Must article 2 inquiries seek to identify those responsible for the death?

Written by: Bridget Dolan KC, Elizabeth Fox
Published: 13 March 2019

Re: Finucane’s Application for Judicial Review [2019] UKSC 7, [2019] 3 All ER 191

In February 1989 Patrick Finucane, an Irish Catholic lawyer, was eating dinner with his wife and children when gunmen forced their way into his home and shot him 14 times. Thirty years later this murder remains one of the most notorious events of the Northern Ireland ‘Troubles’.

An inquest the following year examined only the immediate circumstances of the death. Before long, however, it emerged that there was, as his widow suspected, collusion between the murderers and members of the security forces. The British Government have acknowledged and formally apologised for that collusion. Despite a subsequent guilty plea to the murder by one loyalist paramilitary, none of the numerous investigations into the killing have identified the members of the security forces involved or the assistance provided. There has still been neither an Art 2 inquest nor any formal public inquiry into the state involvement.

The Supreme Court have now determined that, whilst the decision not to hold a public inquiry was lawful, in the circumstances of Mr Finucane’s death Art 2 does require that there is a further investigation conducted which has the means to identify the perpetrators. Whilst the precise form of that investigation will not be prescribed by the courts and remains a matter for the government, whatever form of investigation or inquiry is adopted must meet the Art 2 procedural obligations.

The Duty of Candour shows its teeth

Written by: Susanna Rickard
Published: 29 January 2019

From the jaws of the Care Quality Commission this month comes the first ever fine issued for breach of the Duty of Candour[1]. Bradford Teaching Hospitals NHS Foundation Trust have been given a fixed penalty notice for £1,250 for failing to apologise to a bereaved family within a ‘reasonable’ time.

A baby had been admitted to Bradford Royal Infirmary in July 2016. Delays in diagnosis and missed opportunities to admit him had been recorded as a notifiable safety incident, yet the family were not informed of this and did not receive any apology until October (writes the CQC).

The CQC’s action does not relate to the actual care provided to the child, but rather to the fact that the NHS Trust was slow to inform the family that there had been delays and missed opportunities in his treatment.

Apparently the hospital identified and reported their breach to the CQC themselves, and have implemented an awareness-raising programme across their staff to avoid this happening again. Whilst in theory the CQC have powers of prosecution, in the circumstances, this relatively small fine seems more proportionate.

It is “probably suicide” in Northern Ireland too

Written by: Bridget Dolan KC
Published: 23 January 2019

In the matter of Steponaviciene’s Application [2018] NIQB, 16.11.18

As coroners, lawyers and the bereaved wait to find out how the Court of Appeal will decide the Maughan case this coming April[1], a decision from across the Irish Sea has looked in detail at the English and Welsh Divisional Court’s decision in Maughan and found no flaws in its “careful and persuasive” reasoning. For the time being at least, the issue of whether the deceased died from suicide should be decided on the balance of probablities in Northern Ireland just as in the English and Welsh Coroners’ courts.

In a detailed judgment McCloskey J has also laid some of the groundwork for anyone resisting the English appeal[2]. In considering the arguments in Steponaviciene’s Application the judge reviewed nine cases put before him that the court had not been referred to in Maughan at first instance. Roundly dismissing the suggestion that any of these cases rendered the Maughan decision per incuriam, the judge lamented that one of the “unfortunate repercussions of the internet explosion was the routine inundation of electronically available judicial decisions belonging to multiple levels in the hierarchy of the legal system without proper regard to the doctrine of precedent.”

A potential murder revealed: Should the cumbersome s.13 process still be necessary?

Written by: Bridget Dolan KC
Published: 16 January 2019

Re: The inquest into the death of Helen Bailey [2018] EWHC 3443 (Admin)

It is “elementary that the emergence of fresh evidence which may reasonably lead to the conclusion that the substantial truth about how an individual met his death was not revealed at the first inquest, will normally make it both desirable and necessary in the interests of justice for a fresh inquest to be ordered”. So stated the Lord Chief Justice when ordering the fresh Hillsborough Inquests[1].

It might then be thought that a Senior Coroner overturning their own (or their predecessor’s) inquest on the grounds of significant fresh evidence pointing to the death being a homicide would be a simple process: after all the Coroner is hardly likely to have misjudged the importance of that new evidence recently revealed. Yet the cumbersome requirements under s.13 Coroners Act 1988 mean that a Senior Coroner who believes that justice requires a fresh inquest must still follow the time consuming two stage process of, first, applying to the Attorney General’s Office for permission to make an application[2] and once that permission is inevitably granted, follow a second and separate process of making an application to the High Court.

Costs against Coroners: being “neutral” means staying neutral, a partisan Coroner risks an adverse costs order.

Written by: Cecily White
Published: 14 December 2018

R (Paul Worthington) v Senior Coroner for Cumbria [2018] EWHC 3386 (Admin)

Many will recall the much publicised judicial review brought by the Adath Yisroel Burial Society[1], which led to the Senior Coroner for Inner North London’s “cab rank” burial policy being quashed. When it came to costs, the Court held that the Coroner had “crossed the line” from merely seeking to assist the Court on aspects of law and procedure into arguing the correctness of the decision under challenge. At that point she was no longer protected by the general rule that coroners who remain neutral in judicial review challenges to their decisions should not be held liable for the applicant’s costs[2]. Partial costs were awarded against her.

Even ‘neutrality’ in the face of an inevitably successful application will not necessarily mean costs will be avoided if the Coroner behaves unreasonably. In Hopkins the Swansea Coroner unreasonably refused to sign a consent form when the bereaved family’s s.13 application was clearly bound to be successful. The Coroner was ordered to pay all the applicant’s costs from service of the claim[3].

In another much discussed case this year of Maughan[4] (concerning the lawfulness of the Coroner’s directions on the standard of proof for suicide) the Coroner advanced reasons why the guidance on which his directions had been based was “arguably correct”, yet was said to have maintained a “neutral stance” – perhaps hoping to avoid the potential adverse cost consequences of losing the claim (although the outcome was a score draw and the judgment does not suggest that any application for costs was made either way).

The defendant Coroner in the recent Poppi Worthington case[5], through his counsel, sought to maintain that he too was taking a “neutral stance”. The three judge Divisional Court (which included the Chief Coroner) disagreed, observing that the Coroner had, in practice, sought to persuade the Court that the claim should be refused.

“Both parties clearly sought to persuade us, to the best of their considerable ability, that their submissions should be preferred.”

The Court noted that, despite the Coroner’s asserted ‘neutrality’, had the claim been successful, the Claimant would have been entitled to his costs against the Coroner.