Charlotte Davies (2007) has appeared for Cornwall Council in an inquest over eight days before the Senior Coroner for Cornwall and the Isles of Scilly which has resulted in the findings being referred to Lady Heather Hallett, the chair of the ongoing UK Covid-19 public inquiry, and a Prevention of Future Deaths report being sent to the Cabinet Office. The inquest has been reported widely in the national press.
The inquest involved the drowning of three men on separate beaches during the Covid-19 lockdown in 2020. The incidents took place during a time where no RNLI lifeguards were present, due to lockdown restrictions. Michael Pender died at Treyarnon Beach on 25th May 2020; Jan Klempar died at Porthcurno Beach on 25th June 2020; and Paul Mullen died at Church Cove Gunwalloe on 20th August 2020 in unrelated incidents. It had previously been decided that the three inquests would be heard together due to the similar circumstances.
The families of the deceased; the RNLI; the Maritime and Coastguard Agency (the MCA); the National Trust, represented by Leading Counsel; and Cornwall Council (as a land owner and commissioning party in the RNLI contract), all appeared as Interested Persons.
The inquest heard that, despite the longstanding relationship between Cornwall Council and the RNLI, and contractual arrangements to do so, there is no legal duty on landowners or occupiers to provide lifeguards on beaches. The coroner considered the cases of Darby v National Trust [2001] PIQR P372 and Tomlinson v Congleton Borough Council [2004] AC 46.
At a previous Pre-Inquest Review Hearing, in which Charlotte also appeared, the Senior Coroner made a preliminary decision that there was a credible basis to consider Article 2 was engaged. However, following detailed submissions at the conclusion of the evidence, it was determined that Article 2was not appropriate: there was no arguable breach of the state’s Article 2duties, in the context where there was no legal duty to provide a lifeguard service. In reaching his decision, the Senior Coroner considered the case of Gülsen Gökdemir v Turkey (Application No 66309/09) in which the European Court of Human Rights (in a matter which also involved a drowning in the sea, where there was no lifesaving equipment available), found that it “would mean imposing an excessive burden on the authorities” to accede to engaging Article 2.
The coroner heard evidence that, despite being under no statutory duty to do so, Cornwall Council contributes approximately £1millionper year towards the operating costs of the RNLI (which are approximately£4million in total in Cornwall) with the rest coming from charitable donations and legacies. The excellent relationship between Cornwall Council, the RNLI, and a number of private landowners, including the National Trust, means that the RNLI is able to provide a seasonal lifeguarding service across 58 beaches.
The inquest heard that as a result of Covid-19 and the national response to it, the RNLI had not been able to recruit and train its seasonal lifeguards in readiness for the 2020 season. The government’s furlough rules also affected employee retention, and the situation was further impacted by the closure of car parks, paths, and facilities on beaches by landowners, meaning that the RNLI could not ensure that its lifeguards would have a safe working environment. Regarding PPE, the court heard that the RNLI initially received30,000 unsuitable face masks, for which they had to compete for on the open market.
The Chief Executive of the RNLI, Mark Dowie, wrote to the then Prime Minister, Boris Johnson, making him aware that there were no lifeguards on the 248 beaches usually serviced by the RNLI nationally, and requesting advance notice of any relaxation of lockdown rules. A response from the then Minister for Maritime, Aviation and Security, Kelly Tolhurst MP, stated: “Officials will ensure [the] RNLI is notified as far in advance as possible to enable you to mobilise your assets as appropriate”. As a matter of fact, the inquest heard that the Chief Executive of the RNLI, and the Assistant Director for HM Coastguard, found out that lockdown rules were to be relaxed (the following morning, 11th May 2020), by hearing the announcement on the evening news at the same time as the general public. DEFRA (which has jurisdiction over in-land waters, only) put out a briefing, telling the general public to “go swimming… in the sea”, at a time the government knew there was no lifeguard cover at all.
The RNLI began rolling out lifeguard cover to Cornish beaches on 30th May 2020, following a risk-based assessment of which beaches to prioritise. In the lead up to this and over the entire period, a comprehensive social media and press campaign (at a cost of £1.2m to the RNLI) had been embarked upon, in collaboration with the MCA, informing the public that there were no lifeguards at many beaches, and not to enter the water. Signage warning of the dangers was positioned at the entrance to all three beaches relevant to the inquest. The RNLI was ultimately able to provide lifeguard cover to 45of its usual 58 beaches in Cornwall.
At the conclusion of the evidence, the coroner invited submissions on a potential “rider of neglect [by the state]” in relation to Mr Pender’s death specifically, which happened at a time that there was no RNLI lifeguard cover at all. All of the Interested Persons were of the view that the legal definition for this was not met, and the coroner ultimately agreed.
In his findings, the Senior Coroner said that the RNLI and Cornwall Council had “moved mountains” to provide lifeguard cover in very challenging circumstances, and to mitigate risks in the meantime. Without the efforts of the agencies involved he said that the situation would likely have been far worse.
The Senior Coroner is to write to the chair of the UKCovid-19 Inquiry, Lady Hallett, advising her of his findings and inviting her to consider whether the matter needs to be addressed within the national inquiry itself. He indicated that he also intends to send a Prevention of Future Deaths Report to the Cabinet Office in relation to the challenges around furlough and PPE, and the lack of advance notice given to the RNLI of the relaxation of lockdown rules.
A conclusion of misadventure was entered in all three deaths.
Charlotte was instructed by Rebecca Mabelle, Principal Lawyer (Regulatory & Litigation) at Cornwall Council.
Charlotte has a busy specialist inquest practice, having represented all types of Interested Persons, including at Article 2 and jury inquests. She regularly appears in high profile inquests, many of which have involved Leading Counsel. She has written a series of articles on inquests which can be found on our website and on LinkedIn.
If you have any questions about this matter or wish to instruct Charlotte, please contact her clerk Jamie Kyte on 01752 221551 orcivilclerks@kbgchambers.co.uk.
