The pandemic saw the rise of remote attendance in coronial proceedings, both by observers and participators alike, which has continued even long after lockdowns have eased.
On 28 June 2022, section 85A of the Courts Act 2003 and the Remote Observation and Recording (Courts and Tribunals) Regulations 2022 (“the Regulations”) came into effect. The provisions allow remote observation of proceedings in any court, tribunal or body exercising the judicial power of the State, which includes Coroners’ Court.
To help coroner areas apply and understand the new legislation, the Chief Coroner has issued jurisdiction-specific guidance on remote observation in Coroners’ Courts by both observers and participants alike. The overriding message to take away from the Guidance is that it is not an automatic right for observers or participants to attend remotely, and reasoned applications (which may be refused) must be made to the Coroner for permission in this regard.
The key points to note are:
- It is recommended that Coroners refer to and apply the Practice Guidance developed by the Lord Chief Justice and Senior President of Tribunals to help judicial office holders to understand and apply the new law;
- There is no automatic right to observe a hearing remotely. Individuals are permitted to apply for permission, but this will be decided on a case-by-case basis and applications can be refused (in this regard, coroner areas are being encouraged to publish guidance on the application process, and so the process is likely to differ from area to area);
- In considering an application for remote observation, the coroner must refer directly to the new legislation and ensure they apply the test in Regulation 3 (i.e. whether remote attendance is in the interests of justice, there is the capacity and technological capability to enable it, and it would not create an unreasonable administrative burden) and take into account the mandatory considerations in Regulation 4;
- One of the principles underlying the Regulations and Practice Guidance is that what will be in the “interests of justice” is very broad and, in fact, wider than the circumstances of the individual case and holding an effective hearing. It will be acceptable for each coroner area to vary widely in considering remote observation applications because they will each have differing relevant circumstances (specific examples such as the availability of technical equipment and high staff turnover/lack of staff is given in the guidance as a relevant circumstance to be taken into account);
- The Guidance makes it clear to Coroners that a refusal to make a direction for remote attendance is not the same as denying public access to proceedings – individuals seeking remote attendance will be expected to explain why its in the interests of justice for them to attend remotely when they could just attend in person;
- The Guidance confirms there is unlikely to be a need for a Coroner to consult IPs before deciding upon observations, and there is also no need for detailed rulings on decisions regarding remote observation;
- Participants also do not have an automatic right to attend remotely. They will also need to apply for permission and this will be considered on a case-by-case basis and can be refused. Other affected participants should be allowed an opportunity to make representations before the coroner makes his decision in this regard;
- Remote attendance is only permitted where it would improve the quality of the evidence given, or allow the inquest to proceed more expediently – and in making their decision, Coroners must balance the interests of justice and the interests of all those attending the proceedings;
- The Chief Coroner’s personal view is that it is often beneficial for participants to attend hearings in person and it is clear from the Guidance that remote attendance should not normally be permitted just purely because the participant would prefer it;
- The Guidance suggests that, whilst the law currently orders that the coroner and any jury must be physically present in the court room, rules are going be made in due course to enable Coroners and juries to attend hearings remotely (albeit it is unlikely to be in the interests of justice unless there are exceptional circumstances);
- The Guidance makes it clear that sufficient care needs to be taken to preserve the dignity of the court – area coroners have been invited to consider providing guidance to remote participants in this regard;
- Coroners are reminded that the usual warnings are to be given, ideally when sending out live links and reiterated orally in the hearing.
For more information on the jurisdiction-specific guidance, please get in touch with our healthcare team.