Yesterday, I received the transcript of the judgment of Mr Justice Garnham on the day of the funeral of Alfie Evans, 14th May 2018. This concerns my unsuccessful application for an urgent injunction prohibiting the cremation of the remains of Alfie Evans, without a prior post-mortem examination. (At the time, I did not know whether a burial or a cremation was planned.)
Since the judgment is short, I reproduce it in full below.
It should be born in mind that a matter on which his lordship expressed an opinion (whether Alfie had been “detained”) was not argued during the course of the short hearing that preceded the judgment. That much may be seen from my earlier report whence I linked to the transcript of the hearing giving rise to the judgment.
This is what his lordship, Mr Justice Garnham said in his judgment:
1. Mr John William Allman makes an application this morning before me for an injunction forbidding the burial or cremation of the mortal remains of Alfie Evans, a child of Thomas Evans and Kate James, who died tragically recently.
2. The case of Alfie Evans has received much publicity because applications were made and pursued to the Supreme Court and the European Court of Human Rights by his parents, seeking orders that they be allowed to take Alfie away from the hospital in Liverpool where he was being treated. Those applications by the parents failed because the courts
determined that it was not in Alfie’s best interests that he should be removed from the hospital.
3. Mr Allman has no direct connection with the facts of that case. He is not a relative of Alfie’s. He has no direct involvement in the earlier cases but he contends that he should be entitled to this order preventing Alfie’s burial or cremation following a correspondence he has had with the Senior Coroner of Liverpool.
4. In the course of that correspondence, he has argued that the circumstances surrounding Alfie’s death mean that an inquest is necessary. In particular, Mr Allman argues that Alfie died whilst in custody or otherwise in state detention. Mr Allman’s point is that being the case an inquest, at least arguably, should take place. He says an inquest is essential because it is only if autopsy and toxicology evidence is obtained that it will be possible to reach a concluded and satisfactory understanding of why it was that Alfie died.
5. He makes the point that whilst alive, Alfie was the subject of much medical investigation but that no investigation based upon a living child can be as an accurate in diagnosis as one carried out after the child has died, when a post-mortem is possible. Thus, he says that to conduct an inquest of a child who died whilst in custody or state detention is both necessary and mandatory under the Coroners and Justice Act 2009.
6. In my judgement Mr Allman faces two substantial hurdles in advancing this argument. First, he has, in my view, no locus whatsoever to bring these proceedings. The funeral of Alfie Evans is taking place within half an hour of the time I give this ex tempore judgment. He does not make the application with the support, or even with the knowledge of Alfie’s
parents, and I see no possible basis on which it can be said that he has a sufficient interest or sufficient standing to bring this application.
7. Mr Allman interrupts the giving of this judgement to tell me that he has informed the lawyers acting for Mr and Mrs Evans of this application and I accept that that may well be so but the point remains that there has been no response from Alfie’s parents. There has certainly been no approval of the application being brought by Mr Allman. The first
objection I have indicated seems to be of substance. Mr Allman has no locus to bring this claim.
8. Even if he did, in my judgement, the claim would be hopeless. It proceeds on a misunderstanding of Alfie’s circumstances. Mr Allman contends that Alfie was, at the time he died, in custody or otherwise in state detention. He was not.
9. It is right to say that he was being treated in a state hospital. It is right to say that he could not be removed by his parents from that state hospital because the court held that such removal would not be in his best interests. But neither of those facts, whether taken individually or together, constitute, even arguably, detention or custody. On the contrary,
Alfie was directed to remain in hospital because the view was taken by the courts, at the highest level in this country and in Europe, that that was in Alfie’s best interests.
10. There is absolutely nothing in this application by Mr Allman and it is dismissed. Thank you, Mr Allman.
10 responses to “Judgment on the day of Alfie’s funeral”
art 2 should have been engaged: this death went far beyond ordinary negligence, it was deliberate murder – and that was the allegation made at the time – coroner’s comments seem to rely on thi judgement – so you have a new application to european court I would think… who knows what drug s they’re using now? https://www.hailshamchambers.com/coroners-inquests-ordinary-clinical-negligence-insufficient-to-engage-article-2-of-the-european-convention-on-human-rights/
coroners comments are based entirely aroudn the above landmark case – in my honest opinion, that case does not act as a precedent for alfie’s case at all – you’d be able to argue this in a european court, and unless there is an appeal route you can take at uk supreme court, you should perhaps go to europe asap (might not have jurisdiction after brexit) ….
Any role or authority in the UK of the European Court of Justice after Brexit will be greatly reduced, perhaps with none being needed at all after the transition has been completed. However, my understanding is that the authority of the European Court of Human Rights will not be affected by Brexit, because the Convention and the European Union are not connected in the way that people sometimes imagine they are.
Thank you John I hope your new counsel can help this tragic, in my view murder of Alfie. It seems the poor child’s parents went through the worst trauma of loosing a child.
Power corrupts, and absolute power corrupts absolutely.We are all human, and humans make mistakes, yet we continue to have those who, like Mr Justice Garnham, believe they are infallible; would that wisdom and humility could be granted them – just occasionally
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Given up then, have you? It doesn’t take that long to amend a claim.
Thank you. That’s telling and helpful. If you really wanted not to comment, you should simply have said nothing.
I said “no comment”, rather than saying nothing, because I thought that more polite than simply ignoring your question.
If you think that my replying “no comment” was “telling” then you are definitely mistaken. It was, literally, “not telling”. The purpose of not commenting was precisely to *avoid* telling you (or anybody else) anything, except that (for whatever reason) I don’t wish to tell you (or anybody else) anything at all, at the moment, that would answer your question.
I am willing to say that the situation will almost certainly change. I have no comment now. Almost certainly you have not yet heard the last of this matter though.