As the five year anniversary of the coming into force of the Coroners and Justice Act 2009 approaches (25th July 2018), and coronial proceedings are increasingly at the forefront of justice, was an opportunity missed to improve judicial oversight of them in the Court of Appeal?
In R (Silvera) v Senior Coroner Oxfordshire [2017] EWHC 2499 Admin, HHJ Lucraft QC (Chief Coroner for England and Wales), sitting in the Administrative Court, gave a detailed judgment on the question of whether the Senior Coroner for Oxfordshire ought to have resumed an inquest. In his judgment, the Chief Coroner concluded that the Senior Coroner should have taken a decision to resume the inquest, and the decision not to do so was unlawful and in breach of both the obligations under Article 2 of the Convention and the common law obligations to do so.
It was a straightforward ruling, not least since the decision of the Senior Coroner erred in different respects, including applying the wrong test for resuming an inquest (see paragraph 32. of the judgment).
Mr Justice Charles agreed with the decision and added:
“The Chief Coroner for England and Wales has sat as a member of the Court in a number of the cases to which we have referred relating to the decisions of Coroners. Where, as here, the challenge does not engage any of the duties of the Chief Coroner of England and Wales as such it seems to me that this is both appropriate and helpful.”
That observation is plainly correct but questions remain as to why it is necessary for aggrieved interested persons to challenge such decisions by a complex and often unfunded claim for judicial review at the end of the process.
Questions remain as to why it is necessary for aggrieved interested persons to challenge such decisions by a complex and often unfunded claim for judicial review at the end of the process
In R (Cooper) -v- HM Coroner for North East Kent [2014] EWHC 586 (Admin), Mr Justice Mitting said this in respect of interlocutory challenge, at paragraph 19:
“Accordingly, in my judgment, challenges of this kind should not in the ordinary case be entertained by the High Court. No judge sitting in this court, having, as this court does, jurisdiction to entertain a challenge, can ever confidently say that there should never be one. But I find it difficult to envisage circumstances in which this court should ever entertain such a challenge.”
Essentially, claims for judicial review in the ordinary case are to await the conclusion of the coronial proceedings. Law Sheet no.5 concerning the discretion of the Coroner, first issued by the Chief Coroner on 16th February 2015, confirms the position at paragraph 35.
What of the interested person seeking a more straightforward route of challenge to coronial proceedings? Potentially a challenge during the currency of the proceedings, such as a straightforward application directly to the Chief Coroner, deciding initially on the papers and giving a decision?
Section 40 of the Coroners and Justice Act 2009 provided a right of appeal to the Chief Coroner against decisions of a Coroner falling within subsection (2). This route of appeal was new and it enabled aggrieved interested persons to appeal directly to the Chief Coroner.. It was, to use the language of the explanatory notes, an appeal route to the Chief Coroner in the absence of a ‘simple appeal route for bereaved people and other interested persons’.
A section 40 decision of the Chief Coroner could thereafter be appealed to the Court of Appeal, on a point of law only. The Court of Appeal could either confirm the decision made by the Chief Coroner, substitute its own decision or quash the decision and ask the Chief Coroner to make a fresh decision.
However, this statutory route of appeal never came into force. It was repealed by the Public Bodies Act 2011, before other provisions of the Coroners and Justice Act 2009 came into force, including the appointment of the first Chief Coroner in September 2012. The reasons are unclear. It was a decision taken at a time of austerity and at a time when many felt that the position of Chief Coroner may never make it to fruition.
Section 40 could have been brought into force to provide a straightforward statutory route of appeal and to complement the other changes in the coronial process provided for by the statute and the rules. That could be considered a significant missed opportunity for the coronial service and to bereaved persons in particular.
