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.

The Art 2 investigative duty and ‘historic’ allegations – when is the duty engaged?

In the matter of an application by Margaret McQuillan for Judicial Review (Northern Ireland) (Nos 1, 2 and 3) [2021] UKSC 55

In the same week that Dominic Raab unveiled his proposals for a new Bill of Rights, Parliament’s intent when it enacted the existing human rights framework has also been the subject of scrutiny by the Supreme Court. In the matter of an application by Margaret McQuillan for Judicial Review, the Court has provided guidance on three key matters: the extent to which the investigative duty under articles 2/3 of the European Convention of Human Rights is engaged in pre-commencement deaths (the ‘Temporal Scope Issue’); when new evidence revives the investigative obligation (the ‘Brecknell Issue’); and how courts assess the independence of investigations (the ‘Independence Issue’).

‘Assertive’, ‘unwise’ and ‘intemperate’ coronial questioning can be grounds for a fresh inquest

Nguyen v Assistant Coroner Inner West London [2021] EWHC 3354 (Admin), 10.12.2021

Concerns raised about the adversarial nature of some inquest proceedings and the standards of advocacy displayed in Coroners’ Courts have led the Law Society and Bar Standards Board to recently issue new guidelines for all legal professionals practising in Coroners’ Courts. Those guidelines published in September 2021 (here) spell out the competences to be expected of lawyers by the regulators and the public.

The Chief Coroner has the expectation that ‘coroners will be vigilant in ensuring those before them are meeting the expected standards’.[1] Coroners will be encouraged to address practice that falls short of these competences either during the hearing itself or through raising their concerns with the relevant regulator.

It was not, however, the questioning style of the advocates that was called to account in this most recent application for a fresh inquest under s.13 Coroners Act. Rather, the allegation was that the Assistant Coroner herself had overstepped the mark by raising unduly pressurising questions that at times amounted to speeches during her own assertive questioning of a key witness. Her approach, the Claimant argued, had revealed an inappropriate ‘pro-doctor’ bias.[2]

In the view of the Divisional Court some of the questions raised by the Assistant Coroner were indeed “too assertive, [they] amounted to the setting out of propositions rather than questions, and/or involved several questions and not one, making it difficult for the witness to answer”. Furthermore, some of the coroner’s remarks had been “unwise” and “close to being intemperate”.

Although the Coroner’s approach did not justify a fresh inquest on the grounds of apparent bias alone, the Coroner’s manner of questioning of a witness was, however, “close to the borderline between robustness and unacceptability”. As such it was one of the factors to be taken into account (alongside the emergence of fresh expert evidence that might call her conclusions into question) when the Divisional Court decided in the Claimant’s favour on the much broader question of whether, a new inquest should now be ordered as being desirable in the interests of justice.