Hamilton-Jackson, R (on the application of) v HM Assistant Coroner for Mid Kent and Medway

A coroner must clearly distinguish between the legal meaning of a policy and the factual question whether it was followed. The meaning of policy language is a question of law, to be interpreted objectively in its context. Where mandatory self-harm policies require an ACCT plan to be opened after an incident of self-harm, the initial obligation is triggered by the incident; assessment of the level of risk and appropriate protective measures follows. A jury direction which leaves the meaning or interaction of policies to the jury may constitute material misdirection. In an Article 2 inquest, unsafe conclusions may be quashed without ordering a fresh inquest where the investigation and judicial relief together discharge the procedural obligation.

The claimant, whose son died by self-harm while detained at HMP Elmley, challenged parts of the jury questionnaire appended to the Record of Inquest. The jury had concluded that his ACCT plan had reasonably been closed, and answered that staff should not have opened an ACCT after a deliberate act of self-harm on 8 January 2013 or after his change of status on 9 January.

The challenge alleged unclear and misleading directions concerning the national and local ACCT policies, inaccurate treatment of evidence, unlawful opinion or recommendation, and breach of the procedural obligation under Article 2. The claimant sought to quash the questionnaire answers but did not seek a fresh inquest. The central issue was whether the Assistant Coroner had properly directed the jury on the meaning and operation of the ACCT policies.

1. Ground 1 allowed. The Assistant Coroner failed to distinguish between interpreting the national and local ACCT policies and deciding whether they had been complied with on the facts. He also left the jury to decide whether there was a policy “dichotomy”, without directing them on the policies’ meaning. A coroner must give clear directions to a jury, although the summing-up is not subjected to close forensic analysis. The meaning of policy language is a question of law, not fact. The words must be interpreted objectively in their proper context, but not as if they were statutory or contractual provisions: [2012] UKSC 13 at [18], [19] and [21].
2. Both ACCT policies were mandatory and were triggered by the deceased’s deliberate act of self-harm on 8 January. The incident was not made irrelevant by its superficial nature. The initial opening of an ACCT plan was distinct from the subsequent assessment of risk, observations and protective measures. The failure to direct the jury on this point, and to remind them that Nurse Cortez had accepted that the threshold was met, was a material misdirection. The policies should be followed in the absence of cogent reasons to the contrary: [2005] UKHL 58; [2006] 2 AC 148.
3. The handwritten comment concerning the need to reflect amendments to the national policy in the local policy was not unlawful. It was a comment on the circumstances of the death rather than a prohibited opinion or recommendation. The statutory restriction in section 5(3) of the Coroners and Justice Act 2009 did not invalidate it.
4. The answer to question 2 was unsafe. It was quashed, together with question 2 of the questionnaire. The answers to questions 1 and 3 and the handwritten comment were not quashed. No fresh inquest was required. The Record of Inquest, the judicial review and the court’s judgment together discharged the Article 2 procedural obligation.

Permission to bring the judicial review claim was granted on the papers by Holman J on 24 November 2015. The Administrative Court allowed the challenge in relation to question 2 of the jury questionnaire and quashed that question and answer. No fresh inquest was ordered.