Inquests, Coroners and Secrets: the latest word

Written by: Bridget Dolan KC
Published: 30 November 2016

Secretary of State for the Home Dept v Senior Coroner for Surrey [2016] EWHC 3001 (Admin) 23.10.2016

Senior Coroners still smarting from being described as holding “a relatively lower judicial office” by Mr Justice Singh in the Norfolk Coroner v AAIB case last month have now been dealt a second blow by Cranston J when he made it very clear that not only are Senior Coroners, as a category, not among those able to see sensitive material related to issues of national security, but that the Secretary of State can rely upon the assertion of a general policy not to provide Coroners with such material and so does not have to provide any evidence that disclosure to the particular Coroner will in itself result in a real risk of serious harm to national security.

When Alexander Perepilichnyy, a Russian national, died suddenly in November 2012, while jogging near his home in Surrey, the circumstances aroused suspicion in some as to whether he had been unlawfully killed by agents of the Russian state due to his alleged role in helping to uncover a major fraud.

During the course of his investigation into Mr Perepilichnyy’s death, the Senior Coroner had issued requests for evidence directed at the Security Service and the Secret Intelligence Service.

In an “unprecedented” application the Secretary of State applied to the High Court for an order permitting the non-disclosure of documents to the Senior Coroner in the inquest proceedings on the ground that such disclosure would damage the public interest.

The Secretary of State had refused to allow the Senior Coroner, who did not have developed vetting (‘DV’) security clearance, to view the original material. Although the Senior Coroner accepted that there was material which he was not able to review because of its sensitivity; he had appointed DV security cleared counsel who the government agreed could view the information and provide an anodyne gist to him. The confidential gist was prepared at a level of generality to enable the Senior Coroner to consider the material with his counsel. The Secretary of State then made a PII application in respect of the gist, but the Coroner considered that the submissions made on he behalf in relation to the application were inadequate, as they were not supported by evidence. The Senior Coroner informed the Secretary of State that he required a PII application by way of a Ministerial certificate; a Ministerial certificate was duly provided however rather than being limited to the gist it covered the entirety of the material which meant that the Senior Coroner was unable to see it, consequently he was unable to determine the PII claim.

The Senior Coroner accepted that he could not now determine whether the PII claim was properly made because he needed to see the disputed material in order to conduct the balancing exercise required. The question for the High Court was whether that Court should exercise its jurisdiction to consider the Secretary of State’s PII application in the circumstances.

Whose death is it anyway? The right to dispose of a body and pre-death decision making in plain English

Written by: Bridget Dolan KC
Published: 22 November 2016

Re JS (Disposal of Body) EWHC 2859 (Fam)

Last month saw the three Brexit judges on the front pages, unfairly lambasted by the media just for doing their jobs properly. It’s a shame that the press who seem, on the whole, to rather like this latest Family Court decision, haven’t sought to make Mr Justice Peter Jackson their cover star this month, this time with a huge respect for a judge who has done his job extremely well. In a clear, concise and incredibly sensitive judgment – superbly drafted not only in what it says, but in how he makes inferences about those matters that he doesn’t explicitly describe – Peter Jackson J has dealt with what must be one of the most difficult and tragic cases to come before the courts this year.

The case has been hailed in the headlines as a victory for “the right to be cryogenically frozen” although if the sub-editors had bothered to read this admirably plainly written judgment properly they would find that Jackson J confirms exactly the opposite.

There is simply no right of anyone, child or adult, to determine what happens to your own body after you die. Your dead body is not your own property to be disposed of by your will. The decision will always be left in the hands of others.

As an adult you can of course write a will, name your own executors, express your wishes and then hope that you have chosen your executors wisely. Happily, in most cases the people you have nominated will obey your wishes and dispose of your body as you have asked; but if they decide not to comply with your request there is little you can do about it.

Anonymisation of victims of sexual-offences in Inquest proceedings

Written by: Edward Pleeth
Published: 20 October 2016

The principle of open justice, allowing pubic scrutiny of how citizens come by their deaths, is at the core of the inquest process. Save in exceptional circumstances[1] Inquests should be heard in open court with the media able to fully report the proceedings.

“The names of those who are born and those who die are rightly a matter of public record. The fact that someone has died is always a matter of proper public interest and the ability to record it is a normal incident of society.” [2]

Readers will be familiar with Coroners’ powers under Section 39(1) of the Children and Young Persons Act 1933 to restrict reporting of the name of a child who is a witness or an IP. However Coroners have very limited alternative powers to protect the vulnerable who are not themselves an IP or witness at the inquest.

In exceptional cases, High Court judges have powers to make or extend a Reporting Restrictions Order (RRO) to protect others, such as family members of the deceased, from unwelcome press attention (see earlier UK Inquest Law Blog post here re an RRO made in the Court of Protection in anticipation of an inquest).

However another often overlooked provision applicable to Coronial proceedings, and used effectively in a recent inquest, is Section 1 Sexual Offences (Amendment) Act 1992.

There is no public interest in having unnecessary duplication of Investigations or Inquiries

Written by: Katie Gollop KC
Published: 4 October 2016

R (on the application of Secretary of State for Transport) (Claimant) v HM Senior Coroner for Norfolk (Defendant) & British Airline Pilots Association (Intervener) [2016] EWHC 2279 (Admin)

Readers of the UK Inquest Law Blog need no reminding that prior to the Coroners and Justice Act 2009, coroners had no power to order disclosure of any document so that if disclosure was required, an application had to be made to the High Court. The immediate point for the Divisional Court to decide in this case was the correct interpretation of the powers of coroners to require a person to produce documents (paragraph 2 of Schedule 5 of the 2009 Act).

The involvement of the Lord Chief Justice indicates that there is a point of general importance.

Polarising the dichotomy! Inquest juries need it kept clear and simple

Written by: Bridget Dolan KC
Published: 29 July 2016

R (Maxine Hamilton-Jackson) v HM Assistant Coroner for Mid Kent and Medway [2016] EWHC 1796 (Admin)

The absence of opening or closing speeches at inquests means that the need for clarity when summing up is all the more important. The jury must know clearly what they need to find as facts in order to justify any conclusion and, as the Chief Coroner has put it:

“Coroners, however well intentioned, should do their best in directing a jury to avoid using language which is not in everyday use, language which may not be clearly understood”.

So what are an inquest jury to make of being told they need to decide whether or not there was a failure of a prison system or in the operation of a prison system, by “polarising the dichotomy between: is it mandatory to open an ACCT when a particular event occurs or is it mandatory to open an ACCT when the relevant official considers there is a risk of suicide or self-harm?”

Quashing the jury’s response to just one part of the jury questionnaire in this case, the Divisional Court has held that not only was there a misdirection, because the jury could not be clear what they were being asked to decide, but also re-iterated how the meaning of a policy is not a matter of fact to be determined by the jury, but is a question of law to be determined by the Coroner.