FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 31914/03
by Brenda ROWLEY
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 22 February 2005 as a Chamber composed of:
MrJ. Casadevall, President,
SirNicolas Bratza,
MrG. Bonello,
MrR. Maruste,
MrK. Traja,
MrL. Garlicki,
MrJ. Borrego Borrego, judges,
and Mr M. O'Boyle, Section Registrar,
Having regard to the above application lodged on 3 October 2003,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mrs Brenda Rowley, is a United Kingdom national who was born in 1952 and lives in Manchester. She was represented before the Court by Ms K. Ashton, a solicitor practising in Birmingham.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant's son, Malcolm Rowley, was born in 1967 with severe learning and physical disabilities (microcephaly with spastic quadripleglia.) His disabilities included deafness and an inability to speak. He also suffered from epilepsy. He was unable to care for himself in any way whatsoever. He required 24 hour care and was totally dependent on his carers for all his needs.
In June 1990 he moved to 96 New Lane, Salford, a residential care home owned by Salford City Council (“the Council”). On 18 July 1998 he died, having drowned in his bath. The circumstances surrounding his death are as follows. On the morning of his death he was given a bath. This involved placing him in a bath using a hoist so that he was lying horizontally. He was unable to sit in a bath without assistance. A headrest was available to place under his head, but it was not used on this occasion. The carer, S.P., after washing him put a certain amount of a foaming soap product into the bath and turned on the jacuzzi mechanism. The depth of the bath water was at least five inches. Malcolm was then left unattended to soak in the bath. After five minutes S.P. found bubbles to have formed and she put a bar of soap in the bath to get rid of them. She then left Malcolm unattended again. It is not clear how long she left him for but, based on her own account it was at least five minutes. When she returned Malcolm was found to have drowned. The police went to the care home on the same day and interviewed the two carers responsible for Malcolm, S.P. and B.M. They claimed that they had not been given any instructions that Malcolm should never be left alone when in the bath.
A preliminary inquest hearing was held by the Coroner into Malcolm's death on 21 July 1998 and was adjourned pending the outcome of the police inquiries.
The criminal investigation
On 30 July 1998, the applicant talked on the telephone to the police officer conducting the investigation. He told her that what had happened was "just an accident".
After the family's insistence, the police officer met with the applicant. He refused to watch a video showing the extent of Malcolm's disabilities. He stated that he was familiar with Malcolm because the care home had been used by the police as an observation post for a period of time.
By 25 August 1998, the police investigation was completed with the conclusion that there was insufficient evidence to justify a prosecution and that the incident had been a tragic accident.
On 12 October 1998, the applicant met with the police officer who was conducting the enquiry. He told her that no charges were being brought against the two carers because there was no evidence of any criminal intent.
On 9 May 1999, the applicant wrote to the police requesting a written explanation as to why no criminal charges were being brought, giving her view that such gross negligence warranted a charge of involuntary manslaughter.
On 24 May 1999, the Chief Constable informed the applicant that he would arrange for the case to be examined by the Detective Superintendent in charge of the Crime Investigations Branch.
On 15 June 1999, the police informed her that the case had been thoroughly investigated but that they were seeking advice from the Director of Public Prosecutions ("DPP").
On 29 June 1999, a casework lawyer at the Crown Prosecution Service (“CPS”) wrote to the police, noting that three of the four ingredients of manslaughter were satisfied (1) the social services owed Malcolm a duty of care (2) failing to supervise someone with his disabilities was a breach of that duty and (3) that breach caused his death. However, it was unclear whether the fourth criterion, that the failure to supervise could be categorised as "gross negligence", was satisfied. He requested the police to make a number of further enquiries.
On 14 July 1999, the two carers were interviewed again, this time under police caution. Both again stated that Malcolm had strong neck muscles and that they had been given no guidelines or instructions to the effect that he should not be left alone. The police also obtained a statement from the Home Office pathologist dealing with the cause of death and Malcolm's general practitioner, and re-interviewed the senior manager of the home, who stated that she was not aware of the bathing practices adopted by the staff at the home and that no guidance or training had been given to them in relation to the level of supervision during bathing. The police sent their final report, with the various statements, to the CPS on 19 July 1999.
The applicant also met with a CPS officer, supplied the video which had not been forwarded by the police and explained her concerns about the investigation.
On 22 September 1999, the senior prosecutor at the CPS reviewed the evidence and concluded that as Malcolm could control his neck it had not been grossly negligent to leave him unattended in the bath. While the lack of risk assessment structure in the home was "clearly negligent", she nonetheless concluded that there was insufficient evidence of gross negligence and causation to provide a realistic prospect of conviction of the Council for corporate manslaughter. This conclusion was communicated to the police on 12 October 1999. They informed the applicant at a meeting on 19 October 1999.
On 11 January 2000, following the inquest, the CPS decided that there was nothing which seemed to justify further review of Malcolm's death. The applicant asked them to reconsider their decision. Having consulted Junior Treasury Counsel, the CPS wrote in a detailed letter dated 4 July 2000 that they maintained their first decision.
In December 2001, after having obtained access to Malcolm's medical records, the applicant again applied to the CPS to have the matter reopened. After a re-review of the file, the CPS, on 6 February 2002, sent the applicant a seven page letter explaining that there was no case for manslaughter against any of the parties involved in caring for the victim. As S.P. had not been aware that she was placing Malcolm at risk as he had always kept his head out of the water before, others had also left him unattended and there had been no identification of risk or established policy by her managers of managing risk, it was considered that a properly directed jury would be unlikely to find that her conduct was so bad as to be grossly negligent and therefore a crime. While factors in favour of a finding of gross negligence against the Council were identified, such as the failure to make a proper risk assessment and the failure properly to train and supervise, the CPS considered that the Council was entitled to expect that carers would use common sense in adopting safe systems of work and that as some training was provided and staff were appropriately experienced, the case could not be made out that the conduct of the Council was so bad as to be grossly negligent and therefore a crime.
On 10 May 2002, the applicant applied for judicial review of the decision not to prosecute the carer S.P. or the Council for gross negligence manslaughter.
In September 2002, the applicant finally obtained a copy of the social services file on Malcolm.
Following a hearing at which the applicant was represented, the Administrative Court dismissed her application on 4 April 2003. The court noted that the CPS's re-review of the case was an impressive document of 46 pages and that the applicant's counsel did not disagree that it constituted a full and accurate survey of the relevant material and set out the applicable law. While the applicant's counsel did complain about the way in which the CPS had applied the law to the facts, the court found that the CPS had been correct in its approach and the evidential tests had been applied correctly in all instances. The court considered that the decision to prosecute was one which rested chiefly within the discretion of the CPS and in all circumstances there was nothing to show that the decision had been the wrong one. It also concluded that there was no breach of Article 2 in the CPS failing to require the police to undertake further enquiries, observing that over the years since 1998 the tragic death had been carefully investigated time and again.
The Council's investigations
On 12 August 1998, the applicant made a formal complaint to the Council's Complaint Officer about the practices adopted by staff in bathing Malcolm. The Council appointed Mr John Kealey as an Independent Person, with terms of reference to investigate the circumstances of the death. In his report dated 1 September 1998, he concluded that there was no negligence as such, but that there had been a failure to recognise the degree of risk incurred by allowing Malcolm to be in the bath, in particular with the jacuzzi switched on. He made recommendations, inter alia, to make sure that patients such as Malcolm have a staff member present throughout bathing.
The Council's Senior Safety Officer also carried out an investigation between 20 and 29 July 1998. His report also noted the lack of a written code of practice, guidelines or effective communication on bathing residents and made recommendations to prevent a recurrence.
No disciplinary measures were taken against any staff member.
The Inquest
On 10 August 1998, the Coroner's Liaison Officer took a statement from the applicant. She also gave him a copy of the video of Malcolm.
Despite a series of requests, she was refused access to Malcolm's social services file and also told that she had no right to advance disclosure of the evidence to be submitted at the inquest. She was informed that she would not see a copy of the Health and Safety Executive Report until after the inquest.
On 28 October 1999, the applicant met with the Coroner and attempted to give him letters from former carers who had been familiar with Malcolm, her intention being that these letters should be put in evidence. The Coroner would only accept those letters that had been signed. He refused her proposal to call as witnesses the medical team who had tried to resuscitate Malcolm and who had commented to the family that he must have been underwater for longer than five minutes due to the amount of water in his lungs. He stated that this was a matter for the pathologist.
On 18 November 1999, the Coroner informed the applicant's solicitors of seven statements that were to be read out, enclosing copies of the statements and listing the witnesses that he intended to call. The statements did not include those by the two carers.
The inquest took place on 13 and 14 December 1999. The applicant was present and represented by counsel and solicitor, acting pro bono. The applicant was called as a witness as were the two carers, the pathologist, other Council officers, the Independent Investigator and the Senior Safety Officer. No relatives or former carers were called as requested by the applicant. The pathologist in his report had given the cause of death as wet drowning, stating that his pre-existing mental and physical handicap contributed significantly to his death by preventing him from raising his head and/or body above the water once his mouth and nose had become immersed in it. The jury gave the verdict of accidental death with neglect a contributing factor.
The investigation by the Health and Safety Executive (HSE)
On 24 July 1998, the applicant was informed that the HSE were also to carry out an investigation into the circumstances of Malcolm's death. Statements were taken from carers and social service managers, an inspection made of the location and a reconstruction of events carried out.
The HSE report was completed on 28 October 1998.
On 10 March 2000, the applicant was informed that the HSE intended to prosecute the Council in the magistrates' court for breach of section 3(1) of the Health and Safety at Work Act 1974 (failure so far as reasonably practicable to ensure Malcolm's safety) and for breach of Regulation 3 (1) of the Reporting of Injuries, Disease and Dangerous Occurrences Regulations ("RIDDOR") 1995 (failure to report Malcolm's death by the quickest possible means). The applicant considered that these offences did not match the seriousness of the case and requested that they transfer the case to the Crown Court. The HSE said that it would be for the magistrates to decide whether they required to send the case to a court with heavier sentencing powers.
On 27 April 2000, in the magistrates' court, the Council pleaded guilty and the court referred the case for sentencing to the Crown Court.
On 6 July 2000, the Crown Court fined the Council GBP 115,000 in total. Although the applicant requested all the evidence, statements and reports from this trial she was only given certain papers.
Civil proceedings
On 5 June 2000, the applicant's solicitors sent a letter before claim to Salford City Council threatening to issue proceedings for damages.
Following protracted correspondence, the Council made an offer to settle the case for GBP 1,000 plus costs. Her solicitors informed the applicant that this sum was within the range of damages which were likely to be recoverable in such an action and explained that there was a risk of having to pay the Council's costs if they refused an offer to settle which was more than eventually recovered at trial.
After further negotiation, the applicant accepted a settlement offer of GBP 1,750 plus costs and a formal letter of apology.
On 2 August 2001, the Council's Chief Executive wrote a letter of apology to the applicant, regretting that a failure in standards of care and safety had resulted in her son's tragic death.
COMPLAINTS
1.The applicant complains that the death of her son whilst in the care of the State, the inadequate legal protections against careless killing by corporations and the inadequacies of the various investigations into her son's death violated Article 2 of the Convention
2.The applicant complains under Article 13 of the Convention that the United Kingdom has failed to provide her with an effective remedy, to provide a mechanism for establishing State liability and to provide compensation.
THE LAW
1. The applicant complains of the death of her son due to lack of protection, the lack of prosecution for corporate manslaughter and the allegedly inadequate investigations into the incident, invoking Article 2 of the Convention which provides as relevant in its first sentence:
“ Everyone's right to life shall be protected by law. ...”
A. Alleged breach of the positive obligation to protect life
In the present case, the applicant argues that her son was a disabled person in the care of the Council, that the Council knew or ought to have known that he was at risk of drowning if left unsupervised in the bath and had inter alia failed to have in place a system for ensuring that those caring for him were aware of all relevant information, failed to carry out a risk assessment plan of Malcolm, in particular in relation to bathing and failed to adopt the policy, as it subsequently did, of no unsupervised bathing of profoundly disabled people.
The Court recalls, however, that an individual can no longer claim to be a victim of a violation of the Convention when the national authorities have acknowledged, either expressly or in substance, the breach of the Convention and afforded redress as appropriate (see, amongst many authorities, Eckle v. Germany, judgment of 15 July 1982, Series A no. 51, § 66). In the present case there have been numerous findings that the applicant's son was subject to inadequate care while under the responsibility of the Council. The internal complaints procedure by the Independent Investigator found defects in procedures as did the Council's Senior Safety Officer. Furthermore, the Council pleaded guilty to an offence under the Health and Safety at Work Act 1974 for failure so far as reasonably practicable to ensure Malcolm's safety and was fined a substantial amount.
The Court would also note that the applicant settled her civil claims for damages against the Council on the basis of damages and a formal apology to the effect that their failure in standards in care and safety had resulted in the death of her son. While the applicant was apparently advised to accept the settlement in light of the risks of costs liability, it goes without saying that where a case is settled the parties are influenced, inevitably, by a number of considerations which affect the amount of compensation, including the saving of time and further expense and the uncertainty of the final result. Furthermore, requirements to pay costs are a normal feature of civil proceedings and do not dispense applicants from the obligation to exhaust available domestic remedies.
Having regard to the considerations above and the fact that the applicant settled her claims in civil proceedings accepting compensation and an apology, the Court finds that she may no longer, in these circumstances, claim to be a victim of a violation of the Convention, within the meaning of Article 34 of the Convention, as regards the alleged responsibility of the State for the death of her son.
Insofar as the applicant complains that there should have in addition been a prosecution for corporate manslaughter and that the official investigations into the death were inadequate, these aspects are examined below.
B. Alleged inadequate protection against careless killing by corporations
The applicant submits that Article 2 requires the United Kingdom to set up a criminal law mechanism which provides vulnerable disabled people with legal protection against the careless endangering of life. She argues that while corporations can be prosecuted for gross negligence manslaughter, domestic law as it stands means that there is no realistic chance of proving guilt in respect of a substantial corporation, where responsibility for daily operation is likely to be highly devolved and proving proximate fault on the part of a director at a high level will normally be impossible. Referring to domestic and international materials (e.g. the Law Commission's recommendation to change the law and the Committee of Ministers' Recommendation No. R(88)18), she complains that it was this inadequate state of the law which was relied on by the CPS in their decision not to bring a prosecution.
The Court recalls that the first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see L.C.B. v. the United Kingdom, judgment of 9 June 1998, Reports of Judgments and Decisions 1998-III, p. 1403, § 36). The State's obligation in this respect includes a primary duty to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions (e.g. Osman v. the United Kingdom, judgment of 28 October 1998, Reports 1998‑VIII, § 115). In the case of deaths of patients in care, whether in the public or private sector, this entails an effective independent judicial system by which the cause of death can be determined and those responsible made accountable (see, among other authorities, Calvelli and Ciglio v. Italy [GC], no. 32967/96, ECHR 2002‑I, § 49; Erikson v. Italy (dec.), no. 37900/97, 26 October 1999; and Powell v. the United Kingdom (dec.), no. 45305/99, ECHR 2000-V).
While the Court has said on a number of occasions that the effective judicial system required by Article 2 may, and in certain circumstances, must, include recourse to the criminal law, if the infringement of the right to life or to personal integrity is not caused intentionally, the positive obligation imposed by Article 2 to set up an effective judicial system does not necessarily require the provision of a criminal law remedy in every case. In the sphere of medical negligence, the obligation may for instance also be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any liability of the doctors concerned to be established and any appropriate civil redress, such as an order for damages and for the publication of the decision, to be obtained, together with the additional possibility of disciplinary measures (see Calvelli and Ciglio, cited above, § 51; Mastromatteo v. Italy [GC], no. 37703/97, § 90, ECHR 2002-VIII; Vo v. France [GC], no. 53924/00, § 90, ECHR 2004 ‑...).
As such, therefore, there is no absolute right to have recourse to the criminal law under Article 2. The CPS gave consideration to the possibility of prosecution, either of an individual carer or of the Council, and concluded that there was insufficient evidence of conduct so deficient as to be characterised as gross negligence and to attract criminal responsibility as corporate manslaughter. Their assessment was upheld by the Administrative Court in judicial review proceedings. While the applicant argues that the definition of corporate manslaughter in domestic law renders it almost impossible to apply it to large organisations, the Court is not persuaded that this alleged defect enabled the local authority to hide behind an inadequate safety system with impunity. They were convicted and fined a substantial sum for health and safety offences and it appears that following the numerous criticisms and recommendations they have reformed their procedures to avoid a recurrence of any similar tragedy. Noting in conclusion the lack of sufficient evidence of criminal responsibility on the part of any particular individual, the Court finds no indication that there has been a failure by the United Kingdom to provide protection by law for the applicant's son's life in this case.
It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
C. Alleged breach of the procedural obligation
The Court's case-law establishes that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State's general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see, mutatis mutandis, McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, § 161, and Kaya v. Turkey, judgment of 19 February 1998, Reports 1998-I, § 86). The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. This investigation should be independent, accessible to the victim's family, carried out with reasonable promptness and expedition, and effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances or otherwise unlawful, and should afford a sufficient element of public scrutiny of the investigation or its results (see McKerr v. the United Kingdom, no. 28883/95, §§ 111-115, ECHR 2001‑III).
In the present case, the applicant complains inter alia that there was no proper investigation as the Independent Investigator's report was unduly dependent on information from the Council and the personnel involved and was not capable of establishing the cause of death or identifying those responsible; that the police failed properly to investigate the possibility of corporate manslaughter and prejudged the case as an accident from the beginning, failing to question witnesses properly, obtain satisfactory evidence as to the cause of death or take statements from the applicant and her family; that the CPS failed to follow up inquiries or take steps to identify any person within the Council who might be guilty of gross negligence and that the DPP should have required the police to undertake further enquiries before taking the decision not to prosecute; that the inquest did not provide the applicant with advance disclosure of important evidence, was limited in scope, failed to call witnesses proposed by the applicant and limited cross-examination by her and that legal aid was not available; and that the HSE investigation did not involve the applicant in any way and gave no reasons as to why the matter was not referred back to the police or why involuntary manslaughter charges were not applicable or why individual managers were not prosecuted for health and safety offences.
The Court recalls that the form and nature of the investigation required by Article 2 will vary depending on the circumstances of the case, the essential principle being that the key facts should be brought out for public scrutiny and that the procedures should provide for effective accountability. Nor can it be said that there should be one unified procedure satisfying all requirements: the aims of fact-finding, criminal investigation and prosecution may be carried out by or shared between several authorities, as long as the various procedures provide for the necessary safeguards in an accessible and effective manner. In this case, it is clear that evidence was taken from the key witnesses involved at the home and medical evidence obtained as to the cause of death by a pathologist. While the police did not take any statements from the applicant and her family, they were not in fact witnesses of the event; and to the extent that they could offer information about Malcolm's disabilities, it would appear that the applicant made her views known to numerous authorities, a statement was taken from her by the Coroner's officer and she gave evidence at the Inquest. The Court notes that the applicant had meetings with the police and officers of the CPS, as well as conducting correspondence with various authorities. It is satisfied that she was able to put forward her legitimate interests and was kept informed of decisions to an extent compatible with Article 2. The procedural obligation does not require the authorities to consult the victim's family on or inform them of every occurrence or detail. While legal aid could not be granted for representation at the inquest at the relevant time, the applicant was nonetheless represented on a pro bono basis and it appears that she had access to legal advice at various stages. The Court is not persuaded that she was denied, by lack of legal aid or advice, effective access to the available procedures.
The Court further considers that the inquest provided a public and independent forum for exposing the basic facts surrounding the incident. The verdict, which indicated the jury's view that there was an element of neglect, cannot be said to have prevented the identification or punishment of any person responsible. The CPS reconsidered the possibility of prosecuting any individual or the local authority on several occasions and gave the applicant detailed reasons for its decision not to prosecute, which were upheld on judicial review by the Administrative Court. The Court notes that when the HSE took the decision to prosecute for health and safety regulation offences the applicant was duly informed; it does not consider that the circumstances were such that she should have been involved in any more detailed manner in the exercise of the HSE's prosecutorial functions.
While it may be true that there were details of the incident which were not clearly determined or that there were aspects of the various investigations which could be criticised, the Court is satisfied that the basic facts surrounding the death of the applicant's son were subject to public scrutiny and that proper and effective steps were taken to identify and render accountable any persons or body that had infringed the criminal law. In this case, where the death was not caused intentionally, the possibility for the victim's family to take civil proceedings with a view to establishing civil liability and further elucidating events to their satisfaction must also be taken into account.
It follows that there has been no appearance of a breach of the procedural obligation imposed by Article 2 in the present case and this part of the application must, accordingly, be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
2. The applicant complains that she has no effective remedy for her complaints under Article 2, invoking Article 13 of the Convention which provides:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
According to the Court's case-law, Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, § 52).
The Court has above found that the applicant's complaints under Article 2 failed for loss of victim status or as manifestly ill-founded. For similar reasons, the applicant did not have an “arguable claim” and Article 13 is therefore inapplicable to her case. This part of the application is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.
For these reasons, the Court unanimously
Declares the application inadmissible.
Michael O'BoyleJosep Casadevall
RegistrarPresident
Full & Egal Universal Law Academy