R (on the application of Lepage) v HM Assistant Coroner for Inner South London & Ors is an interesting and useful case re-stating the power of the coroner to set the scope of an inquest. The judgment was given by the new Chief Coroner, HHJ Peter Thornton QC.

The case concerned the inquest into the death of an 18-year old female from cocaine toxicity. She had been taken into police custody and observed to try to swallow a package (which it transpired contained cocaine). There was controversy over the manner of the deceased's arrest and restraint, and the actions of a police doctor. After deteriorating, the patient was transferred to hospital where she later died.

The family sought to judicially review some of the coroner's decisions at the inquest and an order quashing the verdict and requiring a fresh inquest. They complained that the coroner did not call an expert witness they had instructed, and did not leave all issues to the jury. As it was an Article 2 inquest (because the deceased was in custody at the time of her death) it was argued that the coroner had a duty to investigate possible, as well as probable, causes of death and to leave the possible causes for the jury to consider.

The claimants’ arguments were dismissed. It was held that the family's expert witness did not add anything to the case and therefore did not need to be called. It was emphasised that the coroner had discretion about which witnesses to call. That discretion of course has to be exercised reasonably but it had been in this case.

The court emphasised that the coroner had a power, but not a duty, to leave to the jury the circumstances which were the possible, but not the probable, causes of death (see R (Lewis) v Mid & North Shropshire Coroner [2010]). The family had tried to distinguish this case from Lewis, on the basis that in Lewis, the coroner made a Rule 43 recommendation. They argued that in the absence of such a report, the power to leave possible causes of death to the jury became a duty. The court rejected this argument and re-stated that the coroner sets the boundaries of his or her inquiry.

So far, so clear. However, the judge then went on to state that although the coroner was lawfully justified in not calling the family's expert witness, it may have been better if she had done so anyway. He stated: "I would like to make this observation. The coroner might have been wiser to have called [the expert]. His evidence may well have added little if anything to the inquiry into the death. But much time, effort, and expense might possibly have been avoided in this application for judicial review, let alone prolonged anxiety for the bereaved family. More importantly, the coroner might have achieved one of the several purposes of a Middleton Article 2 investigation, as emphasised by Lord Bingham in Amin, namely that “suspicion of deliberate wrongdoing (if unjustified) is allayed".

This is comment only; it is not the central part of the judgment. However we can expect that passage to be cited repeatedly to reinforce arguments that witnesses who may in fact add little to an inquest should be called. What this comment in the judgment does not address is the time added and cost to the public purse incurred by calling unnecessary witnesses. Nor does it recognise that, in jury inquests, the very fact that a witness is called is likely to give him or her significance in the eyes of the jury, whatever the coroner may say in his summing-up.