Pen portraits and a plea to the Chief Coroner
Human rights lawyer Merry Varney asks the Chief Coroner to allow the voices of families and friends to be heard as part of the inquest process
Posted on 06 June 2018
Owen Bowcott wrote last week in the Guardian about the commemoration sessions held as part of the Grenfell Tower Inquiry and the call by INQUEST for pen portraits of the Deceased to form part of all Inquests and Inquiries.
As Deb Coles, Director of INQUEST said, the contributions from families and friends, tributes to their loved ones, have “brought their voices into the inquiry”.
The importance of hearing these voices cannot be underestimated. As Owen wrote, the hearings have had a “cathartic effect” and have helped to “break down barriers of suspicion”.
I would add that for Inquests held with a jury, who will hear a large amount of evidence in relation to a death, these pen portraits of a life help to focus the minds of the jurors at the start of the process, on the kinds of questions or issues they will be asked to deliberate on at the end of hearing all the evidence.
Given the battles bereaved families often go through, starting an Inquest in a manner which humanises the process - spending a proportionate time hearing, seeing or reading a pen portrait, surely should be compulsory when a request is made to do so.
It puts the family at heart of the Inquest. This was, after all, described by the retired Chief Coroner Peter Thornton as the “whole purpose” behind the 2013 Guidance he published aimed at reducing the “variable” service delivered by Coroners across the country.
In my experience of representing bereaved families across the country whose loved ones have died while dependent on care from a public body, that lottery within the Coronial service still exists and opening an Inquest with a glimmer of hope that part of it will consider the life lived as well as how they died, having a cathartic effect for bereaved families, would be a huge step in the right direction.
According to the article in last week’s Guardian, the current Chief Coroner supports pen portraits being allowed in Inquests but he has not published any Guidance, which he has the statutory power to do.
This leaves bereaved families who are refused a platform to speak about their loved one, or did not know to ask and was not advised of the possibility, in a very difficult position.
There is no right of appeal from a Coroner’s decision. There was going to be but the relevant law was repealed before being brought into force.
A bereaved family can make a complaint about a Coroner’s conduct all the way from the Judicial Conduct Investigation Office to the Judicial Standards Ombudsman, but this complaint process cannot consider Coroner’s judicial decisions and refusing a pen portrait, could be considered a judicial decision.
Even if it was not, without any Guidance to refer to in support, the prospect of a successful complaint is in my view unlikely.
So, the only option available is judicial review - an application to the High Court and the usual and an advisable first step would be seeking legal advice.
Unless financially eligible for legal aid - and it is worth remembering that as Owen wrote about in March this year, a family living below the poverty line is not necessarily going to meet the means criteria - that legal advice is likely to incur a financial cost for the bereaved family.
Even if that initial advice is provided free of charge or at reduced fees, which many lawyers do, pursuing a judicial review involves a lot of work; there are Court fees to pay and there may be a considerable financial risk as not all Coroners will agree not to seek their legal costs from a bereaved family if their judicial review is unsuccessful.
Even if the bereaved family are advised that the Coroner’s refusal of their request for a pen portrait is arguably unlawful (which is made harder by the lack of published Guidance mandating their allowance) and a judicial review has good (60%+ chance of success) prospects of success, a big if, how many can take on the financial burden and additional stress of pursuing a judicial review? Not forgetting the family is already bereaved.
This doesn’t even factor in the risk of delay, while knowing memories are fading and the “I don’t recall” response from witnesses becoming ever more likely, or on the flip side, the Inquest going ahead anyway in the meantime rendering the argument academic.
Andy & Amanda McCulloch describe their battle with Acting Senior Coroner Pears as nearly destroying them.
Their threat of judicial review has now successfully led to Acting Senior Coroner Pears recusing himself from their daughter’s Inquest but the cost has been high - financially and emotionally, and almost two years since Colette’s death they are now waiting to hear who will take conduct and progress their daughter’s Inquest.
Judicial review is really not an option for many. Personally, and through clients, I know of many bereaved families who cannot stomach fighting with a Coroner and rather than endure feeling like a bystander during the investigation and Inquest into their loved one's death, entirely disengage with the Inquest process.
As Deb Coles said, the commemoration hearings “set the tone” of what needs to be “achieve[d] in terms of delivering truth, justice and accountability.” The opposite is also true - a refusal of a pen portrait sets the tone for an Inquest likely to be ill equipped to deliver truth and accountability and with no affordable/accessible route to challenge that refusal, the experience is the complete opposite of cathartic for the bereaved family. For the general public this also means the opportunity to perhaps protect us from future risks that could have been identified in a proper Inquest will be lost.
At least if there was Chief Coroner Guidance on the inclusion of pen portraits this would give bereaved families something official to rely on to support their request to give a tribute to their dead loved one.
Information could be included in the Ministry of Justice’s Guide to Coroner Services and this could be a real opportunity to improve the Inquest process for bereaved families and ensure their voices are heard in Coroners Courts across the country. It is a small step with potential for a huge impact, and if you are in support anyway….. please Chief Coroner, issue some Guidance.
The Inquest image courtesy of Dr Sara Ryan