The Judicial Review & Courts Bill: What does it mean for Inquests?
20 October 2021
The Judicial Review & Courts Bill is soon set to have its Second Reading in Parliament. The Bill as proposed will make wide-ranging changes to the operation of the courts and tribunals system, as well as to the law of judicial review.
The provisions on judicial review in Part 1 of the Bill have so far attracted the most interest (for good reason following the Independent Review of Administrative Law) but it would be a mistake to ignore the significant changes to the Coroners Service proposed in Part 2 (Chapter 4) of the Bill. These sections will likely have a profound impact on the experience of the inquest process for bereaved families.
According to the Explanatory Notes to the Bill, approximately 30,000 inquests are held in England and Wales each year. As is well-known, an inquest is an official, public investigation into deaths that are violent or unnatural, that have an unknown cause or that occurred in prison, police custody or in other state detention (eg while detained under the Mental Health Act 1983).
As a result, inquests can play a powerful role in exposing problems with the treatment or care provided to someone by state bodies. They can be a crucial way for bereaved families to get answers about what happened to a loved one before they died, so it’s important any changes to the system are thoroughly scrutinised.
How will inquests change?
The five key changes proposed by the Bill are:
- to broaden the circumstances in which a coroner is able to discontinue an investigation into someone’s death (Clause 37);
- to enable coroners to hold inquests wholly in writing, without a hearing, in specified circumstances (Clause 38);
- to allow for inquests to be held virtually (Clause 39);
- to remove the requirement for a jury inquest where COVID-19 (a notifiable illness) is suspected to be the cause of a death (Clause 40);
- to enable the Lord Chancellor to merge two or more coroner areas within a local authority where the new coroner area would not be the entire local authority area (Clause 41).
What does this mean for bereaved families?
One key concern with the changes proposed by the Bill is that they increase the discretion of individual coroners to limit the extent of an inquest (Clause 38) or investigation (Clause 37).
This means that decisions to discontinue an investigation or not to hold a hearing for an inquest will be made based on evidence that could change if tested. Key evidence relating to the way in which someone was treated prior to their death or which challenges the account provided by a state body may not yet have been disclosed to the family. This is particularly concerning in a context where many families enter the inquest process without legal representation and may therefore find it difficult to influence the outcome of the coroner’s initial determinations.
The provisions at Clause 39 for juries and coroners to sit remotely could also have profound impacts on the experience of families. It could become more difficult for families to understand proceedings and to interact with the coroner where clarification is needed. They may also lose the opportunity to see live evidence in person, and observe the jury’s reaction to it.
It is important to note that the Bill has been introduced in a context in which the coronial system has been under significant pressure. Inquest backlogs and delays are well-known to practitioners and families. Ministry of Justice data shows that families are facing longer and longer waits. For example, in 2020, 271 inquests had been open for more than a year, a 138 per cent rise on the year before.
It is made clear in the Explanatory Notes that many of the provisions in the Bill are aimed at helping to tackle these delays. However, it is important that responses to the backlog don’t come at the expense of families’ experiences of the process or the public interest.
What’s not in the Bill?
The Bill does not address the unfairness that many families participating in inquests do not have access to legal aid. This is despite the fact that state bodies regularly employ taxpayer funded legal representation.
There is a clear imbalance in a situation where, for example, the parent or sibling of the deceased must participate in an inquest alone, unsupported and with no legal experience, yet the relevant public authorities attend with a full team of highly skilled and specialised lawyers.
The original Hillsborough inquests in 1990 are a stark example. Families received no public funding, whilst the ambulance service, health authority and city council all had publicly funded legal representation, and senior police officers were represented by five separate legal teams. The families never gave up in their pursuit for truth and justice, but it took 27 years and another inquest (in which legal representation, travel and subsistence was provided to the families) to uncover the truth.
As a result, the Bishop James Jones Review of the experiences of the Hillsborough families urged the Government to introduce “publicly funded legal representation for bereaved families at inquests at which public bodies are legally represented”.
Although the Bill itself doesn’t address the question of funding, given the Justice Committee’s recent recommendations that echo those of Bishop Jones, and the Government’s encouraging response, it’s likely it will form part of the debate.
Inquests are an incredibly important mechanism through which families can get answers about the deaths of their loved ones. Hopefully when MPs debate the Bill they will give careful consideration to the experiences of families going through the system, and use this opportunity to make inquests as accessible and effective as possible for those who matter most.
Lily Lewis is a Pupil Barrister at Garden Court North.