Jones v HM Coroner for Gwent and others [2015] EWHC 3178 (Admin) 5 Nov.15
The Divisional Court this week made clear the limits of s.13 Coroners Act 1988 when seeking to overturn and inquest. Where Judicial Review is the correct vehicle to challenge the decision of a Coroner then the failure to bring such a claim in good time should not be circumvented by an application for a fresh inquest under s.13.
Mason Jones was just five years old when he died after having eaten cooked meat infected with E.coli in 2005. In 2007 the manager of the business selling the meat pleaded guilty to seven counts of breach of food hygiene regulations. The CPS considered the case but decided that there was insufficient evidence to provide a realistic prospect of a conviction for manslaughter.
At Mason’s inquest in 2010, where the family were represented by a QC, the Coroner concluded that although the catering business manager’s disregard for good hygiene practices meant that there had been a serious and obvious risk of illness, he was not satisfied that that a reasonably prudent person would have foreseen a serious and obvious risk of death. As such an essential element of gross negligence manslaughter was absent, hence an unlawful killing verdict could not be considered. A narrative verdict was given:
“Death was the result of an E.coli infection, probably due to the consumption of cooked meat which had become contaminated with that organism during the course of preparation, due to a lack of or disregard for good food hygiene practices.”
Over two years later the family met with the DPP who agreed to look into the case. The DPP then received advice from a QC that not only should a prudent person in the manager’s position have appreciated there was a serious risk of death but, more importantly, that there was some evidence that the business manager had actually appreciated that fact: the manager had apparently said in a 2006 interview that he knew that the particular E.coli strain could be fatal. The DPP then accepted that there had been an error in the original charging decision and that there had been sufficient evidence to charge the manager with gross negligence manslaughter. However, it was now several years since the death and was far too late to charge the manager, given the likely abuse of process arguments as a result of delay.
In the light of the decision not to bring charges the family then sought to re-open the inquest under s.13 Coroners Act 1988.
The decision
The Divisional Court noted how the discretion under s.13 to reopen an inquest was broad, and the specific reasons provided at s.13(1)(b) for why it might be necessary or desirable to reopen an inquest were not exhaustive. The kind of error envisaged by s.13 to justify the re-opening an inquest was one which cast doubt on the integrity of the proceedings, where something had gone wrong with the process, or where the coroner had not had all the material facts.
A barrister’s opinion was not a new fact, nor was it relevant fresh evidence, it was opinion evidence that would have been inadmissible before the Coroner.
The evidence upon which the barrister’s opinion was based had been available to the Coroner and the opinion of a barrister did not alter the factual basis on which the Coroner had reached his decision. The Court noted that the real complaint now being made was that the Coroner had reached a conclusion that was not properly open to him on the evidence. The Coroner’s decision could have been challenged by Judicial Review at the time and it did not require the barrister’s opinion in 2012 in order to identify that potential ground of challenge. What the applicant was really seeking to pursue was in substance a Judicial Review application that was now five years out of time. It was therefore not appropriate to re-open the inquest under s.13.
Commentary
In this decision, that will no doubt be welcomed by Coroners, the Court has made it resoundingly clear that where Judicial Review is the correct route to challenge a Coroner’s decision, then s.13 will be of no assistance to those who have not acted swiftly. There has to be finality in the process and so dressing up a Judicial Review claim as a s.13 issue will not be permitted.
Section13(1)(b) gives an applicant guidance regarding matters that may lead to a fresh inquest, these include “fraud, rejection of evidence, irregularity of proceedings, insufficiency of inquiry, the discovery of new facts or evidence or otherwise”. However, the term “otherwise” although broad is not unlimited in its reach. Whilst s.13 has as its touchstone the interests of justice, this is not to be interpreted as creating a right to bring even a very soundly based Judicial Review claim out of time. Although Elias LJ commented that it was “an attractive submission” that the Coroner went wrong in law, this would be a basis for Judicial Review and not grounds for a s.13 application. It was not sufficient foundation for a s.13 claim that the Coroner may have been acting unlawfully in reaching a conclusion contrary to the available evidence.
The further comments of the Court on the interests of justice are also revealing, Elias LJ stated that even if s.13 had in principle been applicable, he did not accept it would be in the interests of justice to reopen this particular inquest. The narrative verdict had accurately reflected the circumstances and reports to prevent future death had been made. It was not obvious that any wider public interest would be served by a fresh inquest.
Finally, it is of note that the Court had no time for unfounded criticism of the Coroner. The applicant alleged that the Coroner had been influenced by the original decision of the DPP not to prosecute for manslaughter. It would of course have been unlawful had the Coroner had been influenced by the original charging decision, but there was nothing to show that this had been the case and it was explicitly denied by the Coroner.