On 20 August 2015 the Lord Chancellor published revised guidance on civil legal aid funding in inquest cases. It takes into account the conclusions of the Court of Appeal in the case of Letts v The Lord Chancellor  Inquest Law Reports 15, and now recognises that there are some categories of case in which the mere fact of death gives rise to a possibility of State responsibility and this suffices to trigger the Article 2 procedural duty to conduct an independent investigation.
The previous guidance had suggested that an arguable breach of a substantive duty had to be identifiable to engage the need for an Art 2 inquest. It is now made clear that there are certain categories of death where the automatic duty arises whether or not the evidence in the case discloses an arguable breach of any of the substantive obligations.
Senior Coroner for Cumbria v Ian Smith  EWHC 2465 (Admin)
Poppi Worthington, was only 13 months old when she died in hospital in December 2012 having apparently sustained fractures to her leg and other injuries. Yet despite there clearly being reason to suspect that this was a violent or unnatural death, and an inquest already having been held, none of the facts surrounding her death have as yet been made public. Poppi’s inquest in October 2014 took only seven minutes to complete; the Coroner returned an open conclusion and found that her cause of death was ‘unascertained’. It is hardly surprising then that the High Court has now overturned that first inquest and determined that a fresh inquest should be held.
“The Coroner did not give any information about the circumstances leading to the girl’s death. The inquest did not address questions about her welfare, how she was discovered, whether any attempts were made to revive her and whether any public agencies were at fault.”
This case re-emphasizes the duty of coroners to hold their inquests fully in public no matter how difficult the surrounding circumstances. Moreover, that this case had to be brought by the present Senior Coroner against the previous Senior Coroner brings into question whether there should be some simpler mechanism than requiring a Senior Coroner to, firstly, seek a fiat of the Attorney General and, secondly, make a High Court application under s.13 Coroner’s Act 1988 when he or she seeks to put right obvious shortcomings and hold a fresh inquest.
Dr S v HM Coroner North Yorkshire East  EWHC Queen’s Bench Admin Division, CO/2277/2015, 21.7.2015
Coroners sitting without a jury are now encouraged by the Chief Coroner’s Guidance (no. 17) to deliver a ‘summing up’ in which they state orally, in open court, their key findings of fact before recording their formal inquest conclusions. But what is to be done when the Coroner oversteps the mark and makes unlawful factual findings or comments during this summing up?
The case of Dr S is one recent example of a successful Judicial Review challenge to a Coroner’s unlawful comments about a witness’ probity. However another recent case MRH Solicitor v Manchester County Court EWHC  1795 raises the question of whether there might be an alternative and simpler mechanism for quashing and striking from the record such findings where the inquest conclusion itself is not challenged.
The CJA 2009 entered the “terrible twos” this week having come into to force on 25 July 2013. Its birthday gift was the publication of the ‘Second Annual Report of the Chief Coroner to the Lord Chancellor: 2014-2015’, which details the gradual evolution of the Coroner’s Service as a combination of the CJA 2009 and the efforts of the Chief Coroner lead the service (mostly willingly) into the 21st Century.
R (Wiggins) v HM Assistant Coroner Nottinghamshire  EWHC 1658 (Admin), 26.3.2015
With the growing popularity of narrative verdicts in the mid-2000’s it had become common practice for Art 2 inquests to conclude with a lengthy jury narrative outlining a multitude of shortcomings by public bodies. That practice has largely died out: the Court of Appeal’s decision in R (Lewis) v Mid and North Shropshire Coroner  Inquest LR 294  1 WLR 1836, and the more recent Chief Coroner’s Guidance no. 17 on conclusions, have significantly curtailed the number of issues that coroners now direct juries to determine at the end of an Art 2 inquest. That there is no longer any duty for non-causative shortcomings to be recorded has led many coroners to only use their power to do so where they require a jury’s assistance to determine disputed facts as a basis for the coroner’s PFD report.
However a looming case might change the practice yet again as permission has recently been given in Wiggins to bring a judicial review claim addressing the question of whether the causation point in Lewis needs to be re-visited in light of the approach adopted to Art 2 liability in Sarjantson v Chief Constable of Humberside  Inquest LR 251,  QB 411.