Lepage, R (on the application of) v HM Assistant Deputy Coroner for Inner South London & Ors [2012] EWHC 1485 (Admin)

Case No CO/4391/2011[2012] EWHC 1485 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 30/05/2012
Before
THE HONOURABLE MR JUSTICE OWENHIS HONOUR JUDGE PETER THORNTON QC(sitting as a Judge of the High Court)
Between
THE QUEENClaimantHM Assistant Deputy Coroner for Inner South LondonDefendantCommissioner of Police for the MetropolisInterested PartiesDr BrennanInterested Party
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Adam Straw (instructed by Bhatt Murphy Solicitors) for ClaimantMiss Samantha Leek QC (instructed by Southwark Council) for DefendantEdwin Buckett (instructed by E.B. Solomons, Director of Legal Services) for First Interested Party(No appearance by the Second Interested Party)Hearing Hearing dates: 3 May 2012
JudgmentHis Honour Judge Peter Thornton QC:
[1]Introduction This is an application for judicial review of decisions made by HM Assistant Deputy Coroner for Inner South London at an inquest held between 15 February and 3 March 2011. Permission to apply for judicial review was granted on the papers by Nicol J on 10 October 2011.[2]The death of Stacie LePage The inquest concerned the sad death of Stacie LePage. Stacie died on 22 March 2007 at St Thomas’s Hospital, London. She was just 18 years of age. It is undisputed that the cause of death was acute cocaine toxicity. The jury, on the coroner’s direction, returned a short verdict of accidental death (Box4). That direction and the verdict are not challenged. The jury made brief findings of fact (Box 3).[3]Stacie had been arrested by police on 19 March 2007. She was in the front passenger seat of a car which was stopped by police in Lewisham, south London, because of its driving. As police officers approached they saw Stacie lean forward towards the centre console. Smelling cannabis inside the car the police searched Stacie and the driver. She was non-compliant and resistant to her pockets being searched. She was restrained on the ground face down and handcuffed. On her person she had a wrap containing cocaine and some cannabis in a cigarette box.[4]Stacie was arrested and taken to Lewisham police station a short distance away. In the custody suite while being booked in she collapsed on the desk and some pinkish liquid came from her mouth. She may have been fitting. She was unsteady on her feet so was sat down on a bench with the handcuffs removed. She was asked if she had swallowed anything. The London Ambulance Service (LAS) were called, because, as the custody officer stated on the telephone, she had ‘swallowed a quantity of drugs and is now coughing up blood on the floor’. This call was made two minutes after Stacie’s first arrival at the custody desk.[5]At some stage she went to the floor, jerking her limbs. Dr Brennan, a Forensic Medical Examiner (FME), attended her. He believed she was feigning, assessing her movements as purposeful. He remained with her from that point.[6]Two minutes after the call for an ambulance Stacie was taken to a cell to be strip searched by three female officers. She struggled and flailed her arms about. She was restrained and handcuffed behind her back. The search revealed nothing. The events in the custody suite, except the cell where she was searched which had no CCTV for privacy reasons, were captured on CCTV (and timed).[7]When the LAS arrived, some six minutes after the call, Stacie was seen to be gagging and coughed up a small plastic bag believed at the time to contain drugs. In fact it contained cocaine. It was the finding of the jury that it was not known when Stacie had swallowed the drugs.[8]She was taken by ambulance to Lewisham Hospital where she suffered seizures and a cardiac arrest. She was transferred to St Thomas’s Hospital on 20 March 2007 and died there on 22 March.[9]Toxicology tests showed concentrations of cocaine at a level consistent with oral ingestion. The level was high and sufficient to cause death. Analysis of the bag revealed that it had been chewed and swallowed.[10]A post-mortem examination was conducted by Dr Benjamin Swift. He concluded that the cause of death was 1(a) Cardio respiratory failure and 1(b) Acute cocaine toxicity.[11]Investigation The IPCC conducted an investigation which concluded that no police officer should be the subject of criminal or disciplinary proceedings.[12]Extensive pre-inquest disclosure was given by the coroner to all interested persons. It included statements of witnesses, reports of experts, medical notes, police records, police guidance documents and CCTV footage.[13]The experts included Dr Benjamin Swift, the forensic pathologist who carried out the post mortem examination; Dr Paul Dargan, the toxicologist, and Professor Flanagan, an independent toxicologist, reviewing the toxicology evidence. Additionally both Dr Gary Everson, an expert in forensic medicine instructed to consider the care of Stacie while in custody, and Dr Guy Norfolk, an expert on medical care in custody, considered the appropriateness of the use of restraint and search as independent experts. There were also expert forensic scientists.[14]The proceedings The inquest was opened and adjourned on 28 March 2007 for further investigation. Pre-inquest reviews took place on 31 July 2009 and 21 April 2010. The inquest was resumed and concluded on 3 March 2011.[15]The scope of the issues was identified by the coroner at the second pre-inquest review. The issues included(i) the original stop and search at the scene,(ii) the cause of death,(iii) the care and management of Stacie at the police station,(iv) strip-searching and restraint at the police station, and(v) training. A note of the hearing suggests that the coroner was prepared to allow the question of search and restraint to be explored, ‘though its relevance to the verdict will depend on evidence as to causation’.[16]In her Summing Up the coroner directed the jury to return a short-form verdict of accidental death and to supplement that with a narrative. She gave written guidance on the narrative. She did not leave to the jury issues of restraint, force, search or training, or the advice given by Dr Brennan to police officers.[17]The jury duly returned a verdict in the Inquisition of accidental death, with a short statement of narrative. The jury referred in the narrative, amongst other things, to what happened in the police station and how Stacie was perceived at the time. The jury stated that Stacie coughed up a plastic bag which had contained cocaine. She had chewed it and swallowed it but the jury were unable to say when, where or how that had happened.[18]The claimants in this application are Stacie’s parents.[19]Representation Before us the claimants were represented by Mr Adam Straw of counsel. The coroner was represented by Ms Samantha Leek QC. The Commissioner of the Metropolitan Police was represented by Mr Edwin Buckett of counsel. I am grateful to all of them for their very helpful submissions, both written and oral.[20]The claimants’ submissions The claimants raised three main issues:(1) the failure of the coroner to call Dr Deryk James, a forensic pathologist, instructed by the claimants;(2) the failure of the coroner to call evidence of police training about custody procedures including restraint and collapse, and(3) the failure of the coroner to leave three ‘disputed factual issues’ to the jury.[21]At the heart of the claimants’ case is the assertion that Dr James would have been able to give evidence which went further than the other medical experts on causation of death. For that reason, it is submitted, the coroner should have called Dr James. His reports showed that restraint and search ‘may have caused or contributed to death’ (Skeleton Argument para.50). The failure of the coroner to call Dr James is therefore central to the claimants’ submissions.[22]The claimants also submit that a Middleton Article 2 inquest, as distinguished from the earlier Jamieson pre-Human Rights Act 1998 type of inquest, imposes a duty on a coroner to investigate possible as well as probable causes of death and to leave possible causes to the jury for them to consider in their verdict (see R (Middleton) v HM Coroner for West Somerset [2004] 2 AC 182; R v HM Coroner for North Humberside, ex parte Jamieson [1995] QB 1; Article 2 of the European Convention on Human Rights).[23]The claimants argue that as a result of the coroner’s errors the Inquisition should be quashed and a fresh inquest should take place before a different coroner.[24]The claimants’ written submissions are extensive. The Skeleton Argument, for example, is 98 paragraphs long. I have read them and I take all of them into account.[25]Other submissions The defendant coroner (the coroner) submits that she had a power but not a duty to call Dr James. She submits that the evidence of Dr James added nothing to the medical experts who were called, that his reports did not suggest that restraint or search were causative of death, and that she exercised her discretion not to call him reasonably and fairly.[26]The coroner further submits that evidence about training and other issues was called, but that at the end of the evidence there was no issue fit to be left to the jury on training, restraint, search or the advice given by Dr Brennan. There was therefore no good reason for leaving these issues to the jury.[27]She submits that she acted fairly and reasonably and lawfully in the evidence she called and the issues which she left to the jury. It was common ground that Article 2 was engaged, because of the events leading to Stacie’s death. This was, submits the coroner, a thorough investigation into the death of the deceased and a full inquiry at the inquest into how Stacie came by her death. It complied with the edicts in Jamieson that ‘the relevant facts are fully, fairly and fearlessly investigated’ and it complied with the interpretation in Middleton of ‘how’ meaning ‘by what means and in what circumstances’. As such the process fulfilled the requirements for an Article 2 inquest.[28]The First Interested Person, the Metropolitan Police Commissioner, adopted the submissions made on behalf of the coroner. He emphasises that the coroner has always had a broad discretion in the running of the inquisitorial process leading to a jury’s verdict, especially in the calling of evidence.[29]Decision of the court I have considered all of these submissions with care, in the light of the material put before us, which is considerable. We have had the benefit of full written and oral submissions from all concerned. In the end I am not persuaded by the claimants’ arguments. In my judgment the claimant’s case that the coroner acted unlawfully does not succeed. These are my reasons.[30]Reasons (1) The evidence of Dr Deryk James[31]The claimants submit that Dr James should have been called to give evidence. They submit that the coroner acted unlawfully in refusing to call him.[32]In my judgment an objective assessment of the evidence of Dr James demonstrates that he would have added nothing to the medical evidence that was called. The claimants, understandably, wanted to try to make a case for police officers having used unlawful force in the course of search and restraint, and wanted to deploy the evidence of Dr James for that purpose. But his reports provided no sufficient basis for that assertion. For that reason alone I conclude that the coroner was fully justified in refusing to call him. The decision was within her discretion and she exercised it reasonably and fairly.[33]Dr James’s reports are dated 8 February and 15 February 2011. He had been instructed on behalf of the claimants to review the relevant facts and expert opinions. He is an experienced forensic Home Office pathologist. The claimants asked the coroner to consider calling Dr James to give evidence because, they submitted, he had reached conclusions on potential causes of death in addition to cocaine toxicity.[34]Key conclusions from Dr James’s first report, the main report, are as follows:
“(1) In my view Stacie died as a result of cocaine toxicity which may have been exacerbated by the physical and mental consequences of arrest, restraint and body searching … I think that the risk of death occurring would have been generally increased by any struggle, restraint or mental stress (fear, anxiety) that occurred during the period of toxicity. (2) I do not think it is possible, either at the criminal or civil standard of proof, to conclude that any specific action or inaction on the part of Police or Dr Brennan, contributed to death. (3) [Considering Stacie’s management by the police and Dr Brennan] I can see in the statements no action that – to me – was clearly dangerous and unjustifiable … (4) The post mortem examination found no evidence of the application of grip holds or other injuries that might denote restraint or struggle … (5) [Considering restraint, struggle, fear and anxiety] Clearly there is significant speculation involved in attributing to any one of these factors a causal role …”
[35]The high point of the evidence of Dr James was therefore not very high. In his opinion it was only a possibility, involving ‘significant speculation’, that the cause of death (cocaine toxicity) ‘may have been exacerbated by the physical and mental consequences of arrest, restraint and body searching’. At its highest his main report did no more than raise the possibility that search and restraint may have exacerbated the position. But he also accepted that(i) the possibility was no better than speculative;(ii) there was no evidence of any harm done to Stacie, no action that was ‘clearly dangerous or unjustifiable’, and(iii) no ‘specific action or inaction on the part of Police or Dr Brennan contributed to death’.[36]The evidence of Dr James did not therefore pass the threshold of positive assistance to the inquiry. The possibility he raised was no more than speculative and speculation is no firm foundation for calling evidence. His evidence was neither at variance with any other medical opinion nor additional to it. And it is accepted by the claimants that the other medical opinion covered all the necessary expertises for the purposes of this inquiry.[37]There are clearly some restraint cases where the force used may cause or contribute to the death. But Dr James acknowledged in broad terms that this was not one of them:
‘Such deaths usually occur when the behavioural abnormality is more prolonged than in this case and when there is more obvious restraint – usually prone restraint on the back. The usual victims are heavy and male.’
This was not such a case. It was not a positional asphyxia case. Stacie was 5’8” and underweight. There were no obvious marks of restraint except where the handcuffs were placed. There were no injuries recorded at the post mortem investigation suggesting that restraint was in any way causative of death. None of the experts said that the restraint or search had made any contribution to the death. They were in all in agreement.[38]Once Professor Flanagan’s theory about obstruction of the airway was set aside and not relied on, the evidence of cause of death was all one way. Dr Swift, who carried out the post mortem, concluded that ‘There was therefore no pathological evidence to support a view that the restraint of the deceased had caused or contributed to her death’. In evidence he said that ‘the manner in which she was restrained is not one that is associated with such deaths’. He found no evidence of the use of excessive force.[39]Dr Dargan concluded:
“In my opinion the severe, treatment resistant, seizures seen in this patient were due to cocaine toxicity and this was the cause of the patient’s death. The cardiac arrest that the patient experienced could either have been directly related to cocaine toxicity, or have occurred as a result of hypoxia/acidosis due to the patient’s seizure activity.”
In evidence he considered that a drug such as cocaine “raises the level of the transmitters in the blood that causes anxiety, [but] the additional activity that you see is clinically irrelevant, because you have already got such significant overdrive of those symptoms that additional anxiety is not of relevance …”[40]Dr Everson, a police surgeon and lecturer in Clinical Forensic Medicine, stated:
“In my opinion, having considered the information currently provided to me, I do not believe that the transfer of Stacey Le-Page to a cell, following her apparent ‘collapse’ at Lewisham Police Station for the purposes of a strip search, with the restraint/handcuffing that this search entailed, would have had any significant impact on the final outcome.”
[41]In evidence Dr Everson made ‘no criticism of the police handling of Stacie while she was in custody’. Dr Norfolk had no criticism of Dr Brennan, the FME, in his care of Stacie at the police station.[42]It is perfectly understandable that the family of Stacie was concerned that(a) the police may have used excessive force on Stacie and/or(b) that she may not have been given sufficient care or sufficiently prompt treatment at the police station. This kind of suspicion is inevitable from the circumstances leading to Stacie’s death. It also reflects what Lord Bingham described in Jamieson as ‘the acute public concern rightly aroused where deaths occur in custody’ (or as in this case shortly afterwards). This suspicion, this concern, must be investigated by the coroner. But when all the evidence was considered in this case there was just no support for the suspicion that excessive force had been used or that Stacie’s treatment had fallen below what was necessary and appropriate.[43]The coroner did not, therefore, in this case err in law in deciding not to call Dr James, for three reasons. First, the evidence of Dr James added nothing to the medical evidence which the coroner did call. Second, the search and restraint had no bearing on the death. The evidence of Dr James did not go far enough to suggest that it did. The claimants’ assertion that Dr James’s evidence was clearer and more persuasive than the other experts on causation was unconvincing. The thrust of the evidence was all one way, including that of Dr James. There was ample medical evidence that restraint and force had played no part in the death. Third, even if restraint had had any possible bearing on the death, the coroner exercised her discretion quite properly to exclude it. (2) Discretion, power and duty[44]In my judgment the coroner had a discretion whether to call Dr James and she exercised that discretion reasonably and fairly. She did not act Wednesbury unreasonably. As the decision in R (Lewis) v Mid and North Shropshire Coroner [2010] 1 WLR 1836 shows, she had no duty to call the evidence of Dr James, even if he had raised a real possibility (which he did not) of search and restraint being a contributing cause of death. Her failure to call Dr James was therefore not unlawful.[45]In Lewis the Court of Appeal held that the coroner has a power but not a duty to leave to the jury in a Middleton inquest circumstances which were possible but not probable causes of death. Sedley LJ was ‘unable to find a reason of principle for making it a duty’. Etherton LJ concluded that only matters which probably had a causal connection to death could form part of a verdict. There is therefore no requirement in a Middleton inquest to leave questions to a jury in respect of matters which possibly caused or contributed to the death.[46]In Lewis Karl Lewis had hanged himself in his cell. The prison staff took some time to cut him down and the procedures after the hanging were considered inadequate. Those procedures were relevant to the coroner’s Rule 43 obligations but not necessarily to the jury’s narrower considerations. The coroner could, said the Court, have taken the jury’s verdict on such questions, but she had no duty to do so.[47]The claimant seeks to distinguish the present case from Lewis, submitting that the inquiry in Lewis was only complete for the purposes of Article 2 because of the Rule 43 report. In this case, it is submitted, there was no Rule 43 report therefore the inquest itself had to be of wider scope, and to such an extent that the power had to become a duty.[48]This is a bold submission. I do not agree with it. The ratio of Lewis is clear. Like many coroner cases Lewis was fact-specific. But the point of principle was clearly stated, identifying a power but not a duty. On the specific facts of Lewis, the Rule 43 report was important because the coroner had decided to make one. But it is no part of the decision in Lewis that in the absence of a Rule 43 report the power becomes a duty. The claimant’s proposition runs contrary to the decision in Lewis. It also runs contrary to established coroner law on the coroner’s broad discretion.[49]Although the coroner must of course investigate ‘fully, fairly and fearlessly’ (Jamieson at [26B]), she must also be allowed to ‘set the bounds of the inquiry’ (ibid). There are other decisions which emphasise this point robustly. For example, as Brooke LJ stated in R v Coroner for Lincolnshire, ex parte Hay, 19 February 1999, CO/2155/97 & CO/2210/98:
‘We are unwilling for our part, to fetter the discretion of a coroner by being at all prescriptive about the procedures he should adopt in order to achieve a full, fair and thorough hearing.’
[50]That applies to leaving verdicts to the jury: R v Inner South London Coroner, ex parte Douglas-Williams [1999] 1 All ER 344. It also applies to the calling of witnesses, including experts. As Sir Anthony Clarke MR stated in R (Takoushis) v Inner North London Coroner [2006] 1 WLR 461, 478, if an interested person wishes a coroner to call expert evidence, that person may put the substance of the evidence before the coroner ‘so that the coroner may be able to decide whether or not it is appropriate’.[51]It is for the coroner to call at the inquest ‘all persons who tender evidence as to the facts of the death … whom he considers it expedient to examine’: Section 11(2) of the Coroners Act 1988. It is for the coroner to decide how to adduce the necessary evidence as to death: McKerr v Armagh Coroner [1990] 1 WLR 649, 656. The coroner is not required to call every witness who might have relevant evidence, but sufficient witnesses to undertake a proper inquiry: R (Ahmed) v South and East Cumbria Coroner [2009] EWHC 1653 Admin, [35]. The coroner has a wide discretion on the calling of witnesses: Mack v HM Coroner for Birmingham [2011] EWCA Civ 712, in which the Court of Appeal considered a complaint by the family that the coroner had refused to call an important medical witness who had care of the deceased in the days before he died. Toulson LJ stated at [9]:
“The coroner has a wide discretion – or perhaps more appropriately a wide area of judgment – whom it is expedient to call. The Court will only intervene if satisfied that the decision made was one which was not properly open to him on Wednesbury principles.”
[52]There is helpful guidance on current practice in the 12th edition of Jervis on Coroners, the principal editor of which is Professor Paul Matthews, HM Coroner for the City of London. While recognising that the coroner’s decision not to call a particular witness is ‘not unassailable’ (para.10-15), the author refers to the coroner alone having the power to call witnesses at an inquest, and states (at para.10-13) under the heading ‘Power to call witnesses’, in a passage cited with approval by Foskett J in R (Warren) v HM Assistant Coroner for Northamptonshire [2008] EWHC 966 (Admin):
“Hence the coroner, and no-one else, decides which witnesses can give relevant evidence, and hence shall be called. This applies to the production of documents as to the giving of oral evidence. And notwithstanding that there may be an obligation at common law for all persons able to give evidence to attend at the inquest, it is still for the coroner, on the basis of ‘expedience’, to decide who should be examined.”
[53]Faced with the decision in Lewis and the obvious existence of the coroner’s discretion, the claimant submitted that there is nevertheless a separate free-standing duty on the part of the coroner to inquire into all possible issues in an Article 2 inquest. I do not accept that submission. There is no authority for it. On the contrary in Bubbins v UK [2005] 41 EHRR 24 at [153] the European Court of Human Rights stated that in an Article 2 inquiry ‘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’ [my emphasis]. Four years later the Court of Appeal in R (Allen) v HM Coroner for Inner North London [2009] EWCA Civ 263 used a different phrase, ‘the central issues’. The Court expressed the opinion that in a Middleton inquest ‘it was not incumbent on the coroner to investigate, still less to state his conclusion in relation to, every issue raised by the claimant, however peripheral to the main questions to be determined … The coroner was only obliged to investigate those issues which were, or at least appeared arguably to be, central to the cause of death’ (paras. 33 and 40). The Court referred to Lord Bingham’s observation in Middleton (at [36]) that in an Article 2 inquest ‘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’. The Court of Appeal emphasised the words ‘on the central issue or issues’ and added (at para.33):
‘The coroner was, therefore, required to do no more than focus the investigation and the inquisition on the central issue or issues in the case.’
[54]In my judgment the coroner did exactly that in this case. The question of excessive force in the use of restraint had the potential to become a central issue, but the evidence was never there to elevate it to that status. Nor did the reports of Dr James produce that elevation, the claimants’ understandable objective. Although the inquiry is ‘almost bound to stretch wider than strictly required for the purposes of a verdict’ (per Lord Bingham at [24] in Re Jordan and McCaughey [2007] 2 AC 226), ‘How much wider is pre-eminently a matter for the coroner …’ (ibid.).[55]Article 2 inquiries vary. The duty to investigate imposed by Article 2 ‘covers a very wide spectrum’: R (L) v Secretary of State for Justice [2009] 1 AC 588, 612. ‘Different circumstances will trigger the need for different types of investigation with different characteristics’ (ibid.). This was not a case where the deceased had been shot by a police officer or had died following excessive restraint in police custody. Stacie had ingested a substantial quantity of cocaine and died from it. The inquiry, which had to be thorough, also had to be tailored to those circumstances. In my judgment the coroner did that with care.[56]The claimants’ submission that all possible issues should be investigated relied upon the decision of the European Court of Human Rights in Mammadov v Azerbaijan Application No.4762/05, 17 March 2010. There the Court found the domestic investigation inadequate ‘as it failed to seek answers to all the issues relevant for an assessment of the State agents’ role’ (at [123]). The key word there is ‘relevant’, meaning relevant to the central issues in the inquiry and not all possible issues and certainly not one (as here) which did not arise on the evidence. (3) Power and discretion to be exercised reasonably and fairly[57]The power of the coroner (identified in Lewis) or the discretion to call (or read) or not to call (or read) a witness or produce a piece of evidence, must be exercised Wednesbury reasonably. The phrase used by Lord Woolf MR in relation to leaving verdicts in R v Inner South London Coroner, ex parte Douglas-Williams [1990] 1 All ER 344, 349 was “acting reasonably and fairly”.[58]Even assuming that there was something of extra value in Dr James’s evidence (which in my view there was not), the power was exercised reasonably in this case. The coroner read and listened to submissions on the point and considered Dr James’s reports in the light of other evidence, notably the expert medical evidence dealing with restraint. She made an initial decision but was prepared to re-visit it after hearing the other experts (transcript pp464-466). She did re-visit the decision as indicated, and came to a conclusion after hearing counsel on each occasion (transcript pp521-522). She allowed counsel for the claimants to cross-examine Dr Swift on the basis of Dr James’s report (but without being able to read passages out).[59]In R (Goodson) v Bedfordshire and Luton Coroner [2006] 1 WLR 432 Richards J adopted a different approach. The question to be asked, he said, was less about the reasonableness of the exercise of the discretion and more about a judgment of whether more was required for Article 2 purposes. The complaint concerned the coroner’s failure to obtain certain independent expert evidence. At p.459 he said:
“The matter therefore comes down to whether the coroner’s judgment that fuller investigation was not required in the circumstances was a lawful judgment. In the context of the sufficiency of an investigation under Article 2 it seems to me that the court, rather than simply asking whether the coroner’s judgment was reasonably open to him in the Wednesbury sense, must form its own judgment on whether more was required, in particular by way of independent expert evidence. In forming such a judgment, however, the court must take account of its own lack of medical expertise and must pay an appropriate degree of deference to the judgment of the coroner, who is more experienced in these matters and was closer to the actual evidence in the case.”
[60]Either way, whether in the evaluation of the exercise of the discretion or in the evaluation of the sufficiency of the Article 2 investigation, there can be but one conclusion in this case. The coroner did all that she needed to do to fulfil her duties and obligations.[61]Having said that, I would like to make this observation. The coroner might have been wiser to have called Dr James. His evidence may well have added little if anything to the inquiry into the death. But much time, effort, and expense might possibly have been avoided in this application for judicial review, let alone prolonged anxiety for the bereaved family. More importantly the coroner might have achieved one of the several purposes of a Middleton Article 2 investigation, as emphasised by Lord Bingham in Amin, namely that ‘suspicion of deliberate wrongdoing (if unjustified) is allayed’: R (Amin) v Secretary of State for the Home Department [2004] 1 AC 653.[62]The bereaved family will have quite naturally harboured all manner of suspicions about the tragic death of Stacie. One of those would have related to the conduct of the police and others while Stacie wasdetained after her arrest. It might have been sensible to have called Dr James, if only to have explored and if necessary to have exposed in public view the limitations of his opinion. It would have shown the unanimous agreement of the medical men. Dr James was after all a witness whose opinion the claimants had sought. Although all medical experts are independent, the family would have seen Dr James as their independent witness. His evidence might have brought a completeness to the process.[63]I stress that there was no duty to call Dr James, no requirement to do so, and the exercise of the coroner’s discretion not to call him cannot be criticised. It was not unlawful to refuse to call him. But in all the circumstances it might have been better, not as a matter of law but as a matter of practical justice. As Brown LJ observed in an inquest context in R v Inner West London Coroner, ex parte Dallaglio [1994] 4 All ER 139, 155, citing Bingham LJ in a natural justice context in R v Chief Constable of the Thames Valley Police, ex parte Cotton [1990] IRLR 344, 352: ‘This is a field in which appearances are generally thought to matter’. (4) Evidence about police training[64]This is, in effect, a development of the claimants’ submission about Dr James. The submission is very much dependent upon the claimants’ assertion that Dr James would have provided added value to the inquest. The claimants argue that if Dr James had been called then the training of police officers in search and restraint would have become a necessary issue; his evidence would have shown that search and restraint could have been a possible cause of death.[65]The flaw in that submission is that Dr James’s evidence did not go as far as the claimants assert, not by a long way (see paras.31-37 above). Nor did any other evidence from the medical experts who were called. For that reason the foundation for this submission is absent, and the submission must therefore fail.[66]The claimants make a further submission. The coroner was wrong to call no further evidence of training, it is submitted, because the coroner has a duty in an Article 2 inquest to inquire into systemic failings even if they are not causative of death.[67]I do not accept this submission. The submission that an Article 2 inquiry is unlimited is contrary to authority as I have shown above. In any event this inquest was not silent on training. In accordance with the issues identified at the second pre-inquest review, the coroner called evidence on searching, restraint and training. Relevant police witnesses were asked about the nature and extent of the training they had received about dealing with detainees who might have swallowed drugs and about those who were believed to be fitting. Training documents were disclosed by the police. Dr Everson gave evidence about the timeliness of police action and whether the supervision of the deceased was appropriate.[68]In my view the coroner’s inquiry on this topic was sufficient. There was an investigation by the IPCC. Evidence of fact and opinion was called by the coroner on the issue of search and restraint. At the end of the day, however, there was no sufficient evidence of any contributing cause from restraint, force or search. All experts agreed. The experts were at one in concluding that, whatever the training the police had received, they had acted properly, justifiably, and not dangerously. There was therefore no need to go further.[69]The failure of the coroner to call further evidence about training of police officers in relation to restraint and the use of force was therefore not unlawful. The coroner’s ruling at pp 432-433 of the transcript cannot be criticised. She did not misdirect herself. (5) The three issues[70]Following on from theclaimants’ submission on training, the claimants further submitted that the coroner denied the jury the opportunity to arrive at conclusions in their verdict on three factual issues:(i) whether it was appropriate for police to restrain, handcuff and strip-search Stacie in the cell;(ii) whether training and guidance given to the police on restraint in circumstances where somebody may have swallowed drugs were adequate; and(iii) whether the police doctor, Dr Brennan, gave appropriate advice to the police about Stacie’s condition.[71]The claimants submitted that the jury’s verdict should have been taken on these three issues because there was disputed evidence of fact. It was further submitted that the three issues fell into the category of possible causes of death and therefore the coroner had a duty to leave them to the jury.[72]I will take this shortly. In my judgment the coroner’s ruling cannot be criticised (transcript pp778-782). She rightly found nothing in the evidence to suggest that there were any failings on the part of the police or Dr Brennan which should be left to the jury. She was right to rely both on the lack of evidence and on the decision in Lewis (above) as not requiring her ‘to put every possible causative matter to a jury’ (p780).[73]The claimants’ submission that she was wrong on a Galbraith basisabout the extent of the evidence is not supported by the evidence. Accordingly, the jury did not need to consider any of the ‘three issues’. The claimant submits that there was a real conflict of evidence on these three issues. I do not agree. There was nothing of substance for the jury to decide.[74]Conclusions For these reasons the application fails. Lord Bingham explained in Middleton that ‘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’ (202C). He added that ‘the choice [of how to elicit that conclusion] must be that of the coroner and his decision should not be disturbed by the courts unless strong grounds are shown’ (202E). For my part I find no good reason for interfering with the approach which the coroner took.[75]I am quite satisfied looking at all the evidence that this was an effective Art 2 investigation. The level of scrutiny was sufficient for the purposes of this death. It was sufficient in this case for the coroner to direct the jury that the only possible short-form verdict was accidental death and to ask them to consider making brief findings of fact, both of which they complied with.[76]For all these reasons I reject the claimants’ submissions and dismiss this application.

Mr Justice Owen: I agree.

Cited in 8 later judgments