Open communications

The starting point for disclosure is to understand what a coroner's powers are in relation to: (a) obtaining information as part of the inquisitorial process; and (b) releasing that information to interested parties.

The Coroners and Justice Act 2009 (CJA) is not expected to be in force until April 2012. Until this date, coroners are bound by the Coroners Rules 1984 but solicitors representing interested parties at the inquest will need to have a working knowledge of both regimes.

Preparing for a hearing

The Coroners Rules 1984 do not give coroners jurisdiction to order disclosure. As part of the preparation for a hearing, a coroner will obtain witness statements from witnesses and documentation from the relevant parties. A coroner cannot compel a witness to provide a witness statement but may obtain a witness summons pursuant to CPR 34.4 ordering the witness to attend the hearing and/or disclose relevant documentation. To some extent the coroner is dependant on the willingness of a witness to provide a witness statement.

Schedule 5 of the CJA 2009 sets out a coroner's powers to obtain evidence as part of the inquisitorial process. The new rules give a coroner the power to:

• issue a notice requiring a person to attend at a particular time and place to give evidence at an inquest;
• produce documents which relate to a matter that is relevant to an inquest;
• produce for inspection, examination or testing any other thing which relates to a matter that is relevant to an inquest; or
• request that an individual provide evidence in the form of a written statement within a specified timescale.

The individual who receives the notice has the option to apply to the senior coroner to request that the notice be set aside or varied on the basis that the individual is unable to comply with its terms, or it is not reasonable in all the circumstances to require him or her to comply with such a notice.

The new rules also set out a coroner's powers in relation to entering, searching land and the seizure of property; the exhumation of a body for examination; and reporting any action that, in the coroner's opinion, should be taken to prevent the occurrence or continuation of circumstances creating a risk of future deaths. With the rules for obtaining evidence in a single statutory provision, and the power to obtain written witness evidence, it is anticipated that coroners will be better equipped to focus their enquiries while preparing for a hearing.

Release of documentation to interested parties

A coroner has individual discretion to release documentation to interested parties. How this discretion is exercised depends on whether the state's investigative obligation imposed by article 2 of the European Convention of Human Rights is engaged. Three decisions, one from the Court of Appeal and two from the Administrative Division of the High Court, illustrate the court's approach upon being asked to review decisions by coroners not to release evidence to interested parties.

The first decision is that of the Court of Appeal in R v HM Coroner for Lincoln ex parte Hay [2000] Lloyds Rep Med 264. This case concerned an inquest into the death of a prisoner who died of diabetic ketoacidosis while in Lincoln Prison. Approximately one month before the hearing, the coroner informed the solicitors representing the deceased's wife that it was not his practice to provide a list of the witnesses he intended to call. He repeated his position in a further letter written on the day before the inquest started. The inquest went ahead and the jury returned a verdict of death by natural causes. The deceased's wife sought a judicial review of the way the inquest had been conducted on the basis that the coroner had failed to disclose witness statements or any other documents to her legal advisers, and that the coroner misdirected the jury on the verdicts available to them. Although the Court of Appeal agreed that another inquest should be held, Mrs Hay was unsuccessful in relation to her argument that the coroner should have released the witness statements before the hearing. Lord Justice Brooke, who gave the judgment of the court, stated that it is for each coroner to decide how best he should perform his onerous duties in a way that is as fair as possible to everyone concerned.

The issue was considered again in R (Smith) v The Assistant Deputy Coroner for Oxfordshire [2006] EWHC 694 (Admin) which arose from the death of a private solider in the Territorial Army while serving in Iraq. Given the circumstances of Private Smith's death, it was agreed between the parties that there may have been a failure by the army to provide an adequate system to protect life, and, therefore, a Middleton approach (R (Middleton) v West Somerset Coroner [2004] UKHL 10) to the inquest '“ where the coroner should consider in a wider sense the circumstances in which the death occurred '“ should prevail. Notwithstanding the agreement as to the scope of the inquiry, the coroner asserted that he had no power to provide disclosure of documentation (including reports prepared by the Ministry of Defence) to the interested parties. Mr Justice Collins considered the position pre and post Middleton and held that the coroner must have all the information to hand but he must bear in mind the requirements of the procedural obligation to ensure the deceased's family play a proper and effective part in the process. He accepted that it may not always be necessary for there to be full disclosure to interested parties, in particular to the next of kin, of all reports and statements. He also took into account, and agreed with, Sullivan J's comments in the case of R (Bently) v HM Coroner for Avon (2001) 74 BMCRI, namely that there must be a presumption in favour of full disclosure if possible. It was held that in an article 2 case it will be difficult to justify any refusal to disclose relevant material.

The issue was considered further by Mr Justice Irwin in R (Ahmed) v HM Coroner for South and East Cumbria [2009] EWHC 1653 (Admin). This was a non-article 2 case involving the unlawful killing of a 16-year-old girl. The deceased's family were represented by solicitors who contacted the coroner in advance of the hearing to request copies of all information or documents in his possession. The coroner responded by saying: 'I note your blanket request for all information or documents in my possession. I cannot comply with this request, but if you can be more specific I will consider it again.' Approximately one month before the hearing, the Ahmed's solicitors wrote to the coroner and renewed their request for copies of all information or documents. The solicitors did not request specific or narrower disclosure. At the inquest, a verdict of unlawful killing was returned. The deceased's family applied for permission for judicial review of the findings of the inquest.

Mr Justice Irwin considered the case law and concluded: 'There is no hard and fast obligation on the part of the coroner to disclose any witness statements or material: it is a matter of the exercise of discretion. Over time, and in particular in the last decade or so, there has been a much more liberal approach generally taken towards disclosure in inquests and that is to be, in general terms, applauded.' He went on to say that it would have been preferable had the coroner chosen to disclose some of the key material; for example, the witness statements of those whom he intended to call. Nevertheless, the approach taken by the coroner could not be considered unreasonable.

In what followed, Mr Justice Irwin gave some useful observations on the issue of disclosure that should be followed by coroners in non-article 2 inquests. The coroner has the difficult responsibility of ensuring that the inquest is not carried beyond proper bounds. For instance, the inquest is an inquisitorial not adversarial process. The process is designed to ascertain the facts at a public hearing rather than allowing each side to prove their pre-formed case. The coroner will need to be aware that there may be hidden tensions or competing positions between the parties involved. The role is for the coroner to strike a balance between the parties which can be achieved, in Mr Justice Irwin's opinion, by giving some disclosure in the form of the witness statement of those intended to be called.

Time will tell whether these judicial observations will find their way into statutory guidance. Section 45(2) of the Coroners and Justice Act 2009 states that Coroners' Rules may be made to cover, among other things, disclosure of information. It is submitted that a system whereby advance disclosure of witness statements of witnesses the coroner intends to call at the hearing would go some way to prevent interested parties viewing the reluctance to disclose documents with scepticism.

Where are we now?

What principles/guidance can be taken from the cases referred to above?

• As a result of the nature of the article 2 obligation on the state to investigate a death, it will be difficult for a coroner to justify refusing to disclose relevant material to interested parties in cases where article 2 is engaged.
• In non-article 2 cases, at the very least disclosure of the witness statements of the witnesses the coroner intends to call at the hearing should be disclosed to interested parties. However, the coroner has discretion to disclose information in the circumstances of each case; therefore, a blanket request for information (as was requested in the Smith case) is unlikely to be met with a favourable response.

Those representing interested parties at an inquest should, therefore, open correspondence with the coroner as soon as practicable to determine whether the inquest will be an article 2 inquest, and, in the case of a non-article 2 inquest, to request as specifically as possible the documentation/information they want to be disclosed.