Memorandum from the Law Society (P 33)
INTRODUCTION
This response has been prepared on behalf of
the Law Society by the Law Society's Inquest Working Party. The
Law Society is the professional body for solicitors in England
and Wales. The Society regulates and represents the solicitors'
profession and has a public interest role in working for reform
of the law.
The Society recognises the difficulty that Parliament
is faced with due to the application of the sub judice
rule in relation to proceedings in coroners' courts. However,
the Society does not believe that the sub judice rule should
be modified as suggested by the House of Commons Procedure Committee.
This evidence seeks to explain the reason for the Society's view
and seeks to explain the work of coroners for better understanding
of the issues. This evidence also includes a brief analysis of
the point at which coroners' inquests become `active' for the
purpose of the rule, however it does not seek to address the Chair's
discretion to disapply the rule nor the use of the sub judice
rule by other Parliaments or legislatures.
USE OF
THE SUB
JUDICE RULE
IN RELATION
TO CORONERS'
COURTS
The sub judice rule has two main functions.
One 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.
The other function, however, is to help ensure the
fairness of the legal process in individual cases, by protecting
decision makers, witnesses and others from material and other
influences which come from outside the process itself and which
might predispose a decision maker to a particular result, or a
witness to give particular evidence. It is part of the protection
conferred by English law upon participants in the legal process,
and helps the UK to comply with its international obligations
to ensure the fairness of legal proceedings, in particular the
ECHR.
The first function clearly covers all exercise of
the judicial power of the state, including inquests. If coroners
and their juries can be instructed on what to do, the legislative/executive
branches will not be properly separated from the judicial, even
if (for example) circuit judges and their juries are not specifically
instructed on how to decide cases.
The second function also covers inquests as well
as ordinary litigation. Firstly, it should be noted that coroners
make many procedural decisions after adversarial argument, eg
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.
INQUEST/CRIMINAL
COURT OVERLAP
Take as an example the (frequent) case where suspected
criminal activity results in death. This could be the result of
terrorist acts, of breaches of health and safety legislation,
road accidents, hospital negligence, etc. The legal consequences
are (i) there must be an inquest, and (ii) there may be a criminal
prosecution and/or civil proceedings. All these proceedings will
be focussed on the same events, albeit from different viewpoints.
The inquest procedure will probably start first, as there is a
dead body, an autopsy will be carried out within a day or two,
and an inquest formally opened.
The coroner is informed if subsequently a person
faces criminal charges including a "homicide offence".
In that case, the coroner must adjourn his inquest until the criminal
charges have been disposed of. If he later resumes the inquest,
the inquest verdict must not be inconsistent with that in the
criminal proceedings. If there are no criminal proceedings (which
is very commonly the case in custody death cases), the inquest
will proceed, but if evidence then arises during the inquest suggesting
the commission of a homicide offence, the coroner must adjourn
the inquest and refer the matter to the CPS.
In addition, there are a number of procedural rules
that protect the rights of a person who may, now or in the future,
be accused of a homicide offence. The coroner must warn a witness
that he need not answer incriminating questions. If the inquest
is held with a jury, the coroner must give certain warnings to
them, before they make their decision, about what can and what
cannot be included in its content. A conclusion of unlawful killing
(for which the elements of which the inquest must be satisfied
are the same as for the criminal offences of murder or manslaughter)
may only be returned if the decision maker is satisfied to the
criminal standard of proof. It is true that at an inquest no-one
is on trial, and that the verdict must not name anyone as responsible
criminally for the death. However, the reality is that the `virtual
accused' is on trial before public opinion. Consequently the proceedings
are treated as extremely prejudicial from that person's point
of view, leading to the need for all the procedural protective
rules just mentioned.
At the very least, the close links between inquests
and criminal proceedings mean that it is undesirable to make any
significant changes to the sub judice rule for inquests
unless similar changes are being made to the rule in relation
to criminal proceedings.
THE SCOPE
OF INQUESTS
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. It must therefore
be noted that, if an inquest was conducted today under the law
as it was applied, say, 30 years ago, the scope for prejudice
would actually be very small, and therefore the scope for non-prejudicial
comment correspondingly large.
This is because 30 years ago the scope of an inquest
was accepted to be very narrow: it covered only who the deceased
was, and when, where and by what (direct) means the deceased came
by his death. Consideration of background circumstances, system
or regime was generally excluded. So, for example, if there was
a fire and people died in it, the result would be that W, X, and
Y died of burns sustained in a fire at Z on such and such a date.
There would normally have been no consideration of how the county
organised its fire service or the ambulance service. The inquest
might not have even investigated how the emergency services were
informed in the particular case of the fire and how long it took
them to respond.
It is very different nowadays. The law was developing
to some extent before the Human Rights Act 1998, but without doubt
that Act has radically altered the landscape. It is now clear
that, if an inquest is to comply with Art 2 of the ECHR, 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).
Who is affected?
Laymen are thought to be most at risk from prejudicial
comment. Thus the paradigm case for the operation of the rule
is where a lay jury decides the facts. This most frequently occurs
in criminal cases on indictment, though the more serious inquest
cases are also cases where a jury sits to decide the facts. This
occasionally happens even in civil litigation cases. However,
it is not only juries that are protected by the rule. There are
also lay magistrates sitting in magistrates' courts (criminal
and civil jurisdiction). Witnesses too can be affected by outside
comment, and may be tempted to tailor their evidence to avoid
certain consequences from outside sources.
It should be noted that, so far as inquests are concerned,
the law requires a jury in one of four cases, and gives the coroner
discretion to sit with one in all others. Where a case falls into
one of the four compulsory cases, it will be known from the outset
that there will have to be a jury. However, the converse is not
true. If a case is considered initially to fall outside the compulsory
cases, it is not certain that there will not be a jury when the
inquest is resumed. The coroner's appreciation of the facts may
change, so that he may later become aware of circumstances requiring
a jury to be summoned. Or he may accede to an application—maybe
not made even until the day fixed for the resumed hearing—by
the family of the deceased that in the exercise of his discretion
a jury should sit with him to hear the case. We note that it would
be very hard on the applicants in such a case to be told that,
were it not for prejudicial comments made in Parliament, the coroner
would have exercised his discretion in their favour, but that
the effect of the comments is such that a jury might not be able
to deal fairly with the case and so the coroner will sit alone.
Yet this scenario would be perfectly possible if the rule were
modified.
The consequence of this is that it is difficult to
fix a point in time by which it ought to be known with certainty
that there will or will not be a jury at the resumed inquest.
Of course with the simplest and most straightforward cases, one
can be reasonably confident that there will not in fact be a jury.
However, those are not the cases that MPs are likely to want to
comment on. They will want to comment on the cases of disasters,
multiple homicides, hospital neglect etc—the very cases
where an application to sit with a jury may be acceded to at a
late stage.
Turning now to the position of judicial officers
themselves, 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. If therefore
he decides he should so extend the scope or call the witness he
will obviously be concerned (at the least) to put some time between
the Parliamentary debate and his decision. On the other hand,
if he would otherwise decide not so to extend the inquest or to
call the witness, he will be concerned that he may be attacked
in the media and elsewhere for ignoring what the MP says. He cannot
win. At the very least, this is likely to slow down the inquest
process, to allow the "fade factor" to have maximum
effect. That is hardly in the public interest. The better course
is that politicians and the media refrain altogether from making
suggestions as to what the inquest should cover, or who should
be called to give evidence etc.
Plainly the easiest way to achieve that is not to
discuss the matter at all, though that may be a counsel of perfection.
In any event, it must be understood that, if inquests are discussed
before they have been concluded, then this will create problems.
In particular it will create the risk, especially where a jury
inquest is concerned, that a person aggrieved by the result of
the inquest successfully applies for judicial review of the verdict,
on the basis that, because of the prejudicial comments made in
Parliament, it was not possible to conduct the inquest proceedings
fairly, and the verdict must be quashed. This quashing may be
with or without a fresh inquest being ordered, depending on the
circumstances, but with all the waste of costs that quashing the
existing verdict implies. Indeed, a rerun inquest where the first
was conducted with a jury in the exercise of the coroner's discretion
would probably have to be conducted without a jury in order to
ensure a fair hearing. Since Parliament is not bound by the ordinary
rules contained in the Contempt of Court Act 1981, the decision
of whether to take that risk is one for Parliament itself. But
if the risk matures, it will be Parliament's responsibility, and
not that of coroners or of those who take part in inquests.
When does a case become "active"?
The Contempt of Court Act 1981 operates from the
time the inquest is opened. In inquest terms, this has the merit
of being an event whose occurrence is clear and unambiguous, even
if, as the law stands, there is no fixed point in time at which
it must occur. Other possibilities include (i) the date when the
date is fixed for the resumed hearing; (ii) the date on which
the jurors are summoned, and (iii) the first day of the hearing.
Of these, (iii) is obviously far too late in the
day to avoid prejudice to the inquest, whilst (ii) only applies
to jury cases, and will be capricious, depending on the practice
of the particular court. One court might summon jurors three weeks
before the hearing, whilst another may do so three months before.
Option (i) has some attraction, and corresponds in broad terms
to the date when the date of the trial is fixed in criminal and
civil litigation. But it too is capricious. Some coroners fix
resumed hearings from the beginning, and then push them back from
time to time when it becomes clear that they cannot be met. Even
if they are realistic they can be altered by subsequent decision,
which is much more common than alteration of trial dates in criminal
or civil litigation. Further, coroners could be tempted to fix
a date a long way off well in advance just so as to attract the
benefit of the rule. Moreover, given the relationship between
the inquest process and the criminal justice system, in cases
where there are or may be criminal charges, there seems no good
reason for having dates for engaging the rule which are different.
Perhaps a better approach may be to distinguish different
kinds of information, ie to have not one rule, but two. One would
deal with the core inquest information, and would be strict, and
bite early on. The other would deal with wider social issues,
less likely to be raised in inquests, and could be less strict,
or bite later, once the issues to arise at the inquest were clearer.
With such an approach, the critical question is how
to distinguish these two concepts. If it could be done, drafting
in advance would be best. However, given the huge variety of potential
fact situations, this may prove impossible. Another suggestion
would be to rely on some kind of self-certification by the coroner,
who states when he opens the inquest(s) what he considers the
core issues to be. Then, if he later considers that further issues
arise, he issues a further certificate. Plainly this imposes an
extra burden on the coroner concerned. One further problem with
this is that it might lead to multiple communications between
the Parliamentary authorities and the coroner, fuelling suspicion
of an establishment "cover up".
January 2006
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