R (Bailey) v Secretary of State for Justice [2023] EWHC 821 (Admin)

A challenge to the Secretary of State for Justice amending the Parole Board rules and issuing guidance about those changes is not obvious bed-time reading for those who work in the coronial jurisdiction.   But hidden within the series of judgments arising from this JR claim is a little nugget that inquest practitioners might wish to note and bear in mind regarding the consequences of a witness refusing to answer questions put to them at an oral hearing.

The Issue

The Divisional Court was asked to consider whether the Secretary of State for Justice was entitled to amend the Parole Board rules to prohibit staff employed or engaged by HM Prison and Probation Service (HMPPS) from expressing a view in their evidence to the Parole Board on the question of whether a prisoner was suitable for release or transfer to open conditions.  The amended rules would, for example, prevent a prison psychologist giving an opinion or making a recommendation that might assist the tribunal considering an individual’s continued detention.

The Court concluded that the Secretary of State for Justice had overstepped the mark by trying to prevent prison staff giving their view on ‘the ultimate question’ of a prisoner’s parole. The amendment, being an interference with the independent judicial determination of the legality of detention, was declared unlawful.

An important ancillary question that then arose was whether the guidance issued by the Secretary of State had induced HMPPS staff to commit contempt of court by refusing to express their opinion to the board when requested of them.  This of course turned on whether a failure by HMPPS staff to answer a relevant and necessary question posed by the Parole Board during proceedings could properly constitute a contempt.

Bell v HM Senior Coroner for South Yorkshire, King’s Bench Division (Administrative Court) 21 March 2023, [2023] 3 WLUK 342

Hot on the heels of his decision as part of the appellate bench in Dove[1] last week, comes another foray into the question of the extent of the scope of an inquest into a likely suicide. The view expressed by William Davis LJ was very different on a different set of facts.

Here the claimant, rather ambitiously perhaps, sought a fresh inquest into his sister’s death some 30 years before. Her cause of death and what had happened to bring the death about were clear and not disputed. In December 1991 his sister (‘A’), who had suffered with poor mental health for some years, had stepped into the path of train leaving a final note for her family in her pocket. The inquest jury (as was required for a railway death in 1992) had applied the criminal standard of proof to suicide and returned an open verdict.

The claimant of course anticipated a likely suicide conclusion at any new inquest (now that only the civil test for the degree of certainty would be required) but what led him to seek a new inquest was (like the Claimant in Dove), that he wanted the cause of A’s distressed state of mind on the day that she died to be explored. The claimant considered that there was now fresh evidence going to that issue, and he urged the court to grant a fresh investigation and inquest into her death to look deeper into what had led A to behave as she had done.

A fresh inquest may of course be ordered where new evidence comes to light suggesting that the substantial truth of how someone came by their death has not been revealed. In Dove the Court of Appeal (including William Davis LJ) had found that new expert evidence which might elucidate why the deceased had taken her own life would justify a fresh inquest to explore that issue further. But here the basis for the application was not fresh evidence, but fresh speculation.  The facts now relied upon had been known to the deceased’s mother at the time of her death, and her mother had thought them not at all relevant to her death when she gave evidence at the first inquest three decades before.

The only basis on which a fresh inquest could be ordered under s.13(1)(b) was the discovery of new facts or evidence. As William Davis LJ made clear that did not mean any evidence: there had to be cogent evidence and inexpert speculation could not meet the statutory test.

Dove v Assistant Coroner for Teesside [2023] EWCA Civ 289

In Middleton[1] the House of Lords considered that a coroner determining ‘how’ a person died in a non-Art 2 inquest need only determine ‘by what means’ they died and not the broad circumstances .  But what does ‘by what means’ actually mean?  The answer seems to be, as Alice found in Wonderland:

“When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’  ‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’  ‘The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.”[2]

It seems, from this most recent decision of the Court of Appeal, that coroners are still to be the master^[3] of the scope of their own inquest, but when deciding what ‘by what means’ means, causative relevance and the interests of justice must be their guide.

The Senior Coroner for Plymouth, Torbay and South Devon has issued five ‘Prevention of Future Deaths’ (‘PFD’) reports (see here) calling for “root and branch reform” of firearms legislation and training following the shooting of seven innocent people by Jake Davison with a legally-held shotgun in Plymouth in 2021.

The Senior Coroner, Mr Ian Arrow, concluded the five-week inquests into five victims’ deaths in February 2023 at which the jury not only found “catastrophic failures” by Devon and Cornwall Police but also noted confusing Home Office Guidance. The jury recorded a “serious failure at a national level” by the government, Home Office and National College of Policing to implement the recommendation from Lord Cullen’s Report in 1996 arising out of the fatal shootings in Dunblane. The jury considered that “a lack of national accredited firearms licensing training has, and continues, to fail to equip police staff to protect the public safety.”

‘Abject failures’ have persisted for 27 years

The Five PFD reports are variously directed at the Home Secretary, Suella Braverman MP, Chris Philp MP, the Minister of State for Crime, Policing and Fire, as well as all Chief Constables in England and Wales and, unusually, the Lord Chief Justice in respect of judicial training regarding firearms appeals.

In his report directed at the dearth of adequate training Mr Arrow notes that, since Lord Cullen’s 1996 recommendation regarding the need for training after Dunblane, there have been two coronial PFD reports issued following shotgun killings (by the  Senior Coroner for Durham in 2013 and Senior Coroner for Surrey in 2019) both of which highlighted the absence of training. This still has not led to adequate training being available to firearms licensing staff.

“Over the past 27 years, there has been an abject failure to ensure that nationally accredited training of firearms licensing staff has been developed and its currency maintained…..If any lessons had been learned in the aftermath of earlier tragedies, they have been forgotten and that learning had been lost.”

R (Police Officer B50) v HM Coroner for East Yorkshire and Kingston Upon Hull [2023] EWHC 81 (Admin)

This case raised two very different questions of ‘safety’.

The first, to be decided by police firearms officers:

A man was in the street carrying an axe and walking with purpose. Police were aware the man had at least some mental health illness. He had not injured anyone, or directly threatened anyone. But he did not stop when police asked him to, or indeed after they Tasered him.

How close should police let a mentally ill, unpredictable man with an axe get to other persons on the street? To what extent should police risk their own safety, getting close enough to disarm him? For how long was it safe to permit this scenario to run?

Officer B50 ultimately discharged his firearm into the man’s back. The bullet hit him, but he did not stop. B50 shot a second time, again in the man’s back, and then wrestled him to the ground. Sadly the man died.

The second question of ‘safety’ was for the coroner, and ultimately the Divisional Court:

Was it safe to leave to an inquest jury the option of a conclusion of unlawful killing?