Tuesday, 18 February 2014

Guidance on Pre Inquest Review Hearings

In Ernest Andrew Brown (Claimant) v HM Coroner for Norfolk (Defendant)& Chief Constable of Norfolk (Interested Party) [2014] EWHC 187 (admin), the High Court (Pitchford LJ and HHJ Thornton QC (Chief Coroner for England and Wales) gave guidance to Coroners on the handling of pre-inquest review hearings (“PIRs”), writes Rachel Galloway of Kings Healthcare Team.

The Claimant (the stepfather of the deceased) made an application under s 13(1)(b) of the Coroners Act 1988 (as amended) for an order that an inquest into the death of Joanne Foreman be quashed and a fresh investigation be held. 

It was common ground that the police investigation into the circumstances of Ms Foreman’s death was inadequate.  At inquest, the coroner was unable to find the cause of death and recorded a narrative verdict accordingly.  The PIR proceeded upon the assumption that although the precise cause of death could not be ascertained, the self-ingestion of insulin and alcohol may well have been the cause (a view put forward by an expert).  After the full inquest had concluded it became apparent that this assumption was incorrect.  The Paramedic team who attended upon the deceased had taken a blood glucose analysis and the reading was found to be entirely normal.  This reading had not been brought to the expert’s attention and expert evidence was subsequently obtained which concluded that insulin had played no significant role on the deceased’s death.

It was held that as a result of the blood sugar finding by the paramedics not being available to the Coroner, the medical side of the investigation into the death of Joanne had set off on the wrong track and never got back on track.  The absence of the finding was so significant that it was desirable and in the interests of justice that a fresh investigation and inquest be held.

However, HHJ Thornton QC went on to give some wider guidance to Coroners on the handling of PIRs.  He endeavoured to identify “potential pitfalls” which could be avoided by good practice.

He noted that the status of the PIR is now enshrined in Rule 6 of the Coroners (Inquest) Rules 2013 (which came into force from the 25th July 2013 for investigations started before and since).  Rule 6 permits the Coroner to hold a PIR ‘at any time during the course of an investigation and before an inquest’.  Rule 26 of the 2013 Rules requires a coroner to make and keep a recording of a PIR hearing.  In the present case, large parts of the recording was not available due to apparent equipment failure.  HHJ Thornton QC stated at paragraph 38 of the Judgment (in respect of Rule 26):

“This requirement means that a coroner conducting such a hearing should take reasonable steps to ensure that the recording equipment is working well and that those who speak in court do so in such a way that the recording can be transcribed with accuracy and in full.  An incomplete transcript is not helpful.  It may open the door (as in this case) to allegations of tampering and deliberate and fraudulent removal of key questions and answers”. 

Further, HHJ Thornton QC made the following points:

(1)          In each case the Coroner should ensure that all interested persons (particularly bereaved families) have sufficient notice of the matters to be discussed at the PIR (where held);

(2)        Coroners should provide a written agenda in advance and, if appropriate, express provisional views so that agreement or opposition can be expressed;

(3)          The agenda should include:

(a)  A list of interested persons;
(b)  A proposed list of witnesses identifying those who may be called and those whose statements may be read;
(c)   The issues to be considered at the inquest;
(d)  The scope of the evidence;
(e)  Whether a jury will be required;
(f)    Whether Article 2 is engaged;
(g)  Any issues of disclosure;
(h)  The date of the final hearing;
(i)    Any other relevant matters. 

(4)          In a complex or difficult investigation, Interested Persons should be invited to respond to the Coroner’s agenda in advance of the PIR hearing in writing, stating what they agree with and what they do not agree with;

(5)          The Coroner should ensure that Interested Persons (particularly those unrepresented) have sufficient disclosure of the relevant statements and documents before the PIR hearing so as to be able to address the agenda on an informed basis (in the present case, HHJ Thornton QC was concerned that the Claimant may not have had access to the Post Mortem Report or the Toxicology Reports prior to the PIR hearing);

(6)          Coroners should avoid giving the impression at a PIR hearing (and in any documentation supplied before it) that the findings and conclusions of the inquest are in any way pre-determined, even when the evidence points substantially in one direction.  It may be necessary to explain in clear language to unrepresented families that there is a difference between seeking to identify the key issues and coming to a final conclusions;

(7)          Coroners should at all times take care in their dealings with interested parties not to give the impression of bias or favouritism.  It appears that the Claimant and his wife had overheard the Coroner and Police discussing the deceased prior to the commencement of the PIR hearing.  The Claimant asserted that he had overheard the Detective Chief Inspector referring to the deceased as aggressive, suicidal and drunk and describing the Claimant as difficult.  HHJ Thornton QC stated that Coroners may need to communicate with police officers investigating on their behalf, but their communications, whether oral or written, should be made in such a way that they will not engender concern to others that their interests are being treated as secondary;

(8)          Coroners should be careful in correspondence with an Interested Person, such as the police, not to appear too familiar or too close to the correspondent and not encourage the same from the correspondent, even though the Coroner may know the correspondent well during the course of coroner work.  He goes on: “Even the use of first names may not look good to an outsider, particularly to somebody of the older generation”;

(9)          Coroners should only write letters (and emails) in the course of their work which will stand the test of looking fair and unbiased if and when read out in court in litigation. 

Report by Rachel Galloway

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