R v Wolverhampton Coroner, ex parte McCurbin
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE WOOLF,LORD JUSTICE STOCKER |
| Judgment Date | 12 March 1990 |
| Judgment citation (vLex) | [1990] EWCA Civ J0312-8 |
| Docket Number | 90/0229 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 March 1990 |
The Master of The Rolls
(Lord Donaldson)
Lord Justice Stocker
Lord Justice Woolf
90/0229
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEER'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
MR. IAN MACDONALD (instructed by Messrs. B. M. Birnberg & Co.) appeared for the Appellant.
MR. P. G. McCAHILL (instructed by Messrs. Fowler Langley & Wright, Wolverhampton) appeared for the Respondent (Coroner).
MR. NICHOLAS UNDERHILL (instructed by Messrs. Russell Jones & Walker) appeared for the Respondents (Police Constables Hobday and Thomas).
I will ask Lord Justice Woolf to give the first judgment.
This is an appeal from a decision of the Divisional Court presided over by Lord Justice Glidewell on 29 June 1989, when the Divisional Court refused an application for judicial review seeking to set aside a decision of a coroner sitting with a jury on 24 October and 1 November 1988.
The facts giving rise to the application for judicial review and the coroner's inquest to which the application relates are set out clearly and very succinctly in the judgment of Lord Justice Glidewell in the Divisional Court and I cannot do better than repeat what he had to say.
He points out that it was an inquiry into the death of Clinton Ludlow McCurbin in respect of which the jury had returned a verdict that the deceased died as a result of misadventure. Lord Justice Glidewell indicated that many of the facts were not in dispute and then he went on to say:
"They are, shortly, that on the afternoon of 20th February 1987 the deceased went into the 'Next' shop in Dudley Street, Wolverhampton. He was in possession of a stolen Visa credit card, which he attempted to use to buy goods. The shop staff became suspicious and the police were alerted. Two uniformed police constables, Hobday and Thomas, went to the shop. They asked the deceased to go with them. He made it clear that he had no intention of doing so and made to leave. They attempted to arrest him; a violent struggle ensued and the deceased tried to escape.
In the struggle, the deceased fell or was pushed to the floor of the shop. He finished up lying face down; Hobday was at his head, with an arm round either his head or his neck; Thomas was somewhere around his waist; and a customer, a Mr. Belcher, who took the view that the police were not succeeding in the struggle, joined in to help them, holding McCurbin's feet. I should say that the evidence showed that McCurbin weighed 10 1/2 stone, or perhaps something less and that Hobday weighed 17 stone. Nevertheless it is quite obvious from the evidence that McCurbin was putting up a very violent struggle and there was a prospect of him escaping. The officers and Mr. Belcher held the deceased in that position until other police officers arrived; and then the deceased was handcuffed and carried to the rear of the shop. At that point it was seen that he was not moving. The police officers, and then some ambulance men who arrived, tried mouth-to-mouth resuscitation, but to no avail; a police surgeon who was summoned found him to be dead.
The whole incident, from the first arrival of the two police constables until the ambulance was summoned, lasted no more than 12 minutes.
Until this incident the deceased was a fit young man, 24 years of age. There were two pathologists who gave evidence at the inquest, Dr. Kenneth Scott on behalf of the Home Office and Dr. Ian West on behalf of the family. They expressed the cause of death, in somewhat different words, as being asphyxia as a result of compression of the neck. There were three possible verdicts open to the jury: unlawful killing, misadventure or an open verdict. In the context of this case it is agreed that unlawful killing meant manslaughter; there was no question of murder."
The learned Lord Justice then turned to the facts and he pointed out, first of all, that:
"Both pathologists agreed that the asphyxia probably occurred as a result of an arm being held tightly around the neck of the deceased under his chin."
He indicated that the first and, indeed, in my view, the primary question of fact that was in issue was:
"'Did police constable Hobday have his arm around the deceased's neck? In evidence he denied it. He said that his arm was around the deceased's head. Other witnesses in the shop, and there were a number of civilian witnesses in the shop who gave evidence at the inquest, said that Hobday's arm was around the deceased's neck."
Lord Justice Glidewell then goes on to point out that Dr. West, the pathologist called on behalf of the family, in the course of his evidence, suggested a hypothesis, namely that:
"constable Hobday's arm might have been originally around the deceased's chin, which would not have caused any serious injury, but may have slipped during the course of the struggle so that it then lay around the deceased's neck."
He then finally referred to a third piece of evidence. That was evidence from Mr. Belcher, the person who had been at the deceased's feet. He said that he heard the constable say at one point:
"Hold his neck—I'll break his bloody neck."
Lord Justice Glidewell said with regard to that:
"Did Hobday say that and, if he did, did he mean it?"
Having referred to those facts, I turn to deal with the three submissions which Mr. MacDonald, on behalf of the family, has advanced before this court (they being the same submissions which he advanced in the court below and which were rejected by that court) for saying that the jury's verdict in this case should be set aside.
The first is that the coroner incorrectly directed the jury as to the burden of proof. There is no doubt that, at one stage of his summing up, he clearly directed them in accordance with the criminal standard of proof. In the passage to which I would draw attention the coroner said this:
"As you will naturally be considering a verdict of 'Unlawful Killing' I must now direct you as to the standard of proof which is required by law. It is that you must be satisfied beyond all reasonable doubt that some one person has been guilty of the highest degree of negligence or recklessness known to the law, thereby committing a criminal offence. If you have any doubt in this respect it would be quite wrong to bring in a verdict of 'unlawful Killing'."
Mr. MacDonald submits that the coroner was in error in giving that direction. He submits that, although a verdict of unlawful killing would be one which involves a finding of serious misconduct, the appropriate burden of proof is not the criminal burden of proof but the civil burden of proof, albeit that he accepts that, in applying the civil burden of proof, it would be right for the jury to be reminded that, the more grave the allegation, the more clear must be the proof.
In approaching this question, I have been helped by the skeleton argument which has been put before the court by Mr. McCahill on behalf of the coroner, albeit that the court did not find it necessary to call on Mr. McCahill to address the court. In that skeleton argument Mr. McCahill reminds the court that the law with regard to coroners was codified by the Coroners Act of 1887. Section 4(3) of that Act, in dealing with the functions of a coroner's jury, stated:
"After viewing the body and hearing the evidence the jury shall give their verdict, and certify it by an inquisition in writing, setting forth, so far as such particulars have been proved to them, who the deceased was, and how, when, and where the deceased came by his death, and if he came by his death by murder or manslaughter, the persons, if any, whom the jury find to have been guilty of such murder or manslaughter, or of being accessories before the fact to such murder."
I draw attention to section 4(3) because it clearly sets out the task of the coroner's jury at that time. Section 5(1) went on to provide:
"Where a coroner's inquisition charges a person with the offence of murder or of manslaughter…the coroner shall issue his warrant for arresting or detaining such person…"
The task of the jury, as set out in section 4 of the 1887 Act has since been modified and by section 56(1) of the Criminal Law Act 1977, which provides that:
"At a coroner's inquest touching the death of a person who came by his death by murder, manslaughter or infanticide, the purpose of the proceedings shall not include the finding of any person guilty of the murder, manslaughter or infanticide; and accordingly a coroner's inquisition shall in no case charge a person with any of those offences."
So the historical position has got to be considered in the light of those provisions of the 1977 Act, which clearly modified what was previously the task of a coroner's jury.
Nonetheless, in my view, considerable assistance is provided still by section 4(3) of the Coroners Act 1887 in considering the question of the standard of proof which is applicable. That section made clear the importance of the decision of the coroner's jury and the gravity of the issues which they had to determine which could result in a person being at that time arrested and in due course tried for murder or manslaughter.
In his skeleton argument counsel compares the position of the coroner and his jury with that of the former grand jury in cases of homicide, and he says that the task is very much the same as that of the grand jury. They were required to see whether or not there was a true bill against any named individual.
Having referred to the...
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