Butler, R (on the application of) v HM Coroner for the Black Country District

A traditional inquest must investigate fully, fairly and fearlessly how the deceased came by his death, meaning by what means, but the inquiry is not confined to the final causal link. A coroner may investigate system failures, training and working methods where they may be causally relevant. The scope of the inquiry remains subject to the statutory rules and judicial review for legal error or irrationality. Before exploring a possible unlawful-killing verdict based on gross-negligence manslaughter, the coroner must consider whether the evidence, at its highest and subject to the non-aggregation principle, arguably identifies a gross breach by an individual director. Fairness may require advance disclosure even though the inquest is inquisitorial.

The claimants, directors of a company whose employee died after being struck by a reversing loader, challenged decisions made by the defendant coroner concerning a resumed jury inquest. The inquest was a traditional Jamieson inquest, not an Article 2 Middleton inquest. The challenges concerned the proposed evidence on health and safety systems, training and prior dealings with the HSE; the possible availability of an unlawful-killing verdict; disclosure; refusal of an adjournment; the use of documentary evidence; and apparent bias. The central issues were whether the coroner had adopted an unlawfully wide approach to the inquiry and whether the resumed hearing should proceed before him.

1. The application was granted. The coroner’s decisions were set aside and the resumed inquest was directed to take place before a different coroner or deputy coroner.

2. Where Article 2 is not engaged, “how” the deceased came by his death means by what means. The duty to investigate fully, fairly and fearlessly does not confine the inquiry to the final link in causation. System, training, working methods and safety equipment may be explored where causally relevant, although the coroner must decide when the chain of causation becomes too remote.

3. The coroner erred by failing to consider whether the evidence, at its highest and subject to the non-aggregation principle, suggested an arguable gross breach of duty by an individual director. Individual employees’ acts cannot be aggregated into a composite act of gross negligence.

4. A rule 43 report may be considered when assessing the scope of an inquest, but it is ancillary and cannot justify admitting evidence that the rules and the coroner’s duties do not permit. A narrative verdict must remain brief, neutral and factual.

5. The approach to documentary evidence and disclosure was flawed. Rule 37 did not permit disputed evidence from a living witness to be read merely because the coroner preferred that course. The coroner failed to consider whether fairness required advance disclosure and relied inadequately on an HSE embargo. The resulting refusal to adjourn was at least questionable.

6. The correspondence and handling of disclosure created a real danger of unconscious bias. The resumed hearing should therefore be before a different coroner or deputy coroner.