In the matter of an inquest into the death of Raychel Ferguson
| Jurisdiction | Northern Ireland |
| Judge | Mr McCrisken |
| Judgment Date | 09 May 2023 |
| Neutral Citation | [2023] NICoroner 6 |
| Court | Coroners Court (NI) |
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Neutral Citation No: [2023] NICoroner 6
Judgment: approved by the court for handing down
(subject to editorial corrections) *
Ref: [2023] NICoroner 6
Delivered: 09/05/2023
IN THE CORONER’S COURT IN NORTHERN IRELAND
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IN THE MATTER OF AN INQUEST INTO THE DEATH OF
RAYCHEL FERGUSON
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BEFORE CORONER McCRISKEN
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OPEN RULING ON AN APPLICATION FOR RECUSAL
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Introduction
[1] I commenced the hearing of an inquest inquiring into the death of
Raychel Ferguson, on 2 May 2023 in Derry Courthouse. On 4 May 2023, prior to any
evidence being heard, counsel for the Raychel’s next of kin (NoK), made an
application that I should recuse myself from continuing the inquest. I asked that this
application be made in writing and allowed the other properly interested persons
(PIPs) to comment in writing. Coroner’s Counsel also prepared written guidance
which has been shared with the PIPs. I have considered all of the written
submissions before arriving at my decision, which is set out below.
Background
[2] An understanding of the background to this application is important. On
3 May 2023, in advance of the first nurse being called I commenced a hearing into
whether the nurses ought to be warned regarding their privilege against
self-incrimination pursuant to rule 9 of the Coroners (Practice and Procedure) Rules
(Northern Ireland) 1963 (‘the 1963 Rules’) and if so, when such a warning should be
given. I invited each of the Properly Interested Persons (‘PIPs’) to address me on this
issue in advance of the witnesses giving evidence.
[3] Coroner’s Counsel, Mr Chambers BL, indicated that, in his opinion, the
privilege against self-incrimination would be engaged when the nurses were asked
about the care, or lack of care, they provided to Raychel after she had been operated
on. Mr Chambers BL confirmed that there was an active Police Service of
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Northern Ireland (‘PSNI’) investigation into the nurses’ conduct during this time
period.
[4] Counsel for the nurses, Mr Boyle KC, asserted that in all the circumstances,
the test for privilege was made out. He referred to the ongoing PSNI investigation
into all of the deaths which were the subject of the Inquiry into Hyponatraemia
Related Deaths (‘the Inquiry’). He also referred to the fact that each of the nurses
provided detailed statements and were questioned at length during the course of the
Inquiry. Those statements and the transcripts of their evidence have been admitted
as evidence before this inquest pursuant to rule 17 of the 1963 Rules, meaning that I
may consider them. Mr Boyle KC pointed out that each of the nurses had given
statements and evidence to the Inquiry in circumstances where they had been given
an express undertaking that this material could not be used in criminal proceedings
against them. Mr Boyle KC submitted that, in the circumstances, it would be
inappropriate for them to be asked whether they adopted this material as their
evidence in the Inquest since it contained information that might tend to incriminate
them. Mr Chambers BL agreed with this contention.
[5] Ms Gallagher BL, for the Western Health and Social Care Trust (‘the Trust’),
made no submissions and my counsel, Mr Chambers BL, referred me to two leading
judgments on this issue.
[6] Counsel representing Raychel’s next of kin (‘NoK’), Mr Coyle BL, indicated
that he had instructions to remain neutral.
[7] After considering these submissions I decided that it would be appropriate to
give each of the witnesses the warning as envisaged in rule 9 if questions were asked
which, if answered, might incriminate and that this warning should be given at the
point when the nurses were being asked to answer questions relating to the direct
involvement with Raychel’s care.
[8] The first nursing witness to give evidence was Nurse Noble. She answered a
number of general questions asked by Mr Chambers BL regarding her experience
and qualifications. She then answered general questions about Solution 18 and the
fluid management arrangements in place in Altnagelvin in 2001. When
Mr Chambers asked a series of questions directly related to the treatment she had
given to Raychel Ferguson, having been given a warning that the answer may
incriminate her, Nurse Noble indicated that she was declining to answer. Mr Coyle
then asked Nurse Noble questions about her role as a nurse. At one point Mr Coyle
asked a question, the answer to which would clearly infringe against the right not to
self-incriminate, and the witness declined to answer. When Nurse Noble finished
her evidence, the inquest adjourned for lunch.
[9] Upon return from lunch break, Mr Coyle indicated that he had taken
instructions from Mr and Mrs Ferguson, and he was not going to ask any further
questions of the nursing staff. He indicated that I might consider adjourning the
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