Howlett v HM Coroner for the County of Devon & Anor

LORD JUSTICE MAURICE KAY: The death of Rachel Whitear was a modern tragedy which received a great deal of public attention. She was a talented young woman but sadly at the age of 21 she was found dead in a bed -sit in Exmouth in Devon. She was a heroin addict.

This case comes before the court as an appeal under section 13 of the Coroners Act arising in this way. Soon after Rachel's body had been found an inquest was opened but adjourned. In due course an inquest was held in Exmouth on 1 December 2000. The coroner was unable to establish the cause of death and he recorded an open verdict.

Rachel's family were dissatisfied with the conduct of the inquest and also with the investigation that had preceded it. In due course they applied for the investigation to be reopened. Later still they made a formal complaint, which triggered the involvement of the Police Complaints Authority, now the IPCC, and this led to the appointment of Chief Superintendent Howlett, who brings these proceedings, as the investigating officer. He carried out an extensive investigation and eventually applied to the Attorney General for permission to bring this application under section 13. In so applying he was strongly supported by Rachel's parents and indeed by the original investigating constabulary. The consent of the Attorney General was forthcoming and that is how the matter now comes before the court.

In the course of the hearing today we have heard submissions from Mr Fortt on behalf of the Chief Superintendent and by Miss Gerry, on behalf of the family. The coroner has chosen not to be represented at this hearing, although we do have witness statements that have been produced on behalf of the coroner. I should add that the coroner who conducted the original inquest, Mr Van Oppen, was then Her Majesty's Coroner for the County of Devon and at that time Dr Elizabeth Earland was his deputy. The position now is reversed. Mr Van Oppen has retired from the position of coroner, Dr Earland is now the coroner and therefore nominally the respondent to this application. Mr Van Oppen, however, continues to act as her deputy.

Rachel's body was found on the night of 12 May 2000 in the bed -sit at 4 Pound Street, Exmouth. It was soon moved to the mortuary at the Royal Devon and Exeter hospital. It was appropriately identified and the police were informed. On 18 May a pathology technician took a blood sample. On the same day the coroner opened the inquest, but adjourned it pending further enquiries. With the approval of the police he released the body to the family for burial.

In June 2000 a toxicology report on the blood sample taken from Rachel was received. It had been analysed by Dr Susan Patterson of the Imperial College of Science. It confirmed the presence of morphine in Rachel's blood, but at a low level. No further tests were carried out for morphine or any morphine related drug, but further toxicology tests were carried out on the blood sample for other drugs. No other drug was detected.

The low level of morphine found in the analysis of Dr Patterson was not suggestive of a quantity which would have been lethal, hence the inability of the coroner at the resumed inquest to specify a cause of death. It had been assumed from the outset that a drugs overdose had caused the death, not least because of Rachel's history, but also because when her body was found it was holding a syringe in the right hand and there were other drugs paraphenalia referable to heroin abuse nearby.

The inquest on 1 December 2000 considered evidence from 12 witnesses, all but one of whom had their evidence received by way of written statement. A single police officer gave oral evidence. We are told that the inquest commenced at about 4 o'clock on the Friday afternoon and was all over in about three -quarters of an hour.

No doubt anxious to ensure that Rachel had not died in vain her parents authorised the release of photographs of her dead body to the media. In due course a video called "Rachel's Story" was produced and released with the aim of its transmission in schools in order to discourage children from taking drugs.

The original photograph and its use in the media, together with the continuing use of the video as a public information communication, no doubt combined to create and sustain the extensive public interest in the circumstances of Rachel's death. In the material before the court today there are extracts from media reports, almost up to the present day, indicating that the matter remains one of public interest.

Chief Superintendent Howlett was appointed on 9 May 2002. His investigation has been extensive and Rachel's family have been entirely co -operative with it. This enabled a successful application to be made for the exhumation of Rachel's body. That occurred in 2004. It was followed by a post mortem conducted by Dr Nathaniel Cary, a well -known pathologist, and further expert advice was received from other appropriate people.

The matter now comes before this court as an application to quash the original inquest and to direct that a fresh inquest should be held pursuant to section 13. The material parts of section 13 provide as follows:

We have been helpfully directed to some of the recent authorities about the approach to section 13. In particular we have derived great assistance from the judgment of Moses LJ in Sutovic v HM Coroner for North London [2006] EWHC 1095 (Admin) and the earlier decision of this court in the case of Tabarn [1998] EWHC (Admin) 38. The following propositions of law are not in doubt: among the material considerations in a case under section 13 are the possibility, and not just the probability, of a different verdict; the number of shortcomings in the original inquest; the need to investigate matters raised by new evidence which had not been investigated at the original inquest; the lapse of time since death, which generally is a factor against ordering a fresh inquest, although not always; and the fact that a new inquest can be ordered, even where it appears to the court that there is a high probability that the original verdict would remain unchanged.

All those propositions are to be found in the judgment of Moses LJ, to which I have referred, and are substantially based on a synthesis of earlier authorities. In Tabarn Simon Brown LJ said at paragraph 50:

Against that legal background I now turn to the grounds of the present application. The first and primary ground is that the original inquest was vitiated by an insufficiency of inquiry. The insufficiency is said to relate to a failure to carry out reliable toxicology tests and a failure to carry out a post mortem. The evidence points to an early assumption, on the part of Dr Knowles, the pathologist advising the coroner, that a toxicology test would confirm that the cause of death was a drugs overdose. In the event, as I have related, the single toxicological analysis relevant to heroin produced a low reading insufficient to justify a finding that the cause of death was indeed a drugs overdose.

No further analysis was asked for at that time, at least regarding heroin. However, the material now before this court casts real doubt on the reliability of the original toxicological analysis. Its methodology was known as radioimmunoassay. The testing kit had been designed to measure morphine in urine rather than blood. It had been adapted by the particular laboratory for use with blood. However, the kit came with a warning from the manufacturer that it only provided a preliminary analytical test and that a more specific method should be used to obtain reliable results.

For my part I cannot understand why, in a case where the initial assumption was of a heroin overdose, but the toxicological analysis suggested otherwise, no further toxicological analysis was called for, especially in view of the warning of the potential unreliability of the test which had been deployed. This is all the more surprising when the coroner did call for further tests for the presence of other drugs. I accept Mr Fortt's submission that given the absence of any other obvious cause of death, the importance of an accurate toxicological analysis was, or should have been, obvious. There is at least cause for suspicion that a reason why a further test was not carried out may have been related to cost. I base that observation on a letter written by the coroner to Dr Knowles in September 2000 observing that the costs would be borne not by the Home Office but: "by you and I the ratepayers." If that is so it was not justifiable in the circumstances that prevailed at the time.

Once the coroner had denied himself the opportunity of receiving further and better toxicological material referable to heroin, it became inevitable that he would be unable to decide the cause of death, certainly if there was no post mortem. Had there been a post mortem, other causes, for example, natural causes or deliberately inflicted trauma, could have been more carefully considered and, if appropriate, excluded. It is difficult now to be certain as to why there was no post mortem. At the time of the inquest Dr Knowles suggested that it was because of the state of decomposition of the body, but a statement he made in July 2003 is difficult to reconcile with that. It is more suggestive of no post mortem having been asked for by the coroner.

As a post mortem was eventually carried out, almost four years later, the decomposition rationale is, in my judgment, unconvincing. The coroner has given, as a reason, the fact that as a drug addict Rachel may have posed an HIV risk and for that reason any post mortem would have had to have taken place in Bristol rather than in Devon "with attendant delays." If this was a reason it was, in my judgment, an unimpressive and unacceptable one. Moreover, it does not live easily with a letter written by the coroner to Dr Knowles in September 2000 in which the coroner appears to have assumed that there had been a post mortem.

I am entirely satisfied that the coroner erred by not ensuring that a further toxicological test and a post mortem were carried out before the release of the body for burial. To that extent, it seems to me that the ground of application based on insufficiency of inquiry is clearly made out.

The second ground advanced by Mr Fortt is based on new evidence. He submits that there are two categories of new evidence that justify a new inquest. The first category is of a factual nature and relates to the question whether someone else, in particular Rachel's boyfriend, was present when Rachel died and may have been complicit in the administration of heroin. I do not propose to refer to this evidence in detail. It emerged in the course of the Chief Superintendent's investigation. It is in part imprecise and no one is suggesting that it would be likely to support a verdict of unlawful killing. However, it has importance for another reason. It has received attention in the media and it has given rise to speculation about unlawful killing. For this reason it may merit consideration at a future inquest.

Of far greater significance, in my view, is the second category of new evidence to emerge from the Chief Superintendent's investigation. It is in the form of expert evidence from three highly reputable sources. I have already referred to Dr Cary, the pathologist, who conducted the post mortem following the exhumation. He has concluded that on a balance of probabilities the cause of death was opiate intoxication and that there was no evidence to suggest third party involvement in Rachel's death. Julie Evans, a chartered chemist, has carried out tests on samples taken from Rachel following the exhumation. She finds far higher levels of morphine in the blood than had been revealed by the test results that were available at the inquest in December 2000.

Professor Forrest, a forensic chemist, has considered the available material and concluded that the cause of death was heroin intoxication.

To put it at its lowest, all this important evidence could well result in a new inquest concluding that the cause of death was indeed heroin intoxication. That being the case, it seems to me it provides an additional reason for acceding to the Chief Superintendent's application because the new evidence is such as to surmount the tests in section 13 as explained in the authorities, to which I have referred.

The third ground the court is asked to consider is advanced not by Mr Fortt, but by Miss Gerry on behalf of Rachel's parents. In terms of its categorisation it is a complaint of irregularity of proceedings in the sense of section 13(1)(b). Mrs Holcroft, Rachel's mother, asserts in a witness statement made to the Attorney General, and exhibited in these proceedings, that in advance of the inquest she and her husband had requested sight of the statements of witnesses who were to be relied upon at the inquest, but that this was refused.

For his part the coroner does not accept that he ever received such a request. That is a dispute which, in proceedings such as these, we are in no position to resolve. However, a further complaint is advanced by Miss Gerry. It is that the family were disadvantaged at the inquest because the coroner did not disclose in advance the identity of the witnesses whose statements were to be deployed. Even at the outset of the hearing, he adopted a procedure whereby the statement of each witness was only disclosed and released as and when it was about to be read. Miss Gerry submits that this involved a breach of the Coroners Rules 1984, in particular, rule 37. The relevant part of rule 37, which is headed: "documentary evidence", provides as follows:

There is no doubt that Mr and Mrs Holcroft were interested parties under rule 20(2). They were unrepresented at the inquest. It is difficult to see how their right of objection under rule 37 could have been exercised on a reasonable and informed basis when the proceedings took the form that they did. The evidence as to the conduct of the hearing is less than comprehensive. I have already referred to the time of the day and the short duration. I do not feel able to express any conclusions about the style and manner of the coroner. However, I am persuaded that the way in which he dealt with the statements did not comply with rule 37 and that, at least to that extent, Mr and Mrs Holcroft have established an irregularity.

I propose to leave that aspect of the case on that somewhat minimalist basis. I suspect that on further investigation the matter could have been dealt with on a more comprehensive basis, not least having regard to what was said in R v HM Coroner for the District of Avon, ex -parte Bentley [2001] EWCH (Admin) 170, in particular, paragraphs 67 onwards. However, in view of the state of the evidence, and in view of the fact that the coroner is not represented today, I shall leave that part of the case there.

Before leaving Miss Gerry's submissions I should record that in her skeleton argument she also made a more controversial submission based on Article 2 of the European Convention on Human Rights and Fundamental Freedoms. Whether or not it is correct, I do not consider it to be self -evidently so and I decline to make any decision upon it in the absence of adversarial argument.

The final question in this case is whether, in the light of my conclusions on insufficiency of inquiry, new evidence and irregularity, it is now in the interests of justice to order a new inquest. I am in no doubt that that is what the interests of justice require. At the moment a tragic death, which has attracted and continues to attract extensive public interest, has received the most inconclusive findings from an inadequate inquest. To put it at its lowest, with the material now available it is at least possible that a new inquest would be able to determine the cause of death. It is also possible that something other than an open verdict would be reached. In my judgment this is a strong unopposed application brought by the Chief Superintendent with the support of the family. There is a clear public interest in ordering a new inquest. It is common ground, the coroner having expressed the same view, that if there is to be a new inquest we should order that it be held by a different coroner from another district in the same administrative area, pursuant to section 13(2)(a)(ii). I would allow the appeal and so direct.

MR JUSTICE BEAN: In the Particulars of Claim lodged on behalf of the claimant, Chief Superintendent Howlett, with the support of Rachel's family, counsel submits that "it is important for both the public's confidence in the conduct of inquests and the education of vulnerable young persons that there be a fresh inquest in this case". I accept that submission. I do not think it puts the case too high at all. For the reasons given by Maurice Kay LJ, with which I am in complete agreement, I too would allow this appeal.

LORD JUSTICE MAURICE KAY: Yes, Mr Fortt?

MR FORTT: There is the issue of costs.

LORD JUSTICE MAURICE KAY: We have here a letter, which you may have seen, that came to hand only this morning in which the solicitors acting for the coroner say that in the event that an application for costs is made, and they refer to the case of Turnbull, the court should adjourn the hearing to give the absent coroner the opportunity to attend to make representations.

MR FORTT: I have seen that particular letter. What I was proposing to do is to count in general terms what I think is the basis for a costs application in the case. If the court felt this case was so nowhere near the mark and that no such order should be canvassed at all, or contemplated, the matter remains there. If the court felt it would remain a possibility of a costs order being made, I propose the matter to be adjourned.

LORD JUSTICE MAURICE KAY: What is the general approach? Is there a test? It is not simply costs following the event. One is dealing with a statutory office holder, and let us see what you say.

MR FORTT: Paragraph 59 is the particular argument I am going to advance at this stage.

LORD JUSTICE MAURICE KAY: It is strict neutrality in the sense that I have myself presided over applications under section 13, where the coroner has in the end consented and the matter has been disposed of in that way. She did not do so in this case. She is not consenting, nor is she opposing. To that extent, neutrality may be an appropriate word. On the other hand, there are witness statements put in which are, to an extent, contentious.

MR FORTT: Yes, the submission in relation to both coroners' statements, as the current coroner and the deputy, is that none of them could probably be described as neutral in the sense of the content. What they do not seek to do is put before the court in a fashion which does not draw conclusions in an entirely one -sided way. One would anticipate a neutral statement would raise propositions or issues that the court ought to consider in the coroner's view.

That, in my submission, is not how Dr Earland's (?) statement could possibility be described in that she reaches conclusions, first of all, which appear fairly unsustainable in this case. Her reference, on a number of occasions, to the fact that the new evidence is not categoric, for instance, is so far wide of the test of what is required within the law, as she sets it out in her own witness statement. It cannot be said she is attempting to take a neutral stance at that stage.

If I can provide further assistance of how a proper analysis can be done, the case of Bentley is not a section 13 case but a judicial review case. That should be at tab 10 of the bundle. If my Lords turn to paragraph 97 where the issue of costs is being considered, Bentley similarly was a case in which the coroner purported to take a neutral stance, did not obtain representation at the hearing and submitted a witness statement in the manner that has been followed in the case. What is said on the issue of costs is as follows:

What I am suggesting is if the view is that we are into that sort of territory, then in the light of the authority, which I agree with, which has been referred to in the letter of the coroner, we simply apply for the issue of costs to be adjourned so that the coroner can have representations.

LORD JUSTICE MAURICE KAY: I have not looked at the authority referred to in the letter.

MR FORTT: I have not, although it seems confirmed that it is authority for the proposition.

MR JUSTICE BEAN: I have not read that; I have read Davies, which is Court of Appeal and subsequent to Bentley. It does not give an absolutely obvious answer, but you might say that even in the light of that, at any rate, the application warrants being considered with the observations of the coroner to assist us.

MR FORTT: Yes, it is the footnote, part of paragraph 59, paragraphs 47 and 49. What is clear in paragraph 49 in the judgment of Davies is that the protection from adverse costs arises where the coroner puts in a statement in the name of strict neutrality. That is the emphasis. I do concede it is not entirely clear, in my submission, that where there is not a strictly neutral statement by implication, the coroner leaves him or herself open to an application of this type.

LORD JUSTICE MAURICE KAY: Do you have a schedule of your costs?

MR FORTT: My Lord, no. The reason being in the light of the letter, particularly in view of yesterday, as I understand it, were the issue to be more seriously considered in my submission it will have to come back for the coroner to make representations on the issue, in any event, that there be a time when the issue whether there ought to be costs in the first place will properly be considered.

LORD JUSTICE MAURICE KAY: I must say I have no enthusiasm for a further hearing; not from any indolence on my part. It seems it would just generate more costs. Is there any reason why, if the matter for costs is not decided today, it should not be decided on written submissions, as often takes place in the Court of Appeal?

MR FORTT: The only hesitation is that I have not contemplated the authority relied upon. It would seem entirely acceptable if it saves cost and does give the coroner a full opportunity to respond to the arguments being raised. It is the right of a coroner to make representations. Whether that is done in writing or done before the court in my submission it matters not. I fully accept that is the most economical way of dealing with the matter.

LORD JUSTICE MAURICE KAY: Has Bentley been expressly drawn to the attention of the coroner on the question of costs?

MR FORTT: That would not have been. It would only be the reference to Davies made in my skeleton argument.

LORD JUSTICE MAURICE KAY: At the moment who is financing your case, the constabulary?

MR FORTT: Devon and Cornwall are funding the case. There is an issue of course, and I acknowledge this, in fact in both cases, both parties today, for the ultimate source is public funds.

LORD JUSTICE MAURICE KAY: Different public funds.

MR FORTT: Yes, as Davies acknowledges in part of the judgment. It is more budgetary issues that lead to such applications being made when they are made.

LORD JUSTICE MAURICE KAY: Miss Gerry, what do you want to say on the subject, if anything?

MISS GERRY: First of all, I make it clear that the family are funded by the police as well. They are funding both the claimant and the interested party. My instructions are to seek costs in the event that the application was successful. I would very much support the submissions that have been made by my learned friend and support the proposition that it is only cases where it is strict neutrality that the protection applies. Where there is a question as to whether or not the coroner has adopted a strict neutral stance, that protection no longer exists and therefore it may be liable to costs. For that reason, I would support an application that it could be done on the papers.

LORD JUSTICE MAURICE KAY: If it is appropriate to order costs, is there in relation to section 13 discouragement of ordering two lots of costs, as with judicial review, where interested parties rarely get their costs? You are no doubt going to say that only you could make the submissions in relation to the conduct of the hearing?

MISS GERRY: If it had been the case that there had been no additional representations made on behalf of the family, or none that could not have been properly made by the claimants, I would agree that would therefore be a consideration. I would say that in this case the family have been able to advance submissions that they would not have been able to advance had they not been represented and heard in a proceedings.

LORD JUSTICE MAURICE KAY: You have separate solicitors, do you not?

MISS GERRY: My Lord, yes. We have separate solicitors. The confirmation of funding has come very late in the day, which is one of the reasons why it was not something flagged up earlier in the skeleton argument, or in any other format. On that matter may I make a full apology for the lateness of representation. The listing for the hearing was only informed by telephone on 19 September.

LORD JUSTICE MAURICE KAY: That is true of all cases this week. For some reason listing did not realise they had the generous services of Bean J and myself this week.

What we are minded to do is direct that there be a transcript of the judgment and the discussion about costs and that it be produced expeditiously. The coroner should have seven days after receipt of the judgment to respond to the two applications for costs that have been made. He should do so in writing, copies to go to the court and of course to the parties. Each of you may respond to those submissions within a further seven days after that in writing.