Secretary of State for Justice, R (on the application of) v HM Deputy Coroner for the Eastern District of West Yorkshire & Ors [2012] EWHC 1634 (Admin)

Case No CO/5707/2012[2012] EWHC 1634 (Admin)IN THE HIGH COURT OF JUSTICECORONERVenue Royal Courts of Justice, Strand, London, WC2A 2LLDate 14/06/2012Before: Mr Justice Haddon-Cave
Between
The Queen (On application of The Secretary of State for Justice)Claimant
Cathryn McGahey (instructed by The Treasury Solicitor) for ClaimantJonathan Hough (instructed by Wakefield Council Legal Services) for DefendantLeslie Thomas (instructed by Lester Morrill Solicitors) for First and Second interested PartiesHenry Mainwaring (instructed by Thompsons Solicitors) for Third, Fourth and Fifth interested PartiesBertie Leigh (instructed by Hempsons Solicitors) for Seventh Interested PartiesHearing Hearing date: 8 th June 2012
Judgment
[1]These judicial review proceedings concern a decision by a coroner to leave verdicts of unlawful killing by murder and unlawful killing by gross negligence manslaughter to a jury. Background Death in custody in September 2007

Background

[2]In the early hours of 28 September 2007, a prisoner (“KO”) died in his single cell at HM Prison Leeds. He was found by prison officers on duty apparently hanging, or partially suspended, from his bed sheet, one end of which was wrapped round his neck and the other end tied to the window bars above him. There was no sign of disturbance or struggle in the cell. He had a significant ligature mark round his neck. A police investigation found no evidence of any third party involvement in his death. A post mortem and forensic examination was carried out and the pathologist, Professor Milroy of Pinderfields Hospital, Wakefield, confirmed self inflicted death by hanging with a bed sheet.[3]KO was an Ethiopian national. He was married with two young children. He had come to the United Kingdom in 2003 and made an unsuccessful asylum application. He spoke limited English. The three months before his death had been traumatic. On 30 June 2007, he had been arrested for the murder of his wife. She had suffered multiple stab wounds. He had sustained serious knife wounds to his hands. His children had witnessed the attack. He was arrested at the scene and told police that he would kill himself at the first opportunity.[4]KO was remanded in custody to HMP Leeds on 4 July 2007. He was immediately admitted to the Healthcare Centre at HMP Leeds because of the injuries to his hands. He was also placed on the ACCT programme (“Assessment, Care in Custody and Treatment”) because he was a known suicide risk. Initially, he refused surgical Teamwork for his injuries, which included ligament damage, but then relented and on 12 July 2007 underwent surgery at Leeds General Infirmary. He was returned to the Healthcare Centre with his hands in plaster and heavily bandaged and required considerable assistance. He was taken off the ACCT on 18July 2007, by which time he maintained that he no longer had any suicidal thoughts. Whilst in the Healthcare Centre, KO had asked repeatedly about his children who had witnessed their mother’s death. He was told he would not be permitted to see them. He was distressed about this and concerned for their welfare. He was invited to write to them.[5]KO remained at the Healthcare Centre until 27 August 2007. He was then moved to an ordinary wing at HMP Leeds, ‘C’ Wing, which houses some [220 prisoners]. HMP Leeds houses some 1,200 prisoners in total.

The Inquest in April/ May 2012

[6]The hearing of an inquest into the death of KO was commenced on 16th April 2012 before Her Majesty’s Deputy Coroner for the Eastern District of West Yorkshire (“the Deputy Coroner”) and is currently on-going. The Deputy Coroner is sitting with a jury and is conducting an ‘enhanced’ inquest pursuant to the requirements of Article 2, ECHR. Wide-ranging evidence as to the circumstances surrounding the death of KO has been heard over a period of six weeks.[7]At the conclusion of the evidence, and following argument from interested parties as to what short form verdicts should be left to the jury, the Deputy Coroner gave a ruling on 28 May 2012. She ruled that as well as(a) ‘accidental death’,(b) ‘suicide’ and(c) an ‘open’ verdict, two verdicts of ‘unlawful killing’ should also be left to the jury, namely,(d) murder and(e) manslaughter by gross negligence. There were objections to the ruling on (d) and (e). Following further submissions, she agreed to adjourn the inquest for a short period to allow a challenge to her ruling to be brought.

Judicial Review proceedings

[8]On 31 May 2012, the Secretary of State for Justice (“SSJ”) issued Judicial Review proceedings seeking to quash her ruling that (d) unlawful killing by murder and (e) manslaughter by gross negligence should be left to the jury.[9]On 1 June 2012, Lindblom J. ordered a rolled-up hearing and laid down a tight timetable for the determination of the matter, the Deputy Coroner having helpfully agreed not to resume until 11 June 2012.[10]On 7 June 2012, a hearing took place before me in vacation at which the Deputy Coroner and all the interested parties were represented or made submissions. It is to the credit of all parties and their legal teams that this hearing has taken place in such short and good order. It is clearly important that the conclusion of the inquest should not be unduly delayed. Since I am asked to determine the matter on an urgent basis, I shall set out my reasons and decision in this judgment relatively shortly.

DEPUTY Coroner’s Ruling

[11]In her admirably clear ex tempore ruling on 28 May 2012, the Deputy Coroner directed herself in pure Galbraith terms (see further below), and explained her reasons for leaving the verdicts of murder and manslaughter by gross negligence to the jury. Murder[12]The Deputy Coroner’s reasons for leaving unlawful killing by way of murder to the jury essentially relied upon the evidence of two witnesses. First, the evidence of the next door inmate, Driver, who gave evidence that he woke up during the night around 1 to 2 a.m. and heard a ‘commotion’ in KO’s cell. Second, the evidence of the reviewing pathologist Dr Richard Shepherd. The Deputy Coroner’s pointed to a number of aspects of Dr Shepherd’s evidence from which the jury might conclude that the bed sheet was not the operative ligature and, therefore “another method of asphyxiation was employed, and [KO]’s purported suicide was, in blunt terms, staged, which argument inevitably points to third party involvement…”. The Deputy Coroner referred, in particular, to Dr Shepherd’s evidence that(1) the fracture to KO’s voice-box was consistent with significant force being applied in that area, whether by hanging or ligature strangulation or manual strangulation;(2) the ‘looping’ of a bed sheet was an unusual mechanism for hanging;(3) the ligature mark had features which tended to point away from the bed sheet(4) KO had two additional abrasions, neither of which was consistent with the simple application of a noose round the neck made from a bed sheet, and one of which was unlikely to have been self-inflicted. Gross negligence manslaughter[13]The Deputy Coroner’s reasons for leaving unlawful killing by way of gross negligence manslaughter to the jury were, in summary, that there was evidence upon which the jury could conclude that KO had taken his own life because of bullying by other prisoners, which had been caused by rumours that he was a sex offender spread by a number of prison officers. The Coroner referred to several aspects of the evidence. Firstly, a ‘mass’ of evidence regarding KO’s general vulnerability and evidence that a number of prison officers had knowledge of his ACCT file. Second, evidence that KO had been subjected to ‘bullying’ by fellow inmates as a result of rumours on ‘C’ Wing that he was a ‘sex offender’ which three prison officers, Adam Kitching, Amanda Whittaker and Bernica Williams (the Third, Fourth and Fifth Interested Parties) had been involved in spreading. Third, evidence from another prisoner, Phillips (who has since passed away), that KO had told him he was ‘scared’ in prison. Fourth, evidence that being labelled a ‘sex offender’ could make life unbearable in prison (and this was a foreseeable consequence of spreading such rumours).

The challenge

[14]Ms Cathryn McGahey, who appeared for the SSJ, challenged the Deputy Coroner’s decision on both murder and gross negligence manslaughter. The challenge was supported by Mr Henry Mainwaring for the Third, Fourth and Fifth Interested Parties, by the Sixth Interested Party who submitted written submissions and by Mr Bertie Leigh for the Seventh Interested Party.[15]Mr Leslie Thomas appeared for the First and Second Interested Parties and submitted that there were no grounds for interfering with the Deputy Coroner’s decision on either aspect.[16]The Deputy Coroner also helpfully appeared by Mr Jonathan Hough, in order to explain her reasoning and the factual background to this complex inquest and to assist the Court on matters of coronial law and procedure. The Deputy Coroner wished to make it clear that she would, of course, abide by any decision or guidance from the Court.

The law

[17]When deciding what verdicts or findings to leave to a coronial jury, a coroner makes a judgment based on evidential sufficiency. The test to be applied by a coroner in these circumstances is similar to the Galbraith test used by a Crown Court on a submission of ‘no case to answer’, but arguably with a modest gloss or addition.

Pure Galbraith

[18]The classic Galbraith test as laid down by Lord Lane CJ in R v. Galbraith (1981) 73 Cr. App. R. 124, CA, is as follows: “(1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence.(a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case.(b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury. It follows that we think the second of the two schools of thought is to be preferred. There will of course, as always in this branch of the law, be borderline cases. They can safely be left to the discretion of the judge."(emphasis added)[19]The two ‘schools of thought’ referred to by Lord Lane, of which the CA in Galbraith preferred the second, were explained earlier in the judgment:
“There are two schools of thought: (1) that the judge should stop the case if, in his view, it would be unsafe (alternatively unsafe or unsatisfactory) for the jury to convict; (2) that he should do so only if there is no evidence on which a jury properly directed could properly convict. Although in many cases the question is one of semantics, and though in many cases each test would produce the same result, this is not necessarily so. A balance has to be struck between on the one hand a usurpation by the judge of the jury’s function and on the other the danger of an unjust conviction.”

Galbraith ‘plus’

[20]The authorities recognise that there is some (if small) distinction between the position of a coroner deciding what verdict to leave to a jury after hearing all the evidence and that of a judge in a criminal trial considering whether to stop a case after the conclusion of the prosecution case. This was made clear by Waller LJ in R (Bennett v HM Coroner for Inner South London [2007] EWCA Civ 617). Waller LJ cited passages of Lord Woolf MR in R v HM Coroner for Exeter, Ex Parte Palmer [1997] CA (10 December) and Leveson J in Sharman v. HM Coroner for Inner North London [2005] EWHC 857 (Admin) and made the following observation (at paragraph [29]): “The emphasis seems to be on the safety of leaving a particular verdict to the jury”.[21]Waller LJ went on to note that the very issue in Galbraith was which of the ‘two schools of thought’ was to be preferred. He cited the two ‘schools of thought’ passage from Galbraith set out above and, after observing that the CA in Galbraith preferred the second school of thought (“…no evidence on which a jury properly directed could properly convict…’) to the first (“…unsafe or unsatisfactory for the jury to convict…”), said as follows:
“[30.] But the language of Lord Woolf and Leveson J, so far as coroners are concerned would seem to be nearer the rejected school of thought, albeit Woolf was saying that a coroner should not “decide matters which are the province of the jury”
. I would understand the essence of what Lord Woolf was saying is that coroners should approach their decision as to what verdicts to leave on the basis that facts are for the jury, but they are entitled to consider the question of whether it is safe to leave a particular verdict on the evidence to the jury, i.e. to consider whether a verdict, if reached, would be perverse or unsafe and to refuse to leave such a verdict to the jury. (emphasis added)”[22]Waller LJ held on the facts of that case that the coroner was right to take the view that a verdict of unlawful killing could not be safely left to the jury in that case (see paragraph [34]).[23]It is clear, therefore, that when coroners are deciding whether or not to leave a particular verdict to a jury, they should apply a dual test comprising both limbs or ‘schools of thought’, i.e. coroners should(a) ask the classic pure Galbraith question “Is there evidence on which a jury properly directed could properly convict etc.?” (see above) plus(b) also ask the question “Would it be safe for the jury to convict on the evidence before it?”. The second limb, arguably, provides a wider and more subjective filter than the first in certain cases. In my view, this extra layer of protection makes sense in the context of a coronial inquiry where the process is inquisitorial rather than adversarial, the rights of interested parties to engage in the proceedings are necessarily curtailed and coronial verdicts are at large.

Deputy Coroner’s test deficient

[24]The Deputy Coroner directed herself as to the test in pure Galbraith terms only. In her ruling she said:
“I am helpfully referred to the test laid down in R v. Galbraith, which states that when a submission of no case was made, the case was to be stopped when there was no evidence that the person charged had committed the crime alleged, and was also to be stopped if the evidence was tenuous and the judge concluded that the prosecution’s evidence taken at its highest was such that a properly directed jury could not properly convict on it; but that where the prosecution’s evidence was such that its strengths and weakness depended on the view to be taken of the reliability of a witness or other matters which were, generally speaking, within the province of a jury, and one possible view of the facts was that there was to be evidence on which they could properly conclude that the person charged was guilty, the matter was to be tried by them; that borderline cases were in the judge’s discretion.”
[25]In my judgment, the Deputy Coroner’s direction to herself as to the test to be applied was deficient. She failed to ask herself the second question, namely “Would it be safe for the jury to convict on the evidence before it?”. Her direction as to the test to be applied when considering whether verdicts of unlawful killing should go before the jury did not, therefore, follow the guidance in the authorities outlined above. In fairness to her, she was not unfortunately referred to Waller LJ in Bennett (supra) but only to Lord Woolf MR in Ex Parte Palmer (supra). Unlawful killing by

Murder

[26]I have considered the relevant evidence and submissions regarding the question of unlawful killing by murder. In my judgment, the Deputy Coroner’s decision to leave a verdict of unlawful killing by murder to the jury was wrong and unsustainable for the following reasons.[27]First, prisoner Driver’s evidence provides an uncertain basis for the jury to conclude that prison officers (or others) entered KO’s cell by stealth during the night and attacked him. He did not give a statement to police until November 2011. He was very probably mistaken as to the time he was woken and the ‘commotion’ he heard was simply the disturbance when KO’s body was discovered by prison officers in the next door cell at about 5 a.m. Driver could not be sure of the precise time he was woken but said “it felt like it was about one, two o’clock”. He did not have a clock or watch. It appears likely that he fell asleep again. He gave evidence that “the next morning” he heard his neighbour was dead. He heard only one incident not two. He described it as hearing “all the officers going up and… the door open”. As Ms McGathey submitted, it is inherently unlikely that officers intent on mischief would make such a noise on the way to a victim’s cell.[28]Second, there was a complete lack of evidence as to any motive or rationale for murder. No reason was suggested to why any prison officers would wish to harm KO let alone conspire to murder him. There was no evidence of any particular prison officer having any personal animus towards KO who had only been on ‘C’ Wing a relatively short time. There was no evidence of any conspiracy.[29]Third, there was no sign of any struggle in the cell. A struggle would be expected if KO had been forcibly strangled or garrotted with a ligature by assailants (there being no toxicological evidence that he had been drugged first). No other ligature was found, save the bed sheet.[30]Fourth, the evidence of the original forensic pathologist, Professor Milroy of Pinderfields Hospital, Wakefield, was unequivocal: death was due to “self-suspension hanging” with the use of a bed sheet (see his police statement date 4th January 2008). In so far as the Deputy Coroner failed to take account of the evidence of Professor Milroy, she was in error: Professor Milroy had the considerable advantage of examining the body and conducting the original Post Mortem in 2007 and was clear in his conclusion.[31]Fifth, a fair summary of the thrust of Dr Shepherd’s evidence was that, whilst there were some unexplained oddities and gaps in the post mortem and for this reason he could not exclude alternative possibilities,(1) he could find no evidence to suggest third party involvement in KO’s death,(2) the ligature mark was consistent with hanging with the use of a bed sheet,(3) the other abrasions on KO’s neck, whilst atypical, could have been self-inflicted by KO himself in the throes and(4) he could not say that Professor Milroy’s conclusion was incorrect (and was, at best, on the fence or the ‘tipping point’). Dr Shepherd’s findings were, therefore, not inconsistent with suicide and he was unable to gainsay Professor Milroy’s conclusion that it was suicide.[32]In my judgment, in reaching his decision, the Deputy Coroner erred in placing undue weight on Dr Shepherd’s evidence at the expense of Professor Milroy’s evidence when, unlike Professor Milroy, Dr Shepherd had not had the advantage of having seen and examined the body (and was given the unenviable task of second-guessing five years after the event whether the post mortem showed any indications of third party involvement in the death). Moreover, the Deputy Coroner also fell into error in failing to give sufficient weight to the overall thrust of Dr Shepherd’s evidence as set out above and focusing exclusively on some of Dr Shepherd’s equivocal conclusions (which, in any event, were not inimical to a verdict of suicide). Summary on murder question[33]For the above reasons, in my judgment, the Deputy Coroner misdirected herself and erred in deciding that a verdict of unlawful killing by murder could go forward to the jury. In my view, the result is the same whichever of the two ‘schools of thought’ referred to in Bennett (supra) is applied. There is no evidence upon which the coronial jury, properly directed, could properly bring forward a verdict of unlawful killing by reason of murder in this case. In any event, such evidence as there is tenuous in the extreme. Accordingly, if the Deputy Coroner had asked the question whether it would be safe to leave a verdict of unlawful killing by murder to the jury she would have concluded that it would be manifestly unsafe to do so. Further, in so far as is necessary, I find that the Deputy Coroner’s decision was Wednesbury unreasonable. Unlawful Killing by Gross Negligence Manslaughter The Law

Unlawful Killing by Gross Negligence Manslaughter

[34]The essential elements of manslaughter by gross negligence were set out by Lord Mackay in the well-known case of R v Adomako [1995] 1AC 171, at page187, as follows:
“… in my opinion the ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of a duty of care towards the victim who has died. If such breach of duty is established the next question is whether that breach of duty caused the death of the victim. If so, the jury must go on to consider whether that breach of duty should be characterised as gross negligence and therefore as a crime. This will depend on the seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred. The jury will have to consider whether the extent to which the defendant's conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the patient, was such that it should be judged criminal. It is true that to a certain extent this involves an element of circularity, but in this branch of the law I do not believe that is fatal to its being correct as a test of how far conduct must depart from accepted standards to be characterised as criminal. This is necessarily a question of degree and an attempt to specify that degree more closely is I think likely to achieve only a spurious precision. The essence of the matter which is supremely a jury question is whether having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in their judgment to a criminal act or omission.”
[35]The authorities on gross negligence manslaughter also establish the following propositions:(1) The risk must be one of death, not serious injury (see R v Misra; R v Srivastava [2004] EWCA Crim 2375).(2) The Crown must prove the elements necessary to establish civil liability, and, in addition, must satisfy the jury that the negligence or incompetence of the accused went beyond a mere matter of compensation and showed such disregard for the life and safety of others as to amount to a crime against the state and conduct deserving punishment (per Lord Hewart CJ in R v Bateman 19 Cr App R 8at p. 13 approved by Lord McKay in Adomako; see further approved passages in Andrews v DPP [1937] AC 576).(3) A tortfeasor is liable only if the damage sustained was a foreseeable consequence of his actions (per Lord Hobhouse in Reeves v Commissioner of Police for the Metropolis [2000] 1 AC 360’ at p. 393).

Prison officers

[36]Prison officers owe a general common law duty of care towards prisoners in their custody.[37]Prison officers may, in certain circumstances, owe a specific duty to take reasonable care to prevent a prisoner from deliberately taking his own life. These circumstances only arises where the custodian, i.e. the individual prison officer, knows or ought to know that that prisoner presents a suicide risk (see Orange v Chief Constable of West Yorkshire Police [2001] EWCA Civ 611 CA per Latham LJ. at [43]).[38]The necessity for knowledge (actual or constructive) of the risk of suicide as a sine qua non to the existence of the duty is also clear from the judgments of the House of Lords in Reeves (supra). Lord Hope said (at page 380):
“The duty of those who are entrusted with [a prisoner’s] custody is to take reasonable care for his safety while he remains in their hands. If it is known that he may engage in self-mutilation or suicide while he is in their custody, their duty is to take reasonable care to prevent him from engaging in these acts so that he remain free from harm until he is set at liberty. This duty is owed to the prisoner if there is that risk, irrespective of whether he is mentally disordered or of sound mind. It arises simply from the fact that he is being detained by them in custody and is known to be at risk of engaging in self-mutilation or of committing suicide.”
(emphasis added)[39]Thespecific duty may arise whether the suicide risk arises from a mental or psychological disorder, or some other cause (per Lord Hoffmann in Reeves (supra) at pages 368-69).[40]Prison and police authorities do not owe a duty to take special suicide prevention measures in relation to every inmate merely because inmates are at a higher risk of suicide than the population at large (per Latham LJ in Orange at paragraph [44]). Nor do they owe such a duty to all inmates, but only those of whom they know or ought to know represent a particular risk (see above)[41]The facts in Reeves are instructive (and in stark contrast to the present case): the deceased had attempted suicide earlier in the day on which he died. He had been seen by a doctor and identified as a suicide risk. He was being frequently observed and took his own life minutes after a check on him had been made. The police were found liable for his death (with a finding of contributory negligence of 50% on the part of the deceased).[42]It should be noted that the House of Lords in Reeves cited with approval the general principle enunciated by Hart and Honoré that "the free, deliberate and informed act or omission of a human being, intended to exploit the situation created by a defendant, negatives causal connection." (Hart and Honoré, Causation in the Law, 2nd ed. (1985), p. 136). But the House of Lords recognised (as did Hart and Honoré, ibid,at pp. 194-204) that there is an exception to this rule in the case in which the defendant’s duty is to guard against loss caused by the free, deliberate and informed act of a human being (see Lord Hoffman in Reeves (supra) at page 367).

Gross negligence manslaughter causing suicide

[43]Counsel had been unable to find any case in which a criminal court has found that gross negligence causing suicide could amount to gross negligence manslaughter. Nor have their researches unearthed any case in which a verdict of unlawful killing has been returned in any coronial court on that basis.[44]Nevertheless, for the purposes of the hearing before me, Ms McGahey on behalf of the SSJ accepted that gross negligence causing someone to take his own life could, in theory, amount to unlawful killing provided all relevant elements of the offence were present and proved (see below). (The existence of such a potential route to criminal culpability is discussed in a helpful article in the Criminal Law Review, Manslaughter by Causing Another’s Suicide [2006] Crim. L.R. 1035 by Jeremy Horder and Laura McGowan).[45]Mr Leigh on behalf of the Leeds Community Healthcare NHS Trust (the Seventh Interested Party) emphasised the difficulties that untrammelled involvement of the criminal law in this area might engender for healthcare professionals and other custodians (c.f. Rathbone v. Pennine Care NHS Foundation Trust [2012] UKSC 2). In my view, the law should always strive to avoid creating, or contributing to, an unhealthy ‘risk averse’ culture. Foreseeability[46]In the context of unlawful act manslaughter, the steps taken by the victim must be within “the foreseeable range of responses” that a reasonable person in the position of the defendant would have expected the victim to make (R v Mackie [1973] 57 Cr App R 453; R v Corbett [1996] EWCA Crim 1973). Both Mackie and Corbett concerned cases in which the deceased died accidentally while trying to escape an assailant. I accept Ms McGahey’s submission that same principle of foreseeability must apply when the deceased takes his own life. In this regard, I respectfully agree with Sir John Smith QC’s helpful commentary on R v. Dear at [1996] Crim LR 595in which he argues that the principle applies both in the case of accidental death and of suicide.

Elements necessary in the present case

[47]It follows from the above analysis of the authorities, that in order to return a verdict of gross negligence manslaughter in the present case, the jury would have to be satisfied that each of the following five elements was proved to the requisite criminal standard of proof, i.e. beyond reasonable doubt:(1) Duty: A particular prison officer(s) knew, or ought to have known, that KO was at real risk of suicide (and therefore owed KO a duty of care to take reasonable steps to prevent him deliberately taking his own life and a fortiori not to do anything to exacerbate the risks of him committing suicide);(2) Breach: That particular prison officer(s) deliberately spread a rumour in ‘C’ wing that KO was a ‘sex offender’ (and therefore was in breach of his aforesaid duty of care to KO);(3) Foreseeability: It was reasonably foreseeable that the act of that particular prison officer(s) in spreading a rumour that KO was a sex offender would cause or contribute to a decision by KO to commit suicide (or, in other words, KO’s suicide was within the “reasonable range of responses” to the act of spreading of such a rumour);(4) Causation: The act of that particular prison officer(s) in spreading such a rumour that KO was a sex offender did in fact cause or contribute (more than minimally) to KO committing suicide;(5) Gross negligence: The act of that particular prison officer(s) in spreading a rumour that KO was a sex offender went beyond a mere matter of compensation and showed such disregard for the life and safety of others as to amount to a crime against the state and conduct deserving punishment; Deputy Coroner’s misdirection on

Gross negligence manslaughter

[48]In my judgment, the Deputy Coroner misdirected herself as to a key feature of culpability for gross negligence manslaughter, namely the need for proof of each of the above five elements in relation to each particular individual under scrutiny.[49]The Deputy Coroner initially correctly directed herself in accordance with Orange (supra)that the duty exists “where the custodian knows or ought to know that the individual presents a suicide risk”. It appears, however, that she misunderstood the term “custodian” and treated it as allowing generic proof rather than particular proof of knowledge by the particular individual (putative tortfeasor) under scrutiny. She merely asked herself whether “members of staff” (i.e. plural) knew or ought to have known that KO was a suicide risk, and held that there was sufficient evidence in this regard because “a number of officers gave evidence as to their knowledge of [KO’s] ACCT document” and one inmate made reference to “telling a member of staff at night time lock up that [KO] was ‘a bit fragile’”. In doing so, in my judgment, the Deputy Coroner was in error. She failed to appreciate that it is not sufficient in law to show that “a number of officers” knew or ought to have known that KO was a suicide risk. The relevant legal question is whether the putative tortfeasor under scrutiny, i.e. the particular prison officer alleged to be in breach of duty, knew or ought to have known at the time that KO was a suicide risk.[50]Moreover, the Deputy Coroner endorsed a submission by Counsel for the First and Second Interested Parties that “it would be a breach of the duty of care if prison officers were to commit acts which would undermine a deceased’s wellbeing and welfare whilst in custody”. The Deputy Coroner thereby similarly fell into error by not directing herself that proof is required of a breach of the duty of care by the same particular prison officer who was shown to have had or ought to have had the requisite knowledge of suicide risk.[51]The Deputy Coroner’s failure to appreciate the particularity of proof in relation to each individual under scrutiny that is required for gross negligence manslaughter is most clearly apparent from the following passage in her Ruling (at page 45 of the transcript) “In this inquest the duty of care of those entrusted with [KO]’s custody was to take reasonable care for his safety while he remained in their hands. It seems to me, therefore, that if it is established that [KO] killed himself, this was an act which all members of staff, and those members of staff which have been identified at HMP Leeds, were under a duty to take reasonable care and reasonable steps to prevent. Suicide may have been a foreseeable consequence of the alleged failure in duty and may not have occurred if reasonable care had been taken to safeguard [KO].” (emphasis added).[52]Crucially, the Deputy Coroner failed to appreciate that for gross negligence manslaughter proof is required in relation to the same particular individual at each stage of the analysis, i.e. proof that(1) a particular prison officer had the requisite knowledge that KO was a suicide risk,(2) the same prison officer was in breach by spreading a rumour,(3) it was foreseeable that that prison officer’s act would cause or contribute to KO’s suicide,(4) that prison officer’s act did in fact cause or contribute to KO’s suicide and(5) that prison officer’s act showed such disregard for the life and safety of others as to amount to a crime against the state and conduct deserving punishment. The evidence in the present case[53]In my judgment, if the Deputy Coroner had correctly directed herself as the law, she would not have concluded that a verdict of gross negligence manslaughter should be left to the jury on the evidence in this case. On proper analysis, the first, third and fourth elements are not made out on the evidence in relation to any particular individual prison officer and the second element (breach) only in relation to one officer. In these circumstances any case on gross negligence manslaughter will inevitably fail in limine. (1) Duty of care[54]The Deputy Coroner identified three prison officers at HMP Leeds, Adam Kitching, Amanda Whittaker and Bernica Williams (the third, fourth and fifth interested parties), as being potential candidates for having spread a rumour about KO. However, a duty of care on each of their parts to take reasonable care to prevent KO committing suicide arises if, and only if, there is proof beyond reasonable doubt that each of them knew, or ought to have known, that KO was at risk of taking his own life, and that that risk was above that of the general risk of suicide of the prison population. It would not be sufficient that other prison officers knew or ought to have know, or for the jury to think that some members of prison staff knew or ought to have known. Evidence is required that Mr Kitching, Ms Whittaker or Ms Williams themselves knew or ought to have know.[55]In my view, there is little or no such evidence. The following points are germane.First, the ‘existence of duty’ point founders on the simple fact that whilst KO was still in the Healthcare Centre he was released from the ACCT programme, viz.he was no longer considered to be a suicide risk by the very health experts most closely concerned with his welfare and who were charged with monitoring him. In these circumstances, it is difficult to see why ordinary prison officers on ‘C’ wing could or should be said subsequently to have appreciated that he was in fact a suicide risk.[56]Second, the evidence was to the effect that KO seemed to be settled on ‘C‘ wing and did not come to anyone’s attention as being unduly distressed. Moreover, the Healthcare Officer Mr Cockram, who saw KO on a few occasions during association on ‘C’ wing (and who knew him well) said that he was out and about on the wing and appeared to be coping. KO also wrote to his children, promising to write again when they were older. There was nothing in KO’s demeanour to indicate that he was at real or immediate risk of suicide. There was nothing materially to distinguish him from the majority of the prison population in this regard.[57]Third, there is no evidence that Mr Kitching, Ms Whittaker or Ms Williams had, or should have had, the requisite knowledge. Their rosters showed they spent little time on ‘C’ wing during the time KO was there. Their evidence that they had little or no recollection or contact with him was unchallenged. Ms Williams’ statement to police in interview in November 2011 that she thought that KO had been on an ACCT during his time on ‘C’ wing does not amount to evidence that she knew, in September 2007, that KO was at risk of suicide. When asked about this in oral evidence, she said that she had just assumed that KO was on an ACCT because he had come to ‘C ‘wing from the healthcare centre, and she said could not really remember KO at all. (2) Breach[58]The jury would have to be satisfied beyond reasonable doubt that one or more of the three named prison officers had spread rumours to the effect that KO was a sex offender. As regards Mr Kitching, the SSJ accepts there is evidence on which the jury could find that he was responsible for doing so (the evidence of prisoner Metcalfe, which is denied by Mr Kitching). As regards Ms Williams, the evidence against her comes entirely from one prisoner, Phillips, whose evidence was suspect because he initially referred to the officer spreading the rumour as male and, in any event, was evidence which could not be tested because he died in December 2011. As regards Ms Whittaker, the evidence against her came solely from one prisoner, Scott Buchanan, who in the event could not say whether or not he had heard the rumour directly from her or other prisoners. (3)

Foreseeability

[59]There little evidence as to foreseeability of actual suicide as a result of spreading rumours. There was evidence that being labelled a sex offender could make life ‘unbearable’ on ordinary wings in the prison and lead to taunts and assaults on such prisoners; but the normal response was for such prisoner to move, or be moved, to the special wing for ‘vulnerable’ prisoners. There was no evidence of actual suicide having occurred as a result of such bullying. (4) Causation[60]There was little or no evidence that KO committed suicide because of any rumours that he was a ‘sex offender’. He left no suicide note. He did not confide in anyone that he was contemplating suicide. He merely told another inmate, Phillips, that he was ‘scared’ of people in prison. He had plenty of reasons for being troubled and depressed, namely the trauma of, and sequelae to, his killing his wife in front of his children, being charged with murder and the prospect of a life of incarceration in a foreign prison without ever seeing his children again. Any or all of these factors could have caused or contributed to KO taking his own life. Absent cogent evidence, a jury would only be speculating as to the reasons why he took his own life. It would be impossible for the jury to find, beyond reasonable doubt, that bullying caused by the spreading of a rumour by a particular prison officer or officers was a cause or contributing factor to his death. (5) Gross negligence[61]It is accepted that the assessment of conduct as ‘grossly negligent’ is supremely a jury question (see Lord Mackay in Adomako (supra)). Summary on gross negligence manslaughter question[62]For the above reasons, in my judgment, the Deputy Coroner misdirected herself and erred in deciding that a verdict of unlawful killing by gross negligence manslaughter could go forward to the jury. There is no evidence in relation to a specific prison officer covering each of the five elements upon which the coronial jury, properly directed, could properly bring forward a requisite verdict of unlawful killing by reason of by gross negligence manslaughter in this case. In any event, if the question was asked whether such a verdict would be safe, the answer in my view would be ‘No’ (c.f. Bennett (supra). Further, in so far as is necessary, I find that the Coroner’s decision was Wednesbury unreasonable.[63]Finally, in fairness to the Deputy Coroner with whose conclusions I have differed, I should like to add she was faced with determining novel issues of significant complexity at short notice in a complex and lengthy inquest. Result[64]In the result, for the above reasons, I make the following orders:(1) An order quashing the decision of the Deputy Coroner made on 28 May 2012 to leave a verdict of unlawful killing to the jury on the basis of murder.(2) An order quashing the decision of the Deputy Coroner made on 28 May 2012 to leave a verdict of unlawful killing to the jury on the basis of manslaughter by gross negligence. Postcript[65]I am grateful to all Counsel and advocates and their legal teams for their considerable assistance in this matter.

Cited in 10 later judgments

and 1 more case