R (on the application of Cash) v County of Northamptonshire Coroner [2007] EWHC 1354 (Admin), All ER (D) 71 (Jun)
Queen’s Bench Division (Administrative Court)
Keith J
8 June 2007
Where a coroner has failed to leave to the jury a verdict of unlawful killing following the death of the deceased while being restrained by police officers, European authority on the standard of proof requires the authorities to provide a satisfactory and convincing explanation for the use of force as an evidential burden. Once an explanation for the use of force has been given that is capable of being regarded by the jury as satisfactory and convincing, the jury has to be satisfied to the criminal standard that the circumstances in which the force was used means that the deceased was unlawfully killed.
Stephen Simblet (instructed by Christian Khan) for the claimant.
John Beggs (instructed by Shoosmiths) for the Chief Constable of Northamptonshire Police, the interested party.
The deceased had a history of drug overdoses and self-harm. He died shortly after being detained by a number of police officers. During the detention he was taken to the ground and handcuffed without warning. One officer took hold of his left arm; another pushed the back of the deceased’s legs with his right knee, causing the deceased to topple over backwards. He was then pinned down on the floor and another police officer managed to remove a razor which the deceased was holding. Shortly afterwards he collapsed. He was taken to hospital, but was pronounced dead shortly after his arrival there. An inquest was held into his death. The coroner decided not to leave to the jury the possibility that the deceased had been unlawfully killed as one of the verdicts which the jury could return.
The only verdicts she left to the jury’s consideration were accidental death and an open verdict. The jury returned the former. The claimant, who was the deceased’s sister, applied for judicial review of the decision not to leave unlawful killing as a possible verdict for the jury’s consideration. She contended, inter alia, that the standard of proof required at an inquest before a verdict of unlawful killing could be reached was proof to a lesser standard than beyond reasonable doubt, having regard to Strasbourg jurisprudence.
KEITH J:
It was well established that the standard of proof required at an inquest before a verdict of unlawful killing could be reached was proof to the criminal standard, that was, proof beyond reasonable doubt: R v West London Coroner, ex parte Gray and others [1988] QB 467, [1987] 2 All ER 129. In that case, Lord Justice Watkins noted that a “stringent test” had been applied in the past to proof of suicide, and he equated that stringent test with proof beyond reasonable doubt.
The claimant argued that the standard of proof required at an inquest before a verdict of unlawful killing could be reached is proof to a lesser standard. He had not argued that before the coroner. Indeed, he had expressly conceded at the inquest that the standard of proof was proof to the criminal standard. The basis on which it was argued at the instant hearing that a lesser standard of proof might be appropriate was that the standard of proof of unlawful killing needed to be revisited when the inquest was intended to be the mechanism by which the obligation under Art 2 of the European Convention on Human Rights (the Convention) was to be discharged. That was said to follow from what the European Court of Justice said in Jordan v UK (2003) 37 EHRR 2 at [103]:
“In the light of the importance of the protection afforded by Art 2, the court must subject deprivations of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as for example in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries and death which occur. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation.”
Accordingly, there was said to be a tension between requiring a verdict of unlawful killing to be proved to the criminal standard, and the requirement of the Convention that it was for “the authorities to provide a satisfactory and convincing explanation” for the use of force in the circumstances.
His Lordship could see the force of the argument, but he could not go along with it. He referred to Collins J in R (Anderson) v HM Coroner for Inner North Greater London [2004] Inquest LR 155 at [21], who said that:
“… a finding of unlawful killing will almost inevitably be regarded as a condemnation of the actions of one or a number of easily identifiable persons. It is presented in the media and regarded generally as a positive finding that that person or those persons between them have been guilty of a criminal offence, in this case, manslaughter. It is for this reason that the law requires that a verdict of unlawful killing be proved to the criminal standard …”
The way of giving effect to what was said in Jordan was by treating the requirement to provide a satisfactory and convincing explanation for the use of force as an evidential burden. Once an explanation for the use of force had been given, which was capable of being regarded by the jury as satisfactory and convincing, the jury had to be satisfied to the criminal standard that the circumstances in which the force was used meant that the deceased had been unlawfully killed.
His Lordship turned to the facts and held that there was evidence on which the jury, properly directed, could have concluded that the degree of force used to restrain the deceased had caused his death. It followed that the coroner erred in law in failing to leave the jury with the possibility of returning a verdict of unlawful killing on the basis of “unlawful act” manslaughter. A fresh inquest would therefore be ordered.
