Joy Dove v HM Assistant Coroner for Teesside and Hartlepool & Anor

The Court of Appeal considered an application under section 13 of the Coroners Act 1988 for a fresh inquest after an Assistant Coroner had recorded a short-form conclusion of suicide. Key legal principles applied include the scope of the power under s 13(1)(b), the distinction between Jamieson and Middleton inquests, the test for causation in inquests (more than minimal or trivial contribution, on the balance of probabilities), and the Rabone criteria for any Article 2 operational duty. The court accepted fresh evidence consisting of an Independent Case Examiner report (the ICE Report) and an expert psychiatric report (Dr Turner). It held that Dr Turner’s evidence could properly support a finding that the abrupt cessation of Employment and Support Allowance contributed to a deterioration in the deceased’s mental state and that, in the interests of justice, a fresh Jamieson inquest should be ordered to consider that issue. The court rejected the submission that the Department of Work and Pensions owed an Article 2 operational duty to the deceased and dismissed that ground of appeal.

This is an appeal against the Divisional Court’s refusal of an application under section 13 of the Coroners Act 1988 to quash an inquest conclusion and order a fresh inquest. The proceedings arise from the death on 21 February 2017 of Jodey Whiting, in respect of which an Assistant Coroner recorded a conclusion of suicide on 24 May 2017.

The appellant, the deceased’s mother, sought a fresh inquest on two narrow grounds based on fresh material obtained after the first inquest: (i) fresh evidence relevant to a Jamieson-style inquiry that the Department of Work and Pensions’ abrupt cessation of the deceased’s ESA contributed to a deterioration in her mental state immediately before her death; and (ii) alternatively that there was an arguable Article 2 operational duty on the part of the Department which had been breached.

Procedural history: inquest by the Assistant Coroner (May 2017); application under s 13 made with Attorney General fiat (21 December 2020); Divisional Court refused the s 13 application ([2021] EWHC 2511 (Admin), 17 September 2021); this appeal to the Court of Appeal followed, with permission granted on the papers.

Relevant facts: the deceased had long-standing physical pain and significant mental health problems, including prior overdose attempts. Her ESA entitlement was reviewed in late 2016/early 2017; procedural failures by the Department led to a decision to stop ESA with effect from 7 February 2017. The Independent Case Examiner’s report concluded the Department had multiple failings and that the benefits cutting-off should not have occurred. An expert psychiatrist (Dr Turner) opined that, on the balance of probabilities, the Department’s failings were likely to have caused a deterioration in the deceased’s mental state and to have substantially affected her vulnerabilities.

Issues framed by the Court: (i) whether the fresh evidence meant a fresh Jamieson inquest was necessary or desirable in the interests of justice under s 13(1)(b); and (ii) whether, alternatively, the facts gave rise to an arguable Article 2 operational duty so that a Middleton inquest was required.

Court’s reasoning: (i) the court accepted that the ICE Report established multiple failures by the Department but that detailed investigation of the Department’s conduct lay largely outside the scope of a Jamieson inquest. The psychiatric evidence of Dr Turner, however, addressed the deceased’s state of mind and the likely impact of the withdrawal of benefits. That evidence was within the proper ambit of a Jamieson inquest because intention and the deceased’s mental state are elements relevant to a suicide conclusion and to any narrative conclusion or findings about how the deceased came by her death. The court found a fresh inquest desirable in the interests of justice to enable the coroner to consider whether to make findings that the Department’s actions contributed to the deceased’s mental health deterioration and, if established, to record those facts and consider whether a Preventing Future Deaths report was warranted. (ii) on Article 2, the court applied the Rabone criteria (including real and immediate risk and state assumption of responsibility) and concluded that the evidence did not establish an arguable operational duty: there was no proper basis to conclude the Department knew or ought to have known of a real and immediate risk to life and the state had not assumed responsibility for the deceased in the sense required to give rise to an Article 2 operational duty. The Article 2 ground was therefore dismissed.

Appeal allowed in part and dismissed in part. The Court allowed the appeal on ground 1 and directed a fresh Jamieson inquest to be held by a different coroner so that, with the benefit of the ICE Report and the expert psychiatric evidence, the coroner may consider whether the Department’s abrupt cessation of ESA contributed to a deterioration in the deceased’s mental state and whether that fact should be reflected in the inquest conclusions and give rise to a Preventing Future Deaths report. The appeal was dismissed on ground 2: there was no arguable Article 2 operational duty owed by the Department to the deceased on the material before the court.

Inquest conducted by the Assistant Coroner for Teesside and Hartlepool, 24 May 2017 (conclusion: suicide). Application under section 13 of the Coroners Act 1988 made with the authority of the Attorney General (21 December 2020). Divisional Court refused the s 13 application on 17 September 2021 ([2021] EWHC 2511 (Admin)). The appellant appealed to the Court of Appeal which, by this judgment ([2023] EWCA Civ 289), allowed the appeal in part (ordering a fresh Jamieson inquest) and dismissed the Article 2 ground.