Farrell v Senior Coroner North East Hampshire  [2021] EWHC 778 (Admin) 30.3.21 (judgment here)

In this strongly worded dismissal of a s.13 application the Divisional Court (including the new Chief Coroner) were perhaps signalling to Coroners that, whilst there may be an understandable wish to placate the bereaved,  detailed consideration should be given before lending one's support to an application for a fiat for a fresh inquest.  A fresh inquest cannot be justified simply to allay concerns of a member of the bereaved family, particularly where a reinvestigation would cause unwarranted distress to another.

When a family member raised suspicions of foul play – albeit with no real evidence in support - the Senior Coroner positively supported the application to the Attorney General for a fiat to apply to quash his documentary inquest into a mesothelioma death. [1]  That stance was likely to have been influential in the fiat being given.    

The Divisional Court have, however, now roundly dismissed the subsequent s.13 application on numerous grounds. Not only because of the lack of any evidence of the foul play being alleged, but importantly also noting that:

  • A fresh inquest would cause cost and delay to the coroner's service.
  • It would divert the health professionals involved away from their public service by requiring preparation for and attendance at a hearing.
  • The interests of justice do not require a family member be given a platform to air unjustified suspicions.

 

The principles of open justice and transparency are fundamental to our justice system. They must be cherished and protected as vital to preserve the rule of law.  However, a simple legislative oversight at the start of the pandemic has meant that, whilst most other courts increased their accessibility to the public by giving access via remote video platforms,[1] the Coroners Courts became more closed and secretive. All public, including accredited media representatives, have remained banned from watching any online broadcasts of coronial proceedings over the past twelve months.

This absurd position arose when the hastily passed Coronavirus Act 2020 made provision for four new sections to be inserted into the Courts Act 2003 which allow public participation in criminal, civil and family court hearings conducted by video link,[2] but unfortunately (confirming the view that Coroners Courts[3] are the forgotten relatives of the rest of the justice system) the broadcasting of coronial proceedings was overlooked and so wholly omitted from the Coronavirus Act 2020.[4]  

With a stroke this unintentional oversight has meant that for the past year neither the public nor accredited journalists have been able to watch any inquest proceedings unless they have been able to persuade a friendly coroner to let them walk into their socially distanced courtroom.   Happily, there have now been significant steps taken to correct this position via the Police, Crime, Sentencing and Courts Bill 2021.

R (Grice) v HM Senior Coroner of Brighton and Hove [2020] EWHC 3581 (here)

Will an inquest always be required after a homicide trial when there have been alleged failures by state agents to protect life?  In this Judicial Review case Garnham J gives us the answer by summarising the scope of the requirements of an effective Art 2 investigation and, particularly helpfully, setting out what is not required to satisfy the state’s the investigative obligation.

The Senior Coroner had refused to re-open the inquest into the murder of a woman by her former partner after her complaints of stalking were mishandled by police. There was no question that Art.2 was engaged on the basis of potential breach by the police of their operational duty to safeguard the victim’s life. Furthermore, the criminal trial alone had not satisfied the state’s Art.2 investigative duty.  However, the judge agreed with the Senior Coroner that the European Convention does not adopt a prescriptive approach to the form of the Art.2 investigation, so long as minimum standards are met.  One must look at the totality of the investigations conducted by the state whilst remembering that even the minimum requirements involve a degree of flexibility.

In this case the Art.2 obligation to conduct a prompt and effective independent inquiry with sufficient public scrutiny and sufficient involvement of the next of kin had been met by the combination of the criminal trial, a domestic homicide review and the three other investigations of police conduct. The Senior Coroner was not only entitled to find that these enquiries satisfied Art.2; she was right to do so.

In the matter of an Inquest into the death of Patrick McElhone [2021] NICoroner 1 (here)

The coronial world is still coming to terms with the impact of the Supreme Court decision in Maughan and what it will actually mean for inquests in practice. Even following the additional guidance from the Chief Coroner (here) the twittersphere still reverberates with questions such as how one can be ‘probably unlawfully killed’, whether how inquests are conducted will change if it is now open to return an unlawful killing conclusion in more circumstances, and whether Coroners will be open to judicial review if they fail to use those two words in a relevant case.

Some assistance with how to tread those difficult lines now comes from across the Irish Sea. The McElhone inquest provides a helpful example of how to frame what is (but for a semantic hair’s breadth) an unlawful killing finding within a narrative conclusion without needing to use those precise words.

Indeed, Mrs Justice Keegan has not only provided a tutorial on how to deal with factual findings in an unlawful killing inquest but she also more generally demonstrates how to tell the story of any death in a brief, concise yet comprehensive narrative.   Her verdict is so well worked that one doesn’t need to set out much of the background facts of the case here for the reader to understand what went on.

In the matter of the Inquest into the death of Michael Richard Vaughan [2020] EWHC 3670 (Admin) 16.12.20 (here)

Sometimes within the simplest of cases lies a wealth of useful reminders and lessons for everyone.   This superficially uncomplicated and uncontested application under s.13 Coroners Act 1988 is a treasure trove of learning for anyone who may find themselves seeking a fresh inquest.

The request for a fresh inquest here was well founded, and so one might expect the remedy to have been swiftly achieved.   The deceased had died after a self-administered paracetamol overdose and had left a note that provided evidence of his intent.  Unfortunately, that note was not put before the coroner: had it been her inquest conclusion of ‘misadventure’ would probably have been different.  But, despite the bereaved raising their concerns about the accuracy of the conclusion and the absence of the note on the day the inquest ended, it took more than five years before a fresh inquest was ordered by the High Court 

Chief Coroner’s Law Sheet #6,  13 January 2021 (here)

The new Chief Coroner, HHJ Teague QC, has just published his first legal guidance in the form of  “Law Sheet 6” addressing the impact of the case of R (on the application of Maughan) v Her Majesty’s Senior Coroner for Oxfordshire [2020] UKSC 46 on coronial practiceThese Law Sheets are written to assist coroners with the law and their legal duties, and to provide commentary and advice on policy and practice.

On 13 November 2020 the Supreme Court determined in Maughan that the civil standard of proof is to be applied in coronial inquests for all conclusions that a coroner or a coroner’s jury might return, including unlawful killing. (See our earlier blogs (here and here.) Previously it had been accepted that the ‘short form’ conclusions of unlawful killing and suicide could only be returned if found proven to the criminal standard of ‘beyond reasonable doubt’. However, the Supreme Court brought coronial law into line with a number of other areas of civil law when it held that, as a matter of common law principle, the criminal standard should not apply to any conclusion in coronial proceedings.

Setting that change in its wider context, in 2019 there were fewer than 166 conclusions of unlawful killing made by coroners or juries in inquests, this was half a percent of the 31,284 inquests concluded.  The issue of unlawful killing is likely to feature in relatively few inquest cases. However, when it does arise it will of course be of substantial importance to all involved.

 R (Maughan) v Senior Coroner for Oxfordshire [2020] UKSC 46 (here)

There is perhaps no better example of the judicial development of our common law than Maughan. A case which began with a family member appealing against what they believed was the incorrect application of the civil standard of proof to a suicide conclusion has ended with the Supreme Court determining that not only was the standard of proof correctly applied in circumstances where suicide is a civil finding, but that the same logic also applies to an inquest conclusion of unlawful killing.

There is to be only one standard of proof in inquests and that is proof that the fact in issue more probably occurred than not.

This will no doubt surprise many readers, and perhaps rightly so, as the decision in Maughan is from a divided court: a 3:2 majority concluded that the standard of proof for all conclusions at an inquest  – including ‘suicide’ and ‘unlawful killing’ – should be the civil standard.

Although as one of the dissenting voices, Lord Kerr, has quite rightly emphasised in another setting:[1] the importance of dissent, even when in the final court of appeal, is that it contributes to the transparency of the debate, and far from detracting from the authority of the majority opinion, that opinion, in confronting and disposing of an opposite view, if it has been done convincingly, will be all the more commanding of acceptance as a result.

Chief Constable West Yorks Police v Dyer & Assistant Coroner for West Yorkshire & others [2020] EWCA Civ 1375, 27 October 2020.  Judgment here

Judicial endorsement that Black Lives Matter sends an important message to all.    Whilst our British judges might never be expected to deliver as hard hitting and politicised a judgment as that handed down by the wonderful US District Judge, Carlton W. Reeves, this August in Jamison v McClendon (here) -  which for this blogger comes top of the list of the most powerful first 20 lines of any court's judgment this millennium - the recent decision from the Court of Appeal in Dyer nevertheless sends a clear signal that the racial background of a person who dies after contact with the police can matter when open justice is in issue.

Specifically, the appellate court has determined that when the Coroners Rules require a coroner to consider the test of ‘expediently’ this is to equated with ‘appropriately’ and should include considerations of the wider interests of justice.   For one of the three Lord Justices of Appeal a relevant factor in considering those wider interests can be that the person whose death is being inquired into was a black man who died in the custody of the police.

Rushbrooke v HM Coroner for West London [2020] EWHC 1612 (Admin) 23.6.20. judgment here

With such a huge backlog of inquest cases waiting to be heard and the difficulties of convening inside a courtroom during the current pandemic, the appeal of holding a swifter, documentary only inquest is plain to see.  However, the recent case of Rushbrooke is a timely reminder to coroners that they will run the risk of their findings being quashed if the haste to hold a paper-based inquest results in an insufficient investigation.

R (Skelton) v Senior Coroner for West Sussex and the Chief Constable of Sussex Police & Robert Trigg (interested parties) [2020] EWHC 2813 (Admin)  , 23.10.20 Judgment here

Determining whether Art 2 procedural obligations are engaged at an inquest can be one of the most challenging legal questions in the coronial jurisdiction.  The issue for a coroner is not whether breaches of a substantive Art 2 duty have been made out, but whether such breaches are “arguable”. 

The Divisional Court have made it clear that, when considering arguability, coroners should apply the test in Maguire,[1] asking themselves whether there is a ‘credible suggestion’ that a breach of substantive Art 2 rights may be established after the further and fuller investigation of all the evidence which will be available at a Middleton inquest

Further, should a coroner’s decision be challenged with unqualified human rights in play, the Divisional Court’s role is not to assess the quality of the decision on pure public law grounds but to apply heightened scrutiny, effectively asking itself the same question that the coroner has considered.  Hence in practical terms there can only be one right answer and a rationality challenge collapses into a merits review.