Article 2 inquests and the burden of proof when the answer is “there is no answer”

Written by: Bridget Dolan KC, Ian Skelt KC
Published: 12 November 2018

In the matter of Hugh Jordan [2018] NICA 34

As the ongoing Maughan[1] litigation focuses minds on the standard of proof applicable for a suicide finding at an inquest, it is perhaps surprising how little thought is given to the issue of the burden of proof at an inquest. However, in the latest episode in the long running saga of the inquest into the death of Pearse Jordan, the Northern Ireland Court of Appeal has added some clarity to the position by recognising that there can, in some situations, be a burden of proof even in an inquisitorial setting. Nevertheless, determining factual issues in inquests will, sometimes, not be possible.

Burden? Standard?

First, a quick reminder of your second day of evidence lectures at law school:

Standard of proof: the level of evidential certainty required to establish a fact.
Burden of proof: the obligation on a party to adduce evidence to establish a fact.

Of course I hear you say, even a law school fresher would know there is no burden of proof within inquisitorial proceedings! Surely the clue is in the name? An ‘inquiry’ asks questions and establishes facts, but it does not require anyone to prove or disprove anything. An inquiry has no parties; no one has a formal case to put or a case to meet.

But just as the Maughan case (blog here) has reminded us all that assumptions are often the errors we don’t realise we are making, the NI Court of Appeal now tells us we would be wrong: when Art 2 is engaged there can be a burden of proof in an inquest – one to be discharged by the state.

“He-Who-Must-Not-Be-Named”: Disentangling the Scope of an Inquest

Written by: Nageena Khalique KC
Published: 30 October 2018

Coroner for the Birmingham Inquests (1974) v. Hambleton & Ors. [2018] EWCA Civ 2081

On the evening of 21 November 1974 two successive explosions tore through two busy city centre pubs in the heart of Birmingham. The bombings, thought to be perpetrated by the IRA, resulted in the largest UK mainland peacetime loss of life to terrorism in its time: 21 innocent people were killed and 220 more were injured.

The inquests were opened but adjourned pending a criminal investigation. The following year, six men were convicted and sentenced to life imprisonment. The miscarriage of justice involving the West Midlands Police that led to the release of ‘the Birmingham Six’ by the Court of Appeal in 1991 is now notorious. Despite the subsequent police investigations no further convictions have followed and the perpetrators of these atrocities remain unidentified and unpunished.

Who then was responsible for the deaths of the 21 victims? How did they come to die in these circumstances? Could their deaths have been prevented? The answers as to what happened for over 44 years ago remain hidden in a metaphorical ‘chamber of secrets’.

The key question is what is the scope of the inquest? Although inquests must not become proxy criminal trials, is the identity of those involved in violent deaths properly within the scope of an inquest?

Whilst some of the obstacles beyond the trapdoor will be navigated in the forthcoming inquests, following the recent decision of the Court of Appeal it now seems that the door that might lead to the final secret, the naming of the evil-doers, is not to be unlocked.

Application for an inquest into Alfie Evans’ death is “totally without merit”

Written by: Bridget Dolan KC
Published: 1 October 2018

R (Allman) v HM Senior Coroner for Liverpool and Wirral CO/3230/2018, 25.9.18

The short and desperately tragic life of Alfie Evans, and his parents’ heart-rending fight to have him transferred to Rome for continuation of his life sustaining treatment, has recently been fully played out in the public arena.

The public hearings in the High Court[1] and the four appearances in the Court of Appeal[2] were not only all open to the public but the details were widely reported throughout the print and digital media. On two occasions the family sought permission to take the case to the Supreme Court[3] and the European Court of Justice[4] but on each occasion those applications were dismissed. Those hearings were on paper without any oral submissions but once again the determinations were made public.

The relevant clinical information and extracts of the various expert opinions relied upon by the Courts at each stage are set out in the judgments. They each confirm the unanimous agreement between all of the medical experts involved – including specifically all of the experts instructed by the family – as to the catastrophic and untreatable, progressive, neurodegenerative condition from which Alfie suffered; there can be no question that Alfie’s death on 28 April 2018 was the result of a naturally occurring condition.

Against that background it is difficult to understand what more about the facts of Alfie’s death might be learned by those who have since called for an inquest to be held. Unsurprisingly, a judicial review claim challenging the decision of the Liverpool Senior Coroner that an inquest was not required in law has now been considered “totally without merit” in the High Court.

Inexperienced Pathologists and Costs against Coroners

Written by: Amy Street
Published: 29 August 2018

(1) Diane Hopkins & (2) Frances Ryan v HM Coroner for Swansea and Neath Port Talbot [2018] EWHC 1604 (Admin)

This was a straightforward application of the High Court’s power under s13 Coroners Act 1988 to quash the determinations and findings made at an inquest and order a new one, in the light of new evidence. But the facts make surprising reading and reveal important lessons for coroners.

Mrs Pokoyski was an 85 yr old care-home resident. After a series of strokes left her paralysed she required a puréed diet. Her family were concerned that she was often being inappropriately fed in a reclining position so causing her to choke. One day she was said by care staff to have suffered a ‘bad episode” of vomiting and aspirated vomit; she became ill, struggling to breathe; she was taken to hospital but died a few days later.

Following a post-mortem examination a consultant histopathologist, Dr Thomas, gave the cause of death as “aspiration pneumonia with locally advanced carcinoma of the lung”. However, at the inquest Dr Thomas changed his opinion. Having heard the factual witness evidence he said he now wasn’t clear if choking had occurred and that the food material he saw in the lungs might have come from the stomach rather than from aspiration. Dr Thomas now gave a different cause of death – pneumonia caused by lung cancer – which the assistant coroner accepted as part of his conclusion.

However, the deceased’s daughters had legitimate concerns about how their mother had been fed and and so after the inquest obtained an independent expert pathologist’s opinion. Professor Soilleux gave a damning analysis of Dr Thomas’s evidence. Not only had the original cause of death been correct, but the deceased had died from the worst aspiration pneumonia this expert had ever seen under the microscope.

This was probably suicide: the criminal standard of proof is no longer required.

Written by: Bridget Dolan KC, Debra Powell KC
Published: 26 July 2018

R (Maughan) v HM Senior Coroner Oxfordshire and others [2018] EWHC 1955 (Admin)

In a roller-coaster judgment the High Court has revolutionised the approach to the conclusion of suicide in the coroner’s courts and has determined that whether the deceased died as a result of suicide is to be determined on the civil standard of proof – on the balance of probabilities.

Judgments such as this are an extremely important reminder to all lawyers of the dangers of making the assumption “it must be right because that’s how it has always been”. Applying the doctrine of stare decisis means the Court would doubtless now say to us all that “whatever you have all been assuming was always the case, you were actually always wrong”.

The Claimant submitted that decades (if not centuries) of case law had established that a verdict of suicide at an inquest could only be returned on the criminal standard of proof; Leggatt LJ and Nicol J, however, found that the authorities simply did not bear this out.

The key question is what is the scope of the inquest? Although inquests must not become proxy criminal trials, is the identity of those involved in violent deaths properly within the scope of an inquest?