Thursday 17 September 2020

The pandemic has been unprecedented in its natures and impact across the world; it has also affected inquests in England and Wales. With almost four months of curtailed coronial activity, most inquests will be significantly delayed.

In the Chief Coroners’ latest guidance (No 39), the expectation is that coroners should now be moving towards routinely conducting hearings again.

However, while the risks of COVID-19 remains, hearings are likely to involve a much greater reliance on technology and written evidence. Inquests may not entirely resemble the investigations we are used to.

Coroners should be discussing plans with councils to allow the safe resumption of hearings, including necessary adjustments within court buildings.

Coroners are being encouraged to hold pre-inquest review hearings to narrow the issues to ensure inquests are focused and witness lists are considered carefully.

There is also likely to be a greater focus on clearly defining the scope of an inquest and an increased use of pre-inquest review hearings to facilitate the preparation of hearings.

Also, as hearings to begin to start again, there will be an emphasis on remote participation and written evidence where possible. Although the inability to question witnesses is likely to be challenged where there are concerns it will result in less thorough investigations.

There are also likely to be cases where the precise cause of death is unclear, as no post-mortem was undertaken due to pressures on pathologists at the height of the pandemic.

In the case of complex inquests involving large numbers of interested persons, coroners may need to liaise with councils about alternative premises to accommodate the attendees and maintain social distancing.

The Chief Coroner expected some short Rule 23 inquests (where documents are read) would take place during the first few months of the pandemic. In our experience, this was the case, however, it has meant that almost all of the more complex and/or jury inquests have been adjourned to take place later this year, or in 2021.

COVID-19 related inquests

It is not yet clear how many COVID-19 related deaths have been reported to coroners. The Chief Coroner clarified at the start of the pandemic that deaths as a result of COVID-19 are due to the natural progression of a naturally occurring disease, so will not usually be subject to an inquest.

When a death has been reported, the coroner has to consider whether the duty to investigate is engaged. If the medical cause of death is COVID-19, and there is no reason to suspect culpable human failure contributed to the death, there will usually be no requirement for an investigation to be opened. However, where there is a suspected error related to how the virus was treated, or a failure to take precautions in the workplace, the duty to investigate may be triggered.

In COVID-19 related inquests, there are likely to be complex underlying issues relating to the availability or suitability of Personal Protective Equipment (PPE) or the prioritisation of medical resources.

We expect to continue to see an extremely broad range of approaches by coroners across the country in relation to COVID-19 deaths.

The scope of each inquest is determined by each coroner on a case-by-case basis.

One uncertainty is the extent to which coroners will allow consideration of public policy type issues, given that inquests are not usually the right forum to consider matters of public policy.

As with every inquest, everyone should be clear about the scope, so the relevant evidence is available, and the witnesses are properly prepared. Also, if a witness is to give evidence remotely, any practical considerations must be addressed in advance of the hearing. The aim is for the quality and clarity of witness evidence to be the same as if they were physically present in court.

Fatal accident inquiries in Scotland

In Scotland, a slightly different approach has been taken with the Crown Office having set up a dedicated unit to examine certain COVID-19 related deaths. Deaths of care home residents and employees who have contracted COVID-19 through their work have to be reported for investigation. It is then ultimately for the Crown Office to decide if a fatal accident inquiry should be help. As with inquests in England and Wales, the pandemic has exacerbated delays with fatal accidents inquiries and the Crown Office and Procurator Fiscal Service has been attempting to tackle the extensive backlog through a modernisation project with a focus on clearing older cases.

Anna Naylor, Principle Associate (anna.naylor@weightmans.com) and David Birch, Partners (david.birch@weightmans.com), Weightmans LLP

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