Davies, R (on the application of) v HM Deputy Coroner for Birmingham

This is an appeal by the claimant, who is the mother of Darren Davies, against an order of Moses J on 11^th February 2003 whereby he dismissed her application for judicial review of a coroner’s inquisition held into the death of her son in HMP Prison, Winson Green, Birmingham on 5^th March 2001. After a five-day inquest, the coroner’s jury returned a verdict of accidental death on 1^st February 2002. The cause of death was recorded as cardiac arrest due to metabolic imbalance due to repeated vomiting.

On 1^st March 2001 the claimant’s son Darren, who was then 23, was admitted to Winson Green prison. He was seen on his admission by Dr Rahman at about 7pm, who noted in a health screen record that he had taken heroin the day before. At the inquest his mother confirmed that this was correct. He was complaining on admission of aches and pains. Dr Rahman prescribed detoxification drug treatment, to be taken over a period of four days.

On the following day, 2^nd March, Darren attended at 8 am at the treatment hatch on his wing (C Wing) for his second dose, but the card which recorded the treatment prescribed to him had been placed in the tray designated for A Wing. For this reason the drug could not be prescribed, and he did not ask for the dose again after his card had been sent to C wing. Although there was a sick parade on C Wing between 9.30 and 11.30 am that morning he did not attend it. The evidence showed that he was being seen for categorisation that morning, and that he had also had visits from the prison chaplain and a drugs nurse, which might be the reason why he did not attend.

At about lunch-time that day he was moved to B wing. That wing held its sick parade on a different day. Although there was a nurse at the treatment hatch on B Wing on the way to the dining hall, he did not ever ask for a further detoxification treatment dose. While he was in B wing, he rarely left his cell. He shared it with Mr Collins, who gave evidence at the inquest.

Darren’s sister told the inquest that she had rung the prison on the Friday to ask whether her brother had the medication he was to receive. The nurse who answered her telephone call told her that she was not in any position to check whether he had received his dose or not. She added that 80% of prisoners were on a detoxification programme, and the staff could not check on every one.

Mr Collins described to the inquest how Darren’s symptoms worsened. He could not take water, and when he tried to do so, he was sick straight away and suffered from pain. On the Friday night Mr Davies rang the buzzer, and Mr Collins thought that a prison officer gave him paracetamol. He seemed to be in a lot of pain. Mr Collins described how Darren called for help on the Saturday evening by pressing the buzzer in the cell once or twice (he could not remember which). When the buzzer was rung at 9.15 pm that evening, a prison officer advised Darren to see a nurse the following day. Mr Collins added that this officer told Darren "you got on your boat, you ride it", meaning that it was his own fault for having taken drugs.

Mr Collins said that on the following day, Sunday 4^th March, Darren felt worse. He did not get out of his bed, or out of his cell for exercise. He complained of a bad chest. He could not move his fingers, which were clamped up. Dr Ralli, a prison officer from another prison who furnished an independent report, told the inquest that by now Darren was very unwell with vomiting and diarrhoea, and with no food or fluid intake, and that his internal metabolic and electrolyte systems were becoming abnormal. Mr Collins would clean up the cell when Darren dirtied it, so that it did not smell and they would not get into trouble for dirtying the cell. As a result the prison staff were not aware of the diarrhoea and vomiting.

Darren was worse on Sunday evening. He was still vomiting and was now too weak to go to the lavatory. He had spasms in his elbows and fingers. When the buzzer was pressed at about 8 pm, a prison officer called and advised him to see a doctor in the morning. At 9.20 pm a night agency nurse called Nurse Spencer attended. She advised Mr Collins to make sure that Darren went for treatment on the Monday morning. Nurse Spencer was not a general nurse: she had particular skills in the mental health field. Darren complained to her of stiffness in his arm joints, and she noted that his hands were in a strange position. She manipulated his joints and gave him two paracetamol tablets. She did not take a history from him. As she was leaving the cell, Mr Collins told her that Darren had been feeling poorly. When she returned to the prison’s health centre, she checked his record. She also ascertained that the health centre was full.

On the Monday morning, 5^th March, the buzzer was pressed at 6.15 am. Darren had fallen off his bed. Two prison officers and Nurse Spencer lifted him back onto it. Nurse Spencer told him that a doctor would see him. Mr Collins told the inquest that Darren had been sick, and that he had cleaned up the vomit. Prison Officer Biddle for his part told the inquest that he had visited the cell on both the Sunday night and on the Monday morning. On the Sunday night Darren’s wrists were rigid and in an unnatural position. On the Monday morning they were more flexible. Darren was told he was going to be referred to a doctor that morning.

At 7.10 am, less than an hour later, the cell buzzer was pressed again. By this time Darren was unconscious and not breathing. Steps were then taken to try to revive him. An ambulance was called, but he died despite the attempts of a paramedic to resuscitate him.

Prison Officer Fitzgerald told the inquest that she recalled two calls on the Sunday night. On the first occasion she advised Darren to see the doctor in the morning. One and a half hours later he was still in pain, so that the nurse was called. His arms were hurting and in a cramped position, and Prison Officer Fitzgerald remembers Mr Collins saying that Darren had been sick. On the Monday he had fallen on the floor, and Prison Officer Fitzgerald described how he was lifted onto a bed. She ascribed his symptoms to drugs.

Nurse Spencer told the inquest how she had attended on Sunday night, when she manipulated Darren, gave him paracetamol, and advised him to attend the health care centre the next day. This was not the first time she had seen spasms being suffered by someone withdrawing from drugs. The following morning she saw no evidence of dehydration. Darren’s lips were not sticking together, and she did not find his symptoms particularly unusual. Nor did she think it odd that he had failed to follow up the prescription he had been given for the detoxification programme.

When she saw him on the Monday morning he was stretched out, but his hands were more supple. He was coherent in talking, and complained of discomfort in his joints. His blood pressure and his pulse were normal. She saw no evidence of diarrhoea or vomiting, and she smelt none of the effects of those symptoms. She ascribed his symptoms to drug withdrawal. She said she had no concerns, other than that she wanted him to see a doctor that morning. If she had thought that it was necessary to call out a doctor, she could have done so easily.

Four doctors expressed their opinions as to the cause of Darren’s death. Dr Tapp, a pathologist instructed by Darren’s family, said in a written report that he died of dehydration, consistent with someone suffering from significant diarrhoea and vomiting. The cause might never be ascertained, but it was unlikely to be drug withdrawal. He suffered from the symptoms of acute enteritis. Dr Ralli for his part said that the cramps from which Darren suffered in his upper limbs, and particularly in his hands, were unusual. Dr Khan, who was an expert on the effects of opiate withdrawal, described Darren’s symptoms as being most unusual, particularly those of very severe dehydration. Dr Acland, the Home Office pathologist, concurred in the unusual nature of the cause of death. He took the view that Darren had died from the complications of dehydration.

In his written report Dr Ralli made the following comments on clinical issues:

(1)

After Darren’s reception assessment at which a treatment plan was established, the onus was placed on him to seek his treatments and to seek further help if required.

(2)

Nobody checked to see why he did not attend for treatment, or attend reporting sick, or collect his meals.

(3)

Practices are in place for those considered to be at risk (diabetics and those on heart medicines) if they do not receive their treatment to be followed up; but these practices do not seem to extend to drug users. Given all the recognised risks (especially from self-harm) amongst drug users on coming into prison, this matter needs to be reviewed.

(4)

If his case had been followed up, and if he had taken the treatment prescribed for him, this may have prevented his deterioration.

(5)

Darren’s presentation on the Sunday night was unusual. The nurse did not elicit all the available information about the vomiting and diarrhoea, or about the absence of food or fluid intake, or about the fact that he had not taken any of his prescribed medicine.

(6)

She should have discussed the case with the duty doctor.

(7)

She should have been able to move him to an area for closer health care supervision. HMP Birmingham does not possess such a resource, since in-patients are not monitored by health care staff through the night.

(8)

Darren’s collapse in the early hours was also very unusual. Again, there should have been discussion with the duty doctor, and arrangements for closer monitoring.

The coroner ruled that Dr Ralli’s last three points should not be given in evidence to the jury. However, the evidence relating to the unusual nature of Darren’s presentation on Sunday night (Point 5), and the fact that the nurse did not elicit all the available information, were both before the jury. When Nurse Spencer gave evidence, she said that if there was a history of profuse vomiting, you would want to examine the person, and perhaps do some blood tests. Dr Ralli himself commented in his oral evidence on the desirability of treatment, having regard to the unusual nature of the presentation.

Mr Pascoe, a prison governor who gave independent evidence, told the inquest about the lack of machinery for follow-up after an initial assessment, although he also spoke approvingly of the speed at which people had arrived at the scene. He described the nurse's decision as an exercise of professional medical judgment. The assistant governor at Birmingham, Mr Price, described the detoxification programme and the quality of the nurses. He said that a doctor was on call 24 hours a day, and that the prison hospital was only two minutes away. Dr Rahman had earlier told the inquest that between 75% and 80% of people going to prison have some sort of drug problem. The dose he had prescribed was intended to ease the symptoms of drug withdrawal, but it was not mandatory

The coroner then summed the case up to the jury who in due course returned a verdict of accidental death.

The claimant’s case is that the coroner failed properly to direct the jury as to the meaning of neglect, failed to admit the evidence from Dr Ralli which reflected his views as to the quality of care afforded to Darren, and failed adequately to leave to the jury the issue as to whether the system for his care on and after admission was defective.

Particular complaint was made of the fact that the coroner wrongly emphasised the rarity of a verdict that neglect had contributed to the cause of death. He also failed to explain that there were circumstances in which Nurse Spencer's failure to seek assistance could amount to neglect, notwithstanding her decision, as a matter of judgment, that such assistance was unnecessary. And he failed to leave to the jury any issues relating to a systemic failure in the prison’s arrangements for caring for a prisoner who needed medication for drug withdrawal.

The relevant principles of law were conveniently brought together by the judge in the second main section of his judgment. Before the Human Rights Act 1998 came into force, the meaning of a verdict of “neglect” was explained by Sir Thomas Bingham MR in R v HM Coroner for North Humberside and Scunthorpe, ex parte Jamieson [1995] QB 1, 24. He emphasised the nature of the fact-finding enquiry to be conducted by a coroner, and then set out certain principles. He expressed the third of these principles in these terms:

“It is not the function of a coroner or his jury to determine, or appear to determine, any question of criminal or civil liability, to apportion guilt or attribute blame. This principle is expressed in rule 42 of the Rules of 1984. The rule does, however, treat criminal and civil liability differently: whereas a verdict must not be framed so as to appear to determine any question of criminal liability on the part of a named person, thereby legitimating a verdict of unlawful killing provided no one is named, the prohibition on returning a verdict so as to appear to determine any question of civil liability is unqualified, applying whether anyone is named or not.”

He expressed the ninth principle as follows:

“Neglect in this context means a gross failure to provide adequate nourishment or liquid, or provide or procure basic medical attention or shelter or warmth for someone in a dependent position (because of youth, age, illness or incarceration) who cannot provide it for himself. Failure to provide medical attention for a dependent person whose physical condition is such as to show that he obviously needs it may amount to neglect. So it may be if it is the dependent person's mental condition which obviously calls for medical attention (as it would, for example, if a mental nurse observed that a patient had a propensity to swallow razor blades and failed to report this propensity to a doctor, in a case where the patient had no intention to cause himself injury, but did thereafter swallow razor blades with fatal results). In both cases the crucial consideration will be what the dependent person's condition, whether physical or mental, appeared to be.”

His twelfth principle was in these terms:

“Neither neglect nor self-neglect should ever form any part of any verdict unless a clear and direct causal connection is established between the conduct so described and the cause of death.”

In R (Amin and Middleton) v Home Secretary [2002] EWCA Civ 390;[2003] QB 581 this court considered the impact of Article 2 of the European Convention on Human Rights on these matters. After mentioning the effect of the decision of the European Court of Human Rights in Osman v United Kingdom [1998] 29 EHRR 245, 305-306 Lord Woolf CJ, giving the judgment of the court, said that without a duty to investigate the substantive right conferred by Article 2 would or might in some cases be rendered ineffective. He described (at para 32) the duty to investigate as 'adjectival'. He later said (at para 62):

“62.

What is required (by way of investigation) will vary with the circumstances. A credible accusation of murder or manslaughter by state agents will call for an investigation of the utmost rigour, conducted independently for all to see. An allegation of negligence leading to death in custody, though grave enough in all conscience, bears a different quality from a case where it is said the state has laid on lethal hands. The procedural obligation promotes interlocking aims: to minimise the risk of future like deaths; to give the beginnings of justice to the bereaved; to assuage the anxieties of the public. The means of their fulfilment cannot be reduced to a catechism of rules. What is required is a flexible approach responsive to the dictates of the facts case by case.”

For the House of Lords’ opinions on this passage, see para 52 below.

On the appeal in the case of Middleton, Lord Woolf considered the judgment of Stanley Burnton J at first instance who had granted a declaration to the effect that the restrictions on the verdict at the inquest had been inadequate to meet the procedural obligations contained in Article 2 of the European Convention on Human Rights. Lord Woolf referred to the decision in Jamieson in these terms (at para 87):

“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 important to identify defects in the system than individual acts of negligence. The identification of defects in the system can result in it being changed so that suicides in the future are avoided. A finding of individual negligence is unlikely to lead to that result. If the facts have been investigated at the inquest, the evidence given for this purpose should usually enable the relatives to initiate civil proceedings against those responsible without the verdict identifying individuals by name. The shortcomings of civil proceedings in meeting the requirements of article 2 do not in general prevent actions in the domestic courts for damages from providing an effective remedy in cases of alleged unlawful conduct or negligence by public authorities.

89.

In contrast with the position where there is individual negligence, not to allow a jury to return a verdict of neglect in relation to a defect in the system could detract substantially from the salutary effect of the verdict. A finding of neglect can bring home to the relevant authority the need for action to be taken to change the system, and thus contribute to the avoidance of suicides in the future. The inability to bring in a verdict of neglect (without identifying any individual as being involved) in our judgment significantly detracts, in some cases, from the capacity of the investigation to meet the obligations arising under article 2.” (Emphasis added)

A little later Lord Woolf said (at para 91):

“91.

In a situation where a coroner knows that it is the inquest which is in practice the way the state is fulfilling the adjectival obligation under article 2, it is for the coroner to construe the Rules in the manner required by section 6(2)(b) [of the Human Rights Act 1998]. Rule 42 can and should, contrary to R v Coroner for North Humberside and Scunthorpe, Ex p Jamieson [1995] QB 1, when necessary be construed (in relation to both criminal and civil proceedings) only as preventing an individual being named, with the result that a finding of system neglect of the type we have indicated will not contravene that rule. If the coroner is acting in accordance with the rule for this purpose he will not be offending in this respect section 6(1).

92.

For a coroner to take into account today the effect of the Human Rights Act 1998 on the interpretation of the Rules is not to overrule Jamieson's case by the back door. In general the decision continues to apply to inquests, but when it is necessary so as to vindicate article 2 to give in effect a verdict of neglect, it is permissible to do so. The requirements are in fact specific to the particular inquest being conducted, and will only apply where in the judgment of the coroner a finding of the jury on neglect could serve to reduce the risk of repetition of the circumstances giving rise to the death being inquired into at the inquest.”

Moses J said that it was possible to derive from that judgment the proposition that a verdict of system neglect might be appropriate in order to identify defects in the system and prevent their recurrence. Such an identification of the defects in the system was to be contrasted with an identification of negligent acts by an individual.

He reminded himself that a gross failure, in accordance with the Jamieson test, might be found even where an individual had purported to make a clinical decision or diagnosis. Gross failures were not limited to those cases where an individual had failed to take any action at all. In Cleo Scott v HM Coroner for Inner West London[2001] EWHC Admin 105 at [28] – [29] Keene LJ said:

“…He was put in his cell on his own. No observations at specific intervals were required.

All this seems to have flowed from the views formed by the medical practitioners at the prison, but that in itself, while relevant, cannot rule out neglect.

There have been a number of cases where there had been medical attention but where neglect remained a possible element in a verdict ... Omissions on the part of medical practitioners are capable of forming part of the total picture which amounts to neglect.”

In R (Nicholls) v Coroner for City of Liverpool [2001] EWHC Admin 922 the Divisional Court was concerned with the alleged failure of a police forensic medical examiner properly to recognise the fact that the deceased had swallowed drugs, believed to be heroin. The court plainly thought that his failure could amount to neglect. Sullivan J, with whom Rose LJ agreed, said (at para 52):

“Notwithstanding [Counsel’s] submission that neglect and negligence are two different 'animals', there is, in reality, no precise dividing line between 'a gross failure to provide ... basic medical attention' and a 'failure to provide ... medical attention'. The difference is bound to be one of degree, highly dependent on the facts of the particular case.”

The first of the criticisms of the coroner’s summing up before Moses J was that he placed undue emphasis on the rarity of a verdict of neglect. He said:

“But you must understand that it is nothing at all to do with negligence. It is very unusual and will only arise in a very, very, small percentage of cases, but in view of the circumstances of this case, it was appropriate that you are given the option.”

A little later he emphasised again the rarity of the verdict, quoting a textbook writer as saying that such cases would be very few and far between.

Moses J said that he probably meant no more than to emphasise the contrast between simple negligence and the need to identify gross failure, which, he emphasised on more than one occasion, had an extremely “narrow meaning”, But he added that to the extent that the coroner did comment upon the rarity of such a verdict, he was, in his view, wrong. To comment on the rarity of the verdict did not assist in defining neglect to the jury. He did not, however, consider that the reference to the unusual nature of such a verdict was of itself a ground for disturbing the verdict of the jury. He said that the coroner’s error was not, in its context, when the summing-up was read as a whole, such a misdirection as to vitiate the jury's ultimate conclusion, even if it was not likely to assist them in understanding the concept of neglect.

The judge considered that two other defects in the summing-up were more serious. The coroner had failed to make clear to the jury that Nurse Spencer's failure to seek assistance was at least capable of constituting neglect, even though she had exercised her judgment in deciding that it was unnecessary to call for any assistance. He had never made it clear to the jury whether an exercise of her judgment could or could not constitute neglect. At the outset of the summing-up he had said:

“You have to establish the facts. For example, did someone make a decision? Yes or no. It is not your province to determine whether that decision was right or wrong.”

He later said of the meaning of “neglect”:

“It is a very, very, narrow definition indeed. First of all there has got to be a gross failure which really means a total and complete failure; to provide adequate nourishment, liquid, et cetera, so it really means doing absolutely nothing. It doesn't mean doing your incompetent best, if that be the situation. It means doing absolutely nothing. It's far more than an error of judgment, if an error of judgment there has been. There's got to be a total and complete failure.”

The judge considered that this passage suggested that, since Nurse Spencer did something (in that she attended Darren and formed a conclusion), it was not open to the jury to find neglect. A little later, however, the coroner appeared to say the opposite. He told the jury:

“An error of judgment by an individual, being an individual qualified to make that judgment, as to the appropriate medical attention needed by Mr Davies would not amount to a gross failure unless it can be said that their plan was plainly wrong and they would not have allowed the plan ... followed the plan if they were to stop and think about it in the cold light of day.”

The judge remarked that whatever one's criticism as to the clarity of that direction, it did at least appear that at that point the coroner was directing the jury that it was open to them to find neglect, notwithstanding the exercise of judgment. Later, however, the coroner appeared to revert to his earlier direction that the jury were not concerned with whether the assessment was right or wrong, when he said:

“So Nurse Spencer made her clinical assessment. Whether or not that assessment was right or wrong, as we've said more than once, we're not concerned with. She made that assessment.”

The judge said that, reading the directions as a whole, it could not have been made clear to the jury, as it ought to have been, that it was open to them to find neglect, notwithstanding the nurse’s apparent exercise of judgment to the effect that it was unnecessary to seek assistance for the deceased. He said he was far from saying that a verdict of neglect would have been correct. This would depend in part upon the somewhat confused evidence as to how much the nurse had been told. But her failure to seek assistance was capable of constituting neglect, even though she exercised a clinical judgment as to whether such assistance was necessary: see, for instance Keene LJ in Cleo Scott (see para 28 above) This was not made clear to the jury.

The judge also criticised the coroner for failing to leave to the jury any issue as to systemic defects. The coroner did not have the benefit of this court’s decision in Amin and Middleton, which was decided very shortly afterwards, but there was an issue before the inquest as to whether, when inmates on admission were withdrawing from drugs and required medication, the system for following up their cases was defective. Dr Ralli had commented on certain defects in the system, and his comments had been taken up by Mr Pascoe and Mr Price. Those criticisms led to the coroner writing a letter to the prison (see para 41 below), but the identification of the defects in the system of which witnesses had given evidence, and the question whether such defects constituted neglect, were not laid before the jury.

Finally, the judge considered the coroner’s failure to place Dr Ralli’s evidence in full before the jury. The coroner’s decision was based on his view that this evidence was unnecessary in the light of Nurse Spencer's decision not to seek a doctor’s help. He thought that it was irrelevant to consider what might have happened if she had reached a different view as to Darren’s condition.

The judge said that Dr Ralli’s evidence might be regarded as constituting implicit criticism, especially in the light of his emphasis on the unusualness of Darren’s condition, but he did not think that that ruling by the coroner had led to any defect in the conduct of the inquest. Dr Ralli had stopped short of saying what a reasonable nurse would have done in the exercise of reasonable care. The judge contrasted that situation with the situation in Nicholls (see para 29 above), where a doctor had stated that the death was entirely preventable by steps which would have been exercised by any doctor acting to a reasonable standard. No such evidence was contained in Dr Ralli’s report. In those circumstances, the judge did not consider that the jury was wrongly deprived of the opportunity to consider the last three points in Dr Ralli's criticisms.

The judge’s overall conclusion was that the coroner’s directions were deficient in that he had failed to explain to the jury the circumstances in which it was open to them to find that Nurse Spencer's conduct amounted to neglect, and that he had also failed to leave it open to them to find that there were system defects which constituted neglect.

The judge then considered what, if any, remedy he should provide. He said he ought not to quash the verdict or to order a fresh inquest unless it was necessary and desirable in the interests of justice to do so: see Lord Woolf MR in R v Inner South Coroner's Court, ex Douglas Williams [1999] 1 All ER 344, 347. The judge acknowledged how distressing, anxious and important a matter this was for Darren’s relatives. But in this case a very full enquiry took place, with an abundance of evidence as to the system in place at the prison, as well as to the events leading up to Darren’s death. The evidence given at the inquest had led the coroner to write to the governor of the prison shortly after the inquest was over. He wrote of his concern as to the lack of involvement of the drugs team in Darren’s rehabilitation because the drugs team only worked on weekdays. He acknowledged that a new procedure had been set in place, but his letter continued:

“I am still concerned however that a prisoner who may be suffering from withdrawal symptoms may slip through the net because the prison officer or nurse at the Treatment Hatch may not recognise the signs or symptoms. Therefore, the sooner a new prisoner can be seen, assessed and taken under the wing of the Drugs Team the better, and although I appreciate that there are staffing and costs implications, I wonder whether a procedure could be introduced to ensure that a prisoner who arrives on a Thursday or Friday is dealt with in the same way as a prisoner who arrives earlier in the week.”

The judge said that in this way recommendations were made that were relevant to Darren’s tragic death. It was therefore difficult to see what more would be gained from another inquest, seeing that evidence was given so fully on the last occasion and recommendations as to improvements in the system had been made. In those circumstances he declined to quash the verdict or order a fresh inquest.

We are deciding this appeal during a transitional period before two decisions of this court in these matters are considered on appeal in the House of Lords. I will now summarise the effect of those decisions.

R (Middleton) v West Somerset Coroner was heard in this court at the same time as R (Amin) v Home Secretary [2002] EWCA Civ 390; [2003] QB 581. The deceased hanged himself in prison, and his family were critical of the Prison Service because it knew he was a suicide risk, and it should have put him on a suicide watch. At the inquest the jury was directed that it could not return a verdict of neglect. In the circumstances they found that the deceased had killed himself while the balance of his mind was disturbed. But they also handed the coroner a note containing four factual conclusions which indicated that the Prison Service had failed in its duty of care for the deceased. On the family’s application for judicial review, Stanley Burnton J ([2001] EWHC Admin 1043; [2002] Lloyds Med LR 107) held that the note was a private communication between the jury and the coroner, and that it would have been inconsistent with the private nature of the note for it to be incorporated in the inquisition. He granted a declaration that by reason of the restrictions on the verdict at the inquest into the deceased’s death, that inquest was inadequate to meet the procedural obligation contained in ECHR Article 2.

The judge expressed his concerns (at para 54) in these terms:

“…[W]here 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 [the requirements of Article 2]. A formal public finding is likely to be very much more effective in prompting action to prevent a recurrence of breach of Article 2 than a private communication from the Coroner pursuant to Rule 43, particularly given the prohibition on the Coroner announcing publicly the content of his concerns at the inquest. As Lord Woolf MR said in R v Inner South London Coroner, ex parte Douglas-Williams [1999] 1 All ER 344, 349:

‘… where someone dies in custody, … an inquest can provide the family with the only opportunity they will have of ascertaining what happened. In addition, … an inquest’s verdict can have a significant part to play in avoiding the repetition of inappropriate conduct and in encouraging beneficial change.’

In a democracy, the defects of the workings of the State should be open to public scrutiny and, where appropriate, to adverse public findings.”

On the Home Secretary’s appeal in that case this court could see no reason why in a case of systemic neglect a coroner’s jury should not return a verdict of neglect without infringing Rule 42 of the Coroners Rules 1984. I have already quoted, at paras 22 and 23 above, what Lord Woolf CJ said in paragraphs 89 and 92 of his judgment. In para 83 he had said that the issue the court had to decide was whether the requirements of Article 2 were achieved by applying the Coroners’ Rules in accordance with the guidance in Jamieson’s case, and if not, whether the application of the Rules could be modified so as to take into account the requirements of Article 2, if those requirements included permitting the jury to inquire into and return a verdict of “neglect” in a broader range of circumstances than contemplated by the approach laid down in Jamieson’s case. Although the court did not determine the issue in precisely these terms, it is reasonably clear that it decided in favour of the second alternative, so long as the identified neglect was systemic.

R (Sacker) v HM Coroner for West Yorkshire [2003] EWCA Civ 217; [2003] Lloyd’s Med R 326 was another case in which the deceased had hanged herself in prison and her family was critical of the Prison Service. It was alleged that procedures for handling a prisoner at risk of self harm had not been followed. At the inquest the coroner ruled that the issue of neglect should not be left to the jury. He exercised his right, however, under Rule 43 of the 1984 Rules to write to the Director-General of the Prison Service expressing his grave concern about certain aspects of the case, and requiring assurance for the future.

This court heard the substantive application for judicial review and decided, following Amin, that the jury ought to have been given an opportunity to add a rider amounting to neglect. The failure to give it amounted to a defect which required the inquisition to be quashed. In a judgment with which Mummery and Latham LJJ agreed, Pill LJ, however, expressed (at para 24) his reservations as to the appropriateness of the course the law had taken by its promotion of the neglect verdict at inquests as the means of vindicating Article 2. He was concerned about the limitation of the inquiry permitted to a coroner and his jury by the combination of Rules 36, 40 and 43, and he respectfully questioned (at para 25) whether, given present procedures, an inquest was the appropriate forum in which to consider an issue of systemic neglect for the purpose of vindicating article 2 in cases like this. He thought that the coroner’s action under Rule 43 appeared, in present circumstances, to be a stronger affirmation of the right to life, with its requirement of effective investigation into a death, particularly as the coroner’s jury were ill-equipped, given the context in which they operated, to identify and particularise the systemic neglect which they believed to be present, or even to decide whether they should particularise it.

It is obvious that the law is in an unsettled state, and I am conscious of the anxieties expressed about the decision in Middleton not only by Pill LJ but also by the editor of Jervis on Coroners (12^th Edition, 2003) at paras 12.93 – 12.94 and 13.44. When the case of Amin reached the House of Lords [2003] UKHL 51 Lord Bingham of Cornhill expressed (at para 33) the confident expectation that the recommendations made in Command Paper 5831 (June 2003) on the overhaul of inquest procedure in England and Wales were receiving urgent attention. Lord Hope of Craighead, for his part, identified (at paras 54-60) the marked superiority of the Scottish system of investigating the deaths of a person in custody to the English arrangements. It is now crystal clear that the English coronial system, as at present constituted, is an inadequate vehicle in every case for the procedural obligations imposed on this country by ECHR Article 2. The difficulties exposed in the present case and the anxieties expressed by the editor of the leading text-book on coronial law, show vividly that both law and procedure are in serious need of reform.

However that may be, we saw no advantage in postponing the hearing of this appeal for six months or more before the decisions of the House of Lords on the Middleton and Sacker appeals were known. Nor, given the relative imminence of those appeals, did we see any merit in exploring the question whether Middleton was indeed decided per incuriam, as the Editor of Jervis suggests. Suffice it to say that the members of this court in Middleton would have been very well aware that the word “neglect” in coronial law was not to be equated with common law negligence. Indeed, Lord Woolf quoted at para 78 Lord Bingham’s ninth conclusion in the case of Jamieson, and at para 90 the sixth of the West London coroner’s submissions to his own court, each of which made this distinction very clear.

What the court in Middleton was anxious to achieve was the possibility of an inquest jury being able to enter a verdict which included a finding of systemic neglect in a broader range of circumstances than those contemplated by the approach laid down in Jamieson’s case, provided that no individual was named, if there was realistically no other way in which this country in the present state of the law might fulfil its Article 2 procedural obligations. The facts disclosed at the inquest might lead, as has often happened in the past, to charges of negligence being made in the civil courts. What this court decided was that a finding by a coroner’s jury of systemic neglect did not determine any question of civil liability. It was therefore permissible notwithstanding Rule 42.

In Amin the House of Lords was not directly concerned with the adequacy of our inquest procedures for Article 2 purposes, because the coroner in that case had decided not to hold an inquest. But it, too, was a case involving a death in custody, and the House of Lords robustly rejected the Court of Appeal’s distinction between different classes of such cases. This point of view is most vividly reflected in the speech of Lord Steyn (at para 50), with which Lord Hope agreed (at para 54). Lord Bingham, with whom the other four members of the House agreed, expressed a similar conclusion at paras 30-31:

“30.

The state owes a particular duty to those involuntarily in its custody … Reasonable care must be taken to safeguard their lives and persons against the risk of avoidable harm.

31.

The state’s duty to investigate … can fairly be described as procedural … But in any case where a death has occurred in custody it is not a minor or unimportant duty. In this country, … effect has been given to that duty for centuries by requiring such deaths to be publicly investigated before an independent judicial tribunal with an opportunity for relatives of the deceased to participate. The purposes of such an investigation are clear: 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 wrongdoing (if unjustified) is allayed; that dangerous practices and procedures are rectified; and 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.”

It follows from all this that as the law now stands:

(i)

There must be a full and effective inquiry into the death at the coroner’s inquest if this is realistically the only occasion on which the state will perform its procedural duty;

(ii)

It is open to a jury to return a verdict incorporating a finding of neglect in a broader range of circumstances than those contemplated by the approach laid down in Jamieson’s case if the verdict relates to systemic neglect;

(iii)

A letter written by a coroner pursuant to Rule 43 is not an adequate substitute, for Article 2 purposes, for a verdict by the jury in cases where a verdict of neglect is available on the evidence.

Before I turn back to the facts of the present case, it is worth considering a very recent decision of the European Court of Human Rights in McGlinchey v UK (Appln No 50390/99). Ms McGlinchey, like Mr Davies, was suffering heroin-withdrawal symptoms when she was admitted to prison. A week later she suffered a very major breakdown in her health and had to be admitted to hospital where she died three weeks later. The court at Strasbourg by a majority held that her treatment during her first week in prison amounted to inhuman and degrading treatment contrary to ECHR Article 3.

Unlike the present case, Ms McGlinchey’s case did not arise from a situation in which a prisoner was not seen by a doctor at all after her initial reception into prison. She was screened by a nurse on entry, and was seen by a doctor on her first, second and fourth full days in prison. There followed a weekend when a locum doctor attended the prison but did not see her. Her breakdown, like Mr Davies’s, occurred on a Monday, following a weekend. The Strasbourg court found that her condition was regularly monitored by medical and nursing staff, and that they took steps to respond to her withdrawal symptoms. The court’s censure seems to have been concentrated (see para 57 of the judgment) on the events of the weekend when she did not see a doctor at all, and when the nursing staff wrongly thought that her condition was improving (although she had lost a further 3 kilograms in weight in three days and was continuing to vomit) so that they did not summon a doctor or arrange for her admission to hospital.

Sir Nicolas Bratza dissented from this conclusion on the facts (“not without some hesitation”), but the judgment of the majority shows the concern now felt by the Strasbourg Court that prisoners who are evidently ill should be afforded an appropriate standard of medical care. The fact that the nurses on weekend duty at the prison hospital honestly believed that it was unnecessary to summon a doctor did not suffice to exculpate the United Kingdom from a finding that ECHR Article 3 had been violated.

Mr Blake QC, who appeared for Mrs Davies on the appeal, showed us the passages in the transcript of Dr Ralli’s evidence in which the coroner stopped him from giving evidence he would otherwise have given to the jury. I have already shown how his report disclosed his view that Nurse Spencer should have discussed the case with the duty doctor, and that she should have been able to move Darren to an area for closer supervision. He was also critical of the arrangements in the prison hospital in this respect, because in-patients were not monitored there by health care staff through the night. Because of the coroner’s ruling, the jury did not hear any of this evidence.

The significance of this prohibited evidence can be more effectively gauged against the background of evidence which the jury did receive. Dr Ralli explained to the jury that whenever there is a death in prison, a senior investigator from another prison establishment will conduct an investigation, and if medical issues are raised, a doctor or other healthcare professional will join the investigator’s team. He was performing this role in Darren Davies’s case.

The jury heard that in 2000 the Chief Inspector of Prisons had recommended that there should be three nurses on night duty at the prison each night, and that the Governor of the prison had considered this report and decided that it was perfectly satisfactory to have only one. The coroner told the jury that this evidence was not relevant, because Nurse Spencer had attended Darren quickly on each occasion when she was summoned.

Whether this issue would have been pursued if Dr Ralli had been allowed to give the prohibited evidence it is impossible to say. The jury was told by Dr Rahman that although the City hospital was just round the corner, a doctor on call might take an hour to get to the prison. Dr Ralli told the jury that in his own prison there were two nurses or healthcare staff on duty at night, so that if one of them had come away from a scene which was a bit unusual, the first thing they would do would be to discuss the matter and look at the prisoner’s notes together. He added that in Darren’s case, the presentation had been unusual on each occasion when Nurse Spencer visited him, yet she still decided on her own initiative that no immediate action was needed.

The way the matter was left to the jury was that they were not instructed to consider a verdict of systemic neglect at all. Mr Pascoe, the lead investigator, was content to tell the jury that Nurse Spencer’s decision was one of “medical/professional judgment”, and the coroner in due course was to give the jury the confused directions (see paras 32-36 above) to which I have already referred. There were just over 900 prisoners locked up in the prison at this time, of whom 75-80%, according to Dr Rahman, had some kind of drug problem, yet the jury were not invited to consider the adequacy of a system of basic medical care which left decisions as to whether the attendance of a doctor was required to a single nurse, who did not take a full history from the patient before forming her judgment, and did not have the opportunity of discussing the case with a professional colleague. Even if she had thought that Darren required closer observation, there was no room for him in the prison’s health care centre, and in any event (as Dr Ralli would have told the jury if he had been allowed to do so) his condition would not have been monitored by health care staff there through the night even if he had been moved there.

I have sympathy for the coroner because he gave his rulings before the decision of this court in Middleton elevated the importance of a verdict of systemic neglect in a case like this. I have sympathy for Moses J, too, because he was not able to consider the speeches in the House of Lords in the case of Amin or the judgment of the Strasbourg court in the case of McGlinchey. There had been a very thorough inquiry conducted over five days, and it followed a very thorough Prison Service investigation. It is understandable why the judge considered, on the law as it then stood, that it was not necessary and desirable to hold a further inquest.

As the law now stands, however, I do not consider that this judgment can stand. It is not a case in which any of the other procedures from the time to time suggested by the Strasbourg court would have been appropriate for ECHR Article 2 procedural purposes. Disciplinary procedures against Nurse Spencer (or anyone else) could not have been in question. With no dependency claim and with formidable problems on causation, nobody would seriously contemplate bringing a civil claim against the prison on behalf of Darren’s estate. It is the inquest, and the inquest alone, that has to carry the burden of fulfilling this country’s Convention obligations, and an inquest which did not canvas the issue of systemic neglect properly or at all did not perform that function.

For these reasons, I would allow this appeal and quash the inquisition.

Unless an inquiry is set up that performs the same function as an inquest but has more appropriate powers (see section 17A of the Coroners Act 1988) the coroner must now hold a new inquest (see section 8(1)(c)), the inquisition on the previous inquest having been quashed. It seems to me that it will be essential that he holds an early case management conference at which consideration can be given as to the best way to manage the giving of oral evidence, now that so many of the facts have already been fully investigated. The cause of death was agreed at the first inquest. The scope of the new inquiry is to determine whether systemic neglect was a contributory cause, and the evidence should be primarily directed at that issue. In that way the purpose of the new inquest (or inquiry), as identified by Lord Bingham in Amin (see para 52 above), can be most effectively fulfilled, and Darren’s family can feel that there has been a public investigation, as required by Convention law, which has been directed to the central issue in the case, and has not been diverted from it by an incorrect ruling and by errors in the coroner’s directions in the first inquest.

Moses J, while expressing sympathy with him in the difficulties of his task, found that the coroner’s summing-up to the jury was defective in the following three respects:-

(1)

he told the jury that a verdict of “neglect” in answer to the question “how did Mr Davies come by his death?” was very rare;

(2)

he failed to leave to the jury the question whether the conduct of Nurse Spencer constituted neglect which contributed to the death of Mr Davies;

(3)

he failed to leave to the jury the question whether any systemic failure on the part of the Prison Service constituted neglect which contributed to the death of Mr Davies.

There is no appeal from these decisions.

Mr Nicholas Blake QC submitted that the judge should also have held that the coroner was in error in excluding from the jury’s consideration the 6th – 8th points made by Dr Ralli in his independent report. In my view, Mr Blake’s submission on that matter is correct because those points would have been relevant if the jury were to be permitted to consider a verdict stating the cause of death to which neglect had contributed. This is a small point in the overall picture because it is unlikely that the judge’s ultimate conclusion would have been any different if he had found that the summing-up was defective in this respect also.

The judge decided that, despite the defects in the summing-up which he had identified, it was not necessary or desirable in the interests of justice to quash the verdict of the jury and to order a fresh inquest. He pointed out that the coroner had conducted a very full enquiry as to what had occurred to Darren Davies in custody and that the jury had heard an abundance of evidence as to the prison system. He noted that the coroner was satisfied that new nursing and drug team procedures had been put in place since the death of Mr Davies and that he had made a positive recommendation to the prison governor at Winson Green that procedures be introduced so as to ensure that a prisoner who arrived on Thursday or Friday (thus close to the week-end) would be dealt with in the same way as a prisoner who arrived earlier in the week. In the light of this, the judge concluded that there was nothing to be gained from another inquest.

The judge had the benefit of the decision of this court in R (Amin) v Home Secretary [2003] QB 581 in which this court declined to order an independent public inquiry into a death in prison because all the facts required to be exposed to the public had come into (or would shortly come into) the public domain. He did not have the advantage of the speeches of the House of Lords in the same case in which the decision of this court was reversed on 16th October 2003, [2003] UKHL 51, [2003] 3 WLR 1169.

The House of Lords was shocked to think that a death in custody should not be the subject of the most rigorous public examination. My Lord has quoted paragraph 31 of the speech of Lord Bingham of Cornhill at page 1185C, but it worth repeating:-

“The state’s duty to investigate is secondary to the duties not to take life unlawfully and to protect life, in the sense that it only arises where a death has occurred or life-threatening injuries have occurred . . . It can fairly be described as procedural. But in any case where a death has occurred in custody it is not a minor or unimportant duty. In this country, . . . effect has been given to that duty for centuries by requiring such deaths to be publicly investigated before an independent judicial tribunal with an opportunity for relatives of the deceased to participate. The purposes of such an investigation are clear: 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 wrongdoing (if unjustified) is allayed; that dangerous practices and procedures are rectified; and 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.”

If Amin had been decided in the House of Lords before Moses J came to give his decision in the present case, I do not believe that he would have decided that nothing could be gained from a further inquest in this case. While the coroner may have been right to say that a free-standing verdict of “death by neglect” in the abstract is not a verdict commonly seen, a verdict of “death caused by dehydration (or cardiac arrest) contributed to by neglect” is a verdict which the jury should have had the option of considering. If one of the purposes of an inquest is that culpable conduct should be “exposed and brought to public notice”, that will not satisfactorily be done merely by the hearing of “very full” evidence of what occurred, a verdict of accidental death and a recommendation by the coroner to the prison governor. The jury must be given a proper opportunity to say, if they think it right to do so on the evidence which they have heard, that the death was contributed to by neglect, in the somewhat special sense of “neglect” in this area of law.

As to that meaning of “neglect”, I have nothing to add to what has been said (paras 22, 28-9) by Brooke LJ with whose judgment I respectfully agree.

I would allow this appeal and make the order proposed by my Lord.

I agree with both judgments.