Case Law Summaries

Inquest Representation Service

Legal Aid:

Legal Services Commission v Humberstone (Lord Chancellor intervening) [2010] EWCA civ 1479  Read the full report.The deceased died after receiving medical treatment for an asthma attack from the ambulance service. His mother brought successful judicial review proceedings against the refusal of the LSC to grant funding for full legal representation for the family at the inquest. The LSC lost on appeal. The Court of Appeal held: The enhanced procedural duty of Art 2 ECHR arose because of the much narrower range of circumstances where there was an arguable case of breach by the state (here the ambulance service) of the Art 2 substantive duty to protect the life of those in its direct care. In the context of allegations against hospital authorities the narrow duty only arose where the allegations were of systemic failure by the state and did not arise where the allegations were only of individual negligence. Save for extremely unusual cases funding for representation would be provided only in the circumstances where the law required it to be provided- where Art 2 obliged the state to conduct an effective investigation into the circumstances of a death and the representation was likely to be necessary to enable the deceased’s close family to play an effective part in that investigation. The Court of Appeal made adverse comments on other aspects of the Lord Chancellor’s funding guidance.

Practice and Procedure:

R (Hair) v HM Coroner for Staffordshire (South) [2010] EWHC 2580 Admin  Read  the full report As part of an application for judicial review seeking to quash an inquest verdict it was argued that Rule 40 of the Coroner’s Rules 1984, which prevents any person addressing the Coroner or Jury on the facts, prevented the jury reaching a proper conclusion on central issues of fact and was incompatible with Article 2 ECHR. This was rejected by the judge “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.” 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.

R (Lewis) v HM Coroner for Shropshire  [2009] EWCA Civ 1403 Read the full report. The Court of Appeal held that a coroner is not required to leave to a jury questions or findings unless there is evidence on which the jury could conclude that they were probably causally relevant to the death in question. [/box]

R (P) v HM Coroner for Avon [2009] EWCA Civ 1367  Read the full report. In this Court of Appeal case it was determined that a short form and narrative verdict can be combined. On the facts of the case, short form verdicts were insufficient so the jury had to be given the opportunity to return a narrative verdict
R(de Menezes) v HM Assistant Deputy Coroner for Inner South London [2008] EWHC 3356 Admin Read the full report  This was the case involving the police shooting of Mr de Menezes at Stockwell tube station.  The family of the deceased sought to challenge the fact coroner refused to put certain questions to the jury. For example “Have you identified any other factor which you consider made more than the minimal causal contribution to the death of Mr D? If so, what are they?” This challenge was rejected. It was held that the existing questions were sufficient to enable the jury to answer the who, how, when and where questions. It was a matter for the coroner’s discretion how best in the particular case to elicit the jury’s conclusion on the central issue or issues. There was nothing in the coroner’s approach that was Wednesbury unreasonable. Had the questions been asked there was a risk of infringing the statutory rules 36(2) and 42 by appearing to determine civil or criminal liability. The questions created a risk of the jury making contradictory findings.
Touche, R (on the application of) v HM Coroner For Inner London North [2001] EWCA Civ 383 Read full report Mrs Touche gave birth to twins then subsequently died of a brain haemorrhage due to increased blood pressure which the hospital had failed to adequately monitor. The coroner had formed the conclusion that the death had occurred from natural causes and refused to hold an inquest. This judicial review claim went to the Court of Appeal. Held: It was for the coroner to decide whether or not a death was unnatural. That is not challengeable unless it was Wednesbury unreasonable or involved a self-misdirection on the law.   An inquest should be held whenever a death is wholly unexpected and there are reasonable grounds for suspecting that it resulted from culpable human failure that could turn a natural death into an unnatural one.
Brown v HM Coroner for Norfolk [2014] EWHC 187 (Admin) read judgment

The Chief Coroner sat as a judge in this case with Pitchford LJ. The bereaved family were dissatisfied with inquest process and in particular how the pre-inquest review had been conducted. The application to have the findings of the original inquest quashed and an order for a new inquest was granted. In paragraphs 38-45 of the judgment very useful guidance was given by the Chief Coroner about the approach to be taken at pre-inquest review hearings.  There were other observations on other areas of good practice that a coroner should adopt such as not giving the impression of bias or favouritism in dealing with interested persons or appearing to be too familiar or close to an interested person such as the police in letters or emails.

R (on the application of The Commissioners for HMRC) v HM Coroner for the City of Liverpool and others EWHC [2014] 1586 (Admin) Read the full report  HMRC had a claim for judicial review dismissed. It had applied seeking quashing orders against Notices issued by the coroner pursuant to Schd 5 Coroners and Justice Act 2009. The Notices required HMRC to provide an occupational health history relating to the deceased because the coroner wished to investigate whether his death was as a result of Industrial Disease.  It was held that Schd 5 binds the Crown by necessary implication. Therefore HMRC was bound to comply with the Notices.

R (Fullick) v HM Senior Coroner for Inner London North [2015] EWHC 3522 (Admin) A vulnerable witness at a police station had stopped breathing whilst left unattended in an interview room. She died later after an emergency admission to hospital. The High Court considered whether the coroner was required hold the inquest with a jury under Section 7(2)(b) of the 2009 Act – that there was sufficient evidence or information before the coroner to have reason to believe that the death resulted from the act or omission of a police officer … in the purported execution of the officer’s duty.  The court adopted the approach of Hickinbottom J in R (Davey) v HM Coroner for Leicester City and South Leicestershire [2014] EWHC 3982 (Admin) [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 prima facie proof is the end.  The court gave observations at paragraphs 41-46 on when it would be appropriate for a coroner to exercise the discretion under section 7(3) to summon a jury.  The court urged that in all cases where the issue of Article 2 is raised for consideration the coroner should respond with clarity.  Interested persons needs to know whether the coroner considers Article 2 arguably engaged, either as a general duty or operational duty so that they can know whether the state’s procedural duty of investigation is triggered.

R(LF) v HM Senior Coroner for Inner South London [2015] EWHC 2990 (Admin) Read the full report A person who died whilst in intensive care in hospital was not in state detention within the meaning of S7(2) (a) CJA 2009. Therefore, it was unnecessary for the coroner to empanel a jury.

Shafi v HM Coroner for East London [2015] EWHC 2106 (Admin) Read the full report  Death in custody abroad.  S7(2)(a) CJA 2009 does not make it mandatory for the coroner to sit with a jury in every case of this type. The case also considered the attendance of witnesses and the application of Rule 23 of the Coroner’s (inquest) Rules 2013 for admitting written evidence instead

Inquest into the death of Private Sean Benton 28 June 2017 Ruling by the nominated coroner HH Peter Rook QC upon whether a jury should be summoned under S7(3) CJA 2009. The coroner heard full submissions on behalf of the family and other interested persons as to whether he should exercise his discretion to sit with a jury. He concluded that the presumption under S7(1)(a) CJA 2009 in favour of him sitting alone without a jury had not been displaced.

Article 2 EHCR cases:

Rabone and Anor (Appellants) v Pennine Care Foundation Trust (Respondent) [2012] UKSC 2  Read the full report The case involved a voluntary in-patient under the Mental Health  Act who committed suicide whilst on home leave. It was found that she was at “real and immediate risk of death”.  Article 2 positive operational obligation of ECHR applied to protect mentally ill patients who were not detained under the Mental Health Act 1983 where there was a real and immediate risk of suicide.

R (Antoniou) v (1) Central and North West London NHS Foundation Trust; (2) Secretary of State for Health; (3) NHS England [2013] EWHC 3055 (Admin). Read the case report
Article 2 imposes procedural obligations on the State to investigate the circumstances of the death where a patient detained under Section 3 of the Mental Health Act 1983 takes their own life. It was held that these obligations are fulfilled by a coroner’s inquest. Unlike in prison and police station deaths, there need not be any independent investigation system prior to the inquest stage. As a matter of law the State did not have to institute the same system to investigate suicides of detained MHA patients.

R (Tainton v HM Senior Coroner for Preston and West Lancashire [2016] EWHC 1396 (Admin) Read the full report In an Article 2 inquest the coroner should have directed the jury to include in the Record of Inquest a brief narrative of the admitted shortcomings of the healthcare staff. Because causation had not been left to the jury the statement needed to be supplemented by an explanation that it could not be concluded that the shortcomings significantly shortened the deceased’s life.

Tyrell v HM Senior Coroner for County Durham and Darlington [2016] EWHC 1899 (Admin) Read the full report  Article 2 is not engaged when a death in custody was from the outset one of clearly natural causes. The cause of death had been established and then confirmed by post mortem. There was no indication of state involvement in the death of the sort that would trigger the procedural obligation under Art 2.


Challenging an Inquest:

Duffy, R (on the application of) v HM Deputy Coroner for the County of Worcestershire & Anor [2013] EWHC 1654 (Admin) (19 June 2013) Read the full report. This case challenged the adequacy of the inquiry and the safety of the inquest verdict in relation to the death of a 14 month old baby. The deputy coroner had instructed an independent expert. She refused an application to adjourn the inquest and instruct a fresh expert when it became apparent during the evidence that the expert had no recent clinical experience in relation to some of the key issues. The deputy coroner had listed the case for 6 days but decided after hearing from the pathologist and the expert that she could reach a verdict with hearing any further evidence. The High Court Judge pointed out the complexities of some of the factual issues in the case. He concluded that in refusing to adjourn the deputy coroner had made certain specific material errors, and 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.  There was a material irregularity and the verdict needed to be quashed.

R (Warren) v HM Coroner for Northamptonshire [2008] EWHC 966 Admin  Read the full report. This was a fact specific case but is a good example of where there has been an attempt to challenge a coroner’s refusal to call a particular expert witness. The coroner was due to start an Article 2 inquest into a prison death. At a PIH he had refused to agree to call as an expert the consultant psychiatrist the family were inviting him to.  The judge concluded that the coroner’s reasoning why he was not going to call that specific expert was not Wednesbury unreasonable. However, if the coroner failed to call independent psychiatric evidence and independent evidence from a GP there would be a gap in the evidence which would make the inquest non-complaint with Article 2.

R (Sutovic) v HM Coroner Northern District of Greater London [2006] EWHC 1095 (Admin)  Read the full report The coroner had returned an open verdict. The claimant had gathered fresh evidence and had brought judicial review proceedings and a case under S13 Coroners Act 1988. The claimant was seeking to rely on procedural irregularity, insufficiency of investigation and fresh evidence. This case reviewed the wording of S13 previous authorities on the circumstances when it is appropriate to quash an inquisition and order a fresh inquest. Paragraphs 53-55.  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: 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 p Homberg (1994) 158 JP 357, per Simon Brown LJ Transcript 26 January 1994, page 37) in concluding that a further inquest is necessary or desirable in the interests of justice.

Dowler v HM Coroner for North London [2009] EWHC 3300 (Admin)  Read the full report. This was an application by the doctor who had treated the deceased prior to his death to quash the inquisition and seek an inquest before a new coroner. The application for an Attorney General’s Fiat was made by the doctor because there had been a finding of neglect and she had not been called to give evidence at the inquest, had not received notification that it was taking place, and had not been represented.  The neglect finding could have seriously damaged her professional reputation. Although the coroner had conceded there should be a new inquest the divisional court carried out its own review and concluded there had not been a sufficiency of investigation at the original inquest and there was new evidence which should be considered. It was appropriate in the interests of justice to hold the inquest in front of a different coroner in view of the strong adverse comments made against the doctor by the original coroner and to avoid any actual or perceived bias if he heard the fresh inquest.

Duggan v HM Coroner for Northern District of Greater London [2010] EWHC 1263 (Admin) Read the full report This was an application by the mother of the deceased to quash the inquisition and seek an inquest before a new coroner. She was unhappy with the verdict returned by the coroner that her son had sustained fatal injuries as a result of a road traffic collision in rural Germany. The police investigation in Germany had concluded he had committed suicide by running into the road. The family were unhappy that the post mortem had not established how the fatal injuries had been sustained or the exact cause of death. Shortly before his death the deceased had made a number of highly distressed telephone calls to his mother and girlfriend asking for help. The coroner concluded he had been in a state of terror.  The family commissioned several expert’s reports to try and rebut the theory that the deceased had been hit by cars. The court was satisfied that is was necessary and desirable in the interests of justice for there to be a fresh inquest. The fresh evidence could alter the verdict, raised issues of causation and whether there could have been foul play. It was appropriate to hold the new inquest in front of a different coroner.

Jones v HM Coroner for the Southern District of Greater London and Virdi [2010] EWHC 931 (Admin) Read the full report. The deceased had died from an overdose of fentanyl.  The coroner returned an open verdict. The claim to have the inquisition set aside on the grounds of insufficiency of inquiry and fresh evidence was upheld by the Administrative Court. Apart from the fact there had been insufficient enquiry into the means by which the deceased came to die from fentanyl toxicity there was a possibility that a different verdict of accidental death might be returned. Also there was a wider public interest in a full inquiry such as whether the medical profession was aware of the possible danger to life presented by the prescription of fentanyl. Although it would be a matter for the coroner, the fresh inquest should be before a jury.

R(Mack) v HM Coroner for Birmingham [2011] EWCA civ 712  Read the full report The case involved an attempt to quash an inquest because of the refusal of the coroner to call a certain witness the family had requested in relation to a hospital death. The coroner only called one consultant who had dealt with the deceased early on but had not been the treating clinician in the period leading up to his death. It was felt this left a gap in the inquiry because there were limitations to the evidence the consultant could give based solely on the medical records especially where there were concerns about a whole series of failings in the treatment given.

Cooper, R (on the application of) v HM Coroner for North East Kent [2014] EWHC 586 (Admin) Read case report This was an application for permission for judicial review made mid inquest to challenge the decision of the Senior Coroner to leave to the jury the conclusion on the issue of unlawful killing. (This was a U-turn from an earlier indication when the inquest had to be adjourned.)  Mitting J considered the question whether the Administrative Court should as a matter of settled practice or principle entertain such an application mid- inquest.  He set out 5 reasons why in his view challenges of this kind should not in the ordinary case be entertained by the High Court.

 

Lagos,R (on the application of) v HM Coroner for the City of London [2013] EWHC 423 (Admin). Read the case report.This was an unsuccessful claim for judicial review relating to the verdict and whether the procedure adopted at the inquest had been unfair.  Although the legal framework considered was under the 1988 Act and 1984 Coroner’s Rules it has been carried through into the 2009 Act and 2013 Rules. The Claimant maintained the coroner should have returned a verdict of suicide. The coroner returned an open verdict.  This case was used as a reminder that in law a coroner has to be sure that the deceased intended to commit suicide and did in fact do so. All other possible explanations for the death had to be excluded. The coroner’s conclusion can only be challenged on the basis that no reasonable coroner could have reached this conclusion on the evidence. The Claimant complained about witnesses who were not called, the evidence given and lack of a proper opportunity to question them.  Again this case was used as a reminder that the coroner’s selection of witnesses may only be challenged if unreasonable in a Wednesbury sense. There were some concerns about the way the coroner intervened when the Claimant was asking questions it was not found to be sufficiently serious to amount to procedural unfairness. The Claimant had not objected to certain witness statements being read.

Bias and waiver

R (Shaw) v (1) HM Coroner (2) Assistant Deputy Coroner for Leicester City and South Leicestershire and others. [2013] EWHC 386 admin. Read the full report.  The claimant who was the daughter of the deceased failed in her claim for judicial review based on multiple grounds. The deceased was 86. He had been diagnosed with a defective heart valve. Instead of having open heart surgery he underwent a new procedure (TAVI). Due to complications his chest had to be opened in order to stem a bleed. He died shortly after surgery.  The coroner appointed a QC as an assistant deputy coroner to hold the inquest. This was done with a jury over 13 days. Although the case dealt with other issues such as the legality of the appointment of an assistant deputy coroner, and whether the delay of 3 ¼ years between the death and the inquest was unlawful, it is of most interest on the questions of presumed and apparent bias, and waiver [paragraphs 31-62, 100-105]  In December 2010  at the start of a pre inquest review hearing the assistant deputy coroner disclosed that he was a friend of someone who had been the CEO of the hospital trust where the death had occurred. Enquiries made during that hearing established that the CEO had ceased to work for the trust before the deceased had his TAVI operation. The assistant deputy coroner refused an application made by the claimant’s counsel to recuse himself.  There were no further attempts on behalf of the claimant to renew that application or to apply for judicial review before the inquest started.  On a comprehensive review of the authorities it was held that the facts did not give rise to any question of presumed bias. Turning to the question of apparent bias the court adopted the test from Porte v Magill [2002] AC 357 at para 103 – whether a fair minded and informed observer having considered the facts would conclude that there was a real possibility the decision maker was biased. It held there was no apparent bias in this case.  Turning to the issue of waiver, it was held that the claimant had been is possession of all the facts necessary to challenge the assistant deputy coroner’s refusal to recuse himself. Her decision not to do so amounted to an unequivocal waiver. It was observed that a decision on refusal to recuse could and should have been challenged immediately by judicial review. It was incumbent on the claimant to make the challenge before the inquest started rather than waiting and saving the point for later.

Disclosure and Public Interest Immunity:

Worcestershire County Council and Worcestershire Safeguarding Children Board v HM Coroner for the County of Worcestershire [2013] EWHC 1711 (QB) Read the case report.The Coroner applied to the High Court for permission to issue witness summonses against the LSCB in order to secure disclosure of the underlying Individual Management Reviews and Information Reports to the Serious Case Report Overview. The LCSB applied to have the summonses set aside claiming public interest immunity. Baker J held: (1) The Coroner was entitled to have disclosure of the underlying reports as well as the Overview Report; (2) The Coroner was entitled to have full disclosure so that he could decide what witnesses to call and what issues should be considered at the inquest; (3) Where there was a claim against disclosure on public interest immunity grounds it was necessary to balance the perceived public benefit it affords against the public benefit of disclosure; (4) The question of any further disclosure is a matter for the Coroner having taken into account any further arguments in favour of non-disclosure and subject to the supervisory jurisdiction of the court, thus maintaining sufficient safeguards to those properly seeking non-disclosure.

Leaving verdicts to a jury:

R (Secretary of State for Justice) v HM Deputy Coroner of Eastern District of West Yorkshire [2012] EWHC 1634 (Admin) Read the judgment. This expanded the Galbraith test. In deciding whether or not to leave a particular verdict to a jury coroner’s should apply a dual test: 1) Is there evidence on which a jury properly directed could properly convict; and 2) If so, would it be safe for the jury to convict on the evidence before it?

Lawful Killing

R (Duggan) v HM Assistant Deputy Coroner of the Northern District of Greater London and others EWHC [2014] 3343 (admin) Read the full report  This was a judgment of a 3 strong court including the President of the QBD, and the Chief Coroner. It concerned the inquest into the death of Michael Duggan who was shot by a police officer. The jury returned a verdict of lawful killing. The claim for judicial review sought to challenge that verdict on several grounds. Permission had previously been refused on 2 of the grounds. On re-consideration, the court also refused to consider those grounds.  On ground 1 it was held it was open to the jury to conclude lawful killing.  Ground 2 concerned the nature of the test for lawful killing. In considering this ground the court carried out a comprehensive analysis of the development of 4 aspects of the material law; the law of self-defence in England and Wales; the meaning of unlawful killing and lawful killing at the conclusion of an inquest; the content of the Article 2 procedural obligation; and Strasbourg jurisprudence and justifiable killing. It was held that the 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. It signifies the jury’s conclusion not only that they are not sure a homicide was committed but also a conclusion that it probably was not. It says nothing about civil liability. In relation to ground 3 it was held that based on the direction the coroner gave the jury could not have been confused whether or not Mr Duggan’s death resulted from a lawful killing.  The court went on to stress what conclusions of lawful killing do not mean. They do not relieve from liability in tort.  It was not the purpose of the inquest to determine civil liability. In civil proceedings the balance of probability and the ingredients are different and may provide a different answer to the very difficult question posed by the case.

Decision making and expedited decisions

R(1) Adath Yisroal Burial Society (2) Ita Cynerman v HM Senior Coroner for Inner North London (Defendant ) and Chief Coroner for England and Wales (Interested Party) [2018] EWHC 969 (admin) Read the full report This was a claim for judicial review to challenge the lawfulness of a policy adopted by the senior coroner on 30/10/2017 to the effect that “No death will be prioritised in any way over any other because of the religion of the deceased or family either by the coroner’s officers or coroners.” This resulted in Muslim and Jewish families facing delays in the burials of family members. It was referred to as a “cab rank policy”. The High Court considered the issues of: Fettering of Discretion, Irrationality, breaches of Articles 9 and 14 of the ECHR, Indirect Discrimination under the Equality Act 2010 and Public Sector Equality Duty. Judicial Review was granted on all grounds except Public Sector Equality Duty. Paragraph 160 of the judgment pulls together and summarises all the legal threads of the judgment. On 17 May 2018, as a result of the judgment the Chief Coroner published new Guidance 28: Report of death to the Coroner: Decision Making and Expedited Decisions.

Standard of Proof for suicide conclusion

Maughan, R v Senior Coroner for Oxfordshire [2018] EWHC 1955 (Admin) ) Read the full report. This was a claim for judicial review after the jury in a prison death case returned a narrative conclusion of suicide applying the civil standard of proof, balance of probabilities. Legatt LJ and Nicol J carried out a comprehensive review of the case law before ruling on the standard of proof to be applied in order to reach a conclusion of suicide. They decided that the true position is that the standard of proof required for a conclusion of suicide, whether recorded in short form or as a narrative statement is on the balance of probabilities bearing in mind that such a conclusion should only be reached if there is sufficient evidence to justify it.

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