Sacker v HM Coroner for the County of West Yorkshire

Mr Gordon QC, for the claimant, submits that the provisions of Article 2 of the Convention, as now construed in Middleton, did require the Coroner to leave to the jury the opportunity to state, if they saw fit, that systemic neglect had contributed to the deceased taking her own life. The relevance of systemic neglect, as explained in the ECHR, had not been considered in Jamieson which pre-dated the 1998 Act. In exercising his powers under Rule 43 to write to the Director of the Prison Service in the terms he did, the Coroner was acknowledging the possibility of systemic neglect. By virtue of Middleton (paragraph 92) the Coroner was required to exercise a judgment as to whether a finding on neglect could serve to reduce the repetition of the circumstances giving rise to the death. Applying the law as it was then understood to be, the Coroner exercised no such judgment. It is conceded that for neglect to form any part of the verdict, it was necessary to establish a clear and direct causal connection between the conduct relied on and the cause of death (Jamieson proposition 12). It is submitted that the Coroner did not address himself to that issue either. Had he done so, the connection was clear.

For the Coroner, Mr Findlay, submits that the verdict should stand in its present form. He submits first, that the claimant should not be permitted to take a point on systemic neglect having failed to take it before the Coroner. In my view, on the pre-Middleton state of the law, it is not surprising that the point was not taken. Secondly, Mr Findlay submits that the action taken by the Coroner under Rule 43, if acted upon, amounts to compliance with the Article 2 duty upon the State. Thirdly, he submits that the alleged failures did not have the necessary causal connection with the cause of death. He refers to the absence of evidence of psychiatric illness and to the absence of evidence that events would have taken a different course had the form F2052SH procedure been followed correctly.

In my judgment, the case turns upon an analysis of the procedure required by the form, the procedure followed, and its relevance to the death. The form is long and complex and the procedures stated in it provide clear guidance as to what is to happen if the form is opened in relation to a prisoner. The prisoner’s particulars are to be stated on the cover of the form and the “initiating member of staff” is required to complete page 1 by answering the questions “Why are your concerned?”, “What does the prisoner say about his/her situation?” and “What do you think should be done to help the prisoner?” The form is then to be passed to the unit manager. One page of the form describes “How the F2502SH system works”, another provides “Guidance for staff” and other pages, under the headings “Initial action by residential unit manager” and “Record of case review” are to be filled in as appropriate. Provision is made for a “Health/care assessment”, a “Discharge report” and a “Daily supervision and support record”.

Under the heading “Guidance for staff” it is stated that a case review should generally be held within 72 hours of the form being raised (unless the prisoner is admitted to the health care centre) and prior to discharge from the health care centre. “Ideas for a support plan” include, as suggestions, the allocation of a personal officer or key worker, a shared cell, in-cell hobbies and involvement in activities. The plan is required to be specific about action to be taken, when and by whom. Provision is made for closing the form when the prisoner appears to be coping satisfactorily. It is provided that a case review shall be held when closing the form and reasons for closure should be recorded.

The initiating officer, PCO J Clayton, answered the questions on page 1 on 4 August noting that the prisoner was very depressed and recording her as saying that “if she goes back to prison today she will do herself in”. Under the heading “Health care assessment” Dr Spivack reported on 5 August: “Not suicidal or thinking of self harm. Was reaction to failure to get bail. Compos mentis. I feel she is manipulative.” “Return to residential unit” was recommended. The daily supervision and support record was maintained by members of staff and the entries do not appear to have been such as would give rise to concern. No entries are made on the page entitled “Initial action by residential unit manager” but the form provides that the page does not apply when the prisoner is referred direct to the health care centre, as Ms Creamer was. No entries appear on the page entitled “Record of case review”. There is no evidence of a case review prior to discharge from the health care centre.

Because there may be a fresh inquest, I keep my comment on the procedure followed, as compared with the procedure provided by the form, to a minimum. It appears clear that there should have been a case review no later than the discharge of the deceased from the health care centre on 5 August. Such case review would have included a “Support plan”, suggestions for which are stated in the printed form. Had a decision been taken to close the form, the requirement for a case review would also have arisen.

The Coroner’s letter to the Director General establishes that there was evidence that Dr Spivack did not fully understand the F2052SH system. The procedure provided by the form was not in fact followed. While there was evidence of what is described in Middleton as “system neglect”, from the contents of his letter it is also clear that, in the Coroner’s view, action should be taken, in relation to the alleged neglect, and within the meaning of Rule 43, to prevent the occurrence of similar fatalities. Had the Coroner had the guidance given in Middleton, it is highly likely that he would have allowed the jury the opportunity to add a rider to their verdict, if they saw fit, referring to neglect. It cannot in my judgment be said that the required causal link between the alleged neglect and the cause of death is absent. Measures may well have been taken, had the procedure in the form been followed, which arguably would have prevented the death.

In my judgment, it follows from the approach laid down in Middleton that the opportunity to add a rider referring to neglect should have been given to the jury and the failure to give it amounts to a defect which requires that the inquisition be quashed. There is a real possibility that a different verdict would have been reached had the jury been directed in accordance with Middleton and the interests of justice require a fresh inquest. This Court is bound by Middleton and it follows from the reasoning in Middleton that action under Rule 43 does not in circumstances such as the present provide compliance with Article 2.

I should wish respectfully to express my reservations as to the appropriateness of the course the law has taken by its promotion of the neglect rider at inquests as the means of vindicating Article 2. While the decisions of the ECHR do include references, for example, to “the identification and punishment of those responsible for the deprivation of life” (Keenan v United Kingdom (2001) 33 EHRR 913) and to the “widest exposure possible” of a series of failings by public bodies and servants (Edwards, paragraph 83), the emphasis is upon the provision of an effective investigation appropriate to the circumstances of the death, its form differing with the circumstances. Flexibility is required (Jordan, Edwards), for example as between the procedure where there have been alleged killings or infliction of treatment contrary to Article 3 of the Convention (torture and inhuman or degrading treatment) and other failings by the authorities (Z v United Kingdom (2001) 34 EHRR 97), all cases referred to in Middleton. Vindication of Article 2 in system cases such as the present is surely in effective measures to prevent repetition.

Considered in that context, it is relevant that the function of and the procedures at an inquest are circumscribed in the Coroners Rules 1984, by, for example the limited matters to which under Rule 36 the proceedings and evidence may be directed, the provision in Rule 40 that “no person shall be allowed to address the Coroner or the jury as to the facts” and the provisions of Rule 42 already cited. These limitations are recognised in the propositions stated in this Court in Jamieson and, to some extent, in Middleton itself. I have no doubt that Coroners are very conscious of them. I do respectfully question whether, given present procedures, an inquest is the appropriate forum in which to consider the issue of systemic neglect, for the purpose of vindicating Article 2, in cases such as the present.

I acknowledge the importance of giving the beginnings of justice to the bereaved, the expression used in Middleton (paragraph 62), as a function of the inquest. However, the evidence called and the scrutiny it is given are necessarily limited. The constraints upon any debate at the inquest upon systems of management and systems of work, whether in prisons, hospitals or the workplace, including the prohibition on addressing the Coroner or the jury as to the facts, are such as to be likely to render the remedy ineffectual or worse.

The Court does not know the full effect of the Coroner’s action under Rule 43 but that action would appear, in present circumstances, to be a stronger affirmation of the right to life, with its requirement of effective investigation into a death. Moreover, given the context in which they operate, the Coroner’s jury are ill-equipped to identify and particularise the systemic neglect which they may believe to be present or even to decide whether they should particularise. Some may have been impressed, as suggested by counsel, with the presence of the curtain, others the lack of company (if indeed those matters go to system) and others with the more general consideration raised in the Coroner’s letter. Reasons are not required.

What Mr Gordon seeks is a rider stating: “neglect in failing to instruct doctor in use of form 2052SH and system”. As a means of preventing repetition, I do question whether that, if achieved, adds significantly to the Coroner’s action under Rule 43. There is, with respect, much force in Sir Thomas Bingham MR’s proposition 13 in Jamieson: “It is for the Coroner alone to make reports with a view to preventing the recurrence of a fatality. That is the effect of Rules 36(2) and 43.” Unless and until the role of inquests and the procedures under which they are conducted are revised, the neglect rider in itself may not in many cases, in my respectful view, be a beneficent way of discharging the duty under Article 2, with the emphasis the Article places, as construed, on the need to prevent repetition and on flexibility of approach.

The verdict complained of was announced on 12 October 2001 and the application for judicial review not filed until 25 April 2002. Tucker J refused permission to extend the time within which to bring the application on the ground that it was not brought promptly and there were no proper reasons for failing to bring the application promptly and within three months, as required by CPR 54.5. The judge did not appear to accept that the time taken in obtaining public funding was a relevant factor in deciding whether to extend time. In that he was in my judgment wrong (R v Stratford-upon-Avon District Council ex parte Jackson [1985] 1 WLR 1319) and this Court may exercise a fresh discretion.

Given the unusual combination of circumstances in this case, I would extend time:

The applicant’s legal advisers cannot be criticised, in the absence of knowledge of Middleton, for not advising the applicant to apply for judicial review.

The judgment at first instance in Middleton (14 December 2001) came to the attention to the applicants solicitor on 20 December 2001.

Application for public funding was made on 21 December, counsel having advised promptly.

Strenuous efforts were made to secure public funding and overcome the obstacles presented.

The certificate of public funding was received on 22 April 2002 and the claim form issued within three days.

The point which arises is one of considerable public interest as well as of importance to the applicant.

The re-opening of the issue is not detrimental to good administration, though the concern to those involved in the inquest must also be recognised.

This is not a case where the conduct of the applicant or of her legal advisers can be criticised. They have not been inactive.

It was for those reasons that, at the end of the hearing, the Court granted the extension of time and permission to appeal to this Court. It was also indicated that the Court would decide the case on the merits rather than remit the case to the High Court. For the reasons given in this judgment, I would allow the appeal, quash the inquisition and order a fresh inquest.

I agree.

I also agree.