The Use of Judgmental Language in the Coronial Context in Respect of Non-Public Agents/Organisations

In Jamieson type cases (that is non-Article 2 cases ) the position seems clear that judgmental language in answer to the how question (by what means) within a conclusion is to be avoided. After R (Gorani) v Assistant Coroner for West London [2022] EWHC 15, where Article 2 applies, the position might be said to be less clear in respect of the use of judgmental language as regards non-public agents/ organisations.

The facts in Gorani can be summarised as follows: In the year before the deceased’s death, he had received psychiatric treatment for anxiety and depression from his GP and the local mental health NHS trust team. In the week prior to his death, the deceased had sought help from the single point of access at the NHS trust. This call was not assessed and triaged as it ought to have been and, as a result, he was not spoken to. The following day the deceased saw his GP who assessed him and referred him for psychotherapy. The next day the deceased was dismissed at work. He fell to his death from a fifth-floor balcony four days later. The Coroner ruled that the Article 2 systems duty was arguably breached by a Mental Health Trust but did not find that Article 2 was engaged in respect of a GP.

In the Administrative Court, the argument that once a coroner had declared that the inquest was to be “an Article 2 inquest”, all aspects of the Article 2 jurisdiction were in play, was rejected. In other words, there may be some cases where some issues (and indeed IPs) can be differentiated from others in respect of the Article 2 duty. It did not however go on to consider whether judgmental language can still be used in respect of non-public agents/organisations in respect of which Article 2 is not engaged.

Whilst there is no specific case authority on the point the Administrative Court considered the use of judgmental language R (Cash) v HM Coroner for Northamptonshire [2007] EWHC 1354 (Admin).  Although the case was decided when the 1988 framework applied, the provisions remain essentially the same, in that, there was a requirement to return a conclusion answering the four statutory questions (with the statutory addition of circumstances in A2 cases), juries were not permitted to comment on any other matters, and there could be no findings of civil liability, or criminal liability in respect of named persons. Cash was an Article 2 case because the deceased was in police detention at the time.

In Cash, the Coroner directed the jury to leave a narrative which was “entirely descriptive, neutral and non-judgmental”.  Her reasoning was that a judgmental conclusion would breach the rule 42 prohibition against making findings of liability.  The Court found at [49] that the narrative the jury returned was “anodyne” and:

“added nothing of significance to anyone’s knowledge of the circumstances surrounding Mr Cash’s death.   It certainly cast no light at all on the core factual questions which the inquest had addressed”.

The Court cited Middleton[1] that a judgmental conclusion can be framed in a way that does not infringe the prohibitions against findings of liability and opinions on other matters.  The Court ultimately held that [52]:

“the coroner’s direction to the jury about the content of the narrative verdict which they should complete in box 3 had the effect of preventing them from embodying in it “a judgmental conclusion” of a factual nature on the disputed factual issues at the heart of the case.”

In light of the above, it appears to this author at least that, in cases like Gorani, where certain Interested Persons can be distinguished from others for the purposes of the Article 2 duty, it would not be appropriate to permit judgmental language in relation to them. However, in cases where it is impossible to disentangle the role of a private or non-state actor from that of a state actor (applying Cash), it would appear that a coroner is required to leave judgmental language to the jury to enable it to reach a conclusion on the central issues.

[1] R (Middleton) v West Somerset Coroner [2004] 2 AC 182