Mullholland v HM Coroner for St Pancras

This is an application for judicial review of the decision of the Inquest into the death of John David Bunker in which the jury on 23^rd November 2001 returned a verdict of accidental death. We have also before us an application under section 13 of the Coroners Act 1988 in which the applicant, a sister of the deceased, seeks a fresh inquest.

On 1^st February 2001 John Bunker, aged 46, was estranged from his family and of no fixed abode. At about 2 pm he visited Richer Sounds, a shop in Bloomsbury Way, London selling high-fi equipment and electrical goods. He was suspected by the staff of that shop of having stolen a DVD from the shop a couple of days earlier, in an incident of which there was, it seems, a record on CCTV. He was asked by the staff to leave the shop, and the staff then informed the manager Mr Hart when the manager returned to the premises. By that time Mr Bunker had gone down the street, but Mr Hart chased after him and caught him. There was a scuffle. Mr Bunker fell and struck his head. One passer-by, Adrienne Smith, heard a bang and a thud, and turned round to see John Bunker slipping down the wall with his back to the wall and his feet in the gutter. She ran part way back and called out to ask if he was alright, and did he need an ambulance. Mr Hart then told her to go to his shop and get help and telephone the police. She did as she was told, with the result that one of the shop assistants went with her to where the scuffle had occurred in Gilbert Place, and both the police and the ambulance were summoned. The 999 call was made at 2.29 p.m., and two plain clothes police officers, PC Mullally and PC Walker arrived about ten minutes later. They found Mr Hart holding down John Bunker, who was struggling to get up. John Bunker appeared to the officers to be drunk, and he had soiled himself. He was alleged to be a thief, so he was arrested on suspicion of theft, and handcuffed.

The ambulance arrived at 2.45 p.m., with Ruth Williams, a qualified ambulance technician. She spoke to the police officers and examined John Bunker. He was conscious, alert, had no difficulty in breathing, and had good colour. She did not recall knowing that he had been unconscious, and in fact Mr Hart had told the officers that there had been no loss of consciousness. John Bunker did not complain of nausea or vomiting. Ms Williams assessed his Glasgow coma scale test which revealed no abnormality. She found a small one-centimetre graze on his head, and nothing more, but offered to take him to hospital, an offer which was firmly declined.

The ambulance then left, and the police officers summoned a police van to convey John Bunker to the police station. Soon after the ambulance left another passer-by, Josephine Smith, saw John Bunker half slumped in a sitting position on the floor. His arms were raised to shoulder height, his head was slumped forward, he was, she thought, clearly distressed, and she was concerned for him. She stopped and spoke to the men who were with him, and was reassured when she found that they were police officers, but she was still uneasy about the ambulance having gone away leaving the man she considered to be in need of treatment.

The police van, driven by PC Donaldson, arrived and John Bunker was then put into the van and taken to Albany Street police station, which took another ten minutes or so. When he arrived at the police station he was taken to the custody suite, where he vomited, and Police Sergeant Clark, the custody officer, formed the view that John Bunker was in need of urgent medical attention. He instructed PC Mullally and PC Walker, who had brought John Bunker into the custody suite, to take him straight to the hospital. He was put back into PC Donaldson’s van, which had only been at the police station for about 5 minutes, and the van was then driven by PC Donaldson to the Royal Free Hospital, a journey taking about ten minutes. On arrival the officers in the van waited a short time for the other two officers, Mullally and Walker, to arrive by car, and they then took John Bunker into the hospital. PC Donaldson’s recollection was that the van’s involvement lasted about 45 minutes. The other two officers remained with John Bunker until he began to receive treatment, and the hospital records show treatment beginning with a triage time of 16.10. Unfortunately the treatment was unsuccessful and John Bunker died late on the following day. A post mortem examination was performed by Dr Rouse, who found that death was due to head injury.

The circumstances were such as to call for an inquest, and the inquest was originally fixed for August 2001, but it was given a later date, 21^st November 2001, to enable Carol Bunker, the sister of the deceased to obtain representation. On 14^th August 2001, her solicitors, the solicitors now acting for the claimant, wrote to the police seeking widespread disclosure. Thereafter, because Carol Bunker was unwell, the 21^st November 2001 date was vacated, and then restored. The application for restoration was made on 5^th November 2001, and it was restored on 8^th November 2001. On that date the Coroner’s Officer informed the claimant’s solicitors which witnesses were to be called, and supplied a copy of the medical report of a consultant neurosurgeon, Mr Dorward. On 14^th November 2001 the solicitors asked for seven other witnesses to be called, including Josephine Smith, four other passers-by, a staff member from Richer Sounds and a police officer. The post mortem report was disclosed on the following day, and on 16^th November 2001 the Coroner’s Officer advised the solicitors that all of the extra witness who had been asked for other than the police officer would be heard on 20^th November 2001, for that purpose the inquest starting half a day earlier than planned.

At the start of the inquest on 20^th November 2001 the Deputy Coroner made it clear that there were time constraints. He was only available for 2½ days at most (Tuesday afternoon, Wednesday and Friday) and neither he nor the court would be available the following week. He sought and received the assurance of counsel for Carol Bunker that the time available would be sufficient.

The identification witnesses were then called after which the Deputy Coroner said that although Josephine Smith had been asked to attend for various reasons she could not leave her family so he proposed to read her statement pursuant to Rule 37 of the Coroners Rules 1984, and he did so. There was no objection at that stage.

On the following day, 21^st November 2001, the Deputy Coroner advised counsel for Carol Bunker and counsel for the police, Miss Leek, that three witnesses on the original witness list would not be available – Mr Hart, who was located in Holland, Ruth Williams, who was on leave unwell and who had a family bereavement, and Police Sergeant Clark, who had recently had major surgery and had suffered a relapse making further surgery likely. The Deputy Coroner proposed to read all three statements and the statement of Mr Dorward pursuant to Rule 37. Miss Edmonds, for Carol Bunker, expressed regret at the absence of Mr Hart. The Deputy Coroner agreed, and in the event Mr Hart attended and was called. The statements of Ruth Williams, Sergeant Clark and Mr Dorward were read.

During the day there was discussion, in the absence of the jury, of the extent to which the police officers could be cross-examined by reference to Metropolitan Police Special Notice 37/97 Medical Care of Prisoners: Persons Ill or Injured, and the Deputy Coroner ruled as to what cross-examination he was prepared to allow.

When Dr Rouse gave evidence he was told by the Deputy Coroner that Mr Hart had described the deceased as having a two-stage fall, and he observed that these cases “often tend to be instantaneously fatal”. The period of lucidity and apparent normality he regarded as consistent with the injury. In answer to Miss Leek Dr Rouse said that a straightforward backward fall without the two stage impact does tend to result in deep unconsciousness and medical treatment tends to be of no use. He observed that “we tend to see a lot of these”. Miss Edmonds then asked if it was possible that if John Bunker had been taken to hospital immediately after the fall he could have survived. The doctor’s view was that it would not have made any difference.

At the end of the hearing on Wednesday 21^st November 2001 the Deputy Coroner received submissions as to the possible verdicts to be left to the jury, and he then adjourned to Friday 23^rd November 2001. During that interval the solicitors for Carol Bunker contacted Mr Gavalas, a consultant in Accident and Emergency Services at University College Hospital. When the hearing was resumed on Friday 23^rd November 2001 Miss Edmonds said that because of what Dr Rouse had said (which she to some extent misrepresented) “we have consulted yesterday a trauma consultant at UCH and we firmly believe that this evidence should and can be challenged”. She did not name the consultant, or indicate what he would say, but she asked for an adjournment. She went on to complain about the apparent time lapse between P.S. Clark’s recollection of the deceased leaving the police station, and the initiation of treatment at hospital; the statements of Josephine Smith, Ruth Williams and P.S. Clark having been read; and her own cross-examination having been restricted.

The Deputy Coroner pointed out that if the matter did not proceed to a conclusion it would have to be re-heard sometime towards the end of 2002. Miss Edmonds took instructions, but persisted in her application. Miss Leek adopted a neutral position, but pointed out that no police officer had been challenged as to the time of his involvement. The Deputy Coroner gave careful consideration to the application, but refused to adjourn. He then directed the jury, and there is no separate complaint about what he said to them.

After the verdict had been returned Mr Gavalas prepared a report dated 10^th December 2001. He did not, of course, have available a transcript of the evidence of Dr Rouse, so he understandably misrepresented it. In the summary of opinion his report reads –

Proceedings for judicial review were commenced on 21^st February 2002. The appeal under section 13 of the Coroners Act 1988 requires a fiat of the Attorney-General. That was granted on 15^th January 2003, and an order was then made that the two matters be heard together. Section 13, so far as material, provides that where this court is satisfied as respects a coroner’s inquest that (whether by reason of rejection of evidence, irregularity of proceedings, insufficiency of inquiry, the discovery of new facts or evidence or otherwise) it is necessary or desirable in the interests of justice that another inquest should be held then it can so order.

It is common knowledge that over the years a number of prisoners have died in custody, and coroners have been charged with the duty of allaying public anxiety by finding out precisely, as required by Rule 36(1)(b) of the Coroners Rules “how, when and where the deceased came by his death”. This is not in my judgment a comparable case. The facts speak for themselves. The deceased’s fatal injury was sustained when Mr Hart was struggling to detain him. Mr Hart immediately arranged for help to be summoned. The police and ambulance services attended. By then the deceased was plainly conscious and coherent and was reported not to have lost consciousness at all. There was no obvious sign of head injury. He had a small graze on his head. He was offered a hospital check and refused. That decision on his part probably delayed his arrival at hospital by 25 to 30 minutes, being the length of time waiting for the police van and the time spent conveying him to the police station before he was put back in the van to be taken to hospital. At the hospital he was released from arrest, having been under arrest for about 45 minutes, and he survived for another 30 hours or so. I have no doubt that this death has caused anxiety and grief to the family of the deceased, but it is not, like some of the cases to which we have been referred, a case where death in custody gives rise to understandable public concern.

The second general observation I must make is one often made in this court. An inquest is not an investigation into criminal or civil liability. Evidence may be given which is relevant to those issues, but the coroner has to be astute to ensure that before him or her the proceedings are properly conducted with a view to their own legitimate end.

In this case it is clear from the re-amended judicial review claim form, the appellant’s notice invoking section 13 of the 1988 Act and the skeleton argument that there are now five matters to be considered –

Rule 37, so far as material reads –

At the start of the inquest the Deputy Coroner warned counsel that some witnesses might not attend, saying “we are never sure who is going to appear until they actually appear”, and when he became aware of witnesses unavailability he passed that information on, as noted earlier in this judgment. It is said now that he should have done more to explore more why the witnesses could not attend, but the reasons given were on the face of them valid, and so long as no objection was raised it seems to me to be quite impossible to criticise the Deputy Coroner in any way. If objection had been raised before the statements were read no doubt some further enquiries might have been made, both as to the witnesses’ availability and as to why Miss Edmonds wanted them to attend. But even then it seems to me to be at least possible that the Deputy Coroner would have admitted one or more of the statements pursuant to Rule 37(2). For example, on the information available it seems highly unlikely that Sergeant Clark would have been in position to give evidence within a reasonable time.

I can deal with this matter briefly because Mr Simblet decided not to pursue it as a discrete point. In fact he said nothing about it until asked by the court, and in my judgment his reticence was understandable. I have read the passages in the transcript which are relied on as well the Special Notice 37/97. In my judgment the rulings made by the Deputy Coroner were plainly right. He permitted cross-examination as to what the witnesses did or did not do, and allowed them to be asked whether they knew of the notice, and what it advised in relation to their acts and omissions. Any further cross-examination in relation to the notice would not have been relevant, and would have distracted the jury.

Mr Simblet drew our attention to the statement of Police Sergeant Clark in which he says that the deceased arrived at the police station “at about 1500”, and to the report of Mr Dorward which says that the deceased “was brought to hospital by police arriving at 1633”. As the journey time from the police station to the hospital was estimated by PC Donaldson to be about 10 minutes there would seem to be about 1 hour 23 minutes unaccounted for and it is submitted that the Deputy Coroner did not do enough to explore what if anything was happening between 1500 and 1633.

In fact, as I have already explained when setting out the history as it emerges from the witnesses, it seems clear that neither Police Sergeant Clark nor Mr Dorward were entirely accurate as to time. A reliable starting point is the 999 call at 2.29 p.m. The London Ambulance Service record shows that the ambulance arrived at 1445 and the RTS time is recorded at 1500. That would seem to be when the ambulance left the scene. Only when it left did the police officers at the scene know that they needed a van to convey the deceased to the police station so, although PC Donaldson said that it was about 2.45 p.m. when he heard PC Mullally request a van the probability seems to be that it would have been at about 3 p.m. Thereafter, as PC Donaldson explained, the van’s involvement lasted about 45 minutes, so the deceased probably arrived at hospital at about 3.45 p.m. As already noted the hospital’s own records show a triage time of 16.10, so the deceased may have been waiting at the hospital with the officers for up to 25 minutes. Any time spent waiting in an out-patient department is regrettable, but it has to be appreciated that the deceased was not obviously in need of urgent attention. The officers had been told that he had not lost consciousness. He had been examined in their presence after he had defecated by a qualified ambulance technician who found no sign of significant head injury. Thereafter he had vomited, but at the hospital he was, according to PC Mullally, trying to get to his feet, speaking and was seemingly alert and conscious. PC Walker thought that at the hospital the condition of the deceased was deteriorating, but he did not want to be there. The officer was asked for how long when they got to the hospital they waited in the triage area and he said “something up to ten minutes”. That may have been an underestimate, but what to my mind is clear is that the relevant witnesses were produced to deal with the period between 1500 and 1633, and that when their evidence is analysed there is no large time gap to be explained.

Mr Simblet submitted that when on 23^rd November 2001 Miss Edmonds applied for an adjournment the Deputy Coroner should have granted her request, even though she did not name the doctor who had been consulted or indicate what he might say. She drew attention also to the alleged time gap before treatment, and complained for the first time of some statements of witnesses having been read, as well as of the restriction placed upon her cross-examination. Mr Simblet submits that in the circumstances the Deputy Coroner should have realised that it would be just and proper to start again, and that his duty to make a proper inquiry must take precedence over administrative convenience. In my judgment it is really clear beyond argument that on the material before him the Deputy Coroner was right to decide as he did. If the court and the Deputy Coroner had been available in the following week he would have been able to consider the possibility of adjourning over the weekend to enable the “trauma consultant at UCH” to produce a report, and perhaps to testify, but that option was not available, and there was no reason to think that the interests of justice would be best served by discharging the jury and starting again in 12 months time when, in all probability, Mr Hart would not attend.

That means that in my judgment none of the grounds relied upon in support of the application for judicial review have been substantiated, and accordingly I would dismiss that application.

That leaves only the question of whether the impact of the fresh evidence is such that it is necessary and desirable in the interests of justice that there should be another inquest. In summary it amounts to this, that if the deceased had been taken straight to hospital soon after he was injured, if those at the hospital had received a full and accurate history (including if it be the case, that there had been a period of loss of consciousness) and if he had then received appropriate treatment, there would have been “at least some chance of survival” (per Mr Gavalas). Mr Watkins described it as a 51% chance of survival if he had received prompt, competent treatment, but with a likelihood of a disability. In other words if everything had worked in favour of optimum treatment the chances of survival would have been better than envisaged by Dr Rouse.

Our attention was invited to a number of authorities beginning with In re Rapier, deceased [1988] 1 QB 26 where it was sought to obtain a fresh inquest in respect of young prisoner found hanging in a cell, in the light of a report which suggested that he may have been sniffing solvents. As to the proper approach to be adopted where a fresh inquest is sought Woolf LJ at 35 cited from a decision of Talbot J –

In R v North Humberside Coroner ex parte Jamieson [1995] QB 1 the deceased prisoner hanged himself. He was a known suicide risk, but the Coroner directed the jury not to return a verdict which included any reference to lack of care. Sir Thomas Bingham MR reviewed the authorities and at 23G set out his conclusions, beginning with the proposition that an inquest is a fact-finding inquiry to establish reliable answers to limited questions, the fourth and usually most contentious of which is how (i.e. by what means) the deceased came by his death. The Master of the Rolls continued –

In R v HM Coroner for Coventry ex parte O’Reilly [1996] 35 BMLR 48 the inquest was flawed because relevant material was withheld from the jury, factual issues were not addressed, and the Coroner refused to leave open the possibility of a verdict of lack of care or neglect. The deceased had been in custody and a verdict of accidental death was returned, but Newman J at 54 said that he was not satisfied that enough had been done to ascertain whether there was a traumatic cause to the deterioration of the deceased which took place while he was in a police cell. The court felt unable to determine whether a different verdict would emerge from a fresh inquest, but because the inquiry had been inadequate a fresh inquest was ordered.

That decision can be compared with the decision of this court in the unreported case of Re Captain Christopher John Kelly 14^th June 1996, to which our attention has been drawn since the conclusion of the hearing before us. The deceased was killed by “friendly fire” during a night exercise in Kenya. A verdict of accidental death was returned, and a fresh inquest was sought particularly in the light of a statement from a fellow officer, but the court was not persuaded that the interests of justice called for a fresh inquest.

In R v Coroner ex parte Douglas-Williams [1999] 1 All E R 344 the deceased died in custody. The jury returned a verdict of accidental death. It was contended in the Court of Appeal that the coroner’s direction as to unlawful killing had been confusing, and that he was wrong not to leave open the possibility of a verdict of neglect. At 347 Lord Woolf MR drew attention to the fact that when section 13 is invoked a fresh inquest can only be ordered where it is “necessary or desirable in the interests of justice”. Those are critical words. In the instant case it was not the statutory power which was relied upon, but judicial review, and as to what verdict should be left to the jury Lord Woolf said at 349a –

In R v HM Coroner ex parte Chief Constable of South Wales [1999] 164 JP 191 the deceased was found in the street having taken drink and drugs. At a police station he was seen by a doctor who found him fit to be detained, but he died next morning. A jury recorded a verdict of “drug abuse contributed to by neglect”. In the Administrative Court it was contended on behalf of the Chief Constable that there was no evidence of neglect to be left to the jury. Jackson J rejected that submission, but for two reasons he concluded that the interest of justice did require that a fresh inquest be held. Those reasons at 199A were –

The requirements of gross negligence and causation were re-considered by this court in R (on the application of N) v Coroner for the City of Liverpool [2001] EWHC Admin 922. When the deceased was arrested he was seen to swallow something. He was examined by a doctor and denied that he had swallowed drugs, but his condition later deteriorated and although rushed to hospital he died. At the inquest the coroner refused to admit the evidence of a professor who was highly critical of the conduct of the doctor who had seen the deceased, and said that an antidote should have been prescribed. The coroner found insufficient evidence of neglect to leave that issue to the jury, and they returned a verdict of death by misadventure. Giving the first judgment Sullivan J said at paragraph 50 that the professor should have been called even though it might well have led to a further adjournment “measured in weeks or perhaps one to two months”. The coroner’s principal reason for refusing to call the professor was that his report was concerned on its face not with neglect applying the Jamieson test, but with medical negligence applying the Bolam test, and at paragraph 52 to 56 Sullivan J said –

Mr Simblet naturally places some reliance upon that decision, but bearing in mind that Jamieson was a decision of the Court of Appeal setting out principles which have subsequently been approved and applied, for example by Lord Woolf MR in Douglas-Williams at 347j, it is clear that, subject to the impact of the Human Rights Act 1998 those principles remain unimpaired. That impact was considered by the Court of Appeal in relation to two deaths in custody in R (Amin) v Home Secretary [2002] 3 WLR 505 where the focus was on Article 2 of the European Convention on Human Rights. At paragraphs 79 to 92 Lord Woolf CJ, giving the judgment of the court, said –

Mr Simblet submits that in the light of the fresh evidence of Mr Gavalas and Mr Laurence Watkins the evidence of Ms Williams and the treatment at the hospital should be re-evaluated. It would not, he submits, be necessary to identify any person in default (although I find that difficult to understand in relation to the criticism of the ambulance crew). The question to be asked, he submits, is whether there was a gross failure, and if so whether it may have been causative of death. There is, it is said, a sufficient possibility of a different verdict to make it right for this court to set aside the verdict already returned.

Mr Béar submits, and I accept, that the evidence of Miss Williams in her statements is clear and uncontradicted. Furthermore, as Miss Leek points out, the fresh evidence is built upon an unrealistic foundation. The reality was that police officers at the scene were told that the deceased had not lost consciousness, and consequently that was what Miss Williams was told. The deceased declined to go to hospital. Only to a very limited extent could he be regarded as vulnerable. There was no obvious reason to try to persuade him to go to hospital if he did not want to go, and so it is irrelevant to consider what would have happened if he had gone straight there. As to what happened when he eventually did go to hospital, it must again be recognised that the hospital staff would only have received a history which denied any period of unconsciousness, because that was what the police officers understood to be the position. Whether with a limited and perhaps even misleading history Mr Gavalas and Mr Watkins would still be critical of what was done I do not know, but I certainly do not detect a level of criticism capable of supporting a finding of gross negligence in the system, as opposed to on the part of any individual, leaving aside the problem of showing that the treatment actually administered or the lack of appropriate treatment was causative of death. If there are grounds for complaint about the way in which the deceased was dealt with after his arrival at the hospital that, as it seems to me, is a matter for litigation in the civil courts, and I am far from satisfied that it is necessary or desirable in the interests of justice that another inquest should be held. I would therefore dismiss both the claim for judicial review and the application for relief under section 13 of the Coroners Act 1988.

As to costs the coroner should in my view recover his costs both of the abortive hearing before Crane J and of the hearing in this court. I would not make any order in respect of the costs of the Metropolitan Police Commissioner, and as the claimant is publicly funded the extent of her liability to pay costs must be considered at a detailed assessment by a costs judge.

I agree.