Coronial bias: A predisposition is not a predetermination

In the matter of Downey [2021] NIQB 108 (here)

There is much to be learned from this recusal application, that was founded on the Coroner having allegedly expressed a decided view regarding an important legal point before he had received the written submissions he had invited on the issue.

Despite a High Court judge initially having ‘significant concerns’ about the events, the judge eventually accepted the Coroner’s explanation that his having stated an, apparently, concluded view on the applicability of Art 2 in correspondence with the Legal Services Agency, was merely a ‘poor choice of words’, and that he had not actually predetermined the matter.  As such, the application that the Coroner should recuse himself from further involvement in the inquest failed.

The judgment is worthwhile reading, with much opportunity for vicarious learning for Coroners in the fascinating twists and turns of not making an Art 2 decision. For the inquest lawyer Northern Ireland’s newest High Court judge provides an extremely detailed and helpful guide to the key legal principles in play if making an application for recusal on the grounds of bias allegedly shown by predetermination of an issue.

A Coroner may not use protected material from an aircrash investigation that has been deployed in public in a criminal trial

Senior Coroner for West Sussex v (1) Chief Constable Sussex Police (2) Secretary of State for Transport (3) Mr Hill [2022] EWHC 215 (QB) (judgment here). 4 February 2022

The Shoreham Aircrash in 2015, its investigation by the Air Accidents Investigation Branch, (published in 2017) and the ensuing criminal trial (concluding in 2019) have produced a highly unusual, if not unique, set of circumstances with layers of legal complexity when it comes to the conduct of the subsequent coronial investigation.

The Norfolk[1] case in 2016 had already established that a coroner would not be entitled to obtain material or statements obtained by the Air Accidents Investigation Branch (‘AAIB’) for the purposes of a coronial investigation unless there was evidence that the AAIB investigation had been defective in some way.[2]  AAIB material is protected from disclosure to anyone by a raft of measures including an international convention given effect by EU and national regulations.[3] The Divisional Court in Norfolk was clear: given the AAIB, as an independent state entity, has the greatest expertise in determining the cause of an aircraft crash, there is no public interest in having unnecessary duplication of investigations or inquiries. A coronial investigation need not go over the same ground but should accept the findings in an AAIB report and use these to answer the statutory questions that a coroner must consider as to how an aircrash victim came by their death.

In this recent judgment the High Court has now determined that the strength of the protection of material collected by the AAIB is such that the Senior Coroner was not even entitled to obtain or use material that might elucidate the cause of the crash, even when it had already been deployed in public, in a criminal trial.

Specifically, the Shoreham Aircrash pilot had captured Go-Pro video footage of the crash flight on his own camera that he had placed in the plane’s cockpit.  The footage had been shown to the criminal jury who had acquitted him of gross negligence manslaughter.  Even though the pilot himself now wished to rely upon those video images for the purpose of the inquests, the Coroner was not permitted to obtain them.  Expert reports produced for the criminal trial that interpreted the video footage were also all off limits to the Coroner.   Furthermore, the Coroner was even prohibited from using the official trial transcripts of the evidence given by the defence and prosecution experts at the criminal trial in so far as those transcripts made any reference to the Go-Pro video footage.

Art 2 Inquests: Local Authority care is not state detention – but having a wide scope whilst keeping an open mind is a good idea

R (Boyce) v HM Senior Coroner for Teesside and Hartlepool (and (1) Middlesbrough Borough Council (2) Tees Valley Care Ltd) [2022] EWHC 107 (Admin), 21.1.22

There can be no dispute that Article 2 procedural obligations will extend to all violent deaths and suicides of those in state detention, such that a full Article 2 inquest must automatically follow such a death. But it was a step too far to suggest that a child in care who had been placed in a care home by a Local Authority was in state detention. The child in this case had been placed in a private care home. The child was not detained at the care home, and that home was not, in the judge’s view, a functional public authority that might owe ECHR obligations to its residents.

Furthermore, the Claimant’s argument that the Coroner had erred in law when she suggested that there was no difference between the scope of this non-Art 2 inquest and an Art 2 inquest was not sustainable. The scope of Art 2 and non-Art 2 inquests were not necessarily different, a Coroner conducting a non-Art 2 inquest could choose to look at the same circumstances that an Art 2 inquest must cover.

You should read the Record of Inquest as a whole

R (Bilski) v Her Majesty’s Coroner for Inner West London [2021] EWHC 3339 (Admin)

It was perhaps more in hope than expectation that the Claimant sought an oral permission hearing in this judicial review claim, where the main issue in contention was the adequacy of a single box within the Record of Inquest form (‘ROI’). It seemed there could be no question that the necessary statutory determinations had been made by the coroner following an inquest. Furthermore, those determinations had been fully recorded on the ROI. The Claimant’s grievance was that the coroner’s findings appeared in the wrong part of the ROI form. Two High Court judges in turn found that this contention was simply unarguable. It will not justify a fresh inquest just because a determination has not been written in a particular box on the ROI.

Justice delayed is justice denied: an ‘unreasonable’ open verdict requires a fresh inquest 32 years later

Earl v Senior Coroner for East Sussex [2021] EWHC 3468 (Admin), 21.12.2021

When 22 year-old Jessie Earl disappeared in 1980 it was inexplicable to her parents that this very happy, family loving art student would just walk away from her home, her studies and her life. The suggestion by a police officer that Jessie had somehow obtained another passport (hers was still at home) and left the country was, to say the least, fanciful.

Nine years later, when Jessie’s skeletal remains were found hidden in virtually inaccessible scrubland, it shouldn’t have taken Sherlock Holmes to work out that foul play was the highly likely explanation for Jessie’s disappearance. The cause of Jessie’s death was, by now, unascertainable, although there was some brown staining over the right temporo-parietal bone, which might have been blood staining. None of Jessie’s clothes or personal items were found, save for Jessie’s bra which had been tightly knotted and fashioned such that, in the opinion of the pathologist, ‘both wrists of the individual may have been tied together by this brassiere‘.

An expert in the craft of knots also reviewed the knotted bra and informed the police that it was similar to impromptu handcuff contrivances commonly found on victims at scenes of crime. The knot was very tight and at some point had been subjected to considerable force. The tightening of the knot was not down to prolonged exposure. It was more likely the result of the knot being tied tightly, or subjected to struggling, or loaded with a weight (e.g. suspension or dragging).

Despite all this evidence, the elementary deduction that this was a homicide somehow escaped both the police officer in charge of the investigation and the East Sussex Coroner.