On 5th December 2017, the Divisional Court gave judgment in Power v HM Senior Coroner for Inner London  EWHC 3117 (Admin), directing that an inquest held in 1998 into a road traffic accident following a police chase had been insufficient and a fresh inquest needed to be held.
On 17th August 1997 at about 10:45 Mr Onese Power was driving a Kawasaki motorbike along Camden Road, London NW1. He was doing about 60 mph, at double the speed limit. He was observed by two police officers, who gave chase over about three miles. During the chase, the deceased’s motorcycle left the carriageway and struck a bollard in the central reservation at a left hand bend. He sustained fatal injuries.
The claimant, Mrs Ann Power, was the deceased’s widow and mother to their three sons. She contended that the central issue in the case was whether there was contact between the police car and the motorbike prior to the collision with the bollard. In contrast, the police officers maintained that there had been no contact, as they had been safely behind the motorcycle when it lost control and crashed.
An inquest was held at St Pancras Coroners’ Court on 18th February 1998. The claimant was not legally represented. The jury returned an open verdict.
In March 2017 the claimant issued proceedings pursuant to section 13 of the Coroners Act 1988, seeking an order that the inquest be quashed and a fresh one held. This was based on three grounds:
- Irregularity of proceedings: The claimant did not receive disclosure of witness statements prior to the inquest and neither the claimant nor the jury were aware that the two police officers had given identical statements five days following the accident. In addition, a relevant witness had been unable to attend due to ill health.
- Insufficiency of inquiry: There were failures to undertake proper tests to replicate the tyre marks of the police car or examine whether it suffered damage that was consistent with contact with the deceased’s motorbike.
- New evidence has become available which was not known at the time of the original inquest.
The Defendant took a neutral stance, as did the two interested parties, the Metropolitan Police Commissioner and one of the officers who had been involved in the accident.
Section 13 of the Coroners Act 1988 provides as follows:
(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) […]; 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.
The court considered the case law in some detail and found a generally applicable principle that the test of “necessary or desirable in the interests of justice” would be likely to be met where there was a reasonable possibility that a fresh inquest could lead to a different conclusion, but that this was not a necessary prerequisite if there were serious deficiencies which needed to be corrected (paras 8-13).
Irregularity of proceedings
There were alleged irregularities in relation to the evidence of the police officers and also the failure to adjourn to enable the attendance of independent witness.
There were two officers involved in the car chase. The first made a statement on the day of the accident. Five days later, both officers gave statements. These two statements were identical in substance. Importantly, the police refused to disclose the statements to the claimant prior to the inquest. This meant that neither the claimant nor the jury were aware that the statements were identical and neither officer was asked questions about the similarities. The coroner (who would have seen the statements) failed to ask questions at the inquest about why they were so similar.
The claimant argued that if she had been legally represented in 1998 it was inconceivable that her request for disclosure in advance would have been refused. In any event, her advocate would have been able to receive the statements during the inquest, as the officers had refreshed their memories from the statements when they gave evidence. This would have enabled the officers’ credibility to be examined properly.
The second irregularity arose from the fact that an independent witness who had seen the accident and given two statements did not attend to give evidence and the coroner did not consider adjourning to enable her attendance on another day.
The claimant’s arguments were upheld. The court considered that “there were irregularities in the proceedings, the result of which was to deprive the claimant of an informed opportunity to question each police officer as to his account of the pursuit and the collision and to elicit in oral form the evidence of [the independent witness]”.
Insufficiency of inquiry and new evidence
A police road traffic accident investigator provided a statement to the inquest in which he analysed the accident skid marks and damage to the police car. As he was on long-term sick leave at the time of the hearing, he did not attend, but evidence was given instead by the officer who had assisted him in the investigation. Their view was that the marks on the police vehicle did not represent contact with the deceased’s motorbike. They also considered that there were no tracks on the road that could have been made by the police car. However, they had not done forensic tests or taken any photographs of the damage to the car and the skid mark tests they undertook were carried out with a police car travelling at 30-40 mph, which was much slower than the speed of the car during the accident.
Further evidence was given at the inquest by a member of the Forensic Science Services Metropolitan Laboratory, who stated that the road traffic report’s estimate of the motorcycle’s speed of 73 mph was conservative and that the mark on the road made by the motorcycle was a braking mark.
Following the inquest, a report was undertaken in April 1999 by an expert in road traffic analysis which called these conclusions into question. The new report considered that the police car had attempted to overtake the motorbike extremely close on its nearside, denying the deceased room to lean into the bend. As he tried to take the bend, his handlebar came into contact with the police car. He braked heavily, but ran wide and drove over the kerb into the bollard. Meanwhile, the police car swerved and braked to a stop, leaving skid marks in the process. These conclusions were completely different from the evidence heard at the inquest.
Furthermore, as a result of unrelated matters, in 2004 the CPS carried out a review of the evidence given by the member of Forensic Science Services, casting doubt on this evidence and noting that the reasoning had been very brief. The author of report concluded by stating “I am not surprised the family of the deceased feel unhappy with some aspects of this investigation”. However, the family were not informed of the existence of the CPS report or what it said until 2015.
The court held that the two subsequent reports cast doubt on the evidence regarding the fundamental issues of how the accident occurred and whether the original police investigation and forensic testing had been adequate. The claimant’s contentions on the second and third grounds were therefore upheld.
A fresh inquest
The police car involved in the accident was stolen in 1998 and the deceased’s motorbike had been exported in 2009, so neither remained available for further forensic testing. The location of the independent witness was unknown, so it was not clear whether she could be called to give evidence at a fresh inquest. In general, the fact that almost 20 years had passed was considered likely to have affected the memories of the other witnesses.
Nevertheless, the Divisional Court considered that “the significant deficiencies in the original process provide a powerful weight to set against the factors resulting from the lapse of time”. The jury at a fresh inquest would be able to come to its conclusion following “properly informed questioning of relevant witnesses, objective and independent assessment of the forensic testing and the original police investigation”. As such, the balance was “decisively” in favour of a new inquest. The court stated that it would be “open to a new jury to return a narrative verdict which, it is to be hoped, would bring a measure of closure for the claimant, who for twenty years has fought tenaciously on behalf of her husband”. The original inquest was quashed and a fresh one was ordered.
The fact that Mrs Power had to wait for almost 20 years for a proper inquest to be ordered is deeply unsatisfactory. Furthermore, this inquest will have to be convened without adequate forensic evidence from the vehicles involved and the memories of the people giving evidence will be far less clear. It is hoped that a measure of justice can still be done here, but there is a further question of how many other inadequate inquests will remain uncorrected. This is disturbing.
This case also demonstrates the importance of families being properly represented. The coronial system is confusing and intimidating to a non-professional, particularly when they are also trying to grapple with their feelings about losing a loved one. It is evident from this case that appearing in person can put a family at a significant disadvantage. Without legal representation, there is concern that this sort of injustice could happen again.
Jonathan Metzer is commissioning editor of the UK Human Rights Blog and a barrister at One Crown Office Row.