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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Flower v HM Coroner for the County of Devon, Plymouth, Torbay and South Devon & Anor [2015] EWHC 3666 (Admin) (16 December 2015) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2015/3666.html Cite as: [2015] EWHC 3666 (Admin), [2015] WLR(D) 558, [2016] WLR 2221, [2015] Inquest LR 327, (2016) 180 JP 141, 180 JP 141, [2016] 1 WLR 2221 |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
AND
THE CHIEF CORONER
(His Honour Judge Thornton QC,
sitting as a Judge of the High Court)
____________________
SUSAN FLOWER |
Applicant |
|
- and - |
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HER MAJESTY'S CORONER FOR THE COUNTY OF DEVON, PLYMOUTH, TORBAY AND SOUTH DEVON -and- THE CHIEF CONSTABLE OF DEVON AND CORNWALL POLICE INDEPENDENT POLICE COMPLAINTS COMMISSION |
Respondent Interested Parties |
____________________
Alison Hewitt (instructed by the Respondent) for the Respondent
Catriona Hodge (instructed by Devon and Cornwall Police Legal Department) for the First Interested Party
The Second Interested Parties did not appear and was not represented.
Hearing date: 17 November 2015
____________________
Crown Copyright ©
Lord Justice McCombe:
(A) Introduction
"a. A mandatory order quashing the original inquest findings into the death of Keith Brian Dance;
b. A mandatory order directing that fresh inquest [sic] be conducted into the death of Keith Brian Dance…"
(and other relief) .
"Order to hold [investigation]
(1) This section applies where, on an application by or under the authority of the Attorney-General, the High Court is satisfied as respects a coroner ("the coroner concerned") either—
(a) that he refuses or neglects to hold an inquest which ought to be held; or
(b) where an inquest [or an investigation] has been held by him, that (whether by reason of fraud, rejection of evidence, irregularity of proceedings, insufficiency of inquiry, the discovery of new facts or evidence or otherwise) it is necessary or desirable in the interests of justice that [an investigation (or as the case may by [sic] another investigation] should be held.
(2) The High Court may—
(a) order an [investigation under Part 1 of the Coroners and Justice Act 2009] to be held into the death either—
(i) by the coroner concerned; or
(ii) by [a senior coroner, area coroner or assistant coroner in the same coroner area];
(b) order the coroner concerned to pay such costs of and incidental to the application as to the court may appear just; and
(c) where an inquest has been held, quash [any inquisition on, or determination or finding made at] that inquest."
"IN PURSUANCE of the Attorney General's powers under the Coroners Act 1988, and IN ACCORDANCE WITH section 1(1) of the Law Officers Act 1997, I HEREBY AUTHORISE Susan Flower to make an application to the High Court of Justice for an order under section 13(1)(b) of the Coroners Act 1988, quashing the original inquest and directing a fresh inquest to be held into the death of Keith Brian Dance."
(B) Factual and Procedural Background
"8 (1) An investigation that is suspended under paragraph 2 may not be resumed unless, but must be resumed if, the senior coroner thinks that there is sufficient reason for resuming it."
"In respect of the investigation into the death of Keith Brian DANCE at…Flat 5, 128 Molesworth Road, Stoke, Plymouth which was suspended under Schedule 1 to the Coroners and Justice Act 2009 on the Twenty-First day of October 2013
I hereby certify as follows…
The investigation has not been resumed.
Criminal proceedings were instituted on a charge of Murder
As a result of those proceedings the defendant [sic: defendants] was Convicted of Murder…".
"6. A senior coroner who conducts an investigation under this Part into a person's death must (as part of the investigation) hold an inquest into the death.
This is subject to section 4(3)(a)"
"Discontinuance where cause of death revealed by post-mortem examination
(1) A senior coroner who is responsible for conducting an investigation under this Part into a person's death must discontinue the investigation if-
(a) an examination under section 14 reveals the cause of death before the coroner has begun holding an inquest into the death, and
(b) the coroner thinks that it is not necessary to continue the investigation.
(2) Subsection (1) does not apply if the coroner has reason to suspect that the deceased-
(a) died a violent or unnatural death, or
(b) died while in custody or otherwise in state detention.
(3) Where a senior coroner discontinues an investigation into a death under this section-
(a) the coroner may not hold an inquest into the death;
(b) no determination or finding under section 10(1) may be made in respect of the death.
This subsection does not prevent a fresh investigation under this Part from being conducted into the death.
(4) A senior coroner who discontinues an investigation into a death under this section must, if requested to do so in writing by an interested person, give to that person as soon as practicable a written explanation as to why the investigation was discontinued."
"A fortiori, a coroner who signs 'Pink Form A' to inform the registrar of deaths that he or she does not propose to conduct an investigation or hold an inquest, is not functus officio either. 'Pink Form A' is an administrative convenience for the registrar of deaths, and not a substitute for a coronial inquiry. There is no authority on the point, but the position is analogous where the coroner, after suspending an investigation because of criminal proceedings or a public inquiry, firstly decides not to resume, but then subsequently becomes aware of facts constituting sufficient reason for doing so.[1] If any of these cases would otherwise satisfy the criteria, except that the body is by then no longer be [sic] in the coroner's area, the coroner cannot inquire without first obtaining from the Chief Coroner a direction to conduct an investigation, but must then do so."
"10. Given that plain scope and rationale of section 19, I have difficulty in understanding why the coroner's position at the end of stage 2 – assuming he decides that an inquest is unnecessary – should be any different from his position in an ordinary section 8 case when he simply decides at the outset that there is no reasonable cause to suspect that the case falls within any of the paragraphs of section 8(1).
11. What, then, do the legal commentators say? Jervis on Coroners, 11th ed (1993), pp.326-327, reads:
'18-05 There is a question mark as to when exactly a coroner becomes functus officio. Before 1927, there was no power to dispense with an inquest where the statutory criteria were satisfied. Nowadays, however, there is a procedure whereby in the case of a sudden death the cause of which is not known, the coroner may order a post mortem examination to be made and may thereafter dispense with an inquest (the so-called 'Pink Form B' procedure). It is not clear whether utilising that procedure renders the coroner thereafter functus officio in relation to that particular death or whether if he thereafter discovered further evidence bringing the case within the other criteria for holding an inquest he could so do without an application to the court having to be made.
18-06 The Attorney General has in the past refused his fiat to an application to the High Court to set aside a 'Pink Form B' on the ground that it is unnecessary, as the coroner was not functus officio. This does not sit easily with the fact that, by statute, the post mortem examination and the coroner's decision taken upon the report thereof take the place of the inquest which (if held) would have made the coroner functus officio.
18-07 On the other hand, a coroner who signs 'Pink Form A' to inform the registrar of deaths that he does not propose to hold an inquest, so as to permit registration of the death, does not in any event become functus officio, because no inquiry equivalent to an inquest has taken place. Consequently, if information subsequently comes to light and the coroner considers he would otherwise have jurisdiction, he is not prevented from acting merely because of his earlier decision not to hold an inquest. 'Pink Form A' is an administrative convenience for the registrar of deaths, and not a substitute for a coronial inquiry.'
12. Halsbury's Laws of England, 4th ed reissue, vol 9(2) (1998), para 948 reads:
'Where a coroner has ordered a post-mortem examination and decided that an inquest is unnecessary, the issue of the appropriate certificate to the registrar of deaths does not constitute an inquest; and the Attorney General may thus refuse a coroner's request for a fiat to apply to the court for an order to hold an inquest on the ground that, as no inquest had been held, the coroner is not functus officio.'
13. It is Mr Hough's submission on behalf of the coroner, founded to some extent on para 18-06, p.326, of Jervis, that the section 19 procedure where it leads to a decision that an inquest is unnecessary and results therefore in the coroner's certificate to the registrar of deaths, takes the place of an inquest. Mr Hough argues that: 'Like an inquest, this procedure is based upon a medical investigation and a coronial decision. Like an inquest, it results in the death being registered on the basis of an ascertained and certified cause.'
14. I would reject this argument. I cannot accept that the section 19 procedure takes the place of an inquest. No doubt the registration of the death on the basis of an ascertained and certified cause following a statutorily bespoken post mortem examination provides a firmer foundation for the decision not to hold an inquest than a mere decision to that effect taken under section 8. It does not, however, follow that in the former case the coroner is functus officio when in the latter he plainly is not. Nor to my mind does this conclusion in any way undermine the obvious value of the section 19 procedure which in many cases will continue to eliminate the need for an inquest. In short, I prefer the view expressed by Dr Burton as the editor of Halsbury's Laws to that expressed in Jervis."
His Honour Judge Thornton QC:
Note 1 Coroners and Justice Act 2009 s.11, Sch.1 para.8; see 10-84. [Back] Note 2 “(2) Where necessary in order to avoid a breach of any Convention rights (within the meaning of the Human Rights Act 1998 (c.42)), 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.” [Back] Note 3 As Mr Bunting notes in his written points on this issue the 2009 Act has not reproduced anything similar to the former section 16(5) of the 1988 Act which provided: “Where a coroner does not resume and inquest which he has adjourned in compliance with subsection (1) above, he shall (without prejudice to subsection (4) above) send to the registrar of deaths a certificate under his hand stating the result of the relevant criminal proceedings”. Mr Bunting notes, however, the continuing practice of providing to the Registrar a certificate in Form 121.
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