Petition of Niven, for judicial review of decision of the Lord Advocate [Outer House]
| Jurisdiction | Scotland |
| Judgment Date | 24 July 2009 |
| Date | 24 July 2009 |
| Court | Court of Session (Outer House) |
[2009] COSH 110
Outer House, Court of Session (Scotland), P1787/08.
Lord Malcolm
A O'Neill QC (instructed by Thompsons) for the petitioner; R Crawford QC (instructed by Scottish Legal Directorate) for the respondent Lord Advocate.
Whether a fatal accident inquiry was now required where a conviction had been overturned.
The petitioner's daughter died in 1995. Six months after the death K, the deceased's ex-boyfriend, had been found guilty of her murder on the basis of circumstantial evidence. At the trial three pathologists had opined that the deceased had died from asphyxia, and it had been alleged that her face had been pushed into a pillow when under the effects of temazepam intoxication. During the trial all parties had been unaware that a sample of blood analysed at a second laboratory had been found not to contain temazepam. Four years later K successfully appealed his conviction on the basis of new pathology evidence which materially disputed the mechanism of death and the relevance of temazepam.
The Lord Advocate refused the petitioner's request made after the appeal that a fatal accident inquiry (FAA inquiry) be held into the death under s1(1)(b) Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976. The petitioner sought judicial review of that decision arguing that an inquiry into her daughter's death that complied with Art 2 ECHR should be held. The respondent stated that no such inquiry was required as the death occurred before the commencement of both the Scotland Act 1998 and the Human Rights Act 1998. Further it was submitted that if Art 2 was engaged its obligations had been met through the investigations that had already been carried out in the course of the trial and appeal.
1. In this application for judicial review the petitioner challenges a decision of the Lord Advocate, dated 8 May 2008, refusing a request that a fatal accident inquiry be held into the circumstances surrounding the death of Dorothy Niven, the petitioner's daughter. The application is resisted by the Lord Advocate (the respondent). There is a lengthy and complicated background which it is appropriate to set out in some detail.
The background to the petition
2. On 19 December 1995 Richard Karling was found guilty by a jury in the High Court of the following charge, namely that:
"On 27 June 1995 at the Pancake Place, Union Street, Glasgow and at the house of 2 Silven Place, Busby you did assault Dorothy Bernadette Niven, then residing at 2 Silven Place, and did at The Pancake Place, administer temazepam to her whereby she became intoxicated and thereafter did convey her in a taxi from The Pancake Place, to the house of 2 Silven Place, and there did force her face into a pillow and asphyxiate her and murder her and you did previously evince malice and ill-will towards her".
Mr Karling appealed against his conviction and on 10 March 1999 the High Court issued an Opinion of the Court delivered by the then Lord Justice Clerk, Lord Cullen, Karling v HM AdvocateUNK1999 SCCR 359. That Opinion sets out many of the facts and circumstances relevant to the current application, and I refer to it for its full terms. It can be summarised as follows.
3. Prior to 27 June 1995 there had been a relationship between Mr Karling and Ms Niven. However by that date Ms Niven had another boyfriend who normally lived with her in Busby. Nonetheless she agreed to meet Mr Karling at The Pancake Place at about 4.30pm. Shortly after she met Mr Karling she appeared to become very unwell. She was described by witnesses at the trial as becoming floppy, like a rag doll, and sleepy. They both left in a taxi, Ms Niven still in a collapsed state, which took them to Ms Niven's home. The next day at about 4.30pm, after a 999 call made by Mr Karling for an ambulance to come to her house, ambulance men found her dead, lying in her bed face down on a pillow and partially clothed. The attending police surgeon considered that she had been dead for between 12 and 36 hours. In due course it was found that there was temazepam in her bloodstream at the level of 0.41mgs per litre of blood and that she had taken some paracetamol. There was no sign of forcible entry to the house.
4. At the trial the Crown case was based on evidence given by a number of pathologists that Ms Niven had been smothered, and that her ability to resist had been reduced by the temazepam in her system. The Crown relied on a number of pieces of circumstantial evidence pointing to the appellant as the perpetrator, maintaining that he had administered temazepam to her in a drink which she had consumed at The Pancake Place. The circumstantial evidence consisted essentially of matters of opportunity and influence, taken together with motive. The relationship between Ms Niven and Mr Karling had been of long-standing and at times it was stormy. Some years before her death she had obtained an interdict against him. He was found near her house on a number of occasions. She had told others that he was being a nuisance and would not leave her alone. There was evidence that he had said that if he could not have her, no one could. By the time of her death he had been replaced as her boyfriend by someone else. A video recording taken outside The Pancake Place suggested that after ordering coffee and orange juice Mr Karling had surreptitiously put something in a refuse bin outside
the premises. He had the opportunity to put temazepam in her orange juice and to smother Ms Niven after he returned with her to her house. No temazepam was found in her handbag nor elsewhere within her house. The taxi driver gave evidence that he did not hear any conversation between them, and in particular did not hear Mr Karling make any suggestion that she should go to hospital or to a doctor. Ms Niven appeared to be asleep. There was also evidence that Mr Karling had said to another man that his girlfriend had committed suicide.
5. At the trial a special defence of incrimination naming the then current boyfriend of Ms Niven was lodged on behalf of Mr Karling. Mr Karling gave evidence that when Ms Niven came into The Pancake Place she was sweating and her eyes were bloodshot (an observation not accepted by members of the staff). He gave her sugar because on an earlier occasion she had told them that she was diabetic. In the taxi she resisted his suggestion that she should go to a hospital or to see her doctor. Mr Karling continued that at her house she remained unwell and lay down. He remained in the house, looking in to see if she was alright at 15-minute intervals. At one stage she got up and went into a back bedroom where she fell heavily against a calor gas heater. When she arrived at The Pancake Place she told him that she had a headache, and that she wanted to sleep and would take something to help her to do so. He then left the house. He telephoned her place of work at her request. He went to her house the following afternoon with a set of keys which she had given to him the day before. When he went into her bedroom and saw her body he was aware of a smell. He tried to waken her by shaking her. He noticed a mark on one of her arms. Her underpants were stained at the crotch. He pulled up her pants to cover her buttocks and put her skirt over her to preserve her modesty.
6. None of the pathologists who gave evidence at the trial had examined the body of Ms Niven in the place where it was found. The attending police surgeon, Dr McNaught, stated in evidence that he was not able to arrive at a cause of death, but it did not appear to him that Ms Niven's death was suspicious. A number of photographs were taken. However this was after Dr McNaught, with the assistance of two police officers, had lifted the body. He said that the body had been replaced where it had been, but there had been some alteration in the position of Ms Niven's hair. The first post-mortem examination was carried out by Dr Louay al-Alousi at about 2.30pm on 30 June 1995. Since the death was not treated as suspicious he carried out this examination alone. At that time he considered the cause of death to be "acute pulmonary oedema and congestion". This was stated to be subject to a full toxicological report, including full drug analysis. However he later produced a report dated 11 October 1995 in which he gave the cause of death as follows:
"1a. (ie disease or condition directly leading to death) acute pulmonary oedema and congestion;
1b. (ie due to or as consequence of) inhalation of gastric contents;
1c. (ie due to or as consequence of) temazepam toxicity and smothering."
As can be seen from his report, this arose out of his consideration of the photographs, the level of temazepam which had been found in Ms Niven's bloodstream, and a number of pieces of information about the actions of the appellant and the deceased which had been related to him. In his report he expressed the opinion that temazepam could have predisposed the deceased to inhalation of gastric contents and death. He also stated:
"The photographs of the scene were suggestive of the face of this woman being compressed and buried in the pillow which could raise the possibility of asphyxia by smothering. There was, in the post-mortem examination, a paucity of marks of asphyxia, apart from suffusion of the eyes which could be a reflection of the drug toxicity or ingestion. However, smothering of a weakened victim, for example through a drug influence, was less likely to be associated with classical signs of asphyxia as the victim was not expected to show struggles or efforts to breathe."
7. Dr Marie Cassidy, along with Dr Marjorie Black, carried out a further post mortem examination of the body on 13 July 1995. In the course of their examination they found that Ms Niven has sustained a fractured rib, which they considered was likely...
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...cases were considered by Lord Malcolm in a decision of the Outer House of the Court of Session in Niven v Lord Advocate2009 SLT 876, [2009] Inquest LR 194, a judicial review challenge to a refusal to hold a fatal accident inquiry into a death for which there was no suggestion of state respo......