Getting disclosure

Coroners should remain free to make appropriate orders due to their unique role and new legislation should strengthen their powers. Simon Jackson QC reports

The principal problem in relation to disclosure in the coroners' court, is that there is no clear framework set out in the Coroners Rules 1984 (SI no 552) '“ although we shall have to wait and see what the new rules and regulations provide for when the recently published draft Coroner Reform Bill becomes law.

There is still no substantive duty upon a coroner to give pre-inquest disclosure in respect of any inquest held (see R v HM Coroner at Hammersmith, ex p Peach [1980] QB 21) and so the practice for giving such disclosure, which has developed since this decision, is rather more intangible and ad hoc, as compared to the equivalent regimes for disclosure in either the criminal or civil courts. It must be remembered, however, that inquisition is a completely different process: there is no defendant and it is non-adversarial, at least in principle.

No obligation

The obligation upon coroners to give disclosure is reactive and/or pragmatic and usually arises out of the necessity to ensure interested persons are in a position to indicate whether documentary evidence may be admitted under r 37 of the Coroners Rules 1984. It is not possible, of course, for interested parties to agree such a course, unless prior notice and disclosure has been given by the coroner. As a matter of practice, advance disclosure has increasingly been given to interested parties in respect of witness lists and some statements, but sometimes this disclosure might only be at court and on the day of the inquest. (See also r 57 which focuses on post-inquest disclosure.)

On occasions, coroners have decided not to call witnesses or disclose documents on the grounds that it would either be inconvenient or impractical to do so. These, however, are not good reasons '“ see R v HM Southwark Coroner, ex p Hicks [1987] 1WLR 1624, where Peter Pain J made clear that 'it is the duty of the coroner to make proper enquiry, no matter the inconvenience that may be caused in doing so'.

In Hicks, one of the complaints was that the medical notes, which may have shed light on the cause of death, were never obtained or provided to a medical witness for his opinion. That failure was not criticised in the Divisional Court. I would argue that a different view would and should be taken now.

'Effective participation'

Hicks was considered by the Administrative Court in R v HM Coroner for Avon ex p Bentley [2001] EWHC Admin 170. In his judgment, Sullivan J observed (para 54), when referring to the much earlier case of Peach, that 'natural justice might [now] require prior disclosure of statements.'

At para 65, he observed that: 'The proposition that a person will not be able to participate in proceedings in an effective way, in the absence of advanced disclosure is increasingly recognised.'

He also referred to the recent changes in teh way other tribunal and inquiries operate. That observation contrasts with the view of Brooke LJ in R v HM Coroner for Lincolnshire, ex p Annette Hay (Unreported, 19.02.99), that the ratio in Peach remains good law.

More recently, in R (D) v Secretary of State for the Home Department, The Times, 21 March 2006, it was decided that the deceased's family could participate in relation to the inquiry into a death in prison and shape the questions to be put to witnesses, but had no right to cross-examine. This decision shows the courts now giving careful consideration to the discreet issue of what constitutes 'effective participation' in the context of a 'full and fair inquiry'.

There are, of course, a limited number of specific protocols for disclosure in the context of deaths in custody cases, eg, Home Office Circulars 20/1999 and 31/2002, but these are not adopted by all bodies that might represent the state's interest in the context of an Art 2 inquiry (see below). More generally, however, it is plain that the courts are not prepared to simply endorse an open policy on disclosure because of the risk that inquests may be diverted from their primary purpose and become battlegrounds for lawyers pursuing other agendas.

Balancing exercise

It is generally recognised and accepted that there is a balance to be struck in relation to the issue of disclosure by coroners. However, that balancing exercise can only be based on clear principle and by having proper regard to the issues involved in connection with the death; and the complexity of and the significance of those issues to the death.

There are also issues of practicality, and this is often, in reality, more determinative than principle. This analysis is derived from Ex p Hay [2000] Lloyd's Law Reports (Medical) 264, where Brooke LJ observed: 'The court was unwilling to fetter the discretion of a coroner, by being at all prescriptive about the procedures he should adopt in order to achieve a full, fair and thorough inquiry.'

(It should be noted that that decision was made against a background of the anticipated changes to the Coronial Service that have recently been published.)

Influencing factors

One of the most important factors in determining the likelihood and/or level of advance disclosure is going be whether the inquiry is deemed to be an Art 2 investigation. Plainly there is a greater need for careful consideration of the issue of disclosure in the context of, for example, a death in custody, as opposed to a road traffic fatality.

Another issue is whether criminal proceedings are pending. The HSE is often the investigatory and the prosecuting authority. (In cases of possible manslaughter that responsibility may be shared with the CPS.) Where criminal proceedings are contemplated, there are always real and proper concerns as to what material can and should properly be disclosed in the context of an inquest. However, coroners and the HSE need to, and should, recognise that each party has separate and distinct statutory functions to perform. That is why the decision whether to hold the inquest first is a key issue (see draft Coroner Reform Bill, cll 17-25).

Much will depend on the issues that are apparent from the material disclosed. This again brings us back to the coroner's preliminary view of the case and that in turn will be based on what he or she is given by the police or the HSE as the relevant investigatory body. There is no duty upon the investigators to hand over all the material they obtain in the course of their investigations, but the investigatory body is there to assist the coroner to enable the coroner to fulfil his or her duties. We shall have to see how coroners' new powers to seek and compel the production of evidence, under the new cl 42, will work in practice.

It is not appropriate for an investigating authority to withhold material that might materially affect the nature, balance and scope of an inquest for reasons connected with possible future prosecutions, but there will often be material that may need to remain confidential until the inquest is complete and which the investigating authority knows will not be communicated to any interested persons in the course of the inquest. There is a protocol that has been reached by the HSE with the Coroner's Society on this issue, but it is not binding on individual coroners.

The HSE's position in relation to disclosure in the context of inquests is detailed on its website, under 'Work-related deaths and inquests: The coroner and the HSE'. It must also be remembered that there are strict and important limitations on how material obtained in the context of an inquest can be used by interested persons (see Bentley, para 42).

Another important issue in this area is the sensitivity of the case, for example, the Stephen Lawrence Inquiry.

Reviewing the material

The starting point for coroners is still the investigator's report and supporting statements. With this primary documentation will often come a vast quantity of unused material. The police have a duty to schedule the material generated by their enquiries in a specific way in the context of a formal investigation. They produce an MG6C Disclosure Schedule and must comply with Home Office guidance referred to as 'JOPI'. The HSE schedules its material differently, but no less comprehensively, as it has different criteria to meet.

With all these matters in mind, it is important to remember, as advocates acting on behalf of an 'interested person', that inquests must still be considered differently from other litigation. The purpose of an inquest is still 'who, how (and in what circumstances), where and when?'. It is not to launch and/or investigate either civil or criminal prosecutions on the back of the inquest.

However, ensuring proper disclosure will still be very important, not only in Art 2 cases, but also in other complicated cases involving, for example, deaths in hospital, so as to permit interested persons the opportunity to investigate whether the death may have been preventable. In cases where an interested party's own expert has been tendered to and has been called by the coroner during the inquest, it is essential that the interested persons have an opportunity to consider such evidence in advance and take their expert's advice upon it. But this process must not encourage or facilitate the unnecessary instruction of experts and as a result, lead to the over-complication of the inquisitorial process.

Pre-inquest hearings

The kind of issues outlined above underline, in my view, the importance, in appropriate cases, of holding Pre-Inquest Hearings.

Often at an inquest, one or more of the interested persons has a greater measure of access to and/or control over the background material which is likely to be the subject of investigation in the course of the inquest (eg, prison, police or hospital). This means that the coroner has a duty to consider whether all interested parties have the same opportunity to participate fairly in the process.

Another issue that can be usefully considered at such hearings is the receipt of evidence in respect of which there may be special problems. At the Stainforth Beck inquest, conducted into the deaths of two children who were tragically swept away while 'riverwalking' on a school trip to the Yorkshire Dales, consideration was given at a pre-inquest hearing as to how video interviews with child witnesses might be dealt with and how many of the children would be called to give evidence. (See the new provision for the receipt of evidence from persons under 17 set out at cl 44 of the draft Bill.)

Equally there is the chance at such hearings to resolve how the PACE interviews of potential 'defendants' who may rely on r 22 of the Coroner's Rules 1984 are to be dealt with. Early resolution of such issues can save a lot of time and prevent inquests becoming paralysed by witnesses not answering questions (see Hay at paras 46-63).

Such hearings are obviously not necessary or appropriate for all inquests, as usually appropriate disclosure is achieved by correspondence with coroners rather than by a hearing that necessarily takes time and increases costs.

How the law in relation to disclosure develops in the future may depend, to a degree, on what the new Coroners Rules and/or Regulations provide (see cll 66-68 of the draft Bill).

Reform should focus on process

It is difficult to think that the recent Art 2 developments in this area will be lost or diluted in the future, but without seeing the detail of the new rules and regulations it is difficult to judge more generally where the balance will lie. While there are positive developments in relation to non-publication of deceased's details in the case of a

suicide or child death, where there is no public interest in disclosure, there are also new proposals in relation to privileged information'(cl 43) and PII material.

The widening of the definition of 'interested person' to include 'a person appointed by a government department to attend any inquest and who may not otherwise satisfy the usual test of having 'sufficient interest', is an interesting one too. Whether the reason relates to possible disclosure issues or is linked to right of appeal to the chief coroner we shall have to wait and see.

In the absence of new and specific guidance within the new rules, the position in relation to disclosure is likely to remain as it is now, with coroners applying the law as it currently stands. Their power to order appropriate disclosure in any given case is one that should be strengthened and not weakened in the future.

Reform of an historic rather archaic system is important and proper, but we need to be sure that we do not lose or cast out this particular baby with the medieval bath water. The emphasis must be on the process rather than the structures that delivers it and where the control of that process lies.