Inquests the present system and future developments ALEXANDER RUCK KEENE

Transcription

1 Inquests the present system and future developments ALEXANDER RUCK KEENE 11 July 2006

2 Introduction 1. This paper falls into two parts. The first outlines the key features of the current coronial system, with particular emphasis on those aspects of relevance to private practitioners. The second deals with proposals for reform encompassed in the draft Coroners Bill published on The current system 1 2. The death certification process had its origins in the first half of the nineteenth century and was last significantly changed in the 1920s. The current coroner system was largely created by the Coroners Act 1887 (the most recent statute, the Coroners Act 1988, being largely a consolidating measure). 3. When someone dies, registration is legally required before the body can buried or cremated, and before the personal representative and family can settle the affairs of the person who has died. Before a death can registered the Registrar must be provided with notification of the death and a certificate of the cause of death from a doctor or a coroner. Deaths which may require further investigation are reported to the local coroner who decides whether to carry out further inquiries. Violent or unnatural deaths, deaths in prison and certain other deaths must be reported to the coroner by the registrar if no-one else has done so; so too must sudden or unexpected deaths. Many reports are also made by doctors because they do not fulfil the requirements of attendance for certifying the death When a death is reported to a coroner, he has three options: (1) to certify the death on the basis of the information he has or acquires; (2) certify the death after ordering an autopsy; or (3) certify the death after holding an inquest. If the coroner chooses not to 1 The leading textbook on the subject is Jervis on the Office and Duties of Coroners (12 th Edition, 2002), from which much of the first half of this paper is drawn. A useful summary of the current system is found in the opening section of the independent Fundamental review of death certification and coroner services published in June 2003 (which formed the basis of the current reform proposals), available at (Hereafter Fundamental Review). 2 The doctor may certify the death if he has seen the patient during the 14 days before death (28 days in Northern Ireland) or if he has seen the body after death. 2

3 continue the investigation to autopsy or inquest he informs the registrar and doctor of this and certification takes place with his concurrence. In 2001, 332,000 deaths (66%) were certified by a doctor, 122,000 (23%) were certified by a coroner and 79,000 (15%) were certified by a doctor after authorisation by a coroner As at , there were 110 coroners in England and Wales, appointed by local authorities. The great majority are part-time. All have a deputy and many have either one or more assistant deputies. 4 Coroners, who must have medical or legal qualifications, are judicial officers (and can only be dismissed by the Lord Chancellor). They are supported by 414 coroners offices, staffed by either the police or local authorities; coroner s officers (the first point of contact for most with coroners), are almost invariably serving police constables who are special and permanently detailed for the duty. Inquests practice and procedure 5 6. As noted above, an inquest is only one of three methods by which a coroner may discharge his duties upon being informed of the presence of a body within his area. Of the 201,000 deaths reported to coroners in 2001, just under 26,000 were dealt with by holding an inquest. 7. As is well-known to practitioners, but less well-known to members of the public, inquests have a specific and limited function: An inquest is a fact-finding inquiry conducted by a coroner, with or without a jury, to establish reliable answers to four important but limited factual questions. The first of these relates to the identity of the deceased, the second the place of his death, the time to the time of death. In most cases, these questions are not hard to answer but in a minority of cases the answer may be problematical. The fourth question, and that to which evidence and inquiry are most often and closely directed, relates to how the deceased came by his death It is noteworthy that the task is not to ascertain how the deceased died, which might raise general and farreaching issues, but how the deceased came by his death, a more limited 3 Fundamental Review, para Ibid, para This section does cover issues specifically related to inquests mandated by Articles 2 and 3 of the ECHR, as these raise complex and interesting questions that are, however, not generally encountered by those whose practice is mainly insurance-driven. 3

4 question directed to the means by which the deceased came by his death. 6 It is not the function of the coroner or his jury to determine, or appear to determine, any question of criminal or civil liability, to apportion guilt or attribute blame It is almost impossible to place too much emphasis on the inquisitorial nature of an inquest. This means, for instance, that the coroner alone has the power to decide which witnesses can give relevant evidence and should be called. 8 Similarly, the coroner alone has the power to determine what documentary evidence is required. 9 The principle also underlies the general exclusion of advocacy in the coroner s court from public funding, subject to limited exclusions (for instance in relation to deaths in prison). 9. Many inquests are conducted by a coroner alone. However, certain circumstances require a jury, the most important being: (1) a death in prison; (2) a death caused by an accident, poisoning or disease, notice of which is required to be given to a government department, in particular under the Health and Safety at Work Act 1974; 10 (3) a death in police custody or arising out of an injury caused by a police officer in purported execution of his duties; and (4) a death occurring in circumstances the continuance or possible recurrence of which is prejudicial to the health and safety of the public or any section of the public. Stages of the inquest 10. Inquests can either be two-part or one-part hearings. Where they are held in two parts, the first part, the opening, is an important formality, 11 but it is usually an uncontentious hearing at which representation is rarely required. The usual format is that identification is established before matters are then adjourned, adjournment being 6 R v North Humberside Coroner, ex p Jamieson [1995] 1 QB 1 at 23-24, CA. 7 Ibid at Although an application can be made by an interested party for the coroner to call a particular person as a witness. 9 His discretion is not, it should be noted, entirely unfettered an unreasonable decision to refuse to call witnesses or obtain relevant documents can lead to the inquest as a whole being quashed in judicial review proceedings. 10 Most accidents which must be officially notified are set out in the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 (SI 1995/3163). 11 It means, for instance, that contempt of court provisions are engaged. 4

5 mandatory in (1) cases involving visiting forces; (2) where any criminal proceedings arising out of the death are pending or envisaged; and (3) where a public inquiry is to be held into the events surrounding the death. 11. Considerations as to representation generally only arise in relation to either one-part inquests or in relation to the resumed hearing of the inquest. Preparation for such hearings is made more difficult by the fact that, as an inquest is an inquiry rather than litigation, there are in general no processes by which interested persons 12 can obtain sight of or relevant copies of documents in the hands of others prior to the hearing. 13 An interested person has no entitlement to see in advance of the inquest copies of the statements prepared by the police and furnished to the coroner 14 or statements prepared by the coroner or his officer. 15 At the hearing, interested parties are entitled to see documents put into evidence and any documents used by a witness used to refresh his memory. However, there is no equivalent entitlement to see the documents prior to the hearing. 12. In cases in which the procedural limbs of Articles 2 and 3 of the ECHR are engaged (i.e. cases in which the state is under an obligation to conduct a full inquiry into the circumstances of a person s death), there may well be a presumption of advance disclosure, at least of relevant material. 16 In non-convention cases, the Government has sought to persuade coroners voluntarily to offer advance disclosure to interested persons. It has, however, not changed the Coroners Rules to make such advance disclosure mandatory, and many coroners still resist advance disclosure, citing, inter alia, a desire not to turn the inquiry into pseudo-litigation. 13. As noted above, an interested person is a person entitled to examine a witness to the inquest. The list of such persons in the Coroners Rules 1984 includes (at Rule 20(2)(c)) the insurer who issued a policy of insurance on the life of the deceased. At an inquest held as a result of a traffic accident in which the driver was untraceable, the MIB also is generally treated as an interested party and allowed to examine witnesses 12 In other words, a person entitled to examine witnesses, falling into one of the categories defined in rule 20(2)(a)-(h) of the Coroners Rules R v Southwark Coroner ex p Hicks [1987] 1 WLR R v Hammersmith Coroner ex p Peach [1980] 2 WLR R (Syed) v Bradford Council, unrep, , Collins J. 16 R (Green) v Police Complaints Authority [2004] UKHL 6. 5

6 by way of counsel or a solicitor. The insurer of the driver of the other vehicle in a road traffic accident does not fall within the category of interested persons, although in appropriate cases, the coroner may treat the insurer as falling into the category of properly interested persons (under Rule 20(2)(h)) giving them the right to appear by their representative and examine witnesses. 14. The precise procedure for the full hearing of an inquest is entirely in the hands of the coroner. That having been said, it would be unusual for a witness as to identification not be called first and a witness whose conduct may be called into question not to be called last. It is usual for the witnesses be called in such a way as to create a narrative of events. Witnesses give their evidence on oath, and are usually asked to read out their statements before being subject to questioning at the hands of (1) the coroner; (2) interested parties; and (3) their own representatives (in that order). 15. Questioning both from the coroner and from interested parties must be conducted in line with the inquisitorial nature of the proceedings. This does not mean that crossexamination by interested parties is impermissible, but it does mean that coroners will be alert to control questioning that strays beyond assisting in establishing the matters which the inquest is directed to determine. 17 Although inquests do not go to establishing criminal or civil liability, 18 it is nonetheless the case that evidence given before an inquest can have substantial ramifications for both civil and criminal proceedings. By Rule 22 of the Coroners Rules, a witness is under no compulsion to answer a question tending to incriminate himself. Importantly, however, a witness is not relieved from the duty to answer a question merely because the answer would expose him to the risk of a subsequent civil action. 16. If, however, evidence given at the inquest gives rise to belief on the part of the coroner that a person might be charged with one of the homicide offences, a charge of which would lead to an automatic adjournment, 19 the coroner must adjourn for at least 14 days to a fixed date and send the DPP or the CPS particulars of the evidence 17 R v Hammersmith Coroner ex p Peach [1980] QB 211, 220 per Griffiths J. 18 Hay v Devon Coroner (1997) 162 JP 96, CA. 19 I.e. murder, manslaughter or infanticide, a road traffic accident involving death or an offence related to suicide. 6

7 (unless the DPP or the CPS has already indicated that adjournment is unnecessary) Another important point to note in relation to inquests is the extent to which privilege can be claimed in respect of legal advice given in relation to the presentation of evidence by interested parties. The decision of the Court of Appeal in Three Rivers (No.6) 21 threw this considerably into doubt. However, the decision was comprehensively reversed by the House of Lords, 22 where Lord Carswell noted that an inquest might have a vital function in exposing culpable and discreditable conduct, 23 such that it was important that privilege should attach to presentational advice as to the protection of the position of a party whose conduct may be the subject of investigation. 18. When the witness evidence has been given, submissions from any properly interested person or their representatives can be made to the coroner (and the jury). As it is prohibited to make submissions as to the facts in evidence at an inquest, 24 submissions must be limited to the law, although these can include submissions as to the possible conclusions to be left to the jury. If the coroner is sitting with a jury, the coroner then sums up before the jury retires to consider its verdict. If there is no jury, the coroner does not need to sum up, but in practice usually makes briefly to the evidence before him or her before stating publicly the conclusion to be recorded. 19. The extent to which the jury is allowed to stray beyond the narrow question of how the deceased came to his death can be highly contentious, in particular in situations where allegations of systemic failure are made (for instance in relation to deaths by suicide in custody). However, such issues will not generally be encountered by practitioners representing insurance interests, and this paper does not dwell upon them at any greater length. 20. Once the inquest is closed, the coroner must on application and on payment of any prescribed fee supply to any properly interested person a copy of any report of a postmortem examination or special examination, any notes of evidence or any document 20 Rule 28(2) of the Coroners Rules. 21 [2003] QB [2005] 1 AC A phrase taken from R(Amin) v SSHD [2004] 1 AC Rule 40 of the Coroners Rules. 7

8 put into evidence in an inquest. 25 There is no definition of properly interested person for purposes of these provisions, but it would seem that the definition is generally the same as elsewhere in the Rules, i.e. a person properly entitled to be represented at the Inquest. 21. There is no direct appeal against any decision reached at an inquest (whether a decision of the coroner during the course of the inquest, or against the verdict reached). It is, however, possible to challenge both categories of decision by way of judicial review proceedings, and a complex body of case-law has arisen as a result, directed, in particular, at the procedures to be adopted in the case of deaths in custody and/or otherwise at the hands of the state. Again, however, this paper will not tackle this subject directly, although the interested reader is directed to a seminar paper recently presented on this topic by Kristina Stern, also of 39 Essex Street. 26 Proposals for reform 22. It is widely recognised that the current system leaves much to be desired. In the Government s own words, the coroner system is: fragmented, non-accountable, variable in quality and consistency, ineffective in part, and very much dependent on the abilities of those working within it at present. Most coroners are part time and some of the legislative framework in which they work is archaic. In some areas bereaved people have limited information available to them, and limited opportunities to be involved A programme of reform to the coroner and death certification service was established in response to the fundamental review of death certification and coroner services, published in Further impetus was given by the third report of the Shipman Inquiry (published in July ), which considered the work of coroners and the death certification system, and how they might be reformed to minimise the chance of another professional operating unnoticed. Particular defects identified in the two reports included: (1) an absence of quality controls and independent safeguards; (2) 25 Rule 57(a) of the Coroners Rules 26 Available at 27 Introduction to the draft Coroners Bill, available at 28 Available at: 8

9 the exclusion of the family or friends of those who have died; (3) a lack of consistency, leadership or training by or for coroners; (4) a lack of involvement of the family in coroner investigations; (5) the unnecessary use of public inquests in some cases; and (6) an absence of medical skills. 24. Following the publication of a position paper in March 2004, the draft Coroners Bill was published on The key features of the Bill are discussed in the remainder of this paper. 25. Many features of the current system are retained in only slightly modified form: a. Coroners will continue to operate as a local service, appointed and funded by their local councils, and supported by coroners officers and other staff provided by the local police or local authority; 30 b. The duty upon coroners to investigate deaths arises in respect of the same categories of death as previously (with a slight modification to extend the scope in respect of deaths in custody), 31 subject to new exceptions in the case of deaths over fifty years old, 32 where the death takes place in Scotland or Northern Ireland, 33 and also, in certain circumstances, where the death takes place overseas; 34 c. The purpose of an investigation (which includes, where necessary, an inquest) remains to ascertain who the deceased was, and when, where and by what means he came to his death. 35 Although note clause 10(2), which clarifies that, where necessary under the ECHR, an investigation into the means by which the deceased came to his death should include the circumstances in which he came to his death; 29 Available at 30 In declining to set up a new, centrally funded, national coroner organisation, the Government declined to follow one of the core recommendations of both the Fundamental Review and the Third Shipman Report. 31 Clause Clause Clause Clause Clause 10(1). 9

10 d. Juries will still be required where the deceased died while in prison or in custody, or where the death resulted from an act or an omission of a police officer in the purported execution of his duty or of a service policeman in the purported execution of his duty as such. 36 The number of jurors will, however, be reduced from the current 7-11 to e. A determination at the conclusion of an investigation must not be worded in such a way as to appear to find a person guilty of a criminal offence or determine civil liability. 38 Similarly, powers will remain to suspend investigations where certain criminal proceedings are likely 39 or where a judicial inquiry is being held However, the Bill brings about some important structural changes: a. The Bill establishes a service consisting of full-time coroners. 41 All new appointments will be required to have legal qualifications. b. The Bill will introduce a Chief Coroner and support staff, 42 and an advisory Coronial Council. The Chief Coroner will be responsible for developing national standards and guidance, supporting coroners and advising Government and for considering appeals against coroners decisions and responding to complaints. 27. The Bill will modernise the processes for coroners investigations and inquests and draws a clear distinction between the two 43 (reflecting the fact that only about 10% of cases investigated by coroners conclude with an inquest). In particular: 36 Clause Clause Clause 12(7). 39 Clauses 17 and 18. The definition of relevant offence for these purposes is slightly wider than that set down in the current scheme, and includes murder, manslaughter, infanticide, offences under ss.1 and 3A Road Traffic Act 1988 (dangerous or careless driving under the influence of drink or drugs); an offence under s.2(1) Suicide Act 1961 (aiding, abetting, counselling or procuring suicide); and an offence under s.5 Domestic Violence, Crime and Victims Act 2004 (causing the death of a child or a vulnerable adult). 40 Clause The government envisages that there will probably be some such full-time coroners. 42 Including a Chief Medical Adviser. 43 In particular, Clause 66 provides for the making of coroners regulations, for regulating the practice and procedure of investigations, post-mortem examinations and exhumations. Clause 67 provides for the making of coroners rules, for regulating the practice and procedure at inquests. 10

11 a. Boundary restrictions on investigations and post-mortems will be relaxed; 44 b. Coroners will be given new powers both to compel witnesses to attend and to produce documents; 45 c. A formal mechanism will be set down by which judges will be appointed in particularly complex cases; 46 d. Coroners will be able to hold pre-inquest hearings in which the scope, issues and conduct of the inquest can be established; 47 e. New measures will be introduced for the protection of children who are witnesses in inquests; 48 f. Coroners will also be given the power to prevent the publication of information allowing the identification of the deceased or any interested person Coroners will have discretion not to hold a public inquest in limited cases, for example some suicides and child deaths, where no public interest would be served by a public hearing. In these cases, the coroner will investigate the death and publish a report Importantly, a new appeal mechanism is put in place 51 by which appeals can be brought by interested persons to the Chief Coroner against both decisions made during 44 Clause 8 provides that the Chief Coroner may direct a coroner (who is not under a duty to so under clause 1) to carry out an investigation. Similarly Clause 27 removes the current limitations on where a body can be moved for purposes of carrying out a post-mortem examination. 45 Clause Schedule 7, paragraph 3(1). The Chief Coroner would ask the Lord Chief Justice to nominate a judge, who would then have the same functions as would a coroner carrying out an investigation. 47 This does not appear in the primary legislation, but will appear in the Coroners Rules to be made under clause By way of giving evidence via live link: clause 44. Other persons can give evidence via a live link where it would be in the interest of the effective or efficient administration of the proceedings at the inquest so to so: clause Clause 30. Interested person is defined in clause 76. The definition mirrors closely that in the current Coroners Rules. 50 Clause 41 provides that inquests are to be held in public. However, unlike in the present situation where the public can only be excluded on national security grounds, Coroners Rules to be made under the new Bill will provide a wider set of circumstances under which the public can be excluded. 51 Clauses

12 the course of investigations and inquests and the determination made at the end of an inquest. The Chief Coroner has wide-ranging powers on appeal, including quashing a determination and ordering a fresh investigation. 52 An appeal against a decision of the Chief Coroner will lie to the Court of Appeal on a point of law only A coroners charter will also be published 54 to set out guidelines and standards to make clear what service bereaved people can expect, and to promote better contact between them and the coroner and coroner s staff. 39 Essex Street July Clause 61(2)(g). 53 Clause 61(3). 54 Under Clause 65. A draft Charter is attached as an appendix to the draft Bill. 12