Judgments - Regina v. Her Majesty's Coroner for the Western District of Somerset (Respondent) and another (Appellant) ex parte Middleton (FC) (Respondent)

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    25.  The 1988 Act recognises that a death which is the subject of an inquest may also be the subject of criminal proceedings, and also recognises the general undesirability of investigating publicly at an inquest evidence pertinent to a forthcoming criminal trial. In a departure from previous practice, section 11(6) of the Act provides:

    "At a coroner's inquest into the death of a person who came by his death by murder, manslaughter or infanticide, the purpose of the proceedings shall not include the finding of any person guilty of the murder, manslaughter or infanticide; and accordingly a coroner's inquisition shall in no case charge a person with any of those offences."

    Thus the inquest jury may no longer perform its former role as a grand jury. Section 16 of the Act (and rules 27 and 28 of the Rules) make provision for the adjourning of an inquest when criminal proceedings are or may be pending on certain specified charges or in certain specified circumstances (but not solely because any criminal proceedings arising out of the death of the deceased have been instituted: rule 32 of the Rules). After the conclusion of criminal proceedings the coroner may resume the adjourned inquest "if in his opinion there is sufficient cause to do so" (section 16(3)). Section 17A makes provision for the adjourning of an inquest when a public inquiry into a death is to be conducted or chaired by a judge. A coroner may only resume an inquest so adjourned "if in his opinion there is exceptional reason for doing so", and then subject to conditions (section 17A (4)).

    26.  The Coroners Rules 1984 have effect as if made under section 32 of the 1988 Act, which gives the Lord Chancellor, with the concurrence of the Secretary of State, a wide power to make rules for regulating the practice and procedure at inquests and to prescribe forms for use in connection with inquests. The 1984 Rules prescribe a hybrid procedure, not purely inquisitorial or purely adversarial. On the one hand, notice of the inquest must be given to the next-of-kin of the deceased and a widely defined group of other interested parties (rule 19), who are entitled to examine witnesses either in person or by an authorised advocate (rule 20); witnesses are privileged against self-incrimination; notice must be given to, and attendance facilitated of, persons whose conduct is likely to be called into question (rules 24 and 25). On the other hand, the coroner calls and first examines all witnesses, the representative of a witness questioning him last (rule 21); no person is allowed to address the coroner or the jury as to the facts (rule 40); and there is no particularised charge or complaint as in criminal or civil proceedings. In addition to examining the witnesses the coroner (rule 41) sums up the evidence to the jury and directs them as to the law, drawing their attention to rules 36(2) and 42. Rule 43 provides:

    "A coroner who believes that action should be taken to prevent the recurrence of fatalities similar to that in respect of which the inquest is being held may announce at the inquest that he is reporting the matter in writing to the person or authority who may have power to take such action and he may report the matter accordingly."

    Attention should be drawn to two important rules. The first of these, rule 36, provides:

    "(1)  The proceedings and evidence at an inquest shall be directed solely to ascertaining the following matters, namely -

    (a)  who the deceased was;

    (b)  how, when and where the deceased came by his death;

    (c)  the particulars for the time being required by the Registration Acts to be registered concerning the death.

    (2)  Neither the coroner nor the jury shall express any opinion on any other matters."

    The second, rule 42, provides:

    "No verdict shall be framed in such a way as to appear to determine any question of -

    (a)  criminal liability on the part of a named person, or

    (b)  civil liability."

    27.  Rule 60 provides that the forms set out in Schedule 4 may be used for the purposes for which they are expressed to be applicable, with such modifications as circumstances may require. Schedule 4 includes, as form 22, a model form of inquisition. This suggests that, when recording the conclusion of the jury as to the death, one or other of certain forms should be adopted. The form provides that a finding that "the cause of death was aggravated by lack of care/self-neglect" should be added only where the finding is of a death caused by natural causes, industrial disease, dependence on or abuse of drugs, or want of attention at birth. In the case of murder, manslaughter or infanticide the suggested form of conclusion is that the deceased was "killed unlawfully".

    28.  Remarkably, as it now seems, the Court of Appeal made no reference to the European Convention in Ex p Jamieson, and the report does not suggest that counsel referred to it either. Counsel for Mrs Middleton criticised the reasoning of that decision, but it appears to the committee to have been an orthodox analysis of the Act and the Rules and an accurate, if uncritical, compilation of judicial authority as it then stood. Thus emphasis was laid on the function of an inquest as a fact-finding inquiry (page 23, conclusion (1)). Following R v Walthamstow Coroner, Ex p Rubenstein (19 February 1982, unreported), R v HM Coroner for Birmingham, Ex p Secretary of State for the Home Department (1990) 155 JP 107 and R v HM Coroner for Western District of East Sussex, Ex p Homberg (1994) 158 JP 357, the Court of Appeal interpreted "how" in section 11(5)(b)(ii) of the Act and rule 36(1)(b) of the Rules narrowly as meaning "by what means" and not "in what broad circumstances" (page 24, conclusion (2)). It was not the function of a coroner or an inquest jury to determine, or appear to determine, any question of criminal or civil liability, to apportion guilt or attribute blame (page 24, conclusion (3)). Attention was drawn to the potential unfairness if questions of criminal or civil liability were to be determined in proceedings lacking important procedural protections (page 24, conclusion (4)). A verdict could properly incorporate a brief, neutral, factual statement, but should express no judgment or opinion, and it was not for the jury to prepare detailed factual statements (page 24, conclusion (6)). It was acceptable for a jury to find, on appropriate facts, that self-neglect aggravated or contributed to the primary cause of death, but use of the expression "lack of care" was discouraged and a traditional definition of "neglect" was adopted (pages 24-25, conclusions (7), (8) and (9)). Where it was found that the deceased had taken his own life, that was the appropriate verdict, and only in the most extreme circumstances (going well beyond ordinary negligence) could neglect be properly found to have contributed to that cause of death (pages 25-26, conclusion (11)). Reference to neglect or self-neglect should not be made in a verdict unless there was a clear and direct causal connection between the conduct so described and the cause of death (page 26, conclusion (12)). It was for the coroner alone to make reports with a view to preventing the recurrence of a fatality (page 26, conclusion (13)). Emphasis was laid on the duty of the coroner to conduct a full, fair and fearless investigation, and on his authority as a judicial officer (page 26, conclusion (14)).

    29.  How far, then, does the current regime for conducting inquests in England and Wales match up to the investigative obligation imposed by article 2?

    30.  In some cases the state's procedural obligation may be discharged by criminal proceedings. This is most likely to be so where a defendant pleads not guilty and the trial involves a full exploration of the facts surrounding the death. It is unlikely to be so if the defendant's plea of guilty is accepted (as in Edwards), or the issue at trial is the mental state of the defendant (as in Amin), because in such cases the wider issues will probably not be explored.

    31.  In some other cases, short verdicts in the traditional form will enable the jury to express their conclusion on the central issue canvassed at the inquest. McCann has already been given as an example: see paragraph 14 above. The same would be true if the central issue at the inquest were whether the deceased had taken his own life or been killed by another: by choosing between verdicts of suicide and unlawful killing, the jury would make clear its factual conclusion. But it is plain that in other cases a strict Ex p Jamieson approach will not meet what has been identified above as the Convention requirement. In Keenan the inquest verdict of death by misadventure and the certification of asphyxiation by hanging as the cause of death did not express the jury's conclusion on the events leading up to the death. Similarly, verdicts of unlawful killing in Edwards and Amin, although plainly justified, would not have enabled the jury to express any conclusion on what would undoubtedly have been the major issue at any inquest, the procedures which led in each case to the deceased and his killer sharing a cell.

    32.  The conclusion is inescapable that there are some cases in which the current regime for conducting inquests in England and Wales, as hitherto understood and followed, does not meet the requirements of the Convention. This is a conclusion rightly reached by the judge in this case (see paragraph 44 below) and by the Court of Appeal both in the present case (see paragraph 44 below) and in cases such as R (Davies) v HM Deputy Coroner for Birmingham [2003] EWCA Civ 1739 (2 December 2003, unreported), paragraph 71.

    33.  Question (3) Can the current regime governing the conduct of inquests in England and Wales be revised so as to meet the requirements of the Convention, and if so, how?

    34.  Counsel for the Secretary of State rightly suggested that the House should propose no greater revision of the existing regime than is necessary to secure compliance with the Convention, even if it were (contrary to his main submission) to reach the conclusion just expressed. The warning is salutary. There has recently been published "Death Certification and Investigation in England, Wales and Northern Ireland: The Report of a Fundamental Review" (June 2003, Cm 5831). Decisions have yet to be made on whether, and how, to give effect to the recommendations. Those decisions, when made, will doubtless take account of policy, administrative and financial considerations which are not the concern of the House sitting judicially. It is correct that the scheme enacted by and under the authority of Parliament should be respected save to the extent that a change of interpretation (authorised by section 3 of the Human Rights Act 1998) is required to honour the international obligations of the United Kingdom expressed in the Convention.

    35.  Only one change is in our opinion needed: to interpret "how" in section 11(5)(b)(ii) of the Act and rule 36 (1)(b) of the Rules in the broader sense previously rejected, namely as meaning not simply "by what means" but "by what means and in what circumstances".

    36.  This will not require a change of approach in some cases, where a traditional short form verdict will be quite satisfactory, but it will call for a change of approach in others (paragraphs 30-31 above). In the latter class of case it must be for the coroner, in the exercise of his discretion, to decide how best, in the particular case, to elicit the jury's conclusion on the central issue or issues. This may be done by inviting a form of verdict expanded beyond those suggested in form 22 of Schedule 4 to the Rules. It may be done, and has (even if very rarely) been done, by inviting a narrative form of verdict in which the jury's factual conclusions are briefly summarised. It may be done by inviting the jury's answer to factual questions put by the coroner. If the coroner invites either a narrative verdict or answers to questions, he may find it helpful to direct the jury with reference to some of the matters to which a sheriff will have regard in making his determination under section 6 of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976: where and when the death took place; the cause or causes of such death; the defects in the system which contributed to the death; and any other factors which are relevant to the circumstances of the death. It would be open to parties appearing or represented at the inquest to make submissions to the coroner on the means of eliciting the jury's factual conclusions and on any questions to be put, but the choice must be that of the coroner and his decision should not be disturbed by the courts unless strong grounds are shown.

    37.  The prohibition in rule 36(2) of the expression of opinion on matters not comprised within sub-rule (1) must continue to be respected. But it must be read with reference to the broader interpretation of "how" in section 11(5)(b)(ii) and rule 36(1) and does not preclude conclusions of fact as opposed to expressions of opinion. However the jury's factual conclusion is conveyed, rule 42 should not be infringed. Thus there must be no finding of criminal liability on the part of a named person. Nor must the verdict appear to determine any question of civil liability. Acts or omissions may be recorded, but expressions suggestive of civil liability, in particular "neglect" or "carelessness" and related expressions, should be avoided. Self-neglect and neglect should continue to be treated as terms of art. A verdict such as that suggested in paragraph 45 below ("The deceased took his own life, in part because the risk of his doing so was not recognised and appropriate precautions were not taken to prevent him doing so") embodies a judgmental conclusion of a factual nature, directly relating to the circumstances of the death. It does not identify any individual nor does it address any issue of criminal or civil liability. It does not therefore infringe either rule 36(2) or rule 42.

    38.  The power of juries to attach riders of censure or blame was abolished on the recommendation of the Report of the Departmental Committee on Coroners under the chairmanship of Lord Wright (Cmd 5070, 1936). It has not been reintroduced. Juries do not enjoy the power conferred on Scottish sheriffs by the 1976 Act to determine the reasonable precautions, if any, whereby the death might have been avoided (section 6(1)(c)). Under the 1984 Rules, the power is reserved to the coroner to make an appropriate report where he believes that action should be taken to prevent the recurrence of fatalities similar to that in respect of which the inquest is being held. Compliance with the Convention does not require that this power be exercisable by the jury, although a coroner's exercise of it may well be influenced by the factual conclusions of the jury. In England and Wales, as in Scotland, the making of recommendations is entrusted to an experienced professional, not a jury. In the ordinary way, the procedural obligation under article 2 will be most effectively discharged if the coroner announces publicly not only his intention to report any matter but also the substance of the report, neutrally expressed, which he intends to make.

The present case.

    39.  Colin Campbell Middleton took his own life by hanging himself in his cell at HMP Horfield on 14 January 1999. He had been in custody since, aged 14, he was convicted in April 1982 of murdering his eighteen-month old niece.

    40.  His career in prison was uneven, periods of progress being interrupted by setbacks, some of his own making, some attributable to the hostility of fellow-prisoners. After trial periods in open prisons in 1993, 1994 and 1996 he was transferred to Horfield where, in November 1998 he harmed himself seriously. A self-harm at risk form (F2052SH) was then opened, but closed a few days later. There was evidence that he was depressed, and he was receiving medication at the time of his death. On 11 January 1999 he wrote to the Wing Governor, unhappy about his status and referring to his mental illness. He spoke of suicide to another prisoner who may, or may not, have passed on this information to the authorities. Although he was aged only 30, he had spent more than half his life in custody.

    41.  The verdict reached at a first inquest was quashed for want of sufficient enquiry, and a second inquest was held over three days in October 2000, when oral evidence was received from eleven witnesses and written evidence from a further seven. It is accepted by Mrs Middleton and the family of the deceased that at this inquest the issues surrounding the death were thoroughly, effectively and sensitively explored.

    42.  At the end of the evidence the coroner ruled that the issue of "neglect" should not be left to the jury. But he told the jury that if they wished to do so they could give him a note regarding any specific areas of the evidence about which they were concerned, and he would consider the note, which would not be published, when considering exercise of his power under rule 43.

    43.  The jury found the cause of death to be hanging and returned a verdict that the deceased had taken his own life when the balance of his mind was disturbed. The jury also gave the coroner a note which communicated the jury's opinion that the Prison Service had failed in its duty of care for the deceased. The family asked that the note should be appended to the inquisition, but the coroner declined to do so. The contents of the note remained private until, in the course of these proceedings, two points made by the jury were revealed. As the judge put it, the jury

    "(a)  expressed concern that a form F2052SH had been closed by two officers who had no prior knowledge of Mr Middleton; and

    (b)  expressed their belief that a letter of 11 January 1999 written by him contained sufficient information to warrant an F2052SH being opened."

    In exercise of his power under rule 43, the coroner wrote a full letter to the Chief Inspector of Prisons, drawing attention to the jury's point (a) and to the jury's noting of "a failure in the prison's responsibilities towards Middleton and a total lack of communication between all grades of prison staff". The coroner pointed out that on the day before his death the deceased had not left his cell, even for meals, and had placed a rug all day over the inspection port window into the cell.

    44.  In her judicial review application Mrs Middleton did not question the adequacy of the coroner's investigation nor seek an order that there be a further inquest. She sought an order that the jury's findings as set out in their note be publicly recorded, and that there should thus be a formal public determination of the responsibility of the Prison Service for the death of the deceased. The issue was thus raised whether the current regime for holding inquests in England and Wales meets the requirements of article 2 of the Convention. In his reserved judgment given on 14 December 2001 ([2001] EWHC Admin 1043), paragraph 54, Stanley Burnton J said:

    "However, where there has been neglect on the part of the State, and that neglect was a substantial contributory cause of the death, my view is that a formal and public finding of neglect on the part of the State is in general necessary in order to satisfy those requirements [of article 2]."

    He therefore concluded (paragraph 56) that an inquest would not necessarily satisfy the procedural requirements of article 2 in a case such as the present. But the judge declined to order that the jury's note be incorporated in the inquisition, for a series of reasons but most importantly because he considered that the coroner had acted unlawfully in suggesting production of the note. The judge recorded (paragraph 60) that in the view of the jury and the coroner there had been significant deficiencies in the Prison Service's care of the deceased. He considered that no declaration was needed but, at the request of the Secretary of State, declared that:

    "by reason of the restrictions on the verdict at the inquest into the death of [the deceased] . . . that inquest was inadequate to meet [the] procedural obligation in Article 2 of the European Convention . . ."

    The Secretary of State appealed to the Court of Appeal which delivered its reserved judgment on 27 March 2002: [2002] EWCA Civ 390, [2003] QB 581. It was found to be necessary, to comply with article 2, that a verdict of neglect be available, but the Court of Appeal distinguished between individual and systemic neglect:

    "87 A verdict of neglect can perform different functions. In particular, in the present context, it can identify a failure in the system adopted by the Prison Service to reduce the incidence of suicide by inmates. Alternatively it may do no more than identify a failure of an individual prison officer to perform his duties properly. We offer two illustrations, which demonstrate the distinction we have in mind. On the one hand, the system adopted by a prison may be unsatisfactory in that it allows a prisoner who is a known suicide risk to occupy a cell by himself or does not require that prisoner to be kept under observation. On the other hand, the system may be perfectly satisfactory but the prison officer responsible for keeping observation may fall asleep on duty.

    88 For the purpose of vindicating the right protected by article 2 it is more 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."

    Later, the court continued:

    ". . . 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. Subject to the coroner, in the appropriate cases, directing the jury when they can return what would in effect be a rider identifying the nature of the neglect they have found, the rules will continue to apply as at present. The proceedings should not be allowed to become adversarial. We appreciate there is no provision for such a rider in the model inquisition but this technicality should not be allowed to interfere with the need to comply with section 6 of the Human Rights Act 1998."

    The Court of Appeal set aside the judge's declaration and instead declared:

    "In a case where

    (a)  a coroner knows that it is the inquest which is in practice the way the State is to fulfil the adjectival obligation under Article 2 of the European Convention on Human Rights, and

    (b)  a finding of neglect by the jury at the inquest could serve to reduce the risk of repetition of the circumstances giving rise to the death being inquired into,

    rule 42 of the Coroners Rules 1984 can and should be construed as allowing such a finding, providing no individual is named therein."

    45.  It follows from the reasoning earlier in this opinion that the judge's declaration was correctly made, although not for all the reasons he gave. There was no dispute at this inquest whether the deceased had taken his own life. He had left a suicide note, and it was plain that he had. The crux of the argument was whether he should have been recognised as a suicide risk and whether appropriate precautions should have been taken to prevent him taking his own life. The jury's verdict, although strictly in accordance with the guidance in Ex p Jamieson, did not express the jury's conclusion on these crucial facts. This might have been done by a short and simple verdict (eg "The deceased took his own life, in part because the risk of his doing so was not recognised and appropriate precautions were not taken to prevent him doing so"). Or it could have been done by a narrative verdict or a verdict given in answer to the coroner's questions. By one means or another the jury should, to meet the procedural obligation in article 2, have been permitted to express their conclusion on the central facts explored before them.

    46.  Had this been done (and the coroner cannot of course be criticised for applying the law as it stood) it would not have been necessary to invite the jury to submit a note. Their assessment of the facts and probabilities would have been clear, and the coroner (having also heard the evidence) could have judged what report he should make under rule 43. As it was, he was not constrained by the jury's note in what he reported. But the judge was right to view private communications between the jury and the coroner with disfavour, since such a practice must derogate from the public nature of the proceedings.

    47.  The declaration made by the Court of Appeal found no friend in argument before the House. In the absence of full criminal proceedings, and unless otherwise notified, a coroner should assume that his inquest is the means by which the state will discharge its procedural investigative obligation under article 2. There is force in the criticism made by all parties of the distinction drawn between individual and systemic neglect, since the borderline between the two is indistinct and there will often be some overlap between the two: there are some kinds of individual failing which a sound system may be expected to detect and remedy before harm is done. There will, moreover, be individual failings which need to be identified even though an individual is not to be named. "Self-neglect" and "neglect" are terms of art in the law of inquests, and there is no reason to alter their meaning. The recommending of precautions to prevent repetition is for the coroner, not the jury.

 
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