In the matter of an Inquest into the death of Patrick McElhone [2021] NICoroner 1 (here)

The coronial world is still coming to terms with the impact of the Supreme Court decision in Maughan and what it will actually mean for inquests in practice. Even following the additional guidance from the Chief Coroner (here) the twittersphere still reverberates with questions such as how one can be ‘probably unlawfully killed’, whether how inquests are conducted will change if it is now open to return an unlawful killing conclusion in more circumstances, and whether Coroners will be open to judicial review if they fail to use those two words in a relevant case.

Some assistance with how to tread those difficult lines now comes from across the Irish Sea. The McElhone inquest provides a helpful example of how to frame what is (but for a semantic hair’s breadth) an unlawful killing finding within a narrative conclusion without needing to use those precise words.

Indeed, Mrs Justice Keegan has not only provided a tutorial on how to deal with factual findings in an unlawful killing inquest but she also more generally demonstrates how to tell the story of any death in a brief, concise yet comprehensive narrative.   Her verdict is so well worked that one doesn’t need to set out much of the background facts of the case here for the reader to understand what went on.

In the matter of the Inquest into the death of Michael Richard Vaughan [2020] EWHC 3670 (Admin) 16.12.20 (here)

Sometimes within the simplest of cases lies a wealth of useful reminders and lessons for everyone.   This superficially uncomplicated and uncontested application under s.13 Coroners Act 1988 is a treasure trove of learning for anyone who may find themselves seeking a fresh inquest.

The request for a fresh inquest here was well founded, and so one might expect the remedy to have been swiftly achieved.   The deceased had died after a self-administered paracetamol overdose and had left a note that provided evidence of his intent.  Unfortunately, that note was not put before the coroner: had it been her inquest conclusion of ‘misadventure’ would probably have been different.  But, despite the bereaved raising their concerns about the accuracy of the conclusion and the absence of the note on the day the inquest ended, it took more than five years before a fresh inquest was ordered by the High Court 

Chief Coroner’s Law Sheet #6,  13 January 2021 (here)

The new Chief Coroner, HHJ Teague QC, has just published his first legal guidance in the form of  “Law Sheet 6” addressing the impact of the case of R (on the application of Maughan) v Her Majesty’s Senior Coroner for Oxfordshire [2020] UKSC 46 on coronial practiceThese Law Sheets are written to assist coroners with the law and their legal duties, and to provide commentary and advice on policy and practice.

On 13 November 2020 the Supreme Court determined in Maughan that the civil standard of proof is to be applied in coronial inquests for all conclusions that a coroner or a coroner’s jury might return, including unlawful killing. (See our earlier blogs (here and here.) Previously it had been accepted that the ‘short form’ conclusions of unlawful killing and suicide could only be returned if found proven to the criminal standard of ‘beyond reasonable doubt’. However, the Supreme Court brought coronial law into line with a number of other areas of civil law when it held that, as a matter of common law principle, the criminal standard should not apply to any conclusion in coronial proceedings.

Setting that change in its wider context, in 2019 there were fewer than 166 conclusions of unlawful killing made by coroners or juries in inquests, this was half a percent of the 31,284 inquests concluded.  The issue of unlawful killing is likely to feature in relatively few inquest cases. However, when it does arise it will of course be of substantial importance to all involved.

 R (Maughan) v Senior Coroner for Oxfordshire [2020] UKSC 46 (here)

There is perhaps no better example of the judicial development of our common law than Maughan. A case which began with a family member appealing against what they believed was the incorrect application of the civil standard of proof to a suicide conclusion has ended with the Supreme Court determining that not only was the standard of proof correctly applied in circumstances where suicide is a civil finding, but that the same logic also applies to an inquest conclusion of unlawful killing.

There is to be only one standard of proof in inquests and that is proof that the fact in issue more probably occurred than not.

This will no doubt surprise many readers, and perhaps rightly so, as the decision in Maughan is from a divided court: a 3:2 majority concluded that the standard of proof for all conclusions at an inquest  – including ‘suicide’ and ‘unlawful killing’ – should be the civil standard.

Although as one of the dissenting voices, Lord Kerr, has quite rightly emphasised in another setting:[1] the importance of dissent, even when in the final court of appeal, is that it contributes to the transparency of the debate, and far from detracting from the authority of the majority opinion, that opinion, in confronting and disposing of an opposite view, if it has been done convincingly, will be all the more commanding of acceptance as a result.

Chief Constable West Yorks Police v Dyer & Assistant Coroner for West Yorkshire & others [2020] EWCA Civ 1375, 27 October 2020.  Judgment here

Judicial endorsement that Black Lives Matter sends an important message to all.    Whilst our British judges might never be expected to deliver as hard hitting and politicised a judgment as that handed down by the wonderful US District Judge, Carlton W. Reeves, this August in Jamison v McClendon (here) -  which for this blogger comes top of the list of the most powerful first 20 lines of any court's judgment this millennium - the recent decision from the Court of Appeal in Dyer nevertheless sends a clear signal that the racial background of a person who dies after contact with the police can matter when open justice is in issue.

Specifically, the appellate court has determined that when the Coroners Rules require a coroner to consider the test of ‘expediently’ this is to equated with ‘appropriately’ and should include considerations of the wider interests of justice.   For one of the three Lord Justices of Appeal a relevant factor in considering those wider interests can be that the person whose death is being inquired into was a black man who died in the custody of the police.

Rushbrooke v HM Coroner for West London [2020] EWHC 1612 (Admin) 23.6.20. judgment here

With such a huge backlog of inquest cases waiting to be heard and the difficulties of convening inside a courtroom during the current pandemic, the appeal of holding a swifter, documentary only inquest is plain to see.  However, the recent case of Rushbrooke is a timely reminder to coroners that they will run the risk of their findings being quashed if the haste to hold a paper-based inquest results in an insufficient investigation.

R (Skelton) v Senior Coroner for West Sussex and the Chief Constable of Sussex Police & Robert Trigg (interested parties) [2020] EWHC 2813 (Admin)  , 23.10.20 Judgment here

Determining whether Art 2 procedural obligations are engaged at an inquest can be one of the most challenging legal questions in the coronial jurisdiction.  The issue for a coroner is not whether breaches of a substantive Art 2 duty have been made out, but whether such breaches are “arguable”. 

The Divisional Court have made it clear that, when considering arguability, coroners should apply the test in Maguire,[1] asking themselves whether there is a ‘credible suggestion’ that a breach of substantive Art 2 rights may be established after the further and fuller investigation of all the evidence which will be available at a Middleton inquest

Further, should a coroner’s decision be challenged with unqualified human rights in play, the Divisional Court’s role is not to assess the quality of the decision on pure public law grounds but to apply heightened scrutiny, effectively asking itself the same question that the coroner has considered.  Hence in practical terms there can only be one right answer and a rationality challenge collapses into a merits review.

R (Skelton) v Senior Coroner for West Sussex and the Chief Constable of Sussex Police & Robert Trigg (interested parties) [2020] EWHC 2813 (Admin),   23.10.20 Judgment here

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

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

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

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

The Background

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

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

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

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

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