Two recent decisions consider the circumstances in which a fresh inquest will be ordered pursuant to section 13 of the Coroners Act 1988.

In Her Majesty‘s Attorney General v (1) Her Majesty’s Coroner of South Yorkshire (West) (2) Her Majesty’s Coroner of West Yorkshire (West) [2012] EWHC 3783 (Admin), the High Court considered an application brought by the Attorney General for a second inquest into the deaths of the ninety six individuals who died as a consequence of the Hillsborough disaster. This followed a Report of the Hillsborough Independent Panel which was published in September 2012.

Section 13 (1) (b) of the Coroners Act 1988 makes provision for a second inquest where, “on an application by or under the authority of the Attorney-General, the High Court is satisfied as respects a coroner ....where an inquest 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 another inquest should be held." By virtue of section 13 (2), the Court has the power to quash the findings of the original inquest. The Court set out the principles to be applied when considering whether the interests of justice make a further inquest either necessary or desirable and held as follows at §10:

“The interests of justice, as they arise in the coronial process, are undefined, but, dealing with it broadly, it seems to us elementary that the emergence of fresh evidence which may reasonably lead to the conclusion that the substantial truth about how an individual met his death was not revealed at the first inquest, will normally make it both desirable and necessary in the interests of justice for a fresh inquest to be ordered. The decision is not based on problems with process, unless the process adopted at the original inquest has caused justice to be diverted or for the inquiry to be insufficient. What is more, it is not a pre-condition to an order for a further inquest that this court should anticipate that a different verdict to the one already reached will be returned. If a different verdict is likely, then the interests of justice will make it necessary for a fresh inquest to be ordered, but even when significant fresh evidence may serve to confirm the correctness of the earlier verdict, it may sometimes nevertheless be desirable for the full extent of the evidence which tends to confirm the correctness of the verdict to be publicly revealed. Without minimising the importance of a proper inquest into every death, where a national disaster of the magnitude of the catastrophe which occurred at Hillsborough on 15 April 1989 has occurred, quite apart from the pressing entitlement of the families of the victims of the disaster to the public revelation of the facts, there is a distinct and separate imperative that the community as a whole should be satisfied that, even if belatedly, the truth should emerge.”

On the facts, the Court accepted that there was evidence which cast new light on the circumstances surrounding the deaths of the victims. In particular, the Court held that the original inquest had been seriously flawed because of the decision to proceed on the assumption that after 3:15pm all deaths were inevitable. The Court  identified four linked consequences of this failing (judgment, §20):

  1. There was no investigation as to whether, contrary to the evidence of the pathologists at the original inquest, some of those who died might well have survived if they had been rescued and quickly and properly treated.
  2. None of the activities, or omissions, of those involved in the co-ordination of the rescue process, and the rescue process itself after the first ambulance arrived on the scene, were examined to see whether their actions or omissions may have made a causal contribution to any of the deaths of those who might have survived.
  3. If with proper rescue facilities some of the deceased might have survived, then the question arises whether deficiencies in the police control of this part of the rescue operation may have aggravated the level of police culpability found by Taylor LJ.
  4. If the rescue facilities were inadequate or disorganised, then there may have been a level of culpability in the emergency services extending beyond the police which contributed to at least some of the deaths.

Any such considerations (and the Court recognised that others may occur) were precluded by the imposition of the cut off period.

The Court concluded that there was a body of credible evidence sufficient to justify quashing the original inquest. The Court attached weight to the findings of the Independent Panel who had rejected the unchallenged evidence of the pathologists which had formed the basis of the conclusions of the Coroner, the High Court and the Stuart-Smith Scrutiny whilst noting the importance of the conclusion of the expert pathologist, Professor Crane, that forensic pathologists could even now provide the necessary advice and assistance to enable a coroner to carry out “effective inquests” in relation to the victims.

Notwithstanding the finding that the issue of the 3:15pm cut off was in itself sufficient to justify a second inquest, the Court identified a number of further considerations which reinforced the conclusion that a second inquest was appropriate, namely: the prominence attached to evidence of alcohol consumption among fans; the fact that the inquest jury was ignorant of the extent of the amendments and alterations to the police statements, some of which may have had the effect of concealing evidence relevant to neglect and breach of duty; and the evidence before the Independent Panel revealing the safety concerns as to the suitability of the stadium as a venue.

When ruling that there should be a new inquest, the Court emphasised that it would not be a public inquiry and noted that it would be for the coroner to decide:

  1. what evidence bears on the questions which the inquest is required to answer;
  2. the format of the inquest;
  3. whether Article 2 of the European Convention on Human Rights is engaged in this inquest, and, if so, the form that it should take to address these issues; and
  4. the state of any investigation being made into possible criminal offences and whether or not that investigation might be prejudiced or held back by the order for an inquest.  

However, the Court also expressly recorded in its judgment that they would deprecate the new inquest descending into “the kind of adversarial battle which … scarred the original inquest.”

It is of note that whilst the need to vindicate the families of those who died and to respect the memory of each victim was explicitly recognised by the Court, the decisive factors in granting the application for a second inquest were related to the availability of fresh evidence, as uncovered by the Independent Panel Report.

In the second recent decision considering the application of section 13, the Court also focused on the availability of new evidence, again in circumstances in which the family members had persisted in their efforts to have a fresh inquest. In R (on the application of Markham) v HM Coroner for the Western District of Greater London [2013] EWHC 253 (Admin), the Claimant brought an application with the Attorney General’s fiat for a fresh inquest into the death of his son, James Markham, a seemingly healthy music student who collapsed and died on 20 November 2001. The evidence before the first inquest was inconclusive as to the cause of death and the coroner had pronounced a verdict of “unknown natural causes”, with the cause of death being “unascertained”. Subsequently, his family had blood samples of James’s DNA tested which revealed that he had suffered from a genetic fault known as Long QT Syndrome which had caused him to suffer a cardiac arrest. James’s father (the Claimant) had applied to have the death certificate amended to reflect the true cause of death but the General Register Office was unable to make the amendment without a fresh inquest as it would be an alteration of substance relating to the cause of death within the meaning of section 29 (4) of the Births and Deaths Registration Act 1953. The coroner supported the father’s application to have the inquest and inquisition quashed. In a brief judgment given by HHJ Thornton, the Chief Coroner, sitting as a Judge of the High Court, the Court held that having read the new medical evidence and the genetic testing reports, it was satisfied that it is necessary and desirable in the interests of justice, under section 13(1)(b) of the Coroners Act 1988, that another inquest should be held.

Since the Court’s judgment, Lord Justice Goldring has been appointed to act as coroner and has ruled that the inquest will take place in early 2014, without awaiting the outcome of the criminal investigations that are currently underway. The repeal of section 5(2) of the Coroners Act 1998 means that there is no longer an absolute legal requirement for inquests to be held in a particular geographical area. In a ruling dated 2 May 2013 Lord Justice Goldring has confirmed that the inquest will take place in the north west (although not in Liverpool) explaining that:

“In the ordinary course of events, inquests can be expected to take place at a location which is most convenient to the bereaved and other interested persons and witnesses. In this case it is reasonably to be expected that these inquests will also attract considerable and justifiable interest both from survivors and the local community”.

His ruling can be read at http://hillsboroughinquests.independent.gov.uk/documents-and-rulings.