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.

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

Whilst many will be unsurprised to be told that a fresh inquest cannot reach a verdict inconsistent with an earlier homicide conviction, it is nevertheless reassuring to learn that a statutory lacuna on this issue has now been firmly filled by the Divisional Court in this recent case.

The relevant part of the CJA 2009 clearly states that if an inquest is suspended and later resumed after a homicide conviction the conclusion of the inquest may not be inconsistent with the criminal jury’s determination. This recent challenge arose in the context of a situation not addressed in the statute: where a wholly fresh inquest was to be held.

Greater Manchester Fire and Rescue Service v Veevers [2020] EWHC 2550 (Comm) 25.9.20 - Judgment here

 Can a family’s inquest costs be recovered in a subsequent civil claim if an admission has been made prior to the inquest? If the admission has in fact been informal or equivocal, the answer may well be yes.

The Background

This claim arose from the tragic death of Mrs Veevers’ son, a firefighter, who died in a fire of 2013 from hypoxia and heat exhaustion. Around two months before an inquest was due to begin in 2016, and after the family representatives had already undertaken ‘extensive investigations’, the solicitors for the fire service wrote to their counterparts for Mrs Veevers, setting out:

Our clients have made no assessment of the potential for liability to the estate and dependants of (the deceased) but they have instructed us to set out their position in relation to any potential claim which may be brought for the family…Our clients are not in a position to consider an admission of liability and we have not undertaken a detailed forensic analysis of the potential for liability in any civil claim on their behalf. The purpose and objective in making the comments which we make directly below is to attempt to remove any additional stress from the family during and immediately after the inquest…We write in open correspondence in order to advise that our clients are willing to compensate the estate and dependents of Stephen Hunt pursuant to the Fatal Accidents Act 1976 and Law Reform (Miscellaneous Provisions) Act 1934, for any loss which they may prove to be attributable to the incident on 13 July 2013 together with payment of their reasonable costs.’

The six-week inquest was heard with a jury who returned a conclusion of unlawful killing, the jury finding the fire was probably started deliberately.[1] Civil proceedings were subsequently issued and it was admitted that the fire service were liable for failing to ensure the deceased did not exceed the maximum time using breathing apparatus and PPE. The fire service also agreed to pay Mrs Veevers’ reasonable costs. Her total costs bill was £334,000. She sought recovery of the costs incurred by her legal representatives preparing for and attending the inquest, which amounted to £141,000, over 40% of all of her costs.

Chief Coroner’s Guidance No. 37 - "COVID-19 Deaths and Possible Exposure in the Workplace "  amended on 1st July (here)

It is not often that guidance from the Chief Coroner excites the twittersphere.  But the original version of this Guidance #37, issued on 28 April (see our earlier blog here), managed to generate much comment from the public, Doctor’s Associations (here) and even MPs regarding the approach to considering shortcomings in the provision of PPE. The Chief Coroner puts out guidance, he does not make statements of policy. Some seem to have even misunderstood his guidance to be advocating that healthcare workers’ deaths should not be referred to a coroner.[1]. Nevertheless, many commentators will feel vindicated in that the Chief Coroner has now updated his earlier Guidance which now focuses more on the individual judicial discretion of each coroner.

Re Ketcher and Mitchell, [2020] NICA 31 (judgment here) 3 June 2020.

There has rightly been increasing emphasis since the Mid Staffs inquiry and other high media profile investigations, such as Hillsborough, on the responsibility of public bodies to be open and candid in all of their dealings with the Coroner.  Whilst legislation falls short of imposing a statutory duty of candour in respect of inquests, the expectation many will have of our public bodies is that they will do all they can to assist the coronial investigation in ascertaining the truth of how a person came to die, regardless of any reputational consequences or fear of future litigation.  Indeed the Ministry of Justice has recently published the Government's protocol that sets out the principles it expects to guide the behaviour of Government Legal Department lawyers and those they instruct at inquests. This includes an exhortation to "approach the inquest with openness and honesty, including supporting the disclosure of all relevant and disclosable information to the coroner" which they suggest should be a 'model of behaviour' for all interested persons. (see here at Annexe A)

Against that background this recent decision from the Northern Irish Court of Appeal may seem rather out of kilter with the laudable aim of openness.  Although expert evidence obtained solely for the purpose of an inquest will not, say the NI CA, attract litigation privilege, any compulsion to disclose such a report will, in the view of the Court, be highly likely to be unreasonable as being contrary to the public interest in encouraging interested persons to investigate and prepare their own cases. 

Notably however, the context here was an expert report obtained on behalf the bereaved families in an Art 2 inquest – it is more difficult predict whether,  if it were a public body seeking to supress relevant evidence in an Art 2 inquest, the public interest balance would still be drawn in the same place.

R (on the application of Maguire) v HM Senior Coroner for Blackpool & Fylde [2020] EWCA Civ 738. (judgment here)

The Court of Appeal has ruled that the state's investigative obligations under Article 2 ECHR do not arise where someone lacking capacity and deprived of their liberty dies of natural causes.The state’s obligations under Article 2 had not been triggered in this case by the mere fact of vulnerability and that the deceased was deprived of her liberty in a care home pursuant to a standard authorisation under DOLS  [1].

Facts

Jackie, who had Down’s syndrome and learning disabilities, and so was unable to care for herself, had fallen ill at her care home in the days before her death.  The care home provided only personal (not medical) care but, when Jackie’s condition worsened, she had refused to go to hospital and had been permitted to remain at the home overnight.  Jackie’s condition worsened further and she was eventually taken to hospital where she died as a result of a perforated gastric ulcer, peritonitis and pneumonia.  At her inquest her family criticised (inter alia) the lack of a protocol at the care home for admitting Jackie to hospital in spite of her refusal.  However, the Coroner ruled at the close of evidence that Article 2 ECHR was not engaged, such that the “how” question for the jury to answer under section 5(2) of the Coroners & Justice Act 2009 had its narrower meaning of “by what means” instead of “by what means and in what circumstances”. 

The jury who were not permitted to consider any failings on the part of those caring for Jackie returned a conclusion of natural causes. Jackie's mother sought judicial review of the coroner's decision, when that application failed she appealed. 

CHIEF CORONER’S GUIDANCE No. 38:  REMOTE PARTICIPATION IN CORONIAL PROCEEDINGS VIA VIDEO AND AUDIO BROADCAST

On the 11th June 2020, The Chief Coroner published his Guidance No 38, headed ‘Remote Participation in Coronial Proceedings via Video and Audio Broadcast’. (here)

Just as the Crown Courts start to address the difficult issue of holding jury trials once more, so the Chief Coroner has sought to encourage Coroners, Practitioners, Interested Persons, Witnesses, the Press and Public as to how Inquests can or may be held as the lockdown is released, albeit gradually, and with social distancing maintained.

The current pandemic has increased the need to use technology to facilitate remote participation in hearings. Whilst it is the Chief Coroner’s view that partially remote hearings should take place wherever possible if the technology allows, it is in the interests of justice and its use must be consistent with the administration of justice.

A Coroner must be physically present in Court to hold an Inquest

It may come as a surprise to everyone to learn that, unlike judges sitting in civil and criminal jurisdictions, Coroners must be physically present in a Courtroom to hold an Inquest. Civil and Criminal judges have been able to hold remote hearings from their kitchens, attics and even gardens during the pandemic but nothing can be conducted by a Coroner acting remotely from their office or home.

If a Coroner has to be physically present in Court to hold an Inquest, who else does?  Can there be a mix and match or as the current phrase in Coronial Circles gains traction, has the Chief Coroner heralded the start of ‘Harlequin Inquests?’ [1]