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Disclosure of information and the Coroners and Justice Act 2009

Data inspection iStock 000008204804XSmall 146x219Polly Dyer reviews the changes introduced by the Coroners and Justice Act 2009 and looks at the practical considerations.

The Coroners and Justice Act 2009 (CJA) came into force on 25 July 2013. The following secondary legislation came into force on the same date:  

  • The Coroners (Inquests) Rules 2013;
  • The Coroners (Investigations) Regulations 2013;
  • The Coroners Allowances, Fees and Expenses Regulations 2013.

From this date all investigations, including deaths which were already being investigated by a coroner (counting those which had reached the inquest stage), are dealt with under the new regime. However, any decision taken by a coroner before the new arrangements came into force remains valid. This article examines the changes to the disclosure regime. Its drafting has been assisted by the fact that Peter Thornton QC, the Chief Coroner, attended QEB Hollis Whiteman earlier this year to give a talk on the subject of the changes.

In one of the most welcome developments, part 3 of the Coroners Rules 2013 should radically transform pre-inquest disclosure. Under these new provisions a coroner must normally disclose relevant documents to an interested person, on request, at any stage of the investigation process. Previously, there was no legislative means to compel advance disclosure; it was simply left to the coroner’s discretion. It is now effectively accepted that advance disclosure is necessary to ensure a sufficient inquiry, but problems may continue to arise and much does depend on the specific coroner.

The documents that should now be disclosed (as set out in rule 13 of the Coroners Rules) are:

  • any post-mortem examination report;
  • any other report provided to the coroner;
  • any recording of the inquest;
  • any other document which the coroner considers relevant.

The duty of disclosure as set out above means that all relevant evidence should be disclosed to an interested person in advance of, or during, an inquest (regardless of whether it is an Article 2 inquest). However, relevance is ultimately a question for the coroner.

What is held to be relevant will primarily depend on the scope of the inquest; as such, tactically a representative of an interested party will wish to try to ensure that they shape the scope of the inquest as they desire. Practically this can be done by making written and/or oral submissions to the coroner on scope, potentially providing the coroner with a list of issues or questions he/she may wish to consider. The scope of an inquest will invariably be wider if Article 2 of the European Convention on Human Rights is held to be engaged as the question of “how” someone died is broadened to include ascertaining in what circumstances the deceased came by his or her death (section 5(2); Middleton (R (Middleton) v HM Coroner for Western Somerset [2004] 2 AC 182). It follows that more documentation is likely to be disclosed. Additionally, as held in R(D) v Secretary of State [2006] EWCA Civ 143, for an inquiry to comply with Article 2, the representatives (in this case of the family) must be given reasonable access to all relevant evidence in advance.

Material will also be relevant if it addresses the issue of what has changed as a result of the death (if anything) as, whether or not it is an Article 2 inquest, a coroner has to consider whether to make a report to prevent future deaths (Schedule 5, paragraph 7).

“Document” is defined in rule 2 as “any medium in which information of any description is recorded or stored”. This includes photographs and CCTV footage. Disclosure should be by electronic means wherever possible. If it is not possible to send documents to an interested person, then the coroner should allow such persons to inspect them. Documents may be redacted where appropriate (rule 14).

A coroner may refuse to provide a document or a copy where (as set out in rule 15):

  • there is a statutory or legal prohibition on disclosure (for example police reports);
  • the consent of any author or copyright owner cannot reasonably be obtained;
  • the request is unreasonable;
  • the document relates to contemplated or commenced criminal proceedings;
  • the coroner considers the document irrelevant.

This last restriction can cause difficulties, especially if only part of a document is disclosed.

One basis on which disclosure of some or all of a document could be refused is where the information is covered by public interest immunity (PII) (Schedule 5, paragraph 2(2)). The starting point is whether the evidence is relevant. At an inquest this is broader than in civil proceedings and includes learning lessons and assuaging public anxiety. For a PII application to succeed there must be a risk of serious harm to an important public interest. The court must then disclose the information unless the public interest in non-disclosure outweighs the public interest in the open administration of justice. The resolution of the balancing exercise, and the weight to be given to the public interest in concealment, are matters for the coroner. In the first instance, disclosure should be made to the coroner alone, who should examine the documents before making a decision. There is a great deal of authority emphasising the fundamental importance of open justice and disclosure at inquests. PII is the last resort and there may be a practical solution to enable full and effective investigations, even whilst public interest requires the withholding of some material.

A coroner must disclose documents as soon as reasonably practicable (rule 13(1)). This allows coroners some leeway if an interested person is likely to make a number of requests in succession. A coroner would be entitled to wait, but not unreasonably, until a bundle of documents could be disclosed together.

Disclosure is usually addressed at pre-inquest reviews (if not before) and/or in written submissions. Rule 6 of the Coroners Rules 2013 now formally recognises that pre-inquest review hearings (PIRs) are often held before the main inquest hearing. Where possible, coroners should set out an agenda in advance of the hearing for all interested persons and, where appropriate, invite written submissions to be considered at the hearing. If an agenda is not provided, legal representatives should write to the coroner’s officer to request one (referring to Peter Thornton QC’s expectation for an agenda).

The CJA also expands the list of interested persons, capturing, for example, the role of the Independent Police Complaints Commission in conducting and managing some investigations. In addition to the specific list of those that fall into the category of “interested person” under section 47 of the CJA, there is power for the coroner to determine that any other person is an interested person.

In drafting submissions regarding disclosure, a representative may wish to refer to the rules and the Chief Coroner’s Guidance, and mention that non-disclosure may mean a longer inquest since it is likely to increase lines of inquiry and lead to adjournments. A representative may find him or herself making repeated disclosure requests and unfortunately not receiving fast responses. In such circumstances, one can only persevere. It would also be advisable to check with other interested parties what documentation they have (to ensure that all parties are working from the same material).

A good place to start when thinking about the material one wishes to obtain is any initial inquiry e.g. police report, MOD service inquiry. Often internal, PPO or IPCC inquiries will be conducted in tandem with any investigation carried out on behalf of the coroner. There is a presumption that such inquiry reports should be disclosed to the coroner and to interested persons. Traditionally a police report was regarded as confidential but there is now a clear presumption in favour of disclosing it. There may be some cases where the report is not relevant and there will be specific claims of confidentiality applying to parts of it, but there can be no justification for a clear-cut rule against disclosure.

Such reports can form the basis of the witness list and are likely to refer to other documentation, which can be requested (another party should be entitled to the majority of the documents viewed and/or generated). If a representative thinks that other witnesses/material/enquiries are necessary it is open to them to suggest them to the coroner.  

A coroner will often depend on the police or prison service to conduct his or her inquiries and disclose to him/her relevant material relating to the death. They cannot disclose evidence they have not obtained so a representative of an interested person will wish to think about the material the coroner does not appear to have. The police have a duty to hand over all the material that touches upon a death to the coroner. The Macpherson Report recommended that there should be advance disclosure of evidence and documents to parties who have leave to appear at an inquest. The Home Office subsequently produced guidance to chief constables introducing a system of pre-inquest disclosure as a normal course of action.

A public authority which refuses to comply with a disclosure request could be judicially reviewed for an irrational decision. A coroner who refuses to make a request for disclosure and thereby fails to investigate fully may be liable to judicial review. Practitioners will want to ensure that coroners use their full powers under the CJA to compel those with relevant materials to provide for disclosure. Additionally, it should not be forgotten that an interested person can produce their own witnesses and ask that their evidence be read or called.

The CJA gives a coroner power to summon witnesses and to compel the production of evidence by way of written notice. The coroner does not have the power to require anything that a person could not be required to provide to a civil court. The coroner also does not have the power to require evidence to be provided if this would be incompatible with EU law. The rules of law in relation to public interest immunity apply equally in relation to investigations or inquests. The failure to comply with a notice requiring evidence to be given or produced, altering evidence, preventing evidence from being given, destroying or concealing documents, and giving false evidence are criminal offences. The CJA does not alter the powers of a coroner to summon witnesses, require evidence to be given or punish for contempt of court, although coroners have been advised not be too hasty to exercise these powers.

Interested persons can request disclosure before, during or after an inquest. If not involved in the inquest itself, it should be possible for an organisation/person to apply to be designated an interested person after an inquest and seek disclosure of material. Coroners must retain documents in connection with an investigation or post-mortem for 15 years or as directed by the Chief Coroner. Hearings must also be recorded and interested parties may be able to obtain a recording. A coroner is expected to limit its use, and disclosure may not always be appropriate/parts may be redacted. Such disclosure is also likely to be subject to costs.

Peter Thornton QC has been keen to stress that the family of the deceased should be at the heart of the inquest. Although an inquest is not going to provide closure, a family at the very least should feel that nothing is being hidden from them and that there is an open and transparent forum in which a lot of their questions can be answered.

Polly Dyer is a barrister at QEB Hollis Whiteman.

 

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