R Linda Ginn v HM Senior Coroner for Inner London

Hearing date: 10 November 2021

Approved Judgment

A. Introduction

This claim arises out of the inquest held into the death of Mr Robert Ginn, the claimant's brother. Mr Ginn entered HMP Pentonville on 5 November 2018, having been sentenced that day to one year's imprisonment. He was 56 years' old and this was his first custodial sentence. Tragically, about three weeks later, Mr Ginn was found in his prison cell hanging by a ligature, having taken his own life.

Following an inquest into Mr Ginn's death before HM Senior Coroner for Inner London (“the Coroner”) and a jury, on 29 October 2019 the jury recorded a narrative determination in these terms:

“Mr Robert Thomas Ginn died in his cell F1–21 at HM Prison Pentonville, between the hours of 11pm on 28 November 2018 and 1.05am in the morning of 29 November 2018.

We find the cause of death was suicide by hanging.

A contributory factor to his death by suicide was his chronic depression.”

The claimant seeks judicial review, with permission granted by Lang J on 25 June 2020, of the Coroner's directions and decisions on the following grounds:

i) The Coroner failed to properly direct the jury to elicit the full circumstances of the death and to record their findings of fact on the central issues;

ii) The Coroner failed to clearly direct the jury on the test for causation and how to record matters that they concluded more than minimally or trivially contributed to Mr Ginn's death;

iii) If the Coroner decided not to leave any of the central issues to the jury to determine whether they caused or contributed to Mr Ginn's death, other than the quality of the resuscitation attempts, then she failed to indicate that she had withdrawn those issues or to give reasons for that decision; and

iv) The Coroner erred in not directing the jury to record admitted failures under the Tainton principle (derived from R (Tainton) v HM Senior Coroner for Preston and West Lancashire [2016] EWHC 1396 (Admin), [2016] 4 WLR 157), and giving no reasons for that decision.

At the hearing, leading Counsel for the claimant, Mr Stephen Simblet QC, did not seek to maintain the allegation that the Coroner erred in the direction she gave on the test for causation. The remaining aspect of Ground 2, taken together with Ground 1, forms the principal ground of review pursued. In essence, the claimant contends that the Coroner failed to direct the jury as to the law in such a way as to elicit the jury's conclusions on the central factual issues at the inquest. Consequently, she failed to comply with her duty under rule 33 of the Coroners (Inquests) Rules 2013 (2013/1616); and so the jury failed to make the determination required by s.10 of the Coroners and Justice Act 2009 (read with s.5(1)(a) and (b) and s.5(2)), and the inquest failed to meet the UK's obligations under article 2 of the European Convention on Human Rights to investigate Mr Ginn's death.

The claimant's skeleton argument raised an additional issue, not foreshadowed in the grounds on which permission was granted, as to whether the so-called “ Galbraith-plus” test adopted by Haddon-Cave J (as he then was) in R (Secretary of State for Justice) v HM Deputy Coroner for the Eastern District of West Yorkshire [2012] EWHC 1634 (Admin) (“the West Yorkshire case”) was per incuriam or alternatively, in view of the Supreme Court's judgment in R (Maughan) v Oxfordshire Senior Coroner [2020] UKSC 46, [2021] AC 454, should no longer be followed. I address the permissibility of raising this issue in paragraphs 119 to 125 below.

The Coroner has adopted a neutral stance in these proceedings, and so did not take part in the hearing. However, I am grateful to the Coroner for the note (“the defendant's note”) that she provided for the assistance of the court, through counsel instructed on her behalf, Jonathan Glasson QC, and accompanying bundle of materials. I am also grateful to the claimant's and the first interested party's representatives for the assistance they have provided in their written and oral submissions.

B. The procedural history

The investigation into Mr Ginn's death was opened on 13 December 2018; and the inquest was opened on 19 December 2018. The inquest hearing took place from 21 to 29 October 2019.

The claim was filed on 23 January 2020 together with a statement of facts and grounds. Pursuant to a consent order approved on 11 March 2020, the claimant filed an amended statement of facts and grounds on 28 February 2020, and time for service of the defendant's acknowledgment of service was extended.

Having filed an acknowledgment of service on 19 February 2020, indicating an intention to make a submission, on 20 March 2020, the defendant provided the note and accompanying bundle, to which I have referred. Also on 20 March 2020, the first interested party, the Ministry of Justice (“the MOJ”), filed summary grounds of defence. The second interested party has played no part in these proceedings.

On 13 August 2020, following the grant of permission by Lang J on 25 June, the MOJ made a request, pursuant to CPR Part 18, for clarification of the “admitted failures” relied on in ground four. The claimant provided her Part 18 response on 8 September 2020, specifying various matters relied on as “admitted failings”.

On 16 September 2020, the MOJ filed detailed grounds of defence. The Coroner has taken a neutral stance, and so she has not filed detailed grounds, but she relies on the note filed prior to the grant of permission and, on 18 September 2020, the defendant's solicitor filed a statement adducing the official transcripts of the inquest for the assistance of the court.

The claimant filed a reply on 2 October 2020, pursuant to the case management directions given by Lang J.

C. The legal framework

The key legislative provisions

Section 1 of the Coroners and Justice Act 2009 (“the 2009 Act”) provides so far as material:

“(1) A senior coroner who is made aware that the body of a deceased person is within that coroner's area must as soon as practicable conduct an investigation into the person's death if subsection (2) applies.

(2) This subsection applies if the coroner has reason to suspect that –

(a) the deceased died a violent or unnatural death,

(b) the cause of death is unknown, or

(c) the deceased died while in custody or otherwise in state detention.” (Emphasis added.)

Subsection 1(2)(c) applied, as Mr Ginn died in custody, and so the Coroner was under a statutory obligation to conduct an investigation into his death. If the senior coroner has reason to suspect that the deceased died while in custody and that the death was a violent or unnatural one, as was the case here, the inquest must be held – as it was – with a jury: s.7(2) of the 2009 Act.

Section 5 of the 2009 Act provides:

“(1) The purpose of an investigation under this Part into a person's death is to ascertain –

(a) who the deceased was;

(b) how, when and where the deceased came by his or her death;

(c) the particulars (if any) required by the 1953 Act to be registered concerning the death.

(2) Where necessary in order to avoid a breach of any Convention rights (within the meaning of the Human Rights Act 1998), the purpose mentioned in subsection (1)(b) is to be read as including the purpose of ascertaining in what circumstances the deceased came by his or her death.

(3) Neither the senior coroner conducting an investigation under this Part into a person's death nor the jury (if there is one) may express any opinion on any matter other than –

(a) the questions mentioned in subsection (1)(a) and (b) (read with subsection (2) where applicable);

(b) the particulars mentioned in subsection (1)(c).

This is subject to paragraph 7 of Schedule 5.” (Emphasis added.)

Section 10 of the 2009 Act provides, so far as material:

“(1) After hearing the evidence at an inquest into a death, the senior coroner (if there is no jury) or the jury (if there is one) must –

(a) make a determination as to the questions mentioned in section 5(1)(a) and (b) (read with section 5(2) where applicable), and

(b) if particulars are required by the 1953 Act to be registered concerning the death, make a finding as to those particulars.

(2) A determination under subsection (1)(a) may not be framed in such a way as to appear to determine any question of –

(a) criminal liability on the part of a named person, or

(b) civil liability.” (Emphasis added.)

Rule 33 of the Coroners (Inquests) Rules 2013 (2013/1616) (“the 2013 Rules”) provides:

“Where the coroner sits with a jury, the coroner must direct the jury as to the law and provide the jury with a summary of the evidence.” (Emphasis added.)

Rule 34 of the 2013 Rules provides:

“A coroner or in the case of an inquest heard with a jury, the jury, must make a determination and any findings required under section 10 using form 2.”

The prescribed form on which the conclusions of the inquest must be recorded is the record of inquest (form 2). It is set out in the schedule to the 2013 Rules and provides:

“Record of an inquest

The following is the record of the inquest (including the statutory determination and, where required, findings) –

1. Name of the deceased (if known):

2. Medical...