O’Brien v HM Assistant Coroner for Sefton, Knowsley and St Helens [2025] EWHC 362 (Admin) (heard in September 2024) the recently un-embargoed judgment is here
The Court of Appeal made the point resoundingly clear in Morahan[1] that “an inquest remains an inquisitorial and relatively summary process”. As this latest case illustrates a Coroner may well be under a duty to seek out and record as many facts as the public interest requires, but this will not mean that the scope of an inquest must always be as wide as the Interested Persons might demand. Rather, as the Master of the Rolls said in Dallaglio:
“It is for the coroner conducting an inquest to decide, on the facts of a given case at what point the chain of causation becomes too remote to form a proper part of his investigation. That question, potentially a very difficult question, is for him.”
The touchstone for the Scope of any inquest will be what was called in this case ‘Coronial Causation’, a term flowing from the decision in Tainton where the President had noted the difference between the threshold for causation of death and the standard of proof required to prove causation of death at an inquest.
The conduct or event must make an actual and material (that is more than minimal) contribution to the death. Depriving the deceased of an increased chance of life, or making their death more probable than it would otherwise have been will not be enough to satisfy the causation threshold for a coroner.
The background
Linda O’Brien had died on 9 May 2020 after emerging from the fourth‐floor window of her flat and falling, suffering fatal injuries. She had likely been significantly intoxicated as she as she was 2.5 times over the legal alcohol limit for driving when she died.
The pathologist said that the majority of Ms O’Brien’s injuries appeared to have been caused by the fall, butquestions arose because some injuries to the right side of her face would be consistent with punches or slaps and there was evidence that prior to her exiting the window she may have been struck with a weapon on the left shoulder and right shin.
The only other person present in her flat when Ms O’Brien fell was Mr McMahon. Several months before this, following his conviction for assaulting her, a lengthy restraining order had been made preventing Mr McMahon from contacting Ms O’Brien.
Unsurprisingly given her injuries Mr McMahon was initially arrested on suspicion of murder. He was (importantly for later judicial reasoning) then remanded on bail following his arrest. Mr McMahon was subsequently sentenced to 20 months’ imprisonment for breach of the restraining order and for theft, however the homicide accusation was never pursued.
The history of previous breaches of the restraining order becomes a relevant aspect of the story because around a month before Ms O’Brien’s death, on 7 April 2020, police officers had received an anonymous call to an alleged disturbance at her flat. Mr McMahon had been there then and was apparently drunk when the police called round. Ms O’Brien was calm, and according to the police officers, she said to them that nothing had happened, and that she could not understand why the police had been called.
The police who attended knew nothing of the restraining order against Mr McMahon and did not discover it on checking their police systems. Those police officers later said that had they known Mr McMahon’s presence was in breach of the restraining order they would have arrested him that day.
Scope of the Inquest
The Claimant invited the coroner to investigate whether omissions by police on 7 April had possibly contributed to the death a month later. However, the Assistant Coroner determined that even had Mr McMahon had been arrested on 7 April it was speculative to suggest what would have happened next, and so there was “no Coronial Causation established linking events involving Police Officers on 7 April 2020 to those events on 9 May 2020 resulting in the death.”
The scope of the inquest would therefore be limited as the “events of 7th April 2020 and the restraining order made against Mr McMahon will not require extensive investigation at the Inquest and mention of such will be for background purposes and information. The Scope of the Inquest will focus upon events of 8th and 9th May 2020 in particular.”
The Judicial Review claim
When the Claimant challenged this Scope decision permission was given to pursue the claim on the ground that the Coroner had “prematurely and irrationally” decided that there was no causative connection between the acts and omissions of the Police and the death, and thereby unlawfully limited the scope of the investigation.
The Claimant’s case was that it was possible that, had the police officers been aware of the restraining order and acted upon it, Mr McMahon would have been prosecuted and so would not have been at the flat a month later.
It was submitted that the Coroner should have received expert evidence about what the likely progress and outcome of any prosecution in April 2020 would have been, and that this would enable a coroner’s jury to reach a conclusion on whether any omissions by police at an earlier stage of the story had contributed to Ms O’Brien’s death in May.
Possibility on possibility or speculation
The judge did not agree. He pointed out how one could not know (1) what would have happened if Mr McMahon had been arrested in April 2020; (2) whether his breach of the restraining order would have been prosecuted; (3) if so, when or what his plea would have been; (4) whether he would have been out on bail at the time of the death (noting that it was likely he would have been given bail as, first, the Bail Act 1976 applies a presumption in favour of bail and, second, he was on bail after his arrest for the rather more serious charge of murder); (5) what effect any bail conditions would have had on him (assuming he was not remanded) in particular whether Mr McMahon would have breached the bail conditions just as he had repeatedly breached the restraining order.
The judge considered any ‘expert’ opinion evidence about the likely progress of any prosecution following arrest would be purely speculative and so could be of no probative value.
It could never be said that, on the balance of probabilities, Mr McMahon would have been in custody on 9 May, had he been arrested on or after 7 April. It followed that any failure by police to arrest him could not be shown to have contributed more than minimally to the death because the causative link to the lack of arrest in April could never be established. Even if being arrested on 7 April might have increased the likelihood of Mr McMahon being remanded in custody this was still not enough to establish causation. The coroner was entitled to consider a non-causative matter fell outside the inquest’s scope
Nor was a jury needed
A second issue was whether there was “reason to suspect” that the death resulted from an act or omission of a Police Officer so as to require a jury under s.7 CJA. The judge’s view was that if one can discern in advance, as the coroner was entitled to do here, that the causative link to any omission cannot be shown to be probable, then any “reason to suspect” police actions were causative must evaporate.
This was not because there was no “reason to suspect” that a police officer’s acts or omissions might be criticised, but because it could be determined at this early stage that a causative link between that shortcoming and the death could not be established. The application was therefore dismissed.
Commentary
This decision is a triumph of judicial common sense that essentially comes down to the important difference between possibility and speculation. These two words are often used interchangeably in everyday language but the difference between them in a legal setting is extremely important to recognise.
A possibility must have some (even if very weak) evidence to support it. A possibility is something that could be true based on some evidence. Speculation is the act of forming a theory or opinion without any evidence, essentially it is just a posh word for making a guess.
This approach to the scope of the inquest here, where Art 2 might have been be engaged, reflects what Dyson LJ said in the Court of Appeal in Allen about possible causation being the touchstone (see here)
“As I have said, the coroner was only obliged to investigate those issues which were, or at least appeared arguably to be, central to the cause of the death. I cannot accept the submission of Mr Thomas that causation is irrelevant in an article 2 investigation… The investigation is directed to seeing whether there has been at least an arguable breach of article 2. It is implicit in such an investigation that what is being investigated caused or may have caused or contributed to the death. Otherwise the link between the investigation and article 2 is severed.”
In other words ‘How’ will govern the limits of a coronial investigation in all cases, and whilst ‘how’ must of course include possibly causative shortcomings it does not include things that have a merely speculative association to the death .
The judge did not need to consider the other elephant in the courtroom – the more complex question of whether or not there was any evidence to find that Mr McMahon was culpable in Ms O’Brien’s defenestration. The inquest is yet to examine that issue, but the Coroner, clearly correctly, held that issue to be in scope. The injuries found on Ms O’Brien are some evidence that must allow for that possibility she was pushed out the window, which is now to be further explored at the inquest hearing. Mr McMahon’s involvement in events does not, on these facts, seem to be mere speculation.
Your blogger has, however, been told that this case is now subject of an application for permission to appeal to the Court of Appeal, so it may be some time before that most important causation question can be answered.
Footnotes
[1] R(Morahan) v HM Assistant Coroner for West London [2022] EWCA Civ 1410