R (Makki) v South Manchester Senior Coroner and Molnar  EWHC 80 (Admin) 20 Jan 2023 (judgment here)
Yousef Makki was only 17 when he died as a result of a single stab wound to the chest from a flick-knife which had been wielded by another 17-year-old, Joshua Molnar during a confrontation.
When Molnar was acquitted of homicide by a criminal jury the Senior Coroner decided to hold an inquest examining the circumstances of the death. After hearing five days of evidence the coroner concluded that there was insufficient evidence to determine whether the killing had been lawful or unlawful, and so returned a narrative conclusion indicating that Yousef had died from “complications of a stab wound to the chest. The precise circumstances in which he was wounded cannot, on the balance of probabilities, be ascertained.” This narrative finding was, to all intents and purposes, an open conclusion.
There is nothing wrong with a coroner being left profoundly unsure at the end of an inquest. A coroner who has ‘striven hard’ to make a finding about the key issues and who explains the basis for arriving at the conclusion that it is not possible to make findings one way or another, will not be criticised for returning an open finding as a result. But the coroner must at very least explain properly why they have come to that position. In this case, however, the difficulty the Administrative Court identified was that the Coroner’s reasoning for her determination was not at all clear. As a consequence the inquest was quashed and is now to be heard again.
Yousef and another friend each were carrying a flick- knife when they had met up with Molnar and at some stage one of their knives was passed to him. Later that day Yousef and Molnar became involved in an argument in the course of which, according to Molnar, Yousef pulled a knife on him. Molnar claimed to have responded by pulling out the other flick-knife in self-defence, during the struggle he said Yousef had moved on to the knife he held and was fatally wounded.
Immediately after the events Molnar had told the police some outright lies about some strangers being Yousef’s attackers. He also gave inconsistent accounts of his own involvement such that it is unsurprising he was tried for both murder and, alternately, manslaughter. At the trial, he was acquitted of homicide although convicted of perverting the course of justice for the initial false account he gave at the scene.
After the criminal acquittal, the inquest resumed and Molnar, among others, gave evidence. At the end of the inquest, evidence the coroner set out a summary of the evidence she had heard. The findings of fact she made were interspersed throughout that summary, although they were not always explicitly described as such. Rather, her factual findings had to be discerned from the narrative (for example when she said “there is nothing to suggest that that account is incorrect”).
The coroner determined that the conclusions available to her were lawful killing, unlawful killing, accidental death, misadventure, open and a narrative. Ultimately, she returned to the narrative conclusion described above. This was, in the view of the High Court judges, effectively an ‘open’ conclusion.
Yousef’s father brought a judicial review claim in which his primary challenge to the Coroner’s decision was based upon her lack of analysis of the evidence. He submitted that she had failed to properly consider all the evidence in reaching her open conclusion and it had been unreasonable to find that there was insufficient evidence on the central issue, of whether or not his son’s killing was unlawful.
The Court found that the Coroner’s approach to weighing up the evidence had been flawed. One essential issue in assessing the lawfulness of the killing and Molnar’s claim of self-defence was who drew the knife first. The coroner had failed to address the facts relevant to this, which included the independent and objective evidence of Molnar’s aggression. She had also not noted the absence of any evidence of Yousef being the aggressor, beyond Molnar’s own account. Molnar’s credibility was significantly in issue, yet that point had not been tackled in the coroner’s findings, and so it was not clear how she had assessed the reliability of Molnar’s evidence.
The Chief Coroner’s Guidance No. 17 sets out a three-step process for coming to a conclusion, namely:
(1) To make findings of fact based upon the evidence;
(2) To distil from the findings of fact ‘how’ the deceased came by his or her death; and
(3) To record a conclusion, which must flow from and be consistent with (1) and (2) above.
This approach had not been followed. The reasoning behind her (lack of) findings was not clear in the coroner’s determination. Although she had summed up with an extensive narration of the evidence, and this showed the depth of her inquiry, it was insufficiently distilled to discern the facts that had been found. She had recounted evidence but without indicating what conclusions, if any, she drew from that evidence. She had not stated how any findings of fact she made were relevant to her ultimate determination regarding the stabbing, and in what respect. It was not possible to discern what consideration she had given to the necessary elements of self-defence.
Whilst it was acknowledged that the evidence did not necessarily all point in one direction, the Court could not be satisfied that the coroner had assessed all relevant evidence or analysed the findings of fact she made. If the coroner was left profoundly unsure then she had not explained why. A fresh inquest was therefore ordered before a different coroner.
This case once more emphasises the importance of giving sufficiently full reasons for one’s findings and conclusion. It is clear this was a difficult case to determine after a criminal jury had acquitted and where the evidence was not all one-way. But this made it all the more important to carefully analyse the possible conclusions by making clear factual findings and explaining the weight given to competing facts when navigating towards a conclusion. There was no criticism made of the extent and depth of the coronial investigation, but it is not sufficient to simply cite the evidence heard, one needs to indicate what conclusions, if any, are drawn from the evidence and why.
The three-stage process in Chief Coroner’s Guidance No. 17 provides a clear route map for doing this.
The courts will not be critical of a coroner who, having fully analysed and weighed up the evidence, is unable to come to a specific conclusion. In an inquisitorial jurisdiction, a finding that the evidence just does not reveal the answer is an acceptable finding, and so ‘open’ conclusions remain valid. But wherever possible coroners should reach a positive conclusion. As the guidance states “open conclusions are to be discouraged, save where strictly necessary…only used as a last resort, notably when the coroner [or jury] is simply unable to reach any conclusion on the balance of probabilities as between two competing verdicts.”
A Coroner is permitted to be left profoundly unsure at the end of the evidence, but they do need to explain why.