2022 Inquest Cases Round-up

In this article, pupil Jake Loomes looks at seven significant inquest law judgments of 2022.

R (Boyce) v HM Senior Coroner for Teesside and Hartlepool (and (1) Middlesbrough Borough Council (2) Tees Valley Care Ltd) [2022] EWHC 107 (Admin) (“Boyce”)

In January, HHJ Belcher handed down judgment in the case of Boyce. The case concerned the death of Grace Ann Peers who died on 10 September 2018 aged 15. Grace was tragically found hanging from a scarf in her room. Grace was in the care of the local council but placed in a private care home at the time of her death.

The claimant, Grace’s mother, by way of judicial review, challenged the Coroner’s decision that the inquest would not be a full Article 2 inquest, such that the enhanced investigative duty was not engaged as per Section 5(2) Coroners and Justice Act 2009 (“CJA 2009”). The claim was brought on three grounds:

  • The requirement for an Article 2 inquest was automatically triggered because Grace was in a situation analogous to state detention;
  • There was an arguable case of a breach of the Article 2 general/systems duty in relation to Grace’s death, such that required an Article 2 inquest; and
  • The Coroner was wrong to conclude that the only material effect of the inquest not being an Article 2 one, was on conclusion and not the scope of the inquest.

As to the first ground, the Court held that Grace’s circumstances were not analogous to state detention. As HHJ Belcher stated [at 36]: “There is a very real and obvious difference between a child in secure accommodation who has thereby been deprived of her liberty, and a child in care who is free to come and go, notwithstanding that if she simply left the home, police assistance would have been sought to find and return her to the home.  In my judgment the difference is one of substance, not merely one of form”.

In any event, HHJ Belcher went on to confirm that applying the criteria set out in YL v Birmingham City Council [2007] UKHL 27 (“YL”), the private care provider could not be considered a ‘hybrid authority’.

As to the second ground, it was accepted that there were systemic failings, however the court confirmed that there would need to be an arguable case of a causal link between the systemic failing and the death in order to give rise to an Article 2 breach, applying Lord Roger’s statement of the law at paragraph [31] and [69] in Savage v South Essex Partnership HNS Foundation Trust [2008] UKHL 74 (“Savage”).

The Court further reaffirmed that the correct test was as laid down in Van Colle v Chief Constable of Hertfordshire [2008] UKHL 50 (“Van Colle”) [at 138],namely, “whether the deceased lost a substantial chance of surviving because of the breach. That is a lower threshold than the tortious test.” The Court held the Coroner’s decision that “it did not appear arguable that there was a real and substantive chance that improved systems and procedures would have saved Grace’s life”, was one that was open to the Coroner to make.

As to the third ground, HHJ Belcher, applying R (Sreedharan) v Manchester City Coroner [2013] EWCA Civ 181 (“Sreedham”) and R (Maguire) v HM Senior Coroner for Blackpool and Fylde [2020] EWCA Civ 738 (“Maguire (COA)”), rejected the claimant’s position as to scope and confirmed that the “practical solution is for inquests to address the broad circumstances especially if there is a possibility that Article 2 may become relevant in the future”.

The case provides useful clarity on the status of children in care for the purposes of Article 2. Further, it is a helpful reminder of the need to establish, in Article 2 systems duty cases, an arguable case of a causal link between systematic failings of a public authority and the relevant death.

Lee v Assistant Coroner for County Durham and Chief Constable of Durham [2022] High Court QBD (CO/4066/2021) (“Lee”)

In February 2022, in a short permission judgment, HHJ Klein, held that on the sad facts relating to the death of Dylan Lee, the Coroner was not in error in reaching the conclusion that there was no engagement of the Article 2 enhanced investigative duty. Dylan had tragically died on the 17 May 2021, having been found hanging by a rope at his home address. The Coroner in an inquest on 27 August 2021 recorded a conclusion of suicide.

The statement of Dylan’s mother, Ms Lee, alleged “deeply concerning” and “distressing” conduct from Dylan’s neighbours, which had led to him being “incredulous”, “furious”, and “deeply upset and frustrated”. The report provided by Durham Constabulary recorded only two interactions with Dylan in the year prior to his death about the alleged behaviour with the neighbours. One of those interactions between the police and Dylan recorded Dylan as being worried about livestock but otherwise “everything [was] ok”. In response to Dylan’s death, Dylan’s mother’s statement recorded that she “had no idea that he was thinking of taking his own life” and that “there were no warning signs”.

Applying Rabone v Pennine Care NHS Trust [2012] UKSC 2 (“Rabone”) at [12] and R (Skelton) v. Senior Coroner for West Sussex [2021] QB 525 at [45]-[63] (“Skelton”). HHJ Klein confirmed that Durham Constabulary would only have had an operational duty if it “knew, or ought to have known, of a real (that is, a not remote or fanciful) and immediate (that is, present and continuing) risk to Dylan’s life from the conduct of the neighbours”.

Notwithstanding the lower bar in a permission application as regards that alleged breach (it only had to be established that it was sufficiently arguable that Durham Constabulary arguably breached an operational duty), HHJ held Ms Lee’s case was not sufficiently arguable in the circumstances. Of note, HHJ Klein, stated that it was not sufficiently arguable that the Coroner had, “by calling for a police report and/or calling police witnesses, […] in fact, agreed to investigate the circumstances in which Dylan died”

In no doubt a painful conclusion for the family, an entirely rational conclusion. The judgment highlights, in keeping with the ‘practical solution’ to the scope of an inquest in Boyce (above)[1], that merely by requesting police reports and calling relevant police witnesses a coroner will not implicitly be agreeing to an enhanced Article 2 inquest.

R (Patton) v Assistant Coroner for Carmarthenshire & Pembrokeshire [2022] EWHC 1377 (Admin) (“Patton”)

In the first of three significant cases in June, Hill J, handed down her judgment in Patton. The case concerned the tragic passing of Kianna Paton who died on or around 23 October 2019 aged 16 having been found hanging in an abandoned hotel. Kianna, at the time of her death, was under the care of Specialist-Child and Adolescent Mental Health Services (“S-CAMHS”) which was the responsibility of Hywel Dda University Local Health Board. At the time of her death, Kianna was living with a friend, whose mother had let her use cannabis.

Ms Joanne Patton, the mother of Kiana, brought a claim for judicial review on three grounds (all going to the question as to whether the enhanced investigative duty under Article 2 was engaged). These were:

  • The Coroner erred in law in concluding that the council did not owe a duty to provide accommodation as per s76(1)(c) Social Services and Well-being (Wales) Act 2014 (“the 2014 Act”);
  • The Coroner failed to provide adequate reasons as to the finding that there was no obligation to provide accommodation under s76(3) of the 2014 Act; and
  • The conclusion that s5(2) was not engaged was in breach of s6 of the Human Rights Act 1998.

Before addressing the grounds, Hill J referred to the helpful distillation of the extensive and complex law relating to Article 2 duties as set out in R (On the Application Of Morahan) v HM Assistant Coroner for West London [2021] EWHC 1603 (Admin) (“Morahan EWHC”)(as discussed by Ed Ramsay, here).

At the heart of these grounds, Ms Patton asserted that s76 of the 2014 Act provided a “gateway” into the general duty (also known as the ‘systemic’ or ‘framework’ duty [at 40]). The council, argued, and Hill J accepted that this was something of a “distraction”. Ms Patton’s arguments as to s76 had erroneously conflated tests for the operational duty (per Rabone [21-25]) with the test for the general duty (per Morahan EWHC at [30(2)(a]). The general duty exists much more widely than in the circumstances that Ms Patton presented via the asserted s76 2014 Act “gateway”. The general duty remains, as set out in Morahan EWHC at [30(2)(a]). Hill J added this:

“[the general duty] does not require that the element of the state in question has assumed responsibility or exercised control over an individual, or that they are particularly vulnerable: rather the focus is on ensuring that the state, through a range of entities, has in place an adequate legislative and administrative framework for the protection of life” [at 106].

Accordingly, Hill J stated that there was no need to show a breach of the s76 2014 Act duty. The focus should have been on whether there were any arguable breaches of the general duty. Hill J suggested that the council’s approach to Kianna’s accommodation could potentially be one such arguable breach. Ms Patton would then further have to show causation, namely whether “there had been a loss of a substantial chance of a different outcome” [at 109].

Significantly, as a result of the of the Coroner’s brief reasoning, it was not possible to discern separately the Coroners decision on the issues of the existence of the general duty, arguable breach of it, and causation [110]. Nevertheless, Hill J was required to consider grounds 1, 2, and 3 against this background:

  • As to ground one, Hill J considered that the Coroner’s approach to the s76(1)(c) question was flawed.  She confirmed that the decision in Salford City Council v W [2021] EWHC 1689 (Fam) (“Salford City Council”) meant that where the issues of whether a child is ‘looked after’ is in dispute, the court “must conduct its own assessment, by applying the statutory framework to the evidence before it, applying an objective scope, and giving the word “prevented” within section 76(1)(c) “the widest possible scope””: [40], [46] and [48]” [at 112]. It was not clear from the Coroner’s judgment that such assessment was carried out.Crucially, though, the Coroner made no reference to the arguability test and the Coroner dealt with the s76 question as if it was dispositive of the matter. In short, the Coroner was asking questions he need never have asked himself. [118-119]
  • As to ground 2, as Hill J succinctly stated, it appeared the Coroner “may have used his decision on the section 76(3) issue as a basis for finding that no general duty was owed, which was incorrect” [at 128-129].
  • It followed that because the Coroner had erred on grounds 1 and 2, the decision was quashed. Hill J stopped short though of concluding that the overall decision on whether the enhanced investigative article 2 duty (s5(2) Coroner’s Act 2009 question) was engaged or not. That was accordingly remitted to the Coroner for redetermination.

The case is a thorny jungle of overlapping issues, undoubtedly complicated by uncertainty as to what was being argued before the Coroner. The case is a salient reminder to ensure clarity on what is being argued and what the relevant tests are. Issues of breach of statutory duty may be relevant to an arguable breach of the general duty but they are not dispositive of the Article 2 general duty question. The necessity to show, in general duty cases, the existence of the said duty, arguable breach of it, and causation is essential.

R (Gorani) v Assistant Coroner for West London [2022] EWHC 1593 (“Gorani”)

The second case of our June round-up, Gorani, involves allegations of a Coroner apparent bias and the unusual step of a Coroner not taking a neutral stance in judicial review proceedings.

On 19 December 2018 Mr Besim Sylaj tragically took his own life by jumping from the fifth-floor balcony of his home in Westbourne Grove in London. In the conclusion of the Coroner as to death, the Coroner noted that “on the 12th December 2018, [Mr Sylaj] rang the Single Point of Access (SPA) service but was not triaged by a clinician as per SPA policy. It is not possible to say if he had been triaged, it would have prevented his death. His death was due to suicide

The judicial review brought by the widow of Mr Sylaj was advanced on seven grounds, all of which were dismissed by Graham J and Macur LJ. Without addressing each ground dealt with by Graham J, it is worth noting the following points generally:

  • A Coroner who appears by counsel and submits a witness statement, puts herself at risk of a costs order against her should the claim succeed (R (Davis) (No 2) v HM Deputy Coroner for Birmingham [2004] 1 WLR 2739)
  • Graham J expressed surprise that the Coroner held that any of the events surrounding this death engaged Article 2 of the ECHR. ‘The systems duty is a “high level structural duty” rather than an obligation of result’ at [28][2]
  • The test as to apparent bias remains, per Lord Hope in Porter v Magill [2001] UKHL 67 at [105], whether: a “fair-minded informed observer, having considered the facts, would conclude there was a real possibility that the tribunal was biased”.
  • The Coroner’s interruption of counsel’s questioning and submissions, as an exercise of case management and to maintain procedural regularity, did not give rise to apparent bias.
  • Per Maguire (COA), the “scope of the investigation and thus evidence called at the inquest is unlikely to be affected by the question whether the Article 2 procedural obligation applies“at [70]
  • As to Prevention of Further Deaths (PFD) reports, there is nothing in the wording of Schedule 5 of the 2009 Act which requires a Coroner to hear submissions before deciding whether the duty for such a report arises.

The judgment is a helpful overview of inter alia the scope of coroner’s case management powers. It will no doubt be an encouraging read for coroners that they are not bound to sit tight-lipped through counsel’s questioning of a witness. They are plainly “entitled to form preliminary views on the basis of the evidence [they have] read and heard, and to test that against the witnesses evidence before [them]” at [47]. 

Devall & Corcoran v Ministry of Justice [2022] EWHC 1608 (QB) (“Devall”)

While not an inquest case, the decision in Devall in June this year is notable in its consideration of the scope of the Article 2 operational duty. The appeal centred around an Article 2 damages claim in respect of the death of the claimant’s son from pneumonia at an Approved Premise at Maidstone. These are residential premises approved by the Secretary of State and governed pursuant to The Offender Management Act 2007 (Approved Premises) Regulations 2014. The purpose of the Approved Premises is to, inter alia, supervise high-risk offenders when they are released from prison on licence.

The Ministry of Justice’s application to strike out that claim had, at first instance, been dismissed. The MoJ’s appeal was further dismissed by Soole J. The appeal centred on the boundaries of Article 2 claims. Soole J concluded inter alia that there was a properly arguable case that the requirement for those who are released on licence to reside at Approved Premises “involves a sufficient form of state control outside the ‘paradigm examples’ identified by the Court in Rabone and Gardner” [at 90].

Mr Justice Soole, in relying on Morahan (EWHC) and Maguire (COA) made clear the “importance of identifying the scope of any alleged Article 2 duty and the type of harm for which the public authority had assumed responsibility” [at 58]. Secondly, relying again on the latter two cases he concluded that the scope of the Article 2 operational duty “continues to be an evolving area of law whose boundaries are not fixed”. Lopes de Sousa Fernandes v. Portugal (2018) 66 EHRR 28 (“Lopes”) has not closed off further development in medical cases where it can be shown that the case falls within the caveat at [163] of the Lopesjudgment. The message conveyed is particularly interesting especially when viewed alongside Morahan (COA) which was heard later in the year (see below).

Davison v HM Senior Coroner for Hertfordshire [2022] EWHC 2343 (Admin) (“Davison”)

In September, the High Court ordered in Davison that a Coroner’s conclusion be quashed and a fresh investigation carried out pursuant to s13 of the Coroners Act 1988 (“s13”).

The case centred around the tragic death of Megan Leanne Davison (“Megan”). Megan suffered from both Type 1 diabetes and diabulimia, “a psychiatric disorder which involves the deliberate omission of insulin doses”. Megan sadly took her own life by hanging in August 2017. The original Coroner’s verdict, which recorded a conclusion of suicide, noted that Megan had “suffered for many years from type 1 diabetes and an eating disorder with bulimic patterns known as diabulimia”. He further concluded that he would not make a Prevention of Future Deaths (PFD) report. The original Coroner heard very limited evidence (and significantly no substantive oral evidence) on diabulimia. Further, it appeared that in his reasoning for the refusal of a PFD report he relied on a BBC website report.

Megan’s mother, Mrs Davison had sought approval from HM Attorney General (AG) to apply to the High Court for a fresh inquest. The AG took the unusual course of obtaining its own psychiatric evidence from Professor Ismail, an expert in diabetes and diabulimia. Relying on that report, and with the approval of the AG, Mrs Davison sought a fresh inquest on nine grounds.

The Court followed the decisions in Sutovic v HM Coroner for Northern District of Greater London [2006] EWHC 1095 (Admin) (“Sutovic”) and Attorney General v HM Coroner for South Yorkshire (West) [2012] EWHC 3773 (Admin). The Court, at [16] placed reliance on Moses LJ statement in Sutovic that

“Notwithstanding the width of the statutory words [in s13(1)(b)], its exercise by courts shows that the factors of central importance are an assessment of the possibility (as opposed to the probability) of a different verdict […]” at [54].

The Court concluded that in the circumstances, the new evidence had “obvious implications for any consideration of the nature and standard of the care which Megan received, and of whether a PFD report is appropriate”. Significantly, such evidence not only added important information but also cast “a different light on the other evidence”. It followed that there was ‘no doubt’ in the Court’s mind that it was necessary or desirable in the interests of justice to order a fresh inquest. The Court went on to say that in any event, it would have allowed the fresh inquest on a number of other overlapping grounds. Rejecting only Mrs Davison’s final ground, the Court however made clear that there was no basis for the Coroner to regard the investigative duty under Article 2 as being engaged.

The decision is worthy of reading in full if not for its analysis of the above, then its detailed consideration of r.23 of the Coroners (Inquests) Rules 2013 on admission of written evidence and further, costs considerations when a Coroner adopts a neutral stance.

R (Morahan) v HM Coroner for West London and others [2022] EWCA Civ 1410 (“Morahan (COA)”)

In Morahan, the Court of Appeal considered when the enhanced investigative duty under Article 2 of the ECHR will be automatically engaged in an inquest. That decision has been recently covered by this blog and can be found here. The analysis of the original decision was covered by our editor and can be found here.

The decision itself, while perhaps unsurprising in its conclusions, is recommended reading for practitioners. The CoA commended and fully endorsed Popplewell LJ’s “impressive and comprehensive analysis” of jurisprudence on the Article 2 operational duty.

At the risk of repeating what has already been expertly covered in our last post, and some of which may appear trite, the CoA concluded inter alia that:

  • An inquest remains an inquisitorial and relatively summary process
  • The procedural Article 2 investigative obligation can arise only when it appears that there may have been a violation of a substantive obligation under Article 2.
  • In certain categories of circumstances, the Article 2 investigative duty will be automatic, in others there must be an arguable breach of the substantive duty
  • the existence of a ‘real and immediate risk’ to life is a necessary but not sufficient condition for the existence of the duty
  • The courts should be cautious not to ‘march ahead of’ the Strasbourg jurisprudence
  • As a voluntary psychiatric patient Ms Morahan’s circumstances did not engage the factors in Rabone.
  • In the circumstances, there was no operational duty to protect Ms Morahan from an accidental overdose of recreational taking of illicit drugs

Aside from the insightful analysis of the approach to Article 2 obligations, the case shines a light on a thread that runs through all of these cases of 2022. That thread is legal aid funding. As will be known, legal aid is not generally available for the families of the deceased at an inquest. However, such funding may be granted when the inquest is brought as an Article 2 investigation.

The funding position has been, and remains, an important factor in the proliferation of Article 2 cases. Such has been a contributor to, at least in the CoA’s view, ‘lengthy delays in the hearing of inquests, a substantial increase in their length with associated escalation in the cost’. The reigning in of the scope of Article 2 investigative duty may be one albeit imperfect response to the above issues.

Turning to the road forward, the case of Maguire was recently heard in the Supreme Court at the end of November. Judgment is reserved and anticipated to be handed down early 2023.

[1] See also R (Smith) v Secretary of State for Defence [2010] UKSC 29; [2011] 1 AC 1 (“Smith”) at [78]

[2] See also R (Gardner) v Secretary of State for Health and Social Care [2022] EWHC 967 Admin) at [226]

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