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Jean-Yves Gilg

Editor, Solicitors Journal

Investigating death

Investigating death


Charles Foster considers recent developments in the law relating to inquests

Much of the recent law relating to coroners has related to the scope of inquests, and in particular to the effect of Article 2 of the ECHR. In the case of R (on the application of Hurst) v Commissioner of Police of the Metropolis [2007] UKHL 13, the House of Lords finally resolved a number of uncertainties left hanging in R (on the application of Middleton) v HM Coroner for Western Somerset [2004] 2 AC 182 and Re McKerr [2004] 1 WLR 807. The inquest into the death of Princess Diana and Dodi Fayed generated lurid headlines and a useful review of the law relating to the duty to hold an inquest with a jury.

The scope of inquests: Does Middleton rule all?

Article 2 of the ECHR is the 'right to life' provision. The ambit of the substantive right is much discussed and is outside the scope of this article. Where there is a suspicion of a breach on the part of the State, then the Article imposes an investigatory obligation on the State. This does not apply only where there is a possibility of the involvement of State agents in the death; it applies too where the death is in suspicious circumstances '“ because there there is a possibility that the State has failed in its obligation to protect the right to life: see R (Challender) v Legal Services Commission [2004] EWHC 925 Admin; Menson v UK (2003) 37 EHRR CD220.

There is no obligation to discharge this investigatory duty in any one forum. Indeed the obligation can be discharged piecemeal, by different elements of the investigation being undertaken in different inquiries. The important thing is that the total investigation is Article 2 compliant. But often an inquest will be the only investigation carried out. That is why such a lot of attention has been focused on what is necessary to make an inquest Article 2 compliant. Section 11(5)(b)(ii) of the Coroners Act 1988 requires the inquisition returned at the end of an inquest to set out 'how'¦ the deceased came by his death'. The House of Lords in Middleton explained that Article 2 compliance required 'how' to be read as 'by what means and in what circumstances' the deceased died, and accordingly to state its conclusions on the important underlying issues '“ including the possibility that acts or defaults may have caused the death. This has obvious consequences for the scope of an inquest: one cannot express conclusions about something that has not been investigated.

But should Middleton apply to pre-October 2000 deaths? Should it, indeed, apply to all inquests? That was what was in issue in Hurst.


Troy Hurst was stabbed to death by a neighbour in May 2000. In May 2000 an inquest was opened and immediately adjourned because the neighbour had been charged with murder. In 2001 the neighbour was convicted of manslaughter. In the meantime, on 2 October 2000, the Human Rights Act 1998 came into force. The 1998 Act was not retrospective. After the conviction the deceased's mother asked the coroner to resume the inquest. She wanted the coroner to investigate alleged failings on the part of the police and the housing authority to protect her son from the killer. An Article 2 compliant inquest would arguably have required investigation of those issues. They had not been canvassed in the course of the criminal proceedings. The coroner refused to re-open the inquest.

McKerr, supra, had decided that the investigatory obligation under Article 2 was necessarily linked to the death itself, and accordingly that it did not arise in relation to deaths occurring prior to 2 October 2000. One might have thought that that was the end of the matter. Indeed the House of Lords ultimately decided that it was the end of the matter. But the Court of Appeal decided that McKerr did not have that effect, and that the coroner should re-open the inquest. They did this with an ingenuity which was admired but disapproved by the House of Lords.

Section 3 of the 1998 Act provides: 'So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.' The Court of Appeal said that '[even] before the [1998 Act], domestic tribunals were bound to give full weight to the United Kingdom's international obligations to be found in the ECHR' and that a rational coroner, applying English domestic law accordingly, would have to conclude that the inquest should be resumed. Further, the interpretative obligation under s. 3 of the 1998 Act is 'to give effect to this country's international obligations, and not merely to its domestic obligations as created by the [1998 Act]'. The non-retrospectivity of the 1998 Act did not therefore ablate the obligation to construe section 11 of the Coroners Act in a way consistent with the ECHR. That meant that Middleton must apply, whenever the death occurred.

The clearest repudiation of this reasoning occurs not in Hurst itself but in the judgment of Maurice Kay LJ in Pearson v Inner London Coroner [2005] EWHC 833 (Admin) '“ a judgment expressly approved and extensively cited by the House of Lords. 'One does not reach the stage of resort to section 3 as a tool for interpretation unless and until it is established that the [1998 Act] applies,' he said. 'The logic of McKerr is inexorable. If the positive obligation did not arise in domestic law prior to 2 October 2000 the consequential, secondary, ancillary or adjectival obligation cannot now give rise to a domestic obligation because it is consequential upon and secondary, ancillary and adjectival to the substantive obligation to protect life.'

Lord Hoffmann, in McKerr, had anticipated the point. He dealt with it trenchantly: 'The international law obligation is irrelevant. Either the Act applies to deaths before 2 October 2000 or it does not. If it does, there is no reason why the date of accession to the Convention should matter. It would in principle be necessary to investigate the deaths by State action of the Princes in the Tower.'

It was also argued in Hurst that Middleton should apply to all inquests '“ effectively overruling R v Coroner for North Humberside and Scunthorpe ex p Jamieson [1995] QB 1. Jamieson had decided that the function of an inquest was to determine 'by what means' and not 'in what broad circumstances' the deceased came by his death. This argument was variously put, but what it came to was this: if section 3 is an interpretative section which tells judges how they must read section 11 of the Act, or if the international obligations of the UK have the same effect, surely section 11 must read identically for all purposes.

The House gave this short shrift, observing that the Article 2 obligation only arose where the State's responsibility for the death is or may be engaged; that even where the obligation does arise it will often be satisfied without resort to a Middleton inquest (e.g. by criminal proceedings); and that Middleton accepted that Jamieson was rightly decided. All these assertions beg a number of obvious questions that were not fully answered by the House.

The upshot of all this is that the old divide between Middleton and Jamieson inquests has been reasserted and the brave attempt to make Article 2 rewrite section 11 for all purposes has emphatically failed.

The duty to summon a jury

Much of the judgment in the Royal Inquest case concerned some gloriously arcane points about the jurisdiction of the Coroner of the Queen's Household and some uncontroversial ones about the appearance of bias. The significance for practitioners is what it said about the obligation of a coroner to sit with a jury.

Section 8(3) of the Coroners Act states that there are four sets of circumstances in which the coroner must conduct an inquest with a jury. One of these (s. 8(3)(d)) is 'If it appears to the coroner, either before he proceeds to hold an inquest or in the course of an inquest begun without a jury, that there is reason to suspect'¦ that the death occurred in circumstances the continuance of or possible recurrence of which is prejudicial to the health or safety of the public or any section of the public'.

The relevant circumstances need not cause the death, and the prospect of recurrence needed to trigger the section is low '“ a mere possibility. 'Any section of the public' does not have to be a numerically significant section of the public.

The classic consideration of the statutory predecessor of this section was by the Court of Appeal in R v HM Coroner at Hammersmith ex p Peach (No 1 and 2) [1980] 1 QB 211. Lord Denning MR thought that there must be a jury where 'it is reasonable to expect that some action should be taken to prevent [the recurrence of the relevant circumstances]', Bridge LJ thought that the circumstances referred to were those that 'may reasonably and ought properly to be avoided by the taking of appropriate steps which it is in the power of some responsible body to take', and Sir David Cairns thought that the circumstances were only those 'the continuance or recurrence of which was preventable or to some extent controllable'¦ by a public authority or some other person or body whose activities can be said to affect a substantial section of the public'. As the court in the Royal Inquest noted, 'substantial' in this latter formulation seems to be an error: the statute contains no such requirement.

Section 8(3)(d) is potentially extremely wide. The court in the Royal Inquest, clearly worried about opening the gates to an overwhelming flood of jury inquests, 'assumed' that the narrower construction of Sir David Cairns was correct.

Were there any special circumstances which distinguished the deaths of Princess Diana and Dodi Fayed from other deaths in road traffic accidents? No jury was allowed where a picket was knocked down by a lorry during the mineworkers' strike: see R v HM Coroner for the Eastern District of the Metropolitan County of West Yorkshire ex p National Union of Mineworkers [1985] 150 JP 58. Why were the deaths in Paris any different in principle?

It was arguable, the court found, that the Paris deaths were caused or contributed to by the pursuing paparazzi. 'In our view', it said, 'there is a real likelihood of people in the public eye being pursued by the paparazzi in the future'. This posed a potential risk to the object of the press attention and to bystanders, and 'it is possible that this danger could be prevented by legislation or other means'.

Many will be unpersuaded that ex p the NUM has been properly distinguished. If the court in the Royal Inquest case is right, it seems that the s 8(3)(d) criteria are easily satisfied: coroners can expect more applications for jury inquests.

Where the mandatory provisions of s 8(3) do not apply, s 8(4) gives a coroner discretion to sit without a jury. The court emphasised that the view of the family of the deceased should be taken into an account in deciding how that discretion should be exercised, and that 'it is appropriate to consider whether the facts of the instant case bear any resemblance to the types of situations covered by the mandatory provisions.' All this is plainly right: coroners have been assuming it for years.