Frost v HM Coroner for West Yorkshire (Eastern District) [2019] EWHC 1100, 8 May 2019, (judgment here).

Where new evidence becomes available which renders an inquest’s factual basis inaccurate the interests of justice remain the touchstone for applications under section 13: even the passage of over half a century does not remove the necessity and desirability of ordering a fresh inquest.

Here a bereaved brother successfully applied to quash the decision of the Inquest held in 1966 (under the 1926 Act), which had found that Ian Spencer had murdered his 14 year old sister, Elsie Frost.  

Spencer had been committed for trial, but the Crown had offered no evidence against him.  A new investigation initiated in 2015 had implicated another man, Peter Pickering, who was already serving a life sentence for manslaughter of a 14 year old in 1972. However, Pickering died in 2018 before a charging decision could be made. The police twice publicly stated they believed he had killed Elsie.

The Coroner questioned the value of a fresh Inquest both in terms of the public interest and the interests of the families, and so left it to the bereaved family to go through the process of seeking a fiat and making an application for a fresh inquest.  The Divisional Court clearly did not share the Coroner's concerns.  Indeed, the judgment provides a handy 'nutshells' review of the issues relevant to the passage of time in an application under section 13, including the interests of the bereaved, of properly exploring deaths and of setting the record straight.   The issue of whether 53 years should render the further investigation into the tragic case unnecessary did not trouble the court, 

“Public interest has not been significantly vitiated by the lapse of time"

Re AB (Application for reporting restrictions: Inquest) [2019] EWHC 1668 (QB) 27.6.19 (judgment here)

When seeking any order it always helps to make the right application, to the right court, following the right procedure.   Although when it does go horribly wrong it at least provides valuable learning for the rest of us.

So make sure you are sitting comfortably, and get ready to be educated by Mr Justice Pepperall dishing out a lesson on making an application for reporting restrictions in respect of an inquest.

Inquest into the death of Geoff Gray, 20 June 2019 (Record of Inquest here and findings of fact here)

In what must be a coronial first an assistant coroner has issued a ‘PFD report’[1] directed at the Chief Coroner suggesting he may be able to take action himself to prevent future deaths by issuing guidance to coroners regarding post-mortem investigations after shooting cases.

On 20 June 2019 HH Peter Rook QC[2] concluded the second inquest into the death of Geoff Gray. Geoff was 17 years old when he died from two gunshot wounds to the head at Deepcut Barracks in Surrey in 2001.   Evidence heard at the fresh inquest revealed that very soon after Geoff’s body being found the assumption had been made by attending civilian and military police and by the coroner’s officer that Geoff’s death was a suicide. Therefore only a ‘routine’ coronial post-mortem was requested which was performed on the day of the death.

Two earlier deaths of young trainees from gunshot wounds [3] at the same barracks in 1995 were also both investigated with ‘routine’ coronial post-mortems. I[3]n one case the post-mortem had been carried out by a general histopathologist, who had no experience of performing an autopsy following a death from high velocity gunshot wounds.  

But, as the expert forensic pathologist in Geoff Gray’s case stated,

shooting cases are not routine”…“if you make assumptions early on in the investigation, then there is the likelihood, and indeed the probability, that vital evidential material is lost”.

Inquest into the death of Geoff Gray, 20 June 2019 (Record of Inquest here and findings of fact here)

The long running second inquest into the death of Private Geoff Gray at Deepcut Barracks ended yesterday when HH Peter Rook QC[1] returned a conclusion of suicide.

Geoff was only 17 years old when he was found dead from gunshot wounds in the grounds of the Officers’ Mess at approximately 01.10 hours on 17 September 2001. This fresh inquest, which was ordered by the High Court in 2017, had, in particular, explored whether Geoff had been shot by another person who had then moved his body to the location where it was found.

The Coroner held that Geoff, who had been on armed guard duty, had “died rapidly at the place where his body was found. No third party was involved in the shooting.

On the Record of Inquest the Coroner recorded that Geoff had shot himself with a SA80 rifle that was set to automatic, causing two wounds to the head, and that “at the time Geoff fired the shots he intended to take his own life, although that state of mind may have only been transient.” 

Questions had arisen as to how a young man who appeared as happy-go-lucky as Geoff could have carried out this fatal act. Particularly where, as the coroner found, “Geoff’s actions could not reasonably have been anticipated at the time. He did not suffer with any known psychological difficulties nor had he been the recipient of any ill treatment…Any concerns Geoff may have had did not relate to the camp regime.”

Having considered oral and written evidence from 105 witnesses, including 7 expert witnesses in pathology, ballistics and forensic science, the Coroner determined that Geoff had not been killed by another person.   “However the army had failed adequately to address the risk of self-harm that might arise in respect of young and inexperienced trainees performing guard duty with unsupervised access to firearms. Proposals that trainees should not provide the Barracks’ guard, but be replaced with a professional guard force had not yet been acted upon.”

“Whilst it was entirely Geoff’s decision to take his own life, the above failures provided Geoff with an opportunity to go to an isolated location with a firearm where he could act as he did.”

The Coroner also made a report to Prevent Future Deaths (a ‘PFD’ report) directed to the Chief Coroner and the Royal College of Pathologists. (see blog post here)

 

 The Coroner’s detailed ‘findings of fact’ will shortly be posted on this site when HH Peter Rook QC releases an approved transcript.

  

John Beggs QC and Cecily White of Serjeants’ Inn have represented the Surrey Police at each of the three fresh inquests into the deaths of trainees at Deepcut Barracks of Ptes Gray (in 2019), Benton (in 2018) and Ms James (in 2016). Bridget Dolan QC and Jamie Mathieson were appointed as Counsel to the Inquest.

 

 

[1] Sitting as an assistant coroner in Surrey

Ministry of Justice/ONS (9 May 2019 here)

One death is a tragedy; half a million – well, 541,627 to be precise – is a statistic. 

The Coroners Statistics Annual Bulletin 2018 (which covers the year to end of 2018) has just been released. It is, as always, an invaluable guide to the workload of coroners around the country and possible trends for the future.

The overall bad news is that more of us are dying. Total deaths reported to the ONS have risen year on year, from 484,367 in 2011.  The projected figure of 541,627 deaths in 2018 continues that trend and is set to be the highest total since 1999.

The coroners statistics of course only address those deaths a coroner needs to be told about (those thought to be violent, unnatural or unexplained or of someone in state detention): the good news is that there are less of those.

Of the several things to note in the latest figures the headline is that the removal of the requirement to report deaths of those subject to a Deprivation of Liberty Safeguard (‘DOLS’) authorisation has changed the statistical landscape.

The Professional Standards Authority for Health and Social Care v (1) NMC  (2) Anne Ndlovu   9 May 2019 EWHC 1181 (Admin)  judgment here

It is rare that healthcare staff are seriously dishonest in their evidence to an inquest, although sadly such conduct does at times happen.  Even when criminal prosecutions  are not subsequently pursued, this recent appeal is a strong reminder of the seriousness with which such conduct should be taken and the professional consequences for those who seek to dishonestly hide their errors.

 “Honesty, integrity and trustworthiness are ‘the bedrock’ of any nurse’s professional practice”.

As this case makes clear, courts will not look lightly upon dishonesty to a Coroner: it runs the risk of prejudicing an inquest which is flatly against the public interest.

R (Maughan) v Senior Coroner for Oxfordshire, the Chief Coroner as intervenor (and INQUEST as an interested party) [2019] EWCA Civ 809, 10 May 2019,  judgment here

After the seismic shift that followed Maughan in the Divisional Court it was remarkable that no one seemed to be predicting any aftershocks when the Court of Appeal considered the case.  After all, what had always seemed so obvious one way, was now just so obvious the other way once you stopped and thought about it.  Indeed, why on earth did any of us ever think that something that has not been a crime for more than half a century should require proof to a criminal standard within a civil inquisitorial jurisdiction?  

All the sensible money was on the Court of Appeal upholding the first instance decision.   They have not disappointed. Dismissing the appeal the CoA have now concluded that:

  • the civil standard of proof is to be applied to factual findings and determinations in inquests generally, including to findings of suicide (whether expressed in narrative or short-form conclusions);
  • the criminal standard of proof (exceptionally) applies to the unlawful killing conclusion. 

AB v Assistant Coroner for Inner South London   CO/663/2019, 1 May 2019 decision here.

The Extinction Rebellion protests are a forceful reminder, if any were needed, of how our planet is rapidly becoming more polluted with potentially worrying consequences for all who live on it.  Clean air is one of the most basic requirements of a healthy environment for us all to live, work, and bring up families.  As the government already acknowledges “Poor quality air is the largest environmental risk to public health in the UK” with exposure to nitrogen dioxide having an effect on mortality “equivalent to 23,500 deaths” every year.[1] 

When a nine year old girl dies from a severe asthma attack that may be linked to air pollution it is clearly a cause for concern and investigation.   

Ella Kissi-Debrah who lived alongside the busy London South Circular road died in February 2013 after suffering a severe asthma attack.  Ella had made 27 visits to hospital for asthma attacks since 2010. The first inquest into her death, held in 2014, focussed on the medical cause of her death and the medical care given in the short period between the fatal attack and her death.  The Assistant Coroner concluded that Ella suffered an asthma attack followed by a seizure and died after unsuccessful resuscitation. 

However new medical evidence was subsequently obtained that pointed to the severe air pollution in the area where Ella lived as having contributed to her death.  A monitoring station a mile from Ella’s home had repeatedly logged unlawful levels of air pollution. A Professor of immuno-pharmacology, who was an expert in respiratory disease, provided a report which concluded that the unlawful levels of air pollution had contributed to the cause and severity of Ella’s fatal asthma.  Further evidence pointed to an arguable failure by the state to regulate and reduce the extreme pollution that was implicated in her death.

“There was a real prospect that without unlawful levels of air pollution Ella would not have died” 

R (Chidlow) v Senior Coroner for Blackpool and Flyde [2019] EWHC 581 (Admin) 12 March 2019 (judgment here)

Humans’ bodies being such complex organisms it is unsurprising that medical causation is often extremely complicated and that the law regarding the legal causation of medical injuries can be particularly convoluted.

Indivisible injuries, multifactorial causation, material contribution, loss of a chance etc. create a precarious legal minefield for clinical negligence lawyers to navigate before one even begins to wander into the less well marked territory of the coronial jurisdiction.

Here one must step even more carefully around the danger zone of semantics - wondering whether there really is any effective difference between the ‘causation threshold’ words of minimal or trivial or negligible, whilst remembering the ‘causation standard’ of probable is not what is possible, but not forgetting that a missed opportunity to make a difference may still matter and that Art 2 might anyway require the possible to be recorded regardless of proof.

But this week brings good news for all who must negotiate these coronial causation booby-traps. Mr Justice Pepperall has deployed the mine rollers ahead of you – so take off your personal protective equipment and put down the metal detector – if you want to protect yourself from triggering a legal casualty just take some time out to read and learn from the Divisional Court’s erudite exposition of two fundamental points regarding causation at inquests: 

  • Causation is more than a matter of medical statistics - even where survivors are a majority category.

Something more than being a potential figure in a statistic will be needed that suggests the deceased would probably have been in the category of survivors;[1]

  • There is an important difference between being able to identify what someone died from and being able to say whether, regardless of what precisely caused their death, their life could have been saved with earlier medical attention.

Unfortunately a failure to discern that essential difference led the Senior Coroner in the present case to err in law when he withdrew from the jury the question of whether an admitted delay in an ambulance attending a man contributed to his death.   The Coroner had wrongly concluded that, because there was no clear cause of death, it was not safe to allow the jury to consider the causal effect of the delay in him receiving treatment.

"Establishing a medical cause of death was not essential to being able to form an opinion as to the effect of delayed treatment."

Moreover, the medical expert’s evidence on survivability was not an opinion based solely on statistics. The expert’s view that the deceased would have lived with prompt treatment also relied upon clinical experience; accounts of the deceased’s condition when attended; reading of the other medical evidence (specifically the post-mortem findings and the lack of any underlying disease or infection in an apparently fit young man).   The jury were not bound to accept this expert’s opinion, but his view was not so obviously unreliable that it was not safe to leave the issue of causation to the jury.

What does the Government’s 'Final Report: Review of Legal Aid for Inquests' mean for Advocates?

This report was published in February 2019 (see the report here). The section entitled ‘Making sure inquests remain inquisitorial’ at paragraphs 184 – 202 is particularly worth reading.

The estimated cost of providing representation for families at inquests where the state is represented (a recommendation under review) is a further £30-£70 million.   The Government has decided not to provide that money. Therefore, the inequality of arms between families and state actors continues. (This is an issue on which many at Inquest Blog Towers have views - see here for our earlier post).

No biggie though because, with an alchemical ability that relegates Dr. John Dee’s wizardry[1] to key stage 1, the Government has eliminated misconceived family negativity and accentuated how inequality is not only positive for everyone but also good for the system!