R (Maxine Hamilton-Jackson) v HM Assistant Coroner for Mid Kent and Medway [2016] EWHC 1796 (Admin), 19.7.16
The absence of opening or closing speeches at inquests means that the need for clarity when summing up is all the more important. The jury must know clearly what they need to find as facts in order to justify any conclusion and, as the Chief Coroner has put it:
“Coroners, however well intentioned, should do their best in directing a jury to avoid using language which is not in everyday use, language which may not be clearly understood”.
So what are an inquest jury to make of being told they need to decide whether or not there was a failure of a prison system or in the operation of a prison system, by “polarising the dichotomy between: is it mandatory to open an ACCT when a particular event occurs or is it mandatory to open an ACCT when the relevant official considers there is a risk of suicide or self-harm?”
Quashing the jury’s response to just one part of the jury questionnaire in this case, the Divisional Court has held that not only was there a misdirection, because the jury could not be clear what they were being asked to decide, but also re-iterated how the meaning of a policy is not a matter of fact to be determined by the jury, but is a question of law to be determined by the Coroner.
The background
Sean Jackson died in prison after he suspended himself by a ligature made from a sheet that was tied to his cell light fitting in his cell. His ACCT (self-harm prevention) plan in prison had been ‘closed’ ten days earlier – two months after the last recorded incident of self-harm by him.
Two key issues that were explored at his inquest were whether his ACCT plan should have been re-opened either following an act of self-harm two days before his death, or on the day before his death, when he changed his plea to guilty and was remanded for sentence, so that his status within the prison changed. That the national and local ACCT policies had been differently worded, and how the policies were understood by prison staff, had also been a focus of some inquiry.
The claimant, Mr Jackson’s mother, was content with the overall outcome of the inquest and so she did not seek a fresh inquest. However in the light of the coroner’s jury direction she sought an order quashing that part of the jury questionnaire which had included a question about the re-opening of the ACCT.
The jury question itself was clear and simple:
“Should the inpatient department staff have opened an ACCT on 8 January 2013 after Sean drew attention to his deliberate act of self-harm?”
The direction provided by the Assistant Coroner to help the jury to understand how to address that question was rather less simple:
“The questionnaire is posed in this way so that you may, if you think it right, reflect in your announcements whether there was in effect a failure of system. Not was there an operational failure, I stress, was there a failure of system, by polarising the dichotomy between: is it mandatory to open an ACCT when a particular event occurs or is it mandatory to open an ACCT when the relevant official considers there is a risk of suicide or self-harm?”
The Court held that the Assistant Coroner had failed to make a distinction in his summing up between the meaning of the national and local ACCT policies and the way they were operated in the circumstances of the deceased’s case. He did not direct the jury as to the meaning of the policies and in substance left it to them to decide whether there was a “dichotomy” between the national and local policies, and whether they were inconsistent.
Whilst a coroner’s summing up should not be subjected to a close forensic analysis, the authorities show that in directing a lay jury the coroner must be clear. It was his duty to explain to them, a policy’s meaning insofar as was relevant, and the effect of the differences, if any between policies. He had not done so with sufficient clarity.
The court therefore held that the narrative conclusion which included the (negative) answer to the specific question was unsafe. To that extent the procedural obligations under Article 2 ECHR had not been discharged by the inquest.
It is of note that the court agreed that the misdirection in relation to a single question within the questionnaire did not require the whole questionnaire to be quashed, but only that question and its answer.
Some thoughts…
It is becoming a welcome trend in the administrative court that circumscribed remedies such as this are being given where there have been procedural errors during inquests. In this case a new inquest was not requested, it was unnecessary and would serve no useful purpose. Sufficient relief was provided by the quashing the question and the jury’s answer. The Court explicitly noted how the Art 2 obligations were now satisfied by the Divisional Court proceedings themselves, together with the provision of the court’s judgments which explained the reasons for quashing the single question. Art 2 procedural duties can be satisfied without a new inquest.
A similar approach was taken by the Court earlier this year in Tainton where the Divisional Court determined that no fresh inquest was required where the inquest had not wholly satisfied the Art 2 obligations, again the Divisional Court’s finding in that case was considered to be sufficient to satisfy Art 2.
Coroners facing Judicial Review challenges that may have some merit, but who do not wish to concede that a whole fresh inquest is required, should now always seriously consider whether there is room for making more limited concessions and agreeing to a circumscribed finding by the Admin Court. Judicial review of inquests should not be seen as an “all or nothing” challenge, and compromising cases on a limited basis quickly and cheaply (where appropriate) will benefit all. This is particularly so where the claimant herself only seeks a limited and proportionate remedy.