R (Ture) v Senior Coroner for Manchester North [2022] EWHC 1027 (Admin)
It is not really the substance of this permission decision that is of most interest to this blogger…
…Spoiler Alert: the Senior Coroner had done a really good job of expressing her conclusions in what had been a very difficult case both evidentially and legally, and the claim that she had (i) wrongly limited the scope of her inquiry; (ii) given inadequate reasons and (iii) arrived at an unreasonable and unjustified conclusion had no realistic prospect of success…[1]
Rather, what is notable from the judgment is the consternation expressed by a High Court judge on his discovering that the coronial findings of fact, the reasons for the conclusions reached by a coroner and the Record of Inquest document are not normally made easily available to the public.
The facts
A schoolgirl had drowned in circumstances that gave rise to allegations of bullying and unlawful killing, whether intentionally or due to the gross negligence of another schoolchild. Over a million people had signed a petition seeking ‘Justice for Shukri Abdi’[2] calling for a criminal investigation to be opened into the circumstances surrounding her death and for a criminal prosecution to take place. The Cheadle MP dedicated a page of her website to the case saying “The family of Shukri deserve a thorough investigation and should expect it to be conducted in a timely and transparent way.”[3] ‘Worldwide protests’ were held in the UK, the USA, and Canada to mark the anniversary of Shukri’s death in June 2020.[4] Against that background the Senior Coroner, unsurprisingly, had to deal with the inquest held in November and December 2020 in the full glare of the media floodlights.[5]
Having heard and tested the evidence, the Coroner found that there had been an ‘ill-considered’ attempt to teach Shukri to swim that went ‘badly wrong’. Whilst other children’s actions had been ‘naive and foolish’, there had been at its highest ‘a serious error of judgement’ however Shukri’s death was accidental. The Record of Inquest recorded:
“On the 27th June 2019, at a location on the River Irwell near to Dunster Road in Bury, [Shukri] entered the water with another 13 year old girl. She did so following some encouragement. The other child was aware that Shukri could not swim and was reliant on her to stay afloat. They swam out to an area where the water was deeper, at which point the other Child attempted to swim underwater. At this point a combination of the deeper water together with Shukri panicking and the other child struggling to swim meant that she probably pushed Shukri off. Shukri went under the water and drowned.”
Judicial Surprise
When the Coroner’s findings were challenged by Judicial Review, Mr Justice Fordham expressed his ‘surprise’ that the Coroner’s very detailed 35-page, 200-paragraph Findings and Conclusion document, produced at the end of this complex inquest, was not readily available in a publicly accessible form as a document online.[6]
The Findings and Conclusions set out at length the reasoning behind the decision. Given that the detail of the decision was now being criticised in a Judicial Review claim, the judge felt that “it would be a real and substantial advantage for anyone who wished to do so, to see the document to which the Court was referring in its own judgment, in its entirety”. The Senior Coroner has since generously provided the Inquest Law Blog with her original document, which can be read here.
Fordham J was perhaps being generous when he said he would assume there were ‘good reasons’ for not usually publishing coronial findings.
“I will take it that there are considered to be good reasons why practices have been adopted and retained as they have”.
Perhaps the time has now come for those practices to be reconsidered and their retention reviewed?
Open justice
In any discussion of open justice it is worth reminding oneself of why the principle exists by repeating the views of Lord Justice Toulson on the matter in 2012:
“Open justice. The words express a principle at the heart of our system of justice and vital to the rule of law. The rule of law is a fine concept but fine words butter no parsnips. How is the rule of law itself to be policed? It is an age old question. Quis custodiet ipsos custodes – who will guard the guards themselves? In a democracy, where power depends on the consent of the people governed, the answer must lie in the transparency of the legal process. Open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse.” [7]
Publishing coronial findings
Of course the administrative burden in publishing every individual inquest’s conclusion would be totally unworkable and generally unnecessary. The vast majority of inquests involve no live evidence being called and there is nothing of controversy in the determinations made. Where only very brief extempore findings are stated in court there is no ‘judgment’ to publish. That a coroner’s court hearing must be open to the public and media, who can attend any inquest if they wish to do so, is sufficient to satisfy the open justice principle.
At the other end of the spectrum are the judge led inquests, where generally the public interest (or at least the interest of the public) is much higher. The usual practice seems to be that where a judge coroner hears a case their findings of fact (or the jury’s conclusions) are published.[8] When there is particularly intense media and public interest then often an entire website may be provided for the inquest, sometimes with the transcripts made available.[9] Yet even then, the posting of those important coronial conclusions is often only temporary – as anyone doing a google search today for the Westminster Bridge Inquest conclusions or a formal record of the Hillsborough Jury decision will discover.[10]
Unless coronial decisions in the high media profile cases are formally published in an accessible place, and retained, there will be no easy way for the public to ever learn all of what the Coroner found and to fully understand why, unless sitting in the court for the determination being handed down. Reading the usually selective, always abridged and often sensationalised press reports of what the Coroner said at the end of an inquest is no substitute for being able to scrutinise a fully reasoned findings and conclusions document.
There is of course already a mechanism by which a copy of the record of inquest and findings could be obtained. Regulation 27 provides that “The coroner may provide any document or copy of any document to any person who in the opinion of the coroner is a proper person to have possession of it” and that must, logically include the findings of fact and conclusions if they were ever produced in a document form.
But what concerned the judge in the Ture case, given the repeated reference to the Findings and Conclusion document that were made in open court, was the public interest in fully understanding his own findings, and the open justice principle. This principle of open justice in respect of the High Court hearing was difficult to uphold without the Coroner’s determinations also being easily available to all. As the judge put it, the Coroner’s document is one which was written so as to be – and would need to be – read and understood as a whole.
The solution proposed to the judge, and readily agreed by all parties, was to annexe the Senior Coroner’s conclusions document to his own judgment. However, in the end he declined to do so. Instead the judge directly quoted extensively from the Coroner’s document in his judgment and he went on to say that if someone made an application to the High Court to obtain a copy of the Coroner’s document, he would consider it.
It seems then that we have reached the odd situation where, if the public should wish to understand important coronial reasoning, they are being encouraged by a High Court judge to apply to the High Court to obtain a copy document.
Enhanced Transparency
Transparency is not an optional extra in Coroner’s Courts. At present only very few coronial judgments are made readily available to the public online. Allowing greater transparency by publishing the more important findings would help improve public understanding of the coroner’s court process and with it public confidence in the coronial system.
Perhaps a starting point for enhanced transparency might be that the findings and outcome of any inquest significant or complex enough to either involve a judge being appointed as the Coroner or where the Coroner seeks the assistance of Counsel to the Inquest might be made publicly available. Placing all such findings in the same, easily discoverable, web location, so they are not later archived and effectively lost to scrutiny, would also aid public accessibility. The Judiciary of Northern Ireland seem to manage to publish all their judge led inquests’ findings in one place: the 65 Northern Irish inquest decisions since 2016 are publicly available here.
This blogger much prefers her parsnips buttered too.
Footnotes
[1] As the High Court judge put it: “beyond argument…plainly a lawful, reasonable and fair approach”.
[2] The petition was opened in June 2020 on change.org (here) (accessed 8.5.22)
[3] Mary Robinson MP – see here (accessed 8.5.22)
[5] See for example media reports here and here
[6] Nor, he noted, was the Record of Inquest published.
[7] §1 of R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420; [2013] QB 618. (here)
[8] See Deepcut Inquests (here and here) (accessed 5 May 2022)
[9] For example, see the inquests relating to In Amenas and Fishmongers Hall
[10] The Hillsborough jury conclusions (here) appear to have been taken down and the Westminster Bridge site is stated to have been archived here (accessed 5 May 2022).