Naomi McLoughlin summarises The Chief Coroner’s Guidance No 38

Remote participation in hearings  in the Coroner’s Court

As more courts start to open for in person hearings across the country, the Chief Coroner has issued guidance number 38 to assist Coroners with conducting hearings during the Covid-19 pandemic. This guidance focuses on remote participation in coronial proceedings via video or audio and is due to reviewed periodically.

This guidance comes after the issuing of guidance number 35 on 27 March 2020 which considered hearings during the pandemic. That guidance was considered by Kirsten Mercer on 30 March 2020 and can be found here.

Guidance number 38 informs us that:

• A partially remote hearing can go ahead;
• It is unlawful to live-stream any proceedings from a coroner’s court;
• Live video can be used to hear evidence and/or for participation by interested persons;
• Audio only lines can be used to enable the public and/or press to attend the hearing, as long as s9 of the Contempt of Court Act 1981 has been expressly dis-applied;
• The coroner must be physically present in the court when conducting a hearing.

What are partially remote hearings?

Where the coroner is physically present in court but other participants (interested person or the family, not the public or press) are participating remotely. Wholly remote hearings (where the coroner is not present in court) should not be conducted in order to satisfy the requirement for open justice.

The guidance supports partially remote hearings taking place where possible, if the technology allows, it is in the interests of justice and its use is consistent with the administration of justice. It is clear that evidence from any witness can be given via video or audio and video or audio links used to allow remote attendance at the proceedings by interested persons or the family.

Partial remote hearings are considered generally not suitable, save in the most exceptional and limited circumstances, for any jury inquests.

Coroners can order a partially remote hearing. Those affected will be given the opportunity to make representations and the coroner will need to consider those representations and the interests of justice test.

Whether partially remote hearings go ahead will depend on the technology that the local authority has available and the technology available within the courtroom. The guidance does not provide a suggested platform for use. This could provide the opportunity to avoid some of the technological difficulties that have been experienced by other jurisdictions when attempting to use certain platforms.

The use of partially remote hearings however, should not according to the guidance inhibit the use of physical courtrooms which can be used in line with social distancing guidelines, and as long as physical courtrooms can be accessed and used safely.

Public participation

The guidance is clear that all coroners must ensure that there is public access to hearings. Public or press access can be achieved by allowing people physically into the courtroom or remotely by way of audio participation only. Audio participation requires an express variation/disapplication of s9 Contempt of Court Act 1981 which can be given at the start of any inquest proceedings.

Broadcasting/Livestreaming

Whichever technology platform is used, participants must not inadvertently livestream, broadcast or record proceedings. This includes the taking of photographs, screenshots, video recordings or broadcasts of hearings. Audio broadcasting by way of tape recorder for example is also prohibited unless expressly permitted by the court.

All members of the inquest team are very familiar with all platforms used for remote hearings and virtual conferences. The team are very experienced in conducting remote hearings, having now been regularly attending remote hearings and conferences since the start of the pandemic. Any member will happily assist with any questions about the technology you may have or advise as to which platform may be most suitable for the hearing or conference.

All the up to date guidance and hearing protocols in relation to Covid-19 can be found here.

Guidance number 38 can be found here.

For Caroline Wood’s previous commentary in relation to Guidance number 37 please click here.

For Kirsten Mercer’s previous commentary in relation to Guidance number 37 please click here.

Naomi is a member of our Inquest team and regularly undertakes work in the Coroner’s Court acting for a range of interested persons including the Care Quality Commission. She has also assisted with any issues of disclosure arising during the life of proceedings. She is happy to assist and advise at all stages.

Naomi offers continuity of representation from inquests to civil actions for damages arising post-inquest.

Contact Naomi’s clerk

Madeleine Gray on 0113 202 8603