R (Gorani) v Assistant Coroner for West London [2022] EWHC 1593, 22 June 2022 (judgment here)
A complete smorgasbord of complaints were adjudicated upon in this recent High Court decision, with the coroner victorious on every point. There is much in the judgment for the reader to feast upon: the headline tasters served up by the Divisional Court are that –
- The Article 2 general duty is not concerned with individual errors within an adequate system;
- Article 2 being engaged by one aspect of a case does not mean every aspect of the case must be investigated by applying the Art 2 standards;
- A coroner interjecting in counsel’s questioning is not in itself a demonstration of bias by a coroner who is entitled to properly manage the progress of evidence;
- For an error of fact to be justiciable in law it must not only be mistaken, but established uncontentiously and be a material part of the reasoning. Simply disagreeing with a coroner’s conclusions on the appropriate inferences to be drawn from the facts is an inadequate ground for Judicial Review;
- A coroner need not hear any submissions of IPs regarding PFD matters, it will often be helpful to invite submissions, but there is no obligation to do so
- Judicial Officer holders should think twice before they enter the fray. Their reasoning should be apparent in their initial decision and not need explaining to the court in an ex post facto witness statement
Perhaps most importantly this judgment is a reminder that the inquisitorial nature of an inquest means that a coroner is entitled to robustly inquire into the evidence and is not required to blandly accept any witness’ assertion without testing it.
Coroners are entitled to form preliminary views on the basis of the evidence they have read and heard, and to test that against the witnesses’ oral evidence. What were said by the Claimant to be ‘leading questions’ of a witnesses by the coroner, were, in the view of the court, a legitimate approach of seeking to understand a witness’ evidence, by summarising it, testing it and putting it in context. There can be no complaint about a coroner conducting an inquisitorial process asking any such questions. As the court put it “the coroner was obliged to approach the inquiry with an open mind, but not with an empty one”.
The background
Mr Sylaj took his own life very shortly after he had been disciplined and dismissed at work. In the year before his death he had received psychiatric treatment for his stress anxiety and depression from his GP and the Home Treatment Team at his local Mental Health NHS Trust. In the week before his death Mr Sylaj’s family had again sought help from the single point of access (‘SPA’) at the NHS Trust. That call was not triaged as it should have been and so he was never spoken to, however the following day Mr Sylaj saw his GP who assessed him and referred him for psychotherapy. The next day he was dismissed at work. Mr Sylaj fell to his death from a fifth floor balcony four days later.
Was Article 2 actually engaged ?
At pre-inquest review hearings the coroner twice decided that Art 2 obligations were not engaged in this inquest, but she capitulated when the family argued the point a third time in a pre-action protocol letter for judicial review. It was asserted by the Claimant (and now accepted by the coroner) that there had been an arguable systems failure when the deceased was unable to speak to a mental health professional at the SPA because of a lack of an available clinician and his telephone number not being taken to ensure a clinician could ring him back.
Mr Justice Garnham expressed some surprise that the coroner held that any of the events surrounding this death engaged Article 2, saying it was “far from obvious” why the SPA’s actions even arguably engaged the state’s systems duty. A consistent line of authority (indeed eight cases are cited in the judgment) makes it clear that the systems duty is not concerned with errors by individuals to operate a system – and there was on the face of it a perfectly adequate system in place here, as the coroner had initially recognised.
Nevertheless the Art 2 decision was now one of the few things that wasn’t being challenged about this inquest. What was challenged was the coroner’s alleged failure to investigate every aspect of the case in the depth that Art 2 might require.
The court was clear, however, that the fact that a coroner declares that an inquest will serve to meet the state’s ECHR obligation to investigate a death, does not trigger an obligation on the coroner to investigate every aspect of the case to the standards of Article 2. The obligation under Art 2 and within s5(2) CJA 2009 requires an investigation “where necessary” to ensure compliance with the Convention’s procedural duty. A coroner having ruled that a particular issue engages Article 2 limits the scope of the Article 2 inquiry to that same issue, it does not open a doorway into an Art 2 compliant investigation of every aspect of the case. The coroner retains a wide discretion as to the scope of their investigation and is not obliged to investigate every issue raised by an interested person.
Was the coroner apparently biased?
The Claimant however was dissatisfied with the outcome of this Art 2 inquest and submitted that the conduct of the coroner’s questioning and her general demeanour gave the appearance of bias against the family and that she should have recused herself. The Claimant asserted that the coroner had ignored the evidence of a witness, substituted a witness’ answer for one of her own, questioned a witness in a manner that demonstrated an appearance of bias in favour of medical witnesses, or against the family of the deceased.
Having undertaken a careful reading of the entire transcript, the Divisional Court could detect absolutely nothing to support such a conclusion. There was no merit either generally or in any of the specific examples to which the Claimant pointed (which are helpfully set out in detail in the judgment if you wish to come to your own view) to sustain this ground.
Addressing the court on PFD reports
The Claimant ‘s final ground of challenge related to the fact that no Regulation 28 (Preventing Future Deaths or ‘PFD’) report had been issued. She submitted that the coroner made an error of law, by deciding that a PFD report was not required without first hearing any submissions from the interested parties.
This argument had no apparent foundation in law. The duty to make a report fell on a coroner who came to their own view that a risk of future deaths persisted, and – as the Chief Coroner’s guidance no. 5 (here) makes clear – hearing representations from the IPs on a PFD issue is optional. It may be helpful to invite and consider submissions, but there is no obligation to do so.
Neutrality of Judicial Office holders: A final warning
Even though the coroner here had won the battle on every point, the court nevertheless seemed unimpressed with her entering the fray.
Garnham J took time at the beginning of his judgment to underline the fact that a coroner is a judicial office-holder, and as such the “normal course” for a judge or other judicial office-holder facing a judicial review is to adopt a neutral stance in the proceedings (if they appear at all) and not to take up the cudgels as a party to defend their decisions. There will be no criticism of a coroner who appears simply to offer the court assistance on matters of procedure or specialist caselaw. But here, in contrast, the assistant coroner not only appeared by counsel to oppose the application, but submitted a witness statement in support of her own case that sought to explain her reasoning and respond to the grant of permission to bring the proceedings.
In these unusual circumstances the court commented that it had chosen to disregard the coroner’s witness statement. Garnham J emphasised that a coroner’s reasoning ought to be apparent from her decision and an ex post facto explanation should not be needed. Furthermore, a coroner who does choose to enter the arena in this way will put herself at risk of a costs should she lose the claim.
Having won on every point however the assistant coroner is now entitled to seek to recover her own costs. It remains to be seen if she will succeed in that final skirmish.