R (Glaister & Carr) v HM Asst Coroner for North Wales. [2025] EWHC 167 (Admin) (here)
The decision whether and how to leave an unlawful killing conclusion for the jury in respect of a 16 year old falling from a mountainside on an explorer scout weekend overseen by volunteer scout leaders was always going to be both complicated and controversial.
When there needed to be a third go at holding the inquest – the first jury having been discharged after the court was misled, and the second inquest also being abandoned for material non-disclosure (with an IP later apologising to the bereaved in open court for its lack of sensitivity and the defensive stance it adopted), the writing may have already been on the wall that this case was rather extraordinary.
When you also learn that the inquest eventually involved 32 days of hearings, topped off by the coroner holding a court hearing on a Sunday to deal with legal submissions, before taking two days to deliver his summing up, handing 20 pages of written directions to the jury, then you may feel little surprise that this case ended up in the Admin Court for a second time challenging the conclusion. (For the first trip to the Admin Court see our earlier blog here)
The resultant judicial review decision will not disappoint those who love delving into legal complexity. Any coroner or inquest advocate grappling with applying the elements of gross negligence manslaughter in a coronial setting and who therefore needs to understand: (i) the Adamoko criteria[1] ; (ii) the Broughton threshold[2] ; (iii) the Kuddus chance of risks[3] ; and (iv) the Rose trap[4] (v) along with its ‘flags’, will certainly benefit from reading the first 38 pages of Fordham J’s decision it in its entirety.
Spoiler Alert: the Coroner got it right: his 15 pages of Written Legal Directions for the jury, plus 5 more pages of a ‘Route to Conclusions’, were not perfect, but they were good enough. There was not, as the Claimants’ suggested, only one objectively correct form of wording by which to articulate the potential breaches of duty here. On one possible view of the facts, there was evidence on which a properly directed jury applying the civil standard could properly come to a conclusion of unlawful killing.
However, for the rest of us, who have things to do this weekend (and so are not intending to be in court dealing with legal submissions from a 7 week case on our precious Sunday off), there are still some other interesting and very useful nuggets right at the end of this judgment regarding identifying individuals on a Record of Inquest (’ROI’). So you might want to just skip quickly over those first 38 pages and have a look at paras 79-83 of this decision, where the judge deals with a much less esoteric point on law: Whether it was lawful that the jury’s conclusion of unlawful killing was accompanied by an identification – albeit other than by name – of the persons against whom that finding was made.
Identifying the perpetrator of an unlawful killing by their role
As most readers will know s.10(2) CJA 2009 prohibits the determination of how, when and where the deceased came by their death being “framed” in such a way as to determine – or “appear” to determine – any question of criminal liability on the part of a named person or civil liability.
Off the back of this statutory prohibition it was argued for the Claimants that a coroner (or in this case the jury) was obliged to have avoided so far as possible, identifying the two people said to have been responsible for the unlawful killing, even by reference to their role. And so, it was said that, in the present case, the jury’s describing the individuals found to have been responsible by the phrase “the Explorer Scout Leader and Assistant Explorer Scout Leader” on the ROI should be quashed and deleted from Section 4.
Fordham J was having none of it. As the Court of Appeal previously recognised in Hambleton[5] there are inquests “where the identity of the person or persons responsible for the death are known and not in doubt, indeed such people may be interested persons at an inquest” and that “the conduct of known individuals will usually be under scrutiny.” As the judge explained, when an inquest jury makes a factual finding of ‘unlawful killing’ that jury is not making a determination of any question of criminal liability on the part of anyone, named or otherwise. In the same way, although elements of gross negligence manslaughter would be sufficient ingredients for civil liability, and although they are evaluated on the civil standard, the jury is not actually making a determination of any question of civil liability by returning an ‘unlawful killing’ conclusion.
As anyone who attends an inquest will know, a jury will often be directed by the coroner to apply elements of a crime or a tort to an identifiable individual where that is a necessary part of the jury’s required deliberation and reasoning. But the jury conducting that mental exercise on the way to a factual conclusion is not the same as recording civil or criminal liability as their factual conclusion. An inquest finding that someone was unlawfully killed does not determine criminal or civil responsibility at all.
The law does not mandate ambiguity
Furthermore, the judge pointed out that Part 3 of the ROI records findings of fact and so might appropriately identify actions and inactions of identifiable individuals by reference to their role. By doing so “the law does not mandate ambiguity. Rather it allows clarity.”
Here if the jury had found unlawful killing in respect of one of the Claimants, but not the other, they would not by law be required to indicate that it was one of them but not say which one. Section 10(2) permitted individual’s roles to be described. Any other construction would require the jury to indicate ambiguity. Indeed, if the claimants’ submissions were correct then that enforced ambiguity would undermine the public interest in making public findings about a death, and undermine fact-finding role of the inquest that should, fully and fearlessly, discern and record fact and truth.
Comment
The only other case to grapple with the naming of ‘perpetrators’ on the ROI is a permission decision (so without precedent effect) under the previous Coroners Act 1988. In My Care (UK) Ltd V HM Coroner For Coventry [2009] ILR 285, [2009] EWHC 3630 (Admin), both Blake J (on the papers) and Langstaff J (at a renewal hearing) refused permission to bring a Judicial Review claim where the Claimant, a limited company, complained that naming My Care in a ‘prevention of future deaths report’ when put alongside the findings on the ROI (that did not explicitly name My Care Ltd), was in effect wrongly attributing civil liability to that company.
That claim was not even considered arguable. As Langstaff J said, there is an important distinction between a suggestion of responsibility in a causative sense being recorded on the ROI, and an actual determination of civil liability. The judge’s view was that the Coroner could even have lawfully named My Care on the ROI had he chosen to do so.
As a matter of law there is no prohibition on naming an individual other than the deceased as part of the conclusion on a Record of Inquest unless to do so appears to determine criminal liability. Where there have been shortcomings in the care of the deceased an individual involved, or their employer, may be named on the ROI without infringing s.10 CJA. Even though, it is generally the custom and practice for coroners not to do so.
Fordham J’s decison here takes My Care a step further. If recording that an individual has perpetrated an unlawful killing (on the balance of probabilities) on the ROI is not a finding of criminal liability then there would be no bar to recording their name either. In most cases however there is no need to do so. As the Chief Coroners Bench Guidance (Chapter 15 at §101) reminds us “an inquest is only required to record answers to the statutory questions. When recording how the deceased came by their death, the identity of a party whose conduct may be impugned is not a question that an inquest is required to record on the face of the ROI.”
However it is now unarguable that recording the role of the perpetrator of a death will fall squarely within the law, and there may be very good reason to do so if ambiguity would otherwise arise.