Alex Williams is an experienced inquest advocate with over a decade of experience representing NHS Trusts, Police Forces and state bodies in Article 2 and medical negligence inquests across the country. He represents the interests of families in inquests touching upon asbestos-related deaths.

Here Alex discusses the benefits that having specialist representation in inquest proceedings can bring.

---

Nearly two decades ago, I was instructed as a first six of pupil to sit quietly at the back of an inquest and take a note. For some, inquests are synonymous with noting briefs, but in many inquests, substantive legal representation is required to properly protect a client’s interests.

Background

A Coroner’s role and jurisdiction are very different from other areas of law, as is the inquisitorial nature of inquest proceedings. There are no parties, no pleadings and it is for the Coroner to call the relevant evidence in order to answer the four statutory questions of: (1) who the deceased was; (2) when they died; (3) where they died; and (4) how (ie: by what means) they died. In an Article 2 inquest, the meaning of ‘how’ broadens to ‘by what means and in what circumstances’.

Even for advocates seasoned in the civil and criminal jurisdictions, inquest proceedings can be seem confusing and alien. Instructing an advocate who has expertise in coronial proceedings can bring significant benefits to a client and instructing solicitor alike.

‍

Families

By their very nature, inquest proceedings are particularly emotionally charged for families. Whilst Coroners are encouraged to place the family ‘at the heart’ of the inquest process, the inquisitorial nature of the proceedings can be disconcerting for families; it is the Coroner who directs the investigation and who calls the witnesses This can cause the bereaved family to feel that they are not in control, or are being carried along by events. In addition, it is not unusual for there to be a number of organisations recognised as Interested Persons (the broad equivalent of a party in coronial proceedings), some or all of whom may have legal representation.

Instructing experienced inquest counsel will help a bereaved family to understand and participate effectively in the process and enable them to communicate their concerns/issues regarding the death clearly and at the right point in the process.

There are several key point in the process where the family is likely to benefit from instructing an experienced inquest advocate:

Pre-inquest conferences

An early conference can reap great benefits for the remainder of the process. In particular it can:

• Help to ensure the family have realistic expectations of what matters the inquest can and cannot resolve.
  ‍
• Allow the family to explain and the barrister to distil the central issues / concerns that the family wish the Coroner to investigate.^{‍
  ‍}
• ^‍Support families to understand what can be extensive and complex documentary evidence This is particularly true in medical negligence and Art.2 inquests.
  ‍
• Help to identify and obtain vital evidence which might otherwise be overlooked.

Pre-Inquest Review hearings

Pre-inquest reviews are the coronial equivalent of a directions hearing. A PIR is an important juncture in the proceedings, where the scope of the inquest may be set, requests for further documents made, relevant witnesses identified and decisions made about whether the Coroner needs to seek expert evidence. Legal submissions may be required as to whether the inquest engages the Coroner’s ECHR Article 2 obligations (a technical area of law) and whether a jury is required.

Building on the benefits of an early conference, effective representation at this stage can help to shape the inquest around the family’s issues / concerns and ensure that relevant stones are not left unturned.

At the inquest

It is usual for some or all of the organisations involved to be legally represented. Whilst the inquest is ultimately the Coroner’s investigation, having specialist legal representation levels the playing field with other Interested Persons and gives the family confidence that their interests will be protected.

The Coroners’ Rules 2013 prevent Interested Persons from making submissions to the Coroner (or jury) about the evidence. As a result, narrative building has to be achieved largely through the questions asked of witnesses. A skilled advocate can ensure this is done effectively and that a clear, consistent position is built for the client.

There are often areas of evidence at an inquest (classically evidence of the post-mortem examination) which a family may not wish to be present to hear. In addition, if the inquest is held over several days or weeks, attending for the duration can be emotionally draining. Being represented offers family members the flexibility to take breaks from the proceedings when they need to, knowing that they are not putting themselves at a disadvantage in doing so. Post-pandemic, many Coroners will have a live MS Teams link even in attended hearings, allowing family members to join remotely as and when they feel able to.

Effecting change for the future

Where a death occurs which could have been prevented, the bereaved family will often want the succour of knowing that changes have or will be made to prevent other families suffering in similar circumstances.

The Coroner has a power to make what are known as Regulation 28 or ‘PFD’ (Preventing Future Deaths) reports. The purpose of such reports is to notify relevant organisations of any circumstances which the Coroner considers give rise to a risk of future deaths and to invite their response and proposals to mitigate that risk.

Regulation 28 reports often arise out of complex evidence about the workings of an organisation’s systems and/or the arrangements for information-sharing / multi-disciplinary working between organisations.

Whilst a Coroner must consider whether a regulation 28 report is required regardless of whether any of the Interested Persons are represented, an experienced inquest advocate can help to distil and highlight failures or gaps in systems (both in questions and submissions) which might appropriately be the subject of a regulation 28 report.

Preparing for civil claims

This is discussed further below, but it is a trite observation that inquests provide an excellent opportunity to gather and preview evidence for any potential civil claim. Having legal representation throughout the inquest process can help a family make the most of that opportunity.

‍

Organisations

Whilst some of what has been covered above applies equally to organisations, it is useful to highlight a number of additional benefits that effective legal representation at an inquest can bring from an organisation’s perspective.
‍

Ensuring witnesses are well-prepared

If an organisation has been made an Interested Person, the Coroner will likely be calling one or more witnesses from the organisation.

Witnesses who are well-prepared and who understand the inquest process will be better equipped to explain clearly in their evidence what the organisation’s involvement and responsibilities were vis-à-vis the deceased. There are many occasions when the bereaved family will be assisted emotionally by a such an explanation and, in some cases, that explanation alone will be sufficient to resolve a particular issue for a family.

‍

Protecting an organisation’s reputation

Inquests call for a very different style of advocacy from adversarial civil claims. Adopting the right narrative and style of questioning is important to best maintain an organisation’s reputational interests. Adopting too adversarial an approach can alienate the family, the Coroner and (if there is one), the jury. And of course, Inquest are public hearings and after often the subject of press reporting. Whilst one cannot control what the press report, having a clear narrative and adopting the appropriate tone can pay dividends.

‍

Preparing for civil claims

The way an inquest is handled by an organisation can have a significant impact on other proceedings, most commonly civil claims for damages arising from the death.

Where it is known a civil claim is likely to follow, being represented at the inquest is an excellent opportunity to get a preview of the evidence witnesses can give and how they perform under questioning.

Letters of claim sent post-inquest often refer to the evidence given or admissions made by witnesses during the Inquest. Being represented at the Inquest means your legal team have the information to be able to: (a) know whether the assertions made are accurate; and (b) respond effectively, perhaps by referring to other evidence given or by putting the assertions into context.

‍

Regulation 28 reports

Having a regulation 28 report issued against your organisation can have an adverse reputational impact. Not only is the Coroner likely to announce any ‘regulation 28 issues’ in open court at the conclusion of the inquest, but the regulation 28 reports themselves are published online.

An experienced inquest advocate can assist an organisation to reduce the risk of a regulation 28 report by:

•  Identifying concerns or themes raised by the Coroner as the inquest unfolds and keeping the organisation abreast of them. That allows the organisation to consider what evidence it may need to adduce to address those issues, either from witnesses called     by the Coroner during the main inquest, or in what is commonly termed ‘regulation 28 evidence’ which seeks to explain to a Coroner what changes have been implemented (and/or are planned) since the death in question to prevent further deaths in similar circumstances.
  ‍
• Ensuring that clear evidence is elicited from the relevant witnesses about the organisation’s systems and practices (and any changes made since the death) to ensure the Coroner has a full and clear understanding of those matters.
  ‍
• Making legal submissions addressing any potential regulation 28 issues raised by the Coroner.

‍

Conclusion

The Coronial jurisdiction is unique in nature.  Not only do the matters that Coroners deal with have direct importance for the families and organisations involved, but they can have significant consequences for later proceedings in other jurisdictions.  

Having knowledgeable and experienced legal representation from an early point in the inquest process can pay dividends for a client, both at the inquest and beyond.

‍