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November 14, 2012

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Swifter justice – Not before time

Paul Verrico and Kevin Elliott consider the task that faces the recently appointed Chief Coroner and the effect this new role could have on the work of health and safety professionals.

In September, His Honour Judge Peter Thornton QC – who conducted the recent high-profile inquest into the death of Ian Tomlinson at the London G20 protests in 2009 – was appointed to the newly-created role of Chief Coroner. Describing the appointment, the then Justice Secretary, Ken Clarke, highlighted the full range of powers that will be available “to drive up standards. . . and to tackle delays within the system”. The incoming Chief Coroner himself also recognised that “with any ancient and well-respected system there is room for improvement and development”.1

The flaws of the current coronial system are well known to those who have experienced the process. While always more pertinent to families awaiting a verdict the delays, costs and vagaries of the system are now viewed in stark comparison with the current drive in the criminal courts to deliver “fast-track” justice.   

The role of a Chief Coroner had been proposed for many years. The new appointment was eventually made possible by virtue of the changes introduced by the Coroners and Justice Act 2009. Initially, however, the post was not filled; indeed, late last year it appeared as though it might be consigned to history before anyone could take office. In October 2011, the Public Bodies Bill cleared the Commons (which would have abolished the post), with David Cameron commenting: “The current proposal for the Chief Coroner’s office to be established would actually involve something like £10 million of spending and we think the money would be better spent on improving all coroners’ services across the country.”

The announcement of the proposal to scrap the post of Chief Coroner created something of a backlash. In particular, the Royal British Legion campaigned vigorously to save the role, primarily because the post was designed to streamline inquests and make it easier and quicker for families of troops killed in action to find out how they died. In November last year, the Justice Secretary confirmed that the post would not be abolished, commenting: “Over recent months I have listened to and reflected on the concerns raised across Parliament, by families and by other groups, including the Royal British Legion, that a single figure needs to be responsible for the coroner system. I am prepared to have one last try to meet those arguments and so have taken the decision to implement the office of Chief Coroner.”

While the ambit of the new role is very wide, the main responsibilities of the Chief Coroner that will concern readers are as follows:

  • Providing support, leadership and guidance for coroners in England and Wales and setting national standards for all coroners, including new inquest rules;
  • Keeping a register of coroner investigations lasting more than 12 months and taking steps to reduce unnecessary delays; and
  • Monitoring the implementation of recommendations made by coroners following inquests.

Support, leadership and guidance provision

For coroners across England and Wales, there is very little support and guidance offered to them on how to conduct inquests, the witnesses who should be called, and the evidence that should be explored. The purpose of a normal inquest – to establish who died, where they died, when they died, the medical cause of death, and, most importantly, in what circumstances – can be interpreted differently by individual coroners.

The result of this current lack of guidance is that, in practice, inquests with similar fact-patterns can vary significantly in length, involving more or fewer witnesses, and with differing levels of exploration of material issues, depending on the particular coroner involved. That difference in approach can mean a two-day inquest in one part of England and Wales may take two weeks elsewhere.

When looking for guidance from elsewhere, coroners cannot rely on precedents set by other courts, although they may speak with colleagues in other jurisdictions. Each case is dependent on its own facts; there are some well-known cases that assist in possible verdicts, and there are also the Coroners’ Rules 1984, but very little substantive guidance.

The result is that it is often very difficult for legal advisors and organisations involved in an inquest to predict how proceedings will evolve, in terms of time, evidence, publicity and cost. It is hoped that the leadership and guidance to be offered by the Chief Coroner will increase the level of continuity between different jurisdictions and allow coroners to be more robust in their decision-making on certain issues.

Reducing unnecessary delays

Of all the expected changes associated with the new role, it is the proposed changes to the inquest timetable that are awaited with most anticipation. The common complaint about the inquest process is the length of time that can pass between the death and the hearing of the inquest. In some cases, a delay is understandable – for instance, while the coroner awaits the outcome of a Police investigation.

However, there have been delays of five years, or more for the listing of an inquest and this can cause significant problems for health and safety professionals and the organisations they work for, such as:

  • The witnesses’ recollection of events inevitably diminishes over time. Certainly, evidence never gets any better with time. Delays can mean a missed opportunity for the inquest to establish, for example, a precise sequence of events;
  • Record-keeping – Retaining evidence and knowledge for a significant length of time can prove difficult. Customs and practices not recorded on paper will be lost, and recalling them in evidence some years later may prove troublesome. In addition, in a digital age, documents can be deleted, reworded, or changed without thought as to the consequences for future proceedings;
  • Tracking witnesses – Third-party witnesses, such as contractors or members of the public, can often provide very helpful evidence during an inquest. However, months or years after a death, it can be difficult to find individuals, even if contact details were taken at the time. It is the same case for employees, who may move on and not think to provide forwarding addresses, etc. Tracking down crucial witnesses prior to an inquest can therefore prove a significant stumbling block. This issue has been exacerbated in recent times by the employment by many organisations of non-UK nationals, many of whom do not intend to settle permanently in the UK;
  • Emotional strain – While the objective measures of time and cost can be easily appreciated, the emotional strain of the inquest process should not be ignored. Those looking for closure following a workplace death will have to endure the investigation process (whether that involves the HSE, Police or both), followed by any prosecution action, and the inquest itself. An inquest listed some years after a fatality can often re-ignite emotions that had been previously dealt with.

Given these concerns, the impetus placed on the Chief Coroner to speed up the process can only be a good thing.

Monitoring recommendations from inquests

Following the conclusion of an inquest, a coroner may produce a report under Rule 43 of the Coroners’ Rules 1984, with recommendations for action. Such reports will be created when the coroner is of the opinion, having heard evidence in an inquest, that there is a risk that future deaths may occur. The report should be sent to the party, or parties who the coroner considers can effect the changes, and a written response must be provided by them, explaining the details of any actions taken, or reasons why no action is proposed.

The respondent normally has 56 days to respond to a Rule 43 report. It appears that the Chief Coroner will now have a role overseeing the implementation of recommendations made in such reports. This is an important change for employing organisations, as it makes the need to formulate a proper response to a Rule 43 report even more pertinent. Coroners, who may simply be too stretched to consider Rule-43 responses in any real detail, will now be supported via the additional scrutiny of the Chief Coroner.

Changes that did not make it

In early discussions surrounding the new role, there were proposals for the Chief Coroner to hear appeals where a party was unhappy with an inquest verdict. This responsibility has been removed from the finalised job description and the only option for parties seeking redress is to apply for judicial review. This is a costly procedure, which means, in practice, it is very rarely used for parties seeking redress. It is therefore regrettable that the Chief Coroner does not have an appellate function. 

Remaining reservations

The changes have been introduced to address some of the criticisms aimed at and problems inherent in the current coronial system, such as delay and inconsistencies in decision-making. However, many of the problems with the current system cannot be blamed on the powers of coroners, or even the lack of a centralised figurehead.

Delays in the listing of inquests are often caused by ongoing investigations, issues with witness availability, medical reports, jury availability, and also the availability of the court and the coroner to hear an inquest. The influence of ‘Properly Interested Persons’ can also deter an inquest from running along a smooth course. While inquests should not be adversarial, the wider implications of an inquest verdict, in terms of health and safety prosecutions and media attention, can often mean that some parties attend with their own agenda.

In addition, harking back to the history of coroners, the unique nature of every case that comes before a coroner (while certain facts may be similar) means that he or she should have the liberty to explore the matter as they see fit, to identify any wrongdoing, and to appease a grieving family. Any attempt to restrain a well-intentioned coroner risks undermining a process that has worked for centuries, albeit with some delay.

There has been no mention of the powers available to the Chief Coroner in the event he is aggrieved as to the actions of a coroner, or other party. It therefore remains to be seen whether the role will be anything other than a figurehead. Many of the problems associated with the coronial system, and experienced by health and safety professionals, are caused by a lack of proper resource for coroners and their officers. It would appear that, despite the upcoming changes, this issue remains.    

References
1    www.judiciary.gov.uk/about-the-judiciary/the-chief-coroner

Paul Verrico and Kevin Elliott are solicitors at Eversheds.

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