Reform of the coroner system - next stage Preparing for implementation
Response from Thompsons Solicitors – JULY 2010
Thompsons is the UK's most experienced trade union and personal injury law firm. It has a network of offices across the UK, including in the separate legal jurisdictions of Scotland and Northern Ireland.
Thompsons has represented families in many major tragedies such as Hillsborough, Piper Alpha, Kings Cross and Ladbroke Grove. The firm also acts on behalf of families of individuals killed in workplace accidents and regularly represents families who have lost members due to industrial diseases such as Mesothelioma and pneumoconiosis.
The firm is involved in around 50 inquests a year either on behalf of the family of the victim of a workplace fatality or by acting for a union member who, as an employee, was associated with an incident that led to a death.
We gave evidence to the Department of Work and Pensions and Home Affairs select committee on the Corporate Manslaughter Bill and have responded to all the consultation papers dealing with coroner reform.
Response to questions
We have no comments to make on questions 1 to 8.
Question 9. What do respondents consider to be the purpose of a coroner commissioned post-mortem examination?
The purpose is to establish the cause of death.
Question 10. In addition to ensuring greater consistency in the commissioning of post-mortem examinations, how may the number of post-mortem examinations be reduced?
We have no comment.
Question 11. Should consultation with the relevant next of kin about the examination occur, as a matter of best practice, before the examination takes place (except in cases of suspected homicide)?
Question 12. Where it has not been possible, for whatever reason, to obtain such consent, how should matters relating to tissue retention be dealt with? Does the current ‘3-month rule’ work in practice? Should the 3 months begin from the date of the conclusion of the examination?
Yes it should.
Questions 14 to 16
We have no comment
Question 17. Who do coroners envisage carrying out these functions on their behalf? Do coroners envisage delegating this task to coroner’s officers, the police, or someone else entirely? Who do other consultees feel should carry out this task on behalf of the coroner? Who do you think would be suitably qualified to carry out this task on behalf of coroners?
Only the police or, in workplace death cases, the HSE are suitably qualified to carry out these functions. They already have the powers to do so.
Question 18. Should the person entering, searching and seizing have in their possession, in every circumstance, some form of documentation stating their authority to be on the land or premises and to remove items and documents?
Clearly there should be a formal warrant issued by the coroner.
Question 19. We propose that the procedure for obtaining permission to carry out a search, and the process for carrying out search and seizure, should where possible, mirror the process used by the police in accordance with the Police and Criminal Evidence Act 1984. This could be achieved by way of a code of practice, as was proposed during Parliamentary debates on this issue. Do you consider this approach is appropriate?
Question 20. Do you have views on the other aspects of the proposed procedure for entry search and seizure set out in Chapter 4?
Question 21. In normal circumstances, should some form of notice be given to the landowner/occupier that entry, search and seizure is to be undertaken? Is 48 hours a suitable period of notice?
Question 22. Do you agree that we have captured the right principles and struck a proper balance between those which compete?
There is a lack of consistency in the approach different coroners take to the disclosure of documents. The principle should be that all interested parties and their representatives should have the right to see all documents that go before an inquest. Documents should be disclosed for no, or only a minimal fee. The coroner should have the power to waive a fee or determine a minimal charge.
It is not possible for an interested party, particularly family members, to ask relevant questions and play a full role at an inquest without seeing all documents. While coroners should have discretion as to whether documents can be disclosed, disclosure should be as full as possible, restricted only in justifiable exceptional circumstances such as if disclosure would prejudice a criminal prosecution.
Consistency in the approach by coroners around the country must also be a fundamental principle of coroner court reform. Thompsons was recently refused the right to see a health and safety engineer’s report, the type of document that would be routinely disclosed by coroners in other regions.
Question 23. Should we permit requests to be made at any stage in a coroner’s investigation? If so, how long should coroners be given to respond to requests, in order to not delay investigations, but to provide them with workable timescales?
It is difficult to specify how long coroners should have to respond to requests, but the objective should be disclosure in good time so that interested parties, in particular family members and their representatives can consider all the relevant issues.
As part of the investigative process, the parties should be invited to identify the documents that should be disclosed and are relevant for the coroner to consider. In corporate manslaughter cases these might include company memos and minutes.
Any fears that a coroner may have about the use of documents may be allayed by giving them the right to disclose documents on the basis that they are clearly restricted to use only in the inquest.
Question 24. What do you expect the level of take-up to be of the Charter for the Bereaved’s provision for information to be disclosed to bereaved people, free of charge? How would it compare to current requests?
If information is disclosed to bereaved people as soon as a coroner notifies that there will be an inquest then there will be take up.
Question 25. Are there any circumstances where bereaved people should pay for disclosure of material?
The principle should be that material is disclosed free of charge. A coroner may, in exceptional circumstances, set a minimal fee.
Question 26. What would the impact be on coroners and their staff of disclosing information free of charge, to bereaved people and possibly to other interested persons? What would the costs be and how would those costs be comprised?
We do not entirely understand what is meant by “and their staff” but we assume this is a reference to the work they would be required to do. The impact of not disclosing information free of charge should be the consideration. There is little point in a charter unless everyone can benefit from it.
Question 27. We do not propose that interested persons should have all disclosable material provided to them automatically, or that if one interested person requests disclosure it should be automatically sent to all others. We propose instead that they should be made aware that they are entitled to request the information. It will be a matter for them as to whether they make the request, including in relation to assisting with an appeal application. Do you agree with this approach? If not, please suggest an alternative.
We agree with this approach if advice leaflets are provided to all interested parties setting out, in plain English and translated into community languages, their entitlement to request information and the process for doing so. The leaflet should also be available on the Coroners Court website.
We also encourage the use of pre-inquest hearings which provide the opportunity for parties to learn what documents are available and to request the documents that they need.
Question 28. What level of requests for information from other interested persons would you expect to see, and why?
The level of requests would depend on the particular interest of the party. Thompsons’ interest is in workplace accidents and occupational diseases. We would want to see accident investigation documents, accident reports and internal company documents, all but the most straightforward of which could be subject to applications at pre-inquest hearings.
Question 29. How common is charging for disclosure in practice at present? Should we specify the circumstances in which a coroner can charge?
The circumstances should be on the same basis as when access to medical records is requested. There may be a fixed charge for a transcript, for example. But a coroner should be able to use their discretion to waive fees or make minimal charges according to the circumstances.
Question 30. What levels of fees should be payable?
A minimal fixed fee should apply.
Question 31. To whom should the fee be paid? If paid to a coroner’s office, should the fee be passed on to the relevant local authority?
This is a matter for the coroner to agree with the local authority. The failure to adequately address the funding of coroners courts is, in our view, a major failing of the Coroners and Justice Act and will lead to inconsistency in the conduct of inquests.
Coroners courts are courts of enquiry and so they should be funded in the same way as the rest of the court system, with budgets set according to need to enable consistency of service, including facilities.
Question 32. Once an investigation is completed, should we specify a time limit for obligation for requests to a coroner to disclose information – e.g. 6 months/a year after the conclusion of the investigation – so that, after a certain period, a coroner will have discretion to refuse a request for information?
No. Coroners courts do not and should not work in that way. There are many factors which could lead to a request being made some time after the conclusion of an investigation. A separate HSE investigation, for example, may take longer to conclude. The principle should be that if an interested party needs a document they should be given it, within reason.
Question 33. Should a formal requirement for the opening of an inquest be retained?
Yes it should be retained. The coroner may only make a simple opening, but there may be issues that need to be raised at that stage. Interested parties need to know that an inquest is formally open and the bereaved need the reassurance of knowing the process of identifying the cause of their loved one’s death has started.
Question 34. Should there be a formal requirement for an inquest, when relevant, to be held as soon as possible after the death?
There should, but the need for other investigating bodies such as the HSE to conclude their investigations must be taken into account.
Question 35. Should the procedures for summoning witnesses be put on a more formal footing, in similar terms to those regarding the summoning of jurors, for example?
They should. Coroners need to be able to summon witnesses and those witnesses should be subject to the same penalties for non attendance as would be imposed by other courts.
Thompsons was recently involved in an inquest involving a workplace death where the company directors did not attend court because they were concerned about recriminations and prejudicing any prosecution. In our view it was unacceptable that they were able to avoid attending the inquest and being called to give evidence because of the lack of formality and penalties.
It was also hugely hurtful to the family of the deceased.
A court would not allow and employee such as a nurse or midwife who is accused of causing the death of a patient to not turn up.
Question 36. Should the circumstances when vulnerable or potentially vulnerable witnesses are to be granted special measures while giving evidence be put on a formal basis?
Yes, special measures should be granted in the same way that they are in other courts.
Question 37. In what circumstances do consultees think coroners should exercise powers to withhold names or other matters?
The withholding of names should be possible in exceptional circumstances only and should be open to challenge to the chief coroner by way of application.
Question 38. Should there be a formal basis for coroners to accept unsworn evidence at inquests?
Question 39. Should the position on admissibility of documentary evidence be extended or clarified?
If it is a relevant document then it should be admissible.
Question 40. Is there an argument for retaining or reducing the requirement for documents to be kept for 15 years as is the case at present – particularly in view of the new appeal arrangements against coroners’ decisions which the Act establishes?
There should be no change to the length of time documents are kept. Some documents can often prove to be relevant many years after the original inquest. Thompsons found this to be the case when working on the various train crash inquiries, when evidence of a history of neglect was vital.
Question 41. Should a new list of short form determinations be established; and if so, what should the categories be?
No. We believe that short form verdicts are not appropriate and that the public interest requires there to be a narrative verdict. There should always be a narrative verdict in work-related deaths. Only in exceptional cases, an asbestos-related death or the death of a former coal miner due to industrial disease for example, where exposure was too long ago to be able to determine the source of the exposure, is a short form determination acceptable. However, a narrative verdict is still desirable in these circumstances and should be able to reflect the difficulty in determining the source of exposure.
Question 42. Should coroners be required to return a narrative determination in any case where they are unable to attribute one of these determinations?
As stated above, there should always be a narrative determination. The family and the public expect it. In some circumstances the narrative will reflect the inability to determine the source of exposure. While it may not be possible to be precise about the source of exposure, the verdict should still refer to it.
Question 43. Should the rules contain something on the availability and use of narrative determinations, and if so, what?
Yes. They should say that a narrative determination should be the norm and that a coroner who declines to give one must provide their reasons. This is in line with the decision in Middleton.
Question 44. We would welcome comments from respondents on any of the issues contained within the Coroners Rules 1984 that are likely, in substance, to be replicated in the new rules.
We have no comment.
Question 45. Are there any other areas where respondents suggest the Chief Coroner may consider issuing guidance in relation to the administration and conduct of inquests?
Yes. The Chief Coroner should consider issuing guidance on the administration and conduct of inquests into work-related deaths, particularly where there may be an HSE and/or police investigation and where there may be a prosecution under the Corporate Manslaughter and Corporate Homicide Act.
In such circumstances the Chief Coroner should, for example, consider issuing guidance into access to documents and what type of documents should be requested.
Question 46. Do you agree that the person who wishes to appeal must complete a notice of appeal in order for the Chief Coroner to consider the appeal?
We agree. There must be a procedure for appeals.
Question 47. Do you agree that the notice of appeal should include a declaration that an attempt has been made to resolve the matter informally directly with the coroner of his office. If so, should this also apply where an appeal is about a post-mortem and therefore must be made within a very short timescale?
No. The chief coroner should be responsible for referring the matter back to be determined informally at a local level, but the parties involved should not have to be responsible for trying to resolve it informally before lodging an appeal. Coroners are not equipped to deal with such a process.
Question 48. Do you agree that the Chief Coroner may disregard an appeal if he or she decides the appeal is vexatious or frivolous, and must document his or her reasons for doing so?
Question 49. Do you agree that the Chief Coroner will determine the method of considering the appeal – i.e. whether there should be a paper or oral hearing?
Question 50. Do you agree the proposed timescales set out for lodging appeals and for the Chief Coroner to rule on appeals?
We agree with the proposed timescales.
Question 51. Do you agree with the content of the tables for training of coroners, their officers and staff? Is there anything missing?
We agree with the content.
Question 52. Should only some training be compulsory – if so what – e.g. induction training? Why?
All training should be compulsory. Coroners and coroner court staff should be required to complete an approved course of training with regular updates. Only by this requirement will it be possible to remove the inconsistencies of approach between individual coroners.
Question 53. If compulsory, or part compulsory, should training have to happen before a coroner / officer / staff can operate, or within a certain period of their beginning – say 3 or 6 months? Or should only particular duties be exempt until training is received?
Whether the training should happen before the individual can operate rather depends on what the post is, what level of specialist skill is required for it and the experience of the post holder. But it is obviously desirable that they receive training prior to taking up the position and also that they are required to sit in with someone already in the post for a certain period.
Question 54. Should trainees have to complete a certain number of training days per year, or certain modules? What should the requirement be?
Yes. It is difficult to be specific about the requirement but it should be at least the same as the requirement for solicitors – a minimum of 16 CPD hours.
Question 55. If training is compulsory, what might be effective sanctions to ensure completion?
The individual should not be allowed to remain in post if they do not complete the training without good reason.
Question 56. What should happen if training is compulsory and someone cannot complete it – because of work commitments, illness, or lack of authorisation from managers?
See our response to Q55.
Question 57. Assuming full induction has been received, should the minimum number of training days be the same for each category of person to be trained?
We would expect coroners to receive more training that junior clerks.
Question 58. Who do you think would be best placed to deliver training and why?
Training should be provided by lawyers, coroners and judges with proven experience as well as by other bodies such as the HSE.
Coroners need to understand the law and how to carry out an investigation. They also need specialist training in construction deaths and deaths in custody where the issues are inevitably complex.
Question 59. Should the Chief Coroner approve a provider before they can train coroners, coroner’s officers and support staff?
It is desirable to have an approved provider to ensure consistency of training. The key though is in the evaluation and feedback from trainees, which must be taken into account.
Question 60. Should there be a mix of providers, depending on the event?
Question 61. Should training provide Continuing Professional Development (CPD) credit for coroners?
Question 62. Should there be training courses – possibly residential – for induction courses for coroners and officers; and continuing professional development training?
Question 63. Should there be on site locally delivered training – for local issues?
Question 64. Should there be E-learning – for refresher training; updates on developments / changes; and information which it is useful to have permanently available to refer to?
Question 65. Should some types of training event be open to a mixed audience – e.g. coroners, their officers and other staff, medical examiners, medical examiner officers, local authority staff? If so, which?
Question 66. Should coroners be expected to devise an initial induction package locally for new area and assistant coroners, and / or for coroners’ officers and staff, based on a central template provided by the Chief Coroner’s office? Or do coroners believe this is not part of their role given that they do not have direct management responsibility for any of these groups?
Question 67. Are there any other issues the Chief Coroner should consider in drawing up training regulations?
Issues of how the training will be paid for must be considered. It should be funded through the chief coroners office and not locally, otherwise it will not be consistent across the country.
Question 68. Should an equivalent short death certificate be issued by a registrar of births and deaths free of charge for each death registered in England and Wales? Please include the reasons for your views.
It should be issued free of charge. The certificate is a necessary record for most families and assists them to deal with matters of the estate and any possible litigation that flows from the death.
Question 69. Should a short certificate omit any information about the occupation and other details of the person who has died, and the person who has authorised registration of the death?
It should not, for the reasons given above.