The Coroner and HSE
- Role of the Coroner section
- Coroners' officers section
- Contacting the Coroner section
- Working with the Coroner section
- Disclosure of information section
- Preventing Future Deaths Reports and recommendations by the Coroner section
Role of the Coroner
1. Although the office of Coroner is one of great antiquity, its powers and duties are set down within a modern statutory framework which was significantly amended by Part 1 of the Coroners and Justice Act 2009 (‘the 2009 Act’) which introduced a number of structural changes to the coroner system. It created the national head of the coroner system, the office of Chief Coroner. It introduced the concept of ‘investigations’ into deaths, which where appropriate will include an inquest, as well as making new provisions relating to coroner areas, creating new titles for coroners, and removing barriers to where investigations can be held. There is a helpful guide (although it predates the latest changes) to the role of Coroner on the Ministry of Justice website.
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 hearing1, and Inspectors must avoid any suggestion that they have decided or influenced what is relevant.
3. 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 future deaths.
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. The Investigations Regulations permit coroners to delegate administrative but not judicial functions to their officers and other support staff.
Contacting the Coroner
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. Rule 9 of the Inquest Rules requires a Coroner to notify relevant interested persons of the time, date and location of the main inquest hearing within one week of the hearing date being set. In practice your regular letters should ensure that the Coroner liaises with you about the timing of the inquest.
Working with the Coroner
11. The practices of different Coroners concerning their inquiry and the conduct of inquests can vary but the 2009 Act (and the Inquest Rules and Investigation Regulations introduced in 2013) should help ensure consistency of practice and approach by Coroners across England and Wales. 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. Whilst it was written before the commencement of the 2009 Act it usefully sets out the service standards that bereaved family members, other ‘properly interested persons’, and witnesses in a Coroner inquiry should expect to receive.
13. The Coroner may request assistance from you and it is HSE policy to assist wherever HSE is investigating a work-related death 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 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). The MoU was drafted before the changes to the law and procedure introduced by the 2009 Act (and may be revisited in due course) but it has not been revoked and remains useful in setting out the roles of HSE and Coroners and the joint aim of promoting effective working relationships and fostering constructive cooperation.
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.
Disclosure of information
To the Coroner
19. HSE’s level of assistance to the Coroner will differ on a case by case basis. Some investigations may only involve the provision of an initial factual report on the circumstances surrounding the incident together with disclosure of relevant material, whereas others may require a more significant level of assistance e.g. updating the Coroner on the progress of HSE’s investigation by letter, production of a final report, attendance at Pre-Inquest Reviews and the Inquest. Inspectors should agree (and record) the level of assistance to be provided with the Coroner and keep this under review. For instance, attendance at an inquest may involve a significant level of HSE resource and therefore Inspectors should only attend when it is necessary i.e.
- when requested or summoned to attend by the Coroner to give evidence;
- where it is necessary for HSE’s investigation, particularly when there is a possibility that new evidence may come to light which may lead to new lines of enquiry which require further investigation;
- to confirm HSE’s enforcement decision;
- in high profile or sensitive investigations.
20. Whilst HSE’s costs for assisting the Coroner cannot be recovered via Fee for Intervention, an application can be made for recovery via the Prosecution Bill of Costs where there is a prosecution and successful conviction. Further guidance on recovering costs associated with assisting the coroner is provided in the Enforcement Guide (E&W): Costs: Inquest Costs.
Disclosure of information
To the Coroner
21. 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.
22. The need for care when disclosing material to third parties remains a key element in the approach set out in the MoU although the law now presumes that a Coroner will disclose to interested persons unless one of the exceptions applies- see paragraph 21.
23. Part 3 of the 2013 Inquests Rules sets out new arrangements for the disclosure of information to interested persons. Under these new provisions (effective from 25th July 2013) a Coroner must normally disclose copies of relevant documents to an interested person, on request, at any stage of the investigation process. The presumption is now in favour of disclosure to interested persons of material held by the Coroner. Inspectors must therefore work on the basis that what is disclosed to the Coroner will be disclosed to the interested persons unless one of the restrictions on disclosure applies (see paragraph 24 below).
By the Coroner
24. Rule 13 of the Inquests Rules states that, subject to rule 15, where an interested person asks for disclosure of a document held by the Coroner, the Coroner must provide that document or a copy of that document, or make the document available for inspection by that person as soon as is reasonably practicable.
25. Such documents will include:
- any post-mortem examination report;
- any other report that has been provided to the Coroner during the course of the investigation;
- where available, the recording of any inquest hearing held in public,
- any other document which the Coroner considers relevant to the inquest.
26. Importantly, there are restrictions on disclosure (rule 15). A Coroner may refuse to provide a document or a copy of that document where:
- There is a statutory or legal prohibition on disclosure (for example police reports);
- The consent of any author or copyright owner cannot reasonably be obtained;
- The request is unreasonable;
- The document relates to contemplated or commenced criminal proceedings; or
- The Coroner considers the document irrelevant to the investigation.
27. The decision in Worcestershire County Council and Worcestershire Safeguarding Children Board v HM Coroner for the County of Worcestershire  EWHC 1711 (QB) is the subject of a Chief Coroners Law sheet which refers to disclosure as a two-stage process. In the first stage disclosure is to the coroner alone, for the purpose of deciding the scope of the inquest and the witnesses to be called. In the second stage the coroner decides whether there can and should be onward disclosure to interested persons. It recognises that Coroners are frequently provided with reports which are not disclosed further e.g. Police reports They are intended to assist the coroner in understanding the issues and deciding which witnesses are to be called at the inquest. It can be argued that a similar approach should be taken to Reports submitted by HSE.
28. If documents provided to a Coroner relate to contemplated criminal proceedings and it is believed that onward disclosure to the interested persons would prejudice the criminal investigation or future criminal proceedings then an application to the Coroner to withhold them should be considered. Advice should be sought from Legal Advisors Office.
29. In the past although Coroners could not require investigatory material in HSE’s possession to be provided to them, the courts indicated that it was in the public interest for investigators to offer assistance so as to avoid unnecessary duplication.4 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.
30. Paragraph 1 of Schedule 5 to the 2009 Act now gives a Coroner power to summon witnesses and to compel the production of evidence for the purposes of an investigation (paragraph 1(2)) or an inquest (paragraph 1(1)) by way of written notice. Further guidance is available in the section dealing with the Chronology of proceedings. The Chief Coroner will issue guidance in due course but it is believed that this power will be used sparingly and not as a matter of course against regulators. See Chronology of proceedings for further guidance.
31. You should therefore still 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.
32. In line with the MoU, contact with the Coroner should lead to agreement regarding disclosure, and in what form. If agreement cannot be reached, the matter should be referred to Legal Adviser’s Office.
33. 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.
34. In some cases, the factual report might be sufficient for the Coroner. However, it is now not unusual 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. However you should be aware that the presumption now is that the Coroner will disclose material to interested persons unless an application is made under Rule 15 (see earlier) and this needs to be considered when providing the material. 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 may be ongoing and may not be concluded until after the inquest. HSE will generally provide copies of statements rather than the originals.
35. 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:
- Even if you do not disclose a person's statement, the Coroner can still call that person as a witness and they are likely to give the same evidence to the inquest so this evidence will then be disclosed.
- If HSE begins proceedings, the core evidence is likely to be disclosed to the defendant at an early stage as part of the provision of initial details.
- If you have not yet taken a statement from an important witness, or interviewed a suspect under caution, you may consider that prior release of evidence would prejudice this. However, it may be possible for you to conduct the interview before sending the material to the coroner, or agree with the Coroner that he will not disclose evidence to interested parties until you have conducted the relevant interview. If additional evidence comes out at the inquest, you have the option to take further statements or invite a suspect for another PACE interview. You should not routinely delay interviewing a suspect until after the inquest. If you are considering this, you should seek advice from LAO.
- You may consider that disclosure of a witness statement to other parties may lead to a risk of harassment or assault. If it was disclosed to the Coroner then one of the criteria in Rule 15 would need to exist in order to prevent onward disclosure to interested persons. In any event, you will need to have real evidence, not just a supposition, that such a risk exists. You will need to have the same sort of grounds as you would have if you were considering making an application within criminal proceedings to have the witness' statement read because of fear of reprisals (exceptions to the hearsay rule).
- If your investigation is a joint one, typically under the WRDP with the police, IPCC, or any other body such as the local authority or fire service, you should notify them of any discussions you have with the Coroner and should seek their views prior to disclosing any material to him. Similarly, if they hold any material you should make it clear that you expect them to consult you prior to any such disclosure.
36. Where potentially prejudicial material is identified and the Coroner decides not to disclose it to the interested persons (see below) because one of the exceptions in Rule 15 exists, 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. 5
37. Given the changes to the rules concerning disclosure you should contact Legal Adviser’s Office if you experience any difficulties with issues of disclosure connected with an inquest.
38. 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.
39. 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.
40. 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.
41. The Coroner may also wish to make use of Rule 23 of The Coroners (Inquests) Rules 2013 (‘the Inquests Rules’), 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. The new Rules allow written evidence not only when the maker cannot attend but also when they will not attend even though there may not be a justified reason for non- attendance. See the Chronology of the proceedings for further guidance
Preventing Future Deaths Reports and recommendations by the Coroner
42. The Coroner may write to HSE following an inquest if s/he is of the opinion that action should be taken to prevent future deaths 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 Coroners Inquests.
- R v N Humberside & Scunthorpe Coroner, ex parte Jamieson  3 All ER 972. It is for the Coroner to decide what is relevant to the discharge of his statutory duty. Back to reference of footnote 1
- The ECHR was incorporated into domestic legislation by the Human Rights Act 1998. Back to reference of footnote 2
- 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. The arrangements described in this section complement the requirements of FOI. For further information on FOI, see the Ministry of Justice – Freedom of Information and HSE’s guidance on FOI. Back to reference of footnote 3
- R v Hammersmith Coroner (ex parte Peach)  2 All ER 7; Peach v Commissioner of Police of the Metropolis  2 All ER 129. Back to reference of footnote 4
- Witnesses are not obliged to answer any question that tends to incriminate them and the Coroner must inform witnesses that they may refuse to answer (Rule 22 Inquests Rules 2013). Back to reference of footnote 5