The Coroners and Justice Act 2009

Transcription

1 The Coroners and Justice Act 2009 Alex Ruck Keene Barrister, 39 Essex Street July 2010 Coroners and Justice Act paper Alex Ruck Keene, 39 Essex Street July

2 Introduction 1. This paper 1 provides an overview of Part 1 of the Coroners and Justice Act 2010 ( the Act ). Quite when this Part will now be brought into force is a matter which has recently been thrown into doubt. A consultation was opened on and closed on on the policy which was intended to inform the drafting of the secondary legislation relating to Part 1 and the guidance which flows from it; at that stage, the intention was that a second consultation paper would be issued in early 2011 to include draft rules and regulations, with a view to finalising those rules and regulations during the second half of However, on stakeholders were told by the Deputy Director responsible for Coroners, Burials and Legal Services Regulation and Redress that: [w]e know that many of you are awaiting, with keen interest, the announcement of the appointment of the first Chief Coroner for England and Wales. The new Lord Chancellor and Secretary of State for Justice has considered this and in the light of the financial challenges facing Government as a whole, has asked that no announcement be made at this time. He has also asked that my team review the scope and timing of the plans to implement the coroner measures contained in Part One of the Coroners and Justice Act 2009, and to provide further advice to him and to the Minister responsible for coroner reform, Jonathan Djanogly MP In the circumstances, the prospect of Coroners Rules and Regulations being published even in draft form in the short to medium-term would seem to have receded substantially. However, lest it be thought that this renders this paper and this topic entirely academic, it is important to note that the Courts have already started to refer to this Part of the Act in their judgments, 4 such that a working knowledge of at least the general structure of this Part and of the key changes that it has implemented is necessary for practitioners and others appearing before coroners under the current system. 1 Which is based in significant part upon the annotations drafted by the author for the version of the Coroners and Justice Act 2009 which appeared earlier this year in the Sweet & Maxwell Current Law Series. It takes into account, where relevant, the approach outlined by the previous administration in its consultation paper Reform of the Coroner System Next Stage: Preparing for implementation at ( the Consultation Paper ). As such, it may have to be caveated by the fact that the present Administration may take a different view upon the mechanics of implementation, over and above the timing issue addressed in the paragraphs that follow. 2 Footnote 1 above. 3 See the website of Inquest at 4 See Annex 1. Coroners and Justice Act paper Alex Ruck Keene, 39 Essex Street July

3 Background 5 4. By the time that the Bill that became this Act was introduced into Parliament in January 2009, there was a common recognition that the law relating to coroners and death certification was in need of considerable reform. An independent review of death certification in England, Wales and Northern Ireland, established in 2001 and chaired by Tom Luce, reported in June 2003 with detailed recommendations for a comprehensive reform of both systems, underpinned by a change to a full-time coroner service, and the introduction of a Family Charter (with legal effect). 6 One month later, Dame Janet Shipman published her Third Report following from the Shipman Inquiry, concluding (at page 23) that the then-current arrangements for death and cremation certification and the coronial system require[d] radical change 7 5. The Government s proposals for change were initially set out in a position paper published by the Home Office in March 2004, Reforming the Coroner and Death Certification Services, 8 and were then taken forward in a draft Bill published by the Government in June The bill was accompanied by a draft charter for bereaved families a key recommendation of the Luce report. Introducing the draft Bill, the Government recognised that the coroner s system was: fragmented, non-accountable, variable in its processes and its quality, ineffective in part, archaic in its statutory basis, and very much dependent on the good people working in it, or resourcing it, at present for its continued ability to respond to the demands we place upon it. (Coroner Reform: The Government s Draft Bill, CM 6849, 12 June 2006 at p.4. 9 The draft Bill was the subject of scrutiny, inter alia, by invited families with recent experience of the inquest system, was included in the draft legislative programme set out by the Prime Minister in July 2007, but was not ultimately included in the Queen s speech at the opening of the session of Parliament. 5 A helpful and very comprehensive introduction to the developments leading to Part 1of the Act is provided in the Research Paper Coroners and Justice Bill: coroners and death certification prepared by the House of Commons Library on 22 January 2009 to support Members of Parliament in their consideration of the Act (Research Paper 09/07, Coroners and Justice Act paper Alex Ruck Keene, 39 Essex Street July

4 6. The draft Coroners Bill was the subject of criticism for failing to include any provisions designed to reform the system of death certification or to provide for an independent check on the cause of every death, a key recommendation of the Shipman Inquiry, and included in the Home Office position paper. The Department of Health subsequently (in July 2007) conducted a separate consultation on death certification 10 and the Government in the same month also consulted on the reform of the duty to report deaths to coroners and the modernisation of the cremation regulations The Government included a portmanteau bill dealing with both coroners and death certification in its draft legislative programme for , but decided to implement modernisation of the cremation regulations independently of the reform of the system of death certification more generally, and published the Cremation (England & Wales) Regulations 2008 (SI 2008/2841) in November 2008, which came into force on 1 January A further consultation was carried out in April 2008 regarding sensitive reporting in coroner s courts. 12 The Government concluded that the Press Complaints Commission Code would not be amended and that instead consideration would be given to finding ways of drawing the Code to the attention of the bereaved families. The response to the consultation was published on 14 January A final twist in the legislative tale came in the form of clauses introduced in what is now the Counter-Terrorism Act 2008, the precursors to s. 11 of (and Paragraphs 3 and 4 of Schedule 1 to) of the current Act. These clauses, making provision for the holding of inquests without juries in specified circumstances, had not been consulted upon previously and were extremely controversial. In the face of sustained criticism from, inter alia, the Joint Committee on Human Rights and the Justice Committee, the Government acceded at Committee stage in the House of Lords to pressure for these provisions to be removed and to be considered instead in the context of a more general coronial reform. 10. With the marked exception of what became paragraphs 3 and 4 of schedule 1, Part 1 of the Act was generally welcomed by the Opposition parties: Henry Bellingham MP (Shadow and respectively Coroners and Justice Act paper Alex Ruck Keene, 39 Essex Street July

5 Minister for the Department for Constitutional Affairs) declaring at Second Reading in the House of Commons that Part 1 is about snakes and ladders; the Government have put in place some good ladders and we praise them for that, but there is a nasty snake that may come crashing down in clause 11. Hansard, Official Report, col.118 (January 26, 2009). Debate during the course of its passage (and during the ping-pong stages) concentrated upon the Government s proposals for secret inquests and upon the provision of suitable coroners to preside over inquests into the deaths of military personnel; other issues of concern included, in particular, the question of legal aid for the families of the deceased, ultimately addressed by way of a Government concession at s.51. General comments upon Part Part 1 reforms the law in relation to coroners and to the certification and registration of deaths. It replaces the existing framework for the investigation of certain deaths by coroners in the Coroners Act 1988 ( the 1988 Act ). The Act introduces a Chief Coroner to lead the service, with powers to intervene in cases in specified circumstances, including presiding over an appeals process designed specifically for the coroner system. The Act also re-titles a number of positions in the old coronial system; by ss and Schedules 2-3, coroners are now retitled senior coroners, whilst deputy coroners become area coroners and assistant deputy coroners become assistant coroners. Following debates in the House of Commons, the Government introduced in the House of Lords the post of Coroner for Treasurer (together with Assistant Coroners for Treasure), thereby reviving a proposal originally to be found in the draft Coroners Bill published in 2006 but which had initially been absent from the 2009 version. 12. Much of the Coroners Act is re-enacted in Part 1 and its associated schedules, although in recast form. The Government s position is that [t]he introduction of medical examiners will remove a considerable volume of work from coroners, enabling them to focus their resources on the cases for which they have jurisdiction. We estimate that once the role of medical examiner beds down, some 130,000 to 150,000 deaths per year will be referred to coroners, rather than the approximately 235,000 cases per year which are reported to them under the present arrangements: the Parliamentary Under-Secretary of State, Ministry of Justice (Lord Coroners and Justice Act paper Alex Ruck Keene, 39 Essex Street July

6 Bach) at Committee stage in the House of Lords (Hansard, Official Report, col.564 (June 9, 2009) It is perhaps worth noting a few provisions which appeared in the draft Bill published in 2006 but which did not then appear when the Bill which became this Act was introduced in January 2009, namely: (1) a power granted to coroners to impose reporting restrictions; (2) restrictions upon the circumstances under which a coroner would be required to investigate deaths abroad (for instance where it would add nothing to the knowledge of how someone died); and (3) a statutory scheme for the administration of complaints against coroners. 14. The Government resisted the creation of a national coroners service (a recommendation of both the Luce Report and the Shipman Inquiry Third Report). The rationale for this was given by Bridget Prentice (Under-Secretary of State for Justice) in Public Bill Committee as follows: [w]e think that having a national chief coroner who can set standards and give guidance and direction will raise standards across the board, because in the past there has been a great differential in the different coronial areas. On the whole in the consultations it was felt that keeping a localised service was still what most people preferred. It will therefore be funded locally, as it is now, by local authorities or police authorities. However... money will be forthcoming from the Department in setting up the service. There will be something in the region of 10 million in set-up costs and another 6.5 million in annual running costs, so we shall be putting in a substantial amount of money to ensure that the service makes the kind of difference that we want it to make for bereaved people. Hansard, Official Report, Coroners and Justice Bill Public Committee, col.14 (February 3, 2009). 15. Coroners Rules to be made under s.45 of the Act will provide further detail as to the mechanics of inquests. As at the time of writing, these Rules had not been published in draft form (nor had regulations to be made under ss.43 and 44); there is no indication as to when they will be published. Key sections Chapter 1 14 Note, though, that there will be a reduction in the number of deaths reported to coroners, it is likely that the actual workload across the system will remain at about the same level because of other obligations introduced by the Act and the Charter for Bereaved People: Consultation Paper at p.9. Coroners and Justice Act paper Alex Ruck Keene, 39 Essex Street July

7 Section Section 1, entitled duty to investigate certain deaths provides in material part as follows: (1) A senior coroner who is made aware that the body of a deceased person is within that coroner s area must as soon as practicable conduct an investigation into the person s death if subsection (2) applies. (2) This subsection applies if the coroner has reason to suspect that (a) the deceased died a violent or unnatural death, (b) the cause of death is unknown, or (c) the deceased died while in custody or otherwise in state detention. (3) Subsection (1) is subject to sections 2 to 4. (4) A senior coroner who has reason to believe that (a) a death has occurred in or near the coroner s area, (b) the circumstances of the death are such that there should be an investigation into it, and (c) the duty to conduct an investigation into the death under subsection (1) does not arise because of the destruction, loss or absence of the body, may report the matter to the Chief Coroner. (5) On receiving a report under subsection (4) the Chief Coroner may direct a senior coroner (who does not have to be the one who made the report) to conduct an investigation into the death. (6) The coroner to whom a direction is given under subsection (5) must conduct an investigation into the death as soon as practicable. This is subject to section Section 1, based on s.8 of the 1988 Act, re-casts the old duty to hold an inquest into certain categories of death into a duty to investigate certain deaths, thereby reflecting the fact that a very large majority of those deaths reported to a coroner do not result in an inquest being held. 18. The coroner s duty to investigate a death is triggered by virtue of being made aware of the body of the deceased person being located within his or her area. Where the death actually occurred is largely irrelevant to the triggering of that duty, although if the body were moved after death from one area to another, the duty would apply only to the first coroner to whom the report was made. That also applies to deaths that occur overseas a matter that I know is of concern to many noble Lords but where the body is repatriated to England and Wales. In Coroners and Justice Act paper Alex Ruck Keene, 39 Essex Street July

8 such cases, the duty to investigate the death lies with the coroner within whose jurisdiction the body is returned: the Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bach) at Committee stage in the House of Lords (Hansard, Official Report, col.564 (June 9, 2009). The position is, in other words, essentially similar to that which prevailed under ss.5(1) and 8(1) of the 1988 Act). 19. The categories of deaths requiring investigation are the for the most part the same as those in s.8(1) of the 1988 Act, although (1) the requirement in s.8(1)(b) of the 1988 Act that death whose cause is unknown be sudden has been replaced by a requirement merely that the death be of an unknown cause; and (2) the reference to an inquest in s.8(1)(c) of the 1988 Act to an investigation being mandated when a death occurred in prison has been replaced with a provision mandating an investigation whenever a person dies in custody or otherwise in state detention (defined in s.48(2) as being compulsory detention by a public authority within the meaning of s.6 Human Rights Act 1998). This latter provision widens the scope of the investigatory duty to mandate investigations in the deaths of those detained under the Mental Health Act 1983 (as amended). Arguably the wording of s.1(2)(c) of the Act would also mandate the investigation of the death of an incapacitated adult who had been deprived of their liberty by virtue of the operation of the regime established by the Mental Capacity Act 2005 (see, for further details of this regime, Mental Capacity: A Guide to the New Law (2nd edition, Law Society Publishing, 2008), at least where the deprivation of that liberty had included provision for the adult to be prevented from leaving the care home or hospital where they had been treated or cared for. 20. Section 1 is subject to s.2 which provides coroners (as before) with the ability to request a transfer of an investigation to another area and s.3, which allows the Chief Coroner to direct such a transfer A decision taken by a senior coroner as to whether to conduct an investigation will be subject to appeal to the Chief Coroner under s Subsections 1(4-6) largely mirror s.15 of the 1988 Act, and provide a mechanism by which a senior coroner can seek the permission of the Chief Coroner (as opposed, under the old regime, the Secretary of State) to conduct an investigation into a death which merits such 15 Transfer is discussed in some detail in the Consultation Paper at pp.22ff. Coroners and Justice Act paper Alex Ruck Keene, 39 Essex Street July

9 investigation but where there is no body present in the senior coroner s area. The coroner who makes the reference may not necessarily be the one who is then directed under subs. 6 to conduct the investigation; such would be the usual course of events, but an example given in the Explanatory Notes for a different course of action being taken would be if it would be more convenient for the bereaved relatives were the investigation to take place in an alternative area. Section Section 2, entitled request for other coroner to conduct investigation provides in relevant part: (1) A senior coroner (coroner A) who is under a duty under section 1(1) to conduct an investigation into a person s death may request a senior coroner for another area (coroner B) to conduct the investigation. (2) If coroner B agrees to conduct the investigation, that coroner (and not coroner A) must conduct the investigation, and must do so as soon as practicable. (3) Subsection (2) does not apply if a direction concerning the investigation is given under section 3 before coroner B agrees to conduct the investigation. (4) Subsection (2) is subject to (a) any direction concerning the investigation that is given under section 3 after the agreement, and (b) section 4. (5) A senior coroner must give to the Chief Coroner notice in writing of any request made by him or her under subsection (1), stating whether or not the other coroner agreed to it. 24. Section 2 largely mirrors s.14(1) of the 1988 Act, allowing a coroner to request a coroner for another district to assume jurisdiction over the inquest (now investigation). A new provision in subs.5 requires that the chief coroner be notified that a request has been made: this will allow monitoring of the pattern of requests made by individual senior coroners. 25. In general, the policy on military deaths is that single deaths will be transferred, but multiple deaths will not: Hansard, Official Report, Coroners and Justice Bill Public Committee, c.162, per Bridget Prentice, Parliamentary Under-Secretary of State for Justice (February 10, 2009). Coroners and Justice Act paper Alex Ruck Keene, 39 Essex Street July

10 26. The apportionment of costs in such transferred cases will be provided for in regulations to be made under paragraph 9 of Schedule 7 to the Act. See also the commentary to section 3 below. 27. This section does not extend to treasure investigations, because senior coroners, area coroners and assistant coroners have no functions in relation to objects that are or may be treasure or treasure trove (s.26(6)). Section Section 3, entitled direction for other coroner to conduct investigation provides in material part as follows: (1) The Chief Coroner may direct a senior coroner (coroner B) to conduct an investigation under this Part into a person s death even though, apart from the direction, a different senior coroner (coroner A) would be under a duty to conduct it. (2) Where a direction is given under this section, coroner B (and not coroner A) must conduct the investigation, and must do so as soon as practicable. (3) Subsection (2) is subject to (a) any subsequent direction concerning the investigation that is given under this section, and (b) section 4. (4) The Chief Coroner must give notice in writing of a direction under this section to coroner A. (5) A reference in this section to conducting an investigation, in the case of an investigation that has already begun, is to be read as a reference to continuing to conduct the investigation. 29. Section 3 builds upon s.14(2) of the 1988 Act, except that the power to make a direction is transferred from the Secretary of State to the Chief Coroner. As clarified in the Explanatory Notes, the Government intends that the provision will be used to enable the Chief Coroner to take control and respond effectively to an emergency situation, or to re-allocate work between coroners in the event of backlogs of work building up in a particular area. The Government has expressed the clear view in the Explanatory Notes that re-allocations to prevent backlogs Coroners and Justice Act paper Alex Ruck Keene, 39 Essex Street July

11 should take account of the needs of bereaved relatives for both a prompt investigation and one that remains fairly local to them. 30. The funding arrangements will be set out in regulations to be made under paragraph 9 of Schedule 7 to the Act. The Government clarified at Report Stage in the House of Lords that there will be a general rule for transferred cases subject to two exceptions: Hansard, Official Report, c.713, per Lord Bach, Parliamentary Under-Secretary of State, Ministry of Justice (October ). 16 The general rule will be that coroner B s relevant authority will be required to meet the expenses of coroner A. This will apply, for example, where the Chief Coroner transfers a case to coroner A to reduce a severe backlog in coroner B s area, or where a bereaved family lives far from where the individual died and the Chief Coroner directs a coroner who is more local to the family to carry out that investigation. The first exception is where the relevant authority for coroner A will be responsible for meeting the expenses of the investigation. When a death occurs overseas and the body is brought back to England and Wales, the coroner for that area coroner B initially has a duty to carry out the investigation. However, the investigation may transfer to a different coroner who is nearer the family, coroner A, whose relevant authority will then fund it. The second exception is where relevant authorities for coroners A and B agree to share expenses. The Government considers that this is likely to happen in only a few cases, giving an example where two or more people are ultimately killed in one incident, such as a car accident. If, while still alive, one person was moved to another coroner area where they later die, the legislation would require investigations to happen in the two areas where the bodies are lying. However, the Chief Coroner may decide that both deaths should be investigated jointly by the coroner in whose area the incident occurred. Funding arrangements could then be agreed between the relevant authorities. 31. Lord Bach also took the opportunity to outline the other related matters that the regulations are likely to cover, including procedures for notifying interested persons of a transfer, and a provision for coroner A to be accountable to coroner B s relevant authority for expenses incurred in a case transferred to them, as they would normally be accountable to their own authority. 16 This is, in turn, reflected in the Consultation Paper at pp The Consultation Paper set out the MOJ s then-view that the measures would not create any new burden upon coroners or local authorities: p25. Coroners and Justice Act paper Alex Ruck Keene, 39 Essex Street July

12 Section Section 4, entitled discontinuance where cause of death revealed by post-mortem examination, provides in material part that: (1) A senior coroner who is responsible for conducting an investigation under this Part into a person s death must discontinue the investigation if (a) (b) an examination under section 14 reveals the cause of death before the coroner has begun holding an inquest into the death, and the coroner thinks that it is not necessary to continue the investigation. (2) Subsection (1) does not apply if the coroner has reason to suspect that the deceased (a) died a violent or unnatural death, or (b) died while in custody or otherwise in state detention. (3) Where a senior coroner discontinues an investigation into a death under this section (a) the coroner may not hold an inquest into the death; (b) no determination or finding under section 10(1) may be made in respect of the death. This subsection does not prevent a fresh investigation under this Part from being conducted into the death. (4) A senior coroner who discontinues an investigation into a death under this section must, if requested to do so in writing by an interested person, give to that person as soon as practicable a written explanation as to why the investigation was discontinued. 33. By this section, which is the successor to s.19 of the 1988 Act, the relevant senior coroner must discontinue an investigation if the cause of death is revealed by a post mortem examination before an inquest has been opened and the coroner thinks that it is not necessary to continue the investigation. So as to comply with the State s duties under Article 2 European Convention on Human Rights, subs.2 provides that a coroner cannot discontinue the investigation if he or she has reason to believe that the deceased died a violent or unnatural death or if they died whilst in custody or otherwise in state detention. 34. Section 4(4) had no equivalent in the 1988 Act, and provides that a senior coroner must explain to an interested person (in writing) why he or she has taken the decision to discontinue an investigation under the powers granted by s.4. Interested persons are defined in s.47. Section 5 Coroners and Justice Act paper Alex Ruck Keene, 39 Essex Street July

13 35. Section 5 is entitled matters to be ascertained. It provides in material part as follows: (1) The purpose of an investigation under this Part into a person s death is to ascertain (a) who the deceased was; (b) how, when and where the deceased came by his or her death; (c) the particulars (if any) required by the 1953 Act to be registered concerning the death. (2) Where necessary in order to avoid a breach of any Convention rights (within the meaning of the Human Rights Act 1998 (c. 42)), the purpose mentioned in subsection (1)(b) is to be read as including the purpose of ascertaining in what circumstances the deceased came by his or her death. (3) Neither the senior coroner conducting an investigation under this Part into a person s death nor the jury (if there is one) may express any opinion on any matter other than (a) the questions mentioned in subsection (1)(a) and (b) (read with subsection (2) where applicable); (b) the particulars mentioned in subsection (1)(c). This is subject to paragraph 7 of Schedule Under the old regime, the purposes of an inquest were defined in s.11(5)(b) of the 1988 Act and Rule 36(1) of the Coroners Rules 1984 ( the 1984 Rules ). They are now contained here, in materially identical form. 37. In a string of cases following an initial decision in McCann v United Kingdom (1995) 21 EHRR 97, the European Court of Human Rights has made it clear that Article 2 European Convention on Human Rights requires that investigations into deaths for which the State may bear responsibility are the subject of an effective investigation. Inquests form an integral part of the mechanism by which the State in England and Wales meets the procedural obligation imposed by Article 2. In R (Middleton) v West Somerset Coroner [2004] 2 AC 182, the House of Lords held that it was necessary that the purpose of an inquest had, in Article 2 case, to be to determine by what means and in what circumstances the person came to their death (Middleton at paragraphs 34-8). This purpose is reflected in subs.2. The Government deliberately kept the wording of subs.2 open so as to allow flexibility to take into account future judgments or future developments in the applicability of Article 2: Hansard, Official 17 Which sets out the successor to Rule 43 of the current Coroners Rules, albeit cast in mandatory terms. Coroners and Justice Act paper Alex Ruck Keene, 39 Essex Street July

14 Report, Coroners and Justice Bill Public Committee, c.179 per Bridget Prentice, Parliamentary Under-Secretary of State for Justice (February 10, 2009). Section The combined effects of ss.4 and 6 is that an inquest does not need to be held if (1) the cause of death has been identified by means of a post mortem examination; and (2) the senior coroner does not consider that it is necessary to continue the investigation. Section Section 7 sets out when a jury is required. It sets out in material part that: (1) An inquest into a death must be held without a jury unless subsection (2) or (3) applies. (2) An inquest into a death must be held with a jury if the senior coroner has reason to suspect (a) that the deceased died while in custody or otherwise in state detention, and that either (i) the death was a violent or unnatural one, or (ii) the cause of death is unknown, (b) that the death resulted from an act or omission of (i) a police officer, or (ii) a member of a service police force, in the purported execution of the officer s or member s duty as such, or (c) that the death was caused by a notifiable accident, poisoning or disease. (3) An inquest into a death may be held with a jury if the senior coroner thinks that there is sufficient reason for doing so. (4) For the purposes of subsection (2)(c) an accident, poisoning or disease is notifiable if notice of it is required under any Act to be given (a) to a government department, (b) to an inspector or other officer of a government department, or (c) to an inspector appointed under section 19 of the Health and Safety at Work etc. Act 1974 (c. 37). 40. This section is drawn from s.8(3) of the 1988 Act. As before, the general rule is that an inquest must be held without a jury. Where it is discretionary, a decision to convene an Coroners and Justice Act paper Alex Ruck Keene, 39 Essex Street July

15 inquest with (or without) a jury is appealable to the Chief Coroner under s.40 by an interested person (as defined in s.47). 41. Ss. 7(2) and (3) follow reasonably closely the previous provisions, save that: (1) the circumstances in which a jury is required are widened to include deaths whilst in custody or otherwise in state detention (as to which, see s.47(2) and the commentary to s.1 above); but (2) a jury is only required if the death in custody was a violent or unnatural one or the cause of death is unknown (unlike the provision under the previous Act where a natural death in custody gave rise to a necessity for a jury); and (3) the senior coroner is given a general power to convene a jury inquest if he considers there is sufficient reason to do so. Section Section 8 provides for the assembly of a jury. Under the provisions of s.8(2) of the 1988 Act, a jury had to consist of between 7 and 11 people. In the 2006 draft Bill, the Government proposed reducing the number to between 5 and 6; in the 2009 Bill, the Government proposed a reduction to between 6 and 9 people. Under some sustained criticism, the Government dropped the reduction, so the requirement remains for a jury of between 7 and 11 people. The qualifications to be a juror remain the same as previously, and they remains offences (by Part 1 of Schedule 5 to the Act): (1) knowingly to serve on a jury if disqualified from so doing; (2) to refuse to answer questions put by the senior coroner under s.8(5) or knowingly or recklessly to give false answers; or (3) make any false representations or to cause or to permit false representations to be made on a person s behalf to evade jury service at inquest. Section Section 9 provides for the determinations and findings by the jury and must be read with s.10. For present purposes, it is of note that s.9 maintains the position that majority determinations and findings can still be reached where only one or two jurors did not agree and the jury has deliberated for a period of time the senior coroner thinks reasonable in view of the nature and complexity of the case. Section 10 Coroners and Justice Act paper Alex Ruck Keene, 39 Essex Street July

16 44. Section 10 is entitled determinations and findings to be made, and provides as follows: (1) After hearing the evidence at an inquest into a death, the senior coroner (if there is no jury) or the jury (if there is one) must (a) (b) make a determination as to the questions mentioned in section 5(1)(a) and (b) (read with section 5(2) where applicable), and if particulars are required by the 1953 Act to be registered concerning the death, make a finding as to those particulars. (2) A determination under subsection (1)(a) may not be framed in such a way as to appear to determine any question of (a) criminal liability on the part of a named person, or (b) civil liability. (3) In subsection (2) criminal liability includes liability in respect of a service offence. 45. This section largely mirrors the provisions of s.11(3) of the 1988 Act. Subs.1(a) requires the senior coroner (or the jury where there is one) to make at the end of the inquest as to who the deceased was, and how, when, where the deceased came by his or her death. In an Article 2 ECHR investigation (as to which, see the Note to s. 5 above), the coroner must also include a determination, or direct a jury to include a determination, as to the circumstances of the death. The 1953 Act is the Births, Deaths and Registrations Act Section 10(1)(b) requires the coroner (or jury) to make a finding at the end of the inquest about the details required for registration of the death. As with the system under the 1988 Act, it is open for either a short finding (or verdict) to be used or a narrative verdict to be produced. The Government resisted suggestions made during the passage of the present Act through Parliament that there should be a degree of standardisation introduced into the recording process for statistical purposes. 47. By s.10(2), no determination in any case can be made which appears to determine criminal or civil liability on the part of any person, preserving the position enshrined under the 1988 Act. A service offence is defined in s.47(2) as having the meaning given in s.50(2) Armed Forces Act 2006, which sets down the regime for the punishment of offences committed by service personnel. Section 11 Coroners and Justice Act paper Alex Ruck Keene, 39 Essex Street July

17 48. Section 11 simply provides for Schedule 1 to have effect. Schedule 1, in turn, makes provisions for the suspension and resumption of investigations. All bar paragraphs 3 and 4 are both relatively uncontroversial and based in large part upon the pre-existing provisions. 49. Paragraph 1 of Schedule 1, based upon Rules 26 and 27 of the 1984 Rules, contains provision for suspending a senior coroner s investigation in the event that it is likely that criminal proceedings will be brought in connection with the death. Paragraph 2 of Schedule 1, developed from s.16 of the 1988 Act, sets out the arrangements for suspension of a senior coroner s investigation when criminal proceedings have been brought in connection with the death. Paragraph 5 of Schedule 1 provides a general power for a senior coroner to suspend an investigation if he or she thinks that it would be appropriate to do so. Examples given in the Explanatory Notes of circumstances when this power might be used are where another investigation is being conducted into the death, for example, by the Independent Police Complaints Commission, the Health and Safety Executive or an Accident Investigation Board, or if an investigation is being conducted in another jurisdiction, for example, if the death occurred abroad. Paragraph 6 of Schedule 1 deals with the effect of suspension, and paragraphs 6 to 10 deal with the circumstances (and consequences) of the resumption of an investigation suspended under paragraphs 1 to 5. Unsurprisingly, paragraphs 8 and 9 contain provisions preventing an inconsistent outcome being reached in the coroner s investigation to that reached in the criminal proceedings or inquiry. 50. Paragraphs 3 and 4 of Schedule 1 to the Act were by far the most controversial provisions during the passage of the Bill. They provide as follows: (1) Subject to sub-paragraph (2), a senior coroner must suspend an investigation under this Part of this Act into a person s death if (a) (b) (c) the Lord Chancellor requests the coroner to do so on the ground that the cause of death is likely to be adequately investigated by an inquiry under the Inquiries Act 2005 (c. 12) that is being or is to be held, a senior judge has been appointed under that Act as chairman of the inquiry, and the Lord Chief Justice has indicated approval to the Lord Chancellor, for the purposes of this paragraph, of the appointment of that judge. In paragraph (b) senior judge means a judge of the High Court or the Court of Appeal or a Justice of the Supreme Court. Coroners and Justice Act paper Alex Ruck Keene, 39 Essex Street July

18 (2) The coroner need not suspend the investigation if there appears to be an exceptional reason for not doing so. (3) In the case of an investigation that is already suspended under paragraph 1 4 (a) (b) a reference above in this paragraph to suspending the investigation is to be read as a reference to continuing the suspension of the investigation; if the suspension of the investigation is continued under this paragraph, the investigation is to be treated for the purposes of paragraphs 1(4), 7 and 9 of this Schedule as suspended under this paragraph (and not as suspended under paragraph 1). (1) This paragraph applies where an investigation is suspended under paragraph 3 on the basis that the cause of death is likely to be adequately investigated by an inquiry under the Inquiries Act 2005 (c. 12). (2) The terms of reference of the inquiry must be such that it has as its purpose, or among its purposes, the purpose set out in section 5(1) above (read with section 5(2) where applicable); and section 5 of the Inquiries Act 2005 has effect accordingly. 51. Paragraphs 3 and 4 between them seek to answer the question identified by the Secretary of State for Justice in the following terms: whether an investigation into the cause of death can take place within the coroners system, and in compliance with article 2 of the European convention on human rights, in circumstances involving highly sensitive information, such as intercept material, which cannot be made public. Hansard, Official Report, Consideration of Lords Amendments, c.52 per Jack Straw (November 9, 2009). 52. As noted above, the Government had initially sought to introduce so-called secret inquests during the passage of the Counter-Terrorism Act 2008, but backed down under sustained criticism. The Government re-introduced a proposal to this end during the passage of this Bill. After its stormy passage through the Commons, Jack Straw, the Secretary of State for Justice, announced in May 2009 a different iteration, namely that a Home Secretary would form a view that a non-jury inquest was required, and the Lord Chief Justice would nominate a senior judge to hear it, but a prior hearing by that judge would determine, on application by the Secretary of State and on hearing the other parties, whether to accede to that application on clear criteria. This proposal did not find favour, and the Government then decided to take a further tack, which has made its way (eventually) into the Act. In what are anticipated by the Government (and hoped by civil rights campaigners) to be very limited circumstances, the Coroners and Justice Act paper Alex Ruck Keene, 39 Essex Street July

19 Lord Chancellor can request the relevant senior coroner to suspend an investigation into a person s death upon the appointment with the approval of the Lord Chief Justice of a senior judge (i.e. a judge of the High Court or Court of Appeal or a justice of the Supreme Court) to chair an inquiry under Inquiries Act By paragraph 4(2) of Schedule 1, that inquiry would have to include as its terms of reference the same terms of reference as an investigation held for purposes of s.5(1). The relevant senior coroner must suspend the investigation upon such a request, unless there are exceptional (Paragraph 3(2) of Schedule 1) reasons not to do so. 53. At one stage in the Lords, the Government stood defeated in the face of a proposal by the Opposition that intercept evidence be admissible before an inquest; however, the Government ultimately succeeded during the ping-pong stage in overturning this amendment on the basis, primarily, that it would mean that such intercept evidence would be disclosed in circumstances which did not satisfy the nine conditions set down by Sir John Chilcot in the Privy Council review he conducted of the use of such evidence. 18 During the course of the consideration of the Lords Amendments in the Commons, Jack Straw clarified that the advisory panel on intercept evidence had been asked whether they would particularly examine the issue of evidence in coronial matters, because he recognised the need to find a specific way forward. Hansard, Official Report, Consideration of Lords Amendments, c.56 per Jack Straw (November 9, 2009). Sections 12 and Sections 12 and 13 of the Act have been enacted in large part in response to the substantial increase in investigations into the deaths overseas of service personnel (or civilians serving alongside those personnel) in recent years. The fact that inquests have traditionally been conducted by the coroner for the area in to which the aircraft carrying the body of the deceased back has returned has meant that there have been a number of cases in which inquests for Scottish service personnel have been held in England in circumstances in which it would clearly have been more appropriate (in particular, by reference to the needs of the bereaved relatives) for those inquests to be held in Scotland under the different regime enacted by the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act These two sections therefore provide the ability for inquests to be held of service personnel in the most appropriate of the two countries Coroners and Justice Act paper Alex Ruck Keene, 39 Essex Street July

20 Section Section 14 addresses post-mortem examinations and provides as follows: (1) A senior coroner may request a suitable practitioner to make a post-mortem examination of a body if (a) (b) the coroner is responsible for conducting an investigation under this Part into the death of the person in question, or a post-mortem examination is necessary to enable the coroner to decide whether the death is one into which the coroner has a duty under section 1(1) to conduct an investigation. (2) A request under subsection (1) may specify the kind of examination to be made. (3) For the purposes of subsection (1) a person is a suitable practitioner if he or she (a) (b) is a registered medical practitioner, or in a case where a particular kind of examination is requested, a practitioner of a description designated by the Chief Coroner as suitable to make examinations of that kind. (4) Where a person informs the senior coroner that, in the informant s opinion, death was caused wholly or partly by the improper or negligent treatment of a registered medical practitioner or other person, that practitioner or other person (a) must not make, or assist at, an examination under this section of the body, but (b) is entitled to be represented at such an examination. This subsection has no effect as regards a post-mortem examination already made. (5) A person who makes a post-mortem examination under this section must as soon as practicable report the result of the examination to the senior coroner in whatever form the coroner requires. 56. This section draws on, but modifies, the provisions of ss.19 and 20 of the 1988 Act. In particular, this Act removes the distinction between post-mortem and special examinations contained in s.20. Subs. 2 simply provides the senior coroner with the power to detail the kind of examination he or she would like the practitioner to make for example, to ask for a particular examination of a tissue or organ which seems most relevant to the cause of death if a full post-mortem is not considered necessary. As the Explanatory Notes make clear, post- Coroners and Justice Act paper Alex Ruck Keene, 39 Essex Street July

21 mortem examination is a broad term, which is deliberately not defined, but will include any examination made of the deceased including non-invasive examinations, for example, using Magnetic Resonance Imaging (MRI). Section Section 15 provides for the power to remove a body, and reads as follows: (1) A senior coroner who (a) is responsible for conducting an investigation under this Part into a person s death, or (b) needs to request a post-mortem examination under section 14 in order to decide whether the death is one into which the coroner has a duty under section 1(1) to conduct an investigation, may order the body to be removed to any suitable place. (2) That place may be within the coroner s area or elsewhere. (3) The senior coroner may not order the removal of a body under this section to a place provided by a person who has not consented to its being removed there. This does not apply to a place within the coroner s area that is provided by a district council, a county council, a county borough council, a London borough council or the Common Council. 58. This is a new provision, the 1988 Act containing (at s.22(1)) a restriction upon the powers of movement of bodies which had caused substantial practical difficulties, especially in major incidents involving several deaths. The Explanatory Notes make it clear that the Government intends that this power will also be used to allow a senior coroner to make use of specialist equipment or skills available in a different part of the country and may, on occasion, mean that full post-mortems can be avoided. Section Section 16 relates to investigations lasting more than a year, and provides as follows: (1) A senior coroner who is conducting an investigation under this Part into a person s death that has not been completed or discontinued within a year (a) (b) must notify the Chief Coroner of that fact; must notify the Chief Coroner of the date on which the investigation is completed or discontinued. Coroners and Justice Act paper Alex Ruck Keene, 39 Essex Street July

22 (2) In subsection (1) within a year means within the period of 12 months beginning with the day on which the coroner was made aware that the person s body was within the coroner s area. 60. At Report stage the House of Lords agreed an amendment tabled by the Liberal Democrat peer Baroness Miller (Hansard, Official Report, cols (October 21, 2009)) designed to tackle delays in holding inquests, especially in respect of deaths in custody. Section 16 represented a redrafting of this proposal by the Government, introduced by Government amendment at Third Reading in the House of Lords. It is self-explanatory; see also s.36(4)(a), which requires that the Chief Coroner in his annual report to the Lord Chancellor outlines certain information relating to investigations lasting more than a year. Section Section 17 contains provisions relating to investigations into the deaths of service personnel, and provides that the Chief Coroner must (a) monitor investigations under this Part into service deaths; and (b) secure that coroners conducting such investigations are suitably trained to do so. On 26 October 2009, the House of Lords agreed an amendment tabled by the Conservative peer Baroness Fookes, requiring a Deputy Chief Coroner to be appointed with specific responsibility for oversight of military inquests and for the specialist training of coroners in respect of such inquests ((Hansard, Official Report, cols (October 26, 2009)). This section represents a redrafting by the Government of the proposal underlying that amendment to reflect the fact that the Chief Coroner is responsible for setting standards, including as to the training of coroners and the conduct of inquests into particular types of death. Chapter 2 Section Section 18 provides that the Lord Chancellor may make regulations requiring a registered medical practitioner, in prescribed cases or circumstances, to notify a senior coroner of a death of which the practitioner is aware. Coroners and Justice Act paper Alex Ruck Keene, 39 Essex Street July