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R (Ture) v Senior Coroner for Manchester North [2022] EWHC 1027 (Admin) 4 May 2022

Background

Ture concerned the application for leave for judicial review brought by the Family in the Inquest Touching on the Death of Shukri Yahye Abdi. 12-year-old Shukri died on 27 June 2019 by way of drowning in the River Irwell in Bury, Manchester. Shukri had been led by two children, Child 1 and Child 2, to the river. It was known that she could not swim. At the river, she was taken by Child 1 into deep water, was left there while in difficulties and she drowned. The case gave rise to allegations of bullying and unlawful killing.

A petition calling for “justice for Shukri” gained over one million signatories.

The Inquest opened on 9 July 2019. At the Inquest hearing at Rochdale Coroner’s Court on 4 December 2020, it was found and determined that the medical cause of Shukri’s death was “drowning” and that this was an “Accidental Death”. As to “how, when and where and in what circumstances” Shukri came by her death, the Record of Inquest recorded:

On the 27th June 2019, at a location on the River Irwell near to Dunster Road in Bury, [Shukri] entered the water with another 13 year old girl. She did so following some encouragement. The other child was aware that Shukri could not swim and was reliant on her to stay afloat. They swam out to an area where the water was deeper, at which point the other Child attempted to swim underwater. At this point a combination of the deeper water together with Shukri panicking and the other child struggling to swim meant that she probably pushed Shukri off. Shukri went under the water and drowned.

It was contended by the Family throughout the Inquest that the conclusion of “Unlawful Killing” could properly be found, or alternatively an “Open Conclusion” or “Narrative Conclusion” should be reached.

The Family sought leave for Judicial Review before Mr Justice Fordham in order to quash the Coroner’s findings and conclusion and order that a new inquest be held.

 

Duty of Care and Breach of Duty

The Coroner had been required to consider whether the actions of Child 1 when she led Shukri out into the deep water of the river and left her there constituted gross negligence. The parts of the Coroner’s conclusions dealing with the breach of duty were set out as follows:

 

Duty of Care and Breach of Duty

  1. On balance I am satisfied that a reasonable, ordinary and prudent 13 year old would foresee a risk of injury in the circumstances of this case ie in swimming out into deeper water with someone who you are aware cannot swim, is holding onto you and whereupon you then attempt to swim underwater. In all the circumstances of the case I am satisfied applying the three stage test that Child 1 by her actions assumed a duty of care towards Shukri.

 

Grossly Negligent so as to be criminal 

  1. Which leads me to consider whether the actions of Child 1 in this case were so atrocious, the breach so flagrant, that her actions could properly be characterised as amounting to the most serious of criminal offences namely gross negligence manslaughter.
  2. I find they are not and in my judgment fall far from being so, even applying the balance of probabilities. Child 1 was naïve, she was foolish, she thought she could teach Shukri to swim and this ill-considered act went badly wrong. She did not force Shukri into the water, she did not undertake any actions with the explicit intention of causing her harm. She was in unfamiliar water the dangers of which I am satisfied were not fully appreciated. At its highest this was a serious error of judgment. I am sure the ramification of the 27thJune 2019 will be felt by many for a long time.
  3. I am not satisfied applying the facts I have found to the law that a conclusion of unlawful killing is made out, so cannot return such a conclusion.

 

Application Judicial Review

The primary thrust of the submissions made by way of Judicial Review that the scope and nature of the enquiry had ‘shut down’ certain evidential matters, with the consequence that the Coroner denied herself adequate evidence so as to be able to arrive at proper evidenced conclusions. The primary issues were as follows:

  • The Coroner failed to call Child 1 to give live evidence, on the grounds that her health prevented this
  • The Coroner failed to fully investigate background evidence of “bullying”, relating to past bullying of Shukri;
  • The Coroner failed to fully investigate evidence of “planning” of the incident; and
  • The Coroner failed to fully investigate of Shukri having been “forced” or “pushed” into the water.

Mr Justice Fordham held in a succinct judgment that none of the matters raised constituted any arguable ground for judicial review. While many of his considerations in the judgment were fact specific, there are a number of principles that can be drawn from the judgment.

 

Evidence considered v evidence heard at inquest  

The fact that the Coroner failed to call certain pieces of live evidence, particularly with regard to second-hand suggestions of bullying by the children at the river, did not mean that the Coroner’s decision on scope was unlawfully limited.

Mr Justice Fordham found that all of the material that were relied upon by the Family at the Application for Leave to demonstrate specific deficiencies in the Coroner’s Findings was material that the Coroner had considered as part of her investigation. This was material that had been disclosed to all interested parties and was available to be the “subject of representations by the parties so that the Coroner could make appropriate, informed decisions in the exercise of her full and fearless, inquisitorial function of seeking out facts in the public interest.” In ruling on the scope of the Inquest in relation to background bullying evidence, the Coroner made it clear she had considered carefully all of the (indirect) evidence that hinted at bullying.

As the evidence had been obtained and considered, the Coroner’s approach to scope was lawful, reasonable and fair.

 

Applying for JR and relying on matters not contended for during the initial inquest

Mr Justice Fordham commented in his judgment that he had not been taken to any representation made by the Family during the course of the Inquest that raised with the Coroner any of the points made within the grounds for Judicial Review. He accepted that it might be possible in principle for a coroner to act unlawfully or unreasonably in a way that counsel and solicitors might not spot or object to at the time of an inquest. However, Mr Justice Fordham nonetheless held that it was instructive that neither leading counsel, junior counsel nor the Family’s solicitors had put forth any of the arguments raised in the High Court at the Inquest itself.

32 […] But having said that, when the judicial review Court is asked to accept that there have been basic public law errors warranting the supervisory jurisdiction of judicial review, it must stand at least as a potentially illuminating cross-check to see what Leading and Junior Counsel and their Instructing Solicitor were (and were not) putting forward in the Inquest itself, given their own knowledge and appreciation of the way in which the Inquest process was unfolding and had unfolded and the entirety of the factual and evidential picture, and were (and were not) putting forward when they came to evaluate and frame grounds for judicial review (and grounds of renewal) to impugn the Coroner’s decision-making, reasoning and conclusions.

 

‘No difference’

It was argued on behalf of Child 1, and on behalf of the other children present at the river, that even if there had been some public law error by the Coroner, that error would not have made any difference to the Coroner’s conclusion and so permission for Judicial Review should be refused. This is essentially an argument that states that JR should only be available for an unlawful decision only if, ‘but for’ that unlawful decision, the conclusion would have been materially different.

Mr Justice Fordham did not need to rule on this submission in light of his wider decision. However, he made his distaste for such hypothetical exercises clear:

33 What I will say is that I think it most unlikely, had I thought there was some arguable public law error by the Coroner, that I would have acceded to this ‘no difference’ submission as ‘knock-out’ permission-stage point.

 

Lessons learned

Ture reinforces the fact that it will be hard to challenge the decision taken by a Coroner where that decision has been taken on all available evidence and considered reasons given at various stages of the proceedings. It remains the case that a coroner’s rulings on scope will only be susceptible to judicial review in exceptional circumstances.

 

 

Helena Spector joined PSQB in October 2021 and has a busy practice with particular interest in Regulatory Crime and Inquest and Inquiries.

In order to instruct Helena or to discuss any aspect of her practice please contact her clerks.

 

Madeleine Gray on 0113 202 8603

Patrick Urbina on 0113 213 5250