Guernsey Legal Resources

Unlike in England and Wales, there is no separate office of Coroner in Guernsey—the main reason being the limited case load. Under the Magistrate’s Court (Guernsey) Law 1954, the Stipendiary Magistrate was empowered to hold inquests, and the decision whether or not to do so was a responsibility of the Law Officers of the Crown (H.M. Procureur and H.M. Comptroller). However, decisions were only taken after consultation with the Magistrate. Now, in place of the Magistrate there are two Judges of the Magistrate’s Court, who still hold inquests. As a Judge of the Royal Court, who generally enjoys a jurisdiction akin to that of a Circuit Judge in England, I have power ex officio to sit in the Magistrate’s Court, and that still includes the ability to act as Coroner. The other principal differences between Guernsey and England are that there is no jury and no Coroners Rules 1984. In practice, the 1984 Rules are followed in Guernsey, subject to necessary modifications.

    “(1) The proceedings and evidence at an inquest shall be directed solely to ascertaining the following matters, namely—

(a)    who the deceased was;

(b)    how, when and where the deceased came by his death;

(c)    the particulars for the time being required by the Registration Acts to be registered concerning the death.

    (2) Neither the coroner nor the jury shall express any opinion on any other matters.”

Rule 42 provides:

“No verdict shall be framed in such a way as to appear to determine any question of—

(a)    criminal liability on the part of a named person, or

(b)    civil liability.”

3 Also worthy of note is that although interested parties are entitled to be legally represented, “no person shall be allowed to address the coroner or the jury as to the facts” in evidence at an inquest (r.40 of the Coroners Rules 1984). Matters of law may be dealt with. These may include

4 Above all, it has to be emphasized that an inquest is not a trial, nor is it adversarial in nature. It is an enquiry or inquisition.

5 The normal procedure is to list the cause(s) of death, as shown at any post mortem, and the appropriate finding, such as “accidental death,” “natural causes” or “suicide,” etc. This familiar procedure will still remain the norm in the majority of cases. A recent development in England and Wales, connected with the requirements of the European Convention for the Protection of Human Rights and Fundamental Freedoms, art. 2, has introduced the concept of the “narrative verdict.” The leading case on this is R. (Middleton) v. H.M. Coroner (W. Somerset) (2). This decision of the House of Lords is not technically binding on me in Guernsey, but is of the highest persuasive authority, especially as the judges are also members of the Judicial Committee of the Privy Council, our highest appellate court. Guernsey is, of course, also bound by the Convention, and it is applied in Bailiwick courts. Accordingly, I shall follow the Middleton case. What does that entail?

6 There is no need to set it out in great detail, as the concept can be plainly understood. Under art. 2 of the Convention (dealing with the right to life), where a person in the custody of the state (such as a serving prisoner) dies, an investigation is required to ensure the accountability of state agents for the death occurring under their responsibility. In the words of Lord Bingham of Cornhill in the Middleton case ([2004] 2 A.C. 182, at para. 5), “compliance with the substantive obligations referred to above must rank among the highest priorities of a modern democratic state governed by the rule of law. Any violation or potential violation must be treated with great seriousness.”

7 An inquest is such an independent investigation as is required under the Convention. The Middleton case decided that the ordinary form of verdict in an inquest did not meet the obligations enshrined in art. 2. Accordingly, the inquest should determine “how” (r.36(1)(b) of the 1984 Rules) the deceased came to his death more broadly, entailing deciding “by what means and in what circumstances.”

8 The Middleton case also made it clear that there must be no finding of criminal liability on the part of a named person, nor must a verdict appear

9 In cases such as the present, an expanded narrative form of verdict is required in which the court’s factual conclusions are summarized. Such a narrative verdict may record judgmental conclusions of a factual nature. However, it should be noted that the phrase referred to above—“by what means and in what circumstances”—should be given a narrow interpretation, i.e. a “circumstance” that is relevant to the death in question must be one that bears a causal relationship to the death: see e.g. R. (Lewis) v. H.M. Coroner (Mid and North Shrops.) (1).

    (i) H.M. Comptroller (R.J. McMahon, Q.C.), who presented the evidence and assisted the court;

    (ii) Advocate J.A.S. White for the States of Guernsey (i.e. Home Department and HSSD);

    (iii) Advocate G.K. Bell for the primary care prison doctors;

    (iv) Advocate G.S.K. Dawes for the “night owl” doctor; and

    (v) Advocate A.M. Merrien for the family of the deceased.

11 The statements and documents were agreed and submitted to the court in good time, properly presented. The witness statements were all read, with the exception of the expert witness Dr. Morgan, who gave detailed evidence in person. An important part of the documentation was a report from the Prisons and Probation Ombudsmen for England and Wales, dated June 2009. This was produced at the invitation of the Minister for the Home Department and was of considerable assistance. It is to the credit of the Home Department that it called for a full and independent report which has offered detailed conclusions, plus a wide-ranging list of recommendations for the future. I express my gratitude to those responsible for this very thorough and objective investigation.

12 In reaching the required narrative conclusion, I have applied the civil burden of proof, namely, a fact is established if found more probable than not, i.e. on the balance of probabilities.

13 On June 26th, 2008, Mr. Alan Schofield, deceased (hereafter referred to as “D”) was sentenced to six weeks’ imprisonment for a second offence

14 Upon arrival at the Prison, D went through a normal reception health screen, conducted by one of the nursing staff. D explained that he had been experiencing chest pains with exertion, and breathlessness. The nurse found raised blood pressure (176/90) and performed an ECG and lung function test. The ECG revealed some enlargement of the heart, and the lung test mild obstructive airway disease. The nurse rang the duty doctor who was due to visit the next day, but did not record the conversation in D’s medical record. D did not have pain at the time, and he appeared well. The doctor indicated that D would be seen the next day. The initial assessment was very thorough, and a clear history was obtained. The notification to the doctor due to visit the next morning was appropriate.

15 The doctor examined D the next day, June 27th, 2008. The examination, on the preponderance of expert medical evidence, was in accordance with recognized primary care practice. However, the doctor’s management plan should have been made clear in the notes, and the nurse present at the examination should have ensured that the case was noted on the central prison notice board (“the white board”), to identify a potential problem of which discipline officers needed to be made aware. No note of the plan was made in the nurses’ diary or the appointment/handover notes either.

16 On June 30th, 2008, D complained of chest pain to an officer. The officer took D to the nurse on duty, who had been present when D was examined by the doctor. No action was taken, as D’s pain had passed by the time he saw the nurse, but after he returned to the wing she did not assess him, nor was the situation notified to a doctor—which may well have led to further testing. This failure to act was a loss of opportunity to deal with these problems. The officer acted very properly, sensibly making a full note of the occurrence.

17 At 2.00 a.m. on July 3rd, 2008, D pressed his emergency cell alarm button; the preponderance of evidence is that he complained to the responding officer of a headache and then was given two paracetamol tablets, which was good practice. Later that morning, D applied to see the doctor, citing bad chest pain of approximately 40 minutes’ duration. The nurse who dealt with the application was the same person who had been present at the doctor’s examination and had dealt with D on June 30th,

18 The next day, D saw a doctor (a different one from the person seen on June 27th, 2008). The doctor regarded the cause of the chest pain as not being obvious and not typical of heart disease. Higher blood pressure was again found, and a drug which treats hypertension (and angina) was prescribed. A blood test to check for further evidence of heart disease was ordered. The preponderance of expert medical evidence is that the doctor acted in accordance with common and acceptable primary care practice.

19 On July 9th (or possibly 10th), 2008, D made another written request to see a doctor, referring to chest pains for 40 minutes. The officer who was handed the form conscientiously took the trouble to give it personally to a member of the nursing staff, who cannot now be identified. There is no evidence of any action at all being taken, other than the affixing of a date stamp for July 10th, 2008. This is a further significant failure to assess D and refer the matter to a doctor, with the real possibility of hospital admission. Another episode of chest pain had resulted in inaction and a loss of opportunity to respond to D’s symptoms.

20 Around 12.35 a.m. on July 11th, 2008, D once more used his cell emergency button and officers responded. The officers were unaware of D’s history and had to rely on what he imparted to them. His episode of pain subsided and he declined the offer of a doctor or ambulance. The senior officer in charge that night and other officers were under the misapprehension that a single officer was precluded from entering a cell. Instructions had been updated on March 19th, 2008, and were available to staff, but not disseminated by way of a notice to staff, to the effect that in an emergency situation an officer could enter a cell on his own. This had important consequences later on. The senior officer, who acted throughout in good faith and humanely, did not have access to D’s medical history, and there was no information on the “white board”; however, he made himself aware of D’s visit to the nurse on June 30th, 2008 and that D had been seen before with similar symptoms.

21 In due course, the senior officer contacted the “night owl” service at the Princess Elizabeth Hospital and ensured he spoke to the doctor on duty. The senior officer was under the misapprehension that D’s full medical details were on the hospital computer, whereas it was only their own record. The doctor on duty took a thorough record and, in the light of the information available to him, acted appropriately and in accordance with accepted primary care practice, as was indicated by the expert medical evidence. The doctor concluded that it was appropriate for D to remain in the prison but that an ambulance should be called immediately if

22 At about 1.45 a.m., an officer (who had been present at the earlier episode) was carrying out security checks and saw D slumped in his chair, his head held back and gently rocking from side to side. The officer, under the common misapprehension alluded to above, did not enter the cell but radioed for assistance, not using the urgent message procedure. The senior officer was not aware of the nature of the problem from the message and therefore did not take the emergency medical bag with him containing resuscitation equipment. The original officer left the vicinity of D’s cell and carried on with his security procedures instead of remaining available at the scene. By the time the senior officer entered the cell, it is likely that D was already beyond help. Officers then engaged in protracted and praiseworthy resuscitation attempts with the assistance of paramedics who had arrived, only discontinuing when it was manifestly obvious they were unsuccessful. It is not possible to say on the evidence whether resuscitation initiated some minutes earlier when the first officer saw D’s condition might have been more fruitful, but D did appear alive at that stage.

    (a) communication at the prison was ineffective, especially between medical practitioners/nursing staff and discipline officers;

    (b) members of the nursing staff did not deal effectively or at all with D’s episodes of ill health on June 30th, July 3rd and July 10th, 2008—a very significant failing;

    (c) officers were not aware of the new instruction of March 19th, 2008 on entering cells, no general notice to staff having been issued;

    (d) the first officer who saw D’s condition on July 11th, 2008, even with his mistaken understanding of the policy on entering cells alone, neither remained at the scene nor sent out an effective urgent medical emergency message. This was another very significant failing. The rest of the evidence demonstrates that the individual officers referred to acted decently and with good intentions towards D throughout his incarceration.

24 The recommendations set out in the Ombudsmen’s report are, it is understood, being implemented or have been implemented. I shall write to the Home Department Minister, enclosing a copy of my findings and requesting that he ensures that all members of staff fully understand what is involved in this process.

26 I express deep sympathy to Mr. Schofield’s wife and son, relatives and friends. One can never remove human error from being a possibility in a situation, but it is a good idea to have systems in place that seek to minimize it.