What’s the difference?

The Coroner’s Court is not like the Magistrates or Crown Court. The rules of evidence and the standard of proof are different. It is much more collaborative, rather than confrontational. It does not attribute blame. There are no defendants, charges or indictments. As such, many lawyers more used to the cut and thrust of criminal practice find it difficult to adjust in front of the Coroner. Particular competencies are required, as well as a real level of empathy and sensitivity.

The Chief Coroner for England and Wales, HHJ Teague QC, said: “It is important that the competencies for lawyers practising in inquests are met. They are important for effective advocacy and reflect the particular and unique challenges lawyers face in inquests. Also, since they helped develop them, coroners will be vigilant in ensuring those before them are meeting the expected standards.”. The competencies required are:

1. Keeping knowledge and understanding of the jurisdiction and procedure of inquests in the Coroners' Courts up to date and applying it effectively.
2. Communicating effectively with vulnerable parties.
3. Adapting communication and engagement to the purpose of inquests and the circumstances of the people who are involved.
4. Being aware of the support offered by other organisations and working with them, where appropriate.

What is the lawyer’s role?

As inquisitorial proceedings, inquests are limited fact-finding inquiries. Unlike most other court proceedings, they do not seek to determine criminal or civil liability. The advocate’s role in inquests is to help the coroner (and occasionally a jury) find facts as to:

(i)                  The identity of the deceased,

(ii)                When they died,

(iii)               Where they died,

(iv)               How their death occurred,

…all without trying to determine liability. This important difference means that lawyers need to:

• adapt their style of communication and engagement
• make sure that people understand the purpose of the inquest and their role within it
• make sure the style of advocacy and questioning is suited to inquisitorial proceedings and the sensitivity of inquests.

Vulnerable participants

Lawyers also need to think carefully about how they communicate and engage with vulnerable people. Vulnerability comes in many forms. Bereaved families play a central role in inquests and are often vulnerable because they are grieving the loss of a relative. Other interested parties such as emergency or prison staff can suffer trauma as a result of witnessing events. Persons involved in the proceedings can also be vulnerable because they:

(i)                  are unfamiliar with the inquest process

(ii)                do not have a lawyer to represent them, even if other parties are represented

(iii)               do not understand how the inquest process differs from other proceedings they have already been involved in or expect to take place, such as ombudsman investigations or criminal proceedings into the death of their relative.

Communication

The lawyer’s communication and engagement therefore needs to reflect the sensitive nature of the inquest. Their role is to assist the coroner and they are encouraged to be mindful of the following approach:

(i)                  Use plain language to make points and ask questions in a clear and simple way, so that the people involved in the inquest can understand them

(ii)                Avoid the use of idioms and unnecessary legal jargon, terminology or acronyms

(iii)               Repeat, explain or rephrase questions or points if they are not understood by the people taking part in the inquest

(iv)               Refrain from using inappropriate emotional language

(v)                Make sure questions and submissions are relevant to the purpose of the inquest and appropriate. In particular, recognise that whilst firm and robust questioning may sometimes be necessary, an aggressive and hostile style of questioning is not appropriate.

(vi)               Adapt questions and submissions to the circumstances and possible vulnerability of the people involved in the inquest. For example, challenges to evidence and the appropriateness of conduct may be required, but this should be proportionate to the nature of the issues in the inquest and take account of both family and witness vulnerabilities. Questions to vulnerable witnesses, children and the bereaved are likely to be different to questions to experts, such as pathologists, and professional witnesses, such as medical staff.

(vii)             Avoid duplication of areas covered by the coroner by making sure that your questioning explores areas not raised by them or in a way that goes further than the issues covered by their questioning.

When choosing a lawyer to represent at an inquest, an interested party ultimately needs to be comfortable with their representation, so asking for a face to face meeting or video call is recommended. Ask questions about the process and don’t be afraid to ask about the lawyer’s experience at inquests.

Evan Wright is a partner in JMW’s Professional Regulation team and regularly represents at inquests. He represents families, regulated professionals and organisations. Call (0345 872 6667 to speak to one of the team.