Flexible Fairness at Inquests

Written by: Briony Ballard
Published: 28 September 2015

Wilson v HM Coroner for Birmingham and Solihull [2015] EWHC 2561 (Admin)

“Fairness in an inquest must be fashioned in an environment where there are no pleadings and in which those given leave to appear as interested persons do not have a case to put. The evidence at inquests often takes an unexpected turn and calls for a degree of flexibility in the procedure to be followed as a consequence. The rules of evidence applied in criminal and civil proceedings do not apply. Questions of fairness to those involved in inquest proceedings must be judged against all these essential features and also in the context that the statutory scheme prohibits a finding of criminal liability on the part of a named person, or of civil liability” – Burnett LJ

Mr Wilson, a consultant cardiothoracic surgeon, applied for judicial review of part of the coroner’s conclusions in relation to the deaths of three of his patients having undergone cardiac surgery at his hands.

Is the s.13 fiat process in the interests of justice?

Written by: Bridget Dolan KC
Published: 23 September 2015

Thompson v HM Assistant Coroner for Durham [2015] EWHC 1781 (Admin)

Kristian Thompson was 19 years old when he died. He was a detained patient in a hospital secure unit under s.3 Mental Health Act. On the day of his death he had suffered an episode of incontinence and went to shower. He was found in the shower, collapsed on the floor with the shower running. He did not recover.

At the inquest in November 2012 the assistant coroner returned an open verdict, recording the medical cause of death as “unascertained“. The pathologist and consultant neuro-pathologist involved in the post-mortem and the consultant physician who had been involved in Kristian’s treatment post-collapse considered two possible causes of death (sudden and unexpected death in epilepsy (‘SUDEP’) and sudden adult death syndrome (‘SADS’). In the absence of an ante-mortem diagnosis of epilepsy the doctors were unable to come to any probable conclusion. However, the pathologist stated that he would alter his opinion on the cause of death if an expert clinician could diagnose epilepsy at any time.

There had been insufficiency of inquiry such that it was necessary and desirable in the interests of justice to hold a fresh inquest.

Revised Guidance on Civil Legal Aid exceptional case funding for Inquests

Written by: Bridget Dolan KC
Published: 7 September 2015

On 20 August 2015 the Lord Chancellor published revised guidance on civil legal aid funding in inquest cases. It takes into account the conclusions of the Court of Appeal in the case of Letts v The Lord Chancellor [2015] Inquest Law Reports 15, and now recognises that there are some categories of case in which the mere fact of death gives rise to a possibility of State responsibility and this suffices to trigger the Article 2 procedural duty to conduct an independent investigation.

The previous guidance had suggested that an arguable breach of a substantive duty had to be identifiable to engage the need for an Art 2 inquest. It is now made clear that there are certain categories of death where the automatic duty arises whether or not the evidence in the case discloses an arguable breach of any of the substantive obligations.

Justice neither done, nor seen to be done, in a secret inquest

Written by: Bridget Dolan KC
Published: 17 August 2015

Senior Coroner for Cumbria v Ian Smith [2015] EWHC 2465 (Admin)

Poppi Worthington, was only 13 months old when she died in hospital in December 2012 having apparently sustained fractures to her leg and other injuries. Yet despite there clearly being reason to suspect that this was a violent or unnatural death, and an inquest already having been held, none of the facts surrounding her death have as yet been made public. Poppi’s inquest in October 2014 took only seven minutes to complete; the Coroner returned an open conclusion and found that her cause of death was ‘unascertained’. It is hardly surprising then that the High Court has now overturned that first inquest and determined that a fresh inquest should be held.

“The Coroner did not give any information about the circumstances leading to the girl’s death. The inquest did not address questions about her welfare, how she was discovered, whether any attempts were made to revive her and whether any public agencies were at fault.”

This case re-emphasizes the duty of coroners to hold their inquests fully in public no matter how difficult the surrounding circumstances. Moreover, that this case had to be brought by the present Senior Coroner against the previous Senior Coroner brings into question whether there should be some simpler mechanism than requiring a Senior Coroner to, firstly, seek a fiat of the Attorney General and, secondly, make a High Court application under s.13 Coroner’s Act 1988 when he or she seeks to put right obvious shortcomings and hold a fresh inquest.

Quashing a Coroner’s Unlawful Comments

Written by: Bridget Dolan KC
Published: 13 August 2015

Dr S v HM Coroner North Yorkshire East [2015] EWHC Queen’s Bench Admin Division, CO/2277/2015, 21.7.2015

Coroners sitting without a jury are now encouraged by the Chief Coroner’s Guidance (no. 17) to deliver a ‘summing up’ in which they state orally, in open court, their key findings of fact before recording their formal inquest conclusions. But what is to be done when the Coroner oversteps the mark and makes unlawful factual findings or comments during this summing up?

The case of Dr S is one recent example of a successful Judicial Review challenge to a Coroner’s unlawful comments about a witness’ probity. However another recent case MRH Solicitor v Manchester County Court EWHC [2015] 1795 raises the question of whether there might be an alternative and simpler mechanism for quashing and striking from the record such findings where the inquest conclusion itself is not challenged.