Pounder v HM Coroner for the North & South Districts of Durham & Darlington
| Jurisdiction | England & Wales |
| Judge | The Hon Mr. Justice Burnett |
| Judgment Date | 23 February 2010 |
| Neutral Citation | [2010] EWHC 328 (Admin) |
| Docket Number | Case No: CO/5866/2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 23 February 2010 |
[2010] EWHC 328 (Admin)
Before: The Hon Mr. Justice Burnett
Case No: CO/5866/2009
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand, London, WC2A 2LL
Richard Hermer QC (instructed by Bhatt Murphy) for the Claimant.
Jonathan Hough (instructed by Hewitts) for the Defendant.
Neil Sheldon (instructed by Treasury Solicitor) for the 1 st Interested Party
Charlotte Ventham (instructed by Serco) for the 2 nd Interested Party
Hearing dates: 4 th February 2010
Introduction
1. This is an application for judicial review of the Coroner's refusal to recuse himself from the second inquest into the death of Adam Rickwood. He died on 8 th August 2004 when he took his own life in his bedroom cell at Hassockfield Secure Training Centre. He was only 14. An inquest was heard before HM Coroner for the North and South Districts of Durham and Darlington sitting with a jury over a 5 week period from 30 th April 2007. Some hours before his death, Adam Rickwood had been physically restrained. The question arose at the inquest whether that restraint was lawful. The Coroner was faced with conflicting submissions on that issue. He also faced conflicting submissions about whether it was necessary or appropriate for him to rule on the issue. In the event he declined to rule.
2. At the conclusion of the evidence, the jury was provided with 11 questions to answer in connection with Adam Rickwood's death.
3. An application for Judicial Review seeking to challenge the Coroner's decision not to rule on the legality of the restraint came before Blake J: [2009] EWHC 76 (Admin). He delivered judgment on 22 nd January 2009 and summarised the evidence that was given at the inquest concerning the restraint:
“[10] In broad terms the evidence adduced at the inquest reveals the following picture. In the early evening in question, Adam and another inmate were in their free association period outside their bedroom cells. A third inmate who had been deprived of association and sent to his cell for disciplinary reasons passed a note under his cell door to Adam in which abusive remarks were made about the female training officer (Ms Murray) who was supervising the trainees. As a result of disobeying an order to hand over the note, Adam was himself ordered to go to his cell by way of sanction. He refused to go to his cell protesting that he had done nothing wrong. He sat down and resisted requests to move without offering any violence to himself, other inmates or staff or inciting other inmates to violence or disorder. Ms Murray called a more senior officer (Mr Gardiner), whose attempts to persuade Adam to go to his cell were also unsuccessful and who in turn called for emergency assistance from other members of staff by way of a call known as first response. The evidence before the inquest suggested that calling for first response tended to result in the use of physical restraint. Officers Hamilton, Lowerson, Clark and Hodgson attended the scene in response to the call. As Adam still refused to leave the association area voluntarily two male officers (Hamilton and Lowerson) physically took hold of each of his arms. He struggled in resistance to this and so a third officer (Hodgson) controlled his head with both hands. There was further resistance and a fourth training officer (Clark) came from behind Adam and took hold of both his legs. He was lifted off the ground and moved face downwards to his cell where he was placed face down on the floor before the officers left the cell. Officer Horseman attended to make a video recording of the restraint. During the manoeuvre, Mr Hodgson, the officer who held Adam's head feared that Adam was trying to bite the officer's fingers and so applied what is known as a nose distraction technique. This is a short sharp movement applying force by fingers under the nostril against the counter-force of the other hand holding the back of the head. It is a pain-compliant technique. It made Adam very upset and angry during the rest of the manoeuvre and immediately thereafter. It caused his nose to bleed. This was not an unusual outcome of the application of this technique in Hassockfield. When he was locked into his cell and left alone for some 30 minutes he was bleeding from his nose and shouting that he would use violence on the officer who had applied the force. He smeared blood over the walls to his cell, smeared toothpaste over the spy-hole to his cell door and flooded his cell with water. Later he appeared to have calmed down, was allowed out on association, cleaned up his cell and spoke to his solicitor. He made it plain that he wanted to complain about the force used on him. Around 8.00pm he was seen by a nurse who noted a small amount of swelling over the bridge of the nose, and dried blood around the nose and mouth. She did not consider any hospital treatment was needed that evening. He went to bed and was last checked inside his cell around 9.30pm when he seemed to be calm and focused on the day ahead. He was observed to be moving around his cell through the hatch over the next two hours. At one point he was required to remove a piece of card blocking the hatch. He was found in his bedroom cell fatally asphyxiated shortly before midnight. The injuries he received in the restraint were minor and not the direct cause of death.”
Blake J concluded that it was impossible for an enquiry to be made into whether the force used on Adam Rickwood was appropriate or proportionate without the Coroner ruling or giving clear guidance to the jury on whether the force was lawful. As he put it, “a restraint can hardly be appropriate if it is unlawful.” [62]. He also concluded that the force used on Adam Rickwood was clearly unlawful having regard to the Secure Training Centre Rules 1998 (SI 1998/472) [“the Rules”], in particular Rules 36 to 38. In the period between the inquest and the hearing of the Judicial Review, the Court of Appeal had delivered judgment in R (C) v. Secretary of State for Justice [2008] EWCA (Civ) 882. That case concerned revisions to the Rules which the Court of Appeal considered were unlawful because, in particular, “pain compliance” techniques when applied to children would violate Article 3 of the European Convention on Human Rights [“ECHR”]. The nature of the restraint imposed on Adam Rickwood involved pain compliance. Additionally, the Court of Appeal had cause to consider the very question of the legality of the restraint of Adam Rickwood. It had been the submission of Serco, through its leading counsel at the inquest, that the restraint was lawful. Serco's witnesses (in circumstances to which I shall return) stated their belief that the restraint was lawful. The Court of Appeal noted that the view of the law so expressed was wrong (see paragraph [15] of the judgment of Buxton LJ).
4. Blake J. also considered the distinct question whether the restraint of Adam Rickwood some hours before his death was or may have been causative of the death. The Coroner and interested parties before him had argued that there was no causation. Blake J. disagreed. He considered that the question was open and that as a matter of inference a jury might conclude that the events so shortly before Adam Rickwood took his own life may have been a factor in his doing so, despite there being cogent evidence of an accumulation of factors that are likely to have led to his despair. Blake J. also considered whether, despite the failure of the Coroner to rule on the legality of the restraint, there should be a fresh inquest. That question was not clear cut. However, he concluded there should be a fresh inquest. In paragraph [80] of his judgment he said this:
“I therefore allow this application for judicial review. I will quash the inquisition reached by the jury and remit the matter to the Coroner to conduct a fresh inquiry in accordance with this judgment. The remit and scope of that inquiry will be for the Coroner having heard the submissions. I merely express the hope that the parties may be able to agree that certain matters are now not so controversial or unclear as to require extensive live evidence and cross-examination, and that there may be scope for an agreed statement of facts to be read or put to the jury. I am grateful to all counsel for their considerable assistance in this sad and challenging case.”
It is clear that the Judge expected that the matter would be remitted to the Coroner to conduct a fresh inquest having taken care with the interested persons to define its parameters. He anticipated that the Coroner, with the assistance of the interested persons, would devise mechanisms to avoid the unnecessary repetition of oral evidence which, following the earlier inquest, might be admitted in writing. No suggestion was made to Blake J. that the Coroner should not conduct the fresh inquest: it was not a matter upon which he was asked to rule.
This Application
5. The Claimant in these proceedings (as in the proceedings before Blake J.) is Adam Rickwood's mother. She seeks an order that the Coroner recuse himself from the second inquest. The Youth Justice Board [“YJB”], a body with statutory responsibilities for children in custody, is an interested party in these proceedings and was an ‘interested person’ at the inquest. Hassockfield STC is run by Serco Home Affairs Limited. They are an...
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