Exercising judicial discretion and the emergence of common sense

I’m going to try and keep this brief, a feat I rarely manage. Two weeks ago I had to travel from Devon to Kent to report on the third pre-inquest review hearing into the death of Sammy Alban-Stanley. I say I had to, I had applied to the court to attend via audio link and had my request refused, so it was a case of stay home and there be no coverage of the PIR, or attend in person and report what I could. Exactly the same thing had happened at the previous PIR but I hadn’t felt able to travel, despite wanting to.

You can read what happened in the third PIR in this blog post if you’re interested, ‘The chilling effect of disclosure’ at Kent County Council, and you can learn more about Sammy, who he was and what his life was like in this post here, Happy Birthday Sammy, that I wrote for Sammy’s 14th birthday last December. It’s now just over a year since Sammy died, in April 2020.

Sammy’s inquest was due to start next week, in a partially remote hearing that was tabled for two weeks. At the last PIR the Coroner made it clear that any members of the press or public who wished to attend would have to attend the court in person. This felt illogical to me, there had been much mention of the risk to witnesses and how unsafe it was for them to attend, but the same concern was not extended to journalists or members of the public. It was not going to be possible for me to attend Sammy’s inquest in person, so this left me in a bind, I really wanted to report on Sammy’s inquest and feel it is in the public interest that there is scrutiny and coverage, but I had no safe way of doing so.

Or so I thought. Last Monday a judicial review pre-action letter was sent to the Coroner presiding over Sammy’s inquest. You can read the letter in full here, all credit for its contents goes to the combined talents of Jude Bunting from Doughty Street Chambers and Shirin Marker and Amy O’Shea from Bindmans.

This week the Coroner replied to the letter. Since the letter was sent Sammy’s inquest has been adjourned for unrelated reasons, and will now take place in November 2021. There is a further pre-inquest review hearing taking place next week on Friday 28 May.

I’ll be honest, I found it a bit hard to follow the Coroner’s logic, admittedly not for the first time. She stated that she did not

‘accept all of the factual background provided by the Claimant but it is noted that the Claimant has provided further information in her letter which was not provided in the earlier requests for an audio link’.

This seems peculiar to me, given I was not asked for any information on either occasion when I applied for remote attendance and I did on both occasions explain why I wished to access the hearing remotely via an audio link.

The Coroner moves on to discussing the legal framework and seems to suggest that she does not agree with our interpretation of the law. She argues that better provision is made for public and press involvement, during a pandemic, because they are entitled to attend court, which fails to address the issues around their safety doing so, especially if they live on the other side of the country.

There is no presumption of remote attendance as the Claimant put it and the Defendant considered that any member of the press or public could walk into court at any time and therefore appropriate and arguably better provision had been made for public and press involvement. Allowing audio access to the press and public requires disapplication of the Contempt of Court Act 1981 allowing in person attendance does not.

The Coroner details how they take the view that seeing and hearing proceedings is preferable to hearing alone. I’d agree with that, but it fails to address the issue, which was whether hearing proceedings is preferable to not being able to attend at all.

However there should not be a presumption that a court should exercise its discretion and audio access would be quasi automatic but as with any exercise of judicial discretion there should be reasons. The Defendant takes the view that seeing and hearing the proceedings is preferable to hearing alone and should a witness or advocate not be able to be seen or could themselves not see and hear then they would probably need to attend court in person.

We had made three requests in our letter. That the Coroner firstly, accepted illegality, secondly, enabled me to attend Sammy’s inquest via audio link, and thirdly, confirmed the policy would be revised given the errors highlighted.

The Coroner felt the “best way for open justice to be protected and upheld was to allow the press and public to attend in person so they could both see and hear the proceedings”. Which is all well and good if they can, this doesn’t in itself address the issue raised, that it was not possible or safe for me to do so. The response continues:

Had she indicated that the only way she could have accessed the proceedings was by audio link then a link would likely have been granted. There is absolutely no illegality in an exercise of judicial discretion to allow someone to attend a hearing, albeit in person, and on that basis the Defendant simply cannot accept the first step requested by the Claimant.

Perplexing, given my legal team quoted from the email discussion I had with the Court, in which I made it explicitly clear I was unable to travel and that I lived in Devon. I not only indicated the only way I could access proceedings was via an audio link, I explained my location and the time it would take to travel to court, during a pandemic and the excessive risk that would place me at. My request to attend remotely was not granted. Twice.

The Coroner does not accept illegality. What about the other requests, let’s skip to the third.

The Defendant cannot confirm that the policy will be revised as it is not her policy  but will share the concerns raised in the Claimant’ letter with the policy authors.

Hmmm, again a little perplexing. If the Coroner believed their actions taken previously were not wrong the response to this would surely be that there’s no requirement or grounds to adapt the policy. I’m pleased there’s a degree of reflection at play anyhow.

I’m incredibly relieved to share that the Coroner has agreed to ‘exercise her discretion’ to allow me to attend the next PIR via audio link. This is a decision relating to that PIR alone and not to Sammy’s inquest itself, currently scheduled for November. We’ll cross that open justice bridge when we get to it.

I have no desire to judicially review this Coroner, or any other Coroner for that matter. It’s risky, costly and stressful. My only interest is in reporting what happens in court, and exposing the details of how learning disabled and autistic people, live and die.

I have to end this post with a massive thank you to all my crowdfunders who covered the cost of my legal advice and my costs of attending Sammy’s PIR in person. I’d also like to thank Jude, Shirin and Amy and the many people who listened to me panic and offered thoughts, advice and moral support over the last couple of weeks. Rarely have I been more grateful that I know so many wise and principled people. My thanks also to Sammy’s family, I didn’t want to distract from Sammy in any way and am grateful that they did not object to my taking this course of action. Finally, I’d like to thank HM Coroner, for facilitating my attendance at the next PIR and in doing so reducing my risk of catching or spreading covid, and in turn making it possible for me to continue my open justice reporting.

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