Dillon v Assistant Coroner For Rutland & N Leicestershire  EWHC 3186 KB (Admin) 14 Dec 2022, judgment here
Challenging a Coroner’s refusal to issue a report to prevent future deaths (‘a PFD report’) 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.
The Claimant’s brother had died in prison following an asthma attack. The prison had been locked down and in patrol state when he rang his cell bell reporting difficulty breathing and struggling to find his asthma inhaler. The attending prison officer did not immediately enter his cell but he waited for back-up to come, apparently ignorant that a three-officer cell entry procedure was not mandatory if a prisoner’s life was deemed at risk. A ‘code blue’ to summon an ambulance was also not immediately called. Additionally, it seems that not all the prison officers had first aid training and the prison did not have 24-hour healthcare staff as the healthcare department would close at 5:00 pm on weekends.
The PFD request
Although the jury concluded that any delay by prison officers did not affect the outcome for her brother the Claimant was concerned that other lives remained at risk in the prison. Indeed, it seems that the Coroner herself had been concerned about the absence of knowledge of emergency procedures on the part of the attending prison officer and so had asked the Head of Safer Prisons if spot checks might take place to address staff understanding of emergency procedures and the circumstances in which a cell could be entered during patrol state. The witness indicated a willingness to consider this, so the Coroner asked to be informed about the position within 56 days, saying she may subsequently consider a PFD report. Following the inquest, the Ministry of Justice confirmed that spot checks on patrol state were soon to commence. Random checks would cover officers’ understanding of emergency codes and their understanding about entering cells during an emergency following completion of a dynamic risk assessment. A ‘compact’ had been issued to staff regarding entering cells during an emergency. This response satisfied the Coroner who decided a PFD report on this issue was unnecessary.
The Claimant also asked the Coroner to issue a PFD report in relation to the lack of healthcare after 5:00 pm and the lack of first aid training for officers on duty during patrol state. The Coroner declined to do so noting that the position already was that all new staff were being given first aid training and so, even if a more longstanding officer had not completed the training, if a Code Blue were called promptly, first aid would be available.
The Court’s decision
The claim was dismissed on every ground. If a potential PFD recipient has already implemented appropriate action to address the risk of future fatalities, the coroner may not need to make a report. Whether a coroner needs to do so or not is a judicial decision for the coroner to make on a case by case basis taking into consideration all the circumstances.
This Coroner was entitled to conclude that the key issue was not whether every patrol officer had first aid training but whether the prison’s emergency response as a whole was adequate. If the Code Blue had been called earlier, first aid trained staff would (on the evidence) have arrived within 1 or 2 minutes. There was nothing unlawful in the Coroner’s decision.
An ancillary issue
The court emphasised that PFD reports are ancillary to a coronial investigation. PFD reports do not concern the rights of any person appearing at an inquest and as such no person has a right to be heard or to call any evidence that relates only to whether a report should be made. Whilst the court recognised that Coroners may choose to hear and give weight to representations by interested persons such a step is purely discretionary. The growing trend for lengthy submissions from IPs on PFD evidence to take up substantial court time was clearly something the Court felt some need to curtail.
A final warning about giving adequate reasons
An interesting obiter discussion in this judgment concerns post hoc reasoning. When the judicial review was issued the Coroner sought to provide further explanations and reasons for her decision in pre-claim correspondence and in her witness statements for the court. The Divisional Court were not impressed by this approach: such post-decision reasoning would not be taken into account and the court would judge her decision on the reasons that she gave at the time.
This is an important reminder to coroners that where a decision is controversial or contrary to submissions it is always prudent to give the reasons for the decision at the time in a sufficiently full judgment to explain the rationale. Reasons for making a decision that are only developed after that decision has been challenged are unlikely to assist.
Interestingly though, it seems a coroner will not be criticised by the Divisional Court if their reasons do not refer to or quote from the Chief Coroner’s Guidance. Not because the Chief Coroner, who was on this Divisional Court’s bench, was dissing his own guidance. Rather, it was said that “as specialist decision-makers, Coroners can be expected to be familiar with the Chief Coroner’s Guidance. The failure to refer to the Guidance or give a reasoned decision by reference to it will not in itself constitute a reviewable error of law.”
 under para 7 of Schedule 5 to the Coroners and Justice Act 2009