Anderson & Ors, R (on the application of) v HM Coroner for Inner North Greater London

A coroner must not leave unlawful killing to a jury unless the evidence permits a properly reasoned verdict on the criminal standard. The coroner must identify the specific facts capable of constituting the unlawful act and direct the jury on causation. General directions may be misleading where the verdict carries an obvious implication of criminal culpability. A verdict cannot stand where the jury’s findings show confusion about the necessary unlawful act, even though sufficient evidence existed for the verdict to have been left to them.

Roger Sylvester died after police officers restrained him while taking him under section 136 of the Mental Health Act 1983 to a hospital place of safety. An inquest jury returned a verdict of unlawful killing. The police officers sought judicial review, arguing that unlawful killing should not have been left to the jury, that the summing-up was inadequate, and that the jury’s findings were perverse.

The issues were whether evidence supported unlawful killing by an unlawful and dangerous act, whether the directions were legally adequate, and whether a fresh inquest was required.

1. The verdict was quashed. The directions did not clearly tell the jury that unlawful killing could only be established if Roger had been deliberately held prone, face down, for a sufficient period and this had materially contributed to his death.
2. The R v Galbraith 73 Cr App R 124 approach applied. The question was whether, on a reasonably possible view of the evidence, the jury could properly reach the verdict. Witness reliability remained for the jury.
3. There was evidence capable of supporting a finding that Roger had been held prone. It was also open to the jury to find that prone restraint caused hypoxia which contributed more than minimally to the cardiac arrest. The coroner therefore had not erred in leaving unlawful killing to the jury, although he could have declined to leave it.
4. The directions were inadequate because they suggested that unlawful killing could be based on restraint lasting too long or failure to alter Roger’s position. The jury were not properly directed on the necessary unlawful act or causation.
5. An inquest is inquisitorial and does not determine civil or criminal liability. Nevertheless, because an unlawful-killing verdict may condemn identifiable persons as having committed a criminal offence, it must be proved beyond reasonable doubt and the jury must receive clear, case-specific directions.
6. No fresh inquest was ordered. The evidence was exhausted and a fresh jury was unlikely to return a just verdict of unlawful killing.

The judgment concerns judicial review of the inquest verdict. No earlier judicial decision is stated.