Written evidence from  Nicola Padfield QC (Hon) MA Dip Crim DES, Professor of Criminal and Penal Justice, University of Cambridge, Life and Honorary Fellow, Fitzwilliam College, Cambridge

 

The Coroner Service

I am delighted that you have decided to explore this important topic.  I write as a Professor of Criminal and Penal Justice in the Faculty of Law of the University of Cambridge.  In late November 2019, I started to research the effectiveness of inquests in a criminal justice context (a summary of the project is attached as Appendix One).  I also attach, as Appendix Two, a digest of some relevant literature which may be of use to your inquiry, which includes the references mentioned in this response(I have also recently attended, by video link, an inquest into the suicide of a close family member, so should perhaps register a personal as well as a professional interest).

 

Here I offer a brief answer to your questions, grounded in that literature:

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

I am not (yet) convinced that the major problem is so muchunevenness’ in services, but more in the wide variety of deaths which coroners have to investigate and the quality’ of individual coroners and their staff (‘officers’)Coroners need extraordinary skills:  energy and curiosity, determination, integrity, neutrality, empathetic communication skills, excellent understanding of law and medicine, team leadership and case management skills (see Dillon (2015)). (This is relevant for judges sitting in other contexts:  today’s judges need to be much more focused on solving problems, and on leadership, than was traditionally the case, when they could simply be selected from the ‘best legal minds’).

There is also a need to understand the training, skills, role and performance of coroners’ officers.  What happens before an inquest by way of preparation is clearly vital.  Some are serving or erstwhile police officers, or civilian police staff Others have a much broader background.  Their terms and conditions are not standard, nor are their job descriptions, roles and responsibilities. Probably the variations in the performance of officers is greater across the country than the variations in coroners’ performance?

I am also not (yet) convinced that a local service is necessarily a bad thing.  Although Dame Elish Angiolini’s Independent Review (2017) made the case for a national service, the disadvantages are also clear.  The authority and legitimacy of the coroner may well be strengthened by a strong local connection.  Central control’ could lead to unhelpful ‘managerialism’.  Before I made up my mind here, I would want to see much greater analysis of these ‘local failures’. 

Another difficult question concerns when an inquest should become a public inquiry.  Issues to consider include funding, delays, confidentiality (closed hearings) and effectiveness.  We must start by working out what the inquest is designed to effect: ‘learning lessons’ to prevent (or minimise the risk of) future unwanted deaths in similar circumstances should be the basic aim.  Changing practice is much more difficult to effect than simply pointing a finger of blame.  Your inquiry might want to focus on who should do this learning: not just individuals and organisations, but also the Government and others in positions of leadership.

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

As I mention above, one of the ‘mysteries’ of the current system is the blurred line between inquiries and inquestsWhen and why do some inquests become inquiries, when others don’tWhat is the role for ‘independent inquiries (see Scraton, 2020)?  Another crucial issue is the inquest process.  It is an inquisitorial process, focused on finding the truth, and yet it can become a gladiatorial contest between advocates.  In many contested cases, or cases involving multiple deaths, the process becomes (unhelpfully?) adversarial and accusatorial.  The interests of the parties are often polarised.  A skilled coroner (and the jury) must remain focused on the core function:  discovering what really happened in order that lessons may be learnt.  We currently have a curious division between what are known as Article 2 inquests and others.  In both, the coroner sticks to the remit of who, how, when and where’.  But the ‘how’ is interpreted more expansively in Art 2 inquests: not just ‘by what means’ but ‘in what circumstances’.  But the reality is that, if lessons are to be learnt, if the state is to take appropriate measures to safeguard life, the ‘how’ has to be interpreted even more expansively ‘why might this have happened’ (which includes identifying what went wrong).  Of course the inquest must explore facts which have some bearing on criminal and civil liability (despite s. 10(2) of the Coroners and Justice Act 2009).  The inquest should focus on truth-finding for problem-solving.  But speaking truth to power is never easy.

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

A crucial question.  I suspect that we need to understand much better the process of ‘learning’ at this scale.  The committee will want to explore Regulation 28 Reports (Reports to Prevent Future Deaths).  When does a coroner decide to issue one?  To whom is it addressed? It seems to me that there is rarely any follow up.  They become a ‘dead end: see Moore (2016), Sutherland and others (2014).   The Chief Coroner’s Office should be resourced (whether or not there is a National Service) to publish an annual report along the lines of the PPO’s Learning Lessons reports.  But this is of course just the start:  improving processes must lead to a change in culture, which is much more difficult to effect (see Jones, 2017).  The website of PFD reports https://www.judiciary.uk/related-offices-and-bodies/office-chief-coroner/https-www-judiciary-uk-subject-community-health-care-and-emergency-services-related-deaths/ and https://www.judiciary.uk/subject/prevention-of-future-deaths/ are very difficult to search, and it is also impossible for an external researcher to know whether she has found all relevant reports.  It should be an urgent priority to make the website more ‘user friendly’.

 

The role of the coroner has to be seen in context:  there is often a wasteful duplication of investigations and inquiries.  I hope that the Committee will also explore the relationship between inquests and other, often parallel, investigations. In the criminal justice field these will include internal reviews, police investigations, Safeguarding Boards, Serious Further Offence Reviews,  NHS reviews etc

 

Another area to explore, perhaps, is the narrative conclusion, the use of which has developed enormously in the last 20 years: it has proven both advantageous (empowering the jury or coroner to say what they mean: see Coles and Shaw, 2012) and problematic (making analysis of data more difficult: see Carroll et al, 2012; Hill and Cook, 2011). 

  1. How the Coroners Service has dealt with COVID 19

My limited experience/knowledge is that they have adapted by going digital.  The coroner’s equipment is sometimes far from perfect, but the ability to participate in ‘routine’ inquests without the need to travel has been widely welcomed by some families.  ‘Hearings’ must of course remain in the public space.  And, in contentious cases, it is vital that the parties can engage freely.

  1. Progress with training and guidance for Coroners

I can’t comment on this, save to repeat the key attributes required of the coroner mentioned in my answer to question 1.  These attributes can be strengthened by good training.  My concern (and that of many other academic commentators: see Appendix 2) is why the focus of an inquest often remains on a narrow interpretation of causation:  your inquiry might question the proper scope of an inquest.   The Chief Coroner suggests that they are not the right forum for addressing concerns about high level government or public policy.  And yet if the coroner does not speak out, who will?  What is ‘appropriate’ is obviously something to be debated. The coroner’s role is not simply to provide comfort to bereaved families, but to identify failings, including systematic failings, and to make recommendations (more or less detailed) for their resolution.  Empowering coroners to seek appropriate answers is an important function of training (for coroners’ officers as well as coroners).

  1. Improvements in services for the bereaved

The practical support offered has improved with the creation of the Coroners’ Courts Support Service.  The role of NGOs such as INQUEST remains vital.  Of course, the bereaved also need generous legal advice and assistance (see Lord Bach, 2017).  This is vital – families are often very ill-equipped to deal with the ‘adversarial’ nature of contested inquests.

  1. Fairness in the Coroners system

Is the system fair?  To whom?  Is it perceived to be fair?  Public scrutiny is vitally important.  As I have already suggested, there is an uncertainty at the heart of the process:  the coroner seeks the ‘cause’ of death – but is that to be widely construed to include the allocation of blame?  The inquest should be a method of holding public bodies to account: the preventive function is vital.

The summary of your Inquiry reports that you plan to investigate not only effectiveness but also progress in improving bereaved people’s experience of the Coroner service.  Of course, it is important to interrogate bereaved people’s experiences of the system, and to improve them.  But it is equally important to recognise, particularly in the context of the inquests I am examining, that bereaved families appear to want, more than anything, lessons to be learnt from the deaths of their relation.  I hope that you will conclude that the inquest is an important symbolic and public institution, to be strengthened, not curtailed.

18 August 2020

 

Appendix One

 

The effectiveness of inquests 2020: a small research project by Professor Nicola Padfield (Law Faculty, University of Cambridge; Life and Honorary Fellow, Fitzwilliam College, Cambridge)

 

 

Introduction

As an academic lawyer sitting at the ‘boundary’ of criminal, criminology and public law, I have long been concerned by questions of accountability and process.  This exploratory study has arisen out of two different strands of my recent research:

(i)                 My work on parole and recall to prison (see references, for examples).  This has explored the challenges facing prisoners and the up-hill struggle they face seeking to convince the Parole Board to release or re-release them. 

(ii)               My work with Professor Loraine Gelsthorpe and Dr Jake Phillips on deaths (in particular suicides) of those recently released from prison (see summary references below).  It is clear that compared with the detailed investigations which follow a death in custody, many deaths in the community are barely investigated.

 

This has led to an interest in exploring the effectiveness of investigations into what might be called ‘criminal justice-related deaths’.  The role of the coroner’s inquest in helping organisations learn from any possible mistakes or process flaws is clearly important.  Yet how the inquest process ‘fits in’ with other review processes is under-explored.  There has been little research since the important changes to the system effected by the Coroners and Justice Act 2009, which came into force in 2013.  For example, an important aspect of this project is to examine what are known as Regulation 28 PFD Reports (Prevention of Future Death Reports).  If, after an inquest, a coroner is concerned that action needs to be taken, he or she has a duty to issue a Report to a person, organisation, local authority or government department or agency, setting out their concerns, and requesting that action be taken. The people and organisations in receipt of the Report have 56 days to respond to the coroner.  All Regulation 28 Reports and the responses are sent to the Chief Coroner, and in most cases the Chief Coroner then publishes both the reports and responses on the judiciary.gov.uk website.  I am unaware of any academic analysis of these reports.

 

Research questions

Does an inquest provide an effective investigation into criminal justice-related deaths?

Is there evidence of how individuals or organisations learn from the outcome of an inquest?

Does the coroner have appropriate powers to facilitate learning?

 

Methodology

This research will involve:

  1. A critical review of the relevant literature: particularly that published since 2013.  This will involve the ‘official’ literature as well as the academic.
  2. Interviews and focused discussions with a number of coroners and lawyers who appear at inquests.
  3. Analysis of three different types of inquests:

 

  1. Inquests into the deaths of those who die on licence (probably, only the suicides)
  2. Inquests into the deaths of those who have  been killed by those on license
  3. Inquests into the deaths of those who have been recalled to prison following either automatic half-time release, or on the direction of the Parole Board.

 

These three types were selected as they are all ‘criminal justice-related’ and yet appear to be treated very differently in practice.  Type (i) receive the least public attention.  Type (ii) often attract huge media attention.  For example, since I first discussed this project with the Chief Coroner, the killings at Fishmongers Hall have happened.  The offender was on license at the time.  Type (iii) are a subset of deaths in custody, and will, unlike the other types, always result in a jury inquest and in a separate investigation by the Prisons and Probation Ombudsman.

 

Accurate figures are difficult to establish.  I shall explore statistical data, but the focus of my study is more qualitative than quantitative.   I am establishing a small database (probably only 20 cases) of recent ‘case histories’ which fall into these three different categories, seeking to collect as much detail as possible from media reports, coroners, the Prison and Probation Ombudsman, the NGO Inquest and other sources.  After a number of informal conversations with both coroners and lawyers, I shall also carry out semi-structured interviews.  I anticipate that the outcome of my analysis of the individual case histories and of the interviews will include significant conclusions about the effectiveness of the inquest process, and pointers for the focus of future research.  These conclusions will be not only of academic interest: the Chief Coroner has welcomed my research project.

 

Time frame

Feb – April 2020: preliminary work scoping the project

April – August: fieldwork and data collection

August – November: analysis and writing up[1]

 

Outcomes

Difficult to anticipate at this stage, but in the short term, there will be

-          A report (hopefully published as a Faculty Legal Studies Research Paper)

-          Two articles (one for a legal journal and one for a more socio-legal/criminological journal)

In the longer term, I anticipate that this will develop into a bigger project.

 

 

 

References

Padfield, N. (2013) Understanding Recall 2011 (University of Cambridge Faculty of Law Research Paper No. 2/2013)

Padfield, N (2019) Giving and getting parole: the changing characteristics of parole in England and Wales 1967-2019, 11 European Journal of Probation, Vol 3, 153-168

Phillips, J, Gelsthorpe, L and Padfield, N. (2019) ‘Non-custodial deaths: Missing, ignored or unimportant? Criminology and Criminal Justice 160 -178.

Phillips, J., Gelsthorpe, L., & Padfield, N. (2017). Non-custodial deaths: Missing, ignored or unimportant?: Criminology & Criminal Justice. https://doi.org/10.1177/1748895817745939

Phillips, J., Gelsthorpe, L., & Padfield, N. (2019). Deaths While under Probation Supervision: What Role for Human Rights Legislation? The Political Quarterly, 90(3), 439–448. https://doi.org/10.1111/1467-923X.12746

 

Appendix Two

 

A summary of some relevant (mostly recent) literature

 

 

(i)                 History

The coroner has had a very different role and status over the centuries: see Sim, J. and Ward, T. (1994) The Magistrate of the Poor?  Coroners and Deaths in Custody in 19th Century England’ in M. Clark and C. Crawford (eds) Legal Medicine in History, who paint a brilliant picture of the “tangled and contradictory” politics of inquests in 19th century, identifying disputes and rivalries between lawyers and medics; “conflicts between an increasingly centralised state bureaucracy and some of those who held power in and over local communities” (pp. 262-3) and conflict between the locally powerful.  BUT it was also the only court in which working class people could participate as jurors.  (See also Buchanan, D.R. and Mason, J. (1995) ‘The Coroner's office revisited’ 3 Medical Law Review 142-160)

 

(ii)               Recent contrasting inquiries

Angiolini, Dame E. (2017)  Independent Review of Deaths and Serious Incidents in Police Custody (2017) identifies  a coronial system under great pressure of resources, 'ad hoc' and largely dependent on a 'grace and favour' relationship with other agencies. She recommended the establishment of an independent national coroner service 'to address the inconsistencies and fundamental shortcomings in the current local authority-administered structure and the current challenges faced by coroners in devoting resources and time to their approach to complex deaths…'.  The Government says the report has been a catalyst for change….. (what change?).

 

Bach, Lord (2017) The Right to Justice: The final report of the Bach Commission  (Fabian Policy Report).  Proposes a Right to Justice Act: where the state is funding one or more of the other parties at an inquest, it should also provide legal aid for representation of the family of the deceased.

Harris, Lord (2015) Changing Prisons, Saving Lives: Report of the Independent Review into Self-inflicted Deaths in Custody of 18-24 year olds.  A grim account of prison life.  The Chief Coroner should be provided with sufficient resources to enable him to report on themes emerging from prevention of death reports involving deaths in custody

Jones, Rt Rev J. (2017) ‘The patronising disposition of unaccountable power’: A report to ensure the pain and suffering of the Hillsborough families is not repeated, HC 511:  there are families “who have found that when in all innocence and with a good conscience they have asked questions of those in authority on behalf of those they love, the institution has closed ranks, refused to disclose information, used public money to defend its interests and acted in a way that was both intimidating and oppressive. A ‘patronising disposition’ is a cultural condition: what is needed is a change in attitude, culture, heart and mind… 

(iii)            Academic studies

 

(a)   Helpful reflections on the role

Moore, J. (2016) Coroners' recommendations and the promise of saved lives: account from New Zealand of the preventive power of the coroner (the coroner’s prophylactic function).  Two important areas for improvement: (1) consultation with organisations before recommendations are issued; and (2) directing recommendations to the appropriate organisations.

Scott Bray, R. and Martin, G. (2016) ‘Exploring fatal facts: current issues in coronial law, policy and practice’, 12 International Journal of Law in Context 115-140:  coronial investigations are not reducible to mere fact-finding; they perform a much broader meaning-making task around death, and their justice work is complicated: coroners communicate the lessons of death to the broader community, including government agencies and policy-makers…. Yet, mandatory responses to coronial recommendations are required in only some jurisdictions and, even then, there remains the thorny matter of enforceability (p. 121).

Scraton, P. (2020) ‘The Hillsborough Independent Panel and the UK state: An alternative route to “truth”, “apology” and “justice”’ in P. Carlen and L.A. Franca (eds) Justice Alternatives: a passionate argument for independent panels.

 

Sim, J. (2020) Challenging the desecration of the human spirit: An alternative criminological perspective on safety and self-inflicted deaths in prison in P. Carlen and L.A. Franca (eds) Justice Alternatives: a powerful account of the limitations of inquests where “deaths [are] blamed on individual pathology, individual ineptitude and bureaucratic inefficiency whereas the solution does not lie in improving procedures …. the question about the remand and sentencing decisions and practices of the courts need to be questioned as a contributory factor that led directly to murder and suicide”.

Tombs S. and Whyte D. (2008) A Crisis of Enforcement: The Decriminalisation of Death and Injury at Work:  most safety crimes are either undetected or filtered out from official channels of resolution; Snell, K. and Tombs, S. (2011) ‘”How do you get your voice heard when no-one will let you?” Victimization at work’, 11 Criminology & Criminal Justice 207–223:  discusses the disorienting experience of the post-death process: families “helpless lack of control” at inquests.

Wells, C (1991) ‘Inquests, Inquiries and Indictments: The Official Reception of Death by Disaster’ 11(1) Legal Studies 71+ Wells, C. (1996) ‘Disasters: The Role of Institutional Responses in Shaping Public Perceptions of Death’, in R. Lee and D. Morgan (eds), Death Rites: Law and Ethics at the End of Life: significance of initial categorisation and interpretation; “The inquest occupies an important place in allowing, through the jury, a voice for public reproach of corporations for their neglect of safety” (p 214).

 

(b)   Deaths in Custody

 

Baker, D. (2016) Deaths after Police Contact: Constructing Accountability in the 21st Century: evaluates “the systems and processes used to construct accountability”, particularly the ambiguous, uncertain, and symbolic relationship between IPCC, coroners and the police;  Baker, D. (2019) ‘Using narrative to construct accountability in cases of death after police contact’ 52 Australian and NZ Journal of Criminology 60-75:  Looked at 68 narrative verdicts 2004-15 (of 1,539 who died after police contact):  narratives both enable and constrain the capacity of institutions to learn lessons. 

 

Tomczak, P. (2018) Prison suicide: What happens afterwards? looks at the burden that these investigations impose on bereaved families and on prison staff.  Underlines that if you want to prevent suicide in prison, you need to create a system which sends fewer people with mental ill health, drug and alcohol dependency to prison in the first place: many deaths in custody are not aberrations, but foreseeable outcomes of marooning very sick people in prison.   She argues that government deserves more shaming and that there is merit in directing succinct criticism to the government more directly.

Really important work by INQUEST:  Coles, D. and Shaw, H (2012) Learning from death in custody inquests: A new framework for action and accountability; INQUEST (2015) Deaths in Mental Health Detention: An Investigation Framework Fit for Purpose?; INQUEST (2015) Stolen Lives and Missed Opportunities: The Deaths of Young Adults and Children in Prison.

NB the shocking under-exploration of those who die while under supervision in the community:  Phillips, J,  Gelsthorpe, L, Padfield, N (2018)  Non-custodial deaths:  Missing, ignored or unimportant?   19 Criminology and Criminal Justice 160-178: explores why deaths of those under community supervision get so little attention compared with deaths in custody; Phillips, J.  and Roberts, R. (2019)  Deaths of people following release from prison Inquest: these deaths are rising, women are at significantly greater risk.  Dept of Health (2019) promised a national review:  no further information.

 

(c)   Impact on families

 

Biddle, L. (2003) ‘Public Hazards or Private Tragedies? An Exploratory Study of the Effects of Coroners’ Procedures on Those Bereaved by Suicide’, Social Science & Medicine, 56: 1033–1045

 

Australian papers encouraging ‘an ethic of care’: Tait, G., Carpenter, B., Quadrelli, C. and Barnes, M. (2016) ‘Decision-making in a Death Investigation: Emotion, Families and the Coroner’, Journal of Law and Medicine, 23 (3): 571–581; Carpenter, B., Tait, G., Stobbs, N., & Barnes, M. (2015) When coroners care too much: Therapeutic jurisprudence and suicide findings.  Journal of Judicial Administration, 24(3), pp. 172-183:  coroners can be too sensitive to needs of family?

(d)   Narrative conclusions

Probably more effective, but not without disadvantages: e.g. allow juries to participate better (Coles, D. and Shaw, H (2012) Learning from death in custody inquests: A new framework for action and accountability) And see Baker, D. (above).  May make suicide statistics less reliable:  Carroll, R., et al (2012) Impact of the growing use of narrative verdicts by coroners on geographic variations in suicide: Analysis of coroners’ inquest data’ 34 Journal of Public Health 447–453; Hill, C. and Cook, L. (2011) ‘Narrative Verdicts and Their Impact on Mortality Statistics in England and Wales’ 49 Health Statistics Quarterly 81–100:   frustration at difficulty of analysing narrative verdicts.

(e)   Impact on prison officers

Liebling, A. (1998) ‘Managing to Prevent Suicide: Are Staff at Risk Too?’ in Kamerman, J. (ed), Negotiating Responsibility in the Criminal Justice System, pp. 68–86:  Staff perceptions of their own accountability in inquest situations can leave them feeling “defensive, resentful, and exposed”. Officers have long memories, and perceived injustices or instances of unfair criticism in a public arena may reduce their behaviour to an obsession with procedures (p 81).

 

Barry C (2017) ‘You just get on with the job’: Prison officers’ experiences of deaths in custody in the Irish Prison Service. Prison Service Journal 230: 53–60.

 

(iv)             Learning the lessons

Dillon, H (2015) Raising Coronial Standards Of Performance: Lessons from Canada, Germany & England https://www.churchilltrust.com.au/media/fellows/Dillon_H_2014_ Best_practice_in_Australian_coroners_courts.pdf  : explores the demanding judicial and specialist skills/qualities required of coroners.

 

Sutherland, G. and others “What Happens to Coroners’ Recommendations for Improving Public Health and Safety? Organisational Responses Under a Mandatory Response Regime in Victoria, Australia” (2014) 14 BMC Public Health 732: focuses on the challenges of implementation.

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[1] Time frame has slipped by perhaps 6 months because of the pandemic.