1. 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 (as amended). There is a helpful guide to the role of Coroner on the Ministry of Justice website at http://www.justice.gov.uk/coroners-burial-cremation/coroners
2. 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.
3. The Coroner's primary function is usually limited to establishing:
4. 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. In such circumstances, the scope of the inquest may be wider. For further guidance on the scope of the inquest, see Chronology of proceedings and the inquest.
5. Coroners’ officers are often former or current police officers and they 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.
6. Where HSE has received notification of a fatality, you should inform the relevant Coroner’s office as soon as possible whether HSE is involved in investigating the death. You should enquire as to the cause of death recorded for the deceased as this may be relevant to your investigation, and maintain regular contact with the Coroner’s office throughout the investigation. An example of an initial letter to the Coroner, which can be amended to suit the circumstances of your investigation, can be found in the Letters and forms section.
7. In the majority of cases, it should be possible to contact the Coroner (or his/her officials) within three weeks of the date of the death. You should also keep the Coroner informed as to the progress of HSE’s investigation. How frequently you will need to contact the Coroner’s office will vary from case to case, but contact at least every two months will often be appropriate. You should aim to contact the coroner regularly to give him an update on the investigation, even if there is in fact little to report, so that he knows that HSE is maintaining its interest in the incident. In particular you should ensure that the coroner is aware when the active part of the HSE investigation is completed.
8. The Coroner may wish to visit the scene of the accident. Where you are aware of this, you should consider whether to accompany him/her on this visit.
9. Where HSE is involved in the investigation, it may be necessary to remind the Coroner that HSE should be informed when the inquest is to be held. Rules 19(b)(ii) and 20(2)(f) of the Coroners Rules require the Coroner, if requested by an HSE inspector, to notify him/her of the date, hour and place of the inquest. In practice your regular letters should ensure that the coroner liaises with you about the timing of the inquest.
11. The practices of different Coroners concerning their inquiry and the conduct of inquests vary widely. Some coroners have recourse to more administrative assistance than others. It is therefore not possible to give detailed advice on general practice beyond the guidance in these sections and the arrangements set out in the Memorandum of Understanding between the Coroners’ Society and HSE (see below).
12. In March 2012 the Ministry of Justice produced a Guide to coroners and inquests and also a Charter for coroner services. The Guide provides general information about coroners and inquests. The Charter sets out the service standards that bereaved family members, other ‘properly interested persons’, and witnesses in a coroner inquiry should expect to receive .These documents are available at http://www.justice.gov.uk/coroners-burial-cremation/coroners.
13. The Coroner may request assistance from you and it is HSE policy to assist wherever possible, while ensuring that the risk of prejudice to its investigations and any future criminal proceedings is minimised. You should, however, bear in mind that such assistance is incidental to, and not a part of, your function as an HSE inspector. The Coroners’ Society is aware 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.
14. 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’).
15. In 2001, HSE met with the (then) Coroners Unit of the Home Office and representatives of the Coroners’ Society to discuss how HSE could assist Coroners whilst ensuring that any risk of prejudice to its investigations and possible criminal proceedings is minimised.
16. HSE has entered into a Memorandum of Understanding (‘MoU’) with the Coroners’ Society, which sets out how the differing statutory duties and functions of the Coroner and HSE can be accommodated in the course of an investigation into a work-related death. While it is for the individual Coroner to determine, within the law, how to conduct the inquest, Coroners have been advised to follow the MoU. Most Coroners are sensitive to HSE’s role and the issues involved, and recognise that the requirements of an inquest are different to those of a criminal investigation (and, potentially, criminal proceedings).
17. You should be familiar with the MoU before contacting the Coroner and should let him/her know that you will be following the approach set out in the MoU when preparing for the inquest. It is intended to review regularly how the MoU is working in practice and, therefore, if you have any difficulties with it, you should inform your legal liaison point and Legal Adviser’s Office.
18. The Coroner is able to take (or direct his/her officer to take) statements from witnesses for his/her own inquiry. The Coroner does not, however, have the power to direct HSE’s investigation.
19. An inquest falls within the definition of “legal proceedings” for the purposes of sections 28(3) and 28(7) HSWA. These allow HSE to make disclosure beyond that envisaged by the Freedom of Information Act 2000 (FOI) 3 for the purpose of the inquest, not only at the inquest itself but also to the Coroner or his/her officers before the inquest. Section 28(7) specifically provides that any information obtained by exercising a power in s20 HSWA can be disclosed for the purposes of legal proceedings. This means that statements taken under s20(j) should be considered for disclosure in the same way as statements made voluntarily. There may sometimes be specific reasons why the disclosure of s20 statements would prejudice the inquiry or their maker, and such instances should be discussed with your principal inspector and, if necessary, advice should be sought from LAO.
20. Where HSE's prosecution is to follow the inquest, care must be taken to ensure that information provided to the Coroner for the purpose of the inquest is not further disclosed indiscriminately without consideration of potential prejudice to the investigation or subsequent criminal proceedings4.
21. In addition, 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 by-pass HSE procedures on voluntary disclosure to interested parties and those relating to the consideration and application of the statutory exemptions under FOI.
22. At the meeting in 2001 between HSE, the Home Office and the Coroners’ Society (see above), the issue of disclosure of investigatory material to third parties was discussed5. The subsequent Home Office Newsletter to Coroners6 advised that they should not disclose to third parties information passed to them by HSE without first obtaining HSE’s agreement7. The need for care when disclosing material to third parties is a key element in the approach set out in the MoU.
23. While Coroners cannot require investigatory material in HSE’s possession to be provided to them, the courts have indicated that it is in the public interest for investigators to offer assistance so as to avoid unnecessary duplication8. HSE also recognises that disclosure can help to answer questions that the bereaved family might have (see also Liaising with the bereaved) and may assist the Coroner in setting the ambit of the inquest.
24. You should therefore discuss with the Coroner the arrangements for sharing information obtained in the course of your investigation. It may be possible to identify contentious issues or areas of potential concern at this stage, but you may be unable to come to a final judgment until the Coroner has explained the scope of his/her inquiry and how s/he intends to conduct proceedings. Your initial letter to the Coroner should draw his/her attention to the MoU and the approach you will take. An example of an initial letter to the Coroner, which can be amended as appropriate, can be found in the Letters and forms section.
25. In line with the MoU, contact with the Coroner should lead to agreement between you as to what information can be disclosed to third parties, and in what form. If agreement cannot be reached, the matter should be referred to Legal Adviser’s Office.
26. Disclosure to the Coroner might be carried out in a number of ways. You should initially offer to prepare a factual report, summarising the circumstances of the death and the conclusions of the investigation to date as to how the death occurred (but not, for obvious reasons before the completion of the criminal investigation, your view as to whether there may have been breaches of legislation). The report should include a list of the witnesses who might be able to give factual evidence directly relevant to the death and a summary of the significant points of the witness statements you have taken. This will assist the Coroner in deciding the ambit of his/her inquiry and which witnesses to call.
27. In some cases, the factual report might be sufficient for the Coroner. However, it is now usual for the Coroner to see copies of some or all of the investigatory material so as to determine what is relevant for the purposes of the inquest. It is HSE's normal practice to copy relevant statements and documents to the coroner if he requests it and this is reflected in the example letter referred to above. Where there is a substantial amount of material, it may not be cost effective to provide copies. It has been explained to the Coroners’ Society that, in such cases, the Coroner and/or the Coroner’s Officer will be invited to attend HSE’s premises to view the material. The Coroner should already be aware from the MoU and/or your communications with him/her that your investigation will be ongoing and will not be concluded until after the inquest. HSE will generally provide copies of statements rather than the originals.
28. When deciding what material to disclose to the coroner, you need to bear in mind the coroner's function as set out in paragraph 3. Some of your material, whilst relevant for your own investigation, may not have a bearing on the issues for the inquest. You also need to consider whether release of any material to the coroner would prejudice your inquiry. In doing this you need to bear in mind the following points:
29. You should ask the Coroner to contact you if s/he considers that advance disclosure of information provided by HSE may be necessary. The Coroner should focus on information relevant to his/her inquiry and be mindful of any potential prejudice to ongoing investigations or future criminal proceedings. However, it may be necessary to remind the Coroner of such risks, particularly where evidence you have gathered is intended as advance rebuttal of any ‘defences’ and its disclosure could prejudice ongoing enquiries, such as future interviews of suspects.
30. Where potentially prejudicial material is identified and the Coroner decides not to disclose it to the interested persons (see below), s/he may nevertheless use that information to inform his/her inquiry. The material will, for example, assist the Coroner in identifying the scope of the inquest, matters each witness may be asked to address and the potential for witnesses to incriminate themselves 9.
31. Provided the approach in the MoU can be adopted, it is not anticipated that HSE should need to request a written undertaking from the Coroner not to disclose material from HSE’s investigation without its permission. You should contact Legal Adviser’s Office if you experience any difficulties with issues of disclosure connected with an inquest.
32. HSE will normally wish to assert privilege over any confidential communications made for the purpose of seeking, obtaining or giving legal advice. That privilege extends to communications with third parties made for the purposes of pending or contemplated litigation, and also to reports which were obtained for the purposes of that litigation. This may include expert reports or draft reports prepared for the purposes of supporting a prosecution, as well as HSE’s internal documents.
33. The above approach applies only to HSE material and not to documents that might be in the possession of others, including the police. You should remember that a Coroner is a judicial officer and treat him/her accordingly.
34. There are no provisions within either the Coroners Act or Rules that provide for, or require, pre-inquest disclosure of witness statements and other documentary evidence. The Coroner cannot require an authority charged with a criminal investigation to disclose material in advance of an inquest.
35. The Coroner does, however, have a discretion to make advance disclosure and may wish to make material available to interested persons, including the bereaved. There is an obligation on the Coroner to conduct the inquest in a fair manner and the requirements of fairness will vary from case to case 10. In some cases, there is less need for advance disclosure; the courts have accepted that they cannot be prescriptive as to what is necessary for the purposes of an inquest - there is no hard-and-fast obligation on a coroner to disclose any witness statements or material 11.
36. The courts have 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. They have also given the following guidance:
37. The Coroner may also wish to make use of Rule 37 of the Coroners Rules 1984, which allows statements to be admitted as evidence by having them read aloud at the inquest, rather than calling the witnesses to give oral evidence. Rule 37 may only be used where the contents of the statement are not likely to be disputed and the courts have disapproved of attempts by Coroners to admit witness evidence in this way without giving interested persons a proper opportunity to object following advance disclosure. An objection would mean that the witness would have to be called. See Rule 37 for further guidance on the rule and advance disclosure.
38. The approach under the MoU allows disclosure to the Coroner, who can determine what is strictly relevant for the purposes of the inquest (see above) and revert to you to discuss what advance disclosure may be required and the form it may take. The MoU envisages discussions between the Coroner (or the Coroner’s officer) and the HSE inspector to identify whether disclosure of material may be prejudicial to the criminal investigation. Where the Coroner considers it necessary to disclose a document which contains material that you consider to be potentially prejudicial, it may be possible to focus the advance disclosure by providing only part of the document to interested persons, omitting (generally by redaction) the material that you identified as causing concern. As stated above, the Coroner may nevertheless use all the information HSE provides, whether disclosed to interested persons or not, to inform his/her inquiry.
39. The MoU also explains that some of HSE’s investigatory material, while relevant to a potential prosecution, will have no part or use within inquest proceedings. If documentary evidence from the HSE investigation is being considered for disclosure pursuant to Rule 37, the Coroner must also decide whether the contents of the documents in question may be controversial.
40. The Coroner may write to HSE following an inquest if s/he is of the opinion that action should be taken to prevent or reduce the risk of death recurring in similar circumstances. If such a report is received, HSE is under a duty to respond within 56 days. Guidance on Coroners’ reports and how to respond can be found in the section Chronology of proceedings and the inquest.