Risk of self-incrimination will not justify a witness’ non-attendance at an inquest

M4 v The Coroner’s Service for Northern Ireland, [2022] NICA 6 (here)

The privilege against self-incrimination is an ancient right firmly established in our Common Law dating back to the 17th century abolition of the Star Chamber.  This privilege enables a witness to refuse to answer questions in court and to refuse to produce documents or material at trial or pre-trial if doing so might carry a risk of the evidence being used in the course of a criminal prosecution against the person.

However, whilst that right is, very properly, protected at inquests by the Coroners procedural rules, the Court of Appeal of Northern Ireland have made it clear that the privilege cannot be relied upon to avoid any attendance at an inquest altogether.  Where a Coroner believes there is some relevant evidence a witness can give that Coroner will be entitled to call them to court, using legal compulsion if necessary, even where the privilege has been claimed.

In this Art 2 inquest, where the key allegation was that a soldier had unlawfully taken the life of the deceased, the need for the witness to attend the inquest was paramount such that the Court’s power to set aside a subpoena would not be exercised.

Coroners are not a one stop Human Rights Court

Lee v Assistant Coroner for County Durham and Chief Constable of Durham [2022] High Court QBD (CO/4066/2021) here

The tragic death of Dylan Lee is a distressing case.   Dylan was only 19 years old when he took his own life by hanging himself at his family home.   Before his death Dylan’s family were said to have been the victims of abuse and harassment by private individuals (primarily neighbours) as a result of their Romani Gypsy heritage.  Sixteen crimes against his family had been, reported to police in the period before Dylan’s death.

Dylan’s mother felt strongly that the police had failed to treat the family’s reports with the seriousness that they deserved, failed to recognise the treatment as discriminatory, and failed to carry out adequate investigations. However, at Dylan’s inquest the Coroner ruled that the scope of the inquest would not include investigation of the alleged discriminatory treatment to which Dylan and his family were subjected, nor the alleged failure of the police to respond appropriately thereto

Dylan’s mother sought permission to bring judicial review proceedings challenging the conduct of this non-Article 2 inquest.   Although not a binding authority, the comments of the Judge when refusing permission to bring the claim are illuminating.

The application was brought on the basis of both Article 2 and Article 8 ECHR.  The Article 2 aspect was easily dispensed with:  there was nothing in the evidence to suggest police (or indeed anyone) ought to have known Dylan was at risk of taking his own life, nor was there any evidence of any link between the alleged harassment and Dylan’s death. As for the Article 8 claim, the judge noted that even if the state does have an investigative duty under Article 8, it does not follow that that investigative duty falls upon a Coroner.   It is no part of the function of an inquest to investigate an alleged breach of a person’s right to respect for private and family life.

Coronial bias: A predisposition is not a predetermination

In the matter of Downey [2021] NIQB 108 (here)

There is much to be learned from this recusal application, that was founded on the Coroner having allegedly expressed a decided view regarding an important legal point before he had received the written submissions he had invited on the issue.

Despite a High Court judge initially having ‘significant concerns’ about the events, the judge eventually accepted the Coroner’s explanation that his having stated an, apparently, concluded view on the applicability of Art 2 in correspondence with the Legal Services Agency, was merely a ‘poor choice of words’, and that he had not actually predetermined the matter.  As such, the application that the Coroner should recuse himself from further involvement in the inquest failed.

The judgment is worthwhile reading, with much opportunity for vicarious learning for Coroners in the fascinating twists and turns of not making an Art 2 decision. For the inquest lawyer Northern Ireland’s newest High Court judge provides an extremely detailed and helpful guide to the key legal principles in play if making an application for recusal on the grounds of bias allegedly shown by predetermination of an issue.

A Coroner may not use protected material from an aircrash investigation that has been deployed in public in a criminal trial

Senior Coroner for West Sussex v (1) Chief Constable Sussex Police (2) Secretary of State for Transport (3) Mr Hill [2022] EWHC 215 (QB) (judgment here). 4 February 2022

The Shoreham Aircrash in 2015, its investigation by the Air Accidents Investigation Branch, (published in 2017) and the ensuing criminal trial (concluding in 2019) have produced a highly unusual, if not unique, set of circumstances with layers of legal complexity when it comes to the conduct of the subsequent coronial investigation.

The Norfolk[1] case in 2016 had already established that a coroner would not be entitled to obtain material or statements obtained by the Air Accidents Investigation Branch (‘AAIB’) for the purposes of a coronial investigation unless there was evidence that the AAIB investigation had been defective in some way.[2]  AAIB material is protected from disclosure to anyone by a raft of measures including an international convention given effect by EU and national regulations.[3] The Divisional Court in Norfolk was clear: given the AAIB, as an independent state entity, has the greatest expertise in determining the cause of an aircraft crash, there is no public interest in having unnecessary duplication of investigations or inquiries. A coronial investigation need not go over the same ground but should accept the findings in an AAIB report and use these to answer the statutory questions that a coroner must consider as to how an aircrash victim came by their death.

In this recent judgment the High Court has now determined that the strength of the protection of material collected by the AAIB is such that the Senior Coroner was not even entitled to obtain or use material that might elucidate the cause of the crash, even when it had already been deployed in public, in a criminal trial.

Specifically, the Shoreham Aircrash pilot had captured Go-Pro video footage of the crash flight on his own camera that he had placed in the plane’s cockpit.  The footage had been shown to the criminal jury who had acquitted him of gross negligence manslaughter.  Even though the pilot himself now wished to rely upon those video images for the purpose of the inquests, the Coroner was not permitted to obtain them.  Expert reports produced for the criminal trial that interpreted the video footage were also all off limits to the Coroner.   Furthermore, the Coroner was even prohibited from using the official trial transcripts of the evidence given by the defence and prosecution experts at the criminal trial in so far as those transcripts made any reference to the Go-Pro video footage.

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.