Practice and Procedure

R (O?Connor) v HM Coroner for the District of Avon (Visser intervening) [2009] EWHC 854 (Admin); [2009] WLR(D); [2009] WLR (D) 150

PUBLISHED May 13, 2009

CORONER ? Inquest ? Verdict ? Person whose actions led to child?s death acquitted of manslaughter by foreign court on finding of temporary insanity ? Whether person?s mental state relevant for purposes of verdict of unlawful killing ? Appropriate standard of proof where issue of insanity raised on evidence ? Coroners Act 1988, s 16

R (O?Connor) v HM Coroner for the District of Avon (Visser intervening) [2009] EWHC 854 (Admin); [2009] WLR(D); [2009] WLR (D) 150

QBD: Sir Anthony May P, Dobbs J: 7 May 2009

The test for a verdict of unlawful killing was not exclusively objective, it being necessary to find at least the mental element necessary for a criminal conviction of assault; and insanity, if properly raised on the evidence, had to be disproved to the criminal standard to sustain such a verdict.

The Divisional Court of the Queen?s Bench Division so held when allowing a claim by Christine O?Connor for judicial review of a verdict of unlawful killing delivered on 27 March 2008 by the defendant, HM Coroner for the District of Avon, and quashing the verdict.

The deceased, who was the son of the claimant?s brother, H, had died from injuries sustained in falling from the balcony of a hotel in Greece. H had pushed the boy and his sister off the balcony before throwing himself after them. H was acquitted of manslaughter by a Greek court on the basis of psychiatric evidence to the effect that feelings generated by the prospect of being left by his wife, the intervener in the claim, following a marital row and being separated from their children had activated a psychosis constituting temporary schizophrenia. After a non-jury inquest in England the coroner delivered a verdict of unlawful killing. The claimant contended that the coroner had erred in law in disregarding the evidence of H?s mental state, and asked the court to substitute a narrative verdict descriptive of the circumstances of death.

SIR ANTHONY MAY P, handing down the judgment of the court, said that the outcome of the Greek criminal proceedings did not bind the coroner since s 16 of the Coroners Act 1988 did not apply to criminal proceedings outside the jurisdiction of England and Wales. However, a coroner?s verdict of unlawful killing predicated a finding equivalent to that required for a conviction of at least manslaughter in a criminal trial. The authorities established that such a conclusion could not be reached unless the coroner or jury was so satisfied to the criminal standard of proof. In manslaughter, as in every crime except those of absolute liability, there must always be a guilty mind. The coroner had erred in his reasoning when he said that consideration of the actor?s mental state was not required and that it was irrelevant for the purposes of his verdict whether the actor was capable of understanding his acts. The verdict could not stand. The court could notsubstitute its own decision pursuant to s 31(5A) of the Supreme Court Act 1981, as inserted by s 141 of the Tribunals Courts and Enforcement Act 2007, as the claimant requested, unless, without the error of law, only one conclusion could have been reached by the coroner; but it was not possible on the evidence for the court so to hold if the correct approach to the issue of insanity was applied. The submission that the standard of proof should be analogous to that in a criminal trial was to be rejected. The burden of establishing insanity in a criminal trial was on the defence, on the balance of probabilities. At an inquest, there was no defendant and therefore no one upon whom the relevant burden of proof might lie. It was not fair that a person should risk the stigma of a finding of unlawful killing, even if the verdict technically concealed his identity, without the safeguards that he would have in a criminal trial and without the right to have it argued on his behalf that he was legally insane when he perpetrated the otherwise unlawful act. Insanity, if properly raised on the evidence, had to be disproved to the criminal standard to sustain a verdict of unlawful killing. Accordingly, the matter should be remitted for further consideration.

Appearances: James Badenoch QC and Matthew Barnes (Withy King, Trowbridge) for the claimant; Hugh Mercer QC (Head of Democratic and Legal Services, Bristol City Council) for the defendant; Gareth Patterson and Victoria Ailes (Lovells) for Natasha Visser, intervening.

Reported by: Alison Crail, barrister