Written evidence from the Ministry Of Justice

Executive Summary

  1. Around 40% to 45% of all deaths are reported annually to coroners in England and Wales for investigation, of which about 15% proceed to an inquest[1]. It is therefore crucial that the coroner system delivers the highest quality service and is efficient and fair whilst meeting the needs of the bereaved.

 

  1. Since the Coroners and Justice Act 2009 (“the 2009 Act”) and a suite of Rules and Regulations underpinning it came into force in July 2013, the Government has introduced a series of policy changes to provide more resilience, consistency and fairness in the coronial system. Key measures were made under the 2009 Act, in particular establishing the office of Chief Coroner and the more recent appointment of two Deputy Chief Coroners.

 

  1. Separately, the Department of Health and Social Care (DHSC) has been working to implement a system of medical examiners to review non-coronial deaths, as provided in the 2009 Act. Alongside this, the Ministry of Justice (MoJ) has introduced regulations placing a statutory duty on all medical practitioners to report certain deaths to coroners. However, many new measures have gone beyond legislative requirements and we have pursued a number of further initiatives, in particular to improve the bereaved families’ experience of coroner services.

 

  1. In 2015, the MoJ undertook a post-implementation review of the 2009 Act, consulting a range of stakeholders. The results of this review have not yet been published but evidence from the consultation exercise has informed policies detailed in this memorandum.

 

  1. This memorandum gives an overview of key developments since the 2009 Act was implemented, including policy and legislative changes, emerging issues and the Government’s action to address them. At this stage, the MoJ would highlight that it is not responsible for coroner services in Northern Ireland or death investigation in Scotland.

 

  1. The following sections correspond to the seven points on which the Justice Select Committee seeks views.

The extent of unevenness of Coroners services, including local failures, and the case for a National Coroners Service

Organisation of the coroner service

  1. Coroners are independent judicial office holders who investigate deaths in certain defined circumstances in their area to establish who the deceased was and how, when and where they died. They are appointed by local authorities, with the consent of the Chief Coroner and the Lord Chancellor.

 

  1. Each coroner area covers one or more local authorities. There are currently 85 coroner areas, each headed by a salaried senior coroner and supported by fee-paid assistant coroners who work on a sessional basis. Some areas have also appointed a salaried area coroner.

 

  1. Coroner services are funded by the responsible local authority or lead local authority where the area covers more than one local authority. In many cases, local police forces provide staff who work as coroner’s investigating officers.

 

  1. The MoJ previously considered the merits of establishing a National Coroner Service. It concluded, however, that a national organisation might not be appropriate and did not offer a cost-effective solution to address problems of the system. Instead, we considered that preserving the benefits of a locally based service whilst introducing national leadership through a Chief Coroner was a better approach.

The Chief Coroner

  1. The Chief Coroner is the judicial head of the coronial system – his key mission is to provide national judicial leadership and promote consistent practice through guidance and support to coroners. He also exercises statutory functions and powers including powers relating to global case management.

 

  1. In September 2012, the Lord Chief Justice appointed His Honour Sir Peter Thornton QC as the first Chief Coroner of England and Wales. Sir Peter retired in October 2016. He was replaced by HHJ Mark Lucraft QC who has combined the role with sitting at the Central Criminal Courts initially as a Senior Circuit Judge but since April 2020 as the Recorder of London[2].

Coroner area mergers

  1. Since July 2013, the MoJ has facilitated the merger of 25 coroner areas, invariably on a senior coroner retirement, bringing the total number from 110 in 2012 to 85 today. The MoJ’s long-term joint target with the Chief Coroner is to reduce the number of areas to around 75.

 

  1. Mergers provide significant benefit to coroner services and their users as they standardise processes and procedures under the leadership of a single senior coroner. Additionally, they enable best practice to be more easily be shared within the coronial team and centralised administrative systems allow for more efficient coordination across a larger area, as well as providing economies of scale. This in turn leads to a modern, more resilient and consistent service for bereaved families.

 

  1. The Chief Coroner has developed a Model Coroner Area blueprint which sets out the ideal size of a coroner area, alongside other parameters.

Medical examiners

  1. In April 2019, a non-statutory medical examiners system began implementation in NHS Trusts in England and Health Boards in Wales and Dr Alan Fletcher was appointed the first National Medical Examiner for England and Wales.

 

  1. Senior coroners have worked closely with their local NHS Trusts and Health Boards as the medical examiner system has been established and medical examiners have been appointed to ensure that deaths that require the input of the coroner are appropriately referred. The medical examiner system will move to a statutory system when parliamentary time allows.

Notification of deaths

  1. On 1 October 2019, The Notification of Deaths Regulations 2019 came into force requiring registered medical practitioners to notify coroners of deaths in specified circumstances, bringing greater consistency in the way deaths are reported.

 

Post-mortem examinations

19.  Coroners have powers to order a post-mortem examination by suitably qualified practitioners as part of their investigation into the cause of death. Over 80,000 coronial post-mortem examinations are ordered annually[3]. These include autopsies, toxicological analysis of tissues and other samples, and MRI or other scans of the body. In cases that are subject to a criminal investigation, the coroner will instruct a pathologist from the six forensic pathology group practices registered by the Home Office.

20.  Pathology resources can vary and we are aware that some coroners are experiencing difficulty in identifying local pathologists to perform post-mortem examinations. We are also mindful of the impact any delay can have on the bereaved. Together with the Chief Coroner, and with those other Government departments involved in pathology services, we are considering how best to address the problem.

The Coroners Service’s capacity to deal properly with multiple deaths in public disasters

Funding of inquests

  1. Coroner services are local services, funded by individual local authorities but the Government occasionally provides exceptional financial support to local authorities on a case-by-case basis where an inquest (or inquests) results in substantial costs. Most recently, central Government funded the costs of the Manchester Arena inquests before they were converted into a public inquiry.

 

Mass fatality incidents and disaster response

  1. The Chief Coroner leads training and guidance on disaster victim Identification and has set up a cadre of specialist coroners. This is a highly technical and difficult process, and the MoJ commends the very important work of those coroners involved.

 

  1. As part of the Government’s wider Victims’ Strategy, the MoJ ran a 12-week consultation on proposals for an Independent Public Advocate (IPA) from September to December 2018. This was to explore how and whether a new body could support existing systems and procedures for investigating deaths and supporting those directly affected. We will publish the Government’s response to the consultation in due course.

Ways to strengthen the Coroners’ role in the prevention of avoidable future deaths

Coroners conclusions

  1. The purpose of the coroner’s investigation is to establish who died, and how, when and where they died. A ‘short form’ conclusion may be issued and, where there is insufficient evidence, an ‘open’ short-from conclusion can be given. Sometimes a more detailed ‘narrative’ conclusion about the death may be given, in addition or as an alternative to one of the short-form conclusions[4].

 

  1. We are aware of calls for coroners to record further personal information about the deceased and their background, especially in suicide inquests. The Government recognises that such information can improve the identification of “at risk” groups and, from that, support better targeted interventions. However, it is essential that the information collected is reliable, consistent and comprehensive, and, for a number of practical and administrative reasons, this is not possible in the context of coroner conclusions. There are no plans, therefore, for coroners to record such additional information.

 

  1. The Government is working to improve understanding of suicide causes and committed to address suicide risk in the latest progress report on the National Suicide Prevention and Self-Harm Strategy[5] and the Cross-Government Suicide Prevention and Self-Harm Workplan[6] (last published in January 2019). Both the MoJ and the Chief Coroner’s Office are members of the National Suicide Prevention Strategy Working Group, chaired by the DHSC.

Reports to prevent future deaths

  1. Where anything in the coroner’s investigation or inquest indicates a risk that other deaths may occur under similar circumstances, the coroner must issue a report to prevent future deaths (PFD)[7] to those who may be able to mitigate that risk. Anyone issued with a PFD report is required to respond in writing setting out what action they have taken or will take in response to the report. PFD reports play a key role in preventing future deaths.

 

  1. Coroners must send a copy of any PFD report they make and any response to the Chief Coroner[8]. The Chief Coroner received 505 such reports in the year to 30 June 2019 and 386 in the year to 30 June 2020.

 

  1. We are aware of criticism that there is no requirement for PFD reports to be acted on. However, a PFD report is a recommendation that action should be taken – it does not set out what this action should be, which is a matter for the recipient. The coroner’s role does not extend to reviewing, commenting on or ‘policing’ compliance with the contents of a PFD report.

Standard of proof in inquests

  1. The standard of proof for all short-form and narrative conclusions is the civil standard (“on the balance of probabilities”), except for unlawful killing and suicide where the standard is the criminal standard (“beyond reasonable doubt”)[9].

 

  1. However, on 10 May 2019, the Court of Appeal upheld the High Court’s decision in R (Maughan) v Her Majesty’s Senior Coroner for Oxfordshire[10] that the civil standard should be applied to all suicide determinations, including both short-form and narrative conclusions. The Supreme Court is currently considering its judgment on whether the civil standard should apply in the appeal against the Court of Appeal’s decision.

 

  1. The MoJ has not sought to intervene in the case and will not make any comment on the issue whilst it is before the courts.

Coroners investigations of stillbirths

  1. The MoJ and the DHSC ran a consultation on proposals for whether, and if so how, to extend coronial jurisdiction to cases of stillbirths from March to June 2019. A response to the consultation will be published shortly.

How the Coroners Service has dealt with COVID 19

  1. Coroner services have been greatly impacted by COVID-19. ONS data on numbers of reported deaths will be available in 2021. Coroners and their staff have also had to adapt to lockdown measures, especially in how their offices and courts were run, as well as in the conduct of inquests, many of which have had to be adjourned or postponed.

 

  1. The MoJ is very appreciative of the efforts of coroners and their staff to manage the impacts of the pandemic, including their participation in Local Resilience Fora.

Changes to jury requirement for COVID-19 deaths

  1. The MoJ took measures to support coroner services during the COVID-19 crisis and to prevent delays in death investigation which could have had a significant impact on bereaved families. In particular, section 30 of the Coronavirus Act 2020 amended the 2009 Act by disapplying the requirement for a jury in inquests into COVID-19 deaths during the emergency period[11]. Coroners retain the discretion, however, to hold a jury inquest in appropriate COVID-19 cases.

Changes to Notification of Deaths Regulations 2019

  1. Section 18 and schedule 13 to the Coronavirus Act also amended the operation of the Births and Deaths Registration Act 1953 (and the Regulations it underpins) and the Notification of Deaths Regulations 2019 so that any registered medical practitioner, including those who had not attended the deceased, could certify the cause of death, avoiding natural cause deaths being unnecessarily referred to coroners during the pandemic. Nevertheless, anyone, including a medical practitioner or registrar, could still refer a death to the coroner where they had concerns about its circumstances.

Progress with training and guidance for Coroners

Chief Coroner’s training and guidance

  1. It is the Chief Coroner’s responsibility to provide training and guidance to coroners and coroner’s officers. The MoJ supports the development of such guidance and training.

Improvements in services for the bereaved

  1. A central aim of the 2009 Act was to put bereaved people at the heart of the inquest. Much has been achieved since 2013 with evidence of excellent practice. However, we knew more could be done and the MoJ has taken forward a number of workstreams to make inquests more sympathetic to the needs of bereaved people and ensure they are supported throughout.

 

  1. This was particularly in light of the reports of Dame Elish Angiolini QC’s Independent Review of Deaths and Serious Incidents in Police Custody[12] and Bishop James Jones’s review of the Hillsborough families’ experiences[13] (both published in 2017) Both reports found that families did not always feel supported and that inquests were not always as sympathetic to their needs as they should be.

 

  1. Additionally, the MoJ’s Review of Legal Aid for Inquests[14] (published February 2019), gathered evidence that showed inquests can appear adversarial rather than inquisitorial because lawyers who represented at inquests did not always behave appropriately.

 

  1. The package of measures includes the following:

 

  1. A revised Guide to Coroner Services for Bereaved People published on 28 January 2020 and available online at gov.uk[15] in English and Welsh[16]. This new version, developed with the support of a wide range of stakeholders, including bereavement charities, is more accessible and tailored to the needs of the bereaved.

 

  1. A Protocol for lawyers the Government instructs when it is an interested person at inquests. The Protocol’s aim is to support the inquests’ inquisitorial approach and ensure that Government-instructed lawyers assist the coroner in finding the truth and learning lessons. It was published along with the revised Guide in January 2020 and is included within the Guide[17]. Departments are encouraged to include a copy of the protocol when they instruct a lawyer for inquest work.

 

  1. The Protocol does not apply to other public bodies (such as the police or NHS Trusts) as the Government does not have control over lawyers they may instruct. However, we consider it to be a model that such bodies and their lawyers (if instructed) might adopt at inquests. 

 

  1. A conference for lawyers on 30 January 2020 to encourage and support the use of an inquisitorial advocacy style at inquests. This was aimed at lawyers who represent Government departments and public bodies as well as those who represent families. It took place at the Ministry of Justice HQ and was well-attended.

 

  1. Supporting the Bar Standards Board and Solicitors Regulation Authority in developing inquest-specific information to guide lawyers who represent at inquests, such as the competencies this requires, and a toolkit. Final decisions on what resources may be required lie with the regulators who are independent of Government.

 

  1. Non-financial support. Dame Elish Angiolini’s and Bishop James Jones’ reports highlighted that bereaved families could not always access support during inquests. The then Government’s October 2017 response to Dame Elish[18] and its response of November 2018 to Bishop James’ report on Gosport War Memorial Hospital[19] stated that the Government would consider extending support services to all coroner’s courts. Evidence gathered for the Review of Legal Aid for Inquests also found that availability of support services was inconsistent and the Review’s Report committed to running a competition to expand support services, subject to affordability.

 

  1. Officials are working through a number of commercial and legal issues that have arisen on this. Taking forward a non-legal support service depends on identifying funding.

 

  1. A stakeholder forum. The MoJ has re-established this forum to engage with other Government departments and external stakeholders to consider what more could be done to ensure that our work meets the needs of bereaved families and that the inquest process is inquisitorial.

Fairness in the Coroners system

Legal aid for inquests

  1. The Review of Legal Aid for Inquests underlined the importance of inquests remaining inquisitorial.

 

  1. There is a case for reviewing the thresholds and criteria for legal aid entitlement, as Dame Elish Angiolini emphasised[20], especially where the state has a duty of care. This will therefore be considered as part of our Legal Aid Means Test Review.

 

  1. We previously stated that the Means Test Review would conclude in late Summer 2020. Due to COVID-19 we now plan to conclude the review in Spring 2021 with the publication of a consultation paper setting out our future policy proposals. We will seek to implement any recommendations as soon as practicable.

 

  1. Legal representation may be available for bereaved families at inquests through the exceptional case funding scheme, subject to means and merits criteria being met.

 

  1. Applications received by the Legal Aid Agency are considered on an individual basis and it is important that these decisions are, and are seen to be, free from political and Government influence.

Deprivation of Liberty Safeguards

  1. In April 2017, we removed the requirement for an inquest to be held in all cases where the deceased had a Deprivation of Liberty Safeguard in place at the time of death, relieving tens of thousands of bereaved families from an unnecessary investigation where it had been established that the deceased had died of natural cause.

Judicial conduct

  1. As independent judicial office holders, coroners cannot be removed from office by their local authority. However, the Lord Chief Justice, with the agreement of the Lord Chancellor, can exercise a number of disciplinary powers, including issuing a coroner with formal advice, a formal warning or reprimand, or removal from office for “incapacity or misbehaviour” [21]. Complaints against a coroner are investigated by the Judicial Conduct Investigations Office which makes recommendations to the Lord Chief Justice and the Lord Chancellor.

 

  1. The Ministry of Justice considers that existing disciplinary powers are entirely consistent with those for other forms of judicial appointment and are appropriate.

Faith considerations

  1. On 27 April 2018, the High Court ruled that a coroner could not “lawfully exclude religious reasons for seeking expedition of decisions”[22]. This followed the policy of the senior coroner for Inner North London not to prioritise the investigation of deaths because of the faith requirements of the deceased or their family.

 

  1. Following the court judgment, the Chief Coroner issued his Guidance No. 28 Report of Death to the Coroner: Decision Making and Expedited Decisions[23] on 17 May 2018. The MoJ respects the decision of the High Court and will not make further comments.

 

  1. We recognise that certain faith groups prefer the use of non-invasive methods of post-mortem examination. The choice of post-mortem tests, however, is for the coroner alone who commissions such tests as are the most likely to produce relevant information on the cause of death.

Appealing a coroner’s decision

  1. Where someone is concerned that a coroner should have held an investigation, including an inquest, into a death, or that an inquest conclusion should be quashed, they can apply to the High Court with the authority of the Attorney General for a determination on whether an investigation or inquest should be held, or the conclusion quashed. The High Court can order an investigation, or another investigation to be held into the death by the coroner concerned, or another coroner in the same coroner area, or quash the conclusion.

 

  1. In 2019, the Attorney General declined to apply to the High Court in the one case where a person was dissatisfied that the coroner had refused to open an inquest. In 2019, the Attorney General received 15 applications to apply to the High Court where a person was dissatisfied with the conclusion of an inquest and applied to the High Court on four occasions.

 

  1. A coroner’s decision can also be judicially reviewed if the relevant criteria for application are met.

 

  1. The MoJ believes that these procedures provide effective and appropriate mechanisms for ensuring that inquests are held whenever they are required and that coroners’ decisions can be challenged.

 

September 2020

 

 


[1] The Ministry of Justice publishes annual reports on deaths referred to and investigated by coroners. All the reports and statistical tables are available on https://www.gov.uk/government/collections/coroners-and-burials-statistics.

[2] An exercise to recruit a new Chief Coroner was launched in June 2020 with the aim for an appointment to take effect as from 1 October 2020.

[3] 82,072 post-mortem examinations were held in 2019.

[4] See the Schedule to The Coroners (Inquests) Rules 2013.

[5] https://www.gov.uk/government/publications/suicide-prevention-fourth-annual-report

[6] https://www.gov.uk/government/publications/suicide-prevention-cross-government-plan

[7] Paragraph 7(1) of Schedule 5 to the Act and Regulation 28 of the Coroners (Investigations) Regulations 2013

[8] Regulation 28 of the Coroners (Investigations) Regulations 2013

[9] As set out in Form 2, Schedule to The Coroners (Inquests) Rules 2013,

[10] [2019] EWCA Civ 809, https://www.bailii.org/ew/cases/EWCA/Civ/2019/809.html.

[11] This was an unintended requirement arising from the obligation to report Covid-19 cases to Public Health England.

[12] https://www.gov.uk/government/publications/deaths-and-serious-incidents-in-police-custody

[13] https://www.gov.uk/government/publications/hillsborough-stadium-disaster-lessons-that-must-be-learnt

[14] https://www.gov.uk/government/publications/review-of-inquests

[15] https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/859076/guide-to-coroner-services-bereaved-people-jan-2020.pdf

[16] Ibid.

[17] Annex A: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/859076/guide-to-coroner-services-bereaved-people-jan-2020.pdf

[18] https://www.gov.uk/government/publications/deaths-and-serious-incidents-in-police-custody-government-response

[19] https://www.gov.uk/government/publications/gosport-independent-panel-report-government-response

[20] https://www.gov.uk/government/publications/deaths-and-serious-incidents-in-police-custody

[21] Paragraph 14 of Schedule 3 of the 2009 Act, and Chapter 3 of Part 4 of the Constitutional Reform Act 2005.

[22] https://www.judiciary.uk/wp-content/uploads/2018/04/aybs-v-hmcoroner-judgment.pdf

[23] https://www.judiciary.uk/wp-content/uploads/2018/05/guidance-no-28-report-of-death-to-the-coroner-2010517.pdf