R v Kadir [2022] EWCA Crim 1244

Not a true headline – but one we might well see if the coronial world remains as ignorant as this blogger was until yesterday of the requirement to seek approval from a foreign state before hearing any live oral evidence from abroad.[1]

The Court of Appeal[2] have just handed down their decision in a criminal appeal that includes an important reminder (or warning, if you shared my ignorance) that when hearing evidence by a live link from a witness who is in another country, it is necessary to bear in mind the long existing understanding among Nation States that one state should not seek to exercise the powers of its courts within the territory of another state without the permission (on an individual or a general basis) of that other state.

It should not be simply presumed that all foreign governments are willing to allow their nationals, or others within their jurisdiction, to give evidence before a court in England and Wales via a live link.

Indeed, since the 1970s the Hague Convention[3] has recognised this and so established a uniform framework of co-operation mechanisms in order to facilitate and streamline the taking of evidence from abroad in civil and commercial cases by using an International Letter of Request (ILOR) to the state concerned sent by the judicial authority of a contracting State, to the Central Authority of the other State (see here). But of course not all States are signatories to the Hague Convention and even under this convention permission must be sought unless a Contracting State has declared that evidence may be taken under this Article without its prior permission.

Furthermore, it has been persuasively stated[4] that whenever the issue arises in a tribunal about the taking of evidence from outside the United Kingdom, the question of whether it would be lawful to do so is a question of law for that country, whether or not that country is a signatory to the Hague Convention.  In all cases, therefore, what the Tribunal needs to know is whether it may take such evidence without damaging the United Kingdom’s diplomatic relationship with the other country.

The potential damage includes consideration of wider harm to the interests of justice since, if a court or tribunal acts in such a way as to damage international relations with another State, this risks permission being refused in subsequent criminal and civil cases, where evidence needs to be taken from within that State.

Davison v HM Senior Coroner for Hertfordshire [2022] EWHC 2343 (Admin)

There is little new law in an inquest being quashed and a fresh inquest being ordered after new expert evidence has been obtained.  What is particularly unusual in this case is that the independent expert evidence upon which the s.13 application was founded was not obtained by the Claimant, but was sought by Attorney General herself.

Megan Davison (‘Megan’) suffered with ‘diabulimia’, a media-coined term that refers to an eating disorder in a person with type 1 diabetes, where the person purposefully restricts insulin in order to lose weight. When Megan sadly took her own life an inquest held in 2018 concluded that her death was suicide; the Senior Coroner did not consider that he should make any prevention of future deaths (‘PFD’) report. Megan’s family have now been granted a fresh inquest after new expert evidence was obtained by Attorney General regarding diabulimia. That independent expert evidence, which criticised the treatment Megan had received, was the foundation for the Claimant’s successful s.13 application.

Also of interest in this judgment is the Divisional Court’s views on (i) whether a Coroner’s failure to comply with the strict requirements of r.23 is a material shortcoming that would of itself justify a fresh inquest, (ii) whether a new inquest might be justified just to obtain further PFD evidence and (iii) whether a neutral coroner should pay a successful claimant’s costs.  One might also speculate whether the Court’s obiter comments about whether Article 2 ECHR is engaged following a death of a mental health patient in the community might foreshadow the decision soon to be handed down by the Court of Appeal in Morahan.

Devall & Corcoran v Ministry of Justice [2022] EWHC 1608 (QB)

An appeal from a refusal to strike out a civil claim might not look immediately relevant for coronial law, but Mr Justice Soole’s detailed analysis of whether there is at least an arguable Art 2 operational duty to obtain healthcare for someone who was vulnerable but was not in state detention makes essential reading: revealing, as it does, how the boundaries of Article 2 are still being explored as new factual scenarios arise.

The background

The deceased in this case was a 28-year-old man, who had recently been a prisoner but had been released on licence a month earlier.  He was living in an Approved Premises[1] under a night-time curfew as a condition of his licence. On the day of his death the staff had tried to rouse him from his bed several times over a two hour period by clapping their hands and shouting his name and shaking him, but all to no avail.  Despite his family phoning the premises and inquiring after him he was left undisturbed by staff for another four hours. When eventually someone thought to get him some medical attention it was far too late, he was only just alive, and sadly soon stopped breathing. A 999 responder could not revive him, he had died from the natural cause of pneumonia.

A civil claim was brought alleging a breach of the systemic and operational duties under Article 2. It was said that the Defendant had failed to take reasonable operational measures which would have had a significant chance of preventing this death. These included staff seeking emergency medical treatment for him when they were initially unable to rouse him.

The Defendant responded with strike out application, brought inter alia on the basis that Art 2 obligations could not arguably arise in a case concerning the medical care of a person living in the community. When the first instance judge refused that application the Ministry of Justice appealed.

R (Gorani) v Assistant Coroner for West London [2022] EWHC 1593

A complete smorgasbord of complaints were adjudicated upon in this recent High Court decision, with the coroner victorious on every point. There is much in the judgment for the reader to feast upon: the headline tasters served up by the Divisional Court are that –

• The Article 2 general duty is not concerned with individual errors within an adequate system;
• Article 2 being engaged by one aspect of a case does not mean every aspect of the case must be investigated by applying the Art 2 standards;
• A coroner interjecting in counsel’s questioning is not in itself a demonstration of bias by a coroner who is entitled to properly manage the progress of evidence;
• For an error of fact to be justiciable in law it must not only be mistaken, but established uncontentiously and be a material part of the reasoning. Simply disagreeing with a coroner’s conclusions on the appropriate inferences to be drawn from the facts is an inadequate ground for Judicial Review;
• A coroner need not hear any submissions of IPs regarding PFD matters, it will often be helpful to invite submissions, but there is no obligation to do so
• Judicial Officer holders should think twice before they enter the fray. Their reasoning should be apparent in their initial decision and not need explaining to the court in an ex post facto witness statement

Perhaps most importantly this judgment is a reminder that the inquisitorial nature of an inquest means that a coroner is entitled to robustly inquire into the evidence and is not required to blandly accept any witness’ assertion without testing it.

Coroners are entitled to form preliminary views on the basis of the evidence they have read and heard, and to test that against the witnesses’ oral evidence. What were said by the Claimant to be ‘leading questions’ of a witnesses by the coroner, were, in the view of the court, a legitimate approach of seeking to understand a witness’ evidence, by summarising it, testing it and putting it in context. There can be no complaint about a coroner conducting an inquisitorial process asking any such questions. As the court put it “the coroner was obliged to approach the inquiry with an open mind, but not with an empty one”.

R (Patton) v Assistant Coroner for Carmarthenshire & Pembrokeshire ^[1] [2022] EWHC 1377 (Admin)

Consideration of the, still evolving, Art 2 procedural duty in respect of inquests will often demand an intricate analysis of several different strands from judicial precedents that then need to be woven together to establish a nuanced legal tapestry. The difficulty facing the Coroner in this case was that the interested persons had, rather unhelpfully, managed to weave those threads into a complicated web of such knotted complexity in their own submissions that, in ruling on the issue, the Coroner also got himself into a tangle. It required the incisive brain of Mrs Justice Hill to disentwine the arguments and clarify what would be required to engage the Art 2 general systems duty in respect of a vulnerable child who had died in the community.

This is the first judgment on an aspect of coronial law to be handed down by one of our newest High Court judges who not only sat as an assistant coroner but spent a large part of her professional life at the bar appearing for interested persons in inquests. With its helpful exposition of how the general systemic Art 2 duty might potentially arise, Hill J’s judgment provides valuable clarification for all inquest lawyers. For Coroners it is also a useful reminder that you may well need to look further than the arguments being put before you by counsel when coming to your own view on Art 2’s application.

Here the Coroner made a PIRH ruling against the bereaved family’s submissions that Art 2 was arguably engaged. Unfortunately, the submissions before the Coroner focussed on matters which (as Hill J found) were not required for the determination of the Art 2 issue, unnecessarily complicating the picture. It was not necessarily that the Coroner had arrived at the wrong Art 2 decision, but, given the matters he addressed and the limited explanation of the reasons why he had found as he did, the Coroner now needed to go back and make his Art 2 decision all over again with the correct legal test in mind.