Orange v Chief Constable of West Yorkshire Police

JurisdictionEngland & Wales
JudgeLORD JUSTICE LATHAM
Judgment Date01 May 2001
Neutral Citation[2001] EWCA Civ 611
Docket NumberCase No: B2/2000/3098
CourtCourt of Appeal (Civil Division)
Date01 May 2001

[2001] EWCA Civ 611

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM LEEDS COUNTY COURT

HER HONOUR JUDGE FINNERTY

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Master Of The Rolls

Lord Justice Peter Gibson and

lord Justice Latham

Case No: B2/2000/3098

Karen Lesley Orange
(widow And Personal Representative Of The Estate Of Paul Alan Orange, Deceased)
Appellant
and
Chief Constable Of West Yorkshire Police
Respondent

Mr Tim Owen, QC (instructed by Ison Harrison & Co of Leeds for the Appellant)

Mr Christopher G Johnston (instructed by West Yorkshire Police Force Solicitor for the Respondent)

LORD JUSTICE LATHAM
1

On the 18th August 1991, the appellant's husband, Mr Orange, committed suicide by hanging himself by his belt from the horizontal bar to the gate to the cell in the Bridewell, Leeds, in which he was being held after his arrest for being drunk and disorderly. The appellant brought the claim on behalf of her husband's estate pursuant to the provisions of the Law Reform (Miscellaneous Provisions) Act 1934, and his dependants pursuant to the provisions of the Fatal Accidents Act 1976. She alleged that the police were negligent in failing to remove Mr Orange's belt from him, in failing to monitor him properly, and in placing him in a cell the gate to which provided a suspension point. On the 29th June 2000, Her Honour Judge Finnerty, dismissed the appellant's claims essentially on the ground that the police officers dealing with Mr Orange had no reason to believe that he presented a suicide risk, and therefore the respondent had no duty of care to protect him from the risk of suicide. The appellant now appeals against that judgment.

2

Mr Orange was 25 years old at the time of his death. He was married with two very young children. The judge concluded that he was a contented family man who had no history of depression or mental illness, who had everything to live for, and who had never given any indication of any intention or inclination to take his own life. His mother described him as follows:

"Paul did not smoke, he liked a drink, he was a daily drinker and when he was under pressure at work he drank more. I cannot be absolutely certain, but I would say he drank approximately 3 litres of cider a day If he wasn't drinking cider, he drank lager and lime. The last few weeks I had not seen him drinking at all. Very occasionally, on his birthday etc., he would go out and drink to excess."

3

It was to be Mr Orange's 26th birthday on the 19th August 1991. On the 17th, he went out with his friend Mark Mitchell to celebrate. They left home at about 7.30 p.m., and at the time of his arrest, at 5.40 a.m. Mr Orange and Mr Mitchell were on their way back home in the Chapeltown area of Leeds. Mr Orange had clearly had a substantial amount to drink. At the Inquest, Mr Hammond, a forensic scientist, concluded that the peak level of alcohol in his body would have been in excess of 296 mgs of alcohol in 100 mls of blood. It could have been as high as 330 to 340. Mr Hammond described this as a large amount of alcohol. He would have expected a person with this amount of alcohol in his body to be staggering around and to be very noticeably drunk.

4

Mark Mitchell described Mr Orange as having been drunk but not incapable. He said that he had not fallen down whilst they were walking home, but he was swaying about. Two police officers, PCs Holmes and Jenkinson, passed the two men in their police van; Mr Orange shouted at them to "fuck off". They stopped their vehicle, and went to speak to him. Mr Orange continued to be abusive. He was arrested for being drunk and disorderly. PC Jenkinson said:

"I saw him walking up the street, struggling to keep upright. It was obvious he had been drinking, but he was walking under his own steam. He was volatile when speaking to us but we understood one another. He was argumentative and swaying but made no attempt to get away from us, nor did he struggle."

5

He described Mr Orange as having been argumentative in the police van. When he was brought to the Bridewell, and was in the custody suite, he began to cry, saying "It's my birthday tomorrow, you can't do this to me.". The police officer concluded:

"I have a great deal of experience in dealing with drunks. He was a drunken young man who gave me no undue cause for concern."

6

The custody officer at the time was Michael Johnson, a retired police inspector who had completed 30 years service. He described Mr Orange as argumentative and verbally aggressive, but stated that there was no suggestion that he was suicidal or was going to harm himself. Indeed Mr Johnson allowed Mr Orange to retain all his clothing, including the belt in his trousers. When asked why he allowed Mr Orange to retain his belt, Mr Johnson said: "The question I asked myself was why should I take it from him?"

7

He was referred to paragraph 13 of Part G of the West Yorkshire Police Standing Orders in force at the time, which gave effect to the provisions of the Code of Practice under the Police and Criminal Evidence Act 1984 and s. 54(4)(a) of that Act. Paragraph 13 provided:

"Clothes and personal effects may only be seized if the custody officer

(a)

believes that the person from whom they are seized may use them to cause physical injury to himself or any other person …….."

8

He said that he had no reason to believe that Mr Orange would cause himself, or anyone else, any harm. Mr Kilmartin, a police sergeant with 27 years experience took over from Mr Johnson and was in fact responsible for booking Mr Orange in. He stated that during the booking in period Mr Orange became agitated and distressed, to the extent that Mr Kilmartin decided that he was not in a fit state to be told of his rights under the Police and Criminal Evidence Act at that time. Mr Orange was then escorted to the cell by a Mr Sugden, another retired police officer, who described him as abusive, drunk and excitable, querying the reason for his arrest. Mr Sugden described him as a "run of the mill drunk".

9

On that evidence, the judge found that there was nothing in the behaviour or demeanour of Mr Orange that indicated, or suggested, to the police officers who were in charge of him that he was a suicide risk.

10

Mr Orange was placed in Cell No 7, which was a large holding cell routinely used to hold prisoners arrested for being drunk and disorderly, and monitored by a closed circuit television camera. However the camera did not cover the area around the entrance to the cell which was recessed. Entry was gained through a door which opened outwards from the cell immediately inside which was a gate consisting of a steel frame with vertical steel bars and a horizontal crossbar approximately three feet from the ground, which opened inwards. The judge was referred to two Home Office Circulars. The first, HOC 92/68 dated 10th April 1968, stated:

"Police Authorities and police officers are aware of the need to ensure that prisoners in cells should not provide opportunity for a prisoner to do himself injury. A recent case where a prisoner has hanged by a strip of material torn from his pillow case and looped around a protruding pin of the upper hinge of the cell door has emphasised the risk presented by unforeseen hazards, and Chief Constables are requested to arrange for early inspection of all police cells to ensure there are no projections or fittings which prisoners might use to cause themselves injury."

11

The second, HOC 159/70 dated 22nd July 1970, under "Standards of Accommodation" stated:

"It is clearly impracticable to bring all cells and detention rooms up to the standard currently laid down for new buildings, but it is desirable that any police cells or detention rooms should meet the following criteria:

a.

Structure and fittings should be such as to minimise opportunities for a prisoner to do himself injury (see Home Office Circular No 92/68 ….."

12

Although the judge made no specific findings in this respect, it is clear that the steel gate did not comply with these recommendations. The cross bar at the top of the gate provided a ready means whereby a prisoner could hang himself, if he was so minded, as, in the event, did the horizontal bar to which we have referred.

13

Mr Orange was the only prisoner held in this cell. The judge found that Mr Orange was visited at 30 minute intervals between 6 a.m. and 9.30 a.m., and monitored on the television screen between visits. She accepted that until 9.30 a.m. he was sleeping on one of the benches in the cell, and that between 9.30 and 9.40 a.m. he was seen to be walking around the cell not apparently in any distress. At 9.40 a.m. the decision was taken to release Mr Orange. When he opened the cell door, the police officer responsible for monitoring him, PC Lobb, found Mr Orange hanging by his belt from the horizontal bar. It was not possible to resuscitate him.

14

In coming to the conclusion, as she did, that there was no reason for the police to consider that Mr Orange presented a suicide risk, the judge had regard to two further pieces of evidence. First was a report from Dr Peter Wood, a consultant forensic psychiatrist, based upon research material which was available in 1991. His conclusions were as follows:

"1.

Mr Orange was subject to gross intoxication with alcohol at material time.

2.

A person who is subject to extreme levels of intoxication cannot be said to be of "sound mind" in that such a person is unable to apply reason, his judgment is impaired, as is his emotional control.

3.

The risk of self harm by person grossly intoxicated should have been evident to those charged with Mr Orange's care whilst he was in...

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