Has the Court of Appeal opened the floodgates for Coroners to explore speculative contributions to deaths in Inquests?

The actions of Merseyside Police have been analysed in the recent Court of Appeal Judgment R (O’Brien) v HM Assistant Coroner for Sefton, Knowsley and St Helens [2026] EWCA Civ 499 which has offered some vital commentary on the events a Coroner should consider when determining the scope of an inquest.

This recent Judgment saw the Court of Appeal interpret what the outcome of the criminal justice system may have been if Merseyside Police had taken a different action and arrested an individual and therefore indicate that events which were previously considered speculative should in fact be considered at inquest.

Facts of the case

• on 2 September 2019 Mr McMahon became subject to a 5-year restraining order which prohibited him from contacting Linda O’Brien
• on 7 April 2020 Linda’s neighbour reported an ongoing domestic incident to Merseyside Police who attended and reported that Linda confirmed nothing had happened. Attending officers were unaware that Mr McMahon was subject to a restraining order
• on 9 May 2020 Mr McMahon contacted emergency services reporting that Linda had fallen from the window of her flat
• during post death investigations attending officers confirmed that had they known Mr McMahon was subject to a restraining order they would have arrested him on 7 April
• on 19 June 2020 Mr McMahon was sentenced to 20 months’ imprisonment for breach of restraining order and theft. 

Inquest proceedings and judicial review

At the inquest into Linda’s death the Coroner determined the failure to arrest Mr McMahon on 7 April 2020 would not form part of the scope of the inquest as it had no causative connection to Linda’s death. 

Linda’s family challenged the Coroners decision but were dismissed at the High Court who cited the case of R (Tainton) v HM Coroner [2016] EWHC 1396 (Admin) and determined that on the balance of probabilities the lack of arrest on 7 April 2020 did not more than minimally, negligibly or trivially contribute to Linda’s death as it was speculative to suggest that had Mr McMahon been arrested he would have been in custody when Linda died.

The High Court decision was subject to further judicial review by the family and was heard by The Court of Appeal who reached a unanimous decision to allow the appeal. 

The Court of Appeal confirmed that the Sentencing Guidelines, Bail Act and the possibility of no further action must all be considered when analysing Merseyside Police’s failure to arrest Mr McMahon before it could be excluded from scope. This follows that Coroners can predict the outcome of criminal proceedings when investigating a death and it was confirmed that should Coroners feel ill-equipped to explore issues expert evidence can be sought

Impact on inquests going forward 

Scope

The Judgment makes it clear that Coroners should be analysing events that have previously been considered speculative. As part of this analysis Coroners are being encouraged to comment on the likely outcome of events had appropriate systems been followed. This can implicate not only the police and their powers of arrest, as with this case, but also incidents where referrals by local authorities weren’t actioned or incidents where medical treatment by health care professionals wasn’t provided.

This will significantly widen the scope of many inquests, in turn creating much more opportunities for organisations to be scrutinised. This increased risk will put even more onus on preparing a case effectively from the outset and increase the need for early legal representation.

Pre-inquest review hearings (PIRH)

A keen preference for many organisations is to exclude events as soon as possible by limiting the scope of an inquest at PIRH stage as it creates less avenues for scrutiny and less resources are required when preparing materials for inquest. 

This ruling however makes clear that Coroners will be required to explore potentially causative factors in significantly more detail before excluding them as potential lines of inquiry, even at a preliminary stage. This will therefore make it much more difficult for events to be excluded and strong submissions on scope and justification regarding decision making will need to be advanced much earlier in the inquest process. 

Further evidential analysis for Coroners 

There is potential for this Judgment to lead to Coroners analysing issues in which they have limited experience, and should they feel ill-equipped to do so it is likely that expert evidence will be sought. This will undoubtedly increase the complexity of inquests with expert reports needing to be analysed and potentially contested. 

Family submissions

This Judgment will be particularly welcomed by families of deceased individuals who often favour a widened scope and use this to push for Article 2 style inquests. This makes advancing effective arguments and preparing early even more necessary.

The High Court Judge made it clear he felt that investigating issues of this nature could lead to inquests being used as surrogate public inquiries. Whilst this opinion was dismissed by the Court of Appeal it is clear that much more evidence will need to be considered at an earlier stage. It is therefore more important than ever that organisations take legal advice at the earliest stage possible. 

Weightmans have specialist teams that provide representation at inquests for Police, Local Authorities, NHS Trusts, Healthcare Providers, Insurers and Businesses.