Latest Law Pod UK: the 5 Most Significant Inquest Cases Of 2018

17 December 2018 by

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2018 provided much food for thought for those practising in inquest law, with significant judgments on the burden on proof in suicide, on scope in relation to the Birmingham pub bombings, on causation in relation to medical negligence, on the relevance of non-causative findings to the record of inquest and on costs.   In the most recent episode of Law Pod UK I am joined by Jeremy Hyam QC, who provides a whistlestop tour of this year’s the most significant cases. 

Citations for cases mentioned on the podcast and links to related blog articles written by members of chambers are contained below, as is a brief analysis of R (Paul Worthington) v HM Senior Coroner for the County of Cumbria [2018] EWHC 3386 (Admin), a decision which was unfortunately handed down too late for consideration in the podcast episode. The episode is a available here.

On behalf of Rosalind English and myself, I would like to thank our producer Simon Jarvis at Whistledown Studios, everyone who contributed to the podcast so far this year and our audience for helping us reach over 100,000 listens.  In 2019 we have an exciting line up of  new episodes, including James Badenoch QC on Bolam, Guy Mansfield QC on limitation and the Mau Mau litigation, John Whitting QC on Montgomery and a special guest speaking about the soon-to-be-released Ruth Bader Ginsburg documentary ‘RBG’. We hope you keep listening. In the meantime, a very Merry Christmas.

2. Burden of Proof in Suicide

No review of inquest law in 2018 would be complete without reference to R (Maughan) v HM Senior Coroner Oxfordshire and others, in which the burden of proof in relation to a finding of suicide was examined and re-stated. You can find analysis by Owain Thomas QC, who wrote about the case for the blog here

3. Scope and the Birmingham Pub Bombings

In Coroner for the Birmingham Inquests v Hambleton & Ors [2018] EWCA Civ 2081 the Court of Appeal addressed whether as part of his investigation into the deaths of the 21 victims of the 1974 Birmingham pub bombings, the Coroner was obliged to call evidence directed at identifying those responsible for the bombings, ruling that he was not so obliged. Darragh Coffey wrote about this case for the blog, here.  1 Crown Office Row’s Peter Skelton QCMathew Hill and Gideon Barth appeared on behalf of the Coroner. 

4. Causation in Medical Negligence 

R (Parkinson) v HM Senior Coroner for Kent [2018] EWHC 1501 (Admin)considered system failure in the medical negligence context, denying any hope that this avenue remained open following the ECHR Grand Chamber decision in Lopes de Sousa Fernandes v. Portugal (App. No. 56080/13). Find the blog article written by Jeremy Hyam QC here.

5. Non-Causative Findings and the Record of Inquest

There was one decision, that unfortunately came out too late for inclusion in our podcast episode, but bears mentioning in this update. The deeply disturbing case of Poppi Worthington may be familiar to readers. Poppi was 13 months old when she died on 12 December 2012. A post mortem examination suggested that, shortly before her death, she had suffered acute injuries to her anus and rectum. 

The Family Proceedings

In a judgment handed down on 28 March 2014 following a fact-finding hearing arising out of family proceedings, Jackson J concluded that in the hours before Poppi’s death, her father perpetrated a penetrative anal assault on her, either using his penis or some other unidentified object. He found that Poppi later died from a cause which, on the evidence before him, was medically unascertained. That judgment was not published until 2016, and became subject to a Reporting Restriction Order. Unusually, a further fact-finding hearing was held before the same judge in 2015,  concerning new evidence as to the interpretation of the post mortem. The original findings were upheld.

The First and Second Inquest

An inquest was held in October 2014. The Coroner, who was given a copy of the initial, closed, fact-finding judgment, heard no evidence. The inquest was reported to have lasted 7 minutes.  He indicated that he had taken account of and adopted the factual findings made by that judgment, but said that he was unable to refer to the findings because of reporting restrictions.  The record of inquest recorded that the cause of death was “unascertained”; and the part of the record headed “How, when and where the deceased came by his or her death” was left blank.

Following much disquiet about the initial inquest, in July 2015 a new inquest was ordered on the application by the newly appointed HM Senior Coroner for Cumbria, David Roberts.  The second inquest, was held in late 2017. The Coroner found that on the night she died, Poppi had been taken from her own cot to a double bed where she was anally penetrated. This had not, however, caused or contributed to her death which, he found, had been caused by her unsafe sleeping position. The finding in relation to anal penetration was included in his review of potential conclusions and the record of inquest. 

Judicial Review Proceedings

Poppi’s father challenged the Coroner’s findings, arguing that by including the above references to anal penetration where this was non-causative and in the context of Jamiesoninquest, he had erred in failing to confine himself to ascertaining and recording ‘how’ Poppi’s death occurred as he was required to do. He had, it was submitted, trespassed into the circumstances in which it occurred, essentially treating this as a Middletoninquest. 

The Divisional Court judgment was handed down last week (Westlaw link here). Noting the length of the Coroner’s substantial review of the evidence, which ran to almost a hundred pages and which the Court described as ‘exemplary’, the Court rejected the Claimant’s submissions.

Emphasising the discretion residing in a Coroner to determine the scope of the enquiry, subject to challenge only on the usual public law grounds, the Court reiterated that it is a function of an inquest to seek out and record as many of the facts concerning the death as the public interest requires, without deducing from these facts any determination of blame.

It had been the Coroner’s view that his finding that Poppi was anally penetrated shortly before her death was an integral part of the factual matrix which formed the immediate circumstances of her death. It was the direct cause of the injuries sustained by her shortly before she died and the immediate circumstance which resulted in her unsafe sleeping environment. The Coroner considered the inclusion of this fact appropriate because the reference was factual and the person responsible (even if apparent from the evidence) was not named. 

The Court found no fault with this approach, holding that the Coroner has been both entitled and right to include it to explain the circumstances of her unsafe sleeping environment and his reasons for rejecting a conclusion of unlawful killing and accidental death. The Court commended the Coroner’s patently careful and neutral language in doing so. 

Crucially, the Court held that to set out a negative conclusion in the determination of an issue that was suggested as causative, but that did not cause death, is not proscribed by the statutory provisions. In the circumstances of a particular case, this may be appropriate or even obligatory to ensure the legal requirements for such a determination are met. In the present case, without any reference to anal penetration, the Record would “clearly be deficient”. 

Analysis

In Jamieson inquests, the question of whether non-causative findings ought to be included within the record of inquest is one that bedevils practitioners and Coroners alike. Given the statutory requirement that the record of inquest should not seek to ascribe blame, whether a record of inquest  should record a ‘failing’ or act, or make no reference at all, when this did not in any way cause or contribute to death is highly fact specific and often contentious. 

The above decision illustrates the Court’s reluctance to micromanage inquests by constraining the proper discretion of a Coroner to record the answer to ‘how’ a death was caused. A Court will, therefore, be slow to intervene to criticise “an accurate, neutral and otherwise inoffensive recital of facts which a corner considers to be relevant to “how” the death occurred even in a Jamieson inquest.”

Rejecting the suggestion that the scope in a Jamieson inquest is to be construed narrowly, the Court underlined that the question of how the deceased came by his death is clearly wider than merely finding the medical cause of death. 

Costs

The judgment concluded with some interesting comments on the matter of costs. The Court re-stated the general principles that applied, and in particular that where an inferior court or tribunal appeared in proceedings to assist the court neutrally, the established practice 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. In the present case the Coroner had stated that he proposed to take a neutral stance. The Court found, however, that he did not do so in practice. As the Coroner had succeeded, the usual costs order against the Claimant therefore applied. 

The final paragraph will be of particular interest to practitioners:

[W]e should add that we do not condone any practice of Coroners or any other form of tribunal defendant in judicial review proceedings, insofar as it exists, of stating that they are taking a neutral stance in respect of those proceedings, but then making submissions that are clearly not neutral but partisan. The tribunal must decide what course it proposes to take, neutral or not neutral, and then make submissions accordingly. If it decides on neutrality, it must not make any submissions that are less than neutral. In particular, it cannot seek to avoid the adverse consequences of being less than neutral by mere reference to Davies; and, if it seeks to do so and is unsuccessful in defending the claim, then it will run the risk of having a costs order against it in line with usual cost principles and CPR rule 44.2(2)(a).

For an illustration of the considerations that apply in a situation in which a Coroner is found to be a non-neutral and unsuccessful party, readers will recall the judgment in R (on the application of) v HM Senior Coroner for Inner North London [2018] EWHC 1286 (Admin), delivered shortly after the substantive decision concerning the cab-rank burial policy case discussed above. In that case the Court held that the Coroner had ceased to act neutrally in the proceedings, crossing the line into advocating the correctness of her policy rather than merely assisting the court. It was held, therefore, proper that she should pay the claimants’ reasonable costs from the date on which she had ceased to be neutral.  

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Law Pod UK is available for free and without ads on AudioboomiTunesPodBean, The Podcast App or wherever you get your podcasts. If you like what you hear, please do review us and send us your feedback. 

1 Crown Office Row was delighted by the continuing recognition as a Tier 1 Set in Inquests and Inquiries by Chambers and Partners and the Legal 500. We are also happy to announce that Matthew Hill was nominated as Public Law Junior of the Year at the Legal 500 Awards. Further information on the inquests that members of chambers have been involved in this year can be found here.

 

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courts secret criminal trial secret evidence secret justice Secret trials sectarianism secularism security security cameras security services security vetting Sedar Mohammed segregation Select Committee on AI self-defence self-incrimination seminar sentencing September 11 serco serious harm sermon Seroxat service outside jurisdiction set-off Sewel Convention sex abuse sex ban sex ban low IQ sex offender Sex offenders sex register sexual abuse Sexual Offences sexual orientation sexual orientation regulations SFO investigation sfo unlawfulness shaker aamer Shamima Begum sham marriage shared residence order Sharon Shoesmith shetland shipping shipwreck Shirley Chaplin shooting shoulder shrug should trees have rights SIAC sihkism Simon Singh sir alan ward Sir Nicholas Wall Sir Peter six months rule slander slaughterhouses slavery smacking small claims court small solar Smith Smith & Ors v The Ministry of Defence [2012] EWCA Civ 1365 smog smoking ban Snyder v Phelps social and economic rights social benefits social housing socialite social media social security law social welfare social workers Solicitorsfromhell website solitary confinement soma somali pirates sources South Africa south african constitution sovereignty Sovereignty clause soviet union soybean Spanish properties spare room subsidy special advocate special advocates species specific performance spending cuts spielmann squatters Standing standing rules starvation state immunity statelessness statute statutory power Statutory purpose stay of execution stem cell research stem cells stem cell therapy Stephen Gough stephen sedley stepping hill hospital Sterilisation steve macqueen Steven Neary stobart-law stop and search stop powers Stormont Assembly storms Strasborug Strasbourg Strasbourg Court strasbourg damages pirates strasbourg law Strasbourg terminology strategic environmental assessment strike strike out Strikes student loans sturgeon subsidies Sugar v BBC suicide suicide act 1961 super injunction super injunctions supermax prisons superstition Supreme Court Supreme Court Live Supreme Court of Canada Supreme Court Scotland surgery surrogacy surrogacy arrangement surveillance swine flu Syria systemic violence Take That tallinn tariff Taser Tax tax avoidance tax discrimination tchenguiz technology Telegraph telephone preference service television justice tenancy tent city termination termination of pregnancy terror asset freezing Terrorism terrorism act terrorism act 2000 terrorism legislation terrorism prosecution terrorist finance terrorist threat terry pratchett Tesla testamentary dispositions The Bike Project the Catholic church The Corner House theism The Law in These Parts therapy Theresa May the right to privacy The Stig The Sun third countries third party appeals three way case time limits time limits in human rights Tobacco tobacco cartels Top Gear tort Torture torture inquiry totally without merit TPIM TPP tracking trade trade secrets trades unions trade union congress Trade Unions transexual transsexual transsexuals travel travellers travel restrictions treason treatment treaty treaty accession trial by jury trolling TTIP TTM v London Borough of Hackney & Ors Tugendhat tumour Turkey tweeting in court Twitter twitter in court Twitter Joke Trial UK UK citizenship uk constitution UK election UK Human Rights Blog UK Human Rights Roundup UKIP UK Jewish Film Festival ukraine UK Supreme Court UK Uncut ultra orthodox jews ultra vires UN unable to vote unacceptable behaviour policy unaccompanied minors unborn child UN Convention on the Rights of the Child unelected judges unemployment unfair consultation unfair dismissal unfairness at hearing Unison Unite United Against Fascism Group United Kingdom United Nations United States United States v Windsor universal declaration of human rights universal jurisdiction Universal Periodic Review University University Fees university of east anglia University of Southampton unjust and oppressive unlawful arrest unlawful detention unpaid work schemes UN Resolution unsolicited calls UPR US aviation US Constitution use as of right US Supreme Court vaccination Valkyries variants veganism vehicle breakdown vetting and barring vicarious liability victim victim status Victoria Climbie victorian charter Vienna airport vigilantism villagisation vinton cerf violence violist visa scheme vivisection voluntary euthanasia Volunteers voter compensation voters compensation voting voting compensation vulnerable Wagner Wakefield Wales War war correspondents ward of court War Horse water utilities Watts Wayne Rooney Websites welfare of child welfare of children welfare of the child welfare state welsh bill western sahara whaling What would happen if the UK withdrew from the European Court of Human Rights whimbrel whisky Whistleblowing WHO who is JIH whole gene sequencing whole life orders whorship Wikileaked cable Wikileaks wiklleaks Wild Law wildlife Wildlife and Countryside Act will William Hague William Marbury wills wind farms wind turbine Winterbourne View witchcraft withdrawal of treatment wolves women's rights Woolas worboys Workers working time directive wrongful birth wrongful conception wrongful life WTO wuhan X AND OTHERS v. AUSTRIA - 19010/07 - HEJUD [2013] ECHR 148 X Factor XX v Secretary of State for the Home Department [2012] EWCA Civ 742 X Y and Z v UK Yemshaw Yildirim v Turkey Your freedom website YouTube yukos Yuval Noah Hariri Zakir Naik Zanu-PF Zero Hours Contracts ZH (Tanzania) v Secretary of State for the Home Department Zimbabwe Zimbabwe farm invasions ZN (Afghanistan) (FC) and others ZZ [2015] CSIH 29 [2015] CSOH 168 £750

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