How to go about challenging a PFD report: Not by Judicial Review

Written by: Bridget Dolan KC
Published: 10 October 2017

R (Dr Siddiqi and Dr Paeprer-Rohricht) v Asst. Coroner for East London [2017] Admin Court CO/2892/2017

Making a report that may prevent future deaths (a ‘PFD report’) under reg. 28 of the Coroners (Investigation) Regulations 2013 is an important but often misunderstood coronial power.

The issuing and receipt of a PFD report entails no more than the Coroner bringing some information regarding a public safety concern to the attention of the recipient. A PFD report is not punitive in nature, despite some interested persons construing it as such. It engages no civil or criminal right or obligation on the part of the recipient other than the obligation to respond to the report in writing within 56 days. The nature and content of that response is wholly a matter for the recipient. In their response the recipient can choose to agree or disagree with matters within the report or rebut any determination of the facts that is expressed by the Coroner. The recipient can object to or accept the invitation within the PFD report to take action, and could even choose to respond by expressing the view that no action is required to allay the Coroner’s unwarranted concerns.

The appropriate remedy for those wishing to take issue with the content of a PFD report is to respond to the report.

Against that background it is unsurprising that a recent attempt to Judicially Review a Coroner’s decision to issue a PFD report has fallen at the first hurdle

Should Senior Coroners need to seek the Attorney General’s permission under s.13?

Written by: Bridget Dolan KC
Published: 6 October 2017

Re HM Senior Coroner for North West Wales [2017] EWHC 2557 (Admin)

When unidentified human remains were found on a Welsh beach in 1994 the cause of death was unascertained: the inquest returned an open verdict with the deceased unknown. However, tissue samples had been retained and advances in forensic science had recently allowed a DNA profile match to the brother of a woman who had disappeared in 1994. The circumstantial evidence strongly indicated that the deceased was his missing sister.

It must have been beyond question that these new facts and evidence made a further inquest that would now properly identify the deceased both necessary and desirable in the interests of justice. The problem facing the Senior Coroner was that because an inquest had already been held the coroner was “functus officio” and had no power to quash the original inquest.

The cumbersome mechanism under s.13 Coroners Act 1988 for quashing a previous inquest now had to be followed to allow a fresh investigation to commence under s.1 CJA 2009. This involved the Coroner first making an application to the Attorney General, waiting for his authority to be given (under a fiat) before an application to the High Court under s.13(1)(b) could be made.

Is it seriously considered that a Senior Coroner’s own application will ever be unmeritorious?

It is no surprise that the A-G, followed by Lord Justice Treacy and Mr Justice Dingemans all readily agreed to a fresh inquest being held. Perhaps the only surprise is that it required a Divisional Court of two judges to consider the matter.

This case is yet another example of time and money being unnecessarily spent before the obviously correct thing can be done. A s.13 application to the High Court can only be made “by or under the authority of the Attorney-General”. It is not unknown for obtaining that permission to take over 4 months in the most simple and clear of cases.

Permission stages in court applications, such as the fiat required here, are of course a good mechanism for weeding out frivolous, ill-founded or unmeritorious applications at an early stage. But is it seriously considered that a Senior Coroner’s own application will ever be unmeritorious? The delay inherent in the fiat process merely extends the waiting for families and increases administrative costs for coroners. The time must have come for revision of the legislation so that a Senior Coroner no longer needs the Attorney General’s permission to make a s.13 application.

Is it the right body ? Coroners’ investigatory duties after inaccurate post-mortem reporting.

Written by: Bridget Dolan KC
Published: 12 September 2017

R (Heinonen and Sawko) v Senior Coroner for Inner South London [2017] EWHC 1803 (Admin)

It is often distressing for a bereaved family to contemplate their loved one being subject to a post-mortem examination, even in the context of a wish to have the cause of their death explained. When the resultant autopsy report contains an inaccurate physical description of the deceased, that thereafter remains unexplained, it is unsurprising that a family would seek further investigation of the matter by the Coroner.

However, in a case that provides a clear reminder of the high hurdle claimants must surmount to establish that a coroner’s decision is unreasonable (in the Wednesbury sense), the Administrative Court has upheld this Coroner’s refusal to open an investigation under s.1 CJA 2009, even though significant discrepancies between the description of the body examined and the deceased’s physical characteristics remained unexplained and further avenues that might have more firmly established the identity of the body had not been explored.

“I hope that an apology and some explanation as to how it came about will be forthcoming, I have no power so to order. I can merely express a hope that that will happen in due course”. – Andrews J

When giving Inquest evidence may cause distress to a vulnerable witness

Written by: Bridget Dolan KC
Published: 5 September 2017

R (Maguire) v Assistant Coroner West Yorkshire [2017] EWHC 2039 (Admin)

The horrific murder of Mrs Ann Maguire, a school teacher stabbed in her classroom by a 15 year old pupil, justifiably shocked the Nation. Now that William Cornick has pleaded guilty to her murder (and been sentenced to a minimum of 20 years’ detention) Mrs Maguire’s inquest will be resumed; but first the controversial issue of whether some of the school’s pupils tangentially caught up in the events should be called to give evidence at the inquest has had to be resolved.

“The distress of a young witness is not necessarily a reason why that witness cannot or should not give oral evidence.”

Following the murder some pupils had revealed in police interviews what they knew of Cornick’s actions in the period before the killing. These “interviewed pupils” reported how Cornick had at times behaved strangely, making morbid or sick jokes. He had expressed a wish to kill teachers and very shortly before the killing made specific statements about killing Mrs Maguire. Only one pupil had reported this behaviour to a teacher, but by then the murder had just been committed. Most of the other pupils did not take the threatening remarks seriously and so did not report them, assuming he was merely showing off. The one pupil who did take the threats seriously said nothing out of concern that if he did so it may provoke Cormick to attack him. After the killing that pupil had reflected “It’s like I could have stopped it. I did nothing.”

The Claimants (her widower and other members of Mrs Maguire’s family) wanted these “interviewed pupils” called so that the inquest could hear evidence as to the students’ understanding of the school rules relating to weapons in school and whistleblowing, and, for those who had taken no action, to explain why this was. The Claimants emphasised they did not seek to ascribe any blame or criticism to any pupil, but rather wished to minimise the risk of any similar horror occurring in the future. They wanted the inquest to explore lessons to be learned as to how children might be encouraged and supported to share concerns with trusted adults.

Self inflicted deaths in prison: “Something must be done” – but what?

Written by: Bridget Dolan KC
Published: 30 June 2017

R (Scarfe & Ors) v Governor HMP Woodhill & SoS Justice [2017] EWHC 1194 (Admin)

HMP Woodhill has achieved the unenviable status of having the highest rate and the highest number of self-inflicted deaths of any prison in the entire prison estate. Thirteen men have died there since 2013 at their own hand, seven of those in the last year. The eleven inquests that have recently been held in the Milton Keynes Coroner’s Court have produced several critical jury findings and a number of PFD[1] reports yet the alarming death rate has persisted.

It is unsurprising then that the families of some of the deceased, believing effective changes have not been made, turned to the High Court for action. They argued that the High Court should use its public law powers to ensure that the repeated failings noted in these successive cases were no longer tolerated.

The Woodhill Prison Governor and the Justice Secretary made it clear that they shared the great concern of the Claimants, the Court and other commentators (such as INQUEST who intervened in the proceedings) about the rate of suicides in prisons generally, and at HMP Woodhill in particular. The difficulty for the Claimants, however, was establishing the extent to which the identified problems at HMP Woodhill were capable of solution by means of their application for an order or declaration from the High Court.