The coronial jurisdiction has been particularly affected by the COVID-19 pandemic. Death referrals to coroners are up significantly throughout the county, as much as fivefold in some jurisdictions. It therefore comes as no surprise that the Chief Coroner has rapidly brought out further guidance to assist coroners in this unprecedented situation.
On 26 March 2020 the Chief Coroner published Guidance Note 34 for Coroners on COVID-19 (“GN34”) which can be found here. He also brought out Guidance Note 35 (Hearings during the Pandemic) on 27 March and Guidance Note 36 (Summary of the Coronavirus Act 2020) on 30 March 2020. The Guidance Notes address many of the issues relating to the impact of COVID-19 on the coronial service. We set out below some answers to questions those involved with the coronial system may currently have in mind, taken from the Guidance Notes and other sources (“Guidance Note” has been abbreviated to “GN” – GN34 [No.]” refers to paragraph numbers in the Guidance Note).
1) Are Coroners’ Courts conducting hearings at the moment?
GN34 [10] provides that “no physical hearing should take place unless it is urgent and essential business and that it is safe for those involved for the hearing to take place. A particular concern is to ensure social distancing in court and in the court building.”
It is also noted that “All hearings that can possibly take place remotely (via whatever means) should do so, and other hearings should continue only if suitable arrangements can be made to ensure distancing although the Chief Coroner accepts that in many jurisdictions this may be difficult. Hearings which must continue should be those considered essential business”
2) Can Coroners’ inquests and/or PIRHs be conducted remotely?
The Coroners (Inquests) Rules 2013 rule 11(3) provides:
“An inquest hearing and any pre-inquest hearing must be held in public unless paragraph (4) or (5) applies.”
Rule 11(4) provides an exception for hearings being in public where interests of national security are engaged. Rule 11(5) provides an exception for pre-inquest review hearings being in public where the interests of justice or of national security are engaged. There has been no declaration to date that holding PIRHs privately would be in the interests of justice.
GN34 [10] sets out practical steps to be considered and includes the following observations:
“All hearings that can possibly take place remotely (via whatever means) should do so, and other hearings should continue only if suitable arrangements can be made to ensure distancing although the Chief Coroner accepts that in many jurisdictions this may be difficult. Hearings which must continue should be those considered essential business.
Coroners are reminded that such hearings must in law take place in public and therefore coroners should conduct telephone hearings from a court, not their homes or their office. In the light of the statement of the Prime Minster on March 23, 2020 as to gatherings and travel only where absolutely necessary, hearings taking place in public may mean they take place where only a member of the immediate family is present and with a representative of the press being able to be present.”
Given the need for coroners to travel to hold telephone hearings from a court (note it does not have to be a coroners court, given that the court may be shut), coroners are considered to be conducting “essential business”.
Some pre-inquest review hearings can be done on paper. Coroners are sending out agendas and asking for responses and submissions.
In response to what must have been a myriad of questions on virtual hearings, GN35 [2]-[6] stated:
“2. Various questions have been asked about ‘virtual hearings’…
4. In the civil jurisdiction it is possible for certain hearings to take place in private or without the need for a judge to be physically present. This has been the case for some time and utilises the flexibility already provided for in the CPR. It is not the result of the emergency legislation. It does not apply to the coroner jurisdiction.
5. Why must the hearing happen with the coroner physically present? Simply put absent a coroner, it is not a court. Although all parties who need to be present may do so by phone or any other link, the Chief Coroner’s guidance is that, as the law currently stands, a coroner should be present at the hearing.
6. Can the coroner be present by Skype or phone? As the legislative provisions currently stand, the answer is no.”
3) Are post-mortems still taking place?
GN34 [24]-[29] discusses post-mortem examination practice in general and the current pressures on the system, concluding that “The availability or lack of availability of post-mortem examination facilities and pathologists will be a factor for coroners to consider in deciding whether to order an examination (or a particular type of examination) in each case. Coroners may need to consider partial or external examinations by pathologists as well as non-invasive examinations, or no examination at all. Cases of particular complexity and sensitivity may need to be prioritised.” However, given the emergency situation, it may be that post mortem examinations are not possible, either because of infection risk grounds or capacity problems ([23](v)). In such a scenario, coroners are invited to consider other relevant medical and other evidence that may enable a conclusion to be reached – see [23](vii-viii).
4) Does suspicion of COVID-19 as a cause of death mean that the death must be reported to a Coroner?
Not necessarily. GN34 [18] provides:
“COVID-19 is an acceptable direct or underlying cause of death for the purposes of completing the Medical Certificate of Cause of Death (MCCD);
COVID-19 as cause of death (or contributory cause) is not a reason on its own to refer a death to a coroner under the CJA 2009;
That COVID-19 is now a notifiable disease under the Health Protection (Notification) Regulations 2010 does not mean referral to a coroner is required by virtue of its notifiable status (the notification is to Public Health England), and there will often be no reason for deaths caused by this disease to be referred to a coroner”
GN34 [19]-[20] continues:
“19 To restate: COVID-19 is a naturally occurring disease and therefore is capable of being a natural cause of death. There may of course be additional factors around the death which mean a report of death to the coroner is necessary – for example where the cause is not clear, or where there are other relevant factors. This is set out in the Notification of Death Regulations 2019. There may also be cases where an otherwise natural causes death could be considered unnatural.
20. The aim of the system should be that every death from COVID-19 which does not in law require referral to the coroner should be dealt with via the MCCD process. On this matter the Chief Coroner and the National Medical Examiner are in full agreement.”
5) How long will hearings be adjourned for?
The Guidance (which refers to Chief Coroner COVID-19 Note #3, circulated on 19 March 2020 but partially overtaken by events) states at [10] that it is likely that the coroner will hold some inquests (non-contentious Rule 23 hearings) over the coming months.
Any jury inquests that are due to start between 31 March and Friday 28 August of any significant length should be adjourned. Cases that are scheduled for 1 September onwards should generally remain in the list. [COVID-19 note #3, page 2]
No new jury trials should take place [according to the HMCTS, which overtakes the COVID-19 note #3, page 2]
Likewise any long or complex inquests not involving a jury, which require a large number of witnesses to attend in person, should be reviewed and may need to be adjourned. [COVID-19 note #3, page 2].
COVID-19 note #3 says that ongoing inquests, including jury inquests, should not automatically be abandoned, and less complex inquests and PIRHs listed to start between now and 31 March should generally proceed. It is unclear whether this has been overtaken by GN34, but in any event it is presumed that this would only be the case if:
- All relevant witnesses are able to attend remotely;
- All relevant witness are available (which they may not be, if they are medical staff, key workers or are suffering from COVID).
- The PIRH cannot be done on paper (see above)
It is advisable to check with the coroners’ court as to whether the inquest is proceeding or not.
6) Will juries be required to sit for inquests involving COVID-19?
Not as a matter of course.
The Coroners and Justice Act 2009 (“CJA 2009”) section 7 provides that a jury inquest is triggered where the senior coroner has reason to suspect (amongst other things) “that the death was caused by a notifiable accident, poisoning or disease.”
On 6/3/2020 COVID-19 was designated a notifiable disease under the Health Protection (Notification) Regulations 2010 and would therefore in principle have triggered jury inquests in cases where the death was reported to the Coroner.
However, section 30 of the Coronavirus Act 2020 (which came into force on 25 March 2020) provides:
“30 Suspension of requirement to hold inquest with jury: England and Wales
(1) For the purposes of section 7(2)(c) of the Coroners and Justice Act 2009 (requirement for inquest to be held with jury if senior coroner has reason to suspect death was caused by notifiable disease etc), COVID-19 is not a notifiable disease.
(2) This section applies to an inquest that is opened while this section is in force (regardless of the date of the death).”
See also the Explanatory Notes to the 2020 at p13 [67]-[70] and p42 [315]-[318] which can be found here.
It is important to note that the Coronavirus Act 2020 is not retrospective (GN36, page 3). Therefore, where the person died before 25 March 2020 and their inquest was opened before that date, there will need to be a jury, but not if the inquest was opened on 25 March or thereafter.
There may, however, be circumstances that do trigger the requirement for an inquest to be held with a jury, such as where the death occurs in custody and the deceased, whilst suffering from COVID-19, dies an unnatural death.
7) What happens to outstanding Prevention of Future Death reports?
GN34 [10] invites coroners to recognise the primary clinical commitments of medical professionals. As far as responses to existing PFD reports are concerned, it is suggested that “Coroners may wish to proactively review outstanding PFD responses and write to some recipients, as they see appropriate, inviting an extension. However, there should be no blanket policy of extension for all PFD reports – many recipient organisations, individuals or businesses have nothing to do with the COVID-19 response and are continuing to work in as normal a way as possible.”
8) Can additional coroners be appointed to deal with any increased number of cases?
GN34 [11]-[15] sets out options for the appointment of additional assistant coroners, including re-appointment of retired assistants as well as new appointments (which may not be subject to open competition). GN34 [14] promises an update to senior coroners and local authorities in relation to “a number of avenues” being pursued “to widen the pool of assistant coroners”.
9) How is COVID-19 likely to be recorded in the cause of death?
GN34 [19] states that “COVID-19 is a naturally occurring disease and therefore is capable of being a natural cause of death.” Therefore, where an inquest is held and the cause of death is found to be COVID-19, box 4 on the record of inquest is likely to read “natural causes” (see the Record of an Inquest form attached to the Chief Coroner’s Guidance Note No. 17).
10) What happens to non-COVID-19 deaths?
At present, deaths that are referred to the coroner are going through the usual processes, which can include investigation and inquests. However, coroners and coroners’ officers are under severe pressures due to COVID-19 related deaths, their own illness or self-isolation, or their own care commitments. As such there are likely to be long delays, breaching the Chief Coroner’s 12 month target for completing an inquest. This is recognised by the Chief Coroner [10].
11) What happens if there is a death in prison or otherwise in state detention?
Under s.1 CJA 2009 coroners are required to open an inquest into deaths in prison or otherwise in state detention, even if it is a natural death. Following R (Tainton) v HM Senior Coroner for Preston and West Lancashire [2016] EWHC 1396 (Admin) there is no need for a jury when the death is from natural causes. It will be necessary for the coroner to open an investigation but delay the inquest until the pandemic has passed ([38]-[41] and [23](ix)).
The Chief Coroner continues to keep these issues under constant review in a significantly altered –and rapidly changing – legal landscape. It would therefore be helpful to keep a close eye on the Chief Coroner’s Guidance, Advice and Lawsheets website for further updates.
