Wednesday, 9 April 2014

Coroners and Cyclists - do they mix?

I have had cause on these pages to comment upon a number of Inquests investigating the death of cyclists in Road Traffic Collisions and have also appeared in, but not commented directly upon, Inquests at which I have held a brief for a bereaved family.  More often than not the inquest is an unhappy experience for the families involved.  The question needs to be asked as to whether it is a useful process and whether it can be further improved.

The strength of the Inquest system is that it may be the only investigation into a death.  If a police investigation reveals insufficient evidence to justify a prosecution of any individual for causing the death, and if too there is no civil claim for compensation, then the Inquest may represent the only opportunity to hear evidence of what has happened.  Further the prospect of an impending inquest may help incentivise those responsible for investigating the death (in RTC cases the police) to ensure they have done a thorough job which will stand up to public scrutiny.  Finally, and importantly, the Coroner has the power to issue a PFD (Prevention of Future Deaths) Report to any person whom she believes has the power to take action to prevent future deaths.

The foremost weakness of the current system is that its scope is somewhat limited.  Historically the Coroner's Court used to have the power to point the finger and, indeed, commit a named person to the Criminal Court to stand trial.  However this was thought to lead to problems and has been changed.  In particular the Coroner's Court is circumscribed by The Coroners and Criminal Justice Act 2009 which provides that:

"5 Matters to be ascertained

(1)The purpose of an investigation under this Part into a person's death is to ascertain—
(a)who the deceased was;
(b)how, when and where the deceased came by his or her death;
(c)the particulars (if any) required by the 1953 Act to be registered concerning the death.
...
(3)Neither the senior coroner conducting an investigation under this Part into a person's death nor the jury (if there is one) may express any opinion on any matter other than—
(a)the questions mentioned in subsection (1)(a) and (b)..;
(b)the particulars mentioned in subsection (1)(c).This is subject to paragraph 7 of Schedule 5 [which deals with PFD Reports]."

Most of this is rather mundane.  It cannot possibly be supposed that the panoply of a Court system is required to record who the deceased was or when and where the deceased came by his death.  The real question is 'how' which is a question that may be interpreted as widely, or narrowly, as the Coroner thinks fit.  The prohibition on the expression of opinion on other matters provides a broad limitation of the scope of the Inquiry and furthermore the Act goes on to provide that:

"10 Determinations and findings to be made

(1)After hearing the evidence at an inquest into a death, the senior coroner (if there is no jury) or the jury (if there is one) must—
(a)make a determination as to the questions mentioned in section 5(1)(a) and (b) .., and
(b)if particulars are required by the 1953 Act to be registered concerning the death, make a finding as to those particulars.
(2)A determination under subsection (1)(a) may not be framed in such a way as to appear to determine any question of—
(a)criminal liability on the part of a named person, or
(b)civil liability."

The trouble then is that following a RTC the Coroner will inevitably rely very heavily on the evidence of the police (who have investigated a collision with a view to finding if there is evidence of a criminal offence).  A report will be admitted which may well conclude (say) that the collision occurred as a consequence of the deceased running a red light and no fault has been disclosed on the part of any other person.  The Coroner then, mindful of section 5 and 10, will say something like "I find the deceased died as a consequence of running a red traffic light but I must stress that I am not attributing any kind of blame to him".  Which is, of course, doublespeak.

Further trouble arises if the deceased's family want to test the evidence of the police investigator that the deceased went through a red traffic light.  Maybe there is good reason to doubt the veracity of an account given to the police by a motorist, who ran down the deceased from a conflicting direction, that he (the motorist) went through a green light.  Maybe parts of the motorist's account are demonstrably wrong but the police had not picked that up.  Maybe the motorist claims always to comply with traffic lights but CCTV shows him going through a red light two minutes earlier.  There might even be real grounds to question whether the motorist is a witness of truth.  If he is not challenged at the Inquest he will probably never be challenged and quite often, if not usually, the Coroner will come to the end of his questioning of the witness without making an effective challenge himself.

Usually the family will not have a lawyer (another weakness of the system because the motorist will invariably have a lawyer funded by his insurers).  If they do have a lawyer, then (certainly if a barrister) she will have a duty fearlessly to protect her client's interests and strive to displace the conclusion that the deceased was solely to blame.  She may then be metaphorically kicked around the Court by the Coroner who says nothing may be asked implying that the motorist is to blame and who sabotages the line of questioning.  This is not a problem for the lawyer but it is a terrible spectacle to inflict upon the family.

It is open to a Coroner to interpret the scope of his Inquiry widely or narrowly.  If narrowly then there is no legitimate purpose to the calling of the police investigator and the finding will simply be death at a certain time and location due to a road traffic collision.  This though is something of a lost opportunity - cyclists should not be dying on our streets due to road traffic collisions and the cause of the collision should be investigated, as too should the quality of the police investigation.  An impartial investigation does not involve solely dwelling on the responsibility of the deceased but receiving evidence and allowing questions that go to the responsibility of others.  The law does not prevent this (as demonstrated at numerous high profile Inquests) what it requires is that the Coroner takes care in the framing of his determination and findings.

I speak generally and nothing should be taken to relate to any particular case or Coroner.

7 comments:

  1. Martin,

    You seem to be stating in the penultimate paragraph that Coroners CAN make statements which lead towards suggestions for reducing the danger which led to a cyclists' death, although you are very circumspect about this. Presumably this is becasue the process involved requires the Coroner him/herslef to be highly circumspect?

    One example - pointing the finger at Camden Council is very recent https://twitter.com/RossLydall/status/453571463510233089/photo/1 . In my expereince teh Coroner can also (in effect) point the finger at the cyclist even if they were manifestly not at fault, or make no comment on drivers who are totally at fault for their or another person's death.

    I kbnwo RoadPeace have been very concenred about this for some time.

    I think Coroners, along with processes of civil law and the investigations by the Police are all important in terms of directing attention at the source of danger.

    So how do we move forward in this area, particularly bearing in mind that Coroners are often apparently sharing the usual motorists' prejudices.?

    Dr Robert Davis, Chair, RDRF

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  2. Thanks for the comment, Bob. The Coroner was not pointing the finger at Camden for causing the death but criticising its response afterwards for the purposes of a PFD report. She was definitely not interested in the fault of the motorist but blamed the victim. As a first step Coroners could be educated that a 2 sec lapse in attention of a cyclist is not on the same level of culpability as a similar lapse in a long vehicle.

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    1. Meant 'in the driver of a long vehicle'!

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  3. Thanks Martin.

    See also the same Coroner today (there is a rash of them now in London because of the concentration fo half a year's deaths in two weeks last year) http://www.standard.co.uk/news/london/woman-killed-by-hgv-at-bow-roundabout-had-cycled-through-a-red-light-coroner-rules-9250220.html .

    There is definitely finger pointing here, with what appears a lack of real evidence to back up her claims that the cyclist went through a red light. Or rather "most probably" - a standard of evidence which would fail in a cirminal court where , as I udnerstand it, you have to have "beyond reasonable doubt".

    Also see the comments about Bow roundabout - in fact the principal problems at bow roundabout, certainly for those going straight over the flyover (the majority of cyclists) the problems are still there.

    Robert Davis

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    1. The Coroner will make findings on the balance of probabilities. However it is important to note that these findings are not relevant or even admissible in any subsequent civil or criminal proceedings. Personally I do not think the finding on the red light should have been the end of the Inquiry. She was still in a position she could have got into by a lawful route and the HGV was still turning left.

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  4. Always so easy to point the finger at the DECEASED ! It allows the Insurance Company/ies to evade their responsibility to the Victim's Family ?

    Has UK Law arrived at the point where the Family of a Victim , will be reduced to Poverty , so that Insurance Corporations can continue to Bolster their Profits ? Time that the WHOLE System was reviewed ! Would really like to know what changes were made in the " 2009 Justice Act " that has turned the system into a "toothless relic "?

    When people are able to come back from the Dead , there will be many Traffic Incident Perpetrators that will be brought to book for their NEGLIGENCE ! Meanwhile Families will continue to be treated to " disdain & neglect " whilst the UK refuses to introduce " Strict Liability Laws " which are prelevant in the EU .

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