Gentle Reader

The question of an inquest in relation to Madeleine is one that has arisen from time-to-time, on MF, 3As and elsewhere. For the most part, these discussions have generated more smoke than light.

This post was drafted nearly a year ago, but the author’s usual problems (competition from many other facets of his life, and consequent lack of time) militated against its completion.

What follows is a summary of the law relating to Coroners’ Inquests in England and Wales - or at least - that part of the law that is of relevance to this case.

Northern Ireland has a broadly similar system although there are some differences. But procedures in Scotland are quite different. In a nutshell, Scotland has a separate legal system. In Scots law there is no provision for Coroners’ Inquests. Under certain circumstances, though, a Procurator Fiscal may, instigate a fatal accident inquiry. This is held before a Sheriff (a Scottish Judge) in a Sheriff’s court. The Procurator Fiscal is a public prosecutor, and - interestingly, from the perspective of the McCann affair – nearer to a Portuguese investigating judge than anything in England or Wales.

The purpose of this OP is to investigate whether an inquest could be held in relation to Madeleine, and if so under what circumstances.

If you have any interest in these matters, read on …


Yours – author

PS Those disinclined to read the whole post (a perfectly reasonable position) will find a summary of the main points at the end

PPS The author appreciates that not everyone may choose to comment. However, to maintain the thread’s visibility, the odd bump would be appreciated

PPPS As what follows is a long post, might the author respectfully suggest that posters just quote the relevant part. Quoting everything clogs up the thread, to the irritation of other posters





A Little History

The Office of Coroner, and the Courts over which they preside are ancient institutions. Coroners were first formally appointed in 1194.

Around that time, the Normans had a problem. The English had developed the unhelpful (if possibly understandable practise) of killing Normans when the opportunity arose.

Seeking not only to discourage this practice, but in-so-far as it continued, turn it to their advantage, the Normans introduced (or to be strict, reintroduced) the offence of murdrum. Here, any dead body, discovered under suspicious circumstances was presumed to be Norman, and the local community was subject to a heavy tax. However, if it could be shown that the body was English, the tax did not apply. Enter the Coroner – part inquisitor – part tax-collector.

If is from the word murdrum that our present word murder originates. In fact, the law relating to murdrum had been introduced into English law by King Canute. You'll find it difficult to believe, but the Danes had faced a similar, unhelpful, problem …

More than eight hundred years later, that early combination of inquiry and collecting money owed to the Crown is echoed to-day in Coroners Courts’ jurisdiction in relation to treasure trove.


Terminology

The terms, “Coroners Court”, “Inquest”, and “Coroners Inquest”, tend to be used as synonyms. Strictly speaking, though, a Coroners Court is the Court where the inquiry, “the Inquest” is held.


Inquests – Separating Facts from Fiction

In England and Wales, statute law relating to Coroners’ Inquests into deaths is found in the Coroners Act, 1988, (as amended). Hearings in Coroners Courts are entirely different from those of from those of other Courts in England and Wales. Coroners Courts enquire into circumstances, they do not try people. In relation to a suspicious death, the role of the Coroner is restricted. In section 11 of the Act we are informed that the Coroner's role is to seek to determine:

- Who that person is
- When did the death occur
- Where did the death occur, and
- How did the death occur

In relation to the causes of death, the form of words for verdicts that are to be used by the Coroner are now covered by the Coroners Rules 1984 (SI 1984 No 552). These are complex, but include such causes as:

- Natural Causes
- Disease, including Industrial Disease
- Accident /Misadventure
- Suicide
- Unlawful Killing
- Suicide

An Open Verdict is returned where it is not possible to identify the cause of death.

It may be that the use of the term “verdict “ causes some confusion, but one must emphasis, that no one is on trial. The purpose of the inquest is not (repeat not) to determine who is guilty of murder, manslaughter or infanticide. The Coroners Act (section 11 again) specifically forbids this. Indeed the Coroners rules forbid any comment by the Court in relation to criminal or civil liability.

Clearly, much of the above would seem to be pertinent to the case of Madeleine. Were her body discovered, then assuming that the “who” could be established, seeking to ascertain the when, where and how of her death would be of immense interest. Likewise, many would be interested to know the cause of death; particularly should this transpire to be from natural causes, accident or unlawful killing.

Of course, as we already noticed, an inquest is not a criminal trial. So no one could be found guilty of her murder or manslaughter. But an inquest neither precludes nor delays a criminal trial. If, during an inquest, criminal charges were brought against some individual(s) in relation to her death, the inquest would be adjourned until the criminal proceedings concluded.

What then is the likelihood of an Inquest occurring? It is this question that we must now address.


More on the Law Relating to Inquests

Now, not all dead bodies are subject to Inquests, only those where there is a reasonable suspicion that the cause of death was violent, unnatural, or sudden, and where the cause is unknown.

In relation to the above, section 8 of the Act instructs:


8. Duty to hold inquest—

(1) Where a coroner is informed that the body of a person (“the deceased”) is lying within his district and there is reasonable cause to suspect that the deceased—

(a) has died a violent or an unnatural death;

(b) has died a sudden death of which the cause is unknown; or

(c) has died in prison or in such a place or in such circumstances as to require an inquest under any other Act,

then, whether the cause of death arose within his district or not, the coroner shall as soon as practicable hold an inquest (…)


But we also learn something else of immense importance from section 8. The reader will note that the body has to 'lie within' the Coroner’s district, i.e. his area of jurisdiction. Geographically, Coroner’s districts are based on local authority areas in England and Wales,

Thus, the ordinary rule is - No body lying in a Coroners district – no inquest.

Thus, normally, only if Madeleine’s body “lies” in a Coroners district in England or Wales can an inquest be held.

But there exceptions …

“Ah”, the alert reader interjects. “We’ve got you there, author! What about all those servicemen who’ve died in Iraq and Afghanistan – they’ve had inquests".

And then a few seconds later, “Err, and what about Princess Diana, she had an inquest - it was in the papers for weeks!” And triumphantly – “She died in Paris!”

Gentle reader, all that you say is true, but the inquests only happened because the bodies were repatriated and lay in a Coroner’s district of England or Wales.

Had Diana been buried in Paris and her body not been repatriated, there would not have been an inquest in this country.


So, What if there is No Body?

What about Mr John Darwin? You may remember that in March, 2002, Mr John Darwin, a prison warder, took to the open sea near Hartlepool in his red canoe. A few hours later he was due to start his night-shift. Thus, it was not until 12 hours later that his wife reported him missing.

The ensuing search found no trace of him, and some six weeks later the wreckage of his canoe was found on a beach.

At a Coroners Inquest held just over a year later, he was declared to be dead.

On 1 December, 2007, he walked into police station in London claiming amnesia. Four days later he was arrested on suspicion of fraud.

Clearly, in this case there was no body, but nonetheless there was an inquest.

This is because the Act contains special provisions covering situations where a coroner has reason to believe a death has occurred in or near his district even though no body is apparent. Under these circumstances an inquest only occurs if the Secretary of State directs the coroner to hold one.

Thus, section 15 of the Act states:


15. Inquest where body destroyed or irrecoverable—

(1) Where a coroner has reason to believe—

(a) that a death has occurred in or near his district in such circumstances that an inquest ought to be held; and

(b) that owing to the destruction of the body by fire or otherwise, or to the fact that the body is lying in a place from which it cannot be recovered, an inquest cannot be held except in pursuance of this section, he may report the facts to the Secretary of State (…)


The essential point, then, is that the coroner must have reason to believe that the death occurred in or near his district. And even if this test is met, the inquest is at the discretion of the Secretary of State (one assumes that this is now the Secretary of State for Constitutional Affairs – how things keep changing!).

In relation to Madeleine, this section is important. If she is dead, but her body no longer exists or cannot be recovered, an inquest could only occur if a coroner has reason to believe that she died in or near his district.

If, by way of example, it were thought she died in Portugal, but there is no body, section 15 does not apply – Portugal is not in or near a Coroners district.

And with that, gentle reader, we near our conclusion. Only one question remains out standing.


How Much of a Body Constitutes a Body?

Now, clearly it is not necessary for a whole body to reside in a Coroners District. For a range of reasons it will often be the case that only part of the body exists. The question, then, is ‘How much?’

This is relevant to the case of Madeleine, because if some reports are to be believed, there may be bodily traces, fluids we are told, that suggest her death.

Could these be considered to be a body were they to be repatriated and lie in a Coroners district?

The answer appears to be ‘No’. As things stand, case law in relation to this sets out that “A body is a substantial part of a body such as to prove death”. By this meant a head, perhaps, or a torso, or similar.


Summary of Conclusions

In relation to Madeleine, the following would appear to cover the main possibilities:

1. Madeleine’s body is discovered in England or Wales in unexplained circumstances. INQUEST POSSIBLE

2. Madeleine’s body is discovered abroad (say, Portugal or Spain) in unexplained circumstances, and is repatriated. INQUEST POSSIBLE

3. Madeleine’s body does not exist, but a Coroner has reason to believe that she died in or near his district (i.e. in England or Wales) in circumstances yet to be explained. INQUEST POSSIBLE IF SECRETARY OF STATE SO DIRECTS

4. Madeleine’s body is discovered abroad (say, Portugal or Spain) and remains there. INQUEST NOT POSSIBLE

5. Evidence for Madeleine’s death abroad (say, Portugal or Spain) is discovered, and forensic traces are returned to the UK. INQUEST NOT POSSIBLE


Gentle reader, what do you think are the prospect of an inquest ever happening?




Links:

Coroners Act 1988 (Text):
<!-- m -->http://web.archive.org/web/20080718171937/http://www.statutelaw.gov.uk/legResults.aspx?LegType=All+Legislation&title=Coroners+Act+&Year=1988&searchEnacted=0&extentMatchOnly
=0&confersPower=0&blanketAmendment=0&TYPE=QS&NavFrom=0&activeTextDocId=1345582&
PageNumber=1&SortAlpha=0<!-- m -->

Coroners Rules 1984 (SI 1984 No 552)
<!-- m -->http://web.archive.org/web/20080718171937/http://www.kcl.ac.uk/
depsta/law/
research/coroners/1984rules.html<!-- m -->

Other links to sites with useful information relating to Coroners Courts:

Department for Constitutional Affairs –
<!-- m -->http://web.archive.org/web/20080718171937/http://
www.dca.gov.uk/
corbur/coron02.htm<!-- m -->

Coroners Society –
<!-- m -->http://web.archive.org/web/20080718171937/http://
www.coronersociety.
org.uk/wfBriefHistory.aspx<!-- m -->

HM Coroner for Surrey (useful FAQ section) –
<!-- m -->http://web.archive.org/web/20080718171937/http://
www.surreycoroner.
info/workofcoroners.html#willthe<!-- m -->

Nottingham Coroners Court –
<!-- m -->http://web.archive.org/web/20080718171937/http://www.nottinghamcity.gov.uk/sitemap/services/
community_and_living/life_events/nottinghamshire_coroners_service/the_coroner_s_court.htm<!-- m -->

You get lots of ideas for crime stories on this forum.
Person killed in UK. Fake abduction elsewhere. No inquest ever.

Sincerley: Are there equivalents to inquests in other countries?

And question: Did I understand right that inquest can happen after court proceedings, or be interrupted by these? I'm a bit confused.

Thank you for a highly informative post.

If I have understood it correctly, the only possibility of a Coroner's Inquest in England and Wales would be if:

2. Madeleine’s body is discovered abroad (say, Portugal or Spain) in unexplained circumstances, and is repatriated

The chances of which are slim, imho.

Hi justmovedhere

Internationally, the picture is varied. Yes, an inquest can happen before, or after, and be interrupted by criminal procedings.

Yours author

Hi MiceAnMen

Broadly speaking, yes.

Unless, that is, there were evidence that led a Coroner to believe that she had died in near his district - then no body is needed. For this to have happened, Madeleine would either have had to have died before the Portugal trip, or to have died after her return. This may seem unlikely, but is theoretically possible.

Yours - author

Hi Tripz

Quite. No body, or evidence of death - no inquest.

Whether the author's post is relevant or not, he is content to leave to the judgement of others.


Yours - author

So to reiterate your opinion NO inquest..And can I have assurance from a learned friend that this position is probably the dilemma with which the PJ are in at this present time? Off course just your opinion on this matter as is mind.

Thankyou for clearing that up in such an understandable way.

I pray that this is the last word on the matter.

What's the chances?

Hello Author

Thank you for such an illuminating post.

You state In Scots law there is no provision for Coroners’ Inquests. Under certain circumstances, though, a Procurator Fiscal may, instigate a fatal accident inquiry. This is held before a Sheriff (a Scottish Judge) in a Sheriff’s court. The Procurator Fiscal is a public prosecutor, and - interestingly, from the perspective of the McCann affair – nearer to a Portuguese investigating judge than anything in England or Wales.

Is there any possibility that with Gerry Mccann being Scottish there may be a little private gate, a little wicked wicket gate, which could be opened to facilitate an investigation by the Procurator Fiscal?

Some search for the truth, whilst others pretend to do so and others still, having trouble accepting any truths. So, the chances of this being the last word on the matter are none.

------------------------------------------------------

Author, thank you for your reply and yes, I understood and thought scenario 2 (repatriciation) the only realistic possibility.

------------------------------------------------------

Tripz, thank you, you have asked the very question that I logged on this morning to post.

Hi, theAuthor!

Now you've got me wondering ... as medics, the Mcs would of course know all about coroners' inquests. Probably attended a few themselves, possibly given evidence.

So if something untoward had happened to Madeleine BEFORE they departed on their trip to Portugal, they would have known perfectly well that the chances of an inquest were very high. If circumstances were suspicious, they would have wanted that avoided at all costs. What better way to avoid it that to have it all happen abroad?

The term district seems to be loosely applied .
For example Lady Diana had an inquest in Surrey even though her body never entered Surrey in any shape or form.

In 1947 James Camb murdered Eileen "Gay" Gibson 150 miles off the coast of West Africa.Her body was never recovered.
Although the murder was not in Hampshire the case came under the jurisdiction of Winchester Crown Court.Camb was convicted and sentenced to death.He was later reprieved.

In 1884 two sailors named Dudley and Stephens murdered and ate a cabin boy named Parker.
The murder happpened 700 miles from Trinstan Da Cunha.Although the murder did not happen in Devon Exeter Crown Court assumed jurisdiction and the pair were tried and convicted.
They were sentenced to death but reprieved.

If a court assumes legal power for a murder outside of its district is a coroner whose job it is to hold inquests on murders in the district obliged to follow suit?

Or were we going to hang 3 people without the victims being officially declared dead by a coroner?

Incidentally there is a Coroner for the Royal Household who has no district are there any other coroners with similar powers?

Almost all coroners' inquests include results of a post-mortem examination.
But not all post-mortem examinations lead to a coroner's inquest.

Which one might be feared most and by whom? Post-mortem exam or subsequent inquest?

On the outside I look OK, inside I am crying.

"Lord Justice Scott Baker has been appointed as Assistant Deputy Coroner for Inner West London for the purposes of hearing the Inquests into the deaths of Diana, "
http://web.archive.org/web/20080718171937/http://www.scottbaker-inquests.gov.uk/
-----------------------------------------------------------------------------------------
29.—(1) The coroner of the Queen's household shall continue to be appointed by the Lord Steward for the time being of the Queen's household.

(2) The coroner of the Queen's household shall have exclusive jurisdiction in respect of inquests into the deaths of persons whose bodies are lying—

(a) within the limits of any of the Queen's palaces; or
(b) within the limits of any other house where Her Majesty is then residing.
(3) The limits of any such palace or house shall be deemed to extend to any courts, gardens or other places within the curtilage of the palace or house but not further; and where a body is lying in any place beyond those limits, the coroner within whose district the body is lying, and not the coroner for the Queen's household, shall have jurisdiction to hold an inquest into the death.

http://web.archive.org/web/20080718171937/http://www.diana-inquest.co.uk/coroner.html

Doubt it, since he and his family are not resident in Scotland at the moment nor were so at the time of Madeleine's disappearance.

Hi properdad

Slim, one would suppose.


Yours - author

Hi doug

Cannot really comment on that.

In a sense, the whole issue of an Inquest is a red herring. It emerges from time to time because posters want see Inquest law used as a tool for bringing the case within British jurisdiction. As things stand, this seems unlikely.


Yours - author

Hi Tripz

No. The dilemma of the PJ /prosecutors, if indeed they are in one, is quite different. Their writ runs to investigating crimes committed in Portugal, with a view to prosecution. In that regard, the presence /absence of a body is, in principle, neither here nor there. Although, of course, in practice it may make their job more difficult.

To the author, the real significance of the absence of a body, relates to defence strategy at any future trial. It opens up the defence that Madeleine is still alive, and that therefore no offence can have been committed.


Yours - author

Hi Coco

Yes - that thought had also crossed the author's mind. True, it does seem highly unlikely, but in this case ...


Yours - author

Hi Tylersmum

Interesting points, but of limited relevance.

Taking the Diana case first. Her death came under the jurisdiction of a special Coroner, the Coroner of the Queens household. This is covered by section 29 0f the Coroners Act, 1988.


29. Coroner of the Queen’s household—

(1) The coroner of the Queen’s household shall continue to be appointed by the Lord Steward for the time being of the Queen’s household.

(2) The coroner of the Queen’s household shall have exclusive jurisdiction in respect of inquests into the deaths of persons whose bodies are lying—

(a) Within the limits of any of the Queen’s palaces; or

(b) within the limits of any other house where Her Majesty is then residing.

(...)


You mention Surrey. But are you not confused? In fact, the present Coroner of the Queen's household, Mr Michael Burgess doubles as the Coroner for Surrey (the Royal job not making the demands on one's time that it once did). He, possibly wisely, discovered that he was too busy at Surrey to conduct such a time-consuming inquest.

The formidable, Dame Elizabeth Butler-Sloss was then wheeled out of retirement to take over. After a mauling at the hands of the Court of Appeal as to whether she should sit with a jury (they said she had to) she effectively pouted that if that's the case you can all get stuffed - and resigned. Lord Justice Scott Baker was then appointed to conduct the inquest.

In fact, the inquest did not take place in Surrey as you state. All proceedings took place in London at Court 73, Royal Courts of Justice in, of course, the Strand.

Taking up your other examples of Camb, and Dudley and Stephens. These, as you cite them refer to prosecutions in the criminal courts - this is quite a different matter: you are not comparing like with like.

In any event, both those instances were pre 1988. The case of Dudley and Stephens, although of immense importance in the development of the common law relating to murder, is less so in relation to the definition of a Coroners district. The whole purpose of the 1988 Act was to put Coroners Courts on a firm statutory basis.

In relation to your query about other special Coroners, it appears there are none. That said, in Northern Ireland, the Coroners Office covers the entire province, which is certainly different to the position in England and Wales. Another minor point, the author has at the back of his mind that High court Judges are invested as Coroners on their appointment. There has always been a view that High Court Judges could sit as Coroners in difficult cases. In a sense, that is more-or-less what happened in the Diana case.


Yours - author

PS The author did not mention the Coroner of the Queen's household in his OP as it did not seem of relevance to our present concerns - although in this case ... one never knows ...

PPS In passing, the author seems to recall that Dudley and Stephens had made the basic error of not eating cabin boy, Parker, in his entirety. When they were finally rescued, bits were found in the boat. Do you suppose this would have amounted to a body? Idle speculation, but at least as interesting as anything in John Ryan's 'Captain Pugwash'.

Hi Bumpkin - an interesting question - author

Hi scotbot

One would imagine that you are almost certainly right. But what if the body turned up in Scotland? - Not completely unthinkable given family connections.


Yours - author

the Author

I really must say....

that your posts are so thought provoking, so informative and so excellently presented, that they are a joy and a privilege to read.

Many genuine thanks for the time and the care that you take in presenting them.