Why I withdrew my challenge to a secret inquest

This case demonstrates how a change to the procedure for coroners' inquests has eroded open justice.

I am sad to report that a secret inquest has taken place, one which I will not be challenging, for reasons which have left me with some disquiet.

Please note: if you read ahead, this is aimed at professionals working in the coronial (and other) courts. To outsiders, this may read as insensitive. It is not intended to be.

Background on inquests in writing (IIW) and open justice:

Recently I have been raising concerns about the open justice issues posed by inquests in writing (IIW), a post-2022 regime which allows coroners to conclude inquests without a public hearing.

Because there is no public hearing, the public and the press are totally reliant on the coroner telling them what was decided in the paper inquest. If a coroner refuses to tell a journalist about their ruling in an IIW, then it is de facto a secret inquest. My position is simple: using an IIW to hold a secret inquest is unlawful and not what parliament intended when it introduced the IIW regime.

I successfully challenged the Senior Coroner for Buckinghamshire’s decision to attempt to hold a secret inquest in writing into the death of a 38-year-old man called Graham Whelan (you can read Joshua Rozenberg KC’s full account of the challenge here).

The same coroner has also refused to disclose the outcome of a different inquest into the death of a 16-year-old boy, a decision I had also challenged (see Private Eye #1584). But I have now abandoned this challenge, after speaking to one of the boy’s parents.

My challenge to the second secret inquest:

In short, when I initially applied for the record of inquest and the coroner’s ruling from the IIW into the boy’s death in late December, the coroner declined to disclose these documents “for reasons of family safeguarding, security and wellbeing”. He raised some other issues in a rather vague way. But on the face of it, there was nothing I saw which justified a refusal to disclose.

On the contrary, I have reason to think there could have been some public interest served in reporting on the death of such a young teenager. I obtained his death certificate from the local council, which revealed his medical cause of death was ‘positional asphyxia’ - a rare cause of sudden death - and the coroner concluded his death was an accident. (Note: I hasten to add that, contrary to what a different senior coroner recently insisted to me, the death certificate is not an adequate substitute for the inquest documents, because while it contains the medical case of death and the coroner’s short form conclusion, it does not include the circumstances of how the deceased died.)

It is precisely because someone so young has died in such an unusual way that I suspect the coroner’s ruling could potentially have contained some information that may have benefited the health and safety of other members of the public. But I will never know.

After I renewed my application last month, the coroner’s officer informed me one of the boy’s parents wished to speak with me. Last week, we did speak on the phone. I will not go into the details of what was said, because it was off the record and the family details are not relevant to the procedural issues which I will shortly get into. Suffice to say, following the conversation, I decided to withdraw my application.

I do still feel I was legally entitled to obtain those inquest documents. But sometimes insisting strictly on your legal rights is not an adequate substitute for moral decision making. In this very unique case, pursuing my application would not have been the right thing to do.

This case highlights a fundamental problem for open justice posed by the IIW system:

Leaving aside the unique circumstances which I was presented with by this boy’s parent, I think this outcome does demonstrate what I ultimately feared, which is that IIWs are now used as a means to hide from public view things that would, prior to the introduction of the IIWs, have been aired in public in the usual way.

Let us be clear: prior to the introduction of IIWs, this boy’s inquest would have gone ahead in public regardless of the family circumstances and could have been reported, possibly with some reporting restrictions if necessary. All inquests are public hearings and are subject to the principle of open justice. There is nothing to suggest that, when parliament introduced the IIW regime, it envisioned that fundamental position shifting. But it has shifted. Now, not only can a journalist face a reporting restriction, they can be faced with the prospect of not being able to observe (or in this case read) the inquest at all.

Consequently, press freedom itself has shifted from the rock to the sand. It is no longer ‘open court: no ifs, no buts’. Instead, now we are stuck with ‘open court: well, unless, it depends’.

Journalists have, of course, always had to contend with family members approaching us post-inquest and asking us not to publish anything. But that is very different from this situation, because previously: (A) we already had a full note of the inquest and so could give an informed answer about whether the circumstances merited reporting or not and (B) there was no realistic prospect of the family being successful if they launched a preemptive legal challenge to prevent us from reporting in the first place.

In this situation, I had no firm idea of whether the circumstances of the boy’s death would have merited a report and I was facing the uphill battle of seeking disclosure in what was shaping up to be a forcefully contested application. My only route, if I wanted to take this all the way, would be an expensive day in the High Court for judicial review. Given the lack of statutory rights for journalists seeking IIW documents, success in this JR was not guaranteed.

Also, the very situation I faced here, where I was made to make my case for open justice directly to the grieving parent of this boy, seems - to my mind - to be very likely to have a chilling effect on journalism. It would be very, very different talking to a detached professional - like a solicitor representing the family or the coroner himself. One would feel comfortable arguing the merits of an open justice application in that situation. But debating somewhat academic points of principle over the phone with a grieving parent?

It does seem to me to be completely inappropriate that the Court effectively abrogates its duties to decide these issues and creates a situation where the burden is put on the journalist to persuade the family of the deceased. I cannot think of many reporters who would be happy to bulldoze ahead in those circumstances.

All of the above leads me to the inescapable conclusion that, regardless of what parliament intended to do when it introduced IIWs, their introduction has made a significant inroad into the principle of open justice in the coroners courts. Following my previous successful challenge in Whelan, I am no longer as pessimistic now as I was then, when I suggested it was “the end of open justice” in coroners courts. But I do believe the press have, without having realised it, lost a significant amount of ground in this area.

It is something that may cause further problems somewhere down the line unless Parliament introduces a statutory right for journalists to have the ROI and ruling following IIWs, as was called for by the Chartered Institute of Journalists before the regime was introduced. Unfortunately, that warning went unheeded.