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Judgments - R (on the application of Hurst) (Respondent) v. Commissioner of Police of the Metropolis (Appellant)

    HOUSE OF LORDS

    SESSION 2006-07

    [2007] UKHL 13

    on appeal from: [2005] EWCA Civ 890

    

    OPINIONS

    OF THE LORDS OF APPEAL

    FOR JUDGMENT IN THE CAUSE

    R (on the application of Hurst) (Respondent)

v.

    Commissioner of Police of the Metropolis (Appellant)

    Appellate Committee

    Lord Bingham of Cornhill

    Lord Rodger of Earlsferry

    Baroness Hale of Richmond

    Lord Brown of Eaton-under-Heywood

    Lord Mance

    

    Counsel

    Appellants:

    Ian Burnett QC

    Anne Studd

    Beatrice Collier

    (Instructed by Metropolitan Police Legal Services)

    Respondents:

    Keir Starmer QC

    Danny Friedman

    (Instructed by Bhatt Murphy)

    Intervener

    Lord Goldsmith QC

    Philip Sales QC

    (Instructed by Treasury Solicitor)

    Hearing dates:

    15, 16 and 17 January 2007

ON

    WEDNESDAY 28 MARCH 2007

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

R (on the application of Hurst) (Respondent) v. Commissioner of Police of the Metropolis (Appellant)

[2007] UKHL 13

LORD BINGHAM OF CORNHILL

My Lords,

    1.  I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Brown of Eaton-under-Heywood. I am in full agreement with it, and would accordingly allow the appeal.

LORD RODGER OF EARLSFERRY

My Lords,

    2.  The respondent in this appeal is Mrs Christine Hurst. Her son, Troy Hurst, was stabbed to death by Albert Reid on 25 May 2000. This was the culmination of a long series of events which demonstrated the violent nature of Reid and his particular hostility to members of the Hurst family. Many of these incidents had been drawn to the attention of the police and the local housing authority. Indeed, on the day of Mr Hurst's death various reports had been made to the police. Although an inquest was opened into Mr Hurst's death, it was adjourned because Reid had been charged with murder. Following his conviction for manslaughter, Mrs Hurst asked the coroner to exercise his discretion to resume the adjourned inquest under section 16(3) of the Coroners Act 1988 ("the 1988 Act"). She wished the coroner to investigate what she alleged were the failings of the police and the housing authority, Barnet Council, to protect her son from Reid. By letter dated 19 November 2002 the coroner declined to reopen the inquest.

    3.  Under section 11(5)(b)(ii) of the 1988 Act the inquisition returned at the end of an inquest is to set out "how, when and where the deceased came by his death." These apparently simple words have been pored over by the courts on many occasions. It is not, however, disputed that, in accordance with the decision of the Court of Appeal in R v Coroner for North Humberside and Scunthorpe, Ex p Jamieson [1995] QB 1, under domestic English law an inquest is to determine "by what means", as opposed to "in what broad circumstances", the deceased came by his death. As my noble and learned friend, Lord Brown of Eaton-under-Heywood, explains, however, it is agreed between the actual parties to the present proceedings that, by reason of article 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the obligation of the United Kingdom under international law is to hold an investigation which will cover the possibility that failures of the public authorities contributed to Mr Hurst's death.

    4.  The Court of Appeal held that, having regard to Jamieson, there would have been no obligation to hold an inquest with that wider scope before the Human Rights Act 1998 ("the 1998 Act") came into force on 2 October 2000. But, after that date, by reason of section 3 of the 1998 Act, section 11(5)(b)(ii) of the 1988 Act required to be read in a way that was compatible with article 2. So the coroner should be ordered to resume the inquest at which it would be his duty to return an inquisition setting out "by what means and in what circumstances" Mr Hurst died. An inquest with that scope would be capable of covering the allegations against the public authorities, including the police.

    5.  The Commissioner of the Police of the Metropolis appealed against that decision and argued that the Court of Appeal had misinterpreted section 3 of the 1998 Act. Counsel for Mrs Hurst sought to sustain the Court of Appeal's decision principally on the basis of a broad argument about the effect of the international law obligation in article 2 of the Convention on the approach to be adopted by the coroner. He put rather less weight on the section 3 argument deployed by the Court of Appeal and even less on a further argument relating to section 22(4) of the 1998 Act.

    6.  What Mrs Hurst had not done, however, was to challenge the Court of Appeal's decision that the allegations against the police could not have come within the scope of an inquest of the Jamieson type. For that reason her counsel explicitly acknowledged at the hearing before the House that he could not re-open that aspect of the Court of Appeal's decision. The decision itself is understandable, given that the earlier decision of this House in R (Middleton) v West Somerset Coroner [2004] 2 AC 182, a case of suicide in prison, proceeded on the basis that Jamieson correctly identified the (limited) scope of a verdict under English domestic law. In particular, under rule 36 of the Coroners Rules 1984 "the proceedings and evidence at an inquest" are to be directed only to "how" - in the sense of "by what means"- the deceased came by his death. Therefore, any right to a wider inquiry (into any failure by the prison authorities to put the deceased on a suicide watch) was to be obtained via the application of section 3 of the 1998 Act.

    7.  The scope of the inquiry, as opposed to the verdict, is a matter for the coroner. Buxton LJ said that, although the coroner in this case had not asked himself "at what point the chain of causation becomes too remote to form a proper part of his investigation", nevertheless, if he had done so, the question could only have been answered in one way - viz, that, applying the approach in Jamieson, the chain of causation was indeed too remote to form part of his investigation in this case: [2005] 1 WLR 3892, 3899. At an earlier point in his judgment Buxton LJ had held that any failings of the police to respond to urgent reports of incidents involving the Hurst family were too remote for consideration at any renewed inquest because "any direct causal connection between the failings of the police and the death was broken by the violent intervention of Mr Reid": [2005] 1 WLR 3892, 3898.

    8.  Often, of course, the law does treat a deliberate act of a third party as breaking a chain of causation. But not always. It depends on the purpose for which the existence of the causal connexion is being used. I refer to the well-known passages in the speeches of Lord Hoffmann in Environment Agency (formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22, 30G-32A and Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360, 367G-368B. Here the need for a causal connexion between an alleged failure and Mr Hurst's death is being used as a way of determining the scope of the inquest. It is not self-evident - to me at least - that any failures by the police to respond to warnings would be too remote to be considered at an inquest simply because Reid committed precisely the kind of violent act which the people giving the warnings feared would happen. Indeed, uninstructed by the case law, I too might have found it difficult to imagine that a resumed inquest would not examine at least some of the authorities' alleged failures. But I have to accept that the cases show that, in relation to Jamieson inquests, "how" is to be interpreted narrowly in both section 11(5)(b)(ii) of the 1988 Act and rule 36 of the Coroners Rules. On that basis it can be said that the authorities' failures would lie outside the scope of a resumed inquest.

    9.  In reality, therefore, the appeal was actually fought out on the other three arguments. I agree with what Lord Brown says on each of them.

    10.  While I could not help but admire the ingenious ways in which the Court of Appeal attempted to distinguish In re McKerr [2004] 1 WLR 807, for the reasons given by Lord Brown those attempts were doomed to fail. In particular, in section 3 the expression "the Convention rights" must be interpreted in the same way as in section 6 - as referring to the rights and fundamental freedoms set out in the articles set out in Schedule 1. See section 1(1). Any other approach would make section 6(2)(b) unworkable.

    11.  In the Jordan appeal [2007] UKHL 14 Mr Blake took the matter a stage further, however. His argument, as applied to Mrs Hurst's case, would be that, even assuming that, for the reasons given in McKerr, Mrs Hurst had no article 2 Convention right to require an investigation into her son's death, nevertheless the broader construction of section 11(5)(b)(ii) of the 1988 Act established by R (Middleton) v West Somerset Coroner [2004] 2 AC 182 should be applied whenever the provision was in play - whether or not the person seeking the resumption of the inquest had an article 2 Convention right. The result would seem to be that the ambit of the jury's verdict would be widened in every inquest.

    12.  A somewhat similar point has arisen in cases where legislation has to be given a particular interpretation in order to comply with a requirement of European Community law. Where no potential infringement of Community law is involved, can a party insist on the legislation being applied in the same way? As Lord Brown shows, the answer given by the courts is that he cannot: the legislation is interpreted differently, depending on whether or not Community rights are involved. The same should apply in the present context also.

    13.  Although at first sight this may seem strange, any other solution would be even stranger. Here the coroner declined to resume the inquest on 19 November 2002. At that time Mrs Hurst could not herself have insisted on section 11(5)(b)(ii) of the 1988 Act being interpreted broadly in order to give effect to an article 2 Convention right. So, if she were now entitled to invoke the interpretation reached by the House in R (Middleton) v West Somerset Coroner more than a year later, her legal position today would be entirely dependent on her good luck that someone who was assumed to have an article 2 Convention right had managed to obtain that interpretation. As a matter of principle, however, Mrs Hurst's legal position cannot depend on whether someone else happens to have invoked a right and achieved a result which she herself could not have invoked or achieved.

    14.  The only way to avoid this element of chance would be to say that, even where the Convention-compatible interpretation had not been previously established, a person without the relevant Convention right could make submissions as to what the interpretation would have to be in order to make the provision compatible with the Convention right in a hypothetical case involving someone with the relevant right. And then insist on that interpretation being applied to her case. Such an approach would be tantamount to treating someone without a Convention right as having a Convention right. Even leaving section 7(1) aside, it would be self-evidently untenable. For that good reason, it was not, of course, even remotely suggested by Mr Blake.

    15.  Having regard to the issues which were argued at the hearing, with some reluctance, I would allow the appeal for the reasons given by Lord Brown.

BARONESS HALE OF RICHMOND

My Lords,

    16.  The simple issue presented to us was whether the coroner's decision, to resume or not to resume the inquest into the killing of Troy Hurst, should have been governed or guided by the State's positive obligation under article 2 of the European Convention on Human Rights - in short, to conduct an effective investigation into whether the State had failed in its obligation to protect the right to life.

    17.  As to whether or not the coroner's decision should have been governed by the Convention, the short answer is no. Remedies to give effect in domestic law to the rights enshrined in the Convention were introduced on 2 October 2000. Those remedies consist of the duty of public authorities, including the courts, to act compatibly with the Convention rights (section 6(1)), the right of individual victims to assert or rely upon an actual or threatened breach of that duty in any domestic legal proceedings (section 7(1)), the duty of the courts to interpret and apply legislation compatibly with the Convention rights (section 3(1)) and the power of the higher courts to declare primary legislation incompatible (section 4(1)). It would make no sense to divide up the interpretative and remedial provisions for this purpose. As my noble and learned friend, Lord Rodger of Earlsferry, put it in Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816, at para 204:

    "Parliament must have intended all the operative provisions of this particular statute to take effect in the same way in respect of any given Convention right."

    And as my noble and learned friend, Lord Brown of Eaton-under- Heywood, succinctly stated in In re McKerr [2004] 1 WLR 807, para 89:

    "The duty to investigate is, in short, necessarily linked to the death itself and cannot arise under domestic law save in respect of a death occurring at a time when article 2 rights were enforceable under domestic law."

    18.  As to whether or not the coroner should have been guided by the United Kingdom's obligations under the Convention in respect of a death to which the 1998 Act did not apply, I accept, of course, that the coroner was not bound to comply with those obligations. To hold otherwise would be to incorporate the Convention into domestic law by the back door. It may be that he would have been justified in ignoring it altogether. But he did not do so. And to my mind there was one respect in which the values underlying the Convention were obviously relevant to the exercise of his discretion even though the 1998 Act does not apply. I refer to the proper scope of an inquest even under the old law.

    19.  I question whether the distinction drawn by Lord Brown between a "Middleton inquest" and a "Jamieson inquest" is as stark as he suggests. A Middleton inquest is, of course, one in which the Coroners Act 1988 and the Rules have to be interpreted and given effect in a way which is compatible with the United Kingdom's obligations under article 2. This means, not only that the scope of the inquiry must encompass whether the authorities were indeed in breach of their positive obligation to protect life (as identified in Osman v United Kingdom (1998) 29 EHRR 245), but also that the inquiry "ought ordinarily to culminate in an expression, however brief, of the jury's conclusion on the disputed factual issues at the heart of the case": R (Middleton) v West Somerset Coroner [2004] 2 AC 182, per Lord Bingham of Cornhill at p 198, para 20.

    20.  The decision of the Court of Appeal in R v Coroner for North Humberside and Scunthorpe, Ex p Jamieson [1995] QB 1 was concerned, and as I read it solely concerned, with the circumstances in which it was proper for the coroner to leave a verdict of "lack of care" to the jury. It was made clear that "lack of care" is a specialised verdict, which should more properly be termed "neglect" (per Sir Thomas Bingham MR at p 25, para (8) of his general conclusions). It referred to "a gross failure to provide adequate nourishment or liquid, or provide or procure basic medical attention or shelter or warmth for someone in a dependent position" (para 9). It could rarely, if ever, be a free-standing verdict rather than annexed to another verdict such as natural causes (para 10). It could only be associated with a verdict that the deceased took his own life where gross neglect was directly connected with the deceased's suicide (para 11). However, "there could be no objection to a verdict which incorporates a brief, neutral, factual statement" of how the deceased came by his death (p 24, para (6)).

    21.  Jamieson was not directly concerned with the scope of the inquiry at an inquest. This has always been a matter for the coroner to determine. The scope of the inquiry is almost always going to be wider than the verdict eventually reached: see R v Inner West London Coroner, Ex p Dallaglio [1994] 4 All ER 139, per Simon Brown LJ at p 155. To limit it to the last link in the chain of causation would defeat the purpose of holding inquests at all: ibid, per Sir Thomas Bingham at p 164. It is not only that the facts have to be fully investigated in order to discover which of a variety of verdicts is possible. The function of an inquest is to investigate and if possible to answer four questions: who the deceased was, and "how, when and where he came by his death": see Coroners Act 1988, section 11(5) and Coroners Rules 1984, rule 36. Jamieson made clear that "how" meant "by what means" rather than "in what broad circumstances". But it did not disapprove previous statements such as that of Croom-Johnson LJ in R v Southwark Coroner, Ex p Hicks [1987] 1 WLR 1624, at p 1634, that "the word 'how' is wide and it is not possible to foresee every way in which someone may meet his death". Nor did Jamieson cast any doubt upon the words of Lord Lane LCJ in R v South London Coroner, Ex p Thompson (1982) 126 SJ 625, emphasising the inquisitorial nature of the exercise:

    "The function of an inquest is to seek out and record as many of the facts concerning the death as [the] public interest requires."

    This was an exact reflection of the views expressed by the Brodrick Committee in their Report on Death Certification and Coroners (1971, Cmnd 4810), at para 16.40:

    "In future, the function of an inquest should be simply to seek out and record as many of the facts concerning the death as the public interest requires, without deducing from these facts any determination of blame."

    The final conclusion in Jamieson (p 26, para 14) points out that:

    "It is the duty of the coroner . . . to ensure that the relevant facts are fully, fairly and fearlessly investigated. . . . He must ensure that the relevant facts are exposed to public scrutiny . . . He fails in his duty if his investigation is superficial, slipshod or perfunctory. But the responsibility is his. He must set the bounds of the inquiry. . . . "

    22.  No-one suggests that this is an easy task, when emotions and anxieties are so acutely aroused. But if the coroner had asked himself whether "as many of the facts concerning the death as the public interest requires" had indeed been investigated in this case, he might well have reached a different conclusion. The criminal trial had, of course, dictated the verdict that Mr Hurst had been unlawfully killed. But it had not revealed even as many facts about the conduct of the police that night as Mrs Hurst has now been able to discover. In particular, there was the recorded view of Police Sergeant Mortimer, who had good reason to judge, that Albert Reid was an extremely dangerous man. There was the escalating series of calls to the police as the evening wore on, not all of which were referred to at the trial. There were the reasons for the possession action against Albert Reid, which had been heard and adjourned that very day. All of this suggests that there was an acute public interest, and not merely the private interest of a grieving mother, in a full investigation of how it came about that Troy Hurst met his death. This is so, to my mind, irrespective of the Convention, but the Convention values are also some guide to what facts it is in the public interest to investigate. Although the scope of the inquiry is for the coroner to determine, and his decisions will rarely be subject to review, it is difficult to imagine that any resumed inquest in this case would not examine the conduct of the police and the housing authority that fateful day if not before.

    23.  There is nothing in Jamieson which precludes or is inconsistent with such a conclusion. All that Jamieson precludes is a verdict of "unlawful killing caused or contributed to by police neglect". To be fully compliant with article 2, some such verdict would have to be available, as Middleton shows. But the non-availability of such a verdict does not inexorably lead to the conclusion that a resumed inquest would serve no useful purpose. Insofar as the Court of Appeal reached a different conclusion in this case (see [2005] 1 WLR 3892, at pp 3898-3899, paras 18-20) I beg to differ. There clearly is a useful purpose to be served, albeit a less useful one than there might have been.

    24.  Accordingly, and in agreement with my noble and learned friend, Lord Mance, I would either (a) dismiss this appeal, or (b) allow it only to the extent of setting aside the coroner's decision and remitting the question of whether or not to resume the inquest to him for reconsideration.

LORD BROWN OF EATON-UNDER-HEYWOOD

My Lords,

    25.  Troy Hurst, the respondent's son, was stabbed to death by a neighbour on 25 May 2000, just a few months before the coming into force of the Human Rights Act 1998 on 2 October 2000. That, as will shortly appear, is a crucial consideration in this appeal.

    26.  Following the killer's conviction for manslaughter the respondent urged the coroner to re-open the inquest into her son's death: the risk of such a violent incident had long been apparent and the police and housing authority were open to criticism for not doing more to avert it. The coroner's refusal to re-open the inquest is the decision under challenge in these proceedings. The respondent's whole case depends upon the scope and findings of any such inquest being determined in accordance with the United Kingdom's investigatory obligation arising under article 2 of the European Convention on Human Rights. It is not contended that the coroner's decision can be impugned except by reference to the article 2 duty. An inquest conducted in accordance with domestic coronial law prior to the coming into force of the Human Rights Act would satisfy neither the respondent's desire for wide-ranging findings upon the circumstances leading up to her son's death nor the United Kingdom's article 2 duty. The critical question for your Lordships' determination is whether those seeking such an investigation into a pre-Human Rights Act death are entitled in domestic law to the benefit of the Convention.

    27.  It may be helpful at this introductory stage to clarify the issues by making brief reference to just four cases. The Court of Appeal decided in R v Coroner for North Humberside and Scunthorpe, Ex p Jamieson [1995] QB 1 (Jamieson) that the function of an inquest is to determine "by what means" and not "in what broad circumstances" the deceased came by his death: that is the meaning to be given to the word "how" in section 11(5)(b)(ii) of the Coroners Act 1988 and rule 36(1)(b) of the Coroners Rules 1984, both of which specify the inquest's purpose to be ascertaining "how . . . the deceased came by his death". Jamieson concerned the form of the verdict rather than the scope of the inquiry, the latter being left essentially as a matter for the coroner.

    28.  The following year the European Court of Human Rights in McCann v United Kingdom (1995) 21 EHRR 97 (McCann) (the "Death on the Rock" case) first identified the procedural duty implicit in article 2 of the Convention, a duty developed in subsequent Strasbourg case law to require the full investigation of any death involving or possibly involving a violation of the State's substantive obligation to protect human life arising under article 2 (essentially wherever state agents or bodies may bear responsibility for the death). Such an investigation, moreover, must be able to state its conclusions on the main issues arising, for example, the justification of any use of lethal force or the responsibility for any systemic failure to protect human life.

    29.  The other two cases principally bearing on this appeal are the decisions of differently constituted Appellate Committees of this House, both given on 11 March 2004: R (Middleton) v West Somerset Coroner [2004] 2 AC 182 (Middleton) and In re McKerr [2004] 1 WLR 807 (McKerr). Middleton approved Jamieson, recognised that in the case of certain deaths a Jamieson inquest (as for convenience I shall call an inquest conducted in accordance with that decision) would not meet the United Kingdom's obligations under article 2 of the Convention, and held that in those cases (assuming always that the obligation were to be satisfied by an inquest rather than some other form of inquiry) the word "how" in the relevant provisions should be construed pursuant to section 3 of the Human Rights Act to mean "not simply 'by what means' but 'by what means and in what circumstances'". Thus the jury's verdict would be able to state their conclusions on the important underlying issues: in that case (concerning a prisoner's suicide in prison) whether he should have been recognised as a suicide risk and whether appropriate precautions should have been taken to prevent it.

 
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