Tyrrell v HM Senior Coroner County Durham and Darlington
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang,Lord Justice Burnett |
| Judgment Date | 26 July 2016 |
| Neutral Citation | [2016] EWHC 1892 (Admin) |
| Docket Number | Case No: CO/3068/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 26 July 2016 |
and
[2016] EWHC 1892 (Admin)
Lord Justice Burnett
and
Mrs Justice Lang
Case No: CO/3068/2015
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Matthew Stanbury (instructed by Lester Morrill Solicitors) for the Claimant
Peter Skelton QC (instructed by Durham County Council) for the Defendant
Louis Browne (instructed by the Government Legal Department) for the Interested Parties
Hearing dates: 12 th July 2016
Approved Judgment
Introduction
The issue in these judicial review proceedings concerns the question of what article 2 of the European Convention on Human Rights ("ECHR") requires of a coroner when a serving prisoner dies of natural causes. Michael Tyrrell, the claimant's brother, died of pneumonia secondary to cancer on 30 May 2013. Although he was in hospital at the time, he remained in custody and under guard. An investigation followed by the Office of the Prison and Probation Ombudsman ("PPO") which concluded that the death was a natural one. It looked at the quality of care which had been afforded to the deceased. The coroner, with the benefit of that report, obtained evidence from a number of treating doctors. The claimant provided independent medical evidence reviewing the quality of her brother's care, and in particular whether his cancer should have been diagnosed earlier. The evidence pointed irresistibly to the conclusion that the death was from natural causes. In those circumstances the coroner determined on 9 March 2015 that Article 2 ECHR did not impose upon him any obligation of further investigation. He expressed that by saying that "article 2 is not engaged" and proceeded to hold an inquest at which the medical evidence was taken through his coroner's officer, the only witness called. The coroner recorded a conclusion of death by natural causes. The coroner's reference to article 2 in this context was to the procedural obligation recognised by the Strasbourg Court to arise in some cases of death, rather than the substantive obligations which article 2 imposes on state parties to the ECHR.
The latest annual report of the PPO indicates that about 250 deaths occur in the prisons in England and Wales each year of which something over two thirds are from natural causes. A very small number result from violence, or are otherwise unnatural, and between a quarter and a third are from suicide.
The claimant submits that Strasbourg and domestic authority required the coroner to conduct what is described as a "Middleton inquest", a reference to the decision of the House of Lords in R (Middleton) v West Somerset Coroner [2004] 2AC 182. The claimant's argument is that the fact of the death having occurred in custody is sufficient to trigger an obligation to conduct an article 2 compliant inquest as described in the Middleton case. On her behalf, Mr Stanbury accepts that there is nothing in the factual circumstances of this case which suggests that there was any systemic failing on the part of the prison authorities to provide appropriate medical care to the deceased. He accepts that there is no support for the suggestion that the care provided by the National Health Service was sub-standard or that there was negligence on the part of treating doctors. He accepts that if the deceased had not been in custody but had received precisely the same care and treatment from the NHS as a patient at liberty, then there would have been no obligation under article 2 for the coroner even to hold an inquest. Indeed, Mr Stanbury was unable to identify any practical difference between the investigation in fact conducted by the coroner into this sad death, including the short inquest, and one which would have followed had the coroner decided that "article 2 was engaged" in the sense that the procedural obligation was triggered by the death.
A Middleton inquest, in the language of the coronial jurisdiction, is contrasted with a "Jamieson inquest" which is one conducted without the additional structure of the article 2 procedural obligation. It is named after the case of R v HM Coroner for North Humbersideex parte Jamieson [1995] QB 1. Neither Middleton nor Jamieson was concerned with the scope of inquiry of an inquest but with the outcome, in the Jamieson case the availability of a conclusion including "neglect" and in the Middelton case whether article 2 ECHR required an expansion of the conclusions with which the inquest should culminate. The House of Lords concluded that the only change required to the coronial regime was the inquest "ought ordinarily to culminate in an expression, however brief, of the jury's conclusion on the disputed factual issues at the heart of the case." (para 20). This would be achieved by interpreting the words "how the deceased came by his death", which was and is the relevant statutory formulation, to mean not simply "by what means" but "by what means and in what circumstances." (para 34).
The facts
Given the high level of legal abstraction at which the claimant's arguments have been advanced I shall trace the underlying facts relatively briefly. Mr Tyrrell, who was 65 years old when he died, had been sentenced to 26 years' imprisonment in 2002 for drugs importation. He moved to HMP Frankland in June 2005. In May 2012 he complained of a sore throat and was diagnosed with a dental infection which resulted in the removal of some teeth in June. Pain persisted. A specialist ear nose and throat investigation followed which found nothing abnormal. A biopsy revealed sialadenitis; but problems persisted. A maxillofacial specialist was next involved and he was referred for an MRI scan in February 2013. None of those who had seen Mr Tyrrell had suspected that he might be suffering from cancer. Before the scan was carried out Mr Tyrrell's condition deteriorated and so he was admitted to hospital. On 4 March 2013 an exploration under anaesthetic was performed which revealed a malignant tumour under the tongue. A CT scan followed which confirmed that the mass was four centimetres across. The lymph nodes were involved, as was confirmed on post-mortem.
Chemotherapy and radiotherapy were undertaken but Mr Tyrrell developed bilateral pneumonia which was the immediate cause of death.
Mr Tyrrell died in the University Hospital of North Durham. His death was notified to the coroner, Andrew Tweddle. An inquest was opened and adjourned. The death was also notified to the PPO. The PPO is a non-statutory body which operates pursuant to Memoranda of Understanding with the Ministry of Justice, under whose auspices it operates. It is functionally independent of the Ministry and of the Prison Service. One of its functions is to investigate any death of a person in custody. It did so in this case and produced a report in January 2014. The PPO examined the dealings of Mr Tyrrell with all clinicians who visited the prison, the prison medical and dental staff as well as reviewing the treatment he had received externally. The PPO was concerned with the way in which Mr Tyrrell was managed as a prisoner during his illness, including questions of whether he might have been released on temporary licence in the final stage of his illness and the conditions of security maintained at the hospital. Mr Tyrrell's family were engaged with the PPO investigation. A clinical review was commissioned by the PPO which examined the complete history of Mr Tyrrell's medical dealings since his imprisonment. The reviewers concluded that the diagnosis of the terminal illness was made appropriately and that the post-diagnosis treatment was conducted to an appropriate standard. The result was that the PPO was satisfied that the clinical care provided to Mr Tyrrell was equivalent to that which he would have obtained in the community. It looked at a large number of detailed questions posed by his family concerning both the medical attention he received and documents and information management.
The report, including the clinical review, was provided to the coroner. The post mortem examination report established the cause of death, which was uncontroversial. The coroner did not rest upon the PPO investigation without more. He commissioned medical evidence with a view to exploring further the question whether the diagnosis of Mr Tyrrell's cancer had been timely. He held two pre-inquest reviews. In May 2014 the claimant instructed Professor Christopher Nutting, Clinical Director and Head of Neck and Lung Cancer Units at the Royal Marsden Hospital, to conduct a complete review of the treatment received by Mr Tyrrell. He reported on 5 August 2014. He described the tumour as relatively rare and notoriously difficult to diagnose. Although the original throat pain was likely to have been caused by the early development of a tumour Professor Nutting was not critical of the various medical staff who dealt with Mr Tyrrell. It was not until mid-February 2013 that the symptoms were such that a diagnosis became feasible, although it was not suspected by the clinicians. Professor Nutting's report provides no foundation for any suggestion of negligence on the part of the many medical practitioners who examined or treated Mr Tyrrell in the year before his death, still less of any systemic failings in the medical care provided by or through the prison medical services or the NHS. The position adopted by Mr Tyrrell's family was that they wished to explore further whether there was negligence in the late diagnosis of the tumour.
It was in all these circumstances that the coroner decided that no further investigations were called for and that article 2 ECHR did not dictate any further action on his part.
The...
To continue reading
Request your trial
-
R (on the application of Maguire) v HM Senior Coroner for Blackpool and Fylde
... ... In R (Tyrell) v HM Coroner for County Durham and Darlington [2016] Inquest LR 235 the Divisional Court ... ...
-
R (on the application of Maguire) v HM Senior Coroner for Blackpool & Fylde and another
...is no arguable breach of article 2 such as to require an expanded form of verdict. This occurred, for example, in Tyrrell v HM Senior Coroner County Durham and Darlington [2016] EWHC 1892 (Admin); 153 BMLR 208 (“ Tyrrell”), discussed 33 In the Coroner's assessment, that is what happened i......
-
R (Wandsworth Borough Council) v Senior Coroner for Inner West London
...responsibility….” 63. Lord Burnett CJ referred to Tyrrell v HM Senior Coroner for County Durham and Darlington[2016] Inquest LR 235, (2016) 153 BMLR 208, in which he had given the judgment of the Divisional Court, which was a case concerning the investigative duty, and to which I will retur......
-
Upper Tribunal (Immigration and asylum chamber), 2021-04-14, [2021] UKUT 114 (IAC) (R (on the application of Lawal) v Secretary of State for the Home Department (Death in detention, SoS’s duties))
...as established by McCann v United Kingdom 21 EHRR 97. …” In Tyrrell v HM Senior Coroner County Durham and Darlington and Another [2016] EWHC 1892 (Admin), the Divisional Court observed that the Strasbourg jurisprudence provides that, whenever a person dies in custody, an explanation of the ......