Griffiths & Ors v Suffolk Police & Anor, Court of Appeal - Queen's Bench Division, October 10, 2018, [2018] EWHC 2538 (QB)

Resolution Date:October 10, 2018
Issuing Organization:Queen's Bench Division
Actores:Griffiths & Ors v Suffolk Police & Anor
 
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Neutral Citation Number: [2018] EWHC 2538 (QB)

Case No: HQ12X00549

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 10/10/2018

Before :

MR JUSTICE OUSELEY

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Between :

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MR NICHOLAS BOWEN QC AND MR DAVID LEMER (instructed by IMRAN KHAN SOLICITORS) for the Claimants

MR JEREMY JOHNSON QC (instructed by WEIGHTMANS SOLICITORS) for the First Defendant

MR ANGUS MOON QC AND MR LIAM DUFFY(instructed by KENNEDYS ) for the Second Defendant

Hearing dates: 8, 9, 10, 13, 14, 15,16, 17 and 20 November 2017

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MR JUSTICE OUSELEY :

  1. This case arises out of the murder of Mary Griffiths by John McFarlane on 6 May 2009 in Bury St Edmunds, Suffolk. The Claimants are her three daughters, suing by their father and litigation friend. They seek damages from the Chief Constable of the Suffolk Police, the ``Suffolk Police'', and North and Suffolk NHS Foundation Trust, the ``NHS Trust'', the first and second Defendants.

  2. John McFarlane and Mary Griffiths were friends; she had very recently made it clear to him that she did not wish their friendship to develop into the romantic relationship he had hoped for. He had left his wife on 23 April 2009. Mary Griffiths, who was 38, was getting back together with a former boyfriend, which Mr McFarlane angrily resented when she told him on 2 May 2009. He attempted suicide late that night. He left the house of friends where he was staying and went to the farm where he worked as a slaughter man and stockman. He tried to hang himself from a beam in a barn there. His friends discovered his plan, went to the barn and persuaded him not to go through with it. They took him home and early in the morning of 3 May took him to hospital.

  3. On 3 May 2009, a Mental Health Act Assessment Panel was convened for the purposes of deciding whether he should be compulsorily admitted to hospital for assessment under s2 Mental Health Act 1983. It concluded that he did not meet the criteria for compulsory admission. He was offered but did not accept voluntary admission. He was discharged from the hospital to go to accommodation on the farm where he worked, with arrangements for his care there by the NHS Trust's Crisis Team.

  4. On 5 May 2009, Ms Griffiths made what was treated as a 999 call to Suffolk Police at 17.56. She said that Mr McFarlane was harassing her, and she was ``really frightened.'' The call-taker did not grade the call as requiring a response within 1 hour, but as one requiring a response within 4 hours. The call-taker said that an officer would be round that evening. At about 21.45 that evening, the control room telephoned Ms Griffiths, asking if it would be possible, in view of the resources available, for the police not to come round that night as previously arranged but the next day instead; Ms Griffiths had replied that that would be fine.

  5. At about 02.40 on 6 May 2009, Mr McFarlane broke into her house with an axe and a captive bolt gun taken from the farm. He dragged her into the street, where he shot her a number of times in the presence of her children. He then made off to the garden of a friend's house where he made some attempt to commit suicide. He was arrested later that morning, and after an initial plea of not guilty, pleaded guilty to murder, and was later sentenced to life imprisonment with a minimum of 30 years to serve.

  6. The claim is brought under the Fatal Accidents Act 1976 on the basis that Mary Griffiths' death was caused by the ``wrongful act, neglect or default'' of the Suffolk Police and the NHS Trust, and that had Mary Griffiths not died, she would have been entitled to bring a claim against those bodies. Her daughters, aged 8, 10 and 13 at the time of the murder, also claim damages under s8 of the Human Rights Act 1998, as victims of their mother's murder, and damages for negligence against the NHS Trust. No negligence claim is pursued against the Suffolk Police. As a result of the order of Master Fontaine, I am concerned with whether any common law duties were breached by the Second Defendant, whether any obligations owed as a result of the Human Rights Act were breached by either Defendant and, if so, as to whether they caused any loss to the Claimants. I am not concerned with their condition, prognosis or quantum. The pleadings also raise the question of liability for nervous shock to the Claimants, but that issue was not raised at all before me, and I do not deal with it.

  7. The claim, put very shortly, is that the NHS Trust assessment under the Mental Health Act, MHA, was flawed in a number of respects, and that Mr McFarlane ought to have been admitted to hospital, voluntarily or compulsorily, on 3 May 2009, which would have prevented him being in a position to murder Ms Griffiths on 6 May. In any event, the NHS Trust should have warned her that Mr McFarlane was a danger to her, and they ought also to have communicated with the Suffolk Police. This would have affected the way in which they, in turn, addressed Ms Griffiths' concerns when she telephoned them on 5 May 2009. The Suffolk Police, in any event, ought to have graded Ms Griffiths' call as more serious than they did, and ought to have sent someone round that night. That person would have realised that the situation was more threatening than had the call-taker, and steps would have been taken to protect Ms Griffiths, who faced a real and immediate risk from Mr McFarlane, to remove her from danger, or to warn or detain Mr McFarlane.

  8. The Particulars of Claim referred to the reports of five investigations which these events had led to, in addition to the murder inquiry itself: (1) the Independent Police Complaints Commission, IPCC, report of March 2011 into the actions of the Suffolk Police in relation to the calls of 5 May 2009, (2) East of England Strategic Health Authority's independent investigation by Niche, into the care and treatment of Mr McFarlane, the Niche report, and three other reports, two specific to Mr McFarlane and one a more general review into a cluster of homicides involving people associated with services offered by the NHS Trust. Most witnesses who provided statements for the purposes of this case had also made statements to the police in about May-July 2009, which they exhibited, for the criminal investigation into Mr McFarlane. They also exhibited records of their interviews for the Niche report and their statements for the IPCC report. The evidence of the Claimants' witnesses who were not called, the IPCC statements and interviews, and Niche interviews, whether the individual had provided a witness statement for these proceedings or not, were admitted as hearsay evidence.

  9. Mr Johnson QC, for the Suffolk Police, rightly submitted, and it was not really contested, though occasionally overlooked, that the reports themselves were inadmissible as evidence, or as findings of fact or opinion; see Three Rivers District Council v Bank of England (No.3) [2003] 2 AC 1.

    The Mental Health Act 1983

  10. Its provisions set the framework within which the decisions of the medical professionals were made. Section 2 is the most important; it deals with compulsory admission to hospital for assessment:

    ``(1) A patient may be admitted to a hospital and detained there for the period allowed by subsection (4) below in pursuance of an application (in this Act referred to as ``an application for admission for assessment'') made in accordance with subsections (2) and (3) below.

    (2) An application for admission for assessment may be made in respect of a patient on the grounds that -

    (a) he is suffering from mental disorder of a nature or degree which warrants the detention of the patient in hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; and

    (b) he ought to be so detained in the interests of his own health or safety or with a view to the protection of other persons.

    (3) An application for admission for assessment shall be founded on the written recommendations in the prescribed form of two registered medical practitioners, including in each case a statement that in the opinion of the practitioner the conditions set out in subsection (2) above are complied with.''

  11. The maximum period of compulsory admission for assessment, subject to immaterial provisos, is 28 days; s2(4). S1 defines mental disorder, very broadly; for these purposes, it is ``any disorder...of the mind.''

  12. S4 deals with emergency admission for assessment, in cases where admission and detention under s2 are of ``urgent necessity'' for the patient, and compliance with s2 would involve ``undesirable delay.'' That application can be made by an approved mental health professional, and the recommendation of one rather than two registered medical practitioners suffices. It is s3 which covers compulsory admission for treatment. The duly completed application for admission operates as the authority for taking a patient and conveying him to hospital; s6.

  13. There is also provision in s5 for compulsory admission to hospital where the patient is already in hospital, as could arise where a patient who had been admitted voluntarily now wished to leave, but the medical practitioners were of the view that he should be detained. S5(2) permits detention for 72 hours on the basis of a report by the registered medical practitioner. S5(4) deals with the in-patient who is receiving treatment for mental disorder, and an appropriate nurse considers that it is of such a degree that, for the patient's safety or the safety of others, it is necessary for him to be ``immediately restrained from leaving the hospital.''

  14. Relevant police powers are found in ss135-6. S135 enables the police or an authorised medical practitioner to obtain a warrant authorising a constable, who has...

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