In wide-ranging interview, soon-to-retire Peter Thornton QC says bereaved families are entitled to ‘equality of arms’
Peter Thornton QC, the outgoing chief coroner of England and Wales. Photograph: Christian Sinibaldi for the Guardian
Legal aid should be provided for families at inquests in which the government pays for lawyers to represent police officers or other state employees, the chief coroner has recommended.
In an interview with the Guardian before the release of his annual report and his retirement, Peter Thornton QC said: “There are cases where legal aid should, if possible, be made available for families, particularly where one or more organs of the state are represented.”
As the first holder of the post of chief coroner of England and Wales, Thornton has updated a service widely thought to be in need of modernisation and greater consistency. He took up the post in 2012 and steps down in October.
In the aftermath of the reopened Hillsborough inquest and with the resumption of the inquest into the Birmingham pub bombings, the question of whether relatives of victims need legal support to help them discover the truth has become an urgent issue.
This week both Conservative and Labour MPs in the Midlands backed requests to provide legal assistance to relatives of the 21 people who died when the IRA bombed the Tavern in the Town and the Mulberry Bush pubs in Birmingham in November 1974. In recent years the Ministry of Justice has severely restricted access to legal aid as part of its austerity programme.
Cases involving a prison death or a fatality in police custody often involve several officers with government-paid barristers appearing on their behalf. When confronting such high-powered representation, Thornton believes, families should be granted exceptional funding for legal aid.
“It’s partly a question of equality of arms and also helps the coroner who might otherwise be bending over backwards to help the family and might give the appearance of going too far,” he said.
“I have recommended in my annual report … that the lord chancellor should consider amending her exceptional funding guidance so as to provide … legal representation for the family where the state has agreed to provide representation for one or more people.”
Relying on voluntary work was not sufficient. “There’s always been a very good tradition of pro-bono lawyer work,” Thornton acknowledged. “But that’s not always the right way forward. I have also given general advice to coroners when they are [contacted] by a family to support an application for funding.”
Thornton, who leads a team of 380 coroners and 595 coroners’ officers, also said a critical shortage of pathologists was a “disaster looming”.
Pathologists are employed by the NHS but perform postmortem examinations as freelancers, for the slender sum of £96.80 per body. Many are reluctant to take on the work.
“It’s not part of their jobs,” Thornton said. “They often come in early in the morning to the local mortuary. The majority of work will be concluded by lunchtime. There’s no supervision or oversight … which is remarkable.
“No government department will take responsibility for them. The Department of Health says it’s not for them; the Home Office [only] deals with forensic pathologists who are employed by the police.”
He added: “There are 463 consultant pathologists. More than a quarter [when surveyed] said they intended to give up coroners work. Most cited poor remuneration for doing so and the £96.80 fee which has been standard for the past 10 years.
“The really serious side of this is there can be delays in releasing the body because there’s no pathologist available. There can be delays commencing the inquest because … it takes longer to get reports.”
At an international conference, Thornton found most of his foreign counterparts were releasing bodies after 24 hours. In England and Wales the target is three days, “and that’s not being achieved in some parts of the country”, he said.
Without some national oversight and without any commitment by the NHS, the coroners service “will get worse and that will lead to families having greater distress because they are unable to have the body released quickly”, Thornton said. “Learning from death is learning for life. I would like the NHS to adopt more of that attitude. In pathologists’ training, autopsies are optional now.”
Last year there were about 530,000 deaths reported by doctors, around 45% of which were reported to coroners. Thornton said the procedure was “slightly chaotic” and he is drafting advice to doctors to make their referrals more consistent. Not all result in full inquests, of which there were 32,000 in 2015.
Suicide remains a controversial issue. It has to be proved to the criminal standard of beyond reasonable doubt. “I had some discussions with ministers from different departments about whether it should be reduced to the civil standard of proof, the balance of probabilities,” Thornton recalled. “The ministers couldn’t agree. I discussed with it coroners. They were split 50/50.”
One of Thornton’s other recommendations relates to deaths at sea. At present the law states that those which occur near land, for example swimming accidents, can be investigated by the local coroner. But those far out, for instance deep sea fishing accidents, cannot. “I would like them to be held,” Thornton said. “Deaths at sea are never investigated.”
One of the new powers that has raised the profile of coroners is publication of regulation 28 notices aimed at preventing future deaths. Thornton recalled one good example, following inquests into military deaths in Afghanistan, where it worked well.
“I was at Warminster [where the army showed me] a piece of equipment which detects mines on the road,” he said. “They explained that they had changed it to [a new] piece of equipment as a result of a coroner’s report. That’s good work.”
Asked about prisoners taking their own lives at Woodhill prison, where five inmates died in 2015 and for which there have been inquests, Thornton replied: “The fact that there are repeat deaths in one place will be considered by those who are responsible for it. It’s our job to draw attention, it’s for others to take action.”
Deborah Coles, director of the organisation Inquest, which supports relatives at coroners’ courts, praised Thornton’s efforts. “He has tried to remind people that families should be at the heart of the process and seen that it’s at its worst where there’s an imbalance in the resources available,” she said.
“He has tried to make the coroners service more professional by providing training for everyone, in particular coroners’ officers. We have to get away from the Ministry of Justice claim that inquests are inquisitorial processes and families can represent themselves.”
Coroners’ lives are not easy. They deal with death and grieving families every day. “That kind of work is very stressful,” Thornton said. “I don’t think sufficient thought has been given to them in that role.”
Sometimes the law could be an obstacle, he acknowledged. He would like to see the high court’s powers reformed so that it can record and amend records of evidence.
For example, the bones of a man in his 20s were found on a beach in north-west England. A decade later, advances in DNA matched them to someone who had left Dublin.
“That required an application to the high court to quash the first inquest, to order a second inquest, just for a record to be changed,” Thornton said. “The family in Dublin were really grateful to be able to bury their son at last. Until then, he had just been a missing person.”