Abstract
THE MEDICO-LEGAL SOCIETY
Thursday, 10 March 2022
Professor Harry Zeitlin
MR PHILIP BARLOW
Transcript of the shorthand notes of Shelley Dutton
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The moral dilemma for lockdown has been deciding what to do when you think someone is best left on mute without telling them. So, I am really grateful to the Society for taking that dilemma away from all of you and for giving me the chance to come and talk to real people in a real situation. And it really is a very great honour to be asked.
I’m going to be talking mainly about the death part of my job, but for many people it’s hard to discuss the coronial system without also thinking about madness, in the “box of frogs” sense. So I want to say a little bit about what I see as the strengths of inquisitorial justice.
As you have heard, the reason I was asked to do this talk is because I was the coroner in the inquest of Ella Kissi-Debrah. Ella was nine years old when she died; she died of asthma and my conclusion was that air pollution contributed to her death. She is said to be the first person for whom air pollution was included on a death certificate.
A little about the case, all of it is in the public domain. This talk isn’t going to be about the case, nor is it about the merits of the decision, nor is it about air pollution, but I hope the case will help provide a background for a discussion about the powers of the coroner.
The original inquest was heard in 2014 and the conclusion was a straightforward narrative to the effect that Ella died after suffering asthma and a seizure. No criticism was made of that inquest, but Ella's mother obtained further medical evidence and applied for a fresh inquest. That is a process; it requires the authority or the fiat of the Attorney-General and then an order of the High Court. Ella’s mother had instructed solicitors and I agreed with them that the new evidence meant that there were grounds for a fresh inquest. More to the point, the Attorney-General and the High Court also agreed and the original inquisition was quashed.
Ella lived close to the South Circular Road and the new evidence suggested that her asthma and her death were connected to the level of air pollution she encountered. The new inquest lasted two weeks and concluded in December 2020. There were several interested persons and that is important because in the Coroner's Court of course we don’t talk about “parties”, we talk about “interested persons”; they included Ella’s mother, the local authority (Lewisham), the Mayor of London, and several Government Departments including the Department of Transport, the Department of Health, and Defra.
The evidence was extensive and it touched on highly political issues. For example: the UK’s response to air pollution targets; the Client Earth cases in the Supreme Court; the Volkswagen emissions scandal; and London's clean air policies under its former mayor. Its former mayor of course is someone who the zip wire of fortune has propelled from City Hall over to Downing Street. So again, it is very important not to talk about “parties”.
After two weeks and thousands of pages of evidence, my conclusion was as follows: “That air pollution was a significant contributory factor to both the induction and exacerbation of Ella’s asthma. During the course of her illness between 2010 and 2013 she was exposed to levels of nitrogen dioxide and particulate matter in excess of World Health Organisation guidelines. The principal source of her exposure was traffic emissions. During this period there was a recognised failure to reduce the level of nitrogen dioxide to within the limits set by EU and domestic law which possibly contributed to her death. Ella’s mother was not given information about the health risks of air pollution and its potential to exacerbate asthma. lf she had been given this information she would have taken steps which might have prevented Ella’s death.”
It is sometimes necessary, not in this company, to explain to people that as a coroner I don’t cut up corpses (that’s pathologists), nor do I investigate crimes (that’s the police), nor do I scrabble around in ditches at night looking for forensic evidence to solve murders (that’s actors in television dramas). Nor am I a politician; I have neither the mandate nor the qualifications to take on that role; and nor do I have the wish, because it strikes me as a very difficult job indeed.
It was interesting to see what other people thought my powers included and l was surprised at the range of requests that I received after the inquest. These included requests for me to intervene in another part of the country to stop a house-building programme, and an offer to join a class action in the US – I wasn’t sure who was being sued or why, but then I don’t think the lawyer who wrote to me knew that either.
As an aside, I was also puzzled by the number of people with almost no knowledge of the evidence taking the trouble to write to me to tell me that the decision was self-evidently wrong, or even self-evidently right. I suppose if one were complimented on the logical rigour of one’s reasoning, or maybe about the clarity of one’s language, then that would indeed be satisfying, although I wouldn’t know because it’s never actually happened to me. But I’m not sure that, for a coroner, it’s appropriate to feel any satisfaction about the volume of applause that follows a decision. Inquest conclusions are not the same as answers in a Question Time debate.
Should coroners get involved in big political questions? The answer may be a very obvious and very loud “no”. One can hardly ask for respect for judicial independence if the decision is politicised. But the question for the inquest was whether air pollution caused Ella’s death. The fresh inquest was granted in order to answer that question; that was the reason we were there. The High Court had effectively ruled it to be a legitimate question.
It may be for politicians to decide what to do about air pollution but, having been asked a legitimate question, it felt like a politician’s response if I refused to answer it. So the issue was not whether I should have been in the political arena; that is like the directions that begin “if you want to get to where you’re going you don’t want to start from here”.
There is straightaway a question that needs to be addressed: how do we keep our own views out of our decision making? On one level the politics in the case were uncontroversial. As far as I know, nobody is saying that air pollution is a good thing. There may be many good reasons to live in crowded places and close to busy roads, but no one does so with the express intention of inhaling ever more quantities of nitrogen dioxide and particulate matter. So in considering a coroner’s powers we need to be clear about the separation of powers. If I want space to make a decision, then I need to be careful not to intrude on the space of Parliament or Government. This wasn’t a public inquiry about air pollution. It was an inquiry in public on a much more focused question: did air pollution contribute to Ella’s death?
Indeed, there has been much work on unconscious biases and so there is also a question as to whether judges are even in a position to know whether they are keeping their own views out of their decision making. That is important because if anyone is given a public power, then in general we want to know about the criteria for the use of that power: when can it be used; is it used consistently; does the person wielding it have any personal interest (however broadly defined) in the outcome? Unconscious bias undermines all of that. So as coroners we do our best to identify it. I will come back to the point later, we are individuals and we can’t avoid our backgrounds, whatever they may be; but I think identifying potential bias really does help guard against it. So we try to examine the evidence with a critical eye; we use the evidence as the basis for our findings of fact; we draw our conclusions; and then we critically review our conclusions. By giving reasons, there is a legitimate public scrutiny over each one of those steps. In short, we act as judges.
What are our powers as coroners? I’m not going to try and provide a definitive list. I would like to talk about three very different types of power that the coroner has. The first is rather abstract and it’s about flexibility of approach. The second is much more mainstream and it’s about setting the scope of the investigation. Indeed, first we decide whether there should even be an investigation. Then we decide on what issues need to be addressed, which witnesses to call and how the evidence should be brought out. The third is about writing Prevention of Future Death reports, which is usually referred to as a duty rather than a power.
First, flexibility. Many will be surprised that I include that as one of the coroner's powers, but it seems to me that it’s at the heart of the coronial system. What we do is of course covered by statute, rules and regulations; and that framework provides clarity and transparency so that our powers have visible and reviewable limits. The rules also offer us protection. Keeping within the rules provides a sort of legal flak jacket.
Flexibility of approach is important. Different deaths require different levels of investigation. This merges into the second power, that of setting the scope. For example, it is surely correct that deaths in custody require detailed scrutiny. That doesn’t necessarily make them complex. In the last few weeks I have undertaken two very different types of inquest on deaths in custody. The first involved a prisoner showing increasing levels of paranoia and decline in mental health who was found hanging in his cell. CCTV showed that the requisite regular checks on his well-being were not being performed. That case required a lengthy inquest with a jury and many witnesses. The second case involved an elderly lifer who died of metastatic cancer having received all possible treatment. That case required a brief 20-minute inquest with a few written reports and no oral evidence whatsoever.
It is important to point out that the inquest is often not the only means of investigation. Many deaths involve multiple means of scrutiny. Deaths in prison will be looked at by the Prison and Probation Ombudsman. Deaths in hospital may be the subject of police investigation, inquest, disciplinary proceedings, regulatory investigation (the MPTS or the NMC), the hospital’s own Serious Incident Investigation, and civil litigation. For those involved, that is sometimes referred to as the concept of “multiple jeopardy”.
At the other extreme to deaths in custody are cases where the family may just want the formalities completed so they can get on with what needs to be done. The inquest is merely an obstacle to registering the death. For example, that may be the case for the death of someone with confirmed, biopsy-proven mesothelioma who has worked with asbestos. Our job there may be simply to make the obstacles as low as possible.
It seems to me that flexibility is one of the important powers of the coroner and this flexibility is made possible because, as coroners, we operate within an inquisitorial system. Inquisitorial and adversarial courts are often seen as sharply defined alternatives. That may be the objective, but it isn’t always that binary. There’s still space for nuance and there’s frequently a sizeable adversarial aspect within an inquisitorial jurisdiction. Plenty of cases become adversarial despite the coroner’s best attempt to prevent it. Why would it be otherwise? The grievance within the act of grieving is often what we are investigating. Anger is a frequent part of grief, and we don’t always express ourselves kindly when we’re angry. And most individuals become defensive when they think they are being attacked. The task for organisations is often to show that they are being open in the face of anger; that they can see criticism as constructive no matter how it is expressed. That creates a very understandable challenge for them. It’s easy to see why we slip into talking about “sides”, “cases” and “parties”.
Coroners come in all shapes and sizes, have different backgrounds, different experience, and different levels of suspicion about different things. Some inquisitorial nets have finer mesh than others. Coroners can take different views about similar incidents. That could be a point of criticism, but the strength of the inquisitorial system is precisely that the investigation leads wherever it leads. Coroners use their experience, skill, judgement and discretion to define what is relevant and then shed light on it. Many families are unrepresented and welcome a guide who takes the lead in the process. The best guides are those that are willing to explore, not merely follow a predetermined path even when it seems to be leading in the wrong direction. But it’s a two-way process and a key consideration is always looking at the concerns of the bereaved. That involves dialogue from an early stage; clarifying what families are upset about; understanding what is important to them; explaining why something isn’t relevant; and doing all of this when people are going through the trauma of bereavement.
A fully adversarial court, with its statements of case and strict rules of procedure, would be far more rigid and less helpful. Indeed, it would be impossible for a passive court to engage in dialogue with one of the “parties” before the case has even begun.
This early dialogue of course is usually the job of the Coroners’ Officers and I am in awe of their skills. Their job is difficult, exhausting, pressurised, traumatic, and it requires almost saint-like virtues.
I’m a great fan of the inquisitorial system, but it is important to be aware of its limitations. These were set out very well by Sir Jack Jacobs many years ago in his series of Hamlyn Lectures entitled The Fabric of English Civil Justice. I read those as a student. Jacobs’s text, along with the sherry and tuition of a great supervisor, Neil Andrews, gave me a lasting interest in civil procedure. An interest in civil procedure is normally quite a lonely one. Jacobs refers to the general opinion of civil procedure as “remote, incomprehensible, mystifying and in some ways terrifying”. He says this: “Civil justice … is generally, or at any rate popularly, regarded as being highly technical, rule-ridden, formalistic, shrouded in mystery and serviced by its own cloistered priests, some of whom perform their ritual capers and speak an unfamiliar language in strange surroundings and in the higher strata dressed in ornamental garb.”
Jacobs is very eloquent in his support of the adversarial system and its history, and is somewhat critical of the continental inquisitorial system. From the 13th century the adversarial system may have been seen as a protection from the trial by inquisition introduced by Popes Innocent III and Gregory IX. The characteristic of the inquisition was that it collected testimony in secret. Adversarial openness may have protected against that although I think mediaeval juries also, interestingly, had an investigatory function. Both adversarial and inquisitorial systems can still assume opposing parties, controversy, conflict and combat. The difference is simply the method of adjudication.
Incidentally, there were other forms of early mediaeval dispute resolution such as trial by battle, trial by compurgation (which is basically deciding the outcome of the case by the number of people who swore you were correct), and trial by ordeal. I wonder if many court users feel that these methods are still an integral part of the modern system?
For coroners therefore, one of the important limitations of the inquisitorial system may be what we call it. Better terms may be “investigatory”, “activist” as opposed to “passive”, or “interventionist” systems. They may be better descriptions of what we do because our job isn’t primarily to adjudicate on conflict, although plenty of inquests do of course require that. But we still investigate even if no one is watching and, very often, even when no one is even interested.
Plenty of people die alone and undiscovered for a long time. I have done inquests on people who are found in their homes as mummified remains. I also did an inquest on an unknown stowaway who fell from the wheel well of a plane as it was descending to land at Heathrow. The body landed next to someone sunbathing in their garden, a reminder perhaps that death can cause indiscriminate trauma and doesn’t only affect the bereaved. We don’t often have cases where the question of “who died” is problematic, but the investigation in that case was extensive; it required the police to travel to Kenya and South Africa – I don’t know if they found that to be a problem or not! – but we never did find out who the deceased was, where he came from or who his relatives were.
The term “pen portrait” is comparatively new, but it has always been a really important part of the inquest to ask the relatives for some background context about the deceased, to describe them as people, to remember their life and not simply their death. That insight into people’s lives is one of the privileges of the job. One of the statutory questions we have to determine is “who the deceased was”. I wonder if that might legitimately include more than just their name. Yet we didn’t even find out the name of the man in the wheel well or where he was from, let alone his life story. That has its very own poignancy and, to my mind, is genuinely sad.
The civil adversarial system assumes disputes are the private property of the parties. The principles of party control, party autonomy and party prosecution, all probably self-explanatory, would be difficult to reconcile with our role as coroners. An inquisitorial system assumes that there is a public law right over a dispute, requiring a search for truth and adjudication as a last resort.
Jacobs was calling for reforms and many of those were introduced by Lord Woolf and remind us that adversarial systems are much more interventionist than they were. For example, Jacobs, quoting many famous judges, draws attention to surprise and technicalities as legitimate legal weapons in civil justice. That would certainly raise eyebrows now. Jacobs also draws attention to the concept of legal gladiators as having the effect of setting parties apart. I think all coroners would recognise the harm that that can cause in an inquest.
So what about the term “interventionist” to describe what we do? As a judge, if you descend into the arena, are you likely to have your vision “clouded by the dust of conflict” as Lord Greene suggested in 1945 or, per Lord Denning, do we “drop the mantle of judge and assume the role of advocate”? These are important concerns. There is undoubtedly skill in asking neutral but penetrating questions, but is there also a contradiction in trying to do so? Does neutrality necessarily equate to ineffectiveness? My view is not, but that of course could be the product of an all too conscious bias. But my sense is that, for most of our cases, witnesses don't need the truth bullied out of them. Contradictions are better resolved by calm use of logic and an understanding that memory isn’t perfect, nor are people, and nor certainly are contemporaneous records. I’m curious to see any evidence that confrontation provides a better insight into the truth, that people’s memories are better when they are put in fear. For me, the value that advocates provide at an inquest is the forensic and detailed (but, please, not too detailed!) scrutiny of the evidence. There shouldn’t be too much difference between the questions of the family’s advocate and those of the coroner. Advocacy doesn’t have to be adversarial.
So far, I’ve been talking about flexibility and the coroner’s power to set the scope of the inquest/the investigation and I am now going to turn to a very different type of power, so different that I might be told off for even calling it a power.
Prevention of Future Death reports, known as PFD reports or Regulation 28 reports, are written by a coroner if anything revealed by an investigation gives rise to a concern that circumstances creating a risk of other deaths will occur/or continue to exist, and the coroner is of the view that action should be taken to reduce the risk of that occurrence. Then the coroner is under a duty to report the matter to someone who the coroner believes has the power to take that action and that person must then make a written response. The duty is normally considered at the end of the inquest because that’s when all the evidence is available, but in rare cases the duty will be apparent at an earlier stage of the investigation. And coroners have a duty to make a report if the criteria are met. It is not an option.
I categorise it as a power in this talk for three reasons:
It is contained in Schedule 5 of the Coroners and Justice Act which is entitled “Powers of Coroners”. So I’m not alone in mistaking it for a power. It is for the coroner to decide whether or not they are concerned. They must decide judicially, considering the evidence, listening to submissions and giving reasons. The threshold for being concerned is said to be low. It is for the coroner to articulate the concern. How that’s done can be important in what response is offered but, to be clear, the coroner does not recommend or determine what action should happen. In writing a PFD report I’m raising a concern; I’m not telling anyone what to do in response to that concern. Again, this is an important separation from politics.
The purpose of the PFD report is to do with public health and public safety. So in one sense it’s surprising that they have become very hotly contested. The submissions on whether the PFD duty is triggered are often far longer than those on, for example, what conclusions should be left to a jury.
You might have hoped that all interested persons, whether they see themselves as parties, adversaries or just onlookers, might agree on the benefit of public welfare. So it’s interesting to speculate why PFD reports have become such a battleground. Again, just some preliminary thoughts on why that may be.
In most courts the process is set up to deliver a determination. That happens at the end, and that determination has a consequence: a verdict, a punishment, an award of compensation, exoneration, although I know there are a lot of defence solicitors here, so you may not feel that exoneration ever happens, but there is a consequence. For inquests, the consequence and the investigation are very often the same thing. The coroner's conclusion is often fairly obvious, even banal. For example, conclusions such as “drug or alcohol related”, “road traffic collision”, “industrial disease” and, very often, “suicide” have never been in doubt during the whole investigation. The answers to relatives’ questions are provided piecemeal throughout the entirety of the investigation and usually not in the final conclusion. The answers may come from the autopsy report, the toxicology findings, the police statements about how and where someone was found, the statements from clinicians, the hospital records, the hospital investigation as well as from the oral testimony at the inquest.
Inquest hearings are stressful for all concerned and yet, in many cases, the coroner’s conclusion doesn’t seem to provide any resolution; it simply summarises what is already apparent. Emotionally, the end of the inquest is sometimes like the bursting of a dam. Relatives who have been holding it together during the investigation are now finally allowed to move on in the grieving process. So I wonder if there is a sense in which the inquest conclusion isn’t seen as sufficient to mark the grief that has been put on hold. PFD reports are not a punishment; they are not a type of sentencing power and yet there may be a feeling that more is needed than the brief neutral description of how someone came by their death.
How are the PFD reports seen from the point of view of an organisational interested person, very often of course the NHS? They have probably conducted their own investigation into the death and writing a PFD report can be seen as a criticism of that investigation. It generates more work on top of the work that the hospital has already put in to correct its procedures. For example, as I understand it, they have to notify the CQC (Care Quality Commission) about PFD reports and provide the CQC with updates as to how they are responding to the concerns. That is quite a weighty “non-punishment”. My guess is that organisations sometimes regard the coroner’s view, based on a snapshot of a single event at a particular time, to be less well informed than their own judgments, to lack the context of which they are more fully aware.
Advocates too seem to take PFD reports personally. I’ve heard advocates say “I’ve never had a PFD report made against me”. I presume they mean against the organisation they are representing but it’s sometimes not very clear.
The timing of arguments on PFD reports can be poor, coming, as they do, usually at the end of the inquest and after the conclusion has been given. Inquests can deliver a helpful catharsis for families but then starting an argument about a PFD report can reignite all the tensions. So I think it’s important to remind ourselves that there is an important public function in seeing how a system bears up in practice; in looking at the concrete example that a snapshot provides. PFD reports do of course have to be well informed, based on the evidence and not written for the pure sake of it, but they do only raise concerns.
Ending where we began with Ella’s case, we might illustrate some of these points about PFD reports. The submissions on the PFD report for Ella’s case were highly detailed. Perhaps uncontroversially I raised a concern about the provision of information to people with asthma, but of course we don’t want to dwell on anything which is uncontroversial. Many of the submissions asked for recommendations to address specific criticisms, often at a very high level of Government policy. For example, recommending a new Clean Air Act, criticising the delay in implementation of Low Emission Zones and Clean Air Zones outside London. They were recommendations made by experts with considerable knowledge and experience and given the subject matter of the inquest it was understandable why those matters were raised. But they were asking me to make recommendations, and recommendations on matters which required a far wider consideration of information than was possible at the inquest.
Let me give an example of what may be a difficult and fine distinction. I was asked to raise a concern that the new Ultra Low Emission Zone in London did not include the South Circular. Now that had been the subject of much public debate, much political deliberation, and a political decision had been made about it. That seemed to me like the domain of elected representatives. On the other hand, I did consider it appropriate to raise concerns in the PFD report that national particulate matter pollution targets were not based on World Health Organisation guidelines. The evidence at the inquest was that this is the cause of tens of thousands of additional deaths every year. It still seems to me that that meets the threshold for expressing concern.
And that probably also meets the very low threshold for ending the talk. Thank you all very much, indeed. (Applause)
Discussion
The difficulty, it seems to me, is that if you start giving coroners the power to enforce their Prevention of Future Death reports, then what is the boundary with politics? The reason it’s important that I raise a concern but not make a recommendation is, for example, if I say, “The ENT Department needs more resources” and those are then taken from the Obstetric Department. It is not for me to make even that small political decision.
All I can say is that I think you have put your finger on a real gripe amongst many people, but I think there is a reason for us not interfering more.
Very often, you are going to be criticising people and you are not in an adversarial jurisdiction, it is an inquisitorial jurisdiction. Where we have developed the inquisitorial jurisdiction in other areas over the last 70 years, we have developed equipment of Maxwellisation whereby the inquisitor is required to show their hand in private to parties and to say what factual determinations they are likely to make, or are thinking of making, and what criticisms they are thinking of making. Would it assist you, as an inquisitor, if you were required to do that so that you would have the benefit of submissions from people who might wish to comment? I know that in exceptional cases you can ask for submissions but this would be different. This would be where you were being forced to show your hand in private before you criticise people in public who very often have no means of defending themselves subsequently.
I can see the theory, but I wonder if actually in practice it tends to be like that anyway; but, like all the questions, I need to take it away and think about it in more detail.
Now for the question: do you think that coroners should (a) ensure that responses are received within 56 days; and (b) that they are likely to prevent future deaths nationally?
In terms of monitoring the response, it’s again so difficult. We can’t write back and say, “We’ve heard that before; you’ve told us every month that you’re going to write better clinical records and put training in place.” There are certain recidivist organisations with very high staff turnover and very short memories. Coroners are local judges, which is an important point, and we do see the same organisations and the same institutions time and again; we work with the same prisons, the same hospitals and the same stretches of road. So we should be using that local knowledge and if we see repeated PFD reports on the same issue, then I think that should help us focus down on better quality concerns, if you like. Again, I would be very interested to see the research which sounds very, very interesting.
Thank you all very much, indeed.