The Jersey Law Review –
DEVELOPMENT OF THE
paper is in three parts. Part One
provides an historical perspective, briefly tracing the development of inquest
law and practice in Jersey. Part Two gives an overview of the actual
procedure and attendant processes.
Part Three surveys a range of related issues by means of a question and
normal circumstances, some 35 inquests are conducted each year in the
Bailiwick. The relatively small
throughput of cases is merciful but lawyers' experience of the process tends
therefore to be limited. It is
hoped that Parts Two and Three will better prepare Jersey
practitioners for any engagement with the process.
(1) THE HISTORY
evidence from Colonel John Le Couteur, Viscount,
given in 1859 to Royal Commissioners examining the Civil Laws of the Island referred back to an account of the procedure in cases of levée de corps given by him in 1846 to the Commissioners then examining the Island's Criminal Laws. In summary, in all
cases of uncertain death the Viscount (in practice, usually the Deputy
Viscount), upon the Bailiff’s order, convened a jury of twelve men to
determine the cause of death.
Having viewed the body and heard the available evidence, including
receipt of a surgeon’s report, the jury returned a finding which was registered
before the Court (the Bailiff sitting with two Jurats, constituting the Inferior Number). However, the evidence of witnesses was
not heard on oath. Further, the
jury was exclusively male and seems to have been drawn from
Principaux of the parish where the death occurred.
Attorney General attended each inquest making such enquiries and asking
whatever questions he deemed appropriate.
In cases where the deceased died a violent death and, for example,
murder was suspected it seems to have been the case that the inquest proceeded
regardless. However, the jury
limited itself to expressing the actual cause of death: any criminal action
followed virtually independently.
allowing for the passing of the Inquests and Post-Mortem Examinations (Jersey)
Law, 1951, the procedure described above had changed surprisingly little by
the time the writer took office as Viscount in 1981: the Bailiff continued to
decide whether an inquest was necessary;
twelve jurors (as a matter of practice, still exclusively male) selected
from a small standing panel continued to sit with the Coroner (Viscount or
Deputy Viscount) in all cases; and the deceased's body was always viewed. But by now the evidence
was taken on oath (1880 Règlement sur les Levées de Corps,
article 2) and always recorded. The
inquest's finding and report were also submitted to the Bailiff in Chambers for
registration in the rolls of the Court (unless the jury was divided, in which
event their individual opinions continued to be given direct to the Court). By virtue of the
Bailiff’s fiat the Viscount was always required to give notice to the
Attorney General that an inquest was to be held, but by now the maxim le criminel tient le civil en état generally prevailed, so that, apart from sitting
(‘opening’) to receive, essentially, evidence of identification
and thus, where possible, to release a body for burial or cremation, the inquest always stood adjourned in order to await and to be
informed by the outcome of any (serious) consequential criminal proceedings.
seems that the actual return (‘verdict’) of an inquest has in Jersey been expressed in narrative form from the very
distant past. Until recently, the narrative form of verdict was steadfastly maintained in the
following (fictitious) form (English version) -
The body is that of AB, aged 72
years and 3 months, native of Sheffield, Yorkshire, and that he was certified
dead at the General Hospital, St Helier, on the afternoon of Sunday, 6 June, 2004;
death being attributable to blood loss suffered as a result of his aortic
artery being severed when, while cycling along the Green Lane, St Mary, in an
intoxicated condition a short time earlier, he collided and impacted with a
cultivator attached to a stationary tractor.
this way the inquest's verdict answered the four questions put to the Viscount
by the Bailiff in his order, namely:
Who was the deceased? When
did he die? Where did he die? How did he die? The information elicited also served to
enable subsequent registration of death under the Loi
(1842) sur l’Etat
Civil, as amended.
the sporadic intervention of the legislature, as mentioned, the inquest
procedure continued to rest on a largely customary law basis until the passing
of the Inquests and Post Mortems (Jersey) Law,
1995. The 1995 Law provided a modern statutory foundation for the ascertainment of the
cause of death and is the basis upon which inquests have
since been held: it accordingly underpins the modern procedure and
processes. However, it is important
to note that the 1995 Law does not entirely codify the law. The related customary law thus remains available to supplement the statutory scheme.
needs also to be explained that up to the coming into force of the 1995 Law the
Bailiff exercised a related largely customary law jurisdiction in respect of
matters relating and ancillary to death.
All such matters now fall within the purview of the Viscount. Hence, questions of exhumation and
re-burial, and those concerning the transportation of bodies in and out of the
Island are subject to his supervision: see
generally, once implemented, the Burials and Exhumations (Jersey)
(2) PROCEDURAL OVERVIEW
1995 Law contains key provisions encompassing -
notification of death (Article 2)
by the Viscount into death (Article 3)
examinations and scientific analysis (Articles 17-20)
inquests (Article 4)
inquests (Article 5)
(Articles 7 and 8)
(Articles 9 and 12)
at inquest (Article 11)
summary, when an unexpected or unnatural death occurs, the police must be
informed. The police notify the
Viscount who causes enquiries to be made.
The Viscount may order a post-mortem examination to ascertain cause of death. Where a post-mortem examination is
considered by the Viscount to provide insufficient clarification of the relevant
circumstances he may proceed to hold an inquest - and must
do so where (e.g.) the death occurred while the deceased was in custody.
The sad case of Mr
the fictitious scenario illustrated by the verdict shown in Part One let it be
supposed that there had been a direct witness to Mr AB’s accident, Mr CD,
who, at 1500 on Sunday, 6 June, 2004, was driving his car along the Green Lane,
St Mary, in the opposite direction to which Mr AB was riding. Mr CD saw
the collision and the cyclist being thrown off his bicycle onto the cultivator;
on close inspection by Mr CD it was apparent that Mr AB had indeed suffered
serious injury. Mr CD used his
mobile phone immediately to contact the emergency services (the ambulance, fire
and police services all responded and each was in attendance within 15
minutes). The paramedics had
carefully removed an unconscious Mr
AB from the cultivator (he was
unfortunately covered in blood and lying prone across a row of cutting blades)
with the assistance of hydraulic lifting equipment provided by the
States’ Fire and Rescue Service.
He had then been rapidly transported to the General Hospital,
St. Helier, life support having been applied
en route. Regrettably, however, he
was pronounced dead there (in the Accident and Emergency Department) at 1700 on
that day after the severed aortic artery had been identified as such and all
attempts at repair, transfusion and resuscitation had failed.
Constable GH had been deputed to lead police investigations into Mr AB’s
death. The officer immediately
began to establish Mr AB’s movements on Sunday 6 June and
the circumstances surrounding the collision. The Viscount, on notification by the
police of Mr AB’s death and its apparent
circumstances unsurprisingly concluded that an inquest would be required. He had also instructed the States’
Pathologist to conduct a post-mortem examination of Mr AB’s
body. It transpired that: Mr AB had spent three hours drinking in
a local public-house before setting out - in good weather and visibility - to
cycle the distance of about a mile back to his home, La Petite Balade, St Mary, on Sunday 6 June; his blood/urine alcohol
levels (at post-mortem) were found (on toxicological examination by the Official Analyst) to be consistent with the consumption of
five pints of beer; the tractor and cultivator belonged to a farmer, Mr IJ; the
tractor engine had cut out while the tractor was being driven by him, with the
cultivator in tow, along the Green Lane in the direction of Pomme
Ferme; Mr IJ had left the tractor and tow stationary,
but with hazard lights flashing to the front and to the rear extremities, while he had crossed a field on foot in order to telephone for
assistance from a neighbouring farm.
AB was a widower who had lived alone: his only surviving relative was a nephew,
Mr KL, who identified his uncle’s body to Police Constable GH at the
Hospital Mortuary and engaged the services of the firm of MN, funeral directors. Messrs MN liaised with
the Viscount, in support of Mr KL, and
the inquest into Mr AB’s death was opened on the morning of Friday
11 June, 2004: this was a very short proceeding in which, essentially, evidence
of identification was received and Police Constable GH advised the inquest
that, while the police report into Mr AB’s death had yet to be completed
there was no need or wish to delay the release of Mr AB’s body: hence, on
behalf of Mr KL, Messrs MN might arrange a cremation. The States’ Pathologist confirmed
that she had completed her post-mortem examination of Mr AB’s
body and that she, too, was happy to release his body. Accordingly, the Viscount had thereupon
adjourned the inquest and duly authorised the release of Mr AB’s
body for cremation.
inquest was resumed on Wednesday
14 July, 2004, once police enquiries into Mr AB’s
death had been completed. The
Viscount had required (summoned either through the Coroner’s Liaison
Officer in the Viscount’s Department or through the police) the following
to attend and give evidence on 14 July: the States Pathologist; Mr CD; Mr IJ; Fire-fighter OP; Paramedic QR;
Doctor ST; Traffic Officer UV and Police Constable GH.
nephew, Mr KL, was notified of the date and time of the inquest and duly in
attendance though he was not formally called to give evidence. Pursuant, respectively, to articles
11(3) and 21 of the 1995 Law, the Attorney General and Connétable
of St Mary, had each been notified of the date of the resumption of the inquest
– also of its opening on 11 June – but, in the event, no appearance
was made on behalf of the Attorney, while Centenier
EF attended at the instance of the Connétable.
the hearing of the evidence, the Viscount duly announced a verdict in relation to Mr AB’s
death as recited in Part One. The
verdict was next transmitted to the Bailiff who ordered its registration in the
rolls of the Court under article 14(6) of the 1995 Law. Shortly after, having notified the
Registrar accordingly (under article 14(7) of the 1995 Law), the Viscount
signed the St Helier Registrar’s Register of Deaths in relation to Mr
(3) QUESTIONS ON RELATED ISSUES
17 Q: Is the decision whether or not to
perform a post-mortem examination of a deceased, crucial?
Generally speaking, yes. For
example, by article 64 of the Marriage and Civil Status (Jersey)
Law, 2001, where a medical practitioner has not seen a patient during the
fourteen days prior to the latter’s death, the medical practitioner can
then only issue a certificate of death after viewing the body and with the
permission of the Viscount. If,
after (e.g.) consultation with such practitioner the Viscount remains
uncertain as to the particularity of death he will order a post-mortem
examination. Naturally, in many
cases a post-mortem obviates the need to proceed to an
inquest. (But conversely, in relatively exceptional circumstances –
such as where a CT (computerised tomography) scan is adjudged to suffice - an
inquest might be convened notwithstanding that a conventional autopsy has not
19 Q: Are inquests held in open court?
20 A: By article 11(4) of the 1995 Law,
inquests are to be held in public, subject to the Viscount’s right under article
11(5), as seems to him desirable in the interests of justice, to exclude any
person or to restrict publication of any evidence. It is to be noted that
in Jersey inquests are usually held in the
HV Benest Room, Ground Floor, Morier House, Halkett Place,
St Helier, JE1 1DD. This room, not actually being a court
room, provides a more informal environment. In exceptional
circumstances, however, (such as where the HV Benest Room is too small to
accommodate everyone), it may be necessary to use a court room.
21 Q: Who chooses the witnesses?
22 A: The Viscount exercises a discretion as
to which witnesses to call but in making his decision he will take into account
any requests from interested parties.
A list of intended witnesses will normally be provided for the
assistance of interested persons.
23 Q: Who are ‘interested
24 A: This is not actually a term of art for
the purposes of the 1995 Law. But, for this paper, the phrase includes the
family of the deceased and any person whose conduct by act or omission might be
called into question in relation to the deceased’s death.
25 Q: Who decides in what order the witnesses
are to be heard?
26 A: As indicated in Part Two this is also a
matter for the exercise by the Viscount of a discretion. As stated at footnote 29 evidence is elicited,
broadly, in a chronological (and therefore logical) order.
27 Q: Can documentary, hearsay or non-proven
evidence be received?
28 A: Yes, by article 11(7) of the 1995 Law
the Viscount may - doubtless subject to relevance - admit any evidence he
thinks fit, whether or not it would be strictly admissible in a court of law:
historically in Jersey, the inquest was never constrained by exact adherence to
the rules of evidence.
29 Q: Can the family of a deceased, or other
interested persons, gain disclosure, prior to an inquest, of technical reports
and witness statements made available to the Viscount for the purposes of the
30 A: Certainly the report (e.g.) of a
post-mortem examination should be made available to an appropriate representative
of the bereaved as soon as available.
Disclosure (e.g.) of witness statements, which in principle should
not be released without the consent of the maker, is potentially contentious. The Viscount’s practice leans nonetheless
towards enforced disclosure where this has not been provided consensually. This policy seems
justified in that it ensures that the bereaved are not at any stage uninformed
or disadvantaged and it demonstrates transparency. In practice such disclosure is allowed subject
to the imposition of conditions which prevent further or inappropriate
dissemination or use of information disclosed.
31 Q: It seems that in the case of Mr AB
the Viscount sat without a jury. In
what circumstances does he empanel a jury?
32 A: Under article 7 of the 1995 Law, the
Viscount may convene a jury of twelve persons when he considers it to be in the
public interest to do so. When needed,
a jury is empanelled pursuant to article 1 of the Loi
(1912) sur la Procédure
devant la Cour Royale, as amended. In practical
terms, for present purposes, this means that jurors are now selected at random
(by computer), without gender bias.
33 Q: After the evidence has been heard, do
lawyers for interested persons address the Viscount or, where there is one, the
jury, on the facts?
34 A: No. By rule 11 of the Inquests and
Post-Mortem Examinations (Jersey) Rules, 1995,
this is not permitted.
35 Q: When a jury is empanelled does the
Viscount still retire with them?
36 A: To date this has always been the case.
In the inquest cited above into the death of Miss (Hannah) Sandra Cotter in
1997 the Viscount declined an invitation to change this practice on the ground
that it was extremely long-standing and if it was considered necessary to
change, it was for higher authority to impose the change. In that case the Viscount did however
affirm that it is not for him, when retiring with the jury in this way, to play
any part in deciding upon the finding of the inquest: his role was merely to
give to the jury such further assistance or guidance, e.g. in
structuring an appropriate narrative form of verdict, as it might require. While the
Viscount’s reasoning in Miss Cotter’s case was presumably
appropriate to the circumstances prevailing in 1997, it is suggested that,
(given that, once operative, the Human Rights (Jersey) Law, 2000, will formally
embed the Convention in Jersey domestic law) the better view now is that the
Viscount should no longer retire with a jury and that he has the jurisdiction
and authority to direct himself accordingly. If needs be, the structuring of a narrative verdict can be achieved by
the Viscount inviting a jury to
respond to a series of factual questions in the manner suggested by the House
of Lords in the English case of R v HM Coroner for the Western District of
Somerset ex parte Middleton.
37 Q: Is it the case that the Viscount always
sums up the evidence at an inquest?
38 A: When sitting with a jury, once all the
evidence has been received, the Viscount should always sum up and give any
directions as to the applicable law. When sitting alone it would generally be
advisable for the Viscount to sum up the evidence before announcing his verdict
but specific circumstances might render this unnecessary.
39 Q: Does an inquest allocate guilt, blame or
40 A: None of these. An inquest is a fact-finding
investigation to find out how a person died. It is not a method of apportioning
blame. There are no parties at an
inquest. There is no indictment,
prosecutor or defendant. An inquest
is an enquiry which attempts to establish fact. Accordingly, by article 14(3) of the
1995 Law an inquest cannot make any finding of legal liability. An inquest should not be used by any
party for the airing or rehearsal of arguments on liability.
41 Q: If an inquest cannot allocate blame or
liability what useful purpose does it serve?
42 A: The inquiry, the bounds of which are set
by the Viscount, still has as its purpose – pursuant to article 14(1) of
the 1995 Law - the answering of the four questions mentioned in Part One: Who
was the person who has died and how, when and where did death occur? An inquest should give a wide
interpretation to the ‘how’ question so that it is understood to
be: ‘by what means and in what circumstances did the death take place?’
See, again, R v HM Coroner for the Western District of Somerset ex parte Middleton; see also R
v HM Coroner for West Yorkshire ex parte Sacker. The purpose is to
enable the cause of death to be fully examined
43 Q: Who cross-examines witnesses at an
44 A: Strictly, there is no cross-examination
of witnesses at an inquest, there being neither trial nor parties. The
procedure primarily involves the examination of witnesses by the Viscount. Once he has completed his examination a
right of further examination is accorded to interested persons (generally
through counsel), however.
45 Q: Can a ‘rider’ be added to
the finding at an inquest?
46 A: Yes, rule 12 of the Inquests and
Post-Mortem Examinations (Jersey) Rules, 1995, allows for the
‘reporting’ of any matter where to do so might help prevent the
occurrence of similar fatalities (such as the making of a recommendation to a
highway authority that a speed-limit be imposed).
47 Q: Does an inquest have regard to the European
Convention on Human Rights?
48 A: As indicated, the Human Rights (Jersey) Law, 2000, is not yet in force. However, qua Protocol, the
Convention has had application in Jersey since
1953 and the inquest procedure is Human Rights’ compliant. The fact that the inquiry interprets the
‘how’ question to the effect that a full investigation of
underlying circumstances takes place is perhaps the fundamental consideration
from a Human Rights’ perspective in that Convention Right 2 - right to,
and protection of, life - is thereby respected.
49 Q: Does a witness at an inquest have the
right not to answer questions?
50 A: Witnesses must generally attend an
inquest and answer questions (articles 9 and 22 of the 1995 Law). However, by article
12 of the 1995 Law all the privileges and immunities available in a court of
law may be claimed at an inquest.
So, for example, a right not to answer a question on the ground of
possible self-incrimination could be asserted at an inquest; however, where a
witness is considered to be vulnerable he may make a prepared statement which progresses the business of the enquiry and yet serves to
protect the witness.
51 Q: Are pre-inquest meetings with legal
52 A: Yes. The Viscount’s practice, normally
in the more complex cases, is to make such a facility available so as to
address and progress various procedural issues.
53 Q: Where a Jersey
resident dies outside the Island in
non-natural circumstances would there then be a Jersey
54 A: This depends on the circumstances. In England and Wales, since
the case of Miss Helen Smith in 1982 it has become mandatory to undertake
investigations into deaths occurring abroad. But the United Kingdom Government now proposes
at least) to relax that rule given that coroners cannot be granted effective
extra-territorial powers and that working with overseas’ authorities is
often slow and problematic. In Jersey,
the rule has never applied. The Viscount’s decision-making is now at all
times guided by the provisions of the 1995 Law.
55 Q: Where a person dies in an accident
having expressed a prior wish to donate organs on death would the need for an
inquest negate that wish?
56 A: Such a situation would always be
fact-specific but in principle the Viscount could still – and would hope
to - authorise the donation of organs, subject to the safeguards contained in
the Anatomy and Human Tissue (Jersey) Law,
1984, as amended.
57 Q: Referring to a comment made in Part One,
does the Deputy Viscount still sit as Coroner in most inquest cases?
58 A: Yes. Subject to context, most references in
this paper to ‘the Viscount’ may be taken to refer to the Deputy
Viscount. But two
Jurats of the Royal Court, the Master of the Royal Court and the
Viscount may sit as Relief Coroners when required.
59 Q: When a child is stillborn will there be an inquest?
60 A: In normal circumstances, no. By
definition a stillborn child is not born alive and so would not generally be
the subject of an inquest.
61 Q: Does the 1995 Law provide a right of
62 A: Not expressly, but by article 16 of the
1995 Law the Court may, on the application of the Attorney General showing
cause, order a fresh inquest to be held. In any event, the review of a decision
or determination at, or in relation to, an inquest could be obtained by an
application for judicial review or, possibly, by a petition of doléance insofar as a there has been any breach of natural justice or
manifest error of law. The Human
Rights (Jersey) Law, 2000, once implemented,
will also secure full Convention rights’ protection and remedies.
63 Q: In England, another of the
Coroner’s duties is or was to make findings in cases of treasure
trove. Does the Viscount in Jersey have a similar jurisdiction?
64 A: No. In Jersey any property found and
thought to constitute treasure trove (hidden, as opposed to lost, gold or
silver coin, plate or bullion) would be claimed as such by the Receiver General
on behalf of the Crown but the Viscount plays no part in the adjudication
Michael Wilkins is a
barrister, and was appointed Viscount of the Royal Court of Jersey in 1981 and
Judicial Greffier in 1997.