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We look at statistics to see what is happening in our society, particularly in the case of self-harm—we have talked a lot about suicides already—but without the accurate coding of a death we do not know. There is a problem when there is only a narrative verdict, but there is also a problem sometimes if there is not a narrative verdict because it does not set the context of the death. That was the thinking behind Amendment 27, which aims to make sure that whoever is involved in the hearing will put some thought into which category they felt would be most appropriate for the death to be classified as well as providing a narrative verdict.

There are other examples that I could give, but because of the time I will not go into them. I have a whole collection, however, and it is to the credit of the Office for National Statistics that it manages to provide coding on some of the very complex verdicts that emerge.

There is another problem about how a death occurred. As well as the means by which the death occurred, there can be important cases involving public health and safety, where the Human Rights Act does not apply and there is need for a broader inquiry, such as deaths raising concern about transport or workplace safety; the death of a vulnerable old person in a nursing home; or the death of someone in a private workplace. There needs to be a lot more said than simply “how” their death came about.

On Amendment 26, the Bill appears to prevent verdicts of unlawful killing or neglect which appear to determine civil liability. As I understand it, there is a debate in the courts at present about whether an inquest can contain judgmental words such as “serious” or “unreasonable”. It seems that this dates back to 1984. Since then, however, processes of judicial review, regulatory law and professional accountability have increasingly been developed. I am grateful to Inquest for drawing to my attention the inconsistency between this legislation and the legislation in Scotland where, if there is a fatal accident inquiry, deaths are investigated and the sheriff is allowed to determine, among other

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things: where and when the death and any accident resulting in the death took place; the cause or causes of the death and any such accident; the reasonable precautions, if any, whereby the death and any accident resulting in the death might have been avoided; the defects, if any, in any system of working which contributed to the death, or any accident resulting in the death, and any other facts which are relevant to the circumstances of the death.

I understand from Inquest that it has long argued that the prohibition on verdicts appearing to determine an issue should be removed from coronial law altogether. The issue in an inquest is responsibility, not liability. There can be confusion, which is why these amendments have been put down. Indeed, I began to wonder, in the light of the recent judgment in Northern Ireland, whether this part of the legislation would now require a small amount of amending. I would leave that up to the Minister and the Bill team and not attempt to do that myself.

Amendment 29 links to this and is quite specific about whether precautions were taken to prevent or avoid the death; and that is linked again to the safety aspects and whether proceedings or questions should be raised immediately following the inquest to protect others who might be in a high-risk environment but are unaware of it. That relates particularly to employers. I hope that that explains, as briefly as I can, the thinking behind this group of amendments and why the word “how” seems grossly inadequate and really should be expanded on.

Lord Alderdice: I will speak to a number of amendments in this group in my name and that of my noble friend Lord Thomas of Gresford and in the names of other noble Lords. There are two elements to the consideration of Clause 5. The first is what people—particularly the bereaved and the family affected—generally expect of a coroner and a coroners’ court. They expect that, in an experienced, thoughtful and wise non-adversarial investigation, someone with judicial qualities will be able to get to the bottom of what happened and explain that to them. Many of these issues are complex and highly unlikely to be fully described or properly conveyed with a narrow, diagnostic mandate. The second consideration is that we have been faced, as the noble Lord, Lord Alton, has pointed out, with decisions of your Lordships’ House in a judicial capacity that show that the human rights convention requires us to go much further than would have been the case in the past.

Those are two important components. What is somewhat disappointing about this clause is that it appears to be saying that, although we have to accommodate the human rights convention, we will do so as narrowly as we possibly can, rather than opening it up and giving as wide as possible opportunities for the coroner to explore things and to describe them for the benefit of the family and the community and of wider knowledge.

The noble Lord, Lord Alton, and the noble Baroness, Lady Finlay of Llandaff, have begun to try to open up the thinking and the possibilities that might be available to the coroner. In these amendments, we have tried to

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add to conformity with the human rights convention the interests of justice. We should be doing things not just because we are being forced into it—because we have signed up to the convention—but because it is the right thing to do and opens things up in the interests of justice.

What things could reasonably be considered? We have tried to enumerate a few, but the list is not exhaustive. For example, to what extent were systemic failings a factor in the death, or what appropriate precautions could have been taken? If a person takes their life, was the risk of their doing so not recognised, whether whole or in part, by people who were acting on behalf of the state? There are other factors of this kind, but I often find it useful in these circumstances to give an example. Here, I declare an interest as a consultant psychiatrist working in the National Health Service.

I shall go back to a fairly early experience of my own. A man was in hospital in an extremely distressed, depressed and psychotic state. He believed that he was responsible for all sorts of terrible things that had been happening. There had been a disco disaster in another country, with a terrible fire and a lot of people killed. He believed that his thoughts had contributed to this terrible business. He was not very forthcoming to the staff in general, but, as a young doctor, I spent some time with him and he was prepared to talk a bit more to me. I realised that this man was very disturbed and very likely to kill himself.

I explained the situation to my consultant boss. He said, “Well, I think we need to make sure that nobody allows this man out of the ward. This is very dangerous; he’s going to harm himself”. Rather foolishly, 100 years or so previously, those who had designed the hospital had put it not very far from a railway line, so we knew that there was a serious risk to this man. When the man said to one of the nursing staff, who was a very kind person, “Look, I’m very anxious; I’m in a terrible state and I just want to go over to the hospital shop to buy myself some cigarettes to help myself calm down”, the nurse felt that it was not a wholly unreasonable demand. But the man never returned to the ward. He went straight down to the railway line and threw himself on top of the next train.

To describe that simply as a man who was an in-patient in a hospital and committed suicide is not very helpful. It does not tell us what happened; it does not tell us what could have made sure that it did not happen; it does not tell us whether systemic failings or professional failings were to blame. We should know not because we are out to attribute blame and liability but because, if we understand what actually happened, that often helps the family and it could help hospital staff and others to deal more appropriately with things.

Unfortunately, Clause 5(3) gives a fairly robust indication that nobody should say anything except the least that they can say—the coroner and the jury if one is involved should be very careful about what they say—whereas in many ways we should try to encourage people to be as openly thoughtful as they can be. There are of course reasonable and proper, as well as professional, limits to what people should say and do.

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The amendment suggests that, rather than simply saying that the human rights convention has forced us down a particular road, we should embrace it and ask whether we can open up our verdicts to be more narrative and explanatory in their design and approach, taking some responsibility to point up any of the systemic or other failures or problems that have arisen during an appropriate investigation. This is not an adversarial but an investigatory system of judgment, which can bring help and comfort to families and enable them to understand more of what has happened, as well as helping the system to develop and improve by learning from sometimes painful experience.

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Lord Dubs: I shall speak to Amendments 11 and 28, both of which are in this group. I welcome the fact that the Government are seeking to have these measures compliant with the Human Rights Act and the European Convention on Human Rights. Amendment 11 would allow a coroner to ascertain the circumstances of a death in cases where there could be a risk to public health and safety or where the coroner believed that it was in the public interest. There may be cases not necessarily subject to the application of the Human Rights Act or the protection of the convention where it would surely be appropriate for an investigation into the relevant circumstances of the death to take place. I might perhaps best illustrate this by giving a number of examples.

There might, for instance, be a death of a vulnerable person in a private care home. There might be a death in a private workplace. There might be a death involving British state agents in circumstances where the Human Rights Act does not apply because the date of death was before the Human Rights Act came into force, or because the location of death was abroad and outside the limited extraterritorial scope of the European Convention on Human Rights. It might be the death of a British national abroad, not involving British state agents but in circumstances where there was no prospect of adequate investigation by the host state. There might be deaths involving other circumstances that, if allowed to continue or recur, may result in the deaths of other members of the public. That is surely one of the key issues. If there is a problem that can be established, and doing so may save other people’s lives, I argue that it is appropriate that the Bill should cover that circumstance and give the coroner the power to investigate. That is the purpose of Amendment 11.

On Amendment 28, the problem is that there seems to be a possible conflict between two parts of the Bill. These are the general duty on coroners outlined in Clause 5 and what is said in Clause 10, particularly subsection (2), to the effect that a determination from a coroner may not be worded in a way that appears to declare a person guilty of a criminal offence or to determine a civil liability. On the face of it, that may not seem improper, but a coroner might interpret it as a constraint on the more general investigation of a death. The purpose of the amendment is to ensure that this constraint will not be a limiting factor on how the coroner approaches his responsibilities. The dilemma is a simple one. I hope that Amendment 28 is a way around that dilemma, in enabling the coroner to

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investigate a death without being constrained by the fear that he or she might be close to determining civil or criminal liability. It is a worthwhile amendment and I hope that the Minister will be sympathetic in his approach to it.

Lord Thomas of Gresford: I support the amendments that have been spoken to. On the question of civil liability, it should be realised that, in practice, when dealing with an accident case, the very first thing that a solicitor or counsel will look for is the inquest transcript and findings. If certain facts emerge in the course of the inquest, or if certain witnesses give evidence and the coroner comes to a particular view, it is very powerful material that will encourage an insurance company to settle the case so that no litigation follows. Of course, if there is litigation, the fact that the inquest has come to a particular view is, in civil cases, of no consequence. The court will decide on the evidence that is produced before it. However, the inquest is the starting point for the solicitor in looking at how to approach an insurance company to settle a claim.

In the case of criminal liability, the old rule used to be that a coroner’s jury could commit a defendant or named person to the assizes. I recall having just such a case as a young solicitor. A baby had died at the age of six or 10 weeks and there was a great deal of controversy over how that death had occurred. The coroner’s jury committed the case to the assizes, but the practice was that the Director of Public Prosecutions would then hold ordinary committal proceedings in a magistrates’ court. I appeared as a solicitor for the father of the baby in the magistrates’ court and secured his acquittal at that point. When I was about 23 or 24, I regarded that as a great victory, but 15 years later I was told by the paediatrician whom I had cross-examined that my client had killed his second child and then confessed to having killed his first child. That has coloured my view of acquittals ever since.

However, that is not the system that operates at the moment. Clearly, no coroner’s verdict, or a jury’s verdict, can determine either criminal or civil liability. However, it has its place in determining whether civil liability can be established to the satisfaction of an insurance company that will settle the claim. For that reason I support the amendments tabled by the noble Baroness, Lady Finlay, and consider that the Bill as drafted is far too narrowly confined as regards the purpose and significance of a jury’s verdict.

Lord Bach: I am grateful to all noble Lords who have taken part in this very important debate. The noble Lord, Lord Thomas of Gresford, criticises the narrowness of this part of the Bill. Why are the matters to be ascertained so narrowly? I suggest that it is because the nature of coroners’ investigations is different from other forms of legal proceeding. The purpose is to establish facts; it is not to apportion blame or establish legal liability. That is an important principle. Of course, modern law has altered. The European Convention on Human Rights has had an effect and I shall say something about that.

Clause 5 needs to be read in conjunction with Clause 10—that was referred to by my noble friend Lord Dubs—and paragraph 6 of Schedule 4. Clause 5

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merely outlines what the legal purpose of the investigation is, and the information that such an investigation has to ascertain. Clause 10 clarifies that any determination or findings are framed in a way that does not determine any question of criminal or civil liability because that is not the function of an inquest; that is the function of a criminal or civil trial. Coroners retain the ability to give a narrative verdict. Paragraph 6 of Schedule 4 gives the coroner the power to make a report on actions to be taken to prevent other deaths. These powers combined give a very wide ambit for coroners to make whatever comments they deem necessary.

It seems to us that Amendment 7 in the names of the noble Lord, Lord Alton, and the noble Baroness, Lady Finlay, seeks to extend the remit of the matters to be ascertained as part of a coroner’s investigation to an unnecessary extent. We fear it would mean that all cases are investigated to an extent that ascertains not only the immediate factual details of the case—in other words, the identity of the deceased person concerned and how, when and where they died—but the broader circumstances leading up to and surrounding the death.

As the law stands, and in the Bill as drafted, such an extensive investigation is required only in cases where Article 2 of the European Convention on Human Rights is engaged. As the noble Lord, Lord Alderdice, gave his helpful, graphic example, I thought that that case seemed to me to be, prima facie at least, an Article 2 case. Such an approach would lead to a significant drain on resources and to delays in holding inquests and in most cases add little to the totality of knowledge about a death. I stress that coroners already have, and under the Bill will continue to have, the ability to conduct a wider investigation into any deaths that they have a duty to investigate.

Clause 5(2) merely reinforces the fact that in cases where Article 2 is engaged, coroners must—I emphasise “must”—ascertain the wider circumstances leading up to and surrounding the death as part of the investigation. In cases where Article 2 is not engaged—and there are many of them—coroners may still examine the wider circumstances leading up to and surrounding the death if they consider it appropriate to do so.

With regard to looking at the wider circumstances of any death caused by suicide, I understand fully the point made by the noble Lord, Lord Alderdice, at Second Reading that there may need to be some distinction between the means of death—that is, by what method the deceased person concerned killed themselves—and the circumstances in which they came by their death—that is, what triggered within them the desire to take their own life. However, our view is that this issue can more properly be addressed by guidance from the Chief Coroner specially tailored to those deaths rather than placing a blanket requirement in the Bill.

Turning to Amendments 8 and 11, I agree that deaths may occur in certain circumstances where Article 2 rights are not engaged and where therefore the requirement to hold a wider-ranging investigation under Clause 5(2) does not arise but where there would nevertheless be benefit in the broader circumstances of the death being investigated—the type of case to which my noble friend Lord Dubs referred. This may be for the

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reasons stated in the amendments before us today or for other reasons. I repeat that the discretion to carry out a wider-ranging investigation already exists and will continue to exist under the reformed coroner regime. The coroner has the discretion to set the scope of an inquest and may decide to investigate the broad circumstances that caused or contributed to any death, even if Article 2 is not formally engaged.

Given that broad discretion—and I should add that this is a matter on which the new Chief Coroner may decide to issue guidance—we do not believe that it is necessary to list in the Bill the circumstances contained in the amendments. In addition, the Bill was strengthened in the other place in respect of following up recommendations to prevent future deaths. That is why Schedule 4 and Clause 29 provide for the Chief Coroner to receive all reports from senior coroners on the matter of preventing deaths, together with the responses of the recipients of those reports, and for the Chief Coroner to then summarise them every year in his or her annual report to the Lord Chancellor.

I move on to Amendments 9, 10 and 29. We are concerned that these amendments would take the coroner system back to the days to which the noble Lord, Lord Thomas of Gresford, referred, when coroners had a role in the detection of crime and would routinely attribute blame and assign civil or criminal liability. During the previous century, coroners’ duties in these respects were gradually reduced. For example, the Coroners (Amendment) Act 1926—I do not suggest that the matters that the noble Lord, Lord Thomas of Gresford, was talking about occurred prior to 1926—introduced the requirement for the adjournment of an inquest until the completion of indictable criminal proceedings. Concern over coroners’ possible encroachment into areas of criminal justice were renewed in 1975, as some of us will remember well, when a coroner’s jury named the missing Lord Lucan—my officials asked whether I should refer to him as the noble Lord, Lord Lucan—as guilty of the murder of his children’s nanny. This anachronism was removed by the Criminal Law Act 1977, which excluded the question of criminal liability from the purposes of the inquest.

The matters listed in the amendments that I refer to are, in our view, matters that are far more suited to coroners’ reports to prevent future deaths. A coroner could, quite properly and legitimately, give his or her view on such matters in any report to prevent future deaths. The Government place great store on these reports that are currently made under rule 43 of the existing Coroners Rules 1984, and will in future, as I have said, be made under paragraph 6 of Schedule 4 to this Bill.

Similarly, Amendment 12, which seeks to remove subsection (3) of Clause 5, would remove the obligation not to express an opinion with respect to the matters to be ascertained under Clause 5(1) and (2). This obligation is there because the matters to be ascertained under these clauses are matters of fact. There should not be room for additional opinion in determining these matters. I shall point out that subsection (3) of Clause 5 contains the proviso that it is subject to paragraph 4 of Schedule 6, which I have just referred

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to. There will also be scope, within the underpinning rules, for narrative verdicts, which coroners and juries, when directed to do so, make use of when it seems a more appropriate format than a so-called short-form verdict—such as “death by misadventure” or “death by suicide”—in order to reflect the circumstances of the death. Those provisions give enough scope for coroners and juries to make known matters that they believe ought to be made known. As I understand it, they do not have to relate to Article 2 cases.

I turn to Amendments 26 and 28. I want to assure my noble friend Lord Dubs and the noble Baroness, Lady Finlay, that Clause 10(2) is not intended to prevent a coroner or jury considering facts bearing on civil or criminal liability in order to reach a determination. A determination pointing to responsibility for a death will not offend subsection (2) of Clause 10, provided that it is framed in such a way so as not to appear to determine any question of criminal liability on the part of a named person or any question of civil liability. Again, I do not believe it is necessary to state this on the face of the legislation.

We would be particularly concerned by any changes to the law that allowed the determinations and statements made by coroners or juries to be framed in a manner that could lead to comments on matters of criminal and legal liability, as Amendment 26 would appear to ask to allow. We have doubts that simply stating on the face of the Bill that any determinations made under Clause 10(1)(a) should not be construed in that way, as Amendment 26 suggests, would be sufficient to prevent this from actually happening. Coronial determinations or findings that can be construed as apportioning blame could well have an influence on later proceedings when matters of civil or criminal liability are being dealt with in the courts. We want to avoid the situation in particular where a possible murder or manslaughter trial is prejudiced because the jury are aware of determinations and findings made at an inquest that appear to have already indicated a person’s guilt.

I turn finally, but not at all least, to Amendment 27, in the name of the noble Baroness, Lady Finlay, which would require every coroner verdict to use an,

“internationally agreed code for the cause of death”,

and include a narrative description. As we understand it, the first part of her amendment would, in practice, mean classifying each cause of death into a category recognised by the World Health Organisation. I accept that, on the face of it, that amendment may make it easier to compile statistics on the causes of death, so that deaths can be centrally collated to reveal trends and clusters. That is her case, I think. We fear that, in practice, it could mean that coroners would feel compelled to apply a classification that did not accurately reflect how someone died. Why is this? This is because not every death investigated by a coroner will be caused by a disease or health problem listed in the International Classification of Diseases. Having said that, we recognise the importance of statistics to inform future public policy but we believe that coroners need discretion in order to give a verdict that reflects the particulars of the individual case. The amendment would also require a narrative verdict in every inquest. We do not consider

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such a requirement to be necessary or appropriate. Coroners are already aware of the option of a narrative verdict, but in most cases short-form verdicts are perfectly adequate to convey the cause of death accurately to the satisfaction of all parties and interested persons.

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