P, R (on the application of) v HM Coroner for the District of Avon [2009] EWHC 820 (Admin)

[2009] EWHC 820 (Admin)Case No CO/7865/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 5th March 2009
Strand
London WC2
B E F O R E:
MR JUSTICE BEATSON
Between
THE QUEEN ON THE APPLICATION OF PClaimant-v-
Between
HER MAJESTY'S CORONER FOR THE DISTRICT OF AVONDefendant
(Computer-Aided Transcript of the Palantype Notes ofWordwave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Miss F Paterson (instructed by Messrs Birnberg Peirce & Partners, London NW1 7HJ) appeared for ClaimantMr Hugh Mercer QC (instructed by the Treasury Solicitor, London WC2B 4TS) appeared for Defendant
J U D G M E N T

Introduction

[1]Article 2 of the European Convention on Human Rights has been held to impose an obligation on states to initiate an effective public investigation into any death occurring in circumstances in which it appears that agents of the state are or may in some way be implicated. A significant part the law on this obligation in this country concerns coroners' inquests. Before the decision of the House of Lords in R (Middleton) v West Somerset Coroner [2004] 2 AC 182, the requirement in section 11(5) of the Coroners Act 1988 that an inquest be directed to ascertain how a deceased came by his or her death was interpreted narrowly to mean "by what means". The appropriate verdict was a traditional short form verdict of, for example, unlawful or lawful death, accident or suicide. Middleton's case decided that, in the light of section 3 of the Human Rights Act 1998, a broader interpretation was required of the word "how" so that it connotes "by what means and in what circumstances", and that in this way we would satisfy our obligations under Article 2. 1. The issue before me is a narrow one. It is whether, and if so when, a coroner who leaves both short form and narrative verdicts to an inquest jury is required to direct them that, if they return a short form verdict, they should append to it a short narrative giving their conclusion on the central factual issues before them. The claimant submits that this is necessary. The defendant submits that it suffices that the jury is enabled to express its conclusion on the central issues in the case through a narrative verdict. The facts and the submissions 1. The claimant's mother died on 5th January 2007 while in custody on remand at HMP Eastwood Park. She had a history of drug abuse and self-harm. Two of her five children had been adopted. Two were in care with adoption proceedings pending and one was apparently with the deceased mother. 1. On 29th November 2006 the deceased was charged with burglary and breach of a community order and taken into custody. An application for bail, which her solicitor had advised her was unrealistic, was refused on 4th January 2007. On 5th January, very sadly, she was found hanging from a bed sheet attached to the wardrobe in her cell. Attempts to resuscitate her were unsuccessful. 1. The inquest was held between 19th and 23rd May before Deputy Coroner Voisin and a jury. In this application for judicial review the claimant, acting through her litigation friend, her grandfather, challenges the direction given by the coroner to the jury at the conclusion of the evidence as to the verdicts available to them. 1. The claimant seeks orders quashing the inquisition and requiring the matter to be heard before another coroner. Proceedings were launched on 19th August and permission was given by King J on 17th October 2008. 1. The coroner left three verdicts to the jury: suicide, accident or, if they did "not consider that either of those verdicts expressed [their] factual conclusions", a narrative verdict; that is, a short statement summarising their factual conclusions as to the circumstances in which the deceased came by her death. The coroner did not refer to the short form of narrative in the context of the verdicts of suicide or accident. The inquisition states that the conclusion of the jury as to the death was that the deceased died as the result of an accident. In part 5 of the inquisition, under the heading "Details of how accident happened", it is stated, "At 15.10 hrs on 5th January 2007 the deceased was certified dead at Eastwood Park, Falfield, South Gloucestershire". 1. In part 3 of the inquisition, under the heading "Time, place and circumstances at or in which injury was sustained", it is stated:
"15.10 hrs at Eastwood Park Prison, Glos. cell E-114." 1. Miss Paterson appeared on behalf of the family at the inquest and on behalf of the Claimant before me. She submitted that in the circumstances of this case the shortex parte Jamieson [1995] QB 1, pre-Middleton, form of verdict of suicide or death by accident does not satisfy Article 2 of the Convention and the requirements set out in Middleton's case because it does not itself amount to a conclusion on the factual issues before the jury. She submitted that it was incumbent on the coroner to direct the jury that if they returned a verdict of suicide or death by accident, they could append a short form of narrative to their verdict, giving their conclusion on the central factual issues before them. Because this was not done, the coroner's direction erroneously suggested that a verdict of suicide or death by accident would in itself amount to a conclusion on those factual issues. Paragraph 35 of the claimant's grounds states that the case of Middleton holds that: "
Where an Inquest is held into a death in custody, in order to meet the Article 2 obligations, the Coroner must secure the jury's conclusions on how and by what means the deceased came by his death. Those questions cannot be answered merely by returning a verdict addressing the immediate physical cause of the death. Details of matters relevant to the death should be elicited from the jury." (emphasis added) 1. At the inquest, before the coroner summed up, Miss Paterson had submitted that only a narrative verdict was open to the jury because of the central factual issues at the inquest. She submitted that the central factual issues were: (1) whether the deceased should have been recognised as a suicide risk, and (2) whether appropriate precautions should have been taken in order to prevent her suicide or her death. If unsuccessful in that primary submission, Miss Paterson argued that:
"Only two short form verdicts should be left open to the jury as an alternative to a narrative and they are suicide or accident and misadventure." 1. At that time she submitted the jury should be "permitted" to express their conclusions on those issues, whether through a narrative or through a short narrative attached to a short form verdict. Before me she submitted that although there was a dispute at the inquest as to whether the deceased wished to end her own life or only wished to expose herself to a risk of harm as a cry for help, her assumption of that risk and whether those in charge of her care could have identified and acted upon it was also a central factual issue at the inquest. That second central factual issue, she submitted, remained unanswered in the inquisition. 1. Paragraphs 15 to 19 of the grounds state that, when directing the jury in relation to suicide and accidental death, no mention is made of the short form of narrative which "should be attached to the verdict addressing the jury's conclusions on the central issues leading to the death."
It is only in relation to the final verdict, a narrative verdict, that the coroner stated that the jury could express their factual conclusions in a short statement. Miss Paterson explained that because the jury was directed that a narrative verdict was possible "if you do not consider that any of the above verdicts [suicide or death by accident] express your factual conclusions", the jury may not have appreciated that they could use the term accident or suicide at the start of their narrative. 1. It was submitted on behalf of the defendant by Mr Mercer QC that the Middleton case required the coroner to give the jury an opportunity to provide a narrative verdict expressing their conclusions through narrative or, alternatively, through answers to questions on the central facts and in this case she had done so. Mr Mercer submitted that the coroner was not obliged to leave only a narrative option to the jury, and the Middleton case shows (see paragraph 36 of the opinion of the Appellate Committee delivered by Lord Bingham) that the choice of verdict "must be that of the coroner and his decision should not be disturbed by the courts unless strong grounds are shown." 1. In that case Lord Bingham also said that it must be for the coroner in the exercise of his or her discretion "to decide how best, in the particular case, to elicit the jury's conclusion on the central issue or issues". He gave a number of examples of how this might be done. 1. In this case the coroner invited a narrative verdict if the jury considered the verdicts of suicide and accident to be insufficient to express their factual conclusions. She listed 12 possible acts or omissions as to those circumstances for the jury to consider. It had not been argued by any party that those acts and omissions or the evidence of them was strong enough to support a verdict of neglect. 1. Mr Mercer submitted that the choice of accident as opposed to suicide or narrative verdict means that the jury considered: (1) there was insufficient evidence of the voluntary doing of an act to end the deceased's life; (2) that the accident verdict was sufficient to express their factual conclusions; and (3) that there was insufficient evidence of the 12 acts or omissions having contributed to the death in more than a minimal or trivial way. 1. No complaint is made about the conduct of the inquest itself or, save in respect of the absence of a direction to append a short narrative about the core facts to the short form verdicts, of the summing-up. Thirty witnesses were called, including Sarah Hughes, an officer in the Prisons and Probation Ombudsman's Office, who carried out an investigation into the deceased's death, reported and made recommendations. Although this judicial review is not concerned with the facts, given the absence of criticism of the summing-up save in that one limited respect, it is useful to identify from the summing-up how the jury was reminded about the evidence. The following paragraphs are taken from the summing-up. 1. A pre-sentence report dated 18th September 2006 stated that the current risk that the deceased would self-harm was heightened by a recent attempt. After her arrest on 29th November and remand in custody on 30 November, the Probation Service notified the prison that the deceased was recorded by them as a self-harmer. Her reception health assessment recorded that she had tried to self-harm a couple of months previously and as having been homeless in the previous year. The health care assistant who conducted the assessment did not open the relevant documentation, an "Assessment, Care in Custody and Teamwork" form, a form which could be opened by any member of staff who was concerned that an inmate might be at risk of self-harm or suicide. My description of the form is not taken from the summing-up, but I add it to help the intelligibility of this judgment. 1. The assessment did not refer the deceased to the Primary Mental Health Care Team, as should have happened because she said she had been homeless. She was placed on the detoxification wing. The officer who completed the cell sharing risk assessment recorded that she did not regard the deceased as suicidal, but did not record what information had been received by the prison. 1. On 18th December the deceased was again remanded and was also moved from the detoxification wing and placed in a cell on her own. On 20th December she told Nicola Penney, a member of the CARAT counselling team, that "if I get three years I'll probably kill myself", but Miss Penney described this as a flippant comment. On 31st December she wrote to her partner telling him she would try to harm herself. Dr Illingworth, who saw her on 3rd January, wrote a note confirming her low mood, crying, poor appetite and concentration, and diagnosed depression and prescribed antidepressants. 1. The deceased's solicitor said that when she was taken to the Magistrates' Court for her unsuccessful bail application on 4th January, she was not hysterical in his presence and did not give any indication of suicidal intent. She was seen staring into space on the morning of 5th January by Joanne Robertson, but Rachel Truman, who saw her at about noon, did not notice anything different in her and Officer Shortney, who saw her about lunchtime, noticed nothing unusual about her. She was locked in her cell alone at approximately 12.23. The cell door was unlocked by Officer Blair at 14.00 hours, and at 14.43 she was found hanging in her cell by Joanne Robertson. That forty three minute gap was the subject of one of the criticisms of what had happened and one of the recommendations made by the Ombudsman. Life was pronounced extinct at 15.10 hours. The Prison Ombudsman's Report 1. I have referred to the Prisons and Probation Ombudsman's report. The summing-up stated that the report made recommendations as to generating appointments and proper completion of cell sharing documents. It is convenient at this point to interpose those recommendations, because they are relevant to one of the matters relied on by Mr Mercer and resisted by Miss Paterson. There were five recommendations further of which were accepted entirely by the prison service. These were: (1) that there should be an improvement in the staff assessing mental health after detoxification in being clear about their responsibilities; (2) that staff should get a verbal or visual response during all cell checks; (3) that cell sharing risk assessment forms should be properly completed, indicating what document the assessor has seen; and (4) that all contact with prisoners should be recorded in their files. 1. The fifth recommendation was that wardrobes in cells should be assessed to remove potential ligature points. This recommendation was partially accepted. The Prison Service, however, noted that because of the nature of cells there were numerous potential ligature points apart from wardrobes. The Summing-up 1. I return to the summing-up. It refers to Sarah Hughes' response in evidence when asked why the deceased's vulnerability had been missed. Ms Hughes said that the deceased was never seen as presenting as at risk in this way. There was only so far one could go by referring to documentation and asking somebody if they are all right. If they are presenting as being all right, you cannot expect people to mind-read. 1. The summing-up also refers to a clinical review for the Ombudsman's report carried out by a Dr Goyder. He found no areas of concern and no significant issues during the deceased's care by the health care team in the prison. 1. The coroner then took the jury through Rules 36 and 42 of the Coroners Rules 1984, SI No 552. Rule 36 concerns matters to be ascertained at the inquest, namely who the deceased was; how, when and where the deceased came by her death; and the particulars for the time being required by the Registration Acts. The coroner read Rule 36(2):
"Neither the coroner nor the jury shall express an opinion on any other matters." 1. She paraphrased Rule 42, which relates to the verdict. She stated that: "
No verdict shall be framed in such a way as to appear to determine any question of criminal liability on the part of a named person or civil liability." 1. She directed the jury to complete the inquisition, setting out the facts as they found them. She said that with regard to item 3 on the form, the time, place and circumstances at or in which the injury was sustained, the jury "will need to discuss between yourselves the evidence which you've heard and agree the factual circumstances which give rise to the death. When describing the circumstances you should be brief, neutral and factual, expressing no judgment or opinion." 1. She then said that the jury should set out the facts as they found them and as they considered them relevant, upon which they based their conclusion. only after they had agreed the facts should they answer question 4, their conclusion as to the death. 1. Then the coroner came to the jury's conclusions. The first conclusion for them to consider, she said, was suicide. She said this may never be presumed, but must always be based on evidence that the deceased intended to take his or her own life. A verdict of suicide should only be returned when other possible explanations have been totally ruled out. The coroner directed the jury they could only return a verdict of suicide if they were sure the deceased was to take her own life. She also directed them that if there was evidence that when the deceased acted she was either suffering from a mental disease or acting irrationally, it was open to them to add words to that effect. 1. The second possible conclusion was accident. The coroner said that an accident arises if the evidence shows that it is probable that the cause of death arose directly from some procedure, process or event over which there was no human control or as the consequence of an unintended act or omission, or the unintended consequence of a deliberate act or omission. She gave as an example the position if a deceased was hoping to be found and the act was a sort of "cry for help". 1. The coroner said of the third conclusion, a verdict of narrative, that (in a passage from which I have already quoted):
"If you do not consider that any of the above verdicts express your factual conclusions then you may return a narrative verdict, which is a short statement summarising your factual conclusions as to the circumstances in which [the deceased] came by her death. In this particular case, you can interpret the term how to include by what means, and by what means and in what circumstances. To return a narrative verdict, the act or omission must have contributed to the death in a more than minimal or trivial way. As with the other verdicts, the same rules apply, and the phrases you must not use are things like neglect or carelessness, as an example really." 1. The coroner also said that the jury might consider some of the following issues: the situation regarding Caroline's children and the family court proceedings for adoption of two of them; the ongoing criminal case against her; her relationship with her partner; the information from external agents being passed to HMP Eastwood Park; her history of drug misuse and her detoxification at Eastwood Park; whether the staff had obtained sufficient information about any factors which could render her vulnerable to self-harm or to suicide; how she appeared to those she had contact with at Eastwood Park; was it appropriate to put her in a cell on her own; the impact of the unsuccessful bail application on her; how she appeared to her fellow inmates and prison staff on the morning of 5th January; the manner in which cells were unlocked; whether there was any sufficient warning of her intention to those in authority. 1. At the end of the summing-up, after the jury withdrew, Miss Paterson asked that they be reminded that if they decided to return a verdict of suicide or accident, that "does not prohibit them from attaching a short narrative to the short form verdict" and "that they are allowed to do that." 1. Counsel for the NHS Trust did not disagree with that. The coroner responded that "the time, place and circumstances at and in which the injury was sustained" in her view often incorporated what Miss Paterson had asked for. Counsel for the Prison Service considered that if the jury did not feel that suicide or accident was appropriate, they would go to narrative and that would cover the situation. He did not consider that the jury should be encouraged to return something which was a hybrid between a short form and a narrative, and the danger of riders was referred to. 1. Miss Paterson referred to Lord Bingham's acknowledgement in Middleton's case that short verdicts in some cases in a traditional form will enable the jury to express their conclusions on the central issues canvassed. She said that the example the coroner gave was of circumstances that pertained to the death itself. Her concern was that if the jury wished to go beyond that fact, the fact she was actually hanging and say something about the events leading up to it, they should realise they could do so. 1. The coroner declined to give a further direction. She considered that if the jury was minded to expand beyond the verdict of suicide, having heard her direction, they would return a narrative verdict which gave them the option of summarising their conclusions on the central factual issues. Discussion 1. It is clear, as Miss Paterson accepted, that traditional short form verdicts were not abolished by the decision in Middleton's case (see paragraph 31 of the judgment). But Miss Paterson submits that in the case of deaths in custody, the circumstances in which such a verdict can be used are limited. In this case a short form verdict did not suffice because, in her submission, neither accident nor suicide on its own allows the issue of the events leading up to the death to be addressed. That is how, in Miss Paterson's words, a vulnerable young woman was put in a cell on her own for sufficient time to give her an opportunity to hang herself. 1. Miss Paterson argued that the jury's verdict did not express their conclusion on this crucial issue. She relied on the statement of Lord Bingham in the Middleton case at paragraph 16: "
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." 1. In the Middleton case itself, counsel for Mrs Middleton had argued (See Paragraph 13) that for an investigation to suffice, it must culminate in a finding which expresses the fact-finding body's judgment on the cardinal issues concerning the death . 1. Miss Paterson also relied on Lord Bingham's statement that, in the case of Keenan v United Kingdom (2001) 33 EHRR 913, the verdict of death by misadventure, and in the cases of Edwards v United Kingdom (2002) 35 EHRR 487 and R (Amin) v Secretary of State for the Home Department [2003] 3 WLR 1169, verdicts of death by unlawful killing would not have enabled the jury to express any conclusion on what would undoubtedly have been the major issue at any inquest, namely the events leading up to the death, and in the latter two cases the procedures that led to the deceased and his killer sharing a cell (see paragraph 31 of Middleton’s case). 1. I observe that the procedures in those cases all pre-dated Middleton's case and used the narrower meaning of "how". Secondly, in Edwards’ Case there was no investigation, the police investigation was held not to be effective, and there had been a guilty plea, so there had not been an investigation in the course of a contested trial. 1. Moreover, in Amin's case there had been no inquest. The inquest was adjourned and criminal proceedings started. There was no other adequate investigation, and the court had in mind that the next of kin could not participate in the trial which did take place. 1. There are references in Lord Bingham's speech in Middleton's case to the jury being "permitted" and "enabled" to express their conclusion on the central facts explored before them: see paragraphs 45 and 31. In paragraph 16, the passage which I have quoted, which refers to an explicit statement, however brief, is preceded by Lord Bingham's reference to the state's "procedural" obligation to investigation being unlikely to be met if the fact-finding body "cannot" express its conclusion on that central issue. 1. Miss Paterson recognised the tension in Lord Bingham's speech between these various terms, but submitted that the tension can and should be resolved by reference to one of the purposes of the procedural obligation in Article 2, a purpose recognised by Lord Bingham; that is, to enable lessons to be learned from events: see [5] and [18] and his reference to Amin’s case ([2004] 1 AC 653 at [31]). She also relied on the statement in paragraph 18 that a verdict of a jury, other than an open verdict, which does not express the jury's view on a major issue canvassed in the evidence cannot satisfy or meet the expectations of the deceased's family or next of kin. She submitted that this is a pointer to the more extensive requirement. 1. Miss Paterson also relied on the reference from Amin's case (paragraph 31) to "an uninformative jury verdict", and on the context of Middleton’s case. At that time, as I have stated, the traditional short form verdicts reflected the decision in R v HM Coroner for North Humberside and Scunthorpe, ex parte Jamieson [1995] 1 QB 1 and the narrower meaning of the word "how". This, she said, explained the references to the jury not being "permitted" to explain their conclusion. 1. Miss Paterson accepted (see paragraph 10 of her skeleton argument) that it is possible to infer from the jury's verdict that there was insufficient evidence of the voluntary doing of an act to end the deceased's life. She, however, submitted that, for two reasons, it was not possible to infer that the accident verdict sufficed to express the jury's factual conclusions. The first is the requirement in Middleton's case of an explicit statement of the conclusions. The second is that the coroner's summing-up prevented the coroner from eliciting any conclusions from the jury. 1. To assess the scope of the decision in Middleton's case it is important to remember that it was one of the early examples of the court revisiting a settled interpretation given to an English statute, in order to satisfy the interpretative obligation in section 3 of the Human Rights Act, to make English law conform, by not being incompatible, with the Convention rights specified in the Schedule to the Human Rights Act. Accordingly, it is not surprising that Lord Bingham's judgment considers the Strasbourg jurisprudence, and at this stage it is convenient for me to do so. 1. In McCann v United Kingdom (1996) 21 EHRR 97, the Strasbourg court stated that what is required for this limb of Article 2 (see paragraph 161 of the judgment) is "some form of effective official investigation." It also stated that the form of that investigation is not for the court to decide. The issue (see paragraph 164) is whether the investigation is thorough, impartial and careful. It is also clear from the Strasbourg jurisprudence (see, for example, Edwards v United Kingdom (2002) 35 EHRR 487, at paragraph 71, and Jordan v United Kingdom (2001) 37 EHRR 52, at paragraph 107) that the obligation — and I invert the way the court put it — is an obligation of means and not of result. 1. Lord Bingham, in Middleton's case, refers to the obligation as a procedural obligation. Jordan's case in fact concerned Northern Ireland, where the verdicts available and the legal regime differed from that in England and was narrower. That decision was cited by Lord Bingham in paragraph 10 of his speech. Paragraph 107 of the judgment of the Strasbourg court in Jordan's case states that:
"The investigation must also be effective in the sense that it is capable of leading to a determination of [in that case] whether the force used in such cases was or was not justified in the circumstances ..." 1. The court then said: "
This is not an obligation of result, but of means." 1. Lord Bingham, at paragraph 31 of his speech in Middleton's case, states that in some cases "short verdicts in the traditional form will enable the jury to express their conclusion on the central issue canvassed at the inquest". He states that it did so in McCann's case, but in other cases it is plain that a short form verdict will not. Citing Keenan, Edwards and Amin (to which I have already referred) he said that short form verdicts "would not have enabled the jury to express any conclusion" on the matters central in those cases. 1. In paragraph 14 of the speech, in explaining why the McCann inquest satisfied the obligation of investigation in Article 2, his Lordship said:
"The jury could thus indicate, by returning an open verdict, their inability to decide or, by choosing one or other of the remaining verdicts, express their judgment on the central, and very important, issue." 1. In the present case the coroner left a number of verdicts, including a narrative verdict. She clearly directed the jury on, for example, the standard of proof. It appears from the summing-up that if a simple verdict of accident or suicide did not express the jury's factual conclusions, they were told they should return a narrative verdict. It is significant that the coroner used the word "express"
. A narrative verdict was left. 1. The reference in Middleton's case at paragraph 16 to an explicit statement must be seen in its context. That was the inability on the part of the jury in that case to make findings on those essential issues, and the knowledge from the note they had passed that they wished to say more than the short form verdict. 1. The remaining references in the speech in Middleton's case are to "permitting" and "enabling" a jury to express its conclusion. The purpose of enabling lessons to be learned is one of the purposes of the investigation, but that purpose does not require the jury to spell out a negative in circumstances where they are enabled to state positively any factual findings that they wish. That this is so is supported by the rulings of the Strasbourg Court that the obligation is an obligation of means or an obligation of procedure, not of result. That characterisation of the obligation was referred to by Lord Bingham in the passage to which I have referred. 1. In any event, in the present case the jury were enabled in section 3 of the inquisition to refer to the circumstances in which the injury was sustained, but chose not to do so. Again, the terms of the summing-up are important. The coroner said that with regard to section 3, the jury "will need to discuss between yourselves the evidence which you have heard and agree the factual circumstances which give rise to the death. When describing the circumstances, you should be brief, neutral and factual, expressing no judgment or opinion." Section 3 of the form was a section to be filled in whichever verdict they came to. 1. The twelve acts and omissions which may have led the jury to conclude that a simple verdict of accident or suicide did not reflect their findings on those core facts were before them. They were said to be matters to consider in deciding whether to give a narrative verdict. 1. It follows from what I have said that I reject the submission that it was incumbent on the coroner to direct the jury expressly that a narrative summary should be added to a short form verdict. That essentially would have created a hybrid. The jury had three options open to them. They were "enabled" to express their conclusions on the core facts if they considered the two short form verdicts did not do so. 1. I also conclude that it is possible to infer from this verdict that the accident verdict was sufficient to express the jury's factual conclusions and conclusion that there was insufficient evidence that the twelve acts or omissions contributed to the death in more than a minimal or trivial way. 1. Miss Paterson's submission that I should not infer this was based on her submissions as to the significance of the word "explicit" in Middleton and the terms of the direction. I have, however, been assisted by the decision in R (Pekkelo) v Central and South East Kent Coroner [2006] EWHC 1265 (Admin), where a narrative verdict had been put to the jury but a list of questions offered by the parties had not been put. That case shows what it is possible for a court sitting in the position of a reviewing court to infer. 1. In paragraph 34 of his judgment, Hodge J said, paraphrasing, that the inquest in that case had before it all the background facts necessary to meet the investigative obligations now recognised as imposed by Article 2. All relevant persons involved with the deceased during her time in detention gave evidence. There was a difference in the evidence given by witnesses known to the deceased and those from the authorities as to what happened when the claimant in that case arrived in the United Kingdom. The report of an investigation by the immigration services into its procedures and conduct during the period of immigration detention was before the inquest. Issues arising from that report had been put to witnesses on behalf of the claimant. 1. It was submitted that the failure to put the list of questions, analogous to the twelve possible acts and omissions which in this case the coroner did put to the jury, meant that they were not assisted in reaching a narrative verdict, although a narrative verdict was left to them. Hodge J, in paragraph 38, did not agree. He stated the jury heard all the evidence over a seven-day period. The coroner summed up the position fully. Hodge J then said that by their verdict the jury clearly took the view that, given the medical evidence, those matters "did not in any way affect the cause of death which this lady subsequently suffered from". That was a case in which a short form verdict, as described by Lord Bingham in paragraph 36 of Middleton, was satisfactory. 1. I add that it is right to be cautious in drawing inferences as to what jurors must have decided. Although made in a different context of substitution of verdict, I have regard to the statement of Wilson J (as he then was) in R (Mowlem Plc) v HM Assistant Deputy Coroner for Avon [2005] EWHC 1359 (Admin) at [24] and [26]. 1. The nature of the obligation which is, as I have stated, an obligation of procedure not of result, is also relevant. I also have in mind in determining what it is possible for a different court to do in the different context of a substitution of verdict, the decision of Mitting J in R (Longfield Care Homes Ltd) v HM Coroner for Blackburn [2004] EWHC 2467 (Admin). In that case a verdict was substituted because Mitting J added words which appear to have been words from the post-mortem report which was not in fact before the jury (paragraphs 6 and 31). The words were that the deceased's death: "was probably accelerated by a short time by the effect on her pneumonia of injuries sustained when she fell through an unattended open window [at her residential home]." 1. A difficulty with the submissions made on behalf of the claimant, given that the options were left open to the jury to give a narrative verdict, or, if they considered that the short form verdict adequately expressed their conclusions on the findings, a short form one, is that Miss Paterson necessarily has had to characterise the core factual issue. That, however, is a matter for the jury. The jury had all the evidence in front of them. The jury was properly directed. In reality, a submission of this sort comes close to a submission that we should not have juries in coroners' cases. That is not our system either in coronial matters or in serious crime. In considering what must be put to a jury the court has to take into account that the facts are for them. This observation is not part of my conclusion, but a reflection of a concern that the submissions made on behalf of the claimant, if correct, would put the coroner's summing-up into something of a straitjacket. 1. Mr Mercer referred to a number of practical problems which would arise if what in effect is a hybrid verdict is required as well as a narrative verdict. These concerned the different burdens of proof and other differences concerning different verdicts, and the difficulty of satisfying the obligation of any judge presiding over a jury to present the issues clearly to the jury. 1. In view of my conclusion on the main issue, the question of substitution of verdict does not arise and there is no question as to whether to order a new inquest. 1. Miss Paterson submitted that, had she prevailed on the primary issue, there would be no prejudice in a new inquest because the death was only two years ago and the evidence would not be stale. She also submitted in her oral submissions, although this did not feature in the written submissions, that much of the evidence at a resumed hearing could be by reading transcripts or statements and that, in view of the frequency of suicide and self-harm in the female prison population, a new inquest would achieve a lot. She relied on the decision in the case heard alongside Middleton’s case, Sacker v Her Majesty's Coroner for West Yorkshire. But that of course was a case in which the old pre-Middleton narrow approach to "how" had been applied, understandably, by the coroner. 1. Miss Paterson is of course right that the frequency of suicide and self-harm in the female prison population is an important matter. But, had I concluded that the summing-up was in the way submitted defective, in deciding whether to order a new inquest, I would have taken account not only of that matter and the time since the death, but also of the overall position. I would have taken account of the Prison Ombudsman's report with its five recommendations, four of which have been entirely accepted by the Prison Service and the fifth of which has been partially accepted, with a qualification which seems to be realistic. There is no sign that lessons have not been learned. 1. I accept Mr Mercer's submission. In the light of the absence of criticism of the thoroughness of the investigation at the inquest or the evidence heard, and the narrowness of the criticism made of the coroner's summing-up, had the summing up been defective in the way that the claimant said it was, given the Ombudsman's report, this was not a case for remission. 1. I take into account the decision in Taylor, Crampton, Gibson and King v United Kingdom, Application 23412 of 1994, the Beverly Allitt case. That decision was a combination of criminal proceedings and a private health authority investigation did not even arguably infringe Article 2. Bearing in mind what the Strasbourg Court has said about not laying down the form of investigation, I consider it right to step back and look at the totality of the investigation in a particular case in considering this issue. 1. For those reasons, this application is dismissed. Before leaving the case, I would like to thank both counsel for the clarity and succinctness of their submissions. 1. MR MERCER: Thank you, my Lord, for giving judgment so quickly. There is no application. We tried to appear neutrally. We do not seek any costs. 1. MR JUSTICE BEATSON: Do you need a publicly funded....? 1. MISS PATERSON: Yes, my Lord. 1. MR JUSTICE BEATSON: You need a detailed assessment? 1. MISS PATERSON: Yes. 1. MR JUSTICE BEATSON: You can have that.

Cited in 1 later judgment