Inquests are becoming increasingly adversarial: Fact v theory in the Coroner’s Court
An inquest is solely a fact-finding inquiry, the purpose of which is largely to answer four questions: Who was the deceased? How, when and where did they come to their death?
There are no formal allegations, no prosecution and no defendant, only Interested Persons. The Coroner’s Court is not a court of remedy; no civil or criminal liability may be apportioned. It follows, therefore, that inquests should be non-adversarial in nature.
That is the theory. In practise, a number of factors have given rise to increasingly contentious proceedings.
Whilst Coroners are precluded from determining civil or criminal liability, their determination may be pivotal to the outcome of any future proceedings.
Once evidence is put before the Coroner it is very difficult for a witness to alter their version of events. Representatives for a party with a prospective compensation claim often see the inquest as an opportunity to tie witnesses to their account and inevitably look to find weaknesses in a potential Defendant’s case.
Alternative funding arrangements also play their part. Law firms increasingly offer families ‘no win no fee’ type agreements, which encompass inquests on the basis of the potential return from a subsequent civil claim. They stand to lose significant sums in costs where a Coroner’s findings undermine the prospective civil claim. In addition, the decision in Lynch made it clear that the recoverability of the costs of attendance at an inquest is dependent on demonstrating the benefit of that attendance to a later civil claim. The appeal of extracting evidence more suited to civil claims means that more hostile lines of questioning may be unavoidable.
Inquests often involve large public bodies and may give rise to damaging allegations of incompetent management, substandard care or neglect. Inquests are usually conducted in open court, meaning that the media are able to be present throughout. Efforts to protect an Interested Person’s reputation may lead to their representatives being instructed to adopt a more combative approach, which carries its own risks. Those risks were brought into sharp focus in the context of the recent Hillsborough inquests where there were calls in the media to bring an end to ‘character assassination’ style questioning of witnesses.
Whilst the de jure position remains that inquests are inquisitorial and not adversarial in nature, the legal and procedural framework within which they operate has continued to develop.
In 2004 the House of Lords held that, in order to satisfy the requirements of Article 2 of the European Convention on Human Rights, a Coroner’s determination ought to extend beyond their previously supposed remit and articulate a conclusion on the disputed facts of the inquest. The Coroner’s and Justice Act 2009 later supplemented the ruling in Middleton. The Act extends the Coroner’s duties such that in cases where it is deemed necessary in order to avoid a breach of any Convention rights, the Coroner is now required to ascertain the circumstances in which the deceased came to their death. These detailed determinations clearly have the scope to increasingly engage the points raised above.
In theory, the requirement for such a determination was distinct from a narrower ‘Jamieson style’ inquest, which did not engage Article 2. In 2012, however, the decision in Kent largely eroded the distinction. The Court observed that the extent to which a Jamieson inquest can rightly be narrower in scope than a Middleton type inquest is ‘perhaps debatable’ and noted that a coroner should at all times be investigating the facts ‘fully, fairly and fearlessly’. Since Kent, all inquests have the potential to cause concern for Interested Persons keen to avoid a potentially more damaging determinations.
Coroners have started to embrace the greater use of preliminary enquiries encouraged under the Coroners and Justice Act 2009. A greater focus on early enquiries reduced the number of inquests across England and Wales by 15% in 2015. Those investigations that are deemed to require a full inquest are likely to be those befitting of greater, and more heated, debate.
Since 2014, Coroners have been required to publish Prevention of Future Death Reports (PFDs). Whilst the proportion of deaths reported to Coroners has remained remarkably consistent over the last ten years, the number of PFDs being reported in the press (and being used as evidence in civil actions) has risen dramatically. The prospect of reports being publically available adds yet another layer of reputational risk for Interested Persons.
Perhaps the most obvious factor is that inquests invariably occur in naturally adversarial circumstances. Coroners investigate deaths that are considered violent or unnatural, where the cause of death is unknown, or the deceased has died whilst in some form of state detention. It is little wonder then that, when dealing with bereaved families often harbouring a sense of injustice, emotions run high in the courtroom.
Healthcare professionals who are notified that they are to be an Interested Person, or required to give evidence at an inquest, should seek professional advice at the earliest opportunity. In many cases appropriate advice will be available through an employer or defence organisation. For those who do not have access to such support we are happy to assist.
For more information or guidance, please contact:
T. 020 7227 7433
R v North Humberside Coroner, Ex Parte Jamieson  QB 1
R (Middleton) v West Somerset Coroner  2 AC 182
R oao Kent County Council v HM Coroner for the County of Kent  EWHC 2768 (Admin)
Lynch v Chief Constable of Warwick Police  Inquest L.R. 247
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.