The low threshold for calling a jury in police deaths

R (Fullick) v HM Coroner for Inner London North [2015] EWHC 3522 (Admin) 3 Dec 15

Susan Jones died after falling ill at a police station after she had attended the station voluntarily as a witness. An alcoholic, homeless and on methadone, she was vulnerable and police statements made it clear that the officers felt they owed her a duty of care: as the Chief Coroner put it, “at the very least she needed looking after”. Having given an interview, Susan was waiting for a specialist team to attend. While waiting she placed her head on the table and appeared to fall asleep, being heard snoring. She was left for some time, checked once, but not roused. Nearly two hours later, officers realised she was not breathing. An ambulance was called and CPR commenced, but she died in hospital just over a week later.

The Coroner’s initial decision not to hold her inquest with a jury was overturned by the High Court, comprising the Chief Coroner and McCombe LJ.

‘Reason to suspect’ is a low and objective threshold: ‘suspect’ means suspicion: ‘a state of conjecture or surmise.’

Susan’s family submitted to the Coroner and again to the High Court that her case satisfied one of the mandatory provisions for a jury in s.7 Coroners and Justice Act 2009: there was reason to suspect that the death resulted from an act or omission of a police officer in the execution of their duty. Alternatively, the Coroner had a ‘sufficient reason’ to call a jury and ought to exercise her discretion to sit with one.

The High Court agreed with the family on both counts. It held that the ‘reason to suspect’ test is a low and objective threshold. ‘Suspect’ means suspicion: ‘a state of conjecture of surmise’ said Hickinbottom J in R (Davey) v HM Coroner for Leicester City and South Leicestershire [2014] ILR 260, endorsed here. This standard falls far below prima facie proof or clear evidence. If there is material which leads a coroner to suspect there is a question over whether the police ‘could or should have done more’, then there must be a jury to answer this question.

The Court also concluded that the Coroner should have found there was sufficient reason for her to exercise her discretion to sit with a jury. As determined in R (Paul and others) v Deputy Coroner for the Queen’s Household [2007] ILR 17, factors for the Coroner to take into consideration included whether the case resembled the situations covered by the mandatory provisions, and also the wishes of the family. So a Coroner does not even need to feel she has reason to suspect that a death resulted from an act or omission of a police officer. The situation need only resemble one where the death so resulted.

This case shows that ‘act or omission of a police officer’ is a provision with a scope far wider than might previously have been assumed. The provision is not solely triggered by positive acts by police officers that were potentially causative of the death, nor does it only cover police dealings with criminal suspects. A jury may be required whenever the police have had involvement with a deceased person who, like Susan, needed looking after. If there is any suspicion that officers could or should have done more to prevent a death, and the family want there to be a jury, this judgment will make it very difficult for any Coroner to justify sitting without one.

The Chief Coroner also addressed the engagement of Article 2. The Coroner had written to the family ‘I do not conduct inquests where Article 2 is engaged and those where it is not engaged in any way different, and so for this reason the inquest will certainly be Article 2 compliant’, notwithstanding the lack of a formal ruling that Article 2 was engaged.

Sir Peter was not impressed: ‘In all cases where the issue of Article 2 is raised, the Coroner should respond with clarity…Interested Persons need to know whether the Coroner considers that Article 2 is arguably engaged.’ These comments are a corrective for coroners who state that since they carry out all their inquests fully, frankly and fearlessly, the Jamieson/Middleton distinction does not matter to them.

When the engagement of Article 2 is raised as an issue, Coroners should not shirk their obligation to give a clear ruling on whether or not they agree. Article 2 engagement does not simply ‘widen’ the scope of the inquest in an intangible way. It has a material impact on funding for family representation and the form of the inquest’s conclusions. Coroners who argue that there is no need for them to rule decisively on Article 2 are likely to be given short shrift if their practice is scrutinised by the High Court.