R Mr Peter Skelton and Mrs Elizabeth Skelton v Senior Coroner for West Sussex
| Jurisdiction | England & Wales |
| Judge | Lord Justice Popplewell |
| Judgment Date | 23 October 2020 |
| Neutral Citation | [2020] EWHC 2813 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3922/2019,CO/3922/2019 |
| Date | 23 October 2020 |
[2020] EWHC 2813 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Popplewell
Mr Justice Jay
Case No: CO/3922/2019
and
Heather Williams QC (instructed by Hodge Jones & Allen Solicitors) for the Claimants
Bridget Dolan QC (instructed by West Sussex County Council) for the Defendant
Emma Price (instructed by Weightmans) for the First Interested Party
Joanne Lee for the Second Interested Party
Hearing dates: 6 to 8 October 2020
Approved Judgment
This is the judgment of the court to which we have both contributed.
Introduction
The Claimants are the parents of Susan Nicholson, who was murdered on 17 April 2011 by her then partner, Robert Trigg. Her death was investigated by Sussex Police who initially considered it to be non-suspicious. Following a lengthy campaign by the Claimants, a re-investigation commenced in 2016 which ultimately led to Trigg's conviction for Susan's murder on 5 April 2017 at a trial at Lewes Crown Court presided over by Simler J (as she then was).
In light of Trigg's conviction, HM Senior Coroner for West Sussex (“the Coroner”) applied to the High Court for an order under s.13 of the Coroners Act 1988 to quash the original inquest verdict of accidental death which had been returned on 8 November 2011, in order to enable her to substitute a fresh verdict (strictly speaking, conclusion) of unlawful killing. Whipple J made such an order, unopposed, on 15 October 2018, and ordered a fresh inquest. The Coroner then indicated that she intended to list a short hearing in order accurately to record the cause of death as unlawful killing. That course was opposed by the Claimants, who sought a wider inquest into the circumstances of Susan's death, and in particular an investigation into whether the circumstances involved breaches by Sussex Police of duties imposed by article 2 of the European Convention on Human Rights (“ECHR”). Those breaches were said by the Claimants to arise not only in relation to events shortly before Susan Nicholson's death, but also in relation to the investigation by the Sussex Police into the death of one of Trigg's former partners, Caroline Devlin, some five years earlier in March 2006. That too was treated as non-suspicious at the time, but following the renewed investigation in 2016 and 2017 Trigg was charged with her manslaughter and convicted of that offence at the same trial as his conviction for the murder of Susan Nicholson.
In detailed representations to the Coroner, the Claimants submitted that the available material disclosed arguable breaches by Sussex Police of substantive article 2 duties falling into two categories:
i) failure to conduct an effective investigation into the death of Caroline Devlin; and/or
ii) failure to take reasonable steps to protect Susan Nicholson in the months before her death against the real and immediate risk to life posed toward her by Trigg.
In support of the arguable breaches in both categories, the material relied on by the Claimants included material in the possession of Sussex Police, or said to have been reasonably available to them, which evidenced controlling, aggressive and violent behaviour by Trigg not only towards Caroline Devlin and Susan Nicholson, but also towards others of his former partners.
The Claimants submitted that as a result of such arguable substantive breaches of article 2 by Sussex Police, the Coroner came under the procedural article 2 duty to conduct an inquest into the circumstances of Susan Nicholson's death in accordance with ss. 5(2) and 10(1)(a) of the Coroners and Justice Act 2009 (“ CJA 2009”), by way of what is often called an article 2 compliant or Middleton inquest, after the decision of the House of Lords in R (Middleton) v West Somerset Coroner and another [2004] 2 AC 182, the effect of which would be that the inquest would consider the alleged police failures.
On 2 August 2019 the Coroner ruled that there was no arguable breach of any article 2 duty by Sussex Police in either of the categories alleged, and that accordingly she was not obliged to carry out an article 2 compliant inquest and did not intend to do so. This is the ruling which is challenged by the Claimants in the present judicial review proceedings. The challenge is opposed by the Chief Constable of Sussex Police and by Trigg. The Coroner takes a neutral stance.
Within these judicial review proceedings Trigg has issued an application notice seeking to challenge an earlier ruling by the Coroner that she was bound to reach a conclusion which was consistent with Trigg's conviction, namely one of unlawful killing. He seeks, in effect, to require the Coroner to investigate whether he was responsible for Susan Nicholson's death, and to consider a conclusion of accident. The Claimants submit that Trigg's application is procedurally impermissible, and in any event has no merit. Their opposition to Trigg's application is supported in both these respects by the Chief Constable of Sussex Police and the Coroner, although it was made clear on behalf of the latter that she would wish the court to express its views on the merits of the application, even if procedurally impermissible, in order to provide guidance for the future conduct of inquests.
On 14 November 2019 Pushpinder Saini J granted the Claimants permission to bring the judicial review proceedings on all grounds. He also directed that Trigg's application be considered at the substantive hearing.
Narrative of events
Susan Holland
On 16 November 2003 Trigg received a caution for assaulting his then partner, Susan Holland, the previous night. The caution was recorded in the normal way on the Police National Computer.
When members of Sussex Police (hereinafter referred to for brevity as “the police”) were reinvestigating matters in 2016 and 2017 as “Operation Naples”, they compiled a document setting out contemporaneous entries in police records which then survived, including those from CIS, command and control communications and the like. This document, to which we will refer as the Operation Naples log, therefore identifies material as to what the police were told and did or thought at the time of the events it records and which would have been available to the police at any subsequent investigation. It is, of course, not a complete record and its accuracy is capable of being challenged.
Further details of the 15 November 2003 assault on Susan Holland were contained in an Operation Naples log entry which stated that Trigg became angry and used physical violence, punching and kicking Susan Holland, causing a suspected broken nose, a bruised right eye, and a cut to the forehead and right arm.
An Operation Naples log entry for 21 December 2003 records that when Susan Holland went to the flat to retrieve her personal property Trigg became aggressive.
The Operation Naples log records Susan Holland reporting to the police on 12 February 2004 that Trigg (whom she had left but was later to return to) had been making increasingly threatening calls to her over the previous 2 1/2 weeks.
An Operation Naples log entry for 15 October 2005 records that a caller thought to be Susan Holland stated that a male thought to be Trigg was kicking her and was very drunk. She left. The police attended and spoke to Trigg who said the allegation was false. The police attempted to speak to Susan Holland without success.
Pursuant to the police's 2016/2017 investigations, Susan Holland gave a formal s.9 statement to the police. It painted a picture of Trigg as an unstable character who was at times controlling, verbally aggressive and physically violent towards her, including the following assertions in particular:
i) he disliked her talking to people when they were out and on one occasion slapped her in the face for doing so;
ii) the assault on 15 November 2003 involved him “beat[ing] the hell out of” her and knocking her out, resulting in her being hospitalised for three weeks (in Simler J's sentencing remarks after Trigg's convictions she described the hospitalisation as having been for three days);
iii) it was Trigg who called the police while she was unconscious, not her, and when the police arrived he told them “I'm going to kill her, you need to arrest me”;
iv) the police had contacted her in 2006 in the wake of Caroline Devlin's death; it appears from the statement that she was not asked about any history of violence but only whether there had been any asphyxiation or strangulation in their sex life (which she confirmed there had not been).
We consider below whether it can be said that the information in her later statement ought reasonably to have been available to the police when investigating Caroline Devlin's death, or for the purposes of protection of Susan Nicholson. We consider the same question in relation to the other evidence we identify in this section which goes beyond that which can currently be shown to have been available in police records which was contemporaneously available at the material times.
Violence toward Caroline Devlin
According to the draft prosecution Opening Note at the trial, Caroline Devlin had been in a relationship with Trigg since the summer of 2003. She was 35 at the time of her death. There is no evidence of any contemporaneous record of violence by...
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