The Grenfell Tower fire shows the need to give coroners' recommendations more teeth.

On 28 March 2013 the coroner, after verdicts were returned on the deaths of six people in Lakanal House in 2009, made important and potential life saving recommendations - see for example bit.ly/2s85JZL . (These were made under then rule 43 - now the Coroners (Investigations) Regulations 2013 reg 28 and 29).

R (T) v HM Senior Coroner for the County of West Yorkshire [2017] EWCA Civ 318  judgment here

A young woman arrived at A&E with her mother. They were carrying a shoebox. Inside the shoebox was the body of a baby girl.

The baby’s mother, aged 19, had kept her pregnancy a secret and delivered the child alone, in her bedroom six days earlier. She said she never heard a cry and did not know whether the baby had been born alive. She hid the body in a shoebox under the bed. Three days later her mother had discovered the box. The women then kept the events from other family members and waited out the weekend before taking the body to hospital.

Examinations by a pathologist and specialist neuro-pathologist left the death unexplained: there was no identified natural disease or injury. Nor could they decide whether the baby was alive at birth. The CPS reached the view that there was insufficient evidence to charge anyone with a criminal offence. The woman’s initial allegation that her conception had followed a rape was withdrawn after police investigations revealed a consensual sexual relationship.  

When the Coroner proposed to hold an inquest into her baby’s death the young woman brought a case to the High Court, arguing that the Coroner had no such power and that her identity should be kept anonymous. She lost decisively on both counts.

"the conduct of the Claimant was not in any sense a private matter” 

Shaw v Leigh Day (A firm) [2017] EWHC 825 QB (judgment here)

Attention family representatives! Absolutely nooo pressure at all, it's just that if you don’t get your client the closure they want out of an inquest, now you can be sued for damages for causing them distress. That is the effect of this recent High Court decision.

The tweetie-birds-round-head inducing litigation saga is set out in more detail below. In a nutshell, Mrs Shaw's elderly father had a cardiac arrest following complications of a trans aortic valve procedure (TAVI). She instructed Leigh Day, one suspects on a private basis (although this isn’t clear from the decision), and there was an Article 2 inquest at the end of which the jury concluded that the death was an unintended result of a therapeutic procedure and made no criticisms of anyone.

The inquest left Mrs Shaw dissatisfied and, so far as she was concerned, lacking answers to key questions. Even though there has been since been a successful negligence action against the hospital and the surgeon, the High Court has now cleared the way for her to claim £5,000 for mental distress from Leigh Day caused by what she says is the poor job they made of getting disclosure and representing her at the inquest.

R (Duggan) v Asst Coroner North London and (1) Metropolitan Police Commissioner (2) Serious Organised Crime Agency (3) IPCC (4) DS Belfield (5) DC Faulkner (Interested Parties)  [2017] EWCA Civ 142 (judgment here)

Mark Duggan’s fatal shooting by Metropolitan Police officers gave rise to widespread public disorder across the country. The inquest jury’s finding that the cause of death was “lawful killing” has, unsurprisingly, remained matter of public debate and given rise to several legal challenges.

The Court of Appeal has now held that:

“There is nothing in either domestic legislation or the jurisprudence of the ECHR which requires that, in every case where a self-defence justification is raised at an inquest, a specific direction must be given to the jury that, in deciding whether a belief of imminent threat was honestly and genuinely held, the reasonableness or unreasonableness of that belief from the viewpoint of the person claiming the defence is a relevant consideration.”

R(Ferreira) v HM Senior Coroner South London [2017] EWCA Civ 31 (26 January 2017) (judgment here)

Reading about the 1888 Victorian Railway Commissioners case when studying for the bar I always wondered what it might look like if the ‘floodgates’ so fiercly guarded by judges in those old judgments were actually prised open. Well now I know.

The combination of the Mental Capacity Act ‘Deprivation of Liberty Safeguards’ and the Supreme Court’s 2014 Cheshire West[1] decision have produced a legal tsunami that has deluged the Court of Protection. This has been followed very closely by a smaller but equally damaging tidal wave that inundated Coroners’ Courts once holding an inquest into the death of any person who was the subject of a MCA DOLS authorisation was deemed mandatory.    

If the appellant had won this present case, and a death in a NHS hospital due to the physical illness of someone lacking capacity had amounted to a death when deprived of liberty (so in state detention), and therefore required a jury inquest, then the already swamped Coroners Courts might have finally submerged.  

Happily, however, the watery metaphors can now dry up, as a combination of the Policing and Crime Bill (soon to be given Royal Assent) and the Court of Appeal’s most recent common sense judgment in the Ferreira case have firmly rebuilt the levee around the Coroners’ Courts, handing a few sandbags to the Court of Protection at the same time.

Cevrioğlu v. Turkey, ECtHR (Application no. 69546/12) (4 January 2017) (judgment here)

Coroners feeling relief that amendments to the Policing and Crime Bill will mean that the burden is about to be lifted from them of conducting inquests after any death of a person subject the Mental Capacity Act DOLS provisions might wonder if their workload will nevertheless increase following this recent judgment of the European Court of Human Rights (ECtHR) that clarifies that the ambit of Art 2 covers failures in the state’s regulatory oversight of private companies’ actions. Where there are arguable grounds to suspect such a regulatory failure that would otherwise have ameliorated a risk of death an Art 2 inquest may now be required.

Where there are arguable grounds to suspect a regulatory failure to ameliorate a risk of death an Art 2 inquest may now be required.

The facts of the case are tragic: in 1998 the applicant’s ten-year-old son, and his friend were found drowned after falling into a 2 metre deep water-filled hole on a construction site where they had been playing near their home. The construction site was the responsibility of a private company, however construction permits had been issued by the Municipality of Antakya which could also issue warning and enforcement notices if unsafe practice was revealed.

When the domestic courts failed to provide a remedy for the applicant’s claim against the Municipality, for failing in its responsibilities for inspecting the work, he applied to the ECtHR for redress. The ECtHR held unanimously that there had been a violation of his substantive and procedural rights under Art 2 ECHR and awarded EUR 10,000 in damages.

R (IPCC) v IPCC [2016] EWHC 2993 (Admin) (25 November 2016) (judgment here)

The value of a Coroner’s inquest in opening up matters to public scrutiny is clearly demonstrated by this highly unusual application by the Chief Executive of the IPCC who, following a searching inquest, brought proceedings against his own organisation to overturn its flawed report into police conduct.

Jordan Begley died following contact with police during which a Taser had been used and he had been restrained. Police officers had been called to his house by his mother, who was concerned that Jordan might become violent. He had been drinking and was upset about having been accused by others of stealing a handbag. His mother said that he had a knife and he wanted to go outside to confront his accusers. A number of officers arrived at the scene and a Taser was used. Once tasered, Mr Begley fell to the floor and was restrained face-down. In the course of bringing him under control, one of the police officers delivered two strong punches as “distraction strikes” to Mr Begley’s back to enable him to be handcuffed. It shortly became clear that Mr Begley was very unwell and despite being taken to hospital, tragically, he died shortly thereafter.

The IPCC report into the incident, which was available to the inquest, had found that no officer had any case to answer for misconduct or gross misconduct. The inquest jury did not agree.

The inquest jury reached a narrative conclusion that was far more critical than the IPCC report, finding that:

  • Mr Begley had died from a stress-induced cardiac arrest;
  • the use of a Taser was “not reasonable”;
  • the length of time for which the Taser was deployed (over 8 seconds) was not reasonable;
  • there was no need for a police officer to have punched Mr Begley twice;
  • the police had not been sufficiently concerned with Mr Begley’s welfare once he was handcuffed; and
  • failings by police officers had materially contributed to the death.

In light of the inquest findings the IPCC reviewed its own investigation and found errors in its own guidance and the independent investigation report

In the face of such public criticism of police actions it was clear that the IPCC report needed to be reconsidered, but the only mechanism to do so was for the Chief Executive to bring judicial review proceedings against his own organization, so as to quash a report and enable a fresh investigation to take place. That claim was opposed by the police officers involved.

McDonnell v Assistant Coroner for West London [2016] EWHC 3078 (Admin) 6 December 2016 (judgment here)

Leo McDonnell died due to a fatal cardiac arrhythmia. At the time of his death he was prescribed nine items of medication including citalopram, amitriptyline, quinine and codeine. To prescribe citalopram alongside some of these drugs was contraindicated and his prescribed daily dose of citalopram was higher than the recommended maximum. There was a factual dispute between the treating doctors and the claimant regarding these prescriptions. In summary the doctors stated that they had explained the serious risk to the heart and risk of death to him in straightforward terms. The claimant’s evidence was that the doctors had spoken in medical jargon and failed to convey that there was a serious risk. Her position was that the prescribing doctors should not have shifted responsibility by asking the deceased to consent to the continuing over-prescription.  

There were two main candidates for the cause of Mr McDonnell’s death. The first was the mixture of medication he was taking and the role of the 15 codeine tablets he had taken on the day of his death. The second was a vaso-vagal event. The Assistant Coroner found that the death was from a combination of both potential causes, citing a “fatal cardiac arrhythmia triggered by a vaso-vagal event in the presence of excessive codeine, together with citalopram, amitriptyline and quinine at levels consistent with prescribed medication.” She concluded the death was by “misadventure”.

Mr McDonnell’s widow was not satisfied with these findings or the narrative conclusion and so applied under s.13 Coroners Act 1988 to quash the inquest. She argued that the coroner was not entitled to have found that an overdose of codeine contributed to death, as this was inconsistent with the post mortem evidence, nor to have found that the deceased had given his consent to the citalopram being prescribed alongside the other contraindicated medication.

Her challenge failed:

"That a different coroner might take a different view of the evidence does not mean that it is in the interests of justice to hold a new inquest.”

Secretary of State for the Home Dept v Senior Coroner for Surrey [2016] EWHC 3001 (Admin) 23 November 2016 (judgment here)

Senior Coroners still smarting from being described as holding "a relatively lower judicial office” by Mr Justice Singh in the Norfolk Coroner v AAIB case last month have now been dealt a second blow by Cranston J when he made it very clear that not only are Senior Coroners, as a category, not among those able to see sensitive material related to issues of national security, but that the Secretary of State can rely upon the assertion of a general policy not to provide Coroners with such material and so does not have to provide any evidence that disclosure to the particular Coroner will in itself result in a real risk of serious harm to national security.

When Alexander Perepilichnyy, a Russian national, died suddenly in November 2012, while jogging near his home in Surrey, the circumstances aroused suspicion in some as to whether he had been unlawfully killed by agents of the Russian state due to his alleged role in helping to uncover a major fraud.

During the course of his investigation into Mr Perepilichnyy’s death, the Senior Coroner had issued requests for evidence directed at the Security Service and the Secret Intelligence Service.   

In an “unprecedented” application the Secretary of State applied to the High Court for an order permitting the non-disclosure of documents to the Senior Coroner in the inquest proceedings on the ground that such disclosure would damage the public interest. 

The Secretary of State had refused to allow the Senior Coroner, who did not have developed vetting (‘DV’) security clearance, to view the original material.  Although the Senior Coroner accepted that there was material which he was not able to review because of its sensitivity; he had appointed DV security cleared counsel who the government agreed could view the information and provide an anodyne gist to him.     The confidential gist was prepared at a level of generality to enable the Senior Coroner to consider the material with his counsel. The Secretary of State then made a PII application in respect of the gist, but the Coroner considered that the submissions made on he behalf in relation to the application were inadequate, as they were not supported by evidence.  The Senior Coroner informed the Secretary of State that he required a PII application by way of a Ministerial certificate; a Ministerial certificate was duly provided however rather than being limited to the gist it covered the entirety of the material which meant that the Senior Coroner was unable to see it, consequently he was unable to determine the PII claim.

The Senior Coroner accepted that he could not now determine whether the PII claim was properly made because he needed to see the disputed material in order to conduct the balancing exercise required.    The question for the High Court was whether that Court should exercise its jurisdiction to consider the Secretary of State’s PII application in the circumstances.

Re JS (Disposal of Body)  EWHC 2859 (Fam) 10 November 2016

Last month saw the three Brexit judges on the front pages, unfairly lambasted by the media just for doing their jobs properly. It’s a shame that the press who seem, on the whole, to rather like this latest Family Court decision, haven’t sought to make Mr Justice Peter Jackson their cover star this month, this time with a huge respect for a judge who has done his job extremely well. In a clear, concise and incredibly sensitive judgment – superbly drafted not only in what it says, but in how he makes inferences about those matters that he doesn't explicitly describe – Peter Jackson J has dealt with what must be one of the most difficult and tragic cases to come before the courts this year.   

The case has been hailed in the headlines as a victory for “the right to be cryogenically frozen” although if the sub-editors had bothered to read this admirably plainly written judgment properly (which you can read here) they would find that Jackson J confirms exactly the opposite.   

There is simply no right of anyone, child or adult, to determine what happens to your own body after you die. Your dead body is not your own property to be disposed of by your will. The decision will always be left in the hands of others.

As an adult you can of course write a will, name your own executors, express your wishes and then hope that you have chosen your executors wisely. Happily, in most cases the people you have nominated will obey your wishes and dispose of your body as you have asked; but if they decide not to comply with your request there is little you can do about it.