The Association of Personal Injury Lawyers
The Draft Coroner ReformBill
Response to Department for Constitutional Affairs
SEPTEMBER2006
Introduction
The Association of Personal Injury Lawyers (APIL) was formed in 1990 by claimant lawyers with a view to representing the interests of personal injury victims. APIL currently has around 5,000 members in the UK and abroad. Membership comprises solicitors, barristers, legal executives and academics whose interest in personal injury work is predominantly on behalf of injured claimants.
The aims of the Association of Personal Injury Lawyers (APIL) are:
- To promote full and just compensation for all types of personal injury;
- To promote and develop expertise in the practice of personal injury law
- To promote wider redress for personal injury in the legal system
- To campaign for improvements in personal injury law
- To promote safety and alert the public to hazards wherever they arise
- To provide a communication network for members
The executive committee would like to thank the following for their assistance in the preparation of this briefing:
Patrick Allen
Paul Balen
Grainne Barton
If you have any questions about this document please contact:
Richard Woodward
Parliamentary Officer
APIL
11 Castle Quay
Nottingham
NG7 1FW
Tel: 0115 938 8727
E-mail:
GENERAL COMMENTS
APIL welcomes the Government’s draft bill and is broadly supportive of many of its provisions. The accompanying ‘plain English’ clauses are a welcome development and the organisation supports the Government’s wish to include bereaved families in the pre-legislative scrutiny process. There are, however, still a number of areas where, APIL submits, the draft bill can be improved to ensure the system works efficiently for bereaved families.
The current system under which coroners and inquests operate in England and Wales is inefficient and archaic and coroners have long been considered by many to be a law unto themselves.
Despite recommendations over the yearswhich would have eradicated many anomalies in the system, there has never been the political will to bring coroners into the formal legal system, imposing on them all the checks and balances which apply to the established legal profession.
It is the contention of the Association of Personal Injury Lawyers that modernisation of coroners and inquests in England and Wales is long overdue, and that nothing short of a radical overhaul will create an efficient, modern system, which has the civil rights of bereaved families at its centre.
PART 1 – INVESTIGATIONS INTO DEATHS
Chapter 1 – Investigations into deaths
Clause 1 - Duty to investigate certain deaths
APIL has concerns about subsection (2), specifically the reference to ‘unnatural death’. A clearer definition of unnatural death is necessary to help to ensure greater consistency in the new system and it is suggested that a new clause is added to the bill to clarify and extend the definition of unnatural death to include:
‘A death in unexpected, unusual or unnatural circumstances
A death which it appears may have been caused wholly or partly as a result of a breach of a duty of care to the deceased, whether by acts or omissions
A death where human fault or intervention has
1. turned an otherwise natural death into an unnatural death
2. may have accelerated death, even when the death may have been due to natural causes’.
APIL welcomes the inclusion of deaths in ‘prison or otherwise lawfully detained in custody’ in subsection (4) but we submit it should be extended to include those deaths which occur in mental health institutions. The coroner’s inquiry should become the primary vehicle for the investigation of all deaths which occur by the acts, omissions or neglect by servants of the state and this should include the deaths of people who were detained under the Mental Health Act 1983.It is essential that the deaths of vulnerable people in the care of the state should be investigated by a coroner to ensure a proper service for bereaved families. This would also ensure the Government is compliant with the procedural obligations imposed by article 2 of the Human Rights Act 1998 as defined in the cases of R v Secretary of State for the Home Department [2003] and R v Her Majesty’s Coroner for the Western District of Somerset ex parte Middleton [2004].
Clause 5 – Deaths outside the United Kingdom
APIL is generally in favour of the removal of the mandatory investigation of deaths abroad althoughit is crucial that clause 6 (3), which provides for an application for an investigation to be conducted on request, is maintained in the bill. APIL submits that clause 5 (1) should be amended to read:
‘The duty of a senior coroner to conduct a sufficient investigation….’
This will introduce the necessary degree of rigour to the investigation. APIL believes that clause 5 (4), relating to members of Her Majesty’s forces, needs further clarification. This provision should also apply, for instance, to the deaths of people working on army bases abroad or those who were undergoing treatment in military hospitals. APIL submits this clause should be expanded to include the deaths of anybody who died on premises abroad controlled by the UK government.
Chapter 2 – Further provision about investigations
Clause 10 – Purpose of investigation
APIL submits that the wording of clause 10 (1) (a) should be amended to read:
‘who the deceased was, and when, where and in what circumstances he came by his death’.
APIL believes the current phrase, ‘by what means’ is too narrow and could exclude information which has a vital bearing on the nature of the death in question.Any interested party, such as a bereaved relative, will want to know the circumstances of the death rather than just the means. This is not just applicable to article 2 inquests. If this is not amended then there is a strong likelihood that bereaved families will launch appeals against the coroner’s verdict.
Clause 12 – Outcome of investigation
Clause 12 (1) (a), which again refers to the ‘means’ by which a person died, should be amended to reflect the proposed amendment to clause 10 (1) (a).
APIL welcomes the provision contained in clause 12 (2) which provides for action to be taken to prevent ‘the recurrence of fatalities similar to that which is the subject of his investigation’. The fundamental problem, though, is that there is no statutory duty to follow up the findings of the coroner. As the bill is currently drafted, the coroner cannot compel people to report back to him on the measures they have taken to prevent a recurrence of the original incident. The association submits that clause 12 (2) should read:
‘A senior coroner who believes that action should be taken to prevent the recurrence of fatalities similar to that which is the subject of his investigation must report the matter….’
The responses should be published in a special section of the Lord Chancellor’s annual report laid before Parliament.
The prevention of similar deaths would be a crucial procedure for winning public confidence in the reformed coronial system. It would also help to ensure the Government’s stated aim of providing a better service for bereaved people is realised.
APIL also has concerns about some of the phraseology of the possible verdicts, as outlined in the explanatory notes. The continued use of ‘short-form’ verdictssuch as ‘misadventure’, ‘open’ and ‘accidental’ is archaic, alienates the general public and has no relevance to modern society. This is an excellent opportunity for the Government to modernise such outdated concepts and use language which has meaning to the relatives of deceased people. The needs of bereaved families would be better served by introducing ‘narrative’ verdicts as a matter of routine, making a series of findings on the facts leading up to the cause of death. APIL members and their clients have found such verdicts extremely helpful, and we are confident that any bereaved families who are consulted by the Government and who have experience of narrative verdicts will endorse this view.
Clause 13 – Juries at inquests
APIL believes it is the right of the bereaved family to request a jury.Bereaved families often regard the coronial system as emanation of the state and juries can introduce a welcome element of independence. APIL submits that the clause is badly drafted and could be improved to provide for greater clarity. The current wording of subsection 1, for instance, is too prohibitive and should allow for bereaved families to request an inquest with a jury.
APIL welcomes the statutory duty to hold an inquest with a jury in cases where the deceased died in prison or otherwise lawfully detained in custody’. As with clause 1, though, APIL believes that clause 13 (2) (a) should be amended to include people detainedin mental health institutions.
Chapter 3 – Suspension of investigations
Clause 17 – Suspension of investigation
APIL is concerned that, in many cases where criminal proceedings may be pending, the bereaved family is left in the dark as to the progress of any investigation. The procedure can be open-ended causing more distress. This could be resolved by a new subsection which would require the coroner to provide regular updates to the bereaved family.
Chapter 4 – Ancillary powers of coroners
Clause 26 – Post-mortem examinations
APIL welcomes subsections (2) and (3) and is in favour of the new provision in clause 27 (1) allowing the senior coroner to remove the body to any suitable place for a post-mortem. This will increase the efficiency of the service.
Chapter 5 – Miscellaneous
Clause 28/Schedule 1 – Appointment of senior coroners, area coroners and assistant coroners etc
APIL has fundamental concerns with the nomenclature of the new coronial system. The hierarchical structure of ‘senior coroners’, ‘area coroners’ and ‘assistant coroners’ is confusing and could lead to bereaved families losing confidence in the system. A bereaved family dealing with an assistant coroner, for instance, might feel its case was not being treated as seriously as those dealt with by an area coroner. APIL submits that there should simply be a coroner for a specific area - a ‘coroner for Nottinghamshire’, for example.
Clause 30 – Directions prohibiting publication of information
APIL welcomes the new power to ban publication of the name of the deceased but believes this power should be used by coroners when there is no ‘public interest’ in the information being released. A new subsection could be added to clause 30 specifying that the coroner must always have regard to the public interest.
Clause 33 – Provision of accommodation
The level of work in magistrate’s courts is currently decreasing and the association believes that coroners could share the same facilities. A feasibility study could be undertaken in order to ascertain whether this would be possible.
PART 4 - GOVERNANCE
Clause 59 – Report to the Lord Chancellor
APIL welcomes the provision of an annual report to the Lord Chancellor but believes clause 59 should also include a new subsection to provide for a review of the responses (or lack of responses) provided by organisations to coroner findings under clause 12 (2). It would also include details of those organisationswhich had failed to respond. This would increase pressure on organisations to take action to avoid needless injuries and deaths. It would also allowbereaved families, and the general public, to be able to identify the organisations which have taken the remedial action necessary to ensure fatalities do not recur in similar circumstances.
Clause 60 – Appeals to the Chief Coroner
APIL regards the new provision of a right to appeal to the Chief Coroner as a major improvement and fully supports the clause. One of the major complaints against the current coroner system is its lack of accountability. The right of appeal should help to remedy this situation.
Clause 63 – Coronial Advisory Council
APIL particularly welcomes the fact that the Government intends to ensure that ‘publicly recruited lay members who have had direct recent experience of bereavement’ will be members of the Coronial Advisory Council. Input from bereaved families is essential for public confidence in the new system to be maintained.
PART 5 – SUPPLEMENTARY
Clauses 66 and 67 allow the Lord Chancellor to issue regulations and coroners rules concerning issues such as the procedure at inquests and post-mortems. The Explanatory Notes to clause 74 state that all orders and regulations under the bill, apart from a couple of exceptions, will be made using the negative procedure.
APIL believes it is essential that the Government should publish any orders in draft form first to enable the widest possible consultation with stakeholders.
The detail of how appeals may be made to the Chief Coroner (clause 60), for instance, will be set out in rules issued under clause 67. This is a new procedure and APIL contends, therefore, that there should be input from interested and experienced organisations to ensure these rules are drafted correctly.
Schedule 5 Part 3 – Miscellaneous fees, allowances and disbursements
APIL strongly believes that bereaved families should not have to pay any fees for documents which they have requested from the coroner (section 8). It can be extremely distressing for bereaved people to request documents relating to the death of their relative and then be charged for the service. APIL submits that it is a basic human right for families to gain access to these documents free of charge and this should be stated in the schedule.
DRAFT CHARTER FOR BEREAVED PEOPLE
APIL welcomes the Government’s decision to publish a charter for bereaved people who come into contact with the coroner service but is concerned that there is no reference in the draft charter to the right to legal advice and representation.
At inquests, bereaved families often find themselves alone in the coroner’s court, while other parties usually appear with legal representation. Bereaved people who do not have access to a lawyerare likely to be seriously disadvantaged in such circumstances and there is far less chance that the relatives will be satisfied with the outcome. This could jeopardise public confidence in the new system.
Funding of legal advice for bereaved relatives is a particular concern and we believe the power to award public funding for bereaved relatives should lie with the coroner, following application to the coroner from the bereaved. The experience of APIL members is that provision of exceptional funding is very limited and that many ‘borderline’ cases are denied funding which leaves bereaved relatives in an intolerable position. Any recommendations for funding from the coroner should be binding on the Legal Services Commission.
The Charter should also be extended to set down a time limit for holding an inquest. It is not unusual for inquests to be held in excess of 12 months from the date of death. In line with other consumer charters, a suitable maximum time frame for the inquest should be specified as it does not help a bereaved family to come to terms with the situation when there has been no conclusion to the proceedings.
ADDITIONAL EXPLANATORY NOTES
Financial effects of the bill
The new coronial system will be resourced at a local level rather than funded centrally. APIL has real concerns that local authorities will provide different levels of funding, leading to different standards of service. This will negate one of the key reasons for reforming the system in the first place. The Government, in the foreword to the draft bill, states:
“The coroners’ system at present is fragmented, non-accountable, variable in its processes and its quality”.
APIL contends that funding by local authorities will not solve these inherent problems and, therefore, the new system must be funded centrally by the Department for Constitutional Affairs. The constitutional affairs committee, in its recent report on ‘Reform of the coroners’ system and death certification’ (HC 902), focussed on this issue:
“We further recommend that the Government should reform the structure of the coronial system by creating a national service with centralised and adequate funding so that all coroners are able to work to the same high standards.”
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