A post-mortem by a coroner is needed when a death is sudden, violent or unnatural. You cannot appeal against the decision but you can challenge it in two ways:-
1. Applying to the High Court for a judicial review; or
If you want to apply for a judicial review, you need to do so within 3 months of the decision. The grounds for judicial review are:-
- Illegality;
- Procedural unfairness; and
- Irrationality.
You should know that judicial review has an extremely high hurdle and successful challenges are rare.
It happens often that the 3-month limitation period has passed or new evidence has emerged since the decision was made. In that case, you may want to consider the alternative route below.
2. An application under section 13 of the Coroners Act 1988
Unlike judicial review, there is no time limit for this route. However, you should still act as soon as possible as delay may make a fresh investigation less desirable and necessary.
First of all, you need to seek legal advice on the merits of your case in order to identify:-
- An error, irregularity or new evidence; and
- The reason why it is necessary or desirable in the interest of justice that an investigation should be held. This is not about the problems with process unless the process adopted for achieving the original decision has caused justice to be diverted. Procedural irregularities by the coroner do not automatically mean that it is in the interest of justice that a fresh investigation should be held.
Secondly, you need to make an application to the Attorney General (AG), which is known as a fiat. The test for granting a fiat is that the AG must be satisfied on the evidence provided in the application that there is a reasonable prospect of success in the High Court. If the AG refuses to grant a fiat, its decision is unlikely to be judicially reviewable, especially if there is no dishonesty or exceptional circumstances:-
‘the courts have no jurisdiction to review the Attorney General’s decision in either a civil or criminal case… If the Attorney-General were to commit a serious error of judgment by withholding consent to relator proceedings in a case where he ought to have given it, the remedy must in my opinion lie in the political field by enforcing his responsibility to Parliament and not in the legal field through the courts.’ (Gouriet v Union of Post Office Workers [1978] AC 435)
Thirdly, within 6 weeks of the grant of the fiat, you should make an application to the High Court under the Civil Procedure Rules Part 8 for quashing the original decision and ordering a fresh investigation.
How can we help?
Ronny Tang is an Associate in our expert Dispute Resolution team, specialising in defamation claims, contentious probate and inheritance claims, Trusts of Land and Appointment of Trustees Act 1996 claims, Equality Act 2010 claims and Protection From Harassment 1997 claims.
If you need any advice concerning the subject discussed in this article, please do not hesitate to contact Ronny or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
Contact us