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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> T, R (On the Application Of) v HM Senior Coroner for the County of West Yorkshire (Western Area) [2017] EWCA Civ 318 (28 April 2017) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2017/318.html Cite as: [2017] Inquest LR 218, [2018] 2 WLR 211, [2021] QB 205, 182 JP 16, [2017] EWCA Civ 318, [2017] WLR(D) 299, (2018) 182 JP 16 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT
Mr Justice Kerr
CO/6407/2015
Strand, London. WC2A 2LL |
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B e f o r e :
LORD JUSTICE BURNETT
and
LORD JUSTICE IRWIN
____________________
The Queen on the application of T |
Appellant |
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- and - |
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HM Senior Coroner for the County of West Yorkshire (Western Area) |
Respondent |
____________________
Jenni Richards QC (instructed by City of Bradford Metropolitan District Council) for the Respondent
Hearing dates: 21 & 22 February 2017
____________________
Crown Copyright ©
This is the judgment of the court to which each of us has contributed.
The Facts
The initial account given by the claimant
The post mortem and the conclusion of the pathologists
"In conclusion, no natural disease process has been identified and there were no injuries which could explain death. Therefore, the cause of death is best regarded as being unascertained. The post-mortem examination has demonstrated no reason why this infant could not have been born alive and there are some pathological features to suggest that it may have breathed independently, although if it did, the pathology cannot demonstrate whether or not this occurred when it was completely expelled from the mother. There are several factors which may have led to a lack of oxygen (asphyxia) to the body. These include birth asphyxia which is the failure to establish regular breathing at birth or suffocation which was accidental or otherwise."
The claimant's subsequent account
The application for anonymity
"there was insufficient evidence to charge any person with any criminal offences in this case ... The difficulty regarding homicide offences lay in the fact that it could [sic] be established if the baby was alive or not."
The evidence relied on by the claimant on the application for anonymity
"... a member of my family would find out and not knowing if they would do something to harm me. I have a lot of immediate family who live in Keighley and they are not nice people. If they were to find out, they would most definitely harm me or ensure I go to Pakistan to get married because in their view I will have brought shame on the family."
"In particular one member of the family who is not very nice, sent me a text message saying I had brought shame on the family and that if she ever saw me again she would kill me."
The claimant says that text messages persisted and she ceased to read them, turned off her phone, changed her telephone number within days "and so did the rest of my family". She says she did not keep any text messages and deleted her Facebook account. She did not go to the police "because I was scared it would make things worse and even more things would get out".
"There is nothing I or [the claimant]'s mum could do to protect her from the community if it gets out more widely. I can say almost with certainty that as a minimum [the claimant] would be taken to Pakistan and married off by whatever means it would take to do this."
Who would do this is not identified.
"It is not unrealistic for a multi-agency safeguarding team to protect [the claimant] with her active engagement. I would advise that the safeguarding team conduct a specific honour- based risk assessment that is able to identify codes of honour and the risks to inform safeguarding strategies and a safeguarding plan. Karma Nirvana has developed a National Police Risk Assessment Tool that is currently being implemented nationally."
Dr Sanghera also considered that a Forced Marriage Protection Order could be considered, especially as the fears of both mother and aunt reinforce this as a credible threat.
The Jurisdiction Issue
The Statutory Scheme
"Duty to investigate certain deaths
(1) A senior coroner who is made aware that the body of a deceased person is within the 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 detention.
(3) Subsection (1) is subject to sections 2 to 4.
(4) A senior coroner who has reason to believe that -
(a) a death has occurred in or near the coroner's area,
(b) the circumstances of the death are such that there should be an investigation into it, and
(c) the duty to conduct an investigation into the death under subsection (1) does not arise because of the destruction, loss or absence of the body,
may report the matter to the Chief Coroner.
(5) On receiving a report under subsection (4) the Chief Coroner may direct a senior coroner ... to conduct an investigation into the death.
(6) ...
(7) A senior coroner may make whatever enquiries seem necessary in order to decide -
(a) whether the duty under subsection (1) arises;
(b) whether the power under subsection (4) arises.
(8) ..."
S.6 requires a coroner to hold an inquest as part of an investigation unless one of a number of reasons identified in the 2009 Act for discontinuing an investigation after its commencement applies.
"(1) A senior coroner may request a suitable practitioner to make a post-mortem examination of a body if-
(a) the coroner is responsible for conducting an investigation under this part into the death of the person in question, or
(b) a post-mortem examination is necessary to enable the coroner to decide whether the death is one into which the coroner has a duty under section 1(1) to conduct an investigation."
"134. This section sets out the arrangements for ordering postmortem examinations, and makes slightly different provision from that contained in sections 19 and 20 of the [Coroners Act 1988].
135. Subsection (1) gives a senior coroner power to ask a suitable practitioner to make a post-mortem examination of the body if the senior coroner is either responsible for conducting an investigation into the death or a post-mortem examination will enable the senior coroner to decide if he or she has a duty under section 1 to conduct an investigation. This may be relevant where it is not clear whether a death occurred as a result of a notifiable disease or whether a child was stillborn - where, for example, an infant's body is found and it is not clear whether it ever had independent life. Where it is known or established that the child was stillborn, the senior coroner will have no further power to carry out an investigation."
"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 is 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 either with or ... without a jury."
The Coroners Act 1988 consolidated earlier legislation, including the Coroners Act 1887 ["the 1887 Act"], which in s.3(1) had a provision to the same effect:
"Where a coroner is informed that the dead body of a person is lying within his jurisdiction, and there is reasonable cause to suspect that such person has died either a violent or an unnatural death, or has died a sudden death of which the cause is unknown, or that such a person has died in prison, or in such place or under such circumstances as to require an inquest in pursuance of any Act, the coroner, whether the cause of death arose within his jurisdiction or not, shall, as soon as practicable issue his warrant for summoning [jurors] ... there to inquire as jurors touching the death of such person as aforesaid."
"(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 the opinion that a postmortem examination may prove an inquest to be unnecessary -
(a) direct any legally qualified medical practitioner whom, if an inquest were held, he would be entitled to summon as a medical witness ...
(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."
The Coroner's Conclusions
"It would be inconsistent with [the] legislative purpose if subsection (1) were read as importing a further test which had to be satisfied to a higher standard and which could be equally difficult to satisfy as a matter of evidence in a case such as the present. ... If the argument of those representing [the claimant] were right, a coroner could be placed in the impossible position of having to decide an important issue on the balance of probabilities without having the powers under Schedule 5 to the [2009 Act] to gather evidence and call witnesses. Those powers are engaged only when a coroner has commenced an investigation. The present case affords a good example. It is my view that it will only be when I have examined both [the claimant] about the circumstances and aftermath of the delivery and the pathologists about their findings and deductions, that I will be able to make a properly informed conclusion as to whether or not Baby T was born alive."
Submissions
Discussion
"The first question to be determined, however, is whether the child was born alive; firstly, whether the dead body was that of a viable child; secondly, if it had ever breathed; and, thirdly, if it was born alive in a legal sense. ... After July 1, 1927, 'still-births' must be registered by the coroner, if such a verdict is so found at an inquest."
"if an inquest be opened upon a body and it turns out to be that of a still born child, though there can be no verdict as to the cause of death, the coroner nonetheless does transmit to the registrar of deaths a certificate setting out the facts so far as they are known."
"It shall not be lawful for a person who has control over or ordinarily buries bodies in any burial ground to permit to be buried or to bury in such burial ground a still-born child before there is delivered to him either a certificate given by the registrar under the provisions of this Act relating to still-births or, if there has been an inquest an order of a coroner."
"In section 5 (burial of still-born children), for the words after "delivered to him" substitute "either-
(a) a certificate given by the registrar under section 11(2) or (3) of the Births and Deaths Registration Act 1953, or
(b) in a case in relation to which a senior coroner has made enquiries under section 1(7) of the Coroners and Justice Act 2009 (or has purported to conduct an investigation under Part 1 of that Act), an order of the coroner."
The anonymity issue
The applicable legal principles
"As a general rule the English system of administering justice does require that it be done in public: Scott v Scott [1913] AC 417. If the way that courts behave cannot be hidden from the public ear and eye this provides a safeguard against judicial arbitrariness or idiosyncrasy and maintains the public confidence in the administration of justice."
"What's in a name? 'A lot', the press would answer. This is because stories about particular individuals are simply much more attractive to readers than stories about unidentified people. It is just human nature... A requirement to report [a story] in some austere, abstract form, devoid of much of its human interest, could well mean that the report would not be read and the information would not be passed on."
"In any case where a court (having power to do so) allows a name or other matter to be withheld from the public in proceedings before the court, the court may give such directions prohibiting the publication of that name or matter in connection with the proceedings as appear to the court to be necessary for the purpose for which it was so withheld."
However, the exercise of these powers requires justification for the departure from the principle of open justice.
"The wording of this test has been the subject of some critical discussion, but its meaning has been aptly summarised in Northern Ireland by Weatherup J in In re W's Application [2004] NIQB 67, at [17], where he said that 'a real risk is one that is objectively verified and an immediate risk is one that is present and continuing'. It is in my opinion clear that the criterion is and should be one that is not readily satisfied: in other words, the threshold is high."
"the court must ask itself 'whether there is sufficient general, public interest in publishing a report of the proceedings which identifies [AP] to justify any resulting curtailment of his right and his family's right to respect for their private and family life'."
The Coroner's Conclusions
"Since the earlier hearing and the press reporting, she has suffered upsetting abuse but has not faced any retaliatory actions as such. There is no firm or specific basis for saying that she might face such action in future. In this respect, it is noteworthy that the local safeguarding team of West Yorkshire Police said about her situation in a letter dated 23 January 2015 [to which we have referred at paragraph 31 above]:
'There was no specific information or intelligence that she was at risk from her family or the local community; the safeguarding measures were purely precautionary.'"
Submissions
Discussion
Conclusion