Inquests


Is an expert report prepared for the purposes of an inquest covered by litigation privilege?

2 September 2021 by

In the matter of an application for Judicial Review by Linda Kercher and Carol Mitchell [2020] NICA 31; [2020] Inquest L.R. 76

A niche question, but an important one for those in the field, particularly as the Northern Ireland Court of Appeal has found that it is not.

The case concerns a coroner’s decision to seek disclosure of an expert report prepared on behalf of the families of two soldiers who were found dead at their barracks. The families resisted disclosure relying on s.17B(2)(a) of the Coroners Act (Northern Ireland) 1959, which provides that a person cannot be compelled to produce a document to a coroner if he or she could not be required to do so in civil proceedings in Northern Ireland. (An equivalent provision for England and Wales is found at para. 2(1)(a) of Schedule 5 of the Coroners and Justice Act 2009.) The expert report, they argued, attracted litigation privilege. The coroner’s case was that as inquests were non-adversarial they were not litigation, and hence no privilege could be asserted.

NICA found for the coroner, with reluctance. Had it had a blank sheet, it would have held that litigation privilege applied. There were good reasons why it should do so, not least as it allowed for a participant in an inquest to take reasonable steps to inform and prepare its position (see the dissenting speech of Lord Nicholls in  Re L (a minor) [1997] AC 16). However, the court considered itself bound by the majority in Re L and the authority of Three Rivers District Council and Others v Gov of the Bank of England (No 6) [2005] 1 AC 610 (HL), and in particular the conditions for litigation privilege set out as [102] by Lord Carswell in the latter case:

(a) litigation must be in progress and contemplation;

(b)  the communications must be made for the sole or dominant purpose of conducting that litigation; and

(c)  litigation must be adversarial, not investigative or inquisitorial.

Although the court found for the coroner on the point before it, the victory was pyrrhic. Morgan LCJ, delivering the judgment of the court, joined the High Court in questioning the wisdom of the coroner’s decision to seek disclosure of the report. The coroner had already instructed his own expert, whose report he had found to be satisfactory; what public interest was there in seeking disclosure of the families’ report in what appears to have been an unprecedented way? The court invited the families to consider an application under s.17A(4)(b) of the 1959 Act, which provides that a person can resist disclosure to the coroner on the basis that it “is not reasonable in all the circumstances to require him to comply with such a notice” (see also para. 1(4)(b) of Schedule 5 of the 2009 Act for England and Wales). The court’s view (obiter) was that, ‘it appeared to us that the balance was highly likely to favour the view that a requirement to disclose the report was not reasonable’ [37].

Lessons

Those involved in the coronial proceedings may wish to take note of this judgment, and in particular the tight definition of litigation privilege. However, properly interested persons should be aware of the alternative basis for resisting disclosure provided by the relevant statutory provisions on reasonableness. Coroners will no doubt read the final paragraphs of the NICA judgment and ask themselves whether seeking disclosure of such reports is really appropriate in the first place.  

It should also be noted that where an expert report is prepared for the ‘dominant purpose’ of adversarial litigation, privilege will apply as long as the other two conditions set out in Three Rivers (No. 6) are also met.

There is a further implication of the judgment that is of practical interest. The 2009 Act makes it a criminal offence to ‘suppress or conceal’ a document where it is likely that the coroner ‘may wish to be provided with it’: para. 7(2)(a) and 7(3) of Schedule 6. If an expert report is not covered by litigation privilege, then it is at least possible that a coroner may wish to be provided with it. That being so, is there an obligation on those connected with an inquest to inform the coroner about the existence of such a report, even if they do not wish to rely on it in evidence? 

NB The judgment was handed down in June 2020, but has only recently been made available online.

The Weekly Round-up: Home Office deaths and Post Office “thefts”

26 April 2021 by

Home Secretary Priti Patel

In the News:

The Upper Tribunal (Immigration and Asylum Chamber) has found that Priti Patel breached her procedural obligations under Article 2 of the ECHR in respect of deaths in immigration detention.  

The application for judicial review arose following the death of Oscar Lucky Okwurime on 12 September 2019 in his cell at IRC Harmondsworth. Mr Okwurime had tried but failed to secure healthcare at the centre. He was not provided with his obligatory ‘Rule 34’ GP appointment within 24 hours of his arrival.

Priti Patel was subject to a legal requirement to assist the coronial inquest by identifying and securing evidence from potential witnesses. Instead, she elected to continue with her plans to remove a number of potential witnesses, including the Applicant, Mr Lawal, a close friend of Mr Okwurime.

Later, the Area Coroner for West London required Mr Lawal to attend the inquest on the basis that he was “an important witness of fact.” The jury later found that “multiple failures to adhere to healthcare policy” and “neglect” contributed to Mr Okwurime’s death from coronary heart disease.

The court found that Patel acted unlawfully in deciding to remove the Applicant in that she failed to take to take reasonable steps to secure the applicant’s evidence concerning the death of Oscar Okwurime. Aditionally, the absence of a policy directing caseworkers on how to exercise immigration powers in a case concerning a witness to a death in custody was unlawful. This was contrary to her Article 2 procedural obligations.

A Home Office spokesperson has said that, in light of the judgment, its processes were being refreshed and a checklist was being introduced to ensure all potential witnesses are identified.

The decision comes as Patel faces criticism for “serious mistakes” and “fundamental failures of leadership and planning” by the Home Office in managing former military sites as makeshift accommodation for asylum seekers. The Home Office is also being sued by a female asylum seeker who claims that staff at her asylum accommodation refused to call an ambulance for three hours after she told them she was pregnant, in pain and bleeding. When she was eventually taken to a nearby hospital, she learned that her baby had died.

In Other News:

  • Helena Kennedy QC, a leading human rights barrister and author of Eve Was Framed, has been included on the list of those sanctioned by the Chinese government for criticism of the human rights abuses against Uighur Muslims in Xinjiang province. Together with David Alton, a crossbencher, she helmed an ultimately unsuccessful attempt to persuade the UK government to create a procedure that would have enabled the English high court to make a determination on whether the evidence reached the threshold for genocide. China has imposed sanctions on 10 other UK organisations and individuals, including the former leader of the Conservative party Iain Duncan Smith, over what it called the spreading of “lies and disinformation” about human rights abuses in Xinjiang.
  • The investigatory powers tribunal (IPT), which examines allegations that the state has misused its surveillance powers, has heard from an environmental activist who was deceived into a long-term sexual relationship by an undercover Metropolitan police officer that his managers knew about the deception and allowed it to continue. A judge-led public inquiry into the activities of undercover officers is ongoing; Phillipa Kaufmann QC, who represents women deceived into sexual relationships, has called the practice “endemic”.

In the Courts:

  • Hamilton & Ors v Post Office Ltd [2021] EWCA Crim 577: the Court of Appeal quashed the convictions of thirty nine men and women employed by the Post Office as sub-postmasters, sub-postmistresses, managers or counter assistants; three other former employees’ appeals failed and were dismissed. All the appellants were prosecuted by their employer and convicted of crimes of dishonesty. The reliability of the computerised accounting system, “Horizon”, in use in branch post offices during the relevant period, was essential to the prosecutions. Despite repeated assertions by the Post Office that the system was robust and reliable, it has become clear that it was critically undermined by bugs and glitches which cause it to incorrectly record shortfalls. The court called the convictions “an affront to the public conscience.” A public inquiry chaired by Sir Wyn Williams, President of Welsh Tribunals, is currently trying to establish an account of the implementations and failings of the system.
  • Howard, R (On the Application Of) v Secretary of State for the Home Department [2021] EWHC 1023 (Admin): the High Court ruled that the Home Office’s handling of a Windrush citizenship application was irrational and unlawful. Hubert Howard was repeatedly denied British citizenship over the course of a decade, despite having lived in the UK since he arrived from Jamaica at the age of three in 1960, on the grounds that a number of minor convictions prevented him from meeting a “good character” requirement, which is an eligibility criteria for citizenship.
  • Elkundi & Ors, R (On the Application Of) v Birmingham City Council [2021] EWHC 1024 (Admin): the High Court has ruled that Birmingham City Council has been operating an unlawful system for the performance of its main housing duty under the Housing Act 1996. The Council had been operating on the basis that an applicant owed the main housing duty may be left in unsuitable accommodation while the Council takes a reasonable time to secure permanent suitable accommodation. Steyn J held that this was unlawful; the main housing duty is an “immediate, unqualified and non-deferrable” duty to secure suitable accommodation. Putting applicants on a waiting list was not a lawful means of performing that duty.

On the UKHRB:

  • Caroline Cross covers a recent case in which the boundaries of causation in mesothelioma deaths were tested and clarified.
  • Martin Forde QC summarises the High Court’s decision (set out briefly above) that the Home Office’s handling of a Windrush citizenship application was unlawful

Sensitisation to allergy is physical injury – Supreme Court

23 March 2018 by

Dryden and Others v Johnson Matthey [2018] UKSC 18 – read judgment 

We are all made of stuff, and that stuff is not inert because it’s organic matter. Changes at the molecular level happen all the time, through cell death and replenishment, growth and the constant attrition caused by cosmic radiation on our DNA.  Other changes are wrought by the environment or other organisms. Some changes are beneficial, even life saving, such as the removal of an appendix or the insertion of a pacemaker.  The production of antibodies by vaccination have eradicated many diseases.  Most of the time the body manages this itself.  Every time certain cells in the blood encounter a foreign invader, they recruit the immune system to come up with a focussed weapon. This is an antibody, which lies dormant until the threat (the antigen) arises again.  Antibodies are good things to have around until they’re provoked by enemies akin to the ones that created them, whereupon the body produces an allergic reaction to get rid of the toxin/allergen.

So, does the triggering of an antibody (an immunoglobulin molecule) constitute tortious injury, sounding in damages? This is the question raised by this case, and it goes to the heart of what “injury” is for the purposes of the law.
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Litvinenko – When real life is more fantastic than fiction

25 January 2016 by

LitvinenkoNeil Garnham QC (now Mr Justice Garnham) and Robert Wastell of 1COR acted for the Secretary of State for the Home Department at the Litvinenko Inquiry. David Evans QC and Alasdair Henderson acted for AWE Plc. None was involved in preparing this post.

The publication on Thursday of the long awaited report by Sir Robert Owen into the circumstances of the death of Alexander Litivenko from polonium poisoning on 23 November 2006 has (unsurprisingly) resulted in bitter criticism by the Russian Government of the Inquiry’s conclusions that the poisoning was probably directed by the Russian Federal Security Service, and probably approved by President Putin. The report is long (246 pages not including Appendices), but in page after page of readable and measured prose Sir Robert Owen tells the extraordinary story of Alexander Litvinenko’s death and the subsequent 9 year investigation into it.
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Intensive care, and the outer limits of Cheshire West

6 November 2015 by

Int careThe Queen (on the application of LF) v HM Senior Coroner for Inner South London [2015] EWHC 2990 (Admin)

Where a coroner has reason to suspect that a person has died in custody or “otherwise in state detention” and that the death was violent, unnatural or by way of unknown cause, the coroner must hold an inquest with a jury (section 7 Coroners and Justice Act 2009 (“CJA”)). The interesting issue in this case was whether and/or in what circumstances a person who has died whilst in intensive care will be regarded as having died “in state detention”, thus triggering a jury inquest.
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The Long Shadow of the Troubles

7 July 2015 by

Photo: The Guardian

Photo: The Guardian

In Finucane’s (Geraldine) Application [2015] NIQB 57 the Northern Ireland High Court  dismissed a challenge to the decision by the British Government to carry out a ‘review’ by Sir Desmond Da Silva rather than a public inquiry into the murder of Belfast solicitor Pat Finucane on 12 February 1989.

Mr Finucane, a Belfast solicitor who had represented a number of high profile IRA and INLA members including Bobby Sands, was murdered in front of his family by loyalist paramilitaries in one of the most notorious killings of the Troubles. His death was mired in controversy due to the collusion between the security forces and his killers. Mr Justice Stephens stated at the outset of his judgment that

It is hard to express in forceful enough terms the appropriate response to the murder, the collusion associated with it, the failure to prevent the murder and the obstruction of some of the investigations into it. Individually and collectively they were abominations which amounted to the most conspicuously bad, glaring and flagrant breach of the obligation of the state to protect the life of its citizen and to ensure the rule of law. There is and can be no attempt at justification.

 

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How not to get a pre-inquest review wrong

25 February 2014 by

Coroners-CourtBrown v. HM Coroner for Norfolk [2014] EWHC 187 (Admin) – read judgment

This is the sad tale of a young woman aged 31 dying in mysterious circumstances where the inquest went off entirely on the wrong footing. Joanne Foreman was not a diabetic but lived with a young boy who was. It was suspected that on the night before she died she had drunk heavily and then injected herself with insulin. The inquest proceeded on this basis. Nobody told the expert that the paramedics had taken a blood glucose from Joanne, which was entirely normal.  Once this was known, it was obvious that the court would quash the findings at inquest and order a new inquest.

But the case contains powerful guidance from the Chief Coroner (sitting as a judge on this decision) about how to conduct the pre-inquest review.

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In South Africa, the not-so-quick and the dead.

13 November 2013 by

4208618041

 

There’s a crisis in South Africa’s mortuaries – in the investigation of death.

 This is due to a number of problems – incompetent staff who fail to gather forensic evidence, creaking and inadequate facilities, and the sheer number of dead bodies waiting to be processed. In a gripping but bleak documentary about Salt River Mortuary, which is responsible for processing cadavers in the Western Cape, the figures will make you gasp and stretch your eyes:

For the Western Cape alone, 3,000 bodies are handled by this Mortuary each year. Of this number, 65% are unnatural deaths (accidents, suicides, homicides). Of that number (approx 2,000) a staggering 80% are homicides – in other words, Salt River is responsible for providing the forensic evidence for reconstructing the crime scenes leading to 1,600 murders a year.

Watch the ten minute film here.
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No article 2 inquest over 14-year-old overdose death, despite failings

14 November 2012 by

Methadone

Kent County Council, R (on the application of) v HM Coroner for the County of Kent (North-West District) & Ors [2012] EWHC 2768 (Admin) – read judgment

The High Court – including the new Chief Coroner – has held that the enhanced investigative duty under Article 2, the right to life, is not engaged in an inquest into the death of a 14 year old boy, despite “many missed opportunities” for intervention by social services being identified.  

Another sad case on when and how the enhanced investigative duty under Article 2 ECHR is engaged. EB, a troubled 14 year old, died of a methadone overdose in November 2009.  He was known to the claimant’s social services department, who were the subject of criticism in a serious case review following his death.  The review found that there had been “many missed opportunities” to intervene, but felt that:  “It cannot be concluded that a different approach … would have prevented [EB]’s death, but there is a possibility that there may have been a different outcome.”  The council have since apologised unreservedly to the family.

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Inquest reforms delay leaves relatives of the dead in legal limbo

13 August 2010 by

David Kelly

It has long been accepted that the coroners’ courts, which investigate tens of thousands of deaths per year, are in urgent need of reform. But long-awaited changes are now under threat from Ministry of Justice budget cuts, leaving relatives of the dead with an inconsistent system of varying quality. This arguably places the state in breach of is obligations under human rights law.

A death is referred to a coroner when there is reasonable cause to suspect that it was violent or unnatural, or if the cause is unknown. In 2009, just under half of around 460,000 deaths were reported to the coroner, and 31,000 inquests were then opened. Inquests are rarely out of the news; for example, today calls were renewed for an inquest into the death of David Kelly. In the absence of obvious negligence or suspicious circumstances triggering a criminal investigation or compensation claim, inquests are often the only chance for relatives to get to the bottom of how a person died.

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Feature | The duty to investigate deaths under human rights law: Part 2

15 July 2010 by

R (Humberstone) v Legal Services Commission [2010] EWHC 760 (Admin) – Read case

Part 2 of Matthew Hill’s feature on the duty to investigate deaths under human rights law (read Part I).

A recent High Court decision (see previous post) concerning the funding of a party at a coroner’s inquest has highlighted the importance of distinguishing between the two different types of investigative duty that arise under Article 2 ECHR.

It is argued in this post that imprecise terminology and a failure to appreciate that Article 2 is engaged in Jamieson as well as Middleton inquests has confused this area, and that the learned judge in R (Humberstone) v Legal Services Commission [2010] EWHC 760 (Admin) erred by eliding the investigative duties and the case-law from which they emerged.

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Feature | The duty to investigate deaths under human rights law: Part 1

12 July 2010 by

Silih v Slovenia (2009) 49 E.H.R.R. 37 – Read judgment, McCaughey and Quinn’s Application [2010] NICA 13 – Read judgment

This is Part I of Matthew Hill’s feature. Click here for Part II.

A recent decision of the Strasbourg Court has reopened the issue of the State’s obligation to investigate deaths under the European Convention on Human Rights, leaving a tension between the European Court’s view and that of the highest UK court.

In Silih v Slovenia (2009) 49 E.H.R.R. 37, the European Court looked again at the question of whether the investigative obligations under Article 2 ECHR have retrospective effect in domestic law. A majority of the Court held that Slovenia’s failure to provide an effective independent judicial system to determine responsibility for the death of a patient receiving medical treatment violated Article 2 even though the death itself took place before the Convention came into force in that state.

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Human Rights Act does not apply on the battlefield, says Supreme Court [updated]

30 June 2010 by

R (Smith) v Secretary of State for Defence & Anor [2010] UKSC 29 – Read judgment

The Supreme Court has ruled by a 6-3 majority that the Human Rights Act does not apply on the battlefield and soldiers are not automatically entitled to inquests arising from deaths in foreign conflicts.

The case related to Private Jason Smith, a member of the Territorial Army who died from heatstroke in Iraq in 2003.

The decision has come as a relief to the Ministry of Defence. In recent years, coroners have been highly critical of the armed forces’ protection of soldiers on the battlefield, and this case had the potential to open up the Government to a series of claims for compensation by soldiers and their relatives. However, the Supreme Court has (narrowly) taken the view that the Human Rights Act 1998 was not designed to apply in such cases.

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Upcoming seminar on Inquest law

21 June 2010 by

We have been alerted to a 1-day seminar organised by Lexis Nexis on Inquest Law and the latest changes including those introduced by the Coroners & Justice Act. The seminar is on Wednesday 22 September 2010 in central London.

We posted last week on the duties to investigate deaths imposed on states under Article 2 of the European Convention on Human Rights, particularly in the context of public inquiries and inquests.

The seminar includes a comprehensive-looking agenda, including a session on The State’s duties under Article 2 ECHR: The Human Rights Act and inquests, run by Hugh Southey QC of Tooks Chambers.

Click here to download more details.

Inquests and legal aid for relatives of the dead

11 May 2010 by

Recent weeks have seen considerable media attention paid to the role of inquests and their increasing significance for relatives of the deceased.

Article 2 of the European Convention on Human Rights, providing legal protection for everyone’s right to life, in some circumstances requires investigation into a death such as an inquest. It places a duty upon the state to ensure the investigation is properly conducted. This may entail providing funding, such as legal aid given to relatives so they may be represented at the hearing.

On 1 May 2010, The Times published “How coroners have become the public voice of grieving relatives” which considered the trend in recent years for coroners to take a role similar to that taken by a chair of a public inquiry. Frances Gibb wrote that David Ridley, a coroner in an inquest for two soldiers killed in Afghanistan, made comments which will give some comfort to grieving relatives. Only two days earlier, another coroner, David Masters, “castigated US authorities’ failure to cooperate in an investigation into the “friendly fire” deaths of three British soldiers”.

The article goes on to note that

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