The Inquest Book: The Law of Coroners and Inquests 9781849466493, 9781474201728, 9781782255697

Coronial Law is an area that attracts great public scrutiny, reflected in the recent establishment of the office of the

177 7 5MB

English Pages [713] Year 2016

Table of contents :
Foreword by the RT Hon Lord Justice Burnett
Acknowledgements
Editors
The Inquest Casebook Table of Contents
Keywords
Table of Cases
Table of Statutes and International Instruments
1. Introduction
Part One: Inquests—General Principles
2. Sources of Coronial Law and Guidance
I. Overview
II. Background to the Coroners and Justice Act 2009
III. The Coroners and Justice Act 2009
IV. Coroners (Investigations) Regulations 2013
V. Coroners (Inquests) Rules 2013
VI. Chief Coroner's Guidance and Law Sheets
VII. Legal Resources
3. Duty to Hold an Inquest
I. Overview
II. Legislation and Other Sources
III. Cases
4. The Role and Scope of an Inquest
I. Overview
II. Legislation
III. Cases
5. The Coroner
I. Overview
II. Legislation and Other Sources
III. Cases
6. Pre-Inquest Reviews
I. Overview
II. Legislation and Other Sources
III. Cases
7. Article 2 Inquests
I. Overview
II. Legislation and Other Sources
III. Cases
IV. Guidance on the Applicability of Article 2
8. Interested Persons
I. Overview
II. Legislation and Other Sources
III. Cases
9. Witnesses
I. Overview
II. Legislation and Other Sources
III. Cases
10. Funding
I. Overview
II. Legislation and Other Sources
III. Cases
11. The Jury
I. Overview
II. Legislation and Other Sources
III. Cases
12. Evidence
I. Overview
II. Legislation and Other Sources
III. Cases
13. Anonymity, Protective Measures and Public Interest Immunity
I. Overview
II. Legislation and Other Sources
III. Cases
14. The Inquest Hearing
I. Overview
II. Legislation and Other Sources
III. Cases
15. Conclusions
I. Overview
II. Legislation and Other Sources
III. Cases
16. Inquest versus Public Inquiry
I. Overview
II. Legislation and Other Sources
III. Cases
Part Two: Specific Inquests
17. Medical Inquests
I. Overview
II. Legislation and Other Sources
III. Cases
18. Inquests Concerning Mental Health and Capacity
I. Overview
II. Legislation and Other Sources
III. Cases
IV. Practical Matters
V. Conclusions: Issues Specific to Mental Health Inquests
19. Article 2 and Local Authorities
I. Overview
II. Legislation and Other Sources
III. Cases
20. Deaths in Custody
I. Overview
II. Legislation and Other Sources
III. Cases
21. Police Inquests
I. Overview
II. Legislation and Other Sources
III. Cases
22. Military Personnel and Civilians in War
I. Overview
II. Legislation and Other Sources
III. Cases
23. Inquests Involving the Intelligence Services and Agencies
I. Overview
II. Legislation
III. Cases
24. Deaths in the Workplace
I. Overview
II. Legislation and Other Sources
III. Cases
Part Three: After the Inquest
25. Reports to Prevent Further Deaths
I. Overview
II. Legislation and Other Sources
III. Cases
26. Steps After the Inquest
I. Overview
II. Legislation and Other Sources
III. Cases
Appendices
Coroners and Justice Act 2009
Index

Recommend Papers

Death, Family and the Law: The Contemporary Inquest in Context 9781529212488

When a death is investigated by a coroner, what is the place of the family in that process? This accessibly written book

128 8 12MB Read more

Inquests 9781472565549, 9781849460378

The last year has seen the largest and most comprehensive reform of Coronial Law since the early nineteenth century. The

134 6 2MB Read more

Bedfordshire Coroners' Rolls 9781800107298

105 31 35MB Read more

The Origins of Biblical Law: The Decalogues and the Book of the Covenant 9781501733666

21:2–23:19) were not created directly in response to contemporary social problems, but rather may be traced back to lite

114 70 12MB Read more

Death Investigation in America: Coroners, Medical Examiners, and the Pursuit of Medical Certainty 9780674054066

Why is the American system of death investigation so inconsistent and inadequate? In this unique political and cultural

116 60 680KB Read more

The State and the Rule of Law [Course Book ed.] 9781400821761

Blandine Kriegel, at one time a collaborator with Michel Foucault, is one of France's foremost political theorists.

113 25 690KB Read more

Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law [Course Book ed.] 9781400844838

Boilerplate--the fine-print terms and conditions that we become subject to when we click "I agree" online, ren

118 16 5MB Read more

Building the Judiciary: Law, Courts, and the Politics of Institutional Development [Course Book ed.] 9781400842575

How did the federal judiciary transcend early limitations to become a powerful institution of American governance? How d

104 20 2MB Read more

The Book of Canticles the Book of Canticles the Book of Canticles the Book of Canticles 9781593338879, 1593338872

This work is a compilation of three articles by Professor Haupt on the Book of Canticles, also known as the Song of Song

207 55 8MB Read more

Locke and the Legislative Point of View: Toleration, Contested Principles, and the Law [Course Book ed.] 9781400825394

Determining which moral principles should guide political action is a vexing question in political theory. This is espec

100 51 632KB Read more

The Inquest Book: The Law of Coroners and Inquests
9781849466493, 9781474201728, 9781782255697

Author / Uploaded
Caroline Cross
Neil Garnham (editors)

0 0 0
Like this paper and download? You can publish your own PDF file online for free in a few minutes! Sign Up

File loading please wait...

Citation preview

THE INQUEST BOOK Coronial Law is an area that attracts great public scrutiny, reflected in the recent establishment of the office of the Chief Coroner, and the number of judges of the High Court and the Court of Appeal made deputy assistant coroners to particularly sensitive inquests. It is also an area of law that has changed significantly in recent years since the new Coroners and Justice Act 2009 came into force in 2013. This book provides practitioners with an up-to-date and comprehensive guide to the law of coroners and inquests. Written by barristers practising in the field, it addresses changes to the structure and jurisprudence of coroners’ courts in a straightforward, accessible manner. The book is helpfully structured according to the elements of an inquest or the subject matter of a coroner’s investigation. Each chapter provides an overview of the legal issues, statutory material and other sources of guidance, followed by case summaries and extracts where the relevant issues are discussed. In addition, there are useful appendices of relevant materials, including applicable legislation and the Chief Coroner’s Guidance. The book is an essential companion for practitioners of coronial law, indispensable to novices and seasoned practitioners alike.

ii

The Inquest Book The Law of Coroners and Inquests

Edited by

Caroline Cross and Neil Garnham With contributions from Kate Beattie, Caroline Cross, Matthew Hill, Alasdair Henderson, Sir Neil Garnham, David Manknell, Rachel Marcus, Isabel McArdle, Richard Mumford, Pritesh Rathod, Peter Skelton QC, Marina Wheeler QC, Dame Philippa Whipple DBE and Lois Williams Barristers at 1 Crown Office Row

OXFORD AND PORTLAND, OREGON 2016

Published in the United Kingdom by Hart Publishing Ltd 16C Worcester Place, Oxford, OX1 2JW Telephone: +44 (0)1865 517530 Fax: +44 (0)1865 510710 E-mail: [email protected] Website: http://www.hartpub.co.uk Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786 USA Tel: +1 503 287 3093 or toll-free: (1) 800 944 6190 Fax: +1 503 280 8832 E-mail: [email protected] Website: http://www.isbs.com © Caroline Cross and Neil Garnham 2016 Caroline Cross and Neil Garnham have asserted their right under the Copyright, Designs and Patents Act 1988, to be identified as the authors of this work. Hart Publishing is an imprint of Bloomsbury Publishing plc. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission of Hart Publishing, or as expressly permitted by law or under the terms agreed with the appropriate reprographic rights organisation. Enquiries concerning reproduction which may not be covered by the above should be addressed to Hart Publishing Ltd at the address above. British Library Cataloguing in Publication Data Data Available Library of Congress Cataloging-in-Publication Data Names: Cross, Caroline (Lawyer) | Garnham, Neil (Lawyer) Title: The inquest book : the law of coroners and inquests / edited by Caroline Cross and Neil Garnham ; with contributions from Kate Beattie, Caroline Cross, Matthew Hill, Alasdair Henderson, Sir Neil Garnham, David Manknell, Rachel Marcus, Isabel McArdle, Richard Mumford, Pritesh Rathod, Peter Skelton QC, Marina Wheeler QC, Dame Philippa Whipple DBE and Lois Williams Barristers at 1 Crown Office Row. Description: Oxford ; Portland, Oregon : Hart Publishing Ltd, 2016. | Includes bibliographical references and index. Identifiers: LCCN 2016005227 (print) | LCCN 2016005579 (ebook) | ISBN 9781849466493 (hardback : alk. paper) | ISBN 9781782255703 (Epub) Subjects: LCSH: Coroners—England. Classification: LCC KD7296 .I57 2016 (print) | LCC KD7296 (ebook) | DDC 347.42/016—dc23 LC record available at http://lccn.loc.gov/2016005227 ISBN: 978-1-78225-569-7 Typeset by Compuscript Ltd, Shannon

To Tom Rippin To Gill Garnham With love

vi

FOREWORD BY THE RT HON LORD JUSTICE BURNETT

The world of the Coroners’ Court has changed beyond recognition since I made my first appearance at Southwark Coroner’s Court as a pupil barrister in a motoring case before the redoubtable Sir Montague Levine between Christmas and New Year at the end of 1981. The Coroners’ Courts I saw in the 80s and 90s across the country bore very little resemblance to the coronial jurisdiction of today. The changes in the intervening years have sprung from increasing public and political expectations of what inquests should achieve. There have been developments flowing from judicial review challenges and from the evolution of the procedural duty under article 2 of the European Convention on Human Rights. The Report of a Fundamental Review 2003 Cm 5831 chaired by Tom Luce, and the Shipman Inquiry, contributed to the development of the reforms—partially introduced though they have been—of the Coroners and Justice Act 2009. As the expectations changed and the legal superstructure developed the need for practitioners to be familiar with the law and practice governing the conduct of inquests has become ever more demanding. This book is a timely and welcome addition for the benefit of those advising in connection with and appearing at inquests. It will also be of enormous benefit to coroners and their deputies. It brings together, in a straightforward and clearly explained way, the legislation and cases on most topics that are likely to be of concern, together with a helpful introduction to each. The appendices contain the core statutory materials and guidance from the Chief Coroner. Mr Justice Garnham and Caroline Cross have produced a readable and authoritative work which will soon become indispensable to those involved in inquests. Ian Burnett Royal Courts of Justice January 2016

viii

ACKNOWLEDGEMENTS

The editors would like to thank the following: the authors, without whom this book would not have been possible; the ‘second lookers’ (Matthew Barnes, Clodagh Bradley QC, Christina Lambert QC, David Manknell, Neil Sheldon, Owain Thomas QC and Marina Wheeler QC) for their time and expertise; Michael Deacon and Diarmuid Laffan for all their help; 1 Crown Office Row for their support of this project; the Rt Hon Sir Ian Burnett PC, for writing the foreword; Hart Publishing, and in particular Bill Asquith, Mel Hamill and Tom Adams for their patience and guidance; and our families, with love.

x

EDITORS

Caroline Cross is a barrister at 1 Crown Office Row. Caroline has a diverse civil and public law practice with particular interests in inquests, human rights, clinical negligence and personal injury. She has a varied inquest practice and has acted in inquests pertaining to medical and mental health matters, local authorities and military personnel. She has represented both the bereaved and interested persons. Caroline was also junior counsel for the Treasury Solicitors in the public inquiry into the death of Baha Mousa. Sir Neil Garnham is a High Court judge sitting in the Queen’s Bench Division. He was formerly a silk at 1 Crown Office Row where inquests and public inquiries were a substantial part of his practice. He too acted for both bereaved families and interested persons.

xii

THE INQUEST CASEBOOK TABLE OF CONTENTS

Foreword by the Rt Hon Lord Justice Burnett �� vii Acknowledgements�� ix Editors�� xi Keywords�� xvii Table of Cases ��xix Table of Statutes and International Instruments��xxxi

1. Introduction��1 Sir Neil Garnham and Caroline Cross Part One: Inquests—General Principles 2. Sources of Coronial Law and Guidance��7 Richard Mumford 3. Duty to Hold an Inquest��15 Rachel Marcus 4. The Role and Scope of an Inquest��39 Isabel McArdle 5. The Coroner��55 Marina Wheeler QC 6. Pre-Inquest Reviews��69 Richard Mumford 7. Article 2 Inquests��77 Peter Skelton QC, Caroline Cross and Kate Beattie 8. Interested Persons��137 David Manknell 9. Witnesses��149 Kate Beattie 10. Funding��173 Pritesh Rathod

xiv The Inquest Casebook Table of Contents

11. The Jury��195 Richard Mumford 12. Evidence��209 Peter Skelton QC 13. Anonymity, Protective Measures and Public Interest Immunity Matthew Hill and Sir Neil Garnham��249 14. The Inquest Hearing��273 David Manknell 15. Conclusions��283 Sir Neil Garnham and Kate Beattie 16. Inquest versus Public Inquiry��319 Isabel McArdle Part Two: Specific Inquests 17. Medical Inquests��337 Isabel McArdle and Kate Beattie 18. Inquests Concerning Mental Health and Capacity��359 Richard Mumford and Rachel Marcus 19. Article 2 and Local Authorities��395 Kate Beattie 20. Deaths in Custody��405 Peter Skelton QC and Lois Williams 21. Police Inquests��429 Alasdair Henderson 22. Military Personnel and Civilians in War��453 Caroline Cross 23. Inquests Involving Intelligence Services and Agencies��475 Sir Neil Garnham 24. Deaths in the Workplace��489 Alasdair Henderson Part Three: After the Inquest 25. Reports to Prevent Further Deaths��503 Caroline Cross and Isabel McArdle 26. Steps After the Inquest��517 Dame Philippa Whipple DBE

The Inquest Casebook Table of Contents xv

Appendices Statutes ��545 Coroners and Justice Act 2009��545 Coroners Act 1988 (as amended)��598 Statutory Instruments��599 Coroners (Investigations) Regulations 2013��599 Procedural Rules��610 Coroners (Inquests) Rules 2013��610 Guidance ��621 Chief Coroner’s Guidance No 5, ‘Reports to Prevent Future Deaths’��621 Chief Coroner’s Guidance No 16, ‘Deprivation of Liberty Safeguards (DoLs)’ ��628 Chief Coroner’s Guidance No 17, ‘Conclusions: Short-Form and Narrative’��636 Chief Coroner’s Guidance No 22, ‘Pre-Inquest Review Hearings’��651 Lord Chancellor’s Exceptional Funding Guidance (Inquests)��655

Index��661

xvi

KEYWORDS

Accident/misadventure

Medical care

Administrative law

Medical negligence

Anonymity

Military personnel

Article 2

Mental health

Bias

Narrative conclusion

Civil law

Natural causes

Conclusions

Neglect

Coroners

Negligence

Criminal law

Open conclusion

Delay

Personal injury

Disclosure

Police

Evidence

Post-mortem

Experts

Pre-inquest review hearing

Funding

Prisons

Health and safety at work

Protective measures

Human rights

Public interest immunity

Industrial disease

PFD reports (abbreviation for Prevention of Future Death reports)

Inquest hearing

Scope

Inquiry

Statutory review

Intelligence services and agencies

Stillbirth

Interested persons

Suicide

Judicial review

Summing up

Jurisdiction

Unlawful killing

Jury

Unnatural death

Lawful killing

Witnesses

Local authorities

xviii

TABLE OF CASES

A v British Broadcasting Corporation [2014] UKSC 25, [2014] 2 WLR 1243�� 263 AGW Group v Morrison [2006] EWCA (Civ) 6, [2006] 1 WLR 1163�� 60 Akdogdu v Turkey (Application No 46747/99) (unreported)�� 115, 373 Al Fayed v Commissioner of Metropolitan Police [2004] EWCA Civ 1679�� 203 Al Rawi v Security Services [2011] UKSC 34, [2012] 1 AC 531�� 263, 484 Allman v HM Coroner for West Sussex [2012] EWHC 534 (Admin); (2012) 176 JP 285�� 138, 146–47 Alphacell Ltd v Woodward [1972] AC 824�� 352, 356 Al-Skeini v United Kingdom (2011) 53 EHRR 18, 30 BHRC 561, [2011] Inquest LR 73��84, 99, 114, 129, 454, 462–63, 468 Álvarez Ramón v Spain (Application No 51192/99) (unreported) given 3 July 2001�� 115, 461 Arthur JS Hall & Co v Simons [2002] 1 AC 615�� 542 Attorney General v Harte (1987) 151 JP 819�� 242 Attorney General v Leveller Magazine Limited [1979] AC 440�� 260, 263 Attorney General’s Reference (Number 2 of 1999) [2000] QB 796�� 49 Bank Mellat (Appellant) v Her Majesty’s Treasury (Respondent) (No. 1) [2013] UKSC 38�� 263, 484 Beker v Turkey, no. 27866/03�� 460 Bird v Keep [1918] 2 KB 692�� 522, 541–42 Bone v France (dec.), no. 69869/01, 1 March 2005�� 401 Bournemouth Borough Council v PS & DS [2015] EWCOP 39�� 380 Brown v HM Coroner for the County of Norfolk and Another [2014] EWHC 187 (Admin)�� 73–75, 225 Bubb v Wandsworth LBC [2011] EWCA Civ 1285�� 520 Bubbins v United Kingdom (2005) 41 EHRR 24, [2005] Inquest LR 24��64, 93, 181, 438 Budayeva v Russia, App no 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02, 20 March 2008�� 395 Byrzykowski v Poland, no. 11562/05�� 401 Calvelli and Ciglio v Italy Reports of Judgments and Decisions 2002-I�� 341–42, 401 Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457�� 264, 266–67 Canning v Northants Coroner [2005] EWHC 3125 (Admin), [2005] Inquest LR 181�� 27–28, 56, 236 Ciechońska v Poland (2011) App no 19776/04 (unreported)�� 134, 400 Connah v (1) Plymouth Hospitals NHS Trust; (2) Greater Manchester Coroner; (3) Plymouth and South West Coroner; (4) Cornwall Coroner [2010] EWHC 1727 (Admin), [2010] Inquest LR 182�� 28 Constitutional Reform Act 2005�� 57, 251 Conway v Rimmer and another [1968] AC 910, [1968] 2 WLR 998�� 271 Coroners and Justice Act 2009, s 8 (3)(d)�� 206

xx Table of Cases Cumbria Coroner v Ian Smith (unreported) Divisional Court, 22 July 2015�� 30 Dale v British Coal Corporation (No. 2) Court of Appeal (Civil Division), 18 June 1992, 1992 WL 893894�� 499 Devine, ex p, 6 December 1990�� 156–57 Dodov v Bulgaria 47 EHRR 932�� 379, 401–2 Dumbell v Roberts [1944] 1 All ER 326�� 203 Dunn v Durham City Council [2012] EWCA Civ 1654; [2013] 1 LR 2305�� 271 Edwards v United Kingdom (2002) 35 EHRR 19, 12 BHRC 190, [2001] Inquest LR 57��44, 93–94, 98, 102–6, 108, 111, 113, 115, 123, 168–69, 289, 400, 411, 413 Engel and others v The Netherlands (No 1) (1976) 1 EHRR 647�� 453, 457–58 Ergi v Turkey (2001) 32 EHRR 18�� 339 Erikson v Italy (1999) 29 EHRR CD 152�� 341 European Convention on Human Rights, Art 5 (1)�� 457 Fernandez v Portugal, App no 56080/13 (ECtHR 15 December 2015)�� 133, 454 Finogenov v Russia App nos 18299/03 and 27311/03 (ECtHR, 20 December 2011)��134, 455, 470–71, 474 Finucane v UK (2003) 37 EHRR 29�� 128 Finucane’s (Geraldine) Application [2015] NIQB 57�� 128 Flower v HM Coroner for the County of Devon, Plymouth, Torbay and South Devon [2015] EWHC 3666 (Admin)�� 35–37, 56, 540 Forrest v (1) The Lord Chancellor and (2) The Lord Chief Justice [2011] EWHC 142 (Admin), [2011] Inquest LR 1�� 59 Fraser v HM Coroner for North West Wales [2010] EWHC 1165 (Admin)�� 35 Furdik v Slovakia, App no 42994/05, 2 December 2008�� 395, 401–2 Gibson’s Settlement Trusts, In re [1981] Ch 179�� 180, 191–92 Giuliani and Gaggio v Italy (2012) 54 EHRR 10��135, 455, 472 Goff v Mills (1844) 13 LJQB 227�� 170–71 Grigoriades v Greece (1997) 27 EHRR 464�� 458–59 Gulec v Turkey 28 EHRR 121�� 245 Helow v Secretary of State for the Home Department [2008] 1 WLR 2416�� 60 Herczegfalvy v Austria (1992) 15 EHRR 437�� 373 HL v UK (2004) 40 EHRR 761�� 379, 382 HM Coroner for Kent v Terrill [2000] Inquest LR 16�� 150, 170–71 HM Senior Coroner of Cumbria v Ian Smith [2015] EWHC 2465 (Admin)�� 542 Hollington v F Hewthorn & Co Ltd [1943] KB 587�� 522, 541–43 Hunter v Chief Constable of the West Midlands Police [1980] QB 283�� 542 Hussein v Chung Fook Kam [1970] AC 942, [1969] 3 All ER 1626��23, 27, 202–4, 236 Inner West London Assistant Deputy Coroner v Channel 4 Television Corpn [2007] EWHC 2513 (QB), [2008] 1 WLR 945�� 218 IS v The Director of Legal Aid Casework and The Lord Chancellor [2015] EWHC 1965 (Admin)�� 179 Isayeva v Russia (2005) 41 EHRR 38��135, 470, 473 Janowiec v Russia (2014) 58 EHRR 30�� 126, 128–29, 342 JIH v News Group Newspapers Ltd [2011] EWCA Civ 42, [2011] 1 WLR 1645�� 267 Jones v DAS Legal Expenses Insurance Co Ltd [2003] EWCA Civ 1071, [2004] IRLR 218�� 62

Table of Cases xxi Jones v HM Coroner for Southern District of Greater London [2010] EWHC 931, [2010] Inquest LR 80�� 53 Jordan McCaughey, Re [2007] 2 AC 226�� 64 Jordan v Lord Chancellor [2007] UKHL 14�� 117 Jordan v United Kingdom (2003) 37 EHRR 2��98, 100–102, 104, 106, 108, 111, 113–14, 127, 169, 186, 452, 454 Jordan’s Applications for Judicial Review, Re [2014] NICA 36�� 62 JX MX v Dartford and Gravesham NHS Trust [2015] EWCA Civ 96, [2015] EMLR 14��254, 264, 267 Kalender v Turkey, no. 4314/02�� 459, 469 Keenan v United Kingdom (2001) 33 EHRR 38, 10 BHRC 319, [2001] Inquest LR 8��44, 84, 86, 94–95, 108, 123, 130–32, 374, 378, 401, 409, 529 Kelly (Christopher John) (Deceased), Re (1997) 161 JP 417, [2000] Inquest LR 88�� 506, 511 Kholodov and Kholodova v Russia App no 30651/05 (ECtHR, 14 September 2006)�� 126 Kilic v Turkey [1998] EHRR 23rd October 2000�� 245 Kilinç v Turkey (Application No 40145/98) (unreported) given 7 June 2005�� 115, 130, 460–61 King v Milton Keynes General NHS Trust [2004] Inquest LR 72�� 194 Kolyadenko v Russia (2013) 56 EHRR 2�� 134, 402 Lawal v Northern Spirit [2003] UKHL 35�� 60 LCB v UK (1999) 27 EHRR 212, 4 BHRC 447��85, 98, 104, 339 Leray and Others v France (dec.), no. 44617/98, 16 January 2008�� 401 Leyland Shipping Company Limited v Norwich Union Fire Insurance Society Limited [1918] AC 350�� 301 LM, Re (Reporting Restrictions; Coroner’s Inquests) [2007] EWHC 1902 (Fam), [2007] Inquest LR 221�� 265 Locabail (UK) Limited v Bayfield Properties Limited [2000] QB 451�� 60 Lopes de Sousa Fernandes v Portugal, European Court of Human Rights, App No 56080/13, Judgment of 15 December 2015�� 337–38, 347, 379 Lownds v Home Office [2002] EWCA Civ 365�� 193 Lynch v Chief Constable of Warwickshire Police & Ors (High Court, SCCO, 14 November 2014)�� 192–94 Maiorano and Others v Italy, no. 28634/06�� 472 Mammadov v Azerbaijan (2014) 58 EHRR 18�� 134, 395, 402–3 Markham v HM Coroner Greater London (Western District) [2013] EWHC 243 (Admin)�� 241 McCann v United Kingdom (A/324) 27 September 1995, (1996) 21 EHRR 97��44, 46, 95–100, 104, 108, 114, 123, 130, 309, 311–12, 451, 454, 473 McCaughey v United Kingdom (2014) 58 EHRR 13�� 98, 117–18 McCaughey’s Application for Judicial Review, Re [2011]UKSC20, [2012]1 AC 725, [2011] Inquest LR 22��45–46, 77, 98–99, 117, 126–28, 342

xxii Table of Cases McDonnell v UK (2014) ECHR 1370�� 98, 118 McGhee v National Coal Board [1973] 1WLR1�� 25 McGlinchey and Others v the United Kingdom, no. 50390/99�� 132 McKerr, In re [2004] UKHL 12, [2004] 1 WLR 807, [2004] Inquest LR 35�� 126–27 McKerr v Armagh Coroner [1990] 1 WLR 649�� 64, 240 Medacs (Interested Parties) [2016] EWHC 6 (Admin)�� 387 Medicaments and Related Classes of Goods, Re (2) [2001] WLR 700�� 60 Menson v UK (2003) 37 EHRR CD220, [2003] Inquest LR 146, [2003] Po LR 155��47, 103–6, 330, 413, 452 Michael and others v The Chief Constable of South Wales Police [2015] UKSC 2, [2015] 2 WLR 343�� 451 Midland Bank v Hett Stubbs and Kemp [1979] 1 Ch 384�� 332 Mitchell v Glasgow City Council [2009] UKHL 11, [2009] 1 AC 874��33, 83, 86, 88–89 Mohammed v MOD [2015] EWCA Civ 843�� 463 Moldovan v Romania, App nos 41138/98 and 64320/01 (ECtHR, 13 March 2001)�� 126 Mosendz v Ukraine, App no 52013/08 (ECtHR, 17 January 2013)��130, 454, 460 Moss v HM Coroner for the North and South Districts of Durham and Darlington [2008] EWHC 2940 (Admin), [2008] Inquest LR 108�� 31–32, 132–33, 344–47 Mouisel v France, no. 67263/01�� 132 N (a child) v HM Coroner for City of Liverpool [2001] EWHC 922 (Admin), [2001] Inquest LR 249�� 231, 304 Nachova v Bulgaria (2006) 42 EHRR 43, 19 BHRC 1��79, 82–83, 99, 109–10, 116, 441 Nathan Jones (on behalf of Sharon Mills and Nathan Jones, the Parents of Mason Jones) v HM Coroner for Gwent v William Tudor [2015] EWHC 3178 (Admin)�� 539 News Verlags GmbH & Co KG v Austria (2000) 31 EHRR 246�� 266 Nicholls v HM Coroner for the City of Liverpool [2001] EWHC 922 (Admin)�� 538 Northern Ireland Human Rights Commission, Re [2002] UKHL 25�� 138, 146–48 Officer L and Others, In re [2007] UKHL 36, [2007] 1 WLR 2135, Inquest LR 214�� 85, 90, 92, 134, 254, 257–59, 261, 446–47, 449 Officers C, D, H and R, In the matter of an Application by [2012] NICA 47��91, 134, 256, 449 Öneryildiz v Turkey (2005) 41 EHRR 20, 18 BHRC 145, [2004] Inquest LR 108��79–82, 85, 98–99, 115, 134, 395–96, 398, 401 Opuz v Turkey (2010) 50 EHRR 695�� 256, 259 Osman v United Kingdom (2000) 29 EHRR 245, 5 BHRC 293, [2000] Inquest LR 101�� 33–34, 79–81, 85–88, 90–92, 95, 104, 115, 133, 135, 254–55, 257, 259, 374, 401, 431, 445–51, 455, 472 P v Cheshire West and Cheshire Council; P and Q v Surrey County Council [2014] UKSC 19�� 379 Pannullo and Fortei v France (2003) 36 EHRR 42�� 56 Pereira Henriques v Luxembourg European Court of Human Rights, 9 May 2006, App no 60255/0032��247, 401, 500

Table of Cases xxiii Platts v HM Coroner for South Yorkshire (East District) and Chief Constable of South Yorkshire Police [2008] EWHC 2502 (Admin)�� 138, 144–45 Porter v Magill [2002] 2 AC 357�� 60–61 Powell v United Kingdom [2000] Inquest LR 19, (2000) 30 EHRR CD362��133, 338, 341, 374, 377–78 R (A) v Lord Saville and others [2000] 1 WLR 1855, [1999] All ER 860��90, 259, 261–62, 447 R (Ahmed) v HM Coroner for South and East Cumbria [2009] EWHC 1653 (Admin), [2009] Inquest LR 177�� 64, 68, 149, 159, 223–24, 240 R (Aineto) v HM Coroner for Brighton and Hove [2003] EWHC 1896 (Admin)�� 199–200 R (Al-Fayed (Interested Person)) v Coroner of the Queens Household (2001) 58 BMLR 205, [2000] Inquest LR 50�� 137, 147 R (Ali Zaki Mousa) v Secretary of State for Defence [2013] EWHC 2941 (Admin)�� 187 R (Amin) v Secretary of State for the Home Department [2003] UKHL 51, [2004] 1 AC 653, [2003] Inquest LR 1��44, 46–47, 75, 80, 98–99, 102, 105–9, 111, 114, 123, 125, 130, 168–69, 174, 184, 186, 241, 245, 263, 310, 329, 372, 391, 412, 418, 529 R (Anderson) v HM Coroner for Inner North Greater London [2004] EWHC 2729 (Admin), [2004] Inquest LR 155��294, 439, 531 R (Antoniou) v Central and North West London NHS Foundation Trust [2013] EWHC 3055 (Admin), [2013] Inquest LR 224�� 29, 116–17, 122, 195, 375, 377 R (Associated Newspapers Ltd) v Leveson [2012] EWHC 57 (Admin)�� 331–33 R (Barber) v City of London Coroner [1975] 1 WLR 1310, [1975] 3 All ER 538�� 296, 313 R (Bennett) v HM Coroner for Inner South London [2007] EWCA Civ 617, [2007] Inquest LR 163�� 318 R (Bentley) v HM Coroner for the District of Avon [2002] 166 JP 297, [2001] Inquest LR 205��67, 221–24, 228, 528 R (Benton) v HM Coroner for Birmingham and Solihull (1998) 162 JP 807, [2000] Inquest LR 72�� 287, 355 R (Bicknell) v Birmingham and Solihull Coroner [2007] EWHC 2547 (Admin), [2007] Inquest LR 244��26–27, 236, 353, 357–58 R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2010] EWCA Civ 65, [2011] QB 218�� 271 R (Bloom) v HM Assistant Deputy Coroner for the Northern District of London [2004] EWHC 3071 (Admin), [2004] Inquest LR 244�� 233 R (British Parachute Association) v Shrewsbury Coroner’s Court (1988) 152 JP 123�� 510, 512 R (Butler) v HM Coroner for the Black Country District [2010] EWHC 43 (Admin), [2010] Inquest LR 50��39, 48–50, 60, 68 R (Cairns) v HM Deputy Coroner for Inner West London [2011] EWHC 2890 (Admin), [2011] Inquest LR 121�� 68, 515

xxiv Table of Cases R (Cash) v HM Coroner for the County of Northamptonshire and Chief Constable of Northamptonshire Police [2007] EWHC 1354 (Admin), [2007] Inquest LR 147��68, 308, 310 R (Chambers) v HM Coroner for Preston and West Lancashire [2015] EWHC 31 (Admin)��149, 166–67, 238, 390–91 R (Chief Constable of Devon and Cornwall Police) v HM Coroner for Plymouth, Torbay and South Devon [2013] EWHC 1485 (Admin), [2013] Inquest LR 269�� 65–66 R (Chief Constable of Staffordshire) v HM Coroner for Coventry (2000) 164 JP 665, [2000] Inquest LR 35�� 299 R (Clayton) v South Yorkshire Coroner [2005] EWHC 1196, [2005] Inquest LR 110�� 312, 529 R (Clegg) v HM Coroner for Wiltshire (1997) 161 JP 521, [2000] Inquest LR 96��299, 301, 303, 349, 509 R (Coker) v HM Coroner for South London [2006] EWHC 614 (Admin)�� 70–71, 75 R (Collins) v HM Coroner for Inner South London [2004] EWHC 2421 (Admin)�� 204–5 R (Cooper) v HM Coroner for North East Kent [2014] EWHC 586 (Admin), [2014] Inquest LR 121��66–67, 284, 313, 317 R (Craik) v HM Coroner for Wiltshire & Swindon [2004] EWHC 2653 (Admin)��63, 66, 526, 536 R (D) v Secretary of State for the Home Department [2006] EWCA Civ 143, [2006] 3 All ER 946, [2006] Inquest LR 35��75, 98–99, 110–11, 115, 168–70, 422, 520 R (Dallaglio) v Inner West London Coroner [1994] All ER 139��32–33, 39, 49–50, 60, 165, 235, 238, 273, 276, 344, 346 R (Davey) v HM Coroner for Leicester City and South Leicestershire v University Hospitals of Leicester NHS Trust [2014] EWHC 3982 (Admin)�� 201–2, 204 R (Davies) v Birmingham Deputy Coroner (Costs) [2004] EWCA Civ 207�� 535 R (Davies) v HM Deputy Coroner for Birmingham [2003] EWCA Civ 1739, [2003] Inquest LR 27�� 44, 414 R (Douglas-Williams) v Inner South London Coroner [1990] 1 All ER 344��49, 57, 240, 277, 313–14, 439, 522, 525, 530 R (Driscoll) v Greater London (South District) Coroner CO/2609/93, (1995) 159 JP 45�� 137–38, 141–43, 145–46 R (Dudley & ors) v East Sussex County Council [2003] EWHC 1093 (Admin)�� 395 R (Duffy) v HM Deputy Coroner for the County of Worcestershire [2013] EWHC 1654 (Admin), [2013] 134 BMLR 86, [2013] Inquest LR 172�� 65, 241 R (Duggan) v HM Assistant Deputy Coroner for the Northern District of North London [2014] EWHC 3343 (Admin), [2015] 3 All ER 237, [2014] Inquest LR 232�� 292–93, 430, 442 R (Farah) v HM Coroner for Southampton and New Forest District of Hampshire [2009] EWHC 1605 (Admin), [2009] Inquest LR 220�� 51–52, 67, 313–14 R (Fullick) v HM Senior Coroner for Inner North London and Others [2015] EWHC 3522 (Admin)�� 72–73, 121, 203–4, 206–7

Table of Cases xxv R (Gentle and Another) v Prime Minister and others [2008] UKHL 20, [2008] 1 AC 1356�� 98, 112–13 R (Goodson) v Bedfordshire and Luton Coroner [2004] EWHC 2931(Admin), [2006] 1 WLR 432, [2005] 2 All ER 791, [2004] Inquest LR 226��62, 149, 162–63, 186, 234, 240, 341, 345 R (Gray) v West London Coroner [1988] QB 467��291, 295, 313, 439–40, 511–12 R (Gudanaviciene) v The Director of Legal Aid Casework [2014] EWCA Civ 1622�� 175, 177–79, 187–89 R (Haggerty) v St Helens Council [2003] EWHC 803 (Admin)�� 395 R (Hair) v HM Coroner for Stafford South [2010] EWHC 2580 (Admin), [2010] Inquest LR 197��68, 159–60, 274, 280 R (Halpin) v Attorney General [2011] EWHC 3759, [2011] Inquest LR 244�� 30, 540 R (Haqq) v (1) HM Coroner for Inner West London (2) Alfia Sultana Haqq [2003] EWHC 3366 (Admin)�� 55 R (Hay) v HM Coroner for Lincoln QBD 19 February 1999, [2000] Inquest LR 1��75, 149, 154–55, 167–68, 220–22, 228, 240, 277, 482, 537 R (Heseltine) v HM Coroner for Greater Manchester [2010] EWCA Civ 267, [2010] Inquest LR 87�� 56 R (Hicks) v HM Coroner for Southwark [1987] 1 WLR 1624�� 155–56, 217–18, 300–301, 531 R (Homberg) v HM Coroner for East Sussex Western District (1994) 158 JP 357�� 67 R (Howlett) v HM Coroner for the County of Devon [2006] EWHC 2570 (Admin), [2006] Inquest LR 176�� 538 R (Humberstone) v Legal Services Commission [2010] EWCA Civ 1479, [2011] 1 WLR 1460, [2010] Inquest LR 221��99, 118, 132–33, 174, 176, 184–87, 342 R (Hurst) v HM Coroner for Northern District London [2007] UKHL 13, [2007] 2 AC 189, [2007] Inquest LR 29��32, 45–46, 48, 98, 119, 126–27, 309, 311–12, 346 R (Jacobs) v HM Coroner for Northumberland (2000) 53 BMLR 21, [2000] Inquest LR 43�� 55 R (Jamieson) v HM Coroner for North Humberside and Scunthorpe [1995] QB 1, [1994] 3 WLR 82��1, 25, 32, 40, 42–44, 46–50, 56, 119, 121, 123, 227, 230–32, 235, 238, 240, 271, 285, 297–307, 309, 311–12, 344, 346–47, 350–53, 417, 425, 513, 528, 531 R (Joseph) v Director of Legal Aid Casework & Anr [2015] EWHC 2749 (Admin)�� 176 R (Kahn) v West Hertfordshire Coroner [2002] EWHC 302 (Admin)�� 63 R (Kent County Council) v HM Coroner for Kent (North-West District) [2012] EWHC 2768 (Admin), [2012] Inquest LR 110��92, 133, 395, 399 R (Keyu) v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69�� 77, 128

xxvi Table of Cases R (Khan) v Secretary of State for Health [2003] EWCA Civ 1129, [2004] 1 WLR 971, [2003] Inquest LR 70��133, 183–84, 186, 297, 312, 345, 347, 414, 525 R (L (A Patient)) v Secretary of State for Justice [2008] UKHL 68, [2009] 1 AC 588, [2008] Inquest LR 88��30, 93, 114, 130, 376 R (Lagos) v HM Coroner for the City of London [2013] EWHC 423 (Admin), [2013] Inquest LR 34�� 68, 225, 296–97 R (Laurence) v West Somerset Coroner [2008] EWHC 1293 (Admin), [2008] Inquest LR 42�� 28, 56 R (LePage) v (1) HM Assistant Deputy Coroner for Inner South London [2012] EWHC 1485 (Admin), [2012] Inquest LR 31��57, 63–64, 149, 165–67, 239, 391 R (Letts) v The Lord Chancellor [2015] EWHC 402 (Admin), [2015] 2 Costs LR 217��99, 118, 122, 125–26, 130, 175–76, 189–90 R (Lewis) v HM Coroner for the Mid and North Division of the County of Shropshire [2009] EWCA Civ 1403, [2010] 1 WLR 1836, [2009] Inquest LR 294��64, 120, 239–40, 304, 312, 394, 425, 507–8, 513, 516 R (LF) v HM Senior Coroner for Inner South London and another [2015] EWHC 2990 (Admin)�� 207 R (Lin) v Secretary of State for Transport [2006] EWHC 2575 (Admin), [2006] Inquest LR 161��1–2, 39, 71, 257, 274, 282, 329, 515 R (Long) v Secretary of State for Defence [2014] EWHC 2391 (Admin), [2014] HRLR 20��98, 130, 134 R (Longfield Care Homes) v HM Coroner for Blackburn [2004] EWHC 2467 (Admin), [2004] Inquest LR 50�� 303, 306–7, 532–33 R (Mack) v HM Coroner for Birmingham & Solihull [2011] EWCA Civ 712, [2011] Inquest LR 17��64, 149, 160–62, 167, 239–40, 353–54, 391 R (Manning) v DPP [2001] QB 330, [2000] Inquest LR 133�� 439, 498 R (McCurbin) v Wolverhampton Coroner [1990] 2 All ER 759, 768 [1990] 1 WLR 719�� 530 R (McLeish) v HM Coroner for the Northern District of Greater London [2010] EWHC 3624 (Admin), [2010] Inquest LR 202�� 55, 224–25 R (Medihani) v HM Coroner for Inner South District of Greater London [2012] EWHC 1104 (Admin), [2012] Inquest LR 22�� 33–35 R (Middleton) v HM Coroner for Western Somerset [2004] UKHL 10, [2004] 2 AC 182, [2004] Inquest LR 17�� 1–2, 8, 30, 32, 40, 43–48, 51, 56, 64, 79, 98, 107–9, 113–14, 119, 121–24, 126, 164, 174–76, 196, 240, 246, 271, 284, 303–6, 308–12, 315, 342–43, 347, 360, 372, 376, 389, 400, 406, 415–17, 425–26, 440, 462, 464, 512–13, 515–16 R (Mousa) v Secretary of State for Defence [2013] EWHC 1412 (Admin)�� 474 R (Mowlem plc) v Avon Assistant Deputy Coroner [2005] EWHC 1359 (Admin), [2005] Inquest LR 87��318, 510, 533

Table of Cases xxvii R (Mulholland) v HM Coroner for St Pancras [2003] EWHC 2612 (Admin), [2003] Inquest LR 60�� 232–33 R (Nicholls) v Liverpool City Coroner [2001] EWHC Admin 922�� 162, 235 R (O’Connor) v HM Coroner for District of Avon [2009] EWHC 854 (Admin)�� 290, 532 R (on the application of Al-Fayed) v Assistant Deputy Coroner of Inner West London [2008] EWHC 713 (Admin), [2008] Inquest LR 39�� 158–59 R (on the application of Litvinenko) v Secretary of State for the Home Department [2014] EWHC 194 (Admin), 11 February 2014�� 11 R (on the application of Paul) v Assistant Deputy Coroner of Inner West London [2007] EWCA Civ 1259, [2008] 1 WLR 1335, [2008] 1 All ER 981, [2007] Inquest LR 270�� 155–58 R (on the application of Southall Black Sisters) v HM Coroner for West Yorkshire [2002] EWHC 1914 (Admin)�� 137 R (Palmer and Palmer) v HM Coroner for the County of Worcestershire [2011] EWHC 1453 (Admin)�� 34 R (Paul) v Deputy Coroner for the Queen’s Household and Assistant Deputy Coroner for Surrey [2008] QB 172�� 56, 205–7 R (Pereira) v HM Coroner for Inner South London [2007] 1 WLR 3256, [2007] Inquest LR 160�� 56 R (Pounder) v HM Coroner for the North and South Districts of Durham and Darlington [2010] EWHC 328 (Admin), [2010] Inquest LR 38�� 60–61 R (Revenue and Customs Commissioners) v Liverpool Coroner [2014] EWHC 1586 (Admin), [2015] QB 481�� 209, 217–19 R (Rotsztein) v HM Senior Coroner for Inner London [2015] EWHC 2764 (Admin)�� 55 R (Sacker) v West Yorkshire Coroner [2004] 1 WLR 796��130, 307, 347, 391, 424 R (Saunders and another) v Independent Police Complaints Commission [2008] EWHC 2372 (Admin), [2009] 1 All ER 379�� 150, 171–72 R (Secretary of State for Justice) v HM Deputy Coroner for the Eastern District of West Yorkshire [2012] EWHC 1634 (Admin)�� 284 R (Secretary of State for the Home Department) v Assistant Deputy Coroner for Inner West London (the 7/7 Bombings Inquests) [2010] EWHC 3098 (Admin), [2011] 1 WLR 2564�� 75 R (Shafi) v HM Coroner for East London [2015] EWHC 2106 (Admin), [2015] Inquest LR 154��56, 68, 71–72, 195, 202–3, 207, 407, 427, 542 R (Sharon Palmer) v HM Coroner for Exeter and East Devon [2000] Inquest LR 78�� 63, 318 R (Shaw) v (1) HM Coroner and (2) Assistant Deputy Coroner for Leicester City and South Leicestershire [2013] EWHC 386 (Admin), [2013] Inquest LR 10�� 61–62 R (Smith) v Oxfordshire Assistant Deputy Coroner [2010] UKSC 29, [2011] 1 AC 1, Inquest LR 119��40, 47–48, 80, 84, 98, 113–15, 119, 122, 124, 130, 134, 223, 227, 311, 453–54, 459, 461, 464, 466, 468, 470 R (Southall Black Sisters) v HM Coroner for West Yorkshire [2002] EWHC 1914 (Admin)�� 137, 146 R (Sreedharan) v HM Coroner for the County of Greater Manchester and others [2013] EWCA Civ 181 (CA), [2013] Inquest LR 42�� 68, 122

xxviii Table of Cases R (SSHD) v Assistant Deputy Coroner for Inner West London [2010] EWHC 3098 (Admin), 1 December 2010�� 11 R (Stanley) v HM Coroner for Inner North London [2003] EWHC 1180 Admin, [2003] Inquest LR 38�� 99, 162, 235, 244–45, 440, 442 R (Stringer) v HM Coroner for South Yorkshire (1993) 17 BMLR 92�� 297 R (Sutovic) v Northern District of Greater London Coroner [2006] EWHC 1095 (Admin), [2006] Inquest LR 104�� 537–38 R (Takoushis) v HM Coroner for Inner North London [2005] EWCA Civ 1440, [2006] 1 WLR461, Inquest LR 185��2, 32, 39, 49–51, 133, 149, 163, 167, 201, 235, 239–40, 343–45, 347, 391 R (Thomas) v Havering London Borough Council; R (W) v Coventry City Council [2008] EWHC 2300 (Admin)�� 395 R (Thompson) v HM Coroner for South London (1982) 126 SJ 625, Times, 9 July 1982 Divisional Court�� 41 R (Touche) v Inner North London Coroner [2001] QB 1206, [2001] Inquest LR 223��24–26, 28, 56, 230, 236–37, 288, 294, 304, 337, 350–51, 357–58, 527–28, 535–36 R (Tristram) v HM Coroner for Swansea and Gower (2000) 164 JP 191, [2000] Inquest LR 45�� 303, 531 R v Adomoko [1995] 1 AC 171�� 245, 345 R v Bedfordshire Coroner ex parte Local Sunday Newspapers [1999] 164 JP 283, [2000] 164 JPN 370�� 263 R v Beedie, Court of Appeal (Criminal Division) 11 March 1997, [1998] QB 356�� 495, 497 R v Bennett [2014] EWCA Crim 2652, [2015] 1 Cr App R 16, [2015] Crim LR 373�� 293 R v Chief Constable of the Thames Valley Police, ex parte Cotton [1990] IRLR 344�� 166 R v Chief Constable of West Midlands Police ex parte Wiley [1995] 1 AC 274, [1994] 3 WLR 433�� 271 R v Coroner for Inner North London ex parte Diesa Koto [1993] 157 JP 857�� 63 R v Coroner for Western District of East Sussex, ex p Homber (1994) 158 JP 357�� 351–52 R v Criminal Injuries Compensation Board, ex parte Leatherland and others (unreported, transcript dated 2nd July 2000)�� 222 R v Divine ex parte Walton [1930] 2KB 29, [1930] All ER Rep 302�� 530, 539 R v East Sussex Coroner ex parte Healy [1989] 1 All ER 30, [1988] 1 WLR 1194�� 143 R v Galbraith [1981] 1 WLR 1039, (1981) 73 Cr App R 124 (CA)��49, 284, 286, 315–16, 318 R v Hickinbottom 19 April 2005 (T20047165), [2007] Inquest LR 1�� 233 R v HM Coroner ex parte Peach [1980] 1 QB 211�� 10, 219–20, 222–25, 528 R v HM Coroner for Coventry ex p O’Reilly, unreported, 6th March 1996��155, 537, 540 R v HM Coroner for Derby and South Derbyshire ex parte Hart CO/3882/98 (2000) 164 JP 429�� 145 R v HM Coroner for East Berkshire, ex parte Clara Buckley (1993) 157 JP 425�� 274, 280 R v HM Coroner for Inner North London, ex parte Cohen (1994) 158 JP 644�� 273, 278

Table of Cases xxix R v HM Coroner for the Eastern District of the Metropolitan County of West Yorkshire, ex p National Union of Mineworkers, Yorkshire Area (1985) 150 JP 58�� 206 R v Inner London Coroner ex parte Linnane [1989] 1 WLR 395��10, 199, 203, 383, 385 R v Legal Aid Board ex parte Kaim Todner [1999] QB 966, [1998] 3 WLR 925�� 263 R v Poplar Coroner ex p Thomas [1993] QB 610, [1993] 2 All ER 381��23, 25, 142, 355 R v South London Coroner ex p Ruddock (8 July 1982)�� 440 R v Wolverhampton Coroner, ex parte McCurbin [1990] 1 WLR 719�� 291, 318 R (Warren) v HM Assistant Coroner for Northamptonshire [2008] Inquest LR 65, [2008] EWHC 966 (Admin)��164–67, 200, 238–39, 246, 278, 388, 390–91 R (Weeks) v South London Coroner [1996] EWHC Admin 329�� 22–24 R (Wiggins) v HM Assistant Coroner for Nottinghamshire [2015] EWHC 1658 (Admin)��174, 176, 394 R (Wilkinson) v HM Coroner for Greater Manchester South District [2012] EWHC 2755, (2012) 176 JP 665�� 291, 497 R (Worch) v Greater Manchester Coroner [1987] 3 All ER 661�� 55 R (Wright) v Secretary of State for the Home Department [2001] EWHC (Admin), [2001] Inquest LR 66�� 29, 238, 243–44 R (Wright) v Secretary of State for the Home Department [2001] UKHRR 1399��162, 166, 235, 390 Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2, [2012] 2 AC 72, [2012] Inquest LR 1��33, 77, 79, 85–86, 91, 132–33, 175, 255–56, 258–59, 349, 374–75 Rajkowska v Poland (dec.), no. 37393/02, 27 November 2007�� 401 Ramsahai v The Netherlands (2008) 46 EHRR 43, [2007] Inquest LR 103��98–99, 111–12, 116, 172, 452 Rapier, Re [1988] 1 QB 26��68, 155, 531, 537 Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360, [1999] 3 WLR 363�� 443–44 Renolde v France (2009) 48 EHRR 969�� 256, 259 Ribitch v Austria, 4 December 1995, Series A no. 336�� 131 Roach v The Home Office [2009] EWHC 312 (QB), [2009] Inquest LR 45�� 180–81, 190–92 Rogers v Hoyle [2015] QB 265��522, 541, 543 Salman v Turkey (2000) 34 EHHR 425�� 115, 131 Salman v Turkey (2002) 34 EHRR 17�� 410–11, 451 Sarjantson v Chief Constable of Humberside [2013] EWCA Civ 1252, [2014] QB 411, [2013] Inquest LR 252��95, 133, 450 Savage v South Essex Partnership NHS Foundation Trust [2008] UKHL 74, [2009] 1 AC 681, [2008] Inquest LR 126��80, 84–86, 91–92, 96, 115, 130, 132–33, 349, 372–73, 377, 454, 460–61, 466 Scholes v Secretary of State for the Home Department [2006] EWCA Civ 1343, [2006] Inquest LR 180��305, 307, 418 Shanaghan v United Kingdom App. No.37715/97, (ECtHR, May 4, 2001)�� 104 Sheridan-Higgins v HM Coroner for Manchester [2015] Inquest LR 7�� 28 Sieminska v Poland App no 37602/97 (ECtHR, 29 March 2001)�� 341

xxx Table of Cases Šilih v Slovenia (2009) 49 EHRR 37, [2009] Inquest LR 117�� 98, 126–28, 342 Slimani v France (2006) 43 EHRR 49�� 131–32 Smith v Ministry of Defence [2014] 1 AC 52��80, 84, 114, 134–35, 453–55, 459, 462–63, 467–68, 470–71 South Tyneside Borough Council v Wickes Building Supplies Ltd [2004] NPC 164�� 218 Stobart v Nottingham Health Authority [1993] PIQR P259, [1992] 3 Med LR 284�� 228 Stoyanovi v Bulgaria App no 42980/04 (ECtHR, 9 November 2010)��80, 99, 117, 134, 246, 453–54, 458, 466–67, 469, 471–72 Tabarn, In Re [1998] EWHC (Admin) 8, [2000] Inquest LR 52�� 295, 538–39 Tajik Aluminium Plant v Hydro Aluminium AS (Practice Note) [2006] 1 WLR 767�� 218 Tanribilir v Turkey App no 21422/93 (ECtHR, 16 November 2000)�� 373 Tarariyeva v Russia (2009) 48 EHRR 26�� 419–20 Taylor v Anderton (Police Complaints Authority Intervening) [1995] 1 WLR 447, [1995] 2 All ER 420�� 271 Terry v East Sussex Coroner [2002] QB 312�� 28, 35–36, 236 Thompson v HM Assistant Coroner for County Durham and Darlington [2015] EWHC 1781 (Admin)�� 242 Tsintsabadze v Georgia, App no 35403/06 (ECtHR, 15 February 2011)�� 420–21 Tweed v Parades Commission for Northern Ireland [2006] UKHL 53�� 519 Van Colle and another v Chief Constable of the Hertfordshire Police [2008] UKHL 50��33–34, 85, 87–88, 92, 133, 256–59, 400, 447–49 Von Hannover v Germany [2004] EMLR 21, (2005) 40 EHRR 1�� 267 Voroshilov v Russia App no 21501/02 (ECtHR, 8 December 2005)�� 126 W, Re An Application For Judicial Review [2004] NIQB 67�� 90, 446 Watts v United Kingdom (2010) 51 EHRR SE5, [2011] Inquest LR 157�� 85, 89, 95, 133, 395, 398–99 Wilson v HM Senior Coroner for Birmingham and Solihull [2015] EWHC 2561 (Admin)�� 210, 226 Wright v Bennett [1948] 1 KB 601�� 191

TABLE OF STATUTES AND INTERNATIONAL INSTRUMENTS

Access to Justice Act 1999�� 118, 482 Sch 2�� 173 Armed Forces Act 2006 s 300(7)�� 493 s 367�� 456 Births and Deaths Registration Act 1953, s 29(4)�� 242 Care Act 2014�� 368 Charter of Fundamental Rights of the European Union�� 177 Art 47�� 177–78, 188 Children Act 1989�� 399–400 Children Act 2004 s 13(1)�� 215 s 31(1)�� 215 Civil Evidence Act 1968�� 541 Commissioners for Revenue and Customs Act 2005�� 218 Coroners Act 1887�� 8 s 6�� 41 Coroners Act 1988, s 13�� 31 Coroners Act 1988�� 2, 7, 9–10, 15, 26, 36, 51, 76, 107–8, 161, 182–83, 195, 200, 202, 205, 210, 237, 416, 483, 521, 530 s 8��10, 24, 26, 237 s 8(1)�� 23 ss 8–10�� 195 s 8(1)(a)�� 195 s 8(1)(b)�� 195 s 8(1)(c)�� 498 s 8(3)�� 195, 201 s 8(3)(b)�� 199, 498 s 8(3)(c)�� 200 s 8(3)(d)��10, 50, 195, 198–99, 201–2, 343 s 8(6)�� 498 s 11��107, 120, 507 s 11(2)�� 240 s 11(5)��1, 305, 514 s 11(5)(b)�� 314 s 11(5)(b)(ii)�� 42, 44–45, 109, 123–24, 305–6, 308, 417 s 12�� 195 s 13��167, 210–11, 233, 391, 482, 517, 521, 524, 535, 538 s 13(1)�� 13

xxxii Table of Statutes and International Instruments s 13(1)(b)��35–36, 242, 522, 540 s 13(2)�� 537 s 15�� 26 s 16�� 31, 292 s 16(1)(b)�� 496 s 16(3)�� 33–34 s 17�� 292 s 17A�� 482 s 20(5)�� 292 Coroners and Justice Act 2009��1–2, 7, 9–13, 15–17, 21–22, 36, 39–40, 43, 48, 55, 57, 69–70, 119, 122, 124, 137, 149–50, 154, 173, 195–96, 199, 202–3, 209–11, 215, 217–19, 249, 251, 268, 270, 283, 317, 319, 360, 380–82, 384–86, 396, 407, 428, 455, 489, 498, 503, 521, 524–25 s 1�� 15, 17–18, 22, 37, 58, 203, 338, 407 s 1(1)�� 15 s 1(1) and (2)�� 55 s 1(2)(c)�� 405 s 1(4)�� 26 s 1(7)�� 21 s 4�� 16, 18, 21, 35–36, 58, 407 s 4(3)�� 36 s 4(3)(a)�� 18, 36 s 5��39, 67, 78–79, 107, 122, 227, 283, 285, 305–6, 321, 396 s 5(1)(b)�� 122 s 5(2)�� 40, 121–22 s 5(3)�� 285 s 6��16, 18, 21, 35–36 s 7��10, 196, 202, 407–8, 489–90, 498 s 7(2)�� 198 s 7(2)(a)�� 73, 195, 203, 206–7, 360, 382, 406, 428 s 7(2)(a)–(b)�� 203 s 7(2)(b)��73, 203–4, 406, 428 s 7(2)(c)�� 489 s 7(3)�� 73, 202–7 s 7(4)�� 489 ss 7–9�� 195 s 8�� 196–97 s 9�� 197, 285 s 10�� 283, 305–6, 326 s 10(1)�� 18 s 10(2)��39, 43, 285 s 10(2)(b)�� 293, 443 s 11��16, 56, 408 s 12�� 455 s 13(1)(b)�� 56 s 13(2)�� 28 s 14��18, 55, 58

Table of Statutes and International Instruments xxxiii s 15�� 28 s 16��12, 321, 327 s 17�� 455–56 s 19�� 11 s 19(2)�� 320 ss 22–24�� 57 ss 25–31�� 57 s 32�� 217 s 35�� 57 s 36(7)�� 13 s 40�� 10 s 42�� 13 s 43�� 11, 15 s 45��56, 251, 478 s 45(3)�� 475 s 45(a)�� 249 s 47��137–39, 141, 431, 433 s 47(2)(i)�� 138 s 47(2)(m)�� 137 s 48��195, 405, 428 s 48(2)�� 382 s 50�� 455 s 51�� 173 s 182(5)�� 212 Sch 1�� 16, 18, 21, 35, 327, 408, 496 para 1�� 16 para 2�� 16 para 2(6)�� 16 para 3�� 16, 527 para 3(1)�� 319 para 3(2)�� 16 para 4�� 16 para 5�� 16 para 7�� 17 para 8�� 17 para 11�� 197 Sch 2�� 57 Sch 3�� 57 para 4�� 57 para 5�� 57 para 13�� 57 para 14�� 57 Sch 5�� 212, 218–19, 251, 268, 435, 478 para 1�� 149, 478 paras 1 and 2�� 151 paras 1–5�� 56 para 2�� 149, 478 para 6�� 56 para 7�� 12, 36, 55, 79, 320, 327–28, 503–4, 508 para 7(1)�� 119, 503

xxxiv Table of Statutes and International Instruments para 7(1)(b)�� 504, 509 para 7(1)(b)–(c)�� 503 para 32�� 211–12 Sch 6�� 150 para 6�� 151 para 7�� 151 para 8�� 151–52 para 9�� 152 para 10�� 152 para 33�� 212–13 Pt 2�� 151 Pt 3�� 152 Sch 8�� 57 Sch 10�� 18 Sch 23, pt 1, s 178�� 210 Courts and Legal Services Act 1990, s 75�� 57 Criminal Justice Act 1991, s 80�� 492 Criminal Justice Act 2003�� 152 Criminal Justice and Public Order Act 1994 s 102�� 492 s 118�� 492 s 137(2)�� 436 Customs and Excise Management Act 1979, s 8(2)�� 479 Dentists Act 1984, s 53(1)�� 493 European Convention on Human Rights�� 1, 40, 43, 46–47, 56, 75, 78, 84, 87, 98, 107, 112, 116–18, 120–21, 126–29, 131–32, 149–50, 174–75, 178, 184–85, 209, 227, 230, 234, 237, 246, 250, 262–63, 271, 280–81, 283, 306, 308–9, 329, 344, 357–58, 372, 380–81, 395, 426, 440, 443, 454, 468, 507, 515, 521, 526 Art 1�� 84, 100–101 Art 2�� 1, 14, 24, 29–34, 40, 43, 45–47, 50–51, 62, 64, 70–71, 74–75, 77, 77–135, 149–50, 159, 162–65, 168–69, 171, 174–76, 183–87, 189–90, 192–93, 196, 209–10, 219, 223, 226–28, 230, 234–35, 237, 239–41, 243–47, 250, 254–56, 258–59, 261–63, 271, 274, 279–81, 283, 304–12, 329, 337–44, 347–49, 357–60, 372–80, 387–89, 392, 395–403, 406, 409–22, 424–26, 431, 438, 440–41, 443, 445–55, 457–74, 500, 507–8, 512–16, 526, 529, 532 Art 2(1)�� 80, 104 Art 2(2)�� 95–97 Art 2(2)(a)�� 97 Art 3��95, 101, 131, 474 Art 5�� 380–82, 457, 463 Art 6(1)�� 177–79, 189

Table of Statutes and International Instruments xxxv Art 8��56, 264, 267, 448, 459 Arts 8–11�� 97, 101 Art 9�� 459 Art 10��264, 267, 459 Art 13��95, 108, 181 Art 15�� 101 Family Law Act 1996�� 182 Pt 4�� 183 Fatal Accidents Act 1976�� 29, 444 Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976�� 305, 417 s 6�� 45, 123 s 6(1)(c)�� 45 Freedom of Information Act 2000, s 32(2)�� 323 Freedom of Information (Scotland) Act 2002, s 37(1)(b)�� 323 Health and Safety at Work etc. Act 1974�� 490 s 19�� 196 Health and Social Care Act 2012�� 11 Human Rights Act 1998��1–2, 13, 39–40, 44, 46, 78–79, 113–14, 122, 126–28, 182, 209, 243, 250, 254, 260, 274, 285, 309, 326, 374, 396, 440, 461–63, 529 s 3��46, 127, 309 s 6�� 78, 195, 197, 244, 250, 395, 405, 428 s 7�� 78, 244 s 22(4)�� 78 Sch 1�� 78 Pt 1�� 250, 396 Immigration Act 1971�� 436 Immigration and Asylum Act 1999�� 492 s 147�� 493 Inquiries Act 2005��16, 20, 250, 319, 327–28, 447, 477, 479, 483, 527 s 2�� 322 s 2(1)�� 320 s 3�� 322 s 4�� 322 s 5�� 20, 321–23 s 15�� 170 s 17�� 169 s 17(1)�� 169 s 17(2)�� 169 s 17(3)�� 169 s 18�� 323 s 19�� 11, 323–24 s 20�� 324–25 s 21(1)(a)�� 169 s 40(2)�� 320 Interception of Communications Act 1985�� 478 Juries Act 1974�� 197 s 1�� 197

xxxvi Table of Statutes and International Instruments Legal Aid, Sentencing and Punishment of Offenders Act 2012�� 173–74, 177–79, 521 s 8�� 173, 181 s 9�� 182 s 9(1)�� 173 s 10�� 182 s 10(3)�� 178 s 10(3)(a)�� 174–75, 187–88 s 10(3)(a)(ii)�� 177 s 10(3)(b)�� 174, 178, 187–88 s 10(4)�� 174 s 10(4)(a)�� 179 s 10(4)(b)�� 179 s 10(5)�� 174, 179 s 10(6)�� 173 Sch 1 pt 1�� 183 para 41�� 183 para 41(1)�� 173 para 41(2)(b)�� 174 para 41(3)�� 173 pt 2�� 183 pt 3�� 174, 183 Sch 5, pt 2�� 173 Mental Capacity Act 2005��196, 360, 371, 379 s 4A�� 369 s 16�� 369 Sch A1�� 22 paras 25–26�� 22 Mental Health Act 1983�� 30, 93, 116, 125, 349, 359–60, 363, 371, 375–76, 446, 492 s 2�� 360–61 s 3�� 29–30, 361, 376 s 4�� 362 s 5�� 30 s 17�� 363–64, 367 s 17A�� 363–64 s 17B�� 363–64 s 17C�� 364 s 17E�� 363, 365 s 17F�� 365 s 18�� 365, 367 s 23�� 365–66 s 25�� 365 s 37�� 366–67 s 40�� 368 s 40(4)�� 367 s 41�� 366–68 s 47�� 366, 368 s 58�� 362 s 62�� 362

Table of Statutes and International Instruments xxxvii s 135�� 368 s 136�� 368–69, 439 s 137�� 492 Sch 1�� 367–68 Mental Health (Care and Treatment) (Scotland) Act 2003�� 492 Merchant Shipping Act 1988�� 494 National Assistance Act 1948�� 368 Northern Ireland Act 1998�� 147 Occupiers’ Liability Act 1957�� 492 Police Reform Act 2002��139, 431, 434 Public Bodies Act 2011, s 33(1)�� 10 Road Safety Act 2006�� 292 Road Traffic Act 1988, s 2B�� 291 Senior Courts Act 1981�� 203, 428, 517–18, 520, 522, 529, 532, 535 s 51�� 180 s 51(1)�� 190 s 51(3)�� 190 Social Security Contributions and Benefits Act 1992, s 108�� 139

xxxviii

1 Introduction Inquest law has changed dramatically in the last 20 years. When one of us began work in coroners’ courts in the 1980s it was perfectly commonplace for an inquest to be concluded in half a day; now, a two-week time estimate is routine and many inquests last much longer. In the 1990s it was a rarity for an inquest to be the subject of review in the High Court; today judicial reviews of coroners’ decisions are frequent. Twenty years ago it was almost unheard of for a judge to sit as a coroner; today it is unremarkable. The underlying causes for these changes are complex, but two statutory developments stand out. First, the passage of the Human Rights Act 1998 (HRA 1998), which in substance incorporated the European Convention on Human Rights (ECHR) into the law of England and Wales, Scotland and Northern Ireland. Second, the coming into effect of the Coroners and Justice Act 2009, which, as its preamble declares, amended ‘the law relating to coroners, to investigation of deaths and to certification and registration of deaths’. In 1994 in R v HM Coroner for North Humberside and Scunthorpe ex parte Jamieson the Court of Appeal was able to provide a comprehensive analysis of the historical and statutory background to a coroner’s inquest without a single reference to the ECHR; today it is difficult to make it through a single substantial inquest without close analysis of Convention jurisprudence. In Jamieson, Lord Bingham had held that the word ‘how’ in section 11(5) of the Coroners Act 1988 and rule 36 of the Coroners Rules 1984 meant ‘by what means’, and not ‘in what broad circumstances’. When, nine years later, in R (Middleton) v West Sussex Coroner, the House of Lords came to consider the effect of the Convention on what was required of an inquest to which it applied, Lord Bingham was able to reach precisely the opposite conclusion as to the meaning of that word. The effect was, at a stroke, dramatically to increase the potential scope of an inquest. For a time it was thought critical to the width and depth of a coronial investigation to determine whether the inquest that followed would be a ‘Jamieson’ inquest or a ‘Middleton’ inquest; whether, in other words, the Convention mandated the wider interpretation of the word ‘how’ accepted in Middleton as appropriate in Article 2 cases. But increasingly the approach required in Article 2 cases was adopted as preferable in a much wider category of cases, cases where Article 2 was plainly not in play. So, for example, in R (Lin) v Secretary of State for Transport,1 Moses LJ remarked: 31. But it was of particular interest to learn, I appreciate not in evidential form, from the Bar what happens when no enhanced investigation takes place. Even absent an obligation on the state to

1

R (Lin) v Secretary of State for Transport [2006] EWHC 2575 (Admin), [2006] Inquest LR 161.

2 Introduction initiate an investigation, the inquest must be full and fair, practical and effective. It must be public and the bereaved must have the opportunity of fully taking part… 32. … Coroners nowadays are more concerned to conduct full inquiries with ample opportunity for participation, even absent the obligation to conduct enhanced inquests. Many, I was told, seek to conduct a full and fair inquiry and do not believe in offering the bereaved what may be perceived as a second-class inquest. Thus, following Takoushis, there will often be little difference in practice between an enhanced Middleton-type inquest and other inquests following deaths which give rise to concern both to those immediately involved and to their families.

Lin was followed by Hallett LJ sitting as coroner in what was perhaps the highest profile inquest of the decade; the inquests into the London bombings of 7 July 2005 (the ‘7/7 Inquests’).2 R (Takoushis) v HM Coroner for Inner North London,3 Lin and 7/7 have been followed by numerous other coroners since. The result has been an exponential growth in the length, factual complexity and legal difficulty of inquests. Although not primarily prompted by the HRA 1998, which the ever-flexible common law had substantially accommodated, by 2009 there was a widely recognised need for reform of coronial law. The Coroners Act of 1988 had been a consolidating measure, bringing together legislative provisions from the beginning of the twentieth century onwards. The need for modernisation of the law was becoming increasingly apparent. That need was made urgent by the report of the Shipman Inquiry, conducted by Dame Janet Smith, which was published in 2003. Shipman had exposed significant weaknesses in both coronial law and practice and the system for death certification. In response, the Government published a draft Coroners Bill in June 2006 and the Constitutional Affairs Select Committee reported in August 2006. The result was Part 1 of the Coroners and Justice Act 2009, the relevant provisions of which came into force on 25 July 2013. The Act makes fundamental changes to the coronial system: it replaces the previous framework for the investigation of deaths; it establishes the office of Chief Coroner; it provides for a senior coroner for each coroner area (previously known as coroner districts); it permits the appointment of area coroners and assistant coroners to assist the senior coroner (in place of the existing deputy coroners and assistant deputy coroners); it imposes a duty on senior coroners to conduct an ‘investigation’ into a death and recognises that there may be a need to make preliminary inquiries to establish whether the death comes within a senior coroner’s jurisdiction. As originally framed the Act would also have provided for an appeal to the Chief Coroner from decisions of senior coroners, but that provision was repealed before it was even brought into force. The Act also introduces a new scheme of Coroners Regulations dealing with coroners’ investigations and Coroners Rules governing coroners’ inquests. It is against the background of these changes that this book was conceived. What seemed to us was needed was a single volume providing extracts from all the authorities relevant to any type of inquest. At the heart of this book are comprehensive and detailed quotations from all the most important authorities on the law of inquests.

2 Coroners Inquests into the London Bombings of 7 July 2005 www.gov.uk/government/uploads/system/uploads/ attachment_data/file/97988/inquest-7-7-progress-report.pdf. 3 R (Takoushis) v HM Coroner for Inner North London [2005] EWCA Civ 1440, [2006] 1 WLR 461, Inquest LR 185.

Introduction 3

This is a practitioner’s casebook. It is designed for use by barristers and solicitors who practise, regularly or occasionally, in coroners’ courts. It seeks to address the changes wrought to the structures and jurisprudence of those courts in a manner that is straightforward and easy to use. It is divided up by reference either to the elements of an inquest or to the subject matter of a coroner’s investigation. Each chapter begins with an overview of the issues addressed, which is followed by references to the relevant statutory material and guidance. Each chapter then ends with quotations from the principal cases in which the relevant issues are discussed.4 The main part of the book is divided into three parts. The chapters in Part One deal with generic issues that are common to all inquests, while those in Part Two pertain to specific categories of inquests. Part Three deals with matters arising after the inquest. In addition, there are appendices of relevant legislation and of the Chief Coroner’s Guidance at the end of the book.5 The aim is to provide the reader with all the material needed to prepare and conduct a case from beginning to conclusion. We hope you find it of value. Sir Neil Garnham Caroline Cross January 2016

4

Footnotes within the case citations have not been included. all the Guidance or Law Sheets are included, and the Chief Coroner continuously releases further documentation, so it is best to check the relevant website for current information: www.judiciary.gov.uk/ related-offices-and-bodies/office-chief-coroner/guidance-law-sheets/coroners-guidance/. 5 Not

4

Part One

Inquests—General Principles

6

2 Sources of Coronial Law and Guidance RICHARD MUMFORD

I. Overview The long-awaited coming into force of the Coroners and Justice Act 2009 (CJA 2009) represented a wide-ranging reform of a coronial system which had been found in need of ‘radical change if [it was] to become fit for the purposes of a modern society and capable of meeting future challenges’.1 This chapter will set out the main sources of coronial law and guidance, placing them in their historical context; it will also set out the main aims and objectives of the reforms brought about by the 2009 Act, as well as where the developing guidance and jurisprudence can be found in relation to the modern coronial system.

II. Background to the Coroners and Justice Act 2009 A. Previous Legislation in Coronial Law In matters related to inquests into deaths,2 coroners were, immediately before the coming into force of the Coroners and Justice Act on 25 July 2013, governed by the Coroners Act 1988 and the Coroners Rules 1984. The 1988 Act was by no means a ‘modern’ statute but rather a consolidating Act, with amendments to give effect to recommendations of the Law Commission. The main predecessor to the 1988 Act was that of 1887, which itself was a consolidation of a number of ancient statutes mainly passed in the reigns of Edward I, Edward III and Henry VIII. The 1887 Act put into one statute the main legislation affecting coroners and implemented some of the recommendations of parliamentary select committees of 1860 and 1879. Running in parallel with the statutory basis of the coronial jurisdiction was (and is) the large body of case law made as a result of judicial reviews in the Administrative Court

1

Death Certification and Investigation in England, Wales and Northern Ireland, 2003 (‘the Luce Report’). also have jurisdiction to conduct inquests into matters related to treasure, to which the Treasure Act 1996 applies. 2 Coroners

8 Richard Mumford

of decisions of coroners to which objection is taken. Some of the judgments on judicial review can be said to have radically re-interpreted the scope and function of the coroner’s jurisdiction, for example, R (Middleton) v West Somerset Coroner3 on the proper meaning to be given to the words ‘how … the deceased came by his death’ in rule 36 of the Coroners Rules 1984, which called for a ‘change of approach’ in the framing of verdicts in certain classes of case.

B. Problems and Calls for Reform A host of difficulties have over the years been identified with the operation of the coronial system in England and Wales, prompting a number of reviews and proposals for reform. Such difficulties included inconsistency of skills and approach as well as the challenges to coronial resources posed by mass fatalities or other lengthy or demanding inquests. These and other issues led to repeated calls for reform, including: —— The committee chaired by Sir Mackenzie Chalmers that reported in 1910 (the first public examination of issues relating to the coronial system since the passing of the Coroners Act 1887)4 —— Report of Wright LJ in 19365 —— Report of Judge Norman Brodrick in 19716 Disappointingly, none of these three reports was acted upon in any substantial way (save for certain adjustments such as the abolition of the requirement for coroners or juries to view bodies and, in 1977, the removal of the ability of coroners or juries to indict for murder or manslaughter). More recent pressure for reform arose from various medically-related scandals, most notably the organ retention issues highlighted at Alder Hey and Bristol and the report of Dame Janet Smith regarding issues arising from the conviction of Dr Harold Shipman for the murder of 15 of his patients.7 The Shipman Inquiry in fact ran in parallel with another more specifically coronerfocussed inquiry, that of Tom Luce, appointed in July 2001 to report on death certification and the coroner service.8 The Luce Report was a comprehensive analysis of the then current system which involved evidence gathering and consultation with over 200 coroners, families, lawyers and organisations. The final report concluded that the coronial system

3

R (Middleton) v West Somerset Coroner [2004] UKHL 10, para 20. Committee, Second Report of the Departmental Committee appointed to inquire into the Law Relating to Coroners and Coroners’ Inquests, and into the Practice in Coroners’ Courts. Cmnd 5004 [1910]. 5 Report of the Departmental Committee on Coroners, Cmnd 5070 [1936]. 6 Report of the Committee on Death Certification and Coroners, Cmnd 4810 [1971]. 7 www.webarchive.nationalarchives.gov.uk/20090808154959/http:/www.the-shipman-inquiry.org.uk/reports. asp. 8 The Luce Report (n 1). Subsequent high-profile reviews have concurred with the conclusions expressed in the Luce Report—see Joint Committee on Human Rights Deaths in Custody: Third Report of Session 2004–05; Select Committee on Constitutional Affairs Reform of the Coroners’ System and Death Certification: Eighth Report of Session 2005–06; final report of the Redfern Inquiry into the analysis of human tissue taken from individuals who had worked in the nuclear industry, 16 November 2010. 4 Coroners’

Sources of Coronial Law and Guidance 9

had been seriously neglected over many decades and that it ‘must undergo radical change if [it is] to become fit for the purposes of a modern society and capable of meeting future challenges.’ Key among the Luce recommendations was the creation of the post of Chief Coroner for England and Wales (of which more below).

III. The Coroners and Justice Act 2009 A. Announcement of Bill, Royal Assent and Coming into Force The Queen’s Speech on 3 December 2008 heralded the introduction of a Coroners and Justice Bill, the aim of which was to ‘ensure that victims are at the heart of the criminal justice system. It will significantly improve the service bereaved families receive from a reformed coroner system, and introduce a more consistent and transparent sentencing framework.’ The final Act, which received Royal Assent on 12 November 2009, is a substantial piece of legislation (running to 183 sections, 23 Schedules and nearly 500 pages).9 It deals, as the name suggests, not exclusively with coroners but also with matters as diverse as the abolition of the offence of seditious libel and the criminalisation of forced or compulsory labour. Those parts of the 2009 Act relating to the coronial jurisdiction came into force on 25 July 2013 by virtue of the Coroners and Justice Act 2009 (Commencement No. 15, Consequential and Transitory Provisions) Order 2013/1869. A detailed comparison of the provisions of the 2009 Act with those under the 1988 Act can be found as an appendix to The Chief Coroner’s Guide to the Coroners and Justice Act 2009.10

B. The Chief Coroner The keystone of the reforms in relation to the coronial system is the post of Chief Coroner (as recommended in the Luce Report). The main responsibilities of that post are to: —— provide support, leadership and guidance for coroners in England and Wales; —— set national standards for all coroners, including new inquest rules; —— oversee the implementation of the new provisions of the Coroners and Justice Act 2009; —— put in place suitable training arrangements for coroners and their staff; —— approve coroner appointments; —— keep a register of coroner investigations lasting more than 12 months and take steps to reduce unnecessary delays;

9

Including the extensive explanatory notes. at www.judiciary.gov.uk/related-offices-and-bodies/office-chief-coroner/guidance-law-sheets/ coroners-guidance/. 10 Available

10 Richard Mumford

—— monitor investigations into the deaths of service personnel; —— oversee transfers of cases between coroners and direct coroners to conduct investigations; —— provide an annual report on the coroner system to the Lord Chancellor, to be laid before Parliament; and —— monitor the system where recommendations from inquests are reported to the appropriate authorities in order to prevent further deaths. Section 40 of the 2009 Act provided for a power of the Chief Coroner to hear appeals made against coroners’ decisions, including on issues such as whether to investigate a death or not or any finding as to cause of death. However, this section of the Act was repealed11 before it ever came into force.

C. Summoning a Jury Section 8 of the 1988 Act made provision for the circumstances in which a coroner either must or may summon a jury. A particular difficulty arose over the years regarding the interpretation of section 8(3)(d) which provided: (3) If it appears to a coroner, either before he proceeds to hold an inquest or in the course of an inquest begun without a jury, that there is reason to suspect— … (d) that the death occurred in circumstances the continuance or possible recurrence of which is prejudicial to the health or safety of the public or any section of the public, he shall proceed to summon a jury in the manner required by subsection (2) above [emphasis added].

The italicised phrase is of such potential width that it risked requiring a coroner to summon a jury in almost all cases. Attempts were made to limit its scope by putting the onus on the discretion of the individual coroner, by virtue of the words ‘If it appears to a coroner’12 or interpreting the italicised phrase as referring to ‘circumstances of such kind that their continuance or recurrence may reasonably and ought properly to be avoided by the taking of appropriate steps which it is in the power of some responsible body to take’,13 but this merely gave rise to the conundrum of how to determine whether this was satisfied at a stage when no evidence had yet been heard. Section 7 of the 2009 Act did not re-enact section 8(3)(d) of the 1988 Act. It did, however, retain the very wide discretion to summon a jury if the coroner ‘thinks that there is sufficient reason for doing so.’

11

By the Public Bodies Act 2011 c. 24 Pt 2, s 33(1). See, eg, Lord Denning MR in R v HM Coroner ex parte Peach [1980] 1 QB 211 at 226F and Taylor LJ in R v Inner London Coroner ex parte Linnane [1989] 1 WLR 395 at 398C. 13 Per Bridge LJ in ex parte Peach (n 12). 12

Sources of Coronial Law and Guidance 11

D. Introduction of Medical Examiners Under section 19 of the 2009 Act (yet to be brought into force), medical examiners (MEs) are intended to be appointed14 to scrutinise all deaths (whether for burial or cremation) in a uniform manner. This is to involve the independent scrutiny of Medical Certificates of Cause of Death (MCCDs), usually issued by the attending medical practitioner. The introduction of this supervisory post is intended, in part, to avoid coroners being unnecessarily burdened with cases where an MCCD can and should be issued. In an effort to ensure the integrity of the ME system, it is intended that regulations made under section 19 of the 2009 Act will provide that MEs will not be allowed to confirm or establish the cause of death of any person to whom they are related or with whom they have had any fiduciary relationship, and that they will not be allowed to scrutinise MCCDs prepared by any doctor with whom they have a close working or professional relationship or with whom they have an established fiduciary relationship.15

E. Dealing with Sensitive Material One of the most controversial of the reforms to be introduced by the 2009 Act relates to the question of how to deal with cases in which evidence relevant to the coroner’s inquest is asserted to be ‘sensitive’, that is, the disclosure of which would be harmful to national security/ the public interest.16 The scheme originally proposed in the Coroners and Justice Bill was to permit some inquests to be held partly in secret. Following considerable campaigning pressure, that proposal was dropped from the Bill, only to be replaced by what some regard as an even less satisfactory solution—that such inquests would be suspended pending an inquiry under the Inquiries Act 2005, section 19 of which enables restrictions to be imposed on attendance at an inquiry, or at any particular part of an inquiry and disclosure or publication of any evidence or documents given, produced or provided to an inquiry.

IV. Coroners (Investigations) Regulations 2013 The 2013 Regulations,17 made under section 43 of the 2009 Act, are, as the Explanatory Note sets out, intended to ‘regulate the practice and procedure relating to investigations

14 Section 19 provides that the bodies responsible for such appointments are to be primary care trusts (in England) and local health boards (in Wales). The Health and Social Care Act 2012 abolished primary care trusts, transferring the bulk of their functions to newly-created care commissioning groups. 15 See para 156 of the Explanatory Notes to the 2009 Act. 16 The very difficult problems raised by such a situation received considerable attention during the 7/7 inquests, conducted by Dame Heather Hallett (a judge of the Court of Appeal). See R (SSHD) v Assistant Deputy Coroner for Inner West London [2010] EWHC 3098 (Admin), 1 December 2010. See also R (on the application of Litvinenko) v Secretary of State for the Home Department [2014] EWHC 194 (Admin), 11 February 2014. 17 Coroners (Investigations) Regulations 2013, SI 2013/1629.

12 Richard Mumford

into deaths’ carried out under Part 1 of the 2009 Act. Provision is made under the Regulations for matters such as the keeping of a register of reported deaths, providing information to the next of kin or personal representative of the deceased and to other bodies such as the registrar of births and deaths, the appropriate Local Safeguarding Children Board and the Chief Coroner. Regulations also provide for the timing and arrangements in relation to post-mortem examination and the transfer of investigations as well as the release of bodies for burial or cremation and the exhumation of bodies. Provision is also made at regulation 26 requiring a coroner to notify the Chief Coroner of any investigation which has not been completed or discontinued within a year of that death being reported and to explain why this is the case (tying in with section 16 of the 2009 Act). Of particular importance is Part 7 of the Regulations concerned with ‘Action to prevent other deaths’. Part 7 ties in with paragraph 7 of Schedule 5 to the 2009 Act which imposes a duty on the coroner to make a report in respect of circumstances creating a risk of other deaths and action that may be taken to eliminate such circumstances or risk (Report to Prevent Future Deaths, or ‘PFD report’—see Chapter 25). Part 7 of the Regulations makes provision in respect of persons to whom such reports must or may be sent, as well as in respect of the publication of responses received.

V. Coroners (Inquests) Rules 2013 The 2013 Rules18 (which came into force on 25 July 2013) replace the Coroners Rules 1984 and in effect provide a procedural code for the conduct of inquests and pre-inquest reviews (PIRs). One of the noticeable innovations of the 2013 Rules is in fact the provision of a statutory basis for the PIR which hitherto had been conducted informally by coroners who recognised the need for some form of case management, particularly in relation to more complex or document-heavy inquests. The 2013 Rules make provision in respect of formalities, disclosure of documents, management of the inquest hearing (including rules as to the admissibility of evidence), the summoning of juries and the making of a record of the findings of the inquest.

VI. Chief Coroner’s Guidance and Law Sheets A. Guidance The Chief Coroner has been active in the production of guidance19 on topics ranging from the use of post-mortem imaging to the framing of conclusions in either short or

18

Coroners (Inquests) Rules 2013, SI 2013/1616. at www.judiciary.gov.uk/related-offices-and-bodies/office-chief-coroner/guidance-law-sheets/ coroners-guidance/. 19 Published

Sources of Coronial Law and Guidance 13

arrative form. Such guidance is non-statutory, though it is interesting to note that the n Lord Chancellor has power under section 42 of the 2009 Act to issue guidance ‘about the way in which the coroner system is expected to operate in relation to interested persons’ and that in exercising such power he must consult with the Chief Coroner. Furthermore, pursuant to section 36(7) of the 2009 Act, ‘[i]f requested to do so by the Lord Chancellor, the Chief Coroner must give advice to the Lord Chancellor about particular matters relating to the operation of the coroner system’. The intended recipients of the guidance are for the most part coroners themselves, though the guidance documents are a useful, publically available resource for practitioners in the field and interested persons generally.

B. Law Sheets The Chief Coroner has also produced a number of Law Sheets,20 similar in style to the guidance referred to above, the distinguishing feature being that they relate to discrete issues of law rather than issues of practice or policy. Again, the Law Sheets are not issued under a specific statutory authority. However, it is hoped that they would represent an authoritative treatment of the topics with which they deal, in particular as the Chief Coroner would be likely to form part of any Divisional Court dealing with a judicial review of important decisions relating to the coronial jurisdiction.

VII. Legal Resources The law in this area will continue to be interpreted and to some extent shaped by judges deciding applications for judicial review of coroners’ decisions or for fresh inquests (pursuant to section 13(1) of the Coroners Act 1988 (as amended), which still governs such applications). Indeed, the growth in the number of cases concerning the coronial jurisdiction since the coming into force of the Human Rights Act 1998 appears to be continuing unabated. The ‘bedding in’ of the 2009 Act and accompanying rules and regulations is likely to add to that volume, at least to begin with. The main sources for researching relevant case law are as follows: —— British and Irish Legal Information Institute (BAILII).21 This is a freely available website which publishes British and Irish case law and legislation, European Union case law, Law Commission reports and other law-related British and Irish material. Coverage of the decisions of the High Court and above starts from around August 1999. According to its website, there is a restriction on the number of English cases from Divisions of the High Court which can be added to the BAILII database which arises

20 Published at www.judiciary.gov.uk/related-offices-and-bodies/office-chief-coroner/guidance-law-sheets/ law-sheets/. 21 www.bailii.org/.

14 Richard Mumford

from the fact that the shorthand writers who transcribe judgments which have been given verbally (as opposed to judgments handed down on paper) may own the copyright in the transcribed version of the judgment. Copies of judgments in published law reports may also be subject to copyright. Handed down first-instance decisions of the England and Wales and Northern Ireland High Courts are generally only provided to BAILII where the judge giving the judgment indicates that they are of sufficient interest to be made available for publication on the Internet. Copies of unreported English judgments which are not available on BAILII can be requested from the Courts Transcription & Recording Unit.22 —— Subscription databases, in particular Lawtel,23 Westlaw,24 Casetrack,25 LexisNexis.26 The coverage offered by such services is potentially more comprehensive than free sources and may have the additional advantage of offering access to the authoritative report of a case (containing a headnote and keyword summary). —— Inquest Law Reports.27 This subscription service aims, as the name suggests, to collect cases relating to inquest law in one series as well as make available judgments which might otherwise be unreported. The reports provide the full text of judgments from the High Court, Court of Appeal, House of Lords and relevant judgments from the European Court of Human Rights on Article 2. Each case has a headnote prepared by a team of barristers and solicitors who specialise in inquest law. The Inquest Law Reports began in 2000, but relevant cases before that year are also covered. —— Legal textbooks. The following books are useful sources of information, —— Paul Matthews, Jervis on Coroners (13th edn, Sweet & Maxwell 2014). An authoritative work covering all aspects of the coronial process. —— Christopher Dorries OBE, Coroners’ Courts: A Guide to Law and Practice (3rd edn, OUP 2014). Includes dedicated chapters on mass fatality incidents and treasure. Written by a full-time coroner with more than 20 years’ experience. —— Leslie Thomas QC et al., Inquests: A Practitioner’s Guide (3rd edn, Legal Action Group 2014). A useful resource particularly when representing bereaved families. —— John Cooper QC, Inquests (1st edn, Hart Publishing 2011). Part of the Criminal Law Library series, this sets out both the substantive law and new procedure following the recent legislation and authorities, including a chapter on military inquests (a particular specialism of the author).

22

RCJ Room WB14; tel: 020 7947 7820; fax: 020 7947 6662; email: [email protected].

23 www.lawtel.com.

24 www.legalresearch.westlaw.co.uk. 25 www.casetrack.com/index.html. 26 www.lexisnexis.co.uk.

27 www.southsidepublishing.co.uk/inquest/inquest.html.

3 Duty to Hold an Inquest RACHEL MARCUS

I. Overview A. The Investigation Process The decision as to whether or not an inquest should be held is one taken by the coroner, applying the relevant legislation. The duty is now contained in section 1 of the Coroners and Justice Act 2009 (CJA 2009). This brought about significant changes in the way in which the decision-making takes place, and in essence renames and makes more transparent the process by which the coroner comes to that decision: it all becomes part of the coroner’s ‘investigation’, a process which does not necessarily lead to the holding of an inquest proper. The coroner’s conduct of the investigation is governed by the Coroners (Investigation) Regulations 2013.1 The 2009 Act removes the obligation to investigate ‘sudden’ deaths and requires a coroner to investigate only where he or she has ‘reason to suspect that the death was a violent or unnatural one; the cause of death is unknown; or the deceased died whilst in custody or otherwise detained by the state’.2 The definition of ‘unnatural’ and what it means to have ‘reason to suspect’ (or, in the phrasing in the Coroners Act 1988, ‘reasonable cause to suspect’) is addressed in case law, some of which is set out below. The definition of ‘state detention’ is dealt with further in Chapter 7.3 Where the ordinary duty does not apply because the body is absent, destroyed or lost, but it is known that a death has occurred ‘in or near’ the coroner’s area, and the ‘circumstances of the death are such’ that there should be an investigation, the coroner may (not must) report the matter to the Chief Coroner, who may direct a coroner to conduct an investigation into the death. In all cases where the duty to conduct an investigation arises, this is required to be ‘as soon as practicable’.

1

Coroners (Investigation) Regulations 2013, SI 2013/1629 made under s 43 of the 2009 Act. CJA 2009, s 1(1). 3 See also the Chief Coroner’s Guidance on the Deprivation of Liberty Safeguards, which is addressed in hapter 18. C 2

16 Rachel Marcus

An investigation into a death must include an inquest4 unless a post-mortem reveals the cause of death and the coroner thinks it is unnecessary to hold one. The investigation is then ‘discontinued’.5 This is only the case where the cause of death is now known, and not in ‘violent or unnatural’ or ‘state detention’ cases. The coroner must notify the interested parties of the reasons why the investigation has been discontinued if requested to do so.

B. Suspension and Resumption of Inquest Under Schedule 1 of the CJA 20096 there are three situations in which the coroner is obliged or entitled to suspend the investigation: 1. Where there are possible7 or actual8 criminal proceedings; 2. Where there is to be a public inquiry under the Inquiries Act 2005,9 unless there is an exceptional reason;10 or 3. In any case where it appears appropriate.11 The coroner must suspend her investigation where she is informed by a prosecuting authority that criminal charges may be12 or have been13 brought in relation to the death (for more details on what this means, see the legislation) excerpted below. The coroner must adjourn any inquest pending the lifting of that suspension and, if a jury is already sitting, discharge that jury. Where proceedings have already been brought, the coroner need not suspend the investigation if the prosecuting authority has no objection to it continuing; or, indeed, if the coroner considers that there is an ‘exceptional reason’ for the investigation continuing.14 In other words, where the prosecuting authority has yet to decide whether to bring charges, the coroner must suspend her investigation; where charges have already been brought the coroner may continue it if there is an exceptional reason for doing so. The coroner must also suspend the investigation where requested to do so by the Lord Chancellor when there is to be a public inquiry and a senior judge has already been appointed to lead that inquiry.15 The coroner may also suspend an investigation in any case ‘if it appears to the coroner that it would be appropriate to do so’.16 This is an extraordinarily wide discretion.

4

CJA 2009, s 6. CJA 2009, s 4. 6 By virtue of s 11. 7 CJA 2009, Sch 1, para 1. 8 CJA 2009, Sch 1, para 2. 9 CJA 2009, Sch 1, para 4. 10 CJA 2009, Sch 1, para 3(2). 11 CJA 2009, Sch 1, para 5. 12 CJA 2009, Sch 1, para 1. 13 CJA 2009, Sch 1, para 2. 14 CJA 2009, Sch 1, para 2(6). 15 CJA 2009, Sch 1, para 3. 16 CJA 2009, Sch 1, para 5. 5

Duty to Hold an Inquest 17

As for the resumption of an inquest once it has been suspended: 1. In the case of possible criminal proceedings, this must be at the end of 28 days or whatever longer period has been set at the outset by the coroner: in other words, the inquest must not be held up by delay on the part of the prosecution.17 2. In case of existing criminal proceedings or inquiries, or if the inquest was suspended on the coroner’s own initiative, the inquest may be resumed if the senior coroner thinks there is sufficient reason to do so.18 The coroner must notify the next of kin or any interested parties of the resumption of any inquest and the reason for its resumption.19

C. Re-opening of an Inquest The circumstances under which the coroner should re-open an inquest are covered in Chapter 26.

II. Legislation and Other Sources Coroners and Justice Act 2009 1. Duty to investigate certain deaths (1) A senior coroner who is made aware that the body of a deceased person is within that coroner’s area must as soon as practicable conduct an investigation into the person’s death if subsection (2) applies. (2) This subsection applies if the coroner has reason to suspect that— (a) the deceased died a violent or unnatural death, (b) the cause of death is unknown, or (c) the deceased died while in custody or otherwise in state detention. (3) Subsection (1) is subject to sections 2 to 4. (4) A senior coroner who has reason to believe that— (a) a death has occurred in or near the coroner’s area, (b) the circumstances of the death are such that there should be an investigation into it, and (c) the duty to conduct an investigation into the death under subsection (1) does not arise because of the destruction, loss or absence of the body, may report the matter to the Chief Coroner.

17 18 19

CJA 2009, Sch 1, para 7. CJA 2009, Sch 1, para 8. Coroners (Investigations) Regulations 2013.

18 Rachel Marcus (5) On receiving a report under subsection (4) the Chief Coroner may direct a senior coroner (who does not have to be the one who made the report) to conduct an investigation into the death. (6) The coroner to whom a direction is given under subsection (5) must conduct an investigation into the death as soon as practicable. This is subject to section 3. (7) A senior coroner may make whatever enquiries seem necessary in order to decide— (a) whether the duty under subsection (1) arises; (b) whether the power under subsection (4) arises. (8) This Chapter is subject to Schedule 10. … 4. Discontinuance where cause of death revealed by post-mortem examination (1) A senior coroner who is responsible for conducting an investigation under this Part into a person’s death must discontinue the investigation if— (a) an examination under section 14 reveals the cause of death before the coroner has begun holding an inquest into the death, and (b) the coroner thinks that it is not necessary to continue the investigation. (2) Subsection (1) does not apply if the coroner has reason to suspect that the deceased— (a) died a violent or unnatural death, or (b) died while in custody or otherwise in state detention. (3) Where a senior coroner discontinues an investigation into a death under this section— (a) the coroner may not hold an inquest into the death; (b) no determination or finding under section 10(1) may be made in respect of the death. This subsection does not prevent a fresh investigation under this Part from being conducted into the death. (4) A senior coroner who discontinues an investigation into a death under this section must, if requested to do so in writing by an interested person, give to that person as soon as practicable a written explanation as to why the investigation was discontinued. … 6. Duty to hold inquest A senior coroner who conducts an investigation under this Part into a person’s death must (as part of the investigation) hold an inquest into the death. This is subject to section 4(3)(a). 11. Duty or power to suspend or resume investigations Schedule 1 makes provision about suspension and resumption of investigations.

Suspension of inquests: CJA 2009, Schedule 1 Suspension where certain criminal charges may be brought 1. (1) A senior coroner must suspend an investigation under this Part of this Act into a person’s death in the following cases.

Duty to Hold an Inquest 19 (2) The first case is where a prosecuting authority requests the coroner to suspend the investigation on the ground that a person may be charged with— (a) a homicide offence involving the death of the deceased, or (b) an offence (other than a service offence) that is alleged to be a related offence. (3) The second case is where a Provost Marshal or the Director of Service Prosecutions requests the coroner to suspend the investigation on the ground that a person may be charged with— (a) the service equivalent of a homicide offence involving the death of the deceased, or (b) a service offence that is alleged to be a related offence. (4) Subject to paragraphs 2 and 3, a suspension of an investigation under this paragraph must be for— (a) a period of 28 days beginning with the day on which the suspension first takes effect, or (b) whatever longer period (beginning with that day) the coroner specifies. (5) The period referred to in sub-paragraph (4) may be extended or further extended— (a) in the first case, at the request of the authority by which the suspension was originally requested; (b) in the second case, at the request of— (i) the Provost Marshal by whom the suspension was originally requested, or (ii) the Director of Service Prosecutions. (6) [See Schedule 1 for definitions of terms]. Suspension where certain criminal proceedings are brought 2. (1) Subject to sub-paragraph (6), a senior coroner must suspend an investigation under this Part of this Act into a person’s death in the following cases. (2) The first case is where the coroner— (a) becomes aware that a person has appeared or been brought before a magistrates’ court charged with a homicide offence involving the death of the deceased, or (b) becomes aware that a person has been charged on an indictment with such an offence without having appeared or been brought before a magistrates’ court charged with it. (3) The second case is where the coroner becomes aware that a person has been charged with the service equivalent of a homicide offence involving the death of the deceased. (4) The third case is where a prosecuting authority informs the coroner that a person— (a) has appeared or been brought before a magistrates’ court charged with an offence (other than a service offence) that is alleged to be a related offence, or (b) has been charged on an indictment with such an offence without having been sent for trial for it, and the prosecuting authority requests the coroner to suspend the investigation. (5) The fourth case is where the Director of Service Prosecutions informs the coroner that a person has been charged with a service offence that is alleged to be a related offence, and the Director requests the coroner to suspend the investigation. (6) The coroner need not suspend the investigation— (a) in the first case, if a prosecuting authority informs the coroner that it has no objection to the investigation continuing;

20 Rachel Marcus (b) in the second case, if the Director of Service Prosecutions informs the coroner that he or she has no objection to the investigation continuing; (c) in any case, if the coroner thinks that there is an exceptional reason for not suspending the investigation. (7) In the case of an investigation that is already suspended under paragraph 1— (a) a suspension imposed by virtue of sub-paragraph (2) of that paragraph comes to an end if, in reliance of sub-paragraph (6)(a) above, the coroner decides not to suspend the investigation; (b) a suspension imposed by virtue of sub-paragraph (3) of that paragraph comes to an end if, in reliance on sub-paragraph (6)(b) above, the coroner decides not to suspend the investigation; (c) a reference above in this paragraph to suspending an investigation is to be read as a reference to continuing the suspension of an investigation; (d) if the suspension of the investigation is continued under this paragraph, the investigation is to be treated for the purposes of paragraphs 1(4), 7 and 8 of this Schedule as suspended under this paragraph (and not as suspended under paragraph 1). Suspension pending inquiry under Inquiries Act 2005 (1) Subject to sub-paragraph (2), a senior coroner must suspend an investigation under this Part of this Act into a person’s death if— (a) the Lord Chancellor requests the coroner to do so on the ground that the cause of death is likely to be adequately investigated by an inquiry under the Inquiries Act 2005 (c. 12) that is being or is to be held, (b) a senior judge has been appointed under that Act as chairman of the inquiry, and (c) the Lord Chief Justice has indicated approval to the Lord Chancellor, for the purposes of this paragraph, of the appointment of that judge. In paragraph (b) ‘senior judge’ means a judge of the High Court or the Court of Appeal or a Justice of the Supreme Court. (2) The coroner need not suspend the investigation if there appears to be an exceptional reason for not doing so. (3) In the case of an investigation that is already suspended under paragraph 1— (a) a reference above in this paragraph to suspending the investigation is to be read as a reference to continuing the suspension of the investigation; (b) if the suspension of the investigation is continued under this paragraph, the investigation is to be treated for the purposes of paragraphs 1(4), 7 and 9 of this Schedule as suspended under this paragraph (and not as suspended under paragraph 1). (4) (1) This paragraph applies where an investigation is suspended under paragraph 3 on the basis that the cause of death is likely to be adequately investigated by an inquiry under the Inquiries Act 2005 (c. 12). (2) The terms of reference of the inquiry must be such that it has as its purpose, or among its purposes, the purpose set out in section 5(1) above (read with section 5(2) where applicable); and section 5 of the Inquiries Act 2005 has effect accordingly.

Duty to Hold an Inquest 21 General power to suspend 5. A senior coroner may suspend an investigation under this Part of this Act into a person’s death in any case if it appears to the coroner that it would be appropriate to do so. Resumption of inquest: Resumption of investigation suspended under paragraph 1 7. An investigation that is suspended under paragraph 1 must be resumed once the period under sub-paragraph (4) of that paragraph, or as the case may be the extended period under subparagraph (5) of that paragraph, has ended. Resumption of investigation suspended under paragraph 2 8. (1) An investigation that is suspended under paragraph 2 may not be resumed unless, but must be resumed if, the senior coroner thinks that there is sufficient reason for resuming it. … (5) In the case of an investigation resumed under this paragraph, a determination under section 10(1)(a) may not be inconsistent with the outcome of: (a) the proceedings in respect of the charge (or each charge) by reason of which the investigation was suspended; (b) any proceedings that, by reason of sub-paragraph (2), had to be concluded before the investigation could be resumed.\

For the full detail of the legislation covering resumption of inquests during or following criminal investigations and proceedings, or inquiries, see Schedule 1 of the CJA 2009.

Guidance Chief Coroner’s Guidance No 9, Opening Inquests 4. Under the 2009 Act regime there is a greater flexibility for coroners. In the three stage process—(1) preliminary inquiries, no investigation, (2) investigation, no inquest, or (3) investigation, plus inquest—coroners will be able more readily to come to a natural causes conclusion without the need for an inquest. There should therefore be a reduced number of inquests and a reduced number of openings. 5. Where a death is reported to the coroner, the coroner need not commence inquest proceedings in two situations.— (1) Where the coroner makes preliminary inquiries under section 1(7) of the 2009 Act, including (where necessary) a request for a post-mortem examination under section 14(1)(b), and concludes that he/she has no duty to investigate under section 1(1), there will be no inquest because there will be no investigation. There cannot be an inquest without an investigation: section 6. (2) Where the coroner decides to conduct an investigation into the death, the coroner may discontinue the investigation under the provisions of section 4 where applicable.

22 Rachel Marcus

Chief Coroner’s Guidance on the Deprivation of Liberty (‘DOL’) Safeguards This addresses, inter alia, whether a person subject to a DOL is in state detention for the purposes of the duty to hold an inquest. It makes clear (at paragraph 64) that the Guidance is subject to any decision by the High Court. Paragraph 47 states that: The Chief Coroner’s view is the view which was expressed in the Chief Coroners Guide to the Coroners and Justice Act 2009 Act at paragraph 54: ‘This [the definition of ‘state detention’ in section 48(2)], in effect, extends the definition of state detention to institutions such as immigration detention and secure mental health hospitals. It would also appear to extend to deprivation of liberty orders (Schedule A1, Mental Capacity Act 2005)’.

At paragraph 52 he also points out that this view appears to accord with the Explanatory Notes to section 1 of the 2009 Act. At paragraph 66 the Chief Coroner indicates that the person is not ‘in state detention’ for these purposes until the DOL is authorised. At paragraph 67 he indicates: Where the authorisation relates to a care home and the person is removed to a hospital and dies there (or in transit), coroners should err on the side of caution in deciding that the DoL may extend from the care home to the hospital in cases of medical necessity and therefore an investigation must be commenced. Even if the DoL is strictly place-specific (see paragraphs 25–26, Schedule A1 [of the Mental Capacity Act 2005]), the law of necessity may allow the hospital to ‘detain’ the person, therefore an inquest would be necessary.

III. Cases A. ‘Unnatural Death’ (i) R (Weeks) v South London Coroner [1996] EWHC Admin 329 Keywords: Coroners, evidence, medical care, neglect The deceased, Mrs Coppard was an insulin-dependent diabetic with heart problems who was a resident in an old people’s home. There was ‘confusion and uncertainty about the events that immediately preceded Mrs Coppard’s death and as to the time she died’. An investigation by the local authority into the family’s complaints after her death was described by the Court as ‘tell[ing] a lamentable tale of incompetence in the running of the home’. The coroner however considered that the death ‘appeared to be a natural one registered by a medical practitioner’, that Mrs Coppard’s daughter Mrs Weeks’ complaints were not matters for the coroner and that there was nothing which would seem to warrant an inquest: ‘if a death is not even reported to me as was the case here, and was a natural death, it cannot be the subject of a Coroner’s enquiry’. In a later letter he indicated that ‘unless it was suggested that the doctor who signed the death certificate was guilty of some malpractice he was bound to accept the cause of death because there was no possibility of holding a post mortem’. It was not the function of the coroner’s court to hold an enquiry into the medical ethics of

Duty to Hold an Inquest 23

the doctor who signed the certificate. On judicial review the Court agreed that the coroner must have some evidence before him on which to base his reasonable cause to suspect an unnatural death, albeit that the evidence need not be admissible evidence. Scott Baker LJ: Thus, in practical terms, when a Coroner is informed of a death within his jurisdiction, he must consider all the relevant material before him and ask whether he has reasonable cause to suspect that the deceased died a violent or unnatural death or a sudden death the cause of which is unknown. If he does have cause to suspect, he must hold an inquest. The test is one of objective fact. The matters that fall to be considered are not limited to admissible evidence. See Hussein v Chung Fook Kam [1970] AC 942, [1969] 3 All ER 1626 at 949 of the former report. In R v Poplar Coroner ex p Thomas [1993] QB 610, [1993] 2 All ER 381 the Court of Appeal considered the meaning of the word unnatural. They concluded that the word should be given its ordinary meaning and that the question of natural or unnatural depended on the cause of death and that this was essentially a practical question of fact. Simon Brown LJ explained that the circumstances surrounding the death may turn what might otherwise be a natural death into an unnatural one. He said at p 388 A: ‘I agree that unnatural is an ordinary word of the English language and that there is nothing to suggest that in S8(1) of the Coroners Act 1988 it is being used in any unusual sense. That, however, is not to say that whether or not a particular death is properly to be regarded as unnatural is a pure question of fact. On the contrary it seems to me that some guidance at least can and should be given as a matter of law by the Courts to Coroners so that they may focus their attention upon the real considerations material to the decision and, one hopes, thereby achieve an essential measure of consistency in their approach to the section.’ And at P 389 C: ‘Merely, however, because the Coroner’s inquest nowadays may be thought lacking any very clear or cogent role is no sufficient reason for adopting too narrow an approach to S.8. I repeat, it seems to me necessary to recognise that cases may well arise in which human fault can and properly should be found to turn what would otherwise be a natural death into an unnatural one, and into which, therefore, an inquest should be held.’ … [Counsel for the applicant] Mr Williams’ first and main complaint is that the Coroner regarded himself as bound by the death certificate. What has to be borne in mind is that the long passage of time made a post mortem no longer an option. In these circumstances it would be very difficult to go behind the cause of death on the death certificate. In my judgment, what the Coroner was really saying was he was bound, in the light of all the material that was before him, to accept what was in the doctor’s certificate. True he might have expressed himself better, but I cannot see that the decision making process was flawed. Dr Nam saw Mrs Coppard on 15 February, and if one examines the evidence of what happened between then and Mrs Coppard’s death in the early hours of the following morning, there is nothing to suggest that her death was either unnatural or that it was a sudden death of which the cause is unknown. The only evidence of the cause of death is in the death certificate. Deficiencies in the record keeping of the home, and discrepancies between the accounts of the various people who were in one way or another responsible for the care of Mrs Coppard would only provide the basis for a finding of ‘reasonable cause to suspect a death from unnatural causes’ if medical evidence could be placed before the Coroner showing how the attendants at the home

24 Rachel Marcus might have been guilty of gross neglect;20 and further that the gross neglect had a direct causal connection with the death. Similarly, the allegations regarding the doctor’s failure to see the body would only be relevant if evidence existed to show what might have been missed by the doctor. For example, if evidence existed that showed a gross failure on the part of the attendants at the home to administer medication or food, or evidence that the deceased died as a result of improper administration of medication. No such evidence exists. I accept [counsel for the defendant’s] contention that the Coroner’s statement in his letter of 26 November that he was ‘bound’ to accept the certificate issued by the doctor does not show he fettered his discretion but merely shows he did not have any information giving him sufficient to cause him to believe the doctor’s certificate should not be relied on. … [T]here was nothing, to turn what was on the face of it a natural death into an unnatural one. … [A]ll I think the Coroner was saying was that the passage of time had made impractical the kind of investigation that might have been made if the death had been reported to him soon after it occurred. There are a number of references to possible malpractice on the part of the doctor who signed the certificate. In truth there is no evidence, nothing to suggest any malpractice and Dr Nam had seen Mrs Coppard as recently as the day before she died. In my judgment there were no reasonable grounds for believing that Mrs Coppard’s death was due to unnatural causes or that she suffered a sudden death of which the cause was unknown. I am unable to conclude that the Coroner’s decision making process was flawed or that he should have held an inquest. Even were I to have reached a different conclusion I would have found it difficult to exercise my discretion to grant the relief sought. There was an exhaustive investigation into what happened in the home at the material time. Serious deficiencies were exposed. Later there was a hearing before a Panel chaired by an independent social worker. If an inquest were now to be held it would take place 3 years after the death. In the absence of a post mortem and in the light of the very extensive investigations that have already taken place it is doubtful if anything new would be learned. Accordingly this application fails.

(ii) R (Touche) v Inner North London Coroner [2001] QB 1206, [2001] Inquest LR 223 Keywords: Coroners, Article 2, unnatural death, medical care, neglect The deceased died of a cerebral haemorrhage as a result of severe hypertension after delivering twins by caesarean section. The coroner refused to hold an inquest as he contended that she died a natural death. Her husband contended that an inquest should have been held as there was a 2.5-hour period during which the deceased’s blood pressure had not been monitored when it should have been. The Court considered whether there was ‘reasonable cause to suspect’ that the deceased had died an ‘unnatural death’ for the purposes of the duty to hold an inquest, then contained within section 8 of the Coroners Act 1988. 20 NB This assumption was rejected in R (Touche) v Inner North London Coroner [2001] QB 1206: either (a) neglect or (b) culpable human failing can turn a natural death into an unnatural one.

Duty to Hold an Inquest 25

At paragraph 20 Simon Brown LJ recalled his minority view in R v Poplar Coroner ex parte Thomas,21 where he had said: I agree … that the question whether or not a death is natural or unnatural depends ultimately on the view one takes as to the cause of death. But I do not find the question of causation in this context susceptible of quite the same sort of robust approach that the House of Lords advocated in a very different context in cases such as McGhee v National Coal Board [1973] 1WLR1. The question arising there was: can the court properly infer, in the absence of a provable direct link, that one particular state of affairs caused or contributed to another. In those cases the possibility of there being more than one cause was immaterial. … The question posed in the present context is surely therefore different: given that all the important facts are known to the coroner, what view should he take of causes that may well be secondary but are not self-evidently irrelevant? As in litigation why should he not sometimes find a death to be the result of two causes, either one of which could serve to make it unnatural.

He continued in Touche: 21. A little later I indicated that I for my part would have regarded the death as an unnatural one ‘if the late arrival of the ambulance had constituted a more extreme failure of the service’, adding that ‘by failure I mean culpable human failure on the part of those responsible for providing a reasonably efficient emergency service’. I concluded: ‘… it seems to me necessary to recognise that cases may well arise in which human fault can and properly should be found to turn what would otherwise be a natural death into an unnatural one, and one into which therefore an inquest should be held.’ … 32. … Upon such material as is presently available to the coroner he could not properly decide otherwise than that there is reasonable cause to suspect that Mrs Touche’s death was (a) at least contributed to by ‘neglect’ (narrowly defined as by Jamieson) and thus (b) unnatural (as would necessarily follow from Thomas). … 38. I have not thus far addressed the wider point which lies at the heart of this appeal: were the Divisional Court right to hold as they did that, whenever a death takes place in hospital and a failure to provide ‘routine’ treatment is a cause (even a secondary cause) of death, the death is unnatural? … 46. Given our conclusion on the narrow point—that inquests should in any event be held into cases like this because of the possibility of a ‘neglect’ verdict, the resolution of the wider point is clearly of less significance than it would otherwise be… But undoubtedly there will be cases which fall outside the category of ‘neglect’ and yet appear to call for an inquest on the basis already indicated, namely cases involving a wholly unexpected death from natural causes which would not have occurred but for some culpable human failure…It is the combination of their unexpectedness and the culpable human failing that allowed them to happen which to my mind makes such deaths unnatural. Deaths by natural causes though undoubtedly they are, they should plainly never have happened and in that sense are unnatural.

At paragraph 61 Robert Walker LJ commented that ‘Often “unnatural” means little more than abnormal and unexpected, and that rather muted shade of meaning would appear to 21

R v Poplar Coroner ex parte Thomas [1993] QB 610.

26 Rachel Marcus

be consistent with the legislative purpose of the Coroners Act 1988’. He also reiterated his doubt whether the naturalness or unnaturalness of a death should be determined exclusively in terms of causation, especially if that is seen as requiring a search for a single ‘dominant cause of death’…The better way forward is to look for a combination of circumstances rather than a single dominant cause.

At paragraph 64 Keene LJ rejected the idea that it was ever incumbent on the coroner to find only a single cause of death; there was therefore no conflict with the Court’s prior judgment in Thomas. The conclusion from Touche is that an inquest must be held in two circumstances where the death might otherwise appear to be from natural causes: (1) where there is the possibility of a neglect verdict or (2) an unexpected death from natural causes would not have occurred but for some culpable human failure. It would appear from this that for this kind of death the duty to hold an inquest will arise if there is both the element of unexpectedness and a culpable human failing.

(iii) R (Bicknell) v Birmingham and Solihull Coroner [2007] EWHC 2547 (Admin), [2007] Inquest LR 244 Keywords: Coroners, evidence, medical care The deceased died in a care home. By the time concerns were raised by the family to the coroner the body had already been cremated. Therefore, technically the review was of the coroner’s decision under section 15 of the Coroners Act 1988 (now section 1(4), see above) permitting the coroner to report matters to the Secretary of State for Justice22 if he had reason to believe that the death was in such circumstances that an inquest ought to be held but the body had been destroyed. The coroner approached his decision on the same basis as the criteria under the then section 8 of the Coroners Act 1988—that is, whether there was ‘reasonable cause to suspect’ an unnatural death. The Court found that there was evidence to give the coroner such reasonable cause to suspect an unnatural death in the form of a critical report from an expert instructed by the family, and that given the cremation the matter should therefore have been referred to the Secretary of State. McCombe J: 27. In my view, if a failure to monitor blood pressure in the circumstances of the Touche case gave rise to a conclusion that an inquest ought to be held, then the present case is an even clearer one. Dr. Boyd raises the distinct possibility that Mr. Vines’ death from a ‘natural’ cause was caused or contributed to by the excessive doses of the anti-psychotic drug, coupled with the restrictive effect of the bucket chair and the possible failure to give adequate anti-biotic treatment once pneumonia set in. To my mind, those circumstances together with Mrs. Bicknell’s observations clearly gave rise to ‘reasonable cause to suspect’ that Mr. Vines had died an unnatural death within the meaning of Section 8 of the Act. I think there is force in the criticism made on Mrs. Bicknell’s behalf that

22

Now the Chief Coroner.

Duty to Hold an Inquest 27 aragraph 23 of the Coroner’s statement indicates an excessive focus by him on a perceived requirep ment to demonstrate a causative link between the death and the improper behaviour or treatment. Such an approach goes further than the requirement of ‘reasonable cause to suspect …’. 28. In my judgment, by the time of the intervention on Mrs. Bicknell’s behalf, the other factors of concern as to the care standards at the home ought also to have added impetus to a decision that an inquest ‘ought to be held’. The circumstances touching upon Mr. Vines’ death, including Dr. Boyd’s report and Mrs. Bicknell’s observations are telling enough, but when one adds to those the more general concerns raised by other investigations, it becomes a compelling conclusion that there is reasonable cause to suspect an unnatural death. Here was a suspicious death occurring in a care home where substantial doubts as to the standards of care had already emerged.

(iv) Canning v Northants Coroner [2005] EWHC 3125 (Admin), [2005] Inquest LR 181 Keywords: Coroners, evidence, medical care The deceased, Francis Canning, was a 14-year-old with cerebral palsy and associated severe disabilities. He was resident in a respite home when he died of an infarction of the small bowel caused by a volvulus. The coroner declined to hold an inquest, stating that there was ‘no element of culpable failing’ and that she was satisfied that Francis had died of natural causes:23 she decided on the basis of the witness statements with which she had been provided that ‘to prevent Francis’ death, there would have needed to have been a diagnosis of Francis’ condition and a realisation of the need for urgent surgery on the evening of 22 January 2004’; and, in essence, that symptoms were not present which would enable anyone to realise his condition until it was already too late; alternatively, that if symptoms such as pallor and coldness were present a general practitioner would not have diagnosed the condition or the need for urgent surgery.24 The claimant’s case was (as characterised by Carnwath LJ) that there were grounds to suspect that something had gone wrong, sufficient to put a properly instructed coroner on notice of the need at least for further investigations.25 Prior to the hearing before the Divisional Court, the family obtained an opinion from an expert who was critical of the care provided to Francis in the care home on the night of 22 January 2004, and stated that if he had been assessed by a doctor he would have been sent to hospital for observations and, if necessary, surgery could have been undertaken. This did not change the coroner’s view.26 Before the hearing in the Court of Appeal, the family obtained an opinion from the expert indicating that in the light of the unsettled aspect presented by Francis on the night of 22 January 2004 a thorough physical assessment should have been undertaken, having regard to his communication difficulties and his previous abdominal surgery.27 At paragraph 3 Carnwath LJ reiterated that: The words ‘reasonable cause to suspect’ imply a low threshold. They do not require a prima facie case; see Hussein v Choung Fook Kam [1970] AC 942. Finally, the coroner’s decision not to hold an 23

Canning v Northants Coroner [2005] EWHC 3125 (Admin), [2005] Inquest LR 181, para 11. ibid para 13. 25 ibid para 17. 26 ibid paras 11 and 12. 27 ibid paras 23, 24 and 25. 24

28 Rachel Marcus inquest can only be impugned on Wednesbury grounds, in other words for irrationality or illegality; see Touche per Simon Brown LJ at paragraph 16 and Terry v East Sussex Coroner [2002] QB 312 para 21.

Referring to the expert evidence obtained by the family’s solicitors, Carnwath LJ stated: 27. [Counsel for the claimant] is able to point to certain points in the material, some of which I have mentioned, where there are some inconsistencies and where further investigation might have produced some more material. But when faced with the question who is alleged to have been culpable, he found some difficulty in responding. It is particularly notable that even when pressed on the matter by the solicitors, immediately following the Divisional Court’s decision, [the family’s expert] did not assert that anyone was culpable. The highest he would put it was a lack of ‘prudence’ but he acknowledged the difficulties for those involved. He uses such expressions as ‘counsel of perfection’, and he also points to the fact that similar symptoms might have resulted in constipation. 28. None of this, in my view, comes close to showing that someone was culpable or that there was reason to suspect that someone was culpable. Still less does it show that the Coroner was perverse in taking the view that nothing was to be gained by probing the matter further, and that the statutory test for requiring her to hold an inquest simply was not satisfied.

It is notable that the Court made its findings on the basis of written expert evidence given to the coroner which was not tested in oral evidence; neither was the factual basis on which the expert gave his opinion. On the basis of what is cited in the judgment perhaps it should have been; or at least the direct question as to examination, causation and timing could have been put to the expert prior to the coroner making her decision. The words ‘reasonable cause to suspect’ in the previous legislation have now of course been replaced with ‘reason to suspect’. This is unlikely to make any difference to the high threshold of Wednesbury unreasonableness which will be applied to the review of the coroner’s decision whether or not to hold an inquest. Other Cases R (Laurence) v West Somerset Coroner [2008] EWHC 1293 (Admin), [2008] Inquest LR 42—there was no evidence on which a coroner could reasonably have cause to suspect an unnatural death. Connah v (1) Plymouth Hospitals NHS Trust; (2) Greater Manchester Coroner; (3) Plymouth and South West Coroner; (4) Cornwall Coroner [2010] EWHC 1727 (Admin), [2010] Inquest LR 182—two of the coroners did not have jurisdiction to hold an inquest as the body was never in their district. One could have made a report to the Secretary of State; however she had used all the diligence the public were entitled to expect of a coroner when she informed the Attorney-General’s office that nothing on the evidence suggested that the deceased’s death was unnatural or its causes unknown. Accordingly, she was entitled to make no report under section 15. The Court was, therefore, in no position to make an order under section 13(2) for an inquest to be held because it could not be satisfied that the inquest ought to be held or that it was in the interests of justice to do so under section 13(1). On the basis of an earlier expert report, there was nothing to justify a judicial review of the decision not to report the death to the Secretary of State. Sheridan-Higgins v HM Coroner for Manchester [2015] Inquest LR 7—whether a Coroner had lawfully discontinued an investigation where a post-mortem identified death by natural causes.

Duty to Hold an Inquest 29

B. Other Proceedings The courts have also examined whether proceedings other than inquests are sufficient to comply with the state’s procedural (investigative) obligations under Article 2 of the European Convention on Human Rights (ECHR), and whether an inquest needs to be held notwithstanding the existence of those proceedings.

(i) Wright and another v Secretary of State for the Home Department [2001] EWHC Admin 520, [2001] Inquest LR 66 Keywords: Inquiry, prisons, unnatural death The deceased died in prison of a fatal asthma attack. His family brought civil proceedings under the Fatal Accidents Act 1976 and made a claim for judicial review seeking a mandatory order that the Home Office initiate an independent investigation into the circumstances surrounding the death. An inquest had already been held. The Court found that the inquest had not been an effective official investigation and did not comply with the requirements of Article 2: relevant witnesses were not called, there was no investigation into the medical treatment the deceased had received nor any independent medical evidence, evidence in relation to the medical practitioner under scrutiny was not disclosed and his role was not adequately explored. More importantly for the purposes of this chapter, the civil proceedings did not constitute an effective official investigation: liability was admitted at an early stage and there was never a hearing at which evidence of the circumstances of the deceased’s death could be adduced or tested.28 Despite the fact that an inquest was held, the Home Office had failed in its duty under Article 2 to set up an official investigation into the circumstances of the death.29 In other words, whether or not a family has brought civil proceedings against any party will be irrelevant to the coroner’s investigation, which may constitute the only means by which the procedural obligations arising under Article 2 can be satisfied.30

(ii) R (Antoniou) v Central and North West London NHS Foundation Trust [2013] EWHC 3055 (Admin), [2013] Inquest LR 224 Keywords: Medical care, mental health, Article 2 The deceased, the claimant’s wife, was detained under section 3 of the Mental Health Act when she took her own life. Although the Trust undertook an internal serious untoward incident investigation, there was no ‘independent’ investigation by the strategic health authority prior to the inquest. Her husband brought judicial review proceedings alleging that this lack of an independent investigation was a breach of Article 2. The Divisional Court held that Article 2 did not require a separate, independent investigation.

28 Wright and another v Secretary of State for the Home Department [2001] EWHC Admin 520, [2001] Inquest LR 66, para 61. 29 ibid para 64. 30 ibid para 68.

30 Rachel Marcus

Aikens LJ: 76. … Our first conclusion is that no domestic authority requires that, in order to fulfil the State’s Article 2 procedural requirements, there must be an independent investigation from the outset into the death of a patient who has been detained under the MHA and who dies whilst in the hospital’s care. L is Mr Bowen’s highpoint, but that was a near suicide case and so there could be no inquest of any type. If the law were that an independent investigation was required from the outset when the State’s Article 2 procedural obligations are triggered ‘automatically’, then the Supreme Court would have said so in Smith but it did not. Moreover, none of the ECtHR decisions indicates that this is required when a member State has a procedural system for investigating deaths which includes an inquest. 77. Conclusion on Issue One [What is the scope of the Article 2 procedural obligation on the State in a case where a patient who has been detained in a mental hospital under section 3 or 5 of the MHA commits suicide whilst in the care of the hospital?] We accept that those detained in mental hospitals under the MHA pose a high suicide risk and we accept that, in those circumstances, the hospital authorities (to be regarded for these purposes as agents of the State) will be bound by the Article 2 substantive obligations to take reasonable care to ensure that such patients do not commit suicide, by putting in place systematic precautions against it. We also accept (as we must given Lord Hope’s remark in Smith at [98] and Lord Mance’s similar statement at [210]) that if those precautions fail then the State’s Article 2 procedural obligations will be triggered. But the investigation into the circumstances of the death will be opened to public scrutiny by a Middleton inquest and that will, in our view, generally fulfil the State’s Article 2 procedural obligations. Such an inquest meets the minimum standards identified by Lord Phillips in L at [35] and reiterated by him in Smith at [64]. We are not persuaded that there are any particular characteristics of the present case that mean that a Middleton inquest would be an inappropriate means to discharge the State’s Article 2 procedural obligations, as Lord Phillips envisaged might be the case in certain circumstances. 78. … We accept that it was an internal investigation that was not hierarchically or practically independent of the NHS Trust ‘implicated’ in the circumstances of JA’s suicide. But, as Lord Phillips emphasised in Smith, that is only a part of the ‘staged investigation’ that constitutes the framework in England and Wales for investigating deaths. The Inquest was opened in the normal way. The coroner and his officer have extensive powers and the coroner is an independent judicial officer. The investigations in an inquest are not limited to the fruits of any prior internal investigation. 80. Given our conclusion under Issue One, our answer to this question must be that there is no obligation to have an independent investigation apart from the Inquest at any point, for the reasons already stated.

Other Cases Cumbria Coroner v Ian Smith (unreported) Divisional Court, 22 July 2015—a Family Division judge had made findings of fact but embargoed the judgment pending criminal proceedings. No evidence was called at the inquest. In the absence of any evidence, the coroner stated that he could not ascertain how a baby died. The coroner had failed to perform his central function to investigate the death as there was reason to believe she had died a violent or unnatural death and the cause of death was unknown. A new inquest should be held after the further fact-finding in the Family Division. R (Halpin) v Attorney General [2011] EWHC 3759, [2011] Inquest LR 244—the Attorney-General had exercised his discretion and power lawfully in declining to support

Duty to Hold an Inquest 31

an application for an inquest under section 13 of the Coroners Act 1988 where an independent inquiry into the death of Dr David Kelly had already been held in public.

C. Resumption of Inquest: Sufficient Reason (i) Moss v HM Coroner for the North and South Districts of Durham and Darlington [2008] EWHC 2940 (Admin), [2008] Inquest LR 108 Keywords: Medical care, criminal law, judicial review This case dealt with the test under section 16 of the Coroners Act 1988, which permitted the coroner to resume the inquest after the conclusion of criminal proceedings if she had ‘sufficient cause’ to do so. The test of ‘sufficient reason’ under the current Act will not be materially different. Underhill J: 1. The Claimant’s father, Frank Moss, died on 14th March 2003. He had been treated during the previous year for lung cancer but secondary tumours in the brain had recently been diagnosed and although I have not seen explicit evidence to this effect it would appear that his illness was terminal. He was being treated (as an NHS patient) by his general practitioner, Dr. Howard Martin, who saw him twice on the day before he died and gave him two injections. Dr. Martin was subsequently charged with the murders of Mr. Moss and two other patients … The essence of the case against him was that he had deliberately given all three patients excessive quantities of opiates with the intention of terminating their lives. He was tried at Teesside Crown Court before Forbes J and a jury over a period of six weeks in late 2005. Dr. Martin did not give evidence at the trial. On 14th December 2005 he was acquitted on all charges. 2. An inquest into the death of Mr. Moss was opened in the ordinary way by H.M. Coroner for the Darlington and South Durham/North Durham districts; but it was adjourned pending the decision in the criminal proceedings.

The Court found that the possibility of gross negligence was not enough for the inquest to be resumed; it was the possibility of failings by the relevant authorities in dealing with concerns regarding the doctor’s practice which engaged Article 2 and required the resumption of the inquest: 23. If the only purpose of resuming the inquest were to examine whether Dr. Martin was negligent, I would not regard such a resumption as necessary in order to ensure compliance with art. 2. A case of ‘simple’ negligence by a doctor gives rise only to the narrower obligation discussed in para. 6 (2) above, namely that the available system should allow for ‘the practical and effective investigation of the facts and for the determination of civil liability’. Although there has been no inquest, the criminal trial fulfilled the same function of investigating and exposing in public the primary facts relating to Dr. Martin’s care of Mr. Moss. I accept that the acquittal of Dr. Martin means that there has never been any formal determination of the cause of death; but, as I understand it, the evidence that the administration of the opiates in question was the immediate cause of Mr. Moss’s death was not challenged, and it was certainly not suggested to me that the resumption of the inquest was necessary in order to obtain a finding on that question alone. As to civil liability, the system provides for the Claimant to bring a civil claim, and she in fact did so (though, unsurprisingly, her claim was compromised). If it were necessary—though I do not believe it is—I would add (a) that the criminal proceedings produced independent (and, I think, uncontroverted) evidence that

32 Rachel Marcus Dr. Martin’s treatment of Mr. Moss fell below a proper standard; and (b) that the pending proceedings in the GMC will in any event produce an independent and expert public decision on that question. Nothing of value, to the Claimant or to the public interest generally, would be gained by a resumption of the inquest for that purpose alone.

However, he held that the inquest should be resumed because there were concerns of systemic failings that were sufficient to raise suspicions of a breach of Article 2. 27. It is my conclusion, after careful consideration, that the material relied on by Mr. Cragg is sufficient to require investigation as part of any proper investigation into the causes and circumstances of Mr. Moss’s death. That material raises a real question as to whether the relevant authorities took sufficient steps to investigate repeated reports of inadequacies in Dr. Martin’s practice, including at least one report of concerns about his treatment of terminally ill patients, or to ensure that the initiative taken through Dr. Sensier was carried though. That potential failure is quite distinct from any individual negligence on the part of Dr. Martin himself. It may turn out that the steps taken, or not taken, were in fact entirely correct, or that any deficiencies may have had no impact on the circumstances of Mr. Moss’s death; but whether that is so will only appear once the facts have been properly investigated. 28. In reaching this conclusion, I have taken into account the fact that the suggested failures on the part of the authorities occurred a year or more before Mr. Moss’s death (though they were arguably of a continuing character), and that the risk which may not have been adequately addressed was not specific to Mr. Moss but applied to an indeterminate class, namely all terminally ill patients under his care. There is no authoritative guidance as to the point at which ‘general’ risks of this kind become—in the language of Lord Bingham MR in R v Inner West London Coroner, ex p. Dallaglio [1994] 4 All ER 139 (at p. 164 j)—too remote a part of the chain of causation to form part of the Coroner’s investigation; and I accept that in Hurst, on which Mr. Cragg relied, the class of persons at risk—the members of a single family—was narrower than in the present case. But Mr. Perks did not in fact submit that the matters raised were too remote as potential causes, or circumstances, of Mr. Moss’s death to form part of the investigation, and I think he was right not to do so. It is in my judgment not possible to reach any conclusion on that question without a full understanding of the facts: as Lord Bingham said in Dallaglio (loc. cit.), the question of how far to pursue his investigation must be one for the judgment of the Coroner, but the possibility that some issues may ultimately be considered to fall outside its scope cannot be a reason for declining to resume the inquest at all. … 30. It follows that in my judgment if the Coroner had had proper regard to the need for an investigation into the way in which the authorities had dealt with concerns about Dr. Martin’s practice he would have felt obliged to resume the inquest. The question then arises whether the resumed inquest should be of the Jamieson or the Middleton type—in other words, whether the wider obligation under art. 2 is engaged. 31. In the absence of authoritative guidance, I return to the underlying principle. A Middleton-type investigation is required when there is a potential case of a breach by the state of its positive obligation to protect life. That seems to me to be the position here. If it turns out to be the case that the relevant authorities had clear indications that Dr. Martin was or might be administering opiates to terminally ill patients in lethal dosages, but failed to take adequate steps to address that risk, that would in my view be properly characterised as breach of the obligation arising under art. 2. The nature of the risk—irrespective of Dr. Martin’s motivation—and the fact that it was expressly drawn to the authorities’ attention seems to me to make the case different in kind from that of a poorly-designed operational or administrative system such as was alleged in Takoushis.

Duty to Hold an Inquest 33

(ii) R (Medihani) v HM Coroner for Inner South District of Greater London [2012] EWHC 1104 (Admin), [2012] Inquest LR 22 Keywords: Unlawful killing, judicial review The deceased, Arsema Dawitt, was stabbed to death by a young man who attempted to hang himself when remanded in custody, resulting in his being unfit to plead at his trial. The jury heard evidence and concluded that he had deliberately and unlawfully killed her. A hospital order was imposed. It transpired that on 30 April 2008, not long before her death, Arsema, her mother and a friend had gone to the police to report their concerns about the young man in question not long before her death, including his harassment of her and threats to kill. However, the coroner declined to resume the inquest opened and adjourned pending the outcome of the criminal proceedings. The deceased’s mother challenged that decision. The coroner found that ‘whilst there were failures in the way the police dealt with the allegation, as described in the report, there was nothing that they knew or ought to have known of a real or immediate risk to Miss Dawitt’s life’.31 Silber J: 24. The issue on this application is whether the Coroner was entitled to conclude that there was not ‘sufficient cause’ to resume the inquest. It is common ground that the approach to be adopted in considering a challenge to a decision by a Coroner not to resume an adjourned inquest after criminal proceedings have finished, was explained by Simon Brown LJ (as he then was) in a judgment with which Sir Thomas Bingham MR and Farquharson LJ agreed in R (Dallaglio) v Inner West London Coroner [1994] All ER 139, 155, when he said that: ‘The decision to be made under s16 (3) is of a highly discretionary character and in no way circumscribed by a need to find exceptional circumstances, only “sufficient cause”. The Coroner states that “only rarely” are inquests resumed after criminal proceedings but, of course, the section itself envisages, rather than discourages such a course’. … 34. The claimant’s case depends on showing that the Coroner erred in law in not resuming the Inquest because there was in the words of section 16(3), ‘a sufficient cause to do so’ as (i) there had arguably been a ‘real and immediate risk to life’; (ii) the police had arguably ‘failed to take measures which, judged reasonably, might have been expected to have avoided that risk’ and (iii) there had not been a proper investigation by the time of the Coroner’s decision under challenge or at all. … 36. … [I]t is said by [counsel for the claimant] Mr Owen that there has not been (as there ought to have been) an effective investigation into Arsema’s death capable of satisfying the State’s obligations under Article 2, and the only way in which this obligation can be satisfied is by resuming the Inquest because that would enable matters to be considered. I will turn to consider the facts bearing in mind that unlike in the decisions of the appellate courts in the cases of Osman, Van Colle, M itchell and Rabone to which I have already referred, I am not concerned with a claim for damages, but instead with the very different issue of whether the claimant can show that the

31 R (Medihani) v HM Coroner For Inner South District Of Greater London [2012] EWHC 1104 (Admin), [2012] Inquest LR 22, para 22.

34 Rachel Marcus Coroner erred as a matter of public law in deciding not to resume the Inquest. This issue was considered by Hickinbottom J in his decision in R (Palmer and Palmer) v HM Coroner for the County of Worcestershire [2011] EWHC 1453(Admin) in which he made a fact-sensitive decision based on very different facts from those arising in the present case. … 40. It must not be forgotten that I am not concerned with the issue of whether damages can be claimed on the basis that Arsema’s article 2 rights have been infringed. The issue for me is the totally different one of whether the Coroner’s decision that there was not sufficient cause to resume the inquest was unreasonable and was unlawful. In my view, this information available on 30 April 2008 ought to have shown that that there was, adopting the wording of section 16(3) of the Coroners Act 1988, a ‘sufficient cause’ to believe that as at 30 April 2008, there was (or arguably was) a real and immediate risk to the life of Arsema. The Coroner erred because she failed to attach proper weight to the threat to kill … … 43. If, which is not the case, I had been in doubt as to whether the Coroner should have found that in the light of the information disclosed on 30 April 2008, there was a sufficient cause to resume the inquest on the grounds of there having arguably been a real and immediate risk to the life of Arsema on the basis of information known to the authorities, I would then have proceeded to consider the matter on the basis put forward by Lord Bingham in Van Colle [32] when he said (with emphasis added) that:— ‘the test [of whether there was a real and immediate risk to the life of Arsema] depends not only on what the authorities knew, but also on what they ought to have known. Thus stupidity, lack of imagination and inertia do not afford an excuse to a national authority which reasonably ought, in the light of what it knew or was told, to make further enquiries or investigations: it is then to be treated as knowing what such further enquiries or investigations would have elicited.’ 44. This approach was approved of by Lords Brown and Carswell in their speeches in the same case, but Lord Phillips took a different view as he explained [86] in respect of the degree of knowledge required of the authorities to determine if there was a ‘real and immediate risk to life’ that:— ‘There are at least two possibilities. The first is that “ought to have known” means “ought to have appreciated on the information available to them”. The alternative meaning is “ought, had they carried out their duties with due diligence, to have acquired information that would have made them aware of the risk”. The reasoning of the Court [in Osman] leads me to believe that the former was the meaning intended.’ 45. These conflicting comments by two former Lord Chief Justices present a first instance judge in my position with the unenviable task of choosing between them, and with the greatest respect, I would prefer the approach of Lord Bingham essentially for the reasons which he gives and which appears to have been adopted by Ouseley J in granting permission to pursue this application. Applying that principle to this case, the police knew what SRO Johnson had been told on 30 April 2008 that Nugesse had previously attacked Arsema and that he had threatened to find and to kill Arsema, and in consequence, they ought to have spoken to Nugesse and made further inquiries. If they had done so, they would have discovered that he was infatuated with Arsema and that he was so jealous that he is likely to have used very serious violence on her and implemented his threat to find and to kill her. It is noteworthy that as explained in the written skeleton argument of the Coroner when Nugesse spoke to the police after he had killed Arsema, he sought to justify the murder by saying that she had been ‘cheating on him’. All these matters would have shown that

Duty to Hold an Inquest 35 the risk to Arsema’s life was real and immediate. This would have shown the need for the police to take some action especially as on 30 April 2008, Arsema was only 14 years of age while Nugesse was seven years older than her. I have concluded that the Coroner was not entitled to conclude that there was not sufficient cause not to resume the inquest.

(iii) Flower v HM Coroner for Devon, Torbay and South Devon [2015] EWHC (Admin) Keyword: Coroner The deceased, Keith Dance, met his death in violent circumstances. An inquest was opened but suspended pending criminal proceedings; one man pleaded guilty, and one woman was convicted, of the murder of the deceased. On receiving notice of the conviction, the coroner did not resume the inquest. That decision was challenged and the court had to determined whether it could order a fresh inquest. McCombe LJ: 15. It is clear that in the present case there was no discontinuance of the investigation under section 4 of the 2009 Act but only a suspension under Schedule 1 of the Act and a later decision not to resume. Accordingly, it seems to me that the investigation, which, as section 6 provides, requires an inquest as a constituent part, has not been completed. Further, in this case, an inquest was opened and adjourned. It seems to me, therefore, that on the ordinary meaning of the convoluted (and somewhat puzzling) provisions of the two Acts, for an investigation to have been ‘held’, it has to have been completed; a part investigation is no more an investigation that has been ‘held’ than a part inquest is an inquest that has been held. Without the completion of the inquest, required by section 6 on the facts of this case, as it seems to me, the investigation has not been completed and, therefore, has not been ‘held’ for the purposes of section 13(1)(b) of the 1988 Act. … 16. If this is correct, the court has no jurisdiction to order an investigation in the present case. The old investigation is still in being and the coroner can be invited to resume it in the light of the new evidence now relied upon by the applicant. Any new decision would be amenable to challenge on judicial review, if appropriate. … 26. Mr Bunting also referred us to the decision of this court in Fraser v HM Coroner for North West Wales [2010] EWHC 1165 (Admin) in which the procedural circumstances were precisely those to be found in this case. There had been criminal proceedings arising out of the deceased’s death. The inquest had been suspended and not resumed. An application for a new inquest under section 13(1)(b) was brought by the deceased’s daughter. (Mr Hough of counsel, who had appeared for the coroner in Terry, also appeared for the coroner in Fraser.) In giving the lead judgment (with which Pill LJ agreed), Rafferty J (as she then was) said, ‘It is not in issue that the only mechanism for achieving this [i.e. modifying the entry in the Register in the manner sought by the applicant] is a new inquest.’ The point now before us, therefore, was not taken. Mr Bunting argued that tacitly no one considered that there was any objection to jurisdiction. 27. In contrast to the Fraser case we were taken to the decision of Silber J in R (Medihani) v HM Coroner for Inner South District of Greater London [2012] EWHC 1104 (Admin). There, following criminal proceedings, on 3 June 2009 the coroner was informed of the result of those proceedings and decided not to resume his inquest. As in the present case, following a report by the Second

36 Rachel Marcus Interested Party to our proceedings, a request was made to the coroner to reconsider the decision and to resume the inquest. The coroner refused to do so, not on the basis that she was functus officio, but ‘on the merits’. The decision was challenged by judicial review. It was not suggested that the only mode of challenge was under section 13. (Mr Hough of counsel again appeared for the coroner. 28. As counsel recognised, none of these cases decide the issue that now arises and I find nothing in them that displaces my view taken upon the words of the statutes and the scheme of them which I have sought to explain above. Further, I find my thinking very similar to the views expressed by Simon Brown LJ in Terry. It does not seem to me that the procedure that follows the nonresumptionof an investigation, by the provision of a Form certifying the result of criminal proceedings, replaces an inquest. No doubt the finding in the criminal court provides a basis of an ascertained and certified cause of death and provides a still firmer foundation for not continuing an investigation than the certification at an earlier stage following a post-mortem. However, I do not see that this should be seen as a substitute for a completed investigation under the 2009 Act, particularly now that the potential purpose of an investigation is expanded by section 5(2) of the Act, being the precise provision upon which this applicant relies in seeking (in one way or another) the reopening of the case. 29. In my judgment, therefore, for the reasons given, I would find that this is not a case in which either an inquest or an investigation has been ‘held’ within the meaning of section 13(1)(b) of the 1988 Act, because neither process has been completed. If my Lord agrees, then we are unable to entertain the present application and it must be dismissed. It follows, however, from our decision that it would be open to the applicant to invite the coroner to reconsider his decision.

HHJ Thornton: 31. I agree. This application must therefore be dismissed for the reasons given by McCombe LJ. 32. In my judgment, the addition of the words ‘or an investigation’, by amendment to section 13(1)(b) of the Coroners Act 1988, does not, nor was intended by Parliament to, alter the effect of the unamended provision. It merely reflects the different use of language in the two Acts, namely ‘inquest’ in the 1988 Act and ‘investigation’ in the Coroners and Justice Act 2009 which by virtue of section 6 must include an inquest. Both words remain in the amended provision so as to allow the High Court to consider ‘inquests’ completed before 25 July 2013 and ‘investigations’ (including inquests) completed on and after that date, when the amendment came into force. 33. In short, therefore, an inquest or an investigation has not been ‘held’ for the purposes of section 13(1)(b) until an inquest has been conducted and completed. When that happens the coroner becomes functus officio in respect of inquiring into the death (although the coroner may still exercise other powers such as writing a report to prevent future deaths, under paragraph 7, Schedule 5 to the 2009 Act). 34. In the case of an investigation which has been discontinued under section 4 of the 2009 Act, the coroner ‘may not hold an inquest into the death’ (section 4(3)(a)). Therefore no completed inquest or investigation will have been ‘held’ for the purposes of section 13(1)(b) of the 1988 Act (as amended). Nevertheless, the coroner is not powerless to act further where appropriate. Section 4(3) of the 2009 Act provides that section 4(3)(a) ‘does not prevent a fresh investigation’ from being conducted. 35. In this case no inquest was held, therefore the application must fail. It follows that the coroner was not functus officio when he suspended the investigation pending criminal proceedings and decided not to resume the investigation following the outcome of those proceedings.

Duty to Hold an Inquest 37 36. A coroner is not functus officio in those circumstances, even though an investigation has been commenced under section 1 of the 2009 Act, because the investigation is not complete; no inquest has been held. Nor is a coroner functus officio (where an investigation has not been commenced) when the coroner has notified the local registrar of births and deaths either in Form 100A (no post-mortem examination) or Form 100 B (after a post-mortem examination) that there will be no investigation (and therefore no inquest). 37. In all cases, where the coroner is not functus officio, the coroner may revisit the earlier decision not to proceed further. In this case, where the coroner decided not to resume the investigation, he will have to resume the investigation (‘must’) if he ‘thinks that there is sufficient reason for resuming it’. If he does not so think, he will not have to. That will be a matter for him, not for us, should he be invited to reconsider his decision not to resume.

38

4 The Role and Scope of an Inquest ISABEL MCARDLE

I. Overview An inquest has a very distinct role and scope. Members of the public often have an inaccurate understanding of the function of an inquest, and how its function limits the type of questions which may be asked, and what type of outcome an inquest might achieve. As to its role, an inquest is a fact-finding exercise: it cannot determine questions of civil liability or criminal liability on the part of a named person (section 10(2) of the Coroners and Justice Act 2009 (CJA 2009), formerly rule 42 of the Coroners Rules 1984). Despite a sometimes contradictory impression (interested persons being separately represented, inquests taking place in courts), an inquest is not a trial; it is an inquisitorial rather than an adversarial process. As to its scope, this is technically limited by section 5 of CJA 2009 (formerly rule 36 of the Coroners Rules 1984). This section requires the coroner or jury to ascertain who the deceased was, and how, when and where he came by his death. The evidence elicited should answer these questions.1 Further, neither the coroner nor the jury are entitled to express an opinion on any other matters.2 However, there is a tension between the limitations imposed by section 5 and the coroner’s duty first to conduct an inquest that is ‘full and fair, practical and effective’,3 and second to raise concerns in a Report to Prevent Future Deaths (PFD report).4 Consequently, ‘the investigation will often be wider than what is strictly required for the purposes of the verdict (now conclusion) and what can be legitimately contained in a verdict’.5 This allows the coroner to hear evidence going beyond the remit of the section 5 questions, in particular establishing whether there are grounds for a prevention of future deaths report, and the content of such a report.6 The Human Rights Act 1998 (HRA 1998), which came into force in October 2000, has had a significant impact upon the scope of coroners’ inquests. In some cases there is a

1 With the exception of establishing whether there are grounds for a PFD report, and the content of such a report. See Chapter 25 on PFD reports. 2 Although the coroner is entitled to make recommendations in a PFD report—see Chapter 25. 3 Moses LJ in R (Lin) v Secretary of State for Transport [2006] Inquest LR 161. 4 See Chapter 25. 5 R (Butler) v HM Coroner for the Black Country District [2010] EWHC 43, [2010] Inquest LR 50, para 56, citing R (Takoushis) v Inner North London Coroner [2005] EWCA Civ 1440, [2006] 1 WLR 461 and R v Inner West London Coroner ex parte Dallaglio [1994] 4 All ER 139. 6 See Chapter 25 on adducing evidence pertaining to PFD reports.

40 Isabel McArdle

rocedural obligation under Article 2 of the European Convention on Human Rights p (ECHR) to conduct an effective investigation into a death. It is common to refer to the traditional more limited inquests and those whose scope is extended to comply with the procedural obligation under Article 2 by the names of the cases which establish the correct approach for each, hence a traditional inquest is called a Jamieson inquest and an Article 2 inquest a Middleton inquest. Where the state is or may be responsible for the death, an inquest may be required to be of the Middleton style, because no other process will adequately discharge that obligation (for role and scope of Article 2 inquests see Chapter 7). Middleton inquests are distinct from Jamieson inquests, in that the question of how the deceased came to die is interpreted more broadly. In a Jamieson inquest, ‘how’ means ‘by what means’, while in a Middleton inquest it means ‘by what means and in what circumstances’.7 In other words, in a Middleton inquest, the inquiry is into wider factual matters, such as systemic failures in state institutions, which caused or contributed to the death. This case has significantly impacted upon domestic coronial law, in that it has broadened the scope and nature of inquests tremendously. Curiously, the effect has been felt in both types of inquest so that the view commonly held today is that, in reality, the difference in scope between a Jamieson and Middleton inquest is limited to the conclusion.8

II. Legislation Coroners and Justice Act 2009 5. Matters to be ascertained (1) The purpose of an investigation under this Part into a person’s death is to ascertain— (a) who the deceased was; (b) how, when and where the deceased came by his or her death; (c) the particulars (if any) required by the 1953 Act to be registered concerning the death. (2) Where necessary in order to avoid a breach of any Convention rights (within the meaning of the Human Rights Act 1998 (c. 42)), the purpose mentioned in subsection (1)(b) is to be read as including the purpose of ascertaining in what circumstances the deceased came by his or her death. (3) Neither the senior coroner conducting an investigation under this Part into a person’s death nor the jury (if there is one) may express any opinion on any matter other than— (a) the questions mentioned in subsection (1)(a) and (b) (read with subsection (2) where applicable); (b) the particulars mentioned in subsection (1)(c). This is subject to paragraph 7 of Schedule 5. [Action to prevent future deaths] …

7 8

This is now in statute—see CJA 2009, s 5(2). R (Smith) v Oxfordshire Assistant Deputy Coroner [2010] UKSC 29, [2011] 1 AC 1, Inquest LR 119, para 208.

The Role and Scope of an Inquest 41 10 Determinations and findings to be made (1) After hearing the evidence at an inquest into a death, the senior coroner (if there is no jury) or the jury (if there is one) must— (a) make a determination as to the questions mentioned in section 5(1)(a) and (b) (read with section 5(2) where applicable), and (b) if particulars are required by the 1953 Act to be registered concerning the death, make a finding as to those particulars. (2) A determination under subsection (1)(a) may not be framed in such a way as to appear to determine any question of— (a) criminal liability on the part of a named person, or (b) civil liability. (3) In subsection (2) ‘criminal liability’ includes liability in respect of a service offence.

III. Cases A. The Nature of the Process (i) R (Thompson) v HM Coroner for South London (1982) 126 SJ 625, Times, 9 July 1982 Divisional Court Keywords: Jurisdiction, role of an inquest An inquest was held into the deaths of 13 people in a fire at a house party. During the 13-day inquest, 11 days of which featured oral evidence, the coroner took no notes but annotated some statements. In summing up, the coroner read some sections of statements to the jury, which had in fact not been endorsed by the witnesses during live evidence or had been qualified by them. An open verdict was returned. The families of the deceased believed that an incendiary device had been thrown into the house and started the fire. They sought to quash the verdict, by virtue of the Attorney-General’s authority under section 6 of the Coroners Act 1887, and bring judicial review proceedings, on the basis, among other things, that there were material irregularities in the process, leading the coroner to fail to fulfil his obligation to sum up the evidence for the jury. Lord Lane CJ, Watkins LJ and Goff J, sitting in the Divisional Court, dismissed the application on the basis that there had been no material irregularity in the proceedings impugning the result, and natural justice was not offended. Lord Lane CJ noted: An inquest is a fact finding exercise and not a method of apportioning guilt. The procedure and rules of evidence which are suitable for one are unsuitable for the other. In an inquest, it should never be forgotten that there are no parties, there is no indictment, there is no prosecution, there is no defence, there is no trial, simply an attempt to establish facts. It is an inquisitorial process, a process of investigation quite unlike a trial where the prosecutor accuses and the accused defends.

42 Isabel McArdle

B. Role and Scope (i) R (Jamieson) v HM Coroner for North Humberside and Scunthorpe [1995] QB 1, [1994] 3 WLR 82 Keywords: Scope, prisons, suicide, negligence, conclusions This oft quoted case is one of the key authorities on the scope of an inquest. The deceased, a prisoner, committed suicide in his cell. He was a known suicide risk, but had been accommodated at night in a single cell without supervision. The coroner’s decision to direct the jury not to return a verdict of suicide in which lack of care formed a part, was challenged by way of judicial review by the deceased’s brother. The jury found that the deceased killed himself by hanging. The Divisional Court dismissed the application and the Court of Appeal dismissed the appeal on different grounds. Sir Thomas Bingham MR, in a seminal judgment that has laid the foundations for modern inquest law, reviewed the relevant case law and legislation and recorded 14 general conclusions. As to the role and scope of an inquest, he said the following:9 (1) An inquest is a fact-finding inquiry conducted by a coroner, with or without a jury, to establish reliable answers to four important but limited factual questions. The first of these relates to the identity of the deceased, the second to the place of his death, the third to the time of death. In most cases these questions are not hard to answer but in a minority of cases the answer may be problematical. The fourth question, and that to which evidence and inquiry are most often and most closely directed, relates to how the deceased came by his death. Rule 36 requires that the proceedings and evidence shall be directed solely to ascertaining these matters and forbids any expression of opinion on any other matter. (2) Both in section 11(5)(b)(ii) of the Act of 1988 and in rule 36(1)(b) of the Rules of 1984, ‘how’ is to be understood as meaning ‘by what means.’ It is noteworthy that the task is not to ascertain how the deceased died, which might raise general and far-reaching issues, but ‘how… the deceased came by his death,’ a more limited question directed to the means by which the deceased came by his death. (3) It is not the function of a coroner or his jury to determine, or appear to determine, any question of criminal or civil liability, to apportion guilt or attribute blame. This principle is expressed in rule 42 of the Rules of 1984. The rule does, however, treat criminal and civil liability differently: whereas a verdict must not be framed so as to appear to determine any question of criminal liability on the part of a named person, thereby legitimating a verdict of unlawful killing provided no one is named, the prohibition on returning a verdict so as to appear to determine any question of civil liability is unqualified, applying whether anyone is named or not. (4) This prohibition in the Rules is fortified by considerations of fairness. Our law accords a defendant accused of crime or a party alleged to have committed a civil wrong certain safeguards rightly regarded as essential to the fairness of the proceedings, among them a clear statement in writing of the alleged wrongdoing, a right to call any relevant and admissible evidence and a right to address factual submissions to the tribunal of fact. These rights are not granted, and the last is expressly denied by the Rules, to a party whose conduct may be impugned by evidence given at an inquest.

9

R (Jamieson) v HM Coroner for North Humberside and Scunthorpe [1995] QB 1, [1994] 3 WLR 82, 23G–24G.

The Role and Scope of an Inquest 43 (5) It may be accepted that in case of conflict the statutory duty to ascertain how the deceased came by his death must prevail over the prohibition in rule 42. But the scope for conflict is small. Rule 42 applies, and applies only, to the verdict. Plainly the coroner and the jury may explore facts bearing on criminal and civil liability. But the verdict may not appear to determine any question of criminal liability on the part of a named person nor any question of civil liability. (6) There can be no objection to a verdict which incorporates a brief, neutral, factual statement: ‘the deceased was drowned when his sailing dinghy capsized in heavy seas,’ ‘the deceased was killed when his car was run down by an express train on a level crossing,’ ‘the deceased died from crush injuries sustained when gates were opened at Hillsborough Stadium.’ But such verdict must be factual, expressing no judgment or opinion, and it is not the jury’s function to prepare detailed factual statements.

(ii) R (Middleton) v HM Coroner for Western Somerset [2004] UKHL 10, [2004] 2 AC 182, [2004] Inquest LR 17 Keywords: Scope, prisons, suicide, conclusions This case changed the face of coronial law. It found that the inquest regime of the time failed to satisfy the state’s investigative duty under Article 2 ECHR in some cases. In order to satisfy that obligation, the question of how the deceased came to his death is to be interpreted as ‘by what means and in what circumstances’, in cases where the inquest is to be the means by which the investigative obligation is met, and state liability for the death is in question. The jury at an inquest into a prisoner’s death returned a verdict that the deceased had killed himself while the balance of his mind was disturbed, but also handed the coroner a note containing factual conclusions indicating that the prison service had failed in its duty of care to the deceased. The coroner had directed the jury on the verdict, that their findings were confined to the identity of the deceased and to how, when and where he came by his death, that they could express no opinion on any other matter, and that since rule 4210 prohibited an inquest verdict being framed in such a way as to appear to determine any questions of criminal liability on the part of a named person or civil liability, they could not return a verdict of neglect. The coroner refused the family’s request to append the note to the inquisition. The deceased’s mother brought judicial review proceedings challenging the coroner’s direction to the jury and decision not to publish the note. The first instance judge made a declaration that there was a breach of the state’s Article 2 ECHR procedural investigative duty by virtue of the restrictions on the verdict. The Secretary of State for the Home Department (an interested party) appealed. The appeal was allowed in part, the Court of Appeal finding that systemic, but not individual neglect, was a finding open to the jury where the inquest was the means by which the Article 2 procedural duty was to be met (in the extract below, the ‘Convention requirement’). It set aside the first instance judge’s declaration and replaced it with a declaration in the following terms: In a case where (a) a coroner knows that it is the inquest which is in practice the way the State is to fulfil the adjectival obligation under Article 2 of the European Convention on Human Rights, and (b) a finding of neglect by the jury at the inquest could serve to reduce the risk of repetition of

10 A reference to the pre-Coroners and Justice Act 2009 regime. It has been replaced by CJA 2009, s10(2), quoted above under Section II. Legislation, which prohibits the framing of a determination in such a way that it appears to determine criminal liability of a named person, or civil liability.

44 Isabel McArdle the circumstances giving rise to the death being inquired into, rule 42 of the Coroners Rules 1984 can and should be construed as allowing such a finding, providing no individual is named therein.

The Secretary of State appealed. The appeal was allowed in part and the Court of Appeal’s declaration set aside. Lord Bingham, giving the opinion of the Committee, held: 30. In some cases the state’s procedural obligation may be discharged by criminal proceedings. This is most likely to be so where a defendant pleads not guilty and the trial involves a full exploration of the facts surrounding the death. It is unlikely to be so if the defendant’s plea of guilty is accepted (as in Edwards 35 EHRR 487), or the issue at trial is the mental state of the defendant (as in Amin [2003] 3 WLR 1169), because in such cases the wider issues will probably not be explored. 31. In some other cases, short verdicts in the traditional form will enable the jury to express their conclusion on the central issue canvassed at the inquest. McCann 21 EHRR 97 has already been given as an example: see para 14 above. The same would be true if the central issue at the inquest were whether the deceased had taken his own life or been killed by another: by choosing between verdicts of suicide and unlawful killing, the jury would make clear its factual conclusion. But it is plain that in other cases a strict Ex p Jamieson [1995] QB 1 approach will not meet what has been identified above as the Convention requirement. In Keenan 33 EHRR 913 the inquest verdict of death by misadventure and the certification of asphyxiation by hanging as the cause of death did not express the jury’s conclusion on the events leading up to the death. Similarly, verdicts of unlawful killing in Edwards and Amin, although plainly justified, would not have enabled the jury to express any conclusion on what would undoubtedly have been the major issue at any inquest, the procedures which led in each case to the deceased and his killer sharing a cell. 32. The conclusion is inescapable that there are some cases in which the current regime for conducting inquests in England and Wales, as hitherto understood and followed, does not meet the requirements of the Convention. This is a conclusion rightly reached by the judge in this case (see para 44 below) and by the Court of Appeal both in the present case (see para 44 below) and in cases such as R (Davies) v Deputy Coroner for Birmingham [2003] EWCA Civ 1739 at [71]. 33. Question (3). Can the current regime governing the conduct of inquests in England and Wales be revised so as to meet the requirements of the Convention, and if so, how? 34. Counsel for the Secretary of State rightly suggested that the House should propose no greater revision of the existing regime than is necessary to secure compliance with the Convention, even if it were (contrary to his main submission) to reach the conclusion just expressed. The warning is salutary. There has recently been published ‘Death Certification and Investigation in England, Wales and Northern Ireland: The Report of a Fundamental Review’, June 2003 (Cm 5831). Decisions have yet to be made on whether, and how, to give effect to the recommendations. Those decisions, when made, will doubtless take account of policy, administrative and financial considerations which are not the concern of the House sitting judicially. It is correct that the scheme enacted by and under the authority of Parliament should be respected save to the extent that a change of interpretation (authorised by section 3 of the Human Rights Act 1998) is required to honour the international obligations of the United Kingdom expressed in the Convention. 35. Only one change is in our opinion needed: to interpret ‘how’ in section 11(5)(b)(ii) of the Act and rule 36 (1)(b) of the Rules in the broader sense previously rejected, namely as meaning not simply ‘by what means’ but ‘by what means and in what circumstances’. 36. This will not require a change of approach in some cases, where a traditional short form verdict will be quite satisfactory, but it will call for a change of approach in others: paras 30–31 above. In the latter class of case it must be for the coroner, in the exercise of his discretion, to decide how best, in the particular case, to elicit the jury’s conclusion on the central issue or issues. This may be

The Role and Scope of an Inquest 45 done by inviting a form of verdict expanded beyond those suggested in form 22 of Schedule 4 to the Rules. It may be done, and has (even if very rarely) been done, by inviting a narrative form of verdict in which the jury’s factual conclusions are briefly summarised. It may be done by inviting the jury’s answer to factual questions put by the coroner. If the coroner invites either a narrative verdict or answers to questions, he may find it helpful to direct the jury with reference to some of the matters to which a sheriff will have regard in making his determination under section 6 of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976: where and when the death took place; the cause or causes of such death; the defects in the system which contributed to the death; and any other factors which are relevant to the circumstances of the death. It would be open to parties appearing or represented at the inquest to make submissions to the coroner on the means of eliciting the jury’s factual conclusions and on any questions to be put, but the choice must be that of the coroner and his decision should not be disturbed by the courts unless strong grounds are shown. 37. The prohibition in rule 36(2) of the expression of opinion on matters not comprised within sub-rule (1) must continue to be respected. But it must be read with reference to the broader interpretation of ‘how’ in section 11(5)(b)(ii) and rule 36(1) and does not preclude conclusions of fact as opposed to expressions of opinion. However the jury’s factual conclusion is conveyed, rule 42 should not be infringed. Thus there must be no finding of criminal liability on the part of a named person. Nor must the verdict appear to determine any question of civil liability. Acts or omissions may be recorded, but expressions suggestive of civil liability, in particular ‘neglect’ or ‘carelessness’ and related expressions, should be avoided. Self-neglect and neglect should continue to be treated as terms of art. A verdict such as that suggested in para 45 below (‘The deceased took his own life, in part because the risk of his doing so was not recognised and appropriate precautions were not taken to prevent him doing so’) embodies a judgmental conclusion of a factual nature, directly relating to the circumstances of the death. It does not identify any individual nor does it address any issue of criminal or civil liability. It does not therefore infringe either rule 36(2) or rule 42. 38. The power of juries to attach riders of censure or blame was abolished on the recommendation of the Report of the Departmental Committee on Coroners under the chairmanship of Lord Wright (1936) (Cmd 5070). It has not been reintroduced. Juries do not enjoy the power conferred on Scottish sheriffs by the 1976 Act to determine the reasonable precautions, if any, whereby the death might have been avoided (section 6(1)(c)). Under the 1984 Rules, the power is reserved to the coroner to make an appropriate report where he believes that action should be taken to prevent the recurrence of fatalities similar to that in respect of which the inquest is being held. Compliance with the Convention does not require that this power be exercisable by the jury, although a coroner’s exercise of it may well be influenced by the factual conclusions of the jury. In England and Wales, as in Scotland, the making of recommendations is entrusted to an experienced professional, not a jury. In the ordinary way, the procedural obligation under Article 2 will be most effectively discharged if the coroner announces publicly not only his intention to report any matter but also the substance of the report, neutrally expressed, which he intends to make.

(iii) R (Hurst) v HM Coroner for Northern District London [2007] UKHL 13, [2007] 2 AC 189, [2007] Inquest LR 29 Keywords: ECHR Article 2 right to life, investigative duty, scope This case rejected the argument that Middleton applied to all inquests.11

11 However, it has been superseded in relation to its comments on the temporal scope of Middleton style inquests: see the commentary on Re McCaughey’s Application for Judicial Review [2011] UKSC 20, [2012] 1 AC 725, [2011] Inquest LR 22 in Chapter 7 on Art 2.

46 Isabel McArdle

In May 2000 the deceased was killed by a neighbour. An inquest was opened and adjourned pending criminal proceedings, which resulted in a manslaughter conviction. The coroner subsequently refused to resume the inquest. The deceased’s mother brought judicial review proceedings to challenge this decision, arguing that the HRA 1998, which came into force in October 2000, applied although the death occurred before it came into force, and the Article 2 ECHR investigative obligation therefore required the inquest to be resumed. She wished for alleged failings by the police and housing authority, who had both received complaints about the neighbour’s conduct prior to the death, to be investigated. It was argued that section 3 of HRA 1998, which requires legislation to be read in a manner compatible with the ECHR, meant that the conduct of the public authorities involved should be investigated and the inquest re-opened for that purpose. The only basis upon which the coroner’s decision not to re-open the inquest could be challenged was that the inquest would engage the procedural obligation of the UK under Article 2 and would thus have needed to be a Middleton-type inquest. As such, the critical question was whether the claimant could rely on HRA 1998 when the death had taken place before it came into force. The majority of the House of Lords held she could not, as the deceased had died before the HRA came into force.12 However, Lord Brown rejected the argument that Middleton applies to all inquests: The contention that Middleton now applies to all inquests 48. Neither way the argument is put do I find persuasive and both were rightly rejected by the court below. Middleton clearly accepted that Jamieson was correctly decided. Were it otherwise, the House could simply have overruled it without recourse to the Human Rights Act 1998 at all, let alone section 3. It is plain that the House was not intending the Middleton approach thereafter to apply in all cases. In the first place, an Article 2 investigative obligation only arises in the comparatively few cases where the state’s responsibility is or may be engaged. Secondly, even where the obligation does arise, it will often be satisfied without resort to a Middleton inquest—in some cases by criminal proceedings, in particular ‘where a defendant pleads not guilty and the trial involves a full exploration of the facts surrounding the death’ (para 30 of the committee’s opinion delivered by Lord Bingham of Cornhill); in others, like McCann, where ‘short verdicts in the traditional form will enable the jury to express their conclusion on the central issue canvassed at the inquest’ at para 31 of the opinion. All this is clear from the committee’s opinion which in terms recognises at para 36 that only sometimes will a change of approach be called for.

(iv) R (Amin) v Secretary of State for the Home Department [2003] UKHL 51, [2004] 1 AC 653, [2003] Inquest LR 1 Keywords: Deaths in custody, Article 2 investigative duty, scope This is a key case on the question of when the Article 2 investigative duty arises, despite other types of investigation already having taken place. See also commentary on this case in Chapter 7. The uncle of the deceased, who was murdered by a cell mate while in a young offender institution, appealed against a decision that the state had complied with its investigative

12

But see Silih and McCaughey in the Supreme Court in Chapter 7 on Art 2.

The Role and Scope of an Inquest 47

duty pursuant to Article 2 ECHR. The prison service accepted responsibility for the death. A coroner’s inquest had been opened and adjourned but not resumed, there had been an internal prison service inquiry and a police investigation into whether prison employees or the prison service should be prosecuted. The Commission for Racial Equality had also conducted an investigation into racism within the prison service, specifically referring to this death. The family of the deceased sought an independent public inquiry, which the Secretary of State refused, and the deceased’s uncle challenged the decision by way of judicial review. The House of Lords allowed the appeal of the uncle of the deceased. A minimum standard of review, in order for the state to comply with its Article 2 ECHR investigative duties, following a death in state custody, required sufficient public scrutiny to ensure accountability and an appropriate level of involvement of the next-of-kin to ensure that their legitimate interests were protected. On the facts of this case, none of the investigations had met these minimum standards. Lord Bingham noted: 31. The state’s duty to investigate is secondary to the duties not to take life unlawfully and to protect life, in the sense that it only arises where a death has occurred or life-threatening injuries have occurred: Menson v United Kingdom (Application No 47916/99) (unreported) 6 May 2003, p 13. It can fairly be described as procedural. But in any case where a death has occurred in custody it is not a minor or unimportant duty. In this country, as noted in paragraph 16 above, effect has been given to that duty for centuries by requiring such deaths to be publicly investigated before an independent judicial tribunal with an opportunity for relatives of the deceased to participate. The purposes of such an investigation are clear: to ensure so far as possible that the full facts are brought to light; that culpable and discreditable conduct is exposed and brought to public notice; that suspicion of deliberate wrongdoing (if unjustified) is allayed; that dangerous practices and procedures are rectified; and that those who have lost their relative may at least have the satisfaction of knowing that lessons learned from his death may save the lives of others.

(v) R (Smith) v Oxfordshire Assistant Deputy Coroner [2010] UKSC 29, [2011] 1 AC 1, Inquest LR 119 (the ‘Catherine Smith’ case)13 Keywords: Article 2, military personnel, scope In this case the Supreme Court doubted whether there was any practical difference between the two forms of inquest, Jamieson and Middleton styles, save for the conclusion (formerly the ‘verdict’). A territorial army reservist died from hyperthermia on a British Army base in Iraq in August 2003. The Supreme Court concluded that the inquest into his death must comply with Article 2 where there was a reasonable suspicion that systemic failures caused the death. However, the judges commented on the distinction between a Jamieson inquest and a Middleton inquest, and held that there was little between them. Lord Mance: 208. It is in these circumstances of relevance that Lord Phillips PSC questions the extent of the distinction, and in particular whether there is any difference in practice between a Jamieson and a Middleton inquest, other than the verdict (paras 69(ii) and 78), and to note that he has on this 13

This case is considered further in Chapters 7 (on Art 2) and 22 (on military personnel and civilians at war).

48 Isabel McArdle point the support of Lord Walker JSC (though he also agrees with Lord Rodger JSC on this point) as well as of Lord Collins and Lord Kerr JJSC. Lord Hope DPSC expressly (para 95) and, as I read him, Lord Rodger JSC implicitly (paras 112–115) see a continuing distinction between the scope of investigation under a Jamieson and a Middleton inquest. For my part, I would have wished to be able to go as far as Lord Phillips PSC, but I do feel some difficulty about questioning whether there is in practice any real distinction at all (save in the verdict expressed), having regard to Hurst and the 2009 Act and also having regard to my relative ignorance as to the extent to which such a distinction between the two types of inquest is in fact meaningful in day-to-day practice (as the courts in Jamieson, Middleton and Hurst must on the face of it have thought). However, it seems unnecessary on this appeal to pursue this aspect further. Everyone agrees that coroners have a considerable discretion as to the scope of their inquiry, although the verdict that they may deliver differs according to the type of inquest being held. The practical solution is no doubt for coroners to be alert to the possibility that a Middleton type verdict may be, or become, necessary, and to be ready to adapt the scope of their investigation accordingly.

C. Evidence and Scope The scope of an inquest will, of course, have a profound impact upon the evidence which it is appropriate for the coroner to consider. The coroner is bound to confine the inquest to consideration of the four questions who, when, where and how (in either of its incarnations) and issues which may give rise to concerns as to the risk of future deaths and the evidence should reflect these issues. The evidence available to the coroner will, conversely, influence the scope of an inquest. It may become clear through disclosure, for instance, that a public body may have caused death through systemic failure. Coroners and legal representatives should remain alive to the possibility that an inquest’s scope may need to change (including becoming narrower as well as wider) as evidence is disclosed and explored. For more commentary on evidence, see Chapter 12.

(i) R (Butler) v HM Coroner for the Black Country District [2010] EWHC 43, [2010] Inquest LR 50 Keywords: Scope, unlawful killing, evidence A judicial review application was brought, in a Jamieson style inquest, seeking to challenge a coroner’s decisions as to the disclosure and scope of evidence which could be adduced at the inquest into the death of an employee of the claimants, who had been killed when another employee drove into him. The Crown Prosecution Service had decided not to pursue a manslaughter charge against the claimants. The coroner wished to adduce evidence on the basis that unlawful killing might be a verdict open to the jury, such evidence going to issues of whether there had been breaches of health and safety law, the claimants’ previous dealings with the Health and Safety Executive and defects with the vehicle involved in the death. The Court granted the application, finding that the coroner had erred in the approach he took to determining the scope of the inquest, and disclosure. In part this was because he had failed to consider whether the evidence taken at its highest could demonstrate that there was a single gross breach of duty by a director.

The Role and Scope of an Inquest 49

Beatson J: 56. One consequence of what was said about the relationship between the statutory duty to ascertain by what means the deceased came by his death and the prohibition in rule 42 is that it is accepted that the investigation will often be wider than what is strictly required for the purposes of a verdict and what can legitimately be contained in a verdict: see R v Inner West London Coroner, ex p. Dallaglio [1994] 4 All ER 139, 155 and 164 (Simon Brown LJ and Sir Thomas Bingham MR); R (Takoushis) v Inner North London Coroner [2006] 1 WLR 461 at [47] … … 64. It cannot be the case, as the claimants’ written submissions come close to suggesting, that because the Crown Prosecution Service decided that it would not prosecute for manslaughter the coroner cannot include in the matters to be explored with the jury those which may lead him to leave an unlawful killing verdict for the jury to consider. The evidence that emerges at the later inquest may be different from that which was available when the prosecuting authorities were considering the case. Similarly, the claimants’ initial position (grounds, paragraph 5A(ii)) that Jamieson’s case does not permit an investigation of systemic failure is unsustainable in the light of Takoushis’s case: see [68]–[69] below. So is their initial position that any inquiry beyond eye and site witnesses and the pathology and toxicology evidence would be too broad. 65. I have, however, concluded that, in this case, while it might well have been possible for the coroner to reach the conclusions that he did as to the scope of the inquiry and the evidence to be adduced, he fell into error in the approach he used to determine these matters and in his approach to disclosure. First, in his letter of 15 June, he stated that ‘it is entirely a matter for the coroner to decide what evidence to call and what evidence not to call’ and that ‘rule 36 of the Coroner’s Rules does not limit the evidence the coroner shall call’. But rule 36(1) expressly does do this by requiring ‘the proceedings and evidence’ to be ‘directed solely’ to ascertaining the matters listed. The terms of this letter would not in themselves have led me to set aside the decision, but the broad interpretation Mr Hoskins [counsel for the coroner] invited me to give to it does not really save the position. Even reading the reference to ‘the evidence’ in the letter as a reference to ‘the scope of the investigation’ and recognising that the width of the investigation will normally be broader than the scope of permissible verdicts, the coroner’s powers as to that scope, while wide, are not unlimited. 66. Secondly, there is no suggestion in the coroner’s correspondence before proceedings were instituted or his response to these proceedings that, in considering the scope of the inquest and the evidence to be called, he considered whether the evidence, at its highest, suggested that there was a single gross breach of a duty of care by a director. Nor does the correspondence or the coroner’s responses to these proceedings suggest an awareness of the rule that, for the purposes of gross negligence manslaughter, the individual acts of those employed by a company cannot be aggregated into a composite act of gross negligence: see Attorney General’s Reference (Number 2 of 1999) [2000] QB 796 at 813 and R v Inner South London Coroner, Ex p. Douglas-Williams [1999] 4 All ER 344 at 353. The closest the coroner comes to these matters is that, in his witness statement for these proceedings, he states that he has not yet decided whether the jury should be permitted to consider an unlawful killing verdict and ‘will not be able to do so until all the evidence has been heard’, and at that stage he would do so by applying the test in R v Galbraith [1981] 73 Cr App R 124 …14 …

14

See Chapter 12.

50 Isabel McArdle 82. I have concluded that in determining the scope of the inquiry the coroner fell into error in respect of the approach to be taken to the question of whether evidence pointing to a possible verdict of unlawful killing should be explored with a view to determining at a later stage whether this verdict should be left to the jury because of his failure to consider whether the evidence, at its highest and taking account of the non-aggregation principle, suggested that there was arguably a gross breach of a duty of care by a director.

(ii) R (Takoushis) v Inner North London Coroner [2005] EWCA Civ 1440, [2006] 1 WLR 461 Keywords: Article 2, mental health, medical negligence This case established that system failures can be investigated in Jamieson inquests. The deceased, who had a history of serious mental health problems, was seen by a member of the public apparently preparing to commit suicide by jumping off a bridge. He was taken to hospital. The hospital’s triage system required patients such as the deceased to be seen by a doctor within 10 minutes of arrival. This did not occur, and by the time a doctor attended to assess the deceased, he had absconded. He subsequently committed suicide. The deceased’s family requested that a jury be called at the inquest on the basis that the death had occurred in circumstances the ‘continuance or possible recurrence of which is prejudicial to the health or safety of the public’ within the meaning of section 8(3)(d) of the Coroners Act 1988 and that the inquest be adjourned to permit them to obtain expert evidence. The coroner refused the application and ruled that there had been no systemic neglect, that there was no defect in the triage system itself and that later changes to the triage system meant a breakdown of that system was less likely. The deceased’s widow sought to review the decision. The primary question before the Court of Appeal was whether the coroner had investigated the relevant issues fully, having concluded prior to the inquest that there was no systemic neglect on the facts, a decision which led to narrower evidence being heard. The Court found that he had not, because he could not properly conclude the there was no systemic failure on the evidence available prior to the inquest. Importantly, the case demonstrates that a Jamieson inquest can investigate system failures. Sir Anthony Clarke MR, giving the judgment of the Court, held: 48. … It was recognised on all sides that the circumstances in which Mr Takoushis came to leave the hospital, only shortly after he had apparently taken steps to jump into the river and gone voluntarily to the hospital and only shortly before he in fact jumped into the river and thus took his own life, were by no means too remote from his death so that, in Sir Thomas Bingham MR’s words, they became too remote to form a proper part of the investigation. 49. The question is whether those circumstances were fully investigated in the way contemplated in both Ex p Jamieson [1995] QB 1 and Ex p Dallaglio [1994] 4 All ER 139. Such an investigation surely involved investigating both what the system at the hospital was and how it operated on the day in question. The coroner recognised that but, in our judgment, did not investigate the system in sufficient detail. He correctly identified the system as the emergency triage system described above, namely that it was for the triage nurse to put the patient in a suitable category, which Nurse Blake did when she put him into category 2. However, he did not investigate how the system was to work after that and did not consider, for example, what was to be done and, in particular, what safeguards were in place if, for some reason, the patient could not be seen within the target time. Instead, he

The Role and Scope of an Inquest 51 concluded before the inquest began that what occurred after the triage decision had been made was a breakdown of the system rather than any defect in the system itself. … 105. … It seems to us that, however it is analysed, the position is that, where a person dies as a result of what is arguably medical negligence in an NHS hospital, the state must have a system which provides for the practical and effective investigation of the facts and for the determination of civil liability. Unlike in the cases of death in custody, the system does not have to provide for an investigation initiated by the state but may include such an investigation. Thus the question in each case is whether the system as a whole, including both any investigation initiated by the state and the possibility of civil and criminal proceedings and of a disciplinary process, satisfies the requirements of article 2 as identified by the European court in the cases to which we have referred, namely (as just stated) the practical and effective investigation of the facts and the determination of civil liability. 106. The question is whether the system in operation in England in this case meets those requirements. In our opinion it does. The system includes both the possibility of civil process and, importantly, the inquest. We can understand the point that the possibility of civil proceedings alone might not be sufficient because they do not make financial sense and may not end in a trial at which the issues are investigated. However, in the context of the other procedures available, an inquest of the traditional kind, without any reading down of the 1988 Act by giving a wider meaning to ‘how’ as envisaged in the Middleton case [2004] 2 AC 182, and provided that it carries out the kind of full and fair investigation which is discussed earlier in this judgment and which (we hope) will now take place, in our opinion satisfies the requirement that there will be a public investigation of the facts which will be both practical and effective. Moreover, the family will be able to take a full part.

D. Content of Reasoning Supporting Conclusion The scope of an inquest will influence the content of the coroner’s conclusions and reasoning. A Middleton style inquest will normally result in a narrative conclusion, which can contain relevant detail going to the circumstances leading up to the death, in particular on the issue of the role of the state.15

(i) R (Farah) v HM Coroner for Southampton and New Forest District of Hampshire [2009] EWHC 1605 (Admin), [2009] Inquest LR 220 Keywords: Jurisdiction, striking out The deceased, who had been assaulted, alleged prior to his death that the ambulance crew and police who attended following the assault had treated him unfairly on grounds of race. The emergency services left the scene and shortly after the deceased fell into a road. The deceased died when struck by a vehicle. The coroner’s verdict of accidental death, following a Middleton type inquest, was accompanied by a lengthy ‘judgment’ which included reference to the deceased having been overly 15 Although see the Chief Coroner’s Guidance No 16 on Conclusions (www.judiciary.gov.uk/wp-content/ uploads/2013/10/guidance-no17-conclusions.pdf) that states at para 34, ‘A narrative conclusion [which can apply to Middleton and non-Middleton inquests] should be a brief, neutral, factual statement; it should not express any judgment or opinion’. See further Chapter 15 on conclusions.

52 Isabel McArdle

familiar with customers of a club, in particular females. He also found that the deceased had not been treated unfairly on the ground of his race, and that it was unprofessional for the deceased’s daughter’s solicitors to have endorsed the allegation that he was. An application was made to quash the judgment, but not the verdict. The application was allowed in part. It was lawful for a coroner to give a ‘judgment’ in relation to the stipulated issues, but the Court could declare the judgment unlawful where it contained comment irrelevant to the stipulated issues to be decided, and to the circumstances of the death. Some of the comments made were unlawful, as they were irrelevant, gratuitous and seriously offensive. Silber J: 20. … (d) There is no provision preventing a coroner from giving a judgment which refers to matters falling within his jurisdiction by which I mean ‘the stipulated issues’. Neither the [1988] Act (whether in its long title or otherwise) nor the Rules purport to constitute an entire code setting out all the functions of a coroner. Indeed there are some restrictions on what a coroner can do in Rules 36 and 42 as I have explained in paragraphs 17 and 18 above but they do not preclude a coroner giving a judgment on many other matters; (e) Indeed there are matters on which a coroner may well be obliged to give a short judgment and they are closely connected with decisions on the stipulated issues such as why a line of questioning is objectionable and why a particular verdict cannot be left to the jury. If a coroner was not entitled to give those judgments on such issues, the unsuccessful party would not know why he or she had failed to persuade the coroner. In addition, this court would have difficulties in determining a subsequent application for judicial review. Furthermore, the coroner might be justified in explaining in a judgment the procedure he adopted in providing the verdict on the specified issues, such as how he had dealt with a claim by a witness that he need not answer a question because of his privilege against selfincrimination; and (f) The right of the coroner to give a judgment on the stipulated issues must of course not infringe rule 36 or rule 42 … … 47. For the reasons which I have given I have concluded that:— (a) A coroner sitting without a jury is entitled to give a verdict and a judgment dealing with the stipulated issues which are (i) who the deceased was; (ii) how, when, by what means and in what circumstances and where the deceased came by is death; and (iii) the particulars for the time being required by the Registration Act to be registered concerning the death; (b) A coroner is entitled to give a judgment on matters which arise during the inquest and which are relevant to the determination of the stipulated issues; (c) The Court has jurisdiction which should be sparingly exercised to declare comments made by a coroner as being unlawful. Such a declaration may be made if the comments (i) do not relate to any of the stipulated issues in any way; (ii) are matters of opinion; and (iii) are sufficiently unfairly critical and offensive of any party; and that (d) Declarations should be made that comments made by the defendant coroner in his judgment in respect of the matters referred to in paragraphs 30, 42(d) and 45 above are unlawful.

The Role and Scope of an Inquest 53

(ii) Jones v HM Coroner for Southern District of Greater London [2010] EWHC 931, [2010] Inquest LR 80 Keywords: Scope, clinical negligence, sufficiency of inquest An open verdict was quashed and a new inquest ordered where there had been insufficiency of investigation into a death caused by Fentanyl, an opioid drug. The deceased had been prescribed the drug, but had levels 15 to 20 times the fatal average in his blood and the question arose as to how he was able to possess such quantities. The inquest was quashed and a new inquest ordered. The inquest did not answer the question of how the deceased came to have such quantities of Fentanyl, and new evidence emerged afterwards going to the safety of the drug in the light of concerns in the United States and elsewhere about its safety. There was further a wider public interest into how the deceased had died given the unanswered issues of the state of knowledge within the medical profession of the drug’s dangers and questions as to the safety of repeat prescriptions, given on demand at short notice, and in relation to out-of-hours prescribing, without reference to medical records. Owen J: 30. As to the second limb of the claimant’s case, I consider that in the light of the information now available as to the incidence of death by unintended overdose of fentanyl, there is a wider public interest in a full inquiry into the means by which the deceased came to meet his death. Such an inquiry would address a number of issues of wider public interest. In particular there is an issue as to degree to which the medical profession at large is alive to the possible danger to life presented by the prescription of fentanyl. Secondly the circumstances in which the deceased came to be given repeat prescriptions of fentanyl over a very short period of time, apparently on demand, and in the case of the prescriptions issued by the out of hours GP services, without reference to the deceased’s medical records, are of obvious public concern. Such issues were addressed in the investigation undertaken by the Croydon PCT, but that investigation was not conducted in public. In the course of the hearing we sought further information as to the distribution of the ‘Serious Untoward Incident’ report produced by the investigating team. A response to that request was subsequently received from the Croydon PCT by letter dated 15 March 2010. The report has been circulated to each of the Out of Hours organisations involved in the incident, Croydon, Seldoc and Emdoc, to the prescribing doctors, to NHS Direct, the editor of the British National Formulary and to the Medicine and Healthcare Products Regulatory Agency. But it is not in the public domain. It is also to be noted that in the letter of 15 March 2010, the Assistant Medical Director of NHS Croydon commented under the heading ‘Fentanyl Deaths’ that: ‘In December 07 there were 36 deaths attributable to fentanyl. As of February 2010 the M edicine and Healthcare Regulatory Agency statistics show that in the last 12 months, there have been 76 fentanyl related deaths. The findings of inquests are vital to understanding the factors that contribute to such a significant increase in fentanyl related deaths. There is a continuing need to alert doctors to the indications for prescribing this drug, its contraindications and drug interactions, side effects and safe prescribing procedures.’ 31. I am satisfied that it is necessary in the interests of justice that another inquest be held …

54

5 The Coroner MARINA WHEELER QC

I. Overview The role of the modern coroner, as it has evolved since medieval times, is to investigate violent or unnatural deaths, and those whose cause is unknown or which have occurred in state custody or detention.1 The inquest, the prime focus of this book, is one part of this investigation. The coroner also has important functions prior and ancillary to convening an inquest (considered briefly below) and at the conclusion of the inquest (See Chapter 25 on Reports to Prevent Future Deaths).2 Preliminary inquiries undertaken by the coroner may include holding a post-mortem examination or autopsy.3 Where these reveal a natural cause of death, the coroner will usually conclude that it is unnecessary to continue the investigation.4 Where an investigation is discontinued the coroner must record the cause of death and inform the next of kin or personal representative.5 It is for the coroner to determine, whether in an individual case a post-mortem examination is required.6 Other preliminary decisions include when, and to whom,7 to release a body.8 The coroner has a right to possession of the body of the deceased

1

See Coroners and Justice Act 2009 (CJA 2009), s 1(1) and (2). See CJA 2009, Sch 5, para 7; and Coroners (Investigations) Regulations 2013, Part 7. 3 See CJA 2009, s 14; and Investigations Regulations 2013, regs 11–17. Reg 13 sets out notification requirements relating to post-mortem examinations. 4 A death from natural causes within state detention will require an inquest. 5 Investigations Regulations 2013, reg 17. 6 R (Worch) v Greater Manchester Coroner [1987] 3 All ER 661; R (Jacobs) v HM Coroner for Northumberland (2000) 53 BMLR 21, [2000] Inquest LR 43. A failure to order a post-mortem examination may amount to a failure to conduct a sufficient inquiry and so be liable to quashing. In R (McLeish) v HM Coroner for the Northern District of Greater London [2010] EWHC 3624 (Admin), [2010] Inquest LR 202, in a case where the cause of death was unascertained, the coroner acted unlawfully in failing to provide the deceased’s mother with a copy of the postmortem or toxicology reports, where the delay effectively prevented her from seeking a second post-mortem, burial having previously taken place. See also R (Rotsztein) v HM Senior Coroner for Inner London [2015] EWHC 2764 (Admin) for the propositions which guide a coroner’s decision-making where faced with religious objections to invasive post-mortem procedures. 7 In R (Haqq) v (1) HM Coroner for Inner West London (2) Alfia Sultana Haqq [2003] EWHC 3366 (Admin), the deceased’s first and second wives both claimed to be entitled to his body. On an application for judicial review of the coroner’s decision not to release the body, the Court granted a declaration identifying the claimant as the person entitled to release. 8 See Investigations Regulations 2013, Part 5, regs 20–22. 2

56 Marina Wheeler QC

until completion of his coronial functions. He must, however, release the body for burial or cremation as soon as reasonably practicable.9 A failure to order timely release of a body may breach the right to respect for family life in Article 8 of the European Convention on Human Rights (ECHR).10 The coroner may order exhumation of a body for the purposes of examination.11 The decision whether to convene an inquest,12 and whether to do so with or without a jury,13 are matters within the judgment and discretion of the coroner. (See Chapter 3 on the duty to hold an inquest.) In certain circumstances, the coroner may be required to suspend an inquest, for example where informed that a criminal prosecution is under consideration.14 Where an inquest is convened, [i]t is the duty of the coroner, as the public official responsible for the conduct of inquests, whether he is sitting with a jury or without, to ensure that the relevant facts are fully, fairly and fearlessly investigated … He must ensure that the relevant facts are exposed to public scrutiny, particularly where there is evidence of foul play, abuse or inhumanity. He fails in his duty if his investigation is superficial, slipshod or perfunctory. But the responsibility is his. He must set the bounds of the inquiry. He must rule on the procedure to be followed. His decisions, like those of any other judicial officer, must be respected unless and until they are varied or overruled.15

In determining the scope, manner and procedure of the inquest, the coroner has a broad discretion.16 Specific statutory powers, designed to achieve a rigorous investigation include a power to compel the production of documents and attendance to give evidence as well as a power (as of yet not in force) of entry, search and seizure.17 When it comes to verdict, as Lord Bingham underlined in Middleton, ‘it must be for the coroner, in the exercise of his discretion, to decide how best, in the particular case, to elicit the jury’s conclusion on the central issue or issues’.18

9 Investigations Regulations 2013, reg 20(1). If the body is not released within 28 days, the next of kin and personal representative must be notified of the reason for the delay: reg 20(2). 10 In Pannullo and Fortei v France (2003) 36 EHRR 42, the applicants’ four-year-old child died two days after admission to hospital in June 1996. Her body was not released for burial for seven months, although it could have been returned after the post-mortem in July 1996. The Court found a breach of the state’s positive obligation under Art 8 and ordered compensation. 11 See CJA 2009, Sch 5, para 6, and Investigations Regulations 2013, reg 22. 12 See R (Canning) v HM Coroner for Northampton [2006] EWCA Civ 1225, [2006] Inquest LR 155; R (Touche) v Inner London North Coroner [2001] 1 QB 303, [2001] Inquest LR 223; R (Lawrance) v HM Coroner for West Somerset [2008] EWHC 1293 (Admin), [2008] Inquest LR 42. 13 See R (Heseltine) v HM Coroner for Greater Manchester [2010] EWCA Civ 267, [2010] Inquest LR 87; R (Paul) v Deputy Coroner for the Queen’s Household and Assistant Deputy Coroner for Surrey [2008] QB 172, and R (Shafi) v HM Senior Coroner for East London [2015] EWHC 2106 (Admin). 14 See CJA 2009, s 11 Duty or Power to Suspend or Resume Investigations, Sch 1; and R (Pereira) v HM Coroner for Inner South London [2007] 1 WLR 3256, [2007] Inquest LR 160. Where a coroner suspends his investigation and in the light of criminal convictions resulting from the death, decides not to resume it, the Court has no power pursuant to s.13(1)(b) CJA 2009 directing a fresh investigation. The correct approach is to invite the coroner to resume the existing, unconcluded, investigation: Flower v HM Coroner for the County of Devon, Plymouth, Torbay and South Devon [2015] EWHC 3666 (Admin). 15 R v HM Coroner for North Humberside ex p Jamieson [1995] QB 1, per Bingham LJ, 26B–D. 16 Subject to compliance with the Coroners (Inquests) Rules 2013, adopted pursuant to CJA 2009, s 45. 17 See CJA 2009, Sch 5, paras 1–5. 18 R (Middleton) v HM Coroner for the Western District of Somerset [2004] AC 182, para 37.

The Coroner 57

In exercising his discretion, the coroner must act reasonably and fairly.19 Decisions and determinations made by the coroner during the course of the inquest, while not subject to appeal as such, are also subject to review by the higher courts on an application for judicial review pursuant to rule 54 of the Civil Procedure Rules (CPR). For interlocutory decisions (relating to conduct of the investigation or procedure at the inquest) the jurisdiction will be exercised sparingly. See Chapter 26 for detailed consideration of challenges to the inquest verdict. The CJA 2009 created three main types of coroner: senior coroner (a full-time post for each ‘area’ based on local government districts), area coroner (appointed to take part of the workload in certain busy areas) and assistant coroner (previously deputies and assistant deputies).20 At the top of the hierarchy sits the new post of Chief Coroner.21 The function of Chief Coroner, in summary, is to provide national leadership and guidance to coroners, improve the consistency and efficiency of the coronial service, liaise between central and local government and coroners, and participate in the appointment of coroners. New appointees to coronial posts must be under 70, hold a legal qualification and have been engaged in law-related activity for at least five years (doctors lacking legal qualifications are no longer eligible for appointment).22 A local authority councillor cannot hold office.23 In general, all coroners are expected to handle any type of inquest. This is subject to the creation of two (non-statutory) specialist cadres: military coroners dealing with deaths of service personnel on active service and advisory coroners for disaster victim identification (DVI) cases. The CJA 2009 provides for the appointment of specialist coroners for treasure.24 At the time of writing, these provisions have not yet been brought into force. Full-time coroners are prohibited, by statute, from undertaking legal work unconnected to the office of coroner.25 The prohibition does not, of course, extend to part-time office holders. Particular care must thus be taken to avoid any conflicts of interest or the appearance of bias (see case summaries below). Coroners are appointed by their local authority, subject to approval by the Lord Chancellor and the Chief Coroner. Once appointed they become, and remain, independent judicial office holders and are subject to same disciplinary regime as other members of the judiciary—currently to be found within the Judicial Appointments and Discipline (Prescribed Procedures) Regulations 2013 and Judicial Conduct (Judicial and other Office Holders) Rules 2013.26 The power to remove a coroner, for ‘incapacity’ or ‘misbehaviour’, rests with the Lord Chancellor in conjunction with the Lord Chief Justice.27

19 A phrase used by Lord Woolf MR in R (Douglas-Williams) v Inner South London Coroner [1990] 1 All ER 344, at 349 and repeated frequently since. See, eg, the judgment of the Chief Coroner in R (LePage) v HM Assistant Deputy Coroner for Inner South London [2012] EWHC 1485, para 57. 20 See CJA 2009, Chapter 3 Coroner Areas, Appointments etc, ss 22–24 and Schs 2 and 3. 21 See CJA 2009, s 35 and Sch 8. 22 An inquest into the death of Amy Winehouse held in October 2011 was quashed on discovery that the coroner, Suzanne Greenaway, appointed by her husband, Andrew Reid, lacked the requisite legal qualification. 23 CJA 2009, Sch 3, para 4. 24 See CJA 2009, Chapter 4 Investigations concerning treasure, ss 25–31. 25 See Courts and Legal Services Act 1990, s 75 and CJA 2009, Sch 3, para 5. 26 See CJA 2009, Sch 3, para 14; Constitutional Reform Act 2005, Part 4, Chapter 3. 27 CJA 2009, Sch 3, para 13.

58 Marina Wheeler QC

II. Legislation and Other Sources Coroners and Justice Act 2009 1. Duty to investigate certain deaths (1) A senior coroner who is made aware that the body of a deceased person is within that coroner’s area must as soon as is practicable conduct an investigation into that person’s death if subsection (2) applies. (2) This subsection applies if the coroner has reason to suspect that— (a) the deceased died a violent or unnatural death (b) the cause of death is unknown, or (c) the deceased died whilst in custody or otherwise in state detention. … 4. Discontinuance where cause of death revealed by post-mortem examination (1) A senior coroner who is responsible for conducting an investigation under this Part into a person’s death must discontinue the investigation if— (a) an examination under section 14 reveals the cause of death before the coroner has begun holding an inquest into the death; and (b) the coroner thinks it is not necessary to continue the investigation. (2) Subsection (1) does not apply if the coroner has reason to suspect that the deceased— (a) died a violent or unnatural death, or (b) died while in custody or otherwise in state detention. … 14. Post-mortem examinations (1) A senior coroner may request a suitable practitioner to make a post-mortem examination of a body if— (a) the coroner is responsible for conducting an investigation under this Part into the death of the person in question, or (b) a post-mortem examination is necessary to enable the coroner to decide whether the death is one into which the coroner has a duty under section 1(1) to conduct an investigation.

Guidance Chief Coroners Guidance No 6, ‘The Appointment of Coroners’, 24 July 2013.28 Chief Coroners Guidance No 7, ‘A Cadre of Coroners for Service Deaths’, 26 July 2013.29

28 www.judiciary.gov.uk/publications/guidance-no-6-the-appointment-of-coroners/.

29 www.judiciary.gov.uk/publications/guidance-no-7-a-cadre-of-coroners-for-service-deaths/.

The Coroner 59

Chief Coroners Guidance No. 15, Dealing with the Possibility of Apparent Bias, 25 September 2014.30 Law Sheet No 5, ‘The Discretion of the Coroner’, 18 February 2015.31 Code of Practice 3—Post Mortem Examinations Issued by Human Tissue Authority, July 2014.32

III. Cases A. The Office of Coroner—Appointment and Removal (i) Forrest v (1) The Lord Chancellor and (2) The Lord Chief Justice [2011] EWHC 142 (Admin), [2011] Inquest LR 1 Keywords: Coroners, funding, judicial review, local authorities A coroner sought permission to judicially review the defendants’ decision to remove him from office following a breakdown in relations with the local authority, Bristol City Council (BCC). At the heart of the dispute was disagreement about the nature of that relationship, including the extent to which the coroner was accountable to the local authority on matters such as his expenditure and the local authority’s powers of direction over his staff. Following a formal complaint to the Judicial Office by the local authority’s head of legal services, a disciplinary investigation concluded that the coroner’s conduct and behaviour towards local authority staff had been unreasonable, intemperate and offensive and recommended his removal from office. Refusing permission on an application for judicial review, Laws LJ made clear the distinction between a coroner’s judicial function and the administrative running of the coronial service. 27. … The Coroner is a judge; and neither BCC nor anyone else, save a properly constituted court of appeal or review, has the least business interfering with his judgments or how he arrives at them. His independence as a judge is a matter of constitutional guarantee. Nothing could be more elementary. Accordingly, as the Review Body observed … BCC ‘could not lawfully exercise its powers so as to prevent the proper administration of the coronial service’. 28. … in July 2004 the claimant’s administrative staff were transferred to BCC under TUPE … Accordingly, as their employers, BCC enjoyed appropriate powers of control and direction over the staff, to be exercised consistently with the claimant’s judicial independence and proper freedom of action as a judge … … 30. In short, BCC is obliged to meet the expenses of the Coroner’s office, but the obligation is not open-ended and the sums involved are by no means at the Coroner’s entire discretion.

30 www.judiciary.gov.uk/publications/guidance-no-15-apparent-bias/.

31 www.judiciary.gov.uk/publications/law-sheet-no-5-the-discretion-of-the-coroner/. 32 www.hta.gov.uk/code-practice-3-post-mortem-examination.

60 Marina Wheeler QC

B. Bias (i) R (Pounder) v HM Coroner for the North and South Districts of Durham and Darlington [2010] EWHC 328 (Admin), [2010] Inquest LR 38 Keywords: Bias, coroners, judicial review Adam Rickwood, aged 14, took his own life at a secure training centre some hours after he had been physically restrained. The verdict of the first inquest was quashed on judicial review due to the coroner’s refusal to rule on the legality of the physical restraint, and a fresh inquest was ordered. Granting the family’s challenge to the coroner’s refusal to recuse himself from the second inquest, Burnett J, set out the relevant test for bias. 12. … Where an allegation of apparent bias is made, the test to be applied is ‘whether the fairminded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased’. That is the test approved by the House of Lords in Porter v Magill [2002] 2 AC 357, per Lord Hope of Craighead at [103] adopting the approach of Lord Phillips of Worth Matravers MR in In re Medicaments and Related Classes of Goods (2) [2001] WLR 700. The fair-minded and informed observer is neither unduly sensitive nor suspicious yet he is not complacent. He is assumed to have taken the trouble to acquire knowledge of all relevant information before coming to a conclusion: see Helow v Secretary of State for the Home Department [2008] 1 WLR 2416, per Lord Hope of Craighead between paragraphs [1] and [3]. The fair-minded and informed observer is also expected to be aware of the law and the functions of those who play a part in its administration: see Lawal v Northern Spirit [2003] UKHL 35 at paragraphs [21] and [22]. When applying the test, any Court will take account of an explanation given by the tribunal and assume that the hypothetical observer is also aware of that explanation: see In re Medicaments [67]. In AGW Group v Morrison [2006] EWCA (Civ) 6, [2006] 1 WLR 1163, the Court of Appeal summarised a number of the principles in play. In paragraph [8] of his judgment, Mummery LJ cited a passage from Locabail (UK) Limited v Bayfield Properties Limited [2000] QB 451 at 480, in which it had been observed that in most cases the answer regarding apparent bias would be obvious. However, the Court on that occasion went on to indicate that if there were real ground for doubt, the doubt should be resolved in favour of recusal.

The Court found that during the course of the first inquest, the coroner had expressed firm views on the key issues of the causation of the restraint and the honesty of the securityofficer witnesses employed by Serco (some of whom were responsible for carrying out the restraint). Given the importance of these issues to be aired at the resumed inquest, the coroner should have recused himself. The Court rejected the argument that the coroner’s participation in the judicial review proceedings strengthened the argument in favour of recusal (see paragraphs 34–35). It acknowledged that, 35. … Whilst the mere fact that a judge has decided a case adversely to a party or criticised the conduct of the party or his lawyers will rarely be if ever be a ground for recusal, a real danger of bias might be thought to arise if there were evidence of animosity. In the coronial context the position is analogous with cases where a coroner has said something seriously derogatory of an interested person (eg R v Inner West London Coroner ex parte Dallaglio [1994] 4 All ER 139) or whose correspondence has become inappropriately combative (eg R (Butler) v HM Coroner for the Black Country District [2010] EWHC 43 (Admin).

The Coroner 61

Neither feature was considered relevant in the present case. The Court noted that the bias point could have been, but was not, taken during the original application for judicial review, however this was not a bar to it being raised late: ‘if the argument is well made, it would not be lawful for the coroner to preside over the fresh inquest’.33

(ii) R (Shaw) v (1) HM Coroner and (2) Assistant Deputy Coroner for Leicester City and South Leicestershire [2013] EWHC 386 (Admin), [2013] Inquest LR 10 Keywords: Bias, coroners, judicial review Mr Ewan, who was 86 years old and had a defective heart valve, died at Glenfield Hospital, Leicester in September 2007 following a trans aortic valve implantation (TAVI), at the time a relatively new procedure. Mr Ewan’s daughter sought to quash the jury’s conclusion (that death was the ‘unintended outcome of a therapeutic medical procedure’) on a number of grounds, including bias, on the basis that the coroner should have recused himself ‘because of his friendship with Peter Reading, a former Chief Executive Officer of the NHS Trust of which the Glenfield Hospital forms part’. Refusal of an application inviting the coroner to recuse himself, made at the pre-inquest review (PIR) was not, the Court noted, questioned either informally in correspondence, by way of judicial review or at the start of inquest three weeks later. Subsequently it had been clarified that Mr Reading ceased involvement in the work of the trust some weeks before the TAVI procedure. After setting out the test of bias, as expressed in Pounder and citing Porter v Magill, Burnett J posed, and answered, the question: 46. Would a fair-minded and independent observer conclude that the conduct of the inquest by the assistant deputy coroner might be biased on the basis that he might unconsciously seek to protect those who worked in a hospital for which his friend was once responsible? I think not. But even if there were some lingering doubt about the matter, the fact that Mr Reading had left his post before Mr Ewan’s procedure and death, to my mind, resolves it.

Burnett J then considered whether, if he was wrong, the claimant had by her conduct waived the right to take the bias point in the proceedings. 62. In my judgment it was incumbent upon Mrs Shaw to challenge the decision of the assistant deputy coroner before the inquest started, just as a litigant would ordinarily be expected to appeal against an interlocutory decision of a judge rejecting an application for recusal, rather than waiting for the trial and saving the point for a later appeal. Mrs Shaw had the necessary information to mount the challenge. Her decision not to do so amounts to an unequivocal waiver made with full knowledge of the necessary facts.

The Chief Coroner sitting with Burnett J agreed that on the facts, there was no apparent bias. 100. … the ‘personal friendship’ of the assistant coroner with Mr Reading was limited, Mr Reading had previously been chief executive of the relevant hospital trust but was no longer employed by

33 R (Pounder) v HM Coroner for the North and South Districts of Durham and Darlington [2010] EWHC 328 (Admin), [2010] Inquest LR 38, para 11.

62 Marina Wheeler QC the trust by the time of Mr Ewan’s surgical procedure, Mr Reading was not a witness, he had not made a statement, he was not referred to in evidence at the inquest nor was his post or successor, and the trust was not impugned in the inquest in either its systems or procedures. As my Lord said, this was a case about medical failings, not management failure.

He went on, helpfully, to address and underline the importance of coroners remaining alert to the appearance of bias and of raising a potential problem at the earliest opportunity, as the coroner had done in the present case. 104. It is inevitable that coroners, by the very nature of their work and the localness of coroner arrangements, will develop close contacts with some persons who enter the arena of the coroner investigation and inquest, for example senior members of hospitals and health trusts. If the close contact strays beyond the bounds of a working relationship into a personal one, the coroner should examine the circumstances carefully and decide whether to make a disclosure but not otherwise. So too should a part-time coroner who as a lawyer has clients (or his firm or chambers has clients) which might require open disclosure of a particular interest, for example acting for a company in the same group as the impugned company (as in Jones,34 supra).

Other Cases Re Jordan’s Applications for Judicial Review [2014] NICA 36—the Court of Appeal (Northern Ireland) gave guidance as to how coroners involved in adversarial judicial review proceedings could avoid the appearance of bias. A coroner’s access to the court should not be limited and, where necessary, the Court could order the inquest proceedings be conducted by another coroner.

C. Coronial Decisions Decisions taken by coroners during the course of an inquest which are most frequently challenged include: (i) (ii) (iii) (iv)

Whether to order or provide disclosure; Whether to adjourn the proceedings; Which witnesses and other evidence to call; What questions and issues to leave to the jury.

The lawfulness of decisions will often turn on their individual facts. A discretionary decision will be unlawful only if it is one that no reasonable coroner could have reached: that is, it is Wednesbury unreasonable.35 A decision about what conclusions to leave to a jury may involve a mixture of judgment as to the sufficiency of the evidence and discretion. (See Chapter 15 on conclusions). As the case law indicates, higher courts will interfere with interlocutory decisions only exceptionally.

34

Jones v DAS Legal Expenses Insurance Co Ltd [2003] EWCA Civ 1071, [2004] IRLR 218. An alternative approach adopted by Richards J in R (Goodson) v Bedfordshire and Luton Coroner [2006] WLR 432 focussed less on the reasonableness of the exercise of discretion than a judgment about whether more was required for Art 2 purposes. 35

The Coroner 63

(i) R (Craik) v HM Coroner for Wiltshire & Swindon [2004] EWHC 2653 (Admin) Keywords: Coroners, unlawful killing, judicial review Relatives of Mr Maddison, who died in 1953 after exposure to sarin nerve agent in Porton Down, sought a stay of a part-heard inquest in order to challenge the coroner’s p roposed directions to the jury in respect of unlawful act manslaughter and gross negligence manslaughter. Before dismissing the application, Forbes J cited the relevant law. 3. … it is sufficient, for the purposes of this judgment to refer to one passage in the judgment of Lord Woolf, MR (as he then was) in the case of R v Her Majesty’s Coroner for Exeter and East Devon ex parte Sharon Palmer, the transcript of which has been provided to me dated 10th December 1997, reference FC397/7452/D. In the course of his judgment, with which both Ward J and Mantel LJ agreed, Lord Woolf said this at page 23: ‘I finish by saying that it must be exceptional for there to be an application to the courts during the course of a Coroner’s inquisition. It means that the courts have to deal with the matter with great expedition as we have sought to do in the case of the present application. I would say, however, that, exceptionally, I regard this as a situation where the application was appropriately made at the end of the evidence of the inquest. It was important that the court’s ruling on these matters be given because, if the Coroner had gone wrong in deciding to withdraw the verdict of unlawful killing from the jury, that would have made the deliberations of the jury flawed and the whole inquest would have had to be heard again. Because the matter has been dealt with expeditiously, the jury will have the benefit of a summing-up by the Coroner which deals with the correct issues’.

Forbes J also referred to two cases, cited on the claimant’s behalf, which he agreed also appeared to contain exceptional circumstances justifying a stay: R (Kahn) v West Hertfordshire Coroner [2002] EWHC 302 (Admin) and R v Coroner for Inner North London ex parte Diesa Koto [1993] 157 JP 857. The Court noted however, that in the present case, the coroner had not proposed to withdraw the verdict of unlawful killing from the jury and considered there to be ‘a very real possibility’ that the verdict would satisfy the concerns raised. Accordingly, it was inappropriate to intervene and stay the inquest.

(ii) R (LePage) v (1) HM Assistant Deputy Coroner for Inner South London [2012] EWHC 1485 (Admin), [2012] Inquest LR 31 Keywords: Accident, coroners, inquest hearing, police, witnesses Stacie LePage, aged 18, died of acute cocaine toxicity after being stopped by police and ingesting a quantity of cocaine in a small plastic bag. Stacie’s parents sought, unsuccessfully, to quash the jury’s verdict of accidental death (with a short narrative statement), on a number of grounds, including the coroner’s failure to leave to the jury issues relating to the conduct of police officers (restraint and searching), their training, and advice given by the duty police doctor, as well as the coroner’s decision not to call a forensic pathologist instructed by the claimants.

64 Marina Wheeler QC

The Chief Coroner found that the coroner had a discretion not a duty to call the claimants’ pathologist, Dr James, which she exercised reasonably and fairly. Even if his report had raised a real possibility (which it did not) that search and restraint were contributing causes of death, the failure to call Dr James was not unlawful. He explained: 45. In Lewis36 the Court of Appeal held that the coroner has a power but not a duty to leave to the jury in a Middleton inquest circumstances which were possible but not probable causes of death. Sedley LJ was ‘unable to find a reason of principle for making it a duty’. Etherton LJ concluded that only matters which probably had a causal connection to death could form part of a verdict. There is therefore no requirement in a Middleton inquest to leave questions to a jury in respect of matters which possibly caused or contributed to the death.

The same principles were found to apply to the coroner’s decisions about calling witnesses and other evidence. 51. … It is for the coroner to decide how to adduce the necessary evidence as to death: McKerr v Armagh Coroner [1990] 1 WLR 649, 656. The coroner is not required to call every witness who might have relevant evidence, but sufficient witnesses to undertake a proper inquiry: R (Ahmed) v South and East Cumbria Coroner [2009] EWHC 1653 Admin, [35]. The coroner has a wide discretion on the calling of witnesses: Mack v HM Coroner for Birmingham [2011] EWCA Civ 712, in which the Court of Appeal considered a complaint by the family that the coroner had refused to call an important medical witness who had care of the deceased in the days before he died. Toulson LJ stated at [9]: ‘The coroner had a wide discretion—or perhaps more appropriately called a wide area of judgment—whom it is expedient to call. The Court will only intervene if satisfied that the decision made was one which was not open to him on Wednesbury principles.’

The Chief Coroner considered and dismissed the submission that there was a free-standing duty on the coroner to inquire into all possible issues in an Article 2 inquest, citing Bubbins v UK [2005] 41 EHRR 24 at paragraph 154 that ‘a coroner is required to confine his investigation to the matters directly causative of the death’. He noted the Court of Appeal’s conclusion that in a Middleton type inquest this meant focusing ‘the investigation and the inquisition on the central issue or issues in the case’.37 54. In my judgment the coroner did exactly that in this case. The question of excessive force in the use of restraint had the potential to become a central issue, but the evidence was never there to elevate it to that status. Nor did the reports of Dr James produce that elevation, the claimants’ understandable objective. Although the inquiry is ‘almost bound to stretch wider than strictly required for the purposes of a verdict’ per Lord Bingham at [24] in Re Jordan McCaughey [2007] 2 AC 226, ‘How much wider is pre-eminently a matter for the coroner …’ (ibid).

Having ruled that there was no duty to call Dr James, the Chief Coroner went on to observe that ‘as a matter of practical justice’ and in order to dispel suspicion of deliberate wrongdoing, it might have been ‘wiser’ to have called Dr James: see paragraphs 61–63. On the facts, the Court found there was insufficient evidence that the matters in issue contributed to the death so as to justify their being left to the jury.

36 37

R (Lewis) v Mid and North Shropshire Coroner [2010] 1 WLR 1836. R (LePage) v (1) HM Assistant Deputy Coroner for Inner South London [2012] EWHC 1485 (Admin), para 52.

The Coroner 65

(iii) R (Duffy) v HM Deputy Coroner for the County of Worcestershire [2013] EWHC 1654 (Admin), [2013] 134 BMLR 86, [2013] Inquest LR 172 Keywords: Coroners, inquest hearing, witnesses Thomas Duffy, died aged 14 months in the A&E department of Alexandra Hospital, Redditch some five and a half hours after arriving with apparent bronchial problems. During the course of his admission, the locum paediatric registrar failed to note a clearly enlarged heart and the on-call paediatric consultant refused to attend to examine the child until after he had suffered a cardiac arrest. The coroner called two witnesses—the pathologist and a court-appointed expert, Dr Shinebourne, who had been a consultant paediatric cardiologist but had had no experience in intensive care for over 15 years. When Dr Shinebourne’s lack of relevant experience came to light during questioning, the parents applied unsuccessfully to adjourn the inquest to instruct a suitably qualified expert witness. At the conclusion of the inquest, Thomas’ father challenged the adequacy of the inquiry and verdict that his son had died of natural causes. Parker J found the refusal to adjourn to be a material procedural irregularity, quashed the verdict and ordered a fresh inquest. 31. It is well established that this Court on judicial review would interfere with the decision of a coroner on a matter such as an adjournment only if the decision was wrong in principle or was a decision that had no reasonable basis in the circumstances that had arisen. Successful challenges to such decisions are thus rare.

The present case, the Court found, was unusual due to the serious questions about the level of hospital care; the sole instructed expert had insufficient experience in a key area of concern and thus was unable to assist the Court on the important question of causation; and in her ruling on an adjournment the coroner had inaccurately summarised Dr Shinebourne’s evidence about the appropriateness of the administration of fluids. 36. In my view, the foregoing combination of circumstances pointed to only one conclusion, namely that the inquest should be adjourned and evidence should be obtained from an expert with current experience in the intensive care of children who could also deal with all relevant questions as to (a) the likely extent to which Thomas’ fluid intake contributed to his cardiac arrest and (b) whether the intake of fluid materially affected the judgment about causation. In reaching her decision on adjournment, the deputy coroner made certain specific material errors (identified above). She also reached a conclusion which, on the balance of relevant factors, was not reasonably open and was at real risk of causing substantial injustice.

(iv) R (Chief Constable of Devon and Cornwall Police) v HM Coroner for Plymouth, Torbay and South Devon [2013] EWHC 1485 (Admin), [2013] Inquest LR 269 Keywords: Coroners, inquest hearing, police, suicide On the facts, the Court ruled that the coroner’s decision, in a part-heard inquest, to leave a particular question to the jury was unlawful and should be quashed. A head-on collision between a suicidal driver and a car travelling in the opposite direction caused four deaths: that of the driver himself, and in the other car a husband, son and an unborn child. The collision occurred shortly after a police car, alerted to the driver’s

66 Marina Wheeler QC

suicidal intentions, attempted to stop the vehicle. As the police car flashed its headlights and signalled to the driver to stop, he accelerated and the collision occurred. The impugned question 9 invited the jury to consider whether any defects in the ‘State organisations that day’ contributed to the death. The Court reviewed the evidence placed before the jury that the claimant had procedures for dealing with vulnerable persons but not suicide risk motorists in particular. However, it found ‘completely lacking’ any evidence to suggest that suicide risk motorists should be treated differently from other groups, or that procedures that the police had in place were inappropriate for dealing with suicide risks.38 20. … if something as complex as procedures for dealing with particular groups of vulnerable people are to be criticised, the criticism must in fairness be based on evidence and cannot be left to the well-intentioned but necessarily speculative and uninformed views of a jury in the absence of relevant evidence … 21. The interested parties took a preliminary point that permission should not be given because it is only in exceptional cases that the Court should intervene in inquests that are still proceedings: see R v HM Coroner for Wiltshire & Swindon, ex parte Craik [2004] EWHC 2653 (Admin). While the principle is not in doubt, I consider this to be an exceptional case for three main reasons. First, the expedited procedure that has been adopted means that the inquest can proceed to its conclusion with the existing jury, thereby avoiding the possibility that the parties might have to go through another inquest at a later date. Second, in the course of the rolled up hearing I have come to the clear conclusion that question 9 cannot lawfully be put and the issue having been raised, it is right that I should rule on it to prevent error in the further conduct of the inquest. Third, I am and remain concerned at the prospect that the jury would otherwise be asked to make findings that could have a substantial negative impact on PC Bickford in particular when, on the information available to me, he has had no proper opportunity to deal in evidence with criticisms that would inevitably arise if the jury were to answer question 9 affirmatively.

(v) R (Cooper) v HM Coroner for North East Kent [2014] EWHC 586 (Admin), [2014] Inquest LR 121 Keywords: Coroners, inquest hearing, judicial review The deceased was suffocated by earth having fallen into a trench which he was excavating. The contractor responsible for the excavation works challenged, during the course of the inquest, the coroner’s decision that she proposed to leave a conclusion of unlawful killing by gross negligence to the jury. The decision was given without reasons and was contrary to a previous decision on the same issue. Mitting J endorsed previous dicta counselling caution in entertaining challenges to interlocutory rulings of this kind, enumerated five disadvantages of so doing, and stated that ‘challenges of this kind should not in the ordinary case be entertained in the High Court’.39 However, he went on to ‘suggest’ to the coroner that she might offer the parties a provisional explanation for her change of mind and review her decision not to hear further submissions about possible verdicts. This would 38 R (Chief Constable of Devon and Cornwall Police) v HM Coroner for Plymouth, Torbay and South Devon [2013] EWHC 1485 (Admin), para 19. 39 R (Cooper) v HM Coroner for North East Kent [2014] EWHC 586 (Admin), paras 12–17.

The Coroner 67 enable counsel for the claimant, in the event of any identifiable error of law, to seek to persuade her to change her mind.40 For more on conclusions, see also Chapter 15.

D. Extraneous Comment by the Coroner (i) R (Farah) v HM Coroner for Southampton & New Forest District of Hampshire [2009] EWHC 1605 (Admin), [2009] Inquest LR 220 Keywords: Coroners, inquest hearing, judicial review Mr Bullaleh died after being struck by a taxi outside a nightclub. In addition to recording a narrative verdict of accidental death, the coroner delivered a judgment containing findings on matters not causally related to the death, derogatory comments about the deceased (also not causally related to the death) and criticisms of the legal team conducting the inquest. On an application for judicial review, Silber J considered each allegedly unlawful statement by reference to the statutory matters to be ascertained by the inquest, noting the requirement that the proceedings and evidence be directed solely to ascertaining those matters and further that the coroner and jury were specifically precluded (at the time by rule 36(2)) from expressing an opinion on any other matter.41 On this analysis, he found that comments about the deceased’s overfamiliarity with young women at the night club were well outside the stipulated issues and opinion evidence, and so unlawful. Similarly, the coroner’s suggestion that the deceased habitually made wrongful allegations of race discrimination was opinion unsupported by evidence, unconnected with the stipulated issues, and also unlawful. So too was the unjustified criticism of the claimant’s legal team. Granting declarations to give effect to these conclusions, Silber J summarised his approach: 47 (c) The Court has jurisdiction which should be sparingly exercised to declare comments made by a coroner as being unlawful. Such a declaration may be made if comments (i) do not relate to any of the stipulated issues in any way; (ii) are matters of opinion; and (iii) are sufficiently unfairly critical and offensive of any party.

Other Cases R (Homberg) v HM Coroner for East Sussex Western District (1994) 158 JP 357—despite a defective direction the Court would not order fresh inquest where the jury could not, on the evidence, reach a different verdict. R (Bentley) v HM Coroner for the District of Avon [2002] 166 JP 297, [2001] Inquest LR 205—the coroner should have complied with a request for advance disclosure or summary of witness statements. Whilst disclosure was not mandatory, on the facts fairness demanded it. 40 41

ibid paras 20–21. The relevant provisions are now contained CJA 2009, s 5.

68 Marina Wheeler QC

R (Cash) v HM Coroner for the County of Northamptonshire and Chief Constable of Northamptonshire Police [2007] EWHC 1354 (Admin), [2007] Inquest LR 147—in a case involving the use of restraint in police custody, the failure to leave to the jury a possible verdict of unlawful k illing and the absence of findings on the core factual issues raised, led the Court to quash the inquisition and order a fresh inquest before a different coroner. R (Ahmed) v HM Coroner for South and East Cumbria [2009] EWHC 1653 (Admin), [2009] Inquest LR 177—there is no hard and fast obligation on the part of the coroner to disclose any witness statements or material: it is a matter of the exercise of discretion. R (Butler) v HM Coroner for the Black Country District [2010] EWHC 43 (Admin), [2010] Inquest LR 50 —a successful challenge during an adjourned inquest to the coroner’s approach to determining the scope of the inquest, disclosure and whether to leave unlawful killing to the jury. The Court ordered the resumed inquest be heard before a different coroner. R (Hair) v HM Coroner for Stafford South [2010] EWHC 2580 (Admin), [2010] Inquest LR 197—the Court quashed the inquisition and ordered a new inquest due to the inadequacy of the investigation into a self-inflicted death in custody, where the deceased had been involved in an e scalation of adjudications prior to his death. Relevant witnesses had not been called and the coroner’s summing up failed to address the potential significance of available documentary evidence. R (Cairns) v HM Deputy Coroner for Inner West London [2011] EWHC 2890 (Admin), [2011] Inquest LR 121—the d ecision on which witnesses to call involves a two-limb test of relevance and expediency and can only be challenged if Wednesbury unreasonable. The Court held that the coroner had acted reasonably and, in any event, a fresh inquest should not be ordered unless a d ifferent verdict might be reached on important new evidence: Re Rapier [1988] QB 26, 36–39. R (Lagos) v HM Coroner for the City of London [2013] EWHC 423 (Admin), [2013] Inquest LR 34 —an illustration of principles relating to the exercise of discretion in relation to the scope of the inquest and the evidence to call. The challenge to the open verdict failed. R (Sreedharan) v HM Coroner for the County of Greater Manchester and others [2013] EWCA Civ 181 (CA), [2013] Inquest LR 42—the deceased’s GP, who had prescribed drugs which caused his death, challenged the scope of inquest and failure to leave a suicide verdict to the jury. The Court of Appeal held that the question whether to leave an issue to the jury was a matter of judgment with which an appellate court would rarely intervene. The coroner’s approach had been reasonable. R (Shafi) v HM Coroner for East London [2015] EWHC 2106 (Admin), [2015] Inquest LR 154—where the cause of the deceased’s death in custody in Dubai was unascertained, the coroner was wrong to admit written evidence from witnesses in Dubai without further inquiry as to whether live evidence could be obtained. A further investigation and inquest was ordered.

6 Pre-Inquest Reviews RICHARD MUMFORD

I. Overview The pre-inquest review (PIR) has become a common feature of the coronial process and, in complex or controversial cases, a vital one. Yet it was not until the coming into force of the Coroners and Justice Act 2009 (CJA 2009) on 25 July 2013 that there was any statutory basis for holding such a hearing, separate from the inquest itself. Nonetheless, the practice of holding these case management hearings was already firmly established before 2013, no doubt influenced in part by the emergence of similar types of hearing in both criminal and civil litigation and in particular the ‘cards on the table’ approach to the latter following the Woolf reforms in the late 1990s. The ever-increasing volume of documentation in all but the most straightforward inquests was also a driving force in the development of the PIR. This chapter will set out the basis and purpose of the PIR as well as relevant guidance regarding how they are to be conducted and what topics should typically be dealt with at such a hearing. It will also consider whether the PIR should be in public or private.

II. Legislation and Other Sources Coroners (Inquest) Rules 2013 (2013/1616) Rule 6: 6. Pre-inquest review hearing A coroner may at any time during the course of an investigation and before an inquest hearing hold a pre-inquest review hearing. … Rule 11: 11. Inquest hearings to be held in public (1) … (2) …

70 Richard Mumford (3) An inquest hearing and any pre-inquest hearing must be held in public unless paragraph (4) or (5) applies. (4) A coroner may direct that the public be excluded from an inquest hearing, or any part of an inquest hearing if the coroner considers it would be in the interests of national security to do so. (5) A coroner may direct that the public be excluded from a pre-inquest review hearing if the coroner considers it would be in the interests of justice or national security to do so. … Rule 26: 26. Recording inquest hearings A coroner must keep a recording of every inquest hearing, including any pre-inquest review hearing.

The Chief Coroner’s Guide to the Coroners and Justice Act 2009 Pre-inquest review hearing 108. New rule 6 formally recognises that pre-inquest review hearings (PIRs) are often held before the main inquest hearing. Where possible coroners should set out in advance of the hearing for all interested persons an agenda in writing and, where appropriate, invite written submissions to be considered at the hearing.1

Guidance —— Chief Coroner Guidance No 22, ‘Pre-Inquest Review Hearings’.2

III. Cases A. Purpose and Importance of the Pre-Inquest Review (i) R (Coker) v HM Coroner for South London [2006] EWHC 614 (Admin) Keywords: Article 2, judicial review, pre-inquest review hearing This case confirmed the power of a coroner to hold a pre-inquest hearing (before such power was give statutory basis by the 2009 Act). Such a hearing could be either in private or in public and could include the coroner referring to evidence that would be given in due course at the inquest before a jury. The claimant, who was the sister of the deceased, sought judicial review of a coroner’s decision to hold a pre-inquest hearing at which the coroner would make a statement 1 Published at www.judiciary.gov.uk/related-offices-and-bodies/office-chief-coroner/guidance-law-sheets/ coroners-guidance/. 2 www.judiciary.gov.uk/related-offices-and-bodies/office-chief-coroner/guidance-law-sheets/coronersguidance/.

Pre-Inquest Reviews 71

utlining the conclusions as to medical cause of death in the pathologist’s post-mortem. o The deceased had died in a police station and there had been speculation within the local area as to the possibility of a ‘cover-up’. The claimant objected to the public announcement of such evidence before the inquest on the ground that it would pre-empt or appear to pre-empt the role of the jury at the inquest. Her challenge was rejected. The court commented on the practice of holding pre-inquest hearings and its encouragement within the Department for Constitutional Affairs’ ‘Fundamental Review of Death Certification and Investigation’:3 17. In recent years, it has become common practice for Coroners to hold pre-inquest hearings in particular in complex cases, and to review procedural matters such as remit, what witnesses will be required, whether any further documentary evidence is required and so forth at such hearings. The proposals in the DCA’s briefing note are based on Chapter 9 of the Fundamental Review of Death Certification and Investigation which included the following under the heading of ‘Pre-Inquest Hearing’. … 20. In more complex cases, some coroners already hold pre-inquest hearings. Families and other participants can then raise issues about scope, evidence and disclosure and which witnesses are to be called, and the coroner can give decisions on them. Participants can also say whether they intend to be legally represented and if so at what level. In this way, surprises are avoided and key handling issues considered. 21. We recommend that for complex inquests or inquests where seriously contentious issues may arise, public pre-inquest hearings should always be considered. We would expect them to become the norm in cases of significant complexity.

(ii) R (Lin) v Secretary of State for Transport [2006] Inquest LR 161 Keywords: Article 2, judicial review, pre-inquest review hearing The parents of one of the seven individuals killed in the Potters Bar rail crash on 10 May 2002 challenged the decision of the Secretary of State not to hold a public inquiry. Moses LJ (sitting as a judge of the High Court) rejected the claimants’ submission that Article 2 required a public inquiry (as opposed to an inquest) to take place in the circumstances of this case. In doing so, Moses LJ considered the features of a Middleton-type inquest and their role in fulfilling the Article 2 investigative obligation. 30. Since Middleton, coroners are fully aware of the need to involve the next of kin by permitting full cross-examination even though that is not an essential element of such inquiries … They hold a preliminary hearing or hearings for inquest management purposes. There will frequently be advanced request for disclosure of documents and such disclosure will take place …

(iii) Shafi v HM Senior Coroner for East London [2015] EWHC 2106 (Admin) Keywords: Jurisdiction, jury, pre-inquest review hearing The applicant’s son died in custody at a police station in Dubai. At the end of the inquest (which had not been preceded by a PIR), the coroner recorded an open conclusion with the 3

Available at www.webarchive.nationalarchives.gov.uk/adv_search/.

72 Richard Mumford

medical cause of death described as ‘unascertained’. The applicant sought a fresh inquest on grounds of insufficiency of inquiry as well as on the basis that a jury should have been summoned and that there had been irregularity in admitting some written evidence from Dubai. In granting the application, the Divisional Court (Bean LJ and the Chief Coroner) commented on the failure to hold a pre-inquest review hearing in order to address some of the issues which eventually led to the ordering of a fresh inquest: 71. We cannot leave this case without observing that the good management of this case demanded a pre-inquest review hearing (PIRH) to be held. Under Rule 6 of the 2013 Rules a coroner may at any time hold a pre-inquest review during the course of an investigation and before an inquest hearing. One should have been held in this case. 72. The Rules do not prescribe the circumstances in which a PIRH should be held. But a PIRH should usually be held in any case of complexity or difficulty or which raises issues which are best determined openly and fully at a public hearing. Deaths in custody (except where the death is from natural causes and there is no other issue) will always require a PIRH. Deaths overseas are very likely to require one, especially where, as here, there were issues of obtaining evidence from witnesses overseas, disclosure, scope of the inquest, timing of the inquest and whether a jury should be summoned. 73. These were all issues that were best raised, considered and decided in a public PIRH. This was, after all, a case where the family had considerable (and understandable) concerns about the death. The applicant’s solicitors had asked for a PIRH on more than one occasion. There were, in our judgment, good reasons for holding one. 74. It is often better for important outstanding issues to be aired and resolved publicly before the inquest at a PIRH, with a written agenda in advance and brief written decisions afterwards. 75. In this case the issues of evidence and whether to summon a jury were not insignificant. From the family’s point of view there was much to discuss. Suspicions needed to be raised, if not allayed. A hearing would have been better than correspondence. 76. A PIRH would also have given the coroner the opportunity to consider whether it might have been wise in all the circumstances to accede to the family’s request and make one last formal attempt to obtain the CCTV footage. 77. In the end the inquest commenced with submissions from Mr Lofthouse on the outstanding issues, rather in the form of a PIRH but somewhat late in the day. It seems to us that this aspect of the hearing, taking up (at least in transcript pages) about one third of the hearing, was something of a distraction from the inquest itself. A separate PIRH would have been better. 78. We do not conclude that the failure to hold a PIRH was in itself an irregularity of proceedings but we are of the firm view that one should have been held well in advance of the inquest.

(iv) R (Fullick) v HM Senior Coroner for Inner North London and Others [2015] EWHC 3522 (Admin) Keywords: Judicial review, jury, pre-inquest review hearing A 47 year old woman was taken ill at Hornsey police station in London, which she had voluntarily attended as a witness; she did not recover and died in hospital eight days later. The senior coroner rejected the arguments of the claimant (the deceased’s daughter) that the inquest should be held before a jury either pursuant to the mandatory provisions of

Pre-Inquest Reviews 73

section 7(2)(b) concerning deaths arising from an act or omission of a police officer in the purported execution of his or her duty or, alternatively, pursuant to the discretionary provision at section 7(3). The Divisional Court (comprising McCombe LJ and HHJ Peter Thornton QC, the Chief Coroner) allowed the claim for judicial review and quashed the decision not to hold the inquest with a jury. The Court held that the mandatory provisions of section 7(2)(a) were satisfied and indicated that, even if they had not been, the claim would have succeeded under 7(3) in any event. The court commented on the usefulness of a PIRH as follows: 46. Good case management in more complex or difficult cases will usually require that matters of importance such as whether a jury is required should be aired and decided at a pre-inquest review hearing, particularly where the issue may be contentious. Rule 6 of the Coroners (Inquests) Rules 2013 provides that a coroner may at any time during the course of an investigation and before an inquest hearing hold a pre-inquest hearing. Such a hearing provides the coroner with the opportunity to list matters of importance for discussion in open court and, where necessary, for ruling with brief written reasons: for the appropriate procedure for pre-inquest review hearings see Brown v HM Coroner for the County of Norfolk [2014] EWHC 187 (Admin) at [38]–[44]. Sometimes, particularly where from the family’s point of view here is much to discuss, a public hearing may be better than correspondence.

B. Agenda for a Pre-Inquest Review and how it should be Conducted (i) Brown v HM Coroner for the County of Norfolk and Another [2014] EWHC 187 (Admin) Keywords: Judicial review, pre-inquest review hearing The claimant was the step-father of a woman who had died in circumstances which were not fully explained and whose death had been subject to a police investigation which was inadequate (as was common ground between the parties to the judicial review, including the Chief Constable of Norfolk Constabulary). The court granted the application for a fresh inquest to be held, on the ground that the original inquest had proceeded on a mistaken factual premise, namely that although the precise cause of death could not be ascertained, the self-ingestion of insulin and alcohol may well have been the cause. However, the court rejected the claimant’s submissions that there had been dishonesty or collusion between the coroner and the police in relation to the original inquest, founded in part on the claimant having been excluded from part of a discussion between the coroner and the police on the day of the PIR. HHJ Peter Thornton QC (the Chief Coroner), sitting with Pitchford LJ in the Administrative Court, gave guidance on the purpose and conduct of the PIR. 38. The status of the pre-inquest review is now enshrined in rule 6 of the Coroners (Inquests) Rules 2013 (in force from 25 July 2013 for investigations started before and since). Rule 6 permits the coroner to hold a pre-inquest review hearing ‘at any time during the course of an investigation and before an inquest’. Rule 26 of the 2013 Rules requires a coroner to make and keep a recording of a pre-inquest review hearing. This requirement means that a coroner conducting such a hearing should take reasonable steps to ensure that the recording equipment is working well and that those who speak in court do so in such a way that the recording can be transcribed with accuracy and in full. An incomplete transcript is not helpful. It may open the door (as in this case) to allegations of tampering and deliberate and fraudulent removal of key questions and answers.

74 Richard Mumford 39. A pre-inquest review hearing, where held, is an important stage towards the final hearing. In each case the coroner should ensure that all interested persons, particularly bereaved families, have sufficient notice of the matters to be discussed at the pre-inquest review hearing. The claimant asserted in this case that he had no notice of what was going to be discussed at the hearing and was therefore unprepared when asked which witnesses should attend to give evidence and whether he accepted that the cause of death could not be established. Coroners should therefore provide a written agenda in advance and, if appropriate, express provisional views so that agreement or opposition can be expressed. 40. The agenda which should be tailored to the individual case should include, amongst other things, and particularly in the more complex or difficult cases, a list of interested persons, a proposed list of witnesses identifying those who may be called and those whose statements may be read, the issues to be considered at the inquest, the scope of the evidence, whether a jury will be required, whether Article 2 of the European Convention on Human Rights is engaged, any issues of disclosure, the date of the final hearing, and any other relevant matters. In a complex or difficult investigation interested persons should be invited to respond to the coroner’s agenda in advance of the pre-inquest review hearing in writing, stating what they agree with and what they do not agree with. 41. The coroner should also ensure that interested persons, particularly those unrepresented, have sufficient disclosure of relevant statements and documents before the pre-inquest review hearing so as to be able to address the agenda on an informed basis. The claimant asserted in this case, as the coroner’s note of the hearing states, that ‘he had not received copies of the post mortem and toxicology reports’. If correct, that would have placed him at a considerable disadvantage for the pre-inquest review hearing. 42. The claimant’s view of the pre-inquest review hearing was that the coroner had made up his mind what the outcome of the inquest would be. Coroners should avoid giving the impression at a pre-inquest review hearing (and in any documentation supplied before it) that the findings and conclusions of the inquest are in any way pre-determined, even when the evidence points substantially in one direction. It may be necessary to explain in clear language to unrepresented families that there is a difference between seeking to identify the key issues and coming to a final conclusion. 43. Another complaint by the claimant was that on the day of the pre-inquest review hearing and shortly before the hearing, he and his wife saw two key police witnesses in a private room with the coroner discussing the case (as confirmed by one of the two witnesses, DS Clabon, during the subsequent investigation of the claimant’s allegations against the police). Coroners should at all times take care in their dealings with interested persons not to give the impression of bias or favouritism. Coroners may need to communicate to police officers investigating on their behalf, but their communications, whether oral or written, should be made in such a way that they will not, as Lord Justice Pitchford expressed it, engender concern to others that their interests were being treated as secondary. 44. A coroner should therefore be careful in correspondence with an interested person, such as the police, not to appear to be too familiar or close to the correspondent and not encourage the same from the correspondent, even though the coroner may know the correspondent well in the course of coroner work. This was one of the claimant’s complaints. Even the use of first names may not look good to an outsider, particularly to somebody of the older generation. Coroners should only write letters (and emails) in the course of their work which will stand the test of looking fair and unbiased if and when read out in court in litigation. 45. These remarks are not intended to express a view one way or the other on the merit of some of the claimant’s individual complaints, but are made in the hope that repeated good practice will

Pre-Inquest Reviews 75 avoid or at least reduce the number of complaints which may be levelled at coroners in the future, particularly about pre-inquest review hearings.

C. Pre-Inquest Review to be Held in Public or Private (i) R (Coker) v HM Coroner for South London [2006] EWHC 614 (Admin) Keywords: Article 2, judicial review, pre-inquest review hearing See above for factual background. The PIR should be held in public unless there are cogent reasons for not doing so. 18. If it is within the Coroner’s power to regulate the proceedings to be adopted to hold a preinquest hearing, it is difficult to see why such a hearing should be in private and not in public. Although Mr Cragg submitted that what the defendant proposed to do would be incompatible with Article 2 of the European Convention on Human Rights, that was upon the basis that the defendant’s statement would effectively usurp the jury’s function and would therefore prevent an ‘effective’ official investigation into Mr Coker’s death, see R(Amin) v Secretary of State for the Home Department [2004] 1 A.C. 653, in paragraph 20(6) of Lord Bingham’s speech and, R(D) v Secretary of State for Home Department [2006] EWCA Civ. 143, in which the Master of the Rolls said in paragraph 9 that: ‘The investigation must be effective in the sense that it must be conducted in a manner that does not undermine its ability to establish the relevant facts.’ 19. If the defendant’s proposed statement would effectively usurp the jury’s function, it would be unlawful at common law because the discretion would not be being exercised with a view to achieving a ‘full, fair and thorough inquiry’ (see ex parte Hay). In this respect, Article 2 adds nothing to the claimant’s case if, as I have concluded above, the defendant’s statement will not undermine the jury’s ability at the inquest to establish all the relevant facts. However, Article 2 does support the proposition that pre-inquest hearings should be held in public unless there are cogent reasons in any particular case for holding them in private, (see paragraph 9(e) of the Master of the Rolls’ judgment in D above).

(ii) R (Secretary of State for the Home Department) v Assistant Deputy Coroner for Inner West London (the 7/7 Bombings Inquests) [2010] EWHC 3098 (Admin), [2011] 1 WLR 2564 Keywords: Article 2, judicial review, pre-inquest review hearing This was an application for judicial review arising in the context of the inquests into the deaths of 52 members of the public killed in the terrorist attacks in London of 7 July 2005. The coroner had refused to hold a closed hearing (ie a hearing from which interested persons and their representatives may be excluded) of part of the inquest in relation to alleged failings of the security services and the police. This ruling was challenged by the Home Secretary. The Divisional Court upheld the coroner’s refusal to hold closed hearings. Whilst under rule 17 of the Coroners Rules 1984, ‘the public’ could be excluded if it was in the interests of national security, properly construed ‘the public’ did not include properly interested persons and their legal representatives. Kay LJ gave the main judgment dismissing the

76 Richard Mumford

application on the basis that the interpretation of rule 17 for which the Home S ecretary contended (ie that the words ‘the public’ could include interested persons and their legal representatives) was incompatible with the rights of interested persons in respect of examination of witnesses and inspection of documents conferred by the 1988 Act. Stanley Burton LJ gave a short concurring judgment (quoted below), succinctly summarising the reasons for the interpretation of ‘the public’ as not including interested persons and their representatives. There is no apparent reason why the same interpretation of the words ‘the public’ should not apply in the context of rule 11 of the 2013 Rules. 36. Rule 17, in its first sentence, recognises the fundamental principle of our legal proceedings, namely that they should be public unless there is good reason for them not to be. Quite apart from this, however, in the first part of Rule 17 the natural meaning of ‘public’ is persons other than properly interested persons. There is no reason to ascribe any other meaning to ‘public’ in the proviso. Consideration of the other Rules to which Maurice Kay LJ has referred, such as Rule 20, confirm that this is indeed the meaning of ‘public’, for the reasons he gave and which were also given by the Coroner. 37. Like Maurice Kay LJ, I consider that specific and clear words would have been required to qualify the rights of properly interested persons under, for example, Rule 20, in order to achieve what is sought by the Claimant. 38. Furthermore, the Claimant’s contention is that the Coroner may choose which properly interested persons may be present during closed sessions. Some may be excluded, others, such as the representatives of those organisations, may be allowed to be present. There is no trace in the Rules of any such power, and no indication as to the basis on which it would be exercised. It involves rewriting Rule 17. It would put the Coroner in the invidious position of having to say that she trusts certain parties but not others. It may be that she would have to rely on the views of the Security Service as to the trustworthiness of properly interested persons: an undesirable situation where it is the Security Service which is itself a properly interested person because of the investigation into its responsibility. 39. Lastly, the contention that the Coroner has an implied power to hold secret sessions when she considers that it would be in the interests of national security to do so is hopeless. Rule 17 prescribes the power of the Coroner in such circumstances. Where there is express provision there cannot be an implied provision applicable in the same circumstances.

7 Article 2 Inquests PETER SKELTON QC, CAROLINE CROSS AND KATE BEATTIE

I. Overview Article 2 of the European Convention of Human Rights (Article 2) protects the right to life. States are required to take steps to protect this right, either through commission or omission. Where there is a (suspected) breach of the state’s obligations that causes death, an ‘Article 2 inquest’ is required. The Convention has been described as a ‘living instrument’,1 and this is particularly the case with Article 2. As Lord Kerr stated in R (Keyu) v Secretary of State for Foreign and Commonwealth Affairs, ‘Convention rights do not generally lend themselves to the application of inflexibly prescriptive rules. This is especially true of article 2 rights’.2 However, the application of Article 2 can be difficult. As Baroness Hale said in Rabone v Pennine Care NHS Trust,3 the ‘broad statements’ of principle made by the Strasbourg Court are ‘hard to interpret and even harder to apply’. Article 2 is often divided into three broad obligations: 1. The positive obligation—the duty to take appropriate steps to protect life. This is broken down further into two components: (1) the general or systemic duty; and (2) the operational duty; 2. The negative obligation—the prohibition of intentional and unlawful taking of life by state agents. This is also broken down into (1) the general or systemic duty; and (2) the operational duty; 3. The procedural obligation—the duty to investigate potential violations of the negative or positive obligations. Each of these obligations is dealt with in the cases below. There are some cases where the application of Article 2 is clear-cut. However, many cases are borderline: it is in this nebulous area where the case law has been expanding rapidly over recent years.

1

See, eg, the cases cited by Baroness Hale in In re McCaughey [2011] UKSC 20, para 90. R (Keyu) v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69, [2015] 3 WLR 1665, para 209. 3 Rabone v Pennine Care NHS Trust [2012] UKSC 2, [2013] 2 AC 76, para 97. 2

78 Peter Skelton QC, Caroline Cross and Kate Beattie

II. Legislation and Other Sources Human Rights Act 1998 6. Acts of public authorities (1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right. … 7. Proceedings (1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may— (a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or (b) rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act. … 22. Short title, commencement, application and extent … (4) Paragraph (b) of subsection (1) of section 7 applies to proceedings brought by or at the instigation of a public authority whenever the act in question took place; but otherwise that subsection does not apply to an act taking place before the coming into force of that section.

HRA 1998, Schedule 1, Part 1: The European Convention on Human Rights Article 2 1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.

Coroners and Justice Act 2009 5. Matters to be ascertained (1) The purpose of an investigation under this Part into a person’s death is to ascertain— (a) who the deceased was;

Article 2 Inquests 79 (b) how, when and where the deceased came by his or her death; (c) the particulars (if any) required by the 1953 Act to be registered concerning the death. (2) Where necessary in order to avoid a breach of any Convention rights (within the meaning of the Human Rights Act 1998 (c. 42)), the purpose mentioned in subsection (1)(b) is to be read as including the purpose of ascertaining in what circumstances the deceased came by his or her death. (3) Neither the senior coroner conducting an investigation under this Part into a person’s death nor the jury (if there is one) may express any opinion on any matter other than— (a) the questions mentioned in subsection (1)(a) and (b) (read with subsection (2) where applicable); (b) the particulars mentioned in subsection (1)(c). This is subject to paragraph 7 of Schedule 5 [Coroner’s power to take action to prevent other deaths].4

Guidance See the Chief Coroner’s Guidance No 17 on Conclusions5 in relation to Article 2 inquests. See also the Chief Coroner’s Guidance No 22 on Pre-Inquest Review Hearings, which at paragraph 7 advises coroners that the issues to consider at such a hearing will often include whether Article 2 is engaged. Specific guidance on the application of Article 2 is anticipated but has yet to be published.

III. Cases A. The Positive Obligation Under Article 2 (1) The General/Systemic Duty The general/systemic duty (also called the substantive duty) is a generic term for measures taken by a state to protect life. As stated by Lord Bingham in R (Middleton) v West Somerset Coroner:6 The European Court of Human Rights has repeatedly interpreted article 2 of the European Convention as imposing on member states substantive obligations not to take life without justification and also to establish a framework of laws, precautions, procedures and means of enforcement which will, to the greatest extent reasonably practicable, protect life.

The state must put in place ‘a legislative and administrative framework designed to provide effective deterrence against threats to the right to life’.7 This framework includes laws and regulations,8 as well as effective systems of work and administration aimed at protecting life. 4

See Chapter 25 on PFD reports. January 2015, from para 45. Available at www.judiciary.gov.uk/wp-content/uploads/2013/10/guidanceno17-conclusions.pdf (3 March 2015). 6 R (Middleton) v West Somerset Coroner [2004] 2 AC 182, para 2. See further later in this chapter. 7 Osman v United Kingdom (2000) 29 EHRR 245, para 115; Öneryildiz v Turkey (2005) 41 EHRR 20, para 89; Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2, para 12. 8 cf Nachova v Bulgaria (2006) 42 EHRR 43, para 93. 5 30

80 Peter Skelton QC, Caroline Cross and Kate Beattie

The state must also have appropriate measures in place to prevent risks to health or wellbeing, and in particular to persons who are known to be at risk, for example those who are in detention, conscripts or in environmentally hazardous situations.9 However, where the activities are dangerous, the risk cannot be ruled out completely; consequently, there must be sufficient regulation and control to reduce the risk to the minimum level that is reasonably possible.10 The framework of procedures and enforcement mechanisms must also include preventative measures after death, such as ‘means of civil redress and criminal prosecution’ where appropriate.11 There must also be a competent legal system to enforce the right to life.12

(i) Osman v United Kingdom (2000) 29 EHRR 245, 5 BHRC 293, [2000] Inquest LR 101 Keywords: Article 2, police In this leading case, the European Court of Human Rights (ECtHR) set out the general positive obligations under Article 2, as well as setting a high threshold for establishing a breach of the state’s operational duties. A teacher, Paul Paget-Lewis, waged a campaign of harassment, vandalism and victimisation against his former pupil Ahmet Osman and Ahmet’s family. On 7 March 1988 he shot and wounded Ahmet and shot dead his father, Ali Osman. The Osman family brought a negligence claim against the police on the basis that a duty of care was owed by the police to Ali and Ahmet Osman. The police had received numerous complaints regarding Paget-Lewis’ disturbing behaviour in the months prior to the shooting; however, notwithstanding the clear warning signs, the police had failed to appreciate the serious risk he posed to the Osman family. The police sought to strike out the case as showing no reasonable cause of action. While the police lost at first instance, the Court of Appeal struck out the case as demonstrating no cause of action, and refused leave to appeal. The applicants applied to the ECtHR, alleging (amongst others) a breach of Article 2 because the police had failed to protect the lives of Ali and Ahmet Osman. The ECtHR found no violation of Article 2 because there was no breach of the operational duty (see next section). However, the Court did outline the general obligations under Article 2 that a state is expected to uphold: 115. The Court notes that the first sentence of Article 2(1) enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction. It is common ground that the State’s obligation in this respect extends beyond its primary duty to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions. It is 9 cf R (Amin) v Secretary of State for the Home Department [2003] UKHL 51, para 21; Savage v South Essex Partnership NHS Foundation Trust [2008] UKHL 74, para 36; Öneryildiz (n 7) para 89. 10 Stoyanovi v Bulgaria App no 42980/04 (ECtHR, 9 November 2010), approved in Smith v Ministry of Defence [2014] 1 AC 52 (the Susan Smith case). See further later in this chapter and Chapter 23 on military personnel and civilians in war. 11 R (Smith) v Oxfordshire Assistant Deputy Coroner [2010] UKSC 29 (the ‘Catherine Smith’ case), para 203. See further later in this chapter. 12 Öneryildiz (n 7) para 94.

Article 2 Inquests 81 thus accepted by those appearing before the Court that Article 2 of the Convention may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual. The scope of this obligation is a matter of dispute between the parties.

(ii) Öneryildiz v Turkey (2005) 41 EHRR 20, 18 BHRC 145, [2004] Inquest LR 108 Keywords: Article 2, human rights, local authorities In Öneryildiz, the ECtHR emphasised that the positive, general obligations under Article 2 required a legislative and an administrative framework aimed at deterring threats to the right to life, especially in relation to dangerous activities. The applicant and his family lived in a slum near a municipal rubbish tip in Istanbul. In 1993 a methane explosion caused a landslide that killed 39 people, including the applicant’s relatives, and destroyed 10 homes. In 1991, almost two years prior to the explosion, the authorities had been warned of the life-threatening risks posed by the tip; however, even though the operation of household refuse tips and slum areas were subject to regulations, the authorities did not enforce them. Immediately following the accident, a committee of experts was commissioned to investigate who was responsible for the explosion. Their report concluded that the federal and local authorities were predominantly to blame. Two officials were prosecuted and found guilty of negligence in the exercise of their duties. Their prison sentences were commuted to fines. In September 1993 the applicant sued four local and federal authorities, seeking compensation for the loss of his relatives and home. A court gave judgment in his favour, although it awarded minimal compensation. The compensation was not paid. The Grand Chamber unanimously held that there had been a breach of the substantive aspect of Article 2, and by 16 votes to 1 that there had been a breach of its procedural aspect: 70. In the instant case the complaint before the Court is that the national authorities did not do all that could have been expected of them to prevent the deaths of the applicant’s close relatives in the accident of April 28, 1993 at the Ümraniye municipal rubbish tip, which was operated under the authorities’ control. 71. In this connection, the Court reiterates that Art.2 does not solely concern deaths resulting from the use of force by agents of the state but also, in the first sentence of its first paragraph, lays down a positive obligation on states to take appropriate steps to safeguard the lives of those within their jurisdiction. The Court considers that this obligation must be construed as applying in the context of any activity, whether public or not, in which the right to life may be at stake, and a fortiori in the case of industrial activities, which by their very nature are dangerous, such as the operation of wastecollection sites (‘dangerous activities’). … 89. The positive obligation to take all appropriate steps to safeguard life for the purposes of Art.2 entails above all a primary duty on the state to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life.

82 Peter Skelton QC, Caroline Cross and Kate Beattie 90. This obligation indisputably applies in the particular context of dangerous activities, where, in addition, special emphasis must be placed on regulations geared to the special features of the activity in question, particularly with regard to the level of the potential risk to human lives. They must govern the licensing, setting up, operation, security and supervision of the activity and must make it compulsory for all those concerned to take practical measures to ensure the effective protection of citizens whose lives might be endangered by the inherent risks. Among these preventive measures, particular emphasis should be placed on the public’s right to information …

The ECtHR also commented upon the features of a competent judicial system that enforces the right to life: 94. To sum up, the judicial system required by Art.2 must make provision for an independent and impartial official investigation procedure that satisfies certain minimum standards as to effectiveness and is capable of ensuring that criminal penalties are applied where lives are lost as a result of a dangerous activity if and to the extent that this is justified by the findings of the investigation. In such cases, the competent authorities must act with exemplary diligence and promptness and must of their own motion initiate investigations capable of, first, ascertaining the circumstances in which the incident took place and any shortcomings in the operation of the regulatory system and, secondly, identifying the state officials or authorities involved in whatever capacity in the chain of events in issue.

The ECtHR concluded that the regulatory regime was defective because it allowed the rubbish tip to operate even though it did not conform to the necessary technical standards. Furthermore, the authorities had failed to take the necessary steps to protect the residents from the risks of living near the tip.13 As to the procedural aspect of Article 2, the domestic courts had failed to hold the authorities to account and had not effectively implemented the domestic provisions guaranteeing the right to life. This undermined the deterrent effect of the criminal law.14

(iii) Nachova v Bulgaria (2006) 42 EHRR 43, 19 BHRC 1 Keywords: Article 2, military personnel Two Bulgarian military conscripts of Roma origin were imprisoned for repeated absences without leave. They escaped; however, following a tip-off, military police tracked them down. As they attempted to flee they were both fatally shot by the commanding officer. A criminal investigation into the deaths exonerated the officer and held he had acted in accordance with domestic regulations. The relatives of the deceased complained their Article 2 rights had been breached. The ECtHR emphasised the fundamental nature of the right to life, and noted: 96. … Art.2 implies a primary duty on the state to secure the right to life by putting in place an appropriate legal and administrative framework defining the limited circumstances in which law enforcement officials may use force and firearms, in the light of the relevant international standards …

13 14

ibid paras 109–10. ibid paras 117–18.

Article 2 Inquests 83 97. Furthermore, the national law regulating policing operations must secure a system of adequate and effective safeguards against arbitrariness and abuse of force and even against avoidable accident…

The ECtHR unanimously found that the state had breached the substantive obligations under Article 2. The domestic regulations, which permitted the use of lethal force against military personnel even for minor offences, were fundamentally flawed. 100. Such a legal framework is fundamentally deficient and falls well short of the level of protection ‘by law’ of the right to life that is required by the Convention in present-day democratic societies in Europe. … 102. The Court thus finds that there was a general failure by the respondent state to comply with its obligation under Art.2 of the Convention to secure the right to life by putting in place an appropriate legal and administrative framework on the use of force and firearms by military police.

The ECtHR also held that the planning and control of the operation ‘betrayed a deplorable disregard for the pre-eminence of the right to life’.15

(iv) Mitchell v Glasgow City Council [2009] UKHL 11, [2009] 1 AC 874 Keywords: Article 2, local authorities Mitchell and Drummond were neighbours and secure tenants of the defendant local authority. After years of anti-social behaviour and threats to kill Mitchell, Drummond was summoned to a meeting with the local authority and informed he would be evicted if his behaviour continued. Within an hour of the meeting, Drummond fatally attacked Mitchell. Mitchell’s family alleged that the local authority, in failing to inform them that the meeting with Drummond was taking place, had been negligent and breached Mitchell’s Article 2 rights. The case made its way to the House of Lords, who dismissed it on both grounds. As to the Article 2 claim, they held that the local authority owed no duty to Mitchell because, as his landlord only, they had not assumed responsibility for him. Further, even if they had been aware of a real and immediate risk to his life (which the Court found they were not), they were under no obligation to protect him: that was the role of the police. With regard to the general duties under Article 2, Lord Rodger held: 66. … where a state has assumed responsibility for an individual, whether by taking him into custody, by imprisoning him, detaining him under mental health legislation, or conscripting him into the armed forces, the state assumes responsibility for that individual’s safety. So in these circumstances police authorities, prison authorities, health authorities and the armed forces are all subject to positive obligations to protect the lives of those in their care. The authorities must therefore take general measures to employ and train competent staff and to adopt appropriate systems of work that will protect the lives of the people for whose welfare they have made themselves responsible. These are general obligations, not directed at any particular individual, but designed to protect all those in the authorities’ care. If, however, an authority fails to fulfil one of these obligations and someone in their care dies as a result, there will be a violation of his or her article 2 Convention rights. Authorities which are under these general obligations to persons in their care may also come

15

ibid para 105.

84 Peter Skelton QC, Caroline Cross and Kate Beattie under a distinct, additional, ‘operational’ obligation to take special preventive measures to protect a particular individual in their care. That operational obligation arises only where the authority knows, or ought to know, of a ‘real and immediate risk’ to the life of the particular individual. I refer generally to the discussion of these matters in the speeches in Savage v South Essex Partnership NHS Foundation Trust (MIND intervening) [2009] 1 AC 681.

(v) Smith v Ministry of Defence [2013] UKSC 41, [2014] AC 52, [2013] Inquest LR 135 (the ‘Susan Smith’ case) Keywords: Article 2, military personnel Privates Hewitt and Ellis were both killed in separate incidents in 2005–06 when improvised explosive devices (IEDs) exploded by their Snatch Landrovers. Their relatives brought Article 2 proceedings, known as the ‘Snatch Landrover claims’ against the Ministry of Defence (MoD) alleging that reasonable measures had not been taken in light of the real and immediate risk to life. In particular, they both alleged that the MoD had failed to provide appropriately armoured vehicles.16 In relation to the Article 2 claims, the MoD contended that they should be struck out as the deaths had occurred outside the jurisdiction of the European Convention of Human Rights (ECHR).17 Further, the MoD did not owe them a duty under Article 2.18 Following the Catherine Smith case19 Owen J struck out the Article 2 claims on the basis that they were not within the jurisdiction of the UK. The Court of Appeal upheld this decision, and so it came before the Supreme Court. After the ECtHR’s judgment in Al-Skeini,20 the Supreme Court allowed the appeal and refused to strike the claims out. It held that the ECHR’s jurisdiction extended to its armed forces when on active service abroad as the UK was exercising authority and control over them. Whether Article 2 applied to these specific instances would require an examination of the evidence, which required a factual investigation at trial. Lord Hope, giving the leading judgment, concluded: 55. … I would also hold that the jurisdiction of the United Kingdom under article 1 of the Convention extends to securing the protection of article 2 to members of the armed forces when they are serving outside its territory and that at the time of their deaths Pte Hewett and Pte Ellis were within the jurisdiction of the United Kingdom for the purposes of that article … The extent of that protection, and in particular whether the MOD was under a substantive duty of the kind for which the Snatch Land Rover claimants contend, is the question which must now be considered.

Having reviewed the case law, Lord Hope continued: 68. In para 88 of its judgment in Keenan v United Kingdom (2001) 33 EHRR 913, the court began by reciting the high level of duty of the state to put in place effective criminal law sanctions to deter the commission of offences against prisoners. But that was just part of what Lord Rodger described in para 30 of Savage as the tralatician jurisprudence of the court on positive obligations under article 2. The positive duties on the state operate at various levels, as one idea is handed down to another. 16

Smith v Ministry of Defence [2013] UKSC 41, [2014] AC 52, [2013] Inquest LR 135, paras 10 and 11. As per Art 1 ECHR. 18 Smith (n 16) para 13. 19 R (Smith) v Oxfordshire Assistant Deputy Coroner [2010] UKSC 29. See later in this chapter. 20 Al-Skeini v United Kingdom (2011) 53 EHRR 589. 17

Article 2 Inquests 85 There is a lower-level, but still general, duty on a state to take appropriate measures to secure the health and well-being of prisoners or people who are in some form of detention. This in its turn gives rise, at a still lower level, to two general obligations: Savage, para 36; Rabone v Pennine Care NHS Trust (INQUEST intervening) [2012] 2 AC 72, para 12, per Lord Dyson JSC; Öneryildiz v Turkey (2004) 41 EHRR 325, para 89. The first is a systemic duty, to put in place a legislative and administrative framework which will make for the effective prevention of the risk to their health and well-being or, as it was put in Öneryildiz, para 89, effective deterrence against threats to the right to life. Depending on the facts, this duty could extend to issues about training and the procurement of equipment before the forces are deployed on operations that will bring them into contact with the enemy. The second, which is also directly in point in this case, is to ensure that, where there is a real and immediate risk to life, preventative operational measures of whatever kind are adopted to safeguard the lives of those involved so far as this is practicable.

This case is discussed further in Chapter 22 regarding military personnel. Other Cases LCB v United Kingdom (1999) 27 EHRR 212, 4 BHRC 447—the applicant’s father had served on Christmas Island during the nuclear tests of 1957–58 and had been involved in the clean-up. The applicant was born in 1966 and was diagnosed with leukaemia in 1970. She alleged, amongst other complaints, that the state should have warned her parents of the causal link between her father’s exposure to dangerous levels of radiation and her leukaemia. The ECtHR held that there was insufficient evidence that her father had been dangerously irradiated. However, even if he had been, it had not been established that there was a causal link between his exposure to radiation and the applicant’s leukaemia. If, though, there had been information available to the authorities of a real risk to the applicant’s health from radiation exposure, they were under an obligation to warn her parents.21 R (AP) v HM Coroner for Worcestershire [2011] EWHC 1453 (Admin), [2011] Inquest LR 50—a young man with Asperger’s Syndrome was killed by a man who the deceased alleged had raped him. His grandparents complained that the council and police had breached his Article 2 rights by failing to have in place adequate systems for vulnerable people and by failing to take appropriate action when there was a real and immediate risk to his life when he received death threats. Hickinbottom J held that, though there were individual failings by the council and the police, neither were culpable of systemic failures or operational failures such as to amount to a substantive breach of Article 2. As such, the procedural obligations under Article 2 did not arise and consequently there were no grounds to resume the inquest. (2) The Operational Duty The operational duty was outlined in the Osman case, and is now known as the Osman test. In essence, the duty to protect arises where the state knows, or ought to know, of a real and immediate risk to life. This test has been repeated in numerous cases since Osman both by the domestic courts and the ECtHR.22 It can be engaged in respect of any activity, whether public or not, in which the right to life might be at stake.23 21

LCB v United Kingdom (1999) 27 EHRR 212, 4 BHRC 447, para 40. eg, In re Officer L and others [2007] UKHL 36; Savage (n 9); Van Colle and another v Chief Constable of the Hertfordshire Police [2008] UKHL 50; Rabone (n 3). 23 cf Öneryildiz (n 7); Watts v United Kingdom (2010) 51 EHRR SE5. 22 See,

86 Peter Skelton QC, Caroline Cross and Kate Beattie

The test, though, for proving a breach is very stringent and the threshold is exceptionally high.24 The risk must be ‘real’, in the sense of being objectively well-founded. It must also be ‘immediate’, which has been defined as ‘present and continuing’, substantial or significant, and not remote, fanciful or negligible.25 The ECtHR uses the standard of reasonableness: a state is under a duty to take reasonable measures to prevent the index risk materialising. However, the ECtHR gives the state a wide measure of discretion, as it takes into consideration the specific circumstances of the case, the unpredictability of human conduct, the ease or difficulty of taking precautions and the operational choices in terms of priorities and resources.26 However, the dividing line between the general systemic duty and the operational duty may not always be clear, especially where efforts are made to translate the systemic duty, which may be clear at a higher level of generality, to a lower level.27 (a) The Duty

(i) Osman v United Kingdom (2000) 29 EHRR 245, 5 BHRC 293, [2000] Inquest LR 101 For the facts see above. 116. For the Court, and bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. Another relevant consideration is the need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects the due process and other guarantees which legitimately place restraints on the scope of their action to investigate crime and bring offenders to justice, including the guarantees contained in Articles 5 and 8 of the Convention. In the opinion of the Court where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of their above-mentioned duty to prevent and suppress offences against the person, it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. The Court does not accept the Government’s view that the failure to perceive the risk to life in the circumstances known at the time or to take preventive measures to avoid that risk must be tantamount to gross negligence or wilful disregard of the duty to protect life. Such a rigid standard must be considered to be incompatible with the requirements of Article 1 of the Convention and the obligations of Contracting States under that Article to secure the practical and effective protection of the rights and freedoms laid down therein, including Article 2. For the Court, and having regard to the nature of the right protected by Article 2, a right fundamental in the scheme of the Convention, it is sufficient for an applicant to show that the authorities did not 24

Officer L (n 22) para 20; Savage (n 9) para 41; Mitchell (p 83) para 31. Rabone (n 3) paras 38–39. 26 Osman (n 7) para 116; Keenan v United Kingdom (2001) 33 EHRR 913, para 89. 27 R (L) v Justice Secretary [2009] 1 AC 588, para 88. 25

Article 2 Inquests 87 do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge. This is a question which can only be answered in the light of all the circumstances of any particular case.

(ii) Van Colle and Another v Chief Constable of the Hertfordshire Police [2008] UKHL 50, [2009] 1 AC 225, [2008] Inquest LR 176 Keywords: Article 2, police, human rights This case challenged the Osman test. The issue was whether the state was responsible under Article 2 for the police’s failure to take action against a person known to have threatened violence against a victim who then subsequently killed the victim. For a full summary of this case see Chapter 21 on police inquests. Giles Van Colle was shot dead by his former employee, Daniel Brougham. Brougham had been charged with theft from his employer, and Van Colle was due to give evidence against him. Brougham had been intimidating witnesses, including Van Colle, but he had not explicitly threatened his life. Brougham was convicted of Van Colle’s murder. Van Colle’s parents sought damages, alleging breaches of Articles 2 and 8 ECHR. They alleged that the police had failed in their duty of care towards prosecution witnesses. The case went to the House of Lords, where they eventually lost. Lord Bingham summarised the issue as follows: 1 … [I]f the police are alerted to a threat that D may kill or inflict violence on V, and the police take no action to prevent that occurrence, and D does kill or inflict violence on V, may V or his relatives obtain civil redress against the police, and if so, how and in what circumstances?

After outlining the facts he cited the Osman test, and stated: 30. The appellant chief constable, and the Secretary of State, relied on the ruling of my noble and learned friend, Lord Carswell, in In re Officer L [2007] 1 WLR 2135, para 20, that the test of real and immediate risk is one not easily satisfied, the threshold being high, and I would for my part accept that a court should not lightly find that a public authority has violated one of an individual’s fundamental rights or freedoms, thereby ruling, as such a finding necessarily does, that the United Kingdom has violated an important international convention. But I see force in the submission of Mr Owen for the Equality and Human Rights Commission, that the test formulated by the Strasbourg court in Osman and cited on many occasions since is clear and calls for no judicial exegesis. It is moreover clear that the Strasbourg court in Osman, para 116, roundly rejected the submission of Her Majesty’s Government that the failure to perceive the risk to life in the circumstances known at the time or to take preventative measures to avoid that risk must be tantamount to gross negligence or wilful disregard of the duty to protect life. Such a rigid standard would be incompatible with the obligation of member states to secure the practical and effective protection of the right laid down in article 2. That article protected a right fundamental in the scheme of the Convention and it was sufficient for an applicant to show that the authorities did not do all that could reasonably be expected of them to avoid a real and immediate risk to life of which they had or ought to have had knowledge. 31. It is plain from Osman and later cases that article 2 may be invoked where there has been a systemic failure by member states to enact laws or provide procedures reasonably needed to protect the right to life. But the article may also be invoked where, although there has been no systemic failure of that kind, a real and immediate risk to life is demonstrated and individual agents of the

88 Peter Skelton QC, Caroline Cross and Kate Beattie state have reprehensibly failed to exercise the powers available to them for the purpose of protecting life … 32. In its formulation of the ‘real and immediate risk’ test the Strasbourg court, in para 116 of its Osman judgment, laid emphasis on what the authorities knew or ought to have known ‘at the time’. This is a crucial part of the test, since where (as here) a tragic killing has occurred it is all too easy to interpret the events which preceded it in the light of that knowledge and not as they appeared at the time. In the present case the Court of Appeal expressly warned itself against the dangers of hindsight (in para 13 of their judgment) but I do not think that the judge, in the course of her lengthy judgment, did so. Mr Faulks, for the chief constable, was in my view right to submit that the court should endeavour to place itself in the chair of DC Ridley and assess events as they unfolded through his eyes. But the application of the test depends not only on what the authorities knew, but also on what they ought to have known. Thus stupidity, lack of imagination and inertia do not afford an excuse to a national authority which reasonably ought, in the light of what it knew or was told, to make further inquiries or investigations: it is then to be treated as knowing what such further inquiries or investigations would have elicited.

The Court also held that the Osman test was consistent and was not dependent on the person’s status or the circumstances of the case.28 The House of Lords held that there was insufficient evidence at the time to suspect there was a real and immediate risk to Van Colle’s life.29 Lord Bingham concluded that the Osman test was not met, especially as the warning signs had been far less apparent than in the Osman case.30

(iii) Mitchell v Glasgow City Council [2009] UKHL 11, [2009] 1 AC 874 For a summary of this case see Section III.A.(1)(iv) above. The House of Lords refused to find a local authority responsible for the killing of their tenant by his neighbour. Lord Rodger concluded: 69. … Mr Mitchell was a secure tenant of the local authority. And, of course, if the local authority had allowed their housing stock to fall into disrepair, so that tenants were at risk of suffering lifethreatening injuries or of becoming seriously ill, the local authority could have been in breach of article 2. But nothing like that is alleged here. What is said is that the local authority were under a positive duty to protect Mr Mitchell from a criminal attack by Drummond. The basis of the claim is that Mr Mitchell had this article 2 Convention right against the local authority simply because both he and Drummond were tenants of houses owned by the local authority. But, as a secure tenant, Mr Mitchell was not in the custody or control of the local authority. To judge by the pursuers’ averments, he was not ill or otherwise in need of care because of old age. He was not living in local authority sheltered accommodation or in a local authority retirement home: he was living in an ordinary house. The local authority had not deprived him of his freedom of movement or action or, in any other way, assumed responsibility for his safety. Like anyone else, Mr Mitchell was free to come and go as he pleased, and to act as a responsible adult. Indeed, as already mentioned, the whole policy behind the introduction of secure tenancies was to free public sector tenants from some of the controls to which they had previously been subjected and to emphasise their independence as individuals with rights over their own homes. I therefore see nothing in the relationship of landlord and secure tenant to give rise to any positive article 2 obligation on the part of the local authority to 28 See Van Colle and another v Chief Constable of the Hertfordshire Police [2008] UKHL 50, [2009] 1 AC 225, [2008] Inquest LR 176, paras 33–35. 29 See ibid paras 36–39. 30 See also ibid para 39.

Article 2 Inquests 89 protect Mr Mitchell’s life. The public authority with the positive duty to protect Mr Mitchell from criminal assaults by Drummond was Strathclyde Police, not the local authority. That position did not change just because the fatal assault occurred when, as landlords, the local authority took steps towards exercising their statutory power to recover possession of Drummond’s house. 70. Indeed, any other conclusion would have significant implications for local authorities and housing associations and similar organisations, with duties to provide houses for people who may well not be desirable tenants. These bodies might come under a duty to take appropriate general steps—whether in designing or modifying their housing stock, or else by setting up CCTV or other systems for gathering information about what was going on in their neighbourhood, or by instituting patrols—to prevent outbreaks of criminal violence among their tenants. As it is, local authorities and housing associations etc do not have, and are not meant to have, the resources, staff or powers to take effective steps to prevent such crimes. On the contrary, they are resourced on the basis that they are landlords operating within a society where the responsibility for preventing violent crime lies with the police, who, in their turn, are given the resources, training and powers to do the job. Costly duplication of the work of the police is neither necessary nor indeed desirable. 71. It follows that, even if the local authority officials had been aware of a real and immediate threat to Mr Mitchell’s life from Drummond, they would not have been under any article 2 obligation to prevent it. The averments of a breach of Mr Mitchell’s article 2 Convention rights by the local authority are accordingly irrelevant.

(iv) Watts v United Kingdom (2010) 51 EHRR SE5, [2011] Inquest LR 157 Keywords: Article 2, local authorities This case is an example of the very high threshold for proving a breach of Article 2. It also raised the issue as to whether Article 2 was engaged when local authorities sought to transfer elderly patients, potentially increasing the risk to their life. An elderly care home resident attempted to prevent the council from closing her care home. She alleged that her life would be at risk if she were transferred to another home as it would have a negative impact on her life expectancy. In outlining the general principles applicable, the ECtHR emphasised the requirement of a real and immediate risk to life for Article 2 to be engaged (paragraph 83). It held that there was no firm evidence of a decreased life expectancy provided there was a properly managed transfer. However, 88. … notwithstanding the uncertainty revealed in the medical literature, the Court is persuaded that a badly managed transfer of elderly residents of a care home could well have a negative impact on their life expectancy as a result of the general frailty and resistance to change of older people. Accordingly, the Court concludes that art.2 is applicable in the present case. The extent of any obligation to take specific measures, however, and in particular the proportionality of any measures called for by the applicant, must be assessed in light of the equivocal medical evidence as to the extent of any risk to life.

The ECtHR, though, held that the authorities had ‘met their positive obligations under article 2’.31 Considering the operational choices that the local authorities faced, the transfer had been carefully planned and the council had taken appropriate steps to minimise the risk to Mrs Watt’s life. They declared the complaint manifestly ill-founded.

31

Watts v United Kingdom (2010) 51 EHRR SE5, [2011] Inquest LR 157, para 92.

90 Peter Skelton QC, Caroline Cross and Kate Beattie

(b) The Threshold

(i) In re Officer L and Others [2007] UKHL 36, [2007] 1 WLR 2135, Inquest LR 214 Keywords: Article 2, police, inquiry, protective measures For a full summary of the facts see Chapter 21 on police inquests. This case arose out of an inquiry that was established to investigate the death of Robert Hamill, who died after being attacked in Portadown, Northern Ireland, in 1997. His family alleged that the assault had been sectarian, and that the Royal Ulster Constabulary police officers had failed to prevent it and had colluded with the attackers. The Chairman called numerous police officers to give evidence, and the officers applied for anonymity under Article 2 and the common law. Their application was refused, and the officers appealed. The case went to the House of Lords, which upheld the Chairman’s decision. Lord Carswell, who wrote the only judgment, cited the Osman test32 and considered the ‘real and immediate’ test under Article 2. He concluded that the test was not be easily satisfied: 20. Two matters have become clear in the subsequent development of the case law. First, this positive obligation arises only when the risk is ‘real and immediate’. The wording of this test has been the subject of some critical discussion, but its meaning has been aptly summarised in Northern Ireland by Weatherup J in In re W’s Application [2004] NIQB 67, at [17], where he said that ‘a real risk is one that is objectively verified and an immediate risk is one that is present and continuing’. It is in my opinion clear that the criterion is and should be one that is not readily satisfied: in other words, the threshold is high. There was a suggestion in para 28 of the judgment of the court in R (A) v Lord Saville of Newdigate [2002] 1 WLR 1249, 1261 (also known as the Widgery Soldiers case …) that a lower degree would engage article 2 when the risk is attendant upon some action that an authority is contemplating putting into effect itself … I do not think that this suggestion is wellfounded. In my opinion the standard is constant and not variable with the type of act in contemplation, and is not easily reached. Moreover, the requirement that the fear has to be real means that it must be objectively well-founded. … [I]n assessing the existence of a real and immediate risk for the purposes of article 2 the issue does not depend on the subjective concerns of the applicant, but on the reality of the existence of the risk.

(ii) W, Re An Application For Judicial Review [2004] NIQB 67 Keywords: Article 2, protective measures For a full summary of the facts please see Chapter 21 on police inquests. The applicant, who was in prison for manslaughter, judicially reviewed the Secretary of State for Northern Ireland’s refusal to provide her with security protection measures. She alleged that her Article 2 rights would be breached, as the police had assessed the threat level as ‘serious’, the second highest level. Weatherup J quashed the decision, and noted: 17. … The approach to Article 2 obligations is not based on an applicant reaching a threshold of risk set at different levels in different contexts, but rather about balancing the risk against reasonable measures to reduce the risk. The relevant risk must be real and immediate where a real risk is one that is objectively verified and an immediate risk is one that is present and continuing. 32

In re Officer L and others [2007] UKHL 36, [2007] 1 WLR 2135, Inquest LR 214, para 19.

Article 2 Inquests 91

(iii) Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2, [2012] 2 AC 72, [2012] Inquest LR 1 Keywords: Article 2, mental health, human rights This case assessed whether the state owed an operational duty to an informal patient, and considered the applicable threshold. It is further discussed below and in Chapter 18 regarding mental health. This claim was brought by the parents of a girl, Melanie Rabone, who had suffered from severe depression and had been informally admitted to the trust’s mental health unit. Contrary to medical advice she had been granted leave from the unit and had committed suicide. Her parents alleged the trust owed their daughter an operational duty under Article 2. The Supreme Court agreed, concluding that the trust ‘owed the operational duty to [Melanie] to take reasonable steps to protect her from the real and immediate risk of suicide’.33 In considering the threshold test of ‘real and immediate’ risk, Lord Dyson stated: 38. It seems to me that the courts below were clearly right to say that the risk of Melanie’s suicide was ‘real’ in this case. On the evidence of Dr Caplan, [the trust’s expert psychiatrist] it was a substantial or significant risk and not a remote or fanciful one … 39. … In In re Officer L [2007] 1 WLR 2135, para 20, Lord Carswell stated that an apt summary of the meaning of an ‘immediate’ risk is one that is ‘present and continuing’. In my view, one must guard against the dangers of using other words to explain the meaning of an ordinary word like ‘immediate’. But I think that the phrase ‘present and continuing’ captures the essence of its meaning. The idea is to focus on a risk which is present at the time of the alleged breach of duty and not a risk that will arise at some time in the future.

(iv) In the matter of an Application by Officers C, D, H and R [2012] NICA 47 Keywords: Article 2, police, protective measures Patrick Jordan was shot dead by a police officer in Belfast in 1992. At his inquest the coroner refused a number of anonymity applications from police officers who were called to give evidence. The officers judicially reviewed the coroner and the Northern Irish Court of Appeal quashed the coroner’s ruling. Lord Chief Justice Morgan, considering the Osman test, noted that it has a high threshold; however, given the unique context in Northern Ireland, the test is more likely to be satisfied by police officers at risk of attacks by terrorist organisations.34 For a full summary see Chapter 21 on police inquests.

(v) Savage v South Essex Partnership NHS Foundation Trust [2008] UKHL 74, [2009] 1 AC 681, [2008] Inquest LR 126 Keywords: Article 2, mental health, human rights This was the first House of Lords case to consider the operational duties under Article 2 owed by the state to a detained mental patient. 33 34

Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2, [2012] 2 AC 72, [2012] Inquest LR 1, para 34. In the matter of an application by Officers C, D, H and R [2012] NICA 47, paras 26 and 27.

92 Peter Skelton QC, Caroline Cross and Kate Beattie

The claimant’s mother suffered from mental illness and at the time of her death had been compulsorily detained. She managed to abscond and committed suicide. The claimant alleged that the defendant trust had breached her mother’s right to life under Article 2. The House of Lords held for the claimant, concluding that the trust was under a duty to comply with the general and operational duties under Article 2. In considering the threshold for the Osman test, Lord Rodger stated: 41. The operational duty itself is not particularly stringent. But this House has been at pains to stress that the threshold (real and immediate risk to life) for triggering the duty is high: In re Officer L [2007] 1 WLR 2135, 2143 h, para 20, per Lord Carswell. In Van Colle v Chief Constable of the H ertfordshire Police (Secretary of State for the Home Department intervening) [2009] 1 AC 225, the House endorsed Lord Carswell’s approach, Lord Hope of Craighead commenting, at p 617 h, para 66, that he read ‘his words as amounting to no more than a comment on the nature of the test which the Strasbourg court has laid down, not as a qualification or a gloss upon it’.

This case is considered further in Chapter 18 on mental health.

(vi) R (Kent County Council) v HM Coroner for Kent (North-West District) [2012] EWHC 2768 (Admin), [2012] Inquest LR 110 Keywords: Article 2, local authorities This decision sets a high threshold for persons seeking an Article 2 inquest involving local authorities. A teenager died from an accidental drugs overdose. In the months prior to his death his parents and school had raised serious concerns regarding his behaviour with the claimant’s social services department (SSD). He was assessed by the SSD as a child at considerable risk, but no intervention was taken. A serious case review after his death found that his death could have been prevented. At a pre-inquest review his family successfully argued that Article 2 was engaged, and the claimant council judicially reviewed the decision. The Court, which included the Chief Coroner, quashed the coroner’s decision. The claimant had neither a general duty nor an operational duty towards the deceased. However, in terms of the threshold they first emphasised the stringent nature of the test: 43. It is of importance to remember that, in the context of the operational duty, it has been said that the test of ‘real and immediate risk to life’ is ‘a stringent one’ (per Lord Brown of Eaton-underHeywood in Van Colle v Chief Constable of the Hertfordshire Police [2009] 1 AC 225, para.115), ‘with a very high threshold’ (per Lord Hope of Craighead at para.69) and that it provides a ‘high hurdle’ (per Lord Carswell in Re Officer L [2007] 1 WLR 2135). The stringent nature of the test is demonstrated by the circumstances of Van Colle: no breach was found in the situation where a defendant about to be tried for theft murdered the chief prosecution witness despite the police having been aware of a series of threats and intimidation by the defendant towards him.

Other Cases Officer L at paragraph 20—see above. Van Colle at paragraph 32—see above.

Article 2 Inquests 93

Bubbins v UK (2005) 41 EHRR 24—a man was shot dead in his home by armed police following a siege. The weapon that he had pointed at police on several occasions, including the time he was shot, turned out to be a replica. The ECtHR held that there had been no breach of the substantive or procedural obligations under Article 2. The force had not been disproportionate and the planning and organisation of the operation had not been flawed. R (L (A Patient)) v Secretary of State for Justice [2008] UKHL 68, [2009] 1 AC 588, [2008] Inquest LR 88—the House of Lords held that prisoners were at a specific risk of suicide and therefore the state’s positive obligation under Article 2 had special application. This required prison authorities to implement systemic measures to prevent suicide and to take operational measures where they knew or ought to have known that there was a real and immediate risk of a prisoner taking their own life. (c) The Standard

(i) Edwards v United Kingdom (2002) 35 EHRR 19, 12 BHRC 190, [2001] Inquest LR 57 Keywords: Article 2, prison, inquiry Christopher Edwards, who had a serious mental illness, was detained on remand in November 1994. He was killed by his cell mate Richard Linford, who had a history of violence and mental health issues. Linford pleaded guilty to manslaughter by reason of diminished responsibility, and was placed under a hospital order. No inquest was held. An inquiry was established in 1995 to investigate the care and treatment of Edwards and Linford. It heard evidence from numerous witnesses and reviewed how the men were treated by the various medical, police, judicial and prison authorities.35 However, it was held in private and could not compel witnesses to attend. The applicants were only able to attend when they gave evidence and were not allowed to question the witnesses. The inquiry report, published in June 1998, found ‘a systemic collapse of the protective mechanisms that ought to have operated to protect this vulnerable prisoner’.36 It found numerous shortcomings, including ‘poor record-keeping, inadequate communication and limited inter-agency co-operation, and a number of missed opportunities to prevent the death of Christopher Edwards’.37 Edwards’ parents, the applicants, alleged that Article 2 had been breached because the authorities had failed to protect their son’s life. Further, the procedural aspect of Article 2 had been flawed. The ECtHR agreed. It held that there was sufficient information available at the time that Linford was a dangerous and mentally unwell man, and should have been detained under the Mental Health Act 1983 (MHA 1983). The Court concluded (at paragraph 63): Though it would obviously have been desirable for Christopher Edwards to be detained either in a hospital or at the health care centre of the prison, his life was placed at risk by the introduction into his cell of a dangerously unstable prisoner and it is the shortcomings in that regard which are most relevant to the issues in this case… 35 36

Edwards v United Kingdom (2002) 35 EHRR 19, 12 BHRC 190, [2001] Inquest LR 57, paras 25–33. Edwards, para 32.

37 ibid.

94 Peter Skelton QC, Caroline Cross and Kate Beattie

The Court held that the failure of the agencies involved in this case (the medical profession, police, prosecution and the court) to pass on information about Richard Linford to the prison authorities and the inadequate nature of the screening process on Richard Linford’s arrival in prison disclosed a breach of the state’s obligations.38

(ii) Keenan v United Kingdom (2001) 33 EHRR 38, 10 BHRC 319, [2001] Inquest LR 8 Keywords: Article 2, prisons, mental health While serving a prison sentence the applicant’s son, Mark Keenan, had been diagnosed with mental health problems and was prescribed anti-psychotic medication. He had two admissions to hospital for treatment following overdoses of insulin. On 1 April 1993 he was sentenced to four months’ imprisonment for assaulting his girlfriend. The prison was aware of his mental health problems and he was assessed by a prison’s senior medical officer on admission, who consulted with Keenan’s previous treating psychiatrist. While in prison, he showed signs of deteriorating mental health, and suicidal tendencies. He was placed in the health care centre for observation and following a psychiatric assessment his medication was changed. His behaviour deteriorated further, and his medication was switched back again by a doctor who had no psychiatric training. That evening Keenan assaulted two prison officers. He was placed on a segregation unit. A doctor declared him fit for adjudication, although he continued to make sporadic suicidal threats. On 14 May 1993 he was found guilty of assault and sentenced to an additional 28 days. Those who saw him that day and on 15 May found him generally to be in good spirits and he did not express suicidal thoughts. He was found that evening hanging in his cell by prison officers, and declared dead shortly afterwards. There are no entries in his medical notes from 5 May until his suicide, although the prison doctor alleged that she saw him regularly during this time. The applicant brought a claim before the ECtHR alleging breaches of Article 2, 3 and 13. She claimed that the prison had breached Article 2 because, knowing of his mental health problems, they did not take sufficient care to prevent his suicide. Keenan was segregated and was therefore denied therapeutic care, even though the staff were aware of a real and immediate threat to life. The Government contended that, based on the evidence available, there was no real and immediate risk at the time of his death which they knew or ought to have known. The ECtHR held that the prison authorities had done all that was reasonable in the circumstances. 89. Bearing in mind the difficulties in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, the scope of the positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Not every claimed risk to life therefore can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. For a positive obligation to arise, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that 38

ibid paras 63 and 64.

Article 2 Inquests 95 risk. In this case, the Court has had to consider to what extent this applies where the risk to a person derives from self-harm.

The ECtHR concluded that the prison authorities knew that Keenan was suffering from a mental illness, and that the threats to his life were real. However, the threat was not immediate as the risk varied throughout his imprisonment, and the authorities could not have known that he would take his own life on 15 May: 98. The Court finds that on the whole the authorities made a reasonable response to Mark Keenan’s conduct, placing him in hospital care and under watch when he evinced suicidal tendencies. He was subject to daily medical supervision by the prison doctors, who on two occasions had consulted external psychiatrists with knowledge of Mark Keenan. The prison doctors, who could have required his removal from segregation at any time, found him fit for segregation. There was no reason to alert authorities on 15 May 1993 that he was in a disturbed state of mind rendering an attempt at suicide likely. In these circumstances, it is not apparent that the authorities omitted any step which should have reasonably been taken …

Consequently, it found no violation of Article 2. However, it found breaches of Articles 3 and 13 (right to an effective remedy). Other Cases Sarjantson v Chief Constable of Humberside [2013] EWCA Civ 1252, [2014] QB 411, [2013] Inquest LR 252—where there was a real and immediate risk to life, for a duty of care on the police to arise it was unnecessary that the identity of the victim should be known. It was sufficient that the police knew or ought to have known of a real and immediate risk to the life of a victim of violence, and whether they had done all that they reasonably could to prevent the risk occurring.39 Osman v UK at paragraph 116—see above. Watts v UK at paragraph 83—see above.

B. The Negative Obligation The negative obligation is the duty to refrain from taking life. Like the positive obligation, it is also broken down into two components: (1) a general or systemic duty (see the cases above in the context of the positive obligation), and (2) an operational duty. The negative operational duty is encompassed in Article 2(2), which reads: 2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.

This is applicable even where the death is unintended, as the McCann case makes clear.

39 Sarjantson v Chief Constable of Humberside [2013] EWCA Civ 1252, [2014] QB 411, [2013] Inquest LR 252, in particular paras 22–25.

96 Peter Skelton QC, Caroline Cross and Kate Beattie

(i) McCann v United Kingdom (A/324) 27 September 1995, (1996) 21 EHRR 97 Keywords: Article 2, military personnel In this controversial ‘Death on the Rock’ case, where three Provisional Irish Republican Army (IRA) members were shot dead by the British military in Gibraltar, the ECtHR found the UK liable for breaches of Article 2(2) in relation to the planning of the operation. At the beginning of 1988 there was intelligence that the Provisional IRA were planning a terrorist attack in Gibraltar. It was believed that a car bomb, aimed at killing British soldiers, would be detonated in an assembly area on 8 March 1988. Three members (Savage, Farrell and McCann) of the IRA’s active service unit (ASU) were due to carry out the attack. All three were believed to be armed, dangerous terrorists. There were real concerns that they would use a remote-controlled detonation device, which could be detonated immediately if confronted. The plan by the Gibraltar police and the Special Air Service (SAS) was to arrest all the members of the ASU. However, the SAS’s rules of engagement allowed them to use force, including opening fire, if necessary to protect their lives and the lives of others. On 6 March 1988 the suspects crossed the border into Gibraltar from Spain. Although identified, they were not arrested. Savage was seen parking a car in the square where the attack was anticipated and meeting with Farrell and McCann. They were then tailed by the SAS, but the arrest plans went awry, the soldiers feared they had been identified and the three suspects were shot dead. When searched, they were unarmed. The car was also empty. However, in Farrell’s handbag were keys for another car, which was found in Malaga. Hidden in the car was an enormous explosive device. A jury inquest held in Gibraltar found that the suspects had been lawfully killed. The applicants, who were family members of the deceased, tried and failed to bring proceedings in Northern Ireland. They therefore lodged an application with the ECtHR in 1991, alleging breaches of the Article 2 rights of the deceased. They claimed that there had been serious negligence, if not pre-meditated killing, with the use of force.40 The Commission held by a majority of 11 to 6 that there had been no violation of Article 2. It concluded that the shooting of the suspects had been necessary for the protection of the lives of others. However, the ECtHR held by the narrowest of majorities (10 votes to 9) that Article 2(2) had been breached. In outlining the general approach to Article 2, it noted: 148. The Court considers that the exceptions delineated in paragraph 2 indicate that this provision extends to, but is not concerned exclusively with, intentional killing. As the Commission has pointed out, the text of Article 2, read as a whole, demonstrates that paragraph 2 does not primarily define instances where it is permitted intentionally to kill an individual, but describes the situations where it is permitted to ‘use force’ which may result, as an unintended outcome, in the deprivation of life. The use of force, however, must be no more than ‘absolutely necessary’ for the achievement of one of the purposes set out in sub-paragraphs (a), (b) or (c). 149. In this respect the use of the term ‘absolutely necessary’ in Article 2(2) indicates that a stricter and more compelling test of necessity must be employed from that normally applicable when determining whether State action is ‘necessary in a democratic society’ under paragraph 2 of 40

See para 185ff of the Commission’s report.

Article 2 Inquests 97 rticles 8 to 11 of the Convention. In particular, the force used must be strictly proportionate to A the achievement of the aims set out in sub-paragraphs 2(a), (b) and (c) of Article 2. 150. In keeping with the importance of this provision in a democratic society, the Court must, in making its assessment, subject deprivations of life to the most careful scrutiny, particularly where deliberate lethal force is used, taking into consideration not only the actions of the agents of the State who actually administer the force but also all the surrounding circumstances including such matters as the planning and control of the actions under examination.

In assessing the case, the ECtHR rejected the assertion that the killings had been premeditated.41 It also accepted that the soldiers honestly believed that it was necessary to shoot the suspects. 200. The Court accepts that the soldiers honestly believed, in the light of the information that they had been given, as set out above, that it was necessary to shoot the suspects in order to prevent them from detonating a bomb and causing serious loss of life. The actions which they took, in obedience to superior orders, were thus perceived by them as absolutely necessary in order to safeguard innocent lives. It considers that the use of force by agents of the State in pursuit of one of the aims delineated in Article 2(2) of the Convention may be justified under this provision where it is based on an honest belief which is perceived, for good reasons, to be valid at the time but which subsequently turns out to be mistaken. To hold otherwise would be to impose an unrealistic burden on the State and its law enforcement personnel in the execution of their duty, perhaps to the detriment of their lives and those of others. It follows that, having regard to the dilemma confronting the authorities in the circumstances of the case, the actions of the soldiers do not, in themselves, give rise to a violation of this provision.

However, the majority concluded that there had been errors and mistaken assumptions in the control and organisation of the operation, which meant the use of deadly force became inevitable. In particular, the decision to allow the suspects to cross the border into Gibraltar was criticised: 213. In sum, having regard to the decision not to prevent the suspects from travelling into Gibraltar, to the failure of the authorities to make sufficient allowances for the possibility that their intelligence assessments might, in some respects at least, be erroneous and to the automatic recourse to lethal force when the soldiers opened fire, the Court is not persuaded that the killing of the three terrorists constituted the use of force which was no more than absolutely necessary in defence of persons from unlawful violence within the meaning of Article 2(2)(a) of the Convention.42

As Thomas, Straw, Machover and Friedman say in their book, Inquests: A Practitioners Guide, ‘The key contribution of McCann to human rights jurisprudence is that it recognises systemic deficiency (distinct from individual liability) as something that can be the subject of legal scrutiny and criticism.’43

41

McCann v United Kingdom (1996) 21 EHRR 97, para 184. However, there was a strong dissenting minority, who believed there had been no violation of Article 2. They viewed all the steps taken by the authorities as reasonable, and concluded that the majority’s finding was unjustified. See the Joint Dissenting Opinion in ibid, especially from para 6. 43 Leslie Thomas, Adam Straw, Daniel Machover and Danny Friedman, Inquests: A Practitioners Guide (2nd edn, Legal Action Group, 2014) para 18.19. 42

98 Peter Skelton QC, Caroline Cross and Kate Beattie

Other Cases LCB v UK (1999) 27 EHRR 212, 4 BHRC 447—see the case summary at Section III.A.(1)(vi). The ECtHR considered whether the UK ‘did all that could have been required of it to prevent the applicant’s life from being avoidably put at risk’,44 and concluded that it did.

C. The Procedural Obligation Article 2 must be ‘interpreted and applied so as to make its safeguards practical and effective’.45 Consequently, the procedural limb under Article 2 has grown so as to ensure that potential violations of positive or negative obligations are effectively investigated and necessary action taken to prevent further deaths. Without the procedural obligations, the substantive requirements under Article 2 would be nugatory. The procedural obligation is engaged either: 1. By an arguable or prima facie breach of the substantive obligations;46 2. Where there are grounds to suspect that the death may involve a breach by the state of the substantive obligation.47 The threshold, in contrast to the substantive obligations, is low: only a reasonable suspicion is required. An Article 2 compliant investigation is not just about the conclusion. The case law makes clear that it is as much about the process as the outcome. Furthermore, under Article 2 there is a continuing duty to investigate that binds the state ‘throughout the period in which the authorities can reasonably be expected to take measures with an aim to elucidate the circumstances of death and establish responsibility for it’.48 Although the nature and degree of scrutiny, and the form of the investigation itself, will vary,49 an Article 2 compliant investigation must have the following qualities in order to reach the minimum threshold:50 1. The authorities must act of their own motion;51 2. The investigation must be initiated promptly and proceed with reasonable expedition;52 3. The investigation must be independent;53

44

LCB v UK (1999) 27 EHRR 212, 4 BHRC 447, para 36. Jordan v United Kingdom (2003) 37 EHRR 2, para 102. Middleton (n 6) para 3; R (Hurst) v HM Coroner for Northern District London [2007] UKHL 13, para 28; Regina (Gentle and another) v Prime Minister and others [2008] UKHL 20, para 6. 47 See Catherine Smith (n 11) para 70; R (Long) v Secretary of State for Defence [2014] EWHC 2391 (Admin), [2014] HRLR 20, para 37. 48 Šilih v Slovenia (2009) 49 EHRR 37, para 157; McCaughey’s Application for Judicial Review, Re [2012] 1 AC 725, para 47, cited in Long (n 47) para 102. 49 Amin (n 9) para 42, citing McCann (n 41) para 193, and Jordan (n 45) para 105. 50 See in particular Jordan (n 45) paras 105–09, and Edwards (n 35) paras 69–73 and 84, approved in Amin (n 9) at para 32 (see below) and in R (D) v Secretary of State for the Home Department [2006] EWCA Civ 143 at para 9(iii). 51 See also Öneryildiz (n 7) para 91; Long (n 47) para 120. 52 McCaughey v United Kingdom (2014) 58 EHRR 13, para 130; McDonnell v UK (2014) ECHR 1370, para 86. 53 Ramsahai v The Netherlands (2008) 46 EHRR 43, para 341. 45

46 See

Article 2 Inquests 99

4. The investigation must be open to public scrutiny;54 5. The investigation must be effective, in that: a. It must be conducted in a manner that does not undermine its ability to establish the relevant facts;55 b. It must comprise or obtain sufficient expertise;56 c. It must secure the relevant evidence, including witness evidence; d. It must identify those responsible for the death, although not necessarily by name;57 e. It must reach conclusions on the central issues that are tenable and convincing and identify any shortcomings in the operation of the regulatory system;58 f. It must ensure accountability of state agents or bodies;59 6. It must involve the next of kin to the extent necessary to safeguard their legitimate interests.60 This may include: a. Attendance at hearings; b. Access to documents;61 c. Ability to engage with the issues—although not to cross-examine witnesses;62 d. Funding for lawyers in technically complex cases;63 7. The duty to investigate applies even in difficult security situations.64

(i) McCann v United Kingdom (A/324) 27 September 1995, (1996) 21 EHRR 97 For a summary of the facts see above. This was the first time that the Article 2 procedural obligation was identified by the ECtHR. Lord Phillips in Re McCaughey 65 summarised the case as follows: 15. … The applicants complained about the planning, or lack of planning, which had taken place before the shooting of the IRA unit. They alleged that the shooting had either been premeditated or had resulted from negligence. And they complained that the inquest that had been held into the deaths had not constituted an adequate investigation into the circumstances of the killings. They submitted (see para 185 of the commission’s opinion) that ‘Article 2 should be interpreted as including a procedural element, namely, the provision of an effective procedure after the event for establishing the facts … the procedures in this case were inadequate.’

54 Amin (n 9) para 31. Although Art 2 does not require that all proceedings following a violent death be in public: Ramsahai (n 53) para 353. 55 Nachova (n 8) para 113. 56 R (Stanley) v HM Coroner for Inner North London [2003] EWHC 1180 Admin, para 48; Stoyanovi (n 10) para 64. 57 Nachova (n 8) para 113; Long (n 47) paras 92–99. 58 Amin (n 9) para 31. 59 Öneryildiz (n 7) paras 117–18. 60 See also Letts (n 87) para 59. 61 Although the state is not required to comply with every request for documentation, only to a degree to allow effective participation: Ramsahai (n 53) paras 347–50. 62 R (D) (n 50) paras 36–42. 63 R (Humberstone) v Legal Services Commission [2010] EWCA Civ 1479, para 82. 64 Al-Skeini (n 20) para 164; Long (n 47) para 39. 65 Re McCaughey’s Application for Judicial Review [2011] UKSC 20.

100 Peter Skelton QC, Caroline Cross and Kate Beattie 16. The court accepted this last submission. It held, at para 161: ‘[The court] confines itself to noting, like the commission, that a general legal prohibition of arbitrary killing by the agents of the state would be ineffective, in practice, if there existed no procedure for reviewing the lawfulness of the use of lethal force by state authorities. The obligation to protect the right to life under this provision [article 2], read in conjunction with the state’s general duty under article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alios, agents of the state.’ The court held, at para 162, that there was no need to decide on what form such investigation should take as the inquest that had been held had satisfied the procedural obligation.

(ii) Jordan v United Kingdom (2003) 37 EHRR 2, [2001] Inquest LR 101 Keywords: Article 2, police In Jordan the ECtHR laid down key general principles regarding the procedural obligations under Article 2 that have remained a benchmark to this day. In November 1992 Pearse Jordan, aged 22, was shot and killed during an anti-terrorist operation in Belfast by a member of the Royal Ulster Constabulary (RUC). He was suspected of IRA involvement, but was unarmed at the time. Sergeant A, who shot the deceased, alleged that Jordan had been involved in a car chase, and was forced off the road by the police. As Jordan was escaping, he turned as if to fire at the police and, fearing a threat to life, Sergeant A shot him. Civilian witnesses contended that Jordan’s car had been rammed by police cars, and, having emerged from his car, Jordan was shot when he was walking away, dazed, from the crash. There was nothing threatening in his actions and no warning was heard. An RUC investigation was established to investigate the death, overseen by the Independent Commission of Police Complaints. The RUC’s findings were sent to the Director of Public Prosecutions (DPP), but not to the family. The DPP refused to prosecute because there was insufficient evidence to lay charges, but gave no give further reasons. No disciplinary action was taken against the police officers. In November 1993 the RUC informed the coroner that no prosecution would be brought, and the coroner opened the inquest. However, it took another year for the coroner to receive the papers from the RUC. The inquest began in January 1995. It heard evidence from a number of military, police and civilian witnesses but, in line with practice at the time regarding the use of lethal force, Sergeant A did not appear and could not be compelled to attend. There were then lengthy delays due to a further referral to the DPP in light of new evidence and to judicial review challenges to the coroner’s rulings, disclosure by the RUC and legal aid availability. At the time of ECtHR hearing, over eight years after the death, the inquest still had not concluded. The applicant, Jordan’s father, alleged that his son had been a victim of an unlawful ‘shoot to kill’ policy that was operated by the UK Government in Northern Ireland. He also contended that there had been an inadequate investigation into his death. Both of these allegations were strongly denied by the Government. The ECtHR refused to make a finding regarding the lawfulness of the killing, as there were numerous outstanding questions to be resolved. However, it found that there had been

Article 2 Inquests 101

breaches of the procedural obligations under Article 2. The Court outlined a number of general principles which, given their relevance, are cited in full: 1. General principles 102. Article 2, which safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, to which in peacetime no derogation is permitted under Art.15. Together with Art.3, it also enshrines one of the basic values of the democratic societies making up the Council of Europe. The circumstances in which deprivation of life may be justified must therefore be strictly construed. The object and purpose of the Convention as an instrument for the protection of individual human beings also requires that Art.2 be interpreted and applied so as to make its safeguards practical and effective. 103. In the light of the importance of the protection afforded by Art.2, the Court must subject deprivations of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as for example in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries and death which occur. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation. 104. The text of Art.2, read as a whole, demonstrates that it covers not only intentional killing but also the situations where it is permitted to ‘use force’ which may result, as an unintended outcome, in the deprivation of life. The deliberate or intended use of lethal force is only one factor however to be taken into account in assessing its necessity. Any use of force must be no more than ‘absolutely necessary’ for the achievement of one or more of the purposes set out in sub-paras (a) to (c). This term indicates that a stricter and more compelling test of necessity must be employed from that normally applicable when determining whether State action is ‘necessary in a democratic society’ under paras 2 of Arts 8 to 11 of the Convention. Consequently, the force used must be strictly proportionate to the achievement of the permitted aims. 105. The obligation to protect the right to life under Art.2 of the Convention, read in conjunction with the State’s general duty under Art.1 of the Convention to ‘secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention’, also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force. The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. What form of investigation will achieve those purposes may vary in different circumstances. However, whatever mode is employed, the authorities must act of their own motion, once the matter has come to their attention. They cannot leave it to the initiative of the next-of-kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures. 106. For an investigation into alleged unlawful killing by State agents to be effective, it may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events. This means not only a lack of hierarchical or institutional connection but also a practical independence. 107. The investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances and to the identification and punishment of those responsible. This is not an obligation of result, but of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including inter alia eye witness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an

102 Peter Skelton QC, Caroline Cross and Kate Beattie objective analysis of clinical findings, including the cause of death. Any deficiency in the investigation which undermines its ability to establish the cause of death or the person or persons responsible will risk falling foul of this standard. 108. A requirement of promptness and reasonable expedition is implicit in this context. It must be accepted that there may be obstacles or difficulties which prevent progress in an investigation in a particular situation. However, a prompt response by the authorities in investigating a use of lethal force may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts. 109. For the same reasons, there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next-of-kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests.

As to the application to the present case, the ECtHR criticised the investigation on numerous grounds: 142. The Court finds that the proceedings for investigating the use of lethal force by the police officer have been shown in this case to disclose the following shortcomings: —— a lack of independence of the police officers investigating the incident from the officers implicated in the incident; —— a lack of public scrutiny, and information to the victim’s family, of the reasons for the decision of the DPP not to prosecute any police officer; —— the police officer who shot Pearse Jordan could not be required to attend the inquest as a witness; —— the inquest procedure did not allow any verdict or findings which could play an effective role in securing a prosecution in respect of any criminal offence which may have been disclosed;66 —— the absence of legal aid for the representation of the victim’s family and non-disclosure of witness statements prior to their appearance at the inquest prejudiced the ability of the applicant to participate in the inquest and contributed to long adjournments in the proceedings; —— the inquest proceedings did not commence promptly and were not pursued with reasonable expedition.

The ECtHR held that these failures in the investigative procedures had resulted in a breach of Article 2, and duly awarded damages to the applicant. This case was cited with approval by the House of Lords in Amin (see below).

(iii) Edwards v United Kingdom (2002) 35 EHRR 19, 12 BHRC 190, [2001] Inquest LR 57 Keywords: Article 2, prisons, inquiry For a summary of the facts see above. The applicants alleged that the inquiry did not comply with the procedural obligation under Article 2. The ECtHR outlined the general principles of an effective investigation: 69. The obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 of the Convention to ‘secure to everyone within 66 As the Northern Ireland coronial system did not allow a jury to return a verdict of unlawful killing. See Jordan v United Kingdom (2003) 37 EHRR 2, [2001] Inquest LR 101, paras 65–66 and 125–30.

Article 2 Inquests 103 [its jurisdiction the rights and freedoms defined in [the] Convention’, also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force. The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. What form of investigation will achieve those purposes may vary in different circumstances. However, whatever mode is employed, the authorities must act of their own motion, once the matter has come to their attention. They cannot leave it to the initiative of the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures. 70. For an investigation into alleged unlawful killing by State agents to be effective, it may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events. This means not only a lack of hierarchical or institutional connection but also a practical independence. 71. The investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances and to the identification and punishment of those responsible. This is not an obligation of result, but of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including inter alia eye witness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death. Any deficiency in the investigation which undermines its ability to establish the cause of death or the person or persons responsible will risk falling foul of this standard. 72. A requirement of promptness and reasonable expedition is implicit in this context. While there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities in investigating a use of lethal force may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts. 73. For the same reasons, there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next-of-kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests.

While dismissing the complaints that the inquiry was not independent, and that it was not sufficiently expeditious, it did uphold the applicants’ complaint that it lacked the necessary powers to compel witnesses to attend.67 The Court also agreed that there was a lack of public scrutiny.68 Further, it concluded that the applicants had not been sufficiently involved to safeguard their interests.

(iv) Menson v UK (2003) 37 EHRR CD220, [2003] Inquest LR 146, [2003] Po LR 155 Keywords: Article 2, human rights, police In 1997 Michael Menson, a black man, was set on fire by white youths in a racist attack. He was taken to hospital, where he told his family what had occurred, but later died of his 67 68

Edwards (n 37) para 79. ibid para 83.

104 Peter Skelton QC, Caroline Cross and Kate Beattie

injuries. The police initially believed that he had set himself on fire, as he suffered from mental health issues, and failed to conduct an effective investigation. It was not until his family pressed for further investigations that the police began to treat the death as suspicious. The youths were eventually caught and convicted in 1999. The applicants, his siblings, alleged that the Article 2 procedural obligations had been breached because there had been no comprehensive investigation. While holding that Article 2 was not engaged, the ECtHR found that the procedural limb of Article 2 required an investigation where a person received life-threatening injuries in suspicious circumstances: The Court observes that the applicants have not laid any blame on the authorities of the respondent State for the actual death of Michael Menson; nor has it been suggested that the authorities knew or ought to have known that Michael Menson was at risk of physical violence at the hands of third parties and failed to take appropriate measures to safeguard him against that risk. The applicants’ case is therefore to be distinguished from cases involving the alleged use of lethal force either by agents of the State or by private parties with their collusion (see, for example, McCann v United Kingdom: (1996) 21 E.H.R.R. 97; Jordan v United Kingdom: (2003) 37 E.H.R.R. 2; App. No.37715/97, Shanaghan v United Kingdom, May 4, 2001), or in which the factual circumstances imposed an obligation on the authorities to protect an individual’s life, for example where they have assumed responsibility for his welfare (see, for example, Edwards v United Kingdom: (2002) 35 E.H.R.R. 19), or where they knew or ought to have known that his life was at risk (see, for example, Osman v United Kingdom: (2000) 29 E.H.R.R. 245). However, the absence of any direct State responsibility for the death of Michael Menson does not exclude the applicability of Art.2. It recalls that by requiring a State to take appropriate steps to safeguard the lives of those within its jurisdiction (see LCB v United Kingdom: (1999) 27 E.H.R.R. 212, para.[36]), Art.2(1) imposes a duty on that State to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person, backed up by law enforcement machinery for the prevention, suppression and punishment of breaches of such provisions (see Osman, cited above, para.[115]. With reference to the facts of the instant case, the Court considers that this obligation requires by implication that there should be some form of effective official investigation when there is reason to believe that an individual has sustained life-threatening injuries in suspicious circumstances. The investigation must be capable of establishing the cause of the injuries and the identification of those responsible with a view to their punishment. Where death results, as in Michael Menson’s case, the investigation assumes even greater importance, having regard to the fact that the essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life … … [T]he authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including inter alia eye witness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death. Any deficiency in the investigation which undermines its ability to establish the cause of death, or the person or persons responsible will risk falling foul of this standard … Although there was no State involvement in the death of Michael Menson, the Court considers that the above-mentioned basic procedural requirements apply with equal force to the conduct of an investigation into a life-threatening attack on an individual regardless of whether or not death results. The Court would add that, where that attack is racially motivated, it is particularly important that the investigation is pursued with vigour and impartiality, having regard to the need to

Article 2 Inquests 105 reassert continuously society’s condemnation of racism and to maintain the confidence of minorities in the ability of the authorities to protect them from the threat of racist violence.

The ECtHR held that the police investigation ultimately identified those responsible and they were later convicted. There had also been an official inquiry into the handling of the case, which had been critical of the early stages of the investigation. Furthermore, there had been an inquest with a jury, which had returned a verdict of unlawful killing. Consequently, the procedural obligation had been satisfied.

(v) R (Amin) v Secretary of State for the Home Department [2003] UKHL 51, [2004] 1 AC 653, [2003] Inquest LR 1 Keywords: Article 2, prisons In this case the House of Lords applied the principles in Edwards, thereby emphasising the procedural requirements of Article 2. On 21 March 2000 in Feltham Young Offender Institution, Zahid Mubarek was battered to death by his cell mate, Robert Stewart. Stewart was known to the prison authorities as violent and racist. Following his death, the prison service accepted responsibility. Several investigations were instigated. The prison service began an internal inquiry, which made a number of recommendations but did not recommend disciplinary action against staff members. An inquest was opened and adjourned pending Stewart’s criminal trial, but not reopened after Stewart was convicted of murder. A further investigation was carried out by the Commission for Racial Equality (CRE) to examine racial discrimination in the prison service. The family were not allowed to participate in the inquiry and, apart from a single day, where policy issues were considered, the hearings were in private. The family sought an independent public inquiry into the deceased’s death, but the Minister of State refused. Judicial review proceedings were brought by the deceased’s uncle, and the judge held that the Secretary of State’s refusal to hold an independent investigation breached Article 2. The Home Secretary appealed, and the appeal was allowed. The claimant appealed to the House of Lords. The House of Lords unanimously allowed the appeal. It held that the investigations to date were insufficient to satisfy the procedural obligations under Article 2. Lord Bingham considered the principles laid down by the ECtHR in cases relating to killings by state agents.69 He noted with approval that the ECtHR applied these principles to Edwards, which was factually similar to Amin: 21. As pointed out above, the propositions I have sought to summarise were, in the main, laid down in cases involving deliberate killing or alleged killing by agents of the state. Edwards v United Kingdom (2002) 35 EHRR 487 is of central importance in this appeal because it was not such a case … But the case is important because, although addressing a case in which there had been no killing or alleged killing by state agents and the responsibility of the state (if any) could only rest on its negligent failure to protect the life of Christopher Edwards, a prisoner in its custody, the European Court applied essentially the same principles as in the cases already considered. In my respectful opinion, the Court was fully justified in doing so, for while any deliberate killing by state

69 R (Amin) v Secretary of State for the Home Department [2003] UKHL 51, [2004] 1 AC 653, [2003] Inquest LR 1, para 20.

106 Peter Skelton QC, Caroline Cross and Kate Beattie agents is bound to arouse very grave disquiet, such an event is likely to be rare and the state’s main task is to establish the facts and prosecute the culprits; a systemic failure to protect the lives of persons detained may well call for even more anxious consideration and raise even more intractable problems.

Having cited paragraphs 69–73 of Edwards Lord Bingham considered the judge’s decision in this case: 25. In a succinct and accurate judgment Jackson J reviewed the domestic and Strasbourg case law, deriving from Jordan v United Kingdom 37 EHRR 52 the requirement that an investigation, to satisfy article 2, must have certain features (para 41). (1) The investigation must be independent. (2) The investigation must be effective. (3) The investigation must be reasonably prompt. (4) There must be a sufficient element of public scrutiny. (5) The next-of-kin must be involved to an appropriate extent. From the recent case law Jackson J derived five propositions of which the fourth was: ‘Where the victim has died and it is arguable that there has been a breach of article 2, the investigation should have the general features identified by the court in Jordan v United Kingdom, at paras 106–109.’ The judge concluded on the facts that there had not been an effective official investigation into the death of the deceased and held that there should be an independent investigation, to be held in public, at which the family should be represented.

He concluded: 31. The state’s duty to investigate is secondary to the duties not to take life unlawfully and to protect life, in the sense that it only arises where a death has occurred or life-threatening injuries have occurred: Menson v United Kingdom (Application No. 47916/99) (unreported) 6 May 2003, p 13. It can fairly be described as procedural. But in any case where a death has occurred in custody it is not a minor or unimportant duty. In this country, as noted in paragraph 16 above, effect has been given to that duty for centuries by requiring such deaths to be publicly investigated before an independent judicial tribunal with an opportunity for relatives of the deceased to participate. The purposes of such an investigation are clear: to ensure so far as possible that the full facts are brought to light; that culpable and discreditable conduct is exposed and brought to public notice; that suspicion of deliberate wrongdoing (if unjustified) is allayed; that dangerous practices and procedures are rectified; and that those who have lost their relative may at least have the satisfaction of knowing that lessons learned from his death may save the lives of others. 32. Mr Crow was right to insist that the European Court has not prescribed a single model of investigation to be applied in all cases. There must, as he submitted, be a measure of flexibility in selecting the means of conducting the investigation. But Mr O’Connor was right to insist that the Court, particularly in Jordan v United Kingdom 37 EHRR 52 and Edwards v United Kingdom 35 EHRR 487, has laid down minimum standards which must be met, whatever form the investigation takes. Hooper J loyally applied those standards. The Court of Appeal, in my respectful opinion, did not. It diluted them so as to sanction a process of inquiry inconsistent with domestic and Convention standards.

Having reviewed the investigations to date, he concluded that each inquiry was conducted with a specific purpose in mind. Further, the internal prison inquiry lacked the necessary independence. He noted: 37.… Whether assessed singly or together, the investigations conducted in this case are much less satisfactory than the long and thorough investigation conducted by independent Queen’s Counsel in Edwards’s case, but even that was held inadequate to satisfy article 2(1) because it was held in private, with no opportunity for the family to attend save when giving evidence themselves and without the power to obtain all relevant evidence.

Article 2 Inquests 107

Lord Hope held that ‘the various investigatory processes into Mr Mubarek’s killing which have been conducted so far fall well short of providing the effective public scrutiny that is needed in a case of this kind’.70

(vi) R (Middleton) v HM Coroner for Western Somerset [2004] UKHL 10, [2004] 2 AC 182, [2004] Inquest LR 17 Keywords: Article 2, prisons This seminal case redefined the inquest regime so as to make it compliant with the procedural obligation under Article 2. The test now requires that an Article 2 inquest, in considering ‘how’ the deceased died, ask the question ‘by what means and in what circumstances’. This is now reflected in the CJA 2009: section 5 (which is the successor to section 11 in the 1988 Act) specifically refers to the Middleton test in subsection 2. Colin Campbell, a long-term prisoner, hung himself in his cell on 14 January 1999. There was evidence he was suffering from depression and had suicidal ideation. He self-harmed in November 1998 and a risk form was opened, but was closed several days later. He was taking anti-depressants when he died. The first inquest was quashed because of a lack of inquiry. The second inquest was held in October 2000. His family contended that he was a suicide risk and the prison service was aware of this but failed to place him on a suicide watch. Due to the restrictions in the 1988 Act and the 1984 rules, the jury was told that they must confine themselves to establishing the facts of the death. They were not allowed to make a finding of neglect. However, the coroner indicated that they could write him a note, which would not be published, regarding matters that he should consider when deciding whether he should write a Rule 43 report (now called a Report to Prevent Future Deaths, or PFD report). The jury returned a verdict that the deceased had killed himself while the balance of his mind was disturbed. They also handed up a note of factual conclusions that showed the prison service had failed to take sufficient care of the deceased. Mrs Middleton, the deceased’s mother, brought judicial review proceedings, challenging the direction given in relation to neglect and the coroner’s refusal to attach the note. At first instance, the judge gave a declaration that the verdict was so restrictive that it failed to comply with the state’s investigative duties under Article 2 ECHR. He also concluded that private communications between the coroner and jury were inappropriate and published part of the note in his judgment. The Secretary of State for the Home Department, as an interested party, appealed. The Court of Appeal held that in order to meet the state’s Article 2 procedural obligations the jury should be allowed to find systemic neglect, but not individual neglect. The Secretary of State appealed again. The House of Lords upheld the appeal in part. Lord Bingham, who wrote the only judgment, outlined the procedural obligation: 3. The European Court has also interpreted article 2 as imposing on member states a procedural obligation to initiate an effective public investigation by an independent official body into any death occurring in circumstances in which it appears that one or other of the foregoing substantive obligations has been, or may have been, violated and it appears that agents of the state are, or may be, in some way implicated. 70

ibid para 65.

108 Peter Skelton QC, Caroline Cross and Kate Beattie

He summarised the issues at para 4 as follows: (1) What, if anything, does the Convention require (by way of verdict, judgment, findings or recommendations) of a properly conducted official investigation into a death involving, or possibly involving, a violation of article 2? (2) Does the regime for holding inquests established by the Coroners Act 1988 and the Coroners Rules 1984, as hitherto understood and followed in England and Wales, meet those requirements of the Convention? (3) If not, can the current regime governing the conduct of inquests in England and Wales be revised so as to do so, and if so how?

In considering the first question, he noted that the ECtHR had not explicitly stated what the ‘final product of an official investigation, to satisfy the procedural obligation imposed by article 2 of the Convention, should be.’71 He went on to consider the cases of Keenan, McCann, Jordan and Edwards. Having reviewed the Jordan case, where a violation of Article 2 was found, he noted: 16. It seems safe to infer that the state’s procedural obligation to investigate is unlikely to be met if it is plausibly alleged that agents of the state have used lethal force without justification, if an effectively unchallengeable decision has been taken not to prosecute and if the fact-finding body cannot express its conclusion on whether unjustifiable force has been used or not, so as to prompt reconsideration of the decision not to prosecute. Where, in such a case, an inquest is the instrument by which the state seeks to discharge its investigative obligation, it seems that an explicit statement, however brief, of the jury’s conclusion on the central issue is required. 17. Does that requirement apply only to the very limited category of cases just defined [ie the use of lethal force], or does it apply to other cases as well? The decision in Keenan 33 EHRR 913 shows that it does apply to a broader category of cases, since although in that case no breach of the state’s investigative obligation was alleged or found, the court based its conclusion that article 13 had been violated in part on its opinion (para 121) that the inquest, which did not permit any determination of liability, did not furnish the applicant with the possibility of establishing the responsibility of the prison authorities nor did it (para 122) constitute an investigation capable of leading to the identification and punishment of those responsible for the deprivation of life. A statement of the inquest jury’s conclusions on the main facts leading to the suicide of Mark Keenan would have precluded that comment. 18. Two considerations fortify confidence in the correctness of this conclusion. First, a verdict of an inquest jury (other than an open verdict, sometimes unavoidable) which does not express the jury’s conclusion on a major issue canvassed in the evidence at the inquest cannot satisfy or meet the expectations of the deceased’s family or next-of-kin. Yet they, like the deceased, may be victims. They have been held to have legitimate interests in the conduct of the investigation (Jordan 37 EHRR 52, para 109), which is why they must be accorded an appropriate level of participation: see also R (Amin) v Secretary of State for the Home Department [2004] 1 AC 653. An uninformative jury verdict will be unlikely to meet what the House in Amin, para 31, held to be one of the purposes of an article 2 investigation: ‘that those who have lost their relative may at least have the satisfaction of knowing that lessons learned from his death may save the lives of others.’

71 R (Middleton) v HM Coroner for Western Somerset [2004] UKHL 10, [2004] 2 AC 182, [2004] Inquest LR 17, para 7.

Article 2 Inquests 109 19. The second consideration is that while the use of lethal force by agents of the state must always be a matter of the greatest seriousness, a systemic failure to protect human life may call for an investigation which may be no less important and perhaps even more complex: see Amin, paras 21, 41, 50 and 62. It would not promote the objects of the Convention if domestic law were to distinguish between cases where an agent of the state may have used lethal force without justification and cases in which a defective system operated by the state may have failed to afford adequate protection to human life.

At paragraph 20 he concluded: 20. The European court has repeatedly recognised that there are many different ways in which a state may discharge its procedural obligation to investigate under article 2. In England and Wales an inquest is the means by which the state ordinarily discharges that obligation, save where a criminal prosecution intervenes or a public inquiry is ordered into a major accident, usually involving multiple fatalities. To meet the procedural requirement of article 2 an inquest ought ordinarily to culminate in an expression, however brief, of the jury’s conclusion on the disputed factual issues at the heart of the case.

The House of Lords held that the Article 2 requirements were not met by the current inquest regime. The jury must be allowed to reach conclusions on the central issues of the case. He therefore concluded that this would be best met by a broad interpretation of the relevant legislation: 35. Only one change is in our opinion needed: to interpret ‘how’ in section 11(5)(b)(ii) of the [1988] Act and rule 36 (1)(b) of the [1984] Rules in the broader sense previously rejected, namely as meaning not simply ‘by what means’ but ‘by what means and in what circumstances’.

However, the coroner retained the power to make Rule 43 reports.72

(vii) Nachova v Bulgaria (2006) 42 EHRR 43, 19 BHRC 1 For the facts see above. The ECtHR held that the domestic regulations regarding the use of lethal force were fundamentally flawed, and therefore breached Article 2 in its substantive aspect. Consequently the criminal investigation, which followed the regulations to the letter, was also defective, violating the procedural aspect of Article 2. (a) General principles … 113. The investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used was or was not justified in the circumstances and to the identification and punishment of those responsible. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eye witness testimony and forensic evidence. The investigation’s conclusions must be based on thorough, objective and impartial analysis of all relevant elements and must apply a standard comparable to the ‘no more than absolutely necessary’ standard required by Art.2(2) of the Convention. Any deficiency in the investigation which undermines its capability of establishing the circumstances of the case or the person responsible is liable to fall foul of the required measure of effectiveness.

72

See ibid para 38 and Chapter 25 on PFD reports.

110 Peter Skelton QC, Caroline Cross and Kate Beattie (b) Application of these principles in the present case 114. … The fact that the investigation validated the use of force in the circumstances only serves to confirm the fundamentally defective nature of those regulations and their disregard of the right to life. By basing themselves on the strict letter of the regulations, the investigating authorities did not examine relevant matters such as the fact that the victims were known to be unarmed and represented no danger to anyone, still less whether it was appropriate to dispatch a team of heavily armed officers in pursuit of two men whose only offence was to go absent without leave. In short, there was no strict scrutiny of all the material circumstances. 115. Quite apart from the excessively narrow legal framework in which the investigation was conducted, it is to be further observed that a number of indispensable and obvious investigative steps were not taken … 116. Moreover, the investigator and the prosecutors ignored highly relevant facts…The investigator and the prosecutors thus effectively shielded [commanding officer] Major G from prosecution. … 118. The Court reiterates in this connection that a prompt and effective response by the authorities in investigating the use of lethal force is essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts. 119. In the present case there has been a violation of the respondent state’s obligation under Art.2(1) of the Convention to investigate the deprivation of life effectively.

(viii) R (D) v Secretary of State for the Home Department [2006] EWCA Civ 143, [2006] 3 All ER 946, [2006] Inquest LR 35 Keywords: Article 2, prisons, inquiry The Court was asked to consider what the state’s procedural obligations under Article 2 were where a prisoner was left permanently brain-damaged by a suicide attempt. It held that a public inquiry was required but it was left to the Chairperson’s discretion whether questions by the prisoner’s representatives would be allowed: they were not entitled to cross-examine witnesses. The claimant, who was remanded in custody, carried out several acts of self-harm and one suicide attempt. He finally hung himself using bedlinen that had been left in his cell in HMP Pentonville. D was found in time to save his life, but suffered permanent brain damage. An investigation was carried out by a senior investigating officer in the prison service, Ms Draper. Her report was to some extent critical of the prison service and contained numerous recommendations. D, who was represented by the Official Solicitor, argued that the investigation breached the procedural obligations under Article 2. Judge Munby held in their favour, and ordered that an independent public inquiry take place that allowed D to cross-examine witnesses. The Secretary of State for the Home Department appealed, arguing that it was not necessary to hold a public inquiry nor allow the questioning of witnesses. An ad hoc inquiry by the Prison and Probation Ombudsman would be sufficient to satisfy Article 2. However, this would not be open to the public and the investigation would not be able to compel witnesses to attend.

Article 2 Inquests 111

The Court of Appeal dismissed the appeal in relation to the public inquiry, but allowed the appeal regarding the cross-examination of witnesses. Citing extensively from Amin, the Court held that while the whole inquiry process need not be in public, there were some elements (such as written submissions and oral evidence) that ought to be held up to public scrutiny in order to meet states’ Article 2 procedural obligations. However, the Court of Appeal disagreed that representatives should be allowed to question witnesses as the ECtHR jurisprudence did not require it. Referring to Edwards, it held that the witnesses could put questions to witnesses through the inquiry panel, in accordance with the inquisitorial systems of other Member States. In terms of the Article 2 procedural obligations pertaining to a (near) death in custody, the Court of Appeal provided a neat summary: 9. It is common ground that the following principles apply to a case of a death in custody: (i)

The purposes of the investigation are those stated by Lord Bingham in R. (on the application of Amin) v Secretary of State for the Home Department [2003] UKHL 51; [2004] 1 A.C. 632 at [31], namely ‘to ensure so far as possible that the full facts are brought to light; that culpable and discreditable conduct is exposed and brought to public notice; that suspicion of deliberate wrongdoing (if unjustified) is allayed; that dangerous practices and procedures are rectified; and that those who have lost their relative may at least have the satisfaction of knowing that lessons learned from his death may save the lives of others’.

(ii) The Convention does not adopt a prescriptive approach to the form of the investigation. So long as minimum standards are met, it is for the state to decide the most effective method of investigating: see e.g. Edwards v United Kingdom (2002) 35 E.H.R.R. 487 at [69] and Amin per Lord Bingham at [31], Lord Slynn at [42] and Lord Hope at [63]. (iii) The minimum requirements were stated in Jordan v United Kingdom (2001) E.H.R.R. 52 at [106]–[109], Edwards at [69]–[73] and in Amin at [25]. They are these: (a) the authorities must act of their own motion; (b) the investigation must be independent; (c) the investigation must be effective in the sense that it must be conducted in a manner that does not undermine its ability to establish the relevant facts; (d) the investigation must be reasonably prompt; (e) there must be a ‘sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory; the degree of public scrutiny required may well vary from case to case’: see Jordan at [109] and Edwards at [73]; and (f) there must be involvement of the next of kin ‘to the extent necessary to safeguard his or her legitimate interests’: see Jordan at [109] and Edwards at [73].

(ix) Ramsahai v The Netherlands (2008) 46 EHRR 43, [2007] Inquest LR 103 Keywords: Article 2, police The police shot dead a 19-year-old man who had robbed a scooter at gunpoint. The police launched an investigation, but the public prosecutor decided they had fired in self-defence and that no one should be prosecuted for his death. The grandparents of the deceased challenged this decision before the Court of Appeal. They also alleged that the investigation had been neither independent nor effective because

112 Peter Skelton QC, Caroline Cross and Kate Beattie

it had been carried out by colleagues of the officers who had shot their grandson. At a private hearing the Court of Appeal dismissed their challenge. They therefore applied to the ECtHR, arguing that there had been a breach of the substantive and procedural duties under Article 2. The ECtHR held that there was no violation of the substantive duties under Article 2. The police officer had done no more than was absolutely necessary in shooting Ramsahai. However, the investigation was inadequate: several forensic examinations had not been undertaken, the policed involved had not been interviewed at the time of the incident and there had been a delay in commencing the investigation. The fact that external investigators later became involved did not cure the initial lack of independence. Consequently, there had been a breach of the procedural aspect of Article 2. As to the private procedure before the Court of Appeal, the ECtHR did not find a violation of Article 2. The Court noted: 353. Article 2 does not go so far as to require all proceedings following an inquiry into a violent death to be public … [T]he test is whether there is a sufficient element of public scrutiny in respect of the investigation or its results to secure accountability in practice as well as in theory, maintain public confidence in the authorities’ adherence to the rule of law and prevent any appearance of collusion in or tolerance of unlawful acts. It must be accepted in this connection that the degree of public scrutiny required may well vary from case to case.

(x) R (Gentle and Another) v Prime Minister and others [2008] UKHL 20, [2008] 1 AC 1356 Keywords: Article 2, military personnel, inquiry This case demonstrates that to establish an Article 2 procedural duty, a breach of the substantive obligation must first be shown to exist. Two soldiers died in Iraq following the invasion in March 2003. The claimants, the mothers of the deceased, brought judicial review proceedings against the defendants. They contended that the defendants owed the soldiers a substantive duty under Article 2 to undertake a proper investigation into the lawfulness of the invasion, a duty which had been breached because they had not taken sufficient steps to ensure that the war was lawful under international law. They therefore claimed that the Government had a procedural obligation under Article 2 to establish a public inquiry that would consider whether the Government had taken reasonable steps in determining whether the invasion was lawful. The claimants accepted that no duty arose under Article 2 to investigate whether the invasion itself was lawful. The issue was whether reasonable steps had been taken prior to the invasion to ensure that it complied with international law. The Court of Appeal dismissed the claim and the claimants appealed. Lord Bingham summarised their case as follows: 3. The thrust of the claimants’ case, put very simply, is this. Article 2 of the Convention imposes a duty on member states to protect life. This duty extends to the lives of soldiers. Armed conflict exposes soldiers to the risk of death. Therefore a state should take timely steps to obtain reliable legal advice before committing its troops to armed conflict. Had the UK done this before invading Iraq in March 2003, it would arguably not have invaded. Had it not invaded, Fusilier Gentle and Trooper Clarke would not have been killed.

Article 2 Inquests 113

The House of Lords also dismissed the claim. It held that the procedural duty under Article 2 was dependent upon a breach of the substantive duty. The claimants had not shown an arguable case that the substantive duty had been breached. Lord Bingham outlined the procedural duties under Article 2: 6. It is the procedural obligation under article 2 that the claimants seek to invoke in this case. But it is clear (see the Middleton case [2004] 2 AC 182, para 3, Jordan v United Kingdom (2001) 37 EHRR 52, para 105; Edwards v United Kingdom (2002) 35 EHRR 487, para 69; In re McKerr [2004] 1 WLR 807, paragraphs 18–22) that the procedural obligation under article 2 is parasitic upon the existence of the substantive right, and cannot exist independently. Thus to make good their procedural right to the inquiry they seek the claimants must show, as they accept, at least an arguable case that the substantive right arises on the facts of these cases. Unless they can do that, their claim must fail. Despite the careful and detailed submissions of Mr Rabinder Singh on their behalf, I am driven to conclude that they cannot establish such a right.

There was ‘no warrant for reading article 2 as a generalised provision protective of life, irrespective of any specific death or a threat’.73 Lord Bingham noted: 8. It may be significant that article 2 has never been held to apply to the process of deciding on the lawfulness of a resort to arms, despite the number of occasions on which member states have made that decision over the past half century and despite the fact that such a decision almost inevitably exposes military personnel to the risk of fatalities.

(xi) R (Smith) v Oxfordshire Assistant Deputy Coroner [2010] UKSC 29, [2011] 1 AC 1, Inquest LR 119 (the ‘Catherine Smith’ case) Keywords: Article 2, military personnel Territorial Army reservist Private Jason Smith died of hyperthermia on a British Army base in Iraq in August 2003. At his inquest the coroner held that Article 2 did not apply and that he did not have authority to provide disclosure of certain documents. The coroner gave a narrative verdict that stated Private Smith’s death was ‘caused by a serious failure to recognise and take appropriate steps to address the difficulties that he had in adjusting to that climate’. The claimant, the deceased’s mother, judicially reviewed the coroner on the basis that he had erred in law regarding both the application of Article 2 and his power to order disclosure of documentation. The coroner agreed that he had mistakenly refused disclosure, and quashed his own inquisition. The Secretary of State, who was an interested party, accepted that the deceased had died on a British Army base and therefore was within UK jurisdiction for the purposes of Article 2. However, the parties agreed that guidance was needed for the fresh inquest on two points: First, is a soldier on active military service abroad within the jurisdiction of the Human Rights Act 1998 (HRA 1998) when off his base? Second, if so, must the inquest into the death of such a soldier comply with the procedural requirements of Article 2 where there was an arguable case that the state was responsible for the death? At first instance, Collins J held that Article 2 did indeed apply to all soldiers on active service. Further, as there were grounds to suspect that Private Smith had died due to system

73

R (Gentle and another) v Prime Minister and others [2008] UKHL 20, [2008] 1 AC 1356, para 7.

114 Peter Skelton QC, Caroline Cross and Kate Beattie

failures by the authorities, the procedural obligations under Article 2 applied. The Secretary of State appealed and the Court of Appeal upheld the judge’s decision and so the Secretary of State appealed to the Supreme Court. That Supreme Court held that the HRA 1998 did not apply to soldiers who were off their Army base. (This has since been overruled following the ECtHR judgment in Al-Skeini and the Supreme Court Judgment in Susan Smith). However, the Supreme Court dismissed the appeal on the applicability of Article 2. It held that where there was a reasonable suspicion, as in this case, of a systemic failure by the authorities to take appropriate steps to protect life, then Article 2 applied. Lord Phillips considered when the Article 2 investigative duty arises: The duty to investigate death 70. The duty to hold an article 2 investigation arises where there are grounds for suspecting that a death may involve breach by the state of one of the substantive obligations imposed by article 2. This raises the question of how the state is to identify that there are grounds for such suspicion. Any effective scheme for protecting the right to life must surely require a staged system of investigation of deaths, under which the first stage takes place automatically in relation to every death, whether or not there are grounds for suspecting that there is anything untoward about the death. Where the first stage shows that the death has not, or may not have, resulted from natural causes, there will be a requirement for a further stage or stages of the investigation. The requirement for an article 2 investigation will only arise if the preceding stage of the investigation discloses that there is a possibility that the state has not complied with a substantive article 2 obligation.

He concluded: Must the second inquest satisfy the procedural requirements of article 2? 87. The coroner ruled at the end of the first inquest that it was not necessary to satisfy the procedural requirements of article 2. Collins J and the Court of Appeal have held that the coroner was mistaken. I agree. This is not, however, because Private Smith’s death on active service, of itself, gave rise to a suspicion of breach by the state of its substantive article 2 obligations. It is because the evidence that was placed before the coroner has raised the possibility that there was a failure in the system that should have been in place to protect soldiers from the risk posed by the extreme temperatures in which they had to serve. On the facts disclosed it was arguable that there was a breach of the state’s substantive obligations under article 2. This was enough to trigger the need to give a verdict that complied with the requirements of article 2.

Lord Mance provided a list of circumstances where Article 2 is potentially engaged, and therefore the procedural obligations are automatically found to exist: 210. The state’s procedural duty under article 2 to provide for or ensure an effective public investigation by an independent official body of certain deaths or near deaths has been developed in the case law of the European Court of Human Rights and explored in domestic case law, including that of the House of Lords in R (Amin) v Secretary of State for the Home Department [2004] 1 AC 653, Middleton [2004] 2 AC 182 and R (L (A Patient)) v Secretary of State for Justice [2009] AC 588. Certain categories of case in which the substantive right contained in article 2 has been held to be potentially engaged, with the result that the procedural obligation has been held to exist, are clearly recognisable: (i) Killings by state agents: McCann v United Kingdom 21 EHHR 97, para 161 (article 2 ‘requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alios, agents of the State’) and J ordan v United Kingdom 37 EHRR 52; and see Amin, paras 20 and 25, per Lord Bingham.

Article 2 Inquests 115 (ii) Deaths in custody: Salman v Turkey (2000) 34 EHHR 425, esp para 99 (unexplained death in custody, because persons in custody are in a vulnerable position and the authorities are under a duty to protect them); Edwards v United Kingdom 35 EHRR 487 (violent death of a prisoner at the hands of his cell-mate); Akdogdu v Turkey (Application No 46747/99) (unreported) given 18 October2005, (suicide in prison); R (D) v Secretary of State for the Home Department [2006] 3 All ER 946, considered by the House of Lords in L (a case of suicide in prison). (iii) Conscripts: Álvarez Ramón v Spain (Application No 51192/99) (unreported) given 3 July 2001; Kilinç v Turkey (Application No 40145/98) (unreported) given 7 June 2005; Savage v South Essex Partnership NHS Foundation Trust (MIND intervening) [2009] AC 681, paras 35–37, per Lord Rodger. (iv) Mental health detainees: Savage—although concerned not with any duty to investigate under article 2, but with responsibility in a claim for damages for the suicide of a mental health detainee who succeeded in absconding and committed suicide—highlights the analogy between the state’s duties towards persons in custody and persons in detention for mental health reasons as well as conscripts. (v) Other situations where the state has a positive substantive obligation to take steps to safeguard life. Such situations exist not only where the right to life is inherently at risk, but also where the state is on notice of a specific threat to someone’s life against which protective steps could be taken: Osman v United Kingdom (1998) 29 EHRR 245; Öneryildiz v Turkey (2004) 41 EHRR 325 (state allegedly tolerated and, for political reasons, encouraged slum settlements close to a huge uncontrolled rubbish tip, without making any effort to inform the settlers of dangers posed by the tip, which in the event exploded, killing some 39 residents). In Öneryildiz the court said that, where lives had actually been lost ‘in circumstances potentially engaging the responsibility of the state’, the procedural aspect of article 2 entailed a further duty on the state ‘to ensure … an adequate response-judicial or otherwise-so that the legislative and administrative framework set up to protect the right to life is properly implemented and any breaches of that right are repressed and punished’ (para 91), and that ‘the applicable principles are rather to be found in those the court has already had occasion to develop in relation notably to the use of lethal force, principles which lend themselves to application in other categories of cases’ (para 93, italics added for emphasis). The court explained that, just as in homicide cases the true circumstances of the death often in practice were, or might be, ‘largely confined within the knowledge of state officials or authorities’, so in its view ‘such considerations are indisputably valid in the context of dangerous activities, when lives have been lost as a result of events occurring under the responsibility of the public authorities, which are often the only entities to have sufficient relevant knowledge to identify and establish the complex phenomena that might have caused such incidents’: para 93. It added that: ‘the requirements of article 2 go beyond the state of official investigation, where this has led to the institution of proceedings in the national courts: the proceedings as a whole, including the trial stage, must satisfy the requirements of the positive obligation to protect lives through the law’: para 95. In Öneryildiz itself, it was not the preliminary investigation following the tragedy that was at fault, but rather the operation of the judicial system in response to the tragedy and investigation: paras 96, 115, 117–118 and 150–155.

116 Peter Skelton QC, Caroline Cross and Kate Beattie

(xii) R (Antoniou) v Central and North West London NHS Foundation Trust [2013] EWHC 3055 (Admin), [2013] Inquest LR 224 Keywords: Article 2, mental health, delay The claimant’s wife, who was detained under the Mental Health Act 1983 (MHA 1983), killed herself on a mental health unit. The night before she died she had expressed suicidal ideation. Although she was put on hourly observations she hung herself. The hospital’s serious untoward incident (SUI) report found that the staff had not been liable. At the inquest the jury found that she had inadvertently killed herself. Her husband, from whom she was separated, brought judicial review proceedings. He argued that there should be independent investigations into each death of a detained person (MHA death), as the SUI process was flawed for lack of independence. Such flaws could not be ‘cured’ for the purposes of Article 2 by other investigations, such as an inquest. The Divisional Court (Aitkens LJ and Mitting J) rejected this argument. There was no requirement in either domestic or European law to hold an independent investigation into the death of a person detained under the MHA 1983. While independent investigations had been established in cases where there has been a death in custody or detention, investigations with regards to detained patients were not required by law. The Court considered what Article 2 required in procedural terms: 56. In Ramsahai v Netherlands the Grand Chamber of the ECtHR reiterated at [321]–[322] the general principles it had previously set out in Nachova v Bulgaria on the Article 2 procedural obligations of a State when individuals have been killed as a result of the use of force by a state agent, which might be unlawful. There must be an ‘effective official investigation’ whose essential purpose is to ‘secure the effective implementation of domestic laws safeguarding the right to life’ and, in cases involving State agents or bodies, ‘to ensure their accountability for deaths occurring under their responsibility’. It also reiterated both the need for a ‘sufficient element of public scrutiny’ although the degree of public scrutiny required might well vary from case to case, and also the need for promptness. It repeated the need for the investigation to be ‘effective’ in two senses. First, in the sense of being ‘adequate’, ie. capable of leading to the identification and punishment of those responsible, when there was a death ‘that engages the responsibility of the Contracting Party’ under Article 2; secondly, in the sense of the investigation having not only no ‘hierarchical or institutional’ connection with those implicated in the events, but also having a ‘practical independence’ as well. The court then examined the facts in relation to both the ‘adequacy’ of the State Criminal Investigation and its independence. The ECHR found there were ‘lacunae’ in the way the investigation had been carried out and an unreasonable delay in its start so as to amount to a violation of Article 2. But it also held that the fact that the investigation was carried out under the supervision of the Amsterdam Public Prosecutor, which had some links with the Amsterdam police force, one of whose officers had shot the deceased, was not a violation of Article 2. The Court took account of the degree of independence of the Netherlands Prosecution Service, the fact that the ultimate responsibility for the investigation was borne by the Chief Public Prosecutor and that the investigation could be the subject of review by an independent tribunal. … 76. … Our first conclusion is that no domestic authority requires that, in order to fulfil the State’s Article 2 procedural requirements, there must be an independent investigation from the outset into the death of a patient who has been detained under the MHA and who dies whilst in the hospital’s care …

Article 2 Inquests 117 … 113. For the reasons given above, we have concluded that, given all the circumstances of this case, in particular the fact that there was a properly constituted and conducted Inquest, there was no obligation under Article 2 of the ECHR to have, in addition, a separate independent investigation into the death of JA, either from the outset or from any time thereafter. We have also concluded that, taken as a whole, the investigation process into the death of JA was independent, effective and prompt.

(d) Expertise Stoyanovi v Bulgaria App no 42980/04 (ECtHR, 9 November 2010)—In an investigation into a paratrooper’s death following a routine parachute exercise, the ECtHR held that the internal investigating commission ‘possessed the necessary expertise and impartiality, that its investigation was comprehensive and that its conclusions were adequate, tenable and convincing’.74 (e) Promptness

(i) McCaughey v United Kingdom (2014) 58 EHRR 13 Keywords: Article 2, police, delay In October 1990 two IRA volunteers, Martin McCaughey and Desmond Grew, were shot dead in a suspected arms dump shed by a specialist unit of the British Army. The soldiers believed they were being fired upon, although neither deceased fired any shots. It was alleged that the men had been killed as part of a ‘shoot to kill’ policy that was operated by the RUC at the time. There then was a delay of over 21 years until the inquest was heard in March 2012. There were delays by the Director of Public Prosecutions, the RUC and its successor, the Police Service of Northern Ireland, and the coroner. There were also significant issues regarding disclosure, and two judicial reviews that both went to the House of Lords and were decided in the applicants’ favour.75 When the inquest was finally concluded, the applicants sought judicial review of the inquest, on the grounds that it did not comply with Article 2. At the time of the ECtHR hearing in 2013, 23 years after the deaths, the investigative process was still ongoing. The applicants, who were relatives of the deceased, argued that there had been a breach of the substantive and procedural obligations under Article 2. The complaint regarding investigative delay was admitted, but the other complaints were regarded as premature because domestic remedies had not yet been exhausted. On the issue of delay, the ECtHR stated: 130. Turning to the merits of the admissible complaint, it is established that art.2 requires investigations to begin promptly and to proceed with reasonable expedition, and this is required quite apart from any question of whether the delay actually impacted on the effectiveness of the

74 Stoyanovi v Bulgaria App no 42980/04 (ECtHR, 9 November 2010), para 64. See the summary of this case in Chapter 22 on military personnel. 75 Jordan v Lord Chancellor [2007] UKHL 14; McCaughey’s Application for Judicial Review, Re [2011] UKSC 20.

118 Peter Skelton QC, Caroline Cross and Kate Beattie investigation. While there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities in investigating a use of lethal force may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts.

The ECtHR then considered the unjustifiable delays in this case, which it divided into three phases (paragraphs 137 to 139) and concluded that the investigative delay amounted to a breach of Article 2’s procedural obligations (paragraph 140). Other Cases McDonnell v UK (2014) ECHR 1370, [2014] Inquest LR 156—the ECtHR held that a delay of 17 years between the death of a prisoner and the inquest was excessive, and was a violation of Article 2’s procedural requirements. (f) Funding for Next of Kin

(i) R (Humberstone) v Legal Services Commission [2010] EWCA Civ 1479, [2011] 1 WLR 1460, [2010] Inquest LR 221 Keywords: Article 2, funding The claimant’s 10-year-old son died of an asthma attack. She was arrested on suspicion of manslaughter by gross negligence, but not charged. She applied for funding to the Legal Services Commission (LSC) under the Access to Justice Act 1999. The coroner supported the application due to the medical complexity of the case, the fact that the other interested parties would be legally represented and the likelihood of criticisms of her conduct. The LSC refused on the grounds that Article 2 was not engaged, and even if it were the circumstances were not so exceptional as to justify a recommendation of funding. The claimant successfully judicially reviewed the LSC and the defendant appealed. The Court of Appeal dismissed the appeal. It held that there was sufficient evidence to raise concerns of systemic failings by the ambulance service to engage Article 2. Further, the claimant would not be able to play an effective part in the proceedings given the medical complexities and her own educational difficulties. Smith LJ held: 74. I am satisfied that the duty in some circumstances to provide legal representation arises only in proceedings where article 2 is engaged and not otherwise. Where article 2 is not engaged, Parliament has given the Lord Chancellor the power to exercise a residual discretion in any individual case and he is entitled to issue guidance in whatever terms he thinks fit. That includes limiting the exercise of the discretion to ‘extremely unusual’ cases.76

Other Cases R (Letts) v The Lord Chancellor [2015] EWHC 402 (Admin), [2015] 2 Costs LR 217—see case summary below. See also Chapter 10 on funding. 76

For a more detailed summary please see Chapter 10 on funding.

Article 2 Inquests 119

D. Scope of Article 2 The scope of an Article 2 inquest should include matters that potentially caused or contributed to the death, with a view to identifying those matters that actually, that is, probably, caused or contributed to the death. If there is a jury, the jury must be asked to express conclusions on matters which probably caused or contributed to the death. However, it is discretionary, not mandatory, for a coroner to ask a jury to express conclusions on matters that: (1) potentially caused or contributed to the death; and/or (2) are relevant to the exercise of the power under paraagraph 7(1) of Schedule 5 of the CJA 2009 to produce a Report to Prevent Future Deaths (PFD report, also known as a Regulation 28 Report).77 Article 2 may require the production of a PFD report, even if the matters that form its subject did not cause or contribute to the death.78 (a) Distinction between Jamieson and Middleton Inquests

(i) Catherine Smith [2010] UKSC 29, [2011] 1 AC 1, Inquest LR 119 For a case summary see above. Lord Mance: 208. It is in these circumstances of relevance that Lord Phillips PSC questions the extent of the distinction, and in particular whether there is any difference in practice between a Jamieson and a Middleton inquest, other than the verdict (paras 69(ii) and 78), and to note that he has on this point the support of Lord Walker JSC (though he also agrees with Lord Rodger JSC on this point) as well as of Lord Collins and Lord Kerr JJSC. Lord Hope DPSC expressly (para 95) and, as I read him, Lord Rodger JSC implicitly (paras 112–115) see a continuing distinction between the scope of investigation under a Jamieson and a Middleton inquest. For my part, I would have wished to be able to go as far as Lord Phillips PSC, but I do feel some difficulty about questioning whether there is in practice any real distinction at all (save in the verdict expressed), having regard to Hurst and the 2009 Act and also having regard to my relative ignorance as to the extent to which such a distinction between the two types of inquest is in fact meaningful in day-to-day practice (as the courts in Jamieson, Middleton and Hurst must on the face of it have thought). However, it seems unnecessary on this appeal to pursue this aspect further. Everyone agrees that coroners have a considerable discretion as to the scope of their inquiry, although the verdict that they may deliver differs according to the type of inquest being held. The practical solution is no doubt for coroners to be alert to the possibility that a Middleton type verdict may be, or become, necessary, and to be ready to adapt the scope of their investigation accordingly.

77 78

As per the Coroners (Investigations) Regulations 2013, reg 28. See Chapter 25 for further details.

120 Peter Skelton QC, Caroline Cross and Kate Beattie

(ii) R (Lewis) v HM Coroner for the Mid and North Division of the County of Shropshire [2009] EWCA Civ 1403, [2010] 1 WLR 1836, [2009] Inquest LR 294 Keywords: Article 2, prisons, PFD reports Karl Lewis, a prisoner who had a history of mental health issues and self-harm, hung himself in his cell at a young offender institution. He was found by a prison officer, who did not have any training in suicide prevention or first aid, or the appropriate equipment to cut him down. Although the prison officer had a key for the cell, he did not enter it but radioed for assistance; however, he used the code for breathing difficulties as opposed to possible loss of life. Consequently, help took longer to arrive than it otherwise would have done, and by the time the prisoner was cut down he was dead. At the inquest the coroner gave the jury a questionnaire, but none of the questions pertained to the action taken after the prisoner had been found hanging. The jury returned a verdict that the deceased had hanged himself with the intention of taking his own life. The coroner wrote a substantial rule 43 report to the Prison Minister, the prison governor and the probation and social services but did not refer to events after the deceased was found hanging. The deceased’s father brought judicial review proceedings, alleging Article 2 ECHR and section 11 of the Coroners Act 1988 had been breached as the jury had not been allowed to express a view on events after the deceased had been found hanging. The judicial review was dismissed at first instance and the claimant appealed. The Court of Appeal dismissed the appeal. The jury’s role was limited to fact-finding. However, the coroner had the power to make recommendations where systemic failures had been identified79 and, in order to satisfy the Article 2 procedural obligation, was required to do so. Giving the leading judgment, Lord Justice Sedley stated: 16. … The want of equipment, training and effective procedure which the undisputed evidence revealed was so eloquent of action that needed to be taken to prevent similar fatalities that the coroner cannot have believed otherwise (and, to be fair to him, has nowhere suggested that he did believe otherwise). In such a situation the permissive power—‘may report’—could only be properly exercised in one way if the purposes of article 2 were to be respected, and that was by making a report on the issue.

He held that it would be in the coroner’s discretion to leave possible, as opposed to probable, causative circumstances to the jury, but a coroner could not be compelled to do so. 29. All of this speaks strongly in favour of a power to take the jury’s verdict on such questions. But I am unable to find a reason of principle for making it a duty. It would be quite different if rule 43 were not there, backed as it always is by the supervisory power of the High Court to ensure that it is properly operated. There would then be a significant failure (assuming that no other satisfactory mechanism existed) to implement the investigative requirement of article 2. But it seems to me in the end that the present legislative allocation of functions between coroner and jury, properly interpreted and properly implemented, will fulfil the functions which Mr Owen correctly submits are required by the Convention to be fulfilled.

79

1984 Rules, r 43.

Article 2 Inquests 121

(iii) R (Fullick) v HM Senior Coroner for Inner North London [2015] EWHC 3522 (Admin) Keywords: Article 2, police, jury The deceased, a vulnerable 47 year-old woman, collapsed at Hornsea police station in London after being left unsupervised following an interview about a criminal offence she had allegedly witnessed. She died in hospital several days later. The pathologist instructed by the coroner concluded that she had died from ‘a combination of drug and alcohol toxicity, significant myocardial fibrosis and atherosclerosis of two major coronary arteries’ (paragraph 12). Prior to the inquest, the coroner refused the family’s request to sit with a jury. She also indicated that she intended to conduct an Article 2 compliant inquest, without ruling explicitly that Article 2 was engaged. The coroner’s decision not to sit with a jury was successfully challenged in the High Court (McCombe LJ and HHJ Peter Thornton QC, the Chief Coroner).80 In its judgment, the court also made the following obiter comments about the significance of Article 2 and the need for coroners to give clear rulings about its engagement: Article 2 54. Finally, we do not wish to leave this case without reference to the issue of whether the inquest will be one in which Article 2 of the European Convention on Human Rights, the right to life, is engaged or not. The claimant has invited the coroner to rule that for the purposes of the investigation and inquest Article 2 is engaged. And this is a matter for the coroner. 55. Whether Article 2 is engaged or not may have consequences. In some cases (not this one) the coroner’s decision that Article 2 is engaged may provide a springboard for a legal aid application for the family. In Article 2 cases the conclusions of the coroner (or jury) may be judgmental: see R (Middleton) v HM Coroner for West Somerset [2004] 2 AC 182 at [37]. In non- Article 2 cases they may not: see R v HM Coroner for North Humberside and Scunthorpe, ex parte Jamieson [1955] QB 1, 24. It is therefore important that the coroner provides a clear answer to this question. 56. The coroner dealt with this point on several occasions in correspondence. In each she stated that the inquest would be ‘Article 2 compliant’. In her letter of 19 October, for example, she wrote: ‘My officer … has already explained to you that I do not conduct inquests where article 2 of the European Convention on Human Rights is engaged and those where it is not engaged in any way differently, and so for this reason the inquest will certainly be article 2 compliant.’ 57. This statement, in our view, is not entirely clear. It does not say whether Article 2 is engaged. It could mean that the coroner conducts all inquests the same way, whether Article 2 is engaged or not. In which case this may be an inquest which is ‘Article 2 compliant’ (perhaps in the procedural sense) but not one in which Article 2 is engaged. The coroner seems to suggest in her letter of 19 October that Article 2 is not engaged when she refers to the four statutory questions, who died, and when, where and ‘how’ did she come by her death. ‘How’ suggests a non- Article 2 (Jamieson) inquest, as opposed to an Article 2 (Middleton) inquest in which the ‘how’ becomes the wider question of ‘in what circumstances’: section 5(2) of the 2009 Act. On the other hand the phrase ‘article 2 compliant’ tends to suggest in ordinary language that Article 2 may be engaged.

80

The court’s findings in respect of the jury issue are considered in Chapter 11.

122 Peter Skelton QC, Caroline Cross and Kate Beattie 58. We do not know which of these meanings, or any other, is intended. In all cases where the issue of Article 2 is raised for consideration, the coroner should respond with clarity. If necessary the coroner should rule, with brief reasons. Interested Persons need to know whether the coroner considers that Article 2 is arguably engaged, either as a general duty or as an operational duty, so that they can know whether the State’s procedural duty of investigation is triggered. 59. It would therefore be helpful if the coroner could clarify her statement. If Article 2 is engaged for the investigation (and inquest) she should say so. If, in her judgment, it is not engaged, she should invite the Interested Persons to make representations, should they wish to do so.

(b) ‘Hybrid’ Inquests Recently, an argument has been made regarding the effect of the 2009 Act on the scope of Article 2 inquests. The argument is this: the 2009 Act treats state agents differently from non-state agents. Under section 5(2) of the Act, where state agents (who must comply with the HRA 1998) are liable for a death, or suspected of liability, then the coroner or jury must consider by what means and in what circumstances the deceased came by his death. However, where non-state agents—who are not subject to the HRA—are implicated, the question is limited to ‘by what means’ (see section 5(1)(b)). Therefore, where a person dies as a result of circumstances caused by state agents and non-state agents (eg, a combination of an industrial accident at the premises of a private sector employer and systemic failures by the emergency services), the scope of the inquiry and the verdict should be wider for the latter than the former. This ‘hybrid inquest’ approach was briefly considered and rejected by the Hallett LJ in R (Sreedharan) v Manchester City Coroner [2013] EWCA Civ 181.81

E. Role of an Article 2 Inquest An ‘enhanced’ inquest, which complies with Article 2, may fulfil the state’s procedural obligations.82 Section 5 of the CJA 2009 enshrines in statute the common law position since Middleton. However, an enhanced inquest will not always be required, for example if there have been full criminal proceedings.83 Nor will an Article 2-compliant inquest always be sufficient, for example in establishing issues of state responsibility for the Bloody Sunday killings, or military manoeuvres.84 On the other hand, there are circumstances where the Article 2 obligation arises automatically, irrespective of any arguable breach by the state.85 81 At para 23 Hallett LJ said ‘[Counsel for the respondent coroner and the interested party] rejected (as would I) [counsel for the claimant’s] attempt to classify this inquest as what she called a “hybrid”, namely an inquest in which the procedural duty under Article 2 is only triggered by the involvement of state agents (here the emergency services personnel) but other non state agents (the Appellant) are swept up in the inquiry. In my view, it cannot be right to suggest, as she appeared to do, that once a coroner has embarked upon an Article 2 compliant inquest there should be less intensive scrutiny of the conduct of the non state agent than of the conduct of the state agent. It is only by examining the roles of each fully and fairly that the role of the state agent can be put into its proper perspective and the truth ascertained.’ 82 Middleton (n 6) paras 31–36. 83 ibid para 30. 84 Catherine Smith (n 11) para 81; Antoniou (p 116) para 24. 85 Letts, para 75.

Article 2 Inquests 123

(i) Middleton v HM Coroner for Western Somerset [2004] UKHL 10, [2004] 2 AC 182, [2004] Inquest LR 17 For the facts see above. Lord Bingham: 29. How far, then, does the current regime for conducting inquests in England and Wales match up to the investigative obligation imposed by article 2? 30. In some cases the state’s procedural obligation may be discharged by criminal proceedings. This is most likely to be so where a defendant pleads not guilty and the trial involves a full exploration of the facts surrounding the death. It is unlikely to be so if the defendant’s plea of guilty is accepted (as in Edwards 35 EHRR 487), or the issue at trial is the mental state of the defendant (as in Amin [2003] 3 WLR 1169), because in such cases the wider issues will probably not be explored. 31. In some other cases, short verdicts in the traditional form will enable the jury to express their conclusion on the central issue canvassed at the inquest. McCann 21 EHRR 97 has already been given as an example: see para 14 above. The same would be true if the central issue at the inquest were whether the deceased had taken his own life or been killed by another: by choosing between verdicts of suicide and unlawful killing, the jury would make clear its factual conclusion. But it is plain that in other cases a strict Ex p Jamieson [1995] QB 1 approach will not meet what has been identified above as the Convention requirement. In Keenan 33 EHRR 913 the inquest verdict of death by misadventure and the certification of asphyxiation by hanging as the cause of death did not express the jury’s conclusion on the events leading up to the death. Similarly, verdicts of unlawful killing in Edwards and Amin, although plainly justified, would not have enabled the jury to express any conclusion on what would undoubtedly have been the major issue at any inquest, the procedures which led in each case to the deceased and his killer sharing a cell. 32. The conclusion is inescapable that there are some cases in which the current regime for conducting inquests in England and Wales, as hitherto understood and followed, does not meet the requirements of the Convention … 33. Question (3). Can the current regime governing the conduct of inquests in England and Wales be revised so as to meet the requirements of the Convention, and if so, how? … 35. Only one change is in our opinion needed: to interpret ‘how’ in section 11(5)(b)(ii) of the Act and rule 36 (1)(b) of the Rules in the broader sense previously rejected, namely as meaning not simply ‘by what means’ but ‘by what means and in what circumstances’. 36. This will not require a change of approach in some cases, where a traditional short form verdict will be quite satisfactory, but it will call for a change of approach in others: paras 30–31 above. In the latter class of case it must be for the coroner, in the exercise of his discretion, to decide how best, in the particular case, to elicit the jury’s conclusion on the central issue or issues. This may be done by inviting a form of verdict expanded beyond those suggested in form 22 of Schedule 4 to the Rules. It may be done, and has (even if very rarely) been done, by inviting a narrative form of verdict in which the jury’s factual conclusions are briefly summarised. It may be done by inviting the jury’s answer to factual questions put by the coroner. If the coroner invites either a narrative verdict or answers to questions, he may find it helpful to direct the jury with reference to some of the matters to which a sheriff will have regard in making his determination under section 6 of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976: where and when the death took place; the cause or causes of such death; the defects in the system which contributed to the death; and

124 Peter Skelton QC, Caroline Cross and Kate Beattie any other factors which are relevant to the circumstances of the death. It would be open to parties appearing or represented at the inquest to make submissions to the coroner on the means of eliciting the jury’s factual conclusions and on any questions to be put, but the choice must be that of the coroner and his decision should not be disturbed by the courts unless strong grounds are shown. 37. The prohibition in rule 36(2) of the expression of opinion on matters not comprised within sub-rule (1) must continue to be respected. But it must be read with reference to the broader interpretation of ‘how’ in section 11(5)(b)(ii) and rule 36(1) and does not preclude conclusions of fact as opposed to expressions of opinion. However the jury’s factual conclusion is conveyed, rule 42 should not be infringed. Thus there must be no finding of criminal liability on the part of a named person. Nor must the verdict appear to determine any question of civil liability. Acts or omissions may be recorded, but expressions suggestive of civil liability, in particular ‘neglect’ or ‘carelessness’ and related expressions, should be avoided. Self-neglect and neglect should continue to be treated as terms of art. A verdict such as that suggested in para 45 below (‘The deceased took his own life, in part because the risk of his doing so was not recognised and appropriate precautions were not taken to prevent him doing so’) embodies a judgmental conclusion of a factual nature, directly relating to the circumstances of the death. It does not identify any individual nor does it address any issue of criminal or civil liability. It does not therefore infringe either rule 36(2) or rule 42.

(ii) Catherine Smith [2010] UKSC 29, [2011] 1 AC 1, Inquest LR 119 For the facts see above. Lord Phillips: How appropriate is an inquest for the discharge of article 2 procedural obligations? 81. As I have pointed out, inquests were designed to perform a fact finding function as a stage in an overall scheme of investigation that would commence before the inquest and might continue after it. An inquest will not be the appropriate vehicle for all inquiries into state responsibility for loss of life. An inquest would not have been the appropriate means of determining whether the death of a victim of new variant CJD, contracted from eating BSE infected beef, involved government responsibility, nor for determining the issues of state responsibility for the ‘Bloody Sunday’ killings. An inquest can properly conclude that a soldier died because a flack jacket was pierced by a sniper’s bullet. It does not seem to me, however, that it would be a satisfactory tribunal for investigating whether more effective flack jackets could and should have been supplied by the Ministry of Defence. If the article 2 obligation extends to considering the competence with which military manoeuvres have been executed, a coroner’s inquest cannot be the appropriate medium for the inquiry. … 86. As the bodies of servicemen who die or are killed on active service abroad are brought back to this country, any internal investigation that has taken place will be followed by a public inquest that will satisfy many of the requirements of an article 2 investigation. It will often be only in the course of the inquest that it will become apparent that there is an issue as to whether there has been a breach by the state of its positive article 2 obligations. Only at that stage will it be appreciated that the exercise that is in progress is one called for by article 2 and one that must, if possible, satisfy the requirements of that article. Whether the inquest will be the appropriate medium to do this will depend on the nature of the obligation that is alleged to have been broken. The decision in Middleton’s case [2004] 2 AC 182, and section 5(2) of the 2009 Act that gives effect to it, requires the coroner to adapt the verdict, in so far as this is possible, in order to satisfy the requirements of article 2.

Article 2 Inquests 125

(iii) R (Letts) v The Lord Chancellor [2015] EWHC 402 (Admin), [2015] 2 Costs LR 217 Keywords: Article 2, mental health, funding In this case the Court held that there are categories of cases where the Article 2 procedural obligation arises automatically, irrespective of any culpability by the state. A voluntary patient at a mental health unit committed suicide whilst on temporary release. Christopher Letts had a history of mental illness and suffered from paranoid delusions. He had been detained under the MHA 1983 in the past. In 2013 he had been admitted as an informal patient to the defendant trust’s hospital. He was assessed by a mental health practitioner and two doctors, who concluded that he was not suffering from symptoms of a mental disorder and did not require detention under the MHA 1983. The doctors did not know him, did not have access to the full medical file and did not talk to his family. Christopher agreed to stay in hospital; however, he discharged himself the next day and four days later he jumped in front of a train and killed himself.86 The claimant, his sister, sought legal aid for the inquest. However, the director of legal aid casework refused funding as the case did not meet the two conditions outlined in the Lord Chancellor’s Exceptional Funding Guidance (Inquests) (the Guidance). The claimant brought judicial review proceedings challenging that decision and also challenging the lawfulness of the Guidance. She argued that there were certain categories of cases where the Article 2 investigative (procedural) duty applied automatically, and the Guidance’s failure to refer to this category was unlawful or misleading. Green J held that the guidance was ‘inadequate and both incorporates an error of law and, also, provided a materially misleading impression of what the law is’.87 It required a caseworker to consider whether the state was arguably in breach as a precondition to a consideration of need. However, there were categories of cases where the investigative obligation arose automatically irrespective of proof of the state’s wrongdoing. In some circumstances the mere fact of death was sufficient to trigger the investigative duty. Having considered Amin, R(L), Edwards and Catherine Smith Green J concluded: 74. In these cases the courts have held that the mere fact of death gives rise to a ‘possibility’ of State complicity and that this suffices to trigger the investigative duty. It is quite clear that when referring to the ‘possibility’ of a violation the Courts are by no means saying that there is (or needs to be) any evidence of a violation … 75. For this reason the Courts have now been quite explicit that in a number of circumstances the duty arises automatically, quite irrespective of any hint of arguable breach by the state.

Furthermore, the Article 2 investigative duty also requires that the next-of-kin be involved. The judge held: 59. The right or legitimate interest of the next-of-kin to involvement in the procedure is viewed as a concomitant of the imperative for there to be an element of public scrutiny of the investigation in order to secure accountability. This in turn is an ingredient of the overriding need to maintain public confidence in the adherence of the State to the rule of law and to prevent any appearance of

86 87

This case is considered further in Chapters 10 on funding and 18 on mental health. R (Letts) v The Lord Chancellor [2015] EWHC 402 (Admin), [2015] 2 Costs LR 217, para 80.

126 Peter Skelton QC, Caroline Cross and Kate Beattie collusion in or tolerance of unlawful acts. It necessarily follows that the right of the individual to participate, which triggers the consequential obligation upon the State to consider whether legal aid is needed, is an integral part of the Article 2 duty.

However, he refused to lay down guidelines on the scope of Article 2 in relation to deaths of mental health patients, noting ‘the precise outer limits of this principle are hard to define’.88

F. Article 2 and Inquests Predating the HRA Originally, the domestic courts held that the Article 2 procedural duties only apply after the HRA was adopted on 2 October 2000.89 This was in line with ECtHR case law at the time.90 However, since the ECtHR’s controversial decision in Šilih v Slovenia,91 the procedural obligation under Article 2 to investigate a death is autonomous and detachable. Consequently, the state must comply with the procedural requirements of Article 2 even if the death predated the accession to the ECHR provided there is a ‘genuine connection’ between the death and the relevant date. This judgment was followed by the Supreme Court in In re McCaughey, although with some reservations.92 Following the ECtHR Grand Chamber’s decision in Janowiec v Russia,93 the criteria in Šilih has been clarified.94 For the procedural obligations under Article 2 to apply to deaths predating a state’s accession to the ECHR, the following conditions must be satisfied: (1) Where the death occurred before the state joined the Convention (‘the critical date’), the ECtHR’s temporal jurisdiction will only extend to procedural acts and omissions in the period subsequent to that date. (2) There must be a ‘genuine connection’ between the triggering event (the death(s)) and the critical date. For a genuine connection to exist, either: a. The time lapse should be reasonably short, that is, should not be longer than 10 years; or b. A major part of the procedural investigation must have, or ought to have, taken place after the entry into force of the Convention. (3) In situations where the ‘genuine connection’ test cannot be met, then the ‘Convention values’ test is applied. This will come into play if the triggering event amounts to ‘a negation of the very foundations of the Convention’.95 Examples include ‘serious crimes under international law, such as war crimes, genocide or crimes against humanity’.96 88

ibid para 92. McKerr, In re [2004] UKHL 12; R (Hurst) v London Northern District Coroner [2007] UKHL 13. Although see Middleton (n 6), where both deaths preceded the HRA, but no issue was raised regarding the retrospective application of the HRA (see Hurst, para 30). 90 Moldovan v Romania App nos 41138/98 and 64320/01 (ECtHR, 13 March 2001); Voroshilov v Russia App no 21501/02) (ECtHR, 8 December 2005) and Kholodov and Kholodova v Russia App no 30651/05 (ECtHR, 14 September 2006) cited in In re McCaughey (n 1) paras 3 and 4. 91 Šilih v Slovenia (2009) 49 EHRR 37. 92 In re McCaughey (n 1). 93 Janowiec v Russia (2014) 58 EHRR 30. 94 See in particular ibid paras 140–51. 95 ibid para 150. 96 ibid. 89

Article 2 Inquests 127

(4) However, if the triggering event occurred before the Convention was adopted, on 4 November 1950, then the ECtHR has no jurisdiction. The following cases are relevant to inquests predating the HRA: McKerr, In re [2004] UKHL 12, [2004] 1 WLR 807, [2004] Inquest LR 35—the House of Lords held that Article 2 had only been incorporated into domestic law after the HRA came into force. The investigatory obligation of Article 2 flowed from the death itself and, as the Act was not generally retrospective, there was no requirement to comply with it where the death had preceded the coming into force of the Act. R (Hurst) v HM Coroner for Northern District London [2007] UKHL 13, [2007] 2 AC 189, [2007] Inquest LR 29—this case was an unsuccessful attempt to circumvent McKerr by relying on section 3 of the HRA,97 which had not been considered in that case. The majority in the House of Lords held that the applicant’s son was murdered before the HRA came into force. Consequently, the Act was not applicable and section 3 could not be relied upon as an interpretative tool.98 Šilih v Slovenia (2009) 49 EHRR 37, [2009] Inquest LR 117—the applicants’ son died in May 1993 following medical negligence. They alleged that there had been a breach of the procedural limb of Article 2, but the Slovenian Government argued that the case was inadmissible, as Slovenia did not accede to the ECHR until June 1994. The Grand Chamber held that the ‘procedural obligation to carry out an effective investigation under article 2 has evolved into a separate and autonomous duty’.99 Where the death occurred before the ECHR came into force, only procedural acts and/or omissions occurring after that date can fall within the Court’s temporal jurisdiction.100 Further, there must be a ‘genuine connection between the death and the entry into force of the Convention in respect of the respondent state for the procedural obligations imposed by article 2 to come into effect’.101 The Grand Chamber held that the applicants’ complaint fell within the Court’s temporal jurisdiction and concluded that there had been a violation of the procedural limb of Article 2. Re McCaughey’s Application for Judicial Review [2011] UKSC 20, [2012] 1 AC 725, [2011] Inquest LR 22—this case arose out of the long-running investigation into the killing of two IRA members by the security forces in October 1990 (see above). The Supreme Court held that, following Šilih, the procedural obligations under Article 2 were detachable and autonomous from the substantive obligations. Consequently, the coroner was required to conduct the inquest in a manner that complied with the state’s Article 2 procedural obligations. This marked a significant departure from the earlier House of Lords’ cases.102 As Lord

97

Section 3 requires that legislation be interpreted so as to be compatible with the ECHR. in particular Lord Brown’s judgment in R (Hurst) v HM Coroner for Northern District London [2007] UKHL 13, [2007] 2 AC 189, [2007] Inquest LR 29, paras 42–47. 99 Šilih v Slovenia (2009) 49 EHRR 37, [2009] Inquest LR 117, para 159. 100 ibid para 161. 101 ibid para 163. 102 In re McKerr [2004] 1 WLR 807, HL(NI) and Jordan v Lord Chancellor [2007] 2 AC 226, HL(NI). See in particular Lord Kerr’s summary of the principles in this case in Re McCaughey’s Application for Judicial Review [2011] UKSC 20, [2012] 1 AC 725, [2011] Inquest LR 22, para 119. 98 See

128 Peter Skelton QC, Caroline Cross and Kate Beattie

Dyson noted, the ECtHR majority in Šilih had reinterpreted the investigative obligations under Article 2, continuing the evolution of the Convention as a ‘living instrument’.103 Janowiec v Russia (2014) 58 EHRR 30—thousands of Polish prisoners of war (POWs) were massacred by the Soviet Army between April and May 1940. Their remains were uncovered in mass graves in Katyn Forest in 1942–43. In 1990 a criminal investigation was opened but ultimately discontinued because those who were believed to be responsible were dead. The Polish applicants were relatives of the deceased POWs who alleged that the Russian authorities had failed to discharge their Article 2 procedural obligations by discontinuing the investigation. The Russian Government objected to the ECtHR’s competence on the basis that it did not have jurisdiction. Russia had joined the ECHR in May 1998, 58 years after the executions. The ECtHR held unanimously that it had no competence to consider the Article 2 complaints because (1) there was no ‘genuine connection’ between the triggering event (the time of the massacre) and the critical date (accession to the ECHR); and (2) more fundamentally, the massacre had occurred 10 years before the ECHR came into existence, and therefore the ‘Convention values’ argument could not be applied. The Court used the judgment to clarify the requirements of the Šilih test: see in particular paragraphs 140 to 151. Finucane’s (Geraldine) Application [2015] NIQB 57—this case related to one of the most notorious deaths in the history of the Troubles in Northern Ireland. Pat Finucane, a solicitor who had represented prominent IRA and INLA members, was shot dead at his Belfast home in front of his family by loyalist paramilitaries on 12 February 1989. It later emerged that the Government, through its intelligence services, had either colluded with the paramilitaries or had known of the attack and had failed to prevent his murder. Several investigations were undertaken, which the ECtHR found to have violated Article 2’s procedural obligations in numerous respects.104 The immediate application was brought because his widow had been assured by the Prime Minister that an inquiry would be held, whereas in fact a review was carried out by a QC. She argued that the failure to establish a public inquiry was contrary to Article 2. The Government contended that the procedural obligation did not apply to this case because the time between the death (the triggering event) and the UK’s adoption of the HRA 1998 on 2 October 2000 (the critical date) was over 10 years (11 years, six months). Stephens J held that the time limit in Janowiec was not strict, although he accepted that the period must be ‘reasonably short’.105 However, in this case it was clear that the state had ‘positively obstructed’ the investigations by preventing or delaying them.106 In those circumstances, the ‘genuine connection’ test was met. R (Keyu) v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69, [2015] 3 WLR 1665—the appellants were relatives of the deceased or witnesses to their deaths. They alleged that in 1948 British troops has deliberately killed civilians in colonial Malaya whilst combating an insurgency and there had been an institutional cover-up by the British Government regarding their deaths. In 2008 they sought a public inquiry, which was refused. The appellants judicially reviewed the decision, arguing, amongst other matters, 103 See

McCaughey (n 11) paras 126 and 136. Finucane v UK (2003) 37 EHRR 29. 105 ibid para 34. 106 ibid. 104 See

Article 2 Inquests 129

that an inquiry was required under Article 2. The Supreme Court rejected this argument. While the first limb of the Janowiec test (the failure to carry out a full investigation) was satisfied, the second limb was not: there was no ‘genuine connection’ between the deaths and the critical date because the killings had taken place over 10 years before the critical date. The majority of the Court held the critical date to be 14 January 1966, when the UK gave the right to UK citizens to bring individual petitions, rather than 1953, when the UK joined the ECHR and extended its remit to its colonies. While accepting that the 10 year limit is ‘essentially arbitrary’, Lord Kerr held that a limit is necessary and the period ‘accords with what is, in most cases, practically possible’.

G. Extra-territoriality of Article 2 The Al-Skeini case extended the extra-territoriality of Article 2 to areas where the Convention signatories had assumed authority and responsibility for some of the functions that would usually be exercised by the state.

(i) Al-Skeini v United Kingdom (2011) 53 EHRR 18, 30 BHRC 561, [2011] Inquest LR 73 Keywords: Article 2, military personnel The applicants were relatives of Iraqis killed during security operations in UK-controlled territory. The deaths occurred between May 2003 and June 2004, while the UK and the US were occupying powers who had taken over some functions normally provided by the sovereign government.107 These included maintaining security and supporting civil jurisdiction. The applicants alleged that there had been a breach of the procedural obligation under Article 2 as there had been no effective, independent investigation. The UK Government disputed the jurisdictional reach of the ECHR, contending that it did not apply outside British military bases. The applicants lost in the domestic courts, and took the case to Strasbourg. The ECtHR held that the UK was in effective control of the territory, and consequently a jurisdictional link had been established: 149. It can be seen, therefore, that following the removal from power of the Ba’ath regime and until the accession of the Interim Government, the United Kingdom (together with the United States) assumed in Iraq the exercise of some of the public powers normally to be exercised by a sovereign government. In particular, the United Kingdom assumed authority and responsibility for the maintenance of security in South-East Iraq. In these exceptional circumstances, the Court considers that the United Kingdom, through its soldiers engaged in security operations in Basrah during the period in question, exercised authority and control over individuals killed in the course of such security operations, so as to establish a jurisdictional link between the deceased and the United Kingdom for the purposes of art.1 of the Convention.

107 The UK and US established the Coalition Provisional Authority, which handed over full authority to the Iraqi Interim Government on 28 June 2004.

130 Peter Skelton QC, Caroline Cross and Kate Beattie

IV. Guidance on the Applicability of Article 2 There are a number of circumstances where the engagement of Article 2 is automatic (see below). However, many cases are borderline. In those cases, for Article 2 to be engaged it needs to be shown that there has been: (1) A suspicious death in any form of state detention (including mental health hospitals and prisons); or (2) An arguable breach of either: a. The general/systemic duty; or b. The operational duty. The ‘possibility’ of state complicity in a death suffices to trigger the procedural duty.108 Further, it is not necessary to show that, but for the failure or omission by the state that the death would not have occurred. It suffices to show that, but for the failure to take reasonable measures, there was ‘a real prospect of avoiding death’.109 Article 2 is considered in more detail in the second Part of this book, discussing specific inquests. For present purposes a list has been provided, divided by topic, of the relevant principles and cases. For more detail on the cases please see the corresponding chapters. Where the case is not contained elsewhere in this book, a full summary has been given here.

A. Automatic Cases Cases where the engagement of Article 2 is automatic: (1) Death from the use of force by a state agent McCann, paragraph 161 (2) Self-inflicted death in state custody Keenan, paragraph 90; R (Sacker) v West Yorkshire Coroner [2004] 1 WLR 796, paragraph 12; R(L), paragraph 59; Catherine Smith, paragraph 98 (3) Killing by a third party in state custody Amin, paragraphs 30–39 (4) Self-inflicted death in psychiatric detention Savage, paragraph 49 (5) Self-inflicted death of a military conscript Mosendz v Ukraine App no 52013/08 (ECtHR, 17 January 2013), paragraph 94; Kilinç v Turkey App no 40145/98 (ECtHR, 7 June 2005) (unreported)

108 109

Letts (n 87) para 74. Court of Appeal in R (Long) v Secretary of State for Defence [2015] EWCA Civ 770, para 32.

Article 2 Inquests 131

B. Borderline Cases—General Principles (i) Slimani v France (2006) 43 EHRR 49 Keywords: Article 2, human rights, prisoners In Slimani, the ECtHR emphasised that where there is a suspicious death in any form of state custody, this should raise concerns as to whether the state has breached its responsibility to protect the right to life. The applicant’s late partner, Mr Sliti, was a Tunisian national who had been committed to a psychiatric hospital several times both in Tunisia and France. He was sentenced to four years’ imprisonment and permanently excluded from the French territory by a French criminal court. The order permanently excluding him from French territory was not enforced immediately after he had served his prison sentence. In 1998 Mr Sliti set fire to the applicant’s house and threatened to throw himself out of the window with their 18-month-old son. He was sentenced to one year’s imprisonment in September 1998. He was subsequently compulsorily detained in hospital and transferred to prison. He was then transferred to a detention centre prior to deportation to Tunisia. On the morning of 26 May 1999 Mr Sliti twice refused to take his medicine. He was not examined by a doctor despite having been in a state of extreme agitation. At about 10.30am he became ill and collapsed. After being alerted by other detainees, police officers quickly arrived on the premises and turned him onto his side in the recovery position before summoning a doctor who gave him first aid. Mr Sliti was diagnosed as having fallen into a coma. He was given medical treatment on the premises and was taken to hospital, but he died that afternoon. The applicant’s main complaint against the authorities was that they had detained Mr Sliti in a place that was not equipped with the medical facilities or care that his state of health required, and that they had failed to administer the appropriate treatment when he fell ill. The Court considered the state’s positive obligations to take appropriate steps to safeguard the lives of those under state detention applied to Mr Sliti’s case: 27. The Court reiterates that the first sentence of Article 2 enjoins the Contracting States not only to refrain from the taking of life ‘intentionally’ or by the ‘use of force’ disproportionate to the legitimate aims referred to in sub-paragraphs (a) to (c) of the second paragraph of that provision, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see, inter alia, L.C.B. v. the United Kingdom, judgment of 9 June 1998, Reports of Judgments and Decisions 1998 III, § 36, and Keenan v. the United Kingdom, no. 27229/95, § 89, ECHR 2001 III). The obligations on Contracting States take on a particular dimension where detainees are concerned since detainees are entirely under the control of the authorities. In view of their vulnerability, the authorities are under a duty to protect them. The Court has accordingly found, under Article 3 of the Convention, that, where applicable, it is incumbent on the State to give a convincing explanation for any injuries suffered in custody (see, for example, Ribitch v. Austria, 4 December 1995, Series A no. 336, § 34, and Salman v. Turkey [GC], no. 21986/93, § 99, ECHR 2000-VII) or during other forms of deprivation of liberty (see, for example, Keenan, cited above, § 91, and Paul and Audrey Edwards v. the United Kingdom, 14 March 2002, no. 46477/99, § 56), which obligation is particularly stringent where that individual dies (ibid.). Having also held that Article 3 of the Convention requires the State to protect the health and physical well-being of persons deprived of their liberty, for example by providing them with the requisite

132 Peter Skelton QC, Caroline Cross and Kate Beattie medical assistance (see, inter alia, Keenan, cited above, § 111; Mouisel v. France, no. 67263/01, § 40; ECHR 2002-IX; and McGlinchey and Others v. the United Kingdom, no. 50390/99, § 46, ECHR 2003-…), the Court considers that, where a detainee dies as a result of a health problem, the State must offer an explanation as to the cause of death and the treatment administered to the person concerned prior to their death. As a general rule, the mere fact that an individual dies in suspicious circumstances while in custody should raise an issue as to whether the State has complied with its obligation to protect that person’s right to life.

The Court went on to uphold the Government’s preliminary objection to the substantive complaint under Article 2 of failure to exhaust domestic remedies, on the grounds that the applicant had failed to lodge a criminal complaint for homicide together with an application to join the proceedings as a civil party or to bring an action in the administrative courts to establish the liability of the state. However, the ECtHR held that there had been a violation of the procedural limb of Article 2 because Mr Sliti died in suspicious circumstances in state detention, which should have prompted an investigation that involved the next of kin. 43. The Court has already observed that the applicant could have lodged a criminal complaint and applied to join the proceedings as a civil party … 44. Nevertheless, as the Court has already stressed, whenever a person in detention dies in suspicious circumstances, Art.2 requires the authorities to conduct an ‘effective and official investigation’ of their own motion as soon as the case comes to their attention to enable the causes of death to be established and anyone responsible for the death to be identified and punished. The authorities cannot leave it to the initiative of the deceased’s next-of-kin either to lodge a formal complaint or to take responsibility for any investigative procedure. To that should be added that such an investigation cannot be described as ‘effective’ unless, among other things, the victim’s next-of-kin are involved in the procedure to the extent necessary to safeguard their legitimate interests. In the Court’s opinion, requiring a deceased’s next-of-kin to lodge a criminal complaint together with an application to join the proceedings as a civil party if they wish to be involved in the investigation proceedings contravenes these principles. It considers that as soon as the authorities become aware of a death in suspicious circumstances, they should carry out an investigation of their own motion in which the deceased’s next-of-kin should automatically be involved.

C. Categories of Death Where Article 2 May Be Engaged Healthcare deaths: (1) General or systemic duty to provide reasonable facilities, staffing and systems for the protection of life Humberstone, paragraph 58; Savage, para 69; R (Moss) v HM Coroner for North and South Districts of Durham and Darlington [2008] EWHC 2940 (Admin), paragraph 31 (2) Operational duty to protect informal psychiatric patients from a real and immediate risk of suicide Rabone, paragraph 34

Article 2 Inquests 133

(3) Ordinary negligence—that is, errors of judgment or negligent co-ordination among health professionals in the treatment of a patient—will not engage Article 2 Powell v United Kingdom (2000) 20 EHRR CD 362, paragraph 1; Humberstone, paragraphs 53 and 58; Savage, paragraphs 45 and 70 However, this principle has recently been successfully challenged in the ECtHR Fernandez v Portugal App no 56080/13 (ECtHR, 15 December 2015)110 (4) Gross negligence may engage Article 2 if it is sufficient to sustain a charge of manslaughter R (Takoushis) v HM Coroner for Inner North London [2006] 1 WLR 461, paragraphs 95–96; R (Khan) v Secretary of State for Health [2004] 1 WLR 971, paragraph 64 (5) Although the distinction between gross and ordinary negligence has been doubted Moss v HM Coroner for the North and South Districts of Durham and Darlington [2008] EWHC 2940 (Admin), para 24 Police: (1) Duty to protect identified persons from a real and immediate risk to life Osman, paragraph 116; Van Colle, paragraph 76 (2) Duty may extend to the protection of unidentified or unidentifiable individuals Sarjantson v Chief Constable of Humberside [2013] EWCA Civ 1252, [2014] QB 411, paragraphs 22–23 Local authorities: (1) Duty to protect vulnerable children if there is a real and immediate risk to life (ie the Osman test is satisfied) Kent County Council, paragraphs 44–47 (2) Duty to protect residents of a care home from a reduction in life expectancy resulting from closure of the home Watts, paragraph 88

110 This decision (currently only available in French) is highly controversial as it is a departure from Powell, Savage and Rabone. The parties had three months from the date of judgment to appeal to the Grand Chamber. For a case summary and commentary see Jeremy Hyam, ‘Mere negligence may breach Art 2 in NHS hospital cases’, UK Human Rights Blog, 12 January 2016 http://ukhumanrightsblog.com/2016/01/12/jeremy-hyam-mere-negligencemay-breach-art-2-in-nhs-hospital-cases/ (15 January 2016). See further Chapter 17, Medical Inquests.

134 Peter Skelton QC, Caroline Cross and Kate Beattie

(3) Duty to protect residents from the risk of an explosion at a rubbish tip Öneryildiz, paragraph 101 (4) Duty to protect residents from the risks inherent in the operation of a reservoir Kolyadenko v Russia (2013) 56 EHRR 2, paragraph 166 (5) Duty to protect the public from falling branches Ciechońska v Poland (2011) App no 19776/04 (unreported), paragraph 69 (6) Duty to take steps to prevent suicide of person being evicted Mammadov v Azerbaijan (2014) 58 EHRR 18, paragraph 116 Courts and tribunals: (1) Duty to protect witnesses from a real and immediate risk to life Officer L, paragraphs 20–21; Officers C, D, H & R, paragraph 24 Armed forces: (1) Duty to protect soldiers from friendly fire, inadequate provision of equipment, bad planning in respect of deployment, or inadequate appreciation of risk Susan Smith, paragraph 63; Catherine Smith, paragraph 105 (2) But there is a margin of appreciation given to the domestic authorities in respect of the military and technical aspects of operations Finogenov v Russia App nos 18299/03 and 27311/03 (ECtHR, 20 December 2011), paragraph 213; Susan Smith, paragraph 75 (3) The Court will be slow to question operational decisions made on the ground, or procurement decisions based on political judgment Susan Smith, paragraphs 64–65 (4) Article 2 does not arise when personnel are exposed to ordinary occupational risk even if inherently dangerous, but it may be engaged if death caused by insufficient state systems, regulations or control Stoyanovi, paragraph 61; Long (CA), paragraph 13 (5) Isolated/ occasional negligent errors of judgment or co-ordination resulting in a higher risk of death will not engage Article 2, but the routine acceptance of unsafe practices will trigger Article 2 Long (CA), paragraphs 27–29

Article 2 Inquests 135

(6) Courts should bear in mind the operational choices which must be made in terms of priorities and resources. They should not impose a disproportionate and unrealistic obligation on the state (ie this state) to investigate itself Osman, paragraph 116; Susan Smith, paragraph 73; Giuliani and Gaggio v Italy (2012) 54 EHRR 10, paragraphs 244–51 (7) States are under a duty to protect civilians at risk from military operations Isayeva v Russia (2005) 41 EHRR 38, paragraphs 175–76

136

8 Interested Persons DAVID MANKNELL

I. Overview As coroners regularly emphasise at inquests, there are no parties to an inquest and no ‘sides’, as it is not an adversarial process. There are however ‘interested persons’ who are recognised by the Court and have certain rights in relation to their participation at the inquest. The concept of ‘interested persons’ in section 47 of the Coroners and Justice Act 2009 (CJA 2009) replaces that of the ‘properly interested person’ that appeared in rule 20 of the Coroners Rules 1984. The list of those deemed to be ‘interested persons’ under section 47 is in line with but not identical to the list of persons entitled to examine witnesses under the old rule 20. The ‘sweep up’ provision in section 47(2)(m), ‘any other person who the senior coroner thinks has a sufficient interest’ is likely to be interpreted in a similar manner to that in which ‘any other person who, in the opinion of the coroner, is a properly interested person’ under rule 20, and the existing case law is likely to remain relevant in that respect. The leading case is R v Greater London (South District) Coroner ex parte Driscoll.1 The word ‘interested’ should not be given a narrow or technical meaning. It is not confined to a proprietary right or a financial interest in the estate of the deceased, and can cover a variety of concerns about or resulting from the circumstances in which the death occurred.2 An applicant for interested person status must show that they have more than ‘idle curiosity’, and the mere fact of being a witness will rarely be enough.3 What must be shown is that the person has a genuine desire to participate beyond merely giving relevant evidence.4 The categories of person in the other sub-paragraphs are to be used as a guide to the type of person that may qualify under the residual category.5 When deciding whether to grant the status of interested person, a coroner is not entitled to take into account any

1 R v Greater London (South District) Coroner ex parte Driscoll CO/2609/93, (1995) 159 JP 45. See also the more recent approval of Driscoll by Jackson J in R (on the application of Southall Black Sisters) v HM Coroner for West Yorkshire [2002] EWHC 1914 (Admin). 2 Driscoll (n 1) Pill LJ. 3 ibid Kennedy LJ. 4 ibid. 5 R. v Coroner of the Queens Household Ex p. Al-Fayed (Interested Person) (2001) 58 B.M.L.R. 205; [2000] Inquest L.R. 50.

138 David Manknell

understandable desire to avoid unpleasantness or ill-feeling at the inquest. It is irrelevant that, for example, members of the deceased’s family may not wish a particular person to be recognised as an interested person.6 A promise made by an individual to the deceased to ensure that the circumstances of his death were fully and properly investigated has been held not to be sufficient.7 It is not helpful to look to the law on standing in judicial review proceedings as an analogy for interested person status.8 The fact that a potentially interested person may wish to bring a damages claim arising out of the death neither qualifies nor disqualifies them from interested person status.9 In an appropriate case, a public interest organisation can be recognised as an interested person, even if they have no connection with or specific knowledge of the deceased.10 A Chief Constable has a right to participate under section 47(2)(i), in circumstances where it appears that a person has or may have committed a homicide offence involving the death of the deceased, or a related offence (other than a service offence). Where that right is exercised, his participation is in order to pursue his functions, including the detection of crime, and within the ambit of the inquest, it is permitted for him to elicit evidence which may then provide grounds for charges to be brought. There are certain specific rights given to ‘interested persons’ directly in the 2013 Rules. Those include a right to be given notification of the inquest hearing arrangements (rule 9) and of any alteration in the arrangements (rule 10), and certain rights in respect of disclosure (rule 13, see Chapter 14 of this book). Most importantly, they have a right to examine witnesses under rule 19 (see Chapters 11 and 16). In the Coroners (Investigations) Regulations 2013 interested persons are also given certain additional rights, including a right to be present at a post-mortem (regulation 13(4)). Regulation 23 of the Investigation Regulations also confirms that the obligation in Part 3 of the 2013 Rules as to the disclosure of documents to interested persons applies ‘at any time during the course of any investigation’.

II. Legislation and Other Sources Coroners and Justice Act 2009 47. ‘Interested person’ (1) This section applies for the purposes of this Part. (2) ‘Interested person’, in relation to a deceased person or an investigation or inquest under this Part into a person’s death, means— (a) a spouse, civil partner, partner, parent, child, brother, sister, grandparent, grandchild, child of a brother or sister, stepfather, stepmother, half-brother or half-sister; 6

Driscoll (n 1) Kennedy LJ. Allman v HM Coroner for West Sussex [2012] EWHC 534 (Admin); (2012) 176 JP 285. Driscoll (n 1) Kennedy LJ. 9 Platts v HM Coroner for South Yorkshire (East District) and Chief Constable of South Yorkshire Police [2008] EWHC 2502 (Admin). 10 Re Northern Ireland Human Rights Commission [2002] UKHL 25. 7 8

Interested Persons 139 (b) (c) (d) (e) (f) (g)

(h) (i) (j) (k) (l)

(m)

a personal representative of the deceased; a medical examiner exercising functions in relation to the death of the deceased; a beneficiary under a policy of insurance issued on the life of the deceased; the insurer who issued such a policy of insurance; a person who may by any act or omission have caused or contributed to the death of the deceased, or whose employee or agent may have done so; in a case where the death may have been caused by— (i) an injury received in the course of an employment, or (ii) a disease prescribed under section 108 of the Social Security Contributions and Benefits Act 1992 (c. 4) (benefit in respect of prescribed industrial diseases, etc), a representative of a trade union of which the deceased was a member at the time of death; a person appointed by, or representative of, an enforcing authority; where subsection (3) applies, a chief constable; where subsection (4) applies, a Provost Marshal; where subsection (5) applies, the Independent Police Complaints Commission; a person appointed by a Government department to attend an inquest into the death or to assist in, or provide evidence for the purposes of, an investigation into the death under this Part; any other person who the senior coroner thinks has a sufficient interest.

(3) This subsection applies where it appears that a person has or may have committed— (a) a homicide offence involving the death of the deceased, or (b) a related offence (other than a service offence). (4) This subsection applies where it appears that a person has or may have committed— (a) the service equivalent of a homicide offence involving the death of the deceased, or (b) a service offence that is a related offence. (5) This subsection applies where the death of the deceased is or has been the subject of an investigation managed or carried out by the Independent Police Complaints Commission in accordance with Part 3 of Schedule 3 to the Police Reform Act 2002 (c. 30), including that Part as extended or applied by or under any statutory provision (whenever made). … (7) For the purposes of this section, a person is the partner of a deceased person if the two of them (whether of different sexes or the same sex) were living as partners in an enduring relationship at the time of the deceased person’s death.

The Coroners (Investigations) Regulations 2013 13.— Notification of post-mortem examination (1) Where a coroner has requested a suitable practitioner to make a post-mortem examination, the coroner must notify the persons or bodies listed in paragraph (3) of the date, time and place at which that post-mortem examination is to be made. (2) A coroner need not give such notification, where it is impracticable or where to do so would cause the post-mortem examination to be unreasonably delayed.

140 David Manknell (3) The persons to be notified are— (a) the next of kin or the personal representative of the deceased or any other interested person who has notified the coroner in advance of his or her desire to be represented at the postmortem examination; (b) the deceased’s regular medical practitioner, if he or she has notified the coroner of his or her desire to be represented at the post-mortem examination; (c) if the deceased died in hospital, that hospital; (d) if the death of the deceased may have been caused by an accident or disease which must be reported to an enforcing authority, to that enforcing authority or the appropriate inspector or representative of that authority; (e) a Government department which has notified the coroner of its desire to be represented at the examination; and (f) if the chief officer of police has notified the coroner of his or her desire to be represented at the examination, the chief officer of police. (4) Any of the persons or bodies listed in paragraph (3) are entitled to be represented at a postmortem examination by a medical practitioner, or if they are a medical practitioner, may attend themselves. … Part 6 Disclosure and Provision of Information 23. Part 3 of the Coroners (Inquests) Rules 2013 applies to the disclosure of documents to an interested person made by the coroner at any time during the course of an investigation.

The Coroners (Inquests) Rules 2013/1616 The Coroners (Inquests) Rules 2013/1616 include the following provisions, in rules 9 and 10 (notification of inquest hearing arrangements), rule 13 (disclosure to interested persons) and rule 19 (entitlement to examine witnesses): 9.— Notification of inquest hearing arrangements (1) A coroner must notify the next of kin or personal representative of the deceased of the date, time and place of the inquest hearing within one week of setting the date of the inquest hearing. (2) A coroner must notify any other interested persons who have made themselves known to the coroner of the date, time and place of the inquest hearing within one week of setting the date of the inquest hearing. (3) Where an inquest hearing is to be held, the coroner must make details of the date, time and place of the inquest hearing publicly available before the inquest hearing commences. 10.— Coroner to notify interested persons of any alteration of arrangements for an inquest hearing (1) Where the date, time or place of the inquest hearing is altered the coroner must notify the next of kin or personal representative of the deceased, and any other interested persons who have made themselves known to the coroner, of the alteration within one week of the decision to alter.

Interested Persons 141 (2) The coroner must make the details of any alteration made under paragraph (1) publicly available within one week of the decision to alter. … 13.— Disclosure of documents at the request of an interested person (1) Subject to rule 15, where an interested person asks for disclosure of a document held by the coroner, the coroner must provide that document or a copy of that document, or make the document available for inspection by that person as soon as is reasonably practicable. (2) Documents to which this rule applies include— (a) any post-mortem examination report; (b) any other report that has been provided to the coroner during the course of the investigation; (c) where available, the recording of any inquest hearing held in public, but not in relation to any part of the hearing from which the public was excluded under rule 11(4) or (5); (d) any other document which the coroner considers relevant to the inquest. … 19.— Entitlement to examine witnesses (1) A coroner must allow any interested person who so requests, to examine any witness either in person or by the interested person’s representative. (2) A coroner must disallow any question put to the witness which the coroner considers irrelevant.

III. Cases A. General Guidance (i) R (Driscoll) v Greater London (South District) Coroner CO/2609/93, (1995) 159 JP 45 Keyword: Interested persons The applicant was the sister of the deceased, and the coroner had ruled that she was not a properly interested person for the purposes of rule 20 of the 1984 Rules, on the basis that relations between the deceased’s wife and the applicant had been poor. The applicant sought judicial review of the decision, and argued that she was the closest living relative and that the deceased had been staying with her for the four weeks before his death. Under rule 20 (unlike the new section 47) a sibling was not as of right entitled to the status of properly interested person. The application was allowed, and Kennedy LJ indicated that close blood relations who were in contact with the deceased before he died should be interested persons for the purposes of rule 20, and that the coroner had been wrong to take into account the relationship between the applicant and the deceased’s wife. In deciding in the sister’s favour, Kennedy LJ and Pill J gave guidance on the approach to be adopted:

142 David Manknell

Kennedy LJ: Nevertheless it seems reasonable to conclude that close blood relations of a deceased who were in contact with him immediately before he died would have a genuine and proper interest in participating in the process of ascertaining how he died. … It might have been different if there was compelling evidence of a frivolous or vexatious interest, but that is not even suggested. Mr Owen also submitted that the coroner should have allowed the sisters to participate so as to put the other point of view from that likely to be advanced by representatives of the police. I find that less persuasive because the coroner is conducting an inquest, which as its name suggests is not adversarial, but it is a public inquiry and there is a public interest in not shutting out anyone who would seem to have a proper interest. … In para 8 of his first affidavit Dr Dolman has helpfully set out how he came to the conclusion that is now being challenged. He says: ‘I was aware that the deceased’s widow was to be present at the inquest and might be represented as an interested person under Rule 20(2)(a). I knew of the serious conflict between the widow, Mrs Swan, and Pamela and Valerie Driscoll. They were not on speaking terms. I had learnt that the applicant Pamela Driscoll and her sister Valerie had not been close to Peter Swan the deceased despite what had been suggested to me. Peter Swan’s close family relationship had been with his other sister Janet. I took into account the apparent motive for the applicant and her sister’s request to be interested parties and be represented at the inquest. …’ In my judgment that reveals that the route by which the coroner arrived at his decision was so seriously flawed that the decision itself ought not to be allowed to stand. In the first place the coroner was in no position to form a judgment in relation to the relationship which had existed between the deceased and his sisters prior to the deceased’s death, and which now existed between those same sisters and the widow. He merely had before him information which at certain points appeared to conflict. In that context I note that in his second decision letter of 11 September 1993 the coroner refers to information confidential to himself, but there is no suggestion in the affidavits which he has placed before this Court of any information going beyond that set out in the widow’s statement of 21 September 1993. Clearly the coroner did form a judgment and then had considerable regard to it. Indeed, as he himself says, he regarded it as crucial, but because such a judgment was premature it was an irrelevant consideration. Next the coroner had regard to the apparent motive of the sisters to be interested parties and to be represented at the inquest. I assume that to be a reference back to the earlier para in his affidavit in which he speaks of his interpretation of the statement made by Pamela Driscoll at the time of the deceased’s death. As I have said, we have not seen that statement, which if it contains anything of real significance is a little surprising, but in any event it could not assist the coroner as to Valerie’s motive. Finally the coroner says that he was assisted by reading the Times report of the Court of Appeal judgment in R v Poplar Coroner ex parte Doris Thomas 23 December 1992 [sic] which neither side has suggested to us has any relevance. Of course this Court will be very slow to interfere with a coroner’s expression of opinion as to who is a properly interested person, for the purposes of r 20(2)(h), but when it is apparent that in forming that opinion a coroner has taken irrelevant matters into account and so has reached a conclusion at which no reasonable coroner properly instructing himself could have arrived, then his

Interested Persons 143 decision cannot stand. In my judgment that is the position in this case. I would quash the decision, but I would not make the declaration sought. In my judgment it must be for the coroner in the light of this judgment to form his opinion afresh. In the course of the hearing we explored with counsel whether it is possible to define in general terms who for the purposes of r 20(2)(h) should be regarded as ‘a properly interested person’. I doubt if such a definition is possible, because circumstances will vary so much and, as Mr Cooper pointed out, ‘properly interested person’ are ordinary English words to which the coroner must be allowed to give an ordinary meaning (see R v East Sussex Coroner ex parte Healy [1989] 1 All ER 30, [1988] 1 WLR 1194). I doubt if, as Mr Owen tentatively suggested, it helps to define interest for the purposes of r 20(2)(h) by looking at what constitutes locus standi for the purposes of judicial review. Indeed casting an eye over the earlier part of r 20(2) shows that it lists many as having a right to be heard who in any given case may have no interest in exercising that right, so in forming his opinion for the purposes of r 20(2)(h) the coroner has simply got to look at the rule as a whole and at the circumstances of the instant case. For my part I think that he may be assisted by Mr Owen’s submission in reply that a properly interested person must establish more than idle curiosity. The mere fact of being a witness will rarely be enough. What must be shown is that the person has a genuine desire to participate more than by the mere giving of relevant evidence in the determination of how, when and where the deceased came by his death. He or she may well have a view he wants to put to the witnesses, but there is no harm in that. Properly controlled it should assist the inquisitorial function. Because the function is inquisitorial I doubt if the Coroner when forming an opinion for the purposes of r 20(2)(h) in the case of a near relative of the deceased is likely to be much assisted by whether other members of the family propose to exercise their rights pursuant to r 20(2)(a), and in many cases, despite Mr Owen’s reservations, I believe that it should be possible for the Coroner to form an opinion before the day of the hearing. It will certainly assist relatives and representatives if he is able to do so. As was pointed out in the Brodrick report, if the Coroner forms the opinion that the person seeking to be heard is a properly interested person his discretion is at an end. That person must then be afforded the rights set out in r.20(1).

Pill LJ: I agree. I add a few words only on the question of the meaning of the expression ‘properly interested person’ in r 20(2)(h) on which subject the submissions before this Court have been fuller than those in earlier cases. The word ‘interested’ should not be given a narrow or technical meaning. It is not confined to a proprietary right or a financial interest in the estate of the deceased. It can cover a variety of concerns about or resulting from the circumstances in which the death occurred. The word ‘interested’ is not used in the rule to describe or identify the persons in the categories in r 2 (a) to (g) but it may be said that they can each have an interest in the sense contemplated. It arises in the case of a parent, child and spouse, out of the nature and closeness of the personal relationship to the deceased in each category. The personal representative has a legal duty in relation to the estate of the deceased. Beneficiaries under insurance policies and insurers may have a financial interest in the circumstances of the death. Someone who may have caused or contributed to the death has an obvious concern. Though of differing natures, the concerns of the deceased’s trade union, the chief officer of police and the Government are readily understood, though the breadth of the wording in paragraph (f) is perhaps surprising. Of course there will be cases in which persons in some of those categories do not in fact have an interest in matters relevant under r 36 in the particular case. However, all those persons are capable of having an interest in the sense in which, in my judgment, the word is then used in the additional category, category (h), included at the end of the rule. Categories (a) to (g) do provide a guide to the types of interest envisaged in paragraph (h).

144 David Manknell

(ii) Platts v HM Coroner for South Yorkshire (East District) and Chief Constable of South Yorkshire Police [2008] EWHC 2502 (Admin) Keyword: Interested persons The High Court overturned the coroner’s decision that the claimant was not entitled to interested person status. The claimant was the deceased’s former girlfriend. She had lived with him for over a year and they had separated about a month before his suicide. 40. [The Coroner] refers to some of the evidence and … reminded himself of a citation from a judgment of Dillon LJ that it was not the function of a coroner’s inquest to enable a person said to be an interested party to use this forum to gather evidence to assist a claim for damages. 41. … I am satisfied that, whilst the coroner did overstate the extent of the evidence in that respect— the only affirmative answer she had given was that she would claim damages—the coroner cannot be criticised in respect of that slip, because it is clear that he did identify two distinct reasons why she wanted to participate in the inquest. Furthermore, he was right to say that if the only reason for wishing to participate was to gather evidence to assist her claim for damages then that would not, of itself, be sufficient to make her a properly interested party, although it would not disqualify her from being such an interested party if there were other reasons for participating which did make her a properly interested party. 42. The focal point of the decision is his conclusion that, because he had found that she did not fall within rule 20(2)(a) she became a ‘stranger to the inquest’ and that mere feelings of guilt about having allegedly let down her former boyfriend, even if well-founded, would not be sufficient to enable her to participate in the inquest. 43. In my judgment, and bearing in mind the caution with which this court should approach an invitation to interfere with an exercise of judgment which the rules impose on a coroner, this coroner has failed totally to engage with a number of issues. First, although he had found that she had ceased to be the partner of the deceased, this had occurred very shortly before these events and his mental state was central to the break-up of the relationship. Second, the deceased had, despite the break-up of the relationship, returned to live at her home, apparently with a view to re-starting the relationship, but left the home because of his increasingly bizarre behaviour within a few days of his death. Third, the increasingly bizarre behaviour which caused him to leave the claimant’s home culminated in him stabbing himself, being admitted to hospital, repeatedly indicating either that he wished to die or to kill himself, resulted in erratic behaviour causing him to be arrested, detained, appear before the court and eventually, having been released, to walk in front of a heavy goods vehicle. Fourth, he failed to consider whether the very close connection with the claimant, that behaviour and that outcome, was such as to make her a properly interested person, notwithstanding the fact that she did not at the time fall within rule 20(2)(a). The coroner seems, erroneously, to have gone directly from his conclusion on rule 20(2)(a) to an assertion that she thereupon became a ‘stranger’ to the inquest even though he accepted that she genuinely had more than idle curiosity as her motivation. Further, he seemed to isolate the question of her feelings of guilt about his death as being the only ingredient in forming her wish to question the system whereas he ought to have considered whether the whole of her relationship with the deceased was such as to qualify her under rule 20(2)(h). 44. In my judgment, the coroner’s failure to engage with any of these issues and his erroneous approaches which I have described mean that he failed to have regard to highly relevant matters so that his opinion was reached in a way which was unlawful in a Wednesbury sense. In my judgment, borrowing the words of Pill J, had the coroner reminded himself that the word ‘properly’ imports

Interested Persons 145 not only the notion that interest must be reasonable and substantial and not trivial or contrived, but also that the concern of the person seeking to intervene is one genuinely directed to the scope of an inquest as defined, the only reasonable conclusion to which the coroner could have come was that the claimant’s interest was reasonable and substantial, not trivial or contrived. That, coupled with his conclusion that her wish to participate in the inquest was genuine and directed to a proper motive—namely questioning whether the system had let down the deceased—leads me to conclude that he could only reasonably have come to the conclusion that she did fall within rule 20(2)(h).

B. Involvement of Chief Constable where a Relevant Offence may have been Committed (i) R v HM Coroner for Derby and South Derbyshire ex parte Hart CO/3882/98 (2000) 164 JP 429 Keywords: Interested persons, criminal law The deceased met his death in circumstances initially believed to be suicide. Subsequently, the police investigated further, including within their investigation the applicant, who was the main beneficiary of a substantial estate under the deceased’s will. The police were permitted to put extensive questions to the applicant and his wife during the inquest. It was alleged that the coroner had erred in making the Chief Constable a properly interested person, as this had turned the inquest into an adversarial process aimed at further investigation of possible criminal charges. It was said that the coroner knew that the police ‘intended to use the inquest for a forbidden purpose, namely as a stepping stone to a prosecution of the applicant’. The Court (Newman J) held that the chief constable was a proper party to the inquest and entitled, along with the other interested parties, to ask questions of witnesses going to the purpose of the inquest. 90. … It may be pertinent to note at this stage what Kennedy LJ had to say in ex parte Driscoll about the role of interested persons, which was the issue raised in that case. From page 56F: ‘For my part I think that he may be assisted by Mr Owen’s submission in reply that a properly interested person must establish more than idle curiosity. The mere fact of being a witness will rarely be enough. What must be shown is that the person has a genuine desire to participate more than by the mere giving of relevant evidence in the determination of how, when and where the deceased came by his death. He or she may well have a view he wants to put to the witnesses, but there is no harm in that. Properly controlled it should assist inquisitorial function.’ 91. As to the chief officer of police, his entitlement was not based upon subparagraph (d) of Rule 21, but upon (g). According to the Rules he was bound to be represented by counsel or solicitor. In the event he was represented by Mr Aidan Marron QC. Unusual as it might be to instruct a QC, it is a matter for the Chief Constable and not the Coroner whether leading or junior counsel is to be instructed on behalf of an interested party. 92. In my judgment, it is plain that insofar as the Rules have accorded the Chief Officer of Police an entitlement to appear, subject of course to the Coroner’s discretion, the purpose must be to enable him to pursue, by counsel, any duty or function forming part of his office as Chief Officer of Police or Chief Constable. It is not an occasion to pass upon all the functions of a Chief Officer of Police but an important one is to enforce the law of the land.

146 David Manknell

C. Insufficient Interest (i) R (Southall Black Sisters) v HM Coroner for West Yorkshire [2002] EWHC 1914 (Admin) Keyword: Interested persons The coroner in this case had refused to resume two inquests that had been adjourned, following the conclusion of criminal proceedings. The claimant was a support group that brought judicial review proceedings against the coroner’s decision not to resume the inquests. The coroner had refused to recognise them as an interested person, but had, ‘out of courtesy’, informed them of his decision not to resume the inquest. The claimant relied on the Northern Ireland Human Rights Commission case in seeking to be recognised as an interested party. Jackson J held that it had been a legitimate exercise of discretion for the coroner not to recognise the group as an interested person. Having referred back to the judgments in Driscoll and Northern Ireland Human Rights Commission, he concluded that: 53. In the light of these authorities let me return to the facts of the present case. It was a matter for the coroner to form an opinion whether the claimant was a properly interested person in relation to the two inquests before him. The fact that the claimant had virtually no connection with the family of the two deceased was a relevant consideration. The fact that the claimant had no direct knowledge of the circumstances in which the two deceased had died was a relevant factor, although not (in isolation) a conclusive one. It seems to me that the coroner in this case formed a perfectly rational decision which is not amenable to challenge by judicial review. 54. It should be noted that, if there were a resumed inquest into the two deaths, the coroner would be perfectly prepared to receive any relevant evidence from the claimant …

(ii) Allman v HM Coroner for West Sussex [2012] EWHC 534 (Admin), (2012) 176 JP 285 Keyword: Interested persons The case had unusual facts. The deceased died in a railway accident, but prior to his death he believed that he was the targeted victim of electromagnetic stalking and harassment, which adversely influenced his state of mind and thought processes. The claimant (a friend of the deceased) believed that harassment had caused the death and had established a charity opposing harassment. Prior to the death, the claimant and the deceased made an agreement in that the deceased had promised not to commit suicide and the claimant had promised that he would ensure that the authorities knew the killing was unlawful in the event of the deceased’s death. The coroner ruled that the police had fully investigated the possibility of third-party involvement and that no evidence of it was found. At a pre-inquest review hearing, in reliance on a witness statement and the agreement with the deceased, the claimant applied to examine witnesses as a properly interested person. The coroner ruled that the claimant did not have a sufficiently substantial interest in the inquest. The claimant sought judicial review of that decision.

Interested Persons 147

HHJ Anthony Thornton QC, sitting as a deputy judge of the High Court ruled that the coroner had been entitled to refuse the claimant properly interested person status: 25. It follows that the Deputy Assistant Coroner was well within her rights to refuse Mr Allman properly interested party status since his wish for that status was essentially to fulfil his promise to the deceased that he would ensure that the circumstances of his death would be fully and properly investigated by the police and the inquest process if he met his death in what might loosely be described as suspicious circumstances. Since there was no such evidence, there was no basis for his being accorded properly interested party status. Moreover, it is clear that all the relevant evidence that Mr Allman wished to place before the jury was in fact placed before the jury since it was relevant to their consideration of the deceased’s state of mind. Mr Allman’s wider evidence about electromagnetic weaponry in general and its propensities to kill and of its use by security forces in covert assaults on persons those forces wish to destroy or whose political protests they wish to neutralise was not relevant for the jury in this case to consider and, in any event, was prohibited from being adduced at this inquest by virtue of Rule 36 which precludes consideration of opinions and hypothetical situations which have no evidential link to the particular death being considered.

(iii) R (Al-Fayed (Interested Person)) v Coroner of the Queens Household (2001) 58 BMLR 205, [2000] Inquest LR 50 Keyword: Interested persons The issue was whether the father of a person who had died in a car accident together with the deceased should be treated as an interested party at the inquest into the latter’s death. Hidden J held not. Mr Mansfield [for the claimant] submits that when the court used the word ‘guide’, it was not intending to be definitive. He further submits that the coroner has not used Rule 20 as a guide but has, in fact, closed the categories to those mentioned in the rules. I am satisfied that the coroner’s very words in paragraph 11 of the letter of 26th March show that he has done no such thing. He specifically asked the question whether the person had any close similarity with any of the other categories. I am satisfied that those matters put forward by Mr Mansfield as establishing that connection, namely his submissions that the applicant’s son had a relationship with the Princess of Wales and that the applicant was the father of his son, are not matters which should have led the coroner to come to any other decision than the one he did. It follows that I can find no basis on which the coroner’s decision was wrong in law or Wednesbury unreasonable. There is nothing unlawful, irrational or procedurally improper about the method in which he came to his decision, or the decision itself. It follows that this application must therefore be refused.

D. Public Interest Groups (i) Re Northern Ireland Human Rights Commission [2002] UKHL 25 Keywords: Interested persons The Greater Belfast coroner had felt constrained by the provisions of the Northern Ireland Act 1998 not to allow the Northern Ireland Human Rights Commission to intervene in an

148 David Manknell

inquest following the fatal bomb explosion at Omagh, and the courts in Northern Ireland held that the coroner was correct. The House of Lords took a different view and held that the coroner had erred in law. The statutory provisions which were crucial in that case do not affect coroners’ inquests in England. Nevertheless the case does show that an organisation with no direct knowledge of the primary facts may in appropriate circumstances be permitted to intervene in an inquest. According to Lord Slynn of Hadley: 25. … The final decision lies with the court which can allow or refuse the Commission’s application to intervene, invite or not ask for help from the Commission as amicus curiae. The provision that the Commission shall promote understanding of human rights law has thus to be read in this context subject to the court’s control of its procedure. If the court wants or is willing to have such submissions the Commission has the capacity to make them as part of the function of promoting the understanding of human rights law, particularly if reference has to be made to some of the many decisions of the European Court of Human Rights. I am not troubled by the floodgates argument. The Commission must exercise caution in deciding whether a case is important enough to justify intervention or assistance; and whether there is a risk of particular parties or one party feeling that it is unfair that the Commission should come down on one side rather than the other in the legal argument. It is in the end for the court to decide these matters. The courts will only allow or invite assistance when they feel it necessary or helpful; with increasing knowledge particularly of cases in the European Court of Human Rights they may find it less necessary but this capacity to give assistance to the court is potentially valuable in achieving the purpose of the legislation In my view the existence of that capacity is reasonably incidental to its main express powers.

See also per Lord Woolf: 32. The practice of allowing third persons to intervene in proceedings brought by and against other persons which do not directly involve the person seeking to intervene has become more common in recent years but it is still a relatively a rare event. The intervention is always subject to the control of the court and whether the third person is allowed by the court to intervene is usually dependent upon the court’s judgment as to whether the interests of justice will be promoted by allowing the intervention. Frequently the answer will depend upon whether the intervention will assist the court itself to perform the role upon which it is engaged. The court has always to balance the benefits which are to be derived from the intervention as against the inconvenience, delay and expense which an intervention by a third person can cause to the existing parties.

9 Witnesses KATE BEATTIE

I. Overview The coroner has a wide discretion to decide which witnesses will be called.1 This includes whether expert witnesses will be called. The coroner is not obliged to call every witness who might have relevant evidence. However, the coroner should call sufficient witnesses to undertake a proper inquiry into the relevant issues.2 The need for expert evidence must be judged on the facts of each individual case.3 There is no absolute requirement to call independent expert evidence in order to comply with Article 2 of the European Convention on Human Rights (ECHR). If an interested person wishes a coroner to call expert evidence in any particular case, the interested person should identify the witness and the substance of the evidence which they may be able to give, so the coroner can decide whether or not it is appropriate.4 The courts have suggested that there may be circumstances where calling an independent expert witness instructed by the family would be appropriate as a matter of ‘practical justice’, even where it would not be unlawful for the coroner not to do so.5 The coroner is not obliged by law to produce a witness list in advance of an inquest hearing, but it is regarded good practice to do so.6 Under the 2009 Act, the coroner has a power to summon witnesses and to compel the production of evidence for the purposes of an investigation or inquest by way of written notice.7 The coroner does not have the power to require anything to be provided to him or her that a person could not be required to provide to a civil court, mirroring the restriction on many information gathering powers contained in other statutes.8 The coroner also does

1 R (Mack) v HM Coroner for Birmingham & Solihull [2011] EWCA Civ 712, [2011] Inquest LR 17; R (Chambers) v HM Coroner for Preston and West Lancashire [2015] EWHC 31 (Admin). 2 See R (Ahmed) v HM Coroner for South & East Cumbria [2009] EWHC 1653 (Admin), [2009] Inquest LR 177; Mack (n 1). 3 R (Goodson) v Bedfordshire and Luton Coroner [2004] EWHC 2931 (Admin), [2006] 1 WLR 432, [2005] 2 All ER 791, [2004] Inquest LR 226; Chambers (n 1). 4 R (Takoushis) v HM Coroner for Inner North London [2005] EWCA Civ 1440, [2006] 1 WLR 461, [2005] Inquest LR 185. 5 R (LePage) v HM Assistant Deputy Coroner for Inner South London [2012] EWHC 1485 (Admin). 6 R v HM Coroner for Lincoln, ex parte Hay QBD 19 February 1999, [2000] Inquest LR 1. 7 CJA 2009, Sch 5, para 1. 8 CJA 2009, Sch 5, para 2.

150 Kate Beattie

not have the power to require evidence to be provided if this would be incompatible with European Union (EU) law. The rules of law in relation to public interest immunity (PII) apply equally in relation to investigations or inquests. Whether this new rule excludes the High Court’s jurisdiction to uphold PII certificates is unclear (see further Chapter 13 on anonymity, protective measures and PII). The 2009 Act does not remove or alter the powers of a coroner under the common law to summon witnesses, require evidence to be given and punish for contempt of court. If a witness does not attend an inquest, having been summonsed, they may be committed for contempt of court.9 Schedule 6 to the Coroners and Justice Act 2009 (CJA 2009) sets out offences relating to witnesses and evidence and the penalties. The offences include failure to comply with a notice requiring evidence to be given or produced, altering evidence, preventing evidence from being given, destroying or concealing documents, and giving false evidence. The coroner may direct that a witness may give evidence from behind a screen when the coroner decides this would be likely to improve the quality of the witness’s evidence or is in the interests of justice or national security.10 When making a decision the coroner must consider all the circumstances of the case, for instance the views of the witness and the impact on the questioning of the witness if he or she is behind a screen. A coroner must allow any interested person who so requests to examine any witness either in person or by the interested person’s representative.11 A coroner must disallow any question put to the witness which the coroner considers irrelevant. Witnesses are not obliged to answer any question tending to incriminate them. Where it appears to the coroner that a witness has been asked such a question, the coroner must inform the witness that he or she may refuse to answer it.12 The witness is not entitled to complete immunity against further questioning, nor should a coroner impose a blanket prohibition against relevant questions being put to the witness.13 Unless the coroner determines otherwise, a witness at an inquest hearing must be examined first by the coroner, then by any interested person who has asked to examine the witness, and, if the witness is represented, lastly by the witness’s representative.14 Before admitting such written evidence the coroner must announce at the inquest hearing what the nature of the written evidence to be admitted is, the full name of the maker of the written evidence to be admitted in evidence, that any interested person may object to the admission of any such written evidence, and that any interested person is entitled to see a copy of any written evidence if he or she so wishes.15 A coroner may direct that all or parts only of any written evidence submitted under this rule may be read aloud at the inquest hearing. Conferring by police officers involved in a fatal shooting before they have given their first account of the incident may give rise to a violation of Article 2 ECHR.16

9

HM Coroner for Kent v Terrill [2000] Inquest LR 16. Coroners (Inquests) Rules 2013, r 18. 11 Coroners (Inquests) Rules 2013, r 19. 12 Coroners (Inquests) Rules 2013, r 22. 13 Lincoln (n 6). 14 Coroners (Inquests) Rules 2013, r 21. 15 Coroners (Inquests) Rules 2013, r 23. 16 R (Saunders and another) v Independent Police Complaints Commission [2008] EWHC 2372 (Admin), [2009] 1 All ER 379. 10

Witnesses 151

II. Legislation and Other Sources Coroners and Justice Act 2009, Schedule 5, Powers of Coroners, Paragraphs 1 and 2 See Chapter 12 on evidence.

Coroners and Justice Act 2009, Schedule 6, Offences, Part 2, Offences Relating to Witnesses and Evidence 6. A senior coroner, or (as the case may be) the Coroner for Treasure, may impose a fine not exceeding £1000 on a person who fails without reasonable excuse to do anything required by a notice under paragraph 1 of Schedule 5. 7. (1) It is an offence for a person to do anything that is intended to have the effect of— (a) distorting or otherwise altering any evidence, document or other thing that is given, produced or provided for the purposes of an investigation under this Part of this Act, or (b) preventing any evidence, document or other thing from being given, produced or provided for the purposes of such an investigation, or to do anything that the person knows or believes is likely to have that effect. (2) It is an offence for a person— (a) intentionally to suppress or conceal a document that is, and that the person knows or believes to be, a relevant document, or (b) intentionally to alter or destroy such a document. (3) For the purposes of sub-paragraph (2) a document is a ‘relevant document’ if it is likely that a person conducting an investigation under this Part of this Act would (if aware of its existence) wish to be provided with it. (4) A person does not commit an offence under sub-paragraph (1) or (2) by doing anything that is authorised or required— (a) by a senior coroner or the Coroner for Treasure, or (b) by virtue of paragraph 2 of Schedule 5 or any privilege that applies. (5) Proceedings for an offence under sub-paragraph (1) or (2) may be instituted only by or with the consent of the Director of Public Prosecutions. (6) A person guilty of an offence under sub-paragraph (1) or (2) is liable on summary conviction to a fine not exceeding level 3 on the standard scale, or to imprisonment for a term not exceeding 51 weeks, or to both. 8. (1) It is an offence for a person, in giving unsworn evidence at an inquest by virtue of section 45(2)(a), to give false evidence in such circumstances that, had the evidence been given on oath, he or she would have been guilty of perjury. (2) A person guilty of an offence under this paragraph is liable on summary conviction to a fine not exceeding £1000, or to imprisonment for a term not exceeding 51 weeks, or to both.

152 Kate Beattie (3) In relation to a person under the age of 14, sub-paragraph (2) has effect as if for the words following ‘summary conviction’ there were substituted ‘to a fine not exceeding £250’. (4) For the purposes of sub-paragraph (3), a person’s age is to be taken to be that which it appears to the court to be after considering any available evidence.

Coroners and Justice Act 2009, Schedule 6, Offences, Part 3, Miscellaneous 9. (1) The powers of a senior coroner or the Coroner for Treasure under paragraph 5 or 6 are additional to, and do not affect, any other power the coroner may have— (a) to compel a person to appear before him or her; (b) to compel a person to give evidence or produce any document or other thing; (c) to punish a person for contempt of court for failure to appear or to give evidence or to produce any document or other thing. (2) But a person may not be fined under paragraph 5 or 6 and also be punished under any such other power. 10. In relation to an offence committed before the commencement of section 281(5) of the Criminal Justice Act 2003 (c.44), a reference in this Schedule to 51 weeks is to be read as a reference to 6 months.

Coroners (Inquests) Rules 2013, Part 4, Management of the Inquest Hearing 17. Evidence by video link (1) A coroner may direct that a witness may give evidence at an inquest hearing through a live video link. (2) A direction may not be given under paragraph (1) unless the coroner determines that giving evidence in the way proposed would improve the quality of the evidence given by the witness or allow the inquest to proceed more expediently. (3) Before giving a direction under paragraph (1), the coroner must consider all the circumstances of the case, including in particular— (a) any views expressed by the witness or any interested person; (b) whether it would be in the interests of justice or national security to give evidence by video link; and (c) whether in the opinion of the coroner, giving evidence by video link would impede the effectiveness of the questioning of the witness. (4) A direction may be given under paragraph (1)— (a) on an application by the witness, or in the case of a child witness the parent or legal guardian of that witness; (b) on an application by an interested person; or (c) on the coroner’s own initiative.

Witnesses 153 18. Evidence given from behind a screen (1) A coroner may direct that a witness may give evidence at an inquest hearing from behind a screen. (2) A direction may not be given under paragraph (1) unless the coroner determines that giving evidence in the way proposed would be likely to improve the quality of the evidence given by the witness or allow the inquest to proceed more expediently. (3) In making that determination, the coroner must consider all the circumstances of the case, including in particular— (a) any views expressed by the witness or an interested person; (b) whether it would be in the interests of justice or national security to allow evidence to be given from behind a screen; and (c) whether giving evidence from behind a screen would impede the effectiveness of the questioning of the witness by an interested person or a representative of the interested person. (4) A direction may be given under paragraph (1)— (a) on the application by the witness, or in the case of a child witness the parent or legal guardian of that witness; (b) on an application of an interested person; or (c) on the coroner’s own initiative. 19. Entitlement to examine witnesses (1) A coroner must allow any interested person who so requests, to examine any witness either in person or by the interested person’s representative. (2) A coroner must disallow any question put to the witness which the coroner considers irrelevant. 20. Evidence given on oath or affirmation (1) A witness providing evidence at an inquest hearing shall be examined by the coroner on oath or affirmation subject to paragraph (2). (2) A child under the age of 14, or a child aged 14 or over who is considered by the coroner to be unable to understand the nature of an oath or affirmation, may, on promising to tell the truth, be permitted to give unsworn evidence. 21. Examination of witnesses Unless the coroner otherwise determines, a witness at an inquest hearing must be examined in the following order— (a) first by the coroner; (b) then by any interested person who has asked to examine the witness; and (c) if the witness is represented at the inquest, lastly by the witness’s representative. 22. Self incrimination (1) No witness at an inquest is obliged to answer any question tending to incriminate him or her. (2) Where it appears to the coroner that a witness has been asked such a question, the coroner must inform the witness that he or she may refuse to answer it.

154 Kate Beattie

Guidance Chief Coroner’s Guide to the Coroners and Justice Act 2009, September 2013. Chief Coroner’s Guidance No 12, ‘The Inquest Checklist’, 17 December 2013. Chief Coroner’s Law Sheet No 5, ‘The Discretion of the Coroner’, 18 February 2015.

III. Cases A. Calling Witnesses (i) R (Hay) v HM Coroner for Lincoln QBD 19 February 1999, [2000] Inquest LR 1 Keywords: Witnesses, evidence, natural causes, accidental death, prisons This case concerned an inquest into the death of Mr Hay at Lincoln Prison, three days after his imprisonment. Mr Hay was an insulin-dependent diabetic, aged 31. The inquest jury found that Mr Hay had died of diabetic keto-acidosis, from natural causes. His widow applied for judicial review of the inquisition and to quash the inquisition and order a new inquest. The grounds of challenge covered a number of matters relating to witness evidence before the inquest: first, disclosure of a witness list before the hearing; second, sufficiency of inquiry relating to the evidence of the medical officer on call and a nurse; third, calling of two further witnesses who were fellow prisoners. 46. We are unwilling, for our part, to fetter the discretion of a coroner by being at all prescriptive about the procedures he should adopt in order to achieve a full, fair and thorough inquiry. We have seen evidence that these matters are being considered by others, including a senior Home Office minister, and we would not wish to pre-empt the outcome of these discussions by ruling that procedural fairness requires that any particular pre-hearing procedure should be followed. Experience in other contexts, such as civil and criminal trials and planning and other inquiries, has shown that attention to points of detail in advance of a hearing often pays rich dividends, particularly by eliminating the need for avoidable adjournments. We are therefore sure that it would be helpful if the Coroners’ Society were to publish guidance to coroners about the different pre-hearing techniques which have been found to have been useful in different contexts, including Mr Fitzgerald’s idea of circulating a list of the witnesses the coroner provisionally intends to call, accompanied by a short summary of the gist of that witness’s evidence. The adoption of this course would have avoided some of the difficulties which arose in the present case. We are not, however, prepared to rule that any such procedures should be obligatory, even in an inquest of this kind. Subject to the need to obey the requirements of the Act and the Rules, it is for each coroner to decide how best he should perform his onerous duties in a way that is as fair as possible to everyone concerned, as well as doing his best to reduce the number of avoidable adjournments. … 77. Mr Fitzgerald submitted that the problems which arose at the inquest were the inevitable consequence of the coroner’s unwillingness to send his solicitors a list of the witnesses he intended to call. If Mr Wass and Mr Sanderson were not named on the list, then his solicitors would have

Witnesses 155 spotted this, and arrangements would have been made in good time for them to attend the inquest, since their addresses were known. He argued that the coroner had been wrong to reject the possibility of hearing relevant and important evidence in an inquest concerned with a death in custody on the grounds of administrative inconvenience. He pointed out that the coroner’s attitude throughout his exchanges with Mr Glasson had been characterised by an unwillingness to adjourn the inquest until another day in any circumstances. 78. Miss Hewitt submitted that this was a matter for the discretion of the coroner, and we should be slow to overrule him in a mater like this. In our view, however, the coroner failed to pay sufficient attention to the potential importance of the evidence Mr Wass and Mr Sanderson were capable of giving. The experts were clearly puzzled by the low reading of 11.5 taken by Mr Hopkinson. If the jury had accepted the evidence of these two witnesses about the heaviness of Mr Hay’s breathing, a matter not mentioned by either of the officers in the hospital wing, then it was on the cards that they might have returned a different verdict. In R v Southwark Coroner ex p Hicks [1987] 1 WLR 1624 Croom-Johnson LJ spoke at p 1630D of the public importance of having a full investigation of the circumstances of a death in prison. In re Rapier [1988] 1 QB 26 Simon Brown LJ referred at p 39E to the need for a full and proper inquest in such a case with all material matters placed before the jury. A similar reference to a need for a thorough investigation in a case concerned with a death in custody is to be found in the judgment of Newman J in R v HM Coroner for Coventry ex p O’Reilly, unreported, 6th March 1996. 79. It follows that we consider that Mr Fitzgerald’s criticisms are well founded. The coroner ought in the circumstances to have adjourned the inquest so that the evidence of Mr Wass and Mr Sanderson could have been made available to the jury on what was a highly relevant issue. Apart from those employed in the prison, only Mr Firman was called to attest to Mr Hay’s condition after he had arrived in the prison wing, and he went back to sleep so quickly he was unable to give evidence as full as that which might have been forthcoming from the other two prisoners. The difficulty stemmed directly from the coroner’s unwillingness to give advance notice of the names of the witnesses he intended to call. We are not so impressed by the submission that the coroner was at fault for being unwilling to adjourn the inquest in order to see if the other two men mentioned by counsel at the end of the hearing might be able to give relevant evidence, and we would not be willing to interfere on that ground alone, which Mr Fitzgerald did not very seriously press.

(ii) R (on the application of Paul) v Assistant Deputy Coroner of Inner West London [2007] EWCA Civ 1259, [2008] 1 WLR 1335, [2008] 1 All ER 981, [2007] Inquest LR 270 Keywords: Witnesses, evidence The appeal concerned the inquests into the death of the late Diana, Princess of Wales and the late Dodi Al Fayed in a car crash in the Alma Underpass in Paris on 31 August 1997, and whether witness statements could be read to the jury or whether the witness had to be called. The Court considered the coroner’s power to admit written evidence and the common law power to admit hearsay evidence. 1. This appeal is concerned with the way in which certain hearsay evidence can be given at an inquest. The point arises in the context of the inquests at present taking place into the death of the late Diana, Princess of Wales and the late Dodi Al Fayed. Their deaths, as is well known, occurred in a car crash in the Alma Underpass in Paris on 31 August 1997. A number of witnesses are resident

156 Kate Beattie outside the jurisdiction and cannot be compelled to attend the inquests. Many of those witnesses have given statements in documentary form and the question that arose at the inquests was whether the coroner could simply read those statements to the jury, or whether a witness had to be called in order to put the statements in evidence before the jury. 2. On 7 November 2007 the assistant deputy coroner, Scott Baker LJ, ruled that the statements should simply be read by him and that there was no necessity to call a witness to put the statements in evidence. In so ruling he expressed the view that rule 37 of the Coroners Rules 1984 had no application to the statements with which he was concerned and that he was simply exercising his common law power to admit hearsay evidence. … 7. As the Divisional Court judgment made clear, and in relation to which there is no issue, at common law the coroner has the power to admit hearsay evidence and no one suggests that the above statements cannot be admitted in evidence. This appeal is not thus about the admission of hearsay evidence, it is about the way in which that hearsay evidence can be placed before the jury. It is the claimants’ argument that, so far as documentary evidence is concerned, that can only be put in evidence directly by the coroner if it falls within the provision of rule 37 of the Coroners Rules 1984.17 Those representing the coroner seek to support his ruling that rule 37 does not deprive him of his power to put hearsay evidence before the jury by any method he chooses, including simply by reading from a document. In the alternative they seek to argue that the provisions of rule 37 read ‘purposefully’ allow the coroner to read the statements without calling a witness. … 17. So far as the power of the coroner is concerned, I would not accept [Counsel for the First and Second Claimants] Mr Keen’s submission. What, however, I would accept is that it was rarely, if ever, the practice of coroners to admit documentary evidence without the calling of a witness. In particular, it is difficult to think that coroners would have been inclined to admit statements of witnesses in documentary form even when those witnesses were unavailable for some reason. Support for the view that coroners were disinclined to admit documentary evidence is provided by the Brodrick Committee Report (1971) (Cmnd 4810), on passages which, again, I shall quote hereafter. Perhaps some support for the reluctance of the coroner simply to put documents in evidence is supplied by what in fact happened in Ex p Devine before the coroner, who, having ruled that statements were admissible by virtue of rule 17 of the Northern Ireland Coroners (Practice and Procedure) Rules (Northern Ireland) 1963 (SR & O (NI) 1963/199), proved those statements via witnesses. … 32. Support for the view, that so far as documentary evidence is concerned rule 37 is a complete code, is gained from authorities cited by Mr Beloff in his skeleton and cited by the Divisional Court in their judgment, at para 46. In particular the view of Croom-Johnson LJ in R v Southwark Coroner, Ex p Hicks [1987] 1 WLR 1624, 1629 was that the admission of documentary evidence was controlled by rule 37 and that the use of and reference to documents was narrowly circumscribed. 33. In my view, accordingly, it is likely to be impossible to take the route that the coroner chose in making his ruling but I will come back finally to that question after considering the proper construction of rule 37.

17

The rule concerning documentary evidence. See now Coroners (Inquest) Rules 2013, r 23.

Witnesses 157 Construction of rule 37 34. The question is whether an imaginative construction can be placed on rule 37. If the coroner were to be entitled to prove the contents of the statements simply by placing the written documents before the jury under rule 37 an imaginative construction of that rule would have to be applied in two distinct places. First, in paragraph (1), Mr Burnett suggests that ‘unlikely to be disputed’ means ‘unlikely to be challenged in oral proceedings by interested persons’, as opposed to ‘uncontroversial’. If the words could be so read, the coroner (he submits) would be entitled to form the view that because the witnesses would not come to give evidence, therefore the evidence was unlikely to be challenged and paragraph (1) of rule 37 would have been satisfied. He would then, if objection were taken by the interested parties and if the documents were to be admitted as such, have to form the opinion under paragraph (2), that the makers of the documents were ‘unable to give evidence’ within a reasonable period. No one disputes that such a phrase would cover someone who through sickness could not attend. It would also cover someone who was overseas but forbidden by the authorities of the overseas’ state to come to England or Wales. The claimants contend, however, that the phrase does not cover a person overseas who is physically able to come and not prohibited from coming, but yet cannot be compelled to come by the coroner. 35. I am quite unable to accept that the words ‘unlikely to be disputed’ can be read as ‘unlikely to be challenged in oral proceedings by interested persons’. The phrase ‘likely to be disputed’ plainly refers to documentary evidence that an interested person does not accept and wishes to dispute. 36. This makes it unnecessary to consider the meaning of the word ‘unable’. For my part, I could see ways of placing a wider construction than that favoured by the Divisional Court on that word if one had answered the previous question differently, but it is not fruitful to explore that aspect further. Final view on the common law 37. Once one reaches the view that rule 37 does not allow the admission of a document, even where the maker is unable to attend and appreciates once again that under rule 28 of the 1953 Rules the coroner would have had the power to admit such a document, one returns for a moment to consider whether it is really right that rule 37 applies to controversial documents. I admit that I have been tempted to take the route adopted by Lord Hutton CJ in the Court of Appeal in Northern Ireland in Ex p Devine 6 December 1990 in relation to rule 17 of the Coroners (Practice and Procedure) Rules (Northern Ireland) 1963. In one sense the argument is more powerful in relation to rule 37 than it was in relation to the rule 17. The argument on Lord Hutton CJ’s reasoning would be that rule 37 is dealing with uncontroversial and not with controversial documents. In the case of rule 37 that argument can be said to gain support from the fact that sub-rule (2) of rule 37 gives power to the coroner to admit in evidence only uncontroversial documents where the witness is unable to attend. Sub-rule (2) is not freestanding and does not apply to all documents. The rule maker (so the argument would go) cannot have intended to take away the power given by old rule 28 in relation to all documents to admit in evidence such documents where the coroner was satisfied there was good and sufficient reason why the maker should not attend. But, as tempting as it is to adopt that route, it seems to me that Lord Goff ’s view of rule 17 clearly rejected the above process of reasoning. Furthermore, identifying precisely what tests should be applied when exercising a discretion in relation to admitting a document where a witness was unavailable would involve, in effect, legislating and choosing between the word ‘unable’ or the words of rule 28, or some other test, and that simply is not the function of the court. 38. The fact is rule 37 replaced a rule dealing with all documents. The heading to rule 37 is ‘Documentary evidence’ in quite general form. Rule 37(5) deals with a maker who is deceased and applies to all documents. It is simply impossible to hold otherwise than that rule 37 was intended to be

158 Kate Beattie a complete code and that by some error the draftsman failed to put in the saving provision that would have applied under rule 28 of the 1953 Rules.

Note: In the Coroners (Inquests) Rules 2013, the rule regarding documentary evidence has been expanded to allow written evidence not only when the maker cannot attend but also when he or she will not attend (even though there may not be a justified reason for nonattendance).18 The words ‘unlikely to be disputed’ have been retained in the revised rule.19

(iii) R (on the application of Al-Fayed) v Assistant Deputy Coroner of Inner West London [2008] EWHC 713 (Admin), [2008] Inquest LR 39 Keywords: Witnesses This case concerned an application for permission to apply for judicial review of the coroner’s decision to refuse an application to call His Royal Highness The Duke of Edinburgh to give evidence and to request Her Majesty The Queen to answer a number of specified questions at the inquests into the deaths of Diana, Princess of Wales and Mr Dodi Al Fayed. The application was rejected, with the Court confirming that it was a matter for the coroner’s discretion: 18. In our judgment these submissions do not sufficiently address the fact that the Coroner had already called a vast body of evidence before the jury. In essence the basis on which he was now being asked to call the Duke of Edinburgh as a witness and to address questions to Her Majesty The Queen, was to inquire into a new minted speculative theory. It is clear from his submissions that Mr Mansfield wanted the Duke of Edinburgh to be called in order to cross examine him whether he had expressed himself in such terms of hostility to Diana, Princess of Wales that members of the SIS, without his knowledge, or the knowledge of those responsible for the service, conjured up a plot of their own to arrange for her to be killed. 19. In our judgment the Coroner was entitled to conclude that the new theory, whether it went to rumour and speculation or indeed ‘how’ the deceased met their deaths, when examined in the light of existing evidence, did not make it expedient to ask the questions intended to be raised with the Duke of Edinburgh, and the questions asked of Her Majesty The Queen. As he put it in his judgment, the approach the Coroner had adopted at the outset had led to submissions which in effect said, ‘the further you have gone, the further you ought to go’. The Coroner considered and addressed each of the ‘issues’ identified by the claimant’s solicitors in relation to the purpose of the Inquests. The question whether it was expedient for these purposes for any evidence (from whomsoever) to be given on these or any other issues was pre-eminently a matter for his judgment. His analysis of the issues in his ruling demonstrates that there was nothing in the proposed evidence which would be of advantage to the jury when reaching their verdict. The stark reality was that enough was enough. 20. The Coroner’s approach was neither illogical nor unreasonable, and his conclusion was not flawed. He was required to make a judgment based on whether it was expedient in the particular context of the facts and issues relevant to these inquests. In that context he was entitled to have

18 19

Coroners (Inquests) Rules 2013, r 23. See Chapter 12 on evidence.

Witnesses 159 regard to the vast amount of evidence which had been called and the very limited evidence which remained to be called. As he put it: ‘in keeping open the question whether it might be expedient to call the Duke of Edinburgh I was anxious to see what evidence emerged during the inquests that might alter my initial view. Looking at the whole of the evidence and keeping firmly in mind that it is for the jury and not me to decide what evidence is to be accepted or rejected, nothing has emerged to persuade me it will be expedient to call the Duke of Edinburgh … Inquiries of Her Majesty The Queen should not be made as suggested by Mr Al Fayed on the basis that they will not assist the jury to answer the statutory questions.’ 21. In our judgment the contention that this court should interfere with these carefully considered decisions was unarguable. Accordingly the applications were dismissed. The claimant will pay the defendant’s costs.

(iv) R (Ahmed) v HM Coroner for South & East Cumbria [2009] EWHC 1653 (Admin), [2009] Inquest LR 177 Keyword: Witnesses The case concerned the inquest into the death of Shafilea Ahmed, which concluded that she died of unlawful killing. Shafilea’s parents challenged the procedure and conclusions of the inquest, including in relation to the coroner’s disclosure of witness statements in advance of the inquest. The Court’s comments on disclosure of witness statements have now largely been overtaken by the entitlement to disclosure in rule 13 of the Coroners (Inquests) Rules 2013. The case confirms the coroner’s discretion as to the calling of witnesses at the inquest: 35. It is also common ground that a Coroner is under a duty to call sufficient evidence to enable him or her to answer the questions set out in Rule 36. The Coroner is not required to call each and every witness who might be able to give some relevant evidence on any possible aspect of an inquiry.

(v) R (Hair) v HM Coroner for Staffordshire [2010] EWHC 2580 (Admin), [2010] Inquest LR 197 Keywords: Witnesses Article 2, prisons, summing up The High Court considered a number of challenges to the adequacy of the inquest into the death of Mr Hair, a prisoner at HMP Stafford who had been found unconscious with a ligature around his neck and who had died on 15 December 2006. One of the challenges was in relation to the coroner not calling two prison governors and a prison officer to give evidence. It was said their evidence was relevant to adjudications which Mr Hair had faced and allegations he had made of bullying by a prison governor (and to issues of his mental health). The Court concluded that the failure to call relevant witnesses undermined the inquest and quashed the verdict. In relation to calling witnesses, the Court said: 41. … In my judgment, the coroner’s summing up was inadequate in failing to address the jury on the potential significance of the documentary evidence. Underlying this defect, however, was the

160 Kate Beattie more fundamental defect of the failure on the coroner’s part to appreciate, once the adjudication papers were produced, the need to call as witnesses Tony Palmer and Prison Officer T ropietko. The Prison Officers who were called disclaimed all knowledge of the written statement. It is conceivable that the evidence of those who were at the hearing in question may have undermined that disclaimer. Even without that evidence, the fact that the written statement was found amongst the adjudication papers and not amongst Mr. Hair’s possessions, and the appropriate inferences to be drawn from that, ought to have been put to the jury, especially as one of the Prison Officers who gave evidence was apparently responsible for the management of the adjudication files, and was working on them on the day of Mr. Hair’s death. 42. I have some sympathy for the coroner who, in common with the parties, was dealing with inexcusably late disclosure which seems to have caught everyone on the hop. Nevertheless, the responsibility for ensuring that all relevant witnesses were called was ultimately his. It seems to me that it was his duty to ensure, even at the expense of an adjournment (had that proved necessary), that all relevant witnesses were called on the question of who (if anyone) had access to the written statement and why it was apparently ignored. Tony Palmer and Prison Officer Tropietko were in my judgment obviously relevant witnesses, and the jury’s question demonstrates the critical potential importance of their evidence. The failure on the coroner’s part to call those witnesses, or even to comment upon the significance of the documentary record, seems to me fatally to undermine the integrity of the inquest. Given also that the error was a result of late production of documents by the state, it seems to me that the state has, partly as a result of its own conduct, not been held properly to account and that the inquisition must, in those circumstances, be quashed and another inquest ordered. The jury’s answer to question 8 is testimony in itself to the inadequacy of this particular inquest in the circumstances. 43. Moreover, any further evidence that might have been given on the issue of who had access to the written statement, and why it did not evoke an appropriate response, has the potential to have a knock-on effect on questions 7 and 9. If members of the disciplinary staff read the written statement, but chose to ignore it, that may conceivably have put in doubt the advisability of the policy of bringing repeated charges against Mr. Hair, or even support the bullying allegation. On the oral evidence as it was before the jury, I have no doubt that the answers that they gave to Questions 7 and 9 were supportable, and that the coroner’s directions, based on the evidence, were adequate as far as they went. His summing up was not particularly detailed, but the issues were straightforward enough, and the evidence was fresh in the jury’s mind. Despite this, the further evidence that might now be adduced, which should include Governor Small, given Mr. Hair’s naming of him, may conceivably put these issues also in a different light. 44. For these reasons, the inquisition is quashed and a new inquest is ordered.

(vi) R (Mack) v HM Coroner for Birmingham & Solihull [2011] EWCA Civ 712, [2011] Inquest LR 17 Keywords: Witnesses, evidence, medical care The facts of this case are summarised in Chapter 17 on medical inquests. In brief, this case concerned the hospital death of the claimant’s husband, who died at the age of 77 approximately three and a half weeks after elective surgery for a hip replacement. The deceased’s wife complained about several aspects of the inquest, in particular about the coroner’s decision as to which witnesses to call and not to call and about his decision to sit without a jury.

Witnesses 161 8. Numerous criticisms are made of the coroner’s conduct of the inquest. The two primary complaints are about the witnesses whom the coroner decided to call or, more particularly, not to call, and his decision not to summon a jury. Before the inquest began there was a good deal of correspondence between the family or their legal representatives and the coroner. There was also a pre-inquest directions hearing. The family set out at different times lists of witnesses whom they wanted called. The list was extensive. In his able submissions on behalf of the coroner, Mr Hough has rightly observed that although now the focus in this case has been on events between the 16 and 25 June, there were many other respects which required investigation and many other matters about which the family were asking questions. These concerned his treatment at the Priory hospital and his treatment up to the time when he was admitted to ward B4 [the Clostridium difficile Cohort Ward]. The point was validly made that the coroner could not reasonably be expected to call every witness who might be able to give relevant evidence; that would have taken many medical witnesses away from their responsibilities for the treatment of patients. In any event, the matter is governed by law. Section 11 of the Coroners Act 1988 provides certain material: ‘The Coroner shall, at the first sitting of the inquest, examine on oath touching the death all persons who tender their evidence respecting the facts and all persons having knowledge of the facts whom he thinks it expedient to examine.’ 9. There is clear authority and it is not in dispute that this gives to the coroner a wide discretion—or perhaps more appropriately a wide area of judgment—whom it is expedient to call. The court will only intervene if satisfied that the decision made was one which was not properly open to him on Wednesbury principles.

The Court of Appeal went on to consider whether the inquest was adequate without calling any doctor who had responsibility for Mr Mack’s treatment during the time that he was on the Clostridium difficile Cohort Ward. The Court held that it was not: 20. We are not here concerned with a case where there was one individual failing. There appear to have been a whole series of failings, and the natural person to be asked to try to help explain them would have been somebody who had some knowledge and responsibility in relation to the ward where Mr Mack was being treated. I am not suggesting that in every case of a hospital death there needs to be a doctor from every ward where the patient may have been; it is a fact-specific question; but the facts of the case were such as to cause very considerable concern … 21. These matters were pursued as far as they could be with Dr Ayuk [the consultant endocrinologist] in his evidence but there were inevitably limitations in how far they could be taken. Dr Ayuk agreed that severe dehydration could play a part in precipitating a cardiac death. Mr Hough said that the nature of that question is such that nobody else could have said anymore about it. However, what Dr Pathmakanthan [the consultant gastro-enterologist] potentially would have been expected to say is something about the condition of Mr Mack. The judgment he formed is a rather different matter from another doctor doing the best that he can from someone else’s notes. Dr Ayuk agreed that the creatinine level was a marker of dehydration, but he said that trying to determine his dehydration level was inevitably very subjective. To ask a consultant, however able, to form a judgment as to the degree of dehydration of a patient whom he has not seen from a blood test is a very different proposition from asking the doctor who had actually seen him and who had formed a plan based on his clinical observations of the patient. One cannot know for certain how far Dr Pathmakanthan would have been able to answer such questions a year after the event, but it is plain that there were limits as to how far Dr Ayuk could go, and I am not satisfied that any truly rational ground has been shown for saying that it was not appropriate to explore those matters with the responsible consultant, given the variety and troubling nature of the many shortcomings. The explanation that the coroner’s general practice was to accept the nominee put by the hospital is not, with respect, a satisfactory explanation.

162 Kate Beattie 22. For those reasons I conclude that the first and principal challenge made to the inquest succeeds and that there ought to be a fresh inquest. I do not express the slightest concern about the conscientiousness of the coroner who conducted this inquest, although I have come to the view that his decision not to call Dr Pathmakanthan, or if necessary a substitute, in the matter was not rationally explainable or justifiable; but, while not suggesting any general lack of conscientiousness on his part, it would be plainly right that any fresh inquest be conducted by a different coroner.

The Court declined to determine whether the new inquest should be heard with a jury, as this was a matter that should be determined by the coroner on submissions made to him or her.

B. Expert Witnesses (i) R (Goodson) v Bedfordshire and Luton Coroner [2004] EWHC 2931 (Admin), [2006] 1 WLR 432, [2005] 2 All ER 791, [2004] Inquest LR 226 Keywords: Witnesses, experts, medical care, medical negligence The facts of this case are summarised in Chapter 17 on medical inquests. In brief, the deceased died following an operation for gallstones. His daughter contended that, during the inquest, the coroner had refused to call relevant medical experts. The Court considered whether independent expert evidence was required: 71. As to effectiveness, the lack of independent expert evidence or review was certainly one of the reasons why the inquest in R (Wright) v Secretary of State for the Home Department [2001] UKHRR 1399, a case of death in custody, was held not to have been an effective investigation. The same is true of R (Nicholls) v Liverpool City Coroner [2001] EWHC Admin 922, another case of death in custody, though it had the particular feature that the deceased’s family had instructed a medical expert whose report contained adverse comment on the standard of care received by the deceased but whom the coroner refused without good reason to call as a witness. So too in R (Stanley) v Inner North London Coroner [2003] EWHC 1180 (Admin), a case concerning the use of fatal force by police officers, the coroner’s failure to call relevant experts who were present at the inquiry, including one funded by the family of the deceased, was held to be one of the reasons why the inquest was flawed. But each of those cases was decided on its own particular facts. None of them purported to lay down any principle that independent expert evidence is always required in order to render an inquest an effective investigation for the purposes of article 2. And in my view there can be no such principle. Everything must depend on the particular circumstances, including the expertise of the coroner himself and the precise nature of the issues and evidence before him. 72. In this case it is relevant that the coroner, though experienced, was not medically qualified. Moreover the pathologist could give him only limited assistance in relation to the care exercised by the surgeon who performed the procedure on Mr Coleman and the care he received thereafter. On the other hand, the coroner did have the hospital notes, the GP’s letter, and relevant expert evidence, albeit not independent evidence, from the surgeon herself and from the specialist senior registrar, both of whom were experienced practitioners. That evidence could be probed and was in fact subject to cross-examination by the claimant’s solicitor. The coroner also had the benefit of statistical evidence (provided by the surgeon in her comments, but backed up with references to the textbooks) as to the risk of complications and mortality from this elective procedure. Further, in this case there was no expert evidence on behalf of the claimant suggesting any deficiency in

Witnesses 163 the care received by the deceased or in the hospital procedures. Such suggestion as there was of negligence came only through cross-examination or submission by the claimant’s solicitor. 73. The coroner himself makes clear in his written reasons that he was satisfied in the circumstances that there was no negligence and that there was no need for a ‘systems review’ of the hospital procedures; but that had he taken a different view he would have obtained independent expert evidence and/or undertaken a systems review. There was no question of his perceiving his powers to be limited in any material respect if the matter proceeded as an ordinary inquest without also constituting an article 2 investigation. The matter therefore comes down to whether the coroner’s judgment that fuller investigation was not required in the circumstances was a lawful judgment. In the context of the sufficiency of an investigation under article 2 it seems to me that the court, rather than simply asking whether the coroner’s judgment was reasonably open to him in the Wednesbury sense, must form its own judgment on whether more was required, in particular by way of independent expert evidence. In forming such a judgment, however, the court must take account of its own lack of medical expertise and must pay an appropriate degree of deference to the judgment of the coroner, who is more experienced in these matters and was closer to the actual evidence in the case. 74. Applying that approach, and taking due account of the criticisms made by [counsel for the claimant] Mr Powers of the evidence that was before the coroner, I am not persuaded that the coroner was wrong to view the matter as he did. It may be that the additional evidence now obtained by the claimant would cast a different light on the matter. But, as I have said, Mr Powers did not seek to place that evidence before me. I must approach the matter on the basis of the same material as was before the coroner. On that basis I would hold that the coroner’s conduct of the inquest was lawful even if the inquest did constitute an investigation under article 2. It was not only an independent investigation but also, on the particular facts, an effective investigation notwithstanding the lack of independent expert evidence on the standard of care received by Mr Coleman. I did not understand Mr Powers to submit that it was incompatible with article 2 in any other respect, and on the face of it I see no reason to hold that it was.

(ii) R (Takoushis) v HM Coroner for Inner North London [2005] EWCA Civ 1440, [2006] 1 WLR 461, [2005] Inquest LR 185 Keywords: Witnesses, experts, medical care, medical negligence The facts of this case are summarised in Chapter 17 on medical inquests. In brief, the deceased attempted to commit suicide but was prevented from doing so and taken to hospital. He was triaged and, according to the triage system, should have been seen within 10 minutes. However, this did not happen. The deceased absconded from the hospital and succeeded in killing himself. At the inquest his widow sought an adjournment so that, amongst other matters, expert evidence could be called. Her application was refused, and her application for judicial review was dismissed at first instance. However, the Court of Appeal allowed the appeal. Sir Anthony Clarke MR, giving judgment for the Court, said: 61. As to expert evidence, if an interested person wishes a coroner to call expert evidence in any particular case, it is for that person (if at all possible) to identify the witness and put the substance of the evidence which the witness may be able to give before the coroner so that the coroner may be able to decide whether or not it is appropriate. Whether or not it is appropriate here may well depend upon the evidence of fact, which (for the reasons discussed above) has not so far been available, as to why Mr Takoushis was able to leave the hospital before 1400. It may also depend upon precisely what system the hospital now has and the views of any such expert on it.

164 Kate Beattie

(iii) R (Warren) v HM Assistant Coroner for Northamptonshire [2008] EWHC 966 (Admin), [2008] Inquest LR Keywords: Witnesses, experts, prisons, mental health The High Court considered whether expert evidence was required at an inquest into the death of Michael Bailey, who committed suicide in the segregation unit of HMP Rye Hill. There was no history of mental illness or of psychotic episodes prior to the period shortly before his death, but he had become significantly mentally disturbed, possibly suffering from a psychotic episode, in the days before his death. He hanged himself with a shoelace in his cell. Three police officers were acquitted of manslaughter by gross neglect and another acquitted of conspiracy to pervert the course of justice, following submissions of no case to answer. As part of the police investigation into the death, a report was prepared on the management, medical and mental health issues leading up to Mr Bailey’s death. The report was very critical of the suicide and self-harm policy at Rye Hill and of certain individuals. The Prisons and Probation Ombudsman also investigated and found individual and systemic failures of disturbing proportions. The family requested that the coroner call a consultant psychiatrist whom they had instructed, which the coroner refused. The Court held that the coroner’s refusal to call the consultant psychiatrist instructed by the family was not obviously wrong that it should be interfered with, but that an inquest without evidence from a consultant psychiatrist and a GP would not be compliant with Article 2. The Court made no specific order that expert evidence was required but said its view was to be made known to the coroner. 38. Doing the best I can on the material before me, my conclusion is that independent expert evidence, both at consultant and general practitioner level, may be evidence that will help the jury answer the questions said to be relevant in Middleton. 39. Given that what is to be expected of the systems of health care within a prison and of the individuals who provide it is the NHS standard available to the general public, then evidence of what that standard is is, in my view, relevant. It would help to inform the issue of the adequacy or otherwise of the systems in place and of the way those operating those systems have acted. The need to avoid issues going to civil liability, which may of course also depend on evidence of a similar nature, would need to be addressed, but the fact that the evidence may be similar is not a reason for excluding it from the purview of the inquest. 40. I sense that this issue may have exercised the Coroner in making his decision. If I may say so, with respect, I can well understand that. But it seems to me to be more an issue of controlling the way in which the evidence is given and in the way it is, if received, put before the jury than ruling it out as a matter of principle. Indeed, I am not entirely sure that the Coroner has ruled evidence of this nature out in principle, but unfortunately the debate has focused almost exclusively on whether Dr Turner should provide that evidence. 41. What I am about to say is no reflection at all upon Dr Turner, whose expertise in the field of psychiatry is unquestioned. However, the Coroner has taken the view that Dr Turner’s proposed evidence goes further than it legitimately can for the reasons given in the letter and statement to which I have referred. Whilst others may well have taken a different view, I think it would be wrong for me to characterise that decision as so obviously wrong that I should interfere with it.

Witnesses 165 As Jervis and general experience shows, a coroner has a wide discretion about how the proceedings are conducted and who it is ‘expedient’ to call as a witness. The coroner is not obliged to accept a proposed witness and, as I have said, I for my part would be very slow to interfere with that kind of decision. 42. It follows from this, therefore, that I am not prepared to grant the specific relief sought in the claim form, namely a declaration that the decision was unlawful, that it be quashed and that a mandatory order requiring the Coroner to call Dr Turner be made. I am, however, of the view that an inquest in this particular case that does not have available to it evidence from an independent consultant psychiatrist and, I would add, an independent general practitioner, would not comply with Article 2. This is not a decision I have reached lightly, because I recognise it may have implications for the commencement of the inquest. However, I cannot avoid the decision simply because it may be inconvenient. 43. The Coroner has said, as of course is to be expected, that he will abide by any order of the court. Subject to anything that counsel may wish to say, I would not propose to make any specific order. My view is, I trust, clear. How it is translated into practical effect for the purposes of the inquest is very much a matter for the discretion of the Coroner, assisted by the parties who will be taking part. My position is simply that the effect of the Coroner’s decision concerning Dr Turner potentially deprives the inquest of evidence that may help the jury in its task. I am merely saying that this is a gap that should be filled. I have indicated my view that it should be filled by both a consultant and a general practitioner, the latter because the systems in place will inevitably have been served on a daily basis by general practitioners. 44. I should emphasise that this decision is confined solely to the facts of this particular case. It does not necessarily follow that evidence of this kind will be required in every case of a suicide in prison.

(iv) R (LePage) v HM Assistant Deputy Coroner for Inner South London [2012] EWHC 1485 (Admin) Keywords: Witnesses, experts The facts are summarised in Chapter 12 on evidence. There was an issue as to whether restraint and search might have contributed to the death and the family wished the coroner to call a forensic pathologist whom they had instructed in order to explore this issue. The Court held that the coroner was justified in not calling the expert: 61. The bereaved family will have quite naturally harboured all manner of suspicions about the tragic death of Stacie. One of those would have related to the conduct of the police and others while Stacie was detained after her arrest. It might have been sensible to have called Dr James [the forensic pathologist instructed by the claimants], if only to have explored and if necessary to have exposed in public view the limitations of his opinion. It would have shown the unanimous agreement of the medical men. Dr James was after all a witness whose opinion the claimants had sought. Although all medical experts are independent, the family would have seen Dr James as their independent witness. His evidence might have brought a completeness to the process. 62. I stress that there was no duty to call Dr James, no requirement to do so, and the exercise of the coroner’s discretion not to call him cannot be criticised. It was not unlawful to refuse to call him. But in all the circumstances it might have been better, not as a matter of law but as a matter of practical justice. As Brown LJ observed in an inquest context in R v Inner West London C oroner, ex parte Dallaglio [1994] 4 All ER 139, 155, citing Bingham LJ in a natural justice context in

166 Kate Beattie R v Chief Constable of the Thames Valley Police, ex parte Cotton [1990] IRLR 344, 352: ‘This is a field in which appearances are generally thought to matter’. (4) Evidence about police training 63. This is, in effect, a development of the claimants’ submission about Dr James. The submission is very much dependent upon the claimants’ assertion that Dr James would have provided added value to the inquest. The claimants argue that if Dr James had been called then the training of police officers in search and restraint would have become a necessary issue; his evidence would have shown that search and restraint could have been a possible cause of death. 64. The flaw in that submission is that Dr James’s evidence did not go as far as the claimants assert, not by a long way (see paras.31–37 above). Nor did any other evidence from the medical experts who were called. For that reason the foundation for this submission is absent, and the submission must therefore fail.

(v) R (Chambers) v HM Coroner for Preston and West Lancashire [2015] EWHC 31 (Admin) Keywords: Witnesses, experts, mental health, prisons, coroners Stephen Chambers was found hanging in his prison cell on 26 January 2004. An inquest with a jury returned a verdict of death by hanging, to which family problems and bullying contributed. The jury concluded there was not enough evidence to suggest that the prison were aware of the bullying. The inquisition was challenged on a number of grounds including insufficiency of inquiry and the absence of independent expert evidence. The Court rejected the argument that independent psychiatric evidence is required in every case of suicide in prison where there may be a mental health issue. Each case must be determined on its own facts. 23. Mr Stockwell submitted that where a death in custody occurs and there is evidence that medical or psychiatric issues may have contributed to the death, an effective and independent investigation requires the obtaining of independent expert evidence. He cited two authorities in support of this argument. … 30. Both Wright [R (Wright) v Secretary of State for the Home Department [2002] HRLR 1] and Warren [R (Warren) v HM Assistant Coroner for Northamptonshire [2008] EWHC 966 (Admin), [2008] Inquest LR] are cases with exceptional features. In Wright these included the fact that the shortcomings in the deceased’s medical treatment were so clear that liability for negligence was admitted; that the prison doctor responsible for Mr Wright’s treatment had been subject to restrictions on his practice; and yet he had not been called at the inquest, at which the family had no l awyer to represent them. In Warren there had been charges of manslaughter and perverting the course of justice brought against prison officers, and a finding by the Prison and Probation declining to call an independent consultant psychiatrist who had prepared a report at the request of the family. 31. Both these decisions are clearly correct, but they do not assist in the present case. They do not support the Claimant’s bold contention that independent psychiatric evidence must be called in every case of suicide in prison where there may be a mental health issue. Each case must

Witnesses 167 be determined on its own facts. To suggest otherwise would be to fetter the discretion of the coroner. It is long-established law and practice that the coroner has a wide discretion in deciding which witnesses to call (see Mack v HM Coroner for Birmingham [2011] Inquest LR 17; [2011] EWCA Civ 712 at paragraph 9; R (LePage) v HM Assistant Coroner for Inner South London [2012] Inquest LR 31; [2012] EWHC 1485 (Admin) at paragraphs 44–54). This includes expert witnesses (see R (Takoushis v Inner North London Coroner [2006] 1 WLR 461 at paragraph 61) such as psychiatrists (see, for example, R (Warren) v HM Assistant Coroner for Northamptonshire [2008] EWHC 966 (Admin) at paragraph 41). 32. [The claimant’s psychiatrist] Dr Snowden’s report suggests at its highest that there was a potential need for a referral of Mr Chambers to a psychiatrist ‘at some point’. In some cases that would have been the appropriate action. In this case it would not, for the reason quite simply that Dr Snowden, having reviewed the medical history of Mr Chambers, could not himself ‘give any support to a formal mental health depressive disorder diagnosis’. Mr Chambers undoubtedly suffered from low mood and declared himself at times to have a depressed mood. But he was treated accordingly, under the care of the prison healthcare team, nurses and general practitioners. That team makes the decision when appropriate to refer a prisoner to a psychiatrist; no such decision was made in this case. 33. In those circumstances Dr Snowden adds little or nothing to the medical picture. He expresses the opinion that there should have been a psychiatric referral but finds nothing in the medical history to suggest that a psychiatrist, if the referral had been made, would have been likely to recommend any different treatment from that given by the healthcare team. In that sense he neither supports the Claimant’s contention for ‘insufficiency of inquiry’, nor presents ‘new facts or evidence’ (section 13, Coroners Act 1988) of any substance. 34. Looking at the broader picture we are satisfied that there was sufficiency of inquiry in this case on all relevant issues. In particular there was sufficient inquiry into the management of the risk of suicide. Having reviewed the evidence which was called by the coroner, we observe that there was evidence before the jury on a range of relevant self harm issues: procedures relating to selfharm, general guidance, the 2052SH form process (including opening and closing of forms), the chronology of the use of forms in relation to Mr Chambers, the regular reviews of the forms in his case, and the specific decision to close the form on 16 December 2003.

C. Questioning Witnesses (i) R (Hay) v HM Coroner for Lincoln QBD 19 February 1999, [2000] Inquest LR 1 Keywords: Witnesses, evidence, natural causes, accidental death, prisons The facts are set out above. The Court held that the coroner’s approach to the privilege against self-incrimination had been wrong in principle as he had in effect imposed a b lanket prohibition against relevant questions being put to important witnesses by the family’s representative: 55. In our judgment, Mr Fitzgerald is plainly correct in his submission that privilege against selfincrimination is concerned with the giving of an answer by a witness and that the procedure adopted when dealing with such a claim of privilege should not be such as to give the witness complete immunity against further questioning … we are satisfied that the procedure which the

168 Kate Beattie coroner adopted in this case was wrong in principle. In effect, he imposed a blanket prohibition against any relevant questions being put by [the family’s representative] to either of these two important witnesses. In doing so, he denied the family the rights to which they were expressly entitled by the terms of rule 20 of the Coroners Rules 1984 [now rule 23 of the Coroners (Inquests) Rules 2013)] …

(ii) R (D) v Secretary of State for the Home Department [2006] EWCA Civ 143, [2006] 3 All ER 946, [2006] Inquest LR 35 Keywords: Witnesses, Article 2, evidence The case concerned conduct of an inquiry to be set up by the Home Secretary arising out of the near suicide of a young man (D) at HMP Pentonville on 27 December 2001.20 The Court of Appeal considered the need to cross-examine and to compel witnesses: Cross-examination 36. As indicated in paragraph 13 iii) above, the judge stated that D’s representatives must be able to attend at public hearings of the inquiry and put questions to witnesses in person. The second principal issue between the parties in this appeal is whether the judge was correct to hold that in order to satisfy article 2 the inquiry must afford D’s representatives the right to cross-examine witnesses. The judge held that they should have that right, although he did so in the context of the limited role which they would be able to play in the inquiry generally. Mr Nicol submits that the judge was correct to hold that, in order to satisfy the United Kingdom’s obligations under article 2, a right to cross-examine must be recognised. He relies in this regard upon the order made by Hooper J and upheld by the House of Lords in Amin. 37. We see the force of that submission but, whereas (as we demonstrated earlier) the House of Lords gave detailed consideration to the question whether the inquiry should be in public, it did not give the same detailed consideration to the question whether there should be a right to crossexamine, even though it did make an order to that effect. Moreover, whereas in the Strasbourg cases, notably Edwards, it was expressly held that a public inquiry should have been held in that case, there is no similar expression of view by the European Court to the effect that cross-examination must be permitted in a death in custody case if article 2 is to be satisfied. 38. The only reference to the possibility of the family asking questions is, so far as we are aware, in paragraph 84 of the judgment in Edwards, where the European Court (having expressed its conclusion in paragraph 83 that an inquiry should have been held in public) said this with reference to an inquiry which had been set up by the prison service, Essex County Council and North Essex Health Authority: ‘The applicants, parents of the deceased, were only able to attend three days of the inquiry when they themselves gave evidence. They were not represented and were unable to put any questions to witnesses, whether through their own counsel or, for example, through the Inquiry Panel. They had to wait until the publication of the final version of the Inquiry Report to discover the substance of the evidence about what had occurred. Given their close and personal concern with the subjectmatter of the Inquiry, the Court finds that they cannot have been involved in the procedure to the extent necessary to safeguard their interests.’

20

See further Chapter 7 on Art 2.

Witnesses 169 It is to be noted that the Court did not say that the family should have been entitled to crossexamine witnesses themselves, but implied that they might have been permitted to put questions through the panel. 39. It would be surprising if the European Court had gone further because most member states, unlike the United Kingdom, do not have an adversarial system and, as we understand it, most inquisitorial systems involve the chairman of the relevant tribunal asking the questions and, although they may permit the representatives of the parties to play such a part as is appropriate, the parties do not have the same right to cross-examine as parties to English adversarial litigation. 40. We note that the [Inquiries Act 2005] does not give parties represented at an inquiry under it rights to cross-examine witnesses. Section 17 is quoted in paragraph 18 above. No rules have as yet been made under it. By section 17(1), the procedure and conduct of the inquiry are to be as the chairman may direct and, by section 17(3), he must act with fairness and with regard to the need to avoid unnecessary cost. Thus while, by section 17(2), he may take evidence on oath, there is no provision entitling interested parties to cross-examine witnesses. It is a matter for the chairman of the particular inquiry to decide whether and to what extent to permit interested parties or their representatives to ask questions of witnesses. 41. We see no reason why an inquiry conducted in such a way should not be compatible with article 2 of the Convention. The underlying obligation of the chairman is to act fairly. In discharging that obligation, the chairman may or may not allow others to question witnesses, depending upon the circumstances of the particular case. In some cases it may be appropriate to do so and in others it may not. For example, where there is counsel to the inquiry, it may not be appropriate, whereas where there is no such counsel, it may, but all will depend upon the circumstances. 42. We have reached the conclusion that the judge went too far, in so far as he concluded that D’s representatives must be entitled to cross-examine witnesses. They must in general be entitled to see the written evidence, to be present during oral evidence and to make appropriate submissions, including submissions as to what lines of enquiry should be adopted, what questions asked and, indeed, who should be permitted to ask witnesses questions about what. As just stated, it will be a matter for the chairman to decide what procedure to adopt. Such an approach, which is that specified in the 2005 Act, will, in our judgment, discharge the United Kingdom’s obligations under article 2 of the Convention on the facts of this case and be consistent with both the Strasbourg jurisprudence and the reasoning of the House of Lords in Amin. It will, for example, meet the requirement identified in paragraph 109 of Jordan and paragraph 73 of Edwards that there must be involvement of D’s representatives ‘to the extent necessary to safeguard his or her legitimate interests.’ Compelling witnesses 43. As indicated in paragraph 13 ii) above, the judge stated that the inquiry must be capable of exercising a power to compel the attendance of witnesses, if this becomes necessary for the inquiry to be effective, and this power must be capable of being exercised without undue delay. There was some discussion in the course of the appeal as to whether the judge was entitled so to direct. However, in our opinion, he was. Moreover, although the letter of 24 January 2005 did not contemplate that Mr Shaw would have such a power, that was before the 2005 Act was enacted. 44. The position now is as stated in paragraph 17 above. By section 15 of the 2005 Act, an ad hoc inquiry can be converted into an inquiry under the Act by a notice given by the relevant minister and by section 21(1)(a) the chairman may require a person to attend to give evidence. It follows that in the unlikely event that it is thought necessary to compel the attendance of a witness the

170 Kate Beattie minister can serve a relevant notice under section 15 and the chairman can then serve a notice to compel the witness’s attendance under section 21. 45. In these circumstances we can see no objection to this part of the judge’s order but add that there is now a process to enable a witness to attend if it becomes necessary. We see no reason why the taking of such steps should cause undue delay.

D. Summonsing Witnesses and Contempt of Court (i) HM Coroner for Kent v Terrill [2000] Inquest LR 16 Keywords: Witnesses, criminal law A coroner applied for an order to commit the two respondents, husband and wife, to prison for contempt of court. 13. It is quite obvious to my mind that these respondents have at all material times known perfectly well that they are required to attend the inquest and have deliberately declined to do so. The only point in the case, now that all matters as to service have been satisfied, is whether they may escape liability for contempt of court by reason of the fact that the full amount of the expenses which they would incur had not been tendered to them. That arises by virtue of the mistake relating to the rail fare, to which I have already referred. 14. Mr Periera addressed this question in a supplementary skeleton argument which was put before us on Friday last. He cites the latest edition of Arlidge on Contempt which sets out these two propositions: ‘The full amount of the expenses which the witness is likely to incur in giving his evidence must be tendered when the subpoena is served … If conduct money is not tendered the witness will not be in contempt in failing to attend or refusing to be sworn or give evidence.’ 15. The second proposition is: ‘A witness may waive payment of his expenses, but if he does so he cannot subsequently rely on their non-payment as a reason for not attending.’ 16. The learned authors of Arlidge cite authority for both of these propositions. It is not necessary, as I see the matter, to travel through all of the cases. The authority which is perhaps critical to the question whether there is any defence to the allegation of contempt here is the 19th Century case of Goff –v– Mills (1844) 13 LJQB 227. That vouchsafes the proposition that having waived the right to his expenses, the prospective witness cannot raise as a defence to contempt proceedings that the money tendered was in fact inadequate. 17. Wightman J said this: ‘With respect to the second [I interpolate that is the second objection taken to the rule nisi in the case] which is founded upon the insufficiency of the sum tendered to the witness for his expenses, as he did not make any objection on that score at the time, but, on the contrary, expressed his readiness to pay them himself, I think he cannot now be allowed to insist upon that objection.’ 18. Mr Periera submits that that really applies here. He relies on the two pieces of evidence from PC Hemsworth contained respectively in his first and second affidavits which I have already set out. His argument is that there are only two possible inferences from the blank response given by the respondents to the offer of conduct money when they simply declined to accept it. One inference

Witnesses 171 is that all the time they had no intention of attending the inquest and the other inference would be that if they were to come they would pay for themselves. Either way, they cannot now, in response to this contempt application, complain of the inadequacy of the conduct money. It seems to me that Mr Periera’s submission is entirely correct. It is in line with Goff -v- Mills which has never been disapproved. I have no doubt that these respondents are in contempt of court. 19. The question then is what should be done? The contempt cannot be ignored; it must be punished. No less important is the fact, as I have said, that the inquest remains adjourned to Thursday this week. It is at least one of the purposes of these proceedings, and a very legitimate purpose at that, to ensure that these witnesses attend the inquest. 20. For my part, I would simply order that each be imprisoned for four days for their contempt of court. If my Lord agrees and that order is executed, no doubt they will be brought to the coroner’s court on Thursday.

E. Conferring by Witnesses (i) R (Saunders and another) v Independent Police Complaints Commission [2008] EWHC 2372 (Admin), [2009] 1 All ER 379 Keywords: Witnesses, Article 2, evidence These linked cases both involved young men shot dead by police officers, whose deaths were being investigated by the Independent Police Complaints Commission (IPCC). The Court considered conferring of witnesses and held that there was no prohibition in English law on police officers speaking to one another about their involvement before they give their first account. Nor did the mere fact of collaboration in the production of witness statements mean that Article 2 had definitively been breached. However, an investigation might be inadequate if appropriate steps were not take to reduce the risk of collusion. 12. There has never been any prohibition in English law, or as a matter of police practice, on police officers who have been involved together in an incident speaking to one another about their involvement before they give their first account. Not only may they confer in the immediate aftermath—as would be entirely natural and may often be necessary for operational reasons—but they may collaborate in the writing up of the first accounts themselves … … 14. The risk of evidence being contaminated by conferring is sought to be guarded against, at least to some extent, in the instructions and training given to police officers … … 16. It does not follow from the acknowledgment of the risks inherent in the practice of permitting officers to confer, and in particular to collaborate in writing up their notes, that there should be a general prohibition on the practice; and in any event the latter practice has, as I have shown, the endorsement of the Court of Appeal.21 A ban on ‘mere’ conferring not only would be difficult to enforce in practice but would in many cases have serious operational disadvantages: prompt exchange of information between officers in the immediate aftermath of an incident is often essential. That objection might not apply to collaboration in the production of notes; but, as already 21

The judge had previously cited R v Bass [1953] 1 QB 681.

172 Kate Beattie observed, there are advantages as well as disadvantages in officers pooling their recollections, and the theoretically optimal practice of their doing so only after they have produced an uncontaminated first account may be both cumbersome in practice and of limited real value (particularly in a case where there has already been a degree of conferring in the immediate aftermath of the incident). It is important to recognise that the extent and seriousness of the risk to the quality of officers’ evidence caused by conferring or collaboration will vary greatly from case to case. The advantages of a blanket prohibition on collaboration in the production of notes might very well involve disproportionate disadvantages. However, that leaves open the more limited question of whether there should be a prohibition on conferring and/or collaboration in particular classes of case—such as DSI [death or serious injury] matters—where the risk of contamination of evidence is thought to be particularly high, or particularly serious in its consequences, or where the maintenance of public confidence in the process carries special weight; and it is essentially that question which provides the context for the issues in this case. … 38. In my view the judgment in Ramsahai22 demonstrates that in the case of a fatal shooting by police officers the state may be held to have violated art. 2 if, in the course of the investigation required by the article, adequate steps were not taken to prevent the police officers directly concerned from conferring before producing their first accounts of the incident; and that that is so even if it cannot be shown that they in fact did confer … 39. It follows that if the circumstances of either of these cases were in due course to be considered by the Court it might very well find that a breach of art. 2 had occurred. The facts are stronger than those of Ramsahai, both because it is not merely a possibility, but positively established, that the officers collaborated in producing their first accounts, and because the official guidance in force expressly permitted them to do so. It seems to me necessarily to follow from the decision in Ramsahai that the Court would be very chary of a general practice under which officers who are key witnesses in an art. 2 investigation are expressly permitted to collaborate in the production of their statements: the opportunity for ‘collusion’ is, so to speak, institutionalised. 40. I am not, however, prepared to say that the mere fact that there was collaboration in the production of witness statements in these two cases means that a breach of art. 2 has been definitively established. Decisions of the European Court of Human Rights on the facts of a particular case ought not to be treated as a binding precedent, even in a case where the material facts appear to be similar. The only authoritative parts of a judgment are the statements of principle which it expounds. In my view the relevant statements of principle emerging from Ramsahai are that there must in every case of a killing by state agents be an effective investigation, and that in order to be effective such an investigation must be both independent and ‘adequate’. The case also establishes that an investigation may be inadequate, and therefore ineffective, if ‘appropriate steps’ are not taken to ‘reduce’ the risk of collusion (see para. 330): I do not myself regard that as a statement of principle so much as an application of the underlying principles which I have identified. But, even if I am wrong about that, the principle in question is far from absolute in its formulation and involves the need to make judgments as to what steps are ‘appropriate’ and to what extent it is possible to ‘reduce’ the risk: those are precisely the kinds of judgment which [the Association of Chief Police Officers] is having to make in formulating its revised guidance. Either way, it remains necessary in any individual case to consider the particular circumstances of that case in order to judge whether the investigation was indeed effective and/or adequate and what steps were indeed appropriate in those circumstances …

22

Ramsahai v Netherlands (2008) 46 EHRR 43. See Chapter 7 on Art 2.

10 Funding PRITESH RATHOD

I. Overview An exhaustive overview of the various funding options available to interested persons (particularly families) is beyond the scope of this publication.1 For present purposes, it suffices to say that the most commonly adopted funding arrangements are conditional fee agreements (CFAs), before-the-event insurance (BTE) and legal aid. This chapter examines: (a) the circumstances in which legal aid is made available for assistance with and representation at inquests; and (b) the circumstances in which legal costs incurred in connection with assistance/ representation at inquests (however so funded) can be recovered in subsequent civil proceedings.

A. Legal Aid The Coroners and Justice Act 2009 (CJA 2009) did make public funding available for advocacy at inquests where (broadly) the deceased was in state custody or was in active service in the armed forces.2 However, this provision has been repealed.3 Current provision for legal aid in relation to inquests is made by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). LASPO requires ‘legal services’ to be made available for prescribed classes of case.4 The provision of such legal services to family members of the deceased5 in relation to inquest proceedings is included as a type of case in respect of which public funding can be granted.6 ‘Legal services’ include advice, assistance and representation.7 This is wide enough to cover written submissions and even the attendance

1 See, eg, Thomas, Straw, Machover and Friedman, Inquests: A Practitioner’s Guide (3rd edn, Legal Action Group 2014) Chapter 11. 2 CJA 2009, s 51, amending the Access to Justice Act 1999, Sch 2. 3 LASPO, Sch 5, pt 2. 4 LASPO, s 9(1). 5 LASPO, Sch 1, pt 1, para 41(3). See also s 10(6). 6 LASPO, Sch 1, pt 1, para 41(1). 7 LASPO, s 8.

174 Pritesh Rathod

of a person to act as a ‘McKenzie8 friend’.9 However, advocacy services are excepted from the types of services that can be provided.10 If advocacy services are required at an inquest, the case must qualify for exceptional funding on the basis that: (a) The failure to grant funding would: (i) constitute a breach of the applicant’s rights under the European Convention on Human Rights (ECHR) or under European Union (EU) legislation relating to the enforceable right to legal representation;11 or (ii) create a risk of a breach of such rights and it is appropriate to grant funding;12 or (b) The Director of Legal Aid Casework has made a ‘wider public interest determination’ in relation to the inquest and the funding seeker13 (namely that ‘in the particular circumstances of the case, the provision of advocacy … for the individual for the purposes of the inquest is likely to produce significant benefits for a class of person, other than the individual and members of the individual’s family’).14

(i) Breach of Human Rights (a) Failure to Grant Funding would Constitute a Breach of ECHR, etc. Rights In relation to a previous public funding regime, the Court of Appeal has held (in the context of a proposed Middleton inquest) that in order for such an enhanced investigation to be effective, the family must be able to play an effective part.15 Indeed, the effective involvement of the next of kin of the deceased must be satisfied in order to comply with the requirements of Article 2 ECHR.16 This may, in some cases, entail the provision of legal representation to the extent necessary to enable the next of kin to play an effective part in proceedings.17 Further, coroners may be required to adjourn inquests where families have not yet secured legal aid funding.18 Accordingly, the exceptional funding criteria in LASPO were drafted so as to require public funding in circumstances where the failure to provide it would constitute a breach

8 That is, someone who provides moral support, note-taking assistance, help with case papers or quiet advice on the conduct of a case to a litigant. Such a person may not act as the litigant’s agent, manage the case outside court or, address the court, make oral submissions or examine witnesses. See further Practice Guidance: McKenzie Friends (Civil and Family Courts) [2010] 2 FLR 962. 9 Lord Chancellor’s Exceptional Funding Guidance (Inquests), para 3 www.gov.uk/government/uploads/ system/uploads/attachment_data/file/454835/legal-aid-chancellors-guide-exceptional-funding-inquests.pdf. 10 LASPO, Sch 1, pt 1, para 41(2)(b); pt 3. 11 LASPO, s 10(3)(a). 12 LASPO, s 10(3)(b). 13 LASPO, s 10(4). 14 LASPO, s 10 (5). 15 R (Humberstone) v Legal Services Commission [2010] EWCA Civ 1479, [2011] 1 WLR 1460, [2010] Inquest LR 221 para 75. 16 ibid para 77, citing Jordan v United Kingdom (2003) 37 EHRR 2, [2001] Inquest LR 101 and R (Amin) v Secretary of State for the Home Department [2003] UKHL 51, [2004] 1 AC 653, [2003] Inquest LR 1. 17 ibid. 18 See R (Wiggins) v HM Assistant Coroner for Nottinghamshire [2015] EWHC 1658 (Admin), where Walker J granted permission to apply for judicial review against a decision not to adjourn an Art 2 inquest where the family were still waiting for a decision on their application for legal aid.

Funding 175

of the funding seeker’s rights under the ECHR (specifically Article 2) or under EU legislation.19 Note that there is no requirement on the applicant for funding to show that a failure to grant funding would definitely result in a breach of the applicant’s ECHR rights, or that there is a high (or any) degree of probability that a failure to provide funding would constitute a breach. The Court of Appeal has determined that there is no need to put a gloss on the word ‘would’ in section 10(3)(a) of LASPO, that is, a determination that it is necessary to make services available because a failure to do so ‘would’ be a breach of the applicant’s ECHR rights. If the Director of Legal Aid Casework determines that the failure to grant funding would be a breach, he must make an exceptional case funding determination.20 Under the Guidance as previously drafted, an application for exceptional funding under this criterion required the applicant to show that (and the Director of Legal Aid Casework to consider whether) there had been an ‘arguable breach’ of the state’s substantive obligation under Article 2 such as to trigger the parasitic enhanced investigative obligation (ie a Middleton inquest). This required a consideration of the case law and the circumstances in which an Article 2 inquest would take place, which is dealt with elsewhere.21 The Guidance envisaged that the substantive obligation under Article 2 was more likely to be engaged where the death had occurred whilst the deceased was in compulsory state detention.22 The Guidance also foresaw exceptional funding applications being made where the deceased was a voluntary mental health patient in circumstances where the state knew, or ought to have known, that there was a real and immediate risk to the deceased’s life and where the state did not do all that could reasonably be expected to avoid that risk.23 However, the correctness of this Guidance, specifically the requirement to show that there has been an ‘arguable breach’ of the state’s substantive obligation, was called into question. In Letts,24 Green J, in a lengthy judgment, analysed the circumstances in which the state’s duty to carry out an effective investigation arose automatically. This was important because the Guidance was worded so as to provide a right to funding only if there had been an arguable breach of Article 2, before considering whether the family needed to be represented.25 Green J held that the Guidance, in this respect, contained an error of law. There were cases where the duty to carry out an effective investigation arose ‘more or less, automatically’.26 He noted that the cases where arguability of breach was irrelevant included cases where the deceased committed suicide in state custody27 or voluntary mental health patients.28 However, he also noted that such cases were fact sensitive and the outer limits of the automatic duty to investigate were not clearly defined.29

19

For more on Art 2, see Chapter 7, Section III. C. ‘The Procedural Obligation’. R (Gudanaviciene) v The Director of Legal Aid Casework [2014] EWCA Civ 1622, paras 31 and 32. See Chapter 7 on Art 2 inquests. 22 Lord Chancellor’s Exceptional Funding Guidance (Inquests) extant before August 2015, para 25. 23 ibid, presumably following Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2, [2012] 2 AC 72. 24 R (Letts) v The Lord Chancellor [2015] EWHC 402 (Admin). 25 ibid para 55. 26 ibid para 14. 27 ibid para 77. 28 ibid para 83. 29 ibid para 99. 20 21

176 Pritesh Rathod

Nevertheless, he held that the inability to define the outer limits of the automatic duty to investigate did not preclude him from finding that the Guidance was erroneous insofar as it referred to the need to demonstrate an arguable breach of Article 2.30 One further factor was that applications for legal aid were usually made before the investigative process was underway. If the applicant was unable to produce evidence showing an arguable breach of Article 2, his application would have been declined.31 However, in circumstances where applicants would have been unable to obtain evidence in the first place pending a grant of legal aid, a legal aid caseworker would have been unable to form a properly considered view as to whether there was an arguable breach.32 The judge did not feel the need to quash the Guidance but invited submissions as to the appropriate form of remedy.33 In August 2015, the Lord Chancellor revised his Guidance.34 The new Guidance takes into account the decision in Letts and removes the requirement to show an arguable breach of Article 2 in cases where the procedural obligation under that Article is automatically triggered.35 This includes at least intentional killing by state agents, violent deaths and suicides of those in prison or police custody or, during arrests or searches and, violent deaths and suicides in mental hospitals.36 The Guidance also envisages that the suicide of a voluntary mental health patient is capable (depending on the facts) of automatically triggering the Article 2 duty but caseworkers should have regard to developments in case law.37 If the Article 2 procedural obligation is automatically triggered, caseworkers should proceed to the next stage of the test, namely to consider whether the family must be represented to safeguard their legitimate interests.38 Outside the categories where the procedural obligation is automatically triggered, it is necessary to show an arguable breach of the substantive duties under Article 2 (ie the operational duty or the systemic duty).39 It must next be considered whether the family must be legally represented in order to safeguard their legitimate interests. The Lord Chancellor’s Guidance envisages that in most cases, the coroner can discharge his function without it being necessary for the family to be represented.40 However, similarly worded guidance in relation to a previous funding regime41 was criticised by the Court of Appeal in Humberstone42 because it concentrated on the needs of the coroner rather than the needs of the family. This criticism has perhaps been 30

ibid para 100. In such cases, it may be worth writing to the coroner in advance of the inquest for an indication as to whether a Middleton inquest will be conducted, as the claimants in Wiggins (n 18) did. 32 Letts (n 24) para 102. 33 ibid para 19. 34 Lord Chancellor’s Exceptional Funding Guidance (Inquests) (n 9). 35 ibid para 10. 36 ibid para 11. 37 ibid para 12. 38 ibid para 13. 39 ibid para 14. 40 ibid para 20, relying upon Humberstone (n 15) para 78 and Letts (n 24) paras 120–22. 41 Funding Code: Guidance extant in April 2010. 42 Humberstone (n 15) para 75. But see also R (Joseph) v Director of Legal Aid Casework & Anr [2015] EWHC 2749 (Admin), where Holroyde J held that the fact that different family members placed different emphases on certain aspects of the case did not necessarily make the refusal to grant funding for separate representation of those family members unlawful. It was held that the next of kin have their own rights to participate in the inquest effectively to the extent necessary to safeguard their legitimate interests but that those interests had to be relevant to the purposes of the inquest (para 38). 31

Funding 177

addressed by the fact that the overriding question is whether the refusal to grant funding would constitute a breach of the applicant’s ECHR rights. The Director of Legal Aid Casework is then required to consider all the circumstances of the case with particular regard to the following:43 (a) The nature and seriousness of any allegations which are likely to be raised at the inquest against public authorities or other agencies of the state; (b) The particular circumstances of the family; and (c) Whether previous investigations into the death have taken place, and whether the family has been involved in such investigations. The first of those three factors ought to be self-explanatory but includes allegations of gross negligence or systemic failures (eg, closely related multiple and avoidable deaths from the same cause within the same institution, criminal conduct and attempts to conceal information or otherwise interfere with any investigation into the death).44 The second factor includes considering whether the applicant is suffering from severe mental health problems (possibly arising from the death of the deceased) or learning disabilities.45 The third envisages that in respect of certain deaths, investigations may already have been carried out by state organisations such as NHS trusts, the Independent Police Complaints Commission (IPCC) or the Crown Prosecution Service (CPS). However, in other cases, the inquest may be the only investigation that the state conducts where the family is involved to the extent necessary to safeguard their legitimate interests.46 The Lord Chancellor’s Guidance on exceptional funding for inquests does not consider circumstances in which a refusal to grant public funding would infringe the applicant’s right to legal representation under European Union legislation.47 However, the Explanatory Notes to LASPO refer48 to the Charter of Fundamental Rights of the European Union (2000/C 364/01), Article 47, which states that ‘[l]egal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice’. Furthermore, guidance relating to exceptional funding for cases other than inquests49 refers to the Explanations to the Charter,50 which states that the contents of Article 47 of the Charter of Fundamental Rights of the European Union are the same as those of Article 6(1) ECHR.51 Accordingly, the Director of Legal Aid Casework must apply the guidance relating to the granting of funding where the failure to do so would constitute

43

Lord Chancellor’s Guidance (n 9) para 21. ibid para 22. 45 ibid para 23. 46 ibid para 24. 47 That is, relating to LASPO, s 10(3)(a)(ii), although the Explanatory Notes to LASPO refer (at para 107) to the Charter of Fundamental Rights of the European Union (2000/C 364/01), Art 47, which states that ‘[l]egal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice’. 48 Explanatory Notes to LASPO, para 107. 49 Lord Chancellor’s Exceptional Funding Guidance (Non-Inquests) www.gov.uk/government/uploads/ system/uploads/attachment_data/file/477317/legal-aid-chancellor-non-inquests.pdf. 50 ibid para 32. 51 This analysis was accepted by the Court of Appeal in Gudanaviciene (n 20) para 58. 44

178 Pritesh Rathod

a breach of the applicant’s rights under Article 6(1) ECHR. This is only applicable where the proceedings are capable of determining the applicant’s civil rights and obligations and is unlikely to apply to inquest proceedings (hence the need for separate guidance relating to exceptional funding for inquests).52 (b) Failure to Grant Funding would Create a Risk of Breach of ECHR, etc. Rights The Lord Chancellor’s Exceptional Funding Guidance (Inquests) does not provide any guidance for the circumstances in which this ground for exceptional funding53 will be engaged. The Explanatory Notes to LASPO state that:54 [A]n exceptional case determination may also be made where the Director considers that the failure to provide legal services would not necessarily amount to a breach of an individual’s rights, but that it is nevertheless appropriate for the services to be made available, having regard to the risk of such a breach occurring.

Previous guidance for cases other than inquests55 stated that the risk of a breach of an applicant’s rights must be ‘substantial’ and that funding under this ground would only be granted in: those rare cases where it cannot be said with certainty whether the failure to fund would amount to a breach of the rights set out at section10(3)(a) but the risk of breach is so substantial that it is nevertheless appropriate to fund in all the circumstances of the case.56

However, the Court of Appeal in Gudanaviciene held that this guidance was incompatible with Article 6(1) ECHR and Article 47 of the Charter of Fundamental Rights of the European Union.57 Furthermore, the Court of Appeal held that there was no basis for saying that the discretion conferred by section 10(3)(b) was only to be exercised on ‘rare cases’.58 The Guidance therefore needed to be redrafted. In June 2015, new Guidance was promulgated for cases other than inquests.59 The reference to it only applying to rare cases was removed. Instead, it states that: The purpose of section 10(3) of the Act is to enable compliance with ECHR and EU law obligations in the context of a civil legal aid scheme that has refocused limited resources on the highest priority cases. Caseworkers should approach section 10(3)(b) with this firmly in mind. It would not usually be appropriate to fund simply because a risk (however small) exists of a breach of the relevant rights. The greater the risk of a breach, the more likely that it will be appropriate to make a determination. However, the seriousness of the risk is only one of the factors that may be taken into account in deciding whether it is appropriate to make a determination. Regard should be had to all the circumstances of the case.60

52

Explanatory Notes to LASPO (n 48) paras 30–34. LASPO, s 10(3)(b). 54 Explanatory Notes to LASPO (n 48) para 108. 55 Lord Chancellor’s Exceptional Funding Guidance (Non-Inquests), extant before June 2015. 56 ibid para 7. 57 Gudanaviciene (n 20) paras 41–59. 58 ibid para 44. 59 Lord Chancellor’s Exceptional Funding Guidance (Non-Inquests) (n 49). 60 ibid para 8. 53

Funding 179

The Guidance goes on to quote the Court of Appeal’s judgment in Gudanaviciene, when it states that: The Court of Appeal has confirmed that Article 6(1) does not require that funding be granted in ‘most or even many cases’, but caseworkers should not approach the applications for ECF with any preconception about the proportion of applications that are likely to succeed.61

However, this has led Collins J in IS62 to doubt whether even the amended Guidance has been correctly drafted, holding that he was far from persuaded that LASPO should be construed, despite what Ministers said it was intended to achieve, to limit grants of legal aid to the highest priority cases. What Parliament has provided is that it must be granted if without it an individual will suffer a breach of his Convention or, where material, EU law rights and may be granted if there is a risk of such breach. If such breach or risk of breach is properly described as highest priority, there is no problem. But the test in Gudanaviciene must be followed.63

Accordingly, insofar as this Guidance is applicable to funding for inquests, its status is severely compromised and its applicability limited. At the time of writing, no new Guidance has been published.

(ii) Wider Public Interest Determination The Director of Legal Aid Casework has the power to grant exceptional funding for advocacy services if he has made a wider public interest determination.64 This power exists only in relation to inquests and only for the benefit of family members.65 A wider public interest determination is a determination that, in the particular circumstances of the case, the provision of advocacy services is likely to produce significant benefits for a class of person other than the applicant or his family.66 However, it is important to note that it is not sufficient that there is a wider public interest in the inquest itself. Rather, the wider public interest must be in the applicant being represented, that is, the applicant must show that his being represented at the inquest will yield wider benefits above and beyond those peculiar to the applicant himself.67 The Lord Chancellor’s Guidance states that the most likely wider public benefits include the identification of dangerous practices, systematic failings or findings that identify significant risks to the life, health or safety of other persons.68 The Guidance envisages that where an inquest may reveal systemic failures which result in a report on action to prevent further deaths,69 then this is more likely to justify a wider public interest determination.70 However, if the body in question has already carried out its own investigation and made its

61

ibid para 13. IS v The Director of Legal Aid Casework and The Lord Chancellor [2015] EWHC 1965 (Admin). 63 ibid paras 66 and 67. 64 LASPO, s 10(4)(b). 65 LASPO, s 10(4)(a). 66 LASPO, s 10(5). 67 Lord Chancellor’s Guidance (n 9) para 30. 68 ibid para 28. 69 Pursuant to the Coroners (Investigations) Regulations 2013, reg 28 (formerly the Coroners Rules 1984, r 43). 70 n 9, paras 31–33. 62

180 Pritesh Rathod

own recommendations, or if the body in question has already accepted responsibility for failings leading to the death and has agreed to make changes to prevent similar deaths, then this reduces the potential for wider benefits to flow from the inquest, making a wider public interest determination less likely.71

B. Recoverability of Costs Section 51 of the Senior Courts Act 1981 gives the court a wide discretion in respect of the costs ‘of and incidental’ to court proceedings. It now seems settled (albeit only on the basis of High Court authority) that in principle, the costs of attending an inquest for the purposes of investigating a civil claim are recoverable as costs ‘incidental to’ civil proceedings.72 This is partly because no objection could be taken in costs proceedings to the costs of a solicitor examining a witness in his offices for the purposes of investigating a claim. It follows, therefore, that no objection could logically be taken to the costs of a solicitor examining a witness at an inquest (which may well be a less expensive exercise).73 In Roach,74 counsel for the paying party submitted that the costs of attending an inquest could never be recovered because an inquest had ‘nothing to do with’ a civil claim, given that the purpose of an inquest is to discharge a statutory function (namely, by determining the identity of the deceased, where they died, when they died and how they died) rather than deciding whether liability for the death had been established. However, Davis J noted that ‘[t]he purpose of an inquest is not to be equated with the purpose (or relevance) of attendance at an inquest’.75 Davis J noted that there may well be an overlap between costs incurred in assisting the coroner with the discharge of his functions and those incurred in investigating a potential claim by attending the inquest. However, he suggested76 that the costs judge would have to consider the recoverability of items of costs as informed by the principles in In re Gibson’s Settlement Trusts77 (namely, costs incurred in connection with obtaining materials which are ‘of use and service’ in proceedings (ie the costs of investigating a claim), the relevance of the costs incurred to matters in issue and costs incurred as a result of the paying party’s conduct). The Court declined to give any guidance as to the circumstances in which the costs of attending an inquest would be recoverable after a civil claim, preferring to leave it to the judgment of the costs judges as to whether such costs were incidental to the civil

71

ibid paras 34–35. Roach v The Home Office [2009] EWHC 312 (QB), [2009] Inquest LR 45, following The Bowbelle [1997] 1 WLR 1159. This would include cases where such costs have been incurred under a CFA. 73 ibid para 42. 74 Roach (n 72). 75 ibid para 42. The deputy costs judge in the case of Matthews (whose appeal was linked with that of Roach (n 72)) noted that ‘[i]t may not be the coroner’s function to produce evidence relating to fault when seeking to find facts for questions he needs to answer. Nevertheless, all interested parties keep an eye out, and indeed ask questions, for purposes outside those of the coroner’ (see Roach, para 39). 76 ibid paras 57–59. 77 In re Gibson’s Settlement Trusts [1981] Ch 179, at 186H. 72

Funding 181

proceedings.78 However, he accepted that counsel for the claimant was entitled to observe that the defendant could have limited its costs liability by admitting liability prior to the inquest.79 However, it is important to remember that the court will consider the proportionality of any costs incurred.80 Furthermore, insofar as the costs of attending an inquest are claimed as investigatory costs, these will have to be included on any costs budget submitted as part of the costs management procedures under CPR Part 3. The court may record comments on the costs incurred and will take those costs into account when considering the reasonableness and proportionality of all subsequent costs.81 Note that some practitioners have claimed the costs of legal representation at an inquest as a head of pecuniary loss. There is currently no direct support for this from authority. It is remains to be seen what the outcome of any litigation on the point might be.82

II. Legislation and Other Sources Legal Aid, Sentencing and Punishment of Offenders Act 2012 8. Civil legal services (1) In this Part ‘legal services’ means the following types of services— (a) providing advice as to how the law applies in particular circumstances, (b) providing advice and assistance in relation to legal proceedings, (c) providing other advice and assistance in relation to the prevention of disputes about legal rights or duties (‘legal disputes’) or the settlement or other resolution of legal disputes, and (d) providing advice and assistance in relation to the enforcement of decisions in legal proceedings or other decisions by which legal disputes are resolved. (2) The services described in subsection (1) include, in particular, advice and assistance in the form of— (a) representation, and (b) mediation and other forms of dispute resolution. (3) In this Part ‘civil legal services’ means any legal services other than the types of advice, assistance and representation that are required to be made available under sections 13, 15 and 16 (criminal legal aid).

78

Roach para 62. ibid para 48. 80 ibid para 60. 81 CPR 3E.PD.7.4. 82 See Bubbins v United Kingdom (2005) 41 EHRR 24, [2005] Inquest LR 24, where the applicant claimed the cost of legal representation at an inquest as a head of damage. The court declined to make an award under this head of loss because it had found a breach of Art 13 ECHR but not Art 2. However, it did not rule that such a head of loss was irrecoverable per se (see paras 178–80). 79

182 Pritesh Rathod 9. General cases (1) Civil legal services are to be available to an individual under this Part if— (a) they are civil legal services described in Part 1 of Schedule 1, and (b) the Director has determined that the individual qualifies for the services in accordance with this Part (and has not withdrawn the determination). (2) The Lord Chancellor may by order— (a) add services to Part 1 of Schedule 1, or (b) vary or omit services described in that Part, (whether by modifying that Part or Part 2, 3 or 4 of the Schedule). 10. Exceptional cases (1) Civil legal services other than services described in Part 1 of Schedule 1 are to be available to an individual under this Part if subsection (2) or (4) is satisfied. (2) This subsection is satisfied where the Director— (a) has made an exceptional case determination in relation to the individual and the services, and (b) has determined that the individual qualifies for the services in accordance with this Part, (and has not withdrawn either determination). (3) For the purposes of subsection (2), an exceptional case determination is a determination— (a) that it is necessary to make the services available to the individual under this Part because failure to do so would be a breach of— (i) the individual’s Convention rights (within the meaning of the Human Rights Act 1998), or (ii) any rights of the individual to the provision of legal services that are enforceable EU rights, or (b) that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach. (4) This subsection is satisfied where— (a) the services consist of advocacy in proceedings at an inquest under the Coroners Act 1988 into the death of a member of the individual’s family, (b) the Director has made a wider public interest determination in relation to the individual and the inquest, and (c) the Director has determined that the individual qualifies for the services in accordance with this Part, (and neither determination has been withdrawn). (5) For the purposes of subsection (4), a wider public interest determination is a determination that, in the particular circumstances of the case, the provision of advocacy under this Part for the individual for the purposes of the inquest is likely to produce significant benefits for a class of person, other than the individual and the members of the individual’s family. (6) For the purposes of this section an individual is a member of another individual’s family if— (a) they are relatives (whether of the full blood or half blood or by marriage or civil partnership), (b) they are cohabitants (as defined in Part 4 of the Family Law Act 1996), or (c) one has parental responsibility for the other.

Funding 183

Legal Aid, Sentencing and Punishment of Offenders Act 2012, Schedule 1, Part 1 41. Civil legal services; services; inquests (1) Civil legal services provided to an individual in relation to an inquest under the Coroners Act 1988 into the death of a member of the individual’s family.83 (2) Sub-paragraph (1) is subject to— (a) the exclusions in Part 2 of this Schedule, with the exception of paragraph 1 of that Part, and (b) the exclusion in Part 3 of this Schedule. (3) For the purposes of this paragraph an individual is a member of another individual’s family if— (a) they are relatives (whether of the full blood or half blood or by marriage or civil partnership), (b) they are cohabitants (as defined in Part 4 of the Family Law Act 1996), or (c) one has parental responsibility for the other.

Guidance Lord Chancellor’s Exceptional Funding Guidance (Inquests), August 2015.84 Lord Chancellor’s Exceptional Funding Guidance (Non-Inquests), 9 June 2015.85

III. Cases NB This application of this case law to future cases needs to be carefully considered given the changes in guidance issued by the Lord Chancellor.

A. Legal Aid (i) R (Khan) v Secretary of State for Health [2003] EWCA Civ 1129, [2004] 1 WLR 971, [2003] Inquest LR 70 Keywords: Article 2, funding The deceased was a three-year-girl, receiving chemotherapy for B cell lymphoma and associated haemodialysis. During the course of her dialysis treatment, she received a grossly excessive amount of potassium chloride. The child then suffered a cardiac arrest and died.

83 84 85

See LASPO Sch 1, pt 2, paras 1–13 and Sch 1, pt 3, paras 1–8 for a list of services which are not included. See n 9. See n 49.

184 Pritesh Rathod

The potassium chloride level was high because the nurse who added potassium to the fluid bag did not mix the bag properly and another nurse did not check the first nurse’s actions. It was alleged that this constituted gross negligence. However, the CPS decided not to prosecute as they could not determine what the deceased’s cause of death was. The family was notified of an inquest. They approached the NHS Litigation Authority and the Secretary of State for Health for funding but both bodies declined the request. In the meantime, the NHS Trust concerned had carried out its own investigation but did not involve the family. The family applied for judicial review of the decision to refuse funding, alternatively they sought an independent non-statutory public inquiry. The judge at first instance decided that no fuller inquiry was required under human rights law than that which had already taken place. On the question of whether the holding of an inquest would satisfy the state’s obligations under Article 2 ECHR, Brooke LJ emphasised the importance of involving the family of the deceased in the inquiry, holding: 74. If the public judicial investigation required by Article 2 is to be an effective one—and by ‘effective’ we mean an investigation that satisfies the purposes described in paragraphs 40 to 43 of this judgment, reinforced as they are by the third principle we have derived from Lord Woolf ’s judgment in Amin86 (see para 67 above)—the inquest will not be an effective one unless Naazish’s family can play an effective part in it. The evidence shows (see para 24 above) that they are in no fit state to play that part themselves. Although the function of an inquest is inquisitorial, and in the overwhelming majority of cases the coroner can conduct an effective judicial investigation himself without there being any need for the family of the deceased to be represented, every rule has its exceptions, and this, in our judgment, is an exceptional case. We note that the authors of the recent Report of a Fundamental Review into Death Certification and Investigation in England, Wales and Northern Ireland (Cm 5631) share our view, in Chapter 9 of their report, that in an exceptional case something more is needed.

(ii) R (Humberstone) v Legal Services Commission [2010] EWCA Civ 1479, [2011] 1 WLR 1460, [2010] Inquest LR 221 Keywords: Article 2, funding The deceased was a 10-year-old boy who suffered an asthma attack on his way home from school. A paramedic attended and checked the child’s oxygen level, which was low. The boy then collapsed. The paramedic instructed the boy’s mother’s partner to commence cardiopulmonary resuscitation while he (the paramedic) telephoned ambulance control. An ambulance arrived and transferred the deceased to hospital but attempts to resuscitate him were unsuccessful. The boy’s mother was arrested on suspicion of gross negligence manslaughter. It was alleged that the mother had not looked after her son properly. Eventually, the police declined to charge the mother. Nevertheless, the coroner was concerned that the medical witnesses would criticise the mother’s care when they gave evidence. The coroner suggested that the mother be legally represented. 86

Amin (n 16).

Funding 185

The Legal Services Commission refused to recommend funding on the basis that (in accordance with guidance that was in force at the time) even if there was a possible breach of the state’s substantive obligations under Article 2 ECHR (which was not accepted), the circumstances were not exceptional so as to justify funding. The mother would be able to participate effectively in the inquest without needing to be legally represented. The decision to refuse funding was judicially reviewed on the grounds that the Legal Services Commission was wrong to conclude that Article 2 was not engaged and that the Commission unreasonably failed to recognise the mother’s exceptional circumstances (namely, as an eyewitness whose conduct might be called into question and where she might suffer the stigma of being criticised as a bad mother). At first instance, Hickinbottom J held that Article 2 was engaged and that the state was required to undertake an effective investigation. He went on to find that the refusal to fund the mother’s representation was unlawful and the decision not to recommend funding was quashed. The Commission appealed. Before the appeal, the family had obtained documentation suggesting potential systemic failures on the part of the ambulance service. Before the appeal the Commission reconsidered its decision and allowed the funding application, but without prejudice to the appeal. After concluding that the enhanced investigative obligation under Article 2 was engaged (as a result of the new evidence obtained by the family, the absence of which would have precluded such a conclusion being reached), Smith LJ held: 73. Returning now to the provisions governing the grant of legal representation. The Lord Chancellor’s guidance draws a distinction between those inquests where Article 2 is engaged and those where it is not. I am quite satisfied that the intention behind this guidance is that (save where the residual discretion may be invoked in extremely unusual cases) funding for representation will be provided only in the circumstances where the law requires it to be provided, namely where there is an Article 2 obligation on the state to initiate an effective investigation and where representation is likely to be necessary to enable the close family to play an effective part in that investigation. His guidance must provide for representation where the law requires it but he need go no further. 74. I am satisfied that the duty in some circumstances to provide legal representation arises only in proceedings where Article 2 is engaged and not otherwise. Where Article 2 is not engaged, Parliament has given the Lord Chancellor the power to exercise a residual discretion in any individual case and he is entitled to issue guidance in whatever terms he thinks fit. That includes limiting the exercise of the discretion to ‘extremely unusual’ cases. 75. There are several respects in which I consider that the guidance in relation to Article 2 inquests is less than satisfactory. The first is the way in which the test for representation is expressed. At paragraph 27.2.8, it is said that the funded representation is likely to be necessary to enable the coroner to carry out an effective investigation into the death. At paragraph 27.3.3, it is said that advocacy services may be funded where the Commission is satisfied that funded representation is necessary to assist the coroner to investigate the case effectively and establish the facts. In both these paragraphs, the emphasis is on the needs of the coroner so that he can conduct an effective investigation. In one sense that is right; the duty on the state is fulfilled by the coroner’s effective investigation. But, for the investigation to be effective, the family must be able to play an effective part. So, the immediate question for the decision–maker at the Commission, considering whether to recommend representation, is whether such is necessary to enable to family to play an effective part. In other words, the decision must focus on the effective participation of the family and not on the needs of the coroner.

186 Pritesh Rathod 76. My second concern relates to the stipulation that representation will only be given for an Article 2 inquest in exceptional cases. This expression is used several times in the guidance. I recognise that the term exceptional was used in that context first by Richards J in Goodson87 and by the Court of Appeal in Khan88 where the court said, at paragraph 74: ‘Although the function of an inquest is inquisitorial, and in the overwhelming majority of cases the coroner can conduct an effective judicial investigation himself without there being any need for the family of the deceased to be represented, every rule has its exceptions and this in our judgment is an exceptional case.’ 77. It is however, important to remember the test which must be applied when deciding whether the state should fund representation. The duty to provide representation is derived from the fifth criterion which must be satisfied in an enhanced investigation as described in Jordan v United Kingdom [2003] 37 EHRR 52. The requirement is that the next of kin must be involved in the procedure to the extent necessary to safeguard their legitimate interests. This requirement was adopted by Lord Bingham of Cornhill in R (Amin) v Secretary of State for Home Department [2004] 1 AC 653 at para 20. From that requirement flows the duty to provide representation where it is likely to be necessary to enable the next of kin to play an effective part in the proceedings. 78. Whether such representation is likely to be necessary in a particular case is a matter of judgment dependent on the facts of the individual case and, as the Lord Chancellor’s guidance correctly states, on all the circumstances of the case. However, I do not think that it should be necessary or appropriate to classify a case as ‘exceptional’ before it can be adjudged to give rise to a need for representation. In my judgment, references to ‘exceptionality’ are likely to take the mind of the decision-maker away from the question properly to be considered. I can understand that the court in Khan was anxious to avoid giving the impression that representation would be necessary in a great many cases. I can understand why it thought it appropriate to suggest that it would not be necessary in most cases, although I am unable to understand how and why the court felt able to go so far as to say that it would not be necessary in ‘the overwhelming majority of cases’. Without a statistical analysis, I do not think anyone could say in what proportion of cases representation will be likely to be necessary. 79. A further concern arises from the statement at paragraph 27.4.9 that the starting point for consideration of whether funded representation will be necessary is that in the majority of cases the family will be able to participate effectively without the need for advocacy services. It is said that in general the ability to attend and understand the proceedings together with an opportunity to raise any particular matter of concern with the coroner will be sufficient. First, this passage seems to create a presumption against the grant of representation which I do not think is consistent with the application of the test. But, in addition, the passage seems to overlook the right of a close family member, pursuant to rule 20 of the Coroners’ Rules to question witnesses. Of course some family members will be able to exercise that right competently, although I think it will often be difficult for them to do so. But to suggest that in general it will be enough for them to be able to tell the coroner of their concerns seems to me to contemplate that they can properly be deprived of their right to question witnesses.

The Court of Appeal dismissed the appeal, holding that there was sufficient evidence to raise concerns about systemic failings to engage Article 2 and that, given the medical

87 Goodson v HM Coroner for Bedfordshire and Luton [2004] EWHC 2931 (Admin), [2006] 1 WLR 432, [2004] Inquest LR 226. 88 R (Khan) v Secretary of State for Health [2003] EWCA Civ 1129, [2004] 1 WLR 971, [2003] Inquest LR 70.

Funding 187

c omplexities and the claimant’s educational difficulties, the claimant would not be able to play an effective part in proceedings without representation.

(iii) R (Ali Zaki Mousa) v Secretary of State for Defence [2013] EWHC 2941 (Admin) Keywords: Article 2, funding In order to investigate deaths in respect of which the Iraq Historical Abuses Team declined to bring prosecutions, or where prosecutions had been discontinued, the President of the Queen’s Bench Division considered that the most appropriate Article 2-compliant inquiry would be that based on a coroner’s inquest. In relation to the need for legal assistance, the court held: 40. We expressed the view … that legal assistance to those asked to give evidence could be calibrated according to the needs. We said that there would be no need for the families of those whose deaths were being investigated to have extensive legal representation. The person conducting the inquiry could examine the witness; the families would require some legal help in understanding the procedure and when giving their evidence. We envisaged that help being provided in Iraq. 41. It was submitted on behalf of the claimant that this would not be sufficient as without more extensive legal assistance there would not be effective participation by the families in the inquiry to the extent necessary to safeguard their legitimate interests. 42. We accept in the light of the decision in R (Humberstone) v LSC [2011] 1 WLR 1460 that funding will be required for legal assistance in relation to participation to the extent necessary to safeguard the legitimate interests of the families (see paragraph 73 of the decision). However, as we have set out at paragraphs 38–39, we have concluded that in the type of inquiry we envisage, there is no right for questions to be asked by those interested. In these circumstances there is therefore no need for an advocate to be instructed on behalf of the family. 43. We would, nonetheless, envisage some legal assistance being needed so that the families can raise issues with the Inspector [the Chair of the Inquiry] and can properly give their own evidence. It would not be appropriate for us at this stage to comment on the level of funding or on how the arrangements to provide this are to be set out in the terms of reference or a protocol. Furthermore, as we have already made clear, the witnesses who are resident in Iraq should be able to give their evidence by video link; subject to issues of security, we would hope that arrangements can be made for the legal help primarily to be given in Iraq or by video link to Iraq. 44. We should add that, as it is possible that the Inspector might exercise his discretion and allow questions to be asked, the question of the adequacy of representation can be addressed at the time the Inspector makes that decision. It will not be necessary at the outset to provide for representation on the basis that such an eventuality might arise.

(iv) R (Gudanaviciene) v The Director of Legal Aid Casework [2014] EWCA Civ 1622 Keywords: Funding This case did not relate to an inquest, but the principles apply nonetheless to coronial law. The applicants applied for legal aid in respect of various immigration-related applications/ appeals, pursuant to section 10(3)(a) and (b) of LASPO (exceptional funding). The

188 Pritesh Rathod

Court of Appeal considered the Lord Chancellor’s Exceptional Funding Guidance (NonInquests), which emphasised the exceptional nature of the funding to be provided and the rarity of the cases in which it would be granted. On the interpretation of those subsections, the Master of the Rolls held: 31. We see no warrant for construing section 10(3)(a) as imposing a condition that an ECF [exceptional case funding] determination should only be made where it can definitely be said (Coulson J’s formulation) that refusal would be a breach; or where there is a ‘high level of probability’ that refusal would be a breach (Collins J’s test). There is no need to add a gloss to the wording of the statute ‘would be a breach’. In deciding whether there would be a breach, the Director should apply the principles to be derived from the case-law (some of which is mentioned at para 27 of the Guidance). There is no need for elaboration. When determining whether a complaint of a breach of Convention rights has been established, the ECtHR does not ask itself whether there has definitely been a breach or whether there has been a breach to a high level of probability. It simply asks whether there has been a breach. In our view, this approach should inform the meaning of the words ‘would be a breach’ in section 10(3)(a). We do not consider that the word ‘clearly’ in the Explanatory Notes (see para 9 above) takes the argument any further. We should add that we accept the submission of Mr Chamberlain that the ‘real risk of a breach’ is a concept which has no part to play in the exercise envisaged by section 10(3). Section 10(3)(a) speaks of the situation where a failure to make civil legal services available would be a breach, not where there would be a real risk of a breach. The concept of real risk has no part to play in the question whether the denial of legal aid would amount to a breach of an individual’s procedural rights under the Convention or under Article 47 of the Charter. 32. In short, therefore, if the Director concludes that a denial of ECF would be a breach of an individual’s Convention or EU rights, he must make an exceptional funding determination. But as we shall see, the application of the ECtHR and CJEU case-law is not hard-edged. It requires an assessment of the likely shape of the proposed litigation and the individual’s ability to have effective access to justice in relation to it. The Director may conclude that he cannot decide whether there would be a breach of the individual’s Convention or EU rights. In that event, he is not required by section 10(3)(a) to make a determination. He must then go on to consider whether it is appropriate to make a determination under section 10(3)(b). In making that decision, he should have regard to any risk that failure to make a determination would be a breach. These words mean exactly what they say. The greater he assesses the risk to be, the more likely it is that he will consider it to be appropriate to make a determination. That is because, if the risk eventuates, there will be a breach. But the seriousness of the risk is only one of the factors that the Director may take into account in deciding whether it is appropriate to make a determination. He should have regard to all the circumstances of the case.

Further in respect of section 10(3)(b), Lord Dyson MR held: 44. It is necessary to repeat the relevant passages. Para 7 states that section 10(3)(b) of LASPO should be used ‘in those rare cases where it cannot be said with certainty whether the failure to fund would amount to a breach’. The only example given of a case where funding may be appropriate is where the case law is uncertain ‘(owing, for example, to conflicting judgments)’. In our view, this misinterprets section 10(3)(b). The discretion conferred by this provision is not so severely circumscribed. There is no basis for saying that it may only be exercised in such rare circumstances. The extreme nature of the single example that is given shows how rarely the Guidance contemplates that it will be appropriate to make an exceptional case determination under section 10(3)(b). Para 9 states that the ECtHR has recognised that there are ‘very limited’ circumstances in which the failure to provide legal aid may amount to a breach of Convention rights. Para 10 states that the threshold

Funding 189 for a breach of an applicant’s rights under Article 6(1) is ‘very high’. Para 12 states that in certain ‘very limited’ circumstances, legal aid may be required in order to guarantee right of access to a court in civil proceedings. Para 18 states that the X v UK test is a ‘very high threshold’. 45. In our judgment, the cumulative effect of these passages is to misstate the effect of the ECtHR jurisprudence. As we have seen, the Guidance correctly identifies many of the particular factors that should be taken into account in deciding whether to make an exceptional case determination, but their effect is substantially neutralised by the strong steer given in the passages that we have highlighted. These passages send a clear signal to the caseworkers and the Director that the refusal of legal aid will amount to a breach of Article 6(1) only in rare and extreme cases. In our judgment, there are no statements in the case-law which support this signal. For the reasons stated earlier, we do not consider that the reference in X v UK to ‘exceptional circumstances’ provides support for it.

(v) R (Letts) v The Lord Chancellor [2015] EWHC 402 (Admin) Keywords: Article 2, funding, mental health The Lord Chancellor initially refused to provide legal aid to the family of the deceased, a voluntary patient at a psychiatric hospital who committed suicide after being discharged. The claimant moved for judicial review of this decision and ultimately, funding was granted. However, an issue arose as to the correctness of the Lord Chancellor’s Exceptional F unding Guidance (Inquests), namely whether the requirement to show an ‘arguable breach’ of Article 2 was correct in law. Green J found that this requirement was erroneous, holding: 95. First, the Guidance indicates that there is but one trigger for Article 2, namely evidence of arguable breach by the State: See, e.g. para [54(iv)] above. This is incorrect in that case law identifies a variety of circumstances and types of case of real public importance and significance where the duty arises independently of the existence of evidence of arguable breach. 96. Secondly, where the Guidance refers to case types where the test may be modified (for example in the case of death in custody) it persists in articulating the test upon the basis of arguability of breach. Since these case types include cases where the law now makes clear that the duty can arise automatically the reference to the arguability test is wrong in law: See para [54(vii)] above. 97. Thirdly, and related to the first two errors, is the failure even at a broad level to acknowledge the existence of cases where the test is other than arguability. 98. In arriving at these conclusions I need to put down a marker as to the limits of my judgment. 99. The present case concerns the death of a voluntary psychiatric patient. I have found it valuable to consider the facts relating to Mr Letts, largely by way of context. But even here it has not been necessary in order to determine this application for judicial review to proceed to determine whether on the facts before the Court there was or was not a breach, or even an arguable breach, by the state in the events which led up to the tragic death of Christopher Letts and equally I have not been required to decide whether the initial refusal to grant legal aid was unlawful. The position in relation to different categories of case (i.e. other than mental health) is also fact sensitive and on the state of the present case law complex. By way of illustration the Claimant submits that deaths in custody trigger the automatic duty but the Claimant also conceded that it was not entirely clear whether the duty to investigate was automatically triggered in respect of ‘all such deaths’. Mr Chamberlain QC for the Defendant submitted that this showed the dangers of over-reaching the issue and trespassing into issues which were not squarely before the court; and I agree. Indeed,

190 Pritesh Rathod even in relation to mental health suicides the outer limits of the automatic duty are not crystal clear. For example, would Article 2 apply to the case of a voluntary mental health patient who had been discharged from hospital but who committed suicide 6 weeks later? Would the answer differ if the patient was under the care of community mental health specialists? 100. Nonetheless the error of law in the Guidance is material and this conclusion is unaffected by the fact that the ‘automatic’ cases are not precisely delineated. It is not necessary to fix the exact parameters of the types of case where the automatic duty arises in order to be able to say that there are such categories and it is the failure to acknowledge the existence of the categories that is the real error in this case.

B. Recoverability of Costs (i) Roach v The Home Office [2009] EWHC 312 (QB), [2009] Inquest LR 45 Keywords: Funding The High Court considered two appeals from detailed assessment proceedings. Both cases involved inquests into the deaths of prisoners in custody where the cause of death was suicide. In both cases, civil proceedings were commenced in connection with the death and were settled after the inquest. An issue arose as to whether the cost of representation at the inquest could constitute costs ‘incidental to’ the civil proceedings, pursuant to section 51(1) of the Senior Courts Act 1981. The Home Office, who was liable for the costs, submitted that the costs of attending an inquest could never be recovered as costs incidental to other proceedings. Having reviewed the authorities, Davis J held: 41. It is, as I see it, impossible to extract such a rule, as argued for by Mr Morgan [counsel for the Home Office], from the wording of section 51 itself. On the contrary, the wide wording of the section, as set out in subsections (1) and (3), is inimicable to there being such a rule or such a fetter on the court’s powers. Of course, in jurisdictional terms, I accept that the costs must be ‘of and incidental to’ the civil proceedings to be recoverable at all. However, as Mr Morgan was constrained to accept, the existence of such a so called ‘rule’ was inconsistent with the concession made by the Home Office in the Roach case before the Costs Judge that the costs of a noting brief could be allowed—a concession which Mr Morgan (who did not himself appear below) made clear that he did not seek to retract. 42. Mr Morgan’s asserted rule gives rise to yet further difficulties. He accepted that, where a solicitor did not attend the inquest, such solicitor, on behalf of his client, might well be able to claim as costs incidental to civil proceedings—and at all events was not precluded in principle from claiming— the costs of the solicitor prior to commencement of proceedings of interviewing and obtaining relevant proofs of evidence from witnesses who had given evidence at the inquest. But if that is so, then—as Deputy Costs Judge Rowley noted—there seems no reason in sense or in logic why the costs of instead attending the inquest to note the evidence (and, it may be, also to assess the witnesses) should be incapable of being allowed as incidental costs. Indeed one can readily envisage that in many cases such a course may be cheaper, and more useful, than the cost of proofing such witnesses afterwards. To assert, therefore, as Mr Morgan did, that the inquest had ‘nothing to do’ with the civil claim cannot, as a general proposition, be correct. It may be that can in some respects be said of the purpose of an inquest (‘who? when? where? how?’) taken on its own. No doubt too

Funding 191 it can be said that an inquest would have occurred even if civil liability had been admitted prior to the inquest. But that tells one nothing conclusive where civil proceedings follow after an inquest and tells one nothing of the purpose or relevance of attendance at the inquest to the subsequent civil proceedings. The purpose of an inquest is not to be equated with the purpose (or relevance) of attendance at an inquest. 43. I therefore find it difficult to see any convincing rationale for Mr Morgan’s asserted rule. I can well see that where in one set of proceedings a court having power to order costs in terms declines to do so then such order cannot necessarily be trumped by seeking the self-same costs in subsequent proceedings as, purportedly, costs ‘of and incidental to’ the subsequent proceedings. Wright v Bennett89 can be taken as an illustration of that. But that is not a situation comparable to these instant cases.

In assessing costs, Davis J emphasised the importance of relevance: 56. The Master considered that the role of the lawyers in attending the inquest on behalf of Mr and Mrs Roach fell into ‘two equal parts’: assisting the coroner and obtaining evidence necessary to pursue the civil claim. He also went on, however, to hold that ‘the subject matter of the inquest and of the civil claim was virtually identical’: the Master made no finding that any parts of the inquest were of no sufficient relevance to the civil proceedings. 57. Purpose no doubt will be a relevant consideration, but I do not see how in this context it can be decisive: and there are good reasons why it should not be. Take, for example, the case of a parent attending an inquest with lawyers, with no purpose at all of initiating subsequent civil proceedings and being motivated solely by a desire to help reveal the true position for the purposes of the inquest. If such a parent is so disconcerted by what emerges at the inquest as thereafter to change his or her mind and to start civil proceedings, there can be no reason at all, in my view, for thereafter entirely precluding a claim for costs of attending the inquest, as being incidental to the civil proceedings, simply because at the time of the inquest there was no purpose of obtaining evidence to assist the civil proceedings. Conversely, suppose the case of a parent or other relative whose sole purpose in attending, with lawyers, the inquest is with a view to obtaining evidence to assist in contemplated civil proceedings. There can, in my view, be no reason for such a person subsequently to claim to be entitled to 100% of such costs, as incidental to the civil proceedings, simply because that was his or her sole purpose at the time. (It is in fact rather difficult to see how a division in percentage terms can be made solely on an assessment of a split purpose—what percentage, for instance, can be ascribed to a ‘predominant’ purpose?). At all events, such an approach, as I see it, would not be consistent with the objective language of section 51 itself. Here too it is also necessary to distinguish the purpose of an inquest from the purpose of a party’s attendance at an inquest. 58. It is further essential, applying the Gibson90 principles, to have regard to considerations of relevance where the costs of attendance at an inquest are claimed, in whole or in part, as costs incidental to the subsequent civil proceedings. But that did not happen here: and I do not think that a dual ‘purpose’, as identified, can of itself be a justifiable basis for the division the Master made here. I should add that I was informed that neither counsel appearing before the Master had made such a suggestion of an equal division on such a basis. 59. I therefore think that the appeal of the receiving parties in the Roach must be allowed. It does not at all follow, however, that the receiving parties in the Roach case are entitled to 100% of their inquest costs.

89 90

Wright v Bennett [1948] 1 KB 601. Gibson (n 77).

192 Pritesh Rathod

The judge was asked to provide guidance for the assistance of costs judges and practitioners as to the circumstances in which the costs of attending an inquest would be recoverable. Davis J declined the invitation, stating: 62. It seems to me that the discretionary regime available to Costs Judges in this context, and the application of section 51 and Rule 44, will not be advantaged by further guidelines (so called): each case should properly be decided by reference to its own circumstances. I am fortified in this view by the suggestion, as to which I express no opinion, that what is decided in these cases (which relate solely to inquests preceding a subsequent resolution of civil proceedings) may also be relevant in other contexts: for example, attendance prior to civil proceedings at a criminal trial involving death by dangerous driving or a criminal trial involving Health and Safety issues. Better, I think, to leave it to Costs Judges to decide each case on its own facts by reference to section 51 and the subordinate statutory rules and having regard to the principles indicated in Gibson.

(ii) Lynch v Chief Constable of Warwickshire Police & Ors (High Court, SCCO, 14 November 2014) Keywords: Funding, unlawful killing The receiving party incurred costs in the region of £600,000 to £750,000 in relation to preparation for, and attendance at, a 38-day inquest into the death of Colette Lynch, who was killed by Percy Wright, her former partner and the father of one of her children. It was alleged that Warwickshire Police, Warwickshire County Council and Coventry and Warwickshire NHS trust all knew about Mr Wright’s mental health problems. At the inquest, a jury returned a verdict of unlawful killing, concluding that the death was contributed to by failure on the part of all three defendants as emanations of the state. Protective proceedings had been issued prior to the inquest. After the inquest, the claims settled. At the detailed assessment of the costs of those proceedings, various attacks were made on the recoverability of large swathes of the receiving party’s costs. Master Rowley, Costs Judge, considered the judgment of Davis J in Roach and made the following remarks on the need for costs to be proportionate: 62. Earlier in his judgment, Davis J. referred to the use of the inquest to gather evidence rather than to do so by taking witness statements outside the inquest process. He could ‘readily envisage that in many cases such a course may be cheaper, and more useful, than the cost of proofing such witnesses afterwards.’ 63. The theme of these two passages91 is the efficient and cost-effective method of evidence gathering for the purpose of the civil claim. The second quotation makes the point that concentrating the witnesses into a hearing may be much better than tackling them individually. But the first quotation warns against the possibility that the hearing may create costs that are disproportionate to the damages at stake or the saving to be made in the subsequent proceedings. 64. In this case the agreed damages were unusually high for an Article 2 claim, reflecting the other heads of loss that were established on the particular facts here. Notwithstanding that figure, I have already ruled that I consider the costs claimed by the Claimants to be globally disproportionate

91

Roach (n 72) paras 42 and 60.

Funding 193 and as such need to apply the necessity test as promulgated in Lownds v Home Office [2002] EWCA Civ 365. If the damages at stake had been at the level normally recoverable in Article 2 Claims the £600,000 to £750,000 of ‘inquest costs’ previously mentioned would be all the more starkly disproportionate. 65. If this case were to be commenced now, it would be one to which the costs management regime would apply. It is inconceivable, in my judgment, that the approach adopted by the Claimants in this case would be upheld as a proportionate method of bringing these claims to a civil hearing. No case managing judge would allow sums of the magnitude claimed here to be spent in the working up of the claim before the close of pleadings in the court proceedings.

With regard to the desirability of being able to test the evidence prior to the commencement of civil proceedings, Master Rowley held: 79. Whilst I entirely understand the Claimants’ view that they should make the fullest use of the inquest possible in terms of witness evidence and disclosure, it does not seem to me to be the answer to what is the reasonable and proportionate amount of costs to be claimed in the civil proceedings. It would always be desirable to obtain all the evidence and to test it in a quasi-court room atmosphere before embarking on a claim. But that cannot be the correct measure of what is necessary to bring proceedings. 80. It is rarely the case, in my view, that parties have every last piece of evidence to hand before embarking on proceedings. There are usually gaps to some extent which are filled as the case progresses. The case here could essentially be pleaded without any of the evidence from the inquest itself. If some of the evidence, as Ms Monaghan suggests, would not have been available until after pleadings had closed and disclosure or exchange of evidence (or even examination at trial) had taken place, that would not put these Claimants at any disadvantage compared with any other litigant.

As to costs associated with the summing up, questions to the jury and the verdict, Master Rowley held that these would only be recoverable if they were of some use and benefit to the civil claim. The Master ruled that they were not: 82. The concept of use and benefit, in my judgment, must be viewed in respect of the proceedings themselves and not any negotiations outside those proceedings. As far as the proceedings are concerned, the verdict and all the matters that go immediately before it, are irrelevant. I do not accept the Claimants’ argument that, in the absence of the full participation of the Claimants’ team, including the securing of a helpful verdict, there would inevitably have been a fully contested civil trial as Ms Ricca suggests. But, if the Defendants had decided to defend this case, the verdict reached would not have prevented the Defendants from going to a fully contested trial. 83. The benefit of a positive verdict to the Claimants is entirely in the possible crumbling of the Defendants’ resolve to defend the claim. The verdict might have had this effect in bringing the Defendants to the settlement table as the Claimants suggest. It may be that the Defendants had an entirely different reason for doing so as Mr Bacon informed me was the case. It might simply have been that, having considered the evidence that was available to the parties from the various proceedings, the Defendants wished to compromise without risking the further expense of a trial. Such a conclusion would be based on the evidence rather than the verdict. It cannot be said for certain what the cause of the settlement was. Therefore, even if, contrary to my view, work done can be of use and benefit towards negotiation rather than evidence gathering for the court proceedings, I do not see how the Claimants can prove the utility of the verdict in the absence of any confirmation of the Defendants in why the case settled.

194 Pritesh Rathod 84. Mr Westgate suggested that it was a reasonable and proportionate approach to ensure damning verdict was achieved. It seems to me that it was anything but that approach in relation to the civil claim. Putting aside the fact that counsel for the inquest was able to assist the Coroner with the legal aspects in any event, the Claimants’ approach would incur virtually £50,000 for the period from 9 December 2009 when the Coroner began his summing up until 18 December when the Verdict was delivered. At no point during that period was any evidence gathered; it was simply the view of the jury and the Coroner on evidence that, if necessary, have to be tested again at a trial. 85. Accordingly, I prefer the approach of Master Gordon-Saker in King92 rather than Master Campbell in Wilton in relation to the post evidence gathering phase of the inquest.

92 King v Milton Keynes General NHS Trust [2004] Inquest LR 72, where Master Gordon-Saker said that ‘the cost of work done to persuade the Coroner to reach a particular verdict is not, in my view, recoverable. While the verdict reached may have brought a speedy settlement, such work was not done with the purpose of obtaining information or evidence for the proposed claim’.

11 The Jury RICHARD MUMFORD

I. Overview Whilst the majority of inquests will not involve the summoning of a jury, there nonetheless continues to be a substantial number of cases, often the most publicised or controversial, in which juries will play a part. This chapter will address the circumstances in which a jury will or may be required and set out the statutory provisions in relation to the summoning and qualification of jurors. Juries were dealt with under sections 8–10 and 12 of the Coroners Act 1988; these sections have since been replaced by sections 7–9 of the Coroners and Justice Act 2009 (CJA 2009). Section 8(3)(d) of the 1988 Act (which mandated juries in a wide but nebulous category of cases where it appeared to a coroner that ‘the death occurred in circumstances the continuance or possible recurrence of which is prejudicial to the health and safety of the public or any section of the public’) has no direct counterpart in the 2009 Act, other than the residual discretion of the senior coroner to summon a jury ‘if there is sufficient reason to do so’. Another notable feature of the 2009 Act is the extension of the duty to summon a jury to those cases where there is reason to believe that the deceased died while in custody ‘or otherwise in state detention’ and the death was violent or unnatural or its cause unknown (section 7(2)(a)). Under section 48 of the CJA 2009 ‘[a] person is in state detention if he or she is compulsorily detained by a public authority within the meaning of section 6 of the Human Rights Act 1998.’ This is wide enough to include those compulsorily detained in prisons, police stations, military detention, psychiatric hospitals and immigration detention centres.1 The contrast with the 1988 Act can be seen particularly in relation to a death in psychiatric custody; such deaths were usually referred to a coroner for an inquest either under section 8(1)(a) or (b) of the 1988 Act but there was no obligation to hold the inquest with a jury, unless one of the general criteria at section 8(3), most frequently 8(3)(d), was satisfied.2

1 But not those detained in custody abroad; see Shafi v HM Senior Coroner for East London [2015] EWHC 2106 (Admin) para 62 (see further below). 2 For discussion of this point see R (on the application of Antoniou) v Central and North West London NHS Foundation Trust, The Secretary of State for Health, NHS England [2013] EWHC 3055 (Admin).

196 Richard Mumford

A particular issue arises in relation to the deaths of individuals who are deprived of their liberty under the Mental Capacity Act 2005, a situation commonly referred to as one where Deprivation of Liberty Safeguards (DoLS) apply. The Chief Coroner has expressed the view that ‘on the law as it now stands, the death of a person subject to a DoL should be the subject of a coroner investigation because that person was in state detention within the meaning of the Coroners and Justice Act 2009.’3 However, the requirement that the death be violent or unnatural or its cause unknown will still apply, meaning that in the majority of such cases a jury inquest will not be required. The Chief Coroner has also observed that the Article 2 procedural duty (ie to hold a Middleton-type inquest) ‘may … arguably arise where the death is not from natural causes and/or the fact of detention under DoLS may be a relevant factor in the cause of death’.4

II. Legislation and Other Sources Coroners and Justice Act 2009 7. Whether jury required (1) An inquest into a death must be held without a jury unless subsection (2) or (3) applies. (2) An inquest into a death must be held with a jury if the senior coroner has reason to suspect— (a) that the deceased died while in custody or otherwise in state detention, and that either— (i) the death was a violent or unnatural one, or (ii) the cause of death is unknown, (b) that the death resulted from an act or omission of— (i) a police officer, or (ii) a member of a service police force, in the purported execution of the officer’s or member’s duty as such, or (c) that the death was caused by a notifiable accident, poisoning or disease. (3) An inquest into a death may be held with a jury if the senior coroner thinks that there is sufficient reason for doing so. (4) For the purposes of subsection (2)(c) an accident, poisoning or disease is “notifiable” if notice of it is required under any Act to be given— (a) to a government department, (b) to an inspector or other officer of a government department, or (c) to an inspector appointed under section 19 of the Health and Safety at Work etc. Act 1974 (c. 37).

3 4

Chief Coroner’s Guidance No. 16, para 45. ibid, para 63.

The Jury 197 8. Assembling a jury (1) The jury at an inquest (where there is a jury) is to consist of seven, eight, nine, ten or eleven persons. (2) For the purpose of summoning a jury, a senior coroner may summon persons (whether within or without the coroner area for which that coroner is appointed) to attend at the time and place stated in the summons. (3) Once assembled, the members of a jury are to be sworn by or before the coroner to inquire into the death of the deceased and to give a true determination according to the evidence. (4) Only a person who is qualified to serve as a juror in the Crown Court, the High Court and the county court, under section 1 of the Juries Act 1974 (c. 23), is qualified to serve as a juror at an inquest. (5) The senior coroner may put to a person summoned under this section any questions that appear necessary to establish whether or not the person is qualified to serve as a juror at an inquest. 9. Determinations and findings by jury (1) Subject to subsection (2), a determination or finding that a jury is required to make under section 10(1) must be unanimous. (2) A determination or finding need not be unanimous if— (a) only one or two of the jury do not agree on it, and (b) the jury has deliberated for a period of time that the senior coroner thinks reasonable in view of the nature and complexity of the case. Before accepting a determination or finding not agreed on by all the members of the jury, the coroner must require one of them to announce publicly how many agreed and how many did not. (3) If the members of the jury, or the number of members required by subsection (2)(a), do not agree on a determination or finding, the coroner may discharge the jury and another one may be summoned in its place. … (2) A person is in state detention if he or she is compulsorily detained by a public authority within the meaning of section 6 of the Human Rights Act 1998 (c. 42).

See also: —— Paragraph 11 of Schedule 1 for the resumption of investigation, and —— Section 1 of the Juries Act 1974 for qualification for jury service.

Coroners (Inquests) Rules 2013 (2013/1616) PART 5 Jury inquests 28. This Part applies to inquests heard or to be heard with a jury. Method of summoning jurors

198 Richard Mumford 29. (1) A juror must be summoned using Form 1. (2) Form 1 must be sent by post with a return envelope, to the juror or delivered by hand at his or her address as shown in the electoral register. Summoning in exceptional circumstances 30. If it appears to the coroner that a jury will be, or probably will be, incomplete, the coroner may require any persons up to the number needed who are in, or in the vicinity of, the place of the inquest hearing to be summoned (without any written notice) for jury service. Certificate of attendance 31. A person duly attending an inquest hearing to serve on a jury in compliance with a summons issued under rule 29 or rule 30 is entitled on request to the coroner to a certificate recording that fact. Validity of proceedings where jury not present 32. Where an inquest hearing begins without a jury but a jury is subsequently summoned, the validity of anything done by the coroner before the jury was summoned is still effective. Summing up and directions to the jury 33. Where the coroner sits with a jury, the coroner must direct the jury as to the law and provide the jury with a summary of the evidence.

Guidance —— —— —— ——

Chief Coroner Guidance No 10, ‘Warnings to Juries’5 Chief Coroner Guidance No 11, ‘Juries in Railway Cases (Suicides and Accidents)’6 Chief Coroner Guidance No 16, ‘Deprivation of Liberty Safeguards (DoLS)’7 Chief Coroner Guidance No 17, ‘Conclusions: Short-form and narrative’8

III. Cases A. When must a Jury be Called—CJA 2009, Section 7(2) A degree of caution should be exercised in the extrapolation of judicial decisions under the old statutory scheme to the new regime, especially in the context of cases seeking to define or limit the effect of the open-ended and now defunct section 8(3)(d) of the 1988 Act.

5 www.judiciar y.gov.uk/related-offices-and-bodies/office-chief-coroner/guidance-law-sheets/ coroners-guidance/. 6 ibid. 7 ibid. 8 ibid.

The Jury 199

However, the selection of cases below may nonetheless be of assistance in the interpretation of the particular phrase ‘reason to suspect’, which has been retained under the 2009 Act, as well as the scope of the mandatory provisions, particularly in relation to deaths in custody.

(i) R v Inner North London Coroner ex p Linnane [1989] 1 WLR 395 Keywords: Jury, police, prisons The deceased suffered from epilepsy and alcoholism. He had been sentenced to a term of imprisonment but because of overcrowding was being held in a police station. During the evening of 8 October 1988 his son visited him and found him naked, except for a paper towel around his waist, shaking and with blue lips. The son suggested that the deceased required hospital attention. Later, the deceased was found unconscious in his cell. After an ambulance failed to arrive, the deceased was taken by police van to hospital, where he died the following evening. The cause of death was reported to be acute myocarditis. The inquest was opened without a jury. The coroner considered he was not bound by section 8(3)(b) of the 1988 Act to summon a jury as there was no evidence in the pathologists’ reports that any treatment, or lack of it, whilst the deceased had been in police custody, had affected the cause of death. Furthermore, the coroner considered that there was no significant possibility of the exceptional circumstances recurring, therefore section 8(3)(d) was not engaged. The Divisional Court (Taylor LJ and Henry J) granted an order of mandamus to compel the coroner to empanel a jury, holding that the deceased, as a prisoner serving his sentence had been ‘in police custody’ at the time of his death. Furthermore, the Court held that on a true construction of section 8(3)(d), it was not necessary to demonstrate a causal link between death and the circumstances of which ‘the continuance or possible recurrence … is prejudicial’ to the health and safety of the public, merely that such circumstances existed when there was a death—accordingly, by considering the cause of death the coroner had applied the wrong test. Per Taylor LJ at 398D: The phrase ‘If it appears to a coroner,’ which governs the whole of subsection (3) of section 8, leaves the decision of whether to summon a jury under that subsection solely to the coroner. His decision can only be overturned if he has misdirected himself in some material respect. Secondly, the phrase which is the preamble to the specific provisions of subsection (3), ‘there is reason to suspect,’ does not require positive proof or even formulated evidence. The question is usually to be decided at a preliminary stage although, as indicated in the subsection, it may arise for decision during the inquest. Therefore, any information giving ‘reason to suspect’ will suffice.

(ii) R (Aineto) v HM Coroner for Brighton and Hove [2003] EWHC 1896 (Admin) Keywords: Accident/misadventure, health and safety at work, jury The deceased was a young Frenchman who was living in Brighton at the time of his death. On the evening of 28 July 2001, he went out with a group of friends. In the early hours of the following morning he was crushed beneath the rear wheels of a bin lorry. The crew of

200 Richard Mumford

this vehicle were two employees of SITA, a company contracted at the time to undertake refuse collection work for the local authority. The coroner declined to summon a jury and returned a verdict of accidental death. The deceased’s sister challenged the coroner’s verdict, contending that he had failed to summon a jury as required by section 8 of the 1988 Act. The Divisional Court (Dyson LJ and Gibbs J) quashed the original verdict and directed that there be a fresh inquest. The Court concluded, amongst other things, that the coroner had reason to suspect that the conditions of section 8(3)(c) were satisfied and had therefore erred in failing to summon a jury. 7. The critical question in this case is whether the Coroner had reason to suspect that the deceased was killed as a result of the activities of another person who was at the time of the accident engaged in work connected with the loading or unloading of any article or substance on to or off the vehicle. If the answer is ‘Yes’, then the defendant was obliged by section 8(3) to summon a jury. … 10. I have no doubt that on the facts of this case, at the time of the fatal incident, Mr Warren was engaged in work connected with the loading of the contents of the refuse bin onto the truck… 11. I would therefore hold that in this case the defendant had reason to suspect that the conditions of section 8(3)(c) were satisfied and that she erred in failing to summon a jury… … REMEDY Does it follow that the defendant’s verdict should be quashed and a fresh inquest ordered? Mr Soorjoo submits that this is what we should order. Miss Hewitt does not urge to the contrary. She submits that it is a matter for the discretion of the court. But she does contend that on the material presently available, there is no realistic prospect that any jury would bring in a verdict other than one of ‘accidental death’. I recognise the force of counsel’s submissions, but I am in [no] doubt that there should be a fresh inquest. I accept that the court could exercise its discretion in a case such as this not to order a fresh inquest, even though the Coroner should have sat with a jury. But the failure to summon a jury was a serious procedural irregularity. In my judgment, there need to be cogent reasons to deny a fresh inquest with a jury when the court decides that the first inquest should have been conducted with a jury. The question therefore is whether there are sufficiently cogent reasons to justify that course in the present case.

(iii) Decision dated 21 May 2010 of Dame Heather Hallett DBE in the matter of Coroner’s Inquests into the London Bombings of 7 July 2005 Keywords: Jury, pre-inquest review hearing A pre-inquest hearing took place between 26 and 30 April 2010 regarding the inquests into the deaths of members of the public killed in the terrorist attacks in London of 7 July 2005.9 The coroner (Hallett LJ) was required to consider various matters regarding the 52 inquests, including the scope of the inquests, the status of individuals and organisations as interested

9 www.webarchive.nationalarchives.gov.uk/20120216072438/http://7julyinquests.independent.gov.uk/ directions_decs/decision-april-2010.htm.

The Jury 201

persons and the summoning of a jury. The coroner determined that the summoning of a jury was neither mandatory under section 8(3)(d) of the 1988 Act, nor was it desirable pursuant to section 8(4). In so doing, the coroner commented on the threshold for triggering the mandatory provision of section 8(3)(d). 157. I accept the standard for triggering the mandatory provisions of section 8(3)(d) does not appear to be a high one: ‘a reason to suspect’ a possible recurrence is all it takes. However, if one sets the bar too low, any violent or unnatural death may recur and would lead to the summoning of a jury. This cannot have been Parliament’s intention. More is required than simply a possible recurrence. In Takoushis, Sir Anthony Clarke MR emphasised that section 8(3)(d) is essentially forward looking, in that it is concerned with ‘the prevention or reduction of the risk of future injuries in similar circumstances’. 158. If the circumstances still exist or could recur and they threaten the present and future health and safety of the public, I accept, as I must, that the provisions of section 8(3)(d) are triggered and a jury is mandated. However, if that situation has been remedied, a jury is not essential. To my mind there is presently no reason to suspect, given the various improvements made, to the way intelligence is gathered, analysed and shared that any alleged systemic or individual intelligence failings do persist. 159. I reach the same conclusion in relation to the emergency response. There are, of course, clear allegations that there may have been systemic failings, for example in the communications systems and the provision of first aid. However, the London Assembly for one has done an extremely thorough job of evaluating the emergency responses and of making recommendations for significant improvements. Others have done and are doing the same. Organisations continue to monitor the implementation of their recommendation. Mr O’Connor was unable to identify for me any significant failing which has not been addressed. Accordingly, on the material presently before me, I find no reason to suspect that the deaths occurred in circumstances the continuance or possible recurrence of which is prejudicial to the health or safety of the public or any section of the public.

(iv) R (Davey) v HM Coroner for Leicester City and South Leicestershire v University Hospitals of Leicester NHS Trust [2014] EWHC 3982 (Admin) Keywords: Judicial review, jury, pre-inquest review hearing An 84-year-old lady died following a transcatheter aortic valve implantation (TAVI) procedure. At a pre-inquest review (PIR) on 3 October 2012, the coroner decided to hold an inquest without a jury. The claimant, the deceased’s son, challenged this decision, arguing that the coroner had erred in law in finding that there was no evidence of systemic failure—the claimant pointed to evidence allegedly giving rise to concern about the TAVI procedure. The Administrative Court (Hickinbottom J) rejected the challenge, holding that the coroner had not erred in law in concluding that there was no evidence before her upon which to found a legitimate suspicion that there was a systemic failure inherent in the TAVI procedure. 6. The requirements of section 8(3) were considered by Hallett LJ in her decision dated 21 May 2010 following the pre-inquest hearing on 26–30 April 2010 prior to the inquests into the London bombings of 7 July 2005, at [148]–[160]. As Hallett LJ was sitting as a Deputy Assistant Coroner, what she then said was not formally binding on the Coroner, nor is it formally binding upon me; but the propositions she set out in that decision were formulated after a full review of the

202 Richard Mumford a uthorities and full argument, and are accepted both generally and by both Counsel before me as a correct and indeed authoritative summary of the law. I gratefully adopt them. 7. The legal principles relevant to this claim are as follows. (i)

he first step is for the coroner to determine the scope of the inquest. Only then can there T be an assessment of the applicability of section 8(3)(d). (ii) Although section 8(3)(d) is on its face in mandatory terms (‘… he shall proceed to summon a jury …’), a coroner has a judgment to make (‘If it appears to the coroner … that there is reason to suspect …’) in respect of which he or she has a margin of discretion. (iii) ‘Reason to suspect’ is a low threshold for the triggering of the obligation to empanel a jury, ‘suspicion’ for these purposes being a state of conjecture or surmise arising at the start of an investigation in which obtaining a prima facie proof is the end (Hussein v Chong Fook Kam [1970] AC 942 at page 948). (iv) The relevant section of the public, whose health and safety might be prejudiced, need not be substantial. (v) For the subsection to apply, the prospect of recurrence is low, being just the possibility of recurrence and not a higher chance. (vi) It is not necessary to establish a causative link between the relevant ‘circumstances’ and the deceased’s death. It is only necessary to show that the death occurred in circumstances the continuance or possible recurrence of which is prejudicial to the health of any section of the public. (vii) Every case must be decided on its own facts. However, if the circumstances that are prejudicial to the health and safety of the public suggest a system failure, subsection (d) is likely to be triggered; but, if the circumstances suggest an individual failure, it is unlikely to be triggered. (viii) Whether a jury should be empanelled under this provision is a matter for the coroner, subject only to the usual public law grounds of challenge in this court. 8. Section 8 of the 1988 Act was repealed by the Coroners and Justice Act 2009. By section 7 of the 2009 Act, an inquest must be held without a jury, unless the death was in identified circumstances not relevant in this case, or, by subsection (3): ‘An inquest into a death may be held with a jury if the senior coroner thinks that there is sufficient reason for doing so.’ There is no saving provision for section 8 of the 1988 Act; and so, if a coroner has now to consider whether an inquest should be with or without a jury, the provisions of section 7 of the 2009 Act apply.

(v) Shafi v HM Senior Coroner for East London [2015] EWHC 2106 (Admin) Keywords: Jurisdiction, jury, pre-inquest review hearing The applicant’s son died in custody at a police station in Dubai. At the end of the inquest (which had not been preceded by a PIR), the coroner recorded an open conclusion with the medical cause of death described as ‘unascertained’. The applicant sought a fresh inquest on grounds of insufficiency of inquiry as well as on the basis that a jury should have been summoned and that there had been irregularity in admitting some written evidence from Dubai. In granting the application, the Divisional Court (Bean LJ and the Chief Coroner) found that section 7(2)(a) of the 2009 Act did not require a coroner to summon a jury in every case of a death in custody abroad. The Court commented on the legislative policy in

The Jury 203

relation to deaths in custody, state detention or at the hands of civilian or military police as follows: 60. In our view the legislative policy underlying section 7(2)(a)–(b) of the 2009 Act is clear. Where a death occurs in custody or because of the act or omission of a police officer, the actions of agents of the State are under scrutiny; and the verdict at the inquest must be returned by a jury, as a body of people who are and are perceived to be wholly independent of the State. Similar policy reasons underlie section 69(1)(b) of the Senior Courts Act 1981, which preserves (subject to exceptions) the right to jury trial on the application of any party to a civil claim for malicious prosecution or false imprisonment. In neither case is Parliament saying that coroners or judges are unfit to make independent decisions: after all, they now sit alone in most of the cases they try. The policy is, we think, based on perception. But we do not consider that it applies with the same force where it is the agents of a foreign State whose acts or omissions are under scrutiny [italics in original].

(vi) R (Fullick) v HM Senior Coroner for Inner North London and others [2015] EWHC 3522 (Admin) Keywords: Judicial review, jury, pre-inquest review hearing A 47 year old woman was taken ill at Hornsey police station in London, which she had voluntarily attended as a witness; she did not recover and died in hospital eight days later. The senior coroner rejected the arguments of the claimant (the deceased’s daughter) that the inquest should be held before a jury either pursuant to the mandatory provisions of section 7(2)(b) concerning deaths arising from an act or omission of a police officer in the purported execution of his or her duty or, alternatively, pursuant to the discretionary provision at section 7(3). The Divisional Court (comprising McCombe LJ and HHJ Peter Thornton QC, the Chief Coroner) allowed the claim for judicial review and quashed the decision not to hold the inquest with a jury. The Court held that the mandatory provisions of section 7(2)(a) were satisfied and indicated that, even if they had not been, the claim would have succeeded under 7(3) in any event. 34. In the first place it is well known that the ‘reason to suspect’ test has a low threshold and is objective in its nature. Coroners are familiar with the phrase ‘reason to suspect’. It is to be found not only in section 7 of the Coroners and Justice Act 2009, but also in section 1 of the Act. Under section 1 the ‘reason to suspect’ test is the well-understood starting point for the coroner’s duty to investigate a death. A coroner who is made aware that the body of a deceased person is within that coroner’s area must as soon as practicable conduct an investigation into the death when the coroner has reason to suspect that the death is violent or unnatural, or the cause of death is unknown or the deceased died while in custody or otherwise in state detention. 35. The phrase ‘reason to suspect’ is not defined in the 2009 Act, but it is well known to the common law, particularly in the context of arrest. In Dumbell v Roberts [1944] 1 All ER 326, 329 the requirement that a constable should before arrest satisfy himself that there do in fact exist reasonable grounds for suspicion of guilt was described as a ‘very limited’ requirement. 36. ‘Reasonable suspicion’ has never been equated with prima facie proof. The latter consists of admissible evidence; the former can take into account matters that could not be put in evidence at all: Hussien v Chong Fook Kam [1970] AC 942, 949; see also Al Fayed v Commissioner of Metropolitan Police [2004] EWCA Civ 1679, [50]. ‘Reason to suspect’ does not require positive proof or even formulated evidence; any information giving ‘reason to suspect’ will suffice: R v Inner London Coroner, ex parte Linnane [1989] 1 WLR 395, 398.

204 Richard Mumford 37. For our purposes we adopt the approach of Hickinbottom J in the coroner case of R (Davey) v HM Coroner for Leicester City and South Leicestershire [2014] EWHC 3982 (Admin) at [7]: “‘Reason to suspect’ is a low threshold for the triggering of the obligation to empanel a jury, ‘suspicion’ for these purposes being a state of conjecture or surmise arising at the start of an investigation in which obtaining a prima facie proof is the end (Hussien v Chong Fook Kam) [above].” 38. Applying the test objectively, we are satisfied that there was sufficient material before the c oroner such that the mandatory provisions of section 7(2)(b) applied. There is reason to suspect that the death resulted from the omission of a police officer in the purported execution of the officer’s duty. Ms Jones may not have been a detainee in custody at the police station, but she was a vulnerable visitor, as the police knew from the afternoon’s earlier events. At the very least she needed looking after. 39. In broad terms the question to be answered therefore is as follows: Could or should the police have done more? We do not presume to answer that question; we do not express a view one way or another about it. That will be a matter for the jury to consider in all the particular circumstances of this case, having heard the evidence and been properly directed by the coroner. 40. For our part we are satisfied that the coroner had, on the information before her, reason to suspect the matters set out in section 7(2)(b). Hence, the mandatory requirement for a jury inquest was satisfied. The coroner erred in law in concluding the contrary.

B. When may a Jury be Called—The Discretion Under CJA 2009, Section 7(3) Again, appropriate caution should be exercised in the application of reasoning developed under the old statutory regime to the provisions under the new Act. However, the cases below illustrate some of the important factors weighing either in favour of or against the summoning of a jury under the discretionary powers.

(i) R (Collins) v HM Coroner for Inner South London [2004] EWHC 2421 (Admin) Keywords: Judicial review, jury The claimant’s son died in a fire at a house in New Cross, London on 18 January 1981. An initial inquest in 1981 resulted in an open verdict. In 2002 the Divisional Court quashed the verdict of the initial inquest and ordered a fresh inquest, which took place in early 2004. The coroner appointed a deputy, who was a retired Crown Court judge, to conduct the inquest. The deputy coroner determined to hold the inquest without a jury. The appointment of a deputy and the decision to sit without a jury was challenged by the claimant, who also raised concerns that he had been unable to obtain financial assistance to enable him to be legally represented at the fresh inquest. The claimant’s challenges were dismissed by Sullivan J, who considered the deputy coroner’s reasons for not exercising his discretion to sit with a jury. 5. Turning to the concern about the deputy coroner sitting without a jury, this is not one of those cases where a jury is required by statute. The coroner has a discretion. The discretion must be

The Jury 205 exercised judicially. Putting the matter very simply, the reason why HHJ Butler decided that it would be more appropriate to proceed without a jury is that at the end of an inquest that is expected to finish around about Easter time, he will have had to consider a mass of documentation. Moreover, the documentation relates to an event that occurred over 20 years ago. Thus, this is a particularly heavy and difficult investigation. It is precisely the sort of investigation that can best be carried out by a professional judge. There is another factor which is of particular importance: at the end of an inquest conducted by a judge alone, a reasoned decision will be given. That, indeed, is the point that was made by HHJ Butler when explaining why he thought it more appropriate that a jury should not be appointed. It does seem to me that, given that these events occurred so long ago, it is particularly important that any conclusion that is reached as a result of this reopened inquest should be a fully reasoned one and that will be the outcome of the coroner sitting without a jury. I can, again, see no positive reason to set against those reasons that I have just mentioned which would suggest that a jury would be appropriate or that the deputy coroner’s discretion has been exercised wrongly in any way.

(ii) R (Paul) v Deputy Coroner for the Queen’s Household and the Assistant Deputy Coroner for Surrey [2008] QB 172 Keywords: Judicial review, jury, pre-inquest review hearing This case concerned the inquests into the death of the Princess of Wales and Dodi Al Fayed, who were killed in a car crash in Paris on 31 August 1997. Dame Elizabeth Butler-Sloss (the former President of the Family Division) was appointed as deputy coroner of the Queen’s household and as assistant deputy coroner for Surrey to conduct the two inquests. At a preinquest hearing questions were raised including whether she should hold the inquests sitting alone or with a jury. The coroner ruled that she would sit without a jury; this, amongst other rulings, was challenged by way of judicial review. The Divisional Court quashed the decision to hold the inquests without a jury, founding its judgment on the provisions of section 8(3)(d) of the 1988 Act, but went on to comment on the proper approach to the exercise of the discretion to summon a jury under section 8(4). 41. In the light of our conclusion on section 8(3)(d), it is not strictly necessary for us to deal with the submissions seeking to challenge the coroner’s exercise of discretion under section 8(4) not to summon a jury. However, we wish to make three observations on this issue. 42. First, Baroness Butler-Sloss made her decision under section 8(4) before she had considered the scope of the inquest. In our view, the logical approach is for a coroner first to determine the scope of the inquest and only then to make a decision on the relevance and applicability of sections 8(3) and (4). Here it can properly be said, as was urged by Mr Burnett, that although Baroness Butler-Sloss had not yet made decisions on the scope of the inquests, she knew a great deal about the likely scope from reading the Stevens report. We accept that that is so, but we are of the view that, as a matter of principle, the right course is to determine the scope of the inquest before considering whether to summon a jury. 43. Our second observation is that, in reaching her discretionary decision under section 8(4), it appears to us that Baroness Butler-Sloss did not take some relevant matters into account. She mentioned a number of factors relevant to the issue but the dispositive reason for her decision to sit without a jury was that she, sitting alone, would be able to provide a reasoned explanation for her conclusions whereas a jury would not; it would be able to provide only brief answers to a limited number of questions. It was in the public interest that a full explanation of the conclusions should

206 Richard Mumford be published. Although the validity of this reason was challenged, we do not accept the grounds of challenge; there is no need for us to explain why. In our view, the factors which Baroness ButlerSloss considered were properly taken into account. 44. However, it appears to us, from the arguments presented, that there were two additional factors relevant to the exercise of the coroner’s discretion which ought to have been taken into consideration. First, it was the strongly expressed view of the family of Dodi Al Fayed that there should be a jury. That, of course, cannot be determinative but it is a relevant factor. This was recognised in R v HM Coroner for the Eastern District of the Metropolitan County of West Yorkshire, Ex p National Union of Mineworkers, Yorkshire Area (1985) 150 JP 58, and, in any event we believe that it is now regarded as good practice for coroners to consult the family of the deceased before making a discretionary decision under section 8(4). In this case, the sons and the sister of the Princess of Wales had indicated that they have no views on whether a jury should be summoned while Dodi Al Fayed’s family felt that a jury would be essential for a proper investigation into the deaths. We think the views of the Al Fayed family should have been taken into account. 45. Further, it appears to us that, when considering how to exercise the discretion under section 8(4) in a case to which the mandatory provisions of section 8(3) do not apply, it is appropriate to consider whether the facts of the instant case bear any resemblance to the types of s ituation covered by the mandatory provisions. By examining the policy considerations behind the mandatory provisions, it might be possible to find guidance as to the manner in which the discretion should be exercised. Baroness Butler-Sloss did not undertake this exercise. Had she done so, we think that her decision might well have been different and she might well have concluded that she ought not to make any decision about whether or not to summon a jury until after she had determined the scope of the inquests. 46. Sections 8(3)(a) and (b) make it mandatory to summon a jury in cases where the death occurred in prison or while the deceased was in police custody or resulted from an injury caused by a police officer in the purported execution of his duty. The policy consideration behind these provisions is clear; in order that there should be public confidence in the outcome of the inquest, a jury should be summoned in cases where the state, by its agents, may have had some responsibility for the death. As we have said, in the present case, Mr Al Fayed has alleged that Duke of Edinburgh and the Security Services conspired to kill the Princess and Dodi Al Fayed. The allegation is that agents of the state have been involved in the deaths. If, when Baroness Butler-Sloss determines the scope of the inquests, she decides that Mr Al Fayed’s allegation must be inquired into, the possible role of state agents would be an important consideration material to her discretionary decision whether to summon a jury. Indeed, we think that that consideration might well be determinative in favour of summoning a jury. However, our decision to quash Baroness Butler-Sloss’s decision not to summon a jury is based on our conclusion that the mandatory provision in section 8(3)(d) applies in the circumstances of this case.

(iii) R (Fullick) v HM Senior Coroner for Inner North London and others [2015] EWHC 3522 (Admin) Keywords: Judicial review, jury, pre-inquest review hearing See above for facts. The Court held that the mandatory provisions of section 7(2)(a) were satisfied and indicated that, even if they had not been, the claim would have succeeded under 7(3) in any event.

The Jury 207 41. Had we decided that the mandatory provisions did not apply, we would have been minded to conclude that the coroner acted unreasonably in the exercise of her discretion under section 7(3) to hold the inquest without a jury. 42. The correct approach to the exercise of discretion under section 7(3), following the decisions of the Divisional Court in R (Paul and others) v Deputy Coroner of the Queen’s Household [2007] EWHC 408 (Admin), [2008] QB 172, and R (Shafi) v HM Senior Coroner for East London [2015] EWHC 2106 (Admin) at [69], is for the coroner to consider all relevant matters. These include, amongst other matters: (i)

t he observation in Paul at [44] that a factor relevant (but not determinative) to the exercise of the coroner’s discretion which ought to be taken into consideration is the wishes of the family, (ii) submissions made on behalf of any other Interested Person, (iii) the further observation in the case of Paul at [45] that it is appropriate to ‘consider whether the facts of the instant case bear any resemblance to the types of situation covered by the mandatory provisions’, (iv) the circumstances of the death (in this case in a police station), and (v) any uncertainties in the medical evidence. 43. It should also be noted that the Divisional Court in Paul at [42] advised that no decision on whether to summon a jury should be made until after the coroner had determined the scope of the inquest. 44. The coroner does not appear to have considered the matters listed above, in particular, for the purposes of this case, (1), (3) and (4). Had she done so, we feel sure that she could only have decided to exercise her discretion to conduct the inquest with a jury. Instead she ruled in her letter of 19 October: ‘I am not persuaded that it would be in the interests of justice for me to exercise my discretion to sit with a jury.’ Not only did the coroner fail to consider all relevant matters; she also applied the wrong test. The test is a ‘sufficient reason’ test, not an ‘interests of justice’ test. 45. In view of our decision on the mandatory provisions it is not strictly necessary to deal with Ms Kaufmann’s submissions on the discretionary provisions. But we hope that our observations will assist coroners in the future. Other relevant cases:

R (LF) v HM Senior Coroner for Inner South London and another [2015] EWHC 2990 (Admin)—a patient in intensive care who, independently, lacked mental capacity but was not subject to DoLS, was not ‘in state detention’ within the meaning of section 7(2) (a) CJA 2009.

208

12 Evidence PETER SKELTON QC

I. Overview This chapter addresses the general procedures governing the production and disclosure of evidence during coronial investigations and inquests. The cases are divided into four topics: (a) (b) (c) (d)

Disclosure of evidence to the coroner Disclosure of evidence by the coroner to the interested persons Disclosure in Article 2 inquests Expert evidence—generally and in Article 2 inquests

Evidence is construed broadly to encompass any form of information pertaining to the issues under investigation, including documents, objects and audio/visual recordings. Lay witness evidence is covered separately in Chapter 9. Anonymity, protective measures and public interest immunity are considered in Chapter 13. The use of evidence in inquests has improved dramatically over the last 15 years, in terms of overall consistency, efficiency and fairness. Haphazard hearings, in which new evidence is introduced without warning or relevant evidence is rejected without reasons, are for the most part a thing of the past. There are several interrelated reasons for this. First, the coroners’ courts have tried to keep up with the general advances in the civil courts, particularly the improvements wrought by the 1998 Civil Procedure Rules. Second, the advent of the Human Rights Act 1998 (HRA 1998) has increased public awareness and assertiveness in respect of legal rights, not just those protected by the European Convention on Human Rights (ECHR). Third, judicial reviews of coroners’ decisions have proliferated, with the obvious consequence that the civil courts have provided greater guidance on matters of coronial procedure and coroners themselves have taken greater care to ensure that they act fairly. Fourth, the new 2009/2013 statutory regime has come into force.1 The direct result of this has been the introduction of clearer procedures for the production of evidence. The indirect result has been the general improvements initiated since the arrival of the Chief Coroner, His Honour Judge Peter Thornton QC, who has emphasised the

1 For a short but informative history of the 2009 Act and coroners’ powers to order the production of ocuments, see paras 22–32 of the judgment in R (Revenue and Customs Commissioners) v Liverpool Coroner d [2014] 3 WLR 1660, a decision which is discussed in more detail below.

210 Peter Skelton QC

importance of consistency and fairness in his training and guidance to coroners and in his contribution to the judgments of the Administrative Court in coronial cases. Notwithstanding the changes identified above, it remains the case that so long as coroners act fairly and facilitate the effective participation of interested persons, they retain a broad discretion to adduce whatever evidence they determine is relevant to their investigations.2 It is beyond the scope of this chapter to advise coroners how that discretion should be exercised; or to advise legal practitioners how best to represent their clients. But as a touchstone during all inquests, and as a way of minimising the possibility of a fresh inquest being ordered,3 it will always be prudent to ask at the outset and throughout: (1) What are the key issues arising in respect of the deceased’s death? (2) What factual evidence is relevant to those issues, directly and indirectly? (3) What expert evidence is required in order to determine the cause of death and (insofar as relevant) to understand and test the conduct of any persons whose conduct may have contributed to the death?

II. Legislation and Other Sources Coroners Act 1988 13. Order to hold [investigation]4 (1) This section applies where, on an application by or under the authority of the Attorney-General, the High Court is satisfied as respects a coroner (‘the coroner concerned’) either— (a) that he refuses or neglects to hold an inquest [or an investigation] which ought to be held; or (b) where an inquest [or an investigation] has been held by him, that (whether by reason of fraud, rejection of evidence, irregularity of proceedings, insufficiency of inquiry, the discovery of new facts or evidence or otherwise) it is necessary or desirable in the interests of justice that [an investigation (or as the case may by, another investigation)] should be held. (2) The High Court may— (a) order an [investigation under Part 1 of the Coroners and Justice Act 2009] to be held into the death either— i. by the coroner concerned; or ii. by [a senior coroner, area coroner or assistant coroner in the same coroner area]; (b) order the coroner concerned to pay such costs of and incidental to the application as to the court may appear just; and

2 See

Wilson v HM Senior Coroner for Birmingham and Solihull [2015] EWHC 2561 (Admin), below. See the Coroners Act 1988, s 13 set out below. Section 13 still remains in force notwithstanding its repeal by the Coroners and Justice Act 2009 (CJA 2009), Sch 23, Part 1, s 178 which has not yet been brought into force. The word ‘investigation’ is substituted for ‘inquest’ throughout this section pursuant to Article 2(4) of the Coroners and Justice Act 2009 (Consequential Provisions) Order 2013/1874, which came into force on 25 July 2013. 3

4

Evidence 211 (c) where an inquest has been held, quash [any inquisition on, or determination or finding made at] that inquest. (3) … [(4) For the purposes of this section, “coroner” means a coroner appointed under section 1 of this Act, or a senior coroner, area coroner or assistant coroner appointed under the Coroners and Justice Act 2009.]

Coroners and Justice Act 2009, Schedule 5 32 Power to require evidence to be given or produced5 1. (1) A senior coroner may by notice require a person to attend at a time and place stated in the notice and— (a) to give evidence at an inquest, (b) to produce any documents in the custody or under the control of the person which relate to a matter that is relevant to an inquest, or (c) to produce for inspection, examination or testing any other thing in the custody or under the control of the person which relates to a matter that is relevant to an inquest. (2) A senior coroner who is conducting an investigation under this Part may by notice require a person, within such period as the senior coroner thinks reasonable— (a) to provide evidence to the senior coroner, about any matters specified in the notice, in the form of a written statement, (b) to produce any documents in the custody or under the control of the person which relate to a matter that is relevant to the investigation, or (c) to produce for inspection, examination or testing any other thing in the custody or under the control of the person which relates to a matter that is relevant to the investigation. (3) A notice under sub-paragraph (1) or (2) must— (a) explain the possible consequences, under paragraphs 6 and 7 of Schedule 6, of not complying with the notice; (b) indicate what the recipient of the notice should do if he or she wishes to make a claim under sub-paragraph (4). (4) A claim by a person that— (a) he or she is unable to comply with a notice under this paragraph, or (b) it is not reasonable in all the circumstances to require him or her to comply with such a notice, is to be determined by the senior coroner, who may revoke or vary the notice on that ground. (5) In deciding whether to revoke or vary a notice on the ground mentioned in sub-paragraph (4)(b), the senior coroner must consider the public interest in the information in question being obtained for the purposes of the inquest or investigation, having regard to the likely importance of the information.

5

Brought into force on 25 July 2013, per (SI 2013/1869 art. 2(k)).

212 Peter Skelton QC (6) For the purposes of this paragraph a document or thing is under a person’s control if it is in the person’s possession or if he or she has a right to possession of it. (7) The validity of a notice under sub-paragraph (1) or (2) is not limited to the coroner area for which the senior coroner issuing the notice is appointed. (8) A reference in this paragraph to a senior coroner is to be read as including the Coroner for Treasure. As it applies in relation to the Coroner for Treasure, this paragraph has effect with the omission of sub-paragraph (7). 2. (1) A person may not be required to give, produce or provide any evidence or document under paragraph 1 if— (a) he or she could not be required to do so in civil proceedings in a court in England and Wales, or (b) the requirement would be incompatible with a [EU]6 obligation. (2) The rules of law under which evidence or documents are permitted or required to be withheld on grounds of public interest immunity apply in relation to an investigation or inquest under this Part as they apply in relation to civil proceedings in a court in England and Wales. Power of entry, search and seizure7 3–5 …

Schedule 6 33 Offences8 6. A senior coroner, or (as the case may be) the Coroner for Treasure, may impose a fine not exceeding £1000 on a person who fails without reasonable excuse to do anything required by a notice under paragraph 1 of Schedule 5. 7. (1) It is an offence for a person to do anything that is intended to have the effect of— (a) distorting or otherwise altering any evidence, document or other thing that is given, produced or provided for the purposes of an investigation under this Part of this Act, or (b) preventing any evidence, document or other thing from being given, produced or provided for the purposes of such an investigation, or to do anything that the person knows or believes is likely to have that effect. (2) It is an offence for a person— (a) intentionally to suppress or conceal a document that is, and that the person knows or believes to be, a relevant document, or (b) intentionally to alter or destroy such a document.

6 This word was substituted on 22 April 2011 by Pt 2 art. 6(1)(e) of the Treaty of Lisbon (Changes in erminology) Order 2011/1043, but did not come into effect until the commencement of the CJA 2009, Sch 5 on T 23 July 2013. 7 Not yet in force (CJA 2009, Pt 9, s 182(5)). 8 Brought into force on 25 July 2013 (SI 2013/1869 art. 2(l)).

Evidence 213 (3) For the purposes of sub-paragraph (2) a document is a “relevant document” if it is likely that a person conducting an investigation under this Part of this Act would (if aware of its existence) wish to be provided with it. (4) A person does not commit an offence under sub-paragraph (1) or (2) by doing anything that is authorised or required— (a) by a senior coroner or the Coroner for Treasure, or (b) by virtue of paragraph 2 of Schedule 5 or any privilege that applies. (5) Proceedings for an offence under sub-paragraph (1) or (2) may be instituted only by or with the consent of the Director of Public Prosecutions. (6) A person guilty of an offence under sub-paragraph (1) or (2) is liable on summary conviction to a fine not exceeding level 3 on the standard scale, or to imprisonment for a term not exceeding 51 weeks, or to both. 8 (1) It is an offence for a person, in giving unsworn evidence at an inquest by virtue of section 45(2)(a), to give false evidence in such circumstances that, had the evidence been given on oath, he or she would have been guilty of perjury. (2) A person guilty of an offence under this paragraph is liable on summary conviction to a fine not exceeding £1000, or to imprisonment for a term not exceeding 51 weeks, or to both. (3) In relation to a person under the age of 14, sub-paragraph (2) has effect as if for the words following ‘summary conviction’ there were substituted ‘to a fine not exceeding £250’. (4) For the purposes of sub-paragraph (3), a person’s age is to be taken to be that which it appears to the court to be after considering any available evidence.

The Coroners (Inquests) Rules 20139 PART 3 12. Disclosure This Part applies to the disclosure of documents by the coroner during or after the course of an investigation, pre-inquest review or inquest. 13. Disclosure of documents at the request of an interested person (1) Subject to rule 15, where an interested person asks for disclosure of a document held by the coroner, the coroner must provide that document or a copy of that document, or make the document available for inspection by that person as soon as is reasonably practicable. (2) Documents to which this rule applies include— (a) any post-mortem examination report; (b) any other report that has been provided to the coroner during the course of the investigation; (c) where available, the recording of any inquest hearing held in public, but not in relation to any part of the hearing from which the public was excluded under rule 11(4) or (5); (d) any other document which the coroner considers relevant to the inquest. 9

SI 2013/1616. Brought into force on 23 July 2013.

214 Peter Skelton QC 14. Managing disclosure A coroner may— (a) disclose an electronic copy of a document instead of, or in addition to, a paper copy; (b) disclose a redacted version of all or part of a document; or (c) make a document available for inspection at a particular time and place. 15. Restrictions on disclosure A coroner may refuse to provide a document or a copy of a document requested under rule 13 where— (a) (b) (c) (d) (e)

there is a statutory or legal prohibition on disclosure; the consent of any author or copyright owner cannot reasonably be obtained; the request is unreasonable; the document relates to contemplated or commenced criminal proceedings; or the coroner considers the document irrelevant to the investigation.

16. Costs of disclosure A coroner may not charge a fee for any document or copy of any document, disclosed to an interested person before or during an inquest.10 PART 4 Management of the inquest hearing 23. Written evidence (1) Written evidence as to who the deceased was and how, when and where the deceased came by his or her death is not admissible unless the coroner is satisfied that— (a) it is not possible for the maker of the written evidence to give evidence at the inquest hearing at all, or within a reasonable time; (b) there is a good and sufficient reason why the maker of the written evidence should not attend the inquest hearing; (c) there is a good and sufficient reason to believe that the maker of the written evidence will not attend the inquest hearing; or (d) the written evidence (including evidence in admission form) is unlikely to be disputed. (2) Before admitting such written evidence the coroner must announce at the inquest hearing— (a) (b) (c) (d)

what the nature of the written evidence to be admitted is; the full name of the maker of the written evidence to be admitted in evidence; that any interested person may object to the admission of any such written evidence; and that any interested person is entitled to see a copy of any written evidence if he or she so wishes.

(3) A coroner must admit as evidence at an inquest hearing any document made by a deceased person if the coroner is of the opinion that the contents of the document are relevant to the purposes of the inquest.

10 Fees may be charged for disclosure after an inquest has been completed in accordance with the Coroners Allowances, Fees and Expenses Regulations 2013 (SI 2013/1615).

Evidence 215 (4) A coroner may direct that all or parts only of any written evidence submitted under this rule may be read aloud at the inquest hearing.

Coroners (Investigations) Regulations 201311 PART 6 23. Disclosure and provision of information Part 3 of the Coroners (Inquests) Rules 2013 applies to the disclosure of documents to an interested person made by the coroner at any time during the course of an investigation. 24. Providing information to a Local Safeguarding Children Board (1) Where a coroner decides to conduct an investigation into a death under section 1 or directs that a post-mortem examination should be made under section 14, and the coroner believes the deceased was under the age of 18, the coroner must notify the appropriate Local Safeguarding Children Board within 3 days of making the decision or direction. (2) A coroner must provide all information to the appropriate Local Safeguarding Children Board. (3) In this regulation— ‘the appropriate Local Safeguarding Children Board’ means the Board established under section 13(1) or 31(1) of the Children Act 2004 within whose area the deceased died or within whose area the body was found; and ‘information’ means any information that is— (a) held by the coroner for the purposes of an investigation under Part 1 of the 2009 Act; and (b) relates to the death of a person who was or may have been under the age of 18 at the time of death. 25. Power of the Chief Coroner to require information (1) The Chief Coroner may at any time require information from a coroner in relation to a particular investigation or investigations that have or are being conducted by that coroner. (2) A coroner must provide the Chief Coroner with the information requested under paragraph (1). … 27. Retention and release of documents (1) Any document in the possession of a coroner in connection with an investigation or postmortem examination must, unless a court or the Chief Coroner otherwise directs, be retained by or on behalf of the coroner for at least 15 years from the date that the investigation is completed. (2) The coroner may provide any document or copy of any document to any person who in the opinion of the coroner is a proper person to have possession of it. (3) A coroner may charge for the provision of any document or copy of any document in accordance with any regulations made under Schedule 7.

11

SI 2013/1629. Brought into force on 23 July 2013.

216 Peter Skelton QC

Coroners Allowances, Fees and Expenses Regulations 201312 PART 3 Allowances, fees and expenses 9. Expert witness fee for preparatory work A coroner may pay an expert witness who has carried out preparatory work directly related to the giving of evidence at an inquest a fee that the coroner considers reasonable having regard to the nature and complexity of the preparatory work carried out. 10. Expert witness fee for attending an inquest (1) A coroner may pay an expert witness a fee that the coroner considers reasonable for attending and giving expert evidence at an inquest. (2) When considering a fee which is reasonable under paragraph (1) the coroner shall have regard to the nature and complexity of the evidence provided by the expert witness. … 12. Fee for disclosure after an inquest (1) This regulation applies where a coroner discloses a document to an interested person after an inquest. (2) No fee shall be payable where a document is disclosed by email by a coroner to an interested person. (3) Where a document is disclosed by a coroner as a paper copy, a fee of £5 for a document of 10 pages or less shall be payable, with an additional 50p payable for each subsequent page. (4) A fee of £5 per document shall be payable where a document is disclosed in any other medium, other than by email or as a paper copy. (5) The fee for a transcription of an inquest hearing shall be as follows— (a) for a copy consisting of 360 words or less, £6.20; (b) for a copy consisting of between 361 words and up to an including 1439 words, £13.10; and (c) for a copy consisting of 1440 words or more, £13.10 for the first 1440 words and 70p for each additional 72 words or part thereof.

Guidance Chief Coroner Law Sheet No 4, ‘Hearsay Evidence’, 15 September 2014.13 See also Chief Coroner Guidance No 22, ‘Pre-Inquest Review Hearings’, 18 January 2016.

12 13

SI 2013/1615. Brought into force on 23 July 2013. This is considered in Chapter 9 on witnesses.

Evidence 217

III. Cases A. Disclosure of Evidence to the Coroner Since July 2013, the procedures for the disclosure of documents to the coroner have been governed by the Schedule 5, section 32 of the Coroners and Justice Act 2009 (CJA 2009), together with relevant sections of the Coroners (Inquests) Rules 2013 and Coroners (Investigations) Regulations 2013, quoted above. In the recent HMRC case,14 the High Court has considered the new statutory regime and has clarified the ambit of the coroner’s power to issue Schedule 5 production notices. Prior to the introduction of the statutory regime in 2009 and 2013, coroners had no statutory powers to order the production of documents, but could apply to High Court for witness summons incorporating the production of specific documents. See Hicks [1987] and Channel 4 [2007], below.

(i) R (Hicks) v HM Coroner for Southwark [1987] 1 WLR 1624 Keywords: Evidence, disclosure, prisons, medical care The deceased had died in custody at HMP Brixton following an epileptic fit. Following the inquest before a coroner and jury, the Divisional Court quashed the verdict and ordered a new inquest on the basis that (1) the coroner should have called the doctors who treated the deceased to give evidence, and (2) a verdict of ‘lack of care’ might have been possible had there been evidence of insufficient treatment. During the course of his judgment, Croome-Johnson LJ, with whom Peter Pain J agreed, said this about the use of documents during inquests [1629A–D]: It must be borne in mind that the primary purpose of an inquest nowadays is to establish the cause of death, not to impute blame whether criminal or civil. A coroner has himself no power to order the production of documents. His final right is to apply to the High Court for a subpoena duces tecum ordering their production, but normally that is not necessary. A request will be enough and the maker or custodian will either produce them or bring them to the hearing. The coroner may then decide to what extent they may be referred to. Questions may be asked about them. If a party who may be held responsible for the death is present or is represented, fairness and rule 37(2) of the Coroners Rules 1984 require that he should see them. The introduction of documentary evidence is controlled by rule 37. It gives power to admit documentary evidence which is unlikely to be disputed, unless a person who may, in the opinion of the coroner, have caused or contributed to the death objects. Other provisions of rule 37 contain safeguards and restrictions on the use of documents. Subject to those rules, the coroner, who controls his own court, must decide the extent to which they are used and what questions may be asked about them. If a document is admitted it must be read aloud at

14

R (Revenue and Customs Commissioners) v Liverpool Coroner [2014] EWHC 1586 (Admin), [2015] QB 481.

218 Peter Skelton QC the inquest unless the coroner otherwise directs: rule 37(6). The use of and reference to documents is therefore narrowly circumscribed.

(ii) Inner West London Assistant Deputy Coroner v Channel 4 Television Corpn [2007] EWHC 2513 (QB), [2008] 1 WLR 945 Keywords: Evidence, disclosure, civil law During the inquest into the deaths of Diana, Princess of Wales, and Mr Dodi Al-Fayed, the coroner applied to the Queen’s Bench Division of the High Court for a witness summons ordering Channel 4 Television Corporation to produce certain documents. Eady J made the order sought, in the form of a Practice Note. 3. Before defining the extent of the dispute, I should refer to the terms of CPR r 34.4. This provides the only means whereby the coroner can obtain documents for the purposes of the inquests. Although the Government is contemplating changes to the coronial jurisdiction, which would include granting the power to obtain documents directly, for the moment a court order is required. CPR r 34.4 embodies the jurisdiction of the High Court to issue a witness summons in aid of an inferior court or of a tribunal. Counsel have all referred to the decision of Gross J in South Tyneside Borough Council v Wickes Building Supplies Ltd [2004] NPC 164, where the applicable principles (in the context of witness summonses relating to civil litigation) are summarised to broadly the following effect: (i) the object is to obtain specified documents, and a summons should not be used to obtain disclosure; nor should it be of a ‘fishing’ or speculative nature; (ii) the production of the documents must be necessary for the fair disposal of the ‘matter’ or to save costs; (iii) the fact that documents are relevant is not to be decisive; (iv) the fact that the specified documents may contain confidential information is not an absolute bar to production (although it is plainly a factor which must be taken into account). 4. Subsequently, other decisions have thrown further light on the matter. For example, in Tajik Aluminium Plant v Hydro Aluminium AS (Practice Note) [2006] 1 WLR 767, para 29 the degree of specificity was addressed by the Court of Appeal. The documents, or class of documents, must be sufficiently identified to leave no real doubt in the mind of the person to whom the summons is directed. Any doubts as to the adequacy of the description must be resolved in that person’s favour.

(iii) R (Revenue and Customs Commissioners) v Liverpool Coroner [2014] EWHC 1586 (Admin), [2015] QB 481 Keywords: Evidence, disclosure The coroner issued notices under Schedule 5 of the 2009 Act requiring the Revenue and Customs Commissioners to provide information relating to the deceased for the purposes of investigating whether he had died as a result of occupational disease. The Commissioners challenged the notices, claiming that the Crown was not bound by the 2009 Act and that the notices did not constitute an ‘order of the court’ for the purposes of the Commissioners for Revenue and Customs Act 2005, and so did not displace their duty of confidentiality. The High Court, Gross LJ and Burnett J, rejected the Commissioners’ application, holding that the Schedule 5 of the 2009 Act binds the Crown by necessary implication (paragraph 48) and that the Commissioners were bound to comply with the coroner’s

Evidence 219

notices. The court also explained the process whereby the recipient of a notice may question or challenge its validity (paragraph 59). 48. … in our judgment, the intention of the legislature in enacting the 2009 Act and, specifically, Schedule 5 thereto, was plain. As appears from the history (set out above), the Act was intended to strengthen the powers of coroners and thereby to discharge the obligation under Article 2 of the Convention to conduct an effective investigation. The paradigm case when an Article 2 obligation is likely to arise concerns emanations of the Crown. Moreover, we can discern no coherent, still less cogent, reasons for Schedule 5 applying to the police, the NHS and private prisons but not binding the MoD, the commissioners or prisons in the public sector; there is nothing whatever to suggest a legislative intention to draw so curious a distinction. It is thus our clear view that the legislative purpose of Schedule 5 would be frustrated if it was not binding on the Crown. Accordingly, notwithstanding our cautious starting point and the absence of any express provision in the 2009 Act binding the Crown, we concluded that Schedule 5 does bind the Crown by necessary implication. … 59. We deal very shortly with this topic because we are concerned that there should not be any uncertainty in this area. If a notice is issued by a coroner, pursuant to Schedule 5 to the 2009 Act, in circumstances where its validity is in dispute, it cannot simply be ignored. The right course, initially, is to question it with the coroner. If, however, the coroner declines to withdraw the notice, then the party to whom it is issued must, depending on the circumstances, either (a) comply, while preserving its position to challenge the validity of the notice subsequently; or (b) seek interim relief from the court. In the present case, Stewart J granted the commissioners interim relief, as recounted above.

B. Disclosure of Evidence by the Coroner to Interested Persons Coroners now routinely hold pre-inquest review hearings in which the production and disclosure of evidence is a major feature. These should be preceded by correspondence from the coroner’s officer providing relevant evidence in the coroner’s possession, asking for further evidence (if necessary) and requesting views on the sufficiency and relevance of the evidence. In most inquests, interested persons (IPs) will expect to receive all relevant evidence from the coroner well in advance of the oral hearings. However, that is not always the case and it is prudent to write to the coroner early on during the investigatory phase making formal requests for disclosure of (1) a list of all documents in the coroner’s possession, and (2) copies of any documents that the coroner intends to refer to during the inquest. Good communication should minimise the risk of any unfair surprises during the hearings. As may be seen from a review of the older cases referred to be below, modern forensic principles of openness and fairness were slow to materialise in the coroners’ courts. And even now the dangers of ‘don’t ask don’t get’ still persist.

(i) R (Peach) v Her Majesty’s Coroner at Hammersmith (Nos. 1 and 2) [1980] 1 QB 211 Keywords: Evidence, witnesses, disclosure This case arose from the notorious death of Blair Peach, who died having been struck on the head during a National Front rally in London on 23 April 1979. The coroner decided that

220 Peter Skelton QC

he had no power in law to provide Mr Peach’s brother with copies of statements given to the police by witnesses whom he intended should give evidence at the inquest. The brother then applied for an order quashing this decision and ordering the coroner to make the police statements available. The Divisional Court rejected the application on the grounds that (1) the statements were police property which the coroner was not entitled to disclose without acting in breach of confidence, (2) the statutory entitlement to examine witnesses, pursuant to rule 16 of the Coroners Rules 1953, did not give rise to an entitlement to receive written statements from the witnesses, and (3) natural justice did not necessitate disclosure in the absence of a criminal charge against the applicant. Lord Widgery CJ, with whom Griffiths J agreed, stated: … the method of preparation of the statements to which I have already referred indicates that those statements started as police property and, in my judgment, continued as police property, and at the present time are police property. I see no way in which anyone other than the police authorities can obtain any sort of legal title to these documents, and therefore prima facie they are not available to be handed over to the applicant. Prima facie the present custodian of the documents, the coroner, could not without breach of confidence or trust show them to the applicant. [218E] Of course any lawyer will say that one cannot examine a witness unless one can cross-examine. That is an understandable point of view as a lawyer’s expression. But to my mind in these rules the expression ‘examine any witness’ merely means ‘question a witness,’ and what is contemplated is that the party in question should be able to put to the witness his allegations, put the points which he wants to raise at the inquest. It is not necessary for that purpose to have all the statements, although it would no doubt be a very interesting exercise very often for counsel for the applicant if he could. [219B] It is important, I think, to stress that, as far as I know, there never has been a case in which natural justice was invoked through the denial of documents except when the person to whom the documents had been denied was a person against whom some charge was being made. It is elementary that, if a charge is being made against a person, he must be given a fair chance of meeting it. That often means he must be given documents necessary for the purpose. But there is no charge here made against Mr. Peach, the applicant, and to my mind, try as he will, he fails to get himself in through any of these three doors. … [219E]

(ii) R (Annette Hay) v HM Coroner for Lincolnshire (19 February 1999) CO/2155/97 & CO2210/98 Keywords: Evidence, disclosure, witnesses This case arose from the death of an insulin-dependent diabetic prisoner in Lincoln Prison on 19 March 1997. Prior to the inquest hearing, the coroner refused to disclose a witness list to the deceased’s family’s legal representatives. They subsequently challenged this decision in the Divisional Court, arguing that such non-disclosure was unfair and contrary to the practice of other coroners. The Court (Brooke LJ and Forbes J) rejected the application, affirming the decision in Peach15 and refusing to fetter the coroner’s discretion on how to conduct the inquest.

15

R (Peach) v Her Majesty’s Coroner at Hammersmith (Nos 1 and 2) [1980] 1 QB 211. See above.

Evidence 221 44. … In our judgment the decision of this court in ex p Peach on the non-disclosure of statements taken by the police still represents authority which this court should follow. 46. We are unwilling, for our part, to fetter the discretion of a coroner by being at all prescriptive about the procedures he should adopt in order to achieve a full, fair and thorough inquiry. We have seen evidence that these matters are being considered by others, including a senior Home Office minister, and we would not wish to pre-empt the outcome of these discussions by ruling that procedural fairness requires that any particular pre-hearing procedure should be followed. Experience in other contexts, such as civil and criminal trials and planning and other inquiries, has shown that attention to points of detail in advance of a hearing often pays rich dividends, particularly by eliminating the need for avoidable adjournments. We are therefore sure that it would be helpful if the Coroners’ Society were to publish guidance to coroners about the different pre-hearing techniques which have been found to have been useful in different contexts, including Mr Fitzgerald’s idea of circulating a list of the witnesses the coroner provisionally intends to call, accompanied by a short summary of the gist of that witness’s evidence. The adoption of this course would have avoided some of the difficulties which arose in the present case. We are not, however, prepared to rule that any such procedures should be obligatory, even in an inquest of this kind. Subject to the need to obey the requirements of the Act and the Rules, it is for each coroner to decide how best he should perform his onerous duties in a way that is as fair as possible to everyone concerned, as well as doing his best to reduce the number of avoidable adjournments.

(iii) R (Bentley) v HM Coroner in the District of Avon [2001] EWHC 170 (Admin), [2001] Inquest LR 205 Keywords: Evidence, disclosure, witnesses The deceased died of a heroin overdose while resident at a bail hostel. An inquest took place which concluded with a verdict of accidental death. The deceased’s brother subsequently applied to quash the inquisition on basis that the coroner had refused to comply with a request for advance disclosure or a summary of the witness evidence prior to the hearing. Sullivan J granted the application and ordered a fresh inquest be held before a different coroner. He held that while advanced disclosure of documents was not required by the Coroners Rules 1984, the interests of fairness required such disclosure to be given to facilitate effective participation in the proceedings. 63. The request for advance disclosure was, on the face of it, a perfectly reasonable one. Certainly, no reason has been advanced by the Coroner as to why it should have been refused. The fact that the Rules do not require advance disclosure is not a sufficient answer. There is an overriding obligation to conduct the inquest in a fair manner. The requirements of natural justice, or fairness, are not immutable. What was considered a fair procedure 20 years ago may well be regarded as unfair by today’s standards. By way of example, the view that fairness very often requires the giving of reasons for a decision has been steadily gaining ground over recent years. 64. The Coroner had a discretion to permit advance disclosure of, for example, the post mortem report and the toxicological results. He had to exercise that discretion fairly, with a view to furthering the purpose of the inquest: to ascertain how Catherine came by her death, and bearing in mind the claimant’s entitlement to participate in the investigation under rule 20.16 It is difficult to

16 Coroners Rules 1984, r 20 prescribed that specific persons, including properly interested persons, were entitled to examine any witness at an inquest either in person or with an authorised person (such as a legal representative).

222 Peter Skelton QC see how the claimant could effectively exercise his rights under rule 20 if he was kept in complete ignorance of the most basic facts until the commencement of the inquest. 65. The proposition that a person will not be able to participate in proceedings in an effective way in the absence of advanced disclosure is increasingly recognised: see, for example, the changes made by the Civil Procedure Rules in ordinary civil litigation, the provisions of the most recent Town and Country Planning Inquiry Procedure Rules as an example of the way in which disclosure is dealt with in the field of Administrative Tribunals and Inquiries, and the provisions for greatly increased disclosure in criminal proceedings. 66. In R v Criminal Injuries Compensation Board, ex parte Leatherland and others (unreported, transcript dated 2nd July 2000), Turner J said this of the Board’s long standing policy of refusing to disclose to the claimants in advance of the hearing witness statements made by the police and available to the Board: ‘Any practice which leads to the withholding of material until the day of any judicial or quasijudicial hearing is calculated to be to the significant disadvantage of the party from whom they have been withheld … The argument that any injustice can be cured by the grant of an adjournment is nothing to the point. An adjournment may, or may not be granted, and even if granted will involve a represented appellant in extra costs and delay before final resolution of his appeal … When the straightforward step can be taken of making available to a party to the appeal material which, it is conceded he will be entitled to receive in any event, it makes no sense at all to say that he must wait and take his chance with obtaining an adjournment of his appeal from the Panel.’ 67. Under the Rules, if documentary evidence is proposed to be admitted at an inquest, persons falling within rule 20(2) will become entitled to see a copy by virtue of rule 37(3)(d). Without advance disclosure they may be placed at a significant disadvantage. In my judgment, the need for advance disclosure is not answered by the proposition that an inquest is an inquisitorial procedure. As mentioned above, persons falling within rule 20 have a role to play in the procedure. The requirements of fairness should reflect that role. It may well mean that in some cases there is less need for advance disclosure, or that advance disclosure need not be so extensive. But it does not follow that there is no need, in the interests of fairness, for any advance disclosure, particularly if the Coroner intends to rely on documentary evidence alone. … 71. I do not read Lord Widgery’s dicta in Peach17 as authority for the proposition that refusal of any form of advance disclosure to a person falling within rule 20 can never amount to a breach of natural justice. That view is confirmed by the observations of Brooke LJ in paragraph 46 of the Hay case.18 The court should not be prescriptive. The requirements of fairness will vary from case to case. In Peach, the Coroner’s refusal to disclose statements taken by the police was found not to have been a breach of natural justice on the facts of that case, according to the standards of fairness that prevailed at that time. It will be noted that Peach was not a case where the Coroner proposed to rely upon documentary evidence alone and was refusing to disclose that documentary evidence in advance; it was a case where it was proposed to call witnesses to give live evidence.

17 18

Peach (n 15). R (Annette Hay) v HM Coroner for Lincolnshire (19 February 1999) CO/2155/97 and CO2210/98.

Evidence 223

(iv) R (Ahmed) v HM Coroner South and East Cumbria [2009] EWHC 1653 (Admin), 2009 Inquest LR 177 Keywords: Evidence, disclosure, witnesses The deceased in this case was a 17-year-old girl whose body was found in concealed undergrowth several months after she had disappeared from her family home. Following an inconclusive police investigation, the coroner opened an inquest. The deceased’s family asked for copies of ‘all information or documents’ in the coroner’s possession prior to the inquest hearing. The coroner declined this blanket request but indicated that he would consider a specific request for disclosure. No such request was forthcoming, although the family repeated its general request. During the inquest hearing, the family made no complaint about the absence of disclosure of documents. The coroner reached a verdict of unlawful killing. The deceased’s family sought judicial review of the coroner’s conduct of the inquest on several grounds, including the non-disclosure of documents prior to the hearing. Irwin J rejected all of the complaints. In respect of disclosure, he upheld the principle in Peach19 that there was no obligation on the coroner to disclose statements to IPs in the absence of formal charges against them.20 He then considered the cases of Bentley21 and Smith,22 noting that the latter related to an Article 2 compliant inquest.23 In conclusion, he affirmed the principle that disclosure of evidence by the coroner is discretionary and held that, although a degree of disclosure would have been preferable, the coroner had not acted unreasonably given the opportunity he gave for specific disclosure. He also found that even had disclosure been given by the coroner it would not have made any material difference to the outcome. 48. … There is no hard and fast obligation on the part of a Coroner to disclose any witness statements or material: it is a matter of the exercise of discretion. Over time, and in particular in the last decade or so, there has been a much more liberal approach generally taken towards disclosure in inquests and that is to be, in general terms, applauded. It is often advisable that there should be disclosure of material central to the inquest, and here I make it clear that, in my judgment, it would have been preferable, whatever the lack of specificity of requests for disclosure, had the Coroner chosen to disclose some of the key material, for example the witness statements of those whom he intended to call. There are difficulties with disclosure, and real difficulties in the context of a case where criminal investigation is ongoing and there is the potential for future interview and investigation concerning some of those who would be necessarily part and parcel of the inquest. We have had one or two examples of how that might be the case, helpfully given to the court by counsel for the police in this hearing. It may be that disclosure would alert someone, who in due course might be a suspect for a serious crime such as this, as to how to frame a lying defence, not to put too fine a point upon it. Clearly, consideration and care will always have to be given to the ambit of disclosure.

19

Peach (n 15). R (Ahmed) v HM Coroner South and East Cumbria [2009] EWHC 1653 (Admin), 2009 Inquest LR 177, para 43. 21 R (Bentley) v HM Coroner in the District of Avon [2001] EWHC 170 (Admin), (2003) 74 BMLR 1, [2001] Inq LR 205. See above. 22 R (Catherine Smith) v Oxfordshire Assistant Deputy Coroner [2008] EWHC 694 (Admin), [2008] 3 WLR 1284, (2008) 103 BMLR 152, [2008] Inq LR 44. See below. 23 Ahmed (n 20) paras 44–47. 20

224 Peter Skelton QC 49. Having considered the matter carefully here, there were circumstances which seems to me would have made it preferable for a degree of disclosure to take place. Although it is of course correct that inquests are not trials, that no one is at risk of a charge, that there is no adversarial aspect to the exercise of the Coroner’s function, and that the Coroner has the difficult responsibility of ensuring that the inquest is not carried beyond proper bounds, we have to approach inquests in the real world. Often in situations like this, but not confined to situations like this, there will be hidden tensions, or at least competing positions between parties involved in the investigation. I use the term parties in the loose sense rather than in the strict sense. That may be so particularly where publicity is to be anticipated and where there is the risk that loose comment or false conclusions may be drawn by publicity following an inquest. In such a case it seems to me preferable to try and ensure that a balance is struck by giving some disclosure, for example of the witness statements of those intended to be called.

(v) R (McLeish) v HM Coroner for the Northern District of Greater London [2010] EWHC 2624 (Admin), [2010] Inquest LR 202 Keywords: Evidence, disclosure, post-mortem, delay The claimant, the deceased’s mother, sought judicial review of the coroner’s delay in disclosing the post-mortem report into her son’s death prior to the inquest. The claimant’s son was found dead after being reported missing. Upon identifying her son’s body at the mortuary, the claimant made clear to the coroner’s officer that she wanted to know how he had died. An autopsy was performed and an inquest opened and adjourned. The coroner’s officer sent out the Interim Fact of Death certificate which recorded that the precise medical cause of death had not yet been ascertained. This was followed by a letter to the claimant which, together with the certificate, suggested that the process of establishing the cause of death was ongoing and she would, in due course, be told what the answer was. Despite the claimant’s requests for further information, she was only provided with the post-mortem and toxicology report, months after they had been received by the coroner’s office. The toxicology report stated that no drugs had been detected and the post mortem recorded the death as ‘unascertained’. By the time the claimant received the reports the samples used for the toxicology report had been destroyed and the opportunity for further investigation lost. The coroner who eventually conducted the inquest (who had no involvement with the matters complained of) apologised for the delay and failure by the coroner’s service, before returning an open verdict. Smith J accepted that Bentley (see above) did not cover the situation which applied in this case, namely a stage months before the inquest as opposed to the stage at which the inquest was about to be held. Having regard to the case of Peach (see above), he went on to conclude at paragraph 52 that: I accept the general submission that there is no duty on a Coroner to disclose a post mortem or other report before the inquest without an application to do so, and no duty on the Coroner to disclose at all it if there is good reason not to do so. It is possible to imagine many circumstances in which that would be a proper stance to take. However, I find that the failure of the defendant in this case to give the claimant the opportunity to do so was a failure which prevented her from making an application in time for it to be any use, emphasising, as I have already, that this is a case

Evidence 225 where one of the principal purposes of an inquest, namely the establishing of the cause of death, has proved impossible to achieve. Peach was decided at a time when, in the criminal proceedings, there was no disclosure at all in contested trials in the Magistrates’ Court, and the duty of disclosure generally in criminal cases was almost entirely confined to disclosure of the convictions of witnesses and previous inconsistent statements of witnesses who were actually to be called by the Crown. One only has to state that to see how far disclosure in related fields to the present has come since that time.

Smith J made clear that this ruling was not intended to hold that post-mortem and other reports, or even the existence of such reports, must be disclosed to an interested person, absent an indication of the person’s wish to be informed. However, in this case, it should have been perfectly clear to the coroner’s officer that the claimant wanted to be informed of the fact that the reports had been received by the coroner’s office, and of their contents.

(vi) R (Lagos) v HM Coroner for the City of London (27 February 2013), unreported CO/12447/2011 Keywords: Evidence, disclosure, police The claimant, the husband of the deceased, sought judicial review of the coroner who had conducted the inquest into his wife’s death, challenging the fairness of the inquest process and the resulting verdict of suicide. During the proceedings, the claimant applied for disclosure of a written police report that the coroner had received prior to an inquest but had not adduced or relied upon during the inquest. Lang J rejected the application, on the basis that the report was not material evidence during the inquest and so was not material to the claimant’s grounds of review. In doing so, she made general remarks about the status of police reports during the inquest process: 3. In general terms, police reports submitted to coroners are a short summary of the police investigation. In this instance, the report summarised the witnesses and what they said and summarised the evidence of the investigation relating to the crime scene. Typically, they include the conclusion of the investigating officer and did so in this case. The purpose of the report is to assist the coroner in understanding the evidence and the issues relating to the death and to decide which witnesses are to be called to give evidence at the inquest. The police report is not primary evidence and in practice it is never disclosed.

(vii) Brown v Norfolk Coroner (Practice Note) [2014] EWHC 187 (Admin), [2014] 1 WLR 3191 Keywords: Evidence, disclosure, pre-inquest review hearing An inquest took place into the sudden death of a 41-year-old woman. In his verdict, the coroner concluded that it was not possible to reach a safe and reliable conclusion as to the cause of death. However, in his findings he excluded the possibility that the deceased had been unlawfully killed or had taken her own life. He also recorded that there was a real possibility that the deceased, who was not a diabetic, had self-injected insulin and consumed alcohol which, in combination, may have caused her death.

226 Peter Skelton QC

Following the inquest, it became clear that insulin could not in fact have contributed to the deceased’s death, as her blood sugar had normal when tested by the paramedics who had attended the scene after she was found. The deceased’s step-father applied to the High Court for an order quashing the inquest into his step-daughter’s death. He did so on the grounds that (1) the coroner had proceeded under the mistaken apprehension that the cause of death may have been self-injected insulin, and (2) the local police had dishonestly covered up various deficiencies in the original investigation into the deceased’s death. He also complained that the coroner had prevented him from participating properly in the inquest, including not providing advance disclosure of relevant documents and not allowing him to examine witnesses fully. Pitchford LJ and the Chief Coroner accepted the first, but not the second, ground of challenge and ordered that the inquest be quashed and a fresh inquest take place before the new coroner. They did not rule on the complaints made by the claimant about the coroner’s actions during the inquest. But in his judgment, the Chief Coroner made various comments about the pre-inquest review (PIR) process with the express purpose of establishing ‘good practice’ in their conduct, including the disclosure of evidence by the coroner to the IPs. 39. A pre-inquest review hearing, where held, is an important stage towards the final hearing. In each case the coroner should ensure that all interested persons, particularly bereaved families, have sufficient notice of the matters to be discussed at the pre-inquest review hearing. The claimant asserted in this case that he had no notice of what was going to be discussed at the hearing and was therefore unprepared when asked which witnesses should attend to give evidence and whether he accepted that the cause of death could not be established. Coroners should therefore provide a written agenda in advance and, if appropriate, express provisional views so that agreement or opposition can be expressed. 40. The agenda, which should be tailored to the individual case, should include, amongst other things, and particularly in the more complex or difficult cases: a list of interested persons; a proposed list of witnesses identifying those who may be called and those whose statements may be read; the issues to be considered at the inquest; the scope of the evidence; whether a jury will be required; whether Article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms is engaged, any issues of disclosure, the date of the final hearing, and any other relevant matters. In a complex or difficult investigation interested persons should be invited to respond to the coroner’s agenda in advance of the pre-inquest review hearing in writing, stating what they agree with and what they do not agree with. 41. The coroner should also ensure that interested persons, particularly those unrepresented, have sufficient disclosure of relevant statements and documents before the pre-inquest review hearing so as to be able to address the agenda on an informed basis. The claimant asserted in this case, as the coroner’s note of the hearing states, that ‘he had not received copies of the post mortem and toxicology reports’. If correct, that would have placed him at a considerable disadvantage for the pre-inquest review hearing.

(viii) Wilson v HM Senior Coroner for Birmingham and Solihull [2015] EWHC 2561 (Admin) Keywords: Evidence, medical care The claimant, a consultant cardiothoracic surgeon, sought judicial review of the coroner for including in her narrative conclusion a finding that there had been a failure to record accurate post-operative data in respect of a large number of his former patients. He did so

Evidence 227

primarily on the basis that during the inquest the coroner had not properly explored the evidence relating to data recording and had not given the claimant a meaningful opportunity to challenge that evidence. The Divisional Court (Burnett LJ with whom Holroyde J agreed) dismissed the claim, holding that (1) the coroner was entitled to limit the evidence in the way she did, (2) the claimant had been given sufficient notice of the issue of data recording and an adequate opportunity to address that issue in his evidence, and (3) on the evidence before her, the coroner was not irrational in reaching the conclusion that she did. In doing so, the court affirmed the general principle that an inquest is an inquisitorial process which should be distinguished from litigation in the civil and criminal courts: 26. An inquest is the culmination of an investigation which must determine how, when and where the deceased came by his death: section 5 of the 2009 Act. As Sir Thomas Bingham noted in R v North Humberside Coroner, ex parte Jamieson [1995] QB 1, it is for the coroner fully, fairly and fearlessly to investigate deaths and it is for the coroner to set the bounds of the inquiry: see general conclusion 14. An inquest is an inquisitorial process and not comparable to a criminal trial or civil proceedings. Lord Lane CJ memorably stated in R v South London Coroner, ex parte Thompson (1982) 126 SJ 625, DC: ‘Once again it should not be forgotten that an inquest is a fact finding exercise and not a method of apportioning guilt. The procedure and rules of evidence which are suitable for one are unsuitable for the other. In an inquest it should not be forgotten that there are no parties, there is no indictment, there is no prosecution, there is no defence, there is no trial, simply an attempt to establish facts. It is an inquisitorial process, a process of investigation quite unlike a trial where the prosecutor accuses and the accused defends, the judge holding the balance or the ring, whichever metaphor one chooses to use.’ 27. Fairness in an inquest must be fashioned in an environment where there are no pleadings and in which those given leave to appear as interested persons do not have a case to put. The evidence at inquests often takes an unexpected turn and calls for a degree of flexibility in the procedure to be followed as a consequence. The rules of evidence applied in criminal and civil proceedings do not apply. Questions of fairness to those involved in inquest proceedings must be judged against all these essential features and also in the context that the statutory scheme prohibits a finding of criminal liability on the part of a named person, or of civil liability.

C. Disclosure in Article 2 Inquests (i) R (Catherine Smith) v Oxfordshire Assistant Deputy Coroner [2008] EWHC 694 (Admin), [2008] 3 WLR 1284 Keywords: Evidence, disclosure, Article 2, military personnel The claimant, Catherine Smith, was the mother of a soldier who died from hyperthermia in Iraq in 2003. At the resulting inquest the coroner held that Article 2 ECHR did not apply and that he had no power to provide disclosure of certain information. The claimant sought judicial review of these decisions. The coroner subsequently consented to the quashing of the inquisition and ordered a fresh inquest on the ground that he had erred on the disclosure point. However, the court was asked to address the other grounds in her claim and provide guidance for the fresh inquest. At first instance, Collins J gave the following guidance on disclosure in his judgment.

228 Peter Skelton QC 35. All statements and documents produced routinely redact the names of any person. This makes it very difficult and sometimes impossible for interested parties to make preparations to deal with the evidence of a particular witness or to understand how that witness fits in to the whole picture. This redaction is taken to absurd lengths: thus the names have been redacted from correspondence which had been sent to the family or their representatives. In addition, all material which is said to be irrelevant is also redacted. 36. While I gather that the full material is sent to the coroner together with the redacted versions, it seems to me that there is no justification for the practice adopted. Naturally, any specific claim that a witness’s identity should not be disclosed because, for example, he or she might be put at risk of harm or because there was a particular request and need for confidentiality, can be made and should be considered by the coroner. Equally, any claim that material should not be disclosed on national security grounds must be considered by the coroner. His is an inquisitorial, not an adversarial, process. He must have all the information, but he must bear in mind the requirements of the procedural obligation which include enabling the family to play a proper and effective part in the process. 37. It may not always be necessary for there to be full disclosure to interested parties, in particular to the next-of-kin, of all reports and statements. In pre- Middleton days, the courts tended to uphold coroners when they decided against disclosure. Thus in R v HM Coroner for Lincoln, Ex p Hay [2000] Lloyd’s Rep Med 264, 271 we find the court through Brooke LJ observing that it was not prepared to rule that advance disclosure should be obligatory and it was for an individual coroner to decide ‘how best he should perform his onerous duties in a way that is as fair as possible to everyone concerned’. In R (Bentley) v HM Coroner for Avon (2001) 166 JP 297 Sullivan J considered what should be the practice in relation to disclosure. It was his view, with which I entirely agree, that there must be a presumption in favour of as full disclosure as possible. Cost, if a problem, can be dealt with by a requirement that those who seek disclosure must pay all reasonable copying charges and it may be that all that is needed in some cases is that the party’s representatives have access to the material and take copies only of that which is regarded as essential. But in an Article 2 case it will be difficult to justify any refusal to disclose relevant material. 38. I would only add that any disclosure should be made subject to the recipient giving an undertaking not to use it other than for the purposes of the inquest and, if considered necessary, to return it when it has served its purpose. This will help to avoid intrusive media attention since the undertaking will prevent disclosure to any third parties.

(1) Disclosure in Civil Proceedings for the Purposes of an Inquest

(i) Stobart v Nottingham Health Authority [1993] PIQR P259, [1992] 3 Med LR 284 Keywords: Evidence, experts, medical care In this case three claimants brought civil proceeding against various hospitals arising from the deaths of their children as a result of allegedly negligent medical treatment. They applied for orders from the High Court for pre-action disclosure of documents for the specific purpose of using the documents during the inquests into the deaths of the children. Rougier J granted the application on the basis that the evidence would be used for the legitimate purpose of ascertaining the causes of the children’s deaths. At 260–61 the judge said: [I]t is a principle of both types of discovery that it can only be used in relation to the proper conduct of the action in which it is made and not for any ulterior or collateral purpose. For the present

Evidence 229 purposes it seems to me the question boils down to this. Within the remit of a Coroner’s Inquest, are there any legitimate purposes for which disclosure of the documents are reasonably necessary for the plaintiffs to undergo the proper conduct of the action. I consider that part of the proper conduct of an action is all appropriate inquiries into the salient facts upon which the action will be based. I cannot accept the proposition that proper conduct of an action was not involved in investigation at an early stage. On behalf of the plaintiffs, one purpose alone is advanced. Because it must be borne in mind that a Coroner’s remit, as is shown by the Coroners Act and the rules made thereunder, is a narrow one and for present purposes is limited to ascertain the cause of death. The argument is that anybody who is advising a potential plaintiff in a fatal accident action, especially where the cause of action is likely to be what is sometimes called ‘medical negligence,’ although the phrase is not a very happy one, will be concerned to know the cause of death. From there, it is argued that since the Coroner is also concerned to discover the cause of death, it is a legitimate purpose for the plaintiffs to have the relevant documents in attending the Inquest, so that they, armed with appropriate expert advice, may take part in the inquisitorial proceedings and play their part in helping the Coroner and themselves to establish what was the cause of death. That, it is claimed, is not an ulterior or collateral purpose. It is what I might call a direct purpose. On behalf of the defendants, Mr. Nolan submits that the nature and the objectives and the conduct of proceedings at an Inquest are so different from that of an adversarial Court action that any use of Discovery at such an Inquest, even if limited to the Coroner’s remit, amounts to a collateral purpose. The Coroner, says Mr. Nolan, decides what evidence to call and that is that. I cannot agree with that. I take the view that within that very narrow limitation the ascertainment or the attempts to ascertain the cause of death which can be conducted at a Coroner’s Inquest is not a collateral purpose but is a purpose well within the reasons for granting pre-action discovery. In answer to the question, ‘Well if the plaintiffs are entitled to it at some time, what is the objection to having it before the Inquest?’, the objection was made that the defendants do not want a dry run, as it were, of litigation and cross-examination directed to eliciting possible allegations of negligence. The High Court, says Mr. Nolan, should not be giving impetus to attempts to usurp the Coroner’s function. It seems to me that those objections, although understandable, are based on a fear that the Coroner will not do his job properly. Any attempt to use material disclosed for any purpose other than the narrow purpose of ascertaining the cause of death would, in my judgment, be departing from the implied undertaking not to use the material for collateral purposes. Not only would the Coroner be obliged to nip any such attempt in the bud, but the further safeguard would be provided by the fact that those who appeared at the Inquest for the potential defendants would no doubt be quick to rise to their feet and object.

(2) Expert Evidence Broadly speaking experts may be required to address one or both of the following issues: (1) Causation of death—where medical expertise is routinely required (most commonly from a consultant pathologist, but also as necessary from specialist clinical practitioners or experts such as toxicologists or microbiologists); (2) Conduct of persons whose actions or omissions may have contributed to the death— where those persons were exercising specialist skills or judgments and expert input is required to understand the issues and/or to determine whether those persons acted appropriately.

230 Peter Skelton QC

As the cases below illustrate, the absence of relevant expertise may result in an insufficiency of inquiry or a failure to comply with Article 2 ECHR (if engaged), and may thereby justify an order for a new inquest. It is open to interested persons to obtain their own expert reports. Such reports may be for private use during the inquest, for example to facilitate understanding of the issues under scrutiny or to inform the examination of particular witnesses. Or they may be disclosed to the coroner with, for example, a request than an inquest be opened or that the coroner obtains his or her own expert in the same specialist field. (a) Experts Generally

(i) R (Touche) v Inner London North Coroner [2001] EWCA Civ 383, [2001] 1 QB 1206 Keywords: Evidence, experts, medical care Mrs Touche, the claimant’s wife, died as a result of severe hypertension after giving birth at a private hospital. He sought an order overturning the coroner’s refusal to open an inquest on the grounds that she had died a natural death. In doing so, he relied on reports from various medical experts that provided grounds for suspecting that the hospital had failed to monitor the deceased’s blood pressure and that such failure was the an effective cause of her death. The Divisional Court granted his application. The Court of Appeal, per Simon Brown LJ with whom Robert Walker LJ and Keene LJ agreed, dismissed the coroner’s appeal. In doing so, they held that there was reasonable cause to suspect that the deceased died an unnatural death in that it was at least contributed to by the hospital’s neglect. 29. … the critical questions now to be asked under this head are whether, on the evidence presently available, there is reason to suspect, first, that there was a gross failure by the Portland Hospital to provide Mrs Touche (indisputably a dependent in their care) with basic medical attention, and, second, that her need for such attention was obvious at the time. … 32. I find Mr Havers’s argument on this part of the case compelling. That, of course, is not to say that if an inquest is now held the coroner (or jury) will be bound to qualify the inevitable verdict of death from natural causes by a reference to ‘neglect’. That would inevitably depend upon the evidence as it emerges and the coroner’s (or jury’s) evaluation of it in the light of appropriate legal directions (or self-directions) based on Ex p Jamieson. Still less, let me make plain at this point, am I indicating any view upon the merits or prospects of success of a very substantial damages claim which apparently Mr Touche has outstanding against the Portland Hospital. Those proceedings are entirely separate from these and everything I have said is without prejudice to them. Who knows what evidence the hospital may have? Rather it is to conclude no more than that upon such material as is presently available to the coroner he could not properly decide otherwise than that there is reasonable cause to suspect that Mrs Touche’s death was (a) at least contributed to by ‘neglect’ (narrowly defined as by Ex p Jamieson) and thus (b) unnatural (as would necessarily follow from Ex p Thomas). … 46. … It is the combination of their unexpectedness and the culpable human failing that allowed them to happen which to my mind makes such deaths unnatural. Deaths by natural causes

Evidence 231 though undoubtedly they are, they should plainly never have happened and in that sense are unnatural. 47. An inquest will, of course, be held only if the coroner has reasonable cause to suspect such a combination of circumstances. That does not mean that he will have to make detailed investigations into every hospital death. Mr Burnett’s fears in this regard are to my mind misplaced. Nor would I expect such a view of the law to involve any substantial increase in the number of inquests now requiring to be held.

(ii) N (a child) v HM Coroner for City of Liverpool [2001] EWHC 922 (Admin), [2001] Inquest LR 249 Keywords: Evidence, experts, police, delay The deceased had died in police custody having consumed a fatal quantity of opiates following his arrest. His family obtained expert evidence from a consultant in emergency medicine (Professor Redmond), who concluded that the medical treatment N received at the police station from the force medical examiner (Dr Goldberg) was unreasonable, and that with appropriate treatment N’s death was ‘entirely preventable’. The family sent Professor Redmond’s report to the coroner and subsequently applied for an adjournment of the inquest so that he could give oral evidence. The coroner repeatedly refused this request on the grounds that (1) it would cause further delay, (2) the issues on which the expert commented were matters of civil negligence not neglect or lack of care, and (3) it was not fair or reasonable for a consultant in emergency medicine to judge the standards of a police surgeon. The inquest then proceeded without Professor Redmond’s evidence and a verdict of death by misadventure was recorded. The family subsequently brought successful judicial review proceedings and Sullivan J, with whom Rose LJ agreed, directed that the verdict be quashed and that the same coroner conduct a new inquest. 49. … In my judgment, none of the three reasons given by the Coroner for not calling Professor Redmond to give evidence can be sustained. Professor Redmond’s very considerable expertise weighed in favour of calling him to give evidence rather than the reverse. His report does not purport to judge Dr Goldberg by the standards of an Emeritus Professor of Emergency Medicine, but by the standards of ‘any doctor acting reasonably’. 50. No doubt calling Professor Redmond might well have led to a further adjournment, but the death was by then four and a half years old. There had been an adjournment in March 2000 to enable Dr Goldberg to be represented. Whilst further delay would certainly have been undesirable, there could have been no sensible objection to a further short adjournment measured in weeks or perhaps one to two months. There is no indication that a lengthier adjournment would have been required or that the position of any of the parties would have been prejudiced in any particular way beyond the obvious point that any further delay in a long outstanding case was to be deplored. 51. I turn then to the Coroner’s principal reason for refusing to call Professor Redmond; that his report was concerned, on its face, not with neglect, applying the Jamieson test, but with medical negligence, applying the Bolam test. 52. Notwithstanding Mr Burnett’s submission that neglect and negligence are two different ‘animals’, there is, in reality, no precise dividing line between ‘a gross failure to provide … basic

232 Peter Skelton QC edical attention’ and a ‘failure to provide … medical attention’. The difference is bound to be one m of degree, highly dependent on the facts of the particular case. 53. Standing back and looking at the facts of the present case, one starts with a death in custody. As the then Master of the Rolls said in Jamieson, such deaths rightly arouse acute public concern. Professor Redmond’s report stated that this death in custody was ‘entirely preventable’ by steps that could have been expected of any doctor acting to a reasonable standard. 54. Such a statement in respect of the death of a person in custody pointed to a need for the fullest investigation.

(iii) R (Mulholland) v HM Coroner for St Pancras [2003] EWHC 2612 (Admin), [2003] Inquest LR 60 Keywords: Evidence, experts, police, medical care The deceased was involved in a scuffle with the manager of a shop during which he fell and suffered a head injury. He was reviewed by an ambulance technician at the scene who noted a small graze on his head but found no signs of neurological deficit. He was then detained by police and taken to a police station. His medical condition then deteriorated and he was taken to hospital where, despite treatment, he died from his original head injury. During the inquest, the expert pathologist called by the coroner stated that if the deceased had been taken to hospital immediately after his fall then he would still have died. The claimant (the deceased’s sister) sought an adjournment of the inquest on the basis of evidence from a consultant in accident and emergency medicine which was said to challenge the conclusion of the pathologist; although no such evidence was put before the court. The coroner refused and a verdict of accidental death was returned. After the inquest, the claimant obtained medical reports from the accident and emergency consultant and from a consultant neurosurgeon. The latter concluded that on the balance of probabilities the deceased would have survived if he had received prompt medical treatment after his fall. The claimant then initiated judicial review proceedings seeking a fresh inquest. At the hearing before the Divisional Court, her counsel argued that in light of new expert evidence the treatment provided to the deceased by the ambulance technician and by the hospital should be re-evaluated. He submitted that the question for the court was whether there was a gross failure of care and whether that failure was causative of the death; and that there was sufficient possibility of a different verdict that the court should set aside the previous verdict. Kennedy LJ, with whom Royce J agreed, rejected the claimant’s application. They held, applying Jamieson,24 that the evidence did not support a finding of gross systemic or individual negligence, leaving aside the issue of causation, and that complaints about the deceased’s treatment were matters for the civil courts. 36. … I certainly do not detect a level of criticism capable of supporting a finding of gross negligence in the system, as opposed to on the part of any individual, leaving aside the problem of showing that the treatment actually administered or the lack of appropriate treatment was causative of

24 R v HM Coroner for North Humberside & Scunthorpe, ex parte Jamieson [1995] QB 1, per Sir Thomas B ingham MR at 23G.

Evidence 233 death. If there are grounds for complaint about the way in which the deceased was dealt with after his arrival at the hospital that, as it seems to me, is a matter for litigation in the civil courts, and I am far from satisfied that it is necessary or desirable in the interests of justice that another inquest should be held. I would therefore dismiss both the claim for judicial review and the application for relief under section 13 of the Coroners Act 1988.

(iv) R (Bloom) v HM Assistant Deputy Coroner for the Northern District of London [2004] EWHC 3071 (Admin), [2004] Inquest LR 244 Keywords: Evidence, experts, medical care The deceased died from an infection which developed after an operation to remove a kidney stone. Prior to the inquest, the family obtained an expert report from a consultant anaesthetist, which was critical of deceased’s care following surgery. However they did not disclose the report to the coroner, ask for expert to be called, or ask for the coroner to obtain his own expert. The consultant anaesthetist subsequently maintained the substance of the views expressed in his report, in the light of the evidence which was given at the inquest. After the inquest the family also obtained a report from a consultant urologist, which was critical of the surgical care given to the deceased. The family applied under section 13 of the Coroners Act 1988 (CA 1988) to quash the inquest and order a new one. Tuckey LJ dismissed criticisms of the coroner for the way in which he conducted the inquest. In particular he held that it was not necessary for the coroner to obtain his own independent expert evidence, stating at paragraph 25: It is said that the coroner should have obtained independent expert advice to enable him to investigate properly whether the deceased’s treatment was adequate and should not simply have relied on the evidence of the treating doctors and nurses. I do not accept this submission. I can see nothing in this case which ought to have triggered the need to give thought to taking such advice. After all, the deceased’s family were in possession before the inquest of a report which was strongly critical of certain aspects of what Dr Timmis did or did not do. They could have asked for Dr Bristow to be called, or sent a copy of his report to the coroner to alert him to the views of another consultant anaesthetist, but they did not do so.

However, having dismissed the criticisms of the coroner, Tuckey LJ went on to allow the application. Section 13 of the CA 1988 contained a free-standing power to order a new inquest ‘where … the discovery of new facts or evidence or otherwise [makes it] necessary or desirable in the interests of justice’. In light of the original expert evidence, there was a possibility of a verdict of neglect and a different cause of death. It was not decisive that the applicant could have asked questions or raised issues at the original inquest but failed to do so. The family was entitled to a full inquiry into how and why the death occurred.

(v) R v Hickinbottom 19 April 2005 (T20047165), [2007] Inquest LR 1 Keywords: Evidence, experts, unlawful killing, criminal law This judgment may be relied on in a coronial context as authority for the principle that where there is the possibility of a finding of criminal conduct involving a professional person (eg a verdict of unlawful killing), then expert evidence will be required on the standards applicable to that person’s job.

234 Peter Skelton QC

In this criminal case, a young woman was arrested in Lincolnshire on suspicion of shoplifting and taken to a police station, where she admitted to having taken heroin earlier in the day but did not mention that she had also taken some prescription-only medication. No charges were brought and the custody officer instructed two constables to drive the woman to a place near the county border and release her. She subsequently died of hypothermia and the three police officers were charged with gross negligence manslaughter. At the conclusion of the trial in Hull Crown Court, Dobbs J accepted the three officers’ submissions of no case to answer on the basis that there was no or no sufficient evidence as to the standard of care owed to the deceased. 7. In my view, where a professional person is charged with an offence of this kind, an allegation made against them in relation to their conduct during the course of their job, it will be necessary in most cases for the jury to have evidence, whether one calls it expert evidence or not, of the standards applicable within that job, whether it be common practice, guidance, rules or the like. It is not for the jury to determine what police officers should do in certain situations, but for them to determine in the light of what is accepted behaviour within the profession whether they fell below those standards and, if they did, to what extent and whether the extent was so bad as to be criminal. … 12. The consequence of this lack of evidence is that the jury has no benchmark against which to judge: (a) whether in all the circumstances there had been a breach of duty of care; and (b) if so, whether that breach was so serious as to be criminal. 13. It follows that I find the first half of the defence submissions made out and I do not therefore need to consider the question of causation.

(vi) R (Goodson) v HM Coroner for Bedfordshire and Luton [2004] EWHC 2931 (Admin), [2006] 1WLR 432 Keywords: Evidence, experts, medical care The claimant sought judicial review of the coroner’s decision declining to treat the inquest into the death of her father as an inquiry for the purpose of Article 2 ECHR and declining to obtain independent expert evidence as to the medical care provided. The claimant’s father died following an operation to deal with gallstones in an NHS hospital. At the time, the procedure was thought to have been carried out without any complications. However, the deceased subsequently deteriorated on the ward and suffered a fatal cardiac arrest. The post-mortem concluded that the cause of death was peritonitis. At the inquest the coroner decided only to call the pathologist and the relevant hospital consultant surgeon. The claimant wrote to the coroner stating that she considered that Article 2 was engaged and the coroner should consider whether there had been a system failure with the help of independent expert evidence. The coroner refused both applications but agreed to review this decision at the end of the inquest once he had heard all the evidence. Having heard the evidence, the coroner was satisfied that there were no signs of any negligence and no need for further independent expert evidence. Richards J held that ‘simple negligence’ in the care and treatment of a patient in hospital, resulting in the patient’s death, was not sufficient in itself to amount to a breach of the state’s positive obligations under Article 2 and that in the circumstances the investigative

Evidence 235

obligation under Article 2 was not engaged. The coroner had therefore been correct to refuse the application that the inquest be conducted as an investigation for the purposes of Article 2. Even if the investigative obligation under Article 2 was engaged the inquest as conducted had complied with it. In relation to the issue of expert evidence, Richards J held at paragraph 71: As to effectiveness, the lack of independent expert evidence or review was certainly one of the reasons why the inquest in R (Wright) v Secretary of State for the Home Department [2001] UKHRR 1399, a case of death in custody, was held not to have been an effective investigation. The same is true of R (Nicholls) v Liverpool City Coroner [2001] EWHC Admin 922, another case of death in custody, though it had the particular feature that the deceased’s family had instructed a medical expert whose report contained adverse comment on the standard of care received by the deceased but whom the coroner refused without good reason to call as a witness. So too in R (Stanley) v Inner North London Coroner [2003] EWHC 1180 (Admin), a case concerning the use of fatal force by police officers, the coroner’s failure to call relevant experts who were present at the inquiry, including one funded by the family of the deceased, was held to be one of the reasons why the inquest was flawed. But each of those cases was decided on its own particular facts. None of them purported to lay down any principle that independent expert evidence is always required in order to render an inquest an effective investigation for the purposes of Article 2. And in my view there can be no such principle. Everything must depend on the particular circumstances, including the expertise of the coroner himself and the precise nature of the issues and evidence before him.

(vii) R (Takoushis) v HM Coroner for Inner North London [2005] EWCA Civ 1440, [2006] 1 WLR 461 Keywords: Evidence, experts, medical care, mental health For a fuller summary of this case see Chapter 18 on mental health and capacity. The deceased, a long-term schizophrenic, absconded from hospital and died after jumping off a bridge. At the inquest, the coroner refused an application by the deceased’s widow for an adjournment with a view to (1) summoning a jury, and (2) enabling the family to instruct an expert to comment on the hospital’s system for dealing with persons at high risk of suicide or self-harm. The coroner found that there had been no systemic failure on the part of the hospital and the inquest concluded with a verdict of suicide. The Court of Appeal held that the coroner had failed to carry out a full and fair investigation of the kind envisaged in Ex p Dallaglio25 and Jamieson,26 which would have involved investigation both of the system at the hospital and its operation on the day in question. It ordered a new inquest. On the issue of expert evidence the Court stated at paragraph 61 that: … if an interested person wishes a coroner to call expert evidence in any particular case, it is for that person (if at all possible) to identify the witness and put the substance of the evidence which the witness may be able to give before the coroner so that the coroner may be able to decide whether or not it is appropriate. Whether or not it is appropriate here may well depend upon the evidence

25 26

R v HM Coroner for Inner West London, ex parte Dallaglio [1995] 4 All ER 139. Jamieson (n 24).

236 Peter Skelton QC of fact … It may also depend upon precisely what system the hospital now has and the views of any such expert on it.

(viii) R (Canning) v HM Coroner for County of Northampton [2006] EWCA Civ 1225, [2006] Inquest LR 155 Keywords: Evidence, experts, medical care The deceased, a child with severe cerebral palsy, died in a residential respite care centre following an infarction of the small bowel. The coroner refused to hold an inquest, on the basis that there was no element of culpable failing and the deceased’s death was not unnatural. The claimant (the deceased’s father) obtained an expert report indicating that the deceased may have survived with earlier medical attention—but not that the carers had been at fault in not seeking medical advice. This report did not alter the coroner’s view. The Court of Appeal (Carnwath LJ with whom Keene and Ward LJJ agreed), applying Touche,27 upheld the judgment of the Divisional Court refusing to overturn the coroner’s decision, on the basis that the expert evidence did not establish that anyone was culpable in respect of the deceased’s death. 3. The main points can be summarised shortly. The coroner’s duty in the matter is defined by Section 8(1) of the Coroner’s Act 1988. He was required to hold an inquest if there was: ‘reasonable cause to suspect that the deceased— a) has died an “unnatural” death’. The Divisional Court proceeded on the basis that that test would be met by— ‘a wholly unsuspected death from natural causes which would not have occurred but for some culpable human failure’. Those words are taken from the judgment of Simon Brown LJ in R (Touche) v Inner London North Coroner [2001] 1 QB 383. For the purposes of this appeal there has been no dispute that that is the appropriate test to be applied. The words ‘reasonable cause to suspect’ imply a low threshold. They do not require a prima facie case; see Hussein v Choung Fook Kam [1970] AC 942. Finally, the coroner’s decision not to hold an inquest can only be impugned on Wednesbury grounds, in other words for irrationality or illegality; see Touche per Simon Brown LJ at paragraph 16 and Terry v East Sussex Coroner [2002] QB 312 para 21.

(ix) R (Bicknell) v HM Coroner for Birmingham/Solihull [2007] EWHC 2547 (Admin), [2007] Inquest LR 244 Keywords: Evidence, experts, mental health The daughter of the deceased sought judicial review of a decision by the coroner not to hold an inquest into his death. The deceased died after being admitted to a nursing home which provided residential care for the elderly who suffered from mental health problems. The cause of death recorded

27

R (Touche) v Inner London North Coroner [2001] EWCA Civ 383, [2001] 1 QB 1206.

Evidence 237

on the death certificate was ‘I(a) Bronchopneumonia II Dementia’. The claimant was concerned about the circumstances surrounding her father’s death—in particular whether he might have died in a chair known as a ‘bucket chair’ into which elderly and/or restless patients were placed, having also had concerns about the care which he had received whilst alive. However, she did not complain at the time of his death. The death of the deceased was not reported to the coroner at that time and a cremation took place later. She was subsequently contacted by the National Care Standards Commission and the Birmingham & Black Country SHA who investigated the home and were critical of its standards. Disciplinary action was then taken by the General Medical Council (GMC) against the two GPs who ran the home, which resulted in the suspension of their registrations as medical practitioners. The claimant obtained a report from a medical expert who was critical of the medical records, the over-use of anti-psychotic medication, the use of the ‘bucket chair’ and the possible failure to give antibiotics promptly enough after the diagnosis of pneumonia. The claimant provided the coroner with the expert report but he refused to hold an inquest. The claimant then challenged coroner’s refusal to hold an inquest as being (1) irrational, and (2) in breach of Article 2 ECHR. McCombe J stated at the outset that the view he took of the first point arising under the CA 1988 made it unnecessary to decide the second. In respect of the 1988 Act, given that by the time the coroner had knowledge of the family’s concerns the deceased had already been cremated, the issue was whether or not he should have reported the death to the Secretary of State who could then direct that an inquest be held under section 15. The coroner had decided under section 8 of the 1988 Act that he did not have reasonable cause to suspect that the deceased had died an unnatural death and therefore did not consider that an inquest ought to be held for the purposes of section 15. McCombe J applied Touche (see above) and held that a coroner should hold an inquest where (1) there was a possibility of a verdict of neglect (the narrow ground), or (2) a wholly unexpected death from natural causes would not have occurred but for some culpable human failure (the wider ground). In light of the claimant’s expert evidence, and other factors, both grounds in Touche were satisfied and the coroner should have decided that an inquest ‘ought to be held’ and should have reported the facts to the Secretary of State.

(x) Jones v HM Coroner for the Southern District of Greater London [2010] EWHC 931 (Admin), [2010] Inquest LR 80 Keywords: Evidence, experts, medical care The deceased died from an overdose of Fentanyl, a strong opioid painkiller which he had been prescribed by two out-of-hours medical services and his GP. The inquest concluded with an open verdict, the coroner being unable to explain exactly how the deceased ended up taking a fatal dose of the drug. Following the inquest, at the behest of the claimant (the deceased’s mother), investigations were conducted into his death by the local primary care trust (PCT), the Royal Pharmaceutical Society, the GMC and NHS Direct. The claimant also directed the PCT’s attention to various reports in the US about unintentional deaths associated with overdoses of Fentanyl. The PCT investigation resulted in criticisms of the deceased’s medical management and a series of detailed recommendations to the out-of-hours service, the deceased’s

238 Peter Skelton QC

GP service, the British National Formulary and the Medicine and Healthcare Products Regulatory Agency. The claimant then sought a court order for a fresh inquest on the grounds of the new evidence that was available and the alleged insufficiency of enquiry by the coroner at the original inquest. The Divisional Court acceded to her request, pursuant to section 13 of the CA 1988, and applying Jamieson28 and Dallaglio.29 Toulson LJ and Owen J held that evidence from an expert toxicologist should have been obtained, which may have led to further investigation of the circumstances of surrounding the deceased’s prescriptions (paragraph 28). In their view, this may have led to a different conclusion of accidental death (paragraph 29). They also considered that in light of the new information about the incidence of death from unintended Fentanyl overdoses there was a wider public interest in a full inquiry into the means by which the deceased met his death (paragraph 30).

(xi) Chambers v HM Coroner for Preston and West Lancashire [2015] EWHC 31 (Admin) Keywords: Evidence, experts, prisons The deceased hung himself while detained at HMP Preston. During the resulting inquest, the jury heard evidence about his history of self-harm and the matters that may have precipitated his death. The management of the prison’s response to the deceased’s risk of suicide was also explored. However, the coroner did not adduce independent psychiatric evidence as to his treatment, or lack of treatment, during his detention. The jury returned a short narrative verdict stating that the deceased died from hanging; that family problems and bullying were among the contributing factors; and that there was not enough evidence to suggest that the prison was aware that he was being bullied. The claimant (the deceased’s three-year-old daughter) sought an order for a fresh inquest on the principal ground that there had been insufficiency of inquiry into the deceased’s management by the prison, including a failure to adduce psychiatric evidence. In doing so, she relied on the report of a consultant psychiatrist, who considered that the deceased should have undergone a psychiatric assessment prior to his death. The High Court (Bean LJ and the Chief Coroner) rejected the claimant’s application. It held that the claimant’s expert psychiatrist added little or nothing to the medical picture and that, looking at the broader picture, there had been sufficiency of inquiry on all relevant issues, including the management of the risk of suicide. It recognised that the coroner had a wide discretion in respect of expert witnesses and distinguished the two cases of Wright30 and Warren,31 stating: 30. Both Wright and Warren are cases with exceptional features. In Wright these included the fact that the shortcomings in the deceased’s medical treatment were so clear that liability for negligence

28

Jamieson (n 24). Dallaglio (n 27). 30 R (Wright) v Secretary of State for the Home Department [2001] EWHC (Admin), [2001] Inquest LR 66. See below. 31 R (Warren) v HM Assistant Coroner for Northamptonshire [2008] EWHC 966 (Admin), [2008] Inquest LR 65. See below. 29

Evidence 239 was admitted; that the prison doctor responsible for Mr Wright’s treatment had been subject to restrictions on his practice; and yet he had not been called at the inquest, at which the family had no lawyer to represent them. In Warren there had been charges of manslaughter and perverting the course of justice brought against prison officers, and a finding by the Prison and Probation Ombudsman of ‘individual and systemic failures of disturbing proportions’, yet the Coroner was declining to call an independent consultant psychiatrist who had prepared a report at the request of the family. 31. Both these decisions are clearly correct, but they do not assist in the present case. They do not support the Claimant’s bold contention that independent psychiatric evidence must be called in every case of suicide in prison where there may be a mental health issue. Each case must be determined on its own facts. To suggest otherwise would be to fetter the discretion of the coroner. It is long-established law and practice that the coroner has a wide discretion in deciding which witnesses to call (see Mack v HM Coroner for Birmingham [2011] Inquest LR 17; [2011] EWCA Civ 712 at paragraph 9; R (LePage) v HM Assistant Coroner for Inner South London [2012] Inquest LR 31; [2012] EWHC 1485 (Admin) at paragraphs 44–54). This includes expert witnesses (see R (Takoushis) v Inner North London Coroner [2006] 1 WLR 461 at paragraph 61) such as psychiatrists (see, for example, R (Warren) v HM Assistant Coroner for Northamptonshire [2008] EWHC 966 (Admin) at paragraph 41).

(xii) R (LePage) v HM Assistant Deputy Coroner for Inner South London [2012] EWHC 1485 (Admin) Keywords: Evidence, experts, police The deceased had died from acute cocaine toxicity having swallowed the drug before or at the time of her arrest by the police. At the resulting inquest, in which Article 2 was engaged, the coroner called several medical experts to comment on the quality of the deceased’s care while in the custody of the police and whether her restraint by the police contributed to her death. Having heard such evidence, the coroner did not leave to the jury issues relating to the police’s actions. The jury subsequently returned a short-form verdict of accidental death supplemented with a narrative. The claimants (the deceased’s parents) subsequently challenged the inquests on several grounds, including the failure to call an expert forensic pathologist, Dr James, whom they had instructed. The court rejected their application. In his judgment the Chief Coroner, with whom Owen J agreed, held that the evidence of the claimant’s expert would have added nothing to medical evidence that was already called by the coroner and that the coroner was only obliged to put circumstances to the jury if they were probably, not simply possibly, causative of death. However, notwithstanding the finding that the coroner acted lawfully, the Chief Coroner did observe that it would have been wiser to have called Dr James to allay the suspicion of deliberate wrongdoing in the circumstances of an Article 2 inquest. 44. In my judgment the coroner had a discretion whether to call Dr James and she exercised that discretion reasonably and fairly. She did not act Wednesbury unreasonably. As the decision in R (Lewis) v Mid and North Shropshire Coroner [2010] 1 WLR 1836 shows, she had no duty to call the evidence of Dr James, even if he had raised a real possibility (which he did not) of search and restraint being a contributing cause of death. Her failure to call Dr James was therefore not unlawful.

240 Peter Skelton QC 45. In Lewis the Court of Appeal held that the coroner has a power but not a duty to leave to the jury in a Middleton inquest circumstances which were possible but not probable causes of death. Sedley LJ was ‘unable to find a reason of principle for making it a duty’. Etherton LJ concluded that only matters which probably had a causal connection to death could form part of a verdict. There is therefore no requirement in a Middleton inquest to leave questions to a jury in respect of matters which possibly caused or contributed to the death. … 49. Although the coroner must of course investigate ‘fully, fairly and fearlessly’ (Jamieson at [26B]), she must also be allowed to ‘set the bounds of the inquiry’ (ibid). There are other decisions which emphasise this point robustly. For example, as Brooke LJ stated in R v Coroner for Lincolnshire, ex parte Hay, 19 February 1999, CO/2155/97 & CO/2210/98: ‘We are unwilling for our part, to fetter the discretion of a coroner by being at all prescriptive about the procedures he should adopt in order to achieve a full, fair and thorough hearing.’ 50. That applies to leaving verdicts to the jury: R v Inner South London Coroner, ex parte DouglasWilliams [1999] 1 All ER 344. It also applies to the calling of witnesses, including experts. As Sir Anthony Clarke MR stated in R (Takoushis) v Inner North London Coroner [2006] 1 WLR 461, 478, if an interested person wishes a coroner to call expert evidence, that person may put the substance of the evidence before the coroner ‘so that the coroner may be able to decide whether or not it is appropriate’. 51. It is for the coroner to call at the inquest ‘all persons who tender evidence as to the facts of the death … whom he considers it expedient to examine’: Section 11(2) of the Coroners Act 1988. It is for the coroner to decide how to adduce the necessary evidence as to death: McKerr v Armagh Coroner [1990] 1 WLR 649, 656. The coroner is not required to call every witness who might have relevant evidence, but sufficient witnesses to undertake a proper inquiry: R (Ahmed) v South and East Cumbria Coroner [2009] EWHC 1653 Admin, [35]. The coroner has a wide discretion on the calling of witnesses: Mack v HM Coroner for Birmingham [2011] EWCA Civ 712, in which the Court of Appeal considered a complaint by the family that the coroner had refused to call an important medical witness who had care of the deceased in the days before he died. Toulson LJ stated at [9]: ‘The coroner has a wide discretion—or perhaps more appropriately a wide area of judgment— whom it is expedient to call. The Court will only intervene if satisfied that the decision made was one which was not properly open to him on Wednesbury principles.’ … 59. In R (Goodson) v Bedfordshire and Luton Coroner [2006] 1 WLR 432 Richards J adopted a different approach. The question to be asked, he said, was less about the reasonableness of the exercise of the discretion and more about a judgment of whether more was required for Article 2 purposes. The complaint concerned the coroner’s failure to obtain certain independent expert evidence. At p.459 he said: ‘The matter therefore comes down to whether the coroner’s judgment that fuller investigation was not required in the circumstances was a lawful judgment. In the context of the sufficiency of an investigation under Article 2 it seems to me that the court, rather than simply asking whether the coroner’s judgment was reasonably open to him in the Wednesbury sense, must form its own judgment on whether more was required, in particular by way of independent expert evidence. In forming such a judgment, however, the court must take account of its own lack of medical expertise and must pay an appropriate degree of deference to the judgment of the coroner, who is more experienced in these matters and was closer to the actual evidence in the case.’

Evidence 241 60. Either way, whether in the evaluation of the exercise of the discretion or in the evaluation of the sufficiency of the Article 2 investigation, there can be but one conclusion in this case. The coroner did all that she needed to do to fulfil her duties and obligations. 61. Having said that, I would like to make this observation. The coroner might have been wiser to have called Dr James. His evidence may well have added little if anything to the inquiry into the death. But much time, effort, and expense might possibly have been avoided in this application for judicial review, let alone prolonged anxiety for the bereaved family. More importantly the coroner might have achieved one of the several purposes of a Middleton Article 2 investigation, as emphasised by Lord Bingham in Amin, namely that ‘suspicion of deliberate wrongdoing (if unjustified) is allayed’: R (Amin) v Secretary of State for the Home Department [2004] 1 AC 653.

(xiii) R (on the application of Duffy) v HM Deputy Coroner for Worcestershire [2013] EWHC 1654, (2013) 134 BMLR 86 Keywords: Evidence, experts, medical care The claimant was the father of a 14-month-old child who had died in hospital from the consequences of heart failure. At the inquest, the coroner heard evidence from an independent paediatric cardiologist who had no recent experience of paediatric intensive care and so could not assist on central issues of breach of duty or causation in respect of the child’s death. The child’s parents requested an adjournment so that evidence could be obtained from suitable expert in paediatric intensive care, critical care medicine and/or from a paediatric cardiologist who was in practice at the time of the child’s death. The coroner refused and entered a verdict of death as a result of natural causes. The claimant brought judicial review proceedings, arguing that the coroner’s decision not to adjourn the inquest and obtain appropriate expert evidence was fundamentally flawed. The High Court (Mr Justice Kenneth Parker) agreed, holding that the coroner’s decision was unreasonable and was at real risk of causing substantial injustice (paragraph 36).

(xiv) Markham v HM Coroner Greater London (Western District) [2013] EWHC 243 (Admin) Keywords: Evidence, experts The applicant was the father of a 21-year-old man who had unexpectedly collapsed and died. The coroner had obtained a report from a pathologist who was unable to determine the cause of death. Consequently, the coroner recorded the cause of death on the deceased’s death certificate as ‘unascertained’ and entered an inquest verdict of ‘unknown natural causes’. Following the inquest, the claimant had the deceased’s DNA tested and discovered that his sudden cardiac arrest had been caused by a genetic fault known as Long QT Syndrome. He also obtained a report from a consultant clinical geneticist, who confirmed that the deceased, but not his parents, was suffering from the genetic mutation and that in many people the condition remained undiagnosed. The claimant and the coroner then applied to amend the deceased’s death certificate and in order for this to take place the Divisional Court (Eady J and the Chief Coroner) readily granted the claimant’s application for a fresh inquest.

242 Peter Skelton QC 9. The coroner indicated to the General Registry Office that the cause of death, previously unascertained, was now known. Had she had the genetic information at the time of the inquest, she stated, the verdict would have been ‘natural causes’ and the cause of death would have been recorded as ‘Long QT Syndrome leading to cardiac arrhythmia’. 10. The General Register Office, however, was unable to make the requested alteration without a fresh inquest, because it would be an alteration of substance relating to the cause of death: see section 29(4) of the Births and Deaths Registration Act 1953. Hence this application today, brought with the Attorney General’s consent which was given on 18 September 2012. The only way forward is for a fresh inquest to be held: see for example Attorney General v Harte (1987) 151 JP 819. 11. Having read the new medical evidence and the genetic testing reports we are satisfied that it is necessary and desirable in the interests of justice, under section 13(1)(b) of the Coroners Act 1988, that another inquest should be held. Thanks to the applicant’s persistence, the mystery of his son’s death has been solved. The fresh evidence allows us therefore, as we now so order, to quash the inquest and the inquisition and to order another inquest to be held. We leave it to the local coroner to decide who shall conduct the inquest, but we hope it shall be soon; the applicant has waited long enough for the record to be put straight.

(xv) Thompson v HM Assistant Coroner for County Durham and Darlington [2015] EWHC 1781 (Admin) Keywords: Evidence, experts The applicant was the brother of Kristian Thompson who died while detained in h ospital. The inquest resulted in an open verdict and the cause of death was ‘unascertained’. Mr Thompson then sought a fresh inquest, pursuant to section 13 of the Coroners Act 1984, arguing that there had been failures of inquiry in respect of the medical records and the expert evidence. The Divisional Court, Burnett LJ and the Chief Coroner, agreed and ordered a new inquest. 9. The applicant submits, using the words of section 13 of the Coroners Act 1998, that there was ‘insufficiency of inquiry’ at the inquest. He makes two points. First, the coroner failed to obtain a comprehensive inspection and review of Kristian’s medical history, particularly since the assault, to see whether he had suffered any previous seizure or there were any indications consistent with epilepsy. And secondly, the coroner failed to obtain and scrutinise expert evidence on two features of Kristian’s recent history at the Tavener Unit which could have related to epilepsy. 10. These two features were Kristian’s recurrent nocturnal enuresis and his medication. The questions the applicant wants answered is whether the enuresis was indicative of epilepsy and whether the administration of sodium valproate and clonazepam could have masked or prevented obvious seizure activity until the dosage was reduced two months or so before Kristian’s death and at a time shortly before incontinence at night commenced. 11. The applicant contends that these questions could not be answered at the inquest, at the very least sufficiently explored, because [the pathologist] Dr Egan, as he frankly admitted, was not a clinician and did not have the relevant expertise and because Mr du Plessis, although he had given some consideration to these issues, was not called to give evidence. 12. Dr Egan accepted in evidence that he would alter his opinion on the cause of death if an expert clinician could diagnose epilepsy at any time. But in the absence of any evidence to his knowledge of a history of epilepsy he himself, as a pathologist, could not make that finding.

Evidence 243 13. It is our conclusion that there should be a fresh inquest to examine these matters. In the light of that decision we do not propose to go further into the medical detail. We have read the reports of Dr Egan and Mr du Plessis (two each) and the transcript of the evidence given at the inquest in the light of the applicant’s submissions. Having done so we agree with the applicant’s submissions on this point. We cannot say what the outcome of the fresh inquest will be or whether the medical cause of death will be ascertained. That will be a matter for the senior coroner, with or without the jury. We can, however, say that these matters are sufficiently important that they should be explored afresh with appropriate witnesses.

(b) Experts in Article 2 Inquests

(i) R (Wright) v Secretary of State for the Home Department [2001] EWHC (Admin) 520, [2001] Inquest LR 66 Keywords: Evidence, experts, Article 2, prisons, medical care Paul Wright died from a severe asthma attack while imprisoned at Leeds Prison on 7 November 1996. Shortly before his death, Mr Wright had told his cellmate, Vincent Moughton, that he needed a nebuliser. Mr Moughton then pressed an alarm button and after a period of time a prison officer and then a nurse arrived, by which time Mr Wright was not breathing. An ambulance was called. However, attempts at resuscitation failed. At the inquest into his death, there was no suggestion that the medical treatment he had received in prison for his asthma, including that from Dr Singh a prison doctor, was inadequate. The jury returned a verdict of death by natural causes. Following the inquest, Mr Wright’s family (the claimants) remained concerned about the circumstances of his death and initiated civil proceedings against the defendant, who admitted liability. The claimants also brought judicial review proceedings against the defendant in respect of his alleged failure to conduct an independent public investigation into the death and his refusal to disclose the expert medical report which had informed the admission of liability. The defendant disclosed a synopsis of the medical report, which was critical of Mr Wright’s treatment. The claimants then sought a mandatory order for the defendant to initiate an independent investigation into Mr Wright’s death and for damages for breaches of Article 2, 3 and 8 of the Convention. In his judgment, Jackson J held that he did not have to decide if the prison service breached Mr Wright’s Article 2 or 3 rights, as his death was before the Human Rights Act 1998 came into force. However, he agreed that such breaches were arguable. He went on to find that the inquest did not constitute an effective investigation and that one of the reasons for this was the lack of independent expert evidence as to the adequacy of Mr Wright’s treatment. He ordered the defendant to set up an independent investigation into his death. 60. I deal first with the inquest. In my view, the inquest did not constitute an effective official investigation. I reach this conclusion for five reasons. 1. Vincent Moughton was not called as a witness, although he was available and willing to attend. The jury were directed to disregard his written statement. 2. There was no consideration at the inquest of the shortcomings in the medical treatment given to Mr. Wright. No independent expert reviewed the adequacy of this treatment.

244 Peter Skelton QC 3. The restrictions under which Dr. Singh was practising were not disclosed. There was no investigation as to whether Dr. Singh played an excessive and unsupervised role in Mr. Wright’s treatment. 4. The claimants were not represented at the inquest. Although the second claimant spoke up for the family at the inquest and asked some questions, she did not have the requisite advocacy skills and there was no proper exploration of the issues which quite properly concerned the family. 5. By reason of the factors mentioned in reasons 1 to 4, the inquest did not comply with the requirements enumerated by the European Court of Human Rights in Jordan v. United Kingdom. … 67. In the circumstances of this case, the claimants are entitled to a remedy pursuant to sections 6, 7 and 8 of the Human Rights Act 1998 in respect of defendant’s continuing breach of the procedural obligations under articles 2 and 3. The proper remedy is an order that the defendant do set up an independent investigation into the circumstances of Mr. Wright’s death. As counsel for both parties accept, the order which this court makes should not be unduly detailed or prescriptive. The precise form of the investigation should be left to the defendant’s discretion. 68. I am acutely conscious that any form of inquiry which the Secretary of State may set up will consume costs and resources, which might otherwise be used directly in the operation of the prison medical service. I am also conscious of the duplication of costs for the defendant and of stress for the claimants, which arises from first having an inquest and then having an independent investigation into the circumstances of Mr. Wright’s death. If this unsatisfactory situation is to be avoided in the future, steps should be taken to ensure that, in every case where Article 2 of the Convention may be engaged, the coroner’s inquest complies with the procedural obligations arising under that article.

(ii) R (Stanley) v HM Coroner for Inner North London [2003] EWHC 1180 (Admin), [2003] Inquest LR 38 Keywords: Evidence, experts, police Article 2 Henry Stanley was shot dead by two firearms officers in September 1999. He was mistakenly believed to be carrying a sawn-off shotgun; in fact, it was a table leg wrapped in plastic that had just been repaired. The inquest was held in June 2002 with a jury. The family and police both instructed firearms experts who provided reports and attended the inquest. However, the coroner refused to call either, relying instead of the evidence of the commanding officer of the two officers who had killed Stanley. The jury recorded an open verdict The deceased’s wife judicially reviewed the coroner on a number of grounds, including the failure to call independent expert evidence. While the parties to the judicial review agreed to an order that the verdict be quashed and a new inquest be conducted with a different coroner, Silber J was asked to give reasons for the order so as to prevent a repeat of such a shambolic inquest. As to the issue of expert evidence, he concluded: 44. At the June 2002 inquest, the Coroner said that Mr Stanley had turned towards them and that he had pointed an object in a blue plastic bag directly at Police Constable Fagan, which they believed to be a shotgun but which, in fact, was a table leg. Two of the fundamental issues raised at the inquest related to, first, whether Mr Stanley was facing or turned away from the officers and,

Evidence 245 second, whether Mr Stanley was holding the chair leg in such a manner that it could have looked as if he was about to fire a shotgun at the officers. Another crucial issue was to consider how the officers conducted the operation and whether the actual shooting was justified. 45. Two of the experts, who the Coroner could have called but were not called, dealt with that issue, as their reports indicate. Thus, Mr Greenwood [the family’s expert] concluded that the actions of the officers ‘fell far below those that one would expect from well-trained and properly commanded police officers’. Mr Bailey [the individual proposed as the coroner’s expert] thought that the actions of the officers were ‘negligent’, but he stated that the term grossly negligent ‘should be considered by legally trained professionals due to its significance in the law’. This evidence could have been relevant, for example, to the issue of whether the jury could return a verdict which could lead to a charge of gross negligence manslaughter (see R v Adomoko [1995] 1 AC 171). So I conclude that these two experts would have been ready, able and willing to give evidence relevant to the issues to be considered by the jury, but, unlike the evidence the Coroner actually called, that evidence would have been independent of the police force. 46. At the forefront of Mr Owen’s submissions is the contention that independence is an important feature in an effective investigation for the purposes of Article 2 of the Convention. He says that this required the Coroner not merely to rely on law enforcement agencies to investigate themselves, but that there should be some form of independent investigation. Indeed, the Strasbourg court has made it clear that independence is essential for the preservation of confidence in the administration of justice (see Kilic v Turkey [1998] EHRR 23rd October 2000 and Gulec v Turkey 28 EHRR 121. 47. This approach to the need for independence has been followed in this court. Thus, in R (Wright and Bennett) v Secretary of State (which I have already cited) Jackson J found that the sole reliance by a coroner on the Chief Medical Officer of the prison where a death took place, without recourse to further independent expertise, did not amount to a sufficiently independent inquiry. By the same token, in R (Nicholls) v Her Majesty’s Coroner for Liverpool [2001] EWHC 922 the refusal of the coroner to call any other medical evidence, save for a Forensic Medical Examiner whose conduct was being impugned, was held not to constitute a sufficient inquiry. The decision of the Coroner only to call the superior officer whose conduct is being challenged failed to meet the requirements of Lord Woolf CJ in Amin that the investigation will be ‘conducted independently for all to see’. 48. In any event, the evidence the experts would have given was relevant as part of the ‘investigation of the utmost rigour’ which, as I have explained, was the requirement specified by Lord Woolf CJ in Amin as being necessary in the face of ‘a credible accusation of murder or manslaughter by state agents’. The decision of the Coroner not to call these further experts who could have given relevant evidence failed to comply with that requirement, and that is an additional reason why the decision of the Coroner at the June 2002 inquest was flawed. 49. Mr Egan does not now dispute that if the Coroner was to hear Mr Greenwood, he should also have heard Mr Bailey and Mr Waldron [the Metropolitan Police expert]. Therefore the complaints on this expert evidence issue succeeds.

The judge concluded by providing a number of ‘lessons learned’ from this judicial review. As to expert evidence, he said at paragraph 52: (4) the Coroner should, in the absence of the jury, hear submissions on the relevance of any expert evidence that a party wishes to have called before reaching his decision having borne in mind those submissions and the aims and requirements of Article 2 as explained by Lord Woolf CJ in Amin.

246 Peter Skelton QC

(iii) R (Warren) v HM Assistant Coroner for Northamptonshire [2008] EWHC 96 (Admin), [2008] Inquest LR 65 Keywords: Evidence, experts, Article 2, prisons The claimant, the mother of deceased, challenged the refusal by the coroner to call a consultant psychiatrist, whom she had instructed, to give evidence. The deceased committed suicide in the segregation unit of Rye Hill Prison. A nurse with experience of work in prisons prepared a report on the medical and mental health issues leading up to the deceased’s death in the context of the police investigation which took place prior to the inquest. This report was very critical of the suicide and self-harm policy at Rye Hill at the time and of certain individuals. It was made available to the Prisons and Probations Ombudsman, who concluded that the circumstances surrounding the deceased’s death were among the most disturbing that he had come across in about 300 investigated cases of suicide. The claimant instructed a consultant psychiatrist but the coroner decided not to call him to give evidence. In summary, the coroner’s position was: (1) that all relevant medical and health care issues were dealt adequately by the nurse’s report and other evidence; (2) the care which the deceased may have received in the community was irrelevant; and (3) it would be inappropriate for the consultant psychiatrist to give expert evidence concerned the role of a GP in the prison service. Foskett J concluded that independent expert evidence, both at consultant and general practitioner level, might be evidence that would help the jury answer the questions said to be relevant in Middleton, stating at paragraph 39: Given that what is to be expected of the systems of health care within a prison and of the individuals who provide it is the NHS standard available to the general public, then evidence of what that standard is is, in my view, relevant. It would help to inform the issue of the adequacy or otherwise of the systems in place and of the way those operating systems have acted…

The debate in this case had focused almost exclusively on whether the particular consultant psychiatrist instructed by the claimant should provide that evidence. Foskett J stated that a coroner has a wide discretion about how proceedings are conducted and the coroner in this case was entitled to refuse to call evidence from this consultant psychiatrist. Foskett J was not prepared to allow the application. However, he made it clear that an inquest without the evidence of an independent consultant psychiatrist, and an independent GP, would not be compliant with Article 2 ECHR, although it did not follow that such evidence will be required in every case of a suicide in prison.

(iv) Stoyanovi v Bulgaria, 9 November 2010, App no 42980/04 See Chapter 22 on military personnel. In an investigation into a paratrooper’s death following a routine parachute exercise, the ECtHR held that the internal investigating commission ‘possessed the necessary expertise and impartiality, that its investigation was comprehensive and that its conclusions were adequate, tenable and convincing’ (paragraph 64).

Evidence 247

(v) Pereira Henriques v Luxembourg European Court of Human Rights, 9 May 2006, App no 60255/0032 The ECtHR held that the investigation into the death of a Portuguese national at work in Luxembourg was not ‘effective’ for the purposes of Article 2 as the state prosecutor’s office had declined to obtain an expert’s report and the deceased’s family had been unable to bring civil proceedings in respect of the death.

32

See Chapter 24 on deaths in the workplace.

248

13 Anonymity, Protective Measures and Public Interest Immunity MATTHEW HILL AND SIR NEIL GARNHAM

I. Overview It is customary for judgments, articles and speeches discussing open justice to begin by quoting historic authorities that emphasise the importance and longevity of the principle. Modern cases cite Scott v Scott from 1913.1 Scott v Scott referred back to a scholarly treatise from 1730.2 Yet while the general principle has been steadfast and constant, so has the tension to which it gives rise: what happens when the fundamental principle of open justice is inconsistent with the fundamental principle to do justice? Which should yield, and who should decide?3 In the modern coronial context, the present position is tolerably clear from the Coroners (Inquests) Rules 2013.4 Inquest hearings will be held in open court unless the coroner considers that it is in the interests of national security to exclude the public. The public can also be excluded from pre-inquests hearings if it is in the interests of justice to do so. In both cases, ‘the public’ does not include interested persons, who can therefore remain.5 However, the coroner does have the power—and in some circumstances, the duty—to grant protective measures for witnesses so as to prevent their identities, appearance or personal details from being disclosed either to interested persons or the wider world. Organisations and agencies may also seek to prevent materials from being disclosed through the use of public interest immunity certificates. Which body should determine such applications under the Coroners and Justice Act 2009 (CJA 2009), the Coroner or the High Court, is not entirely clear. What is plain, however, is that an inquest can proceed while certain relevant information is withheld.

1

Scott v Scott [1913] AC 417 (HL). ibid 441, per the Earl of Halsbury. 3 See, eg, the discussion in ibid 437–38 and 442. 4 Coroners (Inquests) Rules 2013, SI 2013/1616, r 11. See also Coroners and Justice Act 2009 (CJA 2009), s 45(a). 5 R (Secretary of State for the Home Department) v Assistant Deputy Coroner for Inner West London (the 7/7 Bombings Inquests) [2010] EWHC 3098 (Admin), [2011] 1 WLR 2564, [2010] Inquest LR 211. Although the case was decided on the Coroners Rules 1984, it is submitted that it remains good law. 2

250 Matthew Hill and Sir Neil Garnham

An alternative course—adopted by coroners who consider that a fair and sufficient hearing is not possible given the limitations on the evidence that can be presented to them—is to adjourn the inquests and seek ministerial approval to establish a public inquiry under the Inquiries Act 2005, which provides for greater flexibility in respect of ‘closed’ evidence (see Chapter 16 on inquest vs inquiry).6 The legislation, guidance and cases cited below consider, first, the principles governing the law on granting anonymity and special measures to witnesses in inquisitorial proceedings, and second, the distinct but related issue of public interest immunity. It is written against a backdrop of repeated attempts by the executive to introduce legislation allowing for ‘closed inquests’ from which both the public and interested persons are excluded. Such attempts have so far been resisted. Whether that continues to be the case will be a matter for future editions.

II. Legislation and Other Sources Human Rights Act 1998 (HRA 1998) 6. Acts of public authorities (1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right …

HRA 1998, Schedule 1, Part 1: The European Convention on Human Rights Article 2 Right to life 1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection. …

6 Two examples of where this has been done are the inquests and subsequent public inquiries into the deaths of Azelle Rodney and Alexander Litvinenko.

Anonymity, Protective Measures and Public Interest Immunity 251 Article 8 Right to respect for private and family life 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. … Article 10 Freedom of expression 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers… 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Coroners and Justice Act 2009 (CJA 2009) 45. Coroners Rules (1) Rules may be made in accordance with Part 1 of Schedule 1 to the Constitutional Reform Act 2005 (c. 4)—(a) for regulating the practice and procedure at or in connection with inquests … (2) Coroners rules may make— … (e) provision for a senior coroner to have power to give a direction, in proceedings at an inquest, allowing or requiring a name or other matter not to be disclosed except to persons specified in the direction; (3) Coroners rules may make provision conferring power on a senior coroner or the Coroner for Treasure— … (b) to give a direction excluding specified persons from an inquest during the giving of evidence by a witness under the age of 18, if the coroner is of the opinion that doing so would be likely to improve the quality of the witness’s evidence. … Schedule 5: Powers of Coroners 1. (2) A senior coroner who is conducting an investigation … may by notice require a person, within such period as the senior coroner thinks reasonable— … (b) to produce any documents in the custody or under the control of the person which relate to a matter that is relevant to the investigation … 1. (4) A claim by a person that— … (b) it is not reasonable in all the circumstances to require him or her to comply with such a notice, is to be determined by the senior coroner, who may revoke or vary the notice on that ground.

252 Matthew Hill and Sir Neil Garnham 1. (5) In deciding whether to revoke or vary a notice … the senior coroner must consider the public interest in the information in question being obtained for the purposes of the inquest or investigation, having regard to the likely importance of the information. 2. (1) A person may not be required to give, produce or provide any evidence or document under paragraph 1 if— (a) he or she could not be required to do so in civil proceedings in a court in England and Wales, or (b) the requirement would be incompatible with a Community obligation. 2. (2) The rules of law under which evidence of documents are permitted or required to be withheld on grounds of public interest immunity apply in relation to an investigation or inquest under this Part as they apply in relation to civil proceedings in England and Wales.

The Coroners (Inquests) Rules 2013 (the Inquests Rules 2013) 11. Inquest hearings to be held in public (1) A coroner must open an inquest in public. … (3) An inquest hearing and any pre-inquest hearing must be held in public unless paragraph (4) or (5) applies. (4) A coroner may direct that the public be excluded from an inquest hearing, or any part of an inquest hearing if the coroner considers it would be in the interests of national security to do so. (5) A coroner may direct that the public be excluded from a pre-inquest review hearing if the coroner considers it would be in the interests of justice or national security to do so. … 13. Disclosure of documents at the request of an interested person (1) Subject to rule 15, where an interested person asks for disclosure of a document held by the coroner, the coroner must provide that document or a copy of that document, or make the document available for inspection by that person as soon as is reasonably practicable… 14. Managing Disclosure A coroner may— … (a) disclose a redacted version of all or part of a document; or (b) make a document available for inspection at a particular time and place. 15. Restrictions on disclosure A coroner may refuse to provide a document or a copy of a document requested under rule 13 where— (a) there is a statutory or legal prohibition on disclosure … (b) the request is unreasonable … …

Anonymity, Protective Measures and Public Interest Immunity 253 17. Evidence by video link (1) A coroner may direct that a witness may give evidence at an inquest hearing through a live video link. (2) A direction may not be given under paragraph (1) unless the coroner determines that giving evidence in the way proposed would improve the quality of the evidence given by the witness or allow the inquest to proceed more expediently. (3) Before giving a direction under paragraph (1), the coroner must consider all the circumstances of the case, including in particular— (a) any views expressed by the witness or any interested person; (b) whether it would be in the interests of justice or national security to give evidence by video link; and (c) whether in the opinion of the coroner, giving evidence by video link would impede the effectiveness of the questioning of the witness. (4) A direction may be given under paragraph (1)— (a) on an application by the witness, or in the case of a child witness the parent or legal guardian of that witness; (b) on an application by an interested person; or (c) on the coroner’s own initiative. 18. Evidence given from behind a screen (1) A coroner may direct that a witness may give evidence at an inquest hearing from behind a screen. (2) A direction may not be given under paragraph (1) unless the coroner determines that giving evidence in the way proposed would be likely to improve the quality of the evidence given by the witness or allow the inquest to proceed more expediently. (3) In making that determination, the coroner must consider all the circumstances of the case, including in particular— (a) any views expressed by the witness or an interested person; (b) whether it would be in the interests of justice or national security to allow evidence to be given from behind a screen; and (c) whether giving evidence from behind a screen would impede the effectiveness of the questioning of the witness by an interested person or a representative of the interested person. (4) A direction may be given under paragraph (1)— (a) on the application by the witness, or in the case of a child witness the parent or legal guardian of that witness; (b) on an application of an interested person; or (c) on the coroner’s own initiative.

Guidance Guidance No 4, ‘Recordings’, 16 July 2013 Coroners Law Sheets, ‘The Worcestershire Case’, 31 January 2014

254 Matthew Hill and Sir Neil Garnham

III. Cases There are three routes open to a witness seeking protective measures at an inquest. The first is to argue that the coroner, as a public body bound by the Human Rights Act 1998 (HRA 1998), has a duty to provide the protection sought under the positive obligation of Article 2 (on which, see Chapter 7). The second is to argue that even if the threshold for Article 2 is not met, there is still a duty under the common law to provide the relevant measure. The third is to argue that a failure to grant the measure would constitute an unnecessary and/ or disproportionate interference with the applicant’s Article 8 rights to private and family life. Although it is convenient in terms of legal analysis to separate the common law and Article 8 routes, recent authority supports the proposition that the approach of the court to them is, in essence, the same.7 The cases generally concern anonymity, but the relevant principles are applicable to other special measures (although rules 18 and 19 of the Inquests Rules 2013 may also be applicable in such instances). For the sake of brevity, ‘anonymity’ is regularly used as a convenient shorthand.

A. Article 2 and Anonymity for Witnesses (i) In re Officer L and others [2007] UKHL 36, [2007] 1 WLR 2135, [2007] Inquest LR 214 Keywords: Article 2 (procedural/substantive obligations), human rights, inquiry, police, protective measures, witnesses The facts of this case are set out in Chapter 7 on Article 2. For the purposes of this chapter, the salient features are that a number of potential witnesses to a public inquiry sought anonymity on the grounds that there was a risk to their lives from paramilitary organisations if they were identified. The applications were made on the basis of both Article 2 and the common law. In respect of Article 2, it was argued that the operational, Osman duty was engaged such that the inquiry had to take reasonable steps (such as granting a nonymity) to avert a real and immediate risk to the lives of the witnesses. The chairman refused all but one of the applications. The Northern Ireland High Court quashed this decision on the grounds that the chairman had misdirected himself in law. The Northern Ireland Court of Appeal agreed, finding that the chairman was wrong to hold that it was necessary to find an increased risk to the applicants were they to give evidence without anonymity. The chairman’s appeal to the House of Lords was allowed. Lord Carswell gave the only speech, in which it was held that the inquiry had properly approached the issue under Article 2. He also discussed the threshold that an applicant had to cross in order to succeed in establishing the Osman test of a ‘real and immediate’ risk to life. 20. Two matters have become clear in the … development of the [Osman line of] case-law. First, this positive obligation arises only when the risk is ‘real and immediate’. The wording of this test

7

JX MX v Dartford and Gravesham NHS Trust [2015] EWCA Civ 96, [2015] EMLR 14, para 17.

Anonymity, Protective Measures and Public Interest Immunity 255 has been the subject of some critical discussion, but its meaning has been aptly summarised in Northern Ireland by Weatherup J in Re W’s Application [2004] NIQB 67, where he said that: ‘a real risk is one that is objectively verified and an immediate risk is one that is present and continuing.’ It is in my opinion clear that the criterion is and should be one that is not readily satisfied: in other words, the threshold is high. … In my opinion the standard is constant and not variable with the type of act in contemplation, and is not easily reached. Moreover, the requirement that the fear has to be real means that it must be objectively well-founded … in assessing the existence of a real and immediate risk for the purposes of article 2 the issue does not depend on the subjective concerns of the applicant, but on the reality of the existence of the risk. As the Court of Appeal indicated in para 33 of its judgment, the existence of subjective fears is not a prerequisite to the finding that there is a risk which satisfies the test of article 2, and, conversely, if a risk to life exists, article 2 will be engaged even if the person affected robustly disclaims having any subjective fears. That is not to say that the existence of a subjective fear is evidentially irrelevant, for it may be a pointer towards the existence of a real and immediate risk, but in the context of article 2 it is no more than evidence. … 23. The question posed by the Inquiry when considering article 2 was whether the pre-existing risk of death to an applicant for anonymity would be materially increased if he or she were required to give evidence without being afforded anonymity. Although it did not specifically so state in its ruling, it is inherent in all its discussion of the article 2 issue that the Inquiry did not consider that the pre-existing risk to any of the respondents or other applicants was sufficiently severe to reach the article 2 level of a real and immediate risk … 24. In my opinion that was a correct test to apply. The Court of Appeal considered that it was an incorrect test. At para 42 of its judgment it commenced by posing the question ‘will the requirement to give evidence give rise to a real risk to life?’ I would regard that as an appropriate question to ask. It then went on to express its conclusion, however, that the proper question to ask is a simple one ‘Is there a real risk?’ rather than ‘Is there an increase in the risk?’ I cannot regard that as correct. If there is not a real and immediate risk to the life of an applicant before he or she gives evidence, then ex hypothesi to reach that threshold there must be some increase in risk occasioned by giving evidence. Only if that is the case can the requirement to give evidence ‘give rise to’ a real risk to life. 25. The tribunal accordingly approached the matter properly under article 2 in seeking to ascertain whether giving evidence would give rise to a materially increased risk to life. Having found that it did not, it did not require then to go on to consider whether such an increased risk, if found to exist, would come up to the threshold required of a real and immediate risk to life.

(ii) Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2, [2012] 2 AC 72, [2012] 2 WLR 381 Keywords: Article 2 (procedural/substantive obligations), human rights, medical negligence, mental health, protective measures, witnesses The facts of this case are set out in Chapter 7. For the purposes of this chapter, the interest in the Supreme Court’s decision lies in the assessment of what constitutes a ‘real and immediate’ risk to life such as to engage the operational, Osman duty. Lord Dyson considered the existing case law, including Lord Carswell’s speech in re. Officer L. 37. I accept that it is more difficult to establish a breach of the operational duty than mere negligence. This is not least because, in order to prove negligence, it is sufficient to show that the risk of damage was reasonably foreseeable; it is not necessary to show that the risk was real and immediate. But to say that the test is a high one or more stringent than the test for negligence does not

256 Matthew Hill and Sir Neil Garnham shed light on the meaning of ‘real and immediate’ or on the question whether there was a real and immediate risk on the facts of any particular case. 38. It seems to me that the courts below were clearly right to say that the risk of Melanie’s suicide was ‘real’ in this case. On the evidence of Dr Caplan [the defendant’s expert psychiatrist], it was a substantial or significant risk and not a remote or fanciful one. Dr Caplan and Dr Britto (the claimants’ expert psychiatrist) agreed that all ordinarily competent and responsible psychiatrists would have regarded Melanie as being in need of protection against the risk of suicide. The risk was real enough for them to be of that opinion. I do not accept [Counsel for the Defendant] Miss [Monica] Carss-Frisk’s submission that there had to be a ‘likelihood or fairly high degree of risk’. I have seen no support for this test in the Strasbourg jurisprudence. 39. As for whether the risk was ‘immediate’, Miss Carss-Frisk submits that the Court of Appeal failed to take into account the fact that an ‘immediate’ risk must be imminent. She derives the word ‘imminent’ from what Lord Hope said in Van Colle v Chief Constable of the Hertfordshire Police [2009] AC 225, para 66. In the case of In re Officer L [2007] 1 WLR 2135, para 20, Lord Carswell stated that an apt summary of the meaning of an ‘immediate’ risk is one that is ‘present and continuing’. In my view, one must guard against the dangers of using other words to explain the meaning of an ordinary word like ‘immediate’. But I think that the phrase ‘present and continuing’ captures the essence of its meaning. The idea is to focus on a risk which is present at the time of the alleged breach of duty and not a risk that will arise at some time in the future. 40. I think that this approach is supported by some of the Strasbourg jurisprudence … [Opuz v Turkey (2010) 50 EHRR 695, para 134 and Renolde v France (2009) 48 EHRR 969 are cited] 41. In my view, the Court of Appeal were right to say that the risk of suicide in the present case was immediate when Melanie was allowed home on 19 April 2005. There was a real risk that she would take her life during the two day period of home leave. That risk existed when she left the hospital and it continued (and increased) during the two day period. That was sufficient to make the risk present and continuing and, therefore, immediate. The judge gave no reasons for reaching the opposite conclusion.

(iii) In the matter of an application by Officers C, D, H and R [2012] NICA 47, [2013] NI 221 Keywords: Article 2 (procedural/substantive obligations), human rights, inquest hearing, police, protective measures, witnesses The facts of this case are set out in Chapter 7. In short, it concerned a much delayed inquest into the death of Patrick Jordan, who was shot by a police officer in Belfast in 1992. A number of police officers applied to give evidence anonymously and/or to be screened, relying on both the common law and Article 2. The coroner allowed some applications and refused others. Judicial review proceedings were launched both by the deceased’s father, in respect of those applications that had been granted, and the unsuccessful officers in respect of those that had not. The Northern Ireland Court of Appeal rejected the father’s application, but found for the unsuccessful applicants. The coroner’s decision to refuse anonymity was quashed and the applications reverted to him to consider in light of the Court’s judgment. Two features are of particular interest. The first is that the case post-dates Rabone and follows Lord Dyson’s approach by returning to the words ‘real and immediate risk’, shorn of judicial elaboration. Second, the reasoning of Morgan LCJ in particular is difficult to reconcile with the

Anonymity, Protective Measures and Public Interest Immunity 257

approach taken by Lord Carswell in Re Officer L in respect of the need for an increased risk arising due to a police officer giving evidence.8 Taken together they suggest a willingness by the courts to employ a lower threshold for anonymity than was previously the case, albeit in the distinctive context of risks to police officers in Northern Ireland. Morgan LCJ stated: 24. The issue in this case is whether the well-defined circumstances referred to in Osman apply to serving and retired police officers who are called to give evidence in this inquest which is a noncriminal, inquisitorial, investigative proceeding such as that considered by the House of Lords in Officer L. I accept that the positive operational duty does not arise where the risk to which the witness is exposed is no higher than the risk which is inherent in either carrying out his duties as a police officer or being retired from that office. Such risks do, of course, give rise to the legislative and administrative obligations discussed earlier. I do not accept, however, that the risk to a police officer in Northern Ireland arising from a threat to his life by well organised and resourced terrorists is inherent in the duties which such an officer is required to perform. The fact that a terrorist group chooses to target and attack a particular sector of public servants is a threat which is separate and distinct from the risks associated with the duties of a police officer. Where, therefore, there is a real and immediate risk to the life of a witness beyond the inherent risk emanating from the criminal acts of a third party of which the state is aware or ought to be aware I consider that the positive operational duty is engaged. 25. Even if I was wrong about the nature of the inherent risks in carrying out duty as a police officer I consider that the risks associated with giving evidence in this inquest are not on any view part of the risks inherent in carrying out police duties in Northern Ireland or being retired from such duties. This inquest is part of the method by which the State is addressing a legacy of communal violence which was at its height many years ago as well as addressing the particular interests of the next of kin. The events with which the inquest is concerned took place 20 years ago. These are exceptional circumstances unparalleled in any other part of the United Kingdom. That exceptionality lifts these proceedings and the risks to officers associated with them out of the ordinary inherent risks of office. 26. In a passage in the opinion of Lord Carswell in Re Officer L he said that the criterion of real and immediate risk described in Osman had a high threshold and was not easily satisfied. To deduce from this passage that there is some high threshold of risk which has to be satisfied would, as Lord Hope said in Van Colle, place a gloss on the test described in Osman and in any event the observation does not help with an understanding of the real and immediate risk test. As the cases reviewed by Girvan LJ demonstrate if there is a risk to life from a well organised and resourced terrorist group which, objectively verified, is neither fanciful nor negligible that is a real risk for the purpose of the Osman test. In Officer L the Inquiry asked whether there was a material increase in risk as a result of the police officers giving evidence. Although there is a difference in the way the question is posed I consider that these tests are in substance the same. 27. What Osman and Van Colle establish, however, is that there are very limited circumstances in which it will be possible to conclude that the authorities knew or ought to have known of a risk to life. In that sense the test has a high threshold and is not easily satisfied. In Northern Ireland there is, however, a particular context. Police officers have been subject to threats, targeting and attacks by well organised and resourced terrorist organisations using lethal force for many years. It is hardly surprising, therefore, that where the threat emanates from such a group the Osman test should be more frequently satisfied. 8

See in particular paras 24–25 of Morgan LCJ’s ruling, and para 34 of Girvan LJ’s ruling.

258 Matthew Hill and Sir Neil Garnham

Girvan LJ: 45. If Re Officer L were to be construed as authority for the proposition that the threshold for the engagement of the article 2 operative duty is ‘high’ or ‘not easily reached’ such a test of itself would not provide particularly clear guidance and would open the door to the kind of arguments which have been presented in this case. But as Lord Hope points out in Van Colle and as Lord Dyson confirms in Rabone Lord Carswell’s remarks in L cannot be treated as a gloss on what Strasbourg actually meant by the phrase. They cannot be construed as stating the definitive test of what constitutes a real and immediate risk. The graduated response to risk of which Lady Hale speaks [in Rabone] takes account of the nature and degree of the risk. A very high risk (for example where a person has received a clear and definite death threat) will call for a heightened and different response from the state authorities compared to a more generalised threat (for example where the individual is only one of a large group of people who might be affected by terrorist actions). The one situation will call for a quite different response from the other. In the latter situation it may be that no particular response is called for other than the ordinary enforcement of the criminal law and ordinary policing. The context of the risk will be of central importance. What article 2 in its operative duty context requires is for the relevant authority to think through the implications of the risk which is ex hypothesi neither fanciful nor trivial so as to decide, what if anything should be done in the light of that risk. 46. In the context of the officer’s refused anonymity in screening the coroner proceeded on the basis that the risk was not at a sufficient level to engage the need for positive action under article 2. However, in each case it was recognised that there was a real possibility of the officer’s personal security being undermined. This would depend on the nature of the evidence, how this would be examined in the course of the inquest and whether or not it was considered controversial. Those are all matters which would emerge over a period of time. The officers were already within the level of moderate threat. If they gave evidence without the benefit of anonymity/screening there was a possibility of a rise within the moderate band or beyond. Against that fluid and unpredictable background and in the context of an on-going terrorist campaign in which police officers very much remain as higher risk targets compared to the general population the evidence points in the words of Soering to substantial grounds for believing that they faced real risks of a murderous attack.9 The risk could not be dismissed as fanciful, trivial or the product of a fevered imagination. What the evidence before the coroner showed is that the relevant officers were at real risk of terrorist attack. The state authorities know that the evidence, if given openly, could expose the witnesses to an increased risk, that that increase in risk could be significant and that the incalculable extent of that increase depended on what the witness might say in the course of the evidence, how controversial his evidence might be perceived to be and how he might be questioned in the course of the investigation. Arrangements for anonymity and screening will reduce and may well remove the risk of the increased chances of a terrorist attack. These factors point to the conclusion that the coroner was in error in concluding that the need for action under article 2 did not arise. Since the need for operational action under article 2 was in play the coroner in acting as public authority is required to address the issue of what proportionate response is required in the circumstances.

Other Cases Re W’s Application [2004] NIQB 67—much cited, succinct definition of what constitutes a real and immediate risk. See Chapter 7.

9

Soering v UK (1989) 11 EHRR 439.

Anonymity, Protective Measures and Public Interest Immunity 259

R(A) v HM Coroner for Inner South London [2004] EWCA Civ 1439, [2004] Inquest LR 81—coronial application of pre-Rabone Article 2 case law regarding anonymity in the context of armed police officers giving evidence to an inquest. Van Colle v Chief Constable of the Hertfordshire Police [2008] UKHL 50, [2009] 1 AC 225, [2008] Inquest LR 176—authority on the threshold for the Osman test, post-dating Re Officer L and pre-dating Rabone. See Chapter 7. Al-Sweady Public Inquiry, Chairman’s Ruling of 21 June 2010—application of the preRabone Article 2 case law in the context of a public inquiry.10 Equality and Human Rights Commission v Prime Minster and others [2011] EWHC 2401, [2012] 1 WLR 1389—consideration of the distinction, if any, between a ‘real risk’ and a ‘serious risk’. Soering v UK (1989) 11 EHRR 439—Strasbourg authority on a prospective risk of a breach of Article 3. Renolde v France (2009) 48 EHRR 969, [2008] Inquest LR 159—Strasbourg authority on the immediacy of risk in a case involving suicide. Opuz v Turkey (2010) 50 EHRR 695, 27 BHRC 159—Strasbourg authority on what constitutes a continuing or immediate risk.

B. The Common Law and Anonymity for Witnesses The common law basis for granting anonymity or special measures derives from the court or tribunal’s duty to be fair to those that appear before it. When considering such an application the coroner must weigh relevant countervailing considerations, including the effect on the witness of giving evidence with or without special measures and the detriment to the inquest of allowing such measures. The principle advantage for an applicant lies in the weight that can be placed on subjective concerns for safety and well-being, in contrast to the objective assessment under Article 2.

(i) R (A) v Lord Saville and others [2000] 1 WLR 1855, [1999] All ER 860 Keywords: Article 2 (procedural/substantive obligations), human rights, inquiry, military personnel, protective measures, witnesses The Bloody Sunday Inquiry was established under the chairmanship of Lord Saville of Newdigate in 1998 to inquire into the circumstances into the circumstances in which a number of civilians were fatally shot or wounded by British soldiers following a civil rights march in Londonderry/Derry in 1972. The Tribunal intended to take evidence from a large number of soldiers who were present or otherwise involved in the events of the day. Many

10 www.webarchive.nationalarchives.gov.uk/20150115114702/http://www.alsweadyinquiry.org/linkedfiles/ alsweadyinquiry/key_documents/rulingonlegalissuesrelatingtoanonymityfollowingfirstdirectionshearingof 21june2010.pdf (as of 26 April 2015).

260 Matthew Hill and Sir Neil Garnham

sought to give their evidence anonymously, including those who had done so at a previous inquiry into the same events. The applications predated the coming into force of the HRA 1998 and hence relied on common law principles. After a complex and lengthy series of proceedings, the Tribunal decided that the names of military witnesses should be disclosed. The decision was challenged and quashed by the High Court. The Tribunal’s appeal to the Court of Appeal was dismissed. The Tribunal’s preliminary ruling (from July 1998) referred to the following approach, which found favour as a statement of principle in the High Court (emphasis added):11 Accordingly, we will be willing to grant an appropriate degree of anonymity in cases where in our view it is necessary in order to achieve our fundamental objective of finding the truth about Bloody Sunday. We will also be prepared to grant anonymity in cases where we are satisfied that those who seek it have genuine and reasonable fears as to the potential consequences of disclosure of their personal details, provided that the fundamental objective to which we have referred is not prejudiced. As to the degree of anonymity that is appropriate, our current view is that restricting the disclosure of names and addresses ought to be sufficient in most, if not all, cases. We would regard the use of a screen as a wholly exceptional measure. The obligation nevertheless remains firmly on those who seek anonymity of any kind to justify their claim.

Both the High Court and Court of Appeal held that the Tribunal had erred when later considering the applications made by the soldiers. In particular, emphasis was placed on the Tribunal’s perceived failure to weigh properly the concerns of the soldiers against the extent to which granting anonymity would, in reality, restrict the openness of the Inquiry. Giving the judgment of the Court, Lord Woolf set out its reasoning at paragraph 68: … 2. The Tribunal having acknowledged in its July [1998] preliminary hearing … that there can be in-roads on openness in an Inquiry of this sort, surprisingly seems to have lost sight of the fact that the inroad on openness involved in allowing the soldiers to use letters instead of names is limited. This is because: (i) the evidence would still be given in public with the soldiers capable of being observed while giving their evidence; (ii) the Tribunal know their names and as Mr [Christopher] Clarke [Counsel to the Inquiry] accepted could investigate any matters going to credibility; (iii) their officers who were in charge and should have been controlling events will be named; (iv) if there was any reason for naming a particular soldier this could still be done; (v) the ability for the Tribunal to reach the truth was as the Tribunal acknowledged not going to be undermined. 3. In such a situation, the Tribunal would certainly be still conducting an inquiry in public. R easons why it is important for a court to sit in public which were identified in The Attorney General v Leveller Magazine Limited [1979] AC 440 at p. 449H and R v Socialist Worker ex parte The A-G [1975] 1 QB 637 at p.651–652 would not be contravened. The supervision by the public would still be present, providing the safeguard against arbitrariness or idiosyncrasy. The evidence would be communicated publicly; full reports of the proceedings would be possible. The names of the witnesses might be of interest but they would be of no real concern to the onlookers and if they became of concern then they could still be named. … 4. The Tribunal are obviously concerned about the perception of the families and their supporters. It is true that it is their concerns which have led to the establishment of the Tribunal. However, while of course the Tribunal had fully in mind the risk to the soldiers they do not seem to have 11

Quoted at para 12 of the Court of Appeal decision.

Anonymity, Protective Measures and Public Interest Immunity 261 paid sufficient attention to the fact that to deny the soldiers anonymity would certainly affect their perception of the fairness of the inquiry. It is here that the importance of the requirement of fairness to the soldiers and their families becomes significant. From the point of view of the families of the dead and wounded, the harm of concealing the names is objectively of no great significance. To the soldiers and their families it is of great significance. … 5. … We agree with the Tribunal that the issue is not to be determined by the onus of proof. However, in our judgment the right approach here once it is accepted that the fears of the soldiers are based on reasonable grounds should be to ask is there any compelling justification for naming the soldiers, the evidence being that this would increase the risk.

(ii) In re Officer L and others [2007] UKHL 36, [2007] 1 WLR 2135, [2007] Inquest LR 214 Keywords: Article 2 (procedural/substantive obligations), human rights, inquiry, police, protective measures, witnesses The facts of this case are set out above and in Chapter 7. Lord Carswell considered the common law test for application for anonymity in the context of a public inquiry. He also set out guidance as to how a tribunal should approach the interaction of the Article 2 and common law tests. 22. The principles which apply to a tribunal’s common law duty of fairness towards the persons whom it proposes to call to give evidence before it are distinct and in some respects different from those which govern a decision made in respect of an article 2 risk. They entail consideration of concerns other than the risk to life … Subjective fears, even if not well founded, can be taken into account, as the Court of Appeal said in the earlier case of R v Lord Saville of Newdigate, ex p A [2000] 1 WLR 1855. It is unfair and wrong that witnesses should be avoidably subjected to fears arising from giving evidence, the more so if that has an adverse impact on their health. It is possible to envisage a range of other matters which could make for unfairness in relation of witnesses. Whether it is necessary to require witnesses to give evidence without anonymity is to be determined, as the tribunal correctly apprehended, by balancing a number of factors which need to be weighed in order to reach a determination. … 29. I suggest that the exercise to be carried out by the tribunal faced with a request for anonymity should be the application of the common law test, with an excursion, if the facts require it, into the territory of article 2. Such an excursion would only be necessary if the tribunal found that, viewed objectively, a risk to the witness’s life would be created or materially increased if they gave evidence without anonymity. If so, it should decide whether that increased risk would amount to a real and immediate risk to life. If it would, then the tribunal would ordinarily have little difficulty in determining that it would be reasonable in all the circumstances to give the witnesses a degree of anonymity. That would then conclude the exercise, for that anonymity would be required by article 2 and it would be unnecessary for the tribunal to give further consideration to the matter. If there would not be a real and immediate threat to the witness’s life, then article 2 would drop out of consideration and the tribunal would continue to decide the matter as one governed by the common law principles. In coming to that decision the existence of subjective fears can be taken into account, on the basis which I earlier discussed (see para 22) … I would not regard it as essential in every case to commence consideration of the issue by seeking to identify such subjective fears.

262 Matthew Hill and Sir Neil Garnham

(iii) Re A and Others (Nelson Witnesses) [2009] NICA 6 Keywords: Article 2 (procedural/substantive obligations), human rights inquiry, military personnel, protective measures, witnesses Rosemary Nelson, a prominent solicitor, was murdered in 1999 outside her home in Lurgan, Northern Ireland. Her death gave rise to allegations of collusion between the security forces and paramilitary organisations thought to be involved in her murder. In 2004 a public inquiry was established to investigation those allegations. As with other inquiries into killings during the Troubles, a number of witnesses applied to give their evidence anonymously. In respect of this case, the relevant witnesses were former members of the Royal Irish Regiment whose applications had been refused by the inquiry chairman. Their attempts to have the decision quashed by the Northern Irish High Court failed. On a majority (Girvan LJ dissenting) the Northern Irish Court of Appeal dismissed the appeal. In the course of their judgments, Kerr LCJ and Girvan LJ considered the comments of Lord Woolf in ex parte A (quoted above) that ‘the approach … once it is accepted that the fears of the soldiers are based on reasonable grounds should be to ask is there any compelling justification for naming the soldiers.’12 Both held that those observations should not be taken to have established a principle of general application. Girvan LJ also gave detailed guidance as to how the balancing exercise should be carried out in the instant case. Kerr LCJ stated: 24. … I have concluded that Lord Woolf did not propound a rule intended to be of general application to the effect that where a risk to life arose, compelling justification was required before a claim for anonymity of witnesses could be refused. Put simply, the context here is different. Whereas in ex parte A the decision might well have infringed the applicants’ rights under article 2, in the present case it has been determined that this does not arise. I am of the view that a risk falling short of that required to activate article 2 of ECHR falls to be assessed simply as one of a number of factors in an even-handed evaluation of competing interests rather than as a matter which requires to be offset by compelling justification.

Girvan LJ dissented, allowing the appeal: 23. What the common law requires is fairness to the individual witness in all the relevant circumstances of the individual case. The determination of what is fair requires the carrying out of a balancing exercise. The nature of such an exercise necessarily requires putting into the scales the arguments and factors favouring the granting or withholding of anonymity. The passage from Lord Woolf should not be read as stating a broad overriding principle that the common law duty of fairness in any case where a claimed risk to life and subject[ive] fears arise requires that anonymity should be granted in the absence of compelling reasons. How the balance is struck in individual cases will, of course, be fact specific. Where there is a risk to the life of a witness the extent of the risk is a highly relevant factor to be put into the scales. Common sense and humanity would lead to the conclusion that the greater the risk the more persuasive the case for anonymity and the more the court would have to be persuaded that the countervailing factors are even more persuasive so as to lead to a refusal of anonymity or, in the words of Lord Woolf, there would have to be some compelling reason for refusing anonymity. Using the terminology in Ex parte Brind [1991] AC 969

12 R v Lord Saville and others ex parte A [2000] 1 WLR 1855 at 1877, quoted at para 18 of Kerr LCJ’s judgment in Nelson Witnesses.

Anonymity, Protective Measures and Public Interest Immunity 263 there would have to be a competing public interest of sufficient importance to justify withholding anonymity.

Other Cases Scott v Scott [1913] AC 417—classic statement of the principle of open justice in the context of early twentieth-century divorce proceedings. R v Socialist Worker ex parte The A-G [1975] 1 QB 637, [1974] 3 WLR 801—publishing the names of anonymised victims of blackmail contrary to a judicial direction amounts to a contempt, notwithstanding principles of open justice. The Attorney General v Leveller Magazine Limited [1979] AC 440, [1979] 2 WLR 247— publishing the identity of an anonymised witness where details allowing the identification emerged (unchallenged) in open court, did not amount to a contempt. R v Legal Aid Board ex parte Kaim Todner [1999] QB 966, [1998] 3 WLR 925—refusal of an application for anonymity from a party to the proceedings. R (Amin) v SSHD [2003] UKHL 51, [2004] 1 AC 653—leading case on the requirements of an Article 2 investigation, including the need for an appropriate level of public scrutiny. See Chapter 7. Al-Rawi v Security Services [2011] UKSC 34, [2012] 1 AC 531—restatement of the principle of open justice in the course of a (majority) finding that there was no common law power for a court to adopt closed proceedings in an ordinary civil claims for damages. Bank Mellat v Her Majesty’s Treasury (no. 1) [2013] UKSC 38, [2014] AC 700—discussion and guidance on the adoption of closed proceedings in the context of counter-terrorism legislation. A v British Broadcasting Corporation [2014] UKSC 25, [2014] 2 WLR 1243—restatement of the right of courts to grant anonymity to parties and witnesses, notwithstanding the importance of open justice and the legitimate interest of the media. R v Bedfordshire Coroner ex parte Local Sunday Newspapers [1999] 164 JP 283, [2000] 164 JPN 370—coronial application of common law principles regarding anonymity in the context of armed police officers giving evidence to an inquest.

C. Article 8 and Anonymity for Witnesses Those seeking anonymity at inquests may be able to rely on their Article 8 rights to respect for their family and private lives. In the classic European Convention on Human Rights (ECHR) formulation these are weighed against the Article 10 rights (primarily of the press) to freedom of expression in the form of reporting court proceedings without hindrance. However, following a plethora of applications for anonymity in child settlement hearings, the Court of Appeal has reiterated the need for a court faced with such an application to look beyond that Manichean balancing exercise to the question of whether it is ‘necessary for the court to grant a derogation from open justice and thus from the rights of the public

264 Matthew Hill and Sir Neil Garnham

at large.’13 It follows that the absence of an objection to an application for anonymity does not relieve the court of the duty to consider whether it is necessary. The approach to applications based on Article 8 is set out in the cases below. It is, in essence, the same balancing exercise as will be adopted by a court faced with a common law application. In practice arguments about privacy or other interference with an applicant’s private life may be considered alongside other ‘common law’ factors, such as risk of harm to the witness. However, for the purposes of this chapter it is helpful to consider Article 8 separately, not least because the cases reveal the importance that may be placed by the courts on the right of the press to report cases without restrictions.

(i) In re S (FC) (a child) [2004] UKHL 47, [2005] 1 AC 593 Keywords: Human rights, protective measures, witnesses The appellant in this case was a child whose mother was awaiting trial for the murder of his brother. The child sought an injunction to restrain the publication of his mother’s identity on the basis that this may lead to him being identified. Such an injunction, it was argued, was necessary to protect his Article 8 rights. The injunction was granted by the High Court but a local newspaper successfully applied to have it altered so that the child’s mother and deceased brother could be named. The child appealed unsuccessfully to the Court of Appeal (majority decision) and the House of Lords (unanimous). In the latter proceedings, Lord Steyn gave the only substantive speech (with which Lords Bingham, Nicholls, Hoffman and Carswell agreed). In doing so he set out the approach to the Article 8/Article 10 balancing exercise, drawing on the celebrated case of Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457, and emphasised the importance of open justice and the role of the press in reporting proceedings: 17. The interplay between articles 8 and 10 has been illuminated by the opinions in the House of Lords in Campbell v MGN Ltd. For present purposes the decision of the House on the facts of Campbell and the differences between the majority and the minority are not material. What does, however, emerge clearly from the opinions are four propositions. First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test. This is how I will approach the present case. 18. In oral argument it was accepted by both sides that the ordinary rule is that the press, as the watchdog of the public, may report everything that takes place in a criminal court. I would add that in European jurisprudence and in domestic practice this is a strong rule. It can only be displaced by unusual or exceptional circumstances. It is, however, not a mechanical rule. The duty of the court is to examine with care each application for a departure from the rule by reason of rights under article 8.

13

JX MX (n 7) paras 26–27.

Anonymity, Protective Measures and Public Interest Immunity 265

(ii) Re LM (Reporting Restrictions; Coroner’s Inquests) [2007] EWHC 1902 (Fam), [2007] Inquest LR 221 Keywords: Human rights, protective measures, witnesses The facts of this case are sadly reminiscent of In Re S. Anonymity was sought on behalf of a child whose mother had been found, in High Court care proceedings, to have killed her older sibling. It was argued that anonymity should be extended to the mother and the deceased sibling in order to ensure that the child was not identified. The principal legal difference to In Re S was that in Re LM it was an inquest and not a criminal trial that gave rise to the anonymity application. Sir Mark Potter, President of the Family Division, held that the principles established by In Re S applied, in broad terms, to the coronial as well as the criminal jurisdiction. He decided that those principles should be applied without modification in the case before him. However, he referred back to the context of the case—the killing of a child by a family member, in circumstances where criminal proceedings may still have been commenced— and did not exclude the possibility that in other coronial contexts some modification may be appropriate. 39. I do not think it necessary or desirable for the purposes of this case to reach any general conclusion or to state any general principle in respect of the circumstances in which it may be appropriate to make an order protecting the identity of a witness in an inquest where no such protection would be afforded in criminal proceedings. In my view the state of the jurisprudence and the principles stated in Re S are broadly those applicable to all courts of record where an application is made by a party who is not involved directly in those proceedings, either as the object of the inquiry or as a witness, but seeks an order on the basis of an interference with his or her Convention rights … … 50. In approaching this difficult case, I consider that I should apply the principles laid down in Re S … I do not think that in this case the principles recited in Re S require modification or qualification in light of the fact that the relevant proceedings will be inquest proceedings as opposed to criminal proceedings. Inquest proceedings are court proceedings similarly subject to the principles of open justice and the remedies contained and limitations implicit in S.39 of the Children and Young Persons Act.

Sir Mark considered that ‘the decision in Re S emphatically underlined the weight to be accorded to the Article 10 rights of the media’. However, he emphasised that each case had to be considered on its own facts. In Re LM it had been submitted on behalf of the child that publicity from the inquest which led to her identification could have a detrimental effect on her mental health and her chances of finding adoptive parents. This, it was argued, placed her in the ‘unusual and exceptional’ category recognised in Re S (see paragraph 18 quoted above) as potentially justifying injunctive relief to protect her anonymity. Sir Mark was not persuaded: 64. In the circumstances, I am not satisfied that the Article 10 rights of the media in this case are outweighed by the Article 8 considerations relating to LM’s unhappy position. In a situation where a child has suffered from a homicide within the family, there are inevitable difficulties which require to be faced in respect of the disturbance to that child’s life and the issues which he or she must face and overcome. In the light of the weight generally to be attributed to the rights of a free press and the interests of open justice (see Re S) the question whether the circumstances are sufficiently

266 Matthew Hill and Sir Neil Garnham unusual or exceptional to justify a restriction on those rights must be viewed in that context. If I were satisfied that publicising the mother’s and L’s identity would indeed operate as a barrier to LM’s future adoption or were it established that such publicity would result in a long-term stigma equivalent to that of the child in A Local Authority v W and Others,14 my view might be different. However, I am not so satisfied. I do not consider that the undoubted possibility of additional, but uncertain, difficulties with LM’s therapy establish sufficient likelihood of lasting harm referable to the publicity as distinct from the general background and the underlying circumstances which give rise to LM’s troubled state. In those circumstances, I am not prepared to grant an injunction in the terms sought by the Guardian or Local Authority.

Sir Mark decided that while an anonymity order should be made for the child (a position that was not opposed), the identities of her mother and deceased sister should not be so protected.

(iii) In re Guardian News and Media Ltd [2010] UKSC 1, [2010] 2 AC 697 Keywords: Human rights, protective measures, witnesses The case involves a number of individuals who were subject to freezing orders under antiterrorism legislation. These men sought and were granted anonymity in the subsequent proceedings. A number of media organisations challenged this position. By the time the case reached the Supreme Court, a number of the individuals had been named or had failed to provide instructions to their legal representatives. One, however, continued to be identified only as ‘M’. M argued that an anonymity order was necessary to protect his Article 8 rights at a time when he had not been charged or convicted of any criminal offence. The media organisations founded their case to name M on their Article 10 rights to freedom of expression. The Supreme Court found in favour of lifting anonymity. It noted the far-reaching effect of the order in the case and held that the public would be able to distinguish between the correct position—that M was suspected of involvement in terrorism—and the unjustified inference that he was involved in terrorism. Delivering the unanimous judgment of the Court, Lord Rodger reflected on the Article 10 arguments that led him to conclude that there was a powerful general public interest in identifying M in media reports. 63. What’s in a name? ‘A lot’, the press would answer. This is because stories about particular individuals are simply much more attractive to readers than stories about unidentified people. It is just human nature. And this is why, of course, even when reporting major disasters, journalists usually look for a story about how particular individuals are affected. Writing stories which capture the attention of readers is a matter of reporting technique, and the European Court holds that article 10 protects not only the substance of ideas and information but also the form in which they are conveyed: News Verlags GmbH & Co KG v Austria (2000) 31 EHRR 246, 256, para 39 … More succinctly, Lord Hoffmann observed in Campbell v MGN Ltd [2004] 2 AC 457, 474, para 59, ‘judges are not newspaper editors.’ See also Lord Hope of Craighead in In re British Broadcasting Corpn [2009] 3 WLR 142, 152, para 25. This is not just a matter of deference to editorial independence. The judges are recognising that editors know best how to present material in a way that will interest the readers of their particular publication and so help them to absorb the information. A requirement to report it in some austere, abstract form, devoid of much of its human interest, could well

14

A Local Authority v W and Others [2005] EWHC 1564 (Fam), [2006] 1 FLR 1.

Anonymity, Protective Measures and Public Interest Immunity 267 mean that the report would not be read and the information would not be passed on. Ultimately, such an approach could threaten the viability of newspapers and magazines, which can only inform the public if they attract enough readers and make enough money to survive. 64. Lord Steyn put the point succinctly in In re S [2005] 1 AC 593, 608, para 34, when he stressed the importance of bearing in mind that: ‘from a newspaper’s point of view a report of a sensational trial without revealing the identity of the defendant would be a very much disembodied trial. If the newspapers choose not to contest such an injunction, they are less likely to give prominence to reports of the trial. Certainly, readers will be less interested and editors will act accordingly. Informed debate about criminal justice will suffer.’ Mutatis mutandis, the same applies in the present cases. A report of the proceedings challenging the freezing orders which did not reveal the identities of the appellants would be disembodied. Certainly, readers would be less interested and, realising that, editors would tend to give the report a lower priority. In that way informed debate about freezing orders would suffer. … 72. Of course, allowing the press to identify M and the other appellants would not be risk-free. It is conceivable that some of the press coverage might be outrageously hostile to M and the other appellants … But the possibility of some sectors of the press abusing their freedom to report cannot, of itself, be a sufficient reason for curtailing that freedom for all members of the press. James Madison long ago pointed out that ‘Some degree of abuse is inseparable from the proper use of everything, and in no instance is this more true than in that of the press’: ‘Report on the Virginia Resolutions’ (1800), in Letters and Other Writings of James Madison (1865) Vol 4, p 544. The Press Complaints Commission is the appropriate body for dealing with any lapses in behaviour by the press. The possibility of abuse is therefore simply one factor to be taken into account when considering whether an anonymity order is a proportionate restriction on press freedom in this situation. 73. Although it has effects on the individual’s private life, the purpose of a freezing order is public: it is to prevent the individual concerned from transferring funds to people who have nothing to do with his family life. So this is not a situation where the press are wanting to publish a story about some aspect of an individual’s private life, whether trivial or significant. Rather, they are being prevented from publishing a complete account of an important public matter involving this particular individual, for fear of the incidental effect that it would have on M’s private and family life.

Other Cases Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457—celebrated domestic authority on Article 8 vs Article 10 balancing exercise. Von Hannover v Germany [2004] EMLR 21, (2005) 40 EHRR 1—leading Strasbourg authority on the Article 8 vs Article 10 balancing exercise. JIH v News Group Newspapers Ltd [2011] EWCA Civ 42, [2011] 1 WLR 1645—anonymity injunctions, the common law and Article 8 vs Article 10 in the context of proceedings to prevent the publication of private information about a celebrity. JX MX v Dartford and Gravesham NHS Trust [2015] EWCA Civ 96, [2015] EMLR 14— CA guidance to courts on anonymity, the common law and Article 8 vs Article 10 in the context of infant settlement approval hearings.

268 Matthew Hill and Sir Neil Garnham

D. Public Interest Immunity Public interest immunity (PII) applies to the coronial jurisdiction as it does to other proceedings. Under previous legislation, when PII arose at an inquest it was considered by the High Court exercising its jurisdiction to issue or refuse witness summonses. The CJA 2009 appears to alter the position by providing a coroner with powers under Schedule 5 to require a person to produce particular documents, and to determine any claim either that the holder of the material is ‘unable’ to comply with such a direction or that it is ‘not reasonable’ to require him to comply.15 The expectation has been that where PII is claimed, it will now be for a coroner to apply the established principles to the material before him and conduct a balancing exercise between the ‘competing public interests that harm should not be done to a public service by the disclosure of documentation and the public interest that the administration of justice should not be frustrated by withholding those documents.’16 In many cases there will be no objection to the coroner determining a PII application, just as he determines any other claim that disclosure should not be required. However, there may be cases where the nature of the material in issue is so sensitive that disclosure even to a coroner for the purposes of determining PII is resisted. In such cases there is likely to be argument as to whether the High Court retains its power, the CJA 2009 notwithstanding, to hear and decide PII applications. A full exposition of the relevant authorities on PII is outside the scope of this book. However, the two cases considered below reflect two aspects of PII that are of particular relevance in the coronial context: national security and the disclosure of serious case reviews and other reports from organisations and agencies facing possible criticism following a sudden death.

(i) Secretary of State for Foreign and Commonwealth Affairs v Assistant Deputy Coroner for Inner North London [2013] EWHC 3724 (Admin), [2014] ACD 43 Keywords: Disclosure, inquiry, public interest immunity, national security Alexander Litvinenko died in November 2006 having ingested Polonium-210, a radioactive isotope. Arrest warrants were issued for two Russian nationals who had left the UK. An inquest was established and sought disclosure of various documents from HM Government. By certificate dated 7 February 2013 the appellant Secretary of State claimed PII in respect of a number of documents. The assistant deputy coroner (‘the coroner’) upheld some parts of the PII claim, and rejected others. The Secretary of State appealed to the High Court in respect of the latter. The principal arguments advanced were that the coroner had given insufficient weight to the views of the Secretary of State in respect of the potential damage to national security of disclosure, and that a proper consideration of the competing interests could not rationally have resulted in the decision to refuse the PII claim. 15 In terms of disclosure of materials by an organisation to the coroner, see Sch 5, paras 1(2), 1(4), 1(5) and 2(1) and 2(2), which are set out above. In terms of disclosure by the coroner to interested persons, see r 15, again set out above. On the distinction between those two processes, see the discussion on Worcestershire County Council and another v HM Coroner for Worcestershire [2013] EWHC 1711 (QB), [2013] PTSR D41. 16 Worcestershire County Council (n 15) para 62.

Anonymity, Protective Measures and Public Interest Immunity 269

The High Court, which heard evidence in ‘open’ and ‘closed’ session and likewise gave ‘open’ and ‘closed’ rulings upheld the appeal. Goldring LJ, giving the unanimous judgment of the Court, set out the proper approach to the balancing exercise to be undertaken in the case: 53. First, it is axiomatic, as the authorities relied upon by the [properly interested persons] demonstrate, and as the Coroner set out in his open judgment, that public justice is of fundamental importance. Even in cases in which national security is said to be at stake, it is for courts, not the Government, to decide whether or not PII should prevent disclosure of a document or part of a document. 54. Second, as I have said, the issues which we have had to resolve only concerned national security. The context of the balancing exercise was that of national security as against the proper administration of justice. Had [other] issues [arisen], different considerations might well have applied. 55. Third, when the Secretary of State claims that disclosure would have the real risk of damaging national security, the authorities make it clear that there must be evidence to support his assertion. If there is not, the claim fails at the first hurdle. In this case there was unarguably such evidence. The Coroner did not suggest otherwise. 56. Fourth, if there is such evidence and its disclosure would have a sufficiently grave effect on national security, that would normally be an end to the matter. There could be no disclosure. If the claimed damage to national security is not ‘plain and substantial enough to render it inappropriate to carry out the balancing exercise,’ then it must be carried out. That was the case here. 57. Fifth, when carrying out the balancing exercise, the Secretary of State’s view regarding the nature and extent of damage to national security which will flow from disclosure should be accepted unless there are cogent or solid reasons to reject it. If there are, those reasons must be set out. There were no such reasons, let alone cogent or solid ones, here. The Coroner did not seek to advance any. The balancing exercise had therefore to be carried out on the basis that the Secretary of State’s view of the nature and extent of damage to national security was correct. 58. Sixth, the Secretary of State knew more about national security than the Coroner. The Coroner knew more about the proper administration of justice than the Secretary of State. 59. Seventh, a real and significant risk of damage to national security will generally, but not invariably, preclude disclosure. As I have emphasised, the decision was for the Coroner, not the Secretary of State. 60. Eighth, in rejecting the Certificate the Coroner must be taken to have concluded that the damage to national security as assessed by the Secretary of State was outweighed by the damage to the administration of justice by upholding the Certificate. 61. Ninth, it was incumbent on the Coroner to explain how he arrived at his decision, particularly given that he ordered disclosure in the knowledge that by doing so there was a real and significant risk to national security.

Goldring LJ held that although the ‘narrative of the inquest’ would inevitably be affected by non-disclosure, this did not outweigh the real risk of significant damage to national security. He further concluded that had the balancing exercise been approached in the way he summarised, no coroner could have reasonably come to a different conclusion. The coroner’s decision was quashed and the Court declined to remit the matter back to him.

270 Matthew Hill and Sir Neil Garnham

Following the decision, the coroner sought, and ultimately achieved, the establishment of a public inquiry under the 2005 Inquiries Act in place of the inquests (see Chapter 16 on inquest vs inquiry).17

(ii) Worcestershire County Council and another v HM Coroner for Worcestershire [2013] EWHC 1711 (QB), [2013] PTSR D41 Keywords: Disclosure, public interest immunity Dana Baker committed suicide aged 16 after a troubled life. She had spent several years in foster care and had regular contact with various social services agencies. Following her death, the Worcestershire Safeguarding Children Board (‘the Board’) undertook a serious case review. During the review 10 individual management reviews and six information reports were obtained and a draft overview report was prepared, in line with the Board’s statutory duties. The coroner sought to obtain all of these documents in preparation for Dana’s inquest. The Board provided the draft overview report (which, in final and redacted form, was intended for eventual publication in any event), but resisted disclosure of the underlying management reviews and information reports (‘the underlying reports’). The Board put forward a case for PII on the basis that there was a public interest in encouraging candour amongst those involved in serious case reviews and that this would be undermined if the underlying reports were made available to the coroner and, potentially, to interested persons in the inquest. The case pre-dated the CJA 2009 and hence the PII arguments took place in the High Court, exercising its jurisdiction to issue witness summonses in coronial proceedings. Jeremy Baker J found that the underlying reports contained ‘information of potential relevance to HM Coroner for the purposes of his inquiry, over and above that which is contained in the draft overview report and the witness statements and documentation already obtained in the course of his inquiry.’ While he recognised the public interest in encouraging candour in the production of reports, he found that this was outweighed by the public interest in providing the additional material to the coroner. He stressed the two stages involved in disclosure in coronial proceedings. First, there is disclosure to the coroner for the purpose of informing his or her views as to the scope of the inquest and the relevance of particular issues, witnesses and documents. Second, there is a separate and distinct decision as to whether there should be disclosure to interested persons. The coroner in the present case had undertaken to allow the Board to make representations before any decision was taken concerning onward disclosure. Jeremy Baker J was conscious that he was determining the case shortly before coroners took on the responsibility for determining PII applications under the 2009 Act. At paragraph 92 he provided the following guidance for cases of a similar nature to the one before him (citations removed). (i)

HM Coroner has an equally crucial role [to that of local safeguarding boards] in investigating suspicious deaths within his area, including the death of a ‘looked after’ child who has died a ‘violent or unnatural death.’

17 R (Marina Litvinenko) v Secretary of State for the Home Department [2014] EWHC 194 (Admin), [2014] HRLR 6.

Anonymity, Protective Measures and Public Interest Immunity 271 (ii)

(iii) (iv)

(v)

(vi)

(vii)

Subject to the supervisory jurisdiction of this court, the scope of an inquest is essentially a matter for the coroner. Indeed in cases involving the death of a ‘looked after’ child, and where an Article 2 type of inquiry is required, it may be that the State’s procedural investigative obligations would not be satisfied by the [serious case review] process, and would require that inquiry to be carried out in the context of a Middleton type inquest. Even where such an inquest is not required, the coroner’s Rule 43 powers may require a fuller investigation into the circumstances in which the death occurred. Moreover, a Jamieson type inquest may require the investigation of systematic failures. Reflecting the pre-eminent role of HM Coroner in deciding the scope of an inquest, this court will only interfere with such a decision in exceptional circumstances. The role of HM Coroner is not an adversarial one, but an investigative one such that questions of relevance and necessity are unlikely to be as decisive as they would be in the context of civil litigation. Where in the context of a claim of public interest immunity a balance has to be struck between competing public interests, it may be that because of the nature of his inquiry the balance ought normally to be in favour of disclosure to HM Coroner. What is sought is not disclosure of the [underlying reports] to the public in general or indeed anyone else, save and except HM Coroner. Thus the argument in favour of non-disclosure arising out of the need to encourage openness within the [underlying reports] is likely to be significantly diluted. This being in contradistinction to the situation which may arise with the question of disclosure to members of the public. The question of any further disclosure is a matter for HM Coroner, having taken into account any further arguments in favour of non-disclosure and subject to the supervisory jurisdiction of this court; thus maintaining sufficient safeguards to those properly seeking non-disclosure of these documents.

This case is the subject of one of the Chief Coroner’s Law Sheets, ‘The Worcestershire Case’, 31 January 2014. Other Cases Conway v Rimmer and another [1968] AC 910, [1968] 2 WLR 998—general principles of PII. R v Chief Constable of West Midlands Police ex parte Wiley [1995] 1 AC 274, [1994] 3 WLR 433—general principles of PII, and in particular claims of PII for ‘classes’ of documents. Taylor v Anderton (Police Complaints Authority Intervening) [1995] 1 WLR 447, [1995] 2 All ER 420—PII and independent reports into the performance of state agencies. R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2010] EWCA Civ 65, [2011] QB 218—PII and jurisdiction in respect of cases involving national security. Dunn v Durham City Council [2012] EWCA Civ 1654; [2013] 1 LR 2305—the distinction between PII and balancing conflicting rights under ECHR in a disclosure process, including consideration of the principles requiring consideration when it is asserted that disclosure would damage the public interest. R (on the application of X) v Chief Constable of Y [2015] EWHC 484 (Admin); [2015] ACD 99—Recent review and application of the principles of PII in the context of police informants.

272

14 The Inquest Hearing DAVID MANKNELL

I. Overview Inquest hearings are required to be in public, unless the coroner considers that the public should be excluded in the interests of national security.1 On the rare occasions when an inquest is not in public, interested persons cannot be excluded.2 As to the procedure that is followed during the inquest, this has been notoriously inconsistent, with coroners around the country often adopting very different approaches. The freedom of action of a coroner has been recognised by the Court of Appeal.3 The choice of witnesses is one for the coroner (see Chapter 11) and he has considerable d iscretion in this regard. There has been an advance towards a more uniform approach: the Coroners (Inquests) Rules 2013 set out some basic parameters, and the Rules have been supplemented by Guidance from the Chief Coroner, particularly in Guidance No 12, ‘Inquest Checklist’, which acts as a speaking note for the coroner. Part 4 of the Coroners Rules (rules 17–27) govern management of the hearing. Rules 17 and 18 make provision for evidence by video link and evidence from behind a screen and rules 19–21 govern evidence and examination of witnesses. Notably, rule 19 provides that a coroner must allow any interested person who so requests to examine any witness either in person or by the interested person’s representative, although a coroner must disallow any question put to the witness which the coroner considers irrelevant.4 Rule 20 provides that oral evidence is to be given on oath or affirmation. The standard practice as to the order of questioning of witnesses is stated in rule 21, which specifies that witnesses will be examined first by the coroner, then by other interested persons, and lastly by the witness’s representative, if he has one. The coroner is ‘the prime inquisitor’ and the burden of the primary questioning of witnesses falls upon the coroner.5

1

Coroners Rules, r 11. R (Secretary of State for the Home Department) v Assistant Deputy Coroner for Inner West London [2010] EWHC 3098. Notably, the new r 11 chose to keep the limitation on excluding the public, but not others. 3 R v Inner West London Coroner, ex parte Dallaglio [1994] 4 All ER 139. 4 Coroners Rules, r 19(2). 5 R v HM Coroner for Inner London, ex parte Cohen (1994) 158 JP 644. 2

274 David Manknell

Rule 22 covers the privilege against self-incrimination, addressed in Chapter 11 of this book, and rule 23 covers the use of written evidence at the hearing, addressed in Chapter 14. Rule 25 sets out the circumstances in which a coroner may or must adjourn an inquest. A coroner may adjourn an inquest ‘if the Coroner is of the view that it is reasonable to do so’. As to closing submissions, rule 27 provides a prohibition on any person addressing the coroner as to the facts of the inquest. The High Court has rejected the argument that this prohibition in an Article 2 inquest is a breach of the Human Rights Act 1998 (HRA 1998) or is otherwise unlawful.6 It is a breach of natural justice for a coroner to refuse to hear submissions from counsel as to the appropriate verdict.7 In a jury inquest, such submissions should always be heard in the absence of the jury.8

II. Legislation and Other Sources The Coroners (Inquests) Rules 2013/1616 11. Inquest hearings to be held in public (1) A coroner must open an inquest in public. (2) Where the coroner does not have immediate access to a court room or other appropriate premises, the coroner may open the inquest privately and then announce that the inquest has been opened at the next inquest hearing held in public. (3) An inquest hearing and any pre-inquest hearing must be held in public unless paragraph (4) or (5) applies. (4) A coroner may direct that the public be excluded from an inquest hearing, or any part of an inquest hearing if the coroner considers it would be in the interests of national security to do so. (5) A coroner may direct that the public be excluded from a pre-inquest review hearing if the coroner considers it would be in the interests of justice or national security to do so. … 17. Evidence by video link (1) A coroner may direct that a witness may give evidence at an inquest hearing through a live video link. (2) A direction may not be given under paragraph (1) unless the coroner determines that giving evidence in the way proposed would improve the quality of the evidence given by the witness or allow the inquest to proceed more expediently.

6 R (Hair) v HM Coroner for Staffordshire South [2010] EWHC (Admin). NB note the observations of Moses LJ in R (Lin) v Secretary of State for Transport [2006] EWHC 2575 (Admin); [2006] Inquest LR 161 at para 56, albeit that it was not a coroner’s inquest that was before the Court. Moses LJ remarked that ‘those attending an inquest are entitled to make submissions of law in particular as to how the deputy coroner should direct the jury, the form of the questionnaire and as to recommendations pursuant to Rule 43. Such submissions would merely be beating the wind unless they were founded on the facts of the instant inquiry.’ 7 R v HM Coroner for East Berkshire, ex parte Clara Buckley (Watkins LJ and Laws J) (1993) 157 JP 425. 8 ibid.

The Inquest Hearing 275 (3) Before giving a direction under paragraph (1), the coroner must consider all the circumstances of the case, including in particular— (a) any views expressed by the witness or any interested person; (b) whether it would be in the interests of justice or national security to give evidence by video link; and (c) whether in the opinion of the coroner, giving evidence by video link would impede the effectiveness of the questioning of the witness. (4) A direction may be given under paragraph (1)— (a) on an application by the witness, or in the case of a child witness the parent or legal guardian of that witness; (b) on an application by an interested person; or (c) on the coroner’s own initiative. 18. Evidence given from behind a screen (1) A coroner may direct that a witness may give evidence at an inquest hearing from behind a screen. (2) A direction may not be given under paragraph (1) unless the coroner determines that giving evidence in the way proposed would be likely to improve the quality of the evidence given by the witness or allow the inquest to proceed more expediently. (3) In making that determination, the coroner must consider all the circumstances of the case, including in particular— (a) any views expressed by the witness or an interested person; (b) whether it would be in the interests of justice or national security to allow evidence to be given from behind a screen; and (c) whether giving evidence from behind a screen would impede the effectiveness of the questioning of the witness by an interested person or a representative of the interested person. (4) A direction may be given under paragraph (1)— (a) on the application by the witness, or in the case of a child witness the parent or legal guardian of that witness; (b) on an application of an interested person; or (c) on the coroner’s own initiative. 19. Entitlement to examine witnesses (1) A coroner must allow any interested person who so requests, to examine any witness either in person or by the interested person’s representative. (2) A coroner must disallow any question put to the witness which the coroner considers irrelevant. 20. Evidence given on oath or affirmation (1) A witness providing evidence at an inquest hearing shall be examined by the coroner on oath or affirmation subject to paragraph (2). (2) A child under the age of 14, or a child aged 14 or over who is considered by the coroner to be unable to understand the nature of an oath or affirmation, may, on promising to tell the truth, be permitted to give unsworn evidence.

276 David Manknell 21. Examination of witnesses Unless the coroner otherwise determines, a witness at an inquest hearing must be examined in the following order— (a) first by the coroner; (b) then by any interested person who has asked to examine the witness; and (c) if the witness is represented at the inquest, lastly by the witness’s representative. … 25. Adjournment and resumption of an inquest (1) A coroner may adjourn an inquest if the coroner is of the view that it is reasonable to do so. (2) The coroner must inform the next of kin or personal representative of the deceased and any other interested persons who have made themselves known to the coroner as soon as reasonably practicable of the decision to adjourn, the date of the decision to adjourn and the reason for the adjournment. (3) The coroner must inform the next of kin or personal representative of the deceased and any other interested persons who have made themselves known to the coroner as soon as reasonably practicable of the date, time and place at which an adjourned inquest is to be resumed. (4) A coroner must adjourn an inquest and notify the Director of Public Prosecutions, if during the course of the inquest, it appears to the coroner that the death of the deceased is likely to have been due to a homicide offence and that a person may be charged in relation to the offence. … 27. No address as to facts No person may address the coroner or the jury as to the facts of who the deceased was and how, when and where the deceased came by his or her death.

Guidance Guidance No 12, ‘Inquest Checklist’, 17 December 2013.9

III. Cases A. Flexibility of Proceedings and Role of Coroner (i) R (Dallaglio) v Inner West London Coroner [1994] 4 All ER 139 Keywords: Coroners, inquest hearing This was the appeal from the refusal of applications for judicial review of coroner’s inquest on ‘The Marchioness’ sinking in the River Thames and the resulting deaths. 9 www.judiciary.gov.uk/publications/guidance-no-12-the-inquest-checklist/.

The Inquest Hearing 277

Sir Thomas Bingham MR at 162j: [T]he special position of a coroner in England and Wales must be borne in mind. His role is quite unlike that of any other judicial officer. He, through his officer, gathers the relevant evidence, and I can readily accept that it would on occasion be appropriate to approach the press for information. He decides which witnesses should be called and which statements should be read. He examines the witnesses. In all these respects his role is quite unlike that of a judge as we know it. His function is indeed closer to that of a juge d’instruction than to that of a judge presiding over contested proceedings between adversaries. Thus his role is different. It is also very difficult and sensitive, because issues concerning the death of those they love are naturally of great moment to those they leave behind, and sometimes to the public at large.

Simon Brown LJ at 155b: [T]he inquiry is almost bound to stretch wider than strictly required for the purposes of a verdict. How much wider is pre-eminently a question for the coroner whose rulings on the question will only exceptionally be susceptible to judicial review.

(ii) R (Hay) v HM Coroner for Lincoln [2000] Lloyd’s Rep Med 264 Keywords: Coroners, inquest hearing The deceased died in prison of diabetic ketoacidosis, three days into his sentence. Various procedural decisions taken by the coroner were challenged by his widow in a claim for judicial review, including the coroner’s failure to have provided a list of planned witnesses before the start of the inquest itself, and a failure to adjourn to hear further witnesses. Brooke LJ: 46. We are unwilling, for our part, to fetter the discretion of a coroner by being at all prescriptive about the procedures he should adopt in order to achieve a full, fair and thorough inquiry. We have seen evidence that these matters are being considered by others, including a senior Home Office minister, and we would not wish to pre-empt the outcome of these discussions by ruling that procedural fairness requires any particular pre-hearing procedure should be followed. … … Subject to the need to obey the requirements of the Act and the Rules, it is for each coroner to decide how best he should perform his duties in a way that is as far as possible to everyone concerned, as well as doing his best to reduce the number of avoidable adjournments.

(iii) R (Douglas-Williams) v Inner South London Coroner [1998] EWCA Civ 1343; [1999] 1 All ER 344 Keywords: Coroners, inquest hearing, evidence, witnesses The deceased died in custody in contentious circumstances at a police station, having been arrested for burglary, with two medical experts attributing the death to positional asphyxia. The focus of the appeal to the Court of Appeal, following an unsuccessful claim for judicial review by the sister of the deceased, was on the direction that had been given in respect of unlawful killing. The appeal was dismissed. Lord Woolf MR, at 348h: There is no prosecutor in relation to an inquest and while an inquest is a court, the coroner’s role is more inquisitorial, even when sitting with a jury than that of a judge. A prosecutor has a

278 David Manknell c onsiderable discretion as to what charges he prefers and the trial takes place on those charges. There are no charges at an inquest and a coroner must decide the scope of inquiry which is appropriate and the witnesses to be summoned …

At 350c: There are no opening or closing speeches at inquests so Mr O’Connor [Counsel for the Appellant] justifiably attaches particular importance to the need for clarity as to the summing up on the law at an inquest.

(iv) R v HM Coroner for Inner North London, ex parte Cohen (1994) 158 JP 644 Keywords: Coroners, inquest hearing The deceased, who had been facing drugs charges, was found dead with a shotgun beside him. There was a conflict between the account of how the body was found given by a witness at the inquest, and the account that the witness had given in a statement to the police. The coroner did not ask the witness about the difference between the two accounts. The deceased’s family considered that the deceased had not been suicidal, and that there had been an insufficiency of enquiry by the coroner. The Divisional Court agreed and quashed the inquisition. McGowan LJ, at 650C–G: We were told that counsel for the relatives was a very inexperienced young barrister who was appearing for the relatives for no fee. Let me make clear that he or she, I know not, is not to be blamed for not having appreciated at the time that Clapp and Sheekey were in the witness box that, in fact, the account they were giving in the witness box was completely different from what Sheekey had told PC Powell when first seen. He could not know because he had no knowledge of the contents of PC Powell’s statement. The Coroner, however, did know exactly what was in that statement and must, therefore, have known that there was this striking conflict which on the face of it required resolution … Mr Coghlan, appearing for the Coroner, accepts that the Coroner is the prime inquisitor. He cannot excuse a failure on his part to ask questions that require to be asked by saying that the family was represented by Counsel who could have asked the questions. In actual fact, in this case he could not have asked the questions since he did not have the knowledge that the Coroner had.

(v) R (Warren) v HM Assistant Coroner for Northamptonshire [2008] EWHC 966 (Admin), [2008] Inquest LR 65 Keywords: Coroners, inquest hearing, witnesses The deceased committed suicide in the segregation unit of HMP Rye Hill, a privately run prison near Rugby in Warwickshire. He had hanged himself with a shoelace attached to a small hole in the metal plate on the back of the door of his cell. The deceased’s family sought to challenge by way of judicial review the coroner’s decision not to call to give evidence a consultant psychiatrist, Dr Turner, who had provided a report to the family. The judge declined to order that the coroner should be required to call Dr Turner specifically, but did rule that, in the circumstances of this particular case, if the inquest were to proceed

The Inquest Hearing 279

without evidence from an independent consultant psychiatrist it would not comply with Article 2. Foskett J: 41. … the Coroner has taken the view that Dr Turner’s proposed evidence goes further than it legitimately can for the reasons given in the letter and statement to which I have referred. Whilst others may well have taken a different view, I think it would be wrong for me to characterise that decision as so obviously wrong that I should interfere with it. As Jervis and general experience shows, a coroner has a wide discretion about how the proceedings are conducted and who it is ‘expedient’ to call as a witness. The coroner is not obliged to accept a proposed witness and, as I have said, I for my part would be very slow to interfere with that kind of decision.

B. Inquest to be in Public (i) R (Secretary of State for the Home Department) v Assistant Deputy Coroner for Inner West London [2010] EWHC 3098 Keywords: Inquest hearing This application for judicial review related to a decision of the assistant deputy coroner (Hallett LJ) in respect of the inquest she was hearing into the deaths of the victims of the bombings in London on 7 July 2005. The issue was whether the coroner had power to receive sensitive evidence relating to the Security Service in a closed hearing. The Divisional Court held that the coroner could not do so, and made observations as to the limits of a coroner’s discretion in determining how an inquest is conducted. Stanley Burnton LJ: 36. Rule 17,10 in its first sentence, recognises the fundamental principle of our legal proceedings, namely that they should be public unless there is good reason for them not to be. Quite apart from this, however, in the first part of rule 17 the natural meaning of ‘public’ is persons other than properly interested persons. There is no reason to ascribe any other meaning to ‘public’ in the proviso. Consideration of the other rules to which Maurice Kay LJ has referred, such as rule 20, confirm that this is indeed the meaning of ‘public’, for the reasons he gave and which were also given by the coroner. 37. Like Maurice Kay LJ, I consider that specific and clear words would have been required to qualify the rights of properly interested persons under, for example, rule 20, in order to achieve what is sought by the claimant. 38. Furthermore, the claimant’s contention is that the coroner may choose which properly interested persons may be present during closed sessions. Some may be excluded, others, such as the representatives of those organisations, may be allowed to be present. There is no trace in the Rules of any such power, and no indication as to the basis on which it would be exercised. It involves rewriting rule 17. It would put the coroner in the invidious position of having to say that she trusts certain parties but not others. It may be that she would have to rely on the views of the Security Service as to the trustworthiness of properly interested persons: an undesirable situation where it is the Security Service which is itself a properly interested person because of the investigation into its responsibility. 10

Coroners Rules 1984, r 17.

280 David Manknell 39. Last, the contention that the coroner has an implied power to hold secret sessions when she considers that it would be in the interests of national security to do so is hopeless. Rule 17 prescribes the power of the coroner in such circumstances. Where there is express provision there cannot be an implied provision applicable in the same circumstances.

C. Submissions on the Verdict (i) R v HM Coroner for East Berkshire, ex parte Clara Buckley (Watkins LJ and Laws J) (1993) 157 JP 425 Keywords: Inquest hearing, conclusions This was a claim for judicial review where the coroner had refused to hear counsel’s submission that death had been due to ‘lack of care’. The deceased was a Broadmoor patient suffering from schizophrenia who was described as ‘very mentally disturbed’. He was accommodated in the special care unit, where the highest level of supervision was provided for the most disturbed patients. There were difficulties in persuading him to accept oral medication. On the day in question he was in an anxious state, and the clinical staff on the unit decided to administer a powerful sedative intramuscularly. The drug caused his death, and there were concerns over the decision to administer the drug and the method by which it had been administered. Laws J, at 7F: It has been very properly conceded before us on behalf of the Coroner that this refusal to hear Counsel’s submission was a breach of natural justice. It is also conceded that, on the evidence before the Coroner, there was material upon which a reasonable jury might have found that there was a lack of care; though I should make it clear that the Coroner does not accept that there was in fact any lack of care and nothing in this judgment is intended to indicate that there was … It seems to me on the evidence which I have reviewed that the Coroner’s concessions are entirely correct. Even if he felt, after the close of the evidence, that no reasonable jury could find lack of care, he ought to have heard Counsel’s submissions … The Coroners’ Rules do not permit submissions at an inquest to be made as to the facts; but it seems to me that a submission as to what verdict ought or ought not to be left to a Coroner’s jury is always a submissions of law unless, of course, it is merely a colourable attempt to persuade the jury of a certain version of the facts. That was not the case here, and such a submission in any event can, and should, be made in the absence of the jury.

(ii) R (Hair) v HM Coroner for Staffordshire South [2010] EWHC (Admin) Keywords: Inquest hearing, conclusions The deceased hung himself while in custody. The family challenged the way in which the coroner had run the inquest, and it was alleged that the inquest had been conducted in breach of the obligations under Article 2 of the European Convention on Human Rights (ECHR). The primary ground of challenge related to the adequacy of the summing-up, but it was also alleged that rule 40 of the Coroner’s Rules 1984, which prevented any person

The Inquest Hearing 281

addressing the coroner or jury on the facts, prevented the jury reaching a proper conclusion on central issues of fact and so was itself incompatible with Article 2. The inquest’s verdict was quashed, on the basis that the failure by the coroner to call certain relevant witnesses and to comment upon the significance of certain documents. The criticism of the restriction in rule 40 was however rejected. HHJ Purle QC (sitting as a Deputy High Court Judge): 45. Miss Gerry also claims that Rule 40 of the Coroner’s Rules 1984 prevented the inquest from complying with Article 2 of ECHR. 46. Rule 40 provides:— ‘No person shall be allowed to address the Coroner or the jury as to facts’ 47. The requirement under Article 2 is to ensure that the state is held properly to account in respect of any death for which it may be responsible. Sadly, that typically embraces the death of prisoners in custody. No particular form of procedure is required, however, so long as there is an effective investigation, in which the family of the deceased person is involved. Addressing the coroner or jury as to facts is not, in my judgment, an essential pre-requisite of an effective investigation. 48. Miss Gerry points in this case to the difficulties she laboured under when addressing the coroner as to the questions that should be put to the jury. Nonetheless, the questions that were put corresponded to what she and all other Counsel involved wanted to be put. She was also allowed to address the coroner, as were the other Counsel involved, in reminding him as to what the evidence was as to who had access to the adjudication papers and the written statement. To the extent that the coroner’s summing-up to the jury was deficient, she can complain of that without recourse to Rule 40. To the extent that it was adequate, she can have no complaint. An inability to address the coroner as to the facts generally does not make an adequate summing-up inadequate. 49. Miss Gerry seeks an order quashing Rule 40 on the grounds of incompatibility with Article 2 of ECHR. I decline such an order. I do not consider Rule 40 to be incompatible with Article 2. As I have said, no particular process is required to hold the state to account, as long as it is effective. Miss Gerry’s submission, if accepted, would open the door to lengthy submissions in all cases having any state involvement. I do not consider this to be an essential element of what is in many respects an inquisitorial process, notwithstanding that there are also adversarial elements. Rule 40 has been around for a long time, and, whilst it has attracted comment, no-one has suggested that it is invalid and Middleton supports the proposition that the Coroner’s Rules are, in general terms, ECHR -compatible. 50. Alternatively, Miss Gerry asks that Rule 40 be read so as to allow interested parties to address the coroner as to facts where necessary to ensure Article 2 obligations are complied with. Tempting though it is to accede to this submission, I decline to do so. Ultimately, the resolution of this sort of case turns not on what submissions as to facts the parties are allowed to advance, but on the adequacy of the coronial process. Had the coroner in this case called all relevant evidence and given an impeccable summing-up, there would be no scope for complaint simply on account of the absence of the opportunity to make submissions as to the facts. As it happens, I have found deficiencies in the coronial process in the instant case, but the criticism of Rule 40 adds nothing. In my judgment, the ability to make submissions as to the facts, whether to the coroner or the jury, is not necessary to ensure compliance with Article 2. That being so, the suggested construction of Rule 40 is inappropriate.

282 David Manknell

(iii) R (Lin) v Secretary of State for Transport [2006] EWHC 2575 (Admin); [2006] Inquest LR 161 Keywords: Inquest hearing, conclusions This did not concern an inquest but was a claim for judicial review, challenging the decision of the Secretary of State for Transport not to hold a public inquiry into the circumstances of the Potters Bar rail crash. In refusing the application, Moses LJ relied in particular on the inquest that was to be held, and compared the position in an inquest with that at a public inquiry. In describing the inquest that was to be held, the following remarks were made, suggesting that in making submissions of law at the inquest as to how the coroner should direct the jury, such submissions ‘would merely be beating the wind unless they were founded on the facts of the instant inquiry’. These observations made should however be treated with caution, as it was not a coroner’s inquest that was before the Court, and the remarks are entirely obiter. 56. Both sides have accepted that the coroner has power to appoint counsel to assist the inquisition. I have already referred to the power to obtain advanced disclosure. The Secretary of State has already agreed to fund the inquest and will receive representations as to funding for both presence and representation. Those are matters for him, but it is difficult to see how full participation, without meeting all the reasonable requests, particularly from those travelling from abroad. This court cannot dictate what witnesses the coroner calls or what cross-examination he permits, but nor could it do so in the case of a public inquiry: (see D). It is right to point out that there is freedom to make submissions on the facts at a public inquiry, but those attending an inquest are entitled to make submissions of law in particular as to how the deputy coroner should direct the jury, the form of the questionnaire and as to recommendations pursuant to Rule 43. Such submissions would merely be beating the wind unless they were founded on the facts of the instant inquiry.

15 Conclusions SIR NEIL GARNHAM AND KATE BEATTIE

I. Overview Until the Coroners and Justice Act 2009 (CJA 2009) came into force, an inquest would conclude with what was colloquially known as ‘the verdict’. Now, after hearing the evidence at any inquest, the senior coroner, or the jury if there is one, must make a ‘determination’ and ‘findings’ in relation to the matters set out in section 5 of the 2009 Act1 and, in place of a verdict, reach a ‘conclusion’ as to the death.2 In all inquests, section 10 requires a determination of who the deceased was, how, when and where the deceased came by his or her death, to be recorded in Box 3 on the Record of Inquest.3 The Record of Inquest also records findings as to the particulars required for registration of the death (in Box 5) and a short form conclusion as to the death, or a narrative conclusion, or both (in Box 4). The medical cause of death is entered in Box 2 and who the deceased was in Box 1. Section 5(2) applies where a failure to determine that issue would put the UK in breach of its obligations under Article 2 of the European Convention of Human Rights (ECHR). In inquests where this section is applicable, the jury or coroner must, in addition to determining how the deceased came by his or her death, also determine the circumstances in which the deceased came by his or her death. The Chief Coroner’s Guidance sets out a three-stage process by which the coroner (or jury) should arrive at a conclusion:4 —— First, to make findings of fact based upon the evidence; —— Second, to distil from the findings of fact ‘how’ the deceased came by his or her death and to record that briefly in Box 3; —— Third, to record the conclusion, which must flow from and be consistent with the first two steps, in Box 4.

1

Pursuant to the Coroners and Justice Act 2009 (CJA 2009), s 10. Coroners (Inquests) Rules 2013/1616, Form 2, para 4. 3 Formerly known as the inquisition and now produced as Form 2 of the Schedule to the Coroners (Inquests) Rules 2013/1616. 4 Chief Coroner’s Guidance No 17, Conclusions: Short-form and narrative, 30 January 2015, para 18. 2

284 Sir Neil Garnham and Kate Beattie

The conclusion may be in short-form or narrative form. It is permissible to combine the two types of conclusion. The notes to Form 2 (Record of Inquest) contain the following list of short-form conclusions:5 —— —— —— —— —— —— —— —— ——

Accident or misadventure Alcohol/drug related Industrial disease Lawful/unlawful killing Natural causes Open Road traffic collision Stillbirth Suicide

The Chief Coroner’s Guidance states that the list is not ‘exclusive’ (meaning exhaustive) but straying from it ‘will usually be unwise’.6 It is for the coroner to set the bounds of the inquiry and, in cases where a jury is empaneled, to decide which conclusions to leave to the jury. The coroner must be satisfied first that there is sufficient evidence on which a jury properly directed could reach a particular conclusion (the Galbraith test),7 and further that it would be safe to leave the question to the jury (Galbraith plus).8 Neglect (considered further below) is not a conclusion in itself but is a finding recorded as part of the conclusion in Box 4. As with other conclusions, the coroner will have to be satisfied that the evidence justifies leaving neglect to the jury and that it is safe to do so. Decisions to leave or not to leave certain issues or conclusions to the jury are amenable to judicial review. It is rare for an application to be entertained before the conclusion of the inquest.9 It is also for the coroner to determine how to elicit the jury’s conclusions, for example by highlighting the issues in the case or by presenting a list of questions to the jury.10 It is for the jury to make findings of fact and reach a conclusion. When sitting alone, it is for the coroner to decide whether a short-form or a narrative conclusion is most appropriate to the case in question (following submissions from interested persons).

5 The previous version of the form (under the Coroners Rules 1984) contained additional conclusions now omitted from the current list of suggestions, namely want of attention at birth, attempted/self-induced abortion, death in a (named) disaster (having been the subject of a public inquiry), and execution of sentence of death. 6 Chief Coroner’s Guidance No 17 (n 4) para 7. 7 R v Galbraith [1981] 1 WLR 1039, (1981) 73 Cr App R 124 (CA). 8 R (Secretary of State for Justice) v HM Deputy Coroner for the Eastern District of West Yorkshire [2012] EWHC 1634 (Admin), para 23. 9 R (Cooper) v HM Coroner for North East Kent [2014] EWHC 586 (Admin). 10 R (Middleton) v HM Coroner for West Somerset [2004] UKHL 10, [2004] 2 AC 182, [2004] 2 WLR 800, [2004] Inquest LR 17, para 36.

Conclusions 285

The Chief Coroner’s Guidance states that wherever possible coroners should conclude with a short-form conclusion.11 This applies even in a complex case.12 If a narrative conclusion is used, it should be a brief, neutral, factual statement and should not express any judgment or opinion.13 Narrative conclusions are discussed further at Section III.B. below. Subject only to the duty on a coroner to report any matter where action is required to prevent risks of similar fatalities, neither the coroner nor the jury may express an opinion on any matter other than those required by section 10 or Form 2.14 The determination may not be framed in such a way as to appear to determine any question of civil liability or criminal liability of a named person.15

II. Legislation and Other Sources Coroners and Justice Act 2009 5. Matters to be ascertained (1) The purpose of an investigation under this Part into a person’s death is to ascertain— (a) who the deceased was; (b) how, when and where the deceased came by his or her death; (c) the particulars (if any) required by the 1953 Act to be registered concerning the death. (2) Where necessary in order to avoid a breach of any Convention rights (within the meaning of the Human Rights Act 1998 (c. 42), the purpose mentioned in subsection (1)(b) is to be read as including the purpose of ascertaining in what circumstances the deceased came by his or her death. (3) Neither the senior coroner conducting an investigation under this Part into a person’s death nor the jury (if there is one) may express any opinion on any matter other than— (a) the questions mentioned in subsection (1)(a) and (b) (read with subsection (2) where applicable); (b) the particulars mentioned in subsection (1)(c). This is subject to paragraph 7 of Schedule 5… … 9. Determinations and findings by jury (1) Subject to subsection (2), a determination or finding that a jury is required to make under section 10(1) must be unanimous.

11

Chief Coroner’s Guidance No 17 (n 4) para 26. ibid para 28. 13 R v HM Coroner for North Humberside and Scunthorpe, ex parte Jamieson [1995] QB 1, 24F. 14 CJA 2009, s 5(3). 15 CJA 2009, s 10(2). 12

286 Sir Neil Garnham and Kate Beattie (2) A determination or finding need not be unanimous if— (a) only one or two of the jury do not agree on it, and (b) the jury has deliberated for a period of time that the senior coroner thinks reasonable in view of the nature and complexity of the case. Before accepting a determination or finding not agreed on by all the members of the jury, the coroner must require one of them to announce publicly how many agreed and how many did not. (3) If the members of the jury, or the number of members required by subsection (2)(a), do not agree on a determination or finding, the coroner may discharge the jury and another one may be summoned in its place. 10. Determinations and findings to be made (1) After hearing the evidence at an inquest into a death, the senior coroner (if there is no jury) or the jury (if there is one) must— (a) make a determination as to the questions mentioned in section 5(1)(a) and (b) (read with section 5(2) where applicable), and (b) if particulars are required by the 1953 Act to be registered concerning the death, make a finding as to those particulars. (2) A determination under subsection (1)(a) may not be framed in such a way as to appear to determine any question of— (a) criminal liability on the part of a named person, or (b) civil liability. (3) In subsection (2) ‘criminal liability’ includes liability in respect of a service offence.

The Coroners (Inquests) Rules 2013 34. Record of the inquest A coroner or in the case of an inquest heard with a jury, the jury, must make a determination and any findings required under section 10 using Form 2. [See Schedule 1, paragraph 1 of these Rules for Form 2.]

Guidance Chief Coroner’s Guidance No 17, Conclusions: Short-form and Narrative, 30 January 2015. Chief Coroner’s Law Sheet No 1, Unlawful Killing, 11 September 2013. Chief Coroner’s Law Sheet No 2, Galbraith Plus, 11 September 2013.

Conclusions 287

III. Cases We refer below to some of the leading cases relevant to each of the short-form conclusions.

A. Short-form Conclusions (1) Accident or Misadventure

(i) R (Benton) v HM Coroner for Birmingham and Solihull (1998) 162 JP 807, [2000] Inquest LR 72 Keywords: Conclusions, accident/misadventure, medical care Benton considered the conclusion of accident or misadventure in the context of medical treatment: If unlawful killing is accepted as not being a possible verdict, the question arises as to what other verdicts were possible apart from death by natural causes. It is submitted on behalf of the Applicant that the jury could properly have concluded that this was death by accident or misadventure, or alternatively an open verdict would have been appropriate if the evidence was insufficient to allow a decision as to whether it was death by natural causes or death by accident or misadventure. The Applicant refers to the definition of misadventure in Jervis on Coroners (11th Ed.). At paragraph 13-24 which reads: ‘No distinction is drawn between accident and misadventure in the conclusion. It is sometimes suggested that “accident” connotes something over which there is no human control, or an unintended act, while “misadventure” indicates some deliberate (but lawful) human act which has unexpectedly taken a turn that leads to death. Even if this distinction exists in logic, it is clear that coroners have not observed it in practice, and accordingly, for statistical purposes, these conclusions are treated as being the same. The Divisional Court has encouraged this trend, treating the distinction between accident and misadventure as “without purpose and effect,” and suggesting the suppression of the latter in favour of the former. It is thus necessary to explain to the jury that “accident” can mean the unexpected result of a deliberate act, and that recording such conclusion does not deprive any person of any civil remedy he may otherwise have.’ Clearly this passage does represent the law on this matter (See R. v Portsmouth Coroner ex parte Anderson [1987] 1 WLR 1640 and R v. Inner South London Coroner ex parte Kendall [1988] 1 WLR 1186). However, that definition requires a careful approach in case where death has occurred in the course of medical treatment. It is necessary to contrast two possible situations. The first is where a person is suffering from a potentially fatal condition and medical intervention does no more than fail to prevent that death. In such circumstances the underlying cause of death is the condition that proved fatal and in such a case, the correct verdict would be death from natural causes. This would be the case even if the medical treatment that had been given was viewed generally by the medical profession as the wrong treatment. All the more so is this the case where such a person is not treated at all even if the failure

288 Sir Neil Garnham and Kate Beattie to give the treatment was negligent. Thus in such circumstances the recording of a verdict of death by natural causes is not in any way a finding that there was no fault on the part of the doctors. That question for the reasons already explained is not one that the inquest does, or is permitted to, address. On the other hand, where a person is suffering from a condition which does not in any way threaten his life and such person undergoes treatment which for whatever reason causes death. Then assuming that there is no question of unlawful killing the verdict should be death by accident, misadventure. Just as the recording of death by natural causes does not absolve the doctors of fault so the recording of death by accident/misadventure does not imply fault.

Other Cases R (Touche) v Inner London North Coroner [2001] EWCA Civ 383, [2001] QB 1206, [2001] Inquest LR 223—the Court considered the meaning of an ‘unnatural’ death. See the case summary in Chapter 12. (2) Alcohol/Drug Related Previously the form of inquisition included the conclusion of ‘dependent/non-dependent abuse of drugs’. This has been replaced by the conclusion of ‘alcohol/drug related’ in Form 2, Schedule to the Coroners (Inquests) Rules 2013.

(i) R (Kendall) v Inner South London Coroner [1988] 1 WLR 1186, [1989] 1 All ER 72 Keywords: Conclusions; alcohol/drug related The Divisional Court considered the appropriateness of a conclusion of death by acute abuse of a drug in a case where the deceased, aged 14, died after inhaling Tippex thinning fluid (the solvent trichloroethane). The deceased’s mother was greatly distressed by the stigma which she believed attached to the conclusion and sought to ensure that the conclusion made no reference to drugs. Per Simon Brown LJ at 1191H ff, with whom Parker LJ agreed: As it seems to me, two central considerations should be in mind when determining the proper approach to the various forms of verdict suggested in the notes to the scheduled form of inquisition. The first such consideration is the application within the coroner’s jurisdiction of a clearly established policy of avoiding so far as possible any unnecessary stigma to the memory of the deceased. It is a reflection of this policy that a verdict of suicide will only be entered if established beyond all reasonable doubt—if in truth there is no other possible conclusion to be drawn from the circumstances of the death. It was doubtless this same policy which occasioned the removal from the 1984 edition of the Coroners Rules of the suggested verdict of ‘chronic alcoholism’: such a verdict being needlessly offensive and wounding to the memory of the deceased. Rules 36(2) and 42 are further indications of such a policy existing in this part of our law. The other crucial consideration is the actual purpose of these various suggested forms of verdict. The primary if not indeed the sole purpose of entering a verdict of the kind here in question must surely be to alert the public to certain specific dangers. It is this desirable social end which, on occasion, outweighs the first consideration and justifies departure from the policy of not stigmatising the deceased.

Conclusions 289 Viewed in the light of those considerations, it seems to me plain that the verdict with which we are here concerned was both unnecessarily wounding to the deceased’s family and positively misleading in so far as it was designed to warn the public against the dangers of solvent abuse. It is flawed by the twin vices of being both offensive and yet uninformative. Its offensiveness is obvious: the very word ‘drugs’ evokes clear overtones of addiction and criminality. As to its being uninformative I do not accept for a moment that the general public would recognize within the expression ‘acute abuse of a drug’ this sort of casual glue-sniffing. Still less do I accept Professor Edwards’ conclusion: ‘It is in the public interest that inhalation of volatile solvents such as trichloroethane should be recognised as a form of drug abuse which can have an acutely or immediate fatal outcome.’ Rather I believe the inclusion within that sentence of the word ‘drug’ to be not merely optional but unjustifiable. It is moreover difficult to reconcile with Professor Edwards’ earlier comment under the heading ‘Terminology’ when he says the correct term for this activity is ‘volatile substance abuse,’ the term ‘solvent abuse’ being roughly synonymous, and the phrase ‘glue-sniffing’ being often loosely employed. It really cannot be in the public interest to publish a verdict which, so far from alerting people to the highly dangerous nature of this particular activity, is instead likely to mislead them. A press report of death by drug abuse must inevitably convey to the general public the sordid image of heroin or cocaine addiction rather than this boy’s casual stupidity. In short, such a verdict in the instant case seems to me to produce the worst of all possible worlds and I have not the least doubt that it should not stand. Mr. Coghlan for the coroner invited the court to give clear guidance as to whether solvents are or are not drugs for the purposes of coroners’ verdicts. He told us that in the past some coroners have treated them as such, others have not. It is to be hoped that this judgment will provide that guidance and ensure that henceforth solvent abuse deaths are not so designated. What verdict then should be entered upon such a death? In my judgment the lawful options are these. (1) Accident, or just possibly misadventure. Although commentators have hitherto suggested that these verdicts carry distinctive meanings—in which event misadventure might be thought the more appropriate of the two in the circumstances of the present case—Mann J. in the recent case of Reg. v Portsmouth Coroner, Ex parte Anderson [1987] 1 WLR 1640, 1646 suggested that the term misadventure ‘should now be given its quietus.’ I wish to say nothing to encourage its resurrection. (2) Any of the following expressions ‘Abuse of volatile substances,’ ‘solvent abuse,’ ‘sniffing Tippex thinners,’ ‘inhalation of Tippex thinners.’ (3) Any of the above terms could properly be used in combination. Thus it would be perfectly lawful to enter a verdict of ‘accidental death resulting from the inhalation of Tippex thinners,’ or ‘solvent abuse: inhalation of Tippex thinners.’ After all, the statutory obligation is merely to record ‘in concise and ordinary language’ the coroner’s verdict upon ‘how … the deceased came by his death,’ and this in the context of a form of inquisition in which, before entering his ‘conclusions as to death,’ the coroner has already recorded both ‘trichloroethane overdosage’ as the ‘injury or disease causing death’ and also ‘that the deceased sniffed Tippex thinners …’ as part of the entry under the heading ‘Time, place and circumstances at or in which injury was sustained.’ One might indeed be forgiven for wondering whether anything further than that was strictly required by way of verdict. Certainly no criticism could have been made of an inquisition recording ‘inhalation of trichloroethane’ as the ‘injury causing death’ and ‘solvent overdosage’ as the coroner’s conclusion: it seems to me that the two together really constitute the coroner’s conclusion as to ‘how the deceased came by his death’ and thus the verdict properly so called. And, indeed, it may be noted that in the standard form headed ‘Coroner’s certificate after inquest,’ attached to the form of inquisition itself, there twice appears a space for insertion of the ‘Cause of death’—one of these moreover under the general heading ‘Part IV. accident or misadventure …’—and the coroner completed both thus: ‘Trichloroethane overdosage—acute abuse of drugs.’

290 Sir Neil Garnham and Kate Beattie

(3) Industrial Disease

(i) R (BP Chemicals) v HM Coroner for South Glamorgan, Divisional Court, 01 January 1987, (1987) 151 JP 799 Keywords: Conclusions, industrial disease The case concerned the death of a former employee who had worked approximately 250–300 yards from a processing plant which had manufactured vinyl chloride monomer, a substance known to cause angiosarcoma of the liver to someone exposed to it. An issue arose as to the conclusion of industrial disease and whether the coroner had properly directed the jury as to the conclusion. The Court confirmed that the conclusion of industrial disease was not limited to a list of specific diseases set out in social security regulations. Kennedy J gave the judgment, with which Russell LJ agreed. At 803G: I am far from satisfied that a jury should be restrained from returning a verdict of industrial disease except in cases where those narrow criteria are satisfied. So far as I can ascertain, there is no statutory or common law provision which requires the coroner’s jury to return a verdict in any particular form … … ‘[I]ndustrial disease’ is just one of a list of suggested verdicts, and it would be somewhat surprising if it had a particular refined meaning. Of course I recognize that r.43 of the Coroners Rules does offer a definition of ‘industrial disease’ by reference to what is now the Social Security Act 1975, and if I am to look at all at the statutory definition I cannot accept the alternative submission made by Mr. Wyn Williams, namely that I need look only at the diseases listed in column 1 of the schedule to the 1980 Regulations, and not at the occupations set out in column 2 because reg. 2 of those Regulations, so far as it is material, provides that: ‘… each disease or injury set out in the first column of Part 1 of sch. 1 hereto is prescribed in relation to all persons who have been employed on or after July 5, 1948 in employed earner’s employment in any occupations set against such disease or injury in the second column of the said Part.’ In other words, both columns have to be read together in order to discover what is a prescribed disease, and on the facts of this case Mrs. Durbin never had such a disease, but in my judgment once the jury was satisfied that she died from angiosarcoma of the liver contracted as a result of exposure to VCM whilst in the employ of B.P. Chemicals (and Mr. Tillett realistically concedes that the jury by its verdict indicated that it was so satisfied) then, unless there was no evidence to support that conclusion, it was open to the jury to return a verdict of industrial disease. In other words, the coroner erred only in seeking to define industrial disease more narrowly than he need have done.

(4) Lawful/Unlawful Killing

(i) R (O’Connor) v HM Coroner for District of Avon [2009] EWHC 854 (Admin) Keywords: Unlawful killing, insanity, burden of proof After a row with his wife in Crete, the father pushed their children off a hotel balcony and threw himself after them. Their son died from his injuries. The father was tried for manslaughter in Greece, but acquitted on the basis of psychiatric reports. It was the psychiatrist’s opinion that the father had been suffering from temporary psychosis. At an

Conclusions 291

inquest into the son’s death, the coroner delivered a verdict of unlawful killing. The Court considered the appropriate standard of proof: 20. How then should a coroner direct a jury as to the standard of proof in a case such as the present where, insanity apart, a verdict of unlawful killing is obviously correct on the facts? The answer to that question will determine the answer to the equivalent question for the coroner himself, if there is no jury. Are the jury to be directed that, if the evidence would otherwise surely establish unlawful killing, that verdict is not available if the evidence shows on the balance of probabilities that at the time of the killing the perpetrator was legally insane? Or are they to be directed, where insanity is properly raised on the evidence, that insanity must be disproved and the other ingredients of unlawful killing proved, both to the criminal standard, before the jury could consider a verdict of unlawful killing? … 26. … The procedure at an inquest does not accord a would-be defendant the safeguards that he would have in a criminal trial. There is no defendant and therefore no one upon whom the relevant burden of proof might lie. It is not fair that a person should risk the stigma of a finding of unlawful killing—even if the verdict technically conceals identity—without those safeguards and without the right to have deployed on his behalf the case that he was legally insane when he perpetrated the otherwise unlawful act. Crucially, we consider that the relevant direction which the coroner would have to give to a jury would be contorted and unsatisfactory. In a criminal trial, the heart of the direction is that it is for the defendant to prove insanity on the evidence taken as a whole, not beyond reasonable doubt, but upon the balance of probabilities. At an inquest, the coroner would have to direct the jury along the lines that it is for them to decide whether they are sure that the killing was unlawful, except that the killing would not be unlawful if they concluded on the balance of probabilities on the evidence which the coroner had decided to adduce or had admitted that the person who perpetrated the killing was legally insane. If this formulation is somewhat contrived to make a point, the concept of applying a hybrid standard of proof, derived from a structure where a burden is on the defendant, to circumstances where there is no defendant is not satisfactory. The differences between a coroner’s inquest and a criminal trial necessitate a different standard of proof … 27. … [I]nsanity, properly raised, has to be disproved to the criminal standard to sustain a verdict of unlawful killing.

Reference should also be made in the present context to R v West London Coroner, ex parte Gray [1988] 1 QB 467, 477–78 and R v Wolverhampton Coroner, ex parte McCurbin [1990] 1 WLR 719, both of which are considered below.

(ii) R (Wilkinson) v HM Coroner for Greater Manchester South District [2012] EWHC 2755, (2012) 176 JP 665 Keyword: Unlawful killing This case addressed the question whether evidence of the commission of the criminal offence of causing death by careless driving contrary to section 2B of the Road Traffic Act 1988 was capable of justifying a verdict of ‘unlawful killing’ at an inquest. The D ivisional Court provided a history of the use of the verdict and held: 63. In our judgment, the main purpose of having a verdict of unlawful killing is to distinguish between those cases where there has been an accident of some kind (where, of course, someone may be to blame for it, even with some degree of criminality) and those cases where it would be an abuse of language to describe the events leading to death as simply an accident. Someone killed by murder, manslaughter or infanticide is killed either intentionally or by some obviously

292 Sir Neil Garnham and Kate Beattie criminal state of mind on the part of, or some negligence of the grossest kind by, the author of the killing. Someone killed by careless driving is killed as a result of an accident arising from, or at least contributed to by, the actions of the careless driver. Those actions may give rise to criminal consequences, but given the essential purpose and scope of an inquest, it is neither necessary nor appropriate to investigate and record that conclusion. 64. Applying those basic tenets of coroner law leads to the principled conclusion that causing death by careless or inconsiderate driving should not be treated as ‘unlawful killing’ for the purposes of the conclusion of an inquest whatever conclusion may be reached in other contexts. 65. We consider that that principled conclusion is supported by Parliament’s approach. The 1984 Rules were brought into force under the powers conferred by sections 26 and 27 of the Coroners (Amendment) Act 1926. Whilst it is correct to say that the Notes to the Rules are expressed in effect to be for guidance only (see Rule 60), if Parliament had at any stage thought that too restrictive an interpretation was being placed in practice upon the expression ‘unlawful killing’, it would have been open to it to change the phraseology of the Notes to indicate its view. It would not have required primary legislation to achieve this. However, at no stage has this been done. 66. Most significantly, it was not done following the introduction in 1991 of the offence of causing death by careless driving under the influence of alcohol or drugs. As an offence that is plainly morally more serious than what might be termed for this purpose ‘mere’ careless driving, a proposition reflected in the maximum sentence set by Parliament for these respective offences and, more recently, in the Sentencing Council Guidelines (see paragraph 56 above). The death of someone caused by that kind of driving is arguably closer to having arisen from manslaughter than is causing death by ‘mere’ careless driving and yet Parliament has not chosen to alter the guidance in the Notes. As we have indicated, this seems to us to be consistent with the principled approach to which we have referred: the death in such circumstances was still caused by an accident, albeit one arising from some carelessness caused or contributed to by the presence of drugs or alcohol. 67. Indeed Parliament had the opportunity again to amend the Notes to the Rules after creating the offence of causing death by careless (or inconsiderate) driving in 2006, but did not do so. However, the Act that created the offence (the Road Safety Act 2006) did amend sections 16 and 17 of the Coroners Act 1988 to include the new offence for the purpose of adjourning inquests where proceedings had been instituted (section 20(5)). This suggests that the effects that the creation of the offence should have on how inquest proceedings were conducted were considered at the time, but no step taken to suggest that the scope of the verdict of ‘unlawful killing’ should be enlarged. 68. Again, for our part, we see this as consistent with the principled view to which we have referred. 69. We are reinforced in our view by the general understanding of the meaning of the expression ‘unlawful killing’: there is an intrinsic strength to the expression and a connotation of the use of violence in contrast to a more neutral expression such as ‘causing death’. 70. We conclude, therefore, that the verdict of unlawful killing is restricted to murder, manslaughter (including corporate manslaughter) and infanticide.

(iii) R (Duggan) v HM Assistant Deputy Coroner for the Northern District of North London [2014] EWHC 3343 (Admin), [2015] 3 All ER 237, [2014] Inquest LR 232 Keywords: Conclusions, lawful killing The claimant sought to quash the finding of an inquest that her son had been lawfully killed by a police officer. The police had obtained intelligence that the deceased was part of a gang

Conclusions 293

known to use extreme violence, and that he was transporting a firearm in a taxi. The taxi was stopped by armed police officers. One of the officers shot the deceased, believing that he was holding a gun in a sock pointed in his direction. No gun was found on the deceased, but one was found on the ground some metres away. At the inquest, the coroner directed the jury to consider whether the officer ‘may’ have honestly believed that he needed to use force to defend himself. In answer to questions put to them, the jury found that the police had not done the best they realistically could to gather intelligence; the taxi had been stopped in a way that minimised possible recourse to lethal force; the deceased had had a gun with him immediately before the taxi was stopped, and that the gun was not in his possession when he was shot. By a majority verdict the jury concluded that the killing was lawful. The Divisional Court considered an argument that the Court should conclude, whilst leaving unlawful killing untouched, that lawful killing as a conclusion is available only if the jury concludes there was no civil wrong. The claimant argued that it would be confusing to state that a killing was lawful when, as a matter of the law of tort, it might not be. The Court held: 68. In our judgment, this argument is inconsistent with the statutory regime governing inquests. 69. Aligning a conclusion of lawful killing with the civil definition would result in the inquisition appearing to determine civil liability. That is prohibited by section (10)(2)(b) of the 2009 Act. However, the objection goes deeper. There is continuity in the statutory treatment of the two verdicts or conclusions which can be traced from the 1887 Act to the 2013 Rules which suggests that in all the statutory references to justifiable and then lawful killing, Parliament has intended such a conclusion to amount to a positive finding that the death did not result from homicide. 70. There is no dispute (nor could there be) that during the period when an inquest played its formal role in committing a person considered guilty of murder or manslaughter for trial, it was not concerned with questions of civil liability. That proposition is not affected by the fact that almost until the end of that period the two tests were thought to be the same. Although the academic debate referred to by Lord Lane in Gladstone Williams had been raging for years, Morgan was not decided until 1975 and the power of committal on the inquisition was abolished in 1977. The change of nomenclature from ‘justifiable or excusable homicide’ to ‘lawful killing’ made in 1980 was a change of form, not substance, which was carried forward by the 1984 Rules and is preserved in the 2013 Rules. 71. Furthermore, it would to our minds be quite extraordinary for Parliament to have intended that in a single inquest where questions of unlawful and lawful killing very frequently arise in tandem the jury should be given two different definitions of what would appear at first blush to be two sides of the same coin. It would be a recipe for confusion in the jury and mystification in any section of the public interested in its outcome. 72. We conclude that the long held understanding, reflected in Sharman, Bennett and by the editor of Jervis on Coroners, that a conclusion of lawful killing is one which would amount to the crime of murder, manslaughter or infanticide but for the presence of an additional factor which justifies it, is correct. It signifies the jury’s conclusion not only that they are not sure that a homicide was committed but also a conclusion that it probably was not. It says nothing about civil liability.

Other Cases R v Bennett [2014] EWCA Crim 2652, [2015] 1 Cr App R 16, [2015] Crim LR 373—the Court of Appeal considered that the coroner was right to take the view that a verdict of unlawful killing could not safely have been left to an inquest jury.

294 Sir Neil Garnham and Kate Beattie

R (Anderson) v HM Coroner for Inner North Greater London [2004] EWHC 2729 (Admin), [2004] Inquest LR 155—the Court of Appeal held that the coroner had not erred in leaving the conclusion of unlawful killing to the jury at an inquest into the death of a patient who had been taken to hospital and restrained by police officers while waiting for a doctor, during which time he suffered a cardiac arrest which put him in a coma. The Court held that it was vitally important that the jury receive a careful direction as to causation in relation to any unlawful killing conclusion. (5) Natural Causes

(i) R (Touche) v Inner London North Coroner [2001] EWCA Civ 383, [2001] QB 1206, [2001] 3 WLR 148, [2001] 2 All ER 752, [2001] Inquest LR 223 Keywords: Conclusions, natural causes The Court of Appeal considered the distinction between natural and unnatural deaths in the context of whether or not an inquest should be held. The background circumstances were that the deceased Laura Touche had given birth to twins, delivered by caesarean section, on 6 February 1999. She died on 15 February 1999 from a cerebral haemorrhage, the result of severe hypertension, possibly secondary to eclampsia. There was medical evidence which suggested that if her blood pressure had been monitored in the immediate postoperative phase, her death would probably have been avoided. The issue for the Court was whether the death was natural or unnatural and whether an inquest must be held into the death. 46. … But undoubtedly there will be cases which fall outside the category of ‘neglect’ and yet appear to call for an inquest on the basis already indicated, namely, cases involving a wholly unexpected death from natural causes which would not have occurred but for some culpable human failure, a category of cases already perhaps recognised by the editors of Halsbury’s Laws and Statutes. It is the combination of their unexpectedness and the culpable human failing that allowed them to happen which to my mind makes such deaths unnatural. Deaths by natural causes though undoubtedly they are, they should plainly never have happened and in that sense are unnatural. 47. An inquest will, of course, be held only if the coroner has reasonable cause to suspect such a combination of circumstances. That does not mean that he will have to make detailed investigations into every hospital death. Mr Burnett’s fears in this regard are to my mind misplaced. Nor would I expect such a view of the law to involve any substantial increase in the number of inquests now requiring to be held.

Other Cases R (Thomas) v Inner North London Coroner [1993] QB 610, [1993] 2 WLR 547, [1993] 2 All ER 381—the Court of Appeal held that a coroner was entitled to regard a death as not unnatural in circumstances where the deceased died following an asthmatic attack where an ambulance had arrived late, and there was evidence that her life could have been saved if she had arrived at the hospital earlier. R (Smith) v Avon Coroner (1998) 162 JP 403, [2000] Inquest LR 63—Ognall J held that the coroner was obliged to consider whether a death in hospital by natural causes, following a delay of 10 hours in performing a CT scan and reaching diagnosis, was unnatural such that an inquest needed to be held.

Conclusions 295

(6) Open Conclusion

(i) In Re Tabarn [1998] EWHC (Admin) 8, [2000] Inquest LR 52 Keywords: Conclusions, open conclusion The deceased, a woman aged 24, died in her sleep following her participation in a hypnotism stage act. The direct cause of death was pulmonary oedema and there were indications that she may have suffered a fit. The applicant relied on new evidence, from a highly qualified specialist in the field of hypnosis, to contend that the coroner should have recorded an open verdict and requested a new inquest. The Court dismissed the application. Simon Brown LJ said this: 46. The important point to make is that open verdicts are to be discouraged, save where strictly necessary. As is said in para 13 (32) of Jervis on Coroners 11t Ed p253: ‘If there is insufficient evidence to record any of the other suggested conclusions, an “open verdict” may be recorded. This includes the case where there is evidence that it fails to reach the required standard of proof. It should be noted that an open verdict is thus only to be used in the last resort if there is insufficient evidence to enable the coroner or the jury to reach one of the other conclusions. The fact that there may be uncertainty as to other parts of the inquisition, for example as to the precise cause, time or place of death, does not authorise recording an open verdict if there is sufficient evidence to record how the deceased came by his death. In other words the coroner or jury should not fail to reach a positive conclusion merely because there was some doubt on some minor point.’ 47. I do not suggest that the issue as to the relevance of hypnosis here can be discarded as ‘some minor point’, and what is to be emphasises the point that an open verdict should only be used as a last resort, notably when the coroner is simply unable to reach any conclusion on the balance of probabilities as between 2 competing verdicts.

(7) Road Traffic Collision The conclusion of ‘road traffic collision’ was included for the first time in the Coroners (Inquests) Rules 2013. (8) Stillbirth Previously the form of inquisition included the conclusion of ‘want of attention at birth’. This has been replaced by the conclusion of ‘stillbirth’ in the Coroners (Inquests) Rules 2013. (9) Suicide In order to reach a conclusion of suicide, two key elements must be satisfied: (1) that the deceased took his or her own life; and (2) he or she intended to do so. It must also be proved to the requisite standard of proof, namely the criminal standard. This is a hangover from a time when suicide was still a criminal offence.16

16

R (Gray) v West London Coroner [1988] QB 467.

296 Sir Neil Garnham and Kate Beattie

(i) R (Barber) v City of London Coroner [1975] 1 WLR 1310, [1975] 3 All ER 538 Keywords: Conclusions, suicide The deceased was the residential caretaker of a three-storey office block which had a flat roof. The railing around the roof would effectively prevent accidental falls. On the day of his death the deceased and his wife went out for a few drinks. On their return the deceased went up to the roof, as he usually did. He fell from the roof to the street below and sustained fatal injuries. At the inquest, his widow gave evidence that at the time of his death, he seemed unaffected by alcohol and to be acting normally. There was no evidence of any intention to commit suicide. The coroner concluded that the cause of the death was suicide. The deceased’s mother applied to quash the verdict. Lord Widgery, CJ, summarised the coroner’s approach and said, at 1313D ff: If that is a fair statement of the coroner’s approach, and I sincerely hope it is because I have no desire to be unfair to him, it seems to me to fail to recognise what is perhaps one of the most important rules that coroners should bear in mind in cases of this class, namely, that suicide must never be presumed. If a person dies a violent death, the possibility of suicide may be there for all to see, but it must not be presumed merely because it seems on the face of it to be a likely explanation. Suicide must be proved by evidence, and if it is not proved by evidence, it is the duty of the coroner not to find suicide, but to find an open verdict. I approach this case, applying a stringent test, and asking myself whether on the evidence which was given in this case any reasonable coroner could have reached the conclusion that the proper answer was suicide. I take the view that no reasonable coroner properly understanding the obligation to prove suicide could have found suicide in this case. There is, as I see it, no single fact which definitely points to the deliberate taking of this man’s life and every possibility that the matter was an accident and no more. I would impress upon coroners that if they find themselves compelled to return an open verdict, that is not in any sense a reflection on them. It does not suggest that they are not doing their job properly or are insufficiently perceptive. There are many, many cases where there is real doubt as to the cause of death and where an open verdict is right, and where anything else is unjust to the family of the deceased.

(ii) R (Lagos) v HM Coroner for City of London [2013] EWHC 423 (Admin) Keywords: Conclusions, suicide The deceased was found dead at the bottom of a deep well in the Barbican in London. On the walkway above, there was a metal and glass barrier, to stop pedestrians from falling into the well. The police gave evidence that there were marks on the bar at the top of the barrier which were consistent with someone sitting on the bar with their hands resting on it. Mrs Lagos’ fingerprints were found on the bar. There was no evidence of any other person being involved in her death, and no sign of any attack. The deceased had a history of depression and anxiety. The coroner held that since no one saw the fall, an accident could not be ruled out; she might have sat on the bar and slipped backwards, or been gently pushed by a third party, although he considered that was highly unlikely. The deceased’s husband applied for judicial review of the verdict of the inquest.

Conclusions 297

Lang J held: 41. I agree with the Claimant that the circumstances of her death, combined with the evidence of her mental state in the period leading up to her death, makes suicide the most probable explanation. But, in law, the Defendant had to be sure that Mrs Lagos intended to commit suicide, and did in fact do so. All other possible explanations for the death had to be excluded. The Defendant has been entrusted with making that judgment, and his conclusion can only be challenged on the basis that no reasonable coroner could have reached this conclusion on the evidence. This is a high threshold. It is not enough for the court to decide that it would have come to a different conclusion or that another coroner might have come to a different conclusion. In my judgment the claimant has failed to establish that the Defendant’s verdict was irrational or perverse.

B. Neglect Neglect has been defined as a gross failure to provide adequate nourishment or liquid, to provide or procure basic medical attention or shelter or warmth for someone in a dependent position (because of youth, age, illness or incarceration) who cannot provide it for him or herself.17 Neglect is a finding which may be recorded as part of the inquest conclusion. It is not a primary cause of death. It has a narrower meaning than the duty of care in the law of negligence.18 The threshold, though, is the same: it must be proved on the balance of probabilities.19 Not only is it necessary to prove that there was a gross failure to provide basic care, but it must also be shown that the failure caused or contributed to the death. There must be a clear and direct causal connection between the conduct described as neglect and the cause of death, and causation must be proved to the requisite standard of proof.20 The neglect must have materially contributed to the death, although it is not necessary to show that the person would have survived, if it can be shown that the care would have prolonged life.21

(i) R (Jamieson) v HM Coroner for North Humberside and Scunthorpe [1995] QB 1 Keywords: Conclusions, neglect The case remains the leading case on ‘neglect’ in inquest conclusions. The background facts were that the deceased, Michael Jamieson, took his own life while serving a long sentence of imprisonment. At the inquest the coroner directed the jury not to return a verdict in which the words ‘lack of care’ formed a part. The jury went on to find that the deceased killed 17 Jamieson (n 13) 24. In R (Scott) v HM Coroner for Inner West London (2001) 165 JP 41, para 23, Keene LJ said that the passages in Jamieson ‘are not to be treated as if they were statutory enactments. They are part of the process of judicial interpretation of the law, which is a developing process. Nonetheless they represent a valuable distillation of the case law on the subject’. 18 R (Stringer) v HM Coroner for South Yorkshire (1993) 17 BMLR 92, cited at para 76 of the Chief Coroner’s Guidance on Conclusions. 19 R (Khan) v HM Coroner for West Hertfordshire and Chief Constable of Hertfordshire Constabulary [2002] EWHC 302 (Admin), para 43. 20 ibid. 21 ibid.

298 Sir Neil Garnham and Kate Beattie

himself by hanging. His brother brought a challenge by way of judicial review, arguing that the coroner had wrongly directed the jury not to consider a verdict of or a reference to lack of care. The judgment of Sir Thomas Bingham MR in the Court of Appeal culminates with 14 ‘general conclusions’ following a survey of statute and case law. At the time the possible conclusions in the statutory form of inquest included the option of adding the words ‘and the cause of death was aggravated by lack of care/self-neglect’. These words do not appear in Form 2, the record of inquest in the Schedule to the Coroners (Inquests) Rules 2013, and the phrase ‘lack of care’ is no longer used, but the principles set out in Jamieson on neglect remain applicable (at 25): (8) Much of the difficulty to which verdicts of lack of care have given rise appear to be due to an almost inevitable confusion between this expression and the lack of care which is the foundation for a successful claim in common law negligence. Since many of those seeking that verdict do so as a stepping-stone towards such a claim the boundary is bound to become blurred. But lack of care in the context of an inquest has been correctly described as the obverse of self-neglect. It is to be hoped that in future the expression ‘lack of care’ may for practical purposes be deleted from the lexicon of inquests and replaced by ‘neglect.’ (9) Neglect in this context means a gross failure to provide adequate nourishment or liquid, or provide or procure basic medical attention or shelter or warmth for someone in a dependent position (because of youth, age, illness or incarceration) who cannot provide it for himself. Failure to provide medical attention for a dependent person whose physical condition is such as to show that he obviously needs it may amount to neglect. So it may be if it is the dependent person’s mental condition which obviously calls for medical attention (as it would, for example, if a mental nurse observed that a patient had a propensity to swallow razor blades and failed to report this propensity to a doctor, in a case where the patient had no intention to cause himself injury but did thereafter swallow razor blades with fatal results). In both cases the crucial consideration will be what the dependent person’s condition, whether physical or mental, appeared to be. (10) As in the case of self-neglect, neglect can rarely, if ever, be an appropriate verdict on its own. It is difficult to think of facts on which there would not be a primary verdict other than neglect. But the notes to form 22 in the Rules of 1984, although in themselves of no binding force, are correct to recognise that neglect may contribute to a death from natural causes, industrial disease or drug abuse. Want of attention at birth, also mentioned in the notes, may itself be regarded as a form of neglect. A verdict that, for instance, ‘the deceased died from natural causes [or industrial disease, or drug abuse] to which neglect contributed’ would seem perhaps more apt than a verdict that ‘the deceased died from natural causes [or industrial disease, or drug abuse] aggravated by neglect,’ since ‘aggravated’ in this context means ‘made worse,’ and in truth the neglect probably did not make the fatal condition worse but sacrificed the opportunity to halt or cure it. (11) Where it is established that the deceased took his own life, that must be the verdict. On such facts, as the applicant in the present case accepted, there is no room for a verdict of neglect (or, as he would have put it, lack of care). It is also inappropriate in such a case, as the applicant also accepted, to describe that cause of death as aggravated by neglect (or lack of care). On certain facts it could possibly be correct to hold that neglect contributed to that cause of death, but this finding would not be justified simply on the ground that the deceased was afforded an opportunity to take his own life even if it was careless (as that expression is used in common speech or in the law of negligence) to afford the deceased that opportunity. Such a finding would only be appropriate in a case where gross neglect was directly connected with the deceased’s suicide (for example, if a prison warder observed a prisoner in his cell preparing to hang a noose around his neck, but passed on without any attempt to intervene).

Conclusions 299 (12) Neither neglect nor self-neglect should ever form any part of any verdict unless a clear and direct causal connection is established between the conduct so described and the cause of death.

(ii) R (Clegg) v HM Coroner for Wiltshire (1997) 161 JP 521, [2000] Inquest LR 96 Keywords: Conclusions, neglect The Divisional Court considered that a continuous sequence of shortcomings could amount to neglect: 23. The important points to be gleaned from this passage in the context of this application seem to me to be the following: Failure to provide appropriate medical attention to a dependent patient in hospital is capable of constituting ‘neglect’. Where it is established that the deceased took his or her own life, that must be the verdict, but: Rare circumstances can exist where it is appropriate to make a finding that neglect was a cause that contributed to the death of a person who killed himself or herself. 24. The example given by the Master of the Rolls of such circumstances was one of neglect which preceded the act of suicide. What he did not consider was a case such as the present, where the act of suicide did not result immediately in death, but in the victim becoming a patient in hospital dependent on the care of the hospital staff. In such circumstances it is much easier to conceive of neglect having a direct causal connection to the death. 25. In Wright the deceased died when unconscious under general anaesthetic in the course of dental surgery, as a result of an obstruction to his airway. Tucker J held, having referred to Jamieson, that there was no basis in such circumstances for contending that the verdict of accident should have been that of neglect. I think it arguable that that conclusion did not inevitably follow from Jamieson, but, in any event, the facts of that case are very different from the present case. In this case the deceased was dependent upon the hospital staff for a period of nearly 12 hours before she died. If the findings of the Review and of the Panel are correct, and there has been no suggestion that they are not correct, the care which she received during that period suffered from a continuous sequence of shortcomings. Those findings suggest that it is at least possible that, but for those shortcomings, her life would have been saved. In these circumstances my conclusion is that, applying the approach in Jamieson, it is possible that if a new inquest were to be held the verdict would be that Lucy killed herself but that neglect contributed to her death.

(iii) R (Chief Constable of Staffordshire) v HM Coroner for Coventry (2000) 164 JP 665, [2000] Inquest LR 35 Keywords: Conclusions, neglect This was a challenge by the Chief Constable of Staffordshire Constabulary to the jury conclusion of accidental death aggravated by neglect. The deceased was an alcoholic who had been arrested by police. He was too drunk to be interviewed. His family told the police that he would likely have ‘the shakes’. He was not seen by a doctor. The next morning his hands were shaking so much that he spilled two cups of tea. While in the exercise yard of the police station he had a fall, which caused him to have a fit from which he subsequently died.

300 Sir Neil Garnham and Kate Beattie

The High Court dismissed the challenge. In his judgment, Mr Justice Tomlinson reviewed the case law on neglect, including the requirement of causation. While stating that the decision turned on the particular facts of the case and that he was not laying down guidelines, Mr Justice Tomlinson’s judgment nevertheless contains a useful overview of the law on neglect: 38. So far as concerns the question of neglect there is, I think, considerable force in [counsel for the Chief Constable] Mr. Quirk’s submissions. However, the starting point of the argument is the jury’s ambiguous conclusion and in such an enquiry it is, I think, possible to be over-analytical. A lack of care in the context of an inquest does not connote the lack of care which is the foundation for a successful claim in common law negligence. It is the obverse of self-neglect; hence the now preferred use of the word ‘neglect’ rather than ‘lack of care’ (see per Sir Thomas Bingham M.R. in R. v. Her Majesty’s Coroner for North Humberside and Scunthorpe ex parte Jamieson [1994] 3 WLR 82 at page 100). Thus I am not concerned, and more relevantly the jury was not concerned, with looking for circumstances which would give rise to a common law duty of care. The jury concluded that the deceased died because of an unrestrained fall in the exercise yard. Given in particular the information imparted to the police as to the possibility of his suffering the shakes, and given the appearance of the deceased during the tea-drinking episode on the morning of 5th August, there was, in my judgment, material on the basis of which a properly directed jury could conclude that the deceased ought not to have been left unsupervised in the exercise yard. I must of course consider the question of causal connection separately, but it is, I think, no, or at any rate an insufficient, answer to the conclusion that I have just expressed to point out that the fit which the deceased suffered could, on the evidence, have been caused by natural or spontaneous causes related to the brain tumour, whereas the facts and matters from which the finding of neglect is to be inferred are matters related to alcoholism or withdrawal from alcohol. The gravamen of the jury’s finding may have been quite simply that, at any rate as from about 9 o‘clock on the morning of 5th August, the deceased should not have been left in the exercise yard unsupervised. That the risk against which they may have thought it appropriate to guard may have eventuated in an unexpected manner— i.e., a tumour-induced fit as opposed to an alcoholism-induced fit—does not, I think, detract from the broad thrust of the conclusion. Still less can it be appropriate to regard that finding as unsafe when, in point of fact, the jury may indeed have concluded that the fit was induced by causes related to alcoholism. 39. This, however, leaves the question of causal connection. In essence, Mr. Quirk’s submission is that, pursuant to the conclusions set out by the Master of the Rolls in Jamieson, a verdict that the deceased died from an accident to which neglect contributed should only be left to the jury where the neglect has intervened between the accident and death. Put another way, neglect could only be said to aggravate or to contribute to a death which was already in train at the time of the neglect. Thus, said Mr. Quirk, lack of care in supervising the bathing party in the case of the child who died in the Serpentine did not aggravate or contribute because there was at the time of the relevant omission no death in train which it could aggravate or to which it could contribute. (Compare the example given by Cumming-Bruce L.J. in R v. Southwark Coroner ex parte Hicks [1987] 1 WLR 1624 at page 1633.) Mr. Quirk submitted that unless the circumstances in which a neglect rider could be considered were closely circumscribed in this way, the opportunity would be opened for effectively an infinite regression so far as concerned matters which might have some bearing on the cause of death, particularly, perhaps, in cases involving disease, addiction or self-neglect. No properly directed jury could have concluded, submitted Mr. Quirk, that there was here a clear and direct causal connection between the neglect and the death. At most it could be said that the police may have afforded to the deceased the opportunity to fall over, but that that neglect (if such it was) could not be said to be directly connected to the deceased’s death.

Conclusions 301 40. Mr. McCahill [counsel for the coroner] for his part contended that there was no warrant for the ‘death in train’ gloss upon the principles enunciated by the Master of the Rolls in Jamieson, which he cautioned me not to interpret as if they were in statutory form. There was, he said, no reason in principle why neglect should not be regarded as contributing to a death, notwithstanding that it preceded the accident which was itself the immediate cause of death. Mr. McCahill also pointed out that a verdict of unlawful killing may be returned where the unlawful act or the act of gross negligence has more than minimally, negligibly or trivially contributed to the death. It would be surprising, said Mr. McCahill, if the test for a neglect rider is more circumscribed in its ambit than is that for an unlawful killing verdict. 41. The key to the proper approach here is, in my judgment, an appreciation that the expression ‘clear and direct causal connection’ was not used by the Master of the Rolls in the Jamieson case in the same sense in which such words might be used when considering whether a breach of contract or a tort has caused recoverable damage, or, perhaps most pertinently when considering whether the cause of a loss is to be found within a list of insured or excluded perils in a policy of insurance. If, for example, I were directing myself by reference to the principles enunciated by the House of Lords in Leyland Shipping Company Limited v. Norwich Union Fire Insurance Society Limited [1918] AC 350 as appropriate when considering questions of causation in relation to a policy of marine insurance, I do not think that it would occur to me to conclude that the death of the deceased had here been caused by any conduct of the police. For the avoidance of doubt I should emphasise that any view I express in this connection could not be of any relevance in any proceedings which may hereafter be brought as between the parties presently before me. The parties have not argued, and I am not concerned to decide, any questions which have any bearing on the establishment of liability for the death of the deceased. I make the point, however, to emphasise that the causal connection which is relevant in the context of consideration by an inquest jury of the addition of a neglect rider is, in my judgment, not the same as the causal connection for which one may look in the context of other, perhaps more familiar, enquiries. The touchstone in the present context is, I believe, the opportunity of rendering care, in the narrow sense of that word, which would have prevented the death. (See again per Croom-Johnson L.J. in the Hicks case at page 1633.) That does not mean that a conscientious person would necessarily have done that which would have successfully prevented death. The question is whether he had the opportunity of doing something effective. Phillips L.J. expressed the same concept in R v. Her Majesty’s Coroner for Wiltshire ex parte Clegg [1997] 161 J.P. 521 at page 52922… … 44. It would in my judgment be unwise, particularly for a judge at first instance, to seek to prescribe hard and fast rules as to the circumstances in which a neglect rider may be left to an inquest jury. I am unpersuaded that it is possible to be quite so prescriptive as Mr. Quirk suggests. Cases will be infinitely variable. A test of intervention between accident and death might well suffice in 99 percent of cases, but not in the equally important one percent. 45. In any event, on the facts of the present case, which are somewhat striking, it was, I think, possible for a properly directed jury to conclude that as from the tea spilling incident on the morning of 5th August, which itself has to be seen in the light of the warning of the previous evening, there existed circumstances in which, had certain steps been taken, it is at least possible that Kevin McLaughlin would not have died. The jury could, in my judgment, have concluded that as from that moment, even if not earlier, there were events in train which could be regarded as leading to the death, such that they could regard as established in the relevant sense a clear and direct causal connection between the conduct of the police and the death. 22

See the citation in R (Clegg) v HM Coroner for Wiltshire (1997) 161 JP 521, [2000] Inquest LR 96.

302 Sir Neil Garnham and Kate Beattie 46. I should emphasise that I regard this as a decision turning on the particular facts of this case and not as laying down guidelines, which are to be found in the appellate decisions to which I have already referred.’

(iv) Cleo Scott v HM Coroner for Inner West London [2001] EWHC Admin 105, (2001) 165 JP 417, (2001) 61 BMLR 222, [2001] Inquest LR 1 Keywords: Conclusions, neglect, prisons Scott concerned an inquest into the death of a prisoner who hanged himself by his shoe laces in his cell at HMP Wandsworth on 1 February 2000. Although identified as a paranoid schizophrenic and concerns having been expressed that he had suicidal tendencies, and his shoelaces having been removed, the shoelaces were subsequently returned to him. The issue arose as to whether the conclusion of neglect should have been left to the jury on the basis of an inadequate medical examination leading to the shoelaces being returned to the deceased. The Court of Appeal held that the conclusion of neglect should have been left to the jury. Judgments were delivered by Penry-Davey J and Keene LJ. Penry-Davey J: 13. In my judgment the submissions of the claimant that a verdict incorporating an element of neglect should have been left to the jury are well founded. It is pointed out that the solicitor for the family when pressed by the coroner did not seek such a verdict, but, the proceedings being inquisitorial in nature, it was for the coroner to decide whether there was evidence fit to be left to the jury in respect of such a verdict. In my judgment he was wrong in concluding that there was no such evidence. The deceased was known to be a paranoid schizophrenic, to have expressed the intention to commit suicide and to have tried to harm himself. In the light of that, preventive measures had been taken in that his shoelaces were removed. When Dr Pothalingam examined the deceased he noted that he was still hearing voices. Against that background at a later stage his shoelaces were returned and no special observation was directed. It was those shoelaces that he used to take his own life. The illustration given in Jamieson by the Master of the Rolls of the mental nurse observing that a patient had a propensity to swallow razor blades and failing to report the propensity to a doctor in a case where the patient had no intention to cause himself injury but did thereafter swallow razorblades with fatal results is in my judgment an illustration similar in principle to the course of events in this case. The restoration of shoelaces to the deceased combined with the failure to keep the deceased under proper observation resulted in his death, and in my judgment there was evidence of a gross failure to provide medical attention where the mental state of the deceased obviously called for such attention.

He also cited with approval Tomlinson J’s comments in the Chief Constable of Staffordshire Police on the clear and direct causal connection between the conduct and the cause of death. He concluded: 15. … [I]n my judgment there was here evidence of a clear and direct causal connection between the conduct of the prison authorities and the cause of death. It is pertinent to add that this case lays down no new issue of principle; it does involve the application of principle set out in Jamieson to the particular and materially different facts of this case.

Keene LJ: 27. As to whether the failings on the part of those at HMP Wandsworth were sufficiently pronounced as to allow a verdict that the death was contributed to by neglect, what is striking is the

Conclusions 303 substantial amount of knowledge those persons had about Mr Craig’s condition. It was known to them that he had been diagnosed as a paranoid schizophrenic; that he had attempted to harm himself on at least one occasion in the past, had expressed suicidal thoughts and had tried to open his wrists at court on 31 January (see the probation officer’s Prisoner Warning Notice); that a Self Harm At Risk Form (2052 SH) referred to his fear that he might harm himself; that those responsible for him at court on 31 January had judged it desirable to remove his shoelaces, put him in a cell with another inmate and place him on a 15 minute watch; and that when seen by Dr Pothalingam at Wandsworth at 7pm that same day he was still hearing voices. That doctor, according to his evidence, judged him to be a suicide risk, but did not think that anything was likely to happen ‘imminently’, because Mr Craig seemed at that time to be in a happy mood and not depressed. 28. Possessed of all that information, the decision was made merely to send him to the health-care centre under general observation. As no direction was given to remove shoelaces or other ligatures from him, his trainer laces were returned to him. He was put in his cell on his own. No observations at specific intervals were required. 29. All this seems to have flowed from the views formed by the medical practitioners at the prison, but that in itself, while relevant, cannot rule out neglect. There have been a number of cases where there had been medical attention but where neglect remained a possible element in a verdict: R -vH.M. Coroner for Swansea and Gower, ex p. Chief Constable of South Wales [2000] 164 J.P. 191; R -v- H.M. Coroner for Wiltshire, ex p. Clegg [1997] 161 J.P. 521. Omissions on the part of medical practitioners are capable of forming part of the total picture which amounts to neglect.

(v) R (Longfield Care Homes) v HM Coroner for Blackburn [2004] EWHC 2467 (Admin), [2004] Inquest LR 5 Keywords: Conclusions, neglect, civil law Longfield concerned the inquest into the death of Mrs Jessie Hall, aged 81, following a fall from an open window at Longfield Residential Home, a home for elderly mentally disabled people. The High Court considered the distinction between ‘neglect’ in the inquest context and negligence in civil law: 26. There is no criticism of the coroner’s opening statements of the elements necessary to support a verdict of accident contributed to by neglect. But the remainder is, in my view, open to serious criticism. Neglect in this area of the law is a term of art, as Lord Bingham re-stated in R (Middleson) v West Somerset Coroner [2004] 2 WLR 800 at 815A. He explained it more fully in R v Her Majesty’s Coroner for North Humberside and Scunthorpe ex parte Jamieson [1995] QB 1 at page 24G to 25D as follows23… Cases in which neglect may be found to have contributed to death by self-harm or accident will be rare and will arise only where neglect was gross and a clear or direct causal connection is established: see Lord Bingham’s judgment at page 25H to 26A. That they can arise, however, is shown by the judgment in R v Her Majesty’s Coroner for Birmingham ex parte the Secretary of State for the Home Department [1990] 155 JP 107, which was summarised in Jamieson at page 20B to 20F. One of the instances given was as follows: ‘… a verdict of lack of care could be appropriate in cases where not merely the deceased’s physical condition, but his mental condition was the true cause of his death, as where a deranged man,

23 See

Jamieson (n 13).

304 Sir Neil Garnham and Kate Beattie incapable of forming any intention, and known to be in such a condition that he required constant care, is neglected and jumps through a window to his death.’ 27. The direction on neglect given by the coroner did not adequately meet Lord Bingham’s test. It centred upon the lack of a risk assessment. The coroner identified that as the principle element of possible gross neglect, which the jury might wish to consider. It is conceded by Mr Hough, for the coroner, that, in so doing, he identified something which more accurately fell to be considered as negligence in civil law, rather than neglect in the law relating to inquests. In my judgment, his concession was right. The passage is, taken as a whole, only really capable of being read as being addressed to negligence. The jury may well have been misled by it into finding neglect where, in fact, what they were finding was negligence. This aspect of the verdict, dependent as it may well be upon this feature of the summing-up, cannot stand. Nor, in my view, can a simple verdict of accidental death. The situations considered by Lord Bingham in Jamieson did not include the circumstances which, by their finding, the jury found to have obtained here, namely death caused by the progress of a natural disease, when that progression was, or may have been, accelerated by accidental injury.

Other Cases See also R (Touche) v Inner London North Coroner (CA) [2001] EWCA Civ 383, [2001] QB 1206, [2001] Inquest LR 223 and N (a child) v HM Coroner for City of Liverpool [2001] EWHC 922 (Admin), [2001] Inquest LR 249, both discussed in Chapter 12.

C. Narrative Conclusions As stated in the overview, where a narrative conclusion is used, it should be a brief, neutral, factual statement. It should not express any judgment or opinion.24 However, a judgmental conclusion of a factual nature, directly relating to the circumstances of the death, and which does not identify any individual or address any issue of criminal or civil liability, is permitted.25 Narrative conclusions must be directed to the issues which are central to the cause of death.26 The coroner (or jury) does not have to state a conclusion on every issue raised. The drafting of a narrative conclusion is relatively straightforward where the coroner sits alone; it can be more difficult where he or she sits with a jury. In an Article 2 inquest where a jury is empanelled, the conclusion must be sufficient to enable the jury to express their conclusion on the central issues canvassed at the inquest.27 A short-form conclusion may be sufficient but frequently a narrative conclusion will be required in order to satisfy those requirements including, for example, a conclusion on the events leading up to the death or on relevant procedures connected with the death. It is appropriate for the jury to deal with factual issues, including factual issues relevant to the exercise of the coroner’s power under regulation 28,28 but the value of a jury’s views 24

ibid 24F. Middleton (n 10) para 37. 26 R (Allen) v HM Coroner for Inner North London [2009] EWCA Civ 623, [2009] Inquest LR 187, para 33. 27 Middleton (n 10) para 20. 28 R (Lewis) v HM Coroner for the Mid and North Division of Shropshire [2009] EWCA Civ 1403, [2010] 1 WLR 1836, [2010] 3 All ER 858, [2009] Inquest LR 294. 25

Conclusions 305

as a tool for assessing and improving procedures may be limited.29 Questionnaires are often used to obtain the jury’s views on the central issues in the case.

(i) R (Jamieson) v HM Coroner for North Humberside and Scunthorpe [1995] QB 1 Keywords: Conclusions, narrative conclusion See above for a summary of the facts. Lord Bingham’s sixth conclusion relates to narrative conclusions (at 24F–G): (6) There can be no objection to a verdict which incorporates a brief, neutral, factual statement: ‘the deceased was drowned when his sailing dinghy capsized in heavy seas,’ ‘the deceased was killed when his car was run down by an express train on a level crossing,’ ‘the deceased died from crush injuries sustained when gates were opened at Hillsborough Stadium.’ But such verdict must be factual, expressing no judgment or opinion, and it is not the jury’s function to prepare detailed factual statements.

(ii) R (Middleton) v HM Coroner for West Somerset [2004] UKHL 10, [2004] 2 AC 182, [2004] Inquest LR 17 Keywords: Conclusions, narrative conclusion, Article 2 This case is discussed at length in Chapter 7. The House of Lords held that the jury must express their conclusion on the central issue or issues canvassed at the inquest so as to meet the procedural obligations under Article 2 (see in particular paragraph 20 set out in Chapter 7 above). Lord Bingham continued: 35. Only one change is in our opinion needed: to interpret ‘how’ in section 11(5)(b)(ii)30 of the Act and rule 36(1)(b)31 of the Rules in the broader sense previously rejected, namely as meaning not simply ‘by what means’ but ‘by what means and in what circumstances’. 36. This will not require a change of approach in some cases, where a traditional short form verdict will be quite satisfactory, but it will call for a change of approach in others: paras 30–31 above. In the latter class of case it must be for the coroner, in the exercise of his discretion, to decide how best, in the particular case, to elicit the jury’s conclusion on the central issue or issues. This may be done by inviting a form of verdict expanded beyond those suggested in form 22 of Schedule 4 to the Rules. It may be done, and has (even if very rarely) been done, by inviting a narrative form of verdict in which the jury’s factual conclusions are briefly summarised. It may be done by inviting the jury’s answer to factual questions put by the coroner. If the coroner invites either a narrative verdict or answers to questions, he may find it helpful to direct the jury with reference to some of the matters to which a sheriff will have regard in making his determination under section 6 of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976: where and when the death took place; the cause or causes of such death; the defects in the system which contributed to the death; and any other factors which are relevant to the circumstances of the death. It would be open to parties appearing or represented at the inquest to make submissions to the coroner on the means of eliciting the jury’s factual conclusions and on any questions to be put, but the choice must be that of the coroner and his decision should not be disturbed by the courts unless strong grounds are shown. 29 30 31

Scholes v Secretary of State for the Home Department [2006] EWCA Civ 1343, [2006] Inquest LR 180. Coroners Act 1988, s 11(5) concerned the matters to be recorded in the inquisition. See now CJA 2009, s 10. Coroners Rules 1984, r 36 concerned matters to be ascertained at the inquest. See now CJA 2009, s 5.

306 Sir Neil Garnham and Kate Beattie 37. The prohibition in rule 36(2) of the expression of opinion on matters not comprised within sub-rule (1)32 must continue to be respected. But it must be read with reference to the broader interpretation of ‘how’ in section 11(5)(b)(ii) and rule 36(1) and does not preclude conclusions of fact as opposed to expressions of opinion. However the jury’s factual conclusion is conveyed, rule 4233 should not be infringed. Thus there must be no finding of criminal liability on the part of a named person. Nor must the verdict appear to determine any question of civil liability. Acts or omissions may be recorded, but expressions suggestive of civil liability, in particular ‘neglect’ or ‘carelessness’ and related expressions, should be avoided. Self-neglect and neglect should continue to be treated as terms of art. A verdict such as that suggested in para 45 below (‘The deceased took his own life, in part because the risk of his doing so was not recognised and appropriate precautions were not taken to prevent him doing so’) embodies a judgmental conclusion of a factual nature, directly relating to the circumstances of the death. It does not identify any individual nor does it address any issue of criminal or civil liability. It does not therefore infringe either rule 36(2) or rule 42. … … 45. It follows from the reasoning earlier in this opinion that the judge’s declaration was correctly made, although not for all the reasons he gave. There was no dispute at this inquest whether the deceased had taken his own life. He had left a suicide note, and it was plain that he had. The crux of the argument was whether he should have been recognised as a suicide risk and whether appropriate precautions should have been taken to prevent him taking his own life. The jury’s verdict, although strictly in accordance with the guidance in Ex p Jamieson [1995] QB 1, did not express the jury’s conclusion on these crucial facts. This might have been done by a short and simple verdict (eg ‘The deceased took his own life, in part because the risk of his doing so was not recognised and appropriate precautions were not taken to prevent him doing so’). Or it could have been done by a narrative verdict or a verdict given in answer to the coroner’s questions. By one means or another the jury should, to meet the procedural obligation in article 2, have been permitted to express their conclusion on the central facts explored before them.

(iii) R (Longfield Care Homes) v HM Coroner for Blackburn [2004] EWHC 2467 (Admin), [2004] Inquest LR 5 Keywords: Conclusions, narrative conclusion See the case summary above under ‘Neglect’. The High Court indicated that narrative conclusions will often be required where death results from more than one cause. 28. Here, a simple verdict of death by natural causes or accidental death is inadequate to describe that which the jury truly found. A remedy is now to hand. The coroner is not at all to be criticised for failing to apply it because it was only promulgated in R (Middleton) v West Somerset Coroner [2004] 2 WLR 800 by the House of Lords on 11 March 2004. 29. Middleton was concerned with a death in custody in which Article 2 of the European Convention on Human Rights was engaged. This factor led the House of Lords to conclude that the 32

See now CJA 2009, s 5, which concerns the matters which must be ascertained at an inquest. See now CJA 2009, s 10, which provides that a determination may not be framed in such a way as to appear to determine criminal or civil liability. 33

Conclusions 307 r estrictive approach to the law as stated in Jamieson, that an inquest was only concerned with how death occurred and not with how and in what circumstances it occurred, could no longer be supported. But the comments made by the House are not restricted to verdicts in cases of death where the State may have had a hand and are of general application … [The Court went on to cite the judgment of Lord Bingham in Middleton at pages 814C to 815B.] 31. In cases where the death results from more than one cause of different types, a narrative verdict will often be required. It is here. The jury’s findings can be encapsulated by a verdict such as the following. I read out my proposed text so as then to invite counsel to amend it if they think it right. This is the draft and not the final version: ‘Mrs Hall died of bronchopneumonia resulting from dementia. Her death was probably accelerated by a short time by the effect on her pneumonia of injuries sustained when she fell through an unattended open window, which lacked an opening restrictor, in the lounge of Longfield Residential Home on 16 April 2003.’

(iv) Scholes v Secretary of State for the Home Department [2006] EWCA Civ 1343, [2006] Inquest LR 180 Keywords: Conclusions, narrative conclusion, Article 2, jury The Court of Appeal considered the appropriateness of seeking the jury’s views on a range of policy issues relating to the detention of a young offender at a young offender institution following sentence for a detention and training order. The Court of Appeal held that the jury’s views were helpful on factual issues but of less value as a tool for assessing and improving procedures. 69. Having regard to the issue raised on the judicial review, I am doubtful as to the appropriateness of them being dealt with, insofar as they were, by a Coroner’s jury. However clearly and conscientiously the questions are drafted, the jury cannot be expected to give answers to questions of resources and policy which could provide reliable guides to an improvement in conditions. For example, while criticism of documentation and communication was appropriate, the ‘failure in the system’, alleged on behalf of the appellant, went much further than that. For the jury to say that it was ‘policy’ not to place young offenders in LASCHs [Local Authority Secure Children’s Home] and to state, ‘that there were no budgetary constraints’ is difficult to reconcile with the evidence given. The negative answer to the question ‘any failure of the system [was] a gross failure’ may be tenable but its value is questionable in the search for improvement. 70. I make these points not to criticise the jury but respectfully to question the value, as a way of discharging Article 2 duties, in present circumstances, of questions such as these put to the jury. As a fact finding tribunal, the jury is well established and valued for its part in the administration of justice in England and Wales. As such, it operated effectively in this case. Questions on factual issues will sometimes be helpful. However, the value of a jury’s views as a tool for assessing and improving procedures is in my view limited in circumstances where further investigation of policies and administrative procedures, as distinct from facts, is required. Reliance on a jury’s contribution by way of answering a questionnaire, however well intentioned, may be inappropriate. Some of the jury’s answers in the present case illustrate the limitations of the procedure. I should wish to repeat the reservations I expressed in Sacker v West Yorkshire Coroner [2003] 2 All ER 278, at paragraphs 24 to 27.

308 Sir Neil Garnham and Kate Beattie

(v) R (Cash) v HM Coroner for Northamptonshire [2007] EWHC 1354 (Admin), [2007] 4 All ER 903, [2007] Inquest LR 147 Keywords: Conclusions, narrative conclusion, Article 2 The case concerned the inquest into the death of Malcolm Cash, who died shortly after being detained by a number of police officers. The High Court confirmed that Article 2 ECHR may require the jury to provide a narrative form of verdict in which their factual conclusions are briefly summarised or to answer factual questions put to them: 4. If an inquest is to be the mechanism by which this obligation is to be discharged—as it was in Mr Cash’s case—the inquest ‘ought ordinarily to culminate in an expression, however brief, of the jury’s conclusion on the disputed factual issues at the heart of the case’: R (Middleton) v West Somerset Coroner [2004] 2 AC 182 at [20]. That was held in Middleton at [35] to require the word ‘how’ in section 11(5)(b)(ii) of the Act to be interpreted as meaning not simply ‘by what means’ but ‘by what means and in what circumstances’. The effect of that, as Middleton went on to explain at [36], is that the traditional short form of verdict may not be appropriate in some cases. An expanded verdict may be necessary in those cases. That can be done by asking the jury to provide a narrative form of verdict in which their factual conclusions are briefly summarised. Alternatively, it can be done by asking the jury to answer factual questions put to them by the coroner. One of the criticisms of the coroner in the present case is that she should have asked the jury to provide a narrative verdict in which they recorded their conclusions on the disputed factual issues at the heart of the case.

The High Court also made clear that a narrative conclusion should avoid being ‘anodyne’: 49. In the end, the jury produced a bland narrative in box 3. The narrative reads: ‘On the morning of 5 July 2002 the police were called out to a man with a suspected overdose and potential violent behaviour at [Ms Vidler’s address]. Following this the man, Malcolm Cash, was brought to the ground and pinned by the police. Whilst detained he suffered myocardial insufficiency and was taken to Kettering General Hospital where he was pronounced extinct at 10.39.’ The jury cannot be criticised for producing so anodyne a narrative. They were loyally following the directions they were given. But their narrative added nothing of significance to anyone’s knowledge of the circumstances surrounding Mr Cash’s death. It certainly cast no light at all on the core factual questions which the inquest had addressed: whether the police had needed to restrain Mr Cash at all; if so, whether it would have been sufficient for the police officers to have held his arms without taking him to the ground; and if not, whether the degree of force used to restrain him while he was on the ground was excessive. It may be that the coroner thought that the jury could not on the evidence have come to any conclusion on those issues which were adverse to the police, which was why she did not leave a possible verdict of unlawful killing for them to consider. But for the reasons I have already given, it was, in my view, open to the jury, depending on their view of the evidence, to reach conclusions which were adverse to the police on all these issues, even if the jury would not have returned a verdict of unlawful killing, for example because they did not think that the force used on Mr Cash would have harmed him. … 52. For these reasons, I have concluded that the coroner’s direction to the jury about the content of the narrative verdict which they should complete in box 3 had the effect of preventing them from embodying in it ‘a judgmental conclusion’ of a factual nature on the disputed factual issues at the heart of the case. That—and the coroner’s decision not to leave a verdict of unlawful killing for the

Conclusions 309 jury to consider—had the result of the inquest failing to arrive at ‘a determination of whether the force used … was or was not justified in the circumstances’ as required by Jordan at [107]. In that respect, the inquest proved not to be an effective mechanism by which the UK’s obligation under Art. 2 was to be discharged …

(vi) R (Hurst) v London Northern District Coroner [2007] UKHL 13, [2007] 2 AC 189, [2007] Inquest LR 29 Keywords: Conclusions, narrative conclusion, Article 2 This case arose from the death of the respondent’s son, Troy Hurst, who was stabbed to death by Albert Reid on 25 May 2000. An inquest was opened into Mr Hurst’s death but was adjourned because Reid was charged with murder. Following his conviction for manslaughter, Mrs Hurst sought to have the inquest resumed in order to investigate alleged failings of the police and the housing authority to protect her son from Reid. The coroner declined to reopen the inquest, which Mrs Hurst challenged by way of judicial review. As well as considering whether the obligation under the HRA 1998 to carry out an inquiry which complied with Article 2 applied to a death prior to 2 October 2000, the House of Lords considered the nature of narrative conclusions in Article 2 inquests. The House of Lords held that the Middleton approach did not apply to all inquests. 48. Neither way the argument is put do I find persuasive and both were rightly rejected by the court below. Middleton clearly accepted that Jamieson was correctly decided. Were it otherwise, the House could simply have overruled it without recourse to the Human Rights Act 1998 at all, let alone section 3.34 It is plain that the House was not intending the Middleton approach thereafter to apply in all cases. In the first place, an article 2 investigative obligation only arises in the comparatively few cases where the state’s responsibility is or may be engaged. Secondly, even where the obligation does arise, it will often be satisfied without resort to a Middleton inquest-in some cases by criminal proceedings, in particular ‘where a defendant pleads not guilty and the trial involves a full exploration of the facts surrounding the death’ (para 30 of the committee’s opinion delivered by Lord Bingham of Cornhill); in others, like McCann, where ‘short verdicts in the traditional form will enable the jury to express their conclusion on the central issue canvassed at the inquest’ at para 31 of the opinion. All this is clear from the committee’s opinion which in terms recognises at para 36 that only sometimes will a change of approach be called for.

(vii) R (P) v HM Coroner for Avon [2009] EWCA Civ 1367, [2009] Inquest LR 287 Keywords: Conclusions, narrative conclusion, Article 2, jury The case concerned the death by hanging of the claimant’s mother while in custody on remand. The Court of Appeal approved the practice of returning a short-form conclusion with a narrative appended to it. The Court of Appeal also commented on the need for a jury to address systemic issues by appending a narrative conclusion, where such issues were core issues at the inquest and in order to fulfil the requirements of Article 2 ECHR.

34 HRA 1998, s 3 which requires primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights, so far as it is possible to do so.

310 Sir Neil Garnham and Kate Beattie

Maurice Kay LJ, with whom Rimer and Dyson LJJ agreed: 25. Summing up to a jury in an Article 2 inquest is inherently difficult. For example, how can the jury be provided with an intelligible explanation of the relationship between ‘how [viz in what circumstances] … the deceased came by his death’, the prohibition on the expression of ‘any opinion on any other matters’ and the avoidance of language which ‘appears to determine any question of … civil liability’? In Middleton, Lord Bingham illustrated permissible language with the example: ‘the deceased took his own life, in part because the risk of doing so was not recognised and appropriate precautions were not taken to prevent him from doing so’ (see paragraph 16, above). He described that as embodying ‘a judgmental conclusion of a factual nature’ which does not address any issue of criminal or civil liability. However, with great respect, it seems to me that the fact that appropriate (a word often pregnant with ambiguity) precautions were not taken and this was causative of the death may well seem to be addressing issues of civil liability. It depends what is meant by ‘appropriate’. It is impossible not to sympathise with coroners and juries who have to navigate these confusing waters. It would not be surprising if a jury opted for the simplest solution. 26. I have included those observations not because they provide the solution to this appeal but because they help to set the scene. It seems to me that the first task of the coroner in an Article 2 inquest is ‘to decide how best, in a particular case, to elicit the jury’s conclusion on the central issue or issues’ (Middleton, paragraph 36). In the present case there was no real issue about the mechanism of death, nor was it suggested that the deceased died otherwise than as a result of her own unassisted act. The real issues were (1) whether she had intended to take her own life and (2) in any event, whether the system for prevention of suicide or self-harm merited criticism. It seems certain that the several days of the hearing were taken up more by evidence referable to (2) than to (1). The question we have to consider is whether, by her directions, the Deputy Coroner effectively foreclosed (albeit inadvertently) the possibility of a narrative verdict addressing (2). 27. The Deputy Coroner gave the jury unobjectionable directions on suicide and accident. It is the immediately following passage which is problematical: ‘The next option for you to consider would be a verdict of narrative. If you do not consider that any of the above verdicts express your factual conclusions then you may return a narrative verdict, which is a short statement summarising your factual conclusions as to the circumstances in which the deceased came by her death.’ 28. I cannot escape the conclusion that these words would have given the jury the impression that they could only return a narrative verdict if they did not return a verdict of suicide or accident. However, since Middleton there has been no legal impediment to a verdict of either suicide or accident having a narrative appended to it. Indeed, once the jury had resolved issue (1)—suicide or accident—it is difficult to see how they could have addressed issue (2) other than by appending a narrative. Issue (2) raised the questions referred to by the judge and set out in paragraph 10 above. The evidence was extensive and rival submissions were advanced. As in R (Cash) v County of Northamptonshire Coroner [2007] EWHC 1354 (Admin) similar points raised were ‘disputed factual issues at the heart of the case’ and ‘core issues which the inquest raised’ (per Keith J at paragraphs 52 and 53). In my judgment, the jury in the present case were effectively disabled from fulfilling the purposes referred to by Lord Bingham in Amin (see paragraph 19, above). This is not to say that the content of any appended narrative would have been obvious. We do not have the benefit of having heard the evidence at the inquest. The jury may or may not have accepted the

Conclusions 311 criticisms of the system. Either way, however, there was a public interest in their being given a clear opportunity to express their findings in narrative form.

(viii) R (Smith) v Oxfordshire Assistant Deputy Coroner [2010] UKSC 29, [2011] 1 AC 1, [2010] 3 WLR 223, [2010] 3 All ER 1067, [2010] Inquest LR 119 (the ‘Catherine Smith’ case) Keywords: Conclusions, narrative conclusion, Article 2 The case concerned the inquest into the death of a British soldier who died while on service in Iraq from hyperthermia while carrying out various duties off base. For a full summary of the facts of this case see Chapter 7 on Article 2. The Supreme Court considered the differences between a conclusion in a Jamieson or Middleton style inquest. Lord Phillips of Worth Matravers PSC held: 78. It seems to me that the only difference that the decision of the House in Middleton’s case would have made to either the Jamieson inquest or the Middleton inquest would have been to the form of the verdict. In each case the coroner appears to have permitted exploration of the relevant circumstances despite the fact that he did not permit these to be reflected in the verdict. I question whether there is, in truth, any difference in practice between a Jamieson and a Middleton inquest, other than the verdict. If there is, counsel were not in a position to explain it. Coroners appear frequently to have exercised considerable latitude as to the scope of the inquiry—the inquest into the shootings in Gibraltar that were the subject of McCann v United Kingdom 21 EHRR 97 exemplifies this. The form of the verdict will, no doubt be dictated by the evidence that emerges at the inquest, but I have difficulty with the concept that the inquest itself may in midstream undergo a significant change in character from a Jamieson to a Middleton inquest. How far it is appropriate to widen the scope of an inquest in order to consider allegations of breach of obligations imposed by article 2 is a matter to which I shall revert.

Lord Brown of Eaton-under-Heywood JSC: 152. I further agree with Lord Phillips PSC that in practice the only real difference between a Jamieson inquest (R v Coroner for North Humberside and Scunthorpe, Ex p Jamieson [1995] QB 1) and a Middleton inquest is likely to be with regard to its verdict and findings, rather than its inquisitorial scope. As I pointed out in Hurst [2007] 2 AC 189, paras 27, 51, the scope of the inquiry is essentially a matter for the coroner. Such indeed had been eloquently recognised in Jamieson [1995] QB 1 itself in the court’s judgment given there by Sir Thomas Bingham MR (at para 14 of the Court of Appeal’s general conclusions, p 26): ‘It is the duty of the coroner as the public official responsible for the conduct of inquests, whether he is sitting with a jury or without, to ensure that the relevant facts are fully, fairly and fearlessly investigated. He is bound to recognise the acute public concern rightly aroused where deaths occur in custody. He must ensure that the relevant facts are exposed to public scrutiny, particularly if there is evidence of foul play, abuse or inhumanity. He fails in his duty if his investigation is superficial, slipshod or perfunctory. But the responsibility is his. He must set the bounds of the inquiry. He must rule on the procedure to be followed. His decisions, like those of any other judicial officer, must be respected unless and until they are varied or overruled.’

312 Sir Neil Garnham and Kate Beattie 153. As, however, I also pointed out in Hurst [2007] 2 AC 189, para 51, the verdict and findings are not a matter for the coroner. These are severely circumscribed when an inquest is confined to ascertaining ‘by what means’ the deceased came by his death (a Jamieson inquest); not so where the inquest is to fulfil the article 2 investigatory obligation when it must also ascertain ‘in what circumstances’ the deceased came by his death (a Middleton inquest). Sometimes, of course, as in McCann v United Kingdom 21 EHRR 97 (the ‘Death on the Rock’ case), ‘short verdicts in the traditional form will enable the jury to express their conclusion on the central issue canvassed at the inquest’: Hurst [2007] 2 AC 189, para 48, citing Lord Bingham in Middleton [2004] 2 AC 182, para 31. Other times, perhaps generally indeed, an article 2 obligation will require the coroner or jury to state conclusions upon the important underlying issues in a way that plainly goes beyond the sort of restricted verdict available in a Jamieson inquest and in such cases a Middleton inquest is required. Even then, however, as noted at para 37 of Middleton, the conclusions must be ‘conclusions of fact as opposed to expressions of opinion … Nor must the verdict appear to determine any question of civil liability’. 154. Although, as I recognised in Hurst [2007] 2 AC 189, para 51, the coroner may sometimes choose to widen the scope of the inquiry if he recognises that article 2 conclusions of fact (and thus a Middleton verdict and findings) are required, more probably (as Lord Hope envisages at para 95 of his judgment) the coroner is likely to decide the scope of inquiry with a view rather to the exercise of his rule 43 power to make a written report to a responsible authority aimed at avoiding similar fatalities in future. 155. To my mind, guidance beyond these broad generalities is quite impossible. This is really not an area of the law in which advisory opinions are likely to prove especially helpful.

Other Cases R (Allen) v HM Coroner for Inner North London [2009] EWCA Civ 623, [2009] Inquest LR 187—the Court of Appeal confirmed that a narrative conclusion is required to focus on the central issue or issues, not every issue raised at an inquest, however peripheral to the main questions to be determined. R (Khan) v HM Coroner for West Hertfordshire [2002] EWHC 302 (Admin), [2008] Inquest LR 200—the Court held that there was no evidence upon which the issue of causation could safely be left to the jury for the purposes of a verdict of neglect; it remained necessary to establish causation on the balance of probabilities. R (Clayton) v South Yorkshire Coroner [2005] EWHC 1196, [2005] Inquest LR 110—in relation to narrative conclusions by juries, the Court doubted the appropriateness of a three-page questionnaire. See further Chief Coroner’s Guidance No. 17, paragraph 34. R (Lewis) v HM Coroner for the Mid and North Division of Shropshire [2009] EWCA Civ 1403, [2010] 1 WLR 1836, [2010] 3 All ER 858, [2009] Inquest LR 294—the Court of Appeal considered the respective roles of the coroner and jury in an Article 2 inquest arising from the death by hanging of the claimant’s son, who was serving a custodial sentence in a young offender institution and was found hanging in his cell by a prison officer on patrol. The Court held that there was no duty to take a jury’s conclusion on potentially causative circumstances as opposed to actually causative circumstances. But a narrative conclusion may include such matters where those findings will assist a coroner in a Report to Prevent Future Deaths. This case is discussed in Chapter 7.

Conclusions 313

D. Procedural and Evidential Matters The standard of proof for a conclusion of suicide35 or unlawful killing36 is the criminal standard. For all other conclusions, the test is the balance of probabilities.37 When deciding what conclusions to leave to a jury, the coroner applies the ‘Galbraith plus’ test of evidential sufficiency.38 While a coroner can give a judgment referring to matters falling within his jurisdiction, he may not express an opinion on any other matter.39 If an interested person wishes to challenge a coroner’s decision to leave a particular conclusion to a jury, it will be rare that the court will entertain such a challenge before the inquest has concluded.40

(i) R (Gray) v West London Coroner [1988] QB 467, [1987] 2 WLR 1020 Keywords: Standard of proof, suicide, criminal offence, open conclusion The Divisional Court considered the appropriate standard of proof in cases of suicide, unlawful killing, open, and all other verdicts. Watkins LJ gave the substantive judgment of the Court, with which Roch LJ agreed. At 477: I turn now to the standard of proof. We heard much argument about this. There is a lack of direct authority on the point. We were referred to cases on suicide going back into the last century, all of which emphasise the presumption against suicide, and the requirement of rebutting that presumption. Suicide was then a crime. It no longer is. But it is still a drastic action which often leaves in its wake serious social, economic and other consequences.

He went on to cite Lord Widgery CJ in R (Barber) v City of London Coroner [1975] 1 WLR 1310, 1313 (see the quote above under Section III.A.(9) ‘Suicide’) and commented: It will be noted that Lord Widgery C.J. alluded to the stringent test, but without reference to what may be called the conventional standards of proof. I cannot believe, however, that he was regarding proof of suicide as other than beyond a reasonable doubt. I so hold that that was and remains the standard. It is unthinkable, in my estimation, that anything less will do. So it is in respect of a criminal offence. I regard as equally unthinkable, if not more so, that a jury should find the commission, although not identifying the offender, of a criminal offence without being satisfied beyond a reasonable doubt. As for the other verdicts open to a jury, the balance of probabilities test is surely appropriate save in respect, of course, of the open verdict. This standard should be left to the jury without any of the refined qualifications placed upon it by some judges who have spoken to some such effect as, the more serious the allegation the higher the degree of probability required. These refinements would only serve to confuse juries and, in the context of a jury’s role are, I say with great respect to those who have given expression to them, I think, meaningless. 35

R v West London Coroner ex parte Gray [1988] QB 467. R v Wolverhampton Coroner ex parte McCurbin [1990] 1 WLR 719. 37 Save for an open conclusion, for which there is no requisite standard: Gray (n 35). 38 R (Secretary of State for Justice) v HM Deputy Coroner for the Eastern District of West Yorkshire [2012] EWHC 1634 (Admin). See also R (Douglas Williams) v Inner South London Coroner [1999] 1 All ER 344. 39 R (Farah) v HM Coroner for Southampton and New Forest District of Hampshire [2009] EWHC 1605 (Admin). 40 R (Cooper) v HM Coroner for North East Kent [2014] EWHC 586 (Admin). 36

314 Sir Neil Garnham and Kate Beattie

(ii) R (Douglas Williams) v Inner South London Coroner [1999] 1 All ER 344 Keywords: Conclusions, evidence, jury The Court considered whether the strength of the evidence was the only consideration in deciding whether to leave a verdict to the jury. The deceased’s brother had appealed against the refusal to quash the inquest into the death of her brother in police custody and the jury’s verdict of accidental death. The appeal was dismissed. Lord Woolf MR held (at 349): The conclusion I have come to is that, so far as the evidence called before the jury is concerned, a coroner should adopt the Galbraith approach in deciding whether to leave a verdict. The strength of the evidence is not the only consideration and in relation to wider issues, the coroner has a broader discretion. If it appears there are circumstances which, in a particular situation, where in the judgment of the coroner, acting reasonably and fairly, it is not in the interest of justice that a particular verdict should be left to the jury, he need not leave that verdict. He, for example, need not leave all possible verdicts just because there is technically evidence to support them. It is sufficient if he leaves those verdicts which realistically reflect the thrust of the evidence as a whole. To leave all possible verdicts could in some situations merely confuse and overburden the jury and if that is the coroner’s conclusion he cannot be criticised if he does not leave a particular verdict.

At 355 Hobhouse LJ addressed the use of written directions for juries. He said: I also endorse the need for legal directions to be given to juries in a clear and easily usable form. The use of written directions should be further considered in any case which is not wholly straightforward. There is scope for a body such as the Judicial Studies Board to be invited to prepare and provide sets of standard directions which coroners could use in such cases.

(iii) R (Farah) v HM Coroner for Southampton and New Forest District of Hampshire [2009] EWHC 1605 (Admin) Keywords: Conclusions, narrative conclusion, coroners The coroner recorded a verdict in narrative form which explained that the deceased died as a result of an accident. In addition, he delivered a ‘judgment’ containing findings on matters not directly related to the death, derogatory comments about the deceased that were causally irrelevant and critical comments about the lawyers acting for the family. Silber J said that: 20. A number of conclusions can be drawn from the wording of section 11(5)(b) of the 1988 Act and Rule 36(1)(b) of the Rules and they are that:— (a) The use of the word ‘solely’ in Rule 36(1) (b) of the Rules indicates the only matters to which the proceedings and the evidence at inquest must be directed. This conclusion is reinforced by the prohibition in Rule 36(2) which prevents the coroner expressing an opinion on any other matter. Thus the only matters to which proceedings and evidence can be directed are (i) who the deceased was; (ii) how, when, by what means, in what circumstances and where the deceased came by his death; and (iii) the particulars for the time being required by the Registration Acts to be registered concerning the death. I will refer to these important matters as ‘the stipulated issues’; (b) In consequence, those words in Rule 36(1)(b) of the Rules mean that none of the proceedings nor any of the evidence at the inquest can be directed to any matter other than the stipulated issues;

Conclusions 315 (c) If the proceedings and evidence can only be directed to the stipulated issues, it must logically follow that any statement from a coroner can only relate to those matters as anything else falls outside the scope of his inquiry especially as Rule 36 (2) precludes a coroner giving an opinion on any other matter. Lord Bingham in Middleton referred to a statement by a coroner being acceptable if it ‘embodied a conclusion of a factual nature, directly related to the circumstances of the death’ [37]); (d) There is no provision preventing a coroner from giving a judgment which refers to matters falling within his jurisdiction by which I mean ‘the stipulated issues’. Neither the Act (whether in its long title or otherwise) nor the Rules purport to constitute an entire code setting out all the functions of a coroner. Indeed there are some restrictions on what a coroner can do in Rules 36 and 42 as I have explained in paragraphs 17 and 18 above but they do not preclude a coroner giving a judgment on many other matters; (e) Indeed there are matters on which a coroner may well be obliged to give a short judgment and they are closely connected with decisions on the stipulated issues such as why a line of questioning is objectionable and why a particular verdict cannot be left to the jury. If a coroner was not entitled to give those judgments on such issues, the unsuccessful party would not know why he or she had failed to persuade the coroner. In addition, this court would have difficulties in determining a subsequent application for judicial review. Furthermore, the coroner might be justified in explaining in a judgment the procedure he adopted in providing the verdict on the specified issues, such as how he had dealt with a claim by a witness that he need not answer a question because of his privilege against self-incrimination; and (f) The right of the coroner to give a judgment on the stipulated issues must of course not infringe rule 36 or rule 42. It follows that as some of the judgment deals with the stipulated issues in describing how Mr Bullaleh was knocked down in his fatal accident, it cannot be quashed but I will return in Section V below to consider if any parts of it are objectionable.

(iv) R (Secretary of State for Justice) v HM Deputy Coroner for the Eastern District of West Yorkshire [2012] EWHC 1634 (Admin), [2012] Inquest LR 76 Keywords: Conclusions, unlawful killing This case concerned a decision by a coroner to leave verdicts of unlawful killing by murder and unlawful killing by gross negligence manslaughter to a jury. Haddon Cave J considered the application of Galbraith in the context of an inquest: 17. When deciding what verdicts or findings to leave to a coronial jury, a coroner makes a judgment based on evidential sufficiency. The test to be applied by a coroner in these circumstances is similar to the Galbraith test used by a Crown Court on a submission of ‘no case to answer’, but arguably with a modest gloss or addition. Pure Galbraith 18. The classic Galbraith test as laid down by Lord Lane CJ in R v. Galbraith (1981) 73 Cr. App. R. 124, CA, is as follows: ‘(1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the prosecution evidence, taken at its h ighest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a

316 Sir Neil Garnham and Kate Beattie s ubmission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury. It follows that we think the second of the two schools of thought is to be preferred. There will of course, as always in this branch of the law, be borderline cases. They can safely be left to the discretion of the judge.’ (emphasis added) 19. The two ‘schools of thought’ referred to by Lord Lane, of which the CA in Galbraith preferred the second, were explained earlier in the judgment: ‘There are two schools of thought: (1) that the judge should stop the case if, in his view, it would be unsafe (alternatively unsafe or unsatisfactory) for the jury to convict; (2) that he should do so only if there is no evidence on which a jury properly directed could properly convict. Although in many cases the question is one of semantics, and though in many cases each test would produce the same result, this is not necessarily so. A balance has to be struck between on the one hand a usurpation by the judge of the jury’s function and on the other the danger of an unjust conviction.’ Galbraith ‘plus’ 20. The authorities recognise that there is some (if small) distinction between the position of a coroner deciding what verdict to leave to a jury after hearing all the evidence and that of a judge in a criminal trial considering whether to stop a case after the conclusion of the prosecution case. This was made clear by Waller LJ in R Bennett v HM Coroner for Inner South London [2007] EWCA Civ 617. Waller LJ cited passages of Lord Woolf MR in R v HM Coroner for Exeter, Ex Parte Palmer [1997] CA (10 December) and Leveson J in Sharman v. HM Coroner for Inner North London [2005] EWHC 857 (Admin) and made the following observation (at paragraph [29]): ‘The emphasis seems to be on the safety of leaving a particular verdict to the jury’. 21. Waller LJ went on to note that the very issue in Galbraith was which of the ‘two schools of thought’ was to be preferred. He cited the two ‘schools of thought’ passage from Galbraith set out above and, after observing that the CA in Galbraith preferred the second school of thought (‘… no evidence on which a jury properly directed could properly convict…’) to the first (‘… unsafe or unsatisfactory for the jury to convict …’), said as follows: ‘[30.] But the language of Lord Woolf and Leveson J, so far as coroners are concerned would seem to be nearer the rejected school of thought, albeit Woolf was saying that a coroner should not ‘decide matters which are the province of the jury’. I would understand the essence of what Lord Woolf was saying is that coroners should approach their decision as to what verdicts to leave on the basis that facts are for the jury, but they are entitled to consider the question of whether it is safe to leave a particular verdict on the evidence to the jury, i.e. to consider whether a verdict, if reached, would be perverse or unsafe and to refuse to leave such a verdict to the jury. (emphasis added)’ 22. Waller LJ held on the facts of that case that the coroner was right to take the view that a verdict of unlawful killing could not be safely left to the jury in that case (see paragraph [34]). 23. It is clear, therefore, that when coroners are deciding whether or not to leave a particular verdict to a jury, they should apply a dual test comprising both limbs or ‘schools of thought’, i.e. coroners should (a) ask the classic pure Galbraith question ‘Is there evidence on which a jury properly directed could properly convict etc.?’ (see above) plus (b) also ask the question ‘Would it be safe for the jury to convict on the evidence before it?’. The second limb, arguably, provides a wider and more subjective filter than the first in certain cases. In my view, this extra layer of protection makes sense in the context of a coronial inquiry where the process is inquisitorial rather than adversarial, the rights of

Conclusions 317 interested parties to engage in the proceedings are necessarily curtailed and coronial verdicts are at large.

(v) R (Cooper) v HM Coroner for North East Kent [2014] EWHC 586 (Admin) Keywords: Conclusions, unlawful killing, judicial review It will be rare that the Court will entertain a challenge to a coroner’s decision to leave a particular verdict or conclusion to a jury before the inquest has concluded. In Cooper Mitting J said: 11. It can of course be distressing for a properly interested party to be the subject of a conclusion by a jury that there has been unlawful killing even though that interested party may not be named in the conclusion of the jury, because it will be apparent to all the world in some cases that he or she is the individual affected by it. But the competing disadvantages of allowing this burgeoning practice [of bringing a judicial review challenge in the middle of an inquest] to continue, in my judgment, heavily outweigh the possible advantages of allowing it to do so. 12. First, in the ordinary case, it would inevitably interrupt the hearing of the inquest. That is undesirable when heard by a coroner alone. It is especially undesirable when heard by a coroner and a jury. The jury comprises laymen. In a case which may well turn to some extent on the truthfulness and reliability of witnesses giving evidence about certain events, it may be difficult or impossible for a jury fairly to remember what has happened weeks or months before they are required to return a conclusion. 13. Secondly, it may not be necessary in a case in which the question whether or not a particular conclusion can be left to a jury is borderline. The common sense of the jury may well lead them, applying a proper standard of proof, not to reach the conclusion, the leaving of which to the jury is sought to be challenged. In that event, although it may arguably have been wrong to leave the conclusion to the jury, no harm would have been done and no judicial review proceedings would be required. There is a substantial saving in costs to everybody. 14. Thirdly, investigating the issue whether or not a conclusion should be left of the jury is likely in most cases to involve a careful examination of the evidence. But the High Court would not have the advantage that the coroner had of having heard the evidence. It would have to proceed on the basis of pre-2009 Act inquests on an uncertain basis as to the oral evidence that has been given. There was no requirement that it should be tape-recorded and transcribed. Even in a case under the current rules when the inquest would be recorded and a transcript may be ordered, the High Court will inevitably lack the advantage that the coroner has of hearing the evidence live. Furthermore, the need to prepare a transcript, especially in a substantial case, is likely to lead to lengthy delays. 15. Fourthly, if a challenge is to be made to the coroner’s decision, there will have to be a reliable statement of the reasons which she has given for her decision. That too will impose, in some cases, some additional delay and a further burden on an already busy coroner. That however is a minor consideration. 16. Fifthly, if the conclusion should not have been left to the jury and if a jury reached that conclusion and does so on an erroneous basis of law or of fact—in the latter case such that no jury could reasonably have reached that conclusion—then the conclusion can be quashed and justice achieved eventually. 17. Accordingly, in my judgment, challenges of this kind should not in the ordinary case be entertained by the High Court. No judge sitting in this court, having, as this court does, jurisdiction to

318 Sir Neil Garnham and Kate Beattie entertain a challenge, can ever confidently say that there should never be one. But I find it difficult to envisage circumstances in which this court should ever entertain such a challenge.

Other Cases R v Wolverhampton Coroner, ex parte McCurbin [1990] 1 WLR 719—the standard of proof appropriate in cases of unlawful killing and death by misadventure was considered on this appeal against a refusal by the Divisional Court to set aside a decision of a coroner sitting with a jury. R (Sharon Palmer) v HM Coroner for Exeter and East Devon [2000] Inquest LR 78—the Court of Appeal confirmed that the proper approach which a coroner should adopt in deciding whether or not to leave a particular verdict to the jury was the Galbraith test. In borderline cases the coroner would exercise a discretion. In such cases the court could review the exercise of the coroner’s discretion on Wednesbury reasonableness grounds. In Palmer the verdict of unlawful killing had rightly been withdrawn from the jury where the evidence did not support the necessary causal connection between an unlawful or negligent act and the death. R (Mowlem Plc) v HM Assistant Deputy Coroner for Avon [2005] EWHC 1359 (Admin)— the Court considered a challenge to the verdict reached by an inquest jury of accident/misadventure in the death of a carpenter who died following an injury suffered at work. The verdict included the words ‘he fell from a ladder at work’. The coroner conceded that those words were not lawfully included in the inquisition. The Court went on to find that it had power to substitute alternative words.41 R (Bennett) v HM Coroner for Inner South London [2007] EWCA Civ 617, [2007] Inquest LR 163—the Court of Appeal considered whether the coroner had been right not to leave the verdict of unlawful killing to the jury. Coroners should approach their decision on the basis that facts were for the jury, but were entitled to consider the question whether it was safe to leave a particular verdict on the evidence to the jury. This would involve considering whether a verdict, if reached, would be perverse or unsafe.

41

See also Chapter 25 on PFD reports.

16 Inquest versus Public Inquiry ISABEL MCARDLE

I. Overview Public inquiries, like inquests, are a method of investigating events within a statutory framework. A public inquiry is often perceived by those seeking answers to how and why catastrophic and tragic events unfolded as a preferable method of doing so, when compared with an inquest, the remit of which is usually much narrower. Public inquiries also fulfil a political role, redirecting press and public concern away from central government following some disastrous event, and demonstrating that the state investigates its own actions in circumstances where serious state impropriety is alleged. A number of high profile campaigns have been fought by relatives of deceased persons, whose deaths are suspected by their relatives to have been, or to be at risk of being, inadequately investigated by means of an inquest or other investigation. The Stephen Lawrence Inquiry, the Francis Inquiry, the Al Sweady Inquiry were all products of such campaigns. Similarly, the family of Alexander Litvinenko, a Russian national who died of poisoning from consuming a radioactive substance in London in 2006, in circumstances where the Russian state is alleged to have been involved in the death, challenged by way of judicial review the decision of the Home Secretary not to initiate a public inquiry into the death, when it emerged that various issues would not be explored in an inquest because material of relevance was subject to public interest immunity. In a public inquiry, such material could be explored in closed session. It is of note that a public inquiry under the Inquiries Act 2005 (2005 Act), when established to investigate a death, effectively replaces the inquest which would otherwise take place. Paragraph 3(1) of Schedule 1 to the Coroners and Justice Act 2009 (CJA 2009) provides that, save in exceptional circumstances, a coroner must suspend an inquest if the Lord Chancellor requests him to do so on the ground that the cause of death is likely to be adequately investigated by an inquiry under the 2005 Act chaired by a senior judge appointed with the approval of the Lord Chief Justice. In this chapter, the term ‘public inquiry’ is used to refer to statutory public inquiries, established pursuant to the 2005 Act.1 It is not intended that this work will provide a

1 It is possible for the state or any other institution to hold an inquiry largely or exclusively in public, but which was not constituted under the Inquiries Act 2005. The Detainee Inquiry is a recent example.

320 Isabel McArdle

comprehensive review of the law of public inquiries. For that readers are directed to Public Inquiries by Jason Beer QC.2

A. Similarities Where inquests and public inquiries explore the facts of relevance to a death, the process can be very similar in some key respects. Crucially, neither process is adversarial. Public inquiries and inquests are both inquisitorial, and no determination of civil or criminal liability can be made in either process.3 Both may, of course, result in factual findings which would be of great significance, or determinative, if made in civil or criminal proceedings. The Al Sweady Public Inquiry, for example, investigated allegations of unlawful killing by British troops in Iraq in 2004, and found that the allegations were untrue. The Baha Mousa Public Inquiry investigated not only the immediate circumstances in which an Iraqi national died while in British custody in Iraq, but also the broader military and political environment that led to the use of illegal interrogation techniques by military personnel. Those with close involvement in the factual background being explored may become core participants in public inquiries: factors which are considered when deciding whether to appoint a person as a core participant include whether the person has a direct and significant role in relation to the matters to which the inquiry relates, a significant interest in an important aspect of the matters to which the inquiry relates and whether the person may be subject to explicit or significant criticism.4 With the permission of the chairman, core participants in public inquiries can question witnesses. In an inquest a person may become an interested party where they fall into any of the categories specified in section 47 of the CJA 2007, such as being a specified type of relative of the deceased, or a person who may have caused or contributed to the death. Interested persons are entitled, as of right, to put questions to witnesses at the inquest.5 Typically, the ‘terms of reference’ for a public inquiry will empower the inquiry to make recommendations, to prevent repetition of any conduct which is criticised. In inquests, the coroner is entitled6 to make a report to a person with the power to take action to prevent future deaths, where the investigation gives rise to a concern that circumstances creating a risk of other deaths will occur, or will continue to exist, in the future, and action should be taken to change the relevant circumstances.7 However, this power is narrower in scope than that normally given to a public inquiry by its terms of reference. A key advantage of both inquests and public inquiries over court proceedings, for those seeking answers to questions relating to a death, is that under neither regime are participants at risk of adverse costs orders. The corollary of that, however, is that the opportunities for recovering the costs of representation at either inquests or public inquiries are limited. Public funding is often available to core participants in public inquiries at the direction of the chairman;8 the cost of legal representation for interested persons at inquests is much more difficult. It is discussed further in Chapter 10. 2

Jason Beer QC, Public Inquiries (OUP 2011). Inquiries Act 2005, s 2(1), CJA 2009, s 19(2). 4 Inquiry Rules, SI 2006/1838, r 5. 5 Coroners (Inquests) Rules 2013, r 19. 6 Pursuant to CJA 2009, Sch 5, para 7. 7 This is discussed further in Chapter 25. 8 Inquiries Act 2005, s 40(2). 3

Inquest versus Public Inquiry 321

B. Differences While an inquest is limited to answering the four questions in section 5 of the CJA 2009, a public inquiry’s scope is defined by the terms of reference laid down by the minister establishing the inquiry, pursuant to section 5 of the Inquiries Act 2005. Consequently, a public inquiry can and must look into any matter falling within the terms of reference. Recent public inquiries have investigated matters as diverse as press conduct (the Leveson Inquiry), allegations of unlawful killing (the Baha Mousa, Al Sweady and Litvinenko Public Inquiries) and hospital operation and management (the Mid Staffordshire NHS Foundation Trust Public Inquiry). This flexibility in scope and subject matter holds obvious attraction for those who feel the limited nature of an inquest, even if of the Middleton type, cannot answer important questions arising from a death. Public inquiries are also attractive in that rule 11 of the Inquiry Rules 2006 provides that core participants may address the inquiry in opening and closing statements and can comment on the facts to be found by the panel. Interested persons cannot address an inquest on the facts; see rule 27 of the Coroners (Inquests) Rules 2013. This is a significant limitation, albeit some reference to the facts is conventionally made when addressing the inquest on the law, because legal arguments can rarely be made properly in a factual vacuum. A further important difference between public inquiries and inquests, is that the former can consider material which cannot be made public, such as documents subject to public interest immunity, thanks to the provisions providing for closed proceedings in sections 18–20 of the 2005 Act. This was a major feature in the litigation concerning the form of investigation into the death of Alexander Litvinenko; potentially relevant material was subject to public interest immunity, and consequently could not be taken into consideration at an inquest.9 Although the public will not be permitted to see such material or hear evidence disclosing its contents, it can be considered by an inquiry panel or chairman in closed session and the inquiry’s conclusions can be informed by such evidence. The extent to which the inquiry’s report can reflect the closed material inevitably depends on the circumstances. Inquests are in certain circumstances heard by juries, an issue explored further in Chapter 11, which is sometimes considered an attractive feature. Public inquiries are heard either by a chair (commonly a judge), or a chair and panel. Inquests are typically a much faster means of reaching a conclusion than public inquiries. Under section 16 of the CJA 2009, an inquest must conclude or be discontinued within one year of the coroner becoming aware that the deceased’s body was within the coroner’s area, or the Chief Coroner must be notified of the fact that the process has not concluded or been discontinued, and when the inquest will conclude or be discontinued. Public inquiries are rarely concluded within a year of initiation, and some have been extremely long-running. The Bloody Sunday Inquiry report was published in June 2010, the inquiry having been initiated in January 1998. The scope of public inquiries is a key feature lengthening the process, often requiring far more witnesses to be called than an inquest would require, an enormous disclosure exercise and significant periods of time allocated to the preparation of opening and closing statements. 9 R (on the application of Litvinenko) v Secretary of State for the Home Department [2014] EWHC 194 (Admin), [2014] HRLR 6.

322 Isabel McArdle

One of the most important factors distinguishing inquest and inquiry processes is the method by which they are initiated. While there are a significant number of circumstances where a coroner must or is likely to open an inquest into a death (see Chapter 3), a public inquiry can only be initiated by a government minister. A refusal by a minister to do so can only be challenged by way of judicial review.

II. Legislation and Other Sources Inquiries Act 2005 2. No determination of liability (1) An inquiry panel is not to rule on, and has no power to determine, any person’s civil or criminal liability. (2) But an inquiry panel is not to be inhibited in the discharge of its functions by any likelihood of liability being inferred from facts that it determines or recommendations that it makes. 3. The inquiry panel (1) An inquiry is to be undertaken either— (a) by a chairman alone, or (b) by a chairman with one or more other members. (2) References in this Act to an inquiry panel are to the chairman and any other member or members. 4. Appointment of inquiry panel (1) Each member of an inquiry panel is to be appointed by the Minister by an instrument in writing. (2) The instrument appointing the chairman must state that the inquiry is to be held under this Act. (3) Before appointing a member to the inquiry panel (otherwise than as chairman) the Minister must consult the person he has appointed, or proposes to appoint, as chairman. 5. Setting-up date and terms of reference (1) In the instrument under section 4 appointing the chairman, or by a notice given to him within a reasonable time afterwards, the Minister must— (a) specify the date that is to be the setting-up date for the purposes of this Act; and (b) before that date— (i) set out the terms of reference of the inquiry; (ii) state whether or not the Minister proposes to appoint other members to the inquiry panel, and if so how many. (2) An inquiry must not begin considering evidence before the setting-up date. (3) The Minister may at any time after setting out the terms of reference under this section amend them if he considers that the public interest so requires.

Inquest versus Public Inquiry 323 (4) Before setting out or amending the terms of reference the Minister must consult the person he proposes to appoint, or has appointed, as chairman. (5) Functions conferred by this Act on an inquiry panel, or a member of an inquiry panel, are exercisable only within the inquiry’s terms of reference. (6) In this Act ‘terms of reference’, in relation to an inquiry under this Act, means— (a) (b) (c) (d)

the matters to which the inquiry relates; any particular matters as to which the inquiry panel is to determine the facts; whether the inquiry panel is to make recommendations; any other matters relating to the scope of the inquiry that the Minister may specify.

… 18. Public access to inquiry proceedings and information (1) Subject to any restrictions imposed by a notice or order under section 19, the chairman must take such steps as he considers reasonable to secure that members of the public (including reporters) are able— (a) to attend the inquiry or to see and hear a simultaneous transmission of proceedings at the inquiry; (b) to obtain or to view a record of evidence and documents given, produced or provided to the inquiry or inquiry panel. (2) No recording or broadcast of proceedings at an inquiry may be made except— (a) at the request of the chairman, or (b) with the permission of the chairman and in accordance with any terms on which permission is given. Any such request or permission must be framed so as not to enable a person to see or hear by means of a recording or broadcast anything that he is prohibited by a notice under section 19 from seeing or hearing. (3) Section 32(2) of the Freedom of Information Act 2000 (c. 36) (certain inquiry records etc exempt from obligations under that Act) does not apply in relation to information contained in documents that, in pursuance of rules under section 41(1)(b) below, have been passed to and are held by a public authority. (4) Section 37(1)(b) of the Freedom of Information (Scotland) Act 2002 (asp 13) (certain inquiry records etc exempt from obligations under that Act) does not apply in relation to information contained in documents that, in pursuance of rules under section 41(1)(b) below, have been passed to and are held by a Scottish public authority. 19. Restrictions on public access etc (1) Restrictions may, in accordance with this section, be imposed on— (a) attendance at an inquiry, or at any particular part of an inquiry; (b) disclosure or publication of any evidence or documents given, produced or provided to an inquiry. (2) Restrictions may be imposed in either or both of the following ways— (a) by being specified in a notice (a ‘restriction notice’) given by the Minister to the chairman at any time before the end of the inquiry;

324 Isabel McArdle (b) by being specified in an order (a ‘restriction order’) made by the chairman during the course of the inquiry. (3) A restriction notice or restriction order must specify only such restrictions— (a) as are required by any statutory provision, enforceable [EU] obligation or rule of law, or (b) as the Minister or chairman considers to be conducive to the inquiry fulfilling its terms of reference or to be necessary in the public interest, having regard in particular to the matters mentioned in subsection (4). (4) Those matters are— (a) the extent to which any restriction on attendance, disclosure or publication might inhibit the allaying of public concern; (b) any risk of harm or damage that could be avoided or reduced by any such restriction; (c) any conditions as to confidentiality subject to which a person acquired information that he is to give, or has given, to the inquiry; (d) the extent to which not imposing any particular restriction would be likely— (i) to cause delay or to impair the efficiency or effectiveness of the inquiry, or (ii) otherwise to result in additional cost (whether to public funds or to witnesses or others). (5) In subsection (4)(b) ‘harm or damage’ includes in particular— (a) death or injury; (b) damage to national security or international relations; (c) damage to the economic interests of the United Kingdom or of any part of the United Kingdom; (d) damage caused by disclosure of commercially sensitive information. 20. Further provisions about restriction notices and orders (1) Restrictions specified in a restriction notice have effect in addition to any already specified, whether in an earlier restriction notice or in a restriction order. (2) Restrictions specified in a restriction order have effect in addition to any already specified, whether in an earlier restriction order or in a restriction notice. (3) The Minister may vary or revoke a restriction notice by giving a further notice to the chairman at any time before the end of the inquiry. (4) The chairman may vary or revoke a restriction order by making a further order during the course of the inquiry. (5) Restrictions imposed under section 19 on disclosure or publication of evidence or documents (‘disclosure restrictions’) continue in force indefinitely, unless— (a) under the terms of the relevant notice or order the restrictions expire at the end of the inquiry, or at some other time, or (b) the relevant notice or order is varied or revoked under subsection (3), (4) or (7). This is subject to subsection (6). (6) After the end of the inquiry, disclosure restrictions do not apply to a public authority, or a Scottish public authority, in relation to information held by the authority otherwise than as a result of the breach of any such restrictions.

Inquest versus Public Inquiry 325 (7) After the end of an inquiry the Minister may, by a notice published in a way that he considers suitable— (a) revoke a restriction order or restriction notice containing disclosure restrictions that are still in force, or (b) vary it so as to remove or relax any of the restrictions. (8) In this section ‘restriction notice’ and ‘restriction order’ have the meaning given by section 19(2).

Inquiry Rules, SI 2006/1838 5. Core participants (1) The chairman may designate a person as a core participant at any time during the course of the inquiry, provided that person consents to being so designated. (2) In deciding whether to designate a person as a core participant, the chairman must in particular consider whether— (a) the person played, or may have played, a direct and significant role in relation to the matters to which the inquiry relates; (b) the person has a significant interest in an important aspect of the matters to which the inquiry relates; or (c) the person may be subject to explicit or significant criticism during the inquiry proceedings or in the report, or in any interim report. (3) A person ceases to be a core participant on— (a) the date specified by the chairman in writing; or (b) the end of the inquiry. … 9. Evidence (1) The inquiry panel must send a written request for a written statement to any person from whom the inquiry panel proposes to take evidence. (2) The inquiry panel must send a written request to any person that it wishes to produce any document or any other thing. (3) The inquiry panel may make a written request for further evidence, being either a written statement or oral evidence. (4) Any request for a written statement must include a description of the matters or issues to be covered in the statement. 10. Oral evidence10 (1) Subject to paragraphs (2) to (5), where a witness is giving oral evidence at an inquiry hearing, only counsel to the inquiry (or, if counsel has not been appointed, the solicitor to the inquiry) and the inquiry panel may ask questions of that witness. 10

Including limits on who may ask questions.

326 Isabel McArdle (2) Where a witness, whether a core participant or otherwise, has been questioned orally in the course of an inquiry hearing pursuant to paragraph (1), the chairman may direct that the recognised legal representative of that witness may ask the witness questions. (3) Where— (a) a witness other than a core participant has been questioned orally in the course of an inquiry hearing by counsel to the inquiry, or by the inquiry panel; and (b) that witness’s evidence directly relates to the evidence of another witness, the recognised legal representative of the witness to whom the evidence relates may apply to the chairman for permission to question the witness who has given oral evidence. (4) The recognised legal representative of a core participant may apply to the chairman for permission to ask questions of a witness giving oral evidence. (5) When making an application under paragraphs (3) or (4), the recognised legal representative must state— (a) the issues in respect of which a witness is to be questioned; and (b) whether the questioning will raise new issues or, if not, why the questioning should be permitted. 11. Opening and closing statements (1) The recognised legal representative of a core participant may— (a) make an opening statement to the inquiry panel at the commencement of the first of any oral hearings, and (b) make a closing statement to the inquiry panel. (2) A core participant who does not have a recognised legal representative may make the opening and closing statements referred to in paragraph (1).

Coroners and Justice Act 2009 10. Determinations and findings to be made (1) After hearing the evidence at an inquest into a death, the senior coroner (if there is no jury) or the jury (if there is one) must— (a) make a determination as to the questions mentioned in section 5(1)(a) and (b) (read with section 5(2) where applicable),11 and (b) if particulars are required by the 1953 Act to be registered concerning the death, make a finding as to those particulars. (2) A determination under subsection (1)(a) may not be framed in such a way as to appear to determine any question of— (a) criminal liability on the part of a named person, or (b) civil liability. 11 1(a) Who the deceased was; 1(b) how, when and where the deceased came by his or her death; (2) where necessary in order to avoid a breach of any Convention rights (within the meaning of the Human Rights Act 1998 (c. 42)), the purpose mentioned in sub-s (1)(b) is to be read as including the purpose of ascertaining in what circumstances the deceased came by his or her death.

Inquest versus Public Inquiry 327 (3) In subsection (2) ‘criminal liability’ includes liability in respect of a service offence. … 16. Investigations lasting more than a year (1) A senior coroner who is conducting an investigation under this Part into a person’s death that has not been completed or discontinued within a year— (a) must notify the Chief Coroner of that fact; (b) must notify the Chief Coroner of the date on which the investigation is completed or discontinued. (2) In subsection (1) ‘within a year’ means within the period of 12 months beginning with the day on which the coroner was made aware that the person’s body was within the coroner’s area. (3) The Chief Coroner must keep a register of notifications given under subsection (1). … Schedule 1 (3) (1) Subject to sub-paragraph (2), a senior coroner must suspend an investigation under this Part of this Act into a person’s death if— (a) the Lord Chancellor requests the coroner to do so on the ground that the cause of death is likely to be adequately investigated by an inquiry under the Inquiries Act 2005 (c. 12) that is being or is to be held, (b) a senior judge has been appointed under that Act as chairman of the inquiry, and (c) the Lord Chief Justice has indicated approval to the Lord Chancellor, for the purposes of this paragraph, of the appointment of that judge. In paragraph (b) ‘senior judge’ means a judge of the High Court or the Court of Appeal or a Justice of the Supreme Court. (2) The coroner need not suspend the investigation if there appears to be an exceptional reason for not doing so. (3) In the case of an investigation that is already suspended under paragraph 1— (a) a reference above in this paragraph to suspending the investigation is to be read as a reference to continuing the suspension of the investigation; (b) if the suspension of the investigation is continued under this paragraph, the investigation is to be treated for the purposes of paragraphs 1(4), 7 and 9 of this Schedule as suspended under this paragraph (and not as suspended under paragraph 1). … Schedule 5(7) Action to prevent other deaths (1) Where— (a) a senior coroner has been conducting an investigation under this Part into a person’s death, (b) anything revealed by the investigation gives rise to a concern that circumstances creating a risk of other deaths will occur, or will continue to exist, in the future, and (c) in the coroner’s opinion, action should be taken to prevent the occurrence or continuation of such circumstances, or to eliminate or reduce the risk of death created by such circumstances,

328 Isabel McArdle the coroner must report the matter to a person who the coroner believes may have power to take such action. (2) A person to whom a senior coroner makes a report under this paragraph must give the senior coroner a written response to it. (3) A copy of a report under this paragraph, and of the response to it, must be sent to the Chief Coroner.

Coroners (Investigations) Regulations 2013 26. Investigations lasting more than a year (1) Where an investigation has not been completed or discontinued within a year of the date that the death was reported, the coroner must notify the Chief Coroner of that fact as soon as is reasonably practicable from the date that the investigation becomes a year old and explain why the investigation has not been completed or discontinued. (2) A coroner who completes or discontinues an investigation that the coroner has previously notified to the Chief Coroner under paragraph (1), must notify the Chief Coroner of the date the investigation is completed or discontinued and provide a reason for any further delay in completing or discontinuing the investigation. 27. No address as to facts No person may address the coroner or the jury as to the facts of who the deceased was and how, when and where the deceased came by his or her death.

Coroners Rules 2013 8. Timing of an inquest A coroner must complete an inquest within six months of the date on which the coroner is made aware of the death, or as soon as is reasonably practicable after that date. 13. Disclosure of Documents at the Request of an Interested Person (1) Subject to rule 15, where an interested person asks for disclosure of a document held by the coroner, the coroner must provide that document or a copy of that document, or make the document available for inspection by that person as soon as is reasonably practicable. (2) Documents to which this rule applies include— (a) any post-mortem examination report; (b) any other report that has been provided to the coroner during the course of the investigation; (c) where available, the recording of any inquest hearing held in public, but not in relation to any part of the hearing from which the public was excluded under rule 11(4) or (5); (d) any other document which the coroner considers relevant to the inquest. … 24. Inquiry findings (1) A coroner may admit the findings of an inquiry, including any inquiry under the Inquiries Act 2005, if the coroner considers them relevant to the purposes of the inquest.

Inquest versus Public Inquiry 329 (2) Before admitting such inquiry findings as evidence, the coroner must announce publicly that— (a) the findings of the inquiry may be admitted as evidence; (b) the title of the inquiry, date of publication and a brief account of the findings; and (c) that any interested person is entitled to see a copy of the inquiry findings if he or she so wishes.

III. Cases A. Inquest vs Inquiry Case Law There are numerous examples of cases whereby challenges have been brought to decisions that an inquest and/or some other investigative process is sufficient to meets the state’s obligation pursuant to Article 2 of the European Convention on Human Rights (ECHR), many set out elsewhere in this book. Key examples include: R (Amin) v Secretary of State for the Home Department [2003] UKHL 51, [2004] 1 AC 653, [2003] Inquest LR 1—a prison death case in which various types of investigation had occurred, but there had been no completed inquest, and the investigative duty had not been discharged. This is referred to in Chapter 7 (Article 2 inquests) and Chapter 20 (deaths in custody). R (Lin) v Secretary of State for Transport [2006] EWHC 2575 (Admin) [2006] Inquest LR 161—a judicial review challenge to a decision not to hold a public inquiry, following a fatal rail crash, where an inquest was found to be sufficient. This is referred to in Chapter 25 on Reports to Prevent Future Deaths. R (Gentle) v Prime Minister [2008] UKHL 20, [2008] 1 AC 1356—a judicial review challenge into a decision not to hold a public inquiry into the circumstances which led to the 2003 invasion of Iraq, covered in detail in Chapter 22 (military personnel and civilians in war). See also the LAG’s book, Inquests: a Practitioner’s Guide12 at Chapter 21, particularly Section 21.8–21.26xxx.

B. Public versus Closed Hearings (i) R (Litvinenko) v Secretary of State for the Home Department [2014] EWHC 194 (Admin), [2014] HRLR 6 Keywords: Article 2, public inquiries, inquests The claimant, the widow of the deceased, judicially reviewed the defendant’s refusal to initiate a statutory inquiry into the circumstances surrounding the death of her husband. In November 2006, during a meeting with two Russian nationals, he ingested a radioactive substance and subsequently died. An inquest was opened and the coroner provisionally 12

Thomas, Straw, Machover and Friedman, Inquests: A Practitioner’s Guide (Legal Action Group 2014).

330 Isabel McArdle

held that the inquest’s scope included the potential culpability of the Russian state and the British state (the latter for failing to protect the deceased from a real and immediate threat to his life). However, many documents that would otherwise have been relevant were subject to public interest immunity: consequently, the issues previously stated to be within the scope of the investigation would have to be removed from its remit. That compromised the coroner’s ability properly to investigate the death. The coroner requested that the Lord Chancellor convert the inquest into a public inquiry, which could include closed sessions where material subject to public interest immunity might be considered. The defendant declined to order a statutory inquiry, and so the claimant brought judicial review proceedings. The Divisional Court (Richards LJ, Treacy LJ and Mitting J) granted the application. Giving judgment for the Court, Richards LJ said: 42. … The Coroner’s strongly expressed provisional conclusion was that the Russian state responsibility issue and preventability issue should be removed from scope. For the secretary of state’s decision letter to reason on the basis that the issues would remain in scope was unrealistic. In any event the secretary of state adhered to her decision, without any revision to her reasons, following the Coroner’s actual decision to remove the two issues from scope. The result of that decision is that neither issue will be investigated by the inquest. Any suggestion that the inquest will go a substantial way to addressing or allaying public concern in relation to them is therefore plainly unsustainable and again cannot provide a rational basis for a ‘wait and see’ approach in relation to the setting up of a statutory inquiry or other form of independent review … … 52. It seems to me that the steps that have been taken are amply sufficient to fulfil the Menson13 duty in relation to the death of Mr Litvinenko. An exceptionally detailed police investigation has led to the identification of two named suspects and to the making of all reasonable efforts to bring them to trial. It is common ground that the duty is one of means not result, so that the failure to secure their extradition despite those efforts is not a ground of objection. The state’s capacity to enforce the criminal law so far as it reasonably can against those who unlawfully take the life of another has been demonstrated … … 54. … In this case the inquest will not investigate the Russian state responsibility issue or, therefore, the responsibility of individual agents of the Russian state. That would be a problem, however, only if there had not otherwise been a sufficient investigation, so that there really was a gap that the inquest needed to fill. In terms of the Menson duty, for the reasons I have given, I do not think that there is any such gap. There are certainly strong reasons of public interest why the Russian state responsibility issue should be investigated, but I do not accept that there is a requirement to carry out any further investigation for the purposes of meeting the United Kingdom’s obligations under art.2 … … 64 … The Coroner was prevented from considering an issue that in his judgment required investigation and was indeed of central importance to the case. He requested the setting up of a statutory inquiry as a means of overcoming that problem. By treating the Coroner’s approach to the Russian

13

The procedural obligation on the state to investigate deaths occurring in suspicious circumstances.

Inquest versus Public Inquiry 331 state responsibility issue as merely one of discretion rather than duty, the secretary of state’s third reason for refusing the request was not only legally erroneous but failed to address the real point behind the Coroner’s request … 65. The secretary of state’s fourth reason was that a statutory inquiry would reveal publicly only that which the inquest would reveal publicly, since it would have to consider the HMG material in closed session and its report would have to be drafted or published in such a way as to exclude all reference to the material. Mr Emmerson [for the claimant] submitted that this was a ridiculous misdirection. The inquiry, unlike the inquest, could consider the HMG material together with the open evidence, and its conclusion could be stated publicly even if no reference could be made publicly to the HMG material itself. The publication of a conclusion reached by an independent judicial figure after consideration of all relevant material would perform a very important public interest function … … 68. The proposition that a statutory inquiry would be incapable of achieving any useful purpose is therefore in my view a bad one … … 71. The secretary of state’s sixth reason was that an inquest was more readily explainable to some of the United Kingdom’s foreign partners, and the integrity of the process more readily grasped, than would be the case if an inquiry were established. 72. … I have found the secretary of state’s reasoning difficult to accept, especially in the absence of any evidence from the Foreign and Commonwealth Office to support the professed difficulty of explaining to the United Kingdom’s foreign partners the concept of an independent statutory inquiry chaired by a judge …

C. Anonymity (i) R (Associated Newspapers Ltd) v Leveson [2012] EWHC 57 (Admin) Keywords: Anonymity, public inquiries The Levenson Public Inquiry was established to examine the conduct of the press, in particular in relation to phone hacking. The chairman, Lord Levenson, determined that journalists’ evidence could be given anonymously in circumstances where they feared for their jobs or professional reputations. This decision was challenged by the claimant newspaper organisation. The Divisional Court (Toulson LJ, Sweeney J and Sharp J) dismissed the application. Toulson LJ, giving judgment for the Court, said: 33. The written grounds of challenge in the application for judicial review are: 1.

That allowing employees or former employees of press organisations to give evidence against those organisations anonymously would be unfair and so would contravene the principles of natural justice; 2. that the decision complained of fails to give effect to the principle of open justice; 3. that the decision complained of infringes the rights of the claimant and of others under article 10;

332 Isabel McArdle 4.

that the decision complained of fails to identify a public interest sufficient to justify a restriction order under section 19 of the Act, and fails adequately to balance any alleged public or private interest favouring anonymity against the countervailing public interest in open justice and free expression.

… 35. A duty of fairness does not exist in a vacuum. In that respect a duty to be fair is like a duty of care. In a case of a professional retainer, the professional person’s duty of care is inexorably tied up with what he is retained to do. This point was eloquently made by Oliver J in Midland Bank v Hett Stubbs and Kemp [1979] 1 Ch 384, 434. So in the present case, the starting point for any consideration of the Chairman’s duty of fairness is the task which he was appointed to perform under his Terms of Reference. 36. As to the European Convention, some of the factors relevant to conducting the Inquiry fairly are also the subject of articles of the Convention, particularly articles 8 and 10, but they do not add anything to his statutory duty. Applying those articles involves the self same exercise of acting fairly towards the different groups to which I have referred. Article 10, for example, might be seen differently when viewed from the perspective of the journalists who wish to be free to tell their experiences without fear of the risk of career blight, by the alleged victims and members of the public who wish to hear what the journalists have to say, and by the newspaper organisations who wish to receive information about the identity of the journalists so that they can respond fully and freely. 37. As to open justice, if permitting anonymity would further the purposes of the Inquiry without breaching section 17(3), a restriction under section 19 on disclosure of the witnesses’ statements in unredacted form would ex hypothesi be permissible under section 19(3) and (4). It is for those reasons that I have said that the critical challenge is the challenge to the fairness of the Chairman’s ruling. … 53. Above all, it is of the greatest importance that the Inquiry should be, and seen by the public to be, as thorough and balanced as is practically possible. If the Chairman is prohibited from admitting the evidence of journalists wanting to give evidence anonymously, there will be a gap in the Inquiry’s work, although the material (or similar material) is already in a real sense in the public domain. There is a point of detail about whether and at what stage Nick Davies’s book came to be received by the Inquiry, but that is a point of secondary importance. If the court ruled that the Chairman could not lawfully admit evidence of the kind under consideration, and his report reflected that fact, the result would be that the Inquiry would not have examined a raft of available material. There would be cause for concern that in those circumstances the Inquiry would have failed in a significant regard to achieve its terms of reference, and the credibility of its findings and recommendations would be lessened. It would be open to the criticism of not having heard the full story. 54. It has to be stressed that this is an inquiry; it is not the same as a criminal trial or a disciplinary proceeding. Mr Warby said that the newspaper organisations are ‘in the dock’ and in a metaphorical sense that is true; but it is true because an inquiry has been set up to try to explore as fully as it can the culture and the practices of the newspaper industry in the light of things which have given rise to public concern. 55. In determining where fairness lies in a public inquiry, there is always a balance to be struck. I am not persuaded that there is in principle something wrong in allowing a witness to give evidence anonymously through fear of career blight, rather than fear of something worse. Fear for a person’s

Inquest versus Public Inquiry 333 future livelihood can be a powerful gag. Nor am I persuaded that the Chairman acted unfairly and therefore erred in law in deciding that on balance he should admit such evidence, subject to his considering it of sufficient relevance and being satisfied that the journalist would not give it otherwise than anonymously. 56. The public interest in the Chairman being able to pursue his terms of reference as widely and deeply as he considers necessary is of the utmost importance. Although the names that have featured most prominently in newspaper coverage of the Inquiry have been largely the names of celebrities, newspaper magnates and politicians, any follower of the Inquiry will be aware that the Chairman has throughout been particularly concerned about the interests of ordinary members of the public, who do not have ready access to media lawyers. I say that in order to emphasise that the issues being investigated by the Inquiry affect the population as a whole. I would be very reluctant to place any fetter on the Chairman pursuing his terms of reference as widely and deeply as he considers necessary. I recognise that his ruling may cause damage to the claimant and other newspaper proprietors. However, such risk of damage will be mitigated to some extent (although not entirely, as I readily accept) by the fact that he will not use anonymous evidence to make specific findings against particular organisations. It is also important to recognise that the evidence in question will be part of a much wider tapestry and that it is open to the claimant and others to present balancing non-anonymous evidence. 57. I am not persuaded that the Chairman has reached an impermissible pre-judgment. He has reached a decision on a point of general principle, and he has kept open more detailed scrutiny of individual cases.

334

Part Two

Specific Inquests

336

17 Medical Inquests ISABEL MCARDLE AND KATE BEATTIE

I. Overview The statute and case law on this area of coronial practice makes it possible to identify five principles that will apply in at least a substantial majority of cases where death occurs in hospital or when the deceased was otherwise subject to medical care. First, an inquest must be held where the coroner has reasonable cause to believe that the deceased has died an unnatural death. Where there is a wholly unexpected death from natural causes which would not have occurred but for some culpable human failure, the death is ‘unnatural’ and an inquest should be held. Second, a complication arising from the appropriate medical treatment for a fatal disease or underlying condition will not be regarded as ‘unnatural’. Where a person is suffering from a potentially fatal condition and medical intervention does no more than fail to prevent that death, the appropriate conclusion would be natural causes. However, where a person is suffering from a non-life-threatening condition, medical treatment which causes death will be ‘unnatural’ and a natural causes conclusion would not be appropriate. Third, so-called ‘simple’ or ‘ordinary’ medical negligence (eg, errors of judgment on the part of health professionals or negligent co-ordination among health professionals in the treatment of a particular patient) has generally been held not to constitute a breach of the positive obligation to protect right to life under Article 2 (but see Lopes de Sousa Fernandes v Portugal below, where the Strasbourg Court found a violation of Article 2 in both the substantive and procedural aspect in a case of alleged hospital negligence). Where a death in hospital raises no more than a potential liability in negligence, there is usually no separate procedural obligation to investigate under Article 2 (but see Lopes de Sousa Fernandes v Portugal below). Fourth, in the context of allegations against hospital authorities, where the allegations are of a systemic nature such as the failure to provide suitable facilities or adequate staff or appropriate systems of operation, the state will be under a specific obligation under Article 2 proactively to conduct an investigation. Fifth, where there is the possibility of a neglect finding, an inquest should be held. Where a person’s death is caused by neglect, it follows that the death was unnatural because the neglect was the primary causative factor that overrode any other causes.1 1

R (Touche) v Inner London North Coroner [2001] EWCA Civ 383, [2001] QB 1206.

338 Isabel McArdle and Kate Beattie

II. Legislation and Other Sources Coroners and Justice Act 2009 1. Duty to investigate certain deaths (1) A senior coroner who is made aware that the body of a deceased person is within that coroner’s area must as soon as practicable conduct an investigation into the person’s death if subsection (2) applies. (2) This subsection applies if the coroner has reason to suspect that— (a) the deceased died a violent or unnatural death, (b) the cause of death is unknown, or (c) the deceased died while in custody or otherwise in state detention.

Guidance No 17, Conclusions: Short-form and Narrative 80. In a medical context it is not the role of an inquest to criticise every twist and turn of a patient’s treatment. Neglect is not concerned with the correctness of complex and sophisticated medical procedures but rather the consequences of, for example, failing to make simply (‘basic’) checks.

III. Cases A. Clinical Negligence and Article 2 (i) Powell v United Kingdom [2000] Inquest LR 19, (2000) 30 EHRR CD362 Keywords: Article 2, medical negligence, unnatural death The case is best known as authority for the principle that simple medical negligence does not constitute a breach of the Article 2 positive duty to protect life. That principle must now be reconsidered in light of Lopes de Sousa Fernandes v Portugal, where the Strasbourg Court found a violation of Article 2 in both the substantive and procedural aspect in a case of alleged hospital negligence (see below). The applicants’ 10-year-old son had been admitted to hospital with an acute illness, and was suspected of having Addison’s Disease, but a diagnostic test was not performed and he was discharged. He died of the condition several months later. A coroner, aware of the family’s belief that there had been medical negligence, refused to conduct an inquest. A number of other investigations were started, including High Court proceedings for damages as a consequence of clinical negligence, which were subsequently settled. Other claims in the action did not settle, and arose from alleged falsification of medical records. The House of Lords dismissed an application for leave to appeal in relation to these outstanding claims, and the applicants submitted their complaint to the European Court of Human Rights (ECtHR).

Medical Inquests 339

Sufficiency of the investigation into the death was central to the case. The majority dismissed the complaint as inadmissible: The applicants allege that, in the instant case, State agents falsified their son’s medical records to protect themselves from civil and criminal liability. The failure of the authorities to provide them with an honest account of the death is a procedural violation forming part and parcel of the State’s duty to investigate. The Court observes that the applicants do not in any manner allege or imply that their son was intentionally killed by the doctors responsible for his care and treatment at the material time. They aver, on the other hand, that the responsible doctors knew or can be considered in the circumstances to have known that their son’s life was at immediate risk but failed dismally to take the necessary measures to treat him. In the Court’s opinion, the reasoning employed by the applicants in support of their argument that the doctors’ inadequate response to their son’s condition at the time amounted to a breach of the State’s duty to protect the right to life cannot be sustained. The reasoning they advance is derived from the abovementioned Osman judgment. However, the Court was addressing in that case the circumstances in which a duty may devolve on law enforcement agencies to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of a third party. The issue before the Court in the instant case is an entirely different one in terms of both the context and scope of the obligation. Admittedly the first sentence of Article 2 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see LCB v United Kingdom (1999) 27 E.H.R.R. 212, para. 36). The Court accepts that it cannot be excluded that the acts and omissions of the authorities in the field of health care policy may in certain circumstances engage their responsibility under the positive limb of Article 2. However, where a Contracting State had made adequate provision for securing high professional standards among health professionals and the protection of the lives of patients, it cannot accept that matters such as error of judgment on the part of a health professional or negligent co-ordinationamong health professionals in the treatment of a particular patient are sufficient of themselves to call a Contracting State to account from the standpoint of its positive obligations under Article 2 of the Convention to protect life. In the Court’s opinion, the events leading to the tragic death of the applicants’ son and the responsibility of the health professionals involved are matters which must be addressed from the angle of the adequacy of the mechanisms in place for shedding light on the course of those events, allowing the facts of the case to be exposed to public scrutiny—not least for the benefit of the applicants. The Court has attached particular weight to the procedural requirement implicit in Article 2 of the Convention. It recalls that the obligation to protect the right to life under Article 2, read in conjunction with the State’s general duty under Article 1 to ‘secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention’, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alia, agents of the State (see Kaya v Turkey (1999) 28 EHRR 1, paras 78 and 86). This obligation is not confined to cases where it has been established that the killing was caused by an agent of the State. Nor is it decisive whether members of the deceased’s family or others have lodged a formal complaint about the killing with the relevant investigatory authority. The mere knowledge of the killing on the part of the authorities gives rise ipso facto to an obligation under Article 2 of the Convention to carry out an effective investigation into the circumstances surrounding the death (see Ergi v Turkey (2001) 32 EHRR 18, para. 82). The Court considers that the procedural obligation as described cannot be confined to circumstances in which an individual has lost his life as a result of an act of violence. In its opinion, and

340 Isabel McArdle and Kate Beattie with reference to the facts of the instant case, the obligation at issue extends to the need for an effective independent system for establishing the cause of death of an individual under the care and responsibility of health professionals and any liability on the part of the latter. The Court stresses that its examination of the applicants’ complaint must necessarily be limited to the events leading to the death of their son, to the exclusion of their allegations that, following his death, the doctors responsible for his care and treatment fabricated his medical records to exonerate them of any blame. In the Court’s opinion, that latter issue falls to be determined from the angle of their complaint under Article 6 that they were unable to secure a ruling on the doctor’s post-death responsibility. However, the alleged post-death offences committed by the doctors did not alter the course of events which led to the death of the applicant’s son. The Court observes that it was conclusively established that the applicants’ son died of Addison’s disease. The applicants do not contest this. They maintain that his life may have been saved had his condition been treated as soon as Dr Forbes first suspected in December 1989 that his symptoms could be consistent with Addison’s disease. The proceedings which they initiated before the Medical Services Committee of the West Glamorgan Family Health Authority were intended to establish that their son died as a result of medical negligence. The scope of the proceedings was then broadened to include their complaint that there had been a cover-up in regard to the precise circumstances surrounding their son’s death. The Medical Services Committee found that one of the five doctors concerned had failed to comply with the terms of her service in treating their son. The applicants subsequently appealed to the Welsh Office, contending that there had been a conspiracy among the doctors involved to falsify their son’s medical records so as to shield them from liability for their clinical errors. However, the applicants’ solicitor withdrew the appeal in the belief that they were unlikely to obtain justice. Given the applicants’ decision to abandon their appeal to the Welsh Office, the Court cannot speculate on whether the appeal would have provided the applicants with a full account of the doctors’ handling of their son’s condition, whether the doctors’ response was inadequate in the light of the information available to them and whether steps could have been taken to avoid his death. It confines itself to noting that by withdrawing their appeal the applicants closed one of the options which may have uncovered the extent of the lack of co-ordination among the doctors concerned at the relevant time. Of greater significance for the Court is the fact that the applicants settled their civil action in negligence against the responsible health authority and did not pursue individual claims against the doctors. In the Court’s opinion, the applicants by their decision closed another and crucially important avenue for shedding light on the extent of the doctors’ responsibility for their son’s death. Had the civil action proceeded the applicants would have been entitled to have a full adversarial hearing on their allegations of negligence, to subject the doctors concerned to cross examination under oath and obtain discovery of all documents relevant to their claim. The Court also considers that the applicants could have made their grievance about the falsification of their son’s medical records a live issue before the court. Indeed, there is no reason to doubt that it would not have dominated the pleadings, having regard to its centrality to the negligence allegation and its relevance to the level of damages which the court may have awarded. Having regard to the above considerations the Court finds that it is not open to the applicants to complain under Article 2 of the Convention that there was no effective investigation into their son’s death. In its opinion, where a relative of a deceased person accepts compensation in settlement of a civil claim based on medical negligence he or she is in principle no longer able to claim to be a victim in respect of the circumstances surrounding the treatment administered to the deceased person or with regard to the investigation carried out into his or her death.

Medical Inquests 341 The Court concludes therefore that the applicants cannot in the circumstances claim to be victims within the meaning of Article 34 of the Convention. Their complaint under this head is therefore to be rejected as being incompatible ratione personae, pursuant to Article 35(3) and (4) of the Convention.2

(ii) R (Goodson) v Bedfordshire and Luton Coroner [2004] EWHC 2931 (Admin), [2006] 1 WLR 432 Keywords: Article 2, medical negligence The adult child of the deceased challenged a coroner’s decision not to hold a Middleton style inquest, and not to seek independent medical expertise. The deceased had died following an elective gallstone procedure. The judicial review claim was refused. A death where mere medical negligence is a possible cause does not trigger the state’s enhanced investigative duty to hold a Middleton style inquest. Richards J held: 52. The cases referred to by Lord Bingham in support of the principles formulated in paras 2 and 3 of the Middleton case include three of the Strasbourg cases concerning medical negligence, namely Powell v United Kingdom 30 EHRR CD 362, Sieminska v Poland 29 March 2001 and Calvelli and Ciglio v Italy Reports of Judgments and Decisions 2002-I, p 1. Two of those cases, in turn, cite Erikson v Italy (1999) 29 EHRR CD 152 to which I think it helpful to refer first … … 59. I have not found it at all easy to analyse those four Strasbourg authorities on the application of article 2 to cases of alleged medical negligence. The conclusions I have reached in relation to them, however, are as follows. (i)

Simple negligence in the care and treatment of a patient in hospital, resulting in the patient’s death, is not sufficient in itself to amount to a breach of the state’s positive obligations under article 2 to protect life. This is stated clearly in the Powell case 30 EHRR CD 362. (ii) Nevertheless, where agents of the state potentially bear responsibility for the loss of life, the events should be subject to an effective investigation. Given (i) above and the general context, the reference here to potential responsibility for loss of life must in my view include a potential liability in negligence. Thus the need for an effective investigation is not limited to those cases where there is a potential breach of the positive obligations to protect life. (iii) There is a degree of confusion in the expression of how the need for an effective investigation fits within the structure of article 2. Some of the language used links the requirement of an effective investigation with the positive obligation to establish a framework of legal protection, including an effective judicial system for determining the cause of death and any liability on the part of the medical professionals involved. In other places, on the other hand, there is express reference to the separate procedural obligation to investigate. Two considerations lead me to the view that the former rather than the latter is the preferable analysis. First, in each of the cases the availability of a civil action in negligence and/or the applicant’s settlement of such an action is central to the court’s conclusion that there has been a sufficient investigation of the death: i e it is the existence of an effective judicial system that seems to

2

Powell v United Kingdom [2000] Inquest LR 19, (2000) 30 EHRR CD362, 364–65.

342 Isabel McArdle and Kate Beattie be decisive. Secondly, Calvelli and Ciglio v Italy Reports of Judgments and Decisions 2002-I, p 1, is both the most recent decision and also a decision of the Grand Chamber; and the judgment in that case analyses the matter solely in terms of the positive obligation to set up an effective judicial system, without reference to the separate procedural obligation to investigate.3 (iv) Whether the matter is analysed in terms of the positive obligation to set up an effective judicial system or in terms of the procedural obligation to investigate may not ultimately be of great significance. Although certain minimum criteria are laid down, the actual nature of an investigation required under article 2 varies according to context; and the Strasbourg cases on deaths resulting from alleged medical negligence show that, if the procedural obligation does apply, the range of remedies available under the judicial system (criminal, civil and possibly disciplinary) can be sufficient to discharge it. (v) On my preferred analysis, however, there is no separate procedural obligation to investigate under article 2 where a death in hospital raises no more than a potential liability in negligence. In such a situation an inquest does play a part, though only a part, in the discharge of the state’s positive obligation under article 2 to set up an effective judicial system for determining the cause of death and questions of liability. But it does not need to perform the function of discharging a separate investigative obligation on the state under article 2. It will only be in exceptional cases, where the circumstances give rise to the possibility of a breach of the state’s positive obligations to protect life under article 2, that the separate procedural obligation to investigate will arise and an inquest may have to perform the function of discharging that obligation. (vi) It also seems to me to follow from my preferred analysis that an inquest cannot be challenged on the ground that it is insufficient to meet the state’s positive obligations under article 2. The totality of available procedures, including most obviously the possibility of a civil claim in negligence, must be looked at in order to determine whether the state has complied with the positive obligation to set up an effective judicial system. Since an inquest forms only one part of the whole, its failure to provide the totality cannot be a ground for finding it incompatible with article 2. This is a sufficient reason for rejecting an alternative submission made briefly by Mr Powers in oral argument, which I have not otherwise mentioned, to the effect that the failure to hold an effective inquest constituted a breach of the state’s positive obligations under article 2.

(iii) R (Humberstone) v Legal Services Commission [2010] EWCA Civ 1479, [2011] 1 WLR 1460 Keywords: Article 2, medical negligence, unnatural death The deceased child’s mother, following his death from an asthma attack, had been arrested on suspicion of gross negligence manslaughter in relation to his death, on the basis of suspicions that she had not taken adequate care of him. However, there were also concerns regarding the delay of the ambulance service in responding to the emergency call. The mother challenged successfully the decision to refuse funding. The judge concluded that, although nothing more than simple negligence was alleged against medical professionals in whose care the deceased had been at the time of his death, a Middleton style inquest was appropriate.

3 But see Šilih v Slovenia (2009) 49 EHRR 37; Re McCaughey’s Application for Judicial Review [2011] UKSC 20, and Janowiec v Russia (2014) 58 EHRR 30 under ‘Article 2 and inquests predating the HRA’ in Chapter 7 on Art 2.

Medical Inquests 343

The Legal Services Commission (LSC) appealed. The Court of Appeal concluded that the judge had erred in conflating the two different duties imposed on the state in relation to Article 2, in the inquest context: (1) A duty to provide an open and independent judicial system to facilitate investigations into all deaths which might involve an allegation of misconduct by a state agent, and (2) A much narrower proactive duty to conduct a Middleton style inquest in cases where it was arguable that the state had breached its direct duty to protect life of those in its care. In the medical context, this may be because of an alleged failure to set up adequate healthcare systems (including sufficient staffing, training and equipment). On the facts of the appeal, there was sufficient material before the Court to make it arguable that the state’s proactive duty was engaged, but there had not been such material before the judge. Smith LJ held: 58. … article 2 imposes an obligation on the state to set up a judicial system which enables any allegation of possible involvement by a state agent to be investigated. That obligation may be satisfied in this country by criminal or civil proceedings, an inquest and even disciplinary proceedings or any combination of those procedures. This obligation envisages the provision of a facility available to citizens and not an obligation proactively to instigate an investigation. Only in limited circumstances (I depart from Richards J only so far as to decline to call them exceptional) will there be a specific obligation proactively to conduct an investigation. Those limited circumstances arise where the death occurs while the deceased is in the custody of the state or, in the context of allegations against hospital authorities, where the allegations are of a systemic nature such as the failure to provide suitable facilities or adequate staff or appropriate systems of operation. They do not include cases where the only allegations are of “ordinary” medical negligence.

This case is discussed further in Chapter 10 (on funding) and Chapter 7 (on Article 2).

(iv) R (Takoushis) v Inner North London Coroner [2005] EWCA Civ 1440, [2006] 1 WLR 461 Keywords: Article 2, mental health, medical negligence The deceased, who had a history of serious mental health problems, was seen by a member of the public apparently preparing to commit suicide by jumping off a bridge. He was taken to hospital. The hospital’s triage system required patients such as the deceased to be seen by a doctor within 10 minutes of arrival. This did not occur, and by the time a doctor attended to assess the deceased, he had absconded. He subsequently committed suicide. The deceased’s family requested that a jury be called at the inquest on the basis that the death had occurred in circumstances the ‘continuance or possible recurrence of which is prejudicial to the health or safety of the public’ within the meaning of section 8(3)(d) of the Coroners Act 1988 and that the inquest be adjourned to permit them to obtain expert evidence. The coroner refused the application and ruled that there had been no systemic neglect, that there was no defect in the triage system itself and that later changes to the triage system meant a breakdown of that system was less likely. The deceased’s widow sought to review the decision. The primary question before the Court of Appeal was whether the coroner had investigated the relevant issues fully, having concluded prior to the inquest that there was no systemic neglect on the facts, a decision which led to narrower evidence being heard. The Court found that he had not, because he could not properly conclude that there was no

344 Isabel McArdle and Kate Beattie

s ystemic failure on the evidence available prior to the inquest. Sir Anthony Clarke MR, giving the judgment of the Court, held: 49. The question is whether those circumstances were fully investigated in the way contemplated in both Ex p Jamieson [1995] QB 1 and Ex p Dallaglio [1994] 4 All ER 139. Such an investigation surely involved investigating both what the system at the hospital was and how it operated on the day in question. The coroner recognised that but, in our judgment, did not investigate the system in sufficient detail. He correctly identified the system as the emergency triage system described above, namely that it was for the triage nurse to put the patient in a suitable category, which Nurse Blake did when she put him into category 2. However, he did not investigate how the system was to work after that and did not consider, for example, what was to be done and, in particular, what safeguards were in place if, for some reason, the patient could not be seen within the target time. Instead, he concluded before the inquest began that what occurred after the triage decision had been made was a breakdown of the system rather than any defect in the system itself. 50. That he reached such a conclusion before the inquest began is in our view clear both from his letter of 1 March and from his response to Ms Brander’s submissions, to which we have referred in paras 22 and 25–27 above. Thus he concluded, in the passage quoted in para 27, that he was not satisfied that there was a systemic failing by the trust but that there appeared to have been an operational failing at that particular time. 51. We do not see how the coroner could properly reach that conclusion without further investigation of what the system was. Viewed before the inquest began and in the light of the information available to the coroner, he could not say why Mr Takoushis was able to leave the hospital. There were essentially three possibilities. The first is that identified by the coroner, namely that the system was a reasonable system but that it was not properly operated on the day in question, the second is that the system was properly operated, but that there was a failure in the system itself, and the third is that there was both a failure in the system itself and in the operation of the system. 52. … As a result there was in our opinion no basis upon which the coroner could properly judge that there was no defect in the system itself but only in the operation of the system.

(v) Moss v HM Coroner for the North and South Districts of Durham & Darlington [2008] EWHC 2940 (Admin), [2008] Inquest LR 108 Keywords: Medical care, conclusions, Article 2, scope The claimant’s father, FM, had been treated for lung cancer and had a recent diagnosis of secondary tumours in the brain. His GP had given him two injections and was subsequently charged with his murder (together with the murders of two other patients), it being alleged that he had deliberately given all three patients excessive quantities of opiates with the intention of terminating their lives. The GP was acquitted on all charges. The coroner opened an inquest into FM’s death and adjourned it pending the decision in the criminal proceedings. After the GP’s acquittal, the coroner refused to resume the inquest, holding that it had been sufficiently established who the deceased was, when and where the deceased came by his death. The coroner further concluded that Article 2 of the European Convention on Human Rights (ECHR) was not engaged in the case. Underhill J considered whether resumption of the inquest was necessary to ensure compliance with Article 2 ECHR, concluding that Article 2 required resumption: 23. If the only purpose of resuming the inquest were to examine whether Dr. Martin was negligent, I would not regard such a resumption as necessary in order to ensure compliance with art. 2. A case

Medical Inquests 345 of ‘simple’ negligence by a doctor gives rise only to the narrower obligation discussed in para. 6 (2) above, namely that the available system should allow for ‘the practical and effective investigation of the facts and for the determination of civil liability’. Although there has been no inquest, the criminal trial fulfilled the same function of investigating and exposing in public the primary facts relating to Dr. Martin’s care of Mr. Moss. I accept that the acquittal of Dr. Martin means that there has never been any formal determination of the cause of death; but, as I understand it, the evidence that the administration of the opiates in question was the immediate cause of Mr. Moss’s death was not challenged, and it was certainly not suggested to me that the resumption of the inquest was necessary in order to obtain a finding on that question alone. As to civil liability, the system provides for the Claimant to bring a civil claim, and she in fact did so (though, unsurprisingly, her claim was compromised). If it were necessary—though I do not believe it is—I would add (a) that the criminal proceedings produced independent (and, I think, uncontroverted) evidence that Dr. Martin’s treatment of Mr. Moss fell below a proper standard; and (b) that the pending proceedings in the GMC will in any event produce an independent and expert public decision on that question. N othing of value, to the Claimant or to the public interest generally, would be gained by a resumption of the inquest for that purpose alone. 24. It is of course the Claimant’s case that this is potentially a case of not merely ‘simple’ but ‘gross’ negligence; and it was Mr. Cragg’s submission, relying on the passage from the judgment in T akoushis quoted at para. 6 (4) above, that it followed that the wider obligation under art. 2 arises. This is less straightforward. The Court of Appeal in the passage in question said no more than that the position ‘may’ be different in a case of gross negligence (which would constitute manslaughter). In my view it would be surprising and unsatisfactory if the question whether the wider obligation arose depended simply on the degree of negligence involved. A distinction between simple and gross negligence is not explicitly made in the Strasbourg case-law, and I can see no principled reason for distinguishing between simple and gross negligence in this context. The underlying basis of the distinction propounded by Richards J in Goodson, and endorsed by the Court in Takoushis, is whether the acts alleged represent a breach of the positive obligation of the state to protect life: if ordinary carelessness by an individual doctor is not to be treated as a breach of that obligation, I do not see why particularly bad carelessness should do so. The distinction would also be hard to apply in practice, not so much because the border between simple and gross negligence is hard to recognise—after all, juries are supposed to be able to cope—as because it would have to be applied in advance: many, perhaps most, cases of alleged negligence are potentially ‘gross’, and it is only when the facts are investigated that the comparatively rare cases that are truly gross can be recognised. It seems to me to make more sense to base the necessary distinction on the character of the allegations, and specifically on whether there is some feature of them which makes it right to treat them as a breach of the state’s positive obligation: deliberate killing would plainly fall into that category, but so also would at least some cases of systemic or institutional failure. That seems to me to be consistent with the reasoning of the Court of Appeal in Khan referred to in Takoushis … 25. Accordingly I do not believe that the claim that Dr. Martin’s negligence was, or may have been, ‘gross’ alters the position. Gross or otherwise, its character remained that of an incompetent judgment by an individual practitioner. I should however add that I would not in fact take it for granted that this was potentially a case of gross negligence even in the Adomako sense. The drugs given by Dr. Martin were not inappropriate in themselves in a patient with serious illness and in serious pain: what was inappropriate was the dosage. It is important to ignore the possibility that the overdosage may have been deliberate: in the light of Dr. Martin’s acquittal of murder, that possibility has been eliminated, and the question whether the inquest should resume must be approached (so far as this aspect is concerned) on the basis that he simply failed to appreciate the likely fatal consequences of the doses that he administered. In so far as any explanation for that is apparent from the papers, it would seem to be that Dr. Martin had allowed his prescribing practices to

346 Isabel McArdle and Kate Beattie become crude and out-of-date and was too stubborn or conservative to be prepared to modify them. If that is indeed the picture, it is arguable whether the epithet ‘gross’ would be appropriate. His incompetence had of course very grave consequences, but that is necessarily so in every case where a doctor’s negligence leads to death. …. 27. It is my conclusion, after careful consideration, that the material relied on by Mr. Cragg is sufficient to require investigation as part of any proper investigation into the causes and circumstances of Mr. Moss’s death. That material raises a real question as to whether the relevant authorities took sufficient steps to investigate repeated reports of inadequacies in Dr. Martin’s practice, including at least one report of concerns about his treatment of terminally ill patients, or to ensure that the initiative taken through Dr. Sensier was carried though. That potential failure is quite distinct from any individual negligence on the part of Dr. Martin himself. It may turn out that the steps taken, or not taken, were in fact entirely correct, or that any deficiencies may have had no impact on the circumstances of Mr. Moss’s death; but whether that is so will only appear once the facts have been properly investigated. 28. In reaching this conclusion, I have taken into account the fact that the suggested failures on the part of the authorities occurred a year or more before Mr. Moss’s death (though they were arguably of a continuing character), and that the risk which may not have been adequately addressed was not specific to Mr. Moss but applied to an indeterminate class, namely all terminally ill patients under his care. There is no authoritative guidance as to the point at which “general” risks of this kind become—in the language of Lord Bingham MR in R v Inner West London Coroner, ex p. Dallaglio [1994] 4 All ER 139 (at p. 164j)—too remote a part of the chain of causation to form part of the Coroner’s investigation; and I accept that in Hurst, on which Mr. Cragg relied, the class of persons at risk—the members of a single family—was narrower than in the present case. But Mr. Perks did not in fact submit that the matters raised were too remote as potential causes, or circumstances, of Mr. Moss’s death to form part of the investigation, and I think he was right not to do so. It is in my judgment not possible to reach any conclusion on that question without a full understanding of the facts: as Lord Bingham said in Dallaglio (loc. cit.), the question of how far to pursue his investigation must be one for the judgment of the Coroner, but the possibility that some issues may ultimately be considered to fall outside its scope cannot be a reason for declining to resume the inquest at all. 29. As I understand it, it was the Coroner’s view that the internal investigation being carried out by the Trust was sufficient for the purpose of addressing the concerns in question. With respect, I cannot agree. I have in fact been told almost nothing about the scope and nature of that investigation; but even if it were both full and thorough, it lacks the ingredient of independence, which is essential even if the wider obligation under art. 2 does not arise. Still less can the fact that similar issues may have been considered, and recommendations made, as part of the Shipman Inquiry justify the non-resumption of the inquest. Those considerations may well be relevant to the question of exactly how far the Coroner thinks it necessary to go in his investigations or of what, if any, report he thinks it appropriate to make under rule 43 of the Coroners Rules 1984; but the Claimant is entitled in principle to an investigation of any specific failures which formed a sufficiently direct part of the circumstances of her father’s death. 30. It follows that in my judgment if the Coroner had had proper regard to the need for an investigation into the way in which the authorities had dealt with concerns about Dr. Martin’s practice he would have felt obliged to resume the inquest. The question then arises whether the resumed inquest should be of the Jamieson or the Middleton type—in other words, whether the wider obligation under art. 2 is engaged. I have not found this entirely easy. There is, as I have

Medical Inquests 347 already observed, not much guidance in the authorities as to the nature of the extra element which attracts the wider obligation. The distinction is not straightforwardly between cases of ‘systemic’ and ‘individual’ failure. As Lord Bingham said in Middleton—see para. 47 (p. 206H)—the division between the two is likely to be indistinct in practice. In Takoushis a fresh inquest was ordered specifically so that the Coroner could investigate the system of emergency triage in place in the hospital in question—explicitly characterised by the Court as a ‘systemic’ issue (though with a nod to Lord Bingham’s point: see at para. 68 (pp. 479–480))—but the Court of Appeal held that a Jamieson-type inquest would suffice, on the basis that even on the narrower approach to the question of ‘how’ the deceased met his death the Coroner would be able to carry out an effective investigation. In Khan the wider obligation was held to arise, but precisely which aspects of the case were decisive does not clearly appear (cf. para. 24 above). The cases do not seem to me entirely easy to reconcile. 31. In the absence of authoritative guidance, I return to the underlying principle. A Middletontype investigation is required when there is a potential case of a breach by the state of its positive obligation to protect life. That seems to me to be the position here. If it turns out to be the case that the relevant authorities had clear indications that Dr. Martin was or might be administering opiates to terminally ill patients in lethal dosages, but failed to take adequate steps to address that risk, that would in my view be properly characterised as breach of the obligation arising under art. 2. The nature of the risk—irrespective of Dr. Martin’s motivation—and the fact that it was expressly drawn to the authorities’ attention seems to me to make the case different in kind from that of a poorly-designed operational or administrative system such as was alleged in Takoushis. 32. I would thus allow the Claimant’s application, quash the Coroner’s decision not to resume the inquest, and order that he do in fact resume the inquest on the basis that the investigation required is of the kind defined by the House of Lords in Middleton and Sacker. Subject to that, the matters to be investigated by the inquest must be a matter for the Coroner’s judgment: it will be apparent from the foregoing that I anticipate that the main focus of the inquest will be on the acts and omissions of the authorities to whom concerns about Dr. Martin’s practices had been communicated prior to March 2003, but of course it is necessary for him to investigate any aspect of the cause or circumstances of Mr. Moss’s death which seems to him to require investigation. My observations at paras. 23–25 above about whether I would have thought it necessary for the inquest to be resumed only for the purpose of investigating the degree to which Dr. Martin’s treatment of Mr Moss fell below proper standards do not mean that that question falls outside the scope of the inquest, given that it is in fact to be resumed; but the evidence already obtained in the context of the criminal proceedings may make his task easier.

(vi) Lopes de Sousa Fernandes v Portugal, European Court of Human Rights, App No 56080/13, Judgment of 15 December 2015 Keywords: Medical negligence, Article 2 Note: The majority judgment is available only in French, with the minority judgment in English. The following summary is based on the press release produced by the Registry (which is stated not to bind the European Court of Human Rights) and the minority judgment. Readers are advised to consult the original text of the majority judgment for its full effect. The case concerned the hospital treatment of the applicant’s husband. He was admitted to hospital to undergo a nasal polypectomy (extraction of nasal polyps). The operation went well and he was discharged home the following day. He returned suffering from

348 Isabel McArdle and Kate Beattie

t errible headaches later that day and was diagnosed with psychological disorders and prescribed tranquilisers. The following day he was diagnosed with bacterial meningitis and treated in intensive care followed by the general medicine department. He was discharged approximately one week later. He returned several times with pain and was hospitalised twice. He was subsequently readmitted when his health worsened and died from the consequences of septicaemia caused by peritonitis and hollow viscera perforation. The applicant complained and the Inspector General for Health ordered an investigation, which initially concluded that her husband had been treated appropriately but subsequently (following the applicant’s further action) found negligence. The Inspector General referred one of the doctors for disciplinary proceedings which were unsuccessful. The applicant’s complaint for manslaughter and her civil proceedings were also ultimately unsuccessful. Relying on Article 2, the applicant alleged that there had been a violation of her late husband’s right to life. She also complained about the length of proceedings at the domestic level and the fact that she had not been given explanations as to the exact cause of death, relying on Article 6 (the right to a fair hearing within a reasonable time) and Article 13 (the right to an effective remedy). The Court held (five votes to two) that there had been a breach of Article 2 in its substantive aspect. The Court held (unanimously) that there had been a breach of Article 2 in its procedural aspect. The majority noted that experts who had given evidence in the investigation by the Inspector General for Health and in the disciplinary proceedings indicated that meningitis was a complication that could exceptionally arise after a polypectomy. The majority found that the mere fact that the patient had undergone a surgical operation carrying such risks should have warranted a medical intervention in conformity with the medical protocol on post-operative supervision. The court said that it did not wish to speculate on the chances of survival of the applicant’s husband, but held that the meningitis could have been diagnosed earlier and that the lack of coordination between the ear, nose and throat department and the emergency unit inside the hospital revealed a deficiency in the public hospital service. The court considered that this was sufficient for a finding that the state had failed in its obligation to protect the patient’s physical integrity and accordingly there had been a violation of Article 2. The court held that the length of the proceedings within the Portuguese legal system did not meet the requirement of promptness. It could not accept that proceedings brought for the purposes of shedding light on accusations of medical negligence could last for such a long time. In the court’s view, a prompt reaction was paramount for maintaining public confidence and upholding the rule of law, and to enable the distribution of information to avoid the same errors being repeated and to contribute to the safety of users of the health services. In relation to causation, as none of the experts’ assessments had addressed satisfactorily the question of the possible causal link between the various illnesses suffered by the applicant’s husband two days after undergoing his polypectomy. The court considered that the additional complications were directly related to the infectious meningitis which affected him after the operation (even though he had not died of that condition). The applicant had therefore not obtained explanations as to his cause of death. The court also considered that the domestic courts should have established clearly whether the patient had been duly informed of the complications of the procedure he underwent (for example, meningitis).

Medical Inquests 349

Minority Opinion The minority (Judges Sajó and Tsotsoria), in a separate dissenting opinion, disagreed with the finding that the substantive duty to protect life under Article 2 had been breached, on both factual and jurisprudential grounds. The minority noted that the expert opinions in the domestic proceedings did not find a link between the alleged delay in the diagnosis of meningitis and the death. Accordingly the minority ‘could not understand how an alleged organizational negligence that did not result in death can be construed as the basis of State responsibility for failing to protect life (which is replaced [in the majority judgment] with the term “physical integrity”)’. The minority also considered that ‘the attribution of State responsibility exclusively on the basis of an alleged lack of coordination among the various units of the same hospital radically departs from the principles referred to in the actual judgment itself’, which had held that negligent coordination cannot, in itself, result in the violation of a positive obligation of the state (which in the present case did not in any event result in the death of the applicant’s spouse). In the minority’s view, even with a causal relationship, this would not be enough to find a violation. The minority considered the majority position to represent ‘a radical departure from … established principles without giving specific reasons’. In the minority’s view the court should not micromanage medical care. Other Cases Savage v South Essex Partnership NHS Foundation Trust [2010] EWHC 865 (QB), [2010] HRLR 24 [2008] Inquest LR 126—see Chapter 18 on mental health for a full summary. This important case established that there was a breach of the positive Article 2 obligation to protect life by the state where a psychiatric patient escaped from its care and took her own life, and the state knew or ought to have known of the real and imminent risk to life. Rabone v Pennine Care NHS Trust [2012] UKSC 2, [2012] 2 AC 72, [2012] Inquest LR 1—see Chapter 18 on mental health for a full summary. This case built on the Savage jurisprudence, establishing that the state may also breach the positive Article 2 obligation to protect life in allowing a voluntary psychiatric patient, whose life was at real and imminent risk if discharged, and for whom responsibility had been assumed, to leave hospital resulting in her taking her own life, when if she had tried to leave herself she should have been detained under the Mental Health Act 1983.

B. Neglect (i) R (Clegg) v HM Coroner for Wiltshire Divisional Court CO/1478/96, 2 December 1996, [2000] Inquest LR 96 Keywords: Medical care, neglect A young woman took an overdose at home, was taken to hospital and died 12 hours later. After the inquest her parents complained about the medical care she had received, and an independent review was instigated. The review concluded that her treatment had been ‘grossly inadequate’.4 Her parents sought a fresh inquest as the deceased’s treatment in 4 R (Clegg) v HM Coroner for Wiltshire Divisional Court CO/1478/96, 2 December 1996, [2000] Inquest LR 96, para 12.

350 Isabel McArdle and Kate Beattie

hospital had not been explored in the original inquest. The Divisional Court refused, for although it was likely that neglect had contributed to her death, it was not in the public interest to have a new inquest given the passage of time and the fact that the systemic deficiencies had been identified and rectified. However, Phillips LJ made the following comments regarding the deceased’s care: 25. … In this case the deceased was dependent upon the hospital staff for a period of nearly 12 hours before she died. If the findings of the Review and of the Panel are correct, and there has been no suggestion that they are not correct, the care which she received during that period suffered from a continuous sequence of shortcomings. Those findings suggest that it is at least possible that, but for those shortcomings, her life would have been saved. In these circumstances my conclusion is that, applying the approach in Jamieson, it is possible that if a new inquest were to be held the verdict would be that Lucy killed herself but that neglect contributed to her death.5

(ii) R (Touche) v Inner London North Coroner [2001] EWCA Civ 383, [2001] QB 1206, [2001] Inquest LR 223 Keywords: Medical negligence, neglect, unnatural death A coroner appealed a finding that he had erred in not holding an inquest. The deceased had died from a haemorrhage following giving birth in circumstances which indicated that if her blood pressure had been appropriately monitored shortly prior to her death, she may have survived. The coroner had concluded that she had died a natural death. The appeal was dismissed. The Court of Appeal concluded that an inquest should be held if the coroner has reasonable cause to suspect a wholly unexpected death from natural causes which would not have occurred but for some culpable human failure. Simon Brown LJ said the following at 1214–20: Neglect Sir Thomas Bingham MR, giving the judgment of the court in Ex p Jamieson, conducted a wideranging review of all relevant statutory and judicial authority (including not least a number of earlier cases concerned with lack of care verdicts) and stated 14 general conclusions as to the essential nature of the coroner’s jurisdiction. It is a landmark decision in coronial law, given in the context of a prisoner who had hanged himself in a prison hospital cell. Mr Burnett usefully distilled such of those conclusions as affect the present appeal (in particular conclusions 7 to 12) into the following propositions. 1. Self-neglect is a gross failure to take adequate nourishment or liquid or to obtain basic medical attention or adequate shelter or warmth. 2. Neglect is the obverse of self-neglect. 3. Neglect means a gross failure to provide or procure basic medical attention for someone in a dependent position (for example, because of illness) who cannot provide it for himself. 4. The need for the basic medical attention must be obvious. 5. The crucial consideration is what the condition of the dependent person appeared to be. 6. Neglect can rarely, if ever, be an appropriate verdict on its own but it may be factually accurate to say that it contributed to a death. 7. Neither neglect nor self-neglect should ever form part of a verdict unless a clear and direct causal connection is established between the conduct so described and the cause of death. I did not understand Mr Havers to dissent from this analysis. It follows from this that the critical questions now to be asked under this head are whether, on the evidence presently available, there is reason to suspect, first, that there was a gross failure by the 5

See also Chapter 25 on Reports to Prevent Future Deaths.

Medical Inquests 351 Portland Hospital to provide Mrs Touche (indisputably a dependent in their care) with basic medical attention, and, second, that her need for such attention was obvious at the time. Mr Burnett submits that in addressing these questions the court is not concerned with considerations of fine judgment such as are generally in play in medical negligence actions. The concept of ‘neglect’ involves failure which is, as he puts it, plain as a pikestaff—note the words of emphasis in the Ex p Jamieson formulation: ‘gross’, ‘basic’, ‘obvious’. The hospital’s conduct here, he submits, cannot properly be stigmatised as involving a gross failure to meet an obvious basic need. In submitting the contrary, Mr Havers relies in part on Dr Bogod’s characterisation of the hospital’s failure to monitor Mrs Touche’s blood pressure as ‘astonishing’, and its level of neglect as ‘starkly apparent’; in part on the coroner’s own recognition that the post-operative monitoring was ‘wholly inadequate’; and in part on the acknowledged rarity of maternal death in the United Kingdom. Such a death is simply not to be expected nowadays and its very occurrence, submits Mr Havers, points strongly to a failure of care. There is, the evidence suggests, a basic need for routine blood pressure monitoring in the immediate post-operative phase following a caesarean section under spinal anaesthetic. NHS hospitals apparently meet that need; the Portland Hospital does not. I find Mr Havers’s argument on this part of the case compelling. That, of course, is not to say that if an inquest is now held the coroner (or jury) will be bound to qualify the inevitable verdict of death from natural causes by a reference to ‘neglect’. That would inevitably depend upon the evidence as it emerges and the coroner’s (or jury’s) evaluation of it in the light of appropriate legal directions (or self-directions) based on Ex p Jamieson. Still less, let me make plain at this point, am I indicating any view upon the merits or prospects of success of a very substantial damages claim which apparently Mr Touche has outstanding against the Portland Hospital. Those proceedings are entirely separate from these and everything I have said is without prejudice to them. Who knows what evidence the hospital may have? Rather it is to conclude no more than that upon such material as is presently available to the coroner he could not properly decide otherwise than that there is reasonable cause to suspect that Mrs Touche’s death was (a) at least contributed to by ‘neglect’ (narrowly defined as by Ex p Jamieson) and thus (b) unnatural (as would necessarily follow from Ex p Thomas). … The wider argument I have not thus far addressed the wider point which lies at the heart of this appeal: were the Divisional Court right to hold as they did that, whenever a death takes place in hospital and a failure to provide ‘routine’ treatment is a cause (even a secondary cause) of death, the death is unnatural? It is this holding which so concerns the coroner and, Mr Burnett says, other coroners too. It would result, he suggests, in a very significant increase in the number of inquests to be held. Had the Divisional Court founded their judgments simply on the possibility of a ‘neglect’ verdict, we are told, the coroner would probably not have appealed. Despite my conclusion on the issue of neglect, therefore, I must address the wider point. The first question arising, of course, is whether the Divisional Court’s judgment is consistent with the Court of Appeal’s judgment in Ex p Thomas, which in turn raises the question whether my judgment in that case was reconcilable with those of the majority. With regard to both these questions it is, I fear, necessary to cite from another judgment of mine, this time in the Divisional Court in R v Coroner for Western District of East Sussex, Ex p Homber (1994) 158 JP 357, 370: ‘Although I myself would have been disposed to include within the proper scope of such a verdict [neglect] the death of someone seriously ill or injured who would have been saved by medical care but for wholly unreasonable delay in the arrival of the emergency services, such a view is obviously

352 Isabel McArdle and Kate Beattie inconsistent with the majority decision of the Court of Appeal in [Ex p Thomas]. That is not to say, however, that a lack of care verdict, whether freestanding or in terms of aggravating some other cause of death, would offend Ex p Thomas. On the contrary, Dillon LJ’s judgment clearly recognises the legitimate continuance of such verdicts whenever properly founded on the facts. I would therefore accept Mr Fitzgerald’s submission that Ex p Thomas must be confined to the section 8(1)(a) context in which it arose; essentially it decides no more than that a broad common sense view must be taken when deciding the bald question whether a death is unnatural so as to determine whether to hold an inquest. Whereas, however, for that purpose one shuts one’s mind to all but the dominant cause of death, once an inquest is held, the duty to inquire into “how the deceased came by his death” requires one then to take a broader view and investigate not merely the dominant but also (in Jervis’s language) any “acts or omissions which are directly responsible for the death”.’ A little later on I referred to my own judgment in Ex p Thomas as ‘not a dissenting judgment but clearly expressing a minority view’. As is plain from that passage, I was then regarding my view in Ex p Thomas as incompatible with the majority view. Revisiting the cases, I have to say that that remains my understanding. Subject only to ‘neglect’ cases (a category which I suspect the majority in Ex p Thomas would have drawn even more narrowly than Ex p Jamieson does), Dillon LJ was, I believe, inviting the broadest view to be taken of causation so as simply to determine ‘the dominant cause of death’ as I called it in Ex p Homber. I accordingly find it puzzling not merely that the Divisional Court in the present case found no conflict within the Ex p Thomas judgments but also that the editors of both Halsbury’s Laws and Halsbury’s Statutes cite Ex p Thomas as authority for the proposition that ‘cases may well arise in which human fault can and properly should be found to turn what would otherwise be a natural death into an unnatural one, and one into which therefore an inquest should be held’, a proposition of mine in which I had thought, and still think, I was differing from the majority view. How then ought this court now to proceed? The doctrine of precedent clearly suggests that the majority view in Ex p Thomas should be applied and the Divisional Court’s reasoning in the present case accordingly rejected. I nevertheless question whether many today would find the majority view in Ex p Thomas (certainly in the way I understand it) entirely satisfactory. Consider, for example, the very real doubt now thrown upon the usefulness of Lord Salmon’s dictum in Alphacell Ltd v Woodward [1972] AC 824—a dictum central to Dillon LJ’s reasoning—as to causation being simply a matter of ordinary common sense, by Lord Hoffmann’s illuminating lecture ‘Common Sense and Causing Loss’ (delivered to the Chancery Bar Association on 15 June 1999). As Lord Hoffmann explains, to get to the right answer on an issue of causation it is necessary first to identify the question and in formulating the question it is necessary to look at the rule of law which requires it to be asked. What policy underlies it? When deciding, therefore, whether or not for section 8(1)(a) purposes a death is unnatural, one should be considering why Parliament has included this category of deaths amongst those into which an inquest must be held. What is it about unnatural deaths that calls for an inquest? Is there not a powerful case for saying that an inquest should be held whenever a wholly unexpected death, albeit from natural causes, results from some culpable human failure? (Or, more strictly, whenever the coroner has reasonable grounds to suspect that such is the case.) Such deaths prompt understandable public concern and surely no small part of the coroner’s function is to carry out an appropriate investigation to allay such concern. Is that not indeed the approach which the editors of the respective Halsbury’s series appear to derive from Ex p Thomas? As we now learn, moreover, it appears consistent too with the approach coroners up and down the country take to certain rare deaths such as those from Legionnaires Disease. In Ex p Thomas we were given to understand that inquests are held into these deaths because

Medical Inquests 353 ‘it is regarded, on a broad view, as unnatural that a person should die of an extremely rare disease’. Now we are told that such inquests are held because ‘the disease is caused by the mechanical spraying of infected water into the atmosphere. This act is unnatural and may be unlawful and the disease is seen as occurring unnaturally—unlike hypertension which occurs very naturally indeed. The holding of an inquest in such cases has nothing to do with the fact that the death may be rare …’ ‘The mechanical spraying of infected water into the atmosphere’ I take to refer to the effect of inadequately maintained airconditioning systems. Quite why that is said to be unnatural whereas inadequate monitoring which allows hypertension (itself, of course, ‘very natural’) to develop into death from cerebral haemorrhage is said to be natural, I have some difficulty in understanding. Given our conclusion on the narrow point—that inquests should in any event be held into cases like this because of the possibility of a ‘neglect’ verdict, the resolution of the wider point is clearly of less significance than it would otherwise be. … But undoubtedly there will be cases which fall outside the category of ‘neglect’ and yet appear to call for an inquest on the basis already indicated, namely, cases involving a wholly unexpected death from natural causes which would not have occurred but for some culpable human failure, a category of cases already perhaps recognised by the editors of Halsbury’s Laws and Statutes. It is the combination of their unexpectedness and the culpable human failing that allowed them to happen which to my mind makes such deaths unnatural. Deaths by natural causes though undoubtedly they are, they should plainly never have happened and in that sense are unnatural. An inquest will, of course, be held only if the coroner has reasonable cause to suspect such a combination of circumstances. That does not mean that he will have to make detailed investigations into every hospital death. Mr Burnett’s fears in this regard are to my mind misplaced. Nor would I expect such a view of the law to involve any substantial increase in the number of inquests now requiring to be held. I need hardly add that this approach must not be allowed to circumvent the clear bar constituted by rule 42 of the Coroners Rules 1984 (SI 1984/552): the verdict must not appear to determine any question of criminal liability on the part of a named person or any question of civil liability. It follows from all this that I for my part would have upheld the judgment below even had I not concluded that an inquest was in any event required here because of the possibility of a ‘neglect’ verdict (not itself a violation of rule 42: see Ex p Jamieson).

See also R (Bicknell) v HM Coroner for Birmingham/Solihull below.6

C. Witnesses (i) R (Mack) v HM Coroner for Birmingham & Solihull [2011] EWCA Civ 712, [2011] Inquest LR 17 Keywords: Medical care, witnesses This case concerned the hospital death of the claimant’s husband, who died at the age of 77 approximately three and a half weeks after elective surgery for a hip replacement. After the

6

R (Bicknell) v HM Coroner for Birmingham/Solihull [2007] EWHC 2547 (Admin), [2007] Inquest LR 244.

354 Isabel McArdle and Kate Beattie

surgery he suffered a chest infection, diarrhoea and tested positive for Clostridium difficile. He was admitted to intensive care where his condition deteriorated, he suffered a cardiac arrest and died. The post-mortem found some coronary heart disease and concluded that the cause of death was coronary heart disease exacerbated by Clostridium difficile. The deceased’s wife complained about several aspects of the inquest, in particular about the coroner’s decision as to which witnesses to call and not to call and about his decision to sit without a jury. The Court of Appeal held that the coroner had erred in not calling any doctor who had responsibility for Mr Mack’s treatment during the time that he was on the Clostridium difficile Cohort Ward. Lord Justice Toulson stated: We are not here concerned with a case where there was one individual failing. There appear to have been a whole series of failings, and the natural person to be asked to try to help explain them would have been somebody who had some knowledge and responsibility in relation to the ward where Mr Mack was being treated. I am not suggesting that in every case of a hospital death there needs to be a doctor from every ward where the patient may have been; it is a fact-specific question; but the facts of the case were such as to cause very considerable concern. Let me take a few examples. Dr Ayuk [the consultant endocrinologist] could agree that the completion of the fluid charts was unsatisfactory, but he could not of course assist as to whether this was a one-off lapse on that ward at that time or whether there was a systemic problem and what it was. I have already made comments about the unsatisfactory history of administration of drugs. The only person who one might expect to be able to say whether there was a systemic problem that was affecting the treatment of that cohort, and what was done about it, was the consultant, or possibly a registrar, who was working on the ward at the time. There is then the problem of Mr Mack’s condition two days before his death on 23 June when Dr Pathmakanthan [a consultant gastro-enterologist] formed a plan which involved taking further blood tests, an ECG and close monitoring, none of which was properly followed up. 21. These matters were pursued as far as they could be with Dr Ayuk in his evidence but there were inevitably limitations in how far they could be taken. Dr Ayuk agreed that severe dehydration could play a part in precipitating a cardiac death. Mr Hough said that the nature of that question is such that nobody else could have said anymore about it. However, what Dr Pathmakanthan potentially would have been expected to say is something about the condition of Mr Mack. The judgment he formed is a rather different matter from another doctor doing the best that he can from someone else’s notes. Dr Ayuk agreed that the creatinine level was a marker of dehydration, but he said that trying to determine his dehydration level was inevitably very subjective. To ask a consultant, however able, to form a judgment as to the degree of dehydration of a patient whom he has not seen from a blood test is a very different proposition from asking the doctor who had actually seen him and who had formed a plan based on his clinical observations of the patient. One cannot know for certain how far Dr Pathmakanthan would have been able to answer such questions a year after the event, but it is plain that there were limits as to how far Dr Ayuk could go, and I am not satisfied that any truly rational ground has been shown for saying that it was not appropriate to explore those matters with the responsible consultant, given the variety and troubling nature of the many shortcomings. The explanation that the coroner’s general practice was to accept the nominee put by the hospital is not, with respect, a satisfactory explanation.

The Court quashed the inquest and ordered that a new inquest be heard before a different coroner. The Court declined to determine whether the new inquest should be heard with a jury, as this was a matter that should be determined by the coroner on submissions made to him or her. See also Chapter 9 on witnesses.

Medical Inquests 355

D. Conclusions (Formerly Verdicts) (i) R (Benton) v HM Coroner for Birmingham and Solihull (1998) 162 JP 807, [2000] Inquest LR 72 Keywords: Medical care, conclusions, accident/misadventure The deceased, a child, died in hospital after developing difficulties with his breathing and having attended four hospitals. He underwent bronchoscopy. He suffered a cardiac arrest from which he could not be resuscitated. The pathologist concluded that the deceased died from bilateral tension pneumothorax due to artificial ventilation, acute tracheobronchitis and bronchiolitis. Bilateral tension pneumothorax is a condition which does not occur naturally and involves excessive air pressure in the lungs. This causes air to leak from the lungs into the pleural cavity causing the lungs to be compressed and can result from a tear in the lining of the lung which might be due to ventilation or the pre-existing condition of the lungs. The inquest was held with a jury and heard from independent experts. The jury concluded that the death was from natural causes. The deceased’s mother sought to quash the verdict on the basis of the summing up of the coroner, which she said had the effect of withdrawing from the jury the possibility of any other verdict. The Court considered the verdicts of natural causes7 and accident/misadventure8 where death has occurred in the course of medical treatment. 24. It is necessary to contrast two possible situations. The first is where a person is suffering from a potentially fatal condition and medical intervention does no more than fail to prevent that death. In such circumstances the underlying cause of death is the condition that proved fatal and in such a case, the correct verdict would be death from natural causes. This would be the case even if the medical treatment that had been given was viewed generally by the medical profession as the wrong treatment. All the more so is this the case where such a person is not treated at all even if the failure to give the treatment was negligent. Thus in such circumstances the recording of a verdict of death by natural causes is not in any way a finding that there was no fault on the part of the doctors. That question for the reasons already explained is not one that the inquest does, or is permitted to, address. 25. On the other hand, where a person is suffering from a condition which does in any way threaten his life and such person undergoes treatment which for whatever reason causes death. Then assuming that there is no question of unlawful killing the verdict should be death by accident/misadventure. Just as the recording of death by natural causes does not absolve the doctors of fault so the recording of death by accident/misadventure does not imply fault. 26. This view is supported by the decision of the Court of Appeal in R. v. Poplar Coroner, ex parte Thomas [1993] QB 610. That was [a] case where the deceased had suffered an asthmatic attack, an

7 8

R (Benton) v HM Coroner for Birmingham and Solihull (1998) 162 JP 807, [2000] Inquest LR 72, 76. ibid 75–76.

356 Isabel McArdle and Kate Beattie ambulance had been summoned but there had been a substantial delay in its arrival. The Coroner had concluded that the cause of death was the asthmatic attack, and that it was not an unnatural death. In consequence he had held an inquest. The decision was challenged and in due course was considered by the Court of Appeal. Dillon LJ with those reasoning Farquharson LJ agreed, dealt with the matter in this way at page 628: ‘In the present case the complaint is that the chance of saving Miss Thomas’s life was lost because such a long time, 33 minutes, elapsed between the first abortive “999” call and the actual arrival of the ambulance at the place where Miss Thomas was lying. But it is easy to think of a variety of different scenarios as a result of which an ambulance could have arrived too late to save a patient who suffered a severe attack of asthma like Miss Thomas’s, e.g. (i) the distance from the ambulance centre to the patient’s home was too great for there to have ever been any chance of the ambulance arriving in time to save the patient; (ii) there was much more traffic than normal in the locality and so the ambulance was delayed and arrived just too late; (iii) the ambulance was diverted on its journey and had to take a much longer route because of flooding caused by a burst water main, which may have been due to lack of proper maintenance by the company; (iv) a newly installed computer installed by the ambulance service to handle emergency calls more efficiently malfunctioned, as newly installed computers are prone to; or (v) the ambulance came late because the ambulance crew were inefficient and the management was slack. I do not suggest that any of these scenarios actually fits the facts of Miss Thomas’s case. I do not know what the cause of delay was. But in each of these scenarios common sense indicates that what caused the patient’s death was, on Lord Salmon’s test in Alphacell v. Woodward [1972] AC 824, 847, the asthmatic attack, not the congestion of the traffic, the bursting of the water main, the malfunction of the computer or the inefficiency of the ambulance service. But the asthmatic attack is a natural cause of death, and the death is not, in my judgment turned into an unnatural death by any of the facts suggested in any of the alternative scenarios. The Divisional Court criticised the coroner for concentrating on the medical cause of death to the exclusion of all other evidence. I do not think the criticism is justified. The coroner was not excluding the other evidence; he was saying that, even when all the other evidence is taken into account, the cause of death was still the asthmatic attack and the death was not an unnatural death. That is also my view for the reasons I have endeavoured to give.

Kay J concluded: 31. In the light of the entire evidence, to which I have regard and of which the passages quoted are merely illustrative, I find it impossible to conclude that this case falls so clearly on one side of the divide between death by natural causes and death by accident/misadventure that it was not an issue for the jury to decide. On one view, Robert was a child with a potentially life threatening condition and the attempts to treat him simply failed to prevent his death. On the other, the treatment, whether it was the right treatment or not, actually brought about his death by causing the tear to the lung that in turn caused the pneumothoraces that resulted in death. Accordingly the issue as to which was correct verdict should have been left for the jury to decide with the distinction between the two being explained to them. Since they were not afforded the opportunity to reach that conclusion their verdict of death by natural causes has to be viewed as flawed and cannot be allowed to stand.

The Court declined to order a new inquest or substitute the conclusion. The Court quashed the conclusion and redrafted the factual statement of the circumstances of the death. See also Chapter 15 on conclusions.

Medical Inquests 357

(ii) R (Bicknell) v HM Coroner for Birmingham/Solihull [2007] EWHC 2547 (Admin), [2007] Inquest LR 244 Keywords: Medical care, conclusions, mental health, unnatural death This case concerned the coroner’s decision not to hold an inquest into the death of the claimant’s father, LV, who suffered from mental health problems and died at a nursing home not long after being admitted from a local hospital. The year following the death, the claimant was contacted by the National Care Standards Commission which was investigating standards at the home. The Commission subsequently indicated an intention to close the home compulsorily. However, this did not happen as the owners closed the home voluntarily before the Commission took that step. There were other investigations into standards by the Strategic Health Authority. The General Medical Council (GMC) also took disciplinary action against the two GPs who owned and operated the home. The claimant argued that the coroner’s decision not to hold an inquest was irrational and in breach of Article 2 ECHR. She argued that the coroner had focused on factors of concern about the running of the nursing home and treatment of patients and concluded that they were not shown to be directly causative of the death. In so doing the coroner had overlooked the matters in the expert report that did relate specifically to LV’s death. McCombe J held that the coroner had erred in his decision not to hold an inquest: 22. I was, of course, referred to the decision of the Court of Appeal in R (Touche) v Inner London North Coroner [2001] QB 1206; [2001] EWCA Civ 383. 23. In that case, the deceased, having given birth by caesarean section, died of severe hypertension following inadequate monitoring of her blood pressure in the immediate post-operative phase. The initial report to the Coroner in that case gave no cause for concern and the Coroner found no need to hold an inquest. Accordingly, a cremation took place. The fact of the cremation was not made known to the Court in the course of proceedings until the case had reached the Court of Appeal. The claimant in the proceedings, who was the husband of the deceased, had succeeded in the Divisional Court in his challenge to the Coroner’s decision under Section 8. The Court of Appeal found, however, that while the Coroner’s original decision could not be impugned he should have concluded that an inquest ‘ought to be held’ and that a report to the Secretary of State was the way forward. 24. The appeal in Touche’s case was concerned with two points which the Court called the ‘narrow ground’ and the ‘wider ground’, as advanced by the respondent for upholding the decision of the Divisional Court. The Court of Appeal accepted that the decision allowing the claimant’s judicial review application had been correct on the ‘narrow ground’ (not argued in the Divisional Court) that it would be open to the coroner (or jury) to return a verdict that the death was caused or contributed to by ‘neglect’. The conclusion was that inquests ought to be held in such cases because of the possibility of a ‘neglect’ verdict. However, it was also held that there will be cases falling outside the category of ‘neglect’ which appear to call for an inquest on the basis that they involve a wholly unexpected death from natural causes which would not have occurred but for some culpable human failure. Unexpectedness and culpable human failing make such deaths ‘unnatural’: see per Simon Brown LJ at paragraph 46 of the judgments. 25. In the same case Robert Walker LJ said that ‘unnatural’ means little more than abnormal and unexpected. He doubted whether the naturalness or unnaturalness of a death should be determined exclusively in terms of causation, especially if that is seen as requiring a search for a single dominant cause of death. In his Lordship’s view the better way forward is to look for a combination

358 Isabel McArdle and Kate Beattie of circumstances rather than a single dominant cause: see paragraphs 61–62. Adopting slightly different reasoning, Keene LJ emphasised that there may be more than one cause of death in any given situation. 26. In my judgment, in the light of Dr. Boyd’s report and many other factors, the Coroner should have decided that an inquest ‘ought to be held’ and should have reported the facts to the Secretary of State under section 15 of the Act. I take that view on the basis of either the ‘narrower ground’ or the ‘wider ground’ that persuaded the Court of Appeal in the Touche case. I consider that the decision to the contrary was Wednesbury unreasonable, although taken conscientiously and carefully. 27. In my view, if a failure to monitor blood pressure in the circumstances of the Touche case gave rise to a conclusion that an inquest ought to be held, then the present case is an even clearer one. Dr. Boyd raises the distinct possibility that Mr. Vines’ death from a ‘natural’ cause was caused or contributed to by the excessive doses of the anti-psychotic drug, coupled with the restrictive effect of the bucket chair and the possible failure to give adequate anti-biotic treatment once pneumonia set in. To my mind, those circumstances together with Mrs. Bicknell’s observations clearly gave rise to ‘reasonable cause to suspect’ that Mr. Vines had died an unnatural death within the meaning of Section 8 of the Act. I think there is force in the criticism made on Mrs. Bicknell’s behalf that paragraph 23 of the Coroner’s statement indicates an excessive focus by him on a perceived requirement to demonstrate a causative link between the death and the improper behaviour or treatment. Such an approach goes further than the requirement of ‘reasonable cause to suspect …’. 28. In my judgment, by the time of the intervention on Mrs. Bicknell’s behalf, the other factors of concern as to the care standards at the home ought also to have added impetus to a decision that an inquest ‘ought to be held’. The circumstances touching upon Mr. Vines’ death, including Dr. Boyd’s report and Mrs. Bicknell’s observations are telling enough, but when one adds to those the more general concerns raised by other investigations, it becomes a compelling conclusion that there is reasonable cause to suspect an unnatural death. Here was a suspicious death occurring in a care home where substantial doubts as to the standards of care had already emerged.

The Court considered it unnecessary to decide the issue raised under Article 2 ECHR.

18 Inquests Concerning Mental Health and Capacity RICHARD MUMFORD AND RACHEL MARCUS

I. Overview A. Mental Health Inquests This chapter will address the key issues in relation to inquests where an issue regarding the mental health or capacity of the deceased arises. The following are examples of the type of situation in which an awareness of relevant mental health and capacity legislation and practice will be essential: —— Deaths of patients detained under the Mental Health Act 1983 (MHA 1983) in either NHS or private psychiatric hospitals; —— Deaths of patients under community treatment orders/cared for in the community; —— Deaths in the community of individuals without a formal diagnosis but who have come to the notice of their GP, for example, through an act of self-harm. Whilst many of these will involve acts of self-harm, inquests may also involve the death of individuals with mental health concerns or in the care of mental health services where the cause of death may be an undiagnosed or untreated physical illness. It will be apparent that some if not all of the above scenarios may overlap with topics addressed elsewhere in this book (such as medical inquests,1 deaths in custody2 and Article 2)3 and readers are invited to refer to those chapters as necessary. The particular function of this chapter will be to set out some of the key materials in relation to inquests with a mental health aspect. Section V sets out practical matters to be considered in the conduct of mental health inquests, including the types of oral and documentary evidence which may be called for; Section VII deals briefly with some of the specific issues in relation to conclusions.

1

Chapter 17. Chapter 20. 3 Chapter 7. 2

360 Richard Mumford and Rachel Marcus

B. Mental Capacity and Deprivation of Liberty Safeguards In any medical inquest issues may arise, for example, as to an individual’s capacity to refuse medical or psychiatric treatment and it is important to be aware of the relevant legislation and guidance in this regard under the Mental Capacity Act 2005. Someone who lacks capacity may be detained in a care home or hospital for the purpose of receiving care or treatment. This detention may amount to a deprivation of liberty and must also be authorised under the Mental Capacity Act under what are known as the Deprivation of Liberty Safeguards, or DoLS.4 When someone dies whilst subject to DoLS various questions will arise for the coroner, the most important of which is whether that person must automatically be treated as being in ‘state detention’ within the meaning of section 7(2)(a) of the Coroners and Justice Act 2009 (CJA 2009) and whether the coroner is therefore obliged to investigate.5 The Chief Coroner’s Guidance No 16, ‘Deprivation of Liberty Safeguards (DoLS)’ sets out a useful summary of the DoLS regime which is reproduced in Appendix X for the convenience of the reader. It also indicates his position that persons subject to DoLS are in state detention and that an inquest must therefore be held. The Chief Coroner has also observed that the Article 2 procedural duty (ie to hold a Middleton-type inquest) ‘may … arguably arise where the death is not from natural causes and/or the fact of detention under [DoL safeguards] may be a relevant factor in the cause of death’.6

II. Legislation and Other Sources A. Mental Health Act 1983 The MHA 1983 is by any standard a complex and detailed piece of legislation. It has been much amended over the years and various amendments are pending at the time of writing. What are set out below are the current versions of those sections (or parts of sections) of the Act considered most likely to be referred to or relied upon in the inquest setting.

(i) Admission to Hospital (‘Sectioning’) Perhaps the most important provisions of the 1983 Act are those providing the power to admit a patient to hospital, which are found in sections 2–4 of the 1983 Act, as follows: 2. Admission for assessment (1) A patient may be admitted to a hospital and detained there for the period allowed by subsection (4) below in pursuance of an application (in this Act referred to as ‘an application for admission for assessment’) made in accordance with subsections (2) and (3) below. 4

The relevant provisions are reproduced in Section II. below. See Chapter 3 on the duty to hold an inquest. 6 Chief Coroner’s Guidance No 16, ‘Deprivation of Liberty Safeguards (DoLS)’, para 63. 5

Inquests Concerning Mental Health and Capacity 361 (2) An application for admission for assessment may be made in respect of a patient on the grounds that— (a) he is suffering from mental disorder of a nature or degree which warrants the detention of the patient in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; and (b) he ought to be so detained in the interests of his own health or safety or with a view to the protection of other persons. (3) An application for admission for assessment shall be founded on the written recommendations in the prescribed form of two registered medical practitioners, including in each case a statement that in the opinion of the practitioner the conditions set out in subsection (2) above are complied with. (4) Subject to the provisions of section 29(4) below, a patient admitted to hospital in pursuance of an application for admission for assessment may be detained for a period not exceeding 28 days beginning with the day on which he is admitted, but shall not be detained after the expiration of that period unless before it has expired he has become liable to be detained by virtue of a subsequent application, order or direction under the following provisions of this Act. 3. Admission for treatment (1) A patient may be admitted to a hospital and detained there for the period allowed by the following provisions of this Act in pursuance of an application (in this Act referred to as ‘an application for admission for treatment’) made in accordance with this section. (2) An application for admission for treatment may be made in respect of a patient on the grounds that— (a) he is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and … (c) it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section; and (d) appropriate medical treatment is available for him. (3) An application for admission for treatment shall be founded on the written recommendations in the prescribed form of two registered medical practitioners, including in each case a statement that in the opinion of the practitioner the conditions set out in subsection (2) above are complied with; and each such recommendation shall include— (a) such particulars as may be prescribed of the grounds for that opinion so far as it relates to the conditions set out in paragraphs (a) and (d)of that subsection; and (b) a statement of the reasons for that opinion so far as it relates to the conditions set out in paragraph (c) of that subsection, specifying whether other methods of dealing with the patient are available and, if so, why they are not appropriate. (4) In this Act, references to appropriate medical treatment, in relation to a person suffering from mental disorder, are references to medical treatment which is appropriate in his case, taking into account the nature and degree of the mental disorder and all other circumstances of his case.

362 Richard Mumford and Rachel Marcus 4. Admission for assessment in cases of emergency (1) In any case of urgent necessity, an application for admission for assessment may be made in respect of a patient in accordance with the following provisions of this section, and any application so made is in this Act referred to as ‘an emergency application’. (2) An emergency application may be made either by an approved mental health professional or by the nearest relative of the patient; and every such application shall include a statement that it is of urgent necessity for the patient to be admitted and detained under section 2 above, and that compliance with the provisions of this Part of this Act relating to applications under that section would involve undesirable delay. (3) An emergency application shall be sufficient in the first instance if founded on one of the medical recommendations required by section 2 above, given, if practicable, by a practitioner who has previous acquaintance with the patient and otherwise complying with the requirements of section 12 below so far as applicable to a single recommendation, and verifying the statement referred to in subsection (2) above. (4) An emergency application shall cease to have effect on the expiration of a period of 72 hours from the time when the patient is admitted to the hospital unless— (a) the second medical recommendation required by section 2 above is given and received by the managers within that period; and (b) that recommendation and the recommendation referred to in subsection (3) above together comply with all the requirements of section 12 below (other than the requirement as to the time of signature of the second recommendation). (5) In relation to an emergency application, section 11 below shall have effect as if in subsection (5) of that section for the words ‘the period of 14 days ending with the date of the application’ there were substituted the words ‘the previous 24 hours’.

(ii) Treatment in Hospital Whilst in hospital, there is a power to provide treatment to the patient. The patient must consent to the administration of medication if more than three months have elapsed since it was first given;7 however, section 62 provides for the administration of treatment where it is necessary to save the patient’s life or to prevent him from being a danger to himself or others: 62. Urgent treatment (1) Sections 57 and 58 above shall not apply to any treatment— (a) which is immediately necessary to save the patient’s life; (b) which (not being irreversible) is immediately necessary to prevent a serious deterioration of his condition; or (c) which (not being irreversible or hazardous) is immediately necessary to alleviate serious suffering by the patient; or (d) which (not being irreversible or hazardous) is immediately necessary and represents the minimum interference necessary to prevent the patient from behaving violently or being a danger to himself or to others. 7

Mental Health Act 1983, s 58.

Inquests Concerning Mental Health and Capacity 363

(iii) Leave and Community Treatment Orders Section 17 deals with the process by which patients are permitted temporarily to leave a hospital whilst subject to detention under the Mental Health Act. Section 17A deals with the process by which a patient may be discharged from hospital but with the power to recall them imposed via a community treatment order, with section 17B dealing with the conditions which may be attached to such an order. Section 17E details the powers to recall a patient under a community treatment order. 17. Leave of absence from hospital (1) The responsible clinician may grant to any patient who is for the time being liable to be detained in a hospital under this Part of this Act leave to be absent from the hospital subject to such conditions (if any) as that clinician considers necessary in the interests of the patient or for the protection of other persons. (2) Leave of absence may be granted to a patient under this section either indefinitely or on specified occasions or for any specified period; and where leave is so granted for a specified period, that period may be extended by further leave granted in the absence of the patient. (2A) But longer-term leave may not be granted to a patient unless the responsible clinician first considers whether the patient should be dealt with under section 17A instead. (2B) For these purposes, longer-term leave is granted to a patient if— (a) leave of absence is granted to him under this section either indefinitely or for a specified period of more than seven consecutive days; or (b) a specified period is extended under this section such that the total period for which leave of absence will have been granted to him under this section exceeds seven consecutive days. (3) Where it appears to the responsible clinician that it is necessary so to do in the interests of the patient or for the protection of other persons, he may, upon granting leave of absence under this section, direct that the patient remain in custody during his absence; and where leave of absence is so granted the patient may be kept in the custody of any officer on the staff of the hospital, or of any other person authorised in writing by the managers of the hospital or, if the patient is required in accordance with conditions imposed on the grant of leave of absence to reside in another hospital, of any officer on the staff of that other hospital. (4) In any case where a patient is absent from a hospital in pursuance of leave of absence granted under this section, and it appears to the responsible clinician that it is necessary so to do in the interests of the patient’s health or safety or for the protection of other persons, that clinician may, subject to subsection (5) below, by notice in writing given to the patient or to the person for the time being in charge of the patient, revoke the leave of absence and recall the patient to the hospital. (5) A patient to whom leave of absence is granted under this section shall not be recalled under subsection (4) above after he has ceased to be liable to be detained under this Part of this Act. (6) Subsection (7) below applies to a person who is granted leave by or by virtue of a provision— (a) in force in Scotland, Northern Ireland, any of the Channel Islands or the Isle of Man; and (b) corresponding to subsection (1) above. (7) For the purpose of giving effect to a direction or condition imposed by virtue of a provision corresponding to subsection (3) above, the person may be conveyed to a place in, or kept in custody

364 Richard Mumford and Rachel Marcus or detained at a place of safety in, England and Wales by a person authorised in that behalf by the direction or condition. 17A. Community treatment orders (1) The responsible clinician may by order in writing discharge a detained patient from hospital subject to his being liable to recall in accordance with section 17E below. (2) A detained patient is a patient who is liable to be detained in a hospital in pursuance of an application for admission for treatment. (3) An order under subsection (1) above is referred to in this Act as a ‘community treatment order’. (4) The responsible clinician may not make a community treatment order unless— (a) in his opinion, the relevant criteria are met; and (b) an approved mental health professional states in writing— (i) that he agrees with that opinion; and (ii) that it is appropriate to make the order. (5) The relevant criteria are— (a) the patient is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment; (b) it is necessary for his health or safety or for the protection of other persons that he should receive such treatment; (c) subject to his being liable to be recalled as mentioned in paragraph (d) below, such treatment can be provided without his continuing to be detained in a hospital; (d) it is necessary that the responsible clinician should be able to exercise the power under section 17E(1) below to recall the patient to hospital; and (e) appropriate medical treatment is available for him. (6) In determining whether the criterion in subsection (5)(d) above is met, the responsible clinician shall, in particular, consider, having regard to the patient’s history of mental disorder and any other relevant factors, what risk there would be of a deterioration of the patient’s condition if he were not detained in a hospital (as a result, for example, of his refusing or neglecting to receive the medical treatment he requires for his mental disorder). (7) In this Act— ‘community patient’ means a patient in respect of whom a community treatment order is in force; ‘the community treatment order’, in relation to such a patient, means the community treatment order in force in respect of him; and ‘the responsible hospital’, in relation to such a patient, means the hospital in which he was liable to be detained immediately before the community treatment order was made, subject to section 19A below.

Section 17B deals with the conditions which may be attached to a community treatment order: if the patient’s responsible clinician thinks them necessary and appropriate. Section 17C deals with the duration of a community treatment order; section 17D clarifies that the application for admission to hospital does not cease to take effect but that there is no authority to hold him whilst he remains under the community treatment order.

Inquests Concerning Mental Health and Capacity 365 17E. Power to recall to hospital (1) The responsible clinician may recall a community patient to hospital if in his opinion— (a) the patient requires medical treatment in hospital for his mental disorder; and (b) there would be a risk of harm to the health or safety of the patient or to other persons if the patient were not recalled to hospital for that purpose. (2) The responsible clinician may also recall a community patient to hospital if the patient fails to comply with a condition specified under section 17B(3) above. (3) The hospital to which a patient is recalled need not be the responsible hospital. (4) Nothing in this section prevents a patient from being recalled to a hospital even though he is already in the hospital at the time when the power of recall is exercised; references to recalling him shall be construed accordingly. (5) The power of recall under subsections (1) and (2) above shall be exercisable by notice in writing to the patient. (6) A notice under this section recalling a patient to hospital shall be sufficient authority for the managers of that hospital to detain the patient there in accordance with the provisions of this Act.

Section 17F sets out the powers in respect of patients who have been recalled to hospital under section 17E and the revoking of the community treatment order. Section 18 deals with the return and readmission of patients absent without leave.

(iv) Discharging a Patient from Detention 23. Discharge of patients (1) Subject to the provisions of this section and section 25 below, a patient who is for the time being liable to be detained or subject to guardianship under this Part of this Act shall cease to be so liable or subject if an order in writing discharging him absolutely from detention or guardianship is made in accordance with this section. (1A) Subject to the provisions of this section and section 25 below, a community patient shall cease to be liable to recall under this Part of this Act, and the application for admission for treatment cease to have effect, if an order in writing discharging him from such liability is made in accordance with this section. (1B) An order under subsection (1) or (1A) above shall be referred to in this Act as ‘an order for discharge’. (2) An order for discharge may be made in respect of a patient— (a) where the patient is liable to be detained in a hospital in pursuance of an application for admission for assessment or for treatment by the responsible clinician, by the managers or by the nearest relative of the patient; (b) where the patient is subject to guardianship, by the responsible clinician, by the responsible local social services authority or by the nearest relative of the patient; (c) where the patient is a community patient, by the responsible clinician, by the managers of the responsible hospital or by the nearest relative of the patient. …

366 Richard Mumford and Rachel Marcus

(v) Criminal Proceedings: Hospital Orders, Restriction Orders and Transfer of Prisoners to Hospital Where the court is satisfied that a convicted person is suffering from a mental disorder, it can make a hospital order under section 37 to ensure that the prisoner is sent to hospital rather than to prison. Section 41 ensures that the criminal courts and the Secretary of State can retain jurisdiction over the prisoner so as to restrict his discharge, leave or treatment in the community. Section 47 covers the transfer of prisoners to hospital if it is deemed necessary by virtue of their mental health. 37. Powers of courts to order hospital admission or guardianship (1) Where a person is convicted before the Crown Court of an offence punishable with imprisonment other than an offence the sentence for which is fixed by law … 1, or is convicted by a magistrates’ court of an offence punishable on summary conviction with imprisonment, and the conditions mentioned in subsection (2) below are satisfied, the court may by order authorise his admission to and detention in such hospital as may be specified in the order or, as the case may be, place him under the guardianship of a local social services authority or of such other person approved by a local social services authority as may be so specified. (1A) … (2) The conditions referred to in subsection (1) above are that— (a) the court is satisfied, on the written or oral evidence of two registered medical practitioners, that the offender is suffering from mental disorder and that either— (i) the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and appropriate medical treatment is available for him; or (ii) in the case of an offender who has attained the age of 16 years, the mental disorder is of a nature or degree which warrants his reception into guardianship under this Act; and (b) the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section. (3) Where a person is charged before a magistrates’ court with any act or omission as an offence and the court would have power, on convicting him of that offence, to make an order under subsection (1) above in his case, then, if the court is satisfied that the accused did the act or made the omission charged, the court may, if it thinks fit, make such an order without convicting him. (4) An order for the admission of an offender to a hospital (in this Act referred to as ‘a hospital order’) shall not be made under this section unless the court is satisfied on the written or oral evidence of the approved clinician who would have overall responsibility for his case or of some other person representing the managers of the hospital that arrangements have been made for his admission to that hospital, and for his admission to it within the period of 28 days beginning with the date of the making of such an order; and the court may, pending his admission within that period, given such directions as it thinks fit for his conveyance to and detention in a place of safety. (5) If within the said period of 28 days it appears to the Secretary of State that by reason of an emergency or other special circumstances it is not practicable for the patient to be received into

Inquests Concerning Mental Health and Capacity 367 the hospital specified in the order, he may give directions for the admission of the patient to such other hospital as appears to be appropriate instead of the hospital so specified; and where such directions are given— (a) the Secretary of State shall cause the person having the custody of the patient to be informed, and (b) the hospital order shall have effect as if the hospital specified in the directions were substituted for the hospital specified in the order. (6) … … 41. Power of higher courts to restrict discharge from hospital 41(1) Where a hospital order is made in respect of an offender by the Crown Court, and it appears to the court, having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large, that it is necessary for the protection of the public from serious harm so to do, the court may, subject to the provisions of this section, further order that the offender shall be subject to the special restrictions set out in this section; and an order under this section shall be known as ‘a restriction order’. (2) A restriction order shall not be made in the case of any person unless at least one of the registered medical practitioners whose evidence is taken into account by the court under section 37(2) (a) above has given evidence orally before the court. (3) The special restrictions applicable to a patient in respect of whom a restriction order is in force are as follows— (a) none of the provisions of Part II of this Act relating to the duration, renewal and expiration of authority for the detention of patients shall apply, and the patient shall continue to be liable to be detained by virtue of the relevant hospital order until he is duly discharged under the said Part II or absolutely discharged under section 42, 73, 74 or 75 below; (aa) none of the provisions of Part II of this Act relating to community treatment orders and community patients shall apply; (b) no application shall be made to the appropriate tribunal in respect of a patient under section 66 or 69(1) below; (c) the following powers shall be exercisable only with the consent of the Secretary of State, namely— (i) power to grant leave of absence to the patient under section 17 above; (ii) power to transfer the patient in pursuance of regulations under section 19 above or in pursuance of subsection 3 of that section; and (iii) power to order the discharge of the patient under section 23 above; and if leave of absence is granted under the said section 17 power to recall the patient under that s ection shall vest in the Secretary of State as well as the responsible clinician; and (d) the power of the Secretary of State to recall the patient under the said section 17 and power to take the patient into custody and return him under section 18 above may be exercised at any time; and in relation to any such patient section 40(4) above shall have effect as if it referred to Part II of Schedule 1 to this Act instead of Part I of that Schedule. (4) A hospital order shall not cease to have effect under section 40(5) above if a restriction order in respect of the patient is in force at the material time.

368 Richard Mumford and Rachel Marcus (5) Where a restriction order in respect of a patient ceases to have effect while the relevant hospital order continues in force, the provisions of section 40 above and Part I of Schedule 1 to this Act shall apply to the patient as if he had been admitted to the hospital in pursuance of a hospital order (without a restriction order) made on the date on which the restriction order ceased to have effect. (6) While a person is subject to a restriction order the [responsible clinician] shall at such intervals (not exceeding one year) as the Secretary of State may direct examine and report to the Secretary of State on that person; and every report shall contain such particulars as the Secretary of State may require. … 47. Removal to hospital of persons serving sentences of imprisonment, etc. (1) If in the case of a person serving a sentence of imprisonment the Secretary of State is satisfied, by reports from at least two registered medical practitioners— (a) that the said person is suffering from mental disorder; and (b) that the mental disorder from which that person is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment; and (c) that appropriate medical treatment is available for him; the Secretary of State may, if he is of the opinion having regard to the public interest and all the circumstances that it is expedient so to do, by warrant direct that that person be removed to and detained in such hospital as may be specified in the direction; and a direction under this section shall be known as ‘a transfer direction’. (2) A transfer direction shall cease to have effect at the expiration of the period of 14 days beginning with the date on which it is given unless within that period the person with respect to whom it was given has been received into the hospital specified in the direction. (3) A transfer direction with respect to any person shall have the same effect as a hospital order made in his case. (5) … … 135. Warrant to search for and remove patients … (6) In this section ‘place of safety’ means residential accommodation provided by a local social services authority under Part 1 of the Care Act 2014 or Part III of the National Assistance Act 1948, a hospital as defined by this Act, a police station, an independent hospital or care home for mentally disordered persons or any other suitable place the occupier of which is willing temporarily to receive the patient. 136. Mentally disordered persons found in public places (1) If a constable finds in a place to which the public have access a person who appears to him to be suffering from mental disorder and to be in immediate need of care or control, the constable may, if he thinks it necessary to do so in the interests of that person or for the protection of other persons, remove that person to a place of safety within the meaning of section 135 above. (2) A person removed to a place of safety under this section may be detained there for a period not exceeding 72 hours for the purpose of enabling him to be examined by a registered medical practitioner and to be interviewed by an approved mental health professional and of making any necessary arrangements for his treatment or care.

Inquests Concerning Mental Health and Capacity 369 (3) A constable, an approved mental health professional or a person authorised by either of them for the purposes of this subsection may, before the end of the period of 72 hours mentioned in subsection (2) above, take a person detained in a place of safety under that subsection to one or more other places of safety. (4) A person taken to a place of a safety under subsection (3) above may be detained there for a purpose mentioned in subsection (2) above for a period ending no later than the end of the period of 72 hours mentioned in that subsection.

B. Mental Capacity Act 2005 4A. Restriction on deprivation of liberty This Act does not authorise any person (‘D’) to deprive any other person (‘P’) of his liberty. (2) But that is subject to— (a) the following provisions of this section, and (b) section 4B [deprivation of liberty necessary for life-saving treatment, pending authorisation by the court]. (3) D may deprive P of his liberty if, by doing so, D is giving effect to a relevant decision of the court. (4) A relevant decision of the court is a decision made by an order under section 16(2)(a) in relation to a matter concerning P’s personal welfare. (5) D may deprive P of his liberty if the deprivation is authorised by Schedule A1 (hospital and care home residents: deprivation of liberty). … 16. Powers to make decisions and appoint deputies: general (1) This section applies if a person (‘P’) lacks capacity in relation to a matter or matters concerning— (a) P’s personal welfare, or (b) P’s property and affairs. (2) The court may— (a) by making an order, make the decision or decisions on P’s behalf in relation to the matter or matters, or (b) appoint a person (a ‘deputy’) to make decisions on P’s behalf in relation to the matter or matters. Part 1 Authorisation to deprive residents of liberty etc. Application of Part 1 This Part applies if the following conditions are met. The first condition is that a person (‘P’) is detained in a hospital or care home—for the purpose of being given care or treatment—in circumstances which amount to deprivation of the person’s liberty. The second condition is that a standard or urgent authorisation is in force.

370 Richard Mumford and Rachel Marcus (4) The third condition is that the standard or urgent authorisation relates— (a) to P, and (b) to the hospital or care home in which P is detained. Authorisation to deprive P of liberty 2 The managing authority of the hospital or care home may deprive P of his liberty by detaining him as mentioned in paragraph 1(2).

Part 2 deals with interpretation of terms. Part 3 The qualifying requirements 12 (1) These are the qualifying requirements referred to in this Schedule— (a) (b) (c) (d) (e) (f)

the age requirement; the mental health requirement; the mental capacity requirement; the best interests requirement; the eligibility requirement; the no refusals requirement.

The remainder of Part 3 sets out what is needed for each requirement to be met. Part 4 Standard authorisations Supervisory body to give authorisation 21 Only the supervisory body8 may give a standard authorisation. 22 The supervisory body may not give a standard authorisation unless— (a) the managing authority of the relevant hospital or care home have requested it, or (b) paragraph 71 applies (right of the third party to require consideration of whether authorisation needed).

The remainder of Part 4 deals inter alia with when the duty or power arises to seek authorisation to deprive someone of their liberty and sets out that the request for authorisation must contain the information required by regulations; it also sets out the assessments which the supervisory body must carry out in order to ensure that the relevant person meets all the requirements set out above. Terms of authorisation 51(1) If the supervisory body are required to give a standard authorisation, they must decide the period during which the authorisation is to be in force. (2) That period must not exceed the maximum authorisation period stated in the best interests assessment. 52 A standard authorisation may provide for the authorisation to come into force at a time after it is given. 53(1) A standard authorisation may be given subject to conditions. (2) Before deciding whether to give the authorisation subject to conditions, the supervisory body must have regard to any recommendations in the best interests assessment about such conditions. 8

That is, the local authority.

Inquests Concerning Mental Health and Capacity 371 (3) The managing authority of the relevant hospital or care home must ensure that any conditions are complied with. Part 5 Urgent authorisations Managing authority to give authorisation 74 Only the managing authority of the relevant hospital or care home may give an urgent authorisation. 75 The managing authority may give an urgent authorisation only if they are required to do so by paragraph 76 (as read with paragraph 77). Duty to give authorisation 76(1) The managing authority must give an urgent authorisation in either of the following cases. (2) The first case is where— (a) the managing authority are required to make a request under paragraph 24 or 25 for a standard authorisation, and (b) they believe that the need for the relevant person to be a detained resident is so urgent that it is appropriate for the detention to begin before they make the request. (3) The second case is where— (a) the managing authority have made a request under paragraph 24 or 25 for a standard authorisation, and (b) they believe that the need for the relevant person to be a detained resident is so urgent that it is appropriate for the detention to begin before the request is disposed of. Terms of authorisation 78 (1) If the managing authority decide to give an urgent authorisation, they must decide the period during which the authorisation is to be in force. (2) That period must not exceed 7 days.

C. Guidance Reference Guide to the Mental Health Act 1983, 26 March 2015.9 Code of Practice: Mental Health Act 1983, 26 March 2015.10 Deprivation of Liberty Safeguards: Code of Practice to supplement the Mental Capacity Act 2005 Code of Practice, 26 August 2008.11 Chief Coroner Guidance No 16, ‘Deprivation of Liberty Safeguards (DoLS)’, 5 December 2014.12

9 www.gov.uk/government/publications/reference-guide-to-the-mental-health-act-1983.

10 www.gov.uk/government/publications/code-of-practice-mental-health-act-1983.

11 www.webarchive.nationalarchives.gov.uk/20130107105354/http://www.dh.gov.uk/prod_consum_dh/ groups/dh_digitalassets/@dh/@en/documents/digitalasset/dh_087309.pdf. 12 www.judiciary.gov.uk/publications/guidance-no-16-deprivation-of-liberty-safeguards-dols/.

372 Richard Mumford and Rachel Marcus

III. Cases One of the questions which will frequently arise in the mental health context is whether, in order to discharge the state’s procedural obligations under Article 2 of the European Convention on Human Rights (ECHR), a Middleton type inquest (ie one in which the question of ‘how’ the deceased came by his death is interpreted as meaning not simply ‘by what means’ but ‘by what means and in what circumstances’) is required. That may turn on whether arguably there has been a breach of the state’s ‘substantive obligation’ not intentionally to take life or (as is more usually argued in this context) to take reasonable preventative measures to protect an individual whose life is at risk; in such circumstances the ‘adjectival procedural obligation’ to investigate deaths will be engaged.13 The key case law on this subject is set out at Chapter 7 concerning Article 2 generally. For present purposes, we identify below passages from the case law which elucidate the state’s obligations towards individuals with mental health concerns and hence provide the circumstances in which a Middleton-type inquest may be triggered.

A. General or Systemic Duty Under Article 2 to Provide Reasonable Facilities, Staffing and Systems for the Protection of Life (i) Savage v South Essex Partnership NHS Foundation Trust (MIND and Others Intervening) [2008] UKHL 74, [2009] 1 AC 681, [2008] Inquest LR 126 Keywords: Article 2, mental health, human rights The facts of this case are set out in Chapter 7. The House of Lords held that the trust was under a duty to comply with the general and operational duties under Article 2. The trust was consequently required not only to ensure that general measures were implemented to protect patients but also to ensure appropriate safeguards were in place to protect detained psychiatric patients at a real and immediate risk of suicide. In considering the substance of the duty imposed by Article 2 in respect of detained persons generally and detained patients specifically, Lord Rodger stated as follows: The duty to protect the lives of patients suffering from mental illness 46. The fact that patients are suffering from mental illness is also relevant to the authorities’ obligations under article 2 … …

13 See R (Amin) v Secretary of State for the Home Department [2002] EWCA Civ 390, [2003] QB 581, para 1. See also generally the judgment of Hickinbottom J in R (AP & MP) v HM Coroner for the County of Worcestershire [2011] EWHC 1453 (Admin) which analyses the application of the substantive obligation in relation to the actions of the police and local authority leading up to the violent death of a young man who suffered from Asperger’s syndrome; concluding there was no arguable breach of the substantive duty, the judge held that procedural obligation was not engaged—had it been, it would have been satisfied by the existing investigations (including the trial of the deceased’s killer) and did not require the resumption of the inquest.

Inquests Concerning Mental Health and Capacity 373 48. Accordingly, if it turned out that the hospital authorities had not had in place appropriate systems, say, for preventing patients, who were known to be suffering from mental illness, from committing suicide, not only would the authorities be potentially liable under domestic law for any resulting suicide, but they would also have violated one of their positive obligations under article 2 to protect their patients’ lives. The duty to protect detained patients’ lives 49. The fact that Mrs Savage was not only a patient, but a detained patient, is also relevant to the authorities’ obligations under article 2. Any auction in the comparative vulnerability of prisoners, voluntary patients, and detained patients would be as unedifying as it is unnecessary. Plainly, patients, who have been detained because their health or safety demands that they should receive treatment in the hospital, are vulnerable. They are vulnerable not only by reason of their illness which may affect their ability to look after themselves, but also because they are under the control of the hospital authorities. Like anyone else in detention, they are vulnerable to exploitation, abuse, bullying and all the other potential dangers of a closed institution. Mutatis mutandis, the principles in the case law which the European court has developed for prisoners and administrative detainees must apply to patients who are detained. As explained in Herczegfalvy v Austria (1992) 15 EHRR 437, 484, para 82: ‘The court considers that the position of inferiority and powerlessness which is typical of patients confined in psychiatric hospitals calls for increased vigilance in reviewing whether the Convention has been complied with.’ The hospital authorities are accordingly responsible for the health and well being of their detained patients. Their obligations under article 2 include an obligation to protect those patients from selfharm and suicide. Indeed, as explained at para 28 above, the very fact that patients are detained carries with it a risk of suicide against which the hospital authorities must take general precautions: Tanribilir v Turkey given 16 November 2000, para 74, and Akdogdu v Turkey given 18 October 2005, para 47. 50. I am accordingly satisfied that, as a public authority, the trust was under a general obligation, by virtue of article 2, to take precautions to prevent suicides among detained patients in Runwell Hospital. So the trust had, for example, to employ competent staff and take steps to see that they were properly trained to high professional standards. The hospital’s systems of work—and, doubtless, also its plant and equipment—had to take account of the risk that detained patients might try to commit suicide. When deciding on the most appropriate treatment and therapeutic environment for detained patients, medical staff would have to take proper account of the risk of suicide. But the risk would not be the same for all patients. Those who presented a comparatively low risk could be treated in a more open environment, without the need for a high degree of supervision. Those who presented a greater risk would need to be supervised to an appropriate extent, while those presenting the highest risk would have to be supervised in a locked ward. The level of risk for any particular patient could be expected to vary with fluctuations in his or her medical condition. In deciding what precautions were appropriate for any given patient at any given moment, the doctors would take account of both the potentially adverse effect of too much supervision on the patient’s condition and the possible positive benefits to be expected from a more open environment. Such decisions involve clinical judgment. Different doctors may have different views. … Summary 67. It may be useful to summarise the relevant obligations of health authorities like the trust and to note the way they relate to one another.

374 Richard Mumford and Rachel Marcus 68. In terms of article 2, health authorities are under an over-arching obligation to protect the lives of patients in their hospitals. In order to fulfil that obligation, and depending on the circumstances, they may require to fulfil a number of complementary obligations. 69. In the first place, the duty to protect the lives of patients requires health authorities to ensure that the hospitals for which they are responsible employ competent staff and that they are trained to a high professional standard. In addition, the authorities must ensure that the hospitals adopt systems of work which will protect the lives of patients. Failure to perform these general obligations may result in a violation of article 2. If, for example, a health authority fails to ensure that a hospital puts in place a proper system for supervising mentally ill patients and, as a result, a patient is able to commit suicide, the health authority will have violated the patient’s right to life under article 2. 70. Even though a health authority employed competent staff and ensured that they were trained to a high professional standard, a doctor, for example, might still treat a patient negligently and the patient might die as a result. In that situation, there would be no violation of article 2 since the health authority would have done all that the article required of it to protect the patient’s life. Nevertheless, the doctor would be personally liable in damages for the death and the health authority would be vicariously liable for her negligence. This is the situation envisaged by Powell’s case 30 EHRR CD 362. 71. The same approach would apply if a mental hospital had established an appropriate system for supervising patients and all that happened was that, on a particular occasion, a nurse negligently left his post and a patient took the opportunity to commit suicide. There would be no violation of any obligation under article 2, since the health authority would have done all that the Article required of it. But, again, the nurse would be personally liable in damages for the death and the health authority would be vicariously liable too. Again, this is just an application of Powell’s case. 72. Finally, article 2 imposes a further ‘operational’ obligation on health authorities and their hospital staff. This obligation is distinct from, and additional to, the authorities’ more general obligations. The operational obligation arises only if members of staff know or ought to know that a particular patient presents a ‘real and immediate’ risk of suicide. In these circumstances article 2 requires them to do all that can reasonably be expected to prevent the patient from committing suicide. If they fail to do this, not only will they and the health authorities be liable in negligence, but there will also be a violation of the operational obligation under article 2 to protect the patient’s life. This is comparable to the position in Osman’s case 29 EHRR 245 and Keenan’s case 33 EHRR 913. As the present case shows, if no other remedy is available, proceedings for an alleged breach of the obligation can be taken under the Human Rights Act 1998.

B. Operational Duty Under Article 2 to Protect Informal Psychiatric Patients from a Real and Immediate Risk of Suicide (i) Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2, [2012] 2 AC 72, [2012] Inquest LR 1 Keywords: Article 2, mental health, human rights Melanie Rabone suffered from severe depression. She agreed to an informal admission to the trust’s hospital after an episode of self-harm. She was assessed by a doctor as

Inquests Concerning Mental Health and Capacity 375

being at a high risk of self-harm and suicide, and he instructed that if she sought to leave hospital then she should be assessed under the MHA 1983. Melanie requested home leave but her parents expressed their serious concerns that she should not be discharged until she improved. However, a different doctor, who was not familiar with her recent history, granted her two days’ leave. Melanie returned home, but the following day she hanged herself. Her parents brought a claim against the trust, claiming that (amongst other allegations) the trust had breached their Article 2 rights. The trust denied the allegations. The High Court and Court of Appeal dismissed the claim: Article 2 did not impose an operational duty on the hospital as Melanie was not detained under the MHA 1983 and therefore not in state control. The parents appealed to the Supreme Court. The Supreme Court allowed the appeal. The trust ‘owed the operational duty to [Melanie] to take reasonable steps to protect her from the real and immediate risk of suicide’.14 She was under the trust’s control and consequently the trust were responsible for her wellbeing. Her situation as an informal patient was closer to that of a formal (detained) psychiatric patient than to a patient who was receiving treatment in hospital for a physical illness.15 In considering the threshold test of ‘real and immediate’ risk, Lord Dyson stated: 38. It seems to me that the courts below were clearly right to say that the risk of Melanie’s suicide was ‘real’ in this case. On the evidence of Dr Caplan, [the trust’s expert psychiatrist] it was a substantial or significant risk and not a remote or fanciful one … 39. … In In re Officer L [2007] 1 WLR 2135, para 20, Lord Carswell stated that an apt summary of the meaning of an ‘immediate’ risk is one that is ‘present and continuing’. In my view, one must guard against the dangers of using other words to explain the meaning of an ordinary word like ‘immediate’. But I think that the phrase ‘present and continuing’ captures the essence of its meaning. The idea is to focus on a risk which is present at the time of the alleged breach of duty and not a risk that will arise at some time in the future.

C. Article 2 Procedural Obligation (i) R (Antoniou) v Central and North West London NHS Foundation Trust [2013] EWHC 3055 (Admin), [2013] Inquest LR 224 Keywords: Article 2, mental health This case considered whether a state’s Article 2 procedural obligations required an immediate, effective and independent investigation in addition to the inquest into the death of a detained patient. In October 2010 Jane Antoniou killed herself in the mental health unit where she was a detained patient under the MHA 1983. She had a long history of mental illness and numerous admissions to mental health units, voluntarily and compulsorily under

14 15

Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2, [2012] 2 AC 72, [2012] Inquest LR 1, para 34. ibid para 34.

376 Richard Mumford and Rachel Marcus

s ection 3 of the MHA 1983. The day before she died she was told that her husband, from whom she was separated, was not intending to return to live with her. That night she expressed suicidal ideation and was placed on hourly observations. She was found hanging the next morning. The hospital undertook a serious untoward incident (SUI) investigation and concluded that there had been no liability on behalf of the staff. An inquest was held with a jury. The jury returned a narrative verdict, in which they concluded that she did not commit suicide but inadvertently died following self-harm using a ligature. Her husband brought judicial review proceedings. He argued that the state was obliged to hold an independent investigation into all MHA deaths, which were similar to death in custody cases, which was separate from the inquest. The SUI investigation had not been independent and was fatally flawed, such that the Article 2 procedural breaches could not be ‘cured’ by other investigations such as an inquest. The Court rejected this argument. The procedural obligation was generally filled by holding a Middleton inquest. There was no requirement in either domestic or European law to hold an independent investigation into death of person detained under the MHA 1983. While independent investigations had been established in cases where there has been a death in custody or detention, investigations with regards to detained patients were not required by law. 76. … Our first conclusion is that no domestic authority requires that, in order to fulfil the State’s Article 2 procedural requirements, there must be an independent investigation from the outset into the death of a patient who has been detained under the MHA and who dies whilst in the hospital’s care. L is Mr Bowen’s highpoint, but that was a near suicide case and so there could be no inquest of any type. If the law were that an independent investigation was required from the outset when the State’s Article 2 procedural obligations are triggered ‘automatically’, then the Supreme Court would have said so in Smith but it did not. Moreover, none of the ECtHR decisions indicates that this is required when a member State has a procedural system for investigating deaths which includes an inquest. 77. Therefore Mr Bowen has to argue for an extension of the existing law. As already noted, he deployed much the same arguments as Lord Phillips raised in L for reaching his conclusion in that case that an independent investigation was needed from the outset in the case of a suicide attempt. We accept that those detained in mental hospitals under the MHA pose a high suicide risk and we accept that, in those circumstances, the hospital authorities (to be regarded for these purposes as agents of the State) will be bound by the Article 2 substantive obligations to take reasonable care to ensure that such patients do not commit suicide, by putting in place systematic precautions against it. We also accept (as we must given Lord Hope’s remark in Smith at [98] and Lord Mance’s similar statement at [210]) that if those precautions fail then the State’s Article 2 procedural obligations will be triggered. But the investigation into the circumstances of the death will be opened to public scrutiny by a Middleton inquest and that will, in our view, generally fulfil the State’s Article 2 procedural obligations. Such an inquest meets the minimum standards identified by Lord Phillips in L at [35] and reiterated by him in Smith at [64]. We are not persuaded that there are any particular characteristics of the present case that mean that a Middleton inquest would be an inappropriate means to discharge the State’s Article 2 procedural obligations, as Lord Phillips envisaged might be the case in certain circumstances. 78. Mr Bowen emphasised the lack of independence of the prior, SUI, investigation. We accept that it was an internal investigation that was not hierarchically or practically independent of the NHS Trust ‘implicated’ in the circumstances of JA’s suicide. But, as Lord Phillips emphasised in

Inquests Concerning Mental Health and Capacity 377 Smith, that is only a part of the ‘staged investigation’ that constitutes the framework in England and Wales for investigating deaths. The Inquest was opened in the normal way. The coroner and his officer have extensive powers and the coroner is an independent judicial officer. The investigations in an inquest are not limited to the fruits of any prior internal investigation. 79. Mr Bowen also emphasised the fact that in the cases of deaths in custody and detention, the UK has instituted independent investigation systems under the PPO and IPCC. That is true, but it does not follow, in our view, that the State must, as a matter of law, institute the same system to investigate suicides of detained MHA patients. We have concluded that it does not have to do so as a matter of the existing law. Whether the UK wishes to create such a system on grounds of public policy is a different point. It is not bound to do so as a matter of either domestic or ECHR law as it stands.

Although recognising that there had been some flaws in the investigation, none of them had been fundamental. Taken as a whole, the investigation process had been ‘independent, effective and prompt’.16 The claimant applied for permission to appeal, which was granted at an oral hearing before Arden and Briggs LJs in June 2014. The substantive hearing had not yet taken place as of the time of writing.

D. Ordinary Negligence will not Engage Article 2 This has been the established case law for some time: see the case of Savage excerpted below. However, a recent decision by the chamber of the European Court of Human Rights, a summary of which follows, appears to go against that time of authority; whilst not a mental health case, it will be relevant to many inquests in this domain.

(i) Savage v South Essex Partnership NHS Foundation Trust (MIND and Others Intervening) [2008] UKHL 74, [2009] AC 681, [2008] Inquest LR 126 Keywords: Article 2, mental health, human rights See above for a summary of the background to this case. Lord Scott said: 8. The other line of Strasbourg authority stems, particularly, from Powell v United Kingdom (2000) 30 EHRR CD 362, dealt with by my noble and learned friend in paras 89 and 90 of her opinion. Powell’s case was a case of alleged medical negligence in which a young boy had died in an NHS hospital. His parents said that his death had been caused by the negligence of the hospital and that therefore it ‘must be concluded that there was a breach of the state’s obligation to protect life’. The Strasbourg court rejected that conclusion, at p 364: ‘it cannot accept that matters such as error of judgment on the part of a health professional or negligent co-ordination among health professionals in the treatment of a particular patient are sufficient of themselves to call a contracting state to account from the standpoint of its positive obligations under Article 2 of the Convention to protect life.’ 16 R (Antoniou) v Central and North West London NHS Foundation Trust [2013] EWHC 3055 (Admin), [2013] Inquest LR 224, para 113.

378 Richard Mumford and Rachel Marcus 9. Powell’s case, therefore, is authority for the proposition that, in the context of care of patients in hospitals, something more will be required to establish a breach of the article 2(1) positive obligation to protect life than, simply, a failure on the part of the hospital to meet the standard of care of the patient required by the common law duty of care. Keenan’s case 33 EHRR 913, on the other hand, and the other ‘custody’ cases referred to by my noble and learned friend, show that where individuals are in custody and are, or ought to be, known to pose a ‘real and immediate’ suicide risk, the article 2(1) positive obligation requires the authorities to take ‘reasonable steps’ to avert that risk. My Lords, I do not accept the starkness of the contrast between these two lines of authority on which the submissions that have been presented to your Lordships appear to be based. The standard of care required by our domestic law to be shown in order to discharge the common law duty of care is a flexible one dependent upon the circumstances of each individual case. The same must be true of the standard of protection required by article 2(1) to be extended by the state and state agents to individuals within the state’s jurisdiction whose lives are in danger. That circumstances alter cases is as true, in my opinion, of the state’s article 2(1) positive obligation as it is of the standard of care required by the common law duty. 10. Every patient who enters hospital knows that he or she may be at risk of medical error. We know that these things happen. Sometimes the error constitutes medical negligence, sometimes it does not. Powell’s case 30 EHRR CD 362 shows that provided that there is no serious systemic fault and provided, in the event of death, that there is a proper investigation of the causes, a negligent medical error will not necessarily be enough to constitute a breach of the article 2(1) positive obligation. The case would, in my opinion, be no different if the patient who had died were an inmate in a prison hospital or a mentally ill patient who had been sectioned under section 3 and transferred to the hospital wing of the mental hospital on account of some medical condition. If, however, the conditions in the prison hospital or the hospital wing had been markedly inferior to those in an ordinary hospital and had contributed to the patient’s death, the article 2(1) positive obligation might well be engaged. 11. As to persons known to be a suicide risk, the state has no general obligation, in my opinion, either at common law or under article 2(1), to place obstacles in the way of persons desirous of taking their own life. The positive obligation under article 2(1) to protect life could not, for example, justify the removal of passport facilities from persons proposing to travel to Switzerland with suicidal intent. Children may need to be protected from themselves, so, too, may mentally ill persons but adults in general do not. Their personal autonomy is entitled to respect subject only to whatever proportionate limitations may be placed by the law on that autonomy in the public interest. The prevention of suicide, no longer a criminal act, is not among those limitations.

Having considered the Strasbourg case law, Lord Rodger held: 45. These passages show that a state is under an obligation to adopt appropriate (general) measures for protecting the lives of patients in hospitals. This will involve, for example, ensuring that competent staff are recruited, that high professional standards are maintained and that suitable systems of working are put in place. If the hospital authorities have performed these obligations, casual acts of negligence by members of staff will not give rise to a breach of article 2. The European court put the point quite shortly in Powell v United Kingdom 30 EHRR CD 362, 364: ‘The court accepts that it cannot be excluded that the acts and omissions of the authorities in the field of health care policy may in certain circumstances engage [the state’s] responsibility under the positive limb of article 2. However, where a contracting state has made adequate provision for securing high professional standards among health professionals and the protection of the lives of patients, it cannot accept that matters such as error of judgment on the part of a health professional or negligent co-ordination among health professionals in the treatment of a particular patient are sufficient of themselves to call a contracting state to account from the standpoint of its positive obligations under article 2 of the Convention to protect life.’

Inquests Concerning Mental Health and Capacity 379 See also Dodov v Bulgaria 47 EHRR 932, para 82.

See also paragraph 70, cited above.

(ii) Lopes de Sousa Fernandes v Portugal (App No 56080/13) Keywords: Article 2, medical treatment At the time of going to press, this judgment was only available in French. The Applicant alleged a violation of Article 2 with respect to her late husband’s right to life, in particular that he had lost his life due to a hospital acquired infection (the meningitis) and repeated acts of negligence by the treating hospital staff. In particular she criticised inadequate medication at an early stage of his admission which meant that he required larger doses of drugs than would otherwise have been necessary and that there was a delay in identifying and treating the perforation of his duodenal ulcer. In the light of the medical evidence, and without wishing to speculate on the chances of survival of the deceased, the Chamber took the view that the meningitis could have been diagnosed earlier and that the lack of co-ordination of the ENT department and the Emergency department revealed a deficiency (dysfunction) in the public hospital service. In the Court’s view this amounted to the d eprivation of appropriate emergency care and a violation of the right to life under the substantive limb of Article 2—see §114. There was a sharp dissent from two judges on the basis that this was seen as a ‘radical’ departure from the established case-law. On the basis of the decision of the majority of the court, ‘mere’ negligence may in certain circumstances (and here the relevant circumstance was simply negligent coordination of information between units of the same hospital) be sufficient to establish a violation.

E. The Test of Deprivation of Liberty (i) P v Cheshire West and Cheshire Council; P and Q v Surrey County Council [2014] UKSC 19 Keywords: Local authorities, human rights In this case, the Supreme Court clarified the criteria for judging whether the living arrangements made for a mentally incapacitated person amount to a deprivation of liberty. The significant consequence of a finding of deprivation of liberty (or DoL) is that the deprivation has to be authorised, either by a court or by the procedures known as the deprivation of liberty safeguards, set out in the Mental Capacity Act 2005. The Supreme Court decided (by a majority), citing HL v UK (2004) 40 EHRR 761, that deprivation of liberty arose when the person concerned ‘was under continuous supervision and control and was not free to leave’: see paragraphs 49, 63 and 87. This should be determined ‘primarily on an objective basis’.17 It did not matter that the patient in hospital or the resident of a care home was content or compliant or voiced no objection. As Lady Hale said at paragraph 46, ‘A gilded cage is still a cage’.

17

P v Cheshire West and Cheshire Council; P and Q v Surrey County Council [2014] UKSC 19, paras 76–87.

380 Richard Mumford and Rachel Marcus

It is relevant to observe that the wide test of DoL established by the Supreme Court in Cheshire West has proved both difficult in its application to the multiplicity of factual scenarios before the courts (see, eg, the judgment of Mostyn J in Bournemouth Borough Council v PS & DS [2015] EWCOP 39 as illustrative of such difficulties) but also far-reaching in its resource implications given that its logical consequence is to require applications for approval of DoL in many more situations than was formerly thought to be the case. Each of those challenges is currently occupying the courts and practitioners in this field.

(ii) R (LF) v HM Senior Coroner for Inner South London & Anor [2015] EWHC 2990 (Admin) Keywords: Human rights, Article 2, mental health The deceased, Maria, had Down’s syndrome and severe learning and physical disabilities.18 She was admitted to hospital with suspected pericarditis, pneumonia and pulmonary oedema.19 She died whilst in intensive care when she dislodged her endotracheal tube. It appeared that one of the mittens designed to prevent patients from grabbing the tube was missing as there was a shortage on the ward.20 The Coroner declined to empanel a jury for the inquest on the basis that he did not have reason to suspect that the deceased had died an unnatural death whilst in ‘state detention’.21 The Claimant applied for judicial review of that decision. Gross LJ and Charles J adopted very different reasoning in coming to the same conclusion that the Coroner was correct that there had been no state detention. Gross LJ: taking into account that the phrase ‘state detention’ is defined for the purposes of the CJA as being where one is ‘compulsorily detained’, held that the former phrase bears an essentially similar if not identical meaning to the term ‘deprivation of liberty’ under Article 5 ECHR. However, the ‘acid test’ in Cheshire West did not apply to patients in ICU. On the facts, the Deceased had not been deprived of her liberty contrary to Article 5.

Charles J, on the other hand, found that there was a difference between ‘deprivation of liberty’ and the phrasing ‘compulsorily detained’ in the CJA 2009. Gross LJ: 14. Art. 5 [of the European Convention on Human Rights] and Cheshire West are directed to the assessment of a situation and the necessary process of law and safeguards relating to it whilst the relevant person is alive. By contrast, the CJA 2009 is directed to the necessary process of law and safeguards after death. … I remind myself as to the nature of our task. It is not to attempt exhaustive guidance as to the circumstances in which Cheshire West is applicable. It is instead to decide, on the facts of this case, whether the Claimant can make good her complaint that the Coroner’s Decision was Wednesbury unreasonable and/or entailed a misdirection in law in concluding that he was not bound to empanel

18

Para 1 para 17–18 20 paras 22–23 21 para 2 19

Inquests Concerning Mental Health and Capacity 381 a jury for the inquest. Put another way, must the Coroner have had reason to suspect that Maria died ‘in state detention’, thus while ‘compulsorily detained’ by the hospital. I take as my starting point the wording of the statute. As it seems to me and unless driven to take a different approach, the language of the CJA 2009, ‘in state detention’ and ‘compulsorily detained’, should be given a readily understood, natural and ordinary meaning. So far as dictionaries assist, the connotation is supplied by the OED’s first definitions of ‘detention’, namely, ‘Keeping in custody or confinement; arrest….’ and of ‘compulsorily’, namely, ‘Produced by or acting under compulsion…’. For completeness, ‘compel’ is defined as ‘To urge irresistibly, to constrain, oblige, force…’. All this suggests the need for an act or decision by a third party, overriding the freedom of choice of the individual thus detained. Turning to the legislative purpose of the CJA 2009, I agree with [counsel for the Coroner]’s submission: the CJA 2009 was aimed at breaking down artificial distinctions between different forms of state custody. While in no way determinative, this conclusion is reinforced by the wording of the Explanatory Notes to the Bill (referred to above), viz.,‘….such as while the deceased was detained in prison, in police custody or in an immigration detention centre, or held under mental health legislation, irrespective of whether the detention was lawful or unlawful’. 66. Accordingly, as a matter of language and context but without reference to the jurisprudence relating to Art. 5 ECHR, I would construe the wording ‘in state detention’ and ‘compulsorily detained’ as meaning a confinement imposed by a public authority, overriding the relevant person’s freedom of choice; in short, detention properly so called, by the state, in whatever form. 67. The context of and the issues involved in the relevant Art. 5 Strasbourg jurisprudence and Cheshire West have already been explored. The mischief addressed by these decisions is plain: it is the concern as to the arrangements made, sometimes for years on end, for those suffering from mental incapacity. Taking Cheshire West as an example, the issue went to the need for periodic independent scrutiny of the living arrangements made for those with such mental incapacity. It is that need which warrants invoking the routes provided by the MCA 2005 pursuant to which persons lacking capacity to make the relevant decisions themselves may be lawfully deprived of their liberty for treatment and care. The justification in such cases for the cost and bureaucracy inevitably involved in the various applications, authorisations or administrative decisions, is, as explained in Cheshire West (at [1]), ‘…a recognition that human rights are for everyone, including the most disabled members of our community…’. … 72. There are … considerable difficulties with the argument that significance is to be attached to the difference in wording between the CJA 2009 and Art. 5. First, in the present context, there are powerful arguments for treating ‘in state detention’ and ‘compulsorily detained’ under the former as having an essentially similar meaning to ‘lawful detention’ and ‘deprived of … liberty’ under the latter. As a matter of common sense, those deprived of their liberty by the state have been detained or compulsorily detained by the state. The single word ‘compulsorily’ will not bear too much weight. Secondly, the development of diverging lines of authority based on the absence of the word ‘compulsorily’ in Art. 5, cannot be a welcome prospect. Thirdly, examples do not readily spring to mind of deprivation of liberty by the state under Art.5 which would not constitute ‘state detention’ as defined in the CJA 2009. 73. Weighing these arguments, I have come to the view that ‘state detention’ as defined in the CJA 2009 and deprivation of liberty under Art. 5 have essentially similar, if not necessarily identical, meanings. That conclusion does not preclude the possibility that there may be some situations constituting deprivation of liberty, as interpreted by Cheshire West, which do not necessarily amount to

382 Richard Mumford and Rachel Marcus ‘state detention’ under the CJA 2009. However, that is not this case and, in the present context, I am unable to accept that the answer is to be found by distinguishing ‘state detention’ as defined in the CJA 2009 from deprivation of liberty under Art. 5. 74. Instead, in my view, the key to the proper scope of ss. 7(2)(a) and 48(2) of the CJA 2009 and to ensuring coherence with the Art. 5 jurisdiction lies in an intense focus on context and on the ‘concrete situation’ (HL v United Kingdom, supra) before the court. 75. As already foreshadowed, the ‘acid test’ suggests that the principle of Cheshire West is capable of application or extension to patients in some hospital or ICU settings. But, in my respectful view, the notion that Cheshire West requires treating all patients in an ICU (and other hospital settings) for more than a very brief period as subject to a deprivation of liberty provided only that they lacked capacity to consent to the particular stage of treatment, would involve a wholesale extension rather than an application of that authority. Again with respect, any such extension would be mechanistic, unwarranted and divorced from the mischief Cheshire West was seeking to address. 76. First, it would not draw any distinction between patients with and those without any previous mental incapacity. On this footing, prior mental incapacity has no impact on the creation or continuation of the concrete situation—so rendering a comparison between those with and without such capacity irrelevant and unnecessary. This itself furnishes a stark contrast between the generality of such cases and the issue addressed in Cheshire West. 77. Secondly, it would break still further new ground. As already noted, the cases in the Strasbourg Court have not addressed treatment for physical disorders, unconnected to the patient’s mental disorder. In this regard it is perhaps not without significance that one of the reasons for the Strasbourg Court’s decision in Nielsen v Denmark (supra) was that the conditions pertaining to the applicant there did not in principle differ from those applying to children with physical disorders in an ‘ordinary’ hospital. For this purpose it is neither here nor there that considerable controversy attaches to Nielsen v Denmark. 78. Thirdly, and as earlier underlined, the practical consequences would be significant. So far as concerned Coroners, as [counsel for the Coroner] submitted, they would come under a duty to hold unnecessary inquests and the number of inquests requiring a jury would itself increase substantially. As to hospitals, every ICU would need to spend time and money on establishing a system for invoking one or other of the routes provided by the MCA 2005 (or the court’s inherent jurisdiction) for lawfully depriving patients of their liberty for treatment and care. While the time and cost of any individual application or authorisation may well be trivial, the costs to the system would not be, in terms of the diversion of treating teams from their treatment of patients, administrative time and money—all the more so because hospitals would be bound to err on the side of caution. None of this additional burden would be justified by the policy considerations underpinning the majority decision in Cheshire West, arising from its context and the issue with which it was concerned. 79. Fourthly, any such wholesale extension would also seem to overlook that a person who lacks capacity to consent to a particular treatment can be treated on a best interests basis (s.5 of the MCA 2005) without, ipso facto, being deprived of his liberty or compulsorily detained. Plainly, a fact sensitive inquiry is required. 80. Thus, by contrast to the ‘ordinary’ case of a patient with or without prior mental incapacity in an ICU, there are, no doubt, other situations where the principle of Cheshire West may well be applicable (always depending on the ‘concrete situation’). Examples which come to mind include instances where there is a serious debate as to the proper treatment (cf. NHS Trust I v G, supra) or active resistance from family members to a particular course of treatment. No doubt there are

Inquests Concerning Mental Health and Capacity 383 others but it is unnecessary to explore them further here, save to underline that difficult factual questions may arise as to whether individual cases fall on one or the other side of the relevant line. 81. I return to the facts of the present case, which, though crucial, can be addressed relatively briefly. I state my conclusion at once: I am unable to accept that the Coroner’s Decision was either Wednesbury unreasonable or that he misdirected himself in law. For that matter, though it is unnecessary to go so far, I agree with the Decision. My reasons follow. 82. First, it is right to repeat the test. The Coroner’s Decision was that he did not find reason to suspect that Maria was ‘in state detention’ (i.e., ‘compulsorily detained’) when she died. For the Claimant to succeed she must make good not simply that another coroner could properly have reached a different conclusion but that the Coroner’s Decision was Wednesbury unreasonable and/or disclosed a misdirection of law. Nothing less will do. 83. Secondly, I am not persuaded that the language of the Decision discloses an error of law on the part of the Coroner in supposing that there could not be detention or a deprivation of liberty without a formal order or authorisation—a conclusion which would run counter to his observation, in terms, that, in principle, a patient or care home resident could in practice be detained without proper authorisation. While, with respect, the matter could certainly have been expressed differently, I am satisfied that the Coroner was doing no more than point to the absence of a formal order or authorisation as supporting, evidentially, his view that Maria had not been in state detention or compulsorily detained at the time of her death. Understood in this way, there is no error of law—whatever the weight to be attached to the absence of a formal order or authorisation, in any event, a matter for the Coroner. 84. Thirdly, with regard to the period prior to the night of 2nd/3rd December, the totality of the materials available do not require a conclusion that the hospital staff refused to allow Maria to leave or would have done so had the Claimant pressed the issue. I have not overlooked the Claimant’s evidence as to her understanding that had she attempted to remove Maria she would have been stopped. To my mind that, purely subjective, understanding is outweighed by the consistent evidence from the medical staff as to continuing consideration of Maria’s discharge and the intention to discharge her ‘once safe to do so’. The reality was that the Claimant was well aware of this and for sound, caring and compelling reasons based on her assessment of the medical advice and Maria’s best interests accepted that she should remain in hospital. On any view, the Coroner was entitled to conclude that there had been no refusal at this time to discharge Maria. Further still, whatever view was taken of the situation prevailing prior to the night of 2nd/3rd December it would, in my judgment, have become academic after the events of that night and Maria’s admission into the ICU. 85. Fourthly and in my judgment, the Coroner was entitled to conclude that Maria had not been ‘detained’ or ‘compulsorily detained’ subsequent to the night of 2nd/3rd December. As a matter of ordinary language, it would be wholly artificial to say that thereafter Maria had been kept in custody or confined by the state. It would neither accord with the facts of the case nor the common sense approach adopted by Taylor LJ in Linnane (supra). As [counsel for the Coroner] submitted, the reality was that Maria remained in the ICU, not because she had been detained or deprived of her liberty but because for pressing medical reasons and treatment she was unable to be elsewhere. There is no evidence whatever of a decision by the hospital other than to admit Maria to the ICU and to attempt life-saving treatment. 86. As it seems to me, it is fanciful in this case to suppose that the Claimant would have sought to remove Maria from the hospital while she was undergoing treatment in the ICU and therefore idle to consider what the hospital’s response would have been. I cannot accept that, as submitted by [counsel for the Claimant] and suggested by the Law Society Practical Guide, the hospital’s potential response to an unasked question—and one which could not sensibly have been asked—by itself

384 Richard Mumford and Rachel Marcus constitutes or evidences a deprivation of liberty. In passing, the imposition of a requirement for court proceedings or a DOLS process in such a situation—the more especially where a devoted family member is already actively involved—would be both unnecessary and potentially very damaging to the therapeutic relationships involved. 87. Fifthly, the facts of this case do not disclose any deprivation of Maria’s liberty, whether before or after the night of the 2nd/3rd December. Nor did the facts begin to amount to detention or compulsory detention of Maria by the hospital. 88. Accordingly, I would dismiss the Claimant’s claim for judicial review of the Coroner’s Decision.

Charles J: 2. Unlike Gross LJ, I have concluded that this application can be dismissed on reasoning based on the application of the CJA 2009. After some introduction under headings used by Gross LJ, I will address the meaning and application of the CJA 2009 before turning to the direct application of Article 5. 3. If my conclusion on the CJA 2009 is wrong, my reasoning on the application of Article 5 and so Cheshire West differs from that of Gross LJ but I do not think that the differences give rise to a conflict. Certainly they lead to the same result. … 127. … in my view, the use by Parliament of the word ‘compulsorily’ in the definition of state detention in the CJA 2009 is not redundant or merely reflective of an objectively assessed Article 5 detention in which a consent given by or on behalf of the relevant person is irrelevant This is because the use of that word recognises and reflects the points that: (i) the subjective element is relevant to the question whether the State’s obligation under Article 5.1 arises and so to the determination of whether a person is deprived of his liberty within the meaning of Article 5.1, (ii) on an objective assessment: a) some detentions within Article 5 (and more generally) are ‘compulsory’ in its primary sense that they are imposed in a way that overrides the relevant person’s informed freedom of choice, and b) some detentions are not because they are based on a consent or substituted consent of the relevant person (and so decisions made by or on behalf of, or to promote the interests of, that person), and (iii) when the subjective element is taken into account some of the objective non-compulsory detentions referred to in sub-paragraph (ii)(b) will give rise to an Article 5 detention and others will not. 128. As a matter of the ordinary use of language on the assumption that all of the following are on the correct application of Cheshire West objective detentions within Article 5 none of them fit with the primary meaning of the words ‘compulsory Article 5 detention’: (i) a deprivation of liberty (detention) that is founded on a need for physical treatment that the patient cannot give consent to, because it is based on the perceived need for the concrete situation on the ground rather than its imposition by another (ii) a lawful deprivation of liberty (detention) that is founded on a substituted decision made on behalf of and in the best interests of a person who lacks capacity because it has a consensual rather than an imposed base, even if there is no real choice after the possible choices have been properly considered and decisions have been made on their availability, and (iii) a consent to the least restrictive available option and the deprivation of liberty it causes by a person with capacity in his own best interests, because he has consented to the objectively assessed deprivation of liberty.

Inquests Concerning Mental Health and Capacity 385 129. Further, in my view, those examples indicate that giving effect to the word ‘compulsorily’ in the statutory definition in the sense that it limits detentions to those that are imposed in a way that overrides the relevant person’s informed freedom of choice would: (i) promote the underlying intention and purposes of the CJA 2009 which is directed to safeguards after death, and ii) avoid the consequences referred to in [96] above. (ii) As I explain later, in my view it would be wholly artificial to say that at the time of her death Maria was compulsorily detained. Her freedom of choice had not been overridden in any sense and nothing had been unilaterally imposed on her, rather: (iii) there was no dispute about her need for treatment for her physical disorders, ii) the decisions about it were based on what was thought to be the best ways to promote her best interests in the treatment of her physical disorders, and thus that need, and iii) the effects of her physical disorders and their treatment meant that she, like anyone else suffering the same physical disorders and having the same treatment was unable to be elsewhere or to give an informed consent to that treatment and its consequences on her freedom to leave the hospital. 131. This conclusion is focused on the facts of this case at the time of Maria’s death and the common sense approach adopted by Taylor LJ in Ex p Linnane. It means that the Coroner did not err in law and this application should be dismissed.

…. On Article 5 detention: 148. I acknowledge that s.4B and s.5 of the MCA recognise that some concrete situations involving life saving, vital or other treatment will give rise to a deprivation of the liberty of a person who lacks capacity (as defined by s. 2(1) of the MCA) to consent to the care and treatment and the consequences of it being given. 149. However, in my view this recognition does not found the view that all or indeed any particular life saving or vital treatment which has the results that: (i) the patient is under constant supervision and control and cannot leave the hospital, and (ii) the patient does not have the capacity to consent it to because of an impairment of, or disturbance in the functioning of, the mind or brain caused by the effects of a physical disorder and/or its treatment involve a deprivation of liberty. At the most it recognises that some may. Also, it recognises the history of applications under the inherent jurisdiction to authorise treatment and the restraining of a patient to give it (cf. NHS Trust I v G, supra). Such cases and those now brought in respect of serious medical treatment are often brought before the relevant treatment of a patient who lacks capacity starts (and thus before the onset of a lack of capacity caused by the physical disorder and/or its treatment). Also, a number are triggered by active resistance from family members to a particular course of treatment or active objections by the patient who lacks capacity or significant doubts over diagnosis and treatment or a history in which a patient with capacity has expressed objections to or doubts about certain types of treatment. Also, the determinative question is likely to be, on an application of the best interests test, what the care and treatment should be. 150. I acknowledge that when the autonomy element of the essence of Article 5 is taken into account difficult questions will arise on a fact sensitive basis in cases: (i) where the lack of capacity arises only from a physical disorder and/or its treatment, and (ii) where the lack of capacity so arises but also the patient does not or would not have capacity for other unconnected reasons. These will include issues relating to the length of time that the relevant care and treatment has lasted, changes in it and the impact of any pre-existing lack of capacity. On the fact sensitive exercise that is required by the authorities I do not have to

386 Richard Mumford and Rachel Marcus go and should not go further than the facts of the present case. But I do have to address the Claimant’s argument, in line with the approach suggested in the guidance given by the Law Society (see [65] of Gross LJ’s judgment), that the appropriate test is to ask the question what would be done if someone properly interested sought to remove the patient from the hospital or that became a live issue for any reason. 151. Like Gross LJ, I do not agree that this hypothetical question needs to be put in each case. This is because it does not reflect the concrete situation on the ground. Rather its introduction has the potential for promoting and introducing controversy (a) between the treating team and caring and responsible family members, such as the Claimant in this case, or (b) which would not exist if the patient had the benefit of such help and support. Further, a DOLS or a court process in a situation where there is no disagreement on the ground could be very damaging to the therapeutic relationships involved. 152. The hypothesis will in many cases lead to the result that hypothetically a treating team would seek to impose its view on a patient who lacked capacity. To my mind a conclusion that if it was challenged a treating team would seek to impose its view does not show whether or not the patient is free to leave or his autonomy is being overridden. Rather, any interference with those freedoms should be assessed against the actual situation. 153. So, for example, and in line with the Coroner’s guidance, if controversy has arisen and a DOLS authorisation has been sought this would be a factor in favour of a conclusion that the patient’s autonomy was being overridden and the absence of any such application would be a factor favouring the view that the care or treatment can be given in reliance of s. 5 of the MCA. 154. I acknowledge that this approach might at first sight be said to depart from the approach taken to compliance in Cheshire West (which is based on earlier Strasbourg cases) but, in my view, this is shown not to be the case if the need to seek authorisation is tested by reference to the additional safeguards it would provide and thus by reference to the need for the independent checks referred to by Baroness Hale to be in place to promote the autonomy element of the essence of Article 5. 155. This case and any other where the patient has a devoted family member who is actively involved and motivated by the best interests of the patient provide examples of concrete situations in which the patient has an appropriately independent person considering and assessing the options from the patient’s perspective. If that leads to accord with the treating team and any other interested family members as to what is in the best interests of the patient the need for additional checks does not exist on the ground. And, if the authorisation process was initiated, it would effectively replicate the existing safeguards to no good purpose and could have the damaging consequences referred to earlier

… 160. Applying my conclusions on the approach to be taken, at the time of her death: (i) Maria was not compulsorily detained, and so was not in state detention for the purposes of the CJA 2009, and further or alternatively (ii) Maria was not deprived of her liberty in breach of her Article 5 rights and so was not in state detention for the purposes of the CJA 2009. 161. The Coroner’s reasoning does not clash with mine in a way that shows he erred in law or for any other reason failed to take all and only relevant factors into account. In any event, I am of the view that on what I have concluded is the correct approach in law to the factors to be taken into account a Coroner could only reach the conclusion that Maria was not in “state detention” at the time of her death.

Inquests Concerning Mental Health and Capacity 387

Other Cases R (Maureen Speck) v HM Coroner For District Of York (Respondent) & (1) NHS England (2) Medacs (Interested Parties) [2016] EWHC 6 (Admin)—A coroner conducting an ECHR art 2 inquest is entitled to distinguish between issues which might arguably have been contributory factors in the death, and those which could not even arguably be said to have made any real contribution to the death. The Coroner may exercise discretion to decide to investigate the former, but has no discretion to investigate the latter.

IV. Practical Matters A. Witness and Expert Evidence (i) Issues Mental health inquests will frequently rely on witness evidence from clinicians and expert medical evidence, whether called by the coroner or the parties, in order for the coroner to determine such matters as the medical cause of death; whether there have been failures in medical care which led to the death, including those which might amount to neglect or which are due to systemic issues and which may engage Article 2; and, in a case where it appears the deceased may have taken his own life, his state of mind insofar as it goes to his intent to do so. In any mental health inquest where the deceased took his own life, issues may also arise as to: —— whether the care provided in the community was adequate and whether he should have been admitted as an in-patient; —— if he was an in-patient, whether his medication was appropriate; —— in any case, whether there has been a failure adequately to assess or review a patient, to set treatment plans, or to discharge him; —— if an in-patient, whether the observations prescribed were frequent enough or whether the intervals set were followed. In recent years there has also been a great deal of interest in the physical health care received by mental health patients and the adequacy of physical health provision may be a relevant area of inquiry for the coroner. As set out in Chapters 9 and 12, it is for the coroner to determine what witness or expert evidence is to be admitted, although interested parties should certainly make submissions as to what evidence they think necessary in writing to the coroner’s office or at any pre-inquest review hearing. Each of the following disciplines may also be a relevant area for expert evidence, depending on the issues that arise in any one inquest; however, it would be rare for any expert evidence to be necessary in any of the nursing or therapy disciplines.

388 Richard Mumford and Rachel Marcus

1. Psychiatry. In particular, the treating psychiatrist will usually be the responsible clinician for the patient and may be required to provide an overview of the deceased’s mental health and treatment. 2. Psychology. Whilst many mental health patients will have had contact with psychologists or those providing psychological therapies and consideration may be given to asking for witness evidence from those professionals, it would be unusual for this type of provision to be so relevant to the cause of death that expert evidence is required. 3. Psychiatric nursing. The day-to-day care of mental health patients both in in-patient facilities and in the community is generally carried out by registered mental health nurses and/or mental health support workers. 4. Therapists. Other para-clinical staff who may have had contact with the patient and have relevant evidence to give will be, for example, drugs or alcohol workers (although it will be rare that expert evidence would be required on this front). 5. General Practice. The GP is generally asked to provide witness evidence (whether written or oral) giving an overview of the patient’s mental and physical health care over what may be many years. Where a patient has not been in contact with referral mental health services, there may be questions to raise with an expert GP as to whether the care provided by the GP was adequate. 6. Physicians. This includes hospital disciplines of all kinds, who can give evidence as to the physical health care received by the deceased or what treatment he should have received. 7. Pathology/toxicology. In the vast majority of mental health inquests, especially where the deceased was prescribed medication, it will be appropriate for the pathologist to engage the assistance of a toxicologist to ascertain whether he was taking that medication or any drugs of abuse, and what levels these will have been at the time of death. It is likely that clinical evidence will be required in order to ascertain whether any drugs found in the deceased’s body at death would in fact have had an active influence on the deceased’s mental or physical state at the relevant time.

(ii) Relevant Cases (a) R (Warren) v HM Assistant Coroner for Northamptonshire [2008] Inquest LR 65, [2008] EWHC 966 (Admin) Keywords: Mental health, medical care, experts, prisons, Article 2 The deceased was detained in prison when he killed himself by hanging. He had no prior history of mental illness apart from a possible psychotic episode a week before his death. The Prisons and Police Ombudsman concluded that there had been ‘individual and s ystemic failures of disturbing proportions’ and various criticisms of the medical care were made.22 Before the inquest the family instructed an expert psychiatrist, Dr Turner, to produce a report. The coroner however decided not to call him as a witness. The family brought a judicial review of that decision before the inquest was held.

22 R (Warren) v HM Assistant Coroner for Northamptonshire. [2008] Inquest LR 65, [2008] EWHC 966 (Admin), paras 1–11.

Inquests Concerning Mental Health and Capacity 389

Foskett J: 36. [Counsel for the family] said that it is often easier to judge after an inquest has been held whether it would have been better for a particular witness to have been called to make it Article 2-compliant. That may be so, but I cannot use that expedient to avoid a difficult decision at this stage. In any event, it is far better, for obvious reasons, to endeavour to ensure that an inquest is Article 2-compliant before it takes place than to become engaged in the argument after a lengthy and expensive public exercise has taken place. 37. [Counsel for the prison doctors] has emphasised that the criticisms of what occurred at Rye Hill are likely to focus mostly on what can be termed systemic failures, rather than on individual failures. I suspect that there is some force in that, but as the House of Lords explained in Middleton, the borderline between the two is ‘indistinct and there will often be some overlap between the two’. 38. Doing the best I can on the material before me, my conclusion is that independent expert evidence, both at consultant and general practitioner level, may be evidence that will help the jury answer the questions said to be relevant in Middleton. 39. Given that what is to be expected of the systems of health care within a prison and of the individuals who provide it is the NHS standard available to the general public, then evidence of what that standard is, in my view, relevant. It would help to inform the issue of the adequacy or otherwise of the systems in place and of the way those operating those systems have acted. The need to avoid issues going to civil liability, which may of course also depend on evidence of a similar nature, would need to be addressed, but the fact that the evidence may be similar is not a reason for excluding it from the purview of the inquest. 40. I sense that this issue may have exercised the Coroner in making his decision. If I may say so, with respect, I can well understand that. But it seems to me to be more an issue of controlling the way in which the evidence is given and in the way it is, if received, put before the jury than ruling it out as a matter of principle. Indeed, I am not entirely sure that the Coroner has ruled evidence of this nature out in principle, but unfortunately the debate has focused almost exclusively on whether Dr Turner should provide that evidence. 41. What I am about to say is no reflection at all upon Dr Turner, whose expertise in the field of psychiatry is unquestioned. However, the Coroner has taken the view that Dr Turner’s proposed evidence goes further than it legitimately can for the reasons given in the letter and statement to which I have referred. Whilst others may well have taken a different view, I think it would be wrong for me to characterise that decision as so obviously wrong that I should interfere with it. As Jervis and general experience shows, a coroner has a wide discretion about how the proceedings are conducted and who it is ‘expedient’ to call as a witness. The coroner is not obliged to accept a proposed witness and, as I have said, I for my part would be very slow to interfere with that kind of decision. 42. It follows from this, therefore, that I am not prepared to grant the specific relief sought in the claim form, namely a declaration that the decision was unlawful, that it be quashed and that a mandatory order requiring the Coroner to call Dr Turner be made. I am, however, of the view that an inquest in this particular case that does not have available to it evidence from an independent consultant psychiatrist and, I would add, an independent general practitioner, would not comply with Article 2. This is not a decision I have reached lightly, because I recognise it may have implications for the commencement of the inquest. However, I cannot avoid the decision simply because it may be inconvenient. 43. The Coroner has said, as of course is to be expected, that he will abide by any order of the court. Subject to anything that counsel may wish to say, I would not propose to make any specific order. My view is, I trust, clear. How it is translated into practical effect for the purposes of the inquest is

390 Richard Mumford and Rachel Marcus very much a matter for the discretion of the Coroner, assisted by the parties who will be taking part. My position is simply that the effect of the Coroner’s decision concerning Dr Turner potentially deprives the inquest of evidence that may help the jury in its task. I am merely saying that this is a gap that should be filled. I have indicated my view that it should be filled by both a consultant and a general practitioner, the latter because the systems in place will inevitably have been served on a daily basis by general practitioners. 44. I should emphasise that this decision is confined solely to the facts of this particular case. It does not necessarily follow that evidence of this kind will be required in every case of a suicide in prison.

(b) Chambers v HM Coroner for Preston & West Lancashire [2015] EWHC 31 (Admin) Keywords: Mental health, medical care, experts, prisons The deceased was detained in prison and there was evidence he suffered from bullying and family problems. He had a history of attempted suicide whilst in custody. He died as a result of hanging whilst in prison. The family’s representatives complained of the coroner’s failure to obtain independent psychiatric evidence as to the deceased’s treatment, or lack of it, whilst detained in prison, and that the prison doctor who had prescribed him with anti-depressants had not been called to give evidence.23 They obtained expert evidence from their own expert psychiatrist who indicated that in his view the deceased should have been assessed by a psychiatrist whilst in prison and a detailed assessment of his diagnosis and risk undertaken.24 It was argued before the High Court that where a death in custody occurs and there is evidence that medical or psychiatric issues may have contributed to the death, an effective and independent investigation requires the obtaining of independent expert evidence; counsel for the family cited R (Wright) v Secretary of State for the Home Department25 and R (Warren) v HM Assistant Coroner for Northamptonshire.26 Bean LJ and the Chief Coroner: 30. Both Wright and Warren are cases with exceptional features. In Wright these included the fact that the shortcomings in the deceased’s medical treatment were so clear that liability for negligence was admitted; that the prison doctor responsible for Mr Wright’s treatment had been subject to restrictions on his practice; and yet he had not been called at the inquest, at which the family had no lawyer to represent them. In Warren there had been charges of manslaughter and perverting the course of justice brought against prison officers, and a finding by the Prison and Probation Ombudsman of ‘individual and systemic failures of disturbing proportions’, yet the Coroner was declining to call an independent consultant psychiatrist who had prepared a report at the request of the family. 31. Both these decisions are clearly correct, but they do not assist in the present case. They do not support the Claimant’s bold contention that independent psychiatric evidence must be called in every case of suicide in prison where there may be a mental health issue. Each case must be determined on its own facts. To suggest otherwise would be to fetter the discretion of the coroner. It is long-established law and practice that the coroner has a wide discretion in deciding which

23

Chambers v HM Coroner for Preston & West Lancashire [2015] EWHC 31 (Admin), para 20. ibid para 21. 25 R (Wright) v Secretary of State for the Home Department [2002] HRLR 1. 26 Warren (n 18). 24

Inquests Concerning Mental Health and Capacity 391 witnesses to call (see Mack v HM Coroner for Birmingham [2011] Inquest LR 17; [2011] EWCA Civ 712 at paragraph 9; R (LePage) v HM Assistant Coroner for Inner South London [2012] Inquest LR 31; [2012] EWHC 1485 (Admin) at paragraphs 44–54). This includes expert witnesses (see R (Takoushis) v Inner North London Coroner [2006] 1 WLR 461 at paragraph 61) such as psychiatrists (see, for example, R (Warren) v HM Assistant Coroner for Northamptonshire [2008] EWHC 966 (Admin) at paragraph 41). 32. Dr Snowden’s report suggests at its highest that there was a potential need for a referral of Mr Chambers to a psychiatrist ‘at some point’. In some cases that would have been the appropriate action. In this case it would not, for the reason quite simply that Dr Snowden, having reviewed the medical history of Mr Chambers, could not himself ‘give any support to a formal mental health depressive disorder diagnosis’. Mr Chambers undoubtedly suffered from low mood and declared himself at times to have a depressed mood. But he was treated accordingly, under the care of the prison health care team, nurses and general practitioners. That team makes the decision when appropriate to refer a prisoner to a psychiatrist; no such decision was made in this case. 33. In those circumstances Dr Snowden adds little or nothing to the medical picture. He expresses the opinion that there should have been a psychiatric referral but finds nothing in the medical history to suggest that a psychiatrist, if the referral had been made, would have been likely to recommend any different treatment from that given by the health care team. In that sense he neither supports the Claimant’s contention for ‘insufficiency of inquiry’, nor presents ‘new facts or evidence’ (section 13, Coroners Act 1988) of any substance. 34. Looking at the broader picture we are satisfied that there was sufficiency of inquiry in this case on all relevant issues. In particular there was sufficient inquiry into the management of the risk of suicide. Having reviewed the evidence which was called by the coroner, we observe that there was evidence before the jury on a range of relevant self harm issues: procedures relating to self-harm, general guidance, the 2052SH form process (including opening and closing of forms), the chronology of the use of forms in relation to Mr Chambers, the regular reviews of the forms in his case, and the specific decision to close the form on 16 December 2003. 35. Three reviews were conducted after Mr Chambers’ death into the health care he had received. Two of the reviewers, Ms Rimmer and Dr Allen, gave evidence at the inquest. All concluded that the care provided was of a reasonable standard and equivalent to care which would have been provided in the community. Apart from suggesting that there should have been a psychiatric referral, Dr Snowden does not disagree. He does not criticise the treatment provided. … 40. If the jury, having heard the evidence and followed the coroner’s directions, had wanted to conclude that the risk assessment process was inadequate they were free to make findings accordingly. In their narrative conclusion, to which we have already referred, the jury did make findings about contributory factors, particularly family problems and bullying. It must therefore be presumed from their silence on any other issues that they either found that risk management issues were not central issues in the case or that, if they were, there was no good reason to make findings about them. 41. For these reasons we reject the submission that there was insufficiency of inquiry. In our judgment the scope of the coroner’s inquiry was sufficiently full for the purposes of this particular case. 42. All prison death cases, especially self harm cases, must be given the most careful public scrutiny. As Lord Bingham said in R (Amin) v Home Secretary [2004] 1 AC 653 at paragraph 30: ‘The state owes a particular duty to those involuntarily in its custody.’ Lord Hope said in R (Sacker) v West Yorkshire Coroner [2004] 1 WLR 796 at paragraph 11: ‘So all the facts surrounding every suicide

392 Richard Mumford and Rachel Marcus [in prison] must be thoroughly, impartially and carefully investigated.’ It is therefore the duty of the coroner, acting as an independent judicial officer, to ensure that the process of inquiry is rigorous and full. In our judgment, on the particular facts of this case, it was. To comply with the procedural obligation in Article 2 of the European Convention of Human Rights the investigation must be ‘effective’: see Amin, above, at paragraph 25. In our judgment it was.

B. Documentary Evidence Generally inquests involving mental health issues where there has been contact with mental health services are like any other where questions are raised as to the deceased’s medical treatment, in particular in respect of the disclosure questions they raise.27 However, mental health care is often provided by a number of providers, whether NHS or private, each with their own records, both electronic and on paper. This is particularly true where the deceased has at any time been an in-patient or detained in a detention centre or prison. It is important for advisors to both families and interested parties ascertain that both they and the coroner have obtained all the relevant records relating to the deceased. Below is a list of the relevant documentation for which disclosure should be sought. (1) Psychiatric records (in-patient or in the community) (a) Continuous record/progress notes. These are usually electronic and contained within systems such as RiO or SystmOne. Some electronic systems will only print entries which have been ‘validated’ and it may be the case that entries have been made post-hoc. It is important to ask for the audit trial in cases where there is a suspicion that there are entries missing from the electronic record or where they have been post-dated or made posthumously. (b) Multi-disciplinary team meeting minutes. These are likely to be electronically filed but because they will relate to more than one patient, the holding party should undertake a disclosure exercise to identify relevant records and redact them to preserve the confidentiality of other patients. (c) Observation sheets, sleep charts etc. These may be handwritten, paper records which cover multiple patients including the deceased, and will not necessarily be disclosed with the electronic notes. Again, the holding party will need to undergo a ‘disclosure’ exercise in respect of these. (d) Mental Health Act documentation: for example, detention under section 2 or 3, leave under section 17. This will usually be handwritten. (2) GP records and district nursing records (3) Therapy records. These may be kept separately from the electronic progress notes and may belong to third parties other than the mental health trust providing psychiatric care. (4) Physical health records from any hospital with which the deceased had contact. This will usually be a different trust from that providing mental health care. 27

See Chapter 12 on evidence and Chapter 17 on medical inquests.

Inquests Concerning Mental Health and Capacity 393

(5) Investigation records. These could include any of the following: (a) 24/72 hour reports (often called the internal management review, or IMR) (b) Serious incident reports (whether the underlying interviews are disclosable will need to be considered) including a root cause analysis (c) Board level inquiry reports (d) Mortality and morbidity meeting notes (e) Action plans attached to any of the above, including the updated version to show what action has been taken since the incident giving rise to the report, and any supporting evidence (f) Audits (6) Complaints file containing correspondence between patient or patient’s family and other interested parties.

V. Conclusions: Issues Specific to Mental Health Inquests A. Suicide and Self-harm Sadly, acts of self-harm or suicide are frequently the cause of death in inquests involving mental health issues. For more detail on the following, see Chapter 15 on conclusions. In any inquest where the death appears to have been caused by an act of self-harm, the coroner will have to determine not only the act itself (such as tying a ligature around the neck, or stepping in front of a train), and whether it caused the death, but also the intention of the person at the time the act was committed. As set out in Chapter 15, she will have to determine (1) whether the deceased intended the act in question and (2) whether the deceased intended that act to end his life. Both of these elements must be to the criminal standard of proof, that is, beyond reasonable doubt. Families will also often have strong views as to whether a finding of suicide should be made. In inquests where the deceased had a history of mental health problems evidence is likely to be called from any mental health professionals with whom he had contact in order to determine his state of mind at the time he committed the act of self-harm. This will go both to the question of his intent and also to whether the coroner can append a rider such as ‘while the balance of his mind was disturbed’, although the Chief Coroner’s Guidance on conclusions indicates that ‘there is usually no longer any need’ to add these words.28 Evidence as to past suicidal thoughts or intent can represent evidence of a person’s intent at the time of taking the act which ended his life; however, some coroners will take a history of fluctuating suicidal intent as indicating that one cannot be sure that at the moment the deceased undertook the fatal act he intended it to end his life. Some coroners will also take evidence that the deceased suffered from certain mental illnesses or

28

Chief Coroner’s Guidance No 17, para 63.

394 Richard Mumford and Rachel Marcus

c onditions at the time of death as evidence that the deceased did not have the necessary intent to take his own life.

B. Causation Issues in Mental Health Inquests Just as in inquests where physical health care plays a part, the coroner must always answer the question as to whether different treatment or diagnosis would have made a difference. Causation is often in issue in cases involving death by suspension and where questions are raised as to the frequency of observations or the promptitude or adequacy of the resuscitation effort. Cardiologists or pathologists are often asked by coroners to give evidence as to the length of time it would take a person to lose consciousness, suffer brain injury or die after different types of suspension; if it cannot be concluded on the balance of probabilities that an earlier act (such as earlier observation or resuscitation) would have made a difference to the outcome, that act will usually fall outside the scope of the conclusion, unless it is relevant to the exercise of the coroner’s powers to write a prevention of future death report. This is particularly so in the light of the Chief Coroner’s Guidance on Reports to Prevent Future Deaths,29 which in the section on the role of the jury30 appears to confirm that his view of the judgments in Lewis is that the only occasion when a jury should be asked to consider factors which are not actually causative of death is when the assistance of the jury is required in order to resolve disputed or uncertain facts which are relevant to the exercise of the coroner’s power under paragraph 7 of Schedule 5. For further discussion on this topic, see Chapter 15 on conclusions and Chapter 25 on Reports to Prevent Future Deaths.31

29

Chief Coroner’s Guidance No 5, ‘Reports to Prevent Future Deaths’, 4 September 2013. ibid paras 39–40. 31 See R (Wiggins) v HM Assistant Coroner for Nottinghamshire [2015] EWHC 2841 (Admin) which affirmed that non-causative factors should not be left to the jury. 30

19 Article 2 and Local Authorities KATE BEATTIE

I. Overview The positive obligation under Article 2 of the European Convention of Human Rights (ECHR) to take appropriate steps to protect life has been held to apply in a range of situations involving the activities of local authorities. These include, for example, where the authorities are moving elderly residents out of a care home,1 or where the implementation of an eviction order gives rise to a risk of suicide.2 The positive obligation has also been considered by the Strasbourg Court in a number of cases concerning the management of dangerous activities,3 emergency services4 and emergency relief.5 However, Article 2 was held not to apply where the authorities were aware of risk to a child, but the risk was not one to life.6

II. Legislation and Other Sources Human Rights Act 1998 6. Acts of public authorities (1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right. …

1 Watts v United Kingdom (2010) 51 EHRR SE5 (adm. dec.). For domestic decisions on Art 2 and care homes, see R (Thomas) v Havering London Borough Council; R (W) v Coventry City Council [2008] EWHC 2300 (Admin); R (Haggerty) v St Helens Council [2003] EWHC 803 (Admin), para 30; R (Dudley & ors) v East Sussex County Council [2003] EWHC 1093 (Admin). 2 Mammadov v Azerbaijan, App no 4762/05, 17 December 2009. 3 Öneryildiz v Turkey (2005) 41 EHRR 20. 4 Furdik v Slovakia, App no 42994/05, 2 December 2008. 5 Budayeva v Russia, App no 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02, 20 March 2008, para 137. 6 R (Kent County Council) v HM Coroner for Kent (North-West District) [2012] EWHC 2768 (Admin), [2012] Inquest LR 110.

396 Kate Beattie 7. Proceedings (1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may— (a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or (b) rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act. 22. Short title, commencement, application and extent … (4) Paragraph (b) of subsection (1) of section 7 applies to proceedings brought by or at the instigation of a public authority whenever the act in question took place; but otherwise that subsection does not apply to an act taking place before the coming into force of that section.

See also: Article 2 in Schedule 1, Part 1 of the Human Rights Act 1998 (HRA 1998); and Section 5 of the Coroners and Justice Act 2009 (CJA 2009) (Matters to be ascertained).

Guidance See the Chief Coroner’s Guidance No 17 on Conclusions7 in relation to Article 2 inquests. Specific guidance on the application of Article 2 is anticipated but has yet to be published.

III. Cases (i) Öneryildiz v Turkey (2005) 41 EHRR 20, 18 BHRC 145, [2004] Inquest LR 108 Keywords: Article 2, human rights, local authorities In Öneryildiz, the European Court of Human Rights (ECtHR) emphasised that the positive, general obligations under Article 2 required a legislative and an administrative framework aimed at deterring threats to the right to life, especially in relation to dangerous activities. The applicant and his family lived in a slum near a municipal rubbish tip in Istanbul. In 1993 a methane explosion caused a landslide that killed 39 people, including the applicant’s relatives, and destroyed 10 homes. In 1991, almost two years prior to the explosion, the authorities had been warned of the life-threatening risks posed by the tip; however, even though the operation of household refuse tips and slum areas were subject to regulations, the authorities did not enforce them. Immediately following the accident, a committee of experts was commissioned to investigate who was responsible for the explosion. Their report concluded that the federal and

7 30 January 2015, from para 45. Available at www.judiciary.gov.uk/wp-content/uploads/2013/10/ guidance-no17-conclusions.pdf (3 March 2015).

Article 2 and Local Authorities 397

local authorities were predominantly to blame (although the inhabitants of the slum were also partly culpable by settling near the tip). Two officials were prosecuted and found guilty of negligence in the exercise of their duties. Their prison sentences were commuted to fines. In September 1993 the applicant sued four local and federal authorities, seeking compensation for the loss of his relatives and home. A court gave judgment in his favour, although it awarded minimal compensation. The compensation was not paid. The Grand Chamber unanimously held that there had been a breach of the substantive aspect of Article 2, and by 16 votes to one that there had been a breach of its procedural aspect: 70. In the instant case the complaint before the Court is that the national authorities did not do all that could have been expected of them to prevent the deaths of the applicant’s close relatives in the accident of April 28, 1993 at the Ümraniye municipal rubbish tip, which was operated under the authorities’ control. 71. In this connection, the Court reiterates that Art.2 does not solely concern deaths resulting from the use of force by agents of the state but also, in the first sentence of its first paragraph, lays down a positive obligation on states to take appropriate steps to safeguard the lives of those within their jurisdiction. The Court considers that this obligation must be construed as applying in the context of any activity, whether public or not, in which the right to life may be at stake, and a fortiori in the case of industrial activities, which by their very nature are dangerous, such as the operation of wastecollection sites (‘dangerous activities’). … 89. The positive obligation to take all appropriate steps to safeguard life for the purposes of Art.2 entails above all a primary duty on the state to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life. 90. This obligation indisputably applies in the particular context of dangerous activities, where, in addition, special emphasis must be placed on regulations geared to the special features of the activity in question, particularly with regard to the level of the potential risk to human lives. They must govern the licensing, setting up, operation, security and supervision of the activity and must make it compulsory for all those concerned to take practical measures to ensure the effective protection of citizens whose lives might be endangered by the inherent risks. Among these preventive measures, particular emphasis should be placed on the public’s right to information …

The ECtHR also commented upon the features of a competent judicial system that enforces the right to life: 94. To sum up, the judicial system required by Art.2 must make provision for an independent and impartial official investigation procedure that satisfies certain minimum standards as to effectiveness and is capable of ensuring that criminal penalties are applied where lives are lost as a result of a dangerous activity if and to the extent that this is justified by the findings of the investigation. In such cases, the competent authorities must act with exemplary diligence and promptness and must of their own motion initiate investigations capable of, first, ascertaining the circumstances in which the incident took place and any shortcomings in the operation of the regulatory system and, secondly, identifying the state officials or authorities involved in whatever capacity in the chain of events in issue.

398 Kate Beattie

The ECtHR concluded that the regulatory regime was defective because it allowed the rubbish tip to operate even though it did not conform to the necessary technical standards. Furthermore, the authorities had failed to take the necessary steps to protect the residents from the risks of living near the tip.8 As to the procedural aspect of Article 2, the domestic courts had failed to hold the authorities to account and had not effectively implemented the domestic provisions guaranteeing the right to life. This undermined the deterrent effect of the criminal law.9

(ii) Watts v United Kingdom (2010) 51 EHRR SE5, [2011] Inquest LR 157 Keywords: Article 2, human rights, local authorities As stated in Chapter 7 on Article 2, this case is an example of the very high threshold for proving a breach of Article 2. The ECtHR considered whether Article 2 was engaged when local authorities sought to transfer elderly patients, potentially increasing the risk to their life. Mrs Watts, who was in her 90s, lived in a care home that was owned and managed by Wolverhampton City Council. Following a consultation process, the council decided to close the care home on financial grounds and transfer the remaining residents to other homes. Mrs Watts applied to the High Court for permission to seek judicial review of the decision to close the care home and for an order for interim relief to prevent steps being taken to close the home. She contended that her life would be at risk if the transfer proceeded, as her life expectancy would be reduced by approximately 25 per cent. The domestic courts refused permission, so she applied to the ECtHR on the ground that her Article 2 rights, amongst others, would be violated by the transfer. By the time of the hearing, the applicant had been moved by the Council to a nearby nursing home with several fellow residents who were her friends. After setting out the history of the case, the ECtHR laid down the general principles: 82. The Court observes at the outset that art.2 imposes both negative and positive obligations on the state. The negative obligation prohibits the intentional and unlawful taking of life by agents of the state. The positive obligation incumbent on states under art.2 requires that they take appropriate steps to safeguard the lives of those within their jurisdiction. This implies, in appropriate circumstances, a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk. Although the Court originally explained that this positive obligation arose where there was a risk to life ‘from the criminal acts of another individual’, it has since made it clear the positive obligations under art.2 are engaged in the context of any activity, whether public or not, in which the right to life may be at stake. 83. For the Court to find a violation of the positive obligation to protect life, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. The Court reiterates that the scope of any positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities, including in respect of

8 9

Öneryildiz v Turkey (2005) 41 EHRR 20, 18 BHRC 145, [2004] Inquest LR 108, paras 109–10. ibid paras 117–18.

Article 2 and Local Authorities 399 the operational choices which must be made in terms of priorities and resources. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising.

The ECtHR held that there was no firm evidence of a decreased life expectancy provided there was a properly managed transfer. However, 88. … notwithstanding the uncertainty revealed in the medical literature, the Court is persuaded that a badly managed transfer of elderly residents of a care home could well have a negative impact on their life expectancy as a result of the general frailty and resistance to change of older people. Accordingly, the Court concludes that art.2 is applicable in the present case. The extent of any obligation to take specific measures, however, and in particular the proportionality of any measures called for by the applicant, must be assessed in light of the equivocal medical evidence as to the extent of any risk to life.

The ECtHR, though, held that the authorities had ‘met their positive obligations under Article 2’.10 Considering the operational choices that the local authorities faced, the transfer had been carefully planned and the council had taken appropriate steps to minimise the risk to Mrs Watt’s life. They declared the complaint manifestly ill-founded.

(iii) R (Kent County Council) v HM Coroner for Kent (North–West District) [2012] EWHC 2768 (Admin), [2012] Inquest LR 110 Keywords: Article 2, human rights, local authorities In November 2009 a 14-year-old boy, Edward Barry, died from a drugs overdose. The evidence suggested the overdose was not deliberate. In the nine months before his death Edward’s behaviour had deteriorated and his parents sought help from the claimant’s social services department (SSD). He was having significant problems at home and at school: he was taking drink and drugs, absent from home, and got into trouble with the police. In March he was alleged to have attempted suicide and made other claims of having suffered physical abuse. His parents contacted the SSD on numerous occasions seeking alternative accommodation and other forms of support. The SSD assessed him as being at a considerable risk, then later they designated him as a ‘child in need’ under the Children Act 1989. However, insufficient action was taken and his poor behaviour escalated. On the day of his death his parents contacted the SSD seeking urgent action as they were worried about his drug taking and absences from home. His school was also concerned about self-harm, child protection issues and his depression. Following his death a serious case review was undertaken, which found numerous shortcomings. The report concluded that his death may have been prevented. At the pre-inquest review the family successfully submitted that Article 2 was engaged. The claimant judicially reviewed the coroner’s decision on the basis that there was neither a substantive (general) breach nor an operational breach of Article 2.11 There was no systemic

10

Watts v United Kingdom (2010) 51 EHRR SE5, [2011] Inquest LR 157, para 92. R (Kent County Council) v HM Coroner for Kent (North-West District) [2012] EWHC 2768 (Admin), [2012] Inquest LR 110, paras 25 and 26. 11

400 Kate Beattie

failure; further, Edward was not sufficiently under the state’s control and did not meet the ‘real and immediate risk to life’ test so as to engage the state’s operational duty. Foskett J and the Chief Coroner, quashed the decision. The claimant had neither a general duty nor an operational duty towards the deceased. However, in terms of the threshold they first emphasised the stringent nature of the test: 43. It is of importance to remember that, in the context of the operational duty, it has been said that the test of ‘real and immediate risk to life’ is ‘a stringent one’ (per Lord Brown of Eaton-underHeywood in Van Colle v Chief Constable of the Hertfordshire Police [2009] 1 AC 225, para.115), ‘with a very high threshold’ (per Lord Hope of Craighead at para.69) and that it provides a ‘high hurdle’ (per Lord Carswell in Re Officer L [2007] 1 WLR 2135) … 44. There is, in our judgment, no doubt that the instant case, involving a vulnerable child in the circumstances we have outlined, enters into the potential territory of operational duty. It follows that the question to be considered in the first place … is whether there was a real and immediate risk to the life of EB in the period before his death. … 46. EB was undoubtedly vulnerable and at risk. But that risk, viewed objectively, was not a risk to life, certainly not a real and immediate risk to life. It was a risk of harm, but that should not, with all the wisdom of hindsight, be equated with a risk to life. Ms Gallagher identified that risk of harm in the Executive Summary of her Report, but she did not identify a risk to life. She identified the risks which he faced from his behaviour, but while she identified the risks as involving possible ‘significant harm’, at no stage did she say that the risk should have been assessed as more serious. 47. It follows, therefore, in our judgment, that there was no sufficient evidence of ‘a real and immediate risk to life’. Whilst EB told the claimant in March 2009 that he had made a suicide attempt, that was nine months before his death and there is no evidence that he took his life in the end … None of the incidents in the few months before EB’s death could be described as obviously life-threatening. … 49. Tragic, of course, as this case was, there was, in our judgment, no operational duty in place at the time of EB’s death and, accordingly, no scope for an Article 2 inquest. The claimant did not have parental responsibility for EB and he was not ‘in care’ in the sense that no proceedings had been commenced under section 31 of the Children Act 1989. He was not therefore living within the control or under the direct responsibility of the local authority. If there was no operational duty in place, there could be no breach of it. If there was no breach of any operational duty (the extra layer to the general duty) there could have been no breach of the general duty. In the absence of any breach of duty it follows that no procedural duty arises. There is, therefore, no burden upon the state to inquire under that duty by way of a Middleton inquest.

(iv) Ciechońska v Poland, App no 19776/04 (ECtHR, 14 June 2011) Keywords: Article 2, human rights, local authorities In 1999 the applicant’s husband died after being hit by a tree that toppled over and fell on him while he was walking on the pavement. Three other people were injured in the accident. Following his death an investigation was opened and the prosecutor, after having discontinued the investigation on four separate occasions, on 25 May 2001 indicted

Article 2 and Local Authorities 401

a municipal official for having failed to identify the tree that caused the accident as being dangerous. After a further eight years of legal proceedings, on 16 July 2009 the Regional Court finally acquitted the official. The applicant alleged that the state failed in its positive obligation to protect her husband’s life and to carry out an effective and thorough investigation into his death. The Court concluded that there had been a violation of Article 2. The ECtHR noted that the state’s positive obligation under Article 2 had been found to be engaged in a range of different contexts: 61. Such positive obligation has been found to arise in a range of different contexts examined so far by the Court. Thus, for example, and as regards policing, the Court has noted that the authorities are under a duty to protect the life of an individual where it is known, or ought to have been known to them in view of the circumstances, that he or she was at real and immediate risk from the criminal acts of a third party (see Osman, cited above, § 115). 62. The State’s positive obligation under Article 2 has also been found to be engaged in the health care sector, be it public or private, as regards the acts or omissions of health professionals (see Dodov v. Bulgaria, no. 59548/00, §§ 70, 79-83 and 87, ECHR 2008 …; Byrzykowski v. Poland, no. 11562/05, §§ 104 and 106, 27 June 2006; and Vo v. France [GC], no. 53924/00, §§ 89-90, ECHR 2004 VIII, with further references), as well as in respect of the management of dangerous activities (see Öneryıldız v. Turkey [GC], no. 48939/99, § 71, ECHR 2004 XII) and ensuring safety on board a ship (see Leray and Others v. France (dec.), no. 44617/98, 16 January 2008) or on building sites (see Pereira Henriques and Others v. Luxembourg (dec.), no. 60255/00, 26 August 2003). In certain circumstances positive obligations may attach to a State to protect individuals from risk to their lives resulting from their own action or behaviour (see Bone v. France (dec.), no. 69869/01, 1 March 2005, with further references). In addition, the extent of the State’s positive obligation under Article 2 has been addressed by the Court in the context of road safety (see, for example, Rajkowska v. Poland (dec.), no. 37393/02, 27 November 2007). The State’s duty to safeguard the right to life was also considered to extend to the provision of emergency services where it has been brought to the notice of the authorities that the life or health of an individual is at risk on account of injuries sustained as a result of an accident (see Furdik v. Slovakia (dec.), no 42994/05, 2 December 2008). 63. The above list of sectors is not exhaustive. Indeed, in its Oneryildiz v. Turkey judgment cited above (§ 71) the Grand Chamber observed that the Article 2 positive obligation must be construed as applying in the context of any activity, whether public or not, in which the right to life may be at stake. 64. However, the positive obligation is to be interpreted in such a way as not to impose an excessive burden on the authorities, bearing in mind, in particular, the unpredictability of human conduct and operational choices which must be made in terms of priorities and resources (see, amongst other authorities, Keenan v. the United Kingdom, no. 27229/95, § 90, ECHR 2001 III, and A. and Others v. Turkey, no. 30015/96, §§ 44–45, 27 July 2004).

In the present case, the Court held that the following principles applied to determining whether the legal system dealt adequately with the case: 69. Having regard to the approach adopted in previous cases involving non-intentional infringements of the right to life, the Court reiterates that the aforementioned positive obligations require States to adopt in this context regulations for the protection of people’s safety in public spaces, and to ensure the effective functioning of that regulatory framework (see Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 49, ECHR 2002 I, and Furdik, cited above).

402 Kate Beattie 70. The Court firstly notes that there existed legal regulations regarding care and maintenance of greenery in towns, including trees growing on municipal land … The Court is not required, however, to arrive at general conclusions about the relevant regulatory regime in abstracto. It must examine whether the legal system as a whole dealt adequately with the case at hand (see Dodov v. Bulgaria, cited above, §§ 83 and 86). 71. Secondly, the Court reiterates that an issue of State responsibility under Article 2 of the Convention may arise in the event of the inability of the domestic legal system to secure accountability for any negligent acts endangering or resulting in the loss of human life (see Furdik, cited above). In such a case the Court must examine whether the available legal remedies, taken together, as provided in law and applied in practice, could be said to have amounted to legal means capable of establishing the facts, holding accountable those at fault and providing appropriate redress to the victim.

The Court concluded that in the present case 78. … neither the criminal proceedings nor the possibility to bring a civil action enabled the applicant effectively to establish any liability for the death of her husband and to obtain appropriate redress. The legal system as a whole, faced with an arguable case of a negligent act causing death, failed to provide an adequate and timely response consonant with Poland’s obligations under Article 2.

Other Cases Kolyadenko v Russia (2013) 56 EHRR 2—the applicants alleged that the state was responsible for having put their lives at risk and for damage done to their homes and property as a result of a sudden large-sale evacuation of water from the Pionerskoye reservoir and the ensuing flooding in the area around the reservoir on 7 August 2001. The authorities had not given any warning that the evacuation would occur. The applicants also complained that they had no effective remedies in that regard. The Court concluded12 that ‘the authorities had positive obligations under Article 2 of the Convention to assess all the potential risks inherent in the operation of the reservoir, and to take practical measures to ensure the effective protection of those whose lives might be endangered by those risks’. It held that the substantive13 and procedural obligations14 under Article 2 had been breached. Mammadov v Azerbaijan (2014) 58 EHRR 18—after repeated warnings from the local authorities that the applicant was illegally occupying the premises, on 26 March 2004 a group of local authority officials and police officers arrived at the building to evict the family. They had no court order for the eviction. The applicant’s wife threatened to

12

Kolyadenko v Russia (2013) 56 EHRR 2, para 166. ibid paras 185–87. 14 ibid paras 190–92. 13

Article 2 and Local Authorities 403

self-immolate if they were evicted, before setting herself on fire. She later died of her extensive burns. The Court considered whether the stage agents were responsible for the applicant’s wife’s death, including whether there was a lawful basis for the operation. As to the relevant principles, the Court concluded that if state agents were to become aware of a threat to life a sufficient time in advance, a positive obligation arises under Article 2 requiring them to prevent this threat from materialising, by any means which are reasonable and feasible in the circumstances.15 Although the ECtHR did not find a breach of the substantive aspect of Article 2, there had been a procedural breach because the investigation had been insufficient.

15

Mammadov v Azerbaijan (2014) 58 EHRR 18, in particular paras 11–16.

404

20 Deaths in Custody PETER SKELTON QC AND LOIS WILLIAMS

I. Overview This chapter addresses deaths in the custody of the state in a prison, police station or immigration centre.1 Deaths involving detention for mental health reasons are discussed in Chapter 18. All deaths in ‘custody or otherwise in state detention’ must be investigated by the coroner.2 There are compelling reasons for this. First, the state is responsible for the welfare, health and safety of its detainees and so must account fully for their deaths. Second, detainees often have histories of mental health problems, substance abuse or self-harm which, when combined with the inherent stresses of detention, render them vulnerable to thoughts of suicide. Third, prisons, police cells and detention centres may contain dangerous and violent individuals who, if not monitored and controlled, may present a risk to the safety of others. The Prisons and Probations Ombudsman (PPO) is responsible for investigating all deaths in prisons and immigration removal centres.3 His reports and supporting evidence, including statements or interviews, are provided to the coroner and will ordinarily provide a helpful introduction to the circumstances of the death and its potential causes.4 Where

1

Specifically, immigration removal centres (IRCs) and immigration detention centres (IDCs). Section 1(2)(c) of the Coroners and Justice Act 2009 (CJA 2009), as set out below. The word ‘custody’ is not defined explicitly in the Act. It may be interpreted narrowly to mean detention by the police or prison authorities in a criminal justice context; or more widely to include detention in an immigration or mental health context. In any event, s 48 of the Act states: ‘A person is in state detention if he or she is compulsorily detained by a public authority within the meaning of section 6 of the Human Rights Act 1998 (c. 42)’. So all forms of compulsory state detention must be investigated. 3 In October 2014, the Home Office issued Detention Services Order (DSO) 08/2014, updating its general guidance on ‘Deaths in detention’, which was first published in 2012. The DSO ‘provides instruction and guidance for service providers and all staff operating in immigration removal centres (IRCs), pre-departure accommodation (PDA), short-term holding facilities (STHFs) and the detainee escorting and population management unit (DEPMU) about their responsibilities if a detainee or resident dies in Home Office detention, or under escort (including when under bed watch), or in hospital following release from Home Office detention.’ The 2014 version, which is due for review in October 2015, can be found at: www.gov.uk/government/uploads/system/uploads/ attachment_data/file/388601/Death_in_Detention_DSO_08-2014.pdf. 4 The relevance of the PPO’s report to the coroner’s determination of an inquest’s scope was recognised by Lord Phillips in R (L) v Justice Secretary [2009] 1 AC 588, para 18. However, the question of whether it is appropriate for the coroner to call the PPO or the author of the PPO report (the investigator) to give oral evidence at an 2

406 Peter Skelton QC and Lois Williams

a prisoner or detainee has died while undergoing medical treatment, the PPO report will often be accompanied by a separate clinical review by the health care provider containing a qualitative analysis of provision of care to the deceased. These reviews are also often useful in identifying potential issues for exploration by the coroner. More general information about individual prisons and other detention facilities may be found in the reports published by HM Inspectorate of Prisons.5 These include data and findings in respect of detainee safety. Deaths in police custody are investigated by the Independent Police Complaints Commission (IPCC).6 The resulting reports and associated evidence are provided to coroners. The reports are also sent to families and the relevant police forces; and eventually they are made public, usually after the inquest (or prosecution or disciplinary action, if any). Certain categories of death in custody/detention will automatically engage Article 2 and warrant a full Middleton inquest, namely where the death is unexplained or results from violence or self-harm. In other cases, Article 2 will be engaged where the death is suspicious or there is an arguable breach of the general/systemic or operational duties. These criteria and their application are discussed in detail in Chapter 7. An inquest into a death in custody or otherwise in state detention must be held with a jury if the coroner has reason to suspect the death was violent or unnatural, or the cause of death is unknown.7 A jury is also required where the coroner has reason to suspect that the death resulted from an act or omission of a police officer or a member of a service police force in the purported execution of the officer’s or member’s duty.8 Those practising in the field of prison inquests will need to develop a working familiarity with the types of records that are routinely maintained. These include, in addition to handwritten wing records: (1) Assessment, care in custody and teamwork (ACCT) documentation—which records the procedures used to monitor and support those at risk of suicide or self-harm; (2) Cell-sharing risk assessments (CSRAs)—which record the assessment of the risks posed by prisoners to their cell mates; (3) OASys (offender assessment system)—the nationally designed and prescribed framework for probation and prisons to assess offenders; (4) PERs (prisoner escort records)—which contain information about the risks posed by prisoners on external movement from prisons or transfer within the criminal justice system; (5) P-Nomis—the prison national offender management information system, the electronic system holding personal details of all prisoners; and (6) SystmOne—the electronic clinical information system.

inquest has yet to be fully resolved by the English courts. Arguably, their findings and conclusions are expressions of opinion that usurp the function of the coroner or jury. See the Northern Irish case of Siberry’s Application (2) [2008] NIQB 147, set out below. 5 www.justiceinspectorates.gov.uk/hmiprisons/.

6 www.ipcc.gov.uk/. See in particular: www.ipcc.gov.uk/sites/default/files/Documents/investigation_ commissioner_reports/guide_to_IPCC_investigations.pdf. 7 CJA 2009, s 7(2)(a), quoted in full below. 8 CJA 2009, s 7(2)(b), quoted in full below.

Deaths in Custody 407

Disclosure of relevant records will ordinarily be one of the principal issues to be addressed at the pre-inquest review hearing (PIRH) which, except where the cause of death is natural causes and there are no other issues, will always be required.9

II. Legislation and Other Sources Coroners and Justice Act 2009 1. Duty to investigate certain deaths (1) A senior coroner who is made aware that the body of a deceased person is within that coroner’s area must as soon as practicable conduct an investigation into the person’s death if subsection (2) applies. (2) This subsection applies if the coroner has reason to suspect that— … (c) the deceased died while in custody or otherwise in state detention. … 4. Discontinuance where cause of death revealed by post-mortem examination (1) A senior coroner who is responsible for conducting an investigation under this Part into a person’s death must discontinue the investigation if— (a) an examination under section 14 reveals the cause of death before the coroner has begun holding an inquest into the death, and (b) the coroner thinks that it is not necessary to continue the investigation. (2) Subsection (1) does not apply if the coroner has reason to suspect that the deceased— (a) died a violent or unnatural death, or (b) died while in custody or otherwise in state detention. … … 7. Whether jury required (1) An inquest into a death must be held without a jury unless subsection (2) or (3) applies. (2) An inquest into a death must be held with a jury if the senior coroner has reason to suspect— (a) that the deceased died while in custody or otherwise in state detention, and that either— (i) the death was a violent or unnatural one, or (ii) the cause of death is unknown, (b) that the death resulted from an act or omission of— (i) a police officer, or (ii) a member of a service police force, 9 See

Shafi v HM Senior Coroner for East London [2015] EWHC 2106 (Admin), below.

408 Peter Skelton QC and Lois Williams in the purported execution of the officer’s or member’s duty as such, or (c) that the death was caused by a notifiable accident, poisoning or disease. … 11. Duty or power to suspend or resume investigations Schedule 1 makes provision about suspension and resumption of investigations.

Guidance Chief Coroner Guidance No 5, ‘Reports to Prevent Future Deaths’, 4 September 2013: Reports about deaths in custody 48. All reports and responses about deaths in prisons and other detention centres should as a matter of good practice be sent to HM Inspectorate of Prisons in all cases. The present Inspector has indicated that he would welcome this practice. They should also be sent to the National Offender Management Service and the Independent Advisory Panel on Deaths in Custody.

Governance in Prisons Since 31 July 2009, the rules, regulations and guidelines governing how prisons should be run have been published by the Ministry of Justice (MOJ) in the form of prison service instructions (PSIs). Prior to that date, such operating instructions were issued in the form of both PSIs and prison service orders (PSOs). Most PSIs and PSOs are accessible on the MOJ’s website: www.justice.gov.uk/offenders. All PSIs have a fixed expiry date. PSOs do not have a fixed expiry date and remain in force until cancelled or replaced. Therefore it is important to check which PSIs or PSOs were in force at the relevant time. Those referred to in this chapter are all in force at the time of writing. Examples of PSOs and PSIs particularly relevant to the treatment and welfare of prisoners are: —— Early days in custody—reception in, first night in custody, and induction to custody, PSI 07/201510 —— Use of force, PSO 1600 —— Management of prisoners at risk of harm to self, to others and from others (Safer Custody), PSI 64/201111 —— Investigations and learning following incidents of serious self-harm or serious assaults, PSI 15/201412

10 11 12

Expiring on 28 February 2016. Expiring on 31 January 2016. Effective from 14 April 2014, reissued on 11 July 2014, and expiring on 2 April 2018.

Deaths in Custody 409

—— Clinical governance—quality in prison health care, PSO 3100 —— Continuity of health care for prisoners, PSO 3050 —— Clinical services for substance misusers, PSO 3550 See also: —— —— —— ——

PPO terms of reference13 PPO disclosure policy14 PPO guidance on clinical reviews15 PPO Memorandum of understanding between the Prisons and Probation Ombudsman (PPO) and the Coroners Society of England and Wales (CSEW)16

III. Cases A. Article 2 (i) Keenan v United Kingdom (2001) 33 EHRR 38 Keywords: Prisons, suicide, Article 2 For a fuller summary of the facts see Chapter 7. The applicant’s mentally ill son committed suicide on 15 May 1993 in Exeter Prison where he was serving a four-month sentence for assaulting his girlfriend. Nine days before his expected release date, he had been given a disciplinary punishment for assaulting two prison officers, which consisted of seven days of segregation in the punishment block and an additional 28 days’ imprisonment. The applicant, inter alia, complained that the prison authorities had failed to protect her son’s right to life under Article 2 of the Convention. The Court stressed that persons in custody were in a vulnerable position and the authorities were under a duty to protect them. The obligation on the state to account for any injuries suffered in custody was particularly stringent where the individual died. However, the Court held unanimously that there had been no violation of Article 2. The positive obligation arose when it could be established that the authorities knew or ought to have known at the time of the existence of a real immediate risk to the life of an identified individual and they failed to take reasonable measures. Here, the prison authorities were aware that Mark Keenan posed a potential risk to his own life. However, the immediacy of the risk varied and he was not at immediate risk throughout the period of detention. Instead the variability of his condition required that he be monitored carefully in case of sudden deterioration. The question was whether the prison authorities did all that was reasonably expected of them, having regard to the nature of the risk. The Court held that on the whole, the authorities

13 www.ppo.gov.uk/about/vision-and-values/terms-of-reference/. See, in particular, the section on Fatal Accidents at paras 29–32. 14 www.ppo.gov.uk/investigations/investigating-fatal-incidents/disclosure-policy/. 15 www.ppo.gov.uk/updated-guidance-for-clinical-reviews/. 16 www.coronersociety.org.uk/documents/rippleffect_test/memorandum_of_understanding_with_ coroners_-_approved_july_2012.pdf.

410 Peter Skelton QC and Lois Williams

made a reasonable response to Mark Keenan’s conduct, placing him in hospital care and under watch when he evinced suicidal tendencies. He was subject to daily medical supervision by the prison doctors, who found him fit for segregation. There was no reason to alert the authorities on 15 May 1993 that a suicide attempt was likely. In these circumstances it was not apparent that the authorities omitted any step which should have reasonably been taken.

(ii) Salman v Turkey (2002) 34 EHRR 17 Keywords: Police, Article 2 This case arose out of the death of Agit Salman who died whilst in police custody. Forensic examination noted grazes to Mr Salman’s body and an old traumatic ecchymosis on the front of his chest. An autopsy was performed and the internal examination made various findings relating to Mr Salman’s lungs, heart and brain. It also noted that his sternum was fractured and the surrounding soft tissues revealed fresh haemorrhage, which could have been caused by attempted resuscitation. The subsequent autopsy report concluded that the cause of death could not be established and referred the case to the Istanbul Forensic Medicine Institute (IFMI). The body was released to the family who took photographs of marks of Mr Salman’s body and handed them over to the public prosecutor, who also took statements from various police officers. The resulting report by the IFMI adopted the findings of the forensic examination, stating that the fresh haemorrhage around the sternum could be attributed to a resuscitation attempt and the superficial traumas on his body could be attributed to his resistance and struggle on arrest or his being put in the police vehicle. According to the report, the evidence suggested that Mr Salman had long-standing heart disease and his death within 24 hours of being apprehended could have been caused by cardiac arrest brought about by the pressure of the incident in addition to his existing heart disease. The public prosecutor relying upon this report issued a decision not to prosecute. Upon a successful appeal by the applicant, 10 police officers were indicted and charged with homicide but the Adana Assize Court found that it could not be established that the defendants had exerted force or used violence on Mr Salman and acquitted the defendants on the ground of inadequate evidence. Mr Salman’s widow alleged that her husband had died as a result of torture at the hands of the police officers. She asked the European Court to endorse the Commission’s opinion that there had been a violation of Article 2 of the Convention on the ground that the investigation into the death of her husband had been so inadequate and ineffective as to amount to a failure to protect the right to life. In particular, she argued that the investigation was ineffective due to the absence of the necessary medical evidence. The Government maintained that the applicant’s allegations were unfounded, relying on the autopsy and IFMI report and arguing that the investigation was adequate and effective. The Court heard expert medical evidence that called into question some of the autopsy’s findings and criticised its procedures which had failed to properly evaluate the circumstances of Mr Salman’s death. The Court reaffirmed the particular vulnerability of persons in custody, stating: 99. In the light of the importance of the protection afforded by Article 2, the Court must subject deprivations of life to the most careful scrutiny, taking into consideration not only the actions of

Deaths in Custody 411 State agents but also all the surrounding circumstances. Persons in custody are in a vulnerable position and the authorities are under a duty to protect them. Consequently, where an individual is taken into police custody in good health and is found to be injured on release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused (see, among other authorities, Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999-V). The obligation on the authorities to account for the treatment of an individual in custody is particularly stringent where that individual dies.

Applying this to the case, the Court held that no plausible explanation had been provided for the injuries to Mr Salman’s body and found that the Government had not accounted for his death by cardiac arrest during his detention. Accordingly there had been a violation of Article 2 in that respect. The Court also held that the authorities failed to carry out an effective investigation into the circumstances surrounding the death. The Court observed that the autopsy examination was of critical importance in determining the facts and identified several defects in the autopsy examination (in particular, ‘the lack of proper forensic photographs of the body and the lack of dissection and histopathological analysis of the injuries and marks on the body’),17 which were compounded by the IFMI’s support for the autopsy’s conclusions. These defects fundamentally undermined any attempt to determine police responsibility for the death. This also amounted to a violation of Article 2.

(iii) Edwards v United Kingdom (2002) 35 EHRR 19 Keywords: Prisons, unlawful killing, Article 2 For a fuller summary of the facts see Chapter 7. Christopher Edwards was killed by his prison cell mate, Richard Linford on 29 November 1994, whilst he was held on remand in Chelmsford Prison. No inquest was held and the criminal proceedings did not involve a trial at which witnesses were examined, as Richard Linford pleaded guilty to manslaughter. The European Court subsequently found that there had been breaches of both the substantive and procedural Article 2 obligations, stating as follows in respect of the latter: 69. The obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 of the Convention to ‘secure to everyone within [its jurisdiction the rights and freedoms defined in [the] Convention’, also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force. The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. What form of investigation will achieve those purposes may vary in different circumstances. However, whatever mode is employed, the authorities must act of their own motion, once the matter has come to their attention. They cannot leave it to the initiative of the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures. 70. For an investigation into alleged unlawful killing by State agents to be effective, it may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events. This means not only a lack of hierarchical or institutional connection but also a practical independence. 17

Salman v Turkey (2002) 34 EHRR 17, para 106.

412 Peter Skelton QC and Lois Williams 71. The investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances and to the identification and punishment of those responsible. This is not an obligation of result, but of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including inter alia eye witness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death. Any deficiency in the investigation which undermines its ability to establish the cause of death or the person or persons responsible will risk falling foul of this standard. 72. A requirement of promptness and reasonable expedition is implicit in this context. While there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities in investigating a use of lethal force may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts. 73. For the same reasons, there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next-of-kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests.

(iv) R (Amin) v Secretary of State for the Home Department [2003] UKHL 51, [2004] 1 AC 653 Keywords: Prisons, unlawful killing, Article 2 The issue in this case was whether the UK had complied with its duty under Article 2 to investigate the circumstances of the murder in March 2000 of Zahid Mubarek, a 19-yearold prisoner serving a sentence in Feltham Young Offender Institution, by his cellmate, Robert Stewart. Prior to the murder, Mr Stewart had been accommodated for short periods at Feltham; and in January 2000 an intercepted letter from him was found to contain racist language and staff were warned that he was dangerous. On 7 February 2000, he was transferred to Feltham on a longer term basis and after one night was placed in a cell with the deceased, which was apparently the only place available. The allocation decision was made by an officer who did not recollect being warned that Mr Stewart was dangerous and did not consult his security file, or his wing file which did not reach Feltham until later. Mr Stewart shared the cell with the deceased from 8 February to 2 March 2000, when on the day the deceased was due to be released, Mr Stewart battered him into a coma from which he never recovered. Upon his death, the Director General of HM Prison Service wrote to the deceased’s parents apologising unreservedly for the failure of the prison service to look after the deceased and accepting responsibility for his death. He informed them that an internal inquiry had been set up under the leadership of Mr Ted Butt, a serving governor and senior investigating officer of the prison service. An inquest into the deceased’s death was formally opened on 31 March 2000 and then adjourned pending trial of the murder charge against Mr Stewart. Mr Stewart’s trial started on 24 October 2000 and he was convicted of murder. Although the Court heard evidence of the circumstances immediately surrounding the killing, there was no exploration of cell

Deaths in Custody 413

allocation procedures or other events before the murder. Following the conviction the coroner declined to resume the inquest. The police investigated whether the prison service should be prosecuted for manslaughter by gross negligence or under section 3 of the Health and Safety at Work etc Act 1974, but were advised that there was insufficient evidence to provide a realistic prospect of securing any conviction. The deceased’s family were consulted about the Butt Inquiry’s terms of reference but were not present at any stage of the investigation and did not avail themselves of the offer to meet Mr Butt. The report, which identified a number of shortcomings at Feltham, was made available to the police and the Commission for Racial Equality (CRE) but was not published. The CRE decided to conduct an investigation into racial discrimination in the prison service. The family were involved in the preparation of the terms of reference but their requests to participate in the inquiry and for it to be held in public were refused. The family then sought an independent public inquiry into the deceased’s death. The Home Secretary’s refusal was the subject of the appeal that came before the House of Lords. The House of Lords reviewed the Strasbourg case law on Article 2, focusing particularly on Edwards v United Kingdom which bore strong similarities to the present case. In his leading judgment Lord Bingham then concluded that: 31. The state’s duty to investigate is secondary to the duties not to take life unlawfully and to protect life, in the sense that it only arises where a death has occurred or life-threatening injuries have occurred: Menson v United Kingdom, page 13. It can fairly be described as procedural. But in any case where a death has occurred in custody it is not a minor or unimportant duty. In this country, as noted in paragraph 16 above, effect has been given to that duty for centuries by requiring such deaths to be publicly investigated before an independent judicial tribunal with an opportunity for relatives of the deceased to participate. The purposes of such an investigation are clear: to ensure so far as possible that the full facts are brought to light; that culpable and discreditable conduct is exposed and brought to public notice; that suspicion of deliberate wrongdoing (if unjustified) is allayed; that dangerous practices and procedures are rectified; and that those who have lost their relative may at least have the satisfaction of knowing that lessons learned from his death may save the lives of others.

Lord Bingham concluded that whilst it was correct to say that the European Court had not prescribed a single model of investigation to be applied in all cases, it had laid down minimum standards which must be met, whatever form the investigation took. In this case, the following factors were relevant in ordering an inquiry into the deceased’s death: (1) the fact there was no inquest; (2) the police investigations into criminal culpability were (correctly) conducted in private and without participation by the family; (3) the trial of Mr Stewart involved little exploration of wider issues concerning the death; (4) Mr Butt’s Inquiry could not be considered independent. In addition, his investigation was conducted in private, the family were unable to play any effective part in it and the report was not published; (5) the CRE report was confined to race-related issues, its inquiry was largely conducted in private, and the family were again not able to play any effective part in it. A full public inquiry into Mr Mubarek’s death was subsequently initiated by the Home Secretary, chaired by Mr Justice Keith.18 18 The resulting report was published in 2006 and may be found at www.gov.uk/government/publications/ report-of-the-zahid-mubarek-inquiry.

414 Peter Skelton QC and Lois Williams

(v) R (Davies) v HM Deputy Coroner for Birmingham [2003] EWCA Civ 1739, [2003] Inquest LR 27 Keywords: Prisons, medical care, Article 2 The claimant appealed against an order of Moses J dismissing her application for judicial review of a coroner’s inquisition into the death of her son, Darren Davies, in Winson Green Prison. On 1 March 2001, Darren was seen on his admission to Winson Green by a doctor who noted that he had taken heroin the day before. Darren complained of aches and pains. The doctor prescribed him detoxification drug treatment, to be taken over a period of four days. On 5 March 2001, Darren was found unconscious and not breathing. Resuscitation was attempted and an ambulance called, but he died. At the inquest, Darren’s cellmate described how his symptoms had worsened in the days between his admission and his death and how he would clean up the cell from Darren’s vomiting and diarrhoea so as to not get into trouble, as a result of which the prison staff were unaware of it. On the evening before Darren died, a night agency nurse (Nurse Spencer) attended and advised Darren’s cellmate to make sure that Darren went for treatment the next morning. She did not take a history from Darren. When she returned to the prison’s health centre she ascertained that it was full and could not accommodate any more prisoners. The next morning Darren fell from his bed. The same nurse attended and told him that a doctor would see him. Less than an hour later he died. Four doctors expressed their opinions as to the cause of Darren’s death. Dr Tapp, a pathologist instructed by Darren’s family, said in a written report that he died of dehydration, consistent with someone suffering from significant diarrhoea and vomiting. Although the cause might never be ascertained, it was unlikely to be drug withdrawal. Dr Ralli, a prison doctor from another prison provided an independent report. He stated that the cramps in Darren’s upper limbs, in particular his hands, were unusual. Dr Khan, who was an expert on the effects of opiate withdrawal, described Darren’s symptoms as being most unusual, particularly those of very severe dehydration. Dr Acland, a Home Office pathologist, also agreed that the cause of death was unusual. His view was that Darren had died from the complications of dehydration. In his report, Dr Ralli commented on clinical issues including his opinion that (1) the nurse who attended on the evening before Darren’s death should have discussed the case with the duty doctor; (2) the nurse should have been able to move him to an area for closer health care supervision. However, the prison did not have such a resource, since in-patients were not monitored by health care staff through the night; and (3) Darren’s collapse in the early hours was unusual and there should have again been discussion with the duty doctor and arrangements made for closer monitoring. The coroner ruled that these points should not be given in evidence to the jury although other points about Darren’s unusual presentation and the fact that the nurse did not elicit all the available information were put before the jury. The jury returned a verdict of accidental death. The claimant’s case was that the coroner had failed properly to direct the jury as to the meaning of neglect, failed to admit the evidence from Dr Ralli and failed adequately to leave to the jury the issue as to whether the system for Darren’s care after admission was defective. In particular the claimant argued that the coroner had emphasised wrongly that a verdict with a contributory neglect rider

Deaths in Custody 415

was rare, and had failed to explain that there were circumstances in which the nurse’s failure to seek assistance could amount to neglect. The claimant also alleged that the coroner failed to leave to the jury any issues relating to a systematic failure in the prison’s arrangements for caring for a prisoner suffering from drug withdrawal. At first instance Moses J concluded that, whilst the jury was not wrongly deprived of the opportunity to hear all of Dr Ralli’s criticisms, the coroner’s directions were deficient in that he had failed to explain to the jury the circumstances in which it was open to them to find that Nurse Spencer’s conduct amounted to neglect, and that he had also failed to leave it open to them to find systemic neglect. However, he felt that recommendations were made by the coroner to the prison after Darren’s death and it was therefore difficult to see what more would be gained from another inquest, thus declining to quash the verdict or order a fresh inquest. In the Court of Appeal, Brooke LJ concluded that the jury was not instructed to consider a verdict of systematic neglect at all. Whilst the prison held just over 900 prisoners at the time, of whom 75–80 per cent had some kind of drug problem, the jury was not invited to consider the adequacy of a system of basic medical care where a single nurse had to decide whether a doctor should attend on the basis of an incomplete medical history, and who did not have the opportunity of discussing the case with a professional colleague. Even if the nurse had thought that Darren required closer observation, there was no room for him in the prison’s health care centre, and even if he had been moved there his condition would not have been monitored by health care staff throughout the night. Brooke LJ stated at paragraph 63 that: … I do not consider that this judgment can stand. It is not a case in which any of the other procedures from the time to time suggested by the Strasbourg court would have been appropriate for ECHR Art.2 procedural purposes. Disciplinary procedures against Nurse Spencer (or anyone else) could not have been in question. With no dependency claim and with formidable problems on causation, nobody would seriously contemplate bringing a civil claim against the prison on behalf of Darren’s estate. It is the inquest, and the inquest alone, that has to carry the burden of fulfilling this country’s Convention obligations, and an inquest which did not canvas the issue of systemic neglect properly or at all did not perform that function.

The Court therefore allowed the appeal and quashed the inquisition stating that there should be a new inquest or inquiry.

(vi) R (Middleton) v HM Coroner for Western Somerset [2004] UKHL 10, [2004] 2 AC 182 Keywords: Prisons, conclusions, Article 2 Colin Middleton took his own life by hanging himself in his cell at HMP Horfield on 14 January 1999. In November 1998 he had harmed himself seriously and a self-harm at risk form F2052SH (since superseded by the Assessment, Care in Custody & Teamwork (ACCT) regime) had been opened but then closed. There was evidence that he was depressed and he was receiving medication at the time of his death. At the second inquest into Mr Middleton’s death, the verdict from the first having been quashed, the coroner ruled that the issue of ‘neglect’ should not be left to the jury. But he told the jury that if they wished to do so they could give him a note regarding any specific

416 Peter Skelton QC and Lois Williams

areas of the evidence about which they were concerned, and he would consider the note, which would not be published, when considering rule 43. The jury returned a verdict that the deceased had taken his own life when the balance of his mind was disturbed. The jury also gave a note to the coroner stating that in their opinion the prison service had failed in its duty of care towards the deceased. The family asked that the note should be appended to the inquisition but the coroner refused, although he did make reference to the jury’s concerns when he wrote to the Chief Inspector of Prisons under rule 43. In her judicial review application Mrs Middleton did not question the adequacy of the coroner’s investigation nor did she seek a further inquest. Instead she sought an order that the jury’s findings as set out in their note be publicly recorded. The judge made a declaration that the restrictions on the verdict meant the inquest had failed to meet the procedural obligation of Article 2. The Court of Appeal subsequently held that a jury should be permitted to make findings of systemic, but not individual, neglect in circumstances where the inquest was to be the means by which the state satisfied the procedural requirements of Article 2. By the time the case reached the House of Lords, the key questions were: (1) What, if anything, did the Convention require (by way of verdict, judgment, findings or recommendations) of a properly conducted official investigation into a death involving, or possibly involving, a violation of Article 2? (2) Did the regime for holding inquests established by the Coroners Act 1988 and the Coroners Rules 1984, as hitherto understood and followed in England and Wales, meet those requirements of the Convention? (3) If not, could the current regime governing the conduct of inquests in England and Wales be revised so as to do so, and if so how? Lord Bingham, giving the considered opinion of the Appellate Committee, began by making the following comments: 5. Before turning to consider these questions it should be observed that they are very important questions. Compliance with the substantive obligations referred to above must rank among the highest priorities of a modern democratic state governed by the rule of law. Any violation or potential violation must be treated with great seriousness. In the context of this appeal the questions have a particular importance also. For, as the facts summarised in paras 39–43 below make clear, the appeal concerns an inquest into the suicide, in prison, of a serving prisoner. Unhappily, this is not a rare event. The statistics given in recent publications, (notably ‘Suicide is Everyone’s Concern, A Thematic Review by HM Chief Inspector of Prisons for England and Wales’ (May 1999), the Annual Report of HM Chief Inspector of Prisons for England and Wales 2002–2003, and Evidence given to the House of Lords and House of Commons Joint Committee on Human Rights (HL Paper 12, HC 134, January 2004)) make grim reading. While the suicide rate among the population as a whole is falling, the rate among prisoners is rising. In the 14 years 1990–2003 there were 947 self-inflicted deaths in prison, 177 of which were of detainees aged 21 or under. Currently, almost two people kill themselves in prison each week. Over a third have been convicted of no offence. One in five is a woman (a proportion far in excess of the female prison population). One in five deaths occurs in a prison hospital or segregation unit. 40% of self-inflicted deaths occur within the first month of custody. It must of course be remembered that many of those in prison are vulnerable, inadequate or mentally disturbed; many have drug problems; and imprisonment is inevitably, for some, a very traumatic experience. These statistics, grim though they are, do not of themselves point towards any dereliction of duty on the part of the authorities (which have given much

Deaths in Custody 417 a ttention to the problem) or any individual official. But they do highlight the need for an investigative regime which will not only expose any past violation of the state’s substantive obligations already referred to but also, within the bounds of what is practicable, promote measures to prevent or minimise the risk of future violations. The death of any person involuntarily in the custody of the state, otherwise than from natural causes, can never be other than a ground for concern. This appeal is concerned with the death of a long-term convicted prisoner but the same principles must apply to the death of any person in the custody of the prison service or the police.

He went on to answer the first question, stating: 20. The European court has repeatedly recognised that there are many different ways in which a state may discharge its procedural obligation to investigate under article 2. In England and Wales an inquest is the means by which the state ordinarily discharges that obligation, save where a criminal prosecution intervenes or a public inquiry is ordered into a major accident, usually involving multiple fatalities. To meet the procedural requirement of article 2 an inquest ought ordinarily to culminate in an expression, however brief, of the jury’s conclusion on the disputed factual issues at the heart of the case.

Lord Bingham stated that a strict Jamieson approach would not always meet this requirement and explained what change needed to be made to the regime: 35. Only one change is in our opinion needed: to interpret ‘how’ in section 11(5)(b)(ii) of the Act and rule 36 (1)(b) of the Rules in the broader sense previously rejected, namely as meaning not simply ‘by what means’ but ‘by what means and in what circumstances’. 36. This will not require a change of approach in some cases, where a traditional short form verdict will be quite satisfactory, but it will call for a change of approach in others (paragraphs 30–31 above). In the latter class of case it must be for the coroner, in the exercise of his discretion, to decide how best, in the particular case, to elicit the jury’s conclusion on the central issue or issues. This may be done by inviting a form of verdict expanded beyond those suggested in form 22 of Schedule 4 to the Rules. It may be done, and has (even if very rarely) been done, by inviting a narrative form of verdict in which the jury’s factual conclusions are briefly summarised. It may be done by inviting the jury’s answer to factual questions put by the coroner. If the coroner invites either a narrative verdict or answers to questions, he may find it helpful to direct the jury with reference to some of the matters to which a sheriff will have regard in making his determination under section 6 of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976: where and when the death took place; the cause or causes of such death; the defects in the system which contributed to the death; and any other factors which are relevant to the circumstances of the death. It would be open to parties appearing or represented at the inquest to make submissions to the coroner on the means of eliciting the jury’s factual conclusions and on any questions to be put, but the choice must be that of the coroner and his decision should not be disturbed by the courts unless strong grounds are shown.

Lord Bingham concluded that the verdict, although in accordance with Jamieson, did not satisfy the procedural obligation in Article 2, as the jury had not been permitted to express its conclusion on the ‘crucial’ or ‘central’ facts, namely whether Mr Middleton should have been recognised as a suicide risk and whether appropriate precautions should have been taken to prevent him taking his own life. He stated that this could have been done by a ‘short and simple verdict’, a narrative verdict, or by way of a verdict given in answer to the coroner’s questions.19 19

R (Middleton) v HM Coroner for Western Somerset [2004] UKHL 10, [2004] 2 AC 182, para 45.

418 Peter Skelton QC and Lois Williams

(vii) R (Scholes) v Secretary of State for the Home Department [2006] EWCA Civ 1343, [2006] Inquest LR 180 Keywords: Prisons, suicide, Article 2 The appellant sought to quash a decision of the Secretary of State for the Home Department not to convene a public inquiry into the death of her son Joseph Scholes who was sentenced to two years’ detention for robbery in Stoke Heath Young Offender Institution. At sentencing, references were made to Joseph’s history of self-harm and of suicide threats. On 24 March 2002, Joseph hanged himself in his cell in the health care unit at the young offender institution. At the inquest into Joseph’s death, the jury returned a verdict of accidental death with the inquisition stating ‘accidental death in part contributed because the risk was not properly recognised and appropriate precautions were not taken to prevent it’. The coroner, under rule 43, wrote to the Secretary of State recommending an urgent and comprehensive review of the ‘pre-sentence exercise, the allocation process and the availability and provision of Local Authority Secure Children’s Homes (LASCH)’.20 The coroner felt that such a review should take the form of a public inquiry, which could also include sentencing policy which was outside the scope of the inquest. The Secretary of State refused the request but stated that he had referred Joseph’s case to the new Sentencing Guidelines Council, had asked someone with the necessary expertise to examine the operational issues, and had also requested the Youth Justice Board to take full account of the concerns expressed in the verdict and the coroner’s letter. Joseph’s case was also the subject of parliamentary scrutiny and public debates. The appellant did not dispute the evaluation of the circumstances in which Joseph died. Rather, she argued that the sentence imposed and the allocation process were two matters which had to be investigated in order to comply with Article 2. In the Court of Appeal, Pill LJ (with whom Arden LJ agreed) held that the sentence imposed was lawful. He also agreed that where failures were identified, investigation of the facts did not complete performance of the state’s obligations unless consideration was given to effecting improvements, referring to cases such as Amin, Sacker and Middleton. However, the investigations, assessments and debates were such that the appellant failed to establish that the Secretary of State was in breach of Article 2 by failing to convene a public inquiry. Setting up a public inquiry was not the only way in which the obligation under Article 2 could be discharged in this case. It was not a case in which the respondent had failed to confront the issues which had emerged or failed to give serious consideration to possible improvements. The combination of the inquest and the measures taken had achieved compliance with the Article 2 obligation. In terms of the question of the participation of the family, they were fully involved at the inquest and the appropriate extent of their involvement required in addressing issues of policy was likely to be less than with the investigation of the facts.

20 R (Scholes) v Secretary of State for the Home Department [2006] EWCA Civ 1343, [2006] Inquest LR 180, para 3.

Deaths in Custody 419

(viii) Tarariyeva v Russia (2009) 48 EHRR 26 Keywords: Prisons, medical care, Article 2 The deceased died in a prison hospital in Russia on 4 September 2002. There was compelling independent evidence that prior to his death, he had received inadequate medical treatment in his original correctional facility, in a public hospital, and latterly in the prison hospital. The deceased’s mother, the applicant, complained to the European Court of Human Rights (ECtHR) that her son had died as a result of such treatment and that those responsible had not been identified and punished. The Court held that there had been a violation of Article 2 of the Convention by the Russian authorities for failing to protect the deceased’s life and for failing to determine the cause of his death and to bring those responsible to account. In the course of the judgment, at paragraph 67, the Court made reference to the Third General Report by the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment, and the specific sections addressing ‘Access to a doctor’ and ‘Equivalence of care’ (by which a prison service should provide medical treatment and nursing care comparable to that available in the outside community). 80. … The Court considers, however, that in case of a prisoner returning from hospital with a known history of medical ailments, the authorities are under an obligation to ensure appropriate follow-up care independent of the initiative being taken by the prisoner. Although the applicant’s allegation that her son had to rely on plants for self-treatment cannot be verified, his medical record contains no evidence that he received any follow-up care until his ulcer became perforated on August 20, 2002. Accordingly, the Court finds that at the Khadyzhensk colony Mr Tarariyev was not adequately examined and did not receive medical care appropriate to his state of health. … 88. … The existence of a causal link between the defective medical assistance administered to Mr Tarariyev and his death has been confirmed by the domestic medical experts and not disputed by the respondent Government. 89. Accordingly, the Court finds that there has therefore been a violation of art.2 of the Convention on account of the Russian authorities’ failure to protect Mr Tarariyev’s right to life. 90. The Court also has to examine whether the respondent Government discharged their obligation under art.2 to put at the applicant’s disposal an effective judicial system, enabling liability for the loss of life to be established and any appropriate redress to be obtained. … 102. The Court has made the following findings in respect of the applicant’s complaint that the Russian authorities did not establish the cause of Mr Tarariyev’s death and made those responsible accountable. The criminal investigation was slow and its scope was restricted, leaving out many crucial aspects of the events. The applicant’s right to effective participation in the investigation was not secured. The prosecution had poorly prepared the evidentiary basis for the trial which ended in the acquittal of the suspect. Following the failure of the criminal proceedings the applicant did not have at her disposal an accessible and effective civil-law remedy, either because a civil claim was barred by operation of law or because it had no chances of success in the light of the existing judicial practice.

420 Peter Skelton QC and Lois Williams 103 In these circumstances, the Court finds that there has been a violation of art.2 of the Convention on account of the Russian authorities’ failure to discharge their positive obligation to determine, in an adequate and comprehensive manner, the cause of death of Mr Tarariyev and to bring those responsible to account.

(ix) Tsintsabadze v Georgia, App no 35403/06 (ECtHR, 15 February 2011)21 Keywords: Prisons, Article 2 On 30 September 2005, the applicant’s son, Mr Tsintsabadze was discovered hanged in the storeroom of Khoni prison, where he was serving a three-year sentence. On the same day, the Khoni prison governor informed the head of the Ministry of Justice’s investigation department that Mr Tsintsabadze had committed suicide. On the next day an investigator from the Ministry’s investigation department examined the scene. A forensic examination ordered by the investigator was carried out by an expert from the National Forensics Bureau, an institution under the supervision of the Ministry of Justice, who concluded that death had occurred following mechanical asphyxia by hanging. The applicant’s former husband, the father of Mr Tsintsabadze took the body home after discovering that the forensic examination had taken place. Once at home, the applicant and her former husband noticed that the injuries on their son’s body, including a skull fracture and various bruises on his body, were not consistent with suicide. The applicant’s former husband requested the investigator to arrange for an independent forensic examination of his son’s body, which confirmed the first autopsy’s conclusion concerning the cause of death but also found a lesion caused by a blunt object near the strangulation mark on the neck of the deceased. Witnesses stated that Mr Tsintsabadze had made previous suicide attempts, was hurt that his parents and wife did not visit him—in particular he was worried about the fact that his wife had gone to Turkey—and had not been in conflict with anybody in the prison. The applicant did not believe that her son had committed suicide and informed the investigator that her son had asked her to send money in order to settle his contribution to the prison’s ‘kitty’, an illegal common fund for prisoners. On 29 October 2005, a public prosecution was initiated against a person or persons unknown for having driven Mr Tsintsabadze to commit suicide. On 22 November 2005, the regional prosecutor dismissed the case for lack of evidence. In particular, a letter dated 28 October 2005, found in the morgue on 8 November 2005, was said to prove that Mr Tsintsabadze had committed suicide in the name of love for a woman who had left him and gone to Turkey. This was despite the fact that the letter was dated several weeks after his death. The applicant challenged the dismissal of the case, but her claim was rejected by both the Kutaisi County Court and the Kutaisi Court of Appeal. On 13 December 2005, the applicant’s former husband lodged a criminal complaint against an inmate X who apparently had been trying to extort money from him owed by the applicant’s son to the ‘kitty’. When questioned by the Ministry’s investigation department, X, who had then been transferred to another prison, stated that he had doubts about the suicide theory. In particular he gave an account of how makurebelis (apparently influential prisoners) had previously beaten Mr Tsintsabadze after he failed to repay a debt. He f urther

21

Final Judgment 18 March 2011.

Deaths in Custody 421

stated that on 30 September 2005 he had seen these makurebelis take Mr Tsintsabadze aside for a talk and then a few minutes later he had seen them dragging him, unconscious, towards the storeroom where he was subsequently found hanging. However, X had failed to mention any of this when previously questioned. He stated the reason for this was that he had feared for his life in the Khoni prison and added that his current statements were true and made voluntarily, and that he had been warned about the possibility of incurring liability for perjury and false accusations. In August 2006, the prosecuting authorities, having also questioned the alleged makurebelis, who denied X’s allegations, dismissed the case on the basis that there were no grounds for initiating a public prosecution. They found that X had invented the murder story to defend himself against the extortion charges and again relied upon the apparent suicide letter written by Mr Tsintsabadze. The applicant complained to the ECtHR, under Article 2 of the Convention, that her son had been killed in prison, the homicide being disguised as suicide, and that the authorities had failed to conduct an adequate investigation into the matter. The Government maintained that the applicant’s son had committed suicide in prison, which had not been foreseeable and that the investigation into his death had fully met the requirements under Article 2.22 In its judgment, the Court emphasised that the obligation on the authorities to account for the treatment of an individual in custody became even more stringent where that individual died. The Court also reiterated the general requirements for an effective investigation into an individual’s death under Article 2.23 It noted that it was undisputed that the investigation into the death of the applicant’s son commenced promptly and that a number of urgent and relevant investigative measures were taken. However, it held that there were serious inconsistencies and deficiencies in the manner in which those measures were conducted, from the very beginning of the investigation and throughout its duration.24 The Court noted several shortcomings of the official version of suicide, such as the institutional connection between the investigators of, and those implicated in, the incident which raised legitimate doubts as to the independence of the investigation conducted; the omissions in the various investigative steps; the failure to inform the applicant or her former husband in advance of the investigator’s decision to order a forensic examination of her son’s body; the inconsistency between the two forensic reports; and the lack of credibility of the apparent suicide letter. These omissions and unexplained discrepancies in the conduct of the investigation were sufficient for the Court to conclude that the finding of suicide did not hold up.25 The allegation that the claimant might have been killed and the murder then disguised as suicide was far from unsubstantiated and at least as credible as the official version of suicide. Yet the authorities refused to explore adequately this possibility.26 The Court found that the investigation was not independent, objective or effective and therefore there had been a violation of Article 2 of the Convention.27

22

Tsintsabadze v Georgia, App no 35403/06 (ECtHR, 15 February 2011), paras 62–64. ibid paras 71–76. 24 ibid para 77. 25 ibid paras 78–84. 26 ibid paras 85–93. 27 ibid paras 94–95. 23

422 Peter Skelton QC and Lois Williams

Other Cases R (D) v Secretary of State for the Home Department [2006] EWCA Civ 143, [2006] 3 All ER 946—the Article 2 procedural obligation was engaged in a case of attempted suicide resulting in the near-death of a prisoner. For a full summary, see Chapter 7.

B. The Prisons and Probation Ombudsman (i) Siberry’s Application (2) [2008] NIQB 147, [2009] Inq LR 1 Keywords: Prisons, evidence The deceased, William Davey, was a prisoner at HMP Magilligan who was found dead on 7 October 2005, having apparently suffered an epileptic seizure. The applicant, Dr Hazel Siberry, was a locum GP who had managed the deceased’s epilepsy medication prior to his death. The then Prisoner Ombudsman for Northern Ireland, Brian Coulter, investigated the death and produced a report that was critical of Dr Siberry. Those criticisms were informed by and reliant on the opinions of two independent medical experts, a consultant neurologist (Dr Cooper) and a forensic GP (Dr Lloyd-Jones), who had each produced reports that were appended to the Ombudsman’s report. Prior to the inquest, in a letter dated 27 August 2007 the coroner ruled that he intended to call the Ombudsman to give evidence at the inquest, including evidence of opinion as to the quality of the medical treatment provided by Dr Siberry. The coroner also indicated that he intended to call Dr Cooper and Dr Lloyd-Jones to give evidence. Dr Siberry did not take issue with the proposal to call the two medical experts, or to the Ombudsman being called to give evidence on non-medical matters. But she did object to the coroner allowing the Ombudsman to give evidence about the quality of the medical treatment given to the deceased and to the admission in evidence of those sections of his report that addressed that issue. She therefore initiated judicial review proceedings to stop the coroner from, arguing that (1) ‘issues of fact and findings of fact fall within the exclusive domain of the inquest jury, into which no trespass or intrusion is permissible’28 and (2) calling the Ombudsman amounted to ‘a radical departure from the rules of evidence which is manifestly unfair and unreasonable’.29 McCloskey J, sitting in the High Court of Northern Ireland, found in favour of Dr Siberry on both grounds. His resulting remedy took the form of a declaration to the effect that: 70. … it will be unlawful for the former Prisoner Ombudsman to give evidence at the forthcoming inquest hearings of any of the matters contained in the reports of Dr. Cooper and Dr. Lloyd-Jones and reflected in the corresponding passages and recommendations in the former Prisoner Ombudsman’s report.

28 29

Siberry’s Application (2) [2008] NIQB 147, [2009] Inq LR 1, para 43. ibid para 45.

Deaths in Custody 423

In holding that the coroner’s ruling was Wednesbury unreasonable, the judge stated: 62. Within this framework of legal principle, I consider that the Senior Coroner’s letter dated 27th August 2008 invites the following observations: (a) As both Dr. Cooper and Dr. Lloyd-Jones will be giving evidence to the inquest jury, there is no need to seek to elicit their evidence from any other witness or in any other way: no surrogate is required. (b) Dr. Cooper and Dr. Lloyd-Jones are qualified medical practitioners, possessing expertise in their particular field of medical practice: Mr. Coulter has no such qualifications or expertise. (c) Mr. Coulter’s report makes explicitly clear his dependence on the two medical experts in relation to medical and clinical governance issues: see in particular paragraphs [7], [333] and [442]. (d) If Mr. Coulter’s evidence to the inquest jury trespasses into the territory covered by the two medical experts, he is liable to be questioned by interested parties, giving rise to at least two possible scenarios. The first is that he will be unable to deal with the questions. The second is that he will purport to give evidence which should properly be elicited from the medical experts only. Neither scenario is desirable and neither will facilitate the inquest jury performing its task. (e) On the first of the scenarios mooted above, the imprimatur of Mr. Coulter could possibly add weight to the evidence of the medical experts, in circumstances where Mr. Coulter’s evidence could not be properly tested by questioning. The jury could be improperly influenced in consequence. (f) Alternatively, if the inability of Mr. Coulter to deal properly with medical issues in his evidence is exposed, this could result in the jury failing to attach sufficient weight to the opinions and conclusions of Dr. Cooper and Dr. Lloyd-Jones and might simply create unnecessary (and avoidable) confusion and/or uncertainty. (g) A major plank of the Senior Coroner’s response to reservations of the above kind appears to reside in the contention that appropriate advice and directions can be given by him to the jury. However, mechanisms of this kind may, or may not, have their intended effect. More over, this prompts the questions: If a situation in which warnings and directions to the jury have to be given can properly be avoided, why allow it to materialise? Further, why permit the risk of the jury being improperly influenced or otherwise misled? (h) If Mr Coulter’s report did not exist, this would not inhibit the jury in the performance of their central functions. (i) As already observed in paragraph [38] above, those comments, conclusions and recommendations of Mr. Coulter entailing an adverse reflection on the Applicant are based on two medical reports, neither of which has been subjected to any critical scrutiny and both of which will be challenged in this way at the inquest hearings.

In holding that the ruling was unfair, the judge stated: 68. The Applicant’s second ground of challenge is couched in terms of substantive unfairness, rather than the more familiar complaint of procedural unfairness. It falls to be considered accordingly. The essence of this ground of challenge is that the impugned decision has the potential to impact unfairly on the Applicant. It could result in inappropriate evidence being given by a witness, Mr. Coulter, who could be perceived by the inquest jury as authoritative, persuasive and influential. His imprimatur on evidence relating to medical and clinical matters could result in the jury being improperly influenced, to the detriment of the Applicant. In my opinion, this ground of challenge is made out, for reasons essentially the same as those underpinning my earlier conclusion that the Senior Coroner’s proposal is vitiated by Wednesbury unreasonableness. In short, the Applicant should not be exposed to this avoidable risk of unfairness, absent some compelling imperative.

424 Peter Skelton QC and Lois Williams I find that no such justification exists. In the forum of the forthcoming inquest hearings, the Applicant’s professional standing and reputation are at stake and, in the language of contemporary jargon, the playing field should be a level one for all concerned. I consider that the Applicant has established unfairness, within the confines of the Wednesbury principle.

The judge also added a detailed postscript, at paragraphs 72 to 76, in which he made some useful, if obiter, comments inviting the coroner ‘to voluntarily reconsider the desirability of the inquest jury receiving copies of any part of the Prisoner Ombudsman’s report and to reconsider what evidence, if any, should properly be given by Mr Coulter at the inquest hearings’.30

C. Conclusions (i) R (Sacker) v HM Coroner for West Yorkshire [2004] UKHL 11, [2004] 1 WLR 796 Keywords: Prisons, suicide, conclusions, Article 2 Ms Creamer was remanded in custody for an alleged offence of dishonesty and was sent to HM Prison New Hall. Whilst at court the court custody officer opened a self-harm at risk form F2052SH (since superseded by the ACCT process). On her arrival at the prison, Ms Creamer was sent to the health centre for observation. A locum medical officer entered on the F2052SH that Ms Creamer was not suicidal or thinking of self-harm and referred her back to the residential unit. He did not complete the discharge section of the F2052SH as he was not familiar with the form or the procedures required where one had been opened. Upon her return to the residential unit, once back in her single cell, Ms Creamer was observed every half hour, as her F2025SH had not been closed. When she was checked at 11.30pm, she was found hanging and later pronounced dead in hospital. At the inquest Ms Creamer’s mother argued that the jury should be given the opportunity to add the words ‘contributed to by neglect’ to their verdict but the coroner declined to allow this. The House of Lords considered whether the appellant should have directed the jury that they could add a rider to their verdict to indicate that systemic neglect had contributed to Ms Creamer’s death. The coroner submitted that there were no grounds for concluding that Ms Creamer’s death was caused by a systemic failure. Although the locum medical officer was not familiar with the form, if he had understood the procedure he would have closed it and in fact, had he done so, Ms Creamer would not have been observed at all. Ms Creamer’s mother disputed this assessment arguing that the information in a report commissioned by the Operational Manager for Women’s Prisons contained numerous criticisms of the systems that were in the operation on the night of Ms Creamer’s death and recommendations for their improvement.

30

ibid para 72.

Deaths in Custody 425

The House of Lords emphasised that the case raised a number of other issues of general public importance about the conduct of inquests, especially in the context of suicides in prison, hence the reason for hearing it alongside Middleton. At paragraph 11 they stated: It is hard to fault the attention that has been given to this problem by senior management in the Prison Service and by the Prison Inspectorate. There is a high level of awareness, and much effort has been devoted to improving the system for the prevention of suicides. But every time one occurs in a prison the effectiveness of the system is called into question. So all the facts surrounding every suicide must be thoroughly, impartially and carefully investigated. The purpose of the investigation is to open up the circumstances of the death to public scrutiny. This ensures that those who were at fault will be made accountable for their actions. But it also has a vital part to play in the correction of mistakes and the search for improvements. There must be a rigorous examination in public of the operation at every level of the systems and procedures which are designed to prevent self-harm and to save lives.

The House of Lords held that the coroner’s decision could not be criticised as it was in accordance with the guidance given in Jamieson. However, the appellant did not have an opportunity of inviting the jury to consider the issues in the way in which Lord Bingham had identified in Middleton which deprived the inquest of its ability, when subjecting the events surrounding Ms Creamer’s death to public scrutiny, to address the positive obligation that Article 2 of the Convention placed on the state to take effective operation measures to safeguard life. The House of Lords concluded that the most convenient and appropriate way to remedy this was to order a new inquest.

(ii) R (Lewis) v HM Coroner for the Mid and North Division of Shropshire [2009] EWCA Civ 1403, [2010] 1 WLR 1836 Keywords: Prisons, suicide, conclusions, Article 2 In this case the Court of Appeal considered whether possible, as well as probable, causes of death must be left open to an inquest jury. Sedley LJ opened the leading judgment with the following words: 1. Taking one year with another, well over a hundred prisoners commit suicide every year in the prisons of England and Wales. Among them are many psychiatrically disturbed individuals, some of them under or barely at the age of majority, who ought arguably not to be in prison at all but for whom no other disposal is available. With prisons and young offender institutions overcrowded and under-resourced, and despite repeated efforts by those responsible for the supervision and administration of the prison service, the duty of care owed to such prisoners is too often neglected. 2. What happened to Karl Lewis exemplifies this …

He went on to describe the facts relating to Karl Lewis’s death. On 8 October 2004, just before his eighteenth birthday, Karl was sentenced to six years’ detention for a series of robberies and sent to Stoke Heath Young Offender Institution. His pre-sentence report omitted his history of self-harming with the result that Stoke Heath had no information about this longstanding vulnerability. However, he threatened self-harm at trial and a warning went from the Crown Court probation staff to the young offender institution and a self-harm at risk form was opened. Karl was then screened by a mental health nurse, to whom he disclosed his history of self-harming, but on review by a GP the next day he was discharged and the form closed.

426 Peter Skelton QC and Lois Williams

On the night of 21–22 January 2005, Karl was in a distressed state and attempting selfharm. During the evening a further self-harm form was opened. This required three checks during the night, but he was left in his cell and not moved to the health care wing. Between the checks made by a prison officer, Karl hung himself from a light fitting. The officer saw Karl hanging and had a key but decided not to enter the cell. He had received no suicide prevention or first aid training. Nor was he equipped with a fish-knife, which is designed to enable prisoners to be cut down promptly without further injuring them. Instead he used his radio; but rather than using Code Red (spillage of blood) or Code Brown (signifying the possibility of a loss of life) he used Code Blue, which signified breathing problems. This resulted in assistance taking longer than it should have done to arrive. The evidence indicated that there was no way of knowing whether appropriate and swifter intervention would have saved Karl’s life. Whilst it might it done, it could not be said that it probably would have done. At the inquest the coroner gave the jury a written questionnaire which omitted to ask any questions about the action taken after Karl was found hanging in his cell and therefore the jury were given no opportunity to comment on it. The claimant, Karl’s father, argued that this omission was unlawful because it breached Article 2 ECHR. He submitted that in order for the jury’s verdict to be required on a fact or circumstance, such matters did not have to have been probable causes of or contributors to the death, so long as they were capable of having had such a bearing. Sedley LJ addressed these points in the following paragraphs of his judgment (with which Rimer LJ agreed): 27. Apart from the possibly eloquent silence in Middleton’s case [2004] 2 AC 182, there is nothing in the extensive range of authority which counsel have placed before us which resolves this difference. For my part I see no reason to doubt the propriety of the ruling we have been shown of the City of London coroner in the case of Heather Claire Waite (3 July 2006) that ‘the jury may, in addition to finding the direct or indirect causes or contributions to the death, also find facts relevant to the exercise of the coroner’s power under rule 43’. This is likely to be more useful—as the House of Lords suggested in Middleton’s case [2004] 2 AC 182, para 20—where facts are disputed or uncertain. Indeed it may be in such cases that a finding by verdict is a desirable or even a necessary foundation of any rule 43 report. Here, perhaps unusually, the relevant facts were clear and undisputed. 28. But Mr Owen’s case goes beyond a power to leave possibly but not probably causative matters to the jury: he contends for a duty to do so irrespective of whether the relevant facts are unclear or in dispute. I see the force of his foundational proposition that the circumstances of a death are not limited to its probable causes: they extend as a matter of plain English to the surrounding facts; and while it is not contended for the present that this allows the jury to pronounce on facts, however close in time, that can have had no bearing at all on the death, it can be intelligibly said that, in a jurisdiction which is not concerned with the allocation of blame, potentially causative circumstances can be just as relevant as actually causative ones. 29. All of this speaks strongly in favour of a power to take the jury’s verdict on such questions. But I am unable to find a reason of principle for making it a duty. It would be quite different if rule 43 were not there, backed as it always is by the supervisory power of the High Court to ensure that it is properly operated. There would then be a significant failure (assuming that no other satisfactory mechanism existed) to implement the investigative requirement of article 2. But it seems to me in the end that the present legislative allocation of functions between coroner and jury, properly interpreted and properly implemented, will fulfil the functions which Mr Owen correctly submits are required by the Convention to be fulfilled.

Deaths in Custody 427

D. Deaths Abroad (i) Shafi v HM Senior Coroner for East London [2015] EWHC 2106 (Admin) Keywords: Prisons, jury, pre-inquest review hearing The claimant’s son, Lee Bradley Brown, died in a police station prison in Dubai on 12 April 2012. Following the return of his body, the coroner initiated an investigation into his death. However, this was hampered by the fact that the Dubai authorities did not provide CCTV footage of the scene of the deceased’s death. Further, although the coroner admitted written evidence from three witnesses from Dubai, he did not call any of them to give live evidence at the inquest and did not explain precisely why they were unable to attend. The inquest resulted in an open conclusion with the medical cause of death being described as ‘unascertained’. The claimant subsequently sought orders quashing the inquest and directing a fresh inquest, on the basis of an insufficiency of inquiry by the coroner and an irregularity in proceeding without a jury. The High Court (Bean LJ and the Chief Coroner) held that the coroner had not taken all reasonable steps to secure the attendance of relevant witnesses from Dubai, including the possibility of attendance by telephone, video, or internet link (paragraphs 44–51). It therefore acceded to the claimant’s request for a fresh inquest. The Court was critical of the failure to convene a pre-inquest review hearing, stating: 71. We cannot leave this case without observing that the good management of this case demanded a pre-inquest review hearing (PIRH) to be held. Under Rule 6 of the 2013 Rules a coroner may at any time hold a pre-inquest review during the course of an investigation and before an inquest hearing. One should have been held in this case. 72. The Rules do not prescribe the circumstances in which a PIRH should be held. But a PIRH should usually be held in any case of complexity or difficulty or which raises issues which are best determined openly and fully at a public hearing. Deaths in custody (except where the death is from natural causes and there is no other issue) will always require a PIRH. Deaths overseas are very likely to require one, especially where, as here, there were issues of obtaining evidence from witnesses overseas, disclosure, scope of the inquest, timing of the inquest and whether a jury should be summoned. 73. These were all issues that were best raised, considered and decided in a public PIRH. This was, after all, a case where the family had considerable (and understandable) concerns about the death. The applicant’s solicitors had asked for a PIRH on more than one occasion. There were, in our judgment, good reasons for holding one. 74. It is often better for important outstanding issues to be aired and resolved publicly before the inquest at a PIRH, with a written agenda in advance and brief written decisions afterwards. 75. In this case the issues of evidence and whether to summon a jury were not insignificant. From the family’s point of view there was much to discuss. Suspicions needed to be raised, if not allayed. A hearing would have been better than correspondence. 76. A PIRH would also have given the coroner the opportunity to consider whether it might have been wise in all the circumstances to accede to the family’s request and make one last formal attempt to obtain the CCTV footage.

428 Peter Skelton QC and Lois Williams 77. In the end the inquest commenced with submissions from Mr Lofthouse on the outstanding issues, rather in the form of a PIRH but somewhat late in the day. It seems to us that this aspect of the hearing, taking up (at least in transcript pages) about one third of the hearing, was something of a distraction from the inquest itself. A separate PIRH would have been better. 78. We do not conclude that the failure to hold a PIRH was in itself an irregularity of proceedings but we are of the firm view that one should have been held well in advance of the inquest.

The Court also held that it was not mandatory under section 7(2)(a)–(b) of the coroners and Justice Act 2009 to empanel a jury in the case of a death occurring in a foreign prison: 60. In our view the legislative policy underlying section 7(2)(a)–(b) of the 2009 Act is clear. Where a death occurs in custody or because of the act or omission of a police officer, the actions of agents of the State are under scrutiny; and the verdict at the inquest must be returned by a jury, as a body of people who are and are perceived to be wholly independent of the State. Similar policy reasons underlie section 69(1)(b) of the Senior Courts Act 1981, which preserves (subject to exceptions) the right to jury trial on the application of any party to a civil claim for malicious prosecution or false imprisonment. In neither case is Parliament saying that coroners or judges are unfit to make independent decisions: after all, they now sit alone in most of the cases they try. The policy is, we think, based on perception. But we do not consider that it applies with the same force where it is the agents of a foreign State whose acts or omissions are under scrutiny. 61. Ms Powell also points out that section 48 of the 2009 Act, the interpretation section, states that a person is in ‘state detention’ for the purposes of the Act if he is compulsorily detained by a public authority within the meaning of section 6 of the Human Rights Act 1998. It also defines ‘service police force’ as meaning the Royal Navy Police, Royal Military Police or Royal Air Force Police. These two definitions plainly refer to UK institutions. If Mr Lofthouse is right in his submissions about the circumstances in which section 7 requires a jury for an inquest into a death abroad, it would result in two striking anomalies. A jury would have to be summoned in all cases where the death occurred in prison anywhere in the world, and in all cases of compulsory detention on the grounds of mental illness in the UK only, but not in cases of compulsory detention on grounds of mental illness elsewhere. Similarly a jury would have to be summoned in all cases where the death occurred in civilian police custody anywhere in the world, and in all cases of death in service police custody in the UK, but not in cases of death in service police custody elsewhere. It seems highly improbable that Parliament should have intended to create such anomalies. 62. We do not, therefore, consider that section 7(2)(a) of the 2009 Act requires a coroner to summon a jury in every case of a death in custody abroad.

21 Police Inquests ALASDAIR HENDERSON

I. Overview Some of the most controversial and challenging inquests are those involving the use of police powers, particularly where there has been a fatal shooting, the death takes place in police custody or the deceased has been restrained. The numbers of such deaths each year are not especially high—in 2015 there were 27 in the whole of England and Wales.1 However, the nature of these deaths means that they rightly attract a great deal of attention. Five especially high-profile cases in recent years have resulted in extensive investigation above and beyond the inquest process itself: (a) Jean-Charles de Menezes was shot dead by police in Stockwell underground station on 22 July 2005 after he was misidentified as a suspected terrorist. The jury returned an open verdict in his inquest on 12 December 2008. (b) Ian Tomlinson was making his way home during the G20 demonstrations in the City of London on 1 April 2009 when he was struck by PC Simon Harwood of the Territorial Support Group and later died of internal bleeding. The jury returned a verdict of unlawful killing on 30 May 2011, but PC Harwood was subsequently acquitted of causing his death on 19 July 2012. (c) Raoul Moat was the subject of a six-day manhunt in Northumberland during July 2010 after he shot dead his ex-girlfriend, her new partner and a police officer. Once cornered he shot himself, but there was some confusion over whether he had been shot with Taser guns before or after he turned his shotgun on himself. Following an Independent Police Complaints Commission (IPCC) investigation, the inquest resumed in September 2011 and the jury returned a verdict of suicide. The IPCC cleared the police of any wrongdoing in the use of Tasers, although the Taser firm’s licence was revoked. (d) David Emmanuel, better known by his stage name Smiley Culture, was a singer who died during a police drugs raid at his home on 15 March 2011 after he stabbed himself in the chest. At the inquest the jury returned a verdict of suicide on 2 July 2013. There was some criticism of the police actions both at the inquest and in the IPCC investigation, particularly the level of supervision of Mr Emmanuel during the raid.

1

See www.inquest.org.uk/statistics/deaths-in-police-custody.

430 Alasdair Henderson

(e) Mark Duggan was shot dead by police on 4 August 2011, triggering the riots in Tottenham which then spread throughout various major cities in England over the following days. At the inquest the jury returned a lawful killing verdict on 8 January 2014. On 23 July 2015 the Home Secretary, Theresa May, announced that there would be an independent review of deaths and serious incidents in police custody.2 At the time of writing the details of this review were not yet available, but according to public statements it is intended to have two principal aims: (i) to examine procedures and processes surrounding deaths and serious incidents in police custody; (ii) to identify areas for improvement and develop recommendations. The charity INQUEST is to be asked to take a formal role in the review. The review will presumably build on the existing work of the Independent Advisory Panel on Deaths in Custody,3 which has existed since 2008, although this was not specifically mentioned in the announcement. As a result of the often challenging and high-profile nature of these cases, the disclosure obligations set out in statute and statutory guidance (see below) are particularly wideranging. Key information and documents likely to be of relevance in any case involving the police include: —— —— —— ——

police communications (including radio and computer logs); individual officers’ notebooks; warrants and search documentation; police reports (including not only any subsequent investigation reports but reports compiled before the death); and —— crime investigation records (including records of interviews with the deceased, if applicable) In death in custody cases it will also be important to obtain: —— —— —— ——

the custody records and other police station forms; use of force documentation; the incident management log; and the Forensic Medical Examiner (FME) form

The main questions likely to arise in inquests involving deaths in police custody are: —— Was the risk to life adequately assessed? —— Was lawful (reasonable/necessary) force used? —— Were all reasonable steps taken to prevent suicide? In addition to the forensics and pathology evidence, which may cast significant light on what happened at the scene, other key information and documents likely to be of relevance in police shooting cases include: —— police planning and strategy records (including eg minutes of Gold group4 meetings); —— notes of briefings given to firearms officers and surveillance officers; 2

See www.gov.uk/government/speeches/home-secretary-announces-review-of-deaths-in-policy-custody. See www.iapdeathsincustody.independent.gov.uk. 4 A Gold group is the highest-level command and control body for the emergency services in dealing with a major incident. It is chaired by the local chief constable or their nominated deputy. The Gold group will not be 3

Police Inquests 431

—— —— —— —— —— —— ——

threat and risk assessments; the FA1 form (this is the application for authority to deploy armed officers); decision logs; surveillance logs; local policies on the use of firearms; police national computer print-outs on the deceased, and intelligence reports; and the firearm and ammunition reconciliation form (a record of what shots were fired).

The main question likely to arise in an inquest involving a police shooting is whether the use of force was lawful. The final category of police cases is that of deaths at the hands of a third party where the police had, or could have had, intelligence which may have given rise to a duty under Article 2 to take specific steps to protect the life of the deceased. These cases stem from the leading authority of Osman and are summarised below.

II. Legislation and Other Sources There at least four key pieces of legislation and guidance which will be relevant to most police inquests. The first is the Police Reform Act 2002. This created the IPCC, which is involved in investigating any death resulting from police conduct. The second is section 47 of the Coroners and Justice Act 2009, which ensures that the police and the IPCC will be interested persons at any inquest involving the police. The third and fourth are the Home Office guidance and statutory guidance issued under the 2002 Act, which set out detailed provisions about the disclosure which should be given in a police inquest. The Home Office guidance applies to various categories of inquest, set out in Annex A.

Police Reform Act 2002, Section 21 Under the Police Reform Act 2002 any complaint that police conduct resulted in death or serious injury (a ‘DSI matter’) must be referred to the IPCC.5 DSI matters are defined in section 12 of the Act as any circumstances in which, or as a result of which, a person has died and at the time of death the person had been arrested or was otherwise detained by police or at or before the time of death the person had contact of any kind, whether direct or indirect, with a person serving with the police and there is an indication that the contact may have caused or contributed to the death.

located at the scene of an incident, but rather at a central command post, and is responsible for overall strategy. Gold groups are part of a chain of command—Gold (strategic), Silver (tactical) and Bronze (operational)—and the Gold commander should be in constant contact with the officers at Silver and Bronze levels. A full description of the various roles is set out in Chapter 19 of Inquests: A Practitioner’s Guide published by Legal Action Group. 5

See Police Reform Act 2002, Sch 3, paras 4 and 14A.

432 Alasdair Henderson 21. Duty to provide information for other persons (1) A person has an interest in being kept properly informed about the handling of a complaint, recordable conduct matter6 or DSI matter if— (a) it appears to the Commission or to an appropriate authority that he is a person falling within subsection (2) or (2A); and (b) that person has indicated that he consents to the provision of information to him in accordance with this section and that consent has not been withdrawn. (2) A person falls within this subsection if (in the case of a complaint or recordable conduct matter)— (a) he is a relative of a person whose death is the alleged result from the conduct complained of or to which the recordable conduct matter relates … (2A) A person falls within this subsection if (in the case of a DSI matter)— (a) he is a relative of the person who has died … (3) A person who does not fall within subsection (2) or (2A) has an interest in being kept properly informed about the handling of a complaint, recordable conduct matter or DSI matter if— (a) the Commission or an appropriate authority considers that he has an interest in the handling of the complaint, recordable conduct matter or DSI matter which is sufficient to make it appropriate for information to be provided to him in accordance with this section; and (b) he has indicated that he consents to the provision of information to him in accordance with this section.7 (4) In relation to a complaint, this section confers no rights on the complainant. (5) A person who has an interest in being kept properly informed about the handling of a complaint, conduct matter or DSI matter is referred to in this section as an “interested person”. (6) In any case in which there is an investigation of the complaint, recordable conduct matter or DSI matter in accordance with the provisions of Schedule 3— (a) by the Commission, or (b) under its management, it shall be the duty of the Commission to provide the interested person with all such information as will keep him properly informed, while the investigation is being carried out and subsequently, of all the matters mentioned in subsection (9). (7) In any case in which there is an investigation of the complaint, recordable conduct matter or DSI matter in accordance with the provisions of Schedule 3— (a) by the appropriate authority on its own behalf, or (b) under the supervision of the Commission, it shall be the duty of the appropriate authority to provide the interested person with all such information as will keep him properly informed, while the investigation is being carried out and subsequently, of all the matters mentioned in subsection (9). 6 ‘Recordable conduct matter’ is defined in s 29(1) of the Act, read with Sch 3, paras 10 and 11, as including either allegations of misconduct raised in civil proceedings or allegations which come to the attention of the chief officer or local policing body and appear to have resulted in the death of any person. 7 The IPCC Statutory Guidance 2013 makes clear that this could include coroners (at 130).

Police Inquests 433 (8) Where subsection (7) applies, it shall be the duty of the Commission to give the appropriate authority all such directions as it considers appropriate for securing that that authority complies with its duty under that subsection; and it shall be the duty of the appropriate authority to comply with any direction given to it under this subsection. (9) The matters of which the interested person must be kept properly informed are— (a) the progress of the investigation; (b) any provisional findings of the person carrying out the investigation; (ba) whether the Commission or the appropriate authority has made a determination under paragraph 21A of Schedule 3 [ie where during the investigation of a DSI matter it appears that a criminal or disciplinary offence may have been committed]; (c) whether any report has been submitted under paragraph 22 or 24A of Schedule 3 [this includes action taken as a result of an investigation]; (d) the action (if any) that is taken in respect of the matters dealt with in any such report; and (e) the outcome of any such action. (10) The duties imposed by this section on the Commission and the appropriate authority in relation to any complaint, recordable conduct matter or DSI matter shall be performed in such manner, and shall have effect subject to such exceptions, as may be provided for by regulations made by the Secretary of State. (11) Subsections (6) to (9) of section 20 apply for the purposes of this section as they apply for the purposes of that section. (12) In this section ‘relative’ means a person of a description prescribed in regulations made by the Secretary of State.8

Coroners and Justice Act 2009, Section 47 47. ‘Interested person’ …(2) ‘Interested person’, in relation to a deceased person or an investigation or inquest under this Part into a person’s death, means— … (i) where subsection (3) applies, a chief constable; … (k) where subsection (5) applies, the Independent Police Complaints Commission; (3) This subsection applies where it appears that a person has or may have committed— (a) a homicide offence involving the death of the deceased, or (b) a related offence (other than a service offence). … (5) This subsection applies where the death of the deceased is or has been the subject of an investigation managed or carried out by the Independent Police Complaints Commission in accordance 8 This is defined as spouse, partner, parent or adult child—see Police (Complaints and Misconduct) Regulations 2012, reg 14.

434 Alasdair Henderson with Part 3 of Schedule 3 to the Police Reform Act 2002, including that Part as extended or applied by or under any statutory provision (whenever made).

Home Office Circular 31/2002: Guidance to the Police on Pre-Inquest Disclosure DEATHS IN POLICE CUSTODY: GUIDANCE TO THE POLICE ON PRE- INQUEST DISCLOSURE This note provides revised guidance to Chief Officers about the disclosure of documentary evidence to interested persons in advance of inquest hearings which concern deaths in police custody … Background … 3. Inquests are non-adversarial. There are in law no parties to the matter, and no issues to be litigated between them. However, where a death occurs in controversial circumstances, it can be difficult to avoid an adversarial approach arising, particularly where the deceased was in legal custody. 4. In such circumstances, disclosure of information held by the authorities in advance of the hearing should help to provide reassurance to the family of the deceased and other interested persons that a full and open police investigation has been conducted, and that they and their legal representatives will not be disadvantaged at the inquest. Advance disclosure may also remove a source of friction between interested persons and facilitate concentration on the facts surrounding the death. Experience has shown that pre-hearing disclosure in cases relating to deaths in police custody has been useful in allaying suspicions that matters are being deliberately concealed by the police which might otherwise have distracted attention from the real issues and made it more difficult for inquests to achieve the purpose required in law. 5. Chief Officers are advised, therefore, that there should continue to be as great a degree of openness as possible, and that disclosure of documentary material to interested persons before the inquest hearing should be normal practice in the cases described in paragraph 7 below. In all cases Chief Officers will want to consider whether there are compelling reasons why certain documents, or parts of documents, may not be disclosed. But there should always be a strong presumption in favour of openness. 6. Our understanding from the review is that it is common practice in most forces to keep bereaved families fully informed during the course of the investigation. We consider that this is essential good practice, which should be followed in all cases. It is important to establish contact with the bereaved family as early as possible and keeping them fully informed will help to allay any fears that matters are being concealed by the police, particularly in the more controversial cases. 7. This guidance applies to all cases of deaths of a member of the public during or following contact with the police which the police are required to report to the Home Office. A full definition of such deaths is at Annex A. Extent of disclosure … 10. There are some kinds of material which require particular consideration when pre-inquest disclosure is being arranged: (i) There may in some cases be a question of whether disclosure of certain material might have an impact on possible subsequent proceedings, whether criminal, civil or disciplinary. This

Police Inquests 435 is likely to arise, however, only in exceptional cases. Where the material might have an impact on subsequent criminal proceedings, the matter should be discussed with the Crown Prosecution Service. These reasons would only justify withholding of documents, or parts of documents, where there was a genuine risk, not simply a remote possibility, that disclosure would have a prejudicial effect.9 (ii) There may be material which contains sensitive or personal information about the deceased, or unsubstantiated allegations about the deceased, or other material which may cause concern or distress to the family of the deceased. Such material should be handled with appropriate care and sensitivity, particularly over the way in which such material is disclosed to the family of the deceased. The handling of such material should be discussed with the family or the family’s legal representatives. (iii) Personal information about third parties which is not material to the inquest—for example, the addresses of witnesses—should be deleted from documents to be disclosed. The names of witnesses should not be disclosed where an application to the Coroner for anonymity is being considered. (iv) Where disclosure of material which is not likely to be called in evidence is contemplated, it may be preferable to arrange for interested persons to view the material in advance, rather than the material being copied and provided directly to them, on the grounds that such material is generally not likely to be relevant. (v) Any person who is asked to give a statement during the course of the police investigation of a death in custody should be made aware that his/her statement may be used in the context of an inquest and may therefore be disclosed in accordance with this guidance. That can readily be done by a declaration to that effect at the beginning of the statement. 11. Where any of paragraphs 10(i)–(iv) above apply, Chief Officers should seek the views of the Coroner concerned about how pre-inquest disclosure should best be handled. This would be consistent with the Coroner’s role in controlling the conduct of the inquest. It would also enable account to be taken of any concerns that the Coroner might have regarding possible prejudice to the inquest hearing. However, consulting the Coroner on specific issues should not be used as an opportunity to delay the whole disclosure process. In cases where the Coroner decides to hold a pre-inquest hearing, that may provide an opportunity for the handling of disclosure to be discussed …10 Confidentiality 13. Pre-inquest disclosure to interested persons should be on a confidential basis, solely for the purpose of enabling interested persons to prepare for the inquest. That should be explained to and should be clearly understood by all interested persons when disclosure takes place. 14. Interested persons other than the police, including the family of the deceased, who have in their possession material about the death not otherwise disclosed to the police or the Coroner, should at the same time bring it to the attention of the Coroner and offer to provide similar pre-inquest disclosure to other interested persons. Timing and costs 15. The precise timing of pre-inquest disclosure in a particular case will depend on the particular circumstances. It should be noted that in most cases the custody record and pathologist’s report are

9

See also Coroners (Inquests) Rules 2013, r 15. circular goes on to say ‘It should be emphasised, however, that the Coroner has no power to order or prohibit disclosure of material which is in the possession of the police’. This is no longer the case, following the coming into force of the Coroners and Justice Act 2009, Sch 5 and the Coroners (Inquests) Rules 2013. The Home Office will presumably update the guidance in due course to reflect this. 10 The

436 Alasdair Henderson disclosed prior to full pre-inquest disclosure. There will be cases on which CPS advice is sought on whether criminal proceedings are appropriate. In such cases, in order to avoid prejudice to a criminal trial, disclosure should not take place until either the CPS have advised against a prosecution or any criminal proceedings have finished. Subject to that proviso it is recommended that arrangements should normally be made for pre-inquest disclosure to take place as soon as the Chief Officer is satisfied that the material may be disclosed and in any case not less than 28 days before the date of the inquest proceedings. However, where possible, pre-inquest disclosure should be made as far in advance as possible. It is not good practice to delay disclosure to the 28 day point where there is no good reason to do so. It is not anticipated that pre-inquest disclosure of documentary material will involve substantial additional costs. Indeed pre-inquest disclosure, through saving unnecessary adjournments and avoiding unnecessary suspicion, should actually save time and associated costs in many cases. The police should normally meet the costs of any reproduction of documents, which is necessary for disclosure to interested persons. ANNEX A …. CATEGORY 1 Fatal road traffic incidents involving the police This definition covers all deaths of members of the public resulting from road traffic incidents involving the police, both where the person who dies is in a vehicle and where they are on foot. CATEGORY 2 Fatal shooting incidents involving the police This definition covers circumstances where police fire the fatal shots. CATEGORY 3 Deaths in or following custody This definition covers the deaths of persons who have been arrested or otherwise detained by the police. It also includes deaths occurring whilst a person is being arrested or taken into detention. The death may have taken place on police, private or medical premises, in a public place or in a police or other vehicle. Deaths in the following circumstances are amongst those covered by the definition: —— where the person dies in or on the way to hospital (or some other medical premises) following or during transfer from police detention; —— where the person dies after leaving police detention and there is a link between that detention and the death; —— where the person is being detained for the purposes of exercising a power to stop and search; —— where the death is of a child or young person detained for their own protection; —— where the person is in the care of the police having been detained under the Mental Health Act 1983; —— where the person is in police custody having been arrested by officers from a police force in Scotland exercising their powers of detention under section 137(2) of the Criminal Justice and Public Order Act 1994; … —— where the person is in police custody having been served a notice advising them of their detention under powers contained in the Immigration Act 1971;

Police Inquests 437 —— where the person is a convicted or remanded prisoner held in police cells on behalf of the Prison Service under the Imprisonment (Temporary Provisions) Act 1980. CATEGORY 4 Deaths during or following other types of contact with the police This definition covers circumstances where the person dies during or after some form of contact with the police which did not amount to detention and there is a link between that contact and the death. Examples of deaths which would be covered by the definition are as follows: —— where the person is actively attempting to evade arrest and the death occurs otherwise than as the result of a road traffic incident; —— where there is a siege situation, including where a person shoots himself, or another, whilst police are in attendance; —— where a person is present at a demonstration and is struck by a police baton and subsequently dies. Deaths which follow police contact but which are not linked to that contact would not be covered. For example: —— Those attending police stations as innocent visitors or witnesses who are not suspects; —— Those which occur in a police vehicle which is being used as an ambulance to transport a dying person to hospital quickly, but not under the circumstances described under the category ‘Deaths in police custody’; —— Those where police attend the scene of an incident where a person, who has not been detained, has received fatal injuries. Notes —— The above categorisations cannot be considered completely exhaustive. Cases will still have to be considered individually to decide whether and how they should be recorded; —— The term ‘police’ includes police civilians as well as police officers; —— Deaths involving off-duty police personnel are not included.

NB: This can be accessed in full at www.webarchive.nationalarchives.gov.uk/ 20091212054211/http://statguidance.ipcc.gov.uk/home_office_circular_31.doc.

IPCC Statutory Guidance 2015 Inquest Proceedings 12.64. Where an investigation is carried out in relation to a death of a person and an inquest is likely or has already been opened, this may delay any disciplinary proceedings until after the conclusion of the inquest. Delay is not a necessary consequence of the fact that there is an inquest and appropriate authorities should consider whether it is possible to conclude the disciplinary proceedings since this is likely to be in the interests of all those involved. 12.65. In most cases, an investigation will be completed before the inquest is held. If this is so, then the appropriate authority must make its determinations in respect of the final report as soon as practicable after receiving it. Furthermore, the appropriate authority should conclude any resulting

438 Alasdair Henderson misconduct proceedings or UPP11 resulting from that determination in accordance with the timescale prescribed in the relevant regulations. If proceedings occur before the inquest takes place, the coroner should be informed of the date for any meeting or hearing and its result unless there are good reasons not to provide this information. 12.66. Where an inquest follows a managed investigation into the circumstances of the death, lead responsibility for liaison with the coroner rests with the IPCC. Given that the police produce the final report under IPCC guidance, it may be more appropriate for a member of the police force to attend court should the coroner require someone to attend the hearing to assist with statements, documents and other evidence, or to give evidence about the investigation. 12.67. Where an inquest follows a local or supervised investigation into the circumstances of the death, lead responsibility for liaison with the coroner rests with the investigator.

NB: A full version can be accessed at www.ipcc.gov.uk/page/statutory-guidance.

III. Cases A. Disclosure of Documents (i) Bubbins v United Kingdom (2005) 41 EHRR 24, [2005] Inquest LR 24 Keywords: Police, Article 2, disclosure The deceased was shot by the police at his home after he pointed what appeared to be a gun at them. The family contended that there had been non-disclosure of certain documents to the family, amounting to a breach of Article 2. However, the Court dismissed this argument, considering that there had been sufficient disclosure to allow the family to participate effectively in the inquest: 161. … What is important for the Court is the fact that the family had at its disposal as much information as was commensurate with the defence of its interests in the inquest proceedings, namely clarifying the facts surrounding the death of Michael Fitzgerald and securing the accountability of the police officers involved for any alleged acts and omissions. Having regard to the considerable number of witnesses who gave evidence at the inquest and to the fact that all essential witnesses who could help shed light on the events testified, the Court does not consider that the non-disclosureof, for example, the report of the investigation carried out into Michael Fitzgerald’s death undermined the fact-finding role of the inquest or denied the family an effective participation in the procedure …

B. Unlawful Killing The criminal standard of proof is applicable to a verdict of unlawful killing. Such a verdict will also cause the Criminal Prosecution Service (CPS) to consider whether a prosecution

11

Unsatisfactory Performance Procedure, the procedure set out in the Police (Performance) Regulations 2012.

Police Inquests 439

should be brought (see R (Manning) v DPP [2001] QB 330, [2000] Inquest LR 133, covered in Chapter 25).

(i) R (Douglas-Williams) v HM Coroner for Inner London South District [1998] 1 All ER 344, [2002] Inquest LR 93 Keywords: Accident/misadventure, police, summing up The claimant appealed against the refusal to quash the jury’s verdict of accidental death in the inquest into the death of her brother in police custody. The Court of Appeal dismissed the appeal. It held that in exercising his discretion the strength of the evidence was not the only consideration for the coroner, who was entitled to conclude that, in all the circumstances, it would not be in the interests of justice to leave a particular verdict to the jury. In some cases the effect of directing the jury to consider all possible verdicts might be to bewilder and overburden them. In complex cases it would be good practice for the coroner to prepare a written statement of the matters which the law required in relation to each possible verdict. Any lawyers present at the inquest could then be permitted to make representations on the statement, which would be given to the jury before the coroner began his summing up. This case was appealed to the European Court of Human Rights (ECtHR), which unanimously declared the application inadmissible on 8 January 2002.

(ii) R (Anderson and others) v HM Coroner for Inner North Greater London [2004] EWHC 2729 (Admin), [2004] Inquest LR 155 Keywords: Unlawful killing, police, mental health Roger Sylvester was a 30-year-old man who suffered from bipolar disorder. He took cannabis, which induced a delirium, and was attended on by police as he was naked in the street and behaving violently. The police officers decided he needed to be taken to a place of safety under section 136 of the Mental Health Act 1983. The officers handcuffed and restrained Mr Sylvester and transported him in a van to a nearby hospital. Unfortunately a doctor was not immediately available and he had to be restrained in the hospital for a further 20 minutes. He then suffered a cardiac arrest which put him in a coma, and he eventually died. At the inquest the jury returned a verdict of unlawful killing. The eight police officers who were involved brought a successful application for judicial review of that verdict, which was quashed. Collins J provided helpful guidance on the proper approach to whether the coroner should direct that unlawful killing is a possible verdict: 21. An inquisition cannot identify any individual in a finding of unlawful killing. An inquest is not concerned to attach and is indeed expressly prohibited from attaching civil or criminal liability to anyone in particular. It is concerned only to determine who the deceased was and how, when and where the deceased came by his death. However, a finding of unlawful killing will almost inevitably be regarded as a condemnation of the actions of one or a number of easily identifiable persons. It is presented in the media and regarded generally as a positive finding that that person or those persons between them have been guilty of a criminal offence, in this case, manslaughter. It is for this reason that the law requires that a verdict of unlawful killing be proved to the criminal standard: see R v West London Coroner ex p. Gray [1988] Q.B. 467.

440 Alasdair Henderson 22. It has always been important that any death in custody should be examined with the greatest care and in public. It is now, since the coming into force of the Human Rights Act 1998, essential in order that there should be compliance with the obligations of the state under Article 2 of the European Convention on Human Rights: see R(Middleton) v West London Coroner [2004] 2 A.C. 182. This death occurred before the 1998 Act came into force and the obligations arising under it are not applied retrospectively, but nothing turns on that since the jury did explain why they reached their verdict. However, it must be borne in mind that the safeguards applicable to a trial of anyone charged with a criminal offence are not in place. In Gray’s case, Watkins LJ cited observations of Lord Lane CJ in an unreported case, R v South London Coroner ex p Ruddock (8 July 1982), when he said:— ‘The coroner’s task in a case such as this is a formidable one once again, it should not be forgotten that an inquest is a fact-finding exercise and not a method of apportioning guilt. The procedure and rules of evidence which are suitable for the one are unsuitable for the other. In an inquest it should never be forgotten that there are no parties, there is no indictment, there is no prosecution, there is no defence, there is no trial, simply an attempt to establish facts. It is an inquisitorial process, a process of investigation quite unlike a criminal trial where the prosecution accuses and the accused defends, the judge holding the balance or the ring, whichever metaphor one chooses to use.’ The only gloss which should be applied to this dictum is that the establishment of the facts will now extend to considering not only by what means the deceased met his death but also in what circumstances. The absence of any opening or closing speeches at inquests means that the need for clarity in a summing up becomes all the more important. This is not to say that a summing up should be subjected to a close analysis or that the absence of a particular form of words or indeed of particular directions will necessarily be fatal. But the jury must know clearly what they must find as facts in order to justify any verdict, especially one which decides that a criminal offence has caused the death. The law must always be applied to the facts of a given case. A general direction is usually not sufficient and may be misleading.

(iii) Sharman v HM Coroner v Inner North London, 13 July 2005, [2005] EWCA Civ 967, [2005] Inquest LR 168 Keywords: Unlawful killing, police, summing up Harry Stanley was shot dead on the streets of London on 22 September 1999 by two police officers, who mistakenly thought he was an Irishman carrying a sawn-off shotgun wrapped in a bag when in fact he was a Scotsman and was carrying a coffee table leg which had been repaired by his brother. The jury at the first inquest returned an open verdict on 21 June 2002. This was successfully challenged by way of judicial review by Mr Stanley’s family12 and a second inquest took place before a different coroner in October 2004. At the second inquest the jury returned a verdict of unlawful killing, but this time the police officer who fired the fatal shot challenged the verdict. The High Court (Leveson J) quashed the verdict and reinstated the open verdict from the first inquest. The Court of Appeal upheld that decision, finding (at paragraph 19):

12 See R (Stanley) v HM Coroner for Inner North London [2003] EWHC 1180 (Admin), [2003] Inquest LR 38 in Chapter 7 on Art 2.

Police Inquests 441 [I]t is not enough, and simply does not follow, to assume that the availability of a verdict of unlawful killing, meaning in this case a verdict that beyond reasonable doubt the officers had no belief in an imminent threat to them, follows from the rejection as untruthful of the particular account that they gave. It was still necessary for the jury to look at the matter as a whole, and necessary for the coroner, in deciding whether to leave the matter to them, to look at the whole circumstances to see whether there was a realistic chance of it being possible to establish, beyond reasonable doubt, that the officers did not have the belief alleged.

(iv) Nachova v Bulgaria, 6 July 2005, (2006) 42 EHRR 43 Keywords: Article 2, police This claim was brought by the relatives of two Bulgarians of Roma origin who were killed by a member of the Bulgarian military police after they escaped from prison (where they were serving a sentence for being absent without leave from the army). Following a tip-off about where they were hiding, the commanding officer of the military police unit dispatched four officers to arrest the fugitives. When they saw the officers coming, the two fugitives tried to escape again and were both shot. They were wounded and died on their way to hospital. The Grand Chamber of the European Court of Human Rights held that there had been breaches of Article 2, setting out the principles applicable as follows (emphasis added): 94. As the text of Art.2(2) itself shows, the use of lethal force by police officers may be justified in certain circumstances. However, any use of force must be no more than ‘absolutely necessary’, that is to say be strictly proportionate in the circumstances. In view of the fundamental nature of the right to life, the circumstances in which deprivation of life may be justified must be strictly construed. 95. Accordingly, and with reference to Art.2(2)(b) of the Convention, the legitimate aim of effecting a lawful arrest can only justify putting human life at risk in circumstances of absolute necessity. The Court considers that in principle there can be no such necessity where it is known that the person to be arrested poses no threat to life or limb and is not suspected of having committed a violent offence, even if a failure to use lethal force may result in the opportunity to arrest the fugitive being lost. 96. In addition to setting out the circumstances when deprivation of life may be justified, Art.2 implies a primary duty on the state to secure the right to life by putting in place an appropriate legal and administrative framework defining the limited circumstances in which law enforcement officials may use force and firearms, in the light of the relevant international standards. In line with the above-mentioned principle of strict proportionality inherent in Art.2, the national legal framework regulating arrest operations must make recourse to firearms dependent on a careful assessment of the surrounding circumstances, and, in particular, on an evaluation of the nature of the offence committed by the fugitive and of the threat he or she posed. 97. Furthermore, the national law regulating policing operations must secure a system of adequate and effective safeguards against arbitrariness and abuse of force and even against avoidable accident. In particular, law enforcement agents must be trained to assess whether or not there is an absolute necessity to use firearms not only on the basis of the letter of the relevant regulations but also with due regard to the pre-eminence of respect for human life as a fundamental value.13

13

This case is also dealt with under Chapter 7 on Art 2.

442 Alasdair Henderson

(v) R (Duggan) v Assistant Deputy Coroner for the Northern District of Greater London and Others [2014] EWHC 3343 (Admin), [2014] Inquest LR 232 Keywords: Unlawful killing, police, self-defence, lawful killing This case arose out of the inquest touching the death of Mark Duggan, mentioned above. The police had obtained intelligence that Mr Duggan was part of a violent gang and was transporting a firearm in a taxi on the evening of 4 August 2011. Armed police officers stopped the taxi, and one of them shot Mr Duggan. The officer said he believed Mr Duggan was holding a gun in a sock pointed in his direction. No gun was found on Mr Duggan, although one was found on the ground several metres away. The jury had five questions put to them by the coroner. They found that the police had not done the best they realistically could to gather intelligence, the taxi had been stopped in a way that minimised possible recourse to lethal force, Mr Duggan had had a gun with him immediately before the taxi was stopped, and the gun was not in his possession when he was shot. The jury reached a conclusion of lawful killing, by a majority. The claimant, Mr Duggan’s mother, argued that both domestic and ECtHR law required that the English civil law test for self-defence, namely that a mistaken belief in the existence of an imminent threat had to be a reasonable mistake, applied when considering lawful killing. She also argued that the coroner had failed to make it clear that the jury had to be satisfied on the balance of probabilities that the officer had mistakenly believed in an imminent threat, rather than that he ‘may’ have believed in that threat. The Divisional Court (Leveson PQBD, Burnett J and HHJ Peter Thornton QC (Chief Coroner)) held that the criminal law test for self-defence applies at inquests in relation to a conclusion of lawful killing, not the civil law test. It further held that the use of the word ‘may’ had been designed to ensure that the correct standard of proof was applied to lawful killing and the jury would not have been confused: 31. The law of self-defence in England and Wales is different in the criminal law from the civil law. In the first place, when a defendant in criminal proceedings is being prosecuted for an assault or homicide, it is for the prosecution to prove that the act was not done in lawful self-defence. In the civil law the burden of proving self-defence lies upon the defendant. In the second place, in a criminal court, the prosecution must disprove self-defence to the criminal standard of proof. To establish self-defence in the civil court the defendant must prove it to the civil standard of proof. In the third place there is a difference in the ingredients of self-defence between the two jurisdictions. 32. Self-defence has always comprised two limbs. The second is the same in both jurisdictions and (subject to the discrete issue that arises under the fourth ground of appeal) has not been the subject of argument in this claim. That second limb requires the force used in reaction to any perceived threat to be reasonable in all the circumstances. The first limb is directed towards the question whether the defendant in criminal proceedings had an honest belief at the time he inflicted injury that it was necessary to use force to defend himself. The difference in treatment between the two jurisdictions of this limb of the test for self-defence arises when the belief turns out to be mistaken. The jury’s conclusion in this case provides an example of such mistaken belief. A further striking example is found in R (Sharman) v H.M. Coroner for Inner North London [2005] EWHC 857 Admin where a well-meaning member of the public reported that a man was carrying a sawn-off shotgun in a blue plastic bag. The man, Henry Stanley, was shot by a police officer. The item in the bag turned out to be a table leg. For the purposes of the criminal law the court is concerned with the perception of the defendant alone. The first limb of the test is described as subjective. However, the civil law of tort holds that the defendant must not only honestly believe that he is under threat and

Police Inquests 443 that there is a need to respond, but also that the belief be reasonable. It follows that for the purposes of the law of tort the first limb of the test has an objective element. … 69. Aligning a conclusion of lawful killing with the civil definition would result in the inquisition appearing to determine civil liability. That is prohibited by section (10)(2)(b) of the 2009 Act. However, the objection goes deeper. There is continuity in the statutory treatment of the two verdicts or conclusions which can be traced from the 1887 Act to the 2013 Rules which suggests that in all the statutory references to justifiable and then lawful killing, Parliament has intended such a conclusion to amount to a positive finding that the death did not result from homicide. 70. There is no dispute (nor could there be) that during the period when an inquest played its formal role in committing a person considered guilty of murder or manslaughter for trial, it was not concerned with questions of civil liability … 71. Furthermore, it would to our minds be quite extraordinary for Parliament to have intended that in a single inquest where questions of unlawful and lawful killing very frequently arise in tandem the jury should be given two different definitions of what would appear at first blush to be two sides of the same coin. It would be a recipe for confusion in the jury and mystification in any section of the public interested in its outcome. 72. We conclude that the long held understanding, reflected in Sharman, Bennett and by the editor of Jervis on Coroners, that a conclusion of lawful killing is one which would amount to the crime of murder, manslaughter or infanticide but for the presence of an additional factor which justifies it, is correct. It signifies the jury’s conclusion not only that they are not sure that a homicide was committed but also a conclusion that it probably was not. It says nothing about civil liability. … 82. In considering a complaint that there has been a violation of the procedural obligation under Article 2 (as indeed any violation of the ECHR), the Strasbourg Court is concerned with the overall circumstances of a case and does not proceed in a technical or mechanistic way. The overarching question would be whether the investigation was Convention compliant. Our conclusion is that there is nothing in the complaint relating to the definition of lawful killing which could lead to the conclusion that the procedural obligation under Article 2 was violated. We would add that even were there a deficit in this regard it could be cured without interfering with the well-established meaning of a conclusion of lawful killing. The gap could be filled by asking an additional question directed towards the reasonableness of the honest belief which, on this hypothesis, the officer held.

C. Suicide/Mental Health (i) Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360, [1999] 3 WLR 363 Keywords: Suicide, police Martin Lynch hanged himself on 23 March 1990 in his cell at Kentish Town police station, having been remanded in custody on charges of credit fraud. He had a history of attempting suicide and it was noted on his record by the police that he was a suicide risk. However, a doctor who examined him on arrival at the police station found no evidence of current psychiatric disorder or depression. In a civil claim brought by the administratrix

444 Alasdair Henderson

of his estate, it was held that the police were in breach of a duty of care to take reasonable steps to prevent his suicide, but held that his deliberate act to kill himself amounted to a novus actus interveniens defence or contributory negligence of 100 per cent. The claimant successfully appealed to the Court of Appeal. The House of Lords, upholding the decision of the Court of Appeal, held that a deliberate and informed act of suicide did not negative causation where the defendant was in breach of a specific duty imposed by law to guard against that very act, and made it clear that those entrusted with the custody of prisoners had a duty to take reasonable care for their safety whilst in custody whether they were of sound or unsound mind. In the context of inquests this decision shows the high standard of care which the police are held to in relation to suicide risk.

(ii) Orange v Chief Constable of West Yorkshire [2001] EWCA Civ 611, [2002] QB 347, [2001] Inquest LR 36 Keywords: Suicide, police Paul Orange was arrested on 18 August 1991 for being drunk and disorderly at 5.40am and placed in a police cell insider the door of which was a gate with vertical steel bars and a horizontal crossbar. He was allowed to keep his belt on and was monitored by visits at 30-minute intervals and CCTV. He was not regarded as a suicide risk. Around 9.30am a decision was taken to release him, but the police officer sent to his cell found that he had hanged himself from his belt by the horizontal crossbar. A civil claim under the Law Reform (Miscellaneous Provisions) Act 1934 and Fatal Accidents Act 1976 was brought by his widow. The claim was dismissed, on the ground that there was no duty of care owed to protect Mr Orange from suicide since the police had no reason to believe he was a suicide risk. This decision was upheld on appeal, Lord Phillips MR, Peter Gibson and Latham LJJ holding that the police have a duty to assess whether those in custody are at risk of suicide. Having carried out such a risk assessment and having no reason to believe that the deceased was at risk of suicide the duty of care to prevent suicide did not arise, as the risk was not foreseeable. The police had not been negligent in allowing the deceased to retain his belt. As Latham LJ explained: 43. In my judgment, the increased risk of suicide amongst prisoners can properly be said to give rise to an obligation, within the general duty of care the custodian has for the prisoner’s health and safety, to take reasonable steps to identify whether or not a prisoner presents a suicide risk. The obligation to take reasonable care to prevent a prisoner from taking his own life deliberately only arises where the custodian knows or ought to know that the individual prisoner presents a suicide risk … 44. In coming to this conclusion, we recognise that it is very difficult to determine whether or not a particular person may present a suicide risk. But we do not consider that the fact that it is difficult is a reason for treating suicide as foreseeable in the case of every prisoner. The difficulty in recognising the risk does not make suicide either more or less foreseeable in any given case …

This case illustrates that the assessment of suicide risk is a critical feature of deaths in custody, since it is only if a detained person is considered at risk that the far-reaching requirements of the duty of care to prevent suicide, as exemplified by Reeves, become applicable.

Police Inquests 445

D. The Extent of the Article 2 ‘Osman’ Duty in Police Cases The leading case of Osman set out the test for the application of the operational duty under Article 2, namely that the duty to protect arises where the state knows, or ought to know, of a real and immediate risk to life. The extent of this duty in police cases was discussed in Osman itself.

(i) O sman v United Kingdom (2000) 29 EHRR 245, 5 BHRC 293, [2000] Inquest LR 101 Keywords: Article 2, police The facts of this case are briefly outlined here: for a full summary see Chapter 7. A teacher shot and wounded his former pupil and shot dead his father. There had been a campaign of harassment, vandalism and victimisation preceding the shootings and the family had repeatedly complained to the police. The family brought a claim against the police alleging that they had been negligent: they had failed to act on the warning signs and had not appreciated the serious risk that the teacher posed. The police applied to strike out the claim for lack of cause of action, and won in the Court of Appeal. The applicants then applied to the ECtHR alleging a breach of the operational obligation under Article 2. The ECtHR found against the applicants, but outlined the general obligations under Article 2: 116. For the Court, and bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. Another relevant consideration is the need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects the due process and other guarantees which legitimately place restraints on the scope of their action to investigate crime and bring offenders to justice, including the guarantees contained in Articles 5 and 8 of the Convention. In the opinion of the Court where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of their above-mentioned duty to prevent and suppress offences against the person, it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. The Court does not accept the Government’s view that the failure to perceive the risk to life in the circumstances known at the time or to take preventive measures to avoid that risk must be tantamount to gross negligence or wilful disregard of the duty to protect life. Such a rigid standard must be considered to be incompatible with the requirements of Article 1 of the Convention and the obligations of Contracting States under that Article to secure the practical and effective protection of the rights and freedoms laid down therein, including Article 2. For the Court, and having regard to the nature of the right protected by Article 2, a right fundamental in the scheme of the Convention, it is sufficient for an applicant to show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which

446 Alasdair Henderson they have or ought to have knowledge. This is a question which can only be answered in the light of all the circumstances of any particular case.14

The ECtHR concluded that, on the facts, there was no specific stage where the police knew or ought to have known that there was a real and immediate risk to life. The threats and harassment were not sufficiently serious or targeted to have put the police on notice that the Osman family were in imminent danger. Notwithstanding his erratic behaviour, having regard to the presumption of innocence there was insufficient evidence to convict PagetLewis or to detain him under the Mental Health Act.15 The applicants also complained of a breach of the procedural obligation under Article 2, which was considered by the ECtHR in the context of their complaints under Article 6.16 The Court found a breach of Article 6 because automatic police immunity in negligence actions could not be justified under public interest considerations. The applicants were awarded £10,000 each.

(ii) W, Re an Application for Judicial Review [2004] NIQB 67 This case was a judicial review of the Secretary of State of Northern Ireland’s refusal to provide the applicant with security protection measures. The applicant, who served time for manslaughter, contended that there was a risk to her life and the failure to provide the measures once she left prison breached Article 2. At the time of her release the threat level was assessed by the police as ‘significant’ rising to ‘serious’, the second highest threat level, several months later. The decision was quashed by Weatherup J on the grounds that the decision had been made ‘on a false premise’, namely that only those persons who reached the highest threat level (‘imminent’ attack) were entitled to security measures.17 However, the ‘real and immediate risk’ outlined in the Osman test ‘is not limited to one that is “imminent”’.18 As to Article 2 he noted: 17. … The approach to Article 2 obligations is not based on an applicant reaching a threshold of risk set at different levels in different contexts, but rather about balancing the risk against reasonable measures to reduce the risk. The relevant risk must be real and immediate where a real risk is one that is objectively verified and an immediate risk is one that is present and continuing.

(iii) In re Officer L and others [2007] UKHL 36, [2007] 1 WLR 2135, Inquest LR 214 Keywords: Article 2, police, inquiry, protective measures In 1997 Robert Hamill died from injuries sustained during an affray in Portadown, Northern Ireland. No one was convicted of his murder. His family alleged the attack was sectarian, and that Royal Ulster Constabulary police officers nearby had failed to stop the attack. There were allegations of collusion between the police and the attackers and of obstruction by a

14

Footnotes not included. Osman v United Kingdom (2000) 29 EHRR 245, 5 BHRC 293, [2000] Inquest LR 101, para 121. 16 ibid para 123. 17 W, Re An Application For Judicial Review [2004] NIQB 67, para 26. 18 ibid para 23. 15

Police Inquests 447

police officer. A public inquiry was established under the Inquiries Act 2005. The inquiry called witnesses to give evidence, including those officers who had been near the scene of the attack. Numerous police officers applied for anonymity under Article 2 and under common law, on the grounds that there was a risk to their lives from paramilitary organisations if they were identified. The chairman refused the application. This decision was overturned by the High Court, which was confirmed by the Court of Appeal. On appeal by the inquiry to the House of Lords, the appeal was allowed. It held that the inquiry had properly approached the issue under Article 2 by asking whether the risk to the applicants’ lives would be materially increased if they gave evidence without anonymity. Lord Carswell, who wrote the only judgment, cited the Osman test19 and considered the ‘real and immediate’ test under Article 2. He concluded that the test was not be easily satisfied: 20. Two matters have become clear in the subsequent development of the case law. First, this positive obligation arises only when the risk is “real and immediate”. The wording of this test has been the subject of some critical discussion, but its meaning has been aptly summarised in Northern Ireland by Weatherup J in In re W’s Application [2004] NIQB 67, at [17], where he said that ‘a real risk is one that is objectively verified and an immediate risk is one that is present and continuing’. It is in my opinion clear that the criterion is and should be one that is not readily satisfied: in other words, the threshold is high. There was a suggestion in para 28 of the judgment of the court in R (A) v Lord Saville of Newdigate [2002] 1 WLR 1249, 1261 (also known as the Widgery Soldiers case …) that a lower degree would engage article 2 when the risk is attendant upon some action that an authority is contemplating putting into effect itself … I do not think that this suggestion is well-founded. In my opinion the standard is constant and not variable with the type of act in contemplation, and is not easily reached. Moreover, the requirement that the fear has to be real means that it must be objectively well-founded. … [I]n assessing the existence of a real and immediate risk for the purposes of article 2 the issue does not depend on the subjective concerns of the applicant, but on the reality of the existence of the risk.

(iv) Van Colle and another v Chief Constable of the Hertfordshire Police (Secretary of State for the Home Department and others Intervening) [2008] UKHL 50, [2009] 1 AC 225, [2008] Inquest LR 176 Keywords: Article 2, police, human rights This case was a challenge to the Osman test. The issue was whether the state was liable under Article 2 for the police’s failure to take action against a person known to have threatened violence against a victim who then subsequently killed the victim. In 2000 Daniel Brougham was charged with theft from his previous employer, Giles Van Colle. Van Colle was due to give evidence for the prosecution in Brougham’s trial. In the months preceding the trial, Brougham threated Van Colle and other witnesses, but there were no explicit death threats. He was also suspected of committing arson attacks on witnesses’ property, including that belonging to Van Colle. The police were made aware of some of the witness intimidation incidents, but did not take steps to protect Van Colle.

19 See

In re Officer L and others [2007] UKHL 36, [2007] 1 WLR 2135, Inquest LR 214, para 19.

448 Alasdair Henderson

On 22 November 2000, just before the trial began, Brougham shot dead Van Colle. He was later convicted of his murder. He had prior minor convictions, including one for common assault. A disciplinary tribunal fined the police officer in charge of the investigation for failing to perform his duties conscientiously and diligently in response to the escalating witness intimidation. Van Colle’s parents brought a damages claim against the Chief Constable of the police force for a breach of Articles 2 and 8 ECHR. They alleged that the police had failed to protect their son when the police officer should have known there was a serious risk of harm. At first instance the judge upheld their claim, holding that the state was obliged to protect prosecution witnesses from harm. The threshold test for Article 2 was consequently lower than in other circumstances. The Court of Appeal dismissed the defendant’s appeal, but reduced the damages award. The Chief Constable appealed to the House of Lords. The House of Lords upheld the defendant’s appeal. Lord Bingham summarised the issue as follows: 1. … [I]f the police are alerted to a threat that D may kill or inflict violence on V, and the police take no action to prevent that occurrence, and D does kill or inflict violence on V, may V or his relatives obtain civil redress against the police, and if so, how and in what circumstances?

After laying out the facts he cited the Osman test, and noted: 30. The appellant chief constable, and the Secretary of State, relied on the ruling of my noble and learned friend, Lord Carswell, in In re Officer L [2007] 1 WLR 2135, para 20, that the test of real and immediate risk is one not easily satisfied, the threshold being high, and I would for my part accept that a court should not lightly find that a public authority has violated one of an individual’s fundamental rights or freedoms, thereby ruling, as such a finding necessarily does, that the United Kingdom has violated an important international convention. But I see force in the submission of Mr Owen for the Equality and Human Rights Commission, that the test formulated by the Strasbourg court in Osman and cited on many occasions since is clear and calls for no judicial exegesis. It is moreover clear that the Strasbourg court in Osman, para 116, roundly rejected the submission of Her Majesty’s Government that the failure to perceive the risk to life in the circumstances known at the time or to take preventative measures to avoid that risk must be tantamount to gross negligence or wilful disregard of the duty to protect life. Such a rigid standard would be incompatible with the obligation of member states to secure the practical and effective protection of the right laid down in article 2. That article protected a right fundamental in the scheme of the Convention and it was sufficient for an applicant to show that the authorities did not do all that could reasonably be expected of them to avoid a real and immediate risk to life of which they had or ought to have had knowledge. 31. It is plain from Osman and later cases that article 2 may be invoked where there has been a systemic failure by member states to enact laws or provide procedures reasonably needed to protect the right to life. But the article may also be invoked where, although there has been no systemic failure of that kind, a real and immediate risk to life is demonstrated and individual agents of the state have reprehensibly failed to exercise the powers available to them for the purpose of protecting life … 32. In its formulation of the ‘real and immediate risk’ test the Strasbourg court, in para 116 of its Osman judgment, laid emphasis on what the authorities knew or ought to have known ‘at the time’. This is a crucial part of the test, since where (as here) a tragic killing has occurred it is all too easy to interpret the events which preceded it in the light of that knowledge and not as they appeared

Police Inquests 449 at the time. In the present case the Court of Appeal expressly warned itself against the dangers of hindsight (in para 13 of their judgment) but I do not think that the judge, in the course of her lengthy judgment, did so. Mr Faulks, for the chief constable, was in my view right to submit that the court should endeavour to place itself in the chair of DC Ridley and assess events as they unfolded through his eyes. But the application of the test depends not only on what the authorities knew, but also on what they ought to have known. Thus stupidity, lack of imagination and inertia do not afford an excuse to a national authority which reasonably ought, in the light of what it knew or was told, to make further inquiries or investigations: it is then to be treated as knowing what such further inquiries or investigations would have elicited.

The Court also held that the Osman test was constant and did not vary depending on the person’s status or the circumstances of the case.20 Based on the evidence available at the time, there was insufficient evidence to suspect there was a real and immediate risk to Van Colle’s life.21 Lord Bingham concluded that the Osman test was not met, in particular as the warning signs had been far less obvious than in the Osman case.22

(v) In the Matter of an Application by Officers C, D, H and R [2012] NICA 4 Keywords: Article 2, police, protective measures This case arose from the inquest into the fatal shooting of Patrick Jordan by a police officer in Belfast in 1992. The coroner had granted anonymity to some police officers, but refused it to others. Those officers who had been refused anonymity judicially reviewed the coroner’s decision. They won at first instance, and the deceased’s family appealed. The Northern Irish Court of Appeal upheld the decision, and quashed the coroner’s ruling. Lord Chief Justice Morgan, considering the Osman test, noted that it has a high threshold; however, given the unique context in Northern Ireland, the test is more likely to be satisfied by police officers at risk of attacks by terrorist organisations. 26. In a passage in the opinion of Lord Carswell in Re Officer L he said that the criterion of real and immediate risk described in Osman had a high threshold and was not easily satisfied. To deduce from this passage that there is some high threshold of risk which has to be satisfied would, as Lord Hope said in Van Colle, place a gloss on the test described in Osman and in any event the observation does not help with an understanding of the real and immediate risk test. As the cases reviewed by Girvan LJ demonstrate, if there is a risk to life from a well organised and resourced terrorist group which, objectively verified, is neither fanciful nor negligible that is a real risk for the purpose of the Osman test… 27. What Osman and Van Colle establish, however, is that there are very limited circumstances in which it will be possible to conclude that the authorities knew or ought to have known of a risk to life. In that sense the test has a high threshold and is not easily satisfied. In Northern Ireland there is, however, a particular context. Police officers have been subject to threats, targeting and attacks by

20 See Van Colle and another v Chief Constable of the Hertfordshire Police (Secretary of State for the Home Department and others intervening) [2008] UKHL 50, [2009] 1 AC 225, [2008] Inquest LR 176, paras 33–35. 21 See ibid paras 36–39. 22 See also ibid para 39.

450 Alasdair Henderson well organised and resourced terrorist organisations using lethal force for many years. It is hardly surprising, therefore, that where the threat emanates from such a group the Osman test should be more frequently satisfied.

(vi) Sarjantson v Chief Constable of Humberside [2013] EWCA Civ 1252, [2014] QB 411 Keywords: Article 2, police Mr Sarjantson was attacked by men wielding baseball bats in the early hours of the morning, and sustained a serious head injury. The attackers were subsequently convicted of causing grievous bodily harm, but an internal police investigation criticised a delay of 11 minutes before officers were deployed to the scene. Mr Sarjantson brought a claim against the Chief Constable alleging failure to protect his and his family’s rights under Articles 2 and 3. The claim was struck out at first instance, but the claimants’ appeal allowed on the basis that the scope of the Article 2 positive duty was not limited to circumstances where a real and imminent risk to the life of an identified or identifiable individual was or should have been known. The important questions were whether the police had known or ought to have known of a real and immediate risk to the life of a victim of violence, and whether they had everything reasonable to prevent that risk from materialising. Lord Dyson MR, giving the judgment of the Court of Appeal, explained: 22. The source of the judge’s conclusion in the present case that the Osman duty is owed where there is or ought to be known to be a real and imminent risk to the life of ‘an identified individual or individuals’ is para 116 of the judgment in the Osman case 29 EHRR 245 itself. But this choice of words by the court in the Osman case was heavily influenced by the facts of that case. The question there was whether the police knew or ought to have known that the lives of the Osman family were at real and immediate risk from Mr Paget-Lewis. The individuals whose lives were at risk were ‘identified’. The court did not have to explore the boundaries of the scope of the duty and did not purport to do so in paras 115 and 116 of its judgment. The subsequent jurisprudence to which I have referred shows that the European Court of Human Rights has not limited the scope of the article 2 duty to circumstances where there is or ought to be known a real and imminent risk to the lives of identified or identifiable individuals. 23. Leaving the case law on one side, I can find no reason in principle for so limiting the scope of the duty … Such a limitation would be inconsistent with the idea that the provisions of the Convention should be interpreted and applied in such a way as to make its safeguards practical and effective. 24. Take the facts of the present case. On the judge’s approach, the duty arose (subject to the restrictions and safeguards mentioned by the court in the Osman case) when the police knew or ought to have known that there was a real and imminent risk to the life of the first claimant; but no such duty arose when they knew or ought to have known that there was a real and immediate risk to the lives of unidentified individuals who were in the vicinity of the assailants. But they did know that there were individuals in the vicinity of the street where the youths were causing mayhem. They knew where to find them in order to protect them if it was reasonably necessary to do so. 25. In my view, the distinction drawn by the judge is arbitrary and unprincipled and is unsupported by the Strasbourg jurisprudence. The essential question in a case such as this is whether the police knew or ought to have known that there was a real and immediate risk to the life of the

Police Inquests 451 victim of the violence and whether they did all that could reasonably be expected of them to prevent it from materialising. Where the police are informed about an incident of violent disorder, the Osman duty may arise regardless of whether they know or ought to know the names or identities of actual or potential victims of the criminal activity. It is sufficient that they know or ought to know that there are such victims.

(vii) Michael and others v The Chief Constable of South Wales Police [2015] UKSC 2, [2015] 2 WLR 343 Keywords: Article 2, police On 5 August 2009, at 2.29am, Joanna Michael dialled 999 from her mobile phone. She told the call handler at the Gwent police call centre that her ex-boyfriend was aggressive, he had just turned up at her house and had found her with another man, he had bitten her ear really hard, he then drove the other man home with Ms Michael’s car but, before doing so, told her that he would return to hit her, that he was going to be back ‘any minute literally’ and, according to the recorded transcript of the conversation, that her ex-boyfriend had told her ‘I’m going to drop him home and (inaudible) [fucking kill you]’. Gwent Police graded the call ‘G1’, which required an immediate response. The call handler immediately called South Wales Police and summarised their conversation, but no mention was made of a threat to kill. South Wales Police graded the call ‘G2’, which meant officers should respond within 60 minutes. Ms Michael’s home was five or six minutes from the nearest police station. Ms Michael called 999 again at 2.43am. Following a scream from Ms Michael, the line went dead. South Wales Police were informed immediately and officers arrived at Ms Michael’s address at 2.51am. They found that she had been brutally attacked, stabbed many times and was dead. Her attacker subsequently pleaded guilty to murder and was sentenced to life imprisonment. The IPCC later seriously criticised both police forces for individual and organisational failures. Ms Michael’s family brought a claim against the two police forces for damages in negligence and for breach of Article 2. The police forces sought to obtain summary judgment or strike out the claims, unsuccessfully at first instance. However, the Court of Appeal held there should be summary judgment for the police forces on the negligence claim and that the Article 2 claim should proceed to trial. The Supreme Court (Hale and Kerr JJ SC dissenting) upheld the Court of Appeal decision, affirming that the police do not have a duty of care towards potential victims of crime, but that Article 2 may impose a duty where there is a real and immediate risk to someone’s life. Other Cases McCann v UK (1996) 21 EHRR 97—emphasises that, unless the use of firearms is planned and controlled in a way that minimises as much as possible the risk to life, there will be a breach of Article 2. See Chapter 7 on Article 2. Salman v Turkey (2002) 34 EHRR 17—Article 2 applies not only to intentional killing by police, but also situations where the use of force leads to death as an unintended outcome.

452 Alasdair Henderson

Jordan v United Kingdom (2003) 37 EHRR 2, [2001] Inquest LR 101—a leading case involving the police in which the ECtHR laid down general principles regarding the Article 2 procedural obligations. See Chapter 7. Menson v UK (2003) 37 EHRR CD220, [2003] Inquest LR 146, [2003] Po LR 155—further guidance on the extent of the Article 2 procedural obligation in police cases. See Chapter 7. Ramsahai v The Netherlands (2008) 46 EHRR 43; [2007] Inquest LR 103—Article 2 cases in relation to a police shooting; the ECtHR found there was no substantive breach, but the subsequent investigation was inadequate so there was a breach of the procedural obligation. See Chapter 7.

22 Military Personnel and Civilians in War CAROLINE CROSS

I. Overview This chapter examines the state’s obligation towards its military personnel (Section III.A. and B.). It also briefly considers a state’s duty towards civilians in time of war where death occurs (Section III.C.).

A. Military Personnel The courts refer to ‘the particular characteristics of military life’1 which sets it apart from other professions. These characteristics include the inherent risk of danger, the importance of the chain of command and the relinquishing of ‘almost total control’ to the state.2 However, individual service personnel are entitled to enjoy the same fundamental rights and freedoms as other citizens, including the Article 2 right to life—but not the same standard of protection.3 Consequently, there is a tension between the ‘competing interests of the individual and the community as a whole’, which is ‘no less acute where issues arise about the risk to life of soldiers in the context of military operations conducted on the state’s behalf ’.4 Most developments in this area in recent years, an unhappy consequence of the wars in Afghanistan and Iraq, have been considering where the balance should lie. Inquests into military personnel deaths, or ‘service deaths’,5 occur where service personnel die on active service or in preparation for active service. Plainly, this category does not include cases of civilians killed by service personnel; Chapter 7 on Article 2 examines some

1 Engel and others v The Netherlands (No 1) (1976) 1 EHRR 647, para 54; R (on the application of Smith) v Oxfordshire Assistant Deputy Coroner [2010] UKSC 29, [2011] 1 AC 1, Inquest LR 119 (the ‘Catherine Smith’ case), paras 99–104. 2 Stoyanovi v Bulgaria, App no 42980/04 (ECtHR, 9 November 2010) para 61; Smith v Ministry of Defence [2013] UKSC 41, [2014] AC 52 (the ‘Susan Smith’ case), para 52. 3 Engel (n 1) para 54; Susan Smith (n 2) paras 53 and 71; R (Long) v Secretary of State for Defence [2014] EWHC 2391, para 78 (‘Long (HC)’). 4 Lord Hope in Susan Smith (n 2) para 61. 5 Chief Coroner’s Scheme and Guidance No 7, ‘A Cadre of Coroners for Service Deaths’.

454 Caroline Cross

cases brought against the military for operations that caused civilian deaths; Section III.C. below considers others6 This chapter will examine when Article 2 is engaged in respect of deaths of UK military personnel.7 Deaths of armed forces personnel while on active service do not automatically qualify for an Article 2 inquest.8 Consequently, a ‘case by case approach’ has to be taken.9 Nonetheless it is possible to identify the following principles as emerging from the case law: (1) An Article 2 inquest must be conducted where a military conscript commits suicide. This category of persons is treated in a similar manner to prisoners or detained mental health patients.10 (2) An Article 2 inquest may be required where there is a real possibility that a breach of the substantive obligations under Article 2 has occurred, such as where there appear to be systemic failures (for example where deficiencies in policies or procedures lead to death by hyperthermia or self-harm) or where there is inadequate provision of equipment—provided it is not based on a political procurement decision.11 (3) Article 2 does not apply: (a) In respect of a political decision is taken to go to war. This is not open to judicial scrutiny;12 (b) Where the jurisdictional requirement is not satisfied. This is becoming increasingly rare in the present context because the ambit of the European Convention on Human Rights (ECHR) is extended to territories where the British Army is in effective control.13 (4) Article 2 is unlikely to apply in an inquest where the critical issue is, for example: (a) Operational decisions made on the ground;14 (b) Political decisions, such as procurement decisions based on political judgments;15 (c) Negligent errors of judgment or coordination by individuals resulting in a higher risk of death;16 (d) Public policy considerations, for example those considerations underlying combat immunity;17 (e) Ordinary occupational risks, even where the activity is inherently dangerous.18

6 The case law arising from killings by state agents has contributed substantially to the development of the Art 2 jurisprudence. See eg McCann v United Kingdom (1996) 21 EHRR 97, Jordan v United Kingdom (2003) 37 EHRR 2 and McKerr, In re [2004] UKHL 12, in Chapter 7 on Art 2. 7 There have been a number of interesting military inquests, which have raised specific issues (such as the 2006 Nimrod aircraft deaths regarding the serviceability of the fleet, and the 2003 US/UK friendly fire inquests involving the use of US video footage during the invasion of Iraq). 8 Catherine Smith (n 1) para 84. 9 ibid para 107. 10 Mosendz v Ukraine, App no 52013/08 (ECtHR, 17 January 2013), para 94; Savage v South Essex Partnership NHD Foundation Trust [2008] UKHL 74, [2009] AC 681, [2008] Inquest LR 126, para 34; but see Catherine Smith (n 1) paras 102 and 117. 11 Catherine Smith (n 1) paras 105–06; Susan Smith (n 2) para 63. 12 R (Gentle) v Prime Minister [2008] UKHL 20, [2008] 1 AC 1356, paras 18–19. 13 Catherine Smith (n 1) para 106; Al-Skeini v United Kingdom (2011) 53 EHRR 589, paras 136–37; Susan Smith (n 2) paras 34–38. 14 Susan Smith (n 2) para 64. 15 ibid paras 64–65. 16 Stoyanovi (n 2) para 61. But see Fernandez v Portugal, App no 56080/13 (ECtHR 15 December 2015). 17 Long (n 3) paras 77–87. 18 Stoyanovi (n 2) para 61.

Military Personnel and Civilians in War 455

In weighing up the factors, the courts will take into account the operational choices that must be made in terms of priorities and resources. A wide margin of appreciation is accorded to the state.19 Furthermore, the courts will not impose a disproportionate and unrealistic obligation on the state to investigate itself.20 However, each case turns on its facts, and a number of cases will fall on the ‘middle ground’ between high level decisionmaking and operational decisions taken on the ground.21 Determining whether Article 2 applies to these cases is therefore a difficult matter of judgment.

B. Coroner’s Guidance for Service Deaths There have been a number of highly controversial military inquests in recent years. Some led to the decisions of the higher courts considered below. It seems likely that it was others that prompted the changes considered immediately below. Under section 17 of the Coroners and Justice Act 2009 (CJA 2009) the Chief Coroner must ensure that coroners are suitably trained to carry out service personnel inquests. Consequently, following the commencement of the Act on 25 July 2013 the Chief Coroner produced guidance dealing with service deaths22 and established a specialist cadre of coroners to conduct these particularly complex inquests. The cadre receive training in service death investigations and inquests, and are available to travel to areas where the next of kin live. If there is one death, then the coroner local to where the funeral is held would normally carry out the inquest.23 If there are two or more deaths on active service abroad the investigation and inquest is held in the jurisdiction where the deceased first arrive back in the UK, which is currently to RAF Brize Norton in the Oxfordshire coroner’s area.24 Since 2008 the Ministry of Defence (MoD) have also established the defence inquests unit (DIU) to ‘coordinate and manage all defence related inquests into the deaths of service and MoD personnel who die on, or as a result of injuries sustained while on operations, and those who die as a result of training activity’.25 The DIU also provides assistance to coroners in dealing with the complexities of the military issues.26 Note that the procedure is different in Scotland—see sections 12 and 50 of the CJA 2009 and paragraph 16 of the Guidance No 7.

19 But see Court of Appeal judgment in R(Long) v Secretary of State for Defence [2015] EWCA Civ 770 (‘Long (CA)’), para 13. 20 Osman, para 116; Finogenov v Russia, App nos 18299/03 and 27311/03 (ECtHR, 20 December 2011), 32 BHRC 324, para 213; Susan Smith (n 2) para 61; Giuliani and Gaggio, para 255. 21 Long (CA) (n 19) paras 11–13. 22 See HHJ Thornton, ‘A Cadre of Coroners for Service Deaths’, Scheme and Guidance No 7, 26 July 2013. Available at www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/coroners/guidance/guidance-no7-acadre-of-coroners-for-service-deaths.pdf (1 May 2015). 23 Home Office Circular No 79/1983. See Scheme and Guidance No 7, para 5. 24 Scheme and Guidance No 7, para 12. 25 ibid para 13. 26 ibid para 14.

456 Caroline Cross

II. Legislation and Other Sources Coroners and Justice Act 200927 17. Monitoring of and training for investigations into deaths of service personnel (1) The Chief Coroner must— (a) monitor investigations under this Part into service deaths; (b) secure that coroners conducting such investigations are suitably trained to do so. (2) In this section ‘service death’ means the death of a person who at the time of the death was subject to service law by virtue of section 367 of the Armed Forces Act 2006 (c. 52) and was engaged in— (a) active service, (b) activities carried on in preparation for, or directly in support of, active service, or (c) training carried out in order to improve or maintain the effectiveness of those engaged in active service.

Armed Forces Act 2006 367. Persons subject to service law: regular and reserve forces (1) Every member of the regular forces is subject to service law at all times. (2) Every member of the reserve forces is subject to service law while— (a) in permanent service on call-out under any provision of the Reserve Forces Act 1980 (c. 9) or the Reserve Forces Act 1996 (c. 14) or under any other call-out obligation of an officer; (b) in home defence service on call-out under section 22 of the Reserve Forces Act 1980; (c) in full-time service under a commitment entered into under section 24 of the Reserve Forces Act 1996; (d) undertaking any training or duty (whether or not in pursuance of an obligation); or (e) serving on the permanent staff of a reserve force.

Guidance Scheme and Guidance No 7, ‘A Cadre of Coroners for Service Deaths’, 26 July 2013.

27 See also s 2 for the coroner’s authority to transfer an investigation to another coroner, and s 3 for the Chief Coroner’s authority to direct that a specific coroner undertake the role.

Military Personnel and Civilians in War 457

III. Cases A. The Characteristics of Military Life Military life is characterised by the inherent risk of danger and by discipline.28

(i) Engel and Others v The Netherlands (No 1) (1976) 1 EHRR 647 Keywords: Military personnel The five applicants were Dutch conscripts who had been found guilty of military disciplinary offences. They alleged they had been deprived of their liberty contrary to Article 5 ECHR. The European Court of Human Rights (ECtHR) held that Article 5(1) had indeed been breached in relation to one applicant. The Court noted that: 54. … the Convention applies in principle to members of the armed forces and not only to civilians.

However, … when interpreting and applying the rules of the Convention in the present case, the court must bear in mind the particular characteristics of military life and its effects on the situation of individual members of the armed forces.

The ECtHR also held that the existence of a system of military discipline required that certain restrictions be placed upon the rights and freedoms of the defence forces that would be incapable of being imposed upon civilians.29 Further, the state ‘is competent to organise its own system of military discipline and enjoys in the matter a certain margin of appreciation’.30

(ii) R (Gentle) v Prime Minister [2008] UKHL 20, [2008] 1 AC 1356 Keywords: Article 2, military personnel, inquiry The claimants’ sons were British servicemen who were killed during the conflict in Iraq. They judicially reviewed the defendant’s refusal to hold a public inquiry into the legality of the Government’s decision to go to war in Iraq. They argued that the Government owed a substantive Article 2 duty to the armed forces to take all reasonable steps to ensure the invasion was lawful. The Government had failed to do so, which gave rise to an Article 2 procedural obligation to investigate the lawfulness of the decision to go to war. The claimants accepted that Article 2 did not give rise to an obligation to investigate the lawfulness of the war itself. This issue was outside the remit of the inquests, hence the need for a public inquiry. The defendants alleged that the decision was political, not legal, and therefore not justiciable.

28 All armed forces are subject to the Queen’s Regulations, which is a set of rules and regulations, applicable to all officers, dealing with discipline and personal conduct. 29 Engel (n 1) para 57. 30 ibid para 59.

458 Caroline Cross

The claimants lost at first instance, on appeal and before the House of Lords.31 Lord Hope stated: 18. The first sentence of article 2(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms declares that everyone’s right to life shall be protected by law. But this is not an absolute guarantee that nobody will be exposed by the state to situations where their life is in danger, whatever the circumstances. Those who serve in the emergency services risk their lives on our behalf to protect the lives of others. Those who serve in the armed forces do this in the knowledge that they may be called upon to risk their lives in the defence of their country or its legitimate interests at home or overseas. In Engel v The Netherlands (No 1) (1976) 1 EHRR 647, para 54, the European court said that, when interpreting and applying the rules of the Convention, the court must bear in mind the particular characteristics of military life and its effects on the situation of individual members of the armed forces. This is not to say that those who are employed in the emergency services and the military are entirely outside its protection. That would be contrary to the declaration in article 1 that the rights and freedoms shall be secured to everyone within the jurisdiction of the contracting parties. In Sen v Turkey (Application No 45824/99) (unreported) 8 July 2003, p 8, the court observed that the Convention applies in principle to members of the armed forces and not only to civilians. But the extent of that protection must take account of the characteristics of military life, the nature of the activities that they are required to perform and of the risks that they give rise to. 19. Engel v The Netherlands (No 1) 1 EHRR 647 was a case about the preservation of military discipline, as was Sen v Turkey (Application No 45824/99) 8 July 2003 and Grigoriades v Greece (1997) 27 EHRR 464 where the court said in para 45 that the proper functioning of an army is hardly imaginable without legal rules designed to prevent servicemen from undermining military discipline. But the statement in the Engel case 1 EHRR 647 was widely expressed and it is of general application. The proper functioning of an army in a modern democracy includes requiring those who serve in it to undertake the operations for which they have been recruited, trained and equipped, some of which are inherently dangerous. The jurisprudence which has developed from the decision in Soering v United Kingdom (1989) 11 EHRR 439 about decisions taken in this country to send people abroad to places where they face a real risk of being subjected to torture or to inhuman or degrading treatment or punishment does not apply. The guarantee in the first sentence of article 2(1) is not violated simply by deploying servicemen and women on active service overseas as part of an organised military force which is properly equipped and capable of defending itself, even though the risk of their being killed is inherent in what they are being asked to do.

(iii) Stoyanovi v Bulgaria, App no 42980/04 (ECtHR, 9 November 2010) Keywords: Article 2, military personnel This case underlined the inherent risks associated with military life. The deceased was an experienced paratrooper and parachute instructor with the Ministry of Interior’s Special Anti-Terrorism Squad. During a routine training exercise on 27 May 1998, both the deceased and another experienced paratrooper were killed. The weight of the evidence suggested they had hit their heads on the helicopter’s tyre when they had jumped out of the helicopter, rendering them unconscious. They then fell to earth and died. The deceased’s family alleged that under Article 2 the state had been responsible for

31

See Chapter 7 on Art 2 for the full details of this case.

Military Personnel and Civilians in War 459

the death and that there had been an ineffective investigation. However, the ECtHR found no breach of Article 2. It emphasised the inherent dangers in military life are part of the occupational risks taken by military personnel: 61. Positive obligations will vary therefore in their application depending on the context. It is primarily the task of the domestic systems to investigate the cause of fatal accidents and to establish facts and responsibility. In the present case, which concerns an accident during a military training exercise, the Court notes that while it may indeed be considered that the armed forces’ activities pose a risk to life, this is a situation which differs from those ‘dangerous’ situations of specific threat to life which arise exceptionally from risks posed by violent, unlawful acts of others or man-made or natural hazards. The armed forces, just as doctors in the medical world, routinely engage in activities that potentially could cause harm; it is, in a manner of speaking, part of their essential functioning. Thus, in the present case, parachute training was inherently dangerous but an ordinary part of military duties. Whenever a State undertakes or organises dangerous activities, or authorises them, it must ensure through a system of rules and through sufficient control that the risk is reduced to a reasonable minimum. If nevertheless damage arises, it will only amount to a breach of the State’s positive obligations if it was due to insufficient regulations or insufficient control, but not if the damage was caused through the negligent conduct of an individual or the concatenation of unfortunate events (see, for comparison, Kalender v. Turkey, no. 4314/02, §§ 43–47, 15 December 2009).

As to the responsibility for the death, it was not alleged that there was any deliberate infliction of injury or any foreseeable risk to life. Nor did the applicants argue that there was any defect of the state’s legislative and administrative framework in any general or systemic sense. Therefore, the Court focused almost entirely on the response of the authorities to the incident, and held that the authorities had complied with their Article 2 investigative duties. Other Cases Grigoriades v Greece (1997) 27 EHRR 464—a conscripted army officer was convicted of desertion and insulting the army. The ECtHR found a breach of Article 10 ECHR. It recognised that restrictions on freedom of expression were necessary where there was a real threat to military discipline, but found there was no significant impact on discipline in the circumstances. Şen v Turkey, App no 45824/99 (unreported), 8 July 2003—two military personnel were found in breach of army discipline because of their religious practices and were dismissed. They alleged that their rights under Articles 8, 9 and 10 ECHR were violated. The Court dismissed the claim: the applicants had chosen to accept a system of military discipline that placed limitations on their rights. Catherine Smith—armed forces face the risk of death due to friendly fire as well as in training due to mistakes made while handling weapons.32 Susan Smith—Lord Hope cited all of the above ECHR cases when considering the extent to which Article 2 protection is accorded to military personnel.33

32 33

Catherine Smith (n 1) para 103. Susan Smith (n 2) paras 69–73.

460 Caroline Cross

B. The Application of Article 2 to Service Personnel (1) Automatic Application Where a military conscript commits suicide, there is an obligation on the state to hold an Article 2 compliant investigation into the death. This category of persons is treated as vulnerable individuals, in a similar manner to prisoners or detained mental health patients. While conscription does not exist in the UK, there has been disagreement as to whether the suicide of young, ‘raw recruits’ automatically qualify. There are concerns that there would be difficulties in drawing a line between a raw recruit and other vulnerable soldiers, such as the four young soldiers who died at Deepcut Barracks between 1995 and 2002.34

(i) Mosendz v Ukraine, App no 52013/08 (ECtHR, 17 January 2013) Keywords: Article 2, military personnel A Ukrainian military conscript committed suicide following bullying and mistreatment from his superiors. His mother alleged that the state had failed to protect her son’s life while he was performing military service, and had failed to carry out an effective investigation into his death. The ECtHR unanimously held that Article 2 had been violated on both counts. With regards to the substantive breach of Article 2 it stated: 91. As regards compulsory military service, the Court has held that the primary duty of a State is to put in place rules geared to the level of risk to life or limb that may result not only from the nature of military activities and operations, but also from the human element that comes into play when a State decides to call up ordinary citizens to perform military service. Such rules must require the adoption of practical measures aimed at the effective protection of conscripts against the dangers inherent in military life and appropriate procedures for identifying shortcomings and errors liable to be committed in that regard by those in charge at different levels (see Kılınç and Others v. Turkey, no. 40145/98, § 41, 7 June 2005). 92. Similarly to persons in custody, conscripts are entirely in the hands of the State and any events in the army lie wholly, or in large part, within the exclusive knowledge of the authorities. Therefore, the State is also under an obligation to account for any injuries or deaths occurring in the army (see Beker v. Turkey, no. 27866/03, §§ 41–42, 24 March 2009, with further references).

(ii) Savage v South Essex Partnership NHD Foundation Trust [2008] UKHL 74, [2009] AC 681, [2008] Inquest LR 126 Keywords: Article 2, mental health, conscripts This claim for damages was brought by the daughter of a detained mental health patient who committed suicide. The House of Lords held that the defendant trust had breached its operational Article 2 duty to the deceased, as it had been aware of the real and immediate 34 See in particular Catherine Smith (n 1) paras 102 and 118. For further information on the Deepcut Barracks deaths see the report by Nicholas Blake QC, Deepcut Review: A Review of the Circumstances Surrounding the Deaths of Four Soldiers at Princess Royal Barracks, Deepcut between 1995 and 2002, HC 795, 26 March 2006. At the time of writing a fresh inquest into the death of Cheryl James, one of the soldiers who died at Deepcut Barracks, is taking place after the original verdict was quashed by the High Court.

Military Personnel and Civilians in War 461

risk of suicide and had failed to take reasonable steps to prevent her taking her own life. The case is considered in more detail in Chapter 7 on Article 2. Lord Rodger considered the Article 2 positive duty to protect particular groups of vulnerable persons, including conscripts, against the risk of suicide.35 He compared their situation to that of prisoners, and concluded that in both cases the state must have a legislative and administrative framework in place to prevent suicides. Other Cases Álvarez Ramón v Spain, App no 51192/99 (ECtHR 3 July 2001)—the ECtHR held that there was a duty on the state to hold an independent investigation under Article 2 where a conscript hanged himself and the authorities may have been responsible. Kilinç v Turkey, App no 40145/98 (ECtHR, 7 June 2005)—the state was aware that a conscript suffered from depression, but failed to monitor him appropriately. He subsequently shot himself while undertaking guard duty. The ECtHR found the state liable under Article 2 for failing to have appropriate legislative and administrative frameworks in place. Ataman v Turkey, App no 46252/99 (ECtHR 27 April 2006)—a conscript with known mental health issues shot himself. The ECtHR held that Turkey had breached Article 2 because they had failed to protect conscripts who suffered from psychological conditions and whose lives were at real and immediate risk.

(iii) R (on the application of Smith) v Oxfordshire Assistant Deputy Coroner [2010] UKSC 29, [2011] 1 AC 1, Inquest LR 119 (the ‘Catherine Smith’ case) Keywords: Article 2, military personnel Private Jason Smith died of hyperthermia on a British army base in Iraq in August 2003. The coroner gave a narrative verdict that stated that Private Smith’s death was ‘caused by a serious failure to recognise and take appropriate steps to address the difficulties that he had in adjusting to that climate’. However, his mother judicially reviewed the coroner because he had failed to apply Article 2 correctly and wrongfully refused disclosure. The coroner agreed he had erred on the disclosure issue and quashed his own inquisition. The Secretary of State, who was an interested party, accepted that the deceased had died on a British Army base and therefore was within UK jurisdiction for the purposes of the Human Rights Act 1998 (HRA 1998). However, the parties agreed that guidance was needed for the fresh inquest on several points. Specifically, whether an inquest into the death of a soldier who was within the jurisdiction of the HRA 1998 should comply with the procedural requirements of Article 2. At first instance, Collins J held that Article 2 did indeed apply to all soldiers on active service. Further, as it were grounds to suspect that Private Smith had died due to system failures by the authorities, the procedural obligations under Article 2 applied. The Secretary of State appealed and the Court of Appeal upheld the judge’s decision. The respondent appealed to the Supreme Court. 35 See

Savage (n 10) paras 34–38, and especially paras 39–40.

462 Caroline Cross

The Supreme Court held that the HRA 1998 did not apply to soldiers who were off their army base. (This has since been overruled following the ECtHR Judgment in Al-Skeini and the Supreme Court Judgment in Susan Smith.) The Court dismissed the appeal on the applicability of Article 2. While dismissing the argument that Article 2 applied automatically to all deaths of military personnel on active service, it held that where there was a reasonable suspicion of a systemic failure by the authorities to take appropriate steps to protect life, then Article 2 applied. However, there was some disagreement on whether an Article 2 inquest should be automatic for ‘raw recruits’. Lord Rodger reviewed the case law on persons in custody, and noted that their vulnerable position meant that authorities were required to put in place general systems, and to take operational measures, to prevent self-harm: 117. … Therefore the mere fact that a prisoner has committed suicide indicates that there may have been a failure on the part of the prison authorities to perform their article 2 obligations to prevent those in custody from doing so. 118. I would apply precisely the same reasoning if, say, a raw recruit to the armed forces committed suicide during initial military training. It is obvious—and past experience shows—that recruits, who are usually very young and away from their families and friends for the first time, may be unable to cope with the stresses of military discipline and training. In these circumstances I would regard such recruits as vulnerable individuals for whom the military authorities have undertaken responsibility. So the authorities must have staff trained, and structures in place, to deal with the potential problems which may, quite predictably, arise. Therefore, if a suicide occurred in such circumstances, this would suggest that there might have been a failure on the part of the authorities to discharge their obligation to protect the recruits. There would need to be an independent inquiry—especially since recruits are trained in a closed environment.

However, Lord Hope was concerned with the remit of such an obligation: 102. It is tempting to select examples of cases where the cause of a soldier’s death may be attributed to failures on the part of the state and to conclude that this fact in itself gives rise to the need for a Middleton inquest. But I would resist this temptation. The examples that Lord Rodger gives illustrate the difficulty. He says that he would apply the reasoning as to a prisoner committing suicide to a raw recruit to the armed forces who committed suicide during initial military training in barracks in this country: para 118. We have no evidence that raw recruits to the armed services are in this respect especially vulnerable, but this reference calls to mind the tragic cases of the four young soldiers who died at Deep Cut Barracks between 1995 and 2002 which according to the Ministry of Defence were all cases of suicide. Those soldiers were still in training, but they were not raw recruits. The training they were undergoing at Deep Cut was a course of further training, additional to the initial training which they had received in an Army Training Regiment. Where does one draw the line between the raw recruit and the more seasoned soldier who is still in training? And what about schoolchildren who commit suicide as a result of bullying from which, as they must attend school, there is no escape? Or students who do so because of the pressures they encounter in colleges or universities? To extend the substantive article 2 obligation to volunteers while they are undergoing basic or advanced training would go further than has so far been indicated as necessary by Strasbourg. … 104. … I would reject the analogy with those who are in the custody of the state. The volunteer soldier’s duty to obey orders is not comparable with the state of the detainee who is held against his will in the state’s custody.

Military Personnel and Civilians in War 463

(2) Where Article 2 Does Not Apply (a) Political Decisions Political decisions, such as the decision to go to war, are not within the remit of Article 2 and consequently not within the scope of an inquest.

(i) R (Gentle) v Prime Minister [2008] UKHL 20, [2008] 1 AC 1356 See case summary above. Lord Bingham summarised the claimant’s case as follows: The thrust of the appellants’ case, put very simply, is this. Article 2 of the Convention imposes a duty on member states to protect life. This duty extends to the lives of soldiers. Armed conflict exposes soldiers to the risk of death. Therefore a state should take timely steps to obtain reliable legal advice before committing its troops to armed conflict. Had the UK done this before invading Iraq in March 2003, it would arguably not have invaded. Had it not invaded, Fusilier Gentle and Trooper Clarke would not have been killed.

The House of Lords unanimously dismissed the case. Lord Bingham concluded the claimants had failed to show that the substantive obligation under article 2 had been engaged; consequently, the procedural obligation—which was ‘parasitic upon the substantive right’36—did not exist. 8. It may be significant that article 2 has never been held to apply to the process of deciding on the lawfulness of a resort to arms, despite the number of occasions on which member states have made that decision over the past half century and despite the fact that such a decision almost inevitably exposes military personnel to the risk of fatalities. 9. … I find it impossible to conceive that the proud sovereign states of Europe could ever have contemplated binding themselves legally to establish an independent public enquiry into the process by which a decision might have been made to commit the state’s armed forces to war.

Lady Hale was clear in dismissing the claim: 57. I cannot reasonably foresee that Strasbourg would construct out of article 2 a duty not to send soldiers to fight in an unlawful war. The lawfulness of war is an issue between states, not between individuals or between individuals and the state. … Furthermore, the lawfulness of a war has no direct link with the risk to the soldiers’ lives. Soldiers are just as likely to die in a just cause as in an unjust one.

(b) Jurisdictional Requirement The deaths must have occurred within the jurisdiction of the HRA 1998. However, following Al-Skeini and Susan Smith, it is increasingly rare—if not impossible—for a soldier to find themselves outside the remit of the HRA 1998.37

36

Gentle (n 12) para 6. also Serdar Mohammed v MOD [2014] EWHC 1369 (QB), where the HRA was found to apply to detainees held in UK custody in Afghanistan. UK armed forces were in breach of Afghan law and Article 5 ECHR for detaining a suspected Taliban commander for 106 days, longer than the 96 hours permitted. The Court of Appeal upheld this decision: see Mohammed v MOD [2015] EWCA Civ 843. 37 See

464 Caroline Cross

(3) Factors in Favour of Article 2 Inquest (a) Substantive Breaches—Systemic and Operational Failures States are required to protect against systemic breaches such as inadequate procedures38 or equipment, and operational failures such as bad planning re deployment or inadequate appreciation of risk.

(i) Catherine Smith [2010] UKSC 29, [2011] 1 AC 1, Inquest LR 119 Lord Hope: 105. In my opinion the substantive obligation under article 2 does not extend automatically to all service personnel in a volunteer army while they are on active service at home or within the article 1 jurisdiction overseas. Like Lord Mance JSC, I regard the proposition that all deaths of military personnel on active service require to be investigated by a Middleton-type inquiry as going too far: para 214. As I said in R (Gentle) v Prime Minister [2008] AC 1356, para 19, the guarantee in the first sentence of article 2(1) is not violated simply by deploying servicemen and women on active service overseas as part of an organised military force which is properly equipped and capable of defending itself, even though the risk of their being killed is inherent in what they are being asked to do. But one must not overlook the fact that there have been many cases where the death of service personnel indicates a systemic or operational failing on the part of the state. These may range from a failure to provide them with the equipment which is needed to protect life to mistakes made in the way they were deployed due to bad planning or inadequate appreciation of the risks that had to be faced. These are cases where the investigator should, as article 2 requires, take all reasonable steps to secure the evidence relating to the incident, to find out, if possible, what caused the death, and to identify the defects in the system which brought it about and any other factors that may be relevant: see R (Middleton) v West Somerset Coroner [2004] 2 AC 182, para 36. 106. Private Smith’s death, which occurred on base, seems to me to fall into this category. This was a place over which the armed forces had exclusive control, so the jurisdictional requirement was satisfied. And all the signs are that this was a death which might have been prevented if proper precautions had been taken. There is a sufficient indication of a systemic breach in an area that was within its jurisdiction for the purposes of article 1 to engage the responsibility of the state to carry out an effective investigation into the circumstances. There is something that ought to be inquired into, if only to ensure that tragedies of this or a similar kind do not happen again. I would hold that this is enough to trigger the article 2 procedural obligation so as to require the coroner to conduct a Middleton inquiry in his case.

Lord Hope then concluded by highlighting the problems with a case by case approach: 107. I recognise that the case by case approach which I favour, coupled with the lack of definition in this area of the law, creates a very real problem for the parties as well as for coroners. It risks creating satellite litigation as decisions as to whether a case falls on one side of the boundary are opened up for challenge, resulting in delays and increased costs. The solution to this highly unsatisfactory situation lies in a reform of the law … The balance of advantage until the law is reformed lies, I would suggest, in holding the line at cases where there are grounds for thinking that there was a failure by the state in fulfilling its responsibility to protect life and not extending it to cases which, although involving the element of compulsion that is inherent in service life, are truly outside that category.

38

Catherine Smith (n 1).

Military Personnel and Civilians in War 465

(ii) R (Long) v Secretary of State for Defence [2014] EWHC 2391 (Admin), [2014] HRLR 20; and R (Long) v Secretary of State for Defence [2015] EWCA Civ 770 Keywords: Article 2, military personnel Corporal Paul Long was serving in the royal military police (RMP) when he was murdered, along with five other soldiers, by an armed mob during a visit to a police station in Iraq in June 2003. There were extensive investigations and reports by the army, including a Board of Inquiry (BOI), into the circumstances surrounding the deaths. The BOI report concluded that the main issue was the failure by the RMP chain of command to ensure that the patrol had appropriate forms of communication. There had been a communications order from the battle group commander a month before the killings that all patrols should have a satellite telephone. The patrol did not have a phone as it was erroneously assumed that the order did not apply to RMP patrols. Disciplinary action against individuals in the chain of command was considered, but ultimately no administrative action was taken. At the inquest in 2006 the coroner received substantial documentary evidence from the various army investigations, and also called evidence from numerous witnesses. He concluded that the soldiers had been unlawfully killed. However, he also found that, had the RMP patrol been able to summon help via the satellite phone, it was unlikely that assistance would have arrived in time to prevent the attack. He wrote a Rule 43 report to the Secretary of State for Defence, which specifically recommended improvements in communication by the chain of command. The Secretary of State confirmed this recommendation had already been implemented following the Board of Inquiry. The claimant brought judicial review proceedings, alleging that the failure by the RMP chain of command to ensure compliance with the communications order was a substantive breach of Article 2. Consequently, there was a procedural obligation to carry out an independent investigation into her son’s death. She alleged that the coroner’s investigation had not complied with Article 2 because it had not named responsible individuals within the chain of command. The High Court granted permission but refused the substantive application for judicial review. The complaint was not whether the MoD had failed to provide effective communications, but whether there were specific individuals in the chain of command who had negligently failed to comply with the relevant order. Fulford LJ and Leggatt J held that a substantive breach of Article 2 was not arguable, and so no investigative obligation arose. Further, even if it had arisen, it had been discharged by the BOI and the inquest. Finally, even if it had not been discharged, it would be unreasonable to conduct further investigations over 10 years after the death, as it would be unlikely that any new information would come to light. Specifically, they held that it would not be appropriate to hold individuals in the chain of command responsible: 73. …We reject the notion that art.2 of the Convention gives a member of the armed forces a civil right to be protected by the state against errors, including negligent errors, in the military chain of command in carrying out an order relating to the conduct of operations in theatre where such an error creates or increases the risk of loss of life. 74. In the first place, the possibility of human error including negligent error is inherent in any institution, including the armed services. The state can be expected to take reasonable steps to reduce

466 Caroline Cross the likelihood of such error by providing suitable training for soldiers and by taking a ppropriate remedial action when errors occur. But it would be wholly unrealistic to expect the state to prevent such errors from occurring at all and correspondingly unjustified to impose an obligation on the state to protect the lives of soldiers which is broken whenever such an error is made by an individual soldier which increases or fails to mitigate a risk to the lives of other soldiers. That is so even in the comparatively predictable and controlled context of military training. It is all the more obviously so in the context of deployment on active service. 75. There is, furthermore, no case law of the European Court of Human Rights which supports the claimant’s contention. Indeed, the Strasbourg case law is inconsistent with it. In the Stoyanovi case, mentioned earlier, where a soldier was killed in a parachute training exercise allegedly as a result of negligence in the way the jump was conducted, the European Court held that there was no breach of the state’s positive obligation to protect life if the soldier’s death ‘was caused through the negligent conduct of an individual’. As we have emphasised, if that is the position in relation to a training exercise, the same principle must apply with all the greater force in the far more turbulent and unpredictable conditions experienced on active service. 76. The Court in the Stoyanovi case referred to the similar limit on the scope of art.2 which has been recognised in the field of health care. Article 2 requires hospital authorities to adopt appropriate measures for the protection of patients’ lives. It is clearly established, however, that negligent acts and omissions which result in the death of a patient do not in themselves amount to breach of the state’s obligations under art.2: see the Catherine Smith case at [201]; Savage v South Essex NHS Trust [2009] 1 A.C. 681 … Again, if that is so in an ordinary civilian peacetime context, it must apply with all the greater force to soldiers fighting a war or conducting peacekeeping operations of the kind which the RMP were required carry out in Maysan Province when they were tasked with helping to restore security and rebuild the local police following the invasion and occupation of Iraq in 2003.

However, on appeal, the Court of Appeal (Dyson MR, Lewison and Underhill LLJ) overturned in part the Divisional Court’s ruling. The Master of the Rolls, Lord Dyson held that there was an arguable breach of the substantive Article 2, and therefore an investigative obligation did arise: 27. The question is whether the failure on 24 June 2003 to equip the RMP platoon with iridium phones should be considered as (i) an individual error in disregard of the system or practice required by the Communications Order or (ii) a systematic failure of control or the implementation of a different practice or system of communication. Isolated departures from the Communications Order would not come within the scope of article 2. The Divisional Court said at paras 72 and 73 that the failure to carry iridium phones was the result of human error in the chain of command in carrying out the Communications Order and that errors of this kind do not fall within article 2. The first of these conclusions is well-founded on the evidence and has not been challenged. But I respectfully disagree with the second conclusion. 28. In my view, it is clear from the evidence that the failure of the RMP to comply with the Communications Order was a failure of system or control. It was the result of the introduction (or at least the routine acceptance) of a different practice somewhere in the chain of command. This practice was not occasional or sporadic. It was the normal practice. It is not surprising that the Secretary of State told the families on 17 November 2004 that the failing (i.e. the failure to provide the RMP with iridium phones) was a system failure and more complicated than any one individual’s responsibility. As we shall see, the BOI and the Coroner did not consider that this was a case of individual human error either. The failure was, in effect, the adoption of an unsafe practice or a failure by those in command to ensure that the safe practice embodied in the Communications Order was carried into effect. In a sense, it was the result of human error. But for the reason I have

Military Personnel and Civilians in War 467 already given, it is unhelpful merely to characterise it as the result of human error. The human error was not an isolated failure of an individual to comply with the order issued by the Commander of the Battle Group occupying Maysan Province. It was a system failure by the military authorities to permit soldiers routinely to disregard the order. 29. For all these reasons, I do not agree with the assessment of the Divisional Court that article 2 was not engaged because this was a case of individual human error. I accept the submission of Mr Fordham QC that there are clear indications that this is a case of systemic insufficiency of control and not mere negligent control by an individual. A one-off failure by a patrol leader to pick up an iridium phone on his way out of the base would probably fall into the latter category. But the normal practice that was adopted here, by which an order came to be routinely disregarded, has all the hallmarks of the former category.

However, the Court of Appeal did hold that the combination of the BOI and the inquest were sufficient. The appellant had alleged that there had not been sufficient investigation to identify who in the chain of command was responsible, and wanted them held to account—although she accepted that it was not necessary to name them. The Court of Appeal, though, found that: 55. In short, the investigations of the BOI and the Inquest have revealed why iridium phones were not provided to C Section of the RMP on 24 June 2003, what went wrong and what lessons were to be learnt. In my judgment, article 2 does not require more.

The Court of Appeal also noted that in Stoyanovi the ECtHR did not focus on the lack of independence of the investigative body, but on its impartiality and whether it had the relevant information and expertise: 58. … [T]he Supreme Court in Susan Smith clearly considered Stoyanovi to be an important case. It is striking that in Stoyanovi the court considered that a thorough and impartial investigation by the joint Commission of the Ministries of Defence and the Interior made up for the shortcomings in the investigation by the prosecuting authorities. The fact that the investigation was not conducted by an institutionally independent body seems to have counted for little. What mattered was that it was conducted by an impartial body which had the information and skill to conduct an effective investigation.

(4) Factors Against the Application of Article 2 (a) Operational Decisions Made on the Ground

(i) Smith v Ministry of Defence [2013] UKSC 41, [2014] AC 52 (the ‘Susan Smith’ case) Keywords: Article 2, military personnel Privates Hewitt and Ellis were both killed in separate incidents in 2005–06 when improvised explosive devices (IEDs) exploded by their Snatch Landrovers. Their relatives brought Article 2 proceedings, known as the ‘Snatch Landrover claims’ against the MoD alleging that reasonable measures had not been taken in light of the real and immediate risk to life. In particular, they both alleged that the MoD had failed to provide appropriately armoured vehicles.39 39 See

Susan Smith (n 2) paras 10 and 11.

468 Caroline Cross

In relation to the Article 2 claims, the MoD contended that they should be struck out as the deaths had occurred outside the jurisdiction of the ECHR.40 Further, the MoD did not owe them a duty under Article 2.41 Following the Catherine Smith case42 Owen J struck out the Article 2 claims on the basis that they were not within the jurisdiction of the UK. The Court of Appeal upheld this decision, and so it came before the Supreme Court. After the ECtHR’s judgment in Al-Skeini,43 the Supreme Court allowed the appeal and refused to strike the claims out. It held that the ECHR’s jurisdiction extended to its armed forces when on active service abroad as the UK was exercising authority and control over them. However, the Court was reluctant to apply Article 2 principles to operational decisions taken on the ground. Lord Hope: 64. The extent to which the application of the substantive obligation under article 2 to military operations may be held to be impossible or inappropriate will, however, vary according to the context. Military operations conducted in the face of the enemy are inherently unpredictable. There is a fundamental difference between manoeuvres conducted under controlled conditions in the training area which can be accurately planned for, and what happens when troops are deployed on active service in situations over which they do not have complete control. As Lord Rodger observed in Catherine Smith, para 122, the job of members of the armed forces involves their being deployed in situations where, as they well know, opposing forces will be making a determined effort, and using all their resources, to kill and injure them. The best laid plan rarely survives initial contact with the enemy. The best intelligence cannot predict with complete accuracy how the enemy will behave, or what equipment will be needed to meet the tactics and devices that he may use to achieve his own ends. Speed may be essential if the momentum of an attack is to be maintained or to strengthen a line of defence. But lines of communication may become stretched. Situations may develop where it is simply not possible to provide troops in time with all they need to conduct operations with the minimum of casualties. Things tend to look and feel very different on the battlefield from the way they look on such charts and images as those behind the lines may have available to them. A court should be very slow indeed to question operational decisions made on the ground by commanders, whatever their rank or level of seniority.

(b) Political Decisions Pertaining to Procurement

(i) Susan Smith [2013] UKSC 41, [2014] AC 52 Lord Hope: 65. Then there is the issue of procurement. In A v Secretary of State for the Home Department [2005] 2 AC 68, para 29, Lord Bingham said that the more purely political (in a broad or narrow sense) the question is, the more appropriate it would be for political resolution, and the less likely it is to be an appropriate matter for judicial decision. The allocation of resources to the armed services and as between the different branches of the services, is also a question which is more appropriate for political resolution than it is by a court. Much of the equipment in use by the armed forces today

40

As per Art 1 of the Convention. Susan Smith (n 2) para 13. 42 Catherine Smith (n 1). 43 Al-Skeini (n 13). 41

Military Personnel and Civilians in War 469 is the product of advanced technology, is extremely sophisticated and comes at a very high price. Procurement depends ultimately on the allocation of resources. This may in turn be influenced as much by political judgment as by the judgment of senior commanders in Whitehall as to what they need for the operations they are asked to carry out. It does not follow from the fact that decisions about procurement are taken remote from the battlefield that they will always be appropriate for review by the courts. 66. This, then, is a field of human activity which the law should enter into with great caution …

(c) Negligence by Individuals

(i) Stoyanovi v Bulgaria, App no 42980/04 (ECtHR, 9 November 2010) For the facts see above. In considering the state’s positive obligations under Article 2, the ECtHR held: 61. Positive obligations will vary therefore in their application depending on the context. It is primarily the task of the domestic systems to investigate the cause of fatal accidents and to establish facts and responsibility. In the present case, which concerns an accident during a military training exercise, the Court notes that while it may indeed be considered that the armed forces’ activities pose a risk to life, this is a situation which differs from those ‘dangerous’ situations of specific threat to life which arise exceptionally from risks posed by violent, unlawful acts of others or man-made or natural hazards. The armed forces, just as doctors in the medical world, routinely engage in activities that potentially could cause harm; it is, in a manner of speaking, part of their essential functioning. Thus, in the present case, parachute training was inherently dangerous but an ordinary part of military duties. Whenever a State undertakes or organises dangerous activities, or authorises them, it must ensure through a system of rules and through sufficient control that the risk is reduced to a reasonable minimum. If nevertheless damage arises, it will only amount to a breach of the State’s positive obligations if it was due to insufficient regulations or insufficient control, but not if the damage was caused through the negligent conduct of an individual or the concatenation of unfortunate events44 (see, for comparison, Kalender v. Turkey, no. 4314/02, §§ 43–47, 15 December 2009).

(d) Public Policy Considerations

(i) R (Long) v Secretary of State for Defence [2014] EWHC 2391 (Admin), [2014] HRLR 20 The Divisional Court in Long also considered public policy considerations. This matter was not addressed by the Court of Appeal, and therefore the Divisional Court’s judgment remains relevant to this issue. Combat immunity 77. There are also good reasons of public policy why mistakes made in the course of military operations, even if negligent, should not give rise to rights of action in the civil courts for death or injury.

44 In R (Long) v Secretary of State for Defence [2015] EWCA Civ 770 (Long (CA)), para 15, Dyson MR said of this phrase: ‘I take the rather grandiloquent expression “concatenation of unfortunate events” to mean no more than a combination of events over which the state has no control and for which it cannot be held responsible. Even if the death is caused by only one such event that may be sufficient to take the case outside the scope of article 2.’

470 Caroline Cross Such reasons underpin the doctrine of the common law referred to as combat immunity. That doctrine is best understood as a particular application of the general principle that the common law will not impose a legal duty of care unless it is fair, just and reasonable to do so: see the Susan Smith case at [89], [114] and [163]–[164]. There are some contexts in which the public interest is best served by not imposing such a duty. One such context is that of military operations …

(e) Ordinary Occupational Risks See Stoyanovi, Catherine Smith and Susan Smith in Section III.A. above. (5) Weighing Up of Factors (a) Wide Margin of Appreciation

(i) Finogenov v Russia, App nos 18299/03 and 27311/03 (ECtHR, 20 December 2011), 32 BHRC 324 A margin of appreciation is given to domestic authorities regarding the military and technical aspects of operations. On 23 October 2002 Chechen terrorists took approximately 900 people hostage in a Moscow theatre. The siege ended on 26 October when Russian security forces pumped an unknown narcotic gas into the auditorium and then stormed the theatre. The terrorists were killed during the ensuing battle. However, 125 hostages died, most of them from the effects of the gas. The applicants alleged a violation of Article 2 by the use of force (the storming of the building) and the use of the gas. They also claimed that there had been inadequate planning and conduct of the operation: medics and rescue workers were not told about the gas and therefore were unprepared to provide the necessary prompt medical assistance. Furthermore the applicants alleged that the investigation was ineffective and inadequate because it focused on the hostage-taking as opposed to the authorities’ response to events. The ECtHR declined to hold that the use of force or gas was in breach of Article 2; in conducting such anti-terrorist operations, the Court would accord the state a wide margin of appreciation: 213. Although hostage taking has, sadly, been a widespread phenomenon in recent years, the magnitude of the crisis of 23–26 October 2002 exceeded everything known before and made that situation truly exceptional. The lives of several hundred hostages were at stake, the terrorists were heavily armed, well-trained and devoted to their cause and, with regard to the military aspect of the storming, no specific preliminary measures could have been taken. The hostage-taking came as a surprise for the authorities (see, in contrast, the case of Isayeva v. Russia, no. 57950/00, §§ 180 et seq., 24 February 2005), so the military preparations for the storming had to be made very quickly and in full secrecy. It should be noted that the authorities were not in control of the situation inside the building. In such a situation the Court accepts that difficult and agonising decisions had to be made by the domestic authorities. It is prepared to grant them a margin of appreciation, at least in so far as the military and technical aspects of the situation are concerned, even if now, with hindsight, some of the decisions taken by the authorities may appear open to doubt. … 226. … The Court concludes that there existed a real, serious and immediate risk of mass human losses and that the authorities had every reason to believe that a forced intervention was the ‘lesser evil’

Military Personnel and Civilians in War 471 in the circumstances. Therefore, the authorities’ decision to end the negotiations and storm the building did not in the circumstances run counter to Article 2 of the Convention.

However it held that Article 2 had been violated by the inadequate planning and conduct of the operation.45 In addition, the procedural aspects of Article 2 had been violated by the failure to conduct an effective investigation into the rescue operation, which was found to be ‘manifestly incomplete’.46

(ii) Susan Smith [2013] UKSC 41, [2014] AC 52 Lord Hope cited the Finogenov case in Susan Smith as an example of a situation where the ECtHR ‘were prepared to give a margin of appreciation to the domestic authorities, in so far as military and technical aspects of the situation were concerned’.47 The ECtHR cases also demonstrated a reluctance to impose a disproportionate or unrealistic burden of positive obligations under Article 2 on the state: 76. The guidance which I would draw from the Court’s jurisprudence in this area is that the court must avoid imposing positive obligations on the state in connection with the planning for and conduct of military operations in situations of armed conflict which are unrealistic or disproportionate. But it must give effect to those obligations where it would be reasonable to expect the individual to be afforded the protection of the article. It will be easy to find that allegations are beyond the reach of article 2 if the decisions that were or ought to have been taken about training, procurement or the conduct of operations were at a high level of command and closely linked to the exercise of political judgment and issues of policy. So too if they relate to things done or not done when those who might be thought to be responsible for avoiding the risk of death or injury to others were actively engaged in direct contact with the enemy. But finding whether there is room for claims to be brought in the middle ground, so that the wide margin of appreciation which must be given to the authorities or to those actively engaged in armed conflict is fully recognised without depriving the article of content, is much more difficult. No hard and fast rules can be laid down. It will require the exercise of judgment. This can only be done in the light of the facts of each case.

(iii) R (Long) v Secretary of State for Defence [2015] EWCA Civ 770 This case demonstrates that there are limits to the margin of appreciation accorded to the state. Dyson MR, in considering the reference to the ‘middle ground’ in Susan Smith, held: 12. In deciding whether the circumstances of cases which fall within this middle ground do in fact disclose arguable substantive breaches of article 2 in the military context, it is necessary to have regard to such guidance as is to be found in Susan Smith and in Stoyanovi. Whether a case which falls within the middle ground engages or comes within the scope of article 2 is, as Lord Hope said, ‘much more difficult’ (than deciding whether it falls within the middle ground at all). In saying that (i) no hard and fast rules can be laid down, (ii) it requires the exercise of judgment and (iii) this can only be done in the light of the facts of each case, Lord Hope provided little assistance as to how this difficult exercise is to be performed. 13. The following points can, however, be made. First, ‘the wide margin of appreciation which must be given to the authorities or to those actively engaged in armed conflict’ must be fully recognised, 45 46 47

Finogenov (n 20) para 266. ibid para 277. Susan Smith (n 2) para 75.

472 Caroline Cross but not to the extent of depriving the article of all content (paras 71 and 76 of Lord Hope’s judgment). Allowing a margin of appreciation or discretion involves an exercise of judgment, but it is one with which the courts are now familiar. Secondly, ‘great care’ is needed not to interpret and apply article 2 in a way which imposes an impossible or disproportionate burden on the authorities (paras 72 and 73). Thirdly, a case which involves no more than an allegation of ‘negligent conduct of an individual or the concatenation of unfortunate events’ (see Stoyanovi para 61) will not engage article 2. But a case involving dangerous activities undertaken, organised or authorised by the state and which falls within the middle ground may engage article 2 if it is arguable that the death was caused by insufficient state systems, regulations or control.

(b) No Imposition of a Disproportionate or Unrealistic Burden

(i) Osman v United Kingdom (1998) 29 EHRR 245 For the full facts see the case summary in Chapter 7 on Article 2. 116. For the Court, and bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising.

(ii) Giuliani and Gaggio v Italy, App no 23458/02 (unreported), 24 March 2011 Keywords: Article 2, military personnel The applicants were the relatives of a man who was shot dead during violent protests at the G8 summit in Genoa. They complained, amongst other allegations, that the authorities had used excessive force, contrary to Article 2. The ECtHR dismissed their claim. The Italian authorities, who implemented numerous security measures in advance of the protests, took all reasonable steps to provide safeguards where there was the potential for the use of lethal force: 244. According to the Court’s case-law, Article 2 may imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual … 245. That does not mean, however, that a positive obligation to prevent every possibility of violence can be derived from this provision. The obligation in question must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities, bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources (see Osman, cited above, § 116, and Maiorano and Others v. Italy, no. 28634/06, § 105, 15 December 2009). … 255. It should also be noted that the Government had deployed considerable numbers of personnel to police the event (18,000 officers—see paragraphs 141 and 237 above) and that all the personnel either belonged to specialised units or had received ad hoc training in maintaining order during mass gatherings. M.P. [the officer who shot the deceased], in particular, had taken part in training courses in Velletri … In view of the very large numbers of officers deployed on the ground, they could not all be required to have lengthy experience and/or to have been trained over

Military Personnel and Civilians in War 473 several months or years. To hold otherwise would be to impose a disproportionate and unrealistic obligation on the State. Furthermore, as the Government rightly stressed (see paragraph 233 above), a distinction has to be made between cases where the law-enforcement agencies are dealing with a precise and identifiable target (see, for instance, McCann and Others and Andronicou and Constantinou, both cited above) and those where the issue is the maintenance of order in the face of possible disturbances spread over an area as wide as an entire city, as in the instant case. Only in the first category of cases can all the officers involved be expected to be highly specialised in dealing with the task assigned to them.

C. Civilians in Armed Conflict In situations of armed conflict, states owe Article 2 duties not only to their military personnel, but also to civilians: states are under a duty to protect them from military operations. However, a margin of appreciation is accorded to the authorities in relation to military and technical aspects of an operation. The courts are reluctant to impose too onerous an obligation on a state to investigate itself.

(i) Isayeva v Russia (57950/00) (2005) 41 EHRR 38 Keywords: Article 2, military personnel This case underlined the state’s duty to protect civilians at risk from military operations. During the war in Chechnya, the Russian military launched an offensive on a village in which Chechen rebel fighters had taken refuge. The Chechen applicant was a victim of indiscriminate bombing by the Russian military as she tried to flee from the village. Her son and three nieces were among the many civilian casualties. She alleged that the planning control and execution of the operation had violated Article 2 as the use of force was neither strictly necessary nor proportionate. The Russian Government claimed that the attack was a legitimate and necessary response to the resistance of the Chechen rebel fighters, who were an illegal armed group. The villagers had been warned about the ensuing assault and had been told to leave the village. The ECtHR held that a state’s responsibility under Article 2 may be engaged where the state authorities failed ‘to take all feasible precautions in the choice of means and methods of a security operation mounted against an opposing group with a view to avoiding and, in any event, minimising, incidental loss of civilian life’.48 The ECtHR found unanimously that there had been a breach of Article 2. While accepting that the operation in the village was pursuing a legitimate aim, the Court concluded it was not planned and executed with the requisite care for the lives of the civilian population and consequently amounted to a breach of Article 2. The Court concluded that the military had sufficient time to either prevent the fighters from entering the village or to evacuate the civilians. However, there was no evidence that any evacuation had been planned. Further, the type of weapons used, namely bombs and missiles, were indiscriminate. 89. The Court regards it as evident that when the military considered the deployment of aviation equipped with heavy combat weapons within the boundaries of a populated area, they also should 48

Isayeva v Russia (57950/00) (2005) 41 EHRR 38, para 176.

474 Caroline Cross have considered the dangers that such methods invariably entail. There is however no evidence to conclude that such considerations played a significant place in the planning. … There is no evidence that at the planning stage of the operation any serious calculations were made about the evacuation of civilians, such as ensuring that they were informed of the attack beforehand, how long such an evacuation would take, what routes evacuees were supposed to take, what kind of precautions were in place to ensure safety, what steps were to be taken to assist the vulnerable and infirm, etc. … 190. Once the fighters’ presence and significant number had become apparent to the authorities, the operation’s commanders proceeded with the variant of the plan which involved a bomb and missile strike at Katyr-Yurt … 191. The Court considers that using this kind of weapon in a populated area, outside wartime and without prior evacuation of the civilians, is impossible to reconcile with the degree of caution expected from a law enforcement body in a democratic society. No martial law and no state of emergency has been declared in Chechnya, and no derogation has been made under Art.15 of the Convention. The operation in question therefore has to be judged against a normal legal background. Even when faced with a situation where, as the Government submit, the population of the village had been held hostage by a large group of well-equipped and well-trained fighters, the primary aim of the operation should be to protect lives from unlawful violence. The massive use of indiscriminate weapons stands in flagrant contrast with this aim and cannot be considered compatible with the standard of care prerequisite to an operation of this kind involving the use of lethal force by state agents.

Further, the ECtHR also found that the authorities violated the procedural obligation under Article 2 by failing to carry out an effective investigation into the circumstances surrounding the assault on the village.49 Other Cases Finogenov v Russia, App nos 18299/03 and 27311/03 (ECtHR, 20 December 2011), 32 BHRC 324—see above, in particular paragraph 213 on the margin of appreciation. R (Mousa) v Secretary of State for Defence [2013] EWHC 1412 (Admin)—this was one of a number of cases brought by Iraqi claimants. They alleged that, whilst in Iraq, the British Armed Forces had either killed their relatives or had mistreated the claimants in breach of Articles 2 and 3 ECHR respectively. Following a previous judicial review,50 the Secretary of State for Defence established the Iraq Historic Allegations Team (IHAT) in order to comply with the investigative obligations under those Articles. However, in this case the claimants argued that the IHAT was insufficiently independent and that its remit was too narrow. They sought a full public inquiry to investigate all allegations. The High Court held that the IHAT was sufficiently independent for the purposes of Article 2, but that in its current form it was failing to discharge its Article 2 investigative duties.51 Sir John Thomas and Silber J recommended that a case-by-case approach, based on coroners’ inquests, be adopted.52 49

See ibid paras 202ff. R (Mousa) v Secretary of State for Defence [2011] EWCA Civ 1334. 51 Paras 177–96. 52 Paras 211–24. 50

23 Inquests Involving the Intelligence Services and Agencies SIR NEIL GARNHAM

I. Overview Inquest law makes precious little formal allowance for the interests of the intelligence services and agencies. In large measure, the law and practice described elsewhere in this book applies with the same vigour to these bodies as it does to anyone else. So, for example, in March 2012 the inquest into the death of Gareth Williams, the GCHQ employee seconded to MI6 whose body was found in a holdall at his home, was conducted substantially in the way in which any other inquest into an apparently unnatural death would be. The principal difficulty in the conduct of inquests involving the scrutiny of the security services concerns the use and management of sensitive material. For these purposes distinctions can be drawn between three classes of sensitive evidence: (i) material which engages national security but can be disclosed to the interested persons, albeit not to the public at large; (ii) material in respect of which a claim for public interest immunity (PII) is made and will need to be determined; and (iii) material to which the Regulation of Investigatory Powers Act 2000 (RIPA) applies. The challenge arises out of the fact that, unlike statutory inquires (in respect of which see Chapter 16) there exists no machinery by which evidence can be received by a coroner in the absence of interested persons. The only reference to ‘national security’ in the Coroners and Justice Act 2009 (CJA) is in section 45(3), which permits the making of rules which confer on a senior coroner the power to exclude specified persons from an inquest, or part of an inquest, if the coroner is of the opinion that the interests of national security so require. The rule in question, rule 11(4), permits a coroner to direct that the ‘public’ be excluded from an inquest hearing, or any part of an inquest hearing, if he or she considers it would be in the interests of national security to do so. Considering a similar expression in rule 17 of the 1984 Cornoner’s Rules, the Divisional Court ruled in R (Secretary of State for the Home Department) v Inner West London Assistant Deputy Coroner1 (the 7/7 bombings inquest case) that ‘the public’ did not

1 R (Secretary of State for the Home Department) v Inner West London Assistant Deputy Coroner [2011] EWHC 3098, [2011] 1 WLR 2564.

476 Sir Neil Garnham

include properly interested persons or their legal representatives, and a coroner therefore had no power to exclude them. The courts are alive, however, to the fact that the intelligence services and agencies have statutory functions to preserve and protect national security. Chapter 13 of this book deals with applications for anonymity, protective measures and public interest immunity, all of which may be relevant in cases of this type. However, the peculiar challenges of cases involving the intelligence services and agencies has led to the development of curious structures and devices aimed at accommodating the twin objectives of permitting the greatest possible public exploration of the issues raised by an inquest and protecting the public interest in preserving national security. This chapter deals with the particular procedural difficulties that can arise when dealing with a case involving sensitive material, and the mechanisms that have been used thus far to address them. Two useful examples of this machinery in action were provided by the inquest into the death in London of the former KGB officer, Alexander Litvinenko, and the inquests into the seven deaths of British citizens and residents in the terrorist attack on the Tiguentourine Gas Facility near In Amenas in Algeria in January 2013.2 In the former case, a High Court Judge, Sir Robert Owen, had been appointed assistant deputy coroner at a fairly early stage of the inquest, presumably because it was recognised that the case was bound to be high profile and could involve disclosure of sensitive information. The coroner set a wide scope for his inquest and the question arose as to how best to manage disclosure to him of sensitive material held by the Government. In the absence of any statutory arrangement for this task, it was agreed between the Government and counsel instructed by the coroner, first, that the Government would show the coroner, but not formally disclose to him, all relevant material in respect of which they might need to claim PII; second, that his counsel and counsel for the Government would identify particular documents (‘samples’) out of the sensitive material which were characteristic of the whole; third that the Secretary of State would claim PII in respect of that material; and fourth, that the coroner would then rule on those claims. Having considered the material and heard argument, the coroner granted PII in respect of most, but not all, of the sensitive material. The Secretary of State issued judicial review proceedings challenging his decision as to the rest. That process was considered on three occasions by the Divisional Court. First, in Secretary of State for the Foreign and Commonwealth Office v Assistant Deputy Coroner for Inner North London,3 the Court had to decide whether ‘properly interested persons’ (PIPs) in an inquest should be accorded the status of ‘interested parties’ in a judicial review claim arising from the inquest. If they were, it was said, they would be entitled to participate in the judicial review, a step which was likely to frustrate the whole purpose of the PII claim. The Court held (by a majority) that PIPs were interested parties but (unanimously) that it was not inevitable that a party with a direct interest in the outcome

2 The transcript of the assistant coroner’s factual finding and conclusions are at www.inamenasinquest.org.uk/ hearing-transcripts.html. 3 Secretary of State for the Foreign and Commonwealth Office v Assistant Deputy Coroner for Inner North London [2013] EWHC 1786 (Admin).

Inquests Involving the Intelligence Services and Agencies 477

of a judicial review should be served with the claim form and that such a person was not necessarily entitled to participate in the judicial review. Second, the proper approach to claims for PII in a case of this sort was explored in a second judicial review, also known as Secretary of State for the Foreign and Commonwealth Office v Assistant Deputy Coroner for Inner North London.4 The Court held that even in cases in which national security was said to be at stake, it was for courts, and not the Government, to decide whether PII should prevent disclosure. However, in the present case, the Secretary of State had explained cogently why disclosure involved a real and significant risk to national security. The Court held that his view as to the nature and extent of the potential damage was to be accepted unless there were cogent or solid reasons to reject it. There were none here. That case is discussed in Chapter 13 on anonymity, protective measures and public interest immunity. Third, in R (Marina Litvinenko) v Secretary of State for the Home Department,5 the Court considered the consequences of the upholding of the PII certificate. Faced with that decision, the coroner had written to the Lord Chancellor and invited him to establish a public inquiry under the Inquiries Act 2005. The Home Secretary replied refusing that request. The widow of Mr Litvinenko successfully sought judicial review of that decision, a case discussed in Chapter 26 on steps after the inquest. The second case illustrative of the difficulties that can arise in such cases is the In Amenas inquest in 2014. The West Sussex senior coroner, who originally had conduct of the inquests, had set a wide scope which included consideration of the security of the site and whether there was information known relating to the impending attack. When the question was raised as to whether the UK authorities had any such material, three significant changes to the conduct of the hearing were put into effect. First, with the assistance of the Chief Coroner, arrangements were made for the inquest to be heard by the Recorder of London, sitting as an assistant coroner, in the place of the senior coroner. Second, a silk who had been subject to what is known as ‘developed vetting’ (and who is described therefore as being ‘DVed’) was instructed by the coroner (in addition to the junior counsel already acting for him) to advise him on the relevance of UK Government material which had not been disclosed to the interested persons. Third, on 15 December 2014, the Foreign Secretary issued a PII certificate. The advantage of the appointment of the assistant coroner was never publicly articulated. But the obvious benefits were that he was able to see material made subject to the PII certificate and was a ‘relevant judge’ within the meaning of that expression in section 18 of RIPA. The latter qualification meant that if, which was never (and, given the terms of the Act, could never be) confirmed, there was material caught by that Act, and if he found that there were exceptional circumstances which would justify such a step, the coroner could order disclosure of that material to himself. The advantage of appointing a DVed counsel was that he could consider the sensitive material, advise the coroner on its relevance and make submissions to the coroner on the justification for the PII certificate. He would not necessarily have had access, however, to all the sensitive material; if RIPA material existed he would not have been allowed to see 4 Secretary of State for the Foreign and Commonwealth Office v Assistant Deputy Coroner for Inner North London [2013] EWHC 3724 (Admin). 5 R (Marina Litvinenko) v Secretary of State for the Home Department [2014] EWHC 194 (Admin).

478 Sir Neil Garnham

that, because he would not fall within those categories of person who are allowed access to it under the 2000 Act. Although the coroner could see sensitive material which could not be disclosed to interested persons, he could not take it into account in the inquest. The most that sight of such material could do would be to lead a coroner to decline to make a decision at all on the issue in question. That was a possibility identified by the Divisional Court in the first Litvinenko judicial review referred to above (see paragraph 33 of the judgment set out below). A further difficulty that may arise in inquests involving the intelligence agencies is discussed in Chapter 15; there is considerable uncertainty as to the proper construction of paragraphs 1 and 2 of Schedule 5 to the 2009 Act. Has the jurisdiction of the High Court to determine PII applications in inquests been excluded by the grant of power to the coroner to determine a claim that a person is unable to comply with a notice requiring the production of documents or a claim that it is not reasonable to require him to comply with such a notice? The somewhat ad hoc arrangements described above illustrate a weakness in the present arrangements for inquests in this class of case. The legislation and cases cited below is that referred to in this Overview, save where the material is already set out elsewhere in this book.

II. Legislation Section 45 of, and Schedule 5 to, the CJA 2009 and rule 1 of the Coroners (Inquest) Rules 2013 are set out at Section II. of Chapter 15, and are not repeated here.

Regulation of Investigatory Powers Act 2000 17. Exclusion of matters from legal proceedings (1) Subject to section 18, no evidence shall be adduced, question asked, assertion or disclosure made or other thing done in, for the purposes of or in connection with any legal proceedings or Inquiries Act proceedings which (in any manner)— (a) discloses, in circumstances from which its origin in anything falling within subsection (2) may be inferred, any of the contents of an intercepted communication or any related communications data; or (b) tends (apart from any such disclosure) to suggest that anything falling within subsection (2) has or may have occurred or be going to occur. (2) The following fall within this subsection— (a) conduct by a person falling within subsection (3) that was or would be an offence under section 1(1) or (2) of this Act or under section 1 of the Interception of Communications Act 1985; (b) a breach by the Secretary of State of his duty under section 1(4) of this Act; (c) the issue of an interception warrant or of a warrant under the Interception of Communications Act 1985;

Inquests Involving the Intelligence Services and Agencies 479 (d) the making of an application by any person for an interception warrant, or for a warrant under that Act; (e) the imposition of any requirement on any person to provide assistance with giving effect to an interception warrant. (3) The persons referred to in subsection (2)(a) are— (a) any person to whom a warrant under this Chapter may be addressed; (b) any person holding office under the Crown; (ba) any person deemed to be the proper officer of Revenue and Customs by virtue of section 8(2) of the Customs and Excise Management Act 1979; (e) any person employed by or for the purposes of a police force; (f) any person providing a postal service or employed for the purposes of any business of providing such a service; and (g) any person providing a public telecommunications service or employed for the purposes of any business of providing such a service. (4) [In this section—] ‘Inquiries Act proceedings’ means proceedings of an inquiry under the Inquiries Act 2005; ‘intercepted communications’ means any communication intercepted in the course of its transmission by means of a postal service or telecommunication system. 18. Exceptions to section 17 (1) Section 17(1) shall not apply in relation to— (a) (b) (c) (d)

any proceedings for a relevant offence; any civil proceedings under section 11(8); any proceedings before the Tribunal; any proceedings on an appeal or review for which provision is made by an order under section 67(8);

… (7) Nothing in section 17(1) shall prohibit any such disclosure of any information that continues to be available for disclosure as is confined to— (a) a disclosure to a person conducting a criminal prosecution for the purpose only of enabling that person to determine what is required of him by his duty to secure the fairness of the prosecution; (b) a disclosure to a relevant judge in a case in which that judge has ordered the disclosure to be made to him alone; or (c) a disclosure to the panel of an inquiry held under the Inquiries Act 2005 or to a person appointed as counsel to such an inquiry where, in the course of the inquiry, the panel has ordered the disclosure to be made to the panel alone or (as the case may be) to the panel and the person appointed as counsel to the inquiry … (8) A relevant judge shall not order a disclosure under subsection (7)(b) except where he is satisfied that the exceptional circumstances of the case make the disclosure essential in the interests of justice. (8A) The panel of an inquiry shall not order a disclosure under subsection (7)(c) except where it is satisfied that the exceptional circumstances of the case make the disclosure essential to enable the inquiry to fulfil its terms of reference.

480 Sir Neil Garnham (9) Subject to subsection (10), where in any criminal proceedings— (a) a relevant judge does order a disclosure under subsection (7)(b), and (b) in consequence of that disclosure he is of the opinion that there are exceptional circumstances requiring him to do so, he may direct the person conducting the prosecution to make for the purposes of the proceedings any such admission of fact as that judge thinks essential in the interests of justice. (10) Nothing in any direction under subsection (9) shall authorise or require anything to be done in contravention of section 17(1). (11) In this section ‘a relevant judge’ means— (a) any judge of the High Court or of the Crown Court or any Circuit judge; (b) any judge of the High Court of Justiciary or any sheriff; (c) in relation to proceedings before the Court Martial, the judge advocate for those proceedings; or (d) any person holding any such judicial office as entitles him to exercise the jurisdiction of a judge falling within paragraph (a) or (b) …

III. Cases (i) R (Secretary of State for the Home Department) v Inner West London Assistant Deputy Coroner [2010] EWHC 3098, [2011] 1 WLR 2564 Keywords: Evidence, intelligence services and agencies, judicial review The Secretary of State sought judicial review of a decision of the coroner not to exclude the bereaved families and their legal representatives from part of the inquests into the deaths of the victims of the July 7, 2005 London bombings. The coroner had ruled that she would be inquiring into the preventability of the bombings, including whether there had been failures on the part of the security service and police force properly to investigate and assess the intelligence in relation to two of the bombers, and whether any of the alleged failings were causative of the events of 7 July. Given the sensitive nature of the evidence the Secretary of State sought a closed hearing. The coroner refused. The question was whether rule 17 of the Coroners Rules 1984 empowered the coroner to exclude properly interested persons and their legal representatives from part of an inquest and to receive and later take into account closed material received in their absence. The Court held: 1. This application for judicial review, for which we grant permission, relates to a decision made by Lady Justice Hallett, who is presently sitting as Assistant Deputy Coroner for West London, so as to conduct inquests (the Inquests) into the deaths of the victims of the bombings in London on 7 July 2005. I shall refer to her as ‘the Coroner’. The single issue raised by the application is whether the Coroner has power to receive sensitive evidence relating to the Security Service in a closed hearing. For these purposes, ‘closed’ means ‘in the absence of properly interested persons and their legal representatives’. The closed hearing would be attended only by members of the Security Service and their legal representatives, together with counsel to the Inquests and those instructing them … …

Inquests Involving the Intelligence Services and Agencies 481 8. As I have indicated, the central issue on this appeal is one of statutory construction: does rule 17 empower the Coroner to exclude properly interested persons and their legal representatives from part of an inquest and to receive and later take into account closed material received in their absence? In order to answer this question it is necessary to consider not only the wording of rule 17 but its context and to strive to give effect to its purpose … … 11. … [I]t seems to me that we should approach the task of construction by keeping in mind the question whether rule 17 was intended to empower a coroner to exclude properly interested persons from part of an inquest, such exclusion being in conflict with the aims of transparency and participation, even if, as Mr Eadie submits, it enhances the aim of effectiveness … … 15. The essence of the construction issue can be simply expressed: does ‘the public’ in the proviso to rule 17 mean ‘any person’ or does it only apply to those who are not properly interested persons and their legal representatives? We have received numerous submissions about the adverse consequences which would flow from one or the other interpretation. At their highest they are these. If the ‘any person’ construction is correct, it would mean that properly interested persons might receive a decision significantly influenced by material of which they and their legal representatives know nothing. They may have seen and heard evidence tending to point to conclusion A but find that closed material has trumped that and given rise to conclusion B. The other side of the coin is that the Coroner will have based her conclusion on all the evidence, with none excluded. If the ‘but not properly interested persons or their legal representatives’ construction is correct, the result will be the exclusion of potentially significant material on the basis of PII so that the Coroner bases her conclusions on incomplete material but the proceedings will not have departed from the principles of transparency and participation … … 17. Paragraph (2) [of Rule 20] lists eligible beneficiaries of this provision who, of course, include bereaved families. ‘(1) Subject to the provisions of paragraphs (2) to (4), the coroner may admit at an inquest documentary evidence relevant to the purposes of the inquest from any living person … unless a person who in the opinion of the coroner is within rule 20(2) objects to the documentary evidence being admitted.’ 18. Rule 37(2) deals with the resolution of such an objection. ‘(1) A coroner shall, on application and on payment of the prescribed fee (if any), supply to any person who, in the opinion of the coroner, is a properly interested person a copy of any report of a post-mortem examination … or special examination … or of any notes of evidence or of any document put in evidence at the inquest.” 19. The Coroner was impressed by the fact that these three provisions confer ‘absolute rights’ on properly interested persons in the sense that they are expressed in mandatory language (‘shall’) with some conditions or exceptions but none in relation to national security or by reference to rule 17. 20. I, too, find this to be cogent. Plainly, appropriate conditions and exceptions are included. Rule 20(1) is expressed to be ‘without prejudice to any enactment with regard to the examination of witnesses at an inquest’ and there is a duty imposed on the coroner by rule 20(1)(b) to disallow ‘any question which in his opinion is not relevant or is otherwise not a proper question’. There is

482 Sir Neil Garnham nothing in rule 20 to suggest that the ‘entitlement to examine witnesses’ (as it is headed) is circumscribed by a national security qualification. Similarly rule 37(1) begins with a qualification (‘subject to the provisions of paragraphs (2) to (4)’) but it is not linked to rule 17. 21. For my part, I find rule 57 to be particularly significant. The purpose of enabling a properly interested person to obtain copies of the prescribed material is to enable him to satisfy himself that the conclusions of the coroner are soundly based. Rule 57 is an adjunct to section 13 of the 1988 Act which provides for an application to the High Court (by or under the authority of the Attorney General but usually on request of a properly interested person) for another inquest to be held where it is necessary or desirable and in the interests of justice. The grounds are described as ‘fraud, rejection of evidence, irregularity of proceedings, insufficiency of inquiry, the discovering of new facts or evidence or otherwise’. This is the route through which an aggrieved party is enabled to mount a statutory challenge to an inquest (or to a refusal to hold one). It assumes a basis for informed dialogue between such a person and the office of the Attorney General. It seems to me that it would be quite impossible for an aggrieved person even to begin to mount such a challenge in relation to unexplained conclusions founded on closed material. They would be virtually immune from challenge or scrutiny … … 24. I accept that an inquest is by definition an inquisitorial process and is different in kind from adversarial civil and criminal litigation. The task of a coroner is to investigate and to produce answers to the questions posed by the scope of the inquest. It is usual for a coroner to do so on the basis of full information. Mr Eadie submits that these features of inquests in general call for an approach to construction which strives to ensure that a coroner is able to act on full information. In so doing he emphasises the need to ensure that inquests are effective. However, the fact that inquests are inquisitorial does not diminish their context as essentially judicial procedures which are governed by the principle of open justice except to the extent that that principle is limited by statutory provision. The inquisitorial context is a factor but it is not determinative as to construction. 25. For all these reasons, I am satisfied that the Coroner’s construction of rule 17 was correct. I now turn to Mr Eadie’s alternative submission, namely that in this inquisitorial context there is still scope for an implied power to receive closed material in a closed hearing so as to further the objective of the Inquests, provided that such a course is not prohibited by the statutory provisions. He relies on R v HM Coroner for Lincoln, ex parte Hay [2000] Lloyd’s Rep Med 264, in which Brooke LJ said (at page 271): ‘Subject to the need to obey the requirements of the Act and the Rules, it is for each coroner to decide best how he should perform his onerous duties in a way that is as fair as possible to everyone concerned, as well as doing his best to reduce the number of avoidable adjournments.’ 26. In my judgment, this submission founders on the qualifying clause of Brooke LJ’s uncontroversial formulation. The effect of the construction of rule 17 adopted by the Coroner and confirmed by us is that there is no scope for the implied power because of ‘the need to obey the requirements of the Act and the Rules’. 27. I have not so far mentioned section 17A of the 1988 Act, which was added by amendment with effect from 1 January 2000: Access to Justice Act 1999, section 71(1). Its late arrival renders it of limited value as an aid to construction of the 1984 Rules. It provides: ‘(1) If on an inquest into a death the coroner is informed by the Lord Chancellor before the conclusion of the inquest that—

Inquests Involving the Intelligence Services and Agencies 483 (a) a public inquiry conducted or chaired by a judge is being, or is to be, held into the events surrounding the death; and (b) the Lord Chancellor considers that the cause of death is likely to be adequately investigated by the inquiry, the coroner shall, in the absence of any exceptional reason to the contrary, adjourn the inquest and, if a jury has been summoned, may, if he thinks fit, discharge them.’ 28. The significance of this provision is that statute now acknowledges that there may be circumstances in which the investigation may be more suited to a judicial inquiry otherwise than under the Coroners Act. In current conditions, the alternative judicial inquiry would probably take place under the Inquiries Act 2005, which includes specific provisions permitting restrictions on attendance and disclosure or publication of evidence or documents: section 19. It remains open to the Lord Chancellor to invoke section 17A in the present case if a procedure governed by the 1988 Act and the 1984 Rules is considered inappropriate. One can conceive of practical difficulties but also pragmatic solutions. However, they are not matters for this Court … … 31. Finally, I turn to the Coroner’s view of the consequences of the construction that has prevailed. She said: ‘I do not accept that my ruling will amount to an abrogation of the inquisitorial function. On the contrary, I am satisfied my ruling is entirely consistent with that function as presently regulated by Parliament. I am still hopeful that, with full cooperation on all sides, most, if not all, of the relevant material can and will be put before me in such a way that national security is not threatened … I repeat, sources may be withheld, redactions made. I do not intend to endanger the lives of anyone. I do not intend to allow questions which might do so. I do not intend to allow questions which I know to be based on a false premise or which I know to be misleading … Finally, I wish to emphasise I do not intend to make findings adverse to the Security Service which I know to be false.’ 32. Almost all of that seems to me to be uncontentious. Experience of similar problems in other areas of litigation in recent years disposes me to the view that, to a considerable extent, material in respect of which PII is rightly claimed can often be produced in a redacted, summarised or gisted way without risk to national security so as to enable properly interested persons and their legal representatives to participate effectively in the proceedings. I accept, and it is the premise upon which this case has been conducted, that there will remain an area of sensitive material which is not suitable for disclosure. I am unable to quantify it. The Coroner, when she made her ruling, had not seen it. Nor have we. If our expectations prove to be too sanguine, there may be difficulties ahead. It is not for us to predict them or to prescribe solutions. However, I do consider it necessary to refer to the final sentence in the above passage of the Coroner’s peroration on this issue. 33. The Coroner is well aware that, in reaching and reasoning her eventual conclusions, she will have to disregard all undisclosed PII material. That is implicit in an earlier passage in her ruling and from a later passage coming after her ruling on another issue which is not the subject of an appeal. It follows that I do not think that in the final sentence to which I have referred she was anticipating the possibility of rejecting a finding based on open material because it would fly in the face of the undisclosed, PII material. That would be wrong. She would be bound to base her decision on the open material or, perhaps, to decline to make a decision at all on the issue in question. As to that and its possible consequences, it would be inappropriate for us to say more.

484 Sir Neil Garnham

(ii) Secretary of State for the Foreign and Commonwealth Office v Assistant Deputy Coroner for Inner North London [2013] EWHC 1786 (Admin) Keywords: Administrative law, disclosure, evidence, intelligence services and agencies, interested persons, judicial review, public interest immunity The facts of this case are discussed above. Golding LJ held: 1. By a Certificate dated 7 February 2013 the Secretary of State for Foreign and Commonwealth Affairs claimed public interest immunity (PII) in respect of a number of documents selected by agreement between counsel to the Inquest and counsel acting on behalf of the Secretary of State as a representative sample in the possession and control of Her Majesty’s Government (HMG) of relevance to the issues identified in the Provisional List of Issues to which the inquest of Alexander Litvinenko gives rise. As he set out in an open ruling of 17 May 2013, the Deputy Assistant Coroner (the Coroner) in part upheld the Secretary of State’s PII claim, in part rejected it. The Secretary of State seeks judicial review of that part of the Coroner’s decision which rejected his claim for PII. 2. The essential issue with which this judgment is concerned is whether the ‘properly interested persons’ (PIPs) in the inquest should be ‘interested parties’ who should participate in the judicial review. Mr. Garnham QC on behalf of the Secretary of State has made it plain that if the law demands that they should, there would be no circumstances in which he would be instructed to conduct that judicial review in public. On the basis that there could be no closed material procedure, a topic upon which Mr. Garnham formally reserves his position, it would mean the C oroner’s decision would not presently be open to challenge. (At the time of argument in this case the judgment of the Supreme Court in Bank Mellat (Appellant) v Her Majesty’s Treasury (Respondent) (No. 1) [2013] UKSC 38, had not been handed down). Implicit in Mr. Garnham’s submissions is the assumption that if the only parties to the judicial review were the Coroner and the Secretary of State, a private hearing could take place under CPR 39.2, sub-paragraphs (a) and/or (b) and/or (c). The witness summons 3. The Coroner asks the court to issue a witness summons under CPR 34.4(1) requiring the Secretary of State to produce to him those documents that he has decided should be disclosed (by means of a gist). Mr. Garnham has made it clear that were the judicial review not to proceed or to fail on the basis that the Coroner was entitled to come to the conclusion he did, the Secretary of State would object to their production on the grounds of PII … … 45. PII is a long established part of the Common Law. It may be claimed in both civil and criminal proceedings. Its procedure is well established. It has nothing to do with a closed material procedure; in that regard, see for example the comments of Lord Dyson SCJ in Al Rawi v Security Service [2012] 1AC 531 at paragraphs 41 and 49. It is the only means by which, in a case such as the present, a judge is able to consider whether material, the disclosure of which it is believed by the Secretary of State would cause serious harm to the public interest, should be disclosed. It is the only alternative to disclosing the very material which it is said might cause such harm. 46. The process followed here was a perfectly proper one. First, the Coroner sought open submissions from the PIPs on the issues raised by the claim for PII. Second, he held an ex parte hearing. 47. In order to facilitate the whole process there was co-operation between HMG and the C oroner. The Secretary of State permitted the Coroner to examine the material in respect of which PII was claimed on a representative basis. He need not have. He would have been entitled to require the Coroner to seek that material (if necessary document by document) from him. Such a course

Inquests Involving the Intelligence Services and Agencies 485 would have required the Coroner to issue a witness summons. The Secretary of State would have responded by refusing disclosure on the basis of PII. 48. Given that background, it would be very unfortunate indeed if the Coroner’s decision to order disclosure of material which in the view of the Secretary of State would cause serious harm to the public interest effectively could not be appealed. However, if the law currently dictates such an outcome, then of course I must abide by it. What the Coroner decided in respect of the PII material 49. I cannot accept Mr. Garnham’s characterisation of the Coroner’s decision on disclosure in his open ruling as merely one in principle, leaving open a further exercise of discretion. When read as a whole, the sequence seems to me: (i)

First, on 17 January 2013 the Coroner decided on scope. That decision at the time was necessarily provisional (see paragraph 10 above). (ii) Second, the PII material provided by the Secretary of State was considered by him and by counsel to the Inquest and for the Secretary of State to be relevant and within scope. (iii) Third, having considered the material, as he made clear in paragraphs 29 and 33 of his open ruling (paragraphs 20 and 21 above), the Coroner was of the view that it was relevant and should be disclosed to the PIPs. No question of disclosure of PII material could have arisen in the first place unless it was relevant. Had the redactions not been made, the ‘high-level’ disclosure as the Coroner described it in paragraph 31 of his ruling would have been made immediately. Such disclosure was made where the Secretary of State indicated he was not challenging the Coroner’s decision on PII. There was no question of a fresh consideration of his discretion. In paragraph 27 of his ruling (paragraph 19 above), the Coroner said in terms that the redactions would be removed to the extent that his decision was unsuccessfully challenged. He plainly contemplated immediate disclosure to the PIPs. (iv) Fourth, given the position in which he then found himself, and as he was bound to, the Coroner went on to consider the implications of his upholding of the Secretary of State’s claims for PII. One thing he had then to consider was how that finding might affect scope. He concluded that to remove those items from scope would result in an incomplete inquiry and a potentially misleading and/or unfair verdict to the PIPs. The rationale for wanting a public inquiry was plainly because, in the Coroner’s view, the PII material was relevant and necessary for a proper Inquest. That does not suggest that he was contemplating a further exercise of his discretion in respect of the PII material. (v) Fifth, given what the Coroner said in his open ruling it seems to me self-evident that similar considerations apply to the challenged material. Were it to be excluded from the Inquest the Coroner’s complaint regarding the inadequacy of the inquest process would probably be even stronger. CPR 54 50. The issue as far as CPR 54(2)(f) is concerned is whether in those circumstances the PIPs would be directly affected by the claim for judicial review of the Coroner’s decision to disclose. That can be tested by considering the consequence of the court quashing the decision. The quashing of the Coroner’s decision would mean that the PIPs would not receive the material which the Coroner had decided was relevant and necessary for a proper inquest. They could not exercise their rights in relation to it. They could not make submissions regarding it in pre-inquest hearings. They could not examine any witness regarding it. That, as it seems to me, would be a direct consequence of the claim for judicial review. It would not be indirect, as was the case in Muldoon. Applying the plain and natural meaning of CPR 54.1(2)(f) to the facts of this case means, in my view, that the PIPs are interested parties in the judicial review.

486 Sir Neil Garnham 51. While I well understand Mr. Garnham’s point that the judicial review essentially concerns what happened in the ex parte proceedings, that cannot, as it seems to me, change the position. More over, I cannot see that the overriding objective could effectively overrule the plain words and natural meaning of CPR 54.1(2)(f). 52. The fact that in the event of the Secretary of State’s challenge being unsuccessful further litigation on the witness summons may follow does not affect my view. One outcome at least of the judicial review (a quashing of the decision) would have a direct affect [sic] on the PIPs. That another might not does not seem to me to affect the application of CPR 54.1(2)(f). The court’s discretion and the overriding objective 53. CPR 54.7(b) (paragraph 27 above) deals with the service of the claim form. Without service of the claim form the interested party cannot participate in the judicial review; see CPR 54.8. CPR 54.7(b) provides that the court may direct that the claim form not be served on anyone considered by the claimant to be an interested party. In this case, the claimant does not consider that the PIPs are interested parties. The exercise of the court’s discretion under 54.7(b) cannot therefore come into play. What that provision does make clear however, is that the Rules contemplate that a party with a direct interest in the outcome of a judicial review need not inevitably be served; in other words, that an interested party is not necessarily entitled to participate in a judicial review. It is a matter for the court in the exercise of its case management powers, necessarily having regard to the overriding objective to deal with cases justly. 54. It would be an unfortunate consequence of CPR 54.7(b) if, as a result of the claimant’s failure to join someone with a direct interest in the outcome of the judicial review, any case management discretion by the court regarding that person’s participation in the judicial review were, for that reason, lost. Such an outcome could well in a particular case be contrary to the overriding objective. 55. CPR 19.4(1) requires the court’s permission to add a party. Although we have had no formal applications by the PIPs to be added as interested parties under CPR 19.4(2), it is implicit in the present proceedings that they would wish to be. It seems to me, however, there are cogent reasons why, in the particular circumstances of this case, they should not. 56. First, the decision of the Coroner was taken following a proper ex parte procedure in accordance with the law, as the PIPs and counsel to the Inquest appear to have accepted at the time. The PIPs are not seeking to review it. The judicial review will fundamentally be concerned with the outcome of that ex-parte hearing; whether the Coroner’s decision in his discrete closed judgment was lawful. Adding the PIPs as parties would mean that that decision probably could not be the subject of an appeal. That is plainly highly undesirable. A court cannot deal justly with a case if in substance it cannot try it. 57. Second, CPR 54.17 (paragraph 30 above) permits the court to grant permission to any person to make representations to the Divisional Court. The interested persons (and the media) could follow an exactly analogous process to that before the Coroner. Mr. Garnham has made it clear he would have no objection. The procedure would, to adopt Mr. O’Connor’s phrase, be a composite one as before the Coroner.

Inquests Involving the Intelligence Services and Agencies 487 58. Third, the parties participating in the judicial review would both be present. CPR 39.2(3) would permit the hearing to be in private. Such a procedure would have nothing to do with any closed material procedure. It is the normal way in which issues concerning national security can be ventilated. That would be so if the hearing concerned any other sort of confidential information. 59. Fourth, such a course would, in the very unusual circumstances of this case, enable the case to be dealt with justly. The Coroner’s decision could be reviewed in accordance with accepted legal principles. No injustice would be done to the interested persons or the media. 60. Accordingly, I have concluded that the PIPs are directly affected by the claim. They should not be added as interested parties. They should (as should the media) be able to file evidence or make representations during the open part of the proceedings.

488

24 Deaths in the Workplace ALASDAIR HENDERSON

I. Overview The UK has a comprehensive set of health and safety at work legislation, which has made it one of the safest countries in the world in which to work. The responsibility to enforce much of this legislation lies with the Health and Safety Executive (HSE), the statutory agency set up under the Health and Safety at Work etc Act 1974 (HSAW Act 1974). However, there are still more than 100 reported incidents of people who die at work every year.1 HSE inspectors can prosecute companies and individuals for health and safety breaches, and deaths at work can also give rise to prosecutions for manslaughter or corporate manslaughter by the Crown Prosecution Service (CPS). Any death which is work-related (ie ‘arising out of or in connection with work’)2 must be reported to the relevant enforcing authority, often the HSE.3 This requirement encompasses the death of ‘any person’, and so applies not just to employees, but also self-employed contractors, illegal workers, and even members of the public who die as a result of workrelated activity. As a consequence of the reporting requirements, any work-related death must also be subject to a jury inquest.4

II. Legislation and Other Sources Coroners and Justice Act 2009 7. Whether jury required (2) An inquest into a death must be held with a jury if the senior coroner has reason to suspect— …

1 In 2014–15 (the latest year for which statistics were available at the time of publication) there were 142 deaths at work—see www.hse.gov.uk/statistics/index.htm. 2 Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR), SI 2013/1471, reg 2(1). 3 RIDDOR 2013, reg 6. 4 Coroners and Justice act 2009 (CJA 2009), s 7(2)(c) and (4).

490 Alasdair Henderson (c) that the death was caused by a notifiable accident, poisoning or disease. … (4) For the purposes of subsection (2)(c) an accident, poisoning or disease is ‘notifiable’ if notice of it is required under any Act to be given— (a) to a government department, (b) to an inspector or other officer of a government department, or (c) to an inspector appointed under section 19 of the Health and Safety at Work etc. Act 1974 (c. 37).

Corporate Manslaughter and Corporate Homicide Act 2007 1. The offence (1) An organisation to which this section applies is guilty of an offence if the way in which its activities are managed or organised— (a) causes a person’s death, and (b) amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased. (2) The organisations to which this section applies are— (a) (b) (c) (d)

a corporation; a department or other body listed in Schedule 1; a police force; a partnership, or a trade union or employers’ association, that is an employer.

(3) An organisation is guilty of an offence under this section only if the way in which its activities are managed or organised by its senior management is a substantial element in the breach referred to in subsection (1). (4) For the purposes of this Act— (a) ‘relevant duty of care’ has the meaning given by section 2, read with sections 3 to 7; (b) a breach of a duty of care by an organisation is a ‘gross’ breach if the conduct alleged to amount to a breach of that duty falls far below what can reasonably be expected of the organisation in the circumstances; (c) ‘senior management’, in relation to an organisation, means the persons who play significant roles in— (i) the making of decisions about how the whole or a substantial part of its activities are to be managed or organised, or (ii) the actual managing or organising of the whole or a substantial part of those activities. (5) The offence under this section is called— (a) corporate manslaughter, in so far as it is an offence under the law of England and Wales or Northern Ireland; (b) corporate homicide, in so far as it is an offence under the law of Scotland.

Deaths in the Workplace 491 (6) An organisation that is guilty of corporate manslaughter or corporate homicide is liable on conviction on indictment to a fine. … 2. Meaning of ‘relevant duty of care’ (1) A ‘relevant duty of care’, in relation to an organisation, means any of the following duties owed by it under the law of negligence— (a) a duty owed to its employees or to other persons working for the organisation or performing services for it; (b) a duty owed as occupier of premises; (c) a duty owed in connection with— (i) the supply by the organisation of goods or services (whether for consideration or not), (ii) the carrying on by the organisation of any construction or maintenance operations, (iii) the carrying on by the organisation of any other activity on a commercial basis, or (iv) the use or keeping by the organisation of any plant, vehicle or other thing; (d) a duty owed to a person who, by reason of being a person within subsection (2), is someone for whose safety the organisation is responsible. (2) A person is within this subsection if— (a) he is detained at a custodial institution or in a custody area at a court, a police station or customs premises; (aa) he is detained in service custody premises; (b) he is detained at a removal centre, a short-term holding facility or in pre-departure accommodation; (c) he is being transported in a vehicle, or being held in any premises, in pursuance of prison escort arrangements or immigration escort arrangements; (d) he is living in secure accommodation in which he has been placed; (e) he is a detained patient. (3) Subsection (1) is subject to sections 3 to 7.5 (4) A reference in subsection (1) to a duty owed under the law of negligence includes a reference to a duty that would be owed under the law of negligence but for any statutory provision under which liability is imposed in place of liability under that law. (5) For the purposes of this Act, whether a particular organisation owes a duty of care to a particular individual is a question of law. The judge must make any findings of fact necessary to decide that question. (6) For the purposes of this Act there is to be disregarded— (a) any rule of the common law that has the effect of preventing a duty of care from being owed by one person to another by reason of the fact that they are jointly engaged in unlawful conduct;

5 These sections exempt from the definition of ‘relevant duty of care’ any duty of care owed by a public authority in respect of either a decision as to matters of public policy or in the exercise of an exclusively public function or statutory function (s 3), as well as military activities (s 4), policing and law enforcement activities (s 5), actions taken in an emergency (s 6), and most child protection and probation functions (s 7).

492 Alasdair Henderson (b) any such rule that has the effect of preventing a duty of care from being owed to a person by reason of his acceptance of a risk of harm. (7) In this section— ‘construction or maintenance operations’ means operations of any of the following descriptions— (a) construction, installation, alteration, extension, improvement, repair, maintenance, decoration, cleaning, demolition or dismantling of— (i) any building or structure, (ii) anything else that forms, or is to form, part of the land, or (iii) any plant, vehicle or other thing; (b) operations that form an integral part of, or are preparatory to, or are for rendering complete, any operations within paragraph (a); ‘custodial institution’ means a prison, a young offender institution, a secure training centre, a young offenders institution, a young offenders centre, a juvenile justice centre or a remand centre; ‘customs premises’ means premises wholly or partly occupied by persons designated under section 3 (general customs officials) or 11 (customs revenue officials) of the Borders, Citizenship and Immigration Act 2009; ‘detained patient’ means— (a) a person who is detained in any premises under— (i) Part 2 or 3 of the Mental Health Act 1983 (c. 20) (‘the 1983 Act’), or (ii) Part 2 or 3 of the Mental Health (Northern Ireland) Order 1986 (S.I. 1986/595 (N.I. 4)) (‘the 1986 Order’); (b) a person who (otherwise than by reason of being detained as mentioned in paragraph (a)) is deemed to be in legal custody by— (i) section 137 of the 1983 Act, (ii) Article 131 of the 1986 Order, or (iii) Article 11 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (Consequential Provisions) Order 2005 (S.I. 2005/2078); (c) a person who is detained in any premises, or is otherwise in custody, under the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) or Part 6 of the Criminal Procedure (Scotland) Act 1995 (c. 46) or who is detained in a hospital under section 200 of that Act of 1995; ‘immigration escort arrangements’ means arrangements made under section 156 of the Immigration and Asylum Act 1999 (c. 33); ‘the law of negligence’ includes— (a) in relation to England and Wales, the Occupiers’ Liability Act 1957 (c. 31), the Defective Premises Act 1972 (c. 35) and the Occupiers’ Liability Act 1984 (c. 3); (b) in relation to Scotland, the Occupiers’ Liability (Scotland) Act 1960 (c. 30); (c) in relation to Northern Ireland, the Occupiers’ Liability Act (Northern Ireland) 1957 (c. 25), the Defective Premises (Northern Ireland) Order 1975 (S.I. 1975/1039 (N.I. 9)), the Occupiers’ Liability (Northern Ireland) Order 1987 (S.I. 1987/1280 (N.I. 15)) and the Defective Premises (Landlord’s Liability) Act (Northern Ireland) 2001 (c. 10); ‘prison escort arrangements’ means arrangements made under section 80 of the Criminal Justice Act 1991 (c. 53) or under section 102 or 118 of the Criminal Justice and Public Order Act 1994 (c. 33);

Deaths in the Workplace 493 ‘removal centre’, ‘pre-departure accommodation’ have the meaning given by section 147 of the Immigration and Asylum Act 1999; ‘secure accommodation’ means accommodation, not consisting of or forming part of a custodial institution, provided for the purpose of restricting the liberty of persons under the age of 18; ‘service custody premises’ has the meaning given by section 300(7) of the Armed Forces Act 2006.

Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 6. Work-related fatalities (1) Where any person dies as a result of a work-related accident, the responsible person must follow the reporting procedure. (2) Where any person dies as a result of occupational exposure to a biological agent, the responsible person must follow the reporting procedure. (3) Where an employee has suffered an injury reportable under regulation 46 which is a cause of his death within one year of the date of the accident, the employer must notify the relevant enforcing authority of the death in an approved manner without delay, whether or not the injury has been reported under regulation 4. (4) This regulation is subject to regulations 14 and 15, and does not apply to a self-employed person who suffers a fatal accident or fatal exposure on premises controlled by that self-employed person. … 14. Restrictions on the application of regulations 4 to 107 (1) Where the injury or death of a person arises out of the conduct of any operation on, or any examination or other medical treatment of, that person (such operation, examination or other treatment being conducted by or under the supervision of a registered medical practitioner or a registered dentist), the requirements of regulations 4, 5, 6(1) and 12(1)(b) do not apply. (2) In paragraph (1), ‘registered dentist’ has the meaning given by section 53(1) of the Dentists Act 1984. (3) Where the injury or death of a person arises out of or in connection with the movement of a vehicle on a road, the requirements of regulations 4, 5, 6 and 12(1)(b) do not apply, unless that person— (a) was injured or killed by an accident involving a train; (b) was injured or killed by exposure to a substance being conveyed by the vehicle; (c) was engaged in work connected with the loading or unloading of any article or substance onto or off the vehicle at the time of the accident, or was injured or killed by the activities of another person who was so engaged; or

6

This applies to the reporting of non-fatal injuries at work. Regulation 6 is the key provision for inquests, as it deals with work-related fatalities. Regulations 4 and 5 deal with non-fatal injuries, whilst regs 7–9 deal with dangerous occurrences, occupational diseases and exposure to carcinogens, mutagens and biological agents. Regulation 10 covers diseases offshore. 7

494 Alasdair Henderson (d) was engaged in, or was injured or killed by the activities of another person who was at the time of the accident engaged in, work on or alongside a road. (4) In paragraph (3)(d), ‘work on or alongside a road’ means work concerned with the construction, demolition, alteration, repair or maintenance of— (a) (b) (c) (d)

the road or the markings or equipment on the road; the verges, fences, hedges or other boundaries of the road; pipes or cables on, under, over or adjacent to the road; or buildings or structures adjacent to or over the road.

(5) The injury, death or diagnosis of a member of the armed forces of the Crown or of a visiting force, on duty at the time, is not subject to the requirements of regulation 4, 6, 8, 9, 10 or 12(1)(b) (and for the purposes of this paragraph a visiting force has the meaning given by section 12(1) of the Visiting Forces Act 1952 1). (6) Except in relation to an offshore workplace, regulations 4 to 9 do not apply to anything which must be notified under— (a) (b) (c) (d) (e) (f) (g)

the Nuclear Installations Act 1965; the Merchant Shipping Act 1988; Orders and Regulations made or to be made under the enactments in (a) and (b); the Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 1996; the Ionising Radiations Regulations 1999; the Electricity Safety, Quality and Continuity Regulations 2002; or the Civil Aviation (Investigation of Military Air Accidents at Civil Aerodromes) Regulations 2005.

15. Restriction on parallel requirements (1) Where the responsible person is under more than one requirement to make a notification under these Regulations, only one notification is required if the conditions in paragraph (3) are met. (2) Where the responsible person is under more than one requirement to make a report under these Regulations, only one report is required if the conditions in paragraph (3) are met. (3) The conditions referred to in paragraphs (1) and (2) are— (a) (b) (c) (d)

the facts giving rise to each requirement are identical; the information required to be provided by each requirement is provided; where the requirements have different time limits, the shortest time limit is complied with; and in the case of a mine or quarry, all steps referred to in paragraph 4 of Part 1 of Schedule 1 are complied with.

(4) Where the responsible person is under more than one requirement to keep a record under these Regulations, only one record is required if the facts giving rise to each requirement are identical and the particulars required by each requirement are contained in the record.

Memorandum of Understanding Between the Coroner’s Society of England and Wales and the Health and Safety Executive (26 September 2011) NB: This can be accessed in full at www.hse.gov.uk/aboutus/howwework/framework/mou/ mou-coroners.pdf. Introduction This Memorandum records an agreement between the Coroners’ Society of England and Wales and the Health and Safety Executive (HSE). It is intended to promote and continue effective

Deaths in the Workplace 495 orking relationships between Coroners and HM Inspectors of Health and Safety, with the object w of fostering constructive co-operation. … Investigation The Enforcement Guide sets out the different roles of the Coroner, HSE, police and Crown Prosecution Service (CPS) and their responsibilities in relation to work-related deaths. The guidance it gives is consistent with the Work-Related Deaths Protocol (WRDP). The Coroners’ Society has undertaken to adopt an approach to HSE investigations similar to the way they treat police investigations: ie Inspectors can be confident that Coroners will only use those parts of witness statements, reports and other investigation material which are necessary for the purposes of the inquest. Coroners will have regard to the fact that HSE may need to undertake further enquiries (including the taking of additional witness statements) and, given that criminal proceedings might arise from the same subject matter, they will avoid wholesale disclosure of investigatory material. The Coroners’ Society recognises the possible complications that can be presented by the implications of the employer-employee relationship that commonly exists in health and safety investigations. The parties to this Memorandum recognise that HSE investigations are restricted by virtue of the HSWA. HSE Inspectors have their own statutory powers. Coroners will not attempt to direct HSE’s investigations. Coroners and/or their officials need to be kept informed of the progress of those enquiries. HSE will, therefore, regularly keep the Coroner informed as to progress of their investigation and discuss issues arising from the investigation (that are relevant to the inquest). There should be an early discussion between HSE and the Coroner after HSE takes primacy for the investigation as to: the likely timescales for the investigation; timing of any inquest; chronology of any legal proceedings; and how and when future updates will be provided. This will enable the Coroner to pursue any separate lines of enquiry, or to take additional statements, that they consider necessary for their inquest. Chronology of proceedings The Enforcement Guide also advises that, once an investigation is complete, HSE will consider whether to bring any criminal proceedings against any organisation or person. If HSE decides that it does not intend to bring such proceedings it will notify the interested parties and the Coroner accordingly. However, HSE will also notify interested parties that it will reconsider that decision in the event of any new information arising at any subsequent inquest. If HSE decides that it does intend to bring criminal proceedings against any organisation or person, it will consider in each case whether to commence those proceedings before or after any inquest. In making this decision, HSE will take into account a number of factors including: —— —— —— ——

When any inquest could be held. The views of the Coroner, police, CPS and the bereaved family members. Whether the investigation has been carried out in accordance with the WRDP. Whether any further information may come to light as a result of the inquest.

In making such decisions, the HSE will be primarily concerned in ensuring that the situation in R v Beedie (in which a health and safety prosecution taken before an inquest prevented a subsequent prosecution for manslaughter) will not arise. In a case where the HSE believes it is in the interests of justice to commence proceedings before an inquest, HSE will request that the inquest be adjourned. In those circumstances, the Society has

496 Alasdair Henderson agreed to treat that request in line with the provisions of section 16(1)(b) of the Coroners Act 1988 [NB: this was repealed and replaced by Schedule 1 of the CJA 2009]. … Disclosure by Coroners In cases where HSE decides not to bring any criminal proceedings, or where proceedings have been commenced and completed before any inquest, there should be no objections from HSE in relation to the Coroner disclosing to properly interested persons any of the material provided by the HSE. In cases where HSE decides to await the outcome of the inquest, there shall be discussions between the Coroner (or the Coroner’s Officer) and the HSE Inspector to ascertain whether there is any concern regarding the disclosure of any documents. Some of HSE’s investigatory material will be relevant to HSE enforcement matters but will have no part or use within inquest proceedings. Discussions should focus on whether the disclosure of any material may prejudice HSE’s investigation or future criminal proceedings. In most cases, the risk of prejudice will reduce once the investigation is complete, and in particular, once any suspect has been interviewed. It is recognised that the Coroner must act fairly in considering what information to disclose or not disclose to properly interested persons and will have to balance this against any claim of prejudice made by HSE. This will depend on the nature of the material, the timing of disclosure, the issues being investigated at the inquest and the nature of any prejudice claimed. Blanket disclosure of all material provided by HSE during an ongoing investigation would not be appropriate. Where HSE identifies an issue over disclosure, HSE will communicate to the Coroner the specific nature of the issue and why non-disclosure is, in HSE’s opinion, appropriate. Example: HSE may obtain evidence to rebut potential ‘defences’ that may be raised by an employer. This evidence may not have any bearing on the death but, if disclosed, would raise a significant risk of prejudice to the criminal investigative process, which will continue after the inquest. Coroners may be informed of such evidence but they should treat the information appropriately. If the Coroner and HSE cannot identify a means by which information can be disclosed without causing prejudice to an ongoing investigation or future criminal proceedings, the Coroner shall not give disclosure without HSE being formally heard on the matter. However, if adhered to, this Memorandum should provide sufficient reassurance to Inspectors to allow ready disclosure of investigatory material to Coroners. It is intended to ensure a sensible approach to disclosure, avoiding the need for any formal applications by HSE to the Coroner over disclosure.

III. Cases A. The Relationship Between the Inquest and Any Criminal Prosecution The HSE will usually conduct an investigation into a workplace death, and the police may well become involved. Although the number of corporate manslaughter prosecutions has, until recently, been very low, there has been an increase in the past two or three years. A key issue to deal with in workplace deaths is therefore the management of the inquest proceedings in the context of any ongoing HSE or CPS investigation and prosecution.

Deaths in the Workplace 497

(i) R v Beedie, Court of Appeal (Criminal Division) 11 March 1997, [1998] QB 356 Keyword: Criminal law This was not a death in the workplace case, but sets out an important principle on the suspension of inquest proceedings where there might be a criminal prosecution. The defendant in this criminal trial was the landlord of a property where a young woman died of carbon monoxide poisoning as a result of a defective gas fire. The HSE prosecuted him for an offence under the HSAW Act 1974; he pleaded guilty and was fined £1,500. At an inquest following his conviction and sentence the coroner required him to give evidence, on the basis that since he had already been prosecuted he would not be prejudiced by answering questions which could incriminate him. A verdict of unlawful killing was returned. However, the police then notified the CPS about the inquest and the defendant was charged with manslaughter. He pleaded guilty, but then appealed on the ground that his original plea of autrefois convict had been wrongly rejected. The Court of Appeal upheld his appeal and quashed the conviction, and commented as follows (at 366–67): We can see no reason why, prior to institution of the summary proceedings, the Crown Prosecution Service should not have been alerted by the police, the Health and Safety Executive or the local authority to the inquiry which was being undertaken into the circumstances leading to the death of this unfortunate young woman. Had this been done, it should have been possible for a sensible joint decision to be reached as to what charges could, and should, have been properly brought against the defendant, and no doubt manslaughter would have been among them. We understand that liaison between the separate prosecuting authorities in the North East has now improved so that the history of the present prosecution should not be repeated in other cases. We venture to express the hope and expectation that a like degree of liaison already exists in other parts of the country.

This difficult situation should not now arise, given the memorandum of understanding (MOU) between the HSE and Coroner’s Society, but it is important to be aware that an inquest into a workplace death should be suspended until all potential prosecutions have been brought, both by the HSE and the CPS.

(ii) R (Wilkinson) v HM Coroner for Greater Manchester South District High Court, 11 October 2012, [2012] EWHC 2755 (Admin), [2013] CP Rep 5 Keywords: Unlawful killing, criminal law Whilst driving on a motorway in bad weather conditions, the claimant’s vehicle spun out of control and killed a vehicle recovery technician (Dennis Livesley) on the hard shoulder. The claimant was not prosecuted because there was no evidence that the accident had been caused by her driving rather than by snow and ice on the carriageway. The coroner directed the jury that they could return a verdict of unlawful killing if they were sure that the offence of causing death by careless driving had been committed. His view was that where a death has arisen from the commission of a criminal offence, then it could properly be described as ‘unlawful killing’. The claimant sought a judicial review of the verdict of unlawful killing that the jury returned.

498 Alasdair Henderson

The High Court reviewed the authorities on both unlawful killing and driving offences, before concluding as follows: 63. In our judgment, the main purpose of having a verdict of unlawful killing is to distinguish between those cases where there has been an accident of some kind (where, of course, someone may be to blame for it, even with some degree of criminality) and those cases where it would be an abuse of language to describe the events leading to death as simply an accident. Someone killed by murder, manslaughter or infanticide is killed either intentionally or by some obviously criminal state of mind on the part of, or some negligence of the grossest kind by, the author of the killing. Someone killed by careless driving is killed as a result of an accident arising from, or at least contributed to by, the actions of the careless driver. Those actions may give rise to criminal consequences, but given the essential purpose and scope of an inquest, it is neither necessary nor appropriate to investigate and record that conclusion. 64. Applying those basic tenets of coroner law leads to the principled conclusion that causing death by careless or inconsiderate driving should not be treated as ‘unlawful killing’ for the purposes of the conclusion of an inquest whatever conclusion may be reached in other contexts. … 70. We conclude, therefore, that the verdict of unlawful killing is restricted to murder, manslaughter (including corporate manslaughter) and infanticide. … 81. For completeness we would add that there is nothing in the forthcoming Coroners and Justice Act 2009 which affects the verdict of unlawful killing.

Thus where the elements of corporate manslaughter are present a conclusion of unlawful killing may be appropriate, but other prosecutions (for breaches of health and safety legislation, for instance) will not, it seems, give rise to the possibility of an unlawful killing conclusion.

(iii) R (Manning) v Director of Public Prosecutions Administrative Court, 17 May 2000, [2001] QB 330, [2000] Inquest LR 133 Keywords: Criminal law, conclusions The claimants’ brother died whilst under restraint in prison awaiting trial. His death was investigated by police and referred to the CPS, who decided there was not enough evidence to prosecute the prison officers. At the inquest the jury returned a verdict of unlawful killing, but on reviewing this the CPS decided again that they would not prosecute. The claimants applied for judicial review of that decision. Lord Bingham, giving the judgment of the Court, quashed the CPS decision, commenting that: 33 … the right to life is the most fundamental of all human rights. It is put at the forefront of the Convention. The power to derogate from it is very limited. The death of a person in the custody of the state must always arouse concern, as recognised by section 8(1)(c), (3)(b) and (6) of the Coroners Act 1988 [NB: now section 7 of the CJA 2009], and if the death resulted from violence inflicted by agents of the state that concern must be profound. The holding of an inquest in public by an independent judicial official, the coroner, in which interested parties are able to participate

Deaths in the Workplace 499 must in our view be regarded as a full and effective inquiry … Where such an inquest following a proper direction to the jury culminates in a lawful verdict of unlawful killing implicating a person who, although not named in the verdict, is clearly identified, who is living and whose whereabouts are known, the ordinary expectation would naturally be that a prosecution would follow. In the absence of compelling grounds for not giving reasons, we would expect the Director to give reasons in such a case: to meet the reasonable expectation of interested parties that either a prosecution would follow or a reasonable explanation for not prosecuting be given, to vindicate the Director’s decision by showing that solid grounds exist for what might otherwise appear to be a surprising or even inexplicable decision and to meet the European Court’s expectation that if a prosecution is not to follow a plausible explanation will be given. We would be very surprised if such a general practice were not welcome to Members of Parliament whose constituents have died in such circumstances. We readily accept that such reasons would have to be drawn with care and skill so as to respect third party and public interests and avoid undue prejudice to those who would have no opportunity to defend themselves. We also accept that time and skill would be needed to prepare a summary which was reasonably brief but did not distort the true basis of the decision. But the number of cases which meet Mr Blake’s conditions is very small (we were told that since 1981, including deaths in police custody, there have been seven such cases), and the time and expense involved could scarcely be greater than that involved in resisting an application for judicial review. In any event it would seem to be wrong in principle to require the citizen to make a complaint of unlawfulness against the Director in order to obtain a response which good administrative practice would in the ordinary course require.

Although this judgment was in the context of a restraint in custody death, given the relatively small number of prosecutions for corporate manslaughter (until recently, at least) it is a reminder that where an inquest reaches a conclusion of unlawful killing that will ordinarily require the CPS to reconsider whether there should be a prosecution of the employer or workplace owner/controller.

B. Expert Evidence (i) Dale v British Coal Corporation (No. 2) Court of Appeal (Civil Division), 18 June 1992, 1992 WL 893894 Keywords: Health and safety at work, civil law, experts This appeal was primarily about whether or not the limitation period should be disapplied in a claim for damages arising out of a workplace accident which had resulted in the amputation of the claimant’s leg. However, in the course of deciding the limitation issue, the Court of Appeal commented on the kind of evidence that is needed when a health and safety and work question arises: … where it is necessary to show that prudent employers customarily adopt specific precautions not taken by the defendants, or that the defendants knew or ought to have known of some special risk peculiar to the plaintiff, this may well have to be established by expert evidence …

Although this was in the context of a civil claim for damages for personal injury, the principle may still apply in an inquest in certain circumstances.

500 Alasdair Henderson

(ii) Pereira Henriques v Luxembourg European Court of Human Rights, 9 May 2006, App no 60255/00 Keywords: Health and safety at work, experts This is a European Court of Human Rights (ECtHR) case which also illustrates the importance of obtaining expert evidence in workplace death cases. The applicants in this case were Portuguese nationals living in Luxembourg. Their husband and father was killed in an accident at work whilst carrying out the demolition of a building, when the wall of the adjacent building collapsed and he was knocked to the ground. On the same day as the incident, an inspector from the labour and mine inspectorate, police officers, an investigating judge and an official from the prosecutor’s office visited the site. The police authorities then drew up reports to be filed in proceedings initiated against the demolition contractor on charges of manslaughter and offences under health and safety legislation. Some three months later, the inspectorate submitted a report to the prosecutor’s office on the circumstances of the accident, which stated that the prosecutor’s office had refused to accept the inspector’s proposal to obtain an expert’s report. The investigating authorities could not reach a unanimous conclusion as to the reasons why the wall had collapsed and the prosecutor’s office decided to discontinue the proceedings. Mr Henriques’ family brought a claim against the relevant managers from the demolition contractor for having involuntarily caused Mr Henriques’ death through failing to adhere to minimum health and safety standards, However, the claim was refused because under Article 115 of the Social Insurance Code, victims or their families were not entitled to bring claims for damages except where an accident at work was caused intentionally. They then brought an application in the ECtHR, which held, inter alia, that by deciding not to accept the proposal of the inspector to obtain an expert’s report, the prosecutor’s office had prevented the clarification of certain grey areas in the case that had remained following the preliminary investigation. The prosecution could not therefore be regarded as having ensured that the cause of death was established and that those responsible were held to account. In the Court’s view, it had been particularly important for the prosecutor’s office to conduct a thorough investigation, since it must have known that the deceased’s family would be unable, under Article 115, to bring a civil claim to seek explanations from the contractors as to their actions and omissions. Accordingly, the Court concluded that the investigation had not been ‘effective’ in the case and therefore held that there had been a violation of Article 2.

Part Three

After the Inquest

502

25 Reports to Prevent Further Deaths CAROLINE CROSS AND ISABEL MCARDLE

I. Overview A Report to Prevent Future Deaths (also known as a ‘PFD report’) is exactly what its name suggests: it is a report written by the coroner highlighting concerns that future deaths might occur and requesting that appropriate remedial action be taken. It is sent to organisations or persons that have the power to take preventative action. It is the coroner’s only power to prevent the recurrence of future deaths. Initially, this power was contained in rule 43 of the Coroners Rules 1984. The new regime, in the form of the Coroners and Justice Act 2009 (CJA 2009) and Coroners (Investigations) Regulations 2013 has meant significant changes for coroners’ powers and obligations in relation to prevention of future deaths. The Chief Coroner’s Guidance No 5, ‘Reports to Prevent Future Deaths’1 states that the reports’ importance has been ‘emphasised by their upgrading by Parliament from a rule … to part of the 2009 Act’.2 Rule 43 has been replaced by Schedule 5, paragraph 7 of the CJA 2009, coupled with regulations 28 and 29, to impose a much wider regime in terms of its aims, scope and requirements. Important changes include the imposition of a duty,3 not a power, to take action to prevent future deaths where preconditions are met. The duty arises where a coroner investigates a death, and ‘anything revealed by the investigation gives rise to a concern that circumstances creating a risk of other deaths will occur, or will continue to exist, in the future’ and the coroner considers that action should be taken to prevent the occurrence or continuation of those circumstances.4 The coroner must have considered all documents, evidence and information relevant to the investigation prior to reporting.5 While matters giving rise to concerns will usually stem from evidence given at the inquest, relevant concerns can arise from any stage of the investigation. Provided the preconditions

1 Chief Coroner’s Guidance No 5, ‘Reports to Prevent Future Deaths’, 4 September 2013. (www.judiciary.gov. uk/wp-content/uploads/JCO/Documents/coroners/guidance/guidance-no5-reports-to-prevent-future-deaths. pdf). 2 ibid. 3 CJA 2009, Sch 5, para 7(1). 4 CJA 2009, Sch 5, para 7(1)(b)–(c). 5 2013 Regulations, reg 28(3).

504 Caroline Cross and Isabel McArdle

are met, a coroner may now make a report at any stage of the inquest process, although this will still typically happen at the end of an inquest. Should an urgent need for action be identified earlier however, a coroner can now produce a report prior to concluding the inquest.6 Where the coroner identifies a risk of future death, he is not limited to circumstances similar to the cause of death.7 Under paragraph 7(1)(b) of Schedule 5 of the CJA 2009, ‘anything revealed by the investigation’ will suffice. See further below at Section III.C, ‘Content of the PFD Report’. The recipients of a PFD report must respond in writing within 56 days, unless an extension is granted by the coroner.8 However, the coroner is also now entitled to send a letter instead of a report where matters of concern have arisen during the investigation. The issue does not have to relate to the risk of future deaths.9 All PFD reports must be sent to the Chief Coroner, who then publishes the majority of the reports online by category.10 He also produces a summary report on PFD reports, which provides statistical data.11 It is strongly recommended that Guidance No 5, ‘Reports to Prevent Future Deaths’ be reviewed in its own right, which is attached as an appendix. This chapter is not intended to repeat the Guidance, but to draw out key issues and case law relevant to the area.

II. Legislation and Other Sources Coroners and Justice Act 2009, Schedule 5 7. Action to prevent other deaths (1) Where— (a) a senior coroner has been conducting an investigation under this Part into a person’s death, (b) anything revealed by the investigation gives rise to a concern that circumstances creating a risk of other deaths will occur, or will continue to exist, in the future, and (c) in the coroner’s opinion, action should be taken to prevent the occurrence or continuation of such circumstances, or to eliminate or reduce the risk of death created by such circumstances, the coroner must report the matter to a person who the coroner believes may have power to take such action. (2) A person to whom a senior coroner makes a report under this paragraph must give the senior coroner a written response to it. (3) A copy of a report under this paragraph, and of the response to it, must be sent to the Chief Coroner. 6

Guidance No 5, ‘Reports to Prevent Future Deaths’, para 13. See ibid paras 17–19. 8 Coroners (Investigations) Regulations 2013, reg 29(4). 9 Guidance No 5, ‘Reports to Prevent Future Deaths’, paras 37–38. 10 www.judiciary.gov.uk/related-offices-and-bodies/office-chief-coroner/pfd-reports/. 11 www.judiciary.gov.uk/related-offices-and-bodies/office-chief-coroner/summary-of-reports-to-pfds/. 7

Reports to Prevent Further Deaths 505

Coroners (Investigations) Regulations 2013 28. Report on action to prevent other deaths (1) This regulation applies where a coroner is under a duty under paragraph 7(1) of Schedule 5 to make a report to prevent other deaths. (2) In this regulation, a reference to ‘a report’ means a report to prevent other deaths made by the coroner. (3) A report may not be made until the coroner has considered all the documents, evidence and information that in the opinion of the coroner are relevant to the investigation. (4) The coroner— (a) must send a copy of the report to the Chief Coroner and every interested person who in the coroner’s opinion should receive it; (b) must send a copy of the report to the appropriate Local Safeguarding Children Board (which has the same meaning as in regulation 24(3)) where the coroner believes the deceased was under the age of 18; and (c) may send a copy of the report to any other person who the coroner believes may find it useful or of interest. (5) On receipt of a report the Chief Coroner may— (a) publish a copy of the report, or a summary of it, in such manner as the Chief Coroner thinks fit; and (b) send a copy of the report to any person who the Chief Coroner believes may find it useful or of interest. 29. Response to a report on action to prevent other deaths (1) This regulation applies where a person is under a duty to give a response to a report to prevent other deaths made in accordance with paragraph 7(1) of Schedule 5. (2) In this regulation, a reference to ‘a report’ means a report to prevent other deaths made by the coroner. (3) The response to a report must contain— (a) details of any action that has been taken or which it is proposed will be taken by the person giving the response or any other person whether in response to the report or otherwise and set out a timetable of the action taken or proposed to be taken; or (b) an explanation as to why no action is proposed. (4) The response must be provided to the coroner who made the report within 56 days of the date on which the report is sent. (5) The coroner who made the report may extend the period referred to in paragraph (4) (even if an application for extension is made after the time for compliance has expired). (6) On receipt of a response to a report the coroner— (a) must send a copy of the response to the report to the Chief Coroner; (b) must send a copy to any interested persons who in the coroner’s opinion should receive it; and (c) may send a copy of the response to any other person who the coroner believes may find it useful or of interest.

506 Caroline Cross and Isabel McArdle (7) On receipt of a copy under paragraph (6)(a) the Chief Coroner may— (a) publish a copy of the response, or a summary of it, in such manner as the Chief Coroner thinks fit; and (b) send a copy of the response to any person who the Chief Coroner believes may find it useful or of interest (other than a person who has been sent a copy of the response under paragraph (6)(b) or (c)). (8) A person giving a response to a report may make written representations to the coroner about— (a) the release of the response; or (b) the publication of the response. (9) Representations under paragraph (8) must be made to the coroner no later than the time when the response to the report to prevent other deaths is provided to the coroner under paragraph (4). (10) The coroner must pass any representations made under paragraph (8) to the Chief Coroner who may then consider those representations and decide whether there should be any restrictions on the release or publication of the response.

Guidance Chief Coroner’s Guidance No 5, ‘Reports to Prevent Future Deaths’, 4 September 2013.12

III. Cases A. The Role of the PFD Report (i) Re Kelly (Christopher John) (Deceased) (1997) 161 JP 417, [2000] Inquest LR 88 Keywords: Military personnel, PFD reports Captain Christopher Kelly was shot during a live firing exercise in Kenya, and died later from his wounds. An inquest was held with a jury, who returned a verdict of accidental death. The coroner wrote a rule 43 report recommending that a review be undertaken into the methods of communication during live firing exercises. Several months later, the coroner received new evidence from an officer who alleged serious breaches of safety practices and procedures, in particular the wearing of body armour. The coroner applied to quash the inquisition and to hold a fresh inquest on the basis that there had been no complete public examination of the live firing exercises and the new evidence cast doubt on the verdict. Further, his rule 43 report ‘would have been different or fuller had Major Kennedy’s evidence been available at the inquest’.13 12 The Chief Coroner has also provided practical guidance to coroners on completing the form (Guidance 5a) and a template form with an example of a completed form (Annex A: Forms—Reports to Prevent Future Deaths). See www.judiciary.gov.uk/related-offices-and-bodies/office-chief-coroner/guidance-law-sheets/ coroners-guidance/. 13 Re Kelly (Deceased) (1997) 161 JP 417, Inquest LR [2000] 88 at para 8.

Reports to Prevent Further Deaths 507

The application was dismissed on a number of grounds. As to the rule 43 issue, Pill LJ stated: 27. The coroner made recommendations under para 43 of the 1984 Rules as he was entitled to do. The recommendations involved a review of methods of communication during live firing exercises. A coroner’s power under r43 is a valuable one in the public interest. It is however ancillary to the inquest procedure and not its mainspring. In circumstances such as the present, I cannot regard the fact that the recommendations might be different or fuller if more evidence is given as in itself a main ground, or even a significant supporting ground, for holding another inquest.

(ii) R (Lewis) v HM Coroner for the Mid and North Division of the County of Shropshire [2009] EWCA Civ 1403, [2010] 1 WLR 1836, [2009] Inquest LR 294 Keywords: Article 2, PFD reports, prisons To fulfil the state’s procedural duties under Article 2 of the European Convention on Human Rights (ECHR), a PFD report is required where it can be shown that the omissions/actions were ‘clearly relevant to the possible occurrence of ’ further deaths.14 In Lewis, a prisoner who had a history of mental health issues and self-harm hanged himself in his cell at a young offender institution. He was found by a prison officer, who did not have any training in suicide prevention or first aid, or the appropriate equipment to cut him down. Although the prison officer had a key for the cell, he did not enter it but radioed for assistance; however, he used the code for breathing difficulties as opposed to possible loss of life. Consequently, help took longer to arrive than it otherwise would have done, and by the time the prisoner was cut down he was dead. At the inquest the coroner gave the jury a questionnaire, but none of the questions pertained to the action taken after the prisoner had been found hanging. The jury returned a verdict that the deceased had hanged himself with the intention of taking his own life. The coroner wrote a substantial rule 43 report to the Prison Minister, the prison governor and the probation and social services but did not refer to events after the deceased was found hanging. The deceased’s father brought judicial review proceedings, alleging Article 2 ECHR and section 11 of the Coroners Act 1988 had been breached as the jury had not been allowed to express a view on events after the deceased had been found hanging. The judicial review was dismissed at first instance and the claimant appealed. The Court of Appeal dismissed the appeal. However, it held that the lack of proper training, equipment and procedure after the prisoner was found hanging were so clearly relevant to the prevention of future deaths that the coroner was required to report on them under rule 43. As such, this would have satisfied the requirements of Article 2. Sedley LJ stated as follows: 16. … The want of equipment, training and effective procedure which the undisputed evidence revealed was so eloquent of action that needed to be taken to prevent similar fatalities that the coroner cannot have believed otherwise … In such a situation the permissive power—‘may

14 R (Lewis) v HM Coroner for the Mid and North Division of the County of Shropshire [2009] EWCA Civ 1403, [2010] 1 WLR 1836, [2009] Inquest LR 294, para 24.

508 Caroline Cross and Isabel McArdle report’—could only be properly exercised in one way if the purposes of article 2 were to be respected, and that was by making a report on the issue … … 24. … E v United Kingdom (2003) 36 EHRR 519, para 99, lends clear support to the contention that failing to take measures which ‘could have had a real prospect of altering the outcome’ is within the purview of article 2, but tells us nothing about whose responsibility such findings should be. In my judgment, however, once it is established that the facts about OSG Knowles’s equipment, training and use of procedure were so clearly relevant to the possible occurrence of further prison deaths that the coroner was obliged by rule 43 to report on them, the requirements of article 2 are satisfied in this regard. The question whether it should also form part of the jury’s verdict is then a question of domestic law.

Etherton LJ agreed: 38. Although rule 43 is expressed in permissive language, the circumstances, particularly in the light of the article 2 obligation, may be such that the failure to report on a systemic failure would be a breach of duty. 39. It is doubtless with a view to the article 2 obligation that the permissive language of rule 43 has been changed into one of obligation in paragraph 7 of Schedule 5 to the Coroners and Justice Act 2009.

B. Coroner’s Duty The coroner’s duty to write a PFD report is outlined in the Guidance, paragraph 10. In brief the requirements are: (1) The coroner is investigating a person’s death; (2) Something arises by the investigation that gives cause for concern. The coroner ‘is not restricted to matters revealed at the evidence at the inquest’. The threshold for the concern is ‘relatively low’; (3) The concern is that there is a risk of death either occurring or continuing to exist by present or future circumstances; (4) In the coroner’s view, action should be taken to prevent the circumstances occurring again or to reduce the risk of death; (5) If (1)–(4) are satisfied, the coroner is under a duty to report the matter to persons/ organisations who he believes can take action.

(i) R (Lewis) v HM Coroner for the Mid and North Division of the County of Shropshire [2009] EWCA Civ 1403, [2010] 1 WLR 1836, [2009] Inquest LR 294 For the facts of this case see above. Etherton LJ: 37. The scope for comment by a coroner on failures of the system in order to prevent similar deaths in the future is a wide one, and is certainly not limited to circumstances which probably caused or contributed towards the death …

Reports to Prevent Further Deaths 509

(ii) Coroners Inquests into the London Bombings of 7 July 2005, ruling of 6 May 2011 Keywords: PFD reports, unlawful killing An inquest into the circumstances in which 52 people lost their lives on London public transport, when four suicide bombers detonated explosive devices in the summer of 2005, was held before Hallett LJ (sitting as assistant deputy coroner for Inner West London). In the course of doing so, she considered the role of prevention of future death reports.15 First, the condition for the exercise of the power is that the coroner has a concern as to circumstances creating a risk to life. This is a relatively low threshold. The rule does not require, for example, that I have concluded or am satisfied that such circumstances exist. Second, the substance of the concern must be circumstances creating a risk to life, but those circumstances need not already exist at the time of the decision to make a report. The concern must be of a risk to life caused by present or future circumstances. Third, the concern must be based on evidence. Fourth, the coroner must be of the opinion that action should be taken to respond to the concern as to risk to life.

C. Content of the PFD Report The content of the report must state the coroner’s concerns and make recommendations to persons/organisations who can take action. However, paragraph 7(1)(b) of Schedule 5 of the CJA 2009, allows any concerns to form the basis of the report, not only those matters that are (potentially causative) of the death.16 Guidance No 5, ‘Reports to Prevent Future Deaths’ gives the example of a man with a history of serious violence who commits suicide by hanging. However, firearms are found in the deceased’s home, which raises issues about the adequacy of police checks regarding firearms certificates. Sufficient concerns are raised to warrant the coroner sending a PFD report to the police regarding the adequacy of firearms checks. The coroner should not, though, stipulate what specific action should be taken. The report should make general recommendations only.17

(i) Re Clegg (Deceased) (1996) 161 JP 521 (DC) Keywords: PFD reports, medical negligence Lucy Clegg attempted to commit suicide by taking an aspirin overdose. She was taken to hospital where she died 12 hours later. The inquest found she had taken her own life, but did not investigate her treatment in hospital. Her parents complained about the medical care she had received and an investigation was undertaken of the treatment she had received. The review concluded that her treatment had been ‘grossly inadequate’.18 Her parents sought a new inquest, arguing that neglect contributed to her death.

15

Coroners Inquests into the London Bombings of 7 July 2005, ruling of 6 May 2011, 15. Guidance No 5, ‘Reports to Prevent Future Deaths’, paras 16–19. 17 ibid paras 31–34. 18 Re Clegg (Deceased) (1996) 161 JP 521 (DC), para 12. 16

510 Caroline Cross and Isabel McArdle

Phillips LJ and Hooper J dismissed the application. While the coroner had failed to i nvestigate the care she had received, and although the new evidence may lead to a different verdict, it was not in the public interest to hold a new inquest. The systemic deficiencies had been identified and changes made. However, the coroner’s powers to make recommendations were limited. Phillips LJ stated: 31. Again my conclusion is that in a situation such as this a coroner cannot be expected to do more than to make general recommendations and that it must, at the end of the day, be for the National Health Service to give detailed consideration to how their recommendations should be implemented.

(ii) R (British Parachute Association) v Shrewsbury Coroner’s Court (1988) 152 JP 123 Keywords: PFD reports, jury Following a parachuting death, a jury was invited by a coroner to make recommendations on the sport of parachuting, and proceeded to do so. Upon a judicial review challenge, it was held that recommendations by juries were strictly prohibited, to prevent unwarranted or ill informed views being expressed on potentially complex and crucial issues. Concerns relating to the risk of future deaths should be expressed ‘in neutral and non-contentious terms’.

(iii) R (Mowlem plc) v Avon Assistant Deputy Coroner [2005] EWHC 1359 (Admin), [2005] Inquest LR 87 Keywords: PDF reports, jury The deceased was a carpenter employed by the claimant company Mowlem. He was asked to undertake some work on a roof, and was found near the bottom of a ladder bleeding from his nose. He was incoherent and later died in hospital. It was not clear what had happened as there had been no witnesses. An inquest was held with a jury, during which the coroner expressed an opinion on matters other than those specified in rule 36(2). The coroner was judicially reviewed by the claimant, who contended amongst other matters19 that the coroner was in breach of rule 36(2). Collins J struck down the comments as unlawful and made a declaration to that effect: 30. I take the view that, where the coroner admits that he acted unlawfully, there should be good reason to refrain from declaring him to have done so. Otherwise the court may be considered to have sent a curious message of condonation. I also accept the validity of the claimant’s concern that, while the comments remain on the record without declaration of their unlawfulness, they may, like the inquisition itself, influence decisions in relation to the prosecution of the claimant. Furthermore I consider that inherent in the comments was an extra vice beyond their unlawfulness. It was that the coroner made them without affording any opportunity to the claimant, by its solicitor who was present, to make submissions before he did so. The solicitor was unaware of the content of the jury’s note and unaware that any such comments were to be made until he heard

19

See Chapter 26 on Steps after the Inquest, section 4(e) (‘Relief by way of Remission or Substituted decision’).

Reports to Prevent Further Deaths 511 them articulated by the coroner. That extra dimension of impropriety makes this breach of Rule 36(2) much more than technical and leads me formally to declare that the comments were made unlawfully and are of no effect.

(iv) Coroners Inquests into the London Bombings of 7 July 2005, Ruling of 6 May 2011 For the facts see above. Hallett LJ, at 15: [I]t is neither necessary, nor appropriate, for a coroner making a report under rule 43 to identify the necessary remedial action. As is apparent from the final words of rule 43(1), the coroner’s function is to identify points of concern, not to prescribe solutions.

Other Cases Re Kelly (1997) 161 JP 417, [2000] Inquest LR 88—See above. A review of communication methods during live firing exercises, as specified by the coroner, was endorsed by the High Court.

D. Timing The coroner is required to consider all documents, evidence and information that is relevant to the investigation (see regulation 28(3)). However, he is not required to hear all evidence before writing a report, and may send a report before the inquest is concluded.

E. Jury (i) R (Gray) v HM Coroner for West London [1988] QB 467, [1987] 2 WLR 1020 Keywords: Jury, unlawful killing inquest hearing In this case the coroner omitted to include the foreman’s qualification of the verdict of unlawful killing. While the Court re-emphasised the principle that riders may not be added to verdicts insofar as they are irrelevant and/or attribute civil or criminal liability, the coroner in this case was found to be in error because he excluded a rider which was an essential part of the verdict. The deceased had been arrested after a struggle and detained in a police cell in an extremely drunken condition. He inhaled the contents of his stomach and, despite being transferred to hospital, he died. At the inquest, having given directions to the jury, at the jury’s request during the lunch break and in the absence of counsel the coroner passed his summing up notes to the jury to assist in their deliberations. The notes included his summary of the law of unlawful killing and manslaughter by neglect. The jury gave a conclusion of unlawful killing, but the foreman added the following when giving the verdict to the following effect: ‘unlawfully killed attributed to the degree of care after he was overpowered’. The coroner chose not to record these extra words on the disposition.

512 Caroline Cross and Isabel McArdle

Numerous police officers who were involved in the care of the deceased sought by way of judicial review to have the conclusion of the inquest quashed on several grounds, i ncluding that it was a material irregularity for the coroner to have passed his notes to the jury and to have excluded the rider from the disposition. The Court found in their favour, and in so doing (as well as finding that the coroner misdirected the jury in relation to unlawful killing) criticised the coroner’s decision to pass his notes to the jury and to exclude the jury’s qualification from the disposition:20 Coroners quite often, for very good reason, have to refrain from putting upon the inquisition all the foreman says when announcing the jury’s conclusion. By rule he is prevented from doing that. He has to eliminate irrelevant matter and only record what his good sense and experience leads him to conclude is the formal verdict, being one which the jury is entitled in law to find. Here, however, I regret to say that the coroner’s judgment was at fault … Here, the cause found, as I have previously indicated, included the additional words spoken by the foreman, which were, in my opinion, an essential part of a clearly expressed verdict and ought to have been recorded on the inquisition. The implication placed upon them by the coroner, as expressed in his affidavit is, I think, misguided.

(ii) R (British Parachute Association) v Shrewsbury Coroner’s Court (1988) 152 JP 123 Keywords: PFD reports, jury Following a parachuting death, a jury was invited by a coroner to make recommendations on the sport of parachuting, and proceeded to do so. Upon a judicial review challenge, it was held that recommendations by juries were strictly prohibited, to prevent unwarranted or ill- informed views being expressed on potentially complex and crucial issues. Concerns relating to the risk of future deaths should be expressed ‘in neutral and non-contentious terms’.

(iii) R (Middleton) v West Somerset Coroner [2004] UKHL 10, [2004] 2 AC 182, [2004] Inquest LR 17 Keywords: Article 2, prisons See also Chapter 7 on Article 2 for a full summary of the facts. The jury at an inquest into a prisoner’s death returned a verdict that the deceased had killed himself while the balance of his mind was disturbed, but also handed the coroner a note containing factual conclusions indicating that the prison service had failed in its duty of care to the deceased. The coroner had directed the jury on the verdict that their findings were confined to the identity of the deceased and to how, when and where he came by his death, that they could express no opinion on any other matter and that since rule 42 prohibited an inquest verdict being framed in such a way as to appear to determine any questions of criminal liability on the part of a named person or civil liability, they could not return a verdict of neglect. The coroner refused the family’s request to append the note

20

R (Gray) v HM Coroner for West London [1988] QB 467, 478–79.

Reports to Prevent Further Deaths 513

to the inquisition. The deceased’s mother brought judicial review proceedings challenging the coroner’s direction to the jury and decision not to publish the note. The House of Lords found that although a jury should not make recommendations to prevent future deaths, it would be legitimate to leave facts to the jury which are relevant to the reporting power. 38. The power of juries to attach riders of censure or blame was abolished on the recommendation of the Report of the Departmental Committee on Coroners under the chairmanship of Lord Wright (1936) (Cmd 5070). It has not been reintroduced. Juries do not enjoy the power conferred on Scottish sheriffs by the 1976 Act to determine the reasonable precautions, if any, whereby the death might have been avoided (section 6(1)(c)). Under the 1984 Rules, the power is reserved to the coroner to make an appropriate report where he believes that action should be taken to prevent the recurrence of fatalities similar to that in respect of which the inquest is being held … … 45. It follows from the reasoning earlier in this opinion that the judge’s declaration was correctly made, although not for all the reasons he gave. There was no dispute at this inquest whether the deceased had taken his own life. He had left a suicide note, and it was plain that he had. The crux of the argument was whether he should have been recognised as a suicide risk and whether appropriate precautions should have been taken to prevent him taking his own life. The jury’s verdict, although strictly in accordance with the guidance in Ex p Jamieson [1995] QB 1, did not express the jury’s conclusion on these crucial facts. This might have been done by a short and simple verdict (e g ‘The deceased took his own life, in part because the risk of his doing so was not recognised and appropriate precautions were not taken to prevent him doing so’). Or it could have been done by a narrative verdict or a verdict given in answer to the coroner’s questions. By one means or another the jury should, to meet the procedural obligation in article 2, have been permitted to express their conclusion on the central facts explored before them. 46. Had this been done (and the coroner cannot of course be criticised for applying the law as it stood) it would not have been necessary to invite the jury to submit a note. Their assessment of the facts and probabilities would have been clear, and the coroner (having also heard the evidence) could have judged what report he should make under rule 43. As it was, he was not constrained by the jury’s note in what he reported. But the judge was right to view private communications between the jury and the coroner with disfavour, since such a practice must derogate from the public nature of the proceedings.

(iv) R (Lewis) v HM Coroner for the Mid and North Division of the County of Shropshire [2009] EWCA Civ 1403, [2010] 1 WLR 1836, [2009] Inquest LR 294 See above. A jury is not allowed to make findings other than direct or indirect probable causes of death. However, the coroner can leave facts to them, including possible causes of death, which will be relevant to the coroner’s reporting powers. This is particularly useful in controversial deaths. Sedley LJ: 27. For my part I see no reason to doubt the propriety of the ruling we have been shown of the City of London coroner in the case of Heather Claire Waite (3 July 2006) that ‘the jury may, in addition to finding the direct or indirect causes or contributions to the death, also find facts relevant to the exercise of the coroner’s power under rule 43’. This is likely to be more useful— as the House of Lords suggested in Middleton’s case [2004] 2 AC 182, para 20—where facts are

514 Caroline Cross and Isabel McArdle isputed or uncertain. Indeed it may be in such cases that a finding by verdict is a desirable or even d a necessary foundation of any rule 43 report. Here, perhaps unusually, the relevant facts were clear and undisputed … … 29. [The claimant’s arguments for a duty to put all potentially causative circumstances to the jury, irrespective of whether the relevant facts are unclear or in dispute] speaks strongly in favour of a power to take the jury’s verdict on such questions. But I am unable to find a reason of principle for making it a duty. It would be quite different if rule 43 were not there, backed as it always is by the supervisory power of the High Court to ensure that it is properly operated. There would then be a significant failure (assuming that no other satisfactory mechanism existed) to implement the investigative requirement of article 2. But it seems to me in the end that the present legislative allocation of functions between coroner and jury, properly interpreted and properly implemented, will fulfil the functions which Mr Owen correctly submits are required by the Convention to be fulfilled.

Etherton LJ: 40. Returning, then, to the central issue of the proper scope and meaning of section 11(5) of the 1988 Act, the language of section 11(5)(b) is more naturally confined to actual, that is to say, probable causes of death rather than all possible causes, even if less than probable. That also fits naturally into a scheme in which limited issues are left to the jury, but a much wider power is given to the coroner, a professional adjudicator, to report on systemic failures. As I have said, Strasbourg jurisprudence does not require a different conclusion.

This case was relatively straightforward, as the facts were undisputed. However, Guidance No 5, ‘Reports to Prevent Future Deaths’ cites this case and states it is within the coroner’s discretion—not duty—to leave to a jury ‘facts which are relevant to the coroner’s reporting power under paragraph 7 of schedule 5, particularly where those facts are disputed or uncertain’.21

F. Evidence on PFD Reports The Guidance strongly discourages increasing the time of the inquest to hear evidence on matters pertaining to PFD reports. However, it does allow some leeway to hear evidence on issues not relevant to the inquest, but relevant to any PFD report. It suggests that the evidence be heard while the jury is deliberating—see paragraphs 14 and 15.

G. Making Representations Regulation 27 of the Coroners (Inquest) Rules 2013 prevents any person from addressing the coroner or the jury ‘as to the facts of who the deceased was and how, when and where the deceased came by his death’.22 The Guidance states that the scope of the inquest should not be ‘widened for the purpose of hearing representations’ (paragraph 14).

21 22

Guidance No 5, ‘Reports to Prevent Future Deaths’, para 40. This echoes rule 40 of the 1984 Rules.

Reports to Prevent Further Deaths 515

It is possible to comment upon the scope and the approach that the coroner should adopt.23 However, there has been a distinct shift in the law in recent years towards allowing parties to make factual submissions on the appropriateness and content of PFD reports and legal representatives should be prepared to argue these matters.

(i) Lin v Secretary of State for Transport [2006] EWHC 2575 (Admin), [2006] Inquest LR 161 Keywords: PFD reports, Article 2 The parents of the deceased, who was killed in the Potters Bar rail crash in 2002, applied for judicial review. They challenged the decision of the Secretary of State not to hold a public inquiry into the crash, arguing that an inquiry was required in order to comply with the procedural duties under Article 2 ECHR. The Secretary of State submitted that a ‘full’ (ie Middleton) inquest would fulfil the Article 2 obligations. Moses LJ refused the application on the basis that the inquest, combined with the investigations and reports into the accident that had already occurred, would satisfy Article 2. In examining the differences between an inquiry and an inquest, he noted the following:24 It is right to point out that there is freedom to make submissions on the facts at a public inquiry, but those attending an inquest are entitled to make submissions of law in particular as to how the deputy coroner should direct the jury, the form of the questionnaire and as to recommendations pursuant to Rule 43. Such submissions would merely be beating the wind unless they were founded on the facts of the instant inquiry.

According to the Oxford English Dictionary,25 the phrase ‘to beat the wind’ means ‘as a thing devoid of sense or perception, or that is unaffected by what one does to it; usually expressing futile action or effort’.

(ii) R (Cairns) v HM Deputy Coroner for Inner West London [2011] EWHC 2890 (Admin), [2011] Inquest LR 121 Keyword: PFD reports The sister of a cyclist killed in a road traffic accident judicially reviewed the coroner, in part because the coroner failed to make recommendations under rule 43. Silber J, in dismissing the application, concluded that there were no actions that could be taken to prevent this kind of death and a rule 43 letter was therefore inappropriate. However, he noted the family’s counsel had not requested a recommendation under rule 43 at the time of the inquest.26 This judgment lends weight to the view that parties can make submissions on the appropriateness of a PFD report and decisions on PFD reports can be judicially reviewed. Now that the coroner is obliged to make a report where the preconditions are met, not merely subject

23 Coroners Inquests into the London Bombings of 7 July 2005, per LJ Heather Hallett, assistant deputy coroner for Inner West London, ruling of 6 May 2011, transcript, 13. 24 Lin v Secretary of State for Transport [2006] EWHC 2575 (Admin), [2006] Inquest LR 161, para 56. 25 Oxford English Dictionary (2nd edn, OUP, 1989) vol XX, 366. 26 R (Cairns) v HM Deputy Coroner for Inner West London [2011] EWHC 2890 (Admin), [2011] Inquest LR 121, para 77.

516 Caroline Cross and Isabel McArdle

to a discretion as to whether to make such a report, challenges to refusals to make reports to prevent future deaths by way of judicial review may become somewhat easier.

H. Article 2 (i) R (Lewis) v HM Coroner for the Mid and North Division of the County of Shropshire [2009] EWCA Civ 1403, [2010] 1 WLR 1836, [2009] Inquest LR 294 See above, in particular paragraph 24.

(ii) R (Middleton) v West Somerset Coroner [2004] UKHL 10, [2004] 2 AC 182, [2004] Inquest LR 17 For the facts see above. 20. The European court has repeatedly recognised that there are many different ways in which a state may discharge its procedural obligation to investigate under article 2. In England and Wales an inquest is the means by which the state ordinarily discharges that obligation, save where a criminal prosecution intervenes or a public inquiry is ordered into a major accident, usually involving multiple fatalities. To meet the procedural requirement of article 2 an inquest ought ordinarily to culminate in an expression, however brief, of the jury’s conclusion on the disputed factual issues at the heart of the case.

26 Steps After the Inquest DAME PHILIPPA WHIPPLE DBE

I. Overview There is no right of appeal from the decision of a coroner’s court. There is only the possibility of seeking a review by the Administrative Court, part of the Queen’s Bench Division of the High Court.1 Such a review will be by one of two routes: either by way of judicial review, pursuant to section 31 of the Senior Courts Act 1981 (SCA 1981), on the basis that the decision reveals some procedural or substantive illegality; or, less frequently, pursuant to the statutory power contained in section 13 of the Coroners Act 1988, where the Attorney-General authorises an application for such a review (this is known as the Attorney-General’s ‘fiat’).

A. Procedure for Judicial Review It is beyond the scope of this book to set out the procedure for judicial review in detail. Reference should be made to the Civil Procedure Rules (CPR)2 and particularly to CPR Part 54, together with the practice directions to that Part. In addition, there are many specialist works on judicial review which provide guidance on the procedure and substantive law in this area. What follows here is an outline only. (1) Time Limits The starting point is CPR 54.5, which requires the claim form to be filed ‘promptly and in any event not later than 3 months after the grounds to make the claim first arose’. The limitation period is applied strictly and although the Court does have power to extend time under CPR 3.1(2)(a), it will only do so where ‘good reason’ is shown. Even if time is extended, the Court may refuse relief if it concludes that there was undue delay in bringing

1 Administrative Court cases are usually heard by a single judge of the High Court, sometimes by a Divisional Court consisting of two judges: SCA 1981, s 66. 2 Civil Procedure Rules 1998, SI 1998/3132.

518 Dame Philippa Whipple DBE

the claim, such that there is likely to be substantial hardship or prejudice to any person, or detriment to good administration (see section 31(6) of the SCA 1981). (2) Pre-Action Protocol A person contemplating bringing a judicial review should comply with the pre-action protocol for judicial review and send a letter before claim to the proposed defendant (in most cases the coroner), allowing time for a response letter before the claim form is issued (it may be that the response letter will address the issue satisfactorily so that proceedings will not be necessary). The fact that pre-action protocol steps remain outstanding does not affect the time limits for bringing judicial review, and issue should not be delayed beyond the time allowed under CPR 54.5 simply because a response letter has not been received. (3) Claim Form The standard form is N461. The claim form must set out the essentials of the claim but specifically must also state whether there are likely to be any interested parties,3 that the claimant is seeking permission to proceed with a claim for judicial review,4 and what remedy, including any interim relief, the claimant is seeking (the available relief is discussed further below).5 The claim form must also be accompanied by a statement of the grounds for bringing the application for judicial review, a statement of the facts relied on, any application to extend time, any application for other directions, any written evidence that the claimant seeks to rely on, a copy of the order or decision which the claimant seeks to have quashed (in coroners’ cases, usually the coroner’s directions if the issue arises before the inquest; or a copy of the inquisition if it relates to the inquest itself) as well as approved reasons for that order or decision, and any other documents on which the claimant wishes to rely.6 It is possible to apply for an expedited hearing if the matter is urgent, using standard form N463. (4) Available Remedies The Administrative Court may, if it allows the application for judicial review, grant: —— a mandatory order (mandating the defendant to take some particular action. This is frequently the appropriate remedy in coroner challenges where the claimant seeks a fresh inquest); —— a prohibiting order (prohibiting the defendant from taking some particular action); or —— a quashing order (quashing the decision of the coroner, sometimes coupled with a mandating order or directions requiring a fresh decision or direction to be made).7

3

CPR 54.6(1)(a). CPR 54.6(1)(b). 5 CPR 54.6(1)(c). 6 CPR PD 54A, para 5.6. 7 See CPR 54.19. 4

Steps After the Inquest 519

These were previously known as the ‘prerogative remedies’.8 They are peculiar to the Administrative Court and not available in any other jurisdiction. The Administrative Court may also: —— issue an injunction (on an interim or final basis, precluding the defendant from performing some specified action);9 —— issue a declaration (declaring the position in law, which may arise in a challenge to a coroner if he or she has, for example, made a finding of law at a preliminary stage); or —— award damages (which could arise in a coroner’s case if, for example, the coroner is found to have breached a person’s human rights, although that is unlikely as any breach is likely to be addressed and remedied on judicial review). The claim form must identify what remedy is sought and set out the grounds for so doing in some detail. (5) Duty of Candour The parties are under an obligation to disclose all material facts. This includes material which a party could have found out about if appropriate enquiries had been made prior to issuing proceedings. The court takes that duty seriously and a failure to disclose a material fact is a sufficient reason for refusing permission or a remedy, if permission is granted and the case otherwise made out.10 There is no provision within the rules for automatic disclosure of documents. Each party is expected to disclose relevant documents pursuant to the duty of candour, although the court retains a discretion to order disclosure if that is necessary to dispose of the case fairly and justly: see Lord Bingham, Tweed v Parades Commission for Northern Ireland [2006] UKHL 53, paragraph 3. (6) Defendant’s Summary Grounds Any person served with the claim form who wishes to take part in the judicial review must file and serve an acknowledgement of service on standard form N462 and summary grounds of defence.11 Failure to serve an acknowledgement of service will disbar that p erson from taking any part in a hearing to determine whether permission should be given, but will not otherwise bar that person from taking part in a hearing if permission is granted.12 (7) Permission The papers are then put before the High Court judge to determine whether permission to proceed with the judicial review should be granted. The judge will apply the test of ‘arguability’, which is drawn from extensive case law, see for example R (National F ederation

8

Explained at CPR 54.2.1. CPR 54.2. 10 CPR 54.6.2. 11 CPR 54.8. 12 CPR 54.9(1). 9

520 Dame Philippa Whipple DBE

of Self-Employed and Small Businesses Ltd) v Inland Revenue Commissioners [1982] AC 617, 644A: ‘on a quick perusal of the material then available, the court thinks that it discloses what might on further consideration turn out to be an arguable case’. If permission is granted, the court will give directions for the substantive hearing, directing the defendant to file detailed grounds for resisting the claim and any written evidence sought to be relied on.13 The claimant will have an opportunity to answer that evidence.14 If permission is not granted, the claimant will be able to renew the application for permission at an oral hearing unless that application has been certified by the judge on the papers as being ‘totally without merit’, in which case there is no right of renewal at an oral hearing,15 and any application for permission to appeal to the Court of Appeal will be on the papers alone.16 (8) The Substantive Hearing The court will not normally hear oral evidence at the hearing. If either party wishes to rely on oral evidence (including cross-examination of the other side’s witnesses), that party must apply for a direction to that effect, noting that to permit oral evidence to be given is an exceptional course (Bubb v Wandsworth LBC [2011] EWCA Civ 1285). (9) Standing to Bring Judicial Review A court may not grant permission to bring judicial review unless satisfied that the c laimant has ‘sufficient interest’ in the matter (section 31(3) of the SCA 1981). If permission is granted, standing can be considered again at the substantive hearing to determine whether the claimant has sufficient interest to maintain the claim for a particular remedy: thus whether the claimant has standing is sometimes linked to whether the court should exercise its discretion to grant or refuse a remedy (see R (Presvac Engineering Ltd) v Secretary of State [1991] 4 Admin L Rep 121, 133–34). In cases challenging coroners, the claimant will often be a member of the deceased’s family, and will be directly and personally interested in the matter; such a person has standing. The courts have been increasingly willing to hear challenges brought by public interest groups who have no direct or personal interest in the matter but still have an interest. In determining whether that interest is ‘sufficient’ the courts will consider a variety of factors, including the merits of the challenge, the importance of vindicating the rule of law, the importance of the issue raised, the likely absence of any other responsible challenger, the nature of the breach and the role played by the group or body in respect of the issues in question (see R (World Development Movement Ltd) v Secretary of State [1995] 1 WLR 386). In cases raising issues of wider significance, the court may be willing to allow public interest groups to intervene (see, as an example, R (D) v Secretary of State for the Home Department [2006] EWCA Civ 143, [2006] HRLR 24, where Inquest, a small charitable organisation

13

CPR 54.14(1). See CPR 54.10. 15 CPR 54.12(7), relating to applications issued after 1 July 2013. 16 CPR 52.15(1A). 14

Steps After the Inquest 521

providing advice to the bereaved and others on contentious deaths and their investigation, intervened on the issue of prison investigations into attempted suicides). (10) Funding and Costs Orders Public funding remains available for certain services listed in statute,17 subject to general exclusions, and so long as the judicial review has the potential to produce a benefit for the individual or a member of the individual’s family.18 For those cases which fall outside the scope of public funding within the Legal Aid, Sentencing and Punishment of Offenders Act 2012, there is provision for exceptional funding19 and to this end the Lord Chancellor has published Exceptional Funding Guidance.20 An exceptional case determination can be made under section 10(3) of the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPOA 2012). There are two exceptional funding grounds. The first funding ground allows civil legal aid services which would ordinarily be out of scope to be funded because a failure to provide such funding would breach the individual’s rights under the European Convention on Human Rights (ECHR), or under EU law. The second funding ground allows civil legal aid to be provided for rare cases, where an exceptional case determination may be made that it is appropriate to fund in light of the risk of breach of ECHR or EU rights: the risk of breach must be substantial. In either case, the applicant must qualify under the means and merits tests set out in LASPOA 2012 and secondary legislation.

B. Statutory Reviews A different mechanism for seeking review of a coroner’s decision is by way of a request to the Senior Law Officer, usually the Attorney-General, to refer the matter to the High Court by his ‘fiat’ pursuant to section 13 of the Coroners Act 1988. Section 13 is one of the two sections of the 1988 Act to remain in force after the coming into effect of the Coroners and Justice Act 2009 (CJA 2009). (1) Fiat A ‘fiat’ is a process by which the Attorney-General grants his or her consent to enable persons to commence legal proceedings in the Attorney-General’s name. It can be used in any case where it is said that an inquest should be held or resumed. The statutory review procedure is not subject to the same tight procedural rules as a judicial review. The grounds on which the fiat can be sought are set out in the statute, and extend to instances where the coroner has not held an inquest, wrongly, or where the inquest has taken place but was for some reason deficient.

17

LASPOA 2012, s 9 and Sch 1, Part 1, para 19. ibid para 19(3). 19 LASPOA 2012, s 10. 20 www.justice.gov.uk/downloads/legal-aid/funding-code/chancellors-guide-exceptional-funding- non-inquests.pdf. 18

522 Dame Philippa Whipple DBE

(2) Procedure Any person who is dissatisfied with the lack of inquest or, where an inquest has been held, with that inquest, by reason of some irregularity or (often) because new facts or evidence have come to light, can apply to the Senior Law Office to consider whether to refer the matter to the High Court with a recommendation that there should be an inquest (or a fresh inquest, as relevant). There is no specific procedure laid down for applying to the Attorney-General, and a letter setting out the grounds is sufficient. If the Attorney-General gives his authority, he or the applicant can then make an application to the High Court. The procedure for that part of the process is governed by CPR, Part 8, and see specifically Practice Direction 8A, para 19. (3) Threshold Test The test applied by the Attorney-General, and by the Administrative Court if the AttorneyGeneral does issue a fiat, is whether ‘it is necessary or desirable in the interests of justice’ that an inquest (or fresh inquest) is held (see section 13(1)(b) of the Coroners Act 1988). This mirrors the test which applies when the court considers whether to exercise its discretion on a judicial review to mandate a fresh inquest (see R (Douglas-Williams) v HM Coroner for Southwark [1999] 1 All ER 344).

C. Use of Inquest Evidence in Subsequent Proceedings The inquisition is not admissible in subsequent proceedings as proof of the cause of death. That rule is based on Hollington v F Hewthorn & Co Ltd [1943] KB 587, and is justified on the basis that findings of fact made by another decision maker are not to be admitted in a subsequent trial, because the decision at that trial is to be made by the judge or the jury appointed to hear that trial on the evidence presented to him or them. It is less clear whether evidence gathered for an inquest and put before a coroner (and jury) at an inquest is also inadmissible. Although there are cases which would suggest that such evidence is inadmissible (Bird v Keep [1918] 2 KB 692), more recent authority would tend to suggest that such evidence is admissible, at least in civil proceedings: for a discussion of the principles, see Leggatt J in Rogers v Hoyle [2015] QB 265, upheld by the Court of Appeal at [2013] EWCA Civ 257 (and see below).

II. Legislation and Other Sources Senior Courts Act 1981 31. Application for judicial review (1) An application to the High Court for one or more of the following forms of relief, namely— (a) a mandatory, prohibiting or quashing order; (b) a declaration or injunction under subsection (2); or …

Steps After the Inquest 523 shall be made in accordance with rules of court by a procedure to be known as an application for judicial review. (2) A declaration may be made or an injunction granted under this subsection in any case where an application for judicial review, seeking that relief, has been made and the High Court considers that, having regard to— (a) the nature of the matters in respect of which relief may be granted by [mandatory, prohibiting or quashing orders; (b) the nature of the persons and bodies against whom relief may be granted by such orders; and (c) all the circumstances of the case, it would be just and convenient for the declaration to be made or the injunction to be granted, as the case may be. (2A) The High Court— (a) must refuse to grant relief on an application for judicial review, and (b) may not make an award under subsection (4) on such an application, if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred. (2B) The court may disregard the requirements in subsection (2A)(a) and (b) if it considers that it is appropriate to do so for reasons of exceptional public interest. (2C) If the court grants relief or makes an award in reliance on subsection (2B), the court must certify that the condition in subsection (2B) is satisfied. (3) No application for judicial review shall be made unless the leave of the High Court has been obtained in accordance with rules of court; and the court shall not grant leave to make such an application unless it considers that the applicant has a sufficient interest in the matter to which the application relates. (3C) When considering whether to grant leave to make an application for judicial review, the High Court— (a) may of its own motion consider whether the outcome for the applicant would have been substantially different if the conduct complained of had not occurred, and (b) must consider that question if the defendant asks it to do so. (3D) If, on considering that question, it appears to the High Court to be highly likely that the outcome for the applicant would not have been substantially different, the court must refuse to grant leave. (3E) The court may disregard the requirement in subsection (3D) if it considers that it is appropriate to do so for reasons of exceptional public interest. (3F) If the court grants leave in reliance on subsection (3E), the court must certify that the condition in subsection (3E) is satisfied. (4) On an application for judicial review the High Court may award to the applicant damages, restitution or the recovery of a sum due if— (a) the application includes a claim for such an award arising from any matter to which the application relates; and (b) the court is satisfied that such an award would have been made if the claim had been made in an action begun by the applicant at the time of making the application.

524 Dame Philippa Whipple DBE (5) If, on an application for judicial review, the High Court quashes the decision to which the application relates, it may in addition— (a) remit the matter to the court, tribunal or authority which made the decision, with a direction to reconsider the matter and reach a decision in accordance with the findings of the High Court, or (b) substitute its own decision for the decision in question. (5A) But the power conferred by subsection (5)(b) is exercisable only if— (a) the decision in question was made by a court or tribunal, (b) the decision is quashed on the ground that there has been an error of law, and (c) without the error, there would have been only one decision which the court or tribunal could have reached. (5B) Unless the High Court otherwise directs, a decision substituted by it under subsection (5)(b) has effect as if it were a decision of the relevant court or tribunal. (6) Where the High Court considers that there has been undue delay in making an application for judicial review, the court may refuse to grant— (a) leave for the making of the application; or (b) any relief sought on the application, if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration. (7) Subsection (6) is without prejudice to any enactment or rule of court which has the effect of limiting the time within which an application for judicial review may be made. (8) In this section ‘the conduct complained of ’, in relation to an application for judicial review, means the conduct (or alleged conduct) of the defendant that the applicant claims justifies the High Court in granting relief.

Coroners Act 1988 (As Amended) 13. Order to hold investigation (1) This section applies where, on an application by or under the authority of the Attorney-General, the High Court is satisfied as respects a coroner (‘the coroner concerned’) either— (a) that he refuses or neglects to hold an inquest or an investigation which ought to be held; or (b) where an inquest or an investigation has been held by him, that (whether by reason of fraud, rejection of evidence, irregularity of proceedings, insufficiency of inquiry, the discovery of new facts or evidence or otherwise) it is necessary or desirable in the interests of justice that an investigation (or as the case may by, another investigation) should be held. (2) The High Court may— (a) order an investigation under Part 1 of the Coroners and Justice Act 2009 to be held into the death either— (i) by the coroner concerned; or (ii) by a senior coroner, area coroner or assistant coroner in the same coroner area;

Steps After the Inquest 525 (b) order the coroner concerned to pay such costs of and incidental to the application as to the court may appear just; and (c) where an inquest has been held, quash any inquisition on, or determination or finding made at that inquest. … (4) For the purposes of this section, ‘coroner’ means a coroner appointed under section 1 of this Act, or a senior coroner, area coroner or assistant coroner appointed under the Coroners and Justice Act 2009.

III. Cases A. Judicial Review (1) General Principles The courts will interfere only where there is a real risk of injustice.

(i) R (Douglas-Williams) v Inner London Coroner [1999] 1 All ER 344 Keyword: Judicial review At an inquest following a death in custody the coroner directed the jury on the law of manslaughter and the possible verdict of unlawful killing; he did not leave the jury to consider neglect. The jury returned a majority verdict of accidental death. The deceased’s family challenged this verdict on grounds that the jury had been misdirected. Lord Woolf MR approved earlier guidance in case law (at 347): The court is not to attend to mere informalities, nor to criticise minutely the summing up, or the nature of the evidence or of the procedure. But if the inquest has been so conducted, or the circumstances attending it are such, that there is a real risk that justice has not been done, and a real impairment of the security which right procedure provides that justice is done and is seen to be done, the court ought not to allow the inquisition to stand.

(2) Timing of Application for Judicial Review Issues sometimes arise as to when a judicial review should be brought: if the decision under challenge relates to the conduct of the inquest before it is concluded, much will depend on the type of inquest and the type of decision under challenge.

(i) R (Khan) v HM Coroner for West Hertfordshire [2002] EWHC 302 (Admin), [2008] Inquest LR 200 Keywords: Judicial review, delay The claimant was the wife of S, who died after being detained by police officers on suspicion of a drugs offence. The coroner, after the conclusion of the evidence and after hearing legal

526 Dame Philippa Whipple DBE

submissions, made a ruling that only two verdicts ought to be left to the jury; accident, or an open verdict. He rejected the submission that he should also leave verdicts of unlawful killing, a breach of the deceased’s right to life under Article 2 ECHR, and a verdict of death contributed to by neglect. The coroner adjourned to enable judicial review proceedings to be brought. 3. In adjourning to enable his ruling to be challenged, the coroner acted with great fairness and with a view to avoiding the unsatisfactory position that can arise where an inquest verdict is challenged after the event on the ground that the coroner erred in the verdicts that he left or did not leave to the jury. The course adopted, however, also has disadvantages. The inquest is due to resume on 14–15 March for the coroner to sum up and the jury to reach their verdict. By that time four months will have elapsed since the jury heard the evidence. It is highly undesirable for there to be so long a break at such a stage in the proceedings. A further disadvantage is that the court does not have the benefit of the coroner’s summing up as a means of putting into perspective the pieces of evidence relied on by the parties and of gaining a better understanding of what the coroner regarded as important or unimportant. 4. That suggests to me that this court should entertain considerable caution about entertaining a challenge to an interlocutory ruling of this kind. My concern is heightened by the possibility of further delay if this court’s decision is appealed. In the present case the coroner has indicated through counsel that he will accept whatever ruling is made by this court, but there has been no corresponding indication from the claimant. This is a point to which I shall return at the end of my judgment. Despite those concerns I have decided that in the circumstances of this case, and having heard full argument on the substance, I should not decline to entertain the claim on grounds of inappropriateness but should consider the substance of the case advanced.

(ii) R (Craik) v Wiltshire and Swindon Coroner [2004] EWHC 2653, [2005] 4 All ER 40 Keywords: Judicial review, delay The inquest had related to the death of a man in 1953 following a non-therapeutic experiment at the Ministry of Defence’s chemical defence experimental establishment at Porton Down. Difficult issues on the law relating to manslaughter had been raised. The claimant wished to challenge the coroner’s rulings on the directions to be given to the jury, and sought a stay of the inquest from the Administrative Court to allow that to occur. The stay was refused. 3. … I finish by saying that it must be exceptional for there to be an application to the courts during the course of a Coroner’s inquisition.

The Court went on to hold, however, that: 10. … examination of the previous authorities clearly shows that the court has not sought to define what exceptional circumstances are. That is not surprising. It would be offering a hostage to fortune to endeavour to produce an exhaustive list of those circumstances which the court could properly regard as exceptional in justifying intervention in the proceedings. In my view, each case will be fact-sensitive and this case is no exception.

In that case, the potential delay between the completion of the evidence and the summing up to the jury would have been detrimental to the jury and was sufficient reason for the stay to be refused.

Steps After the Inquest 527

(iii) R (Secretary of State for Foreign and Commonwealth Affairs) v Assistant Deputy Coroner for Inner North London [2013] EWHC 3724 Keywords: Judicial review, public interest immunity, delay Alexander Litvinenko had died in London in November 2006 after ingesting a radioactive isotope called Polonium-210; arrest warrants had been issued for two Russian nationals, but the Russian state had extradited neither to the UK and neither had in consequence been put on trial. The Secretary of State challenged the coroner’s pre-inquest decision that certain material covered by a public interest immunity (PII) certificate signed by the Secretary of State on national security grounds should be disclosed to the interested parties. The Court acceded to that challenge and quashed the coroner’s decision. The Court declined to remit the matter to the coroner because, on the correct approach, the only rational conclusion was that the material could not be disclosed. In consequence of the Court’s decision, the coroner revised his view as to the scope of the inquest, excluding the issues of preventability and Russian state responsibility from the scope of the inquest. This was plainly a judicial review which could not await the inquest itself, because it was material to the scope and form the inquest itself would take. The coroner subsequently suspended the inquest in accordance with paragraph 3 of Schedule 1 of the CJA 2009, while a public inquiry established under the Inquiries Act 2005 proceeded.21 (3) Grounds for Seeking Judicial Review There are many different ways in which challenges to a coroner may arise, and many different grounds which may be argued. Some specific areas of challenge are set out elsewhere in this book. The following is an outline of some of the areas where challenges commonly arise, to illustrate the ambit of judicial review as a remedy for an error of law in the context of an inquest. (a) Refusing to Hold an Inquest

(i) R (Touche) v Inner London North Coroner [2001] EWCA Civ 383, [2001] QB 1206 Keywords: Neglect, unnatural death The deceased died after giving birth by caesarean section under spinal anaesthetic. Her husband (the applicant) sought judicial review of the coroner’s refusal to hold an inquest into her death. The Court of Appeal upheld the Divisional Court, which quashed the

21 Rulings of 18 December 2013 at www.litvinenkoinquest.org/wp-content/uploads/2012/09/LitvinenkoRuling-FINAL-17-12-13-50104562_1.pdf; and ruling of 31 July 2014 at www.litvinenkoinquiry.org/wp-content/ uploads/2014/07/Suspension-of-Inquest-and-Opening-of-Public-Inquiry.pdf. See also Chapter 16 on inquest vs inquiry.

528 Dame Philippa Whipple DBE

c oroner’s decision, on the basis that there was reasonable cause to suspect that the hospital’s failure had caused the death, so that the death was ‘unnatural’. Simon Brown LJ said: … upon such material as is presently available to the coroner he could not properly decide otherwise than that there is reasonable cause to suspect that Mrs Touche’s death was (a) at least contributed to by ‘neglect’ (narrowly defined as by Ex p Jamieson) and thus (b) unnatural (as would necessarily follow from Ex p Thomas).

(b) Refusing to Summon a Jury

(i) R (Peach) v Her Majesty’s Coroner at Hammersmith, (Nos 1 and 2) [1980] QB 211 Keywords: Judicial review, jury The Court quashed the coroner’s ruling that it was not necessary to summon a jury. This case is discussed further under Chapter 11 on the jury.

(ii) R (Paul) v Deputy Coroner of the Queen’s Household and Assistant Deputy Coroner for Surrey [2007] EWHC 408 (Admin), [2008] QB 172 Keywords: Judicial review, jury The Court quashed the coroner’s decision not to summon a jury for the inquest into the death of Diana, Princess of Wales. See Chapter 11 on the jury for a case summary. (c) Procedural Unfairness The coroner has an obligation to conduct an inquest which is procedurally fair.

(i) R (Bentley) v HM Coroner District of Avon [2001] EWHC Admin 170 Keyword: Judicial review The deceased died of a drugs overdose while staying at a bail hostel pending a criminal trial for possession of drugs. The coroner refused the family’s request to adjourn the inquest, refused to disclose the post-mortem report and toxicological results, or the list of witnesses intended to be called together with witness statements and other documentation relevant to the inquest. The coroner then refused a further application for adjournment at the hearing, to enable further witnesses to be called on issues relating to the extent of drug use at the bail hostel. The coroner went on to record a verdict of accidental death due to drug overdose. Sullivan J held that ‘[t]here is an overriding obligation to conduct the inquest in a fair manner’.22 He quashed the inquisition and ordered a fresh inquest, as a result of the unfairness in the coroner’s refusal to disclose relevant documents and witness statements to the interested parties in advance of the inquest.

22

R (Bentley) v HM Coroner District of Avon [2001] EWHC Admin 170, para 63.

Steps After the Inquest 529

(d) Misdirection Where juries are empanelled to hear inquests, the coroner has the same obligation in relation to jury management as would apply to the Crown Court judge in a criminal trial.

(i) Clayton v HM Coroner for South Yorkshire (East District) and Others [2005] EWHC 1196 (Admin), [2005] Inquest LR 110, [2005] ACD 97 Keyword: Jury The claimant brought an application to quash an inquisition of 22 October 2003, returning an open verdict on the claimant’s son who had died of heart failure in the course of an arrest by members of the South Yorkshire Police on 4 August 2000, and to procure a new inquest. The claimant adduced evidence that the day after the inquest, the deceased’s brother was told by a jury member who approached him at the shop where he worked that the ‘man in the suit’—evidently the coroner’s officer—had entered the jury room and told them that they must come back with a verdict ‘by the end of the day’. In a supplementary statement the deceased’s brother stated that the words used by the juror were ‘by 5pm’. The claimant argued that the coroner and his officer improperly pressed the jury to deliver a verdict with the result that the open verdict that they finally handed down by a minority of seven to two ought not to stand, and that a fresh inquest should be ordered. The application for judicial review was dismissed. The Court considered the status of coroners’ courts generally. 9. … The time is past when coroners’ courts could be regarded as an anachronism with practices and standards that would not be acceptable elsewhere in the system of justice. With the coming into force of the Human Rights Act 1998, in the case of any death occurring after 2 October 2000 the inquest has become a means by which the state fulfils its positive obligation under art.2 ECHR to investigate objectively and publicly any death in the hands of the police or prison service: see R (on the application of Amin) v Home Secretary [2003 UKHL 51, [2004] 1 AC 653, [2003] 4 All ER 1264; Keenan v United Kingdom (2001) BHRC 319. There is no good reason, for the law to be less scrupulous in relation to a coroner than to a judge in a criminal court in matters of jury management. The Luce Report on Death Certification and Investigation (Cm 5831), which has been accepted in principle by government, takes a similar view. (Per Sedley LJ.)

(4) Remedy in Judicial Review The Court has a discretion whether to grant or refuse a remedy, even if the claimant succeeds in establishing that the coroner or jury has made an error of law. The Court will exercise its discretion taking account of all the facts and circumstances of the case. The remedies available if the judicial review is successful include an order quashing the original inquisition, ordering a fresh inquest, or revising the verdict. Section 31 of the SCA 1981 was amended by the Criminal Justice and Courts Act 2015 to put on a statutory footing the general principle that relief will not be granted unless it is likely to lead to a different outcome. So, sub-section 2A now requires the Court to refuse relief ‘if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred’. Sub-sections 3C and 3D require the court to consider the same test at the permission stage, subject to an ‘exceptional public interest’ disapplication at sub-section 3E. The cases below pre-date these statutory amendments.

530 Dame Philippa Whipple DBE

(a) Discretion to Grant Relief

(i) R (McCurbin) v Wolverhampton Coroner [1990] 2 All ER 759, 768 [1990] 1 WLR 719, 730 Keywords: Error of law, relief The deceased had died during a violent struggle with two police officers. The coroner had directed the jury in terms which included discussion of recklessness and gross negligence, neither of which was applicable on the facts. The claimant argued that this amounted to a misdirection. Lord Woolf MR held that the misdirection, if it was one, made no difference to the outcome because the jury’s verdict (of death by misadventure) demonstrated that the jury was satisfied, on balance of probabilities, that the death resulted from misadventure and not an unlawful act by the police officers involved. I turn to the question whether or not the applicant is entitled to relief by way of judicial review. In doing so, I adopt exactly the same approach as was adopted in the court below. Glidewell LJ, having recited the facts, went on to say: ‘On judicial review the test we have to apply is not simply, has there been an error of law. We are concerned to inquire whether the error has or may have resulted in a wrong verdict being entered. If, in our view, on a proper summing up the same verdict would have resulted so that we can be confident that there had been no injustice then the verdict should not be quashed.’ I respectfully agree with that approach. The position here is that, in the case of any application for judicial review, the remedy is discretionary. If, albeit there has been a misdirection but the misdirection has not affected the outcome in any way, the court were to intervene, it would, in my view, be misusing judicial review. Judicial review is required to put right a situation where things have gone wrong and an injustice requires to be remedied. In this case there has been a proper verdict by the coroner’s jury. That being so, there is no call for the court to intervene. In its discretion the court below was right to refuse relief and I would come to exactly the same decision as it did.

(ii) R (Douglas-Williams) v Inner London Coroner [1999] 1 All ER 344 Keywords: Judicial review, neglect This case is summarised above. The Court dismissed the appeal: there had in its view been no error by the coroner. The Court of Appeal gave the following general guidance on when the High Court might exercise its discretion to grant relief:23 When it comes to exercising this discretion I cannot suggest a better test for a court to apply when deciding whether it should give relief than that it should be ‘necessary or desirable to do so in the interest of justice’. The test has to be applied against the background of the statutory functions of an inquest now contained in the 1988 Act and the Coroners Rules 1984, SI 1984/552, and bearing in mind the further guidance given in R v Divine, ex p Walton [1930] 2 KB 29 at 37, [1930] All ER Rep 302 at 308 …

23

Per Lord Woolf MR, R v Inner London South Coroner, ex p Douglas-Williams [1999] 1 All ER 344, 347.

Steps After the Inquest 531

(iii) R (Tristram) v HM Coroner for Swansea and Gower (2000) 164 JP 191, [2000] Inquest LR 45 Keywords: Judicial review, neglect The deceased died in police custody from excessive alcohol and drugs. The Court quashed the inquisition and ordered a fresh inquest because the coroner had misdirected the jury on the meaning of neglect. In determining the appropriate relief, Jackson J said: Both counsel have helpfully drawn my attention to authorities in which this question has been considered. In Re Rapier (deceased) [1988] 1 QB 26, the Divisional Court ordered a fresh inquest to be held into the suicide of a prisoner. In R. v Southwark Coroner, Ex parte Hicks [1987] 1 WLR 1624, the Divisional Court ordered a fresh inquest into the death of a prisoner who suffered from epilepsy and who may not have received adequate treatment. In R. v HM Coroner for North Humberside and Scunthorpe, Ex parte Jamieson [1995] 1 QB 1, the Court of Appeal said this at page 26: ‘It is the duty of the Coroner as the public official responsible for the conduct of inquests, whether he is sitting with a jury or without, to ensure that the relevant facts are fully, fairly and fearlessly investigated. He is bound to recognise the acute public concern rightly aroused when deaths occur in custody. He must ensure that the relevant facts are exposed to public scrutiny, particularly if there is evidence of foul play, abuse or inhumanity.’ One recent case which appears to go in the other direction is R v HM Coroner Inner South L ondon, Ex parte Epsom Health Care NHS Trust [1994] 158 JP 973. In that case the deceased died in custody. The Divisional Court deleted a finding of neglect from the inquest jury’s verdict and declined to order a fresh inquest. In that case, however, there were special circumstances. Amongst these was the fact that the original inquest had lasted 8 days and had been very thorough, and also the fact that the deceased’s family did not want a further inquest. See the judgment of Steyn LJ at page 978. The general tenor of recent authorities supports the conclusion that a fresh inquest is appropriate in a case such as the present. Therefore, the inquisition of 30th January 1998 must be quashed. A fresh inquisition must be held before a different Coroner sitting with a fresh jury.

(iv) R (Anderson) v HM Coroner for Inner North Greater London [2004] EWHC 2729 (Admin) Keywords: Judicial review, unlawful killing The coroner had left the possibility of a verdict of unlawful killing to the jury, investigating the death of Roger Sylvester whilst in police custody. The Court found that the coroner had misdirected the jury on the ingredients for unlawful killing. It was clear from the jury’s verdict that they had regarded the duration of restraint of the deceased as excessive and causative of his death. The Court quashed the jury’s verdict of unlawful killing, which could not be supported on the evidence, but declined to order a fresh inquest, from which n othing would be gained. The narrative part of the verdict remained and sufficiently explained the death.

532 Dame Philippa Whipple DBE

(v) R (P) v Coroner for the District of Avon [2009] EWCA Civ 1367, 112 BMLR 77 Keywords: Judicial review, Article 2 This was a prison death, the investigation of which engaged Article 2. The Court of Appeal concluded that the coroner had wrongly directed the jury by suggesting that they could only return a narrative verdict if they did not return a short form verdict of suicide or accident; the jury should have been given the opportunity to express their findings in a narrative form, whatever view they took in relation to the short-form verdict. Despite that material defect in the coroner’s directions, no relief was granted, because the Prison Ombudsman had since reported and there was evidence that lessons had been learned; thus the lacuna left by the inquest had been filled by the report and the state’s Article 2 investigative o bligation had been fulfilled. (b) Relief by Way of Remission or Substituted Decision If the court is minded to grant relief, it will consider the provisions of section 31(5)(b) of the SCA 1981, read with section 31(5A) which permit the court to remit or to substitute its own decision.

(i) R (O’Connor) v HM Coroner for District of Avon [2009] EWHC 854 (Admin) Keywords: Judicial review, mental health, unlawful killing The inquest related to the death of a six-year-old boy who was thrown from the balcony of a hotel in Crete by his father, following a row between the father and the child’s mother. Before the inquest, the father was acquitted in a Greek criminal court, on the basis of psychiatric evidence produced to that Court indicating temporary insanity. The coroner reached a verdict of unlawful killing, rejecting submissions made on behalf of the father at the inquest that such a verdict was not properly available because the coroner could not be sure that the father was not legally insane at the time. The Court concluded that the coroner had erred in law in failing to consider whether the father was legally insane at the time and granted the application for judicial review. The Court remitted the matter to the coroner for further consideration because the Court was unable to conclude that but for the coroner’s error of law there was only one decision which the coroner could properly have reached on the evidence before him.

(ii) R (Longfield Care Homes Ltd) v HM Coroner for Blackburn [2004] EWHC 2467 (Admin), [2004] Inquest LR 50 Keywords: Judicial review, accident/misadventure, neglect The deceased was an elderly lady with dementia who had fallen from the window in her care home. She had died some hours later of bronchopneumonia, with traumatic fractures to her elbow and pelvis recorded as a secondary cause of death. The coroner had misdirected the jury on the issue of neglect, following which the jury had returned a verdict of accidental death to which neglect contributed. The Court granted the application for

Steps After the Inquest 533

judicial review, quashing the jury’s verdict, and substituted a short narrative verdict which contained no reference to neglect, but which noted the likely acceleration of the deceased’s death by falling through an open window at her care home (see paragraph 31). Mitting J added this: 31. In cases where the death results from more than one cause of different types, a narrative verdict will often be required. It is here. … 32. It follows, for the reasons which I have given, that the inquisition should be quashed and amended so as to incorporate the narrative verdict which I have indicated should be substituted for the conclusion in paragraph 4, ‘accidental death to which neglect contributed’. 33. I should add that I see no good purpose would be served by quashing the verdict and remitting the matter to the coroner to hold a fresh inquest before a fresh jury.

(iii) R (Mowlem plc) v Avon Assistant Deputy Coroner [2005] EWHC 1359, [2005] Inquest LR 87 Keywords: Judicial review, jury, health and safety at work The coroner conceded that words on the inquisition indicating that the deceased had fallen from a ladder were incorrectly included in the inquisition, having been typed in (so it appeared) by a member of the coroner’s staff before the inquisition form was given to the jurors for completion. The Court substituted a narrative which reflected the reasonable determination of the jury. Per Wilson J: 24. In my view the power to substitute most obviously arises in circumstances in which the court is satisfied not only that the words in the inquisition, as certified, do not accurately convey the determination of the coroner or, as the case may be, of the jury but also that there are other words which do accurately convey it. My attention has been drawn to a decision by Mitting J in R (on the application of Longfield Care Homes Ltd) v HM Coroner for Blackburn, [2004] EWHC 2467, 14 October 2004, in which, so it seems to me, my colleague’s justification for extensive substitution for the words in para 4 of the inquisition was that he was satisfied that his favoured words accurately reflected the determination of the jury: see [31] and [40] of his judgment. … 26. I hold, however, that the power to substitute words in an inquisition can, albeit with the greatest caution, be exercised in circumstances broader than those identified in para 24. The bottom line, so it seems to me, is that words can be thus substituted if they are words to which the decision-maker could not object as unreflective of his reasonable determination.

(5) Costs Orders The ordinary rule in judicial review is that costs will follow the event and the unsuccessful party will be ordered to pay the successful party’s reasonable costs.24 The court can in an appropriate case make a protective costs order (PCO) at the outset of the litigation.

24

CPR 44.3(2).

534 Dame Philippa Whipple DBE

An application for such an order should be made in the claim form and the defendant should answer that application in its acknowledgement of service: see the guidance on procedure at CPR 54.6.3.

(i) R (Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192, [2005] 4 All ER 1 Keyword: Funding 74 … (1) A protective costs order may be made at any stage of the proceedings, on such conditions as the court thinks fit, provided that the court is satisfied that: (i) the issues raised are of general public importance; (ii) the public interest requires that those issues should be resolved; (iii) the applicant has no private interest in the outcome of the case; (iv) having regard to the financial resources of the applicant and the respondent(s) and to the amount of costs that are likely to be involved it is fair and just to make the order; (v) if the order is not made the applicant will probably discontinue the proceedings and will be acting reasonably in so doing. (2) If those acting for the applicant are doing so pro bono this will be likely to enhance the merits of the application for a PCO. (3) It is for the court, in its discretion, to decide whether it is fair and just to make the order in the light of the considerations set out above. … 76. … We would rephrase that guidance in these terms in the present context: (i) When making any PCO where the applicant is seeking an order for costs in its favour if it wins, the court should prescribe by way of a capping order a total amount of the recoverable costs which will be inclusive, so far as a CFA-funded party is concerned, of any additional liability, (ii) The purpose of the PCO will be to limit or extinguish the liability of the applicant if it loses, and as a balancing factor the liability of the defendant for the applicant’s costs if the defendant loses will thus be restricted to a reasonably modest amount. The applicant should expect the capping order to restrict it to solicitors’ fees and a fee for a single advocate of junior counsel status that are no more than modest, (iii) The overriding purpose of exercising this jurisdiction is to enable the applicant to present its case to the court with a reasonably competent advocate without being exposed to such serious financial risks that would deter it from advancing a case of general public importance at all, where the court considers that it is in the public interest that an order should be made. The beneficiary of a PCO must not expect the capping order that will accompany the PCO to permit anything other than modest representation, and must arrange its legal representation (when its lawyers are not willing to act pro bono) accordingly.

(ii) R (Litvinenko) v Secretary of State for the Home Department [2013] EWHC 3135 Keywords: Judicial review, funding The widow of the deceased sought a PCO in the course of her judicial review of the Secretary of State’s decision to reject the coroner’s request that a public inquiry should be ordered into the death of the deceased. The Court reviewed the relevant cases specifically in the context of challenges brought in the course of inquests. The Court decided, that the fact that the widow did have a private interest in the outcome of the judicial review was not

Steps After the Inquest 535

sufficient, of itself, to bar the making of a PCO;25 nonetheless, no PCO was warranted, given that the deceased’s widow’s had appreciable assets to meet any costs claim against her, thus it was neither fair nor just to make a PCO in her favour.26 Coroner’s Costs The Court has jurisdiction to order the Coroner to pay costs, whether or not he or she takes part in the proceedings, pursuant to SCA 1981, section 51(1) on a judicial review and pursuant to Coroners Act 1988, section 13 on a statutory review. Coroners are indemnified by their local authority in respect of any costs reasonably incurred in connection with the exercise of their duties as coroner.27 Whether the court will order the coroner to meet the costs of unsuccessfully contesting a judicial review application will depend on the role the coroner takes during such a challenge.

(iii) R (Davies) v Birmingham Deputy Coroner [2004] EWCA Civ 207, 80 BMLR 48 Keywords: Funding, coroner The appeal concerned an inquest into the claimant’s son’s death in prison. The claimant challenged the coroner’s conclusions. She failed before the judge but succeeded on appeal to the Court of Appeal. She sought her costs from the coroner, who had resisted the appeal. The Court of Appeal reviewed the authorities on the making of costs orders against a judicial officer. The following guidance was given (and the judgment in R (Touche) v Inner London North Coroner [2001] EWCA Civ 383, [2001] 2 All ER 752, [2001] QB 1206, must be read subject to this guidance—see Chapter 10 on funding). The Court ordered the coroner to pay the costs of the appeal to the Court of Appeal but not the costs before the judge, noting that she was in receipt of public funding. 47. It will be apparent from this judgment that the answers to the questions I posed in [3], above are: (i) The established practice of the courts was to make no order for costs against an inferior court or tribunal which did not appear before it except when there was a flagrant instance of improper behaviour or when the inferior court or tribunal unreasonably declined or neglected to sign a consent order disposing of the proceedings. (ii) The established practice of the courts was to treat an inferior court or tribunal which resisted an application actively by way of argument in such a way that it made itself an active party to the litigation, as if it was such a party, so that in the normal course of things costs would follow the event. (iii) If, however, an inferior court or tribunal appeared in the proceedings in order to assist the court neutrally on questions of jurisdiction, procedure, specialist case law and such like, the established practice of the courts was to treat it as a neutral party, so that it would not make an order for costs in its favour or an order for costs against it whatever the outcome of the application.

25

R (Litvinenko) v Secretary of State for the Home Department [2013] EWHC 3135, para 25. ibid para 32. 27 Coroners Allowances, Fees and Expenses Regulations 2013, SI 2013/1615, para 17. 26

536 Dame Philippa Whipple DBE (iv) There are, however, a number of important considerations which might tend to make the courts exercise their discretion in a different way today in cases in category (iii), above, so that a successful applicant, like Mr Touche, who has to finance his own litigation without external funding, may be fairly compensated out of a source of public funds and not be put to irrecoverable expense in asserting his rights after a coroner (or other inferior tribunal) has gone wrong in law, and there is no other very obvious candidate available to pay his costs. 48. I do not regard this outcome as at all satisfactory, but it stems from Parliament’s unwillingness to allow a successful applicant to be reimbursed from central funds for the expense to which he has been put when there is no other potential source of public funds available for this purpose. 49. Needless to say, if a coroner, in the light of this judgment, contents himself with signing a witness statement in which he sets out all the relevant facts surrounding the inquest and responds factually to any specific points made by the claimant in an attitude of strict neutrality, he will not be at risk of an adverse order for costs except in the circumstances set out in [47](i), above. In those circumstances the court may be obliged to request the assistance of an advocate to the court, as Simon Brown LJ suggested in Ex p Touche.

(iv) R (Craik) v Wiltshire and Swindon Coroner [2004] EWHC 2653, [2005] 4 All ER 40 Keywords: Unlawful killing, funding See the case summary above. The verdict of unlawful killing was challenged by the Ministry of Defence (MoD). The coroner, concerned that the local authority had already funded the substantial costs of a long inquest, sought a protective costs order in case the local authority was not prepared or able to indemnify him for legal costs in the judicial review. The Court reviewed the principles set out in Davies and Corner House and refused to grant a PCO in the coroner’s favour. Per Collins J: 34. … I see no reason in principle why a PCO should not in an appropriate case extend to protect the position of a defendant. It is unlikely in public law cases that a defendant, being a public body, will be in a position where a PCO is necessary in the interests of justice. But I do not rule out the possibility that that could arise in a given set of circumstances; particularly, perhaps, where an individual has a public law role and has to make a decision in that role and there is, for whatever reason, no protection given to him in relation to costs by any other body or person. I accept that the circumstances where that could arise would be unusual and no doubt exceedingly rare, but the possibility is there. The principles can readily be adapted to fit the relevant circumstances. 35. However, the situation here is different. The coroner has the backing of the county council. Provided he acts reasonably, he will be indemnified and I have no doubt at all that it would be reasonable for him, in the light of the knowledge that the family may well not be able to attend to uphold his decision, to take a more active role than is perhaps usual in these cases. This is an unusual situation where the challenge is brought by a powerful and well-funded claimant. That being so, it is the sort of situation where one can envisage the possibility of a PCO. However, as I have said, the coroner himself is protected and he does not therefore need to be concerned that he will find himself liable to pay any costs if an order is made, provided he acts reasonably and provided that his active role is one that is itself reasonable.

Steps After the Inquest 537

B. Statutory Review The Attorney-General can give a fiat, following which the matter is referred to the High Court for a final determination. The High Court can order an investigation to be held (or a fresh investigation, if appropriate), can quash any inquisition or finding made at an earlier inquest, and can order the coroner to pay such costs of and incidental to the application ‘as to the court may appear just’.28 (1) Nature of the Power

(i) R (Sutovic) v Northern District of Greater London Coroner [2006] EWHC 1095 (Admin), [2006] Inquest LR 104 Keywords: Judicial review, statutory review The claimant sought a new inquest to investigate the death of her son aged 24 in a Belgrade flat on the basis of evidence which had emerged subsequently and had not been fully considered by the coroner at the first inquest. An application for judicial review was issued in parallel with an application for statutory review under section 13 which the AttorneyGeneral had authorised. Per Moses LJ: 54. The power contained in s 13(1)(b) is stated in very broad terms. The necessity or desirability of another inquest may arise by reason of one of the listed matters ‘or otherwise’. Notwithstanding the width of the statutory words, its exercise by courts shows that the factors of central importance are an assessment of the possibility (as opposed to the probability) of a different verdict, the number of shortcomings in the original inquest, and the need to investigate matters raised by new evidence which had not been investigated at the inquest: see Re Rapier [1988] 1 QB 26, 34–35, 37H–38A, 39 per Woolf LJ and Simon Brown J, R v HM Coroner, Lincoln, ex parte Hay 19 February 1987, R v HM Coroner, Coventry, ex parte O’Reilly Times Law Reports 3 April 1996, and R v Assistant Deputy Coroner for the Northern District of London ex parte Bloom [2004] EWHC 3071 (Admin). Ex parte Hay concerned disputed evidence that was before the original inquest, but the dispute in the evidence in Re Rapier arose as a result of evidence that came to light after the inquest. In Bloom’s case there was no criticism of the way the Coroner conducted the inquest but a report in the possession of the deceased’s family which was critical of certain aspects of what the treating doctor did or did not do was not before the coroner and the treating doctor was not crossexamined on the basis of that report. The court thought that the verdict of natural causes might be changed: see para 27. 55. In cases in which the court is satisfied that a different verdict is not possible or doubts that it would be, the fact that the deceased died in custody may be ‘a compelling additional factor’ (R v West Sussex Coroner, ex parte Homberg (1994) 158 JP 357, per Simon Brown LJ Transcript 26 January 1994, p 37) in concluding that a further inquest is necessary or desirable in the interests of justice. This is because of the need (see para 37 above) in such cases for an investigatory regime which will not only expose past violations of obligations under art 2 but also promote measures to prevent or minimise the risk of future violations. The lapse of time since the death

28

Coroners Act 1988, s 13(2).

538 Dame Philippa Whipple DBE is a factor that has generally been seen as a factor against ordering a further inquest (see ex parte Homberg and Re Tabarn 20 January 1998 (Div Court), per Simon Brown LJ Transcript p 10) but this is not always so: see Nicholls v HM Coroner for the City of Liverpool [2001] EWHC 922 (Admin), paras 49–50, 59 per Sullivan J. In R v West Sussex Coroner ex parte Edwards [1991] 156 JP 186, 190 it was stated that a new inquest may be ordered even if there is a high probability that the verdict would be the same.

(ii) R (Howlett) v HM Coroner for the County of Devon [2006] EWHC 2570 (Admin), [2006] Inquest LR 176 Keywords: Judicial review, statutory review Citing the judgment of Moses LJ in Sutovic, the Court ordered a fresh inquest: The following propositions of law are not in doubt: among the material considerations in a case under s 13 are the possibility, and not just the probability, of a different verdict; the number of shortcomings in the original inquest; the need to investigate matters raised by new evidence which had not been investigated at the original inquest; the lapse of time since death, which generally is a factor against ordering a fresh inquest, although not always; and the fact that a new inquest can be ordered, even where it appears to the court that there is a high probability that the original verdict would remain unchanged.

(iii) HM Attorney-General v HM Coroner of South Yorkshire; HM Coroner of West Yorkshire [2012] EWHC 3783 (Admin) Keywords: Judicial review, statutory review The Attorney-General made an application under section 13 of the Coroners Act 1988 for fresh inquests into the deaths of 96 Liverpool supporters at Hillsborough in April 1989.29 The Court ordered fresh inquests. Having noted the relevant authorities, the Lord Chief Justice said: 10. … The single question is whether the interests of justice make a further inquest either necessary or desirable. The interests of justice, as they arise in the coronial process, are undefined, but, dealing with it broadly, it seems to us elementary that the emergence of fresh evidence which may reasonably lead to the conclusion that the substantial truth about how an individual met his death was not revealed at the first inquest, will normally make it both desirable and necessary in the interests of justice for a fresh inquest to be ordered. The decision is not based on problems with process, unless the process adopted at the original inquest has caused justice to be diverted or for the inquiry to be insufficient. What is more, it is not a pre-condition to an order for a further inquest that this court should anticipate that a different verdict to the one already reached will be returned. If a different verdict is likely, then the interests of justice will make it necessary for a fresh inquest to be ordered, but even when significant fresh evidence may serve to confirm the correctness of the earlier verdict, it may sometimes nevertheless be desirable for the full extent of the evidence which tends to confirm the correctness of the

29

One, Anthony Bland, died of his injuries in 1993.

Steps After the Inquest 539 verdict to be publicly revealed. Without minimising the importance of a proper inquest into every death, where a national disaster of the magnitude of the catastrophe which occurred at Hillsborough on 15 April 1989 has occurred, quite apart from the pressing entitlement of the families of the victims of the disaster to the public revelation of the facts, there is a distinct and separate imperative that the community as a whole should be satisfied that, even if belatedly, the truth should emerge.

(2) Limits on the Power

(i) Nathan Jones (on behalf of Sharon Mills and Nathan Jones, the Parents of Mason Jones) v HM Coroner for Gwent v William Tudor [2015] EWHC 3178 (Admin) Keywords: Judicial Review, statutory review Section 13 cannot be used to circumvent the judicial review time limits. The Court refused to order a fresh inquest into the death of five-year old Mason Jones, who died from E-Coli infection having eaten contaminated meat purchased from William Tudor, a local butcher. Mr Tudor had pleaded guilty to various charges of breaching health and safety requirements but had not been charged with manslaughter. The coroner at the original inquest rejected the possibility of an unlawful killing verdict, and delivered a narrative verdict. Subsequently, on the deceased’s parents further representations, the DPP had obtained further legal advice, and in consequence the DPP accepted that manslaughter charges could have been brought, but she declined to reopen the criminal proceedings given that they would doubtless have been dismissed as an abuse of process. The deceased’s parents sought to reopen the inquest under s 13. Elias LJ sitting in the Divisional Court said this: 17. Mr Powell submits that the test under section 13 should simply be whether justice has been done or not. He relies upon comment of Simon Brown J, as he was, in Re Tabarn CO/1387/97 who said, with respect to the predecessor of this section, that ‘there are no longer any absolute principles in play, save only perhaps that the interests of justice must be a cardinal consideration’. Mr Powell also relies upon the following observation of Talbot J in R v Divine ex parte Walton [1930] 2KB 29, 37: “But if the inquest has been so conducted, or the circumstances attending it are such that there is a real risk that justice has not been done, a real impairment of the security which right procedure provides that justice is done and is seen to be done, the Court ought not to allow the inquisition to stand.” 18. I do not accept that these judges were intending to say that the interests of justice would be engaged, and section 13 could be invoked, whenever there appears to be a cogent case for judicial review based on an alleged failure by the Coroner properly to apply the law. They were concerned with the narrower context where something has gone wrong with the process or, for one reason or another, the Coroner has not been in possession of all the material facts. 19. In my judgment, what the applicant is now seeking to do, through this application, is to pursue what is in substance a judicial review application some five years out of time and to secure a fresh inquest without in fact having to establish that there was any error of law by the Coroner which would justify setting aside the original verdict. Mr Powell is suggesting that it is enough that the Coroner may have been acting unlawfully in reaching a conclusion contrary to the evidence. I do not see how the court could properly accede to this application and quash the Coroner’s verdict on that basis.

540 Dame Philippa Whipple DBE

(ii) Susan Flower v HM Coroner for the County of Devon, Plymouth, Torbay and South Devon [2015] EWHC 3666 (Admin) Keywords: Judicial Review, statutory review A fresh inquest cannot be ordered in circumstances where no inquest was ever held or concluded. In this case, the coroner had suspended his original investigations pending criminal proceedings, which resulted in two convictions for murder of the deceased. The coroner did not resume his investigations in light of those convictions. Without the completion of the inquest, required by section 6 on the facts of this case, as it seems to me, the investigation has not been completed and, therefore, has not been ‘held’ for the purposes of section 13(1)(b) of the 1988 Act. (per McCombe LJ, para 15).

However, it was held that the coroner was not, in these circumstances functus officio and it was open to the coroner to reopen the original inquest, which had merely been suspended. (3) Insufficiency of Inquiry

(i) R (O’Reilly) v HM Coroner for Coventry (1996) 160 JP 749 Keywords: Judicial review, statutory review One of the grounds for review under section 13 is that there has been an ‘insufficiency of inquiry’. In a case where the coroner had not resolved possible inconsistencies on the contemporaneous documents, had not disclosed those documents to the family in advance of the inquest, and had not fully investigated the cause of the deceased’s deterioration while in a police cell, the judge (Newman J) said this: As to whether a sufficient inquiry has taken place, which issue the statute expressly raises, I take, as a simple starting point, that an inquiry which leaves too many questions unanswered and too many issues unresolved is not a sufficient inquiry.

(4) Reviewability of Attorney-General’s Decision

(i) R (Halpin) v Attorney-General [2011] EWHC 3759 (Admin) Keywords: Judicial review, statutory review The Attorney-General refused to give an authorization under section 13 for an application to be brought for the inquest into the death of David Kelly, the government scientist and weapons inspector, whose death in July 2003 prompted a public inquiry chaired by Lord Hutton, to be reopened. This led to a challenge by way of judicial review of the refusal, on grounds that the refusal was irrational. The Court refused permission; it was not arguable that the Attorney-General had acted unlawfully. On the issue of whether the Attorney-General’s refusal to give a fiat was itself amenable to judicial review, Nicol J acknowledged the authorities which tended to suggest that the Attorney-General’s decision was not amenable to judicial review but said this: 22. If, hypothetically, there were substantial grounds for considering that the Attorney had acted unlawfully in refusing his consent, it would be an unattractive position, to put it neutrally, if that illegality was beyond the power of the courts to judicially review.

Steps After the Inquest 541

C. Use of Inquest Evidence in Subsequent Proceedings (i) Bird v Keep [1918] 2 KB 692 Keyword: Evidence The County Court judge refused to admit the coroner’s inquisition and certified copy of the entry in the register of deaths which recorded the cause of death as suffocation by smoke following a fire in a warehouse which was bombed by enemy aircraft in 1917. The family sought to rely on a doctor’s deposition recording his evidence to the inquest. The doctor had died since the inquest and was not available to give evidence in the civil proceedings. The evidence and the inquisition were ruled to be inadmissible. Swinfen Eady MR said (at 689 and 699): The coroner’s inquisition is not like a judgment in rem. Nothing is done which is conclusive of any person affected by it. … Under these circumstances I am of opinion that the result of an investigation conducted by the coroner, however valuable for certain purposes, cannot in law be treated as prima facie evidence against any person of the facts found by the jury.

Bankes LJ said (at 704): In my opinion the finding of the coroner’s jury as to the cause of death was not relevant to any issue which the learned county court judge had to determine. He had to decide upon the evidence before him what the cause of death was. It cannot be relevant to that inquiry that he should be informed what a coroner’s jury thought of the matter upon materials which were before them but which were not and could not be placed before the county court judge.

(ii) Hollington v Hewthorne [1943] KB 587 Keyword: Evidence The plaintiff sought to give evidence of the defendant driver’s conviction for careless driving and his statement made to the police by the driver of the plaintiff ’s car, who had since died, in subsequent civil proceedings. The Court of Appeal held both were inadmissible. The position in relation to criminal convictions has since been reversed by the Civil Evidence Act 1968, but the case (and the rule it established) remain part of the common law.

(iii) Rogers v Hoyle [2013] EWHC 1409 (QB), [2014] EWCA Civ 257, [2015] QB 265 Keyword: Evidence The deceased was killed when a vintage bi-plane in which he was a passenger crashed. The executors brought a claim in negligence against the pilot. An issue arose as to whether the

542 Dame Philippa Whipple DBE

report of the Air Accident Investigation Board (AAIB) was admissible. Leggatt J examined the authorities. He said this: 100. Now that the hearsay rule has been abolished in civil proceedings, a record of the evidence given in an earlier case is in principle admissible in later proceedings. Hence it can no longer be an objection to admitting the findings of the earlier court to say that the evidence on which the findings were based is not admissible. For example, if Bird v Keep [1918] 2 KB 692 were decided today, the doctor’s deposition and other evidence which was before the coroner’s court would be admissible in the subsequent civil proceedings. So it would no longer be true that the materials which were before the coroner’s jury could not be placed before the later court.

The Court of Appeal dismissed the defendant’s appeal, agreeing with Leggatt J that the AAIB report was admissible in the civil proceedings, because the judge was entitled to have the expert views of the Board in determining the civil case. Christopher Clarke LJ examined the exclusionary rule in Hollington v Hewthorn, and said this: 35. The rule, at any rate so far as it applies to criminal convictions, has been controversial for years. In Hunter v Chief Constable of the West Midlands Police [1980] QB 283, 319 Lord Denning MR, who had been counsel for the appellant in Hollington v F Hewthorn & Co Ltd [1943] KB 587, described it as ‘beyond doubt … wrongly decided’. In the House of Lords in the same case [1982] AC 529 Lord Diplock said that that was generally considered to be so. In Arthur JS Hall & Co v Simons [2002] 1 AC 615, 702 Lord Hoffmann said that the Court of Appeal in that case was ‘generally thought to have taken the technicalities of the matter too far’. … 39. As the judge rightly recognised the foundation on which the rule must now rest is that findings of fact made by another decision maker are not to be admitted in a subsequent trial because the decision at that trial is to be made by the judge appointed to hear it (‘the trial judge’), and not another. The trial judge must decide the case for himself on the evidence that he receives, and in the light of the submissions on that evidence made to him. To admit evidence of the findings of fact of another person, however distinguished, and however thorough and competent his examination of the issues may have been, risks the decision being made, at least in part, on evidence other than that which the trial judge has heard and in reliance on the opinion of someone who is neither the relevant decision maker nor an expert in any relevant discipline, of which decision making is not one. The opinion of someone who is not the trial judge is, therefore, as a matter of law, irrelevant and not one to which he ought to have regard.

Other Cases R (Doris Shafi) v HM Senior Coroner for East London [2015] EWHC 2106 (Admin)—a fresh inquest was ordered where the coroner had failed to make sufficient enquiry as to whether foreign witnesses would attend in person or by video link, following a death in Dubai which the pathologist was unable to explain. HM Senior Coroner of Cumbria v Ian Smith [2015] EWHC 2465 (Admin)—the Divisional Court ordered a fresh inquest in circumstances where the coroner had failed to perform his central function at an inquest into the death of a 13-month-old baby, Poppi Worthington, at which no evidence was called, but the coroner took account of the findings of fact in parallel family proceedings, which were embargoed, so there was no evidence called as to

Steps After the Inquest 543

how the baby had died. The fresh inquiry was ordered to take place after the fact-finding in the Family Division. Thompson v HM Assistant Coroner for County Durham and Darlington [2015] EWHC 1781 (Admin)—the inquest was quashed on the grounds of insufficiency of inquiry, following a referral by the Attorney-General under section 13. R (Squier) v General Medical Council [2015] EWHC 299 (Admin)—the claimant challenged the decision of the General Medical Council (GMC) to admit previous court judgments in which she had been criticised, as evidence in professional conduct proceedings brought against her by the GMC. At paragraph 42, Ouseley J confirmed that the ‘modern expression’ of the rule in Hollington v Hewthorne is found in Hoyle v Rogers [2014] EWCA Civ 257, paragraph 39 in the judgment of Clarke LJ (passage cited above). Smith v HM Coroner for Cornwall [2015] EWHC 3475 (Admin) an application under s 13 was allowed by the Divisional Court, and a fresh inquest was ordered into the deaths of two men from carbon monoxide poisoning resulting from a faulty grill, in circumstances where important issues as to the state of knowledge of the manufacturer about the fault had not been explored at the original inquest.

544

APPENDICES

STATUTES Coroners and Justice Act 2009 Chapter 1—INVESTIGATIONS INTO DEATHS Duty to investigate 1 Duty to investigate certain deaths (1) A senior coroner who is made aware that the body of a deceased person is within that coroner’s area must as soon as practicable conduct an investigation into the person’s death if subsection (2) applies. (2) This subsection applies if the coroner has reason to suspect that— (a) the deceased died a violent or unnatural death, (b) the cause of death is unknown, or (c) the deceased died while in custody or otherwise in state detention. (3) Subsection (1) is subject to sections 2 to 4. (4) A senior coroner who has reason to believe that— (a) a death has occurred in or near the coroner’s area, (b) the circumstances of the death are such that there should be an investigation into it, and (c) the duty to conduct an investigation into the death under subsection (1) does not arise because of the destruction, loss or absence of the body, may report the matter to the Chief Coroner. (5) On receiving a report under subsection (4) the Chief Coroner may direct a senior coroner (who does not have to be the one who made the report) to conduct an investigation into the death. (6) The coroner to whom a direction is given under subsection (5) must conduct an investigation into the death as soon as practicable. This is subject to section 3. (7) A senior coroner may make whatever enquiries seem necessary in order to decide— (a) whether the duty under subsection (1) arises; (b) whether the power under subsection (4) arises. (8) This Chapter is subject to Schedule 10.

546 Appendices

Investigation by other coroner 2 Request for other coroner to conduct investigation (1) A senior coroner (coroner A) who is under a duty under section 1(1) to conduct an investigation into a person’s death may request a senior coroner for another area (coroner B) to conduct the investigation. (2) If coroner B agrees to conduct the investigation, that coroner (and not coroner A) must conduct the investigation, and must do so as soon as practicable. (3) Subsection (2) does not apply if a direction concerning the investigation is given under section 3 before coroner B agrees to conduct the investigation. (4) Subsection (2) is subject to— (a) any direction concerning the investigation that is given under section 3 after the agreement, and (b) section 4. (5) A senior coroner must give to the Chief Coroner notice in writing of any request made by him or her under subsection (1), stating whether or not the other coroner agreed to it. 3 Direction for other coroner to conduct investigation (1) The Chief Coroner may direct a senior coroner (coroner B) to conduct an investigation under this Part into a person’s death even though, apart from the direction, a different senior coroner (coroner A) would be under a duty to conduct it. (2) Where a direction is given under this section, coroner B (and not coroner A) must conduct the investigation, and must do so as soon as practicable. (3) Subsection (2) is subject to— (a) any subsequent direction concerning the investigation that is given under this section, and (b) section 4. (4) The Chief Coroner must give notice in writing of a direction under this section to coroner A. (5) A reference in this section to conducting an investigation, in the case of an investigation that has already begun, is to be read as a reference to continuing to conduct the investigation. Discontinuance of investigation 4 Discontinuance where cause of death revealed by post-mortem examination (1) A senior coroner who is responsible for conducting an investigation under this Part into a person’s death must discontinue the investigation if— (a) an examination under section 14 reveals the cause of death before the coroner has begun holding an inquest into the death, and (b) the coroner thinks that it is not necessary to continue the investigation. (2) Subsection (1) does not apply if the coroner has reason to suspect that the deceased— (a) died a violent or unnatural death, or (b) died while in custody or otherwise in state detention.

Appendices 547

(3) Where a senior coroner discontinues an investigation into a death under this section— (a) the coroner may not hold an inquest into the death; (b) no determination or finding under section 10(1) may be made in respect of the death. This subsection does not prevent a fresh investigation under this Part from being conducted into the death. (4) A senior coroner who discontinues an investigation into a death under this section must, if requested to do so in writing by an interested person, give to that person as soon as practicable a written explanation as to why the investigation was discontinued. Purpose of investigation 5 Matters to be ascertained (1) The purpose of an investigation under this Part into a person’s death is to ascertain— (a) who the deceased was; (b) how, when and where the deceased came by his or her death; (c) the particulars (if any) required by the 1953 Act to be registered concerning the death. (2) Where necessary in order to avoid a breach of any Convention rights (within the meaning of the Human Rights Act 1998 (c. 42)), the purpose mentioned in subsection (1)(b) is to be read as including the purpose of ascertaining in what circumstances the deceased came by his or her death. (3) Neither the senior coroner conducting an investigation under this Part into a person’s death nor the jury (if there is one) may express any opinion on any matter other than— (a) the questions mentioned in subsection (1)(a) and (b) (read with subsection (2) where applicable); (b) the particulars mentioned in subsection (1)(c). This is subject to paragraph 7 of Schedule 5. Inquests 6 Duty to hold inquest A senior coroner who conducts an investigation under this Part into a person’s death must (as part of the investigation) hold an inquest into the death. This is subject to section 4(3)(a). 7 Whether jury required (1) An inquest into a death must be held without a jury unless subsection (2) or (3) applies. (2) An inquest into a death must be held with a jury if the senior coroner has reason to suspect— (a) that the deceased died while in custody or otherwise in state detention, and that either—

548 Appendices

(i) the death was a violent or unnatural one, or (ii) the cause of death is unknown, (b) that the death resulted from an act or omission of— (i) a police officer, or (ii) a member of a service police force, in the purported execution of the officer’s or member’s duty as such, or (c) that the death was caused by a notifiable accident, poisoning or disease. (3) An inquest into a death may be held with a jury if the senior coroner thinks that there is sufficient reason for doing so. (4) For the purposes of subsection (2)(c) an accident, poisoning or disease is “notifiable” if notice of it is required under any Act to be given— (a) to a government department, (b) to an inspector or other officer of a government department, or (c) to an inspector appointed under section 19 of the Health and Safety at Work etc. Act 1974 (c. 37). 8 Assembling a jury (1) The jury at an inquest (where there is a jury) is to consist of seven, eight, nine, ten or eleven persons. (2) For the purpose of summoning a jury, a senior coroner may summon persons (whether within or without the coroner area for which that coroner is appointed) to attend at the time and place stated in the summons. (3) Once assembled, the members of a jury are to be sworn by or before the coroner to inquire into the death of the deceased and to give a true determination according to the evidence. (4) Only a person who is qualified to serve as a juror in the Crown Court, the High Court and the county court, under section 1 of the Juries Act 1974, is qualified to serve as a juror at an inquest. (5) The senior coroner may put to a person summoned under this section any questions that appear necessary to establish whether or not the person is qualified to serve as a juror at an inquest. 9 Determinations and findings by jury (1) Subject to subsection (2), a determination or finding that a jury is required to make under section 10(1) must be unanimous. (2) A determination or finding need not be unanimous if— (a) only one or two of the jury do not agree on it, and (b) the jury has deliberated for a period of time that the senior coroner thinks reasonable in view of the nature and complexity of the case. Before accepting a determination or finding not agreed on by all the members of the jury, the coroner must require one of them to announce publicly how many agreed and how many did not. (3) If the members of the jury, or the number of members required by subsection (2)(a), do not agree on a determination or finding, the coroner may discharge the jury and another one may be summoned in its place.

Appendices 549

9A. Surrender of electronic communications devices by jurors (1) A senior coroner holding an inquest with a jury may order the members of the jury to surrender any electronic communications devices for a period. (2) An order may be made only if the senior coroner considers that— (a) the order is necessary or expedient in the interests of justice, and (b) the terms of the order are a proportionate means of safeguarding those interests. (3) An order may only specify a period during which the members of the jury are— (a) in the building in which the inquest is being heard, (b) in other accommodation provided at the senior coroner’s request, (c) visiting a place in accordance with arrangements made for the purposes of the inquest, or (d) travelling to or from a place mentioned in paragraph (b) or (c). (4) An order may be made subject to exceptions. (5) It is a contempt of court for a member of a jury to fail to surrender an electronic communications device in accordance with an order under this section. (6) Proceedings for a contempt of court under this section may only be instituted on the motion of a senior coroner having jurisdiction to deal with it. (7) In this section, “electronic communications device” means a device that is designed or adapted for a use which consists of or includes the sending or receiving of signals that are transmitted by means of an electronic communications network (as defined in section 32 of the Communications Act 2003). 9B Surrender of electronic communications devices: powers of search etc (1) This section applies where an order has been made under section 9A in respect of the members of a jury. (2) A coroners’ officer must, if ordered to do so by a senior coroner, search a member of the jury in order to determine whether the juror has failed to surrender an electronic communications device in accordance with the order. (3) Subsection (2) does not authorise the officer to require a person to remove clothing other than a coat, jacket, headgear, gloves or footwear. (4) If the search reveals a device which is required by the order to be surrendered— (a) the officer must ask the juror to surrender the device, and (b) if the juror refuses to do so, the officer may seize it. (5) Subject to subsection (6), a coroners’ officer may retain an article which was surrendered or seized under subsection (4) until the end of the period specified in the order. (6) If a coroners’ officer reasonably believes that the device may be evidence of, or in relation to, an offence, the officer may retain it until the later of— (a) the end of the period specified in the order, and (b) the end of such period as will enable the officer to draw it to the attention of a constable. (7) A coroners’ officer may not retain a device under subsection (6)(b) for a period of more than 24 hours from the time when it was surrendered or seized. (8) The Lord Chancellor may by regulations make provision as to— (a) the provision of written information about coroners’ officers’ powers of retention to persons by whom devices have been surrendered, or from whom devices have been seized, under this section,

550 Appendices

(b) the keeping of records about devices which have been surrendered or seized under this section, (c) the period for which unclaimed devices have to be kept, and (d) the disposal of unclaimed devices at the end of that period. (9) In this section— “electronic communications device” has the same meaning as in section 9A; “unclaimed device” means a device retained under this section which has not been returned and whose return has not been requested by a person entitled to it. Outcome of investigation 10 Determinations and findings to be made (1) After hearing the evidence at an inquest into a death, the senior coroner (if there is no jury) or the jury (if there is one) must— (a) make a determination as to the questions mentioned in section 5(1)(a) and (b) (read with section 5(2) where applicable), and (b) if particulars are required by the 1953 Act to be registered concerning the death, make a finding as to those particulars. (2) A determination under subsection (1)(a) may not be framed in such a way as to appear to determine any question of— (a) criminal liability on the part of a named person, or (b) civil liability. (3) In subsection (2) “criminal liability” includes liability in respect of a service offence. Suspension 11 Duty or power to suspend or resume investigations Schedule 1 makes provision about suspension and resumption of investigations. 12 Investigation in Scotland (1) This section applies to the death outside the United Kingdom of a person within subsection (2) or (3). (2) A person is within this subsection if at the time of the death the person was subject to service law by virtue of section 367 of the Armed Forces Act 2006 (c. 52) and was engaged in— (a) active service, (b) activities carried on in preparation for, or directly in support of, active service, or (c) training carried out in order to improve or maintain the effectiveness of those engaged in active service. (3) A person is within this subsection if at the time of the death the person was not subject to service law but— (a) by virtue of paragraph 7 of Schedule 15 to the Armed Forces Act 2006 was a civilian subject to service discipline, and (b) was accompanying persons subject to service law who were engaged in active service.

Appendices 551

(4) If— (a) the person’s body is within Scotland or is expected to be brought to the United Kingdom, and (b) the Secretary of State thinks that it may be appropriate for the circumstances of the death to be investigated under the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 (c. 14), the Secretary of State may notify the Lord Advocate accordingly. (5) If— (a) the person’s body is within England and Wales, and (b) the Chief Coroner thinks that it may be appropriate for the circumstances of the death to be investigated under that Act, the Chief Coroner may notify the Lord Advocate accordingly. 13 Investigation in England and Wales despite body being brought to Scotland (1) The Chief Coroner may direct a senior coroner to conduct an investigation into a person’s death if— (a) the deceased is a person within subsection (2) or (3) of section 12, (b) the Lord Advocate has been notified under subsection (4) or (5) of that section in relation to the death, (c) the body of the deceased has been brought to Scotland, (d) no inquiry into the circumstances of the death under the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 (c. 14) has been held (or any such inquiry that has been started has not been concluded), (e) the Lord Advocate notifies the Chief Coroner that, in the Lord Advocate’s view, it may be appropriate for an investigation under this Part into the death to be conducted, and (f) the Chief Coroner has reason to suspect that— (i) the deceased died a violent or unnatural death, (ii) the cause of death is unknown, or (iii) the deceased died while in custody or otherwise in state detention. (2) The coroner to whom a direction is given under subsection (1) must conduct an investigation into the death as soon as practicable. This is subject to section 3. Ancillary powers of coroners in relation to deaths 14 Post-mortem examinations (1) A senior coroner may request a suitable practitioner to make a post-mortem examination of a body if— (a) the coroner is responsible for conducting an investigation under this Part into the death of the person in question, or (b) a post-mortem examination is necessary to enable the coroner to decide whether the death is one into which the coroner has a duty under section 1(1) to conduct an investigation. (2) A request under subsection (1) may specify the kind of examination to be made.

552 Appendices

(3) For the purposes of subsection (1) a person is a suitable practitioner if he or she— (a) is a registered medical practitioner, or (b) in a case where a particular kind of examination is requested, a practitioner of a description designated by the Chief Coroner as suitable to make examinations of that kind. (4) Where a person informs the senior coroner that, in the informant’s opinion, death was caused wholly or partly by the improper or negligent treatment of a registered medical practitioner or other person, that practitioner or other person— (a) must not make, or assist at, an examination under this section of the body, but (b) is entitled to be represented at such an examination. This subsection has no effect as regards a post-mortem examination already made. (5) A person who makes a post-mortem examination under this section must as soon as practicable report the result of the examination to the senior coroner in whatever form the coroner requires. 15 Power to remove body (1) A senior coroner who— (a) is responsible for conducting an investigation under this Part into a person’s death, or (b) needs to request a post-mortem examination under section 14 in order to decide whether the death is one into which the coroner has a duty under section 1(1) to conduct an investigation, may order the body to be removed to any suitable place. (2) That place may be within the coroner’s area or elsewhere. (3) The senior coroner may not order the removal of a body under this section to a place provided by a person who has not consented to its being removed there. This does not apply to a place within the coroner’s area that is provided by a district council, a county council, a county borough council, a London borough council or the Common Council. Miscellaneous 16 Investigations lasting more than a year (1) A senior coroner who is conducting an investigation under this Part into a person’s death that has not been completed or discontinued within a year— (a) must notify the Chief Coroner of that fact; (b) must notify the Chief Coroner of the date on which the investigation is completed or discontinued. (2) In subsection (1) “within a year” means within the period of 12 months beginning with the day on which the coroner was made aware that the person’s body was within the coroner’s area. (3) The Chief Coroner must keep a register of notifications given under subsection (1).

Appendices 553

17 Monitoring of and training for investigations into deaths of service personnel (1) The Chief Coroner must— (a) monitor investigations under this Part into service deaths; (b) secure that coroners conducting such investigations are suitably trained to do so. (2) In this section “service death” means the death of a person who at the time of the death was subject to service law by virtue of section 367 of the Armed Forces Act 2006 (c. 52) and was engaged in— (a) active service, (b) activities carried on in preparation for, or directly in support of, active service, or (c) training carried out in order to improve or maintain the effectiveness of those engaged in active service. Chapter 2—NOTIFICATION, CERTIFICATION AND REGISTRATION OF DEATHS1 18 Notification by medical practitioner to senior coroner (1) The Lord Chancellor may make regulations requiring a registered medical practitioner, in prescribed cases or circumstances, to notify a senior coroner of a death of which the practitioner is aware. (2) Before making regulations under this section the Lord Chancellor must consult— (a) the Secretary of State for Health, and (b) the Chief Coroner. 19 Medical examiners (1) Primary Care Trusts (in England) and Local Health Boards (in Wales) must appoint persons as medical examiners to discharge the functions conferred on medical examiners by or under this Chapter. (2) Each Trust or Board must— (a) appoint enough medical examiners, and make available enough funds and other resources, to enable those functions to be discharged in its area; (b) monitor the performance of medical examiners appointed by the Trust or Board by reference to any standards or levels of performance that those examiners are expected to attain. (3) A person may be appointed as a medical examiner only if, at the time of the appointment, he or she— (a) is a registered medical practitioner and has been throughout the previous 5 years, and (b) practises as such or has done within the previous 5 years. (4) The appropriate Minister may by regulations make— (a) provision about the terms of appointment of medical examiners and about termination of appointment; 1

Chapter 2, sections 18 to 21 are not yet in force.

554 Appendices

(5)

(6)

(7)

(8)

(9)

(b) provision for the payment to medical examiners of remuneration, expenses, fees, compensation for termination of appointment, pensions, allowances or gratuities; (c) provision as to training— (i) to be undertaken as a precondition for appointment as a medical examiner; (ii) to be undertaken by medical examiners; (d) provision about the procedure to be followed in connection with the exercise of functions by medical examiners; (e) provision conferring functions on medical examiners; (f) provision for functions of medical examiners to be exercised, during a period of emergency, by persons not meeting the criteria in subsection (3). Nothing in this section, or in regulations under this section, gives a Primary Care Trust or a Local Health Board any role in relation to the way in which medical examiners exercise their professional judgment as medical practitioners. In this section “the appropriate Minister” means— (a) in relation to England, the Secretary of State; (b) in relation to Wales, the Welsh Ministers. For the purposes of this section a “period of emergency” is a period certified as such by the Secretary of State on the basis that there is or has been, or is about to be, an event or situation involving or causing, or having the potential to cause, a substantial loss of human life throughout, or in any part of, England and Wales. A certification under subsection (7) must specify— (a) the date when the period of emergency begins, and (b) the date when it is to end. Subsection (8)(b) does not prevent the Secretary of State certifying a new period of emergency in respect of the same event or situation.

20 Medical certificate of cause of death (1) The Secretary of State may by regulations make the following provision in relation to a death that is required to be registered under Part 2 of the 1953 Act— (a) provision requiring a registered medical practitioner who attended the deceased before his or her death (an “attending practitioner”)— (i) to prepare a certificate stating the cause of death to the best of the practitioner’s knowledge and belief (an “attending practitioner’s certificate”), or (ii) where the practitioner is unable to establish the cause of death, to refer the case to a senior coroner; (b) provision requiring a copy of an attending practitioner’s certificate to be given to a medical examiner; (c) provision allowing an attending practitioner, if invited to do so by the medical examiner or a registrar, to issue a fresh attending practitioner’s certificate superseding the existing one; (d) provision requiring a senior coroner to refer a case to a medical examiner; (e) provision requiring a medical examiner to make whatever enquiries appear to be necessary in order to confirm or establish the cause of death;

Appendices 555

(f) provision requiring a medical examiner to whom a copy of an attending practitioner’s certificate has been given— (i) to confirm the cause of death stated on the certificate and to notify a registrar that the cause of death has been confirmed, or (ii) where the examiner is unable to confirm the cause of death, to refer the case to a senior coroner; (g) provision for an attending practitioner’s certificate, once the cause of death has been confirmed as mentioned in paragraph (f), to be given to a registrar; (h) provision requiring a medical examiner to whom a case has been referred by a senior coroner— (i) to issue a certificate stating the cause of death to the best of the examiner’s knowledge and belief (a “medical examiner’s certificate”) and to notify a registrar that the certificate has been issued, or (ii) where the examiner is unable to establish the cause of the death, to refer the case back to the coroner; (i) provision for a medical examiner’s certificate to be given to a registrar; (j) provision allowing a medical examiner, if invited to do so by the registrar, to issue a fresh medical examiner’s certificate superseding the existing one; (k) provision requiring a medical examiner or someone acting on behalf of a medical examiner— (i) to discuss the cause of death with the informant or with some other person whom the examiner considers appropriate, and (ii) to give him or her the opportunity to mention any matter that might cause a senior coroner to think that the death should be investigated under section 1; (l) provision for confirmation to be given in writing, either by the informant or by a person of a prescribed description, that the requirement referred to in paragraph (k) has been complied with; (m) provision prescribing forms (including the form of an attending practitioner’s certificate and of a medical examiner’s certificate) for use by persons exercising functions under the regulations, and requiring the forms to be made available to those persons; (n) provision requiring the Chief Medical Officer of the Department of Health, after consulting— (i) the Officer with corresponding functions in relation to Wales, (ii) the Registrar General, and (iii) the Statistics Board, to issue guidance as to how certificates and other forms under the regulations are to be completed; (o) provision for certificates or other forms under the regulations to be signed or otherwise authenticated. (2) Regulations under subsection (1) imposing a requirement— (a) may prescribe a period within which the requirement is to be complied with; (b) may prescribe cases or circumstances in which the requirement does, or does not, apply (and may, in particular, provide for the requirement not to apply during a period of emergency).

556 Appendices

(3) The power under subsection (1)(m) to prescribe forms is exercisable only after consultation with— (a) the Welsh Ministers, (b) the Registrar General, and (c) the Statistics Board. (4) Regulations under subsection (1) may provide for functions that would otherwise be exercisable by a registered medical practitioner who attended the deceased before his or her death to be exercisable, during a period of emergency, by a registered medical practitioner who did not do so. (5) The appropriate Minister may by regulations provide for a fee to be payable to a Primary Care Trust or Local Health Board in respect of— (a) a medical examiner’s confirmation of the cause of death stated on an attending practitioner’s certificate, or (b) the issue of a medical examiner’s certificate. (6) Section 7 of the Cremation Act 1902 (c. 8) (regulations as to burning) does not require the Secretary of State to make regulations, or to include any provision in regulations, if or to the extent that he or she thinks it unnecessary to do so in consequence of— (a) provision made by regulations under this Chapter or by Coroners regulations, or (b) provision contained in, or made by regulations under, Part 2 of the 1953 Act as amended by Part 1 of Schedule 21 to this Act. (7) In this section— “the appropriate Minister” has the same meaning as in section 19; “informant”, in relation to a death, means the person who gave particulars concerning the death to the registrar under section 16 or 17 of the 1953 Act; “period of emergency” has the same meaning as in section 19; “the Statistics Board” means the body corporate established by section 1 of the Statistics and Registration Service Act 2007 (c. 18). 21 National Medical Examiner (1) The Secretary of State may appoint a person as National Medical Examiner. (2) The National Medical Examiner is to have— (a) the function of issuing guidance to medical examiners with a view to securing that they carry out their functions in an effective and proportionate manner; (b) any further functions conferred by regulations made by the Secretary of State. (3) Before appointing a person as National Medical Examiner or making regulations under subsection (2)(b), the Secretary of State must consult the Welsh Ministers. (4) A person may be appointed as National Medical Examiner only if, at the time of the appointment, he or she— (a) is a registered medical practitioner and has been throughout the previous 5 years, and (b) practises as such or has done within the previous 5 years. (5) The appointment of a person as National Medical Examiner is to be on whatever terms and conditions the Secretary of State thinks appropriate.

Appendices 557

(6) The Secretary of State may pay to the National Medical Examiner— (a) amounts determined by the Secretary of State by way of remuneration or allowances; (b) amounts determined by the Secretary of State towards expenses incurred in performing functions as such. (7) The National Medical Examiner may amend or revoke any guidance issued under subsection (2)(a). (8) The National Medical Examiner must consult the Welsh Ministers before issuing, amending or revoking any such guidance. (9) Medical examiners must have regard to any such guidance in carrying out their functions. Chapter 3—CORONERS AREAS, APPOINTMENTS ETC 22 Coroner areas Schedule 2 makes provision about coroner areas. 23 Appointment etc of senior coroners, area coroners and assistant coroners Schedule 3 makes provision about the appointment etc of senior coroners, area coroners and assistant coroners. 24 Provision of staff and accommodation (1) The relevant authority for a coroner area— (a) must secure the provision of whatever officers and other staff are needed by the coroners for that area to carry out their functions; (b) must provide, or secure the provision of, accommodation that is appropriate to the needs of those coroners in carrying out their functions; (c) must maintain, or secure the maintenance of, accommodation provided under paragraph (b). (2) Subsection (1)(a) applies to a particular coroner area only if, or to the extent that, the necessary officers and other staff for that area are not provided by a local policing body. (3) Subsection (1)(c) does not apply in relation to accommodation the maintenance of which is the responsibility of a person other than the relevant authority in question. (4) In deciding how to discharge its duties under subsection (1)(b) and (c), the relevant authority for a coroner area must take into account the views of the senior coroner for that area. (5) A reference in subsection (1) to the coroners for an area is to the senior coroner, and any area coroners or assistant coroners, for that area. Chapter 4—INVESTIGATIONS CONCERNING TREASURE […]

558 Appendices

Chapter 5—FURTHER PROVISION TO DO WITH INVESTIGATIONS AND DEATHS 32 Powers of coroners Schedule 5 makes provision about powers of senior coroners and the Coroner for Treasure. 33 Offences Schedule 6 makes provision about offences relating to jurors, witnesses and evidence. 34 Allowances, fees and expenses Schedule 7 makes provision about allowances, fees and expenses. 35 Chief Coroner and Deputy Chief Coroners (1) Schedule 8 makes provision about the appointment etc of the Chief Coroner and Deputy Chief Coroners. (2) The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005 (c. 4)) to exercise any of the functions of the Lord Chief Justice under Schedule 8. 36 Reports and advice to the Lord Chancellor from the Chief Coroner (1) The Chief Coroner must give the Lord Chancellor a report for each calendar year. (2) The report must cover— (a) matters that the Chief Coroner wishes to bring to the attention of the Lord Chancellor; (b) matters that the Lord Chancellor has asked the Chief Coroner to cover in the report. (3) The report must contain an assessment for the year of the consistency of standards between coroners areas. (4) The report must also contain a summary for the year of— (a) the number and length of— (i) investigations in respect of which notification was given under subsection (1)(a) or (b) of section 16, and (ii) investigations that were not concluded or discontinued by the end of the year and in respect of which notification was given under subsection (1)(a) of that section in a previous year, as well as the reasons for the length of those investigations and the measures taken with a view to keeping them from being unnecessarily lengthy; (c) the matters recorded under paragraph 4 of Schedule 5; (d) the matters reported under paragraph 7 of that Schedule and the responses given under sub-paragraph (2) of that paragraph. (5) A report for a year under this section must be given to the Lord Chancellor by 1 July in the following year. (6) The Lord Chancellor must publish each report given under this section and must lay a copy of it before each House of Parliament.

Appendices 559

(7) If requested to do so by the Lord Chancellor, the Chief Coroner must give advice to the Lord Chancellor about particular matters relating to the operation of the coroner system. 37 Regulations about training (1) The Chief Coroner may, with the agreement of the Lord Chancellor, make regulations about the training of— (a) senior coroners, area coroners and assistant coroners; (b) the Coroner for Treasure and Assistant Coroners for Treasure; (c) coroners’ officers and other staff assisting persons within paragraph (a) or (b). (2) The regulations may (in particular) make provision as to— (a) the kind of training to be undertaken; (b) the amount of training to be undertaken; (c) the frequency with which it is to be undertaken. 38 Medical Adviser and Deputy Medical Advisers to the Chief Coroner 2 Schedule 9 makes provision about the appointment etc of the Medical Adviser to the Chief Coroner and Deputy Medical Advisers to the Chief Coroner. […] 41 Investigation by Chief Coroner or Coroner for Treasure or by judge, former judge or former coroner Schedule 10 makes provision for an investigation into a person’s death to be carried out by the Chief Coroner or the Coroner for Treasure or by a judge, former judge or former coroner. 42 Guidance by the Lord Chancellor (1) The Lord Chancellor may issue guidance about the way in which the coroner system is expected to operate in relation to interested persons within section 47(2)(a). (2) Guidance issued under this section may include provision— (a) about the way in which such persons are able to participate in investigations under this Part into deaths; (b) about the role of coroners’ officers and other staff in helping such persons to participate in investigations. This subsection is not to be read as limiting the power in subsection (1). (3) The Lord Chancellor may amend or revoke any guidance issued under this section. (4) The Lord Chancellor must consult the Chief Coroner before issuing, amending or revoking any guidance under this section.

2

Section 38 is not yet in force.

560 Appendices

Chapter 7—SUPPLEMENTARY Regulations and rules 43 Coroners regulations (1) The Lord Chancellor may make regulations— (a) for regulating the practice and procedure at or in connection with investigations under this Part (other than the practice and procedure at or in connection with inquests); (b) for regulating the practice and procedure at or in connection with examinations under section 14; (c) for regulating the practice and procedure at or in connection with exhumations under paragraph 6 of Schedule 5. Regulations under this section are referred to in this Part as “Coroners regulations”. (2) Coroners regulations may be made only if— (a) the Lord Chief Justice, or (b) a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005 (c. 4)) nominated for the purposes of this subsection by the Lord Chief Justice, agrees to the making of the regulations. (3) Coroners regulations may make— (a) provision for the discharge of an investigation (including provision as to fresh investigations following discharge); (b) provision for or in connection with the suspension or resumption of investigations; (c) provision for the delegation by a senior coroner, area coroner or assistant coroner of any of his or her functions; (d) provision allowing information to be disclosed or requiring information to be given; (e) provision giving to the Lord Chancellor or the Chief Coroner power to require information from senior coroners; (f) provision requiring a summary of specified information given to the Chief Coroner by virtue of paragraph (e) to be included in reports under section 36; (g) provision with respect to the preservation, retention, release or disposal of bodies (including provision with respect to reinterment and with respect to the issue of orders authorising burial); (h) provision, in relation to authorisations under paragraph 3 of Schedule 5 or entry and search under such authorisations, equivalent to that made by any provision of sections 15 and 16 of the Police and Criminal Evidence Act 1984 (c. 60), subject to any modifications the Lord Chancellor thinks appropriate; (i) provision, in relation to the power of seizure conferred by paragraph 3(4)(a) of that Schedule, equivalent to that made by any provision of section 21 of that Act, subject to any modifications the Lord Chancellor thinks appropriate; (j) provision about reports under paragraph 7 of that Schedule.

Appendices 561

This subsection is not to be read as limiting the power in subsection (1). (4) Coroners regulations may apply any provisions of Coroners rules. (5) Where Coroners regulations apply any provisions of Coroners rules, those provisions— (a) may be applied to any extent; (b) may be applied with or without modifications; (c) may be applied as amended from time to time. 44 Treasure regulations […] 45 Coroners rules (1) Rules may be made in accordance with Part 1 of Schedule 1 to the Constitutional Reform Act 2005— (a) for regulating the practice and procedure at or in connection with inquests. Rules under this section are referred to in this Part as “Coroners rules”. (2) Coroners rules may make— (a) provision about evidence (including provision requiring evidence to be given on oath except in prescribed cases); (b) provision for the discharge of a jury (including provision as to the summoning of new juries following discharge); (c) provision for the discharge of an inquest (including provision as to fresh inquests following discharge); (d) provision for or in connection with the adjournment or resumption of inquests; (e) provision for a senior coroner to have power to give a direction, in proceedings at an inquest, allowing or requiring a name or other matter not to be disclosed except to persons specified in the direction; (f) provision for the delegation by— (i) a senior coroner, area coroner or assistant coroner, or (ii) the Coroner for Treasure (or an Assistant Coroner for Treasure), of any of his or her functions, except for functions that involve making judicial decisions or exercising any judicial discretion; (g) provision with respect to the disclosure of information; (h) provision for persons to be excused from service as jurors at inquests in cases specified in the rules; (i) provision as to the matters to be taken into account by the Coroner for Treasure in deciding whether to hold an inquest concerning an object that is or may be treasure or treasure trove. (3) Coroners rules may make provision conferring power on a senior coroner or the Coroner for Treasure— (a) to give a direction excluding specified persons from an inquest, or part of an inquest, if the coroner is of the opinion that the interests of national security so require;

562 Appendices

(b) to give a direction excluding specified persons from an inquest during the giving of evidence by a witness under the age of 18, if the coroner is of the opinion that doing so would be likely to improve the quality of the witness’s evidence. In this subsection “specified persons” means persons of a description specified in the direction, or all persons except those of a description specified in the direction. (4) Subsections (2) and (3) are not to be read as limiting the power in subsection (1). (5) Coroners rules may apply— (a) any provisions of Coroners regulations; (b) any provisions of Treasure regulations; (c) any rules of court that relate to proceedings other than inquests. (6) Where any provisions or rules are applied by virtue of subsection (5), they may be applied— (a) to any extent; (b) with or without modifications; (c) as amended from time to time. (7) Practice directions may be given in accordance with Part 1 of Schedule 2 to the Constitutional Reform Act 2005 on any matter that could otherwise be included in Coroners rules. (8) Coroners rules may, instead of providing for a matter, refer to provision made or to be made by practice directions under subsection (7). (9) In this section “rules of court” include any provision governing the practice and procedure of a court that is made by or under an enactment. Coroner of the Queen’s Household 46 Abolition of the office of coroner of the Queen’s household The office of coroner of the Queen’s household is abolished. 47 “Interested person” (1) This section applies for the purposes of this Part. (2) “Interested person”, in relation to a deceased person or an investigation or inquest under this Part into a person’s death, means— (a) a spouse, civil partner, partner, parent, child, brother, sister, grandparent, grandchild, child of a brother or sister, stepfather, stepmother, half-brother or half-sister; (b) a personal representative of the deceased; (c) a medical examiner exercising functions in relation to the death of the deceased; (d) a beneficiary under a policy of insurance issued on the life of the deceased; (e) the insurer who issued such a policy of insurance; (f) a person who may by any act or omission have caused or contributed to the death of the deceased, or whose employee or agent may have done so; (g) in a case where the death may have been caused by— (i) an injury received in the course of an employment, or

Appendices 563

(3)

(4)

(5)

(6)

(7)

(ii) a disease prescribed under section 108 of the Social Security Contributions and Benefits Act 1992 (benefit in respect of prescribed industrial diseases, etc), a representative of a trade union of which the deceased was a member at the time of death; (h) a person appointed by, or representative of, an enforcing authority; (i) where subsection (3) applies, a chief constable; (j) where subsection (4) applies, a Provost Marshal; (k) where subsection (5) applies, the Independent Police Complaints Commission; (l) a person appointed by a Government department to attend an inquest into the death or to assist in, or provide evidence for the purposes of, an investigation into the death under this Part; (m) any other person who the senior coroner thinks has a sufficient interest. This subsection applies where it appears that a person has or may have committed— (a) a homicide offence involving the death of the deceased, or (b) a related offence (other than a service offence). This subsection applies where it appears that a person has or may have committed— (a) the service equivalent of a homicide offence involving the death of the deceased, or (b) a service offence that is a related offence. This subsection applies where the death of the deceased is or has been the subject of an investigation managed or carried out by the Independent Police Complaints Commission in accordance with Part 3 of Schedule 3 to the Police Reform Act 2002 (c. 30), including that Part as extended or applied by or under any statutory provision (whenever made). “Interested person”, in relation to an object that is or may be treasure or treasure trove, or an investigation or inquest under Chapter 4 concerning such an object, means— (a) the British Museum, if the object was found or is believed to have been found in England; (b) the National Museum of Wales, if the object was found or is believed to have been found in Wales; (c) the finder of the object or any person otherwise involved in the find; (d) the occupier, at the time the object was found, of the land where it was found or is believed to have been found; (e) a person who had an interest in that land at that time or who has had such an interest since; (f) any other person who the Coroner for Treasure thinks has a sufficient interest. For the purposes of this section, a person is the partner of a deceased person if the two of them (whether of different sexes or the same sex) were living as partners in an enduring relationship at the time of the deceased person’s death.

48 Interpretation: general (1) In this Part, unless the context otherwise requires— “the 1953 Act” means the Births and Deaths Registration Act 1953 (c. 20); “the 1988 Act” means the Coroners Act 1988 (c. 13);

564 Appendices

“active service” means service in— (a) an action or operation against an enemy (within the meaning given by section 374 of the Armed Forces Act 2006 (c. 52)), (b) an operation outside the British Islands for the protection of life or property, or (c) the military occupation of a foreign country or territory; “area”, in relation to a senior coroner, area coroner or assistant coroner, means the coroner area for which that coroner is appointed; “area coroner” means a person appointed under paragraph 2(3) of Schedule 3; “assistant coroner” means a person appointed under paragraph 2(4) of Schedule 3; “Assistant Coroner for Treasure” means an assistant coroner, designated under paragraph 7 of Schedule 4, acting in the capacity of Assistant Coroner for Treasure; “body” includes body parts; “chief constable” means— (a) a chief officer of police (within the meaning given in section 101(1) of the Police Act 1996 (c. 16)); (b) the Chief Constable of the Ministry of Defence Police; (c) the Chief Constable of the Civil Nuclear Constabulary; (d) the Chief Constable of the British Transport Police; “the Chief Coroner” means a person appointed under paragraph 1 of Schedule 8; “the Common Council” means the Common Council of the City of London, and “common councillor”is to be read accordingly; “coroner area” is to be read in accordance with paragraph 1 of Schedule 2; “the Coroner for Treasure” means a person appointed under paragraph 1 of Schedule 4; “Coroners regulations” means regulations under section 43; “Coroners rules” means rules under section 45; “the coroner system” means the system of law and administration relating to investigations and inquests under this Part; “the court of trial” means— (a) in relation to an offence (other than a service offence) that is tried summarily, the magistrates’ court by which the offence is tried; (b) in relation to an offence tried on indictment, the Crown Court; (c) in relation to a service offence, a commanding officer, a Court Martial or the Service Civilian Court (depending on the person before whom, or court before which, it is tried); “Deputy Chief Coroner” means a person appointed under paragraph 2 of Schedule 8; “document” includes information stored in an electronic form; “enforcing authority” has the meaning given by section 18(7) of the Health and Safety at Work etc. Act 1974 (c. 37); “functions” includes powers and duties; “homicide offence” has the meaning given in paragraph 1(6) of Schedule 1; “interested person” is to be read in accordance with section 47; “land” includes premises within the meaning of the Police and Criminal Evidence Act 1984 (c. 60);

Appendices 565

“local authority” means— (a) in relation to England, a county council, the council of any district comprised in an area for which there is no county council, a London borough council, the Common Council or the Council of the Isles of Scilly; (b) in relation to Wales, a county council or a county borough council; “medical examiner” means a person appointed under section 19; “person”, in relation to an offence of corporate manslaughter, includes an organisation; “prosecuting authority” means— (a) the Director of Public Prosecutions, or (b) a person of a description prescribed by an order made by the Lord Chancellor; “related offence” has the meaning given in paragraph 1(6) of Schedule 1; “relevant authority”, in relation to a coroner area, has the meaning given by paragraph 3 of Schedule 2 (and see paragraph 2 of Schedule 22); “senior coroner” means a person appointed under paragraph 1 of Schedule 3; “the service equivalent of a homicide offence” has the meaning given in paragraph 1(6) of Schedule 1; “service offence” has the meaning given by section 50(2) of the Armed Forces Act 2006 (c. 52) (read without regard to any order under section 380 of that Act) and also includes an offence under— (a) Part 2 of the Army Act 1955 (3 & 4 Eliz. 2 c. 18) or paragraph 4(6) of Schedule 5A to that Act, (b) Part 2 of the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) or paragraph 4(6) of Schedule 5A to that Act, or (c) Part 1 or section 47K of the Naval Discipline Act 1957 (c. 53) or paragraph 4(6) of Schedule 4A to that Act; “service police force” means— (a) the Royal Navy Police, (b) the Royal Military Police, or (c) the Royal Air Force Police; “state detention” has the meaning given by subsection (2); “statutory provision” means provision contained in, or in an instrument made under, any Act (including this Act); “treasure” means anything that is treasure for the purposes of the Treasure Act 1996 (c. 24) (and accordingly does not include anything found before 24 September 1997); “Treasure regulations” means regulations under section 44; “treasure trove” does not include anything found on or after 24 September 1997. (2) A person is in state detention if he or she is compulsorily detained by a public authority within the meaning of section 6 of the Human Rights Act 1998 (c. 42). (3) For the purposes of this Part, the area of the Common Council is to be treated as including the Inner Temple and the Middle Temple. (4) A reference in this Part to a coroner who is responsible for conducting an investigation under this Part into a person’s death is to be read as a reference to the coroner

566 Appendices

who is under a duty to conduct the investigation, or who would be under such a duty but for the suspension of the investigation under this Part. (5) A reference in this Part to producing or providing a document, in relation to information stored in an electronic form, is to be read as a reference to producing or providing a copy of the information in a legible form. Northern Ireland and Scotland amendments [see ss50 and 51] CORONERS AND JUSTICE ACT 2009: SCHEDULES Schedule 1 DUTY OR POWER TO SUSPEND OR RESUME INVESTIGATIONS Part 1 SUSPENSION OF INVESTIGATIONS Suspension where certain criminal charges may be brought 1 (1) A senior coroner must suspend an investigation under this Part of this Act into a person’s death in the following cases. (2) The first case is where a prosecuting authority requests the coroner to suspend the investigation on the ground that a person may be charged with— (a) a homicide offence involving the death of the deceased, or (b) an offence (other than a service offence) that is alleged to be a related offence. (3) The second case is where a Provost Marshal or the Director of Service Prosecutions requests the coroner to suspend the investigation on the ground that a person may be charged with— (a) the service equivalent of a homicide offence involving the death of the deceased, or (b) a service offence that is alleged to be a related offence. (4) Subject to paragraphs 2 and 3, a suspension of an investigation under this paragraph must be for— (a) a period of 28 days beginning with the day on which the suspension first takes effect, or (b) whatever longer period (beginning with that day) the coroner specifies. (5) The period referred to in sub-paragraph (4) may be extended or further extended— (a) in the first case, at the request of the authority by which the suspension was originally requested; (b) in the second case, at the request of— (i) the Provost Marshal by whom the suspension was originally requested, or (ii) the Director of Service Prosecutions. (6) In this Act— “homicide offence” means— (a) murder, manslaughter, corporate manslaughter or infanticide;

Appendices 567

(b) an offence under any of the following provisions of the Road Traffic Act 1988 (c. 52)— (i) section 1 (causing death by dangerous driving); (ii) section 2B (causing death by careless, or inconsiderate, driving); (iii) section 3ZB (causing death by driving: unlicensed […] or uninsured drivers); [(iiia) section 3ZC (causing death by driving: disqualified drivers);] (iv) section 3A (causing death by careless driving when under the influence of drink or drugs); (c) an offence under section 2(1) of the Suicide Act 1961 (c. 60) (encouraging or assisting suicide); (d) an offence under section 5 of the Domestic Violence, Crime and Victims Act 2004 (c. 28) [of causing or allowing the death of a child or vulnerable adult]; “related offence” means an offence (including a service offence) that— (a) involves the death of the deceased, but is not a homicide offence or the service equivalent of a homicide offence, or (b) involves the death of a person other than the deceased (whether or not it is a homicide offence or the service equivalent of a homicide offence) and is committed in circumstances connected with the death of the deceased; “the service equivalent of a homicide offence” means an offence under section 42 of the Armed Forces Act 2006 (c. 52) (or section 70 of the Army Act 1955 (3 & 4 Eliz. 2. c. 18), section 70 of the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) or section 42 of the Naval Discipline Act 1957 (c. 53)) corresponding to a homicide offence. Suspension where certain criminal proceedings are brought 2 (1) Subject to sub-paragraph (6), a senior coroner must suspend an investigation under this Part of this Act into a person’s death in the following cases. (2) The first case is where the coroner— (a) becomes aware that a person has appeared or been brought before a magistrates’ court charged with a homicide offence involving the death of the deceased, or (b) becomes aware that a person has been charged on an indictment with such an offence without having appeared or been brought before a magistrates’ court charged with it. (3) The second case is where the coroner becomes aware that a person has been charged with the service equivalent of a homicide offence involving the death of the deceased. (4) The third case is where a prosecuting authority informs the coroner that a person— (a) has appeared or been brought before a magistrates’ court charged with an offence (other than a service offence) that is alleged to be a related offence, or

568 Appendices

(b) has been charged on an indictment with such an offence without having been sent for trial for it, and the prosecuting authority requests the coroner to suspend the investigation. (5) The fourth case is where the Director of Service Prosecutions informs the coroner that a person has been charged with a service offence that is alleged to be a related offence, and the Director requests the coroner to suspend the investigation. (6) The coroner need not suspend the investigation— (a) in the first case, if a prosecuting authority informs the coroner that it has no objection to the investigation continuing; (b) in the second case, if the Director of Service Prosecutions informs the coroner that he or she has no objection to the investigation continuing; (c) in any case, if the coroner thinks that there is an exceptional reason for not suspending the investigation. (7) In the case of an investigation that is already suspended under paragraph 1— (a) a suspension imposed by virtue of sub-paragraph (2) of that paragraph comes to an end if, in reliance of sub-paragraph (6)(a) above, the coroner decides not to suspend the investigation; (b) a suspension imposed by virtue of sub-paragraph (3) of that paragraph comes to an end if, in reliance on sub-paragraph (6)(b) above, the coroner decides not to suspend the investigation; (c) a reference above in this paragraph to suspending an investigation is to be read as a reference to continuing the suspension of an investigation; (d) if the suspension of the investigation is continued under this paragraph, the investigation is to be treated for the purposes of paragraphs 1(4), 7 and 8 of this Schedule as suspended under this paragraph (and not as suspended under paragraph 1). Suspension pending inquiry under Inquiries Act 2005 3 (1) Subject to sub-paragraph (2), a senior coroner must suspend an investigation under this Part of this Act into a person’s death if— (a) the Lord Chancellor requests the coroner to do so on the ground that the cause of death is likely to be adequately investigated by an inquiry under the Inquiries Act 2005 (c. 12) that is being or is to be held, (b) a senior judge has been appointed under that Act as chairman of the inquiry, and (c) the Lord Chief Justice has indicated approval to the Lord Chancellor, for the purposes of this paragraph, of the appointment of that judge. In paragraph (b) “senior judge” means a judge of the High Court or the Court of Appeal or a Justice of the Supreme Court. (2) The coroner need not suspend the investigation if there appears to be an exceptional reason for not doing so.

Appendices 569

(3) In the case of an investigation that is already suspended under paragraph 1— (a) a reference above in this paragraph to suspending the investigation is to be read as a reference to continuing the suspension of the investigation; (b) if the suspension of the investigation is continued under this paragraph, the investigation is to be treated for the purposes of paragraphs 1(4), 7 and 9 of this Schedule as suspended under this paragraph (and not as suspended under paragraph 1). Suspension pending inquiry under Inquiries Act 2005 4 (1) This paragraph applies where an investigation is suspended under paragraph 3 on the basis that the cause of death is likely to be adequately investigated by an inquiry under the Inquiries Act 2005 (c. 12). (2) The terms of reference of the inquiry must be such that it has as its purpose, or among its purposes, the purpose set out in section 5(1) above (read with section 5(2) where applicable); and section 5 of the Inquiries Act 2005 has effect accordingly. General power to suspend 5 A senior coroner may suspend an investigation under this Part of this Act into a person’s death in any case if it appears to the coroner that it would be appropriate to do so. Effect of suspension 6 (1) Where an investigation is suspended under this Schedule, the senior coroner must adjourn any inquest that is being held as part of the investigation. (2) Where an inquest held with a jury is adjourned under this paragraph, the senior coroner may discharge the jury. Part 2 RESUMPTION OF INVESTIGATIONS 7 Resumption of investigation suspended under paragraph 1 An investigation that is suspended under paragraph 1 must be resumed once the period under sub-paragraph (4) of that paragraph, or as the case may be the extended period under sub-paragraph (5) of that paragraph, has ended. (But see paragraphs 2(7)(d) and 3(3)(b).)

570 Appendices

8 Resumption of investigation suspended under paragraph 2 (1) An investigation that is suspended under paragraph 2 may not be resumed unless, but must be resumed if, the senior coroner thinks that there is sufficient reason for resuming it. (2) Subject to sub-paragraph (3)— (a) an investigation that is suspended under paragraph 2 may not be resumed while proceedings are continuing before the court of trial in respect of a homicide offence, or the service equivalent of a homicide offence, involving the death of the deceased; (b) an investigation that is suspended by virtue of sub-paragraph (4) or (5) of that paragraph may not be resumed while proceedings are continuing before the court of trial in respect of the offence referred to in that sub-paragraph. (3) The investigation may be resumed while the proceedings in question are continuing if— (a) in the case of an investigation suspended by virtue of sub-paragraph (2) or (4) of paragraph 2, the relevant prosecuting authority informs the coroner that it has no objection to the investigation being resumed; (b) in the case of an investigation suspended by virtue of sub-paragraph (3) or (5) of that paragraph, the Director of Service Prosecutions informs the coroner that he or she has no objection to the investigation being resumed. (4) For the purposes of sub-paragraph (3)(a), the relevant prosecuting authority— (a) in the case of an investigation suspended by virtue of sub-paragraph (2) of paragraph 2, is the prosecuting authority responsible for the prosecution in question; (b) in the case of an investigation suspended by virtue of sub-paragraph (4) of that paragraph, is the prosecuting authority that made the request under that sub-paragraph. (5) In the case of an investigation resumed under this paragraph, a determination under section 10(1)(a) may not be inconsistent with the outcome of— (a) the proceedings in respect of the charge (or each charge) by reason of which the investigation was suspended; (b) any proceedings that, by reason of sub-paragraph (2), had to be concluded before the investigation could be resumed. 9 Resumption of investigation suspended under paragraph 3 (1) Where an investigation is suspended under paragraph 3— (a) it may not be resumed unless, but must be resumed if, the senior coroner thinks that there is sufficient reason for resuming it; (b) it may not be resumed before the end of the period of 28 days beginning with the relevant day; (c) where sub-paragraph (4), (6), (8) or (10) applies, it may be resumed only in accordance with that sub-paragraph (and not before the end of the 28-day period mentioned in paragraph (b)). (2) In sub-paragraph (1)(b) “the relevant day” means— (a) if the Lord Chancellor gives the coroner notification under this paragraph, the day on which the inquiry concerned is concluded; (b) otherwise, the day on which the findings of that inquiry are published.

Appendices 571

(3) Sub-paragraph (4) applies where, during the suspension of the investigation, the coroner— (a) becomes aware that a person has appeared or been brought before a magistrates’ court charged with a homicide offence involving the death of the deceased, or (b) becomes aware that a person has been charged on an indictment with such an offence without having appeared or been brought before a magistrates’ court charged with it. (4) The coroner must not resume the investigation until after the conclusion of proceedings before the court of trial in respect of the offence in question, unless a prosecuting authority informs the coroner that it has no objection to the investigation being resumed before then. (5) Sub-paragraph (6) applies where, during the suspension of the investigation, the coroner becomes aware that a person has been charged with the service equivalent of a homicide offence involving the death of the deceased. (6) The coroner must not resume the investigation until after the conclusion of proceedings before the court of trial in respect of the offence in question, unless the Director of Service Prosecutions informs the coroner that he or she has no objection to the investigation being resumed before then. (7) Sub-paragraph (8) applies where, during the suspension of the investigation, a prosecuting authority informs the senior coroner that a person— (a) has appeared or been brought before a magistrates’ court charged with an offence (other than a service offence) that is alleged to be a related offence, or (b) has been charged on an indictment with such an offence without having been sent for trial for it. (8) If the prosecuting authority requests the coroner not to resume the investigation until after the conclusion of proceedings before the court of trial in respect of the offence in question, the coroner must not do so. But the coroner may resume the investigation before the conclusion of those proceedings if the prosecuting authority subsequently informs the coroner that it has no objection to the investigation being resumed before then. (9) Sub-paragraph (10) applies where the Director of Service Prosecutions informs the coroner that a person has been charged with a service offence that is alleged to be a related offence. (10) If the Director of Service Prosecutions requests the coroner not to resume the investigation until after the conclusion of proceedings before the court of trial in respect of the offence in question, the coroner must not do so. But the coroner may resume the investigation before the conclusion of those proceedings if the Director subsequently informs the coroner that he or she has no objection to the investigation being resumed before then. (11) In the case of an investigation resumed under this paragraph, a determination under section 10(1)(a) may not be inconsistent with the outcome of— (a) the inquiry under the Inquiries Act 2005 (c. 12) by reason of which the investigation was suspended; (b) any proceedings that, by reason of sub-paragraph (4), (6), (8) or (10), had to be concluded before the investigation could be resumed.

572 Appendices

10 Resumption of investigation suspended under paragraph 5 An investigation that is suspended under paragraph 5 may be resumed at any time if the senior coroner thinks that there is sufficient reason for resuming it. 11 Supplemental (1) Where an investigation is resumed under this Schedule, the senior coroner must resume any inquest that was adjourned under paragraph 6. (2) The following provisions apply, in place of section 7, to an inquest that is resumed under this paragraph. (3) The resumed inquest may be held with a jury if the senior coroner thinks that there is sufficient reason for it to be held with one. (4) Where the adjourned inquest was held with a jury and the senior coroner decides to hold the resumed inquest with a jury— (a) if at least seven persons who were members of the original jury are available to serve at the resumed inquest, the resumed inquest must be held with a jury consisting of those persons; (b) if not, or if the original jury was discharged under paragraph 6(2), a new jury must be summoned. Schedule 2 CORONER AREAS 1 Coroner areas (1) England and Wales is to be divided into areas to be known as coroner areas. (2) Each coroner area is to consist of the area of a local authority or the combined areas of two or more local authorities. (3) Subject to paragraph 2— (a) the coroner areas are to be those specified in an order made by the Lord Chancellor; (b) each coroner area is to be known by whatever name is specified in the order. (4) Before making an order under this paragraph, the Lord Chancellor must consult— (a) every local authority, (b) the Welsh Ministers, and (c) any other persons the Lord Chancellor thinks appropriate. 2 Alteration of coroner areas (1) The Lord Chancellor may make orders altering coroner areas. (2) Before making an order under this paragraph the Lord Chancellor must consult— (a) whichever local authorities the Lord Chancellor thinks appropriate, (b) in the case of a coroner area in Wales, the Welsh Ministers, and (c) any other persons the Lord Chancellor thinks appropriate. (3) “Altering”, in relation to a coroner area, includes (as well as changing its boundaries)— (a) combining it with one or more other coroner areas;

Appendices 573

(b) dividing it between two or more other coroner areas; (c) changing its name. 3 Relevant authorities (1) This paragraph sets out for the purposes of this Part what is the “relevant authority” for a given coroner area. (2) In the case of a coroner area consisting of the area of a single local authority, that authority is the relevant authority for the coroner area. (3) In the case of a coroner area consisting of the areas of two or more local authorities, the relevant authority for the coroner area is— (a) whichever one of those authorities they jointly nominate; (b) if they cannot agree on a nomination, whichever one of them the Lord Chancellor determines. (4) Before making a determination under sub-paragraph (3)(b) the Lord Chancellor must consult— (a) the Secretary of State, in a case involving local authorities in England; (b) the Welsh Ministers, in a case involving local authorities in Wales. (5) This paragraph has effect subject to paragraph 2 of Schedule 22. 4 Effect of body being outside coroner area etc (1) This paragraph applies where— (a) a senior coroner is responsible for conducting an investigation under this Part into a person’s death, and (b) the body is outside the coroner’s area (whether because of its removal or otherwise). (2) The coroner has the same functions in relation to the body and the investigation as would be the case if the body were within the coroner’s area. (3) The presence of the body at a place outside the coroner’s area does not confer any functions on any other coroner. Schedule 3 APPOINTMENT ETC OF SENIOR CORONERS, AREA CORONERS AND ASSISTANT CORONERS Part 1 APPOINTMENT OF SENIOR, AREA AND ASSISTANT CORONERS 1 Appointment of senior coroners (1) The relevant authority for each coroner area must appoint a coroner (the “senior coroner”) for that area. (2) In the case of a coroner area that consists of the areas of two or more local authorities, the relevant authority for the area must consult the other authorities before making an appointment under this paragraph. (3) A person may not be appointed as a senior coroner unless the Lord Chancellor and the Chief Coroner consent to the appointment of that person.

574 Appendices

2 Appointment of area and assistant coroners (1) The Lord Chancellor may by order require the appointment, for any coroner area, of— (a) an area coroner, or a specified number of area coroners; (b) a minimum number of assistant coroners. (2) Before making an order under this paragraph in relation to a particular coroner area, the Lord Chancellor must consult— (a) the Chief Coroner, and (b) every local authority whose area falls within the coroner area (or, as the case may be, the local authority whose area is the same as the coroner area). (3) The relevant authority for a coroner area in relation to which provision is made under sub-paragraph (1)(a) must appoint an area coroner or, as the case may be, the number of area coroners specified for the area in the order. (4) The relevant authority for a coroner area in relation to which provision is made under sub-paragraph (1)(b) must appoint at least the number of assistant coroners specified for the area in the order. (5) A person may not be appointed as an area coroner or assistant coroner unless the Lord Chancellor and the Chief Coroner consent to the appointment of that person. Part 2 QUALIFICATIONS OF SENIOR, AREA AND ASSISTANT CORONERS 3 To be eligible for appointment as a senior coroner, area coroner or assistant coroner, a person must— (a) be under the age of 70, and (b) satisfy the judicial-appointment eligibility condition on a 5-year basis. 4 (1) A person who is a councillor for a local authority, or has been during the previous 6 months, may not be appointed as the senior coroner, or as an area coroner or assistant coroner, for a coroner area that is the same as or includes the area of that local authority. (2) In the application of this paragraph to the Common Council, the reference to a councillor is to be read as a reference to an alderman of the City of London or a common councillor. Part 3 VACANCIES; FUNCTIONS OF AREA AND ASSISTANT CORONERS Filling of vacancies 5 (1) This paragraph applies where a vacancy occurs— (a) in the office of senior coroner for an area, or (b) in an office of area coroner for an area.

Appendices 575

(2) The relevant authority for the area must— (a) give notice in writing of the vacancy to the Lord Chancellor and the Chief Coroner as soon as practicable after the vacancy occurs; (b) appoint a person to fill the vacancy under paragraph 1 or 2 (as the case may be) within 3 months of the vacancy occurring, or within whatever further period the Lord Chancellor allows; (c) give notice in writing of the appointment of a person to fill the vacancy to the Lord Chancellor and the Chief Coroner as soon as practicable after it is filled. 6 (1) This paragraph applies where— (a) a vacancy occurs in an office of assistant coroner for an area, and (b) the vacancy causes the number of assistant coroners for the area to fall below (or further below) the minimum number specified under paragraph 2(1)(b). (2) Within 3 months of the vacancy occurring, or within whatever further period the Lord Chancellor allows, the relevant authority for the area must appoint a person to fill the vacancy. Person to act as senior coroner in case of vacancy 7 (1) This paragraph applies where a vacancy occurs in the office of senior coroner for an area. (2) Subject to sub-paragraph (3), the area coroner for the area (or, if there is more than one such area coroner, whichever of them is nominated by the relevant authority for the area) is to act as senior coroner for the area while the office remains vacant. (3) Where there is no area coroner for the area, whichever assistant coroner for the area is nominated by the relevant authority for the area is to act as senior coroner for the area while the office remains vacant. (4) In the case of a coroner area that consists of the area of two or more local authorities, the relevant authority for the area must consult the other authority or authorities before making a nomination under this paragraph. (5) A person who acts as senior coroner for an area by virtue of this paragraph is to be treated for all purposes of this Part of this Act (except those of this paragraph and paragraphs 1 to 5 and 9 to 19 of this Schedule) as being the senior coroner for the area. Functions of area and assistant coroners 8 (1) An area coroner or assistant coroner for an area may perform any functions of the senior coroner for the area (including functions which that senior coroner has by virtue of section 2 or 3)— (a) during a period when that senior coroner is absent or unavailable; (b) at any other time, with the consent of that senior coroner.

576 Appendices

(2) Accordingly a reference in a statutory provision (whenever made) to a senior coroner is to be read, where appropriate, as including an area coroner or assistant coroner. Part 4 TERMS OF OFFICE OF SENIOR, AREA AND ASSISTANT CORONERS Status of office 9 The offices of senior coroner, area coroner and assistant coroner are not to be regarded as freehold offices. Vacation or termination of office 10 A senior coroner, area coroner or assistant coroner must vacate office on reaching the age of 70. 11 (1) The senior coroner or an area coroner or assistant coroner for an area (“the relevant coroner area”) must vacate office immediately if— (a) he or she becomes a councillor for a local authority, and (b) the area of that local authority is the same as or falls within the relevant coroner area. (2) In the application of this paragraph to the Common Council, the reference to a councillor is to be read as a reference to an alderman of the City of London or a common councillor. 12 The senior coroner or an area coroner or assistant coroner for an area may resign office by giving notice in writing to the relevant authority for the area. But the resignation does not take effect unless and until it is accepted by the authority. 13 (1) The Lord Chancellor may, with the agreement of the Lord Chief Justice, remove a senior coroner, area coroner or assistant coroner from office for incapacity or misbehaviour. (2) The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005 (c. 4)) to exercise the functions of the Lord Chief Justice under sub-paragraph (1). Discipline 14 Chapter 3 of Part 4 of the Constitutional Reform Act 2005 (c. 4) (discipline) applies in relation to the offices of senior coroner, area coroner and assistant coroner as it would apply if those offices were listed in Schedule 14 to that Act.

Appendices 577

Salary of senior and area coroners 15 (1) The senior coroner for an area is entitled to a salary. (2) The amount of the salary is to be whatever is from time to time agreed by the senior coroner and the relevant authority for the area. (3) If the senior coroner and the relevant authority cannot agree about an alteration in the amount of the salary— (a) either of them may refer the matter to the Lord Chancellor; (b) the Lord Chancellor may determine the amount of the salary and the date on which it is to become payable. Any alteration in the amount of salary is to take effect in accordance with the Lord Chancellor’s determination. (4) In making a determination under sub-paragraph (3), the Lord Chancellor must have regard— (a) to the nature and extent of the coroner’s functions, and (b) to all the circumstances of the case. (5) The salary to which the senior coroner for an area is entitled under this paragraph is payable by the relevant authority for the area. (6) This paragraph applies in relation to an area coroner for an area as it applies in relation to the senior coroner for an area (references to the senior coroner being read as references to an area coroner). Fees payable to assistants 16 (1) An assistant coroner for an area is entitled to fees. (2) The amount of the fees is to be whatever is agreed from time to time by the assistant coroner and the relevant authority for the area. (3) The fees to which an assistant coroner for an area is entitled under this paragraph are payable by the relevant authority for the area. Pensions for senior and area coroners 17 A relevant authority for a coroner area must make provision for the payment of pensions, allowances or gratuities to or in respect of persons who are or have been senior coroners or area coroners for the area. Prohibition on receipt of fees etc 18 Except as permitted by or under this or any other Act, a senior coroner, area coroner or assistant coroner may not accept any remuneration or fee in respect of anything done by that coroner in the performance of his or her functions.

578 Appendices

Other terms of office 19 Subject to the preceding provisions of this Part, the senior coroner or an area coroner or assistant coroner for an area holds office on whatever terms are from time to time agreed by that coroner and the relevant authority for the area. Schedule 4 CORONER FOR TREASURE AND ASSISTANT CORONERS FOR TREASURE [Omitted] Schedule 5 POWERS OF CORONERS Power to require evidence to be given or produced 1 (1) A senior coroner may by notice require a person to attend at a time and place stated in the notice and— (a) to give evidence at an inquest, (b) to produce any documents in the custody or under the control of the person which relate to a matter that is relevant to an inquest, or (c) to produce for inspection, examination or testing any other thing in the custody or under the control of the person which relates to a matter that is relevant to an inquest. (2) A senior coroner who is conducting an investigation under this Part may by notice require a person, within such period as the senior coroner thinks reasonable— (a) to provide evidence to the senior coroner, about any matters specified in the notice, in the form of a written statement, (b) to produce any documents in the custody or under the control of the person which relate to a matter that is relevant to the investigation, or (c) to produce for inspection, examination or testing any other thing in the custody or under the control of the person which relates to a matter that is relevant to the investigation. (3) A notice under sub-paragraph (1) or (2) must— (a) explain the possible consequences, under paragraphs 6 and 7 of Schedule 6, of not complying with the notice; (b) indicate what the recipient of the notice should do if he or she wishes to make a claim under sub-paragraph (4). (4) A claim by a person that— (a) he or she is unable to comply with a notice under this paragraph, or (b) it is not reasonable in all the circumstances to require him or her to comply with such a notice, is to be determined by the senior coroner, who may revoke or vary the notice on that ground.

Appendices 579

(5) In deciding whether to revoke or vary a notice on the ground mentioned in sub- paragraph (4)(b), the senior coroner must consider the public interest in the information in question being obtained for the purposes of the inquest or investigation, having regard to the likely importance of the information. (6) For the purposes of this paragraph a document or thing is under a person’s control if it is in the person’s possession or if he or she has a right to possession of it. (7) The validity of a notice under sub-paragraph (1) or (2) is not limited to the coroner area for which the senior coroner issuing the notice is appointed. (8) A reference in this paragraph to a senior coroner is to be read as including the Coroner for Treasure. As it applies in relation to the Coroner for Treasure, this paragraph has effect with the omission of sub-paragraph (7). Power to require evidence to be given or produced 2 (1) A person may not be required to give, produce or provide any evidence or document under paragraph 1 if— (a) he or she could not be required to do so in civil proceedings in a court in England and Wales, or (b) the requirement would be incompatible with a [EU]1 obligation. (2) The rules of law under which evidence or documents are permitted or required to be withheld on grounds of public interest immunity apply in relation to an investigation or inquest under this Part as they apply in relation to civil proceedings in a court in England and Wales. Power of entry, search and seizure 3 3 (1) A senior coroner conducting an investigation under this Part, if authorised— (a) by the Chief Coroner, or (b) by another senior coroner nominated by the Chief Coroner to give authorisation, may enter and search any land specified in the authorisation. (2) An authorisation may be given only if— (a) the senior coroner conducting the investigation has reason to suspect that there may be anything on the land which relates to a matter that is relevant to the investigation, and (b) any of the conditions in sub-paragraph (3) are met. (3) Those conditions are— (a) that it is not practicable to communicate with a person entitled to grant permission to enter and search the land; (b) that permission to enter and search the land has been refused; 3

Paras 3–5 of Schedule 5 not yet in force.

580 Appendices

(c) that the senior coroner has reason to believe that such permission would be refused if requested; (d) that the purpose of a search may be frustrated or seriously prejudiced unless the senior coroner can secure immediate entry to the land on arrival. (4) A senior coroner conducting an investigation under this Part who is lawfully on any land— (a) may seize anything that is on the land; (b) may inspect and take copies of any documents. (5) A reference in this paragraph to land is not limited to land within the coroner area for which the senior coroner in question is appointed. (6) A reference in this paragraph to a senior coroner is to be read as including the Coroner for Treasure. As it applies in relation to the Coroner for Treasure, this paragraph has effect with the omission of sub-paragraphs (1)(b) and (5). 4 (1) The person by whom an authorisation under paragraph 3(1) is given must make a record— (a) setting out the reasons for the suspicion referred to in paragraph 3(2)(a); (b) specifying which of the conditions in paragraph 3(3) is met. (2) Where the authorisation is given by a senior coroner nominated under paragraph 3(1)(b), that coroner must give the record made under this paragraph to the Chief Coroner. (3) The Chief Coroner must retain a record made this paragraph until the Chief Coroner has given to the Lord Chancellor the report under section 36 for the calendar year in which the authorisation in question was given. 5 (1) A power under paragraph 3(4) is not exercisable unless the person exercising the power has reasonable grounds for believing— (a) that its exercise may assist the investigation, and (b) in the case of the seizure of anything, that the seizure is necessary to prevent the thing being concealed, lost, damaged, altered or destroyed. (2) The power under paragraph 3(4)(b) includes power to require any information that is stored in an electronic form and is on, or accessible from, the land to be produced in a form— (a) in which it can be taken away, and (b) in which it is legible or from which it can readily be produced in a legible form. (3) A power under paragraph 3(4) does not apply to any item that the person by whom the power is exercisable has reasonable grounds for believing to be subject to legal privilege. (4) Anything that has been seized or taken away under paragraph 3 may be retained for so long as is necessary in all the circumstances. (5) A person on whom a power is conferred by virtue of paragraph 3 may use reasonable force, if necessary, in the exercise of the power.

Appendices 581

(6) In this paragraph “subject to legal privilege”, in relation to an item, has the meaning given by section 10 of the Police and Criminal Evidence Act 1984 (c. 60). Exhumation of body for examination 6 (1) A senior coroner may order the exhumation of a person’s body if subparagraph (2) or (3) applies. (2) This sub-paragraph applies if— (a) the body is buried in England and Wales (whether or not within the coroner area for which the coroner is appointed), and (b) the coroner thinks it necessary for the body to be examined under section 14. (3) This sub-paragraph applies if— (a) the body is buried within the coroner area for which the coroner is appointed, and (b) the coroner thinks it necessary for the body to be examined for the purpose of any criminal proceedings that have been instituted or are contemplated in respect of— (i) the death of the person whose body it is, or (ii) the death of another person who died in circumstances connected with the death of that person. (4) In sub-paragraph (3) “criminal proceedings” includes proceedings in respect of an offence under section 42 of the Armed Forces Act 2006 (c. 52) (or section 70 of the Army Act 1955 (3 & 4 Eliz. 2 c. 18), section 70 of the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) or section 42 of the Naval Discipline Act 1957 (c. 53)). Action to prevent other deaths 7 (1) Where— (a) a senior coroner has been conducting an investigation under this Part into a person’s death, (b) anything revealed by the investigation gives rise to a concern that circumstances creating a risk of other deaths will occur, or will continue to exist, in the future, and (c) in the coroner’s opinion, action should be taken to prevent the occurrence or continuation of such circumstances, or to eliminate or reduce the risk of death created by such circumstances, the coroner must report the matter to a person who the coroner believes may have power to take such action. (2) A person to whom a senior coroner makes a report under this paragraph must give the senior coroner a written response to it. (3) A copy of a report under this paragraph, and of the response to it, must be sent to the Chief Coroner.

582 Appendices

Schedule 6 OFFENCES Part 1 OFFENCES RELATING TO JURORS4 Serving while disqualified, failure to attend etc 1 (1) It is an offence for a person to serve on a jury at an inquest if the person— (a) is disqualified from jury service (by reason of being a person listed in Part 2 of Schedule 1 to the Juries Act 1974 (c. 23)), and (b) knows that he or she is disqualified from jury service. (2) A person guilty of an offence under this paragraph is liable on summary conviction to a fine not exceeding level 5 on the standard scale. 2 (1) It is an offence for a person— (a) to refuse without reasonable excuse to answer any question put under section 8(5), (b) to give an answer to such a question knowing the answer to be false in a material particular, or (c) recklessly to give an answer to such a question that is false in a material particular. (2) A person guilty of an offence under this paragraph is liable on summary conviction to a fine not exceeding level 3 on the standard scale. 3 (1) It is an offence for a person who is duly summoned as a juror at an inquest— (a) to make any false representation, or (b) to cause or permit to be made any false representation on his or her behalf, with the intention of evading service as a juror at an inquest. (2) A person guilty of an offence under this paragraph is liable on summary conviction to a fine not exceeding level 3 on the standard scale. 4 (1) It is an offence for a person to make or cause to be made, on behalf of a person who has been duly summoned as a juror at an inquest, any false representation with the intention of enabling the other person to evade service as a juror at an inquest. (2) A person guilty of an offence under this paragraph is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

4 Sch.6 paras 1–5 has been moved under a new heading entitled “Serving while disqualified, failure to attend etc” by Criminal Justice and Courts Act 2015 c. 2 Sch.13 para.4 (April 13, 2015)

Appendices 583

5 (1) A senior coroner, or (as the case may be) the Coroner for Treasure, may impose a fine not exceeding £1000 on a person duly summoned as a juror at an inquest who— (a) fails without reasonable excuse to attend in accordance with the summons, or (b) attends in accordance with the summons but refuses without reasonable excuse to serve as a juror. (2) But a fine may not be imposed under this paragraph unless the summons was duly served on the person in question not later than 14 days before the day on which he or she was required to attend. Research by jurors5 5A.— (1) It is an offence for a member of a jury at an inquest to research the case during the inquest period, subject to the exceptions in sub-paragraphs (6) and (7). (2) A person researches a case if (and only if) the person— (a) intentionally seeks information, and (b) when doing so, knows or ought reasonably to know that the information is or may be relevant to the inquest. (3) The ways in which a person may seek information include— (a) asking a question, (b) searching an electronic database, including by means of the internet, (c) visiting or inspecting a place or object, (d) conducting an experiment, and (e) asking another person to seek the information. (4) Information relevant to the inquest includes information about— (a) a person involved in events relevant to the inquest, (b) the senior coroner dealing with the inquest, (c) any other person who is involved in the inquest, whether as a lawyer, a witness or otherwise, (d) the law relating to the case, (e) the law of evidence, and (f) procedure at inquests. (5) “The inquest period”, in relation to a member of a jury at an inquest, is the period— (a) beginning when the person is sworn to inquire into the case, and (b) ending when the senior coroner discharges the jury or, if earlier, when the senior coroner discharges the person. (6) It is not an offence under this paragraph for a person to seek information if the person needs the information for a reason which is not connected with the case. (7) It is not an offence under this paragraph for a person— (a) to attend proceedings at the inquest; (b) to seek information from the senior coroner dealing with the case; 5 Paras 5A–G added by Criminal Justice and Courts Act 2015 c. 2 Sch.13 para.5 (April 13, 2015: insertion has effect as SI 2015/778 subject to transitional provisions specified in SI 2018/778 art.4 and Sch.2 para.3(b))

584 Appendices

(c) to do anything which the senior coroner dealing with the case directs or authorises the person to do; (d) to seek information from another member of the jury, unless the person knows or ought reasonably to know that the other member of the jury contravened this paragraph in the process of obtaining the information; (e) to do anything else which is reasonably necessary in order for the jury to make a determination or finding in the case. (8) A person guilty of an offence under this paragraph is liable, on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine (or both). (9) Proceedings for an offence under this paragraph may only be instituted by or with the consent of the Attorney General. Sharing research with other jurors 5B.— (1) It is an offence for a member of a jury at an inquest intentionally to disclose information to another member of the jury during the inquest period if— (a) the member contravened paragraph 5A in the process of obtaining the information, and (b) the information has not been provided at the inquest. (2) Information has been provided at the inquest if (and only if) it has been provided as part of— (a) evidence presented at the inquest, or (b) other information provided to the jury or a juror during the inquest period by, or with the permission of, the senior coroner dealing with the case. (3) A person guilty of an offence under this paragraph is liable, on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine (or both). (4) Proceedings for an offence under this paragraph may not be instituted except by or with the consent of the Attorney General. (5) In this paragraph, “the inquest period” has the same meaning as in paragraph 5A. Jurors engaging in other prohibited conduct 5C.— (1) It is an offence for a member of a jury at an inquest intentionally to engage in prohibited conduct during the inquest period, subject to the exceptions in sub-paragraphs (4) and (5). (2) “Prohibited conduct” means conduct from which it may reasonably be concluded that the person intends to make a determination or finding otherwise than on the basis of the evidence presented at the inquest. (3) An offence under this paragraph is committed whether or not the person knows that the conduct is prohibited conduct. (4) It is not an offence under this paragraph for a member of the jury to research the case (as defined in paragraph 5A(2) to (4)).

Appendices 585

(5) It is not an offence under this paragraph for a member of the jury to disclose information to another member of the jury. (6) A person guilty of an offence under this paragraph is liable, on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine (or both). (7) Proceedings for an offence under this paragraph may not be instituted except by or with the consent of the Attorney General. (8) In this paragraph, “the inquest period” has the same meaning as in paragraph 5A. Part 1A OFFENCE RELATING TO JURY’S DELIBERATIONS Offence 5D.— (1) It is an offence for a person intentionally— (a) to disclose information about statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations in proceedings at an inquest, or (b) to solicit or obtain such information, subject to the exceptions in paragraphs 5E to 5G. (2) A person guilty of an offence under this paragraph is liable, on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine (or both). (3) Proceedings for an offence under this paragraph may not be instituted except by or with the consent of the Attorney General. Initial exceptions 5E.— (1) It is not an offence under paragraph 5D for a person to disclose information in the inquest mentioned in paragraph 5D(1) for the purposes of enabling the jury to make findings or a determination or in connection with the delivery of findings or a determination. (2) It is not an offence under paragraph 5D for the senior coroner dealing with that inquest to disclose information— (a) for the purposes of dealing with the inquest, or (b) for the purposes of an investigation by a relevant investigator into whether an offence or contempt of court has been committed by or in relation to a juror in the inquest. (3) It is not an offence under paragraph 5D for a person who reasonably believes that a disclosure described in sub-paragraph (2)(b) has been made to disclose information for the purposes of the investigation. (4) It is not an offence under paragraph 5D to publish information disclosed as described in sub-paragraph (1) or (2)(a) in the inquest mentioned in paragraph 5D(1).

586 Appendices

(5) In this paragraph— “publish” means make available to the public or a section of the public; “relevant investigator” means— (a) a police force; (b) the Attorney General; (c) any other person or class of person specified by the Lord Chancellor for the purposes of this paragraph by regulations. (6) The Lord Chancellor must obtain the consent of the Lord Chief Justice before making regulations under this paragraph. Further exceptions 5F.— (1) It is not an offence under paragraph 5D for a person to disclose information to a person listed in sub-paragraph (2) if— (a) the disclosure is made after the jury at the inquest mentioned in paragraph 5D(1) has been discharged, and (b) the person making the disclosure reasonably believes that— (i) an offence or contempt of court has been, or may have been, committed by or in relation to a juror in connection with that inquest, or (ii) conduct of a juror in connection with that inquest may provide grounds for an application under section 13(1)(b) of the Coroners Act 1988. (2) Those persons are— (a) a member of a police force; (b) the Attorney General’s Office; (c) a judge of the High Court; (d) the Chief Coroner; (e) the senior coroner who dealt with the inquest mentioned in paragraph 5D(1); (f) a coroner’s officer or a member of staff assisting a senior coroner who would reasonably be expected to disclose the information only to a person mentioned in paragraphs (b) to (e). (3) It is not an offence under paragraph 5D for a member of a police force to disclose information for the purposes of obtaining assistance in deciding whether to submit the information to a person listed in sub-paragraph (2), provided that the disclosure does not involve publishing the information. (4) It is not an offence under paragraph 5D for the Attorney General’s Office or a judge of the High Court to disclose information for the purposes of an investigation by a relevant investigator into— (a) whether an offence or contempt of court has been committed by or in relation to a juror in connection with the inquest mentioned in paragraph 5D(1), or (b) whether conduct of a juror in connection with that inquest may provide grounds for an application under section 13(1)(b) of the Coroners Act 1988. (5) It is not an offence under paragraph 5D for a person who reasonably believes that a disclosure described in sub-paragraph (4) has been made to disclose information for the purposes of the investigation.

Appendices 587

(6) It is not an offence under paragraph 5D for a person to disclose information in evidence in— (a) proceedings for an offence or contempt of court alleged to have been committed by or in relation to a juror in connection with the inquest mentioned in paragraph 5D(1), (b) proceedings on an application to the High Court under section 13(1)(b) of the Coroners Act 1988 in connection with the inquest mentioned in paragraph 5D(1) where an allegation relating to conduct of or in relation to a juror forms part of the grounds for the application, or (c) proceedings on any further appeal, reference or investigation arising out of proceedings mentioned in paragraph (a) or (b). (7) It is not an offence under paragraph 5D for a person to disclose information in the course of taking reasonable steps to prepare for proceedings described in sub- paragraph (6)(a) to (c). (8) It is not an offence under paragraph 5D to publish information disclosed as described in sub-paragraph (6). (9) In this paragraph— “the Attorney General’s Office” means the Attorney General, the Solicitor General or a member of staff of the Attorney General’s Office; “publish” means make available to the public or a section of the public; “relevant investigator” means— (a) (b) (c) (d) (e) (f)

a police force; the Attorney General; the Criminal Cases Review Commission; the Crown Prosecution Service; a senior coroner, area coroner or assistant coroner; any other person or class of person specified by the Lord Chancellor for the purposes of this paragraph by regulations. (10) The Lord Chancellor must obtain the consent of the Lord Chief Justice before making regulations under this paragraph. Exceptions for soliciting disclosures or obtaining information 5G.— (1) It is not an offence under paragraph 5D to solicit a disclosure described in paragraph 5E(1) to (4) or paragraph 5F(1) to (8). (2) It is not an offence under paragraph 5D to obtain information— (a) by means of a disclosure described in paragraph 5E(1) to (4) or paragraph 5F(1) to (8), or (b) from a document that is available to the public or a section of the public.

588 Appendices

Part 2 OFFENCES RELATING TO WITNESSES AND EVIDENCE This version in force from: July 25, 2013 to present (version 1 of 1) 6 A senior coroner, or (as the case may be) the Coroner for Treasure, may impose a fine not exceeding £1000 on a person who fails without reasonable excuse to do anything required by a notice under paragraph 1 of Schedule 5. 7 (1) It is an offence for a person to do anything that is intended to have the effect of— (a) distorting or otherwise altering any evidence, document or other thing that is given, produced or provided for the purposes of an investigation under this Part of this Act, or (b) preventing any evidence, document or other thing from being given, produced or provided for the purposes of such an investigation, or to do anything that the person knows or believes is likely to have that effect. (2) It is an offence for a person— (a) intentionally to suppress or conceal a document that is, and that the person knows or believes to be, a relevant document, or (b) intentionally to alter or destroy such a document. (3) For the purposes of sub-paragraph (2) a document is a “relevant document” if it is likely that a person conducting an investigation under this Part of this Act would (if aware of its existence) wish to be provided with it. (4) A person does not commit an offence under sub-paragraph (1) or (2) by doing anything that is authorised or required— (a) by a senior coroner or the Coroner for Treasure, or (b) by virtue of paragraph 2 of Schedule 5 or any privilege that applies. (5) Proceedings for an offence under sub-paragraph (1) or (2) may be instituted only by or with the consent of the Director of Public Prosecutions. (6) A person guilty of an offence under sub-paragraph (1) or (2) is liable on summary conviction to a fine not exceeding level 3 on the standard scale, or to imprisonment for a term not exceeding 51 weeks, or to both. 8 (1) It is an offence for a person, in giving unsworn evidence at an inquest by virtue of section 45(2)(a), to give false evidence in such circumstances that, had the evidence been given on oath, he or she would have been guilty of perjury. (2) A person guilty of an offence under this paragraph is liable on summary conviction to a fine not exceeding £1000, or to imprisonment for a term not exceeding 51 weeks, or to both. (3) In relation to a person under the age of 14, sub-paragraph (2) has effect as if for the words following “summary conviction” there were substituted “to a fine not exceeding £250”.

Appendices 589

(4) For the purposes of sub-paragraph (3), a person’s age is to be taken to be that which it appears to the court to be after considering any available evidence. 9 (1) The powers of a senior coroner or the Coroner for Treasure under paragraph 5 or 6 are additional to, and do not affect, any other power the coroner may have— (a) to compel a person to appear before him or her; (b) to compel a person to give evidence or produce any document or other thing; (c) to punish a person for contempt of court for failure to appear or to give evidence or to produce any document or other thing. (2) But a person may not be fined under paragraph 5 or 6 and also be punished under any such other power. Part 3 MISCELLANEOUS 10 In relation to an offence committed before the commencement of section 281(5) of the Criminal Justice Act 2003 (c. 44), a reference in this Schedule to 51 weeks is to be read as a reference to 6 months. 11.6 Nothing in paragraph 5A, 5B or 5C affects what constitutes contempt of court at common law. Schedule 7 ALLOWANCES, FEES AND EXPENSES Part 1 ALLOWANCES PAYABLE TO JURORS 1 A person who serves as a juror at an inquest is entitled, in respect of attending the inquest, to receive payments by way of allowance— (a) for travelling and subsistence; (b) for financial loss. 2 But a person is entitled to receive payments by way of allowance for financial loss only if, in consequence of attending the inquest, the person has— (a) incurred expenses (other than on travelling and subsistence) that he or she would otherwise not have incurred, (b) suffered a loss of earnings that he or she would otherwise not have suffered,

6

Added by Criminal Justice and Courts Act 2015 c. 2 Sch.13 para.7 (April 13, 2015).

590 Appendices

or (c) suffered a loss of benefit under the enactments relating to social security that he or she would otherwise not have suffered. 3 Regulations may prescribe the rates of any allowances payable under paragraph 1. Crown Copyright material is reproduced with the permission of the Controller of HMSO and the Queen’s Printer for Scotland 4 The amount due to a person under paragraph 1 is to be calculated by the senior coroner and paid by (or on behalf of) the senior coroner or, where appropriate, the Coroner for Treasure. Part 2 ALLOWANCES PAYABLE TO WITNESSES 5 (1) Regulations may prescribe the allowances that may be paid by (or on behalf of) senior coroners or the Coroner for Treasure— (a) to witnesses; (b) to persons who produce documents or things by virtue of paragraph 1(1) or (2) of Schedule 5; (c) to persons who provide evidence in the form of a written statement by virtue of paragraph 1(2)(a) of that Schedule. (2) In this paragraph “witness” means a person properly attending before a senior coroner to give evidence at an inquest or in connection with the possibility of doing so (whether or not the person actually gives evidence), but does not include— (a) a police officer, or a member of a service police force, attending in his or her capacity as such; (b) a full-time officer of an institution to which the Prison Act 1952 (c. 52) applies in his or her capacity as such; (c) a prisoner in respect of an occasion on which he or she is conveyed in custody to appear before a senior coroner. Part 3 MISCELLANEOUS FEES, ALLOWANCES AND EXPENSES 6 Regulations may prescribe the fees and allowances that may be paid by (or on behalf of) senior coroners to persons who make examinations under section 14. 7 (1) A relevant authority for a coroner area may issue a schedule of the fees, allowances and expenses that may be lawfully paid or incurred by the senior coroner for the area in the performance of the coroner’s functions.

Appendices 591

(2) The power under sub-paragraph (1) includes power to amend or revoke any schedule issued. (3) In exercising the power under sub-paragraph (1) a relevant authority must have regard to any guidance from time to time issued by the Lord Chancellor. (4) A copy of any schedule that is issued or amended must be given to the senior coroner. (5) The reference in sub-paragraph (1) to fees and allowances does not include fees or allowances within any of the preceding paragraphs of this Schedule. 8 Regulations may prescribe the fees payable to coroners for supplying copies of documents in their custody relating to investigations or inquests under this Part of this Act that they are conducting or have conducted. Part 4 MEETING OR REIMBURSING EXPENSES 9 (1) Regulations may make provision for or in connection with meeting or reimbursing— (a) expenses incurred by senior coroners (including expenses incurred under or by virtue of paragraph 4, 5 or 6); (b) expenses incurred by area coroners and assistant coroners; (c) expenses incurred by virtue of Schedule 10 in the conduct of an investigation by the Chief Coroner or the Coroner for Treasure or by a judge, former judge or former coroner. (2) The regulations may make provision— (a) for accounts or evidence relating to expenses to be provided to relevant authorities; (b) for or in connection with the meeting or reimbursement by relevant authorities of expenses of a description specified in the regulations; (c) for or in connection with appeals relating to decisions with respect to meeting or reimbursing expenses. This sub-paragraph is not to be read as limiting the power in sub-paragraph (1). (3) A reference in this paragraph to meeting or reimbursing expenses incurred by a person (“P”) includes a reference to indemnifying P in respect of— (a) costs that P reasonably incurs in or in connection with proceedings in respect of things done or omitted in the exercise (or purported exercise) by P of duties under this Part of this Act; (b) costs that P reasonably incurs in taking steps to dispute claims that might be made in such proceedings; (c) damages awarded against P, or costs ordered to be paid by P, in such proceedings; (d) sums payable by P in connection with a reasonable settlement of such proceedings or of claims that might be made in such proceedings.

592 Appendices

Part 5 SUPPLEMENTAL 10 For the purposes of paragraph 1, a person who attends for service as a juror in accordance with a summons is to be treated as serving as a juror even if he or she is not sworn. 11 (1) The power to make regulations under this Schedule is exercisable by the Lord Chancellor. (2) Regulations under this Schedule may be made only if— (a) the Lord Chief Justice, or (b) a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005 (c. 4)) nominated for the purposes of this sub-paragraph by the Lord Chief Justice, agrees to the making of the regulations. Schedule 8 CHIEF CORONER AND DEPUTY CHIEF CORONERS Appointment of Chief Coroner 1 (1) The Lord Chief Justice may appoint a person as the Chief Coroner. (2) To be eligible for appointment as the Chief Coroner a person must be— (a) a judge of the High Court or a Circuit judge, and (b) under the age of 70. (3) The Lord Chief Justice must consult the Lord Chancellor before making an appointment under this paragraph. (4) The appointment of a person as the Chief Coroner is to be for a term decided by the Lord Chief Justice after consulting the Lord Chancellor. The term must be one that expires before the person’s 70th birthday. (5) In this paragraph “appointment” includes re-appointment. Appointment of Deputy Chief Coroners 2 (1) The Lord Chief Justice may secure the appointment as Deputy Chief Coroners of however many persons the Lord Chief Justice thinks appropriate. (2) To be eligible for appointment as a Deputy Chief Coroner a person must be— (a) a judge of the High Court, a Circuit judge, the Coroner for Treasure or a senior coroner, and (b) under the age of 70.

Appendices 593

(3) The Lord Chief Justice must consult the Lord Chancellor as to— (a) the appropriate number of persons to be appointed as Deputy Chief Coroners; (b) how many of them are to be persons eligible for appointment by virtue of being judges and how many are to be persons eligible for appointment by virtue of being senior coroners or the Coroner for Treasure. (4) The function of appointing a person as a Deputy Chief Coroner is exercisable, in the case of a judge of the High Court or a Circuit judge, by the Lord Chief Justice after consulting the Lord Chancellor. (5) The appointment by the Lord Chief Justice of a person as a Deputy Chief Coroner is to be for a term decided by the Lord Chief Justice after consulting the Lord Chancellor. The term must be one that expires before the person’s 70th birthday. (6) The function of appointing a person as a Deputy Chief Coroner is exercisable, in the case of a senior coroner or the Coroner for Treasure, by the Lord Chancellor at the invitation of the Lord Chief Justice. (7) The appointment by the Lord Chancellor of a person as a Deputy Chief Coroner is to be for a term decided by the Lord Chancellor after consulting the Lord Chief Justice. The term must be one that expires before the person’s 70th birthday. (8) In this paragraph “appointment” includes re-appointment. Resignation or removal 3 (1) The Chief Coroner, or a Deputy Chief Coroner appointed by the Lord Chief Justice, may resign from office by giving notice in writing to the Lord Chief Justice. (2) But the resignation does not take effect unless and until it is accepted by the Lord Chief Justice, who must consult the Lord Chancellor before accepting it. (3) A Deputy Chief Coroner appointed by the Lord Chancellor may resign from office by giving notice in writing to the Lord Chancellor. (4) But the resignation does not take effect unless and until it is accepted by the Lord Chancellor, who must consult the Lord Chief Justice before accepting it. 4 (1) The Lord Chief Justice may, after consulting the Lord Chancellor, remove the Chief Coroner, or a Deputy Chief Coroner appointed by the Lord Chief Justice, from office for incapacity or misbehaviour. (2) The Lord Chancellor may, after consulting the Lord Chief Justice, remove a Deputy Chief Coroner appointed by the Lord Chancellor from office for incapacity or misbehaviour. Remuneration, allowances and expenses 5 The Lord Chancellor may pay to the Chief Coroner— (a) amounts determined by the Lord Chancellor by way of remuneration or allowances;

594 Appendices

(b) amounts determined by the Lord Chancellor towards expenses incurred by the Chief Coroner in performing functions as such. 6 The Lord Chancellor may pay to a Deputy Chief Coroner— (a) amounts determined by the Lord Chancellor by way of remuneration or allowances; (b) amounts determined by the Lord Chancellor towards expenses incurred by that Deputy Chief Coroner in performing functions as such. 7 A reference in paragraph 5 or 6 to paying expenses incurred by a person (“P”) includes a reference to indemnifying P in respect of— (a) costs that P reasonably incurs in or in connection with proceedings in respect of things done or omitted in the exercise (or purported exercise) by P of duties under this Part; (b) costs that P reasonably incurs in taking steps to dispute claims that might be made in such proceedings; (c) damages awarded against P, or costs ordered to be paid by P, in such proceedings; (d) sums payable by P in connection with a reasonable settlement of such proceedings or of claims that might be made in such proceedings. Exercise of Chief Coroner’s functions by Deputy Chief coroner 8 (1) A Deputy Chief Coroner may perform any functions of the Chief Coroner— (a) during a period when the Chief Coroner is absent or unavailable; (b) during a vacancy in the office of Chief Coroner; (c) at any other time, with the consent of the Chief Coroner. (2) Accordingly a reference in this Part to the Chief Coroner is to be read, where appropriate, as including a Deputy Chief Coroner. Staff 9 (1) The Lord Chancellor must appoint staff to assist the Chief Coroner and any Deputy Chief Coroners in the performance of their functions. (2) Such staff are to be appointed on whatever terms and conditions the Lord Chancellor thinks appropriate.

Appendices 595

Schedule 9 MEDICAL ADVISER AND DEPUTY MEDICAL ADVISERS TO THE CHIEF CORONER7 1 Appointment and functions of Medical Adviser to the Chief Coroner The Lord Chancellor may appoint a person as Medical Adviser to the Chief Coroner (“the Medical Adviser”) to provide advice and assistance to the Chief Coroner as to medical matters in relation to the coroner system. 2 Appointment and functions of Deputy Medical Advisers to the Chief Coroner (1) The Lord Chancellor may appoint however many Deputy Medical Advisers to the Chief Coroner (“Deputy Medical Advisers”) the Lord Chancellor thinks appropriate. (2) A Deputy Medical Adviser may perform any functions of the Medical Adviser— (a) during a period when the Medical Adviser is absent or unavailable; (b) during a vacancy in the office of Medical Adviser; (c) at any other time, with the consent of the Medical Adviser. 3 Qualification for appointment A person may be appointed as the Medical Adviser or as a Deputy Medical Adviser only if, at the time of the appointment, he or she— (a) is a registered medical practitioner and has been throughout the previous 5 years, and (b) practises as such or has done within the previous 5 years. 4 Consultation before making appointment Before appointing a person as the Medical Adviser or as a Deputy Medical Adviser, the Lord Chancellor must consult— (a) the Chief Coroner, and (b) the Welsh Ministers. 5 Terms and conditions of appointment The appointment of a person as the Medical Adviser or as a Deputy Medical Adviser is to be on whatever terms and conditions the Lord Chancellor thinks appropriate. 6 Remuneration, allowances and expenses (1) The Lord Chancellor may pay to the Medical Adviser— (a) amounts determined by the Lord Chancellor by way of remuneration or allowances;

7

Schedule 9 is not yet in force.

596 Appendices

(b) amounts determined by the Lord Chancellor towards expenses incurred in performing functions as such. (2) The Lord Chancellor may pay to a Deputy Medical Adviser— (a) amounts determined by the Lord Chancellor by way of remuneration or allowances; (b) amounts determined by the Lord Chancellor towards expenses incurred by that Deputy Medical Adviser in performing functions as such. Schedule 10 INVESTIGATION BY CHIEF CORONER OR CORONER FOR TREASURE OR BY JUDGE, FORMER JUDGE OR FORMER CORONER 1 Investigation by Chief Coroner (1) The Chief Coroner may conduct an investigation into a person’s death. (2) Where the Chief Coroner is responsible for conducting an investigation by virtue of this paragraph— (a) the Chief Coroner has the same functions in relation to the body and the investigation as would be the case if he or she were a senior coroner in whose area the body was situated; (b) no senior coroner, area coroner or assistant coroner has any functions in relation to the body or the investigation. (3) Accordingly a reference in a statutory provision (whenever made) to a senior coroner is to be read, where appropriate, as including the Chief Coroner exercising functions by virtue of this paragraph. 2 Investigation by Coroner for Treasure8 (1) The Chief Coroner may direct the Coroner for Treasure to conduct an investigation into a person’s death. (2) Where a direction is given under this paragraph— (a) the Coroner for Treasure must conduct the investigation; (b) the Coroner for Treasure has the same functions in relation to the body and the investigation as would be the case if he or she were a senior coroner in whose area the body was situated; (c) no senior coroner, area coroner or assistant coroner has any functions in relation to the body or the investigation. (3) Accordingly, a reference in a statutory provision (whenever made) to a senior coroner is to be read, where appropriate, as including the Coroner for Treasure exercising functions by virtue of this paragraph. 3 Investigation by judge, former judge or former coroner (1) If requested to do so by the Chief Coroner, the Lord Chief Justice may nominate a person within sub-paragraph (2) to conduct an investigation into a person’s death. 8

Not yet in force.

Appendices 597

(2) A person is within this sub-paragraph if at the time of the nomination he or she is— (a) a judge of the High Court, (b) a Circuit judge, or (c) a person who has held office as a judge of the Court of Appeal or of the High Court (but no longer does so), and is under the age of 75. (3) The Chief Coroner may request a person who at the time of the request— (a) has held office as a senior coroner (but no longer does so), and (b) is under the age of 75, to conduct an investigation into a person’s death. (4) If a person nominated or requested under this paragraph agrees to conduct the investigation— (a) that person is under a duty to do so; (b) that person has the same functions in relation to the body and the investigation as would be the case if he or she were a senior coroner in whose area the body was situated; (c) no senior coroner, area coroner or assistant coroner has any functions in relation to the body or the investigation. (5) Accordingly a reference in a statutory provision (whenever made) to a coroner is to be read, where appropriate, as including a person who has been nominated or requested under this paragraph to conduct an investigation and has agreed to do so. (6) The Lord Chief Justice must consult the Lord Chancellor before making a nomination under this paragraph. 4 [Repealed, never in force] 5 Investigations already begun A reference in this Schedule to conducting an investigation, in the case of an investigation that has already begun, is to be read as a reference to continuing to conduct the investigation. Schedule 11 AMENDMENTS TO THE CORONERS ACT (NORTHERN IRELAND) 19599 Witnesses and evidence [Omitted]

9

Not yet in force.

Coroners Act 1988 (as amended)1 13.— Order to hold investigation. (1) This section applies where, on an application by or under the authority of the Attorney-General, the High Court is satisfied as respects a coroner (“the coroner concerned”) either— (a) that he refuses or neglects to hold an inquest or an investigation which ought to be held; or (b) where an inquest or an investigation has been held by him, that (whether by reason of fraud, rejection of evidence, irregularity of proceedings, insufficiency of inquiry, the discovery of new facts or evidence or otherwise) it is necessary or desirable in the interests of justice that [an investigation (or as the case may by, another investigation) should be held. (2) The High Court may— (a) order an investigation under Part 1 of the Coroners and Justice Act 2009 to be held into the death either— (i) by the coroner concerned; or (ii) by a senior coroner, area coroner or assistant coroner in the same coroner area; (b) order the coroner concerned to pay such costs of and incidental to the application as to the court may appear just; and (c) where an inquest has been held, quash any inquisition on, or determination or finding made at that inquest. (4) For the purposes of this section, “coroner” means a coroner appointed under section 1 of this Act, or a senior coroner, area coroner or assistant coroner appointed under the Coroners and Justice Act 2009.

1

By Coroners and Justice Act 2009 (Consequential Provisions) Order 2013/1874 (July 25, 2013).

STATUTORY INSTRUMENTS Coroners (Investigations) Regulations 2013 Part 1 Introduction 1. Citation and commencement These Regulations may be cited as the Coroners (Investigations) Regulations 2013 and shall come into force on 25th July 2013. 2.—Interpretation (1) In these Regulations— “2009 Act” means the Coroners and Justice Act 2009; “bank holiday” means a day designated as a bank holiday in England and Wales under the Banking and Financial Dealings Act 1971; “coroner” means— (a) a senior coroner, area coroner or assistant coroner; (b) the Chief Coroner when conducting an investigation under paragraph 1 of Schedule 10 to the 2009 Act; or (c) a judge, former judge or former coroner conducting an investigation under paragraph 3 of Schedule 10 to the 2009 Act; “document” means any medium in which information of any description is recorded or stored; “enforcing authority” has the same meaning as in section 18(7) of the Health and Safety at Work etc. Act 1974; “investigation” means an investigation into a death conducted under Part 1 of the 2009 Act; “working day” means a day that is not a Saturday, a Sunday, a bank holiday, Christmas Day or Good Friday. (2) All references to sections and schedule provisions in these Regulations are references to provisions in the 2009 Act, unless a regulation specifically states otherwise. (3) A reference to a Form in these Regulations is a reference to a Form in the Schedule to these Regulations.

600 Appendices

3.— Application (1) These Regulations shall have effect in relation to any investigation (including any inquest) which has not been completed before 25th July 2013. (2) Any decision of the coroner made in relation to an investigation, or inquest as the case may be, including any decision relating to a post-mortem examination before 25th July 2013 shall stand. Part 2 General 4. Coroner availability for urgent matters A coroner must be available at all times to address matters relating to an investigation into a death which must be dealt with immediately and cannot wait until the next working day. 5.— Register of reported deaths (1) The senior coroner must keep a register of all deaths reported in his or her coroner area. (2) The senior coroner must record in the register, the following information, when known— (a) the date on which a death was reported under section 1; (b) the deceased’s full name, gender, age and full address; (c) any other information that aids the identification of the deceased; and (d) the place of death or, if that is unknown, the place where the body was found. 6. Informing the deceased’s next of kin or personal representative A coroner who is under a duty to investigate a death under section 1, must attempt to identify the deceased’s next of kin or personal representative and inform that person, if identified, of the coroner’s decision to begin an investigation. 7. Delegation of administrative functions A coroner may delegate administrative, but not judicial functions, to coroner’s officers and other support staff. 8. Providing information to the registrar of births and deaths Where a coroner suspends an investigation under paragraph 1, 2, 3 or 5 of Schedule 1 the coroner must provide the registrar of births and deaths with the particulars required to register the death under the Births and Deaths Registration Act 1953. 9.— Interim certificate of fact of death (1) Where a coroner has begun but not yet completed or discontinued an investigation, he or she may, if requested to do so by the next of kin or personal representative of the deceased, provide that person with a certificate of the fact of death. (2) A coroner must use Form 1 when issuing a certificate of the fact of death.

Appendices 601

10. Resumption of investigation Where a coroner resumes a suspended investigation in accordance with paragraph 7 of Schedule 1, the coroner must notify— (a) The next of kin or personal representative of the deceased; and (b) any other interested persons who have made themselves known to the coroner, of the resumption and the reason for the resumption of the investigation. Part 3 Post-mortem examinations 11. Delay in post-mortem examination to be avoided A coroner who considers that a post-mortem examination should be made under section 14, shall request a suitable practitioner to make that post-mortem examination as soon as reasonably practicable. 12. Post-mortem examination where homicide offence is suspected Where a coroner is informed by a chief officer of police that a homicide offence is suspected in connection with the death of the deceased, the coroner must consult that chief officer of police about who should make the post-mortem examination. 13.— Notification of post-mortem examination (1) Where a coroner has requested a suitable practitioner to make a post-mortem examination, the coroner must notify the persons or bodies listed in paragraph (3) of the date, time and place at which that post-mortem examination is to be made. (2) A coroner need not give such notification, where it is impracticable or where to do so would cause the post-mortem examination to be unreasonably delayed. (3) The persons to be notified are— (a) the next of kin or the personal representative of the deceased or any other interested person who has notified the coroner in advance of his or her desire to be represented at the post-mortem examination; (b) the deceased’s regular medical practitioner, if he or she has notified the coroner of his or her desire to be represented at the post-mortem examination; (c) if the deceased died in hospital, that hospital; (d) if the death of the deceased may have been caused by an accident or disease which must be reported to an enforcing authority, to that enforcing authority or the appropriate inspector or representative of that authority; (e) a Government department which has notified the coroner of its desire to be represented at the examination; and (f) if the chief officer of police has notified the coroner of his or her desire to be represented at the examination, the chief officer of police. (4) Any of the persons or bodies listed in paragraph (3) are entitled to be represented at a post-mortem examination by a medical practitioner, or if they are a medical practitioner, may attend themselves.

602 Appendices

(5) The following persons may attend a post-mortem examination— (a) A representative of the chief officer of police from the police force of which he or she is chief officer; and (b) any other person including a trainee doctor, medical student or other medical practitioner but only with the consent of the coroner. 14.— Preservation or retention of material from a post-mortem examination (1) Where a suitable practitioner conducts a post-mortem examination under section 14 and preserves or retains material which in his or her opinion relates to the cause of death or identity of the deceased, he or she must provide the coroner with written notification of that fact. (2) A suitable practitioner who preserves or retains material under paragraph (1) must provide the coroner with a written notification that— (a) identifies the material being preserved or retained; and (b) explains why that practitioner is of the opinion set out in paragraph (1). (3) A written notification under paragraph (2) may— (a) specify the period of time for which the suitable practitioner believes the material should be preserved or retained; and (b) specify different periods of time in relation to different preserved or retained material. (4) On receiving a notification under paragraph (1), the coroner must notify the suitable practitioner of the period of time for which he or she requires the material to be preserved or retained for the purposes of fulfilling his or her functions under the 2009 Act. (5) On making the notification under paragraph (4) the coroner must also notify, where known— (a) the next of kin or personal representative of the deceased; and (b) any other relative of the deceased who has notified the coroner of his or her desire to be represented at the post-mortem examination, that material is being preserved or retained, the period or periods for which it is required to be preserved or retained and the options for dealing with the material under paragraph (6) once the period or periods of preservation or retention has or have expired. (6) The options for dealing with material are— (a) disposal of the material by burial, cremation or other lawful disposal by the suitable practitioner; (b) return of the material to a person listed in sub-paragraph (a) or (b) of paragraph (5); or (c) retention of the material with the consent of a person listed in sub-paragraph (a) or (b) of paragraph (5) for medical research or other purposes in accordance with the Human Tissue Act 2004.

Appendices 603

15.— Further provisions relating to preservation or retention of material from post-mortem examinations (1) A coroner who— (a) receives a request from a prosecuting authority, Provost Marshal or the Director of Service Prosecutions under paragraph 1 of Schedule 1 to suspend an investigation because a person may be charged with an offence in relation to the death of the deceased; or (b) becomes aware or is informed under paragraph 2 of Schedule 1 that a person has been charged with an offence in relation to, or connected with, the death of the deceased, must notify the chief officer of police or prosecuting authority, of any period for which the coroner requires material to be preserved or retained under regulation 14(4). (2) Where the coroner is informed that a public inquiry is to be held instead of an inquest, the coroner must notify the chairman of that inquiry of any period for which the coroner requires material to be preserved or retained under regulation 14(4). (3) A coroner may from time to time vary a period notified under regulation 14(4) and must notify both the suitable practitioner and any person notified under regulation 14(5), 15(1) and 15(2) of the variation. (4) Where a suitable practitioner has received a notification from a coroner under regulation 14(4) and the suitable practitioner believes that the material should be preserved or retained for a different period, the suitable practitioner may request that the coroner vary the time by providing a notification in accordance with regulation 14(2). (5) Where a suitable practitioner has retained material in accordance with regulation 14 and the period notified under regulation 14(4) has expired, that suitable practitioner must record the fact that— (a) the material has been disposed by the suitable practitioner or on behalf of the suitable practitioner; (b) the material has been delivered into the possession of a specified person; or (c) the material has been dealt with in accordance with regulation 14(6). (6) Any record made by a suitable practitioner under paragraph (5) must be retained by him or her. 16.— Post-mortem examination report (1) A suitable practitioner, on completion of a post-mortem examination, must report to the coroner as soon as practicable after the examination has been made. (2) Unless authorised in writing by the coroner, the suitable practitioner who made the post-mortem examination may not supply any other person with the post-mortem examination report or any copy of that report. 17. Discontinuance of investigation where cause of death is revealed by post-mortem examination Where a coroner discontinues an investigation in accordance with section 4(1) because the post-mortem examination reveals the cause of death, the coroner must record the cause of death and notify the next of kin or personal representative of the deceased using Form 2.

604 Appendices

Part 4 Transfer of investigations 18.— Transfer of investigations (1) Where Coroner A and Coroner B agree to transfer an investigation under section 2, or the Chief Coroner directs Coroner B to conduct an investigation under section 3— (a) Coroner A must provide Coroner B with all relevant evidence, documents and information; (b) Coroner B must notify the next of kin or personal representative of the deceased of the transfer; and (c) Coroner B must notify any other interested persons who have made themselves known to the coroner of the transfer. (2) A coroner must fulfil their obligations under this regulation within 5 working days of the date the transfer is either agreed or directed, unless there are exceptional circumstances. 19.— Costs of a transferred investigation (1) Where Coroner A and Coroner B agree to transfer an investigation in accordance with section 2, the relevant authority for Coroner B’s coroner area will be responsible for all costs related to the transferred investigation and any associated inquest from the date the transfer is made. (2) Where the Chief Coroner directs Coroner B to conduct an investigation in accordance with section 3, the relevant authority for Coroner A’s coroner area shall be responsible for all costs related to the transferred investigation and any associated inquest from the date the transfer is made, unless the Chief Coroner otherwise directs. 20.— Release of bodies (1) A coroner must release the body for burial or cremation as soon as is reasonably practicable. (2) Where a coroner cannot release the body within 28 days of being made aware that the body is within his or her area, the coroner must notify the next of kin or personal representative of the deceased of the reason for the delay. Part 5 Powers in relation to bodies 21.— Burial or cremation order (1) A coroner may only issue an order authorising the burial or cremation of a body where the coroner no longer needs to retain the body for the purposes of the investigation. (2) A coroner must use Form 3 when issuing an order to bury a body. 22.— Exhumation (1) A coroner may issue a direction to exhume a body lying within England and Wales. (2) Where such a direction is made the coroner must use Form 4.

Appendices 605

Part 6 Disclosure and provision of information 23. Part 3 of the Coroners (Inquests) Rules 2013 applies to the disclosure of documents to an interested person made by the coroner at any time during the course of an investigation. 24.— Providing information to a Local Safeguarding Children Board (1) Where a coroner decides to conduct an investigation into a death under section 1 or directs that a post-mortem examination should be made under section 14, and the coroner believes the deceased was under the age of 18, the coroner must notify the appropriate Local Safeguarding Children Board within 3 days of making the decision or direction. (2) A coroner must provide all information to the appropriate Local Safeguarding Children Board. (3) In this regulation— “the appropriate Local Safeguarding Children Board” means the Board established under section 13(1) or 31(1) of the Children Act 2004 within whose area the deceased died or within whose area the body was found; and “information” means any information that is— (a) held by the coroner for the purposes of an investigation under Part 1 of the 2009 Act; and (b) relates to the death of a person who was or may have been under the age of 18 at the time of death. 25.— Power of the Chief Coroner to require information (1) The Chief Coroner may at any time require information from a coroner in relation to a particular investigation or investigations that have or are being conducted by that coroner. (2) A coroner must provide the Chief Coroner with the information requested under paragraph (1). 26.— Investigations lasting more than a year (1) Where an investigation has not been completed or discontinued within a year of the date that the death was reported, the coroner must notify the Chief Coroner of that fact as soon as is reasonably practicable from the date that the investigation becomes a year old and explain why the investigation has not been completed or discontinued. (2) A coroner who completes or discontinues an investigation that the coroner has previously notified to the Chief Coroner under paragraph (1), must notify the Chief Coroner of the date the investigation is completed or discontinued and provide a reason for any further delay in completing or discontinuing the investigation. 27.— Retention and release of documents (1) Any document in the possession of a coroner in connection with an investigation or post-mortem examination must, unless a court or the Chief Coroner otherwise

606 Appendices

directs, be retained by or on behalf of the coroner for at least 15 years from the date that the investigation is completed. (2) The coroner may provide any document or copy of any document to any person who in the opinion of the coroner is a proper person to have possession of it. (3) A coroner may charge for the provision of any document or copy of any document in accordance with any regulations made under Schedule 7. Part 7 Action to prevent other deaths 28.— Report on action to prevent other deaths (1) This regulation applies where a coroner is under a duty under paragraph 7(1) of Schedule 5 to make a report to prevent other deaths. (2) In this regulation, a reference to “a report” means a report to prevent other deaths made by the coroner. (3) A report may not be made until the coroner has considered all the documents, evidence and information that in the opinion of the coroner are relevant to the investigation. (4) The coroner— (a) must send a copy of the report to the Chief Coroner and every interested person who in the coroner’s opinion should receive it; (b) must send a copy of the report to the appropriate Local Safeguarding Children Board (which has the same meaning as in regulation 24(3)) where the coroner believes the deceased was under the age of 18; and (c) may send a copy of the report to any other person who the coroner believes may find it useful or of interest. (5) On receipt of a report the Chief Coroner may— (a) publish a copy of the report, or a summary of it, in such manner as the Chief Coroner thinks fit; and (b) send a copy of the report to any person who the Chief Coroner believes may find it useful or of interest. 29.— Response to a report on action to prevent other deaths (1) This regulation applies where a person is under a duty to give a response to a report to prevent other deaths made in accordance with paragraph 7(1) of Schedule 5. (2) In this regulation, a reference to “a report” means a report to prevent other deaths made by the coroner. (3) The response to a report must contain— (a) details of any action that has been taken or which it is proposed will be taken by the person giving the response or any other person whether in response to the report or otherwise and set out a timetable of the action taken or proposed to be taken; or (b) an explanation as to why no action is proposed. (4) The response must be provided to the coroner who made the report within 56 days of the date on which the report is sent.

Appendices 607

(5) The coroner who made the report may extend the period referred to in paragraph (4) (even if an application for extension is made after the time for compliance has expired). (6) On receipt of a response to a report the coroner— (a) must send a copy of the response to the report to the Chief Coroner; (b) must send a copy to any interested persons who in the coroner’s opinion should receive it; and (c) may send a copy of the response to any other person who the coroner believes may find it useful or of interest. (7) On receipt of a copy under paragraph (6)(a) the Chief Coroner may— (a) publish a copy of the response, or a summary of it, in such manner as the Chief Coroner thinks fit; and (b) send a copy of the response to any person who the Chief Coroner believes may find it useful or of interest (other than a person who has been sent a copy of the response under paragraph (6)(b) or (c)). (8) A person giving a response to a report may make written representations to the coroner about— (a) the release of the response; or (b) the publication of the response. (9) Representations under paragraph (8) must be made to the coroner no later than the time when the response to the report to prevent other deaths is provided to the coroner under paragraph (4). (10) The coroner must pass any representations made under paragraph (8) to the Chief Coroner who may then consider those representations and decide whether there should be any restrictions on the release or publication of the response.

608 Appendices

Schedule 1 Forms Form 1 Coroner’s certificate of fact of death To whom it may concern, C.D. (insert name): of (insert address): died on (insert date): The precise cause of death, *was as follows/*has yet to be established *Delete as appropriate Date: Signature: Coroner:

Form 2 Notice of Discontinuance To (insert name): The investigation into the death of C.D. has been discontinued under section 4 of the Coroners and Justice Act 2009. The investigation was discontinued for the following reason(s): Date: Signature: Coroner:

Appendices 609

Form 3 Order for burial I authorise the burial C.D. (insert name) aged, (insert age) who died at, (insert time and place) on, (insert date) Date: Signature: Coroner:

Form 4 Direction to exhume To (insert the names of the Minister and churchwardens or other persons having control over the churchyard, cemetery, or other place where the body is buried). I have been informed that the body of C.D., has been buried in (insert the named of the churchyard, cemetery or other place where the body is buried), and it appears to me that it is necessary for the body to be exhumed and examined for the purposes of: 1. conducting and investigation into the death of the deceased under Part 1 of the Coroners and Justice Act 2009; or 2. discharging a coroner’s function in relation to the body or death of the deceased, namely: (insert function) I direct that you allow the body of C.D. to be exhumed. Date: Signature: Coroner:

PROCEDURAL RULES Coroners (Inquests) Rules 2013 Part 1 Introduction 1. Citation and commencement These Rules may be cited as the Coroners (Inquests) Rules 2013 and shall come into force on 25th July 2013. 2.— Interpretation (1) In these Rules— “the 2009 Act” means the Coroners and Justice Act 2009; “bank holiday” means a day designated as a bank holiday in England and Wales under the Banking and Financial Dealings Act 1971; “copy” means in relation to a document, anything on to which information recorded in the document has been copied, by whatever means and whether directly or indirectly; “coroner” means— (a) a senior coroner, area coroner or assistant coroner; (b) the Chief Coroner when conducting an inquest; or (c) a judge, former judge or former coroner conducting an inquest in accordance with Schedule 10 to the 2009 Act; “document” means any medium in which information of any description is recorded or stored; “working day” means a day that is not a Saturday, a Sunday, a bank holiday, Christmas Day or Good Friday. (2) All references to section and schedule provisions in these Rules are references to provisions in the 2009 Act, unless a rule specifically states otherwise. (3) Any reference to a Form in these Rules is a reference to a Form in the Schedule to these Rules. 3.— Application to existing inquests (1) These Rules apply to any inquest which has not been completed before 25th July 2013. (2) Any direction, time limit, adjournment or other decision made by the coroner in relation to an inquest made before 25th July 2013 shall stand. Part 2 Formalities 4. This Part applies where a coroner is under a duty to hold an inquest under section 6.

Appendices 611

5.— Opening of an inquest (1) An inquest must be opened as soon as reasonably practicable after the date on which the coroner considers that the duty under section 6 applies. (2) At the opening of the inquest, the coroner must, where possible, set the dates on which any subsequent hearings are scheduled to take place. 6. Pre-inquest review hearing A coroner may at any time during the course of an investigation and before an inquest hearing hold a pre-inquest review hearing. 7. Days on which an inquest may be held An inquest must be held on a working day, unless the coroner considers that there is an urgent reason for holding it on some other day. 8. Timing of an inquest A coroner must complete an inquest within six months of the date on which the coroner is made aware of the death, or as soon as is reasonably practicable after that date. 9.— Notification of inquest hearing arrangements (1) A coroner must notify the next of kin or personal representative of the deceased of the date, time and place of the inquest hearing within one week of setting the date of the inquest hearing. (2) A coroner must notify any other interested persons who have made themselves known to the coroner of the date, time and place of the inquest hearing within one week of setting the date of the inquest hearing. (3) Where an inquest hearing is to be held, the coroner must make details of the date, time and place of the inquest hearing publicly available before the inquest hearing commences. 10.— Coroner to notify interested persons of any alteration of arrangements for an inquest hearing (1) Where the date, time or place of the inquest hearing is altered the coroner must notify the next of kin or personal representative of the deceased, and any other interested persons who have made themselves known to the coroner, of the alteration within one week of the decision to alter. (2) The coroner must make the details of any alteration made under paragraph (1) publicly available within one week of the decision to alter. 11.— Inquest hearings to be held in public (1) A coroner must open an inquest in public. (2) Where the coroner does not have immediate access to a court room or other appropriate premises, the coroner may open the inquest privately and then announce that the inquest has been opened at the next inquest hearing held in public. (3) An inquest hearing and any pre-inquest hearing must be held in public unless paragraph (4) or (5) applies.

612 Appendices

(4) A coroner may direct that the public be excluded from an inquest hearing, or any part of an inquest hearing if the coroner considers it would be in the interests of national security to do so. (5) A coroner may direct that the public be excluded from a pre-inquest review hearing if the coroner considers it would be in the interests of justice or national security to do so. Part 3 Disclosure 12. This Part applies to the disclosure of documents by the coroner during or after the course of an investigation, pre-inquest review or inquest. 13.— Disclosure of documents at the request of an interested person (1) Subject to rule 15, where an interested person asks for disclosure of a document held by the coroner, the coroner must provide that document or a copy of that document, or make the document available for inspection by that person as soon as is reasonably practicable. (2) Documents to which this rule applies include— (a) any post-mortem examination report; (b) any other report that has been provided to the coroner during the course of the investigation; (c) where available, the recording of any inquest hearing held in public, but not in relation to any part of the hearing from which the public was excluded under rule 11(4) or (5); (d) any other document which the coroner considers relevant to the inquest. 14. Managing disclosure A coroner may— (a) disclose an electronic copy of a document instead of, or in addition to, a paper copy; (b) disclose a redacted version of all or part of a document; or (c) make a document available for inspection at a particular time and place. 15. Restrictions on disclosure A coroner may refuse to provide a document or a copy of a document requested under rule 13 where— (a) (b) (c) (d) (e)

there is a statutory or legal prohibition on disclosure; the consent of any author or copyright owner cannot reasonably be obtained; the request is unreasonable; the document relates to contemplated or commenced criminal proceedings; or the coroner considers the document irrelevant to the investigation.

16. Costs of disclosure A coroner may not charge a fee for any document or copy of any document, disclosed to an interested person before or during an inquest.

Appendices 613

Part 4 Management of the inquest hearing 17.— Evidence by video link (1) A coroner may direct that a witness may give evidence at an inquest hearing through a live video link. (2) A direction may not be given under paragraph (1) unless the coroner determines that giving evidence in the way proposed would improve the quality of the evidence given by the witness or allow the inquest to proceed more expediently. (3) Before giving a direction under paragraph (1), the coroner must consider all the circumstances of the case, including in particular— (a) any views expressed by the witness or any interested person; (b) whether it would be in the interests of justice or national security to give evidence by video link; and (c) whether in the opinion of the coroner, giving evidence by video link would impede the effectiveness of the questioning of the witness. (4) A direction may be given under paragraph (1)— (a) on an application by the witness, or in the case of a child witness the parent or legal guardian of that witness; (b) on an application by an interested person; or (c) on the coroner’s own initiative. 18.— Evidence given from behind a screen (1) A coroner may direct that a witness may give evidence at an inquest hearing from behind a screen. (2) A direction may not be given under paragraph (1) unless the coroner determines that giving evidence in the way proposed would be likely to improve the quality of the evidence given by the witness or allow the inquest to proceed more expediently. (3) In making that determination, the coroner must consider all the circumstances of the case, including in particular— (a) any views expressed by the witness or an interested person; (b) whether it would be in the interests of justice or national security to allow evidence to be given from behind a screen; and (c) whether giving evidence from behind a screen would impede the effectiveness of the questioning of the witness by an interested person or a representative of the interested person. (4) A direction may be given under paragraph (1)— (a) on the application by the witness, or in the case of a child witness the parent or legal guardian of that witness; (b) on an application of an interested person; or (c) on the coroner’s own initiative. 19.— Entitlement to examine witnesses (1) A coroner must allow any interested person who so requests, to examine any witness either in person or by the interested person’s representative. (2) A coroner must disallow any question put to the witness which the coroner considers irrelevant.

614 Appendices

20.— Evidence given on oath or affirmation (1) A witness providing evidence at an inquest hearing shall be examined by the coroner on oath or affirmation subject to paragraph (2). (2) A child under the age of 14, or a child aged 14 or over who is considered by the coroner to be unable to understand the nature of an oath or affirmation, may, on promising to tell the truth, be permitted to give unsworn evidence. 21. Examination of witnesses Unless the coroner otherwise determines, a witness at an inquest hearing must be examined in the following order— (a) first by the coroner; (b) then by any interested person who has asked to examine the witness; and (c) if the witness is represented at the inquest, lastly by the witness’s representative. 22.— Self incrimination (1) No witness at an inquest is obliged to answer any question tending to incriminate him or her. (2) Where it appears to the coroner that a witness has been asked such a question, the coroner must inform the witness that he or she may refuse to answer it. 23.— Written evidence (1) Written evidence as to who the deceased was and how, when and where the deceased came by his or her death is not admissible unless the coroner is satisfied that— (a) it is not possible for the maker of the written evidence to give evidence at the inquest hearing at all, or within a reasonable time; (b) there is a good and sufficient reason why the maker of the written evidence should not attend the inquest hearing; (c) there is a good and sufficient reason to believe that the maker of the written evidence will not attend the inquest hearing; or (d) the written evidence (including evidence in admission form) is unlikely to be disputed. (2) Before admitting such written evidence the coroner must announce at the inquest hearing— (a) what the nature of the written evidence to be admitted is; (b) the full name of the maker of the written evidence to be admitted in evidence; (c) that any interested person may object to the admission of any such written evidence; and (d) that any interested person is entitled to see a copy of any written evidence if he or she so wishes. (3) A coroner must admit as evidence at an inquest hearing any document made by a deceased person if the coroner is of the opinion that the contents of the document are relevant to the purposes of the inquest. (4) A coroner may direct that all or parts only of any written evidence submitted under this rule may be read aloud at the inquest hearing.

Appendices 615

24.— Inquiry findings (1) A coroner may admit the findings of an inquiry, including any inquiry under the Inquiries Act 2005, if the coroner considers them relevant to the purposes of the inquest. (2) Before admitting such inquiry findings as evidence, the coroner must announce publicly that— (a) the findings of the inquiry may be admitted as evidence; (b) the title of the inquiry, date of publication and a brief account of the findings; and (c) that any interested person is entitled to see a copy of the inquiry findings if he or she so wishes. 25.— Adjournment and resumption of an inquest (1) A coroner may adjourn an inquest if the coroner is of the view that it is reasonable to do so. (2) The coroner must inform the next of kin or personal representative of the deceased and any other interested persons who have made themselves known to the coroner as soon as reasonably practicable of the decision to adjourn, the date of the decision to adjourn and the reason for the adjournment. (3) The coroner must inform the next of kin or personal representative of the deceased and any other interested persons who have made themselves known to the coroner as soon as reasonably practicable of the date, time and place at which an adjourned inquest is to be resumed. (4) A coroner must adjourn an inquest and notify the Director of Public Prosecutions, if during the course of the inquest, it appears to the coroner that the death of the deceased is likely to have been due to a homicide offence and that a person may be charged in relation to the offence. 26. Recording inquest hearings A coroner must keep a recording of every inquest hearing, including any pre-inquest review hearing. 27. No address as to facts No person may address the coroner or the jury as to the facts of who the deceased was and how, when and where the deceased came by his or her death. Part 5 Jury inquests 28. This Part applies to inquests heard or to be heard with a jury. 29.— Method of summoning jurors (1) A juror must be summoned using Form 1. (2) Form 1 must be sent by post with a return envelope, to the juror or delivered by hand at his or her address as shown in the electoral register.

616 Appendices

30. Summoning in exceptional circumstances If it appears to the coroner that a jury will be, or probably will be, incomplete, the coroner may require any persons up to the number needed who are in, or in the vicinity of, the place of the inquest hearing to be summoned (without any written notice) for jury service. 31. Certificate of attendance A person duly attending an inquest hearing to serve on a jury in compliance with a summons issued under rule 29 or rule 30 is entitled on request to the coroner to a certificate recording that fact. 32. Validity of proceedings where jury not present Where an inquest hearing begins without a jury but a jury is subsequently summoned, the validity of anything done by the coroner before the jury was summoned is still effective. 33. Summing up and directions to the jury Where the coroner sits with a jury, the coroner must direct the jury as to the law and provide the jury with a summary of the evidence. Part 6 Record 34. Record of the inquest A coroner or in the case of an inquest heard with a jury, the jury, must make a determination and any findings required under section 10 using Form 2.

Appendices 617

Schedule

Form 1 Juror Summons Coroner (insert name) summons— (insert juror name) of (insert juror address) You are hereby summoned to appear before him or her as a juror on (insert date, time and place) until you are no longer needed. You must attend at the date, time and place specified above unless you are told by an officer authorised by the coroner that you do not need to do so. Date: Coroner: Coroner signature: YOU MUST COMPLETE THE ATTACHED FORM AND RETURN IT TO (Insert name of the officer authorised by the coroner) IN THE ENVELOPE PROVIDED WITHIN THREE DAYS OF THE RECEIPT OF THIS SUMMONS WARNING: IT IS AN OFFENCE TO SERVE ON A JURY AT AN INQUEST IF YOU ARE DISQUALIFIED FROM JURY SERVICE (SEE DETACHABLE FORM BELOW) AND KNOW THAT YOU ARE DISQUALIFIED FROM JURY SERVICE. A person guilty of such an offence is liable on summary conviction to a fine not exceeding level 5 on the standard scale. IT IS AN OFFENCE TO REFUSE WITHOUT REASONABLE EXCUSE TO ANSWER THE QUESTIONS IN THE DETACHABLE FORM AS TO WHETHER YOU ARE QUALIFIED TO SERVE AS A JUROR AT THE INQUEST, TO GIVE AN ANSWER TO SUCH A QUESTION KNOWING THE ANSWER TO BE FALSE IN A MATERIAL PARTICULAR, OR RECKLESSLY TO GIVE AN ANSWER TO SUCH A QUESTION THAT IS FALSE IN A MATERIAL PARTICULAR. A person guilty of such an offence is liable on summary conviction to a fine not exceeding level 3 on the standard scale. IT IS AN OFFENCE FOR A PERSON WHO IS DULY SUMMONED AS A JUROR AT AN INQUEST TO MAKE ANY FALSE REPRESENTATION, OR TO CAUSE OR PERMIT TO BE MADE ANY FALSE REPRESENTATION ON YOUR BEHALF WITH THE INTENTION OF EVADING SERVICE AS A JUROR AT AN INQUEST. A person guilty of such an offence is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

618 Appendices

IT IS AN OFFENCE FOR A PERSON TO MAKE OR CAUSE TO BE MADE, ON BEHALF OF A PERSON WHO HAS BEEN DULY SUMMONED AS A JUROR AT AN INQUEST, ANY FALSE REPRESENTATION WITH THE INTENTION OF ENABLING THE OTHER PERSON TO EVADE SERVICE AS A JUROR AT AN INQUEST. A person guilty of such an offencc is liable on summary conviction to a fine not exceeding level 3 on the standard scale. A coroner may impose a fine not exceeding £1000 on you if you fail without reasonable excuse to attend in accordance with the summons, or attend in accordance with the summons but refuse without reasonable excuse to serve as a juror. A fine may not be imposed under this paragraph unless the summons was served on you not later than 14 days before the day on which you were/are required to attend. ≤DETACHABLE FORM≥ This form should be returned in the envelope provided within three days of receiving it. Jurors details— Surname: Forename: Date of birth: Address: Telephone number: (If possible please provide a telephone number where you can be contacted between 9a.m. and 5p.m.) INFORMATION GIVEN WILL BE TREATED IN THE STRICTEST CONFIDENCE YOU ARE QUALIFIED for jury service if you— (a) are not less than eighteen not more than seventy years of age; (if you will be under eighteen on or have reached your seventieth birthday by the date on which your appearance is required you will NOT be eligible to serve as a juror) (b) are registered as a parliamentary or local government elector; (c) have lived in the United Kingdom, the Channel Islands or the Isle of Man for a period of at least five years since attaining the age of thirteen; and (d) are not one of the persons described in Parts I and II of Schedule I to the Juries Act 1974.

Appendices 619

1. Are you QUALIFIED to serve as a juror? Please tick the appropriate:

YES NO If you have answered NO to question 1, please answer question 2 and sign the form at the end. If you have answered YES and wish to be excused from jury service on this occasion, please go to question 3 below and then sign the form at the end 2. I AM NOT QUALIFIED to serve on a jury because— 3. YOU ARE ENTITLED TO BE EXCUSED if you— (a) are a full time serving member of Her Majesty’s navy, military or air forces and your commanding officer certifies that it would be prejudicial to the efficiency of the service if you were required to be absent from duty; (b) are a coroner within the same coroner area in which you have been summoned to attend as a juror; or (c) are otherwise excused from attending by the coroner before whom you are summoned. YOU MAY BE EXCUSED at the discretion of the Coroner or of the officer authorised by the Coroner on the grounds of poor health, illness, physical disability, insufficient understanding of English, holiday arrangements or any other good reason. I WISH TO BE EXCLUDED from jury service on this occasion because— (if you have any doubts as to whether you may be excused from jury service please write to the officer authorised by the Coroner at the address on the front of the summons.) When yon attend as a juror you may be discharged if there is doubt as to your capacity to serve on a jury because of physical disability or insufficient understanding of English. I HAVE READ THE WARNING IN THE SUMMONS AND THE INFORMATION I HAVE GIVEN IS TRUE. Signed: Dated:

620 Appendices

Form 2 Record of an Inquest The following is the record of the inquest (including the statutory determination and, where required, findings)—

1. Name of the deceased (if known): 2. Medical cause of death: 3. How, when and where, and for investigations where section 5(2) of the Coroners and Justice Act 2009 applies, in what circumstances the deceased came by his or her death: (see note (ii)): 4. Conclusion of the coroner/jury as to the death: (see notes (i) and (ii): 5. Further particulars required by the Births and Deaths Registration Act 1953 to be registered concerning the death: 1.

2.

3.

Date and Name and surname Sex place of death of deceased

4. Maiden surname of woman who has married

5.

6.

Date and place of birth

Occupation and usual address

Signature of coroner (and jurors): NOTES: (i) One of the following short-form conclusions may be adopted:— I. accident or misadventure II. alcohol / drug related

III. industrial disease IV. lawful/ unlawful killing V. natural causes VI. open VII. road traffic collision VIII. stillbirth IX. suicide (ii) As an alternative, or in addition to one of the short-form conclusions listed under NOTE (i), the coroner or where applicable the jury, may make a brief narrative conclusion. (iii) The standard of proof required for the short form conclusions of “unlawful killing” and “suicide” is the criminal standard of proof. For all other short-form conclusions and a narrative statement the standard of proof is the civil standard of proof.

GUIDANCE Chief Coroner’s Guidance No. 5 Reports to Prevent Future Deaths Introduction1 1. Rule 43 reports were replaced on implementation of the Coroners and Justice Act 2009 with Reports on Action to Prevent Future Deaths (‘reports’) under paragraph 7, schedule 5, of the 2009 Act and regulations 28 and 29 of the Coroners (Investigations) Regulations 2013. For short they can be referred to as PFDs or PFD reports. 2. These reports are important. Coroners have a duty not just to decide how somebody came by their death but also, where appropriate, to report about that death with a view to preventing future deaths. A bereaved family wants to be able to say: ‘His death was tragic and terrible, but at least it shouldn’t happen to somebody else.’ 3. The importance of PFD reports is emphasised by their upgrading by Parliament from a rule (rule 43 of the Coroners Rules 1984) to part of the 2009 Act (para.7, schedule 5) and by changing the coroner’s discretion to make a report to a duty to make a report where a concern is identified. 4. Responsibility for reports was transferred from the Ministry of Justice to the Chief Coroner’s office on 1 April 2013. The Chief Coroner has expressed his commitment to taking value from reports with a view to encouraging persons and organisations to make changes which may prevent future deaths. 5. Broadly speaking reports should be intended to improve public health and safety. They should not be unduly general in their content; sweeping generalisations should be avoided. They should be clear, brief, focused, meaningful and, wherever possible, designed to have practical effect. 6. Reports are important, but they are ‘ancillary to the inquest procedure and not its mainspring’ (Re Kelly (deceased) (1996) 161 JP 417. In an Article 2 inquest the report may complete the state’s duty to inquire fully (see R (Lewis) v HM Coroner for the Mid and North Division of the County of Shropshire [2009] EWCA Civ 1403). 7. Coroners should look at the precise wording of the Act and the Regulations. 8. This Guidance is not intended to cover every possible situation in which the duty to make a report may arise. It is for each coroner to decide on a case by case basis whether he or she has a statutory duty to make a report. 9. Please use the template documents for making reports, with a simple specimen example, which are attached at Annex A. For ease of use in the Chief Coroner’s office the templates should not be amended or altered.

1 As always I am very grateful for the input of many coroners into this Guidance, especially Derek Winter, HM Coroner for the City of Sunderland.

622 Appendices

The coroner’s duty 10. The coroner’s duty arises in the following circumstances: (1) The coroner has been conducting an investigation into a person’s death. Normally the investigation will be complete, with the inquest concluded, but not necessarily (see below). (2) Something revealed by the investigation (including evidence at the inquest) gives rise to a concern. The coroner is not restricted to matters revealed in evidence at the inquest (as was the case with rule 43 reports). The matter giving rise to concern will usually be revealed by evidence at the inquest, but it may be something revealed at any stage of a coroner’s investigation. Giving rise to a concern is a relatively low threshold (Coroners Inquests into the London Bombings of 7 July 2005, per Lady Justice Heather Hallett, Assistant Deputy Coroner for Inner West London, ruling 6 May 2011, transcript p15). (3) The concern is that circumstances creating a risk of further deaths will occur, or will continue to exist, in the future. It is concern of a risk to life caused by present or future circumstances (ibid. p15). (4) In the coroner’s opinion, action should be taken to prevent those circumstances happening again or to reduce the risk of death created by them. (5) If (1)–(4) apply, the coroner has a duty to report (‘must report’) the matter to a person or organisation who the coroner believes may have power to take such action. Pre-condition to making a report 11. It is a pre-condition to making a report that ‘the coroner has considered all the documents, evidence and information that in the opinion of the coroner is relevant to the investigation’ (regulation 28(3)). The timing of the report 12. Normally the report will be made after the inquest is concluded. That is because of the pre-condition to making a report provided by regulation 28(3), above. 13. Previously, under the version of rule 43 which was substituted by the Coroners (Amendment) Rules 2008, the coroner’s concern could only arise from evidence given at the inquest. Now, however, the concern may arise from ‘anything revealed by the investigation’ (including the inquest). The wording of para.7 of schedule 5 therefore permits a report to be made before an inquest is heard (so long as the pre-condition is complied with). Where, for example, the coroner concludes that there is an urgent need for action he/she may report with a view to action being taken without delay. The regulation 28(3) pre-condition may be satisfied during the investigation but before inquest when the coroner takes the view that there is unlikely to be more material to come on the matter of concern. Procedure at inquest 14. It was not the intention when changes were made to rule 43 in 2008, nor is it the intention under the 2009 Act, that inquests should be lengthened or their scope widened for the purpose of hearing representations. Although a report may become an i mportant

Appendices 623

aspect of the outcome of an investigation, it is essentially ancillary to the primary purpose of an inquest which is to determine the statutory determinations, findings and conclusions relating to the death as recorded in the Record of the inquest (section 10 of the Act, rule 34 and Schedule Form 2 of the Rules). 15. Coroners may hear and give weight to representations by interested persons at the inquest as they see fit. Sometimes it may be necessary to hear some evidence which may be relevant for the purpose of making a report but not strictly relevant to the outcome of the inquest. For example, a medical witness could, where appropriate, enlarge on his or her earlier evidence while the jury is deliberating. Adding to an inquest with lengthy additional evidence or conducting a separate lengthy additional hearing should, however, be avoided. An inquest is an inquest, not a public inquiry. The nature of the report 16. Where a coroner has a duty to report, the report must state the coroner’s concerns and that in the coroner’s opinion action should be taken to prevent future deaths. The report must be sent to a person or organisation who the coroner believes has power to take such action (para.7(1)(c), schedule 5 of the 2009 Act). 17. The report need not be restricted to matters causative (or potentially causative) of the death in question. Paragraph 7 is not so restricted. Paragraph 7(1)(b) refers to ‘anything’ revealed by the investigation which gives rise to concern that ‘circumstances creating a risk of other deaths will occur …’ It does not use any phrase such as ‘in similar circumstances’. 18. The original rule 43 used the phrase ‘to prevent the recurrence of fatalities similar to that in respect of which the inquest is being held’, but the word ‘similar’ was deleted from the later version. When the change to rule 43 was made in 2008 the Ministry of Justice’s Guidance for coroners on changes to Rule 43 referred to the change allowing coroners to report issues that may be peripheral to a particular case but nevertheless will prevent deaths in the future. The word ‘similar’ remains absent from the 2009 Act. The report does not, therefore, have to relate to a death in similar circumstances. 19. By way of illustration, in a suicide case involving hanging at home, firearms are found at the house. The deceased has a history of serious violence and questions are raised during the course of the investigation about the police checks made for the purposes of firearms certificates. These questions raise sufficient concern with the coroner that action should be taken to prevent future deaths, not deaths in circumstances similar to the deceased’s death, but relating to other possible deaths where police checks about firearms are shown to be inadequate. 20. Each report should be a carefully considered, professional document bearing in mind that it may in due course be published. 21. Do not include a confidentiality clause. In most cases it will not be necessary to send extraneous documents such as the Record of the inquest or a recording. The coroner’s concerns (Box 5 of the template) 22. The report, having set out the details of the investigation (and inquest) and the circumstances of the death, must then list the coroner’s concerns (in Box 5 of the template, Annex A). These are the concerns which the investigation has revealed, either at the inquest or earlier during the investigation.

624 Appendices

23. This part is the essence of a report to prevent future deaths. The coroner should express clearly, simply and ‘in neutral and non-contentious terms’ the factual basis for each concern (R v Shrewsbury Coroner’s Court, ex parte British Parachute Association (1988) 152 JP 123). See Box 5 of the template forms at Annex A. 24. In some cases the action to be taken following the coroner’s concern will be obvious. But it is not for the coroner to express precisely what action should be taken. A PFD report is a recommendation that action should be taken, but not what that action should be. The latter is a matter for the person or organisation to whom the PFD report is directed. Hallett LJ expressed it in this way: ‘However, it is neither necessary, nor appropriate, for a coroner making a report under rule 43 to identify the necessary remedial action. As is apparent from the final words of rule 43(1), the coroner’s function is to identify points of concern, not to prescribe solutions.’ (7/7 Bombings Inquests, ibid. p15.)

25. Coroners should be careful, particularly when reporting about something specific, to base their report on clear evidence at the inquest or on clear information during the investigation, to express clearly and simply what that information or evidence is, and to ensure that a bereaved family’s expectations are not raised unrealistically. 26. Reports should not apportion blame, be defamatory, prejudice law enforcement action or the administration of justice, affect national security, put anyone’s safety at risk, or breach data protection for example by naming children or breaching medical confidentiality. 27. Coroners should not make any other observations of any kind, however well intentioned, outside the scope of the report. Such observations are an expression of opinion wider than is permissible (under section 5(3) of the 2009 Act—the old rule 36) and are therefore unlawful and to no effect: see R (Mowlem plc) v Avon Assistant Deputy Coroner [2005] EWHC 1359 (Admin). 28. In the past some coroners have from time to time expressed themselves in public with forceful language. Phrases such as ‘I am appalled’ or ‘I am disgusted’ or ‘shame on you’ have been used. They should not be used. Coroners should at all times use moderate, neutral, well-tempered language, befitting the holder of a judicial office. This applies to public hearings as well as correspondence and reports. Action (Box 6 of the template) 29. Next, the report must state that ‘in the coroner’s opinion action should be taken’ and that the coroner believes the person/organisation has ‘power to take such action’ (paragraph 7(1)). See Box 6 of the template forms at Annex A. The coroner should not recommend what that action should be (see paragraph 24 above), but the coroner can highlight the area of concern and draw attention to it (see Box 5 above). 30. Under this heading the report should usually do no more than state in these terms: ‘In my opinion action should be taken to prevent future deaths and I believe you have the power to take such action.’ See template and specimen attached. 31. It is not for a coroner to make recommendations as to what specific action should be taken. The wording of the 2009 Act does not go as far as, for example, the New Zealand law which permits coroners to make recommendations (section 22A, Coroners Act 1980). The coroner in England and Wales may draw attention to an area of concern

Appendices 625

for the person/organisation to consider, such as: ‘You should consider a review of your procedures on safety and the use of ladders’. But that is not a specific remedial recommendation. 32. In Re Clegg (deceased) (1996) 161 JP 521 (DC) Phillips LJ used the word ‘recommendations’ in a general sense only: ‘Again my conclusion is that in a situation such as this a coroner cannot be expected to do more than to make general recommendations and that it must, at the end of the day, be for the National Health Service to give detailed consideration to how their recommendations should be implemented’. In other words the coroner should identify the specific area of concern, raise it, but then allow the person/organisation to provide the remedy. 33. A number of cases are consistent with that approach. In Re Kelly (deceased) (1996) 161 JP 417 Pill LJ endorsed the coroner’s recommendation under Rule 43 for a review of methods of communication during live military firing exercises. In R v Shrewsbury Coroner’s Court, ex parte British Parachute Association, above, the rule 43 ‘recommendation’ was expressed by Lloyd LJ to be confined to the coroner announcing, ‘presumably in neutral and non-contentious terms’, that he was going to report the matter to the relevant authority. 34. And in the 7/7/ Bombings Inquests Hallett LJ set out in her Rule 43 letter of 6 May 2011 her nine ‘recommendations’ and the reasons for them at some length and listed them in a Summary of Recommendations. But her recommendations involved no more than proposing reviews of specific aspects of procedures, protocols or training, for example: ‘I recommend that the London Resilience Team reviews the provision of inter-agency major incident training for frontline staff, particularly with reference to the London Underground system.’ She did not purport to suggest what the outcomes of those reviews should be. Sending the report 35. The coroner must send the report to ‘a person who the coroner believes may have power to take such action’: paragraph 7(1). ‘Person’ includes organisation. Where a report is sent to an organisation the coroner should seek to identify a relevant person in the organisation who is sufficiently senior to have the ‘power’ to take action. 36. The report should be sent out (a) within 10 working days of the end of the inquest, or (b) within 10 working days of the time, earlier, before inquest, when the matter of concern is revealed and considered during the course of the investigation (see paragraph 13 above). Letter instead of report 37. Where the duty to make a report does not arise, but the coroner wishes exceptionally to draw attention to a matter of concern which has arisen during the investigation (including the inquest), the coroner may choose to write a letter expressing that concern to the relevant person or organisation. For example, the matter in question may not relate to a risk of future deaths. Such a matter could be discussed with interested persons at the inquest and the correspondence could be copied to them. 38. An example of this arose in the inquest into the death of Ian Tomlinson who died during protests at the G20 summit in London in April 2009. There was evidence, which in the end was excluded from the inquest hearing, about police service vetting

626 Appendices

a rrangements. This evidence did not relate to the death or to future deaths but it caused concern to the coroner who discussed it with counsel, corresponded with the Home Secretary about it, and disclosed the correspondence (with the Home Secretary’s c onsent) to all interested persons. The role of the jury 39. A jury is not permitted to make riders or recommendations: see R v West London Coroner, ex parte Gray [1988] 1 QB 467; R v Shrewsbury Coroner’s Court, ex parte British Parachute Association, above; R v HM Coroner for West Somerset ex parte Middleton [2004] 2 AC 182, [38]. 40. Coroners should not invite juries to make any kind of observation. Indeed, quite the contrary; juries should be directed not to express an opinion on any matter other than the section 5 matters to be ascertained (who, how, when and where). In the right case, however, the coroner has a discretion (not a duty) to leave to the jury, in addition to the direct or indirect causes or contributions to the death, facts which are relevant to the coroner’s reporting power under paragraph 7 of schedule 5, particularly where those facts are disputed or uncertain: see Middleton and Lewis, above. Article 2 cases 41. The coroner’s procedural obligation under Article 2 is ‘most effectively discharged’ if the coroner announces publicly not only his/her intention to make a PFD report, if that is the intention, but also in broad terms the substance of the report which he/she intends to make: Middleton, [38]. Requirements relating to reports: responses, copies and publication Responses 42. A person or organisation must respond within 56 days or longer if the coroner grants an extension (regulation 29(4) and (5)). 43. A response must detail the action taken or to be taken, whether in response to the report or otherwise, and the timetable for it, or it must explain why no action is proposed (regulation 29(3)). Copies 44. The coroner must send a copy of the report to the Chief Coroner and all interested persons who in the coroner’s opinion should receive it (Reg 28(4)). Where the deceased is believed to be under 18, a copy must also be sent to the Local Safeguarding Children Board. 45. The coroner must send a copy of any response to the Chief Coroner and all interested persons who in the coroner’s opinion should receive it (Reg 29(6)). 46. All copies should be sent to the Chief Coroner’s office electronically. This is important, since there are likely to be something in the region of 600 reports a year. Electronic submission will aid filing, processing and reviewing. There is no need to send a hard copy. Copies will be retained in the first instance for a period of five years. 47. The coroner may also send a copy of the report and/or the response to ‘any other person [other than interested persons] who the coroner believes may find it useful or

Appendices 627

of interest’ (Reg 28(4)(c) and Reg 29(6)(c)). The coroner should consider requests for copies from other persons on a case by case basis. A blanket policy of only providing reports or responses to interested persons would be unlawful. Coroners should err on the side of openness unless there is a very good reason for restricting access to these documents. Reports about deaths in custody 48. All reports and responses about deaths in prisons and other detention centres should as a matter of good practice be sent to HM Inspectorate of Prisons in all cases. The present Inspector has indicated that he would welcome this practice. They should also be sent to the National Offender Management Service and the Independent Advisory Panel on Deaths in Custody. Other reports 49. Coroners should routinely send relevant reports to other organisations, such as the Department of Health, the Care Quality Commission, or the Department of Transport, so that wider lessons can be learnt. Publication 50. The Chief Coroner may publish a report or a response, or part of one or in a redacted or summarised form (Reg 28(5)(a) and Reg 29(7)(a)). 51. A person or organisation giving a response to a report may make representations to the coroner about the release or publication of their response (Reg 29(8)). Representations must be passed by the coroner to the Chief Coroner (Reg 29(10)). 52. The Chief Coroner may also send a copy of a report or a response to any person the Chief Coroner believes may find it useful or of interest (Reg 28(5)(b) and Reg 29(7)(b). Making use of reports 53. The Chief Coroner intends to publicise on the coroner section of the public judiciary website as many reports as possible. As a matter of policy there will be, subject to representations and exceptions (see paragraph 26 above), a presumption of publication. 54. It is implicit in the statutory framework that the Chief Coroner should have a role in taking some reports (and responses) further. The Chief Coroner will therefore make an assessment of areas of concern, whether from single or multiple reports, and advise action where appropriate. He will consult on areas of concern and where feasible recommend action, whether by way of advice to government or an organisation or individual or where necessary by recommending a change in the law. These recommendations may also be published. HH JUDGE PETER THORNTON QC CHIEF CORONER 4 September 2013

Chief Coroner’s Guidance No. 16 Deprivation of Liberty Safeguards (DoLs) Introduction 1.

2.

3.

4.

5.

6.

7.

This guidance concerns persons who die at a time when they are deprived of their liberty under the Mental Capacity Act 2005 (MCA 2005). Under the MCA 2005 a person who lacks capacity and is in a hospital or care home for the purpose of being given care or treatment may be detained in circumstances which amount to deprivation of liberty. No detention amounting to deprivation of liberty may be permitted without authorisation under the statutory scheme. It would amount otherwise to false imprisonment. The scheme, set out in Schedule A1 to the MCA 2005, provides safeguards known as Deprivation of Liberty Safeguards (DoLS). The questions which are raised for coroners and must be answered are: —— Are these persons in state detention for the purposes of the Coroners and Justice Act 2009 (the 2009 Act)? —— Should an inquest be held into their death? —— If so, must there be an inquest in all cases, even when they die of natural causes? —— Should there be a jury inquest? —— Will it be an Article 2 inquest? These questions arise urgently since the use of DoLS in hospitals and care homes is now widespread and increasing. The Department of Health (DH) and Care Quality Commission (CQC) expect applications for DoLS to rise from 13,000 a year to over 100,000. Most cases concern vulnerable people with dementia. Others may have a severe learning disability or acquired brain injury. For the future the Law Commission has commenced a fundamental review of DoLS provisions in the MCA 2005. It will report in 2017 with recommendations for reform and a draft Bill. But for now the purpose of this guidance is to give coroners a steer on the application of DoLS in the context of coroner work. It will of course be a matter for coroners in the exercise of their independent judgment, and subject to any subsequent ruling of the High Court, to decide each case for themselves. For the purpose of simplicity, the statutory authorisation for deprivation of liberty of a person in a hospital or care home will be referred to in this guidance as a DoL.

Appendices 629

What are DoLS? How is deprivation of liberty authorised? 8. Following the decision in R v Bournewood Community and Mental Health NHS Trust, ex p L [1999] 1 AC 458 and its reconsideration at Strasbourg in HL v UK (2004) 40 EHRR 761, it became necessary for the UK to introduce machinery for the protection of the thousands of mentally incapacitated people who were regularly deprived of their liberty in hospitals and care homes (and elsewhere). 9. Accordingly the MCA 2005 was amended by the Mental Health Act 2007 so as to provide a new statutory scheme for persons in hospitals or care homes who were proved on a balance of probabilities to lack capacity. Lack of capacity 10. Under the MCA 2005 lack of capacity is expressed in this way. A person lacks capacity in relation to a matter if he or she is unable to make a decision for himself or herself in relation to the matter because of an impairment (permanent or temporary) of, or a disturbance in the functioning of, the mind or brain: sections 1 and 2, MCA 2005. 11. Persons who lack capacity may be subject to deprivation of liberty, but only by authorisation under Schedule A1 of the MCA 2005 or by order of the Court of Protection (section 4A). Meaning of ‘deprivation of liberty’ 12. Section 64(5) of the MCA 2005, the interpretation section, provides that references in the Act to deprivation of a person’s liberty have the same meaning as in Article 5(1) of the European Convention on Human Rights. Article 5(1) of the Convention provides: ‘Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:….e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts, or vagrants.’

13. In P v Cheshire West and Cheshire Council; P and Q v Surrey County Council [2014] UKSC 19 (a DoLS case but not a coroner case) the Supreme Court stated that the purpose of Article 5 was to ensure that people were not deprived of their liberty without proper safeguards. 14. The Supreme Court decided (by a majority), citing HL v UK (above), that deprivation of liberty arose when the person concerned ‘was under continuous supervision control and was not free to leave’ [49], [63] and [87]. This should be determined ‘primarily on an objective basis’ [76]–[87]. 3 15. It did not matter that the patient in hospital or the resident of a care home was content or compliant or voiced no objection. As Lady Hale said at [46], ‘A gilded cage is still a cage.’ 16. Accordingly, once there is, or is likely to be, deprivation of liberty, the detention must be authorised under the DoLS scheme in the MCA 2005.

630 Appendices

Authorisation 17. An authorisation which deprives a person of his or her liberty is obtained in the following way. The ‘managing authority’ of the hospital or care home (public or private) may request authorisation from the ‘supervisory body’. There must be a request and an authorisation before a person is lawfully deprived of his or her liberty. The managing authority 18. The managing authority of an NHS hospital is the health trust, board or special health authority. For independent (private) hospitals the managing authority is the person registered or required to be registered by statute. For care homes the managing authority is the person registered or required to be registered by statute. See paragraphs 175–178, Schedule A1. The supervisory body 19. Since 2009 the supervisory body for all hospitals and care homes, both public and private, is the local authority. Standard and urgent authorisations 20. There are two types of authorisation: standard authorisations and urgent authorisations. 21. The DH has issued forms and guidance: see https://www.gov.uk/government/collections/dh-mental-capacity-act-2005-deprivation-of-liberty-safeguards. Form No.1 is for urgent authorisations, Form No.12 for standard authorisations. 22. The DoLS Code of Practice issued by the DH can be found at http://webarchive. nationalarchives.gov.uk/20130107105354/http://www.dh.gov.uk/prod_consum_dh/ groups/dh_digitalassets/@dh/@en/documents/digitalasset/dh_ 087309.pdf 23. Standard authorisations are made by the local authority. They must state in writing (amongst other things) the name of the person to be detained, the hospital or care home at which deprivation of liberty is authorised, the duration of the authorisation, the purpose for which it was given, the reason why each qualifying requirement (see below) was met, and ‘any conditions’ subject to which the authorisation is given. It may be renewed. See paragraphs 21–73, Schedule A1. 24. There is a statutory duty upon the managing authority of a hospital or care home to apply for authorisation where the qualifying requirements are likely to be met within the following 28 days. See paragraphs 24–26, Schedule A1. 25. Urgent authorisations are made by the managing authority of the hospital or care home in urgent cases only, for a period of seven days, pending a request for a standard authorisation. They do not involve recourse to the supervisory body. See paragraphs 74–90, Schedule A1. 26. Once the authorisation is given (standard or urgent), the hospital or care home may deprive the person of their liberty by detaining the person for the purpose of their being given care or treatment. See paragraph 1(2), Schedule A1.

Appendices 631

Safeguards 27. Safeguards (as in the phrase Deprivation of Liberty Safeguards) are provided by Schedule A1 of the MCA 2005. They involve a rigorous procedure of assessment and authorisation, independent of the hospital or home. 28. Safeguards are provided by the precondition of six qualifying requirements having to be met. These are the age, mental health, mental capacity, best interests, eligibility and no refusals requirements. See paragraph 12, Schedule A1. 29. Following a request the supervisory body must carry out assessments of all qualifying requirements before granting an authorisation: paragraph 33, Schedule A1. The six assessments must be completed by a minimum of two assessors, usually including a social worker or care worker, sometimes a psychiatrist or other medical person (see DoLS Code of Practice 4.13–4.57). If all assessments are in writing and ‘positive’, ie all qualifying requirements are met, the supervisory body must give a standard authorisation: paragraph 50, Schedule A1. This authorisation may be ‘reviewed’ by the supervisory body later. 30. As one would expect, where the liberty of the subject is at stake, the provisions are detailed and extensive. There are 188 paragraphs in Schedule A1. It is not the purpose of this guidance to detail all the requirements and conditions. Court of Protection 31. The Court of Protection may make a similar order authorising deprivation of liberty in a domestic setting (outside hospitals and care homes) in relation to personal welfare: see sections 4A and 16 of the MCA 2005. This will include a placement in a supported living arrangement. 32. The authorisation of any DoL may be challenged in the Court of Protection: section 21A, MCA 2005. See, for example, RB (by his Litigation Friend, the Official Solicitor) v Brighton and Hove City Council [2014] EWCA Civ 561 (unsuccessful application to terminate a standard authorisation). No challenge to validity of DoLS before coroner 33. Where an authorisation to deprive a person of liberty has been given, its validity cannot be challenged by or before a coroner. The Coroners and Justice Act 2009: ‘in state detention’ 34. In order to decide whether a coroner must investigate the death of a person who was subject to a DoL, it is necessary to consider the relevant provisions of the 2009 Act. Has a person who was subject to a DoL died in state detention for the purposes of the 2009 Act? 35. A coroner must commence an investigation into a person’s death under the relevant wording of section 1 of the 2009 Act where the coroner has reason to suspect that ‘the deceased died while in custody or otherwise in state detention’: section 1(2)(c). The Explanatory Notes to section 1 suggest that state detention includes persons ‘held under mental health legislation’: paragraph 61. 36. ‘State detention’ is defined in section 48(2). ‘A person is in state detention if he or she is compulsorily detained by a public authority within the meaning of section 6 of the Human Rights Act 1998.’ Section 6 is headed ‘Acts of public authorities’.

632 Appendices

37. If a duty to investigate arises under section 1, the investigation may not be discontinued if the coroner has reason to suspect that the deceased ‘died while in custody or otherwise in state detention’: section 4(2)(b). In those circumstances the coroner must therefore hold an inquest: section 6. Two opposing views 38. Two alternative views have been expressed about DoLS and whether they are included within the phrase ‘in state detention’. 39. The first view is that the deprivation of liberty of DoLS extends more widely than cases of ordinary physical detention, for example to cases of persons living in relative normality, not seeking to leave or complaining about being restrained, but would be restrained if they sought to leave. See Jervis on Coroners 13th Edn. (2014) at paragraph 5-85. 40. In addition Jervis suggests that the restraint, such as it is, is outside the scope of the definition of state detention in section 48(2) (above) when it is not by a ‘public authority’ for the purposes of the Human Rights Act 1998, as for example in the case of a private care home. 41. On this view the death of a person in hospital or a care home who was subject to a DoL would not automatically require a coroner’s investigation. Indeed in most cases there would be no need for an investigation, although the coroner would have to decide on a case by case basis whether one was necessary. 42. The second and opposing view is that a person subject to a DoL falls squarely within the 2009 Act’s definition of ‘in state detention’. However quiet and comfortable the person may be in, say, a care home, the reality of their position is that they have been deprived of their liberty by the authority of the state and are being held in detention under that authority—as in ‘the gilded cage’ referred to by Lady Hale. 43. On this view, whether intended by Parliament or not, all persons who die subject to a DoL must be the subject of a coroner investigation, whether the death was 6 from natural causes or not. For the purposes of the 2009 Act they were ‘in state detention’, therefore section 1 is triggered. 44. These two competing views are not easily reconciled. They may ultimately be a matter for decision of the High Court. The former view, for example, may require coroners to consider every DoLS death on a case by case basis to see if an investigation is required. Some coroners say that the burden of doing so would be immense. The latter view, for example, may cause local authorities great concern over additional and unexpected expenditure by the coroner service as a result of many extra inquests. The Chief Coroner’s view 45. The Chief Coroner favours the second view. It is his opinion that, on the law as it now stands, the death of a person subject to a DoL should be the subject of a coroner investigation because that person was in state detention within the meaning of the Coroners and Justice Act 2009. 46. The Chief Coroner, who sits in the High Court on coroner cases, is not providing a judgment or ruling. This guidance is no more than the expression of an opinion, subject to the ruling of the High Court. Coroners, who are of course entitled to make their own independent judicial decisions, will do as they see fit in any particular case. But they are invited to take this guidance into account.

Appendices 633

47. The Chief Coroner’s view is the view which was expressed in the Chief Coroners Guide to the Coroners and Justice Act 2009 Act at paragraph 54: ‘This [the definition of ‘state detention’ in section 48(2)], in effect, extends the definition of state detention to institutions such as immigration detention and secure mental health hospitals. It would also appear to extend to deprivation of liberty orders (Schedule A1, Mental Capacity Act 2005).’

48. The Ministry of Justice collaborated with the Chief Coroner on the Guide and approved this wording. 49. The Department of Health also shares this view. 50. It was also the view of the Government in 2009 as expressed during the passage of the Coroners and Justice Bill. In response to questions from the Joint Parliamentary Committee on Human Rights, the then Government acknowledged that ‘in state detention’ would include the following circumstances: (a) detention by a constable or other public authority pursuant to statutory or common law powers; (b) detention or deprivation of liberty pursuant to the requirements of mental health legislation, including the Mental Health Act 1983 and the Mental Capacity Act 2005, as amended by the Mental Health Act 2007; (c) the placement of a child in secure accommodation; (d) detention pursuant to immigration and asylum legislation; and (e) the detention of any person in custody or otherwise detained while he or she is being transported from one place to another.”. 51. In accepting that the examples in the above list would come under the definition of state detention, the then Government considered that listing them in the Bill 7 was unnecessary. On this basis it could be said that the wording of the 2009 Act, which makes no reference to DoLS, was clearly intended by the drafters of the 2009 Act to include DoLS in the meaning of ‘in state detention’. 52. This view appears to accord with the Explanatory Notes to section 1 of the 2009 Act (see paragraph 35 above). 53. It should of course be noted that the High Court may be less willing to resort to some of these extra-statutory materials in interpreting relevant provisions of the 2009 Act. 54. This view may be further supported by the language used in Schedule A1 of the MCA 2005 which refers to a person ‘detained in a hospital or care home’ and ‘place of detention’. In short once the relevant conditions are satisfied, the person is detained by operation of law. This appears to be consistent with ‘compulsorily detained’ in section 48(2) of the 2009 Act. 55. This view suggests that those subject to DoLS are subject in plain language to the restrictions of state detention. They are detained compulsorily under the statutory framework of the state. There should therefore be a coroner’s investigation (including inquest: section 6) in all cases. Public authority 56. On the ‘public authority’ point, it is certainly arguable that all hospitals and care homes are public authorities for the purposes of the Human Rights Act (see section 48(2) above). Those in public ownership clearly are. Those in private

634 Appendices

ownership will be if they are carrying out ‘functions of a public nature’, so as to fall within the meaning of ‘public authority’ in section 6(3)(b) of the Human Rights Act 1998. 57. On this point see, for example, R (A) v Partnerships in Care Ltd [2002] 1 WLR 2610, in which a private provider of mental health care was held to be a functional public authority, performing public functions within the meaning of section 6(3)(b) of the Act. By contrast the decision in YL v Birmingham City Council [2008] 1 AC 95 decided on its particular facts that the private care home was not a public body, but was providing a service for which it charged the local authority a fee for some of its residents but not all. However, the decision in YL has been reversed since by statute. Section 145 of the Health and Social Care Act 2008 states that where accommodation, together with nursing or personal care, is provided by a private care home and the local authority are paying for it, the care home is deemed to be a ‘public authority’ for the purposes of section 6(3)(b) of the Human Rights Act. 58. There is also an argument that the local authority, which as the supervisory body authorises a person to be deprived of their liberty by a DoL, is the relevant public authority. On the other hand section 64(6) of the MCA 2005 provides that for the purposes of references to deprivation of a person’s liberty ‘it does not matter whether a person is deprived of his liberty by a public authority or not’. That suggests that the detention is the act of the managing authority, not the supervisory body. 59. The ultimate question might therefore be: Is the detention by the managing authority in the case of a private care home a public function? The answer to that question may well be Yes. The detention is a public function because of the detailed statutory scheme which permits it. The exercise of powers of compulsory detention could therefore be considered a public function for the purposes of section 6 of the Human Rights Act. Inquest with jury? 60. In many cases there will be no need for a jury inquest. The mandatory requirement for an inquest to be held with a jury where ‘the deceased died in custody or otherwise in state detention’ does not apply to deaths from natural causes. It only applies where the death is a violent or unnatural one or the cause of death is unknown: section 7(2)(a) of the 2009 Act. Article 2 61. The mere fact that the inquest will be concerned with a death ‘in state detention’ does not mean that it will necessarily be an Article 2 inquest. In some cases it may be. But in many cases, particularly those where the death is from natural causes, there will be no arguable breach of the state’s general duty to protect life. Nor will there be any arguable breach of the Osman test that the state knew or ought to have known of a real or immediate risk to the life of the deceased and failed to take measures within the scope of their powers: Osman v UK [1998] 29 EHRR 245. 62. Accordingly, in most cases the procedural duty to hold a Middleton inquest and ascertain under section 5(2) of the 2009 Act ‘in what circumstances’ the deceased came by his or her death will not apply.

Appendices 635

63. The Article 2 procedural duty may, however, arguably arise where the death is not from natural causes and/or the fact of detention under DoLS may be a relevant factor in the cause of death. Conclusions 64. The Chief Coroner’s present view, subject to a decision of the High Court, is that any person subject to a DoL is ‘in state detention’ for the purposes of the 2009 Act. 65. When that person dies the death should therefore be reported to the coroner and the coroner should commence an investigation under section 1. 66. The person is not ‘in state detention’ for these purposes until the DoL is authorised. 67. Where the authorisation relates to a care home and the person is removed to a hospital and dies there (or in transit), coroners should err on the side of caution in deciding that the DoL may extend from the care home to the hospital in cases of medical necessity and therefore an investigation must be commenced. Even if the DoL is strictly place-specific (see paragraphs 25–26, Schedule A1), the law of necessity may allow the hospital to ‘detain’ the person, therefore an inquest would be necessary. 68. The investigation cannot be discontinued: section 4(2)(b). There must be an inquest. 69. There is no requirement for a jury where the death was from natural causes: section 7(2)(a). 70. In many cases the inquest will not be an Article 2 inquest. 71. In many cases of this kind which are uncontroversial the inquest may be a ‘paper’ inquest, decided in open court but on the papers without witnesses having to attend. Intelligent analysis of relevant information (without the need for a postmortem examination) may be the best approach. Bereaved families should have all of this explained to them in advance. 72. Nevertheless, there will always be a public interest in the careful scrutiny of any death in state detention. As in all cases there must be sufficiency of coroner inquiry. 73. Senior coroners should maintain close liaison with the DoLS lead in their local authority, working together to deal with this extra activity. HH JUDGE PETER THORNTON QC CHIEF CORONER 5 December 2014

Chief Coroner’s Guidance No.17 Conclusions: Short-Form and Narrative CONTENTS INTRODUCTION The statutory framework The Record of Inquest (Form 2) Historical perspective THE THREE STAGES CONCLUSIONS: The alternatives (1) SHORT-FORM CONCLUSIONS (2) NARRATIVE CONCLUSIONS ARTICLE 2 INQUESTS MISCELLANEOUS Standards of proof Particular short-form conclusions Lawful/unlawful killing Suicide Service deaths Accident Misadventure Open conclusion Neglect All inquests

Appendices 637

INTRODUCTION 1. The purpose of this guidance is to assist coroners in the use of short-form and narrative conclusions and with a view to achieving greater consistency across England and Wales.1 2. This guidance is not intended to cover all possible aspects of conclusions. It provides a suggested approach, consistent with case law, to making public findings and conclusions clear, accessible and complete. This will benefit all who attend inquests, in particular families, as well as the media. It will also assist the important process of recording for statistical purposes. 3. In considering conclusions it must always be borne in mind that in essence an inquest is a fact-finding inquiry. ‘It is clear first that the coroner’s over-riding duty is to inquire ‘how’ the deceased came by his death …’: Homberg.2 The statutory framework 4. The Coroners and Justice Act 2009 (the 2009 Act) and the 2013 Rules and Regulations no longer use the word ‘verdict’. Verdicts have become conclusions. 5. The outcome of an inquest is now recorded in the Record of Inquest (Form 2). This document replaces the Inquisition document (formerly Form 22, Coroners Rules 1984). The format in Form 2 is not dissimilar to an Inquisition. A copy of the Form 2 Record of Inquest is attached at Annex A. 6. As section 10 of the 2009 Act requires, the coroner (or the jury if there is one) must make a ‘determination’ of the matters to be ascertained by the investigation and make ‘findings’ for registration purposes. The matters to be ascertained by the investigation into a person’s death are: who the deceased was; how, when and where the deceased came by his or her death (section 5). The findings for registration purposes are the particulars required by the Births and Deaths Registration Act 1953 (see Form 2 at Annex A). The requirement for both is emphasised by Rule 34. The statutory findings are not to be confused with findings of fact (see below). The Record of Inquest (Form 2) 7. The section 10 ‘determination’ and ‘findings’ must, therefore, be recorded in the Record of Inquest (Form 2, see Annex A). 8. The Record of Inquest will also show the medical cause of death and the conclusion, short-form or narrative. 9. The Record will show who the deceased was in Box 1, the medical cause of death in Box 2, the how, when and where the deceased came by his or her death in Box 3, the conclusion in Box 4, and the particulars required for death registration in Box 5. 10. This guidance focuses primarily on the matters to be included in Boxes 3 and 4 and their inter-relationship.

1 As always I am very grateful for the input of many coroners into this Guidance, in particular Christopher Dorries, Coroner for South Yorkshire West. I am also indebted to Kate Brunner, barrister of Albion Chambers, Bristol, for her research. 2 R v HM Coroner for Western District of East Sussex, ex parte Homberg (1994) 158 JP 453.

638 Appendices

11. The Record will be signed by the coroner and by the jury if there is one (by those jurors who agree with it). 12. The Record should normally be treated as a public document. Most if not all of the details on it will have been read out in open court and as with documents ‘in the possession of a coroner in connection with an investigation’ it may be provided to any person’ unless they are not ‘in the opinion of the coroner … a proper person to have possession of it’ (which should be rare): see Regulation 27(2). The Record should therefore normally be made available for inspection by the public (including the media) at a coroner’s office on request. In the publicly available copy the signatures of jurors should be redacted. Similarly, other details, such as the address of the deceased, may be redacted where there is good reason for doing so. Details should not be redacted unless it is in the public interest to do so. Historical perspective 13. The precedents in the Appendix to the first edition of Jervis in 1829 show that inquisitions at that time were in narrative form, explaining for example how the deceased ‘in manner and by means aforesaid, accidentally, casually, and by misfortune, came to his death’ (pp368–369), by reference to the facts as found. 14. The origins of some short-form verdicts (conclusions) are relatively recent: see for example unlawful killing explained in Wilkinson3 and lawful killing in Duggan.4 Section 4 of the Coroners Act 1843 had referred to ‘a Verdict of Accidental Death’, but a list of short-form verdicts, recognisable to modern day coroners, did not appear until the Coroners Rules 1953.5 15. However, a clear distinction had been made between ‘circumstances of the death’ and ‘the conclusion of the jury as to the death’ as long ago as the Coroners Act 1887, the cornerstone of modern coroner law. The precedent for the Form of Inquisition described ‘circumstances of the death’ as including facts over and above the medical cause of death. One example given was ‘That the said CD did on the … day of … fall into a pond of water situate at … by means whereof he died’. The precedent suggests in that scenario alternative verdicts of ‘CD, not being of sound mind, killed himself ’ or ‘CD by misadventure fell into the said pond and was killed’. 16. That distinction remains although there have been changes in the wording of matters which must be recorded. Form 22 of the Coroners Rules 1984 required certain matters to be found. In Box 2, those matters were ‘Injury or disease causing death.’ In Box 3 they were: ‘Time, place and circumstances at or in which injury was sustained’. Form 2 in the Schedule to the 2013 Rules uses different wording. In Box 2 it is the ‘Medical cause of death’ and in Box 3 it is ‘How, when and where and, for investigations where section 5(2) of the Coroners and Justice Act 2009 applies [Article 2 inquests], in what circumstances the deceased came by his or her death’.

3

R (Wilkinson) v HM Coroner for the Greater Manchester South District [2012] EWHC 2755. R (Duggan) v HM Assistant Deputy Coroner for the Northern District of North London [2014] EWHC 3343 (Admin). 5 5 See Notes to Form 18 (the Inquisition) in the Third Schedule (see also Rule 42). 4

Appendices 639

17. As the law has developed the position has now been reached that the coroner (or the jury if there is one) must, in addition to finding the ‘medical cause of death’ (Box 2), make two key decisions: (1) findings of fact as to ‘how’ the deceased came by his or her death (Box 3), and (2) the conclusion as to the death (Box 4). These two decisions are separate but they must be closely related (see below). THE THREE STAGES 18. The coroner (or the jury if there is one) is required, having heard the evidence, and in addition to deciding the medical cause of death (Box 2), to arrive at a conclusion by way of a three stage process. (1) To make findings of fact based upon the evidence. Where the coroner sits alone the key findings of fact should be stated orally in open court, preferably (during or) after the evidence has been summarised (but not written on the Record of Inquest). Where there is a jury they need to be directed to make findings of fact for themselves based upon the evidence they have heard. They will not normally record these findings of fact publicly except insofar as they form part of the answer to ‘how’ or part of a narrative conclusion. (2) To distil from the findings of fact ‘how’ the deceased came by his or her death and to record that briefly in Box 3. Normally, the answer to ‘how’ will be a brief one sentence summary taken from the findings of fact in (1) above. ‘How’ means ‘by what means’ (and not ‘in what broad circumstances’).6 This will usually be a description of the mechanism of death. Examples of ‘how’ in Box 3 are: —— ‘by hanging from an exposed beam using a ligature made from a bedsheet’ (with the conclusion of ‘suicide’ entered in Box 4) —— ‘by drowning while swimming from his small fishing boat in the open sea’ (with the conclusion of ‘misadventure’ entered in Box 4) —— ‘from injuries caused in a motor collision while a backseat passenger in her father’s car’ (with the conclusion of ‘road traffic collision’ entered in Box 4) —— ‘from trauma consistent with an un-witnessed fall downstairs’ (with the conclusion of ‘accident’ entered in Box 4) —— ‘by exposure to asbestos fibres during the course of his occupation as a plumber’ (with the conclusion of ‘industrial disease’ entered in Box 4) To these words will be added the date and place of death where known and, where necessary, any further words which briefly explain how the deceased came by his/her death. (Box 3)

6 R v HM Coroner for North Humberside and Scunthorpe, ex parte Jamieson [1995] QB 1. In Article 2 cases it means ‘by what means and in what circumstances’ (section 5(2) of the 2009 Act; R (Middleton) v HM Coroner for West Somerset [2004] 2 AC 182).

640 Appendices

For example in a case of bad driving falling short of manslaughter:7 ‘The unknown driver left the scene without stopping. He had been travelling at high speed down an ill-lit narrow street, knocking into parked cars, before he struck and knocked down the deceased who was walking along the side of the road, causing the injuries from which he died. (Box 3) I shall therefore record the formal conclusion [under the law/as required by law] as accident OR road traffic collision.’ (Box 4). Coroners, in their judicial discretion, will use their own form of words. These should be brief, neutral and clear. As under the old law they must not include opinion other than on matters which are the subject of statutory determination (section 5(3), the 2009 Act) and they must not appear to determine any question of criminal liability on the part of a named person or civil liability (section 10 (2)). (3) To record the conclusion, which must flow from and be consistent with (1) and (2) above, in Box 4. CONCLUSIONS: The alternatives 19. There are two alternatives for conclusions which are sanctioned by the Coroners and Justice Act 2009, the Coroners (Inquests) Rules 2013 and the common law as expounded in case law: (1) a short-form conclusion and (2) a narrative conclusion. It is also permissible to combine the two types of conclusion. 20. The conclusion, short-form or narrative, must be entered in Box 4 of the Record of Inquest. 21. There must always be sufficient evidence on a Galbraith plus basis for a conclusion.8 22. It is for the coroner to decide whether a short-form or a narrative conclusion is more appropriate to the case in question. 23. In more complex cases where interested persons are represented, the coroner will invite submissions on the following: —— —— —— ——

the type of conclusion, short-form or narrative; the short-form conclusions the coroner is considering leaving to the jury; what written directions (if any) will be given to the jury; and what questions (if any) may be asked of them.

The coroner should ‘prepare a draft written statement of the matters which he/she believes the law requires in relation to the possible verdicts’.9 (Legal representatives could be invited to submit a first draft.) The coroner must give a ruling about these matters with ‘short reasons’.10 Written directions of law 24. In jury cases of any complexity, a coroner should draft written legal directions, which should be circulated to interested persons to allow any submissions to be made.11 7

See Chief Coroner’s Law Sheet No.1, Unlawful Killing, paragraph 41. See Chief Coroner’s Law Sheet No.2, Galbraith Plus. 9 R (Sreedharan) and HM Coroner for Greater Manchester [2012] EWHC 1386 at [31]. 10 Sreedharan, above, at [31]; R (Cooper) v HM Coroner for North East Kent [2014] EWHC 586 (Admin). 11 Wilkinson, note 3, at [18]; R v Inner South London Coroner, ex parte Douglas-Williams [1999] 1 All ER 344, 355. 8

Appendices 641

Those directions should include directions as to the order in which the jury should consider conclusions, and the standard(s) of proof. The jury should be directed to consider conclusions where the criminal standard applies before those where the civil standard applies.12 25. It is good practice, where time permits, for the coroner to hand to the jury the directions of law in full and then to read them out ‘for the record’.13 In this way, particularly in complex cases, the jury will be able to revisit any of the directions when they have retired without having to rely on their memory or notes. (1) SHORT-FORM CONCLUSIONS 26. Wherever possible coroners should conclude with a short-form conclusion. This has the advantage of being simple, accessible for bereaved families and public alike, and also clear for statistical purposes. 27. The short-form conclusion should be one from the list of short-form conclusions in Note (i) of Form 2 in the Schedule to the 2013 Rules (copied at Annex A). As before (old Form 22) the list is not exclusive,14 but straying from the list will usually be unwise. It should be noted that there are two new short-form conclusions in the 2013 list: ‘alcohol/drug related’ and ‘road traffic collision’. ‘Alcohol/drug related’ may be split into ‘alcohol related’ or ‘drug related’. 28. Even in a complex case a short-form conclusion in Box 4, in combination with the answer to ‘how’ in Box 3, will often be sufficient to ‘seek out and record as many of the facts concerning the death as the public interest requires’, per Lord Lane CJ in T hompson.15 For example, the options may be unlawful killing, lawful killing and open conclusion; or, in another case, suicide, accident or open conclusion. But as always the conclusion in Box 4 must flow from and be consistent with the findings of fact and the answer to ‘how’ in Box 3. 29. Where a short-form conclusion is left to a jury in a complex case, the coroner should normally help the jury: (i) identifying key questions of fact for them to decide, when they come to answer the ‘how’ question (Box 3); and (ii) providing written directions of law with assistance on their conclusion (Box 4). 30. The following is an example of a direction to a jury in a more complex case on ‘how’ the deceased came by his death (Box 3) as a precursor to their consideration of a short-form conclusion (Box 4): ‘Members of the jury, in dealing with the requirement in Box 3 of the Record of Inquest to decide how [the deceased] came by her death you might like to consider the following questions as part of your investigation into the death. [LIST QUESTIONS] There may be other questions which you consider important. I am not telling you what to say. What you find and how you express it is entirely a matter for you. I am merely helping you with the sort of words you might write under this heading if you so choose. 12

As recommended in R v Wolverhampton Coroner, Ex Part McCurbin [1990] 1 WLR 719 at 728C-D. ‘Obviously, it is normal and good practice for the judge to provide written directions of law and also written routes to verdict’: R v Bennett [2014] EWCA Crim 2652 at [63]. 14 See R v Inner South London Coroner, ex parte Kendall [1988] 1 WLR 1186. 15 R v South London Coroner, ex parte Thompson (1982) 126 SJ 625. 13

642 Appendices In answering the question how she came by her death you must make findings of fact. The law says that you must not make recommendations or express opinions. And your findings of fact must, of course, not only be brief, neutral and clear but they must also be based upon the evidence which you have seen and heard in court, from witnesses and in documents and from the CCTV evidence. Once you have agreed the facts, then and only then should you move on to consider your conclusion under Box 4 of the Record of Inquest. Let me now direct you about the possible conclusions. [BOX 4 DIRECTIONS]

(2) NARRATIVE CONCLUSIONS 31. As an ‘alternative’ to a short-form conclusion the coroner (or the jury if so directed by the coroner) may record a ‘brief narrative conclusion’ in Box 4: see Note (ii) to Form 2. 32. Note (ii) also states that a narrative conclusion may be used ‘in addition’ to a shortform conclusion. This means that a narrative may be used as a brief expansion of the stated short-form conclusion in Box 4,16 although in most cases this will not be necessary because of the words already used in answering ‘how’ in Box 3. 33. A narrative conclusion is a conclusion and should therefore be entered in Box 4. Where the narrative conclusion includes clearly the answers to ‘how, when and where’, Box 3 could be completed in this way: ‘See Box 4’. But the better way is to record the mechanism of death under ‘how’ in Box 3 and the wider narrative conclusion in Box 4. 34. A narrative conclusion should be a brief, neutral, factual statement; it should not express any judgment or opinion.17 The requirement of brevity has been emphasised repeatedly: see Jamieson,18 Middleton,19 Clayton20 and Scholes.21 A few sentences or one or two short paragraphs at the most will be sufficient. In Jamieson22 the Court of Appeal stated that ‘It is not the jury’s function to prepare detailed factual statements.’ 35. There has been a tendency for narrative conclusions from coroners to become lengthy and far-reaching, both as statements and in questionnaires to juries (see below). That is not what the authorities envisage. Long narratives should not be given. They achieve neither clarity nor accessibility in that form. They make it difficult to assess for statistical purposes. 36. Narrative conclusions are not to be confused with findings of fact in the three stage process. If the three stage process of (1) findings of fact, (2) the answer to ‘how’, and (3) a short-form conclusion is properly followed, there will often be no need for a narrative conclusion. In general a narrative conclusion should be used only where

16 See Ruling on Verdicts of Scott Baker LJ in The Coroner’s Inquests into the Deaths of Diana, Princess of Wales, and Mr Dodi Al Fayed at http://webarchive.nationalarchives.gov.uk/20090607230252/http://www.scott bakerinquests.gov.uk/docs/ruling_on_verdicts_270308.pdf. See also R (P) v HM Coroner for Avon [2009] EWCA Civ 1367 at [28], approving a short-form conclusion with ‘a narrative appended to it’: see paragraph 55 below. 17 Jamieson, note 6, at p24, General conclusion (6); see also R (Hurst) v London Northern District Coroner [2007] 2 AC 189. Cf Article 2 narratives at paragraph 51. A narrative conclusion should avoid being ‘bland’ or ‘anodyne’, in the sense that it adds ‘nothing of significance to anyone’s knowledge of the circumstances’ surrounding the death: R (Cash) v HM Coroner for Northamptonshire [2007] EWHC 1354 (Admin) at [49]; [2007] 4 All ER 903. 18 Jamieson, note 6. 19 Middleton, note 6. 20 R (Clayton) v South Yorkshire Coroner [2005] EWHC 1196. 21 Scholes v SSHD [2006] EWCA Civ 1343. 22 Note 6.

Appendices 643

37.

38.

39.

40.

41. 42. 43.

44.

23

the three stage process (culminating in a short-form conclusion) is insufficient to ‘seek out and record as many of the facts concerning the death as the public interest requires’: per Lord Lane CJ in Thompson.23 By way of example a short-form conclusion may be insufficient for these purposes where the jury would wish to express a conclusion in a prison death case on a major issue such as procedures leading to two persons sharing a cell together: see Middleton.24 Narrative conclusions must be directed to the issues which are ‘central’ to the cause of death, nothing more: Allen;25 or to the ‘disputed factual issues at the heart of the case’ or ‘core issues which the inquest raised’: Cash26 the important issues’: Smith.27 The coroner does not have to state a conclusion on every issue raised (only those above): Allen. Where a jury is invited to write a narrative, the coroner may elicit the conclusion by a number of different methods. Normally the coroner will identify the issues or areas of fact which the jury needs to address, guiding them with examples of possible narrative conclusions, without of course telling them what to find. As an alternative, the coroner may choose to provide the jury with written questions in the form of a questionnaire. In such cases the questions and answers will stand as the narrative conclusion. They will become part of the Record of Inquest and will be read out in public. See, for example, the five written central questions which the coroner asked of the jury in Duggan, above, as a precursor to considering alternative conclusions of unlawful killing, lawful killing and open conclusion. A questionnaire should not be lengthy: see Clayton and Scholes, above. Narrative conclusions may be used in Article 2 and non-Article 2 cases: see Longfield Care Homes.28 Narrative conclusions may be useful in non-Article 2 cases where the death arises from more than one cause (Longfield Care Homes above). But the House of Lords seems to have decided in Hurst,29 reaffirming the difference between Jamieson (non-Article 2) and Middleton (Article 2) inquests, that in nonArticle 2 inquests narrative verdicts involving systemic failings should not be wideranging, even where the state is involved (police and housing authority). Although coroners will use their own words (when sitting without a jury), in the exercise of their judicial discretion, the following is an everyday example of a narrative conclusion: ‘He/she died from a complication of necessary medical treatment OR of a necessary surgical procedure’.

Note 15. Middleton, note 6, at [31], referring to the major issue in Amin. R (Allen) v HM Coroner for Inner North London [2009] EWCA Civ 623, [33]. 26 Cash, note 17. 27 Smith v Assistant Deputy Coroner for Oxfordshire [2006] EWHC 694 (Admin). 28 R (Longfield Care Homes) v HM Coroner for Blackburn [2004] EWCH 2467 (Admin), [28]–[31]. 29 Hurst, note 17. See R (Smith) v Oxfordshire Assistant Deputy Coroner [2011] 1 AC 1. 24 25

644 Appendices

ARTICLE 2 INQUESTS 45. The conclusion in an Article 2 case may be in short-form or narrative form (or a combination of the two).30 46. In an Article 2 inquest, the coroner must record ‘in what circumstances’ the deceased came by his or her death (section 5(2), 2009 Act). The inquest must enable the coroner or the jury to express their conclusions on the central issue(s) canvassed at the inquest. 47. A short-form conclusion may be sufficient to enable the jury to express their conclusion on the central issues canvassed at inquest.31 Frequently a narrative conclusion will be required in order to satisfy the procedural requirement of Article 2, including, for example, a conclusion on the events leading up to the death or on relevant procedures connected with the death: see Middleton.32 48. As Lord Bingham stated in Middleton33 it is for the coroner, in the exercise of his discretion, to decide how best in the particular case to elicit the jury’s conclusion on the central issue(s), including disputed factual issues at the heart of the case: ‘This may be done by inviting a form of verdict expanded beyond those suggested in … the Rules. It may be done … by inviting a narrative form of verdict in which the jury’s factual conclusions are briefly summarised. It may be done by inviting the jury’s answers to factual questions put by the coroner … It would be open to parties appearing or represented at an inquest to make submissions to the coroner on the means of eliciting the jury’s factual conclusions and on any questions to be put, but the choice must be that of the coroner and his decision should not be disturbed by the courts unless strong grounds are shown.’

49. What should be included in Article 2 narrative conclusions? Narratives can include, following Middleton, ‘causes of death, defects in the system which contributed to death and any other factors relevant to the circumstances’. They must culminate in an expression of the jury’s conclusions on the ‘central issues’.34 The jury must be directed to the ‘disputed factual issues at the heart of the case’ or ‘core issues which the inquest raised’: Cash.35 50. A narrative conclusion may (but does not have to) include factual findings on matters which are possible but not probable causes of death where those findings will assist a coroner in a Report to Prevent Future Deaths: Lewis.36 Otherwise, a narrative verdict must only include matters which are ‘causative in terms of the death’ or ‘relevant in terms of causation of death’ or ‘part of the chain of causation that led to the death’.37 51. A conclusion in an Article 2 case may be a ‘judgmental conclusion of a factual nature [on the core factual issues], directly relating to the circumstances of death’, without

30 See

R (P) v HM Coroner for Avon [2009] EWCA Civ 1367, and paragraphs 19 and 32, above, and 55, below. McCann, McCann v United Kingdom (1995) 21 EHRR 97; Hurst, above, at [48]. 32 Note 6. 33 Note 6, at [20], [36] and [45]. 34 Middleton, note 6. 35 Cash, note 17. See paragraph 38. 36 R(Lewis) v HM Coroner for the Mid and North Division of Shropshire [2010] 1 WLR 1836. 37 Directions on causation at first instance approved as ‘lawful and sensible and cannot be faulted’ by the High Court in Lewis, note 36. 31

Appendices 645

52.

53.

54. 55.

infringing either section 5(3) of the 2009 Act (limiting opinion) and section 10(2) (avoiding questions of civil or criminal liability).38 Permitted judgmental words include ‘inadequate’, ‘inappropriate’, ‘insufficient’, ‘lacking’, ‘unsuitable’, ‘unsatisfactory’, and ‘failure’.39 It is unlawful to direct a jury in an Article 2 case in such a way that they were prevented from entering ‘a judgmental conclusion of a factual nature’.40 Words denoting causation such as ‘because’ and ‘contributed to’ are permissible.41 On the other hand words which suggest civil liability such as ‘negligence’, ‘breach of duty’, breach of Article 2’ and ‘careless’ are not permitted as they may breach Section 10(2), 2009 Act. In Scholes Pill LJ said that the jury’s conclusions on factual issues were helpful, but their views on policy issues less so.42 In the Avon case, the Court of Appeal concluded in a prison death case that once the jury had resolved the issue of suicide or accident they could only have addressed the issue of ‘whether the system for prevention of suicide or selfharm merited criticism’ by ‘appending a narrative’. There was ‘a public interest in their being given a clear opportunity to express their findings in narrative form’.43

MISCELLANEOUS Standards of proof 56. The standard of proof required for the short-form conclusions of ‘unlawful killing’ and ‘suicide’44 is the criminal standard of proof. For all other short-form conclusions and a narrative conclusion the standard of proof is the civil standard of proof. See Note (iii), Form 2, Schedule to the 2013 Rules. Particular short-form conclusions 57. Guidance will not be provided here on all short-form conclusions, only on some. Lawful/unlawful killing 58. For the conclusion of lawful killing see the decision of the High Court in Duggan, above.45 59. For the conclusion of unlawful killing see the decision in Wilkinson above46 and the Chief Coroner’s Law Sheet No.1.

38

Middleton, note 6, at [37]. Middleton, note 6; Lewis, note 36; Smith, note 27. 40 Cash, note 17, at [51]–[52]; Lewis, note 36. 41 Middleton, note 6; Lewis, note 36. 42 Scholes, note 21, at [69]–[70]. 43 See Avon, note 16, at [26] and [28]. 44 There is an ongoing discussion as to whether suicide should be proved to the criminal or civil standard. The Ministry of Justice are considering the alternatives. 45 Note 4. 46 Note 3. 39

646 Appendices

Suicide 60. It is not proposed in this guidance to set out the law relating to the short-form conclusion of ‘suicide’ (Form 2). But three points need to be made in the context of conclusions. 61. First, the conclusion of suicide should not be avoided by coroners simply out of sympathy for family relatives or for any other reason. Parliament has decided that suicide should remain as a short-form conclusion. The word ‘suicide’ is expressly used in the Rules: see Note (i), Form 2, Schedule, Coroners (Inquests) Rules 2013. It is therefore the coroner’s judicial duty, when suicide is proved on the evidence, to record the conclusion of suicide according to the law and the findings which justify it. It would be wrong, for example, to record an ‘open’ conclusion when the evidence is clear.47 62. Secondly, coroners should make express reference in each case of possible suicide to the two elements which need to be proved: (i) [the deceased] took his/her own life; and (ii) [the deceased] intended to do so (or, put together, ‘he/she intentionally took his/her own life’). Both elements must be proved to the criminal standard of proof.48 Suicide must never be presumed.49 Where suicide is not found the coroner should explain why, for example: ‘Looking at the two elements which must be proved to the higher standard of proof before a conclusion of suicide can be recorded, I am satisfied that [the deceased] took his own life, but I am not satisfied that he intended to do so. I cannot be sure about it. It is in my judgment more likely than not that he had that intention, but on the evidence looked at as a whole I cannot rule out that this was a terrible accident. For those reasons my conclusion is not suicide or accident but an open conclusion.’

Or as Pill LJ concluded in Hopper:50 ‘The facts and circumstances in this case did not, in my judgment, point irresistibly to the existence of a suicidal intent. The possibility that the discharge of the gun was accidental could not be excluded as a reasonable possibility.’

63. Thirdly, coroners may wish to alleviate the impact of the conclusion of suicide where proved with a form of words such as: ‘Those findings of fact lead me therefore to the following inevitable conclusion. I am satisfied to the relevant standard of proof that [the deceased] took his own life and intended to do so. For the purposes of the law I must therefore record the formal conclusion as suicide.’ There is usually no longer any need to add the words ‘whilst the balance of his mind was disturbed’.

47 ‘The job of the judges is to apply the law, not to indulge their personal preferences’: Lord Bingham in The Rule of Law (2010). 48 See R (Lagos) v HM Coroner for City of London [2013] EWHC 423 (Admin). 49 R v City of London Coroner, ex parte Barber [1975] 1 WLR 1310. 50 R v Essex Coroner ex parte Hopper ILR 23 May 1988.

Appendices 647

Service deaths 64. Similarly, in a service death inquest where the deceased was killed by insurgents and the words ‘unlawful killing’ used alone may sound inappropriate, the final words could be: ‘I shall record that [the deceased] died in the line of duty while on active service. For the purposes of the law I must record the formal conclusion as unlawful killing.’

Accident 65. Some authorities have approved additional words in accident cases such as ‘the deceased was killed when his car was run down by an express train on a level crossing’, or ‘the deceased was drowned when his sailing dinghy capsized in heavy seas’: Jamieson.51 The phrase ‘accidental death’ may also be used. 66. But these instances are not narrative conclusions within the modern post Middleton meaning of that phrase. They are akin to the 1887 Act descriptions of the circumstances of death. They may therefore be used to answer the ‘how’ in Box 3, leaving the short-form conclusion of ‘accident’ to stand alone in Box 4. Misadventure 67. Misadventure may be used as a conclusion; it remains on the list (Form 2). Misadventure may be the right conclusion when a death arises from some deliberate human act which unexpectedly and unintentionally goes wrong. Open conclusion 68. Open conclusions are to be discouraged, save where strictly necessary. An open conclusion should ‘only be used as a last resort, notably when the coroner [or the jury] is simply unable to reach any conclusion on the balance of probabilities as between two competing verdicts’: Tabarn.52 69. Put another way, an open conclusion is the only conclusion when the evidence fails to satisfy the coroner or the jury (to the appropriate standard of proof) that another short-form conclusion (or some necessary element of it) has been proved. For that reason open conclusion does not have its own standard of proof. 70. Where an open conclusion is left to a jury with one or more other short-form conclusions, the coroner should tell them (a) not to use the conclusion because they disagree amongst themselves on the other short-form conclusion(s), and (b) if they do come to an open conclusion not to consider that they will be criticised for it or that they have failed in their duty in any way. 71. Where the conclusion is an open one, Box 3 still needs to be completed, including ‘how’. 72. An open conclusion once entered and recorded may not be revisited at a later date without the intervention of the High Court. 73. In some cases a narrative conclusion will be preferable to an open conclusion. A narrative will give the coroner (or jury) the opportunity to state what findings are made 51 Jamieson, note 6. See also Kendall, note 14; HM Coroner for North London, ex parte Sutovic [2008] EWHC 1095 (Admin), [96]–[99]. 52 In Re Tabarn [1998] EWHC (Admin) 8, at [50].

648 Appendices

and what are not. Or alternatively (as in the suicide example at paragraph 62 above), the open verdict can have extra words appended by way of explanation. Neglect 74. The following does no more than outline the concept of neglect in coroner law. Neglect is not a conclusion in itself. It is best described as a finding. It must be recorded as part of the conclusion (in Box 4).53 It has a restricted meaning according to the case law. It should not be considered as a primary cause of death. 75. A finding of neglect (formerly lack of care) was specifically approved in Jamieson.54 It may form part of the conclusion in Box 4, either as words added to a short-form conclusion (see paragraph 32 above) or as part of a narrative conclusion. 76. Neglect is narrower in meaning than the duty of care in the law of negligence.55 It is not to be equated with negligence or gross negligence. It is limited in a medical context to cases where there has been a gross failure to provide basic medical attention. 77. The deceased must have been in a dependent position (because of youth, age, illness or incarceration): see next paragraph. 78. Neglect was defined in Jamieson56 (a hanging in prison) in this way: ‘(9) Neglect in this context means a gross failure to provide adequate nourishment or liquid, or provide or procure basic medical attention or shelter or warmth for someone in a dependent position (because of youth, age, illness or incarceration) who cannot provide it for himself. Failure to provide medical attention for a dependent person whose position is such as to show that he obviously needs it may amount to neglect …’

79. This definition has been expanded more by illustration than by changes in the law, testing the words ‘gross failure’ and ‘basic’ against particular facts. In broad terms there must be ‘a sufficient level of fault’ to justify a finding of neglect.57 That does not mean that, for example in a medical context, there has to have been no action at all,58 simply that the action (or lack of it) on an objective basis must be more than a failure to provide medical attention. It must be a gross failure. The difference will be highly fact-specific.59 80. In a medical context it is not the role of an inquest to criticise every twist and turn of a patient’s treatment. Neglect is not concerned with the correctness of complex and sophisticated medical procedures but rather the consequences of, for example, failing to make simple (‘basic’) checks.60 81. In prison death cases, ‘only in the most extreme circumstances (going well beyond ordinary negligence) could neglect be properly found to have contributed to that cause of death’: Middleton.61

53

R v West London Coroner, ex parte Gray [1988] QB 467. Jamieson, note 6 above, at General conclusions (8)–(10). 55 See R v HM Coroner for South Yorkshire, ex parte Stringer (1993) 17 BMLR 92; Homberg, note 2. 56 Jamieson, note 6, at page 25. 57 R (Khan) v HM Coroner for West Hertfordshire [2002] EWHC 302 (Admin) at [44]. 58 See for example R (Davies) v Birmingham Deputy Coroner [2003] EWCA Civ 1739. 59 See R (Nicholls) v HM Coroner for City of Liverpool [2001] EWHC Admin 922. 60 Nicholls, note 59. 61 Middleton, note 6, at [28], summarising Jamieson at pp25–26. 54

Appendices 649

82. There must be a clear and direct causal connection between the conduct described as neglect and the cause of death: Jamieson.62 The conduct must have caused the death in the sense that it ‘more than minimally, negligibly or trivially contributed to the death’: see Khan.63 The ‘touchstone’ is ‘the opportunity of rendering care … which would have prevented death: Staffordshire case.64 It is not enough to show that there was a missed opportunity to render care which might have made a difference; it must be shown that care should have been rendered and that it would have saved or prolonged life (not ‘hastened’ death): Khan.65 [emphasis added] 83. Neglect must be shown on a balance of probabilities. A ‘real possibility’ is not enough: Khan.66 84. The phrase ‘aggravated by neglect’ should not be used, nor should ‘lack of care’. A better phrase is that neglect (being the conduct which amounted to neglect) contributed to the cause of death. 85. In Longfield Care Homes67 the High Court stated that cases in which neglect may be found to have contributed to death by self-harm or accident would be rare and would arise only where neglect was gross and a clear or direct causal connection established. The jury’s verdict of accident aggravated by neglect was replaced by the Court with the following narrative statement: ‘Mrs Hall died of bronchopneumonia resulting from dementia. Her death was probably accelerated by a short time by the effect on her pneumonia of injuries sustained when she fell through an unattended open window, which lacked an opening restrictor, in the lounge of Longfield Residential Home on 16 April 2003.’

All inquests 86. Coroners should at all times use moderate, neutral and well-tempered language, befitting the holder of a judicial office. Coroners should not make any other observations of any kind, however well intentioned, outside the scope of a report on action to prevent future deaths under the provisions of paragraph 7 of Schedule 5 to the 2009 Act.68 Such observations are an expression of opinion wider than is permissible (under section 5(3) of the 2009 Act, the old rule 36) and are therefore unlawful and to no effect: see Mowlem69 and Farah.70 87. Juries may no longer give riders or otherwise make recommendations.71 HH JUDGE PETER THORNTON QC CHIEF CORONER 30 January 2015 62

Jamieson, note 6, at p25A, point (12). See also Khan, note 57. Khan, note 57, at [25], [43]. 64 R v HM Coroner for Coventry ex parte Chief Constable of Staffordshire (2000) 164 JP 665, 675–676. 65 Khan, note 57, at [43]. 66 Ditto. 67 See note 28. 68 See Chief Coroner’s Guidance Nos.5 and 5A. 69 R (Mowlem plc) v Avon Assistant Deputy Coroner [2005] EWHC 1359 (Admin). 70 R (Farah) v HM Coroner for Southampton and New Forest District of Hampshire [2005] EWHC 1359 (Admin). 71 See Jamieson, note 6, at p14. 63

650 Appendices

ANNEX A FORM 2: RECORD OF AN INQUEST Form 2 Record of an Inquest The following is the record of the inquest (including the statutory determination and, where required, findings)—

1. Name of the deceased (if known): 2. Medical cause of death: 3. How, when and where, and for investigations where section 5(2) of the Coroners and Justice Act 2009 applies, in what circumstances the deceased came by his or her death: (see note (ii)): 4. Conclusion of the coroner/jury as to the death: (see notes (i) and (ii): 5. Further particulars required by the Births and Deaths Registration Act 1953 to be registered concerning the death: 1.

2.

3.

Date and Name and surname Sex place of death of deceased

4. Maiden surname of woman who has married

5.

6.

Date and place of birth

Occupation and usual address

Signature of coroner (and jurors): NOTES: (i) One of the following short-form conclusions may be adopted:— I. accident or misadventure II. alcohol / drug related

III. industrial disease IV. lawful/unlawful killing V. natural causes VI. open VII. road traffic collision VIII. stillbirth IX. suicide (ii) As an alternative, or in addition to one of the short-form conclusions listed under NOTE (i), the coroner or where applicable the jury, may make a brief narrative conclusion. (iii) The standard of proof required for the short form conclusions of “unlawful killing” and “suicide” is the criminal standard of proof. For all other short-form conclusions and a narrative statement the standard of proof is the civil standard of proof.

Chief Coroner’s Guidance No.22 Pre-Inquest Review Hearings Introduction1 1. The status of the pre-inquest review hearing (PIR) is now enshrined in Rule 6 of the Coroners (Inquests) Rules 2013. It allows the coroner to hold a PIR ‘at any time during the course of an investigation and before an inquest’. 2. PIRs should be held in more complex investigations where there is a need for issues to be aired prior to the inquest and which cannot easily be dealt with by email.2 3. The purpose of a PIR is to ensure that the case is managed effectively, efficiently and openly. Before the 2013 Rules were introduced, it was intended that PIRs should provide the opportunity for the scope, issues and conduct of an inquest to be established.3 Families and other participants could raise issues, particularly contentious issues, on these and other key topics so that surprises could be avoided.4 4. Normally there should only be one PIR, although there may be more when necessary. PIRs should not, however, be used in the guise of regular ‘mention’ hearings, for which there should be no justifiable need. 5. The three essential elements of a PIR are: (1) An agenda in advance (2) The hearing (3) Rulings (with reasons) (1) The agenda 6. In advance of the PIR the coroner should send out to all (potentially) Interested Persons an agenda for the hearing. The agenda should be sent out in good time, whenever possible at least 14 days in advance. 7. The agenda, which will be tailored to the individual case, should list the issues to be raised by the coroner at the PIR. They will often include some of the following topics: —— Identity of Interested Persons —— Scope of the inquest —— Whether Article 2 engaged

1 My thanks to Nigel Meadows, Senior Coroner for Manchester City, and other coroners for their valuable input into this Guidance. 2 See generally, Brown v HM Coroner for Norfolk [2014] EWHC 187 (Admin) at [38]–[42]. 3 See R (Coker) v HM Coroner for Inner London South District [2006] EWHC 614 (Admin) and Briefing Note on Coroners’ Reform, Department for Constitutional Affairs, 2006. 4 The Fundamental Review of Death Certification and Investigation, 2003, Chapter 9, paras. 20–21.

652 Appendices

—— —— —— —— —— —— —— ——

Whether jury required Matters for further investigation Provisional list of witnesses Disclosure Jury bundle Date of next PIR hearing Date of inquest; length of inquest Venue for hearings

8. Other agenda items may include: —— Anonymity of witnesses —— Special measures for witnesses (including video links and screens) —— Public to be excluded for part of inquest (national security) —— Public interest immunity —— Apparent bias —— Need for an interpreter —— CCTV evidence —— View of the scene —— Other matters 9. In some cases it may be helpful if the coroner sets out a provisional view on one or more items on the agenda. If the coroner is able to indicate a provisional view, especially on an issue which is unlikely to be hotly contested, it should be made clear that this is an indication only and no final decision has yet been made. A provisional view gives Interested Persons the opportunity to consider the issues in advance of the hearing. In an appropriate case they should be invited to respond to the agenda in advance in writing, expressing agreement or opposition. For example, the coroner could state: My provisional view, subject to representations, is that a jury may be required. Applying the low threshold test,5 there is reason to suspect that the death resulted from an omission of a police officer: see section 7(2)(b)(i), Coroners and Justice Act 2009. Alternatively, if the threshold test is not met, I may be minded to exercise my discretion under section 7(3). The family have asked for a jury and the facts bear a resemblance to the mandatory provisions in section 7(2)(b)(i), such that I may have ‘sufficient reason’ to summon a jury.6 My provisional view, subject to representations, is that the scope of the inquest will include the following: [provide list, as appropriate]. Please give thought to this list. I attach a provisional list of witnesses, stating whether I propose to call or read them. [Note: the coroner should take the lead on the list of witnesses for the inquest.] But these are only provisional views, not final views. I would like to hear what Interested Persons have to say before I make any decisions.

5 See 6 See

R (Fullick) v HM Senior Coroner for Inner London North [2015] EWHC 3522 (Admin) at [34]–[37]. Shafi v HM Senior Coroner for East London [2015] EWHC 2106 (Admin) at [68]–[70].

Appendices 653

10. The coroner should ensure that Interested Persons, particularly those unrepresented, have sufficient disclosure of relevant statements and documents before a PIR so that they can address the agenda on an informed basis. For example, Interested Persons should not be placed in the position of having to discuss a witness list without having received any witness statements, although in some cases it may be necessary to hold an early PIR in order to manage effectively the future disclosure of materials by Interested Persons. 11. Unrepresented bereaved families may require additional help in order to understand the process of the PIR. It may be necessary, for example, to explain the difference between seeking to identify the key issues and coming to a final conclusion, the difference between a provisional view and a final view on an issue. (2) The hearing 12. As in the case of inquest hearings, details of a PIR should be published in advance on the coroner or local authority website: see Chief Coroner’s Guidance No.9 Opening Inquests, paragraphs 40–44. 13. Where possible, the press should be notified in advance of any non-factual issue likely to be of particular interest to them, such as applications for anonymity of witnesses or reporting restrictions. 14. All Interested Persons should have had the agenda and sufficient disclosure well in advance. 15. Where possible, video-conferencing (or telephone conferencing) should be made available at PIRs for those who wish to use it. 16. No evidence should be called at a PIR and no witness (including representatives from investigating agencies) should be asked or required to attend. The coroner should take care not to appear to be expressing a view about any aspect of the evidence which will be the subject of decision at the inquest. 17. The hearing should follow the agenda (subject to late amendments or additions). 18. A PIR hearing must ordinarily be held in public: Rule 11(3). The coroner may direct that the public (but not Interested Persons) be excluded from a PIR if the coroner ‘considers it would be in the interests of justice or national security to do so’: Rule 11(5). 19. The PIR must be recorded and the recording kept: Rule 26. Transcripts should not be obtained routinely. (3) Rulings 20. Where a decision is required, a clear, brief ruling should be given at the hearing. Alternatively, where the coroner needs time to consider, rulings should be provided to Interested Persons in writing within seven working days of the hearing. 21. After the hearing (or later rulings) all of the coroner’s decisions should be summarised in writing so that they can be circulated to Interested Persons. This avoids any possible misunderstandings in the future and provides the coroner’s office with a useful aide memoire. 22. A ruling on a contested issue should be accompanied by brief reasons justifying the coroner’s decision. Reasons may be unnecessary where there is agreement between Interested Persons and for most ‘housekeeping’ decisions.

654 Appendices

In practice 23. In practice the coroner should —— Decide whether one (or more) PIR hearing is required —— Draft an agenda for the hearing —— Send the agenda out to Interested Persons in good time —— Conduct the hearing in public —— Make decisions at the hearing or within seven working days thereafter —— Give reasons for decisions on contested issues —— Summarise decisions in writing and circulate to Interested Persons

HH JUDGE PETER THORNTON QC CHIEF CORONER 18 January 2016

Lord Chancellor’s Exceptional Funding Guidance (Inquests) [NB: Re-issued August 2015. https://www.gov.uk/government/uploads/system/uploads/ attachment_data/file/454835/legal-aid-chancellors-guide-exceptional-funding-inquests. pdf] 1. This guidance is issued by the Lord Chancellor to the Director of Legal Aid C asework under section 4(3) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘the Act’). The Director must have regard to this guidance in determining whether civil legal services in relation to an inquest are to be made available under section 10 of the Act. As, in practice, applications will be considered by caseworkers on the Director’s behalf, this guidance is addressed to caseworkers. 2. This guidance sets out some of the factors that caseworkers should take into account in deciding exceptional funding applications in relation to inquests. It is not intended to be an exhaustive account of those factors. In particular, it is not intended to replace the need for consideration of representations in individual cases and any applicable case law. Applications should be considered on a case by case basis. 3. The Government has retained Legal Help, the advice and assistance level of legal aid, for inquests into the death of a member of the individual’s family. Legal Help can cover all of the preparatory work associated with the inquest, which may include preparing written submissions to the coroner. Legal Help can also fund someone to attend the inquest as a ‘Mackenzie Friend’, to offer informal advice in Court, provided that the coroner gives permission. 4. Funding for representation at an inquest is not generally available because an inquest is a relatively informal inquisitorial process, rather than an adversarial one. The role of the coroner is to question witnesses and to actively elicit explanations as to how the deceased came by his death. An inquest is not a trial. There are no defendants, only interested persons, and witnesses are not expected to present legal arguments. An inquest cannot determine civil rights or obligations or criminal liability, so Article 6 ECHR is not engaged. 5. There are two grounds for granting legal aid for representation at an inquest. The first is that it is required by Article 2 ECHR. The second is where the Director makes a “wider public interest determination” in relation to the individual and the inquest. These are dealt with in turn below. Article 2 ECHR Funding Criterion 6. Pursuant to section 10(3) of the Act, Article 2 ECHR may require legal aid to be granted for representation before the Coroners’ Court. Funding will be granted where:

656 Appendices

The procedural obligation under Article 2 ECHR arises and, in the particular circumstances of the case, representation for the family of the deceased is required to discharge it. 7. In effect this is a two stage test. Caseworkers should first be satisfied that the procedural obligation under Article 2 ECHR arises. Where the caseworker is satisfied, he or she will then decide whether funded representation is required to discharge the procedural obligation. Article 2—Background and caselaw concerning inquests 8. Article 2 ECHR confers a “right to life”. It imposes on States “substantive o bligations” both not to take life without justification and to do all that could be reasonably expected to avoid a “real and immediate” risk to life where the State knows or ought to know of the risk of a breach of Article 2 (the “operational duty”), and also to establish a framework of laws, systems, precautions, and means of enforcement which will, to the greatest extent reasonably practicable, protect life (the “systemic duty”). 9. Article 2 also imposes a “procedural obligation” on the State. The “procedural” obligation arises where there are “circumstances that give ground for suspicion that the State may have breached a substantive obligation imposed by Article 2”.1 When is the Article 2 procedural obligation triggered? 10. There are some categories of case in which the mere fact of death gives rise to a possibility of State responsibility and this suffices to trigger the Article 2 procedural duty. In these categories, the procedural duty is automatically triggered, whether or not the evidence in the case discloses an arguable breach of any of the substantive obligations imposed by Article 2. 11. The case law in this area is complex and developing but indicates that the categories in which the Article 2 procedural duty will be automatically triggered include at least: —— all intentional killings by state agents (e.g. a police shooting);2 —— all violent deaths and suicides of persons detained in police or prison custody or during the course of arrest or search;3 and —— all violent deaths and suicides of persons detained in mental hospitals.4 12. In Letts it was said that the suicide of a voluntary psychiatric patient is also capable (depending on the facts) of automatically triggering the Article 2 procedural duty.5 However, the precise circumstances in which the suicide of a voluntary psychiatric patient will automatically trigger the procedural duty is presently unclear, so caseworkers should have regard to any relevant case law that emerges. 13. If caseworkers consider that the case falls within one of the categories in which the Article 2 procedural obligation is automatically triggered, or that it arguably does, they should proceed to the second stage of the test: is funded representation for the family of the deceased required to discharge the procedural obligation?6 1

R (Smith) v Oxfordshire Assistant Deputy Coroner [2010] UKSC 29 at §84 see e.g. McCann v UK 21 EHRR 97, at §161; Jordan v UK (2003) 37 EHRR 2 3 Salman v Turkey (2000) 34 EHRR 425; R (L) v Secretary of State for Justice [2009] 1 AC 588 4 R (Smith) v Oxfordshire Assistant Deputy Coroner (above) at §210(iv) 5 R (Letts) v Lord Chancellor [2015] EWHC 402 (Admin) at §92, see also §101 6 ibid at §103 2

Appendices 657

14. Even outside the categories where the Article 2 procedural obligation is automatically triggered, that duty may arise if—on the facts of the case—it can be shown that the State was arguably in breach of one of its substantive duties (i.e. the operational duty or the systemic duty). 15. It is unlikely that there will be an arguable breach of the substantive obligations where there is no State involvement in the death, for example, the fatal shooting of one private individual by another private individual (where the authorities had no forewarning or other knowledge prior to the death). Another example is a death in State detention through natural causes. 16. In the context of allegations against hospital authorities (outside of the categories of case where the procedural duty is automatically triggered) R (Humberstone) v Legal Services Commission7 makes clear that there will not be a breach of the substantive obligation where a case involves only allegations of ordinary medical negligence, as opposed to where the allegations of negligence are of a systemic nature. The judgment also emphasises the necessity for care to be taken to ensure that allegations of individual negligence are not dressed up as systemic failures. 17. Coroners may express a view as to whether they consider that the procedural obligation automatically arises, or that there has been an arguable breach of the substantive obligation and whether they intend to conduct a ‘Middleton inquiry’. It should be noted that, should the coroner choose to express their views, they are material and not determinative. There is no expectation that the coroner’s views should be actively sought. If the procedural obligation is triggered, is funded representation for the family of the deceased required to discharge the procedural obligation? 18. In cases where a caseworker has decided that the procedural obligation arises, he or she must then consider the second stage of the test for funding under Article 2 ECHR. 19. Where the “procedural obligation” does arise, Middleton8 makes clear that a Jordan compliant inquest is necessary. Jordan is a reference to the case of Jordan v UK9. This case concerned the shooting by police in Belfast of a young, unarmed man in 1992. The court established in Jordan that in order to satisfy the requirements of Article 2, any investigation had to satisfy the following five criteria to be effective: —— The inquiry must be on the initiative of the State, and it must be independent; —— It must be capable of leading to a determination of whether any force used was justified, and to the identification and punishment of those responsible for the death; —— It must be prompt and proceed with reasonable expedition; —— It must be open to public scrutiny to a degree sufficient to ensure accountability; and —— The next-of-kin of the deceased must be involved in the inquiry to the extent necessary to safeguard their legitimate interests.

7 8 9

[2011] 1 WLR 1460 R(Middleton) v HM Coroner for Western Somerset [2004] 2 AC 182 (2003) 37 EHRR 2

658 Appendices

20. In most cases the coroner can conduct an effective investigation, with the family’s participation, without the family of the deceased needing to be legally represented.10 21. In considering whether funded representation may be necessary to discharge the procedural obligation, all the individual facts and circumstances of the case must be taken into account by caseworkers, including: i) the nature and seriousness of the allegations against State agents; ii) previous investigations into the death; and iii) the particular circumstances of the family. i) The nature and seriousness of any allegations which are likely to be raised at the inquest against public authorities or other agencies of the State 22. Particular regard will be given to allegations based on evidence of gross negligence or systemic failures, for example, closely related multiple and avoidable deaths from the same cause within the same institution; criminal conduct; and attempts to conceal information or otherwise interfere with an investigation into the circumstances surrounding the death. ii) The particular circumstances of the family 23. Relevant factors may include whether the applicant is suffering from severe mental health problems (potentially arising from the circumstances of the death), or has a learning disability. As previously noted, Legal Help can be used to prepare a family for the inquest; to prepare submissions to the coroner setting out the family’s concerns and any particular questions they may wish the coroner to raise with witnesses. iii) Whether previous investigations into the death have taken place, and whether the family has been involved in such investigations 24. In some cases, separate investigations are carried out by authorities such as NHS Trusts, the Independent Police Complaints Commission and the Crown Prosecution Service prior to the inquest. Where there has not been a previous investigation, or the family has not played an active role in a previous investigation, the inquest may be the only investigation the State conducts into the death where the family is involved to the extent necessary to safeguard their legitimate interests. 25. Having considered the factors above, alongside all the circumstances of the case, caseworkers should make a decision on whether the second limb of the Article 2 test is met; and therefore whether to authorise funding for the family of the deceased. Wider Public Interest 26. Section 10(4) of the Act sets out that the Director can grant legal aid for excluded services for inquests (i.e. advocacy) where the applicant qualifies for legal aid, and the Director makes a “wider public interest determination” in relation to the applicant and the inquest. 27. A “wider public interest determination” is a determination that, in the particular circumstances of the case, the provision of advocacy for the individual for the

10 R (Humberstone) v Legal Services Commission (above) at §78; R (Letts) v Lord Chancellor (above) at §§120–122.

Appendices 659

28.

29.

30.

31.

32.

33.

urposes of the inquest is likely to produce significant benefits for a class of person, p other than the applicant and members of the applicant’s family. In the context of an inquest, the most likely wider public benefits are the identification of dangerous practices, systematic failings or other findings that identify significant risks to the life, health or safety of other persons. For a wider public interest determination to be made the wider public interest must be ‘significant’. Whether wider public interest is significant will depend on a number of factors: what the benefits are; whether the benefits are more or less tangible; whether they will definitely flow to other persons or whether this is just a possibility; and the numbers of people who will benefit (it will be unusual for significant wider public interest to apply to something that benefits fewer than around 100 people, for example). It should be noted that, in relation to inquests, it is not sufficient that there is significant wider public interest in the inquest itself. There must be significant wider public interest in the client being represented at the inquest for the case to qualify for a wider public interest determination. This means that an applicant must be able to demonstrate that representation is necessary to obtain any benefits that may arise, not just that the inquest itself may provide benefits. In deciding whether to make a wider public interest determination, caseworkers should consider whether there is a suggestion of large-scale systemic failure. If, for example, someone dies because a procedure is inappropriate or risky, then the caseworker will need to consider whether there are credible allegations that inadequate systems were in place. If the systems in place are adequate, but they were not followed, the reasons for this need to be considered. If the procedures were not followed because of the actions of a reckless individual, then caseworkers should consider whether the recklessness was a result of poor training or monitoring or otherwise reveals some systemic failing. If not, the case may not satisfy the ‘wider public interest’ test. If the procedures were not followed because no one knew about them, or there had been inadequate training or monitoring, then this may reveal systemic failure. Caseworkers will also need to consider whether there are likely to be improvements to systems as a result of the inquest. Where there were poor systems but these were followed correctly, or where there were good systems which were not followed correctly, the questions will be: are these failings so significant that reforming them (by improving systems or staff training) would bring significant benefits to a significant number of people (100 or more other persons)—and—how likely is it that such improvements will follow from the inquest? If the poor systems were in place, and these were not followed correctly, then there may be a need for a radical overhaul of the systems and improvements to staff training and management. If it seems that benefits of these kinds will flow from representation at the inquest (perhaps through rule 43 recommendations; see below), then this will add weight to a case to fund on wider public interest grounds. Under rule 43 of the Coroners Rules 1984, the coroner may announce at the inquest that he is reporting the case to the authorities with recommendations for action to prevent the recurrence of similar deaths. The authorities are not legally bound to accept or act on these recommendations, although they must respond to such a letter. Where no corrective action has been taken to prevent further deaths of the same kind,

660 Appendices

and the coroner says he is minded to make rule 43 recommendations, this may add weight to the case to grant funding, if the applicant’s legal representation is likely to enable him to uncover these systemic failings. 34. Where there have already been other investigations (by the ombudsman, Health & Safety Executive, hospital, etc) and these have made recommendations for improvements to systems or training, then this will reduce the potential for benefits to flow from the inquest, unless these investigations have failed to consider important evidence or additional significant errors. 35. Where the hospital or the body in question has accepted responsibility for failings leading to the death and has agreed to change systems or improve training to ensure that a similar death does not reoccur, then this will also reduce the likelihood that benefits will flow from the inquests, as these benefits have already been secured, so it is less likely that the case will be considered to be of wider public interest. Eligibility Limits 36. In general applicants must satisfy the eligibility limits as set out in regulations. However, there is a discretion to waive the financial eligibility limits relating to inquests if, in all the circumstances, it would not be reasonable to expect the family to bear the full costs of legal assistance at the inquest. Whether this is reasonable will depend in particular on the history of the case and the nature of the allegations to be raised against State agents, the applicant’s assessed disposable income and capital, other financial resources of the family, and the estimated costs of providing representation. 37. Where funding is granted to provide Legal Representation at an inquest, contributions may be waived in whole or in part. Where it is appropriate for a contribution to be payable this may be based upon the applicant’s disposable income and disposable capital in the usual way ignoring upper eligibility limits. As funding will cover only one-off advocacy services at the inquest, an appropriate total contribution will normally consist of one month’s assessed income contribution. Capital contributions will not take into account the client’s home, or any award of damages received by the family in compensation for the deceased’s death. Contributions should always be based on what can reasonably be afforded by the applicant and his or her family in all the circumstances of the case.

INDEX

Introductory Note References such as ‘178–79’ indicate (not necessarily continuous) discussion of a topic across a range of pages. Wherever possible in the case of topics with many references, these have either been divided into sub-topics or only the most significant discussions of the topic are listed. Because the entire work is about ‘inquests’, the use of this term as an entry point (and certain others which occur repeatedly throughout the book) has been restricted. Information will be found under the corresponding detailed topics. absolute necessity, 441 abuse, 56, 83, 267, 291, 311, 373, 531, 539 accidental death, 200, 232, 238–39, 314, 414, 418, 528, 532–33 accident/misadventure, 199, 287–88, 355–56, 439, 532 accidents, 287–89, 291–92, 299–301, 310, 400–401, 493–94, 497–98, 500 accountability, 47, 99, 101–3, 111–12, 116, 125, 402, 411–12 active service, 57, 113–14, 124, 453–56, 461–62, 464, 466, 468 adherence to the rule of law, 102–3, 110, 112, 118, 412 adjournment, 65, 154, 160, 163, 221–22, 231–32, 235, 276–77 Administrative Court, 7, 73, 132, 201, 517–19, 522, 526 administrative framework, 79, 81–83, 85, 396–97, 441, 459, 461 administrative law, 484 admissible evidence, 23, 42, 203 adversarial process, 39, 137, 145 advocacy services, 174, 179, 182, 185–86 affidavits, 142, 170, 512 affirmation, 153, 273, 275 age, 35, 88, 152–53, 160, 213, 215, 251, 297–98 alcohol, 73, 225, 284, 288, 292, 296, 300, 531 alcoholism, 199, 288, 300 allowances, 97, 216 alteration, 138, 140–41, 242, 492, 494 ambulances, 25, 51, 118, 184–85, 199, 232, 243, 356 anonymity, 90, 150, 209, 249–71, 331, 435, 447, 477 applications, 91, 261, 263–65, 476 order, 266–67 application by officers, 91, 256, 449 appointment, 2, 11, 20, 57, 59, 204, 327, 477 approach, change of, 8, 44, 46, 123, 305, 309, 417 appropriate authority, 10, 432–33, 437 appropriate medical treatment, 131, 231–2, 337, 361, 364, 366, 368, 373 appropriateness, 65, 288, 307, 312, 515 area coroners, 2, 57, 210–11, 524–25 arguable case, 113, 402, 520

armed conflict, 112, 463, 471, 473 armed forces, 83–84, 134, 173, 457–59, 462–65, 468–69, 494 armed police officers, 259, 263, 293, 442 armoured vehicles, 84, 467 arrest, 96, 203, 231, 239, 437, 441, 527, 529 lawful, 78, 95, 250, 441 Article 2, 77–135, 254–56, 304–12, 337–44, 372–80, 409–22, 445–55, 457–74 and local authorities, 395–403 assault, 51, 89–90, 94, 147, 242, 442, 448, 473–74 assessment, admission for best interests, 370, 383 objective, 259, 384 psychiatric, 94, 238 risk, 304, 391, 406, 431, 444 assistant coroners, 2, 57, 61, 210–11, 477, 524–25 assistant deputy coroners, 61, 63, 155–56, 158, 205, 268, 279, 527–28 asthmatic attack, 294, 355–56 authorisation of deprivation of liberty, 22, 369–71, 381–83, 386 standard, 370–71 urgent, 369–71 authoritative guidance, 32, 346–47 authorities, 81–90, 93–95, 101–5, 109–15, 395–99, 409–12, 459–62, 470–74 appropriate, 10, 432–33, 437 competent, 82, 397 enforcing, 139–40 local, 59, 81, 83, 88–89, 92, 266, 395–403, 535–36 managing, 370–71 military, 462, 467 national, 34, 81, 88, 397, 449 relevant, 31–32, 258, 268, 346–47, 538 automatic duty to investigate, 175–76, 189–90 autopsy, 55, 101, 103–4, 224, 410–12, 420; see also post-mortem examinations BAILII, 13–14 balancing exercise, 262–64, 267–69 barristers, 3, 14 basic medical attention, 230, 297–98, 350–51

662 Index belief, 338, 340, 441–43 honest, 97, 442–43 benefits, 63, 139, 148, 162, 179, 193, 521, 526 significant, 174, 179, 182 bereaved families, 9, 14, 74, 165, 226, 241, 434, 480–81 best interests, 370, 382–86 bias, 60–61, 74 appearance of, 57, 62 blanket prohibitions, 150, 167–68, 172 blood, 53, 182–83, 426 blood pressure, 24, 230, 294, 350–51, 357 blood sugar, 226 blood tests, 161, 354 Bloody Sunday, 122, 124, 259–60, 321 Board of Inquiry, see BOI bodies, 11–12, 17, 26, 55–56, 58, 179–80, 410–11, 420–21 release, 12, 55–56 BOI (Board of Inquiry), 465–67 bombings, 75, 96–97, 279, 473–75, 480 brain injuries, 394 brothers, 42, 138, 220–21, 242, 264, 314, 439–40, 529 bullying, 159–60, 166, 238, 373, 390–91, 460, 462 burden of proof, 101, 261, 290–91 burial, 11–12, 56 capacity, 82, 148, 235, 359–94, 397 lack of, 385 capping orders, 534 cardiac arrest, 65, 161, 183, 234, 241, 294, 354–55, 410–11 care, 83–84, 162–63, 234–35, 349–51, 358–60, 378, 386–88, 391 common law duty of, 300, 378 duty of, 43, 49–50, 80, 87, 95, 444, 451, 490–92 lack of, 42, 217, 231, 280, 297–98, 300, 303 relevant duty of, 490–91 and treatment, 93, 234, 339–41, 385, 492 care homes, 22, 26–27, 89, 358, 368–71, 395, 398–99, 532–33 care standards, 27, 358 careless driving, 291–92, 497–98, 541 caseworkers, 125, 176, 178–79, 189 causal connection, 64, 85, 199, 240, 300–301, 348, 419 direct, 24, 297, 299–303, 350 causation, 25–26, 28, 65, 232, 234, 300–301, 312, 352 causative circumstances, 120, 312, 426, 514 cause of death, medical, 71–72, 202, 224, 243, 283, 356, 387, 427 caution, 22, 144, 198, 282, 382, 469, 474, 526 CCTV evidence, 72, 427 cells, 93–94, 120, 302–3, 412, 414–15, 426, 443–44, 507 police, see police, custody cell-sharing risk assessments (CSRAs), 406 certificates, 23–24, 224, 268–69, 484, 527 death, 22–23, 224, 237, 241 certification, 1, 36, 44, 123 death, 2, 8, 44, 71, 184, 529 CFAs (conditional fee agreements), 173

chain of command, 431, 453, 465–67 Chief Coroners, 12–13, 21–22, 57, 215, 284–86, 327–28, 455–56, 503–6 Chief Coroner’s Guidance and Law Sheets, 12–13, 154, 271, 286; see also Appendices ‘Guidance’ chief officers of police, 140, 143, 145, 432, 434–36 child witnesses, 152–53, 253, 275 children, 65, 138, 153, 228, 231, 264–66, 275, 355–56 circumstances causative, 120, 312, 426, 514 exceptional, 33, 63, 198–99, 257, 264, 271, 477, 479–80 civil claims, 180, 190–94, 340, 342, 345, 415, 443–44, 499–500 civil courts, 149, 209, 232–33, 442, 469 civil law, 218, 303–4, 442, 499 civil legal services, 181–83, 188 civil liability, 41–43, 45, 51, 124, 293, 306, 310, 443 civil partnership, 138, 182–83 civil proceedings, 29, 189–93, 212, 227–28, 247, 252, 343, 541–42 subsequent, 173, 191, 541–42 civil rights, 178, 259 civilians in war, 329, 453–74 claim forms, 165, 389, 477, 486, 517–19, 534 claimed risks to life, 86, 94, 262, 399, 445, 472 claims for damages, 33, 115, 144, 460, 499–500 clinical findings, 102–4, 412 clinicians, see doctors close blood relations, 141–42 closed hearings, 75–76, 269, 279, 319, 321, 329–31, 480, 482 closed material, 321, 480–82 procedure, 484, 487 closed proceedings, 263, 321 closed sessions, see closed hearings Clostridium difficile, 161, 354 cohabitants, 182–83 collisions, road traffic, 65–66, 284, 295 collusion, 73, 102–4, 110, 112, 118, 126, 262, 412 risk of, 171–72 command, chain of, 431, 453, 465–67 Commission for Racial Equality, see CRE common law, 150, 156–57, 254, 256, 262, 264, 267, 470 duty of care, 300, 378 duty of fairness, 261–62 powers, 155–56, 263 tests, 261 community patients, 365, 367 community treatment orders, 359, 363–65, 367 compensation, 81, 340, 397 competent staff, 83, 373–74, 378 competing public interests, 263, 268, 271 complaints, 74–75, 80–81, 127–28, 223, 240, 338–41, 431–33, 443 formal, 59, 101, 103, 132, 339, 411 complex cases, 71, 99, 285, 439 complexity, 72, 187, 197, 216, 286, 427, 455 compliant investigation, 98, 460 compulsory detention, 175, 384, 428

Index 663 conclusions, 42–43, 45, 107–9, 282–318, 355–57, 393–94, 423–25, 481–83 factual, 43–45, 107, 123–24, 305–6, 308, 310, 417, 512 general, 42, 227, 265, 311, 350, 402 judgmental, 45, 124, 304, 306, 310 narrative, 45, 123, 283, 285, 304–12, 314, 417, 532–33 open, 202, 204, 242, 295–96, 313, 440, 484–85, 529 short-form, 44, 123, 239, 284–85, 287, 304–5, 309, 417 conduct, 2–3, 17–18, 60–61, 103–4, 184–86, 301–2, 470–71, 523–25 discreditable, 47, 106, 111, 413 human, 86, 94, 401, 445, 472 of inquests, 12, 44, 56, 108, 123, 311, 416, 425 negligent, 459, 466, 469, 472 proper, 228–29 conferring by witnesses, 171–72 confidence, public, 102–3, 110, 112, 118, 125, 172, 206, 348 confusion, 22, 293, 341, 423, 429, 443 conscripts, 80, 115, 460–61 consent, 151, 213–14, 362, 367, 382, 384–85, 432, 521 consistency, 23, 57, 209–10 construction, 199, 481–83, 491–92, 494 consultant psychiatrists, 164, 238, 246, 278 independent, 165–66, 239, 246, 279, 389–90 consultants, 161, 164–65, 231–32, 241, 246, 354, 389–90 contempt of court, 150, 152, 170–71, 263 continuance or possible recurrence, 10, 50, 195, 199, 201–2, 343 contributions, 210, 420, 426, 513 Convention requirements, 43–44, 86, 94, 123, 399, 445, 472 Convention rights, 40, 77, 79, 83, 89, 188, 265, 285 coordination, 348–49, 454 negligent, 133, 337, 377–78 copies, 141, 150, 213–16, 222, 252, 328–29, 504–6, 518 core issues, 309–10 core participants, 320–21, 325–26 coroner areas, 2, 197, 210, 212, 524 coroners, 55–68; see also Introductory Note and detailed entries Coroners Act 1988, 13, 15, 23–24, 26, 182–83, 210, 233, 521–22 Coroners and Justice Act 2009, 9–11, 15–18, 57–58, 150–52, 195–96, 210–12, 380–82, 384–86, 503–4 background, 7–9 Coroners (Inquests) Rules 2013, 12 Coroners (Investigations) Regulations 2013, 11–12 Coroners Rules 1984, 7–8, 12, 39, 44, 156, 217, 221, 346 coronial jurisdiction, 7–9, 13, 218, 268, 288, 350 coronial process, 14, 69, 281, 538 corporate homicide, 490–91 corporate manslaughter, 292, 489–91, 498–99 correspondence, 49, 60–61, 72–74, 121, 161, 219, 228, 251

costs, 180–81, 190–93, 244, 317, 320, 381–82, 435–36, 533–37 of disclosure, 214 judges, 180, 190, 192 orders, 320, 521, 533, 535 of representation, 190, 320 CPS (Crown Prosecution Service), 48–49, 177, 184, 435–36, 438, 489, 495, 497–99 CRE (Commission for Racial Equality), 47, 105, 413 cremation, 11–12, 26, 56, 237, 357 criminal courts, 36, 227, 264, 366, 442, 529 criminal investigations, 21, 82, 109, 128, 223, 419 criminal law, 31, 82, 145, 170, 233, 258, 442, 497–98 criminal liability, 39, 41–43, 45, 285–86, 320, 322, 326–27, 511–12 criminal offences, 102, 121, 266, 291, 295, 313, 439–40, 497 criminal proceedings/trial, 16–17, 30–31, 33, 35–36, 265, 344–45, 436, 495–97 cross-examination, 71, 111, 162–63, 168, 229, 282, 520 Crown Court, 197, 315, 366–67, 480 Crown Prosecution Service, see CPS CSRAs (cell-sharing risk assessments), 406 culpable human failure, 25–26, 236–37, 294, 337, 350, 352–53, 357 curiosity, idle, 137, 143–45 custodial institutions, 491–93 custody, 115–16, 195–96, 202–4, 211, 232, 376–78, 443–44, 462 cases, 376, 378, 430 deaths in, 46, 72, 115, 189, 199, 203, 405–28, 430 records, 430, 435 state, 47, 55, 130–31, 173, 175, 381 damages, 192–93, 269, 271, 324, 338, 374, 459, 469 claims for, 33, 115, 144, 460, 499–500 dangerous activities, 81–82, 115, 395–97, 401, 459, 469 daughters, 35, 91, 162, 236, 238, 460 death certificates, 22–23, 224, 237, 241 death certification, 2, 8, 44, 71, 184, 529 death or serious injury, see DSI matter deaths accidental, 200, 232, 238–39, 314, 414, 418, 528, 532–33 in custody, 46, 72, 115, 189, 199, 203, 405–28, 430 by natural causes, 22–25, 55, 230, 288, 294, 350, 352–53, 355–56 in the workplace, 247, 489–500 defects, 45, 48, 50–51, 343–44, 411, 417, 459, 464 defence, 95, 97–98, 170, 438, 440, 465, 467–69, 474 Defence Inquests Unit (DIU), 455 defendants, 44, 192–93, 243–44, 291, 442, 497, 518–20, 534 deficiencies, 23–24, 32, 102–4, 109, 346, 348, 412, 421 dehydration, 161, 354, 414 delay, 116–18, 222, 224, 231, 317, 435, 437, 525–27 undue, 169–70, 517, 524 democratic society, 83, 96–97, 101, 251, 474 dependent persons, 298, 350 depression, 91, 107, 296, 374, 399, 443, 461

664 Index deprivation of liberty, 22, 131, 360, 369, 379–85 orders, 22 safeguards, 196, 198, 207, 360, 371, 379, 386 deprivation of life, 78, 95–97, 101, 108, 110, 250, 410, 441 deputy assistant coroners, 147, 201, 484 deputy coroners, 65, 68, 204–5, 207, 282, 284, 310, 515 assistant, 61, 63, 155–56, 158, 205, 268, 279, 527–28 detained patients, 116, 364, 372–73, 375–76, 454, 460, 491–92 detainees, 131–32, 204, 405–6, 416, 462 detention, 307, 360–61, 365–67, 371, 376–77, 381, 383–85, 436–37 persons in, 115, 132 state, 17–18, 22, 130–32, 195–97, 380–81, 383, 386, 405–7 determinations, 41, 108–9, 178–79, 182, 188, 197, 285–86, 326 devices, 468, 476 direct causal connection, 24, 297, 299–303, 350 directions, 43, 160, 308, 391, 513, 518, 532 director of legal aid casework, 125, 174–75, 177, 179, 187 Director of Public Prosecutions, see DPP Director of Service Prosecutions, 19–20 disabilities, physical, 380 discharge, 108–9, 180, 342, 364–67, 376, 383, 417, 516 disciplinary offences, 433, 457 disciplinary proceedings, 343, 348, 437 disclosure, 48–49, 213–29, 268–71, 323–24, 434–36, 476–80, 483–85, 496 advanced, 221–22, 282 of documents, 12, 71, 138, 140–41, 213, 215, 217, 223 of evidence, 209, 217, 219, 223, 226 of investigatory material, 495–96 managing, 214, 252 pre-inquest, 434–36 of relevant statements, 74, 226 restrictions, 324–25 discontinuance, 18, 35, 58, 407 discreditable conduct, 47, 106, 111, 413 discretion, 120, 145, 158–59, 165, 206–7, 220, 279, 318 residual, 118, 185, 195 wide, 10, 16, 64, 161, 165, 167, 238–40, 389–90 discretionary decisions, 62, 205–6 disease, 139–40, 196, 289–90, 353, 408, 490 disputed factual issues, 109, 308, 310, 417, 516 DIU (Defence Inquests Unit), 455 Divisional Court, 29–30, 41–42, 156–57, 202–5, 350–52, 356–57, 466–67, 531 doctors, 22–24, 161, 302–3, 339–40, 343, 354–55, 373–75, 414–15 general practitioners, 27, 31, 165, 167, 390–91 prison, 94–95, 166, 239, 389–90, 410, 414 documentary evidence, 71, 156–59, 217, 222, 359, 392, 434 documents, 140–41, 150–52, 156–57, 211–21, 252, 268–71, 328, 434–36 disclosure, 12, 71, 138, 140–41, 213, 215, 217, 223

production, 56, 217, 478 release, 215 relevant, 151, 212–13, 226, 229, 519, 528 DoLS, see deprivation of liberty, safeguards domestic authorities, 30, 116, 134, 376, 470–71 domestic courts, 82, 85, 126, 129, 348, 398 domestic laws, 101, 103–4, 109, 116, 127, 373, 378, 411 DPP (Director of Public Prosecutions), 100, 102, 117, 151, 213, 276, 439, 539 drivers, 65–66, 292, 498, 541 drugs, 53, 237, 239, 280, 288–89, 292, 388, 399 abuse, 289, 298 overdoses, 92, 399, 528 withdrawal, 414–15 DSI (death or serious injury) matter, 172, 431–33 duties, 17–19, 21–27, 83–87, 133–35, 370–75, 431–33, 444–45, 490–91 automatic, 175–76, 189–90 of care, 43, 49–50, 80, 87, 95, 444, 451, 490–92 common law, 300, 378 of fairness, common law, 261–62 general, 83, 92, 100–102, 122, 339, 400, 411, 444 general/systemic, 79, 130 to hold an inquest, 15–37 cases, 22–37 legislation and other sources, 17–22 onerous, 154, 221, 228, 482 Osman, 254–55, 450–51 positive, 84, 88–89, 338, 450, 461 primary, 80–82, 397, 441, 460 procedural, 43, 112–14, 122, 126, 130, 196, 507, 515 statutory, 43, 49, 86, 270, 332 substantive, 79, 84, 112–13, 176, 349 systemic, 77, 85–86, 95, 132, 176, 372 ECtHR (European Court of Human Rights), 79–89, 92–100, 116–18, 126–34, 244–47, 395–401, 457–62, 466–74 effective investigation, 31, 51, 162–63, 175, 185, 235, 281, 339–41 effective judicial system, 341–42, 419 effective official investigation, 29, 75, 100–101, 103–4, 106, 114, 243, 339 effective participation, 99, 185, 187, 210, 221, 419, 438 effective procedure, 99, 120, 507 effective protection, 82, 86–87, 397, 402, 445, 448, 460 effective public investigation, 107, 114 effectiveness, 82, 109, 117, 152–53, 162, 235, 253, 275 emergency, 362, 366, 474, 491 medicine, 231–32 services, 51, 122, 351, 395, 401, 430, 458 triage, 50–51, 163, 343–44, 347 employees, 48, 139, 200, 331, 489, 491, 493 former, 87, 290, 331 enforcement, 79, 181 ordinary, 258 enforcing authorities, 139–40 enhanced investigations, 1, 174, 186 enquiries, 18, 22, 34, 169, 238, 278, 300–301, 495 entitlement, 140–41, 145, 153, 159, 220, 275, 539 epilepsy, 199, 242, 531

Index 665 equipment, 85, 120, 134, 343, 454, 464, 468, 507 errors, 49–50, 158, 160, 189–90, 383, 465–66, 524, 529–30 human, 465–67 of judgment, 133–34, 337, 339, 377–78, 454 of law, 67, 125, 383, 524, 527, 529–30, 532, 539 negligent, 134, 454, 465 estates, 137, 143, 145, 444 European Court of Human Rights, see ECtHR European Union, 150, 174, 177–78 evaluation, 230, 241, 351, 418, 441 even-handed, 262 evidence, 48–50, 62–68, 149–72, 209–47, 250–62, 314–18, 387–91, 541–43 admissible, 23, 42, 203 available, 152, 213 disclosure, 209, 217, 219, 223, 226 discovery of new facts or, 210, 233, 524 documentary, 71, 156–59, 217, 222, 359, 392, 434 expert, see expert evidence false, 151, 213 forensic, 101, 103–4, 109, 412 giving of, 152–53, 253, 255, 257, 259, 261, 263, 274–75 hearsay, 155–56, 216 insufficient, 64, 85, 88, 100, 295, 413, 446, 449 live, 41, 68, 222, 427 medical, 23, 29, 239, 242, 245, 379, 387, 410 new, 35, 53, 68, 100, 167, 238, 242, 537–38 obtaining of, 72, 191, 427 oral, 28, 111, 160, 169, 317, 325, 366, 520 psychiatric, see psychiatric evidence relevant, 64, 66, 143, 145–47, 149, 155, 159, 161 sensitive, 279, 475, 480 by video link, 152, 187, 253, 273–75 witness, 99, 150, 154, 193, 209, 221, 251, 387–88 written, 68, 72, 150, 155, 158, 214–15, 518, 520 examination, 18, 28, 56, 58, 140, 211, 340, 493 of witnesses, 76, 153, 220, 273, 276, 481 exceptional cases, 66, 182, 184, 186, 342, 435 determination, 178, 182, 188–89, 521 exceptional circumstances, 33, 63, 198–99, 257, 264, 271, 477, 479–80 exceptional funding, 125, 174–75, 177–79, 183, 187–89, 521 exceptional public interest, 523, 529 exceptional reasons, 16, 20, 327, 483 excessive force, 64, 472 expedition, reasonable, 98, 102–3, 117, 412 expenses, 59, 148, 160, 170, 193, 216, 241, 499 expert evidence, 149, 162–64, 209–10, 233–36, 240, 244–46, 387–88, 499 independent, 149, 162–64, 166, 233–35, 240, 243–44, 246, 389–90 lack of, 162–63, 235, 243 expert reports, 28, 230, 233, 236–37, 357 expert witnesses, 149, 162, 216, 238–39, 391 expertise, 99, 117, 162, 164, 231, 235, 389, 423 medical, 163, 240, 341 necessary, 117, 246, 418 relevant, 230, 242

experts, 26–28, 162–67, 228–46, 348, 387–88, 390, 499–500, 542 family’s, 28, 245 explosions, 81, 134, 148, 396 eye witness testimony, 101, 103–4, 412 fact-finding exercise, 39, 42, 440 facts, relevant, 56, 75, 110–11, 311, 426, 514, 531, 536 factual conclusions, 43–45, 107, 123–24, 305–6, 308, 310, 417, 512 factual issues, 68, 304, 307 disputed, 109, 308, 310, 417, 516 factual questions, 45, 123, 305, 308, 417 factual statements, 43, 285, 304–5, 356 failure operational, 85, 464 significant, 120, 426, 514 failures culpable human, 25–26, 236–37, 294, 337, 350, 352–53, 357 systemic, 47–50, 87, 201–2, 234–35, 388–90, 448, 461–62, 466–67 fair investigation, 51, 235 fairness, 42, 209–10, 217, 219, 221–22, 227, 261–62, 332 common law duty of, 261–62 interests of, 221–22 procedural, 154, 221, 277 false evidence, 151, 213 families, 102–8, 164–69, 173–77, 182–87, 278, 388–90, 413, 434–35 bereaved, 9, 14, 74, 165, 226, 241, 434, 480–81 requests, 43, 72, 121, 427, 512, 528 family life, 56, 251, 254, 267 family members, 96, 173, 179, 186, 265, 382, 384–86, 495 family problems, 166, 238, 390–91 fatal force, 97, 162, 235 fathers, 80, 147, 234, 236, 241, 256, 290, 532 fault, 115, 155, 236, 288, 355, 402, 425, 512 fears, 229, 231, 255, 260–62, 267, 332, 351, 353 fees, 214, 216, 278, 481, 534 financial interests, 137, 143 findings, see Introductory Note firearms, 82–83, 293, 431, 441–42, 509 force, 9–13, 95–97, 100–101, 126–27, 209–13, 367–71, 408, 440–42 fatal/lethal, 97, 100–104, 108–10, 115, 118, 441–42, 472, 474 foremen, 511–12 forensic evidence, 101, 103–4, 109, 412 forensic examination, 112, 410, 420–21 Forensic Medical Examiner (FME), 245, 430 formal complaints, 59, 101, 103, 132, 339, 411 former employees, 87, 290, 331 foul play, 56, 311, 531 freedom of choice, 381, 385 freedom of expression, 251, 263, 266, 459 fresh evidence, see new evidence fresh inquests, 67–68, 72–73, 200, 241–43, 528–29, 531, 538–40, 542–43

666 Index fresh investigations, 18, 36, 537 full and fair investigation, 51, 235 functions, 8, 55, 57, 129, 143–45, 184, 186, 322–23 inquisitorial, 143, 145, 483 juries, 43, 75, 305, 316 public, 491 statutory, 180, 476, 491, 530 fundamental rights, 87, 177–78, 448, 453 funded representation, 185–86 funding, 59, 99, 118, 125, 173–94, 282, 342–43, 534–36 exceptional, 125, 174–75, 177–79, 183, 187–89, 521 failure to grant, 174–75, 178 public, 173–74, 177, 320, 521, 535 general conclusions, 42, 227, 265, 311, 350, 402 General Medical Council, see GMC general obligations, 80–81, 83, 85, 373–74, 378, 396, 445 general practitioners, 27, 31, 165, 167, 390–91 general principles, 5, 89, 100–102, 109, 116, 131, 525, 529 general public importance, 425, 534 genuine connection, 126–29 GMC (General Medical Council), 32, 237, 345, 357, 543 good practice, 74, 149, 206, 408, 434, 436, 439, 499 government departments, 139–40, 196, 490 gross failure, 24, 230–32, 297–98, 302, 307, 350–51 gross neglect, 24, 164, 298, 304 gross negligence, 31, 49, 86–87, 177, 184, 345, 445, 448 manslaughter, 49, 63, 184, 234, 245, 315, 342 guardians, legal, 152–53, 253, 275 guardianship, 365–66 guidance, 11–13, 175–80, 185–86, 188–90, 434–35, 504, 513–14, 534–35 authoritative, 32, 346–47 general, 141, 167, 391, 530 new, 176, 178–79 half blood, 182–83 harm, 143, 145, 264, 266, 302–3, 324, 400, 448 self, see self-harm serious, 367, 484–85 health, 85, 183–84, 348, 361, 364–65, 373, 495, 498–500 authorities, 29, 83, 228, 340, 357, 373–74 care, 164, 246, 389, 391, 409, 466 physical, 387–88, 394 mental, see mental health professionals, 133, 337, 339–40, 377–78, 401 and safety, 195–96, 199, 201–2, 405, 413, 489–90, 495, 499–500 Health and Safety Executive, see HSE hearings, 65–67, 69–75, 140–41, 152–55, 213–17, 252–53, 273–83, 422–25 closed, 75, 279, 329, 480, 482 oral, 219, 326, 377, 520 public, 72–73, 168, 427 substantive, 377, 520 hearsay evidence, 155–56, 216

High Court, 13–14, 217–18, 260, 268–70, 308, 317, 426–27, 521–24 HM Inspectorate of Prisons, 406, 408 home, 22–24, 81, 88–89, 256, 357–58, 396–99, 429, 451 Home Office, 29, 190, 193, 431, 434 Home Secretary, 75–76, 105, 168, 319, 391, 413, 430, 477 homicide, 132, 265, 293, 410, 442–43 see also manslaughter; murder excusable, 293 offences, 19, 138–39, 276, 433 honest belief, 97, 442–43 hospital, relevant, 370–71 hospital authorities, 30, 337, 343, 373, 376, 378, 466 hospital deaths, 160–61, 231, 294, 353–54 hospital orders, 33, 93, 366–68 hospitals, 50–51, 163, 232–36, 341–44, 347–51, 360–70, 373–86, 509–11 mental health, 22, 30, 130–31, 189, 195, 374, 376, 378 prison, 155, 378, 416, 419 staff, 299, 350, 374, 383 triage, 50, 343 hostages, 470, 474, 526 housing authorities, 46, 309 HSE (Health and Safety Executive), 489, 494–97 human conduct, 86, 94, 401, 445, 472 human error, 465–67 human life, 109, 402, 441 human rights, 77, 79, 91, 254–56, 264–66, 379–81, 395–96, 398–400; see also ECtHR husbands, 24, 29, 347–48, 376, 379, 400, 402, 410 hypertension, 24, 230, 294, 353, 357 hypnosis, 295 ICU, 380, 382–83 IDCs (immigration detention centres), 22, 195, 381 identification and punishment, 101, 103, 108–9, 116, 412 idle curiosity, 137, 143–45 IEDs (improvised explosive devices), 84, 467 IHAT (Iraq Historic Allegations Team), 187, 474 illness, 31, 297–98, 348, 350, 373 mental, 92–93, 95, 125, 372–73, 375, 388, 393, 428 see also mental health immediate risk, 33–34, 83–95, 132–34, 254–59, 374–75, 400–401, 409, 445–51 test, 257, 449 immigration, 492–93 immigration detention centres (IDCs), 22, 195, 381 immigration removal centres (IRCs), 405 imminent risk, 349, 450 impartial investigation, 82, 397, 467 imprisonment, 94–95, 131, 151, 154, 199, 213, 366, 368 improvised explosive devices (IEDs), 84, 467 inadequate planning, 134, 464, 470–71 incarceration, 297–98 independence, 59, 101–3, 112, 116, 245, 406, 411, 421 independent consultant psychiatrists, 165–66, 239, 246, 279, 389–90

Index 667 independent expert evidence, 149, 162–64, 166, 233–35, 240, 243–44, 246, 389–90 independent investigation, 29–30, 105–6, 116–17, 163, 166, 243–45, 375–76, 461 Independent Police Complaints Commission, see IPCC independent psychiatric evidence, 166, 238–39, 390 independent public inquiries, 47, 105, 110, 184, 413 indictment, 19, 41, 227, 440, 491 industrial diseases, 139, 284, 290, 298 infanticide, 291–93, 443, 498 informal patients, 91, 125, 374–75 information, 34, 142, 215, 251–52, 266–67, 323–24, 432, 494–96 relevant, 60, 249, 467 sensitive, 324, 476 inherent risks, 82, 257, 397, 453, 457–58 inhumanity, 56, 311, 531 initiative, 17, 32, 101, 103, 132, 152–53, 253, 275 injunctions, 264, 266–67, 519, 522–23 injuries, 101, 103–4, 289–90, 409, 411–12, 459–60, 469, 493–94 brain, 394 life-threatening, 47, 88, 104, 106, 413 personal, 499 serious, 172, 431 injustice, 65, 222, 241, 487, 525, 530 inquest hearings, see hearings inquests, see Introductory Note and detailed entries inquiry, 20–21, 167–69, 254–55, 259–62, 270–71, 319–29, 331–33, 479 insufficiency of, 166–67, 202, 210, 230, 238, 391, 540, 543 panels, 111, 168, 321–23, 325–26 preliminary, 2, 21, 55 scope of, 278, 312 sufficiency of, 53, 154, 167, 238, 391 inquiry processes, 106, 111, 322, 392 inquisition, 288–89, 293, 295, 415–16, 512–13, 528–29, 531, 533 inquisitorial function, 143, 145, 483 inquisitorial process, 41, 227, 281, 440, 482 insanity, 290–91 inspection, 76, 141, 211, 213–14, 252, 328 inspectors, 140, 187, 196, 490, 495–96, 500 insufficiency of inquiry, 166–67, 202, 210, 230, 238, 391, 540, 543 insufficient evidence, 64, 85, 88, 100, 295, 413, 446, 449 intelligence services, 128, 475–87 intensive care, 65, 207, 241, 348, 354, 380 intention, 31, 296, 298, 302, 304, 383, 385, 393 intentional killing, 96, 101, 176, 451 intercepted communications, 478–79 interception warrants, 478–79 interested persons (IPs), 74–76, 137–48, 219, 226–27, 279, 431–36, 475–78, 480–81 list of, 74, 226 properly interested persons, 76, 143, 279, 476, 484–87 rights, 76, 279

interests, 143, 252–53, 363, 432, 505–6, 520, 522–24, 536–39 best, 370, 382–86 competing, 262, 268, 453 direct, 476, 486 of fairness, 221–22 legitimate, 99, 102–3, 108, 111, 125, 132, 176–77, 186–87 of national security, 70, 75–76, 249, 251–52, 273–74, 280, 475 particular, 1, 62, 256–57 private, 332, 534 public, see public interest vexatious, 142 interference, 251, 264–65, 386 disproportionate, 254 minimum, 362 interim relief, 219, 398, 518; see also injunctions interlocutory decisions, 57, 61–62 internal investigations, 30, 117, 124, 246, 376–77 investigation process, 15–16, 117, 377 investigations, 15–22, 34–37, 98–106, 108–12, 114–19, 209–15, 327–30, 410–13 compliant, 98, 460 criminal, 21, 82, 109, 128, 223, 419 effective, 31, 51, 162–63, 175, 185, 235, 281, 339–41 enhanced, 1, 174, 186 fresh, 18, 36, 537 full and fair, 51, 235 impartial, 82, 397, 467 internal, 30, 117, 124, 246, 376–77 official, 29, 108, 115, 132, 416 proper, 32–33, 112, 206, 346, 378 resumption, 18, 21, 197, 408 investigative duties, 43, 45–47, 107, 114, 125, 329, 341, 459 investigative obligation, 43, 46, 108, 123, 125, 128, 465–66, 474 enhanced, 175, 185 investigative procedures, 101–3, 132, 411 investigative process, 117, 176, 329, 496 investigators, 110, 112, 420–21, 438, 464 involving state agents, 101, 103, 116, 411 IPCC (Independent Police Complaints Commission), 139, 171, 177, 377, 406, 429, 431–33, 437–38 IPs, see interested persons Iraq, 112–13, 187, 320, 453–54, 457, 461, 463, 465–66 Iraq Historic Allegations Team (IHAT), 187, 474 IRCs (immigration removal centres), 405 irregularities, 41, 65, 72, 202, 210, 427–28, 522, 524 Jamieson inquests, 40, 46–48, 50, 119, 230, 299–307, 311–12, 350–53 judgment error of, 133–34, 337, 339, 377–78, 454 exercise of, 144, 471–72 political, 134, 454, 469, 471 judgmental conclusions, 45, 124, 304, 306, 310

668 Index judicial review, 59–63, 70–73, 203–6, 223–27, 276–80, 476–78, 484–87, 515–40 applications, 48, 357, 416, 535, 539 proceedings, 41, 43, 60, 62, 105, 107, 231–32, 241 juries, 39–46, 62–68, 192–207, 280–87, 304–18, 422–30, 510–15, 528–33 conclusions, 108–9, 305–6, 308, 310, 312, 417, 442–43, 512 foremen, 511–12 functions, 43, 75, 305, 316 properly directed, 300–301 jurisdiction, 51–52, 84, 100–101, 103–4, 270–71, 442, 463–64, 534–35 coronial, 7–9, 13, 218, 268, 288, 350 jurisdictional requirement, 454, 463–64 jurors, 195, 197–98, 529, 533 jury inquests, 96, 196–97, 204, 274, 489 jury service, 197–98 killing, 96–97, 99–100, 105, 114–15, 127, 129–30, 291–93, 339 lawful, 292–93, 442–43 unlawful, 48–50, 286–88, 290–94, 315–18, 438–42, 497–99, 511, 531–32 knowledge, 60–61, 87–88, 158, 160–61, 237, 278, 446, 448 lack of capacity, 385 lack of care, 42, 217, 231, 280, 297–98, 300, 303 lack of hierarchical or institutional connection, 101, 103, 411 lack of independent expert evidence, 162–63, 235, 243 landlords, 83, 88–89, 497 Law Sheets, 12–13, 59, 154, 271, 286 lawful arrest, 78, 95, 250, 441 lawful killing, 292–93, 442–43 lawfulness, 62, 100, 112–13, 125, 457, 463 legal aid, 102, 125–26, 173, 181, 183, 187–89, 521 see also funding applications for, 174, 176 legal guardians, 152–53, 253, 275 legal proceedings, 76, 78, 181, 279, 396, 401, 478, 495 legal representation, 118, 174, 177, 181, 185, 187, 320, 534 legal representatives, 48, 75–76, 161, 220, 434–35, 476, 480–81, 483 legal services, 59, 173, 178, 181–82 civil, 181–83, 188 Legal Services Commission (LSC), 99, 118, 174, 184–85, 187, 342–43 legislative policy, 202–3, 428 legitimate interests, 99, 102–3, 108, 111, 125, 132, 176–77, 186–87 legitimate purpose, 171, 228–29 lethal force, 97, 100–104, 108–10, 115, 118, 441–42, 472, 474 letters, 22, 24, 49, 53, 121, 162, 164, 420 liability, 122, 132, 180–81, 238, 243, 340–42, 491, 534 criminal, 39, 41–43, 45, 285–86, 320, 322, 326–27, 511–12 potential, 337, 341–42

liaison, 438, 497 liberty, 22, 131, 196, 360, 369–70, 379–86, 457, 493 deprivation of, see deprivation of liberty life, 77–89, 92–95, 100–106, 254–57, 337–43, 393–401, 448–51, 458–64 deprivation of, 78, 95–97, 101, 108, 110, 250, 410, 441 expectancy, 89, 133, 398–99 human, 109, 402, 441 loss of, 120, 124, 341, 419, 426, 465, 507 private, 264, 267 protection of, 79, 88, 132, 372, 448 life-threatening injuries, 47, 88, 104, 106, 413 links, 116, 341, 349, 436–37 causal/causative, 27, 85, 199, 202, 348, 358, 419 live evidence, 41, 68, 222, 427 live firing exercises, 506–7, 511 local authorities, 57, 59, 81, 83, 88–89, 92, 266, 535–36 and Article 2, 395–403 Local Authority Secure Children’s Homes (LASCHs), 307, 418 local health boards, 11 Local Safeguarding Children Boards, 12, 215, 505 London bombings, 2, 200–201, 480, 509, 511 Lord Chancellor, 13, 20, 118, 182–83, 185–86, 189, 327, 482–83 Lord Chief Justice, 20, 57, 59, 319, 327, 538 loss of life, 120, 124, 341, 419, 426, 465, 507 LSC, see Legal Services Commission majority verdicts, 264, 293, 347, 349, 352, 382, 525 managing authorities, 370–71 mandatory orders, 29, 165, 243, 389, 518 manslaughter, 48–49, 164, 166, 290–93, 443, 497–98, 525–26, 539 corporate, 292, 489–91, 498–99 gross negligence, 49, 63, 184, 234, 245, 315, 342 material, 222–23, 228–30, 268, 434–36, 475–78, 483–85, 496, 527–28 closed, 321, 480–82 documentary, 434, 436 relevant, 23, 228, 321, 331, 476, 483 sensitive, 11, 475–78, 483 material facts, 172, 519, 539 material time, 24, 339, 367 media, 263, 265, 439, 486–87 medical attention, 232, 236, 298, 302–3 basic, 230, 297–98, 350–51 medical care, 22, 24, 26–27, 162–63, 232–37, 349, 387–88, 419 medical cause of death, 71–72, 202, 224, 243, 283, 356, 387, 427 Medical Certificates of Cause of Death (MCCDs), 11 medical context, 338, 343 medical evidence, 23, 29, 239, 242, 245, 379, 387, 410 medical examiners, 11, 139, 231 medical expertise, 163, 240, 341 medical experts, 162, 165–66, 230, 235, 237, 239, 277, 422–23

Index 669 medical inquests, 160, 162–63, 337–59 medical necessity, 22 medical negligence, 50–51, 162–63, 229, 231, 338, 340–43, 347–48, 350 ordinary, 337 medical practitioners, see doctors medical records, 53, 237, 242, 338–40, 419 medical reports, 243, 423 medical treatment, 231–32, 243, 287, 355, 361, 364–66, 368, 422 appropriate, 131, 231–2, 337, 361, 364, 366, 368, 373 medical witnesses, 64, 161, 184, 240 medication, 24, 94, 234, 242, 362, 387–88, 415 meningitis, 348–49, 379 Menson duty, 330 mental disorder, 125, 361, 364–66, 368, 382 mental health, 91–94, 164, 166, 189, 235–36, 349, 359–94, 492 hospitals, 22, 30, 130–31, 189, 195, 374, 376, 378 inquests, 359, 387–88, 393–94 legislation, 83, 381 patients, 126, 387–88 detained, 454, 460 problems, 50, 94, 177, 192, 236, 343, 357, 393 units, 91, 116, 125, 375 mental illness, 92–93, 95, 125, 372–73, 375, 388, 393, 428 middle ground, 455, 471–72 Middleton inquests, 40, 46–48, 51, 119, 121–24, 305–6, 308–12, 341–43 military discipline, 457–59, 462 military life, 453, 457–60 characteristics, 457–58 military operations, 135, 453, 468–71, 473 military personnel, 47, 82–84, 112–13, 259, 262, 320, 329, 453–74 deaths, 453, 462, 464 military police, 82–83, 203, 428, 465 Ministry of Defence, see MoD misadventure, 44, 123, 231, 284, 287–89, 318, 530 misconduct, 343, 432–33 misdirection, 380, 383, 529–30 MoD (Ministry of Defence), 84, 124, 455, 462, 465, 467–68, 526, 536 monitoring, 10, 351, 353–54, 357, 414, 456 mothers, 33, 43, 46, 112–13, 184–85, 224, 264–66, 460–61 murder, 8, 34–35, 262, 291–93, 344–45, 412–13, 443, 498; see also homicide; manslaughter; unlawful killing named persons, 39, 41–43, 45, 124, 227, 285–86, 306, 326 narrative conclusions/verdicts, 45, 123, 283, 285, 304–12, 314, 417, 532–33 national authorities, 34, 81, 88, 397, 449 national security, 150, 152–53, 252–53, 268–69, 274–75, 475–77, 481, 483 interests of, 70, 75–76, 249, 251–52, 273–74, 280, 475

natural causes, 25–28, 241–43, 287–88, 294, 298, 337, 350–53, 355–57 deaths by, 22–25, 55, 230, 288, 294, 350, 352–53, 355–56 natural justice, 41, 220–22, 274, 280, 331 necessity absolute, 441 medical, 22 test of, 96, 101, 193 urgent, 362 negative obligation, 77, 95, 98, 398 neglect, 24–25, 230–31, 297–304, 337–38, 349–51, 415–16, 524–28, 530–33 gross, 24, 164, 298, 304 meaning, 414, 531 rider, 300–301, 414 systemic, 50, 107, 343, 415, 424 verdict/finding of, 25–26, 43, 233, 298, 300, 302, 351, 353 negligence, 163, 229, 231, 255, 303–4, 340–42, 374, 377–79 clinical, 53, 338 gross, see gross negligence individual, 32, 232, 346 law of, 297–98, 491–92 medical, 50–51, 162–63, 229, 231, 338, 340–43, 347–48, 350 alleged, 341–42, 377 ordinary, 133, 337, 377 negligent co-ordination, 133, 337, 349, 377–79 negligent errors, 134, 454, 465 new evidence, 35, 53, 68, 100, 167, 238, 242, 537–38 next of kin, 55–56, 101–3, 125, 132, 140, 174, 186, 276 non-disclosure, 102, 220–21, 223, 269, 271, 438, 496 Northern Ireland Human Rights Commission, 146–47 notification, 12, 16–17, 139–40, 215, 276, 327–28, 493–95 nurses, 154, 167, 184, 233, 243, 246, 374, 414–15 nursing homes, 236, 357, 398 oath, 151, 153, 161, 169, 213, 273, 275, 340 objective analysis, 102–4, 412 objective assessment, 259, 384 obligations, 81–83, 88–90, 100–104, 339–40, 342–43, 347–49, 373–74, 417–19 general, 80–81, 83, 85, 373–74, 378, 396, 445 negative, 77, 95, 98, 398 operational, 84, 374, 445 positive, 79–81, 93–95, 341–42, 377–78, 397–99, 401–3, 469, 471–72 procedural, 29–30, 98–102, 104–5, 107–14, 116–18, 122–29, 341–42, 375–76 procedural/substantive, 254–56, 259, 261–62 state, 33, 80, 94, 329, 372, 377, 384, 453 substantive, 79, 83, 98, 112, 114, 175, 416–17, 463–64 unrealistic, 135, 455, 473 occupational risks, ordinary, 134, 454, 470 offences, 19, 138–39, 150–52, 212–13, 292, 366–67, 490, 497 criminal, 102, 121, 266, 291, 295, 313, 439–40, 497

670 Index disciplinary, 433, 457 service, 19, 41, 138–39, 286, 327, 433 official investigations, 29, 108, 115, 132, 416 effective, 29, 75, 100–101, 103–4, 106, 114, 243, 339 Ombudsman, 422 omissions, 124, 126–27, 203–4, 366, 406–7, 421, 426, 428 onerous duties, 154, 221, 228, 482 open conclusions/verdicts, 202, 204, 242, 295–96, 313, 440, 484–85, 529 open court, 73, 249, 263 open justice, 249, 263–65, 331–32, 482 openness, 219, 260, 271, 434 operation, security, 129, 473 operational choices, 86, 89, 94, 399, 401, 445, 455, 472 operational decisions, 134, 454–55, 467–68 operational duties, 77, 80, 85–86, 91–92, 130, 132, 374–75, 400 operational failures, 85, 464 operational measures, 85–86, 93–94, 399, 445, 462, 472 preventive, 81, 339, 398, 472 operational obligations, 84, 374, 445 operations, military, 135, 453, 468–71, 473 opiates, 31–32, 231, 344–45, 347, 414 opinions, 42–46, 142–44, 255–56, 304–6, 312–15, 361, 364–66, 504–5 oral evidence, 28, 111, 160, 169, 317, 325, 366, 520 oral hearings, 219, 326, 377, 520 ordinary negligence, 133, 337, 377 ordinary occupational risks, 134, 454, 470 ordinary words, 23, 91, 256, 375 Osman duty, 254–55, 450–51 Osman test, 85, 87–88, 90–92, 133, 254, 257, 259, 446–50 overdoses, 53, 92, 94, 221, 237–38, 289, 345, 349 parental responsibility, 182–83, 400 parents, 85, 91–92, 152–53, 191, 375, 399, 509, 539 participation, 2, 108, 137–38, 187, 193, 413, 418, 481 effective, 99, 185, 187, 210, 221, 419, 438 pathologists, 63–64, 162, 165, 232, 234, 241–42, 388, 394 patients, 30–31, 298–99, 344–45, 354, 359–68, 372–76, 378–80, 382–88 community, 365, 367 detained, 116, 364, 372–73, 375–76, 454, 460, 491–92 informal, 91, 125, 374–75 voluntary mental health, 125, 175–76, 189–90, 349, 373 PCOs (protective costs orders), 533–36 PDA (pre-departure accommodation), 491, 493 penalties, 78, 150, 250–51 permission, 34, 59, 66, 158, 320, 323, 326, 518–20 PFD reports, 12, 39, 79, 107, 119–20, 503–16 physical disorders, 382, 385 physical health care, 387–88, 394 PII (public interest immunity), 150, 249–71, 319, 321, 330, 475–77, 483–85, 527 applications, 268, 270 certificates, 150, 477

PIPs, see properly interested persons PIR(H)s, see pre-inquest review hearings planning, 83, 93, 96–97, 99, 154, 221, 471, 474 inadequate, 134, 464, 470–71 poisoning, 196, 319, 408, 490 police, 33–35, 80, 87, 89–95, 219–23, 299–301, 308–9, 495–98 cells, see police, custody chief officers of, 140, 143, 145, 432, 434–36 custody, 199, 405–6, 410–11, 429–30, 434, 436–37, 439, 531 inquests, 87, 90–91, 429–52 investigations, 47, 73, 105, 164, 223, 225, 246, 330 officers, 90–91, 102, 171–72, 203–4, 256–58, 410, 437–42, 447–49 armed, 259, 263, 293, 442 use of fatal force by, 162, 235 reports, 225, 430 shootings, 430–31, 452 stations, 71–72, 195, 199, 202–4, 207, 231–32, 234, 277 vehicles, 410, 437 policy, 13, 44, 139, 288, 301, 307, 418, 428 issues, 105, 307 legislative, 202–3, 428 public, 377, 454, 469, 491 political judgment, 134, 454, 469, 471 positive duties, 84, 88–89, 338, 450, 461 positive obligations, 79–81, 93–95, 341–42, 377–78, 397–99, 401–3, 469, 471–72 possession, 55, 212, 215, 233, 293, 528, 537, 539 post-mortem examinations, 16, 18, 36–37, 55, 58, 138–40, 215, 224–25 see also autopsy reports, 141, 213, 328 powers, 118–20, 148–50, 155–57, 163, 217–20, 362–67, 503–4, 513–14 coroners, 75, 79, 217, 219, 394, 507, 510, 513 of entry, search and seizure, 212 implied, 76, 280, 482 permissive, 120, 507 to recall patients, 363, 365, 367 reporting, 513–14 statutory, 56, 89, 217, 495, 517 supervisory, 120, 426, 514 to suspend or resume investigations, 18, 408 PPO (Prisons and Probation Ombudsman), 110, 164, 239, 246, 390, 405–6, 409, 422 precautions, 30, 79, 86, 310, 373, 376, 473–74, 499 appropriate, 45, 124, 306, 310, 417–18, 513 preconditions, 125, 503, 515, 538 pre-departure accommodation (PDA), 491, 493 pre-inquest disclosure, 434–36 pre-inquest hearings, 70–71, 73, 75, 200–201, 252, 274, 435, 485 pre-inquest review hearings (PIR(H)s), 12, 61, 69–76, 200–203, 205–6, 225–26, 407, 427–28 prejudice, 185, 230, 351, 435–36, 481, 496, 518, 524 preparatory work, 216 Prevention of Future Death reports, see PFD reports prevention of suicide, 120, 310, 378, 425–26, 507

Index 671 preventive operational measures, 81, 339, 398, 472 Primary Care Trust, 11 prison authorities, 83, 93–95, 105, 108, 302, 409, 462 prison death cases, 43, 190, 281, 329, 391, 508, 512, 532 prison doctors, 94–95, 166, 239, 389–90, 410, 414 prison hospitals, 155, 378, 416, 419 prison officers, 94, 120, 159–60, 166, 239, 243, 498, 507 prison service, 47, 105, 107, 110, 412–13, 416–17, 419, 425 prison service instructions, see PSIs prison service orders, see PSOs prisoners, 120, 366, 406, 408–9, 414–16, 419–20, 444, 507 prisons, 93–94, 243–46, 388–90, 405–6, 408–9, 414–16, 418–22, 424–25 suicide in, 115, 165–66, 239, 246, 390 Prisons and Probation Ombudsman, see PPO private interest, 332, 534 private life, 264, 267 privilege, 52, 151, 167, 213, 274, 315 probabilities, 175, 188, 291, 295, 297, 312–13, 530, 537–38 procedural duties, 43, 112–14, 122, 126, 130, 196, 507, 515 procedural fairness, 154, 221, 277 procedural limb of Article 2, 104, 127, 132 procedural obligations, 29–30, 98–102, 104–5, 107–14, 116–18, 122–29, 341–42, 375–76 procedural requirements, 30, 105, 109, 113–14, 116, 118, 126, 416–17 procedural/substantive obligations, 254–56, 259, 261–62 procedure and rules of evidence, 41, 227, 440 procedures effective, 99, 120, 507 improving, 305, 307 investigative, 101–3, 132, 411 production of documents, 56, 217, 478 of evidence, 149, 209 of witness statements, 171–72 prohibitions, 42–43, 45, 49, 171–72, 274, 306, 310, 314 blanket, 150, 167–68, 172 prompt response, 102–3, 118, 412 promptness, 82, 102–3, 116–17, 348, 397, 412 proof, 101, 290–91, 295, 297, 313, 317, 438, 442 burden of, 101, 261, 290–91 standard of, 291, 295, 297, 313, 317–18, 393, 438, 442 properly directed juries, 300–301 see also juries properly interested persons, 76, 143, 279, 476, 484–87 trustworthiness, 76, 279 proportionality, 89, 181, 193–94, 258, 267, 378, 399, 441 test, 264 prosecuting authorities, 16, 19, 49, 421, 467, 497 prosecution, 100, 102, 109–10, 187, 440, 442, 479–80, 496–500 malicious, 203, 428 prosecutors, 41, 110, 227, 277, 400, 500

protection effective, 82, 86–87, 397, 402, 445, 448, 460 of life, 79, 88, 132, 372, 448 protective costs orders, see PCOs protective measures, 90–91, 150, 209, 249–71, 446, 449, 476–77 PSIs (prison service instructions), 408 PSOs (prison service orders), 408–9 psychiatric evidence, 238, 532 independent, 166, 238–39, 390 psychiatric hospitals, see mental health, hospitals psychiatrists, 95, 167, 239, 256, 390–91 independent consultant, 165–66, 239, 246, 279, 389–90 psychotic episodes, 164, 388 public authority, 78, 87, 89, 195, 197, 250–51, 323–24, 395–96 acts of, 78, 250, 395 public confidence, 102–3, 110, 112, 118, 125, 172, 206, 348 public function, 491 public funding, 173–74, 177, 320, 521, 535 see also funding public hearings, 72–73, 168, 427 public importance, general, 425, 534 public inquiries, 16, 71, 109–12, 261–62, 282, 417–18, 457, 515–16 independent, 47, 105, 110, 184, 413 and inquests, 319–33 public interest, 268, 270–71, 289, 322, 324, 332–33, 484–85, 534 competing, 263, 268, 271 determination, 174, 179–80, 182 groups, 147, 520 immunity, see PII wider, 53, 179, 238 public policy, 377, 454, 469, 491 public scrutiny, 47, 99, 102–3, 106–7, 111–12, 116, 412, 425 punishment, 101, 103–4, 108–9, 116, 181, 183, 412, 521 quashing orders, 518, 522–23 questionnaires, 120, 282, 305, 307, 312, 426, 507, 515 real and immediate risk, 132, 255–57, 372, 374, 449 test, 87–88, 448 real issues, 310, 434 real risk, 85, 90, 188, 255–59, 269, 446–47, 449, 525 reasonable expedition, 98, 102–3, 117, 412 reasonable measures, 84, 86, 90, 130, 409, 446, 467 reasonable steps, 101, 103–4, 109, 112, 375, 378, 444, 464–65 reasonable suspicion, 47, 98, 114, 203, 462 recall, 363–65, 367 recommendations, 7, 44–45, 322–23, 422–24, 507, 509–10, 512–13, 515 general, 509–10 recordable conduct matter, 432–33 records, 283, 286, 295, 392, 406, 430–31, 494, 510–12 records of injury, 101, 103–4, 412

672 Index records of inquest, 283–84, 298 recurrence, 10, 45, 50, 195, 199, 201–2, 503, 513 redactions, 228, 483, 485 reforms, 2, 7–9, 11, 464 registered medical practitioners, 361, 366–68, 493 registrars of births and deaths, 12, 37 relationships, 49, 59, 62, 88, 141–42, 144, 147, 495–96 relatives, see families release of bodies, 12, 55–56 release of documents, 215 relevant documents, 151, 212–13, 226, 229, 519, 528 relevant duty of care, 490–91 relevant evidence, 64, 66, 143, 145–47, 149, 155, 159, 161 relevant facts, 56, 75, 110–11, 311, 426, 514, 531, 536 relevant material, 23, 228, 321, 331, 476, 483 relief, 24, 165, 233, 389, 517, 522–24, 529–30, 532 interim, 219, 398, 518 re-opening, of inquest/investigation 17, 309, 539–40 reports to prevent further deaths, see PFD reports representation, 102, 173–74, 177, 181, 185–87, 190, 320, 534 funded, 185–86 legal, 118, 174, 177, 181, 185, 187, 320, 534 representations, 122, 270, 282, 439, 486–87, 506, 514, 539 representatives, 75–76, 111, 142–43, 168–69, 228, 279 legal, 48, 75–76, 161, 220, 434–35, 476, 480–81, 483 reserve forces, 456 residual discretion, 118, 185, 195 responsibility, 83, 101, 103–5, 115–16, 129, 160–61, 339–41, 411–12 parental, 182–83, 400 state, 122, 124, 349, 402 responsible clinician, 363–65, 367–68, 388 restraint, 60, 63–64, 68, 86, 165–66, 239, 445, 498–99 physical, 60 restriction orders, 324–25, 332, 367–68 resumption of inquests, 16–18, 21, 31–32, 60, 68, 146, 197, 344–46 resumption of investigations, 18, 21, 197, 408 retention and release of documents, 215 review, 59, 234–35, 270–71, 349–50, 430, 506–7, 517, 540 independent, 330, 349, 430 judicial, see judicial review statutory, 521, 535, 537–40 rights, 76–78, 82–83, 137–38, 168–69, 174, 182, 188, 263–66 civil, 178, 259 and freedoms, 86, 100–101, 103, 251, 339, 411, 445, 457–58 fundamental, 87, 177–78, 448, 453 human, 77, 79, 91, 254–56, 264–66, 379–81, 395–96, 398–400 to life, 77–83, 85–87, 100–104, 114–16, 339, 396–98, 401, 409–11 risk, 32–35, 80–82, 85–95, 178–79, 254–62, 398–402, 444–51, 458–60 assessments, 304, 391, 406, 431, 444 claimed, 86, 94, 262, 399, 445, 472

of collusion, 171–72 of death, 112, 134, 454, 459, 463, 471, 504, 508 forms, 107, 303, 415, 424–25 of harm, 228, 264, 324, 365, 400, 408, 492 immediate, see immediate risk imminent, 349, 450 increased, 255, 257–58, 261, 444 to life, claimed, 86, 94, 262, 399, 445, 472 potential, 82, 397, 402, 409 significant, 91, 179, 256, 269, 375, 477, 496 road traffic incidents, 284, 295, 436–37 role and scope of inquests, 39–53, 338 safeguards, 80–81, 97–99, 101–4, 131–32, 176–77, 186–87, 385–86, 397–98 safety, 53, 199, 201–2, 361, 363–66, 368–69, 489–91, 499–500 public, 251 Scotland, 1, 45, 123, 305, 323, 363, 490, 492 screening, 94, 258 screens, 150, 153, 253, 260, 273, 275 scrutiny, 29, 97–98, 101, 203, 230, 428, 475, 482 public, 47, 99, 102–3, 106–7, 111–12, 116, 412, 425 security forces, 127, 147, 262, 470 security operations, 129, 473 Security Service, 75–76, 206, 263, 279, 475, 480, 483–84; see also intelligence services segregation, 95, 409–10 units, 94, 164, 246, 278, 416 self-defence, 111, 442 self-harm, 235, 359, 373–76, 391, 393, 405–6, 408, 424–26 policy, 164, 246 self-incrimination, 52, 167, 274, 315 self-inflicted death, 68, 130, 416 self-neglect, 45, 124, 298–300, 306, 350 senior coroners, 2, 17–21, 57–58, 195–97, 202–3, 210–13, 251–52, 326–28 sensitive evidence, 279, 475, 480 sensitive information, 324, 476 sensitive material, 11, 475–78, 483 serious untoward incident (SUI), 116, 376 service deaths, 58, 453, 455–56 service law, 456 service offences, 19, 41, 138–39, 286, 327, 433 service personnel, 10, 57, 453, 456, 460, 464 service police forces, 196, 406–7, 428 shoelaces, 164, 278, 302–3 shootings, 96–97, 99–100, 112, 117, 429, 436, 445, 449 police, 430–31, 452 short-form conclusions/verdicts, 44, 123, 239, 284–85, 287, 304–5, 309, 417 shotguns, 244–45, 278, 429, 440, 442 signatures, 362 significant benefits, 174, 179, 182 significant failures, 120, 426, 514 significant risk, 91, 179, 256, 269, 375, 477, 496 sisters, 70, 125, 138, 141–42, 200, 206, 232, 266 soldiers, 96–97, 112–14, 117, 124, 129, 259–62, 461–63, 465–66 solicitors, 28, 145, 154, 158, 162–63, 180, 190, 510

Index 673 sons, 65, 147, 199, 290–92, 338–40, 419–21, 457, 460 sources of coronial law and guidance, 7–14 staff, 9, 59, 89, 94, 363, 374, 376, 378 standard authorisations, 370–71 standard of proof, 291, 295, 297, 313, 317–18, 393, 438, 442 standard scale, 151, 213 state agents, 99, 101, 103, 105, 114, 122, 343, 411 state custody, 47, 55, 130–31, 173, 175, 381 state detention, 17–18, 22, 130–32, 195–97, 380–81, 383, 386, 405–7 definition, 22, 384 state duties, 47, 106, 115, 175, 339, 401, 413, 453 state obligations, 33, 80, 94, 329, 372, 377, 384, 453 state responsibility, 122, 124, 349, 402 statements of principle, 77, 172, 260 written, 160, 211, 220, 243, 281, 325, 439 statutory duties, 43, 49, 86, 270, 332 statutory functions, 180, 476, 491, 530 statutory inquiries, 329–31 statutory powers, 56, 89, 217, 495, 517 statutory review, 521, 535, 537–40 step-fathers, 73, 226 Strasbourg Court, see ECtHR striking out, 51 subjective fears, 255, 261 submissions, 71–73, 147–48, 158, 162–63, 166–69, 274, 280–82, 515 subscription databases, 14 substantive duties, 79, 84, 112–13, 176, 349 substantive hearings, 377, 520 substantive obligations, 79, 83, 98, 112, 114, 175, 416–17, 463–64 sufficiency evidential, 313, 315 of inquiry, 53, 154, 167, 238, 391 SUI (serious untoward incident), 116, 376 suicidal intent, 378 suicidal tendencies, 94–95, 302, 410 suicide, 91–95, 295–98, 313, 372–78, 420–22, 424–26, 443–44, 460–62 act of, 299 prevention, 120, 310, 378, 425–26, 507 in prison, 115, 165–66, 239, 246, 390 risk, 256, 303, 306, 373–74, 376, 378, 443–44, 461 real and immediate, 132, 372, 374, 378 summary conviction, 151, 213, 366 summing up, 41, 68, 159–60, 193–94, 198, 439–40, 525–26, 530 summonses, witness, 170, 218, 268, 270 supervision, 42, 82, 116, 373, 420, 425, 429, 432 supervisory body, 370 Supreme Court, 47, 84, 114, 266, 375–76, 379, 461–62, 467–68 suspension, 16–20, 35, 237, 327, 394, 408, 497 suspicion, 106, 111, 114, 118, 202–3, 239, 241, 342 reasonable, 47, 98, 114, 203, 462 systemic duties, 77, 85–86, 95, 132, 176, 372

systemic failures, 47–50, 87, 201–2, 234–35, 388–90, 448, 461–62, 466–67 systemic issues, 309, 347, 387 systemic neglect, 50, 107, 343, 415, 424 terrorist attacks, 75, 96–97, 200, 258, 266, 470, 476 threats, 33–34, 79, 81, 95, 257, 403, 441–42, 448–51 immediate, 89, 94, 261, 330 imminent, 441–42 tolerance of unlawful acts, 102–3, 110, 112, 118, 126, 412 toxicology reports, 74, 224, 226 training, 85, 89, 120, 455–56, 459, 462, 466, 507–8 transfer, 12, 89, 366–67, 398–99, 406, 436, 456 of investigations, 12 transparency, 9, 481 treasure trove, 14, 57 triage, 50–51, 163, 343–44, 347 triggering events, 126–28 ulterior or collateral purpose, 228–29 undue delay, 169–70, 517, 524 unexpected death, 25–26, 237, 294, 337, 350, 352–53, 357 unexpectedness, 25–26, 230, 294, 353, 357 unlawful acts, 102–3, 110, 112, 118, 126, 291, 301, 459 unlawful killing, 48–50, 286–88, 290–94, 315–18, 438–42, 497–99, 511, 531–32 alleged, 101, 103, 411 unlawful violence, 78, 95, 97, 250, 474 unnatural death, 17–18, 22–24, 26–30, 58, 337–38, 350, 352, 356–58 unpredictability, 86, 94, 401, 445, 472 unrealistic obligations, 135, 455, 473 validity, 198, 206, 212, 219, 510 vehicles, 48, 51, 66, 200, 436, 491–93 armoured, 84, 467 video links, 152, 187, 253, 273–75, 542 violence, 34, 93, 95, 292, 339, 406, 410, 450–51 unlawful, 78, 95, 97, 250, 474 violent deaths, 99, 112, 115, 176, 296 voluntary mental health patients, 125, 175–76, 189–90, 349, 373 vulnerable persons, 66, 461 vulnerable positions, 115, 409, 411, 462 war, 112, 128 see also military personnel civilians in, 329, 453–74 warrants, interception, 478–79 welfare, personal, 369 wider public interest, 53, 179, 238 widows, 50, 128, 142, 154, 163, 235, 277, 534–35 witness evidence, 99, 150, 154, 193, 209, 221, 251, 387–88 witness list, 74, 149, 154, 220, 226, 528

674 Index witness statements, 67–68, 146, 155, 159, 223–24, 495, 528, 536 production, 171–72 witness summonses, 170, 218, 268, 270 witnesses, 62–65, 110–11, 149–72, 216–21, 225–26, 253–66, 273–79, 324–26 calling, 64, 154, 159 child, 152–53, 253, 275 civilian, 100 conferring by, 171–72 examination, 76, 153, 220, 273, 276, 481

medical, 64, 161, 184, 240 particular, 228, 230, 389 relevant, 29, 68, 159–60, 262, 281, 427 workplace, deaths, 247, 489–500 work-related deaths, 489, 493, 495 Work-Related Deaths Protocol (WRDP), 495 written evidence, 68, 72, 150, 155, 158, 214–15, 518, 520 young offender institutions, 46, 105, 307, 312, 412, 418, 425, 492