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In this two-part article, Maya Sikand KC, Tom Stoate and Ruby Peacock, explore two difficult questions arising from the inquest into the ‘harrowing circumstances’ of the death of a baby, Aisha Cleary, at HMP Bronzefield.
The first part explored whether coroners should have jurisdiction to investigate stillbirths.
This second part seeks to answer the question: should foetuses ever be protected by a ‘derivative’ right to life?
For a brief introduction to Aisha Cleary’s case, please see Part 1.
Article 2 ECHR rights in utero
Article 2, encapsulating the right to life under the European Convention on Human Rights (‘ECHR’), does not provide temporal limitations on the right to life and does not define ‘everyone’ (‘toute personne’) whose life is protected by the Convention.[1] The European Court on Human Rights (‘ECtHR’) has left it to the margin of appreciation of Convention states to decide when life begins for the purposes of Article 2. In England and Wales, ‘Coroners do not have jurisdiction to conduct an investigation concerning a foetus or a stillborn child, as where there has not been an independent life, there has not legally been a death’.[2]
In this two-part article, Maya Sikand KC, Tom Stoate, and Ruby Peacock, explore two difficult questions arising from the inquest into the ‘harrowing circumstances’ of the death of a baby, Aisha Cleary, at HMP Bronzefield.
This first part seeks to answer the question: should coroners have jurisdiction to investigate stillbirths?
The second part will examine whether foetuses should enjoy Article 2 rights which do not conflict with the rights of the mother.
Rianna Cleary, who was 18 years old at the time, gave birth to Aisha Cleary alone in her cell in HMP Bronzefield, on the night of 26 September 2019, without medical or any other assistance. Ms Cleary’s two calls for help via the prison emergency intercom system in her cell were first ignored, then unanswered – despite there being a 24-hour nursing station on her wing in the prison. Terrified and in pain, without knowing what to do, Ms Cleary felt compelled to bite through her umbilical cord. Aisha’s birth was not discovered by prison staff until the next morning – after other prisoners raised their concerns – at which time Aisha was ‘not moving,had a tinge of blue on her lips, butwasstill warm’.[1] Unsuccessful resuscitation attempts were made, with an adult oxygen mask in the absence of any paediatric or neo-natal mask. Less than an hour later, paramedics confirmed that Aisha had died. The Senior Coroner for Surrey, Richard Travers, stated that Aisha ‘arrived into the world in the most harrowing of circumstances’.[2]
Following a month-long inquest, involving ten interested persons (‘IPs’) and more than 50 witnesses, including three expert witnesses, Mr Travers concluded that numerous causative failings contributed to Aisha’s death.
The advent of the Human Rights Act 1998, and the incorporation into domestic law of the Article 2 right to life, has transformed coronial investigations and inquests over the last two decades. Lord Bingham’s magisterial creation of the ‘enhanced’ investigation and conclusion in R (Middleton) v West Somerset Coroner [2004] UKHL 10, [2004] 2 AC 182 (later adopted by Parliament) gave coroners greater responsibility to hold the state to account for deaths. That, in turn, has significantly improved the ways in which all inquests are conducted, not just those where Article 2 is found to be engaged. Inquests are no longer haphazard affairs. They are (ordinarily) carefully planned and structured processes; and their participants, the ‘interested persons’, are far more involved in assisting coroners with the task of identifying the proper scope of their investigations and the lawful ambit of their conclusions.
Article 2, then, has already conquered and occupied the terrain of the coroners’ courts and it is only at the frontiers of its application that legal skirmishes still occur. One such fight is the case of R (Maguire) v HM Senior Coroner for Blackpool & Fylde and another [2023] UKSC 20, which was argued before the Supreme Court on 22nd and 23rd November 2022, and in which judgment was given on 21st June 2023.
The central issue in the case was whether Article 2 required an enhanced inquest into the death of highly vulnerable woman, Jackie Maguire, who had become seriously unwell while in a private residential care home and had later died in hospital. The Supreme Court held unanimously that it did not. More importantly, in doing so, it took the opportunity to provide a detailed and authoritative account of how Article 2 applies to coronial investigations and inquests.
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 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.
The year passed was, unsurprisingly, another year of tumult and surprise, something that by now registers as the norm rather than an aberration. Even so, 2022 must be a standout year – even by recent standards. From Russia’s invasion of Ukraine to the death of Queen Elizabeth II, the collapse of two consecutive Tory governments, dramatic election results around the world from Israel to Brazil, and in the run up to the festive season a football World Cup as mired in human rights controversy as in any sporting event can be, 2022 was not a quiet year.
Nor did the legal world disappoint. On the Parliamentary side of things, Justice Secretary Dominic Raab’s controversial Bill of Rights Bill continues to clunk through Parliament, and other bills with interesting human rights implications have had their moment in the sun as well. To take but one example, the Online Safety Bill, whose controversial but central parts dealing with ‘legal but harmful’ speech were removed recently, is yet to become law after extensive reform following criticisms based on freedom of expression.
But the focus of this post is not on Parliament, or politics in general, but on the highlights of 2022 in the Courts. So with no further ado and in no particular order, the cases which (in the completely impartial and objective joint opinion of the co-editors of this blog) have defined 2022 are:
In R (Morahan) v HM Assistant Coroner for West London [2022] EWCA Civ 1410, the Court of Appeal robustly rejected a challenge to the earlier decision of the Divisional Court that Article 2 did not apply to drug related death of a voluntarily admitted psychiatric patient.
Photograph: Linda Nylind
The deceased had died in her own flat in July 2018 whilst under long-standing psychiatric care for schizophrenia. At the time she was a voluntary patient in a unit operated by the Central and North West London NHS Foundation Trust who had failed to return to the unit when expected She had a history of illicit drug taking but had been abstinent from drugs for many months before her death. She had failed to return to the unit when expected. As noted by the Lord Chief Justice (delivering the judgment of all the court) at [3] there was no basis for suggesting that she had taken her own life.
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.
In R (Patton) v HM Assistant Coroner for Carmarthenshire and Pembrokeshire [2022] EWHC 1377 (Admin), Mrs Justice Hill quashed a ruling that the Article 2 general (or systemic) duty has not been potentially engaged by the death of Kianna Patton.
Kianna had been found hanging aged 16 at a time when she was under the care of Specialist Child and Adolescent Mental Health Services with a history of self harm. She was living with a friend, whose mother had let her use cannabis. This caused her mother (the Claimant) significant anxiety, given Kianna’s mental health issues. Her mother sought assistance in relation to Kianna from social workers and Police officers before her death. She believes there were serious failings in the way they responded and in the care S-CAMHS provided to Kianna. Following the Coroner’s ruling that Article 2 was not engaged, a Health Board’s report that was disclosed identified several issues with care delivery and the way that Kianna’s risk had been assessed, in particular, noting that safeguarding screening had not been completed once it was identified that she was no longer living at home.
Tanya Morahan had a history of paranoid schizophrenia and harmful cocaine use. From mid-May 2018 she was an inpatient at a rehabilitation unit operated by the Central & North West London NHS Foundation Trust. She was initially detained under s.3 of the Mental Health Act 1983 but on 25 June 2018 the section was rescinded. On 30 June 2018 Tanya left the unit but didn’t return until the next evening, 1 July. On the afternoon of 3 July 2018, again with her doctors’ agreement, she left the ward but didn’t return. The Trust asked the police to visit her. They visited on 4 July 2018 but she did not answer the door. She was ultimately found dead on 9 July 2018. [para 2].
Background
The Coroner opened an inquest and found that Article 2 was not engaged. The family brought judicial review proceedings, arguing that: (1) the circumstances of Tanya’s death fell within a class of cases which gave rise to an automatic duty to conduct a Middleton inquest; (2) alternatively, that such duty arose because there were arguable breaches of a substantive operational duty (the Osman duty) owed by the Trust to take steps to avert the real and immediate risk of Tanya’s death by accidental drug overdose, a risk which was or ought to have been known to the Trust. [para 3].
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 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
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. Continue reading →
Neil 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. Continue reading →
The 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. Continue reading →
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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