Protecting Vulnerable Witnesses in Coroners Courts

Written by: Bridget Dolan KC, Amy Street
Published: 5 June 2018

R (Maguire) v Assistant Coroner West Yorkshire [2018] EWCA Civ 6

In a sequel to our earlier blog piece the Court of Appeal have delivered their judgment upholding the decision of Mr Justice Holroyde[1] who had found that the Assistant Coroner had been correct to decline to hear oral evidence from nine children who had contact with the killer of their teacher on the morning of her death, and who had heard his threats to kill and/or knew he was carrying a knife, but had not revealed this to any adult before the death.

The Lord Chief Justice noted that under the Coroners Act 1988 and its predecessors, a coroner was required to examine such witnesses as appeared “expedient”[2] and whilst the formulation is different in the 2009 Act[3] which simply empowers a coroner by notice to require a person to attend to give evidence or to produce evidence, nevertheless, the change has not affected the basis upon which a coroner’s decision to decline to call or seek evidence may be challenged, which is on the usual Judicial Review grounds[4].

In dismissing the appeal on all grounds the Court of Appeal endorsed the Coroner’s approach of balancing the value of the evidence against the potential harm to the pupils of giving evidence. In this case, given the absence of any relevant policies or rules regarding reporting the presence of knives in school, it was very difficult to see how the proposed questioning of the nine pupils would have any value at all. Exploration of the individual child’s thinking in connection with the decisions he or she made that morning when confronted with knowledge of what the killer was saying and doing was not within the scope of the inquest. The decision not to call these witnesses was therefore plainly rational.

Coronial queue jumping, religious need, fixed policies and fairness

Written by: Katie Gollop KC
Published: 16 May 2018

R (Adath Yisrosl Burial Society and anor) v HM Senior Coroner Inner North London and The Chief Coroner of England and Wales (Interested Person) EWHC 969 (Admin), 27.4.2018

This is an unhappy case all round. The silver lining is that the Divisional Court went out of its way to facilitate some public education about that most fundamental and cherished of rights, the principle of equality. Anyone wanting a crash course in: absolute and qualified rights, justification, indirect discrimination and proportionality and the PSED (the public sector equality duty) should head straight to paragraphs 93 to 143 and make an entry on their CPD form. But the take away point is this:

People are different. Treating them equally does not mean treating them the same.

The specific issue was whether the Coroner could and should fast track the administration of deaths of Jewish people or whether religion should be left out of account altogether, so that each death, and family, should await their turn in the coronial queue.

The Divisional Court decided that specific point (in appropriate cases they can and should) and then explained what equality means. We suffer discrimination not only when we are treated differently to someone in an analogous situation but also when, being different, we are not treated differently. We are not all the same, one size does not fit all and if we are to be treated equally, a balance must always be struck.

The Annual Coroners Statistics 2017

Written by: Bridget Dolan KC
Published: 15 May 2018

The Annual Coroners Statistics for 2017 that have been published this month, may not be top of the reading list for many inquest practitioners, however they are always worth a summary glance, as the figures reflect the huge volume of work that Coroners deal with behind the scenes that is often not appreciated when there are more headline grabbing inquests or judicial review cases to be reported.

The key trends (which it is well worth knowing about) are summarised here, along with important, new information about research demonstrating the reliability of non-invasive post mortem examinations by enhanced CT scanning (PMCT) and why greater use of that modality is strongly to be encouraged.

Summary of the Annual Report

There were 229,700 deaths reported to Coroners last year. However, the annual number crunching reveals only two notable year on year changes once the impact of DOLS deaths is taken into account: first, a welcome reduction in deaths of those detained under the Mental Health Act and second, a massive increase in the number of non-invasive post mortem examinations conducted.

Key figures

11% fewer deaths reported
18% fewer inquests opened
22% reduction in mental health deaths
120% increase in non-invasive post-mortem examinations.

The Joint Select Committee on Human Rights Enforcement – Inquest Strand

Written by: Katie Gollop KC
Published: 8 March 2018

On 7 March 2018 Katie Gollop QC gave oral evidence to the Joint Select Committee on Human Rights in support of the provision of public funding for families at inquests.

http://www.parliament.uk/business/committees/committees-a-z/joint-select/human-rights-committee/

A briefing paper provided to assist the committee, which was prepared by Katie in consultation with some other barristers from Serjeants’ Inn chambers, is reproduced below

All barristers at Serjeants’ Inn Chambers are independent, self-employed, sole practitioners. For that reason, Serjeants’ Inn does not have a collective view and the views expressed here are personal. That said, a number of barristers (including two who sit as Assistant Coroners) have contributed thoughts and/or provided examples of inquests (see the appendix at the end) that inform the question: are human rights being enforced in the coronial justice system?

IF THE DECEASED IS BEYOND JUSTICE, WHY DOES AN INQUEST MATTER?

Inquests, properly conducted and where the conclusions are heeded by those with the power to effect change, save lives.
They hold organisations and individuals to account publicly. They expose wrongdoing by the state. They identify and record the facts.
In so doing, inquests:

1. enable next of kin to understand what happened. And having understood, to grieve.
2. dispel rumours and conspiracies.
3. promote public confidence in state agencies – that there was no wrongdoing or that lessons have been learned so no one else will die in the same circumstances.

Lives are saved by the inquest:

1. Identifying defective systems, policies and procedures.
2. Identifying individual and organisational practice that is lacking.
3. Reporting areas where change is required to prevent future deaths.
4. Providing publicly available information about the circumstances of deaths so that patterns and clusters can be seen.
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Article 2 inquest not required if only a “mere error or medical negligence”

Written by: Liam Duffy
Published: 5 February 2018

Lopes de Sousa Fernandes v Portugal (Application no. 56080/13), ECtHR Grand Chamber, December 2017

The ECHR Chamber judgment in Lopes (15 December 2015) had the potential to expand the situations where a Middleton style “Article 2 inquest” would be required. The Chamber judgment appeared to widen the scope of Article 2 protections to incorporate errors of judgment on the part of health professionals and miscommunication between hospital departments. If poor judgment calls and miscommunications were now to be considered a substantive breach of Article 2 then many hospital deaths would require an inquest fully compliant with Middleton principles. It was perhaps only the unavailability of the judgment in English that held back the flood[1].

If poor judgment calls and miscommunications were now to be considered a substantive breach of Article 2 then many hospital deaths would require an inquest fully compliant with Middleton principles.

However, the Grand Chamber of the European Court of Human Rights (“the Court”) has now reversed the previous Chamber judgment and held, by a 15:2 majority, that there was no violation of the substantive limb of Article 2 in respect of ‘merely’ negligent hospital treatment.

The judgment provides important clarification on substantive Article 2 claims and would appear to limit such claims in the healthcare sphere to cases of a denial of life-saving treatment caused by systemic/structural issues rather than individual error. The Court has now made clear that “mere error or medical negligence” is not sufficient[2].

The case however remains of relevance for inquest practitioners as the Court upheld the finding that there had been a violation of the procedural limb of Article 2 owing to the delay in implementing the extant state structures to investigate the death.