Dyer v Assistant Coroner for West Yorkshire [2019] EWHC 2897 (Admin)

If the tribunal, the lawyers and the jury who will be making the decision can watch a witness as they give live evidence one might ask why should it matter if the rest of the public and press might not see the witness’ face?

However it matters a great deal if one is to have any respect for the constitutional principle of open justice which, as one of the core safeguards in our judicial system, should be fundamental to all courts and tribunals exercising the judicial power of the state.

In Coroners courts, as in the rest of the British justice system, the notion that justice should not just be done, but also be seen to be done is far more than an often repeated trope; it is something that rightly weighs heavy when the loss of a life is at the centre of the inquiry, and particularly so when agents of state are implicated in the tragic death of a black man in custody. It is, therefore, unsurprising that in the recent case of Dyer heavy justification was required for preventing the deceased’s parents, partner and son from watching the faces of the police witnesses whilst they gave their inquest evidence.

Although balancing potential risks to police officers from those who may wish them harm could justify their giving evidence behind screens and so not open to public scrutiny, it was a step too far, held Mrs Justice Jefford, to also prevent the close family of the deceased from seeing the relevant officers’ faces.

The Notification of Deaths Regulations 2019

The Notification of Deaths Regulations 2019[1] come into effect on 1 October 2019 and will place a legal duty on ALL doctors who come to know of a death to ensure it has been reported to a Coroner where any of the circumstances that might trigger the Coroner’s investigatory duties appear to be present.

Although for over half a century, under the Births and Deaths Registration Act 1953[2], the deceased’s ‘attending medical practitioner’ (‘AMP’) has been required to provide the Registrar with a medical certificate of the cause of death (‘MCCD’), until now there has been no statutory obligation upon the AMP, or any other doctor, to either directly notify the Coroner or ensure the Coroner has been informed by another medical colleague of a death falling within the Coroner’s jurisdiction[3].

The circumstances in which the doctor’s notification duty will now arise largely parallel those situations falling under s.1(2) Coroners and Justice Act 2009 which would give rise to the Coroner’s own investigatory duty – i.e. when the doctor suspects the death was violent or unnatural (including from neglect or self-neglect) or that it occurred whilst the deceased was in state detention or where the cause of death is unknown or the identity of the deceased is not established.

“Better safeguards with the additional scrutiny of deaths”

Previously it would often be the Registrar or a Police Officer who would notify the Coroner of a death in the community. From tomorrow, wherever a notifiable death has occurred of which a doctor is aware that death must also be reported directly to the Coroner by a medical practitioner.

Fullick v The Commissioner of Police of the Metropolis [2019] EWHC 1941 (QB)

The funding of representation for the bereaved at inquests is not just an un-level playing field, but a total quagmire often more akin to the aftermath of an outing of the 1988 Pontypool front row on a rainy day in December. The costs of representation at an inquest will only be met from public funds in cases deemed to be ‘exceptional’ (where, as a minimum, Art 2 is engaged or where it can be shown that the provision of advocacy for the bereaved family at the inquest is likely to produce significant benefits for a wider class of people). Calls for non-means tested funding for the bereaved, even though supported by the Chief Coroner[1], have been rejected[2] [3]. Even the families of those killed in the London Bridge attack were told it was not in the public interest for them to receive state funding at the inquests[4].

Against that background, it is unsurprising that there is a growing body of case law regarding the recovery of the bereaved’s inquest costs as part of the costs of a subsequent successful civil claim. The amounts at stake can be very large even though the civil claim will often settle pre-action following pejorative inquest findings.

Some of the principles in play are now helpfully set out in the recent case of Fullick – an appeal of a Deputy Master’s order that the Met Police should pay costs of over £88,000 following the pre-action settlement of a claim for damages for breach of Art 2, negligence and misfeasance in public office in a death involving the police.

The decision is worth a read for its consideration of the purpose and function of an inquest, as well as its setting out of the principles underpinning the recoverability of inquest costs.