Inquest proceedings can be difficult and distressing for families as they have to relive the circumstances surrounding their loved one’s death. As civil litigators representing clients at inquests, it is essential we have the tools to help our clients navigate these proceedings in the best way possible. 

Trainee solicitor Gemma Laing summarises the key points for civil litigators to understand about inquests and top tips when representing clients during these proceedings.

 

What is an inquest?

The coroner leads inquests, and they happen regardless of whether the family or families of the deceased have legal representation or funding.

Under section 1 of the Coroners and Justice Act 2009 (CJA 2009), a coroner has a duty to investigate a person’s death if the deceased’s body is within the coroner’s area and if they have reason to suspect that:

  • the deceased died a violent or unnatural death
  • the cause of death is unknown, or
  • the deceased died while in custody or otherwise in state detention.

Where this duty arises, an inquest must be held.

An inquest must ascertain who, how, when and where the deceased died.

In some inquests, this scope can be widened to include broader circumstances leading to the death (called Article 2 inquests). Article 2 of the European Convention on Human Rights (ECHR) imposes a positive duty to protect life. Where there has been an arguable breach of the state’s substantive obligations to protect the right to life or safeguard a specific person or person’s life, Article 2 will be engaged.

Inquests are different to civil court proceedings because the coroner has no power to blame the death on anyone directly. The coroner only has the power to ascertain the cause of death.

 

What key things do civil litigators need to understand about the inquest process?

Interested persons

If you, as a civil litigator, are involved in the inquest process, it will likely be because you are representing an interested party family member of the deceased. An interested party is defined under section 47(2) of the Coroners and Justice Act 2009 and includes family members.

Interested persons (and their legal representatives) may engage with the inquest process. They can request information and disclosures relevant to the inquest process and ask witnesses questions.

The coroner cannot force persons or entities to be interested persons to an inquest; they only have the power to invite relevant parties to this position.

Juries

Juries are only required at an inquest in certain circumstances.

Under section 7(2) of the Coroners and Justice Act 2009, an inquest must be held with a jury where:

  1. The deceased died while in custody/state detention (and where the death was violent, unnatural or unknown), or
  2. The death resulted from the act or omission of a police officer, or
  3. The death was caused by notifiable accident, poisoning or disease, which includes accidents in the workplace where a health and safety executive has been involved. This is of particular relevance to us at Stewarts.

It is at the coroner’s discretion whether to have a jury, and they can ask for submissions from interested persons as to whether a jury is required.

Even if the inquest involves one of the events under points 1 to 3 above, the coroner may decide a jury is not required. If, for example, there has been an independent investigation and criminal trial before the inquest, a coroner may decide it is not necessary to sit with a jury.

Experts

A coroner has wide discretion to decide what evidence to rely upon and which experts to call. This discretion must be exercised reasonably and fairly. It is vital to understand that interested persons and their legal representatives are not able to appoint their own experts.

The scope and nature of expert evidence will normally be considered at a pre-inquest review hearing.

Counsel to the inquest

In judge-led inquests or those where a judge has been appointed as an assistant coroner, it is usual for a counsel to the inquest (CTI) to be appointed to help advise the coroner. These are usually inquests with particular features such as complexity, multiple interested persons with legal representation and disputed factual issues.

Apart from making legal decisions and conclusions, a CTI can assist with advice on all legal aspects of an inquest, practical preparations and any aspect of adducing evidence.

 

What is the test for causation, and how is it used in the coronial courts?

The test for causation is different in the coronial courts than in the civil courts. Instead of the “but for” test, the test for causation is “whether on the balance of probabilities, the event or conduct more than minimally, negligibly or trivially contributed to the death”.

R (Tainton) v HM Coroner for Preston and West Lancashire [2016] EWHC 1396(Admin)

This case clarified that “the conduct or event” must make an “actual and material” contribution to the deceased’s death.

In the medical context, negligence is not enough. The conduct must amount to neglect, which means gross failure to provide basic medical attention to someone in a dependent position.

This unique test for causation means that a coroner could reach an “unlawful killing” verdict in the coronial court where a criminal court has already acquitted an individual for manslaughter relating to the same incident.

 

What conclusions can a coroner come to?

There are two types of conclusions a coroner can come to:

  1. Short-form conclusions

These consist of only one or two words. A list of the available short-form conclusions is set out below. These are defined in the Chief Coroner’s Guidance.

  • Accident/misadventure
  • Alcohol/drug-related
  • Industrial disease
  • Lawful/unlawful killing
  • Road traffic collision
  • Stillbirth
  • Suicide
  • Natural causes
  • Open
  1. Narrative conclusions

These are up to a few paragraphs in length and seek to explain the circumstances of death in a descriptive way.

Under section 27 of the Chief Coroner’s Guidance, narrative conclusions should only be used where a short-form conclusion is insufficient. They can be used in Article 2 or non-Article 2 inquests.

Representatives for families will likely want a narrative conclusion as it allows the coroner to provide more detail about the cause of death.

 

What is a prevention of future death (PFD) report, and what can it do?

The coroner issues “prevention of future death” (PFD) reports to raise concerns about the potential for future deaths with the aim of preventing or reducing the risk of such deaths occurring. These reports are key to what families of the deceased can get out of the inquest process as they provide hope that change may come about as a result of their loved one’s death.

Under Regulation 28 of the Coroners (Investigations) Regulations 2013, if the coroner feels that:

  • the death could have been prevented
  • the investigation gives rise to a concern that future deaths will occur, and
  • action should be taken to reduce the risk of death

they are under a duty to make a recommendation for change in the form of a PFD report.

The coroner will consider two questions:

  1. What changes have been made since the death?
  2. What plans are there to implement changes?

The PFD report will be sent to the appropriate authority (for example, the NHS trust where the deceased died under their care) to review the issues. This authority then has 56 days to respond in writing under the Coroners (Investigations) Regulations 2013.

However, despite the coroner being under a duty to prepare such reports in certain circumstances, PFD reports are not enforceable on the target authority. This is important for families to understand.

To find out whether a particular authority has been sent a PFD report in the past, you can search the UK PFD report database here.

 

Key advice for civil litigators to make the most out of inquest proceedings

  1. Use the inquest as an evidence-gathering exercise

Inquests often run alongside civil proceedings. It is, therefore, important to consider what you and the client want to achieve at the inquest so that you can make the most out of the proceedings. Ask yourself questions such as:

  • Are the potential coroner’s conclusions going to be enough?
  • Are we looking for specific findings of fact?
  • Are we looking for specific admissions or concessions?
  • What particular evidence and issues do we want to come out in open court that will assist the civil claim?

In some ways, the inquest is a dress rehearsal for the civil trial. Although the coroner can’t appoint blame, the narrative in their conclusion will provide useful information for the civil claim. The inquest is an excellent way to gather as much evidence as possible ahead of the civil claim.

  1. Use the inquest as an opportunity to put pressure on the defendants

Inquests can also put pressure on defendants in the civil claim, and you can use this dynamic to your advantage. Journalists are allowed to sit in and observe the inquest proceedings, so, particularly in high-profile inquests, the press coverage of the inquest may be a key component in putting pressure on the defendants.

  1. Be valuable to your client by helping them successfully navigate these proceedings

Inquest proceedings can be difficult and distressing for families because they have to relive what happened to their loved ones. Sometimes, they find out information, such as post-mortem details, for the first time. Helping your client navigate these proceedings is a good way to build rapport and establish trust.

It is important to form a good relationship with the coroner’s clerk as they can help with the practical arrangements, including where the family sit and when and where they can go if they want to leave the court, for example, during post-mortem evidence if they don’t want to hear it. Ensuring these practical arrangements are well organised will help your client feel more at ease.

It is usual for the coroner to invite families to provide pen portraits. This is a statement about the loss of the deceased and the impact on them, so it is important you guide your client through this process. Inquests are much more focused on the families than civil proceedings. Pen portraits enable families to say more than they would be able to in a civil claim, including adding videos and photos of their loved one to be shown to the court. You want to ensure your client makes the most of this process, as they won’t get this opportunity during the civil claim.

 

Where can I find out more information?

For more information relating to inquests, please see below links to laws and regulations in this area:

Key Contacts

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