Opening up the virtual doors of remote inquests … (or making in-person attendance in court more likely?)

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Opening up the virtual doors of remote inquests … (or making in-person attendance in court more likely?)

Published 1 July 2022

We are used to coroners’ inquests being open to the public in the sense that anyone can come along to an inquest hearing in the public court room and observe if they wish.  However, we have just entered a new era of openness which means that members of the public and press do not necessarily have to leave the comfort of their own homes or workplaces to observe inquest proceedings, because they can now apply to the coroner to attend an inquest by video link.

In this briefing, we look at what this change involves and what the practical impact may be. 

What’s changing?

As of Tuesday 28 June 2022, new legal provisions (contained in the Courts Act 2003 s.85A and the Remote Observation and Recording (Courts and Tribunals) Regulations 2022) came into effect, making it lawful to permit the public or press to observe any court or tribunal proceedings remotely by video link, which includes coroners’ inquests. Audio links for the media have already been allowed during the pandemic.

The test for granting remote access to observers under these new provisions is whether the court is satisfied that remote access is in the interests of justice, plus whether the court has the capacity and technological capability to provide it without creating an unreasonable administrative burden for the court or its staff. 

To assist coroners with how to approach these changes in practice, the Chief Coroner has issued a new guidance note - Guidance No. 42 - Remote Hearings’ .  Although it is only the rules on remote observation that are currently changing, this new guidance note is also useful in summarising the latest position on remote attendance of inquest participants (e.g. witnesses, interested persons and legal representatives), as well as touching on planned future changes relating to remote attendance by coroners and juries.

What does the new guidance say?

Remote observation by the public/press

The new guidance explains that it is now lawful to use audio or video live-streaming, to transmit court or tribunal proceedings, including inquests, to the public or press, either to premises designated by the Lord Chancellor or to specific individuals.  It remains a criminal offence for anyone to record or broadcast any part of the proceedings that are live-streamed to them.

Under the new rules, individuals wishing to observe inquest proceedings have the option of either attending the hearing in person, or applying for permission to observe remotely.   As the guidance is keen to emphasise, however, this is not about people having a ‘right’ to observe proceedings remotely, but about being entitled to apply for permission to do so, which may be refused. Each application is to be considered on a case-by-case basis.

The guidance suggests that, to manage the administrative burden of dealing with applications for remote observation, coroner areas may wish to publish guidance on the application process (so we expect this to be likely quite soon). Such guidance could, for example, say that applications must be made in writing no later than midday before the proceedings, and must include reasons why remote access should be granted.

The guidance seeks to help coroners with applying the test for whether to grant permission for remote access. To illustrate how this might work in practice, the guidance gives some examples setting out how a coroner might approach applications, including one involving a person making an application to observe an inquest hearing remotely ‘because it would be more convenient for them’ to do so.  In this scenario, the guidance suggests, the coroner could decide to refuse the application, on the basis that the proceedings are already sufficiently accessible to ensure open justice (e.g. via public gallery in court).

Overall, the examples and the general tone of the guidance suggest that - subject to how technologically advanced and well-resourced the particular court is - those applying to observe inquest proceedings remotely may need to work quite hard to persuade a coroner that they should have inquest proceedings live-streamed to them.

Remote attendance by participants  

Separately from the new rules about remote observation, the new guidance confirms that it is also lawful, under a coroner’s inherent power to manage proceedings, to use video or audio live-streaming to hear evidence from witnesses or for the participation of interested persons and legal representatives.  This is something we all became very used to during the pandemic.  Again, however, the guidance emphasises that there is no right for inquest participants to attend hearings remotely, but they can apply to the coroner for permission to do so, and such applications will be considered on a case-by-case basis.

However, it is far from a given that witnesses and other participants will be successful in their applications to participate remotely.  In relation to witnesses, for example, the guidance says they should only be permitted to attend remotely where this would ‘improve the quality of the evidence given, or allow the inquest to proceed more expediently’, plus the coroner must consider whether remote attendance would ‘impede the questioning of the witness’.   In relation to interested persons and their legal representatives, the guidance is rather more broad-brush, stating that, when deciding whether or not to grant permission for remote attendance, coroners must balance the interests of justice (including wider matters such as use of court resources) and the interests of those attending the proceedings. 

Whilst the guidance does underline that every case should be considered individually, the overall message is that the starting point should generally be attendance in person unless there are good reasons to allow otherwise: “It is the Chief Coroner's experience that it is often beneficial for participants to attend hearings in person. In his view, remote attendance should not normally be permitted purely because a participant would prefer it.”

Remote coroners/juries in the future?

As the law currently stands, the coroner and a jury must be physically present in the courtroom during an inquest hearing.  Rules are to be made in due course, however, that will in principle enable coroners and juries to attend remotely, provided all jurors are in the same location. Even when these new rules come into effect though, the Chief Coroner says in his guidance that it is unlikely to be in the interests of justice for juries to attend proceedings remotely, unless there are ‘exceptional circumstances’ (such as another lock-down perhaps).

What is likely to happen in practice?

Whilst each coroner is likely to publish a local policy for applying to attend remotely, the tone of the Chief Coroner’s guidance may well result in fewer audio and video links being granted to the media for convenience purposes, although local media that cover a wide geographical area may have a more persuasive argument that attending in person is simply not practical and in effect hampers access to open justice.

In terms of remote attendance by legal representatives and witnesses, the tenor of the guidance seems to lean towards everybody attending in person wherever feasible. The criteria for attending remotely seems, to us, to be setting a much higher bar than previously (during the height of the pandemic). However, if the time taken to travel to court, or an individual testing positive for Covid-19, really will mean the hearing has to be adjourned, or listed on a later date, then the criteria for remote attendance may be met. We suggest that in some courts, careful written applications will be required, where remote attendance is really needed by healthcare staff or legal representatives.

How we can help

Our large national team of inquest lawyers have a wealth of experience in supporting providers and individuals across the health and social care sector through the inquest process; from relatively straightforward medical deaths, to the highest profile complex Article 2/jury inquest cases involving multiple interested persons. We are currently advising on applications for the remote attendance of participants.

For more information please contact:

Gemma Brannigan
Partner
T: +44 (0)20 7894 6027
E:  gbrannigan@dacbeachcroft.com

Peter Merchant
Partner
T: +44 (0)113 251 4806
E:  pmerchant@dacbeachcroft.com

Jacques Howell
Senior Associate
T: +44 (0)20 7894 6321
E:  jacqueshowell@dacbeachcroft.com

 

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