McLeish, R (on the application of) v HM Coroner for the Northern District of Greater London [2010] EWHC 3624 (Admin)

Case No CO/4224/2009[2010] EWHC 3624 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 17 November 2010
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE CALVERT SMITH
Between
THE QUEEN ON THE APPLICATION OF MCLEISHClaimantv
Between
HER MAJESTY'S CORONER FOR THE NORTHERN DISTRICT OF GREATER LONDONDefendant
Computer‑Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
MR A STRAW appeared for ClaimantMR J BEER appeared for Defendant
J U D G M E N T
[1]MR JUSTICE CALVERT SMITH: This is a claim for judicial review against Her Majesty's Coroner for the Northern District of Greater London. Permission was granted by Cranston J on 20 March 2010 following an oral hearing on 30th October 2009.[2]To understand the decision, or lack of decision, challenged and the remedy sought it is necessary to summarise the relevant facts. On 26 January 2008 the claimant's son, Desmond, then aged 31, was found dead in Tottenham Marshes. Desmond Allen was a well educated young man who, after obtaining a Bachelor of Science Degree, was hoping to become a science teacher. However, in October of 2007 the landlady of his flat in Tottenham reported that he had left the flat. In due course he was reported missing and, after October, his family had heard nothing of him until the discovery of his body in January 2008.[3]The claimant is his mother. The following day, 27 January, the police attended the claimant's home in Putney to inform her of her son's death. She went to the Hornsey mortuary to identify the body of her son. There, she met the Coroner's Officer, Mr Hardie. According to her statement, she made it clear that she wanted to know how Desmond had died and that Mr Hardie told her that the blood tests would give her the answers. Mr Hardie, for his part, claims in his statement for these proceedings that although he would have referred to the possibility of toxicology and histology reports, he would not have been so positive about the likelihood that blood tests would provide the answers.[4]I accept that the claimant made it plain that she wanted to know how her son died. Any mother would. I also accept that, whatever the exact words that were used, she was given the impression that the blood tests would most likely provide the answer to the cause of her son's death, and that it would have been clear to Mr Hardie that she would want to know as soon as possible what those results were.[5]On 28 January 2008, Professor Risdon, an experienced and distinguished pathologist, carried out an autopsy. A decision must have been taken to hold an inquest around that time, because the following day, 29 January 2008, the inquest was indeed opened and adjourned. The same day Mr Hardie, the Coroner's Officer, sent out the Interim Fact of Death certificate. That records that the precise medical cause of death has not yet been ascertained.[6]That was followed, on 30 January, by a letter from Mr Hardie to the claimant. The relevant parts of it read:
"As promised, I am writing to inform you of what action now follows from the involvement of Her Majesty's Coroner. The Coroner will, on a date to be fixed, hold what is legally termed an inquest into the circumstances surrounding Desmond's death. The inquest was formally opened and adjourned on 29 January 2008 by me on your behalf, which allowed Desmond's body to be released for funeral. As I explained, we now have to wait for various reports and then the Coroner will reach his decision. I will keep you in touch with developments and you have my number in case."
[7]That letter, together with the wording of the fact of death certificate which was sent to her, gave her the impression, as I find, that the process of establishing the cause of death was ongoing and she would, in due course, be told what the answer was.[8]On 8 February 2008, acting on the letter that she had received, the claimant arranged for her son's funeral to take place a week later, on 15 February. She rang the Coroner's Officer and asked if she could really bury her son without the cause of death having been ascertained. She says in her statement that she was told by the Coroner's Officer "let Desmond rest. We have his blood samples, you can bury him." The Coroner's Officer, and one can forgive him for this, because he no doubt fields many telephone calls from many different people, has no clear recollection of this conversation.[9]Once again, this is the first, and, it is to be hoped, the only time, the claimant would suffer a bereavement of this kind, and I find that she has a very clear and accurate memory indeed of what has been said to her at various stages of this process, and accurately remembered them.[10]On 14 February 2008 a report came back from Dr Patterson, the head of the Toxicology Unit at Imperial College London. In summary, it stated: "No drugs detected in general screen of blood and stomach contents. No drugs of abuse detected in urine".[11]Sometime in March the claimant called the Coroner's Office again. She was told that the post mortem report was not yet in, and that the process would be a long one, since there were some 80 inquests to be held before her son's inquest could be reached, and that the Coroner's Officer would write to her. This call must have been, although there is though no clear date given to it, before 25 March 2008 when, according to the computer at the Hornsey mortuary at least, the post mortem report from Professor Risdon was received. This recorded that there were no signs on his body of how Desmond Allen had come by his death and that a blood test had detected no drugs of abuse. The cause of death was said to be "unascertained".[12]So far as any enquiries carried out by the Coroner or on his behalf were concerned, that was that. The case then went into the queue of inquests all awaiting disposal. There was, as it is conceded, no communication to the claimant of the fact of the receipt of either report or that, effectively, this was the end of the investigation so far as the Coroner was concerned. I am satisfied that, had the claimant been informed of this as she had been effectively promised, and given to understand that at the moment the results came through telling her, as she had hoped, how her son had died, then she would have been able to then to decide whether, for her part, perhaps to consult a lawyer, as she has done since, and to discuss the pros and cons of an attempt to have her son exhumed for a further post mortem examination; or at the very least to ask for the samples which had been used by the toxicologist to be subjected to a further toxicological examination, in case some such examination might have thrown light on the cause of her son's death. The opportunity for the latter disappeared effectively on 20 June 2008 when, as was clearly set out at the end of the report from Imperial College, which was of course not seen by the claimant, the samples were destroyed.[13]On 5 July, nearly 3 months after her last conversation with Mr Hardie and 5 months after the funeral, the claimant wrote to him. The relevant parts of her letter for these purposes are:
"Dear Mr Hardie, it is about 3 months now since I last phoned you. I am anxious to know the situation/results regarding Desmond"
. She concludes by saying: 14. "Hope to hear from you soon, thank you".

She concludes by saying:

[14]Apart from its restrained and reasonable tone, it is, in my judgment, clearly a request for information. It is not, for instance, simply a request to know the date of the inquest. The claimant received no reply to that letter.[15]Three months more went by and the claimant then telephoned again on 14 October. She was told by the Coroner's Officer that there was nothing revealed by what was, by then, the 8 month old toxicology report. Mr Hardie asked her if she wanted the reports, both post mortem and toxicology, and she said that she did. He sent them at once. They were received by her on 16 October.[16]On 20 October she wrote another letter to the Coroner's Office, and also wrote to Imperial College asking for the samples that they had used. Imperial College replied almost at once and explained, as I have already said, that according to their procedures the samples that may have been remaining after the analysis were destroyed on 20 June. Once again, however, there was no reply from the Coroner's Office.[17]On 13 November the claimant wrote again. This time her letter was a complaint in which she set out much of the chronology that I have just gone through, and concludes her letter with the words "PS I am not happy with 'unascertained'". Something that she had been consistently saying ever since she received the Interim Certificate.[18]In January 2009 her statement records that she was contacted by a person from the Coroner's Office who apologized for the failures to reply to her letters.[19]The inquest took place on 4 February 2009 and the claimant attended and took part in it. She was allowed to, and did, ask a number of questions about the circumstances in which her son's body had been found and whether there was any evidence as to where he had been living in the days before his death. She indicated during the course of the hearing that there were a number of things she wanted to say. The Coroner said that of course she could say them in due course, once the evidence had been given by the relevant witnesses. She was given that opportunity by the Coroner and gave the Coroner the history which I have effectively just summarized.[20]At the conclusion of that statement by Mrs McLeish to the Coroner, he said this:
"Yes. Well let me say just this, for an inquest like this to have taken over a year to be heard is frankly disgraceful. For you not to be given appropriate support by the Coroner's Officer is a failing in our Coroner's Service, for which I apologize. I have taken over this jurisdiction on 1 December and introduced measures since that time to ensure that inquests such as this are heard within 3 months of the death being reported to me. I can only apologize, this should never have happened. You should always have had the cooperation of a Coroner's Officer in helping you through this process and I am very sorry for the distress this has, and still continues, to cause. Mr Hardie is no longer working at this Coroner's Office. I am astonished that Mr Hardie had not brought this to me before for my view. I rely on my Coroner's Officers to have contact with members of the family, and on this occasion it appears that the system has broken down and you have been left in a position where you have been failed by the Coroner's Service, and I can only apologize. In this case there is only one verdict that I can properly record, and that is an open verdict, because I simply do not have any answers as to how it was that Mr Allen came to have died. Pathological examination carried out by Professor Risdon found no cause of death; there was nothing in the toxicological survey that we carried out that could have explained why he had died. We simply do not know. Now, members of the family, in the circumstances we also do not know how long he had been living rough for. We do not even know whether he had been living in the tent. We simply do not know, and it is for those reasons that I am going to leave this verdict open. I take very seriously the failings of this court and I will ensure that the matter is looked into and this situation does not happen again. As I say, I am very very sad to hear how you have suffered through this, but it is frankly, as I said, unacceptable."
[21]The history that I have just recited explains why the Coroner was moved to express himself as he did, and the claimant's reaction explains why she ultimately decided to take the matter to solicitors and apply for this judicial review. I should point out that the apology that I have referred to was repeated in substance at the outset of the defendant's skeleton argument prepared for the purposes of these proceedings.[22]The claimant now seeks a declaration that the defendant acted in breach of the common law and in breach of Rule 57 of the Coroners Rules 1984, and a declaration also that the defendant violated the claimant's rights under Article 8 of the European Convention on Human Rights. In the event that the latter declaration is granted, she seeks damages by way of just satisfaction for that violation.[23]The legal background to the claim can be shortly set out. Section 8(1) of the Coroners Act 1988, where relevant, reads:
"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 the deceased ... (b) has died a sudden death of which the cause is unknown, then, whether the cause of death arose within his district or not, the Coroner shall, as soon as practical, hold an inquest into the death of the deceased, either with or, subject to subsection 3 below, without a jury"
. Section 19 of the Act reads: "(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 of a sudden death of which the cause is unknown, the Coroner may (a) if he is of the opinion that a post mortem examination may prove an inquest to be unnecessary, direct any legally qualified medical practitioner whom, if an inquest were held, he would be entitled to summons as a medical witness, or (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. 26. ... (3). Where a post mortem examination is made under this section, and the Coroner is satisfied as a result of it that an inquest is unnecessary, he shall send a register of death certificate under his hand, stating the case of death as disclosed by the report of the person making the examination".[24]The Coroners Rules 1984, as amended since, contain a number of relevant rules:
"7. (1) Where a Coroner directs or requests a legally qualified medical practitioner to make a post mortem examination, the Coroner shall notify the persons and bodies set out at paragraph (ii) of the date, hour and place at which the examination will be made, unless it is impractical to notify such persons or bodies, or to do so would cause the examination to be unduly delayed. (ii) The persons and the bodies to be notified by the Coroner are as follows: (a) any relative of the deceased who has notified the Coroner of his desire to attend or be represented at the post mortem examination..."
[25]I pause there to note that, of course, the claimant in this case did not notify the Coroner of any desire to attend or be represented at the post mortem examination, but the rule does indicate that, from the earliest stage of the investigation which may culminate in an inquest, the involvement of the persons in the position of this claimant is clearly envisaged. Rule 10: "(i). The person making a post mortem examination shall report to the Coroner in the form set out of in schedule 2, or in a form to the like effect. (ii). Unless authorised by the Coroner, the person making the post mortem examination shall not supply a copy of his report to any person other than the Coroner".[26]So it is clear that the Coroner is the person who decides what should happen to the post mortem report.[27]Moving on to the Rules as they concern the inquest itself, rule 20 of the Rules provides: "1) Without prejudice to any enactment with regard to the examination of witnesses at an inquest, any person who satisfies the Coroner that he is within paragraph 2 shall be entitled to examine any witness at an inquest, either in person or via an authorised person. [There is a proviso which I do not refer to] 2) Each of the following persons shall have the rights confirmed by paragraph 1: (a) a parent and any personal representative of the deceased...".[28]That of course brings the claimant squarely within the provisions of the Rules. By Rule 37 of the Rules: "Interested persons [such as the claimant] shall be entitled to see documentary material that is proposed to be admitted at the inquest, and to object if they wish to the admission of such material".[29]Rule 5 of the Rules states: "Where a Coroner directs or requests that a post mortem examination should be made, it should be made as soon after the death of the deceased as is reasonably practicable".[30]By way of confirmation of the fact it the Coroner who controls disclosure, Mr Beer, who represents the defendant, referred me to section 32 of the Freedom of Information Act 2000. At section 32(1): "Information held by a public authority is exempt information if it is held only by virtue of being contained in (a) any document found with or otherwise placed in the custody of a court for the purposes of procedures in a particular cause or matter. and, by subsection 4(b): “proceedings in a particular cause or matter includes any inquest or post mortem examination".[31]I now turn to the common law challenge. Under the heading "detriment", the claimant alleges that she has suffered a detriment as a result of the delays and failures of which she complains, and submits that those give rise to a right to judicial review. The starting point for her claim is R v Secretary of State for the Environment ex parte Hammersmith and Fulham London Borough Council [1991] 1 AC 521, and in particular a passage from the speech of Lord Bridge (at p598C-F) in that case, which is taken to be of general application: "Before I advert to these complaints individually, I must try to dispel a misapprehension which underlay the arguments addressed to the House on behalf of the appellant authorities on this part of the case. The arguments proceed from the assumption that, as between the Secretary of State and any authority which may be or is the recipient of a notice of designation, the authority, or more accurately the majority party controlling the budgeting process, is in a position of a person whose 'rights' in the broadest sense are liable to be detrimentally affected by any action taken by the Secretary of State under part 7 of the Act. This is the necessary assumption on which to base the argument advanced by the appellant authorities that the court supplement the procedural requirements which the Act itself stipulates by implying additional requirements said to be necessary to ensure that the principles of natural justice are reserved in the procedures both leading to designation and following designation. The decided cases on this subject establish the principle that the courts will readily imply terms, where necessary, to ensure fairness of procedure for the protection of parties who may suffer a detriment in consequence of administrative action. Clearly, this principle applies to decisions whereby citizens may be affected in their person, their property, or their reputation. The principal equally applies to public bodies or public authorities affected by an administrative decision which are based on their having acted, or which necessarily implies they have acted, unlawfully or discreditably".[32]Concentrating therefore on this public authority and these circumstances, namely the procedure leading to the holding of an inquest, the claimant relied on the case of R(Bentley) v HM Coroner for the District of Avon [2002] 166 JP 297. Both sides rely extensively on passages from this judgment.[33]At paragraph 63, Sullivan J, as he then was, giving the judgment of the court, said: "63) The request for advanced disclosure was, on the face of it, a perfectly reasonable one. Certainly, no reason has been advanced by the Coroner as to why it should have been refused. The fact that the rules do not require advanced disclosure is not a sufficient answer, there is an overriding obligation to conduct the inquest in a fair manner. The requirements of natural justice or fairness are not immutable. What was considered a fair procedure 20 years ago may well be regarded as unfair by today's standards. By example, the view that fairness very often requires the giving of reasons for a decision has been steadily gaining ground over recent years. 64) The Coroner had a discretion to permit advanced disclosure of, for example, the post mortem report and the toxicological results. We had to exercise that discretion fairly, with a view to furthering the purpose of the inquest, to ascertain how the deceased came by her death, and bearing in mind the claimant's entitlement to participate in the investigation under Rule 20. It is difficult to see how the claimant could effectively exercise his rights under Rule 20 if he was kept in complete ignorance of the most basic facts until the commencement of the inquest. 65) The proposition that a person will not able to participate in the proceeding in an effective way in the absence of advanced disclosure is increasingly recognised, see for example the changes made by the Civil Procedure Rules in ordinary civil litigation and the provisions of the most recent Town and Country Planning Inquiry Procedure Rules as an example of the way in which disclosure is dealt with in the field of administrative tribunals inquiries, and the provisions for greatly increased disclosure in criminal proceedings. ... 67) Under the Rules, if documentary evidence is proposed to be admitted in an inquest, a person falling into Rule 22 will become entitled to see a copy by virtue of Rule 37(3)(d). Without advanced disclosure they may be placed at a significant disadvantage. In my judgment, the need for advanced disclosure is not answered by the proposition that an inquest is an inquisitorial procedure. As mentioned above, persons falling within Rule 20 have a role to play in the procedure. The requirements of fairness should reflect that role. It may well mean that in some cases there is less need for advanced disclosure, or that advanced disclosure need not be so extensive, but it does not follow that there is no need in the interests of fairness for any advanced disclosure, particularly if the Coroner intends to rely on documentary evidence alone".[34]At paragraph 72, he went on, having dealt with remarks to which I shall return of Widgery LCJ in the Blair Peach case, to say: "In the present case, the claimant's request was supported by reasons which have not been gainsaid by any explanation from the Coroner, whether before, during or after the inquest. In the circumstances, I think it proper to draw the inference that there was no good reason for refusing the claimant's request ... there was unfairness because of the refusal of any advanced disclosure, even of the post mortem report, which meant that the claimant would inevitably be disadvantaged in seeking to participate in the inquest, as he was entitled to do under Rule 20. That unfairness could easily have been rectified if the Coroner had acceded to the perfectly reasonable suggestions of the claimant's solicitors that counsel attend court early to read the documents, and of counsel herself that she should be given copies of the documents before they were read out by the Police Constable".[35]I have read enough of the judgment in that case to indicate that that case concerned the stage at which the inquest was about to be held, (so in this case shortly before 4th February 2009), and the ability of a person in the claimant's position to make a realistic contribution to the inquest hearing. So, of course it is right that the decision of Sullivan J in that case does not cover the situation which applies in this case where we are dealing with a stage months before the inquest is due to take place.[36]Further reliance was placed on the submission that the family of a deceased has the right to bring about a second post mortem, perhaps absent reasonable grounds for refusal. For that contention, reliance was placed on the case of R v South London Coroner ex parte Ridley [1985] 1 WLR 1347. In that case Saville J, as he then was, in a short judgment dealing with the refusal of the Coroner to allow a second post mortem after an application had actually been made, indicated that in that particular case there was no reasonable ground for refusing such, and so he concluded by not only quashing the decision that she had made but directing the Coroner in that case to consent to the carrying out of a second post mortem. That does not, in my judgment, alter the normal position, which is that the decision, providing proper consideration has been given to the taking of it, is not one for this court and is one for the Coroner. To translate the judgment in Ridley to this case, it is impossible to predict what a reasonable Coroner would have done faced with such a request, because none was actually made.[37]It is submitted that the delay prevented a proper further examination. In support of that contention the claimant relies on a report produced by another pathologist, Dr Michael Osbourn, who makes a number of comments, to which I do not refer because they seem to me to have very little relevance to the issues in this case, about the adequacy of the report of Professor Risdon. He does, however, say this on the question of histology. At paragraph C of his report he says:
"The cause of death was given as unascertained. This is not in itself an unusual result from a coronial autopsy, however in order to give this as the cause of death, all reasonable efforts should be made to exclude possible underlying causes. To this effect, toxicology should be taken. It was and came back negative. In addition, however, and in accordance with the Royal College of Pathologists' Guidelines on Autopsy Practice, most pathologists would have taken samples for histology as well. The exact samples taken would vary from pathologist to pathologist and with the past medical history of the deceased. Most pathologists would however feel that sampling the major organs, heart, liver, lungs, kidneys, at least would be appropriate and in line with the Royal College of Pathologists' Guidelines stated above"
. A little later on he writes: 44. "There are few pathologists, I believe, who dispute the need for histology in a case such as this. However, hindsight is a very powerful tool and there may be several reasons why a pathologist would not take samples for histology in such a case. One [which is certainly not the case here], would be the possibility that the body was so decomposed and histology was futile. Another [again not this case], would be that the evidence of drug or alcohol misuse was so overpoweringly great that the pathologist believed histology was futile".[38]He refers to what might be described perhaps as a cultural reluctance now for Coroners to allow histology, and because of the difficulties they apprehend from the provisions of the Human Tissue Act of 2004.[39]However, having summarised that, he said this: "However, given the information I have available to me, I would imagine that this body of opinion would be very small in a case such as this and the vast majority of pathologists would have taken histology in this case. It should however also be remembered that local practices vary between Coroner's jurisdictions".[40]In reply, Mr Beer submitted that, as I have already pointed out going through the cases, Bentley does not go anywhere near saying in terms that this situation is amenable to the kind of regime contended for by Mr Straw on behalf of the claimant. He further submits, that the Claimant’s contentions so far as detriment is concerned, are baseless. The delay in the receipt of the post mortem examination and toxicology reports did not cause such detriment because it was open to the Claimant to have requested a second post-mortem examination, to have requested her own toxicological analysis, and to have requested her own histopathological analysis even if they had been received shortly after 25th March 2008 of her own accord – none of this was dependant upon receiving the reports commissioned by the Coroner. This, in my judgment, ignores the reality. In a case of this kind, this particular case and cases like it, we are dealing with ordinary members of the public who have just been bereaved, often with limited means, who by and large are justifiably content to rely on the public bodies who carry out functions such as Coroner's Inquests to carry them out properly and fully, effectively on their, the public's, behalf.[41]Mr Beer submits, further, that since the defendant was already buried, by decision of the claimant, before the post mortem report became available on 25th March 2008, in order to conduct a second post-mortem examination and / or obtain samples for histopathogical analysis, would have necessitated an application for exhumation under section 23 of the Coroners Act, no doubt in this particular case to a different Coroner, because the burial took part in a different part of London. There is no certainty that such an application would have been granted. He submits that the claimant, had she wished, could have made an application at least for a second post mortem without sight of the first post mortem report or the toxicology report. Once again, that seems to me to ignore the realities of life. It is unreasonable to expect a member of the public in the position of the claimant to involve herself in the personal and financial expense of having the body of her son exhumed, assuming the Coroner would have allowed it in any event, when she has no idea of at all what the first post mortem and toxicology report have found.[42]I stress, as I will do later, this case is by no means exceptional but it is unusual. It is a case where the cause of death was, and remains, unascertained. Those cases seem to me to demand special attention to the bereaved relatives, for reasons which should be obvious.[43]The next matter that Mr Straw submitted was that the delay in notifying the claimant of the existence of the reports so that she could ask for them was contrary to the statutory purpose of inquests. In that context he relies on the speech of Lord Bingham in R(West and Smith) v the Parole Board [2005] 1 WLR 350, and the general remarks on fairness. This case concerned the Parole Board and the revocations of licenses of prisoners. At paragraph 27 he said:
"What does fairness in this context require?"

A little later on he writes:

[44]A little later Lord Bingham quoted from a judgment of Mason J in Kaioa v West [1985] 60 ALJR 113 and 137: "In this respect, the expression 'procedural fairness' more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory powerground must be exercised fairly, that is in accordance with the procedures that are fair to the individual, considered in the light of the statutory requirements, the interests of the individual, and the interests and purposes, whether public or private, which the statute seeks to advance or protect, or permits to be taken into account as legitimate considerations".[45]Mr Straw submits, correctly in my judgment, that the principal purposes of the Coronial legislation is to find out how deceased persons came by their deaths and that the delay in informing the claimant of the existence of the reports so that she could make an informed decision as to whether she wished to take matters further did indeed effect that purpose adversely. In particular because, and I have already said it once, this case was, so far as the Coroner knew, from the outset a case where the cause of death was unascertained.[46]It was further submitted that the defendant had breached the guidance in Home Office Circular 30 of 1999 without good reason. In that context Mr Straw sought to put a further new challenge, not hitherto brought. The paragraph relied on is paragraph 8: "In arranging the post mortem examination, the Coroner will make it clear to the pathologist the circumstances of the death and the need for his report to be supplied without delay, and in any event within 14 days. When the examination is complete, the Coroner will immediately provide copies of the report, when received, to all those having a proper interest, including the Chief Officer of Police and any person who has been charged in connection with the death. The next of kin of the deceased should also be advised that the report is available".[47]In this context reliance was placed on the passage in Gransden and Company Limited and Another v the Secretary of State for the Environment and Another [1987] P. and C.R. 86, in which what is now well known principle was enunciated on the question of whether public bodies should follow policies that they have issued and the need, if they do depart from such policies, to give clear reasons to anybody affected as to why they have done so. As to this ground, I need say no more than that I accept the defendant’s submissions on it. Mr Beer submitted that this is not even a policy document, it is merely the memorandum of good practice, and as such does not fall to be considered under Gransden principles. Secondly, that the memorandum is a memorandum concerning suspicious deaths and the treatment of those; this is not such a death. Finally, so far as the point that was made at least in the skeleton argument by Mr Straw as to the failure to supply within 14 days, that too falls foul of the same difficulty. In any event, leave should not be given to proceed with this ground, it not having been pleaded originally.[48]All those reasons seem to me to be good reasons.[49]Next, the claimant relied on the assurance, as she alleged, that she would be informed of the existence of the report, and, no doubt, then supplied with it when so informed. I have gone through the history of the correspondence and the telephone conversations between the claimant and Mr Hardie and I have indicated my view of where the truth lies. There was, in my judgment, a failure to act upon/carry out effective assurances that had been given to the claimant, who was entitled to assume that when the report was ready she would be told about it and if she asked for one she would be given a copy. The point made by Mr Beer is that there was no formal request or formal application as set out in the rules, although he realistically accepted that such applications from persons in the position of the claimant would not have to be written on headed note paper, they could be oral or written according to the circumstances of the person who was making the request.[50]I indicated earlier that I would return to the case of R v Her Majesty's Coroner at Hammersmith ex parte Peach (No’s 1 and 2) [1982] WLR 496 and the judgment of Lord Widgery CJ in that case. At page 504 of the judgment he said this: "It is important, I think, to stress that, as far as I know, there has never been a case on which natural justice was invoked for the denial of documents, except when the person to whom the documents had been denied was a person against whom some charge was being made. It is elementary that if a charge is being made against a person, he must be given a fair chance of meeting it. That often means he must be given documents necessary for the purpose. But there is no charge here made against Mr Peach, the applicant. To my mind, try as he will, he fails to get himself in through any of these three doors. For that reason I would refuse the application".[51]While Mr Beer realistically concedes that in-roads have been made into that principle in the last 30 years, he maintains that it is still an important principle and the court needs to have regard to it when considering cases such as this where a Coroner is considering the disclosure of documents.[52]I accept the general submission that there is no duty on a Coroner to disclose a post mortem or other report before the inquest without an application to do so, and no duty on the Coroner to disclose at all it if there is good reason not to do so. It is possible to imagine many circumstances in which that would be a proper stance to take. However, I find that the failure of the defendant in this case to give the claimant the opportunity to do so was a failure which prevented her from making an application in time for it to be any use, emphasising, as I have already, that this is a case where one of the principal purposes of an inquest, namely the establishing of the cause of death, has proved impossible to achieve. Peach was decided at a time when, in the criminal proceedings, there was no disclosure at all in contested trials in the Magistrates' Court, and the duty of disclosure generally in criminal cases was almost entirely confined to disclosure of the convictions of witnesses and previous inconsistent statements of witnesses who were actually to be called by the Crown. One only has to state that to see how far disclosure in related fields to the present has come since that time.[53]The last submission on this topic made by Mr Straw was that present day standards mean that there should be constant development of the rules around fairness. To an extent, I agree. A number of the cases decided over the last 30 years have effectively adapted the standards of fairness in various fields to present day standards, both before and after the passage of the Human Rights Act 1998. However, I do not believe that the finding I have made in the claimant's favour in this claim, on the grounds I have indicated, actually marks any further change to standards of fairness. As I have already said, in particular this ruling is not intended to hold that post mortem and other reports, or even the existence of such reports, must be disclosed to an interested person, absent an indication of the person’s wish to be informed. It should have been perfectly clear to the Coroner's Officer that the claimant wanted to be informed of the fact that the reports were in, and of their contents.[54]Turning to the Rule 57 of the Coroners Rules, as I have already indicated, my judgment in this case is that there was an application, albeit an informal one. Rule 57 of the Coroners Rules 1984 provides:
"1) A Coroner shall, on application and on payment of the prescribed fee, if any, supply to any person, who in the opinion of the Coroner is a properly interested person, a copy of any report of a post mortem examination, including one made under section 19 of the 1988 Act, or special examination, or of any notification made under various rules, or of notes of evidence or any document put in evidence at an inquest. 2) A Coroner may, on application and without charge, permit any person, who in any opinion of the Coroner is a properly interested person, to inspect such report..."
[55]Mr Beer makes the point that there has been no payment of the prescribed fee and, therefore, he submits there can be no breach of the Rules. It seems to me that what has happened here is that there has been an application, but no fee was demanded; it would be wholly unrealistic to suppose that the claimant would know that she had to pay a fee and, if she did, how much it would be. Therefore, there has effectively been a failure to comply with Rule 57 of the Rules.[56]I make it absolutely plain, if I have not already, that the Coroner himself who eventually conducted the inquest seems to have played no part whatever, personally, in what went on, in particular because he was not even in post until, as I understand it, the latter part of 2008.[57]The last claim made by the claimant is under Article 8 of the European Convention on Human Rights. While Mr Straw conceded that there is no authority, either domestic or European, which deals with the particular situation with which this court is confronted, he argues that the right to private life has been found to involve situations at least analogous to the current situation. In support of his submission he cited a number of authorities, mainly European but not exclusively European.[58]The first was the case of Gaskin v the United Kingdom [1990] 12 EHRR 36. The applicant in this case wanted access to files held by a council on him from when he had been a child in the care of that council. The European Court held that such files were part of his private life and were matters to which he was entitled to have access.[59]In Mikulić v Croatia [2002] 11 BRHC 689, the applicant was a child who wished to establish her paternity. It was held that the prolonged uncertainty for her, caused by some 4 and a half years of delay in the court system in that country, failed to secure respect for her family life, and of course that the identity of her father was certainly something which came within the purview of Article 8.[60]In Pannullo and Fortei v France [2003] 36 EHRR 42 the applicants were the parents of a 2 year old daughter who had died in hospital. There had been a long delay in releasing the body of the child to her parents for burial. The Government of France in that case conceded a breach of Article 8 and tried, unsuccessfully, to show that the interference with those rights had been justified, so that the principle that the right to bury a close relative in a reasonable time was definitely one which engaged Article 8.[61]Odievre v France [2004] 38 EHRR 43 was a case of a child whose mother's identity had been concealed from her by a provision of French law which allowed mothers who wished to put their babies for adoption to have their identities concealed. The court upheld the principle that the identity of one’s mother is a fact within Article 8, and found in that case that French law struck a proper balance between competing interests of the mother and the child and found that the interference was proportionate and therefore no breach.[62]In the case of Esfandiari and others v the Secretary of State for Work and Pensions [2006] EWCA Civ 282 concerned the practice of the respondent in that case of funding the funerals of those who had not the resources to pay for them themselves. Once again, the court held that the right to bury a child or close relative was part of private life and within Article 8.[63]Finally, Znamenskaya v Russia [2007] 44 EHRR 15 was a case involving an applicant who had given birth to a still born child and wanted to bury him. She wished to challenge the identity of the father on the birth certificate and wished to have the name of the person she said was the actual father of the dead baby put on the tombstone. Again, in this case, the European Court held that the right to establish the paternity of your own child was within Article 8.[64]In my judgment, these cases, the facts of which I have briefly summarised, are sufficiently far removed from the facts of this case for the Article 8 argument to fail. First of all, the cases cited concerned either the true identity of the applicant, or facts about his or her early life in the hands of the authorities, or the right to provide a proper funeral for a close relative. Second, there cannot, it seems to me, be a right to know a cause of death when in so many cases it is impossible to establish. Third, this case concerns an adult family member who was not living with the claimant, so the considerations which might conceivably apply to a mother in the claimant's position whose baby or young child had died in unexplained circumstances simply do not apply here. So that, while I would not wish to shut out the possibility of an Article 8 claim succeeding in circumstances of that kind, this case has none of those characteristics.[65]In those circumstances, I propose to grant the declaration sought, both as to the common law and Rule 57 of the Coroner's Rules, and would ask counsel to draft, if they can, an agreed order. Costs, Mr Straw? MR STRAW: I am grateful, my Lord. I would apply for 50 per cent of the claimant's costs to be paid for by the defendant. Clearly, we have not succeeded on one of the grounds, but the primary grounds of the claimant's case have always been the common law, the first two grounds. MR JUSTICE CALVERT SMITH: Are you legally aided? MR STRAW: We are, yes. MR JUSTICE CALVERT SMITH: I do have in mind, Mr Straw, that the grounds as originally pleaded were rather more, well they were rather different to the ones that were presented to the court, and that the defendant had to do a great deal of work, as it were, defending a position which it was not actually necessary to defend in the end, ie is there an absolute right under the common law to disclosure of reports and that sort of thing. MR STRAW: My Lord, just two points really about that. Firstly, there were different points raised at the permission hearing, in particular the Article 2 ground, but the normal rule under paragraph 8.6 of the Judicial Review Practice Directions is that the defendant would not obtain costs for appearing at the oral permission hearing. The second point being that, notwithstanding those points that your Lordship has drawn attention to, the majority of the costs in this case would still have been incurred by both parties. MR JUSTICE CALVERT SMITH: Yes. Mr Beer? MR BEER: My Lord, I would say that the justice of the situation could be properly reflected in no order as to costs, principally for the reason that my Lord has given. What one would… MR JUSTICE CALVERT SMITH: It seems to me, Mr Beer, that had the claimant's claim been really as it was presented to you, subject to the Article 8 matter which they of course lost, we might not even conceivably have had a hearing. MR BEER: I cannot say definitively on that, but it was the ambition of the submission that caused us to be here. One will see that on each basis on which my Lord has found in favour of the claimant, none of those found expression in the grounds. MR JUSTICE CALVERT SMITH: Originally, no. MR BEER: They all found expression in my friend's skeleton argument, served within time of course, but 3 weeks before the first hearing. That is why we say… MR JUSTICE CALVERT SMITH: Yes. Well, thank you. I think, Mr Straw, in the circumstances, and bearing in mind too as I am entitled, I believe, to take into account the other circumstances, it does seem to me that the Coroner himself did all he possibly could at the time of the inquest to, not to put right, but at least to apologise for the damage he had done. In those circumstances, for the reasons I have outlined with Mr Beer, I think the costs should stay as between the parties. MR STRAW: My Lord, just then three brief matters. The first is can we therefore have the usual order for the detailed assessment of the claimant's publicly funded costs? MR JUSTICE CALVERT SMITH: You may. Yes. MR STRAW: The second point is there were one or two possible typos in the judgment. MR JUSTICE CALVERT SMITH: I am sure there were lots. There were one or two case references I certainly did not put in. Can I send the transcript down to you when I have got it and you can put them right. MR STRAW: Of course, yes. The final point, my Lord, is just briefly to apply for permission to appeal in relation to the Human Rights Act ground, on the basis of their being a wider public importance to the point in that the circumstances, and similar circumstances, and therefore the question of whether Article 8 arises, are likely to occur in a significant number of cases in the future. MR JUSTICE CALVERT SMITH: Yes. Well, Mr Straw, I take the point. If there was an arguable Article 8 point it would be of wider public importance, because it would be quite an extension of Article 8 into an area which it has not yet gone into. I am bound to say that I am pretty clear that Article 8 does not go that far and therefore I think you will have to go elsewhere if you want to appeal the matter. MR BEER: My Lord, I know the time of day. Given that my friend has made that application, I ought to cross apply to you formally for permission to appeal on the balance of your judgment, if only to preserve the position. We note what my Lord has said as to the limited impact of the judgment. MR JUSTICE CALVERT SMITH: I have tried to stress "un‑ascertained" is what really lies at the core of this judgment. MR BEER: Yes. What we would simply say to that, as I think was said in argument, that un‑ascertained as a cause of death is not one that is unfamiliar to the Coroners. It involves thousands, if not tens of thousands, of death certificates, a very high proportion of them come back as un‑ascertained. You have ruled that the law does not go as far as imposing a duty of disclosure or notification absent an application but the circumstances of this case, namely requests made for updates as to information and a genuine and persistent desire to find out what had happened, taken together imposed a duty of notification. MR JUSTICE CALVERT SMITH: Amounted to applications, effectively. MR BEER: Yes, exactly. In a very high number of cases those generalised features are going to be present, namely a desire to find out why a close relative has died, and generalised request for information and update. If my Lord's ruling stands, then the obligation of disclosure will arise and notification will arise in such cases. MR JUSTICE CALVERT SMITH: Well, notification, certainly. Yes. MR BEER: For those reasons, we would submit that the case raises a point of practice of wider application, so I ask for permission to appeal. MR JUSTICE CALVERT SMITH: I am grateful, Mr Beer. Really for the same reasons, it seems to me that the position with un‑ascertained deaths has to be that, if the interested person in the claimant's position is making the sorts of requests that she is making, then there must be a duty to keep her fully informed rather than leave her in the dark for months. This was such a clear case that it does not seem to me that an appeal is likely to succeed. Thank you very much.