Butler, R (on the application of) v HM Coroner for the Black Country District

The claimants, Stephen and Ian Butler are brothers and directors of Need a Skip Ltd (“the company”). On 11 September 2006 one of the company’s employees, Wayne Meylan, was killed when a Komatsu loader, driven by Roy Reid, another employee, backed over him at the Company’s West Bromwich premises while he was crouched in the yard connecting electrical wire to a pump to pump water out of a manhole. The claimants challenge decisions made by the defendant, Mr Robin Balmain, Her Majesty’s Coroner for the Black Country (“the coroner”), about the inquest into the death. It is common ground that the inquest is a “traditional” or “Jamieson” inquest and not an “Article 2” or “Middleton” inquest. A “traditional” or “Jamieson” inquest considers “by what means” the deceased came by his death. In an “Article 2” or “Middleton” inquest the issue is the accountability of state agents for a death occurring within their responsibility and a wider inquiry into the broad circumstances of the death may be required to satisfy Article 2 of the European Convention of Human Rights. (Footnote: ¹ )

The inquest was opened on 15 September 2006 and immediately adjourned pursuant to section 16 of the Coroners Act 1988 (“the 1988 Act”) because of investigations into the death by the police and the Health and Safety Executive (“the HSE”). In February 2009 the Crown Prosecution Service notified the coroner that it had decided not to charge anybody with manslaughter and, after considering the results of the police and HSE investigations, he began to make arrangements for the renewed hearing which was to start on 22 June.

The claimants challenge the coroner’s decisions about the evidence that was to be disclosed to the claimants and the scope of the evidence to be called and what can properly be called in a Jamieson inquest, and the coroner’s rejection of their application for an adjournment. They also submit that there is apparent bias on his part. Underlying the rival submissions by the parties is the question of whether the scope of inquiry in a Jamieson inquest is necessarily narrower than in a Middleton inquest and the circumstances in which matters such as system and methods of work and training may be explored.

The coroner decided that the evidence of two police officers who interviewed the claimants and the driver of the loader under caution in respect of a possible offence of manslaughter and the evidence of Mr Chater of Messrs Atkins, who prepared a report for the HSE, and of Mr Hitchcott, a HSE Inspector, should be adduced. This evidence was all largely concerned with the company’s previous dealings with the HSE, defects in the loader, and whether there had been breaches of the Health and Safety Act and Regulations.

Mr Hitchcott’s report deals with visits made to the West Bromwich premises in September 2005 about other equipment, when he observed an untrained employee driving the Komatsu loader, and a visit after the incident in which Mr Meylan died when he took possession of documents including risk assessments and the company’s safety policies.

Mr Chater’s report concerns the company’s risk control measures for workplace transport activities at its premises. It is a review of “the practical measures and good practice which should have been in place to create a safe site before the accident”. It is based on a site visit, a report by the HSE in 2006 on the loader’s mechanical condition and safety devices fitted to it, and the police witness statements and other documentation: paragraphs 8.1 and 8.2.

Mr Chater stated (paragraph 8.3) that the company “had a health and safety policy in place which, although not ideal, had it been implemented would have reduced the likelihood of the accident taking place”. He also stated that “suitable and sufficient risk assessments had not been undertaken”. He considered (paragraph 8.7) that “the lack of induction training, the lack of risk assessments and the failure to promulgate the HS policy all contributed to a lack of safety culture throughout the company”. He stated (paragraph 8.8) that the directors of the company “did not fulfil their responsibility under the company’s health and safety policy”, and “did not communicate that policy to their employees in general or to their supervisory staff in particular” or ensure that it was communicated. He also stated (paragraph 8.9) that “although Need-a-Skip’s practices fell short of health and safety good practice, the company is certainly not unique in the industry, but there are examples of good practice to be found”. He considered (paragraph 8.10) the accident “should have been foreseeable and with appropriate management structures could have been avoided”.

The coroner wishes to adduce this evidence because he considers a verdict of unlawful killing might properly be left to the jury in this case. In determining what evidence should be adduced, he also took into account the possibilities of; (a) a narrative verdict recording the factual causes of the incident, and (b) a report by him to the relevant authorities under rule 43 of the Coroners Rules 1984 (1984) SI No. 552 (“the 1984 Rules”).

Mr Randall QC, on behalf of the claimants, challenged the coroner’s decisions on a number of grounds. The first was that in the circumstances of this case no verdict of unlawful killing could properly be left to the jury. He argued that the coroner fell into error in wishing to consider evidence, in particular that contained in the reports of the experts, about alleged breaches of Health and Safety Regulations in the five years prior to the incident. For unlawful killing on the basis of gross negligence manslaughter to be proved against the company or an individual director it had to be shown that an identified individual who was a director had by an act or omission of criminal negligence caused the death of the deceased. Moreover, the individual acts of employees cannot be aggregated into a composite act of gross negligence. Mr Randall accepted that it might have been possible for the coroner to reach the conclusions that he did, but argued that he erred in failing to direct himself as to these requirements. Initially he had submitted that, on the evidence before him, they could not be satisfied.

Mr Randall’s second submission is that the coroner erred in justifying the scope of the inquiry on the ground that it would enable the jury to consider returning a narrative verdict or because of the possible need to refer the matter to the relevant authorities under rule 43 of the 1984 Rules. He also submitted that the coroner wrongfully refused to disclose evidence and then to adjourn the inquest to enable the claimants and their legal representatives to deal with statements and evidence disclosed shortly before the hearing of the resumed inquest was to commence.

The complaint of non-disclosure relates to the initial non-disclosure of the majority of the witness statements, including the statements of all direct witnesses of the incident, and of the Appendices to Mr Chater’s report. This was on the ground that there was no obligation under the 1984 Rules to disclose them and because of what was referred to as an “embargo” by the HSE. Mr Chater considered thirty-six witness statements. Two of these were initially disclosed, and a further 10 were disclosed on 16 June.

These proceedings were launched in Leeds on 18 June, two working days before the start of the resumed inquest. An application for urgent interim relief restraining the coroner from convening the inquest was granted by Silber J. On 25 August the claimants applied to amend the grounds to include a complaint of apparent bias on the part of the coroner. The reasons for this were stated to be the coroner’s consultation with the HSE about disclosure of documents, and his intention, notwithstanding the decision of the Crown Prosecution Service, to consider with the jury a verdict of unlawful killing. The claimants argue that for these reasons the inquest should take place before a different coroner. On 31 August Langstaff J. granted permission and ordered the case to be transferred to Birmingham.

The interim relief granted by Silber J and the further disclosures that have been made by the coroner since the institution of these proceedings mean that the complaints about the refusal to adjourn and advance disclosure have been overtaken by events. The present hearing was mainly concerned with the scope of the evidence to be adduced from the witnesses and the allegation of apparent bias.

On behalf of the coroner, Mr Hoskins submitted that in a “Jamieson” inquest the coroner’s inquiry may go beyond what is needed for a narrow verdict of “by what means” the deceased came by his death. It can include the causes of the incident, including questions of system, training, methods of work, and safety equipment if causally relevant. He submitted that it is for the coroner to decide whether a particular line of inquiry involves a chain of causation which is too remote to form a proper part of the investigation. In this case, the coroner identified the system of work as a potentially relevant causative factor in the death, and was entitled to explore that and to call expert evidence to help him and the jury to understand the system and the ways in which it may have departed from good practice. Mr Hoskins argued that the coroner’s judgment as to what may be causally relevant is not constrained by what verdicts may or may not be appropriate for the jury to consider after the evidence has been heard.

I have referred to the adjournment of the inquest pursuant to section 16 of the 1988 Act. After the decision that no manslaughter charges would be brought, the HSE continued to consider whether to bring a prosecution for Health and Safety offences. This did not, however, preclude the resumption of the inquest. Rule 32 of the 1984 Rules provides that, save for the homicide offences specified in section 16 and 17 of the 1988 Act, an inquest shall not be adjourned solely by reason of the consideration of or institution of criminal proceedings arising out of the death of the deceased. Prosecutions for breaches of Health and Safety Regulations are not so specified. In this case the only relevant specified offence was manslaughter.

Since, in the circumstances, notice of the deceased’s death had to be given to a Health and Safety Inspector, section 8(3)(c) of the 1988 Act required the inquest to be with a jury. A jury is also required where it appears to the coroner that “there is reason to suspect” that “the death occurred in circumstances the continuation or possible recurrence of which is prejudicial to the health and safety of the public”: section 8(3)(d) of the 1988 Act.

By section 11(2) of the 1988 Act the coroner is required to examine on oath “all persons who tender evidence as to the facts of the death and all persons having knowledge of those facts whom he considers it expedient to examine”. By rule 22 of the 1984 Rules, “no witness at an inquest shall be obliged to answer any question tending to incriminate himself”.

By section 11(5)(b) the inquisition “shall set out, so far as such particulars have been proved - … (ii) how, when and where the deceased came by his death”. Rule 36 of the 1984 Rules provides:

“(1)

The proceedings and evidence at an inquest shall be directed solely to ascertain the following matters, namely –

…

(b)

How, when and where the deceased came by his death;

…

(2)

Neither the coroner nor the jury shall express any opinion on any other matters.”

By Rule 20 of the 1984 Rules “any person who satisfies the coroner that he is within paragraph (2) shall be entitled to examine any witness at an inquest either in person or by an authorised advocate…”. Those within rule 20(2) include:-

“(d)

any person whose act or omission or that of his servant or agent may in the opinion of the coroner have caused, or contributed to, the death of the deceased;

…

(f)

an inspector appointed by, or a representative of, an enforcing authority;

…

(g)

the chief officer of police; [and]

(h)

any other person who, in the opinion of the coroner, is a properly interested person.”

By rule 37 the coroner may admit documentary evidence “relevant to the purposes of the inquest” from any living person which in his opinion is unlikely to be disputed, unless a person who in the opinion of the coroner is within rule 20(2) objects to the documentary evidence being admitted. By rule 37(2) documentary evidence which has been objected to may be admitted if in the opinion of the coroner the maker of the document is unable to give oral evidence within a reasonable period.

By rule 42:

“no verdict shall be framed in such a way as to appear to determine any question of (a) criminal liability on the part of a named person, or (b) civil liability.”

In R v HM Coroner for North Humberside & Scunthorpe, ex p. Jamieson [1995] QB 1, the Court stated (at 24B-C) that “it is not the function of a coroner or his jury to determine, or appear to determine, any question of criminal or civil liability, to apportion guilt or attribute blame”. However, the Court also stated:

“It may be accepted that in case of conflict the statutory duty to ascertain how the deceased came by his death must prevail over the prohibition in rule 42. But the scope for conflict is small. Rule 42 applies, and applies only, to the verdict. Plainly the coroner and the jury may explore facts bearing on criminal and civil liability. But the verdict may not appear to determine any question of criminal liability on the part of a named person nor any question of civil liability” [whether anyone is named or not]: (conclusion (5) at 24E).

By rule 43(1)(b) and (c), where the evidence at an inquest “gives rise to a concern that circumstances creating risk of other deaths will occur, or will continue to exist, in the future” and the coroner is of the opinion that “action should be taken to prevent the occurrence or continuation of such circumstances, or to eliminate the risk of death” created by them, he may report the circumstances to a person who he believes may have power to take such action. Rule 43(2) provides that a report under rule 43 may not be made until all the evidence has been heard except where the coroner has adjourned the inquest under sections 16 or 17A of the 1988 Act and does not resume it.

I have referred to the evidence in the police interviews and the reports by Messrs Chater and Hitchcott. There is also evidence by Mr Swann, an HSE engineer, about the condition of the vehicle and what was not there or not working. In particular there were no rear view mirrors, and no reverse warning alarm, light or beacon. There are reports by Dr Acland, a Home Office pathologist, that the cause of death was crush injuries, and by Dr Braithwaite, a clinical scientist at the regional laboratory for toxicology, that the deceased had a relatively high concentration of unchanged morphine in his system and may have taken heroin.

Three witnesses saw all or part of the incident and its immediate aftermath. They were Mr Grant, a foreman, and Thomas Barrett and Christopher Probert, two lorry drivers who were waiting in the yard. Mr Grant had told the deceased that he should connect the wire to the pump and pump the water out of a manhole later in the afternoon for his own safety as at that time lorries were coming into the yard. Mr Barrett saw the loader reverse towards the deceased as he crouched by the drain and tried to warn the driver of the loader by sounding the horn of his lorry. Mr Probert said the deceased was crouching with his back towards the loader. He heard the deceased shout at Mr Barrett as he drove into the yard and he saw the loader reversing with no sound to signal that it was doing so. Mr Probert screamed and shouted because he could see what was going to happen.

The coroner, having considered the material received from the police and the HSE, on 3 April 2009, notified the claimants that he would be holding an inquest with a jury “into the circumstances surrounding the death”. He said he required them to give evidence, that their conduct “may be called into question”, and that he was prepared to treat them as interested persons with the right to question witnesses. He also stated that “an inquest is not an exercise in apportioning blame, it is designed simply to ascertain what has happened”. The coroner received an acknowledgment dated 8 April indicating that the company and the claimants intended to be represented. On 12 May his office sent the first claimant a list of the witnesses from the company who were required to attend, and the time they were required. By then the renewed inquest had been fixed to start on Monday 22 June.

The first letter from the claimants’ solicitors to the coroner’s office is dated 22 May, over six weeks after the coroner’s notice of 3 April and almost two weeks after provision of the list of witnesses required. The solicitors asked for sight of the documentation that would be produced at the inquest. The coroner replied in a letter dated 27 May enclosing a witness list and copies of the statements of some of the witnesses and Mr Chater’s report, but without the appendices to the report. He stated that he had not included the statements of seven witnesses (all the eye and site witnesses) “as there is a HSE embargo on them”. This letter also states that he proposed to read the evidence of Dr Acland, the pathologist, and Dr Braithwaite, the toxicologist, pursuant to rule 37 and asked the solicitors to let him know if there was an objection to this. He also stated that he would be calling two police officers to deal with the Police and Criminal Evidence Act (“PACE”) interviews .

The solicitors responded in a letter dated 5 June. They stated “we are unclear as to your reference to a ‘HSE embargo’”. They asked whether it was the coroner’s intention for the statements subject to this to be disclosed before the inquest and if so when. The letter states “if it is proposed that these will not be disclosed at all, could you please confirm reason for same with the supporting authority”. The letter asked for copies of the appendices to Mr Chater’s report and the statements referred to in one of them which had not been provided. They stated they were considering with counsel whether they wished to call Dr Acland and Dr Braithwaite in person. The coroner replied in a letter dated 10 June as follows:

“Your letter demonstrates that you do not understand the coronial process. It is for the coroner to decide the overall shape and scope of the inquest and to call relevant evidence. There is no requirement for “disclosure” as there would be in the case of civil litigation. Even now some of my fellow coroners do not reveal statements, exhibits etc prior to an inquest. My practice however, is to decide what might be relevant to the inquest and then make it available if it is not the subject of an embargo. In this case, the investigation has been done substantially by the Health and Safety Executive and they have a memorandum of understanding with the National Coroner’s Society, whereby coroners will not reveal documentation that is the subject of an embargo.

In this case I have decided what might be relevant and I have revealed things that are not the subject of an embargo and that, with respect, is an end to the matter.

I note the final sentence of your letter under reply. If you wish Dr Acland and the toxicologist to attend as opposed to their evidence being read, then you will need to put forward good reasons for that.”

This letter crossed with a further letter from the claimants’ solicitors also dated 10 June seeking the coroner’s ruling, guidance and assistance on a number of matters. This letter inter alia repeated the request for copies of the documents annexed to Mr Chater’s report and the witness statements referred to. As to the evidence the coroner proposed to call, the letter stated:

“(b)

Since [the claimants] were not present at the scene of the accident, the decision as to “how, when and where the deceased came by his death” (per rule 36) depends not on their evidence but on that of the eye witnesses whom we infer to be named in the list [in Mr Chater’s report]. It is clearly inappropriate to deny our lay clients sight of the material evidence.

(c)

In our view, the statements of these witnesses and the appended documents have been “tendered” to you as evidence within section 11(2) [of the 1988 Act] and rule 57 [of the 1984 Rules]. Their disclosure is in any event requisite under modern coronial practice and the HRA.

(d)

We need to have the opportunity to prepare this substantial inquest, which is only seven working days away. We therefore urgently need the documents mentioned. We should be very grateful if you could confirm as promptly as possible that copies of the relevant documents will be made available to us before the weekend. We do not wish to be put into a position where we will have to apply for an adjournment of the inquest for consideration of late-delivered documents.”

The letter also stated it was agreed that the evidence of Dr Acland could be read under rule 37 but not that the statement of the toxicologist could be.

The coroner responded in a letter dated 11 June. In response to the statement that it was inappropriate to deny the claimants sight of the material evidence he stated:-

“If it turns out that anything is said upon which you need to obtain some specific instructions, then you can make an application for a short adjournment to get those instructions and I will not be unsympathetic”.

The coroner also said that section 11(2) and rule 57 had nothing to do with the solicitors’ requests, and that the witness statements had not been put in evidence. He referred to his earlier letter giving the reasons why the statements had not been provided, and said that it followed “that the documents will not be made available”. A copy of the jury bundle was enclosed with the letter.

The solicitors’ response, dated 12 June, stated that they were worried that the coroner’s comment that their letter of 10 June demonstrated that they did not understand the coronial process in response to their request for the disclosure of evidence indicated to them that he “may not be dealing with this inquiry impartially”.

Paragraph 4 of their letter referred to the fact that disclosure had been provided for many years, although the 1984 Rules did not, in general, provide for it, and they asked whether the HSE had a veto on proper practice. In paragraph 5 they disagreed with the coroner’s statement that it was for him “to decide the overall shape and scope of the inquest”, and stated that subject to any adjustment to satisfy Article 2 “the scope of the inquest appears at rule 36” of the 1984 Rules.

Paragraph 8 of the letter stated that an examination of the scene and a comparison of the evidence of those who were there with the police evidence of the scene as found was required, but that no such police evidence, or evidence as to the state of awareness of the deceased who had taken heroin, was apparently to be adduced. Paragraphs 10(1) and (2) stated that, in the solicitors’ view, it was irrational to decide that police evidence of the scene was not relevant to the issues and to omit enquiry as to the physical or mental state of the deceased. Paragraph 10(3) stated that it was irrational to investigate the police interviews of the directors about the long-term health and safety history of the company and evidence as to largely unconnected health and safety breaches over a number of days, particularly given the decision of the Crown Prosecution Service not to prosecute.

The letter pointed out that the witness statements were taken by the police and reiterated the questions previously asked about the HSE “embargo” on them. At paragraph 14 it said that if the solicitors did not have the statements of the witnesses they would not be in a position to prepare themselves or to be able to investigate the truth of the oral testimony. The letter concluded by asking the coroner to consider “whether there is real or apparent bias here and to recuse [himself] from this case”.

The solicitors’ use of the language of “irrationality” in this letter reflects the terminology used by Lord Diplock in the GCHQ case [1985] AC 374 at 410 as an alternative to “Wednesbury unreasonableness”. Lord Diplock stated that the term “irrational” applies “to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it”. Its use has, however, been criticised by Lord Donaldson MR in R v Devon CC, ex p. G [1989] AC 573, 577 who stated that it is widely misunderstood as casting doubt on the mental capacity of the decision-maker: see also Wade & Forsyth’s Administrative Law, 10^th ed 296. Although as a legal term of art the term “irrational” carries no implication as to the state of mind of the individual concerned, its use in this letter may have contributed to the way matters developed in the correspondence.

The coroner replied in a letter dated 15 June. This stated:

“it is entirely a matter for the Coroner to decide what evidence to call and what evidence not to call. Rule 36 of the Coroners Rules does not limit the evidence the Coroner shall call”.

He also said that there was no police evidence of the scene. He acknowledged that he had overlooked the fact that the employees’ statements had been taken by the police, stated that “the embargo therefore does not apply”, and enclosed copies of their statements. He went on to say that before making accusations of irrationality (identified as concerning the evidence in the police interviews about the health and safety history of the company) the solicitors should consider whether he had made the decision. He had not. He said that substantial parts of the interviews were irrelevant but parts were “extremely pertinent” and he would “arrange for the jury to focus on them”.

On 16 June (apparently in a telephone conversation) the claimants’ solicitors sought an adjournment of the inquest which the coroner refused. The solicitors reiterated their request in a letter. They said that, if an adjournment was not granted, an urgent application would be made to the Administrative Court for injunctive relief. They said that an adjournment was necessary “to enable a fair hearing” and to enable them to pursue matters arising from the witness statements sent that morning and expert evidence principally relating to Mr Chater’s evidence. They also stated:

“[I]t is clear from your choice of evidence … which way the inquest is directed – to suggest that the directors caused the death. We do not suppose that the inferences to be made from the choice of evidence will be lost on the jury. The fact that we were, apparently, intended to face this battery of evidence without the opportunity to obtain expert evidence of our own is unfair. Whilst a coroner is entitled to pick the evidence he wishes to adduce, that choice must be exercised judicially and so as to produce a fair hearing (Article 6 HRA) [sic]. That means that he must not only simply choose the evidence presented by one “side”, he must give the other side an opportunity to submit to him evidence if they wish to do so that he can decide whether to call it. It is not reasonable for him simply to serve the “prosecution” evidence on those who are, on its basis, to be blamed for the death in his eyes. A fair procedure would involve the coroner in preliminary consultation with the parties to see what evidence could be made available.”

The letter also sought copies of the remaining appendices to Mr Chater’s report.

On 17 June the coroner confirmed he would not adjourn the inquest. He referred to two witnesses, one of whom was Mr Reid the driver of the loader, who it was thought might be out of the jurisdiction. He stated that if these witnesses did not attend he would read their statements pursuant to rule 37 and would warn the jury of the need for caution in respect of their evidence. The letter also said:

“it beggars belief that you seek to construe my choice of witnesses as leading to an inference that I believe that ‘the directors caused the death’. Nothing could be further from the truth.”

The coroner referred to the invitation in the solicitors’ letter dated 12 June (see [35]) that he recuse himself. He attributed this to the comment in his letter dated 10 June that the solicitors did not understand the coronial process. He stated that he would not recuse himself and that the solicitors’ letter dated 16 June “simply confirms that you do not understand the coronial process”. The letter also stated:

“No Inquisition may be framed in such a way as to apportion or to appear to apportion civil or criminal liability. However, that is not to say that the inquest should be half hearted or incomplete , nor should it shy away from investigating matters where something may have gone wrong (to use a neutral word). If in a road accident context, for example, a motor cyclist is killed when a motorist pulls out of a minor junction into a major road without looking and there is a collision, the circumstances of how that happened must be thoroughly investigated. It may give rise to perceptions of blame, it would be difficult not to. The proscription however, is simply on the wording of the inquisition which cannot suggest that somebody was at fault, either criminally or civilly. The matter is usually dealt with by a non-judgmental explanation of what happened ….”.

…

“If you felt that expert evidence was necessary, you had ample time to approach me on the point and indicate what expert evidence I should consider in addition to that which I have already decided to call. You have not done so. Even now you have not told me what expert evidence is appropriate. … [Y]our letter perpetuates your misconception that this is in some way some civil litigation trial. You refer to one side and the other side. There are no sides to an inquest, nor are there any parties to it. There are properly interested persons as I have indicated and I have quite properly chosen to treat your clients as being properly interested and to give them the rights which go with that status.”

The coroner stated he would confine the police witnesses to the parts of the PACE interviews that are relevant, and that one of the reasons for calling those witnesses is that the claimants are entitled to be warned that they can refuse to answer questions if the answer might incriminate them. He also stated:

“I do not know whether they will take advantage of that … [but if they do] then the jury will be deprived of knowing what your clients had to say on relevant matters when being questioned by the police. That would emasculate this enquiry and accordingly, I propose to see that the jury do get that information by virtue of the method I have described.”

While the coroner accepted that pre-inquest hearings can serve a valuable function in complex cases, he stated that “this is not a complex case”. After describing what appeared to have happened in the incident and accepting this was a matter for the jury, he stated that “it is appropriate to call evidence from those who witnessed [what happened], those in the company responsible for safety so that they can be asked about their systems and from the HSE concerning their investigations”. That, he stated, was in essence what he was doing. The claimants had ample time to make representations including a representation that there should be a pre-inquest hearing but had not done so until very late in the day and in the mistaken belief that they are parties to litigation. He also stated that it was “entirely incorrect to suggest that because I will be calling that evidence, that in some way demonstrates that I have taken sides” and that “nothing could be further from the truth”.

The letter concluded by considering the balance of convenience. In addition to the points made previously, it stated that it was in the interests of the next of kin and witnesses that the matter be dealt with promptly. It also stated that, given the number of inquests held every year, if this inquest was adjourned it was doubtful whether it would be re-listed before the end of 2009.

After the institution of these proceedings on 18 June, on 3 July the claimants’ solicitors wrote to the coroner proposing a settlement and making proposals as to the scope of the evidence to be adduced. The coroner’s Acknowledgment of Service was filed on 27 July. In relation to disclosure it stated that, while there was no obligation to disclose documents, the coroner had discretion to do so, and was willing to disclose the figures, photographs and index appended to Mr Chater’s report, and to seek the HSE’s permission to disclose its instructions to Mr Chater. By 29 July the HSE had given its consent and the coroner’s response to the letter of 3 July enclosed further documentation “as a matter of pragmatism” without acknowledging that there was any entitlement to disclosure.

On 19 August the HSE invited the claimants to attend an interview under caution in respect of suspected Health and Safety offences. The claimants’ application on 25 August (see [12]) to amend the grounds to include an allegation of apparent bias on the part of the coroner stated it was made inter alia because of “the Coroner’s continuing unparticularised communications with the HSE the prosecuting agency for Health and Safety offences”, “the arranging of the evidence to be called in the inquest in apparent accordance with the wishes or interests of the prosecuting authority”, and the “irrationality of putting to the jury a verdict of unlawful killing bearing in mind … the nature of the evidence”. On 27 August and 7 September the coroner disclosed further documents, in particular the witness statements read by Mr Chater and the other documents seen by him and Mr Hitchcott, again without conceding that there was any obligation to do so. These included statements by other employees favourable to the claimants who the coroner had expressed no intention of calling. His response to the claimants’ grounds and his witness statement were served on 8 September.

The coroner’s witness statement states that, after considering the evidence he received in February 2009, he decided that the inquest would need to explore not only the sequence of events leading to the death but also the cause or causes of the incident. He said:

“11.

… I considered the possible chain of causation and the verdicts which, on the information available to me at that time, might be left with the jury. In a case of this nature, where the deceased died in circumstances in which he was owed a relevant duty of care, I am obliged to consider whether an “Unlawful Killing” verdict, on the basis of gross negligence manslaughter, may have to be left to the jury. As a matter of law, gross negligence manslaughter has four elements, namely (i) that the Deceased was owed a duty of care by someone, (ii) that there was a breach of that duty, (iii) that the breach was a cause of the death, and (iv) that the breach was sufficiently serious as to be categorised as criminal. If there is evidence to suggest that the death may have been caused by a breach of a duty of care owed to the Deceased, then I am obliged to explore those matters in the evidence called at the inquest. It is only when all the evidence has been heard that I am able to decide whether an Unlawful Killing verdict should or should not be left to the jury for their consideration.”

The coroner states (statement, paragraph 12) that he is satisfied “that there is evidence… to suggest that the Deceased’s death may have been caused by a breach or breaches of the duty of care owed to him”. He refers to the evidence about the condition of the vehicle: see [23]. He also states that the evidence raises issues as to the safety regime in place at the premises, the management’s approach to health and safety and the adequacy of Mr Reid’s training as driver of the loader.

The coroner’s witness statement also explains why he included the four witnesses complained of by the claimants. He states (statement, paragraph 13) that, if the claimants and Mr Reid refused to answer relevant questions on the ground that to do so might incriminate them, he would call the police officers to elicit what of relevance was said in the interviews. He states that it seems likely that he will have to call an officer in relation to Mr Reid’s interview as he is apparently abroad and has not been traced.

The coroner stated that he did not intend to place Mr Hitchcott and Mr Chater’s statements before the jury. He intended to call Mr Hitchcott to produce the relevant risk assessments, the company’s safety policy and other such documents and might ask him about his conversation with the first claimant about traffic management on site and the fact that Mr Hitchcott had seen a young untrained employee driving the loader. This was because, if the jury were required to consider an unlawful killing verdict, the history could be of relevance to their assessment of the seriousness of any breach of duty which caused the death: statement, paragraph 14.

The coroner stated that he intended to ask Mr Chater to provide his expert views in response to specific questions as to what constitutes good and lawful practice in relation to work place transport activities, whether the company fell below the standard reasonably to be expected, and, if so, how serious was the breach, in the light of the factual evidence given at the inquest. He stated (statement, paragraph 15) that this evidence will assist him to decide “at the end of the evidence, whether an unlawful killing verdict ought to be left to the jury for their consideration. Secondly, it will be helpful to the jury if they do have to consider an unlawful killing verdict; their task would be very difficult without some expert evidence as to the proper “benchmark”. Thirdly, in any event it may assist me in deciding whether I need to make any recommendation(s) for the prevention of future deaths pursuant to rule 43 of [the 1984 Rules]”.

In relation to the claim that the resumed hearing take place before a different coroner, the coroner stated:

“… [a]lthough the HSE is usually willing to share the evidence it has gathered with coroners, routinely they do so on the basis that it must not be disclosed to others without the HSE’s express permission. I have had little choice but to consult the HSE on the issues of disclosure which have arisen…” : statement, paragraph 16.

The coroner states that the suggestion that he arranged the evidence to be called in apparent accordance with the HSE’s wishes or interests is entirely untrue.

“I have selected the witnesses I wish to call entirely by myself, and in choosing my witnesses I have been guided solely by my own views as to the evidence needed to ensure that my enquiry is sufficient and thorough and to enable the jury to reach a proper conclusion. I have had no contact whatsoever with the HSE regarding which witnesses should be called, and I have not taken any account of the HSE’s “interests” as prosecuting authority in making my selection.”

As to the complaint that he intends to consider whether a verdict of unlawful killing should be considered in respect of the actions or omissions of the claimants, the coroner stated:

“I have not yet decided whether the jury should be prepared to consider an Unlawful Killing verdict and I will not be able to do so until all the evidence has been heard. At that stage I will decide that question by applying the “Galbraith” test.”

The coroner did not accept that it was irrational for him to consider leaving an unlawful killing verdict to the jury in view of the CPS’s decision not to prosecute for manslaughter. He stated:

“The inquest would not be resuming at all if the CPS had decided to prosecute for manslaughter. The CPS’s decision (which may have been reached for any number of reasons) does not fetter or restrict the coroner’s enquiry in any way; if it did prevent an Unlawful Killing verdict being considered at the inquest, this would block consideration of that verdict in almost all cases.” (statement, paragraph 16(iv))

It is common ground that Article 2 is not engaged. Accordingly, while, as was recognised in R v HM Coroner for North Humberside and Scunthorpe, ex p. Jamieson [1995] QB 1, conclusion 14 at 26C, “[i]t is the duty of the coroner… to ensure that the relevant facts are fully, fairly and fearlessly investigated” and “he fails in his duty if his investigation is superficial, slipshod or perfunctory”, “how” in section 11(5)(b)(ii) and rule 36 “is to be understood as meaning ‘by what means’”: see conclusion 2 at 24A. In Jamieson’s case the court also stated (conclusion 1 at 23H) that rule 36(2) “forbids any expression of opinion” on any matter other than the four important but limited factual questions” identified; the identity of the deceased, the place of his death, the time of death, and how in the sense of that word given in that case, the deceased came by his death.

I have referred (see [21]) to what the court in Jamieson’s case said about the relationship between the statutory duty to ascertain how the deceased came by his death and the prohibition in rule 42 against framing the verdict in such a way as to appear to determine any question of criminal liability on the part of a named person or civil liability. In Jamieson’s case, the court did not, however, explore what Simon Brown LJ in R v Inner West London Coroner, ex p. Dallaglio [1994] 4 All ER 139 at 155 described as tension between the apparently narrow definition of “how” in section 11(5)(b)(ii) of the 1988 Act and in rule 36, and the wider provisions of section 8(3)(d), which (see R (Takoushis) v Inner North London Coroner [2006] 1 WLR 461 at [43]) looks to the future, as does rule 43. The court in Jamieson’s case also did not explore the relationship between its own conclusions 2 and 14. On these points, see also R (Smith) v Oxfordshire Assistant Deputy Coroner [2009] 3 WLR 1099 at [81] and [82].

One consequence of what was said about the relationship between the statutory duty to ascertain by what means the deceased came by his death and the prohibition in rule 42 is that it is accepted that the investigation will often be wider than what is strictly required for the purposes of a verdict and what can legitimately be contained in a verdict: see R v Inner West London Coroner, ex p. Dallaglio [1994] 4 All ER 139, 155 and 164 (Simon Brown LJ and Sir Thomas Bingham MR); R (Takoushis) v Inner North London Coroner [2006] 1 WLR 461 at [47].

The scope of a Jamieson inquest and its relationship to a Middleton inquest was considered by the House of Lords in R (Hurst) v London and Northern District Coroner [2007] 2 AC 189. The views of the House diverged on a number of matters. Baroness Hale and Lord Mance dissented. As a result of the different views, both Mr Randall and Mr Hoskins submitted the case supported the positions they had taken. It concerned an inquest which was adjourned pending a criminal trial at which a person was convicted of the manslaughter of the deceased. The deceased’s mother wished the coroner to reopen the inquest to investigate alleged failings by the police and the housing authority to protect him. The coroner refused to do so because, whatever the scope of the inquiry, the findings sought by her could not be made. Put differently, the issue in that case was whether the coroner’s decision not to reopen the inquest involved an unlawfully narrow approach to the appropriate scope of the investigation. By contrast, in this case the issue is whether the coroner’s decision about the scope of the investigation involved an unlawfully wide approach.

A majority of the House (Lord Bingham, Lord Rodger, and Lord Brown of Eaton-under-Heywood) held that, notwithstanding the power to conduct an investigation that is wider than the matters on which the jury could express views in their verdict, in that case the coroner acted lawfully in refusing to reopen the inquest. The contention that Middleton’s case now applies to all inquests was rejected: see Lord Rodger at [6] and Lord Brown at [48]. Lord Brown, with whom Lord Bingham agreed, (at [34]) doubted the value of an inquest at which the jury would be debarred in their verdict from expressing any views whatever about the conduct they had been examining.

In her dissenting speech. Baroness Hale referred (see [21]) to the statement of Lord Lane CJ in R v South London Coroner, ex p. Thompson (1982) 126 SJ 625 (reflecting the views of the Broderick Committee (1971) Cmnd 4810, paragraph 16.40) that “[t]he function of an inquest is to seek out and record as many of the facts concerning the death as [the] public interest requires”. She stated ([22]) that if the coroner had asked himself whether as many of the facts concerning the death as the public interest requires had indeed been investigated in that case, he might well have reached a different conclusion. She also stated ([23]) that, while Jamieson precluded a verdict of “unlawful killing, caused or contributed to by police neglect”, “the non-availability of such a verdict does not inexorably lead to the conclusion that a resumed inquest would serve no useful purpose”. Lord Mance (at [76]) agreed and also stated that, as he understood it from what Lord Rodger said in paragraph [8] of his speech, Lord Rodger took the same view about the value of a resumed inquest.

In R (Smith) v Oxfordshire Assistant Deputy Coroner [2009] 3 WLR 1099 at [64] the Court of Appeal referred to the difficulty in reconciling the different views expressed in Hurst’s case. Although this was said in relation to the differences between a Jamieson inquest and a Middleton inquest, the Court of Appeal also stated (at [76]) it was not sure Lord Mance was quite right about Lord Rodger’s position on the value of a resumed inquest. However, the court also stated that, in Hurst’s case, Lord Brown did not express disagreement with the views of Baroness Hale and Lord Mance about the scope of the permissible investigation at a Jamieson inquest. This suggests the Court of Appeal may have favoured their wider view, I have, however, concluded that, for the reasons given later in this judgment, neither the approach to be taken in this case nor its outcome turns on determining the precise position in the light of Hurst’s case as explained in Smith’s case.

In determining the width of the investigation a coroner should take into account that a coronial inquest is a fact finding inquiry. The statement by Lord Lane CJ, which I set out at [59], is a useful starting point. See also R v HM Coroner for North Humberside and Scunthorpe, ex p. Jamieson [1985] QB 1 at 23 (conclusion 1), R (Middleton) v West Somerset Coroner [2004] 2 AC 182 at [28]. Where Article 2 is not engaged, rule 36 of the 1984 rules provides that “the proceedings and evidence” at an inquest are constrained by its provisions and, in relation to “how” the deceased came by his death, to “by what means” he did so rather than the broader circumstances that may be necessary where Article 2 is engaged.

It is clear that the scope of a Jamieson inquest is not limited to the last link in the chain of causation: see in particular Dallaglio’s case [1994] 4 All ER 139, 155 and 164 at 164g-h. In Dallaglio’s case Sir Thomas Bingham stated that it was for the coroner to decide on the particular facts of a case at what point “the chain of causation becomes too remote to form part of his investigation”. Simon Brown LJ stated (at 155c) that the coroner’s rulings on the width of the investigation “will only exceptionally be susceptible to judicial review”. Although this indicates a narrow scope of review, a coroner’s decision or ruling may be successfully challenged if it is founded on an erroneous understanding of the law or, despite the width of the coroner’s powers, it is Wednesbury unreasonable. R (Takoushis) v Inner North London Coroner [2006] 1 WLR 461 is an example. The Court of Appeal held that the failure of the coroner to investigate a hospital’s emergency triage system sufficiently, that is his exclusion of a wider factual enquiry, was flawed. The verdict in that case was quashed and a fresh inquest ordered.

The proceedings in Takoushis’s case were instituted after the verdict had been given and the inquest concluded. At an earlier stage there may in practice be additional difficulties in challenging a ruling of the coroner as to the scope of the inquest but the principles should not differ. The evidence at an inquest is given orally by witnesses and, while some assessment can be made by reference to statements and other documents, a coroner may not be able to make a definitive decision at the outset solely from such written evidence about whether evidence relevant to a particular verdict should be adduced or whether a particular verdict will be open. A preliminary decision to include material may be more difficult to challenge because, at an early stage, the coroner’s duty (see [54]) to investigate the relevant facts “fully, fairly and fearlessly” suggests material should not be excluded where a definitive assessment as to its relevance cannot be made.

It cannot be the case, as the claimants’ written submissions come close to suggesting, that because the Crown Prosecution Service decided that it would not prosecute for manslaughter the coroner cannot include in the matters to be explored with the jury those which may lead him to leave an unlawful killing verdict for the jury to consider. The evidence that emerges at the later inquest may be different from that which was available when the prosecuting authorities were considering the case. Similarly, the claimants’ initial position (grounds, paragraph 5A(ii)) that Jamieson’s case does not permit an investigation of systemic failure is unsustainable in the light of Takoushis’s case: see [68] – [69] below. So is their initial position that any inquiry beyond eye and site witnesses and the pathology and toxicology evidence would be too broad.

I have, however, concluded that, in this case, while it might well have been possible for the coroner to reach the conclusions that he did as to the scope of the inquiry and the evidence to be adduced, he fell into error in the approach he used to determine these matters and in his approach to disclosure. First, in his letter of 15 June, he stated that “it is entirely a matter for the coroner to decide what evidence to call and what evidence not to call” and that “rule 36 of the Coroner’s Rules does not limit the evidence the coroner shall call”. But rule 36(1) expressly does do this by requiring “the proceedings and evidence” to be “directed solely” to ascertaining the matters listed. The terms of this letter would not in themselves have led me to set aside the decision, but the broad interpretation Mr Hoskins invited me to give to it does not really save the position. Even reading the reference to “the evidence” in the letter as a reference to “the scope of the investigation” and recognising that the width of the investigation will normally be broader than the scope of permissible verdicts, the coroner’s powers as to that scope, while wide, are not unlimited.

Secondly, there is no suggestion in the coroner’s correspondence before proceedings were instituted or his response to these proceedings that, in considering the scope of the inquest and the evidence to be called, he considered whether the evidence, at its highest, suggested that there was a single gross breach of a duty of care by a director. Nor does the correspondence or the coroner’s responses to these proceedings suggest an awareness of the rule that, for the purposes of gross negligence manslaughter, the individual acts of those employed by a company cannot be aggregated into a composite act of gross negligence: see Attorney General’s Reference (Number 2 of 1999) [2000] QB 796 at 813 and R v Inner South London Coroner, Ex p. Douglas-Williams [1999] 4 All ER 344 at 353. The closest the coroner comes to these matters is that, in his witness statement for these proceedings, he states that he has not yet decided whether the jury should be permitted to consider an unlawful killing verdict and “will not be able to do so until all the evidence has been heard”, and at that stage he would do so by applying the test in R v Galbraith [1981] 73 Cr App R 124.

Paragraph 11 of the coroner’s witness statement states (see [45]) that, since the deceased died in circumstances in which he was owed a relevant duty of care, the coroner was “obliged to consider whether an ‘unlawful killing’ verdict, on the basis of gross negligence manslaughter, may have to be left to the jury”. He stated he was obliged to explore the duty of care, whether there was a breach of that duty, whether the breach was a cause of the death, and whether it was sufficiently serious as to be categorised as criminal in the evidence called (see also paragraph 4 of the defendant’s skeleton argument).

As Sir Thomas Bingham MR recognised in Jamieson’s case (see conclusion 5 at [1995] QB 1, at 24), it was plainly open for “facts bearing on criminal and civil liability” to be explored with the jury. In this case the evidence of Mr Chater is not factual evidence. It is opinion evidence about, in particular, the management systems in place in the company and on the premises. Opinion evidence from an expert, for example medical evidence, or evidence of how a piece of equipment caused a fatality, will often be adduced at a Jamieson type inquest. But in the case of evidence of the sort contained in Mr Chater’s report, given the proscription in rule 42 on a verdict which is framed so as to appear to determine any question of civil liability, care is needed. It is necessary for a coroner to consider whether such expert evidence is appropriate in the particular circumstances of the case before him.

It is instructive to compare the evidence in Mr Chater’s report about the management systems in the company with the evidence considered in Takoushis’s case about the hospital’s emergency triage system. The question in that case was why, given the deceased’s vulnerability and risk as a result of his attempt to commit suicide immediately before he was brought to the hospital, he was not seen by a doctor for between half an hour and an hour when a person in his category should have been seen within 10 minutes. Three witnesses of factual relevance, the staff nurse who took over from the triage nurse, the psychiatric liaison nurse, and the doctor who eventually attended but only after the deceased had left the hospital, were not called: see [2006] 1 WLR 461 at [14]-[15]. The coroner in that case did not investigate how the emergency triage system should have worked after the triage nurse put a patient in a category and what safeguards were in place if, for some reason, the patient could not be seen within the target time. He decided before the inquest began that what occurred after the triage decision was a breakdown of the system rather than a defect in the system itself: ibid at [49]. The court concluded at [52] that the absence of evidence from the three factual witnesses meant there was no basis upon which the coroner could properly judge that there was no defect in the system in itself but only in its operation.

It does not follow from what was said in Takoushis’s case that expert evidence about the system will be appropriate in a Jamieson inquest. The court stated (at [55]) that, while the basis upon which the coroner rejected the family’s application that the inquest should be adjourned in order to summon a jury and to give them time to instruct an expert was flawed, it did not follow that he should either have summoned a jury or called an expert.

In this case Mr Chater’s report relied on a site visit, the factual evidence in the statements of other witnesses, the 2006 HSE report, and other documentation. The report did not identify any act of gross negligence. Mr Chater’s summary of his conclusions at paragraphs 8.8 to 8.10 falls short of this. Moreover, the report does not, on the basis of the other evidence considered by him, identify an act by an individual director. It thus does not assist in relation to the identification of an act of gross negligence by an individual director and the difficulties posed by the non-aggregation principle. The high point of the report is in paragraph 8.9 which states that the company’s practices “fall far short of health and safety good practice”. The report focuses on the inadequacy of the company’s management structures.

The coroner gives three reasons for wishing to adduce Mr Chater’s evidence: see [49]. Two of them concern an unlawful killing verdict and are thus affected by the failures I have discussed. Moreover, although, in paragraph 15 of his witness statement the coroner states that he only intends to ask Mr Chater to provide his expert views “orally in response to specific questions, on relevant matters only, in the light of the factual evidence given at the inquest”, he does not identify any circumstances in which, in the light of the factual evidence and the contents of Mr Chater’s report, Mr Chater’s views would not be adduced.

The coroner wishes to rely on the contents of the police interviews if the directors object to answering questions under rule 22 on the ground that the answer would tend to incriminate them. Even if the claimants’ answers to the questions are relevant and admissible to the issues as defined by rule 36, they only go to the issue of whether they have breached statutory duties imposed by health and safety legislation. They do not go to the issue of whether it is arguable that they are guilty of unlawful act manslaughter and therefore of unlawful killing.

The coroner also relied on the need to consider the evidence in order to enable the jury to consider whether they ought to return a narrative verdict and to enable him to consider whether he ought to issue recommendations under rule 43 of the Coroner’s Rules. With regard to the latter, as was recognised by the coroner in Takoushis’s case ([2006] 1 WLR 461 at 469E), the possibility of a rule 43 recommendation or report is ancillary to the inquest, the primary purpose of which is to determine by what means the deceased died by the full, fair and fearless investigation of the relevant facts referred to by Sir Thomas Bingham MR in Jamieson’s case. I do not consider that rule 43 enables a coroner to admit evidence he cannot properly admit having regard to the provisions in the rules and his common law duties. But, in assessing all the factors relevant in determining the scope of an inquest, and bearing in mind the statement of Lord Lane CJ in R v South London Coroner, ex p. Thompson (1982) 126 SJ 625 quoted at [59] and his reference to the public interest, the coroner was entitled to take into account the possibility of the need to refer the matter to the relevant person or authority under rule 43.

As far as a narrative verdict is concerned, as Mr Hoskins recognised (paragraph 1 of his supplementary skeleton argument) such a verdict is likely to be required in inquests in which Article 2 is engaged in order to discharge the state’s obligation under that article. However, conclusion 6 in Jamieson’s case ([1995] QB 1 at 24) states that “there can be no objection to a verdict which incorporates a brief, neutral, factual statement” provided the verdict expresses no judgment or opinion and is not a “detailed factual statement” which, as the court stated, it was not the jury’s function to prepare. The coroner’s letter dated 17 June 2009 (see [39]) refers to the fact that the proscription is on the wording of the inquisition and that “the matter is usually dealt with by a non-judgmental explanation of what has happened”. This shows he was aware of the limits on such a verdict.

Finally, although this is not the subject of a separate ground of challenge, the coroner’s approach was flawed in relation to the medical evidence of Dr Acland and Dr Braithwaite and that of Mr Reid. With regard to the medical evidence, the claimants agreed (see [28]) that the evidence of Dr Acland could be read but not that of Dr Braithwaite. The implication of the coroner’s letter dated 10 June (before he knew of the consent) was that unless the claimants had “good reasons” for requiring the medical evidence to be given orally, it would be read. This is, however, contrary to the terms of rule 37(1) of the 1984 rules. That rule states that evidence the coroner considers is unlikely to be disputed can be admitted in documentary form “unless a person… within rule 20(2) objects to the documentary evidence being admitted”. The claimants were persons within rule 20(2). Rule 37 only provides, in sub-rule (2), that documentary evidence so objected to may be admitted if “the maker of the document is unable to give oral evidence within a reasonable period”. There is no indication that either Dr Acland or Dr Braithwaite was unable to give oral evidence within a reasonable period.

With regard to the evidence of Mr Reid, who it was thought might be out of the country, it was clear that his evidence was disputed. It was stated in R (Paul) v Assistant Deputy Coroner for Inner West London [2008] 1 WLR 1335 at [34] that rule 37(1) permits the admission of documentary evidence from a living person only if in the coroner’s opinion it was unlikely to be disputed. This is not the case in respect of Mr Reid’s statement.

I turn to the coroner’s position on disclosure. I leave aside his initial mistake about the provenance of some of the statements and whether they fell within what he described as the “HSE embargo”, that is the understanding with the HSE that statements taken by the HSE would not be disclosed. In relation to his reliance on the HSE embargo, the coroner did not, it appears, ask the HSE whether he could disclose the material until after proceedings had been commenced. There is indeed no indication in the contemporary correspondence, the coroner’s Acknowledgement of Service, or his response to the claimants’ grounds and arguments that, after the claimants requested the statements and documents, he considered whether fairness required disclosure. He simply relied on the absence of provision in the 1984 Rules for such disclosure and the HSE embargo. Moreover, the nature of and reason for that embargo was not explained until the coroner’s response to these proceedings in his witness statement and in the response to the claimants’ grounds and argument. It is not stated in paragraphs 8 and 9 of his witness statement that any consideration was given to the question of whether fairness required disclosure. The matter was only raised with the HSE “in view of the way in which matters developed” i.e. the institution of proceedings. Before then he did not consider whether fairness required him to exercise his discretion to make disclosure or to approach the HSE to obtain its consent.

In R (Bentley) v HM Coroner for Avon [2001] EWHC Admin 170 Sullivan J stated (at [65]) that “the proposition that a person will not be able to participate in proceedings in an effective way in the absence of advanced disclosure is increasingly recognised”. His Lordship also stated (at [67]) that, with respect to documentary evidence which it is proposed to admit at an inquest, “without advanced disclosure [persons falling within rule 20(2) of the 1984 Rules] may be placed at a significant disadvantage” and that “the need for advanced disclosure is not answered by the proposition that an inquest is an inquisitorial procedure”. The reliance in this case on the embargo, without giving a reasoned explanation of its nature, initially extending to the statements of a number of the factual witnesses including statements given to the police, the failure to consider whether fairness required further disclosure or an approach to the HSE, and the conclusory statement in the letter dated 10 June that the coroner’s decision on these matters “is an end to the matter” show the coroner failed to approach the matter in the way that Sullivan J stated he should have done.

As for the refusal to adjourn the hearing, there was a substantial delay on the part of the claimants after they were notified of the inquest and told they would be required to give evidence and the first letter from their solicitors. Unless such delay is explained, the party who has delayed cannot expect arrangements which have been made in the meanwhile to be unpicked as a matter of course. In this case there was no satisfactory explanation for the delay. Notwithstanding this, I have concluded that, in the particular circumstances of this case, the refusal to grant the adjournment was at the very least questionable.

The coroner initially did not supply all the documents. The documents withheld included the statements of the factual witnesses who would be giving evidence at the hearing. Nor did the coroner supply the appendices to Mr Chater’s wide-ranging reports. He supplied a number of the witness statements under cover of his letter dated 15 June, only a week before the resumed hearing was to start. Those statements were by employees and had been wrongfully withheld because the coroner mistakenly thought they were subject to “the HSE embargo”. The coroner’s letter dated 17 June does not refer to his mistake in relation to disclosing the employee’s statements when stating that the claimants had ample time to consider the matters that would come before the jury. The coroner’s focus on the claimants’ solicitors admittedly mistaken reference to “parties” and “prosecution evidence” appears to have led him to overlook this and the effect on the claimants of his general approach to disclosure.

I have concluded that in determining the scope of the inquiry the coroner fell into error in respect of the approach to be taken to the question of whether evidence pointing to a possible verdict of unlawful killing should be explored with a view to determining at a later stage whether this verdict should be left to the jury because of his failure to consider whether the evidence, at its highest and taking account of the non-aggregation principle, suggested that there was arguably a gross breach of a duty of care by a director. I have also concluded that the coroner’s approach to disclosure before the institution of these procedures did not reflect the approach set out by Sullivan J in Bentley’s case and that his decision to refuse the claimant an adjournment was questionable. Moreover, although not the subject of a separate ground of challenge, the coroner’s approach to evidence which can be read was flawed. My conclusions do not depend on a resolution of the position in the light of the different views expressed in Hurst’s case (see [57] – [60] above) because even on the view of the scope of permissible inquiry taken by Baroness Hale and Lord Mance, this coroner fell into error. In these circumstances, his decisions must be set aside.

The next question is whether the matter should be remitted to a different coroner or deputy coroner. It is not said that the coroner is biased or that he has formed views at this stage as to what will be the eventual outcome of the inquest. The claimants, however, submit, relying on the principles set out in R v Gough [1993] AC 646 and R v Inner West London Coroner ex p. Dallaglio [1994] 4 All ER 139, that the coroner has given the appearance that he is not even-handed and that there is a “real danger”, “real risk” or “real possibility” (see Dallaglio at 151) that he will appear to regard with disfavour the claimant’s position for reasons unconnected with the merits of case.

As Simon Brown LJ stated in Dallaglio’s case [1994] 4 All ER 139 at 151-2 the court must ask whether there is a real danger that the coroner was unconsciously biased in the sense of there being actual, though unconscious, bias. In the context of this case the court must ask whether there is a real danger that the coroner unfairly (though unconsciously) regarded with disfavour the case of the claimants when deciding the scope of the evidence to be adduced at the inquest so that he would, albeit unconsciously, weigh the competing contentions and decide the merits, unfairly.

Given the particular position of a coroner (see Sir Thomas Bingham MR in Dallaglio’s case at 162j) his contact with the HSE was not inappropriate. Moreover, the coroner in this case has, on a number of points, reviewed and changed his position in favour of the claimants, even though he did so in respect of some matters only after these proceedings had been instituted. But the tone of his letter dated 10 June 2009 in response to the solicitors’ enquiry and request for disclosure, his assertion that the solicitors did not understand the coronial process, and that he had decided what might be relevant and revealed matters “that are not the subject of an embargo”, and “that, with respect, is an end to the matter”, together with what he said about evidence being read indicates a surprising approach at the very beginning of his contact with the claimant’s solicitors. Thereafter, as is seen from the correspondence I summarised earlier in this judgment, matters escalated on both sides.

The contents of the correspondence from the coroner’s initial response in his letter dated 10 June 2009, his approach to disclosure and failure to disclose or explain the Memorandum of Understanding between the HSE and the National Coroner’s Society which he claimed obliged him not to disclose relevant documents to the claimant, and his failure to disclose statements of employee witnesses favourable to the claimants who (see [44]) he had expressed no intention of calling until 27 August 2009 have led me to conclude that it is right that the resumed hearing of the inquest take place before a different coroner or deputy coroner.

For these reasons this application is granted.