Chapter 8: The inquests
Issues raised in the conduct of the inquests
As the introduction to this chapter suggests, the documents highlight a number of issues with the conduct of the inquests.
Legal representation of families and associated funding
In the case of the inquests into the ten deaths at the hospital, Blake Lapthorn solicitors were approached by Action Against Medical Accidents to represent clients at the inquests, initially on a pro bono basis with a view to obtaining “exceptional funding” from the Legal Services Commission (LSC) (BLC000657, p1). Harriet Jerram, Counsel, was also instructed to act on a pro bono basis. The Coroner was made aware that both the solicitors and Counsel were acting on a pro bono basis but that an application for exceptional funding was going to be made (BLC000648, p5(28)).
There were clear difficulties in obtaining funding for the representation of the families at the inquests.
Blake Lapthorn solicitors sought the support of the Coroner in their application for funding (PCO000175, p1). Mr Bradley did write to the LSC in support of the application for funding, stating that “from my point of view the more families that are represented the more effective these inquests will be” (PCO000612).
Following Mr Bradley’s letter to the LSC, Blake Lapthorn solicitors sent a further letter to the LSC requesting that funding be provided to allow them to represent the families of four of the deceased (Mr Packman, Mrs Gregory, Mrs Devine and Mr Cunningham) (BLC000449). However, on 3 March 2009, the solicitors felt compelled to write to Mr Bradley again (PCO000161). The LSC had made a recommendation to the Ministry of Justice that funding be granted, but it was not clear whether the Ministry would accept this recommendation. This situation created difficulties for Harriet Jerram, as she was acting pro bono and could not attend the hearings every day. Mr Bradley subsequently wrote to the LSC expressing his “concern” that the matter had not been resolved (PCO000559).
The Panel notes that a decision in respect of funding was not made until 10.00am on 18 March 2009, the day that the inquests began (PCO001032, p1).
The delay in the decision to grant funding to the families’ lawyers caused enormous difficulties for both Blake Lapthorn solicitors and Harriet Jerram. As the decision was made so late in the day, both the solicitors and Counsel were acting pro bono in all their preparations for the inquests. This situation led to Blake Lapthorn being “embarrassed [in their] professional relationship with Counsel” and feeling “compromised in our ability to conduct the case properly for the relatives … to the point of destruction” (PCO001032, p1).
The documents demonstrate the difficulties that Blake Lapthorn solicitors and Harriet Jerram experienced throughout the coronial process while the matter of funding remained unresolved. Both the solicitors and Counsel carried out a considerable amount of work before the inquests began, and even as the inquests were progressing they did not know if they would ever be paid. Their professionalism and dedication ensured that the families had some degree of representation.
Blake Lapthorn solicitors made an application for “exceptional funding” in respect of Mrs Richards’ inquest on 22 April 2009, the day after the jury returned verdicts in respect of the ten inquests (LAA000049). A letter was also sent to the LSC enclosing a briefing document that outlined the police investigation into the death of Mrs Richards (LAA000044). The Coroner wrote to Blake Lapthorn solicitors reiterating his support for Mrs Mackenzie to be granted funding for representation at the inquest, as “I feel that her being legally represented at the hearing will vitally assist both her and myself” (BLC003445).
Following the decision of the CPS in 2010 not to bring any criminal prosecution in the case of Mrs Richards, Mr Horsley drew back from his earlier support for the provision of funding to Mrs Mackenzie. He informed Blake Lapthorn solicitors that “I am not convinced that there are now any exceptional circumstances relating to the forthcoming inquest warranting your client receiving legal aid and would prefer to take a neutral stance in the matter of her obtaining such funding” (PCO002126, p2).
On 3 September 2010, Blake Lapthorn solicitors wrote to the LSC again about their application (LAA000029). Following the first pre-inquest hearing, Blake Lapthorn had written to the Coroner with submissions prepared by Counsel as to why exceptional funding should be granted for Mrs Mackenzie’s representation at the inquest (PCO002099). Mr Horsley decided to support the application (PCO002098). Shortly thereafter ministerial approval was granted to provide funding for the inquest (LAA000022), although this was not confirmed to Blake Lapthorn until 3 October 2010 and even then it was at a significantly lower level than had been claimed by Blake Lapthorn or approved by the Minister (BLC003715).
Whether the inquests should have proceeded on the basis that Article 2 of the Human Rights Act was engaged
It appears to have been widely assumed and accepted in the initial stages that the inquests would proceed on the basis that Article 2 of the Human Rights Act was engaged. At his meeting with the Ministry of Justice and DH in August 2007, Mr Horsley had said that “Article 2 ECHR was clearly engaged … but the size and complexity of the evidence was likely to go beyond the comprehension of a jury” (PCO000128, p3). The agenda for the pre-inquest hearing in August 2008 made no mention of Article 2 (PCO000283, p5). In addition, there appears to have been no discussion at the pre-inquest hearing as to whether or not Article 2 was engaged (PCO000736), and Counsel for the families made written submissions on the basis that it was engaged (BLC000648).
The documents show that this position changed significantly when the solicitor for the Trust contacted Mr Bradley in October 2008 (MRE000930). This was the first of a number of telephone conversations that the solicitor for the Trust had with the Coroner in the absence of the legal representatives of any other properly interested parties. The solicitor for the Trust expressed surprise at Mr Bradley’s view that the Human Rights Act was engaged. All the individuals had died before the Human Rights Act had become law.
The Coroner accepted that, on the basis of the authority that the solicitor for the Trust had referred him to, Article 2 was not engaged. Although the solicitor for the Trust appears to have suggested to the Coroner that this decision be communicated to the other interested parties, “as they may take the view that [Article 2 of the Human Rights Act] should be engaged” (PCO000714, p2), the Coroner appears not to have done this.
On 15 January 2009, the solicitor for the Trust wrote to the Coroner asking if written submissions needed to be made in respect of the Article 2 issue (PCO000602). None were submitted. The first time the question appears to have been brought to the attention of the other interested parties was at the pre-inquest hearing in January 2009, when the solicitor for the Trust asked if Article 2 was engaged and the Coroner said that on the authorities it clearly was not (MRE000981, p4; BLC001839, p3). No other representatives addressed the issue.
The decision on Article 2 was an important issue that should have been notified in advance to the other interested parties so that they could consider making representations.
As an inquest where Article 2 was not engaged, sometimes known as a ‘Jamieson’ inquest, the Coroner was required to look into how the deceased came by their deaths, but not the wider issue of in what circumstances.
In the subsequent inquest into the death of Mrs Richards, Mrs Mackenzie believed that Article 2 could have been engaged. At the first pre-inquest hearing, Mr Horsley stated that “as regards systemic failure this is not an Article 2 inquest” (PCO001778, p13). In an email to Mark Waldron of the Portsmouth News on 5 November 2012, Mrs Mackenzie said that she had been “informed by Mr Horsley that he is not going to consider case under Article 2 of the Human Rights Act as although the Human Rights Act in the pipeline in 1998 it was not in situ until 2000” (FAM103243).
In March 2013, only weeks before the inquest was due to begin, Mr Horsley wrote to Mr White to say:
“… as I have previously made clear, Article 2 of the European Convention on Human Rights is not engaged in respect of Mrs Richards’ death. For this reason, my verdict at the end of the inquest must be limited to expressing my conclusion upon how she died but not upon the circumstances in which she died.” (PCO002055, p2)
When the issue was raised at the pre-inquest hearing in May 2011 (PCO001778) – following the cases of McKerr and Hurst – it was clear that Article 2 “could not” apply as Mrs Richards had died before the Human Rights Act came into force. However, the Panel notes that one week later, the Supreme Court delivered the judgment in the case of McCaughey ([2011] UKSC 20). This stated that, in respect of a death that occurred before the Human Rights Act came into force, if the inquest takes place after the operative date (as Mrs Richards’ inquest clearly did) then Article 2 could be engaged.