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Coroners and their Courts




1. INTRODUCTION


In the nineteenth century the coroner’s inquest came much more often into the public eye, and was the site for a range of conflicts over its purpose and effectiveness. These led to regular proposals for radical changes, sometimes extending to its complete abolition.1


Radical reformers extolled the Scottish system, in which the leading role was taken by the procurator–fiscal, and this ‘secret system’, which appealed to some doctors, had no real place for the coroner.2Ideas were floated for a body of ‘public certifiers’ who would scrutinize doctors’ death certificates and pass only the suspicious cases on to the coroner,3 or for ‘medical examiners’ who would carry out the preliminary investigation, replacing the view of the body by the coroner and his jurymen.4Traditionalists like Joshua Toulmin-Smith and Edward Herford vigorously championed the antiquity and democratic nature of the inquest, but they seemed to be fighting a losing battle.5


The 1870s was a crucial decade, with a series of inquiries and bills against a backdrop of sensational inquests which threw the failings of the institution into high relief.6 Ominously, the Judicature Commissioners in 1873 were only prepared to recommend that ‘the system of coroners’ inquests may for the present be (p.935) allowed to remain’,7 and a Commons select committee in 1879 sent for only two witnesses, both to expound the workings of the Scottish system.8


And yet the coroner and the inquest survived substantially intact, albeit with important changes. Despite Herschell’s urgings, the 1887 consolidation Act was not a prelude to substantive reform and it perpetuated common law words and phrases which had proved notoriously difficult to interpret. The Home Office and the Local Government Board (succeeded by the Ministry of Health) showed little disposition to co-operate, and when the former set up a departmental committee in 1908 its recommendations were mired in politics and professional rivalries until the war provided a perfect excuse for continuing inaction.9 By then the Law Times felt that inquests had lost much of their importance, relapsing into a backwater of the legal system.10



2. THE OFFICE OF CORONER



Types and Distribution


Apart from those exotic rarities the King’s coroner, the coroner of the royal household,11 and the Admiralty coroner,12 and those High Court judges who were coroners ex officio,13 coroners were of three sorts. The Municipal Corporations Act 1835 (section 62) obliged each borough with its own quarter sessions to appoint a coroner. Most counties had from two to a dozen coroners, each based in a district,14 but when county justices created similar petty sessional divisions they seldom matched them to the coroners’ divisions.15 A more serious source of confusion was the existence of ‘islands in the jurisdiction16 of county coroners under coroners (p.936) appointed by the Duchy of Lancaster, Oxford University, and other franchisees,17 the latter having sometimes to fight off attempts by their county rivals to encroach upon their territory.18 Even when there was no conflict, the untidiness of overlapping jurisdictions was confusing and inconvenient; Huntingdon was so fully covered by franchises that it had no county coroner at all, while neighbouring Norfolk was pockmarked with them, some covering a tiny area.19


The distribution of coroners bore no relation to population. Coroners numbered well over 300,20 yet eight coroners performed 27 per cent of all inquests in England in 1860, 21 per cent in 1912.21 A select committee of 1879 boldly proposed to substitute a much smaller number who would double as rural stipendiary magistrates,22 but the changes actually made were much less drastic. The county divisions were put on a statutory footing in 1844, with a procedure for changes in the districts,23 while under the Local Government Act 1888 boroughs with under 10,000 inhabitants lost their coroner.24 The franchises remained intact, though criticized by an inquiry of 1910 as ‘inconvenient and anomalous’25and only vanished under the long delayed overhaul of coroners’ law in 1926.26



Qualifications


The only formal qualification for the office of county coroner was that he must ‘hold land in fee sufficient in the county whereof he may answer to all manner of people’.27 This was incorporated in the consolidation Act of 1887 notwithstanding (p.937) its obscurity and complete practical inutility, the more glaring since a borough coroner had only to be ‘a fit person’ and there was no qualification at all for most franchise coroners.28


The lack of any need for a professional qualification occasioned criticism. Most eighteenth-century coroners were attorneys29 and Blackstone had bewailed the social decline of the office.30 However, improved possibilities of remuneration attracted professional men, while the rising social status of solicitors and doctors improved the reputation of the coronership. There was strenuous rivalry between these two professions, each claiming that its own qualifications were peculiarly apt for the post.31


Thomas Wakley32 initiated a vigorous campaign for medical coroners.33 Wakley was successful up to a point. When he died in 1862 there were 59 doctor-coroners and it had become accepted that the coroner should be either medically or legally qualified.34 Nevertheless, the lawyers (particularly the solicitors) more than held their own. From a peak of 14 per cent in counties and 20 per cent in boroughs in the 1880s the proportion of doctor-coroners gently declined.35 Though the 1879 Select Committee’s recommendation that only lawyers should be coroners was not implemented, the best the doctors could hope for was that any requisite professional qualification should preserve their position, as the Chalmers Committee accepted.36



(p.938) Appointment


County coroners were elected by the freeholders.37 Contested elections, relatively unusual in the eighteenth century, were becoming more frequent,38 sometimes as a way to promote particular causes or, as in the northern Staffordshire election in 1826, ‘a contest between two political parties who wanted to try their strength’.39 By the 1840s contests occurred more often than not,40 and since the constituency was often very large, contests could be expensive and irregularities extensive.41 The Queen’s Bench occasionally set aside enough votes to make an election void,42 but in Re Diplock it adopted a very unambitious role in scrutinizing the sheriff’s actions.43 In law the poll was restricted to ten days,44 but subsequent reductions first to two and then to one day cut the expenses of polling, making it unlikely that the 6869 votes recorded over eight days in Gloucestershire in 1831 would be repeated;45 even so, Lancashire contests attracted more than 2000.46 Inevitably there was corruption, and the cost to candidates could be alarming, perhaps £10,000 to £12,000.47 The most famous contests, those involving Thomas Wakley and Edwin Lankester in Middlesex, were especially costly: Wakley was £7000 out of pocket after losing the 1830 east Middlesex election and Lankester’s success in 1862 cost £3000 and permanently crippled him financially.48 Experienced election agents were called into play and solicitors’ experience in electoral business gave them a big advantage over their medical rivals.49


Wakely liked to call the coroner ‘the people’s judge’ because of his broad electoral basis, but by 1869 many shared the Home Secretary’s view that besides being (p.939) ‘cumbrous and expensive’, election was ‘unsuited to the character of the office’.50 Disagreements over patronage and lack of urgency delayed the change so long that it eventually came as part of the reform of county government in 1888.51 With little debate and certainly without any popular protest the coroner was henceforth to be appointed by an elected county council.52


This change aligned the position with the boroughs, where the coroner was already chosen by the corporation.53 To judge from Birmingham and the Lancashire boroughs the process was largely political, though local law societies in Liverpool and Manchester were powerful enough to ensure that a solicitor would be chosen.54



Tenure


Most coroners were appointed or elected for life, but some borough coroners were chosen for only a year and were vulnerable to changes in the political complexion of the borough; though after criticism of the ruthless purge by the Birmingham radicals in 1839, it became rare for coroners to be displaced.55


Some felt it an oddity that the Lord Chancellor, rather than the Lord Chief Justice, had acquired the power to remove a coroner who misconducted himself in office or had become incapable of performing its duties,56 and both Eldon and his successors were vague in explaining its origin.57 A statute of 1751 enabled the King’s Bench to remove one convicted of ‘extortion or wilful neglect of his duty or misdemeanour in his office’,58 and the Coroners Act 1860 placed the Lord Chancellor’s powers of removal over county coroners for ‘inability or misbehaviour’ on a statutory footing.59 These two provisions, with minor verbal changes, were infelicitously juxtaposed in the consolidating Act of 1887.60


(p.940) The Lord Chancellor’s role was a delicate one. He had to act judicially upon evidence and must not prejudge the issue, yet it was to his office (sometimes via the Home Office) that complaints came. He could take no disciplinary action unless someone was prepared to lodge a complaint, which rendered it ‘peculiarly difficult for him to deal with any complaint where it appears that the complaint, if investigated or substantiated, would or might lead to the removal of the coroner from office’.61Where no one was prepared to make the formal complaint which would warrant judicial proceedings, the most the Chancellor could do was to invite the coroner’s comments and, if appropriate, rebuke him.62 ‘Misbehaviour’ in this office was very difficult to define. It was straightforward enough to dismiss a coroner who was mentally or physically disabled, or who was bankrupt or fled abroad,63 butR v. Hull showed the difficulty arising from complaints that the coroner was not holding inquests when he should,64 or indeed was holding them unnecessarily.65 Where an undesirable practice had gained some currency a Home Office circular might be issued, but these had no authority. With little incentive to pleasing the authorities and very little to fear from displeasing them,66 coroners were essentially independent.67



Remuneration


On one view the middle of the nineteenth century witnessed a ‘vicious campaign of obstructing the medico-legal investigation of sudden deaths’ by justices at quarter sessions, ‘carried on in the face of incontrovertible evidence that they were facilitating and inviting the concealment of murder’.68 The justices received encouragement from superior court judgments which supported their narrow construction of the duty to hold an inquest and made it nearly impossible to challenge magistrates’ decisions on the propriety of coroners’ expenses.69


(p.941) The expense of inquests lay at the root of these disputes. Many quarter sessions gave a higher priority to limiting the rate burden than to uncovering secret homicides and avoidable deaths in public institutions, while most justices felt the way coroners were remunerated offered a direct incentive to hold unnecessary inquests. A statute of 1751 entitled the coroner to a fee of 20s per inquest ‘duly held’, plus a travelling allowance of 9s a mile, payments needing to be authorized by quarter sessions.70Towards 1800 the justices began increasingly to question the amounts claimed, encouraged by several unsuccessful challenges to disallowances.71 Behind these disputes was a rapid rise in inquests. Even in rural Wiltshire they doubled in the second half of the eighteenth century, while a single Oxfordshire coroner covered 325 miles for 160 inquests between 1829 and 1832.72 It is hardly surprising that increasing coroners’ expenses inclined justices towards a narrow view of coroners’ duties.73


Subsequent legislation increased the incentive to vigilant economy. When the poor law commissioners ceased to pay incidental inquest expenses from the parish poor rate hasty legislation charged the county rate with all the expenses, including an enhanced payment of 6s 8d to the coroner;74 Wakley also procured a specific witness allowance for medical evidence.75 Faced with a sudden rise in inquests (Middlesex up 43 per cent in a few years, Bristol from 91 in 1836 to 221 in 184076), probably linked to the introduction of registration of deaths in 1836, justices in Middlesex led the way in going beyond disallowing individual cases to passing resolutions detailing what expenses would be met.77 Challenges met with mixed success, and did little to restrain the quarter sessions.78


(p.942) Justices were often unjust in stigmatizing coroners as engaging in ‘a species of petty tyranny’79 and wrong to suspect them of self-interest in ordering unnecessary inquests. A parliamentary inquiry vindicated Wakley from the aspersions of the Middlesex bench80 and a hapless coroner might find himself in trouble if he went too far to please his paymasters.81 But not all coroners were disinterested. Ellenborough had insisted that they sometimes exceeded their powers and in Wiltshire there had been ‘[i]ncreasingly successful peculation [which] may well have been connived at by the justices of the peace’.82


Even so, the justices were felt by both Sir James Graham and the Lord Chief Justice to have become too restrictive83 and The Times attacked the Middlesex and Staffordshire resolutions for their tendency to protect the workhouse and the prison.84 With popular consciousness apprehensive of poisonings it was hardly reassuring that inquests had fallen steeply in Staffordshire, home to that celebrated poisoner William Palmer, and a sharp fall in inquests persuaded the Home Secretary to set up a royal commission.85


The Coroners’ Society had been agitating for salaries to replace fees86 and the same remedy commended itself to the Commission.87 The new Home Secretary, Sir George Cornewall Lewis, had an old-fashioned preference for fees as providing an incentive to zeal and vigour but was overborne by a select committee and in 1860 county coroners became salaried, though at their own wish borough and franchise coroners were excluded from the Act.88


(p.943) Since the salaries were based on the number of inquests held over the past five years and were eligible for review every five years, there was still reason for the justices to scrutinize inquests.89One Lancashire coroner clashed repeatedly with quarter sessions, especially when he held 14 inquests in four days on deaths from a single colliery explosion90 and Lancashire was one of several which took a narrow view of the 1860 Act.91 Elsewhere justices delayed paying expenses, but though Wakley and Lankester were accused of maximizing inquests in pursuit of higher salaries, the change seems gradually to have muted antagonisms.92 Naturally variations in salary were extreme. Wakley had £1800 and his successor Lankester eventually £1770.93 Big cities, such as Liverpool and Birmingham, also paid four-figure sums,94 and their coroners were whole timers, but in rural counties part-timers remained the rule; the four Oxfordshire coroners, for instance, made between £70 and £85 in 1870.95



Assistance


Coroners had to pay for their own assistance. County coroners frequently used deputies (usually their clerk) but in the Lees inquest case Best J. declared that since Ferrand’s clerk, who had opened the inquest, had not been formally appointed deputy he could not conclude it.96 Power to appoint a deputy was conferred upon borough coroners in 1836 and extended to county coroners in 1843.97 In 1887 (counties) and 1892 (boroughs) a deputy was made compulsory,98 to act in the coroner’s indisposition or ‘absence for any lawful or reasonable cause’, a phrase which was often stretched to allow two inquests to be held simultaneously.99


(p.944) No allowance was given for clerical assistance100 and most solicitor-coroners used their own clerks. Doctors were therefore at a disadvantage, as Lankester found to his cost.101 Outdoor assistance, arranging the inquest for example, presented more difficulties. These tasks had usually fallen on the parish constable, who continued to perform the function in many places even after the establishment of a local police force because of its poor relations with the coroner.102 Where it was feasible most coroners did make use of the police,103 but some coroners preferred to use former policemen instead.104



3. INQUESTS



The Scope of the Duty


The extent of the coroner’s duty to hold an inquest became a matter of persistent controversy. Grounded in what was eventually exposed as a fictitious statute105 and deriving largely from the authoritative but historically unreliable Sir Matthew Hale, the duty had been narrowed to cases involving a reasonable suspicion that the deceased had met a violent or unnatural end: a sudden death from unexplained causes was insufficient.106


This narrow view appealed to the justices as guardians of the county rate but frustrated the more ambitious coroners;107 men like Wakley who saw the potential of his office for preventing abuses in institutions for the poor, insane, and criminous;108 ‘sanitarians’ like Baker and Lankester who envisaged it as part of the detective and preventive force against the spread of infectious and contagious (p.945) diseases;109 those alarmed at an apparent epidemic of poisoning and other surreptitious killings of unwanted infants;110 and those, like Dr William Farr, anxious to improve the quality of official statistics.111 With mass migration and industrialization having dislocated the traditional means of assisting accident victims,112 made more numerous through machinery, inquests were a forum in which liability could be brought home to employers and undertakers.113


In 1860 a select committee, concerned at the fall in inquests, recommended a wider definition in words much quoted by coroners: ‘it [is] desirable that an inquest should be held in every case of violent and unnatural death, and also that an inquest should be held in cases of sudden death where the cause of death is unknown, and also where, though the death is apparently natural, reasonable suspicion of criminality exists’.114 but it was 1887 before it was given statutory effect: inquests should now be held:




  1. (1) where the deceased was reasonably suspected of having met a violent or unnatural end;



  2. (2) where the death was sudden and the cause unknown;



  3. (3) where it took place in a prison or ‘in such place or in such circumstances as to require an inquest in pursuance of any Act’.115

From around 1890 the proportion of inquests to total deaths rose from between 5 and 5½ per cent to between 6 and 7 per cent, suggesting that the Act had some effect.116 The London County Council still fretted over inconsistent approaches among its coroners and some insisted on an inquest whenever no death certificate was available, but the Chalmers Committee did not recommend any further change.117



(p.946) Notification


The common law duty of individuals and communities to notify the coroner of sudden deaths had practically ceased to be enforceable, leaving the eighteenth-century coroner reliant on reports from parish officers, who still had a financial incentive, and the general public.118 By degrees the state interested itself in a range of fatal situations, and statutes imposed a reporting duty for, inter alia, deaths in asylums, factories, prisons and reformatories, retreats, and ‘baby farms’.119 Two innovations in the late 1830s created the potential for a comprehensive arrangement for notification. However, no attempt was made to integrate the registration of deaths (1836) with inquests. The Act imposed no duty on the doctor providing a death certificate to notify the coroner of potential inquests; that was left to local deputy registrars, and even if they were punctilious, there were gaps in the system which led to deaths going uncertificated.120 The select committee on death certification in 1893 was scathing about the deficiencies of this, as most aspects of certification and registration.121


Doctors were not always co-operative either. They often sought to shield their patients’ families from an inquest in cases of suicide or other embarrassing deaths and, as criticism of the coroner in Sir Charles Lyell’s case showed, respectable opinion mostly sided with the doctor.122 The Coroners’ Society unavailingly claimed there was an enforceable common law duty on a medical practitioner in attendance on the deceased to notify the coroner123 and relations between doctors and coroners worsened when some coroners, responding to public concern, began insisting on holding inquests on all deaths under anaesthetic.124 Then in 1908 the wayward Troutbeck broke an unwritten understanding by starting to hold inquests on deaths during or after surgical operations, provoking a furious response from the surgeons.125


The second event was the creation of local police forces. However, the police were not under the coroner’s authority and in some places his attempts to require reports on all sudden deaths to him were countermanded by the local authority, as (p.947) happened to Wakley and to Herford.126 Even when left to their own discretion the police often reported only violent deaths, and as they became increasingly a detective force rather than a purely preventive one, they naturally tended to conduct a preliminary investigation, however cursory, rather than leaving this to the coroner.


Though there was no prospect of judges reviving the broad common law duty to notify the coroner of sudden deaths, they were obliged to create a new offence of obstructing a coroner in the course of his duties. This transpired because Stephen J.’s ruling that cremation was lawful127 opened the way for murderers, particularly by poison, to destroy the evidence of their crime.128



Post-Mortems


The advance of pathology made the post-mortem examination an increasingly valuable tool in determining cause of death, but it did not fit comfortably into the ideology and practice of inquests. A prior autopsy which produced findings that removed the suspicion of foul play or misadventure made an inquest otiose, yet the common law required that if the coroner ordered an autopsy he must then hold an inquest.129 This sometimes posed a dilemma, since families objected to the publicity and upset attendant upon an inquest, and would blame the coroner if it proved unnecessary.130 Though still opposed by some coroners who feared being pressurized not to hold an inquest,131 the view that the coroner should be able to hold a post-mortem without proceeding to inquest gained ground, but despite a recommendation in the Chalmers Report the obligatory yoking together of post-mortem and inquest persisted until 1926.132


Whether to order a post-mortem was a matter for the coroner,133 and some, particularly medical coroners, enthused about its virtues. Lankester said that a verdict of ‘found dead’ was never acceptable; where there was doubt a post-mortem should be held and ‘when he ordered a post-mortem examination to (p.948) be made it was to be a thorough and not a partial one; all the organs were to be tested, as poison had frequently been found where there was no suspicion of anything of the kind’.134 The sanitarians were naturally keen135 and post-mortems were probably most frequent where they could be carried out free of charge by local hospital doctors.136 This made possible the controversial practice of John Troutbeck, who resorted to a post-mortem in 99.2 per cent of his cases.137


Troutbeck stirred up professional hostility by making use of a single expert pathologist (and worse, a foreigner) to perform his autopsies.138 Specialization had became more common and pathology achieved recognition as a distinct discipline,139 but the 1836 Act did not require any special expertise in the doctor and many practitioners lacked experience.140 Many actively disliked this duty, so that, while the number of autopsies steadily increased,141 the results fell well short of Lankester’s ideal. Outside major towns coroners often had little choice but to use the deceased’s doctor, with obvious drawbacks, and though the specialists pointed to unsatisfactory results in sensational cases such as Harriet Staunton’s, their opponents argued against placing undue reliance on clinical teleology divorced from familiarity with the case history.142


Some coroners felt their control of the inquest threatened by the sort of evidence produced by a post-mortem, which posed the question whether the view of the body continued to serve any useful purpose. It continued to be mandatory143 but was unpopular with some jurymen144 and was often very perfunctory.145 Traditionalists defended its symbolic role in the ‘open’ inquest,146 but even within (p.949) the Coroners’ Society the balance of opinion came to consider it unnecessary for the jury and many felt it should be discretionary even for the coroner.147


In other ways too the increasing resort to post-mortems threatened to change the nature of the inquest. Since it was difficult to perform one in a private home or in the public house where the inquest was to be held, pressure grew to provide special facilities, which did not always please the deceased’s family and diminished the impact of the inquest as a public act.148 Furthermore, though doctors were encouraged to make their findings intelligible, even non-medical coroners struggled to summarize post-mortem findings to the jury,149 while its daunting technicality and imperviousness to lay questioning seemed to give it a peculiar authority. In poisoning cases the regular resort to a handful of experts gave them a particular, and rather dangerous, authority. Thomas Stevenson, called in 24 such cases, became the Home Office’s official analyst and the fame of Sir Bernard Spilsbury spread through reports of sensational murder trials. At least at trial barristers could probe their testimony, but it must have become ever harder to dispute their findings at an inquest.150



The Conduct of the Inquest


The coroner’s court was a peculiar one, ‘a court of law, but it cannot be fitted into any classification of courts…a fact-finding body, incapable of trying any issue civil or criminal’.151 This distinctiveness extended to the venue, which was usually a public house.152 Traditionalists like Toulmin-Smith defended this custom,153 with petty sessions and the new county courts mostly held in town halls and courthouses it seemed anomalous and undesirable.154 Nevertheless change was very slow. The London County Council led the way, but Lancashire inquests of the 1890s were almost invariably in public houses, and even after the Licensing Act 1902 had restricted it to places where there was no alternative, it remained common in rural districts.155


(p.950) This undignified venue contributed to an ‘image problem’ which led coroners to debate whether they should wear robes.156 Nevertheless, the coroner was the judge of a court of record, immune from suit in respect of words or actions within his jurisdiction and in the exercise of it.157 His court was subject to the supervisory jurisdiction of the King’s Bench and anyone affected by the outcome might traverse the inquisition,158 usually by way of certiorari, to have it amended or quashed.159 The superior courts had the common law power to amend defects of form, but not substance,160 and might adopt a highly technical approach; the use of paper rather than parchment sufficed to quash the verdict in one case,161 as did the omission of the word ‘instantly’ in another.162It quashed one verdict on the grounds that the facts did not support the jury’s conclusion163 but not another where the evidence did not do so,164 and in that same case (one where the judges were highly critical of coroners’ inquests), it refused to confirm that a misdirection was sufficient ground either. However, in the Bravo case, Carter’s refusal to admit relevant evidence did provide a ground for quashing the verdict.165 How far coroners were influenced by the possibility of review remains unexplored.166


No rules provided a framework encouraging uniformity, no knowledgeable clerk gave law to an unqualified coroner and no regular bar constrained his autonomy.167 Despite formal disclaimers of responsibility, the Home Office would usually provide guidance on difficult points if requested, but these opinions had no authority and do not seem to have been made available in collected form.168The Coroners’ Society might have emulated the Association of County Court (p.951) Registrars in compiling guidance, but although it originally aspired to ‘promote regularity and uniformity’, it was never fully representative, tended towards conservatism and seems seldom to have been consulted by its members.169 The Lord Chancellor used his power to remove a coroner only in extreme cases, so a maverick like Troutbeck could safely take a completely different line from his London colleagues on controversial points.170 The Chalmers Committee recommended the establishment of a rule committee but when a rule-making power was given in 1926, results were initially disappointing.171


The most contentious exercise of the coroner’s discretion was whether to call medical evidence and, if so, what and whose,172

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