Monday 7 November 2011

Legal update: R (on application of Kate Cairns) v Deputy Coroner of Inner West London

Today sitting in the Adminsitrative Court, Silber J has rejected the claim brought by Kate Cairns for a Judicial Review of the Inquest into the death of her sister Eilidh Cairns, who was fatally struck by an HGV in Notting Hill on 5th February 2009.  There were complaints about case management which appear to relate specifically to the way in which that particular Inquest was conducted.

Of broader public interest was the Deputy Coroner's decision not to make any recommendation pursuant to her powers under rule 43 of the Coroners Rules 1984.  This rule provides that:

"Prevention of future deaths
43.—(1) Where—
(a) a coroner is holding an inquest into a person's death;
(b) the evidence gives rise to a concern that circumstances creating a risk of other deaths will occur, or will continue to exist, in the future; and
(c) in the coroner's opinion, action should be taken to prevent the occurrence or continuation of such circumstances, or to eliminate or reduce the risk of death created by such circumstances,
the coroner may report the circumstances to a person who the coroner believes may have power to take such action."

As pointed out by Silber J, this rule provides the Coroner with a considerable degree of discretion, so that even if (a), (b) and (c) are all satisfied (which they surely are in all cases where cyclists are run down by HGVs), the Coroner may (not must or should) report the circumstances to a person who it is believed may have power to take such action.

What fortified the Judge in his conviction that the Coroner had not exercised her discretion in such a way that no reasonable Coroner could have done was that "PC Clark of the Collision Investigation [Branch of the Metropolitan Police] explained that he was unaware of anything which could be done to prevent accidents of the kind in which Miss Cairns was tragically killed".

The really worrying thing is that this counsel of despair from the police is both voiced and is so readily accepted.  A Collision Investigator ought to start from the premise that this type of collision is preventable - a clue is in his title, in that the Metropolitan Police (and most Coroners) have, unlike the Administrative Court, abandoned the term 'road traffic accident' for 'road traffic collision'.  The reason for the change in terminology is because of the potential to confuse 'accident' with 'unavoidable event'.  A Police Sergeant in the Metropolitan Police's Cycle Task Force reminded me of this change last week.  It does not take more than a moment's reflection to come up with the ideas of better (or any) mirrors, sensors, training and enforcement as areas for action that may eliminate or reduce the risk of a repeat of the circumstances that led to Eilidh Cairns's untimely death.   My reading of the rule is that it is concerned not so much with a specific action that would have necessarily prevented the death inquired into (sadly the facts seem to have remained obscure in Eilidh's case) but action that would reduce the risk of future deaths in the same circumstances.

All of us who cycle on London's streets know that the quality of lorry driver is highly variable.  Near misses from lorries are not pursued by the Metropolitan Police because (I learnt last week) a safe passing distance is thought to be too subjective.  The quality of response from employers of drivers who have passed much too close varies from the highly responsible to the shockingly irresponsible (I have had one example of each in the last few days).  It does not take many miles of cycling experience to recognize that action is required to reduce the number of HGV/cyclist collisions which so frequently result in death.  A 'nothing can be done' attitude would be unthinkable if considering deaths in an industrial, disease, terrorism or virtually any other unnatural premature death outside the context of road traffic collisions (maybe even especially in the context of pedestrians and cyclists - I will wait with interest to learn, for example, whether a report is made in relation to the recent M5 tragedy).

Action by whom, the police officer or Coroner may ask?  Happily the rule requires only that the recipient of a Coroner's recommendation may have power to take action.  I suggest the (new) Secretary of State for Transport, the (new) Metropolitan Police Commissioner and the Mayor of London as my candidates for persons who may have such power.

1 comment:

  1. Yes, I agree, how about getting an e-petition started? All we need is 100,000 signatures, for the government to debate legislation designed to make the roads safer, not just for cyclists but everyone.