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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> P, R (on the application of) v HM Coroner for the District of Avon [2009] EWCA Civ 1367 (18 December 2009) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2009/1367.html Cite as: [2009] EWCA Civ 1367, (2010) 112 BMLR 77, 112 BMLR 77 |
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ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT) MR JUSTICE BEATSON
REF NO:CO78652008
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE MAURICE KAY
and
LORD JUSTICE RIMER
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THE QUEEN ON THE APPLICATION OF P |
Appellant |
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- and - |
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HER MAJESTY'S CORONER FOR THE DISTRICT OF AVON |
Respondent |
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Mr Hugh Mercer QC (instructed by Bristol City Council) for the Respondent
Hearing date : 23 November 2009
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Crown Copyright ©
Lord Justice Maurice Kay :
The factual background
The Prison Ombudsman's report
"(1) The Head of Healthcare should ensure that staff responsible for generating mental health assessment appointments after a detoxification programme are clear [about] their responsibility.
(2) The Governor should remind officers that during all checks on prisoners they should receive either a visual or verbal response.
(3) The Governor [should] remind discipline staff of the need to properly complete Cell Sharing Risk Assessment forms, indicating precisely which documents have been seen and received at this stage.
(4) The Governor should remind personal officers of their responsibility to record contact with prisoners in wing files in accordance with the 2007 Personal Officer Scheme Policy and Strategy."
The summing-up
"Item 3 on the form, Time, Place and Circumstances at or in which the injury was sustained. In completing this section, you will need to discuss between yourselves the evidence which you have heard and agree the factual circumstances which give rise to the death. When describing the circumstances, you should be brief, neutral and factual, expressing no judgment or opinion. You should set out actual facts as you find them and, as you consider them relevant and upon which you base your conclusion. An example, and this is only an example, would be at 15.10 hours on 5th January 2007 at Eastwood Park Women's Prison, Gloucestershire, Caroline Jane Powell was found hanged in her cell. But again, this is a matter for you. Finally, item 4. The conclusion of the jury as to the death. When you have agreed the facts, then and only then should you consider and answer question 4. The Conclusion. This duty must transcend your feelings of sympathy for particular people. You have to reach a conclusion even if that conclusion seems to be unkind to some people. I now explain to you the various … conclusions that may be relevant in this case. You should note these directions very carefully. If you do not understand them or any aspect of them, please ask and I will be happy to provide you with further assistance. If possible, you should all agree your decisions. If you cannot then please advise me and then at that stage I will provide you with further directions. Now the first conclusion for you to consider is that of suicide. … Suicide is a voluntary … doing an act, which results in a death for the purposes of taking your own life while conscious of what you are doing. Suicide may never be presumed, but must always be based upon some evidence that the deceased intended to take her own life. Suicide should only be returned when other possible explanations have been totally ruled out. You must, on the evidence, be sure that the intention of the deceased was to take her own life. If you are not sure, then this conclusion should not be returned. If there is evidence that when the deceased acted, they [sic] were either suffering from a diagnosed mental illness or were acting irrationally, even though death was the intended result of the act, then it is open to you to add the words to the effect, that is, whilst the deceased was suffering from, and then you insert the diagnosed condition. The correct wording for you to adopt, if you decide on this verdict would be, Caroline Jane Powell took her life, and then it is up to you to add if you want to add, whilst the deceased was suffering from, then you put in the condition. Only when you have considered this verdict and rejected it should you then consider the relevance or otherwise of the other conclusions …
An accident arises if the evidence shows that its probable that it is more likely than not the cause of death arose directly from some procedure, process or event over which there was no human control, or was the consequence of an unintended act or omission or as the unintended consequence of a deliberate act or omission. An example in this particular case would be if, say, Caroline was hoping to be found, a sort of cry for help, but again, that is a matter for you. … There has to be a direct link between the event and the death that followed. The correct wording for you to adopt here if you found this as the appropriate verdict would be Caroline Jane Powell died as a result of an accident. The next option for you to consider would be a verdict of narrative. If you do not consider that any of the above verdicts express your factual conclusions then you may return a narrative verdict, which is a short statement summarising your factual conclusions as to the circumstances in which Caroline came by her death. In this particular case, you can interpret the term to include by what means, and in what circumstances. To return a narrative verdict, the act or omission must have contributed to the death in a more than minimal or trivial way. As with the other verdicts, the same rules apply, and the phrases you must not use are things like neglect or carelessness, as an example really. You must not name individuals either other than Caroline herself and you must all agree to the phrase that you decide to use. To assist you, please consider some of the following issues … "
"Did the staff obtain sufficient information about any factors which would render Caroline vulnerable to self-harm or suicide? How Caroline appeared to those she had contact with at Eastwood Park. Was it appropriate to put her in a cell on her own? The impact of the unsuccessful bail application … on Caroline. How Caroline appeared to her fellow inmates and prison staff on the morning of the 5th January. The manner in which cells were unlocked. Whether there were any sufficient warnings of her intention to those in authority."
Finally, the Deputy Coroner assisted the jury with the uncomplicated formal requirements in relation to Box 5 which deals with personal details of the deceased.
"I wonder if the jury could be reminded that if they decide to return a verdict of suicide or accident, they will need the short form verdicts. This does not prohibit them from attaching a short narrative to the short form verdict but they are allowed to do that."
"Personally, before you say anything, the time, place and circumstances at and in which the injury was sustained in my view often incorporates what you've just asked."
"I think the summing up gives clear direction to the jury about what their task is. I think the summing up clearly explains the verdicts and how they should be used and I think my direction on narrative clearly gives them the option that if they don't consider the short form verdicts express their factual conclusions, then they can return a narrative verdict and that confirms that they can do a short statement summarising the factual conclusions."
The legal framework
"Neither the coroner nor the jury shall express any opinion on any other matters."
"The European Court of Human Rights has repeatedly interpreted Article 2 … as imposing on member states substantive obligations 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 …
The European Court has also interpreted Article 2 as imposing on member states a procedural obligation to initiate an effective public investigation by an independent official body into any death occurring in circumstances in which it appears that one or other of the foregoing substantive obligations has been, or may have been, violated and it appears that agents of the state are, or may be, in some way implicated."
"But it is plain that in other cases a strict ex parte Jamieson approach will not meet what has been identified above as the Convention requirement. In Keenan 33 EHRR 913 the inquest verdict of death by misadventure and the certification of asphyxiation by hanging as the cause of death did not express the jury's conclusion on the events leading up to the death. Similarly, verdicts of unlawful killing in Edwards and Amin, although plainly justified, would not have enabled the jury to express any conclusion on what would undoubtedly have been the major issue at any inquest, the procedures which led in each case to the deceased and his killer sharing a cell."
"This will not require a change of approach in some cases, where a traditional short form verdict will be quite satisfactory. It will call for a change of approach in others … In the latter class of case it must be for the Coroner, in the exercise of his discretion, to decide how best, in a particular case, to elicit the jury's conclusion on the central issue or issues. This may be done by inviting a form of verdict expanded beyond those suggested in … the Rules. It may be done, and has (even if very rarely) been done, by inviting a narrative form of verdict in which the jury's factual conclusions are briefly summarised. … It would be open to parties appearing or represented at the inquest to make submissions to the Coroner on the means of eliciting the jury's factual conclusions and on any questions to be put, but the choice must be that of the Coroner and his decision should not be disturbed by the courts unless strong grounds are shown.
The prohibition in Rule 36(2) of the expression of opinion on matters not comprised within sub-rule (1) must continue to be respected. But it must be read with reference to the broader interpretation of 'how' … and does not preclude conclusions of fact as opposed to expressions of opinion. However the jury's factual conclusion is conveyed, Rule 42 should not be infringed. Thus there must be no finding of criminal liability on the part of a named person. Nor must the verdict appear to determine any question of civil liability. Acts or omissions may be recorded, but expressions suggestive of civil liability, in particular 'neglect' or 'carelessness' and related expressions should be avoided. Self-neglect and neglect should continue to be treated as terms of art. A verdict such as … 'the deceased took his own life, in part because the risk of doing so was not recognised and appropriate precautions were not taken to prevent him from doing so' embodies a judgmental conclusion of a factual nature, directly relating to the circumstances of death. It does not identify any individual nor does it address any issue of criminal or civil liability. It does not therefore infringe either Rule 36(2) or Rule 42."
"… in any case where a death has occurred in custody it is not a minor or unimportant duty. In this country … effect has been given to that duty for centuries by requiring such deaths to be publicly investigated before an independent judicial tribunal with an opportunity for relatives of the deceased to participate. The purposes of such an investigation are clear: to ensure so far as possible that the full facts are brought to light; that culpable and discreditable conduct is exposed and brought to public notice; that suspicion of deliberate wrongdoing (if unjustified) is allayed; that dangerous practices and procedures are rectified; and that those who have lost their relative may at least have the satisfaction of knowing that lessons learned from his death may save the lives of others."
The application for judicial review
The judgment of Beatson J
"I reject the submission that it was incumbent on the Coroner to direct the jury expressly that a narrative summary should be added to a short form verdict. That essentially would have created a hybrid. The jury had three options open to them. They were 'enabled' to express their conclusions on the core facts if they considered that the two short form verdicts did not do so.
I also conclude that it is possible to infer from this verdict that the accident verdict was sufficient to express the jury's factual conclusions and conclusion that there was insufficient evidence that the 12 acts or omissions contributed to the death in more than a minimal or trivial way."
"… in the present case the jury were enabled in [Box] 3 of the Inquisition to refer to the circumstances in which the injury was sustained, but chose not to do so. Again, the terms of the summing up are important. The Coroner said that with regard to [Box] 3, the jury 'will need to discuss between yourselves the evidence which you have heard and agree the factual circumstances which give rise to the death. When describing the circumstances, you should be brief, neutral and factual, expressing no judgment or opinion.' [Box] 3 of the form was a section to be filled in whichever verdict they came to."
"There is no sign that lessons have not been learned. …
In the light of the absence of criticism of the thoroughness of the investigation at the inquest or the evidence heard, and the narrowness of the criticism made of the Coroner's summing up, had the summing up been defective in the way that the claimant said it was, given the Ombudsman's Report, this was not a case for remission."
Misdirection
"The next option for you to consider would be a verdict of narrative. If you do not consider that any of the above verdicts express your factual conclusions then you may return a narrative verdict, which is a short statement summarising your factual conclusions as to the circumstances in which Caroline came by her death."
"When describing the circumstances, you should be brief, neutral and factual, expressing no judgment or opinion."
Consequences
Lord Justice Rimer:
Lord Justice Dyson: