England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		15/10/2012

Mr Justice Foskett and HHJ Peter Thornton QC:

Introduction

1. This is the judgment of the Court.
2. In this case the claimant, Kent County Council, applies for judicial review of the decisions of HM Coroner for Kent (i) that Article 2 of the European Convention of Human Rights applies to the inquest into the death of Edward Barry and (ii) that the inquest should be held with a jury.
3. Permission to apply for judicial review was granted on 18 January 2012 by Mr James Goudie QC sitting as a Deputy High Court Judge.
4. The inquest has not yet been heard. Proceedings were adjourned pending the outcome of this application.

The circumstances of the death

5. Edward Barry (EB) died on 20 November 2009 in Gravesend, Kent. He was just 14 years of age, having been born on 12 October 1995.
6. He was found dead in the flat of a friend, 29-year old James Drummond, where he had stayed the night. The toxicologist, Denise Stanworth, found methadone in EB's blood:

"The presence of methadone was detected at a concentration that lies within the range associated with fatalities in individuals with little or no tolerance to the drug …."

7. There is no evidence that anything else caused or contributed to his death.
8. The day before, on 19 November, a friend of EB, Jake Devenny, had seen him drinking from two bottles of methadone. Mr Drummond admitted to the police that he was a methadone addict. He has not been charged with any offence.
9. A police report to the coroner by Detective Inspector Kaye Braybrook dated 8 February 2010 concluded:

"There is insufficient evidence to show a causal link between Edward being supplied drugs and his death. There is no evidence to suggest that Edward deliberately took his own life. Whilst a terribly complex character who was extremely upset through the break up with his girlfriend, he had made various plans for the near future. However the evidence of Jake Devenny regarding Edward consuming unmeasured quantities of methadone, combined with the results of the Post Mortem suggests that he had unwittingly taken an overdose of drugs."

The claimant's involvement with EB

10. The sad death of EB was preceded by a number of troubled months. Counsel for his family has helpfully provided a chronology of events for the nine months up to his death. It has, understandably, been prepared from the family's viewpoint and must, therefore, be treated with some caution. Nevertheless the claimant does not suggest that any of the facts set out are positively wrong. We shall, therefore, provide a brief summary of the background insofar as it is relevant for an assessment of this case largely based on that chronology.
11. The first involvement of the claimant's Social Services Department (the 'SSD') appears to have been in February 2009, some nine months before EB's death, when his parents sought support. At the time he was not yet 13½ years old. It is clear from that time on that he was having difficulties at home, sometimes staying away. He had problems at school despite having been previously a model student and high achiever. He was confused about his sexuality (reporting relationships with male and female) and in due course he started abusing drink and drugs. He claimed in March that he had made a suicide attempt and made other claims of physical abuse.
12. The downward spiral over the months involved a number of arrests for shoplifting, being taken home from the park by the police drunk or drugged, associating with street drinkers and drug takers and increasingly being absent from home overnight, occasionally sleeping rough.
13. His parents contacted the SSD requesting alternative accommodation for him. They expressed concern in writing about his absence from home and his drug-taking. His school expressed concern to the claimant about child protection issues, self-harm and depression on his part.
14. In the final month of his life the claimant was informed that he was taking drugs, associating with a well-known addict and sleeping away from home. On the day of his death his parents called the claimant asking for urgent action because he was at risk and the school e-mailed the claimant stating that urgent action was required.
15. The SSD had made an initial assessment followed by a core assessment in February and March 2009. Dr Jeanette Phillips, a consultant psychiatrist, wrote to the claimant indicating that he was at considerable risk, but at that stage the claimant said that the responsibility for him lay with his parents. Three months later the parents sought a multi-agency intervention, but the claimant said the file was closed. In July Dr Phillips recommended a secure placement for him and he was assessed by the SSD as being a "child in need" within the meaning of section 17 of the Children Act 1989 (see paragraph 50 below). The claimant tried to find a 7-day 'respite' foster accommodation under section 20, which is what the parents wanted, but none was available. A further request by the family for the provision for him of separate accommodation was refused. In November the claimant advised the parents to take parenting classes.
16. We repeat that much of this information comes from the family's side and that must be borne clearly in mind. However, after EB's death, a Serious Case Review ('SCR') was commissioned by the Independent Chair of the Local Safeguarding Children Board ('LSCB'). It was undertaken by Ms Carol Gallagher, an independent social work consultant. Her full report has not been disclosed, but an Executive Summary has been disclosed for the purposes of the inquest and the judicial review proceedings (although not made public).
17. Since it has not been made public, we restrict our observations to saying that in the Executive Summary, which was approved by the LSCB on 9 September 2010, Ms Gallagher set out a large number of shortcomings on the part of the claimant, suggesting that that there were 'many missed opportunities'. Her conclusion was expressed as follows:

"It was predictable by July 2009 that [EB]'s behaviour and the risks associated with this would continue to escalate. His drug taking further increased his vulnerability. It cannot be concluded that a different approach to the practice issues highlighted would have prevented [EB]'s death but there is a possibility that there may have been a different outcome."

18. In the light of the SCR Report the claimant apologised unreservedly to the family and told them what steps they would take to remedy their practices for the future.
19. For the purposes of this judicial review application, Mr Alan Payne, Counsel for the claimant, did not challenge the findings in the SCR that the claimant (a) should have given greater consideration to providing EB with respite foster care, (b) took an overly optimistic view of the parents ability to assume sufficient responsibility for his welfare, (c) failed to refer him to a drug and alcohol counsellor with the Adolescent Resource Centre, a local authority service supporting adolescents, or to Substance Misuse, an independent agency, and (d) failed to put in place a Child Protection Plan. The position to be taken at the renewed inquest is reserved.

The inquest proceedings

20. The inquest was opened and adjourned until the SCR Report was concluded.
21. On 8 December 2010 solicitors for the family asked the coroner in writing to provide 'a narrative verdict'. By letter dated 18 January 2011 they submitted that they considered Article 2 to be engaged.
22. A pre-inquest hearing on 23 May 2011 was adjourned and a further pre-inquest review took place on 30 June 2011 at which the claimant and the family made their submissions about Article 2. On 5 September 2011 the coroner ruled that Article 2 applied to the inquest. He ordered that the inquest should take place with a jury and gave further directions, including which witnesses were to be called and which witness statements were to be read.
23. On 30 September 2011 the coroner adjourned the inquest for a full hearing between 16 November and 6 December.
24. The claimant lodged this application on 14 October 2011, Burnett J gave directions on 25 October 2011 and, as we have indicated, permission to apply for judicial review was granted on 18 January 2012.

The submissions

25. In summary, Mr Payne submitted that the coroner was wrong to hold that this should be an Article 2, Middleton type, inquest (see further at paragraphs 35 and 39 below). There was, he submitted, no breach of the substantive obligation under Article 2 of the European Convention on Human Rights because the statutory systems for children in need of care were in place and wholly adequate. There was no systemic failure which could lead to an arguable breach.
26. He further submitted that there was no operational obligation because EB was not sufficiently under the state's control. Nor was there any real or immediate risk to life of which the claimant knew or ought to have known. He accepts that it is arguable that there was some risk of potential harm to EB, but that risk did not extend to a "real and immediate risk to life" (see further at paragraph 40 below).
27. Even if Article 2 was potentially engaged, he submitted that it did not apply because the claimant had done all that it could by way of prompt and effective process to remedy its mistakes.
28. He submits further that the coroner's decision should be quashed because the reasons he gave for making the Article 2 decision were wholly inadequate on the basis, it is suggested, that the reasons given informed the claimant that they had lost the argument but not why they had lost.
29. He challenges also the decision to order a jury inquest.
30. Some members of the family were present at the hearing before us, but they were not represented by counsel. For that reason we put a number of points to Mr Payne which the family might have taken if represented and we are grateful to Mr Payne for the helpful way in which he assisted the Court in this respect.
31. We did, however, have the benefit of helpful written submissions on behalf of the family in the form of the Skeleton Argument dated 25 June 2011, which was put before the coroner, and in the later Supplemental Submissions dated 3 July 2012, both drafted by Mr Brian Cummins of Counsel.
32. We do not consider that the family was disadvantaged in any way by not taking part directly in the hearing before us.
33. The defendant coroner was not represented at the hearing. The coroner did however respond briefly in writing on 1 November 2011 in response to the order of Burnett J.
34. We will turn to the individual grounds of challenge.

(1) The Article 2 issue

35. As we have indicated, the claimant submits that Article 2 was not engaged either as a general duty (the 'substantive obligation') or as an operational duty and, accordingly, the coroner was wrong to rule that there should be an Article 2 Middleton inquest: R (Middleton) v West Somerset Coroner [2004] 2 AC 182. The inquest, it is submitted, should be a narrower, Jamieson type of inquest: R v Coroner for North Humberside and Scunthorpe, Ex parte Jamieson [1995] QB 1.
36. Article 2(1) of the European Convention on Human Rights provides that everyone's "right to life shall be protected by law." As already partly foreshadowed above (see paragraphs 25 and 26), the relevant case law on Article 2, European and domestic, recognises three possible duties or obligations, often characterised as (i) the general duty, (ii) the procedural duty and (iii) the operational duty.
37. The general duty has been described as comprising two parts, imposing on member states a negative duty and a positive duty described in Middleton at para. 2 as follows:

"… not to take life without justification and also to establish a framework of laws, precautions, procedures and means of enforcement which will, to the greatest extent reasonably practicable, protect life"

38. The general duty to protect life in this way is, of course, in place at all times. It is a positive duty to protect life: see, for example, Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2 at para. 93. It is only when there is evidence of an arguable or prima facie breach that the procedural duty is triggered, imposing on the state a duty to investigate: McCann v United Kingdom (1995) 21 EHRR 97; Jordan v United Kingdom 37 EHRR 52. This duty was described in Middleton (at para.3) as "a procedural obligation to initiate an effective public investigation by an independent official body". In domestic law the state's procedural duty to investigate under Article 2 is discharged either by "full criminal proceedings" (a full trial) or when there are none by an inquest or some other sufficient inquiry: Middleton, at paras. 20 and 47. Where an inquest is held in order to discharge this procedural duty it must take the form of what is now commonly known as a Middleton (Article 2) inquest.
39. The distinction between the two types of inquest can be summarised by saying that in a Jamieson inquest the question "how … the deceased came by his death" (section 11(5)(b) of the Coroners Act 1988) must be interpreted as meaning "by what means" whereas in a Middleton inquest "how" means "by what means and in what circumstances": see Middleton at para. 35.
40. The general duty as outlined has, however, been modified by the additional layer of the operational duty placed upon the state to protect the life of an individual in its care: see, for example, Mitchell v Glasgow City Council [2009] UKHL 11 at paras. 65-66.
41. The operational duty is expressed in this way: where there is an allegation that the authorities have violated their positive general duty to protect the right to life, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk: Osman v United Kingdom (2000) 29 EHRR 245; Mitchell v Glasgow City Council above; Watts v United Kingdom (2010) 51 EHRR 66 at paras. 82-83; Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2.

This case

42. We confine our decision, of course, to the specific circumstances of the case.
43. It is of importance to remember that, in the context of the operational duty, it has been said that the test of "real and immediate risk to life" is "a stringent one" (per Lord Brown of Eaton-under-Heywood in Van Colle v Chief Constable of the Hertfordshire Police [2009] 1 AC 225, para.115), "with a very high threshold" (per Lord Hope of Craighead at para.69) and that it provides a "high hurdle" (per Lord Carswell in Re Officer L [2007] 1 WLR 2135). The stringent nature of the test is demonstrated by the circumstances of Van Colle: no breach was found in the situation where a defendant about to be tried for theft murdered the chief prosecution witness despite the police having been aware of a series of threats and intimidation by the defendant towards him.
44. There is, in our judgment, no doubt that the instant case, involving a vulnerable child in the circumstances we have outlined, enters into the potential territory of operational duty. It follows that the question to be considered in the first place, applying the test set out in paragraph 41 above, is whether there was a real and immediate risk to the life of EB in the period before his death.
45. There is no doubt that the tragic outcome of death came as a shocking surprise. It was undoubtedly true that in the nine months that the claimant knew about EB it knew that his problems had become more serious over that period. There was, as we have said, a downward spiral. There was undoubtedly a need for some action and it could be said that the claimant failed him in this regard: see paragraph 17 above. But even if the opportunities had been taken by the claimant, there is no certainty or even likelihood that EB's death would have been avoided as the SCR concluded.
46. EB was undoubtedly vulnerable and at risk. But that risk, viewed objectively, was not a risk to life, certainly not a real and immediate risk to life. It was a risk of harm, but that should not, with all the wisdom of hindsight, be equated with a risk to life. Ms Gallagher identified that risk of harm in the Executive Summary of her Report, but she did not identify a risk to life. She identified the risks which he faced from his behaviour, but while she identified the risks as involving possible "significant harm", at no stage did she say that the risk should have been assessed as more serious.
47. It follows, therefore, in our judgment, that there was no sufficient evidence of "a real and immediate risk to life". Whilst EB told the claimant in March 2009 that he had made a suicide attempt, that was nine months before his death and there is no evidence that he took his life in the end: DI Craybrook's report to the coroner concluded otherwise (see paragraph 8 above). None of the incidents in the few months before EB's death could be described as obviously life-threatening.
48. Although the coroner, in the Acknowledgment of Service in these proceedings, averred that the claimant had actual or constructive knowledge of a real and immediate risk to EB's life, he did not say then, or indeed at the time of his decision, what evidence he relied upon to support that conclusion. We do not consider that there was evidence to justify such a view.
49. Tragic, of course, as this case was, there was, in our judgment, no operational duty in place at the time of EB's death and, accordingly, no scope for an Article 2 inquest. The claimant did not have parental responsibility for EB and he was not 'in care' in the sense that no proceedings had been commenced under section 31 of the Children Act 1989. He was not therefore living within the control or under the direct responsibility of the local authority. If there was no operational duty in place, there could be no breach of it. If there was no breach of any operational duty (the extra layer to the general duty) there could have been no breach of the general duty. In the absence of any breach of duty it follows that no procedural duty arises. There is, therefore, no burden upon the state to inquire under that duty by way of a Middleton inquest.
50. As we have already observed (see paragraph 15 above), the claimant, of course, had some measure of responsibility towards EB because he was a vulnerable child and assessed as being "in need" for the purposes of section 17 of the Children Act 1989 which provides as follows:

"It shall be the general duty of every local authority …

(a) to safeguard and promote the welfare of children within their area who are in need; and

(b) so far as is consistent with that duty, to promote the upbringing of such children by their families,

by providing a range and level of services appropriate to those children's needs."

51. However, to put that in context, we were told that some five or six thousand children within the jurisdiction of the claimant are assessed as "in need" under section 17 at any one time. It would not be proportionate to require a local authority to exercise sufficient control over all these children so that an operational duty is exercised in every case. As was observed in Osman, the operational duty should be interpreted "in a way which does not impose an impossible or disproportionate burden on the authorities", particularly "in terms of priorities and resources" (para. 116 and see also Rabone at para. 104).
52. For the reasons we have given, we do not consider that the evidence justifies the conclusion that any general duty or operational duty was arguably breached in this case and, accordingly, it was wrong for the coroner to decide that the inquest required to be conducted as an Article 2 inquest.

(2) Lack of reasons

53. In the light of our conclusion under (1) above, we do not need to consider the reasons challenge in any detail. We think, with respect, that the coroner's reasons could have been fuller, but it is unlikely that we would have quashed his decision on this ground alone.
54. It is, however, right to acknowledge that in his decision on 5 September 2011 the coroner indicates that he (a) took note of all relevant submissions, written and oral, (b) considered the various reports into the claimant's failings, (c) considered the case law to which he had been referred particularly in relation to Article 2, (d) refreshed his memory about the 30 June 2011 pre-inquest hearing when legal submissions had been made to him, (e) considered the facts relating to EB's death, (f) took note that there would be no criminal or civil proceedings (although, for the record, it is to be noted that civil proceedings have now been issued), (g) came to the conclusion in the light of the claimant's failings set out in the reports that this should be an Article 2 Middleton inquest, which was necessary for 'effective public investigation by the inquest to satisfy the state's obligation', and (h) recognised that although there had been a number of inquiries an inquest of the type described was also necessary in view of his Rule 43 responsibilities. Finally, he explained his reason for holding the inquest with a jury.
55. The coroner therefore covered most of the key points. Resolving difficult issues arising from the implications of Article 2, particularly where the law is evolving, is not a straightforward process and a lengthy ruling is not necessarily required. The coroner did state at (g) what in effect his decision was on the general duty under Article 2, but he did not address in addition the operational duty which had been argued before him.
56. The essential point, as we have already indicated, is that a coroner in this situation should give sufficient reasons for the person losing the argument to know not only that he has lost but why.

(3) The decision to have a jury

57. Finally, the claimant submits that the coroner erred in deciding to hold the inquest with a jury. In his written ruling of 5 September 2011 the coroner, relying on section 8(3)(d) of the Coroners Act 1988 and quoting from it, concluded that "there could be reason to suspect the death occurred in circumstances the continuance or possible recurrence of which is prejudicial to the health and safety of the public or any section of the public".
58. This is not an argument that was pursued with much vigour. In Mr Payne's Skeleton Argument of 20 July 2012 he states that the coroner's decision to hold the inquest with a jury is challenged, but nowhere is that statement argued or developed. In the Skeleton Argument of 23 July 2011 which was before the coroner the claimant submitted that the inquest should be heard without a jury. There were "no grounds for having a jury", it was submitted, but no more was said.
59. In our judgment, the coroner was entitled to rely upon section 8(3)(d) of the Coroners Act 1988. It was a matter within his discretion and there is nothing to suggest that he exercised it unreasonably. He was entitled to conclude, even for the purposes of a Jamieson inquest, that it was his public duty to investigate the death so as to avoid the recurrence of the tragic and troubling death of a vulnerable 14-year old who was away from home. We cannot fault that conclusion.
60. Both Burnett J in giving directions on 25 October 2011 and Mr James Goudie QC in granting permission on 18 January 2012 suggested that the coroner was right to hold the inquest with a jury. We respectfully agree.

(4) Conclusions

61. For the reasons we have given, the inquest should not be an Article 2 Middleton inquest.
62. We therefore quash the decision of the coroner on 5 September 2011 that the inquest should be in that form.
63. The coroner's decision that there should be a jury stands.
64. We see no good reason why a different coroner should take over the inquest. The claimant submitted that his failure to give sufficient reasons about Article 2 was enough to disqualify him. We do not agree. The coroner is familiar with the history of the case, the facts and what the witnesses say. He will follow our ruling and apply it to the future process. In our judgment, he should proceed to hear the inquest and as soon as is reasonably practicable.
65. Before the final inquest hearing doubtless he will hold a further pre-inquest hearing when submissions can be made in the light of our decision as to the issues at and scope of the inquest, including the witnesses to be called and those whose statements are to be read. The extent to which the narrower form of inquest that will be required in the light of our decision would differ materially from a Middleton type inquest in this case is, perhaps, debateable. Mr Payne accepted in the course of argument that ultimately there may not be all that much difference in the scope of the inquest and which witnesses are called (albeit that he indicated that the focus of their evidence is likely to differ by reason of it being a Jamieson inquest). He conceded that, bearing in mind the coroner's Rule 43 responsibilities (which the coroner had referred to), the coroner would wish to hear evidence from the claimant local authority and other agencies. He accepted that there had been little public scrutiny, bearing in mind that the SCR report had not been made public. However, for our part and on the information available to us, we see no reason why Ms Gallagher, the writer of the SCR Report, should be called as a witness. Her Executive Summary is full and speaks for itself. But that will all be a matter for the coroner and it is a matter for his judgment applying the law and practice appropriate to a Jamieson inquest which requires the relevant facts to be "fully, fairly and fearlessly investigated".