Evidence submitted by Nigel Meadows, HM
Coroner for Plymouth & SW Devon
INTRODUCTION
The views expressed herein are purely personal
and do not represent the view of the Coroner's Society of England
and Wales or the South Western Coroner's Society.
GENERAL POINTS
1. Shipman
The Bill does nothing to deal with the issues
raised by the Murders committed by Dr Harold Shipman. Indicating
that this will be dealt with by NHS Reforms could be viewed as
a missed opportunity. The NHS Reforms will not prevent another
Dr Shipman. Admittedly it is very difficult to prevent a determined
doctor unlawfully killing their patients.
2. Hospital Mortuaries
The Bill does not address the National issues
concerning the acquisition or purchasing mortuary usage and the
skills and expertise of Histopathologists who do the vast bulk
of Coronial post mortems. It is therefore still left to Local
Authorities and their Coroners to try and negotiate the best possible
deal. There are no national performance standards or pricing schedule.
3. Treasure
The retention of a Treasure Inquest System is
also a missed opportunity. This is an historical anachronism which
should be abolished in the 21st Century. Treasure Inquests serve
no useful purpose and could easily be dealt with administratively
by the British Museum with an Appeal process being available via
the Civil Courts. The objections of the Departments of Media,
Culture and Sport are in reality without foundation. Treasure
Inquests are largely a total waste of time which really achieves
nothing. The money to be utilised in the creation of a Treasure
Coroner, his Deputy and supporting staff and all that goes with
that could be utilised far better to providing the real service
which Coroners are meant to give. Whilst it may be academically
interesting, since this is the first opportunity for major reform
to be taken probably in 100 years, Treasure Inquests should come
to an end.
4. Resources
The view expressed at the first introductory
meeting held in London that the Coroner's Charter sets out the
level of Service that the Government would expect currently to
be provided for the public is totally and utterly unrealistic.
The draft Coroner's Charter plainly and without doubt will require
additional staffing resources/manpower to try and achieve that.
The whole system will become far more bureaucratic.
5. Appeals
Introducing an Appeals system will inevitably
lead to delay in post mortem examinations, leading in turn to
storage problems of bodies at mortuary's and undertakers. It will
be time consuming and expensive. It will lead to lawyers developing
an area of new legal practice based upon raising objections to
all manner of decisions which Coroner's operate. Coroners and
their Officers use their experience to talk to families at present
to try and persuade them of the most appropriate course which
then proceeds with the de facto consent (in the vast majority
of cases) of the "next of Kin"—whoever they may
be. It is impossible for any system to have 100% success. The
ultimate sanction of simply being able to proceed and only being
stopped by a High Court Judge which on the face of it seems somewhat
stringent and arbitrary, in practice actually works. Quite often
post mortems and various tests and analysis have to be conducted
very shortly after a death (ie septic shock). Any delay in examination
can only prejudice the result of those enquiries. Even in more
routine post mortems delays of several days only to evidence being
lost or minimised with the natural decomposition processes. I
would suggest a much more limited basis for Appeal.
6. Luce
The Luce Report identifies that the current
system is under resourced substantially for the burdens placed
upon it. The Local Authorities still would retain the obligation
to fund the Service which plainly is going to be more time consuming
and expensive in the future. However, no extra funds are provided
by HM Government to Local Authorities for this. I have always
been a believer in the proposal for a separate Death Investigation
Agency separately funded by the Government should be set up. All
Local Authorities are under tremendous financial pressures with
competing budgetary demands. The Lord Chancellor's was cut by
8%. Local Authorities around the Country are having to cut and
trim their budgets. Where on earth in the pecking order of spending
will the Coroner's Service come?
7. Section 33
Section 33 of the draft Bill indicates that
the Local Authority "must" provide and maintain proper
accommodation for investigations and inquests. Most Coroners around
the Country have totally inadequate accommodation. How is this
to be interpreted by Local Authorities? Are they to build purpose
built Courts? Having access to, for example, Magistrates' Courts
in rural areas have been much diminished because of the closure
programme. Getting time to sit at Crown Courts is notoriously
difficult. To have the sort of facilities envisaged by the Coroner's
Charter, for example, for Jury Inquests or in fact any Inquests
of length and complexity where numerous witnesses will be called,
requires an appropriate Court Venue. This would inevitably entail
Local Authorities in substantial capital expenditure. They should
be told whether or not this is the case so that they can plan
and start building now! If not, what on earth does it mean?
8. Coroners Officers
The expectation expressed that the draft Bill
suddenly removed the uncertainty from Local Authorities and Police
Forces as to the current provision and future of Coroners Officers
is total nonsense. The vast majority of Coroners have the assistance
of Coroners' Officers employed by and paid for by their Police
Authorities. If Local Authorities are to take on this responsibility
even on the present staffing levels, where are the funds going
to come from to pay for this. The extra demands on the service
will inevitably lead to extra staffing demands which will mean
that the Local Authorities would actually be taking on a far bigger
employment problem than currently exists.
9. Nowhere in the Draft Bill is there a
formal acknowledgement of the current role and expertise of Coroners
Officers. This should be addressed.
10. The general scheme to put Coroners on
a much more additional judicial footing is laudable but plainly
there is so much work to be done in preparing the draft rules/regulations
it is surprising that they were not provided to start off with.
We need to see them now.
THE DRAFT
BILL
Section 1
Will the Coroners Rules define "reasonable
cause to suspect" actually is or may be?
"Do persons otherwise lawfully detained
in custody" include those persons detained under the Mental
Health Act 1983? In many cases those persons claiming dire circumstances
which warrant further investigation particularly in the light
of recent publicity concerning, for example, the care of those
with learning disabilities, what about those patients who are
caught in what is known as the "Bournewood Gap". In
other words, where they are not formally detained but to all intents
and practical purposes they are detained but not in name.
Section 2
This broadly represents the current position
under Section 15 of the Coroners Act 1988 this when the Chief
Coroner "may" direct a Senior Coroner to conduct an
investigation. Precisely upon what basis and criteria would such
a discretion be exercised.
In view of the expanded definition of a body,
would this not potentially cause problems.
Section 3
Again the issue of the basis upon which the
Chief Coroner would exercise the discretion and on what basis
needs to be resolved.
Section 4
Personally I have conducted several Inquests
into deaths which have occurred in Scotland which have actually
proved very useful and informative for the relatives. Fatal Accident
Enquiries are rare in Scotland. Once again a discretion is provided
but without any knowledgeable basis upon which it can and would
be exercised. This may be used as an attempt to minimise the number
of enquiries of this nature. Is the Chief Coroner always to be
pressed into granting permission for an investigation where there
are family members pressing hard for one? What if there are no
family members but the case does deserve some sort of investigation
but it will prove expensive and time consuming.
Section 5
There are numerous queries and questions with
investigation of death outside the United Kingdom under the current
draft Section 5. What does "linked to the circumstances"
mean? What does "the death might recently be expected to
give rise to action" mean? What is the definition of "action"?
Does that mean litigation, complaints, etc. What are similar circumstances?
A much clearer definition needs to be spelt
out with regard to Service Personnel who died "on duty".
What does that actually mean? Does is mean a care accident whilst
driving from one base to the other? Does it mean under active
fire from an enemy? It has generally been accepted that in particular
multiple fatalities and bodies being repatriated to this Country,
the families in question benefit from a proper enquiry into the
facts and circumstances so far as is humanly possible to determine
how their loved ones died. It seems to me that this current section
is drafted to stop the need for any such enquiries and resolve
the "Smith" case issue. It seems to avoid natural disasters
being enquired into, although there may well be culpability and
responsibility for many involved. In a plane crash how does one
know that there could be a murder or manslaughter investigation
from the outset.
Section 6
Precisely on what basis does a Senior Coroner
report a death to the Chief Coroner requiring investigation. What
is the public interest and how is it defined. Surely that will
vary with Governments of the day. Precisely on what basis would
the Lord Chancellor exercise any discretion? Should it actually
be the Lord Chancellor in any event. Since he is now no longer
the Head of the Judiciary, surely the common sense and logical
person is the Lord Chief Justice? If not, it is plainly then subject
to Political influence.
Section 7
In practice, I do not see this to be a problem
and things would work largely as they do at the moment.
Section 8
No specific comment.
Section 9
This largely represents the current law. It
is safe to say that clearly that it involves the exercise of discretion
by the use of the word "may", but on what basis is the
discretion to be exercised?
Section 10
It is a matter of common sense that the purpose
of the investigation should also be to ascertain the "medical
cause of the death". In addition to by what means the death
occurred. Why cannot that simply be added? Sub-section 2 essentially
gives statutory enactment to the Middleton Judgment. There will
still be arguments as to precisely what "the circumstances"
are in any given case.
Section 11
The Inquest is now seen as part of the investigation.
Who, if anyone, can see for example the documentary evidence collated
and collected by the Coroner during the course of the investigation
either created by himself or his Officers or through third party
sources such as the Police, the Ministry of Defence, the Security
Services etc?
Section 12
The current drafting is poor. It is plainly
the Coroner who conducted the investigation and heard the Inquest
who should initiate steps to prevent a recurrence of a similar
fatality. As presently drafted it would seem that the Area Coroner
would then have to ask the Senior Coroner to take steps when that
individual has not heard the witnesses, considered the evidence
and been intimately involved in the case. The current Section
12 provides no teeth for the prevention of further fatalities.
I would strongly wish to urge that the Coroner
conducting the investigation (whoever that might be) shall in
all cases where he considers that steps should be taken to prevent
similar fatalities, report that matter to any person or body who
has power to take steps to prevent similar fatalities but also
make specific recommendations for consideration. There should
be a National Register, publicly accessible, the recipient of
such a Report would then have a period of time in which to conduct
any necessary further enquiries before responding properly and
openly on the record for a Report. Failure to respond within set
time limits would be a criminal offence punishable with a fine
and/or imprisonment. An application to extend the time for a response
say three months can be made to the Chief Coroner. Such records
should be publicly accessible via a National Website. The current
provisions are toothless and do no better than we currently have.
Section 13
What is the basis upon the exercise of discretion
for the Senior Coroner to indicate that a case should be held
with a Jury? There are no such appeals against the decision one
way or the other.
Section 14
There seems to be no logical basis for reducing
the current numbers of Jurors who can serve. One of the strengths
of the English legal system has been the use of Juries over many
years. Reducing the number of Jurors will reduce the competing
opinions and input that Jurors can give to a case and their deliberations.
There are consider dangers when starting long or complex cases
with the few Juror anticipated to be required. Inevitably illness
or stress will account and will lead to cases having to be abandoned
part heard. The perception, because it is an Inquisitorial task
the less Jurors need to be involved is completely misplaced. In
fact the Jurors at Coroner's Inquest have a far greater task than
Juries in criminal cases because they are answering simple yes
and no questions. Jurors may need to complete a series of complex
findings of fact. They may wish to announce their findings in
answer to a series of questions ie Middleton narrative verdicts.
There are considerable dangers going along this route.
Section 15
No comment.
Section 16
This minimises the number of Jurors required
to agree their verdict. You could almost have a split Jury but
with simply one member more agreeing. That plainly could be prejudicial
to the interests of Justice and the individual case.
Section 17
This largely represents the current position
and obviously without reference to committal proceedings which
no longer, in reality, exist.
Section 18
This provides a considerable weapon both tactically
and practically to a prosecuting Authority to request an adjournment.
What is "an exceptional reason" for not suspending an
investigation.
Section 19
No comment.
Section 20
No comment.
Section 21
This largely reflects the current position.
Section 22
This largely reflects the current position.
Section 23
No comment.
Section 24
Does this mean that a Jury does not need to
be called under mandatory grounds? Sub-section 3 provides a discretion.
Despite their being numerous references in the draft Bill to Chief
Coroners and Senior Coroners, in this instance it is the "Coroner"
who is actually to make the decision. Precisely under what basis
would the discretion be exercised?
Sub-section 9 is in place to preserve the existing
law so that inconsistent decisions are not reached by different
Tribunals. What if further evidence comes to light which could
or may alter and in some cases would definitely alter the conclusion?
Surely there has to be an element of discretion in the light of
fresh evidence and information coming to light.
Section 25
Appropriate time limits should be put in the
section so that we should be informed promptly.
Section 26
References to "Registered Medical Practitioners"
are out dated. It should refer to "appropriately qualified
Pathologists" or like phraseology. This needs updating because
claiming to be a doctor involved in the care of the deceased would
be instructed to carry out a post mortem examination.
Sub-section 4 indicates that the report should
be agreed to the Senior Coroner "in such form" as the
Coroner may require. What does this involve precisely?
Section 27
If it means what it is intended to mean from
explanatory notes then this is welcome.
Section 28
No comment.
Section 30
Reference once again to the "Senior"
Coroner is misleading. It is plainly the Coroner who is in charge
of the actual case whether that be Senior, Area of Assistant Coroner
is to give the direction. The real problem with this provision
is precisely upon what basis could any discretion be exercised.
There will be clearly public interest claims by the media. Leaving
it up to draft Rules which have not yet seen the light of day
is fraught with danger. It also has to be HRA compatible. I foresee
numerous Appeals and cross Appeals.
Section 31
This largely represents the current law. No
specific comment.
Section 32
This provision remains anachronistic. Any expenditure
incurred by a Coroner in connection with investigation and Inquest
should be promptly reimbursed. Reference is made to Regulations
but once again no details are provided and the devil will be in
the detail. Are Coroners still to be potentially personally liable
if their Local Authorities do not agree with the expenditure incurred?
The idea of reimbursement is totally at odds with current modern
judicial practice. If taken to the letter of the law, a Coroner
would have to try and arrange some sort of massive overdraft facility
which is then reimbursed at the whim of the Local Authority. This
provision should be replaced with a simple indemnity requiring
the Local Authorities to discharge all payments. A code of Practice
can be drawn up over contentious matters so that prior authority
is sought. If the Local Authority fails to agree to incur the
expenditure, then there has to be an Appeal process for the Coroner.
I have had potential experience of potential conflicts of interest
whereby a Local Authority who is the Paymaster for the Coroner
is also a major interested party at an Inquest who were trying
to control and govern expenditure into the contentious case in
question. That plainly raises issues of independence of judicial
decision making and conflict of interest.
Section 33
Reference is made at the start of this document,
precisely what is meant by Local Authority providing suitable
accommodation. Implications of capital expenditure and substantial
premises suitable for the needs of the bereaved and for conducting
hearings is significant.
Sections 34 to 40
I reiterate this is an historical anachronism
which should be abolished. Coroners should be able to concentrate
on proper judicial functions. The objections from the DCMS do
not stand up to critical analysis. In this day and age we should
not be dealing with antiquated judicial proceedings to try and
determine whether something qualifies for Treasure. It has no
place in a modern system and should be replaced by a procedural
requirement to report matters to the British Museum with a subsequent
civil Appeal process to challenge their adjudication. It creates
a tier of bureaucracy which is totally unnecessary.
Section 41
No comment.
Section 42
This is an area ripe for Appeals. Again reference
is made to the Senior Coroner conducting the investigation. It
will plainly be the Coroner whoever that might be whether that
be Senior, Area or Assistant Coroner who is actually doing the
case in question which needs to give the notice. To try and go
via some bureaucratic procedure up to the Senior Coroner is unnecessary.
Section 43
This is a reflection of current law.
Section 44
This is a sensible improvement in procedure.
Section 45
This is a sensible improvement in procedure.
Section 46
Once again reference is made to a Senior Coroner
rather than the Coroner in question dealing with the enquiries
and investigation. Once again this is an area ripe for Appeals
because of the circumstances which have to be taken into account
and weighed.
Section 47
Sub-section 2 as currently drafted is fraught
with difficulty and interpretation. What is the interpretation
of "as he thinks necessary"? What if there are grounds
actually to give a direction to the contrary because of the circumstances
and peculiarities of the evidence in question? It would be better
to exclude this sub-section entirely and leave the issue silent.
As a matter of normal routine, a Coroner has to give directions
to a Jury upon, for example, Rule 37 evidence under the current
Coroner's Rules and the weight to be attached to various pieces
of evidence in any event.
Section 48
This is simply a reflection of the current law.
Section 49
Strangely in comparison to Section 47 there
is no reference to a direction as to the weight to be attached
to this evidence? What is the position and why is there an anomaly
between the two?
Section 50
In general terms, the power of search and seizure
is to be welcomed and would probably be used in extreme cases.
Once again reference is made to the Senior Coroner conducting
the investigation and it plainly may involve an Area or Assistant
Coroner
Section 51
Who is actually going to conduct the searches.
Are they going to be Coroners Officers. Who are they going to
be employed by? Are they then liable for criminal law/civil prosecution?
Can or would the Coroner in question incur personal liability
and be subject to proceedings? It is obvious that where it is
based upon "reasonable grounds for believing", that
is going to be subject to challenge. What is the Coroners indemnity
in this position and those acting on his behalf under his authority.
Section 52
This largely represents the current law and
no other comment necessary.
Section 53
The arbitrary limit of 40 days has no doubt
been chosen with the best intention to prevent distress to bereaved
relatives but in practice it will cause difficulties. The systems
of Appeals will become bureaucratic and expensive.
Section 54
See previous comments.
Section 55
See previous comments.
Section 56
What qualifications and experience does a Chief
Coroner have. Are they going to be an existing Coroner Are they
going to be some other judicial figure? Will they have any knowledge
and experience of the Coronial system?
Section 57
This is sensible.
Section 58
Is this going to be in addition or complimentary
to the existing and current complaints system operated by the
Lord Chief Justice covering Coroners?
Section 59
No comment.
Section 60
See previous comments concerning the Appeals
process.
Section 61
See previous comments. It will become cumbersome,
time consuming and expensive. It will delay examination of bodies
and have an impact on the storage. It can also prejudice results
of examinations because of the delay involved.
Section 62
No comment at this stage.
Section 63
No comment.
Section 64
No comment but necessary in view of the anticipated
new system.
Section 65
The current drafting is open to many interpretations.
What force does any guidance have? Does it have to be taken into
account? Does it have to be followed? What if the Chief Coroner
and other Coroners disagree with it? There seems to be no reason
why a case could not be conducted in contradiction to the expectation
formulated by the Lord Chancellor's guidance. It seems that a
new independent system is created but which still remains liable
to political interference from political appointee of the Government
of the day who is not head of the Judiciary.
Section 66
Plainly the draft Regulations should be made
public and subject to detailed scrutiny before the Act is laid
before Parliament otherwise it is putting the cart before the
horse.
Section 67
Ditto with regard to the Coroners Rules.
Section 68
Ditto. What is the sanction for non-compliance
by Solicitors and Barristers with directions given? Could wasted
costs orders be made? How are they to be enforced?
Section 69
See previous comments concerning treasure.
Section 70
This would have to be amended to include either
the Area or Assistant Coroner actually dealing with the case in
question and not just the Senior Coroner.
Section 71
The compensation provision only indicates the
Lord Chancellor "may" provide for payment of compensation.
All existing Coroners would want to know precisely what the basis
of this was. Having a standard amount of compensation would clearly
not be equitable in any sense. A Coroner nearing or very close
to retirement would be wholly different to a much younger Coroner
of many years of potential income and pension accrual anticipated.
Many Coroners who are technically referred to "part time"
substantially rely on this as a source of income. In some cases
it is their actual potentially only income. The notion that part
time Coroners are all Solicitors in private practice who can simply
go back to their practice is total nonsense. Many of us have had
to give up private practice to do the job. We have no Partnerships
to go back into. We have been out of practice for several years.
We are wholly disadvantaged and any compensation must be based
on equitable principals to pay real compensation for the losses
involved of a freehold office.
Section 72
This was an historical anachronism which should
have been abolished long ago.
Section 73
Necessary consequential saving provisions but
again one would need to see the detail to be able to comment.
Section 74
Technically necessary.
Section 75
Largely represents the current law.
Section 76
The qualification under Sub-section 2 (a) is
fraught with difficulty. The other categories largely reflect
the current law. As a matter of legal interpretation you could
become someone's "partner" after a few days of a relationship
which only the partner in question could substantiate which may
be in considerable conflict with other members of the family within
the definition currently drafted. In reality there are sometimes
very much competing and different interests and views amongst
what has colloquially been described as "next of kin"
or the "family". In practice this is extremely difficult
if not impossible to precisely define.
Section 77
It is not possible to comment further at the
moment pending regulations and Coroner's Rules being provided.
Section 78
Noted.
Section 79
Noted. But why does it not include other sections
of the Act eg Sections 71 and 72?
Sections 80 and 81
Noted.
Schedule 1
This will require careful and appropriate consultation
with current Coroners and Local Authorities. The other provisions
relating to appointment and location of office are largely common
sense.
Schedule 2
Noted although it is strongly recommended that
Treasure jurisdiction of Coroners should be abolished.
Schedule 3
Ditto.
Schedule 4
Who is going to be the complainant in relation
to these offences? Will it involve the Coroner having to give
evidence? Surely there could be appeals against questions which
a Coroner asks or does not ask which he allows or does not allow
and the consequences thereof which flow from that.
Schedule 5
The fees and expenses paid to witnesses and
jurors largely affect the current position.
Schedule 6
Noted. Is there going to be a regional reflection
in the Deputy Chief Coroners? Are they going to be existing Coroners
with considerable experience of the Coronial system?
Schedule 7
Noted.
Schedule 8
It is thought that this will work much like
the Human Tissue Authority but will require a great deal of time
and support. Is there not a danger that it will become over represented
with particular pressure groups interest?
Schedule 9
It would appear that the Chief Coroners and
the Deputy Chief Coroners would attract Judicial Pensions the
same as the main Judiciary yet the Coroners actually doing the
day to day work still have Local Authority Pension Schemes which
are far less generous and require much longer contribution periods.
This is plainly inequitable. All Coroners should be introduced
to the proper Judicial Pension Scheme arrangements the same as
for example District Judges both Magistrates' Court and Civil.
Schedule 10
Appeals. Is it clear that there should be no
other appeals as secondary legislation involved?
EXPLANATORY NOTES
AND THE
DRAFT CHARTER
FOR THE
BEREAVED
The Charter sets out some laudable and appropriate
aims and objectives as well as standards of service. In briefing
meetings to date the responsible Minister and Coroner's Service
Team have indicated that the Charter sets out the current expectation
of a standard of Service which is meant to be provided at the
moment. As previously indicated the Luce Report clearly identified
that the current service was vastly under resourced and under
staffed. To suggest that the new service could be brought in and
not have any effect on manpower is totally irreconcilable with
common sense and experience. To provide the service anticipated
will be far more labour intensive. I believe every Coroner would
be delighted to provide the service anticipated if they had the
resources in both time, money and manpower to deliver it. If as
presently anticipated the same arrangements will continue for
the funding and provision of Coroners Officers, neither the Police
Forces not the Local Authorities would wish to take on the responsibility
because it will clearly have to increase. Where is the funding
to cover this? The Charter sets up numerous avenues of potential
appeal and challenge. What is the investigation Report referred
to in paragraph 8. What does it comprise? This is to be determined
from Regulations or Coroners Rules, plainly one needs to see them
before being in the position to comment. What is the basis or
standard of proof to be applied in such an investigation report?
Can it include speculation? Should it hypothesise?
REGULATORY IMPACT
ASSESSMENT
I personally believe that the basic start up
costs for some of the new provisions such as the Office of the
Chief Coroner etc, clearly are probably within the scope or level
anticipated. However, the long-term future, for example, for the
provision of suitable accommodation and the provision of staff
in order to service the new system is considerably underestimated.
In larger Coroners Districts, the small Authorities, eg the Isles
of Scilly could be bankrupted by an emergency event or incident
if they are not in a position to ensure against it. What would
be the level of their contribution? Why should the bigger Authorities
pick up the balance of the Bill.
The Coroner Service is unique. In order to create
a career structure and interest for those persons prepared to
be assistant part time Coroners let alone full time Area or Senior
Coroners have to be a sufficient number and turnover of the vast
majority if not all the current whole time Coroner positions could
and indeed should be retained and enhanced. Working on simple
population figures does not reflect local needs so as the peculiarities
of jurisdictions such as big Cities with several major Hospitals,
Prisons etc. Areas formed should be concentrated in those areas
without whole time Coroners at the present.
Nigel Meadows
HM Coroner, Plymouth & SW Devon
July 2006
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