T, R (On the Application Of) v HM Senior Coroner for the County of West Yorkshire (Western Area)

A coroner may investigate, and hold an inquest to determine, whether a baby was born alive or still-born. Section 1 of the Coroners and Justice Act 2009 does not require a prior finding, on the balance of probabilities, that the child was born alive. It is enough that the coroner suspects a matter within section 1(2); whether a death occurred may itself be investigated.

Anonymity in coronial proceedings is a departure from open justice requiring cogent justification. A fact-sensitive balance between Articles 8 and 10 may justify protection, but speculative risks, prior identification and the public importance of the inquest may decisively favour open reporting.

The claimant gave birth alone to a full-term baby, whose body was later taken to hospital. The medical evidence could not determine whether the baby had been born alive or still-born, and the police brought no criminal charge.

The Senior Coroner decided that he had jurisdiction to investigate and hold an inquest. He also refused anonymity and reporting restrictions for the claimant and her family, while ordering practical protective measures. Kerr J granted permission for judicial review on jurisdiction but refused permission on anonymity. Laws LJ granted permission to appeal that refusal and directed that the substantive proceedings be heard by the Court of Appeal.

The central issues were whether the coroner could investigate a possible live birth without first proving one, and whether anonymity was justified.

1. The proceedings were dismissed on both issues. The Coroner had power to investigate whether the baby was born alive and, if so, how she died. His refusal of anonymity was correct.

2. Read as a whole, section 1 of the Coroners and Justice Act 2009 permits an investigation where a baby may have been born alive or may have been still-born. The statutory purpose would be defeated if a coroner had first to determine, on incomplete evidence and on the balance of probabilities, the very question that an investigation and inquest are designed to resolve. The phrase “body of a deceased person” encompasses a child whose status as a person who lived is uncertain for this purpose. Whether a death occurred may form part of the subject matter of the coroner’s suspicion.

3. The construction was supported by the historical coronial jurisdiction, the power to order a post-mortem examination, and the scheme for registration of still-births. It avoided the anomaly that an investigation could proceed if a possibly live-born child’s body had disappeared, but not where the body was available and the medical evidence was inconclusive.

4. Open justice applies fully in coroners’ courts. Anonymity and reporting restrictions require cogent justification. The evidence did not establish the high threshold of a real and immediate risk to life under Article 2, nor a credible evidential basis for physical violence engaging Article 3. The alleged threatening messages were uncorroborated and unreported, the expert evidence was necessarily general, and police safeguarding was precautionary rather than based on specific intelligence.

5. The claimant’s Article 8 rights were engaged, but the Article 8–Article 10 balance strongly favoured open reporting. Her identity had already been published and remained searchable online. The Coroner’s protective arrangements reduced practical exposure. There was a substantial public interest in the circumstances of the birth, the concealment of the body, the false rape allegation, and the investigation of a possible live birth. The common-law fairness analysis led to the same result.

• Court of Appeal (Civil Division) — dismissed the proceedings: [2017] EWCA Civ 318.
• Court of Appeal — Laws LJ granted permission to appeal the refusal of permission on anonymity and directed that the substantive judicial review be heard in the Court of Appeal.
• Administrative Court — Kerr J granted permission to apply for judicial review on jurisdiction, but refused permission on anonymity.