The Jersey Law Review – October 2005

DEVELOPMENT OF THE INQUEST PROCESS

Michael Wilkins

1       This 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 answer format.

2       In normal circumstances, some 35 inquests are conducted each year in the Bailiwick.[1]  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

3       The evidence from Colonel John Le Couteur, Viscount, given in 1859 to Royal Commissioners examining the Civil Laws of the Island[2] referred back to an account of the procedure in cases of levée de corps[3] given by him in 1846 to the Commissioners then examining the Island's Criminal Laws.[4]  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,[5] 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[6] of the parish where the death occurred.

4       The 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.[7]

5       Even allowing for the passing of the Inquests and Post-Mortem Examinations (Jersey) Law, 1951,[8] 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.[9]  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).[10]  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[11] generally prevailed, so that, apart from sitting (‘opening’) to receive, essentially, evidence of identification and thus, where possible, to release a body[12] for burial  or cremation,[13] the inquest always stood adjourned in order to await and to be informed by the outcome of any (serious) consequential criminal proceedings.[14]

6       It seems that the actual return (‘verdict’) of an inquest has in Jersey been expressed in narrative form from the very distant past.  Until recently,[15] 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.

7       In 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.[16]

8       Notwithstanding 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[17] 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[18] thus remains available to supplement the statutory scheme.

9       It 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,[19] 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) Law, 2004.

(2) PROCEDURAL OVERVIEW

10     The 1995 Law contains key provisions encompassing -

·                duties of notification of death (Article 2)

·                inquiries by the Viscount into death (Article 3)

·                post-mortem examinations and scientific analysis (Articles 17-20)

·                permissible inquests (Article 4)

·                mandatory inquests (Article 5)

·                juries (Articles 7 and 8)

·                witnesses (Articles 9 and 12)

·                proceedings at inquest (Article 11)

·                findings (Article 14)

11     In 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[20] 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 AB

12     In 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[21] 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.

13     Police 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,[22] while he had crossed a field on foot in order to telephone for assistance from a neighbouring farm.

14     Mr 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.[23]  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.[24]

15     The 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[25]; Mr CD; Mr IJ; Fire-fighter OP; Paramedic QR; Doctor ST[26]; Traffic Officer UV[27] and Police Constable GH.  Mr AB’s 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[28] at the instance of the Connétable.

16     Following the hearing of the evidence,[29] 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[30] in relation to Mr AB.[31]

(3)  QUESTIONS ON RELATED ISSUES

17     Q:  Is the decision whether or not to perform a post-mortem examination of a deceased, crucial?

18     A:    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.[32] (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 been undertaken.)

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[33] or to restrict publication of any evidence.[34]  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.[35]  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 persons’?

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.[36]

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 inquest?

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.[37]  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[38] 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.[39]  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.[40]  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.[41]

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 liability?

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.[42]  The purpose is to enable the cause of death to be fully examined

43     Q:  Who cross-examines witnesses at an inquest?

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[43] which progresses the business of the enquiry and yet serves to protect the witness.

51     Q:  Are pre-inquest meetings with legal representatives granted?

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 inquest?

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 (for England and Wales 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.[44]  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.[45]

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[46] 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 appeal?

62     A:  Not expressly, but by article 16 of the 1995 Law the Court may, on the application of the Attorney General showing cause,[47] 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[48] or, possibly, by a petition of doléance[49] 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 process.[50]

Michael Wilkins is a barrister, and was appointed Viscount of the Royal Court of Jersey in 1981 and Judicial Greffier in 1997.