Although the office of Coroner is one of great antiquity, its powers and duties are set down within a modern statutory framework, in the form of the Coroners Act 1988 and the Coroners Rules 1984 (SI 1984/552, amended by SI 1985/1414).
The Coroner is responsible for deciding on the scope or ambit of the inquest. The Coroner must ensure that the relevant facts are fully and fairly investigated and are the subject of public scrutiny during the inquest hearing[1], and you must avoid any suggestion that you have decided or influenced what is relevant.
The Coroner’s primary function is usually limited to establishing:
the identity of the deceased;
when, where and how death occurred; and
whether it is necessary to make any recommendations for action to prevent a recurrence.
Where it appears that one or more persons acting on behalf of the state are, or may be, in some way implicated in a death either by their actions or inaction, the state is under an obligation under Article 2 of the European Convention on Human Rights[2] to initiate an effective public investigation by an independent body. The House of Lords has ruled that, whilst a criminal investigation and prosecution may not meet this requirement, an inquest is likely to discharge the obligation on the state. However, in order to do so, the inquest must determine not only the identity of the deceased and when, where and how the death occurred, but also in what circumstances.[3]
The case law suggests that it is only those inquests that are concerned with a possible breach of Article 2 by an agent of the state that need to have a wider scope. Other types of inquest can be more limited.[4] It is for the Coroner to decide whether Article 2 applies and therefore which questions s/he will need to address during the inquest. This will impact on the assistance that you provide to the Coroner.
Coroners’ officers
Coroners’ officers are usually former police officers who are responsible for investigating on behalf of the Coroner. This normally involves their taking written statements (“depositions”) from witnesses, which are given to the Coroner before the inquest.
HSE assistance to the Coroner
The practices of individual Coroners concerning their investigations and their conduct of inquests varies widely. It is therefore not possible to give detailed advice on general practice.
The Coroner may request assistance from you and, although it is HSE policy to assist a Coroner wherever possible, you should bear in mind that such assistance is incidental to, and not a part of, your function as an HSE Inspector. You should also remember that HSE has limited resources to meet its own responsibilities. The statutory responsibility for ascertaining the identity of the deceased and when, where and how they came by their death remains with the Coroner.
You should ensure that your investigation is restricted to the authority vested in you by HSWA. You should not expand or even restrict your own investigation under instruction from the Coroner, particularly (in the former case) if it may take you into areas where you do not have authority to investigate. To the extent that your investigation goes beyond health and safety issues, you will be acting beyond your powers and in breach of the law (“ultra vires”).
Disclosure of information to the Coroner
The Freedom of Information Act 2000 (FOI) states that any written request for information must be treated as a request under the FOI regime. In considering an FOI request, the person charged with the decision on behalf of HSE must consider the application of the statutory exemptions.[5] The arrangements described in this section complement the requirements of FOI. An inquest falls within the definition of “legal proceedings” for the purposes of section 28(3) or (7) HSWA. This allows HSE to make disclosure beyond that envisaged by FOI for the purpose of the inquest, not only at the inquest itself, but also to either the Coroner or his/her officers before the inquest. Care must be taken to ensure that this type of disclosure to the Coroner for the purpose of the inquest is not further disclosed indiscriminately without consideration of potential prejudice to either an investigation or subsequent criminal proceedings.[6]
You should also be aware that the unauthorised disclosure of material to third parties could circumvent the rules governing pre-action discovery by parties to potential civil litigation.It could also bypass HSE procedures both on voluntary disclosure to interested parties and on the consideration and application of the statutory exemptions under FOI.
In 2001, HSE met representatives of the Coroners’ Unit of the Home Office and members of the Coroners’ Society to discuss the issue of disclosure to third parties. HSE explained its wish to assist the Coroner wherever it reasonably could whilst ensuring that the risk of prejudice to any ongoing investigation and potential criminal proceedings is minimised. As a result, the Home Office wrote to all Coroners[7], advising that they should not disclose information passed to them by HSE to third parties without first obtaining express agreement from HSE. There have been subsequent meetings with representatives of the Society supporting this approach.
HSE’s approach to disclosure reflects the agreement with the Home Office. The courts have indicated that, whilst a Coroner is not obliged to disclose any witness statements in his or her possession in advance of an inquest and nor can s/he require an authority charged with a criminal investigation to do so, it is in the public interest for investigators to offer assistance to avoid unnecessary duplication.[8] However, HSE recognises that disclosure can help to answer the questions that other properly interested persons might have and can therefore also help the Coroner to set the ambit of the inquest.
Recent case law approved of the practice of Coroners providing a list of witnesses whose evidence will be heard in advance of the inquest. You are therefore entitled to ask the Coroner which witnesses s/he intends to call. The courts have disapproved of attempts to admit all witness evidence without providing the opportunity for properly interested persons to object following advance disclosure. An objection would mean that the witness would have to be called.
This does not mean that all witness statements and documentary evidence have to be disclosed in advance of an inquest. There is an obligation on the Coroner to conduct the inquest in a fair manner. The Coroner has discretion to allow some advance disclosure (e.g. toxicology and post mortem reports, or HSE reports prepared for that purpose). The courts have recognised that in some cases there is less need for advance disclosure and that requirements will vary from case to case. The courts have accepted that they cannot be prescriptive as to what is necessary for the purposes of an inquest.[9]
HSE’s approach allows disclosure to the Coroner, who can determine what is strictly relevant for the purposes of the inquest. This will depend on the scope of the inquiry necessary to meet his or her statutory obligations. The Coroner is then in a position to revert to you to discuss what advance disclosure is necessary and the form which that disclosure will take. This allows you the opportunity to remind the Coroner of the need to minimise prejudice to ongoing investigations or future criminal proceedings. In the first instance, the Coroner may be assisted by a list of the witnesses to the death and a brief summary of their factual evidence.
It is of course for the Coroner to direct his/her own investigation, and s/he is able to take or direct his/her officer to take statements from witnesses for that purpose. The Coroner has no power to direct HSE’s investigation.
Communications with the Coroner
The Home Office has advised Coroners that if they anticipate a need to disclose HSE documents to a third party, an approach should be made to HSE at the outset. This will allow for the preparation of material that is necessary for the purposes of the inquest in a form which, if disclosed, will not prejudice any future criminal proceedings. In the past, there have been a number of inquests where the Coroner has released privileged HSE reports to all parties, despite requests to the contrary. Some Coroners also believe, erroneously, that they can require all papers to be released to them.
Whenever you are asked to provide the Coroner’s office with reports, statements or other material collected or generated for HSE during an investigation, you should write to the Coroner stating that:
the investigation is still ongoing;
you are willing to provide a list of the witnesses to the death seen by HSE and a summary of their factual evidence; but
any other HSE material obtained in the course of the ongoing criminal investigation will only be provided for the exclusive use of the Coroner at his/her request, and upon receipt of a written undertaking not to disclose it to any other person at any time without the express permission of HSE.
The Coroner should be asked to provide a suitable written undertaking agreeing to these conditions, whereupon HSE will assist. This is to allow the Coroner to see any HSE material that might be relevant to the purposes of his/her inquiry before deciding on the scope of the inquest. This approach recognises that the HSE material has been prepared for a different (and usually far wider) purpose to that of the inquest. It also assists the Coroner to pass any FOI requests for this material to HSE.
Where necessary, consideration can, as indicated earlier, be given to the preparation of a report or the editing of material so that disclosure to third parties will not prejudice criminal proceedings.
You should remember that a Coroner is a judicial officer and should be treated accordingly. You should contact Legal Adviser’s Office if you experience any difficulties with issues of disclosure connected with an inquest.
Reform of the coronial system
The Home Office published a position paper on 12 March 2004, proposing fundamental reform of the coronial system. A White Paper is expected soon but these proposed reforms will take several years to come into effect.
Footnotes
R v N Humberside & Scunthorpe Coroner, ex parte Jamieson [1994] 3 All ER 972. It is for the Coroner to decide what is relevant to the discharge of his statutory duty.
The ECHR was incorporated into domestic legislation by the Human Rights Act 1998
R –v- HM Coroner for the Western District of Somerset & Another, ex parte Middleton (FC) [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 Longfield Care Homes Ltd) -v- HM Coroner for Blackburn & Others [2004] EWHC 2467 (ADMIN)
R (Green) -v- Police Complaints Authority [2004] 1 WLR 725
Home Office document “Information for Coroners; Newsletter No. 35, item 6”. 30th April 2001
R –v- Hammersmith Coroner (ex parte Peach) [1980] 2 ALL ER 7; Peach v Commissioner of Police of the Metropolis [1986] 2 ALL ER 129
R –v- HM Coroner for Avon (ex parte Bentley) [2001] EWCA Admin 170, R v HM Coroner for Lincolnshire (ex parte Annette Hay) Lloyd’s LR (Medical) 2000, p 264.
