Accessing protected AIB material in a criminal trial

ORR and Dorris v Secretary of State for Transport [2023] EWCR 1

This judgment, that was held back until the completion of a criminal trial, highlights again the thorny issue of the disclosure into subsequent legal proceedings of ‘protected material’ that has been collected during an independent Accident Investigation Branch’s (‘AIB’) investigation.

Limited and proportionate disclosure of protected Rail Accident Investigation Branch (‘RAIB’) material was ordered for this criminal trial to permit the relevant experts to comply with their oaths to tell the jury the whole truth, and not be inhibited in doing so.  The disclosure was extremely circumscribed and limited to that strictly necessary for a fair trial.

Notably this prosecution came after the inquest into the seven deaths in the Croydon ‘Sandilands’ tram crash and as such the decision does not make any inroads into the position in coroner’s courts, where deference to the AIB as the body with the greatest expertise will continue to mean that a coroner will generally not be permitted access to AIB material to investigate the cause of a fatal incident for themself.

Adopting Accident Investigation Branch reports and the requirement to conduct Inquests fairly

R (Mid and West Wales Fire & Rescue Service) v Senior Coroner for Pembrokeshire & Carmarthenshire and Marine Accident Investigation Branch [2023] EWHC 1669 (Admin)

The High Court’s Norfolk[1] decision has sat uneasily with some in the coronial law community. Although coroners have a statutory duty to investigate a cause of death, the effect of the Norfolk case is that if an investigation into a fatal incident has been undertaken by one of the UK’s three Accident Investigation Branches (‘AIBs’)[2] the coroner is obliged to accept, wholesale, the conclusions of that earlier AIB investigation.

As the High Court emphasised in Norfolk a coroner will comply sufficiently with their statutory duties by treating the findings and conclusions of the report of an independent AIB as the evidence as to the cause of a fatal accident.

The thorny issue of whether this is an obiter statement or part of the ratio decidendi of the decision has, however, continued to be debated.  In the Shoreham Aircrash ‘Sussex’ case [3] the Senior Coroner neatly sidestepped the argument by saying that, even if this part of the judgment was merely obiter, she was still going to follow it, particularly as it was, on any analysis, strong guidance by a court that included the Lord Chief Justice (‘LCJ’).   However, that issue has now been put beyond question, having been fully argued before the court in this most recent MAIB case.

Mr Justice Eyre has now held that the determination in Norfolk that, as a matter of principle, there could be no public interest in the duplication of investigations, was a necessary step in the court’s reasoning and so was ‘clearly’ part of the ratio decidendi of Singh J’s Norfolk judgment (with which the LCJ agreed).

As a consequence, the main challenge to the Norfolk decision raised in the present case: that it was unfair to put the MAIB report before the jury and not allow further questioning of it, was dismissed.  Furthermore, an additional multi-pronged attack on the MAIB investigation (as being incomplete, flawed or deficient) and on the coroner’s ruling (as being inadequate and unlawful) also failed on every ground.

Supreme Court outlines Art 2 obligations in community & healthcare settings

R (Maguire) v HM Senior Coroner for Blackpool and Fylde [2023] UKSC 20

Anyone who had been holding their breath waiting for the Supreme Court’s decision in Maguire can now breathe out. Nothing has changed. The Senior Coroner, the Chief Coroner,[1] a High Court judge, and four Court of Appeal judges were all right.  Article 2 procedural obligations are not engaged when someone who was living in the community and deprived of their liberty using powers in the Mental Capacity Act falls fatally ill and there is some delay to them receiving NHS care.

In a detailed and close analysis of the authorities and the relevant principles, this recent judgment helpfully distils the many complex issues around the application of Art 2 and healthcare into a lengthy, but extremely clear, exposition of the applicable law.

Refusal to answer a question seeking an opinion may be a contempt of court

R (Bailey) v Secretary of State for Justice [2023] EWHC 821 (Admin)

A challenge to the Secretary of State for Justice amending the Parole Board rules and issuing guidance about those changes is not obvious bed-time reading for those who work in the coronial jurisdiction.   But hidden within the series of judgments arising from this JR claim is a little nugget that inquest practitioners might wish to note and bear in mind regarding the consequences of a witness refusing to answer questions put to them at an oral hearing.

The Issue

The Divisional Court was asked to consider whether the Secretary of State for Justice was entitled to amend the Parole Board rules to prohibit staff employed or engaged by HM Prison and Probation Service (HMPPS) from expressing a view in their evidence to the Parole Board on the question of whether a prisoner was suitable for release or transfer to open conditions.  The amended rules would, for example, prevent a prison psychologist giving an opinion or making a recommendation that might assist the tribunal considering an individual’s continued detention.

The Court concluded that the Secretary of State for Justice had overstepped the mark by trying to prevent prison staff giving their view on ‘the ultimate question’ of a prisoner’s parole. The amendment, being an interference with the independent judicial determination of the legality of detention, was declared unlawful.

An important ancillary question that then arose was whether the guidance issued by the Secretary of State had induced HMPPS staff to commit contempt of court by refusing to express their opinion to the board when requested of them.  This of course turned on whether a failure by HMPPS staff to answer a relevant and necessary question posed by the Parole Board during proceedings could properly constitute a contempt.

Cogent evidence required before a fresh inquest is ordered

Bell v HM Senior Coroner for South Yorkshire, King’s Bench Division (Administrative Court) 21 March 2023, [2023] 3 WLUK 342

Hot on the heels of his decision as part of the appellate bench in Dove[1] last week, comes another foray into the question of the extent of the scope of an inquest into a likely suicide. The view expressed by William Davis LJ was very different on a different set of facts.

Here the claimant, rather ambitiously perhaps, sought a fresh inquest into his sister’s death some 30 years before. Her cause of death and what had happened to bring the death about were clear and not disputed. In December 1991 his sister (‘A’), who had suffered with poor mental health for some years, had stepped into the path of train leaving a final note for her family in her pocket. The inquest jury (as was required for a railway death in 1992) had applied the criminal standard of proof to suicide and returned an open verdict.

The claimant of course anticipated a likely suicide conclusion at any new inquest (now that only the civil test for the degree of certainty would be required) but what led him to seek a new inquest was (like the Claimant in Dove), that he wanted the cause of A’s distressed state of mind on the day that she died to be explored. The claimant considered that there was now fresh evidence going to that issue, and he urged the court to grant a fresh investigation and inquest into her death to look deeper into what had led A to behave as she had done.

A fresh inquest may of course be ordered where new evidence comes to light suggesting that the substantial truth of how someone came by their death has not been revealed. In Dove the Court of Appeal (including William Davis LJ) had found that new expert evidence which might elucidate why the deceased had taken her own life would justify a fresh inquest to explore that issue further. But here the basis for the application was not fresh evidence, but fresh speculation.  The facts now relied upon had been known to the deceased’s mother at the time of her death, and her mother had thought them not at all relevant to her death when she gave evidence at the first inquest three decades before.

The only basis on which a fresh inquest could be ordered under s.13(1)(b) was the discovery of new facts or evidence. As William Davis LJ made clear that did not mean any evidence: there had to be cogent evidence and inexpert speculation could not meet the statutory test.