O'Connor, R (on the application of) v Visser [2009] EWHC 854 (Admin)

[2009] EWHC 854 (Admin)Case No CO/4686/2008
IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 07/05/2009
Before
PRESIDENT OF THE QUEEN'S BENCH DIVISIONTHE HONOURABLE MRS JUSTICE DOBBS
Between
THE QUEEN on the application ofClaimantCHRISTINE O’CONNORClaimantHM CORONER FOR DISTRICT OF AVONDefendantNATASHA VISSERIntervener
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7404 1424Official Shorthand Writers to the Court)
James Badenoch QC and Matthew Barnes (instructed by Withy King, Solicitors) for ClaimantHugh Mercer QC (instructed by Bristol City Council, Solicitors) for DefendantMr Gareth Patterson and Victoria Ailes (instructed by Lovells, Solicitors)- for Intervener)Hearing Hearing date: 1 April 2009
JudgmentSir Anthony May, President of the Queen’s Bench Division:
[1]This is the judgment of the court.

Introduction

[2]Liam Hogan, aged 6, died in tragic circumstances in the late evening of 15th August 2006. He was on holiday in Ierapetra in Crete with his mother, Natasha Visser, his father, John Hogan, and his younger sister, Mia, then aged 2. The family was staying at the Hotel Petra Mare in a fourth floor room. The room had a balcony. The parents’ marriage was in difficulties and one of the purposes of the holiday was to try to resolve doubts about it. On 15th August 2006, there was an argument as a result of which John Hogan made attempts to end the holiday early believing that there would be a separation on their return. At about 10.15p.m., Natasha Visser was in the hotel room repacking suitcases, when John Hogan came into the room. There was a further argument which ended, from Natasha Visser’s perspective, in silence and an empty room. John Hogan had gone with the two children to the balcony, onto which he lifted them and pushed them off. He then threw himself from the balcony. They all fell 50 feet or so to the ground. Mia and John Hogan survived. Liam died from his injuries.[3]John Hogan was tried in Greece for manslaughter. He was acquitted on the evidence of one or more psychiatrists who gave evidence as to his mental state at the time of the killing. The Greek court held that “the objective existence of the crime[s] of manslaughter due to intent … has been proven”. But, relying on the evidence of a psychiatrist, Professor Ioannis Nestoros, and other evidence, the court held that feelings generated by the prospect of his wife and children moving away activated a psychosis constituting temporary schizophrenia, and created intense feeling of rejection and inadequacy so that his mental functions were disturbed. He was temporarily flooded with suicidal thoughts and “was totally deprived of the ability to realise the wrongdoing of his actions”. He was declared to be innocent. We are told that nevertheless he remains detained in a Greek psychiatric institution.[4]On 22nd August 2006 and by adjournment on 26th March 2008, H.M. Coroner for the District of Avon held an inquest without a jury into Liam Hogan’s death. The coroner delivered a reasoned verdict on 27th March 2008 concluding that Liam Hogan had been unlawfully killed. This claim for judicial review, brought by Christine O’Connor as legal representative of John Hogan, Liam Hogan’s elderly grandfather, invites the court to quash the verdict of unlawful killing on the main ground that it was reached by reasoning which was wrong in law, and that it could not rationally have been arrived at on the evidence. Mr James Badenoch QC, for the claimant, asks the court to substitute a narrative verdict descriptive of the circumstances in which Liam Hogan died. The defendant coroner, represented by Mr Hugh Mercer QC, seeks to assist the court; does not in substance seek to uphold the verdict, acknowledging the error of law; but suggests that a different narrative verdict may be appropriate. Natasha Visser, who now lives in Australia with Mia and who intervenes, invites the court to remit the matter to the coroner for further consideration. Mr Gareth Patterson, on her behalf, submits that section 31(5A) of the Supreme Court Act 1981, as substituted with effect from 6th April 2008 by section 141 of the Tribunals Courts and Enforcement Act 2007, precludes this court from substituting its own decision, because there would not be “only one decision which [the coroner] could have reached” without the error of law. There may be a practical complication, if this court remits the matter, because we are told, without being given details, that the Coroner for Avon is currently under suspension from his office. It was suggested by Mr Mercer at the hearing that the acting coroner might nevertheless ask the suspended coroner to continue this particular inquest as a deputy coroner. We should be surprised if that were appropriate, and Mr Mercer has confirmed since the hearing that the acting coroner has made it clear that the coroner would not be able to complete this inquest if the matter is remitted and he remains under suspension.

The law

[5]The relevant law is largely, with one point of exception, uncontentious. But certain matters need to be briefly stated.[6]A coroner’s inquisition has, by section 11(5)(b) of the Coroner’s Act 1988, to set out, so far as such particulars have been proved, how, when and where the deceased came by his death. By section 11(6), where a person came by his death by murder, manslaughter or infanticide, the purpose of the inquest is not to include the finding of any person guilty of the murder, manslaughter or infanticide. A coroner’s inquisition shall in no case charge a person with any of those offences. The historical antecedents of this section include that, before 1977, a coroner’s inquisition finding homicide operated as an indictment of the person so charged, who would be committed upon the inquisition for trial in the criminal courts. This power was abolished by section 56(1) of the Criminal Law Act 1977 on the recommendation of a committee chaired by Mr Norman Brodrick QC which reported in 1971 (Cmnd 4810). A conclusion of unlawful killing then introduced was not intended to indicate even a prima facia case of criminal liability. It was “to enable the judgment - neutral fact of how the deceased came by his death to be recorded … it was hoped to turn the verdict into a purely factual record.” – see Jervis on Coroners 12th edition paragraph 13-31. Thus rule 42 of the Coroners’ Rules 1984 provides that no verdict is to be framed in such a way as to appear to determine any question of criminal or civil liability on the part of a named person.[7]As Mr Mercer pointed out to us, if Liam Hogan had died in this jurisdiction, his inquest would have been adjourned under section 16(1) of the 1988 Act pending criminal proceedings, if such had taken place. Following criminal proceedings, the finding of an adjourned inquest as to the cause of death must not be inconsistent with the outcome of the criminal proceedings (section 16(7)). These provisions do not apply to criminal proceedings outside this jurisdiction. It is accepted – with some theoretical misgivings perhaps on the part of Mr Mercer - that the coroner was not bound by the outcome of the Greek criminal proceedings and that an English inquest has to proceed in accordance with English law. The coroner’s verdict of unlawful killing did not technically offend section 16(7) of the 1988 Act. We are told that the Crown Prosecution Service has decided not to prosecute Mr Hogan in this jurisdiction.[8]As paragraph 13-32 of Jervis explains, before 1977 a coroner’s inquisition finding of murder or manslaughter operated to charge the person concerned, but not to convict them. After 1977, the verdict was designed to be factual rather than judgmental, but it is difficult to state that a person has been the victim of unlawful killing without first being satisfied that a crime amounting to unlawful killing has been committed. On the uncontentious facts of the present case, if Liam Hogan was killed unlawfully, it would be difficult, other than in a purely formal sense, to comply with rule 42 by suppressing the necessary corollary that it was John Hogan who unlawfully killed him. As Sir Thomas Bingham MR said in R v North Humberside Coroner ex parte Jamieson [1995] QB 1 at page 24H, in cases of conflict, the statutory duty to ascertain how the deceased came by his death must prevail over the prohibition in rule 42. But the scope for conflict may be small. Plainly the coroner may explore facts bearing on criminal and civil liabilities. But the verdict may not appear to determine any question of criminal liability on the part of a named person. There can be no objection to a verdict which incorporates a brief neutral factual statement, but such verdict must be factual expressing no judgment or opinions.[9]Although there is surprisingly little direct authority on the point, a coroner’s verdict of unlawful killing necessarily predicates a finding equivalent to that required for a conviction of at least manslaughter in a criminal trial. Authorities, including R v West London Coroner ex parte Gray [1988] 1 QB 467, establish that an inquest’s conclusion of unlawful killing cannot be reached unless the coroner or jury are so satisfied to the criminal standard of proof. As Watkins LJ said in Gray at page 477G, it was unthinkable that a coroner’s jury should find the commission, although not identifying the offender, of a criminal offence, without being satisfied beyond reasonable doubt. The practical guidance given in Gray by Watkins LJ was approved as correct in the judgment of Woolf LJ in the Court of Appeal in R v Wolverhampton Coroner ex parte McCurbin [1990] 1 WLR 719 at 727H-728B. This is all uncontentious in the present case, but from it, as will appear, derives in part the single point of disagreement as to the law in the present case.[10]Murder requires an intent to kill or cause really serious bodily harm. Murder may be reduced to manslaughter by virtue of provocation or diminished responsibility, but the necessary intent remains. There may also be involuntary manslaughter, if the accused intentionally did an act which was unlawful and dangerous and that act inadvertently caused death – see R v Larkin (1942) Cr. App. R. 18 referred to by Lord Salmon in DPP v Newbury [1977] AC 500 at 507A. The test whether the act was dangerous is objective, but there must be a guilty mind to the extent that the accused intended to commit the unlawful act. As Lord Salmon said at page 509B with reference to Reg. v Lamb [1967] 2 QB 981, in manslaughter as in every crime except those of absolute liability, there must always be a guilty mind. As it was put in Lamb at 988C, manslaughter could not in that case be established except by proving that element of intent without which there could be no assault. It is not necessary for present purposes to consider gross negligence manslaughter where different considerations apply.

The coroner’s decision

[11]In the present case, the coroner, in his reasoned ruling, referred to Mr Hogan’s acquittal in the Greek court as being based on the evidence of two psychiatrists whose written opinions were read in evidence at the inquest. Their findings, said the coroner, had given rise to a good defence to murder or manslaughter on the basis of insanity. It was submitted on behalf of Mr Hogan, with reference to section 16 of the 1988 Act, that a verdict of unlawful killing could not be considered on the basis of the Greek finding. The coroner rejected this submission, holding that section 16 did not apply to proceedings outside this jurisdiction, nor when the evidence was substantially different.[12]The coroner referred to important differences between a coroner’s inquest and a criminal trial and to the restriction placed by rules on the wording of a coroner’s verdict. He then directed himself with reference to Newburyas to the legal ingredients of unlawful killing in a passage which, taken alone, was broadly correct. However, his reasoning then went astray. He said that the inquisitorial system did not require “… consideration of the actor’s mental state but to record the facts as seen by the witnesses and adduced by the evidence as a whole”. The facts were abundantly clear in that the children were seen to be pushed off the balcony “objectively an unlawful act. … the mere act committed was in itself unlawful on the basis of common sense as death resulted. In my judgment, an intention or lack of intention, whether the actor was capable of understanding his acts is irrelevant for the purposes of my verdict.” He accordingly recorded a verdict of unlawful killing.[13]It is agreed that, notwithstanding the earlier and largely correct reference to Newbury, the coroner’s reasoning then proceeded on a material misdirection of law in that(a) the test for unlawful killing is not exclusively objective, it being necessary to find at least the mental element necessary for an assault; and(b) the “defence” of insanity was not irrelevant for the purposes of the coroner’s verdict. If Mr Hogan was legally insane when he pushed Liam from the balcony, he would not have been guilty of murder by reason of insanity in an English criminal court, and a coroner’s conclusion of unlawful killing would have been no more available than if the pushing had been an accident.[14]In our judgment, since the coroner’s reasoning was wrong in this respect and to this extent, his verdict cannot stand and must be quashed. We say this without overlooking Mr Mercer’s reference to the judgment of Woolf LJ in McCurbin at 730 to the effect that the judicial review test is not simply whether there has been an error of law, but also whether the error has or may have resulted in a wrong verdict being entered. As will appear, we are not able to say that proper legal reasoning necessarily would have resulted in the same verdict.

Relief – the main issue

[15]Most of what we have said so far in this judgment is uncontentious between the parties. The one point of real contention concerns the relief which the court should give upon the quashing of the coroner’s conclusion of unlawful killing. Here we are constrained by the recently substituted section 31(5) and (5A) of the Supreme Court Act 1981, by which, if this court quashes a decision on an application for judicial review on the ground that there has been an error of law, the court may remit the matter to the court which made the decision with a direction to reconsider the matter and reach a decision in accordance with this court’s findings; or we may substitute our decision for the decision in question. But we may only do the second of these if, without the error of law, there would only have been one decision which the court could have reached. These substituted provisions took effect on 6th April 2008, after the coroner’s decision in this case. But there are no transitional provisions, and it was not suggested to us that the substituted provisions did not apply to these judicial review proceedings. There was in any event general agreement that broadly equivalent considerations applied before 6th April 2008. The main question, therefore, for our determination in these proceedings is whether, without the error of law, there would be only one conclusion which the coroner could have reached.

Submissions

[16]Mr Badenoch submits that there is indeed only one conclusion which the coroner could have reached, that is a suitably worded narrative verdict. An open verdict, he says, is not available because the facts of Liam’s death are sufficiently known. We agree that it is not. Mr Badenoch then submits that this court can and should decide that a verdict of unlawful killing was not properly available to the coroner on the evidence before him. Mr Badenoch was constrained – rightly we think – to confine this submission to the evidence so far before the coroner. This was because introducing additional evidence would require this court to evaluate the effect of evidence which the coroner did not have in the light of evidence before the coroner which this court has not heard, much of which is not available to this court even in written or transcribed form. We mention below some additional material which is tendered to this court. It includes a translated version of the proceedings before the Greek criminal court which the coroner did not have.[17]The submission that the verdict of unlawful killing is not properly available on the evidence which was before the coroner rests on the proposition that John Hogan was, or may have been, temporarily insane at the moment he pushed Liam from the balcony. Insanity would be a defence in an English court to a charge of murder and would therefore in the normal course of events preclude a verdict of unlawful killing at an inquest. If, therefore, John Hogan was not insane when he pushed Liam from the balcony, a conclusion of unlawful killing follows and would be the correct conclusion for the coroner to reach in this inquest.

Insanity – standard of proof

[18]The classic formulation of the test for insanity in a criminal trial comes from the judges’ answers to the second and third questions posed to the House of Lords in M’Naghten’scase (1843) 10 Cl. & Fin. 200 at 210, whose provenance is shortly described by Lord Diplock in R v Sullivan [1984] 1 AC 156 at 170C-H. The answer begins with the words “The jurors ought to be told in all cases that every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction.” This implies, and the law is, that the burden of establishing insanity in a criminal trial is on the defence on the balance of probabilities – see for example Sullivan at page 171A.[19]A coroner’s inquest is not, however, a criminal trial. As Lord Lane CJ, giving the judgment of the court in R v South London Coroner ex parte Thompson (1982) 126 S.J.625, said:
“Once again it should not be forgotten that an inquest is a fact-finding exercise and not a method of apportioning guilt. The procedure and rules of evidence which are suitable for one are unsuitable for the other. In an inquest it should never be forgotten that there are no parties, there is no indictment, there is no prosecution, there is no defence, there is no trial, simply an attempt to establish facts. It is an inquisitorial process, a process of investigation quite unlike a criminal trial where the prosecutor accuses and the accused defends, the judge holding the balance or the ring, whichever metaphor one chooses to use.”
This passage was cited by Sir Thomas Bingham MR in Jamieson at page 17F, after which he added that Lord Lane went on to say that the function of an inquest is to seek out and record as many of the facts concerning the death as the public interest requires. Sir Thomas Bingham MR himself said, as one of his general conclusions in Jamieson at page 24C, that the prohibition in rule 42 on a coroner’s inquest determining or appearing to determine any question of criminal or civil liability is fortified by considerations of fairness. Our law affords a defendant accused of crime certain safeguards rightly regarded as essential to the fairness of the proceedings. Among these are a clear statement in writing of the alleged wrongdoing, a right to call any relevant and admissible evidence, and a right to address factual submissions to the tribunal of fact. These rights are not granted, and the last is expressly denied by the rules, to a party whose conduct may be impugned by evidence given at an inquest.[20]How then should a coroner direct a jury as to the standard of proof in a case such as the present where, insanity apart, a verdict of unlawful killing is obviously correct on the facts? The answer to that question will determine the answer to the equivalent question for the coroner himself, if there is no jury. Are the jury to be directed that, if the evidence would otherwise surely establish unlawful killing, that verdict is not available if the evidence shows on the balance of probabilities that at the time of the killing the perpetrator was legally insane? Or are they to be directed, where insanity is properly raised on the evidence, that insanity must be disproved and the other ingredients of unlawful killing proved, both to the criminal standard, before the jury could consider a verdict of unlawful killing? Mr Patterson’s submission promotes the first of these: Mr Badenoch’s the second.[21]Mr Patterson’s submission is that the standard of proof should be analogous with that in a criminal trial. He would no doubt say, as did the judges in M’Naghten’s case, that every man is presumed sane and to possess a sufficient degree of reason to be responsible for his crimes until the contrary is proved. The presumption should apply at an inquest as in a criminal trial. If insanity is not established by the evidence on the balance of probabilities, a verdict of unlawful killing is requisite if the other ingredients are surely established.[22]Mr Badenoch’s submission is that a standard of proof predicates a party upon whom the burden of proof to that standard rests. In an inquest, there are no parties, indictments, prosecution, defence or trial; simply an inquisitorial attempt to establish facts. There are none of the safeguards of a criminal process to which Sir Thomas Bingham MR referred in Jamieson. It would be unfair in these circumstances if a person were to face the stigma of a verdict of unlawful killing – for such in some circumstances it would be, notwithstanding rule 42 – if temporary insanity is not established on the balance of probabilities, when that person or those representing him do not have proper formal entitlement to set about establishing his insanity to that standard. The submission is that the coroner should direct the jury that they must be sure, not only of the ingredients of unlawful killing, but also that the person was not legally insane at the time of the killing. They must in short be sure that unlawful killing is proved in every material respect, including that element of disproof.[23]We have not found this an easy question. The difficulty exemplifies two ways in which the law is or may be regarded by some as unsatisfactory. First, the problem arises from the necessary attributes of a coroner’s verdict of unlawful killing, which can conflict with the intention after 1977 that an inquisition should find facts, not attribute blame. Second, there is academic opinion to the effect that the burden of disproving insanity, when it is properly raised in a criminal trial, should be on the prosecution to the criminal standard, just as the prosecution have to disprove to the criminal standard accident or self defence – see for example Smith and Hogan; Criminal Law 12th Edition 2008 at page 288, paragraph 11.2.2.3.[24]There is, moreover, a theoretical possibility, if Mr Badenoch’s submission is correct, of apparent inconsistency of verdicts in a criminal trial and a subsequent inquest. A criminal trial could result in a verdict of murder, if the defendant failed to prove that he was legally insane on the balance of probabilities. But a subsequent inquest on the same evidence might not surely conclude that the erstwhile defendant was not insane, so that an otherwise expected coroner’s verdict of unlawful killing would not be technically available.[25]A narrative inquisition in these circumstances might not be technically inconsistent with the conviction for murder – it would simply, we suppose, describe the facts without coming to any firm conclusion about mens rea. But public perception would regard the contrast between the two verdicts as strange, if the public went as far as to think about it. Informed lawyers would perhaps see it as an odd, but largely academic, anomaly. Given that the criminal law places the burden of proving insanity on the balance of probabilities on the defendant, we suppose that a conviction for murder will, in almost every case, be the end of the public’s interest in the case, and stigma will attach to the defendant by virtue of that verdict, whatever the outcome of a subsequent inquest. In short, we acknowledge the theoretical possibility of apparent inconsistency. We take it into account, but do not consider that it weighs heavily in the scales of a difficult decision.[26]We are, however, persuaded that Mr Badenoch’s submission is to be regarded as correct. The procedure at an inquest does not accord a would be defendant the safeguards that he would have in a criminal trial. There is no defendant and therefore no one upon whom the relevant burden of proof might lie. It is not fair that a person should risk the stigma of a finding of unlawful killing – even if the verdict technically conceals identity – without those safeguards and without the right to have deployed on his behalf the case that he was legally insane when he perpetrated the otherwise unlawful act. Crucially, we consider that the relevant direction which the coroner would have to give to a jury would be contorted and unsatisfactory. In a criminal trial, the heart of the direction is that it is for the defendant to prove insanity on the evidence taken as a whole, not beyond reasonable doubt, but upon the balance of probabilities. At an inquest, the coroner would have to direct the jury along the lines that it is for them to decide whether they are sure that the killing was unlawful, except that the killing would not be unlawful if they concluded on the balance of probabilities on the evidence which the coroner had decided to adduce or had admitted that the person who perpetrated the killing was legally insane. If this formulation is somewhat contrived to make a point, the concept of applying a hybrid standard of proof, derived from a structure where a burden is on the defendant, to circumstances where there is no defendant is not satisfactory. The differences between a coroner’s inquest and a criminal trial necessitate a different standard of proof.[27]Submitting - successfully as we hold - that insanity, properly raised, has to be disproved to the criminal standard to sustain a verdict of unlawful killing, Mr Badenoch then says that a verdict of unlawful killing was not properly available in this inquest. There was only properly available a suitably worded narrative verdict which this court should substitute without remitting the case. If the written reports of the two Greek psychiatrists did not perhaps positively establish that John Hogan was legally insane in English law when he pushed Liam from the balcony, no rational coroner properly directing himself could have been satisfied beyond reasonable doubt that he was not then insane.

The psychiatric evidence

[28]Professor Ioannis Nestoros is described as John Hogan’s treating psychiatrist. His report, dated 3rd December 2006, gives a fairly brief account of John Hogan’s admission to Korydallos Prison Psychiatric Hospital suffering from major depression with psychotic symptoms and suicidal tendencies. He recounts a history of two brothers who committed suicide. He gives a short account of the argument with his wife which led to Liam’s death. He reports that:
“He was in a state of psychosis, because whilst being transported by ambulance he had both auditory and visual hallucinations.”
There is an account of his prescribed drugs and of an attempted suicide on 1st September 2006. After other observations, Professor Nestoros concluded:
“In conclusion, according to the psychiatric evidence, we judge that on the night of the fatal event the prisoner was under a psychotic condition and he was not in a position of control. He did not realise his actions or the unfair nature of his actions for which he is being accused. He is devastated by the death of his son Liam for whom a long time after his admission at the Psychiatric Clinic for Prisoners [he] was denying what had happened but also saying that he wanted to die so that he could meet him again.”
We observe, first, that the short account of the events which resulted in John Hogan pushing Liam from the balcony appears to derive wholly or mainly from John Hogan himself; and second, that the opinion, although speaking of psychosis and a psychotic condition, does not in terms address the M’Naghten test for insanity.[29]Dr Markos Skondras is a forensic psychiatrist, who wrote an expert opinion for the Greek proceedings. His report, dated 5th July 2007, records in terms that background information and information regarding the crime committed were taken from the accused. A section of the report records at some length verbatim extracts from what John Hogan himself had said. There is no other source of this information. Dr Skondras’ reasoning, discussion and conclusion includes that John Hogan suffers from a depressive disorder and a deep feeling of melancholy. There is an extended description of emotional stress and instability. Dr Skondras describes the argument with John Hogan’s wife and his inability to recall what followed. He then expresses this opinion:
“Thus, it seems, that during the disputed period when Mr Hogan feels that he can’t change the intention and the feelings of his wife, he fantasizes about a new abandonment and himself alone in the future, the situation which is difficult for him to handle maturely at that moment. The prospect of this new abandonment and loneliness, in a way that he experiences it, overwhelms him with feelings of panic, weakness and destruction. These emotions in his particular character create an emotional strain and an intense need for him to unload them, which does not permit him to function in accordance with his understanding for the laws of fairness and morality, and in this state he commits the crime with which he is being charged.”
The report ends by saying that John Hogan requires psychiatric and psychological monitoring. As with Professor Nestoros, the opinion does not in terms address the M’Naghten test for insanity. Neither report clearly goes to establish insanity. Perhaps that of Professor Nestoros comes closer to it than that of Dr Skondras. Conversely, on these reports alone, no coroner properly directing himself could be sure that John Hogan was not legally insane when he pushed Liam from the balcony. This court cannot therefore conclude that the coroner’s verdict of unlawful killing should not be quashed, notwithstanding the coroner’s error of law. We are satisfied that the reports properly raise the issue of insanity.[30]We note that the claimant has obtained what are said to be better translations of the two psychiatrists’ reports. There is also now available a transcript in English of the Minutes and Judgment of the Greek criminal court proceedings obtained by the defendants. We have not considered this material in detail, because it was not before the coroner when he made his decision; because this court’s function is to review judicially the coroner’s decision, not to make an independent evaluation as if at first instance; and because we do not have any record of the other evidence which the coroner heard and considered.

More than one possible decision?

[31]Mr Patterson accepts, we think, that this court cannot positively decide that insanity is surely disproved. But he submits that this must be regarded as a possible outcome, if the matter is remitted to the coroner for reconsideration. The heart of the submission is as follows. The coroner did not properly consider the necessary subjective mental element of unlawful killing, nor did he address the question of insanity. It is not therefore to be supposed that he has gathered or considered all the appropriate evidence which would bear on a decision about insanity. Even on the evidence which he did have, the psychiatrists’ reports did not stand alone. The psychiatric evidence as it stands does not in terms address the M’Naghten test. That evidence is open to question because the psychiatrists’ only source of facts at the time of the killing, including John Hogan’s mental state at that time, came from John Hogan himself. Mr Badenoch accepted that the psychiatrists’ opinions would have been theoretically open to question in cross-examination in English proceedings with reference to facts which they had not been told about John Hogan’s apparent state and behaviour at the time. Mr Patterson correctly submits that it is open to a coroner, as it is to a jury properly directed, to reject expert opinion if the evidence taken as a whole properly persuades them to do so. He points to a number of facts of which the psychiatrists were not aware or upon which they may have been given mistaken information. He suggests, for instance, that they may not have been aware that John Hogan pushed his children from the balcony, but rather understood that he had jumped while holding them. Mr Patterson points, in paragraph 6.6 of his skeleton submission, to details of evidence available to the coroner at least in statement form which was capable of bearing on John Hogan’s mental state at the time, some of it suggesting clarity of thought. There is also, for instance, a passage in the record of the Greek criminal proceedings of evidence from the hotel receptionist about John Hogan asking her to arrange air tickets for an early return for the family to England. The receptionist described him as calm and very polite. This was shortly before the fatal incident. Mr Patterson then has detailed submissions in paragraph 6.7 of the skeleton assessing the extent to which the psychiatrists’ reports may or may not support a case of insanity in English law. The submissions are predicated on a burden and standard of proof which we have rejected. Their conclusion is that it cannot be said that there is no possibility of the coroner, properly directing himself and considering all relevant evidence, reaching a conclusion of unlawful killing.[32]We accept these submissions, duly modifying them to accord with our decision as to the standard of proof for insanity at a coroner’s inquest. We reject Mr Badenoch’s submissions to the contrary. In short, this court is concerned to review the lawfulness and propriety of the coroner’s decision, not to substitute our own evaluative decision on potentially incomplete evidence, and when the coroner himself made no such evaluation. The evidence which was before him is not before us in the form in which it was given, and it is not evidence which we have heard. Having due regard to the outcome of the Greek criminal proceedings, we consider that the psychiatrists’ reports raise an issue of insanity, but do not preclude its sure rejection upon a proper evaluation of all appropriate evidence. We are unable to say therefore that there is only one decision which, without the error of law, the coroner could have come to, so that section 31(5A) of the 1981 Act does not permit us to substitute our own decision. We shall accordingly remit the matter for further consideration.[33]It is not, therefore, necessary or appropriate for us to consider rival versions of a possible narrative verdict, nor to determine whether it would have been necessary to remit the matter, if the only question was the appropriate formulation of a narrative.