What an Art 2 investigation does and does not require

Written by: Bridget Dolan KC
Published: 22 March 2021

R (Grice) v HM Senior Coroner of Brighton and Hove [2020] EWHC 3581

Will an inquest always be required after a homicide trial when there have been alleged failures by state agents to protect life? In this Judicial Review case Garnham J gives us the answer by summarising the scope of the requirements of an effective Art 2 investigation and, particularly helpfully, setting out what is not required to satisfy the state’s the investigative obligation.

The Senior Coroner had refused to re-open the inquest into the murder of a woman by her former partner after her complaints of stalking were mishandled by police. There was no question that Art.2 was engaged on the basis of potential breach by the police of their operational duty to safeguard the victim’s life. Furthermore, the criminal trial alone had not satisfied the state’s Art.2 investigative duty. However, the judge agreed with the Senior Coroner that the European Convention does not adopt a prescriptive approach to the form of the Art.2 investigation, so long as minimum standards are met. One must look at the totality of the investigations conducted by the state whilst remembering that even the minimum requirements involve a degree of flexibility.

In this case the Art.2 obligation to conduct a prompt and effective independent inquiry with sufficient public scrutiny and sufficient involvement of the next of kin had been met by the combination of the criminal trial, a domestic homicide review and the three other investigations of police conduct. The Senior Coroner was not only entitled to find that these enquiries satisfied Art.2; she was right to do so.

‘Unlawful killing’ as a narrative conclusion that names the perpetrator

Written by: Bridget Dolan KC
Published: 1 February 2021

In the matter of an Inquest into the death of Patrick McElhone [2021] NI Coroner 1

The coronial world is still coming to terms with the impact of the Supreme Court decision in Maughan and what it will actually mean for inquests in practice. Even following the additional guidance from the Chief Coroner (see our earlier blog here) the twittersphere still reverberates with questions such as how one can be ‘probably unlawfully killed’, whether how inquests are conducted will change if it is now open to return an unlawful killing conclusion in more circumstances, and whether Coroners will be open to judicial review if they fail to use those two words in a relevant case.

Some assistance with how to tread those difficult lines now comes from across the Irish Sea. The McElhone inquest provides a helpful example of how to frame what is (but for a semantic hair’s breadth) an unlawful killing finding within a narrative conclusion without needing to use those precise words.

Indeed, Mrs Justice Keegan has not only provided a tutorial on how to deal with factual findings in an unlawful killing inquest but she also more generally demonstrates how to tell the story of any death in a brief, concise yet comprehensive narrative. Her verdict is so well worked that one doesn’t need to set out much of the background facts of the case here for the reader to understand what went on.

Top tips when making a s.13 application for a fresh inquest

Written by: Bridget Dolan KC
Published: 27 January 2021

In the matter of the Inquest into the death of Michael Richard Vaughan [2020] EWHC 3670 (Admin)

Sometimes within the simplest of cases lies a wealth of useful reminders and lessons for everyone. This superficially uncomplicated and uncontested application under s.13 Coroners Act 1988 is a treasure trove of learning for anyone who may find themselves seeking a fresh inquest.

The request for a fresh inquest here was well founded, and so one might expect the remedy to have been swiftly achieved. The deceased had died after a self-administered paracetamol overdose and had left a note that provided evidence of his intent. Unfortunately, that note was not put before the coroner: had it been her inquest conclusion of ‘misadventure’ would probably have been different. But, despite the bereaved raising their concerns about the accuracy of the conclusion and the absence of the note on the day the inquest ended, it took more than five years before a fresh inquest was ordered by the High Court

The implications of Maughan: the Chief Coroner’s Law Sheet #6

Written by: Bridget Dolan KC
Published: 14 January 2021

Chief Coroner’s Law Sheet #6, 13.1.2021

The new Chief Coroner, HHJ Teague QC, has just published his first legal guidance in the form of “Law Sheet 6” addressing the impact of the case of R (on the application of Maughan) v Her Majesty’s Senior Coroner for Oxfordshire [2020] UKSC 46 on coronial practice. These Law Sheets are written to assist coroners with the law and their legal duties, and to provide commentary and advice on policy and practice.

On 13 November 2020 the Supreme Court determined in Maughan that the civil standard of proof is to be applied in coronial inquests for all conclusions that a coroner or a coroner’s jury might return, including unlawful killing (see our earlier blogs (here and here)). Previously it had been accepted that the ‘short form’ conclusions of unlawful killing and suicide could only be returned if found proven to the criminal standard of ‘beyond reasonable doubt’. However, the Supreme Court brought coronial law into line with a number of other areas of civil law when it held that, as a matter of common law principle, the criminal standard should not apply to any conclusion in coronial proceedings.

Setting that change in its wider context, in 2019 there were fewer than 166 conclusions of unlawful killing made by coroners or juries in inquests, this was half a percent of the 31,284 inquests concluded. The issue of unlawful killing is likely to feature in relatively few inquest cases. However, when it does arise it will of course be of substantial importance to all involved.

Probably unlawful killing: a new inquest conclusion

Written by: Frances McClenaghan
Published: 13 November 2020

R (Maughan) v Senior Coroner for Oxfordshire [2020] UKSC 46

There is perhaps no better example of the judicial development of our common law than Maughan. A case which began with a family member appealing against what they believed was the incorrect application of the civil standard of proof to a suicide conclusion has ended with the Supreme Court determining that not only was the standard of proof correctly applied in circumstances where suicide is a civil finding, but that the same logic also applies to an inquest conclusion of unlawful killing.

“There is to be only one standard of proof in inquests and that is proof that the fact in issue more probably occurred than not.”

This will no doubt surprise many readers, and perhaps rightly so, as the decision in Maughan is from a divided court: a 3:2 majority concluded that the standard of proof for all conclusions at an inquest – including ‘suicide’ and ‘unlawful killing’ – should be the civil standard.

Although as one of the dissenting voices, Lord Kerr, has quite rightly emphasised in another setting:[1] the importance of dissent, even when in the final court of appeal, is that it contributes to the transparency of the debate, and far from detracting from the authority of the majority opinion, that opinion, in confronting and disposing of an opposite view, if it has been done convincingly, will be all the more commanding of acceptance as a result.