HOUSE OF LORDS
 UKHL 11
on appeal from:  EWCA Civ 217
Regina v. Her Majesty's Coroner for the County of West
Yorkshire (Appellant) ex parte Sacker (FC) (Respondent)
Ordered to be printed 11 March 2004
(HL Paper 52)
from the Appellate Committee
11 MARCH 2004
Regina v. Her Majesty's Coroner for the County of West Yorkshire (Appellant) ex parte Sacker (FC) (Respondent)
ORDERED TO REPORT
The Committee (Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Walker of Gestingthorpe, Baroness Hale of Richmond and Lord Carswell) have met and considered the cause Regina v. Her Majesty's Coroner for the County of West Yorkshire (Appellant) ex parte Sacker (FC) (Respondent). We have heard counsel on behalf of the appellant and respondent.
1. This is the considered opinion of the Committee.
2. The respondent Helen Sacker is the mother of Sheena Creamer, who died on 7 August 2000 while she was being held on remand at HM Prison New Hall, West Yorkshire. An inquest was conducted into her death by the appellant, HM Coroner for West Yorkshire (Eastern District), from 9 to 12 October 2001. The inquisition which was read by the appellant at the end of the inquest recorded the conclusion of the jury, by a majority of 9 to 2, which was that Ms Creamer had killed herself. Counsel for the respondent had submitted that the jury should be given an opportunity to add the words "contributed to by neglect" to their verdict. The appellant declined to do this, so the jury were not given that opportunity. On 4 July 2002 Sir Richard Tucker refused the respondent permission to apply for judicial review of the appellant's decision. On 27 February 2003 the Court of Appeal (Pill, Mummery and Latham LJJ) allowed the respondent's appeal against the decision of the judge, quashed the inquisition and ordered a fresh inquest.
3. The question which is before your Lordships in this appeal is whether the appellant should have directed the jury that they could add a rider to their verdict to indicate that systemic neglect had contributed to Ms Creamer's death. But the case raises a number of other issues of general public importance about the conduct of inquests and the verdicts that may result from them. This is because article 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that "everyone's right to life shall be protected by law," has now been incorporated into domestic law by the Human Rights Act 1998. These issues are of particular concern in cases such as this, where the death was caused by suicide while the deceased was in custody. In view of its importance the appeal was heard together with R v HM Coroner for the Western District of Somerset, Ex p Middleton  UKHL 10. The opinion which has been delivered in that case provides the background to the way in which the question in this case must be decided.
Suicide in prisons
4. It is important, in order to set this case into its proper context, to appreciate the nature and scale of the problem of self-harming behaviour by prisoners who are held in prison establishments, especially those holding women. The Joint Committee on Human Rights which was appointed by the House of Lords and the House of Commons to consider matters relating to human rights in the United Kingdom is at present engaged on an inquiry into deaths in custody: see Deaths in Custody: Interim Report, 26 January 2004 (HL Paper 12/HC 134). In response to its call for evidence the Committee received a memorandum from HM Prison Service for England and Wales dated 18 August 2003: Ev 26-32. In this memorandum the Director General of the Prison Service, Phil Wheatley, acknowledges that any death in custody is a terrible tragedy that brings its duty of care to people in custody into sharp focus. Reducing suicides and self-harm in prisons is said by him to be a key objective. He points out that a great deal of work has been and continues to be done in this area, but that there are, regrettably, no simple solutions and that the reasons for self-inflicted deaths are complex.
5. For many years the standard method of reducing the risk of prison suicides was to observe prisoners who were thought to be at risk at fixed intervals. The Tumin Review on Suicide, Report of a Review by Her Majesty's Chief Inspector of Prisons for England and Wales of Suicide and Self-harm in Prison Service Establishments in England and Wales, December 1990 (Cm 1383), drew attention to the dangers which were inherent in this practice and recommended that the period between observations should be designed to meet the perceived needs of the individual prisoners concerned. In December 1997 Ms Joyce Quin, the Minister for Prisons, asked the then Chief Inspector of Prisons, Sir David Ramsbotham, to carry out a thematic review of suicide and self-harm in prison service establishments in England and Wales to follow up that undertaken by Sir Stephen Tumin. This was in response to concern expressed by the Director General of the Prison Service about the increasing number of deaths in custody and as to whether everything possible was being done to prevent them. The Ramsbotham Report, Suicide is Everyone's Concern, A Thematic Review by HM Chief Inspector of Prisons for England and Wales, May 1999, noted that, in contrast with the falling rate of suicide in the community, the rate in prison had increased dramatically. It had more than doubled between 1982 and 1998, and a marked increase had taken place among prisoners who were unsentenced.
6. In a section entitled "Understanding Suicide" the Ramsbotham Report noted the complexity of the characteristics that lead to the suicide state and the need to understand it at several levels. It was possible to identify a number of broad types of prisoners who were at risk of suicide. One of these was prisoners aged between 16 and 25 with a history of previous self-injury, whose distress was acute and who were particularly vulnerable to the impact of imprisonment. In para 2.11 it was noted that the role of staff must be to understand the complexity of this experience, to alleviate the pain of isolation and to help the individual to take steps that will bring about an end to their pain through means other than killing themselves.
7. In a section entitled "The Effectiveness of Current Practice" the Ramsbotham Report set out the main features of the suicide prevention strategy that had been adopted by the Prison Service in 1994 in the light of independent research which it had commissioned into the behaviour and characteristics of male prisoners who attempt suicide or harm themselves. These included greater responsibility for all prison staff in caring for the suicidal, a move away from reliance on health care staff and the introduction of a new form for managing those considered as being at risk (form F2052SH). It was found that there was an evident inconsistency in the effectiveness of different suicide awareness teams that had been set up and that, although suicide prevention policies were in place across the Prison Service, there was little differentiation within them between different types of prisoner. The need for different strategies was emphasised having regard in particular to the vulnerable, uncertain and impulsive nature of young prisoners, especially those on remand. Attention was drawn to the proper use of the "At Risk" Form F2052SH, of which this was said, in para 5.37:
"This form is opened when any member of staff considers a prisoner to be at risk. It was designed in considerable detail to manage the measures to be taken to support an individual at a time of a suicidal crisis to the point where risk was reduced and the form could be closed. The form is only intended however as a framework and following the stages of the form should not be the end in itself. Writing on the form is not what sees someone through a crisis. If the contents become clichéd and repetitive, the piece of paper becomes meaningless, and worse, staff quite wrongly feel they have done their job. This is not to argue against the role of the form, but to emphasise that it is not the most important feature of the strategy and it should not be relied on as the sole mechanism for intervention. The most important outcome of any process is that the prisoner concerned receives the help he/she needs to get through the crisis."
The Report concluded in para 5.58 that the Prison Service policy towards the prevention of suicide was fundamentally sound when applied in its entirety, but that the modern history of the Prison Service revealed that systems are only as effective as the competence and dedication of those who administer them.
8. In Chapter 6 the Ramsbotham Report put forward principles on which a revised strategy for suicide prevention in local prisons, such as HM Prison New Hall, should be built. The Chief Inspector drew attention to the importance of this exercise in his Preface to the Report, which included this paragraph:
"The particular significance of this review is that it affects every person every time they come into custody. Death and bereavement inevitably touch us all in some way, and, when a prisoner dies in prison, his or her family and friends are bereaved in the same way as anyone else. But there is an added dimension to a death in prison. Firstly family and friends do not just lose a loved one, they lose him or her in very painful circumstances, separated from them and in conditions that they do not fully appreciate. In addition staff and prisoners, living and working with the person, are also deeply affected, and have to come to terms with their bereavement as well as that of the family. Thus the impact of a death in custody is compounded by a number of additional factors and emotions, which must be acknowledged, but are difficult to understand objectively. One suicide is one too many, but, regrettably, there will always be deaths in prison, however professional and caring the prison staff, and however efficient a reduction strategy and systems for observing prisoners."
In the penultimate paragraph he said that central to his recommendations was the need for a ringing declaration from the Home Secretary, through the Director General, to everyone in the Prison Service, that suicide and self-harm can and will be reduced, and that accountability for delivering that reduction begins at the top and goes right down to the bottom.
9. Despite all these efforts on the part of successive Chief Inspectors of Prisons and the Prison Service, suicides in custody continue to occur. In her Annual Report for 2003, Annual Report of HM Chief Inspector of Prisons for England and Wales 2002/2003, 20 January 2004, Anne Owers observed that in spite of the commendable efforts of the Safer Custody Group, and of some individual prisons and officers, the rise in the number of suicides in prison has continued to grow. In the year under review, almost two prisoners a week had killed themselves in prisons in England and Wales. This was, she said, closely linked to overcrowding and prisoner movements. But the statistics of those who commit suicide in prison were shocking: over a third were unconvicted, one in five were women (though they accounted for only 8% of the average daily prison population), one in five were in prison hospitals or segregation units, 61% were in male local prisons and 40% die within their first month in custody. She added this comment:
"Those statistics sketch the profile of those who most commonly die in our prisons: they are likely to be newly in prison, often unconvicted, often so mentally ill or disturbed that they need segregation or treatment, and a disproportionate number are women, often young women. Many of them, at that stage in sentence, will be withdrawing from drugs."
10. In his memorandum to the Joint Committee on Human Rights dated 18 August 2003 the Director General of the Prison Service addressed the question what practical steps have already been taken, and what further steps are being considered, to prevent suicide and self-harm in prisons: Ev 30-31. A fresh strategy to develop policies and practices to reduce prisoner suicide and manage self-harm in prisons was announced in February 2001 by the then Home Secretary and has been implemented from April 2001. It is said to be holistic in approach, more overtly preventative, risk-based, to better facilitate inter-agency information exchange, and to develop safer prison design, including safer cells. New evidence based healthcare reception screening arrangements are being implemented. They include measures designed to improve the detection of vulnerable prisoners. Improved processes for the identification and management of prisoners at risk of suicide and self-harm are being developed to replace the current F2052SH procedures. Changes in detoxification facilities and procedures are also being introduced. Staff awareness and training are recognised as being the key to the successful outcome of many of these initiatives, and training programmes are being developed alongside new procedures.
11. It is hard to fault the attention that has been given to this problem by senior management in the Prison Service and by the Prison Inspectorate. There is a high level of awareness, and much effort has been devoted to improving the system for the prevention of suicides. But every time one occurs in a prison the effectiveness of the system is called into question. So all the facts surrounding every suicide must be thoroughly, impartially and carefully investigated. The purpose of the investigation is to open up the circumstances of the death to public scrutiny. This ensures that those who were at fault will be made accountable for their actions. But it also has a vital part to play in the correction of mistakes and the search for improvements. There must be a rigorous examination in public of the operation at every level of the systems and procedures which are designed to prevent self-harm and to save lives.
12. The public investigation of deaths in prison has long been a requirement in domestic law: see R (Amin) v Secretary of State for the Home Department  UKHL 51;  3 WLR 1169, 1175, para 16, per Lord Bingham of Cornhill. Section 8(1)(c) of the Coroners Act 1988 requires a coroner to hold an inquest on being informed that a person has died in prison. Section 8(3)(a) provides that such an inquest must be conducted with a jury. The inquest must be held in public, and the family of the deceased may attend and be legally represented: Coroners Rules 1984 (SI 1984/552), rules 17 and 20. Not all the deaths that occur in prisons are due to suicide. But the majority are. Statistics that were provided by HM Prison Service to the Joint Committee on Human Rights show that in 2002 there were 94 self-inflicted deaths, as compared with 71 which were due to natural or other causes: HL Paper 12/HC 134, Ev 26. Added importance has been given to this procedure, and to its effectiveness as a means of protecting the right to life, by the Human Rights Act 1998 and by the incorporation into domestic law of article 2 of the Convention in particular.
The facts of this case
13. The appellant has submitted that on the facts of this case there was no basis for concluding that Ms Creamer's death was caused by a systematic failure. If the appellant is right, there would be no purpose to be served in holding a fresh inquest. The respondent's case is that there was a relevant causal connection between the neglect which she alleges and the cause of Ms Creamer's death. The question where the truth lies on this issue is essentially one for decision at an inquest. The question for your Lordships is whether, if there were to be a fresh inquest, the jury would be entitled to hold that a relevant causal connection had been established. So the tragic events which led to Ms Creamer's death need to be set out in some detail. The facts set out in the following three paragraphs are based on the agreed statement of facts and issues.
14. Ms Creamer was aged 22 at the time of her death. She was the single mother of two children. On 29 July 2000 she was remanded in custody at Sheffield Magistrates' Court for an alleged offence of dishonesty. She was taken to HM Prison New Hall. On 4 August 2000 at a further hearing in the magistrates' court she was again remanded in custody until 23 August 2000. While she was at court she became very upset. PCO Clayton of Group 4 Custodial Services, who was the court custody officer, opened a "Self Harm at Risk" Form F2052SH at 1300 hrs that day. Under the heading "Why are you concerned?" she wrote:
"DP seems very depressed says if she goes back to prison today she will do herself in very tearful whilst in court, had to be forcibly removed from dock when remanded."
Under the heading "What does the prisoner say about his/her situation?" she wrote:
"Says she will lose her accommodation worried about her children says she has nothing left her life's a mess."
15. She was taken back from the magistrates' court to HM Prison New Hall. On her arrival she was sent to the health centre for observation. A member of the nursing staff recorded on the form F2052SH at 1800 hrs, in the section where she was required to give her assessment of Ms Creamer on her initial referral, that she had stated that she was not suicidal at all. On the following day, 5 August 2000, she was taken to the care and supervision unit for an adjudication about her behaviour in court the previous day. A member of the nursing staff recorded in the daily supervision and support record at 10.00 hrs that Ms Creamer was a little bit upset during the adjudication. She was seen later in the health centre by Dr Leslie Spivack, who was a locum medical officer. Dr Spivack entered the following assessment on her F2052SH:
"Not suicidal or thinking of self harm. Was reacting to failure to get bail. Compos mentis. I feel she is manipulative."
Dr Spivack referred Ms Creamer back to the residential unit. But he did not complete the part of the F2052SH entitled "Discharge Report". This part of the form states that it must be completed in all cases where a prisoner is discharged or returned to the residential unit, and that if necessary a case review is to be held involving residential staff to decide a post-discharge support plan. He was not familiar with the form, and he was unaware of the procedure that had to be followed in cases where a form F2052SH had been opened.
16. Ms Creamer was returned to the residential unit at 10.30 hrs on 6 August 2000. She was placed in a single cell with a modesty curtain around the toilet. During the afternoon she associated with other prisoners. During the evening when she was back in her cell she was observed every half hour, as her F2025SH had not been closed. When she was checked at 23.30 hrs she was found hanging by a ligature made from the modesty curtain which had been attached to the bars of her cell window. Steps were taken to try to resuscitate her. These steps continued while she being taken by ambulance to hospital, but they were unsuccessful. Ms Creamer was pronounced dead in the hospital at 00.40 hrs on 7 August 2000.
17. Mr Burnett QC's submission for the appellant, in the light of these facts, is that there is no basis for concluding that Ms Creamer's death was caused by a systematic failure. He accepted that the system was not correctly operated because Dr Spivack was not familiar with the F2052SH and the procedure that should be followed in connection with it. But he said that it was clear that if Dr Spivack had understood the procedure he would have closed Ms Creamer's F2052SH, because his view was that she posed no risk of self-harm. The consequence of his not having done so was that the form remained open. This had the result that Ms Creamer was subject to half-hourly observations during the night when she died. If he had completed the discharge section the form would have been closed and she would not have been observed at all. Mr Gordon QC for the respondent disputed this assessment. In support of his argument that there were grounds for concluding that a finding that the death had been contributed to by neglect could have been made in this case he referred to additional information which was to be found in a report which had been commissioned by Mr N D Clifford, the Operational Manager for Women's Prisons, in an attempt to find out why the death had occurred and what could be done to prevent such a tragic occurrence in the future. It was commissioned on 7 August 2000, commenced on 9 August 2000 and was concluded on 1 October 2000. The information in this report has to be read together with the evidence that was to be led later at the inquest.
18. The report reveals that Ms Creamer had numerous previous convictions for crimes of dishonesty, and that she had acquired a drug habit. When she was admitted to the prison on 29 July 2000 it was noted on her inmate medical record that she had admitted that she was a regular intravenous drug user. She admitted to using heroin and to consuming large quantities of alcohol. She was immediately placed on a detoxification opiate withdrawal programme. When she was remanded on 4 August 2000 for a further three weeks in custody she was still showing signs of withdrawal. She reacted aggressively to the refusal of bail and had to be removed forcibly from the dock. It was at this stage that PCO Clayton opened the F2052SH. She noted on the form that Ms Creamer should be assessed on arrival by the residential unit manager. The absence of any record that this was done indicates that no such assessment was carried out by the reception staff on her arrival. They appear not to have been alerted to the fact that she had been on a detoxification programme. She was placed in a five-bed ward in the Health Care Centre.
19. Ms Creamer appeared before the Governor the next day for an adjudication about her behaviour in court on 4 August 2000. The Governor found her guilty of a disciplinary offence and ordered seven days stoppage of earnings and two days loss of association. The effect of the adjudication was that she was deprived of the opportunity of associating with other prisoners during the evening. The Governor noted that she was upset, so she decided not to order loss of television in her room in the residential unit. But she was not aware when she made the order that Ms Creamer was subject to an F2052SH, as this fact had not been reported to her. Ms Creamer told prisoners in the health centre that she was going to take her own life, but this information was not passed on by them to the prison staff because it was not taken seriously. The cell into which she was placed on her return to the residential unit was a single cell. Contrary to the standard regime that ought to have been applied in her case, it did not have a television set. The prison officer who checked Ms Creamer's cell at 23.30 hrs and found her hanging by a ligature did not have a set of cell keys. She had to summon assistance to gain access to the cell. This hampered her response to the incident.
20. The report which was commissioned by Mr Clifford contains numerous criticisms of the systems that were in operation on the night of Ms Creamer's death and recommendations for their improvement. Many of the defects that were noted appear to have been due to poor communication between members of staff with each other and between members of staff and prisoners, and to an inadequate understanding of the appropriate procedures. It is reasonable to think that steps have been taken to improve procedures at the prison in the light of this report and the further initiatives mentioned in the memorandum to the Joint Committee by the Director General. But the report did not have the effect of exposing these procedures to public scrutiny. This was the task that was to be performed by the coroner's inquest.
21. The inquest which the appellant conducted in this case was held in accordance with the statutory requirements. His decision to refuse the request that the jury be permitted to add the words "contributed to by neglect" to their verdict cannot be criticised. It was in accordance with the guidance that was given as to the conduct of inquests in R v Coroner for North Humberside and Scunthorpe, Ex p Jamieson  QB 1. In that case Sir Thomas Bingham MR said, at p 24A-B, that the word "how" in section 11(b)(ii) of the 1988 Act and in rule 36(1)(b) of the 1984 Rules was to be understood as meaning "by what means", and that the task was not to ascertain how the deceased died, which might raise general and far-reaching issues, but "how
the deceased came by his death" which was a more limited question directed to the means by which the deceased came by his death. At p 25G-26B, he said that it could possibly be correct for the jury to hold that neglect contributed to a verdict that the deceased took his own life, but that this finding would not be justified simply on the ground that the deceased was afforded an opportunity to take his own life even if it was careless to afford him that opportunity. He said that such a finding would only be appropriate in a case where gross neglect was directly connected with the deceased's suicide. It has not been suggested that that standard was achieved by the evidence in this case.
22. The inquisition which the appellant read at the conclusion of the inquest recorded the fact that the following matters had been found by the jury by a majority of 9 to 2:
"That the name is that of Sheena Dawn Lisa Nicola Marie Creamer, the injury or disease causing death was 1(a) hanging by ligature and (3) the time place and circumstances is that the deceased was a remand prisoner at Her Majesty's Prison New Hall. She was further remanded to prison by Sheffield Magistrates' Court on 4 August 2000 and was admitted to the medical centre, she was moved to the residential wing cell C215 on 6 August 2000 where she was discovered hanging by a ligature by a patrolling officer. An ambulance took her to Pinderfields General Hospital where she was declared dead on arrival at 0040 hours on 7 August 2000 and the jury's conclusion by majority is that Sheena killed herself
23. Rule 43 of the Coroners Rules 1984 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."