THOMPSONS SOLICITORS’ RESPONSE - March 2008
About Thompsons
Thompsons is the UK's most experienced trade union and personal injury law firm. It has a network of offices across the UK, including in the separate legal jurisdictions of Scotland and Northern Ireland.
Thompsons has represented families in many major tragedies such as Hillsborough, Piper Alpha, Kings Cross and Ladbroke Grove. The firm also acts on behalf of families of individuals killed in workplace accidents and regularly represents families who have lost members due to industrial diseases such as Mesothelioma and pneumoconiosis.
Last year the firm was involved in around 50 inquests either on behalf of the family of the victim of a workplace fatality or acting for a union member who, as an employee, was associated with an incident that led to a death. We currently act on behalf of a utility manager who has been charged with manslaughter by way of gross negligence.
We gave evidence to the Department of Work and Pensions and Home Affairs select committee on the Corporate Manslaughter Bill.
Our response
1. Do you agree that a coroner should have the power to make a report, even when it was not announced at the inquest?
Yes. Although it would be unusual, there may be circumstances where a coroner obtains information relevant to a death for which an inquest has already been held and which, had it been available, would have led to the Coroner making a report. Evidence may subsequently come to light indicating a pattern of events which was not appreciated at the time which, had it been, would have resulted in a report being made.
We consider the power of the Coroner to make such reports is in the public interest and should be at the Coroner’s discretion.
Such a report would usually be made public immediately by the coroner but we would propose that, if they are concerned to allow investigating authorities such as the police or HSE to initiate enquiries, they should be able to delay that publication for up to six weeks.
2. Is the time limit for a response about right? Should there be a greater sanction, and if so what, [other] than “naming and shaming” for a failure to respond to reports?
We consider 56 days is reasonable. If there are exceptional circumstances which justify a longer period then the draft rule makes ample provision for representations to be made to the Coroner.(Para 43B)
There should be a financial penalty for failing to respond. The fine should, in our view, be in line with that for breaches of Sections 2 and 3 of the Health and Safety at Work Act 1974.
A deliberate failure to respond by a company is a serious matter, undermining the objectives of Rule 43 and should be subject to criminal sanction in open court.
3. Do you agree with the general principle that coroner reports and responses should be shared with interested persons and relevant organisations?
Yes. A report is an important document because it aims to prevent other deaths and injury. It is also hugely important to a grieving family as it is evidence of an attempt to deal with the circumstances.
In order to achieve the objective of accident prevention all relevant parties should be provided with copies of the report. This would include, inter alia, the family of the deceased, his trade union (particularly if they continue to represent in the same or similar workplaces), other similar local businesses and local and national safety bodies and so on.
4. Can you think of any circumstances when it would be inappropriate to share reports and responses in this way?
No. Public interest outweighs any other interest. There is no justifiable basis for not sharing reports and responses.
5. Do you agree with the proposal for coroners to copy their report and any response to interested persons and to the Lord Chancellor? If not, how else could we ensure that these people receive this information?
Yes. All such reports should be sent to the Health and Safety Executive and should be published on the Ministry of Justice website along with any responses and evidence of action taken.
6. Do you consider that only a summary of reports should be published?
No. These reports are of significant public interest. We consider the full report should be published.
7. How could coroners and /or the Ministry of Justice disseminate lessons learned more widely and more effectively?
All reports and responses should be published on the Ministry of Justice website and also made available as a matter of course to the Health and Safety Executive. It is desirable that an annual analysis of such reports and response should be compiled and published, with indications of trends and actions taken.
8. Is there any particular information you think it would be useful to include in induction and in service training to provide to coroners?
There is an urgent need to train some coroners in how to deal with bereaved families. In Thompsons’ experience there is considerable inconsistency across the country and we call for consistency and training.
We have been involved in cases where the family have felt very upset at the way they were disregarded during the inquest process. In some cases the purpose of the inquest was not explained well to the family. In others there has been too little information made available to the family and their representatives.
On one occasion, a bereaved mother said she would like to see the photo of her son’s body and was refused. On another occasion a coroner refused to allow the jury in a work place fatality to see a pre accident photo of the deceased.
We consider coroners require consistent training on their broader public function, on how to make reports and how and when they make recommendations. It appears that coroners do not always regard this as an important or necessary part of their function.
We also have concern at the lack of knowledge of basic health and safety law amongst coroners, which leads to delay and confusion during the inquest and distress for the families. There should be health and safety training with annual updates.
9. We would welcome general comments on the proposed amendments to the Coroners rules 1984a, and on the way that these would work in practice.
There needs to be regulatory clarity as to what documents families and their representatives are entitled to.
At present disclosure is wholly within the discretion of the coroner. This results in inconsistency and often offence to family members as well as a less effective inquest.
Families and legal representatives of the deceased should as of right have access to the evidence available to the coroner including the post mortem report. Thompsons has on occasions been refused a post mortem report because the pathologist was giving oral evidence. This is not acceptable.
The coroner should be required to make available to the family and representatives of the deceased a list of witness statements, a list of relevant documents and copies thereof. A refusal to provide these affects our ability to properly prepare for and represent at the inquest.
Rule 43 and the draft amended rule should be changed to impose an obligation on the Coroner to consider whether there are any recommendations that could be made which might prevent other deaths or injury and to make a statement as to why not, if that is their intention. It should be a positive duty. As the rule is drafted, the issue of a report is left neutral and totally discretionary. This is not satisfactory.
10. Do you consider that the proposals set out in this paper will (i) help coroners to make more effective use of these reports and (ii) help to prevent future deaths? Are there any other matters you would like us to take into account?
A key issue is funding. Even in cases where there is positive co operation between the coroner and the deceased’s family representatives it is very clear that Coroners do not often have the facilities or resources to carry out their functions properly.
In some courts there are inadequate facilities for the family of the bereaved. In others the Coroner doesn’t have adequate facility for the provision of documents and photographs. In a recent case, Thompsons was asked to provide copies of the medical records to the medical assessor provided as the Coroner did not have the facilities to provide these.
The role of Coroners courts is already changing. Public expectations of inquests and Coroners are increasing. Failure to adequately fund Coroners courts and to recognise their important role in health and safety will undermine public confidence.
Localised funding results in inconsistency and in some cases affects the conduct of the inquest. It is in our opinion absolutely essential that there is an adequate system of national funding. If this does not happen we have considerable doubts as to whether the laudable objectives set out in the Coroners Bill and in this paper can be achieved.