Making Effective Use of Admissions in Inquests: Reflections on Tainton

Inquest practitioners will be very familiar with R (Tainton) v HM Senior Coroner for Preston and West Lancashire [2016] 4 WLR 157 and the two key matters addressed by the Court and Sir Brian Leveson in his judgment.

The first, namely the test for finding a causative link between “an event or conduct” and the death, is settled and universally applied. However, the Court’s judgment on the second matter, which was the recording of admitted failings, has not resulted in a clear and settled approach. After nearly a decade, there is little consistency in practice in terms of what constitutes a Tainton admission, nor when and how Tainton admissions can be made and recorded. Further, subsequent authorities have failed to provide consistent or conclusive guidance. Nevertheless, Tainton admissions are a useful tool when representing a state body, and they remain underused.

Tainton and Subsequent Authorities

The case of Tainton itself concerned the death of a prisoner from natural causes. The inquest was subject to the procedural duty under Article 2 (a “Middleton” inquest). There had been a delay in the Deceased’s diagnosis of cancer and issues arose as to whether that, and other clinical failings, had more than minimally contributed to his death. Both prior to and during the inquest the relevant NHS Trust admitted, formally and in writing, substandard medical care. Further, those individuals who were responsible for the errors and who gave evidence, made similar admissions in the course of their evidence. However, the Coroner judged (correctly) that the evidence was insufficient to establish a causative link between the admitted failings and the death and so he did not invite the jury to record those clinical failings on the Record of Inquest. The Court found that the Coroner had made an error of law. Sir Brian Leveson stated [at para. 74],

“Putting the point another way, in an inquest such as this, where the possibility of a violation of the deceased’s right to life cannot be wholly excluded, section 5(1)(b) and 5(2) of the 2009 Act should require the inclusion in the Record of Inquest of any admitted failings forming part of the circumstances in which the deceased came by his death, which are given in evidence before the coroner, even if, on the balance of probabilities, the jury cannot properly find them causative of the death.”

The requirement for admissions to appear on the Record of Inquest has since evolved, and was challenged in R (Carole Smith) v HM Assistant Coroner for North West Wales [2020] EWHC 781 (Admin). In Smith, a Coroner sitting 

without a jury decided not to record admitted, non-causative failings on the Record of Inquest in an Article 2 inquest, even though such failings had been recognised and considered in the course of the Coroner’s “judgment” in which he gave his reasons for the conclusion which was recorded. This decision was challenged by the Family of the Deceased and the High Court, consisting of Dingemans LJ, Griffiths J and the then Chief Coroner, fully endorsed the Coroner’s approach. The Court did not reference the judgment in Tainton; whilst Tainton was cited in relation to causation, the Court did not address it at all on the issue of whether admitted failings ought to feature on the Record of Inquest in an Article 2 inquest. Instead, the Court held that it was sufficient for the Coroner to have recognised the admitted failings in the course of his “judgment” when he set out his findings of fact and reasoning for his conclusion.

Whilst it is not explicitly set out in Smith, the judgment allows for a distinction to be drawn between inquests heard by a Coroner alone and those heard with a jury. In the former, Article 2 can be satisfied by reference to admitted failings in the course of a publicly-delivered judgment in which the findings are set out, as such judgment forms part of the public record; there is no need for the admissions to appear on the Record of Inquest also. In a case heard with a jury, however, the jury is not able to provide any additional rationale or commentary about their findings, and so admitted failings must be recorded on the Record of Inquest, even if non-causative, otherwise they would not be recorded anywhere and Article 2 would not be satisfied.

In R (Ginn) v HM Senior Coroner for Inner London [2022] EWHC 28 (Admin), which concerned another Article 2 inquest into a prison death, the Coroner declined to invite the jury to record admitted failings in relation to the prison’s resuscitation efforts and this was challenged by the Family. However, the Coroner had addressed the issue of resuscitation failings in a Prevention of Future Deaths Report and, taking a similar approach to that in Smith, the High Court considered that such Report was part of the outcome of the inquest and was sufficient to satisfy the Article 2 procedural requirement.

What is a Tainton admission?

The judgment in Tainton does not provide a definition of what does and does not constitute an “admitted failing” such as to trigger the requirement for it to be recorded. Drawing together Tainton and Ginn, it seems that a true Tainton admission is one made by an agency or organisation at very senior or “corporate” level, made following proper consideration of all the relevant evidence and facts, and made knowingly for the purposes of the inquest. An admission made, formally, in these circumstances can be treated as an acknowledgement of a failing on behalf of the State. Further, a Tainton admission can only be made if the organisation in question does so voluntarily. Neither the Coroner, nor any other IP, can force or direct a formal admission to be made on behalf of an organisation, nor the terms on which it is made.

In contrast, admissions or concessions made by individual witnesses prior to or in the course of their evidence should not be treated as Tainton admissions. It is often argued on behalf of Families that concessions made by individuals in the course of their evidence, or in earlier interviews, ought to be treated as a Tainton admissions, and consequently recorded on the Record of Inquest. That it not correct and practitioners need to be alert to that approach.

Why and When Should an IP Consider Making a Tainton Admission?

Why? There are a number of reasons why an organisation or state agency may consider it sensible and advantageous to make an admission of facts and failings. These will vary from case to case, and be case specific, but may include:

a) if accepting failures in clear terms is the right thing to do as a public authority, particularly in respect of conduct towards a bereaved Family;

b) if the admitted failings are clearly going to be established and admitting them can assist the Coroner in narrowing the contentious issues and the evidence which needs to be obtained and adduced to address those issues,

c) if they can assist the Coroner in narrowing the causative issues that must be left to a jury,

d) if the admissions will ensure that the failings are accurately described and recorded, and

e) because, in addition to the above, making the admissions may assist in shortening the length of the inquest, in reducing the number of witnesses from the organisation (who may themselves be vulnerable) who will need to give oral evidence, and in stemming or reducing the reputational harm to the organisation flowing from the failings themselves.

When? Tainton admissions can be made at any stage of the inquest process, and the decision is entirely in the hands of the organisation considering it, but the challenge is identifying the point at which it has become both appropriate and most effective to do so. The right time to make a formal admission will depend entirely on the facts of a case, the procedural history before the inquest, and the state of evidence. In a case where other proceedings have preceded the inquest, and there is clarity as to relevant failings in the light of the evidence, such as in a prosecution or in the course of regulatory proceedings, then Tainton admissions can be considered well in advance of the inquest; if they are made at the pre-inquest stage, they can help to narrow the scope of the inquest and/or the extent of the evidence which the Coroner needs to obtain. In other cases, it may become apparent during the preparation of the inquest that witnesses are going to accept deficiencies or flaws in their own conduct and that there are related failings at an organisational level which ought to be acknowledged before those witnesses give evidence. In still further cases, particularly those where the cause or causes of the death are yet to be established, or are the subject of expert evidence which will be explored at the inquest, it may not be possible to consider the position on admissions sensibly until all the evidence has been heard and once causation has properly crystallised.

How Should a Tainton Admission be Drafted and Adduced into Evidence ?

There is no standard formulation of a Tainton admission, but the foundation of it should be that it is precise, clear and carefully thought out. When drafting, it may well be necessary to place any admission in the context of the organisation’s underlying duties and powers, to set out what (of relevance) was and was not done, and to be clear as to the extent and limits of the admitted failing. Written Tainton admissions are likely to require careful drafting and should not be produced “on the hoof”.

If the admissions are broken down into different component parts, make sure that they are consistent with each other, and that they do not have an unintended impact on another aspect of the evidence. This is particularly important where there is likely to be a civil claim following the inquest.

If made in advance of the evidence, it is also vital that your witnesses are aware of the nature of any admission being made by the organisation, especially if it relates to their conduct. It is less than ideal if an organisation makes a corporate admission, only for its witness of fact to undermine it, and potentially themselves, when they give evidence.

Good inquest preparation will involve conferences with witnesses, during which any admission relevant to a witness’ conduct can be explained and discussed with them, to ensure that they have the opportunity to explain why they disagree with the admission, or factual premise underlying it, if they wish to do so.

It is also important to consider how the admission is to be adduced, a question which is ultimately for the Coroner but on which they will doubtless appreciate your input. At the least, a witness statement from an appropriate officer of the organisation may be needed to introduce the admission, and this may be read. The more extensive and wide- ranging the admissions, the more likely it will be that the Coroner will want a senior individual from the organisation to speak to the admission by giving oral evidence; if that is the case, that too will require careful preparation, to ensure that the witness is sufficiently senior and sufficiently well-informed in relation to the basis for the admissions. A close eye must be kept on any attempts by other IPs to go beyond the admissions when questioning that witness. It is also important to ensure that other witnesses from the organisation, who will be called as witnesses of primary facts, understand their status within the inquest, and are not encouraged or permitted to take on the role of the “corporate witness” by explaining or commenting on the formal Tainton admissions.

How does a Tainton Admission Feature on a Record of Inquest?

Admitted failures of the part of the State should be recorded in Box 3 of the Record of Inquest. As indicated above, in an Article 2 inquest a jury may record them even if the failing was not causative of the death. If that is the case, this too should be made clear on the face of the Record of Inquest.

Conclusion

Although the years since Tainton have not brought consistency as to the way in which Tainton admissions are approached and used, the circumstances in which they may be appropriate and helpful are wide-ranging. They can be an effective way to narrow the issues and the evidence in an inquest, and they can help in other ways when drafted with care, and deployed at the right time. In summary, they should not be forgotten as, potentially, a useful tool when representing a state agency or similar organisation.

This article was originally published in Insight magazine, September 2024.