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.

The truth, the whole truth, and nothing but the truth: If in any doubt, just speak up

Mays v HM Senior Coroner for Kingston Upon Hull & the East Riding of Yorkshire EWHC (Admin), 1.12.2021

Witnesses often solemnly, sincerely and truly stumble over the words of the affirmation or oath.  Indeed many may wonder why it is that, when already feeling anxious at being placed in such an unfamiliar situation, they have to start the process of speaking out loud in a courtroom with such a tricky tongue twister. But the witnesses’ vow is much more than some archaic linguistic formality. This solemn promise to tell the whole truth, and not just the parts you want to reveal, sits at the very heart of our coronial inquisitorial system. It is why it should be an obvious golden rule for every witness at every inquest that if you have any question at all in your mind whether or not you should tell the Coroner about some potentially relevant facts, then just speak up.

The Coroner will be best placed to decide if something is or is not relevant and material to their investigation.  As this Divisional Court decision now underlines in red, asking other colleagues what to do and then following their misplaced advice that you need not reveal the full story to the Coroner, is unlikely to be the right course.

Revised Chief Coroner’s Guidance 17 on Conclusions and Law Sheet 1: Unlawful Killing

Revised Chief Coroner’s Guidance 17: Conclusions & Revised Law Sheet No. 1: Unlawful Killing

As the consequences of the Supreme Court’s decision in Maughan v HM Senior Coroner Oxfordshire [1] were contemplated in the coronial world,  the Chief Coroner promulgated specific legal guidance on how to tackle the new civil standard of proof for unlawful killing (see Law Sheet 6). However that January 2021 guidance has now been formally withdrawn and replaced with revised versions of the pre-existing guidance on narrative and short-form conclusions and an updated law sheet specific to the unlawful killing conclusion.

Amendments were needed as before Maughan was determined it was generally understood that the criminal standard of proof applied to conclusions of suicide and unlawful killing. As the Supreme Court in Maughan has made clear, there is now only one standard of proof in inquests – the balance of probabilities.

Precedent and Article 2: Just because a different coroner wasn’t challenged doesn’t mean they were right

Dove v Assistant Coroner for Teesside [2021] EWHC 2511(Admin), 17.9.2021

This latest Divisional Court lesson on Article 2 ECHR not only provides a helpful summary excursion through the principles to apply when establishing whether the state’s obligations to protect life are engaged (or not) but it also takes the reader back to basics on the doctrine of precedent.

That another coroner elsewhere had determined that Art 2 rights were engaged in very similar circumstances to the present case was not helpful to the Divisional Court when considering whether Art 2 applied to the death now under consideration. The Claimant’s reference to an interim direction of the previous Chief Coroner in the Fishmongers Hall Inquests was also of no avail, given that decisions of earlier coroners are not binding on, or even persuasive, in the High Court.

In Dove the Claimant drew the High Court’s attention to an earlier decision by a different Assistant Coroner in a different part of the country to bolster the submission that the Assistant Coroner for Teesside had fallen into error. The Divisional Court was having none of it. Mrs Justice Farbey made short shrift of such an approach, pointing out that it did not advance the Claimant’s submission one jot to put a series of conclusions reached by other coroners in a number of different inquests before the Court.

The principle of stare decisis requires that all lower courts should make decisions consistent with previous decisions of higher courts – certainly not the other way round. The decisions of other coroners cannot be deployed to persuade the High Court (or even a fellow coroner in a different inquest) to tread a new path, rather than to follow established and binding case law on Article 2. When considering whether the state’s duty to protect life is engaged towards people who are not under state control (which was a key issue here) then application of the judgment of Supreme Court in Rabone [1] will be a far more fruitful place to focus attention.