Court of Appeal Judgment in Relation to Inquests
Park Square BarristersIn R (on the application of T) v HM SENIOR CORONER FOR THE COUNTY OF WEST YORKSHIRE (2017) EWCA Civ 318 the Court of Appeal were asked to deal with an application for judicial review of two decisions of the West Yorkshire Coroner; first to hold an Inquest into the death of a baby who may or may not have been born alive and second not to grant an anonymity order to the baby’s mother.
The Facts |
| In March 2013 the claimant, who was 19 and of Pakistani origin, had attended hospital with the body of a baby girl. She had given birth to the child six days previously, having concealed her pregnancy. She claimed that the child had not cried or made any noise after being born, so she had placed her in a box beneath her bed without checking for signs of life and without telling anybody. A post-mortem was inconclusive as to whether the child had been still-born or had died after birth. The claimant initially said that her pregnancy was the result of rape, but later admitted that that was a lie. She was anxious that her family, particularly her father, should not discover what had happened. The coroner opened an investigation in public and a local newspaper reported the case, naming the claimant. Thereafter, the claimant sought an anonymity order. She claimed that she would otherwise be exposed to a threat to her life and a risk of inhuman and degrading treatment within the meaning of ECHR art.2 and art.3, and that her art.8 rights would be violated. The coroner proceeded with the inquest, concluding that he had jurisdiction to do so without first being satisfied on the balance of probabilities that the child had been born alive. He declined to make an anonymity order, finding that the claimant’s art.8 rights were outweighed by the media’s art.10 right to freedom of expression. |
The Court of Appeal Judgment |
| 1) Jurisdiction; should an inquest be held notwithstanding that the Coroner had not reached a provisional conclusion that the child had, on the balance of probabilities, been born alive.
So long as a coroner suspected that one of the matters set out in the Coroners and Justice Act 2009 s.1(2) was in play, he was empowered by that section to investigate and conduct an inquest into the death of a baby who might or might not have been born alive, without first being satisfied on the balance of probabilities that it had been born alive. |
| There was clearly a public interest in establishing whether such a child had been born alive and how it had died. The coroner’s jurisdiction in that respect had not changed since 1887, and past editions of Jervis on Coroners made it clear that, in relation to the body of an apparently new-born child, a question for consideration at an inquest would be whether or not the child had been born alive. There was no suggestion that before investigating or holding an inquest, the coroner had to look at preliminary information and reach the provisional conclusion that the child had, on the balance of probabilities, been born alive. A coroner had jurisdiction to inquire into the death of a child where the circumstances gave rise to a reasonable suspicion that it had been born alive and died in circumstances calling for investigation. He had the power to gather whatever evidence was necessary, whether as part of an inquiry or part of an investigation that included an inquest.
2) Anonymity; should the baby’s Mother be granted an Anonymity Order |
The Court of Appeal held that the Coroner had given due consideration to the evidence and had been entitled to refuse to make an anonymity order. The threshold for art.2 was high, and the evidence came nowhere near to establishing what was required. There was no specific intelligence that the claimant was at risk from her family or her community and she had moved out of the area in any event. Even assuming that a threat of physical violence could give rise to a violation of art.3, the violation would have to occur through the action or inaction of a state actor. There was no suggestion that the authorities would be unable to provide the claimant with appropriate protection in the face of a credible threat, and no suggestion that naming her would lead to a threat of violence. Her name had already been published and there was no credible evidence that there had been any threats as a result. In terms of art.8, an anonymity order might well reduce the risk of the claimant being exposed to abuse and humiliation, but she had already been named in the press and her identity could be discovered by a simple online search. The balance was strongly in favour of allowing the press to report the inquest. The claimant’s conduct was not a private matter; she had failed to report the child’s birth, concealed her body for six days, and made a false allegation of rape, PJS v News Group Newspapers Ltd [2016] UKSC 26, [2016] A.C. 1081 distinguished. There was a significant public interest in such issues being a matter of public debate on as fully informed a basis as possible. While there were differences between the criminal and coronial jurisdictions, the requirement that justice be done in public was applicable equally to each, and the public reporting of inquests was very important.
Commentary
It appears likely that the first ground of the application for judicial review did not particularly trouble the Court of Appeal. The suggestion that the Coroner would have to have conducted some form of pre-Inquest enquiry, which in reality in this case would involve him examining and adjudicating on in private precisely the same information as would be pertinent to the questions in issue at the Inquest, in particular given that the credibility and veracity of the Claimant’s evidence would appear to be the key factor and would be difficult to test without seeing her give such evidence, would seem impractical in any event. The legislation made it clear that the Coroner was perfectly entitled to open an Inquest in those circumstances.
The second ground of the application was likely to have been more finely balanced. My own view is that the process of an Inquest is meant to be inquisitorial rather than punitive and the suggestion that the facts that she had not immediately reported the death, allied to the fact that she had concealed the body, as well as making a false accusation of rape, would not appear to me to be necessarily relevant; to suggest that in some way reprehensible conduct should influence whether or not she be granted anonymity would seem to be suggestive of a punitive element. If she had committed criminal offences (and it would appear that she had at least potentially done so) then such matters should be dealt with by the criminal courts. It is difficult to see how the revelation of her identity would advance public debate being on a fully informed basis or in other ways assist the purposes of the Inquest. Having said all that however, the fact that her identity was effectively already in the public domain by way of discovery by a simple on-line search made the granting of such an Order pointless and it would appear that the matters she advanced in support of such application failed on a factual evidential basis.
Judy Dawson is a member of the Leeds Park Square Barristers Team Inquests Team which provides pre-hearing advice and representation at Inquests all over the UK.
Contact Judy’s clerk
Madeleine Gray on 0113 202 8603