CORONERSHIP UNDER CHALLENGE

The Evolving Institution of the Modern Coroner

Ian Freckelton SC *

deaths in corfu

In October 2006 Robert and Christianne Shepherd, aged six and seven, from Wakefield, West Yorkshire, were overcome by fumes while on a half-term break to Corfu. Mr Shepherd, the children’s father, and his friend, Ms Beatson, who had taken them on the holiday, both fell into comas and were admitted to hospital, but survived. It is believed the tragedy was caused after carbon monoxide fumes leaked from a next-door room into the bungalow apartment the family were staying in at the Louis Corcyra Beach Hotel, in Gouvia. The response from Greek authorities was to charge two Thomas Cook representatives from Britain and 10 Greek citizens with manslaughter as a result of the deaths.

Tourism minister Fanni Palli-Petralia is reported to have announced that the Louis Corcyra Beach Hotel would lose its permit permanently if a police investigation found hotel officials were responsible for the deaths.[1] On 25 June 2009 the hearing into the criminal charges was adjourned because of difficulties in organising the attendance of all relevant persons.[2] [Editor's Note: At the time of preparing the CD-Rom of Collated Papers after Corfu 2009, the cases in Corfu were still pending].

Whether the criminal charges brought by prosecutors in Corfu and the threat of loss of hotel licence are the best means of arriving at the truth of the circumstances of the children’s death is arguable. Undoubtedly, the bringing of the manslaughter charges will have a deterrent effect on hotel operators in Corfu and provide a fillip for English tour organisations to do health and safety checks on hotels at which they arrange for their clients to stay. One of the issues that is open to doubt is whether the criminal process is the best means to achieve these objectives, unless any negligence involved has been at a high level.

It may well be that it will be the inquest into the children’s deaths convened by the West Yorkshire coroner, David Hinchcliff, uninhibited by considerations of criminal liability, which will most effectively uncover the circumstances which led to the children’s deaths and make recommendations directed toward reducing the likelihood of other such deaths – in Corfu and elsewhere.

The tragedy of the Shepherd deaths raises starkly the contrast between the principally criminal and punitive responses of jurisdictions without the tradition of coronership and the role of the unique institution of coronership in contemporary health and safety prevention. What it raises at a more subtle level is how coronership can most effectively achieve what we as a community now require of investigations into unexpected and unclear circumstances of death.

CORONERSHIP IN PERSPECTIVE

Since its origins in the Anglo-Saxon and early mediaeval periods,[3] many different phases of coronial law reform can be identified. Throughout its existence, though, coronership has proved to be a remarkably persistent and fluid institution, adjusting its shape and focus from revenue-raising for the Crown, administering important aspects of outlawry, dealing with Royal Fish and shipwrecks, facilitating the provision of compensation to relatives of deceased persons via deodands, and extending in some places into the investigation of not just homicides but fires, explosions, disasters and accidents.[4] From the 18th century its principal role has been to clarify the public record in relation to the causes and circumstances of unexpected, unnatural and violent deaths.

While the focal point of coroners’ investigations in the 19th century tended to relate to society’s accommodation between industrialisation and the vulnerability of workers and others who were institutionalised, such as those in insane asylums and poor houses, the focal point of much coronial jurisprudence in recent decades has been urban disasters, environmental deaths and deaths in prison and psychiatric confinement.

In the early phase of the 21st century the relevance and role of the institution of coronership have started to be questioned. Thomas, Straw and Friedman[5] in 2008, for instance, have argued that:

The development of the coroner’s office has lagged considerably behind the development of society where, as the political system has been democratised, the demands are to assuage public anxiety, to provide families and individuals with a right to rigorous inquiry into the deaths of their family members, to learn lessons to prevent deaths in future, and to uncover unjust, racist or corrupt practices in relation to deaths of those in the custody of the state, without which cultures of violence, neglect, racism or indifference continue.

It has been suggested that a number of the attributes of the modern coronial process are counter-therapeutic. For instance, in September 2009, the Australian Coronial Reform Working Group published an issues paper, Australian Coronial Reform – the Way Forward, contending that “many families who have lost loved ones experience the coronial process and its aftermath as traumatic, mystifying, frustrating and disempowering. Families need legal representation and other support in order to be able to exercise their human rights to fully participate in the inquest, yet legal assistance is often not affordable, and appropriate support is not always available.”

Coroners now are but one of many forms of death investigation. However, they are legally distinctive. They are situated anomalously as an inquisitorial form of justice within the larger sea of adversarial processes in most countries where they are to be found. Coroners adjudicate neither civil nor criminal allegations by plaintiffs or the state but “simply” make findings about deaths (and, in some places, other phenomena) and, where the circumstances justify it, proffer comments and recommendations in the interests of public health and safety. Coroners are judicial officers (for the most part at the lowest end of the judicial hierarchy) but to a degree function as public health officials in their (largely extra-legislative) role to facilitate prevention of preventable deaths.

Not surprisingly, then, considerable tensions have emerged about where the coronial process should start and finish, how it should operate, what role bereaved family members should play in it, and the societal objectives which it should attempt to satisfy. While in Australia, Canada and, latterly, New Zealand, coroners’ offices have been centralised and professionalised, the modernisation process has taken much longer in the United Kingdom and in Ireland.

Victoria’s Coroners Act 1985 (Vic)[6] marked the commencement of the previous era of reform to coronial legislation around Australia and New Zealand. In succession reforming legislation was enacted:

• the Coroners Act 1988 (NZ);
• the Coroners Act 1997 (ACT);
• the Coroners Act 1993 (NT);
• the Coroners Act 2003 (Qld);
• the Coroners Act 2003 (SA);
• the Coroners Act 1995 (Tas); and
• the Coroners Act 1996 (WA).

In addition, a series of reforms was made to the Coroners Act 1980 (NSW), leading in September 2009 to the Coroners Act 2009 (NSW). As part of this process, in most places the power to commit for criminal trial was removed, relics of the ancient jurisdiction were excised, coronial juries for the most part were abolished, legislative provisions were streamlined and, throughout most of Australia, State or Chief Coroners with dedicated coroners and coronial offices, some of them supported by institutes of forensic pathology or forensic medicine, were constituted.

However, during the same period attempts to sever coroners’ courts from other magistrates’ courts started and lobbying commenced to staff them (or associated entities) with significant numbers of investigative staff and specialist (mostly medical, dental and scientific) professionals. Aside from issues of principle, this had major cost and administrative repercussions. Debates intensified about the assertion of jurisdiction by some coroners to investigate aggregations of deaths and to construe broadly the meaning of “circumstances of death” and “how death occurred”, as well as regularly to offer recommendations for change to what they identify as dangerous practices. Appellate litigation involving coroners’ findings, and even on some occasions coroners’ comments and recommendations, became more common. In addition, the ancient “rider” role of the coroner, whereby proposals were advanced for reduction of potentially lethal risks, became in some places a central part of coroners’ focus and public expectation[7]. Public awareness of the decisions of coroners reached new levels of intensity but coroners’ decisions continued to be largely away from orthodox legal vision – coroners’ law reports do not exist (save in Australia on the National Coroners Information System, which is not publicly accessible) and few coroners’ decisions are yet available on the internet[8].

This address situates current changes and proposed changes to coronership within an international context. It acknowledges that coronership is not and should not be an institution exempt from criticism and accountability. It scrutinises recent developments in coroners’ legislation and identifies the major issues that confront contemporary coronial law reform.

New Zealand

On 1 July 2007 a new phase of reassessment of the role of the modern coroner commenced with the Coroners Act 2006 (NZ) coming into operation in New Zealand[9], after an influential report of the New Zealand Law Commission on the subject.[10]

In arguing for modernisation of the coroner’s jurisdiction in New Zealand, the Law Commission observed:

The inquiries of the Coroner should not be limited to matters of mere formality, but should be of social and statistical significance in a modern community.

Recent research into the investigation and analysis of accidents and death has revealed the crucial importance of not focusing exclusively on what seems to be the immediate cause of a fatality: the primary causes can and frequently do lie much deeper. In this context it has progressively become evident that the fundamental causes of fatalities, and therefore the measures needed to avoid recurrence, can require a much broader perspective than the one currently adopted by Coroners.

With certain notable exceptions … deaths tend to be considered in isolation. There is no system for appraisal of the background factors contributing to the death to determine whether it is an isolated episode or an example of a deeper seated problem. The Commission considers it imperative that an investigation into the possibility of fundamental causes be a regular exercise of the Coroner’s functions. A true appraisal of apparently insignificant incidents can reveal, and then remove or reduce, the risk of disaster. This is made difficult at present, however, because there is no system for the collation and appraisal of one Coroner’s findings in relation to others. [11]

The new legislation was not uncontroversial, though, the New Zealand Greens, for instance, airing anxiety about the approach of some coroners:

Most of the work done by coroners has been extremely good, valuable, and important, and we welcome that work. However, I think it is fair to say that in this country we have seen some coroners view their position as a platform for airing their personal views on political matters that are entirely unconnected to the case before them, outside their area of competence, and unsupported by evidence. They are matters that are entirely outside their area of expertise or their jurisdiction. [12]

Justice Baragwanath, in an orientation to new coroners in June 2007, emphasised the need not to be distracted from what he described as “the bitter facts” that, until the new legislation, coroners “were under-resourced, lacked both leadership and proper systems, and were insufficiently valued within the community”.[13]

The Coroners Act 2006 (NZ) has sought to address these deficits by modernising the institution of coronership in New Zealand, creating a centralised system including a Chief Coroner and a number of full-time coroners similar to that existing in jurisdictions in Canada and Australia.[14] Until this system came into force on 1 July 2007, New Zealand coroners mainly worked part-time, often in isolation, and with limited formal administrative support and training.[15] There was a perception in many quarters that the coronial system did not take enough account of cultural beliefs and values, especially those of Māori. There were also reports that coroners’ decision-making was at times patchy in quality and inconsistent in approach. Some contended that coronial practices had been insensitive to the needs of families, in relation to the treatment of the deceased, and the removal and retention of body parts.

The Coroners Act 2006 (NZ) is intended to address these concerns by:

• establishing the office of the Chief Coroner to provide leadership and coordination (s 7);
• moving to a smaller number of mostly full-time, legally qualified coroners (s 103);
• ensuring families are notified of significant steps in the coronial process (ss 22, 23);
• introducing a specific regime for retention and release of body parts and body samples (ss 47, 48); and
• enhancing inquiry and inquest processes (ss 57-91).

The overt wish of the legislation is that families derive a benefit from the reforms. The new Act broadens the definition of “family” to take into account modern family arrangements and cultural relationships (s 9), and allows families to appoint a representative to liaise with a coroner (s 22). The Act also requires coroners to perform their duties without delay (s 5), mandates the coroner to notify families at significant stages of the coronial process (ss 22, 23), allows families to review and touch the body of a deceased person with a coroner’s authorisation (s 25), and gives families the right to object to a post-mortem examination if the death does not appear to be suspicious (s 33).

The Coroners Act 2006 (NZ) introduces a new regime in relation to retention of body parts and tissues (s 48). It attempts to ensure that body parts and body samples can be taken only for the purposes of medico-legal autopsy, that families are notified of the proposed retention (s 50), and that their representatives can request the return of the parts and samples (s 50). It also restricts how retained parts and samples can be used (s 56). The new provisions balance the value of retaining tissues for later examination against family members’ desire to have tissues returned for cultural, spiritual and other reasons.

The orientation of the Act is overtly prophylactic. Section 3, for instance, provides that the purpose of the Act

is to help to prevent deaths and to promote justice through –

(a) investigations, and the identification of the causes and circumstances, of sudden or unexplained deaths, or deaths in special circumstances; and

(b) the making of specified recommendations or comments … that, if drawn to public attention, may reduce the chances of the occurrence of other deaths in circumstances similar to those in which those deaths occurred.

The purposes of an inquest are cognate (s 57).

Section 58(1) permits a coroner in the course of, or as part of the findings of, an inquiry to comment on the conduct of any person “in relation to the circumstances of the death” concerned. Protections are created against comments being made without due notice to family members and those who might be the target of the commentary. The coroner is precluded from making adverse comments without indicating an intention in advance to do so, adjourning the inquiry for at least five working days and notifying every member of the deceased person’s immediate family who during the adjournment requests the coroner to do so of the proposed comment, and giving every such person a reasonable opportunity to be heard in relation to the proposed comment. There are comparable provisions in terms of giving the person or entity the subject of the proposed comment notification and a reasonable opportunity to be heard in relation to the comment.

The United Kingdom

In the aftermath of the controversies surrounding the murders committed by Dr Harold Shipman[16] there was a new impetus for reform of the uncoordinated system of coronership in the United Kingdom.[17] Proposals for change were drafted by Dame Janet Smith,[18] the Luce Committee[19] and the Home Office.[20] This led to the Coroners Bill 2006 (UK),[21] considerable debate, redrafting[22] and then further redrafting in 2008.[23] The movement toward fundamental change has been fraught. As Baker and Cordner[24] have pointed out, it is necessary that any revised system for death investigation be medically feasible as well as that there be a publicly acceptable realignment of responsibilities.[25]

The essence of the proposed reforms includes giving bereaved people a clearer legal standing in the coronial investigation process, including provision of rights to appeal.[26] A “coroner’s charter” is proposed to set out guidelines and standards and to make clear what services those who are bereaved are entitled to expect[27]. As in New Zealand, the Bill also establishes a Chief Coroner (cl 56) with support staff and an advisory Coronial Council (cl 63). A Chief Coroner will be responsible for developing national standards and guidance, supporting coroners, advising government, considering appeals against coroners’ decisions and responding to complaints.

The Coroners Bill 2006 (UK) also establishes a service of full-time coroners, along the lines of that existing in Australia, New Zealand and most parts of Canada and it modernises the processes for coroners’ investigations and inquests. It gives coroners new powers to obtain evidence they need for investigations. It provides new entitlements to impose reporting restrictions where no public interest would be served by publicising the details of a death or investigations into it. Also at the heart of the proposed changes is the provision that coroners be provided with additional medical expertise to help to inform their decision-making with a “new chief medical adviser to the coroner services to whom the Chief Coroner can look for advice on strategic medical issues, and each coroner will be funded to buy in medical support, in consultation with the local authority, which is best suited to meet local needs”.[28]

The explicitly preventative orientation of the 2006 Bill is modest, the purpose of coroners’ investigations being stated to be to “ascertain (a) who the deceased was, and when, where and by what means he came by his death, and (b) the particulars required by the 1953 Act to be registered concerning the death” (cl 10(1)). Clause 12 of the 2006 Bill enables a “senior coroner” who believes that “action should be taken to prevent the recurrence of fatalities similar to the death or deaths the subject of his investigation” to report the matter to a person with power to take such action, as well as the Chief Coroner. For the most part, coroners’ inquests will continue to be heard without a jury save where the senior coroner has reason to suspect that the deceased died in prison or otherwise lawfully detained in custody, or that the death resulted from an act or omission of a police officer in the purported execution of her or his duty (cl 13(3)). Enhanced appeal provisions are created (cll 60-61).

The 2008 revisions to the Bill strengthened cl 12 in an important and radical respect by requiring an organisation that receives a report from a coroner to respond. One role of the Chief Coroner is to monitor the reports and the responses received and provide a summary of them in an annual report to the Lord Chancellor who in turn will lay the report before Parliament.

Somewhat surprisingly, the 2008 revisions to the Bill in relation to the use of jurors proposed returning to the status quo in England and Wales whereby inquests, including those dealing with workplace deaths, must be determined by a jury. The revisions also made provision for an obligation on the part of registered medical practitioners to notify the coroner of relevant deaths.

Ireland

In 2007 important moves were made toward reform of coronial law in Ireland with the introduction into Parliament of the Coroners Bill 2007 (Ir). In part this implements recommendations of the Coroners Review Group[29] which in December 2000 recommended a comprehensive overhaul of the coroner service with regard to the legislation governing the work of coroners, the support services available to them and the structural organisation of the coronial service.[30] This reform effort was also generated by the Report of the Coroners Rules Committee in October 2003.[31] The Bill is proposed to repeal the Coroners Act 1962 (Ir) and update provisions taking into account the jurisprudence of the European Court of Human Rights. It also responds to developments in other common law jurisdictions. It provides a statutory framework widening the scope of the inquest from investigating the proximate medical cause of death to establishing the circumstances in which the deceased met her or his death. The 1962 legislation has been interpreted restrictively in terms of an investigation of ‘‘how’’ the deceased person died to mean the proximate medical cause of death.[32] The Coroners Review Group recommended the extension of the remit of the coroner to the investigation of the wider circumstances surrounding a death and that it be expressed in positive terms in any new legislation. Clause 46(1) provides:

The purpose of an inquest shall be to –

(a) establish –

(i) the identity of the deceased,

(ii) when and where the death took place,

(iii) in so far as practicable, the circumstances in which the death took place including the medical cause of death, and make findings in respect of these matters, and

(b) return a verdict.

Coroners’ investigations are stipulated to be “inquisitorial in nature” (cl 27(1)).

There is an important articulation of a preventative role for the coroner (cl 54) in terms of both the power of the coroner to make recommendations and the obligation of those the subject of them to respond to them:

(1) An inquest may make a recommendation designed to –

(a) prevent the recurrence of a death similar to that in respect of which the inquest is being held;

(b) prevent other hazards to life disclosed by the evidence at the inquest;

(c) bring to the attention of any person who may have power to take appropriate action to remedy any deficiency in a system or method of work which is disclosed by the evidence at the inquest and which may give rise to public concern.

(2) Where an inquest has addressed a recommendation to a Minister of the Government, a local authority or a statutory body, the Minister, local authority or body shall issue a response to the recommendation to the coroner concerned in writing no later than 6 months from the date of receipt of the recommendation and shall indicate the measures, if any, taken or proposed to be taken on foot of the recommendation.

(3) A recommendation shall not be framed in such a way as to appear to determine any question of civil or criminal liability in respect of any named individual.

A distinctive provision in the legislation is cl 48(1) which provides:

A coroner conducting an inquest shall not inquire into a relevant matter unless he or she is satisfied that the likely cost and duration of the inquiry into the matter is likely to be justified by the importance of the facts that are likely to be established in consequence of that inquiry.

The other main objective of the Bill is to establish a new full time Coroner Service (cl 9), comprising a Chief Coroner, Deputy Coroner, coroners and a lesser number of part-time assistant coroners (cl 10) and organised on a regional basis (cl 12). This will replace the 48 current coroners throughout Ireland.

Ontario

Justice Stephen Goudge reported in October 2008 to the Ontario Government in relation to issues arising from problematic evidence given in multiple cases by a paediatric pathologist, Dr Charles Smith.[33] He made multiple recommendations for reform to the Ontario coronial system. He proposed “major institutional change” in the Office of the Chief Coroner for Ontario to assure the public of effective oversight of both the forensic pathology service and the coronial service. He recommended the creation of an Institute of Forensic Medicine and Science and a Governing Council to which the Chief Coroner would be responsible for oversight of strategic direction and planning, budgetary matters, senior personnel matters, and administration of the public complaints process.[34] He proposed that the Chief Forensic Pathologist also be accountable to the Governing Council for the operation and management of the Ontario Forensic Pathology Service.[35] He advanced a number of recommendations in relation to the proposed complaints process to ensure its timeliness, responsiveness, fairness and accountability.[36] The early indications are that these recommendations are likely to be implemented.[37]

Victoria

In Victoria the Coroners Bill 2008 (Vic) was introduced into the Legislative Assembly on 10 July 2008, some two years after the Law Reform Committee of the Victorian Parliament had recommended sweeping reforms to the role and responsibilities of coroners.[38] The Coroners Act 2009 (Vic) is scheduled to come into force on 1 November 2009[39].

Deputy Premier and Attorney-General, Rob Hulls,^[40] announced that the legislative changes were part of the Labor Government’s broad coronial reform strategy designed to reduce the number of preventable deaths and improve communication with, and services to, families in metropolitan, regional and rural Victoria. Under the strategy, facilities will also be upgraded at the Coronial Services Centre and in regional areas and education and training will be improved across the coronial system. Mr Hulls stated: “One of the key aims of the reforms is to reduce the number of preventable deaths in Victoria.” A purpose of the legislation is stipulated to be “to contribute to the reduction of the number of preventable deaths and fires through the findings of the investigation of deaths and fires, and the making of recommendations by coroners” (s1(c)). Under the proposed changes, the Coroners Court is designated “a specialist inquisitorial court” (s1(d)). The coroner is enabled to make recommendations (s72) to any person or organisation on “any matter connected with a death or fire which the coroner has investigated, including recommendations relating to public health and safety or the administration of justice”, rather than being restricted to Ministers and public statutory authorities. The work of the coroner will be underpinned by a 20-person prevention unit to assist in the development and evaluation of recommendations.

Mr Hulls said the Coroners Act 2008 (Vic) will also allow the coroner

to better communicate with grieving families affected by the investigation of sudden, unexpected and tragic deaths under investigation by the Coroner … One of the key findings which came out of the Victorian Parliament Law Reform Committee was the importance of providing support to grieving families, the importance of recognising that families have different cultural needs and beliefs, and the effect of unnecessarily lengthy investigations on families.

There is an important new definition of “reportable death” under s4(2)(b):

a death that occurs—

(i) during a medical procedure; or

(ii) following a medical procedure where the death is or may be causally related to the medical procedure—

and a registered medical practitioner would not, immediately before the procedure was undertaken, have reasonably expected the death.

This is likely to prove difficult for medical practitioners to interpret.

Section 8 obliges regard to be had by those exercising functions under the Act to the following:

(a) that the death of a family member, friend or community member is distressing and distressed persons may require referral for professional support or other support;

(b) that unnecessarily lengthy or protracted coronial investigations may exacerbate the distress of family, friends and others affected by the death;

(c) that different cultures have different beliefs and practices surrounding death that should, where appropriate, be respected;

(d) that family members affected by a death being investigated should, where appropriate, be kept informed of the particulars and progress of the investigation;

(e) that there is a need to balance the public interest in protecting a living or deceased person's personal or health information with the public interest in the legitimate use of that information;

(f) the desirability of promoting public health and safety and the administration of justice.

It is explicitly prescribed that “The coronial system should operate in a fair and efficient manner” (s9).

Section 57 introduces a power for coroners to compel the giving of evidence that is self-incriminating with consequential issuing of a certificate that precludes the evidence later being used against the person save in a prosecution in respect of the falsity of the evidence. The regime for findings and comments remains largely the same as under s19 of the Coroners Act 1985 (Vic). A coroner investigating a death must find (under s67(1)), if possible the identity of deceased, their cause of death, and the circumstances in which death occurred. Under s67(2), a coroner may comment on any matter connected with the death, including matters relating to public health and safety or the administration of justice. Although no obligation is imposed upon entities the subject of recommendations to implement them, it is significant that unless otherwise ordered by a coroner the findings, comments and recommendations made following an inquest must be responded to by entities the subject of comments and recommendations (s72) and findings, comments and recommendations must be published on the Internet” (s73). This will enhance the visibility of coronial decision-making in Victoria.

In addition, the State Coroner is obliged each year to submit a report to the Attorney-General (potentially including a tabulation of comments and recommendations, and any responses to them), which in turn must be laid before each House of Parliament by the Attorney-General (s102). The legislation also creates a Coronial Council (s109) which will provide advice and recommendations to the Attorney-General (s110) on the operation of the coronial system to ensure its continued effectiveness. The Act mandates provision of information to the senior next-of-kin and other persons who advise of their interest in an investigation of death (s21) and clarifies what were previously somewhat convoluted appeal rights (Pt 7).

New South Wales

The Coroners Act 2009 (NSW) has more modest reforming aspirations than the Coroners Act 2008 (Vic). Its purposes are stipulated by s3 to be:

(a) to provide for the appointment of coronial officers,

(b) to provide that Magistrates are coroners by virtue of office,

(c) to enable coroners to investigate certain kinds of deaths or suspected deaths in order to determine the identities of the deceased persons, the times and dates of their deaths and the manner and cause of their deaths,

(d) to enable coroners to investigate fires and explosions that destroy or damage property within the State in order to determine the causes and origins of (and in some cases, the general circumstances concerning) such fires and explosions,

(e) to enable coroners to make recommendations in relation to matters in connection with an inquest or inquiry (including recommendations concerning public health and safety and the investigation or review of matters by persons or bodies),

(f) to provide for certain kinds of deaths or suspected deaths to be reported and to prevent death certificates being issued in relation to certain reportable deaths,

(g) to prohibit the disposal of human remains without appropriate authority.

In particular, the overtly preventative role of the coroner is not so clearly prescribed in the New South Wales legislation.

An important adjustment in the new legislation is in the following example of a reportable death: “the person died in circumstances where the person’s death was not the reasonably expected outcome of a health-related procedure carried out in relation to the person.”

Western Australia

In early 2008 the Western Australian Law Reform Commission[41] was asked:

to review and report on the jurisdiction and practices of the coronial system in Western Australia, including the operation of the Coroners Act 1996 (WA) (the Act). In carrying out its review, the Commission should consider:

(a) any areas where the Act can be improved;

(b) any desirable changes to jurisdiction, practices and procedures of the Coroner and the office that would better serve the needs of the community;

(c) any improvements to be made in the provision of support for the families, friends and others associated with a deceased person who is the subject of a coronial inquiry, including but not limited to, issues regarding autopsies; cultural and spiritual beliefs and practices; and counselling services, etc;

(d) the provision of investigative, forensic and other services in support of the coronial function; and

(e) any other related matter.

The Commission is currently undertaking extensive consultations and is intending to release a Discussion Paper on the subject late in 2009.

The Australian Capital Territory

In September 2008, the Legislation and Policy Branch of the Department of Justice and Community Safety in the Australian Capital Territory was given a reference:

To inquire into and report to Cabinet on the effectiveness of the Coroners Act 1997 (the Act) and to consider whether the Act provides an appropriate legislative framework for:

(a) the independent investigation of deaths and fires in the Australian Capital Territory;

(b) the making of recommendations to:

(i) prevent deaths and fires in the Australian Capital Territory; and

(ii) improve the safety of the residents of the Australian Capital Territory; and

(c) the provision of support for the families, friends and others associated with a deceased person who is the subject of a coronial inquiry.

To recommend any areas where the Act should be amended to better meet the needs of the community.

In reviewing the Act, the equivalent legislation and its operation in other jurisdictions should be examined.

The review is not examining budgetary issues surrounding the operation of the Coroner’s Court.[42] It invited submissions by 19 December 2008. The review is particularly looking to issues such as:

• the need for a dedicated coroner;
• the role of the Director of Public Prosecutions as counsel assisting;
• the role of investigators;
• the need for the role of the coroner to find causation, not liability, to be clarified;
• the role of coroners’ comments;
• limits on the jurisdiction of the coroner;
• the need to avoid duplication of investigations;
• the role of notice to persons whose conduct is likely to be called into question during an inquest;
• the role of counselling services;
• potential change to the privilege against self-incrimination; and
• police powers to assist the coroner.

Major current issues

It is clear from an escalation in criticism of the effectiveness of coroners as contemporary death investigators and the emergence of a scholarly literature on coronership, including a comparative international literature,[43] that the role of the coroner is once more in the throes of significant change. The Ontario Goudge report has highlighted the unacceptability of coronial (and other) decisions if they are the product of inadequately evaluated expert evidence and if processes within coroners’ offices are not sufficiently rigorous. Part of the issue is financial. Repeated grievances have been expressed by the Western Australian State Coroner, for instance, about his inability to run his office effectively on its current modest budget.[44] By contrast, part of Victoria’s coronial reforms of 2008 involves an injection of a substantial amount of additional funding, particularly directed toward prevention of avoidable deaths.

Coronership has proved to be a remarkably enduring and flexible institution, evolving fundamentally from its beginnings in the Anglo-Saxon period and the early mediaeval era, through a period of major adjustment in the 19th century and again in the last two decades of the 20th century.

At the start of the 21st century new issues have emerged, including the relevance of principles of therapeutic jurisprudence to coronership[45] and the entitlements of bereaved family members to involvement in coroners’ investigations. Increasingly, a question mark hangs over whether coroners should retain a jurisdiction over matters other than death. A topic of general agreement is that the role of the coroner should continue to be inquisitorial but what this means in practice is not always straightforward.[46] Decisions such as those of the Full Court of the Australian Capital Territory Supreme Court in Re Doogan; Ex parte Lucas-Smith[47] have called into issue exactly what is meant by inquisitorialism in the coroner’s context where many parties are likely to have fundamentally different interests which they are seeking to champion. How, too, should the rules of natural justice, specifically the legitimate expectation of procedural fairness, operate in a non-adversarial context? An important aspect of this issue that has emerged is the extent to which parties potentially adversely affected by the comment or recommendation powers of coroners should be pre-warned and enabled to make submissions and, perhaps, call evidence to support their contentions.

A serious difficulty exists in many places in respect of access to coronial justice. Coroners’ inquests take place in relation to only a small percentage of deaths reported to coroners. Generally, a family’s lobbying of a coroner to convene an inquest plays an important role in the coroner’s decision. However, families generally require legal representation to formulate such arguments effectively. This costs money, as to a much greater degree does representation during the unpredictable and fluid process of inquests. Coronial practice is a specialist area of legal practice and does not come cheaply, if those who are experienced and competent in the area provide legal representation. Yet, legal aid has long been minimal or non-existent for families of the deceased person to participate in inquests.[48] The substantial unavailability of legal aid for family members both impacts deleteriously upon the quality of coronial justice (the best efforts of counsel assisting notwithstanding) and disenfranchises with potentially alienating and counter-therapeutic consequences for those most closely affected by deaths. It is an issue that needs to be confronted if inquests are to have a real relevance in the 21st century.

A wildcard in terms of the evolving role of the coroner in the United Kingdom and in Ireland has been the human rights obligations that have accompanied membership of the European Union. With the passage of the Human Rights Act 2004 (ACT) and the Charter of Human Rights and Responsibilities Act 2006 (Vic), the European jurisprudence now has a relevance in Australia which will be explored over the next few years.

In R on the Application of Khan v Secretary of State for Health[49], for instance, it was held to be a breach of Art 2 (procedural duties) of the European Convention on Human Rights that no funding had been made available for the family of the deceased for representation at an inquest on the ground that its resources were above the prescribed means threshold.[50] A series of appellate decisions has also explored the relevance to inquest proceedings of Art 3 (the prohibition of torture), Art 6 (the right to a fair trial), Art 8 (the right to respect for private and family life) and Art 14 (the right to be free of discriminatory practices).

The preventative role of the coroner has been embraced in most quarters in principle but controversies remain about the limits to be imposed on coroners so that their investigations are not unduly “prolix”, “indeterminate”, “discursive”[51] or “wide-ranging”.[52] One aspect of this is whether coroners should conduct inquests in order to make recommendations or whether their inquest role should be confined to making findings as to matters such as the identity of the deceased, the circumstances of death and the causation of death. Another aspect is whether comments or recommendations made by coroners should have to emerge directly from the statutory findings that they are obliged to make, thereby confining the ambit of this aspect of the coroner’s role, or whether more latitude in the interest of public health and safety should be extended. The liberal approach in this regard is to be found in s 57 of the Coroners Act 2006 (NZ) which prescribes three purposes for the holding of inquests. The first (s 57(2)) is to establish, so far as possible:

(a) that a person has died; and

(b) the person’s identity; and

(c) when and where the person died; and

(d) the causes of the death; and

(e) the circumstances death.

More controversially, the second purpose (s 57(3)) is:

To make specified recommendations or comments … that, in the coroner’s opinion, may, if drawn to public attention, reduce the chances of the occurrence of other deaths in circumstances similar to those in which the death occurred.

Also controversially, the third purpose (s 57(4)) is:

To determine whether the public interest would be served by the death being investigated by other investigating authorities in the performance or exercise of their functions, powers, or duties, and to refer the death to them if satisfied that the public interest would be served by their investigating it in the performance or exercise of their functions, powers, or duties.

This raises the reality that in many jurisdictions there exist highly skilled specialist investigators in relation to matters such as:

• mining deaths;
• maritime deaths;
• aircraft deaths;
• public transport deaths;
• hospital deaths; and
• workplace deaths.

An important issue in formulating a contemporary role for coroners is to determine how and when they add an extra and distinctive value to the death investigations done by other investigative agencies. The most commonly asserted advantage of coroners’ inquiries is that they are undertaken in public with an opportunity for a variety of relevant interests to have input into the coroner’s decision-making process and thereby to enable exploration in the public interest of whether there are or should be mechanisms for the prevention in future of comparable deaths which may be avoidable. However, the reality that coroners’ investigations are not inexpensive for either the community or for the parties involved is interestingly addressed by cl 48(1) of the Coroners Bill 2007 (Ir) which requires a cost-benefit analysis to be undertaken by a coroner in determining whether an inquest should take place.

The tension between, on the one hand, “free-wheeling” coroners who undertake investigations with a significant orientation not so much to identify proximate causes of death but to explore underlying contexts which may have played a role in deaths coming about and to make recommendations for prophylactic measures and, on the other hand, the narrower, more traditional role of the coroner to make statutory findings is a fundamental policy issue which needs to be resolved by legislative prescription.

An associated issue is whether those the subject of coroners’ comments or recommendations should be obliged to respond to them and indicate whether and how they propose to implement what has been suggested. To a modest degree this is the situation in the Australian Capital Territory and the Northern Territory in respect of certain deaths in custody.[53] It is proposed more broadly in the Irish Bill of 2007 and the United Kingdom Bill as it exists deep into 2009. This course has not been adopted by the New South Wales coronial legislation of 2009 but has been followed by coronial reforms in Victoria in 2008, in this respect implementing the recommendations of the Law Reform Committee of the Parliament[54] .It has been the subject of discussion in consultations engaged in by the Western Australian Law Reform Commission.

A further issue that arises in the aftermath of Dr Shipman’s conduct in the United Kingdom and Dr Patel’s conduct in Queensland[55] is what measures, if any, need to be adopted to create an effective check and balance on one of the important entry points to coronial involvement – doctors’ reporting of deaths to coroners’ offices. Recognising a significant level of under-reporting, generated by factors that are not sinister, as well as the potential for more self-serving reasons for non-reporting, the Law Reform Committee of the Victorian Parliament[56] recommended that:

a medical review process for death certification be introduced so that all medical certificates of cause of death are reviewed by medical specialists at the Victorian Institute of Forensic Medicine, following the release of the body to the family, to establish whether further review of the death is required.

Like comparable recommendations from Dame Janet Smith and the Luce Committee, though, this proposal was not ultimately accepted by government. However, the question remains as to whether some form of specialist monitoring by an Institute of Forensic Medicine, where one exists, or by some other arrangement for provision of specialist medical and other services, should be formally implemented to identify potentially problematic patterns in reporting of deaths – both in relation to specific doctors and more generally on an epidemiological basis.

A Canadian innovation has been the development of codes of conduct for coroners,[57] a feature of which is the entitlement to reasonably prompt decision-making in the course of investigation and at inquest. An understandable grievance of many families is both the delays in many inquests reaching conclusion and their fragmented nature, when initial estimations of duration prove erroneous. Notably, s8 in the Coroners Act 2008 (Vic) highlights the importance for families to obtain closure on the deaths of their loved one as a factor to which coroners are obliged to have regard in their investigations. Significantly, in Victoria a Coronial Council is in the process of being constituted to advise the Attorney-General on further reforms which may need to be made to coronial legislation in that state.

Another issue for coroners’ offices in an era of increasing awareness of the potential for courts’ decisions to have counter-therapeutic consequences is the responsibility of coroners’ offices to provide support for family members (and others) during the stressful period of coroners’ investigations and inquests. In Western Australia, for instance, a counselling unit is formally established by the Coroners Act 1996 (WA) but its funding is so inadequate that its operations are almost exclusively confined to the Perth metropolitan area and even there a problematically low level of service is able to be provided.[58] Arguably, it should be fundamental to the operation of a coroners’ service that it provide adequate, and therefore substantial, counselling support to those bereaved and others upon whom the coronial process has a foreseeable risk of detrimental effects.

Identifying those who are suited by skills and experience for appointment to the roles of Chief/State coroner, deputy roles and coroners generally is an important issue. Latterly New Zealand and Victoria have appointed intermediate-level judges to the principal role. Elsewhere, the role is that of magistrates, who may stay only for a modest time in the jurisdiction, or of local solicitors (in the United Kingdom and Ireland and, until recently New Zealand). Determining those credentials (eg in medicine, nursing and science, as well as law) that are advantageous to appointment to the coronial role, and advancing its status by drawing upon at least the intermediate levels of the judiciary to provide leadership to the jurisdiction has much to commend it and appears to be the current direction of reforms.

It is apparent, then, that there are many diverse issues which are on the current agenda of coronial law reform internationally. Some are fundamental and require re-assessment of the contemporary role of the traditional model of the coroner as a death investigator. Many go to aspects of the role of modern coroners, including the extent to which they should be perceived as part of the public health armoury of the state. Others go the extent to which coroners’ offices and courts are achieving (and are able structurally and financially to achieve) the objectives set for them by enabling legislation. Still others go to whether coroners’ processes are exercising a counter-therapeutic impact upon the vulnerable through a combination of delay, insensitivity, poor communication and inadequate funding and administration. Administrative efficiency and transparency have become generally expected requirements for Chief Coroners and their offices – not always attributes brought readily to the role by appointees whose background has principally been in legal practice as a member of counsel. In addition, another issue that has become apparent is the distinctiveness of the functioning of the coronial process and the need for a sufficient budget to be made available by government to enable both a coroner’s court and an office of the coroner to undertake its responsibilities adequately. This independence and distinctiveness of the jurisdiction have not always been adequately appreciated by governments and appellate courts, a tendency for too long having been to see coroners and offices of State/Chief Coroner as merely an adjunct of magistrates’ courts.

The current round of reforms to coroners’ legislation and practice needs to be informed by international developments. Just as death transcends national and state boundaries, so should legislative and practice reform in the area. There is much to be learned by initiatives being contemplated and trialled in many parts of the world if the important task of facilitating avoidance of avoidable deaths and clarifying the public record in relation to unclear circumstances and causation of death is to be effectively undertaken. Corfu’s limited criminal response to the tragic deaths of the Shepherd children provides an illustration of the limited range of responses available in those jurisdictions where coroners’ offices do not exist. However, the real test for coronership in the 21^st century is whether in inquests such as that into the deaths of the Shepherd children the public record can effectively be clarified as to the cause and circumstances of deaths and whether recommendations can be made and implemented to minimise the risk of further avoidable deaths.