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Inquests: The Coronavirus Act 2020 and the scrutiny dilemma

The unprecedented situation presented by the Coronavirus outbreak has created numerous issues for the Coroner’s service which bring the objective of the Coroner’s investigations – scrutiny, and prevention of future deaths – into sharp focus. The outbreak has necessitated an emergency legislative response, which undoubtedly raises concerns as to whether the normal processes of scrutiny may be side-stepped under the rubric of an emergency.

Inquests perform an important function in investigating the facts of any violent or unnatural death; any death where the cause is unknown; or a death occurring in state detention.[1] Although a Coroner is not required to hold an inquest touching the death of an individual when their cause of death is known and it is a natural cause, authority establishes that death from ostensibly natural causes may be regarded as ‘unnatural’ if it was “unexpected” and “would not have occurred but for some culpable human failure.”[2] Coroners are obliged to investigate a death if they have reason to suspect that the death is unnatural and, as part of that investigation, must conduct an Inquest. As Sir Thomas Bingham observed in R v HM Coroner for North Humberside and Scunthorpe (albeit again focusing on state detention):

“It is the duty of the coroner as the public official responsible for the conduct of inquests, whether he is sitting with a jury or without, to ensure that the relevant facts are fully, fairly and fearlessly investigated..[3]

Coroners are also able to issue ‘Preventing Future Death’ reports highlighting issues identified during their investigation and requiring a response, with a view to mitigating identified risks. In-so-doing they expose to the public scrutiny past and continuing risks to life.

Jury Inquests, and their role

Holding a jury inquest is important in ensuring truly independent scrutiny of the state’s actions, as was explained by Mr Peter Thornton QC in the context of deaths in custody:

“Where a death occurs in custody or because of the act or omission of a police officer, the actions of agents of the State are under scrutiny; and the verdict at the inquest must be returned by a jury, as a body of people who are and are perceived to be wholly independent of the State.”[4]

The Coronavirus Act 2020, Section 30

Previously, a jury was required at an Inquest where the suspected cause of death was Coronavirus had been declared a notifiable disease[5] and a jury is required whenever the Coroner has reason to suspect a death was caused by any ‘notifiable accident, poisoning or disease’.[6] However, shortly after Coronavirus was made a notifiable disease Section 30 the Coronavirus Act 2020 suspended the requirement for a jury; treating it differently to all other notifiable diseases.

Prior to the current pandemic, deaths from notifiable infections were comparatively rare and may have indicated systemic concerns in relation to disease prevention measures. A good example would be a death from measles, which is both a notifiable and vaccine-preventable disease.

There is no suggestion that the dis-application of the requirement for a jury inquest in case of Coronavirus is a principled withdrawal from the rationale which supported the introduction of the requirement for notifiable diseases generally. Rather, it is a pragmatic approach to managing the difficulties and delays which would arise from needing to empanel juries in potentially large numbers of inquests within a relatively short time scale.

Conclusion

The current situation raises a number of issues for Coroners; Media reports of failures in the delivery of testing, inadequacies in the supplies of personal protective equipment and a range of other issues will inevitably mean that it will be suggested with some frequency that some human failure has been involved in a Coronavirus death which was otherwise avoidable. The exclusion of Coronavirus deaths from the statutory requirement to hold inquests with a jury in the case of notifiable diseases may well be counterbalanced by arguments under Article 2 of the ECHR and invitations to Coroners to exercise their broad discretion to hold the inquest with a jury, presenting inevitable challenges in achieving the required volume of jury inquests in a timely manner.

Undoubtedly there will be valuable lessons to be learned from a broad-based review of the preparations for, and management of, this pandemic. The Government has made no commitment to such an inquiry. Such a commitment might deprive requests for an Article 2 inquest of some of their force in certain cases. Given the tragic scale of deaths which are expected in this pandemic, and the inevitable questions which are likely to be raised as to whether any individual death was avoidable, it is likely that Coroners will be dealing with a significant volume of Inquests arising from Coronavirus deaths for a considerable time to come.

 

[1] Coroners and Justice Act 2009, Section 1.

[2] R(Touche) v Inner London North Coroner [2001] EWCA Civ 383 at 46 – 47. See also R(Thomas) v Inner North London Coroner [1993] QB 610 and R(Smith) v Avon Coroner (1998) 162 JP 403

[3] R v HM Coroner for North Humberside and Scunthorpe Ex p. Jamieson [1995] QB 1, at [26].

[4] Shafi v East London Senior Coroner [2015] EWHC 2106 (Admin); [2016] 1 W.L.R. 640, at [60].

[5] For a full list of notifiable diseases, see: https://www.gov.uk/guidance/notifiable-diseases-and-causative-organisms-how-to-report#list-of-notifiable-diseases [accessed 30 Mar 2020].

[6] Coroners and Justice Act 2009, Section 7(2)(c).


Disclaimer

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.

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