Possible causation and Art 2 conclusions: Was Lewis possibly wrong?

Written by: Briony Ballard
Published: 17 June 2016

R (Tainton) v Senior Coroner for Preston and West Lancashire [2016] EWHC 1396 (Admin), 16.6.2016

The Court of Appeal in Lewis[1] made it clear that there is a power, but not a duty, to leave to an inquest jury findings regarding non-causative shortcomings which only may have led to or hastened death. A coroner has discretion to leave to the jury causes of death that are merely possible and not probable.

However the Divisional Court have now taken an interesting side-step around Lewis by deciding that, in an Art 2 inquest where a shortcoming has been admitted then, even if it is only possibly causative of the death, the jury should be directed to record it.

“Where the possibility of a violation of the deceased’s right to life cannot be wholly excluded, section 5(1)(b) and 5(2) of the 2009 Act should require the inclusion in the Record of Inquest of any admitted failings forming part of the circumstances in which the deceased came by his death, which are given in evidence before the coroner, even if, on the balance of probabilities, the jury cannot properly find them causative of the death.” [74]

Coroners Inquests and Reporting Restrictions

Written by: Bridget Dolan KC
Published: 29 April 2016

V v Associated Newspapers Ltd and others [2016] EWCOP 21

In November 2015 the Court of Protection determined that an adult woman had the mental capacity to decide whether or not to refuse the life preserving medical treatment offered to her. She exercised her right to autonomy, refused treatment and died.

Such capacity decisions are made on a regular basis in the Court of Protection (CoP) – however this particular decision in relation to ‘Ms C’[1] has attracted perhaps more widespread media attention than any other Court of Protection case before it. That reporting has been characterised by the Vice President, Charles J, as:

“reporting that engaged the prurient interest of the public in the personal details of the lives of others, rather than the public interest in important issues relating to [the court’s finding of capacity to decide and its consequences].”

The back-story of Ms C’s life and her personality is clearly of the type that sells newspapers. Ms C is now know to many as the “sparkling socialite” and pixelated pictures of her have appeared in both the broadsheet and tabloid press with epithets such as “man-eater” and “obsessed with sex” in the accompanying headlines.

Reporting restrictions were, unremarkably, made at the time of the original CoP case. However, what makes this case unusual is the family’s subsequent application for the press injunction to be continued after Ms C’s death and to cover press reporting from her inquest.

No PFD – what about a Paragraph 37 Letter?

Written by: Frances McClenaghan
Published: 6 April 2016

Inquests often reveal matters that are of concern but which are unlikely to give rise to a risk of future deaths and so fall outside the reg. 28 “Report on Action to Prevent Future Deaths” provisions (the ‘PFD report’). Yet it is often overlooked that where the duty to make a PFD report does not arise, the coroner still has another tool in their public health kit and may nevertheless draw attention to a matter of concern arising during the investigation by writing a letter expressing that concern to the relevant person or organisation who can act upon it.

Known as a ‘Paragraph 37 Letter’ such a step is proposed and approved by the Chief Coroner at paragraph 37 of his Guidance No. 5 (Reports to Prevent Future Deaths); yet it is only rarely used.

No permission required for public to take notes in court

Written by: Bridget Dolan KC, Elliot Gold
Published: 18 March 2016

Ewing v Cardiff and Newport Crown Court [2016] EWHC 183 (Admin)

Bereaved friends and other members of the public often take notes of the evidence given in Coroner’s Courts. Whilst Coroners can dictate much of the practice and procedure within their own courts, the recent case of Ewing in the criminal jurisdiction has clarified that it is only in very limited circumstances that restrictions should be placed on observers taking notes in public hearings and that no express permission to take notes is required.

“Although the Court may, for good reason, withdraw the liberty to take notes, the default position is that anyone who attends a public hearing is free to take notes.”

Determining the scope of an Art 2 Inquest: the need for an arguable contribution

Written by: Bridget Dolan KC
Published: 28 January 2016

R (Speck) v HM Coroner for York & (1) NHS England (2) MEDACS (Interested Parties) [2016] EWHC 16

In a case which serves as a reminder that an inquest should not be seen as a substitute for a public inquiry, the Admin. Court has held that, where a coroner conducting an Art 2 inquest decides that a factor could not even arguably be said to have made any real contribution to the death, then there is no discretion, or indeed power, to investigate that issue. Coroners’ investigatory powers arise from their statutory duty under the Coroners and Justice Act 2009 s.5 and their discretion is limited to investigating only those factors that might arguably have contributed to a death.

It would be “wrong in principle” to “go into issues of policy and resources with which an inquest should not be concerned”.