2018 provided much food for thought for those practising in inquest law, with significant judgments on the burden on proof in suicide, on scope in relation to the Birmingham pub bombings, on causation in relation to medical negligence, on the relevance of non-causative findings to the record of inquest and on costs.
Listen to Jeremy Hyam QC and Emma-Louise Fenelon provide a whistlestop tour of the most significant developments in inquest law in 2018 on Audioboom here. All episodes are available on your favourite podcast platforms including Audioboom, Spotify, Apple Podcasts, Audioboom, Podbean or you can find out more on the UK Human Rights Blog. Please remember to rate and review us if you like what you hear.
Citations for cases mentioned on the podcast and links to related blog articles written by members of chambers are contained below, as is a brief analysis of R (Paul Worthington) v HM Senior Coroner for the County of Cumbria  EWHC 3386 (Admin), a decision which was unfortunately handed down too late for consideration in the podcast episode. The episode is a available here.
On behalf of Rosalind English and myself, I would like to thank our producer Simon Jarvis at Whistledown Studios, everyone who contributed to the podcast so far this year and our audience for helping us reach over 100,000 listens. In 2019 we have an exciting line up of new episodes, including James Badenoch QC on Bolam, Guy Mansfield QC on limitation and the Mau Mau litigation, John Whitting QC on Montgomery and a special guest speaking about the soon-to-be-released Ruth Bader Ginsburg documentary ‘RBG’. We hope you keep listening. In the meantime, a very Merry Christmas.
1. Cab-Rank Burial Policy
Readers will be familiar with the controversy surrounding the cab-rank policy adopted by HM Coroner Inner North London, Mary Hassell, who refused to prioritise burials or the release of bodies on the basis of the religion of the deceased or their family. In R ((1) Adath Yisroel Buriel Society (2) Ita Cymerman) v HM Senior Coroner For Inner North London (Defendant) & Chief Coroner of England & Wales (Interested Party)  EWHC 969 (Admin), the Court found this policy to be unlawful, irrational and discriminatory. Shaheen Rahman QC wrote about this case on the blog here. Shortly following this decision, the Chief Coroner issued Guidance No 28, Report of Death to the Coroner: Decision Making and Expedited Decisions.
2. Burden of Proof in Suicide
No review of inquest law in 2018 would be complete without reference to R (Maughan) v HM Senior Coroner Oxfordshire and others, in which the burden of proof in relation to a finding of suicide was examined and re-stated. You can find analysis by Owain Thomas QC, who wrote about the case for the blog here.
3. Scope and the Birmingham Pub Bombings
In Coroner for the Birmingham Inquests v Hambleton & Ors  EWCA Civ 2081 the Court of Appeal addressed whether as part of his investigation into the deaths of the 21 victims of the 1974 Birmingham pub bombings, the Coroner was obliged to call evidence directed at identifying those responsible for the bombings, ruling that he was not so obliged. Darragh Coffey wrote about this case for the blog, here. 1 Crown Office Row’s Peter Skelton QC, Mathew Hill and Gideon Barth appeared on behalf of the Coroner.
4. Causation in Medical Negligence
R (Parkinson) v HM Senior Coroner for Kent  EWHC 1501 (Admin)considered system failure in the medical negligence context, denying any hope that this avenue remained open following the ECHR Grand Chamber decision in Lopes de Sousa Fernandes v. Portugal (App. No. 56080/13). Find the blog article written by Jeremy Hyam QC here.
5. Non-Causative Findings and the Record of Inquest
There was one decision, that unfortunately came out too late for inclusion in our podcast episode, but bears mentioning in this update. The deeply disturbing case of Poppi Worthington may be familiar to readers. Poppi was 13 months old when she died on 12 December 2012. A post mortem examination suggested that, shortly before her death, she had suffered acute injuries to her anus and rectum.
The Family Proceedings
In a judgment handed down on 28 March 2014 following a fact-finding hearing arising out of family proceedings, Jackson J concluded that in the hours before Poppi’s death, her father perpetrated a penetrative anal assault on her, either using his penis or some other unidentified object. He found that Poppi later died from a cause which, on the evidence before him, was medically unascertained. That judgment was not published until 2016, and became subject to a Reporting Restriction Order. Unusually, a further fact-finding hearing was held before the same judge in 2015, concerning new evidence as to the interpretation of the post mortem. The original findings were upheld.
The First and Second Inquest
An inquest was held in October 2014. The Coroner, who was given a copy of the initial, closed, fact-finding judgment, heard no evidence. The inquest was reported to have lasted 7 minutes. He indicated that he had taken account of and adopted the factual findings made by that judgment, but said that he was unable to refer to the findings because of reporting restrictions. The record of inquest recorded that the cause of death was “unascertained”; and the part of the record headed “How, when and where the deceased came by his or her death” was left blank.
Following much disquiet about the initial inquest, in July 2015 a new inquest was ordered on the application by the newly appointed HM Senior Coroner for Cumbria, David Roberts. The second inquest, was held in late 2017. The Coroner found that on the night she died, Poppi had been taken from her own cot to a double bed where she was anally penetrated. This had not, however, caused or contributed to her death which, he found, had been caused by her unsafe sleeping position. The finding in relation to anal penetration was included in his review of potential conclusions and the record of inquest.
Judicial Review Proceedings
Poppi’s father challenged the Coroner’s findings, arguing that by including the above references to anal penetration where this was non-causative and in the context of Jamiesoninquest, he had erred in failing to confine himself to ascertaining and recording ‘how’ Poppi’s death occurred as he was required to do. He had, it was submitted, trespassed into the circumstances in which it occurred, essentially treating this as a Middletoninquest.
The Divisional Court judgment was handed down last week (Westlaw link here). Noting the length of the Coroner’s substantial review of the evidence, which ran to almost a hundred pages and which the Court described as ‘exemplary’, the Court rejected the Claimant’s submissions.
Emphasising the discretion residing in a Coroner to determine the scope of the enquiry, subject to challenge only on the usual public law grounds, the Court reiterated that it is a function of an inquest to seek out and record as many of the facts concerning the death as the public interest requires, without deducing from these facts any determination of blame.
It had been the Coroner’s view that his finding that Poppi was anally penetrated shortly before her death was an integral part of the factual matrix which formed the immediate circumstances of her death. It was the direct cause of the injuries sustained by her shortly before she died and the immediate circumstance which resulted in her unsafe sleeping environment. The Coroner considered the inclusion of this fact appropriate because the reference was factual and the person responsible (even if apparent from the evidence) was not named.
The Court found no fault with this approach, holding that the Coroner has been both entitled and right to include it to explain the circumstances of her unsafe sleeping environment and his reasons for rejecting a conclusion of unlawful killing and accidental death. The Court commended the Coroner’s patently careful and neutral language in doing so.
Crucially, the Court held that to set out a negative conclusion in the determination of an issue that was suggested as causative, but that did not cause death, is not proscribed by the statutory provisions. In the circumstances of a particular case, this may be appropriate or even obligatory to ensure the legal requirements for such a determination are met. In the present case, without any reference to anal penetration, the Record would “clearly be deficient”.
In Jamieson inquests, the question of whether non-causative findings ought to be included within the record of inquest is one that bedevils practitioners and Coroners alike. Given the statutory requirement that the record of inquest should not seek to ascribe blame, whether a record of inquest should record a ‘failing’ or act, or make no reference at all, when this did not in any way cause or contribute to death is highly fact specific and often contentious.
The above decision illustrates the Court’s reluctance to micromanage inquests by constraining the proper discretion of a Coroner to record the answer to ‘how’ a death was caused. A Court will, therefore, be slow to intervene to criticise “an accurate, neutral and otherwise inoffensive recital of facts which a corner considers to be relevant to “how” the death occurred even in a Jamieson inquest.”
Rejecting the suggestion that the scope in a Jamieson inquest is to be construed narrowly, the Court underlined that the question of how the deceased came by his death is clearly wider than merely finding the medical cause of death.
The judgment concluded with some interesting comments on the matter of costs. The Court re-stated the general principles that applied, and in particular that where an inferior court or tribunal appeared in proceedings to assist the court neutrally, the established practice was to treat it as a neutral party, so that it would not make an order for costs in its favour or an order for costs against it whatever the outcome of the application. In the present case the Coroner had stated that he proposed to take a neutral stance. The Court found, however, that he did not do so in practice. As the Coroner had succeeded, the usual costs order against the Claimant therefore applied.
The final paragraph will be of particular interest to practitioners:
[W]e should add that we do not condone any practice of Coroners or any other form of tribunal defendant in judicial review proceedings, insofar as it exists, of stating that they are taking a neutral stance in respect of those proceedings, but then making submissions that are clearly not neutral but partisan. The tribunal must decide what course it proposes to take, neutral or not neutral, and then make submissions accordingly. If it decides on neutrality, it must not make any submissions that are less than neutral. In particular, it cannot seek to avoid the adverse consequences of being less than neutral by mere reference to Davies; and, if it seeks to do so and is unsuccessful in defending the claim, then it will run the risk of having a costs order against it in line with usual cost principles and CPR rule 44.2(2)(a).
For an illustration of the considerations that apply in a situation in which a Coroner is found to be a non-neutral and unsuccessful party, readers will recall the judgment in R (on the application of) v HM Senior Coroner for Inner North London  EWHC 1286 (Admin), delivered shortly after the substantive decision concerning the cab-rank burial policy case discussed above. In that case the Court held that the Coroner had ceased to act neutrally in the proceedings, crossing the line into advocating the correctness of her policy rather than merely assisting the court. It was held, therefore, proper that she should pay the claimants’ reasonable costs from the date on which she had ceased to be neutral.