Position statements in inquests

We often hear that a coroner’s investigation and inquest is an inquisitorial process. It’s not a trial. There are no pleadings, no charge sheet, and, crucially, no “parties” in the traditional legal sense. It is the coroner’s inquiry - though interested persons (IPs) can ask questions to assist the coroner, it remains the coroner’s inquiry and not that of the IPs.

In a coroner’s court, there’s no case to win, no allegations to prove or disprove. The coroner’s role is to establish and record the facts surrounding a death - not to determine liability. There’s no burden of proof. Indeed, the last Chief Coroner emphasised even avoiding the term ‘standard of proof’ in an inquisitorial jurisdiction, preferring to speak instead of ‘the degree of confidence’ required before a fact might be found.

Given the process is inquisitorial, IPs don’t enjoy the Article 6 protections they would in civil or criminal proceedings. They cannot dictate which evidence is heard or which witnesses are called. All witnesses are the coroner’s witnesses - no one else’s, despite the common shorthand of referring to “our witness” or “their witness”.

Yet despite this halcyon vision of an inquisitorial truth-seeking inquiry, increasingly practitioners have expressed concern at a shift in the tone and function of inquests, with more adversarial styles of questioning being adopted by coroners or frank cross-examination tolerated on the part of counsel, alongside organisations or witnesses feeling pressured to adopt a formal position or make admissions of fault.

One manifestation of this shift is the growing use of position statements, often directed at organisational IPs, asking them to set out their stance on the facts, acknowledge any failings, and sometimes even comment on causation.

What’s more troubling is that this practice may soon be formalised in law, with the current draft of the Public Office (Accountability) Bill - better known as the Hillsborough Law, proposing to make it a statutory requirement, as we discuss below.

Should IPs have a position in an inquest?

Having a ‘position’ in the context of an inquest is, however, a complete anathema. IPs aren’t parties. They are not there to argue a case. Asking them to adopt a formal position, especially before evidence is heard, runs counter to the inquisitorial ethos.

To demand a position statement is also inconsistent with Rule 27 of the Coroners (Inquests) Rules 2013, that is usually seen as preventing any person making a closing speech to a coroner. No person may address a coroner (or jury) as to the facts, because it is not for anyone to seek to persuade a coroner or jury that their particular position of the facts is the one they should adopt. So how is a position statement - essentially an opening speech, not in breach of that same principle?

Instead, IPs should simply be coming to court to do all they can to assist the coroner’s inquiry; sharing what they know about the death and providing any relevant evidence they hold about events.

A practitioner who has a keen interest in the case will, as a human, have their own personal take on what has occurred, but that is a private view and not something to be formalised into written legal submissions to the court.

So why are position statements becoming more common?

The increasing demand for position statements in inquests can be traced, in part, to the influence of what has become known as the “Tainton admission”, following the case of R (Tainton) -v- HM Senior Coroner for Preston and West Lancashire [2016] EWHC 1396 (Admin).

The Court held that, in an Article 2 inquest where a potentially causative failure had been admitted but it could not on the evidence be shown to be causative of the death, where that failure formed part of the circumstances in which the death occurred, then the admitted failure should be formally recorded on the Record of Inquest, as it would be incomplete picture were it not recorded.

However, there is nothing in the Tainton judgment that mandates relevant IPs (who will usually be public bodies) to make such admissions in advance of an inquest, nor directs the process by which any such admission might be made. In Tainton the ‘admitted failure’ to make a timely oncological referral of the deceased had been: (i) established in an independent expert clinical review pre-inquest; (ii) recorded in a PPO report; (iii) in an email sent in advance of the inquest the NHS Trust had then accepted the conclusions of these two investigations; (iv) that acceptance was repeated orally by counsel on behalf of the Trust at the inquest; and in addition (v) the failure to refer the deceased was accepted by the relevant clinical witness when giving their oral evidence.

Nevertheless, the Tainton judgment has been interpreted by some as encouraging voluntary, “formal admissions” by state agencies, particularly where their failings are clear and uncontested. Over time, this seems to have developed into a practice of some coroners requesting position statements setting out formal admissions from IPs, though this remains a discretionary and non-binding aspect of pre-inquest preparation.

More recently, some coroners have gone further, asking for position statements on causation - perhaps in an effort to streamline proceedings. This raises serious concerns.

The Public Office (Accountability) Bill: a new legal landscape

The proposed Hillsborough Law would take this practice a step further. Section 2(6) of the Bill states:

“A public authority must provide a position statement for the purposes of an investigation or inquiry.”

This would include inquests, bringing what has to date been a discretionary and evolving practice into the realm of legal obligation. While Section 2(6) of the Bill imposes a duty on public authorities to provide position statements, Section 3(6) introduces a limited exception. It provides that:

“The person leading an inquiry may dispense with the obligation to provide a position statement only if they consider that compliance with that obligation would be contrary to the efficient and effective conduct of the inquiry (and must give their reasons for being of that view).”

This exception would preserve a degree of discretion for coroners, allowing them to waive the proposed requirement where it may hinder the inquest process. However, the threshold appears high, the exemption must be justified and recorded.

Implications for public authorities - and others

This proposed clause raises a number of fundamental questions:

• A position on what? What exactly should any position statement cover?

• Is the position statement expected to address legal issues or factual matters, or both?

• If it is the facts, which facts? Only those to be recorded on the Record of Inquest, or broader issues?

• What if the IP doesn’t have a position - especially before hearing the evidence?

• Can a public authority simply say, “we have no position”?

• What happens if the public authority’s position changes as evidence emerges?

• What if a key witness who works for the public authority does not agree with or accept the organisation’s position – how will that be managed?

• Will a revised position be seen as a prohibited address on the facts under Rule 27?

• How will a jury be told about an IP’s position - and when?

Notably, the proposed obligation to file a position statement applies only to public authorities, including NHS Trusts, local authorities, government departments, the police, the armed forces, and schools. In inquests involving multiple IPs, including non-state actors such as private healthcare providers or care homes, what happens when only the public authority is compelled to provide a position statement? Would it be fair, or legally sustainable, for a coroner to direct an NHS Trust that it must set out its position on causation, while a private provider involved in the same care pathway can simply decline? The asymmetry is stark and could have significant implications for how evidence is presented and perceived.

A back door to causation?

Existing NHS England guidance is that NHS Trusts should focus on how an incident happened, rather than making findings on causation in their internal investigations – that’s the coroner’s job. Yet, if coroners demand position statements that set out an NHS Trust’s position on causation, this risks undermining the “just culture” that NHS England and others have worked hard to promote. Staff may feel exposed, and organisations may become more defensive, particularly if position statements are later used in civil litigation.

A shift towards adversarialism?

Together, these developments raise concerns about a gradual shift away from the inquisitorial nature of inquests towards a more adversarial dynamic. If the Bill’s proposed requirement for position statements in inquests is maintained, particularly if they touch on causation or breach of duty, it is likely to necessitate early legal advice and insurer involvement by the public authority, further entrenching an adversarial mindset.

But isn’t this clarity useful?

Perhaps, though this drive for ‘position statements’ might be construed in a different light. In a non-adversarial jurisdiction collaboration should be the mind set of all participants. It is the duty of public bodies and other IPs to work together with the coroner to help reveal the truth about a death.

To this end it seems to us acceptable to invite IPs to assist the inquest by drawing to the attention of the coroner those areas/issues where contrary evidence might exist and so needs to be obtained and examined, and also indicate areas where the IP is not aware of any contradictory evidence that the court needs to consider.

That’s not adopting a position - it’s helping the coroner assess the sufficiency of the evidence. However, a statutory obligation to provide position statements risks distorting that process unless very carefully framed.

Conclusion: transparency or tension?

There is no doubt that the Hillsborough Law is a response to profound failures of accountability. Its aim, to ensure candour and justice for bereaved families, is one that all public bodies should support.

However, the proposed requirement for position statements in inquests raises significant questions. Will it enhance transparency, or will it inadvertently entrench adversarialism? Will it support a just culture, or undermine it by compelling premature conclusions on the facts and causation? And how will coroners navigate the uneven playing field between public and private IPs?

If enacted, the Bill will likely prompt a recalibration of how inquests are approached, not only by public authorities, but by coroners and legal representatives alike. Coroners may require updated training to interpret and manage a statutory requirement for position statements in a way that preserves the inquisitorial nature of the process. Legal teams will need to advise their public authority clients more proactively, mindful of the potential downstream impact of position statements on civil claims, regulatory scrutiny, and reputational risk.

This shift could also influence how private providers operating under public contracts are treated, particularly where their functions are deemed “public” for the purposes of the Bill. As the legislation progresses, careful thought will be needed to ensure that the coronial process remains a forum for truth and learning - not one that inadvertently mirrors the adversarial dynamics of litigation.

This article was co-authored by Bridget Dolan KC.