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Memorandum by Mr
André Rebello HM (CJ 07)
CONTENTS Executive Summary 1-2: About
The Coroners' Society of 3-4: Historical Context 5-7: The Society welcomes the Coroners and Justice Bill 8-9: Resourcing the Services 10-12: Reforms Evolving 13-24: The Chief Coroner and Deputy Chief Coroner 25: Appeals 26-27: Matters to be ascertained at an inquest 28-31: Whether a Jury is required 32-33: Transfer of jurisdiction 34-35: Clause 11 - certified investigations: investigation by judge, inquest without jury 36-39: Anonymity in investigation provisions - Part 2 Ch 1 40-42: Deaths Abroad 43-46: Medical Examiners 47: Treasure 48-51: The Charter for bereaved families 52-53: Conclusion and acknowledgement Appendix 1: Areas of the current coroners' law that the Society have advised require change. EXECUTIVE SUMMARY · The
Coroners' Society broadly welcomes the introduction of the Coroners &
Justice Bill 2009 which has the potential to provide a solid foundation upon
which a modern · However, a good deal of the practical way that the reformed coroner system will work (or not) will depend upon the various rules of procedure and we await progress on these in coming months. · The new service will remain to be resourced, funded and administered locally although it will have national direction given by the new Chief Coroner. The standard of service will continue to be subject to variations as circumstances and local capabilities, resources and funding permit. We have concerns about the ability of the Chief Coroner to influence this. · Under the provisions of the Bill, there is no ability for the Chief Coroner to make use of particularly experienced coroners to clear any backlog of appeals which in many cases will be very urgent. Coroners sit in an inquisitorial jurisdiction and very few members of the judiciary have used similar rules and procedures in their judicial development. · Sufficient resources must be allocated to cover the significant additional time that coroners and their staff will spend on cases subject to appeal. · We fear that the very specific wording used in clause 11 will prevent a relatively new area of law developing by means of caselaw. · The inclusion of deaths in mental health detention as requiring a jury will have significant resource and practical implications. · We also feel that the transfer of cases envisaged in clause 3 will not be straightforward. · So far as the certified investigation, the appointment of judges and inquests without juries the Society has made comment to assist debate but as this is an area of political contention these are matters for the Executive. · The anonymity in investigation provisions have not been raised with Coroners. In the case of a homicide, should the criminal process be discontinued, Coroners will need all the evidence to discharge the duty to investigate and hold an inquest. · The Society hopes that Parliament might reconsider the necessity for all unnatural deaths abroad to be subject to inquest. · The implementation of a medical examiner scheme is welcomed, subject to cautions about perceived independence and a possible effect upon coroner's resources. · The proposed Charter for Bereaved Families is likely to raise expectations that will require funding, resources and facilities. About The Coroners' Society of 1. The Society represents all coronial judicial office holders. It is inappropriate for the judiciary to comment on the policy of the Executive and coroners will, of course, fully respect the will of Parliament. The comments we make are about the practical implementation of policy only. 2. The Coroners' Society of England and a) the promotion of the usefulness of the office
of coroner to the public; Historical Context 3. In spite of reviews of the 4. The current law is increasingly out of date. Modern society is very different from Victorian times; all areas of society have evolved and certain aspects of Coroners' legislation have needed updating (See Appendix 1). Society welcomes the Coroners and Justice Bill 5. On
behalf of the Society and its members, I broadly welcome the introduction of
the Coroners & Justice Bill 2009 which has the potential to provide a solid
foundation upon which a modern 6. A good deal of the practical way that the coroner system will work will depend upon the various rules of procedure that have yet to be drafted. At this stage, no attempt is made to deliver a critique on the whole Bill save on the general provisions relating to the Coroner Service. 7. The Society remains ready to assist Parliament in the onward passage of the Bill as and when any assistance or observations are sought.
Resourcing the Service 8. Against this background it is perhaps not surprising that while there are some coroners' services that are appropriately resourced, there are also those without adequate accommodation, support and investigative staff or even a court. Notwithstanding this, a survey of service users[i] conducted by the DCA (reporting in September 2006) advised that there was a satisfaction rating of 77%. This is a benchmark of the dedication of coroners, their officers and support staff. Further we understand from officials in the MOJ that compared to other public service providers there would appear to be relatively few complaints about coroners. 9. The new service will remain to be resourced, funded and administered locally although it will have national direction given by the new Chief Coroner. It is not clear how the Chief Coroner will have any power to influence local authorities in their provision of resources to coroners. Inevitably this will mean that the standard of service that is delivered will also be subject to variations as circumstances and local capabilities, resources and funding permit.
Reforms Evolving 10. The latest Government plans for coroner
reform have not followed the comprehensive considerations of the a. the Fundamental Review of the b. the Inquiry into the activity of Harold Shipman by Dame Janet Smith (July 2003). 11. The Home
Office Home Office broadly embraced the recommendations of these reviews
and issued a position paper, which in the view of the 12. Regrettably, this led to a substantial change in policy and it became clear that any reform was to be without significant additional resource. The prospect of a well planned national service was lost. It might be argued that the changes proposed in the Coroners and Justice Bill 2009 are largely cosmetic, but needed nonetheless. The Chief Coroner & Deputy Chief Coroner 13. The Chief 14. It is good that the Chief Coroner must be a judge of at least High Court Judge Status (as is the case in the recently reformed Northern Ireland Coroner Service). We do not think that a circuit judge should occupy this role. If a circuit judge were suitable for the role, s/he should be made a high court judge. This first point is a minor issue but one, which we believe, should be considered. 15. The Society notes with concern the proposal that only a High Court or Circuit Judge could be appointed as Deputy Chief Coroner. We consider this unfair and discriminatory, creating a glass ceiling for Coroners. This is at odds with all other government policy on the judiciary where judges have a career path whereby in theory one can move from a Tribunal judge of first instance to be the Lord Chief Justice. It would be most unfortunate that no-one can progress from senior coroner to even sit part-time as a deputy chief coroner without first giving up being a coroner and being appointed by the Judicial Appointments Commission to a different jurisdiction. This latter point is far more serious in our view. 16. However, we also consider that there is a very real practical reason why the Chief Coroner should be able to appoint experienced coroners as a Deputy to hear appeals. Appeals will have to be considered exceptionally quickly, especially in respect of the first six matters for which appeals can be made (set out in clause 30). 17. We suspect that there will be more appellate work than a team of the Chief Coroner and a couple Deputies can manage, at least sufficiently quickly. Under the provisions of the Bill, there is no ability for the Chief Coroner to make use of the vast amount of Coronial expertise to clear urgent appeals. 18. There are several hundred coronial office holders (just over a hundred coroners plus deputies) and a number are sufficiently experienced and competent to be able to take on some second tier appellate function 19. As the Lord Chief Justice decides the term for appointment, we see no reason why a deputy chief coroner could not be appointed on a sessional basis (similar to a deputy high court judge who remains a practising barrister). 20. Coroners sit in an inquisitorial jurisdiction and very few members of the judiciary have used similar rules and procedures in their judicial development. Apart from designated care judges, the inquisitorial jurisdiction is wholly alien to the daily work of the Circuit Judge. On that basis we respectfully think it inappropriate that any backlog of appellate work is simply handed on to judges at circuit level. 21. If a senior coroner were permitted to apply for and/or be appointed to act in the post of Deputy Chief Coroner it may well be at some stage that they were an appropriate person to become a future Chief Coroner. 22. Presumably if a future deputy chief coroner who was a coroner, was ideally suited to succeed the chief coroner s/he could always be made a High Court Judge for these purposes. 23. As a way of keeping all options open but without changing current policy would the Government consider the suggested amendment to schedule 7 set out in the footnote to this paragraph[ii]? 24. An alternative suggestion is that while there may be a single Deputy Chief Coroner, of similar status to the Chief Coroner, there could well be a number of Assistant Chief Coroners appointed, drawn from amongst others, the general pool of experienced serving coroners. In this way the office of Chief Coroner, acting through the Chief Coroner, the Deputy Chief Coroner or Assistant Chief Coroners will be able to have at its disposal substantial experienced coroners capable of addressing the practical issues upon which coroners' decision so often turn. Appeals 25. Whilst the Society welcomes the introduction of an appeal system, we are concerned that proper provision is made for the significant additional time that coroners and their staff will spend preparing papers (often very urgently) for the Chief Coroner of his deputies to consider. Matters to be ascertained at an inquest (Clause 5) 26. These are currently set out in both sections 11(5) and 11(6) Coroners Act 1988 and rule 36 Coroners Rules 1984. The bill moves this to primary legislation which though giving more prominence to the findings and determinations has the disadvantage that as the Common Law develops these matters can only be changed by a new statute. Section 11(5) Coroners Act 1988 sets out that these findings should be recorded on the inquisition. The matters to be ascertained are who the deceased was, how when and where the deceased came by his death and the particulars required to register his death. "How" ordinarily means by what means[iii]. However, the House of Lords decision in the case of Middleton states that where necessary in order to avoid a breach of any Convention rights (within the meaning of the Human Rights Act 1998, usually involving an alleged breach of article 2 - the right to life), "how" means by what means and in what circumstances[iv]. 27. The Society suggests that clause 5(2)
of the Coroner and Justice Bill 2009 is unnecessary as case law requires
different interpretations of "how" in different circumstances. Further, should the House of Lords or the Whether a Jury should be required - Clause 7 28. The Society understands the policy decision to require a jury for all state detention rather that just prison and police contact as is the case under the current law. The major practical effect of this will be to require a jury for a significant number of deaths in Mental Health Act detention. 29. This carries significant resource implications. Jury cases take much longer, attract more advocates, require conference rooms (that most coroners don't have), more witnesses and the jurors. Preparation for such cases is much longer. Only if local authorities are provided with the funding to provide resources for these new jury cases, including additional coroners, will this policy not have a detrimental effect on what are already overstretched local coroners' services. However, that may not be the end of the difficulties. 30. Currently only 2% of inquest are held with juries. For those coroners with prison jurisdictions these cases take up much of the resources and time. An inquest with a jury can only be held in a suitable court room with proper jury facilities. For many coroners these are not readily available. 31. We would also point out that jury inquests are incapable of being adjourned part heard if further lines of inquiry become apparent in the course of proceedings. [This is not so for non-jury inquests which may be (and frequently are) adjourned for additional or further inquiries to be pursued as evidence emerges in the inquisitorial process of an inquest.] Transfer of jurisdiction 32. Whilst we accept the reasoning behind the proposals in clause 3 which would allow the Chief Coroner to transfer cases between jurisdictions, we are concerned that the provisions may cause some difficulty. The local authority in coroner district A is unlikely to welcome a situation where the inquests affecting their own residents are delayed because the Chief Coroner has directed the transfer of a case from coroner district B. This will particularly be the case where coroner A has no backlog because s/he is well resourced whilst coroner B is suffering delays because of the opposite situation. 33. It is also open to question whether local authorities will consider that the transfer of funding to cover an inquest from another area will actually make up for the costs and difficulties encountered. Certified investigations: investigation by judge, inquest without jury -Clause 11 34. The
Society is uncomfortable about these plans, the Society does however recognize
that there is not always an easy answer, to extreme situations. That said, "Justice
must be seen to be done". It is set out
elsewhere in this note the ingredients for an investigation which complies with
the obligation to investigate following an alleged breach of Convention rights.
I
can see no problem with 35. These matters are not always crystal clear; there will be degrees of confidentiality that appertain depending on the circumstances. It maybe the case that the information being given to the coroner as part of the investigation is all that is needed. Or that if a jury is required; the case should proceed in the absence of the jury. The information may need to be used in evidence in a court cleared of the media and the public, or all properly interested persons other than the next-of-kin or even to a court with a special advocate as the only other person present. What is important is that the probative value of the evidence is judged against the perceived prejudicial detriment to the public interest. This is a judicial function. Anonymity in investigation provisions - Part 2 Ch 1 36. We are not clear how these provisions are meant to impact on an inquest held where no criminal charges are eventually brought. 37. In cases of murder or manslaughter by firearm or knife s.61 provides that a JP can make an "investigation anonymity order" (IAO) in relation to a specified person prohibiting disclosure of information that might identify that person. There are several conditions for making such an order, in particular that the person is between 11 and 30 years old and is a member of a criminal gang.[vi] 38. A person employed in public administration is a person "designated for the purposes of this section by the Secretary of State by order" (s61 (12) 39. Are Coroners to be so designated? If not, does the coroner have somewhere to apply for an order? The Coroner needs to know the identity in order to call the person to give evidence in the case of an inquest (although anonymity should be preserved). Deaths Abroad 40. The Luce report
(2003) recommended that there should be discretion for a coroner to hold an
inquest when a body was returned to 41. There is no doubt
that returning a body to 42. Indeed, on occasion there may be little or no cooperation from the family repatriating their loved one whose sole interest may be limited to the burial or cremation. It is therefore unfortunate that the opportunity is not taken to give coroner discretion in such circumstances. Medical Examiners 43. The appointment of Medical Examiners is welcomed by the Society and may well go a long way to address individual concerns of doctors in cases which at present are wrongly forwarded to coroners' offices for resolution. 44. Coroners are pleased to be closely involved in the Dept of Health plans for a medical examiner scheme. At this stage we only have two observations to make. 45. If the examiners are appointed by Primary Care
Trusts (in 46. It is possible that the existence of medical examiners may have resource implications for coroners if more cases that require an inquest are brought to coroners' attention than is currently the case. This comment is based upon very early trends from a limited pilot currently in operation but it will need careful consideration as more data becomes available. Treasure 47. The retention of jurisdiction over treasure and treasure trove will be welcomed by some coroners but will be regretted by others. That there are no plans for a Treasure Coroner should be an opportunity for those who value this part of our work to develop their specialism. This should enable cases to be moved to those areas leaving other coroners to concentrate on the main part of our jurisdiction. The Charter for bereaved families 48. The Society has always been of the view that this should be "the Coroners' Charter" as it should reflect the standard and manner of service provided to all with whom we encounter in carrying out the duties of our office. That said it is encouraging that this is an illustrative charter and that similar charters will be available for others. The difficulty with the Charter is that it will raise expectations without the provision by Government to Local authorities of funding, resources and facilities to deliver. 49. Some local authorities have provided suitable accommodation and facilities for their Coroner's service. Others have not. It is not that other essential services such as those to children, the elderly or marginalised can be cut to free up funding for the promised new coroner's service. 50. How does the Chief Coroner or HM Inspectorate of Courts influence the budget allocation within a local authority? Does the Chief Coroner have any more "clout" that the Justice Secretary or the Home Secretary before? How would the Chief Coroner be able to enforce clause 23 without seeking judicial review? If local authorities do not provide such facilities now, is this not then a new burden? 51. The Society recognises that, given the lack of Treasury investment, the real reform will be non-legislative, the most important part of which will be persuading local authorities to invest in the coronial service infrastructure. Not far behind this would come the development of the role of the Coroner's Officer as a recognised career, with a national training qualification with ongoing professional development. Conclusion and acknowledgement 52. The Bill is broadly welcomed, subject to the reservations above. The Society would wish to be closely involved in the drafting of rules and regulations with officials and with the Chief Coroner when appointed. Since 1846 the Society has advised government and has kept coroners informed of issues, legislation and case law which affect the Office of Coroner. The Society is run by working coroners for working coroners. The Society has no government funding and does not employ any staff. Given the duties which will devolve of the Chief Coroner it is important that the Society has a very close and good working relationship with him/her. The Society will continue to carry out it objectives within the reformed service and, as it has for many decades, will make whatever law we are given work. 53. The Society is grateful to the Committee for affording this opportunity to advise on these matters.
André Rebello - Hon Secretary 3rd February 2009
Appendix 1
Some
of the matters concerning the present law that have been raised by the a. Enabling
post mortems examination to be carried by the appropriate expert in proper
facilities beyond the boundaries of a jurisdiction or neighbouring
jurisdiction. S 22 b. Permitting
the transfer of a body to a more appropriate jurisdiction to hold an inquest
even though the body has been released for funeral. Section 14(1) c. The
law relating to adjourning inquests when the coroner has been informed that a
person has been charged before a Magistrates Court with a criminal offence amounting to unlawful
killing is contained in s 16 d. In
some jurisdictions a final inquest hearing [i]
DCA commissioned IPSOS MORI Survey DCA Research 6/06 "Users Experiences of [ii] SCHEDULE 7
CHIEF CORONER AND DEPUTY CHIEF CORONERS
Qualifications and term of office
1(1)
To be eligible for appointment as the Chief Coroner (a) a judge of the High Court (b) under the age of 70. (2) To be eligible for appointment as a Deputy Chief Coroner a person must be. (a) a judge of the High Court or a Circuit judge or has held office as Coroner for 10 years, and (b) under the age of 70. (3) The appointment of a person as the Chief Coroner or as a Deputy Chief Coroner is to be for a term decided by the Lord Chief Justice after consulting the Lord Chancellor. The term must be one that expires before the person's 70th birthday. (4) In this paragraph .appointment, includes re-appointment.
[iii] The deceased in R v Walthamstow Coroner, ex p Rubenstein (19 February 1982, unreported) suffered a subarachnoid haemorrhage which produced symptoms suggestive of drunkenness. He was arrested and was detained at a police station before being transferred to the hospital where he died. At the inquest the jury found that the death was due to natural causes aggravated by neglect. This was successfully challenged on the ground that nothing done or omitted after the haemorrhage affected or could have affected the outcome. Glidewell J said: 'Before this verdict can properly be given, there must be some evidence that the neglect, if any, caused the death. If that is not the case, I can see no point in this verdict. The jury is enjoined to inquire, amongst other things, to say in their verdict how the deceased came by his death. "How" means "by what means". It does not mean "in what circumstances". They are not concerned as to whether he died in the cleanest, the most distressing or the most appropriate of circumstances or surroundings. That is not part of their function. They are concerned with those matters which caused death or led to it in part.'
[iv]
R (Middleton) v H.M. Coroner for the Western District
of [v] Since 1995 the European Court has, through a number of its decisions, established that in addition to the substantive obligations, member states are also under a procedural obligation (sometimes referred to as an "adjectival" duty) to initiate an investigation into any death which "occurred in circumstances in which it appeared that one or other of the substantive obligations had been, or may have been, violated and it appeared that agents of the state were, or may have been, in some way implicated" When the right to life is investigated unless there are criminal proceedings the inquest is often one of the main means by which this duty is discharged. An alternative is by Public Inquiry provided: i. The investigation must be independent ii. The investigation must be effective iii. The investigation must be reasonably prompt iv. The investigation must be sufficiently open to public scrutiny v. The investigation must involve the next of kin
[vi] Disclosure is a criminal offence unless · the person making the disclosure doesn't know about the order · the person making the disclosure ("A") knows that person he is telling ("B") is aware that the subject of the order is assisting in the investigation. · A obtained the information because he was an investigator or prosecutor and has made the disclosure to another person involved in the investigation or "a person employed in public administration" and "the disclosure was made for the purposes of the investigation or the prosecution (s 61(7) · A is employed in public administration, the information was disclosed for a purpose connected with the investigation or prosecution, B was employed in public administration or investigation or prosecution, and disclosure was made for the purpose of the investigation or prosecution. · Disclosure was made in pursuance of a requirement imposed by law or in pursuance of an order of a court.
[vii]
s22.-(1) Subject to subsection (2)
below, where by the direction or at the request of a coroner, a post-mortem
examination of a body is to be made, the coroner may order the removal of the
body to any place which may be provided for the purpose either within his
district or within an adjoining district of another coroner. [CA] [viii]
s14.-(1) If it appears to a coroner
that, in the case of a body lying within his district, an inquest ought to be
held into the death but it is expedient that the inquest should be held by some
other coroner, he may request that coroner to assume jurisdiction to hold the
inquest; and if that coroner agrees he, and not the coroner within whose
district the body is lying, shall have jurisdiction to hold the inquest. [CA] [ix] s16.-(1) If on an inquest into a death the coroner before the conclusion of the inquest- (a) is informed by the clerk of a magistrates' court under section 17(1) below that some person has been charged before a magistrates' court with- (i) the murder, manslaughter or infanticide of the deceased; (ii) an offence under section 1 of the [1972 c. 20.] Road Traffic Act 1972 (reckless driving) committed by causing the death of the deceased; or (iii) an offence under section 2(1) of the [1961 c. 60.] Suicide Act 1961 consisting of aiding, abetting, counselling or procuring the suicide of the deceased; or (b) is informed by the Director of Public Prosecutions that some person has been charged before examining justices with an offence (whether or not involving the death of a person other than the deceased) alleged to have been committed in circumstances connected with the death of the deceased, not being an offence within paragraph (a) above, and is requested by the Director to adjourn the inquest, then, subject to subsection (2) below, the coroner shall, in the absence of reason to the contrary, adjourn the inquest until after the conclusion of the relevant criminal proceedings and, if a jury has been summoned, may, if he thinks fit, discharge them.[CA} [x]
s5.-(1) Subject to subsection (3)
and sections 7 and 13 to 15 below, an inquest into a death shall be held only
by the coroner within whose district the body lies. |