When public funding for deserving families at inquests is so hard to come by it is mystifying how the Legal Aid Agency can make a decision to spend their limited funds on an apparently unmeritorious challenge to inquest conclusions by one who was involved, in the most appalling way, in the circumstances leading to the death of the deceased.
In the Worthington case, the acknowledged motivation of the abusive father in bringing his challenge was to try to hide his actions in the lead up to his daughter’s death from those who might look at her Record of Inquest (ROI) in the future, yet his claim was brought with the benefit of public funding.
The account of how Poppi Worthington met her death is an extremely sad and disturbing story. Poppi was 13 months old when she died at her home. When Mr (now Lord) Justice Peter Jackson considered this case in the family court proceedings in 2014 and 2016 he concluded that in the hours before Poppi’s death, the Claimant, her father, had perpetrated a penetrative anal assault on her, either using his penis or some other unidentified object. Poppi died shortly afterwards from a cause which the Judge was unable to ascertain.
The fresh inquest held in 2017, revisited the issue of whether Paul Worthington had sexually assaulted Poppi prior to her death and, if so, whether that had caused or contributed to her death. In a detailed document of over 100 pages the Coroner set out his reasoned factual findings on the extensive expert and factual evidence. He concluded that Paul Worthington had anally penetrated Poppi in his bedroom and then left Poppi to sleep beside him in such a position that her breathing was compromised, either due to the position of the bedclothes, her position within the bed, or overlaying, or a combination of all three. The anal penetration had not caused her death. Rather, the Coroner concluded that Poppi had died from asphyxia resulting from obstruction of her airways whilst she was asleep in her father’s bed.
The Judicial Review claim
Paul Worthington specifically accepted that the Coroner was required to make a finding of fact as to whether a penetrative assault had occurred. He did not challenge that finding. Indeed he could hardly have done so given that a High Court judge had twice previously come to a similar conclusion about his despicable abuse of his baby daughter.
Mr Worthington’s complaint was that the Coroner had recorded in box 3 of the Record of Inquest that:
“…at some time after 2.30am, [Poppi] was taken from her cot to a double bed where she was anally penetrated. She subsequently went to sleep in the double bed with an adult sleeping close to her… her ability to breathe was compromised by her unsafe sleeping environment…”
Mr Worthington judicially reviewed the Coroner’s conclusion. His case was that the words above in italics trespassed into the wider circumstances of the death in a way that was not permitted in a non-Article 2 inquest. As the anal penetration had not caused Poppi’s death, he argued it could not be relevant to “how” she died, and so should not have appeared on the Record of Inquest.
One might ask why this even mattered when the Coroner’s lengthy findings of fact were not being challenged and had already been widely published. But Paul Worthington’s position was that the determination and Record of the Inquest would be the only part that was formally retained and so, in the future, it was the only part to which reference would in practice be made. In other words, his motivation appears to have been to make it easier to hide his disgusting behaviour from future observers.
In glorious understatement, the Court declared itself to be “unpersuaded”.
The Court doubted that there was any distinction between the unchallenged findings of fact and the ‘determination’ reached at the end of the Coroner’s review. The Court found that it was not straying beyond the means by which Poppi came by her death for the Coroner to record why Poppi had been in the unsafe sleeping position that had caused her death.
As the Court said, it is well established that a function of an inquest is to seek out and record as many of the facts concerning the death as the public interest requires. Any inquest determination could record the wider circumstances of the death; all that distinguished an Art 2 inquiry was the requirement to do so. The matters in Box 3 of the ROI did not offend against either s.5(3) or s.10(2) of the 2009 Act; because the reference to anal penetration was factual and the person responsible for the penetration (even if apparent from the evidence before the inquest) was not actually named on the ROI.
What did the Claimant want from the application?
The Claimant’s application was brought in the hope that if the words “where she was anally penetrated” were struck from Box 3 then, as his counsel stated, “in the fullness of time it would only be the Record that would be retained and referred to”.
The Court recognised if the words were struck out the matter might then be “lost, forgotten or dissociated from the Record itself”. But, if that premise were ever to be made good, said the Court, then the ROI would clearly be deficient without reference to the finding of anal penetration. It would fail adequately to explain why Poppi was in the unsafe sleeping environment which caused her death. This was something the Coroner was entitled to record.
The wider picture
As to the wider principles here, coroners will be reassured to note that the Court will be slow to intervene to criticise an accurate, neutral and otherwise inoffensive recital of facts which a coroner considers to be relevant to “how” the death occurred, even in the context of a Jamieson inquest.
What goes into the determination in respect of how someone came by his or her death requires an exercise of judgment by the Coroner. Although a coroner is bound to keep within the scope of s.10 (and so not name a perpetrator of a crime or assert civil liability), the Court explicitly stated its view that “it would be wrong as a matter of principle for this court to attempt to micromanage inquests by constraining the proper discretion of a coroner to record the answer to the “how” question in light of all his findings of fact.”
“The Court should be cautious before interfering to require the striking out of unchallengeable findings of fact which a coroner has carefully considered to be sufficiently important by way of explanation of the means of death to include them within a determination of a section 5(1) question, including how an individual came by his or her death.”
In this case, the Coroner’s review had been “exemplary”.
The formal record of what Mr Worthington did to his daughter should stand for all to see.
A note on costs
Whilst the Coroner was awarded his costs of defending the action, being legally aided Mr Worthington is unlikely ever to be required to reimburse the tax payers of Cumbria. The Court made significant observations on when costs might be recovered by or paid by a coroner which are discussed in our further blog on this case – Being ‘neutral’ means staying neutral – which can be read here.
 See Cumbria County Council v M and F (Fact-Finding No 1)  EWHC 4886 (Fam) and F v Cumbria County Council  EWHC 14 (Fam)
 Setting out “How, when, where and for investigations where s5(2) CJA 2009 applies, in what circumstances the deceased came by his death.”
 Pursuant to s5(2) CJA 2009
 The effect of which is to prohibit a coroner or jury returning a conclusion that appears to determine criminal responsibility on the part of a named person or civil liability.