Lewis, R (on the application of) v HM Coroner for the Mid and North Division of the County of Shropshire & Anor

At an inquest engaging article 2, a jury must determine the actual or probable causes and circumstances of the death. A coroner is not obliged to ask the jury to determine every fact which could, but probably did not, cause or contribute to it.

The coroner nevertheless has power to seek findings about potentially causative circumstances, particularly where facts are disputed or may provide the foundation for a preventative report. The scope of a report under rule 43 of the Coroners Rules 1984 is wider than the jury’s causation inquiry. Although rule 43 was expressed permissively, the evidence and the article 2 obligation may leave reporting as the only lawful exercise of the coroner’s discretion.

A young offender with a history of self-harm hanged himself in his cell. The inquest jury found several failures which caused or contributed to his death, but was not asked to consider deficiencies in the night officer’s training, equipment and response after the deceased was discovered hanging.

The deceased’s father sought judicial review of the coroner’s omission. Sir Thayne Forbes dismissed the claim in the Administrative Court: [2009] EWHC 661 (Admin). On appeal, the issue was whether a coroner must leave to the jury a fact or circumstance which could have caused or contributed to the death, although it could not be shown probably to have done so.

1. Appeal dismissed unanimously. Section 11(5) of the Coroners Act 1988, as read compatibly with article 2 of the European Convention on Human Rights, did not oblige the coroner to leave every possibly causative circumstance to the jury. Its language was more naturally confined to actual or probable causes of death. The deficiencies in training, equipment and response might have affected the outcome, but could not be shown probably to have done so.

2. Article 2 requires an effective investigation capable of establishing the circumstances of a death in state custody, shortcomings in the protective system and the public officials or authorities involved. Domestic law determines how that investigation is divided between the coroner and the jury. The statutory allocation was compatible with article 2 because the jury’s causation inquiry was complemented by the coroner’s wider preventative function.

3. A coroner has power to seek the jury’s findings about circumstances which could, but probably did not, cause or contribute to the death. Such findings may be especially useful where the relevant facts are disputed or uncertain, or where they are needed as the foundation for a report under rule 43 of the Coroners Rules 1984. That power did not amount to an invariable duty to place every potentially causative circumstance before the jury.

4. The scope of rule 43 was not confined to circumstances which probably caused or contributed to the death. Although its wording was permissive, the evidence and the article 2 obligation could leave only one lawful exercise of the coroner’s discretion. The undisputed deficiencies in the officer’s training and equipment, and in the emergency procedure, so clearly called for preventative action that the coroner ought to have reported them. The omission was a breach of rule 43, although it was not pursued as an independent ground of challenge on the appeal.

5. The court interpreted R (Middleton) v West Somerset Coroner [2004] UKHL 10 as preserving the coroner’s discretion over how to elicit the jury’s conclusions and as not requiring the jury to determine reasonable precautions by which a death might have been avoided. The existing division of functions, properly implemented and subject to High Court supervision, fulfilled the investigative requirements of article 2.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously: [2009] EWCA Civ 1403.

2. Administrative Court: Sir Thayne Forbes dismissed the father’s judicial review claim against the coroner: [2009] EWHC 661 (Admin).