Key takeaways
Careful consideration must be given to causation
It must be analysed on the evidence before Article 2 and jury determinations.
Wider scope may be required in inquests
Historic events can be relevant where causation is arguable.
Implications extend beyond policing into healthcare
Providers should prepare for scrutiny of earlier decisions.
Background
Linda O’Brien died on 9 May 2020 after falling from a fourth floor window of her flat. At the time of the fall, Alan McMahon was also in the flat and he was arrested on suspicion of murder. Mr McMahon was never charged but was later convicted for breach of restraining order and theft.
Prior to the death, on 7 April 2020, four police officers had attended Ms O’Brien’s home following a 999 call. Mr McMahon was at the property in breach of a restraining order. The attending police officers were not aware of the order and no arrest was made.
During the course of the coronial investigation into Ms O’Brien’s death, the assistant coroner decided that the scope of the inquest would be confined to 8-9 May 2020. In reaching this decision, he also determined that there would be no jury and that Article 2 was not engaged.
Ms O’Brien’s mother, Sharon O’Brien, sought judicial review of the coroner’s decisions. The High Court dismissed the claim and an appeal to the Court of Appeal was made.
This present judgment concerns the Court of Appeal’s review of matters, which has ultimately quashed the inquest findings on the basis that the coroner prematurely and irrationally determined that there was no causation between the police attendance in April and the death in May.
Court of Appeal decision
The judgment, led by Lord Justice Edis, focuses squarely on the coroner’s assessment of causation, as this was the ground upon which the judicial review was based. Causation is central to decisions about jury and Article 2.
Section 7(2)(b) of the Coroners and Justice Act 2009 requires the coroner to sit with a jury if they have reason to suspect that the death resulted from any act or omission by a police officer. The coroner did not address whether a suspicion was held but instead stated that the death did not result from such an act or omission. Following an analysis of criminal law procedures and relevant factual evidence, the Court of Appeal held that:
“[49] … there is a reason to suspect that the restraining order was there to be seen on the PNC by the officers who attended on 7 April 2020 and that as a result of their failing to see it they omitted to arrest Alan McMahon. They agree that if they had known of the order that would have been their duty and they would have done so. Had they done so there is a proper basis on which an Inquest could determine, without speculation, that Alan McMahon would not have been present in the flat on 9 May 2020. If it is found, as it might be, that his presence made a material contribution to Linda O’Brien’s decision to leave her flat through the window, then there is a basis on which it could properly be found that the omission caused the death.”
In respect of Article 2, the coroner agreed with submissions made by Merseyside Police that there was no arguable breach of the systemic duty as it simply “could not be known” whether an arrest in April would have prevented Mr McMahon’s attendance at Ms O’Brien’s address on the date of death. This, the coroner had concluded, was “pure speculation”.
In no uncertain terms the Court of Appeal unanimously rejected this determination. Lord Justice Edis explains that the coroner should have considered relevant criminal law such as the CPS Code, Sentencing Council Guidelines, and the Bail Act, as well as factual evidence of Mr McMahon’s antecedent criminal history. The Court of Appeal found that if this material was considered by the coroner, they would have found that on the balance of probabilities, arresting Mr McMahon on 7 April would have resulted in his detention at the time of Ms O’Brien’s death.
Conclusion
In conclusion, ‘R (O’Brien) -v- HM Assistant Coroner for Sefton’ is a reminder that early determinations on causation, scope and Article 2 engagement must be approached with particular care. The Court of Appeal has indicated that curtailing those matters without full and proper consideration of relevant material is premature and irrational.
Although the case arose in a policing context, the Court of Appeal’s reasoning has clear resonance for healthcare organisations, where alleged omissions, missed opportunities, or earlier decision-making are frequently scrutinised in inquests. For healthcare providers, this underlines the importance of anticipating that historic clinical events may properly fall within scope, and that arguments seeking to limit inquests on causation grounds must be firmly grounded in the correct legal test.
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