The Tunisia Inquests
On 28 February 2017, HHJ Lorraine-Smith handed down judgment and conclusions in the Tunisia Inquests. Despite one or two juicy soundbites in the narrative, his conclusions on cause of death were conventional and predictable. In summary, on 25 June 2015, each of the deceased was shot dead by a terrorist inside or within the vicinity of the RIU Imperial Marhaba Hotel in Sousse, Tunisia. All 30 were unlawfully killed.
Those representing the families had made valiant attempts to persuade the Coroner to reach further conclusions. They suggested that the unlawful killing by a terrorist was contributed to in part because:
- The risk of a terrorist attack at the hotel had not been recognised or taken seriously enough, and appropriate security precautions had not been put in place or enforced during the attack; or
- The terrorist attack at the hotel had been neglected and appropriate security precautions to deter, prevent or counteract an attack had been neglected.
The Coroner dealt with (1) swiftly. This was not an Article 2 inquest, and any narrative conclusion had to be a brief and neutral factual statement, without expressing any judgment or opinion. He felt unable to reach the proposed conclusion as a matter of law.
Proposed conclusion (2) required a deeper analysis. The key question was whether it was open to the Coroner, in the circumstances of the case, to find that the unlawful killing had been contributed to by neglect.
To determine this, the Coroner had to consider whether the deceased were in a dependent position. The long-established test, as set out in Jamieson [R v Her Majesty’ Coroner for North Humberside and Scunthorpe ex parte Jamieson (1995) QB 1] was whether each was “someone in a dependent position (because of youth, age, illness or incarceration)”. The Coroner found that this did not cover a tourist who had voluntarily agreed to go on holiday abroad.
On behalf of the families, it was submitted that the definition of “dependent position” should be widened. Unfortunately, this submission was made in a vacuum of authority. There had been no expansion of the test since Jamieson. This was reflected in the Chief Coroner’s guidance number 17, revised on 14 January 2016. In the circumstances, HHJ Lorraine-Smith was not prepared to make what would have been a quantum leap in the common law.
There would have been a second hurdle for the families to overcome, in any event. The circumstances surrounding the terrorist attack did not fit with a failure to provide adequate nourishment or liquid, basic medical attention, shelter or warmth. Notwithstanding attempts by the families to widen dependency to include the concept of security, the Coroner ruled against them.
There was a further problem with the families’ position. As made clear in Jamieson, neglect should never form any part of a verdict “unless a clear and direct causal connection is established between the conduct so described and the cause of death”. Here, the Coroner found that any measures that might legally have been put in place at the Hotel would not have made a difference. True, there were “deficiencies” in the response by law enforcement personnel, with police response being “at best shambolic, at worst cowardly” (a soundbite repeated in media reports afterwards). However, there was not a “clear and direct” causal connection between any such deficiencies and the deaths caused by the gunman.
The Coroner recognised that if some customers had read the details of the FCO Travel Advice, they might have chosen not to go to Tunisia. He considered evidence on the development of FCO Travel Advice, and guidance given by the travel company, especially in the wake of the killing of Western Tourists at the Bardo Museum in Tunisia in March 2015, just 3 months before the attack at the RIU Imperial Marhaba Hotel. Adequacy of travel advice was within the Scope of the Inquests. However, this point was too remote from the cause of death to be part of the verdict.
Even though nothing new has come from it, the ruling provides a helpful and succinct summary of the relevant law, and illustrates the difficulties that can arise when attempting to persuade a Coroner to attach “neglect” to a verdict.