night, at times drunk. It was likely that he would, at some stage, encounter Murphy there. Because of his condition, Adrian would find it difficult to deal with a confrontation with Murphy, and might behave towards him in a provocative way. Any meeting with Murphy was therefore fraught with danger, and would place Adrian's life at risk. Because of the likelihood of such a meeting at some stage, that risk to Adrian's life was both real and immediate. An "immediate risk" does not mean that fatal violence has to be imminent: there can be an "immediate risk" to life even if the potential aggressor may have to wait for an appropriate opportunity to do the victim harm (R (DF) v Norfolk County Council  EWHC 1738 (Admin) at  per Crane J). There was such a risk (Mr Westgate submitted) from the end of January 2006 (when, to Murphy's knowledge, Adrian made the allegation of rape) until Adrian's death.
(i) What amounts to "a real and immediate risk" is fact specific. As a matter of law, the risk merely has to be real not, of course, a probability (Rabone at ); but nevertheless to show a "real and immediate risk to life" has been described as a "very high threshold" (Van Colle v Chief Constable of the Hertfordshire Police  UKHL 50;  1 AC 225 at  per Lord Hope), and a "stiff hurdle" to overcome (Rabone at - per Jackson LJ, in summary of the description of the test in Savage and Van Colle).
(ii) Of course, where there is a risk of serious violence, then it may be easy reasonably to foresee a risk to life; but the relevant risk of which the authority has to have actual or constructive knowledge is to the individual's life, not merely of some harm.
(iii) In determining whether there was such a risk, guard must be taken against hindsight: what matters is what the authorities knew or ought to have known at the time (Osman at paragraph 116; and Van Colle at  per Lord Bingham).
(i) Murphy may have had some propensity to violence, but neither his criminal record nor any other information about him which the authorities knew or ought to have known was suggestive of violence with a potentially fatal outcome. It is unclear what his record was in some of the offences in which he was implicated it appears he was the victim not the perpetrator but none appears to have been serious. The harm in none exceeded actual bodily harm. There were relatively few recorded incidents of violence involving Murphy.
(ii) The actual violence by Murphy on Adrian was limited to violence in his (Murphy's) home. In addition to the alleged rape, the only violence was minor, and at a time when Adrian allegedly refused to leave Murphy's house. Ms Marsden threw things at Adrian and pushed him on the street; but that violence was again minor and happened on only one occasion. That was the only actual violence that Adrian suffered on the street. It was the only actual violence he suffered following his rape allegation. After the rape allegation, it was unlikely that Adrian would go to and/or be admitted to Murphy's house. There was nothing in this history to suggest that Murphy might be seriously violent towards Adrian on the street, if they met.
(iii) In relation to the other young man Murphy was rumoured to have raped, that man's mother reported it to the police but no retribution was exacted upon her or her son. Murphy was issued with a harassment warning in December 2004, and does not appear to have bothered the young man or his family after that. There was nothing here to suggest that Murphy might react to Adrian's allegation of rape with violence that could be serious or fatal.
(iv) Until 23 March 2006, Adrian was the subject of threats, which were very probably from or instigated by Murphy. In some of these, there was a threat to kill Adrian. However, the number of threats was small, until 9 March they were from Ms Marsden, and there were no threats at all for the two months from 23 March to Adrian's death at the end of May 2006. Adrian had threatened to "kill" Murphy, and at least one other man (apparently unconnected to Murphy) had threatened to "kill" Adrian on the evening he took the fire engine (see paragraph 12 above). Young men tend to utter such threats, without necessarily expressing an actual intention to kill. The earlier threats had not been followed up with any violence towards Adrian (save for the minor incident involving Ms Marsden). Taken as a whole, there was nothing in these threats that suggested or ought to have suggested to either the Police Force or the Council that there was a real and immediate risk to Adrian's life, particularly by mid-May 2006.
(v) There was no evidence of any steps by Murphy preparatory to inflicting any harm on Adrian, such as following or observing him. On the contrary, despite the threats, Murphy appeared not to want anything to do with him. Nothing in the circumstances of Adrian's death is indicative that Murphy intended or wished to meet Adrian that evening, or that he intended or wished to kill him.
The Operational Duty Issue: The Council
"It is clear that ECHR article 2 does not impose upon the state an operational obligation towards all persons who are at "real and immediate risk" of death.... In addition to the "real and immediate risk" of death, there must be some additional element before the state authorities come under the operational obligation. Examples of the additional element are (a) involvement of the police with a criminal who is liable to kill the individual concerned or (b) the fact that the individual concerned is detained by the state."
"[L]ocal authorities... do not have, and are not meant to have, the resources, staff or powers to take effective steps to prevent such crimes. On the contrary, they are resourced on the basis that they are... operating within a society where the responsibility for preventing violent crime lies with the police, who, in their turn, are given the resources, training and powers to do the job. Costly duplication of the work of the police is neither necessary nor indeed desirable." (See also his comments at  to similar effect).
The Scope of Investigation Issue
(i) The facts of the death have been ascertained, as fully as likely to be possible.
(ii) The person with direct responsibility for the loss of life (Murphy) has been identified, prosecuted, convicted and punished.
(iii) Systemic and individual failings on the part of the Police Force and the Council have been identified, and steps taken to address both and prevent a recurrence of such failings.