R (O'Connor) v Avon Coroner
| Jurisdiction | England & Wales |
| Judgment Date | 18 May 2009 |
| Neutral Citation | [2009] EWHC 854 (Admin) |
| Docket Number | Case No: CO/4686/2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 18 May 2009 |
[2009] EWHC 854 (Admin)
IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
Before: President of The Queen's Bench Division
The Honourable Mrs Justice Dobbs
Case No: CO/4686/2008
James Badenoch QC and Matthew Barnes (instructed by Withy King, Solicitors) for the Claimant
Hugh Mercer QC (instructed by Bristol City Council, Solicitors) for the Defendant
Mr Gareth Patterson and Victoria Ailes (instructed by Lovells, Solicitors)-for the Intervener)
Hearing date: 1 April 2009
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Sir Anthony May, President of the Queen's Bench Division:
This is the judgment of the court.
Introduction
Liam Hogan, aged 6, died in tragic circumstances in the late evening of 15 th August 2006. He was on holiday in Ierapetra in Crete with his mother, Natasha Visser, his father, John Hogan, and his younger sister, Mia, then aged 2. The family was staying at the Hotel Petra Mare in a fourth floor room. The room had a balcony. The parents' marriage was in difficulties and one of the purposes of the holiday was to try to resolve doubts about it. On 15 th August 2006, there was an argument as a result of which John Hogan made attempts to end the holiday early believing that there would be a separation on their return. At about 10.15p.m., Natasha Visser was in the hotel room repacking suitcases, when John Hogan came into the room. There was a further argument which ended, from Natasha Visser's perspective, in silence and an empty room. John Hogan had gone with the two children to the balcony, onto which he lifted them and pushed them off. He then threw himself from the balcony. They all fell 50 feet or so to the ground. Mia and John Hogan survived. Liam died from his injuries.
John Hogan was tried in Greece for manslaughter. He was acquitted on the evidence of one or more psychiatrists who gave evidence as to his mental state at the time of the killing. The Greek court held that “the objective existence of the crime[s] of manslaughter due to intent … has been proven”. But, relying on the evidence of a psychiatrist, Professor Ioannis Nestoros, and other evidence, the court held that feelings generated by the prospect of his wife and children moving away activated a psychosis constituting temporary schizophrenia, and created intense feeling of rejection and inadequacy so that his mental functions were disturbed. He was temporarily flooded with suicidal thoughts and “was totally deprived of the ability to realise the wrongdoing of his actions”. He was declared to be innocent. We are told that nevertheless he remains detained in a Greek psychiatric institution.
On 22 nd August 2006 and by adjournment on 26 th March 2008, H.M. Coroner for the District of Avon held an inquest without a jury into Liam Hogan's death. The coroner delivered a reasoned verdict on 27 th March 2008 concluding that Liam Hogan had been unlawfully killed. This claim for judicial review, brought by Christine O'Connor as legal representative of John Hogan, Liam Hogan's elderly grandfather, invites the court to quash the verdict of unlawful killing on the main ground that it was reached by reasoning which was wrong in law, and that it could not rationally have been arrived at on the evidence. Mr James Badenoch QC, for the claimant, asks the court to substitute a narrative verdict descriptive of the circumstances in which Liam Hogan died. The defendant coroner, represented by Mr Hugh Mercer QC, seeks to assist the court; does not in substance seek to uphold the verdict, acknowledging the error of law; but suggests that a different narrative verdict may be appropriate. Natasha Visser, who now lives in Australia with Mia and who intervenes, invites the court to remit the matter to the coroner for further consideration. Mr Gareth Patterson, on her behalf, submits that section 31(5A) of the Supreme Court Act 1981, as substituted with effect from 6 th April 2008 by section 141 of the Tribunals Courts and Enforcement Act 2007, precludes this court from substituting its own decision, because there would not be “only one decision which [the coroner] could have reached” without the error of law. There may be a practical complication, if this court remits the matter, because we are told, without being given details, that the Coroner for Avon is currently under suspension from his office. It was suggested by Mr Mercer at the hearing that the acting coroner might nevertheless ask the suspended coroner to continue this particular inquest as a deputy coroner. We should be surprised if that were appropriate, and Mr Mercer has confirmed since the hearing that the acting coroner has made it clear that the coroner would not be able to complete this inquest if the matter is remitted and he remains under suspension.
The law
The relevant law is largely, with one point of exception, uncontentious. But certain matters need to be briefly stated.
A coroner's inquisition has, by section 11(5)(b) of the Coroner's Act 1988, to set out, so far as such particulars have been proved, how, when and where the deceased came by his death. By section 11(6), where a person came by his death by murder, manslaughter or infanticide, the purpose of the inquest is not to include the finding of any person guilty of the murder, manslaughter or infanticide. A coroner's inquisition shall in no case charge a person with any of those offences. The historical antecedents of this section include that, before 1977, a coroner's inquisition finding homicide operated as an indictment of the person so charged, who would be committed upon the inquisition for trial in the criminal courts. This power was abolished by section 56(1) of the Criminal Law Act 1977 on the recommendation of a committee chaired by Mr Norman Brodrick QC which reported in 1971 (Cmnd 4810). A conclusion of unlawful killing then introduced was not intended to indicate even a prima facia case of criminal liability. It was “to enable the judgment—neutral fact of how the deceased came by his death to be recorded … it was hoped to turn the verdict into a purely factual record.”– see Jervis on Coroners 12 th edition paragraph 13–31. Thus rule 42 of the Coroners' Rules 1984 provides that no verdict is to be framed in such a way as to appear to determine any question of criminal or civil liability on the part of a named person.
As Mr Mercer pointed out to us, if Liam Hogan had died in this jurisdiction, his inquest would have been adjourned under section 16(1) of the 1988 Act pending criminal proceedings, if such had taken place. Following criminal proceedings, the finding of an adjourned inquest as to the cause of death must not be inconsistent with the outcome of the criminal proceedings (section 16(7)). These provisions do not apply to criminal proceedings outside this jurisdiction. It is accepted – with some theoretical misgivings perhaps on the part of Mr Mercer—that the coroner was not bound by the outcome of the Greek criminal proceedings and that an English inquest has to proceed in accordance with English law. The coroner's verdict of unlawful killing did not technically offend section 16(7) of the 1988 Act. We are told that the Crown Prosecution Service has decided not to prosecute Mr Hogan in this jurisdiction.
As paragraph 13–32 of Jervis explains, before 1977 a coroner's inquisition finding of murder or manslaughter operated to charge the person concerned, but not to convict them. After 1977, the verdict was designed to be factual rather than judgmental, but it is difficult to state that a person has been the victim of unlawful killing without first being satisfied that a crime amounting to unlawful killing has been committed. On the uncontentious facts of the present case, if Liam Hogan was killed unlawfully, it would be difficult, other than in a purely formal sense, to comply with rule 42 by suppressing the necessary corollary that it was John Hogan who unlawfully killed him. As Sir Thomas Bingham MR said in R v North Humberside Coroner ex parte Jamieson [1995] QB 1 at page 24H, in cases of conflict, the statutory duty to ascertain how the deceased came by his death must prevail over the prohibition in rule 42. But the scope for conflict may be small. Plainly the coroner may explore facts bearing on criminal and civil liabilities. But the verdict may not appear to determine any question of criminal liability on the part of a named person. There can be no objection to a verdict which incorporates a brief neutral factual statement, but such verdict must be factual expressing no judgment or opinions.
Although there is surprisingly little direct authority on the point, a coroner's verdict of unlawful killing necessarily predicates a finding equivalent to that required for a conviction of at least manslaughter in a criminal trial. Authorities, including R v West London Coroner ex parte Gray [1988] 1 QB 467, establish that an inquest's conclusion of unlawful killing cannot be reached unless the coroner or jury are so satisfied to the criminal standard of proof. As Watkins LJ said in Gray at page 477G, it was unthinkable that a coroner's jury should find the commission, although not identifying the offender, of a criminal offence, without being satisfied beyond reasonable doubt. The practical guidance given in Gray by Watkins LJ was approved as correct in the judgment of...
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