Newsletters Criminal Regulatory 24th Oct 2017

Inquests and Public Inquiries: Differences in Scope

In the immediate aftermath of the Grenfell Tower Tragedy in which at least 80 people died the Prime Minister announced a judge led public inquiry into the circumstances of the fire. The decision to launch an inquiry was not universally welcomed. Some argued that an inquest rather than a judge lead public inquiry should investigate the causes of the tragedy. At the root of the criticism was the sense that a public inquiry would not be wholly independent and underpinning it the belief that a Coroner’s Court is able to investigate the many issues raised by the tragedy. So what are the respective scopes of each type of proceeding?

A coroner has a duty to investigate a death where she has reason to suspect that: the deceased died a violent or unnatural death, the cause of the death is unknown, or the deceased died whilst in custody or state detention.

Under Section 5(1) of the Coroners and Justice Act2009 the purpose of a coronial investigation is to answer four statutory questions about the deceased namely: who, where, when and how he died. Under Section 5(3) neither the coroner nor the jury ‘may express any opinion on any [other] matter’ subject to the duty to make a prevention of future death report. Under Section 10, no determinations may be framed in such a way as to appear to determine any question of criminal or civil liability on the part of a named person.

The ‘how’ question and therefore the scope of an inquest can be significantly expanded to include the circumstances the deceased came by his death if Article 2 of the European Convention on Human Rights is engaged. In R (Speck) v Coroner for York [2016] EWHC 6 the High Court provided guidance as to the issues which may be investigated by a coroner within that broader Article 2 context. Mr Justice Holroyde identified three categories of issues when considering the scope of a Coroner’s investigation: (1) Issues which are, or at least appear arguably to have been, central to the cause of death.  The coroner must investigate such issues. (2) Issues which “may possibly have contributed to the death” which he has a discretion whether or not to investigate. (3) Issues which are not causative, which the coroner is not permitted to investigate.

The scope of a Coronial inquiry may also effectively be broadened by its findings of fact. The Chief Coroner’s published Guidance Note 17 on conclusions (revised in January 2016) directs that a three-stage process be followed in reaching a conclusion (whether by a jury or a coroner): (1) To make findings of fact based upon the evidence, (2) To distil from the findings of fact ‘how’ the deceased came by his or her death and (3) To record the conclusion, which must flow from and be consistent with (1) and (2). Whilst findings of fact form no part of a Coroner’s conclusion they nevertheless have the effect of expanding the scope beyond directly answering the four statutory questions.

Another aspect of the Coronial jurisdiction that may broaden the scope of inquiry is the Coroner’s power to make Prevention of Future Death Reports (Regulation 28 reports). Where a Coroner has identified circumstances creating a risk of death she must report the matter to a person who she believes may have power to take action. Whilst it was not the intention under the 2009 Act that inquests should be lengthened or their scope widened for the purpose of hearing representations in practice that has not been the case. It is often necessary to hear evidence relevant to answer PFD questions but not strictly relevant to the outcome of the inquest.

Section 1 of the Inquiries Act 2005 provides that only a Government Minister may establish an inquiry under the Act where it appears to her that either (a) particular events have caused, or are capable of causing, public concern, or (b) there is public concern that particular events may have occurred. Therefore, where political will allows it, section 1 allows for the broadest scope of inquiry. Unlike the Coronial jurisdiction, matters are not limited to those that have caused death. The only statutory limitation on scope is contained within Section 2 of the 2005 Act which provides that an inquiry panel “is not to rule on, and has no power to determine, any person’s civil or criminal liability”. However, section 2(2) states that an inquiry panel “is not to be inhibited in the discharge of its functions by any likelihood of liability being inferred from facts that it determines or recommendations that it makes”. The Explanatory Notes published with the 2005 Act provides this commentary on section 2: “The purpose of this section is to make clear that inquiries under this Act have no power to determine civil or criminal liability and must not purport to do so. There is often a strong feeling, particularly following high profile, controversial events, that an inquiry should determine who is to blame for what has occurred. However, inquiries are not courts and their findings cannot and do not have legal effect. The aim of inquiries is to help to restore public confidence in systems or services by investigating the facts and making recommendations to prevent recurrence, not to establish liability or to punish anyone.  However, as subsection (2) is designed to make clear, it is not intended that the inquiry should be hampered in its investigations by a fear that responsibility may be inferred from a factual determination”.

It follows therefore that the terms of reference are of fundamental importance to an inquiry and determines its scope. The 2005 Act requires that the Minister establishing the inquiry to set out the terms of reference and grants her an express power to amend them if she considers that the public interest so requires Section 5(3). Where the political will allows it and events demand it the scope afforded could not be broader.

Whilst the scope of coronial proceedings as a matter of statue is by its nature more restrictive than a public inquiry it is in practice broader than might first be thought. This is evident in the number of high profile and complex inquests which have taken place in recent times in relation to the 7th July London Terrorist Bombings, the Lakanal House Fire, the Mark Duggan Shooting and the Hillsborough Disaster.

Alex Tampakpoulos 

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