When can a Coroner re-open their own decision to refuse to hold an inquest?

Flower v HM Coroner for Devon, Plymouth, Torbay and South Devon [2015] EWHC 3666 (Admin), [2016] 1 WLR 2221

In a welcome clarification of the extent of a Coroner’s powers to re-open an inquest after having decided not do so, the Divisional Court has confirmed that, where an investigation has been suspended pending criminal proceedings, and a Coroner has determined that it should not be re-opened, the Coroner is not functus officio and so can revisit and change their own decision. Indeed the High Court has no jurisdiction to order an inquest under s13(1)(b) Coroners Act 1988 in such circumstances.

There had been no inquest and hence there were no inquest findings to quash.

Mrs Flower’s son had been killed in a violent incident in March 2013. The Coroner opened and adjourned his inquest but then later suspended the investigation under schedule 1 CJA 2009 pending criminal proceedings. When two people were convicted of his murder in 2014, the Coroner decided not to resume the inquest and sent the registrar a Form 121 certificate to this effect

Unsatisfied with this Mrs Flower sought and obtained a fiat of the Attorney General and made an application under s.13(1)(b) Coroners Act 1988 – this is the sub-section that gives the High Court power to quash an inquest and require a fresh inquest to be held.

Plain reading of the above might see a flaw in this approach – there was no inquest to quash – however the meaning of the provision was sufficiently unclear to require detailed argument over the interpretation of the statute before the Divisional Court (McCombe LJ and the Chief Coroner) refused the application on the basis that they had no jurisdiction under s.13(1)(b).

The Court’s only powers under s.13(1)(b) were to quash any inquest finding and order a fresh investigation “where an inquest or investigation has been held”. As no investigation (which, by virtue of s.6 CJA 2009, must include an inquest) had been completed it could not be said that an investigation had been held, the old investigation was still in being. There had been no inquest and hence there were no inquest findings to quash.

In these circumstances the Coroner was not functus officio and so could revisit his earlier decision not to resume the inquest.

The Chief Coroner also concluded that a Coroner would not be functus officio in a number of other circumstances, including where an investigation had not been commenced, when a Coroner had notified the local registrar of births and deaths either in Form 100 A (no post-mortem examination) or Form 100 B (after a post-mortem examination) that there would be no investigation (and therefore no inquest).

Unsurprisingly, as there was now a fresh decision to be made by the Coroner in the light of the new evidence now relied upon by Mrs Flower, the Divisional Court made no comment upon the merits of the substantive application in this case.   Whether or not there was now sufficient reason to resume the inquest was for the Coroner to decide, although any fresh decision now made by the Coroner could still be susceptible to a judicial review challenge, if appropriate.

The new evidence relied upon to now justify an inquest is not revealed by the judgment, although press reports suggest that the IPCC have, since the murder convictions, found various failings by police officers and staff who had involvement with the deceased before his death It is said by the BBC that officers had known of reports of an assault on the deceased with a knife four days before his death and there are allegations that a call handler made an error in not recognising the vulnerability of the deceased. It seems likely that an Art 2 compliant inquest is therefore what is being sought by Mrs Flowers.

Perhaps the only surprising aspect of this decision is the absence of any reference to s.13(1)(a) Coroners Act 1988. This sub-section gives the High Court power to order a fresh inquest if the Coroner “refuses or neglects to hold an inquest which ought to be held”. This appears to be a far more apt provision to cover the alleged shortcoming in this case.

Of course, as this particular application was not brought on that basis, the Court may have felt they did not want to raise a matter which would lead to a discussion of the substantive merits of the case, when it was far better to allow the Coroner opportunity to reconsider his decision himself. Furthermore to even suggest s.13(1)(a) would have applied might encourage a run of unnecessary applications to the High Court under that sub-section, when it must always be simpler and cheaper to, whenever possible, allow and encourage a Coroner to reconsider their own decision in the light of any new evidence now available.