Why coronial system is fundamentally
flawed
The recent investigation into the Teesside Coroner, who has a
backlog of more than 200 cases, has revived the call for coronial
system reform. Rosamund Rhodes Kemp, a partner at Bolt Burdon Kemp,
talks to Veronica Cowan about the problems affecting coroners and
the need to improve the system...
Successive
governments have ducked the issue of reforming the antiquated
coronial system, but the media inquest this month into the case of
Michael Sheffield, 75, the Teesside Coroner, who has a backlog of
more than 200 cases, may revive the pressures to move the draft
Coroner Reform Bill forward. The Home Office proposals, which
envisaged full-time independent coroners with legal qualifications
supported by medical expertise, was lost for want of parliamentary
time before the Election, but has been revived by the Department for
Constitutional Affairs (DCA).
Relatives and MPs in Mr Sheffield’s area have called for him to be
replaced, but removal of a coroner is not easy. A spokesman for the
DCA says that his case is under review. He said coroners would
normally retire at the age of 70, although they do not have to.
Coroners are appointed by local authorities, which cannot retire
them, although those holding office before 6 April 1978, who are
opted in to the local authority pension scheme, can be asked to
leave at 65 if they have fifteen years’ service. Otherwise, they can
only be removed by the Lord Chancellor, whose powers are governed by
the Coroners Act 1988, and the common law. In practice the Lord
Chancellor will only exercise his authority to remove a coroner
after having asked the Lord Chief Justice to nominate a judge to
conduct a judicial investigation, noted the DCA spokesman, who
confirmed that Mr Sheffield had been the subject of an inquiry in
2003.
So how effective is this system, and is there any other form of
redress? “The problem is that there is no coherent and modern
complaints system, and often the only way of complaining is to seek
judicial review of the decision,” observed Rosamund Rhodes Kemp, a
partner at Bolt Burdon Kemp. This means showing the coroner erred
in law, acted in a way that is procedurally improper or unfair, or
in a way that is unreasonable – namely that the decision was so
irrational that no reasonable coroner could have reached it. The
implementation of the Human Rights Act 1998 means domestic decisions
must also comply with the European Convention of Human Rights.
An inquest into a death must be held where there is reasonable cause
to suspect that a death was violent or unnatural; or it is sudden,
of unknown cause, or occurred in prison. “This is a compulsory
process into which relatives are dragged but there is scant funding
for legal representation for families and there is no uniform and
transparent procedure applying throughout the country”, remarked
Rhodes Kemp, who added: “We need a single department dealing with
coroners and a set of rules that meets the public’s expectations. A
proper complaints system might encourage civil servants to expedite
the reforms because they would see first hand the kinds of
complaints that are made against coroners and the very significant
deficiencies in the system.”
So what are those defects? Inconsistency, and a too wide-ranging
discretion are two: “Every coroners’ court is run differently.
Families often don’t get access to witness statements or other
documents before the inquest, and coroners can refuse to adjourn to
allow the family to prepare properly for the inquest. Some coroners
operate little fiefdoms, and there are many interpretations of the
rules . This means it can be difficult to tell families what to
expect. Coroners have too much discretion,” she asserts. On top of
that, she added, the verdicts are too restrictive and archaic and
many people don’t understand them.
On the subject of verdicts, The Times (August 12) reported
Professor Sir John Baker QC of Cambridge University, and the world’s
leading expert in English legal history, as having criticised David
Morris, the coroner, for returning a narrative verdict - a statement
of fact rather than a finding - on his wife, Lady Baker, who fell to
her death after slipping away unnoticed from a ward, and within 90
minutes of asking members of staff to direct her to the nearest tall
building so she could kill herself. Sir John is reported to have
said that Mr. Morris “had not addressed the shortcomings of a system
that had allowed his distressed wife to die”.
The problems with the coronial system are fundamental, according to
Rhodes Kemp, and tinkering with it won’t address them. There are no
checks and balances; and no real accountability, such as would
engender public confidence in the process. The vagaries in the
system go beyond the process to the premises in which some coroners
are forced to operate. “The places in which inquests are conducted
are often poor with no facilities and difficult access,” remarked
Rhodes Kemp, who mentioned one coroner conducting inquests in his
sitting room.
Another anomaly is the appointment of deputies. Under section 6 of
the Coroners Act 1988 a coroner is required to appoint a suitably
qualified person to act as his deputy during his absence, or in the
event of his inability to act in any case. Rhodes-Kemp commented
that some coroners appoint a deputy from their own law firm, a
practice criticised by Dame Janet Smith in the Shipman report.
So what kind of complaints system would be appropriate? In Rhode
Kemp’s view, the Parliamentary Ombudsman would be a good person to
handle these complaints as does the Health Service Ombudsman deal
with complaints about poor administration in the NHS. However, care
would be needed to ensure that this related to complaints about the
process and that there was no interference with the judicial aspects
of coroner’s decision-making.
As to whether anything will happen quickly, coroners and families
would not be well-advised to hold their breath.
(16/08/05)
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Legislative annotations in other services:-
Human Rights Act 1998; Coroners Act 1988 s6
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