Today the Chief Coroner published new guidance on Pre-Inquest Review Hearings (PIRHs) and revised guidance on coroner’s conclusions (Guidance No.17 (as amended)).
The newly published guidance on PIRHs reaffirms the guidance already provided in the cases of: Brown v HM Coroner for Norfolk [2014] Inquest Law Reports 91, Shafi v HM Coroner East London [2015] Inquest Law Reports 154 and Fullick v HM Coroner for Inner London North [2015] EWHC 3522. It encourages: PIRHs in complex cases, circulating agendas in advance and, if relevant, advance notification of the coroner’s provisional views on the respective issues.
The amended guidance on conclusions addresses the sometimes hotly contested questions of (1) what, if any, difference remains in law between a non-Article 2 v. Article 2 conclusion (2) whether a non-Article 2 conclusion is permitted in law to be judgmental and (3) is the coroner’s power in an Article 2 inquest to leave to a jury, for the purposes of a narrative conclusion, possible circumstances restricted to only where those findings will assist the coroner in a PFD report?
The amendments are to be found in paragraphs 34 and 50 of the guidance and are reproduced here for ease of the reader:
- Paragraph 34 is completely new. The old paragraph 34 has been merged into paragraph 35. The new paragraph 34 now provides:
“34. In a non-Article 2 case a narrative conclusion should be a brief, neutral, factual statement; it should not express any judgment or opinion. By contrast, a conclusion in an Article 2 case may be judgmental: see paragraphs 51-52 below. The difference in some cases may be slight and not much more than a matter of words. For example, in a non-Article 2 case judgmental words such as ‘missed opportunities’ or ‘inadequate failures’ should probably be avoided. But rather than, for example, saying that ‘There was a missed opportunity when the registrar failed to seek advice from the consultant’, the coroner could say just as effectively: ‘The evidence leads me to find that the registrar did not seek advice from the consultant who was nearby and available at the time and the registrar knew that. The registrar acted on his own.’
- Paragraph 50 has been amended as follows:
“50. The coroner has a power in an Article 2 inquest, but not a duty, to leave to the jury, for the purposes of a narrative conclusion, circumstances which are possible (ie more than speculative) but not probable causes of death: Lewis; LePage. A narrative conclusion may also (but does not have to) include factual findings on matters which are possible but not probable causes of death where those findings will assist a coroner in a Report to Prevent Future Deaths: Lewis. Otherwise, a narrative verdict must only include matters which are ‘causative in terms of the death’ or ‘relevant in terms of causation of death’ or ‘part of the chain of causation that led to the death’.”
As can be seen, the amended guidance now recognises a distinction between narrative conclusions in Article 2 and non-Article 2 inquests in two respects (1) the judgmental nature of the conclusion and (2) the causal connection required to permit inclusion of an issue.
It advises that:
- a narrative conclusion in a non-Article 2 case should be non-judgmental and restricted to matters which were probably causative of death;
- as the requirement in an Article 2 case is to state the means and circumstances of death, a narrative conclusion in an Article 2 case may (1) address contributory factors which do not form part of the immediate means of death and (2) include ‘circumstances’ which may have been causative of death but cannot be shown probably to have been;
- the broader narrative in an Article 2 case may – and in certain cases may have to be – judgmental or critical.
Significantly, the revised guidance also advises that the coroner’s power in an Article 2 inquest to leave to the jury, for the purposes of a narrative conclusion, circumstances which are possible not probable causes of death is not restricted to where those findings will assist a coroner in a PFD report, but rather is a stand alone power to be used depending on the circumstances of the case.