Sometimes within the simplest of cases lies a wealth of useful reminders and lessons for everyone. This superficially uncomplicated and uncontested application under s.13 Coroners Act 1988 is a treasure trove of learning for anyone who may find themselves seeking a fresh inquest.
The request for a fresh inquest here was well founded, and so one might expect the remedy to have been swiftly achieved. The deceased had died after a self-administered paracetamol overdose and had left a note that provided evidence of his intent. Unfortunately, that note was not put before the coroner: had it been her inquest conclusion of ‘misadventure’ would probably have been different. But, despite the bereaved raising their concerns about the accuracy of the conclusion and the absence of the note on the day the inquest ended, it took more than five years before a fresh inquest was ordered by the High Court
The background
In April 2014 Mr Vaughan was found at his home by a mental health worker, Mr Williams, having taken a large overdose of paracetamol. He had left a note for his brother who was given the original whilst a copy was placed in the mental health records. Sadly, Mr Vaughan died two days later. The Vaughan family had been critical of the local Health Board’s management of the deceased in the months leading up to his death.
At Mr Vaughan’s inquest 14 months later in July 2015 the note was not mentioned in any of the Health Board’s reports. When the Deputy Coroner returned a verdict of misadventure Mr Vaughan’s brother immediately challenged Mr Williams as to why the note had not been mentioned. He was told it had been in Mr Williams’ original report but had been omitted from the report put before the Deputy Coroner by the Health Board.
The Health Board, who were now aware that this note cast considerable doubt on the inquest conclusion told the Deputy Coroner about it the next day. Ten days later, on 20 July 2015, the brother also wrote to the Deputy Coroner asking for the inquest to be re-opened saying it was a “matter of deep concern that evidence of a suicide note left by my late brother was removed from a report for whatever reason”.
The subsequent inaction
It seems that nothing more was done by the Health Board or the Deputy Coroner for two years until, in August 2017, when the Deputy Coroner eventually wrote to the Attorney General seeking a fiat to reopen the inquest. No reason was provided for the delay. The fiat was granted by the Attorney General, but the s.13 claim was not issued by the Deputy Coroner and so the fiat lapsed.
Fast forward another two years to July 2019 when a new Senior Coroner arrived and immediately took up the case. Within three weeks of her appointment she had sought a fresh fiat. Sadly, things weren’t quite so fast at the Attorney General’s office. The grounds for the fiat were unchanged but this second fiat still took over a year to be granted. Once it was given the Senior Coroner promptly issued the High Court claim in September 2020. Despite the impact of the pandemic on court hearings the s.13 application was heard by the Divisional Court within three months.
This being the Senior Coroner’s own application no respondent was named or attended and so it seems that there was no evidence before the court of the current attitude of the bereaved family to a fresh inquest. There was some hearsay evidence, now over sixteen months old, from the re-application to the Attorney General which suggested the family supported the application at that point, but it took the High Court’s own intervention to generate an email from the brother confirming he still wanted a fresh inquest to be held.
The Court’s Approach
The Divisional Court made it abundantly clear that when determining an application for a fresh inquest there is really only one statement of law the Court needs to consider. All the other authorities simply paraphrase the famous passage from the Hillsborough[1] case that sets out the correct approach to decisions under s.13(1)(b) Coroners Act 1988:
“The single question is whether the interests of justice make a further inquest either necessary or desirable. The interests of justice, as they arise in the coronial process, are undefined, but, dealing with it broadly, it seems to us elementary that the emergence of fresh evidence which may reasonably lead to the conclusion that the substantial truth about how an individual met his death was not revealed at the first inquest, will normally make it both desirable and necessary in the interests of justice for a fresh inquest to be ordered. The decision is not based on problems with process, unless the process adopted at the original inquest has caused justice to be diverted or for the inquiry to be insufficient. What is more, it is not a pre-condition to an order for a further inquest that this court should anticipate that a different verdict to the one already reached will be returned. If a different verdict is likely, then the interests of justice will make it necessary for a fresh inquest to be ordered, but even when significant fresh evidence may serve to confirm the correctness of the earlier verdict, it may sometimes nevertheless be desirable for the full extent of the evidence which tends to confirm the correctness of the verdict to be publicly revealed.”
Necessary or desirable
Importantly, as the court emphasised, the statutory test in respect of the interests of justice is in the alternative. If it can be shown that a fresh inquest is either necessary or desirable, then it will be ordered.
In the present case, said Lord Justice Coulson, a fresh inquest was not obviously necessary. That the Coroner’s Service in Gwent had allowed such a long time to pass without any, or any proper, explanation for the delay did not suggest necessity. If the deceased’s family had been opposed to a fresh inquest, the Court was unlikely to have overruled their wishes on the basis of necessity.
However, the separate test of desirability did encompass a consideration of the wishes of the deceased’s family and the court was easily persuaded on this front, given this was what the bereaved brother had wanted since the afternoon of the original inquest. Delay was of little materiality in a case where the family were content, indeed enthusiastic, for a further inquest to be ordered. Furthermore, the Court having belatedly been provided with what was described as a “suicide note” left by Mr Vaughan a different inquest conclusion was now likely.
Top Tips for s.13 applications
There are perhaps a number of top tips to take away from this drawn-out affair:
- Most importantly – if things have gone wrong always try and put them right as soon as you can
- There is no time limit for making an application to the Attorney General for a fiat
- The part 8 claim form must be served within six weeks of the grant of the fiat [2] – so don’t delay acting upon it
- The views of the bereaved are very important when a fresh inquest is sought and up to date evidence of the family’s position should always be before the court
- There is no need to overload the court with legal authorities – the principles from the Hillsborough case are all that is usually required
- The questions of whether it is (i) necessary or (ii) desirable in the interests of justice to hold a fresh inquest must be separately considered – a ‘yes’ to either one will be sufficient
- It is rather hard to claim a fresh inquest is necessary after a very long-time lag
- Desirability is rather easily satisfied if a different conclusion is likely; the position of the bereaved will also be very important
This blogger’s experience of s.13 applications is that the process is much quicker and smoother if, from the very outset, a draft of the order being sought is provided to the Attorney General and later to the Court. Where the matter is not contested a consent order signed by all of the interested persons at the inquest (who would be interested parties in the s.13 case) usually speeds and smooths the way entirely. A signed consent order not only avoids the need for the Attorney General’s office to take time contacting other parties seeking their views on the application, but had the Court been provided with a signed consent order in this case the views of the family would have been clearly evidenced without the need for further inquiry.[3]
‘Suicide Notes’ or Final letters?
A final thought on the use of the term ‘suicide note’. Throughout the judgment this is what Mr Vaughan’s final note is called. Its precise contents are not cited and the text may well have made his intent abundantly clear – but whilst the term ‘suicide note’ may be commonly understood surely such labelling also pre-judges the key matter a coroner’s inquest is established to determine?
Not all notes left by the deceased do actually set out their intent. Often such notes are not dated or are found later amongst the deceased’s affairs rather than in close proximity to the body. In such cases coroners or their officers adopting the common term ‘suicide note’ clearly appears to prejudge the inquest outcome when it is more properly for the coroner (or their jury) to infer intention from their content at a later stage in the context of all the other evidence.
Calling such communications “final notes” or “final letters” perhaps more properly describes what they are without also seeming to predetermine the inquest’s conclusion.
Footnotes
[1] HM Attorney General v HM Coroner of South Yorkshire (West) & Anor [2012] EWHC 3783 (Admin), [2012] Inquest LR 143 at [10]
[2] CPR Practice Direction 8A: Para. 19.3(3). The application is by Part 8 claim form N208 which is found here. Coroners are not exempt from the issue fee which is currently £528 (see Civil Proceedings Fees Order 2008, sched 1, para 1.5)
[3] The Divisional Court must still of course make its own decision, s.13 proceedings cannot be disposed of merely by consent but only by a determination of the High Court.
Eloise Power of Serjeants’ Inn Chambers represented the Senior Coroner at the Divisional Court hearing.