Over the past few weeks, many of us have watched the news and have seen the impact of COVID-19 on our daily lives. Most of us now remain confined to our homes, waiting until it is deemed safe to return to normal life.
For those in the legal profession, the wheels of justice have not ground to a halt.
The coronavirus pandemic has caused great uncertainty and some considerable unease as to the state of pending hearings. Many courts are unable to operate. Some courts have since experimented and adapted to these new challenges we face, with many hearings taking place via channels such as Skype, Zoom, or by telephone. However, for those awaiting a forthcoming Inquest or Pre-Inquest Review, uncertainty has remained, with many querying whether Coroner’s courts can adapt to the current challenges. Coroner’s courts are a particular venue where live witness evidence is often of paramount importance, especially to bereaved families.
The Chief Coroner recently released a Guidance Note for all Coroners concerning their approach to COVID-19, which we consider alleviates some uncertainty in the current circumstances.
Can an Inquest be heard remotely?
The Lord Chief Justice’s current position is that physical hearings should not take place unless they are urgent and essential business and that it is safe for all of those involved for the hearing to take place.
The Guidance Note emphasises that if a hearing can take place remotely, it should. This may require some investigation by Interested Persons as to whether the particular venue, at which the Inquest is to be heard, has the necessary technology to allow for the hearing to be heard remotely. In some circumstances, this may not always be possible. It is essential, however, that the hearing must take place in public; thus, the Coroner would need to conduct the Inquest or Pre-Inquest Review from court.
It is, ultimately, a matter for each Coroner as to whether or not a hearing can continue. There are likely to not only be issues in respect of technology and whether it can be heard remotely, but also regarding whether each Interested Person and their witnesses can attend. Whilst it is anticipated that some Inquests will need to be held over the coming months, Interested Persons should explore all channels available to them to allow the inquest to proceed.
The Chief Coroner’s COVID-19 Note #3 indicates that those Inquests listed to start between the 31st March 2020 and the 28th August 2020 that involve a jury, and are of any significant length, should be adjourned. Those Inquests currently listed from the 1st September 2020 onwards should generally remain on the list. Inquests listed in the same time period that do not involve a jury, yet which require large numbers of witnesses to attend in person, should be reviewed and may too be adjourned.
What if a witness cannot attend court?
One key issue that Coroners and Interested Persons may face is that any witness who is a medical practitioner, or indeed a key worker, is likely to be on the front line dealing with the coronavirus pandemic. Consequently, those individuals are unlikely to be able to attend court. In addition, witnesses may be suffering from COVID-19 or may be classified as a vulnerable individual, which may render them in isolation at the time the inquest is due to take place. These issues do not just affect Inquests but all court hearings involving the general public and particularly those that require the involvement of medico-legal experts or other personnel.
When looking specifically at medical professionals and pathologists, the Guidance Note does acknowledge that Coroners should recognise the primary clinical commitments and high pressure on their services they may currently face.
Prevention of Future Death Reports (“PFDs”)
If a Coroner made a PFD before the pandemic took hold of the UK, it may be difficult to respond if the report was made against a medical professional, a prison, an NHS Trust or the like. Whilst some Coroners may review any outstanding responses and write to recipients inviting an extension, others may not have the opportunity to do so. Extensions should therefore be requested if the COVID-19 pandemic has interfered with a timely response.
However, the Guidance Note does warn that there will be no blanket extensions for all PFDs. It is a reminder that the ongoing pandemic should not promote opportunism if an organisation or business, for example, is continuing to work as normally possible.
The COVID-19 pandemic has serious implications for post-mortem examinations. Whilst it is unlikely that there will be a need for a post-mortem if a death is believed to be due to COVID-19 (as it is a naturally occurring disease), there is a possibility that routine post-mortem examinations for Coroners will not be available during the crisis. As those reading will know, this is an unprecedented situation where pathologists, mortuaries and body storage facilities are likely to be extremely limited, to the extent where even if a post-mortem examination could be performed, it simply cannot be requested. Coroners will have to carefully consider whether a post-mortem is considered absolutely necessary in the circumstances.
Things to bear in mind
- If you are a solicitor or in-house lawyer dealing with coronial matters, it is worth considering the Chief Coroner’s COVID-19 Note #3 in full;
- Inquests that require the participation of juries or large numbers of witnesses are unlikely to go ahead and may be adjourned, particularly those listed before the end of August 2020;
- Coroners may require smaller Inquests to proceed remotely. You should liaise with the relevant Coroner’s officer and make preparations accordingly;
- Although extensions can be requested, Interested Persons who are required to produce a response to a Prevention of Future Death Report cannot assume these will be granted.
1 Chancery Lane has a dedicated team of barristers who are experienced in coronial law and regularly represent all Interested Persons at Inquests and Pre-Inquest Hearings. If you have any questions or require any assistance, please do not hesitate to contact the clerks here: