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CORONERSí LAW RESOURCE
Neutral Citation Number:  EWHC ADMIN 170
IN THE HIGH COURT OF JUSTICE††CO/2554/2000
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London WC2
Friday, 2nd March 2001
B e f o r e:
MR JUSTICE SULLIVAN
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HM CORONER DISTRICT OF AVON
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Computer-aided Transcript of the Stenograph Notes
of Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2HD
Telephone No: 020 7421 4040/020 7404 1400
Fax No: 0207-831 8838
(Official Shorthand Writers to the Court)
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MS HATFIELD (instructed by Christian Fisher, 42 Museum Street,
Bloomsbury, London, WC1A 1LY) appeared on behalf of the applicant
The respondent did not attend and was not represented
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J U D G M E N T
(As approved by the Court)
Friday, 2nd March 2001
1. MR JUSTICE SULLIVAN: This is an application for certiorari to quash an inquisition following an inquest held on 19th April 2000 by Her Majesty's Coroner for the District of Avon into the death of Catherine Whitley, and for an order directing that a fresh inquest be held before a different coroner. At the conclusion of the hearing on 28th February I granted the relief sought in the application. I now explain the reasons for my decision.
Prior to the Inquest
2. The claimant is Catherine's brother. Catherine was 22 years old when she died on 17th December 1999. She was a known heroin user. In a letter to the Coroner, her GP said that she was trying to come off heroin and experiencing withdrawal symptoms during the summer of 1999. At that time she had been prescribed methadone.
3. On 29th November 1999 she was arrested and charged with an offence of supplying heroin. Initially, bail was refused and she was remanded in custody on the basis that she was a drug user and no bail hostel with appropriate facilities was available. Two bail hostels were approached but declined to take her for this very reason. Eventually, the Ashford House Bail and Probation Hostel in Bristol, a hostel holding itself out as possessing expertise in dealing with drug users, agreed to take her and she was granted conditional bail on 10th December 1999.
4. The bail conditions were threefold: she had to reside at the hostel, comply with a 6pm-6am curfew, and abide by the rules of the hostel. Those rules incorporated the hostel's "no drugs" policy.
5. A week after she arrived at the hostel, on the evening of 17th December 1999, she was found collapsed in a communal toilet, a hypodermic syringe was found nearby. She was taken by ambulance to hospital and certified dead at 22.41 that night. In the opinion of the consultant pathologist, who performed a post mortem examination, the cause of her death was acute morphine toxicity. A toxicological report stated that the amount of free morphine in her blood was 942 micrograms/litre and commented that:
"Blood free morphine levels greater than 120 micrograms/litre are frequently attributable to recent heroin injections."
6. Her family instructed solicitors who wrote to the Coroner's Office on 29th February saying that they understood that an inquest had been fixed for 14th March. Since the family had received no information relating to the inquest, they sought an adjournment. The letter continued:
"Whilst writing, we would also ask for the following -
7. In response, a letter dated 13th March from the Coroner's Office stated that the inquest would be held on 19th April. No further information was provided, in particular there was no answer to the request for documents. There had been a telephone conversation on 1st March in which the claimant's solicitors were told that the documents requested would not be provided.
8. On 17th March the solicitors wrote to the Coroner saying (inter alia):
"We would be grateful if you would reconsider your decision. It has been our experience that the Advance Disclosure of witness statements and other documentation relevant to the Inquest have led to Inquests being a lot more focused on the issues that are relevant and avoids 'bad points' being taken by Counsel at the inquest.
It would also mean that the family has advance notice of any evidence, which may be extremely distressing if being heard for the first time in Open Court.
We are happy to provide a suitable form of undertaking should this assist.
We understand that Ms Whitley died whilst in a Bail Hostel. In the circumstances, we would also be grateful if you would indicate whether there has been an internal enquiry within the Probation Service and whether this report has been disclosed to you."
9. On 13th April, a few days before the inquest, they wrote:
"Although we have not received a substantive response to this letter we did receive a telephone message informing us that the only witness that the Learned Coroner intends to call is the police officer and that the Coroner is unwilling to release any witness statements.
We would be grateful if you would fax us a copy of the witness statement from the police officer whom it is intended to call at the Inquest.
We would also ask for a reconsideration of the points raised in our letter of 17th March 2000..."
10. By 17th April, not having received any reply, they wrote again to the Coroner:
"We have spoken to Catherine of the Coroner's office today who has confirmed that the only witness it is intended to call is PC Graham who shall be reading a report into the death of Catherine Whitley.
We are writing to express our concern at the lack of disclosure given in this Inquest. We appreciate that the Inquest on Wednesday is Inquisitorial and that it is for the Learned Coroner to decide which witnesses he intends to call and which questions to ask. However, the family of Catherine Whitley is concerned about the circumstances leading to her death namely that heroin was available in a Bail Hostel, which is supposed to have a drugs free policy. In fact, we understand that Catherine was specifically refused a place in two Bail Hostels, which would not take her due to her drugs problem. The reason why this Hostel was chosen was due to its 'expertise' in dealing with individuals who are drug users. Further, on the evening of 17th December Mrs Whitley (Catherine's mother) telephoned the Bail Hostel as she was concerned about Catherine. She spoke to a female officer who confirmed that Catherine had arrived back safely and was perfectly well and that Mrs Whitley had nothing to worry about.
We also understand that it is customary for there to be an investigation when there is a death in a Bail Hostel. There has recently been public concern about the availability of drugs in Bail Hostels, which is clearly relevant to 'how' Catherine died and also with regard to any Rule 43 recommendations, which the Learned Coroner may wish to make at the conclusion of the Inquest.
In the circumstances, we would ask the Learned Coroner to reconsider his previous decision at once and forward us relevant documentation including witness statements or even a summary of the evidence which it is intended to be given this Wednesday.
Counsel ... is able to attend the Coroner's Court early on Wednesday to read any documentation should preparing a summary or photocopying documents be of practical difficulty."
11. On 19th April, the day of the inquest, the claimant's solicitors received a letter from the Coroner dated 18th April. It stated that he had been on holiday and continued:
"First, 'how' is to be understood as meaning 'by what means'. It is noteworthy that the task is not to ascertain how the deceased died, which might raise more general and far-reaching issues, but 'how ... the deceased came by his death, a more limited question directed to the means by which the deceased came by the death' (per Sir Thomas Bingham, M.R.) R v N. Humberside Coroner  3 All ER p989 letter h.
Secondly, the evidence before me suggests lack of competence, differing and ignorance of facts. Hence, my decision to call the investigating officer to cover the matter."
12. Having referred to the findings of the pathologist and the toxicologist, which I have set out above, the Coroner said that statements had been taken from two fellow residents of the hostel, whom I shall call "L" and "C", from Mr Ashby, the Assistant Manager of the Hostel, and from Catherine's GP. He invited PC Graham, who had taken the first three of those statements, to read them out.
13. Counsel representing the family asked if it would be possible to have a copy of the documents. According to the Coroner's notes of the inquest, his response was "We'll try and organise that afterwards". In a witness statement, counsel representing the family states that the Coroner's notes are not an accurate portrayal of the inquest. In particular, they fail to reflect the impatience shown by the Coroner in response to her requests: he did not want to hold up PC Graham. PC Graham then read through the three statements which he had taken.
14. In summary, "L" said that she had been told by another resident at the hostel, "J", that he had given Catherine a ,,5 bag of "smack", and he asked "L" to go over to the female annex and check on her. She did so, and having forced the door, found Catherine on the floor of a toilet, "her body was completely lifeless and she was not responding to our calling." She went for help.
15. Mr Ashby said that a colleague had checked on Catherine at around 8 o'clock in the evening to make sure she was abiding by the curfew. He was called by "L", who was very upset and in a distressed state, at around 10 pm and found Catherine face down on the floor, it looked as though she had been pulled out of the toilet into the corridor. Her skin colour had turned blue and in his opinion she looked seriously ill. An ambulance was called. Mr Ashby spoke to the ambulance operator who instructed him on how to give first aid to Catherine. He gave "what I believe is called CPR chest massage" as instructed by the ambulance operator. He saw a hypodermic syringe on the floor and it was taken away by the ambulance crew when they arrived at around 10.15 pm. He added that he did not know Catherine very well at all, but her file showed that she was an intravenous heroin user.
16. "C" said that he had been told by "J" that Catherine paid him ,,15 to go and buy heroin for them, he had done so, prepared two syringes and given one to Catherine. "C" was concerned so he asked "L" to go and check on Catherine.
17. PC Graham then read out his own report. He had been told by the hospital staff that Catherine had arrived at the hospital at 22.30 and that a Dr King had pronounced life extinct at 22.41. He had interviewed "J". Staff at the hostel had told him that they had doubts over the motives and competence of "C" as a potential witness: he was close friends with "L" and they had discussed the matter together. PC Graham's report concluded:
"With the lack of competence of both key witnesses and the differences in their accounts of the alleged supply by J ... it was decided that there was insufficient evidence to show a prima facie case against J. Hence he was charge refused for the supply allegation."
18. When PC Graham finished reading the statements and his report, the Coroner asked counsel if she had any questions. Understandably, since the family had only just heard the statements read out, counsel said that she was in some difficulty. She tried to raise the possibility of a recommendation being made under Rule 43 of the Coroners' Rules 1984 (the "Rules") to which the Coroner responded:
"Powers under Rule 43 are at my discretion, and my discretion alone."
19. According to the Coroner's notes, there then followed this exchange:
"COUNSEL: That's right, sir, it's also your duty sir, as stated in the authority you referred us to, to investigate fully the facts. Sir, Catherine Whitley was put into a bail hostel that specialised in treatment of drug offenders, that's the only reason she got bail.
CORONER: Before we start all this, have you any questions of the Officer first of all?
COUNSEL: Yes, I do.
CORONER: Would you like to present those first then please, rather than keep him waiting in the box."
20. Counsel attempted to ask PC Graham questions. It is unnecessary to set out his responses because, for understandable reasons, he was not in a position to assist the inquest as to, for example, the extent of drug dealing that was going on at the hostel, the extent to which Mr Ashby was aware of what was going on, how long he had spent trying to resuscitate Catherine, whether he had any training in resuscitation, and so forth.
21. Faced with the inability of PC Graham to assist, counsel then sought an adjournment so that a witness from the hostel could be called to give evidence to the inquest. She submitted that such a death was a matter of acute public interest if it occurred in a bail hostel that specialised in treating drug offenders. She submitted that this was a situation that was "suitable for a recommendation under Rule 43", but acknowledged that this was "probably not possible because we haven't heard enough."
22. An adjournment was not granted, no reason was given, and the Coroner proceeded to record a verdict of Accidental Death due to drug overdose, saying:
"... she was temporarily residing at a bail hostel in Kingsdown, she was found unconscious at the premises with a hypodermic syringe nearby, and was taken to the hospital, where she died. The cause of death was: Acute morphine toxicity, the level of blood free morphine was 942 micrograms per litre, that being the cause of death. There were no eye witnesses to what occurred. The witnesses that were there have been looked upon and viewed as not competent, and indeed, conflicting, and also drug abusers."
After the Inquest
23. On 11th July, the claimant's solicitors wrote to the Coroner stating that they had been instructed to apply for judicial review. The letter explained the grounds for applying for judicial review, which included:
"The decision by the Coroner to call only PC Grove [Graham] to give evidence who then read out a number of statements from his investigation. On reading the witness statement of Mr Richard Ashby, the bail hostel Assistant Manager, Counsel for the family asked the Coroner to adjourn the Inquest so that Mr Ashby could give live evidence and answer questions in relation to the first date (sic) given to the deceased, to hear whether appropriate First Aid would have prevented or delayed her death and discover what, if any, First Aid facilities were available at the Bail Hostel and staff training in relation to that. These were all questions which the Investigating Officer was unable to answer. Notwithstanding this, the Coroner refused this request.
The family are concerned that despite the Coroner being aware prior to the Inquest that the evidence before him 'suggests lack of [competence]', he nevertheless failed to call any witnesses who could deal with the questions raised in relation to that. Further, in the minimum, the First Aid administered and training for staff dealing with vulnerable people such as the deceased must be matters necessitating enquiry as to whether they were acts or omissions directly responsible for the death."
24. They asked for the Coroner's comments within seven days, failing which an application for permission would be made. No comments were forthcoming, so the application for permission to apply for judicial review was made. On 1st August the Coroner sent the solicitors his Notes of Evidence together with a copy of the Inquisition and the various statements and reports that they had been requesting since 29th February.
25. Permission to apply for judicial review was granted on 27th October and the claimant's solicitors wrote to the Coroner on 6th November informing him of the grant of permission and enclosing relevant documents. Despite repeated reminders, enquiring whether the Coroner intended to file any evidence and pointing out that the court bundle had to be lodged on 7th February 2001, no response was received from the Coroner until 6th February 2001. His letter of that date simply dealt with a complaint that there had been a breach of Rule 57(1) of the Rules, pointing out, correctly, that this rule deals with matters post, not pre-inquest. Following further reminders, the Coroner replied on 14th February that he had been abroad, and was now going through the court bundle. On the following day, 15th February, in a letter sent to the claimant's solicitors but not to the Administrative Court Office the Coroner confirmed that he did not intend to present any further evidence. His letter continued:
"However, I would be grateful if the following observations could be taken into account.
26. The Coroner then referred again to Rule 57, and stated:
"It had been judicially recognised that there is no rule, nor requirement, upon a Coroner to disclose material before the inquest."
27. And added:
"Rule 37 was complied with by the statements being read out at the inquest."
28. The Coroner was not represented at the hearing before me. On behalf of the claimant, Ms Hatfield (who did not appear at the inquest) submitted that I should not take the Coroner's "observations" into account, given the form in which they been provided (unsupported by a witness statement) and the time at which they had been provided (less than two weeks before the hearing), but she very properly drew them to my attention.
29. Legal Framework
30. The functions of a coroner and the conduct of an inquest are regulated by The Coroners Act 1988 (the "Act"), and the Rules. The duty to hold an inquest arises under section 8(1):
"Where a coroner is informed that the body of a person ... is lying within his district and there is reasonable cause to suspect that the deceased -
(a) has died a violent or an unnatural death;
(b) has died a sudden death of which the cause is unknown; or
(c) has died in prison or in such place or in such circumstances as to require an inquest under any other Act, then, whether the cause of death arose within his district or not, the coroner shall as soon as practicable hold an inquest into the death of the deceased either with or, subject to subsection (3) below, without a jury."
31. Subsection (2) deals with inquests with a jury. Subsection (3) provides for an inquest with a jury if a death occurs (inter alia) in prison or in police custody. Section 11, so far as material, 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...
(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..."
32. Under the Rules, the Coroner, if he is given the necessary particulars, must notify the date, hour and place of the inquest to:
"(a) the spouse or a near relative or personal representative of the deceased ... and
(b) any other person who -
(i) in the opinion of the coroner falls within Rule 20(2)."
33. Rule 20 provides as follows:
"(1) Without prejudice to any enactment with regard to the examination of witnesses at an inquest, 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 counsel or solicitor;
Provided that -
[(a) is not material for present purposes]
(b) the coroner shall disallow any question which in his opinion is not relevant or is otherwise not a proper question.
(2) Each of the following persons shall have the rights conferred by paragraph 1:
(a) a parent, child, spouse or any person representative of the deceased;
(h) any other person who, in the opinion of the coroner, is a properly interested person."
34. Rule 36 deals with the matters to be ascertained at an inquest and is as follows:
"(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;
(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."
35. Rule 37 deals with documentary evidence:
"(1) Subject to the provisions of paragraphs (2) to (4), the coroner may admit at an inquest 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.
(2) Documentary evidence so 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.
(3) Subject to paragraph (4), before admitting such documentary evidence the coroner shall at the beginning of the inquest announce publicly -
(a) that the documentary evidence may be admitted, and
(b) (i) the full name of the maker of the document to be admitted in evidence, and
(ii) a brief account of such document, and
(c) that any person who in the opinion of the coroner is within Rule 20(2) may object to the admission of any such documentary evidence, and
(d) that any person who in the opinion of the coroner is within Rule 20(2) is entitled to see a copy of such documentary evidence if he so wishes.
(6) Any documentary evidence submitted under this Rule shall, unless the coroner otherwise directs, be read aloud at the inquest."
36. Rule 42 provides:
"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."
37. And rule 43 reads:
"A coroner who believes that action should be taken to prevent the recurrence of fatalities similar to that in respect of which the inquest is being held may announce at the inquest that he is reporting the matter in writing to the person or authority who may have power to take such action and he may report the matter accordingly."
38. The statutory background is described and analysed in considerable detail in the judgment of the Court of Appeal in R v HM Coroner for N. Humberside & Scunthorpe, ex parte Jamieson  QB 1 at page 23-24. Sir Thomas Bingham, Master of the Rolls (as he then was), said this under the heading of "General Conclusions":
"(1) An inquest is a fact-finding inquiry conducted by a coroner, with or without a jury, to establish reliable answers to four important but limited factual questions. The first of these relates to the identify of the deceased, the second to the place of his death, the third to the time of his death. In most cases these questions are not hard to answer but in a minority of cases the answer may be problematical. The fourth question, and that to which evidence and inquiry are most often and most closely directed, relates to how the deceased came by his death. Rule 36 requires that the proceedings and evidence shall be directed solely to ascertaining these matters and forbids any expression of opinion on any other matter.
(2) Both in section 11(5)(b)(ii) of the Act of 1998 and in rule 36(1)(b) of the Rules of 1984, 'how' is to be understood as meaning 'by what means'. It is noteworthy that the task is not to ascertain how the deceased died, which might raise general and far-reaching issues, but 'how ... the deceased came by his death', a more limited question directed to the means by which the deceased came by his death.
(5) 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.
(13) It is for the coroner alone to make reports with a view to preventing the recurrence of a fatality. That is the effect of rules 36(2) and 43.
(14) It is the duty of the coroner as the public official responsible for the conduct of inquests, whether he is sitting with a jury or without, to ensure that the relevant facts are fully, fairly and fearlessly investigated. He is bound to recognise the acute public concern rightly aroused where deaths occur in custody. He must ensure that the relevant facts are exposed to public scrutiny, particularly if there is evidence of foul play, abuse or inhumanity. He fails in his duty if his investigation is superficial, slipshod or perfunctory. But the responsibility is his. He must set the bounds of the inquiry. He must rule on the procedure to be followed. His decisions, like those of any other judicial officer, must be respected unless and until they are varied or overruled."
39. In R v Inner South London Coroner, ex parte Douglas-Williams  1 All ER 344 Lord Woolf, Master of the Rolls (as he then was), having referred to the Jamieson case, and drawn attention to the fact that it was not the function of an inquest to determine criminal or civil liability or to apportion guilt or attribute blame, added this at page 384a:
"This is not to detract from the importance of the role of the inquest. In particular where someone dies in custody, as here, an inquest can provide the family with the only opportunity they will have of ascertaining what happened. In addition, as [counsel] contends, an inquest's verdict can have a significant part to play in avoiding the repetition of inappropriate conduct and in encouraging beneficial change."
The Claimant's Submissions
40. The claimant's challenge is based upon the following grounds. Firstly, it is submitted that in permitting PC Graham to read out the statements he had obtained from "L", "C" and Mr Ashby, and in admitting the statement of the pathologist and toxicologist, the Coroner acted in breach of rule 37. There was no suggestion that the makers of these statements were unable to give oral evidence within a reasonable time, (see rule 37(2)), and the Coroner's own notes demonstrate that the requirements of rule 37(3) were not complied with. Before admitting the evidence, the Coroner did not give a brief account of the documents, tell the family that, as persons within rule 20(2), they could object to the admission of evidence in documentary form, and did not tell them that they were entitled to see a copy of the documents if they wished. The purpose of rule 37(3)(d) was to enable a rule 20(2) party to see the documentary evidence so that he could make an informed decision as to whether to object to the information contained therein being admitted in that form rather than by way of oral evidence. The suggestion that the documents might be provided "afterwards" (after the close of the inquest) was of no practical assistance in that regard.
41. The family, having no prior knowledge of what was in the documents, could not sensibly do anything other than object to their being received in evidence and ask for a witness or witnesses to be called to give oral evidence.
42. In R v Southwark Coroner, ex parte Hicks  1 WLR 1624, Groom-Johnson LJ, having referred at page 1629 C-D to the "safeguards and restrictions on the use of documents" contained within rule 37 said that:
"The use of and reference to documents is therefore narrowly circumscribed."
43. At page 1638 B Peter Pain J, dealing with a suggestion that a doctor should have been allowed to read certain notes, said this:
"For myself I would not regard it as a suitable course unless the notes recorded matters about which there was no dispute. On any issue that required more careful examination it would be right to have oral evidence from the person who made the note.
In dealing with the records that were not in court, the coroner outlined the difficulties that might occur and said:
'The mere administrative exercise of bringing documents to court from elsewhere might well have occasioned adjournment of the inquest to a different day. This would have meant reconvening the inquest with a new jury and therefore starting afresh.'"
44. The judge continued:
"I cannot accept this reason. It is the duty of a coroner to make proper inquiry, no matter the inconvenience that may be caused in doing so.
The coroner reiterates the possibility of inconvenience in dealing with witnesses when he said:
'In considering the question which arose during the inquest of calling additional medical witnesses I again weighed the assistance which they could possibly give against the dislocation of the inquest which calling them would have entailed. Had these witnesses been in the corridor outside the court I would have permitted them to be called. As they were not, to call them would have meant adjournment to a new date and in practice reconvening with a different jury.'"
45. Peter Pain J continued:
"It seems to me that since the coroner would have permitted the calling of the witnesses, they were witnesses whom he regarded as relevant. To exclude relevant witnesses in order to avoid an adjournment cannot possibly be justified."
46. Ms Hatfield accepts that the court would not exercise its discretion to quash the inquisition if there had been a "technical" breach of rule 37, for example, if documentary evidence that was not in fact disputed was admitted without there having been any inquiry as to whether there was any objection from a rule 20(2) person. But, in the present case, she submits as her second ground of challenge that the Coroner's reliance upon documentary evidence resulted in an investigation which was "superficial, slipshod or perfunctory" (see Jamieson at page 26 (above)). She acknowledged that Catherine's death did not take place in custody. It did, however, occur in a bail hostel which purportedly specialised in the treatment or management of drug abuse. Indeed, the deceased had been remanded in custody in view of the lack of an available bail hostel which had appropriate facilities in view of her vulnerability as a young drug user. It was only upon the finding of a place in the Ashford House Bail Hostel that the deceased was on 10th December 1999 granted conditional bail to reside there. The apparent ease with which she obtained drugs whilst a resident at this hostel, and the apparent ignorance of first aid procedures displayed in the statement of the hostel manager Mr Ashby were, she submitted, very relevant to the question of how Catherine came by her death, and required the calling of live witnesses. Further, the "acute public concern" recognised by Sir Thomas Bingham in Jamieson would apply with equal, if not greater force, to deaths in such a hostel, designed as it must have been as a route out of custody for vulnerable young drug users.
47. She referred to the Divisional Court's decision in the R v HM Coroner for Coventry, ex parte O'Reilly unreported 6th March 1996, in which Newman J said at page 9F of the transcript:
"As to whether a sufficient enquiry has taken place ... I take, as a simple starting point, that an inquiry which leaves too many questions unanswered and too many issues unresolved is not a sufficient enquiry."
48. In the light of the Coroner's assertion on the eve of the inquest that the material he had seen suggested there to be a "lack of competence" and "differing and ignorance of facts", his refusal to call any witness to give oral evidence at the inquest left "too many questions unanswered and too many issues unresolved." An inquest which confined itself solely to reading statements from the very witnesses described as lacking competence, being ignorant and offering differing accounts, could not be described as a sufficient inquest.
49. Specifically, the following questions were left unanswered:
(1) Could the very high level of free morphine in Catherine's blood as revealed in the toxicological report be reconciled with the evidence that she had, or had purchased for her, only ,,5 or ,,15 worth of smack?
(2) How was it that she was able to acquire, and inject, a fatal quantity of heroin in a bail hostel with expertise in dealing with drug abuse?
(3) The court had placed her on a 6pm-6am curfew, what system of supervision was in operation at the hostel to ensure (so far as reasonably practicable) that its "no drugs" policy was being obeyed?
(4) What checks were made on her mental state or physical condition at the hostel? On the evening of Catherine's death her mother had telephoned the hostel because she was concerned about her daughter's health, she was reassured by a female officer. Was that reassurance given as the result of any enquiry?
(5) Was Catherine still alive when she was discovered slumped on the floor, might her life have been saved by prompt and effective first aid, did staff at the hostel have any training in first aid to equip them to deal with the consequences of drug overdosage by residents?
50. Ms Hatfield submits that all of these questions are relevant for the purpose of deciding how the deceased came by her death. The answer to questions (1) and (2) might lead on to the further question whether this might have been a case of unlawful killing. Recognising the difficulty in establishing such a verdict she nevertheless submitted that questions (1) to (5) were all relevant matters for the Coroner to consider in deciding whether or not to make a recommendation under rule 43.
51. She accepted that the Coroner had a discretion under rule 43, but submitted that he could not lawfully decide whether to exercise that discretion unless he had conducted a sufficient investigation.
52. Turning to the question of disclosure, she accepted that the Rules do not provide for pre-inquest disclosure and that the Coroner's contention that rule 57(1) related to post-inquest disclosure was correct.
53. In R v HM Coroner at Hammersmith, ex parte Peach QB 211 the Divisional Court rejected a submission that denial of a witness statement in advance of an inquest was a breach of natural justice. Lord Widgery CJ said at page 219:"It is important, I think, to stress that, as far as I know, there never has been a case in which natural justice was invoked through the denial of documents except when the person to whom the documents had been denied was a person against whom some charge was being made. It is elementary that, if a charge is being made against a person, he must be given a fair chance of meeting it. That often means he must be given documents necessary for the purpose. But there is no charge here being made against Mr Peach, the applicant, and to my mind, try as he will, he fails to get himself in through any of these doors."
54. On appeal, the Divisional Court's decision on the substantive issue was reversed, but the challenge to the refusal to provide witness statements in advance of the inquest was not pursued, so the Court of Appeal did not have to consider whether natural justice might require prior disclosure.
55. In Hicks (above) the court rejected a submission that the Coroner should have disclosed prison medical notes before an inquest. It did so at least partly for the reason that the use of and reference to documents was "narrowly circumscribed" by rule 37 (see above). At page 1637 Peter Pain J said this:"I had the impression initially that Mr Blom-Cooper was complaining about the failure of the coroner to provide material before the inquest. But it appeared from the argument as it proceeded that this was not so. The authority of Reg v Her Majesty's Coroner at Hammersmith, ex parte Peach (Nos. 1 and 2) QB 211 makes it plain that there was no right in the family to call for documents. Nor was there any obligation on the coroner to assist Dr Fenwick with the hospital notes that he required as a basis for an opinion."
56. Ms Hatfield submits that there is a growing practice of advance disclosure of, at the very least, the post mortem report and list of witness statements. She points to the practice of voluntary disclosure since 1999 by Her Majesty's Prison Service where inquests are held into deaths in custody. The benefits of advance disclosure were recognised by Newman J at page 12A of the O'Reilly case. In some circumstances fairness may require advance disclosure particularly where, as in the present case, the Coroner proposed to rely on documentary evidence alone. No reason had been given for non-disclosure in advance of the inquest, or at the start of the inquest.
57. Finally, she submitted that the Coroner's decision to have the witness statements read demonstrated that the evidence contained therein was of relevance to the inquest. The Coroner had not given any reason for not requiring the witnesses, or some of them, for example, Mr Ashby, to give oral evidence. His statement at the conclusion of the inquest that "the witnesses that were there have been looked upon and viewed as not competent, and indeed conflicting, and also drug users" did not justify his not calling them to give evidence. The same approach could be seen in the Coroner's "observations" dated 15th February (insofar as they were admissible).
58. It was for the Coroner, not PC Graham, to assess the credibility, reliability and consistency of potential witnesses. The fact that witnesses might give conflicting evidence was certainly not a reason for not calling them, though it might well be a reason for calling them.
59. For these reasons she submitted that the inquisition should be quashed and a fresh inquest held by a different coroner. Because of the inadequacy of the investigation to date, the outcome of a fresh inquest could not be certain. She accepted that it could not be said that a fresh inquest would be likely to lead to a different verdict, but submitted that this was not the appropriate test. The most recent Court of Appeal authority dealing with this aspect of the case is Douglas-Williams (above) in which Lord Woolf said this at page 347e:
"When it comes to exercising this discretion I cannot suggest a better test for a court to apply when deciding whether it should give relief than that it should be 'necessary or desirable to do so in the interest of justice'. The test has to be applied against the background of the statutory functions of an inquest now contained in the 1998 Act and Coroners Rules ... and bearing in mind the further guidance given in R v Divine, ex p Walton  2 KB 29 at 37...:
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Last modified: Monday, 09-Aug-2004 08:53:02 BST by: Malcolm Bishop