[2004] UKHL 10

House of Lords
[2004] UKHL 10
Before
Lord Bingham of CornhillLord Hope of CraigheadLord Walker of GestingthorpeBaroness Hale of RichmondLord CarswellDate 11 March 2004
[2]The European Court of Human Rights has repeatedly interpreted article 2 of the European Convention as imposing on member states substantive obligations 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, for example, LCB v United Kingdom (1998) 27 EHRR 212, para 36; Osman v United Kingdom (1998) 29 EHRR 245; Powell v United Kingdom (App No 45305/99, unreported 4 May 2000), 16-17; Keenan v United Kingdom (2001) 33 EHRR 913, paras 88-90; Edwards v United Kingdom (2002) 35 EHRR 487, para 54; Calvelli and Ciglio v Italy (App No 32967/96, unreported, 17 January 2002); Öneryildiz v Turkey (App No 48939/99, unreported, 18 June 2002).[3]The European Court has also interpreted article 2 as imposing on member states a procedural obligation to initiate an effective public investigation by an independent official body into any death occurring in circumstances in which it appears that one or other of the foregoing substantive obligations has been, or may have been, violated and it appears that agents of the state are, or may be, in some way implicated. See, for example, Taylor v United Kingdom (1994) 79-A DR 127, 137; McCann v United Kingdom (1995) 21 EHRR 97, para 161; Powell v United Kingdom, supra p 17; Salman v Turkey (2000) 34 EHRR 425, para 104; Sieminska v Poland (App No 37602/97, unreported, 29 March 2001); Jordan v United Kingdom (2001) 37 EHRR 52, para 105; Edwards v United Kingdom, supra, para 69; Ö neryildiz v Turkey, supra, paras 90-91; Mastromatteo v Italy (App No 37703/97, unreported, 24 October 2002).[4]The scope of the state's substantive obligations has been the subject of previous decisions such as Osman and Keenan but is not in issue in this appeal. Nor does any issue arise about participation in the official investigation by the family or next of kin of the deceased, as recently considered by the House in R (Amin) v Secretary of State for the Home Department [2003] UKHL 51, [2003] 3 WLR 1169. The issue here concerns not the conduct of the investigation itself but its culmination. It is, or may be, necessary to consider three questions.(1) What, if anything, does the Convention require (by way of verdict, judgment, findings or recommendations) of a properly conducted official investigation into a death involving, or possibly involving, a violation of article 2?(2) Does the regime for holding inquests established by the Coroners Act 1988 and the Coroners Rules 1984 (SI 1984/552), as hitherto understood and followed in England and Wales, meet those requirements of the Convention?(3) If not, can the current regime governing the conduct of inquests in England and Wales be revised so as to do so, and if so how?[5]Before turning to consider these questions it should be observed that they are very important questions. Compliance with the substantive obligations referred to above must rank among the highest priorities of a modern democratic state governed by the rule of law. Any violation or potential violation must be treated with great seriousness. In the context of this appeal the questions have a particular importance also. For, as the facts summarised in paragraphs 39-43 below make clear, the appeal concerns an inquest into the suicide, in prison, of a serving prisoner. Unhappily, this is not a rare event. The statistics given in recent publications, (notably "Suicide is Everyone's Concern, A Thematic Review by HM Chief Inspector of Prisons for England and Wales" (May 1999), the Annual Report of HM Chief Inspector of Prisons for England and Wales 2002-2003, and Evidence given to the House of Lords and House of Commons Joint Committee on Human Rights (HL Paper 12, HC 134, January 2004) make grim reading. While the suicide rate among the population as a whole is falling, the rate among prisoners is rising. In the 14 years 1990-2003 there were 947 self-inflicted deaths in prison, 177 of which were of detainees aged 21 or under. Currently, almost two people kill themselves in prison each week. Over a third have been convicted of no offence. One in five is a woman (a proportion far in excess of the female prison population). One in five deaths occurs in a prison hospital or segregation unit. 40% of self-inflicted deaths occur within the first month of custody. It must of course be remembered that many of those in prison are vulnerable, inadequate or mentally disturbed; many have drug problems; and imprisonment is inevitably, for some, a very traumatic experience. These statistics, grim though they are, do not of themselves point towards any dereliction of duty on the part of the authorities (which have given much attention to the problem) or any individual official. But they do highlight the need for an investigative regime which will not only expose any past violation of the state's substantive obligations already referred to but also, within the bounds of what is practicable, promote measures to prevent or minimise the risk of future violations. The death of any person involuntarily in the custody of the state, otherwise than from natural causes, can never be other than a ground for concern. This appeal is concerned with the death of a long-term convicted prisoner but the same principles must apply to the death of any person in the custody of the prison service or the police.[6]Question (1) What, if anything, does the Convention require (by way of verdict, judgment, findings or recommendations) of a properly conducted official investigation into a death involving, or possibly involving, a violation of article 2?[7]The European Court has never expressly ruled what the final product of an official investigation, to satisfy the procedural obligation imposed by article 2 of the Convention, should be. This is because the Court applies principles and does not lay down rules, because the Court pays close attention to the facts of the case before it and because it recognises that different member states seek to discharge their Convention obligations through differing institutions and procedures. In this appeal the Committee heard oral submissions on behalf of the Secretary of State, HM Coroner for the Western District of Somerset and Mrs Jean Middleton, and received written submissions on behalf of the Coroners' Society of England and Wales, the Northern Ireland Human Rights Commission and Inquest. It was not suggested that the express terms of the Convention or any ruling of the Court provide a clear answer to this first question before the House.[8]The Court has recognised (in McCann v United Kingdom, para 146) that its approach to the interpretation of article 2 "must be guided by the fact that the object and purpose of the Convention as an instrument for the protection of individual human beings requires that its provisions be interpreted and applied so as to make its safeguards practical and effective." Thus if an official investigation is to meet the state's procedural obligation under article 2 the prescribed procedure must work in practice and must fulfil the purpose for which the investigation is established.[9]What is the purpose for which the official investigation is established? The decided cases assist in answering that question. In Keenan v United Kingdom , which concerned a prisoner who had committed suicide, the article 2 argument was directed to the state's performance of its substantive, not its procedural, obligation. The Court did, however, note the limited scope of an inquest in England and Wales (paragraphs 75-78), which was relevant to the applicant's complaint under article 13 that national law afforded her no effective remedy. In the context of that complaint the Government agreed (paragraph 121) "that the inquest, which did not permit the determination of issues of liability, did not furnish the applicant with the possibility of establishing the responsibility of the prison authorities or obtaining damages." In paragraph 122 the Court, still with reference to this complaint, ruled:
"Given the fundamental importance of the right to the protection of life, Article 13 requires, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible for the deprivation of life . . ."
On the facts, the Court held (paragraph 131) that a civil action in damages would not have afforded the applicant an effective remedy which would have established where responsibility lay for the death of the deceased.[10]Jordan v United Kingdom arose from the fatal shooting of a young man by a police officer in Northern Ireland. The Court found a violation of article 2 in respect of failings in the investigative procedures concerning the death. The Court held:
"105 The obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State's general duty under Article 1 of the Convention to 'secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention', also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force. The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. What form of investigation will achieve those purposes may vary in different circumstances. However, whatever mode is employed, the authorities must act of their own motion, once the matter has come to their attention. They cannot leave it to the initiative of the next-of-kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures . . . 107 The investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances and to the identification and punishment of those responsible. This is not an obligation of result, but of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including inter alia eye witness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death. Any deficiency in the investigation which undermines its ability to establish the cause of death or the person or persons responsible will risk falling foul of this standard."
There was argument whether the inquest, which had been opened but not concluded, would satisfy the state's investigative obligation, but the Court concluded that, on the facts of this case, it would not: "128 It is also alleged that the inquest in this case is restricted in the scope of its examination. According to the case law of the national courts, the procedure is a fact-finding exercise and not a method of apportioning guilt. The Coroner is required to confine his investigation to the matters directly causative of the death and not to extend his inquiry into the broader circumstances. This was the standard applicable in the McCann inquest also and did not prevent examination of those aspects of the planning and conduct of the operation relevant to the killings of the three IRA suspects. The Court is not per[11]The killing in Edwards v United Kingdom was of a prisoner by another prisoner with whom he shared a cell. The killer was charged with murder but his plea of guilty to manslaughter by reason of diminished responsibility was accepted, and there was accordingly no investigation in the criminal trial of how the two men came to be sharing a cell. This, not surprisingly, was a feature of the case which greatly concerned the family of the deceased. In paragraph 69 of its judgment, the Court described the purpose of the investigation required by article 2 in exactly the same terms as it had used in paragraph 105 of its judgment in Jordan , quoted above. A violation was found.[12]In Mastromatteo v Italy the deceased had been killed by a group of criminals, some of whom were on leave of absence from prison and one of whom had absconded from prison. A complaint that the state had violated its substantive obligation under article 2 was rejected (paragraph 79). So too was a complaint that the state's procedural obligation had been violated (paragraph 96). This complaint was primarily directed to the possibility of obtaining compensation (paragraphs 80-82), but the Court, while finding (paragraph 92) that there was a procedural obligation to determine the circumstances of the death, found the obligation to be met by the trial and conviction of two of the murderers and the making of a compensation order.[13]Basing themselves primarily on Keenan, Jordan and Edwards , the parties made competing submissions on what the procedural investigative obligation under article 2 requires. For the Secretary of State, it was argued that what is required, where the obligation arises, is a full, thorough, independent and public investigation of the facts surrounding and leading to the death but not necessarily culminating in any decision on whether the state or any individual is responsible. The duty is to investigate, no more. If the investigation yields evidence of delinquency on the part of the state or its agents, then the victim must have a remedy. But that is a requirement of article 13, not of the procedural obligation under article 2. Counsel for Mrs Middleton challenged this approach. If an investigation is to ensure the accountability of state agents or bodies for deaths occurring under their responsibility ( Jordan , paragraph 105) and be capable of leading to a determination of whether the force used had been justified ( Jordan , paragraph 107) and to establish the cause of death or the person or persons responsible ( Jordan , paragraph 107), then it must culminate in a finding which, while it need not convict any person of crime nor constitute an enforceable civil judgment against any party, must express the fact-finding body's judgment on the cardinal issues concerning the death.[14]In choosing between these submissions assistance is gained by comparing the Court's decisions in McCann and Jordan . McCann arose from the fatal shooting by soldiers of three people, believed to be terrorists, in Gibraltar. A lengthy and detailed inquest was held, also in Gibraltar, when much evidence was heard. It was clear from the outset when and where the deceased had died, and that they had been shot by the soldiers. The central question was whether the soldiers had been justified in shooting and killing the deceased. On this issue the coroner directed the jury in some detail, giving illustrations of conduct which would amount to unlawful killing, and leaving to the jury three verdicts which he regarded as reasonably open to them (paragraph 120): these were unlawful killing (unlawful homicide), lawful killing (justifiable reasonable homicide) or an open verdict. The jury could thus indicate, by returning an open verdict, their inability to decide or, by choosing one or other of the remaining verdicts, express their judgment on the central, and very important, issue. Although criticism was made of the adequacy of the inquest proceedings as an investigative mechanism, the Court concluded that the alleged shortcomings in the proceedings had not substantially hampered the carrying out of a thorough, impartial and careful examination of the circumstances surrounding the killings (paragraph 163). The inquest could not, of course, have culminated in an award of compensation.[15]In Jordan , to which reference is made in paragraph 10 above, the central issue was very much the same but a different result was reached. One of the reasons for this was that the jury were only permitted in their verdict to give the identity of the deceased and the date, place and cause of death and not, as in England, Wales and Gibraltar, to return any one of several verdicts including "unlawful death". A verdict in the permitted form would not, the Court held, operate to trigger criminal prosecution. In a situation where the Director of Public Prosecutions of Northern Ireland had decided not to prosecute, with no reasons given, and with no effective means of requiring reasons to be given (paragraph 122), the Court regarded the inquest as inadequate to investigate the possible breach of the state's substantive obligation under article 2.[16]It seems safe to infer that the state's procedural obligation to investigate is unlikely to be met if it is plausibly alleged that agents of the state have used lethal force without justification, if an effectively unchallengeable decision has been taken not to prosecute and if the fact-finding body cannot express its conclusion on whether unjustifiable force has been used or not, so as to prompt reconsideration of the decision not to prosecute. Where, in such a case, an inquest is the instrument by which the state seeks to discharge its investigative obligation, it seems that an explicit statement, however brief, of the jury's conclusion on the central issue is required.[17]Does that requirement apply only to the very limited category of cases just defined, or does it apply to other cases as well? The decision in Keenan shows that it does apply to a broader category of cases, since although in that case no breach of the state's investigative obligation was alleged or found, the Court based its conclusion that article 13 had been violated in part on its opinion (paragraph 121) that the inquest, which did not permit any determination of liability, did not furnish the applicant with the possibility of establishing the responsibility of the prison authorities nor did it (paragraph 122) constitute an investigation capable of leading to the identification and punishment of those responsible for the deprivation of life. A statement of the inquest jury's conclusions on the main facts leading to the suicide of Mark Keenan would have precluded that comment.[18]Two considerations fortify confidence in the correctness of this conclusion. First, a verdict of an inquest jury (other than an open verdict, sometimes unavoidable) which does not express the jury's conclusion on a major issue canvassed in the evidence at the inquest cannot satisfy or meet the expectations of the deceased's family or next-of-kin. Yet they, like the deceased, may be victims. They have been held to have legitimate interests in the conduct of the investigation ( Jordan , paragraph 109), which is why they must be accorded an appropriate level of participation (see also R (Amin) v Secretary of State for the Home Department, supra ). An uninformative jury verdict will be unlikely to meet what the House in Amin , paragraph 31, held to be one of the purposes of an article 2 investigation:
"… that those who have lost their relative may at least have the satisfaction of knowing that lessons learned from his death may save the lives of others."
[19]The second consideration is that while the use of lethal force by agents of the state must always be a matter of the greatest seriousness, a systemic failure to protect human life may call for an investigation which may be no less important and perhaps even more complex: see Amin , paragraphs 21, 41, 50 and 62. It would not promote the objects of the Convention if domestic law were to distinguish between cases where an agent of the state may have used lethal force without justification and cases in which a defective system operated by the state may have failed to afford adequate protection to human life.[20]The European Court has repeatedly recognised that there are many different ways in which a state may discharge its procedural obligation to investigate under article 2. In England and Wales an inquest is the means by which the state ordinarily discharges that obligation, save where a criminal prosecution intervenes or a public enquiry is ordered into a major accident, usually involving multiple fatalities. To meet the procedural requirement of article 2 an inquest ought ordinarily to culminate in an expression, however brief, of the jury's conclusion on the disputed factual issues at the heart of the case.[21]Question (2) Does the regime for holding inquests established by the Coroners Act 1988 and the Coroners Rules 1984 (SI 1984/552) as hitherto understood and followed in England and Wales, meet the requirements of the Convention?[22]The historical and statutory background to the Coroners Act 1988 and the Coroners Rules 1984 was accurately summarised by the Court of Appeal in R v HM Coroner for North Humberside and Scunthorpe, Ex p Jamieson [1995] QB 1. There has been little significant legislative change in England and Wales since then, and that account need not be repeated. It is enough to identify the main features of the regime so far as relevant to this appeal.[23]By section 8(1) of the Act an inquest must be held where there is reasonable cause to suspect that a deceased person "(a) has died a violent or an unnatural death; (b) has died a sudden death of which the cause is unknown; or (c) has died in prison or in such a place or in such circumstances as to require an inquest under any other Act." If there is reason to suspect that the death occurred in prison or in police custody or resulted from an injury caused by a police officer in the purported execution of his duty, the inquest must be held with a jury (section 8(3)), and the independence of jurors dealing with prison deaths is specifically protected (section 8(6)). The requirement to summon a jury in such cases recognises the substantive and procedural obligations of the state which are now derived from article 2 as well as from domestic law. If a coroner fails to hold an inquest when he should, he may be ordered to do so, and if a coroner misconducts an inquest, another inquest may be ordered (section 13).[24]The task of the jury is to "inquire as jurors into the death of the deceased" (section 8(2)(a)) and they are sworn "diligently to inquire into the death of the deceased and to give a true verdict according to the evidence" (section 8(2)(b)). The coroner is to "examine on oath concerning the death all persons who tender evidence as to the facts of the death and all persons having knowledge of those facts whom he considers it expedient to examine" (section 11(2)). Thus the character of the proceedings is quite different from that of an ordinary trial, civil or criminal. The jury, where there is one, must hear the evidence and give their verdict (section 11(3)(a)). Section 11(5) requires that the inquisition, to be signed by the jury or a majority of them, must set out in writing, so far as such particulars have been proved, and in such form as the Lord Chancellor may by rule prescribe, "(i) who the deceased was; and (ii) how, when and where the deceased came by his death."[25]The 1988 Act recognises that a death which is the subject of an inquest may also be the subject of criminal proceedings, and also recognises the general undesirability of investigating publicly at an inquest evidence pertinent to a forthcoming criminal trial. In a departure from previous practice, section 11(6) of the Act provides:
"At a coroner's inquest into the death of a person who came by his death by murder, manslaughter or infanticide, the purpose of the proceedings shall not include the finding of any person guilty of the murder, manslaughter or infanticide; and accordingly a coroner's inquisition shall in no case charge a person with any of those offences."
Thus the inquest jury may no longer perform its former role as a grand jury. Section 16 of the Act (and rules 27 and 28 of the Rules) make provision for the adjourning of an inquest when criminal proceedings are or may be pending on certain specified charges or in certain specified circumstances (but not solely because any criminal proceedings arising out of the death of the deceased have been instituted: rule 32 of the Rules). After the conclusion of criminal proceedings the coroner may resume the adjourned inquest "if in his opinion there is sufficient cause to do so" (section 16(3)). Section 17A makes provision for the adjourning of an inquest when a public inquiry into a death is to be conducted or chaired by a judge. A coroner may only resume an inquest so adjourned "if in his opinion there is exceptional reason for doing so", and then subject to conditions (section 17A (4)).[26]The Coroners Rules 1984 have effect as if made under section 32 of the 1988 Act, which gives the Lord Chancellor, with the concurrence of the Secretary of State, a wide power to make rules for regulating the practice and procedure at inquests and to prescribe forms for use in connection with inquests. The 1984 Rules prescribe a hybrid procedure, not purely inquisitorial or purely adversarial. On the one hand, notice of the inquest must be given to the next-of-kin of the deceased and a widely defined group of other interested parties (rule 19), who are entitled to examine witnesses either in person or by an authorised advocate (rule 20); witnesses are privileged against self-incrimination; notice must be given to, and attendance facilitated of, persons whose conduct is likely to be called into question (rules 24 and 25). On the other hand, the coroner calls and first examines all witnesses, the representative of a witness questioning him last (rule 21); no person is allowed to address the coroner or the jury as to the facts (rule 40); and there is no particularised charge or complaint as in criminal or civil proceedings. In addition to examining the witnesses the coroner (rule 41) sums up the evidence to the jury and directs them as to the law, drawing their attention to rules 36(2) and 42. Rule 43 provides:
"A coroner who believes that action should be taken to prevent the recurrence of fatalities similar to that in respect of which the inquest is being held may announce at the inquest that he is reporting the matter in writing to the person or authority who may have power to take such action and he may report the matter accordingly."
Attention should be drawn to two important rules. The first of these, rule 36, provides:
"(1) The proceedings and evidence at an inquest shall be directed solely to ascertaining the following matters, namely - (a) who the deceased was; (b) how, when and where the deceased came by his death; (c) the particulars for the time being required by the Registration Acts to be registered concerning the death. (2) Neither the coroner nor the jury shall express any opinion on any other matters."
The second, rule 42, provides:
"No verdict shall be framed in such a way as to appear to determine any question of - (a) criminal liability on the part of a named person, or (b) civil liability."
[27]Rule 60 provides that the forms set out in Schedule 4 may be used for the purposes for which they are expressed to be applicable, with such modifications as circumstances may require. Schedule 4 includes, as form 22, a model form of inquisition. This suggests that, when recording the conclusion of the jury as to the death, one or other of certain forms should be adopted. The form provides that a finding that "the cause of death was aggravated by lack of care/self-neglect" should be added only where the finding is of a death caused by natural causes, industrial disease, dependence on or abuse of drugs, or want of attention at birth. In the case of murder, manslaughter or infanticide the suggested form of conclusion is that the deceased was "killed unlawfully".[28]Remarkably, as it now seems, the Court of Appeal made no reference to the European Convention in Ex p Jamieson , and the report does not suggest that counsel referred to it either. Counsel for Mrs Middleton criticised the reasoning of that decision, but it appears to the committee to have been an orthodox analysis of the Act and the Rules and an accurate, if uncritical, compilation of judicial authority as it then stood. Thus emphasis was laid on the function of an inquest as a fact-finding inquiry (page 23, conclusion (1)). Following R v Walthamstow Coroner, Ex p Rubenstein (19 February 1982, unreported), R v HM Coroner for Birmingham, Ex p Secretary of State for the Home Department (1990) 155 JP 107 and R v HM Coroner for Western District of East Sussex, Ex p Homberg (1994) 158 JP 357, the Court of Appeal interpreted "how" in section 11(5)(b)(ii) of the Act and rule 36(1)(b) of the Rules narrowly as meaning "by what means" and not "in what broad circumstances" (page 24, conclusion (2)). It was not the function of a coroner or an inquest jury to determine, or appear to determine, any question of criminal or civil liability, to apportion guilt or attribute blame (page 24, conclusion (3)). Attention was drawn to the potential unfairness if questions of criminal or civil liability were to be determined in proceedings lacking important procedural protections (page 24, conclusion (4)). A verdict could properly incorporate a brief, neutral, factual statement, but should express no judgment or opinion, and it was not for the jury to prepare detailed factual statements (page 24, conclusion (6)). It was acceptable for a jury to find, on appropriate facts, that self-neglect aggravated or contributed to the primary cause of death, but use of the expression "lack of care" was discouraged and a traditional definition of "neglect" was adopted (pages 24-25, conclusions (7), (8) and (9)). Where it was found that the deceased had taken his own life, that was the appropriate verdict, and only in the most extreme circumstances (going well beyond ordinary negligence) could neglect be properly found to have contributed to that cause of death (pages 25-26, conclusion (11)). Reference to neglect or self-neglect should not be made in a verdict unless there was a clear and direct causal connection between the conduct so described and the cause of death (page 26, conclusion (12)). It was for the coroner alone to make reports with a view to preventing the recurrence of a fatality (page 26, conclusion (13)). Emphasis was laid on the duty of the coroner to conduct a full, fair and fearless investigation, and on his authority as a judicial officer (page 26, conclusion (14)).[29]How far, then, does the current regime for conducting inquests in England and Wales match up to the investigative obligation imposed by article 2?[30]In some cases the state's procedural obligation may be discharged by criminal proceedings. This is most likely to be so where a defendant pleads not guilty and the trial involves a full exploration of the facts surrounding the death. It is unlikely to be so if the defendant's plea of guilty is accepted (as in Edwards), or the issue at trial is the mental state of the defendant (as in Amin ), because in such cases the wider issues will probably not be explored.[31]In some other cases, short verdicts in the traditional form will enable the jury to express their conclusion on the central issue canvassed at the inquest. McCann has already been given as an example: see paragraph 14 above. The same would be true if the central issue at the inquest were whether the deceased had taken his own life or been killed by another: by choosing between verdicts of suicide and unlawful killing, the jury would make clear its factual conclusion. But it is plain that in other cases a strict Ex p Jamieson approach will not meet what has been identified above as the Convention requirement. In Keenan the inquest verdict of death by misadventure and the certification of asphyxiation by hanging as the cause of death did not express the jury's conclusion on the events leading up to the death. Similarly, verdicts of unlawful killing in Edwards and Amin , although plainly justified, would not have enabled the jury to express any conclusion on what would undoubtedly have been the major issue at any inquest, the procedures which led in each case to the deceased and his killer sharing a cell.[32]The conclusion is inescapable that there are some cases in which the current regime for conducting inquests in England and Wales, as hitherto understood and followed, does not meet the requirements of the Convention. This is a conclusion rightly reached by the judge in this case (see paragraph 44 below) and by the Court of Appeal both in the present case (see paragraph 44 below) and in cases such as R (Davies) v HM Deputy Coroner for Birmingham [2003] EWCA Civ 1739 (2 December 2003, unreported), paragraph 71.[33]Question (3) Can the current regime governing the conduct of inquests in England and Wales be revised so as to meet the requirements of the Convention, and if so, how?[34]Counsel for the Secretary of State rightly suggested that the House should propose no greater revision of the existing regime than is necessary to secure compliance with the Convention, even if it were (contrary to his main submission) to reach the conclusion just expressed. The warning is salutary. There has recently been published "Death Certification and Investigation in England, Wales and Northern Ireland: The Report of a Fundamental Review" (June 2003, Cm 5831). Decisions have yet to be made on whether, and how, to give effect to the recommendations. Those decisions, when made, will doubtless take account of policy, administrative and financial considerations which are not the concern of the House sitting judicially. It is correct that the scheme enacted by and under the authority of Parliament should be respected save to the extent that a change of interpretation (authorised by section 3 of the Human Rights Act 1998) is required to honour the international obligations of the United Kingdom expressed in the Convention.[35]Only one change is in our opinion needed: to interpret "how" in section 11(5)(b)(ii) of the Act and rule 36 (1)(b) of the Rules in the broader sense previously rejected, namely as meaning not simply "by what means" but "by what means and in what circumstances".[36]This will not require a change of approach in some cases, where a traditional short form verdict will be quite satisfactory, but it will call for a change of approach in others (paragraphs 30-31 above). In the latter class of case it must be for the coroner, in the exercise of his discretion, to decide how best, in the particular case, to elicit the jury's conclusion on the central issue or issues. This may be done by inviting a form of verdict expanded beyond those suggested in form 22 of Schedule 4 to the Rules. It may be done, and has (even if very rarely) been done, by inviting a narrative form of verdict in which the jury's factual conclusions are briefly summarised. It may be done by inviting the jury's answer to factual questions put by the coroner. If the coroner invites either a narrative verdict or answers to questions, he may find it helpful to direct the jury with reference to some of the matters to which a sheriff will have regard in making his determination under section 6 of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976: where and when the death took place; the cause or causes of such death; the defects in the system which contributed to the death; and any other factors which are relevant to the circumstances of the death. It would be open to parties appearing or represented at the inquest to make submissions to the coroner on the means of eliciting the jury's factual conclusions and on any questions to be put, but the choice must be that of the coroner and his decision should not be disturbed by the courts unless strong grounds are shown.[37]The prohibition in rule 36(2) of the expression of opinion on matters not comprised within sub-rule (1) must continue to be respected. But it must be read with reference to the broader interpretation of "how" in section 11(5)(b)(ii) and rule 36(1) and does not preclude conclusions of fact as opposed to expressions of opinion. However the jury's factual conclusion is conveyed, rule 42 should not be infringed. Thus there must be no finding of criminal liability on the part of a named person. Nor must the verdict appear to determine any question of civil liability. Acts or omissions may be recorded, but expressions suggestive of civil liability, in particular "neglect" or "carelessness" and related expressions, should be avoided. Self-neglect and neglect should continue to be treated as terms of art. A verdict such as that suggested in paragraph 45 below ("The deceased took his own life, in part because the risk of his doing so was not recognised and appropriate precautions were not taken to prevent him doing so") embodies a judgmental conclusion of a factual nature, directly relating to the circumstances of the death. It does not identify any individual nor does it address any issue of criminal or civil liability. It does not therefore infringe either rule 36(2) or rule 42.[38]The power of juries to attach riders of censure or blame was abolished on the recommendation of the Report of the Departmental Committee on Coroners under the chairmanship of Lord Wright (Cmd 5070, 1936). It has not been reintroduced. Juries do not enjoy the power conferred on Scottish sheriffs by the 1976 Act to determine the reasonable precautions, if any, whereby the death might have been avoided (section 6(1)(c)). Under the 1984 Rules, the power is reserved to the coroner to make an appropriate report where he believes that action should be taken to prevent the recurrence of fatalities similar to that in respect of which the inquest is being held. Compliance with the Convention does not require that this power be exercisable by the jury, although a coroner's exercise of it may well be influenced by the factual conclusions of the jury. In England and Wales, as in Scotland, the making of recommendations is entrusted to an experienced professional, not a jury. In the ordinary way, the procedural obligation under article 2 will be most effectively discharged if the coroner announces publicly not only his intention to report any matter but also the substance of the report, neutrally expressed, which he intends to make. The present case.[39]Colin Campbell Middleton took his own life by hanging himself in his cell at HMP Horfield on 14 January 1999. He had been in custody since, aged 14, he was convicted in April 1982 of murdering his eighteen-month old niece.[40]His career in prison was uneven, periods of progress being interrupted by setbacks, some of his own making, some attributable to the hostility of fellow-prisoners. After trial periods in open prisons in 1993, 1994 and 1996 he was transferred to Horfield where, in November 1998 he harmed himself seriously. A self-harm at risk form (F2052SH) was then opened, but closed a few days later. There was evidence that he was depressed, and he was receiving medication at the time of his death. On 11 January 1999 he wrote to the Wing Governor, unhappy about his status and referring to his mental illness. He spoke of suicide to another prisoner who may, or may not, have passed on this information to the authorities. Although he was aged only 30, he had spent more than half his life in custody.[41]The verdict reached at a first inquest was quashed for want of sufficient enquiry, and a second inquest was held over three days in October 2000, when oral evidence was received from eleven witnesses and written evidence from a further seven. It is accepted by Mrs Middleton and the family of the deceased that at this inquest the issues surrounding the death were thoroughly, effectively and sensitively explored.[42]At the end of the evidence the coroner ruled that the issue of "neglect" should not be left to the jury. But he told the jury that if they wished to do so they could give him a note regarding any specific areas of the evidence about which they were concerned, and he would consider the note, which would not be published, when considering exercise of his power under rule 43.[43]The jury found the cause of death to be hanging and returned a verdict that the deceased had taken his own life when the balance of his mind was disturbed. The jury also gave the coroner a note which communicated the jury's opinion that the Prison Service had failed in its duty of care for the deceased. The family asked that the note should be appended to the inquisition, but the coroner declined to do so. The contents of the note remained private until, in the course of these proceedings, two points made by the jury were revealed. As the judge put it, the jury "(a) expressed concern that a form F2052SH had been closed by two officers who had no prior knowledge of Mr Middleton; and (b) expressed their belief that a letter of 11 January 1999 written by him contained sufficient information to warrant an F2052SH being opened." In exercise of his power under rule 43, the coroner wrote a full letter to the Chief Inspector of Prisons, drawing attention to the jury's point (a) and to the jury's noting of "a failure in the prison's responsibilities towards Middleton and a total lack of communication between all grades of prison staff". The coroner pointed out that on the day before his death the deceased had not left his cell, even for meals, and had placed a rug all day over the inspection port window into the cell.[44]In her judicial review application Mrs Middleton did not question the adequacy of the coroner's investigation nor seek an order that there be a further inquest. She sought an order that the jury's findings as set out in their note be publicly recorded, and that there should thus be a formal public determination of the responsibility of the Prison Service for the death of the deceased. The issue was thus raised whether the current regime for holding inquests in England and Wales meets the requirements of article 2 of the Convention. In his reserved judgment given on 14 December 2001 ([2001] EWHC Admin 1043), paragraph 54, Stanley Burnton J said:
"However, where there has been neglect on the part of the State, and that neglect was a substantial contributory cause of the death, my view is that a formal and public finding of neglect on the part of the State is in general necessary in order to satisfy those requirements [of article 2]."
He therefore concluded (paragraph 56) that an inquest would not necessarily satisfy the procedural requirements of article 2 in a case such as the present. But the judge declined to order that the jury's note be incorporated in the inquisition, for a series of reasons but most importantly because he considered that the coroner had acted unlawfully in suggesting production of the note. The judge recorded (paragraph 60) that in the view of the jury and the coroner there had been significant deficiencies in the Prison Service's care of the deceased. He considered that no declaration was needed but, at the request of the Secretary of State, declared that:
"by reason of the restrictions on the verdict at the inquest into the death of [the deceased] . . . that inquest was inadequate to meet [the] procedural obligation in Article 2 of the European Convention . . ."
The Secretary of State appealed to the Court of Appeal which delivered its reserved judgment on 27 March 2002: [2002] EWCA Civ 390, [2003] QB 581. It was found to be necessary, to comply with article 2, that a verdict of neglect be available, but the Court of Appeal distinguished between individual and systemic neglect: "87 A verdict of neglect can perform different functions. In particular, in the present context, it can identify a failure in the system adopted by the Prison Service to reduce the incidence of suicide by inmates. Alternatively it may do no more than identify a failure of an individual prison officer to perform his duties properly. We offer two illustrations, which demonstrate the distinction we have in mind. On the one hand, the system adopted by a prison may be unsatisfactory in that it allows a prisoner who is a known suicide risk to occupy a cell by himself or does not require that prisoner to be kept under observation. On the other hand, the system may be perfectly satisfactory but the prison officer responsible for keeping observation may fall asleep on duty. 88 For the purpose of vindicating the right protected by article 2 it is more importa[45]It follows from the reasoning earlier in this opinion that the judge's declaration was correctly made, although not for all the reasons he gave. There was no dispute at this inquest whether the deceased had taken his own life. He had left a suicide note, and it was plain that he had. The crux of the argument was whether he should have been recognised as a suicide risk and whether appropriate precautions should have been taken to prevent him taking his own life. The jury's verdict, although strictly in accordance with the guidance in Ex p Jamieson, did not express the jury's conclusion on these crucial facts. This might have been done by a short and simple verdict (eg "The deceased took his own life, in part because the risk of his doing so was not recognised and appropriate precautions were not taken to prevent him doing so"). Or it could have been done by a narrative verdict or a verdict given in answer to the coroner's questions. By one means or another the jury should, to meet the procedural obligation in article 2, have been permitted to express their conclusion on the central facts explored before them.[46]Had this been done (and the coroner cannot of course be criticised for applying the law as it stood) it would not have been necessary to invite the jury to submit a note. Their assessment of the facts and probabilities would have been clear, and the coroner (having also heard the evidence) could have judged what report he should make under rule 43. As it was, he was not constrained by the jury's note in what he reported. But the judge was right to view private communications between the jury and the coroner with disfavour, since such a practice must derogate from the public nature of the proceedings.[47]The declaration made by the Court of Appeal found no friend in argument before the House. In the absence of full criminal proceedings, and unless otherwise notified, a coroner should assume that his inquest is the means by which the state will discharge its procedural investigative obligation under article 2. There is force in the criticism made by all parties of the distinction drawn between individual and systemic neglect, since the borderline between the two is indistinct and there will often be some overlap between the two: there are some kinds of individual failing which a sound system may be expected to detect and remedy before harm is done. There will, moreover, be individual failings which need to be identified even though an individual is not to be named. "Self-neglect" and "neglect" are terms of art in the law of inquests, and there is no reason to alter their meaning. The recommending of precautions to prevent repetition is for the coroner, not the jury.[48]There has been in this case a full and satisfactory investigation. Mrs Middleton does not seek another inquest. The conclusions of the jury, which Mrs Middleton sought to publicise, have been published to the world. No purpose is served by a declaration.[49]The arguments of the Secretary of State and Mrs Middleton on the acceptability of the inquest regime to discharge the state's procedural investigative obligation under article 2 have, in each case, succeeded in part and failed in part. But the Secretary of State has succeeded in persuading the House that the Court of Appeal's declaration should be set aside. To that extent his appeal succeeds. We make no order for the payment of costs by any party.[50]In this appeal no question was raised on the retrospective application of the Human Rights Act and the Convention. They were assumed to be applicable. Nothing in this opinion should be understood to throw doubt on the conclusion of the House in In re McKerr [2004] UKHL 12. APPENDIX I ORDERS OF REFERENCE, ETC. WEDNESDAY 20 JUNE 2001 Appeal Committees—Two Appeal Committees were appointed pursuant to Standing Order. Appellate Committees—Two Appellate Committees were appointed pursuant to Standing Order. ____________________ THURSDAY 4 JULY 2002 Regina v. H M Coroner for the Western District of Somerset (Respondent) and another (Petitioner) ex parte Middleton (Respondent)—The petition of the Secretary of State for the Home Department praying for leave to appeal was presented and referred to an Appeal Committee (lodged 25th April). ____________________ TUESDAY 24 SEPTEMBER 2002 Regina v . H M Coroner for the Western District of Somerset (Respondent) and another (Petitioner) ex parte Middleton (FC) (Respondent)—The certificate of public funding of Jean Middleton was lodged. ____________________ WEDNESDAY 13 NOVEMBER 2002 Appeal Committees—Two Appeal Committees were appointed pursuant to Standing Order. Appellate Committees—Two Appellate Committees were appointed pursuant to Standing Order. ____________________ THURSDAY 14 NOVEMBER 2002 Regina v . H M Coroner for the Western District of Somerset (Respondent) and another (Petitioner) ex parte Middleton (FC) (Respondent)—That leave to appeal be given, and that the petition of appeal be lodged by 28th November. _________ MONDAY 2 DECEMBER 2002 Regina v . H M Coroner for the Western District of Somerset (Respondent) and another (Appellant) ex parte Middleton (FC) (Respondent) (England)—The appeal of the Secretary of State for the Home Department was presented and it was ordered that in accordance with Standing Order VI the statement and appendix thereto be lodged on or before 13th January next (lodged 28th November). ___________ MONDAY 13 JANUARY 2003 Regina v. Her Majesty's Coroner for the Western District of Somerset (Respondent) and another (Appellant) ex parte Middleton (FC) (Respondent)—The petition of the appellant praying that the time for lodging the statement and appendix and setting down the cause for hearing might be extended to 10th February next (the agents for the respondent consenting thereto) was presented; and it was ordered as prayed. _____________ MONDAY 10 FEBRUARY 2003 Regina v. Her Majesty's Coroner for the Western District of Somerset (Respondent) and another (Appellant) ex parte Middleton (FC) (Respondent)—The petition of the appellant praying that the time for lodging the statement and appendix and setting down the cause for hearing might be extended to 10th March next (the agents for the respondent consenting thereto) was presented; and it was ordered as prayed. _______ MONDAY 10 MARCH 2003 Regina v. Her Majesty's Coroner for the Western District of Somerset (Respondent) and anothe

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