10 June 2008

FOURTH SECTION
Application no. 15651/07
by Helen SACKER
against the United Kingdom
lodged on 20 June 2002

STATEMENT OF FACTS
THE FACTS
The applicant, Ms Helen Sacker, is a British national who lives in Rotherham. She is represented before the Court by Mr P. Mahy, a solicitor practising in Sheffield.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is the mother of Sheena Creamer, who died on 7 August 2000 while she was being held on remand at HM Prison New Hall, West Yorkshire.
1.	Ms Creamer's detention and suicide
Ms Creamer was aged 22 at the time of her death. She was the single mother of two children. On 29 July 2000 she was remanded in custody at Sheffield Magistrates' Court for an alleged offence of dishonesty. She was taken to HM Prison New Hall. On 4 August 2000 at a further hearing in the magistrates' court she was again remanded in custody until 23 August 2000. While she was at court she became very upset. The court custody officer opened a “Self Harm at Risk” Form F2052SH at 1 p.m. that day. Under the heading “Why are you concerned?” she wrote:
“DP [detained person] seems very depressed says if she goes back to prison today she will do herself in very tearful whilst in court, had to be forcibly removed from dock when remanded.”
Under the heading “What does the prisoner say about his/her situation?” she wrote:
“Says she will lose her accommodation worried about her children says she has nothing left her life's a mess.”
Ms Creamer was taken back from the magistrates' court to HM Prison New Hall. On her arrival she was sent to the health centre for observation. A member of the nursing staff recorded on the form F2052SH at 6 p.m., in the section where she was required to give her assessment of Ms Creamer on her initial referral, that she had stated that she was not suicidal at all. On the following day, 5 August 2000, she was taken to the care and supervision unit for an adjudication about her behaviour in court the previous day. A member of the nursing staff recorded in the daily supervision and support record at 10 a.m. that Ms Creamer was a bit upset during the adjudication. She was seen later in the health centre by Dr S., who was a locum medical officer. Dr S. entered the following assessment on her F2052SH:
“Not suicidal or thinking of self harm. Was reacting to failure to get bail. Compos mentis. I feel she is manipulative.”
Dr S. referred Ms Creamer back to the residential unit. But he did not complete the part of the F2052SH entitled “Discharge Report”. This part of the form states that it must be completed in all cases where a prisoner is discharged or returned to the residential unit, and that if necessary a case review is to be held involving residential staff to decide a post-discharge support plan. He was not familiar with the form, and he was unaware of the procedure that had to be followed in cases where a form F2052SH had been opened.
Ms Creamer was returned to the residential unit at 10.30 a.m. on 6 August 2000. She was placed in a single cell with a modesty curtain around the toilet. During the afternoon she associated with other prisoners. During the evening when she was back in her cell she was observed every half hour, as her F2025SH had not been closed. When she was checked at 11.30 p.m. she was found hanging by a ligature made from the modesty curtain which had been attached to the bars of her cell window. Steps were taken to try to resuscitate her. These steps continued while she was being taken by ambulance to hospital, but they were unsuccessful. Ms Creamer was pronounced dead in the hospital at 12.40 a.m. on 7 August 2000.
2.	The report commissioned by the Operational Manager for Women's Prisons
On 7 August 2000, a report was commissioned by the Operational Manager for Women's Prisons, in an attempt to find out why the death had occurred and what could be done to prevent such a tragic occurrence in the future. The report, which was concluded on 1 October 2000, revealed that Ms Creamer had numerous previous convictions for crimes of dishonesty, and that she had acquired a drug habit. When she was admitted to the prison on 29 July 2000 it was noted on her inmate medical record that she had admitted that she was a regular intravenous drug user. She admitted to using heroin and to consuming large quantities of alcohol. She was immediately placed on a detoxification opiate withdrawal programme. When she was remanded on 4 August 2000 for a further three weeks in custody she was still showing signs of withdrawal. She reacted aggressively to the refusal of bail and had to be removed forcibly from the dock. It was at this stage that PCO Clayton opened the F2052SH. She noted on the form that Ms Creamer should be assessed on arrival by the residential unit manager. The absence of any record that this was done indicates that no such assessment was carried out by the reception staff on her arrival. They appear not to have been alerted to the fact that she had been on a detoxification programme. She was placed in a five-bed ward in the Health Care Centre.
Ms Creamer appeared before the Governor the next day for an adjudication about her behaviour in court on 4 August 2000. The Governor found her guilty of a disciplinary offence and ordered seven days stoppage of earnings and two days loss of association. The effect of the adjudication was that she was deprived of the opportunity of associating with other prisoners during the evening. The Governor noted that she was upset, so she decided not to order loss of television in her room in the residential unit. But she was not aware when she made the order that Ms Creamer was subject to an F2052SH, as this fact had not been reported to her. Ms Creamer told prisoners in the health centre that she was going to take her own life, but this information was not passed on by them to the prison staff because it was not taken seriously. The cell into which she was placed on her return to the residential unit was a single cell. Contrary to the standard regime that ought to have been applied in her case, it did not have a television set. The prison officer who checked Ms Creamer's cell at 11.30 p.m. and found her hanging by a ligature did not have a set of cell keys. She had to summon assistance to gain access to the cell. This hampered her response to the incident.
The report contained numerous criticisms of the systems that were in operation on the night of Ms Creamer's death and recommendations for their improvement. Many of the defects that were noted appeared to have been due to poor communication between members of staff with each other and between members of staff and prisoners, and to an inadequate understanding of the appropriate procedures.
3.	The first inquest
The inquest into Ms Creamer's death was held in accordance with the statutory requirements. Following the guidance that was given as to the conduct of inquests in R v Coroner for North Humberside and Scunthorpe, Ex p Jamieson [1995] QB 1, the coroner refused the applicant's request that the jury be permitted to add the words “contributed to by neglect” to their verdict. The jury, by a majority of 9 to 2, entered a verdict of suicide. Having read the verdict, the coroner made the following statement before he closed the inquest:
“Just before I formally conclude this inquest I intend now making an announcement pursuant to rule 43 of the Coroners Rules that it is my intention to write to the prison department and inform them as to my grave concerns regarding the locum medical officer at New Hall Prison on this occasion not having a working knowledge of the form 2052SH procedures. I regard the form 2025SH as a vital tool in identifying those prisoners who are vulnerable and at risk of self harm or suicide and I take an extremely dim view of the fact that somebody in such an important position as a medical officer albeit a locum on this occasion demonstrated such a scant understanding of what is such an important provision and therefore I shall write to the Head of the Prison Service pointing out my concerns pursuant to this rule.”
4.	The judicial review proceedings
The applicant applied for judicial review of the coroner's refusal to allow the jury to add a finding of neglect to their verdict.
The application was refused by the High Court on 4 July 2002.
On 27 February 2003 the Court of Appeal allowed the applicant's appeal, quashed the jury's verdict and ordered a fresh inquest. Lord Justice Pill, giving the judgment of the Court of Appeal, concluded, inter alia, that:
 “The Coroner's letter to the Director General establishes that there was evidence that [Dr S.] did not fully understand the F2052SH system. The procedure provided by the form was not in fact followed. While there was evidence of ... 'system neglect', from the contents of his letter it is also clear that, in the Coroner's view, action should be taken, in relation to the alleged neglect ... to prevent the occurrence of similar fatalities. Had the Coroner had the guidance given in Middleton [a 2002 Court of Appeal judgment], it is highly likely that he would have allowed the jury the opportunity to add a rider to their verdict, if they saw fit, referring to neglect. It cannot in my judgment be said that the required causal link between the alleged neglect and the cause of death is absent. Measures may well have been taken, had the procedure in the form been followed, which arguably would have prevented the death.”
The coroner appealed to the House of Lords, which, on 11 March 2004, found in favour of the applicant, on the ground that the law concerning the conduct of inquests had, since the passing of the Human Rights Act 1998, to be interpreted in the light of the United Kingdom's obligations under Article 2 of the Convention. Since, under the law as it stood at the time of the inquest, the coroner in this case did not have an opportunity of inviting the jury to identify the cause or causes of Ms Creamer's suicide, the steps (if any) that could have been taken and were not taken to prevent it and the precautions (if any) that ought to be taken to avoid or reduce the risk to other prisoners, the House of Lords ordered a new inquest to be held. The House of Lords further observed:
“It is plain that Ms Creamer, like so many other women in prisons, fell within the profile of those who most commonly die while they are in custody. She was a young woman, she was unconvicted and she was withdrawing from drugs. It is plain too that she was placed on her own in a cell without a television set where material was available for her to hang herself. The tragedy which occurred in her case is that these factors came together to create the dark, desperate sense of isolation and hopelessness that drives a person to contemplate, and then to commit, suicide. There are signs in the report commissioned by [the Operational Manager for Women's Prisons] that this tragedy might have been prevented if there had been better communication between members of staff with each other and between staff and prisoners. It may be too that it was a mistake to rely on the routine system of half-hourly inspections in her case as this left ample time for prisoners, aware of the system, to take measures while they were unobserved that could lead to self-harm and ultimately to suicide.”
5.	The second inquest
A fresh inquest took place between 15 and 19 January 2007.
The jury returned a verdict of accidental death. It also found that there had been failings in the F2052SH procedure and training, although these had not contributed towards Ms Creamer's death.
B.	Relevant domestic law
A person who suffers injury, physical or psychiatric, in consequence of the negligence of another may bring an action for damages for that injury. An exacerbation of an existing condition constitutes such injury. Upset and injury to feelings resulting from negligence in the absence of physical or psychiatric damage or exacerbation do not entitle a plaintiff to damages. Any personal-injury action maintainable by a living person survives for the benefit of his estate and may be pursued after his death.
Claims arising from the death of an individual caused by negligence are brought under the Fatal Accidents Act 1976 or the Law Reform (Miscellaneous Provisions) Act 1934. The former enables those who were financially dependent on the deceased to recover damages for the loss of support. The latter enables damages to be recovered on behalf of the deceased's estate and may include any right of action vested in the deceased at the time of his death together with funeral expenses.
According to the case-law, the common law imposes a duty of care on prison authorities in respect of those in their custody. The prison authorities have a duty to exercise reasonable care in the prevention of injury and harm and a duty to provide medical care. This duty extends to the protection of a mentally ill prisoner against committing suicide (see further Keenan v. the United Kingdom, no. 27229/95, §§ 80-82, ECHR 2001-II).
COMPLAINT
In her application lodged on 20 June 2002, the applicant complained that there had been a breach of her substantive rights under Article 2 of the Convention since her daughter had died because of the failings of the Prison Service. She also complained under Article 2 and under Article 13 taken in conjunction with Article 2 that there had been no effective investigation into her daughter's death.
Following the second inquest the applicant withdrew the procedural complaint under Article 2, and now complains that there was a substantive breach of Article 2 and that, because her daughter's death occurred before 2 October 2000, when the Human Rights Act 1998 came into force, she has no domestic remedy for damages, in breach of Article 13 of the Convention taken in conjunction with Article 2. The applicant states that, had she been able to bring civil proceedings, the second inquest jury's verdict would not have been binding on the civil courts.
QUESTIONS TO THE PARTIES

1.  Was there a failure to protect Ms Creamer's right to life, in breach of Article 2 of the Convention?

2. Did the applicant have an arguable claim under Article 2? If so, was she afforded an effective remedy, in accordance with Article 13 of the Convention, in respect of it?