The Judicial Review and Courts Bill (the bill) heads back into Parliament on 25 January 2022 for the report stage. This means it has been read twice by the House of Commons and the House now has an opportunity to examine and amend the bill before a third reading.
The chances of changing the drab name are slim, but the name really could use some help, as it fails to convey the nature of the important reforms it proposes to make to the coroners court.
Using the ‘stop, start, continue’ approach, here is how I would love to see the bill amended:
Something it should stop:
Clause 39 relates to allowing inquests via video link and audio.
I have represented families at inquests by video link and in person. Whilst an in-person experience can sometimes be exactly what a bereaved family need in terms of the formality, and sombreness, I have seen first-hand the benefits of video-link inquests for families in certain situations. These benefits have included the possibility for family members from all over the country and the world to attend an inquest of a beloved family member. This also extends to witnesses. At an inquest in December 2021, I was able to put questions to a consultant radiologist based in Australia whose evidence was of great assistance to the coroner. Other benefits of remote inquests include simplifying the timetabling of medical witnesses (which allows inquests to be conducted more efficiently) as well as the ability for inquests to go ahead during strict periods of lockdown and other similar events, such as at an inquest I attended in January 2021.
So if I am for the option of video-link inquests, when it works for the family, what do I want the bill to stop? I want the notion that an inquest could be reasonably conducted in the 2020s only by audio to be taken to the scrap heap and dumped. Audio is not equivalent to video; so much nuance, body language and unspoken communication can be lost in audio. There is a reason that “video killed the radio star” and the same applies in court hearings.
I have endured hearings by telephone in the Queen’s Bench Division of the High Court and, even with experienced advocates, there can be confusion as to who is speaking and parties speaking over each other. I will never forget a telephone hearing I attended as a junior lawyer when a procedural judge pulled the plug on the whole thing and told the parties to appear before him the following week, so fed up was he of trying to deal with complex issues on the telephone. In my view, audio only cannot be justified for the sort of complex, sensitive issues raised in inquests.
Something it should start:
Any bill dealing with reforms in the coroners court has the opportunity to improve the experience of bereaved families. In my opinion, the simplest win for bereaved families would be universal access to legal assistance with inquests. At every inquest I have ever attended, the NHS Trust or insured driver had legal representation. There is an inequality of arms for the swathes of families who are unable to access legal assistance. Whilst charitable organisations and pro bono lawyers attempt to fill the gaps, many families remain without legal help and are unsure of their rights or how to request witnesses, disclosure and make submissions.
I would add provision for legal aid for all families facing an inquest in a heartbeat.
Something it should do better
The background to the bill is summarised by the government as:
“The coroners courts measures in the Bill are aimed at supporting the system’s post pandemic recovery. The measures will reduce unnecessary procedures in coroner’s courts and help address the backlog of cases which have accumulated during the pandemic.”
With clients waiting and waiting for inquests to be listed, I have seen the anger and frustration of bereaved families feeling left in the lurch. To that end I am all for a post pandemic recovery of the coroners court, however I agree with the Association of Personal Injury Lawyers (APIL) that safeguards need to be put in place so that bereaved families are not side-lined.
The bill proposes to allow coroners to discontinue an inquest where “the coroner is satisfied that the cause of death has become clear in the course of the investigation.” Clarity is needed on how families will be informed of such decisions, whether families will have a right to appeal discontinuance and what threshold is needed to be passed to allow such discontinuance. Previously it was tied to having a sufficiently clear post-mortem report but the proposed reforms remove the mention of the post-mortem report entirely.
Yes, work needs to be done to get the courts moving and have inquests heard, but it needs to be done with care.
So those are my dreams for the bill; I am interested to see what the House of Commons makes of it.
For more information APIL have published a briefing to Parliament which can be found here.