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- Written by Bridget Dolan QC
R (IPCC) v IPCC [2016] EWHC 2993 (Admin) (25 November 2016) (judgment here)
The value of a Coroner’s inquest in opening up matters to public scrutiny is clearly demonstrated by this highly unusual application by the Chief Executive of the IPCC who, following a searching inquest, brought proceedings against his own organisation to overturn its flawed report into police conduct.
Jordan Begley died following contact with police during which a Taser had been used and he had been restrained. Police officers had been called to his house by his mother, who was concerned that Jordan might become violent. He had been drinking and was upset about having been accused by others of stealing a handbag. His mother said that he had a knife and he wanted to go outside to confront his accusers. A number of officers arrived at the scene and a Taser was used. Once tasered, Mr Begley fell to the floor and was restrained face-down. In the course of bringing him under control, one of the police officers delivered two strong punches as “distraction strikes” to Mr Begley’s back to enable him to be handcuffed. It shortly became clear that Mr Begley was very unwell and despite being taken to hospital, tragically, he died shortly thereafter.
The IPCC report into the incident, which was available to the inquest, had found that no officer had any case to answer for misconduct or gross misconduct. The inquest jury did not agree.
The inquest jury reached a narrative conclusion that was far more critical than the IPCC report, finding that:
- Mr Begley had died from a stress-induced cardiac arrest;
- the use of a Taser was “not reasonable”;
- the length of time for which the Taser was deployed (over 8 seconds) was not reasonable;
- there was no need for a police officer to have punched Mr Begley twice;
- the police had not been sufficiently concerned with Mr Begley’s welfare once he was handcuffed; and
- failings by police officers had materially contributed to the death.
In light of the inquest findings the IPCC reviewed its own investigation and found errors in its own guidance and the independent investigation report
In the face of such public criticism of police actions it was clear that the IPCC report needed to be reconsidered, but the only mechanism to do so was for the Chief Executive to bring judicial review proceedings against his own organization, so as to quash a report and enable a fresh investigation to take place. That claim was opposed by the police officers involved.
- Details
- Written by Bridget Dolan QC
McDonnell v Assistant Coroner for West London [2016] EWHC 3078 (Admin) 6 December 2016 (judgment here)
Leo McDonnell died due to a fatal cardiac arrhythmia. At the time of his death he was prescribed nine items of medication including citalopram, amitriptyline, quinine and codeine. To prescribe citalopram alongside some of these drugs was contraindicated and his prescribed daily dose of citalopram was higher than the recommended maximum. There was a factual dispute between the treating doctors and the claimant regarding these prescriptions. In summary the doctors stated that they had explained the serious risk to the heart and risk of death to him in straightforward terms. The claimant’s evidence was that the doctors had spoken in medical jargon and failed to convey that there was a serious risk. Her position was that the prescribing doctors should not have shifted responsibility by asking the deceased to consent to the continuing over-prescription.
There were two main candidates for the cause of Mr McDonnell’s death. The first was the mixture of medication he was taking and the role of the 15 codeine tablets he had taken on the day of his death. The second was a vaso-vagal event. The Assistant Coroner found that the death was from a combination of both potential causes, citing a “fatal cardiac arrhythmia triggered by a vaso-vagal event in the presence of excessive codeine, together with citalopram, amitriptyline and quinine at levels consistent with prescribed medication.” She concluded the death was by “misadventure”.
Mr McDonnell’s widow was not satisfied with these findings or the narrative conclusion and so applied under s.13 Coroners Act 1988 to quash the inquest. She argued that the coroner was not entitled to have found that an overdose of codeine contributed to death, as this was inconsistent with the post mortem evidence, nor to have found that the deceased had given his consent to the citalopram being prescribed alongside the other contraindicated medication.
Her challenge failed:
"That a different coroner might take a different view of the evidence does not mean that it is in the interests of justice to hold a new inquest.”
- Details
- Written by Bridget Dolan QC
Secretary of State for the Home Dept v Senior Coroner for Surrey [2016] EWHC 3001 (Admin) 23 November 2016 (judgment here)
Senior Coroners still smarting from being described as holding "a relatively lower judicial office” by Mr Justice Singh in the Norfolk Coroner v AAIB case last month have now been dealt a second blow by Cranston J when he made it very clear that not only are Senior Coroners, as a category, not among those able to see sensitive material related to issues of national security, but that the Secretary of State can rely upon the assertion of a general policy not to provide Coroners with such material and so does not have to provide any evidence that disclosure to the particular Coroner will in itself result in a real risk of serious harm to national security.
When Alexander Perepilichnyy, a Russian national, died suddenly in November 2012, while jogging near his home in Surrey, the circumstances aroused suspicion in some as to whether he had been unlawfully killed by agents of the Russian state due to his alleged role in helping to uncover a major fraud.
During the course of his investigation into Mr Perepilichnyy’s death, the Senior Coroner had issued requests for evidence directed at the Security Service and the Secret Intelligence Service.
In an “unprecedented” application the Secretary of State applied to the High Court for an order permitting the non-disclosure of documents to the Senior Coroner in the inquest proceedings on the ground that such disclosure would damage the public interest.
The Secretary of State had refused to allow the Senior Coroner, who did not have developed vetting (‘DV’) security clearance, to view the original material. Although the Senior Coroner accepted that there was material which he was not able to review because of its sensitivity; he had appointed DV security cleared counsel who the government agreed could view the information and provide an anodyne gist to him. The confidential gist was prepared at a level of generality to enable the Senior Coroner to consider the material with his counsel. The Secretary of State then made a PII application in respect of the gist, but the Coroner considered that the submissions made on he behalf in relation to the application were inadequate, as they were not supported by evidence. The Senior Coroner informed the Secretary of State that he required a PII application by way of a Ministerial certificate; a Ministerial certificate was duly provided however rather than being limited to the gist it covered the entirety of the material which meant that the Senior Coroner was unable to see it, consequently he was unable to determine the PII claim.
The Senior Coroner accepted that he could not now determine whether the PII claim was properly made because he needed to see the disputed material in order to conduct the balancing exercise required. The question for the High Court was whether that Court should exercise its jurisdiction to consider the Secretary of State’s PII application in the circumstances.
- Details
- Written by Bridget Dolan QC
Re JS (Disposal of Body) EWHC 2859 (Fam) 10 November 2016
Last month saw the three Brexit judges on the front pages, unfairly lambasted by the media just for doing their jobs properly. It’s a shame that the press who seem, on the whole, to rather like this latest Family Court decision, haven’t sought to make Mr Justice Peter Jackson their cover star this month, this time with a huge respect for a judge who has done his job extremely well. In a clear, concise and incredibly sensitive judgment – superbly drafted not only in what it says, but in how he makes inferences about those matters that he doesn't explicitly describe – Peter Jackson J has dealt with what must be one of the most difficult and tragic cases to come before the courts this year.
The case has been hailed in the headlines as a victory for “the right to be cryogenically frozen” although if the sub-editors had bothered to read this admirably plainly written judgment properly (which you can read here) they would find that Jackson J confirms exactly the opposite.
There is simply no right of anyone, child or adult, to determine what happens to your own body after you die. Your dead body is not your own property to be disposed of by your will. The decision will always be left in the hands of others.
As an adult you can of course write a will, name your own executors, express your wishes and then hope that you have chosen your executors wisely. Happily, in most cases the people you have nominated will obey your wishes and dispose of your body as you have asked; but if they decide not to comply with your request there is little you can do about it.
- Details
- Written by Ed Pleeth
The principle of open justice, allowing pubic scrutiny of how citizens come by their deaths, is at the core of the inquest process. Save in exceptional circumstances[1] Inquests should be heard in open court with the media able to fully report the proceedings.
“The names of those who are born and those who die are rightly a matter of public record. The fact that someone has died is always a matter of proper public interest and the ability to record it is a normal incident of society.”[2]
Readers will be familiar with Coroners’ powers under Section 39(1) of the Children and Young Persons Act 1933 to restrict reporting of the name of a child who is a witness or an IP. However Coroners have very limited alternative powers to protect the vulnerable who are not themselves an IP or witness at the inquest.
In exceptional cases, High Court judges have powers to make or extend a Reporting Restrictions Order (RRO) to protect others, such as family members of the deceased, from unwelcome press attention (see earlier UK Inquest Law Blog post here re an RRO made in the Court of Protection in anticipation of an inquest).
However another often overlooked provision applicable to Coronial proceedings, and used effectively in a recent inquest, is Section 1 Sexual Offences (Amendment) Act 1992.
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- Written by Katie Gollop QC
R (on the application of Secretary of State for Transport) (Claimant) v HM Senior Coroner for Norfolk (Defendant) & British Airline Pilots Association (Intervener) [2016] EWHC 2279 (Admin)
Readers of the UK Inquest Law Blog need no reminding that prior to the Coroners and Justice Act 2009, coroners had no power to order disclosure of any document so that if disclosure was required, an application had to be made to the High Court. The immediate point for the Divisional Court to decide in this case was the correct interpretation of the powers of coroners to require a person to produce documents (paragraph 2 of Schedule 5 of the 2009 Act).
The involvement of the Lord Chief Justice indicates that there is a point of general importance.
- Details
- Written by Bridget Dolan QC
R (Maxine Hamilton-Jackson) v HM Assistant Coroner for Mid Kent and Medway [2016] EWHC 1796 (Admin) (decision 19.7.16 here)
The absence of opening or closing speeches at inquests means that the need for clarity when summing up is all the more important. The jury must know clearly what they need to find as facts in order to justify any conclusion and, as the Chief Coroner has put it:
“Coroners, however well intentioned, should do their best in directing a jury to avoid using language which is not in everyday use, language which may not be clearly understood”.
So what are an inquest jury to make of being told they need to decide whether or not there was a failure of a prison system or in the operation of a prison system, by “polarising the dichotomy between: is it mandatory to open an ACCT when a particular event occurs or is it mandatory to open an ACCT when the relevant official considers there is a risk of suicide or self-harm?”
Quashing the jury’s response to just one part of the jury questionnaire in this case, the Divisional Court has held that not only was there a misdirection, because the jury could not be clear what they were being asked to decide, but also re-iterated how the meaning of a policy is not a matter of fact to be determined by the jury, but is a question of law to be determined by the Coroner.
- Details
- Written by Bridget Dolan QC
R (Tyrrell) v Senior Coroner for Durham & Darlington [2016] EWHC 1892 (Admin)
(26.7.16 decision here)
Around two thirds of the 250 deaths in prison each year are from a naturally occurring cause. In a decision that will be warmly welcomed by Coroners, the Divisional Court has now determined that there is no obligation to hold an Art 2 inquest into such deaths unless there are grounds to believe that there was some failure in the healthcare provided by the state.
This case in which the Claimant’s arguments were described as being advanced at a “high level of legal abstraction” is happily a victory for pragmatism and common sense.
Were it otherwise Coroners would be obliged to conduct a large number of ‘Article 2 inquests’, to no discernable benefit of anyone and despite it being abundantly clear before the hearing that nothing untoward had taken place.
- Details
- Written by Bridget Dolan QC
Burke-Monerville v HM Senior Coroner of Inner North London
Application for urgent relief High Court: Fri 8 July
The trend of recent decisions in the High Court has been a general reluctance to hear challenges to coroners' procedural decisions prior to the end of an inquest. Whether the proceedings have or have not been substantively or procedurally unfair is an issue that is best determined after the end of the hearing when the totality of the proceedings and the evidence can be considered.
It is unsurprising therefore that this urgent application for an injunction seeking to prevent an inquest going ahead on a Monday morning was refused in an extempore decision delivered at midnight on Friday.
Cheryl James Inquest - Deepcut Barracks - factual findings and a conclusion of ‘suicide’ handed down
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Bridget Dolan QC and Jamie Mathieson were counsel to the inquest into the death of Private Cheryl James in 1995 at Deepcut Barracks which ended on 3 June 2016. The judge’s 100 page findings of fact, addressing the circumstances of the death and the culture and procedures at the camp, can be found here.
John Beggs QC and Cecily White acted for Surrey Police. Paul Spencer of Serjeants' Inn Chambers also represented a medical witness at the hearings.
