R (Police Officer B50) v HM Coroner for East Yorkshire and Kingston Upon Hull [2023] EWHC 81 (Admin)

This case raised two very different questions of ‘safety’.

The first, to be decided by police firearms officers:

A man was in the street carrying an axe and walking with purpose. Police were aware the man had at least some mental health illness. He had not injured anyone, or directly threatened anyone. But he did not stop when police asked him to, or indeed after they Tasered him.

How close should police let a mentally ill, unpredictable man with an axe get to other persons on the street? To what extent should police risk their own safety, getting close enough to disarm him? For how long was it safe to permit this scenario to run?

Officer B50 ultimately discharged his firearm into the man’s back. The bullet hit him, but he did not stop. B50 shot a second time, again in the man’s back, and then wrestled him to the ground. Sadly the man died.

The second question of ‘safety’ was for the coroner, and ultimately the Divisional Court:

Was it safe to leave to an inquest jury the option of a conclusion of unlawful killing?

R (Makki) v South Manchester Senior Coroner and Molnar [2013] EWHC 80 (Admin)

Yousef Makki was only 17 when he died as a result of a single stab wound to the chest from a flick-knife which had been wielded by another 17-year-old, Joshua Molnar during a confrontation.

When Molnar was acquitted of homicide by a criminal jury the Senior Coroner decided to hold an inquest examining the circumstances of the death. After hearing five days of evidence the coroner concluded that there was insufficient evidence to determine whether the killing had been lawful or unlawful, and so returned a narrative conclusion indicating that Yousef had died from “complications of a stab wound to the chest. The precise circumstances in which he was wounded cannot, on the balance of probabilities, be ascertained.”  This narrative finding was, to all intents and purposes, an open conclusion.

There is nothing wrong with a coroner being left profoundly unsure at the end of an inquest. A coroner who has ‘striven hard’ to make a finding about the key issues and who explains the basis for arriving at the conclusion that it is not possible to make findings one way or another, will not be criticised for returning an open finding as a result. But the coroner must at very least explain properly why they have come to that position. In this case, however, the difficulty the Administrative Court identified was that the Coroner’s reasoning for her determination was not at all clear. As a consequence the inquest was quashed and is now to be heard again.

Dillon v Assistant Coroner For Rutland & N Leicestershire [2022] EWHC 3186 KB (Admin)

Challenging a Coroner’s refusal to issue a report to prevent future deaths (‘a PFD report’)[1] is always going to be an uphill struggle. Whilst there is no coronial discretion, and a report is mandatory, if a coroner determines action should be taken to prevent a risk of future deaths continuing, the Divisional Court has now made clear that before coming to that position there is a significant subjective element.

Before the duty to issue a PFD report arises, first, there must be a concern (arising from the investigation) that circumstances creating a risk of other deaths will occur or continue in the future. Secondly, and significantly, the Coroner must have formed the opinion that ‘action should be taken’ to prevent that risk of death.

The Coroner must act rationally in coming to the opinion held, but different coroners could reasonably come to opposite opinions on the same facts without either being wrong to do so. In other words, there is no single, objectively correct answer to the question raised by the second criterion in any particular case.  It is, therefore, no surprise that the Claimant’s challenge failed in this case.

It is now six years since Singh J and the Lord Chief Justice considered the relationship between Accident Investigation Branch investigations (Rail, Air & Marine) and coroners’ inquests in ‘the Norfolk case’.[1] In that instance the issue was whether a coroner had the power to order the Air Accidents Investigation Branch (“AAIB”) to disclose a cockpit voice and flight data recorder. The Divisional Court said ‘no’. But that’s not important right now…

What was more interesting was what Singh J[2] said about a coroner – who was not an expert in the field – not being required or permitted to “go over the same ground” as an AIB. Lord Thomas agreed and bemoaned the tendency “for different independent bodies … to investigate, either successively or at the same time, the same matter.” He concluded that, if coroners did not defer to AIBs which had the greatest expertise, then public money would be wasted. In the absence of “credible evidence that the investigation into an accident is incomplete, flawed or deficient” then a coroner had no business re-investigating matters covered by the independent investigation of the AAIB.

What then should a coroner do in these circumstances? According to Lord Thomas either: (a) adjourn pending publication of the AIB report or (b) proceed on the assumption that the reasons for the crash will be determined by that report and the issue treated as outside the scope of the Inquest.