*/
Two years on, there remains limited awareness of the standards required for those practising in the Coroners' Courts and the accompanying resources, say Tim Suter and Sophie Cartwright KC
It will be well known by all those that are regularly involved in inquests that, despite the difficult evidence which an inquest will need to explore, it is vital that it remains an inquisitorial process.
The recent case of R v Morahan [2021] EWHC 1603 (Admin) made clear that an inquest remains an inquisitorial, summary process. The scope of the coronial investigation must be kept within proper bounds, focused on the relevant and causative evidence to address the statutory questions.
Too often, however, an inquest may become adversarial, or the vulnerable needs of a witness are overlooked. There is an ever-present risk that a witness will be re-traumatised by the events they are asked to remember. Similarly, there will be people who – despite the limitations on the court’s jurisdiction – wish to apportion blame, or otherwise use the proceedings as a prelude for subsequent adversarial litigation.
This prompted a review of competences by the regulators for those practising in the Coroners’ Courts, under the leadership of the Chief Coroner, and production of a suite of resources for practitioners.
Yet, there remains limited awareness of the standards required in the competency framework and the accompanying resources.
In September 2021, Competences for Lawyers Practising in the Coroners’ Courts was jointly published by the Bar Standards Board (BSB), the Solicitors Regulation Authority (SRA) and Chartered Institute for Legal Executives (CILEx) Regulation.
The guide sets out the standards expected of advocates. Breaches may lead to a regulator taking action against a legal professional. In the foreword to the Competences, the Chief Coroner of England and Wales, His Honour Judge Thomas Teague KC, observed:
‘All lawyers who practise in coroners’ courts should appreciate – and should explain to their clients – that an inquest is not a means of apportioning blame, let alone a form of litigation, but a sharply focused and necessarily limited investigation into four questions: who the deceased was, and when, where and by what means the deceased came by his or her death. Against that background, the bereaved must always remain at the heart of the process.’
The guide details four competences:
The collective purpose of the four competences is to ensure collaboration with the coroner to facilitate the exercise of the court’s jurisdiction. This is redolent of the duties of cooperation found in the procedural rules for other tribunals.
To this end, competency 1.2 declares:
‘You should: …
1.2 Assist the coroner in the disclosure of all facts relevant to the inquisitorial process…’
This duty of assistance is the core obligation of these competencies; it highlights the central importance of the inquest being an inquisitorial search for the truth. It is supported by a corresponding duties of 'awareness' and 'response'.
The former is to be found in competency 2:
‘You should:
2.1 Recognise the central role of bereaved families and have knowledge and understanding of their vulnerability during an inquest.
2.2 Have knowledge and understanding of the potential vulnerability of interested persons and witnesses during an inquest.
2.3 Adapt the delivery of your service to the needs of such vulnerable people.
2.4 Make sure that those being represented understand the jurisdiction and procedure of the Coroner’s Court and manage their expectations sensitively.’
The practical demonstration of this awareness and response is detailed in competency 3:
‘You should:
3.1 Speak clearly and concisely, using plain language, especially when communicating with those who are vulnerable.
3.2 Recognise that an inquest is an inquisitorial and fact-finding exercise, and your style of questioning must be appropriate. In particular, recognise that whilst firm and robust questioning may sometimes be necessary, an aggressive and hostile style of questioning is not appropriate.
3.3 Adapt your style of advocacy and personal interactions to the circumstances and potential vulnerability of those participating in the inquest, demonstrating empathy as appropriate.
3.4 Restrict questions to those that are relevant to the purposes of the inquest.
3.5 Be respectful and professional at all times, both inside and outside the courtroom.’
The BSB, SRA and CILEx Regulation oversee compliance with these standards. Plainly, there is public interest that they do so. However, there remains limited awareness among practitioners of the competency framework.
Alongside the competences, Resources for those practising in the Coroners' Courts have been published to support practitioners' learning and development needs and meet the challenges of practising in inquests.
The resources were developed in collaboration with the SRA and CILEx Regulation, and with the assistance of the Chief Coroner and his office, the Deputy Chief Coroner, the Ministry of Justice, practitioners (barristers, solicitors and legal executives), coroners, bereaved people who have been involved in inquests in addition to the organisations that provide help and support, such as the Coroners’ Court Support Service and INQUEST.
For some time, these resources have included video presentations from the Chief Coroner, the SRA, CILeX, and others, and link to other important materials including the toolkits on the Advocate’s Gateway (TAG) and the relevant sections of the Equal Treatment Benchbook.
TAG gives detailed guidance with accompanying toolkits for facilitating participation of vulnerable persons in legal proceedings:
‘TAG’s main aims are to promote the maintenance of the highest ethical and professional standards in the questioning of people who are vulnerable in justice settings and to provide practitioners with evidence-based guidance and support in the form of toolkits.’
TAG has compiled 20 toolkits, which range from identifying witness vulnerability (Toolkit 10) to supporting participation in courts and tribunals (Toolkit 19). TAG has also compiled guidance on ‘ground rules’ hearings and an essential questions checklist.
In many coroner's areas, there are resources available to help guide and support witnesses and bereaved families through the inquest, including the Coroners' Courts Support Service, witness support teams and bereavement nurses.
Despite these resources, there is anecdotal evidence that reference to them by both practitioners and coroners is not consistent.
Use of these resources is a highly practical means of ensuring that the court is discharging its own obligations.
More fundamentally, increasing awareness and deployment of these resources will ensure the attainment and demonstration of the Competences.
Coroners are highly experienced at reminding Interested Persons of the nature of coronial proceedings. This may take the form of written guidance within the court building, or, by way of explanation and introduction at the beginning of an inquest hearing.
The use of the Competences and the resources set out in the preceding paragraphs will provide participants with assurance and enable those most in need of the court’s assistance with the opportunity to identify concerns, raise vulnerabilities or seek adjustments.
Advocates who do not follow this guidance at an inquest risk the criticism of the coroner and referral to their regulator.
In February 2023, the BSB published its response to the Legal Service Board’s policy statement on ongoing competence, including an action plan which made clear the responsibility of the BSB as the front-line regulator to set and maintain standards of practice of barristers and its targeted areas of regulation including practice in the Coroner’s Court. In this, the importance of the coronial Competences guidance was repeated.
The coronial system performs a vital function to investigate the circumstances of deaths and how similar deaths can be prevented in the future.
It is to the benefit of everyone involved in an inquest, not least bereaved families, that an inquest therefore remains a focused search for the truth. It must not be an adversarial battle between Interested Persons.
Adherence to the Competences will help to ensure that witnesses achieve best evidence, that the four statutory questions are answered and that the needs of bereaved families to understand what happened to their loved one are at the heart of the inquest process.
It will be well known by all those that are regularly involved in inquests that, despite the difficult evidence which an inquest will need to explore, it is vital that it remains an inquisitorial process.
The recent case of R v Morahan [2021] EWHC 1603 (Admin) made clear that an inquest remains an inquisitorial, summary process. The scope of the coronial investigation must be kept within proper bounds, focused on the relevant and causative evidence to address the statutory questions.
Too often, however, an inquest may become adversarial, or the vulnerable needs of a witness are overlooked. There is an ever-present risk that a witness will be re-traumatised by the events they are asked to remember. Similarly, there will be people who – despite the limitations on the court’s jurisdiction – wish to apportion blame, or otherwise use the proceedings as a prelude for subsequent adversarial litigation.
This prompted a review of competences by the regulators for those practising in the Coroners’ Courts, under the leadership of the Chief Coroner, and production of a suite of resources for practitioners.
Yet, there remains limited awareness of the standards required in the competency framework and the accompanying resources.
In September 2021, Competences for Lawyers Practising in the Coroners’ Courts was jointly published by the Bar Standards Board (BSB), the Solicitors Regulation Authority (SRA) and Chartered Institute for Legal Executives (CILEx) Regulation.
The guide sets out the standards expected of advocates. Breaches may lead to a regulator taking action against a legal professional. In the foreword to the Competences, the Chief Coroner of England and Wales, His Honour Judge Thomas Teague KC, observed:
‘All lawyers who practise in coroners’ courts should appreciate – and should explain to their clients – that an inquest is not a means of apportioning blame, let alone a form of litigation, but a sharply focused and necessarily limited investigation into four questions: who the deceased was, and when, where and by what means the deceased came by his or her death. Against that background, the bereaved must always remain at the heart of the process.’
The guide details four competences:
The collective purpose of the four competences is to ensure collaboration with the coroner to facilitate the exercise of the court’s jurisdiction. This is redolent of the duties of cooperation found in the procedural rules for other tribunals.
To this end, competency 1.2 declares:
‘You should: …
1.2 Assist the coroner in the disclosure of all facts relevant to the inquisitorial process…’
This duty of assistance is the core obligation of these competencies; it highlights the central importance of the inquest being an inquisitorial search for the truth. It is supported by a corresponding duties of 'awareness' and 'response'.
The former is to be found in competency 2:
‘You should:
2.1 Recognise the central role of bereaved families and have knowledge and understanding of their vulnerability during an inquest.
2.2 Have knowledge and understanding of the potential vulnerability of interested persons and witnesses during an inquest.
2.3 Adapt the delivery of your service to the needs of such vulnerable people.
2.4 Make sure that those being represented understand the jurisdiction and procedure of the Coroner’s Court and manage their expectations sensitively.’
The practical demonstration of this awareness and response is detailed in competency 3:
‘You should:
3.1 Speak clearly and concisely, using plain language, especially when communicating with those who are vulnerable.
3.2 Recognise that an inquest is an inquisitorial and fact-finding exercise, and your style of questioning must be appropriate. In particular, recognise that whilst firm and robust questioning may sometimes be necessary, an aggressive and hostile style of questioning is not appropriate.
3.3 Adapt your style of advocacy and personal interactions to the circumstances and potential vulnerability of those participating in the inquest, demonstrating empathy as appropriate.
3.4 Restrict questions to those that are relevant to the purposes of the inquest.
3.5 Be respectful and professional at all times, both inside and outside the courtroom.’
The BSB, SRA and CILEx Regulation oversee compliance with these standards. Plainly, there is public interest that they do so. However, there remains limited awareness among practitioners of the competency framework.
Alongside the competences, Resources for those practising in the Coroners' Courts have been published to support practitioners' learning and development needs and meet the challenges of practising in inquests.
The resources were developed in collaboration with the SRA and CILEx Regulation, and with the assistance of the Chief Coroner and his office, the Deputy Chief Coroner, the Ministry of Justice, practitioners (barristers, solicitors and legal executives), coroners, bereaved people who have been involved in inquests in addition to the organisations that provide help and support, such as the Coroners’ Court Support Service and INQUEST.
For some time, these resources have included video presentations from the Chief Coroner, the SRA, CILeX, and others, and link to other important materials including the toolkits on the Advocate’s Gateway (TAG) and the relevant sections of the Equal Treatment Benchbook.
TAG gives detailed guidance with accompanying toolkits for facilitating participation of vulnerable persons in legal proceedings:
‘TAG’s main aims are to promote the maintenance of the highest ethical and professional standards in the questioning of people who are vulnerable in justice settings and to provide practitioners with evidence-based guidance and support in the form of toolkits.’
TAG has compiled 20 toolkits, which range from identifying witness vulnerability (Toolkit 10) to supporting participation in courts and tribunals (Toolkit 19). TAG has also compiled guidance on ‘ground rules’ hearings and an essential questions checklist.
In many coroner's areas, there are resources available to help guide and support witnesses and bereaved families through the inquest, including the Coroners' Courts Support Service, witness support teams and bereavement nurses.
Despite these resources, there is anecdotal evidence that reference to them by both practitioners and coroners is not consistent.
Use of these resources is a highly practical means of ensuring that the court is discharging its own obligations.
More fundamentally, increasing awareness and deployment of these resources will ensure the attainment and demonstration of the Competences.
Coroners are highly experienced at reminding Interested Persons of the nature of coronial proceedings. This may take the form of written guidance within the court building, or, by way of explanation and introduction at the beginning of an inquest hearing.
The use of the Competences and the resources set out in the preceding paragraphs will provide participants with assurance and enable those most in need of the court’s assistance with the opportunity to identify concerns, raise vulnerabilities or seek adjustments.
Advocates who do not follow this guidance at an inquest risk the criticism of the coroner and referral to their regulator.
In February 2023, the BSB published its response to the Legal Service Board’s policy statement on ongoing competence, including an action plan which made clear the responsibility of the BSB as the front-line regulator to set and maintain standards of practice of barristers and its targeted areas of regulation including practice in the Coroner’s Court. In this, the importance of the coronial Competences guidance was repeated.
The coronial system performs a vital function to investigate the circumstances of deaths and how similar deaths can be prevented in the future.
It is to the benefit of everyone involved in an inquest, not least bereaved families, that an inquest therefore remains a focused search for the truth. It must not be an adversarial battle between Interested Persons.
Adherence to the Competences will help to ensure that witnesses achieve best evidence, that the four statutory questions are answered and that the needs of bereaved families to understand what happened to their loved one are at the heart of the inquest process.
Two years on, there remains limited awareness of the standards required for those practising in the Coroners' Courts and the accompanying resources, say Tim Suter and Sophie Cartwright KC
The beginning of the legal year offers the opportunity for a renewed commitment to justice and the rule of law both at home and abroad
By Louise Crush of Westgate Wealth Management sets out the key steps to your dream property
A centre of excellence for youth justice, the Youth Justice Legal Centre provides specialist training, an advice line and a membership programme
By Kem Kemal of Henry Dannell
By Ashley Friday of AlphaBiolabs
Providing bespoke mortgage and protection solutions for barristers
Joanna Hardy-Susskind speaks to those walking away from the criminal Bar
Tom Cosgrove KC looks at the government’s radical planning reform and the opportunities and challenges ahead for practitioners
From a traumatic formative education to exceptional criminal silk – Laurie-Anne Power KC talks about her path to the Bar, pursuit of equality and speaking out against discrimination (not just during Black History Month)
James Onalaja concludes his two-part opinion series
Yasmin Ilhan explains the Law Commission’s proposals for a quicker, easier and more effective contempt of court regime
