Keeping expert evidence secret at an inquest

Written by: Matthew Holdcroft, Bridget Dolan KC
Published: 1 July 2020

Re Ketcher and Mitchell [2020] NICA 31

There has rightly been increasing emphasis since the Mid Staffs inquiry and other high media profile investigations, such as Hillsborough, on the responsibility of public bodies to be open and candid in all of their dealings with the Coroner. Whilst legislation falls short of imposing a statutory duty of candour in respect of inquests, the expectation many will have of our public bodies is that they will do all they can to assist the coronial investigation in ascertaining the truth of how a person came to die, regardless of any reputational consequences or fear of future litigation. Indeed the Ministry of Justice has recently published the Government’s protocol that sets out the principles it expects to guide the behaviour of Government Legal Department lawyers and those they instruct at inquests. This includes an exhortation to “approach the inquest with openness and honesty, including supporting the disclosure of all relevant and disclosable information to the coroner” which they suggest should be a ‘model of behaviour’ for all interested persons (see Annexe A).

Against that background this recent decision from the Northern Irish Court of Appeal may seem rather out of kilter with the laudable aim of openness. Although expert evidence obtained solely for the purpose of an inquest will not, say the NI CA, attract litigation privilege, any compulsion to disclose such a report will, in the view of the Court, be highly likely to be unreasonable as being contrary to the public interest in encouraging interested persons to investigate and prepare their own cases.

Notably however, the context here was an expert report obtained on behalf the bereaved families in an Art 2 inquest – it is more difficult predict whether, if it were a public body seeking to suppress relevant evidence in an Art 2 inquest, the public interest balance would still be drawn in the same place.

Deprivation of liberty, death and Article 2

Written by: Cecily White
Published: 22 June 2020

R (on the application of Maguire) v HM Senior Coroner for Blackpool & Fylde [2020] EWCA Civ 738

The Court of Appeal has ruled that the state’s investigative obligations under Article 2 ECHR do not arise where someone lacking capacity and deprived of their liberty dies of natural causes. The state’s obligations under Article 2 had not been triggered in this case by the mere fact of vulnerability and that the deceased was deprived of her liberty in a care home pursuant to a standard authorisation under DOLS[1].

Facts

Jackie, who had Down’s syndrome and learning disabilities, and so was unable to care for herself, had fallen ill at her care home in the days before her death. The care home provided only personal (not medical) care but, when Jackie’s condition worsened, she had refused to go to hospital and had been permitted to remain at the home overnight. Jackie’s condition worsened further and she was eventually taken to hospital where she died as a result of a perforated gastric ulcer, peritonitis and pneumonia. At her inquest her family criticised (inter alia) the lack of a protocol at the care home for admitting Jackie to hospital in spite of her refusal. However, the Coroner ruled at the close of evidence that Article 2 ECHR was not engaged, such that the “how” question for the jury to answer under section 5(2) of the Coroners & Justice Act 2009 had its narrower meaning of “by what means” instead of “by what means and in what circumstances”.

The jury who were not permitted to consider any failings on the part of those caring for Jackie returned a conclusion of natural causes. Jackie’s mother sought judicial review of the coroner’s decision, when that application failed she appealed.

The Chief Coroner heralds the start of ‘Harlequin Inquests’

Written by: Malcolm Fortune
Published: 12 June 2020

Chief Coroner’s Guidance No. 38: ‘Remote Participation in Coronial Proceedings via Video and Audio Broadcast’, 11.6.2020

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]

Coronavirus, Coroners & the Crown Office: does Scotland lead the way in investigating COVID-19 deaths?

Written by: Rebecca de Hoest
Published: 22 May 2020

“Doctor, cast the water of my land, find her disease, and purge it to a sound and pristine health…” Macbeth, Act V, Scene III

Introduction

The difference between the Scottish and English approaches to managing coronavirus appears to be growing. Guidance from the Chief Coroner for England and Wales, HHJ Mark Lucraft QC, indicates that unless there are other factors, deaths caused by or suspected as being caused coronavirus don’t need to be reported to coroners; and deaths from coronavirus contracted in the workplace “may” be reported to the Coroner, but not necessarily resulting in an investigation.

By stark contrast, Scotland’s Lord Advocate, Sir James Wolffe QC, has announced that all confirmed or presumed COVID-19 deaths of residents in care homes or people who may have contracted the virus in the course of their work will be investigated by the Crown Office. The reasons for this difference of approach appear to lie in the different statutory remit of each office (Scotland doesn’t have inquests or coroners). However, the outcome might strike many as resulting in an arbitrary postcode lottery.

Data on Death: Coroner Statistics Annual Bulletin 2019

Written by: Louisa Brown, Rachael Gourley
Published: 19 May 2020

Ministry of Justice/ONS, 14.5.2020

On 14 May 2020, the most recent Coroners Statistics Annual Bulletin was published. At a time when data on death dominates the news, the Bulletin may have passed inquest practitioners by. However, the Bulletin remains a useful guide on the workload of coroners around the country and can be used to identify possible trends for the future.

It is important to note that whilst the Bulletin was published in May 2020, it covers the period from January to December 2019 and therefore it does not cover any Covid-19 related deaths. Such deaths will not be included in the Bulletin until its next publication date in May 2021.

Key figures from the 2019 Bulletin:

40% of all registered deaths were reported to coroners in 2019;
Overall deaths in state detention are down 7%, driven largely by a 16% fall in deaths of individuals under the Mental Health Act 1983;
Overall, conclusions of suicide increased by 11%;
Average time taken to process an inquest rises to 27 weeks.