Whilst many will be unsurprised to be told that a fresh inquest cannot reach a verdict inconsistent with an earlier homicide conviction, it is nevertheless reassuring to learn that a statutory lacuna on this issue has now been firmly filled by the Divisional Court in this recent case.
The relevant part of the CJA 2009 clearly states that if an inquest is suspended and later resumed after a homicide conviction the conclusion of the inquest may not be inconsistent with the criminal jury’s determination. This recent challenge arose in the context of a situation not addressed in the statute: where a wholly fresh inquest was to be held.
The background
A coroner had concluded that Susan Nicholson had died an accidental death in 2011, however, after her parents’ campaign for a re-investigation, Robert Trigg was convicted of her murder some six years later. The Senior Coroner consequently obtained an order under s.13 Coroners Act 1988 quashing the original inquest and requiring a fresh investigation and inquest to be held.
When the Senior Coroner determined that Art 2 procedural obligations were not engaged at the fresh inquest Ms Nicholson’s parents brought a successful judicial review challenge; the core issue being whether police shortcomings were such that an Art 2 compliant investigation was now required (see our companion blog here). However, in the course of those JR proceedings the murderer himself issued an application notice seeking to challenge an earlier ruling by the Senior Coroner that the fresh inquest was bound to reach a conclusion which was consistent with the conviction, namely unlawful killing.
The Claimants, the Coroner and the Chief Constable together argued that Trigg’s application was both unmeritorious and procedurally impermissible – being brought by application notice rather than a claim form and when well out of time. The court agreed that the challenge was procedurally flawed and too late, but acceded to the Senior Coroner’s request that the application should also be determined on the merits, in order to provide guidance for the future conduct of inquests.
The law
Schedule 1 CJA 2009 makes provisions regarding the suspension and resumption of investigations. Broadly speaking suspension is required when criminal proceedings for a homicide offence are brought before an inquest has been concluded. Para 8(5) of the schedule deals with the resumption of suspended investigations. It provides that the conclusion of a resumed investigation may not be inconsistent with the outcome of the criminal proceedings by reason of which the investigation was suspended.
The court agreed with the Coroner that the legislative wording neither expressly nor impliedly covered a fresh inquest following a criminal prosecution, a situation that can occur when an original inquest has been quashed.
However, the public policy rationale for a prohibition on an inquest arriving at conclusions which are inconsistent with the outcome of criminal proceedings regarding the same death was obvious. If such a prohibition did not exist an inquest could be used to try and undermine conclusions reached to the criminal standard of proof in the criminal jurisdiction. Such a collateral attack on a conviction would be an abuse of process. It was offensive to the administration of justice and the rule of law to relitigate a criminal conviction. If a criminal defendant disputed the basis of his conviction then his proper remedy was to appeal. If his appeal against conviction failed there was no reason in law or policy why he should be given another opportunity to try and re-open such matters via an inquest. To permit otherwise would fail to respect the criminal jury’s role and conclusion.
A fresh inquest cannot reach a verdict inconsistent with an earlier conviction.
What if there is an acquittal?
The Court declined to address the academic issue of whether the analysis should be the same in the event of a prior acquittal. A very heavy hint was given though, by the Court noting that an acquittal by a jury in a criminal trial does not depend on the proof of an affirmative proposition (to any standard).[1] A decision in a criminal case of acquittal in favour of a defendant is not inconsistent with a decision against that defendant in a civil case, or at an inquest, when arrived at on the balance of probabilities.
Footnotes
[1] Per Lord Diplock in Hunter v Chief Constable [1982] AC 592, at page 543B.
Bridget Dolan QC of Serjeants’ Inn Chambers was instructed on behalf of the Senior Coroner