It is a very unusual coronial judicial review that has ten interested parties. Here nine of the ten were insurance companies with whom the bereaved widower, Mr McPherson, had taken out ‘excessive’ insurance on his wife’s life before she was found drowned in an indoor swimming pool in their remote holiday accommodation.
Mr McPherson was charged with the murder of his wife. Clearly relevant evidence at the criminal trial, when deciding between innocent and sinister explanations for his wife’s drowning, included: the £3.5 million he was set to claim in life insurance, alongside his multiple lies about his background; his substantial debt; his deletion from his dead wife’s iPhone of some call, SMS, chat and image records; his wife’s ignorance of the existence of some of the insurance policies; the false witness signatures on some policies; and his lies to subsequent insurers about having pre-existing life insurance.
The criminal trial judge (Goose J) concluded in a formal ruling that the most ‘likely’ explanation for the death, when taking account of all this circumstantial evidence, was that McPherson had caused his wife to drown. However, the same judge also found that the criminal jury could not be sure of this when the medical evidence was that the blunt force injuries to her body could equally have been caused by unlawful force or her husband’s rescue and resuscitation attempts. A half-time submission made twelve days into the criminal trial, therefore succeeded.
In the face of a criminal acquittal Ms Leeson’s father’s only remaining hope was that an inquest might fully explore and determine how his daughter came to be in the swimming pool that evening and whether her injuries arose from rescue attempts or from actions far more malign.
That hope was thwarted, however, when the Area Coroner determined that the scope of the inquest would only cover events between the couple’s arrival on holiday and the day of the death, thereby ruling out any evidence about multiple life insurance policies and much of the other circumstantial evidence pre-and post-dating the holiday that had been explored in the criminal trial.
It is perhaps no surprise that a judicial review claim followed that decision.
The Judicial Review case
Mr Leeson’s argued that by adopting such a very narrow scope for his investigation the coroner would be ignoring evidence that was critical to the determination of how Ms Leeson died. The ruling on scope would prevent scrutiny of a whole host of matters that would assist to answer the question of whether Ms Leeson had accidentally fallen into the pool or had been unlawfully killed. As such, the statutory purpose of the inquest would be frustrated, and an inevitable open conclusion would be returned
The coroner did not appear and was not represented at the hearing. Mr McPherson did take part and argued through his counsel that the coroner already had sufficient information to determine whether to return a conclusion of unlawful killing or accident, and that any wider and broader inquiry would be disproportionate and unlawful.
The Court’s ruling
The principles of law here were simple and not in dispute. The determination of the scope of an inquest is a matter for the discretion of a coroner. An inquest is not a trial. It is an inquisitorial process designed to answer the questions in s.5 CJA 2009, including how the deceased came by their death. A coroner must, however, ensure that the relevant facts are the subject of public scrutiny, particularly if there is evidence of foul play. This means that an inquest is not restricted to the last link in the chain of causation. Evidence relevant to answering the statutory questions should fall within the scope of the investigation.
Furthermore, following the case of Maughan[1] the degree of certainty required for a conclusion of unlawful killing would be the civil standard: the balance of probabilities. Evidence of motive may assist in determining whether a conclusion of unlawful killing should be returned.[2]
“..a coroner must ensure that relevant facts are the subject of public scrutiny if there is evidence of foul play”
In the present case the coroner’s ruling restricting the temporal (and therefore evidential) scope of the inquest was therefore not a lawful one. The coroner’s statutory duty was to investigate and uncover the truth about how Ms Leeson came to die. Having resumed the inquest after the acquittal to comply with that duty it was not rational to limit its scope to exclude evidence which was ‘obviously relevant’ to the issue of whether Ms Leeson had suffered an accidental death or had been unlawfully killed.
The evidence relevant to that issue had been summarised by the criminal judge in his ruling on the submission of no case to answer, and in particular included the evidence as to dealings with insurance policies which might make a conclusion of unlawful killing more likely than an accidental death in circumstances where the medical evidence supported either position. For no proper reason the coroner had taken an impermissibly narrow approach to the financial and circumstantial evidence considered at the criminal trial.
The Court therefore unanimously quashed the Area Coroner’s ruling and remitted the matter to be determined by the coroner again.
Commentary
It is a high hurdle to establish that a coroner’s wide decision as to the scope of an inquest is irrational or otherwise unlawful. But here, where the criminal judge had formally stated that a homicide was the more ‘likely’ explanation, when taking account of all the available evidence, it is difficult to see how a coroner could then ignore that evidence when coming to their own determination. The criminal judge’s ruling had made it clear that there was a wealth of circumstantial evidence both from before the holiday and after the death that might assist in determining the statutory questions in s.5 CJA 2009.
That s.10 CJA 2009 prevents a coroner determining criminal liability on the part of any named person, does not justify the coroner’s exclusion of evidence relevant to the key statutory question of how the person died (and whether it was by homicide). Unlawful killing is of course only to be considered to a civil standard, and here, unusually, the coroner had the benefit of a rather large nudge from a High Court judge as to whether that standard might be met on the basis of the circumstantial evidence .
Creative application of r.23
It may have been that the coroner was daunted at the prospect of examining the ‘rooms full of evidence’ mentioned as arising from the criminal trial – but the Divisional Court put forward a nifty solution to that issue. Most of the underlying facts explored in the criminal trial did not appear to be disputed. It was the extent to which those underlying facts made a conclusion of unlawful killing more likely than accidental death that was the issue. The coroner might then use r.23 to limit the live evidence required at the inquest and admit as written evidence the transcripts and documentary evidence already available from the Crown Court trial.
More generally, coroners should be aware that creative application of r.23 can pragmatically and lawfully ease the burden of conducting an inquest. In the Sally Mays case,[3] the Senior Coroner for Hull took just such a sensible and proportionate approach when required to rehear an eight-day inquest. The transcripts of eight days of evidence from the initial inquest were admitted under r.23, and only the fresh evidence discovered since that quashed inquest needed to be tested orally, at a much shorter hearing.
Coroners might therefore note that the use of r.23 to admit a large volume of evidence which has already been tested in court was positively endorsed in this case by a Divisional Court bench that included the Chief Coroner.
Footnotes
[2] R(Secretary of State for Justice) v HM Deputy Coroner for the Eastern District of West Yorkshire [2012] EWHC 1634 (Admin); [2012] Inquest LR 76 at §28. here