Devon & Cornwall Police v HM Coroner for Plymouth, Torbay and South Devon & Ors [2013] EWHC 3729 (Admin)

Case No CO/3493/2013[2013] EWHC 3729 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 27/11/2013
Before
THE HONOURABLE MR JUSTICE STUART-SMITH
Between
Chief Constable of Devon and Cornwall PoliceClaimantHM Coroner for Plymouth, Torbay and South DevonDefendant(4) Independent Police Complaints CommissionInterested Parties
Francesca Whitelaw (instructed by Devon and Cornwall Police Legal Department) for ClaimantChristopher Hough (instructed by Wiseman Lee) for 1st Interested PartyKatie Scott (instructed by Foot Anstey) for 2 nd Interested PartyDominic Kay (instructed by Weightmans LLP) for 3 rd Interested PartyHearing Hearing dates: 26 November 2013
Judgment

Introduction

[1]This judgment follows a rolled up hearing of the Claimant’s application for Judicial Review of a decision by the Defendant to ask a particular question of the jury sitting on an inquest touching the deaths of Oisin Twomey and Marek Wojciechowski. The proceedings were issued on 20 November 2013. That same day Phillips J directed that the Claimant’s application for permission should be adjourned to an oral hearing to be heard today. Subsequently, I directed that the hearing should be a rolled up hearing. The urgency arises from the fact that the inquest is currently part heard and that delay may of itself lead to the necessary discharge of the jury and the need for the parties to undergo the trauma of a second inquest, which is to be avoided if possible. The Defendant has indicated that he takes a neutral position on this application and he has made no other submissions to the Court.[2]In order to put the challenged decision into sensible context, it is necessary to rehearse the factual background, which is largely uncontroversial.

The Factual Background

[3]No words can do justice to the horror of what happened in the afternoon of 6 July 2012 at Hamelin Way in Torquay, when a collision between two cars shattered the lives of two families. Mrs Wojciechowska lost her husband. Mrs Twomey lost her husband, her son and her unborn babe. Their grief is hard to comprehend. The inquest must necessarily be both traumatic and intensely important for each of them.[4]I adopt the summary of the facts set out in the Statement of Facts:
“At about 2.12pm on Friday 6th July 2012, Devon and Cornwall Police (“the Police”) received a telephone call reporting that Mr Marek Wojciechoski had left his home address in his vehicle, a black Vauxhall Vectra, approximately 30 minutes earlier, leaving a note stating that he was ‘sorry’ and was ‘going to end it’. This note was written in Polish and the call was made by a friend of Mr Wojciechowski’s wife, as his wife spoke very little English. The call was graded by the police as requiring an immediate response and Mr Wojciechowski was categorised as a high risk missing person. The police control room asked over the police radio system that units look for the Vauxhall Vectra and gave authority for a stop check if the vehicle was seen. At 2.43pm, PC Ben Bickford reported to the control room that he had sighted a black Vectra but that he had not been able to check the registration. PC Bickford activated his emergency equipment in order to progress towards the Vectra so that he could identify it. At 2.45pm PC Bickford informed the control room operator that he had caught the vehicle up but that he had not yet attempted to stop the vehicle. PC Bickford was then able to reach a distance from the Vectra at which he was able to attempt to stop the vehicle. He flashed his headlights four times, and gave a hand signal to indicate that the Vectra should pull over. The Vectra initially appeared to slow but then suddenly accelerated and drove onto the other side of the carriageway and into a head-on collision with a Volkswagen Golf. At 2.47pm PC Bickford reported to the control room that the Vauxhall Vectra had collided with another vehicle. The Volkswagen Golf was carrying three occupants of the same family. Oisin Twomey, a 16-month old boy, died at the scene. His father, Mr Connie Twomey, was seriously injured and subsequently died from his injuries in 2013. Mrs Elber Twomey was 24-weeks pregnant at the time of the collision: the unborn baby did not survive. Mr Wojciechowski died after being taken to hospital. ”
[5]The inquest into the deaths of Oisin Twomey and Marek Wojciechowski commenced on 18 November 2013. The inquest into the death of Mr Twomey will be held in Ireland, as he had returned there before dying of his injuries. In advance of the opening of the present inquest the Coroner indicated that he would be conducting a wide-ranging enquiry. He was provided with the Claimant’s procedures for dealing with vulnerable persons in such circumstances and also with the report of the IPCC into the events of 6 July 2012. He decided that the documents relating to the Claimant’s procedures should not be disclosed to interested parties. Over the course of two days 10 witnesses gave oral evidence and the evidence of 18 others was read.[6]The witnesses who gave oral evidence included PC Bickford and Chief Superintendant Nye. Chief Superintendant Nye gave evidence that control room staff were trained in managing risk, that the police had procedures for dealing with vulnerable persons in control of motor cars and how they should be approached and (if appropriate) caused to stop, and that PC Bickford had acted in accordance with those procedures. He was questioned about the training that was given and that questioning established that the Police did not have procedures specifically directed to dealing with suicidal motorists. It was also established that no advice had been taken from psychiatrists or others about what procedures would be appropriate for suicide risks or whether such procedures would or might differ from those being implemented by the Police already. PC Bickford was cross examined on the basis that he could have approached the Vectra without turning on his lights and sirens and accepted that he could have done so.[7]The hearing before the Court has proceeded on the basis that there was a causative link between PC Bickford approaching the Vectra with his lights and sirens on and the change in the driving of the Vectra which saw Mr Wojciechowski accelerate and drive into the path of the Twomey’s oncoming car. It is, however, accepted that a causative link is not the central concern for this application. The central concern, for reasons that will appear, is whether there was evidence that the lack of a procedure directed to suicide risk motorists involved a systemic failure on the part of the Claimant. On that point, although the evidence established the absence of any specific procedure, there was no evidence adduced about what would have been an appropriate procedure for suicide risk motorists. Specifically, there was no evidence that the Claimant’s current procedures for dealing with vulnerable persons generally were deficient or not reasonably applicable in the case of suicide risk motorists. Doubtless because of the absence of such evidence, Counsel were constrained in the case that they could put in cross-examination, so that the witnesses were not asked to address any direct suggestion that the current procedures were deficient or any suggestion based upon evidence about how they could or should be improved.[8]With the evidence in this state, the Coroner decided to ask the Jury a number of questions. Questions 1-8 are non-controversial, but question 9 has provoked these proceedings. It is in the following terms:
“Was there any defect or defects in the State organisations that day which contributed to the death? If there were no defects, please state “none” ”
In the course of the present hearing a consensus emerged that, if it was to be asked, Question 9 should be amended to include words to the effect that “If there was a defect or defects in the State organisations that day which contributed to the death, what was it or were they?” This amendment does not affect the principle of whether the question should be asked at all.[9]The Coroner gave his reasons for asking Question 9 in writing. They were as follows:
“WRITTEN DECISION BY H.M. CORONER I.M. ARROW IN RESPECT OF “SHOULD I PUT QUESTION 9 TO THE JURY OR NOT”
This Inquest involves the death of two individuals. The deaths follow a two vehicle collision. On the evidence thus far one vehicle had a Police car behind it. The driver of the car, on the balance of probability, noticed a request by the Police driver to stop. There was therefore in my view the involvement of a Police Officer. I am therefore required to sit with a Jury. If I sat alone I can ask myself questions. I am not sitting alone. It is clear at least one family has concerns as to the conduct of the Police Officer at the incident. I am satisfied an important function of an Inquest is to allay fears and suspicions. As in a Jury Inquest the Jury is to be the arbiter of facts, it is important the matters are raised before the Jury, in simple terms for them to consider. I refer in particular to Lord Bingham in the case of Amin I paraphrase: Article 2 of the European of Convention of Human Rights requires among other things that there is an effective inquiry which will include a sufficient element of public scrutiny in order to ensure practical as well as theoretical public accountability for deaths occurring under the States responsibility. Openness and transparency are particularly important. The purpose is to ensure so far as possible that the full facts are brought to light, that culpable and discreditable conduct is exposed and brought to public notice, that suspicion of deliberate wrong doing (if unjustified) is allayed, that dangerous practices and procedures are rectified. That those who have lost their relatives may at least have the satisfaction of knowing the lessons learned from his death may save the lives of others. I have a very wide discretion as to the questions to be put. I am in the habit of preparing simple questions for the Jury. I have done so for several years. It appears the most efficient way to raise the matters for their consideration. I am asked by the family of one of the bereaved to ask question 9, I am asked by the Insurer of another to ask the question. I am asked by the representative of Devon & Cornwall Police not to ask the question. I consider question 9 an appropriate question to raise for the Jury where there are concerns raised by the family. The Jury thereby publicly and transparently considers whether or not there has been any state action which has contributed to the death of one or more individuals. It also gives the Jury an opportunity to consider and indicate there was no breach. For that reason I shall leave the second part of question 9 so as to elicit such clarification.” Article 2 of the European of Convention of Human Rights requires among other things that there is an effective inquiry which will include a sufficient element of public scrutiny in order to ensure practical as well as theoretical public accountability for deaths occurring under the States responsibility. Openness and transparency are particularly important. The purpose is to ensure so far as possible that the full facts are brought to light, that culpable and discreditable conduct is exposed and brought to public notice, that suspicion of deliberate wrong doing (if unjustified) is allayed, that dangerous practices and procedures are rectified. That those who have lost their relatives may at least have the satisfaction of knowing the lessons learned from his death may save the lives of others.

The Legal Framework

[10]The statutory framework is provided by Section 5 of the Coroners and

Justice Act 2009 (“the 2009 Act”) which, so far as material provides:

“5. Matters to be ascertained (1) The purpose of an investigation under this Part into a person's death is to ascertain— (a) who the deceased was; (b) how, when and where the deceased came by his or her death; (c) the particulars (if any) required by the 1953 Act to be registered concerning the death. (2) Where necessary in order to avoid a breach of any Convention rights (within the meaning of the Human Rights Act 1998 (c. 42)), the purpose mentioned in subsection (1)(b) is to be read as including the purpose of ascertaining in what circumstances the deceased came by his or her death. (3) Neither the senior coroner conducting an investigation under this Part into a person's death nor the jury (if there is one) may express any opinion on any matter other than— (a) the questions mentioned in subsection (1)(a) and (b) (read with subsection (2) where applicable); (b) the particulars mentioned in subsection (1)(c). This is subject to paragraph 7 of Schedule 5. ”
This is subject to paragraph 7 of Schedule 5. ”[11]Section 10(2) of the 2009 Act provides:
“10… (2) A determination under subsection (1)(a) may not be framed in such a way as to appear to determine any question of— (a) criminal liability on the part of a named person, or (b) civil liability. …”
[12]Paragraph 7(1) of Schedule 5 to the Act provides:
“Action to prevent other deaths 7(1)Where— (a) a senior coroner has been conducting an investigation under this Part into a person's death, (b) anything revealed by the investigation gives rise to a concern that circumstances creating a risk of other deaths will occur, or will continue to exist, in the future, and (c) in the coroner's opinion, action should be taken to prevent the occurrence or continuation of such circumstances, or to eliminate or reduce the risk of death created by such circumstances, the coroner must report the matter to a person who the coroner believes may have power to take such action. ”
[13]It is immediately to be noted that s. 5(2) and the mandatory terms of paragraph 7(1) of Schedule 5 are direct statutory responses to the need for the State to comply with its obligations under Article 2 of the ECHR as enacted by the Human Rights Act. The substantive requirement of Article 2 is that States are required “not to take life without justification and also to establish a framework of laws, precautions, procedures and means of enforcement which will, to the greatest extent reasonably practicable, protect life: See R (Middleton) v West Somerset Coroner [2004] 2 AC 182 at [2]. In R v Mid and North Shropshire Coroner, ex p. Lewis [2010] 1 WLR 1836 at [39] Etherton LJ noted the change that had been effected when paragraph 7(1) had superseded rule 43 of the Coroners Rules 1984 and said “it is doubtless with a view to the Article 2 obligation that the permissive language of rule 43 has been changed into one of obligation in paragraph 7….” I respectfully endorse that observation.[14]The obligation to hold an Article 2 investigation arises where there are grounds for suspecting that a death may involve breach by the State of one of the substantive obligations imposed by Article 2: see R v Secretary of State for Defence and anor. Ex parte Smith [2010] UKSC 29 per Lord Phillips at [70, 84]. At [210] of Smith Lord Mance identified categories of case in which the substantive right contained in Article 2 may potentially be engaged, with the result that the procedural obligation to hold an Article 2 investigation may arise. His fifth, and residual, category was “other situations where the State has a positive substantive obligation to take steps to safeguard life i.e. not only where the right to life is inherently at risk … but where the State is on notice of a specific threat to someone’s life against which protective steps should be taken.” In R v Chief Constable of Hertfordshire Police, Ex parte Van Colle [2008] UKHL 50 the House of Lords clarified that Article 2 may be invoked where there has been a systemic failure by member states to enact laws or provide procedures reasonably needed to protect the right to life, and also where, although there has been no systemic failure of that kind “a real and immediate risk to life is demonstrated and individual agents of the state have reprehensibly failed to exercise the powers available to them for the purpose of protecting life.”: see Lord Bingham at [31]. The threshold for “real and immediate risk to life” is high and not readily satisfied: see Lord Hope at [66]. As always, the court should avoid judging acts or omissions with the benefit of hindsight.[15]It was common ground at the present hearing that Article 2 is capable of being engaged in the circumstances of policing and, specifically, policing the use of the roads by drivers and others.[16]English inquests fall into two categories, commonly referred to as Jamieson inquests and Middleton inquests. It is not necessary in this judgment to rehearse the detailed jurisprudence at the highest level of authority which now surrounds the distinction between the different types of inquest, but certain points may be noted: i) Coroners have a wide degree of discretion about the scope of the enquiries that they make or permit in the course of hearing an inquest of either kind. What will differ is the form of verdict that may be reached at the end, which is a direct result of the application of s. 5(1) and, where Article 2 is engaged, 5(2) of the 1989 Act: see Smith at [78] per Lord Phillips and [152] per Lord Mance. The position is neatly summarised by Lord Mance at [208] of Smith:
“Everyone agrees that coroners have a considerable discretion as to the scope of their enquiry, although the verdict that they may deliver differs according to the type of inquest being held.” ii) The Article 2 substantive duty will be breached where the State fails to take steps that it should have taken. It is not shown to have been breached simply because an act or omission by an agent of the state is shown to have caused or contributed to a death; iii) It was accepted by Mr Christopher Hough, who appears for Mrs Twomey, and Mr Kay, who appears for the insurers of Mr Wojciechowski, that if there was no evidence that a suicide risk assessment or procedure would or should be different from the procedures that were in place and implemented, there would be no basis for asking question 9. Ms Scott, who appeared for Mrs Wojciechowska, was not asked to confirm her agreement to this proposition but did not argue against it. For my part, although I am not aware of authority directly in point on the proposition, I am confident that its acceptance by Mr Hough and Mr Kay is correct. Procedure in Coroner’s courts should be evidence based and there can be no justification for asking a Jury to make a finding for which there is no evidence. The harm that could ensue if juries are asked to speculate without any evidence to support their speculation is obvious. This is not in any way a criticism of the diligence with which a jury approaches its task: it is simply that, if there is no material upon the basis of which a jury can answer a question, asking them to do so presents them with an impossible task; iv) This does not mean that matters of concern about which there is no evidence cannot be addressed in an Article 2 compliant way. The coroner’s duty to report (now under paragraph 7(1) of Schedule 5) is an integral part of the procedure that satisfies the requirements of Article 2: see Lewis at 1837a (the headnote) and [37-39]. It is to be noted that the obligation arises whenever there is a “concern that circumstances creating a risk of other deaths will occur, or will continue to exist, in the future.”
It is not necessary for the inquest to have disclosed that the circumstances giving rise to concern have in fact caused or contributed to a death already, or that the circumstances giving rise to the concern have been shown to involve a breach by the State of its Article 2 obligations (or by any person of their obligations, though not arising under Article 2).

Discussion

[17]It is possible to conceive of circumstances where the coroner may reasonably decide before opening the inquest that there are grounds for suspecting that a death may involve breach by the State of one of its substantive obligations so that Article 2 is at least potentially engaged, but where the evidence at the inquest does not provide any support for that suspicion. The Claimant submits that there never were grounds for suspecting that Article 2 would be engaged; but his primary argument is that, by the conclusion of the evidence, it was apparent that Article 2 was not engaged in relation to the involvement of the police and its procedures. In support of this submission the Claimant advances detailed arguments, which are set out at [29-36] of the Statement of Facts and Grounds and [18-20] of the skeleton argument. In briefest summary, the Claimant submits that the accident happened within such a short time frame that there was no occasion for the Police to know of the existence of a threat to the life of those in Mr Twomey’s car and could not reasonably have anticipated how Mr Wojciechowski would react to the approach of the police car being driven by PC Bickford. PC Bickford’s conduct was in accordance with his training and so, submits the Claimant, there is no question of a breach of substantive obligations under Article 2.[18]In response, the interested parties point to the clear evidence that PC Bickford’s arrival behind the Vectra seems to have triggered the catastrophic change in Mr Wojciechowski’s driving. They put at the forefront of their submissions the absence of a policy specifically directed to dealing with suicide risk motorists, pointing to the fact that there were or may have been other options open to the police for intervening or otherwise dealing with the problems posed by Mr Wojciechowski’s driving. They submit that suicide risks may behave unpredictably, which is undoubtedly true, and that the failure either to take advice on whether or not different procedures should be put in place or to put such procedures in place is, or could be determined by the jury to be, a breach of the Police’s substantive Article 2 obligations.[19]On the information presented to the Court, there has been no evidence adduced at the inquest which could properly support a finding that the failure to have a procedure specifically designed for dealing with suicide risks is a breach of the Police’s Article 2 obligations. The evidence is that suicide risks are included within the Police’s existing policies, along with other groups such as drug users. What is completely lacking is any evidence to suggest that suicide risk motorists should be treated differently from other groups, or that the procedures that the Police had in place were inappropriate for dealing with suicide risks. Therefore, although the evidence supports the conclusion that PC Bickford’s intervention contributed to the catastrophic unfolding of events, there is no evidence to suggest that the procedures that he and the Police generally were following were inappropriate. It is not sufficient simply to assert that suicide risks may behave unpredictably: the same is true of drug users and other vulnerable groups. The assertion therefore has no probative significance in support of a suggestion that the conduct and procedures of the police were deficient so as to be in breach of their Article 2 substantive obligations. Nor is it sufficient to justify the asking of question 9 to point to the fact that during the inquest questions were asked about procedures. Because of the constraints imposed by lack of evidence about whether other procedures would have been better or whether the existing procedures were defective (both of which would have to be the subject of suitably informed evidence) the questioning was unable to go further than to establish the absence of a suicide risk procedure and that other options for the management of this incident may have been available. It could not and did not address the questions whether there should have been a separate procedure for suicide risks or whether other options should have been adopted.[20]I am clear in my view that, if something as complex as procedures for dealing with particular groups of vulnerable people are to be criticised, the criticism must in all fairness be based upon evidence and cannot be left to the well intentioned but necessarily speculative and uninformed views of a jury in the absence of relevant evidence. If proof of this were needed, it is to be found in the fact that one of the matters raised at the inquest was whether or not the Claimant had obtained specialist psychiatric advice on how to deal with suicide risks. He had not; but there is no knowing what such advice would have been and whether it would or even might have led to the establishment of different procedures.[21]The interested parties took a preliminary point that permission should not be given because it is only in exceptional cases that the Court should intervene in inquests that are still proceeding: see R v HM Coroner for Wiltshire & Swindon, ex parte Craik [2004] EWHC 2653 (Admin). While the principle is not in doubt, I consider this to be an exceptional case for three main reasons. First, the expedited procedure that has been adopted means that the inquest can proceed to its conclusion with the existing jury, thereby avoiding the possibility that the parties might have to go through another inquest at a later date. Second, in the course of the rolled up hearing I have come to the clear conclusion that question 9 cannot lawfully be put and, the issue having been raised, it is right that I should rule on it so as to prevent error in the further conduct of the inquest. Third, I am and remain concerned at the prospect that the jury would otherwise be asked to make findings that could have a substantial negative impact on PC Bickford in particular when, on the information available to me, he has had no proper opportunity to deal in evidence with the criticisms that would inevitably arise if the jury were to answer question 9 affirmatively.[22]As an additional reason for taking the exceptional course of granting permission during the currency of the inquest, Ms Whitelaw submitted that the Claimant had good reasons for bringing the application when he did rather than earlier. She submits that the Coroner was asked to rule on the scope of the inquest at the outset and failed to do so, with the result that there was no relevant decision to challenge until it became apparent that he had decided to submit question 9 to the Jury. Whether or not the Coroner made a formal ruling about the scope of the inquest at the outset, he had made it known that the question of police procedures would be within the scope of the evidential enquiries, which is why Chief Superintendant Nye attended to give evidence. However, I would not criticise the Claimant for not issuing proceedings earlier. As I have said, the Coroner has a broad discretion about the width of the evidential enquiry that he will undertake or permit others to pursue. It is only when the inquest approaches the question of verdicts that the question of scope is likely to be critical: see the references in Smith cited above.[23]For these reasons, which I have expressed shortly given the urgency of the application, I conclude that there is no basis upon which question 9 can properly be left to the jury. In those circumstances I grant permission and quash the decision of the Defendant to do so.[24]That does not mean that the question of the absence of procedures for dealing with suicide risks is to be swept under the carpet. The future conduct of the inquest is for the Coroner and nothing I say about it is binding upon him. He will be fully aware that, if he has concerns, his obligation to report pursuant to paragraph 7(1) of Schedule 5 is an integral part of the Article 2 compliant procedure and will (or should) ensure that proper consideration is given to the question for the future. It will also, on my understanding, be open to him to include in his summing up to the jury a direction explaining why the question of police procedures is not being left to them, in accordance with this judgment and (if he thinks appropriate) that it is a matter which he may address in his report. The Court has been told that the inquest has attracted both local and national media attention, and such a direction given in the full light of publicity should allay any reasonable concern on the part of the interested parties or the Coroner himself, that the issue is not being treated transparently and seriously.[25]For completeness, I record that Ms Whitelaw submitted that the Coroner’s decision to put question 9 should be quashed because his written reasons were legally flawed in failing to address properly the question whether Article 2 was or was potentially engaged. I see considerable force in the criticisms that are made, but Ms Whitelaw at the hearing realistically accepted that the Court should look to the substance of the question whether question 9 was a proper question rather than to the reasons given by the Coroner in explaining his decision to put it to the Jury. Having done so, I do not find it necessary to rule on this additional submission and I do not do so.[26]Ms Whitelaw also made submissions on the application of the Galbraith standard of proof when applied to substantive breaches of the Article 2 obligations. Since I have based my decision on the complete absence of evidence justifying any finding that there had been a breach of the Article 2 obligations, it is not necessary for me to rule on this submission and I do not do so.

Cited in 1 later judgment