The Coroner Service Contents

3Putting bereaved people at the heart of the Coroner Service

The status of bereaved people

38.Bereaved people are referred to as “interested persons” by the Coroner Service. This is defined in section 47 of the Coroners and Justice Act 2009 (CJA 2009) and includes a spouse, civil partner, partner, parent, child, brother, sister, grandparent, grandchild, child of a brother or sister, stepfather, stepmother, half-brother or half-sister and a personal representative of the deceased. Organisations and other individuals may also have interested person status, such as government departments and hospital trusts.

39.Interested persons are not parties to the inquest as such. However, they have rights to be notified of certain matters including, for example, aspects of the post-mortem and information about the date, time, and place of the inquest. They also have rights to be involved in the inquest procedure, including, for example, by questioning witnesses and seeing written evidence.44

The importance of the Coroner’s approach to bereaved people

40.Evidence from the Coroners’ Society and individual coroners shows that many bereaved people are grateful for considerate treatment shown by coroners and their staff. The Coroners’ Society’s written evidence included extracts from the many letters and emails of thanks received by coroners.45

41.Other evidence shows, however, that some coroners find it challenging to keep bereaved people at the heart of the process. André Rebello, Honorary Secretary of the Coroners’ Society told us:

I am in a very privileged position as secretary of the Coroners’ Society: all inquiries and telephone calls from the public come through me. I know everything is not perfect. We try our best. Through feedback to the course directors who deliver coroners’ training, we give feedback to the Chief Coroner and try to moderate how coroners behave.46

42.Deborah Coles, Director at INQUEST identified an absence of consistent standards across the Coroner Service:

What I will say has been informed by both inquest work with bereaved people and the evidence in our submission that we took from 55 families. Some talked of excellent coroners and coroners’ officers and had very positive experiences of the process, but I am disappointed that far too many talked about being treated very badly by the process, with a lack of dignity, respect and empathy.47

43.We had evidence that there is good practice in well-funded, well-run areas. Unfortunately, this is not consistently the case. The Coroners Courts Support Service (CCSS) told us:

there are Coroners who will truly enable bereaved families to participate fully in the proceedings and, whilst maintaining their authority within the court, will address the families with empathy and an understanding of the impact the death may have had on them. However, some Coroners may make bereaved families feel unheard, frustrated and angry that the Coroner seems to be dismissing their concerns.48

44.We received written evidence from a number of bereaved people and from organisations who are in touch with many more. It would not be possible to repeat all their concerns about variations between areas in this report. An example came from a joint submission from four charities concerned with infant and childhood deaths:

The experience of families can differ greatly based on where they live […] We received excellent examples of Coroners who kept families informed, gave choices where possible and offered support and referrals. Families who have a negative experience tend to remember this for a long time and openly say that it impacts on their grief.49

45.We received submissions directly from bereaved people expressing great distress. Many, but not all, involved a child or close relative who was a vulnerable adult who had committed suicide or met with an accident while being accommodated by a public body or charity or being treated by the NHS in hospital or in the community. They recounted feelings that various coroners brushed aside concerns about the care loved ones had received in the period running up to their death. We also received evidence that a small minority of coroners can be brusque and unsympathetic.

46.Andrew McCulloch, a bereaved parent, gave written and oral evidence to this inquiry. This extract from his written evidence is an example of the Coroner Service at its worst:

[At the pre inquest review] The Coroner arrived late and brusquely stated that he wanted no shouting in the court. He looked at [my wife] Amanda and I aggressively and said only one of us would be allowed to speak and only for two minutes. No mention of sorrow for our bereavement or concern for how we might be feeling.50

47.Mr McCulloch told us: “It was like being slammed in the stomach. I can’t tell you the pain, the agony. I’m sorry.”51 After a Judicial Review (without Legal Aid) and two years, an inquest into his daughter’s death was held by a new coroner. Mr McCulloch told us of the contrast:

The next coroner was a man called Coroner Oldham. I can name him because he was a good guy. He came in and the first thing he said was, “I want to make the victim the centre of this inquest. I want to know who Colette was. I want to read about her. I want to understand her.52

User-friendly procedures

48.In many deaths, the people who have been bereaved will not be expecting that the Coroner Service will be involved. Many of these are where the death was due to natural causes, but no medical practitioner was in a position to certify that this is the case. As a result, such deaths are referred to the coroner.

49.For the great majority of bereaved people this will be the first time they have had any contact with the Coroner Service, and they are unlikely to know much about it. There are some key areas that are important to helping people when this happens. These include reducing delays so that a funeral may be held, and the body disposed of according to their wishes, and providing bereaved people with information so they understand fully what is going on while the Coroner Service is involved in the death of their loved one.

Reducing delays so a funeral can be held

50.A funeral cannot take place until the coroner releases the body. The time taken for a coroner to release a body for burial or cremation can depend on several factors, including time of death and whether this is outside usual office hours (for example, over a weekend or bank holiday). Sometimes, bereaved families request the coroner to treat a particular death as a matter of urgency. This might be, for example, because the family has a religious or cultural belief that the body should be buried on the day of death or as soon as possible thereafter. Jewish and Muslim families, or their representatives, sometimes make such requests.

51.In May 2018, the Chief Coroner issued new guidance on expedited decision making. This guidance states that coroners should pay appropriate respect to religious and cultural wishes about the treatment of a body and burial following a death. Any policy or practices adopted by coroners must be sufficiently flexible to allow them to give due consideration to expediting decisions where there is good reason to do so. They should seek to strike a fair balance between the interests of those with a well-founded request for expedition (including on religious grounds) and other families who may be affected.53

52.We received written evidence from several faith groups on variations between areas. For example, the Board of Deputies of British Jews told us that individual relationships with Coroners could be more important than systemic factors:

the Jewish community has excellent relations with the vast majority of Coroners, who accommodate the requirements of the Jewish community, especially in regard to early release of bodies and non-invasive autopsy. This is almost entirely due to the building up of individual relationships - there is very little systemic guarantee of such provision. Hence, when a Coroner does not wish to accommodate the needs of a local Jewish community, there appears to be little that can be done.54

53.The Chief Coroner’s guidance on when and how to expedite a case to meet with the requirements of the beliefs of the deceased is welcome, but whether the needs of faith communities will be met or not depends on how the Coroner Service responds locally. We encourage the new Chief Coroner to continue the work of his predecessor in liaising with stakeholders, including with faith representatives, so that any problems with expediting cases can be identified and addressed as they arise.

Written information

54.The Ministry of Justice has published A Guide to Coroner Services for Bereaved People (updated January 2020) to provide bereaved people with an explanation of the coroner investigation and inquest process and links to organisations that may provide help and advice.55 The Guide to Coroner Services sets out

specific standards of service that you can expect at particular stages of a coroner investigation are set out in ‘Standards you can expect’ boxes throughout this document.56

Alex Chalk told us this that the Guide was an important change:

Even since 2009, a lot of attitudes have changed and people recognise that bereaved people and people across the court system, including witnesses, need to be treated sensitively. In terms of what is changing, the single biggest thing that has changed is probably this document, “A Guide to Coroner Services for Bereaved People”, which I would commend to the Committee.57

55.The Chief Coroner, Judge Lucraft, told us about a gap in public understanding of the Coroner Service:

In terms of the public understanding, I do not quite know how one can best address that. We have tried in leaflets, which are now provided to people, to explain what the role of the coroner is and how they would carry out that function in a particular set of circumstances.58

56.Deborah Coles, of INQUEST, told us about the importance of providing information early:

Post-mortems [are] the critical point at which information could and should be given to families about what an inquest is and about the process, yet families still describe an information vacuum that is often filled by ourselves and other organisations. [ … ] I fully recognise the importance of the Coroners’ Court Support Service, but we know that is a patchy service. A lot of families simply do not receive information about what an inquest is.

[ … ] we are contacted routinely by families who are going through an inquest system. They go on to the internet and type in “INQUEST” and we pop up. As an illustration, we sent out 700 of our comprehensive information handbooks and had over 4,000 hits on our advice website. To me, that is indicative of a problem with communicating the purpose of an inquest and what families’ rights are.59

57.RoadPeace told us that bereaved people had reported to them that in one [coroners] court “the leaflets were so out of date they had gone brown”.60

58.The Ministry of Justice’s Guide to Coroner Services is good first step but more needs to be done to make sure that bereaved people know of its existence. We encourage all Senior Coroners to make sure that the updated Guide to the Coroner Service for Bereaved People is freely available both online and, where requested, in hard copy by post and is offered to people who have been bereaved as soon as it has been decided that a post-mortem is needed.

Support for bereaved people from other organisations

59.The Chief Coroner, Judge Lucraft, told us how important it is that bereaved people are supported in their interactions with the Coroner Service: “We are dealing with families at a very raw time for them. They are grieving and they find the process very difficult.”61

60.Lisa O’Dwyer, Legal Director at Action against Medical Accidents, told us about the challenges of helping bereaved people to understand the Coroner Service and the role of independent advice:

I think the Coroner Service does as good a job as it can. It is variable and it will depend on the coroner’s clerk and assistant and so on [ … ] We have to remember that these are, first of all, grieving people, but also people who do not necessarily have any legal background and have never been exposed to any legal process. It really just goes to the inevitable need for there to be better access to independent advice and information for those. Coroners’ clerks do it as best they can.62

61.Victoria Lebrec of RoadPeace agreed about the need for specialist support if there is going to be an inquest:

You have to bear in mind that these people are totally traumatised. They might not have gone to an inquest before or understand what the process will be. [ … ] It is really about ensuring that the Coroner Service is directing people to specialist support organisations that can explain things to them.63

Coroners’ Courts Support Service

62.The Coroners’ Courts Support Service is a charity whose trained volunteers offer emotional support and practical help to bereaved families, witnesses and others before, during and after an inquest. It operates in around half of coronial areas:

The charity strives to make the inquest process transparent and accessible, and we aim to meet the emotional and practical needs of all those attending. Owing to no financial support from central government, the support of our 400 volunteers is currently only available in half of the coronial areas.64

63.The Chief Coroner, Judge Lucraft, told us of the importance of the Coroners’ Courts Support Service:

I would urge that every coroner’s court be required to have the Coroners’ Courts Support Service to greet and meet families and make sure they are not by themselves and induct them into the processes expected in that court. They work regionally and understand how the coroner system works locally and they are an excellent charity that should be encouraged to roll out everywhere.65

64.Despite their vital function the Coroners’ Courts Support Service receives no central government funding:

We rely on contributions from local authorities which cover a fraction of the cost of the Service and from grant makers who also contribute towards the costs. Although we have been in talks with the Ministry of Justice since 2014 regarding funding for a national expansion, we are no further forward with this [ … ] Our financial situation is not sustainable and could result in bereaved families going unsupported in the future.66

65.The Ministry of Justice told us that the Government had accepted in 2017 that support services for bereaved people need to be improved but this has not yet happened:

Officials are working through a number of commercial and legal issues that have arisen on this. Taking forward a non-legal support service depends on identifying funding.67

66.Help and support for bereaved people depends on the priorities, capacity and skills of the local Coroner Service and local volunteers in the Coroners’ Courts Support Service. The Ministry of Justice should as a matter of urgency provide funding for support services for bereaved people at inquests, (such as those provided by the Coroners’ Courts Support Service), so that this support is available in every Coroner Area.

67.We encourage Senior Coroners to make sure that bereaved people are made aware by their staff of the specialist support organisations that are available to them both locally and nationally.

Rights for bereaved people

68.Apart from their statutory rights as interested persons (alongside public bodies, insurance companies and so on) bereaved people do not have rights to be treated with special consideration. This is unlike the Criminal Justice System where there is a statutory code on how victims should be treated.68 The Coroners’ Courts Support Service told us that the:

Guide to Coroner Services outlines what families can expect but as these are not mandatory standards it is difficult for families to know what their rights are as opposed to what they might expect.69

JUSTICE, in its report When Things go Wrong identified “a stark discrepancy between the rights afforded to victims in the criminal justice system and bereaved people and survivors in inquests and inquiries”.70

69.The Criminal Justice Systems’ Victims Code is not directly applicable to the Coroner Service, but the same principles could be applied. Victim Support’s National Homicide Service (based on research carried out in July and August 2020 with staff and caseworkers from the service) told us:

We welcome the updated ‘Guide to Coroner Services for Bereaved People’ published this year, but we feel it must go further. The Code of Practice for Victims of Crime (the Victims’ Code) [ … ] sets out the minimum level of service that victims should receive from the criminal justice system. Family members bereaved by homicide are entitled to services under the Code, however the coroners process is not currently covered by the Code and remains a gap.71

70.Bereaved people deserve a charter of rights setting out the standards of service they are entitled to receive from the Coroner Service. Setting out the standards they can ‘expect’ in the Guide to Coroner Services is inadequate. The Ministry of Justice should implement a statutory Charter of Rights for bereaved people, modelled on the criminal justice system’s victims’ code.

Disclosing evidence to bereaved people

71.As set out in Chapter 1 only a small proportion of deaths referred to coroners result in an inquest. In the great majority of cases coroners can answer the ‘who’, ‘what’, ‘where’ and ‘how’ questions about the death without hearing evidence in a courtroom. We have outlined in Chapter 3 some of the variations in the consideration given to bereaved people. We also received evidence of lack of consistency in how coroners manage inquests (including preliminary hearings known as pre-inquest reviews). These are centred on disclosure of evidence.

72.Part 3 of the Coroners (Inquests) Rules 2013 require the coroner to disclose copies of relevant documents to an interested person, on request, at any stage of the investigation process (subject to some exceptions).72 Most bereaved people are unaware of this rule, however, so do not understand that they need to request documents. Lisa O’Dwyer, Legal Director at Action against Medical Accidents (AvMA), told us:

If you do not have access to the basic documents that the coroner is relying on when you attend a pre-inquest review hearing, you cannot be prepared for that, whether you are represented or not. You need to have access to that information well in advance.73

Victoria Lebrec, Head of Policy, Campaigns and Communications at RoadPeace made a similar point:

Even though there is the pre-disclosure policy, which is a good thing, the majority of families do not know to ask for the evidence ahead of time and coroners vary in their compassion from that perspective. You cannot be prepared for an inquest without having that information before.74

73.Bereaved people are at a disadvantage when they do not have access to the evidence. It is important that the process for obtaining evidence is explained clearly to them as this is important for the fairness of the inquest. We encourage the new Chief Coroner to strengthen guidance and training on disclosure and pre-inquest reviews, emphasising to coroners that bereaved people should be told about their rights to documents early in the process.

Some inquests are adversarial

74.Coroners’ inquests are set up to inquire into the facts of a death. They are not trials and do not have the safeguards in place that other courts have when criminal or civil liability is being decided. They are not intended to be adversarial where each side argues against the other. We heard, however, that it can be difficult for coroners to maintain an inquisitorial approach, particularly for complex inquests that involve many people and organisations, some of whom may be seeking to limit their civil (or criminal) liability with the assistance of legal representation. This can leave bereaved people who do not have legal representation feeling lost and unsupported and that their questions are not being considered.

75.In relation to inquests into deaths in state custody Dame Elish Angiolini said in her 2017 report:

The reality is that Inquests into death in police custody are almost always adversarial in nature. This has been the unanimous opinion of coroners, lawyers and families who have given evidence to this review [ … ] The expectation that the Coroner can meet the family’s interests during the inquest is wholly naïve and unrealistic as well as unfair to families and to the Coroner.75

The Coroners’ Society also referred to an “inequality of arms”:

the State in one of its various guises (e.g. a hospital) may be represented but the family may not be. It is clear that when there are multiple advocates inquests can lose their inquisitorial nature.76

Institutional defensiveness and a lack of candour

76.Deborah Coles, Director of INQUEST told us of their experience of a culture of defensiveness by public bodies at Article 2 Inquests:

Very often, those lawyers are working as a team to try to reduce the scope of the inquest, to try to limit the number of witnesses or argue against questions being left to a jury, if indeed there is one, or argue against a coroner making a prevention of future death report. [ … ] There is much more concern for reputation management, rather than a meaningful search for the truth.”77

77.The Right Reverend Bishop James Jones KBE drew attention to this institutional defensiveness in his Hillsborough report:

The common thread to the experiences set out in this report is [ … ] ‘the patronising disposition of unaccountable power’ [ … ] One of its core features is an instinctive prioritisation of the reputation of an organisation over the citizen’s right to expect people to be held to account for their actions. This represents a barrier to real accountability.78

78.In its report “What happened when something goes wrong”, JUSTICE, said:

In both inquests and inquiries, lack of candour and institutional defensiveness on the part of State and corporate interested persons and core participants are invariably cited as a cause of further suffering [for bereaved people] and a barrier to accountability.79

Duty of Candour

79.The statutory duty of candour was introduced in November 2014 for NHS bodies in England. It was extended in April 2015 to cover all other care providers registered with the Care Quality Commission (CQC). It is a statutory duty to be open and honest with patients, or their families, when something goes wrong that appears to have caused or could lead to significant harm in the future. It applies to all health and social care organisations registered with the regulator, the (CQC) in England. Deputy Chief Coroner, Derek Winter, told us:

The duty of candour is a very helpful development. One of the things that coroners should be doing, in my view, is forming a working and meaningful relationship with the chief executives of the various health trusts and GP communities to get word out about what the coroner’s expectations are at an inquest. It is far better for people to come along and say, “We have fallen into error. Things could have been done better,” than for that admission to be, essentially, extracted out of them. It is better to put hands up, learn lessons and move forward.80

80.Lisa O’Dwyer from Action against Medical Accidents (AvMA), said the families of bereaved people were, once more, unaware of their rights here:

Under the statutory duty of candour, there is an ongoing obligation to update families as their investigations progress and to communicate those updates to them. There is an obligation under the statutory duty of candour for what has gone wrong to be written [ … ] I can say without any hesitation that the families who come to us invariably have not heard of the duty of candour, or, if they have heard of it, they certainly have not had a duty of candour letter, and they certainly do not get updates. There seems to be a general feeling that once an inquest is called or a similar process, whether it is civil litigation or anything like that, the duty to update families about the progress of internal investigations ceases.81

81.The failure of health and social care bodies to fulfil their duty of candour to bereaved people during coroners’ investigations and inquests is disappointing. The Ministry of Justice should amend the Coroners’ rules to make it patently clear that the duty of candour extends to the Coroner Service. The Government should consider whether a similar duty to be candid at inquests should be extended to all public bodies.

Legal aid for representation at inquests

82.Provision of publicly funded legal services to bereaved families at inquests is limited. The costs of legal advice and preparation in the run-up to an inquest can be met by legal aid. However, the costs of representation at the inquest itself will be met only in cases deemed exceptional. Applicants for exceptional case funding must also satisfy financial eligibility rules for legal aid. Applicants may still be required to augment a grant of legal aid by making contributions to the costs of funding their representation. There is, however, a discretion to waive both the means-testing and requirement to make financial contributions.82

83.The ‘exceptional funding’ criteria are:

84.Lisa O’Dwyer, Legal Director at AvMA, told us that in her experience: “Exceptional [legal aid] funding is exceptional in name and, quite frankly, exceptional in nature as well. People generally do not access it at all.”84

85.The first Chief Coroner, Sir Peter Thornton QC, in his 2015–2016 annual report, set out how many other interested persons may have publicly funded legal representation while the people who have been bereaved do not:

the police, the prison service and ambulance service, may be separately represented. Individual agents of the state such as police officers or prison officers may also be separately represented in the same case. While all of these individuals and agencies may be legally represented with funding from the state, the state may provide no funding for representation for the family.

Sir Peter concluded that “in some cases the inequality of arms may be unfair or may appear to be unfair to the family”85 He recommended that “the Lord Chancellor gives consideration to amending his Exceptional Funding Guidance (Inquests) so as to provide exceptional funding for legal representation for the family where the state has agreed to provide separate representation for one or more interested persons.”86

86.The Ministry of Justice reviewed Legal Aid for inquests in 2018–19. Its conclusions included:

we have decided that we will not be introducing non-means tested legal aid for inquests where the state is represented. However, going forward, we will be looking into further options for the funding of legal support at inquests where the state has state-funded representation. To do this we will work closely with other Government Departments. [ … ] Bereaved families need better awareness of when legal aid is available, but whilst we accept that in some cases it is right that they should have legal representation we are mindful that a significant expansion of legal aid could have the unintended consequence of undermining the inquisitorial nature of the inquest system. It could also reinforce the commonly held misconception that an inquest’s role is to apportion blame, as opposed to finding fact and learning lessons. All the work we have done affirms the need to maintain an inquisitorial system and highlights the crucial role of the coroner in achieving this. The measures set out in this document therefore seek to improve the current system rather than revolutionise it.87

The Ministry of Justice’s work with other departments has not yet resulted in any funding for legal representation for bereaved people at inquests.

Steps to assist bereaved people other than legal representation

87.Deputy Chief Coroner, Derek Winter told us:

It is really important that we recalibrate the tone of inquests [ … ] I have been working with the regulators—the Solicitors Regulation Authority and the Bar Standards Board, together with a group of experienced inquest lawyers—to develop a toolkit, a set of competencies and standards. … because this is a specialist area of advocacy, which requires a certain tone to the proceedings. That should be rolled out in the spring. It complements a protocol that Government lawyers should sign up to, which is in the MOJ guide to coroner services.88

88.The Government added the protocol of ‘principles guiding the government’s approach’ to the Ministry of Justice’s Guide to Coroner Services for Bereaved People in January 2020.89 These principles apply when a Government Department (or Departments) has interested person status in an inquest.

89.The principles are that the Government and the lawyers it instructs will:

90.Alex Chalk told us about some other initiatives:

the MOJ in January of this year [2020] held a conference for people to attend, effectively sending the message out, “This is how we want inquests and inquiries to be carried out. [ … ] The BSB and the SRA are working together to provide inquest-specific information to lawyers. Also, the MOJ has re-established a stakeholder forum to engage with other Government Departments to see what more can be done to assist bereaved families.”91

91.Deborah Coles, Director of INQUEST, told us that she did not believe these measures were a reasonable alternative to non-means tested legal aid for bereaved people at inquests where the state is paying for other interested persons to be legally represented:

It involves families being told, “You don’t need lawyers,” and state lawyers being told, “Just be a bit nicer to families, and then everything will be all right,” [ … ] The lawyer representing a family and asking those questions that that family really need answered not only speaks to the family and recognises how traumatic these processes can be for families but protects the public interest.92

92.The Government’s steps to support the inquisitorial nature of inquests are welcome but are insufficient by themselves to prevent large multi-handed inquests, where individuals’ and organisations’ reputations are at stake, from becoming adversarial.

93.Mrs Tracey McCourt submitted evidence about representing her family at the inquest into the death of her brother-in-law without access to legal representation:

We were told that as a family we would not qualify for Legal Aid and that if we wanted to, we could represent ourselves, again we were devastated [ … ] The Inquest began [ … ] and was scheduled for three weeks. Nothing could have prepared me for what I was met with on that first day, the amount of people there, mainly police officers left me feeling sick to my stomach. The police force and police officers involved had barristers, they also had members from the Police Federation and Professional Standards, there was me and a 4th year law student with all Leonard’s family behind me. The first three days were just terrifying, I felt way out of my depth and just thought that I was letting my family down as they were so desperate for answers to what had happened to their son and brother.93

94.Victoria Lebrec of RoadPeace (which is a national charity for road crash victims in the UK) told us that legal representation for some but not others can sway the outcome of the inquest:

In road deaths, the driver is always represented by the insurance company’s legal team, and that inevitably sways slightly the way in which the inquest is carried out.94

95.A bereaved family member submitted written evidence to us showing how he had to rely on a charity for legal representation in a case of unlawful killing:

In our case, a homicide [abroad], the British perpetrator was given legal aid to appeal against the first Coroner’s verdict of “Unlawful killing”, by way of a judicial review in the High Court. We, as the bereaved family had no such access to legal representation, either at the High Court, or at the subsequent second inquest [ … ] Had it not been for the timely intervention by the Charity “Murdered Abroad” [ … ] we would not have been able to achieve the correct verdict at the second inquest.95

Alex Chalk in his evidence paid tribute to lawyers who gave their time for free at the London Bridge tragedy:

That was absolutely in the finest traditions of the legal profession. I know they have the gratitude of the individuals, but they certainly have mine as well.96

96.Andrew McCulloch, a bereaved parent, told us how difficult it was to raise money for legal representation by crowd funding:

We had to go down the road of crowdfunding, because taking on a judicial review was an incredibly difficult thing to do. Everyone talks about crowdfunding as if it were a simple panacea. It is incredibly difficult to set it up. It takes a lot of time. You have to make videos and to have events. When you are wrecked by the death of your daughter, are in a distressed state, are trying to hold your professional life together—to continue making some sort of living while you are doing that—and are trying to hold the family in one piece, to be expected to do that as well in order to get justice is a disgrace in a country like this.97

97.2017 saw the publication of the Bishop James Hillsborough Report, Dame Elish Angiolini’s report on deaths in police custody, Lord Bach’s final report of his Commission on Access to Justice, and the Chief Coroner’s Third Annual Report, all of which made recommendations that provision of non-means tested legal aid should be provided for bereaved people, in particular where the state provides representation for other interested persons, such as in relation to deaths in police custody or prison or where NHS bodies are legally represented.

98.The Right Reverend Bishop James Jones and the Victims’ Commissioner, Dame Vera Baird QC, submitted written evidence to this inquiry supporting the development of funding outside the legal aid system. One option they are considering is that public authorities that choose to be legally represented at inquests would contribute to funding legal representation for bereaved people too.98

99.Deputy Chief Coroner, Derek Winter told us that coroners, themselves, sometimes write to the legal aid agency because they consider the people who have been bereaved should have publicly funded legal representation:

There are occasions where coroners will write letters of support for funding applications. Coroners are trying to level up, to use a popular phrase, not just making sure that the family’s questions are put but, if there is good reason for representation, to support that. Beyond that, there is not much more that coroners can do.99

100.Andrew Bridgman, an assistant coroner in Manchester South, submitted evidence rejecting the view that legal aid is not needed because inquests are inquisitorial:

As an independent judicial officer conducting my own inquiry, how can I possibly represent the views of the family? They may have complete[ly] different issues. I invite them to tell me what their issues and concerns are. But they may miss the point. And I find it far easier for me as a coroner to conduct my inquiry more thoroughly and without fear of bias if the family is represented.100

101.Alex Chalk told us of his support for legal aid for legal representation at inquests for bereaved people in very limited circumstances:

I do not sit here and say that there should never be legal aid for families. [ … ] of the 420 or so applications for exceptional case funding [last year], 280 were granted. That is something a little over 60%. It is not the case that we are saying to people as a Government, “There you go,” and fobbing people off by saying that exceptional case funding is in place, knowing fine well that no one is going to get it. That is not the case at all. It is available and people do use it.101

The statistics above do not include those who did not apply for legal aid, either because they were unaware of it or because they did not think they would be eligible.

102.Alex Chalk suggested that representations from coroners supporting legal aid applications should be given great weight102 and that where state parties are legally represented that should almost always lead to a grant of legal aid for bereaved people.103 He also made the point that extending legal aid would use resources that could be spent elsewhere:

blanket legal aid [would] mop up a whole load of resources where they, perhaps, might not be going as far as they could be going in, say, social welfare law or other areas of legal need.104

103.Bereaved people should not be put through the difficult and time-consuming process of meeting the exceptional cases requirements and the means test for legal aid where public authorities are legally represented at public expense at the inquest into the death of their loved one. The Ministry of Justice should by 1 October 2021, for all inquests where public authorities are legally represented, make sure that non-means tested legal aid or other public funding for legal representation is also available for the people that have been bereaved.

Challenging coroners’ decisions

104.The Ministry of Justice’s Guide to Coroner Services sets out what to do if bereaved people have a complaint about a coroner’s personal conduct or the standard of service received.105 The first are dealt with by the Judicial Conduct Investigations Office and the latter can be directed to the local authority (or police authority) with an option to escalate to the Local Government Ombudsman for those unhappy with the local authority’s response. The Ombudsman cannot review or alter a coroner’s decision, such as one about whether to hold an inquest or what evidence to consider.

105.As with any branch of the judiciary, coroners sometimes make errors. Judge Lucraft acknowledged this: “I am the first to accept that we do not always get everything right, whichever branch of the judiciary we come from … “106

106.There is no right of appeal as such from an inquest. However, it is sometimes possible to challenge a coroner’s decision, or the outcome of an inquest, by way of an application under Section 13 of the Coroners Act 1988, or an application for judicial review. Applications to the High Court under Section 13 of the Coroners Act 1988 can be made only with the consent of the Attorney General. The High Court can either order an inquest to be held where a coroner had refused to hold one or quash, (that is cancel), an inquest and order a new one where that is in the interests of justice.107 In 2019 the Attorney-General received 16 applications under section 13 and proceeded with four of them.108

107.Coroners’ decisions are also subject to judicial review. The legal test for overturning decisions by way of judicial review is a demanding one. In essence the High Court will not overturn a coroner’s decision simply because it is the wrong decision; the decision must meet a higher test of being unlawful or unreasonable, or the product of an unfair procedure.109 Applicants must apply to the High Court for permission before they can start judicial review proceedings, which is an added barrier.

108.We asked André Rebello, Honorary Secretary of the Coroners’ Society, what can be done to speed up the process of remedying coroners’ errors:

That is a problem, because section 40 of the Coroners and Justice Act was not enacted [ … ] The number of judicial reviews and section 13 Coroners Act 1988 challenges are perhaps lower than for any other legal jurisdiction; there are fewer challenges to coroners. That is because there is no real appeal from a coroner’s decision. There has to be a judicial review or a section 13 challenge on insufficient inquiry or other defect in the process.110

109.Deborah Coles, Director of INQUEST told us:

As has already been said, there is no appeals process. That was initially in the Act. The reality is that it is very difficult to challenge a coroner. Of course there is a high threshold in terms of judicial review.111

110.André Rebello, supported a new appeals process but acknowledged that it would be extensive:

I can see a lot of advantages in having an appellate process, but I can see a very high cost, because how many circuit judges would be involved in reviewing coroners’ decisions? Who is an interested person? Is there a preliminary inquiry? Is there an investigation? Should an inquest be opened? Is there a post-mortem? Should that post-mortem be less invasive? Which witnesses should be called? What is the scope of the investigation?112

111.Judge Lucraft was in favour of staying with the current arrangements, although not completely opposed to an appeals system if it could be funded properly:

my preferred option is that we retain the jurisdiction of the High Court to look at applications for judicial review. If you are going to look at a broader range of appeals from decisions of coroners, that will bring with it quite a requirement of manpower, resource and finance. I am not saying that I am against it—if you were to fund it properly.113

112.Alex Chalk, recognised that the current system was difficult for some but felt it was the workable option:

On the issue of appeal, we think it is about right at present. Arguments could be made either way [ … ] Not everyone wants to tip off to the High Court to review decisions. I recognise that. It is a hurdle to cross. Equally, we want to make sure that there is not endless either satellite litigation or appellate litigation.114

113.The current arrangements for challenging coroners’ decisions are unwieldy and cause unacceptable delays, stress and often expense, for bereaved people. The Ministry of Justice should introduce a system of appeals similar to that in Section 40 of the Coroners and Justice Act 2009 as originally enacted.

Amending Section 13 of the Coroners and Justice Act 2009

114.The Chief Coroner, Judge Lucraft, suggested a change to the Section 13 process in his annual report to give the High Court greater flexibility when it quashes an inquest. In essence it would give the High Court the power to use its own findings about the death instead of ordering a fresh inquest, where it is satisfied that it is neither necessary nor desirable in the interests of justice that a fresh investigation or inquest.115

115.INQUEST were concerned that bereaved people in such a case who had fought either to have an inquest or to have a new inquest might be left feeling that justice had not been served where the High Court decided it had enough information and an inquest was not required.

116.There may be circumstances where with the consent of the bereaved people concerned, it would be sensible for the High Court to be able to direct that the particulars of the Record of the Inquest be amended as appropriate without ordering a fresh inquest. The Government should consider adopting the Chief Coroner’s proposed amendment to Section 13 with the caveat that the High Court could use the new power only with the consent of the interested party applying under Section 13.

Stillbirths

117.Stillbirths cannot be referred to coroners.116 The CJA 2009 did not include a provision to change this. There have been repeated calls for stillbirths to be brought within the remit of the Coroner Service.117 The Government consulted on this issue in 2019 with a proposal that deaths after 37th week of pregnancy should be in scope of an inquest.118 It has yet to publish a response.

118.The Government consultation on coronial investigation of stillbirths was welcome but it is disappointing that it appears to have stalled. The Ministry of Justice should revive the consultation on coronial investigation of stillbirths and publish proposals for reform.

44 Coroners’ investigations and inquests, Briefing Paper Number 03981, House of Commons Library, February 2021, p11

45 The Coroners’ Society of England and Wales (COR0030), Appendix A

46 Q5

48 The Coroners’ Courts Support Service (COR0061), section 1

49 The Lullaby Trust, SUDC UK, Sands - The Stillbirth and Neonatal Death Society, Child Bereavement UK (COR0070), paras 1.1 and 1.2

50 Andrew McCulloch (screen writer at Freelance) (COR0029), para 3

54 Board of Deputies of British Jews (COR0091), paras 4–5

55 Ministry of Justice, Guide to Coroner Services for Bereaved People, January 2020

56 Ministry of Justice, Guide to Coroner Services for Bereaved People, January 2020, p6

60 RoadPeace (COR0066), para 6

64 The Coroners’ Courts Support Service (COR0061), second para

66 The Coroners’ Courts Support Service (COR0061), section 6

67 Ministry of Justice (COR0096), para 49

69 The Coroners’ Courts Support Service (COR0061), section 5

71 Victim Support (COR0023), para 9

72 Coroners’ investigations and inquests, Briefing Paper Number 03981, House of Commons Library, February 2021, p11

75 Dame Elish Angiolini Report of the independent review into deaths and serious incidents in police custody, Home Office, October 2017, p 215

76 The Coroners’ Society of England and Wales (COR0030), section 6

78 Bishop James Jones’ review of the Hillsborough families’ experiences, The patronising disposition of unaccountable power, Home office, November 2017, p 6

82 Legal aid for representation at an inquest, House of Commons Library, briefing paper 04358, April 2019, p3

83 Coroners’ investigations and inquests, House of Commons Library, briefing paper 03981, February 2021, p10

87 Ministry of Justice, Final report: Review of legal aid for inquests, February 2019, p 11

89 Ministry of Justice, Guide to Coroner Services for Bereaved People, January 2020, Annex A

90 Ministry of Justice, Guide to Coroner Services for Bereaved People, January 2020, Annex A, p iii

93 Mrs Tracey McCourt (COR0020), paras 2 and 7

95 Mr Brian Chandler (COR0042), para 1

98 Dame Vera Baird QC (Victims’ Commissioner for England and Wales at Office of the Victims’ Commissioner); The Right Reverend James Jones KBE (Author of the report: ‘The patronising disposition of unaccountable power’ (COR0074), see 4th para under heading ‘Our approach’

100 Bar Council, Running on Empty, Civil Legal Aid Report, Bar Council, January 2021, p16

105 Ministry of Justice, Guide to the Coroner Service for bereaved people, updated January 2020, paras 8.3 and 8.4

107 Challenging Coroners’ decisions, House of Commons Library, Briefing Paper Number 00525, 5 March 2020, pp 2–3

108 Ministry of Justice (COR0096), para 63

109 Judicial Review: A short guide to claims in the Administrative Court, House of Commons Library, research paper 06/44, September 2006, second para.

116 The investigation of stillbirth, House of Commons Library, Briefing Paper 08167, March 2019, p12

117 The investigation of stillbirth, House of Commons Library, Briefing Paper 08167, March 2019, p17




Published: 27 May 2021 Site information    Accessibility statement