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In
England and Wales, the inquest is considered to provide
the best opportunity for the state to comply with
its investigative obligations. In the case of Khan,
the judge stated at para 69:
‘under
our law it is the coroner’s inquest, when it
takes place, which furnishes the natural occasion
for the effective judicial inquiry into the cause
of a death that the Convention requires.’
In
that case, the judge held that:
"The
police investigation, in which the family played
no part, and which culminated in a decision not
to prosecute, could not act as a substitute."
However,
if a death results in a contested prosecution involving
a "full exploration of the facts", an inquest
is not required. In Middleton, the court stated
at para 20 and then 30:
"The
European Court has repeatedly recognised that there
are many different ways in which a state may discharge
its procedural obligation to investigate under art
2. In England and Wales an inquest is the means
by which the state ordinarily discharges that obligation,
save where a criminal prosecution intervenes or
a public inquiry is ordered into a major accident,
usually involving multiple fatalities. ....
"In
some cases the state’s procedural obligation
may be discharged by criminal proceedings. This
is most likely to be so where a defendant pleads
not guilty and the trial involves a full exploration
of the facts surrounding the death. It is unlikely
to be so if the defendant’s plea of guilty
is accepted (as in Edwards v UK (2002) 12 BHRC 190),
or the issue at trial is the mental state of the
defendant (as in Amin’s case), because in such
cases the wider issues will probably not be explored."
Making
Inquests compliant with Article 2 obligations.
The issue at the heart of the House of Lords case
of Middleton was, if the inquest is the body
that is discharging the state's investigative obligation,
what, if anything, is required of the inquest "by
way of verdict, judgment, findings or recomendations"
and how, if at all, would inquests have to change
to allow this to happen?
In
relation to the first question, the court held:
"To
meet the procedural requirement of art 2 an inquest
ought ordinarily to culminate in an expression,
however brief, of the jury’s conclusion on
the disputed factual issues at the heart of the
case." [Para 20]
In
relation to the second question, the court discussed
the case of Jamieson (which
is considered in our section on Inquests) and
then went onto rule what is required of an inquest
(in those cases where the inquest is discharging the
states investigative obligation).:
| 31 |
In
some... cases, short verdicts in the traditional
form will enable the jury to express their conclusion
on the central issue canvassed at the inquest.
McCann v UK [3] has already been given
as an example .... The same would be true if the
central issue at the inquest were whether the
deceased had taken his own life or been killed
by another: by choosing between verdicts of suicide
and unlawful killing, the jury would make clear
its factual conclusion. But it is plain that in
other cases a strict Ex p Jamieson approach
will not meet what has been identified above as
the convention requirement. In Keenan v UK
[4] the inquest verdict of death by misadventure
and the certification of asphyxiation by hanging
as the cause of death did not express the jury’s
conclusion on the events leading up to the death.
Similarly, verdicts of unlawful killing in Edwards’
case and Amin’s case, although plainly justified,
would not have enabled the jury to express any
conclusion on what would undoubtedly have been
the major issue at any inquest, the procedures
which led in each case to the deceased and his
killer sharing a cell. |
| 32 |
The
conclusion is inescapable that there are some
cases in which the current regime for conducting
inquests in England and Wales, as hitherto understood
and followed, does not meet the requirements of
the convention. |
The
court stated that only one technical change would
be required to allow the inquests to fulfill the convention
obligations - and that was related to changing the
meaning give to the word 'how (in the context of the
question that needed to be answered at the inquest
of "how a person died?")', so that it not
meant simply, "by what means" but "by
what means and in what circumstances".
The
court went onto say:
| 36 |
This
will not require a change of approach in some
cases, where a traditional short form verdict
will be quite satisfactory, but it will call for
a change of approach in others (see [30]–[31],
above). In the latter class of case it must be
for the coroner, in the exercise of his discretion,
to decide how best, in the particular case, to
elicit the jury’s conclusion on the central
issue or issues. This may be done by inviting
a form of verdict expanded beyond those suggested
in Form 22 of Sch 4 to the 1984 rules. It may
be done, and has (even if very rarely) been done,
by inviting a narrative form of verdict in which
the jury’s factual conclusions are briefly
summarised. It may be done by inviting the jury’s
answer to factual questions put by the coroner.
If the coroner invites either a narrative verdict
or answers to questions, he may find it helpful
to direct the jury with reference to some of the
matters to which a sheriff will have regard in
making his determination under s 6 of the Fatal
Accidents and Sudden Deaths Inquiry (Scotland)
Act 1976: where and when the death took place;
the cause or causes of such death; the defects
in the system which contributed to the death;
and any other factors which are relevant to the
circumstances of the death. It would be open to
parties appearing or represented at the inquest
to make submissions to the coroner on the means
of eliciting the jury’s factual conclusions
and on any questions to be put, but the choice
must be that of the coroner and his decision should
not be disturbed by the courts unless strong grounds
are shown. |
| 37 |
The
prohibition in r 36(2) of the expression of opinion
on matters not comprised within sub-r (1) must
continue to be respected. But it must be read
with reference to the broader interpretation of
‘how’ in s 11(5)(b)(ii) and r 36(1)
and does not preclude conclusions of fact as opposed
to expressions of opinion. However the jury’s
factual conclusion is conveyed, r 42 should not
be infringed. Thus there must be no finding of
criminal liability on the part of a named person.
Nor must the verdict appear to determine any question
of civil liability. Acts or omissions may be recorded,
but expressions suggestive of civil liability,
in particular ‘neglect’ or ‘carelessness’
and related expressions, should be avoided. Self-neglect
and neglect should continue to be treated as terms
of art. A verdict such as that suggested in [45],
below (‘The deceased took his own life, in
part because the risk of his doing so was not
recognised and appropriate precautions were not
taken to prevent him doing so’) embodies
a judgmental conclusion of a factual nature, directly
relating to the circumstances of the death. It
does not identify any individual nor does it address
any issue of criminal or civil liability. It does
not therefore infringe either rr 36(2) or 42. |
It
appears that new definition of 'how' set out in Middleton
and its implications only apply to those cases that
raise article 2 issues (i.e the definition of 'how'
set out in Jamieson still does apply to inquests into
deaths where article 2 is not engaged).
This
would result in a peculiar situation where the meaning
of a statutory provision depending on the circumstances.
In the case of Jordon, the Northern Ireland Court
of Appeal expressed its disamy at the prospect that:
"a
statutory provision could have two interpretations
and effects after the Human Rights Act came into
effect, depending on the particular circumstances"
Such
a situation could also create difficulties for a coroner
who may be unclear whether or not a particular death
could subsequently raise Article 2 issues.
It
should also be noted that the Judge in the case of
Longmore Care Homes commented on Middleton
and said:
"the
comments made by the House [as to the interpreation
of 'how' in the 1998 Act and the 1984 rules] are
not ristricted to verdicts in cases of death where
the State may have had a hand and are of general
application."
Footnote
| 1 |
R
(Amin) v Secretary of State for the Home Department
[2003] 3 WLR 1169 |
|
| 2 |
Jordan
v United Kingdom 37 EHRR 52. |
To
download |
| 3 |
McCann
v United Kingdom 21 EHRR 97 |
|
| 4 |
Keenan
v UK (2001) 10 BHRC 319 |
|
| 5 |
R
(Khan) v. Secretary of State for Health [2003]
EWCA Civ 1129 |
|
| 6 |
R
(Challender) v Legal Services Commission [2004]
EWHC 925 (Admin) |
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