Abstract
CORONIAL LAW
R (on the application of Claire Humberstone) (Claimant) v Legal Services Commission (Defendant) & HM Coroner for South Yorkshire (West) (Interested Party) (2010)
D, a 10-year old boy, suffered from severe asthma, which he was supposed to control using a steroid inhaler twice daily as chronic therapy. So that in the case of an acute attack, D had a bronchodilating inhaler which he could use.
However, D was not capable of complying with the above medical directions without supervision, which he did not always receive, and as such his asthma was not as well controlled as treating clinicians would have liked.
One evening D suffered an asthma attack and an ambulance was called. Paramedics attended to D before taking him to hospital where he sadly died later that night. D's mother (H) was later accused of causing D's death in that she had failed to properly supervise the administration of his asthma medication. She was arrested on suspicion of manslaughter by gross negligence as a result.
An inquest was to be held into D's death and H applied to the Legal Services Commission for funding for legal representation at the inquest. However, representation at an inquest is normally excluded from the scope of Legal Services Commission funding and, as such, exceptional funding has to be granted by the Lord Chancellor under s6(8)(b) of the Access to Justice Act 1999. The Legal Services Commission, however, refused to recommend H's application to the Lord Chancellor for exceptional funding and, as such, H's application for funding was refused.
The coroner (C) expressed concern that H was without legal representation, particularly as one of the central issues to be decided was whether she herself might have contributed to or caused her son's death. C stated that without legal representation, H might struggle to understand some of the more technical matters in issue. Furthermore, C was also concerned by the ‘inequality of arms’ that H would be subject to if she did not have legal representation, given that the other key parties were to be represented, many of them at public expense. C stated that there could be no ‘effective investigation’ into D's death while H remained unrepresented and as such stated that the decision of the Legal Services Commission not to fund H breached her right under article 2 of the European Convention on Human Rights 1950. The position of the Legal Services Commission was that article 2 was not engaged as the duty to investigate a death under article 2 only arose where there was ‘at least the possibility that some agent of the state had breached the primary duty to protect life under article 2’.
H sought judicial review of the Legal Services Commission's decision not to fund representation for her. It was held that in the circumstances, article 2 was engaged and that in any event a duty to investigate could arise under article.2 ‘even where there was no possibility that any state agent breached the primary duty under that article to protect individuals from threats to life when in their care’. Furthermore, it was held that in considering whether representation was required by a party to an inquest, the opinion of the C was relevant and could only be disregarded by the Legal Services Commission ‘if it gave cogent reasons for doing so’.
In this case it was held that the Legal Services Commission had failed to ‘have proper regard to the nature and seriousness of the allegations made against H’ and that as such their decision not to fund representation had been flawed. Accordingly H's application for judicial review was granted and the decision of the Legal Services Commission was quashed.
Glennys Jones (Applicant) v HM Coroner for the Southern District of Greater London (Respondent) & Deshminder Virdi (Interested Party) (2010)
D had been found dead in his bed after being prescribed fentanyl, a powerful synthetic opiate analgesic, by his GP. D had also been prescribed fentanyl three times during the previous week by an out-of-hours doctors' service.
Toxicology reports revealed that D had taken 15–20 times the average fatal dose of fentanyl and an inquest was called. At the inquest, the coroner delivered an open verdict as it was unclear how D had come to possess such quantities of the substance.
Following the verdict, J, the mother of D, sought an order quashing the first inquest and ordering that a second inquest be opened by a different coroner. J had undertaken a number of investigations of her own accord, which had resulted in recommendations being made regarding the repeat prescription of fentanyl. J also discovered that a warning had been issued by the manufacturers of fentanyl in the USA following a number of deaths there in connection with the drug. She discovered that there had been a considerable number of deaths in the UK as well as in the USA that were thought to be the result of unintended overdoses of fentanyl.
J claimed that the initial inquest had failed to investigate the circumstances surrounding D's death fully. In particular J felt that the inquest had failed in its primary function in that it had failed to establish why D was in possession of sufficient quantities of fentanyl to take 15–20 times the average fatal dose. J also argued that in light of the new evidence she had uncovered through her own investigations, it was in the wider public interest and in the interests of justice that another inquest be held.
It was held that the coroner who had heard the initial inquest had taken too narrow a view when considering the matter of how D came to die in that he was satisfied with the conclusion that D had died as a result of a fentanyl overdose. He had failed to fully investigate the matter of why D was in possession of such quantities of fentanyl; content to assume that D had obtained an additional supply from an outside source.
It was held that the correct approach would have been to have investigated whether the quantity of the substance prescribed could have been fatal and, if so, how and why D came to obtain repeat prescriptions for the drug.
Furthermore, it was held that the additional information that had come to light in respect of other unintentional overdoses of fentanyl meant that there was a wider public interest in holding a further full inquiry. It was also important to ensure that the medical profession were alive to the dangers involved in the repeat prescription of fentanyl.
Accordingly, it was held to be in the interests of justice that a further inquest be held; the original inquest was quashed and a further inquest was ordered.
CRIMINAL LAW
Crown Prosecution Service v Patrick Anderton Jolly (2010)
J had been pulled over by the police and breathalysed as he was suspected of driving under the influence of alcohol. As the lowest reading contained less than 50 µg of alcohol per 100 mL of breath, under the Road Traffic Act 1988 s8(2), J was entitled to claim that the sample should be replaced with a specimen of urine or blood (which may have been more accurate). Accordingly, J was read a statement to this effect in line with the national protocol by the arresting officer.
J stated that he did not understand what he was being told and asked the arresting officer to clarify the position. The officer merely repeated the statement but did not offer J any advice as to what it meant.
At trial, J was acquitted of driving while over the limit as the magistrates concluded that J had been in a ‘state of panic and anxiety and had not been able to fully absorb what the officer had said’. They stated that, as such, J had been unable to make an informed decision, particularly as the arresting officer had failed to explain the implications of the options being offered to him.
The Crown Prosecution Service appealed against the decision to acquit J, submitting that there was no obligation to offer a suspect further explanation or advice in relation to their right under s8(2) of the Road Traffic Act 1988; their obligation extended merely to stating that the right existed.
On appeal it was held that while there was ‘no reason in principle why an officer should not tell a driver that a blood or urine test was more reliable’, equally, there was no obligation on an officer to provide a suspect with any further information than that contained in the national procedure statement. Accordingly, the officer did not have to ensure that the suspect understood the content of the statement either and as such the appeal was allowed.
HUMAN RIGHTS
S v Poland (2010)
S, who was HIVpositive, was involved in a road traffic accident while in Poland but had since left Poland for the UK. Subsequently, Polish officials sought to extradite S back to Poland under a European arrest warrant in connection with charges of careless or dangerous driving, and an order for his extradition was made.
Polish authorities indicated that upon his return to Poland, S could expect to be placed under temporary arrest (which would remain in place for at least 14 days) before being bailed, upon which he would have to find accommodation at his own expense. They also indicated that the usual sentence in respect of a charge of careless or dangerous driving was a suspended sentence. The Polish authorities also made assurances that S's medical requirements would be attended to and stated that, in any case, they were aware that S had two months worth of anti-HIV medication in his possession.
S appealed against the decision to extradite him. He stated that, as an HIV sufferer in receipt of antiretroviral treatment, to extradite him would constitute a disproportionate breach of his rights under article 8 of the European Convention on Human Rights 1950.
On appeal the court acknowledged that S's offence was at the lower end of the scale of extraditable offences, and likely to result in a suspended sentence. However, they concluded that only an ‘exceptionally serious’ interference with an individual's article 8 rights would render extradition inappropriate. In this case, particularly in light of the Polish authority's assurances, the interference with S's article 8 rights were not deemed sufficiently serious and accordingly S's appeal was dismissed.
R (on the application of Owen George Stephenson) v Secretary of State for The Home Department (2010)
S, a Jamaican national, had entered the UK whereupon he had married a British citizen and been granted indefinite leave to remain as a spouse. S was subsequently convicted of a number of serious offences including possession of a class A drug with intent to supply, and possession of an offensive weapon. An order for S's deportation was later made.
In between times, S's wife gave birth to the couple's first child, following which S sought to revoke the order for his deportation. S submitted that his deportation would breach his family's rights under article 8 of the European Convention on Human Rights 1950.
The Secretary of State refused S's application to revoke his deportation. He stated that if S's family were to remain in the UK following his deportation, this would not prohibit them from maintaining family relations with S and as such the interference with their article 8 rights were not disproportionate and did not breach the Convention. Furthermore, the Secretary of State certified S's article 8 claim as clearly unfounded under s94(2) of the National Immigration and Asylum Act 2002. This provision states that a person may not bring an appeal against an immigration decision where the Secretary of State certifies that the claim is clearly unfounded.
S claimed that the Secretary of State was ‘at least arguably wrong’ in his contention that the article 8 rights of himself and his family would not be breached as a result of his deportation.
It was held that S's claim ‘could not be characterized as clearly unfounded’, because if a case was clearly unfounded it could not possibly have a realistic prospect of success. In this case, it was important to note that each member of the family had their own distinct article 8 rights, which had to be considered in conjunction with the article 8 rights of the family as a unit, when deciding whether S's deportation would be disproportionate. It followed therefore that ‘the family situation that had developed was of itself something that rendered the article 8 claim arguable’. While the court recognized the risk that the claim could ultimately fail, it was not without a realistic prospect of success and as such was not clearly unfounded. Accordingly S's application was granted.