In the matter of an application by Margaret McQuillan for Judicial Review (Northern Ireland) (Nos 1, 2 and 3) [2021] UKSC 55

In the same week that Dominic Raab unveiled his proposals for a new Bill of Rights, Parliament’s intent when it enacted the existing human rights framework has also been the subject of scrutiny by the Supreme Court. In the matter of an application by Margaret McQuillan for Judicial Review, the Court has provided guidance on three key matters: the extent to which the investigative duty under articles 2/3 of the European Convention of Human Rights is engaged in pre-commencement deaths (the ‘Temporal Scope Issue’); when new evidence revives the investigative obligation (the ‘Brecknell Issue’); and how courts assess the independence of investigations (the ‘Independence Issue’).

Nguyen v Assistant Coroner Inner West London [2021] EWHC 3354 (Admin)

Concerns raised about the adversarial nature of some inquest proceedings and the standards of advocacy displayed in Coroners’ Courts have led the Law Society and Bar Standards Board to recently issue new guidelines for all legal professionals practising in Coroners’ Courts. Those guidelines published in September 2021 (available here) spell out the competences to be expected of lawyers by the regulators and the public.

The Chief Coroner has the expectation that ‘coroners will be vigilant in ensuring those before them are meeting the expected standards’.[1] Coroners will be encouraged to address practice that falls short of these competences either during the hearing itself or through raising their concerns with the relevant regulator.

It was not, however, the questioning style of the advocates that was called to account in this most recent application for a fresh inquest under s.13 Coroners Act. Rather, the allegation was that the Assistant Coroner herself had overstepped the mark by raising unduly pressurising questions that at times amounted to speeches during her own assertive questioning of a key witness. Her approach, the Claimant argued, had revealed an inappropriate ‘pro-doctor’ bias.[2]

In the view of the Divisional Court some of the questions raised by the Assistant Coroner were indeed “too assertive, [they] amounted to the setting out of propositions rather than questions, and/or involved several questions and not one, making it difficult for the witness to answer”. Furthermore, some of the coroner’s remarks had been “unwise” and “close to being intemperate”.

Although the Coroner’s approach did not justify a fresh inquest on the grounds of apparent bias alone, the Coroner’s manner of questioning of a witness was, however, “close to the borderline between robustness and unacceptability”. As such it was one of the factors to be taken into account (alongside the emergence of fresh expert evidence that might call her conclusions into question) when the Divisional Court decided in the Claimant’s favour on the much broader question of whether, a new inquest should now be ordered as being desirable in the interests of justice.

Mays v HM Senior Coroner for Kingston Upon Hull & the East Riding of Yorkshire EWHC (Admin)

Witnesses often solemnly, sincerely and truly stumble over the words of the affirmation or oath.  Indeed many may wonder why it is that, when already feeling anxious at being placed in such an unfamiliar situation, they have to start the process of speaking out loud in a courtroom with such a tricky tongue twister. But the witnesses’ vow is much more than some archaic linguistic formality. This solemn promise to tell the whole truth, and not just the parts you want to reveal, sits at the very heart of our coronial inquisitorial system. It is why it should be an obvious golden rule for every witness at every inquest that if you have any question at all in your mind whether or not you should tell the Coroner about some potentially relevant facts, then just speak up.

The Coroner will be best placed to decide if something is or is not relevant and material to their investigation.  As this Divisional Court decision now underlines in red, asking other colleagues what to do and then following their misplaced advice that you need not reveal the full story to the Coroner, is unlikely to be the right course.

Revised Chief Coroner’s Guidance 17: Conclusions & Revised Law Sheet No. 1: Unlawful Killing

As the consequences of the Supreme Court’s decision in Maughan v HM Senior Coroner Oxfordshire [1] were contemplated in the coronial world,  the Chief Coroner promulgated specific legal guidance on how to tackle the new civil standard of proof for unlawful killing (see Law Sheet 6). However that January 2021 guidance has now been formally withdrawn and replaced with revised versions of the pre-existing guidance on narrative and short-form conclusions and an updated law sheet specific to the unlawful killing conclusion.

Amendments were needed as before Maughan was determined it was generally understood that the criminal standard of proof applied to conclusions of suicide and unlawful killing. As the Supreme Court in Maughan has made clear, there is now only one standard of proof in inquests – the balance of probabilities.