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I. Introduction: an exclusive concern
In April 2016, two very different but significant inquests on opposite sides of the world were in their final stages. In Sydney, Australia, the inquest into the deaths resulting from the seventeen-hour siege at the Lindt café in December 2014 (the Sydney Siege inquest) was undergoing its final segment of hearings before State Coroner Michael Barnes, after beginning in January 2015. The inquest scrutinised the siege and events around it, including key questions such as why the gunman was on bail, what the authorities knew about him, and police decision-making in response to the siege. Meanwhile, in Warrington, Cheshire, in the northwest of England, following a two-year hearing beginning in March 2014, the jury emerged after two weeks of deliberation to deliver the determination of ‘unlawful killing’ in the Hillsborough Inquests before the Right Honourable Sir John Goldring, sitting as Assistant Coroner for South Yorkshire (East) and West Yorkshire (West).Footnote 3 Both inquests were landmark coronial events: the Sydney Siege inquest held uniquely segmented hearings dealing with discrete issues, after commencing just six weeks after the December 2014 siege – a promptness unheard of in Australian coronial history. The Hillsborough inquests represent the longest coronial hearing in English history, heard in the largest purpose-built courtroom in England, and on an unprecedented scale.
The Hillsborough Inquests are the second inquests to investigate the deaths of ninety-six people who died as a result of the fatal crush at the Hillsborough Stadium, Sheffield, England, on 15 April 1989, when they were attending the Football Association Cup Semi-Final between Liverpool and Nottingham Forest. In the case sequelae, the original inquests (1990–1991) were part of a constellation of numerous official investigations, reviews and inquiries into the disaster. In April 2009, the then Secretary for Culture, Media and Sport, Andy Burnham, and MP Maria Eagle, advocated for the full public disclosure of information about Hillsborough, publicly supporting the Hillsborough Family Support Group's twenty-year campaign.Footnote 4 In 2010, the United Kingdom (UK) Home Secretary appointed the Hillsborough Independent Panel to oversee and manage the public disclosure of documents relating to the disaster, to consult with the Hillsborough families, and to work on archiving the documents. When the Panel released its report in 2012, it remarked that, despite an eleven-year period of official scrutiny, ‘many bereaved families and survivors considered that the true context, circumstances and aftermath of Hillsborough had not been adequately made public’ (Hillsborough Independent Panel, 2012, p. 4). Correspondingly, the Panel's report revealed a catalogue of official failings, including police alteration of statements and the inadequacy of the inquest process, simultaneously razing the official ‘truth’ of Hillsborough, which had blamed the Liverpool fans.
Following the Panel's report, the Hillsborough families called for the original inquest verdicts of ‘accidental death’ to be overturned, and for fresh inquests to be held.Footnote 5 The emphasis on the failure of the original inquests to declare the truth and deliver justice was strong in the wake of the Independent Panel's report. Referring to the Panel's findings in a statement to the House of Commons, it was the ‘significant doubt over the adequacy of the original inquest’ that Britain's Prime Minister David Cameron himself identified as perhaps the most significant finding of all.Footnote 6 Labour MP Andy Burnham spotlighted the inquest process, both for its resounding failure to net justice and its capacity to ultimately deliver it. He said, ‘I will never be able to accept or allow a verdict of accidental death to remain on the public record. We need a new inquest, a new verdict and only then can we say we have put right one of the greatest injustices in our country's history in the 20th century.’Footnote 7 In the wake of the Independent Panel's report, commentators reviewed the potential legal options to redress injustice, including new inquests, public inquiries or criminal proceedings. Notwithstanding the flawed process of the first Hillsborough inquests, legal commentator Joshua Rozenberg recognised that ‘an inquest verdict, as a finding of the court, may carry greater weight with the relatives of those who died than the findings of another inquiry’.Footnote 8
On 19 December 2012, the original Hillsborough inquests, at that point the longest in British legal history, were judged a failure when the High Court quashed the original inquisitions, allowing new inquests to be held.Footnote 9 The new Hillsborough Inquests opened on 31 March 2014. That the families of the Hillsborough victims wanted the original verdicts overturned, as the ‘number one priority’,Footnote 10 and new inquests to be held, illustrates the signal importance of this aspect of the Hillsborough record. The perceived significance of the coroner's inquest as a process for setting the record straight and delivering justice cannot be overstated. That moment came when, on 26 April 2016, the Hillsborough Inquests jury answered fourteen questions relating to the cause and circumstances of the deaths of the ninety-six people who died. In addition to concluding that the ninety-six Liverpool fans who died were unlawfully killed, the jury also concluded that the behaviour of football supporters did not contribute to the dangerous conditions, rejecting police claims to the contrary. Together with determinations about stadium defects, licensing, oversight and management, the jury delivered a damning indictment of the police, concluding that there were errors and omissions in respect of the police planning, preparation for, and policing of the match, and the police and ambulance service responses to the disaster. Ostensibly, with these determinations, after twenty-seven years, the record has been corrected to achieve this crucial aspect of ‘justice for the 96’. Yet the experience of the Hillsborough families also highlights the vexing nature of the coronial jurisdiction. While inquests are public fact-finding exercises directed towards ascertaining the identity of the deceased, the place, and the cause and circumstances of death – often referred to as the ‘who, where, what and how’ – they can, and do, realise much more than these ‘facts’.
Taken at their narrowest achievement, ‘they can productively contribute to the bereavement process of families or friends of the deceased, and at their widest they can contribute to public health and safety and the prevention of avoidable deaths. Additionally, inquests can allay suspicion, safeguard public scrutiny of contentious deaths and ensure justice is seen to be done’ (Scott Bray, Reference Scott Bray2013, p. 449). But this potential is tempered by the reality that inquests can also be arenas of deep disappointment and distress, exacting damage instead of justice (see Scraton and Chadwick, Reference Scraton and Chadwick1987).Footnote 11 This tension explains why, for some commentators, ‘inquests have long been a poor medium for revealing important information surrounding controversial deaths’,Footnote 12 while others assert that:
‘imperfect and variable as the coroner system is in helping relatives to understand the events leading up to the death of a family member, it is, in many cases, the only mechanism which even attempts to do this. There are other forums in which a death may be discussed or investigated, but … [i]t is only in the inquest that the deceased is the focus of proceedings, rather than being a shadowy figure in somebody else's story.’ (Davis, Lindsey, Seabourne and Griffiths-Baker, Reference Davis, Lindsey, Seabourne and Griffiths-Baker2002, p. 77)
Put another way, Wells writes, ‘death features in the work of civil and criminal courts as well as often being the motivation for the establishment of a public inquiry. But the inquest is the only formal state tribunal whose exclusive concern is death’ (Reference Wells, Lee and Morgan1996, p. 213). This paper affirms the importance of an inquest's ‘exclusive concern’ for death. Given the preventative trajectory of the coronial jurisdiction, there is much to be gained from interrogating – and so acknowledging – deaths, so as to hopefully avoid others. Taking key coronial developments in the UK and Australia in recent years as its starting point, the paper spotlights a jurisdiction undergoing immense legal and policy reform to illustrate why coronial law and practice deserves further scholarly consideration. It begins by tracing the contentious landscape of UK coronial law reform that resonated internationally. It thereafter examines key controversies that refocused attention on the value of the jurisdiction, before a final discussion of contemporary coronial challenges, including publicity, human rights and death prevention.
II. The landscape of reform
Death investigation and coronial practices have undergone significant international social, political and legal scrutiny in recent years. A wave of coronial reform has occurred across jurisdictions including the UK, Australia, Canada and New Zealand, with a concomitant focus on the adequacy of death investigation law and policy.Footnote 13 This reform has, in part, stemmed from troubled histories around post-mortem practices, beginning with the emergence of human tissue and organ controversies in the UK in the late 1990s and early 2000s. The resulting inquiries, including the Bristol Royal Infirmary Inquiry,Footnote 14 the Royal Liverpool Children's Inquiry,Footnote 15 and the McLean Inquiry in Scotland,Footnote 16 investigated post-mortem removal and retention of organs, and found that consent procedures relating to organ and tissue retention had been insufficient, and that, in many cases, consent had not been sought or had been overridden, thus exposing illegal or paternalistic hospital and coronial post-mortem practices. Further attention was drawn to hospital and coronial post-mortem practices when in 2000 the Chief Medical Officer at the UK Department of Health undertook a census of organs and tissues retained by the National Health Service, revealing that organs and tissue had been routinely retained post-mortem in hospital and coronial cases.Footnote 17
The reputation of coronial and death certification practices in the UK became increasingly cataclysmic with the conviction in January 2000 of Dr Harold Shipman for the murder of fifteen patients while he was a practising general practitioner. The subsequent Shipman Inquiry, chaired by Dame Janet Smith, was tasked with investigating how Shipman's crimes remained undetected, and any associated issues with UK death investigation and registration practices. Simultaneous to the Shipman Inquiry, the UK government commissioned an independent inquiry into death certification and investigation processes chaired by Tom Luce (the Luce Review), which described UK death certification and coroner services as no longer ‘fit for purpose’;Footnote 18 a sentiment that was ultimately shared by Dame Janet Smith.Footnote 19 The assessment of coronial services was grim: coroners lacked leadership and training, and bereaved families received inconsistent service. These reviews were accompanied by a significant research study into family experiences of the coroner service and inquests (Davis et al., Reference Davis, Lindsey, Seabourne and Griffiths-Baker2002). The study affirmed the findings of all inquiries that families both deserved and required better information provision during death investigation, a view echoed by community organisations such as advocacy group INQUEST, which detailed grievances on behalf of the bereaved (INQUEST, 2002).
This unparalleled focus on the adequacy of coronial practice, death investigation and certification provided the impetus for reform, where, by all accounts, the coroner service was in dire need of change (Freckelton and Ranson, Reference Freckelton and Ranson2006a, pp. 24–28). In response to this scrutiny, and taking account of the recommendations of the Luce Review and the Shipman Inquiry, the government developed a position paper to reform the coroner and death certification service,Footnote 20 resulting in a draft Coroners Bill in 2006Footnote 21 and a draft Charter for bereaved people.Footnote 22 After consultation and comment, in January 2009 the Coroners and Justice Bill was introduced into the House of Commons by the then Labour government. Among other reform matters, a core proposal was to establish a Chief Coroner to provide leadership, to ensure coronial consistency, and to improve standards across a fragmented and variable coronial service.
The Coroners and Justice Act 2009 (UK) is the result of sustained attention to death investigation, certification and post-mortem practices throughout UK jurisdictions which highlighted the need to better respond to families.Footnote 23 This need was further recognised by Judge Peter Thornton QC, who, when addressing the Coroners’ Society of England and Wales for the first time as Chief Coroner of England and Wales on 17 September 2012, acknowledged:
‘When somebody once wrote that death was “The certain end of all pain and of all capacity to suffer pain”, they were not thinking of those left behind. The bereaved rightly expect justice from the coroner system … They should be at the heart of the process. We must therefore all work together to provide justice and a better coroner service. Not only for bereaved families but for the wider public.’Footnote 24
The UK is not the only jurisdiction to recognise the needs of families in the coronial process. The UK human tissue and organ retention scandals of the late 1990s and early 2000s resonated internationally, including in Australia, where they generated debate on coronial reform, and prompted state and territory reviews on organ and tissue retention practices more broadly.Footnote 25 Australia has since experienced a significant degree of coronial law and policy reform, including in Queensland with the Coroners Act 2003 (Qld), in Victoria with the commencement of the Coroners Act 2008 (Vic), and in New South Wales with its Coroners Act 2009 (NSW). Law reform is still afoot in other jurisdictions, including Western Australia, which conducted a major review of coronial law and practice in 2010–2011.Footnote 26 Core concerns in Australian coronial reform have centred on post-mortem examination practices and the management of the deceased; information provision to family members, and the rights and role of families in the coronial process; the place of prevention in the legislative framework; the scope of inquests; and targeted coronial recommendations and responses to them.
These reforms provide a rich statutory mandate giving regard to cultural concerns around, for example, post-mortem practices – matters which are not comparatively legislated for in UK coronial law. However, these quite universal coronial issues are tackled differentially throughout Australian states and territories. For example, the focus on families finds various forms of legislative expression. When reviewing the Coroners Act 1985 (Vic), the Victorian Parliamentary Law Reform Committee highlighted the needs of families,Footnote 27 and the Coroners Act 2008 (Vic), Section 8, recognises families in the Act's objectives, legislatively enshrining values around access to information, professional support, and respect for cultural and religious beliefs, while also acknowledging the potential counter-therapeutic aspects of the jurisdiction, such as protracted coronial proceedings.Footnote 28
Other jurisdictions approach matters in a more piecemeal fashion, recognising the needs of families on specific matters, such as autopsy. The Coroners Act 2003 (Qld), Section 19, provides for options for autopsy, including an external, a partial or a full internal examination of the body, with a requirement that before ordering an internal examination of the body the coroner must, where practicable, consider that in some cases the deceased's family may be distressed by such an order (Section 19(5)(a)), and consider any concerns raised by the family in relation to the type of examination (Section 19(5)(b)). Queensland's State Coroner guidelines augment these provisions, stipulating the principle of the least intrusive examination being ordered.Footnote 29 And so, while law reform reports and parliamentary debates have expressed concerns for families facing the coronial processFootnote 30 – acknowledging that post-mortem practices can be distressingFootnote 31 – Australian jurisdictions exercise varied responses to what is a common and widespread concern.
Other issues illustrate the common coronial values that exist across jurisdictional boundaries, but their quite different legislative and policy expression throughout Australian states and territories. For example, all coroners in Australia possess the statutory power to make coronial recommendations, a power which represents ‘the distillation of the preventive potential of the coronial process’, as coroners communicate the lessons of death to the broader community, including government agencies and policy-makers (Halstead, Reference Halstead and Selby1998, p. 187). Yet, mandatory responses to coronial recommendations are required in only some jurisdictions and, even then, there remains the thorny matter of enforceability. Coronial recommendations are just that: solely recommendatory, with Australian coroners possessing no power to make enforceable orders. Arguably, this limitation potentially forfeits the preventative power of coroners (Scott Bray, Reference Scott Bray2008). Some jurisdictions, such as Victoria, have developed the prevention principle to full statutory expression, legislatively enshrining prevention as part of the role of coroners in both the preamble to, and the purposes of, the Coroners Act 2008 (Vic).Footnote 32 And so, while Australian coronial law exhibits the comparable importance placed on the death prevention principle throughout its states and territories, the jurisdictional manifestation of such a core modern coronial value still varies (see Scott Bray, Reference Scott Bray2010).
Arguably, while Australian coronial law and practice has received reform wisdom from international experiences, such as the post-mortem and death investigation controversies in the UK (discussed above), its evolution still owes much to the specific legacies of Australian death and attendant inquiries, such as the Royal Commission into Aboriginal Deaths in Custody (RCIADIC). The RCIADIC was established in 1987 to investigate the high number of Aboriginal deaths in custody, and 2016 marks the twenty-fifth anniversary of the RCIADIC findings. The RCIADIC's 1991National Report revealed ‘the pervasive and troubling failure’ of the coronial system in every Australian state and territory to uncover the circumstances of Aboriginal deaths in custody and to make appropriate coronial recommendations (Watterson, Brown and McKenzie, Reference Watterson, Brown and Mckenzie2008, p. 6). The RCIADIC thus brought considerable attention to the coronial process and the specific issue of Indigenous death prevention, recognising the vital role of the coroner and making thirty-four recommendations aimed at modernising the system and enhancing its preventative potential, which have been variously implemented (see Amnesty International, 2015; Vines and McFarlane, Reference Vines and Mcfarlane2000).Footnote 33
Ostensibly, while the fact-finding task of the coroner may seem, at first blush, uncontroversial, scholars have unpacked that labour to highlight how death's ‘facts’ have an extra-legal life, where the call for justice is loaded with particular histories. This is especially notable in Indigenous deaths in custody, which can ‘petition distinct socio-legal legacies’, such as social injustice and the historical tenor of policing practices (Scott Bray, Reference Scott Bray2010, Reference Scott Bray2013, p. 464). Correspondingly, it is by stretching back through Australia's social and legal past that historical facts, such as the policing of Indigenous people, come to make sense of contemporary death. When the facts of death freight very specific histories of Indigenous life and death, coronial inquiries have implications well beyond ‘mere’ fact-finding in individual cases. Notwithstanding the different legal architectures of coronial systems in Australia and the UK, for example, coronial justice in any jurisdiction is always weighted with the particular histories and legacies of place (Scott Bray, Reference Scott Bray2008).Footnote 34
III. Diluting justice in UK coronial reform
3.1 The spectre of secrecy
It should be evident from the previous discussion that coronial law and practice has not been immune from critical scrutiny. Despite this, the coroner's jurisdiction was staunchly defended when, in 2008, the UK government proposed introducing what have become colloquially known as ‘secret inquests’ – i.e. closed, juryless inquests with government-vetted coroners and counsel – into deaths where the inquest would involve sensitive material, including material that should not be made public in the interests of national security (see Scott Bray, Reference Scott Bray2012; Martin and Scott Bray, Reference Martin and Scott Bray2013). Announced in the context of counter-terrorism with the Counter-Terrorism Bill 2008 (UK), the secret inquest clauses ushered in a three-year period in which successive UK governments repeatedly sought to pass legislation that prescribed holding closed inquests. The Counter-Terrorism Bill 2008 (UK) was followed by secret inquest proposals in both the Coroners and Justice Bill 2009 (UK), and the 2011 Justice and Security Green Paper. All inquest reform proposals were met with considerable controversy, raising cross-party concerns about the role of the executive, human rights, public scrutiny of deaths involving state agents, and the fundamental principle of open justice; concerns echoed by key advocacy groups, such as INQUEST and LIBERTY (see Scott Bray, Reference Scott Bray2012; Martin and Scott Bray, Reference Martin and Scott Bray2013).
The debate around secret inquests was contextualised by the public interest status of coronial proceedings – including the practical and symbolic importance of the inquest jury in prescribed cases, such as deaths in custody – and the UK's obligations under Article 2 of the European Convention on Human Rights (ECHR). The concern was that proposals for juryless, secret inquests removed public scrutiny from the deaths that most require it, including deaths involving state agents. For such inquests, the public interest is underscored in part by the presence of ‘ordinary people, independent of the state’Footnote 35 in judicial proceedings, who figure as both instrumental fact-finders and symbols of openness. To remove this public presence would be equivalent to evacuating the public scrutiny that precisely safeguards open, transparent and accountable justice in these circumstances (see Scott Bray, Reference Scott Bray2012).Footnote 36 In the UK, the principle of open justice was legislatively recognised in 1953 pursuant to the Coroners (Amendment) Act 1926 (UK), and is provided for in rules such as Rule 11 of the Coroners (Inquests) Rules 2013 (UK), which states that ‘[a]n inquest hearing and any pre-inquest hearing must be held in public’, unless the coroner considers it would be in the interests of national security to exclude the public. While inquests have never been uncontroversial, and the coronial system remains an evolving institution (Freckelton and Ranson, Reference Freckelton, Ranson, Freckelton and Peterson2006b), the inquest is a ‘people's court’, underscored by the principle of open justice (Scott Bray, Reference Scott Bray2013, p. 451).
Corresponding to the concern about the absence of juries in significant cases was alarm over the dismissal of human rights obligations which underpin the UK approach to investigating death. Since the Human Rights Act 1998 (UK) incorporated the ECHR into domestic law, UK coronial practice is necessarily contextualised by ECHR obligations. Arguably the most significant influence has come from the impact of Article 2, the right to life. For deaths that engage Article 2, public scrutiny finds even greater purchase. In the event of such deaths – which include those allegedly involving state agents – the state has certain procedural obligations, including an obligation to conduct independent, effective, reasonably prompt, transparent investigations that allow the next of kin to participate to the extent necessary to safeguard their interests (see Jordan v. United Kingdom: paragraphs 105–109; R (Amin) v. Secretary of State for the Home Department; Edwards v. United Kingdom: paragraphs 69–73).Footnote 37
Human rights litigation has reshaped the field of UK death investigation by clarifying the coronial role in the context of ECHR obligations, determining, for example, what the ECHR requires by way of verdict, judgment, findings or recommendations of an Article 2 investigation, and how the regime governing the conduct of inquests be revised so as to meet ECHR obligations (see R (Middleton) v. HM Coroner for West Somerset: paragraph 4). Correspondingly, recent statutory law reform has recognised human rights principles in death investigation with the Coroners and Justice Act 2009 (UK) (see, for example, Section 5(2)). These are changes of real consequence for coroners (see Freckelton and McGregor, Reference Freckelton and Mcgregor2014, p. 584). Accordingly, ECHR obligations materially effect the work of coroners, from the structure and parameters of their inquiries to the form of coronial findings, and exhibit the degree to which human rights have emerged as ‘an important yardstick’ in terms of contemporary death investigation expectations and requirements (p. 584). For commentators, the Bill proposals for secret inquests threw up fears that resulting legislation would contravene ECHR obligations.
The 2008/2009 secret inquest proposals were precipitated by a legal impasse around the issue of inadmissible intercept evidence at the inquest into the death of Azelle Rodney, who was shot dead during a police operation in London in 2005. At a pre-inquest hearing in 2007, the coroner was presented with redacted police material relevant to the coronial investigation, but conceded that he could neither see the material nor put it before a jury.Footnote 38 As Thomas, Straw, Machover and Friedman (Reference Thomas, Straw, Machover and Friedman2014, p. 655) state, the ‘working assumption’ was that the material in question was evidence of intercept, which is inadmissible in UK legal proceedings under Section 17 of the Regulation of Investigatory Powers Act 2000 (UK) (RIPA). The coroner acknowledged the tensions between the prohibition on the material's disclosure under Section 17 of RIPA and obligations under both the then Coroners Act 1988 (UK) to hold a jury inquest and Article 2 of the ECHR to hold an Article 2 compliant inquest. With Article 2 obligations including ‘the disclosure of core documents’Footnote 39 – a fact prohibited in Rodney's case by the unlawfulness of intercept disclosure – the coroner's hands were tied and he adjourned the inquest into Rodney's death.
Despite government assertions that the secret inquest proposals would, in fact, ameliorate the bind it was in to satisfy the state's Article 2 obligations in circumstances where sensitive material could not be disclosed, such as in Azelle Rodney's inquest, it was widely argued that Article 2 obligations would be further frustrated, not advanced, by a lack of public scrutiny, independence, transparency and accountability (Scott Bray, Reference Scott Bray2012, p. 579). In essence, the ‘knee-jerk’ but ‘wide-reaching’ proposals were assessed as creating more problems than the issue they were trying to resolve.Footnote 40 In the face of widespread censure, and to address the continuing legal stalemate, the government eventually amended RIPA to enable disclosure of intercept evidence under the Inquiries Act 2005 (UK) to panels and counsel to the inquiry. Following the defeat of the secret inquest proposals in both the Counter-Terrorism Bill 2008 and the Coroners and Justice Bill 2009, on 10 June 2010 the Justice Secretary announced a public inquiry into Azelle Rodney's death under the Inquiries Act 2005 (UK), which was to be chaired by retired High Court Judge Sir Christopher Holland. Over eight years after Azelle Rodney's death, and an inquiry that cost £2.5 million, a finding of unlawful killing was reached. Despite this significant finding, the case took a circuitous route before the inquiry, ostensibly reinvoking critical claims in the push for coronial reform, including the need for streamlined death investigation (see Scott Bray, Reference Scott Bray2012; Martin and Scott Bray, Reference Martin and Scott Bray2013).
Azelle Rodney's case was not the only inquest to throw up issues of sensitive material and call attention to the coronial jurisdiction's fact-finding efficacy in difficult circumstances. When, in 2011, the UK coalition government proposed secret inquests in its Justice and Security Green Paper (the Green Paper), commentators noted that the inquests pinpointed as a fillip for reform – the inquests into the 7 July 2005 London Bombings (the 7/7 Inquests) – actually evidenced the general success of the extant coronial framework in dealing with sensitive material. In those inquests, coroner Lady Justice Hallett, wrestling with the issue of the reception of sensitive material from the security services, and whether she possessed the power to receive the material in a closed hearing, ruled that she did not possess the power to hold closed hearings and exclude interested persons, including the bereaved.Footnote 41 Nevertheless, she was able to discharge her coronial duties with respect to the 7/7 deaths.
In the Green Paper, the government positioned the 7/7 Inquests as evidence of a weakness in an outmoded system that needed reform to stand up to the contemporary demands around managing sensitive evidence. The government claimed that while the 7/7 Inquests were able in that instance to fulfil the coronial purpose, ‘the situation may be more challenging in future inquests’ if relevant information could not be properly considered.Footnote 42 In this sense, the ‘ad hoc solutions’ applied in the 7/7 Inquests (such as the use of Public Interest Immunity claims) actually increased risks around the use of sensitive material, rather than mitigated them.Footnote 43 The UK Joint Committee on Human Rights (JCHR) concurred with the views of advocacy groups such as INQUEST that coroners display productive creativity with regard to handling sensitive evidence in the extant legislative framework, citing inquest cases such as Jean Charles de Menezes in supporting their criticism of the proposals.Footnote 44 In short, according to the JCHR, the government's case for closed inquest hearings was not made out.Footnote 45 Once again, after significant disquiet, the government dropped inquests from the Justice and Security Bill 2012 (UK).
3.2 Up in smoke: the Chief Coroner and the ‘bonfire of the quangos’
Between the enactment of the Coroners and Justice Act 2009 (UK) and the October 2011 release of the Green Paper, coronial reform was again in the spotlight. And yet again, advocacy groups sought to defend the reform that was many years in the making, and that, with the passage of the Coroners and Justice Bill 2009 (UK), had seemed finally, statutorily settled. In October 2010, the new coalition government announced that, due to the economic climate, the Office of the Chief Coroner – a key aspect of the previous Labour government's coronial reform agenda – would be abolished. In what became known as the ‘bonfire of the quangos’,Footnote 46 Schedule 1 of the Public Bodies Bill 2010 (UK) listed a number of quangos set to be scrapped, including the Chief Coroner, which was a key and bipartisan reform item. The Bill provided the power for a Minister to abolish the offices of the Chief Coroner, Deputy Chief Coroners, Medical Advisors to the Chief Coroner and Deputy Medical Advisors to the Chief Coroner, and to transfer any or all of their functions.
The UK government's plans to abolish the Chief Coroner's post were met with cross-party condemnation and attracted ire from community groups, especially The Royal British Legion and INQUEST, who subsequently campaigned strongly, both separately and together, to refute the government's arguments for abolition.Footnote 47 During the committee stage in the House of Lords, an amendment was tabled successfully by Baroness Finlay of Llandaff to remove the Chief Coroner from the list of public bodies to be abolished.Footnote 48 However, on 14 June 2011, the government announced its plans to proceed with operationalising the Coroners and Justice Act 2009 (UK) reforms without the Chief Coroner. In a written ministerial statement, the Lord Chancellor and Secretary of State for Justice, Kenneth Clarke, outlined that the Office of the Chief Coroner would be listed in Schedule 5 of the Public Bodies Bill 2010 (UK). As a result, the office would remain on the statute books, but the Bill would enable some of its statutory functions to be transferred to the Lord Chancellor or Lord Chief Justice, such as functions:
‘[a]llowing the Lord Chancellor to make regulations about the way in which the coroner system is expected to operate in relation to bereaved relatives; allowing the Lord Chancellor to make regulations about the practice and procedure in coroner investigations, such as the disclosure of information to bereaved relatives and minimum standards for post mortem examinations; allowing the Lord Chief Justice to make rules to regulate practice and procedure at inquests; allowing the Lord Chief Justice to make rules in relation to the training of coroners, including specialist training, for instance, relating to military inquests; allowing the Lord Chancellor to amend coroner areas; and allowing the transfer of military cases to and from Scotland.’Footnote 49
Those functions not transferred would not be implemented, due to cost, such as the Chief Coroner's responsibility for a new appeals system,Footnote 50 which many perceived as a significant casualty of the coronial reform agenda.Footnote 51 The Justice Secretary also proposed establishing a ministerial board to focus on the non-judicial aspects of the coroner service, including matters of policy, administration and service standards. The board would be responsible for advising the Lord Chancellor on his statutory duties, set priorities for action, and consider national statistics; it would also be supported by a Bereaved Organisations Committee, which would be responsible for monitoring the ‘National Charter for the Coroner Service’ that the government published for consultation in May 2011. INQUEST dissected the proposals, noting that neither a ministerial board nor a ‘committee made up of charities and non-profit organisations inputting their views and experience on a voluntary basis’ were suitable substitutes for a ‘dedicated judicial post-holder empowered to implement changes in the form of the Chief Coroner’.Footnote 52 INQUEST also criticised the government's new coronial services charter. Instead of being the ‘robust set of standards’ articulated in a charter for the bereaved that was ‘systemically linked to the new legislation’, INQUEST argued the new charter was a ‘watered down’, ‘generic document’ that would have little impact on the bereaved, and which was, in fact, the impetus for the original charter.Footnote 53
Despite the lobbying, on 11 October 2011 the Public Bill Committee agreed to the insertion of the Chief Coroner in Schedule 5.Footnote 54 A subsequent amendment was moved unsuccessfully during the Commons report stage to leave the Chief Coroner and associated offices out of Schedule 5. Ahead of the debate, eighteen national charities, including INQUEST and the Royal British Legion, wrote a letter to The Times newspaper urging MPs to support the amendment. This was accompanied by a social media campaign by the Royal British Legion entitled ‘Leave it Out Ken!’, which it promoted through Facebook. During the House of Lords consideration of Commons amendments, Baroness Finlay of Llandaff had intended to move an amendment to disagree with the government's amendment to include the Chief Coroner in Schedule 5. Facing possible defeat, on 22 November 2011 Kenneth Clarke announced that, having listened to and reflected on concerns, the Office of the Chief Coroner would be implemented. The following day, during the Lords consideration of Commons amendments, government amendments were agreed to without division. On 17 September 2012, His Honour Judge Peter Thornton QC took up his post as Chief Coroner of England and Wales.
IV. Settling down to business
Coronership dates, at least, from the Articles of Eyre in 1194 (McKeough, Reference Mckeough1983). As the principle means by which unexpected, sudden and unnatural deaths are investigated, coronial inquiries carry a weight of expectation (Scott Bray, Reference Scott Bray2013). A wave of international law reform has sought to refine coronial practice in the light of contemporary expectations for effective death investigation, with many jurisdictions now adjusting to revitalised coronial frameworks. Such significant change entails concomitant challenges, including, but not limited to, questions of publicity, human rights and death prevention, which we now take in turn.
4.1 Going public
Since the Chief Coroner was appointed, the Office of the Chief Coroner has developed a considerable Internet presence,Footnote 55 with a website that contains annual reports, published law sheets, and guidance by the Chief Coroner on matters including, for example, the use of post-mortem imaging (Guidance No. 1), and Reports to Prevent Future Deaths (Guidance No. 5).Footnote 56 The website is also a repository for Reports to Prevent Future Deaths made under paragraph 5, Schedule 7 of the Coroners and Justice Act 2009 (UK),Footnote 57 which upgraded the making of prevention of future deaths reports from a rule to part of the substantive Act, thus securing a coroner's duty (instead of a discretion) to make a preventative report where a concern is identified. Similarly, albeit for quite a few years now, all coroners’ offices in Australian states and territories display an online presence, with varying degrees of information provision, including publishing coronial findings and recommendations.Footnote 58 In Victoria, the importance of Internet information finds a statutory footing. The Coroners Act 2008 (Vic) Section 73(1) stipulates that coronial findings, comments and recommendations made following an inquest must be published on the Internet unless otherwise ordered by a coroner and, under Section 72(5)(a), coroners must publish on the Internet those responses of public statutory authorities and entities to coronial recommendations.
Internationally, coronial practice is therefore experiencing a new dimension of publicity, making what, in the past, has been a largely invisible – though public – process, more visible, accountable and able to be evaluated (see Freckelton, Reference Freckelton2009). However, despite a modernised, digital coronial bureaucracy, this new publicity manifests most dramatically when high-profile and contentious inquest cases have an online presence, which quite significantly progresses the public nature of inquests in contemporary times. There are two key elements to this: first, the use of dedicated inquest websites for specific cases, and second, the proliferation of social media in response to those inquests. A number of high-profile UK inquests in recent years have had a unique public presence with specific websites that publish evidence and/or daily transcripts. Examples include, in the UK, the Jean Charles de Menezes Inquest, the 7/7 Inquests, the inquest into the death of Ian Tomlinson, the inquest into the death of Mark Duggan, the Hillsborough Inquests, and, in Australia, the Sydney Siege Inquest.Footnote 59
While the UK inquests were the most developed in terms of their online presence, publishing daily inquest transcripts, the Sydney Siege Inquest, held in segmented hearings throughout 2015–2016, televised the opening address to each segment, consisting of remarks by the State Coroner and then Counsel Assisting. The opening addresses were statements of summary, but the most lengthy and detailed address was given at the beginning of final public segment, which commenced in March 2016. This segment was arguably the most controversial and certainly the most closely regarded, as it heard both from the hostages about their experiences inside the Lindt Café, and from the police about their decision-making around operational matters. The two-day opening address to this segment presented key evidence, including CCTV footage, photographs of evidential objects, and audio-recordings of 000 emergency calls, as it summarised events as a precursor to calling testimony. In an unprecedented move, the opening addresses keyed the public into core matters subsequently raised at the inquest. And when hearings were held in camera, the opening address served as the valve for publicity where it otherwise could not be achieved for public interest reasons; a move that recognised the importance of public access to coronial information.
The inquests listed above have all scrutinised state practices, but they have done so against the backdrop of a new media environment, saturated with social media and practices such as Twitter, podcasts and live rolling blogs.Footnote 60 In Sydney, Australia, the government Twitter account for the New South Wales Department of Justice, Justice NSW, tweeted on witness evidence and case updates in the Sydney Siege Inquest, such as inquest adjournments and resumptions. Added to this were the manifold journalist tweets on the case under the hashtag #sydneysiege, The Guardian newspaper's ‘Sydney Siege Inquest Recap’ available on iTunes,Footnote 61 and dedicated press webpages.Footnote 62 Similarly, in London in 2011, the inquest into the death of Ian Tomlinson – who died during the G20 protests in London on 1 April 2009 after he was struck by a baton and pushed to the ground by a police officer – witnessed an inquest website, media blogs, Twitter accounts and hashtags that, in chorus, discussed the case. This has meant that such inquests ‘have a contemporaneous social presence that is extensively networked, with information rapidly and widely shared’, illustrating just how much how the digital age has influenced the coronial system (Scott Bray, Reference Scott Bray2013, p. 456). It also confirms that the contemporary manifestation of open justice in coroners’ courts undeniably resides in a multimedia world. The corollary is that such practices pinpoint relatively new coronial terrain, and highlight consequent, emerging issues, such as sensitivities around the public presentation of evidence relating to death.Footnote 63 How might the fact that information now can be disseminated so widely affect the delivery and quality of coronial justice in ways that have, hitherto, been unimaginable? Correspondingly, such unprecedented offsite access to inquests and coronial information requires us to consider the ways in which these developments are reshaping traditional ideas about both the publicity of, and public access to, coroners' inquests.
4.2 Rights-based or rights-attuned?
Another core issue for twenty-first-century coronership is the importance of human rights considerations in death investigation. In Europe and the UK, human rights jurisprudence emanating from Strasbourg has exerted a powerful influence upon death investigation law, strongly impacting normative coronial practice and fine-tuning expectations. Australia, on the other hand, has no federal bill of rights or overarching human rights legislative framework, with only two jurisdictions, Victoria and the Australian Capital Territory (ACT), enacting human rights legislation.Footnote 64 Australia is a signatory to a number of human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). However, international obligations under these conventions do not provide for domestically enforceable rights in the absence of Australian statutory law incorporating those rights, although aggrieved individuals can, for example, communicate their claim in respect of a breach of the ICCPR to the United Nations Human Rights Committee. Both Victoria, by way of its Charter of Human Rights and Responsibilities Act 2006 (Vic), and the ACT by virtue of its Human Rights Act 2004 (ACT), give some domestic effect to human rights, providing for rights-protecting legislative scrutiny and the requirement that public authorities act consistently with human rights. Yet these latter instruments do not have the ‘array of teeth’ as the ECHR does in the UK in terms of compensatory remedies (Freckelton and McGregor, Reference Freckelton and Mcgregor2014, p. 587). Effectively, then, there remains a weakness in enforcing obligations and addressing any possible breach.Footnote 65
In many ways, and despite the absence of a federal bill of rights, Australia already has progressive coronial law and practice, and Australian coroners do not ignore human rights considerations in discharging their investigative duty. In Australian inquests, human rights intermittently concern coroners because interested parties (such as community organisations, human rights agencies and community legal centres) increasingly raise human rights concerns derived from European Court of Human Rights decisions, noting state obligations and the requirements of ‘a human-rights compliant death investigation’ (Freckelton and McGregor, Reference Freckelton and Mcgregor2014, p. 585).
Human rights interveners are typically granted leave to appear as interested parties to assist the coroner with such matters as: identifying human rights issues; understanding the interplay between those rights and the circumstances of death; and appreciating state obligations with respect to the implementation and protection of those rights. In practice, this also means making submissions on matters such as inquest scope, and coroners’ comments and recommendations. Examples include the (then) Australian Human Rights and Equal Opportunity Commission's (HREOC) submissions to the inquest into the death in custody of Mulrunji Doomadgee in 2004 on Palm Island, Queensland, the inquest into the death of Elder Ward during prison transportation in Western Australia in 2008,Footnote 66 and the Human Rights Law Centre (HRLC) submissions to the inquest into the death of fifteen-year-old Tyler Cassidy, who was shot dead by police in Victoria in 2008 (HRLC, 2008). Such contributions are often effective, testifying to the coronial protection of human rights (Hunyor, Reference Hunyor2008, pp. 70–71; see also Hunyor, Reference Hunyor2009). For example, the HREOC's final submission in the inquest into the death of Mulrunji Doomadgee outlined forty recommendations across four main areas (including arrest and policing), which the coroner adopted, demonstrating that human rights interveners can have very material impacts (pp. 70–71).Footnote 67 Increasingly, as the impact of human rights on Australian death investigation grows, it constitutes an issue that Australian and New Zealand coroners and governments ‘will have no choice but to come to terms with over the next decade’ (Freckelton and McGregor, Reference Freckelton and Mcgregor2014, p. 585).Footnote 68
And while the above example of interveners demonstrates the accommodation of Australian coroners to human rights concerns, Australian statutory coronial law does not disregard the protection of human rights in the death investigation context. As with the UK, Australia has undergone considerable coronial reform that reflects the degree to which its coronial law and practice is practically ‘fashioned and influenced by considerations that are respectful of human rights’ (Freckelton and McGregor, Reference Freckelton and Mcgregor2014, p. 599). A broadly principled approach to rights is evident in both clause-by-clause reforms and comprehensive jurisdictional reviews.Footnote 69 Typically, throughout Australia, coronial law reform has focused on a range of issues that highlight the degree to which Australian coronial law demonstrates a uniquely rights-attuned focus, such as involvement of families and autopsy appeal rights. The Coroners Act 2008 (Vic), Section 8, firmly incorporates the recognition of families into the Act's objectives, and, on the subject of post-mortem procedures, provisions allow for ‘preliminary examinations’ of the deceased (Section 23) – which can include a visual examination of the body, the use of imaging techniques such as Computed Tomography (CT) scans, the taking of bodily samples, and the collection and review of health information and fingerprinting – which have reduced autopsy rates from 85 per cent of deaths reported to the coroner to 50 per cent (Ranson, Reference Ranson2010, p. 488), with a corresponding significant decrease in objections to autopsy (Lynch and Woodford, Reference Lynch and Woodford2014, p. 778).
Such reforms quite practically give life to rights, such as the right to privacy, family and cultural life (Article 8 of ECHR; Articles 17, 23, 27 ICCPR), and the right to freedom of religion (Article 9 of ECHR, Article 18 of ICCPR). Arguably, despite recent reform and its fuller rights-based statutory mandate, UK coronial law historically has been paradoxically less rights-attuned than its Australian counterpart, and still does not contain, for example, comparative statutory provisions around objections to post-mortems, and has only recently seen guidance on preferred practice vis-à-vis invasive autopsies.Footnote 70 Accordingly, those matters have been tested in the courts. The 2015 UK High Court case of R (Rotsztein) v. HM Senior Coroner for Inner London North (Rotsztein) dealt with the approach to be taken by coroners when ordering invasive post-mortem examinations in circumstances where the deceased's family has raised religious objections under Article 9 of the ECHR. Following the death of eighty-six-year-old Sarlotta Rotsztein, an Orthodox Jew, in September 2014, and differing medical opinions as to the cause of death, the coroner ordered a traditional (i.e. invasive) autopsy. The family raised their concerns, requesting – and offering to pay for – a non-invasive autopsy (CT Scan and coronary angiography). The coroner rejected the proposal and the family sought an urgent injunction to halt the autopsy, which was granted. A Professor Roberts then performed the non-invasive autopsy. Taking those results together with Mrs Rotsztein's blood and urine culture hospital results, the coroner accepted Professor Roberts's determination as to cause of death. The family was granted permission to bring a test case against the coroner, on the grounds that the case raised questions of principle, which were likely to arise in other cases. Rotsztein found the coroner engaged in flawed reasoning because she did not ask herself whether the initial use of non-invasive techniques would have compromised any subsequently necessary invasive autopsy.
Following Rotsztein, the Chief Coroner amended the guidance on The Use of Post-Mortem Imaging (Adults), to note that in cases where there is ‘an established religious tenet that invasive autopsy is to be avoided’ and Article 9 ECHR is engaged, the coroner should be guided by the propositions stated in Rotsztein in making a proportionate decision.Footnote 71 Those propositions are, first, there must be an established religious tenet that invasive autopsy is to be avoided before any question of avoidance on Article 9 grounds arises; second, there must be a realistic possibility that non-invasive procedures will establish the cause of death and allow the coroner to fulfil her statutory duty; third, the whole post-mortem examination must be capable of being undertaken without undue delay; fourth, the performance of non-invasive or minimally invasive procedures must not impair the effectiveness of any ultimately required invasive autopsy; and fifth, there must be no good reason founded on the coroner's duty to ascertain how, when and where the deceased came by his or her death to require an immediate invasive autopsy.Footnote 72
How coroners (and courts) manage objections to autopsy, and the post-mortem investigation process itself, is an evolving issue internationally, and it is emerging in tandem with the possibilities of technologies such as CT scans. While Australia has no Chief Coroner uniform guidance on post-mortem imaging, it has, as outlined earlier, long heralded an advanced reformist agenda, and this also is with respect to autopsy. Victoria's modernised approach to medico-legal death investigation, with the statutory innovation of ‘preliminary investigations’,Footnote 73 illustrates the balancing act between capturing a depth of information about the deceased in a climate of increased familial concerns about invasive post-mortem techniques. In New South Wales, the Coroners Act 2009 (NSW), provides that, if more than one procedure is available to establish cause and manner of death, the person conducting the examination is to endeavour to use the least invasive procedures that are appropriate in the circumstances; the Act then provides examples at Section 88(2).
There is also a not inconsiderable body of Australian jurisprudence arising from objections to autopsy, stretching from the 1990s, which, when coupled with research, elucidates a more comprehensive picture around the nature of objections and legal decision-making (see Lynch and Woodford, Reference Lynch and Woodford2007). In effect, there is instance-by-instance decision-making on the balance between public and family interests.Footnote 74 And, according to some commentators, when religious and cultural objections to autopsy arise, the courts have nonetheless been ‘deciding the cases on psychological grounds’ (Vines, Reference Vines2000, p. 433). In this sense, the courts have appeared less concerned with the substance of cultural and religious objection, and more with ‘the fact that culture or religion may exacerbate the level of distress’ (p. 433; see also Vines, Reference Vines2007). Australian courts have not granted applications to prevent invasive autopsies ‘specifically on the basis that such interference with the deceased person is contrary to that person's dignity or any privacy rights under statute (for example Victoria's Charter)Footnote 75 or common law’ (Baer Arnold and Bonython, Reference Baer Arnold and Bonython2016, p. 29). Ostensibly, despite the emergence of human rights considerations in Australian coronial matters, at law there still exist somewhat typical objection scenarios.
Taking matters at the earlier point of coroners’ decision-making, Australian research has illuminated the influence of religious and familial concerns upon coroners’ decisions to order less invasive autopsies. In Queensland, Carpenter, Tait, Adkins, Barnes, Naylor, and Begum (Reference Carpenter, Tait, Adkins, Barnes, Naylor and Begum2011) have revealed that less invasive autopsies have been ordered for deceased with a known religious proscription against autopsy (such as Judaism and Islam), but also in the context of a ‘genuine family concern’ being expressed around: suffering of the deceased, fear of further bodily damage, or clarity about the cause of death (pp. 330–331). Notwithstanding this accommodation, the same research discovers that the Indigenous status of the deceased makes ‘no difference to autopsy decision-making’, despite Australian Indigenous proscriptions against autopsy (p. 331; see also Carpenter, Tait, Quadrelli and Drayton, Reference Carpenter, Tait, Quadrelli and Drayton2015; Carpenter and Tait, Reference Carpenter and Tait2009; Vines, Reference Vines2000).Footnote 76 In view of the over-representation of Indigenous people in the coronial system, and thus in invasive coronial autopsies, it appears crucial to interrogate not only the broader circumstances of Indigenous death, but also death investigation processes (Carpenter and Tait, Reference Carpenter and Tait2009). While it is clear that the landscape of autopsy is generally being re-sketched in the light of new technologies, statutory rights to objections, coronial guidance and greater recognition of families, it remains the case that questions about what information is available, how decisions are reached and accommodations exercised, do not lose their currency in a modernised and sensitised coronial era.Footnote 77
4.3 Realising the coroner's preventative potential
The challenge for many coronial jurisdictions lies in realising the preventative potential at the heart of modern coronial frameworks. European human rights jurisprudence has steered contemporary UK coronial law and practice in a greater preventative direction. Cases such as R (Amin) v. Secretary of State for the Home Department,Footnote 78 have described that the purposes of an Article 2 death investigation include:
‘to ensure so far as possible that the full facts are brought to light; that culpable and discreditable conduct is exposed and brought to public notice; that suspicion of deliberate wrongdoing (if unjustified) is allayed; that dangerous practices and procedures are rectified; and that those who have lost their relative may at least have the satisfaction of knowing that lessons learned from his death may save the lives of others.’ (paragraph 31)
Cases such Amin – with its emphasis on lessons learned from death as part of the investigative purpose – have encouraged the preventative coronial role (Freckelton and McGregor, Reference Freckelton and Mcgregor2014, p. 590). The preventative principle has been supported in other ways. For example, the net effect of Middleton Footnote 79 was a broadening of the scope of inquests, which ‘ushered in an era of more probing investigation of the overall context and issues that give rise to deaths’ with a corresponding focus on whether they are preventable (p. 588). Middleton determined that to satisfy the procedural duty in Article 2 cases, coroners and juries were to take a broad approach to the statutory question of ‘how’ the deceased died. The investigation of ‘how’ the deceased came by their death was to be interpreted as not confined to ‘by what means’ (as stated in R v. Coroner for North Humberside and Scunthorpe; Ex parte Jamieson)Footnote 80 but ‘by what means and in what circumstances’. Accordingly, in some cases, the jury's conclusions might not be sufficiently accommodated in a short-form verdict.Footnote 81 Instead, this change of approach to the interpretation of how the deceased came by their death could require the coroner to invite a narrative verdict (paragraph 35), which may be more informative than short verdicts such as ‘misadventure’, and give greater scope to appreciating the surrounding circumstances of a death.Footnote 82
In Australia, the coroner's jurisdiction has moved from a reactive to a more proactive assessment of deaths, as demonstrated by coroners’ recommendatory functions. Despite not being preoccupied wholesale by the same Article 2 enunciations that find purchase in Middleton, Australian coronial fact-finding has nevertheless echoed the Middleton approach, with Atkinson v. Morrow determining that the expression ‘how the death occurred’ should be given the broad construction of ‘by what means and in what circumstances the death occurred’.Footnote 83 Notwithstanding this appellate clarification, in Australia, the narrative form of coronial findings has long been a strong feature of coronial practice. Australian coroners routinely declare their findings of fact through discursive statements of circumstances. And while the form of coronial findings varies from jurisdiction to jurisdiction, the robust contextual narration of findings is a common feature, and arguably significantly more discursive than even the most fulsome UK narrative verdicts. This approach has been known to frustrate the courts, who have, at times, castigated Australian coroners for prolix findings (see Keown v. Kahn).Footnote 84 In the UK, the frustration has been with statistical coding of narrative verdicts, specifically impacting suicide cases and possible underestimation of those deaths (see Hill and Cook, Reference Hill and Cook2011; Carroll, Hawton, Kapur, Bennewith and Gunnell, Reference Carroll, Hawton, Kapur, Bennewith and Gunnell2011; Tait et al., Reference Tait, Carpenter, De Leo and Tatz2015, p. 245).
The rise of ‘narrative verdicts’ (or ‘narrative conclusions’) in the UK, together with the making of preventative reports,Footnote 85 is now illuminating the question of what to do with coroners’ insights in that jurisdiction. Advocacy group INQUEST has published numerous reports addressing institutional deaths, arguing for auditing, follow-up and compliance monitoring of coronial recommendations (see, e.g., INQUEST, 2015b).Footnote 86 And so, somewhat paradoxically, greater attention to the preventative potential of the coronial jurisdiction is highlighting the possible short-circuiting of fully realisable death prevention. In Australia, this has been an ongoing concern since coronial recommendations signalled the preventative evolution of coronial law (Bugeja and Ranson, Reference Bugeja and Ranson2003),Footnote 87 leading commentators to question the ultimate impact of coronial insight, and the devastating amount of coronial expertise that is stockpiling without consequence throughout Australia (Scott Bray, Reference Scott Bray2008, p. 36; Watterson et al., Reference Watterson, Brown and Mckenzie2008; Brazil, Reference Brazil2011).
Notably, in 2000, Australia established the National Coronial Information System, a database of coronial information on all Australian deaths reported to the coroner (Pearse and Daking, Reference Pearse and Daking2007; Bugeja, Ibrahim, Ferrah, Murphy, Willoughby and Ranson, Reference Bugeja, Ibrahim, Ferrah, Murphy, Willoughby and Ranson2016), and, as outlined earlier, Australian states and territories coroners’ offices regularly publish coronial findings – containing their recommendations – on their websites. In addition, specialist death review teams exist throughout Australia, such as the NSW Domestic Violence Death Review Team, to further hone the preventative capacity of coronial death review.Footnote 88 Despite these established activities of death review and audit, the question remains: How can society support and enhance key coronial functions, such as the recommendatory function, considered so vital to protecting life through its preventative ethos? In this area, despite their distinct legal architectures, both the UK and Australia have some way to go until coronial recommendations and death reviews reach their preventative promise, including resources for informed recommendations and any enforceability.Footnote 89
5. Conclusion: beyond justice
When Lady Justice Hallett was considering the receipt of the security services material during the 7/7 Inquests, she observed that if the material could not be gisted in open hearings, and if its exclusion undermined the coronial investigation, then the inquest could be dispensed with in favour of a public inquiry ordered by the Lord Chancellor. Yet this transition from an inquest to an inquiry would not necessarily be easy, nor any more public. In effect, the whole investigative process would be restarted, a scenario best avoided, she said, because:
‘The bereaved families and survivors have waited over five years since the bombings and I have promised them an end to these proceedings by next spring. Many witnesses have been through the ordeal of giving evidence and I am sure would not wish to repeat that experience. The families have had to suffer the distressing experience of hearing witnesses speak of the death of their loved ones in all too graphic terms. They would not wish to relive that experience. And, of course, there is the question of the considerable quantity of public resources expended so far.’Footnote 90
Lady Justice Hallett is not alone in drawing attention to the multiple stakes of death investigation, not least the deleterious emotional effects of extended investigations, highlighting that coronial processes are far from dispassionate, bureaucratic events. Research confirms the entirely affective impacts of coronial processes (e.g., Davis et al., Reference Davis, Lindsey, Seabourne and Griffiths-Baker2002); impacts that are bound up in questions of resources and delays, but also the very nature of the investigative exercise.Footnote 91 Insights into bereavement are essential for tracking justice outcomes, including in the coronial jurisdiction. Criminologist Phil Scraton participated in Daniel Gordon's documentary, Hillsborough, which was first released in 2014, and subsequently updated following the Inquests' conclusion in April 2016. Hillsborough was shown in the UK for the first time on 8 May 2016 on the BBC. Speaking in Hillsborough of the years before the new Inquests' vindication of the Hillsborough families' fight for justice, years that had included the lengthy and flawed first coronial investigation, Phil Scraton said:
‘what I witnessed was the distress and depression associated with injustice, that exacerbated bereavement; deep, hurtful, painful suffering over a long period of time; people taking their own lives; people dying prematurely; people broken by the struggle for justice'. (in Gordon, Reference Gordon2014/2016)
Inquests can deliver justice, but they have also been known to stall, derail and dilute it; and ultimately those who are left to embrace the inquest's benefits, or bear its failings, are the bereaved.Footnote 92 Coronial law and practice are wholly lived and experienced by bereaved families and friends and, correspondingly, coronial inquisitions are not reducible to a simple fact-finding endeavour (Scott Bray, Reference Scott Bray2010, Reference Scott Bray2012). They perform a much broader meaning-making task around death.Footnote 93 The experiences of the Hillsborough families tell us as much.
The Hillsborough Inquests have settled part of the justice record for the ninety-six people who died, but in the aftermath of the unlawful killing conclusion, much is already being written about where to now.Footnote 94 Where the Inquests are now being portrayed as but one piece of resolving the Hillsborough disaster, commentators are canvassing the possible paths ahead: suing the police, resignations, if not the disbanding, of the South Yorkshire police, and criminal prosecutions. Some commentators note that the Inquests are a shot across the bow, highlighting the need for greater vigilance against unaccountable power.Footnote 95 The Hillsborough Inquests, with their resounding determinations, are now a catalyst for more: more accountability, better recompense, and greater redress. In many senses, the Inquests' aftermath highlights how coronial work and its effects often operate beyond justice. Just as the coronial jurisdiction does not operate in a socio-legal vacuum, and is often part of a complicated case sequence around contentious deaths (including public inquiries, and a criminal and/or civil trial), its outcomes entail more than justice work. Therefore, following significant international reform, the task moving forward is to consider more fully the nature of this work, and what else the coronial process might achieve.
