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Chapter 13: Verdict and Inquisition
The material formerly found here is now contained in the first supplement to Jervis, published by Sweet & Maxwell in November 2003, with ISBN 0 421 858 907.
13-06 It has been stated in a criminal case that the jury should deliberate only when they were all together in the jury room, and not when, eg, one of their number was late in attending court: R v Hastings, The Times, 12 December 2003, CA.
13-44 In R (Davies) v Birmingham Deputy Coroner [2003] EWCA Civ 1739, Brooke LJ said (at para 49):
"It is obvious that the law is in an unsettled state, and I am conscious of the anxieties expressed about the decision in Middleton not only by Pill LJ [in Sacker] but also by the editor of Jervis on Coroners (12th Edition, 2003) at paras 12.93 – 12.94 and 13.44."
He went on to say (at paras 51, 53):
"51. What the court in Middleton was anxious to achieve was the possibility of an inquest jury being able to enter a verdict which included a finding of systemic neglect in a broader range of circumstances than those contemplated by the approach laid down in Jamieson's case, provided that no individual was named, if there was realistically no other way in which this country in the present state of the law might fulfil its Article 2 procedural obligations. The facts disclosed at the inquest might lead, as has often happened in the past, to charges of negligence being made in the civil courts. What this court decided was that a finding by a coroner's jury of systemic neglect did not determine any question of civil liability. It was therefore permissible notwithstanding Rule 42.
[ ... ]
53. It follows from all this that as the law now stands:
(i) There must be a full and effective inquiry into the death at the coroner's inquest if this is realistically the only occasion on which the state will perform its procedural duty;
(ii) It is open to a jury to return a verdict incorporating a finding of neglect in a broader range of circumstances than those contemplated by the approach laid down in Jamieson's case if the verdict relates to systemic neglect;
(iii) A letter written by a coroner pursuant to Rule 43 is not an adequate substitute, for Article 2 purposes, for a verdict by the jury in cases where a verdict of neglect is available on the evidence."
n 82 The decision of the Court of Appeal in R (Middleton) v West Somerset Coroner was technically reversed by the House of Lords on 11 March 2004: [2004] UKHL 10. The House gave detailed guidance for the conduct in future of inquests into deaths in custody where art 2 is engaged. This included the following points relating to neglect:
"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." (para 47)
13-44 n 82 As to negligence leading to the suicide of a detainee, see Orange v West Yorkshire Police [2001] EWCA Civ 611.
13-45 n 90 The decision of the Court of Appeal in R (Sacker) v West Yorkshire Coroner [2003] 3 All ER 278 was affirmed by the House of Lords: [2004] UKHL 11, 11 March 2004, though on different grounds.
13-46 In R (Davies) v Birmingham Deputy Coroner [2003] EWCA Civ 1739, Brooke LJ endorsed the view that errors in diagnosis and treatment are capable of amounting to neglect. He said (at paras 28-29):
"28. [Moses J] reminded himself that a gross failure, in accordance with the Jamieson test, might be found even where an individual had purported to make a clinical decision or diagnosis. Gross failures were not limited to those cases where an individual had failed to take any action at all. In Cleo Scott v HM Coroner for Inner West London [2001] EWHC Admin 105 at [28] – [29] Keene LJ said:
10. '… He was put in his cell on his own. No observations at specific intervals were required. All this seems to have flowed from the views formed by the medical practitioners at the prison, but that in itself, while relevant, cannot rule out neglect. There have been a number of cases where there had been medical attention but where neglect remained a possible element in a verdict ... Omissions on the part of medical practitioners are capable of forming part of the total picture which amounts to neglect.'
29. In R (Nicholls) v Coroner for City of Liverpool [2001] EWHC Admin 922 the Divisional Court was concerned with the alleged failure of a police forensic medical examiner properly to recognise the fact that the deceased had swallowed drugs, believed to be heroin. The court plainly thought that his failure could amount to neglect. Sullivan J, with whom Rose LJ agreed, said (at para 52):
'Notwithstanding [Counsel's] submission that neglect and negligence are two different 'animals', there is, in reality, no precise dividing line between 'a gross failure to provide ... basic medical attention' and a 'failure to provide ... medical attention'. The difference is bound to be one of degree, highly dependent on the facts of the particular case'."
Longmore LJ (at para 72) and Sir Martin Nourse (at para 74) agreed. In that case the court held that an error by a nurse attending an inmate in prison over a weekend (deciding that the inmate's condition did not require further assistance till Monday) could amount to neglect and should have been left to the jury.
13-49 In line four of the quotation in this paragraph from R v Surrey Coroner, for "Three" read "There".
13-52 n 34 The decision of the Court of Appeal in R (Sacker) v West Yorkshire Coroner [2003] 3 All ER 278 was affirmed by the House of Lords: [2004] UKHL 11, 11 March 2004, though on different grounds. The decision of the Court of Appeal in R (Middleton) v West Somerset Coroner was technically reversed by the House of Lords on 11 March 2004: [2004] UKHL 10.
13-54 In R (Middleton) v West Somerset Coroner [2004] UKHL 10, the House of Lords gave detailed guidance for the conduct in future of inquests into deaths in custody where art 2 is engaged. This included the following points:
"To meet the procedural requirement of article 2 an inquest 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." (para 20)
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."
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Last modified: Monday, 09-Aug-2004 08:53:15 BST by: Malcolm Bishop