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CCA’s
initial views on the Coroners’s Review Consultation
Document
Removal
of Automatic Right for an Inquest
Issue of Discretion
Verdicts
"How" the Death took place?
Civil Liability issues
Public Safety Comments
Juries
Participation rights for families
Legal Aid
If
you want to Contact the Coroners Review Team, click
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Removal of Automatic Right for an Inquest
Currently,
all formally reportable work-related deaths will have
an inquest and that inquest will be with a jury. Consultation
document suggests that not only will there be no automatic
right to a jury, but that there will be no automatic
inquest. It states:
| 82 |
We
consider that there should be a strong presumption
in favour of public inquests into all deaths of
prisoners, people compulsorily detained under
Mental Health Act powers, and at the hands of
the law and order services. It is not so clear
that deaths in some other categories should automatically
be investigated in formal public inquests. |
| 83 |
We
particularly have in mind cases in which people
take their own lives, deaths on the road, deaths
from occupational disease and accidents at work.
These are all categories of deaths which some
coroners have themselves mentioned when asked
if there were some inquests which they think less
useful than others, or less suitable for automatic
formal judicial investigation in public. |
It appears to be making a distinction between deaths
at the hand of, or premises controlled by, State Bodies
on the one hand and other types of deaths, on the
other.
| • |
It
does not explain why this particular distinction
should determine whether an inquest should automatically
exist or not. |
| • |
Corporate
bodies are often less accountable than state bodies |
| • |
Corporate
bodies often tend to be far more secretive than
state bodies |
| • |
An
inquest is the only time that a public spotlight
is put upon a corporate body (unless public inquiry
or major incident, where report is made public) |
How does Coroners Review justify this removal of rights
| • |
Coroners
suggested that these were the inquests they thought
less useful than the others.
| • |
It
is not stated what reasons were given by
coroners as to why they were thought to
be less useful, and what criteria they were
using as to whether or not an inquest was
useful |
| • |
Did
not as far as we know speak to families
bereaved from a work-related death |
|
| • |
Alternative
investigation arrangements. Para 86 of Document
states that:
| "Traffic
deaths are invariably investigated by the
police and may be considered also by the
police and the Crown Prosecution Service
for criminal proceedings. Accidents at work
are investigated by the Health and Safety
Executive and in some cases considered for
prosecution by them or the police. There
may also be civil proceedings for damages. |
The following points can be made about this:
| • |
"State
" deaths are also subject to investigations
by the police or other agencies, so other
forms of investigation can not in itself
be used as a justification for removal of
inquests. |
| • |
The
police and HSE investigations serve different
functions from those of an inquest. They
concern whether a criminal offence has been
committed or not. Inquests are not concerned
about this, though of course the evidence
may show that one has indeed taken place. |
This
point indicates a failure by the Coroners Review
Team to understand the purpose of an inquest
as far as the family is concerned:
| • |
an
inquest is the only opportunity for families
to get to understand in any detail how their
family member died. Although they may hear
some information from the police (and even,
on occasion) some from the HSE, at an inquest
they will hear live evidence from witnesses.
Even if the death results in a prosecution,
the company will usually plead guilty (to
a health and safety offence) so there will
only be a limited information available
in court |
| • |
an
inquest is the only opportunity for a family
to ask questions of the witnesses. It provides
them a way of involving themselves in the
inquiry process. |
| • |
It
acts as a safeguard against inadequate decision
by the Crown Prosecution Service (though
a verdict of unlawful killing) |
| • |
It
can assist the family in assessing whether
a proper investigation by the police and
HSE has been undertaken |
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Issue of Discretion
The Coroners Review is not suggesting that inquests
should never happen into work-related deaths –
only that they would be at the discretion of the Coroner.
Para 87 states:
| The
issue is not whether deaths in these categories
should always or never be the subject of a public
inquest. It is whether there should be the discretion
to weigh issues of need and benefit along with
the wishes of the family, an d then decide how
full an investigation should be and whether it
should be in public. |
Para
88 suggests possible criteria that could be used;
| • |
Significant
uncertainty about the circumstances or cause of
the death |
| • |
Sufficient
uncertainty or conflict of evidence to justify
the use of public judicial process |
| • |
The
apparent degree of public interest, from the perspective
of uncovering systems defects or general dangers
not already known about; or in the particular
circumstances of the case. |
| • |
The
wishes of the family, whether for privacy or public
investigation, and of other relevant interests. |
| • |
The
availability or otherwise of other investigative
process, the degree of openness and independence
of such processes, and their accessibility to
the family; and the overall suitability of the
alternative process as a means of investigating
sufficiently the cause and circumstances of a
particular death. |
The
issue here is really not whether these criteria are
reasonable ones or not, but whether there should be
criteria at all to determine whether an inquest should
take place. However, it is worthwhile to look at these
criteria in further details
In relation to the first two criteria, who is going
to determine whether there is uncertainty – the
coroners or the families? If the family has a role
in deciding this, how are they in a position to judge
whether there is uncertainty or not if they have no
access to the witness statement etc.
In any case it may be very clear how their relative
died, but they want to hear the evidence about how
the person died
The issue of ‘uncertainty’ and indeed ‘conflict
of evidence’ is not straightforward. It is first
important to distinguish between the ‘immediate
cause" of a death and a ‘direct cause".
An immediate cause is the conduct that immediately
causes a death – like the train driver going
over a red light. A 'direct' cause however can be
the failure of the train company to establish proper.
In work-related deaths there may be clarity about
the immediate cause of the death but not clarity on
other direct causes – i.e. possible failures
on the part of the company or organisation.
Our concern would be how the coroner looks at the
issue of uncertainty and conflict of evidence and
whether s/he is looking only at whether there is uncertainty
concerning the 'immediate' cause rather than at other
'direct' causes. Historically, when it comes to work-related
deaths, coroners have only looked at immediate cause
not looked at direct causes.
Wishes of the family: Wishes of the family
are clearly important but the following need to be
kept in mind:
• at what point will families be asked to make
this decision about whether they want an enquiry;
• how able will they be to make such a decision
so soon after bereavement;
• how well informed with they be of the implications
of such a decision,
It should be noted that, in the CCA’s experience,
we have never come across a family who has not wanted
to have an inquest. It is true that a family may have
such great concerns about how they have treated by
the coroner, coroners officers or the way the inquest
took place, so that afterwards they will be extremely
angry about the inquest and wish it had never happened.
But that can be solved by improving the inquest process
not removing the the right to have an inquest.
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Verdicts
In relation to "verdicts" the reports states
at para 92 that
| "We
are considering whether there should be:- |
| • |
more
‘considered’ outcomes to inquests, with
a strongly narrative content |
| • |
short-from verdicts broadly as now but with some
changes to those available |
| • |
a
combination of these two. |
It
goes onto state:
"Advocates
of "considered" narrative outcomes argue
that the inquest ought to be a dispassionate inquiry
into the circumstances of a death which provides
the family with a full and authoritative account
of what happened and meets the public interest by
identifying general risk factors which can in the
future be contained or eliminated. They see the
focus on short-form verdicts as a distraction, and
as a temptation to participants to turn the inquest
into an adversarial process which undermines its
unique nature and capacity for benefit, and leads
it into overlap with the civil and criminal courts
whose purposes include the finding of fault and
whose processes are properly adapted for those purposes.
Advocates of the short-form verdict say that without
them the inquest process would be deprived of an
important meaning which it now has and that this
is so particularly in relation to "unlawful
killing" and, in cases where there are other
outcomes, the "neglect" qualification
is available. Even when the argument is, there is
no prosecution, or no successful prosecution, in
cases with such outcomes, families do at least have
a summary statement from a judicial process of what
has happened to their relative or relatives.
The
CCA has no strong views on this at present –
except in relation to the "accidental" death
verdict.
The disadvantage of a verdict
| • |
confuses
the process, and makes it appear as though a trial
of some kind is taking place; |
| • |
the
verdict of "accidental" death is particularly
inappropriate since it covers a wide range of
failure from that which is truly "accidental"
to conduct that is just short of an ‘unlawful
killing’ |
The
advantages
| • |
a
verdict of unlawful killing is important symbolically
and ensures that the evidence is passed back to
the CPS |
| • |
the
accidental death verdict could be renamed and/or
an intermediate verdict half way between what
is now ‘accidental death’ and ‘unlawful
killing’ could be created. I.e. death by
negligence |
In
fact coroners review states that:
"If
short-form verdicts are retained, it would in our
view, be desirable to restrict use of "accidental
death" and "natural causes" to circumstances
where the public consider them to have a fair and
natural meaning; and to introduce other categorisations
(such as "traffic death"; and "death
in the course of treatment for serious natural disease")
which at least convey the circumstances of the death
even if they do not imply liability for its cause."
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"How" the Death took place?
However the issue of verdict cuts into the question
of the nature of the inquest process and in particular
what it is inquiring into. There is at present a great
deal of uncertainty about how wide an inquiry an inquest
should be. What does it mean when the inquest should
look at "how the death took place"?
The
Consultation paper does not in our view deal with
this question with sufficient focus. It does state
at para 74 that:
"We
are also disposed in favour of giving the inquest
court greater latitude to decide in each case the
proper bounds of inquiry, so that the court within
the inquest jurisdiction could respond appropriately,
in suitable cases, to the evolving requirements
of Article 2 of the European Convention on Human
Rights and meet major public interest concerns without
resort to ad hoc public inquiries requiring a specific
authority from government."
It
goes onto state in the context of discussing verdicts:
A
further possibility for a general approach to inquest
outcomes might be for the main emphasis to be on
establishing the facts clearly and authoritatively,
addressing issues of causation and possible systems
defects, and then for the coroner to add a rider
or general comment suggesting that the circumstances
appear to justify, or as the case may be, not to
justify, further attention in the relevant public
service redress or disciplinary procedure, or the
civil courts. Such a comment would have no decisive
effect in such proceedings but might be a helpful
signal to the family and a salutary though non-incriminating
public comment.
What
is crucial is a recognition that inquests, at least
into work-related deaths, fail to look at organisations
and other failures that are a direct cause of the
death, and in failing to do so, do not live up to
the expectations that families and others have. It
also seems very problematic that they fail to examine
management failures that are a direct cause of the
death.
It is therefore crucial that the Coroners Review team
needs to look very closely at this area. We like the
idea that the inquest would
"establishing
the facts clearly and authoritatively, addressing
issues of causation and possible systems defects,
and then for the coroner to add a rider or general
comment suggesting that the circumstances appear
to justify, or as the case may be, not to justify,
further attention in the relevant public service
redress or disciplinary procedure, or the civil
courts"
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Civil Liability issues
The Consultation paper raises this question:
"Some
advocate taking a further step by giving the inquest
court a power to settle questions of civil liability
including possibly damage awards as part of the
investigation of deaths in which such liabilities
arise. This would be a significant extension of
the inquest court’s jurisdiction but might
from the family’s perspective give the inquest
a concrete outcome and purpose which some say within
its existing limitations it does not have."
The
CCA has no clear views on this at the moment. The
advantage of an inquest dealing with civil liability
issues is that, it would make the inquest inevitably
more thorough. It would however require that the family
was legally represented. It would however inevitably
make the inquests much more lengthy proceedings.
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Public Safety Comments
Rule 43 of the Coroners Rules allows a coroner to
announce at the inquest that there are reporting the
incident to the relevant authorities in order to prevent
similar fatalities. The Report states "we shall
be considering whether this process needs to be given
more impact, and whether they should be more monitoring
of follow up by the public services of which they
are directed .."
Any
reports should not just be directed at government
bodies but also, where appropriate at the organisations
that requires improvement.
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Juries
In relation to Juries, para 95 states:
A
related issue is the role of juries. At the moment
juries countersign the factual findings of the inquest
inquisition though these are usually fairly brief.
It is not clear that the use of a jury would be
natural in inquests with primarily considered narrative
outcomes and a focus on systems investigation, since
the outcomes would tend to be written up at greater
length than it may be sensible to expect from a
collective process. On the other hand, the role
of the jury is understandably seen as important
in cases where the state or its agents, or a private
company, may perhaps have been involved in causing
a wrongful or avoidable death to a member of the
public; and there are those who see those cases
in which the coroner’s court may have come
closest to infringing its own constraints on implied
incrimination - such as the "unlawful killing"
verdicts from juries in the Marchioness disaster
inquest and the Stephen Lawrence inquest- as justifications
of the coronial process."
Again
the CCA has no clear views on this at present.
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Participation rights for families
At para 20, the report recognises that there is a:
"lack
of clear participation rights for bereaved people,
and of standards and arrangements for their treatment
and support. … They are not systematically
or reliably given information and help about post-mortem
processes or inquests. The evidence disclosure arrangements
at inquests fall below modern judicial standards
in openness, fairness and predictability."
Later
on in the report it states:
We
plan to recommend an agenda for putting the support
of bereaved people at the centre of a reformed inquest
process. We have in mind to propose a set of standards
covering promptness of inquests following the death,
clear and timely notification of all inquest arrangements
to the family; a service which explains to people
what an inquest is and what happens at it; decent
premises, with disability access and provision for
families to wait or consult advisers without being
forced into the close company of other participants;
proactive support in finding sources of bereavement
counseling and other expert help for particular
forms of loss. We shall be considering methods to
monitor the delivery of such standards, over a period
of years for premises improvement but
more quickly in the other respects. We shall be
considering whether an inspectorate might check
the delivery of these administrative standards.
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Legal Aid
The report does not commit itself one way or the other
about legal aid. It states
We
acknowledge the strength and logic of the argument
that families, subject to means, should be represented
at public expense where other participants are represented.
We have had a variety of comments from families
about their experiences of representation by solicitors
or barristers, and will be considering whether to
recommend that publicly funded legal aid should
be available only when representation is from panels
of suitably experienced practitioners.
In
our view legal aid is crucial. It is also important
to note that lawyers acting for families in relation
to civil compensation will not get directly paid for
their attendance or work in relation to an inquest.
It
is also our view that there should be specialist panel
of lawyers involved in legal representation –
as most lawyers will only be involved in an inquest
very infrequently
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