Subject to the court having effective technology, the pandemic has seen a significant change in the way that pre-inquest review hearings (PIRHs) and final inquest hearings have been conducted with widespread use of remote attendance of both witnesses and legal representatives. To my mind this has worked well for PIRHs and in most cases for the inquest itself.
On 28 June 2022, section 85A of the Courts Act 2003, and the Remote Observation and Recording (Courts and Tribunals) Regulations 2022 ('the Regulations') came into effect. These provisions allow the remote observation of proceedings in any court, tribunal or body exercising the judicial power of the State, including Coroners' courts.
In light of this, the Chief Coroner, HHJ Thomas Teague QC, issued Chief Coroner Guidance (CCG) 42 on 28 June 2022, which provides guidance on remote attendance in the Coroner's Court by the public, including the media, participants (IPs, witnesses and representatives) and, to a more limited extent, Coroners and juries.
Key takeaway points from the CCG 42
- No-one has the right to observe a hearing remotely. Individuals are entitled to apply for permission, but applications will be considered on a case-by-case basis and may be refused.
- To manage the administrative burden of dealing with applications for remote observation, coroner areas may wish to publish guidance on the application process. The details are likely to differ depending on the area's staffing levels and resources.
- When deciding an application to observe a hearing remotely,
coroners must refer directly to the legislation and ensure that
- apply the test in regulation 3 of the Regulations (which allows the coroner to permit remote attendance if satisfied that it would be in the interests of justice, there is the capacity and technological capability to enable it, and it would not create an unreasonable administrative burden); and
- take into account the mandatory considerations in regulation 4 and any other relevant matters.
- Individuals seeking remote attendance will need to explain why it is in the interests of justice to allow them to observe a hearing remotely when there is the option to attend in person.
- Coroners will make judicial decisions about remote observation based on the circumstances of each individual case. The CCG provides some examples of how such decisions may be made.
- It is unlikely that coroners will need to consult interested persons before deciding remote observation applications, unless there is an obvious reason in a particular case why an interested person might justifiably object to the coroner's decision.
- Decisions on remote observation do not require detailed rulings. A couple of sentences setting out the coroner's reasons for granting or denying the application should usually suffice.
- The Chief Coroner considers that it is lawful to use video/audio livestreaming to hear evidence from witnesses and/or for participation by interested persons and their representatives.
- Participants (i.e. witnesses, interested persons and representatives) do not, however, have the right to attend hearings remotely. Participants can apply to take part in proceedings remotely, but applications will be considered on a case-by-case basis and may be refused.
- Before deciding whether to allow a participant to attend proceedings remotely, coroners should give other affected participants an opportunity to make representations.
- The coroner can only permit a witness to attend proceedings remotely where it would improve the quality of the evidence given, or allow the inquest to proceed more expediently. The coroner must also consider whether remote attendance would impede the questioning of the witness.
- When deciding whether to allow remote participation by interested persons and legal representatives, coroners must balance the interests of justice and the interests of all those attending the proceedings. It is important for coroners to remember that the interests of justice are wider than the circumstances of the individual case and holding an effective hearing.
- The Chief Coroner's own view is that in person attendance is beneficial and so remote attendance should not normally be permitted just because the participant would prefer it.
- If a jury hearing with remote participants takes place, the jury must be visible to all remote participants.
Remote attendance by the Coroner/Juries
- As the law currently stands, the coroner and any jury must be physically present in the courtroom. However, rules will be made in due course to enable coroners and juries to attend hearings remotely.
- Under the new rules, juries will only be able to attend remotely if all jurors are present at the same place when accessing the hearing.
- It is the Chief Coroner's view that even once rules are made it is unlikely to be in the interests of justice for jurors to attend proceedings remotely unless there are exceptional circumstances.
CCG 42 also provides some guidance as to how Coroners should manage remote hearings and specific warnings that Coroners should not be giving if they were not already doing so. They are directed to the valuable guidance in the Equal Treatment Bench Book.
The key message therefore is that IPs will need to make applications to the Coroner hearing their case for remote attendance of witnesses and if necessary advocates. Such applications will need to be made in advance and reasoned. It is not clear from the note whether this will be the case for inquests that are already listed in courts where remote attendance of witnesses in some cases has been the norm. It might be prudent to at least write to your Coroner's officer in respect of any existing cases to understand what, if any, steps need to be taken in respect of forthcoming hearings. At any new PIRHs it would be worthwhile raising this point as a matter of inquest management.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.