CORONERS' COURTS OXFORD UNIVERSITY PRESS. Second edition A GUIDE TO LAW AND PRACTICE CHRISTOPHER DORRIES

Transcription

1 CORONERS' COURTS A GUIDE TO LAW AND PRACTICE Second edition CHRISTOPHER DORRIES OXFORD UNIVERSITY PRESS

2 CONTENTS Dedication Foreword Acknowledgements Preface Table of Cases Tables of Legislation Table of Abbreviations v vii ix xi xxix xxxvi xlv 1. THE CORONER Introduction 2 The Office of Coroner Creation of the Office The Medieval Coroner Early Duties Development of the System Modern Developments The Last 30 Years Review of the Coroner System The Shipman Inquiry 9 The Independence of the Coroner Importance of Independence The Local Authority Central Government Coroners' Service Model Charter 13 Qualification and Appointment Qualification Appointment Removal from Office Resignations Salary Arrangements Part-time Coroners Deputies Coroner of the Queen's Household The Courts and Legal Services Act Immunities 20 xv

3 Financing and Staffing 1.24 Payments by Councils 1.25 Types of Payment 1.26 Staffing Coroners' Districts 1.27 Statistics 1.28 Division of a County 1.29 Alteration of Coroners' Districts The Coroner's Officer 1.30 Introduction 1.31 Civilianization 1.32 Manner of Work Summary JURISDICTION 2.01 Introduction 2.02 The Legislation 2.03 Exceptions to Jurisdiction The Body of a Person 2.04 Introduction 2.05 Human Remains 2.06 Remnants of a Body 2.07 Foetus 2.08 Death 2.09 Persistent Vegetative State 2.10 Switching off Ventilators 2.11 If No Body Exists Territorial Considerations Deaths at Sea or in the Air 2.13 Territorial Transfers 2.14 Deaths Abroad 2.15 Deaths in Scotland Statutory Jurisdiction 2.16 Sufficient Grounds for Inquiry 2.17 Violent Death 2.18 Unnatural Death 2.19 The Thomas Case 2.20 The Touche Case 2.21 Conclusion 2.22 Unnaturally Contracted and Rare Diseases 2.23 Sudden Death of Cause Unknown XVI

4 2.24 Prison and Police Deaths Functus Officio Removal out of England and Wales 48 Summary REPORTING DEATHS Introduction The Problem 50 The Duty to Report a Death The Necessity to Report Sources of Referrals Common Law Duty upon all Citizens Common Law and Statutory Offences NHS Responsibilities Statutory Requirements upon a Doctor Recognized Practice Regulation 41 the Registrar's Obligation The Anomaly of Regulation Written Advice 60 Ability to Recognize Hospital Deaths General Practice Conclusion 61 Reportable Deaths Practical Guidance Old Age Osteoporosis Reporting Medical Deaths Comparison with the Scottish Requirement A Simplified Guide to Reportable Deaths 69 Conclusion Common Errors Sources of Advice 71 Summary DECISIONS AND INQUIRIES Introduction 74 Death Certification Certifying Deaths A Confusion of Terminology Issue of Papers for Registration and Disposal by a Doctor The Chain of Causation 76 xvn

5 The Decision to Inquire 4.05 Introduction 4.06 Lack of Information 4.07 Referrals not Requiring a Post-mortem Examination 4.08 Recording Cases that do not Require Further Investigation 4.09 Referrals where the Cause of Death is Unknown 4.10 Deaths which are Clearly Violent or Unnatural The Decision to Hold an Inquest 4.11 Introduction 4.12 Extent of Inquiries before the Decision is Made 4.13 Basis of the Decision 4.14 The Question of Discretion Ancillary Decisions 4.15 Organ Donation and Transplants 4.16 Power of Exhumation 4.17 Removal out of England Procedural Matters 4.18 Introduction 4.19 Form 100A Procedure 4.20 Form 100B Procedure 4.21 Additional Information 4.22 Statistics Release of the Body 4.23 The Coroner's Right to Possession 4.24 Disputes 4.25 Criminal Cases 4.26 Deceased without Relatives or Funds Disposal of the Body 4.27 Registration 4.28 Burial 4.29 Cremation 4.30 Bodies Returned from Abroad 4.31 Removal out of England and Wales Suspicious Deaths 4.32 Introduction 4.33 Notification of the Death 4.34 Examination of a Scene, or of the Living 4.35 The Right to Choose the Pathologist 4.36 Who Can Attend the Post-mortem? 4.37 The Second Post-mortem 4.38 Transplant Cases xvin

6 4.39 Opening and Adjourning the Inquest Section Resuming the Inquest 104 Human Rights The Human Rights Act Interpretation of Convention Rights Article 2: The Right to Life Article 6: The Right to a Fair Trial Article 8: The Right to Private and Family Life Article 9: Freedom of Thought, Conscience, and Religion 109 Summary THE CORONER'S POST-MORTEM Introduction 112 The Power to Order an Examination Possession and removal of the body Necessity for Examination The Modern Trend Questioning the Need? Section 19 Post-mortem Without Inquest Section 20 Post-mortem with Inquest Section 20 Special Examinations Section 21 The Power to Summon Medical Witnesses Power of a Jury under Section Retention of Tissue Rules 9 and Second Examinations Request by the Family Second Examinations Homicides Testing for Other Purposes 123 Families and the Post-mortem Examination Introduction Information about the Autopsy to Families Objections to Post-mortem Examination Information about Tissue Retention Tissues Retained Indefinitely Return of Tissues Criminal Cases 130 Before the Post-mortem Examination Necessity for a Full History Choosing the Pathologist Suitable Premises Notification of Post-mortem Considering Alternatives The Limited Autopsy Considering Alternatives The Non-invasive Autopsy 136 xix

7 The Post-mortem Examination 5.27 Nature of the Examination 5.28 Identification 5.29 Who should Eviscerate the Body? 5.30 Process of the Examination 5.31 Taking Histology and Toxicology Specimens 5.32 Interpreting the Post-mortem 5.33 Difficulties of Interpretation 5.34 Release of Bodies Special Examinations 5.35 Toxicology 5.36 Histology 5.37 Neurological Cases 5.38 Industrial Lung Diseases 5.39 Payment The Post-mortem Report 5.40 Need for Accuracy 5.41 Clinical History 5.42 The Summary and Conclusion 5.43 Delay in Submitting the Report 5.44 Release of the Report The Pathologist s Evidence at Court 5.45 Documentary Evidence 5.46 Preparation for Court 5.47 Giving Evidence 5.48 Change of Opinion 5.49 When Should the Pathologist Give Evidence? Summary 6. PREPARING FOR THE INQUEST 6.01 Introduction The Coroners Preparation 6.02 The Coroner's Responsibility 6.03 The Investigation 6.04 Choosing the Witnesses 6.05 Plans and Photographs 6.06 Viewing the Scene 6.07 Pre-inquest Review Notification of Hearing 6.08 The Family and Other Interested Persons 6.09 Persons whose Conduct may be Called into Question XX

8 6.10 The Press Warning the Witnesses Witness Summonses Compelling Production of Documents 163 Releasing Documentation before the Inquest The Post-mortem Report Statements of Witnesses who will give Oral Evidence Disclosure of Witness List Release of Documentary Evidence Deaths in Custody Disclosure by the Authorities Reports from NHS Staff Health Records Privileged Documents 169 Preparing a Report or Statement The Legal Position Who May See the Report Contents of the Report Seeking Legal Advice 173 The Advocate Taking Instructions Contact with the Court Applications for Funding Briefing the Client Final Arrangements 178 The Witness The Dangers Two Weeks before Court The Day before Court On the Day of the Inquest 181 Summary INQUESTS 7.01 Introduction The Purpose of the Inquest 7.02 The Coroner's Remit 7.03 The Meaning of'how' 7.04 The Conflict with Rule The Nature of the Inquiry 7.06 Increased Scope where Article 2 is Engaged 7.07 Rule 43 Prevention of Similar Fatalities 7.08 Overall Purpose of the Inquest XXI

9 A Public Hearing 7.09 Who May Take Part 7.10 Nature of the Right to Ask Questions 7.11 Representation 7.12 Inquest to be Held in Public 7.13 Screening of Witnesses 7.14 The Press 7.15 Photographs and Tape Recorders Preliminaries 7.16 Opening the Inquest 7.17 Adjournments under Section The Order of Witnesses 7.19 Presence of Witnesses in Court 7.20 Inquests Heard by Deputy Coroner 7.21 Coroner Sitting with an Assessor 7.22 Others on the Bench 7.23 Counsel to the Inquest 7.24 Joinder of Inquests 7.25 Bias 7.26 Legal Aid Taking the Evidence 7.27 Formalities 7.28 Initial Matters 7.29 Evidence to be Given on Oath 7.30 Notes to be Taken of the Evidence 7.31 Questioning of Witnesses by the Coroner 7.32 Questioning of Witnesses by Advocates 7.33 Questioning of Witnesses by Unrepresented Persons 7.34 Evidence Differing from Statement 7.35 Child Witnesses 7.36 Evidence that is Likely to be Distressing 7.37 Submissions on Law to Coroner 7.38 Criminal Offences Apparent during Evidence Requirement to Answer Questions 7.39 Competence and Compellability 7.40 The General Rule Witnesses Must Answer Questions 7.41 Giving Evidence Documentary Evidence 7.42 Documentary evidence Rule Requirements for Using Documentary Evidence 7.44 Suicide Notes xxn

10 Keeping Order in Court 7.45 Failure of Witness to Attend 7.46 Failure of Witness to Answer Questions 7.47 Disorder in the Courtroom Evidential Matters 7.48 Introduction 7.49 The Coroner's Discretion 7.50 Relevance of Evidence 7.51 Admissible Evidence 7.52 Opinion Evidence 7.53 Evidence of Character 7.54 Documents Concluding the Inquest 7.55 Delivering the Verdict Summary JURIES The Problems Historical Perspective 232 The Requirement to Call a Jury Deaths in Prison Police Deaths Deaths Reportable to a Government Department Deaths Concerning Public Safety Persons Detained under the Mental Health Act Reason for Summoning Jury becoming Apparent Coroner's Discretionary Power Opening an Inquest without a Jury Deaths Abroad 240 Administrative Matters Warrant to Summon a Jury Summoning a Jury Composition of the Jury Insufficient Number of Jurors Present Failure of Juror to Answer Summons 242 The Jury in Court The Role of the Jury Preliminary Matters Objection to a Particular Juror Introducing the Case before a Jury Power to Discharge a Juror 244 xxni

11 8.22 Length of Sitting Allowing the Jury to Ask Questions Viewing the Scene No Person to Address the Jury Seclusion of the Jury Unanimous and Majority Verdicts Recording the Verdict 248 Summing Up Introduction The Purpose of the Proceedings Rules 36 and Questions to be Answered on the Inquisition Sheet Verdicts to Consider Issues for the Jury Standard of Proof Summary of the Important Points of Evidence Assessing the Evidence Issues of Causation Advice as to the Jury's Task The Right to Ask for Further Advice Documentation in the Jury Room 255 Summary THE VERDICT Introduction The Problem with Verdicts Differences of Approach No Definitive List of Verdicts The Future 260 The Standard of Proof The Standard of Proof Conclusion as to the Death The Standard of Proof Other Matters 261 Requirements of the Inquisition Name of the Deceased Cause of Death Statement of Circumstances Conclusion as to the Death Particulars under the Registration Act 265 Limitations of the Verdict Rule Criminal Liability Civil Liability The Duty to Inquire A Conflict with Rule 42? 266 xxiv

12 Common Verdicts Natural Causes Accidental Death Neglect Misadventure Suicide Open Verdict Drugs Deaths Industrial Disease Less Common Verdicts Narrative Verdicts Introduction The Jamieson Case The Meaning of'gross Failure' Causation Recent Developments Summary System Neglect Background The Amin and Middleton Judgment Post-Middleton Summary 288 Unlawful Killing Scope of the Verdict Road Traffic Offences Involuntary Manslaughter Effect of an Unlawful Killing Verdict Involuntary Manslaughter The Future 293 Summary AFTER THE INQUEST Introduction 296 Administrative Matters Form 99 Certificate after Inquest and Registration Notification to Inspectors and Government Departments Payment of Fees and Expenses Upkeep of Register and Annual Return 297 Judicial Review Introduction The Statutory Remedy under the Coroners Act The General Provisions under the Supreme Court Act 300 xxv

13 Rule 57 Supply of Documents Introduction Register of Deaths Retention of Exhibits Retention of Records Rule 57 The Supply of Documents Reports of Post-mortem and Special Examinations Transcripts and Notes of Evidence Documents put in Evidence at an Inquest Other Documents The Press Researchers Data Protection and Tracing Inquiries The Aftermath of the Inquest Summary Introduction Debriefing the Client Dealing with Press or Media Rule 43 Reports Admissibility of Evidence given at the Inquest DISASTERS Other Reading 314 What Makes a Disaster Special Demands The Coroner's Overall Responsibilities 316 Preparing for Disaster Establishing Key Relationships The Police The Other Services 'The Advocates' The Concerns of the Relatives Summary 322 Temporary Mortuaries Need for a Special Facility The Supervising Pathologist The Major Disaster Advisory Team Purpose ofa Temporary Mortuary Procedures 325 XXVI

14 11.15 Requirements of the Temporary Mortuary Temporary Mortuary Plan Planning for Radiography at the Temporary Mortuary 328 Dealing with the Disaster The Role of the Coroner in the Early Stages Site Visit Mortuary Arrangements The Decision to Open a Mortuary Recovering Bodies The Body Holding Area Post-mortem Procedures Extent of the Examination Viewing by Relatives 336 Identification The Difficulties Senior Identification Manager Use of Family Liaison Officers The Identification Commission The Release of Bodies Identification Features 344 Conclusion The Inquest and the Public Inquiry Expectations 347 Summary TREASURE Historical Perspective The Treasure Act Requirement to Declare Finds Definition of Treasure Definition of'the Same Find' Items that have been Lost or Ritual Deposits No Requirement for a Jury Procedure on a Find being Made Procedure if Objects Disclaimed Procedure at a Treasure Inquest Procedure if the Find is Declared Treasure Speed of Handling Cases 356 Summary 356 XXVll

15 Appendices OPCS Guidance on Referral The Jamieson Case Review of Vost-Jamieson cases Definition of death ofa member of the public during or following Police contact for the purposes of reporting by the Police to the Home Office Coroners Act The Coroners Rules The Coroners' Records (Fees for Copies) Rules Treasure Act Index 437 XXVlll