R (Makki) v South Manchester Senior Coroner and Molnar [2013] EWHC 80 (Admin)

Yousef Makki was only 17 when he died as a result of a single stab wound to the chest from a flick-knife which had been wielded by another 17-year-old, Joshua Molnar during a confrontation.

When Molnar was acquitted of homicide by a criminal jury the Senior Coroner decided to hold an inquest examining the circumstances of the death. After hearing five days of evidence the coroner concluded that there was insufficient evidence to determine whether the killing had been lawful or unlawful, and so returned a narrative conclusion indicating that Yousef had died from “complications of a stab wound to the chest. The precise circumstances in which he was wounded cannot, on the balance of probabilities, be ascertained.”  This narrative finding was, to all intents and purposes, an open conclusion.

There is nothing wrong with a coroner being left profoundly unsure at the end of an inquest. A coroner who has ‘striven hard’ to make a finding about the key issues and who explains the basis for arriving at the conclusion that it is not possible to make findings one way or another, will not be criticised for returning an open finding as a result. But the coroner must at very least explain properly why they have come to that position. In this case, however, the difficulty the Administrative Court identified was that the Coroner’s reasoning for her determination was not at all clear. As a consequence the inquest was quashed and is now to be heard again.

Dillon v Assistant Coroner For Rutland & N Leicestershire [2022] EWHC 3186 KB (Admin)

Challenging a Coroner’s refusal to issue a report to prevent future deaths (‘a PFD report’)[1] is always going to be an uphill struggle. Whilst there is no coronial discretion, and a report is mandatory, if a coroner determines action should be taken to prevent a risk of future deaths continuing, the Divisional Court has now made clear that before coming to that position there is a significant subjective element.

Before the duty to issue a PFD report arises, first, there must be a concern (arising from the investigation) that circumstances creating a risk of other deaths will occur or continue in the future. Secondly, and significantly, the Coroner must have formed the opinion that ‘action should be taken’ to prevent that risk of death.

The Coroner must act rationally in coming to the opinion held, but different coroners could reasonably come to opposite opinions on the same facts without either being wrong to do so. In other words, there is no single, objectively correct answer to the question raised by the second criterion in any particular case.  It is, therefore, no surprise that the Claimant’s challenge failed in this case.

It is now six years since Singh J and the Lord Chief Justice considered the relationship between Accident Investigation Branch investigations (Rail, Air & Marine) and coroners’ inquests in ‘the Norfolk case’.[1] In that instance the issue was whether a coroner had the power to order the Air Accidents Investigation Branch (“AAIB”) to disclose a cockpit voice and flight data recorder. The Divisional Court said ‘no’. But that’s not important right now…

What was more interesting was what Singh J[2] said about a coroner – who was not an expert in the field – not being required or permitted to “go over the same ground” as an AIB. Lord Thomas agreed and bemoaned the tendency “for different independent bodies … to investigate, either successively or at the same time, the same matter.” He concluded that, if coroners did not defer to AIBs which had the greatest expertise, then public money would be wasted. In the absence of “credible evidence that the investigation into an accident is incomplete, flawed or deficient” then a coroner had no business re-investigating matters covered by the independent investigation of the AAIB.

What then should a coroner do in these circumstances? According to Lord Thomas either: (a) adjourn pending publication of the AIB report or (b) proceed on the assumption that the reasons for the crash will be determined by that report and the issue treated as outside the scope of the Inquest.

R (Morahan) v HM Coroner for West London and others [2022] EWCA Civ 1410

After a flood of Article 2 decisions in the past few years many will be relieved to learn that the Court of Appeal have firmly rejected the challenge in Morahan (so there is no new law to get to grips with), whilst at the same time sending out a stern message to lawyers that these Article 2 arguments are getting out of hand!

We should remember that “an inquest remains an inquisitorial and relatively summary process. It is not a surrogate public inquiry. ”  Inquests are becoming increasingly legally complex which the Court deprecated as leading to “lengthy delays….a substantial increase in the length with associated escalation in the costs of involvement in coronial proceedings”.

Additionally, the implications of Article 2 engagement are limited – whether it is engaged or not the scope of the inquiry will be the same. The availability of legal aid is the main driver for applications for Article 2 engagement but that should not affect the Court’s determination of the law.