Advocacy opportunities for junior counsel: Cross-jurisdictional guidance that Coroners should note

A 2021 study from the University of Surrey School of Law looking at gender and seniority of counsel before the UK’s highest court[1] (here) has shown that women are under-represented as leading advocates, especially in major civil and Business and Property Courts litigation before the Supreme Court.   Whilst there are some reassuring findings within the study, particularly the overall positive trend in increasing representation by female counsel, there remain stark variations between areas of law.

Seemingly prompted by that study, Dame Sue Carr, the first ever Lady Chief Justice of England & Wales has, within a month of being sworn in, published guidance aimed at redressing the gender balance by providing junior counsel in general, and female junior counsel in particular, better opportunities to advance oral argument in courts and tribunals.  In recognition of the importance for career development of being given the opportunity to present legal arguments to the court, the guidance is cross-jurisdictional, being co-authored by the President of every significant judicial division, including the Senior President of Tribunals.

The guidance here is now three months old, although, anecdotally, it seems many Coroners are not yet aware of its content. Whilst coroners don’t (yet) have the status of judges so as to fall under the Lady Chief Justice’s authority, it is nevertheless guidance from the highest judicial levels aimed at all judges and tribunal chairs, and so something of which all Coroners should want to be aware.

Mere bystanders? Obtaining the criminal records of lay inquest witnesses

Henry Gargan’s and Edward Butler’s Application [2023] NIKB 103 (here)

Although often overshadowed by the Bloody Sunday killings a few weeks earlier, the Springhill killings of 9 July 1972 still stand out as one of the most notorious events during the troubles. The five people shot dead in Belfast that day included three teenagers and a Catholic priest, who was said to have been waving a white flag as he went to try and assist one of the injured children.

The victims’ families considered that they were targeted and killed by soldiers who used unjustified and indiscriminate force on unarmed civilians. The army account was that the victims were caught in cross-fire when IRA gunmen shot at soldiers who used legitimate and justified force at a time of heightened tension in response to specific threats.

The original inquest into the five deaths, held in 1973, provided no closure when it returned an open verdict. Against that background the fresh inquest ordered by the Attorney General was always going to be a source of controversy.  The particular issue that arose for consideration in this judicial review claim was whether a Coroner obtaining the criminal records of witnesses who were at the scene of a death was a reasonable and proportionate step within coronial discretion or a disproportionate action that hampered the statutory function of the inquest through the chilling effect discouraging witnesses from coming forwards?

Are presumptions and burdens of proof relevant in inquests? Insanity and unlawful killing considered

R (Bryan) v HM Assistant Coroner for Buckinghamshire [2024] EWHC (Admin) 26 12 January 2024 (judgment here)

This most tragic of cases concerned the loss of two precious and irreplaceable lives when Ms Redmond put herself in the path of a train whilst holding her three year old daughter.

The inevitable conclusion of suicide in Ms Redmond’s inquest was not contested.  But the Coroner did not agree with the position of the Claimant (supported by the paternal side of the child’s family) that the child had been unlawfully killed by her mother.  In a long and detailed narrative conclusion regarding the child’s death the Coroner addressed her mother’s state of mind and determined that this was not an unlawful killing because Ms Redmond had probably been ‘insane’ when she had jumped.

The Claimant challenged both the form and substance of the Coroner’s conclusion, arguing that the Coroner’s finding had impermissibly reversed the presumption of sanity and, in its place, substituted a presumption of insanity.  The challenge failed on all grounds, however, as the Court held that not only was the Coroner entitled to make this finding on the evidence but, given the inquisitorial nature of an inquest, it would be inappropriate to attempt to transpose directly the concepts of a presumption of sanity and the burden of proof as they apply in the context of criminal proceedings to the very different context of inquisitorial coronial proceedings.

Keeping the deceased at the heart of the inquest

Death and taxes: the past, present and future of the coronial service
 A lecture by the Chief Coroner of England and Wales, HHJ Thomas Teague KC, celebrating 10 years post-reform

The Chief Coroner’s speech on the tenth anniversary of the implementation of the Coroners and Justice Act 2009, delivered on 22 November 2023 and available here is essential reading for all Coroners and inquest lawyers.

Aided by a historical perspective going back centuries, it constitutes a full, frank and fearless assessment of the structural deficiencies that remain embedded in the Coronial system. All too often, the system of Coronial investigation in England and Wales is not able to live up to its ideals and values. It remains a ‘forgotten service’. But the speech is a call to action, not just a lament. Its argument for Coronial work as the fulfilment of a ‘posthumous duty to the deceased’ should act as an inspiration for any Coroners, practitioners, and coronial staff perhaps struggling to get through the day given some of the challenges the system faces.

The Coroner is the oldest continuously existing judicial role in England and Wales. The history of the office is entertaining – the venue for many nineteenth-century inquests was the pub – but is not just of antiquarian interest. Whilst the Coroner’s role as a glorified tax collector has been eroded, the modern system is still a residue of its historic origins:

  • The Coronial system remains a means of administering local justice, removed from the national judiciary. A national Coronial service remains an ideal for which there is no apparent political appetite whatsoever. Coronial staff remain formally employed and line managed by local authorities and regional police. As all inquest lawyers know, there remains inconsistency of practice between areas.
  • Whilst all new Coroners must now be lawyers, there is a long history of debate and uncertainty over what professional standards are required of appointed Coroners. The selection of Coroners is still in the hands of local authorities, and not the Judicial Appointments Commission. There is no judicial member on the recruitment panel for Senior Coroners: the Chief Coroner is a silent observer with ‘a veto but no vote’.
  • Inquests, particularly held with juries, have long been a vehicle for anti-establishment and even radical political sentiment. Inquest jurors have consistently conceptualised their role as being one of holding the state to account.

Death Investigation: Coroners and Inquests

A short course for coroners, judges, lawyers and medical professionals
Course director:  Peter Thornton , Visiting Professor at King’s College London (the first Chief Coroner of England and Wales)

In person at King’s College London, Strand Campus, Bush House 

Tuesdays on the following dates: 20, 27 February and 5,12,19 March 2024.

The course will consist of a series of five interactive seminars which will explainand discuss the law and procedure of coroners. It will cover a comprehensiverange of topics from reporting deaths, investigating cases, conducting inquestsand reports to prevent future deaths. 

Participants will be expected to participate in discussion and give shortpresentations. They will consider the importance of the role played by coronersin the administration of justice: Who are they? What do they do? What is thepurpose of their work? How should they do it?

Course fee:

£950

Course accreditation:

CPD points (approval pending) and a King’s certificate of attendance.

Application:

Please contact Jennifer Penafiel at Law-ppee@kcl.ac.uk or visit https://www.kcl.ac.uk/short-courses/coroners-inquests