Daniel Gauntlett inquest: human rights issues and the ‘Middleton’ procedure

An inquest is to be held (on 10 December 2014 in Maidstone, Kent) into the death of Daniel Gauntlett who died in freezing temperatures outside a derelict bungalow in Kent. The death brought the notorious LASPO anti-squatting legislation into focus. An issue likely to be considered at the inquest is whether Gauntlett’s human rights were breached: did the state owe him a duty regarding his European Convention Article 2 right to life?

Campaigners have blamed his death on the LASPO legislation last year that banned squatting in residential buildings. They say he was barred from entering the building to protect himself from sub-zero temperatures last February [2013]. The inquest opens up the prospect of examining whether the legislation or the authorities acting under it bear any responsibility for Gauntlett’s death.

For that the inquest will have to be held under a “Middleton procedure”. Where public authorities might have been involved in a death, the procedure allows the coroner to examine whether the deceased’s right to life under Article 2 has been breached. As well as a standard finding on cause of death (by what means someone died) the coroner may in effect indicate where blame might lie by considering the circumstances of the death.

Campaigners want the coroner to look at how far Section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 might have been responsible for Gauntlett’s death outside the bungalow in Aylesford, near Maidstone. At issue might also be the behaviour of police or social services.

Gauntlett, 35, a father of two, had reportedly been arrested by police earlier in the winter for trying to break into the bungalow, scheduled for demolition. Campaigners claim he died as a result of obeying the law after police told him not to enter the building. (See the Observer)

Article 2 of the ECHR imposes strict obligations on signatory states to protect life, saying: “Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.” Arguably if laws are passed that result in death, they may be in breach of the convention since there is “a general positive obligation  to establish a framework of laws, precautions and means of enforcement which will protect life to the greatest extent possible” (see R (Middleton) v HM Coroner for West Sussex [2004] 2 AC 182 at paragraph 2).

In Gauntlett’s case the inquest will be able to look into whether the authorities had a duty to protect Gauntlett’s life – in particular whether they knew or ought to have known of the threat to his life and if so whether they acted to protect it; and whether his life was “protected by law” – which opens the possibility of looking at the anti-squatting legislation to see whether sufficient protections are in place for those who might squat to preserve their own lives.

In the Commons debate on the anti-squatting clause that became Section 144, the under-secretary of state, Crispin Blunt, noted that squats could be unhygienic and dangerous places, the implication being that this was one justification for rendering them illegal. But he added:

“It would be much better for us to introduce an offence that is capable of protecting law-abiding property owners and occupiers on the one hand, while working with other government departments, local authorities, the police and homelessness charities to continue to address the root causes of homelessness and to mitigate any impacts the new offence might have on the levels of rough sleeping.”

There is, however, no provision in the act to address the issue of protecting the homeless. This might arguably be seen as a breach of Article 2 duties – if Section 144 is deemed likely to increase the risk of deaths because it forces squatters to sleep rough, should some provision have been added to deal with this outcome?

Legal background
McCann v UK, the 1995 “Death on the Rock” case of a suspected terrorists killed by British security forces in Gibraltar, the European Court of Human Rights indicated that a signatory’s adherence to Article 2 “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 by, inter alios, agents of the State”.

The limited nature of the standard inquest questions under the Coroners Act 1988 S.11(5)(b) was highlighted in a number of cases before the European Court of Human Rights.

The 2004 Middleton case against the coroner of the Western District of Somerset established that the ECtHR had repeatedly interpreted Article 2 as “imposing on member states substantive obligations not to take life without justification and also to establish a framework of laws, precautions, procedures and means of enforcement which will, to the greatest extent reasonably practicable, protect life.”

Article 13 of the convention requires that individuals “shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity”.

Article 2 compliant Middleton inquests have been developed to satisfy this requirement. The standard inquest under the Coroners Act 1988 S.11(5)(b) aims to answer four questions: identity of deceased, time, place and cause of death. In Middleton Lord Bingham said that to comply with Article 2 where a breach is alleged, the inquest must interpret “how” “as meaning not simply ‘by what means’ but ‘by what means and in what circumstances’.” Middleton inquests have since been held into cases of deaths in custody and deaths of children in care.

Middleton itself involved the suicide of a prisoner in jail. The committee of Law Lords hearing the case had to establish:

(1)What, if anything, does the Convention require (by way of verdict, judgment, findings or recommendations) of a properly conducted official investigation into a death involving, or possibly involving, a violation of Article 2?

(2) Does the regime for holding inquests established by the Coroners Act 1988 and the Coroners Rules 1984 (SI 1984/552), as hitherto understood and followed in England and Wales, meet those requirements of the Convention?

(3) If not, can the current regime governing the conduct of inquests in England and Wales be revised so as to do so, and if so how?

It noted: “Compliance with the substantive obligations [protecting life] referred to above must rank among the highest priorities of a modern democratic state governed by the rule of law.” The significance of the case was a background of increasing prison suicides. The figures “highlight the need for an investigative regime which will not only expose any past violation of the state’s substantive obligations already referred to but also, within the bounds of what is practicable, promote measures to prevent or minimise the risk of future violations”.

The law on Article 2 compliant inquests arose out of concerns that the standard inquest did not give an effective official investigation when convention rights might have been breached and left relatives seeking compensation to establish who might be to blame for the death in the civil courts and limited the information available to pursue criminal cases.

Article 6 of the convention says: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” In the case of Edwards v United Kingdom [2002] ECHR 303 for example the ECtHR noted that because a prisoner admitted manslaughter of a cellmate on remand, there was no court investigation into why the two had been sharing a cell – in other words whether the authorities had been culpable in putting them together. Evidence suggested the killer had exhibited signs of mental illness beforehand and hence that there was “a breach of the State’s obligation to protect the life of Christopher Edwards”.

An inquest had been opened but closed after the manslaughter conviction since there was no obligation to continue with it after the criminal proceedings had established who the killer was. A subsequent inquiry into the matter had defects, including the fact it was private, it could not compel witnesses and family could not attend (except to give evidence) or be represented by lawyers.

The judges held that there had been a breach of Article 13 of the convention on: “an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity”. They said: “The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an ‘arguable complaint’ under the Convention and to grant appropriate relief.” They added:

“There should, however, be available to the victim or the victim’s family a mechanism for establishing any liability of State officials or bodies for acts or omissions involving the breach of their rights under the Convention. Furthermore, in the case of a breach of Articles 2 and 3 [freedom from torture and inhumane or degrading treatment] of the Convention, which rank as the most fundamental provisions of the Convention, compensation for the non-pecuniary damage flowing from the breach should, in principle, be available.”

The court found “the applicants did not have available to them an appropriate means of obtaining a determination of their allegations that the authorities failed to protect their son’s right to life and the possibility of obtaining an enforceable award of compensation for the damage suffered thereby. In the Court’s view, this is an essential element of a remedy under Article 13 for a bereaved parent.”

It follows that a standard inquest was not able to fulfil the requirements of Article 13 when the state was in breach of its Article 2 rights.

Middleton v Jamieson
Middleton the Government argued that cases such as Edwards implied simply that there should be “a full, thorough, independent and public investigation of the facts surrounding and leading to the death but not necessarily culminating in any decision on whether the state or any individual is responsible”.

Coroners can make a report at the end of an inquest indicating how similar deaths might be avoided. In Middleton Lord Bingham noted: “In the ordinary way, the procedural obligation under article 2 will be most effectively discharged if the coroner announces publicly not only his intention to report any matter but also the substance of the report, neutrally expressed, which he intends to make.” This can include bringing attention to systemic failures that led to the death.

The alternative, more limited, form of inquest is called a “Jamieson” inquest after another statement by Bingham (then Master of the Rolls in the Court of Appeal) on how inquests should work in HM Coroner for North Humberside and Scunthorpe, ex parte Jamieson  [1995] QB 1 (this too a prison suicide case). The finding was:

that an inquest was a fact finding inquiry directed solely to establishing the identity of the deceased and how, when and where he came by his death; that ‘how’ within the meaning of section 11(5)(b)(ii) and rule 36(1)(b) [of the Coroners Rules 1984] connoted ‘by what means’ not ‘in what broad circumstances’ the deceased came by his death; that, applying rule 42, it was not for the coroner or his jury to determine any question of civil or criminal liability, or to appear to do so, or to impute blame”. ([1995] QB 1 at 2)

This case occurred before the Human Rights Act 1998 which requires courts and tribunals to act in conformity with the European Convention. Now even this form of inquest has to be broadly compliant with the ECHR even if not being run as an Article 2 compliant Middleton investigation.

Additionally, even under a Jamieson inquest, a wider inquiry than was implied by Bingham is possible since the coroner has discretion to extend inquiries into whatever matter seems relevant, not least since the possibility or necessity of issuing a report on how such deaths can be avoided could arise at any time during the inquest.

This discretion arises from the responsibility of any coroner to investigate the death in as full a way as possible, as described in Jamieson: “It is the duty of the coroner … to ensure that the relevant facts are fully, fairly and fearlessly investigated … He must ensure that the relevant facts are exposed to public scrutiny … He fails in his duty if his investigation is superficial, slipshod or perfunctory. But the responsibility is his. He must set the bounds of the inquiry.” ([1995] QB 1 at 26)

Note: The Middleton Inquest principles are now contained in the Coroners and Justice Act 2006 Section 5   

Twitter: alrich0660

See also:
Anti-squatting law and the death of Daniel Gauntlett
Anti-squatting law: protection for property could crumble  

Special note: The case of Mr Gauntlett should not be pre-judged. In particular there is some suggestion that social services did have some involvement with Mr Gauntlett and that the police may have sought to prevent him from breaking and entering the bungalow – an offence that, of course, long predated the new law.

Here is a useful piece on Middleton inquests:
Where Inquests Raise A Question of Human Rights – One Crown Office Row (pdf).

Ministry of Justice Guidance (pdf):
“There might be instances where the police are asked to clear a residential building that is known to house rough sleepers. In these circumstances, the police might wish to liaise with local authorities and homelessness service providers prior to enforcement action to ensure they are ready to assist if required and give appropriate advice on housing options. This process is likely to work most effectively if protocols on joint working have been developed in advance. In other circumstances, the fact that somebody is squatting to avoid rough sleeping might only become known once enforcement action has been taken. In these circumstances, liaison with local authorities and homelessness providers would ensure the appropriate advice and assistance is offered to the accused after the point of arrest.”

Matters to be ascertained
(1) The purpose of an investigation under this Part into a person’s death is to ascertain – (a) who the deceased was; (b) how, when and where the deceased came by his or her death; (c) the particulars (if any) required by the 1953 Act to be registered concerning the death
(2) Where necessary in order to avoid a breach of any Convention rights (within the meaning of the Human Rights Act 1998 (c. 42)), the purpose mentioned in subsection (1)(b) is to be read as including the purpose of ascertaining in what circumstances the deceased came by his or her death. (Coroners and Justice Act 2006 Section 5)

MP’s view
Mike Weatherley MP, a supporter of the anti-squatting legislation, told the Kent Argus: “It is true that some of those who are homeless have squatted but this does not make them squatters.

A typical squatter is middle-class, web-savvy, legally minded, university-educated and, most importantly, society-hating. They are political extremists whose vision for society is a dysfunctional medieval wasteland without property rights, where an Englishman’s castle is no longer his home … “If squatters really cared about the homeless then they would help them access council services, not scare them into believing that they would be arrested.”
A speech by Mr Weatherley is here


Filed under Analysis, Constitution, ECHR, European Convention on Human Rights, Human rights, Law, Legal, Politics, Public law, Social welfare, UK Constitution, UK Law, UK Politics, Uncategorized, Welfare law

6 responses to “Daniel Gauntlett inquest: human rights issues and the ‘Middleton’ procedure

  1. Pingback: Criminalisation of squatting: how protection of property could crumble | Thinking legally

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  3. Pingback: Kent: Coroner’s Inquest into the Death of Daniel Gauntlett: Homeless Human | HumansinShadow.wordpress.com

  4. Pingback: Question’s unanswered in the Daniel Gauntlett inquest | AL's LAW

  5. Pingback: Squatting, adverse possession and the LASPO s.144 debacle | AL's LAW

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