R (Maguire) v Assistant Coroner West Yorkshire [2018] EWCA Civ 6, 17.1.2018
In a sequel to our earlier blog piece the Court of Appeal have delivered their judgment upholding the decision of Mr Justice Holroyde[1] who had found that the Assistant Coroner had been correct to decline to hear oral evidence from nine children who had contact with the killer of their teacher on the morning of her death, and who had heard his threats to kill and/or knew he was carrying a knife, but had not revealed this to any adult before the death.
The Lord Chief Justice noted that under the Coroners Act 1988 and its predecessors, a coroner was required to examine such witnesses as appeared “expedient”[2] and whilst the formulation is different in the 2009 Act[3] which simply empowers a coroner by notice to require a person to attend to give evidence or to produce evidence, nevertheless, the change has not affected the basis upon which a coroner’s decision to decline to call or seek evidence may be challenged, which is on the usual Judicial Review grounds[4].
In dismissing the appeal on all grounds the Court of Appeal endorsed the Coroner’s approach of balancing the value of the evidence against the potential harm to the pupils of giving evidence. In this case, given the absence of any relevant policies or rules regarding reporting the presence of knives in school, it was very difficult to see how the proposed questioning of the nine pupils would have any value at all. Exploration of the individual child’s thinking in connection with the decisions he or she made that morning when confronted with knowledge of what the killer was saying and doing was not within the scope of the inquest. The decision not to call these witnesses was therefore plainly rational.
Interestingly the Court was uncritical of the Assistant Coroner’s approach of treating the cohort of pupils as one, and so not making any separate inquiries of the impact of giving evidence upon each of them individually, nor expressly taking account of how witness safeguards, for example video-link facilities or screens[5], might reduce any distress caused to a particular individual by giving evidence. The Court of Appeal appear to have accepted, without any detailed consideration of the point, that that the underlying harm would not be prevented by using such measures in this case.
Witness safeguards
Whilst that decision must be right on the unusual facts of this particular case, it is telling that the witness safeguards provided for in rules 17 and 18 are rarely employed in Coroners Courts when compared to their frequent use in the criminal and family jurisdictions. Perhaps because of the (supposedly) inquisitorial rather than adversarial nature of an inquest, what has been learned in the other jurisdictions about achieving best evidence from a vulnerable witness, is sometimes overlooked and rarely formally applied in the Coroners Courts. Even when the vulnerability of a witness is known, it is unusual for there to be any structured consideration of whether questioning should be in accordance with the Advocates’ Gateway[6]. A properly constituted “Ground Rules Hearing” where detailed consideration is given to the particular needs of a vulnerable witness is rarely convened during the inquest process.
A Ground Rules Hearing should by now be a familiar tool within the inquest process.
It might of course be expected that coroners will adopt a sympathetic and sensitive approach to questioning a vulnerable witness. However not all vulnerabilities are objectively apparent. What has been learned in the criminal jurisdiction is that without a structure in which to frame the potential need for special measures, accompanied by a formally agreed understanding between the court and the advocates, the court process risks traumatising (or re-traumatising) those vulnerable persons who are asked to give evidence.
Within the courts system generally there are now a wealth of resources available to assist the judge and the advocates obtain evidence appropriately from children, young people and vulnerable adults, and to ensure that such people are treated with appropriate care. This is both a requirement of humanity, and in the interests of justice because it will maximise truthful and reliable evidence.
The coronial jurisdiction should not miss out. Coroners and inquest advocates should ensure that they consider not only the limited specific powers in the Rules (screens/video-link) and anonymity[7] but also the way in which the inquest process should be conducted within the coroner’s discretion to accommodate the young and vulnerable where necessary. Wider use of the Advocate’s Gateway toolkits in coroner’s courts would be a good place to start.
Use of Ground Rules Hearings
A Ground Rules Hearing should by now be a familiar tool within the inquest process. It might easily form part of a pre-inquest review and so can even have the advantage of being heard in private under r.11(5)[8] if it is deemed necessary to discuss a witness’s confidential medical information in the course of hearing argument from the interested persons and if the Coroner considers that excluding the public would be in the interests of justice.
As well as the detailed toolkits in the Advocate’s Gateway, those presiding and appearing in Coroners courts should also be familiar with Chapter 2 of the Judicial College Equal Treatment Bench Book (February 2018)[9] on “Children, Young People and Vulnerable Adults”. These resources can serve as a starting point guide and a source of inspiration for Coroners and individual practitioners. However, tailored and focused coronial guidance is perhaps already overdue on how the needs of the vulnerable can best be met during a coroner’s investigation and inquest bearing in mind the specific role of an inquest and the statutory context of the Coroners and Justice Act 2009.
Footnotes
[1] [2017] EWHC 2039 (Admin)
[2] Section 11(2) Coroners Act 1988
[3] See Schedule 5
[4] But note the challenge to the decision as to the scope of the inquests into the 1974 Birmingham Bombings – where a Divisional Court has said that since the decision on scope of an inquest involves a judgment rather than the exercise of a discretion, a successful challenge to the decision can be made on the basis that it is wrong, rather than on the more demanding basis that it is irrational or disproportionate. R (Hambleton) v Coroner for Birmingham Inquests [2018] EWHC 56 (Admin) 26 Jan 2018, at para 29
[5] Rules 17 & 18 of the Coroners (Inquests) Rules 2013
[6] https://www.theadvocatesgateway.org/images/toolkits/1-ground-rules-hearings-and-the-fair-treatment-of-vulnerable-people-in-court-2016.pdf
[7] See Chief Coroner Guidance No 25 “Coroners and the media”, 30 September 2016
[8] Coroners (Inquest) Rules 2013
[9] https://www.judiciary.gov.uk/wp-content/uploads/2018/02/equal-treatment-bench-book-february-v6-2018.pdf