“Happy 2nd Birthday” to the Coroners and Justice Act 2009

The CJA 2009 entered the “terrible twos” this week having come into to force on 25 July 2013. Its birthday gift was the publication of the ‘Second Annual Report of the Chief Coroner to the Lord Chancellor: 2014-2015’, which details the gradual evolution of the Coroner’s Service as a combination of the CJA 2009 and the efforts of the Chief Coroner lead the service (mostly willingly) into the 21st Century.

Having had his initial term of office extended for a further year to October 2016 the Chief Coroner’s mission to encourage reform and develop consistency throughout the Coroner’s Service, through training, guidance and advice to coroners, continues to make strides.

Of the half a million or so deaths in England and Wales each year around 223,000 were reported to coroners in 2014-2015 and 25,000 went to an inquest. That the number of inquests held is 5000 less than the previous year is, one hopes, a reflection of s.4(1) CJA 2009 allowing many more reported deaths to be signed off without an inquest being required after a coroner has made preliminary inquiries under s.1(7); it means 5000 bereaved families have avoided the needless angst of waiting for an inquest into a naturally caused death. That the new provisions for earlier release of the body before even the inquest has been opened are being widely applied is also welcome news for bereaved families. It is equally encouraging that inquests are now happening much sooner, with the number of inquests still pending over a year after the death having been reduced by almost half to 1467.

However, these annual inquest figures no doubt also mask a new spike in inquests following natural deaths of the elderly in care homes, as the Chief has recently (and he states reluctantly) advised that any death of a person subject to deprivation of liberty and a MCA DOLS authorisation is a death ‘in state detention’ and so requires an inquest[1].

Many of the 25,000 inquests held in the past year will have been conducted on the papers with no live witness attending. There were only 397 jury inquests in the past year – 50 or so less than the previous year. The Chief’s report does not reveal how many of these were mandatory juries under s.7(2) and/or relate to deaths in custody. Although sadly statistics from elsewhere tell us that year on year figures of self-inflicted deaths in prison remain concerningly high.

There were 504 ‘Prevention of Future Death’ reports (under paragraph 7(1) Schedule 5 to the 2009 Act) issued in the year. They are all published, with redactions where necessary, on the judiciary website. Although there is no way to collect data that can tell us how many future deaths are actually prevented by these reports, the importance the Chief Coroner places on this public function is demonstrated by him providing coroners guidance with a standard form for making the reports and “selecting certain reports to pursue” himself. Examples of PFD reports he pursued in the last year included ambulance attendance times, deaths in custody and child deaths.

The Chief has also taken long needed steps towards increased consistency of practice amongst coroners by issuing 18 pieces of separate guidance and five law sheets to assist coroners, whilst also instituting compulsory residential training courses for all 380 Senior Coroners and Assistant Coroners. Although the Chief is keen to state that, as only the courts can determine the law, this his guidance just ‘advice’ designed to do no more than give coroners the necessary tools for making their own decisions. However he regularly backs up that guidance when he appears as a member of the court in High Court applications for judicial review of coroner’s decisions and orders for a fresh inquests under section 13 of the Coroners Act 1988. The judgment handed down last week in Shafi v Senior Coroner East London [2015] EWHC 2106 (Admin) [2015] Inquest Law Reports 154 is an example of one of his judicial decisions that have emphasised several elements of good coronial practice in line with his guidance on ‘The Discretion of the Coroner’ and ‘Pre-inquest Review Hearings’. Over the last year there have been four judicial reviews and five statutory applications under section 13 regarding coroners. (See the Inquest Law Reports index for more details).

It is noteworthy that the Chief already considers that the 2 year-old Act needs amending. He asks the Lord Chancellor to consider amending s.1(4) CJA to allow deaths at sea to be investigated by a coroner in the absence of a body even if the death may not have occurred ‘in or near the coroner’s area’. At present if the death is beyond the reach of the coastal coroner’s jurisdiction there can be no investigation or inquest. He also suggests removing the limitation upon s.4 CJA that only permits discontinuance of an investigation after a post-mortem examination. He sensibly suggests that s.4(1) should be extended to cover cases where material reveals the cause of death without a post-mortem examination and where is no other good reason to continue the investigation.

It remains to be seen whether the Chief’s recommended change to the High Court’s powers under s.13 Coroners Act 1988, that had been accepted in principle by the previous Government, will be enacted. S.13 allows the High Court, on an application brought with the permission of the Attorney General, to quash an inquest and order a fresh one where it is necessary or desirable in the interests of justice to do so. At present the High Court’s powers are limited to quashing the inquest and ordering a fresh inquest. Whilst in some cases a fresh investigation and inquest is clearly required, there are several others which require only an uncontroversial change to the record of the inquest, and do not need a fresh inquest with the associated extra time, public expense and, above all, extra distress for families. A simple change to the High Court powers would permit this. Indeed I would suggest that it would be even more pragmatic, proportionate and cost effective if the need for the ‘permission stage’ of obtaining the Attorney General’s fiat under s.13 could also be done away with where the application to amend the record is brought by a Senior Coroner.



[1] See Chief Coroner’s Guidance No.16