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CO/4227/2002

Neutral Citation Number: [2003] EWHC 2739 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT


Royal Courts of Justice

Strand

London WC2

Friday, 25 July 2003

B E F O R E:

MR JUSTICE SILBER

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THE QUEEN ON THE APPLICATION OF IRENE STANLEY

(CLAIMANT)

-v-

HM CORONER FOR INNER LONDON

(DEFENDANT)

COMMISSIONER OF POLICE OF THE METROPOLIS

(1ST INTERESTED PARTY)

INSPECTOR SHARMAN

PC FAGAN

(2ND INTERESTED PARTIES)

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Computer-Aided Transcript of the Stenograph Notes of

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- - - - - - -


MR G WONG (instructed by Hickman & Rose) appeared on behalf of the CLAIMANT

MR C LEWIS (instructed by London Borough of Camden) appeared on behalf of the DEFENDANT

MR M EGAN (instructed by Metropolitan Police Service) appeared on behalf of the 2ND INTERESTED PARTIES


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J U D G M E N T

(As Approved by the Court)

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Crown copyright©


Judgment

1. MR JUSTICE SILBER: Mrs Irene Stanley ("the claimant"), who is the widow of Mr Henry Stanley, sought a declaration that the June 2002 inquest into the death of her husband did not constitute a sufficient inquiry for the purpose of domestic purposes and/or of Article 2 of the European Convention on Human Rights. On 8 April 2003, at the conclusion of the hearing of this application, I ordered first that the verdict at the June 2002 inquest should be quashed, and second, that there should be a new inquest conducted by a different Coroner. I stated that I would give my reasons for those decisions later and I duly did so in my first judgment delivered on 29 April 2002 ("the April judgment"). This judgment must be read in conjunction with the April judgment, which sets out the background to the present application, as well as my conclusion on the issues raised on the substantive hearing.

2. At the end of the hearing in April, I adjourned the question of costs and I ordered that any party who wished to seek an order for costs against any other party in respect of any matter arising out of my order would first have to notify all the other parties to this application, and second, have to serve a skeleton argument. I also made arrangements for skeleton arguments to be submitted by all interested parties in relation to any application for costs. I stated that I would make a costs order after considering the skeleton arguments. I am grateful to counsel for the claimant and for the defendants of the officers for their helpful written skeleton arguments, which have enabled me to reach some conclusions, which I will now explain.

3. The claimant sought three different orders for costs and two of them are contested. The first of those contested applications is that the defendant Coroner should pay the claimant's costs of the judicial review proceedings up to the time of service of the claim form, the statement of facts and the grounds for review form. The second contested application is that the two individual police officers who were responsible for shooting Mr Stanley and who are the second interested parties on the claim should pay half of the claimant's costs for the preparation and conduct of the full substantive hearing. The uncontested application for costs is that the claimant's costs should be subject to a public funding assessment, and subject to the production by the claimant's solicitor of a suitable certificate, I so order.

4. I now turn to consider the outstanding contested applications. It is necessary at this stage to mention the grounds on which the claimant sought to challenge the verdicts. The grounds were that the defendant Coroner at the June 2002 inquest:

5. 1. Erred both in admitting evidence of previous convictions of the deceased and also, in doing so, without first seeking, considering and ruling on submissions on the visibility of such evidence from representatives of the deceased's family in the absence of the jury (the previous convictions issue).

6. 2. Erred both in admitting evidence of the recommendations of the Crown Prosecution Service that there was to be no criminal proceedings against Inspector Sharman and Police Constable Fagan, and also doing so without first considering and ruling on the admissibility of such evidence and representatives of the diseased's family in the absence of the jury (the CPS recommendation issue).

7. 3. Erred in failing to give any sufficient coherent reasons for some of his important rulings and decisions (the reasons issue).

8. 4. Failed or refused to call any expert firearms witnesses, save for the commanding officer of Inspector Sharman and Police Constable Fagan (the expert evidence issue).

9. 5. Not pleading a verdict of unlawful killing for consideration by the jury when there was sufficient evidence to do so (the unlawful killing verdict issue).

10. 6. Erred in not leaving a verdict of failing to take reasonable care for consideration by the jury when there was sufficient evidence to do so (the neglect verdict issue).

The claim for costs against the Coroner

11. The Coroner who conducted the inquest did not reply to any letters before action and he retired prior to the service of the Acknowledgment of Service. In its capacity as the employer of the Coroner, the first defendant has not sought to contest any part of the claim and has indicated in its Acknowledgment of Service that it would not contest the claim. At the oral permission hearing on 4 February 2003, the defendant appeared through counsel and indicated that it would take an entirely neutral position, save that a readiness was expressed by the defendants to assist the courts. It did not adduce evidence or appear at the substantive hearing.

12. It is common ground between the parties that the liability of a Coroner for costs of another party at an inquest was accurately described by Simon Brown LJ in R v HM Coroner for Inner London ex parte Touche [2001] QB 1206, when he said that:-

"A judicial officer (assuming only that he has done nothing calling for specific disapproval) can generally, by choosing not to appear, exempt himself from any costs liability even though his decision is found unlawful" [56].

13. It is convenient at this stage to deal with some general submissions that have been made by Mr Lewis, in writing, on behalf of the defendant.

14. First, it is said that there is nothing in the transcript of my April judgment suggesting that the Coroner had acted in a way calling for strong disapproval. It must not be forgotten that the purpose of that judgment was to explain why the verdict at the inquest had to be set aside and why a new inquest had to be ordered. It was not appropriate at that stage for me to consider or to comment in the April judgment on the gravity of errors made by the Coroner. Indeed, the Coroner had not played any part in the judicial review proceedings before me, and therefore, in the absence of submissions on his behalf, it would have been unfair for me to comment on the seriousness or otherwise of his errors.

15. Next, Mr Lewis on behalf of the Coroner points out that the claimant is legally aided and as Jervis on Coroners at paragraph 19.46 states:

"One additional factor against making a costs order was where the applicant is legally aided and therefore it would only be paying the public purse."

With respect, the overriding principle in connection with the liability of the Coroners was, as explained by Simon Brown LJ, in the passage to which I have referred.

16. Third, it is pointed out by Mr Lewis in his written skeleton argument that two of the six grounds of challenge in the June 2002 inquest were not argued. As I explained in paragraph 7 of the April judgment, that as a result of the agreement by the officers, the verdict of the June 2002 inquest would have be quashed. I then raised with counsel whether it was necessary or worthwhile for me to consider the two issues upon which there was no agreement. Both sides then agreed that there was no point in making submissions on the issues of the unlawful killing and neglect verdict issues because the decisions and directions at the June 2002 inquest that were given were fact-sensitive as they were based on the evidence given at the June 2002 inquest. The evidence to be adduced at the next inquest is likely to be so different from that given at the June 2002 inquest that any views that I might have expressed in my April 2002 judgment would have been of no value at the new inquest.

17. To my mind, the determination of the claimant's claim for costs against the Coroner depends upon whether or not it can be shown that "the Coroner had done something calling for strong approval".

18. In their written submissions in support of their claim for costs, counsel for the claimant relies on two matters which they say indicate that the Coroner had acted in a way calling for strong disapproval. First, it is said that the Coroner failed to comply with an absolute basic judicial requirement of giving substantial reason or reasons for his decisions, which were crucial to the conduct of the inquiry. The matters to which this complaint refer are the absence of any reasons being given by the Coroner for his decision not to leave to the jury consideration of the verdicts of unlawful killing and of failing to take reasonable care or of neglect in circumstances where there was sufficient evidence to do so. Another complaint related to the Coroner's failure to give reasons for his decisions on the previous convictions issue and on the CPS recommendation issue.

19. A second ground relied on by the claimant was that the Coroner behaved in a way which called for strong disapproval when he refused to hear submissions from counsel for the claimant concerning the admissibility first of the previous convictions of the claimant and second of the CPS's provisional conclusions that the officers would not be prosecuted.

20. To my mind, a fundamental obligation of a Coroner, or any judicial officer in those circumstances, is first to invite representations, and second, to give reasons for any rulings of basic importance in the conduct of the inquest. In this case, the circumstance in which Mr Stanley died raised a very serious issue of whether there should be a verdict of unlawful killing or failing to take reasonable care and neglect. After all, Mr Stanley was shot and killed by police officers when all he was doing was carrying a coffee table leg.

21. I bear in mind in considering the submissions made by the claimant, the importance of the inquest in satisfying the State's obligations under Article 2 of the European Convention on Human Rights. I set those out in detail in paragraph 13 of my April judgment. At this stage it is important to bear in mind that the use of fatal force by agents of the State requires the most careful scrutiny as:-

"A credible accusation of murder or manslaughter by State agents will call for an investigation of the utmost rigour conducted independently for all to see." Per R (Middleton) v Secretary of State for the Home Department 3 WLR 505 at para 62.

22. It is also worth remembering that the obligation to investigate arises because Article 2 of the Convention enshrines a fundamental human right. When it is arguable there had been a breach of this Article, the State has an obligation to procure an effective and official investigation: see Amin paras 53 and 54. It is also clear that, save in exceptional circumstances, a Coroner's inquest shall or may be the appropriate forum complying with the State's obligation to carry out the official investigation: see R v DPP ex parte Manning and Melbourne [2000] 3 WLR 463, para 33, and R v Secretary of State ex parte Wright and Bennett [2001] Lloyds Rep Medical 478, para 43.4.

23. In Amin , Lord Woolf CJ giving the judgment of the Court of Appeal stressed that, in carrying out his duties to ensure that a proper investigation is carried out, a Coroner is concerned with procedural obligations under Article 2 which are to:

"Promote those interlocking aims, to minimise the risk of future like deaths, to give the beginning of justice to the bereaved and to assuage anxieties of the public." [62]

24. It is worthwhile bearing in mind in this case that those were the duties imposed on the Coroner in this case. Set against that background and the particular facts of this case, I consider that the failure of the Coroner to give any reasons for rejecting the claimant's submission on the two verdict issues constituted, in the circumstances of that case, something calling for strong disapproval from this court. The Coroner must have appreciated that these issues were of critical importance to the claimant and for fulfilling the State's Article 2 obligations. If I had been in any doubt about this, the failure on the part of the Coroner to give reasons for the rulings was compounded by his failure to give reasons for his rulings in respect of the previous conduct and the CPS's provisional view issues.

25. A further important reason why the Coroner's conduct called for strong disapproval is the way in which he refused to hear legal arguments in relation to the admissibility of the convictions and the CPS's provisional conclusions despite attempts made by leading counsel for the family to be heard. In this connection, I refer to what I said in paragraphs 14 and 17 of the April judgment in relation to the previous convictions and in paragraphs 27 and 29 of my April judgment in dealing with the CPS's provisional conclusion issue. It seems to me that these errors, whether looked at individually or, more importantly, looked at cumulatively, constitute serious errors by the Coroner which necessitated and caused the commencement of judicial review proceedings. Thus the claimant should be entitled to recover these costs against the claimant. These costs were, after all, incurred solely as a result of serious errors of the Coroner and they are sufficiently serious to justify an order that the defendant pay the costs incurred in commencing the present judicial review proceedings.

26. If the Coroner had been the only party involved in these proceedings, there would indeed have been an order made by consent setting aside the verdict after the service of the claim form. Thus I would limit any order for costs against the Coroner up to the time of the service of the claim form, the statement of facts and the grounds for review form. Hopefully the quantification of these costs can be agreed.

The claim for costs against the officers

27. The case for the claimant is that, although the officers accepted at the April hearing the grounds of challenge which I described in the April judgment as the previous convictions issue, the CPS recommendation issue and the reasons issue, the officers had indicated right up until the date of that hearing that they would still be contesting the remaining three issues, which were the expert evidence issue, the unlawful killing verdict and the neglect verdict issues.

28. The claimant points out that on the day of the substantive hearing, the officers for the first time conceded on the expert evidence issue. As I have previously explained, I then suggested that there was no point in dealing with the verdict issues.

29. The skeleton argument of the claimant stresses that prior to the date of the substantive hearing, the officers laboured under errors of law in relation to the expert witnesses issue and in the words of the skeleton: "the fact they chose not to concede this issue until the 59th minute of the 11th hour". This fact, according to the claimant, supports the argument that the second interested party should bear some burden of the costs. The officers disagree and they state that the claimant sought concessions on all the grounds, including on the verdicts issues. The claimant points out that at the oral permission hearing on 4 February 2003, her counsel said:-

"7. The position is this. There is no agreement on behalf of the interested parties, the two officers, to all of the grounds that are advanced in the notice of application. In particular, the interested parties do not accept as correct, although they accept that it is arguable for present purposes, the first three grounds, which relate to whether the coroner was wrong to withdraw unlawful killing from the jury, whether he was wrong to not leave a verdict of failed to take reasonable care, or neglect, and the issue of not calling the expert witness. The individual officers do not accept that those three grounds would succeed at a full hearing.

"8. We take the view that it is important to resolve those issues because if we are wrong on those three grounds, then there is a very real question as to whether it would be necessary or desirable in the interests of justice for there to be a fresh inquest in the sense that the other three grounds, which raise what we say are serious points which went wrong at the inquest, may not either individually or collectively justify the holding of a fresh inquest, not least because they would not necessarily result in a different outcome in terms of verdict."

30. To my mind, the critical factor is that, in their Acknowledgment of Service, which was received in the Administrative Court Office on 11 October 2002, the officers said they then intended to contest all of the claims. It was explained on that form that "the officers object to the application for an order quashing the verdict of the Coroner's jury, subject to any submissions made by Her Majesty's Coroner for Inner London and the Commissioner for the Metropolitan Police". Thus, at that stage, the claim for the relief sought, namely an order quashing the verdict of the June 2002 jury, was in dispute. The claimant was perfectly entitled and indeed was obliged to pursue her claim which has subsequently been vindicated with the quashing of the verdict at the June 2002 inquest.

31. On 15 November 2002, an important development occurred as the solicitors for the officers wrote to the Administrative Court stating that:

"Our clients have now had the opportunity to confer with counsel and we will formerly notify the court that, should the court feel it appropriate to grant the relief sought, the officers will not seek to oppose the making of an order quashing the Coroner's verdict. We should point out that the officers do so on the basis that they do not intend to address the court in argument on the following grounds [namely the previous convictions, the CPS recommendation and the reasons issues]".

The letter went on to state that the remaining issues, namely the verdict issues and the expert evidence issues, were contested on behalf of the officers, but then it is stated that "it is however conceded that the previous convictions, the CPS recommendation and reasons issues in combination will provide a sufficient basis to grant the relief sought".

32. The letter concluded by saying that "should the court grant permission but require to hear oral argument, the officers would wish to be heard on [the verdicts and expert evidence issues]".

33. The letter was important for two reasons. First, on and after receipt of the letter of 15 November 2002, it was known that the officers would agree that the verdict at the June 2002 inquest would be quashed. They were the only party at that stage who was still challenging the relief sought by the claimant. Second, that letter was the first indication from the officers that they agreed that the verdict of the June 2002 inquest should be quashed. Until the claimant had knowledge of this important fact, she was quite entitled to continue to pursue her claim for judicial review and she should be entitled to her costs.

34. On the day of the substantive hearing, the officers conceded on the expert evidence issue, and then as a result of prompting from me as I have explained, neither side pursued the verdicts issue.

35. A determinative factor in this application for costs is that, after the officers had agreed in their 15 November 2002 letter that the verdict at the June 2002 inquest had to be quashed, both sides could and should then have obtained an order to that effect. For their own reasons, both sides chose not to do so. Indeed, it is very likely that any judge who would have heard the substantive hearing for the application for judicial review would not have considered either the expert or verdict issues, bearing in mind, first, that he would have had to quash the verdict in the light of what had been conceded by the interested parties, and second, that any decision on the contested issue would only relate to the evidence at the June 2002 inquest and so would be of little value for the Coroner at the inquest.

36. To my mind, although I am sure that both sides had their own reasons for wishing to pursue the issues in dispute after receipt of the letter of 15 November 2002, the resolutions of those issues would not have affected the outcome of the substantive hearing, which was that the verdict should be quashed. Thus, in those circumstances, I conclude that the claimant is not entitled to any costs after, say, seven days from the time when her solicitors received notification set out in the letter of 15 November 2002, that the officers did not seek to challenge the decision that the verdict at the June 2002 inquest had to be quashed.

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