In the matter of Hugh Jordan [2018] NICA 34 (15 October 2018) decision here

As the ongoing Maughan[1] litigation focuses minds on the standard of proof applicable for a suicide finding at an inquest, it is perhaps surprising how little thought is given to the issue of the burden of proof at an inquest. However, in the latest episode in the long running saga of the inquest into the death of Pearse Jordan, the Northern Ireland Court of Appeal has added some clarity to the position by recognising that there can, in some situations, be a burden of proof even in an inquisitorial setting. Nevertheless, determining factual issues in inquests will, sometimes, not be possible.

Burden? Standard?

First, a quick reminder of your second day of evidence lectures at law school:

  • Standard of proof: the level of evidential certainty required to establish a fact.
  • Burden of proof: the obligation on a party to adduce evidence to establish a fact. 

Of course I hear you say, even a law school fresher would know there is no burden of proof within inquisitorial proceedings! Surely the clue is in the name? An ‘inquiry’ asks questions and establishes facts, but it does not require anyone to prove or disprove anything. An inquiry has no parties; no one has a formal case to put or a case to meet.

But just as the Maughan case (Blog here) has reminded us all that assumptions are often the errors we don't realise we are making, the NI Court of Appeal now tells us we would be wrong: when Art 2 is engaged there can be a burden of proof in an inquest –  one to be discharged by the state.

Coroner for the Birmingham Inquests (1974) v. Hambleton & Ors. [2018] EWCA Civ 2081 (judgment here)

On the evening of 21 November 1974 two successive explosions tore through two busy city centre pubs in the heart of Birmingham.  The bombings, thought to be perpetrated by the IRA, resulted in the largest UK mainland peacetime loss of life to terrorism in its time: 21 innocent people were killed and 220 more were injured.

The inquests were opened but adjourned pending a criminal investigation.  The following year, six men were convicted and sentenced to life imprisonment. The miscarriage of justice involving the West Midlands Police that led to the release of ‘the Birmingham Six’ by the Court of Appeal in 1991 is now notorious.  Despite the subsequent police investigations no further convictions have followed and the perpetrators of these atrocities remain unidentified and unpunished.

Who then was responsible for the deaths of the 21 victims? How did they come to die in these circumstances? Could their deaths have been prevented?  The answers as to what happened for over 44 years ago remain hidden in a metaphorical ‘chamber of secrets’.

The key question is what is the scope of the inquest? Although inquests must not become proxy criminal trials, is the identity of those involved in violent deaths properly within the scope of an inquest?

Whilst some of the obstacles beyond the trapdoor will be navigated in the forthcoming inquests, following the recent decision of the Court of Appeal it now seems that the door that might lead to the final secret, the naming of the evil-doers, is not to be unlocked.

R (Allman) v HM Senior Coroner for Liverpool and Wirral.  CO/3230/2018 decision here 25.9.18

The short and desperately tragic life of Alfie Evans, and his parents’ heart-rending fight to have him transferred to Rome for continuation of his life sustaining treatment, has recently been fully played out in the public arena.   

The public hearings in the High Court[1] and the four appearances in the Court of Appeal[2] were not only all open to the public but the details were widely reported throughout the print and digital media.  On two occasions the family sought permission to take the case to the Supreme Court[3] and the European Court of Justice[4] but on each occasion those applications were dismisssed.  Those hearings were on paper without any oral submissions but once again the determinations were made public.

The relevant clinical information and extracts of the various expert opinions relied upon by the Courts at each stage are set out in the judgments.  They each confirm the unanimous agreement between all of the medical experts involved – including specifically all of the experts instructed by the family – as to the catastrophic and untreatable, progressive, neurodegenerative condition from which Alfie suffered; there can be no question that Alfie’s death on 28 April 2018 was the result of a naturally occurring condition. 

Against that background it is difficult to understand what more about the facts of Alfie’s death might be learned by those who have since called for an inquest to be held. Unsurprisingly, a judicial review claim challenging the decision of the Liverpool Senior Coroner that an inquest was not required in law has now been considered “totally without merit” in the High Court.

(1) Diane Hopkins & (2) Frances Ryan v HM Coroner for Swansea and Neath Port Talbot [2018] EWHC 1604 (Admin) Judgment here.

This was a straightforward application of the High Court’s power under s13 Coroners Act 1988 to quash the determinations and findings made at an inquest and order a new one, in the light of new evidence.  But the facts make surprising reading and reveal important lessons for coroners.

Mrs Pokoyski was an 85 yr old care-home resident. After a series of strokes left her paralysed she required a puréed diet. Her family were concerned that she was often being inappropriately fed in a reclining position so causing her to choke. One day she was said by care staff to have suffered a ‘bad episode” of vomiting and aspirated vomit; she became ill, struggling to breathe; she was taken to hospital but died a few days later.

Following a post-mortem examination a consultant histopathologist, Dr Thomas, gave the cause of death as “aspiration pneumonia with locally advanced carcinoma of the lung”. However, at the inquest Dr Thomas changed his opinion. Having heard the factual witness evidence he said he now wasn't clear if choking had occurred and that the food material he saw in the lungs might have come from the stomach rather than from aspiration. Dr Thomas now gave a different cause of death - pneumonia caused by lung cancer - which the assistant coroner accepted as part of his conclusion.

However, the deceased’s daughters had legitimate concerns about how their mother had been fed and and so after the inquest obtained an independent expert pathologist’s opinion. Professor Soilleux gave a damning analysis of Dr Thomas’s evidence. Not only had the original cause of death been correct, but the deceased had died from the worst aspiration pneumonia this expert had ever seen under the microscope.

R (Maughan) v HM Senior Coroner Oxfordshire and others [2018] EWHC 1955 (Admin) 26 July 2018 judgment here.

In a roller-coaster judgment the High Court has revolutionised the approach to the conclusion of suicide in the coroner’s courts and has determined that whether the deceased died as a result of suicide is to be determined on the civil standard of proof - on the balance of probabilities.

Judgments such as this are an extremely important reminder to all lawyers of the dangers of making the assumption “it must be right because that’s how it has always been”. Applying the doctrine of stare decisis means the Court would doubtless now say to us all that "whatever you have all been assuming was always the case, you were actually always wrong".

The Claimant submitted that decades (if not centuries) of case law had established that a verdict of suicide at an inquest could only be returned on the criminal standard of proof; Leggatt LJ and Nicol J, however, found that the authorities simply did not bear this out.

The findings of fact and conclusions can be viewed and downloaded here.

HH Peter Rook QC has today handed down his findings of fact and conclusions in respect of the inquest into the death of Private Sean Benton, a trainee soldier, at Deepcut Army Barracks on 9 June 1995.   

He has concluded that Sean died as a result of suicide when he shot himself with a SA80 rifle causing five wounds to the chest. He has found that no third party fired any shots during the incident that led to Sean’s death.

The initial inquest into Sean’s death held a month after his death lasted less than a day and also came to a verdict of suicide. However that inquest was overturned by the High Court in October 2016 when a fresh inquest was ordered.  

The second inquest, commenced in February 2018 and was held to, in part, satisfy the state’s obligations under Art 2 ECHR to proactively investigate certain deaths.

Having heard evidence from 172 witnesses over 40 days of court sittings HH Peter Rook QC has provided narrative describing the circumstances in which Sean came by his death.

Having considered psychiatric expert evidence the judge has concluded that Sean Benton had an undiagnosed evolving Emotionally Unstable Personality Disorder which meant that he would have had great difficulty coping with significant disappointments and stressful life events. On 8 June 1995 Sean had learnt that an application was being made for his discharge from the army, and, profoundly affected by this decision, Sean decided to take his own life.

R (Adath Yisrosl Burial Society and anor) v HM Senior Coroner Inner North London (Costs) EWHC 1286 (Admin) (25 June 2018) Judgment here 

In the closing chapter of a case that has attracted wide media comment, the Divisional Court has now considered whether costs should be awarded against the North London Coroner, whose ‘cab rank’ policy for addressing the administration of deaths in her area, challenged by religious groups who considered that it amounted to indirect discrimination, was quashed in April.

In the substantive case, discussed here, the court held the Senior Coroner’s policy to be irrational and unlawful. She had wrongly fettered her discretion to expedite deaths where there was a particular need or religious imperative to do so.

The remaining question, therefore, concerned costs. In particular, whether the court should follow the general rule in CPR 44.2(2)(a) that in civil actions, including applications for judicial review, the unsuccessful party be ordered to pay the costs of the successful party, notwithstanding that the Defendant was a judicial officer.

As the Court of Appeal has previously made clear in Davies[1], although the award of costs is discretionary, the fact that a coroner loses a case as a Defendant is an insufficient basis, in and of itself, on which to make an adverse costs order against him or her.

The fact that a coroner loses a case is an insufficient basis, in and of itself, on which to make an adverse costs order against him or her.

R (Parkinson) v HM Senior Coroner Kent, Dartford and Gravesham NHS Trust and Dr Hijazi (Interested Parties) [2018] EWHC 1501 (Admin) Judgment here (15 June 2018)

In a tour de force judgment, that deserves plaudits for its several pages of lucid exposition of the application of Art 2 in respect of deaths associated with medical treatment, the Divisional Court have re-affirmed that the Art 2 investigative obligation will not be engaged if what is being alleged amounts to no more than medical negligence by healthcare staff.

Although Art 2 rights could be infringed if an individual’s life is knowingly put in danger by the denial of access to life-saving emergency treatment, the state’s Art 2 obligations do not extend to circumstances where a patient is considered to have received deficient, incorrect or delayed treatment.

That conclusion is perhaps of little surprise given the very recent and authoritative statement of the relevant principles set out by the Grand Chamber of the European Court in Fernandes v Portugal [1] (see our earlier blog).  Indeed once Fernandes was decided in December 2017 the main part of the Claimant’s judicial review claim was already thoroughly holed below the water line.  Mr Parkinson nevertheless sought to urge upon the Court that, if necessary, it should decline to follow decisions of the ECtHR.

Launching the final torpedo, the Divisional Court made it clear that only in exceptional circumstances would the courts in this country decline to follow the jurisprudence of the European Court of Human Rights. Fernandes was to be followed: and, on the facts, there had been no arguable breach of Art 2.

R (Lyttle) v (1) Attorney General (2) HM Senior Coroner for Preston [2018] EWHC, 25 May 2018 Permission decision here

In a useful reminder of the constitutional position of the Attorney General, this Administrative Court decision has made it clear that should the Attorney General refuse to give a fiat this will be the end of the road for any Claimant hoping to make an application under s.13 of the Coroners Act 1988 for a fresh inquest.

Unlike Judicial Review proceedings, where permission to proceed with a claim is sought from the High Court, applicants hoping for an order for a fresh inquest under s.13 Coroners Act 1988 must first seek permission to proceed (a fiat) from the Attorney General. As with the High Court Judicial Review permission stage, the purpose of the fiat is to weed out unmeritorious or frivolous claims.   But unlike the High Court – where refusal of permission on the papers may be followed by an oral permission hearing -   the Attorney General’s decision, which is always made on the papers, will be final.

The Attorney General is answerable to Parliament, not to the Administrative Court in this respect, hence challenging the fiat decision in the High Court is not only futile but, as in the present case, the applicant also risks having costs awarded against them when the Attorney General inevitably succeeds.

R (Maguire) v Assistant Coroner West Yorkshire  [2018] EWCA Civ 6 (17 January 2018)  Judgment here. 

In a sequel to our earlier blog piece the Court of Appeal have delivered their judgment upholding the decision of Mr Justice Holroyde[1] who had found that the Assistant Coroner had been correct to decline to hear oral evidence from nine children who had contact with the killer of their teacher on the morning of her death, and who had heard his threats to kill and/or knew he was carrying a knife,  but had not revealed this to any adult before the death.

The Lord Chief Justice noted that under the Coroners Act 1988 and its predecessors, a coroner was required to examine such witnesses as appeared “expedient” [2] and whilst the formulation is different in the 2009 Act[3] which simply empowers a coroner by notice to require a person to attend to give evidence or to produce evidence, nevertheless, the change has not affected the basis upon which a coroner’s decision to decline to call or seek evidence may be challenged, which is on the usual Judicial Review grounds.[4]  

In dismissing the appeal on all grounds the Court of Appeal endorsed the Coroner’s approach of balancing the value of the evidence against the potential harm to the pupils of giving evidence.   In this case, given the absence of any relevant policies or rules regarding reporting the presence of knives in school, it was very difficult to see how the proposed questioning of the nine pupils would have any value at all. Exploration of the individual child’s thinking in connection with the decisions he or she made that morning when confronted with knowledge of what the killer was saying and doing was not within the scope of the inquest. The decision not to call these witnesses was therefore plainly rational.