B e f o r e :
THE HONOURABLE MR JUSTICE HOOPER
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THE QUEEN on the application of JEAN MARSHALL
-and –
HER MAJESTY’S CORONER FOR COVENTRY
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
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Mr C.W. Williams (instructed by McGrath & Co. Birmingham, for the Claimant)
Ms P. Kaufmann (instructed by Sarginson & Co. Coventry CV1 2ELfor the Defendant)
Mr J.K. Quirke (instructed by Solicitor to Chief Constable West Midlands Police Birmingham for the Interested Party)
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Judgment
As Approved by the Court
Crown Copyright ©
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MR JUSTICE HOOPER.
This is an application for judicial review of the verdict of a coroner’s jury that the death of Leon Marshall was accidental. The claimant had sought, through her counsel Mr Williams, a verdict of accidental death contributed to by neglect. The Coroner instructed the jury that this was a verdict open to them. The jury declined to bring in such a verdict. It is submitted by Mr Williams that the Coroner misdirected the jury as to the law relating to such a verdict and failed properly to explain to the jury how to relate the law to the facts.
At the conclusion of the hearing I said that the application had failed on what was the first of three issues to be argued and that I would give my reasons later.
On 13 July 1999 Leon Marshall, aged 24, died as a result of swallowing a substantial quantity of crack cocaine. The plastic in which the cocaine was wrapped was found in his stomach. The quantity swallowed, said by the Leon Marshall to be 8 grams, was sufficient to make some 40 retail sales and was worth some £1,000 (page 135).
Leon Marshall had a long history of drug abuse and by 1997 had been diagnosed schizophrenic. He was, in the words of the coroner “violent and at times extremely aggressive.” (page 131)
The facts were in very large measure not in dispute. As the Coroner said in his summing-up, there did not appear to be any conflict in the evidence given that the various accounts of what had happened were corroborated.
On 13 July he was walking along Cox Street in the centre of Coventry. Cox Street is about a mile from the Police Station and about a mile from the hospital. By being in Cox Street, Leon Marshall was a breach of the terms of his parole. A police van pulled up and two police officers approached him. He agreed to being searched. He was asked by a third officer to open his mouth and all three officers had a fleeting view of what appeared to be a small white block under his tongue. That might have been innocent but it might also have been cannabis, cocaine, light heroin or amphetamine or some other drug. At this point he dropped to his knees and started chewing. The police decided to take him to the Police Station in the van. It was at about 15.10 hours that Leon Marshall was detained.
In the van he was asked what was in his mouth to which he at first replied nothing and then said “Chewing gum”. An officer placed his hand on Leon Marshall’s jaw and said “That’s not chewing gum, spit it out”. A struggle started which, in the Coroner’s words, at times seemed quite ferocious. One officer said “Come on, don’t be stupid, you are going to injure yourself.” Eventually rigid handcuffs were applied behind Leon Marshall’s back. Whilst seated with the handcuffs on Leon Marshall was leaning forward with head almost between his knees. During the struggle one of the officers was hurt.
Leon Marshall arrived at the Police Station at 15.23 and was taken directly to the doctor’s room. There he was told “to take it out of his mouth”. The van was searched and an officer found a substance which he thought, indeed rightly thought, was crack cocaine. The officer went back into the doctor’s room and formally arrested Leon Marshall and cautioned him. Leon Marshall replied “Get a doctor, I’ll do any search. I know the score, get my brief”. It was agreed before me that that somewhat enigmatic sentence showed that he knew that a doctor was needed for a search of his mouth and that he was saying that they should call the doctor to enable that to be done.
The officers “realising the urgency of the matter” went to the custody officer and told him what had happened. The custody officer made a call at 15.25 to the Healthcall Forensic Medical Services. The transcript of his telephone call with the operator shows that the officer said, amongst other things:
“We have in custody a person who has swallowed some crack cocaine or we suspect he’s swallowed crack cocaine.”
“We still think he’s got some in his mouth, we’d like a Doctor to - a - make sure that he’s gonna live, and b - see if we can find out what this - what he’s got in his mouth.”
“Could I ask for a thirty minute call out please?”
In the Coroner’s words in his summing-up, the call was made to “to see whether it was safe for Leon to remain in custody.” To put it another way the call was made to see whether he should go to hospital.
Just after the doctor had been called Leon Marshall’s voice became slurred and there was a conversation between him and a police officer. The officer asked what he had swallowed and he replied: “nothing”. The officer said: “forget what you have done I am now concerned with your health, tell me what you have taken for your own health”. Leon Marshall said: “nothing”. The officer told him not to be stupid and asked him again what he had taken. To this question, Leon Marshall replied that he had swallowed about 8 grams of crack. That was the first time that Leon Marshall had admitted that he had taken crack.
According to the Coroner “it was during this short time that Marshall started to decline and suffer the first signs of the serious fits.” As soon as the serious fits occurred, an ambulance was called. By now it was about 15.40. The ambulance arrived at 15.47 and by the time Leon Marshall arrived in hospital, his heart had stopped and he was not breathing. Sadly the resuscitation was not successful and he subsequently died two days later in the intensive care unit.
The experts agreed that the time it would take for cocaine to have the effect it did could be as short as 10 minutes. One of them put it as between 5-10 minutes.
The evidence of the three experts is summarised by Miss Kaufmann in her most helpful skeleton argument. Mr Williams and Mr Quirke agreed with this summary.
“The pathologist Dr Chen, who conducted a post-mortem on 17th July 1999, concluded that Mr Marshall had died from cocaine poisoning: p. 24. All experts were agreed on this. All experts also agreed that as soon as Mr Marshall began to fit death was inevitable. They all agreed also that the time from ingesting crack cocaine to the commencement of fitting would have been very short. Dr Forrest [a forensic toxicologist] estimated a period of between 5 and 10 minutes. Dr Payne-James [a very experienced forensic physician called by the family] stated that it could have been as short as 10 minutes. None of the experts were able to say that had Mr Marshall received immediate medical treatment following the ingestion of crack cocaine, he would more probably than not have survived. But, some of the medical opinion was that there was a chance (and according to Professor Forrest “just a chance”) of saving his life if he [had] been in hospital before the fitting started.”
Dr Payne-James gave emphatic evidence that anyone suspected of having ingested drugs should be taken to hospital immediately.
At the inquest Mr Williams had submitted that the neglect had started when Leon Marshall was in the van. He sensibly abandoned that submission before me. He submitted to me, as he had to the Coroner, that the neglect was the failure of the custody officer at 15.25 to treat the matter as an emergency. He should either have initiated the “callback” procedure by which the doctor would call him back so that the doctor’s advice could be sought or called an ambulance there and then. Relying on the evidence of Dr Payne-James and ordinary common sense this was what he should have done and the failure to do so, so he submitted, constituted a gross failure. Mr Williams criticises the omission by the Coroner to refer to common sense. I see nothing in that criticism.
Having told the jury that the only verdict that they could record was one of accidental death, the Coroner went on to say “however, you may feel that neglect contributed to the cause of death.” He went on to say: “You may remember that Dr Payne-James was very strong about it and you could actually say accidental death contributed to by neglect”. That was a reference to the evidence which I have summarised in paragraph 15 above.
The Coroner continued:
“So lets consider what is involved. Neglect in a verdict is a very serious matter, I think I should point that out to you indeed. So it is not a matter to be taken lightheartedly in any way at all. It should be considered most carefully and it is set about with so many restrictions in law that one has to be very careful.
Neglect means a gross failure to procure basic medical attention for someone who is in a dependent position who is perhaps incarcerated. Well Leon David Marshall was in a dependent position, incarcerated, so neglect in this context means a gross failure to procure basic medical attention. The neglect which you must identify in the Jury Room must have a clear and direct cause or [presumably causal] connection between the conduct you are complaining of and the cause of death. The neglect of course must be by a person or group of people, you can’t say, as somebody was saying in cross-examination, “its the system”, that is not allowed it has got to be a person, you must not identify the person but it has got to be the actions of a person therefore you would need to identify in the Jury Room the person or persons that you found to be committing a gross failure. You also must not use the word neglect to the verdict of accidental death as a disguised form of criticism. I don’t approve of the way this happened I am going to add neglect. You have to stick to - there was a gross failure at such and such a time. So it comes down to this you will have to in your minds find a cause of conduct where somebody turned their back or ignored the deceased’s condition.” (Underlining added)
Mr Williams makes no criticism of this passage except the last sentence, which I have underlined.
When directing the jury about the allegation that the omission to take Leon Marshall to the hospital earlier was neglect (the allegation no longer pursued) the Coroner said:
“I venture to suggest to you that although Dr Jason Payne-James says that he should have been taken to hospital no one looking on would have said “God that’s bad. That is really a gross failure by those policemen”. Would you? That is the question”
As to what happened in the doctor’s room, the Coroner reminded the jury that the officer had told Leon Marshall to take it out of his mouth and continued “Would you actually say to a prisoner “take it out of your mouth” if you thought he had swallowed it”. He reminded the jury that the policemen had been through a struggle. He asked the jury whether at that stage the policemen had “grossly failed to get medical help.”
As to the call for the doctor, he reminded them of the evidence of the custody officer that he did not think that Leon Marshall “was going to suffer a life threatening episode”. The officer had said in evidence:
“At that time, we didn’t know what he had taken and how much he had taken, we suspected that he had taken something, he was denying that he had had anything in his mouth at all, and by his demeanour he appeared to be okay, he was showing no signs of intoxication or increased heart beats or any symptoms that he may have taken something.”
The Coroner continued:
“He called the doctor to see if he was fit to be detained. With hindsight you may say that well that was the wrong decision but hindsight tells you what was going to happen. If it is the wrong decision or not it is not a gross failure because gross failure must not be used to hide someone making a mistake. There has to be a gross failure.”
Mr Williams criticises this passage.
Thereafter then explained to the jury the issue of causation. The Coroner then returned to the issue of neglect by reminding them that it had to be gross failure and not simply making a wrong decision.
The jury returned a verdict of accident, and found under the heading “Time, place and circumstances at or in which injury was sustained”:
“Between 15.10 and 15.42 on 13th July 1999 in either Cox Street or on route to Little Park Street or in the Police Station a large quantity of crack cocaine was swallowed.”
This finding, so it is agreed, is consistent with not knowing when the cocaine was ingested given the presence of the plastic wrapping.
The thrust of the criticism Mr Williams makes about the passage which I have cited in paragraph 23 above is as follows. In the light of such cases as R. v H.M. Coroner for Wiltshire ex parte Clegg [1997] 161 JP 521, R. v H.M. Coroner for Coventry ex parte Chief Constable of Staffordshire Police [2000] 164 JP 665 and R. v H.M. Coroner for Swansea and Gower ex parte Chief Constable of Wales [1999] 164 JP 191, the Coroner ought specifically to have told the jury that neglect may arise from serious underestimation of a dependent person’s condition and set out the steps which the custody officer could have taken, that is, use the callback procedure or summon an ambulance. As to the latter, that must have been very clear to the jury and required no further elaboration. As to the former, it must be right that neglect may arise in these circumstances. However, given the emphatic evidence of Dr Payne-James that any person suspected of having taken drugs should be immediately taken to hospital, given that the custody officer had said in the telephone call that “We have in custody a person who has swallowed some crack cocaine or we suspect he’s swallowed crack cocaine” and given his evidence that he did not think that Leon Marshall “was going to suffer a life threatening episode”, the issue before the jury was sufficiently left to the jury in the way set out in paragraph 23 above. The jury was being directed to decide whether the decision not to use the callback procedure or not to summon an ambulance (which the jury may well have thought was a wrong decision) was “a gross failure”.
Mr Williams also submits that the Coroner did not make it clear in the passage set out in paragraph 23, that a mistake may be a gross failure. In my judgment, the Coroner was making it abundantly clear that a mistake could be but was not necessarily a gross failure. That is accurate.
I turn now to the complaint made about the last sentence which I have already set out and underlined in paragraph 19 above:
“So it comes down to this you will have to in your minds find a cause of conduct where somebody turned their back or ignored the deceased’s condition.”
Mr Williams submits that this passage unduly narrows the definition of neglect in this kind of case by, in effect, requiring a deliberate decision to ignore Leon Marshall’s condition. Miss Kaufmann submits that this passage accurately reflects, on the facts of this case, principle 9 in the leading case of R. v. Humberside Coroner ex parte Jamieson [1995] Q.B. 1, at page 25 B-D (petition for leave to appeal was refused by [1995] 1 WLR 31). She points, in particular, to the need for the medical attention to be “obvious”. Principle 9 reads:
“Neglect in this context means a gross failure to provide adequate nourishment or liquid, or provide or procure basic medical attention or shelter or warmth for someone in a dependent position (because of youth, age, illness or incarceration) who cannot provide it for himself. Failure to provide medical attention for a dependent person whose physical condition is such as to show that he obviously needs it may amount to neglect. So it may be if it is the dependent person's mental condition which obviously calls for medical attention (as it would, for example, if a mental nurse observed that a patient had a propensity to swallow razor blades and failed to report this propensity to a doctor, in a case where the patient had no intention to cause himself injury but did thereafter swallow razor blades with fatal results). In both cases the crucial consideration will be what the dependent person's condition, whether physical or mental, appeared to be.”
It might have been better if the Coroner had directed the jury to ask whether it was obvious, on the facts known to the custody officer, that immediate medical attention was required and if so whether the failure to arrange it was “gross”. In this case the custody officer thought or suspected that Leon Marshall had swallowed some crack cocaine although he did not know how much because of Leon Marshall’s lies and lack of co-operation at this stage. He was not turning his back on or ignoring the condition. His fault, if there was one, was not to use the callback procedure or summon an ambulance. The direction in the passage cited in paragraph 23 above made it clear that the jury had to decide whether the “wrong decision” constituted a gross failure. Any misdirection that there might have been in the use of the words “turned their back or ignored” was not relevant on the facts of this case and would not have affected the outcome.
I did point out to Mr Williams that he had not drawn to the attention of the Coroner at the end of the summing-up the complaints which he now makes. He told me, and I accept, that he was surprised to be asked for any comments and that he had not therefore had time to prepare his thoughts. He tells me, which I also accept, that shortly thereafter he did consider asking the Coroner to deal with these matters but by then the jury were ready to return with a verdict. I should add that neither the defendant or the interested party relied on this omission. I only refer to it because drawing attention to possible mistakes in the summing-up may prevent the need to seek judicial review.
For these reasons this application fails.
