QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
THE HON. MRS JUSTICE NICOLA DAVIES DBE
| ANN POWER
- and –
|HER MAJESTY'S SENIOR CORONER FOR INNER NORTH LONDON
- and –
|(1) THE COMMISSIONER OF POLICE
OF THE METROPOLIS
(2) STEPHEN COLLIER
Mr Paul Stagg (instructed by Directorate of Legal Service Metropolitan Police Service) for the First Interested Party
No representation or appearance by the Defendant or Second Interested Party
Hearing date: 21 November 2017
Crown Copyright ©
Mrs Justice Nicola Davies:
i) That the inquest touching upon the death of her husband, Mr Onese Power, be quashed; and
ii) A direction that a fresh inquest be held.
A Fiat was granted by the Attorney General's office on 7 February 2017 authorising the claimant to make the application.
i) Irregularity of proceedings
The claimant did not receive disclosure of witness statements prior to the inquest despite a request for the same. Neither the claimant nor the jury were aware that PC Collier and PC Heatley had given identical statements five days following the fatal incident. A relevant witness was unable to attend due to ill health;
ii) Insufficiency of inquiry
There were failures:
a) to test the police vehicle at the speed at which it was travelling at the time of death in order to replicate the tyre marks found at the scene;
b) to forensically examine the damage to the police vehicle which could have been caused by contact with the motorcycle driven by the deceased.
iii) New evidence has become available which was not known at the time of the original inquest.
"13 Order to hold investigation.
(1) This section applies where, on an application by or under the authority of the Attorney-General, the High Court is satisfied as respects a coroner ("the coroner concerned") either—
… (b) where an inquest or an investigation has been held by him, that (whether by reason of fraud, rejection of evidence, irregularity of proceedings, insufficiency of inquiry, the discovery of new facts or evidence or otherwise) it is necessary or desirable in the interests of justice that an investigation (or as the case may by, another investigation) should be held."
"It is the duty of the coroner as the public official responsible for the conduct of inquests, whether he is sitting with a jury or without, to ensure that the relevant facts are fully, fairly and fearlessly investigated. He is bound to recognise the acute public concern rightly aroused where deaths occur in custody. He must ensure that the relevant facts are exposed to public scrutiny, particularly if there is evidence of foul play, abuse or inhumanity. He fails in his duty if his investigation is superficial, slipshod or perfunctory. But the responsibility is his. He must set the bounds of the inquiry. He must rule on the procedure to be followed. His decisions, like those of any other judicial officer, must be respected unless and until they are varied or overruled."
"54. The power contained in section 13(1)(b) is stated in very broad terms. The necessity or desirability of another inquest may arise by reason of one of the listed matters 'or otherwise'. Notwithstanding the width of the statutory words, its exercise by courts shows that the factors of central importance are an assessment of the possibility (as opposed to the probability) of a different verdict, the number of shortcomings in the original inquest, and the need to investigate matters raised by new evidence which had not been investigated at the inquest: see Re Rapier  1 QB 26, 34-35, 37H-38A, 39 per Woolf LJ and Simon Brown J; R v HM Coroner, Lincoln, ex p Hay 19 February 1987; R v HM Coroner, Coventry, ex p O'Reilly Times Law Reports 3 April 1996; and Re v Assistant Deputy Coroner for the Northern District of London ex. p Bloom  EWHC 3071 (Admin). …
55. ... In cases in which the court is satisfied that a different verdict is not possible or doubts that it would be, the fact that the deceased died in custody may be 'a compelling additional factor' (R v West Sussex Coroner, ex p Homberg (1994) 158 JP 357, per Simon Brown LJ Transcript 26 January 1994, page 37) in concluding that a further inquest is necessary or desirable in the interests of justice. This is because of the need (see paragraph  above) in such cases for an investigatory regime which will not only expose past violations of obligations under Article 2 but also promote measures to prevent or minimise the risk of future violations. The lapse of time since the death is a factor that has generally been seen as a factor against ordering a further inquest (see ex p Homberg and Re Tabarn 20 January 1998 (Div Court), per Simon Brown LJ Transcript page 10) but this is not always so: see Nicholls v HM Coroner for the City of Liverpool  EWHC (Admin) 922, paragraphs 49-50, 59 per Sullivan J. In R v West Sussex Coroner ex p Edwards  156 JP 186, 190 it was stated that a new inquest may be ordered even if there is a high probability that the verdict would be the same."
"The single question is whether the interests of justice make a further inquest either necessary or desirable. The interests of justice, as they arise in the coronial process, are undefined, but, dealing with it broadly, it seems to us elementary that the emergence of fresh evidence which may reasonably lead to the conclusion that the substantial truth about how an individual met his death was not revealed at the first inquest, will normally make it both desirable and necessary in the interests of justice for a fresh inquest to be ordered. The decision is not based on problems with process, unless the process adopted at the original inquest has caused justice to be diverted or for the inquiry to be insufficient. What is more, it is not a pre-condition to an order for a further inquest that this court should anticipate that a different verdict to the one already reached will be returned. If a different verdict is likely, then the interests of justice will make it necessary for a fresh inquest to be ordered, but even when significant fresh evidence may serve to confirm the correctness of the earlier verdict, it may sometimes nevertheless be desirable for the full extent of the evidence which tends to confirm the correctness of the verdict to be publicly revealed."
Ground One: Irregularity of proceedings
"…I have to inform you that I have been instructed that the statements cannot be released to you. Apparently, there are legal reasons for this decision which relate to the position of a coroner's inquest within the British Judicial System.
All evidence which the coroner considers necessary to establish the cause of your husband's death will be heard in public at his court and consequently you will be made aware of the circumstances involved. Should he/she decide that some evidence should be read you will be supplied with a copy of the evidence of the hearing.
I am sorry to have to disappoint you. May I suggest that it might be appropriate for you to seek legal advice about representation at the inquest…"
Witness Adele McDine
"Shortly after they passed me I heard the sound of squealing brakes and the dull thud of a fast moving vehicle hitting a body. I looked back to see what had happened, the first police car had stopped and I saw a police officer get out and lift a man from the road. The other police vehicles were having to brake very sharply to avoid hitting the first police car. I thought they were all going so quickly there was going to be a multiple accident…"
In her second statement Ms McDine gives further detail of the matters contained in the first statement.
Evidence from three witnesses
Ground Two: Insufficiency of inquiry.
A failure to conduct forensic tests on the skid marks and the damage to the police vehicle.
i) Mark one – white scuff marks 87-90 cm from the ground on the edge of the offside door mirror;
ii) Mark two – a long black rubbery mark on the front offside door 76-81 cm from the ground and travelling 40 cm from the rear of the door mirror;
iii) Mark three – damage to the side and front of the bumper at the front offside corner, 43 cm from the ground.
PC Lamb stated that Mark two was a typical scuffmark from a motorcycle handlebar grip but discounted it as having been caused by the motorcycle of the deceased as the vehicle did not have grips made of rubber, they were metal. He stated that the police vehicle had been in contact previously but by another motorcycle. He believed that the contact, at any sort of speed, would cause the motorcycle rider to lose control. No forensic tests had been carried out to identify if the marks were or could have been made by contact with the deceased's motorcycle. No photographs were taken of the marks. Given the claimant's contention that there was contact between the two vehicles, she submits that forensic tests should have been performed to ascertain if the marks represented contact between the two vehicles.
Ground Three: New evidence.
"…positioned himself near to the crown of the road with a view to smoothing out the bend… It would appear that PC Collier has attempted to overtake on the nearside. Because of the presence of the Audi car, that overtaking necessitated PC Collier going extremely close to the motorcycle.
Because of the Police car right alongside, Mr Power was unable to lean his motorcycle in order to take the bend. When he attempted to lean his motorcycle, a contact occurred between the handlebar and the door of the Police car. Unable to lean over and negotiate the bend, Mr Power applied heavy braking, to mitigate what was by now an inevitable spill. However he ran wide, mounted the kerb and struck the bollard.
Meanwhile the police car, to the nearside of the motorcycle, was also braking. At the last, PC Collier brought his car to a stop by a combination of swerving and braking. No marks were left under straight line braking but they were during the final swerve."
"Overall an unusual statement from DFT.
I find the statement of DFT, in all the circumstances, to be remarkably short. Only 10 lines actually relate to the case in question. He says the mark left by the motorcycle tyre (when he may have meant tyres in the plural) is NOT typical of a locked wheel mark, although wear on the tyres (and this time he does use the plural) is indicative of heavy braking.
DFT goes on to say the co-efficient of friction employed by Constable McCarthy in relation to the slide of the motorcycle is reasonable. Ends by asserting the marks to be indicative of speed of about 73 mph for the motorcycle as it entered the bend.
I would have preferred to understand some of the reasoning behind his assertions. "
…Constable McCarthy used an assumed co-efficient of friction for the sliding motorcycle. I appreciate there would have been some difficulty in establishing accurate co-efficients as the machine slid across more than one surface but it appears a drag test on the tarmac of the main carriageway would have been applicable to over half the distance of the slide and would have informed us better on the appropriateness of any assumptions to be made about the co-efficient for the remainder of the slide on the footpath area.
Under the circumstances one might have expected more extensive photographs of the scene, of the marks and of the vehicles. As the photographs that were taken show skid marks apparently coming from the police car I would have liked to see photographs of the measurements of the vehicle track width which proves they did not come from that vehicle. Indeed Constable Devlin, the first traffic officer upon the scene mentions the skid marks left by the patrol car which was still in situ. If it was difficult for an experienced traffic officer at the scene to determine they did not come from the police vehicle those of us working from the photographs might be forgiven some scepticism.
Both vehicles were examined by Constable Lamb. In a case such as this photographs of both vehicles would have been of assistance. I should have liked to see the marks on the patrol car and the metal counterbalance weights on the motorcycle handle bars.
I would have like to see the general presentation of the police vehicle which drew adverse comment from Constable Lamb. I would have liked to be assured that the brake light on the motorcycle was or was not working. Two police officers followed that motorcycle for several miles yet neither recalls at any time seeing its brake light come on. Why. As inappropriate braking seems to have been the undoing of Mr Power I should very much like to understand whether, depending upon how far behind the motorcycle they were, the officers should have seen the brake light come as the motorcycle entered the fatal bend and when the rider released the brakes.
I am uneasy about this whole incident.
In all the circumstances I feel the MPS may leave itself exposed to criticism if it does not now inform the representatives of the deceased's family of this review and the vulnerability of DFT."
The report concludes:
"We can all appreciate how easy it would have been for November 1 to have nudged the motorcycle on the approach to the bend. I am not surprised the family of the deceased feel unhappy with some aspects of this investigation."
Notwithstanding the view expressed by Mr Cox the family were not informed of the existence of his report nor its content until 2015.
"…4. PC McCarthy failed to locate the witness who said that N1 had contacted the motorcycle.
5. The two statements from the driver and the operator were exactly the same.
6. The officers could not have seen the crash if they were 100m back as per their statements.
7. PC Lamb – examination of N1, the [motorcycle] and findings.
8. The measurement of the tyre marks against N1.
9. Did N1 drive along side Mr Power and was there contact.
10. Impact of review of Mr Turner's work OP BERAYSIM…"
"The only way to prove or disprove the marks came from the [motorcycle] would have been to have performed forensic tests, but this was not completed. I am unable whether this was a matter of policy at the time."
Observations of the first interested party
Lord Justice Lindblom: