R (Speck) v HM Coroner for York & (1) NHS England (2) MEDACS (Interested Parties) [2016] EWHC 16   

In a case which serves as a reminder that an inquest should not be seen as a substitute for a public inquiry, the Admin. Court has held that, where a coroner conducting an Art 2 inquest decides that a factor could not even arguably be said to have made any real contribution to the death, then there is no discretion, or indeed power, to investigate that issue.    Coroners’ investigatory powers arise from their statutory duty under the Coroners and Justice Act 2009 s.5 and their discretion is limited to investigating only those factors that might arguably have contributed to a death.

It would be “wrong in principle” to “go into issues of policy and resources with which an inquest should not be concerned”.

Today the Chief Coroner published new guidance on Pre-Inquest Review Hearings (PIRHs) and revised guidance on coroner's conclusions (Guidance No.17 (as amended)). 

The newly published guidance on PIRHs reaffirms the guidance already provided in the cases of: Brown v HM Coroner for Norfolk [2014] Inquest Law Reports 91, Shafi v HM Coroner East London [2015] Inquest Law Reports 154 and Fullick v HM Coroner for Inner London North [2015] EWHC 3522. It encourages: PIRHs in complex cases, circulating agendas in advance and, if relevant, advance notification of the coroner's provisional views on the respective issues. 

The amended guidance on conclusions addresses the sometimes hotly contested questions of (1) what, if any, difference remains in law between a non-Article 2 v. Article 2 conclusion (2) whether a non-Article 2 conclusion is permitted in law to be judgmental and (3) is the coroner’s power in an Article 2 inquest to leave to a jury, for the purposes of a narrative conclusion, possible circumstances restricted to only where those findings will assist the coroner in a PFD report? 

Flower v HM Coroner for Devon, Plymouth, Torbay and South Devon [2015] EWHC 3666 (Admin) 16 December 2015

In a welcome clarification of the extent of a Coroner’s powers to re-open an inquest after having decided not do so, the Divisional Court has confirmed that, where an investigation has been suspended pending criminal proceedings, and a Coroner has determined that it should not be re-opened, the Coroner is not functus officio and so can revisit and change their own decision. Indeed the High Court has no jurisdiction to order an inquest under s13(1)(b) Coroners Act 1988 in such circumstances. 

There had been no inquest and hence there were no inquest findings to quash.

Re Jordan's Applications for JR - Delay & Damages [2015] NICA 66

From the inquest that just keeps on giving a further judgment of the Northern Ireland Court of Appeal (‘NICA’) has been published concerning the award of damages under the Human Rights Act as compensation for the continued delays in bringing to a conclusion the (still unfinished) inquest into the death of Pearse Jordan who was shot by an RUC officer on the Falls Road in 1992.

“The investigation into the death of a close relative, impacts on the next of kin at a fundamental level of human dignity. It is obvious that if unlawful delays occur in an investigation into the death of a close relative that this will cause feelings of frustration, distress and anxiety to the next of kin”. Stephens J

A huge number of legal decisions, including more than 25 Judicial Review applications have already arisen from the procedural inadequacies in investigating this death. In 2001 an award of £10,000 as compensation for the delay up to that point was made by the European Court in Strasbourg, which called into question whether the Northern Irish inquest system was, at the relevant time, structurally capable of providing for both speed and effective access for the deceased’s family. 

R (Fullick) v HM Coroner for Inner London North [2015] EWHC 3522 (Admin) 3 Dec 15

Susan Jones died after falling ill at a police station after she had attended the station voluntarily as a witness.  An alcoholic, homeless and on methadone, she was vulnerable and police statements made it clear that the officers felt they owed her a duty of care: as the Chief Coroner put it, “at the very least she needed looking after”. Having given an interview, Susan was waiting for a specialist team to attend.  While waiting she placed her head on the table and appeared to fall asleep, being heard snoring. She was left for some time, checked once, but not roused. Nearly two hours later, officers realised she was not breathing. An ambulance was called and CPR commenced, but she died in hospital just over a week later.

The Coroner’s initial decision not to hold her inquest with a jury was overturned by the High Court, comprising the Chief Coroner and McCombe LJ.

‘Reason to suspect’ is a low and objective threshold: suspect’ means suspicion: ‘a state of conjecture or surmise.’

Jones v HM Coroner for Gwent and others [2015] EWHC 3178 (Admin) 5 Nov.15

The Divisional Court this week made clear the limits of s.13 Coroners Act 1988 when seeking to overturn and inquest.  Where Judicial Review is the correct vehicle to challenge the decision of a Coroner then the failure to bring such a claim in good time should not be circumvented by an application for a fresh inquest under s.13.

Elberte v Latvia ECtHR App.No. 61243/08 13 April 2015

Next month the Human Transplantation (Wales) Act 2013 comes in to force. Described as the most significant piece of legislation passed by the Welsh Assembly, it will make Wales the first UK country to introduce a ‘soft opt-out’ system for organ and tissue donation. From 1 December 2015 a deemed consent system will operate for organ donation where the presumption will be that people aged 18 or over, who have been resident in Wales for over 12 months, want to donate their organs at their death, unless they have specifically objected.  

This Act has laudable objectives and is anticipated to save countless lives through a 25% rise in the availability of organs for transplant.  

However, those who favour an opt-in system warn of the excesses that can happen if state control and oversight of such a system is lax. Such risks were shown in stark detail in a recent European Court of Human Rights decision involving Latvia, where shocking abuse of a ‘presumed consent’ system was revealed. 

Smith v HM Coroner for Cornwall (2015) 22/10/2015

The important role a coroner’s inquest has to play in elucidating factors relevant to the death in a way that might then allow for the greater protection of the wider public is exemplified by this recent decision of the Divisional Court.  Inquests into two deaths from carbon monoxide poisoning were overturned where full information regarding the knowledge and correction of a design fault in the gas cooker thought to be responsible had neither been available nor explored.

Serjeants’ Inn Chambers recently hosted an evening with Sir Robert Francis QC to discuss and reflect upon the impact of the Duty of Candour, as recommended in the 2013 Francis Report, upon practice in a variety of healthcare areas. Cecily White and Paul Spencer considered the impact in the Coronial jurisdiction of the rather snappily named “Regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014”   (ie the Duty of Candour regulations).  Their paper, reproduced here, is summarised below.

Wilson v HM Coroner for Birmingham and Solihull [2015] EWHC 2561 (Admin)

“Fairness in an inquest must be fashioned in an environment where there are no pleadings and in which those given leave to appear as interested persons do not have a case to put. The evidence at inquests often takes an unexpected turn and calls for a degree of flexibility in the procedure to be followed as a consequence. The rules of evidence applied in criminal and civil proceedings do not apply. Questions of fairness to those involved in inquest proceedings must be judged against all these essential features and also in the context that the statutory scheme prohibits a finding of criminal liability on the part of a named person, or of civil liability” 

Burnett LJ

Mr. Wilson, a consultant cardiothoracic surgeon, applied for judicial review of part of the coroner’s conclusions in relation to the deaths of three of his patients having undergone cardiac surgery at his hands.