High Court gives guidance on scope of article 2 inquests

28 June 2022 by Jasper Gold

In R (Gorani) v HM Assistant Coroner for Inner West London [2022] EWHC1593 (QB), a Divisional Court comprising Macur LJ and Garnham J rejected on all grounds a wide-ranging challenge to the conduct of in inquest into a suicide. Of particular interest were the Court’s observations on the effect of a finding that the investigative duty under article 2, ECHR was engaged, and their clarification that a coroner does not need to hear submissions before refusing to make a ‘preventing future deaths’ report. That said, it is a broad and interesting judgment and deserves reading in full by those with an interest in coronial law.

Mr Gorani had a history of mental health difficulties and had received treatment for depression. Several days after being dismissed from his job, he committed suicide. The Coroner accepted that his inability to access care at points in the run-up to his death meant that article 2 was potentially engaged and conducted the inquest accordingly ([27]-[28]). The Coroner returned a relatively short narrative conclusion including a confirmation that Mr Gorani’s death was due to suicide.

A challenge was brought by his family on a range of grounds, including bias, failure to properly investigate, failure to take into account material evidence, and failure to hear submissions before refusing to make a preventing future deaths report under Paragraph 7 of Schedule 5 of the Coroners and Justice Act 2009.

Bias

The family argued that the Coroner’s tone and demeanour were biased and that she had been substituting her own evidence for that of witnesses, but this was rejected on the facts ([47]). The Coroner, it was held “was obliged to approach the inquiry with an open mind, but not an empty one” and was “entitled to form preliminary views on the basis of the evidence she had heard and read”. The court explicitly approved the use of leading questions by the Coroner to “understand a witnesses evidence, to summarise it, to test it, or to put it in context” ([48]).

Insufficient inquiry

The meat of this challenge was that the Coroner had misdirected herself in law by failing to investigate to a sufficient degree bearing in mind that article 2 was engaged. The court, rejecting this ground, took the opportunity to clarify the operation of the article 2 investigative duty in the context of an inquest, holding at [68] that:

“the fact that a coroner declares that an inquest will serve to meet the state’s obligation to investigate the death… does not trigger an obligation on the coroner to investigate every aspect of the case to the standards of Article 2. A coroner’s ruling as to the particular issues in respect of which Article 2 requires investigation delimits the scope of the Article 2 inquiry”.

The Court also observed that the key influence of article 2 is in the conclusion (requiring it to address not just how but also in what circumstances the deceased came by their death). What article 2 usually does not do is affect the scope of the inquest generally or the sort of evidence that is called ([71]). Having set out the law on the effect of article 2, the Court went on to hold that the Coroner’s enquiry had been sufficient whether or not article 2 had been engaged ([79]).

Failure to take into account material evidence/error of fact

The family argued that the Coroner had failed to take into account aspects of why certain triage decisions had been made, or not been made ([89]). The Court set out the test for when an error of fact is justiciable, drawn from E v Secretary of State for the Home Department [2004] EWCA Civ 49, per Carnwath LJ at [66]:

“…First, there must have been a mistake as to an existing fact, including a mistake as the availability of evidence on a particular matter. Secondly, the fact or evidence must have been “established”, in the sense that it was uncontentious and objectively verifiable. Thirdly, the [claimant] must not been have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the Tribunal’s reasoning.”

Having set out the test, the Court dismissed the family’s challenges as “no more than disagreement with the Coroner’s conclusions on the appropriate inferences to be drawn from the facts ([87]). Similarly on the challenge that the Coroner had failed to take into account relevant considerations, the Court disagreed, holding that the considerations had been taken into account and what was being challenged was the weight they were given. But while the question of what is a relevant consideration is a question for a reviewing court, the matter of how much weight to apply to a relevant consideration is a matter for the decision-maker” ([91]).

Preventing Future Deaths Reports

The Coroner had refused to hear submissions from the family before deciding that there was no requirement to make a preventing future deaths report. The Court held that there was no duty on a coroner to do so: the reports were a statutory creature and there was “nothing in the wording of Schedule 5 which imposes a requirement on the Coroner to hear submissions from interested persons before deciding whether or not the duty to report arises”, nor were there grounds to imply that obligation ([96]-[97]).

The reports are not a matter for the parties; as Garnham J put it:

“An inquest remains an inquisitorial process and the duty here is one imposed on the coroner. It is in circumstances where she forms the opinion, in the light of the facts revealed by the investigation, that action is required that she is required to make a report. No doubt it will often be the case that a coroner will find it helpful to invite such submissions, but there is no obligation on her to do so.“

Comment

Gorani is a reminder that, as the quote directly above illustrates, coronial courts are the domain of coroners even more than conventional courts are the domain of judges. They enjoy a broad discretion to carry out that investigation as they see fit, whether that is by shaping the questioning or deciding whether to hear preventing future deaths submissions. Parties wishing to challenge a coroner’s conduct will often face an uphill battle to do so.

But perhaps the most important aspect is the Court’s approach to article 2. Paragraphs [68] and [80] read together suggest that when article 2 is engaged, it is not the whole investigative process of the inquest that is affected, but only the investigation of the matters which may have amounted to a breach of article 2. This has the potential to influence the practice of inquests significantly.

The coroner’s power to include a wider “in what circumstances” aspect to an inquest’s conclusion is limited by statute to circumstances where this is “necessary to avoid a breach of any Convention right” (s. 5(2), Coroners and Justice Act 2009). Where this applies, as confirmed in Gorani itself (at [80]), a coroner may express a view on (or, where there is a jury, leave to the jury) matters which are only possibly rather than probably causative of death.

But if the investigative obligation is limited, then so too, presumably, is the wider causal test. It may be that following Gorani, coroners will have to carefully delineate between potential causes of death which engage article 2 and those which do not. The former could be left to a jury (or subject to a determination) whether probable or possible causes, the latter at the discretion of the coroner, but the latter would be confined to probably, not possible causes.

Jasper Gold is a barrister at 1 Crown Office Row