Inquest blog series – PIRs: how to make effective submissions on Article 2, scope, juries, and witnesses

Rule 6 of the Coroners (Inquest) Rules 2013 provides that a coroner may hold a Pre-Inquest Review (“PIR”) at any time during the course of an investigation and before an inquest. PIRs enable efficient and open case management which, in turn, ensures that the inquest itself runs as smoothly as possible. They are usually the first opportunity that Interested Persons (“IPs”) have to make submissions on scope, issues, evidence, disclosure, witnesses, and the overall conduct of the inquest. Using this opportunity effectively requires good preparation and a proactive approach.

Preparation: where to start?

Coroners should provide a written agenda in advance of all PIRs to give IPs fair notice of the topics under discussion.[1] Typically, the agenda will cover matters such as IP status, issues, scope, Article 2, juries, disclosure, witnesses, timetabling, and listing. If no agenda has been circulated, be proactive in requesting one: the PIR will be more efficient and effective if those present have had the opportunity to consider the issues in advance.

Where appropriate, the agenda should also provide the coroner’s provisional views so that IPs can identify areas of agreement and opposition. In more complex matters, IPs should be invited to provide written submissions in advance. Even where these are not explicitly sought, it may be beneficial to provide them, particularly where you anticipate that a topic may prove contentious.

Is Article 2 engaged?

Although Article 2 is often considered at the PIR, it is a question which can be revisited at any time as the evidence emerges. The threshold for Article 2 engagement is low and, in many cases, it will be obvious that it is engaged (consider a self-inflicted death in a prison, or a police shooting). In others, there may be considerable scope for legal argument (medical cases and deaths in hospitals are particularly ripe for complexity).

Where Article 2 is engaged, it is engaged for everyone. That is, if it is deemed engaged by virtue of the conduct of one IP, the conduct of all others will be subject to the same level of scrutiny.[2]

Scope

The fundamental purpose of any inquest as set out in s.5 of the Coroners and Justice Act 2009 is to answer the four statutory questions of who, how, when, and where the deceased came by their death (‘how’ being modified as appropriate where Article 2 is engaged). A coroner’s decision on scope represents their view as to what is necessary, desirable, and proportionate by way of investigation to enable this statutory function to be discharged.[3]

Coroners have considerable discretion in determining scope, but that discretion is not unfettered. Most obviously, questions of causation are central to delineating the proper scope of an investigation and identifying which matters must be investigated, which there is a discretion to investigate, and which the coroner is not permitted to investigate. Where Article 2 is engaged, the coroner has a discretion (but not a duty) to investigate issues which may have contributed towards the death but not those which cannot even arguably be said to have contributed.[4]

Determining the scope in any given case will be a highly fact-specific assessment so IPs should consider these questions carefully in advance of any PIR and be ready to actively assist the coroner in deciding which issues properly fall within the scope of the investigation.

Is a jury required?

Section 7(1) of the Coroners and Justice Act 2009 requires that an inquest must be held without a jury unless either the requirements set out in s.7(2) are met or a coroner exercises their discretion under s.7(3). Again, it will often be obvious if a jury is required. Where a coroner is considering exercising their discretion, they should take into account all relevant matters including: the wishes of the family (which are relevant, but not determinative), submissions on behalf of other IPs, whether the facts resemble the types of situation where a jury is mandated, the circumstances of the death, any uncertainties in the medical evidence, the need for a reasoned judgment, and factors such as whether the inquest will be very document-heavy or relate to historical matters.[1]

The fact that Article 2 is engaged is not determinative of the question of whether a jury is required and, as a matter of principle, the coroner should determine the scope of an inquest before considering whether to summon a jury.[2]

Witnesses

Coroners have a wide discretion to decide which witnesses to call. They need not call everyone who might give relevant evidence, but should call sufficient witnesses to undertake a full inquiry (what that requires will be a fact-specific question informed by the view the coroner takes on scope). Given this, a sensible starting point is for the coroner to circulate a provisional witness list and invite IPs to comment.

Keep in mind that, particularly at the early stages, IPs will often have a more informed view of the involvement of their own witnesses, their roles, knowledge, experience, and expertise, than the coroner. Given this, there is real value in taking a proactive approach: identify potential witnesses early, consider if there are any gaps in evidence, and be ready to make suggestions as to who should be called or read.

Along with identifying any witnesses of fact, IPs should also give early consideration to whether prevention of future deaths evidence will be needed and, if it might be, who would be best placed to provide it. Some coroners will give early indications on PFD matters, but IPs cannot and should not rely upon the coroner to make such requests. Again, there is real merit in being proactive.

Key principles

From this whistlestop tour it is clear that the issues IPs face at even the most a straightforward PIR are (i) interrelated – with some dependent on others – and (ii) deeply fact sensitive: they cannot be approached in isolation and cannot meaningfully be considered without engaging with the evidence.

Given this, there is simply no substitute for front-loading the work. Getting on top of the evidence and engaging with witnesses early on will enable you to take an informed view on the central questions and be proactive in assisting the coroner. This, in turn, provides the best opportunity to ensure that the inquest itself is full and fair, but also efficient and appropriately focused.

[1] For more on the proper procedure for PIRs see Brown v HM Coroner for the County of Norfolk [2014] EWHC 187 (Admin) at [38]-[44] and The Chief Coroner’s Guidance No. 22: Pre-Inquest Review Hearings.

[2] R (Sreedharan) v Manchester City Coroner [2013] EWCA Civ 181.

[3] Coroner for the Birmingham Inquests (1974) v Hambleton and Ors [2018] EWCA Civ 2081 at [48].

[4] Speck v HM Coroner for District of York & Ors [2016] 4 W.L.R. 15.

[5] Fullick v HM Coroner for Inner North London & Ors [2015] EWHC 3522 (Admin) at [42].

[6] Fullick v HM Coroner for Inner North London & Ors [2015] EWHC 3522 (Admin) at [43]; Paul v Deputy Coroner for the Queen’s Household and the Assistant Deputy Coroner for Surrey [2007] EWHC 408 (Admin) at [42].