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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Devon & Cornwall Police v HM Coroner for Plymouth, Torbay and South Devon & Ors  EWHC 3729 (Admin) (27 November 2013)
Cite as:  EWHC 3729 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Chief Constable of Devon and Cornwall Police
|- and -
|HM Coroner for Plymouth, Torbay and South Devon
|(1) Mrs Elber Twomey
|(2) Mrs Agnieszka Wojciechowska
|(3) The Insurers of Mr Marek Wojciechowski (Deceased)
|(4) Independent Police Complaints Commission
Christopher Hough (instructed by Wiseman Lee) for the 1st Interested Party
Katie Scott (instructed by Foot Anstey) for the 2nd Interested Party
Dominic Kay (instructed by Weightmans LLP) for the 3rd Interested Party
Hearing dates: 26 November 2013
Crown Copyright ©
Mr Justice Stuart-Smith:
The Factual Background
"At about 2.12pm on Friday 6th July 2012, Devon and Cornwall Police ("the Police") received a telephone call reporting that Mr Marek Wojciechoski had left his home address in his vehicle, a black Vauxhall Vectra, approximately 30 minutes earlier, leaving a note stating that he was 'sorry' and was 'going to end it'. This note was written in Polish and the call was made by a friend of Mr Wojciechowski's wife, as his wife spoke very little English. The call was graded by the police as requiring an immediate response and Mr Wojciechowski was categorised as a high risk missing person. The police control room asked over the police radio system that units look for the Vauxhall Vectra and gave authority for a stop check if the vehicle was seen.
At 2.43pm, PC Ben Bickford reported to the control room that he had sighted a black Vectra but that he had not been able to check the registration. PC Bickford activated his emergency equipment in order to progress towards the Vectra so that he could identify it. At 2.45pm PC Bickford informed the control room operator that he had caught the vehicle up but that he had not yet attempted to stop the vehicle. PC Bickford was then able to reach a distance from the Vectra at which he was able to attempt to stop the vehicle. He flashed his headlights four times, and gave a hand signal to indicate that the Vectra should pull over. The Vectra initially appeared to slow but then suddenly accelerated and drove onto the other side of the carriageway and into a head-on collision with a Volkswagen Golf. At 2.47pm PC Bickford reported to the control room that the Vauxhall Vectra had collided with another vehicle. The Volkswagen Golf was carrying three occupants of the same family. Oisin Twomey, a 16-month old boy, died at the scene. His father, Mr Connie Twomey, was seriously injured and subsequently died from his injuries in 2013. Mrs Elber Twomey was 24-weeks pregnant at the time of the collision: the unborn baby did not survive. Mr Wojciechowski died after being taken to hospital. "
"Was there any defect or defects in the State organisations that day which contributed to the death? If there were no defects, please state "none" "
In the course of the present hearing a consensus emerged that, if it was to be asked, Question 9 should be amended to include words to the effect that "If there was a defect or defects in the State organisations that day which contributed to the death, what was it or were they?" This amendment does not affect the principle of whether the question should be asked at all.
"WRITTEN DECISION BY H.M. CORONER I.M. ARROW IN RESPECT OF "SHOULD I PUT QUESTION 9 TO THE JURY OR NOT"
This Inquest involves the death of two individuals. The deaths follow a two vehicle collision. On the evidence thus far one vehicle had a Police car behind it. The driver of the car, on the balance of probability, noticed a request by the Police driver to stop.
There was therefore in my view the involvement of a Police Officer. I am therefore required to sit with a Jury.
If I sat alone I can ask myself questions. I am not sitting alone.
It is clear at least one family has concerns as to the conduct of the Police Officer at the incident. I am satisfied an important function of an Inquest is to allay fears and suspicions.
As in a Jury Inquest the Jury is to be the arbiter of facts, it is important the matters are raised before the Jury, in simple terms for them to consider. I refer in particular to Lord Bingham in the case of Amin I paraphrase:
Article 2 of the European of Convention of Human Rights requires among other things that there is an effective inquiry which will include a sufficient element of public scrutiny in order to ensure practical as well as theoretical public accountability for deaths occurring under the States responsibility. Openness and transparency are particularly important. The purpose is 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 wrong doing (if unjustified) is allayed, that dangerous practices and procedures are rectified. That those who have lost their relatives may at least have the satisfaction of knowing the lessons learned from his death may save the lives of others.
I have a very wide discretion as to the questions to be put. I am in the habit of preparing simple questions for the Jury. I have done so for several years. It appears the most efficient way to raise the matters for their consideration.
I am asked by the family of one of the bereaved to ask question 9, I am asked by the Insurer of another to ask the question. I am asked by the representative of Devon & Cornwall Police not to ask the question.
I consider question 9 an appropriate question to raise for the Jury where there are concerns raised by the family. The Jury thereby publicly and transparently considers whether or not there has been any state action which has contributed to the death of one or more individuals. It also gives the Jury an opportunity to consider and indicate there was no breach. For that reason I shall leave the second part of question 9 so as to elicit such clarification."
The Legal Framework
"5. Matters to be ascertained
(1)The purpose of an investigation under this Part into a person's death is to ascertain—
(a)who the deceased was;
(b)how, when and where the deceased came by his or her death;
(c)the particulars (if any) required by the 1953 Act to be registered concerning the death.
(2)Where necessary in order to avoid a breach of any Convention rights (within the meaning of the Human Rights Act 1998 (c. 42)), the purpose mentioned in subsection (1)(b) is to be read as including the purpose of ascertaining in what circumstances the deceased came by his or her death.
(3)Neither the senior coroner conducting an investigation under this Part into a person's death nor the jury (if there is one) may express any opinion on any matter other than—
(a)the questions mentioned in subsection (1)(a) and (b) (read with subsection (2) where applicable);
(b)the particulars mentioned in subsection (1)(c).
This is subject to paragraph 7 of Schedule 5. "
(2)A determination under subsection (1)(a) may not be framed in such a way as to appear to determine any question of—
(a)criminal liability on the part of a named person, or
(b)civil liability. …"
"Action to prevent other deaths
(a)a senior coroner has been conducting an investigation under this Part into a person's death,
(b)anything revealed by the investigation gives rise to a concern that circumstances creating a risk of other deaths will occur, or will continue to exist, in the future, and
(c)in the coroner's opinion, action should be taken to prevent the occurrence or continuation of such circumstances, or to eliminate or reduce the risk of death created by such circumstances,
the coroner must report the matter to a person who the coroner believes may have power to take such action. "
i) Coroners have a wide degree of discretion about the scope of the enquiries that they make or permit in the course of hearing an inquest of either kind. What will differ is the form of verdict that may be reached at the end, which is a direct result of the application of s. 5(1) and, where Article 2 is engaged, 5(2) of the 1989 Act: see Smith at  per Lord Phillips and  per Lord Mance. The position is neatly summarised by Lord Mance at  of Smith:"Everyone agrees that coroners have a considerable discretion as to the scope of their enquiry, although the verdict that they may deliver differs according to the type of inquest being held."
ii) The Article 2 substantive duty will be breached where the State fails to take steps that it should have taken. It is not shown to have been breached simply because an act or omission by an agent of the state is shown to have caused or contributed to a death;
iii) It was accepted by Mr Christopher Hough, who appears for Mrs Twomey, and Mr Kay, who appears for the insurers of Mr Wojciechowski, that if there was no evidence that a suicide risk assessment or procedure would or should be different from the procedures that were in place and implemented, there would be no basis for asking question 9. Ms Scott, who appeared for Mrs Wojciechowska, was not asked to confirm her agreement to this proposition but did not argue against it. For my part, although I am not aware of authority directly in point on the proposition, I am confident that its acceptance by Mr Hough and Mr Kay is correct. Procedure in Coroner's courts should be evidence based and there can be no justification for asking a Jury to make a finding for which there is no evidence. The harm that could ensue if juries are asked to speculate without any evidence to support their speculation is obvious. This is not in any way a criticism of the diligence with which a jury approaches its task: it is simply that, if there is no material upon the basis of which a jury can answer a question, asking them to do so presents them with an impossible task;
iv) This does not mean that matters of concern about which there is no evidence cannot be addressed in an Article 2 compliant way. The coroner's duty to report (now under paragraph 7(1) of Schedule 5) is an integral part of the procedure that satisfies the requirements of Article 2: see Lewis at 1837a (the headnote) and [37-39]. It is to be noted that the obligation arises whenever there is a "concern that circumstances creating a risk of other deaths will occur, or will continue to exist, in the future." It is not necessary for the inquest to have disclosed that the circumstances giving rise to concern have in fact caused or contributed to a death already, or that the circumstances giving rise to the concern have been shown to involve a breach by the State of its Article 2 obligations (or by any person of their obligations, though not arising under Article 2).