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Case No: CO/981/2002
Neutral Citation Number:  EWHC 2184 Admin
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
Royal Courts of Justice
London, WC2A 2LL
Tuesday 29th October 2002
THE HONOURABLE MRS JUSTICE RAFFERTY
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on the Application of
HER MAJESTY'S CORONER FOR READING
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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Mr Peter Fortune (instructed by Guildhall Walk Chambers, Portsmouth) for the Claimant
Mr Harrop-Griffiths (instructed by HM Coroner for Reading) for the Defendant
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As Approved by the Court
Crown Copyright ©
Mrs Justice Rafferty:
1. Consequent upon permission granted by Forbes J the claimant Robert Mumford seeks an order quashing the verdict of an inquest jury returned on the 24th October 2001 touching upon the death of his stepson Jamie Gunning, and a mandatory order that the defendant, Doctor A J Pim Her Majesty's Coroner for Reading hold a fresh inquest.
2. On the 15th February 2001 Jamie Gunning (JG) then aged 20 was taken into police custody at Westleigh Police Station Swindon and the next day to Swindon Magistrates Court. That morning he appeared in court and was remanded in custody. At about 3pm he was found in his cell in the court building with the cord of his jacket round his throat, and a Self Harm At Risk form, AF2052SH, was opened. His coat, his jumper, and his shoes were removed and he was checked every 20 minutes before being taken from court by escort service to Her Majesty's Young Offender Institution and Remand Centre at Reading. He arrived at about 6.40pm and was first seen by staff on reception, and then at 7.10pm by Doctor D'Cruz, the senior medical officer who is also a General Practitioner in Reading. Dr D'Cruz had met him before, as JG had previously been in the Young Offender Institute (YOI). Dr D'Cruz described him as looking a bit dishevelled, and although a little angry neither hostile nor abusive. He seemed generally frustrated at being back in prison. As part of the screening performed by Dr D'Cruz JG was asked about the incident in the cells and said it was a stupid thing to try and do, unpremeditated, he had not been considering suicide, and it was because of feelings of frustration that he was back in prison and nothing was going to change. On the spur of the moment, he told the doctor, he thought he would simply try and kill himself. He painted a picture of having little for which to live, estranged from his family, an underachiever at school, but, having said all that, he did not want to kill himself and wanted to try and sort things out more appropriately. This he knew would be a long-term process. He told the doctor that his previous problems in custody centred upon drug abuse, and that he had in July 2000 taken an overdose of heroin. This too he described as an impetuous act which he had subsequently regretted, and not one he had had in contemplation. In fact he had managed to keep away from drugs for some several months after it.
3. JG asked both Dr D'Cruz and prison officers for a single cell. His reasons he gave variously as finding other people intimidating, and being conscious that he would be restive and likely to pace up and down, thus disturbing any inmate with whom he was sharing. He told Dr D'Cruz he had a poor self image and simply wanted to be on his own that evening. Somewhat to the doctor's surprise he asked for some night sedation. The surprise was that he had not been using drugs. Concluding that he was "het up" about having let himself down and being back in prison, the doctor prescribed some night sedation.
4. Because of the earlier attempt at asphyxiation and because it was felt he was rather impetuous and had poor coping skills, Dr D'Cruz felt it appropriate that his shoe laces be removed but thought the situation did not warrant removal of clothes or his placement into the care suite. He was not threatening suicide, had given all the appropriate reassurances as to his previous attempt, had succeeded in getting the single cell and the night sedation he wanted, and he himself felt he would be able to settle well. Dr D'Cruz instructed intermittent watch at all times. It turns out that is a standard procedure for all new inmates.
5. It is accepted by Mr Fortune that Dr D'Cruz made the following appropriate findings and posed to himself the appropriate question. JG was impetuous, had self harmed in the past, had done so twice, and his current emotional state was assessed as low but with a determination to regularise things in the future.
6. Although Dr D'Cruz it is submitted rightly accomplished all the above, he is criticised in that he based his decision upon what JG told him as to the future. It is submitted that he should have ignored what JG was saying because that was to introduce into the exercise a subjective element. As I understand it, Mr Fortune's contention is that there should have been in place a protocol, a guide to good practice, or the like, designed to allow the emergence of an objective view of the qualitative and quantitative routes to a proper decision. Not only the doctor, but also prison officers are entitled it is suggested to the protection a system of analysis and recording would have afforded them.
7. Upon arrival at reception in the YOI staff described JG as looking in a bad way, emotional, basically down, and jumpy. Another described him as looking simply dirty and dishevelled but speaking all right, recognising the prison officer and going through reception procedure. Hospital Senior Officer (HSO) Trevor was there and remembered him. When he interviewed JG, briefly, his impression was of someone angry and unwilling to be back in prison. It is now plain that the Prisoner Escort Record (PER) had not been marked so as to indicate that JG was at risk of self-harm. I share the view of the Coroner that whilst that is a departure from the system, it matters little, since there was in existence a F2052SH which was pointed out to staff.
8. HSO Trevor joined Dr D'Cruz and JG in the screening interview, and confirms that JG was quite adamant he was not going to share a cell with anyone because of the way he felt and how angry he was. After the three had separated HSO Trevor returned to the doctor, confirmed that JG was much quieter and more settled, and all parties were happy he should go into a single cell. There was discussion about the care suites which were not thought particularly appropriate for him because he didn't "actually seem to be saying "I am going to kill myself"". He told HSO Trevor it was just the way he had felt at court that day, was more settled would "get a good night's sleep and would be OK."
9. Upon the death of JG the prison service commissioned a report by a senior investigating officer, Alan Tee of Thames Valley Hampshire and the Isle of Wight. His report running to some 47 pages plus appendices was begun on the 23 rd February 2001. It is agreed that his terms of reference were not only wide but appropriate. He was charged with establishing the facts, assessing compliance with prison service policy as to the prevention of suicide and self-harm, recommending whether a separate investigation were necessary under the code of conduct and discipline, and with examining any action plan following previous deaths so as to ascertain the level of compliance. He spoke to the claimant, JG's stepfather, who gave him not inconsiderable information. He interviewed prison staff and Dr D'Cruz. There is no criticism of the depth of his investigation.
10. At 8.45pm the first entry in the night-watch log kept in the YOI notes that JG seemed to be asleep, and following entries are between 9 and 22 minutes apart. At 9.41pm JG rang his cell bell and asked could his nightlight be switched off. He was told that it could, but it would be switched on from time to time so as to check on him. At 10.56pm he rang again and asked to see a doctor. He was told he must wait until the morning. He also asked for pen and paper and was refused. The penultimate entry in the log is at 11.16pm and at 11.32pm JG was found hanging from the top bunk by a sheet. He was pronounced dead in hospital. Although the checks on him were not precisely on the quarter hour, there is no criticism.
11. Although Mr Fortune concedes that the request for pen and paper is innocuous, he attaches more importance to the request to see a doctor. It fortifies his submission that JG, to the properly informed eye or ear, was giving cause for concern. No one thought to ask him why he wanted to see a doctor. Having said that, Mr Fortune sensibly concedes that it does not follow that in answer to any such question JG would have told the truth, whatever the truth at that stage was. He argues that the cumulative effect of all that was known about JG amounts to system neglect, and should as an issue have been left by the Coroner to the jury. The care suite was readily available, indeed near to the single cell into which JG was put. The removal of his shoelaces indicates an awareness that there was some cause for concern. The findings of Tee are that the concerns at Reception were to process incoming prisoners at speed. No staff with the possible exception of HSO Trevor had anything but a perfunctory training in suicide watch or in dealing with those liable to self-harm. Dr D'Cruz had assessed JG's as "risky behaviour" when in the submission of the applicant he should have recorded him as being actively suicidal or likely to attempt self-harm. He should have been placed on constant rather than intermittent watch.
12. Thus it is submitted that there was ample evidence to support a verdict of accidental death aggravated by lack of care. The Coroner misdirected himself in describing the errors I have rehearsed as mistakes, and should have left to the jury the question whether they constituted system neglect.
13. For the defendant Mr Harrop-Griffiths argues that the submissions made by the Claimant are nebulous. Describing as "plucked from the air" the contention that more should have been done in the assessment process, he challenges whether a quantitative approach to the analysis of JG's conditions would have achieved anything. Although this court has been urged to accept that if an objective system of, perhaps, tick boxes were in place then sufficient ticks would automatically mean admission to a care cell, this is not supported by research, and is merely an assertion. Dr D'Cruz has some background in mental health. He spent 6 months of his GP vocational training course in general psychiatry which included attention to depressed and suicidal patients. He had been the lead care physician advising GPs as to the delivery of mental health care to patients. He asked himself the correct question. He focussed his attention on the self-harm form. To assert that a model labelled "correct" would have saved JG is based on nothing more than the precise science of hindsight, and is not made out on the evidence. The Coroner was correct when he reasoned that before him had been rehearsed a series of minor mistakes. He asked himself the appropriate question, whether there were evidence sufficient for a reasonable jury properly directed to conclude that there had been negligence. Also correctly, he answered in the negative.
14. In Regina v Coroner for North Humberside and Scunthorpe ex parte Jamieson  QB1, neglect is defined as gross failure (not suggested in this case) and can be a matter ancillary to a Coroner's verdict. It is not made out simply because someone had the opportunity to take his own life. Bingham LJ described lack of care as the obverse of self-neglect.
15. Jamieson was decided before the implementation of the Human Rights Act 1998. Some help as to the application of Article 2 is to be found in Jordan v United Kingdom (Application No 24746/94) TLR 18th May 2001. The applicant alleged that his son Pearse Jordan had been unjustifiably shot and killed by a police officer and there had been no effective investigation into or redress for his death. For these purposes the only relevance is at paragraph 105. Dealing with an unlawful killing, it establishes that Article 2 of the Convention, (right to life) read in conjunction with Article 1 (rights and freedom) requires some form of effective official investigation. The essential purpose is to secure effective implementation of domestic laws. Authorities cannot leave it to the initiative of the next of kin, it must be seen as independent from those implicated in the events, and must be effective in the sense that it is capable of leading to a determination of whether force used were or were not justified. There must be a sufficient element of public scrutiny to secure accountability. In all cases next of kin must be involved in the procedure. Applying that to this case Mr Fortune contends that unless a verdict of neglect can be left to a jury the family of JG is denied an effective investigation. Further, even were the report of Tee to fulfil the adjectival responsibility cast, nevertheless it is flawed because of the institutional connection between Tee and the prison service. It is ineffective because it cannot lead to a determination, and because of its restricted nature it lacks an effective element of public scrutiny. Neither, it is said, does it involve the next of kin.
16. The Defendant contends that the Tee report is more than adequate to fulfil the adjectival obligation. Even if this court were to find evidence of system neglect, nevertheless it could consider whether the Coroner were entitled to find that the Tee report satisfied Article 2. The terms of reference are broad and explicit. The family was consulted. The element of public scrutiny is adequate because the report was available to the next of kin, to the Coroner, and to this court.
17. In my judgment the Tee report does satisfy the adjectival requirements arising from Article 2, and is compliant with those criteria set out in Jordan insofar as they would apply to an allegation of negligence leading to death in custody.
18. Finally, Mr Fortune referred me to R (Amin) v Secretary of State for the Home Department and R (Middleton) v West Somerset Coroner  EWCA civ 390. In Amin's case the deceased had been murdered by a cell-mate with a history of violent and racist behaviour, and the Prison Service accepted liability. The Home Secretary refused the family's request for an independent public investigation into the death, and his decision was challenged on judicial review. In Middleton the deceased hanged himself whilst in prison. His family alleged that the Prison Service knew he was a suicide risk and should have put him on a suicide watch. At the inquest the Coroner directed the jury that no verdict should be framed so as to appear to determine any questions of criminal liability on the part of a named person. It could not return a verdict of neglect. The jury found a verdict of suicide whilst the balance of the mind was disturbed, and added a rider concluding that the prison service had failed in its duty of care. The Coroner refused the family's request that the note be appended to the inquisition. That decision was judicially reviewed as was his direction not to consider neglect.
19. In Amin the court decided that the state had a procedural duty to investigate deaths where there had arguably been a breach of its positive substantive duty under Article 2 to take steps to protect life where its servants ought to be aware that an individual in its care was at immediate risk of death or serious injury, and that it owed a pressing duty under Article 2 to minimise the risk of death in custody at the deceased's own hands. The nature and scope of the procedural duty because it was adjectival to the state's substantive duty had to be fashioned by the judgment of the domestic court. There were three interlocking aims to the duty viz minimising the risk of future like deaths, giving the beginnings of justice to the bereaved, and assuaging public anxiety. Fulfilment was not amenable to reduction to a catechism of rules, and what was required to satisfy a jury would vary with the circumstances. An allegation of negligence leading to death in custody although grave bore a different quality from a case where it is said the state had laid on lethal hands. Publicity and family participation were not necessarily discrete compulsory requirements distinctly and separately to be fulfilled in every case where the procedural duty to investigate was engaged. When assessing whether that procedural duty was satisfied, the court should look at the matter pragmatically in the round.
20. Allowing in part the appeal in the Middleton case, the court found that since an inquest jury's verdict of neglect in relation to a defect in the system could contribute to future avoidance of suicides, the inability to bring in such a verdict significantly detracted in some cases from an inquest's capacity to meet the procedural duty arising under Article 2. A Coroner, a public authority for the purposes of the Human Rights Act 1998, was required to act in a way compatible with a convention right. When it was necessary so as to vindicate Article 2 to return a verdict of neglect that was permissible. Such would only be necessary where in the judgment of the Coroner it could serve to reduce the risk of repetition of the circumstances which gave rise to the death.
21. In my judgment the Defendant's submissions are well founded. There was insufficient evidence upon which system neglect as explained in Middleton had contributed to JG's death. All that was before the inquest jury was a series of errors, none major, which was correctly identified as falling short of Middleton system neglect. Had Dr D'Cruz failed to consider the issues, or posed to himself the wrong questions, or had the decision been to place JG in a cell with no removal of his shoelaces, or had the intermittent checks been carelessly distanced, then the Coroner's conclusion might have been different. JG's seeking the attendance of a doctor does not in the context of this case elevate the refusal until morning to neglect. There was then an investigation which thoroughly and efficiently considered all issues.
22. For the reasons given this claim fails.
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