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CHIEF CORONER’S GUIDANCE No. 38:  REMOTE PARTICIPATION IN CORONIAL PROCEEDINGS VIA VIDEO AND AUDIO BROADCAST

On the 11th June 2020, The Chief Coroner published his Guidance No 38, headed ‘Remote Participation in Coronial Proceedings via Video and Audio Broadcast’. (here)

Just as the Crown Courts start to address the difficult issue of holding jury trials once more, so the Chief Coroner has sought to encourage Coroners, Practitioners, Interested Persons, Witnesses, the Press and Public as to how Inquests can or may be held as the lockdown is released, albeit gradually, and with social distancing maintained.

The current pandemic has increased the need to use technology to facilitate remote participation in hearings. Whilst it is the Chief Coroner’s view that partially remote hearings should take place wherever possible if the technology allows, it is in the interests of justice and its use must be consistent with the administration of justice.

A Coroner must be physically present in Court to hold an Inquest

It may come as a surprise to everyone to learn that, unlike judges sitting in civil and criminal jurisdictions, Coroners must be physically present in a Courtroom to hold an Inquest. Civil and Criminal judges have been able to hold remote hearings from their kitchens, attics and even gardens during the pandemic but nothing can be conducted by a Coroner acting remotely from their office or home.

If a Coroner has to be physically present in Court to hold an Inquest, who else does?  Can there be a mix and match or as the current phrase in Coronial Circles gains traction, has the Chief Coroner heralded the start of ‘Harlequin Inquests?’ [1]

Harlequin Inquests

The Guidance makes clear that in a Harlequin Inquest neither the Practitioners, Interested Persons, Witnesses, the Press or the Public need to be physically present as well. But "this should not inhibit the use of physical courtrooms in line with social distancing" and the court room should, says the Chief Coroner "as far as possible remain open" even if partially remote participation is taking place - although social distancing may of course limit the number of people it is possible to have in court.

Coroners can order a partially remote hearing. If they are to do so, they need to give those affected an opportunity to make representations. Coroners will need to consider those representations alongside an interests of justice test. When making such a ruling Coroners should set out their reasons to Interested Persons at the conclusion of any PIR or in writing by letter or email.

Open justice is the fundamental principle

Open justice, meaning public access to justice, is the fundamental principle underpinning the way in which all Coroners must deal with any remote hearing.

Coroners can receive evidence remotely by live video and allow Interested Persons to participate remotely.

Rule 17 of The Coroners (Inquest) Rules 2013 makes specific provision for witnesses to give live evidence via video-link where a Coroner makes a direction that allows a particular witness to give evidence by video-link is justified where to do so 'would improve the quality of the evidence given by the witness or allow the inquest to proceed more expediently’.  

Although this provision has been in place for some time, it was scarcely used before the pandemic, with the default in most jurisdictions being to require all witnesses to come to the Court unless some special circumstances prevailed. Perhaps we might now find that the increased familiarity of lawyers and the general public with holding conversations remotely puts a new gloss on “expediently”. In particular it would be welcome learning from the pandemic if droves of witnesses who are giving uncontroversial evidence are no longer required to give up their time to travel to court even after the coronavirus restrictions lift.

All participants need to be reminded by Coroners whether someone is present physically in court or remotely, their presence physically or remotely will not affect the determination of any issues that arise or any conclusion that might be reached.

Video feeds and court extensions

There is no problem relaying a live feed from a main courtroom hearing an Inquest to a secondary courtroom holding, for example, members of the press or public, as has occasionally happened in high profile Inquests. The recent case of R (Spurrier) v Secretary of State for Transport [2019] EWHC 528 (Admin) explicitly acknowledges that this is permitted as “the second court is simply an extension to, and thus part of, the court, subject to the usual rules and restrictions that a court can and does impose.”

That said, it is unlawful for there to be any livestreaming of those proceedings from a Coroner’s Court, meaning the transmission of live video (including audio) evidence to the Public (including the Press) over the internet.  

Coroners holding such inquest are perhaps well advised to issue clear directions reminding lay participants that the recording or transmitting onwards of voice and images is not permitted and that it should be borne in mind throughout that whilst the hearing will be conducted, inevitably, against a backdrop which seems less formal, it remains, in every sense, a court hearing in which the core formalities remain.

The Coroner can permit the use of audio only lines to enable the Press and Public to participate provided the Coroner makes a Ruling that disapplies expressly the effect of Section 9 of The Contempt of Court Act 1981 and reminds the Press and Public that it remains a Contempt of Court to record, play, dispose of, publish a recording or transcript of the proceedings and as such it is a criminal offence to make or attempt to record or broadcast the proceedings. 

The Guidance suggests that Harlequin hearings are for obvious reasons generally not suitable, save in the most exceptional and limited circumstances, for any Jury Inquests.  It remains to be seen in practice how Coroners will apply this Guidance in the immediate future, but it is a welcome move forward in reducing delays for the bereaved in discovering how their loved one died. 

  

Footnote

[1] a term first very aptly coined by the Senior Coroner for Brighton & Hove, Ms Hamilton-Deeley, who with the superb assistance of her Coroner’s Officers and Assistants has successfully been running such inquests for some weeks.

Harlequin being of course used in the sense it is employed to describe sets of chairs - made up of a pastiche of different individual parts that make a stylish whole - and not the comic servant characters from the Italian commedia dell’arte nor any DC comics character!