The claimant applied for judicial review of the defendant coroner’s inquest into her son’s death.
The deceased had died of oesophageal cancer while in custody. An inquest was held at which the NHS trust responsible for his medical care, the interested party, admitted to shortcomings in his medical care. The coroner decided to withdraw from the jury the issue of whether those failings had hastened the deceased’s death on the basis that there were too many “unknowns” to enable the jury to make any safe conclusions on causation. He said that he was unconvinced that he had any general discretion to leave the issue of causation to the jury, but that if he was wrong about that he declined to exercise such discretion because it would not be fair to ask the jury to make conclusions when so much evidence was missing. In those circumstances, he decided to leave to the jury only the short-form conclusion that the deceased had died of natural causes.
HELD: The state’s procedural obligation under ECHR art.2 arose when there was an investigation into a death where it appeared that the substantive obligations under art.2 had or might have been violated, and that the agents of the state were or might be implicated. Where the state discharged its investigative obligation under art.2 by way of an inquest, the verdict had to establish both by what means and in what circumstances the deceased had died. It was a matter for the coroner in the exercise of his discretion to decide how best to elicit the jury’s conclusion on the central issues, R. (on the application of Middleton) v HM Coroner for Western Somerset  UKHL 10,  2 A.C. 182 followed. In the instant case, there was no doubt that the deceased had died from oesophageal cancer and that it was a death by natural causes. If that had been all there was to the case, no question could have arisen as to whether anything further than a short-form “natural causes” conclusion was required. However, the art.2 procedural obligation had arisen not only because the deceased had died while in custody, but also because the circumstances in which he had met his death had included instances of substandard medical care (see paras 56-60 of judgment).
As to causation, an event or conduct said to have caused death must have contributed more than minimally, negligibly or trivially. It had to make an actual and material contribution. Causation had to be proved to the civil standard of proof, and the coroner was bound to leave it to the jury if, but only if, his answer was yes to the following two questions: (a) whether there was evidence on which a jury properly directed could properly conclude that the shortcomings in medical care had measurably hastened the death; (b) whether it would be safe for the jury to reach that conclusion on the evidence. The coroner’s decision to withdraw the issue of causation from the jury had essentially been founded on a negative answer to the second question. He was right to reach that conclusion and was not bound to leave causation to the jury. There were too many unknowns in the factual history, so it would not have been safe for a jury to accept that the deceased’s death had been measurably hastened by the shortcomings in medical care. However, the coroner had been incorrect to rule that he had no discretion to leave to the jury a cause of death that was a mere possibility, short of meeting the civil standard of proof. Nevertheless, he had gone on to say that if he was wrong about that, he exercised his discretion against leaving the issue to the jury. He had been entitled to exercise his discretion in that way (paras 62-65, 67-68, 70-71).
The coroner should have directed the jury to include in the record of inquest a brief narrative of the admitted medical shortcomings. Since the coroner had withdrawn the issue of causation from the jury, such a statement would have to have been supplemented by an explanation that it could not be concluded that the shortcomings had significantly shortened the deceased’s life. Such a statement would have completed the incomplete statement of the circumstances of the death and would have been a fair reflection of the issues on which the inquest had focused. In an inquest where the possibility of a violation of the deceased’s right to life could not be wholly excluded, the Coroners and Justice Act 2009 s.5(1)(b) and s.5(2) should require the inclusion in the record of inquest of any admitted failings forming part of the circumstances of death, even if the jury could not properly find them causative of the death. That was a matter of fairness to the deceased’s family and was required to fully discharge the obligation imposed on the state under art.2 and on the coroner under s.5(1) and s.5(2). The admitted failings were not otiose because they were admitted; they should have formed part of the inquest’s findings precisely because they had been admitted and formed part of the evidence before the jury. The inquest had been deficient to that extent, but a fresh inquest was unnecessary and would serve no useful purpose. The appropriate relief was to grant a declaration that the application was well-founded to that limited extent (paras 73-75, 81, 83).
Application granted in part