Damages of £5,000 for delay to an Art 2 inquest

Jordan v The Chief Constable of the PSNI [2019] NICA 61

The latest instalment of the long running Pearse Jordan inquest saga provides an important warning to all coroners and other public bodies involved in Article 2 investigations where there is delay in coming to inquest because of shortcomings on the part of a public body (including the court).

Mr Jordan’s family have now had their second award of damages upheld by the Northern Irish Court of Appeal. The appeal court found that a sum of £5,000 represented ‘just satisfaction’ for the exacerbation of the bereaved person’s ‘feelings of frustration, anxiety and distress’ arising from 14 months of culpable delay in bringing the case to inquest. This assessment of damages took into account that an award of £10,000 had already been made by the European Court of Human Rights in 2001 as compensation for earlier delays in investigating Mr Jordan’s death.

When might Article 2 apply to deaths of patients in the community?

R (Lee) v HM Assistant Coroner for Sunderland [2019] EWHC 3227 (Admin)

It is now commonplace in advance of inquests for coroners to rule on their scope, including whether possible state responsibility requires the inquest to meet the UK’s Art 2 procedural obligations. That task is not easy when the extent of Art 2 involves a complex question of law to be applied in factual circumstances that are often still to be uncovered. Added to that, the jurisprudence of the Art 2 duty is still evolving as its boundaries are repeatedly explored by the courts as new circumstances are presented for consideration.

The case of Rabone v Pennine Care NHS Trust[1] was one such new circumstance and considered whether there was an operational duty owed under Article 2 to informal psychiatric in-patients who were not detained under the Mental Health Act. Although Melanie Rabone died when on leave outside of hospital the Supreme Court considered that the operational duties did extend to the circumstances of her case – taking account of her extreme vulnerability and the exceptional nature of the risks alongside the degree of responsibility and control assumed by the NHS Trust.

Following Rabone the question arises of whether Article 2 procedural obligations might be engaged after the death of a person who is a mental health patient receiving care in the community. In this blogger’s experience several coroners (and NHS Trusts facing civil claims) have since accepted that an Art 2 duty can be owed to a community patient, particularly where the alleged shortcomings include a failure to admit a vulnerable person who was at obvious and imminent risk of suicide. However until recently no challenge to a coronial decision on the application (or non-application) of Art 2 at a community patient’s inquest has been reported from the higher courts.

The applicant in R (Lee) v HM Assistant Coroner for Sunderland has now invited an important extension of the law beyond Rabone. However, if you are hoping for clear or simple answer to this vexed question be ready for disappointment. To paraphrase this very lengthy extempore judgment – delivered by HHJ Raeside QC after hearing two days of legal argument – it is all very complicated and will always depend on the facts.

Screening Inquest Witnesses: An appropriate protection or a disproportionate intrusion into open justice?

Dyer v Assistant Coroner for West Yorkshire [2019] EWHC 2897 (Admin)

If the tribunal, the lawyers and the jury who will be making the decision can watch a witness as they give live evidence one might ask why should it matter if the rest of the public and press might not see the witness’ face?

However it matters a great deal if one is to have any respect for the constitutional principle of open justice which, as one of the core safeguards in our judicial system, should be fundamental to all courts and tribunals exercising the judicial power of the state.

In Coroners courts, as in the rest of the British justice system, the notion that justice should not just be done, but also be seen to be done is far more than an often repeated trope; it is something that rightly weighs heavy when the loss of a life is at the centre of the inquiry, and particularly so when agents of state are implicated in the tragic death of a black man in custody. It is, therefore, unsurprising that in the recent case of Dyer heavy justification was required for preventing the deceased’s parents, partner and son from watching the faces of the police witnesses whilst they gave their inquest evidence.

Although balancing potential risks to police officers from those who may wish them harm could justify their giving evidence behind screens and so not open to public scrutiny, it was a step too far, held Mrs Justice Jefford, to also prevent the close family of the deceased from seeing the relevant officers’ faces.

A new legal duty on doctors to report deaths to Coroners

The Notification of Deaths Regulations 2019

The Notification of Deaths Regulations 2019[1] come into effect on 1 October 2019 and will place a legal duty on ALL doctors who come to know of a death to ensure it has been reported to a Coroner where any of the circumstances that might trigger the Coroner’s investigatory duties appear to be present.

Although for over half a century, under the Births and Deaths Registration Act 1953[2], the deceased’s ‘attending medical practitioner’ (‘AMP’) has been required to provide the Registrar with a medical certificate of the cause of death (‘MCCD’), until now there has been no statutory obligation upon the AMP, or any other doctor, to either directly notify the Coroner or ensure the Coroner has been informed by another medical colleague of a death falling within the Coroner’s jurisdiction[3].

The circumstances in which the doctor’s notification duty will now arise largely parallel those situations falling under s.1(2) Coroners and Justice Act 2009 which would give rise to the Coroner’s own investigatory duty – i.e. when the doctor suspects the death was violent or unnatural (including from neglect or self-neglect) or that it occurred whilst the deceased was in state detention or where the cause of death is unknown or the identity of the deceased is not established.

“Better safeguards with the additional scrutiny of deaths”

Previously it would often be the Registrar or a Police Officer who would notify the Coroner of a death in the community. From tomorrow, wherever a notifiable death has occurred of which a doctor is aware that death must also be reported directly to the Coroner by a medical practitioner.

Recovering Inquest Costs in Civil Claims

Fullick v The Commissioner of Police of the Metropolis [2019] EWHC 1941 (QB)

The funding of representation for the bereaved at inquests is not just an un-level playing field, but a total quagmire often more akin to the aftermath of an outing of the 1988 Pontypool front row on a rainy day in December. The costs of representation at an inquest will only be met from public funds in cases deemed to be ‘exceptional’ (where, as a minimum, Art 2 is engaged or where it can be shown that the provision of advocacy for the bereaved family at the inquest is likely to produce significant benefits for a wider class of people). Calls for non-means tested funding for the bereaved, even though supported by the Chief Coroner[1], have been rejected[2] [3]. Even the families of those killed in the London Bridge attack were told it was not in the public interest for them to receive state funding at the inquests[4].

Against that background, it is unsurprising that there is a growing body of case law regarding the recovery of the bereaved’s inquest costs as part of the costs of a subsequent successful civil claim. The amounts at stake can be very large even though the civil claim will often settle pre-action following pejorative inquest findings.

Some of the principles in play are now helpfully set out in the recent case of Fullick – an appeal of a Deputy Master’s order that the Met Police should pay costs of over £88,000 following the pre-action settlement of a claim for damages for breach of Art 2, negligence and misfeasance in public office in a death involving the police.

The decision is worth a read for its consideration of the purpose and function of an inquest, as well as its setting out of the principles underpinning the recoverability of inquest costs.