The principle of open justice, allowing pubic scrutiny of how citizens come by their deaths, is at the core of the inquest process. Save in exceptional circumstances[1] Inquests should be heard in open court with the media able to fully report the proceedings.
“The names of those who are born and those who die are rightly a matter of public record. The fact that someone has died is always a matter of proper public interest and the ability to record it is a normal incident of society.”[2]
Readers will be familiar with Coroners’ powers under Section 39(1) of the Children and Young Persons Act 1933 to restrict reporting of the name of a child who is a witness or an IP. However Coroners have very limited alternative powers to protect the vulnerable who are not themselves an IP or witness at the inquest.
In exceptional cases, High Court judges have powers to make or extend a Reporting Restrictions Order (RRO) to protect others, such as family members of the deceased, from unwelcome press attention (see earlier UK Inquest Law Blog post here re an RRO made in the Court of Protection in anticipation of an inquest).
However another often overlooked provision applicable to Coronial proceedings, and used effectively in a recent inquest, is Section 1 Sexual Offences (Amendment) Act 1992.
The open justice principle traditionally requires witnesses to be identified and for there to be no restrictions on the media reporting of inquest proceedings. In order that justice can be done there are, however, exceptions but any exception must be, as Burton J commented in R v Bedfordshire Coroner ex parte Local Sunday Newspapers Ltd (2000) 164 JP 283:
“The least interference in the public exercise of justice that can be tolerated…”
Restrictions on the open administration of justice in inquests can be achieved by: (i) restricting the evidence that is heard openly at an inquest (i.e. through case management or witness anonymity); or (ii) by imposing restrictions on the media reporting of the evidence.
In many inquests the need for reporting restrictions can be negated by the judicious use of case management directions designed to limit the public use of names, addresses or other identifying features that are not relevant to the matters to be determined. The Coroners (Inquests) Rule 11(5) may be a helpful tool to allow the discussion of such case management directions to be conducted with all IPs in private at a pre-inquest review (if the interests of justice so require), although it is suggested that good practice would be to then explain the steps taken and the justification for any case management decisions in open court, so far as is practicable. In inquests where the identifying information is directly relevant and where witness anonymity is not achievable or cannot be appropriately managed through case management directions then the Coroner may need to consider reporting restrictions.
Section 39(1) of the Children and Young Persons Act 1933 (“CYPA”) permits Coroners to make orders restricting media reporting of any particulars calculated to lead to the identification of a child or young person concerned in the proceedings. Surprisingly, that power is limited to children who are: “the person by or against or in respect of whom the proceedings are taken, or…being a witness therein”. The CYPA would not, therefore, permit a Coroner to impose reporting restrictions in respect of a child that is mentioned during an inquest but is neither a witness nor an Interested Person (“IP”).
This problem arose in a recent inquest during which both witnesses testimony and the deceased’s pre-death account of relevant matters in written documents, made repeated references to named children (who were not witnesses or IP’s) as having been the subject of a campaign of sexual abuse. The Coroner understandably wanted to prevent the publication of any information that could lead to the identification of those children. The solution lay in s.1 Sexual Offences (Amendment) Act 1992 which provides:
“Where an allegation has been made that an offence to which this Act applies has been committed against a person, no matter relating to that person shall during that person’s lifetime be included in any publication if it is likely to lead members of the public to identify that person as the person against whom the offence is alleged to have been committed.”
The matters that are restricted include the person’s name, address, the identity of any school or other educational establishment attended by the person etc. The offences to which the Act applies are listed at section 2 and include rape, indent assault etc. If any matter is included in a publication in contravention of section 1, the persons publishing can be guilty of an offence and liable on summary conviction to a fine. In the case referred to above, the Coroner was able to effectively rely on section 1 and reminded the media of the restrictions imposed on publication.
Surprisingly, in inquests that do not involve sexual offences, the only method of restricting media reporting is to make an application to the High Court. Any applications would necessarily involve an exercise in balancing the rights of the media under Article 10 ECHR and the Article 8 rights of the person on whose behalf the application is made, as outlined in Re LM (Reporting Restrictions: Coroner’s Inquest) [2007] Inquest Law Reports 221. The competing values of privacy and freedom of speech will be closely scrutinised in the individual case and neither is by its nature privileged over the other.
Practically, any application to the High Court for restrictions on publication should first be raised with the Coroner at the pre-inquest review and then made well in advance of the inquest. In reality, High Court applications will only be necessary in a minority of cases where anonymity is not achievable and where the issue cannot be practically managed though case management directions.
Footnotes
[1] Covered by r.11(4) Coroners (Inquests) Rules 2013
[2] UCL v Miss G [2016] EWCOP 28