A guide to recent changes in the procedure and the law of inquests

A presentation by Tim Green regarding the Coroner’s Court. This was a short lecture given by Tim before the panel discussion of 3 events which HSLA hosted in Birmingham, Manchester and London regarding The Duty of Candour.

  • 6 of the important cases heard in the Court of Appeal or Administrative
    Court in the last year.
  • Objective: to provide a concise and accessible summary of the relevant
    principles derived from these key cases for busy practitioners.

R (on the Application of Maughan) v HM Senior Coroner for Oxfordshire [2019] EWCQ Civ 8091

The standard of proof for a conclusion of suicide is on the balance of probabilities

Facts:
• Deceased was detained in custody at HMP Bullingdon and was found hanging in his cell
in July 2016.
• He appeared to have made a ligature with which he hanged himself.
• The Roman Catholic family considered the question of a suicide, or not, to be
particularly serious.

Judgement:
The Court was clear that there was no room for any intermediate standard of proof; it is either the civil standard or the criminal standard:
“As I have stated, an inquest is not a criminal proceeding. Nor is it a civil proceeding. But, that said, the clear conclusion at least has to be that, surely, no “intermediate” standard of proof can apply with regard to inquests. Accordingly, either it is the civil standard both for short form and for narrative conclusions; or it is the criminal standard both for short form and for narrative conclusions; or as the Coroner here proceeded it is the criminal standard for short form conclusions and the civil standard for narrative conclusions. (No one could sensibly argue, or did argue before us, for a civil standard for the short form conclusion and a
criminal standard for the narrative conclusion.)” [ § 50].

The Court held that it should not; there should be one standard for a conclusion of suicide whether reached by way of short form or narrative:

“71. The central point is then, in my view, that there seems a very real inconsistency in adopting a criminal standard of proof for a short form conclusion but a civil standard of proof in a narrative conclusion. Where is the logic and sense in that hybrid approach? I cannot discern any. Moreover, not only would it create difficulties for juries in having differing standards of proof relating to various findings within its conclusions, depending on their nature, but also it could tend to create difficulties or confusion in terms of public perception of the outcome.”

Unlawful Killing?

• Court considered that it was incumbent upon it to comment on the standard applicable to cases of unlawful killing.
• The Court held that Coroners should “in cases where unlawful killing arises as an issue, continue to instruct juries by reference to the criminal standard of proof in the way that they currently do .” ($95 )
• In reaching this decision the Court made clear that it did not necessarily agree with this position but that, on this issue, it was bound by authority, namely McCurbin:
“I should not be taken as necessarily agreeing myself that this ought to be the outcome. I can see a very powerful case for saying that the standard of proof applicable to unlawful killing cases in inquests should also be the civil standard (as for all other available conclusions), both as a matter of principle and as a matter of practicality. But that, as I see it and in particular in the light of the decision in McCurbin , is not the current state of the law: a state of the law which, in fairness, cannot be said to be altogether devoid of supporting arguments .” ($94)

2. R ((1) Adath Yisroal Buriel Society (2) Ita Cymerman ) HM Senior Coroner for Inner North London (Defendant) & Chief Coroner of England and Wales (Interested Party) [2018] EWHC 969

When considering burial policy and the release of the deceased for burial, the Coroner has a wide discretion

Facts:
• Coroner refused to prioritise burials/release of bodies on the basis of the religion of the
deceased/family.
• Claim for judicial review by a charity responsible for managing burials of a large proportion of the orthodox Jewish community in North London and a 79 year old orthodox Jewish woman.
• There was a significant body of evidence before the court that for faith groups including Jews and Muslims it was very important that a funeral should take place as soon as possible.

Judgement:
“Like cases should be treated alike and different cases treated differently. This is perhaps the most fundamental principle of justice [91]’.
• A Coroner is entitled to prioritise cases, for religious or other reasons, even where the consequence of prioritising one or some cases may be that other cases will have to wait longer for a decision.
• Whether to accord one case priority over another or others is for the Coroner to determine
• It would be wrong for a Coroner to impose a rule of automatic priority for cases where there are religious reasons for seeking expedition.

3. R (on the application of Gerard Joseph Parkinson) v HM Senior Coroner for Kent (Defendant) and Dartford and Gravesham NHS Trust (Interested Party) and Sameer Hijazi (Interested Party ) [2018] EWHC 1501

A2 ECHR and its application to hospital treatment and care

Q: When is the threshold reached to impose a duty on the state to carry out an effective, independent, public investigation into the death following a death in hospital (the ‘duty of enhanced investigation.’

A: Rarely and only where there is reason to believe that there may have been a breach which is a “systemic failure”, in contrast to an “ordinary” case of medical negligence.

Facts:
JR challenge to the coroner’s decision not to hold an Article 2 inquest into the death of a 91 year old woman who was brought to A&E in what the attending doctor felt was an already dying state. Her son (the Claimant) believed that more should have been done to try and save her.

Judgement:
The court approved of the ‘the latest, very recent and authoritative summary of the applicable in Fernandes v Portugal ( App. no. 56080/13) Judgment of 19 December 2017 and cautioned Coroners to be wary of cases where allegations of ‘ individual negligence’ are ‘dressed up as systemic
• The primary substantive positive obligation is to have in place a regulatory framework compelling
hospitals, whether private or public, to adopt appropriate measures for the protection of patients’ lives;
• The primary procedural obligation is to have a system of law in place, whether criminal or civil, by which individual failures can be the subject of an appropriate remedy. In the law of England and Wales that is achieved by having a criminal and civil justice system;
• The enhanced duty of investigation, which falls upon the state itself to initiate an effective and independent investigation, will only arise in medical cases in limited  circumstances, where there is an arguable breach of the state’s own substantive obligations under A2.
• Thus where the state has made adequate provision for securing high professional standards among health professionals/protection of the life of patients then an individual error/ negligent coordination among health professionals in the treatment of a particular patient does not engage A2
BUT
• There may be exceptional cases which go beyond mere error or medical negligence, where the failure will result from a dysfunction in the hospital’s services and this will be a structural issue linked to the deficiencies in the regulatory framework and does engage A2.

4. R (Maguire) v Assistant Coroner West Yorkshire [2018] EWCA Civ 6 (17 January

The broad discretion Coroners enjoy whether or not to call witnesses to give oral evidence.

Facts:
• Assistant Coroner had declined to hear oral evidence from nine children who had contact with the killer of their teacher on the morning of her death, and who had heard his threats to kill the teacher and/or knew he was carrying a knife.
• Child witness statements read then read on decision of the Coroner.

Judgement:
CoA endorsed the Coroner’s approach of balancing the value of the evidence V the potential harm to the pupils of giving evidence. Burnett CJ:
‘Since there were no rules or policies on which to question the pupils, all that would be left would be to explore further the individual child’s thinking in connection with the decisions he or she made that morning when confronted with knowledge of what [the assailant] was saying and doing. That was not within the scope of the inquest as identified by the coroner’
§ 25].
In my judgment, the decision not to call these witnesses was plainly rational. The absence of further evidence from them would do nothing to imperil the statutory function of the inquest or of a full, fair and fearless investigation, see Sir Thomas Bingham MR in R v North Humberside Coroner ex parte Jamieson in general conclusion 14 at page 26C’ [ § 26].

5. R (Hambleton and others) v Coroner for the Birmingham Inquests (1974) [2018] EWHC 56 (Admin), 26 January 2018

Scope of inquest and finding facts which touch upon criminal or civil liability

• Child witness statements read then read on decision of the Coroner.
• In determining the scope of an A 2 inquest, Coroners must ask themselves whether the particular factual issue at stake is sufficiently closely connected to the deaths to form part of the circumstances of the death.
• The Coroner should decide whether the factual issue is too remote from the circumstances of the death This is not a matter of causation as it is understood in contract or tort, it is a more flexible test.
• If the factual issue does form part of the circumstances of the death, the Coroner is required to investigate it by CJA s 5 1 and 2

Facts:
• In 1974 two pubs in Birmingham City Centre were bombed, killing 21 people and injuring 220
• The subsequent police investigation by West Midlands Police led to the conviction of the
‘Birmingham Six’, widely seen as a miscarriage of justice Inquests were opened in 1974 but
adjourned pending the criminal proceedings.
• Coroner decided that they would be Article 2 inquests, but also decided that he would not
investigate who was responsible for the bombings​.

Judgement
• The fact that the jury was precluded by s 10 2 )( of the 2009 Act from making a determination which was framed in a way which determined any question of criminal liability of a named person was not (without more) reasons for excluding the identification of perpetrators from the scope of the inquests § 112
• Where the state is alleged to be involved in a homicide, compliance with A 2 will require an investigation initiated by the state that is ( independent,independent,( effective ( prompt and proceeds with reasonable expedition, (is subject to a sufficient degree of public scrutiny to ensure accountability and (involves the next of kin to an appropriate extent Jordan v Lord Chancellor 2007 NI 214 at § 106 109
• Scope is at its heart a consideration of fairness fairness to those who have a profound and abiding interest as relatives of the deceased, as well as to those who may be implicated in a homicide. The coroner’s decision about the scope of the inquest is an exercise of judgment, rather than an exercise of discretion.

6. R( Childlow ) v Coroner for Blackpool and Hyde [2019] EWHC 581 (

• In deciding whether to leave an issue of causation to a jury, a coroner should consider
both limbs of the Galbraith Plus test Causation should be left where there is evidence
upon which the jury could properly and safely find that, on the balance of probabilities,
the event or omission had more than minimally, negligibly or trivially contributed to
death.

Facts
• Following a 999 at 23 34 the ambulance therefore arrived some 51 minutes after the original emergency call and 36 minutes after the second call at 00 10 The issue was the extent to which the delay was causative of death.

Judgement
52 2 Evidence relating to the particular deceased and the circumstances of his or her death, that may include general statistical evidence drawn from population data such as the rate of survival in a particular group.
52 3 Such general statistical evidence alone is, however, unlikely to be sufficient to establish causation of death.
52 4 In most cases, there will be other evidence as to whether the deceased probably would or would not have fallen in the group of survivors Where there is apparently credible additional evidence of causation which, if accepted, together with the general statistical evidence could properly lead the jury to find on the balance of probabilities that the event or
omission more than minimally, negligibly or trivially contributed to death then it will usually be proper and safe to leave causation to the jury.

Discussion

Coroners maintain wide discretion over the process adopted, which above all must be fair to
the families of the deceased This includes who to call to give oral evidence but the judgement must take into account factual issues in the inquiry.
Coroners have to consider the particular circumstances of the deceased and family when
considering which bodies to release Fettering this discretion = indirect discrimination.
Erosion of the principle that inquest should not decide criminal or civil liability to the extent
that it is permissible to hear evidence and make findings of fact = criminal responsibility,
provided this was not reflected in a conclusion which directly apportions “blame”.

• A 2 now less likely to be engaged in deaths arising from failures in hospital.

• Evidence going to medical causation depends upon evidence that satisfies Galbraith plus test.

• Statistical evidence that an act or omission causative is unlikely to be sufficient on its own
unless some other evidence of causation.

Tim Green and Elizabeth Tremayne,Henderson Chambers

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