Re: The inquest into the death of Helen Bailey [2018] EWHC 3443 (Admin), 12.12.2018
It is “elementary that the emergence of fresh evidence which may reasonably lead to the conclusion that the substantial truth about how an individual met his death was not revealed at the first inquest, will normally make it both desirable and necessary in the interests of justice for a fresh inquest to be ordered”. So stated the Lord Chief Justice when ordering the fresh Hillsborough Inquests[1].
It might then be thought that a Senior Coroner overturning their own (or their predecessor’s) inquest on the grounds of significant fresh evidence pointing to the death being a homicide would be a simple process: after all the Coroner is hardly likely to have misjudged the importance of that new evidence recently revealed. Yet the cumbersome requirements under s.13 Coroners Act 1988 mean that a Senior Coroner who believes that justice requires a fresh inquest must still follow the time consuming two stage process of, first, applying to the Attorney General’s Office for permission to make an application[2] and once that permission is inevitably granted, follow a second and separate process of making an application to the High Court.
In this recent case, where the Senior Coroner was seeking to overturn an inquest held in 1976 by the previous holder of her office, there was no defendant to consent to the application and the court seemed to not consider that it could be dealt with more expeditiously on the papers alone, and so a degree of delay occurred whilst time was found to list an oral hearing before a Divisional Court.
Despite the repeal of many sections of the Coroners Act 1988, Parliament retained the section 13 provision. Review and revision of that section is clearly overdue. Of course a permission stage is a useful filter to keep unmeritorious or crack-pot applications out of court. But surely the Attorney General already has enough on his plate without needing to review all Senior Coroners’ applications for fresh inquests?
At very least the need to seek a fiat might be dispensed with when it is the Senior Coroner who makes the application for a fresh inquest. Such a step would reduce both the Coroners’ administrative costs and the delay for bereaved families who are kept waiting for the full picture of how their loved one died to be revealed.
A process that was perhaps useful 30 years ago, when challenges to inquests were infrequent, now simply stands in the way of speedy justice.
The facts
Helen Bailey was eight years old when in, August 1975, her body was found in dense woodland near her home. The side of her throat had been cut and her jugular vein was perforated. At the inquest the following March a Home Office pathologist reported on his post mortem examination stating that there did not appear to be any evidence of a struggle, or manual strangulation. He described the wound on Helen’s neck as “a shallow cut”. He said that he had a lot of experience of the victims of murder with serious injuries to the neck; and the circumstances of Helen’s death lacked the essentials and hallmarks of a homicidal attack. He considered that it may have been an accident or a practical joke that had gone wrong, the latter being his preferred explanation. The jury returned an open verdict, “there being insufficient evidence to say when, where and by what means she came by her death”.
Three years later a psychiatric patient gave a confessional account to healthcare professionals. He said that he had strangled Helen but, realising that she was still alive, he had then cut the side of her neck with a penknife. That account, which did not reflect the expert account of the death at the time, does not appear to have been pursued.
Subsequent police review
In 2014 a police review of Helen’s death sought another Forensic Pathologist’s opinion. Having reviewed all of the available documentary and photographic evidence that fresh expert disagreed with the characterisation of the cut to Helen’s neck as ‘shallow’. He noted typical signs of asphyxia, including petechiae in the skin of the face, eyelids and forehead: a recognised sign of manual compression of the neck. In that expert’s opinion this was “a clear case of homicide”, with Helen being strangled before her throat was cut when she was either unconscious, already dead or dying.
This was, of course, consistent with the earlier confessional account. However, following the re-investigation, the CPS decided against bringing a prosecution and so the police approached the Senior Coroner requesting that she apply for a fresh investigation and inquest.
“a clear case of homicide”
On 14 March 2018, the Attorney General gave his fiat, but it took a further nine months until the Divisional Court listed the oral hearing at which the judges unsurprisingly granted the unopposed application. A fresh inquest into Helen’s death will now be held.
The future
The Chief Coroner in his 2018 annual report[3] has recognised that the s.13 process, as codified in 1988, is now out of date. He notes how the High Court’s only power is to quash an inquisition and order a fresh investigation and inquest, he advocates that the powers under s.13 should be amended to give the High Court discretion to substitute its own conclusion in uncontentious cases, thereby avoiding the need for a fresh inquest hearing (a remedy only currently available if the challenge is by way of judicial review).
The amendment proposed is by the addition of a new section 13A:
13A Where by virtue of the discovery of new facts or evidence or otherwise the High Court is satisfied that it is neither necessary nor desirable in the interests of justice that a fresh investigation or inquest should be held into the death, the High Court may direct that the particulars of the Record of the Inquest (Form 2, Schedule, Coroners (Inquests) Rules 2013) be amended as appropriate.
This change was agreed by the Ministry of Justice in principle as long ago as December 2013, but there is apparently ‘no Parliamentary time yet available’.
If the statute is to be re-considered then surely removing the requirement for a Senior Coroner to seek the authority of the Attorney General to make a s.13 application would be another simple and welcome amendment.
Furthermore, unlike judicial review cases there is no s.13 process for conceding a s.13 application by means of a formal ‘consent order’ because the court must be satisfied the s.13 test is met. However, as a practice point, this bloggers more recent experience is that where a signed ‘agreed order’ submitted with the application indicates that the Coroner and all IPs support the application for a fresh inquest, then a decision on the papers can be made more swiftly by a single judge.
Footnotes
[1] Attorney General v HM Coroner of South Yorkshire (West) [2012] EWHC 3783 (Admin).
[2] Known as a ‘fiat’, which is obtained by drafting a ‘memorial’ document setting out the reasons why a fresh inquest is being requested. This is then considered by the Attorney General’s office who must issue the fiat before any High Court application may be made.
[3] The Chief Coroner’s fifth annual report to the Lord Chancellor (under section 36 of the Coroners and Justice Act 2009) published 13 December 2018.
Bridget Dolan QC represented the Senior Coroner for Birmingham in the Divisional Court.