A death behind closed doors, but an Inquest in public

R (T) v HM Senior Coroner for the County of West Yorkshire [2017] EWCA Civ 318

A young woman arrived at A&E with her mother. They were carrying a shoebox. Inside the shoebox was the body of a baby girl.

The baby’s mother, aged 19, had kept her pregnancy a secret and delivered the child alone, in her bedroom six days earlier. She said she never heard a cry and did not know whether the baby had been born alive. She hid the body in a shoebox under the bed. Three days later her mother had discovered the box. The women then kept the events from other family members and waited out the weekend before taking the body to hospital.

Examinations by a pathologist and specialist neuro-pathologist left the death unexplained: there was no identified natural disease or injury. Nor could they decide whether the baby was alive at birth. The CPS reached the view that there was insufficient evidence to charge anyone with a criminal offence. The woman’s initial allegation that her conception had followed a rape was withdrawn after police investigations revealed a consensual sexual relationship.

When the Coroner proposed to hold an inquest into her baby’s death the young woman brought a case to the High Court, arguing that the Coroner had no such power and that her identity should be kept anonymous. She lost decisively on both counts.

“the conduct of the Claimant was not in any sense a private matter” 

The first issue was whether the Coroner had the power to hold an inquest given uncertainty over whether the baby had been born alive. A stillborn child or a miscarried foetus is not a ‘deceased person’ and there need not be an inquest. This is consistent with criminal law (under which destruction of a foetus is not a homicide) and medical law (where a foetus has no independent rights).

However, if a baby may have been born alive, an Inquest can be held. The Claimant’s argument that a Coroner cannot hold an inquest into the death of a child until it is established, on the balance of probabilities, that the child was born alive was decisively rejected. Editions of Jervis dating back to 1829 were dusted off to confirm that inquests may be held, and are held, when a baby may or may not have been born alive. The public interest in determining whether or not a child was born alive, and if so, how it came by its death is overwhelmingly obvious. Stillbirth is an available short-form conclusion and properly the subject of an inquest even if the investigation is likely to conclude the baby was never ‘born’. If the Claimant’s contentions were correct, there could be no inquest where it was possible, albeit unlikely, that a stillborn baby was born alive even in circumstances crying out for public scrutiny: as the Lord Chief Justice put it  this would be a ‘nonsensical’ outcome.

The second issue was the Claimant’s application for anonymity. Rule 11 of the Coroners’ rules and R (A) v HM Coroner for Inner South London [2004] Inquest Law Reports 81 confirm that the fundamental principle of open justice remains the default position even in the sometimes opaque jurisdiction of the Coroner’s court. But Coroners do have the power to order the identities of witnesses to be kept anonymous, a restriction enforced by s11 of the Contempt of Court Act. Any restriction, however, will require ‘cogent justification’. The Claimant’s fears must be objectively justified.

The Claimant relied on Articles 2, 3 and 8 ECHR. Supported by a general statement from an expert of honour based killing, she alleged that her she was in danger of reprisals from her family and wider community. Potentially good reasons, but unfortunately for her, not actually the case: ‘there was simply no evidential basis for relying on Article 2…there was no evidence to suggest that the naming of the Claimant would give rise to a risk (of violence)’. She had already moved away from the area and there was no credible evidence that when her name had been published when the inquest was opened there had been any threats as a result. There was then the balancing exercise between Article 8 and Article 10, a highly fact specific process, with the added dimension here that the Claimant’s name remained in the public domain through internet reports of the opening of the Inquest. But the court struck the balance decisively: ‘the conduct of the Claimant was not in any sense a private matter’.

The Claimant hadn’t stumbled into press attention because of the actions of others or a situation outside her control: she was ‘the central actor in what had happened’. The Claimant’s conduct was not a private matter; she had failed to report the child’s birth, concealed her body for six days, and made a false allegation of rape. It was right that what happened in her bedroom was ‘the subject for public discussion and debate on as fully informed a basis as is possible.’ The Coroner had the power to investigate and determine whether the baby may have been born alive – and if she was, the press should and would be able to tell the world what really happened behind closed doors.