Inquest blog series – Correcting the Record: s.13 Coroners Act 1988 applications for a fresh inquest

Coroners and inquests have been looking into sudden and unexpected deaths in England since the 12^th century. This is a long time to get processes and procedures right. But no system is perfect. Sometimes significant errors are made at inquests, rendering their conclusions unsafe. In other cases, evidence emerges (sometimes decades after the inquest concluded) which casts serious doubt on the correctness of the conclusion. However, once an inquest had concluded, the coroner who conducted the inquest, the Senior Coroner for the area (if different), the Chief Coroner and the Attorney General (‘AG’) are all powerless to simply rewrite the Record of Inquest to fix the error and/or to account for crucial new evidence.

Judicial review may provide the answer where there was a clear, reviewable error of law by the coroner and the dissatisfied party can bring the claim promptly after the inquest’s conclusion. However, judicial review is not the answer where new evidence had emerged since the inquest or the window for judicial review had closed. In such cases, the process of quashing the inquest and obtaining a fresh inquest can proceed by (a) firstly obtaining a fiat (i.e. an authority) from the Attorney General and (b) using the fiat to make an application for a fresh inquest to the Divisional Court under s.13 of the Coroners Act 1988 (‘s.13’). This process can be initiated by an Interested Person (often the Family), the Senior Coroner for the area (following emergence of new evidence or after spotting a serious error by a Deputy or Assistant Coroner) or even the Attorney General—whoever has the benefit of the AG’s fiat. This is a complex area of law, but the steps below are a good starting point:

Step 1: consider the case against the s.13 criteria

Section 13 (1) sets out the relevant test:

13.—  Order to hold investigation.

(1)  This section applies where, on an application by or under the authority of the Attorney-General, the High Court is satisfied as respects a coroner (“the coroner concerned”) either—

(a)   that he refuses or neglects to hold an inquest or an investigation which ought to be held; or

(b)   where an inquest or an investigation has been held by him, that (whether by reason of fraud, rejection of evidence, irregularity of proceedings, insufficiency of inquiry, the discovery of new facts or evidence or otherwise) it is necessary or desirable in the interests of justice that an investigation (or as the case may by, another investigation) should be held.

It is helpful to consider the s.13 test in two stages: Stage 1 (identifying an error, irregularity or new evidence which may trigger a fresh inquest) and Stage 2 (identifying why it is necessary or desirable in the interest of justice to re-open the inquest).

Stage 1 includes a non-exhaustive list of defects with the original investigation (note the ‘or otherwise’ wording) and incorporates judicial review-type challenges. If there was simply insufficient evidence to justify the particular conclusion arrived at, that activates the s.13 jurisdiction (R. v Cardiff Coroner Ex p. Thomas [1970] 1 W.L.R. 1475, DC). Where a challenge alleges an error by the coroner on a factual judgment or exercise of discretion, the same standard of review will be applied as in judicial review cases, namely whether the decision was unreasonable  (Terry v East Sussex Coroner [2002] Q.B. 312 at [21]; McDonnell v West London Assistant Coroner [2016] EWHC 3078 (Admin) at [29].) The issue is whether a reasonable tribunal, directing itself correctly as to both law and fact, could have reached the conclusion to which the coroner in fact came.

Stage 2 is more nuanced. The principles appropriate to an application under section 13 were authoritatively set out in the case arising out of the Hillsborough disaster (Attorney-General v HM Coroner for South Yorkshire (West) [2012] EWHC 3783 (Admin); [2012] Inq LR 143):

10 We shall focus on the statutory language, as interpreted in the authorities, to identify the principle appropriate to this application. The single question is whether the interests of justice make a further inquest either necessary or desirable. The interests of justice, as they arise in the coronial process, are undefined, but, dealing with it broadly, it seems to us elementary that the emergence of fresh evidence which may reasonably lead to the conclusion that the substantial truth about how an individual met his death was not revealed at the first inquest, will normally make it both desirable and necessary in the interests of justice for a fresh inquest to be ordered. The decision is not based on problems with process, unless the process adopted at the original inquest has caused justice to be diverted or for the inquiry to be insufficient. What is more, it is not a pre-condition to an order for a further inquest that this court should anticipate that a different verdict to the one already reached will be returned. If a different verdict is likely, then the interests of justice will make it necessary for a fresh inquest to be ordered, but even when significant fresh evidence may serve to confirm the correctness of the earlier verdict, it may sometimes nevertheless be desirable for the full extent of the evidence which tends to confirm the correctness of the verdict to be publicly revealed. [Emphasis added]

The Court in Vaughan [2020] EWHC 3670 (Admin) noted the relevance of the deceased’s family’s attitude to the prospect of a further inquest (par. 9). On the facts of that case (involving lengthy delays in pursuing the section 13 application), the Court found that a fresh inquest was not ‘necessary’ but did find that it was (in the interests of justice) ‘desirable’, in line with the family’s wishes (par. 17-18) but also given the possibility of a different conclusion (par. 19).

Whether there is a possibility of a different conclusion will be a significant factor in the exercise of discretion (even though a possibility is not a requirement), so quibbling over procedural missteps at the inquest which ultimately would have made no difference to outcome is unlikely to warrant a  s.13 application.

It will be important for your client to liaise with the coroner who conducted the case (if he/she is not the applicant) and other Interested Persons, particularly the Family, to ascertain their views and representations (in writing if possible). These will impact on your consideration of whether a s.13 application is viable. However, a fresh inquest may be deemed ‘necessary’ even in the face of the family’s reluctance to have the investigation re-opened.

Step 2: make the application for AG’s authority

This is a requirement of making any s.13 application (unless the AG is the applicant). There is no time limit post-inquest to make the application to the AG, but inexplicable delay will likely make a fresh inquest less ‘desirable’ and ‘necessary’. In practice, the decision on an application is often made by the Solicitor General on the AG’s behalf. The AG’s Note on s.13 applications suggests that the test for granting a fiat is that the AG must be satisfied, on the evidence provided in the application, that there is a reasonable prospect of the application succeeding in the High Court. This means that all evidence which the applicant intends to provide to the Divisional Court must be sent to the AG. It is sensible to include quite a formal submission, with an outline of the legal principles, case law and an indexed bundle. If/when the fiat is granted, your client will then be in a good position to make the application to the Divisional Court (which is subject to a 6-week time limit from grant of fiat) without delay.

Including evidence of what the affected persons’ positions are on the proposed quashing will expedite the process, as the AG will not then have to reach out to them. A signed consent order is the ‘gold standard’ here—although it will not preclude the AG and the Divisional Court having to apply their minds to the statutory test.

Expect the AG’s decision to take several months. If the AG refuses the fiat, that is the end of the road as that refusal is not susceptible to judicial review.

Step 3: make a Part 8 claim in the Administrative Court

On receipt of the AG’s fiat, the applicant must move quickly. Practice Direction 49E at par. 20.3  requires the Part 8 claim form (accompanied by the AG’s fiat) to be filed and served on “all persons directly affected by the application within six weeks of the grant of the Attorney General’s fiat”.  Par. 20.1 specifies that the s.13 application is heard and determined by a Divisional Court.

If the Senior Coroner is the applicant and the Assistant/Deputy is deceased (as is often the case where historical cases are reopened), you will need permission under rule 8.2A of the Civil Procedure Rules to issue the claim form without naming a defendant. Do not identify the Family as a defendant to get around this requirement, because it will irk the Divisional Court. Where this is an issue, obtain the procedural permission in good time (by making an application to the Administrative Court) before the s.13 claim itself is issued.

If you have done the recommended legwork to prepare a detailed application/bundle (including submissions) at Step 2, then Step 3 should be relatively quick and painless. If there has been a substantial gap (between the last time you elicited representations from those affected and the Part 8 application), it is worthwhile to include an updated position within the claim.

Step 4: attend the Divisional Court hearing

You will be able to gauge whether the application is likely to be controversial from the length and nature of the listing. It is increasingly common for the Divisional Court to list uncontroversial/unopposed applications for a 15-minute hearing, with no requirement for parties to attend. Nonetheless, it may be sensible to make an application to attend as a ‘watching brief’ just in case the Divisional Court has any questions or concerns on the day. In all cases, the Divisional Court must convene and pronounce that the relevant test is met; this is not a ‘rubber stamping’ exercise.

For contested applications (or where the Divisional Court has doubts that s.13 criteria are satisfied), a longer listing requiring skeleton arguments, a hearing bundle and an authorities bundle is to be expected.

When quashing the inquest and ordering a fresh inquest, the Divisional Court may order that it be heard before a different coroner (particularly where the application involved justified criticism of the coroner’s original decision). The Divisional Court cannot simply substitute a different conclusion or rewrite the Record of Inquest; this requires a fresh inquest. Arguably, the process would be simplified if the Divisional Court had the power to correct an obvious legal issue with the Record of Inquest, where the fresh inquest would not serve any other purpose (and may prove distressing to the Family).

Section 13 includes the power for the Court to award such costs “as may appear just” against the coroner concerned. So long as the coroner was the successful applicant or was neutral on the matter of whether the original inquest ought to be quashed and a fresh inquest ordered, costs are unlikely to be awarded against the coroner.

Conclusions

The final step is to hold or participate in the fresh inquest.

As is apparent from the multiplicity of steps to follow before the Record of Inquest can be corrected via a fresh inquest, s.13 is a complicated and time-consuming process, which should not be undertaken lightly. Nonetheless, this process is often necessary and significant for those affected. In this writer’s experience, the s.13 process allowed a family of a person missing since the 1980’s to obtain closure through an exhumation of the body and a fresh inquest being ordered, with new DNA evidence then being used to identify the remains. In another case, the family of a man who died following an accident on a cruise ship were able to quash the incorrect conclusion of ‘natural causes’ which prevented them from claiming on an insurance policy.

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Authors

Alex Ustych

Call 2010

Related areas

Inquests

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