Coroners are focusing increasingly on health and safety procedures, training and risk management when carrying out inquests into workplace deaths. Colin Moore and Fiona Gill report on the impact of recent changes on their investigations.
The office of coroner was established in the 12th century, so why are inquests newsworthy 800 years later? As the title implies, it’s all about change. Coroners have wide powers and traditionally it has been difficult to discern a consistent approach to inquest management. However, changes came in to force in July 2013 with the aim of standardising the coronial system and giving parties to an inquest a better understanding of both a coroner’s powers and their rights.
Readers might question the relevance of an article on inquests to health and safety professionals. The reality is that, since well before 2013, inquests into some deaths in the workplace and in care have seen coroners increasingly explore issues, including health and safety procedures, training and risk management.
An inquest will often include a detailed consideration of documents and witness evidence, meaning it becomes a dry run for prosecutions or civil claims. With this in mind, HSE generally waits for inquests to conclude before commencing prosecutions. This allows it to preview the way a jury may interpret documents, react to particular witnesses and gain a steer about which evidence provides the strongest grounds for proving an offence.
So, as the new rules approach their second anniversary it is worth considering what was supposed to have changed, what has actually happened and what this means for those involved in risk management.
The important changes in 2013 included:
Timescales
Completing an inquest within six months is often achievable in simpler cases and there is statistical support for this timescale; in the five years prior to 2013 the average time between a death and an inquest ranged from 26 to 28 weeks. However, inquests involving multiple parties, complex or extensive evidence still take much longer to conclude, particularly when juries are required.
On balance, there has been little obvious change and it remains to be seen what positive steps will be taken by the chief coroner to ensure that the target timescale becomes universal rather than aspirational.
Coroners’ investigations
Coroners used to rely on the Police or HSE to gather evidence and present them with a report, but since 2013 they are increasingly driving forward the investigation process themselves by identifying relevant witnesses and documents or highlighting issues, which may be relevant to the inquest.
In practice, this means that interested parties like employers or healthcare providers can face early requests for the production of evidence. These can complicate responses to concurrent investigations by the Police, HSE or other regulators. Organisations need to make sure they record exactly what is being given to a coroner and consider whether any individuals require legal advice about providing statements, which could lead to prejudice or self-incrimination in other proceedings.
Case management and disclosure
Coroners are increasingly engaged in case management before inquests through pre inquest reviews (PIRs). While there is nothing new about these hearings, they are becoming the norm, even in less complex cases because coroners need to consider their new disclosure duties.
Coroners now have a prescriptive guide to the categories of documents, which should be disclosed to interested parties. This includes post mortem and other reports that have been provided to the coroner during their investigation, such as experts’ reports or evidence from the Police, HSE or any other regulators. In the past, HSE was reluctant to divulge reports in order not to prejudice later proceedings. So the new rules potentially provide a helpful tool to find out early on what conclusions have been reached in other investigations.
Beware though; the coroner’s duty to disclose can be a double-edged sword. Given their wider powers to obtain evidence during an investigation, interested parties need to try to control the disclosure of sensitive or incriminating evidence by the coroner. The best way to achieve this is to ask the coroner, before a PIR, for an index of their proposed disclosure and a list of potential issues for the inquest so that you can make submissions before other interested parties see the evidence.
PIRs can also provide a vital opportunity for an interested party to influence the scope of the inquest. In a minority of cases (usually involving the death of persons detained by the state) Article II of the European Convention on Human Rights will be invoked by the coroner or an interested party so that the inquiry is widened.
Problems increasingly arise when, even in non-Article II cases, the scope of issues coroners are willing to investigate include an examination of the facts leading up to a death and the roles of individuals and organisations in it. This is helpful for prosecutors because prejudicial conclusions may be reached at the inquest on issues such as the identification of duty-holders and compliance with health and safety duties. As an interested party, your best answer to this is to challenge the relevance of these issues to the narrow topics an inquest is supposed to cover (how, why and when the deceased came by their death) and to remind the coroner that those matters are best left to other legal proceedings.
PFD reports
Figures from the chief coroner’s office show that between April and September 2013, 244 PFD reports were issued, the largest number recorded in any six-month period. This reflects our experience in practice where PFD reports are becoming more commonplace, particularly in cases involving deaths in hospitals or in care.
The new rules allow coroners to request responses to PFD reports during investigations, i.e. well before an inquest, and they can be published on the chief coroner’s website, with the potential for reputational harm and prejudice to future legal proceedings.
PFD reports are best avoided, and interested parties should consider how much information they can disclose in order to convince a coroner against making one (usually by showing that safety issues have been remedied). This has to be balanced against the risk that changes put in place after a fatal accident could be interpreted by a prosecutor as evidence of previous deficiencies. A response requires careful consideration, given the legal and reputational implications, and will need to demonstrate that any improvement simply enhances a safety measure that already met required standards.
Over the coming years we will better understand whether the 2013 changes are meeting the aim of providing a consistent and quicker approach to investigations and inquests. What we can say at this stage is that the changes have facilitated the trend towards more complex, lengthy and costly inquests, creating uncertainty for individuals and disruption to organisations. It therefore remains vital for safety and health professionals to understand the implications of a coroner’s investigation and to seek advice as soon as possible following a death.
Colin Moore is an associate and Fiona Gill, a partner, in the safety, health & environment group at international law firm DAC Beachcroft.
Quote: “As an interested party, your best answer to this is to challenge the relevance of these issues to the narrow topics an inquest is supposed to cover (how, why and when the deceased came by their death) and to remind the coroner that those matters are best left to other legal proceedings.” Can I ask who you think the “interested party” is who is being advised? The assumption must be that only employers read SHP! As I understand it, the correct terminology is “properly interested person”; the rights of PIP’s have been established for longer than the two years… Read more »