Smith, R (On the Application Of) v Assistant Coroner for North West Wales

In a coronial causation challenge, the threshold for causation and the standard of proof are distinct. The question is whether, on the balance of probabilities, the conduct said to have caused the death contributed to it more than minimally, negligibly or trivially. General statistics alone are unlikely to establish causation in an individual case. A coroner conducting an inquisitorial investigation is entitled to reject expert evidence after considering the whole evidential picture. In an Article 2 inquest, the investigation extends to the circumstances of death, but the formal Conclusion must remain brief, factual and free from opinions on civil or criminal liability. Wider criticisms and lessons belong in the Reasons or, where appropriate, a rule 43 report. A finding of neglect in a suicide case is exceptional and requires causative gross failure or gross neglect.

The claimant sought judicial review of the assistant coroner’s Reasons and Record of Inquest following the death of her daughter, Leah Smith, after a period of psychosis and mental-health treatment. Article 2 of the European Convention on Human Rights had been engaged. The inquest considered the availability of consultant psychiatric review, diagnosis, medication, staffing, causation and neglect.

The claimant argued that the coroner had applied the wrong threshold and standard of proof for causation, irrationally rejected expert evidence, failed to conduct or record an adequate Article 2 investigation, and irrationally failed to find neglect. Permission had been granted on the first four grounds; permission on neglect was renewed at the rolled-up hearing.

1. Outcome. The application for judicial review was dismissed. The court invited written submissions on costs.
2. Causation. The threshold for causation was distinct from the standard of proof. Applying R (Tainton) v HM Senior Coroner for Preston and West Lancashire [2016] 4 WLR 157, the question was whether, on the balance of probabilities, the relevant conduct more than minimally, negligibly or trivially contributed to death. The coroner ultimately used that correct formulation. Her isolated references to certainty did not invalidate Reasons which, read as a whole, applied the correct legal test.
3. General statistics could not, without more, establish causation in an individual case. The coroner was entitled to assess the particular evidence, including the limitations of the expert’s general statistical material. Her conclusion that the absence of an earlier face-to-face consultant consultation had no evidential causative effect was rational and supported by the evidence.
4. Expert evidence. An inquest is inquisitorial. The coroner was not bound to accept the expert’s report or oral opinion, particularly where later evidence from treating psychiatrists undermined assumptions underlying the opinion. The coroner’s rejection of the expert’s causation conclusion was rational.
5. Article 2 and the Record. Article 2 expanded the inquiry to include the circumstances in which the deceased came by her death. It did not require every criticism accepted in the Reasons to be repeated in the formal Record. Under section 5(3) of the Coroners and Justice Act 2009, the Conclusion had to remain factual and could not express opinions on liability or blame. The proposed narrative was more like a statement of case and would have been wrong to include. Lessons could, where appropriate, be conveyed through a rule 43 report.
6. Neglect. Neglect was a question of fact. In a suicide case, a finding was exceptional and required both causation and gross failure or gross neglect. Since the coroner’s causation finding stood, refusal to find neglect was unassailable.

This was a first-instance judicial review in the Divisional Court. Permission was granted by Swift J on Grounds 1–4 and refused on Ground 5. Ground 5 was renewed and argued at the hearing, but the claim was dismissed.