England and Wales High Court (Administrative Court) Decisions

LORD JUSTICE HOLROYDE:

1. Gabriel Kovari died on 28^th August 2014, aged twenty-two. Daniel Whitworth died on 20^th September 2014, aged twenty-one. Inquests into both deaths were conducted by Her Majesty's Senior Coroner for the Eastern Area of Greater London (hereinafter referred to for convenience as the "Coroner"). On 19^th June 2015 she reached an open conclusion in respect of each death. Subsequent to the hearing of those inquests, one Stephen Port was prosecuted for the murders of Mr Kovari and Mr Whitworth and also for the murders of two other young men, Mr Anthony Walgate and Mr Jack Taylor. After a trial before Mr Justice Openshaw and a jury he was convicted of all four crimes. On 25^th November 2016 he was sentenced to life imprisonment with a whole life order.
2. The Coroner now applies pursuant to s.13 of the Coroners Act 1988 for an order that the original inquisition be quashed and a fresh inquest be held in relation to both Mr Kovari and Mr Whitworth. That application is supported by the bereaved families of Messrs Kovari and Whitworth (to whom I shall refer for convenience as the "families").
3. Summarising the written submissions in two sentences, the Coroner submits that it is necessary and desirable in the interests of justice for fresh inquests to be held because further evidence as to the deaths is now available. The families support that submission, and have further submitted in writing that fresh inquests are also necessary and desirable because the initial police investigation can now be seen to have been insufficient.
4. I am grateful to Mr Pleeth and to Mr Leslie Thomas, QC for their submissions, both written and oral, on behalf of the Coroner and the families respectively.

The legislative framework:

5. So far as is material for present purposes, s.13 of the Coroners Act 1988 (as amended) provides 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 or an investigation which ought to be held; or

(b) where an inquest or an investigation 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 an investigation (or as the case may be, another investigation) should be held.

(2) The High Court may -

(a) order an investigation under Part 1 of the Coroners and Justice Act 2009 to be held into the death either

(i) by the coroner concerned; or

(ii) by a senior coroner, area coroner or assistant corner in the same coroner 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 any inquisition on or determination or finding made at that inquest."

6. It may be noted that similar provision was made in s.6 of the Coroners Act 1887, but that section did not include any reference to the discovery of new facts or evidence. Those words were added to the legislation by s.19 of the Coroners (Amendment) Act 1926.
7. An application such as is now made by the Coroner requires the authority of Her Majesty's Attorney General. In relation to each of these deaths, such an authority was given by a fiat dated 16^th May 2017 and signed by Her Majesty's Solicitor General.
8. A number of cases relating to applications of this nature have helpfully been drawn to the attention of the court. The relevant principles are succinctly and clearly stated by Lord Judge, Lord Chief Justice, giving the judgment of the Divisional Court in Her Majesty's Attorney General v. Her Majesty's Coroner of South Yorkshire (West) and Her Majesty's Coroner of West Yorkshire (West) [2012] EWHC 3783 (Admin) at para.10:

"The single question is whether the interests of justice make a further inquest either necessary or desirable. The interests of justice, as they arise in the coronial process, are undefined, but, dealing with it broadly, it seems to us elementary that the emergence of fresh evidence which may reasonably lead to the conclusion that the substantial truth about how an individual met his death was not revealed at the first inquest, will normally make it both desirable and necessary in the interests of justice for a fresh inquest to be ordered. The decision is not based on problems with process, unless the process adopted at the original inquest has caused justice to be diverted or for the inquiry to be insufficient. What is more, it is not a pre-condition to an order for a further inquest that this court should anticipate that a different verdict to the one already reached will be returned. If a different verdict is likely, then the interests of justice will make it necessary for a fresh inquest to be ordered, but even when significant fresh evidence may serve to confirm the correctness of the earlier verdict, it may sometimes nevertheless be desirable for the full extent of the evidence which tends to confirm the correctness of the verdict to be publicly revealed."

9. Counsel, in their written submissions, have invited our attention to earlier case law supporting those principles. I do not think it is necessary for me to do more than mention them briefly. In R v. Divine (ex parte Walton) 1930 2 KB 29 the Court was, as it seems to me, particularly concerned with suggested irregularities in the procedure adopted by the Coroner, which is not a point which arises in this case. In In re Rapier (deceased) [1988] QB 26 the court stated the principle that a fresh inquest may be necessary or desirable in the interests of justice even though it could not be said that the fresh inquest would probably lead to a different verdict. In R (Sutovic) v HM Coroner Northern District of Greater London [2006] EWHC 1095 (Admin) the Court considered circumstances in which a fresh inquest may be necessary or desirable even though the verdict was likely to be the same. R v. West Sussex Coroner (ex parte Edwards) (1992) 156 JP 186 was mentioned to the court as an example of a case in which the likelihood of the same verdict being returned was one of the factors which militated against an order for a fresh inquest.
10. I do not think it necessary to say more about those cases, because the facts to which I now turn lead to a clear conclusion as to the proper application in this case of the principles stated in Her Majesty's Attorney General v Her Majesty's Coroner of South Yorkshire (West) and Her Majesty's Coroner of West Yorkshire (West).

The facts:

11. Summarising matters briefly for present purposes, I begin by noting that Anthony Walgate died on 19^th June 2014. His death was reported to the police when Stephen Port rang the emergency services to report that he had found a man collapsed outside the block of flats where he lived. The account which he gave of his involvement with Mr Walgate was false, and he was subsequently convicted of attempting to pervert the course of public justice by giving that account. He was not, however, viewed as a suspect in the death of Mr Walgate; indeed, the police investigation at that stage concluded that the death was not suspicious.
12. Mr Kovari's body was found in the grounds of St. Mary's churchyard in Barking. That churchyard is close to the block of flats where Stephen Port lived and where Mr Walgate's body had been found. Mr Whitworth's body was later found in the same churchyard. A note was found on him which appeared to be a confession that he had caused the death of Mr Kovari and, as a result, had decided to take his own life.
13. The investigations into those deaths were initially conducted by the Barking and Dagenham Borough Police. They concluded that no charges would be brought against anyone. At the hearing of the inquest in June 2015, a police officer gave evidence to the Coroner to the effect that members of Mr Whitworth's family had identified the handwriting of the note as being his.
14. The Coroner found that Mr Kovari had died on 28^th August 2014 and that the cause of his death was a mixed drug overdose. She said that, in the light of the evidence, she did not know exactly what had happened to lead Mr Kovari to be found in the grounds of the churchyard. She said that she certainly could not be satisfied beyond reasonable doubt that he had been unlawfully killed and that she did not have sufficient evidence to reach anything other than an open conclusion. That, accordingly, was the conclusion which she reached.
15. As to Mr Whitworth, the Coroner found that he had died on 20^th September 2014 and that the cause of death was gamma hydroxybutyrate toxicity. The Coroner expressed concerns surrounding his death which had not been answered by the police investigation. She said -

"My concerns of a third party involvement in Daniel coming to be in the graveyard on 20th September cannot be allayed by the evidence that has been produced to the court. I cannot say beyond reasonable doubt that I am satisfied that he voluntarily took his own life. I also cannot say that I am satisfied that he was unlawfully killed, because again, I would need to be satisfied beyond reasonable doubt, and there simply is not enough evidence for me to say that".

In his case also, therefore, she reached an open conclusion.

16. Some four months after the inquests, in October 2015, the police investigation into the deaths passed from the Barking and Dagenham Borough Police to a specialist unit of the Metropolitan Police. Their investigation uncovered very significant further evidence. Important features of the evidence which is now available can be summarised as follows:

(1) Fingerprint and DNA findings connect Stephen Port to a bottle found with the body of Mr Whitworth, a blanket in which Mr Whitworth's body was wrapped and a pair of sunglasses worn on the body of Mr Kovari.

(2) A handwriting expert now attributes the handwriting of the note found on Mr Whitworth's body to Stephen Port. Mr Whitworth's family, having heard the evidence given at the original inquest, have denied that they identified the handwriting of the note as being that of Mr Whitworth.

(3) Stephen Port can be shown to have contacted all four deceased through internet dating sites and to have met each of them. Moreover, there is evidence that Mr Kovari lived with Stephen Port for a time.

(4) At the original inquests evidence was given about communications between Mr Amodio, Mr Kovari's partner, and someone called Jon Luck. Mr Luck purported to give information about Mr Kovari's movements and contact with Mr Whitworth. However, evidence is now available that Jon Luck was in fact Stephen Port using an alias, and that the information was false.

(5) There is CCTV footage showing Stephen Port with Mr Taylor on the night of Mr Taylor's murder.

(6) There is evidence of Mr Port purchasing GHB around the times of each of the murders, high levels of that drug being found on post-mortem examination of each of the bodies of the deceased.

(7) There is now evidence of Stephen Port having committed sexual assaults against a number of persons other than the four deceased.

(8) Most importantly, the totality of the evidence which is now available led a jury at the criminal trial to be sure that Stephen Port murdered all four deceased. The overall sequence of events shown by that evidence is that Stephen Port first murdered Mr Walgate, then murdered Mr Kovari, then murdered Mr Whitworth, and finally murdered Mr Taylor. The evidence is further capable of showing that both before and after the murders he committed sexual offences, including rape, against other young men.

17. The convictions of Stephen Port would be admissible at a fresh inquest as evidence that he committed the crimes. The burden would be on Stephen Port, if he wished to do so, to seek to prove that he did not commit them.
18. We have helpfully been informed that the inquest into the death of Mr Taylor, which was also proceeding before the Coroner, has been suspended under Schedule 1 to the Coroners and Justice Act 2009. The inquest into the death of Mr Walgate had been transferred at the request of the bereaved family to another coronial area. It, too, presently stands suspended. Counsel tell us that should the application succeed, the intention of all concerned is that the inquests into the deaths of Mr Walgate and Mr Taylor should be heard by the same coroner as hears fresh inquests into the deaths of Mr Kovari and Mr Whitworth.

The submissions:

19. On behalf of the Coroner, Mr Pleeth submits that the discovery of important new evidence, which was not available at the time of the original inquests, makes it necessary or desirable in the interests of justice that fresh inquests be held. The Coroner reached her open conclusions on the basis of the evidence which was before her, and in ignorance of the important further evidence which has subsequently become available. Putting his submission in terms of the passage which we have quoted from Lord Judge, Mr Pleeth submits that the emergence of the fresh evidence may reasonably lead to the conclusion that the substantial truth about how Mr Kovari and Mr Whitworth met their deaths was not revealed at the first inquest.
20. Mr Thomas, on behalf of the families, supports that submission. In his written submission he further submitted that the new evidence now available shows that the original inquests did not achieve a sufficient inquiry into the deaths of Mr Kovari and Mr Whitworth, and that there are good reasons to order fresh inquests, having regard to the public interest, the interests of the families concerned, the obligations of the UK under Art.2 of the European Convention on Human Rights and the certainty that different conclusions as to the deaths would now be reached.
21. In his written submissions Mr Thomas made no criticism of the Coroner but pointed out that she was handicapped in exploring the circumstances of the deaths by the lack of the evidence which is now available. He further submitted that fresh inquests are necessary or desirable in the public interest so that there may be a full investigation of the apparent inadequacies of the initial police investigation.
22. The Metropolitan Police are not interested parties in this application, but were sensibly given notice of it. In a letter they have helpfully indicated that they do not object to the application made to this court by the Coroner.

Discussion:

23. Applying the principles so clearly stated by Lord Judge it is in my judgment plain that it is both necessary and desirable in the public interest that fresh inquests should be conducted into the deaths of Mr Kovari and Mr Whitworth. The discovery by the Metropolitan Police of new facts and evidence makes it clear that the evidence heard by the Coroner was insufficient to give her the full picture which is now available as to the circumstances of the deaths. For that reason, and through no fault of the Coroner, her investigation was insufficient. Both the public interest and the interests of the bereaved families require that the evidence now available as to the circumstances of the deaths should be heard. Although it is not essential on this application for the Coroner to show that the conclusions reached at a fresh inquest are likely to be different, the verdicts of the jury of the criminal trial show that different conclusions can confidently be expected.
24. On the face of it, it is surprising that the initial police investigation revealed so little of the full picture and appears to have led quite quickly to a conclusion that there was no evidence of any crime having been committed by any person still living. I agree with Mr Thomas' written submission that the information placed before this court gives rise to a question why the original investigation did not discover more than it appears to have done. It would, however, be wrong for me on the hearing of this application to express any view one way or the other as to whether such investigation is necessary and appropriate, or as to the scope of a fresh inquest generally. Those are decisions for the coroner charged with the duty of hearing the fresh inquests. I therefore say nothing about them. Mr Thomas, in his oral submissions, helpfully made clear that he recognises that those are decisions for the coroner at the fresh inquests and he was content to support the application solely on the ground put forward by Mr Pleeth on behalf of the Coroner.
25. I conclude, on the basis of the fresh evidence which is now available, and on the basis that the evidence before the Coroner at the original inquests can now be seen to have been inadequate to permit a sufficient investigation into the deaths, that this application should be granted. If my Lord agrees, I would therefore make an order in the terms of the draft helpfully prepared by counsel and order that the inquisitions dated 19^th June 2015, in relation to the inquest and conclusions into the deaths of Mr Daniel Whitworth and Mr Gabriel Kovari be quashed; that the applicant or such Assistant Coroner as may hereafter be appointed in these matters do convene a fresh investigation into the deaths of Mr Whitworth and Mr Kovari; and that there be no order as to costs.
26. I conclude by making this observation, conscious that the court has before it today the inquests touching the deaths of Mr Kovari and Mr. Whitworth but not the inquests touching the deaths of Mr Walgate and Mr Taylor. As I have indicated, counsel have informed the court that all concerned in relation to the four inquests would intend that the suspended inquests into the deaths of Messrs Walgate and Taylor should proceed before the same coroner and at the same time as the fresh inquests into the deaths of Messrs Kovari and Whitworth. That seems to me to be an eminently sensible course. This court is not invited today to make any order about it, but as Mr Thomas has explained, the Chief Coroner would, if necessary, upon an application made to him by an interested party, have the power to give directions to bring about that result. It seems, however, that no such application will be needed because it seems to be generally recognised that all four inquests should be heard together.

MR JUSTICE GREEN: I agree.