Fraser v HM Coroner for North West Wales

On 25^th March 1994 Mrs Doreen Morris died in her bungalow in Wales. Her home had been burgled and then set on fire. Though Mrs Morris’s body was badly disfigured Dr Wayte the pathologist could say that she had died before the flames engulfed her. Beneath her was found a fork on whose tines was blood.

Her daughter is the applicant, Mrs Audrey Fraser, who seeks a fresh inquest having on 30^th September 2009 secured the necessary fiat from the Attorney General by her powers delegated to the Solicitor General. Mrs Fraser brings these statutory review proceedings under Section 13(1)(b) of the Coroners Act 1988 (“the CA 1988”).

Mrs Fraser explicitly seeks a new inquest for the sole purpose of modifying the relevant entry in the Register for cause of death from “not ascertained” to “unlawful killing”. She does not suggest that new evidence would be produced nor does she contemplate so far as I can see the return of any other verdict. It is not in issue that the only mechanism for achieving this is a new inquest.

The Coroner, now Mr Dewi Pritchard Jones, opposes her application contending that it is not open to him to hold a fresh inquest unless by this court ordered so to do, that the test for ordering one is whether it be in the public interest and that such test must be applied in a practical and realistic way.

An inquest was on 28^th March 1994 opened by the then HM Coroner for Anglesey Mr Emyr Ditton Jones, now deceased. On 24^th May 1994 he issued an interim certificate of the fact of death which in part read “….the precise cause of death cannot be ascertained”.

On 9^th June 1994 a clerk from Caernarfon Magistrates Court wrote advising the Coroner that Joseph Westbury had been charged with the murder of Mrs Morris. That same day the Coroner made a manuscript note recording that there was “no need to continue with the inquest except to hear medical evidence” and that the inquest would be adjourned and not resumed. He noted that the sole purpose of the inquest was to ascertain the medical cause of death if possible.

On 15^th July 1994 the inquest was resumed and the Coroner heard evidence from Dr Wayte the pathologist who was unable to give a precise medical cause of death. The inquest was then adjourned. On 16^th July 1994 in accordance with S16 CA 1988 the Coroner sent to the Registrar a certificate confirming the adjournment. The death was registered on 18^th July 1994, the cause of death shown as “not ascertained”.

In May 1995 Westbury stood trial and was acquitted. On 19^th October 1995 the Coroner certified that criminal proceedings had been instituted and concluded and that he had not resumed the inquest. At this point, in the contention of the current Coroner, he became functus officio.

Mrs Fraser takes issue with the decision of the Coroner not to resume, arguing that because notes in his hand exist dated 9^th June 1994 it must follow that he so decided before the outcome of the trial was known. If that be right it is not in issue that he fettered his discretion and by so doing fell into error.

The Coroners Act 1988 reads where relevant as follows:

Births and Deaths Registration Act 1953:

“23 Furnishing of information by coroner

(2A)Where an inquest into a death is adjourned under section 16 of the Coroners Act 1988 and the registrar receives from the coroner under subsection (4) of that section a certificate under his hand stating, so far as they have been ascertained at the date of the certificate, the particulars required to be registered concerning the death, the registrar shall in the prescribed form and manner register the death and the particulars.

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29 Correction of errors in registers

(1)

No alteration shall be made in any register of live–births, still–births or deaths except as authorised by this or any other Act.

(2)

Any clerical error which may from time to time be discovered in any such register may, in the prescribed manner and subject to the prescribed conditions, be corrected by any person authorised in that behalf by the Registrar General.

(3)

An error of fact or substance in any such register may be corrected by entry in the margin (without any alteration of the original entry) by the officer having the custody of the register.”

In this case S16(1) and (4) applied since the June 1994 letter from the magistrates’ court obliged the Coroner to adjourn the inquest and to send to the Registrar a certificate. Even if the Coroner had resumed an inquest, he would not have sent to the Registrar a certificate containing registration particulars after the inquest.

Mrs Fraser’s contention that the Register still wrongly records the death of Mrs Morris as “unascertained” the Coroner refutes as follows. The entry is accurate. The medical cause of death the pathologist cannot further refine. The Register need only show the medical cause of death and need not show any verdict as to the death. The Coroner argues that, dispositively, the effect of S16 is that the Register entry is bound to predate the decision whether or not to resume an inquest. It follows that to convene a fresh inquest would be to frustrate the statutory purpose, which is to avoid an inquest where a criminal trial has canvassed material evidence and ventilated substantive issues.

Mrs Fraser bases her contention that the Coroner had pre-determined the issue of resumption on the notes in his hand. The Coroner argues that without more, it is not possible confidently to establish what purpose triggered them. They are consistent with an aide memoire, and /or with an expectation, no more, that there would not be a resumption. In any event, assuming against himself that the notes do indicate a prejudgment, the Coroner submits that it does not follow that such would have been wrong, nor that the reverse, that is ordering a resumed inquest, would have been the appropriate course. Finally, he argues that were the inquest to have been resumed it would not have afforded to Mrs Fraser the epithet she seeks on the Register, since even were there to be returned a verdict of unlawful killing the Register would not, post-verdict, have been amended.

There is no criticism of the procedural path to entry on the Register nor of the decision to adjourn the inquest pending the trial. Upon this silence the Coroner relies as reinforcing his submission that once the decision to adjourn had been made the Coroner was obliged to send to the Registrar his certificate and the Registrar was obliged to register the death based upon it. The Register thus correctly and unassailably, so it is argued, reads “cause of death: not ascertained”.

The Register can in certain circumstances be amended. A clerical error can be corrected. An error of fact or substance can be corrected by a marginal note. A Coroner may correct an error if he is satisfied on oath or by a declaration and so certifies and the officer having custody of the register then makes a note in the margin. Here, there is no error of fact or substance within the Register, which is required only to show the cause of death. Most entries of the Register will only record the medical cause of death. In the case of Mrs Morris the evidence has not changed as to it since the pathologist can go no further than he did in 1994.

In 1993 the Registrar-General’s Form for coroners to supply after an inquest was altered so as to include in box 8 a heading “Verdict” but this was not a change triggered by statute. In Mrs Morris’s case, at the stage that the Coroner decided to adjourn, the Registrar was obliged to complete the statutory Form 13, which required the cause of death to be entered. It was “not ascertained” and, unless there were to be a margin note in the future or a fresh inquest were to be ordered by the Court, the Register is set in stone.

The trial before Scott Baker J and a jury included concessions by both the Crown and the defence that someone had murdered Mrs Morris. The remaining question for the jury was thus whether the Crown had made it sure that the murderer were Westbury. Mrs Fraser’s argument is that as a consequence the Coroner should have ensured the concession’s reflection in an inquest verdict of unlawful killing. Indeed she goes further and appears to suggest that the Register is not consistent with that concession.

The Coroner points to the inevitability, as a consequence of S16, that often post-trial an inquest will not be resumed, even when the trial has definitively concluded that the killing was unlawful. Post-trial the Coroner is obliged to make a resumption decision, one of a highly discretionary character involving consideration of whether resumption would be practical and serve an useful purpose: R v HMC for W London ex p Dallaglio [1994] 4 All ER 139. The Coroner poses rhetorically the question “What line of investigation is it said the Coroner failed post-trial to follow?” It is not suggested that there were issues appropriate for inquisition over and above those considered at trial.

In any event, the Coroner submits, when there is a S16 adjournment death is certain to be registered without a verdict returned and it is impossible for the Register to record one. It is impermissible to reason from this to the proposition that the Coroner is in error in that his inquiry is insufficient.

The test for ordering a fresh inquest is whether it is necessary or desirable in the interests of justice. The Coroner submits that such a hurdle cannot be overcome. First, there is no suggestion that a fresh inquest would receive fresh evidence or lead to any new conclusion on the facts. Indeed Mrs Fraser has been explicit: all she seeks is a substituted verdict which she argues is properly returnable by way of a compact and less than exhaustive fresh inquest. It is her case that nothing new would be uncovered as to her mother’s death. Both parties rely upon the murder trial. Mrs Fraser maintains that it disclosed the truth of the position which should find its way into the entry on the Register, the Coroner that it was a full exploration of the facts and of the most up-to-date science so that nothing more can or need be added. In particular he relies upon the inability of the pathologist to take his conclusion any further. The cause of death remains unascertained, just as the Register shows. Were fresh evidence to emerge then the Coroner accepts that a fresh inquest might be justified. This is, he submits, on what is currently known, unlikely.

Next, he contends that Mrs Fraser’s willingness to contemplate a restricted inquest, if as it appears to him that means a brief or purely formal process, is misguided. Witnesses as to fact and as to science would have to be called. The acquitted Westbury and a witness Queen would have to be called, since their evidence could not be described as “uncontroversial”: Coroners Rules 1984 R37. When called they might rely upon the privilege against self-incrimination: ibid, R22. The police might wish to give evidence. They might argue that their continuing investigation would be compromised by any new inquisition. The Coroner warns that the perception of a new inquest might be that its function was, notwithstanding his acquittal, to establish the guilt of Westbury, whereas an inquest is not designed to determine the fault of individuals: ibid, R42.

The Coroner also counsels against unwary confidence that a fresh inquest would guarantee a verdict of unlawful killing. A precondition for it is satisfaction to the criminal standard that there was a homicide. Given the pathologist’s unchanged conclusion and the absence of direct evidence of the circumstances of Mrs Morris’s death, there is a real risk of an open or a narrative verdict.

We have been referred to Harte (1987) 151 JP 819 when a fresh inquest was ordered which parties were agreed might properly be brief and perfunctory since its sole purpose was to rectify a defect in the Register. The entry was of a cause of death subsequent investigations revealed was both incomplete and potentially misleading. That is, the Coroner submits, far from the position here.

Mrs Fraser argues that the Coroner had clearly made up his mind by 9^th June 1994 as is plain from his manuscript entry “no need to continue with inquest except to hear medical evidence……..” She construes the Solicitor General’s grant of a fiat as agreeing that the decision not to resume is unreasonable but I am afraid she has read too much into the letter of 30^th September 2009 to Mrs Fraser from Mr Kevin McGinty. In it the Solicitor General is reported as concluding only that:

“there was a reasonable prospect of the court finding that the decision not to resume was unreasonable………”

I have some sympathy with Mrs Fraser’s desire to right what she sees as a wrong. She has over years pursued her quest with diligence and determination. She advanced her arguments before us with quiet dignity and an obvious desire that what she perceives as an obstacle to fairness should be removed. It is thus with human understanding that I am unable to find in her favour. The arguments advanced by the Coroner are compelling and I can see no route permitting the resolution Mrs Fraser seeks. Having considered the material before the Court, I am not satisfied, in the words of section 13(1)(b) of the 1988 Act, that it is necessary or desirable in the interests of justice that another inquest should be held. I would add this: I share the opinion of the Coroner that, were an inquest resumed, it is far from certain that the verdict of which Mrs Fraser is confident would certainly be returned. I would reject this application.

I agree.