Representation at Inquests
Broadly speaking, there are two categories of people or organisations who become involved in the inquest process. (This is the pre-inquest investigation stage through to the full inquest hearing.) They are called either (1) “interested persons” or (2) witnesses of fact. We set out below the difference between the two:
(1) - Interested Persons:
An interested person has the right (subject to certain limitations) to see all the evidence the coroner is going to use at the inquest hearing. An interested person has the right to attend the inquest, (and any Pre-Inquest Review hearings) can question witnesses and make representations to the coroner (again subject to certain legal restrictions). If an interested person is not legally represented some coroners will try to assist them to put questions to a witness. Who is automatically an interested person is listed in section 47 of the Coroners and Justice Act 2009. The following family members and relatives of the deceased are interested persons: a spouse, civil partner, partner, parent, child, brother, sister, grandparent, grandchild, child of a brother or sister, stepfather, stepmother, half-brother or half-sister of the deceased. Other automatic interested persons are “a person who may by any act or omission have caused or contributed to the death of the deceased, or whose employee or agent may have done so” S47 (2) (f). This is the provision that makes it standard for a coroner to make the relevant NHS Hospital Trust an interested person where the death occurred in one of its hospitals. Sometimes someone wishes to play an active part in the inquest but does not fit into any of the automatic interested person categories. They will have to make a case to the coroner to be included under the category “any other person who the senior coroner thinks has sufficient interest” S47 (2) (m). The inquest lawyers at Alexander Chambers can advise on interested person status and can assist with drafting representations to the senior coroner.
(2) -Witnesses of Fact:
When the senior coroner starts an investigation into a death he wants to gather all the evidence relating to the events preceding the death because he will need to make findings of fact about what happened. The people who were involved in these events are witnesses of fact. If the police have been involved, for example with a fatal road traffic collision they will have taken witness statements that get passed to the coroner. With hospital deaths the coroner usually requests the hospital trust to provide statements from the relevant health care personnel who dealt with the deceased. It is not always the case that large organisations prepare the witness statements so sometimes an individual will receive a request directly from the coroner’s office asking them to provide a statement. In our experience this makes some people anxious about what they need to write, whether they will have to give evidence, whether they need to be represented, and a whole host of questions about the inquest process. Often the coroner asks for a statement from a family member of the deceased. Our lawyers are very experienced at advising on these issues. In addition to families, we have helped a broad range of individuals including health care workers, agency nurses, doctors or nurses who are not being supported by their employers, and care home managers. Many witnesses of fact are not interested persons. This means they cannot be represented at the inquest. But our lawyers can advise on how the inquest will work so that a witness of fact knows what to expect.
An Expert witness may be instructed by the coroner to provide a report on a certain aspect of a case. For example, where the deceased suffered from a rare medical condition to provide an overview of how it presents and appropriate treatment regimes.
Pre-Inquest Review Hearings (PIR)
In all but very straightforward cases a coroner will usually hold a PIR that all interested persons will be invited to attend. This is a type of case management hearing to deal with issues like the scope of the inquest, further evidence and which witnesses should attend to give evidence. These hearings can be vital for families who wish to invite the coroner to consider certain issues at the inquest or think there may be issues relevant to a Report to Prevent Future Deaths. If a family is considering legal representation it is advisable to instruct a lawyer before a PIR so either the lawyer can advise on matters to be raised or can deal with the PIR on the family’s behalf. A PIR is the opportunity for other interested persons to argue to restrict the scope of the inquest or to limit further disclosure or enquiries. Chief Coroner Guidance No 22: Pre-Inquest Review Hearings is a useful document that explains how a PIR should be conducted. Read the relevant guidance
It remains a serious issue in the public domain that public bodies such as hospital trusts will fund their own legal representation even for non- Article 2 inquests where determining the questions how, when and where the deceased died will have a very limited scope. For these “domestic” inquests bereaved families are still unable to obtain legal aid to fund representation for the inquest hearing but may be able to get limited assistance with pre- preparation through legal help. Many families feel at a disadvantage faced with the realisation that other interested persons will have a legal representative to ask questions at the inquest so decide to instruct a lawyer to assist them. Our lawyers attend inquests throughout England and Wales to represent families at domestic inquests.
There is still a significant inequality of arms in Article 2 and other high-profile cases between bereaved families and public bodies. The families have no automatic right to public funding but must meet the criteria in the Lord Chancellor’s Exceptional Funding Guidance (Inquests) in order to get legal aid for representation. The public bodies have representation paid for out of government funds. The second Hillsborough Inquests placed a spotlight on this unfairness. A current government review of legal aid for families is underway. A consultation period finished on 31 August 2018 during which the government called for evidence from bereaved families, lawyers, judges, coroners, special interest groups and other who had been involved in the inquest process to contribute.
In the meantime, there has been an amendment to the Lord Chancellor’s Exceptional Funding Guidance (Inquests) with respect to cases involving suicide and death in custody cases that is supposed to make it much easier for the families to get legal aid. In practice this will affect very few because the number of death in custody cases each year are very small. The government made an ad hoc decision to grant legal aid to the families of the bereaved for the Grenfell Public Inquiry.
In non- Article 2 inquests Alexander Chambers lawyers have previously provided representation for bereaved families for a death at school due to choking, suicides, railway deaths, road traffic collisions (including a cyclist road traffic collision involving tram tracks), care home deaths, hospital deaths, care in the community deaths, drug and alcohol related deaths, maritime deaths. For families who do not want full representation our lawyers can provide a service to review the evidence, pin-point the key issues and advise what questions to ask.
In Article 2 and other high-profile cases our lawyers have represented various categories of interested persons in death in custody cases, and road traffic collisions involving the police and highways authorities.
Getting the right Lawyer on your side
If you would like to discuss any aspect of an inquest case in confidence and without obligation, please call Alexander Chambers on 0845 652 0451 and ask to speak to one of our inquest lawyers. Our barristers are highly experienced in inquest law and procedure, and will be able to advise you on evidence and questioning of witnesses. Good preparation is the key to improving outcome prospects.
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