QUEEN'S BENCH DIVISION
B e f o r e :
MR JUSTICE GIBBS
|THE QUEEN ON THE APPLICATION OF SANDRINE AINETO||(CLAIMANT)|
|HM CORONER FOR BRIGHTON AND HOVE||(DEFENDANT)|
|IN THE MATTER OF AN APPEAL UNDER SECTION 13 OF THE CORONER'S ACT 1988 BY SANDRINE AINETO|
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MISS A HEWITT (instructed by Legal Services Brighton and Hove City Council, Kings House, Grand Avenue, Hove BN3 2SR) appeared on behalf of the DEFENDANT
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"5.1 ... It is a well known and documented fact that alcohol seriously affects one's judgment and abilities. It gives a false sense of confidence, reduces co-ordination, slows down reactions and affects judgement of speed and risk. This must be regarded as one of the factors in this incident.
5.2 Had Mr Aineto been simply walking in East Street and was then knocked down by the north bound vehicle, I would have expected to find some evidence to support this, along the lines of that described in paragraph 4.1 above. Had he been already lying in the road, I would have expected to find some evidence of contact to a front wheel on the vehicle. In both cases I would have expected somebody to have noticed his presence before the incident.
5.3 The only area not readily visible to all four persons as the truck drew near 'The Sussex' public house, was the north west side of the pedestrian zone. In this area is an entrance to an arcade and two shop doorways. Mr AINETO could have emerged from here and somehow stumbled into the side of the passing truck, before falling under its rear wheels."
I interpolate that the reference to the "four people" is a reference to four witnesses who were present that night, none of whom apparently saw the deceased.
"So clearly with his pattern of injury, the lack of marks on the vehicle, these indicate the unusual nature of the incident."
A little later, he said:
"But again they were walking down past the Sussex square, past the taxi rank on the other side, towards the pedestrian zone and even they, certainly Mr Meadows in his statement and he emphasised again today, simply was not aware of anybody else in the street. So it remains a mystery where Stephane came from. All we can say is that when the truck struck him or went over him he was lying in the road. He certainly was not standing up because the truck would have hit him with the front of the truck and knocked him over. There is nothing to suggest that that happened."
"Again it emphasises the fact that there remains more unanswered questions than there are questions answered. We simply do not know where Stephane came from, but logic says he must have been somewhere around that side because nobody saw him. It is very unusual for four people not to notice somebody."
In her conclusion, the defendant said:
"So it is left for me to reach a conclusion. The conclusion that I reach is that he died as a result of an accident. Why this happened, one cannot say. It is relevant that he was intoxicated because this would have affected his judgment. Indeed, I think if he had not been intoxicated it would not have happened because, as PC Burt explained, it is almost impossible for him to imagine that Stephane could have misjudged the vehicle so that he fell under the rear left wheel. Could he have walked out across the road and then stumbled? Maybe. We simply do not know. But he did die as a result of an accident."
"(3) If it appears to a coroner, either before he proceeds to hold an inquest or in the course of an inquest begun without a jury, that there is reason to suspect...
(c) that the death was caused by an accident, poisoning or disease notice of which is required to be given under any Act to a government department, to any inspector or other officer of a government department or to an inspector appointed under section 19 of the Health and Safety At Work etc Act 1974...
He shall proceed to summon a jury in the manner required by subsection (2) above."
"3(1) Subject to regulation 10, where-
(a) any person dies as a result of an accident arising out of or in connection with work; the responsible person shall-
(i) forthwith notify the relevant enforcing authority thereof by the quickest practicable means; and...
(2) The requirements of regulations 3 and 4 relating to the death or injury of a person as a result of an accident, shall apply to an accident arising out of or in connection with the movement of a vehicle on a road only if that person-
(a) was killed or suffered an injury as a result of exposure to a substance being conveyed by the vehicle; or
(b) was either himself engaged in, or was killed or suffered an injury as a result of the activities of another person who was at the time of the accident engaged in, work connected with the loading or unloading of any article or substance onto or off the vehicle."
"As I stated in paragraph 3 of my first statement, when I was first informed of Mr Aineto's death, on the 31st July 2001, I was also made aware that he had apparently been killed when in contact with a rubbish collection dustcart. In view of the involvement of the dustcart I did consider that this was a case which the Health and Safety Executive ("HSE") may wish to investigate itself. Within two or three days I therefore asked my officer, Theresa Bromage, to inform the HSE of the death. I do not hesitate to involve the HSE in appropriate cases, and I find their investigations and attendance at inquests are of great assistance.
Mrs Bromage reported to me that she had contacted the HSE by telephone and had informed them of Mr Aineto's death and its circumstances. They indicated to her, during the conversation that they did not need to become involved in the investigation. I knew the events surrounding the death would be thoroughly investigated by the Police Crash Investigation Unit, and that I would be able to hear evidence of that investigation at the inquest. However, had that police investigation or any other evidence which subsequently came to my attention made me think that the HSE ought to be contacted again, then I would not have hesitated to have done this, as I have in the past."
"Secondly, the phrase which is the preamble to the specific provisions of subsection (3), 'there is reason to suspect,' does not require positive proof or even formulated evidence. The question is usually to be decided at a preliminary stage although, as indicated in the subsection, it may arise for decision during the inquest. Therefore, any information giving 'reason to suspect' will suffice."
I should add that the HSE has now confirmed in writing that it believes that the incident was reportable under the regulations: see, for example, its letter to the Public Law Project of 31st October 2002. This expression of opinion, made with the benefit of hindsight, must be treated with caution. But it fortifies me in the conclusion that I have reached for the reasons that I have given.
Does it follow that the defendant's verdict should be quashed and a fresh inquest ordered? Mr Soorjoo submits that this is what we should order. Miss Hewitt does not urge to the contrary. She submits that it is a matter for the discretion of the court. But she does contend that on the material presently available, there is no realistic prospect that any jury would bring in a verdict other than one of "accidental death". I recognise the force of counsel's submissions, but I am in doubt that there should be a fresh inquest. I accept that the court could exercise its discretion in a case such as this not to order a fresh inquest, even though the Coroner should have sat with a jury. But the failure to summon a jury was a serious procedural irregularity. In my judgment, there need to be cogent reasons to deny a fresh inquest with a jury when the court decides that the first inquest should have been conducted with a jury. The question therefore is whether there are sufficiently cogent reasons to justify that course in the present case. Leaving the section 8(3)(c) point aside, I have not discussed the detailed grounds advanced in support of the claim for judicial review and the section 13 application. The defendant has answered each one of these grounds and it is quite possible that the claimant would not have made good all or even any of them if they had been fully argued out.
"Now that the matter has been brought to our attention, you may be assured that we will fully investigate the circumstances in relation to the relevant health and safety law and any safety lessons to be learned."
Then on 1st August 2002 they wrote to the Centre for Corporate Accountability:
"The investigation has progressed well, and we have obtained some of the relevant documentation that had previously not been discovered...
The vehicle involved in the incident has been inspected by one of HSE's Specialist Inspectors. We have taken action in relation to the continued use of this vehicle in its current role, and this has led to improvements in the overall safety of the vehicle in relation to public safety."
On 31st October they wrote, as I have said, to the Public Law Project, saying:
"The documents requested have been obtained in relation to an ongoing criminal investigation. They are not in the public domain, and cannot therefore be disclosed...
Legal proceedings are still under consideration, and therefore I am able to provide further information at this stage."
"I have not separated what has been done since December. The lines of investigation are complex and form part of a continuing process so I am not able to break each activity down in the way you have requested. As you know the legal action that is being pursued in relation to the inquest will have implications on the timing of the completion of our work in relation to this incident."
Similar letters were written on 12th and 16th May. Since then there has been a limited disclosure of documents by the HSE, but it seems to be common ground that there is nothing in those documents which sheds any light material to the issues with which these applications are concerned. There is no doubt that the HSE is still withholding a good deal of potentially relevant material.
"If it appears to a Coroner that in the case of a body lying in his district an inquest must be held but is expedient that it be held by another, then jurisdiction can be transferred."
That clearly foresees therefore the beginning of the process where jurisdiction is engaged by the presence of a body. Whether this order can be seen as effectively treating this case as a de nova position and is therefore in that position, therefore the defendant could make use of this section in order to assist, and by that means have the jurisdiction transferred to a Coroner in a different administrative district, if that interpretation----