Sutovic, R (on the application of) v HM Coroner Northern District of Greater London

On 27 January 2004 the claimant’s son, Petar Sutovic, died in a flat in Belgrade, Serbia. He was aged only 24. His mother is a solicitor in London. Her son was a British citizen. Since the body of Petar Sutovic was returned to the district of the North London coroner he assumed jurisdiction once the presence of the body in his district was reported to him (Section 8 of the Coroners Act 1988 and R v West Yorkshire Coroner, ex p. Smith [1983] 1 QB 335).

On 27 September 2004 the coroner returned an open verdict. The injury causing death was described as:-

“Morphine poisoning”.

Under the heading:-

“Time, place and circumstances at or in which injury was sustained”,

the coroner recorded:-

“In the early hours of 27 January 2004 the deceased was seen, lifeless at his mother’s flat in Belgrade. There was no evidence as to the exact circumstances surrounding the death. He had previously been a drug abuser but his mother said that recent drug screens were negative.”

There are two sets of proceedings which we have heard at the same time. Firstly, the claimant seeks judicially to review the coroner’s verdict on the grounds of procedural irregularity and insufficiency of enquiry. This claim was issued on 1 December 2004. Secondly, she brings an application pursuant to Section 13 of the Coroners Act 1988. The Attorney-General’s consent was granted on 15 April 2005 and this claim was issued on 25 May 2005. The claimant contends, that as a result of evidence which she has now obtained it is both necessary and desirable, in the interests of justice, that another inquest should be held. There is a real possibility that a different verdict could be reached.

Because it might appear, during the course of this judgment, that we are being unduly critical of the claimant it is necessary to say something about the circumstances in which she brings these proceedings, at the outset. It is not possible for this court to share in her grief nor fully to comprehend the impact it must have on her, faced with the loss of her young son. We can only express sympathy and attempt to show understanding. But the undoubted grief which she has suffered has had a substantial impact upon the conduct of this case. With the benefit of counsel, and in particular the coroner and his counsel, Mr Beer, we have been able to focus upon issues of substance which the vast body of material with which we were supplied threatened to overwhelm. Although we have been able to focus upon specific issues on which Mr Lissack QC, on behalf of the claimant, wisely concentrated, it is necessary to record that the coroner has been faced with unceasing and in many cases unwarranted accusations. Some have been withdrawn, others have been left in the air, many are without foundation. The claimant, in her grief, has, understandably, been unable to conduct this litigation with any sense of proportion. We shall endeavour to do so by concentrating on issues that seem to us to be worthy of consideration and relevant to our conclusions. That does not mean that we have not considered everything else which has been laid before us. Nor should it be overlooked that a large number of grounds and accusations have at one time or another been advanced and then either withdrawn or left in the air. The coroner has borne the brunt of this approach with a proper sense of neutrality and dignity.

On 27 January 2004 the claimant’s son died in his flat in Belgrade, Serbia. On the same date, 27 January 2004 a junior ensign, Boris Mitrovic, wrote a report. In the first paragraph it said:-

“The death was most probably caused by an overdose of narcotics.”

The report continues by recording that the death was established at 2.56am by a physician on duty, Dr Zivanovic, pursuant to the order of an investigation judge. The report says that the entrance door of the flat was locked and sealed and that the key of the flat was placed with the Secretariat of General Administration. The report continues:-

“On the spot was interviewed the deceased’s friend, Sergej Nesic… has known the deceased who used to visit the place as a guest. He further declared that starting from two weeks ago he has lived at the deceased’s place and that he had to agree with the deceased to continue living there as a sub-tenant. According to Nesic, the deceased was a treated drug addict; however, three days ago when he came from work he found the deceased in the flat who according to his physical aspect and behaviour gave an impression of a man under the effect of drugs and, therefore, he, Nesic, concluded that the deceased started to be on drugs again and added that on 26 January, around 11.20pm Sutovic came to the flat where already were Sergej Nesic and a friend of both of them. Zoki Cupac, a citizen of Australia…on which occasion, after dinner, Sutovic went to his room leaving the two of them alone, and when on 27 January about 2.30am Nesic entered his room you found him dead and with the tools for drug administering beside him, which was confirmed by Cupac when he was interviewed.

In the interview held with the patrol on duty of this Internal Affairs Unit, these two persons confirmed that when coming to the spot they saw a syringe and a needle stuck in the deceased’s left arm, which fell out while paramedics were rendering aid to the deceased.

A crime-laboratory technician, Emus Ranko, inspected the body on the spot from which he took one used syringe with a needle, three more needles, one metallic spoon, two foils from cigarette boxes with the traces of brown powder on them, and two halves of tablets of the same colour, which will all be forwarded to OKT.”

The following day an autopsy was conducted at the Institute of Forensic Medicine. The report is dated 28 January 2004 and signed by four pathologists. The report contains a chemical toxicological analysis of internal organs and biological fluids. It explains the method by which the analysis was made. It records a number of external findings which include what are described as “several circular openings” with mildly bruised edges and sides continuing into the subcutaneous soft tissue in the left elbow and below it. It describes in the ulnar area of the left forearm the skin as being bluish purple with hematoma (sic) and an opening with flat mildly bruised edges and sides continuing with a channel to the subcutaneous soft tissue. It records that there was no foreign matter in the ears, nose, or mouth but dark grey dry matter in the nostrils and round the mouth edges. It records the clothing as being a white T-shirt, green jeans, black socks, black underpants, black high winter shoes with shoelaces. In relation to the internal examination, examination of the head and skull showed no injury and no fractures. The conclusion was recorded as:-

“A violent death, caused by intake of drugs.”

The reference to violent death, it was agreed, signified no more than that which follows, namely, intake of drugs.

The claimant had always remained in a very close relationship with her son. He was extremely intelligent. Unfortunately he was, whilst a student, diagnosed as diabetic. In 2000 he suffered a serious injury when he was knocked down by a lorry. At some stage, it appears he became addicted to heroin although in the period before his death the claimant was satisfied that he had managed to rid himself of the habit. Information received after the inquest may (see paragraph [67]) suggest her confidence was misplaced. She speaks of a telephone call on 23 January 2004 when he appeared agitated as a result of a visit by the police. Nothing turns on this for the purposes of these proceedings but the incident clearly fuelled the claimant’s suspicions.

She learnt of her son’s death on the telephone in the early hours of 27 January 2004 from a relative. On the morning of the same day she spoke to Nesic. Although the conversation has, similarly, fuelled her suspicions it is unnecessary to relate his account for the purposes of these proceedings. Of greater relevance are her conversations with the housekeeper of the flat who had apparently been working for the family for a substantial period. Two pieces of information obtained from conversations with the housekeeper are relevant. But we are unclear as to the precise date of those conversations. This may partly be a result of the fact that certain exhibits have been lost by solicitors, previously instructed by this claimant. During the course of a conversation with the housekeeper which was recorded, the claimant and the housekeeper, Vesna Vesalinovic, discussed what appeared to the housekeeper to be substantial blood on part of the clothing of Petar Sutovic and on the bedclothes. Further, it seemed to the housekeeper that someone had beaten him up. She is recorded as saying:-

“His nose does not resemble…he does not look himself.”

It is important to note that the claimant responded:-

“But when I saw him after two days, when he arrived here, his face was totally normal…nothing swollen, nothing, nothing.”

The claimant repeated that and the housekeeper responded that she was told by someone who had prepared the body that there were no marks on the face.

The claimant had indeed seen the body of her son at the mortuary on 31 January 2004.

On 2 January 2004 the inquest was opened and adjourned. A further post mortem examination, this time in England, was carried out on the same day by Dr Rufus Crompton. On external examination it records small sutured incisions on the left forearm and in the left groin but:-

“No apparent old or recent injection marks were seen…No injuries were seen.”

It concluded:-

“Death was associated with a potentially fatal blood level of Morphine. Six other drugs were present at therapeutic levels. There was no evidence of hypoglycaemia.”

This pathologist then recorded the cause of death as “morphine poisoning”.

Two further toxicology reports were obtained from St. George’s Hospital, dated 16 February 2004 and, on 18 February 2004, Dr Crompton made a supplementary report recording the amounts of drugs present which, he said, were associated with the fatality.

Following the arrival of the deceased’s body the claimant sought, understandably, to find out as much as she could about the circumstances of her son’s death. She now says that it appeared to her, when she saw the body, that there was something wrong with her son’s nose. That is not what she said nearer the time to her housekeeper in the recorded conversation.

The claimant has noted what she perceived to be discrepancies between the Mitrovic report and what she was told by Mr Nesic. It is unnecessary, for the purposes of these proceedings to detail these discrepancies save, as this judgment will subsequently demonstrate, they had a real foundation in the inadequacies of the original investigation.

The most important matters, which caused her the greatest concern, emerged once she had seen the photographs taken by the police at the time of death. They appeared, to her, to show serious injuries to her son’s nose and face, and significant bleeding. Those concerns were aggravated by what she was told about her son’s appearance and blood on bed clothing and on her son’s clothing in the flat.

Moreover she was told by her housekeeper that it appeared there was blood, the result of injury, on the wall. Her housekeeper was recorded as saying:-

“On the wall, on the wall as if something burst on to it…It looks as if he was hit and that, that burst…”

The claimant’s fears appeared to her to be further confirmed by the fact that the clothes her son was wearing on his return to the United Kingdom were substantially stained by what appeared to be blood.

As a result of her fear and anxiety as to what had happened to her son, the claimant wrote four letters to the coroner between 23 February 2004 and 25 March 2004. On 23 February 2004 she pointed out that Dr Crompton’s medical report showed no signs of recent marks on his body. She continued:-

“My son has never taken morphine, save as a prescribed drug whilst he was in hospital in Israel after a horrendous traffic accident where he was given a 5% chance of survival in 2000.”

The letter continued by asserting that her son had undertaken drug tests for the past two years, implying that he was not abusing drugs. She stated that she suspected that her son had been murdered. She continued in later letters in a similar vain.

During the course of her investigations she instructed private investigators in Belgrade but subsequently dismissed them, asserting that they were working against her.

On 29 March 2004 a further toxicology report was obtained showing that no 6-monoacetylmorphine was detected. On the same date Mrs Button explained that the absence of 6-MAM, which will not be detectable after about ten minutes from ingestion, does not exclude heroin abuse. As was accepted during the course of argument, its non-detection merely revealed that death was not immediate. This created further suspicion in the mind of the claimant who at that time believed that a syringe was found in her son’s arm. Since that later proved to be untrue, the continuing debate as to the fact that 6-MAM was not detected seemed to us to be pointless.

On 20 April 2004 the claimant asserted that her son had never taken morphine. On 27 April 2004 the coroner responded, with patience and courtesy that:-

“I have had my own pathology and toxicology performed which indicates that morphine poisoning is the cause of death, and you will be aware of this.

The other matters to which you refer may not be central to my enquiry but I thank you for drawing them to my attention.

I have no powers in relation to investigations abroad, as you will know but have to rely on the evidence presented to me. I am sorry not to be more helpful…”

At some stage, between April and August 2004, the claimant alleges that she delivered three black files of evidence and numerous photographs. There is dispute about what she sent to the coroner. We shall, therefore, delay resolving the question as to precisely what was before the coroner until later.

On 6 August 2004 the coroner thanked the claimant for sending what he described as:-

“the full and detailed file relating to your son’s death and for going over them with my officers. Clearly they raised new questions which will have to be explored. This may take some time, and may require further police involvement.”

There was further correspondence in August and September relating to further material provided by the claimant. On 20 September 2004 the coroner wrote to the claimant saying:-

“I have studied the bundle of papers and translations for which I am grateful and thank you for pursuing your own enquiries so assiduously. There is no need to provide me with any more information at this stage. I have also had the opportunity for discussing matters face to face with Professor Jack Crane, whom you have involved independently in your enquiries, as an expert. I will not need to call him as a witness.”

We have quoted that letter because the reference to Professor Crane led to one of the primary allegations in the judicial review proceedings. The letter told the claimant that the inquest would resume on 27 September 2004. It is worth mentioning that amongst other unfounded allegations made by the claimant she alleged that she had not been told about the opening of the inquest. This was an allegation she had originally made but which she subsequently withdrew.

The inquest was resumed on 27 September. Since it is crucial to resolution of the judicial review proceedings we should record, at this stage, precisely what material was before the coroner at the inquest on 27 September 2004.

In her outline written submissions the claimant contended that the coroner had before him what she described as all the material set out in the first bundle of her documents between pages 193-257. Excluding the photographs, that appears to be the transcript of a telephone conversation with Dr Zivanovic, the Doctor who arrived on the scene on 27 January 2004; Dr Pesic, a technician who took the emergency call and spoke to Mr Nesic; the transcript of a telephone conversation with Mr Nesic in May 2004; a transcript of a telephone conversation with a laboratory technician, [Mr] Otovic, who apparently examined the syringe found in the flat; a transcript of a conversation with [?Mr] Branko of the Bond Detective Agency, employed in 2004 by the claimant; witness statements of Milan and Aleksander Stojsavljevic; a letter from a Dr Badat, dated 1 September 2004; a certificate from a flight academy; and a medical certificate.

In the bundles prepared for the hearing before this court under the heading “Material placed before the coroner which he did not formerly admit”, nine additional documents were referred to. Of the eighteen documents which in all are listed, there are eight documents which the claimant had never previously alleged were provided to the coroner. They were, an additional report of Mr Mitrovic, dated 27 January 2004; an additional report of Mr Hrmus of the same date; and the telephone conversations with Sivanovic and Pesic, Otovic Branko; the letter from Dr Badat, and the certificate.

The conduct of this case has involved a number of different legal advisors. For substantial periods, including the period between the inquest and Davis J's refusal of permission to proceed with a judicial review claim on 21 January 2005 the claimant’s own firm, Sutovic & Hartigan, acted on her behalf. Christian Khan were instructed in place of Sutovic & Hartigan shortly before Forbes J granted permission on certain of the claimant's grounds on 11 March 2005. By August 2005 Sutovic & Hartigan were again acting but in November 2005, when the claimant was suffering from ill health, Bhatt Murphy acted on her behalf. By the beginning of 2006 and possibly in late 2005 Sutovic & Hartigan were again acting on the claimant’s behalf and instructing and receiving reports from experts. That firm acted at the hearing before us. There were also changes of counsel. It may be that this vague and fluctuating identification of documents which the claimant asserts were placed before the coroner is in part due to the different legal advisers who have been involved, on her behalf, in this case. But it does not provide any firm foundation on the basis of which the court may make conclusions as to the coroner’s approach to the inquest.

The clearest evidence is that which is contained at paragraph 23 of the second witness statement, dated 28 April 2005, of the coroner. He there sets out five documents which he says were admitted in evidence in documentary form pursuant to Rule 37 of the Coroners Rules 1984. They were:-

“The statement of Mitrovic, dated 27 January 2004 (the defendant’s bundle A1, pages 134-135);

the Belgrade autopsy, dated 28 January 2004 (A1, pages 136-141);

English language transcripted telephone interview with housekeeper (A1, pages 142-161);

English language statement of Nesic taken by the private detectives engaged by the claimant (A1, pages 162-163);

report of the autopsy and subsequent toxicology reports with letter from Jenny Button (A1, pages 163a-169).

In addition there were nine original colour photographs of the claimant’s son, one taken in life and others which appear to be taken at or after the time of death (A2, pages 417-419).”

The coroner accepts that apart from the UK autopsy, all those documents were supplied to him by the claimant:-

“As part of three folders of material which she had collected, I selected the items which I considered would be most useful for my enquiry.”

The coroner, in his statement, admits that he selected items which he regarded as being most useful for his enquiry. Thus he accepts that the list of documents he admitted is not a complete list of that with which he was provided by the claimant. But it is not possible to identify what other documents the claimant supplied. One thing is clear, he was not provided with any expert report on the basis of which doubt could be cast upon the cause of death identified both by the autopsy in Belgrade and the autopsy in the United Kingdom.

A coroner is under a duty to hold an inquest where he is informed that the body of the deceased is within his district and there is reasonable cause to suspect that the deceased has inter alia died a sudden death of which the cause is unknown: Coroners Act, section 8(1)(b). Section 11(2) of the 1988 Act provides:-

Rule 36 of the Coroners Rules 1984 SI 1984 No 552 provides:-

In R v North Humberside and Scunthorpe Coroner, ex p Jamieson [1995] QB 1 Sir Thomas Bingham MR analysed the statutes and decisions and summarised them in 14 propositions. The first is that an inquest is a fact finding inquiry conducted by a Coroner, with or without a jury, to establish reliable answers to four important but limited factual questions. This case is concerned with the fourth of these, how the deceased came by his death. His Lordship stated that it was noteworthy that in both section 11(5)(b)(ii) of the Coroner's Act 1988 and Rule 36(1)(b) of the Coroner's Rules 1984 "how" is to be understood as meaning "by what means" and the task is not to ascertain how the deceased died but the more limited question "how…..the deceased came by his death", a question directed to the means by which he came to his death.

The House of Lords considered the impact of Article 2 of the European Convention on the duty under section 11(5)(b)(ii) and Rule 36(1)(b) in R(Middleton) v West Somerset Coroner [2004] 2 AC 182. It was held that where Article 2 applies, and only where Article 2 applies, the duty involves a duty not simply to ascertain "by what means" the deceased came by his death but also "in what circumstances": see paragraphs 35-37. Mr Lissack’s written submissions rely in part on Article 2 but at the hearing he accepted that the United Kingdom is not under an obligation under Article 2 of the European Convention to investigate the claimant's son's death. He was right to do so. The deceased died in Belgrade and none of the exceptional circumstances in which the United Kingdom might be under such an obligation apply: see R(Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1598 and Petition of Al Fayed [2004] Scot CS 66. Accordingly, the propositions set out in Jamieson's case apply to the present case without modification.

The sixth proposition in Ex p Jamieson is that "there can be no objection to a verdict which incorporates a brief, neutral, factual statement" provided the verdict is factual and expresses no judgment or opinion. The fourteenth proposition is that:-

"It is the duty of the Coroner…to ensure that the relevant facts are fully, fairly and fearlessly investigated. He is bound to recognise the acute public concern rightly aroused where deaths occur in custody. He must ensure that the relevant facts are exposed to public scrutiny, particularly if there is evidence of foul play, abuse or inhumanity. He fails in his duty if his investigation is superficial, slipshod or perfunctory. But the responsibility is his. He must set the bounds of the inquiry. He must rule on the procedure to be followed. His decisions, like those of any other judicial officer, must be respected unless and until they are varied or overruled."

In his written submissions Mr Lissack referred us to eight cases; Re Rapier [1988] 1 QB 26; Re Kelly (1997) 161 JP 417; Pearson v HM Coroner for Inner North London [2005] EWHC 833 (Admin); R v HM Coroner Lincoln ex p Hay 19 February 1987; Nicholls v HM Coroner for the City of Liverpool [2001] EWHC 922 (Admin); R v HM Coroner Coventry ex p O'Reilly Times Law Reports 3 April 1996; R v HM Coroner for Avon, ex p Bentley [2001] EWHC 170 (Admin); Parkin v HM Coroner for North Lincolnshire and Grimsby [2005] EWHC 660 (Admin). Mr Lissack accepted these cases provide only an imperfect fit with the present case and that that ultimately the sufficiency of the inquiry is a question of judicial feel but submitted that these all concerned inquests which went wider and deeper than the inquest in this case. In our view there is a significant and possibly fundamental distinction between those cases and the present case. All but one of them concerned deaths in custody or analogous scenarios which it is accepted give rise to particular concerns and thus need a deeper inquiry. The reason for this is that in such cases there is (see Middleton's case, paragraph 5) a need for an investigatory regime which will not only expose past violations of the state's substantive obligations under Article 2 of the European Convention, but also, within the bounds of what is practical, promote measures to prevent or minimise the risk of future violations.

Mr Lissack also submitted, relying on paragraph 37 of Lord Bingham's speech in Middleton's case, that even where Article 2 is not engaged, the Coroner is not precluded from making findings of fact. Lord Bingham stated that Rule 36(2) only precludes the expression of opinion on matters not comprised within Rule 36(1) and does not preclude conclusions of fact.

Our findings in paragraphs 5-30 above as to the documents and the pathological evidence are essential for the purposes of reaching a conclusion as to the application for judicial review. The essential submission advanced on the claimant’s behalf is that the inquest conducted on 27 September 2004 did not, in Sir Thomas Bingham MR’s words in ex p. Jamieson, “fully, fairly and fearlessly” investigate the relevant facts (see[1995] QB 1 at page 26).

The coroner, having selected the items to which I referred, heard evidence from the claimant but otherwise admitted the documents I have identified in evidence without hearing any further oral evidence. It is that approach which has led to the allegations made against him.

In contending that the conduct of the inquest was inadequate and insufficient the claimant, in outline written argument, referred to a number of features which she describes as curious and ambiguous. These, in combination lead, so it was argued, to the conclusion that the coroner’s inquiry was inadequate and insufficient. She refers to what she describes as obvious evidence of injury and blood in the photographs of her son’s body at what she says was “the supposed scene of death”; the evidence of blood on clothing, bedclothes and by the bed. She refers to the absence of injection marks on the body and what she describes as inconsistencies in different accounts and documents.

It is trite to observe that these allegations have to be considered in the light of the material before the coroner. But the important feature of these challenges is that by the time these challenges came to court for oral hearing, counsel on behalf of the claimant focussed on what he contended to be two essential defects in the conduct of the inquiry. He relied upon Section 11(2) of the Coroners Act 1988 and Rule 37 of the Coroners Rules 1984 which we have set out in paragraphs 31 and 32 of this judgment.

The coroner admits that he failed publicly to announce to the claimant that she may object to the admission of the documentary evidence. As the letter of claim dated 22 November 2004 made plain, the claimant had disputed the evidence of the pathologist, particularly Dr Crompton, in much of her correspondence between February and September 2004. That letter of claim identifies parts of six letters from the claimant. She was a solicitor and she had acquired some knowledge of the relevant law. But the failure of the coroner to make it clear, by a public announcement, that the claimant was entitled to object to the admission of the documentary evidence which he proposed to admit was a procedural error. The fact that witnesses referred to in the documentary evidence were not present at the resumed hearing could not possibly have justified the coroner reaching a conclusion that they were unable to give evidence “within a reasonable period” pursuant to Rule 37(2). Rule 37(3) would be meaningless if an objection could be overruled merely because witnesses were not present at the time the objection was made.

Nor can there be any doubt but that the claimant would have objected to the receipt in evidence of the documents admitted and insisted on at least some of the witnesses being called. It was quite apparent that the claimant was set upon demonstrating that her son had not died as a result of self-administered drug abuse but rather had been murdered. It is inconceivable that, had the opportunity presented itself, she would not have objected. It is, in our view, no answer to the procedural error to say that she had not previously objected. The Rules required her to be given the opportunity to object at the time and, since there is no evidence to show that the witnesses could not have become available within a reasonable period, that objection should have led to further oral evidence being heard.

But that is not the end of the case. As we have sought to emphasise, this question must be considered in the light of the material available at the time. The striking feature of that material is that there was no evidence whatever to suggest that the conclusions of two autopsies, one in Belgrade and one in the United Kingdom, were wrong. In her outline written argument the claimant goes so far as to submit:-

“By this stage, as well as having sought to commission an independent report of Professor Crane, the Claimant had commissioned a forensic report from a Mr Fordy, a former Detective Superintendent, further forensic analysis of the clothing and blood stains by a Terence Merston, forensic photographic analysis by a Mr Canning, a forensic photographer, as well as forensic blood pattern expert evidence, and the evidence of a forensic scene examiner (Allan Bayle). The Defendant was, the Claimant says, aware of all of this. The Claimant also says that she informed the Defendant’s officers that she would if need be secure the attendance of witnesses from Serbia.”

Whilst it should be recorded that counsel who set their name to this document had only recently been instructed and, therefore, cannot be blamed, this submission is misleading. It should not have been made. None of the material which subsequently emerged, of which the named experts were the source, was available. Nor could the defendant have been aware of any of it. Mr Fordy had been instructed shortly before the inquest on 2 September 2004 but he did not prepare his report until 28 November 2004. He wrote to the coroner on 23 September 2004 telling him of his interest, asking for permission to contact Dr Crompton and saying that the coroner should be aware of his “on-going enquiry”. All the other experts were only instructed after the inquest. Mr Bayle, on 25 October 2004, Mr Merston in November 2004 and Mr Canning on 1 September 2005, almost a full year after the inquest. The submission is without foundation.

The coroner says that he had to make a decision on the evidence available. He says he had no reason to suppose that he would ever obtain any further useful information (see paragraph 25 of his second statement).

Faced with the evidence from both autopsies of the absence of either external or internal injury we do not believe that the error of the coroner in not complying with rule 37 affected the outcome of the inquest at that time. Had objection been taken to the admission of the documentary evidence it would have had to be related to the witnesses to which that documentary evidence referred. But none of those witnesses could, as it seems to us, have affected the observations and conclusions of the pathologist. The witness, Nesic, did not speak of any violence and merely confirmed that the claimant’s son was abusing drugs. The housekeeper’s evidence, coupled with the police photographs, did suggest violence. But that evidence, at that time, has to be viewed in the context of what was seen both externally and internally by the pathologist. Although the claimant does not appear to have appreciated this, the Belgrade autopsy did refer to injection marks. There was, thus, no mystery engendered by evidence in relation to the syringe. In the context of the state of the evidence at that time, the verdict that death was caused by morphine poisoning was inevitable. Calling further oral evidence would have made no difference.

One feature of the verdict has made insufficient impact on the claimant. The verdict was an open verdict. In other words, the coroner was unable to reach a conclusion as to whether the morphine which killed the claimant’s son was self-administered or not. The claimant has, as it appears, persistently and in the face of the contents of the inquisition taken the view that the coroner reached a conclusion that the drug was self-injected. That was not his conclusion.

In the claimant’s outline written argument a new allegation was raised, namely that the coroner had spoken to a Professor Crane who had been instructed by the claimant before the hearing of the inquest on 27 September 2004. As a result of that conversation he was, so it was alleged, “heavily influenced” into not pursuing a full investigation but rather in executing what is described in that written argument as a “U turn”. The claimant seeks to derive the argument from the coroner’s response in a letter, dated 6 August 2004, that new questions would have to be explored and may require further police involvement. The Coroner's letter dated 20 September 2004 in which he states that he has had the opportunity of discussing matters with Professor Crane and will not need to call him as a witness is set out in paragraph 23 of our judgment. The Coroner's conversation with Professor Crane is said to demonstrate that he has failed to conduct a public open inquiry.

This allegation, which was not the subject matter of any amended claim within the judicial review proceedings is, again, without foundation. In his first witness statement in the Section 13 proceedings, the coroner disclosed that at a meeting of examiners of the Society of Apothecaries, Professor Crane told him that the claimant had instructed him to give an opinion. It is apparent that the coroner was unaware that Professor Crane had been instructed. The coroner says in that statement that Professor Crane told him that he had decided not to proceed with the matter or to provide a report but:-

“Was telling me as a matter of courtesy that on the evidence which he had seen he had not reached any concluded view. Given this, I concluded that Professor Crane could offer no evidence that could assist my inquiry.” (paragraph 57).

In the light of that evidence in a statement, dated 16 September 2005, the allegation should never have been made and certainly should never have been pursued. It is, as we have said, understandable that grief should cloud judgement. But it cannot justify unfounded accusations.

We conclude that in the light of the material available to the coroner at the time of the inquest, his procedural failure to comply with Rule 37 did not affect the outcome and does not by itself justify the quashing of the coroner’s verdict and a fresh inquest: see R v Wolverhampton Coroner, ex p McCurbin [1990] 1 WLR 719, 730 and R v Inner South London Coroner, ex p Douglas-Williams [1999] 1 All ER 344, 347, albeit in the context of misdirections to a Coroner's jury. See also R v Portsmouth Coroner, ex p Keane (1989) 153 JP 658, 669. Of course, that conclusion has to be seen in the light of the proceedings pursuant to Section 13 which are of greater importance. It is not possible to say whether the outcome would have been the same had those Section 13 proceedings not been pursued. But in the context of those proceedings, to which we shall turn, the judicial review proceedings do not afford the basis for any relief. Indeed, in the light of the Section 13 proceedings, it seems to us they should not have been pursued. They were, in the light of those proceedings, pointless.

Section 13 empowers this court on any application by or under the authority of the Attorney General to order another inquest to be held by the Coroner concerned or by the Coroner for another district in the same administrative area, and quash the inquisition on the inquest that has been held. Where an inquest has been held the High Court must be satisfied "that (whether by reason of fraud, rejection of evidence, irregularity of proceedings, insufficiency of inquiry, the discovery of new facts or evidence or otherwise) it is necessary or desirable in the interests of justice that another inquest should be held": section 13(1)(b) of the Coroner's Act 1988. In the present case Mr Lissack relied on irregularity of proceedings, the insufficiency of inquiry, and the discovery of new evidence in support of his application that the inquisition be quashed and another inquest be ordered.

The power contained in section 13(1)(b) stated in very broad terms. The necessity or desirability of another inquest may arise by reason of one of the listed matters "or otherwise". Notwithstanding the width of the statutory words, its exercise by courts shows that the factors of central importance are an assessment of the possibility (as opposed to the probability) of a different verdict, the number of shortcomings in the original inquest, and the need to investigate matters raised by new evidence which had not been investigated at the inquest: see Re Rapier [1988] 1 QB 26, 34-35, 37H-38A, 39 per Woolf LJ and Simon Brown J; R v HM Coroner, Lincoln, ex p Hay 19 February 1987; R v HM Coroner, Coventry, ex p O'Reilly Times Law Reports 3 April 1996; and Re v Assistant Deputy Coroner for the Northern District of London ex. p Bloom [2004] EWHC 3071 (Admin). Ex p Hay concerned disputed evidence that was before the original inquest, but the dispute in the evidence in Re Rapier arose as a result of evidence that came to light after the inquest. In Bloom’s case there was no criticism of the way the Coroner conducted the inquest but a report in the possession of the deceased's family which was critical of certain aspects of what the treating doctor did or did not do was not before the coroner and the treating doctor was not cross-examined on the basis of that report. The court thought that the verdict of natural causes might be changed: see paragraph 27.

In cases in which the court is satisfied that a different verdict is not possible or doubts that it would be, the fact that the deceased died in custody may be "a compelling additional factor" (R v West Sussex Coroner,ex p Homberg (1994) 158 JP 357, per Simon Brown LJ Transcript 26 January 1994, page 37) in concluding that a further inquest is necessary or desirable in the interests of justice. This is because of the need (see paragraph [37] above) in such cases for an investigatory regime which will not only expose past violations of obligations under Article 2 but also promote measures to prevent or minimise the risk of future violations. The lapse of time since the death is a factor that has generally been seen as a factor against ordering a further inquest (see ex p Homberg and Re Tabarn 20 January 1998 (Div Court), per Simon Brown LJ Transcript page 10) but this is not always so: see Nicholls v HM Coroner for the City of Liverpool [2001] EWHC (Admin) 922, paragraphs 49-50, 59 per Sullivan J. In R v West Sussex Coroner ex p Edwards [1991] 156 JP 186, 190 it was stated that a new inquest may be ordered even if there is a high probability that the verdict would be the same.

For the reasons we have given in relation to the claim for judicial review, we reject the submission that in the light of the information available at the time of the inquest the Coroner's inquiry was insufficient. Our concern has been with the impact of the evidence which has been produced since the inquest.

There is now no dispute but that the investigation conducted in Belgrade immediately after the death of the claimant’s son was inadequate. The best source of identifying those inadequacies is a Serbian Ministry of Interior Affairs report dated 11 April 2005. The claimant failed to disclose this report, of which she had possession, to the coroner. Nor was it exhibited to any of her witness statements or disclosed by her to the court. The coroner was compelled, once he learnt of the report, to obtain a copy through the Foreign and Commonwealth Office.

We did not take time, during the course of the hearing, to seek an explanation from the claimant. We note that nowhere did she seek to respond to the complaint made by the coroner as to its non-disclosure. The report is of significance because it deals with many of the criticisms made by the claimant as to the examination of the scene, continuity and inconsistencies. It is of particular importance because it ought to have formed the foundation of the reports of experts instructed by the claimant. On the contrary, it does not seem to have been shown to those experts. It powerfully demonstrates the inadequacies of the original investigation and the difficulties, if not impossibility of there ever being a sound foundation for future investigation. In short, there is no adequate record of how the exhibits, found at the scene of death, were dealt with, a complete absence of any record of continuity or of any protection of the scene of death. The report shows that in the hours before his death, Petar Sutovic was in his flat and ate some Chinese food. His fellow tenant, Zoki Cupac, when he saw Petar eating the food, got the impression when he saw Petar eating the food, that Petar did not even notice him. He told Cupac and Nesic that he was going to his room to call his mother and did not want to be disturbed.

Nesic was, apparently, reluctant to enter Petar’s room because there was an agreement between the occupants of the apartment that they should not enter each other’s room. Petar’s dog began to vomit at about midnight on 27 January 2004. But it appears that Nesic did not go into the room until later. When he did, he found Petar on the bed, on his left side with his legs touching the floor. His face was on the pillow and he saw traces of a bloody substance. Petar held a syringe with a needle in his right hand. Nesic noted a belt by the bed and on the sideboard was a burnt spoon with, so far as he could remember, some foil. He called Cupac, who came to the door, and Cupac told Nesic to call the ambulance. The ambulance call is timed at 2.42am. Dr Zivanovic, with an emergency medical team, arrived at the apartment at 2.56am and finished what is described as “the intervention” at 3.04am. Dr Zivanovic believed that the syringe was in Petar’s left hand but was not sure. Apparently, to avoid a risk of pricking himself, the doctor kicked the syringe to the floor and it ended up under the bed. He started to examine the body by turning it on the back. He cleansed the face from vomit and bloody fluid which leaked from the nose. He ascertained that the young man was dead and asked that the police be notified.

Apparently the doctor and the emergency team did not meet the crime investigation team and after a year the doctor was unable to recall what else he had seen besides the syringe and belt.

A junior sergeant, Mitrovic, and an on duty crime technician, Sergeant Rmus, went to the flat, arriving at 3.35am. An investigating judge was contacted and ordered the apartment to be sealed off. The crime technician, Sergeant Rmus, took seven photographs but did not take a close up photograph of the left arm where punctures were subsequently seen nor of the syringe or belt. Neither Mitrovic nor Rmus noticed stains of drops resembling blood on what is described as “the left lateral wall from the entrance to the room”. They were neither described in the reports nor in the photographs.

Mitrovic wrote that the deceased was wearing a white athletic shirt with navy blue jeans and his feet were clad in socks and high shoes. These are shown in the photographs.

Mitrovic had written in his report that when the police arrived at the scene the syringe and needle were stuck in the left arm and the needle slipped out during attempts at first aid. The report records that this was not true, since the police officers arrived only after the doctor had left. By then he had kicked the syringe away as a prelude to his examination and had pronounced death. Apparently this misleading information was as a result of one police officer passing on information from another.

The crime technician found, on the left side of the bed, one metal spoon, three needles for a syringe, traces of brown powder and two halves of white tablets. The brown powder was found by an expert court witness, Dodevic, to contain heroin in a mixture with caffeine and paracetamol. The two halves of tablets showed the presence of substances on the list of opiate drugs.

The report notes that the police force did not notice a single detail in the room to suggest tampering. But they did not investigate other rooms. It appears that the crime technician, Rmus, did not investigate the bedding nor, for fear of becoming infected with AIDS or hepatitis, did he take the syringe needles.

The report also deals with the arrest for burglary of another occupant of the building. I mention that only because at some stage that occupant, Opalic, provided further fuel for the claimant’s suspicions.

The report further notes that Petar had, unfortunately, been repeatedly treated for abuse of opiates. On arrival in Belgrade from London he went to the Institute of Drug Addictions where therapy was prescribed. But, apparently, he did not follow that therapy. Changes in his behaviour were noted in December 2003 following his return from London. Friends noticed he became increasingly anxious and started to withdraw into himself. A Belgrade doctor asked him to be tested for drugs, at the request of his mother, but he refused. A report was prepared on order of the investigating judge, dated 23 February 2005, at which medical examiners recorded that the high levels of morphine in urine suggested that Petar had taken opiates for a while. It also concluded that there were no medical grounds to suggest that opiates had been injected into his vein against his will. The report notes that further forensic and medical experts from the United Kingdom, commissioned by the claimant, are incomplete and, so the report says, mainly based on:-

“on suspicion and assumptions resulting from observations and analyses of photographs taken in the apartment of the deceased at different times by different persons, and other records available to them.”

In response to the complaint of the claimant, the report did conclude that there were seven complaints which should be upheld:-

“1)

The punctures in the arm of the deceased were not photographed close up;

2)

The syringe with the needle attached taken from under the bed was not photographed;

3)

The belt lying on the floor by the bed was not photographed;

4)

Several spotty but stains suggestive of blood on the left lateral wall were neither noticed nor photographed nor sampled;

5)

The report of the junior sergeant recording that a needle was found stuck into the left arm of the deceased was incorrect;

6)

The crime technician, Rmus, failed to record that the deceased had a white athletic shirt on; and

7)

Items were not taken for analysis from either the deceased’s room or other rooms such as the burnt metal spoon, bottles of unidentified white powder and cigarette butts.”

The report concludes that there were shortcomings in the operation of members of the police department.

The significance of this report is that much of the material which, not only prompted the claimant’s suspicions, but founded the evidence upon which experts, instructed by her, relied is based on an incomplete and inadequate evidential foundation. One thing is, however, clear. The site of the deceased’s death was not kept secure. It is apparent from the recorded conversation with the housekeeper that the housekeeper was searching the room. It was further disturbed by the private investigators initially instructed by the claimant. Clothing, subsequently relied upon by experts instructed by the claimant to show violence, was in fact selected by a relative of the deceased and the housekeeper who dressed the body before its transport to the United Kingdom (see the third page of the letter written by the claimant dated 20 August 2004). I mention these matters at the outset because, in reviewing the expert evidence on which the claimant relies in support of her Section 13 appeal, these inadequate evidential foundations must be constantly borne in mind. Since the claimant has been unable to produce any letters or other evidence of the instructions she gave those experts, despite my ruling before the case began, it is not possible for this court to know on what basis these experts reported. The least which can be said is that they either did not know or overlooked the difficulties, if not impossibility of ensuring that exhibits to which they were referred genuinely cast light upon the circumstances surrounding the death and its cause. To take but one example; a number of the experts rely upon the bloody condition of the clothing in which the body was seen when it arrived in the United Kingdom. But this was clothing in which the deceased was dressed after his death, not the clothing in which he was found.

The evidence on which the claimant now relies, apart from the material showing the inadequacy of the original investigation, falls into two categories both of which, so it is argued, suggest that the deceased was beaten at or around the time of his death. If that is shown, so it is argued, that casts doubt on the reliability of the cause of death, provides the basis for a verdict of unlawful killing and in any event demonstrates circumstances far removed from the coroner’s brief account of the circumstances in which the claimant’s son died. There are now eight expert reports upon which the claimant relies. Some of them proved to be unhelpful and to contain comments which should never have been made by an expert, seeking to assist the court. But others provide the basis for the contention that the claimant was beaten violently at around the time of his death. The two categories into which they fall relate to the facial injuries and blood found at the scene of death.

We shall turn first to the evidence of facial injury. Dr Milosavljevic, the head of the Institute of Forensic Medicine at the Military Medical Academy, reports on the basis of the photographs taken of the deceased at the time of his death compared with those whilst he was alive. He records bruising and contusions around the left eye and of the left side of the area above the eye together with a linear scratch on the eyelid. He records visible distortion on the middle right side of the nasal bone. He records traces of dried blood on the area and concludes that the deceased was punched with a fist. He says that it is not evidence of a discharge of oedema fluid shortly before death. He records injuries consistent with pressure marks on the right and left arm. He further refers to traces of blood on the bed linen.

This conclusion of physical violence to the face and to the forearm is, possibly, tainted by a later reference in the report analysing blood on the clothes in which the deceased was dressed on his return to the United Kingdom. Dr Milosavljevic refers to a penetrative wound on the chest or abdomen discharging blood from injured organs and blood vessels. He refers to a wound caused by a knife or another similar tool. He later refers to “the above penetrative wound (stab wound, or injury by a firearm)”.

There is no evidence whatever of a penetrative wound or injury caused by stabbing or by a firearm. It is not possible to conceive how this doctor came to that conclusion.

A later opinion, dated 26 March 2006, seeks to cast doubt on the toxicological evidence, but since it merely refers incorrectly to the absence of a signature on the analysis report and the fact that he could not find documents as to how the toxicological report was prepared, the later report appears to me to be of no importance. The report was dated 15 January 2006.

A report from a consultant in accident and emergency at University College London, Mr Gavalas, dated 12 January 2006, states, on the basis of the photographs, that:-

“There is unequivocal evidence of flattening of the nasal bridge and some deviation of the nose itself.”

He also refers to evidence of soft tissue swelling and reddening of the left eyelid and swelling of the upper lip area. He states that this is strong evidence of a significant facial trauma involving the nasal bridge and nasal skeleton suggesting some direct violence very shortly before he met his death.

These two reports, which were not before the coroner, are in conflict with expert evidence obtained on behalf of the coroner. It is pointed out that the evidence relating to violence at the time of death does not come from pathologists. The evidence obtained on behalf of the coroner suggests that the apparent signs of injury are due to post-mortem distribution of lividity. That the apparent signs of injury are due to lividity is confirmed, so it is argued, by the fact that the claimant herself remarked, to the housekeeper, that she saw no signs of injury.

Dr Shepherd, whose report was obtained on behalf of the coroner, is a forensic pathologist. Looking at the photographs, he saw no marks on the face to suggest the presence of injuries or any evidence to support the hypothesis of injury to the face. He attributes the apparent injury to:-

“The natural post-mortem process of hypostasis (otherwise called lividity).”

He says that is common. The apparent soiling is due to leakage of fluids from the mouth and nose either at the time of death or afterwards. He says this is very common, particularly when a deceased is lying face down. He says that it is not uncommon for a nose to appear distorted when someone has been lying face down after death. If there had been a blow to the nose or the nose had been broken he would have expected a significant quantity of bright red fresh blood at the scene.

As a pathologist, he supports the evidence of other experts obtained by the coroner who were not themselves pathologists. Professor Redmond, who is also a consultant in accident and emergency medicine, attributes the apparent injuries to lividity and does not accept that the photographs provide reasonable evidence of a blow to the face. All the appearances can be explained by post-mortem distribution of lividity.

Professor Henry, a consultant physician who gives evidence as to the toxicological findings, supports the cause of death as being either heroin or morphine, pointing out that the level of morphine as measured is consistent with reported fatalities. He says, somewhat dispiritingly:-

“In reporting on cases of drug misuse deaths, I have often encountered many features that do not add up; witness accounts differ and pieces of evidence are often inconsistent. However, in the present case, I can see no reason to suggest that Petar Sutovic did not die of opioid toxicity or that foul play played a part in his death.”

Before commenting further on the conflict between these experts as to whether the deceased suffered a violent attack at the time of his death, I must refer to other evidence dealing with apparent signs of blood on bed clothing in the apartment and on the deceased’s clothing. Much of this evidence is unhelpful and misleading.

Andrew Wade, a forensic scientist, distinguishes between clothing worn by the deceased as depicted in the police photographs and that worn by him on return of the body. Yet that distinction seems to have been ignored when Mr Wade set out his conclusions under the heading “Assessment of findings”. He refers to regularly shaped marks which “may well be associated with footwear patterns” on the back of a Champion vest and green “Kappa” jeans made by items wet with blood but also to similar signs on the back of the “Fred Perry” T-shirt. But he makes no reference to the fact that the Fred Perry T-shirt was not worn at the time of death.

In his next conclusion he refers to “evidence of force to the garments” by reference to the Fred Perry T-shirt and a vest underneath demonstrated by the fact that there was wet blood present and showing they were worn together. But he makes no reference to the fact that those items were worn on the deceased’s return to the United Kingdom and not at the time of death. He then says:-

“There was further evidence of force with the ripped stitching of the Champion vest and the blue sleeveless jacket.”

The Champion vest was worn at the time of death but in the body of the report he accepts the damage may have been done during the removal of clothing from the body. The blue sleeveless jacket is not illustrated and appears merely to have been an item found subsequently in the flat. The presence of blood on that jacket could not possibly support any conclusion as to violence at the time of death. The expert makes no reference to that obvious observation.

Mr Wade also refers to some correlation in the position of blood staining, clothes and the bedding but then refers to clothing in respect of which, so the evidence shows, the deceased was not wearing at the time of death.

Mr Wade’s report continues by pointing out that there is correlation between the staining on the inside of what he described as “the diesel jacket” and Fred Perry T-shirt. Such correlation would be inevitable since the deceased was wearing both items on his return to the United Kingdom. But Mr Wade continues:-

“One explanation could be that Petar Sutovic was lying face upwards in a pool of blood, clothed in the diesel jacket over the Kappa cardigan which in turn was over the Fred Perry shirt and vest. As the top layers of clothing were removed Petar was laid back in the pool of blood.”

There is, however, no evidence whatever that the deceased was wearing any of those items at the time of death. Moreover, it is absurd to suggest that he would have been clothed by his relative and the housekeeper with items of clothing drenched in his blood. The claimant has already revealed that a process of selection took place. Mr Wade does not even suggest that that might be an explanation. This is a report, interpretation of which is inevitably hampered by the absence of any material to show what was laid before him by way of instructions, over which there are a number of significant question marks. In these circumstances we do not consider it to be a basis on which to order another inquest.

A lengthy report from Mr Canning also demonstrates the difficulties caused by this court not knowing with what information he was provided. He is an expert forensic photographer. He seems prepared to reach conclusions as to which he has no expertise. For example, he asks the question:-

“Could it be possible that Petar sustained a further serious assault following the police scene photographs, which could explain the heavily blood stained clothing, which was subsequently photographed?”

This suggestion is clearly false considering that there is no evidence of heavily blood stained clothing at the scene. This expert’s detailed comments on the photography does not, in my view, assist. Nor does he seem to have been told that the jeans in which Petar’s body was clothed after death were not the same jeans as those in which he was found at the time of death.

Another forensic scene examiner seems to have laboured under similar difficulties. Mr Bayle was a fingerprint officer and an expert in forensic scene examination. His conclusion that the scene had been tampered with and:-

“made to look like a drugs overdose.”

reveals that he was not told that the body had been moved or what happened when paramedics, the doctor and subsequently the police arrived. He comments that a video shows that items had been transplanted. But that is of no relevance once it is appreciated that the private investigators, retained by the claimant, tampered with the scene. Clearly he had never been shown the Ministry of Interior report, dated 25 April 2005. His report is of no value.

The evidence of Professor Jamieson, Director of the Forensic Institute, confirms the poor handling of evidence, as was apparent from the Ministry of Interior report, had it only been disclosed by the claimant. Professor Jamieson’s comments on the absence of 6-MAM do not, in the light of Dr Button’s report and correspondence, take the matter further. A similar comment may be made in relation to Professor Forest’s report, dated 15 February 2005. His experience in toxicology teaches that there are those with morphine at a same or even higher level than that found in the deceased, who have survived. He says:-

“The results in the relevant case could, for example, compatible with Mr Sutovic being intoxicated at the time of death with death actually being caused by smothering. Other explanations are also possible, for example that he was a regular user of high dose morphine for therapeutic purposes and his death is due to an unrelated case (sic).”

There is no basis for his speculation that the deceased was killed by smothering nor that the presence of a high dose of morphine was because it had been given for therapeutic purposes. This again seems to be the result of a failure properly to instruct the expert. Apart from such a failure it is impossible to understand why this expert should indulge in such speculation. It can only have served to aggravate the claimant’s suspicions.

The report from another forensic examiner, Terence Merston, dated 25 January 2005, is of importance in identifying the 32 blood spots on a wall, which he photographed. They started approximately 5’10” up from the floor. He points out, rightly, that that blood was overlooked. No one can say when it appeared there. Mr Boots, a forensic scientist, of Forensic Science Service Ltd., instructed by the coroner, points out that there are other explanations for the blood, such as a cough or sneeze, and that the presence of that blood is not specific evidence to indicate a site of assault but he agrees that it remains a possibility. Mr Merston puts it higher and speaks of serious injuries to the nose and left side of the face. He concludes that the deceased had been seriously assaulted and goes so far to say that:-

“In all probability unlawfully killed.”

He also makes comments as to what the deceased was wearing at the time of his death which have been falsified by what has been learnt during the course of the Ministry of Interior investigation subsequently. In particular, he records Mr Mitrovic’s evidence that he thought the deceased was naked from the waist up. That does not now appear correct.

Another forensic scientist, Alison Dubery, has examined a sample of checked fabric from the bedding in the deceased’s bedroom. She says that the staining appears to be the result of contact with a wet bloodstained surface. But there was no characteristic smell of vomit although the smell may have dissipated. Mr Boots comments that the staining appears to be extensive and is more likely to be due to the fact that the blood has been diluted with water. Mr Boot also comments that it appears that the deceased’s face was white and the shape may be due to an oxygen mask being placed on his face. He refers also to blood staining on the deceased’s stomach.

Finally, Dr Shepherd, the pathologist instructed by the coroner, states that it is surprising that Dr Crompton’s post-mortem examination within the United Kingdom did not reveal any signs of injection. He considers that the report is far less detailed following the post-mortem examination in Serbia and that the Serbian post mortem described marks on the left elbow as "circular openings…continuing into the subcutaneous soft tissue…some….covered with a spotty brown crust". In his view this and the marks identified in the photographs "have the hallmarks of intravenous injection sites".

Dr Shepherd concludes:-

“that morphine may have been the sole cause of death cannot be denied but neither can the suggestion that it was merely an incidental finding in a death caused by some other factor.”

He concludes that because there is no evidence to prefer any various possible causes of death, including arrhythmia and the presence of a raised blood glucose associated with diabetes, the cause of death would be best expressed as “unascertained”. He says he has seen no evidence to suggest that trauma played any part in the death.

Whilst we have had harsh comments to make about some of the expert evidence which seems merely to have raised, unfairly, the claimant’s expectations, there remains a substantial disagreement as to that which is shown by the photographs. Doctors Milosavljevic and Gavalas observed the signs of violence. Doctor Shepherd and Professor Redmond explain those signs as being because of lividity. It is not for this court to resolve those differences. Although, as was observed in Re Kelly [1996] 161 JP 417 "the court must make some assessment of the value of the proposed fresh evidence", as Simon Brown J, as he then was, stated in Re Rapier [1998] 1 QB 26 at 39 "in many cases it will be quite impossible for the reviewing court to form any sensible view upon whether the new evidence creates a probability or only a possibility that a different verdict would be arrived at upon a fresh inquisition”. In this case it is important to recall that, apart from a reference in the claimant’s evidence, as noted by the Coroner, to swelling of the nose in one of the photographs of the deceased, at the time of the first inquest no comment whatever was made on the appearance in the photographs or the presence of blood at the scene of death .

The coroner correctly takes a neutral stance, as he did in relation to the judicial review proceedings. His response in both the Section 13 proceedings and the judicial proceedings has been wholly proper. He has adopted an attitude of strict neutrality (see Brooke LJ in R (Davis ) v Birmingham Deputy Coroner [2004] 1 WLR 2739 at 2755). But it was contended, on his behalf, that the evidence does not show any likelihood of a different verdict and in his evidence the coroner states that it is his own clear view that no real prospect arises that a fresh inquest would produce a different verdict. In particular, the evidence falls far short of any possibility of establishing, to the required standard of proof, a finding of unlawful killing. It is that finding which the claimant seeks.

Whilst, on the state of the evidence at present, any other verdict than an open verdict may seem unlikely, we are persuaded that in the light of the evidence which has emerged since the coroner’s verdict, a fresh inquest should be ordered. It is clear that while whether new evidence will possibly lead to a different verdict is often critical and sometimes decisive (Re Rapier [1998] 1 QB 26 at 39, R(Mullholland) v HM Coroner for St Pancras [2003] EWHC 2612 (Admin) para 27) it is not inevitably conclusive: see Re Rapier, at 37-38, Re Tabarn 20 January 1998.

This is not a case to which Article 2 applies and it is therefore not a case in respect of which the Convention requires that the circumstances of the death be investigated in a way which would be appropriate should that Article be of application. Nevertheless, the prescribed form of inquisition includes a space, paragraph 3, in which "the time, place and circumstances at or in which the injury was sustained" are to be recorded. This section is for what is sometimes referred to as the "narrative verdict".

In the present case in the inquest verdict the coroner did record some circumstances under paragraph 3 and in particular that there was no evidence as to the exact circumstances surrounding the death. But it appears that there is evidence of at least some of the circumstances surrounding the death. Those circumstances have never been fully investigated and indeed could not be investigated, since that evidence had not yet emerged, at the time of the original verdict on 27 September 2004. The evidence includes the report of the Serbian Ministry of Interior Affairs dated 11 April 2005, the reports of Drs Milosavljevic and Gavalas as to the appearance of the deceased, and the presence of blood at the scene

If, after examination of the circumstances at a fresh inquest, it emerges that the deceased had been treated with violence at the time of his death, even if that only leads to another open verdict, that seems to us to be a conclusion very different from that which had already been reached. Even absent the requirements of Article 2 of the Convention, the function of an inquest is to seek out and record as many of the facts concerning the death as public interest requires. In the case of an open verdict the circumstances recorded under paragraph 3 may be of particular importance. The evidence which has now emerged may cast a very different light upon the circumstances of Petar Sutovic’s death. In those circumstances we would allow the application under Section 13 and order a fresh inquest before a different coroner.

We should emphasise that our conclusion is based on a very small amount of the material before us and despite the over-abundance of argument, evidence and expert reports. It will be for the coroner, conducting a full and fair fresh inquest, to sift that which is of use and that which is without foundation. The claimant’s grief deprived her of the ability to do so in prosecuting either the judicial review proceedings or the claim under section 13 of the 1988 Act. Many of her concerns are not legitimate and have been fuelled by experts' reports, some of which we consider are flawed for the reasons we have set out, in particular the apparent non-disclosure to those instructed by or on behalf of the claimant of the Serbian Ministry of Interior Affairs' report demonstrating the inadequacies of the original investigation and the fact that the scene of the death was not sealed. Notwithstanding this, it seems to us that the public interest requires that should be done, if only to allay the fears and suspicions which have already, possibly unnecessarily, been aroused.