Advocacy at Inquests: A Unique Opportunity

Inquests can be destabilising for advocates. Although there are similarities with other work – they take place in a Court (albeit sometimes at unconventional locations), they are presided over by a judicial figure, witnesses appear and are questioned and juries are sometimes empanelled – the process is not, or at least is not supposed to be, adversarial. It is an inquisitorial process, far removed from the civil and criminal jurisdictions.

In some respects that is not surprising, since the Coroner’s Court is an ancient and unique jurisdiction, originally designed in part to ensure that the Crown was not cheated of taxes (hence both the enduring jurisdiction in relation to treasure and the name – Coroners were originally known as “Crowners”).

We are not concerned here with treasure; instead, this post provides some guidance on the representation of families or other interested persons (“IPs”) – who may be individuals, companies, healthcare trusts or state agencies – at inquests.

The reality of representation at inquests is that it can have a significant impact on other proceedings. Indeed, many inquests form part of the run-up to a civil claim and, in that context, provide a unique opportunity to view and to hear evidence before civil proceedings are even commenced. They are a great opportunity to get an ‘advance preview’ of how witnesses – including your own – react under questioning, and to hear what they say on key points. It is almost like a deposition in the United States.

Inquests thus provide the opportunity for civil cases to be won or lost; and this means that advocacy at inquests must be done right.

A Whistle-Stop Summary of the Role of the Coroner

It is the role of the Coroner that gives inquests their unique character. The role is governed by the Coroners and Justice Act 2009 (“the 2009 Act”), the Coroners (Inquests) Rules 2013 (“the 2013 Rules”) and the Coroners (Investigations) Regulations 2013 (“the 2013 Regulations”).

If a Coroner has reason to suspect that a person died a violent or unnatural death, that the cause of death is unknown or that the person died in custody/state detention, then she must investigate that death as soon as practicable (section 1 of the 2009 Act). Absent discontinuance following autopsy (section 4 of the 2009 Act), section 6 of the 2009 Act compels a Coroner to hold an inquest into the death.

The overarching premise of an inquest is that it is not concerned with blame. As Lord Lane CJ outlined in R v South London Coroner ex parte Thompson (1982) 126 SJ 625:

“Once again it should not be forgotten than an inquest is a fact-finding exercise and not a method of apportioning guilt. … In an inquest it should never be forgotten that there are no parties, there is no indictment, there is no prosecution, there is no defence, there is no trial, simply an attempt to establish facts.”

Therein lies the tension for civil lawyers, who are generally concerned with revealing or defending culpability. The purpose of an inquest is, rather, to investigate the facts in order to answer four questions: who the deceased was and where, when and how the deceased came by his or her death (section 5(1) of the 2009 Act). The ‘how’ question is not an unfettered probe by the Coroner into all of the facts surrounding a death, it is “a more limited question directed to the means by which the deceased came by his death” (R v HM Coroner for North Humberside and Scunthorpe ex parte Jamieson [1995] QB 1, 26). However, if Article 2 of the European Convention of Human Rights (“ECHR”) is engaged, the ‘how’ question is expanded to consider the circumstances in which the deceased came by his or her death (section 5(2) of the 2009 Act).

What is perhaps more uncomfortable for civil lawyers is the fact that the ambit of the Coroner’s investigation and inquest is determined not by the IPs, but by the Coroner. The information gained during the investigation and the way in which that information is used and distributed is a matter for the Coroner (rules 13-15 of the 2013 Rules). Further, the Coroner will determine the witnesses to the inquest, as well as how they will give their evidence, and then take the lead on questioning (rules 19, 21 and 23 of the 2013 Rules).

Although the Coroner has the leading role in the investigation and inquest, that is not to say that the representatives of IPs have no part to play. As we will discuss, representatives can play a key part in shaping the fact-finding exercise.

The Pre-Inquest Review

Once an inquest is required, the chances are the first time you will be called upon to attend the Coroner’s Court is to appear at a pre-inquest review (“PIR”) pursuant to rule 6 of the 2013 Rules and Chief Coroner’s Guidance No. 22). So, what is a PIR and what do you do?

A PIR is a procedural hearing, usually in more complex cases with a multiplicity of potential IPs and/or difficult issues of causation, at which the Coroner is likely to want to deal with:

• the appropriate IPs;
• disclosure of documents;
• the scope of the inquest;
• whether Article 2 ECHR is engaged;
• whether a jury is required;
• witnesses;
• expert evidence; and
• length of hearing.

Ahead of the PIR, the Coroner will probably circulate an agenda identifying a non-exhaustive list of pertinent matters and, depending on the jurisdiction, a bundle of documents. Depending upon whom one acts for, at the very least you may have:

• a report from a pathologist (most often an histopathologist rather than a forensic pathologist);
• a report from a toxicologist; and
• police statements.

Depending upon the location of the death there may already also be statements from those who were involved in the treatment, detention or employment of the deceased.

Therefore, subject to the limits of the information at your disposal, at the PIR you need to be ready to deal with the matters on the agenda and to address what you consider pertinent to the issues that affect your client.

The following issues often arise at PIR:

• Are there other IPs/witnesses mentioned by job title or (usually redacted) name? Do not assume that all relevant IPs/witnesses have already been identified.
• Are there other relevant documents which ought to be obtained and disclosed? Again, do not assume that all relevant documents have been disclosed or have been passed on to/from the Coroner.
• If the deceased died in a nursing home, has the Coroner been provided with the reports from the CQC? Even though these are available online, their contents may be material to questions regarding standards in the home prior to the death.
• Has the CQC been identified as an IP and, if not, should it be?
• If the deceased died in hospital, has the Coroner been provided with any internal review document/incident report and the statements/records upon which that review was based?
• Is the appropriate healthcare trust an IP? This is particularly important in cases where those with mental health needs may have moved from hospital to community or specialist mental health units, as that is likely to involve different organisations.
• If the deceased died either on the cusp of, or in, police custody, is the Independent Office for Police Conduct conducting an investigation? Is it an IP?
• Are you content with the Coroner’s preliminary views on which witnesses should be called or whose evidence should be read pursuant to rule 23 of the 2013 Rules? Have you marshalled your arguments as to why you say live evidence needs to be heard in relation to the four questions?
• Is there a need for expert evidence on issues of concern to the Coroner? These can be issues relating to the medical cause of death, the care provided to the deceased, causation or preventing future deaths.
• If a state actor is involved, is it a case in which they could be said to have been on notice of a real and immediate risk to life so as to engage Article 2 ECHR?
• Is the case one of the exceptions to the presumption in section 7 of the 2009 Act that the inquest will be heard without a jury?

At what is often the first of a number of PIRs, the whole picture may not yet be apparent. However, one can see from the nature of the issues outlined above that the decisions made by the Coroner at this stage may well have a lasting, and significant, effect upon the inquest and the conclusion reached.

Your client will inevitably have an underlying desire either to expand or to limit the evidence that the Coroner will consider. The PIR therefore presents a vital opportunity for you to assist, and to persuade, the Coroner in determining how wide, or narrow, the investigatory net is cast. Moreover, in circumstances where there are potential background proceedings, the submissions you make at the PIR about the evidence that you will, in due course, be able to preview may well be crucial to those proceedings.

A Practical Side-Note

At this point, it is worth reflecting upon another aspect of the uniqueness of the coronial jurisdiction: bear in mind that, for the average Coroner’s service, inquests represent only a small fraction of the role of the Coroner.

Coroners, and particularly their officers (the latter rarely being legally trained and often hard-pressed), welcome input from those who are involved in a case and are able to anticipate what is required. From the officers’ perspective, bear in mind that your case is just one of many which they are required to handle alongside countless telephone calls from anxious family members who want to know when the death certificate will be ready or when the body will be released as there is a funeral booked.

Therefore, if you have relevant information in documentary form, or can prepare witness statements with exhibits from those you know are likely to assist the Coroner in answering the four questions, you may well assist the Coroner in expediting the hearing.

Bear in mind, too, that Coroners are under pressure to resolve inquests quickly: the law requires an interval of no more than six months from death to inquest, subject to a long-stop of twelve months (see rule 8 of the 2013 Rules and regulation 26 of the 2013 Regulations).

Similarly, if you represent a large organisation, Coroners with limited administrative support will likely welcome the preparation of hearing and/or jury bundles.

The Inquest Itself

As discussed above, the Coroner takes the leading role at the inquest. In those circumstances, and again in contrast to adversarial litigation, the following quotation from R v HM Coroner for Inner North London ex parte Cohen (1994) 158 JP 644 should be borne in mind:

“… the coroner is the prime inquisitor. He cannot fairly excuse a failure on his part to ask questions that require to be asked by saying that [the interested party] was represented by counsel who could have asked the questions.”

Thus, whereas in adversarial litigation there is no duty on the judge to explore a point not dealt with by a party, the Coroner is under a duty to explore points that are relevant to the four statutory questions.

In this regard, the Coroner will already have decided whether witnesses are to give oral evidence or whether their statements will simply be read. The witnesses will be questioned first by the Coroner, then by any IPs and then by their own representative if they are represented (rule 21 of the 2013 Rules).

Questioning is likely to focus in particular on ‘how’ the deceased came by his or her death. But, importantly, it must not go so far as to ask ‘why’ the death occurred. For the representative it is essential, perhaps more so than in any other jurisdiction, to ensure that the evidence aired in public at an inquest is everything which ought to be aired but no more.

On the one hand, with one’s own witness, it is incumbent upon the advocate to maintain a watchful eye over anyone engaged in an illegitimate fishing expedition on behalf of a potential litigant and ensure that questions relating to ‘how’ the deceased came by their death do not stray into ‘why’. Coroners are alive to this and are often at pains to point out the scope of the jurisdiction. If evidence strays too far towards culpability then it may be beyond the scope of the inquest and the Coroner may not allow it.

On the other hand, even though an inquest is not strictly the forum in which to test the evidence of a potential defendant, the role of the advocate is to explore ‘how’ the deceased came by their death to the limits that a Coroner will permit. One must carefully tread that line: a Coroner must disallow any question put to a witness which she considers irrelevant (rule 19(2) of the 2013 Rules) and one should therefore be careful not to alienate a Coroner and potentially to truncate an otherwise legitimate line of questioning.

Striking a balance can be difficult, and this gives rise to an important tactical point. Often less is more at an inquest. It can be a misstep to ask too much or push a witness too far. Not only may it alienate the Coroner as above, but unfavourable evidence could be elicited. There is a judgement call to be made. It is often as much about what is not asked or said as what is asked or said.

Conclusion

For all of these reasons, inquests are unique not only in their make-up and process but in their opportunity. As well as providing a form of pre-action disclosure (as to which, see regulation 27(2) of the 2013 Regulations), they allow witnesses who may well be central to an underlying civil claim to be questioned, as a type of dress-rehearsal, prior to a civil trial. The answers given at an inquest may well ultimately curtail the issues which will need to be determined in the civil case or, in some circumstances, entirely obviate the need for proceedings to be issued at all. In this connection, see Rogers v Hoyle [2015] QB 265 both at first instance, at [100] per Leggatt J, and on appeal, at [39]-[40] per Christopher Clarke LJ, as to the status of evidence heard at an inquest in subsequent proceedings.

Ultimately, advocacy at inquests, and the involvement of representatives in the investigation and inquest process (especially, we suggest, at the PIR stage), is much more important than one might appreciate from a first-glance analysis of the reigning role of the Coroner.