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16 October 2016 0 Comments
Posted in Medical Negligence, Opinion

Inquests: Disclosure of evidence

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In preparation for an Inquest, disclosure refers to the process of information/evidence being made available to the coroner and, thereafter, information being made available from the coroner to ‘Interested Persons’.

The coroners’ powers were historically confined to calling witnesses to attend a hearing to give oral evidence by way of a summons. Under the old rules, coroners had virtually no powers to require disclosure of certain documentation or even to insist on witness statements being prepared for use during their inquiry into someone’s death.

The current rules

Fortunately, when the updated legislation came into force in July 2013 (The Coroners’ and Justice Act 2009), coroners were given an improved power to insist on evidence being produced.

This takes a number of forms:

  • coroners have the power to require evidence to be given at the inquest;
  • coroners are now entitled to request a written witness statement during the investigation, whereas this was previously only done voluntarily;
  • the coroner has additional powers of entry, searching and seizure if so required.

These were very welcome changes to the statutory provisions, as it gives coroners greater powers to obtain information or documentation that will assist in their inquiries.  Anyone found intentionally suppressing or concealing a document believed to be relevant to the inquest can be fined or even imprisoned.

There remains an exception in respect of materials that are considered privileged or if disclosure of certain information is deemed to be contrary to the public interest.

What does this mean for me?

The duty of disclosure set out in Part 3 of the Coroner’s (Inquest) Rules 2013 means that all relevant evidence should now be disclosed to the family in advance of, or during, an inquest in all cases.

The coroner can only pass on documentation that is within their possession and so the solicitor acting on behalf of the family will need to be alert to any documentation which may be relevant to the inquest so that the coroner can request it.

A ‘document’ is defined as ‘any medium in which information of any description is recorded or stored’. This can therefore include items such as photographs, CCTV footage and paper documents.  In practice, disclosure is also made by electronic means and documents are sent by email to Interested Persons or representatives.

There is no charge for disclosure during the coroner’s investigation but there may be a charge for disclosure after the investigation has finished.

Rule 13 sets out certain documents that must be disclosed in all but the most exceptional of circumstances, including:

  • Any post mortem examination report;
  • Any other report that has been provided to the coroner during the investigation;
  • Any recording of the inquest;
  • Any other document which the coroner considers relevant to the inquest.

Rule 14 (B) entitles the coroner to redact a document if appropriate and Rule 15 entitles the coroner to refuse to provide a copy of the document in any of the following situations:

  • statutory or legal prohibition on disclosure;
  • the consent of the author or copyright owner cannot be obtained;
  • the request is unreasonable;
  • the document relates to criminal proceedings (whether underway or contemplated);
  • the coroner considers the document irrelevant.

In inquests involving the police, they are obliged to hand over to the coroner all of the material that touches upon the death.

The benefits of disclosure

It is widely recognised that early and full disclosure is required if the coroner’s inquiry is to be carried out thoroughly and properly. Proper disclosure allows the parties to narrow the relevant issues at an early stage and helps to assuage any suspicions often held by the deceased’s family members as to any foul play or cover up.

There is a presumption in favour of as full disclosure as possible in all cases. This has been supported by case law in recent years [Jordan (AP) v Lord Chancellor and another [2007] UK HL 14 para 440].

Taken alongside the trend in coroners increasing use of pre-inquest review hearings, early disclosure can help to ensure that an inquest hearing is not unduly delayed and that there are no wasted costs arising from documentation that is outstanding.

If you have any questions for Ali or our specialist Inquests team, please contact us today.

0800 923 2080     Email

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