Coroners Inquests

• Introduction
• When an inquest will be held
• Scope of the inquest
• Article 2 inquest
• Factors determining the chronology
• Should the inquest be held before any HSE prosecution?
• When the Coroner should sit with a jury
• Notification by the Coroner
• Pre-inquest hearings
• The Coroner's power to summons a witness
• The inquest hearing
• Evidence admitted under Rule 23
• Admissibility of evidence taken before Coroner
• Inquest Conclusions
• The Coroner's use of discretion
• Costs
• Reports to prevent future deaths (PFD reports)
• Responses to Coroners' reports
• What to do if you receive a PFD report

Introduction

1. Part 1 of the Coroners and Justice Act 2009 ('the 2009 Act') introduced a number of significant changes to the coronial system.

2. The 2009 Act created the new national head of the Coroner system, the office of Chief Coroner. It introduced the new concept of 'investigations' into deaths, which where appropriate will include an inquest, as well as making new provisions relating to Coroner areas, creating new titles for Coroners, and removing barriers to where coronial investigations can be held.

The Office of the Chief Coroners website^[166] contains Guidance and Law Sheets.

3. As well as the 2009 Act itself, other changes were introduced by the Coroners (Investigations) Regulations 2013 ('the Investigations Regulations') and the Coroners (Inquests) Rules 2013 ('the Inquests Rules'). The purpose of the 2009 Act (and the Rules and Regulations) is partly to ensure consistency of practice and approach by Coroners across England and Wales and to speed up the hearing of inquests, while also improving the experience of the bereaved.

4. From 25th July 2013 all "investigations", including deaths which are already being investigated by a Coroner and which may have reached the inquest stage, will be dealt with under the new regime.

5. A Coroner has a duty¹ to investigate a death if:

• the Coroner is made aware that the body is within that Coroner's area and
• the Coroner has reason to suspect that:
  • the deceased died a violent or unnatural death,
  • the cause of the death is unknown, or
  • the deceased died while in custody or state detention (section 1(2)).

6. The matters to be ascertained by the investigation² are:

1. who the deceased was;
2. how, when and where the deceased came by his or her death;
3. the particulars (if any) required to be registered concerning the death. (These particulars are referred to as 'findings' for the conclusion of an inquest)

When an inquest will be held

7. The 2009 Act introduces the new concept of the Coroner's 'investigation' into a death of which the inquest will only form part. It allows the Coroner time to consider whether the duty to hold an inquest applies, rather than having to open an inquest as soon as practicable The law previously focused on the inquest; the 2009 Act focuses upon the investigation (including the inquest).

8. When the Coroner conducts an investigation he must hold an inquest into the death³. The duty to hold an inquest ceases when there is discontinuance of the Coroner's investigation⁴.

9. The inquest must be completed within six months from 'the date on which the Coroner is made aware of the death, or as soon as is reasonably practicable after that date'⁵.

Scope of the inquest

10. The matters to be ascertained are confined to the identity of the deceased and to "how, when and where" he came by his or her death. By Section 5 of the 2009 Act the Coroner and/or a jury are prohibited from expressing an opinion on any other matter. Section 10(2) says that "a determination" (the answers to the section 5 questions) may not be framed in such a way as to appear to determine criminal or civil liability.

11. Historically, the scope of "how" the deceased came by his death was not defined and was interpreted in different ways. In R v HM Coroner for North Humberside and Scunthorpe (ex parte Jamieson)⁶, the Court of Appeal held that the phrase "how the deceased came by his death" was limited and was to be confined to the question of "by what means" the deceased died.

12. In R v HM Coroner for Inner London West District ex parte Dallaglio⁷ (the 'Marchioness' case), the Court of Appeal appeared to draw back from such a strict interpretation and instead encouraged considerable flexibility in the discretion of Coroners as to the scope of the inquest. The Court held that "the inquiry is almost bound to stretch wider than strictly required for the purposes of a verdict. How much wider is pre-eminently a matter for the Coroner"⁸.

'Article 2' inquests

13. Where employees (or other emanations) of the state potentially bear responsibility for loss of life (whether by their actions or omissions), the right to life in Article 2 of the European Convention on Human Rights (ECHR)⁹ may be engaged. For Article 2 to be engaged, there must be reasonable grounds for thinking that the death may have resulted from a wrongful act on behalf of the state¹⁰. An example might be a death in custody, either in prison or under police detention.

14. In such a case, the state is under an obligation to initiate an effective public investigation by an independent body. The House of Lords has ruled that, while a criminal investigation and prosecution may not discharge this obligation, an inquest is likely to do so. The inquest must, however, determine not only the identity of the deceased and when, where and how the death occurred, but also in what circumstances¹¹. The limited ambit of a 'standard' inquest will not satisfy the obligation on the state.

15. In deaths where Article 2 of the European Convention of Human Rights is engaged, the question of 'how' has a wider meaning and includes the purpose of ascertaining in what circumstances the deceased came by his or her death (section 5(2)). This follows the principle set out in the Middleton case (R (Middleton) v HM Coroner for Western Somerset [2004] 2 AC 182).

16. Whether the enhanced form of inquest will be required will depend on the precise circumstances of the particular case¹². Only those inquests that are concerned with a possible breach of Article 2 by an agent of the state have this wider scope; other types of inquest can be more limited¹³. The Coroner's decision will determine the questions s/he will need to address during the inquest and will have an impact on the assistance that you provide to the Coroner.

[Section 42 (Legal professional privilege) exemption Freedom of Information Act 2000]

Factors determining the chronology

22. The chronology of proceedings will depend on:

• whether or not the CPS decides to prosecute for manslaughter or other serious criminal offences;
• whether a public inquiry is to be held;
• whether HSE decides to prosecute before the Inquest (see Should the inquest be held before any HSE prosecution?^[167] below)
• the decision of the Coroner as to when the inquest should be held; and
• the likelihood of an unlawful killing verdict being returned at a Coroners' Inquest.

23. Under the new Rule 8 (of the Inquest Rules) the inquest must be completed within six months from 'the date on which the Coroner is made aware of the death, or as soon as is reasonably practicable after that date', The Chief Coroners Guidance on opening Inquests states "Where it will not be possible to set the date within six months for some good reason, such as delay likely to be caused by police or Health and Safety Executive or Prisons and Probation Ombudsman investigation, there is still a duty on the coroner to complete the inquest as soon as is reasonably practicable after the date of notification of the death"/

Schedule 1 to the 2009 Act sets out when a Coroner can or must suspend and resume investigations. It includes the following:

• Paragraph 1 of Schedule 1 provides that a Coroner must suspend an investigation if asked to do so by a prosecuting authority because someone may be charged with a homicide or related offence involving the death of the deceased. This will usually be the Crown Prosecution Service and HSE is not, for these purposes, considered to be a prosecuting authority (section 48 of the 2009 Act).
• Paragraph 2 of Schedule 1 sets out the arrangements for suspension of the Coroner's investigation when criminal proceedings have been brought in connection with the death
• Paragraph 5 of Schedule 1 provides a general power to a Coroner to suspend an investigation where appropriate. It is this power which allows a Coroner to suspend his/her investigation at the request of HSE when we are investigating potential breaches arising from the death and in particular when HSE has decided to prosecute before an inquest.

Therefore, where the police investigate a work-related death and this leads to a file being submitted to the CPS, the Coroner's investigation will usually be suspended pending the outcome of the police investigation and the CPS prosecution (if any).

Should the inquest be held before any HSE prosecution?

24. Historically HSE prosecutions generally took place after the conclusion of the inquest. It was HSE policy that a final decision on enforcement action would not normally be made until after the inquest was held. The policy was not designed so as to afford HSE (or, indeed, potential defendants) the opportunity to test the available evidence in advance of any enforcement proceedings; rather, it recognised that:

• additional information may have come to light as a result of the inquest; and
• the Coroner may have decided to refer the case back to the police/CPS for further consideration of a manslaughter charge.

25. Following a change to the Work-related Deaths Protocol in October 2011 HSE and other enforcing authorities were given greater discretion to proceed with a prosecution prior to an inquest. The changes are effective from the 1st October 2011. The aims of this change were to speed up the judicial process in certain specific cases, thereby avoiding delays which may lead to abuse of process challenges, and provide improved support for bereaved family members.

26. However consideration must be given in each case to the potential risk of a prosecution under health and safety offences amounting to a bar to any subsequent criminal proceedings being brought for gross negligence manslaughter and corporate manslaughter¹⁷. HSE's policy of not proceeding with a prosecution was designed to prevent a repeat of the circumstances that occurred in R v Beedie¹⁸. In that case, a manslaughter conviction was quashed, as the accused had already been prosecuted for a health and safety offence relating to the defective state of a gas installation, which had resulted in the death. Consequently, the second (manslaughter) prosecution should have been stayed as an abuse of process.

27. To minimise the risk of a repeat of R v Beedie, commencing legal proceedings before inquest should only be considered for those cases where the risk of an unlawful killing verdict at a subsequent inquest is minimal. Guidance on the timing of criminal proceedings in work-related death cases (PDF) ^[168] has been produced by the Work- related Deaths Protocol National Liaison Committee , and this has been incorporated into HSE's operational instructions (OC 165/10^[169]). The procedure detailed in OC 165/10 must be followed in all cases where consideration is to be given to commencing legal proceedings before inquest. The issues to consider before a decision is made to commence legal proceedings before inquest include:

• the liaison requirements set out in the WRDP have been followed and the police and/or CPS have been engaged;
• primacy for the investigation has been formally passed from the police to HSE and recorded in writing;
• that all reasonable lines of enquiry have been completed, all available and admissible evidence gathered, and that it is unlikely that any additional evidence will come to light at an inquest that would materially affect that decision.

28. In addition, the following parties should consulted as to their view to commence legal proceedings before inquest:

• the police and/or where appropriate the CPS ie where the CPS has given the police early investigative advice or carried out a full evidential review;
• the Coroner, any decision should take into account what delay there might be in the hearing of any inquest, and whether the Coroner will suspend his/her investigation if criminal proceedings for health and safety offences are commenced. Given the duty to complete the inquest within 6 months or as soon as reasonably practicable thereafter, delay may be less of an issue but there may be other reasons why prosecuting before the inquest is favourable to HSE and the Coroner.
• the bereaved family members.

29. HSE would not, in general, look to commence legal proceedings before inquest if the Coroner is not content to adjourn the inquest until after those proceedings are completed, or, if an inquest could be held within a short timescale and this would not prejudice the right to fair trial due to delay.

30. Any decision to commence legal proceedings before inquest should be informed by legal advice (Legal Adviser's Office) and approved by the Band 1. Guidance is provided in OC 165/10.

31. Unlike the police and the Director of Public Prosecutions, HSE had no statutory power to intervene and seek to adjourn the inquest pending the conclusion of criminal proceedings. However, the Coroners' Society did agreed in the MoU that Coroners should consider this request in line with section 16(1)(b) of the Coroners Act 1988¹⁹ (which was the obligation under the old law to adjourn at the request of the CPS/police when criminal charges were pending/ongoing). In Schedule 1 paragraph 5 of the 2009 Act the Coroner has power to suspend a coronial investigation when appropriate to do so and this is the relevant provision should HSE seek the suspension/adjournment of an inquest for example to enable the commencement of criminal proceedings.

32. If having considered the NLC guidance and OC165/10, a decision is made not to commence legal proceedings until after the inquest, in some cases, particularly in light of changes to paragraph 10.3 of the WRDP, Coroners may seek to persuade HSE that a health and safety prosecution should proceed before the inquest on the basis that:

• the HSE investigation covers very serious matters;
• any health and safety prosecution is likely to be strenuously contested; and
• it will therefore explore all of the issues pertinent to the inquest.

33. This course may appear attractive as it could reduce the length and the cost of an inquest and, with the interests of the victim's family especially in mind, it would mean that any prosecution would take place earlier than would otherwise be the case.

34. However, HSE investigations and subsequent proceedings are generally directed towards the issue of risk and may therefore not explore all the issues that are relevant to the inquest or which the bereaved wish to know about. The death of a person may be pleaded as an aggravating feature in a health and safety prosecution, but it does not form an essential element of the offence. The statutory duty for investigating how, when and where the deceased came to their death remains with the Coroner. Furthermore, proceeding with the prosecution before the inquest carries with it the type of risk that occurred in Beedie (see para 26 above). It is not for the Coroner to attempt to direct HSE to act contrary to existing case law. Advice should be sought from LAO in cases where a Coroner, contrary to HSE's preference,  seeks to persuade HSE to commence legal proceedings before inquest.

35. Where the Coroner has suspended the investigation because certain criminal proceedings have been brought, he or she can only resume an investigation if he or she thinks there is sufficient reason to do so. The investigation cannot be resumed until the criminal proceedings which triggered the suspension have come to an end in the court of trial, unless the prosecuting authority has confirmed it has no objection to this. The outcome of such an investigation resumed must be consistent with the result of the criminal proceedings which triggered the suspension. (Paragraph 8 of Schedule 1.)

36. In all investigations, it is important that the Work-related Deaths Protocol operates effectively and HSE is involved in, and consulted on, any police-led investigation. Witness statements should be obtained while the evidence is still fresh in the minds of witnesses, and evidence shared between HSE and the police so that early decisions on prosecutions can be made. HSE should also offer assistance to the Coroner, in line with the Memorandum of Understanding ('MoU') with the Coroners' Society. It is important for HSE to be able to provide a reasonable justification for the passage of time.

When the Coroner should sit with a jury

37. An inquest must be held without a jury unless section 7 applies (section 7(1)). Section 7 sets out the limited circumstances in which a Coroner is required to hold a jury inquest. It also gives the Coroner the power to decide to hold an inquest with a jury in any case where he or she thinks there is 'sufficient reason'. However, an inquest must be held with a jury in circumstances which include,

• where the deceased died while in custody or state detention, and the death was violent or unnatural, or of unknown cause;
• where the death resulted from an act or omission of a police officer or member of a service police force in the purported execution of their duties;
• where the death was caused by an accident, poisoning or disease which must be reported to a government department or inspector. (which includes to an inspector appointed under section 19 of HSWA).

If the Coroner consults you and other properly interested persons on the issue of whether to summon a jury, it may be necessary to remind him/her of R v Poplar Coroner, ex parte Chaudhry²⁰, where it was held that it is the Coroner's task to consider whether there is reason to suspect that the death occurred in "circumstances the continuance or possible recurrence of which is prejudicial to the health or safety of the public". If it appears to the Coroner that there are such circumstances, then s/he must summon a jury.

38. As indicated above, the purpose of the inquest is to determine who the deceased was and how, when and where s/he came about his/her death²¹. The conclusion must not be framed in such a way as to appear to determine any question of criminal liability on the part of a named person or civil liability²².

Notification by the Coroner

39. Rule 9 of the Inquests Rules requires a Coroner to notify relevant interested persons of the time, date and location of the main inquest hearing within one week of the hearing date being set. It is therefore important that you write to the Coroner and ask to be notified (see the Letters and forms (.doc) ^[170] section for a suggested letter).

40. There is a similar requirement placed on the Coroner²³ to inform you, of the date, hour and place of any post mortem examination if the death may have been caused by a reportable accident or disease.

41. It is extremely rare and generally unnecessary for an HSE inspector to attend a post mortem. As only medically qualified persons are entitled to attend, in rare cases where the Coroner does ask that an HSE inspector attends in order to assist him, the request will need to be passed to a Medical Inspector to consider.

42. See The Coroner and HSE^[171] for further guidance on liaising with, and providing assistance to, the Coroner.

Pre-inquest hearings

43. New rule 6 formally recognises that pre-inquest review hearings (PIRs) are often held before the main inquest hearing. Where possible Coroners should set out in advance of the hearing for all interested persons an agenda in writing and,where appropriate, invite written submissions to be considered at the hearing. Such hearings are not a statutory requirement but have been accepted as a sensible method of administering the inquest process. New Rule 11 confirms that PIRs will now be held in public. They do not strictly form part of the inquest itself and, therefore, the purpose and form of the hearing are matters for the Coroner.

44. A pre-inquest hearing may be an opportunity for you and other properly interested persons to ascertain from the Coroner the ambit of the inquest, ie those issues which the Coroner considers relevant. To a large extent, this will depend on whether an extended form of inquest is required to fulfil the obligations on the state under Article 2 of the ECHR (see 'Article 2' inquests above).

45. If you have not already been provided with a list of witnesses, the pre-inquest hearing may also allow you to find out which witnesses will be called. You may wish to contact the Coroner prior to the hearing to determine whether s/he requires any further assistance from you. The Coroner should, however, be dissuaded from using the hearing to pressure you into undertaking further enquiries on his/her behalf (see the section The Coroner and HSE – Working with the Coroner^[172]). You should also be aware of the new Rules regarding the disclosure of information which may be invoked at a PIR (see The Coroner and HSE – Disclosure of information by the Coroner^[173]).

The Coroner's power to summons a witness

46. Paragraph 1 of Schedule 5 to the 2009 Act gives a coroner power to summon witnesses and to compel the production of evidence for the purposes of an investigation (paragraph 1(2)) or an inquest (paragraph 1(1)) by way of written notice. The Chief Coroners Guide to the 2009 Act states that "Coroners should not be too hasty to exercise these powers. They should only be used where necessary and where other methods have failed. Much can be achieved by agreement with, for example, local hospitals, on regular procedures for the production of witness statements, medical notes and reports".

If an inspector receives such a notice he/she should contact Legal Advisors Office for advice. Copies of all correspondence between the Coroner and HSE in these circumstances should also be sent via email to the FOD Legal and Enforcement account.

Paragraph 2 makes it clear that the coroner does not have the power to require anything to be provided to him or her that a person could not be required to provide to a civil court, mirroring the restriction on many information gathering powers contained in existing legislation.. The rules of law in relation to public interest immunity apply equally in relation to investigations or inquests.

47. Schedule 6 to the 2009 Act sets out offences relating to witnesses and evidence and the penalties. The offences include failure to comply with a notice under paragraph 1 of Schedule 5 requiring evidence to be given or produced, altering evidence, preventing evidence from being given, destroying or concealing documents, and giving false evidence. A coroner may impose a fine not exceeding £1000 on a person who fails without reasonable excuse to do anything required by a notice under paragraph 1 of Schedule 5.

The inquest hearing

48. If an inquest concerns a reportable accident or disease, you should normally attend the inquest. Where medical evidence is likely to be important, you should consider involving a Medical Inspector to advise you on the medical aspects of the investigation.

49. The inquest is an inquisitorial (rather than adversarial) process. However, witnesses are required to be 'sworn in' in the same way as in any other court of law. No witness is obliged to answer any question that tends to incriminate him/herself and, where a witness has been asked such a question, the Coroner will inform the witness that s/he may refuse to answer.

50. Before attending the inquest, you should carefully consider what papers to bring with you. It is advisable to maintain regular contact with the Coroner following the death. However, if the Coroner has not indicated what material s/he would like you to provide, you should normally, in the first instance, offer to prepare a factual report (.doc) ^[174], setting out the circumstances of the death and listing the witnesses who have given statements to HSE (see The Coroner and HSE - working with the Coroner^[175]).

51. Should the Coroner invite you to sit on the bench with him/her as an assessor, you should decline. While HSE appreciates the wish for a technical assessor, this practice could raise questions regarding the role of the inspector, especially if there were subsequent criminal proceedings²⁴. In general, where an inspector has first hand knowledge of, or expertise in, the matter under consideration, s/he is likely to be of equal assistance if called as a witness.

52. You should attend the inquest whether or not you are required to give formal evidence. Your role at the inquest is as a 'properly interested person' as defined by Section 47 of the 2009 Act. As an Inspector of Health and Safety²⁵, you are entitled to examine witnesses at the inquest. This entitlement should be exercised with caution. You should primarily listen to the evidence from witnesses in answer to the Coroner's questions. The witnesses may also be asked questions by legal representatives of the company or firm involved and by the bereaved and injured, as well as any other properly interested parties. A careful record should be kept of questions asked and answers given by witnesses.

53. In many cases, it will not be necessary for you to ask questions. What witnesses say at an inquest is not admissible evidence as to the truth of that statement in any subsequent criminal proceedings (see below). You will often have taken a statement from them or interviewed them under caution. In general, any questions you ask should be for the purpose of clarification or to provide additional context to the Coroner. If a prosecution for health and safety offences is likely to follow the inquest, inspectors should seek advice from Legal Adviser's Office before planning to question witnesses at an inquest. Where necessary, legal representation may be arranged although in most inquests in which HSE is an interested person it will be difficult to justify incurring such legal costs. Inquest costs are not necessarily recoverable in a subsequent criminal prosecution.

54. If there is a serious discrepancy between a witness's evidence during the inquest and a previous written statement, and a prosecution is under consideration, you should seek advice via your legal liaison point. Any evidential inconsistencies will be relevant to the review of the case and may affect the decision to prosecute. Moreover, all inconsistencies between written statements made by potential prosecution witnesses and their evidence at an inquest will be disclosable under the provisions of the Criminal Procedure and Investigations Act 1996 and the Attorney General's Guidelines on Disclosure (see the section Disclosure on or after 4 April 2005^[176] for further guidance).

55. Prior to the inquest date, you will be notified as to whether the Coroner will call you to give formal evidence. You may be informed of this at a pre-inquest hearing (see above). If you are unsure what the Coroner will require, you should contact the Coroner's Officer prior to the hearing.

56. If you are called to give formal evidence, you will stand in the witness box and the Coroner will ask you to explain your professional role. You will then be expected to answer questions put to you by the Coroner regarding the issues to be determined by the inquest. The extent to which you can provide factual evidence will depend on the time when you attended the scene. You should be careful about offering opinion evidence that is outside your individual expertise.

57. After giving formal evidence, the Coroner will invite the legal representatives present in the court (which may include the representatives of potential defendants in any future health and safety prosecution) to put any relevant questions to you. The family and the jury will then be given an opportunity to ask questions. These are likely to be by way of clarification of the circumstances or technical issues.

58. You must always bear in mind the purpose of the inquest and sensibly refrain from expressing your opinion in relation to any breach of the relevant statutory provisions. It is, however, part of your function at the inquest to refer the Coroner to material that is relevant to the case. This may include:

• the applicable legislation;
• codes of practice; or
• industry standards.
  

59. The Coroner will sum up before the jury retires to consider its conclusions. The words 'inquisition' and 'verdict' are no longer used. Section 10 of the 2009 Act requires a jury to make a determination as to the questions mentioned in section 5. Its conclusions are recorded in the Record of the inquest (for example "accident or misadventure or "unlawful killing") and a jury may, in addition, make a brief narrative conclusion.

Evidence admitted under Rule 23

60. Evidence which the Coroner considers unlikely to be disputed may be admitted in documentary form under Rule 23 of the Inquest Rules and will be read aloud at the inquest. This saves time at the inquest and avoids the need for witnesses whose evidence is uncontroversial to attend in person. The new Rules allow written evidence not only when the maker cannot attend but also when they will not attend even though there may not be a justified reason for non- attendance.

Written evidence should be admissible where the coroner is satisfied that:

• the maker of the written evidence cannot attend the inquest to give evidence at all, or within a reasonable time (perhaps due to a severe disability);
• there is good and sufficient reason why the maker of the written evidence should not attend (for instance where the person is abroad or ill);
• there is good and sufficient reason to believe that the maker of the written evidence will not attend (even though there may not be a justified reason for non-attendance); or
• the coroner considers the evidence is unlikely to be disputed.

61. Before admitting evidence under Rule 23, the Coroner will announce details of the document, together with the right of properly interested persons (which would include an HSE inspector) to object and their entitlement to see a copy of the document²⁶.

62. The courts have disapproved of attempts to admit all witness evidence without giving interested persons a proper opportunity to consider whether to object. In R v Avon Coroner, ex parte Bentley²⁷, the court found that the old Rule 37 had been breached because statements from witnesses that were relevant to key issues were read by a police officer when there was no reason to prevent those witnesses from giving live evidence. The case was concerned with an extreme situation where, in the absence of the limited form of disclosure suggested by the court, the properly interested persons would have been ignorant of "the most basic facts" and unable to make an informed decision on whether to object to the witness evidence being read. Disclosure is now covered by Part 3 of the Inquest Rules see The Coroner and HSE^[177]. Under these new provisions a coroner must normally disclose copies of relevant documents to an interested person, on request, at any stage of the investigation process.

Admissibility of evidence taken before Coroner

63. If the inquest is held before any prosecution for health and safety offences, evidence given at the inquest will be relevant to the review and preparation of the case and should always be considered in detail before proceedings are begun.

64. Records of evidence given before an inquest²⁸ are not in themselves admissible in subsequent criminal or civil proceedings as evidence of the truth of a witness's evidence at the inquest²⁹. However, such records may reveal inconsistencies that could affect the decision to prosecute or point to the need for further enquiries.

65. The Rules require a coroner to make a recording of proceedings. The duty to record proceedings relates to the main inquest hearing and any pre-inquest review.³⁰ The coroner should, on request, provide copies of the recording to interested persons. When providing a recording of an inquest, a coroner will place limitations on its use. As with obtaining a court transcript, Coroners will charge for a record.

Inquest Conclusions

66. As stated above, an inquest conclusion (formerly known as a verdict) must not be framed in such a way as to appear to determine any question of criminal liability on the part of a named party or civil liability³¹. The following are examples of the type of conclusions that might be returned:

• Natural causes;
• Industrial disease;
• Alcohol or drug related;
• Suicide;
• Accident/misadventure;
• Road traffic collision;
• Lawful killing;
• Open verdict;
• Unlawful killing;
• Still birth;

67. Although juries commonly return either a conclusion of accidental death or a verdict of misadventure, there is no material difference between the two³². The return of an open conclusion is appropriate where the evidence did not fully or further disclose the means whereby the cause of death arose.

68. In HSE cases, the Coroner will often direct the jury to consider a limited range of conclusions. The most common returned in these cases are 'Accident' and 'Industrial disease'. The conclusion is reached 'on the balance of probabilities', although you should be aware of the higher, criminal standard of proof (ie beyond reasonable doubt) required to find 'Unlawful killing' or 'Suicide'.

69. Increasingly, as an alternative to the traditional 'short-form' conclusion, which is limited in nature, Coroners are making use of 'narrative' conclusions. A narrative is a factual account of the findings of the inquest and may or may not refer to the terms given above³². The narrative may be answers to a set of questions posed by the Coroner to him/herself or the jury.

The Coroner's use of discretion

70. As judicial office holders, coroners have some discretion in determining the scope of, and conducting, their inquiry. The purpose of the 2009 Act (and the Rules and Regulations introduced in 2013) is partly to ensure consistency of practice and approach by coroners across England and Wales and to speed up the hearing of inquests, while also improving the experience of the bereaved.

71. Coroners are obliged to use their powers and functions lawfully and for the purposes for which the powers were created. They must take into account all the factors they are under a duty to consider, and must not exercise their discretion on the basis of irrelevant factors. Any decision must be procedurally fair and impartial, and must be a response to each case based on its merits. Any decision must be reasonable³³ so as to avoid a perverse decision. Appeals against decisions made by Coroners during the inquest process are made by seeking a judicial review of the decision in the High Court.

72. As a public authority, the Coroner is also obliged to act in a way which is compatible with the European Convention on Human Rights, including the right under Article 6 to a fair trial in any criminal proceedings that might follow the inquest. The Memorandum of Understanding with the Coroners' Society (see The Coroner and HSE^[178]) seeks to limit the potential for prejudice to any such proceedings.

Costs

73. You should note that applications for costs are not made in the Coroner's court.

Reports to prevent future deaths (PFD reports)

74. The 2009 Act (paragraph 7 of Schedule 5) changed the previous 'Rule 43' provision. A coroner will now be under a duty to report actions to prevent other deaths to a person who the coroner believes may have the power to take such actions.

75. The coroner must make a report where the investigation he/she has been conducting reveals something which gives rise to a concern that there is a risk of deaths in the future and that action should be taken to eliminate or reduce that risk (paragraph 7). The coroner may recommend that action should be taken, but not what that action should be.

76. Regulations 28 and 29 require any person responding to a coroner's report of action to prevent future deaths to include in the response to the coroner a timetable for the action proposed to be taken to prevent other deaths.

77. The Coroner must send a copy of any response to a PFD report to the Chief Coroner (who may publish the report or a summary of it³⁴) and properly interested persons. Both the Coroner and the Chief Coroner may also send a copy of the report to any person who, in their opinion, may find it useful or of interest³⁵ (such as other regulatory authorities).

Responses to Coroners' reports

78. Although a person who is sent a PFD report by the Coroner is not under an obligation to implement any specific recommendations, a written response must be given to the Coroner within 56 days³⁶. The response must contain either:

• a timetable for the action proposed to be taken to prevent other deaths. or
• an explanation as to why no action is proposed.

79. The Coroner has a discretion to extend the deadline for giving a response, even where the application for an extension of time is made after the initial 56 day period for compliance has expired³⁷.

80. On receiving a response, the Coroner must send a copy of it to the Chief Coroner³⁸. Unless the Coroner decides that the response should not be released in full (see below), s/he must also send a copy to the properly interested persons (including the bereaved family). As with the report itself, the Coroner may send a copy of the response to any other person whom s/he believes may find it useful or of interest.

81. In responding to a report, a person may make written representations to the Coroner about the release of his/her response to the interested persons and others and its publication (but not about sharing the response with the Chief Coroner). Such representations might be made where the response contains confidential or sensitive information, or where disclosure of the response might have a prejudicial effect on an ongoing investigation or any current or potential legal proceedings.

82. Subject to the Coroner's decision on release and/or publication of the response, the Lord Chancellor may publish the response and send a copy to anyone who may find it useful or of interest.

83. The Coroner cannot impose a sanction on a person who fails to respond to PFD report, but may report the failure to the Chief Coroner.

What to do if you receive a PFD report

84. If you receive recommendations for action from a Coroner, you should immediately inform your line manager and the relevant Head of Operations, who will normally approve HSE's response. Coroners' reports will usually be received following inquests in which HSE has been involved. However, this may not always be the case.

85. Where appropriate, you should contact the relevant Sector and/or Policy Group for assistance. You may seek advice from your legal liaison point (such as FOD Legal and Enforcement) and Legal Adviser's Office if required. Points you will wish to consider before responding include the following:

• Whether HSE is the relevant agency/enforcing authority;
• Whether the report relates to areas more appropriately regulated by a different authority. HSE's policy on section 3 HSWA^[179] and any relevant memorandum of understanding or other protocol should be taken into account. You should be prepared to liaise with other authorities in the event that a joint response is required;
• The factual accuracy of the report's conclusions;
• Whether the recommendations are consistent with legislation, Approved Codes of Practice, HSE guidance and established industry standards or other benchmarks;
• The Enforcement Policy Statement, HSE's current strategy and priorities, and any resource implications.

86. In all cases, a written response must be completed within the required period of 8 weeks, beginning with the day on which the report was sent. There may be occasions on which it is not possible to respond fully by this date, for example, where significant policy work is required In such a situation, you should send an application for an extension of time to the Coroner, setting out your reasons for the request. The length of any extension is at the discretion of the Coroner.

87. Where a response is required and HSE's investigation is not yet complete, or if enforcement action is proposed but has not yet been instigated or concluded, the response may explain that the matter is still ongoing and a more substantial reply will follow once a decision on enforcement action has been taken or such action has been completed. However, you should aim to respond as fully as possible without compromising the ongoing investigation; it may be possible to address the Coroner's concerns in general terms, so as to avoid such a risk of prejudice.

88. You should bear in mind that HSE's response will normally be disclosed to each interested party to the inquest (including the bereaved family), and to any other person whom the Coroner believes may find it useful or of interest. As stated above, HSE may make written representations to the Coroner regarding the disclosure of its response and such representations should be sent no later than the response itself. The Coroner has a discretion as to whether to accept the representations and wherever possible, therefore, the response should be drafted as a fully open document. Where this is not possible and the Coroner indicates that s/he does not intend to accept HSE's representations, you should immediately contact your legal liaison point or Legal Adviser's Office for advice.

89. Where HSE is to take action as a result of the Coroner's report, you should explain what HSE will do and give approximate timescales.

90. However, as explained above, a person in receipt of a PFD report may decide not to take action as a result of the Coroner's recommendations. Where such a decision has been reached, the written response should explain why and set out HSE's reasons in full.

91. In all cases, a copy of the response as sent should be recorded on TRIM in folder 4.9.5889. The document title should include "PFD report – final response – inquest touching on the death of [name]".

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Footnotes

1. Section 1 of the 2009 Act. Back to reference of footnote 1
2. Section 5(1) of the 2009 Act. Back to reference of footnote 2
3. Section 6 of the 2009 Act. Back to reference of footnote 3
4. Section 4 of the 2009 Act. Back to reference of footnote 4
5. Rule 8 of the 2013 Inquest Rules. Back to reference of footnote 5
6. [1994] 3 All ER 972. Back to reference of footnote 6
7. [1994] 4 All ER 139. Back to reference of footnote 7
8. Simon Brown, LJ at p.155. Sir Thomas Bingham, MR stated at p.164 that the court in Jamieson "did not, however, rule that the investigation into the means by which the deceased came by his death should be limited to the last link in the chain of causation. That would not be consistent with the court's conclusion…which emphasised the need for full, fair and fearless investigation and the exposure of relevant facts to public scrutiny, and it would defeat the purpose of holding inquests at all if the inquiry were to be circumscribed in the manner suggested. It is for the coroner conducting an inquest to decide, on the facts of a given case, at what point the chain of causation becomes too remote to form a proper part of his investigation. That question, potentially a very difficult question, is for him." Back to reference of footnote 8
9. The ECHR was incorporated into domestic legislation by the Human Rights Act 1998. Back to reference of footnote 9
10. R (on the application of Takoushis) v HM Coroner for Inner North London & Others [2005] EWCA Civ 1440. Back to reference of footnote 10
11. R v HM Coroner for the Western District of Somerset & Another, ex parte Middleton (FC) [2004] UKHL 10. An inquest, being the means by which the state ordinarily discharged its procedural obligation to investigate under Article 2 of the Convention, ought ordinarily to culminate in an expression, however brief, of the jury's conclusion on the disputed factual issues at the heart of the case. The only change needed to the current regime was to interpret the word 'how' in the rules ('how … the deceased came by his death') as meaning not simply 'by what means' but 'by what means and in what circumstances'. That could be done by inviting an expanded form of verdict, by inviting a narrative form of verdict in which the jury's factual conclusions were briefly summarised, or by inviting the jury's answers to factual questions put by the Coroner. If the Coroner invited a narrative verdict or answers to questions, he might find it helpful to direct the jury with reference to some of the following matters: where and when the death took place; the cause or causes of such death; the defects in the system which contributed to the death; and any other factors relevant to the circumstances of the death. Back to reference of footnote 11
12. R (on the application of Takoushis) v HM Coroner for Inner North London & Others [2005] EWCA Civ 1440. In cases where a death may have been caused by medical negligence in an NHS hospital, the 'standard' form of inquest will, together with the possibility of criminal, civil and disciplinary proceedings, satisfy the obligation on the state to carry out a public investigation of the facts that will be practical and effective. The Court was concerned that Article 2 might be engaged in every case in which there are grounds to indicate negligence by the state. The obligation to carry out an 'effective investigation' should not always require an enhanced inquest where other proceedings (such as a prosecution or civil action) might also ensure accountability. Back to reference of footnote 12
13. R (on the application of Longfield Care Homes Ltd) -v- HM Coroner for Blackburn & Others [2004] EWHC 2467 (Admin). Back to reference of footnote 13
14. R (on the application of Takoushis) v HM Coroner for Inner North London & Others – see footnote 9 above.
15. The Court stated that, where a vulnerable person was under the care of an NHS Trust, they were "satisfied that Article 2 is engaged in the sense that it gives rise to certain obligations on the part of the state whenever a person dies in circumstances which give reasonable grounds for thinking that the death may have resulted from a wrongful act of one of its agents".
16. See the Takoushis case above.
17. See, for example, R (on the application of Peter Dennis) v Director of Public Prosecutions [2006] EWHC 3211 (Admin). Back to reference of footnote 17
18. [1997] 3 WLR 758. Back to reference of footnote 18
19. Where a Coroner is informed by the Director of Public Prosecutions (DPP) that a person has been charged with a criminal offence that is connected with the death in question (other than one of the specified offences where an adjournment is required – see 'Factors determining the chronology' above), the Coroner will suspend  the inquest until after the conclusion of the criminal proceedings if requested to do so by the DPP (Para 2 Schedule 1 of the 2009 Act) ). Back to reference of footnote 19
20. The Times, 20 October 1992. Back to reference of footnote 20
21. Section 5(1) of the 2009 Act. Back to reference of footnote 21
22. Section 10(2) of the 2009 Act. Back to reference of footnote 22
23. Regulation 13 of the Coroners (Investigations) Regulations 2013. Back to reference of footnote 23
24. This rationale is given in the Home Office Newsletter No.35 (item 6), 30th April 2001. Back to reference of footnote 24
25. "a person appointed by, or representative of, an enforcing authority" – Section 47 (2)(h) of the 2009 Act. Back to reference of footnote 25
26. Rule 23(2)). Back to reference of footnote 26
27. [2001] EWCA Admin 170. Back to reference of footnote 27
28. You are likely to be charged for a transcript of the inquest. Back to reference of footnote 28
29. See Bird v Keep [1918] 2 KB 692, where the findings of a Coroner's jury as to the cause of death and the record of the evidence upon which their decision was reached were inadmissible in a claim for compensation for personal injury and death. Back to reference of footnote 29
30. Rule 26 of the Inquest Rules 2013. Back to reference of footnote 30
31. Section 10(2) of the 2009 Act. Back to reference of footnote 31
32. R v HM Coroner for the County of West Yorkshire ex parte Sacker [2004] UKHL 11. Back to reference of footnote 32
33. Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223. For further guidance on 'Wednesbury unreasonableness', see [Judge over HSE's shoulder SE219]. Back to reference of footnote 33
34. Regulation 29(7). Back to reference of footnote 34
35. Regulation 29(6). Back to reference of footnote 35
36. Regulation 29(4). Back to reference of footnote 36
37. Regulation 29(5). Back to reference of footnote 37
38. Regulation 29(6). Back to reference of footnote 38