Pekkelo, R (on the application of) v HM Coroner for Central & South East Kent [2006] EWHC 1265 (Admin)

Case No CO/5946/2005[2006] EWHC 1265 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LL
07/06/2006
Before
MR JUSTICE HODGE
Between
The Queen on the application of PekkeloClaimantHM Coroner For Central & South East KentDefendant
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Ian Macdonald QC (instructed by Christian Khan Solicitors) for ClaimantNo representation for Defendant
JudgmentMr Justice Hodge :Date 2006-06-07
[1]Mrs Elmas Ozmico left Turkey in the beginning of July 2003. She travelled for about 8 or 9 days in a lorry with her children and a number of others. On her arrival in Dover on 8th July in the evening, she claimed asylum in the UK. She and her children were detained at about 10pm that night. She was seen by an immigration officer and an interpreter just before 10am the following morning. It was apparent then she was not well.[2]It was not until just before 5pm on the evening of the 9th July that Mrs Ozmico was admitted to hospital. She was diagnosed as having necrotising fasciitis known as Fournier’s gangrene. This is a rare but severe infection. It is likely to have been caused as a complication of a peri-anal tear. She received extensive treatment at the William Harvey hospital, Ashford. However unhappily on 13th July 2003 she died. She was then aged 43.[3]The cause of death was septicaemia due to ischio-rectal abscess and septic hepatosplenomegaly. Mrs Ozmico was survived by her husband. He was at that time and remains in the UK. He is the claimant in these proceedings.

Representation

[4]The claimant is represented by Ian Macdonald QC. The inquest challenged in these proceedings was conducted by Roger Hatch acting as assistant deputy coroner for Central and South East Kent on behalf of the defendant. Mr Hatch is himself HM Coroner for North West Kent. A note was submitted on his behalf to the Court. It referred the Court to a number of authorities. It indicated that the defendant did not intend to enter a formal response or to take any part in the proceedings and a neutral position was adopted. The note confirmed that the coroner’s summing up and directions to the jury were properly reported in the transcript before the Court. Mr Hatch did in fact attend Court to observe the hearing but took no part in the proceedings.[5]There were a number of parties represented before the coroner besides the claimant. All appeared by counsel. The parties were the Immigration Service, who had been involved in seeing and handling the deceased’s claim on 8th, 9th July 2003; Wackenhut UK Ltd who had held the deceased in their holding centre at Dover overnight; the Health Protection Agency; the Dover Harbour Board and Port of Dover Police; and the East Kent NHS Hospital Trust.[6]None of these parties attended or were represented at the hearing of this application. Mr Macdonald submitted a full skeleton argument, a bundle of authorities and argued the case very clearly on behalf of the claimant. There were no opposing submissions for the Court to consider.

The inquest

[7]The deceased had been detained under the Immigration Acts at about 10pm on 8th July 2003. She was given temporary admission to the UK around 4pm the following day and then shortly thereafter admitted to hospital. It was clear she had been noted as unwell by about 10am on 9th July so, as a minimum, during the time she was detained. The infection from which she died developed very rapidly. Questions no doubt arose as to whether earlier treatment might have resulted in a different outcome. Hence an inquest was held.[8]The inquest was heard over a number of days in May 2005 in Dover by the Deputy Assistant Coroner sitting with a jury. On 17th May 2005, the jury having heard evidence and the summing up by the coroner returned a verdict that the deceased died of natural causes. The jury had heard evidence from immigration officers, from staff of Wackenhut, from police officers, from charity workers, from doctors and staff at the William Harvey hospital and from two medical experts instructed for the coroner. They were Professor AM Geddes a consultant physician in infectious diseases and at the time an Emeritus Professor of Infection in the School of Medicine of the University of Birmingham and Mr PR Hawley M.S.FRCS, a colorectal consultant surgeon with particular expertise in the operative treatment of the illness of which Mrs Ozmico died.

Judicial review claim

[9]The judicial review proceedings were commenced on 1st September 2005. The application for permission to proceed was granted by Calvert-Smith J on 20th October 2005.[10]The detailed grounds show the issues raised by this claim for judicial review and are: a) Whether the coroner erred in law in his legal direction as to the requirements that had to be met before “neglect” be found by the jury; b) Whether the coroner erred in law in his approach to the manner in which he elicited the jury’s conclusion on the central issues, most notably in relation to narrative verdicts.[11]Mr Macdonald argued on behalf of the claimant that the coroner’s direction to the jury was wrong in law in relation to the basis on which a finding of “neglect” might be made and he was wrong not to require the jury to give a narrative verdict. A series of questions to put to the jury had been agreed between the various counsel. They were given to the coroner but he had not made use of them in his summing up nor required the jury to answer them.

Summing up – the evidence

[12]There was a dispute as to when anybody in a position of authority first knew Mrs Ozmico was ill. Her nephew who had arrived with her in the lorry from Turkey at about 10pm on 8th July gave evidence that he had requested a doctor. He had used a Turkish word which is similar to the English word. The evidence from the immigration officers was that Mrs Ozmico appeared to be well and made no complaints. The coroner told the jury that a decision on this issue was a matter for them.[13]It was accepted on all sides that Mrs Ozmico had made clear to the Immigration Service’s officials just before 10am on the morning of 9th July that she was feeling ill. She showed her thigh as swollen and red to a female chief immigration officer. Wackenhut declined to take the deceased to hospital. The Port of Dover Police sent two first aiders who did not identify Mrs Ozmico’s problem as being an emergency. The Port medical inspector declined to see the deceased. In the late afternoon a further chief immigration officer granted the deceased temporary permission to enter the UK on the basis that she could go to the charity Migrant Helpline who had a nurse who might assist. That organisation arranged an ambulance which took Mrs Ozmico to hospital. There is no suggestion that the treatment she received in hospital was anything other than appropriate.[14]Mr Macdonald for the claimant argues there was a systemic failure by the Immigration Services in this case. He contends it started with the failure, as he puts it, to recognise the deceased was ill when she arrived on the evening of 8th July. He accepts there was a conflict of evidence around that issue. The summing up makes clear that that conflict was placed before the jury. He argues, however that it is clear that there was a systemic failure in responding to the deceased’s ill health in the period between her first seeing the chief immigration officer with an interpreter shortly before 10am on 9th July and the admission to hospital just before 5pm that evening. The whole period from 10pm on 8th July to 5pm on 9th July was, he says, arguably, “neglect” and the period from 10am to 5pm on 9th July was certainly “neglect” in the sense of “a gross failure to provide basic medical attention”.[15]There was clear evidence from the deceased’s nephew who had been with her in the lorry that she had a boil on her bottom some three to four days before arriving in the UK. The medical evidence suggested that that might well have been the first signs of the gangrene which infected the deceased and eventually caused her death.[16]The evidence from the two medical experts differed. Professor Geddes suggested that the deceased had perhaps a 45% chance of survival at the moment she went into hospital. Had she gone in at about the time the illness was clearly accepted as existing, around 10am on 9th July, the chances of her survival would, in his view, have increased to something over a 50% chance.[17]Mr Hawley, the consultant surgeon with considerable experience in the gangrene condition from which the deceased died, gave clear evidence in response to questions from Mr Macdonald:
“Had she gone in on the early morning of the 9th, I think her prognosis would have been no different than it was. I think she would have died. Statistically the prognosis may have been a little better. It may not have been 70% it may have been 65% chance of survival. I think for her to have had a realistic chance of cure, it would have been 48 hours before.”
The surgeon justified that view on the basis of the deceased having a very low white cell count and people who survived would have a high white cell count.[18]Again these differences were placed before the jury by the coroner in his summing up.[19]Put starkly, the medical evidence before the jury can be summarised as follows: Professor Geddes believed there might have been a reasonable chance of survival had the deceased been in hospital and receiving all relevant treatment from about the time the illness was first noticed and accepted by the Immigration Service viz. 10am on 9th July. Mr Hawley’s view was that the deceased would need to have been in hospital sometime before she arrived in England to have had any chance of survival. This difference was before the jury and highlighted by the coroner in his summing up. If they accepted the thrust of Mr Hawley’s evidence the failures of the Immigration Service to act promptly when they recognised the need for medical intervention around 10am on 9th July would have made no difference.

Neglect

[20]Neglect in the context of the work of coroners is defined in R v Coroner for North Humberside and Scunthorpe ex parte Jamieson [1995] QB1 where Sir Thomas Bingham MR stated in his general conclusions:
“(9) Neglect in this context means a gross failure to provide adequate nourishment or liquid, or provide or procure basic medical attention or shelter or warmth for someone in a dependent position (because of youth, age, illness or incarceration) who cannot provide it for himself. Failure to provide medical attention for a dependent person whose physical condition is such as to show that he obviously needs it may amount to neglect. So it may be if it is the dependent person’s mental condition which obviously calls for medical attention (as it would, for example, if a mental nurse observed that a patient had a propensity to swallow razor blades and failed to report this propensity to a doctor, in a case where the patient had no intention to cause himself injury but did thereafter swallow razor blades with fatal results). In both cases the crucial consideration will be what the dependent person’s condition whether physical or mental appeared to be. … (12) Neither neglect nor self neglect should ever form part of any verdict unless a clear and direct causal connection is established between the conduct so described and the cause of death.”
[21]Mr Macdonald argues that this is a clear case of “neglect” in the sense provided for in Jamieson. Certainly from about 10am there was a “gross failure to provide … basic medical attention …” to the deceased. But “the crucial consideration will be what the dependent person’s condition, whether physical or mental appeared to be”. It was before the jury that the state of the deceased’s medical condition was never clear while she was held by the Immigration Services but they clearly accepted she needed some help. First aiders were summoned, various authorities refused to take the deceased to hospital or to call an ambulance, although that did eventually happen.[22]It will have been clear to the jury that attempts, although poor attempts, were being made to provide some form of medical help. It was also before the jury in the evidence of Mr Hawley that however bad the conduct by the Immigration Services, the delay did not cause the death as the deceased would have in any event died, unless she had been into hospital sometime before she arrived in the UK. It is in that context that the direction to the jury needs to be considered.

Jury direction on neglect

[23]It appears to have been accepted by all parties before the coroner that the jury would return a verdict that the deceased died from natural causes. It was in addition contended for by Mr Macdonald on behalf of the deceased’s family that the jury should be invited to add the words to that verdict “due to neglect”. The coroner agreed to put that issue to the jury.[24]In these proceedings it is said that the coroner went wrong in law in his directions to the jury in relation to the meaning of the word “neglect” in this context.[25]The coroner first indicated to the jury that they “may take the view that Mrs Ozmico died from natural causes”. He went on to say “it is also open to you and for you to consider as to whether you should add to natural causes that it was as a result of neglect”. The coroner then again reminded the jury of the history of the case including the various failures of the authorities to act appropriately from and after 10am on 9th July plus the views of the two medical experts. He went on to say:
“So far as you adding the phrase ‘due to neglect’ to a verdict of natural causes, there has to be gross failure to provide or procure basic medical attention for somebody in a dependent position because (in this case) of illness she cannot provide it for herself. But it must be objectively apparent to the relevant staff that the person was in need of medical attention. I suppose you have to ask yourself whether in these circumstances and suffering from a boil that would be something which did require medical attention. Failure to provide medical attention for a dependent person whose physical condition is such as to show that she obviously needs it may amount to neglect but that again is a matter for you. The crucial consideration will be what the dependent person’s condition was, be it physical or mental, and how it appeared to be. Members of the jury, neglect should not ever form part of a verdict unless there is a clear and direct causal connection established between the conduct in this case of the immigration authorities, in other words the conduct that was described and the cause of death.”
[26]In my judgment that is a proper and appropriate summary of the test laid down in Jamieson. The coroner went on again to refer to the evidence of the two medical experts, to the difficulties of recognising the medical condition that the deceased suffered from and he discussed whether there was a causal connection between the conduct whilst the deceased was detained and the cause of death. He returned to the word “neglect” thereafter and said:
“To find neglect in a case you need to be satisfied that the non provision of medical attention to Mrs Ozmico and or the delay in transferring her to hospital amounted to a gross failure on the part of the immigration authorities who were directly or indirectly involved with her on 8th and 9th July 2003 and the seriousness of Mrs Ozmico’s medical condition was objectively apparent to the staff of those organisations and again the immigration authorities together with the fact that she was obviously in need of urgent medical attention. Lastly, on the balance of probabilities, Mrs Ozmico would have survived had she been transferred to hospital on 8th July 2003 or earlier on 9th July 2003. Again those are matters which I have already dealt with.”
[27]The claimant contends that the coroner erred in law in this last summary of what was needed to find “neglect”. It is said the jury should not have been directed to take into account the difficulty of the staff who had custody of Mrs Ozmico had in recognising in recognising or diagnosing her medical condition. All that was needed under Jamieson is that she needed basic medical attention. The coroner has imported a subjective test.[28]It would no doubt have been better had the coroner not further addressed the meaning of the word “neglect” having put it clearly shortly before in his summing up. The wording of the coroner’s second summary of the word “neglect” might be read as introducing a foreseeability test. But it is said in Jamieson “failure to provide medical attention for a dependent person whose physical condition is such as to show that he obviously needs it may (emphasis added) amount to neglect”. The Jamieson test must be looked at as a whole.[29]Here, it was certainly recognised by the immigration authorities at around 10am on 9th July that the deceased needed medical attention. The jury were clearly reminded of what the evidence was as to the deceased’s condition from and after 10am on 9th July. They were also reminded that whatever the position there, they had to decide there was “a clear and direct causal connection” established between the failure to obtain medical attention promptly and the cause of death.[30]Looked at in the round, I do not regard the directions of the coroner to the jury in relation to the meaning of the word “neglect” as showing an error of law. There was clear evidence that the dangerous medical condition which the deceased died of was present some days before she arrived in the UK. One of the medical experts was clearly of the view that unless the deceased had been hospitalised before she arrived in the UK she would not have survived. From 10am on 9th July there was a clear acceptance by the Immigration Service and others that there had been failures in enabling the deceased to be hospitalised. The second medical expert’s evidence was that she might well have survived had she got into hospital considerably earlier than she did. I consider it a reasonable inference from the jury’s verdict and their declining to add the phrase “due to neglect” that they preferred the evidence pointing to the view that the deceased would have died in any event even had she been hospitalised at 10am on 9th July when the failures of care by the Immigration Service started. I do not accept there is anything in the ground challenging the direction on neglect.

Article 2 of the European Convention

[31]In this case the deceased had been detained from about 10pm on 8th July 2003 until she was given temporary admission sometime after 4pm on 9th July. She was thus under the control of the Immigration Services or its agents so in effect in the custody of the State. In Sieminski v Poland (Application No. 37602/97) the European Court said:
“The procedural element contained in article 2 of the Convention imposes the minimum requirement that where a state or its agents potentially bear responsibility for loss of life, the event should be subject to an effective investigation or scrutiny which enables the facts to become known to the public, and in particular to the relatives of any victims.”
[32]This has become known as the “investigative obligation” as described by Lord Bingham in R(on the application of Amin) v Secretary of State for the Home Department [2004] 1AC 653 where Lord Bingham said, at paragraph 31, in relation to the state’s duty to investigate deaths in custody through an inquest:
“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 life of others.”
[33]Further in R (Middleton) v Coroner for the Western District of Somerset [2004] 2AC 182, paragraph 35, Lord Bingham said “discharge of the investigative obligation requires in the context of an inquest that the “how” question in section 11(5)(b)(ii) Coroners’ Act 1988 and Rule 36(1)(b) of the Coroners’ Rules 1984 is interpreted in a broader sense namely as meaning not simply “by what means” but “by what means and in what circumstances”.[34]Here, in my judgment, the inquest itself had before it all the background facts necessary to meet the investigative obligations now recognised as is imposed by Article 2. All relevant persons involved with the deceased during her time in detention gave evidence. There was a difference in the evidence given by witnesses known to the deceased and those from the authorities as to what happened when the claimant arrived in the UK at about 10pm on 8th July. But from about 10am the following morning it was recognised that the deceased needed medical attention. It was acknowledged in evidence that there were failures to respond appropriately to this need. The parties appearing before this inquest including the family of the deceased had available to them the results of a detailed investigation made by the Immigration Services into its procedures and conduct during the period of detention. That report acknowledges problems and is highly critical of various procedures. Issues arising from that report were put to the witnesses on behalf of the claimant and the failings acknowledged.[35]Mr Macdonald contends that the failure of the coroner to obtain a narrative verdict from a jury at the inquest was itself wrong in law. Lord Bingham in Middleton at paragraph 36 sets out the various means by which a coroner could elicit a jury’s conclusions so as to comply with the investigative obligation. “This will not require a change of approach in some cases where a traditional short form of verdict would be quite satisfactory, but it will call for a change of approach in others (paragraphs 30 – 31 above). In the latter class of case it must be for the coroner in the exercise of his discretion to decide how best in the particular case to illicit 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 form 22 of schedule 4 to 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 may be done by inviting the juror’s answers to factual questions put by the coroner… 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 decisions should not be disturbed by the Court unless strong grounds are shown.”[36]The parties appearing before the coroner prepared a lengthy list of questions, some thirteen in all, running over two pages. The coroner did not put these questions to the jury. At the end of his summing up he said:
“Moving on to the last alternative for you to consider, whether it is an appropriate case for a narrative verdict to be considered on the shortcomings that undoubtedly there were with the immigration authorities in dealing with this in accordance with the guidelines. You may take the view that, given the medical evidence to which I have referred on a number of occasions, that whether those guidelines were followed or whether they were not, did not in any way affect the cause of death which this lady subsequently suffered from. If however you take a different view in that respect so far as you feel that a narrative verdict is one which you would wish to adopt in the natural causes part of the conclusion then having considered your verdict and if you come to that view there will be a number of questions I can put to you to deal with and assist you in reaching a suitable wording to include as a narrative verdict.”
[37]The failure to put the questions and to obtain a narrative verdict is heavily criticised on behalf of the claimant. It is said that the coroner ignored the questions and in so doing failed to provide a means by which the jury could address the issues of “by what means and in what circumstances” did Mrs Ozmico die?[38]I do not agree. In my judgment, the jury had heard all the evidence over a seven day period. The coroner summed the position up fully. The evidence as indicated above was that the deceased had a pre-existing condition present before she arrived in the United Kingdom. The coroner said to the jury “you may take the view that, given the medical evidence to which I have referred on a number of occasions, that whether these guidelines were followed or whether they were not it did not in any way affect the cause of death which this lady subsequently suffered from”. By their verdict that is the view the jury clearly took. In my judgment, when considering the investigatory obligations under Article 2, this is a case which meets Lord Bingham’s phrase in Middleton paragraph 36:
“This will not require a change of approach in some cases where a traditional short form of verdict will be quite satisfactory.”
[39]The investigatory obligation has in my judgment been carried out in this inquest. The failings of the immigration authorities were exposed to the jury and accepted. The jury did not regard the death as having been caused or contributed to by “neglect”. It can properly be inferred that they accepted the medical evidence of Mr Hawley, the surgeon who is specialist in the highly dangerous illness from which the deceased died. In the circumstances this application is dismissed. MR RUTLEDGE: My Lord, I hope that you received the proposed grounds of appeal. MR JUSTICE HODGE: Yes. No problem with your costs order. MR RUTLEDGE: Thank you, my Lord. MR JUSTICE HODGE: I am not minded, unless you have anything additional to say -- MR RUTLEDGE: I hesitate to add any gloss to Mr MacDonald's grounds of appeal. I hope they are self-explanatory. Working backwards, they go back to the original criticism and examine the reasons given in your judgment. It really is for you to decide whether there are merits in that -- MR JUSTICE HODGE: I am not going to grant leave. You will have to go to the Court of Appeal and ask them. MR RUTLEDGE: Thank you very much, my Lord. MR JUSTICE HODGE: I hand down the judgment as well.

Cited in 1 later judgment