Coroner’s conundrums: born alive or still-birth, and mother’s anonymity
6 May 2017
R (o.t.a T) v. HM Senior Coroner for West Yorkshire  EWCA 187 (Civ), 28 April 2017 – read judgment
A sad story of human frailty posed two difficult problems for the Coroner, and the Court of Appeal.
A 19-year old mother went into hospital, with a shoebox. In the shoebox was the 6-days dead body of her daughter. She told the hospital and the police that she had been raped, hence the shame about reporting the death. She had given birth in her bedroom at home, and she said that the baby had been cold when born.
But not all was as it seemed. Inquiries of the alleged rapist revealed that he and the mother had been in a secret sexual relationship. Mother eventually admitted that this was true and back-tracked on the rape allegation. Unsurprisingly, the death came before the Coroner; at very least, the cause of the death was unknown.
The first problem arose because of the pathologists’ opinion that there was no obvious cause of uterine death, or indeed of congenital disease. Such finding as there were (cerebral congestion) were consistent with but not probative of asphyxia, and any asphyxia might have been caused before or during delivery – or by suffocation.
Coroners’ duties arise in respect of the “body of a deceased person”. And neither a stillborn child nor a foetus is a “deceased person”. They never were a person.
This gave rise to the mother’s argument that the coroner had no jurisdiction to investigate this death, because he was not in a position to conclude before his formal investigations started that the child had probably been born alive.
On a literal reading of s.1 of the Coroner and Justice Act 2009, there is something in the point. But the CA concluded that, read in context, this could not be right. Because it would
require a coroner to determine as a preliminary issue on incomplete evidence one of the very matters he would be required to determine on full evidence at an inquest, namely whether the child was born alive
The Court looked at the statutory history of the role of coroners, and at editions of a leading textbook (Jervis) back as far as 1829. All contained precedents as to a conclusion that a child was stillborn, and this issue was to be considered as a preliminary issue at inquest – rather than before it.
In summary a
coroner can investigate the death of a baby who may have been born alive or may have been still-born without first being satisfied on balance of probability that it was born alive, so long as he suspects one of the matters set out in s.1(2) is in play [including unknown cause]. The question whether there was a death is a component of the matters which may be the subject of suspicion.
So the mother faces an inquest, which is why the second question arose.
The mother relied on Arts. 2, 3 and 8 ECHR in support of her contention that she should have anonymity and reporting restrictions should be imposed on the forthcoming inquest. She had been threatened by texts and on Facebook from members of her family, either to harm her or to be taken off to Pakistan to get married – so as to avoid shame on the wider family.
The CA seemed a bit sceptical about this evidence; all the texts had been got rid of, and her Facebook account deleted, and she had not gone to the police about it. I have to say none of this seems surprising to me.
However, the mother faced a major problem, in that investigation had already been opened by a previous coroner, in open court, which had been reported by the local paper, both in print and on-line. This tells the story, and identifies T as mother. This remains on-line and easily accessible.
There is of course power to order anonymity at inquest, but it requires cogent justification. The CA was not persuaded by the evidence on Arts 2 and 3 about the threats.
Art.8 required the usual balancing exercise between those rights and the rights of the press under Art.10 to report her name and the full story.
On this balancing exercise the CA was robustly against the mother
The conduct of the claimant was not in any sense a private matter….. The claimant was the central actor in what had happened. She had concealed a baby’s body for six days and failed to report the birth or still-birth. If the baby was born alive, there would be the further public interest in ascertaining the cause of death. In addition she had made a false allegation of rape against some innocent man which she only admitted after investigation by the police.
The issues were of particular interest and importance to the local communities. There was a significant public interest in such issues being fully open for debate. Hence, the Coroner had been right to refuse anonymity and reporting restrictions.
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