The High Court has confirmed HMRC and other state agents' obligation to produce documents for coroners. Daniel Machover analyses the ruling.
The High Court has confirmed that Crown officers are obliged to comply with a coroner’s notice to produce documents even when they are also subject to a statutory duty of confidentiality.
The judgment in the case of HMRC v HM Senior Coroner for Liverpool not only alleviates any uncertainty surrounding coroners’ ability to compel all state agents to produce documents as part of a death investigation, but serves as a useful reminder to all coroners and practitioners of these very important new powers in Schedule 5 of the Coroners and Justice Act 2009 (‘CJA’). Also, witnesses at inquests will need to be aware of the criminal offences set out in Schedule 6 CJA, if they fail to comply with coroner’s notices or commit any misconduct when producing written or oral evidence,.
The legislative context
The CJA equipped coroners with more robust powers than under previous legislation. Previous legislation gave coroners limited powers to summon witnesses and no direct powers to secure disclosure from witnesses. Coroners had to make special applications to the High Court to issue any witness summons, which would eventually result in the witness disclosing specific documents. Schedule 5 of the CJA now enables coroners to summon witnesses and compel a person to give evidence or produce documents directly. Paragraph 3 of Schedule 5 also provides coroners with search and seizure powers, but these have not yet been brought into force. Coroners’ powers under the CJA are strengthened by highly significant offences relating to witnesses and evidence. The offences in Schedule 6 include failing to comply with a notice issued by a Coroner requiring evidence to be given or documents to be produced; altering evidence, preventing evidence from being given, destroying or concealing documents and giving false evidence; and misconduct in relation to producing evidence at an inquest.
This package of measures, allied with new disclosure duties, were key aspects of the overhaul of old coronial law (the Coroner’s Act 1998 and related rules). The recent changes came about following calls from campaigners that were taken up by the Joint Committee on Human Rights in its 2004 report into deaths in custody, which recommended coroners be given a statutory power to compel the production of documents. That power as provided for by section 32 and Schedule 5 CJA and its application to state officials was at the heart of the judicial review in HMRC v HM Senior Coroner for the City of Liverpool.
In some cases, coroners need to be given access to a deceased’s employment history when determining the cause of death. In two cases, the Liverpool Coroner was investigating whether deaths were related to occupational disease and so issued notices under Paragraph 1, Schedule 5 of the CJA requiring that the National Insurance Contributions and Employer Officer Records Retrieval Service of HMRC produce the work histories of the deceased men. HMRC claimed that it was unable to release the documents due to its officers’ duty to not disclose information which is held by the Revenue and Customs pursuant to section 18 of the Commissioners for Revenue and Customs Act 2005 (‘CRCA’). HMRC refused to disclose the work records without a free-standing Court Order and judicially reviewed the lawfulness of the Coroner’s notices.
The basis for the judicial review
HMRC contended that the CJA did not bind the Crown either expressly or by necessary implication and that the Coroner’s notices did not amount to the requisite court order that would enable HMRC to disclose documents held under the CRCA. HMRC stated that they could only disclose the documents identified in the Coroner’s notices if directed to do so by an order from the High Court. They sought an order quashing the coroner’s notices on the basis that they were issued without a legal basis, as not binding Crown officers.
The High Court’s judgment
As Schedule 5 to the CJA 2009 does not expressly bind the Crown, the Court had to decide whether the Crown was bound by necessary implication. The Court provided guidance on the correct approach for deciding this issue, stating that the true intention of the legislation should be identified in order to determine whether its purpose would be frustrated if the Crown was not bound. The Court rejected a submission that section 3 of the Human Rights Act 1998 and Article 2 of the European Convention on Human Rights demanded a different approach where a Convention right was involved, such that only in cases involving allegations of wrong doing by state agents would a coroner be able to issue notices binding Crown officers. Rather, the Court emphasised that the CJA was enacted with the intention of bolstering the powers of coroners so they could conduct an effective investigation into all deaths. Coroners’ Schedule 5 powers were not designed to vary depending on whether or not they involved a death in a public or private institution. The intention underlying the CJA, did not reveal any cogent reason why Schedule 5 would apply to non Crown officers, such as the police, the NHS and private prisons but not to Crown officers, such as the Ministry of Defence, HMRC or public sector prisons. The Court also found that it was implausible that Parliament would have drafted the CJA so that Crown agencies would be selectively bound on the basis of whether they regarded cooperating with coroners’ notices as “possible and politic”. Further, the protracted process of applying for High Court orders on all such occasions would place an unwarranted burden on the Court and result in considerable delays.
Significance of the decision
By dismissing HMRC’s judicial review claim and confirming that the Crown is bound by the CJA, the Court has ensured that Coroners’ powers to investigate deaths do not have limited reach when it comes to requiring Crown officers to produce documents relevant to their investigations. The result is not only that state agents of all kinds will be required to comply with such notice, but Crown officers as well as anyone else face criminal sanctions for non-compliance and for other misconduct included within Part 2 of Schedule 6 CJA.
Coroners are now better equipped than ever to ensure the relevant facts of all deaths are ‘fully, fairly and fearlessly investigated’.