R (Wandsworth) v HM Senior Coroner for Inner West London [2021] EWHC 801 (Admin)

Most coroners won’t see any need to take extra care round a swimming pool when a Nicholas Cage film is about to be released, even given the clear relationship between one of Hollywood’s most prolific star’s film appearances and the number of people who die by drowning (see here). Nevertheless, in this recent Judicial Review case, the High Court have felt the need to remind coroners of the important principle in coronial law (sadly without any reference to Mr Cage) that correlation is not proof of causation.

The fact someone lived in a place where asbestos was present was not sufficient to establish that their fatal mesothelioma was caused by inhaling fibres from that asbestos. More is needed before a Coroner can be satisfied on the balance of probabilities, that a potential exposure to asbestos has more than minimally, negligibly or trivially contributed to a death. That the deceased was possibly exposed to asbestos at a particular address, and that asbestos is very often the cause of the mesothelioma that killed them cannot justify an inquest conclusion that asbestos exposure caused the death.

Farrell v Senior Coroner North East Hampshire [2021] EWHC 778 (Admin)

In this strongly worded dismissal of a s.13 application the Divisional Court (including the new Chief Coroner) were perhaps signalling to Coroners that, whilst there may be an understandable wish to placate the bereaved, detailed consideration should be given before lending one’s support to an application for a fiat for a fresh inquest. A fresh inquest cannot be justified simply to allay concerns of a member of the bereaved family, particularly where a reinvestigation would cause unwarranted distress to another.

When a family member raised suspicions of foul play – albeit with no real evidence in support – the Senior Coroner positively supported the application to the Attorney General for a fiat to apply to quash his documentary inquest into a mesothelioma death.[1] That stance was likely to have been influential in the fiat being given.

The Divisional Court have, however, now roundly dismissed the subsequent s.13 application on numerous grounds. Not only because of the lack of any evidence of the foul play being alleged, but importantly also noting that:

• A fresh inquest would cause cost and delay to the coroner’s service.
• It would divert the health professionals involved away from their public service by requiring preparation for and attendance at a hearing.
• The interests of justice do not require a family member be given a platform to air unjustified suspicions.

The principles of open justice and transparency are fundamental to our justice system. They must be cherished and protected as vital to preserve the rule of law. However, a simple legislative oversight at the start of the pandemic has meant that, whilst most other courts increased their accessibility to the public by giving access via remote video platforms,[1] the Coroners Courts became more closed and secretive. All public, including accredited media representatives, have remained banned from watching any online broadcasts of coronial proceedings over the past twelve months.

This absurd position arose when the hastily passed Coronavirus Act 2020 made provision for four new sections to be inserted into the Courts Act 2003 which allow public participation in criminal, civil and family court hearings conducted by video link,[2] but unfortunately (confirming the view that Coroners Courts[3] are the forgotten relatives of the rest of the justice system) the broadcasting of coronial proceedings was overlooked and so wholly omitted from the Coronavirus Act 2020.[4]

With a stroke this unintentional oversight has meant that for the past year neither the public nor accredited journalists have been able to watch any inquest proceedings unless they have been able to persuade a friendly coroner to let them walk into their socially distanced courtroom. Happily, there have now been significant steps taken to correct this position via the Police, Crime, Sentencing and Courts Bill 2021.

In the matter of an Inquest into the death of Patrick McElhone [2021] NI Coroner 1

The coronial world is still coming to terms with the impact of the Supreme Court decision in Maughan and what it will actually mean for inquests in practice. Even following the additional guidance from the Chief Coroner (see our earlier blog here) the twittersphere still reverberates with questions such as how one can be ‘probably unlawfully killed’, whether how inquests are conducted will change if it is now open to return an unlawful killing conclusion in more circumstances, and whether Coroners will be open to judicial review if they fail to use those two words in a relevant case.

Some assistance with how to tread those difficult lines now comes from across the Irish Sea. The McElhone inquest provides a helpful example of how to frame what is (but for a semantic hair’s breadth) an unlawful killing finding within a narrative conclusion without needing to use those precise words.

Indeed, Mrs Justice Keegan has not only provided a tutorial on how to deal with factual findings in an unlawful killing inquest but she also more generally demonstrates how to tell the story of any death in a brief, concise yet comprehensive narrative. Her verdict is so well worked that one doesn’t need to set out much of the background facts of the case here for the reader to understand what went on.