INQUEST WITNESSES AND JURIESJonathan Auburn20 November 2017

Overview

witnesses

basics

2017 cases

witness handling

juries

basics

2017 cases

Witnesses – Basics – Coroners (Inquests) Rules 2013

RR12-16: disclosure of documents

R17: evid by video-link

R18: evid from behind a screen

R19: entitlement to examine wits

R22: self-incrimination

R23: written evid

Witnesses – Basics – Choice of wits

wide discretion re who to call, whether to call or not, whether to read

Donna LePage, [2012] EWHC 1485 (Admin): only interfere on Wednesbury basis or unfairness

Ahmed [2009] EWHC 1653 (Admin): not expected to call everyone, but must call sufficient witnesses to satisfy obligation of inquiry

Carol Mack [2011] EWCA Civ 712: in case involving alleged series of failings, not reasonable to call no wit who had direct knowledge & resp

Bentley [2001] EWHC 170 (Admin) – do not discount a witness simply on police officer’s view that witness unreliable

Witnesses - Basics

if late, be proactive in explaining

& provide revised date

ensure correct records are available at the

hearing

original records must be available

photographs, props and diagrams can also assist

PROVIDING DOCUMENTS

Witnesses - Basics

DRAFTING EVIDENCE

chronological, logical

structure

factual & accurate

avoid complex phrases

check all imp matters covered

have relevant contemp

notes

avoid assumptions

Witnesses – Basics – GMC Guide

Guide to acting as a witness in legal proceedings, GMC 2013

include all relevant info

take all reasonable steps to check accuracy

clear and concise

based on contemporaneous clinical records & notes

-clearly distinguish between fact & subsequent opinion

Witnesses – Basics – Rule 23

not possible to give evidence

sufficient reason why maker should not attend

sufficient reason to believe maker will not attend

evidence unlikely to be disputed

Shafi v Senior Coroner for East London [2015] EWHC 2106

HELD: error in use of R23

Coroner not attempt to call wits

from Dubai

UK tourist had died in

police custody in

Dubai

Coroner admitted evidence

from Dubai under R23

Shafi (ctd)

Coroner had not sufficiently explained need for use of R 23

only said that there had been discussions with

some of the Dubai authorities

not explain who held discussions, with whom, what said, whether any wits unwilling to attend,

views of Dubai govt

word "attend" in Rule 23 was not restricted to attendance in person

attendance may be by telephone or video link or internet video calling

failure to take all reassteps to secure

attendance of wits meant had been

insufficiency of inquiry

Witnesses – Relevant guidance

• fisclosure & PII (Worcestershire case)

• applic can be made under 2009 Act

• 2 stages: 1st to Coroner alone, decide scope/wits

CC Law Sheet #3

• translators & interpreters

• may only provide to IPs as wits

• if not, for Coroner to decide how achieve fairness

CC Guidance #21

• Coroners & the media

• general rule is open hearings

• applications for anonymity & reporting restrictions

CC Guidance #25

Witnesses:

2017 cases

Maguire v Asst Coroner for West Yorks[2017] EWHC 2039 (Admin)

HELD: JR refused

Cor ruled risk of harm outweighed

value of evid

teacher murdered by 15yo pupil at school

family wanted

other pupils to give evid

Maguire (ctd)

Cor right to weigh potential value of evid to potential

harm to wits

harm in revisiting incident, feelings of blame

police interviews largely covered the

evid

Cor entitled to rely on generalised harm rather than specific

indiv assess’t

conc Cor reached was reas open to

him

Gribben’s Applic for JR [2017] NICA 16

HELD: JR failed (appeal)

soldier S1 had left juris

& did not give evid

issue of past

incidents of lethal force

soldiers shot 2 IRA members

Gribben (ctd)

impossible to know whether S1 would

return

Coroner had taken steps to compensate

for absence

Coronr had weighed the comepetiong

factors

Coroner also invited counsel to address jury

on prior incident

decision reasonable

Owen’s Applic for JR [2017] NICA 43

HELD: no br of A2; relevant that Ombud also investigating

need to respect

confidentiality of archive

SoS declined to disclose archive of

IndepMonitoring Commsn

death of man believed

murdered by paramilitaries

WITNESSES:

PRACTICAL WITNESS

HANDLING

Advice on preparation for giving evidence

re-read reports and the relevant medical records before the inquest

mark up notes with tabs for important pages

re-familiarize self with relevant local policies

ensure up to date with changes in practice and procedure

including those flowing from any SI report

Giving wits an idea of what to expect

dress appropriately

watch part of another case? same case?

familiarity with records but explain no need to memorize

know where to find info

Advice on giving evidence

listen to Q, not what expecting to be asked

if asked Q based on a doc, take time to read doc

direct answers to Cor or jury, not lawyer

if Cor writing, watch pen

if there is a doc, use it cf pure memory

do not stray outside field of knowledge

INQUEST

JURIES

Juries – When used

s.7(1) CJA 2009: presumption held without a jury unless the case falls within s.7(2), or s. 7(3)

s.7(2) mandatory provisions: custody (violent, unnatural, unknown), police, service police,

notifiable accent etc

s.7(3) discretion: “if the senior coroner thinks that there is sufficient reason for doing so”

R (Fullick) v HM Senior Coroner for Inner North London [2015] EWHC 3522 (Admin): vital to have scope of inquest resolved before deciding on this

Jury - Discretion

PERMISSIBLE FACTORS

wishes of family: Paul,

Fullick

whether sim to mandcateg:

Fullick, Paul

Cor alone can give more reasoned decision in detailed case: Collins, Paul,

Francis

npw: Sean Benton, 2017

involvement of State agent:

Fullick, Shafi

Jury - discretion

FACTORS THAT ARE PROBABLY

NOT RELEVANT

additional cost

possible logistical problems

complexity & passage

of time

for: Collinsag: Sean Benton,

2017

Juries:

2017 cases

Gribben’s Applic for JR [2017] NICA 16

• considered above re witnesses

• also raised issue re juries

• challenge to decision to use a jury – rejected

• Cor had addressed issue of safeguards by Q’g

pool of potential jurors

• specific allegation of prejudicial conduct

considered & rejected

Inquest into death of Private Sean BentonRuling by HH Peter Rook QC, 28.6.17

ruling on discretionary

power

thorough analysis of

facors

goes thru all case-law

R (Hamilton-Jackson) v Assist Coroner Mid Kent &Medway[2016] EWHC 1796 (Admin)

• prisoner with history of mental health problems, self harm

• prison service's national policy instructed staff to open a

care plan if indication prisoner at risk of self-harm

• this prison also had a local policy, to open a plan upon

any incident of self-harm

• 2 care plans had been opened previously

• nurse noted cut on prisoner’s wrist, but said was

superficial and did not open another plan

• two days later prisoner hung himself in cell

Hamilton-Jackson (ctd)

• HELD: Cor misdirected jury over Q whether care plan should been opened

• addressing that Q required an understanding of the meaning of both

policies (national & local), how policies operated and whether inconsistent

• Coroner had failed to direct the jury as to the meaning of the policies

• meaning of a policy is not a matter of fact to be determined by a jury

• Coroner failed to distinguish b/n meaning of policies & operational

implementation

• error to leave jury to decide whether there was a "dichotomy" between the

policies & whether they inconsistent

• Chief Coroner: coroner should have done more to help jury with objective

view of meaning of policies rather than leave to them what he called the

polarity of the dichotomy; coroners should do best to avoid using language

not in everyday use & might not be clearly understood, e.g. "polarising the

dichotomy"