Article 2, Arguability and Automatic Cases

R (Morahan) v HM Coroner for West London [2021] EWHC 1603 (Admin) 11.6.21

Arguments about the application of Article 2 ECHR remain one of the most taxing legal issues in the coronial jurisdiction. That the European Convention was never intended to be applied as fixed black letter law, but to be an instrument open to judicial interpretation as views evolve as to what ‘Human Rights’ actually entail for the society of the day, means that the types of cases that might engage the Art 2 investigative obligations in coroners’ courts will never be fixed. It is, therefore, unsurprising that cases exploring the engagement of Art 2 obligations in inquests seem to make their way to the High Court every six months or so, as one coroner or another ‘takes one for the team’ to help us all understand the current position in law.

Morahan is now the latest “cut out and keep” judgment for anyone wishing to get up to speed on the current state of the law with regard to Art 2 and the scope of the positive operational and the enhanced investigative Art 2 duties. In Morahan the Divisional Court has very helpfully examined Art 2 in detail, providing a summary guide to the recent key cases on Art 2 in the context of the death of a voluntary psychiatric in-patient from an accidental overdose when on approved leave from hospital.

Correlation does not imply causation

R (Wandsworth) v HM Senior Coroner for Inner West London [2021] EWHC 801 (Admin)

Most coroners won’t see any need to take extra care round a swimming pool when a Nicholas Cage film is about to be released, even given the clear relationship between one of Hollywood’s most prolific star’s film appearances and the number of people who die by drowning (see here). Nevertheless, in this recent Judicial Review case, the High Court have felt the need to remind coroners of the important principle in coronial law (sadly without any reference to Mr Cage) that correlation is not proof of causation.

The fact someone lived in a place where asbestos was present was not sufficient to establish that their fatal mesothelioma was caused by inhaling fibres from that asbestos. More is needed before a Coroner can be satisfied on the balance of probabilities, that a potential exposure to asbestos has more than minimally, negligibly or trivially contributed to a death. That the deceased was possibly exposed to asbestos at a particular address, and that asbestos is very often the cause of the mesothelioma that killed them cannot justify an inquest conclusion that asbestos exposure caused the death.

Post-inquest allegations of foul play must have some foundation

Farrell v Senior Coroner North East Hampshire [2021] EWHC 778 (Admin) 30.3.21

In this strongly worded dismissal of a s.13 application the Divisional Court (including the new Chief Coroner) were perhaps signalling to Coroners that, whilst there may be an understandable wish to placate the bereaved, detailed consideration should be given before lending one’s support to an application for a fiat for a fresh inquest. A fresh inquest cannot be justified simply to allay concerns of a member of the bereaved family, particularly where a reinvestigation would cause unwarranted distress to another.

When a family member raised suspicions of foul play – albeit with no real evidence in support – the Senior Coroner positively supported the application to the Attorney General for a fiat to apply to quash his documentary inquest into a mesothelioma death.[1] That stance was likely to have been influential in the fiat being given.

The Divisional Court have, however, now roundly dismissed the subsequent s.13 application on numerous grounds. Not only because of the lack of any evidence of the foul play being alleged, but importantly also noting that:

  • A fresh inquest would cause cost and delay to the coroner’s service.
  • It would divert the health professionals involved away from their public service by requiring preparation for and attendance at a hearing.
  • The interests of justice do not require a family member be given a platform to air unjustified suspicions.

Open Justice and Remote Inquests: Allowing public and media video access to hearings

The principles of open justice and transparency are fundamental to our justice system. They must be cherished and protected as vital to preserve the rule of law. However, a simple legislative oversight at the start of the pandemic has meant that, whilst most other courts increased their accessibility to the public by giving access via remote video platforms,[1] the Coroners Courts became more closed and secretive. All public, including accredited media representatives, have remained banned from watching any online broadcasts of coronial proceedings over the past twelve months.

This absurd position arose when the hastily passed Coronavirus Act 2020 made provision for four new sections to be inserted into the Courts Act 2003 which allow public participation in criminal, civil and family court hearings conducted by video link,[2] but unfortunately (confirming the view that Coroners Courts[3] are the forgotten relatives of the rest of the justice system) the broadcasting of coronial proceedings was overlooked and so wholly omitted from the Coronavirus Act 2020.[4]

With a stroke this unintentional oversight has meant that for the past year neither the public nor accredited journalists have been able to watch any inquest proceedings unless they have been able to persuade a friendly coroner to let them walk into their socially distanced courtroom. Happily, there have now been significant steps taken to correct this position via the Police, Crime, Sentencing and Courts Bill 2021.

What an Art 2 investigation does and does not require

R (Grice) v HM Senior Coroner of Brighton and Hove [2020] EWHC 3581

Will an inquest always be required after a homicide trial when there have been alleged failures by state agents to protect life? In this Judicial Review case Garnham J gives us the answer by summarising the scope of the requirements of an effective Art 2 investigation and, particularly helpfully, setting out what is not required to satisfy the state’s the investigative obligation.

The Senior Coroner had refused to re-open the inquest into the murder of a woman by her former partner after her complaints of stalking were mishandled by police. There was no question that Art.2 was engaged on the basis of potential breach by the police of their operational duty to safeguard the victim’s life. Furthermore, the criminal trial alone had not satisfied the state’s Art.2 investigative duty. However, the judge agreed with the Senior Coroner that the European Convention does not adopt a prescriptive approach to the form of the Art.2 investigation, so long as minimum standards are met. One must look at the totality of the investigations conducted by the state whilst remembering that even the minimum requirements involve a degree of flexibility.

In this case the Art.2 obligation to conduct a prompt and effective independent inquiry with sufficient public scrutiny and sufficient involvement of the next of kin had been met by the combination of the criminal trial, a domestic homicide review and the three other investigations of police conduct. The Senior Coroner was not only entitled to find that these enquiries satisfied Art.2; she was right to do so.