Inquests into deaths in custody during the COVID-19 pandemic
6 April 2020
Following the sad news of the first death in custody from COVID-19, a question arises: what are likely to be the issues at inquests into the deaths in custody from COVID-19?
Article 2 and the central issues
Not all deaths in custody mandate an Article 2 inquest (see R (Tainton) v HM Senior Coroner for Preston and West Lancashire  EWHC 1396 (Admin); R (Tyrell) v HM Senior Coroner for County Durham and Darlington  EWHC 1892 (Admin)). An Article 2-compliant inquest must be undertaken when there has been an arguable breach of the substantive obligation to protect life. When a death occurs in custody, Article 2 will be engaged if there have been any arguable failings in the care provided.
The new Coronavirus Act 2020 will not change this. The real questions will be whether the deceased died as a result of failings on the part of the prison. There will undoubtedly be questions asked about the steps taken by the prison to protect prisoners, especially those identified to be at risk, whether because of an underlying health condition or their age.
The Government recently issued guidance on the steps being taken in prisons and other state detention centres to isolate prisoners and staff who develop symptoms. For example, any prisoner or detainee with a new, continuous cough or high temperature should be placed in protective isolation for 7 days. Where necessary, if there are multiple cases, ‘cohorting’ or gathering a number of potentially infected cases together may be appropriate. Staff who become unwell with the symptoms are to go home.
A prima facie failure to comply properly with this medical guidance is likely to lead to an Article 2 inquest. For example, if an individual is not isolated after showing symptoms, and another prisoner or detainee develops symptoms having come into close contact with them, this may represent a failing by the prison.
One interesting question is how far Coroners will be willing to go in Article 2 inquests in considering whether the steps taken in prisons and detention centres were sufficient to protect prisoners and detainees.
There has been a wealth of criticism about the sluggishness of the Government’s response to the crisis, and there remain questions about the discrepancy between the World Health Organisation (WHO) recommendation of 14 days self-isolation compared to the Government’s advice of only 7 days. It seems unlikely that any coroners would be willing to call evidence looking at the timing of the Government’s decisions or the appropriateness of this advice. The Government has also responded to calls for prisons to release some prisoners early, or release remand prisoners, to combat overcrowding, by releasing up to 4,000 ‘low-risk offenders’ on licence. If a death occurs as a result of prisoners being required to share cells with those who have tested positive for the virus, serious questions may be asked at an inquest.
Nevertheless, establishing any causative link between any decision/care and the death is likely to be difficult. It might be necessary to rely on the power to leave to the jury potentially causative factors (per R (Lewis) v HM Coroner for the Mid and North Division of Shropshire  EWCA Civ 1403).
Section 30 of the Coronavirus Act 2020 provides that, for the purposes of an inquest, COVID-19 is not a notifiable disease so that a jury is not mandatory for a COVID-19 related death under section 7(2)(c) of the Coroners and Justice Act 2009.
This should not make a difference to deaths in custody. An inquest into a death from COVID-19 in prison will not, of itself, require a jury. However, if there are concerns that there were failures which resulted in the individual dying from COVID-19, such that the death could not be considered a ‘natural death’, then the obligation to empanel a jury will still arise under section 7(2)(a).
Inquests into deaths in custody normally take some time before the hearing is listed. This is because investigations by the Prisons and Probation Ombudsman (PPO) and other organisations normally take place in advance. The previous special edition of the 1 Crown Office Row Quarterly Medical Law Review dealt with how long hearings will be adjourned for. It is likely that this pandemic will delay these cases even further.
Gideon Barth is a barrister at 1 Crown Office Row.