Professional Discipline 4th Nov 2021

Government Responds to Coroner Service Inquiry Report: what changes to the inquest process can we expect?

In May 2021, Parliament’s Justice Select Committee published its report on the Coroner Service, proposing a series of reforms for improving the bereaved person’s experience of the inquest process. In September 2021, the government published its response. In short, change is in motion. Further adjustments can also be expected after the government responds to the Bishop James Jones’ review concerning the experiences of families affected by the Hillsborough disaster.

This article focusses on the government’s response to those matters which are most relevant to practitioners working in coronial law, in particular its:

  • Proposed reforms of the agencies which discharge coronial services,
  • Consideration of legal reforms to the inquest process itself,
  • Its position on amending legal aid funding arrangements.

Institutional reforms

Reducing the number of coronial areas

At the level of institutional design, perhaps most significant is the government’s agreement with the Committee that reducing the number of coronial areas since 2009 has helped to increase consistency across the coroner service. The Committee recommended that, as requested by the outgoing Chief Coroner, the Ministry of Justice (MOJ) amend the Coroners and Justice Act 2009 to make it easier to merge areas. The government is accordingly including this proposal in the Judicial Review and Courts Bill.

A Single Coroner Service?

The Committee additionally recommended that the MOJ should unite coroner services into a single coroner service to reduce the variation in the standard of service between the coroner areas. The government has not accepted that recommendation because it is not convinced first of its cost efficiency and second of its likely practical effectiveness.

Oversight for the Coroners Service?

In respect of regulation, the Committee proposed that the MOJ should establish a Coroner Service Inspectorate. The government said it will examine this recommendation further, and the affordability of such a body.

Legal Reforms

A Charter of Rights?

Building on the conclusion of the Bishop James Jones’s review, the Committee considered that bereaved people deserve a statutory charter of rights setting out the standards of service that they are entitled to receive. The Committee proposes for this to be modelled on the criminal justice system’s Victims’ Code.

In the government’s view, the Guide to Coroner Services for Bereaved People offers sufficient information on the standards that bereaved people can expect to receive from the inquest process.

Nevertheless, the government is still considering what more might be provided to bereaved families, and has not formally responded to this recommendation at this stage. Rather, it intends to set out its proposals in its response to Bishop James Jones’ report. At the same time, it will also respond to the Committee’s proposal that the MOJ should amend the Coroners’ Rules to make clear that the Duty of Candour extends to the Coroner Service.

Appeals

The Committee recommended that the MOJ should introduce a system of appeals similar to that in section 40 of the Coroners and Justice Act 2009 as originally enacted. Section 40 of the 2009 Act, which was repealed without ever having been commenced by section 33 of the Public Bodies Act 2011, made provision for a detailed appeals route to the Chief Coroner, with onward appeal to the Court of Appeal, setting out numerous matters which could be appealed.

Despite concerns about the cost and practicality of maintaining such an appellate process, the government says there is merit in considering the original section 40 and whether there is a need for an additional mechanism to enable more decisions to be appealed. Any future option would need to be proportionate, in the sense that it should neither make the system more litigious and adversarial, nor should it overwhelm the Chief Coroner’s office.

Fresh Inquests

The Committee noted that the High Court’s powers following an application under section 13 of the Coroners Act 1988 were either to order an inquest to be held where a coroner had refused to hold one or to quash an inquest and order a new one, if that would be in the interests of justice.

It considered that there may be circumstances where it would be sensible for the High Court to be able to direct that the particulars of the Record of the Inquest be amended as appropriate without ordering a fresh inquest. This suggestion had been proposed in successive Chief Coroner’s reports to the Lord Chancellor, most recently in the then Chief Coroner’s combined annual reports for 2018/19 and 2019/20.

The government has accepted this recommendation, together with the Committee’s suggested caveat that the High Court could only use the new power “with the consent of the interested party applying under section 13”. The government will seek to introduce this measure into legislation when parliamentary time allows.

The Use of Technology and Covid 19

Following the success of remote measures during the Covid-19 pandemic, the Police, Crime, Sentencing and Courts Bill includes a measure to extend the use of video and audio hearings to coroners’ courts, enabling more participants to attend inquest hearings remotely. The government will also include another two coronial measures in the Judicial Review and Courts Bill:

  • To allow pre-inquest hearings and inquests to take place where all participants including the coroner, participate remotely, bringing coroner’s courts in line with other courts.
  • To allow inquests to be held without an in-person hearing in non-contentious cases.

On a related note, section 30 of the Coronavirus Act 2020, which removed the requirement for a jury inquest where COVID-19 (a notifiable illness) is suspected to be the cause of a death, will be replicated in the Judicial Review and Courts Bill.

Legal Aid for Inquests

The gap between the Committee and the government is widest in the realm of legal aid funding for inquests. In short, the Committee recommended an end to both Exceptional Case Funding (ECF) requirements and the means test for legal aid for bereaved persons where public authorities are legally represented at inquests into the death of their loved one.

The government, however, remains of the view that the inquest process is intended to be inquisitorial, and that legal representation should not be necessary at all inquests. That said, the government will be taking forward legislation to remove the means test for applications for ECF. Beyond this, the Government will be considering its approach to legal aid for inquests as part of its response to Bishop James Jones’ report.

Sapandeep Maini-Thompson


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