Terry v Coroner for East Sussex
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE SIMON BROWN,LORD JUSTICE MAY,LORD JUSTICE DYSON |
| Judgment Date | 12 July 2001 |
| Neutral Citation | [2001] EWCA Civ 1094,[2001] EWCA Civ 148 |
| Docket Number | Case No: C/2000/3711,C/2000/3711 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 July 2001 |
[2001] EWCA Civ 1094
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Simon Brown
Lord Justice May and
Lord Justice Dyson
Case No: C/2000/3711
Mr A. Allston (instructed by Dean Wilson & Laing of Brighton BN1 1UJ) for the Appellant
Mr J. Hough (instructed by Legal Services of The East Sussex County Council of Lewes BN7 1AL) for the Respondent
Albert Edward Hayes Terry died at Hove on 26 May 1994. He was 7For many years his work had exposed him to asbestos dust. Since he died, his family have come to regard his death as asbestos related and they want an inquest to be held into it: death from industrial illness is a well-recognised category of unnatural death —see R v Poplar Coroner ex parte Thomas [1993] 2 WLR 547, 55Her Majesty's coroners for East Sussex, Dr Gooding at the time of the deceased's death and subsequently Mr Craze, have consistently declined to hold such an inquest. On the day following the death, Dr Gooding pursuant to s.19 of the Coroner's Act 1988 (the Act), had obtained from a forensic pathologist, Dr Elspeth Morrison, a post-mortem examination report stating the primary cause of death as respiratory failure and chronic obstructive airway disease (not asbestosis).
The appellant, the deceased's widow, in September 1999 obtained the Attorney-General's fiat to make an application to the High Court under s. 13 of the Act for an order that an inquest be held into the deceased's death. The Divisional Court on 29 November 2000 dismissed the application. The appellant now appeals to this court with the permission of Lord Phillips of Worth Matravers, MR. The main issue upon which he gave permission, although not in fact determinative of the appeal, was an issue raised by the coroner himself as to whether, once he had decided not to hold an inquest under s.19(3) of the Act, he became functus officio. This is said to have been a matter of doubt and difficulty amongst coroners for many years.
The second issue on the appeal is whether in any event – irrespective, therefore, of whether or not the coroner was functus once he had decided not to hold an inquest – the Court should accede to this s.13 application by the deceased's widow. The Divisional Court held not.
Issue 1 –functus officio
When does a coroner become functus officio? Certainly he does so once an inquest has been held. Even if important new evidence then comes to light, there cannot be another inquest into the death unless and until the High Court so orders under s.13 of the Act. In Re Rapier, Deceased [1988] 1 QB 26 illustrates the point, the s.13 application there having been initiated by the coroner himself. Equally certainly the coroner does not become functus officio merely because he decides that he has no duty (and, therefore, no power) to hold an inquest under s.8 of the Act, and notifies the registrar of deaths of his decision by what is colloquially called Pink Form A – see this Court's decision in R v Inner London North Coroner ex parte Touche [2001] 2 All ER 752 as a recent case in point. What is for decision on this appeal is whether a coroner becomes functus officio if, following a post-mortem examination ordered by him under s.19 of the Act, he decides that an inquest is unnecessary and sends the registrar of deaths a certificate in what is known as Pink Form B showing the cause of death as that disclosed by the post mortem examination report.
The Divisional Court (Lord Woolf CJ and Rafferty J) in reserved judgments given on 29 November 2000 (now reported in 2001 QB 559) concluded that once a coroner has made his decision not to hold an inquest under s.19(3):
"At that stage his coronial function is complete. However, it must be in the interests of justice that he could in certain circumstances proceed to review his procedure and/or conclusion if appropriate. He must, in my judgment, be able to do so, but only if assured of a change of circumstances of some significance. Putting it a different way, the rebuttable presumption must be that once he has been informed, has investigated and has made a decision, he has performed his statutory duty. It follows, therefore, that only upon the provision to the coroner of powerful evidence is he required to take further action. Where there is such evidence produced it would be contrary to the spirit of the statute to require him to seek an order of this court before ordering an inquest. S.19(4) expressly preserves a residual jurisdiction which enables him to hold an inquest in the two sets of circumstances there specified and the powers of the High Court under s.13 suggests that the residual jurisdiction is of a general nature." (paragraph 14 of Rafferty J's leading judgment with which Lord Woolf simply agreed).
In granting permission to appeal to this Court Lord Phillips of Worth Matravers MR concluded that that judgment "does not wholly resolve [the] difficulty".
The relevant statutory provisions are these:
"8(1) Where a coroner is informed that the body of a person ('the 'deceased') is lying within his district and there is reasonable cause to suspect that the deceased —
(a) has died a violent or an unnatural death;
(b) has died a sudden death of which the cause if unknown; or
(c) has died in prison or in such a place or in such circumstances as to require an inquest under any other Act,
then, whether the cause of death arose within his district or not, the coroner shall as soon as practicable hold an inquest into the death of the deceased …"
"19(1) Where a coroner is informed that the body of a person is lying within his district and there is reasonable cause to suspect that the person has died a sudden death of which the cause is unknown, the coroner may, if he is of opinion that a post-mortem examination may prove an inquest to be unnecessary –
(a) direct a legally qualified medical practitioner whom, if an inquest were held, he would be entitled to summon as a medical witness under s.21 below; or
(b) request any other legally qualified medical practitioner,
to make a post-mortem examination of the body and to report the result of the examination to the coroner in writing.
(2) For the purposes of a post-mortem examination under this section, the coroner and any person directed or requested by him to make the examination shall have the like powers, authorities and immunities as if the examination were a post-mortem examination directed by the coroner at an inquest into the death of the decased.
(3) Where a post-mortem examination is made under this section and the coroner is satisfied as a result of it that an inquest is unnecessary, he shall send to the registrar of deaths a certificate under his hands stating the cause of death as disclosed by the report of the person making the examination.
(4) Nothing in this section shall be construed as authorising the coroner to dispense with an inquest in any case where there is reasonable cause to suspect that the deceased –
(a) has died a violent or an unnatural death; or
(b) has died in prison or in such a place or in such circumstances as to require an inquest under any other Act."
The effect of s.19 (earlier enacted as s.21 of the Coroners (Amendment) Act 1926) was considered by this court in R v Greater Manchester Coroner ex parte Worch [1988] 1 QB 513. I need cite only the following passages from Slade LJ's leading judgment:
"… there can be no doubt that s.21(1) of the Act of 1926 [now s.19] was intended to confer an entirely new power on coroners to order a post-mortem before an inquest, provided that the three conditions specified in the sub-section are satisfied, namely, (1) the coroner 'is informed that the dead body of a person is lying within his jurisdiction'; (2) 'there is reasonable cause to suspect that the person has died a sudden death of which the cause is unknown'; and (3) the coroner is of opinion that a post mortem examination may prove an inquest to be unnecessary.
…
First, the coroner has to consider whether the three conditions specified in s.21(1) are satisfied. If, but only if, he is so satisfied, he is under no immediate obligation to arrange an inquest 'as soon as practicable,' as he would otherwise have to do under s.3(1) of the Act of 1887 [now s.8(1)], but may instead order a post mortem. However, s.21(1) itself confers no power whatever to dispense with an inquest."
The second stage of the process arises when the result of the post mortem is known. If, but only if, the case is not [within what is now s.8(1)(c)], and the post mortem shows that the death was due to natural causes, the coroner may be satisfied that an inquest is unnecessary. If that is so, he can accordingly dispense with an inquest. However, s.21(3) [now s.19(4)] is there as a reminder so as to make it clear that, after the result of the post mortem is known, the coroner will still be obliged to order an inquest if the case [falls within what are now paragraphs (a) or (c) of s.8(1)]."
In short, if the coroner is satisfied that the three pre-conditions are satisfied, he is under no immediate obligation to hold an inquest as soon as practicable (as otherwise he would be bound to do under s.8(1)(b) since by definition he must have reasonable cause to suspect that the deceased died a sudden death of which the cause is unknown) and can order a post-mortem. If then the post-mortem examination shows that death was due to natural causes, an inquest will be unnecessary since the case will fall neither within paragraph (a) nor paragraph (b) of...
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