|Chief Coroner - Peter Thornton QC|
On 17th September, the new Chief Coroner for England and Wales (Judge Peter Thornton QC) finally took office. As the government cogitated about implementation of the 2009 Act, he was appointed - "unappointed" - and then appointed again!
The Coroners and Justice Act 2009 ('the 2009 Act') contained the almost inevitable provision for "commencement orders" which leave Ministers with the power to implement provisions at times of their choosing - e.g. when necessary resources are in place. The "flip side" of such orders is that Ministers can avoid implementation and this has happened with several aspects of Part 1 of the 2009 Act which was put in place to bring about some reform of the system of Coroners and Certification of Death. Coroners Courts are a long-standing system of locally-based courts and they have proved resistant to reform despite serious criticisms being raised from time-to-time. The change of government in 2010 resulted in yet more delay to bringing in the much needed reforms already provided for in the 2009 Act.
Reports leading to the 2009 Act:
Part 1 of the 2009 Act came about following severe criticism of the Coroner and Death certification systems system in reports such as the Fundamental Review of Death Certification and Investigation (2003) and the Shipman Inquiry - Third Report (2003). A draft Coroners Bill was published in 2006 and received over 150 responses with a summary published in February 2007. The Bill underwent pre-legislative scrutiny with a further report published in November 2006. There were several other consultations relating to matters such as death certification. The full list is set out in the explanatory notes to the 2009 Act.
Only limited implementation so far:
On 17th September, the new Chief Coroner for England and Wales (Judge Peter Thornton QC) took office.
On 24th September 2012, under Commencement Order No.10, provisions come into force to allow an investigation in Scotland into deaths of service personnel when they are killed during service abroad. On this see Community Justice Portal.
Nevertheless, much remains to be done. Of the 51 sections in Part 1 of the 2009 Act, only section 35 (Chief Coroner) and section 12 and 50 (Transfer to Scotland) have so far been brought into force. The government does not intend to implement certain of the provisions - section 25 Coroner for Treasure, section 38 Medical Adviser to Chief Coroner, section 39 Inspection of the coroner system and section 40 appeals.
It seems particularly poor that the system of appeals which was set out in section 40 of the 2009 Act will not come about. The government announced this in January 2012 and the Public Bodies Act 2011 section 33 repealed the provisions in the 2009 Act relating to appeals (including section 40). This still means that the only way of challenging a Coroner's decision remains judicial review in the High Court or by the process of asking the Attorney-General to go to the High Court to ask for a new inquest (Coroners Act 1988 section 13). Parliament July 2012 - Briefing Note - Challenging Coroner's Decisions
The removal of the simpler and cheaper system of appeals beggars belief. Straightforward and cost-effective appeal machinery should always be available from decisions of inferior courts (such as Magistrates, County Courts and Coroners).
Legal aid is a further problematic area.
Legal Aid is not generally available for representation at inquests because, the government argues, an inquest is a fact-finding process - (see para. 21 of the Guide). Unlike other proceedings for which Legal Aid might be available, there are no parties in inquests, only the properly interested persons, and witnesses are not expected to present legal arguments. The coroner ensures that the process is impartial and thorough, and he or she should assist families to ensure that their relevant questions are answered. This argument is unsatisfactory given that state agencies such as the NHS or the police will always have extensive legal representation at an inquest.
However, in some instances and subject to means testing, legal aid can be provided to an individual for inquests into the death of a member of the individual's family - see Legal Aid, Sentencing and Punishment of Offenders Act 2012 Schedule 1 Part 1 para 41. In some instances, exceptional funding may apply. A lawyer experienced in inquest work should always be consulted about legal aid.
Did the 2009 Act go far enough with reform?
For some, the reform process in the 2009 Act did not go far enough. A very good article on this point was published in the Law Society Gazette (Polly Botsford 18th June 2009) - Does the Coroners and Justice Bill go far enough - and is there enough money?
The role of the Chief Coroner:
The Ministry of Justice announcement of the appointment of a Chief Coroner sets out the principal responsibilities:
- Provide support, leadership and guidance for coroners in England and Wales;
- Set national standards for all coroners, including new inquest rules;
- Oversee the implementation of the new provisions of the Coroners and Justice Act 2009;
- Put in place suitable training arrangements for coroners and their staff;
- Approve coroner appointments;
- Keep a register of coroner investigations lasting more than 12 months and take steps to reduce unnecessary delays;
- Monitor investigations into the deaths of service personnel;
- Oversee transfers of cases between coroners and direct coroners to conduct investigations;
- Provide an annual report on the coroner system to the Lord Chancellor, to be laid before Parliament;
- Monitor the system where recommendations from inquests are reported to the appropriate authorities in order to prevent further deaths.
See also Coroner reform: update and implications for local authorities - Dominic Smales - Ministry of Justice March 2012.