Introduction

In this final substantive chapter I examine the ways in which my interviewees perceive the family's engagement with the construction of the public space of the inquest hearing. My contention is that the reforms of the inquest have produced a hearing which can be substantively more or less public in terms of what is covered and who is there to listen, and the family play a central role in determining how it is shaped. To explore this issue, I examine the different spaces in which inquests take place, before exploring order, disorder and the role of lawyers. I then move to discuss the ways in which the hearing can be more or less public in more detail, before concluding with a focus on the emphasis of meaningfulness in both the hearing and conclusions of the inquest. This conclusion (formerly verdict) receives a great deal of attention, particularly in doctrinal law, in relation to the appropriate legal tests for particular conclusions, as well as concerns with inconsistencies between areas in relation to conclusions (Mclean 2015a, 2015b, 2017; Harris and Walker 2019). Formal outcomes are undoubtedly important, including for the family, but as Davis et al note, ‘arriving at a correct verdict is a small part of what goes on in the inquest’ (Davis et al 2002, 60). Drawing on Scott Bray's insight that ‘ “facts” found by Coroners are not unproblematic findings’ (2010, 574) and can only be understood in their wider social and legal context, my endeavour here is to reflect on that wider context. In particular, I explore questions of how those facts emerge from a process which concludes in a public hearing, and how family fit into that.

A public space

One of the aims of the 2009/ 2013 reforms was to have fewer inquests, with the ability to discontinue an investigation before the inquest where, for example, the death was a result of natural causes and there were no other concerns (CJA 2009, s 4). Where an inquest was to be held, the Chief Coroner has emphasized that the ‘more modern look’ of the inquest system is based on fewer delays and more hearings being held in public (see Chief Coroner 2013– 14, 11).

Introduction

The key conceptual link between the theoretical resources in which I have drawn in my analysis – jurisdiction, systemic decision making, kinship and family – is the ways in which they are continually constituted and reconstituted through practices. I have argued that the inquest can be conceptualized through these practices as a process of accountability – of communicating the circumstances of death, where the circumstances of death are revealed and explained, and justifications are explored. However, the current system can be characterized as containing two competing perspectives: an understanding of the role of the Coroner and inquest, and the family within that process, as limited, serving a neutral expert accounting for death, and an emergent framing in which the participation of those connected to the deceased is conceived as essential to a meaningful accounting. The distinction lies in different representations of the law and different understandings of who participates in the development of that communication, how they participate and what the process produces. Family have to be involved, but this can be understood – as the former Chief Coroner suggested – as part of a system in which they listen to a medico-legal explanation for death or as a process in which the bereaved participate in the production of that explanation. In relation to either, it is a critical conceptual development. Where Prior (1989) argues that the inquest individualizes death, I suggest that the current system is represented as a forum which re-affirms, refashions and reveals interconnectedness, acknowledging the ways in which we are ‘socially constituted bodies, attached to others [and] at risk of losing those attachments’ (Butler 2006, 20). In this context, who is permitted to enter and is recognized as grieving is of vital importance (McIntosh 2016).

This role for the bereaved reveals a potential recalibration of the politics of death, in a shift in which kinship, connection and context is represented and understood as central to state responses to death. It is not inevitable, and the role for family can be sharply contested, in a system which, as evidence has shown,1 can shut the bereaved out and focus solely on technocratic forms of accountability (see, for example, Aitken 2021) or exclude kin through a narrow interpretation of ‘family’.

Introduction

This chapter explores decisions taken (or not taken) in the pre-hearing investigation phase of an inquest. It focuses on the ability of kin to participate in that investigation and, in particular, on two apparently mundane procedural questions which are vital in understanding the contemporary pre-hearing context: the interlinked questions of who is entitled to be an interested person; and what documents they are entitled to receive in the process known as disclosure.

Interested persons are those people entitled to be involved in the investigation, with rights which include the right to be notified about developments in the proceedings, the right to make submissions about the process (including the scope of the inquest – in other words, what issues it will cover), the right to receive disclosure of documents and the right to ask questions of witnesses in any hearings.

The chapter is divided into two substantive parts. In relation to decisions about interested persons, I explore firstly the need for someone to represent a connection to the deceased and the emphasis on implicit decisions about their involvement. I then move on to examine the ways in which, when forced to make a decision, those decisions can be framed as focusing on concerns with kinship and connection (and therefore are focused on seeking to combine forms of accountability), or with formal family ties, but will also involve considerations of purpose and assertions about a natural hierarchy of family.

In the second part, I focus on disclosure and the entitlement to receive documentary evidence as part of the investigation. In particular, I focus on the ways in which decisions about disclosure can again be analysed as based on an understanding of combining accountabilities or a concern to privilege technocratic forms of accountability.

This chapter further emphasizes the importance of not focusing solely on the hearing and its outcome, but also examining systemic decision making in the time before the hearing, and the impact of family participation in those investigations. For example, in one account related to me, an officer described how they had acted on their own initiative without consulting the Coroner in relation to a natural causes death which involved a previous period in detention, seeking additional reports in response to concerns and questions raised by the family.

Introduction

In Chapter 2, I suggested that the participation of the community (including but not limited to the declaration of deodand) and the notification which called the community to take part were important characteristics of the historical inquest jurisdiction. These two elements – notification and enabling participation – can be understood as legal devices and are practices which have re-emerged in the context of the role of the family in the contemporary inquest. In this chapter, I argue that they are constitutive elements of the contemporary jurisdiction and can provide a basis for a conceptual understanding of an inquest law in which the bereaved are at the centre.

To explore this issue, this chapter examines accountability and authority in the shifts from the historical, to the modern, to the contemporary inquest. These are not definitive, clear-cut periods of time, but are instead ways to characterize the contested, contingent and changing nature of the inquest over time.

The chapter is divided into five parts. It opens by focusing on the modern inquest and the shifts which defined it as a modern system, before moving to explore the changes which characterize the contemporary jurisdiction. In this analysis, I return to examine the ways in which Morgan's (2006) discussion of technocratic and community forms of accountability assist in understanding the changes in the inquest. Focusing on the family, I turn to examine the contemporary jurisdiction in more detail, with particular analysis of notification, the expansion of the category of family and the participation of family – in particular, the basis for family being involved and able to ask questions during the inquest.

The modern inquest: important, limited and factual

The traditional account of authority in the modern inquest focuses on the legal authority and wide discretion of the Coroner. This approach emphasizes the legislation, precedent, guidance and best practice which underpins (and, to some extent, directs and constrains) the work of the Coroner, who acts to answer the four questions of who the person was, and how, where and when they died (see, for example, Thurston 1976; Dorries 2014; Matthews 2020). In the classic statement of the law, in 1994, the then Master of the Rolls Thomas Bingham declared that ‘an inquest is a fact-finding inquiry conducted by a Coroner, with or without a jury, to establish answers to four important but limited factual questions’.

Introduction

The inquest is characterized by paradox: a legal forum which is simultaneously high profile and unfamiliar, extraordinary and routine. It is a jurisdiction which often appears anachronistic and peripheral to other systems of justice and governance. At the same time, the human stories which the inquest hearing tells, of accident and violence, individual mistake and structural misdeed, fascinate the media, leading bulletins, filling front pages and provoking heated public debate. It is a court hearing but not a trial, presented as a non-adversarial inquiry into facts, in which the bereaved family are at the centre (Thornton 2012a). However, it is also a setting experienced by many as a combative, contested space, obscurely governed by technical legal provisions.

Cultural and anthropological scholarship would suggest these contradictions emerge from our paradoxical relationships with death itself; irresistible and abhorrent, we look at and look away from death, we silence pain and need to hear it. As with the death it is responsible for explaining, the inquest similarly compels and repels, while the grief of those who remain can provoke complex and conflicting public responses.

This all means that inquests are engaging, but this engagement itself is inherently problematic. Sudden unexpected death is dramatic, containing the potential to grab attention and reveal deeper common truths. It also carries risks associated with exploitation and well-meaning but damaging interventions on behalf of those bereaved by death. This includes emphasis on the therapeutic possibilities in a process ‘framed as a precondition to achieving closure’ (Fincham et al 2011, 65), positing grief as a psychological process to work through. It is a perspective characterized by Butler as invoking ‘the Protestant ethic when it comes to loss’ (Butler 2006, 21), which approaches bereavement as an injury to be healed rather than as a feature of precariously held life.

It is a system which scholarship has represented as attempting to give death ‘a more predictable veneer’ (Howarth 2007, 160), transforming death into an inescapable incident, meaning it ‘becomes possible to repair and reaffirm culturally dominant assumptions about the “facts of life” ‘ (Langer 2010, 86). Troublingly, however, this framing can hide the ways in which structures of injustice are frequently implicated in death (Razack 2011b and 2015), and is therefore an approach, emphasizing inevitability and tragedy, which risks amplifying that injustice.

Introduction

The body implies mortality, vulnerability, agency: the skin and the flesh expose us to the gaze of others, but also to touch, and to violence, and bodies put us at risk of becoming the agency and instrument of all these as well. Although we struggle for rights over our own bodies, the very bodies for which we struggle are not quite ever only our own. The body has invariably public dimensions. (Butler 2006, 26)

Those public dimensions and struggles over rights do not end when life ends. After a sudden death, the body is both the remains of the person who was and vital evidence for the investigation into how they died. What should be done with and to the body is an early and potentially very contentious issue in an inquest, and the way in which the body is treated can be the cause of significant distress for bereaved kin. Specific decisions will often need to be made about the need for a post-mortem and what form this should take, whether further tests are required which involve removing samples from the body, and who the body should be released to when investigations are completed. Such decisions may not be straightforward in many cases and can be a particular source of contestation where the perceived requirements of the investigation clash with religious or cultural responses to the body.

This chapter focuses on decisions around the body and, in particular, on the ways in which the inquest system understands the relationship of the family and the body of the deceased. Central in that are competing framings of dignity, and the coverage here begins by exploring two competing ways to understand dignity in this context. This discussion initially examines the exhumation of bodies, but then turns to apply these two approaches to dignity to the inquest in order to suggest that approaches to dignity can be either framed through a concern with formality, office and civility or through a concern with morality and conscience. This latter understanding emphasises paying attention to care, humanity and kinship, with attention to dignity.

Introduction

History – and in particular a sense of the inquest as a venerable feature of English justice – plays a vital role in the contemporary jurisdiction. This history buttresses – and, I argue, can potentially disrupt – a system often represented as brought up to date for modern needs, focused on fact finding, aided by expert medical knowledge and tweaked to tie in human rights concerns: flexible, pragmatic and local. In this chapter, I examine that history, focusing in particular on the relations of the community, the jury, the Coroner and the family in the historical jurisdiction. My suggestion is that the role of the community, and the authority of the jury in particular, made possible a form of community accountability for death. Furthermore, it was the notification and the participation of that community which established the law of the inquest. By contrast, family and kinship is harder to find in the historical record. Where it does become clear is in the device of the deodand and, in particular, in the moment of abolition of the deodand.

For centuries in England and Wales, at the end of in an inquest into a death, the jury could declare an animal or inanimate object to be responsible for the death. Such an object was named deodand, a gift to God, and was forfeit to the sovereign, but could be used as a means of compensating bereaved kin. The deodand was abolished in 1846 and was replaced with the first Fatal Accidents Act, allowing bereaved family members to claim compensation following death.

That moment of abolition simultaneously illustrates a slowly diminishing role of the community and jury, and the rising importance of the family. This means that analysis of the deodand enables reflections on the ways in which the construction of accountability shifted, and the way in which family began to emerge as a key part of the inquest process.

This chapter opens with analysis of some of the unique aspects of the contemporary jurisdiction, including the role of history, before moving to examine the historical inquest and, in particular, to reflect on accountability and authority in that historical jurisdiction.

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Introduction

First contact with family is a vital part of analysing understandings of both family and the contemporary inquest. In particular, it is essential in exploring the role that family are understood to play in establishing the system as a process of community accountability, in which tacit, meaningful connection to the deceased can enable the possibility of a meaningful explanation for death. It is also a critical moment for beginning to analyse the ways in which kinship can be constructed in the process of the inquest in the interplay between indeterminate law, official understanding and family practices.

The chapter is divided into five parts. It opens by examining the legal category of ‘next of kin’ and the importance of focusing on practices and processes, before moving to provide details on the vignettes I used to explore the way in which the decision makers understood the role of family. Following this, I elaborate on the ways in which the first contact with next of kin establishes kinship, use insights from scholarship on decision making to help to understand this process, and close with an explanation of my use of ‘framing’ as a way of understanding how decisions about family in the inquest system are made. Two frames are identified: one which corresponds with the modern understanding of accountability in the inquest as technocratic, and one which can be seen to emerge from a contemporary approach to the inquest, in which family participation is linked to the production of community accountability.

Making decisions, indeterminacy, and practices of family and kin

The opening obligation to the family is set out in Rule 6 of the Coroners (Investigations) Regulations 2013 SI 1629/ 2013:

‘Next of kin’ is not used in the Coroners and Justice Act 2009 and first appeared in the 2013 Regulations. As Jervis on Coroners notes: ‘The phrase “next of kin” has no current technical meaning in English law and it is surprising that it is not defined for the purposes of the Coroner legislation’ (Matthews 2020, 198).