R (Diarra Dillon) v Assistant Coroner for Leicestershire [2022] EWHC 3186 (KB) (Admin)

16 December 2022

In this judicial review, the Claimant challenged the decision of the Coroner not to issue a report to prevent future deaths following the inquest into the death of his brother Nile who died whilst a prisoner at HMP Stocken.  Whilst fact specific, the judgment is a reminder of the highly subjective element of the PFD legislative framework, and confirms that coroners can take into account resource constraints when exercising their judgment as to what remedial action is practicable.

The Facts

Nile suffered from asthma and serious allergies.  At 5.32 pm on the afternoon of his death, he pressed his call bell for assistance.  At 5.33 pm a prison officer, who was not first aid trained, attended.  At that time, the prison was in patrol state, meaning that prisoners were locked in their cells and there was only prison officer on duty on each wing.

The officer noticed that Nile was experiencing breathing difficulties and was struggling to find his inhaler.  He did not enter the cell because he thought that three officers needed to be present and was not aware that he had discretion to enter if there was an immediate risk to life.  Hr radioed the Custodial Manager who attended 8 minutes later with other officers.  At 5.40 pm, a “Code Blue” was called by radio signalling a medical emergency and triggering an ambulance to be called.  Further officers responded.  CPR was commenced.  At 6.00 pm, an ambulance arrived at the prison and a second at 6.04 pm.  At 6.15 pm a doctor arrived at the prison and was taken to Nile.  Sadly, he died just under an hour later.  The evidence at the inquest was that no action or inaction by the officers would have affected the outcome though of course that did not preclude a PFD.

On the final day of the inquest, the Coroner heard evidence and submissions about the PFD duty.  She was urged by the counsel for the family to issue a PFD about the lack of first aid training for all officers and the lack of 24-hour healthcare in the prison.  The Coroner declined to do so identifying the key risks as being staff not understanding codes and when to enter cells.  She was satisfied that asking for spot checks to be done to ensure staff understanding on those points would address those risks.

The Grounds

Ground 1 – irrationality

The Claimant argued that whilst new officers are first aid trained, incumbent officers do not receive such training leaving a gap in the provision of emergency healthcare for prisoners.  It was argued that the Coroner’s attempt to bolster her decision with ex post factor reasons demonstrated that she had had regard to irrelevant considerations and failed to have regard to materially relevant considerations.

Ground 2 – errors of approach.

The Claimant argued that comments she made during discussions with counsel at the hearing – including that it was not in her gift to enforce 24 healthcare – demonstrated that she misunderstood the nature of her statutory powers.  It was claimed that she had given weight to resource implications of 24 healthcare which were not for her to assess and that she erroneously concluded that she could not make a report relating to a national rather than local issue.

The Decision

The Court (Simler LJ, Farbey J and HHJ Teague, the Chief Coroner), dismissed both grounds.

In relation to Ground 1, the Court found that the Coroner had heard evidence that due to the turnover of staff, by the time of the inquest most officers would have been trained in first aid and the proportion of untrained officers on patrol state would continue to decease.  On the evidence, the Coroner was entitled to reach her conclusion that if a Code Blue were called promptly, first aid would be available.  She was likewise entitled to take the view that the key issue was not whether every patrol officer had first aid training but whether the prison’s emergency response as a whole was adequate.  She was also entitled to regard the proper understanding of when to call a Code Blue as critical as it is a call for urgent help which should lead to an immediate response from prison staff and urgent contact with the ambulance service.  It was open to her to reach the view that had a Code Blue been called promptly, first aid would have been available in 1-2 minutes.

The Coroner knew that the Prison Service would support spot checks as she heard PFD evidence on the point.  The commitment to take action was a factor the Coroner was entitled to take into account when deciding whether to issue a PFD report under the Chief Coroner’s Guidance.  The post hearing witness statements and other documentation were not capable of casting doubt on the reasons expressed at the haring or suggesting that the decision was flawed on public law grounds.

Ground 2

The Court endorsed the Chief Coroner’s Guidance, paragraph 4, which states that PFD reports should be meaningful and wherever possible designed to have practical effect.  On that basis, it is open to a coroner, when deciding whether action ‘should be taken’ to take into consideration whether there is any realistic prospect including on resource grounds, that a PFD will be acted upon by its recipient.  In any event, resource considerations were not central to the Coroner’s decision.  The Court was in no doubt that the Coroner was not under a duty to issue a PFD about the national provision of healthcare in prisons because there was a paucity of evidence before her about the risk at the national level.

Commentary

Whilst this was the first case that a PFD formed the only subject matter of a judicial review, there have been challenges in a number of previous cases including Parkinson[1], Gorani[2] and Davison[3].  All have failed.

As the Court pointed out, the inclusion in the legislative framework of the ‘opinion’ of the Coroner as to whether action ‘should’ be taken incorporates a subjective element.  More than one reasonable conclusion is available on the facts.

The Court also cited with approval Gorani in which the court emphasised that an inquest is an inquisitorial process and the PFD duty is one imposed on the Coroner.  It is accordingly unsurprising that courts will be reluctant to interfere with their judgments.  Nevertheless, the number of challenges in respect of PFDs renders it important for coroners, if and when they announce their decision, to give well-reasoned judgments.

Jonathan Landau sits as an Assistant Coroner in South London.  He practises from 5 Essex Court and acted for the Coroner.

Click here to read more about this case.


[1] R (Parkinson) v. Kent Senior Coroner [2018] EWHC 1501 (Admin); [2018] 4 WLR 106

[2] Gorani, R (On the Application Of) v HM Assistant Coroner for Inner West London [2022] EWHC

1680 (Admin)

[3] Davison v HM Senior Coroner for Hertfordshire [2022] EWHC 2343 (Admin)


Authors

Jonathan Landau

Call 2004

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