The Queen (on the application of LF) v HM Senior Coroner for Inner South London King's College Hospital Nhs Foundation Trust (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Gross LJ |
| Judgment Date | 29 October 2015 |
| Neutral Citation | [2015] EWHC 2990 (Admin) |
| Docket Number | Case No: CO/1302/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 29 October 2015 |
[2015] EWHC 2990 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Gross and Mr Justice Charles
Case No: CO/1302/2015
Victoria Butler-Cole (instructed by Bindmans LLP) for the Claimant
Jonathan Hough QC (instructed by Legal Services Southwark Council) for the Defendant
Hearing dates: 24 June 2015
INTRODUCTION
This is a tragic case. Maria Ferreira ("Maria") suffered from Down's syndrome. She also had a severe learning disability, limited mobility and required 24 hour care provided (or provided principally with local authority support) by the Claimant, her sister ("the Claimant"). Maria died while in intensive care at King's College Hospital in London on 7 th December, 2013. She was aged 45 at the time of her death. An inquest into Maria's death was opened on 16 th December, 2013.
Plainly an inquest will be held; that is not in dispute. However, by a written decision dated 23 rd January, 2015 ("the Decision"), the Defendant Senior Coroner ("the Coroner") rejected the argument that Maria was "in state detention" at the time of her death, within the meaning of ss. 7(2)(a) and 48(1) and (2) of the Coroners and Justice Act 2009 ("the CJA 2009") and therefore the inquest must be held with a jury. By way of judicial review, the Claimant challenges that conclusion and contends that in the circumstances the Coroner was bound to call a jury. The sole issue for the Court is whether the Claimant's challenge is well-founded.
We were told that the Coroner has participated in these proceedings in order to explain his reasoning and to assist the Court on any matters of specialist law and practice which arise.
King's College NHS Foundation Trust (the Interested Party) ("the hospital") did not file an Acknowledgment of Service and has not participated in the proceedings before us.
THE CORONIAL LEGISLATION
The present coronial law is contained in "the CJA 2009". Before turning to its provisions, it is instructive to start with the predecessor statute, namely, the Coroners Act 1988 ("the 1988 Act"), which provided as follows:
" 8. Duty to hold inquest.
(1) Where a coroner is informed that the body of a person ('the deceased') is lying within his district and there is reasonable cause to suspect that the deceased —
(a) has died a violent or an unnatural death;
(b) has died a sudden death of which the cause is unknown; or
(c) has died in prison or in such a place or in such circumstances as to require an inquest under any other Act,
then…..the coroner shall as soon as practicable hold an inquest into the death of the deceased either with or, subject to subsection (3) below, without a jury.
(3) If it appears to a coroner, either before he proceeds to hold an inquest or in the course of an inquest begun without a jury, that there is reason to suspect —
(a) that the death occurred in prison or in such a place or in such circumstances as to require an inquest under any other Act;
(b) that the death occurred while the deceased was in police custody, or resulted from an injury caused by a police officer in the purported execution of his duty;
…..
he shall proceed to summon a jury….."
In R v Inner North London Coroner, Ex p Linnane [1989] 1 WLR 395, the deceased had begun to serve a term of imprisonment at a police station. He was found unconscious in his cell and was, ultimately, taken to hospital where he died the next day. This Court granted an order of mandamus compelling the coroner to empanel a jury. Taylor LJ (as he then was) held (at p.398) that the phrase "there is reason to suspect" did not "require positive proof or even formulated evidence". Any information giving "reason to suspect" would suffice. As to whether the deceased had been "in police custody" (within s.8(3)(b)) at the time of his death, Taylor LJ said this (at p.400):
" Looking at this matter, I hope, with common sense, I take the view that he was in police custody. He was not in the physical custody in the sense of being physically held by, or arranged to be physically held by, any specific officer, but he was in the legal custody of the police or at any rate (and this is sufficient) there must have been to anyone properly directing themselves on the circumstances then existing, reason to suspect that he was in police custody."
This common sense approach has regard to all the relevant circumstances relating to the concrete situation on the ground.
The CJA 2009 provides, insofar as material, as follows:
" 1 Duty to investigate certain deaths
(1) A senior coroner who is made aware that the body of a deceased person is within that coroner's area must as soon as practicable conduct an investigation into the person's death if subsection (2) applies.
(2) This subsection applies if the coroner has reason to suspect that —
(a) the deceased died a violent or unknown death,
(b) the cause of death is unknown, or
(c) the deceased died while in custody or otherwise in state detention.
4 Discontinuance where cause of death revealed by post-mortem examination
(1) A senior coroner who is responsible for conducting an investigation under this Part into a person's death must discontinue the investigation if —
(a) an examination under section 14 reveals the cause of death before the coroner has begun holding an inquest into the death, and
(b) the coroner thinks that it is not necessary to continue the investigation.
(2) Subsection (1) does not apply if the coroner has reason to suspect that the deceased —
(a) died a violent or unnatural death, or
(b) died while in custody or otherwise in state detention.
6 Duty to hold inquest
A senior coroner who conducts an investigation under this Part into a person's death must (as part of the investigation) hold an inquest into the death…..
7 Whether jury required
(1) An inquest into a death must be held without a jury unless subsection ( 2) or (3) applies.
(2) An inquest into a death must be held with a jury if the senior coroner has reason to suspect —
(a) that the deceased died while in custody or otherwise in state detention, and that either —
(i) the death was a violent or unnatural one, or
(ii) the cause of death is unknown
……
(3) An inquest into a death may be held with a jury if the senior coroner thinks that there is sufficient reason for doing so.
48 Interpretation: general
(1) In this Part, unless the context otherwise requires —
….
'state detention' has the meaning given by subsection (2);
(2) A person is in state detention if he or she is compulsorily detained by a public authority within the meaning of section 6 of the Human Rights Act 1998."
Given the matters to which I shall come, it is next convenient to set out the terms of Art. 5 of the European Convention on Human Rights ("ECHR"):
" Right to liberty and security
1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
….
(e) the lawful detention ….of persons of unsound mind….
4. Everyone who is deprived of his liberty by….detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."
Those with learning disabilities may be "persons of unsound mind" within Art. 5.1(e). Here, there is no or no real dispute that Maria was a person of unsound mind for these purposes.
A number of preliminary observations may be made at this stage. First, the Explanatory Notes to the clause of the Bill which became, s.1 of the CJA 2009 and to which it was common ground we were entitled to refer — the Notes having remained unchanged — were in these terms:
" ….A coroner must also investigate a death, whatever the apparent cause, if it occurred in 'custody or state detention'….such as while the deceased was detained in prison, in police custody or in an immigration detention centre, or held under mental health legislation, irrespective of whether the detention was lawful or unlawful. "
While the Notes clearly contemplate a broadening of the ambit of state detention (as contrasted with the 1988 Act), they make no mention of a patient, whether suffering from a prior mental incapacity or not, receiving treatment in the intensive care unit ("ICU") of, or elsewhere in, a hospital for a physical condition. However, the Notes make it clear that the lawfulness of the detention is not relevant; what matters is whether or not at the time of death the deceased was in state detention.
Secondly, the Coroner's decision not to empanel a jury pursuant to s.7(2)(a)(i) of the CJA 2009 flowed from his conclusion that he did not have reason to suspect that Maria had died an unnatural death while in "state detention", i.e., while "compulsorily detained" by a public authority ( S.48(2), CJA 2009). As was not or not seriously in dispute, the test to be applied to the sole issue before this Court was whether the Coroner's decision was Wednesbury unreasonable or otherwise involved a misdirection in law.
Thirdly, looming over these proceedings is the decision of the Supreme Court in Surrey County Council v P [2014] UKSC 19; [2014] AC 896 (" Cheshire West") and the question as to whether the application of the principles to which the majority subscribed requires or otherwise supports a decision in favour of the Claimant. This...
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