Inquest blog series – The role of Advocates at Inquest Hearings  

There is some tension as to the precise ambit of inquests. When she handed down the decision of the Supreme Court in R(Maughan) v HM Senior Coroner for Oxfordshire [2020] UKSC 46, Lady Arden delivered a summary of her reasoning. She said (emphasis added):

Coroner’s inquests are not criminal trials. They have a very long history…going right back to about 1196. But they have developed quite considerably recently. They are inquiries into when, where, and in what circumstances the deceased met his or her death. They are very important events because they are an opportunity to explain to the family what happened to their loved one and also because they tell those in authority, what happened so that measures can be taken which are appropriate to help prevent the same thing happening in future. This has led, inevitably, to juries and coroners giving longer and more judgmental conclusions than in the past. So if you attended a coroner’s inquest many years ago, and then attended one now, you may find that the process has changed considerably.

In contrast, the more recent decision of the Court of Appeal in R(Morahan) v HM Coroner for West London [2022] EWCA Civ 1410, is much more uncertain as to the inevitability of the process described by Lady Arden, and as to how welcome that is (emphasis added):

An inquest remains an inquisitorial and relatively summary process. It is not a surrogate public inquiry. The range of coroners’ cases that have come before the High Court and Court of Appeal in recent years indicate that those features are being lost in some instances and that the expectation of the House of Lords in Middleton of short conclusions in article 2 cases is sometimes overlooked. This has led to lengthy delays in the hearing of inquests, a substantial increase in their length with associated escalation in the cost of involvement in coronial proceedings. These features are undesirable unless necessary to comply with the statutory scheme.

This difference of view marks out a line that all advocates must walk in inquests. Families and public authorities will often have a common interest in uncovering facts and learning lessons, but this must be pursued within the confines of an inquisitorial summary process. This challenge explains the intricacies and nuances facing an advocate in an inquest.

Several tactics exist to ensure that this challenge is met:

1. Understanding the ‘funnel analogy’

The Chief Coroner has often recommended that inquests are understood as a funnel. The wide end of the funnel is at the beginning of the process and involves a potentially wide ranging inquiry with plenty of evidence considered. The funnel then narrows over the process and reaches its narrowest point at the end, with a potentially very brief conclusion.

Advocates must understand that this means that a wide array of evidence and material may warrant initial examination. Although precision will be required in questions, this can be informed by the whole tapestry of the evidence. Good advocacy in the coroner’s court will often have a wide foundation but a narrow eventual focus.

2. The importance of legal submissions

As is well known, interested parties are prohibited from addressing the coroner on matters of fact. This place an onus on advocates to incorporate advanced legal theory into their advocacy. The ability to use legal concepts and submissions as a vehicle for drawing out appropriate factual points is extremely important. 

3. Witness selection

It is, of course, up to the coroner to decide who the witnesses are. However, it is over simplistic to imagine that interested parties do not have a role in identifying potential witnesses. It will be useful for the legal advisers and advocates to draw up a potential witness list as soon as they are aware that an inquest is likely. This will ensure that at any pre-inquest review an advocate is able to proactively suggest possible witnesses, and to ensure that the final inquest hearing is not beset by problems caused by witnesses who do not remember the crucial events or who cannot speak to an issue with which the coroner is especially concerned.

A particular area in which coroners are likely to defer to an interested person’s choice of witness is where that witness is coming to court to address the lessons learnt. It is vitally important that such witnesses are carefully chosen to ensure that they are fully versed in any issues that have arisen and can speak to steps taken to mitigate such issues in the future. In particular, the chosen witness should have read the reports of any independent regulator or ombudsman arising from the death and should preferably have been involved in making changes. By definition, such witnesses should have sufficient seniority to make meaningful changes.

4. Welfare considerations

While advocates may be used to the difficult emotional issues that can arise in inquests, it must not be forgotten that these cases can be especially traumatic for witnesses. Good advocacy requires that attention is given to this at an early stage. In particular, coroners may be receptive to there being a ‘ground rules’ hearing at which the particular vulnerabilities of witnesses can be addressed. Moreover, ensuring that proper welfare support is provided to witnesses in the run up to the hearing may ensure that those witnesses are best able to give an account of themselves.

5. Navigating hostility

Inquests can engender a degree of hostility and concern on all sides. The bereaved family may have very understandable grievances toward the public bodies involved and their witnesses. By a similar token witnesses may react to being placed under scrutiny by ‘shutting down’ or otherwise failing to engage with the process as they should. This requires care on the part of an advocate. Different approaches can be deployed, but it will always be necessary for advocates to avoid increasing the temperature. Calm but well targeted questioning is most likely to garner an engaged and considered response.

6. Leveraging expertise

Inquests often involve complex medical or technical evidence. Collaboration with experts to understand details that may elude non-specialists is vital. Early engagement with experts will also allow advocates to plan their questions and ensure that the Coroner is provided with all necessary help. It may well be that this process will bring fresh considerations to light or raise issues that have not been aired up till then.

7. Interacting with the Coroner

The inquisitorial nature of inquest hearings demands a sophisticated approach to interactions with the coroner. Advocates must strike a delicate balance between collaboration and advocacy. Recognising when to defer to the coroner’s expertise and judgment and when to assert a different perspective is a key skill. Ultimately, Coroners are usually most receptive to collaborative advocates and not to those who seek to push their point come what may.

8. Engaging with Parallel Legal Proceedings

Inquest hearings may not be the end of the legal journey. Good advocacy anticipates the possibility of subsequent legal actions, such as civil actions or regulatory inquiries and plans accordingly. It is vital to understand a client’s overall strategy from the first to ensure that each piece of the wider litigation jigsaw fits.

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Authors

Robert Cohen

Call 2009

Related areas

Inquests

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