R (Ture) v Senior Coroner for Manchester North [2022] EWHC 1027 (Admin)

It is not really the substance of this permission decision that is of most interest to this blogger…

…Spoiler Alert:  the Senior Coroner had done a really good job of expressing her conclusions in what had been a very difficult case both evidentially and legally,  and the claim that she had (i) wrongly limited the scope of her inquiry; (ii) given inadequate reasons and (iii) arrived at an unreasonable and unjustified conclusion had no realistic prospect of success…[1]

Rather, what is notable from the judgment is the consternation expressed by a High Court judge on his discovering that the coronial findings of fact, the reasons for the conclusions reached by a coroner and the Record of Inquest document are not normally made easily available to the public.

In the Matter of Downey (Determination Of Costs) [2022] NIQB 2

Where a Coroner as defendant in judicial review proceedings merely provides assistance and information to the court, rather than contesting the proceedings, that Coroner will not generally be liable for the successful Claimant’s costs.^[1] The usual rule of ‘costs following the event’ will generally only apply where there has been active resistance of a Judicial Review claim by a Coroner who risks costs being awarded against them if they lose, whereas a successful defence of an application may result in costs being awarded in favour of the Coroner.

However, Mr Justice Rooney in the Northern Irish High Court has issued a stark reminder to Coroners that costs will not always follow the event.  Even where a Coroner wins a contested Judicial Review claim they may not be awarded their costs if their own conduct has not been up to scratch.

M4 v The Coroner’s Service for Northern Ireland [2022] NICA 6

The privilege against self-incrimination is an ancient right firmly established in our Common Law dating back to the 17^th century abolition of the Star Chamber.  This privilege enables a witness to refuse to answer questions in court and to refuse to produce documents or material at trial or pre-trial if doing so might carry a risk of the evidence being used in the course of a criminal prosecution against the person.

However, whilst that right is, very properly, protected at inquests by the Coroners procedural rules, the Court of Appeal of Northern Ireland have made it clear that the privilege cannot be relied upon to avoid any attendance at an inquest altogether.  Where a Coroner believes there is some relevant evidence a witness can give that Coroner will be entitled to call them to court, using legal compulsion if necessary, even where the privilege has been claimed.

In this Art 2 inquest, where the key allegation was that a soldier had unlawfully taken the life of the deceased, the need for the witness to attend the inquest was paramount such that the Court’s power to set aside a subpoena would not be exercised.

Lee v Assistant Coroner for County Durham and Chief Constable of Durham [2022] High Court QBD (CO/4066/2021)

The tragic death of Dylan Lee is a distressing case.   Dylan was only 19 years old when he took his own life by hanging himself at his family home.   Before his death Dylan’s family were said to have been the victims of abuse and harassment by private individuals (primarily neighbours) as a result of their Romani Gypsy heritage.  Sixteen crimes against his family had been, reported to police in the period before Dylan’s death.

Dylan’s mother felt strongly that the police had failed to treat the family’s reports with the seriousness that they deserved, failed to recognise the treatment as discriminatory, and failed to carry out adequate investigations. However, at Dylan’s inquest the Coroner ruled that the scope of the inquest would not include investigation of the alleged discriminatory treatment to which Dylan and his family were subjected, nor the alleged failure of the police to respond appropriately thereto

Dylan’s mother sought permission to bring judicial review proceedings challenging the conduct of this non-Article 2 inquest.   Although not a binding authority, the comments of the Judge when refusing permission to bring the claim are illuminating.

The application was brought on the basis of both Article 2 and Article 8 ECHR.  The Article 2 aspect was easily dispensed with:  there was nothing in the evidence to suggest police (or indeed anyone) ought to have known Dylan was at risk of taking his own life, nor was there any evidence of any link between the alleged harassment and Dylan’s death. As for the Article 8 claim, the judge noted that even if the state does have an investigative duty under Article 8, it does not follow that that investigative duty falls upon a Coroner.   It is no part of the function of an inquest to investigate an alleged breach of a person’s right to respect for private and family life.

In the matter of Downey [2021] NIQB 108

There is much to be learned from this recusal application, that was founded on the Coroner having allegedly expressed a decided view regarding an important legal point before he had received the written submissions he had invited on the issue.

Despite a High Court judge initially having ‘significant concerns’ about the events, the judge eventually accepted the Coroner’s explanation that his having stated an, apparently, concluded view on the applicability of Art 2 in correspondence with the Legal Services Agency, was merely a ‘poor choice of words’, and that he had not actually predetermined the matter.  As such, the application that the Coroner should recuse himself from further involvement in the inquest failed.

The judgment is worthwhile reading, with much opportunity for vicarious learning for Coroners in the fascinating twists and turns of not making an Art 2 decision. For the inquest lawyer Northern Ireland’s newest High Court judge provides an extremely detailed and helpful guide to the key legal principles in play if making an application for recusal on the grounds of bias allegedly shown by predetermination of an issue.