Background
Historically, Coroners' disclosure requests were not enforceable, but the Coroners and Justice Act 2009 (“the Act”), and the accompanying Coroners (Inquest) Rules 2013 (“The Rules”), gave Coroners power to obtain disclosure and impose a fine not exceeding £1000, up to 51 weeks in prison, or both where requests are not complied with.
Individuals, corporates and public bodies are not obliged to disclose documents unless asked to do so by the Coroner, and disclosure to the Coroner can be resisted if it would not be required in civil proceedings, it is incompatible with an EU obligation or due to public interest immunity.
Although it is preferable to cooperate with disclosure requests where possible, the client’s commercial sensitivities should be considered, and where documents are disclosed to the Coroner, submissions should, if necessary, be made regarding onward disclosure.
Under the Rules, Coroners must provide documents they consider "relevant to the inquest" to Interested Persons (“IP”) but disclosure by the Coroner can be refused for certain reasons including where the Coroner considers it "irrelevant to the investigation".
Challenges
The wide discretion afforded to the Coroner and the absence of a prescriptive disclosure process provides significant scope to challenge disclosure.
The recent case of HM Senior Coroner for West Sussex v Chief Constable of Sussex Police and others [2022]EWHC 215 (QB) considered documents relating to matters involving air accident investigations. Following an aircraft incident which resulted in 11 deaths, investigations were undertaken by the Air Accident Investigation Branch (“AAIB”) and the police. The pilot was charged with 11 counts of gross negligence manslaughter but he was acquitted at trial and the inquest resumed.
Under domestic and EU law certain material cannot be disclosed for safety reasons. However, the Coroner sought some of this material in order to assess the AAIB's investigation, due to concerns that it was flawed.
The Coroner’s application was refused as it could discourage witnesses from assisting in investigations and it was noted that the inquest should not re-examine matters that have already been thoroughly investigated.
Relevance, which is determined by the Coroner and has implications for disclosure, will depend on scope and whether Article 2 ECHR is engaged. In R (Morahan v HM Assistant Coroner for West London [2021] EWHC 1603 (Admin) the family of Ms Morahan, who died while on leave from a psychiatric unit, argued that, contrary to the Coroner's decision, the investigative duty arose under Article 2. The court considered that Article 2 was not engaged as there was no evidence of an arguable breach of a substantive duty by the state. The judgment sets out clear guidance in Article 2 cases, which will impact on the disclosure requirements going forwards, although this matter is due to be considered by the Court of Appeal this month.
There has been extensive commentary on R (on the application of Maughen) v HM Senior Coroner for Oxfordshire [2020] UKSC 46, which resulted in the standard of proof for conclusions of unlawful killing and suicide being lowered to the balance of probabilities. As a result, IPs may seek to “protect” their position, which may result in more submissions regarding disclosure and Coroners issuing more notices requesting documents, making the process more adversarial.
Comment
Coroners' decisions on disclosure may be challenged by judicial review but the higher courts are clear that, to allow Coroners freedom to undertake investigations in a fair and fearless manner, they will only intervene where absolutely necessary.
Recent cases call into question whether a more prescriptive disclosure system is appropriate, but this needs to be weighed against the value of the wide discretion afforded to the Coroner. Either way, as can be seen from the case law above, expert advice is crucial when managing the disclosure process.
DWF's Inquest Team, led by Legal 500 listed Inquest Lawyer Rebecca Connell, are able to support your organisation throughout the entire Inquest process- from disclosure issues & investigation, to representation at the Coroners Court and handling of any civil claims which may arise.
For more information on our services, please contact:
Rebecca Connell – Inquest lead: Rebecca.connell@dwf.law
Rachel Jones – Partner and Head of Police, Care and Justice Team: Rachel.jones@dwf.law
