R (Henshaw) v Assistant Coroner for Derby and Derbyshire [2025] EWHC 357 (Admin), 20 Feb 2025, judgment here
As is often said, ‘when things go bad, they arrive in threes’. And when three things do arise you really wouldn’t want them to be in a case which was already (as Mr Justice Jay remarked) “…a difficult case that would have challenged even the most experienced of coroners”:
However the bad tidings for the Assistant Coroner in these Judicial Review proceedings might helpfully allow other coroners to learn how:
- Not to direct a jury that they must first consider returning a traditional short form conclusion before returning any narrative;
- Not to overlook the decsion in Tainton[1] when dealing with admitted failings; and that
- If you do refuse to call a witness, make sure it is for the right reason.
What inquest lawyers should also note is that the approach of the High Court to re-running a complex inquest is grounded in pragmatism. Even if three things do go wrong, one does not always a need to hold a fresh inquest to put them right. Here the jury directions had been unclear and the Claimant achieved a declaration validating two of her other complaints, but none of these slip-ups were significant enough to require the original inquest to be quashed.
Background
Georgina Henshaw was found unresponsive in her cell at HMP Foston Hall having suffered a sudden cardiac arrythmia. The prison healthcare’s emergency response was unable to save her life. Her family considered more should have been done to ensure Georgina’s anti-psychotic medication had been properly monitored in prison, given that her medication was (rarely) associated with an increased risk of irregular heartbeat which can in turn lead to fainting and even sudden death.
During a 6-day Article 2 compliant inquest that issue was fully explored. The inquest jury heard evidence from two pathologists and a Consultant in emergency medicine who agreed that the anti-psychotic medication prescribed by the prison GP, could cause adverse symptoms leading to cardiac arrest. The prison healthcare staff had failed to adequately monitor whether Georgina had been experiencing possible side effects of her medication, by conducting ECGs and blood tests. However, the experts could not determine whether any such symptoms had caused Georgina’s death.
Georgina’s community GP records had contained a warning against continuing her anti-psychotic medication without a review by a consultant psychiatrist. However the compacted version of her GP records that was sent to the prison by her community GP did not contain that warning – indeed it was only discovered after the inquest had started.
The prison GP’s evidence was that had he known of the warning he would not have prescribed anti-psychotic medication without a review, but he emphasised there was still a balance to be struck, between allowing Georgina to have the anti-psychotic medication she needed, and the potential for that same medication to give rise to serious adverse symptoms. Anyway it could not be established on the balance of probabilities that the anti-psychotic medication caused the fatal episode of sudden cardiac arrythmia.
The jury also heard from prison officers that Georgina was last observed to be alive on an inspection at around 0810hrs on the day of her death. The officer who performed the next inspection at 0825hrs (captured on CCTV), was unable to recall that inspection at all (it was by now some five years since the death). The coroner mistakenly told the jury when she summed up that he had in fact spoken to Georgina and assumed her to be sleeping.
Prison staff found Georgina unresponsive without a pulse at 0840hrs. A nurse who responded to the emergency call incorrectly inserted an i-gel device (meant to secure Georgina’s airway), obstructing airflow. This meant that had Georgina been alive and recoverable at the time, it would have made breathing impossible and CPR ‘doomed to fail’. However the expert evidence was that even if the i-gel had been inserted correctly, Georgina would probably not have survived.
The challenged decisions
During the course of the inquest, the coroner rejected the family submissions that (i) the community GP should be called to explain the failure to include the medication warning in the records sent to the prison and (ii) that the jury should be directed to record non causative admissions, relating to the failure to carry out ECGs and the incorrect i-gel insertion.
Following an oral summing up the jury were directed that there were two possible conclusions, viz. a short form conclusion of natural causes or a narrative conclusion and told that they must consider returning natural causes first. The jury found it was impossible to determine the time Georgina suffered her cardiac arrest, save that it was between 0810hrs and 0840hrs, and so recorded ‘Natural Causes’ in Part 4 of the ROI, alongside some substantive findings in Part 3 of the Record of Inquest, where they noted the i-gel device was inserted incorrectly and had Georgina been alive, this would have prevented her from breathing.
The Judicial Review Claim
When a letter of claim arrived seeking a fresh inquest, the Coroner’s woes were added to by the discovery that no audio recording was available due to a failure in the court’s recording equipment. The family and coroner were unable to provide a sufficient note of the hearing for agreement. The judge described the coroner’s own notes of her summing-up to the jury as ‘sub-optimal’. Considering that ‘either the evidence was unclear or her summing-up was unclear, or both.’ Although he recognised that the summing-up as actually delivered orally to the jury may well have been better.
The thrust of the family’s application for the inquest’s Conclusion to be quashed and a fresh inquest ordered, was that the Coroner had:
- wrongly directed the jury to consider only two possible Conclusions: Natural Causes and a Narrative, in that order;
- declined to leave admissions to the jury, regarding non-causative healthcare mistakes (namely, failing to undertake ECG and blood tests and/or failing to heed a warning not to give anti-psychotic medication without a review); and provided insufficient reasons for that decision; and
- rejected the family’s submission mid-inquest, to call a community GP witness to clarify a non-causative issue.
The coroner adopted a neutral stance to the application, with the family and Coroner each agreeing not to claim costs from the other, regardless of the outcome of the application.[2]
Wrongly directing a short form conclusion of natural causes should take precedence
The family’s primary argument was that the jury should have been permitted to consider a short form conclusion of ‘accidental death’ related to the i-gel insertion. The coroner’s legal directions on conclusions, in so far as they were available, were not in, the judge’s view, particularly clear or easy to follow. “They contain legal language and references that would make little or no sense to a jury. For example, the references to “Article 2” and to “Galbraith/Galbraith plus” could not, without more, have meant anything to them. The directions contain concepts which are not properly explained. For example, the Defendant did not clearly explain the difference between a short-form conclusion and a narrative conclusion.”
Nevertheless, as the impact of the incorrect insertion of the i-gel was no more than de minimis, the coroner had been correct not to leave ‘accidental death’ as an available conclusion. It therefore did not matter that the jury were (unclearly) directed to consider natural causes: it was the only rational conclusion they could have reached.
Furthermore, when the Record of Inquest (‘ROI’) was considered as a whole the jury’s description of the circumstances, as set out in Box 3, which included reference to the observation timings, the resuscitation and the i-gel error did amount to a narrative which went beyond the two word short-form conclusion in Box 4. As the judge pointed out:
“It was true that the narrative conclusion did not appear under Box 4 but that is a point which went not to substance but form. Had Box 4 contained the wording “see Box 3” there could have been no complaint. In my judgment, the absence of such wording did not matter.”
The incorrect direction to the jury to return a short form in preference to a narrative conclusion had not caused any mischief, as there had only been one short form available on the evidence and the jury had anyway recorded brief narrative findings on the ROI, albeit within Box 3.
Furthermore, as the judge said:
“it would not be right to quash the Record of Inquest in this case to reflect the extremely low chance that a different coroner might direct the jury differently and the equally low chance that the jury might reach a conclusion of accidental death.”
Tainton reconsidered
As for the other admitted but non-causative failure to check for cardiac side effects of the medication: Mr Justice Jay considered the Chief Coroner’s newly published Guidance for Coroners on the Bench and the interpretation of Tainton to be found there:
“The Chief Coroner’s interpretation of Tainton is not that admitted failings must be recorded in the Record of Inquest but that there is a power to do so in circumstances where that failing cannot be established on the evidence to have been causative. In the circumstances of the instant case, it is unnecessary for me to reach a definitive conclusion on the issue of duty versus power, although I would incline to the view that there may be situations where the power effectively translates into a duty because there is only one reasonable exercise of it in public law terms. That may well be the correct interpretation of Tainton, inasmuch as if failings are admitted, there is no possible reason for excluding them from account.”
Here the Coroner had declined to direct the jury to record the admission that the need for cardiac review had been overlooked on the basis that the omission had insufficient causative potency. That had been too narrow an approach. As Tainton had made clear, “possible causes, particularly in the context of admitted failings, are potentially within the ambit of an Article 2-compliant Inquest.” This was an Art 2 case and the admission should have been recorded if the Record of Inquest would otherwise be deficient.
However, just as in Tainton, this finding of a coronial error did not mean a fresh inquest was now required.[3] The High Court judgment now set out the position very fully and recorded the admitted failing publicly and so there was no purpose in quashing the inquest where no reasonable jury could reach more favourable conclusions from the Claimant’s perspective than the judge had just done. The Claimant would be given declaratory relief, but nothing more.
Wrongly fettering discretion regarding calling a witness
The final ground of claim that the community GP should have been called met the same fate. The Coroner had indeed unlawfully fettered her discretion by the way in which she had approached the question. When considering calling a witness to explain why the GP summary sent to the prison contained no reference to the warning not to prescribe anti-psychotic drugs without a psychiatric review the Coroner had not contemplated that possible causes, particularly in the context of admitted failings, are potentially within the ambit of an Article 2-compliant inquest. The Claimant would be given a declaration to this effect. BUT It was well within a coroner’s discretion, had it been correctly exercised, to decide that a GP witness was unlikely to be able assist so many years after the events in question and the issue had no causative potency. Therefore the judge held that it would be disproportionate to quash the inquest on this ground.
Comment
For inquest lawyers, this case provides a clear reminder that Judicial Review is unlikely to deliver a fresh inquest if it is likely that the outcome would not substantially change if the conduct complained of had not occurred. Indeed, the High Court is required to refuse an application for Judicial Review in such circumstances unless there are reasons of exceptional public interest that suggest otherwise.[4] In that regard, the judge here followed the earlier approach in Tainton, giving a declaration but no new inquest.
Mr Justice Jay roundly endorsed Tainton, and where (by way of shorthand) he might be considered to have gone further than Tainton in stating that “if failings are admitted, there is no possible reason for excluding them from account”,[5] it is suggested that it would be wrong to interpret this as requiring admitted failings to be included whatever the circumstances as a matter of course. The judge’s final declarations were not so absolute,[6] rather he noted that the jury should have been directed to consider whether to include such admissions. This is more clearly in line with the detailed reasoning in Tainton itself, namely, there is a requirement to include ‘any admitted failings that form part of the circumstances in which the Deceased came by his death’[7]…. without which the Record of Inquest would be materially incomplete and/or verge on misleading by omission[8]… or would render the [proposed] Conclusion, inadequate to describe properly the circumstances in which the deceased met his death.[9]
In essence it not the mere admission of an act or omission that makes it necessary to record it in an Art 2 case. Rather the coroner must still consider which of the established but non-causative facts are required to properly record the circumstances of this death.
Jury directions
In the absence of an audio recording the Coroner unfortunately had little useful record of the directions the jury had been given on how to come to their conclusion. The Chief Coroners Bench Guidance (here) will be of assistance to coroners hearing Art 2 jury cases as (at §53-59) it explains how to formulate a list of key issues for the jury to consider when drafting their narrative conclusion in a written document they can take with them when they retire.
What this case also makes abundantly clear is that the entirety of the ROI is to be taken into account when considering whether Art 2 obligations have been met. This is of course in line with the 2022 case of Bilski (see our earlier blog here). It matters not whether something appears as a Conclusion in Box 4 or part of the broad circumstancs of the death in Box 3. To nit pick over whether something should appear in Box 4 or Box 3 is an issue of form over substance. This jury could have written “see box 3” under Box 4, but equally the absence of such wording was irrelevant, one just looks at the ROI as a whole.
There is of course no Box for Box 3 or Box 4
The term “Box” is used throughout the judgment, although this terminology is perhaps a misnomer that is a hangover from a time when there were several boxes on the “Inquisition” – the form used under the 1988 Act. The current ‘Form 2’ under the CJA 2009 (which is usually known as the ‘Record of Inquest’) only has one actual box to complete on it, and that is under part 5, where the findings in respect of the registration particulars are recorded.
Missing court recordings
For coroners, this case is also a reminder that in every complex and contentious jury inquest making (and keeping) a reasonably complete written note of one’s summing up and rulings is advisable, just in case the court’s audio recording equipment fails.[10]
Whilst a draft of the coroner’s legal directions was sensibly shared with the Interested Persons in advance of summing up to the jury in this case, the final summing up and legal directions were solely delivered orally, which meant reconstructing exactly how the jury were directed was inevitably challenging in the absence of a transcript. It seems inevitable, that the absence of clearly recorded reasons would have hampered the Coroner in demonstrating the correct principles had indeed been considered by her.
Mr Justice Jay’s finding that the inquest was procedurally flawed due to failing to properly consider possibly causative admissions, seems almost inevitable given the absence of clear reasoning for declining to leave those matters to the jury.
In a recent decision in the Property and Business courts: Odhavji v Tighe & Ors [2025] EWHC 372 (Ch), (24.02.2025) at §73[11], Mr Justice Fancourt noted the steps a prudent party should take when a transcript cannot be obtained; namely, attempt to agree a note of the hearing, ensuring that note is agreed with the court and all participants.
Should that not be possible, the opportunities to reconstruct what happened at an inquest, or to prevent technical glitches ocurring, appear limited. Beyond periodically checking their court systems for recording, transferring, storing and retrieving court recordings, is working as expected, there appears little that court officers can be expected to do.
There likewise seems little a coroner can be expected to do if court recording equipment appears to be working, but no transcript can subsequently be obtained. However, given the consequences can be costly, greater vigilance in keeping a written record seems paramount.
Michael Walsh of Serjeants’ Inn Chambers acted for the Defendant Coroner in this case.
Footnotes
[1] R (Tainton) v HM Senior Coroner for Preston and West Lancashire [2016] EWHC 1396 (Admin); 4 WLR 157.
[2] See in particular our earlier blog “Costs against Coroners: being “neutral” means staying neutral, a partisan Coroner risks an adverse costs order” here.
[3] In Tainton a similar omission to refer a prisoner for an oncology review had not been recorded by the jury, but as it was noted in the High Court decision Art 2 was satisfied and a fresh inquest was not required.
[4] As per the Administrative Court Guide 2024, at §12.10, and Sections 31(2A) and (2B) Senior Courts Act 1981.
[5] at §61
[6] at §78
[7] at §74 of Tainton
[8] at §78 of Tainton
[9] at §80 of Tainton
[10] We can all perhaps recall instances where recordings are at least partially unintelligible, due to persons in court inadvertently speaking over one another, or occasionally speaking too softly to be heard above background noise.