Coroner entitled to sit with expert assessor

LAW REPORT 5 July 1996

Regina v HM Coroner for Surrey, ex parte Wright; Queen's Bench Division (Mr Justice Tucker) 14 June 1996

A coroner was entitled to invite an expert of some kind to sit with him at an inquest if he considered it necessary having regard to the technical nature of the evidence to be considered. The assessor might ask questions of other witnesses, but he should not give evidence as a witness himself.

Mr Justice Tucker refused an application by Irene Wright for judicial review against the Coroner for Surrey, who on 13 October 1994 concluded that the applicant's son, Vassell Wright, had died by accident.

The deceased died at Ashford General Hospital after being given a general anaesthetic for minor surgery to remove his wisdom teeth. He never regain- ed consciousness. The cause of death was cerebral necrosis due to cerebral anoxia.

The applicant complained, inter alia, that the coroner sat with an assessor, Dr Ziderman, a consultant anaesthetist, as an advisor on anaesthetic and resuscitation procedures, and invited him to ask questions of witnesses and to give evidence and then to assist him in making his decision, contrary to the rules of natural justice.

Raymond Croxon QC and Delphine Breese-Laughran (JR Jones, Ealing) for the applicant; Ian Burnett (Surrey County Council) for the coroner.

Mr Justice Tucker said that there was no express provision in the Coroners Act 1988 for the coroner to sit with an assessor. It was well recognised that High Court judges from time to time sat with assessors, pursuant to section 70 of the Supreme Court Act 1981. Section 63 of the County Courts Act 1984 enabled a judge in a county court to summon to his assistance one or more persons to sit with him as assessors. But in the absence of any express provision in the Coroner's Act, did a coroner have a general power to sit with an assessor?

The coroner in his affidavit said it was a relatively common practice in difficult technical cases. He had done so himself on perhaps a dozen occasions. An inquest was an inquisitional proceeding without parties, and the coroner could not rely on the attendance of lawyers to ask searching questions of witnesses.

Mr Burnett's researches showed that as long ago as 1876 coroners were sitting with assessors. He cited the case of R v Carter, 34 LT 849, concerning an inquest in which an assessor clearly took part. Both the textbooks on this subject, Thurston's Coronership (3rd edn, para 16.16) and Jarvis on Coroners (11th edn, para 12.17), recognised the practice.

In his Lordship's judgment, what was the established practice at least 120 years ago remained so today, and it was entirely possible for a coroner to call for the assistance of an assessor to sit with him if he considered it necessary having regard to the technical nature of the evidence which might have to be considered. The present case fell into that category and the coroner was justified in sitting with an assessor.

But what role should the assessor play in the proceedings? Was it wrong to allow him to examine witnesses and to give evidence himself?

Rule 20(2)(b) of the Coroners' Rules 1984 gave the coroner a wide discretion to allow anyone to question witnesses. His Lordship doubted whether the rule was framed with assessors in mind. Nevertheless, it was wide enough to include an assessor and it would unnecessarily curtail his functions, and hence the value of his assistance to the coroner, if he were prevented from asking any relevant questions of a witness giving technical evidence, provided this was done under the coroner's control and was restricted to matters within the assessor's special experience. In his Lordship's judgment there could be no objection to the assessor asking the questions which he had asked in the present case.

However, the role of the assessor should not extend to his giving expert evidence. There was a danger that it might appear, whether justifiably or not, that the evidence of such a witness might attract the special confidence of the coroner, and might carry greater weight than would otherwise be the case. It was better that the roles of assessor and expert witness should be kept apart.

However well-intentioned, the coroner fell into error in allowing Dr Zideman to fulfil both these functions. But as his Lordship was not persuaded that it would have made any material difference to the outcome, it was neither necessary nor desirable to order a fresh inquest.

Paul Magrath, Barrister