Generally coroners will not be involved in a case until the fact of death is clear (advance consultation in organ donation cases perhaps being the notable exception). But for those rare times when there may be a dispute about whether a death has or has not yet occurred, so as to trigger the coroner’s jurisdiction, Mr Justice Peel has provided helpful guidance on this area of law and how an application for a declaration of death might be made.
No Art 2 duty owed when a person with capacity exposes themselves to danger
In the context of Article 2, the State’s obligation to take appropriate steps to safeguard the lives of citizens is a constantly evolving jurisprudence. The categories of cases giving rise to the duty are not specifically defined and can never be regarded as closed.
However, as the Court has underlined many times, Article 2 cannot be interpreted as guaranteeing to every citizen an absolute level of security in any activity in which the right to life may be at stake, particularly when the person concerned bears a degree of responsibility for the events, having exposed himself or herself to danger.[1]
In this latest judicial review decision, the High Court has drawn a line in the sand by clarifying that even where a public body is aware of a real and immediate risk to a person’s life and health and social care professionals have drawn up care plans to ameliorate that risk, the Art.2 duty may still not arise. Helping and supporting an individual, even in the discharge of a public body’s legal duties, does not routinely give rise to the operational Art 2 duty to protect life. More is required than merely offering services to the person that might assist in ameliorating a known risk of death.
The key to when the Art 2 duty will arise remains the Rabone indicia which need to be considered in the specific factual context of the case.
Death after asbestos exposure: Correlation is not causation (again)
HM Area Coroner for Cumbria v Leech [2023] EWHC 3476 (Admin)
In the wake of the Wandsworth decision (see our earlier blog post here) in which the High Court emphasised how correlation is not causation when dealing with a death from mesothelioma, those who read the above judgment from a s.13 application will be forgiven for scratching their heads wondering when, if ever, a death from lung disease where there was a clear work history of asbestos exposure alongside asbestos fibres being found in the lungs at autopsy, might be safely considered to be a death from ‘industrial disease’.
Advocacy opportunities for junior counsel: Cross-jurisdictional guidance that Coroners should note
A 2021 study from the University of Surrey School of Law looking at gender and seniority of counsel before the UK’s highest court[1] (here) has shown that women are under-represented as leading advocates, especially in major civil and Business and Property Courts litigation before the Supreme Court. Whilst there are some reassuring findings within the study, particularly the overall positive trend in increasing representation by female counsel, there remain stark variations between areas of law.
Seemingly prompted by that study, Dame Sue Carr, the first ever Lady Chief Justice of England & Wales has, within a month of being sworn in, published guidance aimed at redressing the gender balance by providing junior counsel in general, and female junior counsel in particular, better opportunities to advance oral argument in courts and tribunals. In recognition of the importance for career development of being given the opportunity to present legal arguments to the court, the guidance is cross-jurisdictional, being co-authored by the President of every significant judicial division, including the Senior President of Tribunals.
The guidance (here) is now three months old, although, anecdotally, it seems many Coroners are not yet aware of its content. Whilst coroners don’t (yet) have the status of judges so as to fall under the Lady Chief Justice’s authority, it is nevertheless guidance from the highest judicial levels aimed at all judges and tribunal chairs, and so something of which all Coroners should want to be aware.
Mere bystanders? Obtaining the criminal records of lay inquest witnesses
Henry Gargan’s and Edward Butler’s Application [2023] NIKB 103
Although often overshadowed by the Bloody Sunday killings a few weeks earlier, the Springhill killings of 9 July 1972 still stand out as one of the most notorious events during the troubles. The five people shot dead in Belfast that day included three teenagers and a Catholic priest, who was said to have been waving a white flag as he went to try and assist one of the injured children.
The victims’ families considered that they were targeted and killed by soldiers who used unjustified and indiscriminate force on unarmed civilians. The army account was that the victims were caught in cross-fire when IRA gunmen shot at soldiers who used legitimate and justified force at a time of heightened tension in response to specific threats.
The original inquest into the five deaths, held in 1973, provided no closure when it returned an open verdict. Against that background the fresh inquest ordered by the Attorney General was always going to be a source of controversy. The particular issue that arose for consideration in this judicial review claim was whether a Coroner obtaining the criminal records of witnesses who were at the scene of a death was a reasonable and proportionate step within coronial discretion or a disproportionate action that hampered the statutory function of the inquest through the chilling effect discouraging witnesses from coming forwards?