Lagos, R (on the application of) v HM Coroner for the City Of London

The Claimant applies for judicial review of the verdict at an inquest conducted by the Defendant on 20^th September 2011 into the death of his wife, Nuelia Nunes Lagos.

On 28^th July 2010, Nuelia Lagos was found dead at Breton House, Barbican, London EC2Y 8DQ. Her date of birth was 6^th June 1977 and so she was 34 years old. At the inquest, the Defendant, who sat without a jury, recorded an open verdict.

In summary, the issues in the judicial review are:

On numerous occasions, the Claimant has applied unsuccessfully to the court for disclosure of the police report sent to the Defendant. He renewed his application at the commencement of the hearing, and I refused it.

The police report is a document prepared specifically for the Coroner, which summarises the police investigation, the identity and evidence of any witnesses, and the provisional conclusions of the investigating officer. It is intended to assist the Coroner in understanding the issues and deciding which witnesses are to be called. Police reports are not adduced in evidence at inquests because they are not primary evidence.

In accordance with usual practice, the police report was not adduced in evidence in this case. The Defendant objected to disclosure on the ground that it was a confidential document which could not be relevant to the judicial review claim since it was not part of the evidence upon which he reached his verdict.

Generally, the evidence in a judicial review claim is limited to the material which was before the decision-maker when he made his decision. Other material is usually irrelevant and therefore not liable to be disclosed. Exceptionally a Claimant might obtain disclosure of material which was not before the decision-maker, if he could establish that it might be relevant to the grounds of review.

In this case, I did not consider that the police report was relevant to the Claimant’s grounds of review.

Detective Constable Briars gave oral evidence at the inquest describing the nature and outcome of the police investigation. Mrs Lagos’ body was found at the bottom of a deep well, below a walkway with a barrier. The evidence indicated that she impelled herself from the bar at the top of the barrier and fell backwards, resulting in her death. DC Briars said that there was no evidence of any other person being involved in her death, and no sign of any attack upon her. Taking into account her history of depression and anxiety, suicide was the most probable explanation. However, since no one saw the fall, an accident could not be ruled out, for example, if she sat on the bar and slipped backwards, or was gently pushed by a passerby, which he acknowledged was highly unlikely.

DC Briars’s conclusion that the probable explanation was suicide is consistent with the Claimant’s own analysis, and therefore the Claimant would have no reason to challenge it. It is fanciful to imagine that DC Briars withheld any information in the police report which would have shed any further light on the cause of death. The Claimant said he was searching for scientific evidence of suicide; however, there is nothing to suggest that such evidence existed.

For these reasons I concluded that the police report was not relevant to the claim for judicial review. I did however order disclosure of the police photographs and the evidence relating to the fingerprints as this material was in evidence at the inquest.

Inquests are governed by the Coroners Act 1988 (“the Act”) and the Coroners Rules 1984 (“the Rules”). Section 11 of the Act concerns the proceedings at an inquest and provides as follows:

“(2)

The coroner shall, at the first sitting of the inquest, examine on oath concerning the death 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.

…

(4)

In the case of an inquest held without a jury, the coroner shall, after hearing the evidence –

(a)

give his verdict and certify it by an inquisition; and

(b)

inquire of and find the particulars for the time being required by the 1953 Act to be registered concerning the death.

(5)

An inquisition –

(a)

shall be in writing under the hand of the coroner…

(b)

shall set out, so far as such particulars have been proved –

(i)

who the deceased was; and

(ii)

how, when and where the deceased came by his death”

Rule 36 of the Rules regulates the scope of inquiry in terms which mirror those of section 11(5)(b):

“(1)

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

(a)

who the deceased was;

(b)

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

(c)

the particulars for the time being required by the Registration Acts to be registered concerning the death.

(2)

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

Rule 42 further stipulates that no verdict should be framed in such a way as to appear to determine any question of civil liability at all, or any question of criminal liability of a named person.

Rule 60 of the Rules provides that forms set out in Schedule 4 may be used for appropriate purposes with such modifications as circumstances may require. Form 22 is a standard-form Inquisition. The notes to the form (which do not have statutory force) include a list of suggested possible verdicts which may be included in section (4) of the form (Conclusion as to the Death). These are the long-established “short form verdicts”, such as “[Deceased] died from natural causes” or “[Deceased] died as a result of an accident”.

In R v HM Coroner for North Humberside, Ex Parte Jamieson [1995] QB 1 at 23G-26C, Sir Thomas Bingham MR reviewed these provisions and set out a series of general propositions of law. He described an inquest as a statutory inquiry established to determine the answers to “four important but limited factual questions”: who the deceased was, and how, when and where he came by his death. The “how” question was to be interpreted as meaning “by what means the deceased came by his death”, a question directed to the immediate physical means of death.

The Claimant’s primary ground is that the Defendant should have returned a verdict of suicide. A verdict of suicide would have acknowledged and respected the way in which she chose to end her life, and thus accorded her the dignity to which she was entitled under Article 1 of the Universal Declaration of Human Rights. The Claimant alleges that the verdict was irrational, in the light of the circumstances of her death and the evidence of her suicidal state of mind and behaviour in the period leading up to her death. He also alleges that the Coroner was biased in the sense that he wished to avoid attributing blame to the educational authorities, in particular the head teacher of the school where his wife worked.

The Defendant denies these allegations. He says, in summary, that his task was to ascertain Mrs Lagos’ intention at the time of her death. He did take into account the evidence of previous recent attempts to harm herself but looking at the totality of the evidence, he was not satisfied to the required standard that she intended to take her own life. Since he was not satisfied that any other conclusion such as accident or unlawful killing was appropriate, he recorded an open verdict.

I set out below a brief summary of the evidence.

Mr Anele and Dr Pearce described how they had found Mrs Lagos’s body. The Defendant read out the statements of the two ambulance staff who were called to the scene, arriving at 7.43 am. Death was confirmed by 7.47 am.

The opinion of Dr Poole, the pathologist, was that Mrs Lagos had died from severe head injuries consistent with a fall from a considerable height (30 to 40 feet) on to a concrete floor. In the course of questioning, Dr Poole confirmed that there was no evidence that the fall had been caused by any illness which caused her to lose consciousness and fall. Nor was there any evidence that she had been attacked.

DC Briars explained that the Barbican is a complex of walkways and apartment blocks on different levels. Mrs Lagos’ body was found at the bottom of a deep well. On the walkway above, there was a metal and glass barrier, to stop pedestrians from falling into the well. There were marks on the bar along the top of the barrier which were consistent with someone sitting on the bar with their hands resting on it. Mrs Lagos’ fingerprints were found on the bar. Given the height of the barrier and Mrs Lagos’ height, it would have taken some effort for her to get on to the barrier.

DC Briars said that there was no evidence of any other person being involved in her death, and no sign of any attack upon her. Taking into account her history of depression and anxiety, suicide was the most probable explanation. The evidence indicated that she impelled herself from the bar and fell backwards, resulting in her death. However, since no one saw the fall, an accident could not be ruled out, for example, if she sat on the bar and slipped backwards, or was gently pushed by a third party, which he considered was highly unlikely.

Mrs Lagos had a past history of mental illness. The inquest heard evidence that she had been displaying symptoms of anxiety from at least February 2010. On 10^th July 2010, Mrs Lagos had to be hospitalised after drinking excessive alcohol and taking an overdose of Buscopan. She was diagnosed with depression, and prescribed medication. She was referred to an NHS Home Treatment Team.

Dr Aitken, who was Mrs Lagos’s general practitioner, prepared a report which was read out at the inquest. It incorporated a letter from the clinical team leader of the crisis resolution home treatment team, describing her history of anxiety, for which she was prescribed anti-depressants. She had taken an overdose, which she described as a cry for help. She felt victimised by her head teacher who had given her a poor reference. She discharged herself against medical advice on 20^th July 2010.

Dr Travers, Consultant Psychiatrist, gave evidence. He said Mrs Lagos had been diagnosed with depression and anxiety following the 10^th July overdose which they viewed as a serious crisis. She admitted to “fleeting” suicidal thoughts, but she had not made specific plans to commit suicide. Later in July, she decided to cease both medication and treatment. The Claimant questioned him about the voices which Mrs Lagos had said she was hearing, but Dr Travers said the team had not assessed her as hearing voices or having hallucinations.

The Claimant said in evidence that Mrs Lagos was a nursery school teacher who had been living in England for a number of years. The Claimant, who is from Brazil, married her in January 2010. They spent as much time together as they could, either in the UK or Brazil. When they were apart they kept in regular contact by internet video link (Skype) and messaging. However, they found the long separations difficult, and so Mrs Lagos was planning to move to Brazil at the time of her death.

The Claimant said that he arrived back in London from Brazil on 16^th July. His mother, who suffers from dementia and cannot be left alone, accompanied him. There was insufficient space for all three of them to stay in Mrs Lagos’ flat, so they stayed in a one room studio flat in the Barbican, borrowed from a friend.

After the Claimant’s return in July, shortly before her death, he observed a number of occasions when Mrs Lagos appeared to be trying to harm herself, and he had to protect her. When he arrived she had a wound in her neck. On one occasion, she wanted to jump into a canal; on another, to run in front of a taxi on the road. She expressed a desire to go to the railway station and jump in front of a train. She swallowed a large quantity of medication intended for the Claimant’s mother. The Claimant had to remove a knife from her, and also some bleach, to stop her harming herself.

The Claimant said that Mrs Lagos had experienced difficulties at work, which she summarised in an email to the local education authority on 27^th July 2010, the day before she died. She was absent from work because of stress in February/March 2010 and resigned at the end of May 2010. Among other matters, she considered that the head teacher had given her unfair references which were adversely affecting her search for work.

Ms Sarah Haynes, the head teacher, gave evidence at the inquest, giving her perspective of the issues which had arisen with Mrs Lagos. She considered it was not in the interests of the school or the children for teachers to take time off during term time. The first time she became concerned about Mrs Lagos’ health was in February 2010, when she advised her to see a doctor because of her feelings of stress and loss of control. She justified the rankings she had given Mrs Lagos in the pro forma references after Mrs Lagos left the school.

Ms Samantha Dixon, who was a friend, gave evidence saying that Mrs Lagos had been had been stressed about problems at work and also her relationship with the Claimant, especially the difficulties in looking after his mother who was suffering from dementia.

Her relative, Ms De Abreu, gave evidence saying that she had not been aware that Mrs Lagos had any problems at work, nor that she was depressed.

The approach which the Defendant was required to take in assessing the evidence and reaching a verdict was helpfully summarised by Mr Hough, for the Defendant, in his skeleton argument.

The conclusion of a coroner sitting alone as to the appropriate verdict involves an evaluation of the evidence. Provided that he directs himself correctly as to the ingredients of the verdict, the standard of proof applying to it, etc., his decision may only be impugned if it is unreasonable in the Wednesbury sense (i.e. perverse or outside the range of reasonable responses). See: R v City of London Coroner, Ex Parte Barber [1975] 1 WLR 1310 at 1313 (Lord Widgery CJ).

In general terms, the conclusions which a coroner or jury may return are to be reached by applying the balance of probability standard. However, the verdict of suicide may only be returned if the ingredients of the verdict are all established to the criminal standard of proof (i.e. the tribunal must be satisfied “beyond reasonable doubt” or “so that it is sure”). Thus, in order to return a verdict of suicide, the coroner or jury must be sure (i) that the deceased intended his own death; and (ii) that he did an act with that intention which caused his death. The only other verdict to which this standard applies is that of unlawful killing. In both cases, a high standard is deliberately set in order to ensure that such serious findings are only made on the basis of absolutely clear and compelling evidence. See: R v West London Coroner, Ex Parte Gray [1988] 1 QB 467 at 477 (Watkins LJ). In that case, the Court explained the need for the high standard of proof as being because suicide is regarded as “a drastic action which often leaves in its wake serious social, economic and other consequences.”

Consistently with the high standard of proof required in relation to all ingredients of a suicide verdict, the Courts have repeatedly stressed that suicide must not be presumed simply because it seems a likely, or the most likely, explanation of events:

In summary, the approach of the Courts to suicide verdicts reflects (a) the fact that a finding of suicide is a serious matter which can cause serious distress and stigma, and other adverse consequences; and (b) the complexities of human psychology which can cause people to harm themselves seriously or to put themselves in very dangerous positions without the clear intention to end their lives.

In his summing up, the Defendant correctly directed himself on the legal test, saying:

“It is not possible for the Coroner to record a conclusion of suicide unless the Coroner is sure that the person concerned intended to do an act to take their own life and did it with the result that that person died. It is not enough to think, ‘Well, probably that is what happened.’ Instead, because of the seriousness of the statement that somebody died from suicide or through unlawful killing, the Coroner must be satisfied so that he is sure that that is what happened. He must be able to exclude other possible explanations. In some cases the Coroner can find a note which says, ‘I want to kill myself and I am going to do that,’ and then the body is found and we put two and two together. Well, that is not this case.”

The Defendant then proceeded to evaluate the evidence, reaching the conclusion that an open verdict should be recorded:

“I have to consider whether the evidence in this case is sufficient to satisfy me so that I am sure, excluding other possible explanations, that Mrs Lagos intended to kill herself. I can exclude easily the idea that she was unlawfully killed. There is no evidence at all to suggest that anyone else was involved in her fall from the podium level. The medical evidence from the pathologist and police report after the investigation – and you will recall that the police officer said, ‘A death like this is treated as suspicious until we prove it is not’ – the evidence of the pathologist and the police satisfies me that is simply not an unlawful killing. There was no other person involved.

So what are the possibilities? There is no doubt that Mrs Lagos was suffering from depression. There is no doubt, too, that she had had medication which she had stopped taking, so it is likely that the depression would continue. And we have had evidence from Mr Lagos about the strange behaviour of his wife and the strange thoughts that seemed sometimes to impel her towards trying to harm herself. So, for exampled, he described how when they were walking alone she might have wanted to jump in the canal or she might have wanted to jump over something. This kind of evidence suggests that Mrs Lagos was thinking about these things. Not necessarily deciding to do it, but thinking about it. She certainly had the depression and she certainly was not taking the tablets. She also had the other episodes which Mr Lagos has described where she swallowed lots of Mr Lagos’s mother’s medication. So there were a number of incidents of either self-harm or thinking about trying perhaps to get in a position to do self-harm, but I have to ask myself there were occasions when she did not try to do this. There were occasions when she would go away from Mr Lagos for some purpose and come back. Nothing had happened. So when Mrs Lagos actually left the apartment on the morning of her death, why was she going? The evidence of Mr Lagos is that she said, in English, ‘Where is my thing?’ as if she was going to look for something. And she left the flat and went outside. If she was feeling stressed because of the presence of her mother-in-law in a small apartment, and of course her mother-in-law was ill, suffering from dementia, and must have been a burden for Mr Lagos and Mrs Lagos to deal with, and maybe just for a moment she wanted to go outside to get away from the pressure, to relieve that. And maybe even she sat on the railings which were above the void.

The difficulty for me is to be sure that she sat upon the railings, and clearly she did because of the marks in the dust, and then let herself fall backwards deliberately so as to take her own life. How can I be sure that that was what happened? Other explanations are possible. For example, that she just wanted to get away for a few minutes to have a rest and just sat on the railings. Well, you may say, ‘But it is quite difficult to get up on the railing.’ Maybe. Maybe it is not easy, but that does not mean that people cannot do it. And it does not mean that she must have had the intention to kill herself.

So, overall, looking at all the evidence which we have heard today, when I put it all together I say, yes, this was a lady who had depression, She had been treated by the doctor. But I have to test the moment at which she is sitting on that railing and ask myself, ‘Can I be sure that she intended to kill herself or are there other possible explanations which I cannot excluded?’ And at the moment, ladies and gentlemen, I cannot exclude other possibilities. I can say perhaps that the suicide hypothesis is more likely, but I do not think that I can push it to the level of saying ‘I can exclude all the other possibilities and she…I am sure that she intended to kill herself’.

So, ladies and gentlemen, I cannot say this was an accident, but nor, according to the law, can I be satisfied that this was suicide. In my judgment therefore the appropriate conclusion for me to reach after finding all those facts is one which is recorded as an open verdict. And that simply means that the evidence was not sufficient to enable me to say on the facts either that she intended to kill herself or that it was an accident. We simply do not know.”

The Claimant contends that it is absurd to imagine that she would have chosen to sit in such an unsuitable place, which she could only reach with difficulty. However, since her fall was not witnessed by anyone, and there was no CCTV, it is not possible to say how she came to be sitting on the bar and whether her fall was deliberate or accidental. As Mrs Lagos did not leave a suicide note, there was no clear statement of her intention to kill herself on that day, at that time.

I agree with the Claimant that the circumstances of her death, combined with the evidence of her mental state in the period leading up to her death, makes suicide the most probable explanation. But, in law, the Defendant had to be sure that Mrs Lagos intended to commit suicide, and did in fact do so. All other possible explanations for the death had to be excluded. The Defendant has been entrusted with making that judgment, and his conclusion can only be challenged on the basis that no reasonable coroner could have reached this conclusion on the evidence. This is a high threshold. It is not enough for the court to decide that it would have come to a different conclusion or that another coroner might have come to a different conclusion. In my judgment the claimant has failed to establish that the Defendant’s verdict was irrational or perverse.

The Claimant submitted that the Defendant’s failure to adjourn the hearing at the end of the evidence, and take time to consider his verdict, showed that he was not giving proper consideration to the facts of the case. I do not agree. It is commonplace for a coroner to sum up and decide upon a verdict immediately after the evidence has concluded. The important issue is the content of the summing up and the verdict reached. In my judgment, the summing up and verdict adequately explained the Defendant’s reasoning and conclusions.

There is, in my view, no foundation for the allegation that the Defendant was biased or was seeking to protect the head teacher, whom he had never met before. Applying the test in Porter v Magill [2002] 2 AC 357 at 494H, a fair minded and reasonable observer having considered the facts would not have concluded that there was a real possibility that the Defendant was biased.

Finally, the open verdict was not intended to deprive Mrs Lagos of her dignity, contrary to the Universal Declaration of Human Rights, and in my judgment, it does not do so. It merely reflects the specific legal requirements relating to a verdict of suicide.

The Claimant also criticises the way in which the inquest was conducted.

First, he complains that the interpreter who appeared in court was not the same person who had originally been booked; he was not satisfied that the interpreter who attended was properly qualified, and in the afternoon of the inquest she ceased to interpret for him.

The evidence shows that the interpreter whom had been booked, at the court’s expense, Ms Klasiena Slaney, sent an email to the coroner’s officer at 8.23 am on the morning of the inquest stating that she was unable to attend the hearing because she had only just returned home from an urgent assignment which had lasted all night, as it involved a mental health assessment. She said she was too exhausted to attend the inquest but that she had arranged for a colleague Ms Nobuko Primarolo to substitute for her. Ms Primarolo was a fully qualified interpreter and on the Metropolitan Police list of interpreters. I have seen the email and there is no reason to doubt that this account is genuine.

Ms Primarolo acted as interpreter at the inquest. The witness list was duly amended. The Claimant made no complaint at the inquest about Ms Primarolo’s interpreting or her behaviour. The Claimant is able to read, speak and understand English to a reasonable level, but benefits from an interpreter who can translate complex words and phrases so that the precise meaning is clear. I do not consider that there is any evidence of unfairness arising from the change of interpreter.

Secondly, the Claimant complains about the witnesses who were not called, the evidence given and the lack of a proper opportunity to question them.

As a matter of law, the decision as to which witnesses to call is taken by the Coroner pursuant to section 11 of the Act. That section involves a two-limb test of relevance and expediency, and a coroner’s selection of witnesses may only be challenged if unreasonable in the Wednesbury sense: R v HM Coroner for Western District of East Sussex, Ex Parte Homberg (1994) 158 JP 357 at 374D-F (Simon Brown LJ); R (Cairns) v HM Deputy Coroner for Inner West London [2011] EWHC 2890 (Admin) at [23], per Silber J. It has long been recognised that the scope of inquiry at an inquest can extend wider than is strictly required for the production of the verdict, and that the Courts will only rarely interfere with decisions as to scope: R v Inner West London Coroner, Ex Parte Dallaglio [1994] 4 All ER 139 at 155b, per Simon Brown LJ and 164j per Sir Thomas Bingham MR.

The Coroners Rules 1984 are in broad terms, leaving the coroner a broad discretion as to how to conduct the inquest:

“It has often been remarked that, measured by the standards of modern procedural rules in other courts and tribunals, the Rules are largely silent as to the procedure to be adopted at an inquest and leave a very broad area of discretion to the coroner holding the inquest. That discretion must, of course, be exercised in a manner that is fair to all those who have an interest in the proceedings.” (R (Coker) v HM Coroner for Inner South London [2006] EWHC 614 (Admin) at [14] to [16] per Sullivan J.)

Importantly, the proceedings at an inquest are inquisitorial not adversarial in nature. In consequence, the coroner is the principal questioner. By Rule 20 of the Coroners Rules 1984, certain classes of persons are entitled to examine a witness, but the coroner has power to disallow any question which in his opinion is not relevant or is otherwise not a proper question.

One of the Claimant’s complaints was that the Defendant repeatedly prevented him from developing his questions to the witnesses, for example:

Although I have some concerns about the way in which the Defendant intervened in the Claimant’s questioning of witnesses, I do not think that it was sufficiently serious to amount to procedural unfairness.

Moreover, even if the Claimant had demonstrated to the Defendant that Ms Dixon and Ms De Abreu’s evidence was inaccurate, I do not consider that it would have made any difference to the Defendant’s conclusion that he could not rule out accident as a cause of death. The Defendant accepted that Mrs Lagos had a depressive illness and was a suicide risk. His verdict was based upon the police and medical evidence about the fall itself.

I also note that when Ms Haynes, the head teacher gave evidence, the Defendant allowed the Claimant to question her quite extensively, without intervening unduly, presumably because he knew from Mrs Lagos’ email that the Claimant was bound to want to question her about the problems at the school. I suspect that the problem with the other witnesses was that the Defendant did not appreciate the points which the Claimant was seeking to make.

Some of the evidence was presented in the form of written witness statements. These were:

Rule 37 of the Coroners Rules 1984 provides that the coroner may admit documentary evidence at an inquest which, in his opinion, is unlikely to be disputed, unless a person who is entitled to question the witness, pursuant to rule 20, objects.

The Defendant supplied the Claimant with the report and two statements in advance of the inquest. At the beginning of the inquest, he referred to each document, and asked the Claimant if he objected to this evidence being admitted in writing without the witness being called. The Claimant confirmed that he did not object.

In my judgment, the Coroner acted lawfully in admitting the report and two statements as documentary evidence under Rule 37. The evidence was not controversial and the Claimant did not object. He has not been able to put forward any legitimate reason why these witnesses should have been made available for questioning.

In conclusion, the Claimant has failed to establish that the inquest verdict was unlawful and therefore his claim for judicial review is dismissed.