Jones v HM Coroner for Gwent & Anor

The applicant in this case is Nathan Jones. His son, Mason Jones, tragically died, aged 5, following an outbreak of E-coli 0157 in South Wales. That was in the autumn of 2005. As a result of the outbreak, the Welsh assembly government commissioned a report from Professor Hugh Pennington, an eminent bacteriologist, who conducted a wide ranging public inquiry. He produced a detailed 353 page report. We have read the summary, which sets out the key findings and recommendations. Professor Pennington concluded that the outbreak was caused by cooked meats which had been contaminated with Ecoli 0157. They had been produced by John Tudor and Sons, a catering butcher business in Bridgend. Professor Pennington highlighted the very serious failings in the operation of the business (paras 21-25):

“21.

There were serious, and repeated, breaches of Food Safety Regulations. He failed to ensure that critical procedures, such as cleaning and the separation of raw and cooked meats, were carried out effectively. He also falsified certain records that were an important part of food safety practice.

22.

The business’s Hazard Analysis Critical Control Point (HACCP) plan was not valid. In some respects it was positively inaccurate and misleading.

23.

William Tudor misled, and lied to, Environmental Health Officers on some issues, such as the use of the vac packing machine and a machine being away for repair.

24.

There is no evidence that there was a sudden decline in food safety practice just before the Outbreak. Deficiencies had been there for a long time before.

25.

William Tudor had a significant disregard for food safety and thus, for the health of people who consumed meats produced ad distributed by his business.”

The report was presented to the Welsh Assembly in March 2009. Meanwhile, on July 27 2007 William Tudor, the manager of the business, pleaded guilty to seven counts of breach of food hygiene regulations. The Crown Prosecution Service had concluded, after consultation with the then Chief Crown Prosecutor, that there was insufficient evidence to provide a realistic prospect of a conviction for manslaughter. The reason given by Mr J D M Hughes, the Head of Area Complex Case Work Unit of the CPS, in a letter to Mason’s parents dated 8 October 2007, was as follows:

“…the available evidence fell short in identifying the breach that led to the outbreak. Also it was explained that there was no evidence to show that there was a serious risk of death which, as you will be aware, is an essential element of the offence … as you will appreciate the decision in R v Adomako limits the offence of gross negligence manslaughter and it is clear that risk of injury or even serious injury is not enough.

As was explained to you at our meeting, the mortality rate in E.coli outbreaks is very small. I appreciate this is no comfort for your clients but nevertheless it is a material factor. In the current outbreak there are 118 confirmed cases with a single death and this seems to accord with the mortality rate.

A prosecution for a food hygiene offence places a considerably reduced burden on the prosecution in satisfying the requirements of the offence.”

On 24 November 2010, that is following the publication of the Pennington Report, an inquest opened before the Coroner, Mr David Bowen. The report constituted what the Coroner described as “an important cornerstone of the evidence” in the inquest. The Coroner also heard evidence from a number of witnesses, including Mason’s mother. Mr Powell QC, counsel for the parents, submitted a detailed written submission and also made brief oral observations in which he contended that the critical question was whether “a reasonable prudent person in the position of Mr Tudor would have seen that there was a serious and obvious risk of death.” He sought to persuade the Coroner that the risk of death would have been foreseen and that the only appropriate verdict would be that Nathan was unlawfully killed.

The Coroner did not agree that this was the appropriate verdict, although he said in his report that he had agonised over the question. His reason for rejecting that verdict was essentially that although there was a serious and obvious risk of illness, he was not satisfied that a reasonably prudent person would have foreseen “a serious and obvious risk of death as opposed to illness.” It is common ground that this finding, an inference from the primary facts, would as a matter of law defeat any gross negligence manslaughter claim.

The Coroner recorded the following narrative verdict on the 25 November 2010 :

“Death was the result of an E. coli infection, probably due to the consumption of cooked meat which had become contaminated with that organism during the course of preparation, due to a lack of or disregard for good food hygiene practices.”

He also referred certain concerns to the Welsh Assembly government pursuant to rule 43 of he Coroners’ Rules 1984, and he made recommendations, such as more regular unannounced inspections of abbatoirs, designed to prevent the problem arising in future.

Over two years later, the parents had a meeting with the then Director of Public Prosecutions, Mr Keir Starmer, and the DPP agreed to reconsider the charging decision. Mr Mark Heywood QC was instructed. He was firmly of the view that not only was there evidence that a reasonably prudent person in the position of William Tudor ought to have appreciated that there was a serious risk of death, but also that the evidence demonstrated that William Tudor did actually appreciate that fact. Mr Heywood relied on evidence available in 2006, including an admission in interview by William Tudor himself that he knew that the particular EColi strain could be fatal.

The new DPP, Ms Alison Saunders, accepted Mr Heywood’s opinion and apologised to the parents for what she conceded had been an error in the original charging decision. She now accepted that there had been sufficient evidence for the charge of gross negligence manslaughter to have gone to the jury. However, she also emphasised that in the light of the authorities such as Beedie [1997] 2 Cr App R 167, it was now too late to prosecute William Tudor for manslaughter. Any attempt to do so would inevitably be stayed as an abuse of process.

In the light of this change of heart by the DPP, but recognising that no fresh prosecution could now be mounted, the applicant seeks to reopen the inquest instead. The court has the power to order a fresh inquest in certain circumstances identified in section 13 of the Coroners Act 1988. This states as follows:

(1)

This section applies where, on an application by or under the authority of the Attorney-General, the High Court is satisfied as respects a coroner (“the coroner concerned”) either—

(a)

that he refuses or neglects to hold an inquest which ought to be held; or

(b)

where an inquest has been held by him, that (whether by reason of fraud, rejection of evidence, irregularity of proceedings, insufficiency of inquiry, the discovery of new facts or evidence or otherwise) it is necessary or desirable in the interests of justice that another inquest should be held.

(2)

The High Court may—

(a)

order an inquest or, as the case may be, another inquest to be held into the death either—

(i)

by the coroner concerned; or

(ii)

by the coroner for another district in the same administrative area;

(b)

order the coroner concerned to pay such costs of and incidental to the application as to the court may appear just; and

(c)

where an inquest has been held, quash the inquisition on that inquest.”

The application can only be made with the consent of the Attorney General, which has been granted.

The Coroner has chosen to take a neutral stance in these proceedings although he did make observations to the Attorney General suggesting that consent to pursue this application should not be granted, and he has made those observations available to the court. Moreover, we have received and considered some written submissions from the solicitors for William Tudor, who is an interested party. In the result, we heard oral submissions only from counsel for the applicant, Mr Powell.

The discretion under section 13 is a broad one, and it is to be noted that the specific reasons set out in section 13(1)(b) are not exhaustive. But, in my view, the kind of error envisaged is one which casts doubt on the integrity of the proceedings themselves, or raises concerns whether the verdict was reached on a proper consideration of all relevant evidence.

Mr Powell, in an attractive submission, says that the Coroner went wrong in law in being unwilling to conclude that William Tudor would not have foreseen a serious and obvious risk of death. Mr Heywood’s analysis can be seen to cast considerable doubt on this evaluation of the evidence. The Coroner made the same mistake as the CPS had originally done. It is said that had the Coroner been aware of the change of approach by the DPP resulting from Mr Heywood’s opinion, it would inevitably have influenced his verdict. However, the evidence was not available at that time. It is either fresh evidence or a new fact within the meaning of section 13 and the interests of justice would justify quashing the original inquisition and ordering a fresh inquest.

I do not accept that Mr Heywood’s opinion can properly be described either as a new fact or relevant fresh evidence. It does not in any way alter the factual basis on which the Coroner reached his conclusion. Indeed, Mr Heywood’s opinion, which gave rise to the DPP’s shift in position, would not be admissible before the Coroner. It is for the Coroner to assess and reach a verdict on the evidence. It would be improper for him to follow the analysis of Mr Heywood. I would add that the fact that the CPS now considers that there was a case of gross negligence manslaughter to answer does not in any event demonstrate that the Coroner reached an improper conclusion when he held, applying the criminal standard of proof beyond reasonable doubt, that he was not satisfied that a verdict of unlawful killing could be sustained.

Mr Powell also submitted that the Coroner reached his verdict in relation to unlawful killing having regard to the original decision of the DPP not to prosecute for manslaughter. There is nothing in the Coroner’s verdict which would sustain that analysis, and it would be unlawful for the Coroner to be influenced in that way. Moreover, in his observations to the Attorney General the Coroner specifically denied that he had felt bound by the then views of the CPS.

In my judgment the real complaint about the verdict is that the Coroner reached a conclusion that was not properly open to him on the evidence. In substance Mr Powell is submitting that the only proper conclusion was that a reasonably prudent man in the position of William Tudor would have appreciated that there was a serious risk of death. But it did not take Mr Heywood’s opinion to identify that potential ground of challenge. A timely application for judicial review to challenge the verdict on that basis could have been mounted without the benefit of Mr Heywood’s opinion. I do not say that the application would necessarily have succeeded, but it could have been made.

Mr Powell submits that the test under section 13 should simply be whether justice has been done or not. He relies upon comment of Simon Brown J, as he was, in Re Tabarn CO/1387/97 who said, with respect to the predecessor of this section, that “there are no longer any absolute principles in play, save only perhaps that the interests of justice must be a cardinal consideration.” Mr Powell also relies upon the following observation of Talbot J in R v Divine ex parte Walton [1930] 2KB 29,37:

“But if the inquest has been so conducted, or the circumstances attending it are such that there is a real risk that justice has not been done, a real impairment of the security which right procedure provides that justice is done and is seen to be done, the Court ought not to allow the inquisition to stand.”

I do not accept that these judges were intending to say that the interests of justice would be engaged, and section 13 could be invoked, whenever there appears to be a cogent case for judicial review based on an alleged failure by the Coroner properly to apply the law. They were concerned with the narrower context where something has gone wrong with the process or, for one reason or another, the Coroner has not been in possession of all the material facts.

In my judgment, what the applicant is now seeking to do, through this application, is to pursue what is in substance a judicial review application some five years out of time and to secure a fresh inquest without in fact having to establish that there was any error of law by the Coroner which would justify setting aside the original verdict. Mr Powell is suggesting that it is enough that the Coroner may have been acting unlawfully in reaching a conclusion contrary to the evidence. I do not see how the court could properly accede to this application and quash the Coroner’s verdict on that basis.

Even if I am wrong and section 13 is in principle applicable, I do not accept that it would now be in the interests of justice to reopen the inquest. There has been a very significant delay in lodging this application. It would be wrong to allow what is in substance a judicial review application to be pursued some five years out of time. There has to be finality in the process. In addition it is not obvious what wider public interest would now be served in circumstances where the narrative verdict accurately reflects the facts of the case, and the Coroner has made certain recommendations designed to prevent deaths like this occurring in the future. Furthermore, there has been a delay of almost a year between the acceptance by the DPP that the CPS had erred in not prosecuting for manslaughter and the lodging of this application. Mr Powell says that the reason for this lengthy delay is that the parents were focusing their fire on the criminal process and did not have the funds to take judicial review proceedings. I am sympathetic to the difficulties in which they were placed in having to deal with the tragic loss of their son, but these are very substantial delays indeed. However, I emphasise that this is very much a secondary ground for rejecting this application. I would not have acceded to this section 13 application even if it had been brought sooner.

For these reasons I refuse the application.

I agree.