O'Connor, R (on the application of) v Visser

A coroner may return a verdict of unlawful killing only where the evidence establishes, to the criminal standard, both the unlawful act and the necessary mental element. Where insanity is properly raised, it must be disproved to that standard. The inquisitorial nature of an inquest does not justify treating the actor’s mental state as irrelevant. On judicial review, the court should not substitute its own verdict unless, without the error of law, only one decision was available. Where the evidence permits more than one lawful outcome, the appropriate course is to quash and remit for reconsideration.

Liam Hogan died after being pushed from a hotel balcony in Crete by his father, John Hogan, who was subsequently acquitted of manslaughter in Greece on psychiatric evidence. An English coroner nevertheless returned a verdict of unlawful killing after an inquest, treating intention and the possibility of insanity as irrelevant.

The claimant, acting on behalf of Hogan’s grandfather, sought judicial review. The parties accepted that the coroner had materially misdirected himself in law. The central issues were the standard applicable to insanity at an inquest and whether the court could substitute a narrative verdict or was required to remit the matter.

1. The verdict was quashed. A verdict of unlawful killing necessarily involves findings equivalent to those required for at least manslaughter. The coroner therefore had to address the subjective mental element required for the relevant unlawful act. His conclusion that intention and capacity to understand the act were irrelevant was a material error of law. The court also rejected the suggestion that a verdict could stand merely because the physical act was objectively unlawful.
2. Insanity at an inquest. The criminal trial presumption of sanity and the balance-of-probabilities burden on the defendant, described in M’Naghten’s case and R v Sullivan, could not simply be transferred to an inquest. An inquest has no parties, defendant or prosecution, and does not provide the safeguards of a criminal trial. Where insanity is properly raised, the coroner or jury must be sure that the killing was unlawful, including being sure that the perpetrator was not legally insane. This avoids imposing a hybrid and unsatisfactory burden in an inquisitorial process.
3. The psychiatric reports raised the issue of insanity but did not establish it conclusively. The court could not evaluate the incomplete evidence as if sitting at first instance. The reports did not therefore make a verdict other than unlawful killing inevitable, nor did they make that verdict inevitable.
4. Under section 31(5) and (5A) of the Supreme Court Act 1981, substitution was permitted only if, without the error of law, there was only one decision the coroner could have reached. Since more than one lawful conclusion remained possible, the matter was remitted to the coroner for further consideration. It was unnecessary to determine the form of any narrative verdict.

The judgment describes a coroner’s inquest held on 22 August 2006 and adjourned on 26 March 2008. The coroner returned a reasoned verdict of unlawful killing on 27 March 2008. The Divisional Court quashed that verdict and remitted the matter for further consideration.