R (Moss) v HM Coroner for the North and South Districts of Durham and Darlington
| Jurisdiction | England & Wales |
| Judge | Mr Justice Underhill |
| Judgment Date | 28 November 2008 |
| Neutral Citation | [2008] EWHC 2940 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/8579/2007 |
| Date | 28 November 2008 |
[2008] EWHC 2940 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Underhill
Case No: CO/8579/2007
Stephen Cragg (instructed by Ben Hoare Bell Solicitors) for the Claimant
Richard Perks (instructed by Hewitts) for the Defendant
Hearing date: 22 nd September 2008
INTRODUCTION
The Claimant's father, Frank Moss, died on 14 th March 2003. He had been treated during the previous year for lung cancer but secondary tumours in the brain had recently been diagnosed and although I have not seen explicit evidence to this effect it would appear that his illness was terminal. He was being treated (as an NHS patient) by his general practitioner, Dr. Howard Martin, who saw him twice on the day before he died and gave him two injections. Dr. Martin was subsequently charged with the murders of Mr. Moss and two other patients, Mr. Harry Gittins and Mr. Stanley Weldon. The essence of the case against him was that he had deliberately given all three patients excessive quantities of opiates with the intention of terminating their lives. He was tried at Teesside Crown Court before Forbes J and a jury over a period of six weeks in late 2005. Dr. Martin did not give evidence at the trial. On 14 th December 2005 he was acquitted on all charges.
An inquest into the death of Mr. Moss was opened in the ordinary way by H.M. Coroner for the Darlington and South Durham/North Durham districts; but it was adjourned pending the decision in the criminal proceedings, pursuant to s. 16 (1) of the Coroners Act 1988. S. 16 (3) of the Act provides that where an inquest has been adjourned on that basis:
After the conclusion of the relevant criminal proceedings … the Coroner may … resume the adjourned inquest if in his opinion there is sufficient cause to do so.
Following Dr. Martin's acquittal, solicitors acting for the family of Mr. Gittins invited the Coroner, Mr. Andrew Tweddle, to exercise his powers under s. 16 (3) to resume the inquest. By letter dated 2 nd July 2007 he declined to do so. On 23 rd August 2007 the solicitors – who were now acting for the families of all three of the men with whose murder Dr. Martin had been charged – wrote at length to the Coroner inviting him to reconsider his decision and, if he maintained it, to give his reasons for doing so. By letter dated 24 th August 2007, the Coroner replied maintaining his original decision and giving his reasons in terms which I will set out in due course.
The Claimant has applied for judicial review of that decision. On 17 th March 2008 Irwin J. refused permission. At a renewed permission hearing before Keith J. on 2 nd July a direction was made for a “rolled-up” hearing – that is, that the application for permission be heard on an inter partes basis, with the substantive application to be determined on the same occasion if permission were given. That is what is now before me. It is convenient to say at this stage that I grant permission. The Claimant has been represented by Mr. Stephen Cragg and the Coroner by Mr. Richard Perks. I am grateful to them both for their careful submissions. Dr. Martin and the County Durham Primary Care Trust (“the Trust”) were joined as interested parties but have taken no part in the proceedings.
THE BACKGROUND LAW
The relevant statutory law is straightforward. The primary obligation on a Coroner to hold an inquest arises under s. 8 of the 1988 Act. S. 11 (5) provides that the formal “inquisition”, which embodies the verdict,
… shall set out, so far as such particulars have been proved –
(a) …
(b) how, when and where the deceased came by his death.
S. 16 is headed “Adjournment of inquest in event of criminal proceedings”. I have already referred to s-ss. (1) and (3). I should refer also to s-s. (7), which is in the following terms:
Where a coroner resumes an inquest when it has been adjourned in compliance with subsection (1) above –
(a) the finding of the inquest as to the cause of death must not be inconsistent with the outcome of the relevant criminal proceedings;
(b)–(c) ….
If I were concerned only with those provisions, any challenge to the decision of the Coroner not to resume an inquest pursuant to s-s. (3) would depend on whether the exercise of his discretion could be impugned on ordinary judicial review principles. However, the position is complicated by the impact of art. 2 of the European Convention of Human Rights, which protects the right to life. It has for some time been established in the case-law of the European Court of Human Rights (“the ECHR”) that it is a necessary corollary of the express terms of art. 2 that the state is obliged to ensure, by one means or another, that there is an appropriate investigation into the death of any person occurring as a result of the acts or omissions of “state agents”, although the nature of the obligation will vary according to the circumstances. In this country a coroner's inquest is evidently one of the principal means by which that obligation might be discharged, but the well-recognised limitations on the scope of the issues to be reviewed on a conventional inquest under the 1988 Act – authoritatively stated in R v HM Coroner for North Humberside and Scunthorpe, ex p Jamieson [1995] QB 1– may result in it being ineffective to satisfy the requirements of an “art. 2-compliant” investigation. In two recent cases in the House of Lords — R (Middleton) v West Somerset Coroner [2004] 2 AC 182 ([2004] UKHL 10) and R (Sacker) v West Yorkshire Coroner [2004] 1 WLR 796 ([2004] UKHL 11)– it has been held that, if an inquest is to be the primary means of discharging the state's obligations under art. 2, it will be necessary for the verdict to cover more ground than an inquest conducted purely by reference to the provisions of the 1988 Act: in such an inquest the statutory requirement to inquire into “how” the deceased came by his death must be treated as encompassing not only “by what means” but “in what circumstances” he did so (see para. 35 of the opinion of the Committee in Middleton, delivered by Lord Bingham (p. 202)). The distinction between “ Jamieson-type” and “ Middleton-type” inquests was re-affirmed by the House of Lords in R (Hurst) v London Northern District Coroner [2007] 2 AC 189 ([2007] UKHL 13), although differing views were expressed as to whether in practice the difference in the scope of the actual inquiry to be undertaken in the two types of case was very great. The other important decision of the House of Lords in this field is R (Amin) v Secretary of State for the Home Department [2004] 1AC 653 ([2003] UKHL 51): the case was not directly concerned with an inquest, but there was authoritative consideration of the requirements of an art. 2-compliant investigation following a death where art. 2 was engaged (in that case a death in custody).
There have been a number of recent cases both in the ECHR and in the English courts concerning the scope of the obligations imposed by art. 2 as regards the investigation of deaths said to have occurred as a result of the acts or omissions of doctors or other medical staff – to which I will refer, albeit somewhat clumsily, as cases of “medical death”. The essential cases are: (in the ECHR) Erikson v Italy (1999) 29 EHRR CD 152, Powell v United Kingdom (2000) 30 EHRR CD 362, Sieminska v Poland (unreported, 29 March 2001), Calvelli v Italy ( Reports of Judgments and Decisions 2002-I, 1), and Vo v France (2005) 40 EHRR 259; and (in the English courts) R (Khan) v Secretary of State for Health [2004] 1WLR 971 ([2003] EWCA Civ 1129), R (Goodson) v Bedfordshire and Luton Coroner [2006] 1 WLR 432 ([2004] EWHC 2931(Admin)) and R (Takoushis) v Inner North London Coroner [2006] 1 WLR 461 ([2005] EWCA Civ 1440). There are some difficult questions of jurisprudential analysis about precisely how the obligations considered in these cases are to be characterised; but I need not enter into that question for present purposes, since the substantive position has been authoritatively established by the decision in Takoushis. It can be summarised as follows:
(1) In any case where the doctors or staff in question potentially bear responsibility for the loss of the patient's life, art. 2 is engaged; but it is necessary to distinguish between two aspects of the obligations arising under art. 2 – first, the core positive obligation on the state to protect life; and secondly, a distinct obligation to establish a framework under which a medical death can be effectively investigated (see Takoushis at para. 98, approving, subject to some qualification, para. 59 (iii) of the judgment of Richards J in Goodson ). Which of those aspects of art. 2 is engaged, and the consequences in either case, depends on the nature of the potential responsibility. Specifically:
(2) Where the nature of that responsibility amounts to “simple negligence”, that is not to be regarded as a breach of the state's positive obligation to protect life, and art. 2 is engaged only in the latter of the two senses identified above. In such a case it is sufficient that the state should have provided
… a system which provides for the practical and effective investigation of the facts and for the determination of civil liability. Unlike in the cases of death in custody, the system does not have to provide for an investigation initiated by the state but may include such an investigation. Thus the question in each case is whether the system as a whole,...
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