We are grateful for the opportunity to expand
upon the reply we made to the earlier inquiry of the Procedure
Committee into the sub judice rule of the House, and also
to reflect upon the other contributions made in evidence to that
Committee. Since the observations I tendered in relation to your
kind invitation on the last occasion related exclusively to inquests
may I simply refer to them as HC 125 (Ev 45) and amplify rather
than repeat them here.
1. Approximately 70% of all inquests are heard
within six months of the death, but it may put this in context
to say that even in the more straightforward traffic deaths the
investigation file will frequently arrive too late for that. We
do of course appreciate that it is in relation to the cases that
wait longer that concern most keenly arises.
2. It may therefore be appropriate very briefly
to sketch some of the more frequent causes of delay in getting
certain classes of inquest heard.
They tend to share some of these common characteristics,
namely they are cases which:
— perhaps most importantly require
that the inquest investigate with regard to Article 2 ECHR the
performance of the State in its efforts to protect Life;
— require the coroner to summon a jury;
— require that jury to be accommodated,
sometimes for weeks, for which a courtroom has to be found. (Following
widespread court closures there is an acute shortage of suitable
courts to borrow or hire.);
— require a long and detailed police investigation;
— require that the results are then passed
to the Crown Prosecution Service to consider whether there is
to be any prosecution (many such must precede and may replace
an inquest);
— require that a parallel or successive
investigation is carried out before the inquest can be heard
by the Police, CPS, Health and Safety Inspectorate, Independent
Police Complaints Commission, Prison and Probation Service Ombudsman,
and others, sometimes more than one of them at the same or successive
time, and sometimes even into the activities of each other.
The net result can often be that the coroner does
not receive files to start evaluating until more than two years
after the death. Only after (s)he has read them can he begin the
preparation process of pre-inquest disclosure, making a first
selection of witnesses, identifying issues, estimating length
of final inquest time and arranging the necessary pre-inquest
Review hearings.
3.1 I should have mentioned these interim hearings
in my submission to your earlier inquiry. They are very often
held in public, but the press are warned that they cannot be reported
until after the inquest.
It is now almost universal practice, voluntarily
introduced, to have a number of these hearings before a major
inquest in a manner modelled to some extent on the long-standing
practice in the civil courts. The purpose is to resolve the problems
already mentioned together also with securing the availability
of a court, expert witnesses, Counsel, etc., in order that the
inquest can be ensured ready to run properly when the jury are
summoned.
3.2 The need for such interim hearings and use
of them has become more widespread since the widening of the Coronial
jurisdiction which resulted from modern interpretation of the
application of Article 2 of the European Convention on Human Rights.
Some inquests now have to serve as the first port of Inquiry as
to whether or not the State has or has not discharged its duty
to protect life under Article 2. ECHR.
We can very well appreciate that this in particular
is an area where Members of your House and the local coroner would
have parallel areas of concern, but the matter I wish to highlight
is the effect of the Article on the scope of some inquests where
the State is involved. The scope of many inquests has thereby
been greatly enlarged while the appropriate limitation by terms
of reference giving boundaries of inquiry has become very hard
to discern. Argument about the scope of enquiry has introduced
still more hours of contested discussion, formal legal submissions
and ensuing argument all heard in court some months before the
final inquest itself takes place. The decisions then made are
themselves occasionally also Judicially Reviewed before the final
inquest hearing to which they relate can be concluded.
3.3 Furthermore, it is now not uncommon for a
coroner to receive various written and opposing submissions as
to how the inquest should be dealt with which will be dealt with
in writing. The decisions given may well be seen as affected by
reports of things said by Members in your House. I again respectfully
agree with the Attorney General that comments initiated by the
media themselves are not seen as capable of affecting courts in
the same way, nor as similarly authoritative as those made by
Members in your House.
An inquest may therefore be acutely and publicly
"active" not only when it is first opened, but during
the various pre-Inquest Review hearings well before it comes to
the final hearing.
In addition the period after the inquest opening
is often intensely occupied by Police and the Crown Prosecution
Service considering at length whether any form of prosecution
relating to causing the death is to be mounted. The protection
your House currently accords the inquest protects those processes
simultaneously, but would not otherwise do so unless separate
thought was given to it.
4. This may be the appropriate point to explore
the distinction between the verdicts and decisions made in the
different kinds of court. We are all concerned to see that comment
outside the courtroom 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 eg
"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.
Could I therefore most earnestly urge upon you this
proposition:
That while an inquest does not determine the legal
rights and freedoms of an individual or body it now has a considerably
increased capacity to affect them and to affect their public standing
and reputation.
Ensuring a transparently fair and independent verdict
in this new situation is a matter of intense concern to coroners
themselves, quite separately from concerns about the sub judice
rule. Comment outside the inquest has a considerable power to
affect the phrasing of such new "narrative verdicts",
particularly as they are not subject as are the older verdicts
to precise legal definition.
5. I learned much from the evidence of Mr Roger
Sands and Helen Irwin[1]
about the perception and diligence applied to make the sub
judice rule work well. It drove me to reconsider some form
of redefinition of when an inquest is active or some form of time
limit to both of which you referred at paragraph 24 of the First
Report. I have tried to envisage the work that would be involved
in enquiries to various coroners about the progress and position
of inquests, given what that now entails.
The specific questions were:
Should there be a separate sub judice rule
for coroners' inquests?
My response would be that inquests are so inextricably
tied in with the processing of both civil and criminal court processes
that it is not practicable to separate them in this way.
Should the point at which coroners' inquests become
"active" for the purposes of the rule be redefined?
It would be helpful to be able to do it, but my attempts
suggest to me no practical and widely applicable general definition
that would assist.
While regretting my inability to generate any new
solution, may I say on behalf of my colleagues that we do very
much appreciate the nature of the concerns raised and are again
grateful for the fresh opportunity to contribute.
Victor Round
Hon Sec
January 2006
1 HC 125 (2004-05) Ev 1-8. Back
