Prejudice of inquests
29. Ms Keeble argued that the likelihood of prejudice
to coroners' proceedings was minimal because the findings of an
inquest could not be of anyone's guilt. She used this argument
to support her view that coroners' courts should not be covered
by the rule:
Another of the principles underpinning the sub
judice rule, is that people have a right to a fair trial which
should not be prejudiced by public debate or media coverage. However,
this is not an issue for coroners' courts. Even where there is
a jury, they are not deciding on the innocence or guilt of a defendant.
Coroners' courts have a limited range of decisions open to them,
and cannot decide on the culpability of anyone. So no debate on
a matter before a coroner's court can influence the right of anyone
to a fair trial in that court.[18]
30. Other evidence given to the Committee, however,
has challenged this claim. For example, the Bar Council submitted
evidence likening proceedings in coroners' courts to any other
civil or criminal courts:
The scope for prejudice to coroners' proceedings
is the same as it is in the case of any other proceedings, whether
civil or criminal. When the coroner is sitting with a jury, the
risk of prejudice is greater, but even where there is no prejudice
to the fact-finding process, Parliamentary comment may put pressure,
or may appear to put pressure, on the jury or on the coroner sitting
alone, and may cast doubt on the validity of the outcome of proceedings.[19]
This view was supported by the Coroners' Society
of England and Wales, who pointed to the recent introduction of
'narrative judgements' as further justification for the rule:
We are all concerned to see that comment outside
the court room should neither affect nor appear to affect decisions
made either by Judge or jury in cases where innocence or guilt,
or liability to compensate is in question.
The decisions made by an inquest are admittedly less
specific, but this brings its own problems. The range of verdicts
is no longer seen as restricted to short traditional forms e.g.
"suicide", "unlawful killing", "accidental
death" etc. Verdicts in the form of a narrative saying what
happened and how are becoming commonplace. These still do remain
subject to legal restraints under rules 36 and 42 of the Coroners
Rules 1984. As a result an inquest is not permitted to make findings
of criminal liability on the part of a named person, nor to make
findings of civil liability. Nevertheless they now have a very,
very much wider ability to express a view of what happened unaffected
by technical legal definitions.[20]
31. A comparatively recent development in this area
relates to the interpretation of Article 2 of the European Convention
on Human Rights. The European Court of Human Rights has ruled
that this Article imposes upon the state a duty to carry out an
effective investigation into a death where there is reason to
believe that the deceased died in contravention of Article 2 (right
to life). The memorandum from the Law Society notes the effect
of this interpretation upon inquests:
the inquiry must cover not only the means by which,
but also the broad circumstances in which, the deceased came by
his death. This will inevitably cover questions of system, regime,
training and so on. As the scope of the inquest has therefore
broadened, so too has the possibility of comments made in Parliament
about a death or deaths prejudicing the relevant inquest(s).[21]
32. In its memorandum, the Law Society expanded on
the types of coroners' decisions that might be prejudiced, apart
from the final verdict:
Firstly, it should be noted that coroners make many
procedural decisions after adversarial argument, e.g. whether
to sit with a jury, whether to permit a particular line of questioning,
whether to adjourn to call a particular witness, what conclusions
to leave to the jury, and so on. There is no relevant distinction
between this process of reasoning and that carried out in civil
and criminal courts. Those involved in and affected by such decisions
have the same expectations of fair process. Secondly, even where
coroners are inquiring into what happened, they must inquire judicially,
obeying the rules of natural justice, and following the relevant
rules of procedure. Again, this is the same obligation as other
judicial officers. It is quite different from, say, a minister
or a local authority exercising a statutory power. Thirdly, there
are in any event strong links between the inquest system and the
other courts.[22]
It went on to give an example of the type of prejudice
that could be caused by parliamentary comment, saying that 'One
of the main areas where politicians are likely to want to comment
pre-inquest in ways which will prejudice the coroner's decisions
is the scope of the inquest.'[23]
33. In oral evidence, we asked Lord Goldsmith, Attorney
General, whether he could give an example of the type of prejudice
to which coroners' courts might be liable. He responded:
An example which would be very clear where there
might be prejudice would be if there were a debate in which there
were strong views being expressed that, for example, a particular
safety mechanism or lack of safety mechanism operating in a particular
public industry was likely to cause death. That might be the very
issue which the inquest was being asked to consider: whether the
death was by accident or by some criminal act or gross negligence'[24]
34. We also asked Lord Goldsmith and the Clerk to
consider the recent breaches of the rule in the House of Lords
and the appearance that no prejudice had resulted from these discussions.
Lord Goldsmith said:
I do not think you could jump to that conclusion
from those two examples because it obviously depends on the circumstances
of the particular cases. I am sure it is right that there will
be circumstances in which things can be said about ongoing inquests
which would not prejudice those.[25]
The Clerk added that prejudice was normally not evident
until proceedings took place and, in most cases, the inquests
relating to these cases had not yet been held.[26]
Comity and coroners' courts
35. Witnesses emphasised that the principle of comity
was as important as the risk of prejudice where coroners' courts
are concerned. The memorandum submitted by the Law Society defined
comity as follows:
[it] is to separate legislative and executive powers
on the one hand from judicial ones on the other, in order to demonstrate—and
to ensure—the independence of the judicial branch of government
and the integrity of its processes. For this purpose, there is
no difference between different kinds of judicial officers or
different kinds of proceedings. This function does not serve the
rights of litigants, but instead underlies the structure of government
in a democratic society.[27]
The Law Society went on to give an example:
of course we hope that coroners, like other judges,
would be sufficiently independent to avoid being influenced by
what was being said outside. But it is important to notice that
this in itself may have unwelcome features. For example, suppose
there is discussion in Parliament of a particular death or deaths,
and suggestions are made that the inquest should cover this or
that aspect of the situation, or that such and such an expert,
of a particular type, should be called to give evidence. This
will embarrass the coroner when he comes to decide on the scope
of the inquest or whether to call an expert, and if so of what
type. He cannot be seen to have been influenced by the politicians.
That is the whole point of the separation of powers.[28]
36. The memorandum submitted by the Clerk of the
House concurred with this view:
Nor is the purpose of the sub judice rule
solely to prevent prejudice to individuals involved in cases which
are still to come to court. As I said in my oral evidence to the
previous Procedure Committee, Parliament has imposed this self-restraint
on itself out of consideration for "the mutual respect that
two central organs of the constitution with different functions
ought to have one for another". Parliament and the courts
(including coroners' courts) have distinct functions, and it is
right in principle that each should allow the other to do their
job with a minimum of cross-interference.[29]
37. The evidence we received suggests to us that
the principle of comity is as important as the risk of prejudice.
The sub judice resolution of the House of Commons aims
both to minimise the chance of damaging any trial or inquest and
to preserve the important distinction between the jurisdiction
of Parliament and the Courts.
38. We conclude
that the argument that coroners' courts should remain within the
scope of the rule due to the possibility of prejudice is persuasive.
Taken alongside the long standing precedent for inquests to have
been included within the House's implementation of its sub
judice rule, and the principle of comity, it forms
a convincing case. We therefore concur with the view expressed
in our predecessors' report that there is no justification for
removing the protection of the rule from coroners' courts. Nevertheless,
it is understandable that Members may sometimes feel that a case
deserves debate despite the resolution. We consider how the House
should best address these legitimate concerns in paragraphs 77-85.
15 Ev 7 Back
16
Ev 20 Back
17
Qq 107-109 Back
18
Ev 7 Back
19
Ev 49 Back
20
Ev 34 Back
21
Ev 43 Back
22
Ev 42 Back
23
Ev 42 Back
24
Q73 Back
25
Q102 Back
26
Q144 Back
27
Ev 42 Back
28
Ev 43 Back
29
Ev 21 Back
