Schrödinger’s Defendants: Inquests, Unlawful Killing and Criminal Acquittals
6 February 2023
Three recent cases indicate a substantial change in law and practice, with inquests now seemingly free to make a determination of unlawful killing notwithstanding the acquittal of a defendant at a criminal trial.
The Inquests into the Shoreham air crash
R (Leeson) v HM Area Coroner for Manchester South  EWHC 62 (Admin)
R (Makki) v HMSC for S. Manchester  EWHC 80 (Admin)
The coronial and criminal jurisdictions have a long and tangled relationship. The word “murder” derives from “murdrum”, the Medieval tax levied on a community after a coronial finding that an unidentified body was that of a Norman. In later centuries, juries at inquests could find people guilty of murder, empowering the coroner to issue an arrest warrant and commit them for trial. Yet from common soil and entwined roots, inquests and trials grew into increasingly distinct plants and during the twentieth century the primacy of criminal investigations and prosecutions became enshrined in legislation. Coroners were required to suspend inquests during criminal proceedings. If resumed, those inquests were prohibited from coming to conclusions that were “inconsistent” with the verdict of the criminal court: see what is now para.8(5) of Schedule 1 of the Coroners and Justice Act 2009 (“CJA 2009”). After 1977, inquests were prohibited from appearing to determine criminal liability on the part of a named person: see what is now s.10(2)(a) CJA 2009. The conclusion of “unlawful killing” remained, but inquests could no longer formally identify who was responsible; that was a matter solely for the criminal courts.
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