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. 

R (Adath Yisrosl Burial Society and anor) v HM Senior Coroner Inner North London and The Chief Coroner of England and Wales (Interested Person) EWHC 969 (Admin) (27 April 2018)   Judgment here.

This is an unhappy case all round. The silver lining is that the Divisional Court went out of its way to facilitate some public education about that most fundamental and cherished of rights, the principle of equality.  Anyone wanting a crash course in: absolute and qualified rights, justification, indirect discrimination and proportionality and the PSED (the public sector equality duty) should head straight to paragraphs 93 to 143 and make an entry on their CPD form.  But the take away point is this: 

People are different. Treating them equally does not mean treating them the same.

The specific issue was whether the Coroner could and should fast track the administration of deaths of Jewish people or whether religion should be left out of account altogether, so that each death, and family, should await their turn in the coronial queue.

The Divisional Court decided that specific point (in appropriate cases they can and should) and then explained what equality means. We suffer discrimination not only when we are treated differently to someone in an analogous situation but also when, being different, we are not treated differently. We are not all the same, one size does not fit all and if we are to be treated equally, a balance must always be struck.

The Annual Coroners Statistics for 2017 that have been published this month, may not be top of the reading list for many inquest practitioners, however they are always worth a summary glance, as the figures reflect the huge volume of work that Coroners deal with behind the scenes that is often not appreciated when there are more headline grabbing inquests or judicial review cases to be reported.

The key trends (which it is well worth knowing about) are summarised here, along with important, new information about research demonstrating the reliability of non-invasive post mortem examinations by enhanced CT scanning (PMCT) and why greater use of that modality is strongly to be encouraged. 

Summary of the Annual Report 

There were 229,700 deaths reported to Coroners last year. However, the annual number crunching reveals only two notable year on year changes once the impact of DOLS deaths is taken into account: first, a welcome reduction in deaths of those detained under the Mental Health Act and second, a massive increase in the number of non-invasive post mortem examinations conducted.

Key figures

  • 11% fewer deaths reported

  • 18% fewer inquests opened

  • 22% reduction in mental health deaths

  • 120% increase in non-invasive post-mortem examinations.

Lopes de Sousa Fernandes v Portugal (Application no. 56080/13) (ECtHR Grand Chamber, 19 December 2017) judgment here.

The ECHR Chamber judgment in Lopes (15 December 2015) had the potential to expand the situations where a Middleton style “Article 2 inquest” would be required. The Chamber judgment appeared to widen the scope of Article 2 protections to incorporate errors of judgment on the part of health professionals and miscommunication between hospital departments. If poor judgment calls and miscommunications were now to be considered a substantive breach of Article 2 then many hospital deaths would require an inquest fully compliant with Middleton principles. It was perhaps only the unavailability of the judgment in English that held back the flood. [1]

If poor judgment calls and miscommunications were now to be considered a substantive breach of Article 2 then many hospital deaths would require an inquest fully compliant with Middleton principles.

However, the Grand Chamber of the European Court of Human Rights (“the Court”) has now reversed the previous Chamber judgment and held, by a 15:2 majority, that there was no violation of the substantive limb of Article 2 in respect of ‘merely’ negligent hospital treatment.

The judgment provides important clarification on substantive Article 2 claims and would appear to limit such claims in the healthcare sphere to cases of a denial of life-saving treatment caused by systemic/structural issues rather than individual error. The Court has now made clear that “mere error or medical negligence” is not sufficient.[2]

The case however remains of relevance for inquest practitioners as the Court upheld the finding that there had been a violation of the procedural limb of Article 2 owing to the delay in implementing the extant state structures to investigate the death.

R (Silvera) v Senior Coroner Oxfordshire [2017] EWHC 2499 Admin. 20.10.17  (decision here)

Inquests play an essential role in ensuring public accountability when our hard pressed public services don't always manage to get things right.   That inquests allow for the full involvement of the family when publicly exploring the facts and coming to the understanding of what has happened is one of their most important features. The independence of the Coroner (or jury) when reviewing the circumstances of a death is crucial; as is the Coroner’s power to then notify any concerns to those who can take steps to make things safer for us all in the future.

Against that background it should, perhaps, not even need the added impetus of Art 2 ECHR to understand why some deaths are crying out for a publicly held independent investigation. Whilst the coronial jurisprudence around Art 2 ECHR and the investigative obligations that flow from it can be complex, it is hard for the outside observer to discern why the Senior Coroner in this present case was not even persuaded that Art 2 ECHR was engaged, let alone that an inquest was then required to satisfy the State’s investigatory obligations.  

The facts

The bare facts are that a woman, who all accepted was mentally unwell, had absconded from a psychiatric hospital by jumping out of a window just one day after the decision had been made to change her status to that of an informal patient (and so not continue with her detention under the Mental Health Act 1983).   The woman had also absconded the previous month, and at that time the staff had told police the woman was “very unwell” and “at risk of causing violence”. On this second occasion the police were again asked for assistance to return her to hospital and were told that the staff believed the patient “might do something” and “may be holding [her mother] hostage”. Yet she was nevertheless left in the community un-assessed for a further five days. At some point during that period she killed her mother.    

Engaging Art 2

Even a cursory reading of Rabone and Sargantson[1] would suggest it was at very least arguable that the state’s Art 2 obligations were engaged here, given the involvement of these two public bodies - and particularly as an internal NHS inquiry had already pointed to a number of shortcomings in the patient’s care and risk assessment.   Indeed the Chief Coroner, who gave the decision of the High Court, seems to have felt it was so abundantly clear that Art 2 was engaged that he didn't even bother wasting any space in his judgment explaining why[2]

The Senior Coroner, however, did not accept that Art 2 was engaged and further, even if it was, did not agree that resuming the inquest was required in the context of a guilty plea and the public bodies’ having already conducted their own investigations.

As the Chief Coroner has now made abundantly plain: where there has not already been an independent investigation of a death that has allowed for the proper involvement of the family and with a sufficient element of public scrutiny, then the inquest must be the vehicle to achieve this.

R (Dr Siddiqi and Dr Paeprer-Rohricht) v Asst. Coroner for East London.  Admin Court  CO/2892/2017 decision 28 Sept. 2017 (decision here)

Making a report that may prevent future deaths (a ‘PFD report’) under reg. 28 of the Coroners (Investigation) Regulations 2013 is an important but often misunderstood coronial power.

The issuing and receipt of a PFD report entails no more than the Coroner bringing some information regarding a public safety concern to the attention of the recipient. A PFD report is not punitive in nature, despite some interested persons construing it as such. It engages no civil or criminal right or obligation on the part of the recipient other than the obligation to respond to the report in writing within 56 days. The nature and content of that response is wholly a matter for the recipient.  In their response the recipient can choose to agree or disagree with matters within the report or rebut any determination of the facts that is expressed by the Coroner. The recipient can object to or accept the invitation within the PFD report to take action, and could even choose to respond by expressing the view that no action is required to allay the Coroner’s unwarranted concerns.

The appropriate remedy for those wishing to take issue with the content of a PFD report is to respond to the report.

 Against that background it is unsurprising that a recent attempt to Judicially Review a Coroner’s decision to issue a PFD report has fallen at the first hurdle

Re HM Senior Coroner for North West Wales (2017) EWHC (Admin) 4 October 2017 (no transcript yet available) 

When unidentified human remains were found on a Welsh beach in 1994 the cause of death was unascertained: the inquest returned an open verdict with the deceased unknown. However, tissue samples had been retained and advances in forensic science had recently allowed a DNA profile match to the brother of a woman who had disappeared in 1994. The circumstantial evidence strongly indicated that the deceased was his missing sister.

It must have been beyond question that these new facts and evidence made a further inquest that would now properly identify the deceased both necessary and desirable in the interests of justice.   The problem facing the Senior Coroner was that because an inquest had already been held the coroner was “functus officio” and had no power to quash the original inquest.

The cumbersome mechanism under s.13 Coroners Act 1988 for quashing a previous inquest now had to be followed to allow a fresh investigation to commence under s.1 CJA 2009. This involved the Coroner first making an application to the Attorney General, waiting for his authority to be given (under a fiat) before an application to the High Court under s.13(1)(b) could be made.

 Is it seriously considered that a Senior Coroner’s own application will ever be unmeritorious? 

It is no surprise that the A-G, followed by Lord Justice Treacy and Mr Justice Dingemans all readily agreed to a fresh inquest being held. Perhaps the only surprise is that it required a Divisional Court of two judges to consider the matter.

 This case is yet another example of time and money being unnecessarily spent before the obviously correct thing can be done. A s.13 application to the High Court can only be made “by or under the authority of the Attorney-General”. It is not unknown for obtaining that permission to take over 4 months in the most simple and clear of cases.

Permission stages in court applications, such as the fiat required here, are of course a good mechanism for weeding out frivolous, ill-founded or unmeritorious applications at an early stage. But is it seriously considered that a Senior Coroner’s own application will ever be unmeritorious?  The delay inherent in the fiat process merely extends the waiting for families and increases administrative costs for coroners.  The time must have come for revision of the legislation so that a Senior Coroner no longer needs the Attorney General’s permission to make a s.13 application.

R (Heinonen and Sawko) v Senior Coroner for Inner South London [2017] EWHC (Admin) 1803 (judgment here)

It is often distressing for a bereaved family to contemplate their loved one being subject to a post-mortem examination, even in the context of a wish to have the cause of their death explained.  When the resultant autopsy report contains an inaccurate physical description of the deceased, that thereafter remains unexplained, it is unsurprising that a family would seek further investigation of the matter by the Coroner.

However, in a case that provides a clear reminder of the high hurdle claimants must surmount to establish that a coroner’s decision is unreasonable (in the Wednesbury sense), the Administrative Court has upheld this Coroner’s refusal to open an investigation under s.1 CJA 2009, even though significant discrepancies between the description of the body examined and the deceased’s physical characteristics remained unexplained and further avenues that might have more firmly established the identity of the body had not been explored.

“I hope that an apology and some explanation as to how it came about will be forthcoming, I have no power so to order. I can merely express a hope that that will happen in due course”.   Andrews J

R (Maguire) v Assistant Coroner West Yorkshire [2017] EWHC 2039 (Admin) 14 August 2017 (judgment here)

The horrific murder of Mrs Ann Maguire, a school teacher stabbed in her classroom by a 15 year old pupil, justifiably shocked the Nation. Now that William Cornick has pleaded guilty to her murder (and been sentenced to a minimum of 20 years’ detention) Mrs Maguire’s inquest will be resumed; but first the controversial issue of whether some of the school’s pupils tangentially caught up in the events should be called to give evidence at the inquest has had to be resolved.

“The distress of a young witness is not necessarily a reason why that witness cannot or should not give oral evidence.”

Following the murder some pupils had revealed in police interviews what they knew of Cornick’s actions in the period before the killing. These “interviewed pupils” reported how Cornick had at times behaved strangely, making morbid or sick jokes. He had expressed a wish to kill teachers and very shortly before the killing made specific statements about killing Mrs Maguire. Only one pupil had reported this behaviour to a teacher, but by then the murder had just been committed. Most of the other pupils did not take the threatening remarks seriously and so did not report them, assuming he was merely showing off. The one pupil who did take the threats seriously said nothing out of concern that if he did so it may provoke Cormick to attack him. After the killing that pupil had reflected “It’s like I could have stopped it. I did nothing.”

The Claimants (her widower and other members of Mrs Maguire’s family) wanted these “interviewed pupils” called so that the inquest could hear evidence as to the students’ understanding of the school rules relating to weapons in school and whistleblowing, and, for those who had taken no action, to explain why this was. The Claimants emphasised they did not seek to ascribe any blame or criticism to any pupil, but rather wished to minimise the risk of any similar horror occurring in the future. They wanted the inquest to explore lessons to be learned as to how children might be encouraged and supported to share concerns with trusted adults.

R (Scarfe & Ors) v Governor HMP Woodhill & SoS Justice [2017] EWHC 1194 (Admin) (23 May 2017)  judgment here

HMP Woodhill has achieved the unenviable status of having the highest rate and the highest number of self-inflicted deaths of any prison in the entire prison estate. Thirteen men have died there since 2013 at their own hand, seven of those in the last year. The eleven inquests that have recently been held in the Milton Keynes Coroner’s Court have produced several critical jury findings and a number of PFD1 reports yet the alarming death rate has persisted.

It is unsurprising then that the families of some of the deceased, believing effective changes have not been made, turned to the High Court for action. They argued that the High Court should use its public law powers to ensure that the repeated failings noted in these successive cases were no longer tolerated.

The Woodhill Prison Governor and the Justice Secretary made it clear that they shared the great concern of the Claimants, the Court and other commentators (such as INQUEST who intervened in the proceedings) about the rate of suicides in prisons generally, and at HMP Woodhill in particular. The difficulty for the Claimants, however, was establishing the extent to which the identified problems at HMP Woodhill were capable of solution by means of their application for an order or declaration from the High Court.

R (Gudanaviciene) v Immigration and Asylum First Tier Tribunal [2017] EWCA Civ 352, 11 May 2017 - judgment here

All humans make mistakes, Coroners included. Fortunately for any Coroner reading this, so long as you are merely human (and not flagrantly improper) and you don't seek to defend your errors, then you should not be ordered to pay the successful applicant’s costs of reversing your poor judgment or bad decision-making.

The Court of Appeal considered whether a judicial body should be ordered to pay the costs of a successful application to judicially review its decision where it took no part in those judicial review proceedings.

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.

The principle of open justice, allowing pubic scrutiny of how citizens come by their deaths, is at the core of the inquest process.  Save in exceptional circumstances[1] Inquests should be heard in open court with the media able to fully report the proceedings.

“The names of those who are born and those who die are rightly a matter of public record.  The fact that someone has died is always a matter of proper public interest and the ability to record it is a normal incident of society.”[2]

Readers will be familiar with Coroners’ powers under Section 39(1) of the Children and Young Persons Act 1933 to restrict reporting of the name of a child who is a witness or an IP. However Coroners have very limited alternative powers to protect the vulnerable who are not themselves an IP or  witness at the inquest.  

In exceptional cases, High Court judges have powers to make or extend a Reporting Restrictions Order (RRO) to protect others, such as family members of the deceased, from unwelcome press attention  (see earlier UK Inquest Law Blog post here re an RRO made in the Court of Protection in anticipation of an inquest).

However another often overlooked provision applicable to Coronial proceedings, and used effectively in a recent inquest, is Section 1 Sexual Offences (Amendment) Act 1992.

R (on the application of Secretary of State for Transport) (Claimant) v HM Senior Coroner for Norfolk (Defendant) & British Airline Pilots Association (Intervener) [2016] EWHC 2279 (Admin)


Readers of the UK Inquest Law Blog need no reminding that prior to the Coroners and Justice Act 2009, coroners had no power to order disclosure of any document so that if disclosure was required, an application had to be made to the High Court. The immediate point for the Divisional Court to decide in this case was the correct interpretation of the powers of coroners to require a person to produce documents (paragraph 2 of Schedule 5 of the 2009 Act). 

The involvement of the Lord Chief Justice indicates that there is a point of general importance.

R (Maxine Hamilton-Jackson) v HM Assistant Coroner for Mid Kent and Medway [2016] EWHC 1796 (Admin) (decision 19.7.16 here)


The absence of opening or closing speeches at inquests means that the need for clarity when summing up is all the more important. The jury must know clearly what they need to find as facts in order to justify any conclusion and, as the Chief Coroner has put it:

“Coroners, however well intentioned, should do their best in directing a jury to avoid using language which is not in everyday use, language which may not be clearly understood”. 

So what are an inquest jury to make of being told they need to decide whether or not there was a failure of a prison system or in the operation of a prison system, by “polarising the dichotomy between: is it mandatory to open an ACCT when a particular event occurs or is it mandatory to open an ACCT when the relevant official considers there is a risk of suicide or self-harm?”

Quashing the jury’s response to just one part of the jury questionnaire in this case, the Divisional Court has held that not only was there a misdirection, because the jury could not be clear what they were being asked to decide, but also re-iterated how the meaning of a policy is not a matter of fact to be determined by the jury, but is a question of law to be determined by the Coroner.

R (Tyrrell) v Senior Coroner for Durham & Darlington [2016] EWHC 1892 (Admin)  

(26.7.16 decision here)

 Around two thirds of the 250 deaths in prison each year are from a naturally occurring cause. In a decision that will be warmly welcomed by Coroners, the Divisional Court has now determined that there is no obligation to hold an Art 2 inquest into such deaths unless there are grounds to believe that there was some failure in the healthcare provided by the state.

This case in which the Claimant’s arguments were described as being advanced at a “high level of legal abstraction” is happily a victory for pragmatism and common sense.   

Were it otherwise Coroners would be obliged to conduct a large number of ‘Article 2 inquests’, to no discernable benefit of anyone and despite it being abundantly clear before the hearing that nothing untoward had taken place.

Burke-Monerville v HM Senior Coroner of Inner North London 

Application for urgent relief  High Court: Fri 8 July

The trend of recent decisions in the High Court has been a general reluctance to hear challenges to coroners' procedural decisions prior to the end of an inquest. Whether the proceedings have or have not been substantively or procedurally unfair is an issue that is best determined after the end of the hearing when the totality of the proceedings and the evidence can be considered.

It is unsurprising therefore that this urgent application for an injunction seeking to prevent an inquest going ahead on a Monday morning was refused in an extempore decision delivered at midnight on Friday.   

Bridget Dolan QC and Jamie Mathieson were counsel to the inquest into the death of Private Cheryl James in 1995 at Deepcut Barracks which ended on 3 June 2016.  The judge’s 100 page findings of fact, addressing the circumstances of the death and the culture and procedures at the camp, can be found here.

John Beggs QC and Cecily White acted for Surrey Police.  Paul Spencer of Serjeants' Inn Chambers also represented a medical witness at the hearings.

R (Tainton) v Senior Coroner for Preston and West Lancashire  [2016] EWHC 1396 (Admin) 16 June 2016


The Court of Appeal in Lewis* made it clear that there is a power, but not a duty, to leave to an inquest jury findings regarding non-causative shortcomings which only may have led to or hastened death.  A coroner has discretion to leave to the jury causes of death that are merely possible and not probable.  

However the Divisional Court have now taken an interesting side-step around Lewis by deciding that, in an Art 2 inquest where a shortcoming has been admitted then, even if it is only possibly causative of the death, the jury should be directed to record it.

“Where the possibility of a violation of the deceased’s right to life cannot be wholly excluded, section 5(1)(b) and 5(2) of the 2009 Act should require the inclusion in the Record of Inquest of any admitted failings forming part of the circumstances in which the deceased came by his death, which are given in evidence before the coroner, even if, on the balance of probabilities, the jury cannot properly find them causative of the death.”[74]

V v Associated Newspapers Ltd and others [2016] EWCOP 21

In November 2015 the Court of Protection determined that an adult woman had the mental capacity to decide whether or not to refuse the life preserving medical treatment offered to her.   She exercised her right to autonomy, refused treatment and died.    

Such capacity decisions are made on a regular basis in the Court of Protection (CoP) – however this particular decision in relation to ‘Ms C’1 has attracted perhaps more widespread media attention than any other Court of Protection case before it.  That reporting has been characterised by the Vice President, Charles J, as:

“reporting that engaged the prurient interest of the public in the personal details of the lives of others, rather than the public interest in important issues relating to [the court’s finding of capacity to decide and its consequences].”   

The back-story of Ms C’s life and her personality is clearly of the type that sells newspapers.  Ms C is now know to many as the “sparkling socialite” and pixelated pictures of her have appeared in both the broadsheet and tabloid press with epithets such as “man-eater” and “obsessed with sex” in the accompanying headlines.  

Reporting restrictions were, unremarkably, made at the time of the original CoP case. However, what makes this case unusual is the family’s subsequent application for the press injunction to be continued after Ms C’s death and to cover press reporting from her inquest. 

Inquests often reveal matters that are of concern but which are unlikely to give rise to a risk of future deaths and so fall outside the reg. 28 “Report on Action to Prevent Future Deaths” provisions (the ‘PFD report’).  Yet it is often overlooked that where the duty to make a PFD report does not arise, the coroner still has another tool in their public health kit and may nevertheless draw attention to a matter of concern arising during the investigation by writing a letter expressing that concern to the relevant person or organisation who can act upon it. 

Known as a ‘Paragraph 37 Letter’ such a step is proposed and approved by the Chief Coroner at paragraph 37 of his Guidance No. 5 (Reports to Prevent Future Deaths); yet it is only rarely used. 

Ewing v Cardiff and Newport Crown Court [2016] EWHC 183 (Admin)

Bereaved friends and other members of the public often take notes of the evidence given in Coroner’s Courts.  Whilst Coroners can dictate much of the practice and procedure within their own courts, the recent case of Ewing in the criminal jurisdiction has clarified that it is only in very limited circumstances that restrictions should be placed on observers taking notes in public hearings and that no express permission to take notes is required.

“Although the Court may, for good reason, withdraw the liberty to take notes, the default position is that anyone who attends a public hearing is free to take notes.”

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. 

Thompson v HM Assistant Coroner for Durham [2015] EWHC 1781 (Admin)

Kristian Thompson was 19 years old when he died.   He was a detained patient in a hospital secure unit under s.3 Mental Health Act. On the day of his death he had suffered an episode of incontinence and went to shower. He was found in the shower, collapsed on the floor with the shower running. He did not recover.

At the inquest in November 2012 the assistant coroner returned an open verdict, recording the medical cause of death as "unascertained". The pathologist and consultant neuro-pathologist involved in the post-mortem and the consultant physician who had been involved in Kristian’s treatment post-collapse considered two possible causes of death (sudden and unexpected death in epilepsy (‘SUDEP’) and sudden adult death syndrome (‘SADS’).  In the absence of an ante-mortem diagnosis of epilepsy the doctors were unable to come to any probable conclusion.  However, the pathologist stated that he would alter his opinion on the cause of death if an expert clinician could diagnose epilepsy at any time.

There had been insufficiency of inquiry such that it was necessary and desirable in the interests of justice to hold a fresh inquest

On 20 August 2015 the Lord Chancellor published revised guidance on civil legal aid funding in inquest cases. It takes into account the conclusions of the Court of Appeal in the case of  Letts v The Lord Chancellor [2015] Inquest Law Reports 15,  and now recognises that there are some categories of case in which the mere fact of death gives rise to a possibility of State responsibility and this suffices to trigger the Article 2 procedural duty to conduct an independent investigation.   

The previous guidance had suggested that an arguable breach of a substantive duty had to be identifiable to engage the need for an Art 2 inquest.   It is now made clear that there are certain categories of death where the automatic duty arises whether or not the evidence in the case discloses an arguable breach of any of the substantive obligations.

Senior Coroner for Cumbria v Ian Smith [2015] EWHC 2465 (Admin)

Poppi Worthington, was only 13 months old when she died in hospital in December 2012 having apparently sustained fractures to her leg and other injuries.   Yet despite there clearly being reason to suspect that this was a violent or unnatural death, and an inquest already having been held, none of the facts surrounding her death have as yet been made public.    Poppi’s inquest in October 2014 took only seven minutes to complete; the Coroner returned an open conclusion and found that her cause of death was ‘unascertained’.   It is hardly surprising then that the High Court has now overturned that first inquest and determined that a fresh inquest should be held.

“The Coroner did not give any information about the circumstances leading to the girl’s death. The inquest did not address questions about her welfare, how she was discovered, whether any attempts were made to revive her and whether any public agencies were at fault.” 


This case re-emphasizes the duty of coroners to hold their inquests fully in public no matter how difficult the surrounding circumstances. Moreover, that this case had to be brought by the present Senior Coroner against the previous Senior Coroner brings into question whether there should be some simpler mechanism than requiring a Senior Coroner to, firstly, seek a fiat of the Attorney General and, secondly, make a High Court application under s.13 Coroner’s Act 1988 when he or she seeks to put right obvious shortcomings and hold a fresh inquest.

Dr S v HM Coroner North Yorkshire East  (Admin Court) Judgment 21 July 2015

Coroners sitting without a jury are now encouraged by the Chief Coroner’s Guidance (no. 17) to deliver a ‘summing up’ in which they state orally, in open court, their key findings of fact before recording their formal inquest conclusions.    But what is to be done when the Coroner oversteps the mark and makes unlawful factual findings or comments during this summing up?  

The case of Dr S is one recent example of a successful Judicial Review challenge to a Coroner’s unlawful comments about a witness’ probity.   However another recent case MRH Solicitor v Manchester County Court EWHC [2015] 1795 raises the question of whether there might be an alternative and simpler mechanism for quashing and striking from the record such findings where the inquest conclusion itself is not challenged. 

The CJA 2009 entered the “terrible twos” this week having come into to force on 25 July 2013.   Its birthday gift was the publication of the ‘Second Annual Report of the Chief Coroner to the Lord Chancellor: 2014-2015’, which details the gradual evolution of the Coroner’s Service as a combination of the CJA 2009 and the efforts of the Chief Coroner lead the service (mostly willingly) into the 21st Century.

R (Wiggins)  v  HM Assistant Coroner Nottinghamshire  [2015] EWHC 1658 (Admin) (26 March 2015) 

With the growing popularity of narrative verdicts in the mid-2000’s it had become common practice for Art 2 inquests to conclude with a lengthy jury narrative outlining a multitude of shortcomings by public bodies.   That practice has largely died out: the Court of Appeal’s decision in R (Lewis) v Mid and North Shropshire Coroner [2009] Inquest LR 294 [2010] 1 WLR 1836, and the more recent Chief Coroner’s Guidance no. 17 on conclusions, have significantly curtailed the number of issues that coroners now direct juries to determine at the end of an Art 2 inquest. That there is no longer any duty for non-causative shortcomings to be recorded has led many coroners to only use their power to do so where they require a jury’s assistance to determine disputed facts as a basis for the coroner’s PFD report.

However a looming case might change the practice yet again as permission has recently been given in Wiggins to bring a judicial review claim addressing the question of whether the causation point in Lewis needs to be re-visited in light of the approach adopted to Art 2 liability in Sarjantson v Chief Constable of Humberside [2013] Inquest LR 251, [2014] QB 411.

HM Coroner for the Isle of Wight v (1) HM Prison Service (2) Family of Alvin Bay (dec) [2015] EWHC 1360 (Admin)   1 April 2015

The sad case of Alvin Bay sets out no new proposition of law, but perhaps leads one to wonder whether there should be some mechanism to allow a Senior Coroner (or even the Chief Coroner) to have a quicker and easier procedure to overturn an inquest conclusion when there is a clear need to do so and no-one is objecting to that action.

In a further court judgment in the long running saga of the investigations of the murder of solicitor Patrick Finucane, Stevens J, in the High Court of Northern Ireland, has held that the decision of the British Government not to hold an public inquiry that could examine the complicity of state agents and employees in his murder was lawful.

"The killing involved the most conspicuously bad, glaring and flagrant breach of the obligation of the state to protect the life of its citizen and to ensure the rule of law."

Stephens J: Finucane’s (Geraldine) Application [2015] NIQB 57