On 11 June 2020, the Chief Coroner published his Guidance No 38, ‘Remote Participation in Coronial Proceedings via Video and Audio Broadcast’. This guidance builds upon Guidance No 35 dealing with hearings during the COVID-19 pandemic which we have commented on in previous blogs.
Since the lockdown began most inquests have been postponed, with coroners opening inquests and holding documentary inquests where no witnesses are called to give evidence.
The current pandemic has seen the increase in use of partially remote hearings where the court is satisfied that it is just to do so.
It is clear from this and the earlier guidance that the coroner must be physically present in court at all times during a hearing and should not be conducting wholly remote hearings. In this new guidance , the Chief Coroner highlights that there is an inherent jurisdiction for coroners to permit some remote participation in proceedings (Rule 17 of the Coroners (Inquest) Rule 2013 makes provision for witnesses to give live evidence via video link).
The Chief Coroner’s view is that partially remote hearings should take place wherever possible, if the technology allows, it is in the interests of justice and its use consistent with the administration of justice. However, this should not inhibit the use of physical courtrooms in line with social distancing guidelines and as long as they can be accessed and used safely.
If coroners consider that it is appropriate to order a partially remote hearing they need to give those affected an opportunity to make representations and will need to consider those alongside an interests of justice test. If making such a ruling coroners should set out their reasons to interested persons at the conclusion of any PIR or in writing by letter or email.
Coroners are advised to make it clear to all parties concerned that whether someone is present physically in court or remotely will not affect their determination of any issues that arise or any conclusion they may come to. The usual warnings should be given, for example that witnesses should not confer on their evidence.
The Chief Coroner also makes it clear that it is his view that partial remote hearings are generally not suitable, save in the most exceptional and limited circumstances, for any jury inquests (although jury inquests are now taking place in the criminal jurisdiction).
This guidance also reviews the prohibition of livestreaming or visual or sound recording court proceedings. warnings must be given about this.
Coroners cannot provide an audio link to facilitate access to either the public or the media from outside the court building because s9 Contempt of Court Act 1981 prohibits it except by express leave of the court. For leave to be given the coroner should give permission for the use of such an audio device for use in the court building and vary the effect of s9.
This guidance is likely to lead to the relisting of some inquests which have been adjourned and those advising interested persons need to consider whether a partially remote hearing is suitable. Each inquest will need to be considered on its facts and merits. It will be interesting to see if partially remote hearings will continue to be arranged when the physical use of courtrooms has resumed.
Jane Lang, Partner, BLM