The Chief Coroner published a series of guidance notes to advise coroners on dealing with COVID-19 related deaths. This followed a number of clauses being introduced as part of the emergency legislation, the Coronavirus Act 2020. Here, we look at how this guidance will impact on those deaths which occur in the secure estate, such as a prison or detention centre.
Despite changes made to the status of when a death from COVID-19 will require referral to a coroner, the pandemic will inevitably cause a dramatic rise in the workload of coroners generally and, an increase in the number of full inquests required to be heard.
Pressure on the system
Inquests touching deaths in custody were already facing a significant backlog in certain jurisdictions and it is very difficult to predict when this situation will be resolved. All deaths in custody or state detention remain notifiable to the coroner and so a death caused by the COVID-19 infection whilst in custody will still require an inquest, which is the same as before the pandemic.
Article 2 (the right to life) and Article 3 (the prohibition of torture and inhuman and degrading treatment) place obligations on the state to protect the rights of those in custody and detention. This remains valid throughout the pandemic and includes a duty to ensure an effective and independent investigation where someone dies in custody.
The effect of recent modification to the Coroners and Justice 2009 Act means that despite being a notifiable disease under the Health Protection (Notification) Regulations 2010, the coroner is no longer required to hear the inquest of a natural causes COVID-19 death, in custody, sat with a jury. The benefit of hearing an inquest without a jury will allow for a longer court day and avoid the difficulties of having to accommodate juries in accordance with current social distancing measures. Of course, a coroner still retains the discretion to hold a jury inquest where they consider that there is sufficient reason to do so or in circumstances where the coroner has reason to suspect that some human failure/ failure of clinical care contributed to the person being infected or dying with the virus to render the death as “unnatural”. It is important to remember that a coroner will conduct a full, frank and fearless inquiry into the death whether sat with a jury or not.
A development arising out of the Chief Coroner’s recent guidance lends itself to the prospect that the death of a staff member from COVID-19 may well be notifiable to the coroner if it was felt that the virus had been contracted in the workplace setting. In his recent guidance, the Chief Coroner indicated that this …” may include frontline NHS staff, as well as others (e.g. public transport employees, care home workers, emergency services personnel),” which is relevant to those who work in the Secure Estate as well as any detainee death from COVID-19.
Prior to the COVID-19 pandemic, certain jurisdictions were already under significant pressure. The public health emergency has already had a knock on effect on existing enquiries. Recent advice provided by the Chief Coroner dealt with recommended measures to address the immediate concerns arising out of the government’s social distancing recommendations.
Delayed inquests and coroner priorities
In the main all jury and non-jury inquests between 31 March 2020 and 28 August 2020 have been adjourned. The priority for coroners has been on death reporting and so it follows that some inquest investigations have had to be suspended while resources are focused there. This increase in workload is very likely to be coupled with a downturn in staff numbers as coroners, coroner’s officers and support staff find themselves unable to work because of illness, social distancing or self-isolation guidance. The Chief Coroner has sought to reduce the impact of this by:
- Encouraging Senior Coroners to plan with their local authority and police area, and consider requesting the deployment of additional resource to their local coroner’s office.
- Encouraging coroners to share staff, facilities and accommodation with neighbouring Coroner Areas.
- Encouraging Senior Coroners to liaise with the Courts and Tribunals’ Service about shared proceedings.
- Temporarily consenting to the appointment of assistant coroners by local authorities without open competition.
- Urgently pursuing a number of avenues to try to widen the pool of assistant coroners who may be available.
Even with these measures, disruption and delay of inquest proceedings is inevitable. The nature of inquests arising out of deaths in custody are much more reliant on the attendance of medical professionals and frontline prison staff. The very substantial strain that COVID-19 is placing on the healthcare system and secure estate already is going to significantly reduce the availability of such expertise to coroners, and is likely to prevent medical organisations and their staff from physically being able to participate during these difficulties. The Chief Coroner has already acknowledged the demands on such professionals and has suggested that coroners grant extensions for required evidence.
Whilst the issue of hearings during the pandemic is being kept under constant review by the Chief Coroner, a real hurdle for coroners being able to progress investigations stems from the fact that the coroner in any hearing (remote or otherwise) has to be present in court, even if the other parties are not. Unless a coroner is present at court, the Chief Coroner’s view is that Rule 11 has not been complied with.
The position on this Rule may evolve over time, particularly as other proceedings and courts are able to conduct hearings by video and audio link in public by broadcasting them. The pandemic has affected the coronial system the most; any current or new inquests are likely to face significant delays, especially those from deaths arising out of the secure estate which in the main tend to be complex and lengthy, resource heavy, and require input from those sectors currently the most impacted by the crisis.
Recent statistics released by the Ministry of Justice on deaths and self-harm in prison reveal in the 12 months to March 2020, there were a total of 286 deaths in prison. Of these deaths it is reported that 80 were self-inflicted, 160 were classed as ‘natural causes’, 43 deaths were recorded as ‘other’, and 3 were homicides. These figures obviously pre date the COVID-19 pandemic, but do go some way to displaying why it is anticipated that many more investigations will be delayed beyond the current reporting requirement of 12 months from report of death.