whether or not the CPS decides to prosecute for manslaughter or other serious criminal offences;
whether a public inquiry is to be held; and
the decision of the Coroner as to when the inquest should be held.
When the police investigate a work related death and this leads to a file being submitted to the CPS, the inquest will be formally opened and adjourned pending the outcome of the police investigation and the CPS prosecution (if any).
When an inquest will be held
Inquests must be held in the circumstances outlined in section 8(1) of the Coroners Act 1988, namely:
where the deceased has died a violent or unnatural death;
where the deceased has died suddenly and the cause of death is unknown; or
where the deceased has died in prison or in a place or such circumstances as to require an Inquest under any other Act.
When a public inquiry is held
If a public inquiry is held that adequately investigates the cause(s) of death, it may not be necessary to resume the inquest1.
Until Lord Cullen’s inquiry into the rail disaster at Ladbroke Grove, prosecutions in England and Wales always took place before public inquiries. This may not now always be the case. Much will depend on the need to quickly identify the causes of a disaster and put in place measures to prevent a recurrence.
‘Article 2’ inquests
Where employees (or other emanations) of the state potentially bear responsibility for loss of life (whether by their actions or omissions), the right to life in Article 2 of the European Convention on Human Rights2 may be engaged.
If the Coroner determines that Article 2 is engaged, an enhanced form of inquest will be held in order to fulfil the state’s duty to initiate an effective public investigation by an independent body in such circumstances. The limited ambit of a usual inquest will not meet this obligation imposed on the state. An example would be a death in custody, either in prison or under police detention.3 Whether the enhanced
form of inquest will be required will depend on the precise circumstances of each particular case.4 For further guidance, see the section The Coroner and HSE – Role of the Coroner.
Should the inquest be held before any HSE prosecution?
HSE prosecutions will generally take place after the conclusion of the inquest. There is legal authority to this effect5. It is HSE policy that a final decision on enforcement action will not normally be made until after the inquest is held6. This recognises that:
additional information may come to light as a result of the inquest; and/or
the Coroner may decide to refer the case back to the police/ CPS for further consideration of a manslaughter charge.
HSE does not seek to use the inquest as an opportunity to test the available evidence in advance of enforcement proceedings. However, HSE is mindful of the fact that a jury could still return a verdict of unlawful killing, in which case the CPS may
reconsider the evidence with a view to
prosecuting for gross negligence manslaughter. HSE's policy is designed to prevent a repeat of the circumstances that occurred in R -v- Beedie 7. In that case, a manslaughter conviction was quashed, as the prosecution should have been stayed as an abuse of process: the accused had already been prosecuted for a health and safety offence relating to the defective state of a gas installation, which had resulted in the death.
This approach also underpins the effective working of the Work-Related Death Protocol and informs the HSE policy on disclosure prior to an inquest.
Coroners may seek to persuade HSE that a health and safety prosecution should proceed prior to an inquest on the basis that:
the HSE case is very serious;
it is likely to be strenuously contested; and
it will therefore explore all of the issues pertinent to the inquest.
This course may appear attractive to the Coroner, as it will reduce both the length and the cost of an inquest. However, it carries with it the risks that occurred in Beedie (see above), is contrary to the Work-Related Death Protocol and should therefore normally be avoided.
HSE investigations and subsequent proceedings are generally directed towards the issue of risk and may therefore not explore all the issues that are relevant to the inquest or which the bereaved wish to know about. The death of a person may be pleaded as an aggravating feature in a health and safety prosecution but it does not form an essential element of the offence. The statutory duty for investigating the cause of death remains with the Coroner.
Coroners' power to adjourn
Section 8(1) of the Coroners Act 1988 requires a Coroner to hold an inquest as soon as practicable following a death, and s/he is not permitted by the Rules to adjourn an inquest for the sole reason that criminal proceedings arising from the death have commenced 8. However, the Coroner must adjourn where proceedings for murder, manslaughter, infanticide, causing death by dangerous driving, causing or allowing the death of a child or vulnerable adult, or aiding, abetting, counselling or procuring suicide are ongoing.
It is therefore advisable to liaise with the magistrates’ court and certainly the Coroner whenever a potential health and safety prosecution is pending following a death. If a Coroner seeks to adjourn an inquest until after an HSE prosecution is complete, inspectors are advised to seek advice from HSE Legal Adviser’s Office.
It is important to remember that the Coroner makes the decision in relation to the timing of the inquest and that, unlike the police and DPP, HSE has no statutory power to require a Coroner to adjourn the inquest pending the conclusion of criminal proceedings.
When the Coroner should sit with a jury
All inquests may be held with a jury. However, an inquest must be held with a jury in a number of circumstances, including where:
death occurs in prison, or in police custody, or death results from an injury caused by a police officer in the purported execution of his duty;
there is reason to suspect that the death was caused by an accident, poisoning or disease, notice of which is required to be given under any Act to a Government Department, to an inspector or other officer of a Government Department or an inspector appointed under section 19 HSWA; or
the death occurred in circumstances, the continuation or possible recurrence of which are prejudicial to the health and safety of the public or any section of the public 9.
If the Coroner consults you and other properly interested persons on the issue of whether to summon a jury, it may be necessary to remind him/her of R -v- Poplar Coroner, ex-parte Chaudhry, The Times, October 20, 1992, where it was held that it is the Coroner’s task to consider whether there is reason to suspect that the death occurred in “circumstances the continuance or possible recurrence of which is prejudicial to the health or safety of the public”. If it appears to the Coroner that there are such circumstances, then s/he must summon a jury.
As already indicated, the purpose of the inquest is to determine who the deceased was, how, when and where he came about his death 10. No verdict shall be framed in such a way as to appear to determine any question of criminal or civil liability 11.
Notification by the Coroner
Rules 19(b)(ii) and 20(2)(f) of the Coroners Rules 1984 require the Coroner, if so requested by an HSE inspector, to notify the inspector of the date, hour and place of the inquest. It is therefore important that you write to the Coroner and ask to be notified.
There is a similar requirement placed on the Coroner 12 to inform you, unless impracticable, of the date, hour and place of any post-mortem examination if the death may have been caused by a reportable accident or disease.
It is extremely rare and generally unnecessary for HSE inspectors to attend post-mortems. Only medically qualified persons are entitled to attend. You will therefore need to consider whether a Medical Inspector needs to attend. In rare cases, the Coroner may request that you attend in order to assist him.
Pre-inquest hearings
In some cases, the Coroner may decide to hold a pre-inquest hearing. The purpose of the pre-inquest hearing is a matter for the Coroner. However, this may be an opportunity for you and other properly interested persons to ascertain from the Coroner the ambit of the inquest, i.e. those issues which the Coroner considers relevant. This will mainly depend on whether an extended form of inquest is required to fulfil the obligations on the state under Article 2 of the European Convention on Human Rights (see ‘Article 2’ inquests above and the section The Coroner and HSE – Role of the Coroner for further guidance).
If you have not already been provided with a list of witnesses, the pre-inquest hearing may be an opportunity to find out which witnesses will be called. You may wish to contact the Coroner prior to a pre-inquest hearing to determine whether s/he requires any further assistance. The Coroner should be dissuaded from using a pre-inquest hearing to pressure you into undertaking further enquiries on his/her behalf (see the section The Coroner and HSE – HSE assistance to the Coroner). You should be aware that the Coroner has limited powers in relation to disclosure (see the section The Coroner and HSE – Disclosure of information to the Coroner).
The inquest hearing
If an inquest concerns a reportable accident or disease, you should normally attend the inquest. Where medical evidence is likely to be important, you should consider inviting a Medical Inspector along to advise you on the medical aspects of the case.
As already mentioned, Coroners’ practice varies widely. Prior to the inquest date, you will be notified as to whether the Coroner will call you to give formal evidence. This may be at a pre-inquest hearing (see above).
If you are called to give formal evidence before the Coroner’s court, you will be required to be ‘sworn in’ in the same way as you would to give evidence in any other court of law. You will stand in the witness box and the Coroner will ask you to explain your professional role. You will then be expected to answer questions put to you by the Coroner regarding the issues to be determined by the inquest. If you are unsure what the Coroner will require, you should contact the Coroner’s Officer prior to the hearing. The extent to which you can provide factual evidence will depend on the time when you attended the scene. You should be careful about offering opinion evidence that is outside your individual expertise.
After giving formal evidence, the Coroner will invite the legal representatives present in the court to put any relevant questions to you. The jury and the family will then be given an opportunity to ask questions. These are likely to be by way of clarification of a technical issue or the circumstances.
You must always bear in mind the purpose of the inquest and refrain from expressing your opinion in relation to any breach of the relevant statutory provisions. It is, however, part of your function at the inquest to refer the Coroner to material that is relevant to the case. This may include:
the applicable legislation;
codes of practice;
industry standards.
Should the Coroner invite you to sit on the bench with him/her as an assessor, you should decline. While HSE appreciates the wish for a technical assessor, HSE believes the practice could raise questions regarding the role of the inspector, especially if there were subsequent criminal proceedings 13. In general, an inspector is likely to be of equal assistance if called as a witness, where s/he has first hand knowledge/evidence or expertise in the matter under consideration.
Before attending the inquest, you should carefully consider what papers to bring with you. It is advisable to maintain regular contact with the Coroner following the death. However, if the Coroner has not indicated what he or she wants, then you should copy those papers that you believe will be of most assistance to the Coroner for his/her use, while still having in mind the restrictions that apply to disclosure of information.
You should attend the inquest whether or not you are required to give formal evidence. Your role at the inquest is as a ‘properly interested person’ as defined by rule 20(1) of the Coroners Rules 1984. Rule 20(2)(f) confers the entitlement on you, as HM Inspector of Health and Safety 14, to examine witnesses at the inquest. This entitlement should be exercised with caution. You should listen to the evidence from witnesses in answer to the Coroner’s questions. The witnesses may also be asked questions by legal representatives of the company or firm involved and the bereaved and injured, as well as any other interested parties.
The inquest is not part of the investigation and it will therefore not usually be necessary for you to ask questions. However, if matters arise in the course of the inquest that require clarification, you may wish to do so. If a prosecution for health and safety offences is likely to follow the inquest, inspectors should seek advice from HSE Legal Adviser’s Office before questioning witnesses at an inquest. When necessary, legal representation will be arranged. A careful record should be kept of questions asked and answers given by witnesses.
If there is a serious discrepancy between a witness’s evidence during the inquest and a previous written statement, and there is to be a prosecution, you should seek advice from Legal Adviser’s Office as soon as possible. Any evidential inconsistencies will be relevant to the review of the case and may affect the decision to prosecute. Moreover, all inconsistencies between written statements made by potential prosecution witnesses and their evidence at an inquest will be disclosable under the provisions of the Criminal Procedure and Investigations Act 1996 and the Attorney General’s Guidelines on Disclosure in Criminal Proceedings. You should refer to the section on Disclosure for further details.
The Coroner will sum up before the jury retires to consider its verdict.
Admissibility of evidence taken before Coroner
As indicated in the preceding paragraphs, where an inquest is held before a prosecution for health and safety offences, evidence given at the inquest will be relevant to the review and preparation of the case and should always be considered in detail before proceedings are issued.
The Coroner’s notes of evidence 15 from an inquest are not in themselves admissible in subsequent criminal or civil proceedings as evidence of the truth of the witnesses’ evidence at the inquest 16. However, it is worth reiterating that the notes may reveal inconsistencies that could affect the decision to prosecute, or point to the need for further enquiries.
The Coroner is under a duty to take notes of evidence adduced at the inquest 17 and is also obliged to provide a copy of those notes to any properly interested person who requests them 18. As with obtaining a court transcript, Coroners will charge for copies of their notes. It may be that the Coroner’s notes are admissible as proof of the fact that words contained in the notes were said by the witness at the inquest, but not as evidence of the truth of what was said 19. Should you consider it is appropriate/necessary to your case to use the Coroner’s notes in this way, you should contact Legal Adviser’s Office for further advice.
Verdict
The following are examples of the type of verdicts that might be returned:
Natural causes
Industrial disease
Dependence of drugs/non-dependent abuse of drugs
Want of attention at birth
Suicide
Attempted/self induced abortion
Accident/misadventure
Disaster the subject of public inquiry
Lawful killing
Open verdict
Unlawful killing
Still birth
Self neglect or lack of care/neglect
Although juries commonly return either a verdict of accidental death or a verdict of misadventure, there is no material difference between the two 20. The return of an open verdict is appropriate where the evidence did not fully or further disclose the means whereby the cause of death arose.
In HSE cases, the Coroner will often direct the jury to consider a limited range of verdicts. The most common verdicts returned in relation to work-related deaths are “Accident” or “Industrial Disease”. You should be aware of the higher criminal standard of proof (i.e. “beyond reasonable doubt”) required to find a verdict of “Unlawful Killing” or “Suicide”. In order for there to be neglect, there has to have been a distinct opportunity to offer or provide relevant care (be that nourishment, liquids, medical attention, shelter or warmth) which was not provided and which directly led to the death. If the timescale between the identified need and the death is too short, there will have been no neglect. Neglect can be a freestanding verdict or the jury may find that neglect contributed to, or aggravated, the death 21.
Increasingly, Coroners are making use of narrative verdicts, which may or may not refer to the terms given above 22. The narrative may be answers to a set of questions posed by the Coroner to him/herself or the jury.
Recommendations for action
Under rule 43 of the Coroners Rules 1984, the Coroner may announce at the inquest that s/he is reporting the matter to the authorities, including HSE, with recommendations for action to prevent the recurrence of similar fatalities, and in such cases a report to you will follow. If you receive recommendations for action from a Coroner, you should inform your line manager and Legal Adviser’s Office.
Costs
You should note that applications for costs are not made in the Coroner’s court.
Footnotes
Coroners Act 1988, ss 16 and 17, and s17A (as inserted by the Access to Justice Act 1999, s71)
Incorporated into domestic legislation by the Human Rights Act 1998
R v HM Coroner for the Western District of Somerset & Another ex parte Middleton [2004] UKHL 10. An inquest, being the means by which the state ordinarily discharged its procedural obligation to investigate under Article 2 of the Convention, ought ordinarily to culminate in an expression, however brief, of the jury’s conclusion on the disputed factual issues at the heart of the case. The only change needed to the current regime was to interpret the word ‘how’ in the rules (‘how … the deceased came by his death’) as meaning not simply ‘by what means’ but ‘by what means and in what circumstances’. That could be done by inviting an expanded form of verdict, by inviting a narrative form of verdict in which the jury’s factual conclusions were briefly summarised, or by inviting the jury’s answers to factual questions put by the Coroner. If the Coroner invited a narrative verdict or answers to questions, he might find it helpful to direct the jury with reference to some of the following matters: where and when the death took place; the
cause or causes of such death; the defects in the system which contributed to the death; and any other factors relevant to the circumstances of the death.
R (on the application of Takoushis) v HM Coroner for Inner North London & Others [2005] EWCA Civ 1440. In cases where a death may have been caused by medical negligence in an NHS hospital, the ‘traditional’ form of inquest will, together with the possibility of criminal, civil and disciplinary proceedings,
satisfy the obligation on the state imposed by article 2 to carry out a public investigation of the facts that will be practical and effective.
See R -v- Beresford (1952) 36 Crim AppR.1. and Smith v DPP (2000) RTR 36, 164 JP96, R (on the application of Stanley) v Inner North London Coroner [2003] All ER (D) 351 (Apr), section 16 Coroners’ Act 1988.
This rationale is given in the Home Office Newsletter No.35 s6 30 th April 2001
As “an inspector appointed by, or a representative of, an enforcing authority, or any person appointed by a government department to attend the inquest ” – r ule 29(2)(f)
A charge will be levied for transcribing of the inquest
See Bird v Keep [1918] 2 KB 692 where the findings of a Coroner’s jury as to the cause of death and the record of the evidence upon which their decision was reached was inadmissible in a claim for compensation for personal injury and death.
Coroners Rules 1984, r.39
Coroners Rules 1984, r.57
The courts have not as yet considered this point in relation to Coroners’ notes, although the common law allows the admission of “a public document compiled by a public officer under a duty to inquire and report facts of public interest”.
R -v- Portsmouth Coroner ex parte Anderson (1987) 1 WLR 1640
R v N Humberside and Scunthorpe Coroner ex parte Jamieson [1994] 3 All ER 972
R v HM Coroner for the County of West Yorkshire ex parte Sacker [2004] UKHL 11
