Dove v Assistant Coroner for Teesside [2021] EWHC 2511(Admin) 17 Sept 2021 here

This latest Divisional Court lesson on Article 2 ECHR not only provides a helpful summary excursion through the principles to apply when establishing whether the state’s obligations to protect life are engaged (or not) but it also takes the reader back to basics on the doctrine of precedent.

That another coroner elsewhere had determined that Art 2 rights were engaged in very similar circumstances to the present case was not helpful to the Divisional Court when considering whether Art 2 applied to the death now under consideration. The Claimant’s reference to an interim direction of the previous Chief Coroner in the Fishmongers Hall Inquests was also of no avail, given that decisions of earlier coroners are not binding on, or even persuasive, in the High Court. 

In Dove the Claimant drew the High Court's attention to an earlier decision by a different Assistant Coroner in a different part of the country to bolster the submission that the Assistant Coroner for Teesside had fallen into error. The Divisional Court was having none of it.  Mrs Justice Farbey made short shrift of such an approach, pointing out that it did not advance the Claimant’s submission one jot to put a series of conclusions reached by other coroners in a number of different inquests before the Court.  

The principle of stare decisis requires that all lower courts should make decisions consistent with previous decisions of higher courts - certainly not the other way round. The decisions of other coroners cannot be deployed to persuade the High Court (or even a fellow coroner in a different inquest) to tread a new path, rather than to follow established and binding case law on Article 2. When considering whether the state’s duty to protect life is engaged towards people who are not under state control (which was a key issue here) then application of the judgment of Supreme Court in Rabone [1] will be a far more fruitful place to focus attention.

Revised Chief Coroner’s Guidance 17: Conclusions here  & Revised Law Sheet No. 1: Unlawful Killing: here

As the consequences of the Supreme Court's decision in Maughan v HM Senior Coroner Oxfordshire [1] were contemplated in the coronial world,  the Chief Coroner promulgated specific legal guidance on how to tackle the new civil standard of proof for unlawful killing (see Law Sheet 6). However that January 2021 guidance has now been formally withdrawn and replaced with revised versions of the pre-existing guidance on narrative and short-form conclusions and an updated law sheet specific to the unlawful killing conclusion.  

Amendments were needed as before Maughan was determined it was generally understood that the criminal standard of proof applied to conclusions of suicide and unlawful killing.  As the Supreme Court in Maughan has made clear,  there is now only one standard of proof in inquests – the balance of probabilities.

Amendments to Guidance 17 on Conclusions

The revised Guidance 17 on Conclusions, clarifies the position as to that single standard of proof (see §37 see also new §43 with respect to suicide). That single standard means that where previously the jury should have been directed to consider conclusions where the criminal standard applied before those where the balance of probabilities applied (old paragraph 24), the order of precedence is no longer as important. Note, however, paragraph 7 of the new Law Sheet 1 which recommends, because of their “intrinsic gravity”, considering unlawful killing before suicide and either or both before any other potential short form conclusions.

The Chief Coroner has taken the opportunity to reframe Guidance 17 on Conclusions more generally. Gone is the ‘Historical perspective’ section (old paras 13 to 17).

The section explaining the difference between narrative conclusions in Article 2 and non-Article 2 has been re-worded (§21 to §31). New paragraphs 26 and 27 repeat the call for short-form conclusions to be given in most inquests:

  • If the three-stage process is properly followed, there will often be no need for a narrative conclusion.
  • In general, a narrative conclusion should be used only where the three-stage process [….] is insufficient.

We are reminded also that words denoting causation such as “because’ and “contributed to” are permissible (§ 36).

Law Sheet No. 1: Unlawful Killing

This blog has previously identified problematic implications for Coroners applying the balance of probabilities to the elements of relevant offences (see here). The revised Law Sheet now provides the Chief Coroner’s views as to how to resolve these issues.

First, he considers that a finding of unlawful killing which is based on gross negligence manslaughter or corporate homicide is not a conclusion with appears “to determine any question of criminal liability on the part of a named person or civil liability”. Section 10(2) is he says consistent with an unlawful killing conclusion provided the person who is considered to have caused the death is not named. Likewise, it is the Chief Coroner’s view that an unlawful killing conclusion based on gross negligence manslaughter or corporate homicide is consistent with s.10(2) because there will be no express determination that a civil wrong has been committed (see §11).  

Second, the Chief Coroner engaged with the point raised in this blog, that there is a conceptual difficulty in applying the concept of a balance of probabilities to the sixth element of the offence of gross negligence manslaughter. That element is whether the circumstances of the breach were truly exceptionally bad and so reprehensible as to justify the conclusion that it amounted to gross negligence and required criminal sanction

We had previously queried whether this is a question of judgment or a question of fact and if of fact how the balance of probabilities is applied. The Chief Coroner’s view is that it is a question of fact, as the question for the jury is not whether the negligence was gross and whether, additionally, it was a crime, but whether the behaviour was grossly negligent and consequently criminal.

The jury or coroner will have to consider “the misconduct was probably grossly negligent enough to be condemned as criminal” as a question of fact, and not one of opinion.

Of course as coroners are independent, they must each make their own mind up about how to apply the case law and this guidance. What does seem likely is that the interpretation of whether actions were probably unlawful will soon be one for consideration by the higher courts.

 

References

[1] [2020] UKSC 46

R (Morahan) v HM Coroner for West London [2021] EWHC 1603 (Admin) 11.6.21 here

Arguments about the application of Article 2 ECHR remain one of the most taxing legal issues in the coronial jurisdiction.  That the European Convention was never intended to be applied as fixed black letter law, but to be an instrument open to judicial interpretation as views evolve as to what ‘Human Rights’ actually entail for the society of the day, means that the types of cases that might engage the Art 2 investigative obligations in coroners’ courts will never be fixed.   It is, therefore, unsurprising that cases exploring the engagement of Art 2 obligations in inquests seem to make their way to the High Court every six months or so, as one coroner or another ‘takes one for the team’ to help us all understand the current position in law.

Morahan is now the latest “cut out and keep” judgment for anyone wishing to get up to speed on the current state of the law with regard to Art 2 and the scope of the positive operational and the enhanced investigative Art 2 duties. In Morahan the Divisional Court has very helpfully examined Art 2 in detail, providing a summary guide to the recent key cases on Art 2 in the context of the death of a voluntary psychiatric in-patient from an accidental overdose when on approved leave from hospital.

R (Wandsworth) v HM Senior Coroner for Inner West London [2021] EWHC 801 (Admin) (here)

Most coroners won’t see any need to take extra care round a swimming pool when a Nicholas Cage film is about to be released, even given the clear relationship between one of Hollywood’s most prolific star’s film appearances and the number of people who die by drowning (see here). Nevertheless, in this recent Judicial Review case, the High Court have felt the need to remind coroners of the important principle in coronial law (sadly without any reference to Mr Cage) that correlation is not proof of causation.  

The fact someone lived in a place where asbestos was present was not sufficient to establish that their fatal mesothelioma was caused by inhaling fibres from that asbestos.   More is needed before a Coroner can be satisfied on the balance of probabilities, that a potential exposure to asbestos has more than minimally, negligibly or trivially contributed to a death.  That the deceased was possibly exposed to asbestos at a particular address, and that asbestos is very often the cause of the mesothelioma that killed them cannot justify an inquest conclusion that asbestos exposure caused the death.

Farrell v Senior Coroner North East Hampshire  [2021] EWHC 778 (Admin) 30.3.21 (judgment here)

In this strongly worded dismissal of a s.13 application the Divisional Court (including the new Chief Coroner) were perhaps signalling to Coroners that, whilst there may be an understandable wish to placate the bereaved,  detailed consideration should be given before lending one's support to an application for a fiat for a fresh inquest.  A fresh inquest cannot be justified simply to allay concerns of a member of the bereaved family, particularly where a reinvestigation would cause unwarranted distress to another.

When a family member raised suspicions of foul play – albeit with no real evidence in support - the Senior Coroner positively supported the application to the Attorney General for a fiat to apply to quash his documentary inquest into a mesothelioma death. [1]  That stance was likely to have been influential in the fiat being given.    

The Divisional Court have, however, now roundly dismissed the subsequent s.13 application on numerous grounds. Not only because of the lack of any evidence of the foul play being alleged, but importantly also noting that:

  • A fresh inquest would cause cost and delay to the coroner's service.
  • It would divert the health professionals involved away from their public service by requiring preparation for and attendance at a hearing.
  • The interests of justice do not require a family member be given a platform to air unjustified suspicions.

 

The principles of open justice and transparency are fundamental to our justice system. They must be cherished and protected as vital to preserve the rule of law.  However, a simple legislative oversight at the start of the pandemic has meant that, whilst most other courts increased their accessibility to the public by giving access via remote video platforms,[1] the Coroners Courts became more closed and secretive. All public, including accredited media representatives, have remained banned from watching any online broadcasts of coronial proceedings over the past twelve months.

This absurd position arose when the hastily passed Coronavirus Act 2020 made provision for four new sections to be inserted into the Courts Act 2003 which allow public participation in criminal, civil and family court hearings conducted by video link,[2] but unfortunately (confirming the view that Coroners Courts[3] are the forgotten relatives of the rest of the justice system) the broadcasting of coronial proceedings was overlooked and so wholly omitted from the Coronavirus Act 2020.[4]  

With a stroke this unintentional oversight has meant that for the past year neither the public nor accredited journalists have been able to watch any inquest proceedings unless they have been able to persuade a friendly coroner to let them walk into their socially distanced courtroom.   Happily, there have now been significant steps taken to correct this position via the Police, Crime, Sentencing and Courts Bill 2021.

R (Grice) v HM Senior Coroner of Brighton and Hove [2020] EWHC 3581 (here)

Will an inquest always be required after a homicide trial when there have been alleged failures by state agents to protect life?  In this Judicial Review case Garnham J gives us the answer by summarising the scope of the requirements of an effective Art 2 investigation and, particularly helpfully, setting out what is not required to satisfy the state’s the investigative obligation.

The Senior Coroner had refused to re-open the inquest into the murder of a woman by her former partner after her complaints of stalking were mishandled by police. There was no question that Art.2 was engaged on the basis of potential breach by the police of their operational duty to safeguard the victim’s life. Furthermore, the criminal trial alone had not satisfied the state’s Art.2 investigative duty.  However, the judge agreed with the Senior Coroner that the European Convention does not adopt a prescriptive approach to the form of the Art.2 investigation, so long as minimum standards are met.  One must look at the totality of the investigations conducted by the state whilst remembering that even the minimum requirements involve a degree of flexibility.

In this case the Art.2 obligation to conduct a prompt and effective independent inquiry with sufficient public scrutiny and sufficient involvement of the next of kin had been met by the combination of the criminal trial, a domestic homicide review and the three other investigations of police conduct. The Senior Coroner was not only entitled to find that these enquiries satisfied Art.2; she was right to do so.

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.