Judicial Review and Courts Bill

Lord Beith Excerpts

Committee stage
Thursday 24th February 2022 Lords Chamber

We think that these measures provide the opportunity to improve and enhance the magistracy and its leadership structures, which will now more closely align with the Crown Court. There will still be local training, but, where appropriate, we may have national training as well. But magistrates will be involved in the development of all these areas—

[Lord Beith (LD)]

I am grateful to the Minister. Does he think that he ought to consider the impact that would flow from removing local justice areas, when we already find that taking cases to the furthest point within a local justice area—because there is a particularly well-equipped courtroom there, say—means that magistrates are finding that most of the cases they will be asked to sit on are taking place 50 or 60 miles away? It is extremely difficult to recruit magistrates who are prepared to accept that distance, and it does not do much for local justice.

[Lord Wolfson of Tredegar (Con)]

Of course I accept that point as a matter of principle. That is why consultation is really at the heart of this. There has to be a balance. For example, there could be a case where you have a number of very disabled witnesses and a particular courthouse is more accessible for them than another one. There could be cases, as in the pandemic, for example, where some courthouses have been more easily adapted than others. But, as I hope I have made clear, we will make sure that there will be full consultation on this. But we want to build in the legislative flexibility to allow that to take place in cases where it is needed. If I may say—

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[Lord Thomas of Gresford (LD)]

My Lords, the office of the coroner has evolved over 1,000 years since William the Conqueror introduced it. There were too many dead Normans lying about attacked by Saxon villains. The coroner inflicted a fine called murdrum on a community where a dead body was found. The deceased was presumed to be Norman under the presumption of Normanry, unless the community, by the presentment of Englishry, could avoid the fine by showing that the deceased was English, in which case it did not matter.

The problem is that traces of these ancient procedures continue to dog the present and to provide cover to government not to recognise the realities of coroners’ proceedings today. Coroners today will tell you that their duties are confined to determining who the deceased was and how, when and where they came by their death. But it is not as simple as that. The thread that runs through this chapter on coroners in this Bill is the lack of concern for the interests of the bereaved, particularly the involvement of the family. The Commons Justice Committee reported last year, and Section 3 of its report is entitled:

“Putting bereaved people at the heart of the Coroner Service”.


This Bill does not even begin to do that.

The evidence given at an inquest and the decision of the coroner or a coroner’s jury has many consequences. When the family of the deceased arrive at the coroners’ court, they will frequently find that skilled advocates are representing a hospital, the police if there has been a death in custody, the insurers of a potential defendant in a road accident or insurers where there may be defects in a stadium, a block of flats or other structure. The evidence given on oath before the coroner may be crucial in determining an allegation of assault or negligence or, where the suggestion is suicide, whether life insurance will be paid out to the dependants. A finding in a coroners’ court frequently determines whether the dependants of the deceased can settle a claim for compensation quickly and without stress or whether they have to go through the agony of a court case.

I turn to Amendment 40. Currently, as the noble Baroness, Lady Chakrabarti, said, the coroner can discontinue an inquest only after the results of a post-mortem have been delivered to him unless he suspects a sudden and violent death or a death in the custody of an organ of the state, such as the police. Clause 38 of this Bill now extends his discretion to discontinue by the use of wide words: if the

“cause of death becomes clear”

before inquest. Under this Bill, all the family receive is a statement of reasons. The purpose of this amendment is to ensure that, before the coroner makes his decision to discontinue, he has made all proper inquiries, and ensured that there are no ongoing investigations into the death, such as a hospital inquiry, and crucially that the family have been given the opportunity to make representations and actually consent to the discontinuance.

I think the Explanatory Notes are disingenuous when they suggest that an inquest adds to the distress of the bereaved family. Certainly, there is distress, but a decision to discontinue, taken above their heads and without their participation and consent, may very well cause much greater distress.

I come to Amendment 41. We are all aware of the struggles of many families to obtain an inquest through the courts by way of the discretionary remedy of judicial review. Amendment 41 provides for rules to establish an appeals process for those who disagree with the decision to discontinue. To succeed in the Bill as currently drafted, they would have to establish that the cause of death is not clear. What does that mean? What may seem clear to the coroner may not be clear to the family at all. If Amendment 40 is carried, the need for appeal would be considerably lessened since all interested persons known to the coroner would have been notified of his intention to discontinue prior to the inquest and would have consented to it. Appeals could then be brought only by interested persons who had been overlooked. That is possible but very rare.

I turn to Clause 39 and Amendment 42, where the theme continues. The decision of a coroner to determine that a hearing is unnecessary and may be determined in writing should also involve the consent of the bereaved: put the bereaved at the heart of the coroners service. Proposed new subsection (2)(a), to be inserted by Clause 39(2), requires the coroner to invite representations from known interested parties before he makes his decision, while (2)(b) deals with situations where no representations have been made and (2)(c) deals with situations where there is a disagreement between interested parties. That is what the Bill talks about, but nothing is contained in the clause about the position where all the interested parties oppose the coroner’s notification of his intent to determine the issues in writing on the papers, much less a requirement that they all consent. Amendment 42 would deal with those omissions.

Amendment 43 to Clause 40 again seeks to involve the family in the decision to hold remote inquests. First, they should consent. Secondly, the coroner should be assured that such a hearing is in the interests of justice, in particular that the issues are not too complex and interested persons are able to use to technology involved. Thirdly, the coroner should give his reasons in writing. However, a remote hearing has this disadvantage: the family are not open to the support services that would be available at a live hearing. The Commons Justice Committee recommended at paragraph 66 of its report that

“local volunteers in the Coroners’ Courts Support Service”

use their skills to assist the bereaved and commented that that service is not centrally funded, nor available everywhere.

Amendments 44 and 45 emphasise the public interest in inquests. If held remotely, they should not be held simply by telephone and absent the public. The rules require that inquests be held in public, except for reasons of national security.

Amendment 50, after Clause 42, is an amendment in my name to delete Rule 27 of the 2013 rules, which states:

“No person may address the coroner or the jury as to the facts of who the deceased was and how, when and where the deceased came by his or her death.”


I have been present at a number of inquests and have always found this to be quite extraordinary. Deborah Coles, the director of Inquest, told the Justice Committee about her experience of a culture of “defensiveness” on the part of public bodies:

“Very often, those lawyers are working as a team to try to reduce the scope of the inquest, to try to limit the number of witnesses or argue against questions being left to a jury, if indeed there is one, or argue against a coroner making a prevention of future death report … There is much more concern for reputation management, rather than a meaningful search for the truth.”


In my experience, it is much the same with employers who seek to limit their liabilities. “Well,” you might say, “so much the better if they cannot address the coroner.” However, they often make submissions on facts dressed up as submissions on process. Where both sides are represented, the coroner should be helped by submissions made by both sides to clarify issues of fact and make points about the evidence that has been heard; those points may be crucial to the issue of liability. Whether both sides are represented and there is equality of arms is a matter that we shall come to in the debate on the next group.

[Lord Beith (LD)]

My Lords, I agree with many of the points my noble friend has made. He made a particularly forceful point about addressing the jury at an inquest. It seems an absurdity that the law is in that state; I will come back to the encrusted historical nature of the law on coroners in a second.

I will add to what my noble friend said, although it might seem a slightly conflicting point. It is simply that the circumstances can be very different in so many of these cases. From my experience of inquests and dealing with families going to inquests, I have often come across the circumstances so vividly described by the noble Baroness, Lady Chakrabarti, of those who do have any equality of arms and are dealing with a major public sector body or a private organisation with great resources. There are other families for whom an inquest is just another liability they do not want at a time of maximum grief. If there are no grounds for holding an inquest or drawing them into that procedure, we do not want to make life more difficult for them at a time of very real grief.

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The problem is that, unless the coroner undertakes a full investigation or an investigation is suspended, those deaths can be registered only if an informant qualified to do so by legislation provides the registrar with information relating to the deceased. The qualified informants are primarily family members. That is the problem. The death can be registered only after the coroner has considered whether a full investigation should be carried out or discontinued, by which time a funeral may already have taken place and family members may no longer be interested. As I said, I am not blaming anybody; it is just human nature: the funeral has taken place so they regard the matter as concluded.

[Lord Beith (LD)]

It is not just human nature; it is the practical difficulty of registering deaths and making appointments in coroners’ offices, because registrars’ and coroners’ offices have very limited not just opening hours but opening days. This has been particularly marked during the pandemic.

[Lord Wolfson of Tredegar (Con)]

I understand that, certainly from my postbag. I should say that coroners work extremely hard, but the pandemic has caused a real problem. I do not want to go back to the online discussion, but we hope that enabling people to do that sort of thing online will help. I certainly take the noble Lord’s point.

To solve this, the amendments in my name will enable a coroner to provide the registrar with the information required for the registration to take place on the basis of that information. I should make it clear that we are not introducing new duties on coroners or removing the duty on qualified informants to provide information. It is intended to be used in those exceptional circumstances where qualified informants are unable or unwilling—often for good reason, as the noble Lord, Lord Beith, said—to discharge their duties. The effect will therefore be that the death will not go unregistered. We think that about 200 of these cases happen a year. They affect the accuracy of records, but there is also the potential for fraudulent use of the identity of an unregistered deceased person, since the identity has not been closed by the death being registered. It is not quite Day of the Jackal territory, but there is potential for fraud there. We want to close that.

For those reasons, I invite noble Lords not to press their amendments and I will move mine when the time comes.