Addressing the disparity in representation at inquests — what can organisations and their representatives do?

A recent study undertaken by “Voicing Loss” in collaboration with the Institute for Crime & Justice Police Research and the Centre for Death & Society explored the experiences of bereaved families during inquests and sought to shine a light on the shortfalls of the coronial process.

Inquests are, strictly speaking, fact-finding investigations led by a coroner to establish who the deceased was, and where, when and how they died. They are intended to be inquisitorial rather than adversarial proceedings, but the reality is often very different.

The Voicing Loss researchers undertook interviews with bereaved families and professionals regularly involved in inquests such as lawyers, coroners, and police officers. The responses from bereaved families provide an enlightening insight into what the inquisitorial process is really like for them. Respondents reported:

• Struggling to navigate parts of the process like preparing statements and questioning witnesses without legal advice.
• Feeling marginalised and excluded by proceedings which they felt were oriented around lawyers and Interested Persons.
• Finding proceedings adversarial, rather than inquisitorial.
• Feeling intimated by large groups of representatives who attended to act for Interested Persons, particularly when they were unrepresented or had small legal teams.
• Feeling overwhelmed by large volumes of disclosure which was inaccessible or provided to them late.
• Finding post-mortem and other sensitive evidence distressing.
• Feeling that coroners, coroners’ officers and other professionals were not compassionate or sensitive.
• Encountering dismissive or defensive attitudes by Interested Persons towards institutional failings and learning.

Funding for representation

Many people are surprised to learn that, notwithstanding the potential complexities of inquest proceedings, legal aid funding for families is not readily available. Legal aid funding may be available under the “Exception Case Funding” scheme where:

1. The death occurred in circumstances where an agency of the state owed the deceased a duty of care (an Article 2 inquest); or
2. There is a significant public benefit.

The bar for legal aid representation in inquests is high and the application process for funding is far from straightforward. For this reason, it is not uncommon for families to be unpresented. Conversely, other Interested Persons often have access to in-house legal teams or external representation.

There have long been calls to make legal aid funding for inquests more accessible. The Labour Party manifesto pledged to introduce legal aid funding for “victims of disasters or state-related deaths”, but it has yet to be seen how this will work in practice.

Considerations for Interested Persons

For Interested Persons and lawyers who regularly find themselves in the coroners’ courts, the Voicing Loss study serves as an important reminder of how daunting and overwhelming inquests can be for bereaved families, particularly those who are not legally represented. 

With the findings of the study in mind, what can any organisation involved in an inquest, and its representatives and lawyers, do to make the inquest process better for bereaved families?

• Behave respectfully and in a way that is commensurate with the gravity of the occasion. This applies not just in the courtroom, but anywhere in or around the court building. What might feel like another day at work for some is a very significant occasion for others.  
• Ask families how they would like the deceased to be referred to and be respectful and engaged during pen-portrait evidence.
• Be compassionate and courteous during all interactions with the family and witnesses.
• If it is appropriate, consider whether you can offer answers to questions raised by the family, even if they are not strictly speaking within the scope of an inquest. For many families, the inquest will be the only opportunity they have to ask any questions about what happened.
• Questioning of the bereaved by representatives for Interested Persons should be handled with patience and compassion. Questions should be in keeping with the inquisitorial nature of the process.
• Lawyers and witnesses should speak in straightforward language and avoid using unnecessary technical and legal jargon. If you think technical jargon is necessary, ask if it would be helpful to explain it.
• Numbers of attendees should be limited to those who are strictly necessary.
• Lawyers and witnesses should be mindful when addressing sensitive points of evidence, such as the circumstances of the death or post-mortems. Consider providing a warning to families before raising such evidence, so that they have an opportunity to leave the room if they wish. Be alert to whether evidence is causing the family distress, particularly if they are attending remotely. 
• Give adequate consideration to whether there are any points of learning arising from the death before the inquest hearing and take steps to implement meaningful change.

These simple steps ought to help organisations to prepare their witnesses and consider institutional learning in advance of an inquest, whilst keeping families in mind.

Read the Voicing Loss study.