Dillon v Assistant Coroner For Rutland & N Leicestershire [2022] EWHC 3186 KB (Admin)

Challenging a Coroner’s refusal to issue a report to prevent future deaths (‘a PFD report’)[1] is always going to be an uphill struggle. Whilst there is no coronial discretion, and a report is mandatory, if a coroner determines action should be taken to prevent a risk of future deaths continuing, the Divisional Court has now made clear that before coming to that position there is a significant subjective element.

Before the duty to issue a PFD report arises, first, there must be a concern (arising from the investigation) that circumstances creating a risk of other deaths will occur or continue in the future. Secondly, and significantly, the Coroner must have formed the opinion that ‘action should be taken’ to prevent that risk of death.

The Coroner must act rationally in coming to the opinion held, but different coroners could reasonably come to opposite opinions on the same facts without either being wrong to do so. In other words, there is no single, objectively correct answer to the question raised by the second criterion in any particular case.  It is, therefore, no surprise that the Claimant’s challenge failed in this case.

It is now six years since Singh J and the Lord Chief Justice considered the relationship between Accident Investigation Branch investigations (Rail, Air & Marine) and coroners’ inquests in ‘the Norfolk case’.[1] In that instance the issue was whether a coroner had the power to order the Air Accidents Investigation Branch (“AAIB”) to disclose a cockpit voice and flight data recorder. The Divisional Court said ‘no’. But that’s not important right now…

What was more interesting was what Singh J[2] said about a coroner – who was not an expert in the field – not being required or permitted to “go over the same ground” as an AIB. Lord Thomas agreed and bemoaned the tendency “for different independent bodies … to investigate, either successively or at the same time, the same matter.” He concluded that, if coroners did not defer to AIBs which had the greatest expertise, then public money would be wasted. In the absence of “credible evidence that the investigation into an accident is incomplete, flawed or deficient” then a coroner had no business re-investigating matters covered by the independent investigation of the AAIB.

What then should a coroner do in these circumstances? According to Lord Thomas either: (a) adjourn pending publication of the AIB report or (b) proceed on the assumption that the reasons for the crash will be determined by that report and the issue treated as outside the scope of the Inquest.

R (Morahan) v HM Coroner for West London and others [2022] EWCA Civ 1410

After a flood of Article 2 decisions in the past few years many will be relieved to learn that the Court of Appeal have firmly rejected the challenge in Morahan (so there is no new law to get to grips with), whilst at the same time sending out a stern message to lawyers that these Article 2 arguments are getting out of hand!

We should remember that “an inquest remains an inquisitorial and relatively summary process. It is not a surrogate public inquiry. ”  Inquests are becoming increasingly legally complex which the Court deprecated as leading to “lengthy delays….a substantial increase in the length with associated escalation in the costs of involvement in coronial proceedings”.

Additionally, the implications of Article 2 engagement are limited – whether it is engaged or not the scope of the inquiry will be the same. The availability of legal aid is the main driver for applications for Article 2 engagement but that should not affect the Court’s determination of the law.

R v Kadir [2022] EWCA Crim 1244

Not a true headline – but one we might well see if the coronial world remains as ignorant as this blogger was until yesterday of the requirement to seek approval from a foreign state before hearing any live oral evidence from abroad.[1]

The Court of Appeal[2] have just handed down their decision in a criminal appeal that includes an important reminder (or warning, if you shared my ignorance) that when hearing evidence by a live link from a witness who is in another country, it is necessary to bear in mind the long existing understanding among Nation States that one state should not seek to exercise the powers of its courts within the territory of another state without the permission (on an individual or a general basis) of that other state.

It should not be simply presumed that all foreign governments are willing to allow their nationals, or others within their jurisdiction, to give evidence before a court in England and Wales via a live link.

Indeed, since the 1970s the Hague Convention[3] has recognised this and so established a uniform framework of co-operation mechanisms in order to facilitate and streamline the taking of evidence from abroad in civil and commercial cases by using an International Letter of Request (ILOR) to the state concerned sent by the judicial authority of a contracting State, to the Central Authority of the other State (see here). But of course not all States are signatories to the Hague Convention and even under this convention permission must be sought unless a Contracting State has declared that evidence may be taken under this Article without its prior permission.

Furthermore, it has been persuasively stated[4] that whenever the issue arises in a tribunal about the taking of evidence from outside the United Kingdom, the question of whether it would be lawful to do so is a question of law for that country, whether or not that country is a signatory to the Hague Convention.  In all cases, therefore, what the Tribunal needs to know is whether it may take such evidence without damaging the United Kingdom’s diplomatic relationship with the other country.

The potential damage includes consideration of wider harm to the interests of justice since, if a court or tribunal acts in such a way as to damage international relations with another State, this risks permission being refused in subsequent criminal and civil cases, where evidence needs to be taken from within that State.

Davison v HM Senior Coroner for Hertfordshire [2022] EWHC 2343 (Admin)

There is little new law in an inquest being quashed and a fresh inquest being ordered after new expert evidence has been obtained.  What is particularly unusual in this case is that the independent expert evidence upon which the s.13 application was founded was not obtained by the Claimant, but was sought by Attorney General herself.

Megan Davison (‘Megan’) suffered with ‘diabulimia’, a media-coined term that refers to an eating disorder in a person with type 1 diabetes, where the person purposefully restricts insulin in order to lose weight. When Megan sadly took her own life an inquest held in 2018 concluded that her death was suicide; the Senior Coroner did not consider that he should make any prevention of future deaths (‘PFD’) report. Megan’s family have now been granted a fresh inquest after new expert evidence was obtained by Attorney General regarding diabulimia. That independent expert evidence, which criticised the treatment Megan had received, was the foundation for the Claimant’s successful s.13 application.

Also of interest in this judgment is the Divisional Court’s views on (i) whether a Coroner’s failure to comply with the strict requirements of r.23 is a material shortcoming that would of itself justify a fresh inquest, (ii) whether a new inquest might be justified just to obtain further PFD evidence and (iii) whether a neutral coroner should pay a successful claimant’s costs.  One might also speculate whether the Court’s obiter comments about whether Article 2 ECHR is engaged following a death of a mental health patient in the community might foreshadow the decision soon to be handed down by the Court of Appeal in Morahan.