A potential murder revealed: Should the cumbersome s.13 process still be necessary?

Written by: Bridget Dolan KC
Published: 16 January 2019

Re: The inquest into the death of Helen Bailey [2018] EWHC 3443 (Admin)

It is “elementary that the emergence of fresh evidence which may reasonably lead to the conclusion that the substantial truth about how an individual met his death was not revealed at the first inquest, will normally make it both desirable and necessary in the interests of justice for a fresh inquest to be ordered”. So stated the Lord Chief Justice when ordering the fresh Hillsborough Inquests[1].

It might then be thought that a Senior Coroner overturning their own (or their predecessor’s) inquest on the grounds of significant fresh evidence pointing to the death being a homicide would be a simple process: after all the Coroner is hardly likely to have misjudged the importance of that new evidence recently revealed. Yet the cumbersome requirements under s.13 Coroners Act 1988 mean that a Senior Coroner who believes that justice requires a fresh inquest must still follow the time consuming two stage process of, first, applying to the Attorney General’s Office for permission to make an application[2] and once that permission is inevitably granted, follow a second and separate process of making an application to the High Court.

Costs against Coroners: being “neutral” means staying neutral, a partisan Coroner risks an adverse costs order.

Written by: Cecily White
Published: 14 December 2018

R (Paul Worthington) v Senior Coroner for Cumbria [2018] EWHC 3386 (Admin)

Many will recall the much publicised judicial review brought by the Adath Yisroel Burial Society[1], which led to the Senior Coroner for Inner North London’s “cab rank” burial policy being quashed. When it came to costs, the Court held that the Coroner had “crossed the line” from merely seeking to assist the Court on aspects of law and procedure into arguing the correctness of the decision under challenge. At that point she was no longer protected by the general rule that coroners who remain neutral in judicial review challenges to their decisions should not be held liable for the applicant’s costs[2]. Partial costs were awarded against her.

Even ‘neutrality’ in the face of an inevitably successful application will not necessarily mean costs will be avoided if the Coroner behaves unreasonably. In Hopkins the Swansea Coroner unreasonably refused to sign a consent form when the bereaved family’s s.13 application was clearly bound to be successful. The Coroner was ordered to pay all the applicant’s costs from service of the claim[3].

In another much discussed case this year of Maughan[4] (concerning the lawfulness of the Coroner’s directions on the standard of proof for suicide) the Coroner advanced reasons why the guidance on which his directions had been based was “arguably correct”, yet was said to have maintained a “neutral stance” – perhaps hoping to avoid the potential adverse cost consequences of losing the claim (although the outcome was a score draw and the judgment does not suggest that any application for costs was made either way).

The defendant Coroner in the recent Poppi Worthington case[5], through his counsel, sought to maintain that he too was taking a “neutral stance”. The three judge Divisional Court (which included the Chief Coroner) disagreed, observing that the Coroner had, in practice, sought to persuade the Court that the claim should be refused.

“Both parties clearly sought to persuade us, to the best of their considerable ability, that their submissions should be preferred.”

The Court noted that, despite the Coroner’s asserted ‘neutrality’, had the claim been successful, the Claimant would have been entitled to his costs against the Coroner.

Poppi Worthington’s abuser fails to remove an account of his acts from the Record of Inquest

Written by: Bridget Dolan KC
Published: 13 December 2018

R (Worthington) v Senior Coroner for Cumbria [2018] EWHC 3386 (Admin)

When public funding for deserving families at inquests is so hard to come by it is mystifying how the Legal Aid Agency can make a decision to spend their limited funds on an apparently unmeritorious challenge to inquest conclusions by one who was involved, in the most appalling way, in the circumstances leading to the death of the deceased.

In the Worthington case, the acknowledged motivation of the abusive father in bringing his challenge was to try to hide his actions in the lead up to his daughter’s death from those who might look at her Record of Inquest (ROI) in the future, yet his claim was brought with the benefit of public funding.

Poppi’s death

The account of how Poppi Worthington met her death is an extremely sad and disturbing story. Poppi was 13 months old when she died at her home. When Mr (now Lord) Justice Peter Jackson considered this case in the family court proceedings in 2014 and 2016[1] he concluded that in the hours before Poppi’s death, the Claimant, her father, had perpetrated a penetrative anal assault on her, either using his penis or some other unidentified object. Poppi died shortly afterwards from a cause which the Judge was unable to ascertain.

The fresh inquest held in 2017[2], revisited the issue of whether Paul Worthington had sexually assaulted Poppi prior to her death and, if so, whether that had caused or contributed to her death. In a detailed document of over 100 pages the Coroner set out his reasoned factual findings on the extensive expert and factual evidence. He concluded that Paul Worthington had anally penetrated Poppi in his bedroom and then left Poppi to sleep beside him in such a position that her breathing was compromised, either due to the position of the bedclothes, her position within the bed, or overlaying, or a combination of all three. The anal penetration had not caused her death. Rather, the Coroner concluded that Poppi had died from asphyxia resulting from obstruction of her airways whilst she was asleep in her father’s bed.

The Judicial Review claim

Paul Worthington specifically accepted that the Coroner was required to make a finding of fact as to whether a penetrative assault had occurred. He did not challenge that finding. Indeed he could hardly have done so given that a High Court judge had twice previously come to a similar conclusion about his despicable abuse of his baby daughter.

Mr Worthington’s complaint was that the Coroner had recorded in box 3 of the Record of Inquest[3] that:

“…at some time after 2.30am, [Poppi] was taken from her cot to a double bed where she was anally penetrated. She subsequently went to sleep in the double bed with an adult sleeping close to her… her ability to breathe was compromised by her unsafe sleeping environment…”

Mr Worthington judicially reviewed the Coroner’s conclusion. His case was that the words above in italics trespassed into the wider circumstances of the death in a way that was not permitted in a non-Article 2 inquest. As the anal penetration had not caused Poppi’s death, he argued it could not be relevant to “how” she died, and so should not have appeared on the Record of Inquest.

The Grenfell Tower fire ‘Preventing Future Deaths’ report: the breadth and the limitations of PFDs.

Written by: Amy Street
Published: 21 November 2018

The Senior Coroner for Inner West London, Dr Fiona Wilcox, has made a report to prevent future deaths[1] (a “PFD report”) in connection with her investigation into deaths following the Grenfell Tower fire. Her report, issued on 19 September 2018, is a good illustration of the potential breadth of a coroner’s powers: the report focuses not on fire safety but on future health screening and support for those survivors and others who now face the physical and psychological consequences of their involvement in this tragedy.

The Senior Coroner’s concern is that some survivors and responders at the scene may have been exposed to significant inhalation of smoke and dust containing toxic substances, and so are left at risk of developing health conditions. Furthermore, many of those affected by the incident have suffered emotional trauma and harm to their mental health and need appropriate mental health support. Her report, directed at NHS England, is aimed at minimising the risk of affected persons slipping through the net and being lost from appropriate supportive services.

However, as the earlier coronial report in 2013, following the worryingly similar events in the Lakanal House Fire chillingly reminds us (see earlier commentary here), these coronial reports have little teeth.

“There is no coronial power in relation to the content, adequacy or implementation of the response to a PFD”

Despite the breadth of the power to make a PFD report, they are only reports, there is no mechanism for implementing or enforcing the recommendations implicit in such PFD reports, and no systemic approach to maximise their effectiveness nationwide.

Article 2 inquests and the burden of proof when the answer is “there is no answer”

Written by: Bridget Dolan KC, Ian Skelt KC
Published: 12 November 2018

In the matter of Hugh Jordan [2018] NICA 34

As the ongoing Maughan[1] litigation focuses minds on the standard of proof applicable for a suicide finding at an inquest, it is perhaps surprising how little thought is given to the issue of the burden of proof at an inquest. However, in the latest episode in the long running saga of the inquest into the death of Pearse Jordan, the Northern Ireland Court of Appeal has added some clarity to the position by recognising that there can, in some situations, be a burden of proof even in an inquisitorial setting. Nevertheless, determining factual issues in inquests will, sometimes, not be possible.

Burden? Standard?

First, a quick reminder of your second day of evidence lectures at law school:

Standard of proof: the level of evidential certainty required to establish a fact.
Burden of proof: the obligation on a party to adduce evidence to establish a fact.

Of course I hear you say, even a law school fresher would know there is no burden of proof within inquisitorial proceedings! Surely the clue is in the name? An ‘inquiry’ asks questions and establishes facts, but it does not require anyone to prove or disprove anything. An inquiry has no parties; no one has a formal case to put or a case to meet.

But just as the Maughan case (blog here) has reminded us all that assumptions are often the errors we don’t realise we are making, the NI Court of Appeal now tells us we would be wrong: when Art 2 is engaged there can be a burden of proof in an inquest – one to be discharged by the state.