Looking for change

The role of the coroner has remained the same since the 12th century, and after the Marchioness inquest most would agree it's time for a change. Sallie Booth reports

The role of the coroner was initially defined in the 12th century and has barely altered since. Now, however, a far-reaching review is under way to assess what the role of the coroner and of the inquest should be.

Nowadays, the significance of the coroner and the inquest cannot be overstated, especially in relation to the suddenly bereaved.

In 2001 in England and Wales, 202,350 deaths were reported to coroners who arranged 121,100 postmortems and held 25,800 inquests. This means that almost one quarter of deaths are subject to postmortems and 5 per cent of all deaths result in inquests.

Coroners are carefully focused on investigation of the facts rather than apportioning blame for the death. The coroner only ascertains who died, where, when and how, and families often find it difficult to understand why a coroner's verdict cannot be used as evidence in, for example, a claim for compensation following a road traffic accident if the death has been deemed to be due to a driver's speeding.

Consultation paper requesting views

The Government-established Review Committee examining the peculiar position of the coroner has issued a consultation paper and requested input from interested parties by 22 November, with a view to report to the Government in March 2003.

Chairman of the committee Tom Luce has taken great care to include lawyers and their clients in the review process. This first full review of the role of coroners should herald a fresh approach to inquests that could, at last, be designed with the bereaved in mind and with a view to expedite or clarify the legal processes following a sudden death.

The Review Committee must take on board the fact that society and the judicial system have changed and the position of coroners and their inquests must be shaped by more modern issues. We now have human rights legislation; we have a need for greater involvement in the bereavement process; and we have a society whose access to and expectation for information has grown.

The Marchioness inquest

The impetus for this review came, in a great part, from the experiences of families of victims of the Marchioness disaster.

In granting the reopening of the Marchioness inquest, the Court of Appeal, with Sir Thomas Bingham, Lord Justice Farquharson and Lord Justice Simon Brown, described the unusually all-encompassing judicial role of the coroner as one that “gathers the relevant evidence… decides which witnesses should be called and which statements should be read… examines the witnesses… his role is unlike that of a judge as we know it… his role is difficult and sensitive”. This demonstrates just how powerful a coroner is, but at times, families have been let down by the system and by some coroners.

The aftermath of the Marchioness disaster demonstrated that there are often a number of interrelated investigations that run separately but at the same time, and which all affect families.

The bereaved families found the lack of coordination between support services and the coroner's court very stressful. They also found the delays caused by the many investigations to be very upsetting.

When Westminster coroner Dr Paul Knapman refused to reopen the Marchioness inquest, he argued that the civil actions had produced as much investigation into the circumstances of the disaster as anyone could require. But he was not taking into account the concerns of the families and in particular their need to know exactly what had happened and they lobbied for the reopening of the inquest. Dr Knapman later told a reporter from the Daily Mail that he felt that some families bereaved by the Marchioness disaster were “unhinged”. In May 1991, Dr Knapman also described the bereaved as “a number of mentally unwell relatives and survivors who mutually support each other”.

It became obvious that the families should not only challenge his refusal to re-open the inquest, but also question whether Dr Knapman should act as the coroner if it were to be resumed.

As the coroner is in such a discrete jurisdiction the only challenge to his decision is by way of judicial review. The subsequent judicial review proceedings showed that the families' criticisms went much deeper than his refusal to reopen the inquest and his comments to the media. They were greatly distressed when they discovered that Dr Knapman had authorised the removal of the hands of many Marchioness victims for identification purposes. Not only were the families not consulted, they did not discover this fact until several years after the event, many having been refused the opportunity to view their loved ones' bodies. Some of the hands were not reunited with the bodies but were incinerated, again without consultation with the families.

Rosie Winterton MP, as parliamentary secretary to the Lord Chancellor's Department, later explained in Parliament the Lord Chancellor's powers in relation to coroners, which are now being examined within the current review. These powers, under Section 3(4) of the Coroners Act 1988, enable the Lord Chancellor to remove a coroner for misbehaviour or inability in the course of his duties. He is also able to suspend or admonish. In the case of Dr Knapman, the inquest was reopened under coroner Dr John Burton and the Lord Chancellor admonished Dr Knapman.

On 23 March 2001, at the publication of Lord Justice Clarke's public inquiry into the identification of victims following major transport accidents, John Prescott MP said in Parliament that there was to be “a fundamental review of the coroner system”. And in April that year, Paul Boateng MP said: “No change is simply not an option if public confidence is to be assured.”

It is only now that it is being properly examined that the peculiar nature of the coroners court is apparent: the Government has no power to centrally manage coroners courts so there is often inconsistency in approach and method; coroners are not specially trained and are rarely appraised once in position; and families do not have access to legal aid to cover representation at an inquest. In fact, Patrick Allen, president of the Association of Personal Injury Lawyers (Apil), says: “Coroners have long been considered a law unto themselves.”

This review is the opportunity to widen the scope of the inquest and properly consider how to make the process more useful and helpful to families.

The committee's consultation paper suggests a number of issues to be addressed: the need for prompt inquests after death; better notification of inquests to all family members; explanation of what will happen; decent premises and disabled access, separate from other participants if upsetting; and help with finding bereavement counselling and other expert help.

However, this review represents the first opportunity for a thorough reconsideration of the whole process and some parties are suggesting much more radical changes.

Obviously the issues of training and appraisal must be addressed. But perhaps the inquest court should now have the power to settle questions of liability, including possible damages to save the families having to go through a further legal process. This may turn the coroner into a district judge.

Should the inquests' inquisitorial approach be replaced with an adversarial one? Some are also calling for the statutory coding of a coroner's powers; a clarification of the law relating to when jury inquests are held; and legal aid for representation at inquests.

Because every aspect of the coroner's role and the inquest is now under the microscope, there is great optimism that the review will simplify and clarify. And the committee has a wide remit, taking into account not only the coroner and the inquest, but also the relationship and support offered by a number of services and organisations which share a common concern but have disparate methods.

One outcome is certain: the reform of the coroner's role and that of the inquest will be another testament to the tenacity and bravery of the families who lost loved ones in the Marchioness disaster and who fought to ensure that others do not suffer the delay and confusion that followed that tragedy.

Sallie Booth is a partner at Irwin Mitchell