3.1 How an individual comes to meet their death

Current coronial practice in cases of DAPC is set out cogently by Matthews (Reference Matthews2014) in the thirteenth edition of Jervis on the Office and Duties of Coroners, the primary text used by coroners in daily practice. The key change brought about by Article 2 of the ECHR is the definition of ‘how an individual came to meet their death’. Prior to the enactment of the HRA 1998, this was considered to be ‘by what means' they came to meet their death, whereas it is now interpreted as ‘in what circumstances' (Matthews, Reference Matthews2014, p. 123). The immediate effect of this on coronial practice was to broaden the scope of the inquest to consider a wider range of issues that might have led to the death of an individual. These issues tend to relate to organisational actions or omissions as distinct from individual acts or omissions (Baker, Reference Baker2015).

Matthews (Reference Matthews2014, pp. 506–508) notes that Article 2 imposes three obligations on the state. First, that it has a ‘positive obligation to protect the right of life by law’. This breaks down to two further categories: one being a ‘general and systemic duty’ in the form of laws and official policies enacted by state agencies that reflect the requirements of the Act; the other being ‘an operational duty’. Regarding police and cases of DAPC the operational duty is manifest as ‘the duty … to take reasonable steps to prevent the risk [of death] materialising’. A corollary of this is the necessity to demonstrate that policies and training are in place that reflect obligations imposed by Article 2. The second obligation is that the state should ‘refrain from intentionally and unlawfully taking life’. Third, Article 2 embodies a procedural obligation that requires the state to investigate such deaths in the light of the two principles outlined above, hence the more rigorous approach adopted by Article 2 inquests.

Article 2 inquests are typically heard before juries and have a wider scope of investigation than any other type (Dorries, Reference Dorries2004). Consequently, they are more complex, often more contested and more likely to be subject to appeal via judicial review (Matthews, Reference Matthews2011). One change that reflects the requirements of open justice is that the ECHR demands the state is transparent in disclosing documents and making witnesses available to whichever court hears such cases (Wadham, Reference Wadham2004). The significance of Article 2 of the ECHR has been to impose an ‘evidential burden’ upon the state in terms of how it investigates these types of cases. It requires the state to provide an explanation of such a death that is satisfactory and convincing. However, there is apparently no explicit direction stating how coroners should undertake Article 2 inquests (Thomas et al., Reference Thomas, Straw and Friedman2008). Evidently, this might be exacerbated by the fact that despite the introduction of a Chief Coroner: ‘Coroners are still largely a local and not national service’ (Matthews, Reference Matthews2014, p. vii). Whilst there may be a lack of direction from government and legislators, it appears that Article 2 of the ECHR is effecting change in the coronial system by way of precedent.

3.2 Narrative verdicts

A similarly unanticipated development since the advent of Article 2 inquests is the increasing use of what are termed ‘narrative verdicts'. These replace the typically used short-form verdictsFootnote ⁷ and set out a narrative description of key ‘facts found’ in the inquest. Narrative verdicts do not have a standardised format and can vary in length from three sentences to three pages (Matthews, Reference Matthews2011). Numerous judgments have been set forth from judges in the process of judicial reviews noting the relevance and appropriateness of narrative verdicts in fulfilling the state's response to Article 2 of the ECHR. Most notably, in the landmark 2002 case of Middleton, the House of Lords stated that: ‘To meet the procedural requirement of article 2 an inquest ought ordinarily to culminate in an expression, however brief, of the jury's conclusion on the disputed factual issues at the heart of the case’ (R v. Coroner for the Western District of Somerset (Respondent) and another (Appellant) ex parte Middleton (FC) (Respondent) HL 11 March 2004).

As coronial practice is shaped partly by statute and partly by precedent, it is important to note the key case that established precedent for narrative verdicts. Colin Middleton died in Bristol prison in 1999. The first inquest into his death was quashed due to an insufficiently rigorous inquiry. In the second, the coroner did not grant the jury the option of ‘neglect’ as a verdict. The jury chose instead to record their findings by hand in a narrative format, stating (in part) that the Prison Service had failed in its duty of care to the deceased (Widdicombe, Reference Widdicombe and McDougall2012). Dorries (Reference Dorries2004) notes that narrative verdicts function as a statement of findings rather than a label, as is the case in short-form verdicts which are typically used in the coronial system. Indeed, in 2013, the Chief Coroner stated that the term ‘verdict’ was to be replaced with ‘determination’, albeit that it still tends to be reported as a verdict by the media (Matthews, Reference Matthews2014). Coroners typically now refer to it variously as a ‘conclusion’, a ‘determination’ or as ‘findings' (Chief Coroner, 2014). Table 1 illustrates the increasing use of narrative verdicts in inquests in England and Wales.Footnote ⁸ If two purposes of an inquest are to find facts in public and attempt to learn lessons that prevent future deaths, then a narrative verdict dovetails with these principles in that they record factual details of that death. Luce (Reference Luce2003) supported the use of these verdicts as a way of satisfying public interest and believed that the narrative should involve systemic issues if thought to be relevant to the specific case. However, the Office for National Statistics (ONS) have cautioned that the increasing use of narrative verdicts could create ambiguity in the statistical reporting of deaths, as they occur under the umbrella category of ‘other deaths' (see Carroll, Hawton, Kapur, Bennewith and Gunnell, Reference Carroll, Hawton, Kapur, Bennewith and Gunnell2012; Hill and Cook, Reference Hill and Cook2011). The exercise of narrative verdicts as a state response to the ECHR illustrates a number of themes apparent in the coronial system. First, their use in principle is not codified, but is consistent with the discretion afforded the coroner as an autonomous judicial officer, and the jury, as was demonstrated in the landmark Middleton case. Second, their use in practice differs depending on coronial areas, underlining the essentially regional nature of the coronial system. Third, their content is unclear at a central level as they are grouped under the heading of ‘other verdict’ – this means that their meaning is ambiguous in terms of statistical representation, and their content is effectively unknown to those who have not had direct access to the content of each narrative verdict (Baker, Reference Baker2016).

Figure 1

Narrative verdicts recorded 2000–2014 (Ministry of Justice, 2014).

The narrative verdict enables juries to consider circumstantial factors if they are able to demonstrate a ‘sensible direct relationship’ between those factors and the death. If systemic weaknesses are noted, then it opens up the possibility that under Article 2 the preventability of death is focused upon as distinct from issues purely relating to the cause of death (Matthews, Reference Matthews2002). Thomas et al. (Reference Thomas, Straw and Friedman2008) believe this could lead to a process termed ‘accountable learning’. This envisages organisations making changes to their policies, procedures and practice based on narrative verdicts and coroners' reports. In essence, this would seek to minimise future loss of life and consequently promote an environment whereby the right to life was actively enabled. The issue of lessons not being learned in cases of DAPC is a persistent theme in literature on this topic (see, for example, Fulton, Reference Fulton2008; JCHR, 2004). Whether narrative verdicts might enable the learning of lessons is questionable due to the lack of central oversight of the coronial system. This means that there is no central collation of these verdicts, let alone any analysis of them (Goldson, Reference Goldson2006). To date, the subject of narrative verdicts has received little attention from academic writers. Exceptions are Scraton (Reference Scraton2006), who examined their use in holding the prison system to account for deaths in custody; Carroll et al. (Reference Carroll, Hawton, Kapur, Bennewith and Gunnell2012) and Hill and Cook (Reference Hill and Cook2011), who focused on the effect of narrative verdicts on general mortality data; McIntosh (Reference Mcintosh2012), who examined narrative verdicts in relation to providing accountability to children's next of kin; and Pilkington, Bird, Gray, Towner, Weld and McKibben (Reference Pilkington, Bird, Gray, Towner, Weld and Mckibben2014), who considered the possible use of narrative verdicts to learn lessons in the aftermath of road traffic accidents. It appears that narrative verdicts are an underresearched area with regards to open justice and cases of DAPC.

3.3 Coroners' reports

In addition to the use of Article 2 inquests and narrative verdicts, the third major development under the requirements of Article 2 of the ECHR is the use of the coroner's report to prevent future deaths.Footnote ⁹ Coroners have long reserved the right to report to relevant organisations post inquest with recommendations suggesting potential changes in training, practice or issues of a technical nature which might reduce future fatalities (Dorries, Reference Dorries2004). This facility exists within Coroners Rules and was discretionary until July 2013 except in the case of a death on the rail system, in which case the coroner was statutorily bound to report to the relevant agency (Levine, Reference Levine1999). Directions from the Chief Coroner in 2013 indicated that the requirements of Article 2 of the ECHR made such a report mandatory if coroners believed it may prevent future deaths. In Davis et al.'s (Reference Davis, Lindsey, Seabourne and Griffiths-Baker2002) research, coroners felt this function to be a key aspect of their role when promoting public safety and preventing future fatalities. This should be tempered by Luce's findings (Reference Luce2003, p. 93), in which he noted that coroners' reports were used in less than two per cent of inquests. It is also important to note that although the coroners may write to an agency, that agency is under no obligation to act on their recommendations, as is also the case in Australia and New Zealand (see, respectively, Corrin and Douglas, Reference Corrin and Douglas2008; Mok, Reference Mok2014). In England and Wales there is an expectation that agencies who receive such a report should reply to the coroner within fifty-six days, although there is no sanction should such a reply not be forthcoming.

From October 2009 the Ministry of Justice began to compile six-monthly statistical bulletins dealing with coroners' reports, the intention being to make them publicly accessible in a nod to more transparent coronial processes (Ministry of Justice, 2010). The first bulletin noted that the majority of these reports were sent to National Health Service (NHS) hospitals. In research into NHS trusts that had received a coroner's report, Claridge, Cook and Hale (Reference Claridge, Cook and Hale2008) found that whilst the principles underpinning these reports were well intentioned, their usefulness in reality was equivocal. Many of the senior hospital staff who received such reports were not aware what the role of a coroner was, or how these reports could be shared or disseminated to promulgate better practice resulting in a reduction of future fatalities. Furthermore, Luce (Reference Luce2003) commented on the divergent reporting practices used. One coroner used the report sixty times in one year, whilst one third of coroners in Luce's sample had not used it at all. From 2013 the Chief Coroner undertook to compile an annual report providing an overview of the usage of coroners' reports. At the time of writing, this has not yet come to pass. The last available bulletin from the Ministry of Justice on these reports dates from June 2013, and it is not clear when or if reports for the two years to 2015 will be made public.

The two key outputs of the Article 2 inquest are both affected by the regional nature of the coronial system in England and Wales. With ninety-nine coronial areas and little oversight or collation of data at a national level, the effectiveness of these outputs in terms of learning lessons that might prevent future deaths must be questioned. In Australia, where the coronial system is organised on a state basis, there is a national overview of outputs from the coronial process in the form of the National Coroners Information System (NCIS) (Dodds, Robinson, Daking and Paul, Reference Dodds, Robinson, Daking and Paul2014). It is also notable that whilst Article 2 of the ECHR affects all signatories, the only two jurisdictions which use coronial systems to fulfil its obligations are Ireland and the UK. Thus it might be said that not only is the coronial system regionalised and discretionary, but that the signatories to the ECHR fulfil their obligations to Article 2 cases in different ways using different processes. Clearly, this means that the response of signatories to the ECHR at a national level to investigating and reporting on cases of DAPC is not uniform and occurs at the discretion of the national state. Finally, given that this paper considers the socio-legal and socio-political aspects of coronial practice and human rights, it is necessary to note that the current government in the UK came to power in 2015 with a manifesto that included a stated intention to quit the ECHR and introduce instead a ‘British bill of rights' (Stone, Reference Stone2015). Thus, as ever, future developments in coronial practice remain difficult to predict. To some extent, future developments are mediated by institutional structures in the coronial system, and the paper now turns to examine how these structures might affect the changes to coronial practice wrought by Article 2 of the ECHR.

4.1 Organisational characteristics

The coronial system is best imagined not as a national service but as a collection of local services (Chief Coroner, 2014). There are currently ninety-nine coronial areas in England and Wales (Ministry of Justice, 2014). This number has decreased markedly since the 1980s, largely due to a desire by local authorities to reduce costs as coroners retire from their positions (Matthews, Reference Matthews2014). The number of coronial areas poses a challenge in terms of learning lessons that may prevent future deaths in that the coronial system has long been noted as lacking central oversight (see, for example, Shaw and Coles, Reference Shaw and Coles2007; Smith, Reference Smith2003). This highly regionalised demarcation can lead to coroners becoming protective of their autonomy (Davis et al., Reference Davis, Lindsey, Seabourne and Griffiths-Baker2002). Coronial areas are not necessarily contiguous with the local government authority, the NHS authority or the area of police authority. The organisation of coronial districts appears to be without regard for specific requirements such as case-load or capability (Luce, Reference Luce2003). The place where the deceased meets their death dictates which coroner the death is reported to (Matthews, Reference Matthews2011). Geographical jurisdiction may also dictate the type of knowledge and expertise that the coroner possesses (Thomas et al., Reference Thomas, Straw and Friedman2008).

Coroners in urban areas typically have a greater volume of cases than those in rural areas. A coroner may also have an atypical preponderance of secure facilities within their regional jurisdiction. This could result in them performing a greater proportion of inquests into deaths in these facilities than coroners whose geographical boundaries do not include such facilities (Shaw and Coles, Reference Shaw and Coles2007). Conversely, it may be that a coroner seldom encounters such cases and is consequently less well prepared for an inquest into a custody death. This can result in cases where the coroner is unaware of changes in statute or policy and thus needs to adjourn the inquest while s/he brings her/himself up to date with these developments (Thomas et al., Reference Thomas, Straw and Friedman2008). It follows that the ability of the coroner to be able to conduct a rigorous inquest into a case of DAPC may have more to do with geographical jurisdiction and case-load than experience, training or statutory requirements (see Matthews, Reference Matthews2014). Thus, while Article 2 inquests are considered to be more rigorous and wide-ranging than was previously the case, it does not necessarily mean that the coroner is adept at overseeing such an inquest. This underlines the tension between the obligations imposed by Article 2 of the ECHR and their practical application in the coronial system.

4.2 Role and function: themes in coronial practice

The practitioner literature available on coroners notes that the role and function of the coroner is ambiguous. It suggests that the form and function of the coroner's inquest is either misunderstood, ill-defined, ambiguous, discretionary or any combination thereof (see, for example, Smith, Reference Smith2003; Davis et al., Reference Davis, Lindsey, Seabourne and Griffiths-Baker2002). In the most recent fundamental review of the coronial system, Luce (Reference Luce2003) stated unequivocally that when imagining a reformed service it would be helpful to consider overtly what it can do in terms of aims and purpose, particularly regarding what other services and/or organisations cannot. It appears that rather than the government or legislators shaping this function, it is the requirements of Article 2 of the ECHR that have determined what the coronial system might do.

Discretion is a recurring theme within the key practitioner texts (see, for example, Levine, Reference Levine1999; Thomas et al., Reference Thomas, Straw and Friedman2008; Dorries, Reference Dorries2004; Matthews, Reference Matthews2002). In Luce's (Reference Luce2003, p. 71) review, he noted: ‘The phrase we have heard more than any other during the Review is “the coroner is a law unto himself”.’ There is insufficient space here to detail every example of discretion, but the following are noted as being relevant to the issue of DAPC. At the most fundamental level, the coroner has discretion over when and where the inquest is held; over what evidence is presented; and over which witnesses should attend and in what order. The coroner has discretion over who has access to documents pre and post inquest – the specific term being ‘any properly interested person’. Perhaps unsurprisingly, those individuals who may or may not match this criterion are subject to the coroner's discretion (Dorries, Reference Dorries2004).

The issue of discretion can be seen in the way in which narrative verdicts are recorded in cases of DAPC. These vary considerably, depending on the discretion of the particular jury: some being recorded as questionnaires; others as free-form handwritten narratives; some being three lines long and others more than three pages (Baker, Reference Baker2015). Thus although Article 2 of the ECHR has produced a change in practice through the introduction of narrative verdicts, this has been mediated by the institutional structures present in the coronial system. As Scraton and Chadwick (Reference Scraton and Chadwick1987) note, Coroners Rules reflect the discretionary nature of proceedings in that they effectively represent a set of guidelines as distinct from a ‘hard and fast’ framework. The 1971 Brodrick Report (the last major report on the coronial system prior to Luce) was emphatic in stating that: ‘The law is flexible, but only because it is archaic and exiguous. The coroner can determine his own “style” and method because he is independent and largely beyond challenge’ (cited in Luce, Reference Luce2003, p. 100).

Smith (Reference Smith2003) and Davis et al. (Reference Davis, Lindsey, Seabourne and Griffiths-Baker2002) note that there are significant differences of interpretation by coroners at inquests, with factors as diverse as family involvement, post-mortem procedure, verdict framing and jury direction all having demonstrably divergent interpretations dependent on coronial jurisdiction. Smith (Reference Smith2003), Davis et al. (Reference Davis, Lindsey, Seabourne and Griffiths-Baker2002) and Luce (Reference Luce2003) note that these differences are the result of structural issues as opposed to individual idiosyncrasies. Luce (Reference Luce2003, p. 72) believes such structural issues indicate a lack of consistency in training and appointment, an ambiguous procedural framework and a general ‘lack of clear objectives'. To these, Smith (Reference Smith2003, p. 57) adds a lack of leadership and regulation, noting that when compared to the rest of the judiciary, coroners are ‘to a very large extent … left to their own devices'. Davis et al. (Reference Davis, Lindsey, Seabourne and Griffiths-Baker2002, p. 78) acknowledge that there will always be differences in styles between coroners, ‘but the present level of idiosyncrasy goes beyond this, suggesting that there is not always a consensus even with regards to the purpose of an inquest’.

Structural idiosyncrasy affects how the effects of Article 2 of the ECHR are mediated. Whilst Article 2 inquests are more rigorous and wide-ranging than was previously the case, it must be noted that they can only occur in the light of the comments made above regarding consensus over the purpose of an inquest. With ninety-nine coroner areas, it seems unproblematic to assert that the terms ‘rigorous' and ‘wide-ranging’ are relative in terms of how an Article 2 inquest is undertaken. Similarly, the use of coroners' reports, which are now held to be mandatory in cases of DAPC in the coronial system, needs to be considered in this light.

The coronial system, then, is regionalised, has ambiguous roles and functions, and is notable for its use of discretion. These characteristics might also be viewed favourably when considering the role and function of the coroner in investigating and reporting on cases of DAPC. The regionalised nature of the system might reflect both the relative autonomy of coroners and their being grounded in local communities, in a way that other elements of the justice system may not be. Indeed, it could be argued that the ambiguity of role and function and the large degree of discretion may enable coroners and juries to examine complex cases with greater rigour as a result of not being hidebound by statutory structures. In this sense, it might be argued that the system meets the requirements of open justice, transparency and legitimacy reflected in the obligations imposed by Article 2 of the ECHR in a way that, for example, the IPCC as a more structured and rigid organisation does not, as was noted earlier in this paper (see, for example, Baker, Reference Baker2015; IPCC, 2014; Casale et al., Reference Casale, Corfe and Lewis2013).

4.3 Reform and stasis

The most recent attempts to reform the coronial system illustrate its ‘forgotten’ nature. In the aftermath of the Luce Report (Reference Luce2003, p. 16), which deemed the coronial system ‘unfit for purpose’, there was protracted debate in government and parliament about how a new bill might re-shape the coronial system. The re-shaping was driven by numerous official reviews, but also by the demands of the HRA 1998 and its requirement to meet the obligations of the ECHR (see, for example, JCHR, 2004). The debate about how the coronial system in England and Wales would look in the twenty-first century eventually produced the Coroners and Justice Act, initially passed in 2009 but not enacted until July 2013.

The coronial system is marked by significant gaps between reform being proposed and enacted. Ten years passed from the Luce (Reference Luce2003) review to the enactment in 2013 of the 2009 Coroners and Justice Act; similarly, the Wright (1936) review was discarded for seventeen years until it eventually formed the basis of the 1953 Coroners Rules (Levine, Reference Levine1999); and the Brodrick (1971) review was largely ignored, as was noted in the summary of the Shipman review more than thirty years later (Smith, Reference Smith2003). In the four years between the Coroners and Justice Act being passed and enacted, aspects of the 2009 Act were repealed, for example the right of appeal. It might also be noted that the 2009 Act created an entirely new function of death reporting which was intended to work both adjacent and complementary to the coronial system. The intention was that a National Medical Examiner would oversee a network of Medical Examiners working as medical experts alongside, but independent of, coroners, who were now required to be practising lawyers (Chief Coroner's Office, 2013). This system has not yet been implemented, and there is no indication as to when this might occur (Matthews, Reference Matthews2014).

My point in highlighting the issue of reform and stasis is to draw attention to a number of relevant issues pertinent to the present discussion. First, a trend of governmental desire to reform a non-centralised system in which ambiguity of purpose is well established. Second, a similar tendency of government to seemingly discard, ignore or significantly circumscribe recommendations produced by official reviews. Third, this indication that reform of the system in the last hundred years has been piecemeal. Although reform of the coronial system has often been on the governmental agenda, it might be argued that precedents resulting from Article 2 of the ECHR have effected more substantive change in coroners' practices. The key change that emerged, after much parliamentary debate, from the 2009 Act was the creation of the role of Chief Coroner for England and Wales, a position taken up in September 2012 by Judge Peter Thornton (Matthews, Reference Matthews2014, p. 31):

The Chief Coroner's first major act was to draft a set of directions to all coroners in England and Wales about how the 2009 Coroners and Justice Act should be put into practice; this was published in late 2013 (Chief Coroner's Office, 2013). Broadly stated, it set out a series of expected standards and requirements of coroners. As such, the directions may be seen to be an updated and consolidated version of Coroners Rules. Of particular relevance is that the Chief Coroner must produce an annual report on the coronial system and send this to the Lord Chancellor (Matthews, Reference Matthews2014). This arguably represents the first time a national report has been compiled about the coronial system and therefore indicates an attempt at a more ‘national’ type of system. It is, however, notable that the Chief Coroner does not have a deputy, although the provision of one is enabled through the 2009 Coroners and Justice Act. Matthews (Reference Matthews2014, p. 22) further notes that there is no obligation in the Act for the role of Chief Coroner to be filled, rather that the Lord Chief Justice ‘may’ appoint a Chief Coroner. At the time of writing it is too early to comment on how the Chief Coroner may affect the coronial system, but there might be concern over the relatively limited resources at his disposal to enforce Coroners Rules and consolidate a national coronial system.