The Chief Coroner published new guidance on 28 June 2022 on remote attendance at inquests. This new guidance will have implications for how healthcare providers prepare for attending Inquests as matters start to move on from the pandemic and the direction of travel is towards getting back to more in person hearings, particularly for witness attendance.
Remote observation by the public, including the media
- On 28 June 2022, section 85A of the Courts Act 2003, and the Remote Observation and Recording (Courts and Tribunals) Regulations 2022 (‘the Regulations’) came into effect. It is lawful to use video/audio livestreaming to transmit proceedings to the public and/or press as a result.
Remote attendance by participants
- It is lawful to use video/audio livestreaming to hear evidence from witnesses and/or for participation by Interested Persons and their representatives;
- Participants (ie witnesses, Interested Persons and representatives) do not, however, have the right to attend hearings remotely;
- Participants can apply to take part in proceedings remotely, but applications will be considered on a case-by-case basis and may be refused;
- Before deciding whether to allow a participant to attend proceedings remotely, coroners should give other affected participants an opportunity to make representations.
- The coroner can only permit a witness to attend proceedings remotely where it would improve the quality of the evidence given or allow the inquest to proceed more expediently;
- The coroner must also consider whether remote attendance would impede the questioning of the witness;
- When deciding whether to allow remote participation by Interested Persons and legal representatives, coroners must balance the interests of justice and the interests of all those attending the proceedings;
- As above, it is important for coroners to remember that the interests of justice are wider than the circumstances of the individual case and holding an effective hearing;
- The Chief Coroner considers it is often beneficial for participants to attend hearings in person and that remote attendance should not normally be permitted purely because a participant would prefer it.
Public access to hearings
- Coroners must ensure that there is appropriate public access to all hearings, including those that are conducted using remote means.
- Coroners must currently be physically present in a courtroom when conducting hearings. Individuals have the option of either observing hearings in person or applying for permission to observe hearings remotely.
- There is no automatic right to observe a hearing remotely. Individuals are entitled to apply for permission to join the proceedings remotely, but applications will be considered on a case-by-case basis and may be refused.
- When deciding an application to observe a hearing remotely, coroners must refer directly to the legislation and ensure that they apply the test in regulation 3 of the Regulations and consider:-
- Whether they are satisfied that it would be in the interests of justice;
- there is the capacity and technological capability to enable transmission;
- it would not create an unreasonable administrative burden;
- take into account mandatory considerations (ie, timing/resources etc) and any other relevant matters;
In taking into account the interests of justice the coroner can consider the broader circumstances, rather than only those of the individual case and holding an effective hearing. They include:
- The efficient despatch of business overall;
- The availability of coroners and coroner’s officers, additional staff, technical equipment, and other resources;
- Temporary resourcing difficulties, (for example because of high staff turnover, or IT challenges;)
- The relevant circumstances may vary widely between different coroner areas, and within the same area at different times;
- A refusal to make a direction for remote attendance is not the same as denying public access to the proceedings;
- Individuals seeking remote attendance will need to explain why it is in the interests of justice to allow them to observe a hearing remotely when there is the option to attend in person;
- Coroners will make judicial decisions about remote observation based on the circumstances of each individual case.
- If a jury hearing with remote participants takes place, the jury must be visible to all remote participants;
- The coroner and any jury must be physically present in the courtroom. However, rules will be made in due course to enable coroners and juries to attend hearings remotely;
- Under the new rules, juries will only be able to attend remotely if all jurors are present at the same place when accessing the hearing;
- It is the Chief Coroner’s view that even once rules are made it is unlikely to be in the interests of justice for jurors to attend proceedings remotely unless there are exceptional circumstances.
David Reddington, Hill Dickinson