PEARSON v. THE UNITED KINGDOM
Inadmissible
David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Simon Brown;Vincent A. De Gaetano
1. The applicant, Ms Jean Pearson, is a British national who was born in 1945 and lives in Shipley, the United Kingdom. She is represented before the Court by Ms Borrill, a solicitor practising in Leeds. The United Kingdom Government (“the Government”) were represented by their Agent, Ms Y. Ahmed, of the Foreign and Commonwealth Office. 2. The applicant’s daughter, Kelly Pearson (born in 1969), died on 10 November 1999. 3. Kelly Pearson had a history of mental health problems associated with alcohol and substance misuse. 4. In September 1999 five warrants against her were considered by a magistrates’ court. Sentencing was deferred (until January 2000) the conditions of which were that she lived with her mother in West Yorkshire, kept in touch with her probation officer (not amounting to formal probation supervision), accepted her treatment for drug abuse and did not commit further offences. She went to live with her mother in West Yorkshire. The facts set out below are taken from the documents submitted, including the transcript of the Inquest held on 25 April 2002 (paragraphs 13-18 below). 5. Kelly Pearson was seen by many health professionals from September 1999. A General Practitioner (“GP”, who treated her from September 1999) later certified to the Inquest that it was not clear whether she was a chaotic individual with a long history of substance abuse or whether there was evidence of psychotic illness. A psychiatric nurse certified to the Inquest that she was unsettled and agitated expressing paranoid ideation and suspicious thoughts and that most of her problems appeared to be caused by long-standing substance abuse. 6. Because no recall notice had issued as regards one of the five warrants from the magistrates’ court Authority, in October 1999 British Transport Police officers circulated, in error, Kelly Pearson’s details on the Police National Computer (“PNC”) citing a failure to surrender to the warrant. In short, that warrant was, erroneously, now recorded as “outstanding” whereas it had been dealt with by the magistrates’ court in September 1999. 7. On 5 November 1999 Kelly Pearson was arrested in West Yorkshire for being drunk and disorderly. She was found guilty by a magistrates’ court on 6 November 1999 and a small fine was imposed. 8. During that process, a PNC search revealed the warrant erroneously described as outstanding. She was re-arrested on 6 November 1999 and, on 8 November 1999, transferred to London (Belgravia station), arriving at 16.20. The Police Custody Officer (“PCO”) obtained a copy of the “outstanding” warrant and approved her custody at 17.50. He asked her a number of standard questions including those to determine her state of health and well-being. She replied in the negative when asked if she needed any assistance and whether she was suffering from any medical condition, illness or injury. Although she was acting appropriately and calmly, she had medication in her possession and the PCO referred her to the Forensic Medical Examiner (“FME”). The FME examined Kelly Pearson at 20.20, took her history (she was open about her history of drugs and alcohol abuse) and noted her medication (valium and an anti-psychotic medication). The FME advised her and the PCO how the medication should be taken. She was assessed as calm and fit to be detained. The PCO also advised her of her right to consult a solicitor free of charge and to inform someone of her arrest. She spoke with a solicitor by telephone and later (21.45-22.30) he consulted with her at the police station. She was detained overnight. 9. She was transported the next morning (9 November) to the magistrates’ court. At approximately 10.15 it was discovered that the warrant was not valid and she was released from custody, although she stayed in the building. The Court Police Liaison Officer informed the on-duty probation officer, who happened to know Kelly Pearson and her background, and who, in turn, informed Kelly Pearson. A solicitor (from the law firm which represented her but who did not know her) also consulted with her and, having been informed by a “prison custody officer” that there was no valid warrant, the solicitor also confirmed this to her. The solicitor saw her around 10.15 and at midday and informed her that arrangements would be made by the probation officer for a travel warrant to be issued for her to return home to West Yorkshire. Since she was not under formal probation supervision, her travel could not be funded by the probation service and the probation officer set about obtaining it from court funds. Kelly Pearson insisted on going to a friend’s house in Manchester rather than home: her solicitor and the probation officer agreed. The travel warrant to Manchester from court funds was approved at around 15.30 by a Stipendiary Magistrate. Kelly Pearson collected the travel warrant and, indicating that she knew the way to the bus station, left the court building. The probation officer and her solicitor considered her angry, frustrated and, at times, aggressive. While both believed that she might have been drinking, taking drugs or medication (she had left the court building during the day), neither considered that she needed medical assistance. According to his evidence at the Inquest, the probation officer did not consider her suicidal and he would have brought her to the bus station had he had cause for concern. Kelly Pearson called the applicant in a distressed state at 18.20: she expressed no suicidal intent. 10. Kelly Pearson did not go to Manchester but remained in London overnight. The following morning (10 November) she attended The Passage Day Centre (a registered charity) where the manager knew her and she spent some time with a mental health project worker. She was not communicative. She telephoned her mother from the Centre. The project worker also spoke to her mother and her mother explained her daughter’s history and provided the number of her GP in West Yorkshire. On the advice of the manager of the Centre, Kelly was referred to a drop-in Medical Centre (which Kelly knew) that afternoon and her GP in West Yorkshire was informed. The project worker gave Kelly Pearson the bus fare to the Medical Centre and Kelly Pearson left in an improved mood. 11. At approximately 15.00 she attended the Medical Centre (a National Health Service clinic). She saw a GP who was also familiar with her history and who had consulted with her GP in West Yorkshire before he saw her. She refused to take the medication prescription given to her. She was agitated, aggressive and expressing paranoid ideas, but not suicidal. She left the Medical Centre at approximately 16.20. 12. At 18.32 the police were called to attend when Kelly Pearson had collapsed in the street. Identification, but not medication, was found on her. She was unconscious with a weak pulse. An ambulance arrived and she was transported to hospital where she was pronounced dead at 19.26. The post-mortem examination confirmed that she died of a methadone overdose. 13. On 15 November 1999 an Inquest was opened and adjourned by the Coroner. It was resumed on 25 April 2002, after the coming into force of the Human Rights Act 1998 (“HRA”). The Inquest lasted one day. 14. The applicant, who was present and legally represented, argued that the Inquest should examine: who or what factor(s) was responsible for the original execution of the warrant not being registered with the proper authorities; who or what was responsible for incorrect details being entered on the PNC; what, if any, safeguards existed to prevent the errors; why there was no reference on the Prisoner Risk Assessment Form that came from the West Yorkshire police station to medication, drug abuse or self-harm; what happened to her medication prior to her being discharged from custody; who was responsible for securing basic financial, logistical and therapeutic support to a vulnerable woman who had been falsely imprisoned and unlawfully transported hundreds of miles from her home, family and probation officer; why was she left to die involuntarily, homeless, penniless and without sufficient medication; and why were the two treating doctors not able to take more effective action in dealing with her mental health difficulties on the day of her death. 15. The Coroner did not allow the Inquest to cover such matters, the Inquest being limited to matters directly causative of death. Since Kelly Pearson had died before the entry into force of the HRA, the question “how ... she came by her death” (section 11(5)(b)(ii) of the Coroner’s Act 1988, “the 1988 Act”) was considered by reference to the pre-HRA test (R. v. North Humberside Coroner, ex parte Jamieson [1995] QB 1) rather than by reference to the post-HRA “Middleton” test (R.(Middleton) v. West Somerset Coroner [2004] UKHL 10 and R.(Sacker) v. West Yorkshire Coroner [2004] UKHL 11). In one exchange between Counsel for the applicant and the Coroner, the latter stated that it was within his remit to determine matters that were directly causative of death but not to enquire into every underlying circumstance which, however remotely, might be considered responsible for death. Accordingly, while the error in relation to the warrant was accepted, it was not the role of the Inquest to enquire into why or how that error had occurred. 16. The Coroner obtained a considerable amount of evidence about Kelly Pearson’s background and the events of the last two days of her life. The PCO described his contact with the applicant on 8 November. The applicant gave evidence mainly about her difficulty in obtaining information from the probation officer and the solicitor on the morning of 9 November. The solicitor and probation officer described their contacts with Kelly Pearson at the magistrates’ court on the morning of 9 November. The relevant medical personnel also described their contacts with her: the FME at Belgravia Police Station as well as the mental health project worker at the Day Centre and the doctor at the Medical Centre. The Coroner also read into the record reports detailing her symptoms and treatment from her GP, community psychiatric nurse and the consultant psychiatrist, all of whom had treated her in West Yorkshire,. The police officer called to attend when she collapsed in the street and the pathologist who conducted the post-mortem examination also gave evidence. 17. The Coroner summed up the evidence. He then advised on matters of law, explaining, inter alia, that it was no part of the Inquest’s role to apportion blame given section 42 of the Coroner’s Rules 1984 (“the 1984 Rules”). He explained the five standard questions in the Inquisition Form to which the jury had to respond. Items 1 and 5 concerned certain personal identifying details of the deceased. Item 2 concerned the “injury or disease causing death”: the Coroner considered this to be “crystal clear” and that there was absolutely no dispute given the pathologist’s conclusions (“Methadone, Diazepam and alcohol poisoning”). Item 3 concerned “the time, place and circumstances at or in which injury was sustained”: the Coroner explained that there was nothing to fill in since the deceased did not suffer any injuries. Item 4 constituted the “verdict” and allowed two possible conclusions: “death by misadventure” and “an open verdict”. The former was described as a situation where ‘an unlooked for or unintended fatal outcome arose from some voluntary act or actions of the deceased’. The latter (open verdict) was explained as the verdict which could be returned if the jury formed the view that the evidence “did not fully disclose the means whereby the cause of death arose” or if there was insufficient evidence to return a verdict of death by misadventure. 18. The jury found that the cause of death was “methadone, diazepam and alcohol poisoning” (Item 3) and it returned a verdict of death by misadventure (Item 4). The Coroner then closed the Inquest as follows: “From the evidence we heard, [Kelly Pearson] certainly needed help but there is no evidence to suggest that all the professionals, or indeed the health care professionals, had done anything other than acted in good faith, professionally and tried to help her within quite difficult circumstances. [Kelly Pearson] died as a result of a drug overdose, by her own volition, which is very sad and tragic indeed. Clearly, no one who had any knowledge of this tragic death could not but have the deepest sympathy for [Kelly Pearson’s] mother who clearly was at the end of her tether trying to do the best for her. Her frustration was compounded by the unfortunate ‘cock up’ of the inappropriate warrant which then brought [Kelly Pearson] to London where she died. [Kelly Pearson’s] mother’s distress and, indeed, palpable anger, was entirely understandable, and the Court Services at the very least, owe her a big apology indeed. No doubt there will be an inquiry into this matter, which is entirely outside of the remit of my court and I shall comment no more and.....I wish them luck in their quest in seeking answers to address her concern.” 19. The applicant complained to the West Yorkshire Probation Board (“WYPA”) and a report was sent to her solicitors in September 2002 (not submitted). The London Probationary Authority (“LPA”) investigated and reported on the complaint in so far as it concerned the London area. Following a meeting with, among others, the applicant and her solicitors on 17 January 2003 and other inquiries, the LPA issued a report dated 22 January 2003. It found that, while the probation officer was not required to supervise Kelly Pearson on 9 November, he did all that was necessary to ensure a travel warrant was issued; that the erroneous warrant for arrest was not a matter for the probation service but it would be raised by the LPA before the Criminal Justice Board; and that the LPA and the magistrates’ court staff did as much as they could for Kelly Pearson. 20. The applicant appealed to the Prisons and Probation Ombudsman for England and Wales who conducted an investigation into the applicant’s claims about the LPA and the WYPA. In the Ombudsman’s report of 6 October 2003 he supported the conclusions of the LPA, finding that the probation staff had behaved professionally at the magistrates’ court and had assisted Kelly Pearson as far as it was within their means to do so. On 16 January 2004 the Ombudsman’s report found that the WYPA had fulfilled all of their obligations in respect of the conditions of the deferred sentence, noting that the relevant probation officer in West Yorkshire had gone above and beyond what was required of her. 21. The applicant also claimed to have made various complaints to the police which were “unrecorded”. She submitted that her appeal to the Independent Police Complaints Commission (“IPCC”) was “upheld” in February 2007 and that the IPCC noted that the complaint might not be investigated because of the lapse of time since the incident. She referred to a letter of 2003 wherein the Metropolitan Police Service declined to “further investigate the circumstances of the applicant’s complaints”. The applicant also believed that she had unsuccessfully pursued complaints to the Magistrates’ Court Authority. No substantiating documents were submitted. 22. In October 2003 the applicant (who had legal aid) applied to challenge the Inquest under section 13 of the 1988 Act, arguing mainly that the Inquest failed to comply with Article 2 of the Convention. Leave was granted on 20 May 2004. 23. On 6 May 2005 the case was dismissed by judgment of the High Court. That court defined the key question as: where a Coroner conducted an Inquest into a pre-HRA death, was the approach to the question of “how ... the deceased came by his death” (section 11(5)(b)(ii) of the 1988 Act) to be considered by reference to the pre-HRA test (a Jamieson Inquest) or by reference to the post-HRA test (a Middleton Inquest). 24. The High Court found that an Inquest into a pre-HRA death did not have to be Article 2 compliant given the McKerr judgment of the House of Lords (In re McKerr [2004] 1 WLR 807). The High Court concluded: “... I therefore conclude that the [HRA] does not require a Coroner now investigating a death which occurred before the coming into force of the [HRA] to conduct an inquest in an Article 2 compliant manner. It may be that his failure to do so may be actionable in international proceedings in Strasbourg, just as the failure of the Secretary of State resulted in a successful application to Strasbourg in McKerr. However, that does not assist the claimant in the domestic context.” 25. In addition, the Coroner had retained and properly applied the correct Jamieson requirements. Having noted the considerable amount of evidence obtained by the Coroner, the High Court considered that the Coroner was “undoubtedly entitled to conclude that, under the pre-HRA law, it was unnecessary for there to be a detailed investigation into how the warrant came to be executed erroneously.” 26. In commenting on the final passage of the Coroner’s speech closing the Inquest and, in concluding itself, the High Court noted: “...I wish to associate myself with the deep sympathy expressed by the Coroner. I well appreciate that the claimant, as a loving parent, will continue to feel aggrieved by the scope of the inquest. It will be no consolation to her that if [Kelly Pearson] had died after 2 October 2000, different considerations would have applied to the parameters of the inquest. Sadly, however, the less generous law which applies to the inquest in the present case fails to provide her with all the answers to which she, understandably, feels entitled. I am sorry to say that her appeal must be dismissed.” 27. Leave to appeal to the Court of Appeal was granted, the single judge noting that an intervening judgment of the Court of Appeal was in the applicant’s favour (R.(Hurst) v London Northern District Coroner [2005] EWCA 890). The applicant was legally aided and represented. 28. The appeal was therefore stayed pending the House of Lords’ judgment in the Hurst case. On 28 March 2007 that judgment was delivered (R.(Hurst) v London Northern District Coroner [2007] UKHL 13), the House of Lords reversing the Court of Appeal judgment and confirming that there was no duty on a Coroner to hold an Inquest complying with Article 2 of the Convention in relation to a death that pre-dated the entry into force of the HRA even if the Inquest took place thereafter. Lord Brown approved the judgment of the High Court in the present applicant’s case. 29. Accordingly, on 6 April 2007 Counsel advised he applicant that her appeal had no prospects of success and should be withdrawn. On 10 May 2007 the Court of Appeal dismissed the appeal on a consent basis. 30. On 2 March 2003 the applicant issued civil proceedings for damages against a number of respondents, including the Greater London Magistrates’ Court Authority, alleging negligence and false imprisonment as regards the arrest and detention of Kelly Pearson on the basis of an unlawful warrant. The case was stayed pending the above-described judicial review proceedings. Legal aid was discharged in 2004 and the applicant acted in person when the case was re-activated thereafter. 31. On 9 May 2008 the Greater London Magistrates’ Court Authority agreed to compensate the applicant in the sum of 8,000 pounds sterling (“GBP”) and for previously incurred legal costs in the sum of GBP 12,000. 32. The HRA came into force in England, Wales and Northern Ireland on 2 October 2000. 33. Section 3 of the HRA provides that so far as it is possible primary and secondary legislation must be read and given effect in a Convention compatible manner. Section 6 of the HRA makes it unlawful for a public authority to act incompatibly with Convention rights, unless it is not possible to act differently by virtue of primary legislation. A successful claim under Article 6 would render the relevant public authority liable to the plaintiff under section 7 of the HRA and a judge has power to award damages under section 8 of the HRA. 34. Section 8(1) of the Coroners Act 1988 (“the 1988 Act”) requires a Coroner to hold an Inquest in circumstances where there are grounds to suspect that the person (a) has died a violent or an unnatural death or (b) has died a sudden death of which the cause is unknown. 35. Section 11(5)(b) of the 1988 Act outlines the content of the Inquisition Form (the document completed by the Inquest jury at the end of the evidence) as follows: “(i) who the deceased was; and (ii) how, when and where the deceased came by his death; ...” 36. Rule 36 of the Coroners Rules 1984 (“the 1984 Rules”) requires that proceedings be directed solely to ascertaining: (a) who the deceased was; (b) how, when and where he came by his death; and (c) the particulars required by the Registration Act to be registered concerning the death. Rule 42 provides that no verdict shall appear to determine any question of criminal or civil liability on the part of a named person. 37. In Regina v Her Majesty’s Coroner for Western District of East Sussex ex parte Homberg, Roberts and Manners (unreported 26 January 1994), Lord Justice Simon Brown said: “In short the inquiry must focus on matters directly causative of death and must, indeed, be confined to these matters alone ... . The recent, eleventh edition of Jervis on Coroners puts it thus: ‘The question of how the deceased came by his death is of course wider than merely finding the medical cause of death, and it is therefore right and proper that the coroner should enquire into acts or omissions which are directly responsible for the death’.” 38. This latter case informed the findings of the Court of Appeal in the principal case concerning the role and function of an Inquest as a fact-finding inquiry concerning a death pre-dating the HRA (R. v. H.M. Coroner for North Humberside and Scunthorpe ex p. Jamieson [1995] Q.B. 1). Sir Thomas Bingham M.R. held that the words “How ... the deceased came by his death” in section 11(5)(b) of the Coroners Act 1988 and Rule 36 were to be understood as meaning “by what means”: “... the task is not to ascertain how the deceased died, which might raise general and far-reaching issues, but ‘how ... the deceased came by his death’, a more limited question directed to the means by which the deceased came by his death.” 39. A Jamieson Inquest provides therefore for narrow circumstances in which a lack of vigilance on the part of the third party could feature in the Inquest verdict. Having emphasised that the Inquest could not be concerned with matters of ordinary negligence (a failure to take reasonable care), the judgment defined the verdict of neglect (or lack of care) as a term of art: “Much of the difficulty to which verdicts of lack of care have given rise appear to be due to an almost inevitable confusion between this expression and the lack of care which is the foundation for a successful claim in common law negligence. Since many of those seeking that verdict do so as a stepping-stone towards such a claim the boundary is bound to become blurred. But lack of care in the context of an inquest has been correctly described as the obverse of self-neglect. It is to be hoped that in future the expression ‘lack of care’ may for practical purposes be deleted from the lexicon of inquests and replaced by “neglect.” Neglect in this context means a gross failure to provide adequate nourishment or liquid, or provide or procure basic medical attention or shelter or warmth for someone in a dependent position (because of youth, age, illness or incarceration) who cannot provide it for himself. Failure to provide medical attention for a dependent person whose physical condition is such as to show that he obviously needs it may amount to neglect.” 40. On 11 March 2004 House of Lords decided (R. (Middleton) ν West Somerset Coroner [2004] 2 A.C. 182; and R. (Sacker) v. West Yorkshire Coroner [2004] 1 W.L.R. 796) that the limited scope of the Jamieson Inquest, being insufficient to provide a meaningful conclusion as to whether the conduct of State agents might reasonably have prevented a death, was incompatible with the procedural requirement of Article 2 of the Convention. In so deciding and using the interpretation mechanism of section 3 of the HRA an Inquest, in deciding “how” the deceased came by his death, was to consider both “by what means” and “in what circumstances” the deceased came by his death. This would be applicable to cases where it was plausibly alleged that unjustified lethal force had been used by agents of the State as well as in cases where it was alleged that the State had breached its positive duty to take reasonable steps to safeguard the lives of individuals. In this latter respect, the House of Lords noted that: “The decision in [Keenan v. the United Kingdom, no. 27229/95, ECHR 2001III] shows that it does apply to a broader category of cases, since although in that case no breach of the state’s investigative obligation was alleged or found, the court based its conclusion that Article 13 had been violated in part on its opinion ... that the inquest, which did not permit any determination of liability, did not furnish the applicant with the possibility of establishing the responsibility of the prison authorities nor did it ... constitute an investigation capable of leading to the identification and punishment of those responsible for the deprivation of life. A statement of the inquest jury’s conclusions on the main facts leading to the suicide of Mark Keenan would have precluded that comment. 41. Lord Bingham therefore made the following observation as to how those Rules would henceforth be applied: “The prohibition in rule 36(2) of the expression of opinion on matters not comprised within sub-rule (1) must continue to be respected. But it must be read with reference to the broader interpretation of “how” in section 11(5)(b)(ii) and rule 36(1) and does not preclude conclusions of fact as opposed to expressions of opinion. However the jury’s factual conclusion is conveyed, rule 42 should not be infringed. Thus there must be no finding of criminal liability on the part of a named person. Nor must the verdict appear to determine any question of civil liability. Acts or omissions may be recorded, but expressions suggestive of civil liability, in particular “neglect” or “carelessness” and related expressions, should be avoided. Self-neglect and neglect should continue to be treated as terms of art.” 42. On the same day (11 March 2004) the House of Lords gave judgment in In re McKerr ([2004] 1 WLR 807). Following a finding of a breach of the procedural obligation under Article 2 by this Court (McKerr v. the United Kingdom, no. 28883/95, ECHR 2001III), that case determined that an obligation to conduct an Article 2 inquiry into a fatal shooting did not apply to a death which pre-dated the entry into force of the HRA. 43. Further to the delivery of this Court’s judgment in Šilih v. Slovenia ([GC], no. 71463/01, 9 April 2009), the Supreme Court accepted that an Inquest compliant with Article 2 should be held into the use of lethal force which took place prior to the entry into force of the HRA (McCaughey and Another, Re Application for Judicial Review [2011] UKSC 20). Lady Hale did not consider that this required the re-opening of an Inquest that had already taken place, unless there was important new material. 44. The Court refers to the Relevant Domestic Law and Practice outlined in its judgment in Osman v. the United Kingdom (28 October 1998, §§ 89-97, Reports of Judgments and Decisions 1998VIII) and in Z and Others v. the United Kingdom ([GC], no. 29392/95, §§ 57-65), ECHR 2001V). It would add as follows. 45. The House of Lords judgment in Hill v. Chief Constable of West Yorkshire ([1989] A С 53) was later relied upon in Osman v Ferguson ([1993] 4 AU. E.R.344) and is also described in the judgment of this Court in its above-cited Osman judgment. 46. The public policy constraints on recognising a duty of care by public authorities were further considered in Brooks v. Commissioner of Police for the Metropolis ([2005] 1 W.L.R. 1495). The claimant was the friend of Stephen Lawrence. Both men had been subjected to a racist attack by five white youths, which resulted in the death of Stephen Lawrence. A subsequent public inquiry held that the investigation, and in particular the treatment of Mr Brooks, was open to criticism on a number of fronts, as well as indicating unwitting racism on the part of several officers and a generalised problem of institutional racism on the part of the Metropolitan Police. The House of Lords allowed the appeal of the Commissioner of Police against the decision of the Court of Appeal refusing to strike out the claimant’s action in damages for negligence. Lord Steyn gave the main judgment and considered the continuing status of Hill’s case under English law. He conceded that it was no longer appropriate to articulate the public policy issue in terms of an entitlement of public institutions to blanket immunities from civil proceedings. However, the underlying refusal in Hill’s case to recognise a duty of care when the police merely exercise their public functions was upheld. The judgments of Lord Steyn and Lord Nicholls recognised, however, that a duty of care would be held to exist in exceptional cases. 47. Since the Hill case, a number of cases have exhibited a sufficient degree of special relationship to displace the public policy consideration preventing the recognition of a duty of care. They include circumstances where a person acts as an informant of the police (Swinney v. Chief Constable of Northumbria [1997] Q.B. 464); or has their property targeted in the course of police operations (Rigby v. Chief Constable of Northamptonshire [1985] 2 All. E.R. 986); or is employed within their service (Waters v. Commissioner of Police [2000] 1 WLR 1607); or where a person is in detention (Kirkham v. Chief Constable of Manchester [1990] 2 Q.B. 283). 48. There is a parallel common law line of authority concerning the duty of care of local authorities. It is authoritatively expressed in the case of X and Others v. Bedfordshire County Council ([1995] 3 All England Law Reports 353 and described in the above-cited Z and Others v. the United Kingdom judgment), where the House of Lords held that local authorities could not be sued for negligence or for breach of statutory duty in respect of the discharge of their functions concerning the welfare of children. Two later significant judgments found the local authority to owe a duty of care, including to parents, as regards children placed by, or in the care of, a local authority (W. and Others v. Essex County Council [1998] 3 All England Law Reports 111; and Barrett v. London Borough of Enfield [1999] 3 Weekly Law Reports 79). 49. The Court of Appeal judgment in the case of Van Colle ν. Chief Constable of Hertfordshire ([2007] 1 W.L.R. 1821) concerned a death (the killing of a witness in a criminal prosecution) which post-dated the entry into force of the HRA. The applicant’s claim under section 7 of the HRA, for a breach of Article 2 of the Convention, was upheld. 50. In so doing, the Court of Appeal analysed the differences between that action under section 7 of the HRA and common law negligence, the Court of Appeal observing that the claimant would not have succeeded if the claim had been brought in negligence: “[Counsel for the claimant] stressed the fact that the claimants did not frame their claim in negligence before the judge and they have not done so before us. That was because of the difficulty of persuading the court that the police owed them a duty of care in the light of the decisions of the House of Lords in [Hill and Brooks]. Although there was a suggestion in the course of the argument that a duty of care might be owed on the particular facts of this case and, indeed, the judge’s judgment gives the claimants some encouragement, the claimants have never advanced their case on that basis and it seems to us to be fraught with difficulty. We shall proceed on the footing that on the authorities as they stand at present no duty of care was owed by the police to the claimants.” 51. In analysing the differences between the common law action and an action under section 7 of the HRA (of a breach of Article 2), the Court of Appeal noted that the public policy concerns about finite police resources were acknowledged in the Convention case-law, by setting the threshold for a breach of Article 2 at a relatively high point, although not so high as to require gross negligence. Having cited the relevant paragraph 116 of the above-cited Osman judgment of this Court, the Court of Appeal observed: “.. in [Osman v. the United Kingdom] the [Court] stressed that not every claimed risk to life gives rise to a positive obligation under Article 2. That is because of policy considerations which are very similar to those which led the House of Lords in [the Hill] case to conclude that no duty of care is owed by the police to those in the position of Giles. However, unlike the solution so far adopted by the common law, the solution adopted by the court under the Convention was not to hold that there was no positive obligation actionable at the suit of a victim to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual, but to hold that such an obligation must be interpreted so as not to impose an impossible or disproportionate burden on the authorities.” 52. The House of Lords ([2008] UKHL 50) later allowed the appeal of the Chief Constable in the Van Colle case, finding that the claimants had not satisfied the “Osman threshold” so that there had been no violation of the substantive requirements of Article 2 of the Convention. 53. The parallel appeal before the House of Lords decided at the same time (Smith (FC) v. Chief Constable of Sussex Police [2008] UKHL 50) concerned a claim under the common law of negligence only. The House of Lords confirmed the “robust” approach of the above-cited Brooks judgment and explicitly contrasted that with the remedy available under the HRA. 54. The Law Reform (Miscellaneous) Provisions Act 1934 (“the 1934 Act”) provides for the survival of causes of action for the benefit of the deceased’s personal estate. The relevant part of section 1(1) provides: “Subject to the provisions of this section, on the death of any person after the commencement of this Act all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate.” 55. This enables recovery on behalf of the estate of damages for losses suffered by the deceased before death, including non-pecuniary damages for pain and suffering between the infliction of injury and death. Where death is instantaneous, or where it cannot be proved that the deceased experienced pain and suffering before death, damages are not recoverable under the 1934 Act (the only recoverable amount being funeral expenses). 56. The Fatal Accidents Act 1976 (“1976 Act") confers a right of action for a wrongful act causing death. Section 1(1) provides: “If death is caused by any wrongful act, neglect or default which is such as would (if death had not ensued) have entitled the person injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured.” The statutory right of action is reserved to the deceased’s dependants (parents are not considered dependants) and allows the recovery of their pecuniary loss. If there are no dependants, no pecuniary loss is recoverable. Bereavement damages (fixed at GBP 7,500) are available to parents if the deceased child was under 18 years of age. Funeral expenses are recoverable. English law does not recognise a tort of wrongful death.