Copyright Notice, Limited Permissions, and Disclaimers
Chapter 12: Procedure at the Inquest
The material formerly found here is now contained in the first supplement to Jervis, published by Sweet & Maxwell in November 2003, with ISBN 0 421 858 907.
12-47 n 30 English v Emery Reinbold & Strick Ltd is now reported at [2002] 1 WLR 2409; add Burns v Royal Mail Group plc (No 2), The Times, 24 June 2004, EAT.
12-83 n 41 See also R v B, 24 June 2004, CA Criminal Division.
12-91 In R (Middleton) v West Somerset Coroner [2004] UKHL 10, the House of Lords gave detailed guidance for the conduct in future of inquests into deaths in custody where art 2 is engaged. This included the following points:
"The conclusion is inescapable that there are some cases in which the current regime for conducting inquests in England and Wales, as hitherto understood and followed, does not meet the requirements of the Convention." (para 32)
"35. Only one change is in our opinion needed [to secure compliance with the Convention]: to interpret 'how' in section 11(5)(b)(ii) of the Act and rule 36(1)(b) of the Rules in the broader sense previously rejected, namely as meaning not simply 'by what means' but 'by what means and in what circumstances'.
36. This will not require a change of approach in some cases, where a traditional short form verdict will be quite satisfactory, but it will call for a change of approach in others (paragraphs 30-31 above). In the latter class of case it must be for the coroner, in the exercise of his discretion, to decide how best, in the particular case, to elicit the jury's conclusion on the central issue or issues. This may be done by inviting a form of verdict expanded beyond those suggested in form 22 of Schedule 4 to the Rules. It may be done, and has (even if very rarely) been done, by inviting a narrative form of verdict in which the jury's factual conclusions are briefly summarised. It may be done by inviting the jury's answer to factual questions put by the coroner. If the coroner invites either a narrative verdict or answers to questions, he may find it helpful to direct the jury with reference to some of the matters to which a sheriff will have regard in making his determination under section 6 of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976: where and when the death took place; the cause or causes of such death; the defects in the system which contributed to the death; and any other factors which are relevant to the circumstances of the death. It would be open to parties appearing or represented at the inquest to make submissions to the coroner on the means of eliciting the jury's factual conclusions and on any questions to be put, but the choice must be that of the coroner and his decision should not be disturbed by the courts unless strong grounds are shown.
37. The prohibition in rule 36(2) of the expression of opinion on matters not comprised within sub-rule (1) must continue to be respected. But it must be read with reference to the broader interpretation of 'how' in section 11(5)(b)(ii) and rule 36(1) and does not preclude conclusions of fact as opposed to expressions of opinion. However the jury's factual conclusion is conveyed, rule 42 should not be infringed. Thus there must be no finding of criminal liability on the part of a named person. Nor must the verdict appear to determine any question of civil liability. Acts or omissions may be recorded, but expressions suggestive of civil liability, in particular 'neglect' or 'carelessness' and related expressions, should be avoided. Self-neglect and neglect should continue to be treated as terms of art. A verdict such as that suggested in paragraph 45 below ('The deceased took his own life, in part because the risk of his doing so was not recognised and appropriate precautions were not taken to prevent him doing so') embodies a judgmental conclusion of a factual nature, directly relating to the circumstances of the death. It does not identify any individual nor does it address any issue of criminal or civil liability. It does not therefore infringe either rule 36(2) or rule 42.
38. The power of juries to attach riders of censure or blame was abolished on the recommendation of the Report of the Departmental Committee on Coroners under the chairmanship of Lord Wright (Cmd 5070, 1936). It has not been reintroduced. Juries do not enjoy the power conferred on Scottish sheriffs by the 1976 Act to determine the reasonable precautions, if any, whereby the death might have been avoided (section 6(1)(c)). Under the 1984 Rules, the power is reserved to the coroner to make an appropriate report where he believes that action should be taken to prevent the recurrence of fatalities similar to that in respect of which the inquest is being held. Compliance with the Convention does not require that this power be exercisable by the jury, although a coroner's exercise of it may well be influenced by the factual conclusions of the jury. In England and Wales, as in Scotland, the making of recommendations is entrusted to an experienced professional, not a jury. In the ordinary way, the procedural obligation under article 2 will be most effectively discharged if the coroner announces publicly not only his intention to report any matter but also the substance of the report, neutrally expressed, which he intends to make."
12-92 The decision of the Court of Appeal in R (Sacker) v West Yorkshire Coroner [2003] 3 All ER 278 was affirmed by the House of Lords: [2004] UKHL 11, 11 March 2004, though on different grounds.
12-93 - 12-94 In R (Davies) v Birmingham Deputy Coroner [2003] EWCA Civ 1739, Brooke LJ said (at para 49):
"It is obvious that the law is in an unsettled state, and I am conscious of the anxieties expressed about the decision in Middleton not only by Pill LJ [in Sacker] but also by the editor of Jervis on Coroners (12th Edition, 2003) at paras 12.93 – 12.94 and 13.44."
He went on to say (at paras 51, 53):
"51. What the court in Middleton was anxious to achieve was the possibility of an inquest jury being able to enter a verdict which included a finding of systemic neglect in a broader range of circumstances than those contemplated by the approach laid down in Jamieson's case, provided that no individual was named, if there was realistically no other way in which this country in the present state of the law might fulfil its Article 2 procedural obligations. The facts disclosed at the inquest might lead, as has often happened in the past, to charges of negligence being made in the civil courts. What this court decided was that a finding by a coroner's jury of systemic neglect did not determine any question of civil liability. It was therefore permissible notwithstanding Rule 42.
[ ... ]
53. It follows from all this that as the law now stands:
(i) There must be a full and effective inquiry into the death at the coroner's inquest if this is realistically the only occasion on which the state will perform its procedural duty;
(ii) It is open to a jury to return a verdict incorporating a finding of neglect in a broader range of circumstances than those contemplated by the approach laid down in Jamieson's case if the verdict relates to systemic neglect;
(iii) A letter written by a coroner pursuant to Rule 43 is not an adequate substitute, for Article 2 purposes, for a verdict by the jury in cases where a verdict of neglect is available on the evidence."
The decision of the Court of Appeal in R (Middleton) v West Somerset Coroner was technically reversed by the House of Lords on 11 March 2004: [2004] UKHL 10. The House gave detailed guidance for the conduct in future of inquests into deaths in custody where art 2 is engaged. This included the following points:
"To meet the procedural requirement of article 2 an inquest ought ordinarily to culminate in an expression, however brief, of the jury's conclusion on the disputed factual issues at the heart of the case." (para 20)
"The conclusion is inescapable that there are some cases in which the current regime for conducting inquests in England and Wales, as hitherto understood and followed, does not meet the requirements of the Convention." (para 32)
"35. Only one change is in our opinion needed [to secure compliance with the Convention]: to interpret 'how' in section 11(5)(b)(ii) of the Act and rule 36(1)(b) of the Rules in the broader sense previously rejected, namely as meaning not simply 'by what means' but 'by what means and in what circumstances'.
36. This will not require a change of approach in some cases, where a traditional short form verdict will be quite satisfactory, but it will call for a change of approach in others (paragraphs 30-31 above). In the latter class of case it must be for the coroner, in the exercise of his discretion, to decide how best, in the particular case, to elicit the jury's conclusion on the central issue or issues. This may be done by inviting a form of verdict expanded beyond those suggested in form 22 of Schedule 4 to the Rules. It may be done, and has (even if very rarely) been done, by inviting a narrative form of verdict in which the jury's factual conclusions are briefly summarised. It may be done by inviting the jury's answer to factual questions put by the coroner. If the coroner invites either a narrative verdict or answers to questions, he may find it helpful to direct the jury with reference to some of the matters to which a sheriff will have regard in making his determination under section 6 of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976: where and when the death took place; the cause or causes of such death; the defects in the system which contributed to the death; and any other factors which are relevant to the circumstances of the death. It would be open to parties appearing or represented at the inquest to make submissions to the coroner on the means of eliciting the jury's factual conclusions and on any questions to be put, but the choice must be that of the coroner and his decision should not be disturbed by the courts unless strong grounds are shown.
37. The prohibition in rule 36(2) of the expression of opinion on matters not comprised within sub-rule (1) must continue to be respected. But it must be read with reference to the broader interpretation of 'how' in section 11(5)(b)(ii) and rule 36(1) and does not preclude conclusions of fact as opposed to expressions of opinion. However the jury's factual conclusion is conveyed, rule 42 should not be infringed. Thus there must be no finding of criminal liability on the part of a named person. Nor must the verdict appear to determine any question of civil liability. Acts or omissions may be recorded, but expressions suggestive of civil liability, in particular 'neglect' or 'carelessness' and related expressions, should be avoided. Self-neglect and neglect should continue to be treated as terms of art. A verdict such as that suggested in paragraph 45 below ('The deceased took his own life, in part because the risk of his doing so was not recognised and appropriate precautions were not taken to prevent him doing so') embodies a judgmental conclusion of a factual nature, directly relating to the circumstances of the death. It does not identify any individual nor does it address any issue of criminal or civil liability. It does not therefore infringe either rule 36(2) or rule 42.
38. The power of juries to attach riders of censure or blame was abolished on the recommendation of the Report of the Departmental Committee on Coroners under the chairmanship of Lord Wright (Cmd 5070, 1936). It has not been reintroduced. Juries do not enjoy the power conferred on Scottish sheriffs by the 1976 Act to determine the reasonable precautions, if any, whereby the death might have been avoided (section 6(1)(c)). Under the 1984 Rules, the power is reserved to the coroner to make an appropriate report where he believes that action should be taken to prevent the recurrence of fatalities similar to that in respect of which the inquest is being held. Compliance with the Convention does not require that this power be exercisable by the jury, although a coroner's exercise of it may well be influenced by the factual conclusions of the jury. In England and Wales, as in Scotland, the making of recommendations is entrusted to an experienced professional, not a jury. In the ordinary way, the procedural obligation under article 2 will be most effectively discharged if the coroner announces publicly not only his intention to report any matter but also the substance of the report, neutrally expressed, which he intends to make."
"In the absence of full criminal proceedings, and unless otherwise notified, a coroner should assume that his inquest is the means by which the state will discharge its procedural investigative obligation under article 2. There is force in the criticism made by all parties of the distinction drawn between individual and systemic neglect, since the borderline between the two is indistinct and there will often be some overlap between the two: there are some kinds of individual failing which a sound system may be expected to detect and remedy before harm is done. There will, moreover, be individual failings which need to be identified even though an individual is not to be named. 'Self-neglect' and 'neglect' are terms of art in the law of inquests, and there is no reason to alter their meaning." (para 47)
12-94 On Middleton, see the note to para 12-93.
12-126 n 88 In Three Rivers District Council v Bank of England [2004] EWCA Civ 218, The Times, 3 March 2004, the Court of Appeal held that no privilege could attach to communications between lawyer and client whose dominant purpose was to obtain advice and assistance in relation to the presentation of evidence at a private non-statutory inquiry. They were not covered by privilege, because there was no advice in relation to the Bank's legal rights and obligations, the inquiry was not litigation and no other litigation was anticipated.
In principle the same should apply to a coroner's inquest, albeit that that is a statutory inquiry. Legal rights and liabilities are not determined by an inquest, even though reputation may be affected (as it was said to be in that case). However, the scope of the decision is narrow, in the sense that lawyers will usually be asked to advise not only on presentation at an inquest but more generally on the rights and liabilities of persons arising out of the death concerned, and such advice will normally attract privilege on ordinary principles. Furthermore, there may not be many cases where advice given by a lawyer to a client about presentation at an inquest would be relevant to the purposes of the inquest.
In any event, the House of Lords indicated on 29 July 2004, at the conclusion of the arguments in an appeal in this case, that the appeal would be allowed for reasons to be given at a later date. Accordingly it may well be that the propositions referred to above are no longer good law.
12-137 n 38 See also R (Officer A) v Inner South London Coroner [2004] EWHC 1592 (Admin).
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Last modified: Monday, 09-Aug-2004 08:53:15 BST by: Malcolm Bishop