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Inquests - the wider scope they can take and how local authorities should be prepared
4 Dec 2009
The Coroners & Justice Bill 2009 aims to deliver a more
effective, transparent and responsive coronial system by reassuring
all those who are bereaved that causes of death are independently
checked. Barrister Fiona Butler, who recently represented
Leicestershire County Council in the inquests into the deaths of
Fiona Pilkington and Francecca Hardwick examines the wider scope
inquests can take and how local authorities should be prepared.
Article 2 of the Human Rights Act 1998 ensures that everyone’s
right to life is protected by law. The extent of Article 2’s
involvement in inquests has been the subject of some debate through
the Courts over recent years. This has had the overall effect of a
widening of the question of ‘how’ a deceased came by their death,
so that a Coroner doesn’t just look at ‘by what means’ somebody
died, but looks at ‘by what means and in what circumstances’?
The issue of negligence is not a consideration for the Coroner
but in cases where negligence is suspected the Coroner has an
obligation to make thorough investigation into the state’s role in
the individual losing their life. Whilst the Courts have held that
it will only be in exceptional cases, in practice the exception is
fast becoming the rule.
The Pilkington case
Recent news headlines reported ‘mother kills herself and
daughter in car fire after years of anti-social abuse’.
The inquest into the deaths of Fiona Pilkington and her disabled
daughter, Francecca Hardwick, held before a jury because the deaths
concerned issues of general public safety, was a 6 day inquiry into
the actions of two local authorities, their systems and their
procedures for protecting vulnerable people.
The Police, the District Council and the County Council had
considered it appropriate after the deaths to conduct a Serious
Case Review. However, the Coroner’s inquest examined in much wider
detail the actions of each agent of the state and their potential
failings in protecting the lives of this mother and her
daughter.
There are no rules of evidence in a Coroner’s inquest, and
whilst questions should not seek to determine criminal or civil
liability, or impose the Coroner’s own opinions upon a witness, the
investigative nature of questions which aim to determine whether
there have been any failings which contributed to the death of an
individual, can nevertheless be searching and fierce. In the
Pilkington and Hardwicke inquest, witnesses were called to account
to answer such questions in full display of the world’s media.
The jury found themselves having to grapple with understanding
complicated police reporting and recording systems, the criminal
justice system, anti-social behaviour legislation, the remit of the
district council in tackling anti-social behaviour and the role and
function of social services, its infrastructure and the
responsibilities of the transitions team.
Unlike any other Court, the jury play an integral role in the
inquest procedure. They have the ability to ask questions of each
witness called. The evidence given by those representing a local
authority must be simplistic and clear, avoiding management or
local authority ‘speak’.
Prevention of Future Deaths
Coroners are encouraged to look to the future to ensure that
similar deaths do not reoccur. This obligation is not new, but
Government has recently strengthened its remit. There is now a
statutory duty on organisations receiving reports from the Coroner
to respond and for the first time there is a mechanism to ensure
national oversight so that lessons learned can be disseminated.
The key changes are:-
- Coroners have a wider remit to make reports to prevent future
deaths. It does not have to be a similar death;
- a person who receives a report must send the Coroner a written
response within 56 days;
- Coroners must provide interested persons to the inquest and the
Lord Chancellor with a copy of the report and the response;
- the Lord Chancellor may publish the report and response, or a
summary of them.
Previously Coroners were limited to writing reports where they
believed that action should be taken to prevent the recurrence of
similar fatalities. The amended rule has been widened so that
Coroners may now make reports to prevent any other deaths based on
the evidence heard at an inquest. This will allow the Coroner to
report issues that may be peripheral to the current case but
nevertheless prevent deaths in the future.
Whilst the amended rule does not impose a sanction on
organisations that fail to respond to a recommendation, the failure
of a specific organisation to respond may be recorded in any
document the Lord Chancellor publishes and hence subject to public
scrutiny, no doubt through the worlds media.
Those giving evidence on behalf of a local authority need to
anticipate and address the potential for a recommendation and
negate the need for the Coroner to make a recommendation.
Investigating child deaths
From 1 April 2008 Local Safeguarding Children’s Boards have had
a statutory responsibility to conduct reviews into all child deaths
for children who were normally resident in a local authority area.
Coroners are now under a statutory duty to share information with
Local Authorities in deaths concerning children and this allows
Coroners and LSCBs to work together to enable LSCBs to meet their
obligation to conduct child death reviews and to fulfil their
statutory obligations more generally. Whilst there is no current
statutory requirement to hold a Serious Case Review, information
sharing between the Coroner and local authorities in cases of adult
deaths will no doubt be equally encouraged.
The future
Where Article 2 of the Human Rights Act 1998 is engaged,
inquests take the form of hearings of close public scrutiny such
that there is little distinction between this style of inquest and
a public inquiry.
Local authorities who have the misfortune of coming before a
Coroner for an inquest where safeguarding issues or health and
safety issues arise need to be prepared for the level of scrutiny
to which they will be subjected. A too narrow focus will leave the
authority and their witnesses exposed.
Early input from legal advisors experienced in Coronial law is
necessary. Carefully prepared evidence can avoid a Coroner’s
recommendation. If mistakes have occurred that fact should be
accepted at an early stage. Local authorities should demonstrate a
proactive approach in investigating failings and making
improvements to working practices.
This proactive approach will save the embarrassment of receiving
a recommendation two years after a death has occurred which
suggests that practices have remained flawed in the interim between
death and the inquest.
Fiona Butler, barrister at Browne
Jacobson represented Leicestershire County
Council.
This article was first published on Local Government
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