R (Lee) v HM Assistant Coroner for Sunderland [2019] EWHC 3227 (Admin) 12.9.19 (judgment here)

It is now commonplace in advance of inquests for coroners to rule on their scope, including whether possible state responsibility requires the inquest to meet the UK’s Art 2 procedural obligations. That task is not easy when the extent of Art 2 involves a complex question of law to be applied in factual circumstances that are often still to be uncovered. Added to that, the jurisprudence of the Art 2 duty is still evolving as its boundaries are repeatedly explored by the courts as new circumstances are presented for consideration.

The case of Rabone v Pennine Care NHS Trust[1] was one such new circumstance and considered whether there was an operational duty owed under Article 2 to informal psychiatric in-patients who were not detained under the Mental Health Act. Although Melanie Rabone died when on leave outside of hospital the Supreme Court considered that the operational duties did extend to the circumstances of her case - taking account of her extreme vulnerability and the exceptional nature of the risks alongside the degree of responsibility and control assumed by the NHS Trust.

Following Rabone the question arises of whether Article 2 procedural obligations might be engaged after the death of a person who is a mental health patient receiving care in the community.   In this blogger’s experience several coroners (and NHS Trusts facing civil claims) have since accepted that an Art 2 duty can be owed to a community patient, particularly where the alleged shortcomings include a failure to admit a vulnerable person who was at obvious and imminent risk of suicide. However until recently no challenge to a coronial decision on the application (or non-application) of Art 2 at a community patient’s inquest has been reported from the higher courts.

The applicant in R (Lee) v HM Assistant Coroner for Sunderland has now invited an important extension of the law beyond Rabone. However, if you are hoping for clear or simple answer to this vexed question be ready for disappointment. To paraphrase this very lengthy extempore judgment - delivered by HHJ Raeside QC after hearing two days of legal argument –  it is all very complicated and will always depend on the facts.

Dyer v Assistant Coroner for West Yorkshire [2019] EWHC 2897 (Admin) 30 October 2019 (judgment here)

If the tribunal, the lawyers and the jury who will be making the decision can watch a witness as they give live evidence one might ask why should it matter if the rest of the public and press might not see the witness' face?

However it matters a great deal if one is to have any respect for the constitutional principle of open justice which, as one of the core safeguards in our judicial system, should be fundamental to all courts and tribunals exercising the judicial power of the state.

In Coroners courts, as in the rest of the British justice system, the notion that justice should not just be done, but also be seen to be done is far more than an often repeated trope; it is something that rightly weighs heavy when the loss of a life is at the centre of the inquiry, and particularly so when agents of state are implicated in the tragic death of a black man in custody.  It is, therefore, unsurprising that in the recent case of Dyer heavy justification was required for preventing the deceased’s parents, partner and son from watching the faces of the police witnesses whilst they gave their inquest evidence.

Although balancing potential risks to police officers from those who may wish them harm could justify their giving evidence behind screens and so not open to public scrutiny, it was a step too far, held Mrs Justice Jefford, to also prevent the close family of the deceased from seeing the relevant officers’ faces.

The Notification of Deaths Regulations 2019 [1] (here) come into effect on 1 October 2019 and will place a legal duty on ALL doctors who come to know of a death to ensure it has been reported to a Coroner where any of the circumstances that might trigger the Coroner’s investigatory duties appear to be present.  

Although for over half a century, under the Births and Deaths Registration Act 1953[2] the deceased’s ‘attending medical practitioner’ (‘AMP’) has been required to provide the Registrar with a medical certificate of the cause of death (‘MCCD’), until now there has been no statutory obligation upon the AMP, or any other doctor, to either directly notify the Coroner or ensure the Coroner has been informed by another medical colleague of a death falling within the Coroner’s jurisdiction.[3]

The circumstances in which the doctor's notification duty will now arise largely parallel those situations falling under s.1(2) Coroners and Justice Act 2009 which would give rise to the Coroner’s own investigatory duty – i.e. when the doctor suspects the death was violent or unnatural (including from neglect or self-neglect) or that it occurred whilst the deceased was in state detention or where the cause of death is unknown or the identity of the deceased is not established.

"Better safeguards with the additional scrutiny of deaths"

Previously it would often be the Registrar or a Police Officer who would notify the Coroner of a death in the community. From tomorrow, wherever a  a notifiable death has occurred of which a doctor is  aware that death must also be reported directly to the Coroner by a medical practitioner.

Fullick v The Commissioner of Police of the Metropolis [2019] EWHC 1941 (QB), 25 July 2019 (judgment here)

The funding of representation for the bereaved at inquests is not just an un-level playing field, but a total quagmire often more akin to the aftermath of an outing of the 1988 Pontypool front row on a rainy day in December. The costs of representation at an inquest will only be met from public funds in cases deemed to be ‘exceptional’ (where, as a minimum, Art 2 is engaged or where it can be shown that the provision of advocacy for the bereaved family at the inquest is likely to produce significant benefits for a wider class of people). Calls for non-means tested funding for the bereaved, even though supported by the Chief Coroner,[1] have been rejected.[2] [3] Even the families of those killed in the London Bridge attack were told it was not in the public interest for them to receive state funding at the inquests.[4]

Against that background, it is unsurprising that there is a growing body of case law regarding the recovery of the bereaved’s inquest costs as part of the costs of a subsequent successful civil claim. The amounts at stake can be very large even though the civil claim will often settle pre-action following pejorative inquest findings.

Some of the principles in play are now helpfully set out in the recent case of Fullick – an appeal of a Deputy Master’s order that the Met Police should pay costs of over £88,000 following the pre-action settlement of a claim for damages for breach of Art 2, negligence and misfeasance in public office in a death involving the police.

The decision is worth a read for its consideration of the purpose and function of an inquest, as well as its setting out of the principles underpinning the recoverability of inquest costs.

Procedural Notes from the ‘Birmingham Pub Bombings’ and ‘Deepcut’ Inquests

We all like a free helping hand, and so at the UKIL Blog we are happy to be able to share with the blogosphere the recent wisdom of two ‘Judge Coroners’ who have drawn up route maps to determining complicated procedural issues arising in their inquests.

None of what follows is formal guidance of course, but, practical tips from others’ experience are always useful, and coroners and inquest advocates might find these notes provide a helpful starting point when dealing with such matters, particularly when they have not, as yet, been addressed in the official ‘Chief Coroner’s Guidance’.[1]

R v Lawrence [2019] Wimbledon Magistrates Court

The unprecedented tale of “Dr.” Duncan Lawrence and his withholding of information from a coroner about his involvement in the death of the teenager Sophie Bennett has already gripped the headlines. This highly unusual criminal prosecution of a healthcare staff member who failed to give evidence at an inquest into the death of one of his patients is thought to be the first of its kind under the Coroners and Justice Act 2009 [1]. The saga has now taken a further extraordinary turn.

Despite having pleaded “100% guilty” on 16 August 2019, on subsequently attending court for sentencing Lawrence sought and was given an adjournment so that he may consider resiling from his earlier guilty plea.

The question that arises is whether, having already been fined £650 in May 2019 by the Assistant Coroner for his non-attendance at the inquest (pursuant to Schedule 6 part 6 CJA 2009), Lawrence is being put in double jeopardy by the additional criminal prosecution of him under Schedule 6 part 7 of the Act.

Frost v HM Coroner for West Yorkshire (Eastern District) [2019] EWHC 1100, 8 May 2019, (judgment here).

Where new evidence becomes available which renders an inquest’s factual basis inaccurate the interests of justice remain the touchstone for applications under section 13: even the passage of over half a century does not remove the necessity and desirability of ordering a fresh inquest.

Here a bereaved brother successfully applied to quash the decision of the Inquest held in 1966 (under the 1926 Act), which had found that Ian Spencer had murdered his 14 year old sister, Elsie Frost.  

Spencer had been committed for trial, but the Crown had offered no evidence against him.  A new investigation initiated in 2015 had implicated another man, Peter Pickering, who was already serving a life sentence for manslaughter of a 14 year old in 1972. However, Pickering died in 2018 before a charging decision could be made. The police twice publicly stated they believed he had killed Elsie.

The Coroner questioned the value of a fresh Inquest both in terms of the public interest and the interests of the families, and so left it to the bereaved family to go through the process of seeking a fiat and making an application for a fresh inquest.  The Divisional Court clearly did not share the Coroner's concerns.  Indeed, the judgment provides a handy 'nutshells' review of the issues relevant to the passage of time in an application under section 13, including the interests of the bereaved, of properly exploring deaths and of setting the record straight.   The issue of whether 53 years should render the further investigation into the tragic case unnecessary did not trouble the court, 

“Public interest has not been significantly vitiated by the lapse of time"

Re AB (Application for reporting restrictions: Inquest) [2019] EWHC 1668 (QB) 27.6.19 (judgment here)

When seeking any order it always helps to make the right application, to the right court, following the right procedure.   Although when it does go horribly wrong it at least provides valuable learning for the rest of us.

So make sure you are sitting comfortably, and get ready to be educated by Mr Justice Pepperall dishing out a lesson on making an application for reporting restrictions in respect of an inquest.

Inquest into the death of Geoff Gray, 20 June 2019 (Record of Inquest here and findings of fact here)

In what must be a coronial first an assistant coroner has issued a ‘PFD report’[1] directed at the Chief Coroner suggesting he may be able to take action himself to prevent future deaths by issuing guidance to coroners regarding post-mortem investigations after shooting cases.

On 20 June 2019 HH Peter Rook QC[2] concluded the second inquest into the death of Geoff Gray. Geoff was 17 years old when he died from two gunshot wounds to the head at Deepcut Barracks in Surrey in 2001.   Evidence heard at the fresh inquest revealed that very soon after Geoff’s body being found the assumption had been made by attending civilian and military police and by the coroner’s officer that Geoff’s death was a suicide. Therefore only a ‘routine’ coronial post-mortem was requested which was performed on the day of the death.

Two earlier deaths of young trainees from gunshot wounds [3] at the same barracks in 1995 were also both investigated with ‘routine’ coronial post-mortems. I[3]n one case the post-mortem had been carried out by a general histopathologist, who had no experience of performing an autopsy following a death from high velocity gunshot wounds.  

But, as the expert forensic pathologist in Geoff Gray’s case stated,

shooting cases are not routine”…“if you make assumptions early on in the investigation, then there is the likelihood, and indeed the probability, that vital evidential material is lost”.

Inquest into the death of Geoff Gray, 20 June 2019 (Record of Inquest here and findings of fact here)

The long running second inquest into the death of Private Geoff Gray at Deepcut Barracks ended yesterday when HH Peter Rook QC[1] returned a conclusion of suicide.

Geoff was only 17 years old when he was found dead from gunshot wounds in the grounds of the Officers’ Mess at approximately 01.10 hours on 17 September 2001. This fresh inquest, which was ordered by the High Court in 2017, had, in particular, explored whether Geoff had been shot by another person who had then moved his body to the location where it was found.

The Coroner held that Geoff, who had been on armed guard duty, had “died rapidly at the place where his body was found. No third party was involved in the shooting.

On the Record of Inquest the Coroner recorded that Geoff had shot himself with a SA80 rifle that was set to automatic, causing two wounds to the head, and that “at the time Geoff fired the shots he intended to take his own life, although that state of mind may have only been transient.” 

Questions had arisen as to how a young man who appeared as happy-go-lucky as Geoff could have carried out this fatal act. Particularly where, as the coroner found, “Geoff’s actions could not reasonably have been anticipated at the time. He did not suffer with any known psychological difficulties nor had he been the recipient of any ill treatment…Any concerns Geoff may have had did not relate to the camp regime.”

Having considered oral and written evidence from 105 witnesses, including 7 expert witnesses in pathology, ballistics and forensic science, the Coroner determined that Geoff had not been killed by another person.   “However the army had failed adequately to address the risk of self-harm that might arise in respect of young and inexperienced trainees performing guard duty with unsupervised access to firearms. Proposals that trainees should not provide the Barracks’ guard, but be replaced with a professional guard force had not yet been acted upon.”

“Whilst it was entirely Geoff’s decision to take his own life, the above failures provided Geoff with an opportunity to go to an isolated location with a firearm where he could act as he did.”

The Coroner also made a report to Prevent Future Deaths (a ‘PFD’ report) directed to the Chief Coroner and the Royal College of Pathologists. (see blog post here)


 The Coroner’s detailed ‘findings of fact’ will shortly be posted on this site when HH Peter Rook QC releases an approved transcript.


John Beggs QC and Cecily White of Serjeants’ Inn have represented the Surrey Police at each of the three fresh inquests into the deaths of trainees at Deepcut Barracks of Ptes Gray (in 2019), Benton (in 2018) and Ms James (in 2016). Bridget Dolan QC and Jamie Mathieson were appointed as Counsel to the Inquest.



[1] Sitting as an assistant coroner in Surrey