R (Morahan) v West London Assistant Coroner

Lord Burnett of Maldon CJ:

1. This is the judgment of the court to which we have all contributed.

2. The issue that arises in this appeal is whether the coroner was correct to conclude that the circumstances of the death of Tanya Morahan shortly after 3 July 2018 do not call for an inquest which complies with the procedural obligation imposed by Art 2 of the European Convention on Human Rights (“the Convention”). Her ruling was given on 23 September 2019. The coroner indicated that she would keep the matter under review. The consequence is that if the evidence available develops in a way which supports the contrary conclusion, she would revisit the issue. The Divisional Court (Popplewell LJ, Garnham J and HHJ Teague KC, Chief Coroner) upheld the Coroner's decision: [2021] EWHC 1603 (Admin), [2021] Inquest LR 126.

3. Ms Morahan died in her flat as a result of cocaine and morphine toxicity whilst under long-standing psychiatric care for schizophrenia. She was a voluntary patient in a unit operated by the Central and North West London NHS Foundation Trust (“the Trust”). She had a history of illicit drug taking but had been abstinent from drugs for many months before her death. There is no basis for suggesting that Ms Morahan took her own life.

4. The impressive and comprehensive judgment of the Divisional Court was given by Popplewell LJ. It contained a detailed analysis of both domestic and Strasbourg caselaw concerning the operational duty imposed by Art 2 of the Convention and the parasitic procedural (or investigative) duty which arises when a death occurs in circumstances where

“it appears that one or other of the substantive obligations has been, or may have been, violated and it appears that agents of the state are, or may be, in some way implicated.”

That formulation comes from the considered opinion of the House of Lords given by Lord Bingham of Cornhill in R (Middleton) v West Somerset Coroner[2004] 2 AC 182, [2004] Inquest LR 17 at [3].

4. Middleton concerned a suicide in custody to which the procedural obligation applied. The question was whether the formal product of an inquest prescribed by s11 of the Coroners Act 1988, as interpreted in R v HM Coroner for North Humberside and Scunthorpe, ex parte Jamieson[1995] QB 1, satisfied the procedural obligation. Section 11(5) provided that the formal inquisition should record “(i) who the deceased was; and (ii) how, when and where the deceased came by his death”. In Jamieson “how” had been interpreted as meaning “by what means” and not as “by what means and in what circumstances”. In Middleton the House of Lords concluded at [16] that

“where … an inquest is the instrument by which the state seeks to discharge its investigative obligation, it seems that an explicit statement, however brief, of the jury's conclusion on the central issue is required.”

Lord Bingham went on to explain that the only change required to the statutory scheme in such Art 2 cases was to interpret “how” in s11(5)(b)(ii) of the 1988 Act and in the Coroners Rules 1984

“in the broader sense previously rejected, namely as meaning not simply ‘by what means’ but ‘by what means and in what circumstances’.”

In the context of suicide in prison Lord Bingham gave an example of what would have sufficed if the evidence supported the conclusion:

“The deceased took his own life in part because the risk of his doing so was not recognised and appropriate precautions were not taken to prevent him doing so” [45].

In all other respects the inquest remained unaffected and the statutory scheme was to be adhered to.

5. The conclusion in Middleton was given statutory force by s5(2) of the Coroners and Justice Act 2009. The language of s11(5)(b)(ii) of the 1988 Act was retained but s5(2) added that where necessary to avoid a breach of Convention rights Lord Bingham's formulation should be used, namely that “how” should mean “by what means and in what circumstances”. Section 10 requires the coroner or jury to determine the questions mentioned in s5, including s5(2) when appropriate. The way in which inquests should be conducted otherwise remains the same. In particular, the restrictions on determining civil liability, or criminal liability on the part of a named person, remain, as does the prohibition against expressing an opinion on any matter save those identified in s5 of the 2009 Act. That is subject to the power of a coroner to make a report to identify action that might be taken to prevent a similar death.

6. An inquest remains an inquisitorial and relatively summary process. It is not a surrogate public inquiry. The range of coroners' cases that have come before the High Court and Court of Appeal in recent years indicate that those features are being lost in some instances and that the expectation of the House of Lords in Middleton of short conclusions in Art 2 cases is sometimes overlooked. This has led to lengthy delays in the hearing of inquests, a substantial increase in their length with associated escalation in the cost of involvement in coronial proceedings. These features are undesirable unless necessary to comply with the statutory scheme.

7. The application (or not) of the Art 2 procedural obligation will not affect the scope of the investigation carried out by a coroner or the breadth of inquiry at the inquest itself. This case is no different because the coroner plans an inquest the breadth of which nobody seeks to criticise. That breadth is unaffected by the question before us. The question whether Art 2 applies, with the result that there should be a Middleton rather than a Jamieson inquest, arises frequently and may be hard fought at a series of pre- inquest reviews. They too often cause undesirable delay. Any decision may be subject to judicial review proceedings. Mr Bowen KC for the appellant was candid about the underlying reason for this phenomenon. Legal aid is not generally available for the families of the deceased at an inquest, but the relevant statutory scheme allows it to be granted, albeit not automatically, when the inquest is the vehicle for satisfying the state's procedural obligation under Art 2 of the Convention.

8. Middleton also established for domestic purposes (reflecting the decisions of the Strasbourg Court) that the procedural obligation can arise only when it appears that there may have been a violation of a substantive obligation under Art 2 (see the quotation from [3] set out above). In other words...