Directing the jury: R (Ginn) v HM Senior Coroner for Inner London  EWHC 28 (Admin)
Mr Robert Ginn took his own life at HMP Pentonville on 5 November 2018. HM Senior Coroner for Inner London determined that Article 2 was engaged and conducted the inquest with a jury. The inquest lasted six days and heard from 27 witnesses, 14 of whom gave evidence orally. At the conclusion of the inquest the Coroner ruled that only a narrative conclusion was available to the jury.
The Coroner was invited by counsel for Mr Ginn’s family to provide assistance to the jury about the type of issues they should be commenting on in their narrative conclusion in order to fulfil their role and satisfy Article 2. A list of 10 possible issues was provided by the family. The Ministry of Justice, representing HMP Pentonville, did not object to a list of issues nor to the majority of the issues identified.
The Coroner declined to give the jury any written directions, a list of issues to consider or a questionnaire posing questions on the relevant issues. In due course, the jury’s narrative determination made no mention of any of the issues raised during the inquest, or highlighted by the family.
On review, the court focused on precisely what matters should be left to/ determined by a jury in order to comply with Section 5(1) and (2) of the Coroners and Justice Act 2009, namely “how…the deceased came by his or her death” and, in an Article 2 inquest, “in what circumstances the deceased came by his or her death”.
The court concluded that the case law and the Chief Coroner’s guidance No 17 – Conclusions: Short-Form and Narrative” all strongly encourage Coroners to give jurors some form of written directions, at least if the inquest “is not wholly straightforward or of any complexity.” It accepted that each of the 10 issues highlighted by the family’s submissions were “central issues” which fell to be considered by the jury. Further, the legal concepts which they jury were asked to apply were complex, namely:
- whether a fact or circumstance which more than minimally, negligibly or trivially contributed to the death meets the threshold for causation; and
- the need to give a judgemental narrative without framing the conclusion in such a way as to appear to determine any question of criminal liability or civil liability.
As a result, the Court concluded that it would have been “advisable to give written directions in this inquest, in the absence of any good reason to depart from the guidance… Where nothing is provided to the jury in writing, whether in the form of written directions or a questionnaire, errors are liable to occur.”
However, the decision not to give written directions was not, in itself, a public law error. The absence of written directions is no more than the context in which the question whether full and fair directions as to the law were given falls to be determined.
The Coroner also fell into error in the directions that she gave. The Coroner directed the jury that if they found that any failing more than minimally or trivially contributed to Mr Ginn’s death then they could record that in their narrative conclusion. But she did not identify the central issues, direct the jury that they must consider them, or direct the jury that they must include in the narrative any such matters that they determined caused or contributed to Mr Ginn’s death.
As a consequence, the Coroner failed to elicit the jury’s conclusions on the central factual issues at the inquest and so the jury failed to make the determination required by s.10 of the 2009 Act, and the inquest did not comply with article 2.