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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Palmer & Anor, R (on the application of) v Worcestershire County HM Coroner & Ors [2011] EWHC 1453 (Admin) (09 June 2011)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2011/1453.html
Cite as: [2011] Med LR 397, [2011] BLGR 952, [2011] EWHC 1453 (Admin), [2011] ACD 100

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Neutral Citation Number: [2011] EWHC 1453 (Admin)
Case No: CO/9078/2010

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

Birmingham Civil Justice Centre,
Bull Street, Birmingham
09/06/2011

B e f o r e :

MR JUSTICE HICKINBOTTOM
____________________

Between:
THE QUEEN on the application of
(1) ANDREW PALMER
(2) MARGARET PALMER


Claimants

- and -


HM CORONER FOR THE COUNTY OF WORCESTERSHIRE



Defendant

WORCESTERSHIRE COUNTY COUNCIL
THE CHIEF CONSTABLE OF
WEST MERCIA POLICE



Interested Parties

____________________

(Transcript of the Handed Down Judgment of
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____________________

Martin Westgate QC and Adam Straw (instructed by Deighton Guedella) for the Claimants.
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

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Mr Justice Hickinbottom:

    Introduction

  1. On 20 May 2006, Adrian Palmer, a young man of 21 years of age with Asperger's Syndrome, died at the hands of Ben Murphy. Earlier that year, he had accused Murphy of raping him. Murphy was arrested, interviewed and bailed; but the Crown Prosecution Service ("the CPS") decided not to prosecute him. Murphy was upset with Adrian over the allegation, Adrian being the subject of various threats by Murphy or on his behalf.
  2. Following Adrian's death, the Defendant coroner ("the Coroner") opened an inquest, but adjourned it pending the outcome of the criminal proceedings against Murphy, who was charged with Adrian's murder. Murphy was willing to plead guilty to manslaughter, but not to murder. Two trials proved inconclusive, the jury being unable to reach a verdict in either. At the end of the second trial, Murphy's plea of guilty to manslaughter was accepted, and he was sentenced to 4 years' imprisonment in December 2007.
  3. The Claimants Mr & Mrs Palmer are Adrian's grandparents, with whom he lived. In April 2010, they wrote to the Coroner asking him to resume the inquest into Adrian's death, a request he refused on 26 May 2010. In these proceedings, with leave of Nicola Davies J, Mr & Mrs Palmer challenge that refusal.
  4. The First Interested Party ("the Council") is Worcestershire County Council, the relevant social services authority. The Second Interested Party is the Chief Constable of West Mercia Police, who is liable for the acts and omissions of members of the West Mercia Police ("the Police Force").
  5. Briefly, Mr & Mrs Palmer contend that there is an arguable case that the state in the form of the Interested Parties violated Adrian's rights under article 2 of the European Convention on Human Rights by failing to have in place adequate systems for the protection of vulnerable individuals such as Adrian, and in failing to take reasonable steps to safeguard him against a real and immediate risk to his life. In those circumstances, the state has an additional obligation under article 2 to ensure that an independent enhanced enquiry is conducted into his death. As no investigation sufficient to satisfy the obligations under article 2 has yet been conducted, the Coroner erred in refusing to resume his inquest, which is the only opportunity for the state's investigative obligation to be properly satisfied. It is submitted that the resumption of the inquest is therefore necessary to comply with article 2.
  6. The Police Force and the Council deny that there was any arguable violation of Adrian's article 2 rights, and hence there is no obligation on the state to conduct an enhanced investigation into Adrian's death; but, in any event, they contend that, if there were such an obligation, then the investigations and procedures which have already been conducted would be sufficient to comply with it. In those circumstances, it is submitted on their behalf that the Coroner was lawfully entitled not to resume the inquest.
  7. The Coroner attended the hearing before me, but, as usual in challenges to judicial decisions in this court, he did not play any part in the proceedings. The other parties were represented, and the assistance I obtained from Martin Westgate QC and Adam Straw for Mr & Mrs Palmer, Jenni Richards QC for the Council and Samantha Leek for the Police Force was considerable. I gratefully acknowledge it.
  8. The Factual Background

  9. Adrian was born on 19 November 1984. From the age of two years, he lived with his grandparents, Mr & Mrs Palmer, in Tenbury Wells, Worcestershire, whilst his mother lived in South Wales.
  10. In his teens, Adrian was diagnosed as having Asperger's Syndrome and attention deficit hyperactivity disorder. Like many with Asperger's Syndrome, Adrian found social interaction difficult: he struggled to make and maintain relationships, and had difficulties understanding and reacting to social situations in a conventional or appropriate way. In their turn, those who cared for and otherwise knew Adrian found his behaviour challenging. In drink, his behaviour became even more unconventional. Some of his acquaintances appear to have deliberately plied him with drink to make him behave so.
  11. Apparently because of concerns about the company he was keeping and the consequent risk to himself, in 1999, social services first became involved with Adrian at Mr & Mrs Palmer's request. In 2002, when he reached 18, he was allocated to the Council's Adult Services Learning Disability Service. In December 2004, an adult care assessment was completed, which recorded that Adrian had difficulty in interpreting motives and actions: he could antagonise people, could place himself in risky situations and could easily be led, which put him at some risk in the community. However, he was assessed as a low to moderate priority.
  12. From 2001 to July 2005, he was at Ruskin Mill College, a residential educational establishment for young people with developmental needs. When he left, the Council did not consider that he needed 24 hour per day care, and he lived with Mr & Mrs Palmer who pressed the Council to give them more support.
  13. On 23 March 2005, Adrian telephoned the police about a pub opening out of hours, and told them that someone had threatened to kill him that evening. There is no suggestion that the person who threatened him was Murphy. However, the police would not attend, so Adrian went to the fire station for help. It was closed, but he broke in and took a fire engine by driving it through the closed shutter doors and out onto the open road. He drove for about 6 miles, before driving the fire engine into a field and being apprehended. The damage was valued at over £10,000. Adrian was prosecuted for aggravated vehicle taking, but was found unfit to stand trial. He was however tried under the provisions of the Criminal Procedure (Insanity) Act 1964, and found to have done the act of taking the fire engine; and, on 10 February 2006, under section 5 of that Act, he was made the subject of a 2-year supervision order with the Council being the supervising authority.
  14. However, in the meantime, there had been another development, important for the purposes of this claim. On the evening of 6 January 2006, Adrian went out with several friends. As he was walking home with one of them (Ms Cher Marsden), he told her that Murphy had raped him. She said that they should go and see her mother (Mrs Antoinette Williams), which they did. He told her too that Murphy had raped him. She advised him to ring the police, which he did, at 3am on 7 January.
  15. According to the police record of the report Adrian appeared to be "very intoxicated", and said that he was getting revenge on Murphy for raping him four years ago. He said he did not want to kill Murphy, but that he "needed" to do so. He said he did not want to be arrested: he wanted to be taken home. Two officers attended, and did take him back to his grandparents' house, where arrangements appear to have been made for a vulnerable witness interview in relation to his claim that he had been raped. The officers left; but, within half an hour, the police received another call, this time from Mr Palmer, who said that Adrian was wrecking the house, and Mr & Mrs Palmer could not cope. The police officers re-attended and arrested Adrian. At the police station, Adrian said that the reason he had "kicked off" was because Murphy had been blackmailing him for sex.
  16. Adrian was released the following morning, and, when he got home, in the presence of his grandmother, he gave the police an initial account of what Murphy had done to him. Mr & Mrs Palmer then took him to South Wales, where he stayed with his mother, returning to Tenbury on 12 January, to take part in a visually recorded interview. In view of his Asperger's Syndrome, he was interviewed in the presence of an appropriate adult, namely Mrs Williams.
  17. That evening, Mr Palmer reported Adrian was missing. He was found by police and returned home, within the hour. However, the officer who found him logged that rumours of the rape allegation were circulating, apparently having been spread by Mrs Williams. Adrian then returned to stay in South Wales with his mother and Ms Marsden, although apparently returning to Tenbury for some weekends.
  18. Murphy was arrested, interviewed and bailed on 26 January, and his home was searched the same day.
  19. On 28 January, Adrian's mother contacted the police to say that Adrian and Ms Marsden had been staying with her in Wales. However, Adrian had attempted to kiss Cher, with the result that she had left and returned to Tenbury. They had apparently fallen out over this. She had sent a text to Adrian saying that she did not want anything more to do with him, and she would support Murphy and not Adrian. It said: "I'm in the Vaults [public house in Tenbury] with Ben Murphy getting pissed and I'm one hundred per cent behind Ben. You better watch your back, you're dead!".
  20. As I have already indicated, on 9 February 2006 a supervision order was imposed on Adrian in respect of the taking of the fire engine.
  21. The following day (10 February), a car followed Adrian, from which Ms Marsden shouted abuse at him, and threw things at him. She got out of the car and pushed him. Adrian told her that he would report the incident; and it seems that he did go to the station, but was simply told to go home. Ms Marsden also appears to have reported Adrian that evening for harassing her. The next day, PC Hunting went to Adrian's house and looked at various texts from Ms Marsden on his mobile phone. He spoke to both Adrian and Ms Marsden, to some apparent effect, as there appears to have been no further inappropriate contact between the two of them after that advice.
  22. On 6 March, the CPS decided not to take any further action on the rape allegation because of a lack of medical or other corroborative evidence, Adrian could not remember when the attack had taken place, and he had been found not fit to plead in relation to the fire engine incident.
  23. In relation to the possible date of the rape, Mrs Palmer made a statement in April 2008 (in relation to a police complaints procedure), in which she said that she recalled an incident in December 2004, when Adrian came home having seen Murphy, and he said that Murphy had locked him in and started to knock him about. Adrian appeared upset. Murphy had said to him that, if he told anyone, he would kill him. The following morning, Mrs Palmer noticed that Adrian's underpants were soiled and had blood on them, although he denied having a stomach upset. When Mrs Palmer suggested she would go and see Murphy, Adrian grabbed her and told her not to do so, because Murphy was violent and would push her down the stairs. With hindsight, Mrs Palmer wondered whether that might have been the occasion of the rape; but, during the course of the police investigation of the rape, she does not appear to have been asked about any assistance she might have been able to give in relation to the date of the rape.
  24. The decision not to prosecute Murphy in relation to the allegation of rape was notified to Adrian and Murphy on 9 March. Adrian's mother said that, she thought that very day, Adrian telephoned Ms Marsden, to ask if they could now be friends. She said that he would have to ask Murphy; and he therefore phoned him. Murphy told him to go down to the Vaults; he said he couldn't because he was in Wales; and Murphy said, "It's just as well, cos if you ever come back to Tenbury I'm going to fucking kill you". Adrian's mother heard that conversation on the phone's loudspeaker. She took his phone off him, and it does not appear to have been switched on again until about 29 March.
  25. Mrs Palmer said that about seven voice messages were left for Adrian on his mobile from 9 March, all heard on 29 March when the phone was turned back on. She heard some of these, which were in a Welsh accent, but Adrian told his grandmother that Murphy was good at accents and he thought they had been left by Murphy. They included: "You've got a tight little arse and I'm going to shag it til it bleeds and bleeds", "They don't call me Ben, they call me bend over", "You better top yourself or I'll do it for you", and the last one which was simply, "You're dead". Most of the calls appear to have been made on 9 March, although the last appears to have been made as late as 23 March. On 29 March, Adrian's mother reported to a women's support worker with whom she was working that Adrian had received several text messages since he had turned off his mobile phone on 9 March. She told her to report them to the police in Tenbury, to where Adrian returned at the end of March.
  26. On 1 April, Adrian reported those voice messages to the police: and PC Gilchrist attended Adrian's house to listen to them. He closed the incident, saying the messages were unintelligible. On 4 April, a psychologist who worked with Adrian regularly (Dr Richens) also listened to the messages.
  27. On 1 April, Mr & Mrs Palmer wrote to their Member of Parliament (Bill Wiggins MP), expressing concerns about Adrian, now that he was an adult. They said that the police took the allegation of rape "very seriously", and referred to a threat to kill (which appears to be a reference to the threat made by Ms Marsden on 10 February). The focus of the letter is a plea for more help to support Adrian: Adrian could go into a home, they said, but wished to stay with his grandparents.
  28. A care plan prepared by the Council on 31 March 2006 appears to reflect that: it said that, although Adrian needed options outside Tenbury, he was not prepared to move from Tenbury for the time being. It identified risks (e.g. that Adrian was likely to place himself in risky situations within the local community, especially if he had been drinking) and needs, such as: "Opportunity to have as independent life as possible, whilst address risky situations, and assisting Adrian to make his own decisions" for which "Regular support" was proposed. The need for counselling and other support to address past issues in relation to allegations of sexual abuse was also noted.
  29. On 16 April, Adrian went to the police station to report that he had been inappropriately touching a female. Social Services became involved, but no action was taken as he appeared to be confused, and it was thought that no offence had in fact been committed.
  30. On 24 April, an application was made by Mr & Mrs Palmer to the Council for more support. Adrian had again refused to consider the option of moving to supported living, and was in receipt of 5 hours support. The application referred to both the rape allegation, and the abusive calls Adrian had received. An extra 12 hours per week was agreed from June, but none in the evening.
  31. In the early hours of 20 May 2006, Adrian's body was found dead in a car park in Tenbury. The circumstances in which he came to meet Murphy that evening are not clear. There is no evidence that he had received any threats from Murphy or anyone else after March 2006. There is no evidence that Murphy was looking for him, indeed, if anything, the opposite: Murphy appears to have regarded Adrian as a nuisance and wanted nothing to do with him. It seems that, that evening, Adrian had been at a friend's and left to go home but, rather than do so, he had gone into Tenbury. It was the first time he had gone into Tenbury on his own since his return from Wales at the end of March. There is no evidence that his meeting with Murphy was anything other than an unplanned coincidence. However, when they met it appears that the talk turned to the rape allegation, and Murphy tripped Adrian up and held him by the neck causing his death. I am unaware of the basis of his plea to manslaughter, but his conviction for manslaughter alone may give some indication of his intent.
  32. Other Investigations

  33. In December 2007, Mrs Palmer wrote to the Prime Minister Gordon Brown expressing her opinion that Adrian had been let down by a number of Government agencies. That letter was passed to the Secretary of State for Justice, and thence to the Chief Constable of West Mercia Police who made a voluntary referral to the Independent Police Complaint Commission ("the IPCC").
  34. The IPCC was set up by the Police Reform Act 2002. Under section 10 of that Act, it has a duty to ensure public confidence is maintained in police complaints arrangements. By section 15(2), the IPCC itself must determine the form any investigation is to take. Paragraph 23 of schedule 3 to the Act requires it to decide whether the case should be referred to the DPP because any criminal offence may have been committed by any subject of the investigation; and, on the basis of the report, the Chief Constable must decide whether any such person has a case of misconduct to answer.
  35. Although the reference to the IPCC in this case was initially voluntary, the IPCC decided that the investigation should be upgraded to an independent investigation and it was conducted as such. The terms of reference included a review of the rape allegation, and the investigation into the threats to and harassment of Adrian, including the interaction between the Police Force and other agencies (including the Council), whether relevant national and local policies were complied with, and whether any change in policy or practice would help prevent a recurrence. The extent to which there was knowledge of Asperger's Syndrome within the investigations was also a term of reference.
  36. The IPCC reported in November 2009 in a document of 69 pages, excluding appendices, entitled "Mr Adrian James Palmer: Independent Investigation into West Mercia Constabulary's involvement with Adrian Palmer in the Months leading up to his Death".
  37. With regard to the rape investigation, the report concluded that the officer in charge (PC Wood) failed to conduct a thorough investigation prior to submission of a case file to the CPS. PC Wood was a relatively inexperienced officer, and the report found that she ought to have done more to obtain corroborative evidence by following up lines of enquiry, such as medical evidence and evidence from other members of the family, and at least made clear to the CPS when she submitted the file to them that all lines of enquiry had not been exhausted; and her supervising officer (Sgt Kent) failed to ensure that a thorough investigation was conducted and a complete file passed to the CPS. The delay in arresting Murphy was also criticised.
  38. The report considered the threats to Adrian in two time periods. It found that the manner in which the threats prior to 9 March 2006 were dealt with was not open to criticism. Ms Marsden accepted that she made those threats – and that she had assaulted Adrian on 10 February 2006 – and PC Hunting provided advice to both Adrian and Ms Marsden on 11 February, after which there were no more calls or other incidents between the two of them.
  39. With regard to the calls after 9 March 2006, the report found that further steps could and should have been taken to examine Adrian's mobile phone, and speak to Adrian's family and Murphy, to establish from whom the messages were coming. Adrian's family of course believed they came from Murphy, despite the Welsh accent in which they were sent.
  40. However, the report said that it could not be said that "if the rape investigation and reports of threats via mobile were looked into correctly, then Ben Murphy would not have killed Adrian Palmer on 20 May 2006" (paragraph 323). It concluded that "the investigation cannot say that these failings contributed to Adrian's death" (paragraph 326).
  41. The report made a number of recommendations, including a raising of awareness of the Police Force's Serious Sexual Offences Policy and Procedure (which the report describes as "robust"), the Sexual Offences Liaison Officers and the police partnership with Autism West Midlands (Recommendations 1.2 and 6), and that the police "should review the working level agreements between partner agencies dealing with vulnerable persons" (Recommendation 5).
  42. Additionally, a Social Care Stage 2 complaint was pursued by Mrs Palmer and her son (Mr Stephen Palmer) under the procedure set out in the Local Authority Social Services Complaints (England) Regulations 2006. The complaint was against the Council's Learning Disability Service with regard to the services and support offered to Adrian. That was the subject of a 78-page report by an Investigating Officer, Bridget Stockwell ("the Stockwell Report").
  43. The Stockwell Report upheld a number of grounds of complaint: that there was no follow up to the initial meeting with the Head of Learning Disability, Health and Social Care; that Mr & Mrs Palmer were not told what their rights were or what to expect from the involvement of the Adult Social Care Services; that some of the services offered Adrian were inappropriate; that Adrian was not offered the option of direct payments in lieu of organised services; and that there was nothing to confirm changes made to Adrian's risk assessment following the CPS decision not to pursue the abuse allegation against Murphy.
  44. The report made a number of recommendations, including that there should be an internal review of the case to consider the involvement of adult social care and any lessons that could be learned and applied (Recommendation 5.3); that the Council consider whether a specialist team or service should be available to meet the needs of those with Asperger's Syndrome (Recommendation 5.4), and whether any further training was required for those social workers who work with those who suffer from Asperger's Syndrome or autism (Recommendation 5.5).
  45. This was a lengthy report, and on its face it dealt comprehensively with the complaints that had been made. Mrs Palmer and her son did not proceed with the complaint beyond that Stage 2.
  46. Despite Recommendation 5.3, the Council did not in fact conduct any further review following the report. At a meeting on 23 September 2009, the Council's Serious Case Review Sub-Committee recorded that, in their view, "the revised safeguarding procedures and serious case review procedures now in place were robust, that Adult Protection had flagged concerns to the head of service both before and after Adrian's death and that nothing would be gained by holding a wider [Serious Case Review] type review now as so much has changed in terms of services and processes." They also noted that a new service was being commissioned for people with Asperger's Syndrome, and "the needs of vulnerable adults were being addressed under the Choice and Control agenda" (letter to the Local Government Ombudsman 4 December 2009).
  47. In addition to those two reports (and, of course, the criminal trials), Mr & Mrs Palmer have commenced civil proceedings in Central London County Court against the Police Force, the CPS and the Council seeking damages of £50,000-100,000 and declarations under the Human Rights Act 1998, the Disability Discrimination Act 1995, and in negligence and misfeasance in public office. That claim is currently stayed pending the resolution of any resumed inquest. However, Mr & Mrs Palmer seem intent on pursuing this claim at the appropriate time: in the application for a stay dated 21 December 2009, their solicitor described the claim as a "very serious and important claim under the Human Rights Act and Disability Discrimination Act in relation to the state's failure to protect Adrian Palmer". In her statement in support of the recent application for a protective costs order, Mrs Palmer said:
  48. "... [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."
  49. Mr Stephen Palmer has also made a complaint about the Council to the Local Government Ombudsman, who has indicated that he will not pursue the complaint whilst civil proceedings are pending.
  50. The Law

  51. The relevant convention and statutory provisions are as follows.
  52. Article 2(1) of the European Convention on Human Rights (imported into domestic law by the Human Rights Act 1998) provides: "Everyone's right to life shall be protected by law…".
  53. That simply phrased article imposes a range of obligations on state authorities (Rabone v Pennine Care NHS Trust [2010] EWCA Civ 698 at [46] per Jackson LJ). A good starting point for consideration of these various obligations is R (Amin) v Secretary of State for the Home Department [2002] EWCA Civ 390; [2003] QB 581 at [1], in which Lord Woolf CJ said:
  54. "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.

  55. As Lord Woolf indicated, the substantive duty requires a state not only to refrain from the intentional taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction. That duty can itself be broken down into two distinct obligations, namely (i) a general obligation owed to all those within its jurisdiction and (ii) an obligation to take special measures to protect an individual from some particular threat to his or her life.
  56. In respect of the general obligation, article 2 requires a state to have in place a structure of laws that will help to protect life. It imposes on a state an obligation:
  57. "... 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 [2004] UKHL 10; [2004] 2 AC 182 at [2] per Lord Bingham of Cornhill; see also Savage v South Essex NHS Foundation Trust [2008] UKHL 74; [2009] 1 AC 681 at [18] per Lord Rodger of Earlsferry).
  58. Such a framework includes (i) "... effective criminal law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such machinery" (Osman v United Kingdom (1998) 29 EHRR 245 at paragraph 115); and (ii) provisions for the regulation of hospitals for the protection of their patients' lives, "ensuring that competent staff are recruited, that high professional standards are maintained and that suitable systems of working are put in place" (Savage at [44]-[45] per Lord Rodger), whether they relate to (e.g.) the triage system (R (Takhoushis) v HM Coroner for Inner North London [2005] EWCA Civ 1440; [2006] 1 WLR 461) or the operational systems of the ambulance service (R (Humberstone) v Legal Services Commission [2010] EWCA 1479).
  59. Where appropriate and effective systems are in place, individual negligence will not engage article 2. Whether particular failings are systemic or not may be a challenging question to answer on the facts in a particular case. Where there is a substantive failure to implement a system, or a concerted cover-up of gross negligence (as in R (Khan) v Secretary of State for Health [2003] EWCA Civ 1129; [2004] 1 WLR 971), that may in itself amount to a sufficient systemic failure to engage article 2. The courts have adopted a flexible approach, but mindful of the need to avoid individual fault being dressed up as a systemic failure (Humberstone at [71] per Janet Smith LJ).
  60. Where article 2 requires proper systems for the protection of life to be in place, if and insofar the state fails to put such systems in place and death in fact results, there is a breach of article 2. Such a breach is not dependent upon it being shown that there was any particular risk to the particular individual. The breach arises from the systemic failing (see Savage at [31] per Lord Rodger).
  61. Article 2 imposes high obligations on the state, and therefore the substantive obligation focuses on the general duty on a state to impose systems to protect the lives of those in its jurisdiction. However, even where there is no breach of this general duty, a state may have an obligation to take special measures to protect a particular individual from some particular threat to his or her life (usually referred to as the "operational obligation"). As established in Osman, and helpfully reiterated by Jackson LJ in Rabone (at [69]):
  62. "[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."
  63. What amounts to "a real and immediate risk to life" is necessarily context-specific, and I shall return to the requirement when I come to apply the law to the facts of this claim (see paragraphs 75 and following below). Whilst such a risk is a precondition of the operational obligation arising, there being a real and immediate risk to life is not, of itself, sufficient to give rise to that obligation, a further matter to which I shall return (see paragraphs 84 and following below).
  64. Before I turn to the investigatory obligation – the obligation on a state to investigate a death – it would be helpful briefly to refer to the relevant domestic coronial law.
  65. By section 8(1) of the Coroners Act 1988, a coroner's inquest must be held where there is reasonable cause to suspect that a person whose body is lying in the coroner's district has died a violent or unnatural death. By section 11(5)(b)(ii) and rule 36 of the Coroners Rules 1984, the inquest must be directed to ascertain "how, when and where the deceased came by his death", and no other matter.
  66. Section 16(3) governs the resumption of an inquest following the conclusion of criminal proceedings:
  67. "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.

  68. Where a death has been caused by an arguable breach of the substantive obligations of article 2, article 2 imposes upon the state a duty to investigate that death. There was some debate before me as to the arguability threshold, but I do not find that issue difficult: "arguable" is anything more than "fanciful". It is a low threshold.
  69. Where that threshold is reached, whilst the Convention does not adopt a prescriptive approach to the form of investigation, minimum requirements have to be met. Drawing upon earlier authorities (Jordan v United Kingdom (2001) EHRR 52 at paragraph 106-109, Edwards v United Kingdom (2002) EHRR 487 at paragraphs 69-73 and R (Amin) v Secretary of State for the Home Department [2003] UKHL 51; [2004] 1 AC 632 at paragraph 25), the Court of Appeal summarised the minimum requirements in R (D) v Secretary of State for the Home Department [2006] EWCA Civ 143 at [9], thus:
  70. "(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'....".

    The Issues

  71. At the hearing before me, Mr Westgate conceded that, if there were no arguable breach by the Police Force or Council of their substantive article 2 obligations, then article 2 would impose no investigative obligation on the state; and the Coroner was not acting unlawfully in not resuming the inquest. That concession was properly made (see, e.g., R (Gentle) v The Prime Minister [2008] UKHL 20; [2008] 1 AC 1356 at [6] per Lord Bingham, at [11] per Lord Hoffman, at [40] per Lord Rodger and at [54] per Baroness Hale). The Police Force and Council submitted that there had been no arguable breach of the substantive article 2 obligations; but, if there were, then the investigations and proceedings already conducted would be sufficient to satisfy that obligation (i.e. they amount to an adequate article 2 investigation).
  72. There are, consequently, three issues for determination in this claim, namely:
  73. (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?

  74. I shall deal with those issues in turn.
  75. The General Duty Issue: The Council

  76. Mr Westgate submitted that the Council had a general duty under article 2 to have in place appropriate systems to protect the lives of those with Asperger's Syndrome from the risk from third parties. The duty arises because people with the syndrome are particularly vulnerable: they are less able to recognise that they are at risk from others, and less able to understand that their own behaviour might lead others to harm them. He produced data to support his contention that disabled people, and particularly sufferers from Asperger's Syndrome, are more likely to be the victims of violence and especially escalating violence. In particular, Mr Westgate submitted that the Council arguably failed to have systems in place for taking steps to protect someone with Asperger's Syndrome who makes an allegation of abuse, especially when that allegation is not pursued. In the event, the Council did not review Adrian's needs after the CPS decided not to prosecute Murphy; nor did they investigate the threatening phone calls or consider whether they posed a threat to Adrian's safety; nor did they liaise with the police about precautions that ought to be put into place to protect Adrian from Murphy. These were (it was submitted) systemic failings: these steps were not taken because of a failure of the Council to have proper systems in place.
  77. Those submissions require one to step back for a moment, and consider the statutory obligations of a social services authority such as the Council. An authority's role is to assess an applicant's needs for community care services, and, where the applicant is eligible, to provide services to cater for those needs. Of course, most if not all applicants for welfare assistance are likely to be vulnerable to an extent – and, I accept, those with Asperger's Syndrome have peculiar vulnerabilities – and vulnerabilities may lead to welfare needs. However, the public authority with the positive duty to protect individuals from criminal assaults is the relevant Police Force, not the local authority – which does not have the resources and means, nor (importantly) the obligation, to prevent crimes of violence (Mitchell v Glasgow City Council [2009] UKHL 11; [2009] 1 AC 874 at [68]-[70] per Lord Hope).
  78. The Council's statutory obligation to Adrian was to assess his needs for community care services (under section 47 of the National Health Service and Community Care Act 1990), and to provide the services which the identified needs called for (under the welfare arrangements of section 29 of the National Assistance Act 1948, and section 2 of the Chronically Sick and Disabled Persons Act 1970 which expressly includes, within "section 29 services", the provision of practical assistance for an individual in his home). By paragraph 2 of directions made under section 29 (Appendix 2 to the Department of Health Circular LAC (1993) 10), the Secretary of State required local authorities, such as the Council, to make arrangements in relation to persons in their area to provide a social work service, including facilities for social rehabilitation and adjustment to disability including assistance in overcoming limitations in communication. He also provided local authorities with social services responsibilities with a detailed framework for determining eligibility for adult social care (Department of Health Circular LAC (2002) 13, "Fair Access to Care Services").
  79. The Secretary of State provided further guidance on developing and implementing multi-agency policies and procedures to protect vulnerable adults from abuse ("No Secrets"), issued under section 7 of the Local Authority Social Services Act 1970 such that an authority was required to act under it. Paragraph 1.4 of this guidance indicates that the local authority should play a co-ordinating role in developing local policies and procedures for the protection of vulnerable adults from abuse: and paragraph 6.19 indicates that, once the facts in relation to an allegation of abuse have been established, an assessment of the needs of the abused adult will need to be made, a process requiring a joint discussion. The Council responded to the guidance in a 200-page document, prepared on behalf of its Vulnerable Adults Protection Committee in consultation with other statutory bodies (including the police) and users. There are Practice Guidelines attached, including one relating to the police (Practice Guideline No 15).
  80. The steps that the Council in fact took to assess and then provide for Adrian's needs are well-illustrated in Appendix 1 to the Stockwell Report, which comprises a detailed chronology compiled mainly from entries in the social services case files. It refers to very considerable interaction between the assigned social worker, a psychologist, and Adrian (and Mr & Mrs Palmer). It refers to the first adult care assessment of Adrian at the end of 2004, and several reviews concerning mainly issues of funding and Adrian's wishes for the future, before the March 2006 care plan to which I have already referred (see paragraph 27 above). That care plan identified risks, including the risk that Adrian might place himself in risky situations, especially after he had drunk alcohol. That issue was to be addressed by psychological support, attendance at the People's Skills Group and regular supervision with Adrian and his grandparents to identify areas of concern. The risk of Adrian engaging in criminal behaviour was to be addressed by regular supervision and telephone calls. The risk of bullying and exploitation, if he stayed out late, was also identified. Any such incidents were to be reported to the police. A review of the care plan was proposed for the end of May 2006, i.e. after 2 months. In the meantime, the social worker worked at applying for further hours of support, with some success: an additional 12 hours were obtained to start in June (see paragraph 29 above).
  81. In my judgment, attractive as the submission was put by Mr Westgate, the contention that the Council arguably breached its obligation to have systems in place to protect members of the public such as Adrian is not made good, for the following reasons.
  82. (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 [66]). 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 [66]). 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.

  83. The truth is that these submissions are, in substance, complaints about individual failings within a state-implemented system. In my judgment, they fall far short of showing any systemic failure on the part of the Council sufficient to engage article 2.
  84. The General Duty Issue: The Police Force

  85. In similar vein, Mr Westgate submitted that the Police Force breached the general duty to have systems in place to protect individuals from threats to life by third parties, in particular because the systems it did have in place for investigating crimes insufficiently took into account the disability of someone suffering from Asperger's Syndrome, particularly if that person is making an allegation of a crime.
  86. I am afraid I find this submission no more compelling than that made in respect of the alleged breach of the general duty by the Council. I will come to the operational duty shortly; but, as the authorities make clear, one purpose of the general duty under article 2 is to ensure that every state provides a functioning Police Force and effective judicial system that will provide a minimum standard of criminal law protection for the life of those in the jurisdiction of the state. It is not the purpose of the general duty to address the specific needs of particular groups, unless the systems operate effectively to bar equal access to the criminal justice system for that group. That is what happened with regard to the victims of domestic violence in Turkey, in Opuz (see paragraph 70(v) above). The court found that a number of failings in the police/judicial systems in Turkey (e.g. delays in granting protective injunctions to women, the stigmatising of domestic violence victims by the police, the failure to implement key protective legislation and "unintentional... judicial passivity": see paragraphs 193-200) meant that victims of domestic violence had no effective redress and aggressors in the home could act with impunity. That is far from the position in this claim, where there were policies and procedures in place to deal with vulnerable victims, including the presence of an appropriate adult at a vulnerable witness interview, and a lengthy policy and procedures document as to how various authorities should work together to protect vulnerable people who are or may have been the subject of abuse; and where Murphy was tried, twice, for the murder of Adrian, and eventually convicted of his manslaughter.
  87. Many of the comments made above in relation to the general duty and the Council equally apply here. Article 2 does not require systems that ensure that every police officer is trained to deal with every psychiatric and psychological condition; nor is it a requirement that there be specific police systems to deal with those suffering specifically from Asperger's Syndrome. The complaints procedure under the Police Reform Act forms part of the systems that are in place. Crucially, the complaints are again, in my judgment, criticisms of individual failings that were addressed in the IPCC report and by the Chief Constable following that report; and do not bear upon the sufficiency of the systems themselves. They concern, if anything, allegations of a breach of the operational duty, to which I now turn.
  88. The Operational Duty Issue: The Police Force

  89. The operational duty falling on a state authority is an obligation to an individual to take all reasonable steps to avoid a real and immediate risk to life of which the authority has or ought to have knowledge. It is uncontroversial that the police service owes such a duty to an individual, where that authority knows or ought to have known of a threat to that individual's life from a third party.
  90. Mr Westgate submitted that a social services authority owed a similar duty – a submission to which I shall return – and, in assessing whether the relevant state authorities (the Police Force, the CPS, the social services authority) knew or ought to have known of the risk to an individual's life posed by a third party, their actual and constructive knowledge should be aggregated, because the question here is not whether any particular remedy should be granted against a specific public body but rather whether the state as a whole is responsible for a breach of article 2. I am unpersuaded that the authority relied upon by Mr Westgate (Ataman v Turkey (2006) (Application No 26353/99) in fact supports that proposition – it appears to consider aggregation of state authorities' information in the context of the adequacy of investigation following the conscript's death rather than in consideration of whether there had at the relevant time been a "real and immediate risk" to his life – but, without deciding the point, for the purposes of this claim and in the Claimants' favour, I shall consider the question of "real and immediate risk" in the context of the knowledge of the Police Force and the Council taken together.
  91. Mr Westgate submitted that both authorities ought to have been aware of the real and immediate risk to Adrian's life posed by Murphy, in the light of what they knew/ought to have known of each of the two young men, and the history of dealings between them. In particular:
  92. (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 [2002] EWHC 1738 (Admin) at [38] 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.

  93. However, Mr Westgate has failed to persuade me that there was a real and immediate risk to Adrian's life from Murphy, about which the Police Force and/or the Council knew or ought to have known.
  94. In coming to that conclusion, I have borne the following points in mind:
  95. (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 [73]); 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 [2008] UKHL 50; [2009] 1 AC 225 at [69] per Lord Hope), and a "stiff hurdle" to overcome (Rabone at [70]-[71] 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 [32] per Lord Bingham).

  96. Turning to the facts of this case:
  97. (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.

  98. As I have said, it is important to guard against hindsight; and, given that we know that on 20 May 2006 Adrian did die at the hands of Murphy, it is only too easy now to look back and attempt to identify events as potential "warning signs". However, I am afraid I do not consider the matters relied upon by Mr Westgate as remotely approaching sufficient to find that the Police Force and/or the Council, on the evidence that they had or should have had at the time, ought to have been aware of a risk to Adrian's life from Murphy. Whatever faults there may have been in the manner in which the police investigated both Adrian's rape allegation and the threats against him, or in the manner in which the Council performed their statutory obligations to him, Adrian's sad and tragic death at the hands of Murphy on 20 May 2006 simply could not sensibly or arguably have been foreseen. In my judgment, that would have been the case even if the authorities had, in every particular, performed as they ought to have done.
  99. In the absence of a real and immediate risk to Adrian's life, the Police Force owed him no article 2 operational duty.
  100. The Operational Duty Issue: The Council

  101. Nor, for the same reasons, did the Council. As I have found, on the basis of the information that the authorities had or ought to have had available, it cannot be said that either ought to have been aware of a real and immediate risk to Adrian's life.
  102. However, in the case of the Council, there is a further reason why it did not owe such a duty to Adrian.
  103. As I have already indicated (paragraph 56 above), the state does not owe a positive obligation to take preventative operational measures to protect the lives of everyone in its jurisdiction who is at "real and immediate risk" of death, but only where there is an additional element that requires the additional obligation to be imposed. As Jackson LJ put it in Rabone (at [62]):
  104. "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."
  105. "The fact that the individual concerned is detained by the state" is given by Jackson LJ as simply an example of the additional element. However, leaving aside cases where the police are or ought to be aware that someone's life is at risk from a particular person (to which I shall return shortly), the required additional element has been confined to cases in which the state has effective, entire and non-voluntary control over an individual because that individual is detained by the state in prison (Keenan v United Kingdom (2001) 33 EHRR 38) or in hospital (Savage), or because the individual is a conscripted soldier (Ataman v Turkey (2006) (Application No 46252/99)). No such obligation is owed where there is less state control or where there is an element of agreement to that control, e.g. in respect of a hospital out-patient (Powell v United Kingdom (2000) 30 EHRR CD 362), or a voluntary patient under the Mental Health Act (Rabone), or a non-conscripted soldier (R (Smith) v Oxfordshire Deputy Coroner [2010] UKSC 29; [2010] 3 WLR 223). Mr Westgate sought to persuade me that those cases are distinguishable from this, because they largely concern the risk of suicide etc rather than the risk to life from a third party: but the hallmark of the cases where an article 2 operational obligation has been found to exist is not the precise nature of the risk to life, but the entirety of the control exerted by the state as a result of compulsion. The analysis and conclusion of Jackson LJ in Part 5 of his judgment in Rabone, with which I respectfully agree, is fatal to Mr Westgate's submission.
  106. Nor, for the reasons set out in paragraph 70(vi) above, do I consider the supervision order imposed upon Adrian anything like sufficient in terms of state control to bring him within the scope of the cases akin to state detention.
  107. Finally, Mr Westgate submitted that the obligation to protect an individual from a known threat to his life from a third party was not restricted to the police: in certain circumstances, including the circumstances of this case, other public authorities including a social services authority could be subject to this obligation.
  108. In its simplest and most general form, that submission has weight; but I do not agree with that analysis as applied to this case. Where a state (normally – but, Mr Westgate submits, not necessarily – the police) is or ought to be aware of a real and immediate risk to an individual's life from a third party, then the state has an obligation to take all reasonable steps to protect the life of that individual. How a state takes those steps is of course a matter for it. In this jurisdiction, the primary duty to prevent crime falls on the police. A local authority does not, simply by virtue of its community care service obligations, assume responsibility for the safety of those to whom it provides welfare services from criminal offences. I have already referred to this (see paragraph 66 above). As Lord Rodger said in Mitchell (at [70]):
  109. "[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 [68] to similar effect).
  110. Those comments were made within the context of a local authority landlord; but the focus of them is upon the police as the authority with the obligation and resources to prevent crime. They are equally applicable to this case, where the Council is the relevant social services authority. Social services authorities do not have the resources, or obligation, to prevent violent crime: they have the obligation to provide eligible applicants with community care services, which may include support to those in need (including the abused), but does not include a specific obligation to prevent crime.
  111. In support of this submission, Mr Westgate relied upon the European Court of Human Rights case of Tomašic v Croatia (2009) (Application 46598/06). In August 2006, MM shot dead his former partner, their daughter and himself, having been released from prison the previous month. Prior to his prison term, he had made threats to kill his family. The court held that the Croatian authorities were aware of the threats, and that they were serious, and article 2 required them to take all reasonable steps to protect the family. The relevant Croatian regulations for the compulsory psychiatric treatment of dangerous offenders were, the court held, inadequate (paragraph 57). I do not find the ratio of this case easy to understand. Although there is language of an operational duty elsewhere in the judgment, the court appears to have made a finding of systemic failure. The systemic nature of the failure is also stressed later in the judgment (e.g. at paragraph 64). It may be that the true ratio of the case is therefore in terms of a general, systemic failure, as opposed to a breach of the operational duty. In any event, having considered this case, it does not persuade me to deviate from the reasoning of Mitchell, and the analysis above.
  112. For those reasons too, in my judgment, the Council did not owe an operational duty to Adrian in the circumstances of this case.
  113. The Scope of Investigation Issue

  114. Because of my findings in relation to the absence of any arguable breach of article 2 by either the Police Force or the Council, it is unnecessary for me to make any findings in relation to the adequacy of the investigations and procedures that have taken place, had there been a breach. Mr Westgate conceded that, in the absence of an arguable breach of article 2, there is no obligation to hold an enhanced independent investigation into Adrian's death – and, in those circumstances, the Coroner did not act unlawfully in refusing to resume the inquest.
  115. However, had I found there to have been an arguable breach, I would have found the submissions of Miss Leek compelling, to the effect that the totality of the investigations and procedures to date were in any event adequate to satisfy any article 2 obligation to investigate Adrian's death.
  116. In determining whether the state has complied with its investigative obligation under article 2, "the range of remedies available under the judicial system (criminal, civil and possibly disciplinary) can be sufficient to discharge it…. [T]he totality of available procedures, including most obviously the possibility of a civil claim in negligence, must be looked at..." (Goodson v HM Coroner for Bedfordshire [2004] EWHC 2931 (Admin) at paragraph 59 (iv) and (vi), per Richards J (as he then was)).
  117. With the requirements of an enhanced investigation in mind (see paragraph 61 above), the relevant facts surrounding Adrian's death have been fully ascertained, insofar as they can be ascertained, by means of the IPCC and Stockwell investigations and reports. The IPCC investigation in particular was independent and instigated at the state's initiative; and Adrian's next-of-kin were able to play a part in both investigations, through giving evidence and making representations. That involvement may not have been as great as they would have wished, but it seems to me to have been sufficient to safeguard their legitimate interests as next-of-kin. A number of complaints about the manner in which the police and the Council conducted themselves were found to be substantiated; recommendations were made and the Police Force and Council responded to those recommendations. The results of the two investigations have been published. Systems were reviewed and improved, and individuals were given management advice.
  118. In the circumstances, the following requirements of any article 2 investigation have been fulfilled:
  119. (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.

  120. The question is whether there is any matter outstanding that an inquest would or might be able to address. In the circumstances, it is difficult to see what matters could be explored in any resumed inquest, that have not already been properly explored in the criminal trials, the IPCC investigation and the Stockwell Investigation. Whilst, where an inquest is necessary for the purposes of satisfying the state's investigatory obligation under article 2, "how" means "by what means and in what circumstances" (R (Middleton) v West Somerset Coroner [2004] UKHL 10; [2004] 2 AC 182), the scope of an inquest is nevertheless limited in scope by section 11(5)(b)(ii) of the Coroners' Act 1988 and rule 36 of the Coroners Rules 1984 – the inquest must be directed to ascertain "how, when and where the deceased came by his death", and no other matter (see paragraph 57 above).
  121. I do not accept Mr Westgate's submission that an article 2 investigation, to be sufficient, must make findings in relation to causation of death. The IPCC investigation concluded that it was not possible to say that, had the alleged rape and threats been properly investigated, the outcome in terms of Adrian's death would not have been the same. Findings of causation are not always possible; and an inquest is not always the best or most appropriate forum for causation to be considered. The limitations on the value of jury views at an inquest have been noted (see, e.g., the comments of Pill LJ in Scholes v Secretary of State for the Home Department [2006] EWCA Civ 1343; [2006] HRLR 44 at [69]-[70]), and I am able to take into account, not only the investigations which have already taken place, but also those open to be taken in the future. The civil proceedings commenced by Mr & Mrs Palmer will have to consider causation (and indeed whether there has been any breach of article 2). That is an appropriate forum for such matters to be considered and determined. In my view, it is not necessary for them to be considered at an enhanced inquest.
  122. In coming to that view, I give due deference to the view of the Coroner as expressed in his letter of 26 May 2010, in which he gave his decision not to resume the inquest, the decision of course the Claimants now seek to challenge. Whether the Police Force and/or the Council arguably breached article 2 is a matter which I have to reconsider afresh, as I have done: I only note that the Coroner's approach (to consider whether there was an arguable breach) appears to me to be legally correct, and his conclusion (that there was no arguable breach) coincides with my own. However, in considering whether a resumed enhanced inquest would serve any purpose is a matter which the Coroner, in his specialised jurisdiction, has particular experience and expertise. Suffice it here to say that I take comfort from the fact that he – like me – considers that it would not serve any useful purpose, there being no outstanding relevant questions.
  123. For those brief reasons, had I found that the authorities had arguably breached the substantive obligations of article 2, I would have found that the investigations and procedures that have already taken place would have been sufficient to have satisfied the article 2 investigatory obligation on the state.
  124. Conclusion

  125. It has been said, with justification, that the boundaries of the obligations imposed on a state by article 2 to conduct an investigation into a death "are not in all respects clear" (Scholes at [79], per Arden LJ). The jurisprudence surrounding article 2 is often challenging, and sometimes less coherent than it might be. However, with due respect to the helpful submissions of Counsel in this case, in my judgment this case does not fall to be decided on legal argument. On the facts of this case, despite his ingenuity and fortitude, Mr Westgate has failed to persuade me that the relevant state authorities – the Police Force and the Council – arguably breached any substantive obligation under article 2, and failed by some appreciable margin. In my judgment, this claim fails, not on any fine legal point, but substantially on its facts.
  126. In saying that, it should not be thought that I do not sympathise with Adrian's family, and particularly Mr & Mrs Palmer. They are deserving of much sympathy, not only for their loss of a loved grandson, but also for their understandable desire to find out as much as they can about the circumstances of his death and to ensure, so far as possible, that those tragic circumstances do not recur. They have a commendable wish to ensure that public authorities are sensitive to the needs of those who suffer from Asperger's Syndrome. However, as Lord Hope marked in Smith (at [107]), it is important that the law maintains its objectivity, and does not out of sympathy, no matter how well-deserved, impose substantive burdens upon the state beyond the true, well-defined ambit of article 2. Mr & Mrs Palmer have other courses to pursue, if they wish to do so, including the civil proceedings they have commenced.
  127. However, for the reasons I have given, I find that neither the Police Force nor the Council arguably breached the substantive obligations imposed by article 2; and, consequently, the Coroner was not obliged by article 2 to resume the inquest into Adrian Palmer's death. His decision not to resume the inquest was therefore within his discretion under section 16(3) of the Coroners' Act 1988, and was lawful. This challenge is therefore dismissed.


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URL: http://www.bailii.org/ew/cases/EWHC/Admin/2011/1453.html