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Clause 12: Intercept evidence
104. This clause sets out the necessary amendments to RIPA so that if an investigation is certified by the Secretary of State any material to which RIPA applies can be disclosed to the High Court judge conducting the investigation. This includes the Secretary of State disclosing material to a High Court judge in order for the High Court judge to decide whether to hold the inquest with or without a jury. The judge may also order disclosure to be made to the judge alone or also to any person appointed as independent counsel to the inquest one of whose roles will be to represent the interests of the deceased’s family at the inquest. Counsel may probe and challenge the evidence on their behalf. The clause extends to Northern Ireland, where provision similar to that contained in clause 11 will have effect under Schedule 9.
Clause 13 and Schedule 1: Duty or power to suspend or resume investigations
105. This clause gives effect to Schedule 1 which contains provisions on suspending and resuming investigations in various situations. Schedule 1 sets out when a senior coroner must or is able to suspend and resume investigations.
Paragraph 1: Suspension of investigation where certain criminal charges may be brought
106. Paragraph 1 of Schedule 1 contains provision for suspending the senior coroner’s investigation in the event that it is likely that criminal proceedings will be brought in connection with the death. It is intended to avoid duplicate investigations. This is based on rules 26 and 27 of the 1984 Rules.
107. Paragraph 1(2) requires the senior coroner to suspend an investigation if asked to do so by a prosecuting authority because someone may be charged with a homicide offence involving the death of the deceased or an offence that is alleged to be a related offence.
108. Paragraph 1(3) requires the senior coroner to suspend an investigation if asked to do so by a Provost Marshal or the Director of Service Prosecutions because someone may be charged with the service equivalent of a homicide offence involving the death of the deceased or the service equivalent or a service offence that is alleged to be a related offence.
109. Under paragraph 1(4), if the senior coroner has to suspend an investigation under paragraphs 1(2) or 1(3), this suspension must be for at least 28 days. The senior coroner has the power to extend (more than once if needed) the period of the suspension if asked to do so by the person who or authority which requested the original suspension (through paragraph 1(5)).
110. Paragraph 1(6) sets out the definition of “homicide offence” and “related offence”. It also explains that a “service equivalent of a homicide offence” means an offence under the Armed Forces Act 2006 corresponding to a homicide offence.
Paragraph 2: Suspension where certain criminal proceedings are brought
111. Paragraph 2 of Schedule 1 sets out the arrangements for suspension of the senior coroner’s investigation when criminal proceedings have been brought in connection with the death. It is developed from section 16 of the 1988 Act.
112. Paragraph 2(2) requires a senior coroner to suspend an investigation into a death on becoming aware either that someone has appeared or been brought before a magistrates’ court charged with a homicide offence involving the death of the deceased or that they have been charged on indictment in the Crown Court with such an offence. Paragraph 2(3) requires a senior coroner to suspend an investigation into a death on becoming aware that someone has been charged with the service equivalent of a homicide offence involved the death of the deceased.
113. Paragraph 2(4) requires a senior coroner to suspend an investigation on being informed by a prosecuting authority that someone has appeared or been brought before a magistrates’ court charged with a related offence (as defined in paragraph 1(6)) or has been charged on indictment in the Crown Court with such an offence and the prosecuting authority has asked the coroner to suspend his or her investigation.
114. Paragraph 2(5) requires a senior coroner to suspend an investigation on being informed by the Director of Service Prosecutions that a person has been charged with the service equivalent of a related offence and the Director of Service Prosecutions has asked the senior coroner to suspend his or her investigation.
115. The senior coroner need not suspend an investigation under paragraph 2(2), (3) or (4) where the prosecuting authority or the Director of Service Prosecutions (as the case may be) has no objection to the investigation continuing or where the senior coroner thinks that there is exceptional reason for not doing so (paragraph 2(6)).
116. Paragraph 2(7) makes provision for investigations which are already suspended under paragraph 1.
Paragraph 3: Suspension pending inquiry under Inquiries Act 2005
117. Paragraph 3 of Schedule 1 sets out the circumstances in which a senior coroner’s investigation can be suspended where there is an inquiry under the Inquiries Act 2005. It is based on section 17A of the 1988 Act.
118. Paragraph 3(1) requires the senior coroner to suspend an investigation into a death if requested to do so by the Lord Chancellor on the basis that there will be an inquiry under the Inquiries Act 2005 in which the cause of death is likely to be adequately investigated. The senior coroner does not have to suspend an investigation if he or she thinks there are exceptional reasons for continuing with it (paragraph 3(2)). Paragraph 3(3) makes provision for investigations which are already suspended under paragraph 1.
Paragraph 4: General power to suspend
119. Paragraph 4 of Schedule 1 provides a general power for a senior coroner to suspend an investigation if he or she thinks that it would be appropriate to do so. This may be appropriate if another investigation is being conducted into the death, for example, by the Independent Police Complaints Commission, the Health and Safety Executive or an Accident Investigation Board, or if an investigation is being conducted in another jurisdiction, for example, if the death occurred abroad.
Paragraph 5: Effect of suspension
120. Where an investigation is suspended under paragraphs 1, 2, 3 or 4, any inquest being held as part of that investigation must also be adjourned and if it is being held with a jury, the senior coroner may discharge the jury.
Paragraph 6: Resumption of investigation suspended under paragraph 1
121. If the senior coroner suspends an investigation because someone may be charged with an offence, the investigation must be resumed (subject to paragraphs 2(7)(d) and 3(3)(b)) once the relevant period has expired.
Paragraph 7: Resumption of investigation suspended under paragraph 2
122. Paragraph 7 of Schedule 1 sets out the arrangements for resuming investigations suspended because certain criminal proceedings have been brought.
123. Under paragraph 7(1) the senior coroner can resume an investigation only if he or she thinks there is sufficient reason to do so.
124. By paragraph 7(2), an investigation cannot be resumed (subject to sub-paragraph (3)) until the criminal proceedings which triggered the suspension have come to an end in the court of trial.
125. Paragraph 7(3) allows a senior coroner to resume an investigation before the criminal proceedings have ended where the prosecuting authority or the Director of Service Prosecutions (as the case may be) has confirmed that it has no objection to this.
126. Paragraph 7(4) sets out who the prosecuting authority is for the purposes of paragraph 7(3). Paragraph 7(5) makes clear that the outcome of a coroner’s investigation resumed under this paragraph must not be inconsistent with the result of the criminal proceedings which triggered the suspension.
127. It could be that the senior coroner resumes the investigation because the criminal investigation did not find all the facts that the senior coroner is required to find or because it did not meet ECHR Article 2 obligations, for example because the defendant pleaded guilty. Indeed the effect of section 6(1) of the HRA is that the senior coroner, as a public authority, would be legally obliged to resume the investigation if this was necessary in order to secure compliance with Article 2.
Paragraph 8: Resumption of investigation suspended under paragraph 3
128. Paragraph 8 of Schedule 1 sets out the arrangements for resuming investigations suspended because of an inquiry. Under paragraph 8(1) the senior coroner can resume an investigation only if he or she thinks that there is sufficient reason for resuming it. It cannot be resumed until after 28 days have passed since either the date that the Lord Chancellor has notified to the senior coroner as date of conclusion of the inquiry or, where the senior coroner has received no such notification, the date of publication of the findings of the inquiry.
129. Paragraph 8(3), 8(5), 8(7) and 8(9) are relevant where the senior coroner becomes aware during the course of the suspension of his investigation that criminal proceedings are under way of a type that would require a suspension under paragraph 2. Under paragraph 8(4), 8(6), 8(8) and 8(10) the investigation may not be resumed before such criminal proceedings have ended unless a prosecuting authority or the Director of Service Prosecutions (as the case may be) has told the senior coroner that it has no objection to the investigation being resumed.
130. Under paragraph 8(4) to 8(10) the investigation may not be resumed before such criminal proceedings have ended unless a prosecuting authority has told the senior coroner that it has no objection to the investigation being resumed.
131. Paragraph 8(11) prevents the resumed senior coroner’s investigation from reaching a conclusion which is inconsistent with the outcome of the inquiry or any criminal proceedings which triggered the suspension. For example, if the outcome of an inquiry was a finding that a particular individual had committed suicide, a senior coroner’s investigation cannot conclude that the particular individual was unlawfully killed.
Paragraph 9: Resumption of investigation under paragraph 4
132. Paragraph 9 of Schedule 1 states that where an investigation is suspended under paragraph 4, it may be resumed at any time the senior coroner thinks there is sufficient reason for resuming the investigation.
Paragraph 10: Supplemental
133. Paragraph 10(1) of Schedule 1 requires that where a senior coroner resumes an investigation under Schedule 1, the senior coroner must resume any inquest that was adjourned under paragraph 5.
134. Where an inquest is resumed, by paragraph 10(3) the resumed inquest may be held with a jury if the senior coroner thinks there is sufficient reason for doing so.
135. Under paragraph 10(4), if the inquest was started with a jury and then adjourned and the senior coroner decides to hold the resumed inquest with a jury, if at least 6 members of the original jury are available to serve, then they will form the jury for the resumed inquest. If not, or the original jury was discharged, a new jury is required to be summoned.
Clause 14: Investigation in Scotland
136. This clause makes provision for the Secretary of State or Chief Coroner to notify the Lord Advocate that he or she thinks that it may be appropriate for a death which occurred abroad to be investigated under the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976.
137. Subsection (1) provides that the clause applies to deaths outside the UK of a person specified in subsection (2) or (3).
138. Subsection (2) specifies the service personnel that are covered, namely members of the regular and reserve forces who, when they die, are subject to service law (which governs all members of the armed forces) under section 367 of the Armed Forces Act 2006, and are on active service, preparing for or supporting active service, or engaged in training for active service.
139. Subsection (3) adds that persons are covered if they, when they die, are not subject to service law but are, under paragraph 7 of Part 1 of Schedule 15 to the Armed Forces Act 2006 (persons designated by or on behalf of the Defence Council), civilians subject to service discipline; and are accompanying service personnel on active service.
140. Subsection (4) provides that, if the body (of someone defined in subsections (2) and (3)) is already in Scotland, or is expected to be brought to the UK, and the Secretary of State thinks that it may be appropriate for the death to be investigated under the 1976 Act, he or she may notify the Lord Advocate in Scotland of this. In such circumstances the Secretary of State has no role.
141. Subsection (5) provides that, if the body is England or Wales, and the Chief Coroner thinks that it may be appropriate for the death to be investigated under the 1976 Act, he or she may notify the Lord Advocate in Scotland of this.
142. Subsection (6) defines “active service”. It means service in an action or operation against an enemy; an operation outside the British Islands for the protection of life or property; or the military occupation of a foreign country or territory.
Clause 15: Investigation in England and Wales despite body being brought to Scotland
143. There may be cases where the Lord Advocate initially decides that it would be appropriate for a Fatal Accident Inquiry to be held into the circumstances of the death but, for whatever reason, the Lord Advocate reverses this decision. In those circumstances the Lord Advocate can notify the Chief Coroner that it may be appropriate for an investigation to take place in England and Wales. An example may be that the family may have moved to England before the inquiry has taken place or other circumstances have changed which indicate that an investigation in England or Wales is more appropriate.
144. Subsection (1) enables the Chief Coroner to direct a senior coroner in England or Wales to conduct an investigation into a death where a body has been brought back to Scotland. The power to make such a direction if the deceased is a person who, when they died, was subject to service law under section 367 of the Armed Forces Act 2006 and was on active service, preparing for or supporting active service, or engaged in training for active service. It also covers where the deceased was a person not subject to service law but, by virtue of paragraph 7 of Schedule 15 to the 2006 Act, was a civilian subject to service discipline who was accompanying persons subject to service law who were engaged in active service. Secondly, the Lord Advocate must have been notified by the Secretary of State or the Chief Coroner that it may be appropriate for the death to be investigated under the 1976 Act. Thirdly, the body must have been brought to Scotland.
145. Fourthly, no Fatal Accident Inquiry has taken place or, if started, has not been finished. Fifthly the Lord Advocate has advised the Chief Coroner that in their view, it may be appropriate for a coroner investigation, in England or Wales, to take place. Lastly, the Chief Coroner must have reason to suspect that the duty to investigate deaths under clause 1 (which applies to deaths in England and Wales) would apply to the death, namely that the deceased died a violent or unnatural death; the cause of death being unknown; or the deceased died in custody or other state detention. If all those circumstances apply to a death the Chief Coroner may direct a coroner in England or Wales to conduct an investigation. Any coroner given such a direction must conduct an investigation into the death, subject to section 3.
Clause 16: Post-mortem examinations
146. This clause sets out the arrangements for ordering post-mortem examinations, and makes slightly different provision from that contained in sections 19 and 20 of the 1988 Act.
147. Subsection (1) gives a senior coroner power to ask a suitable practitioner to make a post-mortem examination of a body if the senior coroner is either responsible for conducting an investigation into the death or a post-mortem examination will enable the senior coroner to decide if he or she has a duty under clause 1 to conduct an investigation. This may be relevant where it is not clear whether a death occurred as a result of a notifiable disease or whether a child was stillborn - where, for example, an infant’s body is found and it is not clear whether it ever had independent life. Where it is known or established that a child was stillborn, the senior coroner will have no further responsibility to carry out an investigation.
148. The term “post-mortem examination” is not defined but it will include any examination made of the deceased including non-invasive examinations, for example, using Magnetic Resonance Imaging (MRI).
149. The 1988 Act makes a distinction between post-mortem and “special” examinations (the latter are a more specific kind of post-mortem examination and would include toxicology tests to establish whether, for example, alcohol or drugs were in the bloodstream). The Bill removes this distinction, enabling the senior coroner to detail the kind of examination he or she would like the practitioner to make - for example, to ask for a particular examination of a tissue or organ which seems most relevant to the cause of death if a full post-mortem is not considered necessary (subsection (2)).
150. Subsection (3) defines a suitable practitioner as either a registered medical practitioner or where a particular form of examination is required, such as an MRI Scan, a practitioner who the Chief Coroner has designated is suitable to carry out such examinations.
151. Subsection (4) ensures that any medical practitioner about whom there are allegations in relation to the death is not able to carry out the examination of the body, although such a person may be represented at an examination.
152. Subsection (5) requires the person making the examination to report the result to the senior coroner as soon as is practicable.
Clause 17: Power to remove body
153. This clause specifies the arrangements for moving a body to a different location, for example to enable a post-mortem examination to be carried out.
154. Under subsection (1) a senior coroner who is responsible for conducting an investigation into the death or who needs to request a post-mortem examination in order to decide if he or she has a duty under clause 1 to conduct an investigation may order that the body be moved to any suitable place. (The notes to clause 16 set out when a senior coroner may need to request a post-mortem examination in order to decide if he or she has a duty under clause 1 to conduct an investigation.)
155. This removes the restriction in section 22(1) of the 1988 Act that a body can be moved only within a senior coroner’s area or to an immediately adjoining area which has caused practical difficulties in a major incident where there have been several deaths. This power will also allow a senior coroner to make use of specialist equipment or skills available in a different part of the country and may, on occasion, mean that full post-mortems can be avoided.
156. The body can be moved to a place which is outside the senior coroner’s area only with the consent of the person providing that place (for example, a mortuary manager and the relevant local authority). The issue of costs may be dealt with in regulations.
Chapter 2: Notification, certification and registration of deaths
Clause 18: Notification by medical practitioner to senior coroner
157. This clause enables regulations to be made by the Lord Chancellor requiring a registered medical practitioner to notify a senior coroner of deaths of which they become aware. Regulations may set out the circumstances in which the medical practitioner will have to make a referral.
Clause 19: Medical examiners
158. This clause relates to the appointment of, and functions to be carried out by, medical examiners. It also enables regulations to be made by the Secretary of State for Health (in relation to England) and the Welsh Ministers (in relation to Wales) about the appointment, payment and training of, and functions to be carried out by, medical examiners.
159. Subsection (1) requires Primary Care Trusts (PCTs) in England and LHBs in Wales to appoint of medical examiners to discharge the functions given to them by this Part.
160. Subsection (2)(a) specifies that PCTs and LHBs must appoint enough medical examiners and make available enough funds and other resources (including medical examiner’s officers) to enable the medical examiners to discharge their function in the area served by the Trust or Board.
161. Under subsection (2)(b), medical examiners will be monitored by their PCT or LHB as to whether or not they meet expected standards or levels of performance in carrying out their work as medical examiners. This monitoring needs to be considered alongside the requirement in subsection (5) for PCTs and LHBs to take no role in relation to the way that medical examiners exercise their professional judgment as medical practitioners.
162. Subsection (3) specifies, subject to regulations under (4)(f), that medical examiners must, at the time of appointment, be fully registered, practising, medical practitioners with at least 5 years experience.
163. Regulations made under subsection (4)(a) will specify terms of appointment for medical examiners and allow for termination of their appointment. Whilst medical examiners will, for the most part, confirm or establish the cause of death for deaths that have occurred in the area served by the PCT or LHB by whom they have been appointed, they may be asked to scrutinise deaths in other areas.
164. Regulations made under subsection (4)(b) will specify what payments may be made to medical examiners by way of remuneration, expenses, fees, compensation for termination of appointment, pensions, allowances or gratuities. Such payments would be in line with arrangements applying in the specific area in respect of remuneration and those applying nationally in respect of other payments.
165. Regulations made under subsection (4)(c) will specify the training that medical examiners must have successfully completed prior to their appointment and the training that they need to undertake during the term of their appointment.
166. Regulations made under subsection (4)(d) will make provision about procedure to be followed by medical examiners in carrying out their functions with a view to ensuring that they are able to carry out independent scrutiny of medical certificates of cause of death (MCCDs) and do so in a way that is robust, proportionate, and consistent. The regulations may also provide that, in order to help ensure their professional independence, medical examiners will not be allowed to confirm or establish the cause of death of any person to whom they are related or with whom they have had any fiduciary relationship; and that they will not be allowed to scrutinise MCCDs prepared by any doctor with whom they have a close working or professional relationship or with whom they have an established fiduciary relationship (see also clause 20).
167. Regulations made under subsection (4)(e) may provide for the functions of the medical examiner to be extended or changed to support future developments of the service.
168. Regulations made under subsection (4)(f) may provide for the functions of the medical examiner to be carried out during a period of emergency certified by the Secretary of State in accordance with subsection (7) by people who do not meet the criteria in subsection (3). (See also clause 20(4) for a related provision allowing the MCCD to be given during a period of emergency by a registered medical practitioner who has not attended the deceased before his or her death and is therefore not the “attending practitioner”.)
169. Subsection (5) specifies that PCTs and LHBs must allow medical examiners to exercise their own professional judgement as medical practitioners in deciding, for example, whether to confirm individual causes of death or refer them to a senior coroner. This provision needs to be read together with the obligation on PCTs and LHBs to monitor medical examiners in subsection (2) and the procedures to be prescribed by regulations under subsection (4)(d).
170. Subsections (8) and (9) make provision concerning periods of emergency certified by the Secretary of State under subsection (7).
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