Under oath, not under siege: Special Measures in the Coroner’s Court

Inquests are unlike most other legal proceedings in England & Wales. They are inquisitorial, not adversarial. There are no “sides” or “parties” in the typical sense. The coroner’s task is to establish who the deceased was, and how, when, and where they came by their death.

For witnesses though, particularly those who are staff/officers who interacted with the deceased in the lead up to their death, the experience of attending and giving evidence at an inquest can still be daunting. Evidence is given in public; proceedings are often reported; and questioning, albeit not supposed to be adversarial, can be searching and robust – particularly where there is a suggestion of a failing.

Special measures are focused on enabling witnesses to give their best evidence, fairly and accurately, in circumstances that recognise vulnerability, trauma, or particular needs. Importantly, special measures are not about shielding organisations or individual witnesses from scrutiny. To the contrary, where special measures are sought and deployed properly, they can enhance the coroner’s ability to get the best evidence from the witness.

Why have special measures?

That witnesses give their best evidence is also advantageous for organisations who may be facing the prospect of claims for compensation from claimant firms who sit through the inquest looking (and hoping) for a chink in the armour through inquest witness evidence. Not only should witnesses be thoroughly prepared in advance of their appearance (including a thorough conference with your Weightmans lawyer, and perusing our useful guide: Being called to give evidence at a inquest), but organisations should also consider whether special measures may be required for a vulnerable witness.

Beyond all of that, one mustn’t lose sight of the fact that witnesses involved in the circumstances surrounding someone’s death, particularly a sudden, catastrophic, violent, death, or mass-casualty events, will experience some degree of trauma. The Bench Book recognises that:

A witness’ vulnerability may not always be the result of immaturity or a formal medical or mental condition. On occasion the emotional trauma experienced by a witness from being involved in the circumstances of the death and then being asked to recount their role in a public hearing can lead the inquest process itself to further traumatise the witness and so impair the quality of the evidence they are able to give. For such witnesses, spending lengthy periods in the witness box answering repetitive or oppressive questions is likely to be counterproductive and may significantly impact upon their ability to assist the court.

Special measures while giving evidence may be a small yet important part of helping that individual to deal with that trauma or, at the very least, minimise the contribution to it of giving evidence.

Special measures in inquests

Special measures are practical arrangements designed to help a witness give their best evidence. Examples include:

• Giving evidence from behind a screen (rule 18)
• Giving evidence by video link (rule 17)
• Giving evidence in private
• Being accompanied by a support person
• Setting ‘ground rules’ for the questioning of a witness
• In exceptional circumstances, anonymity for witnesses and reporting restrictions

Coroners have a broad discretion. There is no automatic entitlement to special measures, and the coroner must balance witness’s needs against the fundamental principle of open justice. The coroner must consider whether special measures for a witness are necessary for the witness to give their best evidence and not simply convenient or desirable. 

Coroners do, however, tend to be receptive to well-reasoned applications that are supported by clear evidence. 

Advancing the best application

A good special measures application will specify the measures sought, and the reasons for why they are necessary. The application will be supported by evidence, including (where available) medical/psychological information and often a statement from the witness seeking the special measures. 

Applications should be made as early as possible once the witness has been identified and is likely to be called to give evidence. 

In some cases, depending on the nature of the issues, whether a State body is involved in the death, and the nature of the special measures/reporting restrictions being sought, the coroner may hold a pre-inquest review hearing to determine the issue. They may wish to hear from the witness or from others within the organisation, and to hear oral legal argument.  In others, the coroner may be prepared to deal with the application “on the papers”.

Managing expectations

Witnesses must be spoken to in order that their own views on (and any relevant evidence to support an application for) special measures can be elicited. But their expectations must be managed. Do not guarantee that they will receive the measures they express a wish for, or that they will receive them at all. Whether to grant special measures remains a matter for the coroner. It is better a witness is prepared for not receiving the special measures they would like and then gets them, than for the witness to assume they will get the special measures and then not. 

Inquests can be demanding for all involved. Special measures, while not a panacea, can make a real difference in allowing witnesses to give clear, thoughtful, and accurate evidence. 

For organisations, an informed approach to witnesses and special measures is part of good inquest management. It supports witnesses, assists the coroner, and ultimately contributes to a fair, accurate, and more effective inquisitorial process.