|Coroners And Justice Bill - continued
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204. This clause sets out the circumstances in which senior coroners must conduct investigations in relation to treasure, and the purpose of such investigations. It translates the current jurisdiction of coroners as regards treasure into the new context of investigations under Part 1 of the Bill.
205. The senior coroner is required by subsection (1) to conduct an investigation into an object if notice has been given to him or her in accordance with the Treasure Act 1996 (the 1996 Act) and if it appears the object was found within his or her area.
206. Senior coroners, under subsection (2), have discretion to conduct an investigation into objects which are suspected to be treasure under the 1996 Act and if it appears they were found within their area but where no notice has been given to the senior coroner.
207. Subsection (3) enables a treasure investigation to be transferred by agreement of the senior coroners involved or by direction of the Chief Coroner, in the same way as an investigation into a death.
208. Subsection (4) explains that the purpose of investigations is to establish whether the object is treasure or treasure trove and if so, who found it and where and when it was found.
209. Subsection (5) allows the senior coroner to hold an inquest as part of their investigation concerning the object in question, but does not require that he or she does so. Most treasure investigations are currently concluded without an inquest, and this is likely to continue.
210. Subsection (6) states that treasure inquests should generally be held without a jury, but there is also discretion for the senior coroner to summon a jury where he or she believes it is necessary.
211. Subsection (7) obliges the senior coroner to make a determination at the end of an investigation, whether or not an inquest is held as part of that investigation. The senior coroner will determine whether or not a particular object is treasure or treasure trove and if so, who found it, where and when it was found.
212. This clause gives effect to Schedule 2 which provides for England and Wales to be divided into coroner areas and gives the Lord Chancellor the power to set and alter these boundaries (by order subject to the negative resolution procedure) after consultation with the relevant local authorities, Welsh Ministers, and any other persons the Lord Chancellor thinks appropriate. Each coroner area will cover either the whole of one local authority area or the whole of two or more local authority areas (although this provision will not apply in relation to coroner areas specified in the transitional order made under paragraph 1(1) of Schedule 20).
213. Where the area includes two or more local authorities (paragraph 3 of Schedule 2), one of them will be known as the relevant authority for the area. If the local authorities cannot agree which of them should be the relevant authority, the Lord Chancellor will decide on their behalf, consulting the Secretary of State for Communities and Local Government in respect of local authorities in England, and Welsh Ministers in respect of local authorities in Wales.
214. The Lord Chancellor may alter, by order subject to the negative resolution procedure, and change the names of, coroner areas using a similar consultation procedure.
215. The Schedule also makes provision in paragraph 4 in relation to bodies which are situated outside the senior coroners area. Once a senior coroner is responsible for conducting an investigation into a death, the fact that the body is outside that coroners area does not change his or her functions in relation to the death. The paragraph clarifies that the presence of the body in senior coroners area also does not give the second senior coroner any functions in relation to the death. This is broadly equivalent to the provision in section 22(3) of the 1988 Act.
216. This clause gives effect to Schedule 3 which sets out the procedure for the appointment of coroners, qualifications required and terms of office. It also makes provision for the exercise of a senior coroners functions by area and assistant coroners.
217. The Bill will change the titles of the office of coroner. The hierarchy under the 1988 Act consists (in descending order) of coroners, deputy coroners and assistant deputy coroners. Under the Bill, there will be senior coroners, area coroners and assistant coroners.
218. Under the 1988 Act, the relevant local authority appoints coroners (but not deputy and assistant coroners). The Secretary of State must approve certain coroners appointments; and where the coroners district consists of two or more such areas, or two or more Welsh principal areas, the relevant local authority must consult the others before making an appointment. The coroner currently appoints his or her own deputy and any assistant deputy coroners (section 6 of the 1988 Act). This will not continue under the Bill.
219. Under Part 1 of Schedule 3 appointments of all coroners are to be made by the relevant authority for each coroner area. There is a new requirement for the Lord Chancellor and Chief Coroner to consent to the appointment of all senior coroners.
220. Following consultation with the Chief Coroner and the relevant local authorities, the Lord Chancellor can determine whether the coroner area requires one or more area coroners in addition to the senior coroner, and if so how many. He or she can also determine the minimum number of assistant coroners.
221. All coroners must be legally qualified. Under the 1988 Act (section 2(1)(b)), being a legally qualified medical practitioner of five years standing also suffices. Transitional arrangements are made so that this provision does not apply in relation to those coroners treated as appointed under the transitional arrangements made in the Bill.
222. This part also disqualifies local councillors from appointment as coroners, if they work as an elected representative within the coroner area.
223. Part 3 of Schedule 3 makes provision for filling vacancies on the resignation, dismissal or retirement of coroners, and the arrangements for filling posts on a temporary basis. This Part also sets out the functions of area coroners and assistant coroners.
224. Part 4 of Schedule 3 introduces a new retirement age of 70 for coroners and sets out the procedure for resignation from office. A coroner is no longer to be regarded as having a freehold office.
225. It also gives the Lord Chancellor the power to remove a senior coroner, area coroner or assistant coroner from office if that coroner is incapable of performing his or her functions or is guilty of misbehaviour. Before he or she can exercise this power, the Lord Chancellor must have the agreement of the Lord Chief Justice.
226. Part 4 also provides for senior coroners, area coroners and assistant coroners to be disciplined in line with Chapter 3 of Part 4 of the Constitutional Reform Act 2005 (which includes the power for the Lord Chief Justice to issue reprimands).
227. It makes provision for the relevant authority for the area to pay salaries to senior coroners and area coroners and fees to assistant coroners. The amount of these salaries and fees is for the relevant coroner and the relevant authority to agree. If they fail to reach an agreement the matter can be referred to the Lord Chancellor.
228. This Part also requires the relevant authority for an area to make provision for pensions for senior and area coroners.
229. Additional terms of office can be agreed between the appropriate authority and the coroner.
230. This clause requires the relevant authority for a coroner area to provide sufficient administrative staff and coroners officers. When, locally, the police authority is responsible for providing coroners officers, then they will be expected to continue to do so. The local authority and local police authority will be expected to work together, with the senior coroner, to secure appropriate staffing levels. (Police authorities currently provide 90% of coroners officers to support the work of coroners.)
231. The relevant authority is also obliged to provide, or secure the provision of, accommodation to enable senior coroners to carry out their functions. This accommodation must either be maintained by the relevant authority or they must secure that it is maintained. This does not apply if another person has responsibility for maintaining the accommodation. This recognises that, at present, not all coroners have a dedicated court to hold inquests and that there will continue to be a need to hire such facilities in the future, including court accommodation where the existing court room is insufficient for the purposes of a particular inquest. Under section 31 of the 1988 Act, the relevant council has power to provide accommodation for either investigations or inquests.
232. The relevant authority is required to take into account the views of the senior coroner when providing and, where relevant, maintaining accommodation. The Bill allows inquests to be held anywhere in England and Wales so that there is new flexibility if particular inquests have requirements for the sort of accommodation which is not available within the coroners own area. The expectation will be, however, that an inquest is normally held within the area of the coroner who is conducting the investigation.
233. This clause brings Schedule 4 into effect, which sets out the powers of a senior coroner.
234. Paragraph 1 of Schedule 4 gives the senior coroner statutory powers to summon witnesses and to compel the production of evidence for the purposes of an investigation
235. Under paragraph 1(1) a senior coroner may issue a notice requiring a person to attend at a given time and place to give evidence at an inquest or to produce any documents they have that are relevant to the inquest or to produce anything else they have that is relevant to the inquest so that it can be inspected, examined or tested.
236. Paragraph 1(2) provides that the senior coroner can also notify someone that they must provide the senior coroner with a written statement, or produce any documents or anything else they have that the senior coroner considers is relevant to the investigation.
237. Paragraph 1(3) sets out information which must be included in any notice that the senior coroner issues under paragraphs 1(1) or 1(2).
238. Paragraph 1(4) gives those to whom the senior coroner has issued a notice under paragraph 1(1) or (2) the right to make a claim to the senior coroner either that he or she is unable to comply with the notice or that it is not reasonable for the senior coroner to ask him or her to do so. The senior coroner can cancel or amend the notice if he or she thinks the claim is valid.
239. Under paragraph 1(5), when deciding whether to cancel or amend the notice, the senior coroner has to take into account the public interest of that information being available to his or her investigation or inquest.
240. Under paragraph 1(6), a document or thing is defined as being under a persons control if it is in that persons possession or if they have a right to possession of it.
241. By paragraph 1(7), the notice is not limited by the coroners area and can therefore be issued to a person anywhere in England and Wales.
242. Paragraph 2 of Schedule 4 makes it clear that the senior coroner does not have the power to require anything to be provided to him or her that a person could not be required to provide to a civil court, mirroring the restriction on many information gathering powers contained in existing legislation. The senior coroner also does not have the power to require evidence to be provided if this would be incompatible with European Community Law. It is also made clear that the rules of law in relation to public interest immunity apply equally in relation to investigations or inquests under Part 1 of the Bill.
243. Paragraph 3 of Schedule 4 gives senior coroners a new, statutory power to enter and search land and seize items which are relevant to their investigations.
244. By paragraph 3(1), a senior coroner has a power to enter and search particular land if he or she has permission in writing from the Chief Coroner or from a senior coroner nominated by the Chief Coroner to give such permission.
245. By paragraph 3(2), the Chief Coroner, or a senior coroner to whom the power is delegated, may allow a coroner to enter and search premises only if that coroner reasonably suspects that there might be something on the premises relevant to the investigation. The coroner must also be unable to contact the person from whom they could get permission to enter and search the premises, have already had permission refused, have reason to believe that if they asked for permission it would be refused, or that the benefit of the search would be lost or significantly reduced if it cannot be done immediately (subsection (3)).
246. Under paragraph 3(4) a senior coroner has a power to seize anything on the premises, or inspect or take copies of any documents that are relevant to the investigation.
247. The power to seize items, inspect and take copies of documents under paragraph 3 can only be used if the person using it has reason to believe that this power might assist the investigation and if they have reason to believe that seizure is necessary to prevent the items from being hidden, lost, damaged, changed or destroyed.
248. The power in paragraph 3 to inspect and take copies of documents includes power to require information stored in electronic form to be provided in a form which can be taken away and which enables them to be read or easily changed into a readable format. This would include for example printing copies of electronic documents or downloading copies of files from a computer so that they can be printed at a later date.
249. Paragraph 4(3) of Schedule 4 makes clear that the person exercising the power under paragraph 3 may not seize items which they believe to be subject to legal privilege.
250. Items seized or taken away under paragraph 3 may be kept for as long as they are needed, and reasonable force may be used in the exercising of any power.
251. Paragraph 5 of Schedule 4 sets out the powers of a senior coroner to order exhumation of a body. This paragraph, to a great extent, replicates section 23 of the 1988 Act.
252. Paragraph 5(2) enables a senior coroner to order the exhumation of the body of a person buried in England and Wales if the senior coroner thinks it is necessary for a post-mortem examination to be made of the body. Although a senior coroner may order the exhumation of a body buried anywhere in England and Wales, it is likely that a senior coroner will only order the exhumation of a body if it is within that coroners area. This is because the senior coroner will only have jurisdiction to investigate the death if the body is within his or her area. The exception to this will be if another senior coroner has been asked to conduct an investigation under clause 2 or if the Chief Coroner has directed another senior coroner to conduct an investigation under clause 3 or if a fresh investigation is ordered after an appeal. In such cases, a coroner will have power to order the exhumation of a body even if it is not within his or her area.
253. Paragraph 5(3) enables a senior coroner to order exhumation of a body buried within his or her coroner area if the senior coroner thinks it necessary for the body to be examined for the purpose of any criminal proceedings or possible criminal proceedings in respect of the death of that person or another person who died in circumstances connected to that persons death.
254. Paragraph 6 of Schedule 4 gives the senior coroner the power, at the end of an inquest, to make a report to authorities or organisations with a view to preventing deaths in the future. This power could, for example, be used by the senior coroner to report to a local authority the fact that several deaths have occurred in similar circumstances on the same stretch of road. The person or organisation to whom the report was made must respond to that report. Further provision may be made in rules enabling reports and responses to be published.
255. This clause gives effect to Schedule 5 which sets out offences relating to jurors, witnesses and evidence, and the penalties for these offences.
256. Offences relating to jurors include service on a jury by those who know they are disqualified from such service, failure to attend a coroners jury and making false representations to avoid jury service. These offences reflect those jury-related offences in section 9 of the 1988 Act.
257. The offences relating to witnesses include failure to comply with a notice under paragraph 1 of Schedule 4, altering evidence, preventing evidence from being given, destroying or concealing documents, and giving false evidence. These offences are new, as the senior coroner is being given the power to compel evidence in these provisions.
258. The Bill does not remove or alter the powers of a senior coroner under the common law to summon witnesses, require evidence to be given and punish for contempt of court.
259. This clause gives effect to Schedule 6 which gives the Lord Chancellor regulation-making powers regarding fees and allowances that the senior coroner can pay (or are paid on his or her behalf, for example by the local authority) to jurors and witnesses to cover costs incurred due to their attendance at an inquest or pre-inquest hearing. This Schedule also provides for other payments to be made by senior coroners to practitioners who conduct post-mortem examinations. It allows senior coroners to charge for supplying copies of documents. An appropriate authority can issue a schedule of the fees, allowances and other payments that senior coroners can make.
260. Section 27 of the 1988 Act requires senior coroners to produce accounts to the council of their appointing local authority, and makes provision as to the funds from which reimbursements should be paid. Section 27A requires the council to indemnify the senior coroner for expenses reasonably incurred in connection with his or her functions, or in relation to disputing a claim made against him or her. Provision about such matters will now be contained in secondary legislation.
261. The Bill creates the offices of Chief Coroner and Deputy Chief Coroners, who will be responsible for hearing appeals against decisions of coroners, for establishing and overseeing national performance standards, and for providing leadership to the service in general. They may also conduct investigations The Government intends to have one full time Chief Coroner and one full time Deputy Chief Coroner, and to appoint others as Deputy Chief Coroners to assist, if required, in particular to hear appeals.
262. Subsections (1) and (2) give the Lord Chief Justice power to appoint the Chief Coroner and Deputy Chief Coroners after consultation with the Lord Chancellor. Persons will be appointed to these offices for a fixed term to be determined by the Lord Chief Justice after consulting the Lord Chancellor.
263. Clause 27 also gives effect to Schedule 7, which sets out the qualifications for appointment as Chief and Deputy Chief Coroner and the terms of office, and specifies further functions.
264. Under paragraph 1 of Schedule 7, a person has to be a Circuit or High Court judge in order to be eligible for appointment as Chief Coroner or Deputy Chief Coroner. There is a retirement age of 70 for both offices. This Schedule also sets out the arrangements for vacation of the office, resignation, removal from office and remuneration. It provides when the Deputy Chief Coroner may perform the functions of the Chief Coroner, and allows the Lord Chancellor to appoint staff to assist the Chief and Deputy Chief Coroners.
265. This clause states that the Chief Coroner may make regulations about the training of all levels of coroners, coroners officers and other staff who support coroners. This is designed to ensure that all those working within the service are aware of and apply best practice, relevant guidelines and standards issued under clause 32 (for example) and other developments in legislation.
266. This clause sets out that Her Majestys Inspectorate of Courts Administration will carry out inspections of the coroner system, and report their findings to the Lord Chancellor. The functions of the Chief Coroner and Deputy Chief Coroners will not be inspected in relation to any functions they carry out as Chief Coroner or Deputy Chief Coroner, nor will judges acting as senior coroners under Schedule 8.
267. Under subsection (2), inspectors are expressly prevented from commenting on any judicial decisions taken by a coroner. This would include decisions taken about whether or not to order a post mortem or matters relating to the scope or conduct of inquests.
268. Under subsection (3), the Chief Inspector must report to the Lord Chancellor on the coroner system. There is also provision (in section 60(5) of the Courts Act 2003) enabling an inspector to carry out the Chief Inspectors functions in the event that he or she is unable to do so.
269. Under subsection (4), the clause provides for inspectors to enter coroners premises and to take copies of any relevant records. Although they will be entitled to be present at inquests, under subsection (5) they will not be able to attend proceedings held in private, such as jury meetings.
270. Where a report under subsection (1) or (3) recommends that action be taken by a senior coroner, there is power in subsection (8) for the Lord Chancellor to direct the senior coroner to do so within a specified period.
271. This clause provides a right of appeal to the Chief Coroner against decisions that fall within subsection (2). This right is only open to interested persons (as defined in clause 37) although subsection (4) enables a person who the senior coroner decides is not classed as an interested person to appeal that specific decision. If such an appeal is upheld by the Chief Coroner, then that person would also be entitled to appeal against the decisions in subsection (2).
272. Subsection (2) sets out the decisions that can be appealed. Appeals can be made against a decision to conduct or not conduct an investigation, a decision to discontinue an investigation and a decision to resume or not resume an investigation, for example, once criminal proceedings or an inquiry under the Inquiries Act 2005 have concluded. It will be possible to appeal a coroners decision not to request a post-mortem. A coroners decision that a post-mortem is needed will not be subject to appeal however, except where a post-mortem of the same type has already been carried out. It will be possible to appeal against a decision as to whether an inquest is held with a jury.
273. A coroners determination as to who the deceased was, and how, when and where the deceased came by his or her death (and, where relevant, the circumstances of the death) can also be appealed, as can his or her finding of details required for registration of the death.
274. Subsection (5) enables the Lord Chancellor to change the list of decisions in subsection (2) by making an order.
275. Rules under clause 34 will set out the procedure for appeals to be made to the Chief Coroner.
276. This route of appeal is new. Under the current law, there is no appeal as such against a coroners decisions. Applications can be made to the High Court under section 13 of the 1988 Act if a coroner refuses to hold an inquest or where a fresh inquest is required. The High Court can compel a senior coroner to hold an inquest or quash the determination of a previous inquest and order a fresh inquest. Persons with sufficient interest can also apply for judicial review of a senior coroners decision. However, there is no simple appeal route at present for bereaved people and other interested persons. This clause provides a route of appeal to the Chief Coroner. It also replaces the existing statutory procedure of application to the High Court with the Chief Coroner having powers to compel a coroner to hold an inquest, or to quash a verdict from a previous inquest (from the same coroner or a different coroner).
277. Subsection (6) allows the Chief Coroner to consider any evidence which he or she thinks is relevant to the decision, determination or finding against which an appeal has been brought. This can include considering evidence which relates to issues that arose after the decision, determination or finding was made.
278. If the Chief Coroner allows an appeal except where the appeal is against a determination, he or she can substitute his or her own decision or quash the decision and refer it back to the senior coroner for a fresh decision. If the appeal is against a determination, the Chief Coroner can amend the determination or finding, or quash it and order a fresh investigation. If the appeal is against a failure to make a decision - for example, to conduct an investigation - the Chief Coroner can make the decision that could have been made or, again, refer the matter back to the senior coroner for him or her to make a decision. The Chief Coroner may also make any order he or she sees fit, including in relation to costs, although he or she has no authority in relation to the award of legal aid.
279. A decision of the Chief Coroner or a Deputy Chief Coroner may be appealed to the Court of Appeal, on a point of law only. The Court of Appeal can either confirm the decision made by the Chief Coroner, substitute its own decision in line with what the Chief Coroner had power to decide if he or she had judged the case differently, or overrule the decision and ask the Chief Coroner to reconsider the matter. Different appeal arrangements apply when the coroner is a High Court or Circuit Judge, in which case when the appeal is directed to a judge of the Court of Appeal or a High Court judge, respectively.
|© Parliamentary copyright 2009
|Prepared: 15 January 2009