Lewis, R (on the application of) v HM Coroner for Mid & North Division of the County of Shropshire & Anor [2009] EWHC 661 (Admin)

[2009] EWHC 661 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 03/04/2009

Before

SIR THAYNE FORBES

Sitting as a Judge of the High Court

Case No CO/279/2007

Case No Between:

Between

THE QUEENClaimant

on the application ofClaimant

KEITH LEWISClaimant

HM CORONER FOR THE MID AND NORTH DIVISION OF THE COUNTY OF SHROPSHIREDefendant

Case No: CO/5198/2007

Between

THE QUEENClaimant

on the application ofClaimant

GWENDOLINE CALVERTClaimant

HM CORONER FOR INNER NORTH LONDONDefendant

Case No: CO/8417/2007

Between

THE QUEEN on the application ofClaimant

SUSAN WOODSClaimant

HM CORONER FOR OXFORDSHIREDefendant

(Transcript of the Handed Down Judgment of

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Paul Bowen (instructed by Bhatt Murphy Solicitors) for Claimant Keith Lewis

Hugh Southey and Adam Straw (instructed by Coninghams Solicitors)

for Claimant Gwendoline Calvert

Hugh Southey and Adam Straw (instructed by Christian Khan Solicitors)

for Claimant Susan Woods

Jonathan Hough (instructed by Legal & Democratic Services, Shropshire County Council)

for HM Coroner for the Mid and North Division of Shropshire

Jason Coppel (instructed by Legal Services, Oxfordshire County Council)

for HM Coroner for Oxfordshire

Jenni Richards and Colin Thomann (instructed by the Treasury Solicitor)

for Secretary of State for Justice

Hearing Hearing dates: 25 th, 26 th, 27 th November and (by further written submissions) 5 th December 2008

Judgment

Sir Thayne Forbes :

Introduction.

[1]These three linked applications for judicial review and/or claims under the Human Rights Act 1998 (to which applications/claims, where appropriate, I will hereafter refer respectively as JR1, JR2 and JR3) are all concerned with the rulings and/or directions made and/or given by the various coroners who conducted inquests into the deaths in custody of Karl Christopher Roy Lewis (JR1), Paul Darren Calvert (JR2) and Stephen Woods (JR3). The Defendant in each case is the Coroner who held the inquest in question and, in all three cases, the Secretary of State for Justice (“the Secretary of State”), who is responsible (inter alia) for the Prison Service, is joined as an Interested Party. On 10th April 2008, His Honour Judge Mackie QC ordered that the three applications/claims were to be heard together, with JR1 as the lead claim.

[2]A Brief Overview of JR1. In JR1, the Claimant is Keith Lewis, the father of the deceased, Karl Christopher Roy Lewis (“Karl”). Subject to one aspect of the claim (as to which, see below), on 29th June 2007 McCombe J granted permission to apply for appropriate relief by way of judicial review of the Coroner’s ruling and directions to the Jury at the inquest held, in October 2006, into Karl’s death.

[3]Shortly stated, the general circumstances relating to JR1 are these. In the early hours of the morning of 22nd January 2005, Karl was found hanging in his cell at HM YOI Stoke Heath (“YOI Stoke Heath”). He was then aged 18, having been born on 29th August 1986. A first inquest into Karl’s death commenced on 30th January 2006, but the jury was discharged on 5th February when it was discovered that several jurors had connections with parties involved in the proceedings. A second inquest (“the inquest”), conducted by Mr John Penhale Ellery (“the Coroner”), took place over a period of eight days, between 5th and 16th October 2006.

[4]The subject of the Claimant’s challenge/claim in JR1 is the Coroner’s ruling (“the ruling”), made with written reasons on 18th October 2006 (confirming an earlier oral ruling given on 12th October 2006), that the Jury could not consider questions relating to the actions of the Prison Service after Karl had been found hanging in his cell, on the grounds that the Jury’s role was limited to considering “factual questions directly relating to the cause or contribution to the cause” of death. The Coroner therefore ruled that, because there was no evidence that Karl was alive when he was found, any acts or omissions by the Prison Service thereafter could not, on the balance of probabilities, be shown to have caused or contributed to his death. Accordingly, the Jury had no jurisdiction to address those questions in their verdict.

[5]In due course, the Jury were invited to give an extended verdict by way of answers to a series of questions. In the inquisition, the Jury recorded their conclusion that Karl had hanged himself, intending to take his own life. They also went on to make a series of findings of failures by the Prison Service, Telford and Wrekin Borough Council and YOI Stoke Heath that had caused or contributed to Karl’s death.

[6]The particular matters with which the Claimant is concerned in JR1 relates to the actions of the night patrol officer at Stoke Heath, OSG (Officer Support Grade) Knowles, the officer who discovered Karl hanging in his cell from a ligature at 1.19 am on the morning in question. At the inquest, OSG Knowles gave evidence to the effect that, rather than entering the cell immediately to give assistance to Karl, he radioed for back-up from other officers and then waited for those officers to arrive before entering the cell and rendering assistance to Karl.

[7]There was conflicting evidence before the Jury from OSG Knowles and the officers who attended to assist (POs Johnston, Doherty and Kershaw) as to the time it took between the alarm being raised and their attendance at the scene, although it was in the order of minutes. It also emerged during OSG Knowles’ evidence that he had not received suicide prevention training or any other relevant training, nor had he (or any other officers) been issued with a so-called “fish-knife”, a safe instrument for cutting a ligature, and there appeared to be conflicting guidance as to the appropriate steps to be taken when an officer is confronted with a detainee in a life-threatening situation.

[8]As a result of the Coroner’s ruling, the Jury were not permitted to make any findings relating to any of the matters summarised in paragraph 7 and, although the Coroner did make certain Rule 43 recommendations (as to which, see below), he made no recommendations relating to any of those matters.

[9]On behalf of the Claimant, Mr Bowen submitted that, for reasons dealt with more fully later in this judgment, the Coroner’s ruling was wrong in law and in breach of

Article 2 of the European Convention on Human Rights

(“the ECHR”). It is to be noted that the Claimant also sought to challenge the Coroner’s failure to make a Rule 43 recommendation to the effect that “All prison officers on night duty should have full training in relation to suicide and self-harm prevention and first aid and should be issued with equipment that enables them to cut the ligature of an inmate who is found hanging.” However, the application for permission to pursue this aspect of the claim was refused by McCombe J on 29th June 2007 and has not been renewed.

[10]Furthermore, the Claimant’s original claim for relief sought (inter alia) orders quashing the inquisition and verdict in question and requiring the Defendant to hold a new “Article 2 compliant” inquest. However, in the course of his submissions and in his detailed written skeleton argument (see paragraph 113), Mr Bowen made it clear that these particular orders were no longer sought by the Claimant, who would be satisfied with appropriate declaratory relief if his claim is successful.

[11]A Brief Overview of JR2. In JR2, the Claimant is Gwendoline Calvert, the mother of the deceased, Paul Darren Calvert (“Paul”). On 22nd November 2007, Kenneth Parker QC, sitting as a Deputy High Court Judge, granted permission to apply for appropriate relief by way of judicial review of the Coroner’s directions to the Jury at the inquest held, in March 2007, into Paul’s death and of the Coroner’s decision not to leave the adjectival verdict of “neglect” to the Jury.

[12]Stated shortly, the general circumstances relating to JR2 are these. At 2.29 pm on the afternoon of 24th October 2004, Paul was found hanging by a belt tied round his neck and attached to a closed window at the end of his cell at HMP Pentonville. He was then aged 40, having been born on 1st April 1964. The inquest into Paul’s death was held by Dr Andrew Scott Reid (“the Coroner”) at St Pancras Inner North London Coroner’s Court from 26th to 29th March 2007.

[13]It is the Claimant’s case that, at the inquest, there was evidence upon which a Jury, properly directed, could have made the following narrative findings, namely that:(i) there was a failure to ensure that the Prison Escort Report in Paul’s case was received by those assessing Paul on his reception at HMP Pentonville, in particular by the officer conducting the suicide risk assessment within the First Reception Health Screen;

(ii) the First Reception Health Screen suicide risk assessment was inadequate;

(iii) there was insufficient staff at reception on the evening of 22nd October 2004 to conduct the reception process properly;

(iv) officers failed to pay adequate attention to concerns expressed about Paul’s suicide risk;

(v) prison officers seriously failed to pay proper attention to the emergency alarm panels from 1.40 pm to 2.30 pm on 24th October 2004;

(vi) officers wrongly expected inmates to answer Paul’s emergency cell alarm, rather than responding themselves;

(vii) the audible signal from the emergency alarm panels on E and A wings had been disabled for a substantial period;

(viii) the prison failed to take proper steps to repair the audible signal on the emergency alarm panels in E and A wings;

(ix) there was no appropriate system of checks and maintenance on the emergency alarm panels in E and A wings; and

(x) officers did not have appropriate tools to cut the belt from Paul’s neck, such as a “fish-knife”.

[14]In his summing up, the Coroner decided to leave to the Jury short-form verdicts of suicide (or similar), misadventure and an open verdict. However, he decided not to leave the adjectival or ancillary verdict of neglect to the Jury, since he was not satisfied that the criteria for such a verdict were satisfied because “… of the difficulties that do exist with causation that is directly relevant to the cause of death.” The Coroner then went on to direct the Jury, with regard to the verdicts that were open to them, in the following terms (inter alia):

“… you may make factual conclusions in the Inquisition briefly summarised that expands on those three conclusions … You may … give some narrative, or use some words, that describe by what means and in what circumstances the death occurred. You must not use expressions of civil liability such as neglect, negligence, carelessness, recklessness, or negligently. You mustn’t use words like because, or contributed to. However, you may … make non-judgmental conclusions about the facts. Descriptions of acts or omissions may be recorded by you, using such words as, at that time, or when, that indicate a chronology of acts or omissions that form part of the means and circumstances of the deceased’s death …”

[15]In due course the Jury delivered a majority verdict, with which seven of the nine jurors agreed. They found the cause of death to be hanging, their short-form verdict was “Death by misadventure” and, in paragraph 3 of the inquisition, they gave the following narrative verdict:

“On 24th October 2004 between the hours of 12.30 – 2.30 pm Mr Paul Darren Calvert died in his cell at HM Prison Pentonville. Between the 21-10-04 and 24-10-04 there were systemic failures. Incomplete paperwork, lack of communication, disablement of cell bells, breech (sic) of security.”

[16]On behalf of the Claimant, Mr Southey submitted that, for the reasons dealt with more fully later in this judgment, the Coroner erred in law in the following two respects:(1) Ground 1: Incorrect Narrative Verdict Direction.In breach of

Article 2 of the ECHR

, the Coroner directed the Jury that they could not be judgmental in their conclusions and that they could not use words such as “because” or “contributed to”; and

(2) Ground 2: Failure to leave the Verdict of “Neglect”. The Coroner was in error in failing to leave the adjectival/ancillary verdict of “neglect” to the Jury.

[17]A further ground in the claim form (“inadequate guidance”) was formally discontinued on 18th June 2008.

[18]In JR2, the Claimant seeks an order quashing the inquest and directing that there be a new inquest before a different coroner.

[19]A Brief Overview of JR3. In JR3 the Claimant is the mother of the deceased, Stephen Woods (“Stephen”). On 15th January 2008, Collins J granted permission to apply for appropriate relief by way of judicial review of the Coroner’s directions to the Jury at the inquest held, in June 2007, into Stephen’s death.

[20]Stated briefly, the general circumstances relating to JR3 are these. At 5pm on the afternoon of 28th August 2004, Senior Officer Craft found Stephen hanging dead from a ligature attached to the light fitting in the ceiling of his cell at HMP Bullingdon. He was then aged 23, having been born on 21st June 1981. The inquest into Stephen’s death was held by Mr Nicholas George Gardiner (“the Coroner”) at Oxfordshire Coroner’s Court from 26th to 28th June 2007.

[21]At the beginning of the inquest, on 26th June, the Coroner addressed the Jury and directed them that they “mustnot be judgmental” in their conclusions. He returned to this direction in due course, when he summed up to the Jury at the conclusion of the evidence.

[22]It is the Claimant’s case that, at the inquest, there was evidence upon which a properly directed jury could have come to certain appropriate narrative conclusions such as the following.(i) Stephen was not adequately observed, after having received an award of cellular confinement, from about 3.15 pm until he was found dead at about 5 pm.

(ii) There was not an appropriate assessment of Stephen’s risk of self-harm when he first arrived at the prison.

(iii) The assessment of whether Stephen was suitable for an award of cellular confinement on 28th August 2004 was inappropriately completed by a nurse, rather than a doctor.

(iv) A number of the officers responsible for Stephen’s care had not been adequately trained, in particular regarding the requirement for hourly observations for those in similar circumstances to Stephen on the afternoon of his death.

(v) Appropriate measures were not taken to safeguard Stephen’s mental health while he was in segregation, such as giving him books or television.

(vi) On the afternoon of 28th August 2004 the staffing levels at HMP Bullingdon were inadequate.

[23]In the course of his summing up on 28th June, the Coroner directed the Jury that they could return certain “short-form” verdicts, such as that the deceased took his own life, and went on to say (inter alia):

“If you were to return a verdict that he took his life there would be no objection to your … adding something to that. … it would be possible, if you felt the facts justified it, to say that he took his own life because the risk of doing so was not recognised and appropriate precautions taken to prevent it. But you have to put that forward as a statement of fact … and there has to be a causative link between the two. This is, you will probably say, a judgmental conclusion and of course it is, but it incorporates your findings of fact and does not [contravene] the two rules that I referred to earlier … But anything you put there must be questions of facts which you feel have been established and they must be facts that you feel to be part of the chain of causation that led to the death …”

[24]In due course, the jury returned their verdict. In the inquisition the Jury stated (inter alia) that Stephen had hanged himself some time between 3.15 pm and 5 pm on 28th August 2004 and that they were “unable to produce an objective narrative verdict.”

[25]On behalf of the Claimant, Mr Southey submitted that, for the reasons dealt with more fully later in this judgment, the Coroner was wrong in law and in breach of

Article 2 of the ECHR

in his directions to the Jury:(i) that they must not be judgmental in their conclusions; and

(ii) as to the causative link between an act or omission and the deceased’s death before such a matter could be recorded in their conclusions.

[26]As in JR1, the Claimant’s original claim for relief sought (inter alia) an order for a fresh inquest, an order that is no longer pursued. In the course of his submissions and in paragraphs 118 and 119 of his written skeleton argument, Mr Southey made it clear that, whilst the Claimant does not accept that a new inquest would not be an appropriate form of relief, she no longer seeks such an order and would be satisfied with appropriate declaratory relief if her claim is successful. The Statutory Frameworkand Main Legal Principles

[27]So far as material, the following sections of the Coroners Act 1988 (“the 1988 Act”) provide:

“8 Duty to hold inquest (1) Where a coroner is informed that the body of a person (“the deceased”) is lying within his district and there is reasonable cause to suspect that the deceased – (a) has died a violent or an unnatural death; (b) has died a sudden death of which the cause is unknown; or (c) has died in prison or in such a place or in such circumstances as to require an inquest under any other Act, Then, whether the cause of death arose within his district or not, the coroner shall as soon as practicable hold an inquest into the death of the deceased either with or, subject to subsection (3) below, without a jury. (2) In the case of an inquest with a jury – (a) the coroner shall summon by warrant not less than seven nor more than eleven persons to appear before him at a specified time and place, there to inquire as jurors into the death of the deceased … … (3) If it appears to a coroner, either before he proceeds to hold an inquest or in the course of an inquest begun without a jury, that there is reason to suspect – (a) that the death occurred in prison … … (d) that the death occurred in circumstances the continuance or possible recurrence of which is prejudicial to the health or safety of the public or any section of the public, he shall proceed to summon a jury in the manner required by subsection (2) above. (a) has died a violent or an unnatural death; (b) has died a sudden death of which the cause is unknown; or (c) has died in prison or in such a place or in such circumstances as to require an inquest under any other Act, Then, whether the cause of death arose within his district or not, the coroner shall as soon as practicable hold an inquest into the death of the deceased either with or, subject to subsection (3) below, without a jury. (a) the coroner shall summon by warrant not less than seven nor more than eleven persons to appear before him at a specified time and place, there to inquire as jurors into the death of the deceased … … (a) that the death occurred in prison … … (d) that the death occurred in circumstances the continuance or possible recurrence of which is prejudicial to the health or safety of the public or any section of the public, … (6) Where an inquest is held into the death of a prisoner who dies within a prison, neither a prisoner in the prison nor any person engaged in any sort of trade or dealing with the prison shall serve as a juror at the inquest. … 11 Proceedings at inquest … (2) The coroner shall, at the first sitting of the inquest, examine on oath concerning the death all persons who tender evidence as to the facts of the death and all persons having knowledge of those facts whom he considers it expedient to examine. (3) In the case of an inquest held with a jury, the jury shall, after hearing the evidence – (a) give their verdict and certify it by an inquisition; and … … (5) An inquisition – (a) shall be in writing under the hand of the coroner and, in the case of an inquest held with a jury, under the hands of the jurors who concur in the verdict; (b) shall set out, so far as such particulars have been proved – (i) who the deceased was; and (ii) how, when and where the deceased came by his death …”

[28]So far as material, the Coroners Rules 1984 (“the 1984 Rules”) provide as follows:

“36 Matters to be ascertained at inquest (1) The proceedings and evidence at an inquest shall be directed solely to ascertaining the following matters, namely – (a) who the deceased was; (b) how, when and where the deceased came by his death; (c) the particulars for the time being required by the Registration Acts to be registered concerning the death. (2) Neither the coroner nor the jury shall express any opinion on any other matters. … 41 Summing-up and direction to the jury Where a coroner sits with a jury, he shall sum up the evidence to the jury and direct them as to the law before they consider their verdict and shall draw their attention to Rules 36(2) and 42. 42 Verdict No verdict shall be framed in such a way as to appear to determine any question of – (a) criminal liability on the part of a named person, or (b) civil liability. 43 Prevention of similar fatalities (amended in 2008: see below) A coroner who believes that action should be taken to prevent the recurrence of fatalities similar to that in respect of which the inquest is being held may announce at the inquest that he is reporting the matter in writing to the person or authority who may have power to take such action and he may report the matter accordingly.” (1) The proceedings and evidence at an inquest shall be directed solely to ascertaining the following matters, namely – (a) who the deceased was; (b) how, when and where the deceased came by his death; (c) the particulars for the time being required by the Registration Acts to be registered concerning the death. (2) Neither the coroner nor the jury shall express any opinion on any other matters. … 41 Summing-up and direction to the jury Where a coroner sits with a jury, he shall sum up the evidence to the jury and direct them as to the law before they consider their verdict and shall draw their attention to Rules 36(2) and 42. 42 Verdict No verdict shall be framed in such a way as to appear to determine any question of – (a) criminal liability on the part of a named person, or (b) civil liability. 43 Prevention of similar fatalities (amended in 2008: see below) A coroner who believes that action should be taken to prevent the recurrence of fatalities similar to that in respect of which the inquest is being held may announce at the inquest that he is reporting the matter in writing to the person or authority who may have power to take such action and he may report the matter accordingly.”

[29]Rule 43 of the 1984 Rules was amended by the Coroners (Amendment) Rules 2008 (“the 2008 Rules”), which came into force on 17th July 2008, by the substitution of a new rule 43 which, so far as material, is in the following terms:

“43 Prevention of future deaths (1) Where – (a) a coroner is holding an inquest into a person’s death; (b) the evidence gives rise to a concern that circumstances creating a risk of other deaths will occur, or will continue to exist, in the future; and (c) in the coroner’s opinion, action should be taken to prevent the occurrence or continuation of such circumstances, or to eliminate or reduce the risk of death created by such circumstances, the coroner may report the circumstances to a person who the coroner believes may have power to take such action. …” (1) Where – (a) a coroner is holding an inquest into a person’s death; (b) the evidence gives rise to a concern that circumstances creating a risk of other deaths will occur, or will continue to exist, in the future; and (c) in the coroner’s opinion, action should be taken to prevent the occurrence or continuation of such circumstances, or to eliminate or reduce the risk of death created by such circumstances, the coroner may report the circumstances to a person who the coroner believes may have power to take such action. …”

[30]Relevant Principles of Law prior to the Human Rights Act 1998. The classic statement of the purpose of an inquest is to be found in the judgment of Lord Lane CJ in R ~v~ South London Coroner, Ex Parte Thompson (1982) 8th July (unreported), as follows: “Once again it should not be forgotten that an inquest is a fact-finding investigation and not a method of apportioning guilt. The procedure and rules of evidence which are suitable for one are unsuitable for the other. In an inquest it should never be forgotten that there are no parties, there is no indictment, there is no prosecution, there is no defence, there is no trial, simply an attempt to establish the facts. It is an inquisitorial process, a process of investigation quite unlike a trial where the prosecutor accuses and the accused defends, the judge holding the balance or the ring, whichever metaphor one chooses to use.” (Cited with approval in McKerr ~v~ Armagh Coroner

(1990) 1 WLR 649

at page 655A-B)

[31]The leading case on modern inquest practice before the coming into force of the Human Rights Act 1998 (“the HRA 1998”) was R ~v~ H.M. Coroner for North Humberside and Scunthorpe, ex parte Jamieson

(1995) QB 1

(“Jamieson”), a case that involved a suicide in prison. When giving the judgment of the court in Jamieson, Sir Thomas Bingham MR (as he then was) set out fourteen conclusions of the Court of Appeal, following a “long survey” of the relevant statutory and judicial authority relating to Coroners which included, so far as material to the present proceedings, the following (see page 23 onwards):

“(1) An inquest is a fact-finding inquiry conducted by a coroner, with or without a jury, to establish reliable answers to four important but limited factual questions. The first of these relates to the identity of the deceased, the second to the place of his death, the third to the time of death. In most cases these questions are not hard to answer but in a minority of cases the answer may be problematical. The fourth question, and that to which evidence and inquiry are most often and most closely directed, relates to how the deceased came by his death. Rule 36 requires that the proceedings and evidence shall be directed solely to ascertaining these matters and forbids any expression of opinion on any other matter. (2) Both in section 11(5)(b)(ii) of the Act of 1988 and in rule 36(1)(b) of the Rules of 1984, “how” is to be understood as meaning “by what means.”

It is noteworthy that the task is not to ascertain how the deceased died, which might raise general and far-reaching issues, but “how … the deceased came by his death,” a more limited question directed to the means by which the deceased came by his death. (3) It is not the function of a coroner or his jury to determine, or appear to determine, any question of criminal or civil liability, to apportion guilt or attribute blame. This principle is expressed in rule 42 of the Rules of 1984. The rule does, however, treat criminal and civil liability differently: whereas a verdict must not be framed so as to appear to determine any question of criminal liability on the part of a named person, thereby legitimating a verdict of unlawful killing provided no one is named, the prohibition on returning a verdict so as to appear to determine any question of civil liability is unqualified, applying whether anyone is named or not. (See page 24A-C) … (5) It may be accepted that in case of conflict the statutory duty to ascertain how the deceased came by his death must prevail over the prohibition in rule 42. But the scope for conflict is small. Rule 42 applies, and applies only, to the verdict. Plainly the coroner and the jury may explore facts bearing on criminal and civil liability. But the verdict may not appear to determine any question of criminal liability on the part of a named person or any question of civil liability. (6) There can be no objection to a verdict which incorporates a brief, neutral, factual statement: … But such verdict must be factual, expressing no judgment or opinion, and it is not the jury’s function to prepare detailed factual statements. (See page 24E-G) … (8) … It is to be hoped that in future the expression “lack of care” may for practical purposes be deleted from the lexicon of inquests and replaced by “neglect.” (9) Neglect in this context means a gross failure to provide adequate nourishment of 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 would be if it is the dependent’s mental condition which obviously calls for medical attention … (10) As in the case of self-neglect, neglect can rarely, if ever, be an appropriate verdict on its own. It is difficult to think of facts on which there would not be a primary verdict other than neglect. But the notes to form 22 in the Rules of 1984, although in themselves of no binding force, are correct to recognise that neglect may contribute to a death from natural causes, industrial disease or drug abuse. … (11) Where it is established that the deceased took his own life, that must be the verdict. On such facts … there is no room for a verdict of neglect … It is also inappropriate in such a case … to describe that cause of death as aggravated by neglect … On certain facts it could possibly be correct to hold that neglect contributed to that cause of death, but this finding would not be justified simply on the ground that the deceased was afforded an opportunity to take his own life even if it was careless (as that expression is used in common speech or in the law of negligence) to afford the deceased that opportunity. Such a finding would only be appropriate in a case where gross neglect was directly connected with the deceased’s suicide (for example, if a prison warder observed a prisoner in his cell preparing to hang a noose around his neck, but passed on without any attempt to intervene). (12) Neither neglect nor self-neglect should ever form any part of any verdict unless a clear and direct causal connection is established between the conduct so described and the cause of death. (13) It is for the coroner alone to make reports with a view to preventing the recurrence of a fatality. That is the effect of rules 36(2) and 43.” (See pages 25B to 26A)

[32]The verdicts that may be returned at an inquest are not set down by statute or by rules, but are contained in notes to the prescribed form for the Inquisition (Form 22 in Schedule 4 of the 1984 Rules). Relevant for present purposes are that the deceased “killed himself [whilst the balance of his mind was disturbed]”, “accident/misadventure” and “open verdict”. However, these notes are only suggestions and have no binding force (see Jamieson at page 25, quoted above). Thus rule 60 of the 1984 Rules provides that the forms set out in Schedule 4 “may” be used for the purposes for which they are expressed to be applicable, with such modifications as circumstances may require.

[33]There is nothing to prevent a jury from expressing their verdict by means of a short narrative of their key findings in addition to, or instead of, the short-form verdicts suggested in the notes to Form 22: see Jamieson at page 24F-G, quoted above.

[34]With certain verdicts, such as death from “natural causes”, the notes to Form 22 state that the following words may be added, where appropriate:

“and the cause of death was aggravated by lack of care/self neglect”

. The notes go on to proscribe expressly the use of this wording where the verdict is that the deceased “killed himself”.

[35]However, on certain facts it could possibly be correct to hold that neglect contributed to the cause of death, although such a finding would only be appropriate where gross neglect was directly connected with the deceased’s suicide: see Jamieson at page 25H, quoted above. Furthermore, neglect should never form part of any verdict unless there is a clear and direct causal connection between the neglect in question and the cause of death: see Jamieson at page 26A-B.

[36]Proof of a causal connection between the conduct complained of and the cause of death is necessary in order to establish a short-form verdict such as the adjectival verdicts of “neglect” or “self-neglect” or the verdicts “unlawful killing” and “suicide” (in the two latter cases, the necessary causal connection must be proved to the criminal standard).

[37]The narrow meaning given in Jamieson to the expression “how … the deceased came by his death”, i.e. that it means “by what means” he came to his death (see page 24A of the judgment in that case, quoted above), prevents a Jury from recording any findings in a narrative verdict where there is no direct causative link between those findings and the cause of death. When rule 36(2) of the 1984 Rules is also taken into account, the effect of the judgment in Jamieson as to the correct interpretation of “how” in section 11(5)(b)(ii) of the 1988 Act and rule 36(1)(b) of the 1984 Rules means that an inquest Jury cannot make factual findings in a narrative verdict that have no causative or contributory link to the cause of death. As I have already observed, Jamieson was decided before the HRA 1998 came into force on 2nd October 2000. However, it still remains authoritative so far as concerns inquests into deaths that occurred before that date and also with regard to inquests into deaths occurring after that date, save to the extent that, where the inquest in question is one where

Article 2 of the ECHR

is engaged (as to which, see below), the relevant legislation and rules must be re-interpreted in the light of the ruling of the House of Lords in R (Middleton) ~v~ West Somerset Coroner and another

(2004) 2 AC 182

(“Middleton”): see paragraph 35 of the speech of Lord Bingham in Jordan ~v~ Lord Chancellor and another

(2007) 2 AC 226

(“Jordan:HoL”), quoted in paragraph 53 below.

[38]Even before the HRA 1998 came into force, the courts acknowledged that an inquest might have to investigate matters going beyond what was required to produce the verdict. In R ~v~ HM Coroner for Western District of East Sussex, Ex Parte Homberg (1994) 158 JP 357 at 380 to 381, Morland J concluded that section 8(3)(d) of the 1988 Act (see above) and Rule 43 of the 1984 Rules (see above) contained an implicit statutory purpose, i.e. “the prevention or reduction of the risk of future injuries in similar circumstances.” He went on to say that the Rules should be interpreted with that in mind, so that the proceedings and evidence should not be “narrowly confined”. That passage was approved in R ~v~ Inner West London Coroner, Ex Parte Dallaglio

(1994) 3 All ER 139

: see the judgment of Simon Brown LJ (as he then was) at page 155, where he said this:

“It is, in short, for the individual coroner to recognise and resolve the tension existing between ss 8(3) and 11(5)(b) of the 1988 Act and r36. The inquiry is almost bound to stretch wider than strictly required for the purposes of a verdict. How much wider is pre-eminently a matter for the coroner whose rulings on the question will only exceptionally be susceptible to judicial review.”

See also the judgment of Sir Thomas Bingham MR (as he then was) to like effect at page 164.

[39]The European Jurisprudence and the Main Relevant Legal Principles after the coming into force of the HRA 1998. So far as material, sections 3, 6 and 7 of the HRA 1998 provide as follows:

“3 Interpretation of legislation (1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights. … 6 Acts of public authorities (1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right. … (3) In this section “public authority” includes – (a) a court or tribunal, and (b) any person certain of whose functions are functions of a public nature. … 7 Proceedings (a) a court or tribunal, and (b) any person certain of whose functions are functions of a public nature. … 7 Proceedings (1) A person who claims that a public authority has acted … in a way which is made unlawful by section 6(1) may – (a) bring proceedings against the authority under this Act in the appropriate court or tribunal, … …”

[40]

Article 2 of the ECHR

(“Article 2”) is in the following terms:

“Article 2 Right to life 1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than is absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.”

[41]Article 2 imposes substantive obligations on Member States not to take life without justification and to establish a framework of laws, precautions, procedures and means of enforcement which will, to the greatest extent practicable, protect life. It also imposes by implication a procedural obligation to initiate an effective public investigation by an independent official body into any death occurring in circumstances in which it appears that one or other of the foregoing substantive obligations has been, or may have been violated and it appears that agents of the state are, or may be, in some way implicated. In McCann ~v~ UK

(1995) EHRR 97

(“McCann”:the “Death on the Rock” case), the European Court of Human Rights (“the ECtHR”) stated the principle in the following terms at paragraph 161:

“The obligation to protect the right to life under [article 2(1)], read in conjunction with the State’s general duty under article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in [the] Convention” requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alios, agents of the State.”

See also paragraphs 1 and 2 of the speech of Lord Bingham in Middleton (as to which, see below), a case that also concerned an inquest into the death of a prisoner who had committed suicide by hanging himself in his cell.

[42]The investigative obligation under Article 2 was first recognised in cases where state agents had deliberately killed someone. However, the ECtHR has since expanded the range of circumstances in which an Article 2 compliant investigation must be established, to include the following:(i) All deaths in custody: see Salman ~v~ Turkey

(2000) 34 EHRR 245

and Jordan ~v~ UK

(2001) 37 EHRR 52

(“Jordan:EHRR”).

(ii) Cases of unlawful homicide, so as to require effective criminal investigations: see Menson v UK (App 47916/99).

(iii) Where a death occurs in hospital in circumstances which involve arguable allegations of serious clinical negligence: see Powell ~v~ UK (2000) EHRR CD 362 (“Powell”).

(iv) Where a death occurs as a result of an environmental hazard for which the state is arguably responsible: see Oneryildiz ~v~ Turkey

(2004) 39 EHRR 12

(“Oneryildiz”).

[43]The following characteristics of the Article 2 procedural obligation should also be noted.(i) The obligation is “not an obligation of result but of means”: see Jordan:EHRR at paragraph 107.

(ii) It is not necessary that any particular procedure be adopted; the Article 2 procedural obligation is applied to different legal systems that have different methods for investigating death: see Jordan:EHRR at paragraph 105 and R (Amin) ~v~ Secretary of State for the Home Department

(2004) 1 AC 653

(“Amin”) at page 665H.

(iii) Nor is it necessary that there should be a single unified procedure: see Amin at page 665H. This is because the obligation is on the state to establish a framework of laws and procedures that produce proper investigations. When the ECtHR considers a complaint, it routinely considers all the investigations in the round, including any police inquiry, any judicial investigation and any criminal and civil proceedings: see, for example, Jordan:EHRR at paragraphs 118 to 145.

[44]In paragraph 31 of his speech in Amin at page 665H, Lord Bingham described the purpose of an Article 2 investigation in the following broad terms:

“The purposes of such an investigation are clear: to ensure so far as possible that the full facts are brought to light; that culpable and discreditable conduct is exposed and brought to public notice; that suspicion of deliberate wrongdoing (if unjustified) is allayed; that dangerous practices and procedures are rectified; and that those who have lost their relative may at least have the satisfaction of knowing that lessons learned from his death may save the lives of others.”

[45]For an investigation to be compliant with Article 2, it must satisfy a number of criteria, as set out in Amin at pages 664E to 666A. However, these minimum requirements involve a degree of flexibility: see R (D) ~v~ Secretary of State

(2006) 3 All ER 946

at 951h. The criteria identified in Amin can be summarised as follows.(i) The investigation must be effective, in the sense that it must be capable of establishing the cause of death and identifying those responsible.

(ii) It must be reasonably prompt and must proceed with reasonable expedition.

(iii) It must make enquiries of relevant witnesses and secure relevant evidence.

(iv) Those undertaking the investigation must be independent of those under investigation.

(v) There must be such public scrutiny as will ensure accountability in practice.

(vi) The next of kin must be involved in the process to the extent necessary to safeguard his or her legitimate interests. It is perhaps worth observing at this stage that these requirements were later approved by the House of Lords in R (Hurst) ~v~ London Northern District Coroner

(2007) 2 WLR 726

(“Hurst”), in which Lord Brown held that such an Article 2 investigation was required to be able to state its conclusions on the important underlying issues, for example the justification of any use of force or the responsibility for any systemic failure to protect human life (see page 737). It is also to be noted that in Hurst the House of Lords specifically acknowledged that criminal investigations, judicial inquiries or some different processes are alternative and, on occasion, better means of discharging the Article 2 investigative obligation: see paragraph 50 of Lord Brown’s speech.

[46]Whilst it seems from Jordan:EHRR that there must be a full examination of the “circumstances” of the death in question, the precise scope of that examination has not been discussed in Strasbourg jurisprudence. Furthermore the judgments of the ECtHR in both McCann and Jordan:EHRR demonstrate that, in Article 2 terms, the requirements of any verdict by an inquest jury are limited. In each case, the ECtHR examined what issues had been ventilated in evidence, but did not regard it as necessary for a verdict to be reached on each aspect of the case. It was sufficient that the jury ruled on the central issues only. Thus, the process of the inquest, considered as a whole, secures the discharge of the Member State’s investigative obligation, i.e. by reference to all the matters ventilated and explored in evidence and the verdict of the jury.

[47]This latter conclusion is confirmed in subsequent Strasbourg decisions. Thus, echoing the decision in Jordan:EHRR,in Keenan ~v~ UK 33 EHRR 93 (“Keenan”:a case of death by suicide in prison) the ECtHR noted the need for a “thorough and effective investigation capable of leading to the identification and punishment of those responsible for the deprivation of life.” In Edwards ~v~ UK

(2002) 35 EHRR 487

(“Edwards”:a case involving the killing of one prisoner by another), the ECtHR stated as follows (again echoing paragraph 107 of its judgment in Jordan:EHRR): “69. … The essential purpose of such [an article 2] investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. What form of investigation will achieve those purposes may vary in different circumstances. … … 71. The investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used was or was not justified in the circumstances … and to the identification and punishment of those responsible. … This is not an obligation of result, but of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence and, where appropriate, an autopsy providing a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death. … Any deficiency in the investigation which undermines its ability to establish the cause of death or the persons responsible will risk falling foul of this standard …” [my emphasis] Furthermore, in Powell (an admissibility decision that concerned a death in hospital) it is to be noted that the ECtHR refused to consider “post-death” events as part of the Article 2 complaint, stating: “… the obligation at issue extends to the need for an effective independent system for establishing the cause of death of an individual under the care and responsibility of health professionals and any liability on the part of the latter. The Court stresses that its examination of the applicants’ complaint must necessarily be limited to the events leading to the death of their son, to the exclusion of their allegations that, following his death, the doctors responsible for his care and treatment fabricated his medical records to exonerate them of any blame. In the Court’s opinion, that latter issue falls to be determined from the angle of their complaint under Article 6 that they were unable to secure a ruling on the doctor’s post-death responsibility. However, the alleged post-death offences committed by the doctors did not alter the course of events which led to the death of the applicants’ son.” [My emphasis].

[48]Accordingly and in summary of the Strasbourg jurisprudence, I am satisfied that, whilst the ECtHR speaks of the requirement under Article 2 of a full investigation of the “circumstances” of death, it has not been prescriptive about either the precise scope, or form, of the investigation that is needed to fulfil such an obligation, nor has it prescribed the level of scrutiny needed in respect of “non-causal” matters. As it seems to me, it is important to note that there is no requirement in the Strasbourg jurisprudence for the jury to return a verdict on every issue in the investigation; what is required is the jury’s verdict on its central aspects.

[49]Furthermore, I was not referred to any European authority to the effect that the investigative obligation under Article 2 requires factual conclusions to be reached by the jury on events that “may have” caused or contributed to the death or that “may” cause death in similar circumstances in the future. In my judgment, there is no such requirement. As Ms Jenni Richards correctly observed on behalf of the Secretary of State, whilst logically there must be a duty to investigate acts or omissions which appear, prima facie, to be relevant (if only to determine their importance or causal relationship to the death in question), the Strasbourg jurisprudence does not support the suggestion that it would be unlawful to exclude from further investigation any events or issues, however interesting, once it has been established that such events could not have caused or contributed to the cause of the death under investigation.

[50]It was against that general background of ECHR jurisprudence, that the House of Lords considered the regime for holding inquests in England and Wales in the case of Middleton. In his speech, in which he gave the considered opinion of the Judicial Committee, Lord Bingham posed and answered the following three questions.(1) First, what (if anything) does the ECHR require (by way of verdict, judgment, findings or recommendations) of a properly conducted official investigation into a death involving or possibly involving, a violation of Article 2? As to the first question, the House of Lords concluded that, where the obligation under Article 2 is engaged and the inquest is the means of discharging it, the inquest ought ordinarily to culminate in an expression, however brief, of the jury’s conclusion on the disputed factual issues at the heart of the case (see paragraph 20).

(2) Second, does the regime for holding inquests established by the Coroners Act 1988 and the Coroners Rules 1984, as hitherto understood and followed in England and Wales, meet the requirements of the ECHR? So far as concerns the second question, it was concluded that there were some cases where a traditional, short form verdict (such as suicide) would not resolve the central issue in the inquest, in particular where the real issue was whether any failures by the authorities had led to the death. In such cases, the Article 2 procedural obligation would not be satisfied by a “traditional” (i.e. a “Jamieson”) inquest (paragraphs 31 and 32).

(3) Third, can the current regime governing the conduct of inquests in England and Wales be revised so as to meet the requirements of the ECHR and, if so, how? As for the third question, the House of Lords concluded that only one change was required, i.e. to interpret “how” in section 11(5)(b)(ii) of the 1988 Act and rule 36(1)(b) of the 1984 Rules in the broader sense previously rejected in Jamieson, namely as meaning not simply “by what means” but “by what means and in what circumstances.” In practice, that might in some cases require the coroner to return or (if sitting with a jury) elicit an expanded, narrative verdict. However, the means by which the coroner might return or elicit such a verdict should only be susceptible to challenge in exceptional cases (paragraphs 34 to 36).

[51]It is clear that the principles of law as stated in Middleton are of fundamental importance to the issues raised in these proceedings. Although the foregoing summarised conclusions of the House of Lords in Middleton are clearly very helpful, a detailed consideration of the issues in the present proceedings make it necessary to quote at lengththe following important passages from Lord Bingham’s speech in Middleton:

“4 … The issue here concerns not the conduct of the investigation itself but its culmination. It is, or may be, necessary to consider three questions. (1) What, if anything, does the Convention require (by way of verdict, judgment, findings or recommendations) of a properly conducted official investigation into a death involving, or possibly involving, a violation of article 2? (2) Does the regime for holding inquests established by the Coroners Act 1988 and the Coroners Rules 1984, as hitherto understood and followed in England and Wales, meet those requirements of the Convention? (3) If not, can the current regime for holding inquests in England and Wales be revised so as to do so, and if so how? (See page 192B-C) … 7 The European court has never expressly ruled what the final product of an official investigation, to satisfy the procedural obligation imposed by article 2 of the Convention, should be. This is because the Court applies principles and does not lay down rules, because the Court pays close attention to the facts of the case before it and because it recognises that different member states seek to discharge their Convention obligations through differing institutions and procedures. … … 16 It seems safe to infer that the state’s procedural obligation to investigate is unlikely to be met if it is plausibly alleged that agents of the state have used lethal force without justification, if an effectively unchallengeable decision has been taken not to prosecute and if the fact-finding body cannot express its conclusion on whether unjustifiable force has been used or not, so as to prompt reconsideration of the decision not to prosecute. Where, in such a case, an inquest is the instrument by which the state seeks to discharge its investigative obligation, it seems that an explicit statement, however brief, of the jury’s conclusion on the central issue is required. 17 Does that requirement apply only to the very limited category of cases just defined or does it apply to other cases as well? The decision in Keenan 33 EHRR 913 shows that it does apply to a broader category of cases, since although in that case no breach of the state’s investigative obligation was alleged or found, the court based its conclusion that article 13 had been violated in part on its opinion (para 121) that the inquest, which did not permit any determination of liability, did not furnish the applicant with the possibility of establishing the responsibility of the prison authorities nor did it (para 122) constitute an investigation capable of leading to the identification and punishment of those responsible for the deprivation of life. A statement of the inquest jury’s conclusions on the main facts leading to the suicide of Mark Keenan would have precluded that comment. 18 Two considerations fortify confidence in the correctness of this conclusion. First, a verdict of an inquest jury (other than an open verdict, sometimes unavoidable) which does not express the jury’s conclusion on a major issue canvassed in the evidence at the inquest cannot satisfy or meet the expectations of the deceased’s family or next-of-kin. Yet they, like the deceased, may be victims. They have been held to have legitimate interests in the conduct of the investigation … which is why they must be accorded an appropriate level of participation: … An uninformative jury verdict will be unlikely to meet what the House in Amin, para 31, held to be one of the purposes of an article 2 investigation: “that those who have lost a relative may at least have the satisfaction of knowing that lessons learned from his death may save the lives of others.” 19 The second consideration is that while the use of lethal force by agents of the state must always be a matter of the greatest seriousness, a systemic failure to protect human life may call for an investigation which may be no less important and perhaps even more complex … It would not promote the objects of the Convention if domestic law were to distinguish between cases where an agent of the state may have used lethal force and cases in which a defective system operated by the state may have failed to afford adequate protection to human life. 20 The European court has repeatedly recognised that there are many different ways in which a state may discharge its procedural obligation to investigate under article 2. In England and Wales an inquest is the means by which the state ordinarily discharges that obligation, save where a criminal prosecution intervenes or a public inquiry is ordered into a major accident, usually involving multiple fatalities. To meet the procedural requirement of article 2 an inquest ought ordinarily to culminate in an expression, however, brief, of the jury’s conclusion on the disputed factual issues at the heart of the case. 21 … Does the regime for holding inquests established by the Coroners Act 1988 and the Coroners Rules 1984 as hitherto understood and followed in England and Wales, meet the requirements of the Convention? … 23 … If there is reason to suspect that the death occurred in prison or in police custody … it must be held with a jury … and the independence of jurors dealing with prison deaths is specifically protected (section 8(6)). The requirement to summon a jury in such cases recognises the substantive and procedural obligations of the state which are now derived from article 2 as well as from domestic law. … … 29 How far, then, does the current regime for conducting inquests in England and Wales match up to the investigative obligation imposed by article 2? 30 In some cases the state’s procedural obligation may be discharged by criminal proceedings. This is most likely to be so where a defendant pleads not guilty and the trial involves a full exploration of the facts surrounding the death. It is unlikely to be so if the defendant’s plea of guilty is accepted … or the issue at trial is the mental state of the defendant … because in such cases the wider issues will probably not be explored. 31 In some other cases, short verdicts in the traditional form will enable the jury to express their conclusion on the central issue canvassed at the inquest. … The same would be true if the central issue at the inquest were whether the deceased had taken his own life or been killed by another: by choosing between verdicts of suicide and unlawful killing, the jury would make clear its factual conclusion. But is plain that in other cases a strict … Jamieson … approach will not meet what has been identified above as the Convention requirement. In Keenan … the inquest verdict of death by misadventure and the certification of asphyxiation by hanging as the cause of death did not express the jury’s conclusion on the events leading up to the death. Similarly, verdicts of unlawful killing in Edwards and Amin, although plainly justified, would not have enabled the jury to express any conclusion on what would undoubtedly have been the major issue at any inquest, the procedures which led in each case to the deceased and his killer sharing a cell. 32 The conclusion is inescapable that there are some cases in which the current regime for conducting inquests in England and Wales, as hitherto understood and followed, does not meet the requirements of the Convention. … 33 … Can the current regime governing the conduct of inquests in England and Wales be revised so as to meet the requirements of the Convention, and if so, how? 34 … the scheme enacted by and under the authority of Parliament should be respected save to the extent that a change of interpretation (authorised by section 3 of the Human Rights Act 1998) is required to honour the international obligations of the United Kingdom expressed in the Convention. 35 Only one change is in our opinion needed: to interpret “how” in section 11(5)(b)(ii) of the Act and rule 36(1)(b) of the Rules in the broader sense previously rejected, namely as meaning not simply “by what means” but “by what means and in what circumstances”. 36 This will not require a change of approach in some cases, where a traditional short form verdict will be quite satisfactory, but it will call for a change of approach in others: paras 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 elicit the jury’s conclusion on the central issue or issues. This may be done by inviting a form of verdict expanded beyond those suggested in 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 jury’s answer to factual questions put by the coroner. If the coroner invites either a narrative verdict or answers to questions, he may find it helpful to direct the jury with reference to some of the matters to which a sheriff will have regard in making his determination under section 6 of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976: where and when the death took place; the cause or causes of such death; the defects in the system which contributed to the death; and any other factors which are relevant to the circumstances of the death. It would be open to parties appearing or represented at the inquest to make submissions to the coroner on the means of eliciting the jury’s factual conclusions and on any questions to be put, but the choice must be that of the coroner and his decision should not be disturbed by the courts unless strong grounds are shown. 37 The prohibition in rule 36(2) of the expression of opinion on matters not comprised within sub-rule (1) must continue to be respected. But it must be read with reference to the broader interpretation of “how” in section 11(5)(ii)(b) and rule 36(1) and does not preclude conclusions of fact as opposed to expressions of opinion. However, the jury’s factual conclusion is conveyed, rule 42 should not be infringed. Thus there must be no finding of criminal liability on the part of a named person. Nor must the verdict appear to determine any question of civil liability. Acts or omissions may be recorded, but expressions suggestive of civil liability, in particular “neglect” or “carelessness” and related expressions, should be avoided. Self-neglect and neglect should continue to be treated as terms of art. A verdict such as … “The deceased took his own life, in part because the risk of his doing so was not recognised and appropriate precautions were not taken to prevent him doing so” … embodies a judgmental conclusion of a factual nature, directly relating to the circumstances of the death. It does not identify any individual nor does it address any issue of criminal or civil liability. It does not therefore infringe either rule 36(2) or rule 42. 38 The power of juries to attach riders of censure or blame was abolished … It has not been reintroduced. Juries do not enjoy the power conferred on Scottish sheriffs by the 1976 Act to determine the reasonable precautions, if any, whereby the death might have been avoided … Under the 1984 Rules, the power is reserved to the coroner to make an appropriate report where he believes that action should be taken to prevent the recurrence of fatalities similar to that in respect of which the inquest is being held. Compliance with the Convention does not require that this power be exercisable by the jury, although a coroner’s exercise of it may well be influenced by the factual conclusions of the jury. In England and Wales, as in Scotland, the making of recommendations is entrusted to an experienced professional, not a jury. In the ordinary way, the procedural obligation under article 2 will be most effectively discharged if the coroner announces publicly not only his intention to report any matter but also the substance of the report, neutrally expressed, that he intends to make.”

[52]In Hurst (supra), the House of Lords decided that the approach laid down in Middleton did not govern inquests into deaths that had occurred before the HRA 1998 came into force. The majority also expressed the view that a clear distinction ought to be drawn between “Jamieson inquests” (where Article 2 is not engaged) and “Middleton inquests” (where Article 2 is engaged): see Lord Brown at pages 215G to 216G. Furthermore, their Lordships reiterated the important distinction between(i) the scope of inquiry at an inquest and

(ii) the verdicts that may be returned at the end of an inquest. The scope of inquiry is a matter for the coroner and it may extend much further than is required for the verdict: see Lord Rodger at page 203G.

[53]Two of the issues raised in Jordan:HoL (see paragraph 37 above) were whether Middleton had implicitly overruled the decision in Jamieson,alternatively whether Jamieson should now be overruled: see issues (3) and (4) of the four issues identified by Lord Bingham in paragraph 34 of his speech in Jordan:HoL. In paragraph 35 of his speech, Lord Bingham gave the answer “No” to the questions raised by both issues and confirmed that Jamieson still remains authoritative in respect of both(i) inquests into deaths that occurred before 2nd October 2000 (the date that the HRA 1998 came into force) and

(ii) inquests into deaths that occur after that date, except where re-interpretation of the 1988 Act and the 1984 Rules in accordance with the ruling in Middleton is required to avoid violation of a party’s right to an Article 2 compliant investigation, as follows:

“35 The decision of the House in … Hurst … makes plain the answers to these questions. I summarise the answers very briefly. … (3) No. Jamieson was approved by the House in Middleton. It continues to apply to inquests into deaths occurring before 2 October 2000 and to inquests into deaths occurring after that date save where re-interpretation of the relevant legislation and rules in accordance with the ruling of the House in Middleton is called for to avoid violation of a party’s Convention right to an investigation meeting the requirements of article 2 of the Convention. … (4) No. Jamieson should not be overruled. …”

[54]In R (Sacker) ~v~ West Yorkshire Coroner

(2004) 1 WLR 796

(“Sacker”), when delivering the opinion of the Judicial Committee, Lord Hope said this with regard to the purpose of an Article 2 compliant investigation, (see paragraph 11):

“There is a high level of awareness, and much effort has been devoted to improving the system for prevention of suicides. But every time one occurs in prison the effectiveness of the system is called into question. So all the facts surrounding every suicide must be thoroughly, impartially and carefully investigated. The purpose of the investigation is to open up the circumstances of the death to public scrutiny. This ensures that those who were at fault will be made accountable for their actions. But it also has a vital part to play in the correction of mistakes and the search for improvements. There must be a rigorous examination in public of the operation at every level of the systems and procedures which are designed to prevent self-harm and to save lives.”

JR1: The Factual Background

[55]Events prior to death: Karl Lewis was just 18 when, on 8th October 2004, he was sentenced to six years imprisonment for a series of robberies. It was his first custodial sentence. His girlfriend, Christina, was pregnant with their first child and was due to give birth in a few months’ time. In due course, Karl was sent to YOI Stoke Heath to serve his sentence.

[56]Karl had been a “Looked After Child”, receiving accommodation, support and guidance from the local social services authority (Telford and Wrekin Borough Council) since 2001. He also had a documented history of self-harming behaviour, although this was not identified by the probation officer who prepared the pre-sentence report at the time of sentence. As a result, information about Karl’s history of self-harm was not passed to YOI Stoke Heath, a failure that the jury subsequently found had contributed to Karl’s death.

[57]As it happened, at the time he was sentenced, Karl threatened to harm himself. This fact was recorded by the probation staff at the Crown Court and a “Suicide Self-Harm” warning form was opened that went with Karl to YOI Stoke Heath. Upon admission an F2052SH “Self-Harm At Risk Form” was opened. Karl was then given a “First Reception Health Screen” by a mental health nurse, to whom Karl disclosed he had self-harmed in the past. He was referred to the Health Care Centre with a direction that he be reviewed by the GP the following morning. The following morning, Karl was seen by the GP, who discharged him to the wing. The first F2052SH form was closed four days later, on 13th October 2004.

[58]A “Cell Share Risk Assessment Form” was also completed at the time of Karl’s admission. In the light of the offences to which he had pleaded guilty, he was assessed as being of “High Risk” to a cellmate and to be placed in a single cell.

[59]Karl’s progress on the wing was not good. He became involved in fights and faced two Governor’s adjudications. He made several further threats to harm himself, including in letters to his girlfriend which were seen and recorded by prison staff. A second F2052SH form was opened, which remained open until 15th December 2004. It became clear that he was being bullied and that he was coping poorly. On 11th December he was transferred to “B” wing, the “Healthy Living” wing.

[60]Karl was also referred to the prison Chaplain, who provided pastoral support to both him and Christina, when it became clear that they were planning to get married. A third F2052SH form was opened on 22nd December and closed a week later on 29th December. Although Karl was seen by the prison GP each time an F2052SH form was opened, he was never referred to a psychiatrist for a fuller examination and assessment of his mental state. In due course, the inquest jury concluded that this should have happened and that the failure to refer Karl for such an examination had caused or contributed to his death.

[61]On 13th January 2005, Karl’s baby son was born. Arrangements were made for Christina and the baby to visit Karl a week later, on 20th January. It appears that the visit was very emotional. Karl was initially very hostile and aggressive. He became preoccupied by the fact that he was not registered on the birth certificate as the baby’s father, although the situation calmed down sufficiently for photographs to be taken of the three together.

[62]The events of 21st and 22nd January 2005: During the course of Friday 21st January, Karl behaved strangely from time to time, on one occasion gesturing to another inmate that he was going to hang himself. At about 7 pm he made a telephone call to Christina. The call was recorded and later played at the inquest. In the course of the call, Karl made several threats that he was going to kill himself.

[63]After finishing his telephone call, Karl requested to be taken from association and returned to his cell. At about 8 pm, he was there observed by PO Cutler to have strewn his belongings around his cell and to be in an agitated state. He had several superficial cuts on his wrist and complained that his girlfriend had refused to put his name on the baby’s birth certificate. PO Cutler opened another (the fourth) F2052SH form and Nurse Lee from the Health Care wing attended at 8.45pm.

[64]Nurse Lee concluded that Karl could be managed on normal location with supervision “as per 2052SH”, i.e.three checks during the course of the night. However, Nurse Lee did offer Karl the opportunity, if he wished, of transferring to the Health Care wing, but Karl emphatically rejected the offer because it meant that he would lose his television and would not be able to smoke. Nurse Lee later discussed the matter with the Orderly Officer, SO Lane, but neither he nor the Night Orderly Officer, SO Nahal, who took over at 9pm, signed the F2052SH form to confirm their agreement to such a course of action. In due course, the inquest jury concluded that Karl should have been taken to the Health Care wing and that the failure to do so caused or contributed to his death.

[65]OSG Knowles commenced his night patrol of “B” wing, covering three landings, from 10pm that evening. At 11.50pm he went to Karl’s cell in response to an alarm bell. Karl asked for some toilet paper. OSG Knowles returned with the paper just after midnight, at 00.05am.

[66]OSG Knowles subsequently checked Karl’s cell at 00.20am and 00.40am, in the early hours of the 22nd January. On both occasions, Karl was in bed. OSG Knowles next visited Karl’s cell 40 minutes later, at 01.20am. Tragically, at some time during those 40 minutes, Karl had hanged himself. When OSG Knowles looked through the observation window, he saw Karl hanging by a ligature suspended from a light fitting.

[67]Although he had a key, OSG Knowles did not enter the cell. He returned to the landing, where he raised the alarm over his radio, calling “Code Blue”, which means that there are breathing problems (as opposed to “Code Red”, which means that there has been spillage of blood, or “Code Brown”, which means that an incident has occurred “with the definite possibility of loss of life”).

[68]At the time of Karl’s death, OSG Knowles had not received any suicide prevention training or any first aid training. Although it appears that it has been standard practice in many prisons for a number of years to carry the cut-down tool known as a “fish-knife” (a practice that has been recommended on many occasions by the Prisons and Probation Service Ombudsman and is now compulsory), OSG Knowles was not equipped with such an instrument that night and, thus, had no means of cutting the ligature.

[69]POs Johnson, Doherty and Kershaw responded to the alarm. At the inquest, there was considerable dispute about how long it took the officers to reach the scene, but on any view it took them no more than one to two minutes to reach OSG Knowles. Once the officers reached Karl’s cell, they opened it. Three of the officers took Karl’s weight, whilst the other removed the ligature from around his neck. They laid him on the bed and commenced appropriate resuscitation procedures. At about 01.26am Nurse Colley arrived. She reported that there was no sign of a pulse and that Karl was not breathing. At 01.40am the ambulance crew arrived and continued attempts to resuscitate Karl for about 20 to 30 minutes, but with no success. At 02.55am, Dr Evan Greville certified Karl dead at the scene.

[70]The Inquest. As I have already indicated, the inquest took place over eight days between 5th and 16th October 2006. The scope of the inquest was determined in advance by the Coroner as covering six substantive issues (as to which, see paragraph 11 of the Coroner’s written ruling, quoted in paragraph 77 below) including “(v) the action taken after Karl was found hanging in his cell”.

[71]At the inquest, evidence relating to all six issues identified by the Coroner was heard. However, the present case is primarily concerned with issue (v) and whether the jury should have been asked to reach findings on the evidence that they heard relating to that issue.

[72]The Home Office consultant pathologist Dr Edmund Tapp carried out Karl’s post-mortem examination and concluded that the cause of death was vagal inhibition. He gave evidence that, after Karl had hanged himself, he would have lost consciousness in 5 to 30 seconds and that his brain would have suffered irreversible and serious damage within 2 to 3 minutes. It was Dr Tapp’s view that there would have been total brain death after no more than 10 minutes. It was not possible to say whether Karl might still have been alive when OSG Knowles looked through the observation window at 01.20am. The Coroner was therefore presented with a factual situation in which Karl’s hanging could have commenced at any time during the preceding 40 minutes and where death would have occurred within no more than 10 minutes of the hanging.

[73]The Coroner’s Ruling and the Verdict. On the 12th October 2006, at the conclusion of the evidence, the parties were invited to make submissions as to the scope and format of the matters to be made the subject of the jury’s verdict. The Coroner agreed that the jury should be invited to give their verdict by way of answers to a series of questions and prepared a questionnaire adapted from the proposed questions put forward on behalf of Karl’s family. However, he refused to allow questions concerning the fifth substantive issue, i.e. the action taken after Karl had been found hanging in his cell, such as the suggested example:

“Should immediate assistance have been given to Karl upon being discovered hanging by a ligature in his cell?”

[74]On behalf of the Claimant, Mr Bowen emphasised that if the Coroner had allowed the jury to consider actions taken by the prison after OSG Knowles discovered Karl, then the family would have made submissions about further questions to be considered by the jury, e.g. with regard to OSG Knowles’ lack of suicide training, his lack of suitable cut-down equipment and the apparent conflict between the various forms of guidance to officers as to the appropriate action to be taken when a detainee is discovered in a life-threatening situation. The Coroner gave an oral ruling on 12th October that no questions could be put relating to the period after Karl had been found hanging, on the basis that:(i) there was no evidence upon which a reasonable jury could conclude that OSG Knowles’ actions had “caused or contributed” to Karl’s death; and

(ii) the jury had no jurisdiction to consider factors which had not “caused or contributed” to the death. He later confirmed that ruling in writing on 18th October (see below).

[75]In his summing-up, the Coroner directed the Jury in terms that were consistent with his ruling, as follows:

“Now, members of the jury, there is one question I am not asking you to consider, although we have heard evidence and I have summarised it to you, and it is Officer Knowles, whether he should have gone into the cell or not. There is no evidence at all, members of the jury, as to when Karl died, if you remember, between 12.40 and 1.20, and it may well have been the case that by the time Officer Knowles came to the scene Karl was already dead. So it is simply not safe or appropriate to ask you to consider answering that question. That is why the question has not been put to you.”

[76]In due course, the Jury completed the inquisition and the questionnaire. They concluded that Karl had hanged himself, intending to take his own life. In their answers to the questionnaire, the Jury expressed the view that a number of factors had contributed to Karl’s death, including failures of communication between departments concerning his mental state, the failure on the part of YOI Stoke Heath and the Probation Service to obtain background information about Karl, the failure of YOI Stoke Heath to undertake a mental health assessment and its failure to transfer Karl to the Health Care Centre on 21st January 2005.

[77]As I have already indicated, the Coroner confirmed his earlier oral ruling of 12th October 2006 by a written ruling dated 18th October, which was delivered after the conclusion of the inquest. The written ruling was headed “The Scope and Extent of Verdict” and, so far as material, was in the following terms: “4. In essence the family, through their Counsel Mr Paul Bowen, wished me to leave to the Jury a series of questions which could be answered whether or not the Jury considered they caused or contributed to the death of the late Karl Lewis. Mr Bowen set out his position in a skeleton argument dated 20th September 2006 and expanded upon it in oral submissions towards the close of the Inquest. Mr Bowen said that Article 2 required the Jury to make findings on those matters which caused or contributed to the death, those matters which may have caused or contributed to the death and “any other factors which are relevant to the circumstances of the death”. 5. Mr Jonathan Jones, Counsel for the Prison Service, opposed this submission and set out his position in a skeleton argument dated 27th September 2006 which also dealt with other matters. In essence Mr Jones said that the requirement to investigate under Article 2 related to only matters which caused or contributed to Karl Lewis’s death. Mr Jones was supported by the other interested parties. … 8. I have reviewed the Law (principally Middleton

2004 UKHL 10

, Sacker UKHL 11, Gregg v Scott UKHL 2, Jervis 12th Edition paragraph 12-153, and the authorities there cited) my own practice and procedure and was shown examples of Inquests coming before other Coroners. 9. My own practice and procedure has been to investigate all relevant circumstances and then leave to the Jury any matters upon which there was evidence on which they could reach conclusions as to matters which caused or contributed to the death. This would enable a wide ranging enquiry to take place. This would mean that the family’s concerns were legitimately explored and I would not be precluding from the Inquest matters which could or could not turn out to be relevant in terms of causation. … 10. This Inquest like all others is an investigation into what caused or contributed to the death of the deceased and if lessons can be learnt along the way they will be. It is not, in my view, an Inquest into what did or did not cause or contribute to the death and if I am forced to make that distinction I do so. 11. Here it was clear from the evidence I had read in preparation for the Pre-Inquest Review that there were six substantive issues to be addressed at the Inquest:(i) The information chain as to what information was passed along the process from Social Services to the Probation Service to the Court and to Stoke Heath Young Offender Institution.

(ii) The care which Mr Lewis received from his reception through to the night he died.

(iii) Cell sharing risk assessment both to others and himself.

(iv) The F2052SH procedure.

(v) The action taken after Mr Lewis was found hanging in his cell.

(vi) The Mental Health issues and how Mr Lewis was managed. 12. The Inquest looked at all six issues and as can be seen from the Jury’s Questionnaire were asked to reach conclusions on all but one (issue number (v)) i.e. the actions after Karl Lewis was found hanging in his cell. There was no evidence that Karl Lewis was alive at that time and the only evidence was that Karl appeared lifeless to the Operational Support Grade Officer who instead of entering the cell went to call emergency assistance. His actions were explored in detail. 13. It was clear to me that there was no evidence to support the question being left to the Jury. He had last been observed at 12.40am and was found hanging at 1.20am. The forensic evidence from Dr Tapp indicated that someone hanging can lose consciousness within 5 seconds to 20-30 seconds, suffer irreversible brain damage within 2 to 3 minutes and irreversible brain death within 10 minutes. Karl Lewis may well have been dead at the time the Officer saw him. It was impossible to say when during the 40 minute period Karl Lewis hanged himself or whether a chance was lost. 14. My ruling therefore is and was that the Jury could only consider factual questions directly relating to the cause or contribution to the cause of Karl Lewis’s death. 15. For the sake of completeness I should add that I refused a further submission by Mr Bowen that the Jury should consider an alternative questionnaire putting the same questions but without the need to establish a legal causal connection. Mr Bowen indicated that this may assist any subsequent Inquiry that may be ordered and perhaps avoid one if this ruling was successfully challenged. Mr Jones opposed this. Whilst in a more general sense it may be interesting to learn what the Jury thought of other matters if those matters were outside the scope and extent of their verdict it would be wrong to do so and I so ruled. 16. This ruling is, of course, without prejudice to my powers under Rule 43 of the Coroners Rules 1984.” (i) The information chain as to what information was passed along the process from Social Services to the Probation Service to the Court and to Stoke Heath Young Offender Institution. (ii) The care which Mr Lewis received from his reception through to the night he died. (iii) Cell sharing risk assessment both to others and himself. (iv) The F2052SH procedure. (v) The action taken after Mr Lewis was found hanging in his cell. (vi) The Mental Health issues and how Mr Lewis was managed.

[78]At the conclusion of the inquest, the Coroner made a report under Rule 43 of the 1984 Rules to the Minister of State with responsibility for Prisons, the Governor of YOI Stoke Heath, the Director of the Local Authority Social Services Department and the Secretary to the local Probation Service. This report recommended that a number of matters be reviewed, namely:(i) the classification of “self-harm” in pre-sentence reports;

(ii) the information provided and recorded in a first reception health screen; and

(iii) the circumstances in which a detainee should be referred for mental health assessment. JR1: The Parties’ Submissions

[79]Mr Bowen submitted that the Coroner erred in law in ruling that the jury could only consider factual questions relating to the cause or factors contributing to the cause of Karl’s death (see paragraph 14 of the Coroner’s written ruling, quoted above in paragraph 75). It was Mr Bowen’s submission that, on analysis, the domestic and Strasbourg jurisprudence leads to the conclusion that, in order to comply with the Article 2 investigative obligation, a Coroner must have the power, in appropriate circumstances, to leave questions to the jury concerning factors that are not the cause or that did not contribute to the cause of the death in question. Mr Bowen then advanced six reasons in support of that general submission. As it seems to me, it is convenient to treat these reasons as individual grounds of challenge to the Coroner’s ruling, although, as will become apparent, it is only each of the first four grounds that is separately capable of establishing the general criticism expressed above.

[80](1) The First Ground of Challenge: Mr Bowen submitted first that, as a matter of domestic law, the jury clearly has jurisdiction to consider factors that are not directly causative of the death. Mr Bowen referred to paragraph 20 of Lord Bingham’s speech in Middleton (see above) in which it was made clear that, in order to meet with the procedural requirement of Article 2, an inquest ought ordinarily to culminate in the jury’s conclusions on the disputed factual issues at the heart of the case. Mr Bowen also referred to paragraphs 35 of Middleton (see above) and submitted that, at least in cases involving deaths in custody, the questions that a jury is required to answer by virtue of section 11(5)(b)(ii) of the 1988 Act and rule 36(1)(b) of the 1984 Rules are now to be interpreted as meaning “by what means and in what circumstances, when and where the deceased came by his death”. Mr Bowen pointed out that such circumstances are said to include “where and when the death took place; the cause or causes of such death; the defects in the system which contributed to the death; and any other factors which are relevant to the circumstances of the death”: see paragraph 36 of Middleton (my emphasis).

[81]It was Mr Bowen’s contention that, by necessary implication, the “other factors” to which Lord Bingham made reference in paragraph 36 of his speech in Middleton must be factors that, although relevant to the circumstances of the death, are not themselves a direct cause of or contributors to such death. Mr Bowen supported that argument by posing the rhetorical question:

“To what other factors could the House of Lords have been referring, other than those which are not causative of or contributory to the death in question, given the explicit reference immediately before to “the cause or causes of such death” and the “defects in the system which contributed to the death?””

[82]Mr Bowen’s submissions were adopted and supported by Mr Southey for the purposes of the second ground of challenge in JR3 (see paragraph 25 above). Mr Southey contended that there is no authority that actually permits a coroner at an inquest where Article 2 is engaged to restrict the phrase “in what circumstances” to matters that have caused or might have led to the death in question. He submitted that, on the contrary, the authorities demonstrate that, for the purposes of a “Middleton inquest” the word “circumstances” is to be given a broader meaning than is covered by the expression “factors that caused or contributed to the death.”

[83]In support of that submission, Mr Southey referred to and relied on paragraphs 5, 36 and 37 of Middleton, paragraph 28 of Sacker and the ECtHR’s view as to the correct approach to an Article 2 investigation (an approach which, he submitted, had been followed in domestic authorities such as Sacker) as stated in paragraph 94 of Oneryildiz, where the ECtHR expressed the following view:

“… authorities must … initiate investigations capable of, first, ascertaining the circumstances in which the incident took place and any shortcomings in the operation of the regulatory system and, secondly, identifying the state officials or authorities involved in whatever capacity in the chain of events in issue.”

[84]Mr Southey also submitted that to restrict the jury in a Middleton inquest to factual conclusions on matters that have been shown, on the balance of probabilities, to have caused or contributed to the death is particularly inappropriate in the case of deaths in custody. He suggested that such a restriction would be bound to prevent valuable and important comment being made by the jury about many instances of dangerous practices, procedures and omissions in prison, because (as is the case in JR1 and JR3) it is often simply not possible to say, on the balance of probabilities, that any particular failing or failings caused or contributed to the death. Mr Southey submitted that this clearly militates against achieving any significant reduction of suicides in prison.

[85]Mr Southey submitted that, where Article 2 is engaged, the inquest should seek to achieve what he identified as the primary purposes of an Article 2 investigation, namely:(i) to rectify dangerous practices and procedures;

(ii) to learn lessons from the death that may save the lives of others;

(iii) to assuage the concerns of the public and family;

(iv) to minimise the risk of similar deaths in the future; and

(v) to protect the right to life.

[86]It was therefore Mr Southey’s submission that the jury’s verdict and the coroner’s directions to the jury on their narrative verdict are crucial to ensuring that these purposes are met and that any deficiency in the conduct of the inquest or the coroner’s directions that prevents the inquest from achieving those purposes is liable to fall foul of the required standard of effectiveness under Article 2.

[87]On behalf of the Secretary of State, Ms Richards acknowledged that certain aspects of the language used by Lord Bingham in his speeches in Amin and Middleton were capable of a broad interpretation (see paragraphs 31 and 36 respectively of the judgments in those decisions, quoted above). Ms Richards therefore accepted that there were the following two possible approaches that could be taken by the court. Either, (i) since Lord Bingham’s purpose in Middleton was to ensure that, where Article 2 is engaged, an inquest is Article 2 compliant and, since the Strasbourg authorities cannot properly be interpreted so as to require the investigation of, still less the expression of conclusions upon, events that do not have a causal impact, the phrase “by what means and in what circumstances” should be given a narrow interpretation; i.e. a “circumstance” that is relevant to the death in question must be one that bears a causal relationship to the death (“the narrow approach”). Ms Richards observed that such an interpretation was both Article 2 compliant and provided an appropriate delineation of the task of the inquest and the jury in reaching a verdict. Or (ii), since the Contracting States have a wide margin of appreciation or discretion in shaping both the form and scope of any post-death investigation, and since in both Middleton and Amin the House of Lords has stressed the useful purposes served by a wide investigation of such matters as any systemic failures that are relevant to a death, the phrase “by what means and in what circumstances” may be interpreted broadly, so as to encompass factors which are relevant to the circumstances of the death, even though there is no causal relationship (“the broad approach”). However, it was Ms Richards’ submission that it remains for the Contracting State (i.e. in England and Wales, the coroner) to determine both the precise scope of the investigation and the issues upon which the jury must return a verdict. She submitted that, so far as concerns England and Wales, an inquest will be Article 2 compliant where there is a full investigation of all the circumstances, coupled with a determination of the jury upon the central disputed facts.

[88]Ms Richards suggested that either approach might commend itself to the court and confirmed that, as set out in her detailed grounds of defence, the Secretary of State considers that the broad approach does offer a number of practical advantages. Nevertheless, Ms Richards stressed (correctly, in my view) that it is important to recognise that such a broad investigation is not required by the Strasbourg jurisprudence (see, in particular, paragraphs 45 to 48 above) and I agree with her that this is so.

[89]As will become apparent later, I have come to the firm conclusion that the “narrow approach” is the correct approach and is the one that should be taken by the court when considering whether the conduct of an inquest and the coroner’s directions satisfy the requirements of the Article 2 investigative obligation.

[90]Ms Richards emphasised that the Secretary of State disagrees with the Claimant’s core submission that Article 2 imposes an obligation to leave questions to the jury concerning factors that cannot be shown on the balance of probabilities to have caused or contributed to the death in question. Both Mr Hough on behalf of the Coroner in JR1 and Mr Coppel on behalf of the Coroner in JR3 supported her submissions in support of the Secretary of State in that regard.

[91]It was Ms Richards’ submission (supported by both Mr Hough on behalf of the Coroner in JR1 and Mr Coppel on behalf of the Coroner in JR3) that, in the passage in paragraph 36 of Middleton upon which Mr Bowen placed such reliance, Lord Bingham was doing no more than provide guidance as to what matters a coroner might find helpful when directing the jury if, in his discretion, he invited them to return a narrative verdict or an extended verdict of answers to questions. Ms Richards submitted that this part of Lord Bingham’s judgment could not be interpreted as a conclusion that Article 2 imposes the positive obligation on the State for which Mr Bowen contended. She maintained that any such conclusion would inevitably have been expressed in very different terms to those used in paragraph 36 of Middleton and would be very difficult to reconcile with other aspects of the judgment. I agree with that submission and reject Mr Bowen’s submissions to the contrary effect.

[92]Ms Richards also submitted that, as Lord Bingham made clear in paragraph 36 of Middleton, the question of whether the jury should be invited to direct its narrative or extended verdict to any particular circumstance is one for the coroner to decide. She contended that the coroner’s choice of direction would, in turn, be informed by his judgment as regards the matter’s causative relevance. I agree.

[93]Mr Hough first submitted (correctly, in my view) that, central to Mr Bowen’s submissions under this ground of challenge (and an essential component of it), is the assumption that the word “relevant” in paragraph 36 of Lord Bingham’s speech in Middleton does not involve or connote causal relevance. Mr Hough submitted that such an assumption is plainly wrong and that this obvious error fatally undermines Mr Bowen’s submissions. In my view, Mr Hough’s argument on this aspect of the matter is correct and I reject Mr Bowen’s submissions to the contrary effect. I have come to that conclusion for the following compelling reasons, each of which Mr Hough put forward in support of his argument.(1) It is difficult to see how a factor could be factually relevant to the circumstances of a particular death (i.e. the death which is the subject of the inquest in question) if that factor did not either cause or causally contribute to the death in question.

(2) In the sentence in paragraph 36 of Middleton upon which Mr Bowen relied, the reference to “other factors” relevant to the circumstances of the death follows on from reference to “the cause or causes of such death” and “defects in a system which contributed to the death” (i.e. causative systemic failures). As it seems to me, therefore, and contrary to Mr Bowen’s argument as summarised in paragraph 81 above, the overall context demonstrates that the jury’s narrative verdict should be concerned with causally relevant matters and that the expression “any other factors” should be interpreted accordingly.

(3) The fact that “the cause or causes of such death” are separately mentioned does not assist Mr Bowen’s submission because the phrase “the cause of death” is commonly used and understood to mean the immediate or medical cause of death.

(4) The provision in the Scottish legislation, to which Lord Bingham referred in paragraph 36 of Middleton and which introduces the sentence in question, permits a sheriff to identify precautions whereby death might have been avoided. It is expressly recognised in paragraph 38 of Middleton that juries do not have this particular power in England and Wales. However, as it seems to me, Mr Bowen’s submissions were to the effect that the jury should have such a power and, thus, should have been asked to express their conclusions as to what precautions might have saved life and as to a hypothetical set of facts.

[94]Next, Mr Hough submitted that Mr Bowen’s argument ignores the language of the statutory provisions that Lord Bingham was interpreting in Middleton. I agree. As Mr Hough pointed out, the verdict at an inquest must state (inter alia) “how … the deceased came by his death”: see section 11(5)(b)(ii) of the 1988 Act and rule 36(1)(b) of the 1984 Rules (quoted in paragraphs 27 and 28 above). In a Jamieson inquest (i.e. an inquest in which Article 2 is not engaged), “how” bears the narrow meaning “by what means”, so that the verdict must address only the immediate cause of death. In my view, in a Middleton inquest (i.e. one in which Article 2 is engaged), the verdict can and should address the chain of events relevant to and leading to the death in question. However, as Mr Hough pointed out, in neither case is the verdict required to address how the death might have occurred or how similar deaths might be prevented. Again I reject Mr Bowen’s submissions to the contrary effect.

[95]I also agree with Mr Hough’s third submission in relation to this first ground of challenge, namely that Mr Bowen’s argument fails to consider and take proper account of other important observations of Lord Bingham in Middleton, as follows.(1) At paragraph 30, Lord Bingham noted that the State’s procedural obligation under Article 2 might be entirely discharged by criminal proceedings, if those proceedings fully explored the facts of the death. As Mr Hough pointed out, since the result of such criminal proceedings will always require proof of causation, it is hard to see how an inquest can be considered inadequate if it fully explores the factual circumstances of the death in question and reaches conclusions on the cause of and factors contributing to the death (an approach which is, as it seems to me, the very one that was and is normally adopted by this particular Coroner: see paragraphs 9 to 11 of his written ruling, quoted in paragraph 77 above).

(2) In paragraph 31 of his speech in Middleton (quoted above), Lord Bingham commented that short-form verdicts in the traditional form would sometimes enable a coroner or jury to express a conclusion on the central issue canvassed at the inquest. However, Lord Bingham then went on to note that the short-form verdict in Keenan was held to be inadequate because it did not express any conclusion on “the events leading up to the death”. He also noted that short-form verdicts of unlawful killing in the cases of Edwards and Amin would not have enabled the tribunal to express a conclusion on the major issue, i.e. “the procedures which led in each case to the deceased and his killer sharing a cell.” I accept Mr Hough’s submission that all these observations suggest that the inquest verdict should be concerned with matters causally contributing to the death in question.

(3) At paragraph 37 of Middleton (quoted above), Lord Bingham suggested the following sample narrative verdict:

“The deceased took his own life, in part because the risk of his doing so was not recognised and appropriate precautions were not taken to prevent him doing so.”

Again, I agree with Mr Hough that this sample verdict is clearly expressed in the language of cause and effect.

[96]Next, Mr Hough submitted (correctly, in my view) that Mr Bowen’s argument is inconsistent with the approach adopted and judicial observations in a number of recent cases. Mr Hough quoted examples in paragraph 41 of his written skeleton argument that supported this particular submission to which I refer, but do not repeat. In my view, it is only necessary to refer to R (Bodycote HIP Ltd) ~v~ HM Coroner for Herefordshire

(2008) EWHC 164

Admin in which Blake J. considered what verdicts might be returned if the inquisition were quashed. When considering narrative verdicts, he said this (at paragraph 23): “Given the heightened scrutiny in cases of avoidable deaths under the Human Rights Act …, a jury might well have concluded that it was necessary to recite whatever particular circumstances of concern that caused those deaths in a narrative verdict either as part of, or as an alternative to, a verdict of accidental death, which is otherwise the preset alternative to a verdict of unlawful killing.” (My emphasis).

[97]Mr Hough’s final submission on this aspect of the matter was that Mr Bowen’s argument assumes that the House of Lords in Middleton intended to impose obligations which go beyond those required by Article 2 as interpreted by Strasbourg jurisprudence. Mr Hough submitted (correctly in my view) that the Strasbourg authorities do not require an Article 2 compliant investigation to reach conclusions that go beyond establishing the cause of death and the persons responsible: see paragraphs 45 to 48 and 88 above.

[98]I accept Mr Hough’s submission that it is clear from the questions posed and the answers provided in Middleton that the House of Lords was seeking to decide what was necessary for the domestic regime to comply with the requirements of Strasbourg jurisprudence with regard to Article 2. As Mr Hough observed, that being the case, it should be presumed that their Lordships were not seeking to go beyond those requirements: see NPT ~v~ Home Secretary

(2005) 2 AC 296

at page 305H to 306H.

[99]For those reasons, therefore, I have come to the conclusion that this first reason or ground of challenge put forward by Mr Bowen fails. As it seems to me, and as I have already indicated (see paragraph 89 above) it follows that I am satisfied that the correct approach for the court to take, when considering whether the conduct of an inquest and the coroner’s directions satisfy the requirements of the Article 2 investigative obligation, is that identified in paragraph 87(i) above as the narrow approach.

[100](2) The Second Ground of Challenge. Second, Mr Bowen submitted that both domestic and Strasbourg jurisprudence establish that a primary function of an Article 2 compliant investigation is to identify the causes of death, to bring those responsible to justice and to render the State accountable for any breaches of its substantive obligations under Article 2 (my emphasis). Mr Bowen contended that, whilst the inquest may not necessarily be the forum in which a finding is specifically made of a violation under Article 2, it is the forum in which the facts relevant to such a conclusion are to be found (i.e. the relevant acts and omissions): see, for example, Jordan:EHRR at paragraph 39 and Middleton at paragraph 37 (quoted above). However, as it seems to me, this begs the central question raised in the present proceedings, namely whether or not an inquest jury’s factual conclusions and verdict with regard to such relevant acts and omissions are confined to those that are causative or contributory to the cause of the death.

[101]It was Mr Bowen’s submission that, in order to establish breach of a substantive obligation under Article 2, it is not necessary to prove that the State’s act or omission caused or materially contributed to the death. He suggested that a “looser approach to causation is adopted under the [ECHR] than in English tort law”: see paragraph 138 of Lord Brown’s speech in Van Colle ~v~ Herts Police; Smith ~v~ Sussex Police

(2008) 3 WLR 593

(“Van Colle”). He therefore argued that, for the purposes of establishing a breach of the substantive obligation under Article 2, it is enough to show that the State knew or ought to have known of the existence of a real and immediate risk to the life of the deceased and that it failed to take measures which “might have been expected to avoid” that risk.

[102]Accordingly, it was Mr Bowen’s contention that, in order to establish a breach of Article 2, it is sufficient to prove that the State’s act or omission may have resulted in a different outcome. Such an approach to causation, he suggested, accords with that of the ECtHR with regard to an alleged breach of Article 2 and necessarily involves a more flexible approach to the issue of causation (i.e. with regard to a possible breach of the substantive obligation) than that adopted by the Coroner in this case. Mr Bowen submitted that if that approach had been adopted, as it should have been, it would have resulted in the jury giving appropriate consideration to the type of questions that the Coroner actually excluded by his ruling and that he thereby fell into error.

[103]Mr Bowen acknowledged that he had not advanced this particular argument before the Coroner, nor does it appear in the Claimant’s original grounds. The same also applies to the fourth reason/ground (see below). However, neither Mr Hough nor Ms Richards formally objected to Mr Bowen putting forward and relying on these particular arguments at the hearing before me. Accordingly, insofar as it may be necessary, I grant the necessary permission for him to do so.

[104]A crucial element in Mr Bowen’s submissions under this particular ground is the suggestion that part of the purpose of an Article 2 compliant investigation (i.e. in England and Wales, the inquest) is to render the State accountable for any breach of its substantive obligations under Article 2 and that the investigation is the forum in which the appropriate findings, relevant to any such breach, will be made (see paragraph 92 above).

[105]Both Ms Richards and Mr Hough submitted that this suggestion is simply not supported by either Strasbourg or domestic case law and I agree with that submission.

[106]It is important to bear in mind, as explained in paragraphs 45 to 48 above, that the Strasbourg cases clearly demonstrate that the purpose of an Article 2 investigation is to establish the cause or causes of the death and the persons responsible. In my view, compliance with the Article 2 investigative obligation does not require that the investigation go any further. As Mr Hough observed (see paragraph 43 of his written skeleton argument), the Strasbourg institutions developed the procedural obligation under Article 2 on the ground that the substantive obligation to protect the right to life, read together with Article 1, requires a system of laws to ensure that unlawful killings are investigated and those accountable are identified. I accept Mr Hough’s submission that this is what the Strasbourg case law means by the requirement to establish an effective investigation. As it seems to me, that touchstone is applied by Strasbourg to a wide range of investigations in very different legal systems throughout the Member States. Thus, in paragraphs 105 and 107 of its judgment in Jordan:EHRR, the ECtHR stated the position in the following terms:

“105. … The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. … 107. The investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances and to the identification and punishment of those responsible … Any deficiency in the investigation which undermines its ability to establish the cause of death or the person or persons responsible will risk falling foul of this standard.”

[107]I agree with Mr Hough that it is inconceivable that Strasbourg would regard an investigation as inadequate for the purposes of Article 2 because its conclusions were limited to matters that were causally relevant to death and did not cover matters such as those envisaged by Mr Bowen’s submissions. I also agree that it is significant that Mr Bowen was unable to point to a single decision in the Strasbourg case law in which it was held that an Article 2 investigation was inadequate because its findings were limited to causally relevant factors. I accept Mr Hough’s submission that where the Strasbourg institutions have considered the adequacy of a particular investigation, there has never been any suggestion that the investigation did not comply with Article 2 for such a reason. Thus, in Bubbins v UK

(2005) 41 EHRR 458

(a case in which Middleton was cited) the ECtHR said this, at paragraph 153: “The Court observes at the outset that it has already had occasion to conclude that the inquest procedure in England and Wales is capable of fulfilling the Article 2 requirements of an effective investigation into an alleged killing by State agents. … Judicial review lies from procedural decisions by coroners and in respect of any mistaken directions given to the jury. There are thus strong safeguards as to the lawfulness and propriety of the proceedings. In the event of a verdict of “unlawful death” the Director of Public Prosecutions is required to reconsider any decision not to prosecute and to give reasons which are amenable to challenge in the courts. Although a coroner is required to confine his investigation to the matters directly causative of the death and not to extend his inquiry into the broader circumstances, this does not prevent examination of matters such as the planning and conduct of, for example, a police operation which results in the loss of life, having regard in particular to the fact that an essential purpose of the inquest is to allay rumours and suspicions of how a death came about.” (My emphasis).

[108]Furthermore, I agree with Mr Hough that, although a number of Strasbourg decisions refer to the need for an investigation to ascertain shortcomings in regulatory systems and to identify the state bodies responsible, importantly none of the cases suggests that the investigation needs to reach conclusions on systemic failures that are not causative of the particular death.

[109]I therefore also agree with Ms Richards’ submission that the investigative obligation under Article 2 is different in nature and ambit from the substantive obligation. The determination of the cause of death and those responsible for it does not include any requirement to find that there has been a breach of the substantive obligations under Article 2. As Collins J observed in R (Smith) v Assistant Deputy Coroner for Oxfordshire

(2006) EWHC 694

(Admin), at paragraph 24:

“ … the inquest is not the means whereby a substantive breach of Article 2 is to be established – indeed, as will become apparent, a verdict which appeared to determine this would be likely to be contrary to Rule 42(b) of the Coroners Rules 1984. It is to decide by what means and in what circumstances the deceased met his death.”

[110]Accordingly, for the foregoing reasons, I have come to the conclusion that there is no substance in this second ground of challenge, which therefore also fails.

[111](3) The Third Ground of Challenge. Mr Bowen’s third ground of challenge was that the Coroner must, in appropriate circumstances, have power to leave questions to the jury concerning factors that are not the cause, or did not contribute to the cause, of the death in question because both domestic and Strasbourg jurisprudence establish that a further function of an Article 2 compliant investigation is to identify any shortcomings in the regulatory framework so as to minimise the likelihood of similar deaths in future. It was therefore Mr Bowen’s submission that this particular function will not be discharged if the jury’s jurisdiction is limited to the identification of matters that are demonstrated, on the balance of probabilities, to have caused or contributed to the death.

[112]In support of that submission, Mr Bowen referred, inter alia, to Oneryildiz and to Trubnikov ~v~ Russia, App. No. 49790/99, 5th July 2005 (“Trubnikov”,a case that involved a self-inflicted death in custody), in which it was said, at paragraph 88:

“88. Accordingly, where a positive obligation to safeguard the life of persons in custody is at stake, the system required by Article 2 must provide for an independent and impartial official investigation that satisfies certain minimum standards as to effectiveness. Thereby, the competent authorities must act with exemplary diligence and promptness and must of their own motion initiate investigations which would be capable of, firstly, ascertaining the circumstances in which the incident took place and any shortcomings in the operation of the regulatory system and, secondly, identifying the State officials or authorities involved. …”

[113]Mr Bowen therefore contended that an inquest that does not allow shortcomings in the operation of the regulatory system to be identified and recorded in the verdict unless they are shown on the balance of probabilities to have caused or contributed to the death cannot be consistent with Article 2.

[114]However, I agree with both Ms Richards and Mr Hough that references in Strasbourg case law (as in Oneryildiz and Trubnikov) with regard to the importance of identifying shortcomings or dangerous practices in the regulatory system and judicial observations that an inquest may form an important function in meeting such an objective (see paragraph 38 in Middleton) must be read in the overall context of the Strasbourg and domestic case law on the nature and purpose of the Article 2 investigative obligation (as to which see paragraphs 45 to 48 and 106 to 108 above). I am satisfied that (as Ms Richards and Mr Hough both observed) neither the Strasbourg nor the domestic jurisprudence supports a conclusion that the Article 2 procedural obligation requires that there be a full investigation ascertaining all or any shortcomings in the operation of the regulatory system, whatever their relevance to the death in question.

[115]Furthermore, as it seems to me and as Ms Richards observed, Mr Bowen’s submission that this aspect of the Article 2 investigative obligation is to be met by the verdict of the jury – as opposed to the inquest’s investigatory role in uncovering evidence and exposing it to public scrutiny and the Coroner’s recommendations – is unsupported by any ECHR case law. In my view, it is also contrary to the allocation of responsibilities under rule 43 of the 1984 Rules and the confirmation in Middleton that this aspect of the Article 2 procedural obligation has been entrusted to an experienced professional. The Coroner will have heard all the evidence and, whilst I accept that he may be assisted by the jury’s findings of fact, the possibility of such assistance does not, in my view, advance Mr Bowen’s submissions that there is a requirement in law to invite the jury to rule upon matters without causative relevance or of only speculative causative relevance.

[116]For all those reasons, therefore, I have come to the firm conclusion that there is nothing in this particular ground of challenge.

[117](4) The Fourth Ground of Challenge. Mr Bowen’s fourth ground of challenge was that the Coroner must, in appropriate circumstances, have power to leave questions to the jury concerning matters that are not the cause, or did not contribute to the cause, of the death in question because, where the circumstances surrounding the death also disclose an arguable breach of Article 3 (which prohibits torture and inhuman or degrading treatment), then the inquest must also meet the requirements of the State’s Article 3 investigative obligation.

[118]Mr Bowen submitted that, as the facts in Keenan illustrate, the circumstances of a death in custody may not be sufficient to give rise to an Article 2 violation, but they may demonstrate that the individual’s treatment prior to his death was such as to amount to torture or inhuman and/or degrading treatment in breach of Article 3. Mr Bowen maintained that, for the jury to determine such issues (i.e. with regard to Article 3) it would not be necessary for them to conclude that any act or omission that violated the deceased’s Article 3 rights was one that, on the balance of probabilities, caused or contributed to the death.

[119]Mr Bowen therefore submitted that, where an inquest is to be conducted into the circumstances surrounding a death in custody in order to comply with the Article 2 investigative obligation, then the equivalent Article 3 procedural obligation would require the inquest to examine also any arguably inhuman or degrading treatment that is relevant to the circumstances of the death, such as the circumstances that arose in Keenan. It was Mr Bowen’s submission that such facts (i.e. relating to inhuman or degrading treatment) need not be proved to have caused or contributed to the death in question.

[120]However, I agree with both Ms Richards and Mr Hough that, on analysis, the Article 3 procedural obligation provides no support for the Claimant’s arguments in this case. The investigative obligations under Articles 2 and 3 are quite separate and distinct and an inquest cannot normally be the method by which the procedural obligation under Article 3 will be discharged. An inquest is concerned to examine the events leading to death. It is not required to investigate any and all allegations of ill treatment. Most cases in which a breach of Article 3 may be alleged do not involve fatalities and thus will not result in an inquest.

[121]In short, I am satisfied that there is no logical or necessary connection between the Article 2 and the Article 3 procedural obligations. I accept Ms Richards’ submission that, even if an arguable breach of Article 3 arises in a case where there has been a death (in custody or otherwise), it simply does not follow that it is a function of the inquest to investigate that breach. Indeed, as I have already observed, by definition most Article 3 investigations will not take place within an inquest because there had been no death.

[122]For those reasons, therefore, I am satisfied that this ground of challenge also fails.

[123](5) The Fifth Ground of Challenge. Mr Bowen submitted, fifth, that the Coroner must, in appropriate circumstances, have power to leave questions to the jury concerning matters that are not the cause, or did not contribute to the cause, of the death because the function of the Coroner to make recommendations under rule 43 is insufficient to discharge properly the Article 2 procedural obligation. It was Mr Bowen’s submission that if the inquest is to fulfil properly the function of identifying(i) those factors which are relevant to the circumstances of the death (see ground 1 above), or

(ii) those which may have caused a violation of the substantive obligation under Article 2 (see ground 2), or

(iii) those which amount to failings in the regulatory system (see ground 3) or

(iv) those which constitute a violation of the substantive obligation under Article 3 (see ground 4), then it will be necessary for evidence relating to those matters to be called. Mr Bowen contended that, in those circumstances, it is not for the Coroner to resolve any conflict in the evidence relating to any of these matters in his rule 43 report, but for the jury to do so in their verdict/findings. He submitted that once it is accepted that a matter is one that is suitable for determination by the inquest, in the ordinary course of events it is the jury who should be asked to resolve it.

[124]In my view, this particular ground adds nothing and appears only to arise if any of Mr Bowen’s first four grounds are made good (see paragraph 108 of Mr Bowen’s written skeleton argument) and, for the reasons given above, I am satisfied that none was.

[125]In any event, for the reasons already given, I am satisfied that the Article 2 procedural obligation does not require an investigation on matters that are not causally relevant to the death in question. However, both domestic and Convention law recognises that one collateral benefit of a thorough inquiry is that lessons can be learned for the future and rule 43 of the 1984 Rules provides a mechanism whereby a coroner can assist public authorities to learn appropriate lessons for the future.

[126]The power to make a report under rule 43 is specifically reserved to the coroner. As Mr Hough observed, when making such a report, the coroner may well wish to consider the findings of the jury. However, there is no obligation upon the coroner to put sufficient questions to the jury to provide the factual foundation for any rule 43 report that he consider it appropriate to make. I agree with Ms Richards that rule 43 permits the coroner to form his own views as regards the evidence and the concerns to which it has given rise. There is nothing in any of the authorities to say that the jury’s verdict must include findings on all matters relevant to the substance of a contemplated rule 43 report, which is essentially an administrative act on the part of the coroner.

[127]For the foregoing reasons, therefore, I am satisfied that there is nothing in this particular ground.

[128](6) The Sixth Ground of Challenge. This sixth ground or reason is more in the nature of a makeweight, rather than a discrete ground of challenge. It was Mr Bowen’s submission that the Claimant’s approach does not lead to the undesirable consequences suggested by both the Coroner and the Secretary of State. Given my conclusions with regard to the first five grounds (in particular the first four), it is not necessary for me to given detailed consideration to this particular aspect of the matter. However, I am bound to say that I do consider there to be considerable (indeed compelling) force in the points made in paragraphs 63 to 71 of Mr Hough’s written skeleton argument, to which I refer but do not repeat. JR1: Conclusion

[129]I have come to the firm conclusion that the Claimant’s criticism of the Coroner’s ruling in this case is not made out. In my view, his ruling was correct in law and cannot be faulted. In short, for all the foregoing reasons, I am satisfied that, whilst a coroner has the power and may well consider it appropriate to conduct a wide ranging investigation that extends further than is required for the verdict, neither the Strasbourg nor the domestic jurisprudence require the investigation of, still less the expression of conclusions upon, events and matters that neither caused nor contributed to the cause of the death in question in order to render the inquest Article 2 compliant. In an inquest where Article 2 is engaged, the coroner should rule and/or direct the jury accordingly, as the Coroners in both JR1 and JR3 proceeded to do in this case. This particular application must therefore be and is hereby dismissed. JR2: The Factual Background

[130]On 24th October 2004, whilst he was an inmate at HMP Pentonville (“Pentonville”), Paul Calvert was found hanging by a belt tied around his neck and secured to the bars of his cell window. He was dead when found and was then aged 40. The inquest into Paul’s death took place on 26th to 29th March 2007 at St Pancras Inner North London Coroner’s Court. In the paragraphs that follow I summarise the essential facts and the main features of the evidence heard at that inquest.

[131]Events prior to Paul’s death.Paul had a history of self-harm and suicide attempts and, at the material time, was in the process of detoxifying from a number of illegal drugs. When Paul appeared at Thames Magistrates’ Court on 22nd October 2004, his solicitor thought that Paul was in a very bad state. On that particular day, Paul was remanded in custody to Pentonville. However, his solicitor’s concerns were such that he asked the custody officers to note that Paul was at risk of self-harm or suicide. The officer escorting Paul to Pentonville filled in a Prisoner Escort Report (“the PER”) and duly noted that Paul was at risk of self-harm or suicide.

[132]Paul arrived at Pentonville at about 6.30pm on 22nd October. At reception, he was seen by Health Care Officer Harrison, who then carried out a self-harm assessment in accordance with the requirements of paragraph 2.2 of PSO 2700 as part of the “First Reception Health Screen”. However, the efficacy of HCO Harrison’s assessment was significantly undermined because he did not receive or see a copy of Paul’s PER form. Furthermore, none of the other prison staff responsible for Paul’s care, including Nurse Saud (who prescribed methadone and diazepam for Paul as his detoxification medication: see below) received or saw his PER form, although Paul did tell Nurse Saud that he was hepatitis C positive. In the event, HCO Harrison did not put any measures in place to protect Paul from self-harm, in particular by opening a form F2052SH.

[133]There were also a number of factual inaccuracies in Paul’s First Reception Health Screen; e.g. HCO Harrison had circled the “No” in response to questions that should have been answered with a “Yes”, such as:

“Have you had a BCG?” “Do you have any concerns about your physical health?” and “Have you ever tried to harm yourself?”

Furthermore, HCO Harrison wrote down little information under the self-harm assessment. In the course of his evidence, HCO Harrison noted that there were 80 prisoners coming through reception at the same time as Paul, all in the space of about one hour late on a Friday evening, and that there was either one or two staff present at the time.

[134]Paul had previously been at Pentonville during April/May 2004 and, following an incident of self-harm, he had been put on the form F2052SH system, which is designed to protect those considered to be at risk of suicide and entails a range of protections such as observations and regular multi-disciplinary case reviews. This information would have been significant to those assessing Paul’s risk of suicide on his reception at Pentonville on 22nd October, but none of the details was retrieved and/or provided because it appears that it was administratively inconvenient to do so at the time.

[135]Paul was medically assessed by the prison doctor, Dr Khan, later on the 22nd October as part of about 20 to 30 such assessments that the doctor carried out in a two hour period that evening. Dr Khan’s assessments were brief. He noted that Paul had been taking drugs (including heroin and cocaine) and that he had been drinking five cans of Super Tenants daily. Dr Khan also noted that a person withdrawing from the quantity of drugs that Paul was taking is at an increased risk of suicide. However, he said that he had found Paul “no different from most of the inmates that come to Pentonville” in terms of responsiveness and communication and noted his mental condition as stable.

[136]Nurse Saud also saw Paul on the evening of 22nd October, in order to assess whether he needed to see a doctor for detoxification treatment. Nurse Saud stated that Paul was exhibiting a number of withdrawal symptoms. As already indicated, Nurse Saud prescribed methadone and diazepam for Paul’s detoxification medication. Nurse Saud assessed Paul again at 9.30am on the following morning and once more on 24th October. On those occasions she noted no appearance of any mental health symptoms and viewed him as “completely normal” and as one who was “coping very well”.

[137]There were differing reports as to how Paul presented over the next couple of days following his arrival at Pentonville. Some prison officers thought that he seemed fine. Others, including other inmates and Paul’s girlfriend, said that they had serious concerns about his mental state and suicide risk. Mr Quereshi, who was an inmate and “listener” at the time and who talked to Paul after his arrival at Pentonville, said that he had “never seen anyone so distressed before”. Mr Quereshi stated that he told prison officers about his serious concerns about Paul’s mental state and risk of suicide. The officers denied this and there was no evidence that the prison took any steps to address those concerns, such as by carrying out another self-harm assessment.

[138]The events of 24th October 2004.On 24th October 2004, Paul was returned to his cell on the fifth floor of E-Wing before lunch. E-Wing is quite small and, rather confusingly, each floor on the Wing was given a number two above the actual number of the floor itself. Thus, the ground floor was called floor 2 and the third floor was called floor 5. At about 12.30pm, Paul’s cellmate was moved out of their shared cell, leaving Paul locked in it, alone. This was the last time that Paul was seen alive, i.e. at about 12.30pm

[139]Each prison cell on the wing contained an emergency cell alarm that could be activated by an inmate pressing a button situated inside the cell, next to the door. The cell alarm is for use in emergencies and life-threatening situations. Activation of a cell alarm should result in officers attending the inmate’s cell immediately. However, at Pentonville a practice had developed in which officers often asked inmates to answer emergency cell alarms.

[140]Once the emergency cell alarm is pressed, a light on the outside of the cell would also come on. In addition, there was an indicator panel of cell bell alarm lights on floor 2 (the ground floor) of E-Wing. This panel contained two lights for each floor, one of which would light up if an emergency cell alarm in a cell on the corresponding floor had been activated. The indicator panel also had a buzzer designed to and capable of making a loud buzzing noise when an emergency cell alarm was activated. However, the buzzer on the E-Wing indicator panel (and that on the equivalent indicator panel on A-Wing) had been disabled so that it did not make any noise when a cell alarm was activated. The evidence showed that the audible alarms on both indicator panels had been disabled for a considerable period of time. One witness stated that they had been disabled for over 18 months. Furthermore, at the time, there was no maintenance system at Pentonville whereby the audible alarms were checked in order to ensure that they were working correctly.

[141]The prison officers responsible for patrolling the Wing during the lunch break and during the early afternoon were POs Taylor and Cummings. The purpose of the officers being on patrol is to walk around the landings, see that everything is in order and to answer cell alarm bells. The inmates were locked in their cells over the lunch period. At about 2pm some inmates were let out of their cells, in particular those who were asked to do tasks such as cleaning. However, Paul remained locked in his cell. At the inquest, there was a major conflict of evidence as to what happened next, in particular whether the officers ignored, overlooked or failed to notice the activation of Paul’s emergency cell alarm. However, importantly, PO Cummings did express the view that the alarm should have been answered within about 30 seconds of activation and, in his evidence (as to which, see below) Mr DelGaudio, the Prison and Probation Services Ombudsman (“Mr DelGaudio”), agreed with that estimate of the appropriate response time (i.e. within about 30 seconds).

[142]A number of inmates stated that they saw an illuminated light on the E-Wing indicator panel indicating that Paul’s emergency cell alarm had been pressed. One inmate, Mr Leer, occupied a cell directly opposite the E-Wing indicator panel and about 3 metres from it. Mr Leer said that he was sure that the light corresponding to Paul’s cell lit up at about 1.30pm to 1.50pm. Mr Leer was let out of his cell at 2pm and stated that between 2pm and 2.30pm PO Cummings and PO Taylor were watching or playing backgammon.

[143]Neither PO Taylor nor PO Cummings responded to the emergency light, although some prisoners claimed that PO Cummings would have seen it. PO Cummings accepted that he had been playing and watching backgammon for a considerable part of the period between 1.50pm and 2.30pm. All the prisoners that saw PO Cummings during this period stated that he remained on the ground floor the whole time.

[144]For his part, PO Taylor claimed that he had spent much of the time in his office. As Mr Southey pointed out, there were a number of significant inconsistencies between the accounts given by the two officers with regard to the steps that they took to check on alarms during this period that are summarised in paragraph 26 of Mr Southey’s written skeleton argument to which I refer but do not repeat.

[145]Paul’s death. At about 2.30pm, one of the inmates, Mr Manning, who had been let out of his cell at 2pm, went to check why the light relating to Paul’s emergency cell alarm had been activated. When he arrived at Paul’s cell, Mr Manning discovered him hanging by a belt tied around his neck. He immediately raised the alarm by shouting, as a result of which both PO Cummings and PO Taylor went to Paul’s cell.

[146]Paul’s belt had been tied to the bars of the cell window. The cell window was situated at the opposite end of the cell from the emergency cell alarm button, about 12 feet away. It was thus not possible for a person to reach the alarm button from the window end of the cell. There were some radiator pipes below the window, the bottom of which was about 6 feet from the floor. It would therefore have been necessary for Paul to stand on the radiator pipes in order to tie his belt to the window bars.

[147]The configuration and dimensions of Paul’s cell were such that it was apparent that he must have activated his emergency cell alarm before proceeding to the window where he then took the necessary steps to hang himself. This process would have taken him several seconds, even it done as quickly as possible. There were a number of indications that, when he was found, Paul had been dead for more than 15 minutes; for example, the urine on his underwear, which he had passed when he hung himself, was already half dried when he was discovered. The evidence therefore suggested that Paul had activated his emergency cell alarm more than 10 to 15 minutes before he was found.

[148]Mr DelGaudio gave evidence to the following effect, inter alia:(1) There were a number of disturbing failings: PO Cummings should have seen and responded to the emergency cell alarm very much sooner than he did.

(2) The emergency cell alarm indicator panels were found to have been tampered with so that their audible alarms no longer sounded when an emergency cell alarm bell was pushed. The indicator panels were reported to have been in this condition for many months, and it was inconceivable that senior staff could have been unaware of this fact.

(3) It was Mr DelGaudio’s view that:

“the state of the cell bell system is of great concern … I am astonished that there are no system checks of maintenance programmes in place to identify that these panels were faulty.”

[149]When Paul was first discovered, PO Cummings supported his body, whilst PO Taylor climbed on to a chest of drawers, opened the window and removed the belt from the window bars. Paul was then lowered to the floor. Apparently, it was not possible for the prison officers to raise the alarm from floor 5. PO Taylor therefore left PO Cummings to administer CPR to Paul, whilst he went to the ground floor in order to radio for help and state that there was an emergency.

[150]Shortly after PO Taylor returned to the cell, Nurse Jones, Nurse Boateng and other officers arrived at the scene as a result of the emergency call. Nurse Jones noticed that Paul’s belt was still tied around his neck and was extremely tight. Nurse Jones therefore used his “fish knife” to cut the belt. The prison officers who were first on the scene were not equipped with fish knives and had been unable to loosen the belt.

[151]The prison doctor, Dr Khan, was still inside the prison when the emergency alarm was raised. However, he was not summoned to Paul’s cell and was permitted to leave the prison and go home.

[152]The Home Office pathologist, Mr Fegan-Earl, gave evidence and stated that it would be both inaccurate and wrong to specify a time of death on the available evidence. However, he also gave evidence as to how long it would have taken a victim to die in the same circumstances as Paul, which was to the following effect (inter alia):

“[The victim] will lose consciousness within just a few seconds and thereafter, if the ligature is not removed within 3 or 4 minutes, certainly that individual will be dead. They may well die much sooner, because of pressure on vital nerves that control heartbeat. So it is a very rapid situation from the moment of hanging to the moment of irreversibility. … … [After 3 to 4 minutes the brain will become irreversibly damaged] … Potentially, if someone is found earlier you may get a response to resuscitation, but I would also say that in cases of full suspension like this, my experience is that they are extraordinarily difficult to resuscitate successfully.”

[153]The Summing-Up and Verdict. It was Mr Southey’s submission that there was evidence at the inquest upon which the jury, properly directed, could have come to the following conclusions (see paragraph 13 above, but repeated for convenience).(i) There was a failure to ensure that the Prison Escort Report in Paul’s case was received by those assessing Paul on his reception at Pentonville, in particular by the officer conducting the suicide risk assessment within the First Reception Health Screen.

(ii) The First Reception Health Screen suicide risk assessment was inadequate.

(iii) There was insufficient staff at reception on the evening of 22nd October 2004 to conduct the reception process properly.

(iv) The prison officers failed to pay adequate attention to concerns expressed about Paul’s suicide risk.

(v) The prison officers seriously failed to pay proper attention to the emergency alarm panels from 1.40pm to 2.30pm on 24th October 2004.

(vi) The prison officers wrongly expected inmates to answer Paul’s emergency cell alarm, rather than responding themselves.

(vii) The audible signal from the emergency alarm panels on E and A wings had been disabled for a substantial period.

(viii) The prison failed to take proper steps to repair the audible signal on the emergency alarm panels in E and A wings.

(ix) There was no appropriate system of checks and maintenance on the emergency alarm panels in E and A wings.

(x) The prison officers did not have appropriate tools to cut the belt from Paul’s neck, such as a “fish-knife”. It should be noted, however, that the circumstances of this case were such that it could not be proved that the suggested possible conclusion (x) was a factor that was causally relevant to Paul’s death. Accordingly, for the reasons given above in JR1, it would not have been open to the jury, properly directed, to express any factual conclusion to that effect as part of their narrative verdict.

[154]On 29th March 2007, it was submitted on behalf of Paul and his family:(i) that the Coroner should leave the ancillary verdict of “neglect” to the jury, i.e. that the jury should be permitted to find that one of the short-form verdicts (such as accidental death and suicide) was contributed to by neglect; and

(ii) that the Coroner should give the jury a written non-exhaustive list of issues in relation to which they should consider making factual conclusions.

[155]On the same day, the Coroner rejected both submissions. He refused to give the jury any written guidance or list of questions and stated that he would not leave “neglect” to the jury for the following reasons:

“I’m not satisfied that the criteria for a Jamieson neglect conclusion can be reached in this case, because of the problems that there are with causation and that whatever acts or omissions there were in this case, the evidence taken as a whole would not make it appropriate to leave a Jamieson type neglect conclusion to the jury, because of the difficulties that do exist with causation that is directly relevant to the cause of death.”

[156]The Coroner then summed up and directed the jury (inter alia) on the verdicts that were available to them, as follows (quoted in part in paragraph 14 above, but repeated for convenience):

“Having considered the time, place and circumstances in which Mr Calvert hanged and your conclusions, when deliberating on the time, place and circumstances in paragraph 4 of the Inquisition, you may, and I invite you as I am now allowed to do, you may make factual conclusions in the Inquisition briefly summarised that expands on those three conclusions that I’ve given you in paragraph 4. You may, in paragraph 3, give some narrative, or use some words, that describe by what means and in what circumstances the death occurred. You must not use expressions of civil liability such as neglect, negligence, carelessness, recklessness, or negligently. You mustn’t use words like “because”, or “contributed to”

. However, you may, and it’s a matter for you members of the jury, make non-judgmental conclusions about the facts, descriptions of acts or omissions maybe recorded by you, using such words as “at that time” or “when” that indicate a chronology of acts or omissions that form part of the means and circumstances of the deceased’s death … And it’s a matter for you members of the jury, you may stick to traditional short form findings in paragraph 4 or you may expand in paragraph 3 on key findings providing you use neutral non-judgmental descriptive language about the circumstances in which Mr Calvert died that Sunday afternoon and any other circumstances that you’ve heard providing it’s a factual basis for it, providing there’s been evidence that this or that happened as you see the evidence, simply describe the circumstances that occurred.”

[157]The jury retired at 2.17pm and returned with their verdict at 3.43pm the same day. They gave a majority verdict, with which 7 of the 9 jurors agreed. They found the cause of death was hanging, their short-form verdict was “Misadventure” and in paragraph 3 of the Inquisition, they recorded the following narrative verdict (see paragraph 15 above, but repeated for convenience):

“On 24th October 2004 between the hours of 12.30 – 2.30pm Mr Paul Darren Calvert died in his cell at HM Prison Pentonville. Between the 21-10-04 and 24-10-04 there were systemic failures. Incomplete paperwork, lack of communication, disablement of cell bells, breech (sic) of security.”

JR2: The Parties’ Submissions.

[158]Ground 1: Incorrect Narrative Verdict Direction. It was Mr Southey’s submission that there is no authority that permits a Coroner to prevent the jury in a Middleton inquest from reaching and recording judgmental conclusions of a factual nature. He therefore submitted that the Coroner was in error when he directed the jury in the present case that they must make neutral, non-judgmental conclusions about the facts. In support of that submission, Mr Southey referred paragraph 37 of Middleton (quoted above) and paragraph 30 of Lord Brown’s speech in Jordan:HoL, where he said this:

“… there could be no objection to a judgmental conclusion of a factual nature, directly relating to the circumstances of death.”

[159]Mr Southey also referred to and relied upon the recent judgment of Keith J in R (Cash) ~v~ HM Coroner for Northamptonshire

(2007) 4 All ER 903

(“Cash”: a case that involved the death of a man in police custody). In the course of his summing up, the Coroner had directed the inquest jury that their verdict should be “neutral and factual” and that “[n]o judgment or opinion should be expressed. Keith J decided that this direction was unlawful and infringed Article 2, because it prevented the jury from embodying judgmental conclusions of a factual nature in their verdict. At paragraphs 52 and 53 of his judgment, Keith J said this:

“52 … the coroner’s direction to the jury about the content of the narrative verdict which they should complete in box 3 had the effect of preventing them from embodying in it “a judgmental conclusion” of a factual nature on the disputed factual issues at the heart of the case. That – and the coroner’s decision not to leave a verdict of unlawful killing for the jury to consider – had the result of the inquest failing to arrive at a “determination of whether the force used … was or was not justified in the circumstances” as required by Jordan at [107]. In that respect, the inquest proved not to be an effective mechanism by which the UK’s obligation under Article 2 was to be discharged. 53 …if the direction which the coroner gave the jury on the content of the narrative verdict had the effect of none of the police officers being held to account, even if the jury had thought that one or more or them had used excessive force, it had to follow that a new inquest should be ordered in that eventuality as well. For these reasons, I quash the jury’s inquisition, and I order a fresh inquest into the death of Mr Cash.”

[160]Mr Southey submitted (correctly, in my view) that these authorities make it clear that, provided there is no infringement of rules 36 and 42 of the 1984 Rules, a jury’s verdict in a Middleton type inquest can properly embody a judgmental conclusion of a factual nature.Mr Southey submitted that the Coroner’s directions on this aspect of the matter in the present case were plainly wrong in law. I agree.

[161]Mr Southey also submitted that the Coroner erred in directing the jury not to use words such as “because” or “contributed to”. As Mr Southey pointed out, the specimen verdict commended in Middleton (see paragraphs 38 and 45 of Lord Bingham’s speech) expressly makes use of “because”. Again, I agree with that submission.

[162]Mr Southey went on to suggest that, as a result of the Coroner’s erroneous directions (“the directions”), the jury in the present case had been wrongly inhibited and/or prevented from arriving at and making judgmental conclusions of fact that did not involve any infringement of rules 36 and 42 but which, nevertheless provided factual conclusions of the nature and type listed in paragraph 153 above with regard to the central issues raised at the inquest.

[163]Mr Southey pointed out that it is clear from the matters listed in paragraph 153 above that the jury did not record any factual conclusions on several of the central issues that had been raised at the inquest. It was his submission that, if the reason the jury did not come to a particular conclusion was that they had rejected the relevant evidence, this should be clear from their verdict. Mr Southey submitted that in this case it is not at all clear why the jury did not come to certain of the possible factual conclusions relating to the central issues in this case. He suggested that the reason might have been the Coroner’s erroneous directions.

[164]By way of example, Mr Southey referred to the central issue relating to the failure of POs Cummings and Taylor to respond to Paul’s emergency cell alarm. Understandably, Mr Southey referred to this particular matter as the most important issue at the inquest, both in terms of its significance and the amount of time spent in exploring it in evidence. Mr Southey submitted that it was particularly surprising that the Jury made no comment at all on this issue (see, in particular, possible conclusions (v) and (vi)), because (inter alia) PO Cummings had effectively admitted in evidence that he was not paying proper attention to the alarms at the material time because he was playing and watching backgammon.

[165]Mr Southey submitted that it would be very difficult to express a factual conclusion on this issue that was not judgmental or that did not involve a qualitative judgment. He therefore suggested that the reason for the surprising absence of any factual conclusion by the jury on this particular issue may well have been that the jury simply could not think of a way to observe the Coroner’s directions (i.e. the erroneous directions) and to do so in a manner that was neutral, non-judgmental and avoided the use of the words “because” and “contributed to”. I agree with that submission.

[166]Mr Southey also submitted that the jury’s narrative verdict presents significant difficulties in interpretation. He suggested that it was not at all clear to what jury was referring by the expressions “systemic failures”, “incomplete paperwork”, “lack of communication” and “breech of security”. He submitted that, in this respect, the verdict consequently has little or no value. It was Mr Southey’s submission that the Coroner’s directions may well be the reason that the jury’s verdict is so uninformative.

[167]Mr Southey submitted that, in all the circumstances, the essential purpose of the inquest has been significantly undermined: the verdict does not give the family the satisfaction of knowing that lessons will be learnt from the circumstances of Paul’s death and the prison and those assessing its performance later have been provided with no basis for knowing what went wrong and what should be changed.

[168]It was Mr Southey’s further submission that the Coroner’s directions wrongly restricted the ability of the inquest to meet certain requirements of the Article 2 procedural obligation: i.e. that culpable and discreditable conduct is exposed and brought to public notice, that dangerous practices and procedures are rectified, that the risk of future loss of life in similar circumstances is minimised and that those who have lost their relative may at least have the satisfaction of knowing that lessons learned from the death may save the lives of others: see paragraph 31 of the speech of Lord Bingham in Amin, quoted in paragraph 44 above. Mr Southey contended that the Coroner’s directions meant that the inquest was simply not a sufficiently effective tool in satisfying the State’s obligation to address the acute problem of suicide in custody.

[169]For her part, Ms Richards accepted that there is no legal bar to the jury using the words “because” or “contributed to” in their verdict. She also accepted that the decisions in Middleton and Jordan makeit clear that an inquest jury’s verdict can properly incorporate judgmental conclusions of a factual nature directly relating to the circumstances of the death in question, provided there is no infringement of rules 36 and 42 of the 1984 Rules: see paragraph 20 of Ms Richards’ written skeleton argument. As it seems to me, Ms Richards effectively accepted that the Coroner had misdirected the jury in the respects identified in paragraphs 160 and 161 above. In my view, she was right to do so.

[170]It was nevertheless Ms Richards’ submission that the Coroner’s directions must be considered in the context of the entire summing up. She submitted that, when considered in their full context, the directions did not prevent the jury from formulating a narrative verdict on identified shortcomings in the system or in the way in which Paul was treated and managed in prison. She submitted that the context suggests that the Coroner had in mind the need for the jury to avoid conclusions with regard to civil or criminal liability when he used the expression “non-judgmental”, not that he was directing or inviting the jury to ignore any deficiencies or shortcomings in the prison’s treatment and care of Paul. In short, it was Ms Richards’ submission that, when the Coroner’s summing up is considered as a whole, his erroneous directions were not such as to prevent the jury from reaching appropriate factual conclusions with regard to the circumstances leading up to Paul’s death and incorporating those conclusions into an appropriate narrative verdict.

[171]It was Ms Richards’ further submission that, in all the circumstances and considered as a whole, the inquest was a sufficient discharge of the State’s investigative obligation under Article 2. She stressed that the Article 2 investigative obligation is an obligation of means rather than result (see paragraph 107 of Jordan:EHRR) and that the absence of certain factual conclusions by the jury with regard to some of the issues at the inquest did not mean that the duty to investigate had not been complied with. She suggested that the jury’s narrative verdict did provide a number of factual conclusions with regard to the main issues raised at the inquest and she emphasised that it was accepted that, so far as concerns the evidence called, the inquest’s investigatory function was carried out excellently (see paragraph 43 of Mr Southey’s written skeleton argument). She stressed that the Coroner’s erroneous directions had not prevented the jury from incorporating into its narrative verdict their conclusion that they considered that there had been “failures” on the part of the prison, nor did those directions prevent the jury from spelling out the principal factual matters that they identified as comprising those failures. Ms Richards further contended that the suggestion that the prison/Prison Service have no basis for knowing what went wrong and what should be changed, simply ignores the detailed findings of the Prison and Probation Ombudsman’s investigation and the detailed exploration of the circumstances leading up to Paul’s death.

[172]I have come to the firm conclusion that Mr Southey is correct in his submission that the Coroner’s directions to the jury were wrong, even when considered in the context of the entire summing-up. As Mr Southey observed, the Coroner’s directions to the jury, that they were to use neutral, non-judgmental language in their verdict and that they were to avoid the use of words like “because” and “contributed to”, were clearly expressed and remained uncorrected. In my view, these were significant misdirections that were bound to have had an important effect on the jury’s deliberations. I accept the submission that it is very likely that these significant misdirections prevented the jury from making narrative conclusions that they would otherwise have done – although, for the reasons explained in paragraph 153 above, this could not have included the suggested possible conclusion (x). That the jury was wrongly inhibited in this manner is, as it seems to me, clearly demonstrated by the very limited and non-specific nature of the narrative verdict they did feel able to return and the fact that the verdict omitted factual findings with regard to a number of the important issues raised at the inquest, in particular with regard to the critical issue of the failure of the officers to respond to Paul’s emergency cell alarm.

[173]Accordingly, like Keith J in Cash, I am satisfied that the Coroner’s directions had the effect of preventing the jury from embodying judgmental conclusions of a factual nature on a number of the disputed factual issues at the heart of the case, as submitted by Mr Southey. In my view, therefore, the inquest was not an effective means for the proper discharge of the Article 2 procedural obligation and I reject Ms Richards’ submissions to the contrary effect. Accordingly, this first ground of challenge succeeds.

[174]Ground 2:Failure to leave the Verdict of Neglect. It was Mr Southey’s submission that the Coroner fell into error when he decided that he would not leave the ancillary verdict of neglect to the jury.

[175]Mr Southey agreed with Ms Richards that the primary authority on neglect is Jamieson: see conclusions (9) to (12) at pages 25B to 26A of Sir Thomas Bingham’s judgment (quoted in paragraph 31 above and repeated in part for convenience) where he said this (inter alia):

“(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 … who cannot provide it for himself. … (11) … On certain facts it could possibly be correct to hold that neglect contributed to that cause of death [i.e. suicide] … Such a finding would only be appropriate in a case where gross neglect was directly connected with the deceased’s suicide (for example, if a prison warder observed a prisoner in his cell preparing to hang a noose around his neck but passed on without any attempt to intervene). (12) Neither neglect nor self-neglect should ever form any part of any verdict unless a clear and direct causal connection is established between the conduct so described and the cause of death.”

[176]Mr Southey went on to submit that the standard of proof is the balance of probabilities and that the neglect in question need not be confined to the acts of one individual. Acts or omissions by different individuals and system failures may combine to form a “total picture that amounts to neglect”: see R (Scott) ~v~ Inner West London Coroner (2001) 165 JP 417 at paragraphs 13 and 29. In that case, a number of failings and omissions on the part of the prison, including leaving the deceased in his cell overnight without proper provision of medical treatment, were held to be capable of amounting to neglect. Similarly, in R ~v~ Wiltshire Coroner, ex parte Clegg (1997) 161 JP 521 it was observed that neglect may be a “continuous sequence of shortcomings.”

[177]Mr Southey submitted that the gross failure constituting the neglect need not be the sole or predominant cause of death, although it must have contributed to the death in question more than minimally, negligibly or trivially. Thus at page 675G of R v Coventry Coroner, ex parte The Chief Constable of Staffordshire (2000) 164 JP 665 (“Staffordshire”), Tomlinson J noted that:

“The key to the proper approach here is, in my judgment, an appreciation that the expression “clear and direct causal connection” was not used by the Master of the Rolls in the Jamieson case in the same sense in which such words might be used when considering whether a breach of contract or a tort has caused recoverable damage or, perhaps most pertinently, when considering whether the cause of a loss is to be found within a list of insured or excluded perils in a policy of insurance. … the causal connection which is relevant in the context of consideration by an inquest jury of the addition of a neglect rider is, in my judgment, not the same as the causal connection for which one may look in the context of other, perhaps more familiar, enquiries. The touchstone in the present context is, I believe, the opportunity of rendering care, in the narrow sense of that word, which would have prevented death.”

In Staffordshire, it was held that it was open to the jury to have concluded that neglect contributed to the death on the basis that the deceased should not have been left alone by the police in an exercise yard, but that medical attention should have been sought.

[178]Mr Southey submitted that, when considering whether to leave the ancillary verdict of neglect to the jury, a Coroner should apply an equivalent test to that described in R ~v~ Galbraith

(1981) 1 WLR 1039

, i.e. that the issue should be left to the jury if there is evidence upon which the jury, properly directed, could return such a verdict. Mr Southey also contended that, in reviewing the Coroner’s decision on this aspect of the matter, the court should not ask whether his assessment of the evidence was Wednesbury unreasonable. Rather, the court should itself decide whether there was evidence upon which a properly directed jury could have returned the verdict in question: see Cash at paragraphs 22 to 25.

[179]As it seems to me, Ms Richards did not take serious issue with the propositions of law put forward by Mr Southey, as summarised above. She stressed that it is clear from the authorities that the evidence must establish a clear and direct causal connection between the conduct complained of and the cause of the death in question before a jury can return a neglect verdict: see conclusion (12) in Jamieson at page 26A, quoted above. It was therefore Ms Richards’ submission that the Coroner’s reason for deciding that it was not safe to leave an ancillary verdict of neglect to the jury (see paragraph 155 above) correctly reflected the specific requirements identified in Jamieson.

[180]Ms Richards submitted that an objective analysis of all the evidence (see, for example paragraph 46 of Ms Richards’ written skeleton argument) showed that the Coroner was right in his conclusion that it was not appropriate to leave the ancillary verdict of neglect to the jury because there were “difficulties” with regard to causation “directly relevant to the cause of death.” Put shortly, it was Ms Richards’ submission that the Coroner was right to conclude, as he did, that the evidence in the present case was not capable of establishing the necessary clear and direct causal connection between the alleged “gross failures” and the cause of Paul’s deathand that, therefore, the Coroner’s decision not to leave “neglect” to the jury was entirely correct.

[181]For his part, Mr Southey submitted that there was more than enough evidence upon which a properly directed jury could have reached a verdict of misadventure contributed to by neglect in this case. It was his submission that there was evidence of a series of failings that, individually or in aggregate, could have been properly characterised by the jury as “gross failures” contributing to the cause of Paul’s death, thus justifying an ancillary verdict of neglect. In support of that submission, Mr Southey referred to the following (inter alia):(i) the evidence relating to the failure by POs Cummings and Taylor to pay any attention to Paul’s emergency cell alarm for a period of up to 50 minutes because (inter alia) they were playing or watching backgammon;

(ii) the evidence with regard to the practice of asking or expecting inmates to respond to emergency cell alarms;

(iii) the evidence relating to the fact that the audible buzzer on the emergency alarm indicator panel on E-Wing had been disabled for over 18 months and that senior staff must have been aware of this situation; and

(iv) the evidence of systemic failures to check and maintain the full integrity of the cell emergency alarms for a period in excess of 18 months.

[182]Mr Southey submitted that there was also ample evidence upon which a properly directed jury could have been satisfied as to the necessary clear and direct causal connection between each and all of the foregoing “gross failures” and the cause of Paul’s death. It was his submission that there was substantial evidence to establish the following clear chain of causation.(i) Paul’s emergency cell alarm should have been answered within 30 seconds of him activating it.

(ii) At some time after 12.30pm, Paul activated his cell alarm, which was next to his cell door. Having done that, he then went the 10 to 12 feet to the window at the back of his cell where he stood on the radiator pipes, tied the belt round his neck and secured it to the window bars. All of this would have taken a significant number of seconds to do, even if done as quickly as possible.

(iii) Each and all of the failures identified in paragraph 181 above caused or contributed to the fact that officers did not respond to Paul’s emergency cell alarm within a reasonable time or at all.

(iv) Once Paul slipped or fell from the radiator pipes, there was a period during which, on the balance of probabilities, he could have been successfully resuscitated. If the officers had arrived within the proper response time (i.e. within 30 seconds), no more than 10 to 20 seconds (possibly less) would have elapsed from the time Paul hanged himself. It would have been open to the jury to infer that, in those circumstances, the belt could have been removed from his neck and that Paul would have survived. In the likely event that resuscitation was required, the fact that it is difficult in such circumstances does not mean that it is unlikely to succeed.

[183]Mr Southey pointed out that the jury did make some relevant criticisms of the prison and submitted that, in all the circumstances, they might have returned a verdict of “misadventure contributed to by neglect” if neglect had been left to them by the Coroner as it should have been.

[184]I have come to the firm conclusion that the Coroner was in error when he decided not to leave the ancillary verdict of neglect to the jury in this case. I accept Mr Southey’s submission that there was clear evidence of the various failings identified in paragraph 181 above and that each and all of these failings could have been properly characterised by the jury as “gross failures” on the part of the prison and its staff. I also agree with Mr Southey, for the reasons that he advanced, that there was a body of evidence from which the jury could have properly concluded that each and all of these “gross failures” formed part of a clear and direct chain of causation leading to Paul’s death and that each and all of these gross failures thus contributed to the cause of that death. I therefore agree with Mr Southey that there was evidence upon which the jury, properly directed, could have returned a verdict that included the rider “contributed to by neglect”. I am therefore satisfied that, if the Coroner had left the ancillary verdict of neglect to the jury as he should have done, there is a very real possibility that the jury would have returned a verdict that included that important rider and I reject Ms Richards’ submissions to the contrary effect. For those reasons, therefore, the second ground of challenge also succeeds. JR2: Conclusion. I have come to the firm conclusion that the Coroner’s errors, as identified in the two grounds of challenge in this case, prevented the jury from considering and returning a verdict on a key issue (neglect) and might have prevented them from returning a narrative verdict that included factual conclusions on the main issues that they would otherwise have done. In those respects, there was a violation of the Article 2 procedural obligation. For those reasons, therefore, the inquisition must be quashed and a new inquest ordered. JR3: The Factual Background

[185]On 28th August 2004, whilst he was an inmate at HMP Bullingdon (“Bullingdon”), Stephen Woods died by hanging himself from a ligature secured to the light fitting in the ceiling of his cell. He was then aged 23. The inquest into Stephen’s death took place between 26th and 28th June 2007 at the Oxfordshire Coroner’s Court. In the paragraphs that follow I summarise the essential facts and some of the main features of the evidence heard at that inquest.

[186]Events prior to Stephen’s death. Stephen arrived at Bullingdon on 13th August 2004. He had been in prison previously, most recently in Bullingdon for a few weeks from about 11th June 2004.

[187]When Stephen arrived at the prison reception on 13th August, Nurse Taylor assessed him as part of the standard “First Reception Health Screen”. Nurse Taylor noted that since last leaving custody, Stephen had spent some time at the Churchill hospital, but she did not obtain any records showing why he had been there. In fact, up until his arrival at Bullingdon, Stephen had been taking significant daily quantities of crack cocaine, heroin and methadone. On arrival at Bullingdon, Stephen tested positive for cocaine and morphine, the latter being the result of his heroin and/or methadone use.

[188]Paragraph 2.2 of PSO 2700 requires that an assessment of the risk of suicide or self-harm should be made by a member of the Health Care Team on the day of reception as part of the health screening procedure for all receptions. Nurse Taylor accepted that she did not make any written record of any such assessment. Furthermore, Nurse Taylor did not complete the “First Reception Health Screen” form (the “FRHS form”). There are a number of specific questions in the FRHS form, relating to an inmate’s risk of suicide, that require answers. These questions include whether the inmate has suffered from psychiatric illness, whether he has ever deliberately self-harmed or attempted suicide, whether he had been prescribed psychiatric medicine, whether he felt like hurting himself and whether he appeared excessively withdrawn, depressed or anxious.

[189]In evidence, Nurse Taylor claimed to have considered these or similar issues in relation to Stephen, but accepted that she had not made any written record of an assessment of self-harm in Stephen’s case. Nurse Taylor stated that she had made a note on Stephen’s medical record that she had assessed him, but the note made no mention of the state of Stephen’s mental health. She took no steps to open the form F2052SH procedure, which is designed to protect those at risk of suicide in prison, nor did she transfer Stephen to healthcare.

[190]On 14th August 2004, Stephen was placed on a twelve-day detoxification programme using Subutex medication, a potent and powerful drug regime. On 25th August 2004, he was taken to Oxford police station to be questioned further with regard to his offending conduct. There he was told that 73 further offences would be taken into consideration. Whilst he was at the police station, Stephen missed his last dose of Subutex and was given diazepam in its place.

[191]On 25th August 2004, whilst he was still at Oxford police station, Dr Critchlow, a consultant psychiatrist, saw Stephen. Dr Critchlow stated that Stephen told her that he had been taking £300 worth of crack cocaine and heroin daily until his most recent detention in custody and that he had taken two intentional overdoses in past years.

[192]The Claimant, Stephen’s mother, also saw him at the police station on 26th August 2004. She thought that he looked very, very tired and that he seemed very, very quiet. He told her that he had had no sleep for days and complained that he had missed his last detoxification medication. Mrs Woods said that Stephen was not his normal outgoing self and that she thought that this was because he was in the process of being detoxified. She stated that his drug habit had become fairly chaotic.

[193]Stephen returned to Bullingdon from Oxford police station on 26th August 2004 and was placed in a double cell. On 27th August he refused to return to that cell because he was “so badly withdrawing from drugs” that he would cause problems to his cellmate. As a result, Stephen was placed in segregation.

[194]On 27th August, after being placed in segregation, Stephen threw food and other items out of his window, some of which he had set fire to. He was then moved to another cell in the segregation unit. That evening, he flooded his cell and banged very violently on his cell door for a number of sustained periods of time.

[195]The events of 28th August 2004. On 28th August 2004, Stephen was taken to an adjudication before the Governor. However, before this was done, the necessary “safety algorithm” was completed to confirm that Stephen was fit for an award of cellular confinement. The algorithm was completed and signed by Nurse Alichukwa, a psychiatric nurse. The algorithm required medical assessment of conditions such as whether the inmate showed signs of being psychotic. The form itself noted that the algorithm had to be completed by a doctor before any award of cellular confinement. Nurse Alichukwa was with a locum doctor at the time she completed the algorithm form, but the doctor played little part in the assessment and, since he was a locum and not the prison doctor, could not have been expected to be familiar with cellular confinement or the effects that this might have on an inmate.

[196]At the Governor’s adjudication on 28th August 2004, Stephen faced two charges: one in respect of his refusal to return to his double cell and the other for flooding his segregation cell. In the event, he was sentenced to 12 days’ cellular confinement, together with the loss of all privileges except tobacco. When he received this sentence, Stephen was clearly upset and said to the Governor: “I can’t do that”.

[197]At the inquest, there was evidence that the lack of staff on the afternoon of Stephen’s death meant that there was no one available to talk to him and thus provide this well-recognised form of beneficial support that is particularly effective for those in segregation, where a prisoner is isolated. Furthermore, it appears that no measures were taken of a type ordinarily put in place to help safeguard the mental health of an inmate in segregation, such as giving access to hobbies and education or providing distractions such as books and television.

[198]Stephen was taken back to his cell between 2.40pm and 2.45pm. Once Stephen had been returned to his cell, PO Thompson lit a cigarette for him before his cell door was locked. Stephen was clearly agitated and engaged in kicking, banging, shouting and screaming for a period of about 20 to 30 minutes.

[199]About 20 to 30 minutes after Stephen had been returned to his cell, PO Thompson responded to Stephen’s emergency cell alarm, lit another cigarette for him and passed it under the cell door. At some stage, the papers relating to the adjudication were pushed out of Stephen’s cell. PO Thompson thought that this happened before he provided Stephen with the second cigarette, but he was not entirely sure. The available evidence therefore suggested that the latest time that there was any sign that Stephen was still alive was at about 3.15pm.

[200]The prison officers did not check Stephen again until 5pm on the 28th August 2004, when SPO Croft visited Stephen’s cell and discovered him hanging dead. The evidence therefore showed that a period of at least 1 hour and 45 minutes had elapsed during which no checks had been made on Stephen. It appears that, at the time of Stephen’s death, the prison officers at Bullingdon did not carry out and were not aware of the requirement for hourly checks on inmates serving a punishment of cellular confinement, as specified in paragraph 7.24 of PSO 1700 and repeated in PSO 2000.

[201]The ligature that Stephen used was a length of material torn from the edge of his bed sheet, knotted in several places. It would have taken an appreciable period of time to make. Stephen would probably have had to stand on the table in his cell in order to attach the ligature to the light fitting. If an officer had seen Stephen making any of these preparations, he or she would have taken immediate steps to protect him.

[202]Although Stephen did not expressly say to any of those responsible for his care that he intended to self-harm, there were obvious indications that he was at increased risk of suicide: see paragraph 32 of Mr Southey’s written skeleton argument, to which I refer but do not repeat.

[203]Furthermore, it appears that there were a number of inadequacies in the training of prison staff, as demonstrated by the following deficiencies.(i) As indicated above, several officers involved in Stephen’s care at the relevant time were unaware of the mandatory requirement for hourly checks on those serving cellular confinement, including PO Carroll, Governor Walls, PO Thompson and every officer in the segregation unit.

(ii) PO Carroll was not aware of the relationship between detoxification, missed doses of medication, mood swings and suicide, as described in paragraph 2.2 of PSO 2700.

(iii) PO McIntyre, one of the officers who found Stephen, had not received any training in first aid.

[204]The Summing-Up and Verdict. It was Mr Southey’s submission that there was evidence at the inquest upon which the jury, properly directed, could have come to the following conclusions (see paragraph 22 above, but repeated for convenience).(i) Stephen was not adequately observed, after having received an award of cellular confinement, from about 3.15pm until he was found dead at 5pm.

(ii) There was not an appropriate assessment of Stephen’s risk of self-harm when he first arrived at the prison.

(iii) A number of the officers responsible for Stephen’s care had not been adequately trained, in particular regarding the requirement for hourly observations for those in similar circumstances to Stephen on the afternoon of his death.

(iv) Appropriate measures were not taken to safeguard Stephen’s mental health while he was in segregation, such as giving him books or television.

(v) On the afternoon of 28th August 2004 the staffing levels at HMP Bullingdon were inadequate

[205]On the 26th June 2007, at the beginning of the inquest, the Coroner addressed the jury and said this (inter alia):

“It is not our task, or indeed, we are not allowed to inquire into matters of blame or fault. It is a court of inquiry and, at the end of the day, you will be asked to express your views as to certain facts. … … There is one other implication from the fact that the article 2 was engaged; the word “how” can be more widely interpreted as being the general circumstances, rather than the far narrower definition that might apply in a case which was not protected by the Human Rights legislation. This gives you a freer hand when deciding what facts you need to adduce facts on. Your findings when you make them must be questions of fact. You must not be judgmental in your conclusions. This is not a road traffic case, but if it were, it would, for instance, be legitimate for you to say the car was travelling at about 80 miles an hour. What you must not do is to say it was travelling too fast, because the second version of that, although you may think it means very much the same thing, is judgmental. Whereas the fact that it was travelling at 80 miles an hour is simply your view as to a particular fact, the speed of the motor car. You are not making any judgment as to whether the driver was driving too fast or not. That is a fairly simple explanation of the non-judgmental aspect of your verdict. I am sure I shall be returning to that in due course.”

[206]At the completion of the evidence, the Coroner duly summed up to the jury on 28th June 2007. His directions to the jury included the following (quoted in part in paragraph 23 above, but repeated for convenience):

“The effect of these rules [rule 36(2) and rule 42 of the 1984 Rules] is that you must not trespass on the territory of the civil or the criminal courts but it does not mean that you have to deliver a total bland conclusion. Provided you stick to the facts that you believe to be causative of death and you do not over-embellish them with words such as wrongly or negligent or anything like that, you are most unlikely to be criticised. … … If you were to return a verdict that he took his life there would be no objection to your stating that he took his life and adding something to that. We do not normally use phrases such as “the balance of his mind was disturbed” nowadays but it would be quite possible, if you felt the facts justified it, to say that he took his own life because the risk of doing so was not recognised and appropriate precautions taken to prevent it. But you have to put that forward as a statement of fact that it was because those precautions were not taken that he took his own life and there has to be a causative link between the two. This is, you will probably say, a judgmental conclusion and of course it is, but it incorporates your findings of fact and does not [infringe] the two rules that I referred to earlier. But anything you put there must be questions of fact which you feel have been established and they must be facts that you feel to be part of the chain of causation that led to the death. … You will need to consider his motivation for this refusal and indeed the frequent references to episodes of abuse and riotous behaviour and that sort of thing … That is something which you will find necessary to consider and you will need to consider whether your conclusions are relevant in terms of the causation of his death. … At its most simple you could say that at some time between say 3.05pm and about 5.00pm on 28 August in his cell on the SSCU Unit at HM Prison Bullingdon he hanged himself. You may, however, feel that there were causative factors which you need to refer to beyond these facts. These must not be mere speculation. In particular, you must not speculate as to what might have happened if certain other actions had been taken but you can say that those actions were not taken if you consider them causative to the cause of death. It would be quite legitimate for you to say that the staff did not know that hourly observations were required but you will have to consider whether that would actually have made any difference anyway given that it is simple enough to take one’s own life in a period considerably shorter than that. You may want to say that forms were or were not completed fully or indeed at all but again you have to consider that these are relevant to the cause of death. You might, in a similar fashion, like to comment on the fact that there was no visit to the cell by prison officers or any call to his lawyer made, but then again, this must not be a matter of speculation. It must be indicated that you feel it causative in terms of the death.”

[207]The jury retired at 10.45am and returned at 1.25pm with their verdict. The jury’s conclusion as to the time, place and circumstances of the death was stated in paragraph 3 of the Inquisition in the following terms:

“Some time between 3.15pm and 5pm on 28 August 2004, at 1 Patrick Haugh Road, Bicester, Stephen Woods hanged himself.”

The jury’s conclusion in paragraph 4 of the Inquisition was simply that Stephen had taken his own life and they went on to state that they were “unable to produce an objective narrative” verdict. JR3: The Parties’ Submissions

[208]Mr Southey submitted that the Coroner’s directions to the jury were wrong in law and in breach of Article 2 in two important respects, namely(i) in directing them that they “must not be judgmental” in their conclusions (“the non-judgmental direction”) and

(ii) in directing them that they could only record factual conclusions that were “causative in terms of the death” (“the causative factor direction”).

[209]As to the non-judgmental direction, Mr Southey referred to his earlier submissions of law on the same point in JR2 (see paragraphs 158 to 161 above). He then submitted that the Coroner’s direction, given at the beginning of the inquest, that the jury’s conclusions must not be judgmental, was manifestly a misdirection that was expressed in clear and unequivocal terms and illustrated by a fully explained example. It was Mr Southey’s submission that the Coroner’s later directions, given during his summing-up, failed to remedy this significant error because he did not correct his earlier misdirection nor did he explain to the jury clearly that they could return a narrative verdict that recorded judgmental factual conclusions. Mr Southey submitted that, in those circumstances, it is likely that the jury would still have thought that they could not record any judgmental conclusion apart from the specific example given by the Coroner (see the second paragraph of the passage from his summing-up quoted in paragraph 206 above).

[210]For their part, Mr Coppel (on behalf of the Coroner) and Ms Richards (on behalf of the Secretary of State) both stressed the importance of considering the entirety of the Coroner’s directions to the jury. They submitted that, when considered as a whole, it is clear that the directions given by the Coroner in the course of his summing-up fully complied with the guidance provided by Lord Bingham in Middleton and that the Coroner’s intention, when giving the example in the course of his observations made at the beginning of the inquest, was to illustrate the type of judgmental conclusion that was impermissible for reasons that he explained more fully later in the course of his summing-up. They submitted that, in the light of the Coroner’s directions in his summing-up, this would have been fully understood by the jury (whatever they may have initially thought the Coroner’s opening observations actually meant), who would also by then have completely understood (for the same reason) that they were entitled to record factual conclusions of a judgmental nature as part of a narrative verdict.

[211]I agree with that submission. In my view, the Coroner’s directions to the jury in this case can be summarised as follows:(i) in recording their verdict, the jury should not trespass on the territory of the civil or criminal courts;

(ii) this did not mean that the jury had to deliver a totally bland conclusion;

(iii) the jury were entitled to record their findings or conclusions about factual matters or factors, provided they believed them to have been causative of the death;

(iv) the jury should not over-embellish such factual findings or conclusions with words such as wrongly or negligent or anything like that; and

(v) by way of example, if the jury felt that the facts justified it, they could conclude that “he took his own life because the risk of his so doing was not recognised and appropriate precautions taken to prevent it.”

[212]In my view, it is clear that the Coroner’s directions in his summing-up followed the guidance in Middleton very closely (even using the same specimen narrative verdict). I am satisfied that, as a result of those directions, the jury were left in no doubt that they were entitled to record relevant factual conclusions that were judgmental in nature, provided they were satisfied that they were in respect of factors that were causative of the death and did not infringe rules 36 and 42 of the 1984 Rules. As it seems to me, to the extent that the jury had the Coroner’s earlier observations and example in mind, they would by then have entirely understood that the Coroner was there referring to an example of a judgmental conclusion that was impermissible because it infringed rules 36 and 42. I therefore reject Mr Southey’s submissions to the contrary effect. For those reasons, I have come to the conclusion that there is nothing in the Claimant’s criticisms of Coroner’s “non-judgmental direction” and that this first ground of challenge therefore fails.

[213]So far as concerns the Coroner’s causative factor direction, Mr Southey submitted that the Coroner was wrong in law because, in directing the jury as he did, the Coroner prevented the jury from expressing their conclusions on important issues directly relating to the circumstances of death that:(i) might have led to Stephen’s death, i.e. that the act or omission complained of increased the risk of the death to a material extent; and/or

(ii) did not cause or increase the likelihood of death, but which increase the risk of like deaths occurring in the future. As I have already indicated, I have taken account of Mr Southey’s submissions in support of this ground of challenge when setting out my conclusions with regard to the relevant legal principles and when dealing with the parties’ submissions in JR1, which was the lead case.

[214]Ms Richards, supported by Mr Coppel, submitted that the Coroner’s directions in JR3 were both lawfully and sensibly directed towards the identification of any failings of causative relevance and that the inquest, through its investigations and verdict met the requirements of the Article 2 investigative obligations in this case. As in the case of Mr Southey, I have taken account of Ms Richards’ submissions when setting out my conclusions on the relevant legal principles and when dealing with the parties’ submissions in JR1. For the reasons already given, therefore, I agree with Ms Richards’ submissions. JR3: Conclusion

[215]For all the reasons that I have developed and explained in relation to JR1, I agree with Ms Richards that the Coroner’s causative factor direction in JR3 was both lawful and sensible and cannot be faulted. I reject Mr Southey’s submissions to the contrary effect. For those reasons, this ground of challenge also fails. Accordingly, for those reasons, I have come to the conclusion that this claim must be and is hereby dismissed. Overall Conclusion

[216]For the reasons appearing above, the claims in JR1 and JR3 are dismissed. However, as I have already stated, the claim in JR2 succeeds. In that case, therefore, the Inquisition will be quashed and a new inquest ordered. I will hear further submissions from Counsel with regard to the form of the necessary orders and with regard to any further related applications.

Lewis, R (on the application of) v HM Coroner for Mid & North Division of the County of Shropshire & Anor [2009] EWHC 661 (Admin)

Cited in 3 later judgments