The Court of Appeal rejects the premature restriction of scope in domestic abuse inquest
R (on the application of O’Brien) v HM Assistant Coroner for Sefton, Knowsley and St Helens [2026] EWCA Civ 499
Introduction
The Court of Appeal (Newey, Edis and Whipple LJJs) has allowed the appeal in R (on the application of O’Brien) v HM Assistant Coroner for Sefton, Knowsley and St Helens [2026] EWCA Civ 499. It quashed the coroner’s decision on scope, and remitted the matter to a different coroner for reconsideration of scope, jury, and Article 2 issues. The key takeaway is that coroners must not pre‑determine causation on the basis of incomplete material. Where there is a realistic evidential pathway to a causal finding, the scope of the inquest must accommodate it.
The facts
Linda O’Brien and Alan McMahon had been in an intimate relationship. The Court of Appeal noted that while the facts have not yet been judicially determined, a number of witness statements addressed the nature of that relationship. A neighbour and a friend of Ms O’Brien had made statements alleging domestic violence perpetrated by Mr McMahon on Ms O’Brien.
Mr McMahon had received at least two restraining orders which were intended to prevent him contacting Ms O’Brien. One was imposed on 14 December 2017 for a period of 18 months. A further restraining order was imposed for five years from 2 September 2019.
On 7 April 2020 the police had attended Ms O’Brien’s flat following a report of a woman screaming. There, the police found Ms O’Brien and Mr McMahon present. The police did not recognise that Mr McMahon was apparently in breach of an active restraining order against him in respect of Ms O’Brien. The police left without arresting him.
Ms O’Brien died in the early hours of 9 May 2020 after a fall from a window of her flat. Mr McMahon was present and later arrested on suspicion of her murder. He was later arrested for theft and multiple breaches of the restraining order.
The inquest
A coronial investigation was opened on 14 May 2020. On 15 March 2023 the Assistant Coroner issued a decision after receiving written submissions. He restricted the inquest’s scope to events on 8-9 May 2020. He treated the earlier police conduct from 7 April 2020 as background only. He concluded that there was no “coronial causation” linking police acts or omissions to the death. As a result, he also decided to sit without a jury and found that Article 2 was not engaged. In pre-action correspondence the coroner said that “It simply cannot be known that such an arrest would have resulted in Mr McMahon’s incarceration before or on the date of death”.
Ms O’Brien’s next of kin applied for permission for judicial review. The only ground on which permission was given was that the Assistant Coroner had prematurely and irrationally decided there was no causative connection between police acts/omissions and the death, thereby unlawfully limiting scope.
HHJ Sephton KC, sitting as a Judge of the High Court, dismissed the claim for judicial review on the single ground for which permission was granted. The Court of Appeal noted at [25] that the judge did not address that ground. Rather, he made his own findings of fact on the evidence, which was an error of law [26]. It therefore fell to the Court of Appeal to determine whether the ground of challenge was made out.
The Court of Appeal’s judgment
Edis LJ, giving the leading judgment, noted that the difficulty with the coroner’s decision is that it was unexplained [27]. It was wrong for the coroner to determine at a preliminary stage that it could not be known that an arrest on 7 April 2020 would have led to Mr McMahon being imprisoned (whether on remand or having been sentenced) on 9 May 2020. That decision was premature and irrational: [31].
Rather, the Court of Appeal analysed what would have happened on the balance of probabilities. Had Mr McMahon been charged and pled guilty, given the Sentencing Guidelines and Mr McMahon’s antecedents it was in fact “highly likely” that he would have been in prison: [41]. Had Mr McMahon not pled guilty, the Court considered that if the magistrates’ court had noted Mr McMahon’s repeated disobedience to previous orders “it is probable that bail would have been refused”: [43].
The Court of Appeal criticised both the coroner and the judge for viewing “the criminal justice process as if it were a random affair whose outcomes could not be predicted” [44]. The fact that there is some uncertainty does not prevent an assessment of what would probably have happened [44]. The Court underscored that such an “assessment should proceed on the basis that the decision-makers, the police, Crown Prosecution Service and the court, would have acted rationally on the evidence available and would have been aware of the domestic abuse context in which the offence had allegedly been committed” [44].
The Court reaffirmed that the only relevant predictive test was the balance of probabilities [48].
The appeal was allowed. The coroner’s decision was quashed. The matter was remitted to be reconsidered by another coroner.
Concluding comment
Coroners must address causation using the balance of probabilities and should not restrict scope on the basis that outcomes cannot be known at the stage that scope is set. That is particularly true where objective charging, bail and sentencing frameworks exist and obtainable antecedents provide a rational evidential pathway to the prevention of a fatal event.
Where there is reason to suspect that police acts or omissions may have contributed to a death in a domestic abuse context, coroners should obtain readily available criminal antecedents and consider the applicable guidelines before taking decisions on scope, jury, and Article 2 engagement.
