2007 (Myatt 2 of 5) R(W) v HM Deputy Coroner for Northamptonshire. High Court

These 5 appeals relate to the death of Gareth Myatt, aged 15, in Rainsford Secure Training Centre in 2004. He was under 5 feet tall, weighed 6 and a half stone.

He died in an approved restraint technique known as the “Seated Double Embrace” (“SDE”) carried out by three G4S employees.

 

Redaction

Some court reports have had victims names redacted and some assault details redacted.

This is a difficult balance – normally I would think that I should not “censor” details but on consultation with various people I have taken the decision to redact. This is mainly to protect victims, their friends and relatives from unnecessary detail and to stop the gratification of those who seek salacious details.

In addition to the obvious “victims redaction” to protect victims details, there may also be “assault redaction” across most of the spectrum of abuse. The assaults are left in the charges, but mainly redacted when repeated with reference to the individual. I have also redacted unnecessary detail of assaults.

Redaction may obscure sometimes the legal reason for the appeal, but should make no large difference to the vital information for researchers that these documents contain. That vital information is mainly names of the perpetrators, past addresses, institutions where assaults occurred, the actual charges the perpetrators faced, and dates – on which newspapers are pathetically inaccurate and this information enables the links between people and places and abuse at various times to be ascertained.

Some transcripts may have been subject to automatic reading software and whilst effort has been made to correct these, the text should not be regarded as definitive. Common mistakes in reprinting here are that quotation marks are sometimes not correct, replaced by odd symbols.

If you think that the balance is not correct or that a particular redaction needs reconsideration, please say.

This appeal is unredacted by cathy fox blog

Index of Newspaper and Journal articles on this blog [1]

Index of Court Appeals on this blog [2]

20o7 (Myatt 1 of 5) R (W) v HM Assistant Deputy Coroner N’Hants and Others. Divisional Court [3]

2007 (Myatt 2 of 5) R(W) v HM Deputy Coroner for Northamptonshire. High Court [4]

2008 Jul 28 (Myatt 3 of 5) R (c) v Secretary of State for Justice Supreme Court [5]

2010 Feb 16 (Myatt 4 of 5) Diana Smith v Youth Justice Board for England and Wales and Another. Court of Appeal [6]

2010 Dec 23  (Myatt 5 of 5) Wilton v The Youth Justice Board High Court [7]

 

2007] EWHC 1649 (Admin)

CO/2484/2007

IN THE HIGH COURT OF JUSTICE


Royal Courts of Justice

Strand

London WC2

Wednesday, 16 May 2007

Lady Justice Hallett

The Queen on the Application of W

v.

Hm Deputy Coroner for Northamptonshire


Computer-Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court)

MR PATRICK O’CONNOR QC AND MR DEXTER DIAS (instructed by Bhatt Murphy) appeared on behalf of the CLAIMANT

MR JAMES EADIE appeared on behalf of the DEFENDANT

MRS WENDY OUTHWAITE (instructed by Treasury Solicitor) appeared on behalf of the YJB

MISS CATHRYN MCGAHEY (instructed by Northamptonshire County Council) appeared on behalf of the Coroner

MR RICHARD FURNISS AND MR SCOTT MATTHEWSON (instructed by Berrymans Lace Mawer) appeared on behalf of Rebound

JUDGMENT

(As Approved by the Court)

1.

LADY JUSTICE HALLETT: The claimant, Mrs Pamela W

, is the mother of the deceased, Gareth Myatt, who at the time of his death was serving a sentence of detention and training at Rainsbrook Secure Training Centre in Northamptonshire. He was just over 15 years old when he died. He was under five foot tall and he weighed only six-and-a-half stone. Shortly after 9.00 in the evening of 19th April 2004, Gareth refused to do as he was told. He became abusive with custody officers and a struggle ensued. He was restrained by three of the officers. They used upon him an approved restraint technique known as the “Seated Double Embrace” (“SDE”). It involves bending the child forward while in a seated position, securing both arms to the child’s side, preventing movement of the legs and securing the child’s head by means of holding the chin and the back of the head and neck. Gareth was held in a Seated Double Embrace for a period of six minutes by the officers. During that time Gareth explained that he could not breath, and he was going to defecate. He vomited. He went limp and despite attempts to save him Gareth died. The cause of death was given as “asphyxia resulting from a combination of inhalation of gastric content and his body position during physical restraint.” The use of SDE was suspended soon after Gareth’s death and has not been reinstated. Mr O’Connor QC, who appeared before us on behalf of the claimant, invited our attention to the ease with which it was abandoned.

2. SDE was part of a system of restraint called Physical Control in Care (“PCC”), a system developed by the Home Office and approved by an assessment team of professionals in 1995 and 1998 for use in Secure Training Centres hereafter known as STCs. Rule 38 of the Secure Training Centre Rules dictates that only restraint techniques approved by the Secretary of State can be used in STCs. Any officer restraining a child must be trained in the technique used. The Secretary of State of the day gave the necessary approval and it had not been rescinded before Gareth’s death. Whereas restraint techniques elsewhere are described as “pain compliant”, the point of specific restraint techniques for children in STCs is that they are not “pain compliant”.

3. Mr O’Connor invited our particular attention to the concluding words of the 1998 assessment team report. They said this:

i. “continued monitoring and development of the technique is important and it was agreed to reconvene the assessment team later in the year to discuss developments.”

4. It is essentially upon those words that the claimant’s case rests. She alleges that there was here a failure by the Youth Justice Board described as the “YJB” before us to monitor and review the use of the SDE as a restraint technique, as advised and, given various expressions of concern this amounted to gross negligence, which was a significant cause of Gareth’s death.

5. A jury has been empanelled by His Honour Richard Pollard sitting as Her Majesty’s Assistant Deputy Coroner for Northamptonshire to enquire into the circumstances of Gareth’s death. At the heart of its enquiry are allegations of gross negligence and unlawful act manslaughter. Evidence has been heard over some 59 days. Approximately thirty-nine witnesses have been called. About thirty-six witnesses have had their statements read. There are 13 files of exhibits. At the conclusion of the evidence submissions were made to the Coroner as to what questions and possible verdicts he should leave to the jury to consider. Having made his decision, he then adjourned the inquest awaiting the results of this appeal. In the time available I shall do my best to do justice to the history of the matter and to the arguments advanced before us by all parties with care and skill. If there are any matters which I get wrong, I am open to correction.

6. The Coroner was satisfied that there was sufficient evidence for a jury to be sure the YJB owed a duty of care to Gareth, that they were in breach of that duty, that the breach caused Gareth’s death and that Mr Perfect, the chief executive of the Youth Justice Board, was its directing mind. He decided he should leave to the jury the possibility of making findings, which, if I may be forgiven the shorthand, would equate to verdicts of unlawful act manslaughter in so far as the actions of one or more of the custody officers are concerned. However, he refused to leave to the jury a verdict of gross negligence manslaughter. This is the only part of his ruling which is the subject of challenge before us by Gareth’s mother. Otherwise she instructed Mr O’Connor to tell us how much she appreciates the sensitive way in way the Coroner has conducted this inquest. Knowing how she must be grieving at the loss of her son and how difficult these proceedings must be for her, it was kind of her to go out of her way to make that statement public.

7. A number of bodies have an interest in the outcome of this litigation apart from Mrs W and the defendant Coroner. STCs are privately run establishments for young people. The Rainsbrook STC is operated by a company called Rebound ECD under contract to the Home Office. Their contract is supervised by the YJB. The YJB is a non-governmental body with statutory responsibility for STCs since April 2000. Mr Perfect was the Chief Executive of the YJB at all relevant times for the purposes of this inquest. His background it seems was in finance rather than in the Criminal Justice System. However, Mr Eadie who appeared for Mr Perfect was anxious to assure us that one of Mr Perfect’s first tasks as Chief Executive was to ensure the appointment of a director responsible for secure facilities who did have the appropriate background, as did members of her staff.

8. By virtue of section 41 of the Crime and Disorder Act 1998 the YJB, in summary, has a duty to monitor the operation and performance of the Youth Justice System and the provision of youth justice, to advise the Secretary of State about the content of any national standards for the youth justice system and to identify and promote good practice. The Board’s aim for STCs in particular is to “accommodate trainees in a safe environment with secure conditions”.

9. In deciding what questions to leave to the jury, His Honour Richard Pollard asked himself the question whether, on the evidence called, a jury could be sure that a reasonably prudent person in the position of the Chief Executive of the Youth Justice Board would have foreseen a serious and obvious risk, not merely of injury, not even of serious injury, but of death. No complaint is now made about the test he applied. It is taken for the most part from the leading case of R v Adomako [1995] 1 AC 171 . The issue before us is whether this conclusion that the jury could not safely say that there was unlawful killing by reason of gross negligence manslaughter was wrong in law.

10. It is common ground that decisions such as R v Her Majesty’s Coroner for Exeter and East Devon ex parte Palmer (unreported) 10th December 1997 have established beyond any doubt that the task the Coroner has to perform at the conclusion of the evidence called in an inquest is akin to the task of a Crown Court judge in a criminal trial faced with a submission of no case to answer. Those principles with which the Coroner is exceedingly familiar, given his substantial experience on the Circuit bench, are set out in the oft-cited case of R v Galbraith [1981] 1 WLR 1039 . I do not intend to rehearse them. I do not need to do so because Mr O’Connor has pinned his colours firmly to one mast. He argues that there was here an abundance of evidence for the jury to consider and upon which they could safely make findings adverse to Mr Perfect and the Youth Justice Board on the issue of gross negligence manslaughter. On that basis he submits that the Coroner made a clear error of law. On the Galbraith test, the issue, he said, should have been left to the jury to consider. He did not argue that this was a borderline case where he rightly conceded there would be scope for the exercise of the Coroner’s discretion in deciding whether or not certain questions should be left to the jury.

11. He was, perhaps, driven into adopting this position by the dicta of Lord Woolf MR in Palmer . Describing the duty of the Coroner to act “as a filter to avoid injustice”, Lord Woolf explained:

“In a difficult case, the Coroner is carrying out an evaluation exercise. He is looking at the evidence before him as a whole and saying to himself, without deciding matters which are the province of the jury, ‘Is this a case where it would be safe for the jury to come to the conclusion that there had been an unlawful killing?’ If he reaches the conclusion that, because the evidence is so inherently weak, vague or inconsistent with other evidence, it would not be safe for a jury to come to the verdict, then he has to withdraw the issue from the jury. In most cases there will only be a single proper decision which can be reached on any objective assessment of the evidence. Therefore one can either say there is no scope for Wednesbury reasonableness or there is scope, but the only possible proper decision which a reasonable Coroner would come to is either to leave the question to the jury or not, as the case may be.

However, as was pointed out by the Lord Chief Justice in Galbraith, in these cases there will always be borderline situations where it is necessary for the Coroner to exercise a discretion. It is only in such a situation that he has any discretion. It follows, therefore, that the test of reasonableness enunciated in Wednesbury has to play in relation to decisions as to whether to leave a particular issue to the jury or not, a role which is extremely limited.”

12. Thus, as Mr Eadie put it, Mr O’Connor has been forced to set himself a high hurdle. If this court came to the conclusion that Mr O’Connor is wrong in his assessment of the weight of the evidence, the scope for our intervention is extremely limited. Even more so, argued all counsel save Mr O’Connor, where the Coroner has heard the evidence over a period of nearly six weeks from so many witnesses and has had access to so many documents. Although transcripts of parts of the evidence have been provided for us, this court does not have transcripts of most of the witnesses’ evidence and we do not have copies of any of the witness statements. This, Mr O’Connor’s opponents argue, is not a case where, given the conflicts between the parties, the facts can be taken as agreed or the court is in a position to draw conclusions from the limited documentation that has been put before us.

13. With that background, Mr O’Connor took us through the evidence that he said amounted to a substantial or compelling case of gross negligence manslaughter. First, he reminded us, in brief, of the findings to which no challenge has been made for present purposes: namely that it would be open to the jury to find that Mr Mark Perfect and the YJB owed a continuing duty to take reasonable steps to set up a system to ensure Gareth was safe in Rainsbrook and to react properly to any developments to ensure his continuing safety. However, Mr O’Connor argued the duty went further. He submitted it included a duty to carry out an expert review of the PCC system and the failure to carry out such a review was grossly negligent. Had the review been carried out, Mr O’Connor asserted with confidence that the SDE technique would not have been used on Gareth and Gareth would not have died. His opponents argue there is a logical non sequitur in that line of argument. They ask the court, rhetorically, where is the evidence that had such a review been carried out in time, the decision would have been taken to abandon the use of SDE? They say the answer is: none. On the contrary, given the state of contemporaneous expert opinion, ie expert opinion without the benefit of hindsight, the probability is the technique would have been approved yet again for use in STCs.

14. It became apparent to me, during our brief review of the system, that the YJB relied, perhaps not surprisingly, quite heavily upon the Prison Service. The prison service are said to be the experts on methods of restraint. They have years of experience, and they have a system of education and training on restraint techniques. They, too, have the responsibility for the care of young people in Young Offender Institutions. They must ensure that their approved methods of restraint meet the required standards. The STC itself at Rainsbrook also had a system of monitoring restraint techniques, and we were shown an extract from the minutes of one of their PCC meetings. We were told that those minutes were sent to the YJB to the offices of their monitor on the spot; at the relevant time this was a Mr Tuck. His job was described as, “to monitor contract compliance”, but this included reporting on when and how physical restraint had been used and whether it had led to any concerns.

15. Two of Mr Tuck’s letters have been brought to our attention by Mr O’Connor: one dated 12th June 2002 in which Mr Tuck reports inter alia the use of physical restraints upon a young girl trainee which resulted in bruising. The trainee said she preferred prone methods of restraint (which as I understand it are not now advocated, certainly for children). She said she preferred prone methods of restraint because the methods used on her had caused difficulties for her in breathing and had caused feelings of sickness. Mr Tuck arranged for this complaint to be raised with the PCC monitoring group at the STC. A second letter from Mr Tuck dated 2nd July 2003 referred to a number of cases in which the head of a trainee had been pushed down too far. The problem here is that children, being more supple than adults, can be pushed into damaging positions. Mr Tuck recommended a revision, therefore, of the PCC Manual, highlighting his concerns. Mr Oscroft, the YJB regional manager for Rainsbrook gave evidence that he forwarded this to senior management at headquarters so that these concerns would, as he put it “go to the heart of the YJB”. He said he received no feedback. Mr O’Connor complains that that indicates no action was taken by headquarters.

16. Between the two letters, prison service trainers had arranged a workshop to discuss PCC in general. It was said that the representatives of the YJB who might have attended declined to do so at the last minute. Mr Tuck the monitor, however, did attend on the last day. Following the workshop the prison service began a revision of their restraints manual.

17. At about this time in early 2003, questions were asked in Parliament about the lack of a cohesive strategy for restraint across the Juvenile Secure Estate. The Minister indicated a review was to be conducted. Mrs Outhwaite on behalf of the Youth Justice Board drew our attention to the fact that the questions and the review were focused on the lack of uniformity in restraint techniques, rather than safety aspects of SDE or PCC.

18. The YJB accepted an offer from the National Children’s Bureau to undertake the review, but declined their offer to include a “quantitative analysis” on the grounds of cost. Mr O’Connor criticised the YJB for their decision to go for what he called the cheaper option. However, he drew our attention to the report which was completed by April 2003 and in which the bureau emphasised that there was “an urgent need for sound evidence to be collected and evaluated on all methods under consideration focusing on medical safety … etc”. Mr Perfect acknowledged in his evidence at the inquest that he was aware of the contents of that report.

19. Further, Mr O’Connor brought to our attention another reference by Mr Tuck to an incident that caused him concern. In one of his regular reports he referred to an incident where a trainee, an hour after he was restrained (we are not told how), developed bloodshot eyes. This, Mr O’Connor argued, was a clear pointer to the fact that approved methods of restraint might lead to asphyxia.

20. At about this time the revised Prison Service manual was in the final stages of preparation. In its final form Annex C to the Manual included a warning as to the increased risk of death in certain restraint positions. Mr O’Connor placed considerable stress on the risk of death referred to, albeit it was not specifically related to SDE. The PCC Manual was similarly revised by July 2003. Those responsible for its preparation borrowed heavily from the Prison Service’s manual. Annex C was attached to the PCC Manual as were warnings about not pushing a young person’s head down too far. Staff were alerted to the need to be vigilant as to signs of distress in a trainee under restraint.

21. Some time that year a Mr Reilly, an Operations Manager at the YJB, became aware, belatedly Mr O’Connor would say, of the possibility that there should be a review of the safety aspects of the restraint techniques deployed. He researched on the internet. As a result, one of the documents found at the YJB by police was a document from New Zealand dated September 2002. We have just one page of that document but it seems to be referring to a somewhat different problem: it refers to difficulties in restraining individuals with “acute behavioural disturbance” when they are being restrained in the prone position or by the use of handcuffs.

22. There was also another document dated July 2003. Under the heading: “Deaths involving children”, the following appeared:

“Given the reported frequency of deaths involving children in the US, the use of systems which may not have been the subject of research with regard to their physiological implications, is questionable and research in this area seems urgently necessary … with the exception of [two studies] there appears to have been no research on the potential negative effects on pulmonary function of a wide range of procedures used commonly in the UK.”

23. Mrs Outhwaite commented that the concerns were in reality about the use of United States systems not United Kingdom systems.

24. I turn to the way in which Mr O’Connor summarised what he says are the following breaches of the YJB’s duty. Mrs Outhwaite reminded the court that when considering these alleged breaches, given the law as it currently stands, to secure a finding of gross negligence manslaughter the evidence must establish not only that Mr Perfect was the directing mind of the organisation, but that in his position (she emphasised the word “his”) he would have foreseen the risk of death. The failings of others within the organisation, if established, cannot be attributed to him for these purposes. Bearing those observations in mind, Mr O’Connor relied upon the following factors:

no-one within the organisation for which Mr Perfect was responsible was given specific responsibility for the safety of children;

no-one within the organisation was given specific responsibility for monitoring the use of PCC and developments in the expert understanding of the dangers of methods of restraint, at all and with particular regard to the safety of children. As it was put in the court below: PCC was “unfortunately not flagged as a priority issue”: and “was not on the YJB’s radar as a priority issue.”

no-one conducted a review of PCC until after Gareth’s death, despite the clear condition of the Assessment Team approval in 1998: no-one reconvened the Assessment Team at all between January 1998, and Gareth’s death in April 2004.

Mr Perfect failed to set up and maintain any system for gathering, coordinating and responding to information about the use of PCC, and any medical and safety problems which were developing a practice.

Mr Perfect was personally responsible for what Mr O’Connor called an organisational vacuum, in consequence of which he failed to respond appropriately or at all to expressions of concern or invitations to consider developments: for example the letters from Mr Tuck, the workshop, questions in Parliament, the National Children’s Bureau report and Annex C of the revised manual.

25. Lastly, Mr O’Connor relied upon an analysis by an expert, a Dr Bleetman, of the Rainsbrook’s records of restraint incidents between April 2003 and March 2004. He had access to medical files on the trainees. He concluded that there was a “striking rate of injury” from PCC holds at Rainsbrook. He said that the majority of untoward medical reports followed the application of the seated double embrace. The potentially lethal effects of SDE, he said, include vomiting, airway compromise, interference with the mechanics of breathing, neck injury, vagal stimulation, reported difficulty in breathing and restriction of the blood flow from the head and neck. Of the 52 reported PCC incidents disclosed to Dr Bleetman he said 34 involved “clear signs of potentially lethal events”. In his opinion this indicates a “wholly unacceptable safety profile for restraint skills employed in a secure training unit”. These conclusions, we were told, were largely adopted and endorsed by the other expert witnesses, including a pathologist, Dr Nat Cary, and Mr Boatman, Dr Bleetman’s business partner. Counsel wished to emphasise that Dr Bleetman had access to confidential material that was not available to Mr Perfect at the time and Dr Bleetman’s comments come with the considerable benefit of hindsight. No doctor advising the parties at the time suggested that a review of PCC was urgent because lives may be lost.

26. Nevertheless, Mr O’Connor submitted that these were all matters which should properly have been left to the jury. He rightly emphasised that the question of whether or not someone has been guilty of gross negligence manslaughter is supremely a question of fact for a jury (as Lord Mackay observed in giving the leading speech in Akomoda ). It was, Mr O’Connor submitted, therefore, for the jury, not the Coroner, to decide if the evidence established to the criminal standard a finding of gross negligence manslaughter.

27. As I listened to Mr O’Connor’s arguments, deployed with his usual skill, it seemed to me that the real target for complaint here is the law of gross negligence manslaughter as it currently stands. Mr O’Connor referred more than once to systemic failures on the part of the YJB, failures at different levels of the hierarchy. I need no persuading that it must be particularly galling for the family of someone who dies in custody if they learn that mistakes have been made at various levels, which may have contributed to the death of their loved one, but that those mistakes cannot be aggregated and attributed to the person at the top of the organisation for these purposes. However, this is not the place to debate the complex arguments, both ways, on whether or not it is right to extend the law of gross negligence manslaughter and whether or not it is right to include within it deaths from custody. Those are decisions for others. I must apply the law as it is, not as Gareth’s family may wish it to be.

28. I must repeat: to secure a finding of gross negligence manslaughter, at present, there must be evidence of gross negligence against the directing mind of the organisation. On the evidence called here, of which we have seen but a sample, it seems to me that I could not possibly disagree with the Coroner’s conclusion. Whatever failings these representing Mrs W may establish (I have to agree with those representing the Coroner and the interested parties: it does not all point one way) those failings cannot all be laid at Mr Perfect’s door. Whatever failings, if any, can be laid at his door, the Coroner, in my view for good reason, decided they do not establish to the required standard that a reasonably prudent man in Mr Perfect’s position (I emphasise “in Mr Perfect’s position”) would have foreseen an obvious risk of death.

29. When the inquest resumes, the Coroner plans to ask the jury questions on the conduct of the YJB. I must be careful, therefore, not to trespass upon their territory. I shall restrict my observations accordingly. Suffice it to say that I found the arguments of Ms McGahey, Mrs Outhwaite and Mr Eadie compelling. As they pointed out forcefully, the thrust of the evidence called from the witnesses was that no-one foresaw that PCC carried any risk of death. Still less did anyone foresee that a failure to carry out a medical review of PCC entailed a risk of death. The restraint experts did not foresee the risk of death. Practitioners did not foresee the risk of death. The monitor, Mr Tuck, did not foresee the risk of death. The independent Social Services Inspectorate did not appear to have expressed concerns about the risk of death. Even medical experts who had taken part in the review panel, for example Dr Susan Bailey, who was aware of previous deaths from positional asphyxia in the prone position and very experienced in the field of physical restraint of children, did not foresee the risk of death from the seated double embrace. The SDE was the most frequently used technique at Rainsbrook, but there had been no deaths or serious injuries during restraint using PCC.

30. Thus, however much I may sympathise with Mrs W on the loss of her child, the question for us is not whether the system has in some way failed Gareth. The question for us is whether the judge was wrong to decide in the way that he did. Just as His Honour Richard Pollard was obliged to remember that questions of fact were for the jury and not for him, so we are obliged to remember, as Mr Eadie politely, but forcefully, reminded us, that our task is to review the decision, not to act as an appellate court from it. The Coroner had a significant advantage over the members of this court. He saw and heard the witnesses give evidence and that was over a very substantial period. He considered the evidence in detail and in a way that we cannot hope to match. He has obviously done so fairly and I note he has reached some conclusions potentially adverse to the YJB and, by implication, Mr Perfect. However, even if the YJB should have done more and should have done it sooner, which to my mind puts the claimant’s case at its highest on the gross negligence manslaughter issue, that does not amount to a compelling case that Mr O’Connor set out to establish.

31. The Coroner may not have said as much, but to my mind this is at best a borderline case of gross negligence manslaughter. As such, the parties agree the scope for our intervention is extremely limited. For my part, despite Mr O’Connor’ valiant efforts, I was not persuaded that His Honour Pollard’s decision was plainly wrong and Wednesbury unreasonable.

32. Mrs W, I hope, will derive some small crumb of comfort from the knowledge that even without findings of gross negligence manslaughter, the enquiry into her son’s death has been extremely thorough, full and fair, despite some possible difficulties with disclosure along the way. I have seen the list of the questions the Coroner intends to leave to the jury. I hope the jury’s responses to those questions and the inquest process itself will provide her in the end with most, if not all, of the answers as to how and why Gareth died.

33. Accordingly, for those reasons, although I can understand why the application was made, I would refuse permission to bring judicial review.

34.

MR JUSTICE DAVID CLARKE: I agree.

35. MR O’CONNOR: My Lady, my Lord, on behalf of Mrs W may we thank the court for the obvious great care that was taken and indeed for the extra time that was made free for us so that we would not feel undue pressure of time.

36. Inevitably, issues of costs arise. Mrs W is on benefits and has the benefit of a legal aid certificate. We therefore would consent to the conventional order, which always escapes me at these moments, which is made for the defendant benefit of the other parties who had to attend, but obviously this would have in fact no financial consequences certainly for her.

37. LADY JUSTICE HALLETT: Certainly, Mr O’Connor, and I take on board the points you made yesterday about whether or not permission was granted. As I have indicated in the judgment, I do totally understand this matter was properly put before this court. I hope that gives you the assistance you require.

38. MR O’CONNOR: That is very kind indeed. My Lady, unless anything else is to be said about costs——

39. THE JUDGE: I do not know if anybody can help on the terms of the usual order. Are you going to be volunteering, Miss McGahey?

40. MISS MCGAHEY: One possibility, my Lady, costs are subject to section 11 of the Access to Justice Act 1999 with the claimant’s liability to be assessed.

41. LADY JUSTICE HALLETT: That sounds right. Are you having confirmation? Thank you.

42. MR O’CONNOR: Sounds very impressive, my Lady, it must be right. We need a formal order for assessment of our costs.

43.LADY JUSTICE HALLETT: You do and you may have it.

44. MR O’CONNOR: I am grateful.

45.LADY JUSTICE HALLETT: Are the parties now content as to how the orders should be drawn up?

46. MR EADIE: My Lady, There is one matter arising from my Lady’s judgment.

47. LADY JUSTICE HALLETT: Of course. I made it plain if I have the chronology wrong please do correct me. Do not feel in any way inhibited.

48. MR O’CONNOR: There was one matter as to the time of day, and my Lady has the perfect excuse that the court fax placed on paper before the court does say 8.00 as being the time of the beginning of the incident. I queried that because the emergency services and health care staff were called at 9.25 and it seemed to me, “Goodness, what on earth is going on for an hour and 25 minutes?” It turns out that the CCTV footage from outside, from which people obviously took objective measure, was an hour out and that has certainly led to everyone saying 8.00, when in fact it was 9.00.

49. MR FURNISS: That is right.

50.LADY JUSTICE HALLETT: Thank you very much.

51. MR EADIE: My Lady, at paragraph 4 or 5 you were describing the case that Mr O’Connor was putting to make a substantial case, you started with “findings to which no challenge is made”.

52.LADY JUSTICE HALLETT: By him? Is that the point?

53. MR EADIE: It was not by him. I would like to add, “at least in the context of these proceedings”, because you then went on to describe that it was open to the jury to find Mr Perfect owed a duty of care, and so on. And the only point I wanted to make was, that although there was of course, for reasons I explained, no challenge by Mr Perfect in these proceedings, he had reserved the right to make that challenge if appropriate. In any event it falls away now, but he had reserved the right to make that challenge in future before the Coroner. So I think an addition of a short bracket after that “finding to which no challenge was made” at least in the context of these proceedings.

54. LADY JUSTICE HALLETT: In fact my original draft, Mr Eadie, it just shows you how you never read things through as you draft them, I had “to which he has made no challenge.”

55. MR FURNISS: My Lady, there are two very small points. I think at the very beginning of your judgment I think you may have referred to 59 days, unless I misheard. I think it was significantly less than that, but I can certainly find out exactly how many days it was and I will certainly have the—I think it might have been more like 29 or something.

56.LADY JUSTICE HALLETT: Someone said it did say 59 yesterday.

57. MR DIAS: I believe it is 30 days.

58.LADY JUSTICE HALLETT: Thirty-nine is the number of witnesses called?

59. MISS MCGAHEY: My Lady, those were approximate numbers. It is the best we can do from the original list of witnesses. I understand that as things moved on one or two witnesses were added, some that might been called were read. It is roughly that.

60.LADY JUSTICE HALLETT: I will add word “approximately” when I perfect the transcript.

61. MISS MCGAHEY: I am grateful, my Lady.

62. MR FURNISS: The second point was again you referred to Dr Bleetman, and that is the name that appears in your judgment. In fact it is Dr Bleetman.

63.LADY JUSTICE HALLETT: Thank you. And he does have a partner called “Boatman”.

64. MR FURNISS: Yes.

65.LADY JUSTICE HALLETT: The only other matter as I read it out, Mrs Outhwaite, is in relation to—do you remember the document that referred to US systems?

66. MRS OUTHWAITE: Yes.

67.LADY JUSTICE HALLETT: As I read it out, the last line,

i. “with the exception of [two studies] there appears to have been no research on the potential negative effects on pulmonary function of a wide range of procedures used commonly in the UK.

68. I have correctly got it ends with “UK” rather than “the US”?

69. MRS OUTHWAITE: I am afraid I honestly cannot remember and I have not brought a copy, but I see Mr O’Connor has it in front of him.

70. MR O’CONNOR: There were two passages cited and it is page 112 to 113. My Lady could you kindly—

71.LADY JUSTICE HALLETT: Under the heading, “Deaths involving children”, you start off:

i. “Given the reported frequency of deaths involving children in the US, the use of systems which may not have been the subject of research with regard to their physiological implications, is questionable and research in this area seems urgently necessary … with the exception of [two studies] there appears to have been no research on the potential negative effects on pulmonary function of a wide range of procedures used commonly in the UK.”

72. The reason why I suddenly stopped to pause was, I thought Miss Outhwaite was

making the point, that there were essentially US systems that were being discussed, and I suddenly wondered whether I had mistyped “UK” for “US”.

73. MR O’CONNOR: Yes. In fact I have the correct quote. He jumps to another column and he does say, “used commonly in the UK”. The quotation is accurate.

74.LADY JUSTICE HALLETT: Thank you. Any more so far as you are concerned?

75. MR O’CONNOR: Thank you very much, my Lady.

76. LADY JUSTICE HALLETT: We are, I hope I have made plain in the judgment, extremely grateful to all counsel for their considerable assistance. Thank you.

20o7 (Myatt 1 of 5) R (W) v HM Assistant Deputy Coroner N’Hants and Others. Divisional Court [3]

2007 (Myatt 2 of 5) R(W) v HM Deputy Coroner for Northamptonshire. High Court [4]

2008 Jul 28 (Myatt 3 of 5) R (c) v Secretary of State for Justice Supreme Court [5]

2010 Feb 16 (Myatt 4 of 5) Diana Smith v Youth Justice Board for England and Wales and Another. Court of Appeal [6]

2010 Dec 23  (Myatt 5 of 5) Wilton v The Youth Justice Board High Court [7]

Please note that victims of abuse may be triggered by reading this information. These links are generally UK based.

  • The Sanctuary for the Abused [A] has advice on how to prevent triggers.
  • National Association for People Abused in Childhood [B] has a freephone helpline and has links to local support groups.
  • One in Four [C]
  • Havoca [D].
  • Useful post on Triggers [E]  from SurvivorsJustice [F] blog.
  • Jim Hoppers pages on Mindfulness [G]  and Meditation [H] may be useful.
  • Hwaairfan blog An Indigenous Australian Approach to Healing Trauma  [J]
  • Survivors UK for victims and survivors of male rape or the sexual abuse of men [K]
  • Voicing CSA group [L] helps arrange survivors meetings in your area
  • A Prescription for me blog Various emotional support links [M]
  • ShatterBoys -“Male Survivors Of Childhood Sexual Abuse Inspiring change, Through Shared Experience Whilst Building Connections…Together We Can Heal” [N]

Links

[1] Index of Newspaper and Journal articles on this blog https://cathyfox.wordpress.com/2015/05/23/newspaper-stories-index-timeline/

[2] Index of Court Appeals EWCA on this blog https://cathyfox.wordpress.com/2015/05/08/a-timeline-of-court-and-ewca-documentation-on-cathy-fox-blog/

[3] 2017 Feb 19 Cathy Fox Blog 2007 (Myatt 1 of 5) R (W) v HM Assistant Deputy Coroner N’Hants and Others. Divisional Court https://cathyfox.wordpress.com/2017/02/19/2007-myatt-1-of-5-r-w-v-hm-assistant-deputy-coroner-nhants-and-others-divisional-court/

[4] 2017 Feb 19 Cathy Fox blog 2007 (Myatt 2 of 5) R(W) v HM Deputy Coroner for Northamptonshire. High Court https://cathyfox.wordpress.com/2017/02/19/2007-myatt-2-of-5-rw-v-hm-deputy-coroner-for-northamptonshire-high-court/

[5] 2017 Feb 19 Cathy Fox blog 2008 (Myatt 3 of 5) R (c) v Secretary of State for Justice 28 Jul 2008 Supreme Court https://cathyfox.wordpress.com/2017/02/19/2008-myatt-3-of-5-r-c-v-secretary-of-state-for-justice-28-jul-2008-supreme-court/

[6] 2017 Feb 19 Cathy Fox blog 2010 (Myatt 4 of 5) Diana Smith v Youth Justice Board for England and Wales and Another. 16 Feb 2010 Court of Appeal https://cathyfox.wordpress.com/2017/02/19/2010-myatt-4-of-5-diana-smith-v-youth-justice-board-for-england-and-wales-and-another-16-feb-2010-court-of-appeal/

[7] 2017 Feb 19 Cathy Fox blog 2010 (Myatt 5 of 5) Wilton v The Youth Justice Board 23 Dec 2010 High Court https://cathyfox.wordpress.com/2017/02/19/2010-myatt-5-of-5-wilton-v-the-youth-justice-board-23-dec-2010-high-court/

[A] Sanctuary for the Abused http://abusesanctuary.blogspot.co.uk/2006/07/for-survivors-coping-with-triggers-if.html

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About cathy fox blog on Child Abuse

the truth will out, the truth will shout, the truth will set us free...
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4 Responses to 2007 (Myatt 2 of 5) R(W) v HM Deputy Coroner for Northamptonshire. High Court

  1. Pingback: An Index and Timeline of Court & Court of Appeal Documents on Cathy Fox Blog | cathy fox blog on child abuse

  2. Pingback: 2007 (Myatt 1 of 5) R (W) v HM Assistant Deputy Coroner N’Hants and Others. Divisional Court | cathy fox blog on child abuse

  3. Pingback: 2008 (Myatt 3 of 5) R (c) v Secretary of State for Justice 28 Jul 2008 Supreme Court | cathy fox blog on child abuse

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