What happens when an inquest overlaps with the terms of reference of a public inquiry?

Introduction

On Wednesday 15 December, the Prime Minister appointed the Right Honorable Baroness Heather Hallett DBE as the Chair of the impending public inquiry into the UK’s preparations and response to the COVID-19 pandemic. More recently, Hugo Keith QC has been appointed as Leading Counsel to the inquiry.

The draft terms of reference, published by the Government on 10 March 2022, are wide ranging and take a modular/thematic approach to the issues, looking at matters such as: preparedness, decision-making, testing and contact tracing, the use of lockdown and other ‘non-pharmaceutical’ interventions, management in hospitals and care homes, as well as the economic response to the effects of the pandemic, to name but a few. (Draft terms of reference).

Given how many people have died during the pandemic, and the inevitable number of inquests that are likely to follow, what happens when the scope of a coroner’s duty to investigate a death results in an overlap between the terms of reference of a public inquiry? The answer is not straightforward, and a number of different legal routes can be chosen, with the issue of how to proceed becoming a hotly disputed legal issue between Interested Persons. 

The statutory regime

The statutory position that applies with respect to the suspension of an inquest where matters are pending investigation under the Inquiries Act 2005 is contained within Schedule 1, paragraph 3, of the Coroners and Justice Act 2009 (“the Act”), which states that:

Subject to sub-paragraph (2), a senior coroner must suspend an investigation under this Part of this Act into a person's death if—

• The Lord Chancellor requests the coroner to do so on the ground that the cause of death is likely to be adequately investigated by an inquiry under the Inquiries Act 2005 (c. 12) that is being or is to be held,

• A senior judge has been appointed under that Act as chairman of the inquiry, and

• The Lord Chief Justice has indicated approval to the Lord Chancellor, for the purposes of this paragraph, of the appointment of that judge.

• The coroner need not suspend the investigation if there appears to be an exceptional reason for not doing so.

Schedule 1, paragraph 4 of the Act offers further clarification, stating that:

• This paragraph applies where an investigation is suspended under paragraph 3 on the basis that the cause of death is likely to be adequately investigated by an inquiry under the Inquiries Act 2005 (c. 12).

• The terms of reference of the inquiry must be such that it has as its purpose, or among its purposes, the purpose set out in section 5(1) above (read with section 5(2) where applicable); and section 5 of the Inquiries Act 2005 has effect accordingly.

In addition to the above, Schedule 1, paragraph 5, of the Act then provides a general power of suspension, in the terms that:

A senior coroner may suspend an investigation under this Part of this Act into a person's death in any case if it appears to the coroner that it would be appropriate to do so.

What amounts to an ‘appropriate’ reason to do so, will be a matter for the coroner to determine, but Schedule 1, paragraph 9(11)(a) provides that following the resumption of any investigation suspended under paragraph 3 (see above), that “any determination under s. 10(1)(a) may not be inconsistent with the outcome of the Inquiry under the Inquiries Act 2005”.

In simple terms, the Act requires that where an inquest is suspended, be that as a result of intervention from the Lord Chancellor as per paragraph 3, or in accordance with the coroner’s general powers as per paragraph 5, that any conclusions returned at the resumed inquest must not be inconsistent with the findings of a public inquiry.    

Judicial comity

In the event that a coroner is not persuaded to exercise their discretion to suspend their investigations whilst a public inquiry is ongoing, it may be possible to argue that they risk offending judicial comity, as was considered in the case of R (on the application of Liberty) v The Prime Minister, The Lord Chancellor [2019] EWCA Civ 1761.

In this case, the Court of Appeal observed at paragraphs 29 to 31 of the judgment that:

“It is inefficient to deploy court and judicial time to dealing with the same issues.  More tellingly, it would give rise to the risk of conflicting decisions (….)”.

“Moreover, it is also not consistent with the principle of judicial comity for our courts to launch on an expedited and inevitably abbreviated review of precisely the same matters that were before the Scottish courts (…)”.

“As to comity, in the words of Lord Donaldson in British Airways Board v Laker Airways [1984] QB 142 (at 185-6): “Judicial comity is shorthand for good neighbourliness, common courtesy and mutual respect between those who labour in adjoining judicial vineyards”.

Put simply, the Court of Appeal ruled that one judicial office should not seek to reconsider the exact same matters that have already been considered by another judicial process; a position that could conceivably apply directly to an inquest with a scope that includes those matters that fall to be investigated within the terms of reference of a public inquiry. A persuasive argument for coroners to be reminded of in addition to judicial comity, is the sheer size, scale and volume of resources at the disposal of a statutory public inquiry, as compared with those available to a coroner.

The range of options

What, therefore, are the options available to coroners and Interested Persons alike, in the event that the scope of an inquest appears to overlap with the terms of reference of a public inquiry? Essentially, there are a number of possible scenarios that may play out.

The first is that the inquest will be suspended by the Lord Chancellor in accordance with Schedule 1, paragraph 3, of the Act.

In the event that this does not happen, the second possibility is that the coroner may choose to invoke his or her discretion to suspend the inquest in accordance with Schedule 1, paragraph 5 of the Act, on the basis that it would be appropriate for them to do so. Any such suspension by the coroner under this part of the Act would be subject to their determinations in terms of what they consider appropriate. It is, however, arguable that an ongoing public inquiry, that has invested great sums of public money and has wide ranging powers of investigation, may persuade a coroner that suspension would be appropriate where the terms of reference for that inquiry are likely to impact matters that fall within the scope of their inquest.

There are no guarantees that all coroners will be persuaded to exercise their discretion to suspend their investigation, even where there is potential overlap between the scope of their investigation and the terms of reference of a public inquiry. In such a case, legal arguments may need to be made that, by failing to do so, the coroner risks offending judicial comity, as outlined by the higher courts, and as such, they should reconsider their decision.

There will be occasions where the family of the deceased are understandably reluctant for their loved ones’ inquest to be suspended with no set timescale for resumption and they may therefore strongly oppose any legal argument that the coroner should consider taking such action to suspend. It may therefore be helpful for the coroner to liaise with the Chair of any ongoing public inquiry for their consideration of the circumstances in the event that he or she cannot determine how they should proceed. Such assistance from a higher judicial body may assist the coroner in coming to determinations that may not be welcomed by some of the Interested Persons involved.

Overlap in the Covid-19 public inquiry

Over 176,000 have now died in the United Kingdom with COVID-19 recorded on their death certificate. Within these figures are likely to be thousands of individual deaths that have been reported to the coroner and that may thereafter fall to be investigated by way of an inquest.

In light of the impending COVID-19 inquiry, consideration is likely to be needed in terms of how coroners are to approach deaths where the matters that fall for them to consider as part of the inquest scope are also those matters that might be considered by the COVID-19 inquiry and most importantly therefore whether an inquest should be suspended in these circumstances. On initial analysis of the draft terms of reference, it does not appear, given the wide-ranging and thematic approach adopted, that there will be many instances where the individual circumstances of a death that is required to be explored by the coroner (the who, when, where and how) will significantly overlap with the public inquiry’s work, which is more likely to be focused at a thematic, strategic-level analysis. The only situation we anticipate that may run the risk of potential overlap and will require careful consideration by the coroner is those inquests where Article 2 ECHR is found to be engaged, thus widening the coroner’s scope (‘how and in what circumstances’).

Whilst the Chief Coroner has already issued guidance, in May 2020, regarding the general approach that should be adopted by coroners with respect to COVID-19 deaths, it will be important for coroners to remain vigilant to further guidance either from the Chief Coroner or the inquiry Chair, Baroness Hallett, regarding how best to approach inquests that are likely to overlap with the terms of reference of the COVID-19 inquiry.

It is hoped that, were such guidance to be issued, it would eliminate the need for coroners to hear lengthy legal arguments on the issue of suspension. Guidance on this issue will in turn offer clarity to all Interested Persons and most importantly to the families of those who have lost loved ones as a result of the pandemic.