Medical - re: Inquest - reasons.
(Samedi)
Before : |
Commissioner J. A. Clyde-Smith., Commissioner, and Jurats Ramsden and Ronge. |
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Her Majesty's Attorney General |
Representor |
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IN THE MATTER OF THE REPRESENTATION OF THE ATTORNEY GENERAL UNDER THE INQUESTS AND POST-MORTEM EXAMINATIONS (JERSEY) LAW (1995)
AND IN THE MATTER OF THE INQUEST INTO THE DEATH OF CHRISTOPHER HARRY BARDIN
Advocate S. Roberts for the Attorney General.
judgment
The commissioner:
1. On 23rd January, 2020, the Court ordered a fresh inquest to be heard in relation to the death of Christopher Harry Bardin ("Mr Bardin") and we now set out our reasons.
2. Mr Bardin, who was 64, was found dead in his home on 20th May, 2019. A post-mortem examination was ordered by the Deputy Viscount, and the report of Dr Russell J Delaney, a Home Office registered forensic pathologist, of 19th September, 2019, recorded as follows:-
"Christopher Bardin was a 64 year old man with a past medical history of excess alcohol consumption, hypertension (high blood pressure), benzodiazepine dependence, cellulitis and fracture of the right femur.
There were external and internal changes of the decomposition consistent with the death having occurred a number of days prior to discovery of the body. It is not possible by consideration of the post mortem findings in isolation to determine the precise date of death.
Analysis of post mortem blood and urine samples identified high levels of alcohol. This may in part be explained by the effects of post mortem decomposition and bacterial fermentation although the levels cannot be explained entirely by that. The effects of a given blood alcohol level on an individual can be difficult to predict due to the tolerance that may develop with habitual use. I would not expect this blood alcohol level to result in incapacitation in a regular drinker.
There were two full thickness incised wounds (cuts) to the left side of the neck with minor damage to soft tissue but no damage to major blood vessels. There were other roughly parallel superficial cuts immediately around and above the main wounds.
The cluster nature of the parallel cuts is typical of self-inflicted injury. The lack of defence injuries and nature of the scene would suggest the absence of involvement of another person.
The wounds however on their own do not provide an explanation for sudden death.
His heart appeared enlarged although the weight at the time of the post mortem examination may be an underestimate due to the effects of decomposition. It was at the upper range of that seen in males of his height and weight (assuming accuracy of the mortuary scales). In my opinion this does represent pathological enlargement of his heart which would be consistent with the medical history of hypertension. The main pumping chamber of the heart enlarges in long standing hypertension due to the heart muscle chronically pumping against an increased pressure. Hypertensive heart decease is associated with an increased risk of sudden death due to the cardiac arrhythmia. Cardiac arrhythmias are more likely to occur at times of physical and/or psychological stress due to the physiological reaction that would be expected to occur in the setting of self-inflicted injury especially if death did not occur as a result of the injury thereby prolonging the period of stress.
In my opinion and in the absence of other findings and on the balance of probabilities, I am of the opinion that Christopher Bardin died as a result of hypertensive heart decease in the setting of self-inflicted incised wounds to the left side of the neck."
3. On 9th October, 2019, Advocate Cyril Whelan, Relief Coroner, presided at the inquest into the death of Mr Bardin. Evidence was heard from Dr Delaney, who provided the medical cause of death in the usual way and in accordance with his report. The report was accepted by the interested persons to the inquest and the Relief Coroner was satisfied with the evidence heard from Dr Delaney.
4. However, the formal finding of the Relief Coroner, signed by him on 9th October, 2019, is that "the cause of death in this case is unascertained, due to decomposition." The Attorney General is of the view that in reaching this finding, the Relief Coroner had, in error, read from an earlier draft of his of the findings. Whatever the reason, the finding of the Relief Coroner did not accord with the expert evidence before him.
5. The application was therefore to set that finding aside and for a fresh inquest to be heard, so that the correct cause of death of Mr Bardin could be recorded, namely one which accords with the post mortem report of Dr Delaney that he died as a result of "hypertensive heart disease in the setting of self-inflicted incised wounds to the left side of the neck."
The law
6. The governing law is the Inquests and Post-Mortem Examinations (Jersey) Law, 1995 ("the 1995 Law"). Pursuant to Article 14(1) of the 1995 Law, the purpose of an inquest is to determine "who the deceased was" and "how, when and where the deceased came by his or her death" so far as such particulars have been proved.
7. There is no provision under the 1995 Law for an appeal against the finding of the Relief Coroner, and that substantive finding would not be amenable to amendment under the slip rule, by which accidental slips or omissions can be corrected. The only means of addressing the issue was therefore under Article 16 of the 1995 Law which is in these terms:-
"16 Court may order fresh inquest to be held
(1) Where an inquest has been held and it is shown to the satisfaction of the Court, on an application made by, or on behalf of, the Attorney General that, by reason of fraud, irregularity of proceedings, the discovery of new facts or evidence, or otherwise, it is necessary or desirable in the interests of justice that another inquest should be held, the Court may quash the finding of the former inquest and order that another inquest should be held."
8. Article 16(2) goes on to provide:-
(2) On any such inquest, unless the Court otherwise directs, all evidence taken on the former inquest in respect of the death shall be deemed to have been taken on the new inquest."
9. An application under Article 16 of the 1995 Law was refused by the Court in the case of In re Cassin [1997] JLR 187, a case in which the Deputy Viscount had failed to hear evidence from three members of staff at St Saviour's Hospital, who were present when a patient died, which the Court described as "an irregularity in the proceedings". However, despite this irregularity, the Court concluded that it was neither necessary nor desirable in the interests of justice in that case for a fresh inquest to take place, because it was likely that a similar verdict would be reached. In his judgment, Sir Philip Bailhache, then Bailiff, referred to the English case of In re Rapier, deceased [1988] 1 QB 26, where Woolf LJ, construing the equivalent English statutory provision, rejected an earlier test propounded in the case of In re Davis, deceased [1968] 1 QB 72, that the Court should only order a fresh inquest "if it were probable that there would be a different verdict". Woolf LJ said that involved a much more restrictive approach than justified by the statutory wording and "it was sufficient if it were possible that there would be a different verdict." Sir Philip Bailhache agreed that this imposed too high a threshold, but went on to say this:-
"However, the crucial question is whether it is necessary or desirable in the interests of justice that a fresh inquest be held. The possibility of a different verdict being recorded is clearly a very important consideration, but it may be that the Court might consider it desirable for fresh evidence to be explored in public, even if it thinks it likely at the end of the day that the same verdict will be returned.
In our judgment the Court should not fetter its discretion by imposing tests which might not meet the justice of the individual case."
10. As Lord Judge, CJ, said in H M Attorney General v H M Coroner for South Yorkshire (West) [2012] EWHC 3783 (Admin) at paragraph 10:-
"10. The single question is whether the interests of justice make a further inquest either necessary or desirable. The interests of justice, as they are 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."
Decision
11. We agreed with the Attorney General that it was in the interests of justice in this case for a fresh inquest to be heard, so that a cause of death which accords with the post-mortem report could be recorded. On the facts of this case there would almost certainly be a different verdict.
12. Mr Bardin was not married and had no children, but the Attorney General had notified the appropriate persons interested in the matter, all of whom supported the application and the Court agreed therefore that it was not necessary for any parties to be convened.
13. The Court therefore made an order under Article 16(1) of the 1995 Law, quashing the finding made by the Relief Coroner on 9th October, 2019, and ordering a fresh inquest to be heard in which, pursuant to Article 16(2), the evidence of Dr Delaney can be deemed to have been taken.
Authorities
Inquests and Post-Mortem Examinations (Jersey) Law, 1995.
In re Rapier, deceased [1988] 1 QB 26
In re Davis, deceased [1968] 1 QB 72
H M Attorney General v H M Coroner for South Yorkshire (West) [2012] EWHC 3783 (Admin)