There is a already a duty to respond to the coroner

HM Assistant Deputy Coroner for Inner West London

As yet, we don’t have a new Coroners Act. What we do have is the promise of a Bill and some idea of what it might contain. (Ministry of Justice, 2008a, Coroners Bill – Changes made resulting from consultation) Amongst other things, there will a duty to respond to a coroner’s concerns. In the meantime, the existing rules have been strengthened to much the same effect.

Eventual powers
According to the document in which the Government makes its promise, a coroner who believes that action should be taken to prevent the recurrence of fatalities similar to one he or she has investigated will be able to report the matter to anyone with the power to take such action. (Ministry of Justice, 2008a, op cit, page 3) This reflects proposals in the draft Coroners Bill and support from within Parliament itself. (Secretary of State for Constitutional Affairs, 2006, Draft Coroners Bill, Cm 6849, clause 12(2); House of Commons Constitutional Affairs Committee, 2006, Reform of the coroners’ system and death certification, Eighth Report of Session 2005-06, HC 902, paragraphs 201-211)

Although this resembles rule 43 of the Coroners Rules 1984, it differs from that provision because it would [1] both allow a coroner to report the matter to the new Chief Coroner and compel any organisation that received such a report to respond; and [2] enable the Chief Coroner to monitor reports and responses, and to summarise them in his or her annual report to the Lord Chancellor. (Ministry of Justice, 2008a, op cit, page 3) In fact, the difference is not as great as it might have been. That is because rule 43 has recently been amended, so that reports may be sent, and responses required, even before any new Act comes into force.

Interim powers
The amendments, which were made by The Coroners (Amendment) Rules 2008, came into effect on 17 July 2008. (SI 2008 No 1652)

Making a report
Where, on the basis of evidence heard at an inquest, he or she believes action should be taken, the amendment allows a coroner to make a report to prevent not just similar fatalities, but “other deaths”. (Rule 43(1)(b)) This represents a significant change, because, we are told, it “will allow the coroner to report issues that may be peripheral to the current case but nevertheless prevent death(s) in the future.” (Ministry of Justice, 2008b, Guidance for coroners on changes to Rule 43: Coroner reports to prevent future deaths, paragraphs 2.1 & 2.2) This change should not, however, lengthen inquests or broaden their scope. (Ibid, paragraph 2.4)

The amended rule and the guidance upon it each say, somewhat confusingly, both that a coroner who intends to make a rule 43 report must announce that intention before the end of the inquest and that a failure to do so will not prevent such a report being made. (Rule 43(3); Ministry of Justice, 2008b, op cit, paragraph 2.5) One wonders what the word ‘must’ is intended to mean here.

The content of a report
The amended rule does not say what information must be included in any new-style report, for this will be in the discretion of the coroner and depend upon the circumstances of each case. Coroners should, however, tell those to whom they send a report that a response must be provided within 56 days, and that it might be released and published. (Ministry of Justice, 2008b, op cit, paragraph 2.7)

Sharing a report
Subject to any representations (as to which see below), a rule 43 report must be copied to anyone whom the coroner has recognised as a properly interested person and to the Lord Chancellor, and may be sent to “any person who the coroner believes may find it useful or of interest”. (Rule 43(4)) This last is a very wide provision. It may include “regulatory bodies or organisations with an interest in the subject mater of the report”. (Ministry of Justice, 2008b, op cit, paragraph 3.4)

Having received a rule 43 report, the Lord Chancellor may publish it and/or copy it “to any person [whom he] believes may find it useful or of interest” (provided that person hasn’t already received the report from the coroner). (Rule 43(5)(b)) The Lord Chancellor has been given this power so that “issues which were subject to reports in one coroner district which may have relevance to other coroner districts [may be] identified and disseminated nationally”. This should, in turn, allow “emerging trends to be identified and lessons that could be applied at a national level to be highlighted.” (Ministry of Justice, 2008b, op cit, paragraphs 1.3-1.7)

Responding to a report
No one that receives a rule 43 report is obliged to act upon it. They will, however, have to respond to it, and ordinarily, to do so within 56 days. The response must set out any action that has been taken or proposed, and if there is no such action, it must explain why. (Rule 43A(1))

A coroner may extend the 56-day period for a response, either before or after it has expired (Rule 43B) and for whatever further period he or she considers appropriate. The guidance says that an extension might be appropriate where, for example, the report: [1] “is sent to the incorrect person or division in an organisation, especially a large organisation[,] and is not promptly received”; or [2] “requires significant policy work to be undertaken before a response may be sent”. (Ministry of Justice, 2008b, op cit, paragraph 4.6)

Although the amendment does not impose a sanction, any failure to respond to a rule 43 letter should be followed up by the coroner, and “Where a response remains outstanding after reasonable attempts, then the coroner may inform the Lord Chancellor.” If there is a continuing failure to respond, the latter may mention it in any document he publishes about rule 43 reports. (Ibid, paragraph 4.8)

Making representations
An organisation that does not wish its rule 43 response to be shared with others may make representations to the coroner in that regard. This might be because: [1] “the response contains confidential or classified information”; [2] “the release of the response might have a prejudicial effect on ongoing or upcoming legal proceedings”; or [3] “regulatory enforcement action is being carried out under confidentiality rules.” (Ibid, paragraph 5.7)

Any representations must be in writing, (Rule 43A(4)) and it will be up to the coroner to decide whether to accept them and, if so, how to respond. (Ministry of Justice, 2008b, op cit, paragraph 5.6)

Even if he or she accedes to any representations, a coroner must still prepare a summary of the response for release and publication. (Rule 43A(6) & (7)) It is this summary that will be copied to interested parties and might be shared with others. Although the Lord Chancellor may not overrule a coroner’s decision in this regard, he must be sent not only the summary, but also the original rule 43 report. (Ministry of Justice, 2008b, op cit, paragraphs 5.9 & 5.10) He may only, however, publish the summary. (Rule 43A(3)(a) & (7); Ministry of Justice, 2008b, op cit, paragraph 6.2)

Comment
Although, in an appropriate case, the coroner must be told what is to be done to prevent further deaths, he cannot require a particular course of action to be taken. Rule 43 has certainly been strengthened, but the obligations it imposes need not be difficult to meet.

Two falls, a submission or a narrative verdict

The response to his verdict was a little more robust than the coroner had expected

(courtesy of www.oldtimewrestling.com)

It’s hard to know what a coroner is supposed to do. The obligations of the role might be set down in black and white, but changing times and expectations seem to stretch them wider and wider. One thing, however, is abundantly clear: if we are to believe Roland Barthes, inquests have a great deal in common with wrestling-matches.

The law
In section 11(5), the Coroners Act 1988 says an inquest should determine who the deceased was, and where, when and how he came by his death. After Middleton, we know that in order to satisfy the Human Rights Act 1998, the how question must be interpreted widely, and that an inquest should ask “by what means and in what circumstances” the deceased died. Although the courts continue to worry away at this question, there is one thing we can be clear about: under rule 42 of the Coroners Rules, no verdict may be framed in such a way as to appear to determine any question of civil or criminal liability. The coroner cannot, in other words, attribute blame. That is a significant prohibition, not only for those involved, but also for how, taking several steps back, we might choose to think of the inquest process.

A spectacle of excess
Whatever the French thinker Roland Barthes knew about coroners and their inquests, he certainly knew his wrestling, and he wrote about it an essay that subsequently appeared in his celebrated work, Mythologies (1957, Paris, Editions du Seuil). For Barthes, wrestling was “a spectacle of excess” and had “a grandiloquence which must have been that of ancient theatres.” Large parts of his analysis seem to apply equally to inquests.

Not a narrative
The first similarity between an inquest and a wrestling match lies in their conclusion, which is never the culmination of the contest that preceded it. That much, in an inquest, is guaranteed by the Rule 42 prohibition. The public “abandons itself to the primary virtue of the spectacle, which is to abolish all motives and all consequences.” Here, of course, Barthes is talking about wrestling. It is “a sum of spectacles, of which no single one is a function: each moment imposes the total knowledge of a passion which rises erect and alone, without ever extending to the crowning moment of a result.”

This means that the contest cannot be understood as a narrative. On the contrary, “it is each moment which is intelligible, not the passage of time. The spectator is not interested in the rise and fall of fortunes; he expects the transient image of certain passions. Wrestling therefore demands an immediate reading of the juxtaposed meanings, so that there is no need to connect them. The logical conclusion of the contest does not interest the wrestling-fan”. This absolute focus, which wrestling might be thought to share with the inquest, on the here-and-now has several consequences for each.

No gouging
The first consequence is that “it is the pattern of Justice which matters here, much more than its content”. The contest, Barthes says, “is above all a quantitative sequence of compensations (an eye for an eye, a tooth for a tooth).” We might argue, therefore, that although – or perhaps because – the inquest cannot conclude in the attributing of blame, it is often used to embarrass those seen, rightly or not, as culpable in the death, whether they be doctors, nurses, social workers, police officers or the Ministry of Defence. Barthes seems to anticipate this argument: “The idea of ‘paying’ is essential to wrestling, and the crowd’s ‘Give it to him’ means above all else ‘Make him pay’. This is therefore, needless to say, an immanent justice. The baser the action of the ‘bastard’, the more delighted the public is by the blow which he justly receives in return.”

In the red corner
The second consequence of the “sum of spectacles” is that everyone has – and understands – his or her allotted role. The function of the wrestler, for example, is not to win, “it is to go exactly through the motions which are expected of him”, and he will do this by means of “excessive gestures, exploited to the limit of their meaning.” In an inquest, of course, the wrestler-equivalent need not be the coroner himself; it could as easily be a lawyer or a bereaved relative.

The family of the deceased, in fact, has a very particular role at an inquest, even if it extends no further than reading a prepared statement or holding up a framed photograph to the television cameras on the steps of some anonymous municipal building. In its lachrymosity, the family always seems to understand that whatever the conclusion, it must at least appear to have lost. For Barthes: “The gesture of the vanquished wrestler signifying to the world a defeat which, far from disguising, he emphasizes and holds like a pause in music, corresponds to the mask of antiquity meant to signify the tragic mode of the spectacle. In wrestling, as on the stage in antiquity, one is not ashamed of one's suffering, one knows how to cry, one has a liking for tears.” What is it that we expect of bereaved mothers and brothers and husbands and sisters if not to take their grief – pace Barthes, their defeat – and hold it “like a pause in music”?

A light without shadow
The inquest process permits little ambiguity. “We are therefore dealing”, Barthes writes, “with a real Human Comedy, where the most socially-inspired nuances of passion (conceit, rightfulness, refined cruelty, a sense of ‘paying one’s debts’) always felicitously find the clearest sign which can receive them, express them and triumphantly carry them to the confines of the hall.” But even if the result it yields is of no interest, this process does have real, significant consequences: “It is obvious that at such a pitch, it no longer matters whether the passion is genuine or not. What the public wants is the image of passion, not passion itself [...] what is expected is the intelligible representation of moral situations which are usually private.”

At first sight, this imperative might seem to be at odds with the role of the coroner, for even if we don’t know quite what he is supposed to do, we at least know how he is supposed to do it; and that is rigorously. In several cases, not least Dallaglio, the courts have said that a coroner should conduct a “full, fair and fearless investigation”, and that his inquest should ensure “the exposure of relevant facts to public scrutiny”. But this too finds an echo in Barthes. He writes (having witnessed, it would seem, if not the workings of the coronial system, at least the places in which they are accomplished): “hidden in the most squalid Parisian halls, wrestling partakes of the nature of the great solar spectacles, Greek drama and bull-fights: in both, a light without shadow generates an emotion without reserve.”

If, however, we imagine that what this remorseless light illuminates is the truth, we are mistaken: “nothing exists except in the absolute, there is no symbol, no allusion, everything is presented exhaustively. Leaving nothing in the shade, each action discards all parasitic meanings and ceremonially offers to the public a pure and full signification, rounded like Nature. This grandiloquence is nothing but the popular and age-old image of the perfect intelligibility of reality. What is portrayed by wrestling is therefore an ideal understanding of things; it is the euphoria of men raised for a while above the constitutive ambiguity of everyday situations and placed before the panoramic view of univocal Nature, in which signs at last correspond to causes, without obstacle, without evasion, without contradiction.” As of wrestling, so, perhaps, of the inquest: there is more to a death, Barthes might be saying, than can be uncovered by the coroner, even by means of a narrative verdict.