Inquest representation: Is there a contractual right to “closure”?

Written by: Katie Gollop KC
Published: 4 May 2017

Shaw v Leigh Day (A firm) [2017] EWHC 825 QB

Attention family representatives! Absolutely nooo pressure at all, it’s just that if you don’t get your client the closure they want out of an inquest, now you can be sued for damages for causing them distress. That is the effect of this recent High Court decision.

The tweetie-birds-round-head inducing litigation saga is set out in more detail below. In a nutshell, Mrs Shaw’s elderly father had a cardiac arrest following complications of a trans aortic valve procedure (TAVI). She instructed Leigh Day, one suspects on a private basis (although this isn’t clear from the decision), and there was an Article 2 inquest at the end of which the jury concluded that the death was an unintended result of a therapeutic procedure and made no criticisms of anyone.

The inquest left Mrs Shaw dissatisfied and, so far as she was concerned, lacking answers to key questions. Even though there has been since been a successful negligence action against the hospital and the surgeon, the High Court has now cleared the way for her to claim £5,000 for mental distress from Leigh Day caused by what she says is the poor job they made of getting disclosure and representing her at the inquest.

Self-defence and Inquests: Subjective or Objective Reasonableness?

Written by: Bridget Dolan KC, George Thomas
Published: 31 March 2017

R (Duggan) v Asst Coroner North London and (1) Metropolitan Police Commissioner (2) Serious Organised Crime Agency (3) IPCC (4) DS Belfield (5) DC Faulkner (Interested Parties) [2017] EWCA Civ 142

Mark Duggan’s fatal shooting by Metropolitan Police officers gave rise to widespread public disorder across the country. The inquest jury’s finding that the cause of death was “lawful killing” has, unsurprisingly, remained matter of public debate and given rise to several legal challenges.

The Court of Appeal has now held that:

“There is nothing in either domestic legislation or the jurisprudence of the ECHR which requires that, in every case where a self-defence justification is raised at an inquest, a specific direction must be given to the jury that, in deciding whether a belief of imminent threat was honestly and genuinely held, the reasonableness or unreasonableness of that belief from the viewpoint of the person claiming the defence is a relevant consideration.”

Inquest juries, DOLS and the law of unintended consequences

Written by: Bridget Dolan KC
Published: 31 January 2017

R (Ferreira) v HM Senior Coroner South London [2017] EWCA Civ 31

Reading about the 1888 Victorian Railway Commissioners case when studying for the bar I always wondered what it might look like if the ‘floodgates’ so fiercely guarded by judges in those old judgments were actually prised open. Well now I know.

The combination of the Mental Capacity Act ‘Deprivation of Liberty Safeguards’ and the Supreme Court’s 2014 Cheshire West[1] decision have produced a legal tsunami that has deluged the Court of Protection. This has been followed very closely by a smaller but equally damaging tidal wave that inundated Coroners’ Courts once holding an inquest into the death of any person who was the subject of a MCA DOLS authorisation was deemed mandatory.

If the appellant had won this present case, and a death in a NHS hospital due to the physical illness of someone lacking capacity had amounted to a death when deprived of liberty (so in state detention), and therefore required a jury inquest, then the already swamped Coroners Courts might have finally submerged.

Happily, however, the watery metaphors can now dry up, as a combination of the Policing and Crime Bill (soon to be given Royal Assent) and the Court of Appeal’s most recent common sense judgment in the Ferreira case have firmly rebuilt the levee around the Coroners’ Courts, handing a few sandbags to the Court of Protection at the same time.

More Art 2 Inquests required after public bodies’ regulatory failures?

Written by: Bridget Dolan KC
Published: 23 January 2017

Cevrioğlu v. Turkey, ECtHR (Application no. 69546/12), January 2017

Coroners feeling relief that amendments to the Policing and Crime Bill will mean that the burden is about to be lifted from them of conducting inquests after any death of a person subject the Mental Capacity Act DOLS provisions might wonder if their workload will nevertheless increase following this recent judgment of the European Court of Human Rights (ECtHR) that clarifies that the ambit of Art 2 covers failures in the state’s regulatory oversight of private companies’ actions. Where there are arguable grounds to suspect such a regulatory failure that would otherwise have ameliorated a risk of death an Art 2 inquest may now be required.

Where there are arguable grounds to suspect a regulatory failure to ameliorate a risk of death an Art 2 inquest may now be required.

The facts of the case are tragic: in 1998 the applicant’s ten-year-old son, and his friend were found drowned after falling into a 2 metre deep water-filled hole on a construction site where they had been playing near their home. The construction site was the responsibility of a private company, however construction permits had been issued by the Municipality of Antakya which could also issue warning and enforcement notices if unsafe practice was revealed.

When the domestic courts failed to provide a remedy for the applicant’s claim against the Municipality, for failing in its responsibilities for inspecting the work, he applied to the ECtHR for redress. The ECtHR held unanimously that there had been a violation of his substantive and procedural rights under Art 2 ECHR and awarded EUR 10,000 in damages.

Inquest reveals Police and IPCC failings

Written by: Bridget Dolan KC
Published: 17 January 2017

R (Chief Executive of the IPCC) v IPCC [2016] EWHC 2993 (Admin)

The value of a Coroner’s inquest in opening up matters to public scrutiny is clearly demonstrated by this highly unusual application by the Chief Executive of the IPCC who, following a searching inquest, brought proceedings against his own organisation to overturn its flawed report into police conduct.

Jordan Begley died following contact with police during which a Taser had been used and he had been restrained. Police officers had been called to his house by his mother, who was concerned that Jordan might become violent. He had been drinking and was upset about having been accused by others of stealing a handbag. His mother said that he had a knife and he wanted to go outside to confront his accusers. A number of officers arrived at the scene and a Taser was used. Once tasered, Mr Begley fell to the floor and was restrained face-down. In the course of bringing him under control, one of the police officers delivered two strong punches as “distraction strikes” to Mr Begley’s back to enable him to be handcuffed. It shortly became clear that Mr Begley was very unwell and despite being taken to hospital, tragically, he died shortly thereafter.

The IPCC report into the incident, which was available to the inquest, had found that no officer had any case to answer for misconduct or gross misconduct. The inquest jury did not agree.

The inquest jury reached a narrative conclusion that was far more critical than the IPCC report, finding that:

Mr Begley had died from a stress-induced cardiac arrest;
the use of a Taser was “not reasonable”;
the length of time for which the Taser was deployed (over 8 seconds) was not reasonable;
there was no need for a police officer to have punched Mr Begley twice;
the police had not been sufficiently concerned with Mr Begley’s welfare once he was handcuffed; and
failings by police officers had materially contributed to the death.

In light of the inquest findings the IPCC reviewed its own investigation and found errors in its own guidance and the independent investigation report

In the face of such public criticism of police actions it was clear that the IPCC report needed to be reconsidered, but the only mechanism to do so was for the Chief Executive to bring judicial review proceedings against his own organization, so as to quash a report and enable a fresh investigation to take place. That claim was opposed by the police officers involved.