Disclosure of documents

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Introduction

1. The duty of disclosure, both to and by the coroner, arises from the commencement of an investigation,[1] it continues through the pre-inquest stages and remains a continuing obligation to be kept under review throughout the inquest hearing.

Disclosure to the coroner

2. Marshalling evidence is a judicial function. The evidence collected during an investigation needs to be relevant, reasonable, sufficient, and proportionate to the scope of the inquest. The coroner should set clear dates for disclosure of material, and should monitor and act upon any non-compliance.

3. The coroner’s power to compel disclosure arises at the opening of their investigation and is found in Schedule 5 part 1(2) of the Coroners and Justice Act 2009 (‘the Act’). A coroner who is conducting an investigation may, by notice, require any person (a) to provide a written statement about anything specified in the notice, (b) to produce documents in their custody or control relating to a matter relevant to the investigation, or (c) to produce for inspection, examination or testing anything in their custody or control relating to a matter relevant to the investigation, within such period as the coroner thinks reasonable.

4. Coroners should only issue what has become known as a ‘Schedule 5 notice’ to compel disclosure where that disclosure is necessary and there is a need for compulsion to obtain it. Usually issuing a Sch. 5 notice will not be necessary, as the people and organisations involved in a death will voluntarily provide documents on request.[2]  Unless there are exceptional circumstances, the coroner should attempt to obtain relevant disclosure by agreement, before issuing a notice.

5. Once the coroner has decided to hold an inquest then Sch. 5 part 1 (1)(b) of the Act provides for a notice to require attendance of a person, at a time and place notified, in order to produce documents which relate to a matter that is relevant to an inquest. That time and place need not be during an inquest or pre-inquest review hearing (PIR), although it is preferable to link such a direction under schedule 5 to a court hearing and deal with the matter in open court in public.

6. There will be some occasions where, to protect themselves or their organisation from potential GDPR[3] breaches, a person or organisation invites the coroner to serve them with a Sch.5 notice before providing disclosure. The GDPR provisions do not apply to personal data where disclosure of that data is required by an enactment, a rule of law or an order of a court or tribunal,[4] this includes in response to a coronial order or Sch.5 notice.

7. In such cases the coroner may wish to make a formal disclosure order, rather than issuing a Sch. 5 notice. The suggested wording of an order for disclosure is set out here.

Example Disclosure Order Wording
I direct that:

  1. By [date] all Interested Persons, having conducted reasonable and proportionate searches, must disclose to the Court all potentially relevant documents identified by their searches; and
  2. By [date] all Interested Persons must assure the Court in writing that all potentially relevant documents identified by their searches have been disclosed to the Court; and
  3. By [date] all Interested Persons must indicate with precision and in writing any suggested shortcomings in disclosure made to them of documents relevant to the scope of the Inquest.

8. A ‘document’ means any medium in which information of any description is recorded or stored. This includes information stored in an electronic form.[5]

9. Not all documents received by a coroner are disclosable onwards to interested persons (IPs) and some thought must be given both to relevance of received documents and the form in which a relevant document is disclosed. Redaction of irrelevant material is discussed further below.

10. The provisions in s.101(1) (external link) of the Online Safety Act 2023 have, since April 2024, enabled coroners investigating the death of a child to send schedule 5 notices to OFCOM who in turn can require access to data, or reports on data so that they may respond to the notice or prepare a report in connection with such an investigation.

The Worcestershire Coroner case

11. The Worcestershire case[6] considered the disclosure of material for the purpose of an inquest that may attract public interest immunity. It illustrates two important points (1) the public interest in the pursuit of a full and appropriately detailed inquest may outweigh a public interest claim for non-disclosure and (2) greater disclosure may be required by and given to a coroner than is subsequently passed on to IPs.

12. In Worcestershire, a Serious Case Review had been conducted into the death of a child and the coroner demanded access to information reports and management reviews prepared by those involved. It was argued that the coroner had no right to disclosure of these documents as if such a release became commonplace those preparing reports or reviews would have cause to be less candid. It was claimed that the overview of the Safeguarding Board’s report that had been provided was sufficient. The coroner pointed out that he sought disclosure only to himself so that he might have a full understanding of a complex case in order to identify relevant witnesses, the overview report being a much-abbreviated version of the full papers.

13. When the coroner applied to issue summonses[7] the High Court agreed with the coroner, saying that the public interest in a full and detailed inquest clearly outweighed the claim for any public interest immunity. However, and importantly in terms of disclosure, it was emphasised that this was disclosure only to the coroner for the stated purposes. Onward disclosure by the coroner to IPs, and therefore to the public, would be a matter for determination by the coroner and subject to Judicial Review if their decisions were challenged.[8]

14. The Worcestershire case thus describes a two-stage process for disclosure, where the first stage is disclosure to the coroner alone for the purpose of assessing the scope and content of the inquiry. In the second stage the disclosure of that material to the IPs (and hence potentially the public at an inquest), will be made in the usual way, giving those who may wish to argue against disclosure sufficient opportunity to do so. This case is discussed in greater detail in Chief Coroner’s Law Sheet No 3 (PDF).

Disclosure by the coroner to IPs

15. Rule 13 of the Coroners (Inquests) Rules 2013 (the Rules) requires that where any IP[9] requests disclosure of a document held by the coroner, disclosure must be given ‘as soon as is reasonably practicable’ either by providing a copy of the document or by making it available for inspection. As the disclosure obligation arises from the commencement of an investigation it is not limited to cases where an inquest is to be held.

16. IPs, particularly the bereaved, must be informed that they have a right to ask and that there is no cost to disclosure whilst the investigation is ongoing. At the same time, it should be made clear that there is no obligation to accept an offer of disclosure. An IP should not be sent disclosure as a matter of routine unless it has been confirmed with the person that they wish to receive the relevant documents. This should be a particular consideration when disclosing a post-mortem report to the bereaved that may be distressing if sent unsolicited.

17. There is no specific formality required in making a request for disclosure. An informal oral or emailed request for information or documents made by an IP should be considered as if it were a rule 13 request.[10]

18. Deciding what to disclose is a judicial decision and so subject to judicial review. Where any claim is made for withholding a potentially relevant document from other IPs, the coroner should generally hear submissions on the matter in open court in so far as practicable. At a PIR the matter can be discussed in the absence of the press and public but only if the interests of justice or national security requires this.[11]

The timing of disclosure

19. Disclosure should be conducted in a proportionate manner. In most cases coroners will choose to disclose documents in batches as their investigation progresses, having scrutinised the documents received for relevance and ensured appropriate redactions have been made.

20. IPs need to be given sufficient information at an early enough stage for them to participate fully in the investigation process. Where IPs are unrepresented, coroners should ensure that they understand how disclosure works. Coroners are advised to provide unrepresented IPs with guidance on disclosure, both orally and in writing, as early as possible in the investigation process.

21. In particular, where a coroner is considering holding a documentary inquest or conducting an inquest in writing,[12] then when an IP is asked to consider whether they wish to raise any objection to a documentary inquest or inquest in writing being conducted that IP should also be offered disclosure of all relevant documents.[13]

22. Holding a PIR hearing in advance of giving disclosure to IPs is likely to be less effective. IPs should be given sufficient disclosure of relevant statements and documents before any PIR hearing, so that they can address items on the agenda on an informed basis.

23. In more simple cases where a PIR is not required, and particularly where IPs are not represented, the right to disclosure should still be made known to the bereaved in advance of the inquest.

24. Care should be taken to ensure that disclosure is provided to the correct person within a bereaved family. Where the coroner’s office has had contact with more than one family member, it would be sensible to obtain written confirmation of who should receive disclosed documents on the family’s behalf.

The format of disclosure

25. Disclosure can be made by the provision of ‘hard’ printed copies of documents, sending ‘soft copies’ electronically or by allowing inspection of documents at the Coroners’ Office. It is generally preferable to provide disclosure electronically, unless the recipient notifies the coroner that they would find that format difficult.

26. In practice, documents will most often be disclosed to IPs by sending electronic copies in PDF format or by giving access to a cloud based secure ‘sharefile’ containing the inquest documents from where they can be downloaded. Providing the disclosure in paginated and bookmarked PDFs should be the court’s usual practice. It is therefore reasonable for the coroner to direct that bundles of documents provided to the court also come in that form, particularly where an IP is being assisted by a lawyer.

27. There is no obligation within the rules for a coroner to provide hard copies of documents to IPs, although a coroner may choose to do so. Providing a hard copy bundle may assist unrepresented bereaved persons.

28. Piecemeal disclosure is unlikely to be helpful to IPs and can also create an unnecessary administrative burden on the coroner’s officer or staff. The requirement to disclose ‘as soon as reasonably practicable’ following an IP’s request may be best managed by agreeing a timetable for disclosure with the IPs. There will be many cases where common sense dictates that disclosure should be given in indexed and paginated bundles that have been ordered from the outset, rather than in lots of separate parts of a bundle being sent at different points in time.

29. In larger cases it is best practice to have separate disclosure bundles for:

  • witness statements and expert reports
  • contemporary documents
  • relevant policies and procedures
  • documents and reports created after the death.

If these different categories of documents are held in separate bundles from the outset then those bundles can easily be added to as the collection of further documents progresses without requiring re-pagination. Advance disclosure bundles that mix together different categories of documents in an unordered fashion are unhelpful and risk creating an additional administrative burden for the court and IPs at a later stage.

30. In many cases, particularly where public bodies are involved, lawyers representing an IP may offer the court assistance in producing indexed, paginated and book marked PDFs of documents.[14]

Redactions

31. Under Article 6 General Data Protection Regulation (GDPR) (external link) any processing of personal data, including processing carried out by public authorities such as courts, must be based on a legal ground. According to the principle of ‘data minimisation’ set out in Article 5(1)(c) GDPR (external link), processing of personal data must be relevant and limited to what is necessary in relation to the purposes for which they are processed.

32. Consequently a coroner directing the production of documents should only request documents containing personal data where this is necessary for the purpose of their investigation and inquest. Information that is not arguably relevant to the coronial investigation should not be requested by or disclosed to the coroner.

33. Where documents are to be disclosed to a coroner in the majority of cases there will be no need for those documents to include private addresses, email addresses and phone numbers of third parties, as these will be of no relevance to the investigation and inquiry. Those disclosing documents to the coroner should therefore be asked to bear in mind and comply with their own GPDR obligations and not provide such personal information to the court unless this degree of detail has some arguable relevance to the investigation. Documents should, therefore, usually be redacted to remove irrelevant personal data before they are provided to the court.

34. Where a coroner is disclosing documents onward to IPs those documents may need to be redacted before disclosure.[15]  The extent of any redactions will be a matter of judicial discretion. Personal information that the coroner has determined is irrelevant to the investigation (as an example the reverse of police witness statements may contain phone numbers and other contact details) should not be disclosed onwards. Medical and psychiatric records can often include a great amount of superfluous medical information about medical conditions or previous treatment received that are wholly irrelevant to the circumstances of the death (such as a deceased’s gynaecological history) or which may reveal irrelevant confidential details about third parties. Care should therefore be taken not to disclose such material unnecessarily. The totality of a deceased’s medical records should not be passed on to IPs without any prior scrutiny to establish the potential relevance of the contents.

35. Where redactions are applied to documents, to allay any suspicions that matters are being improperly withheld, it will usually be appropriate to indicate to the IPs in broad terms the nature of the material redacted and the reasons for doing so.

36. There is nothing in the coronial statutes or statutory instruments to prohibit different IP recipients being given versions of documents with different redactions, but there should be reasonable justification for doing so and it is preferable to avoid such a position if at all practicable.

37. Where redaction software is used coroners should ensure that the electronic redactions are permanently made and whenever possible provide ‘flattened copies’ of PDFs of documents to ensure that redactions are not reversible. In some PDF programmes there may be a difference between creating redaction annotations and applying them. Redaction annotations that have not been applied can be easily removed and then the contents underneath them is revealed (or even if they are not removed that content can be accessed). Once redactions are applied the data is completely removed from the file and cannot be restored.

Health Records

38. On occasion, the relevant NHS Trust involved in an inquest will provide the coroner with the entirety of the deceased’s medical records that they hold, rather than only those parts of the records that are potentially relevant to the circumstances of the death (such as the records from the relevant hospital admission). Such records can often be voluminous and largely irrelevant to the investigation underway. It will usually be both unnecessary and inappropriate for all of the deceased’s medical records received in this way to be disclosed to other IPs.

39. The coroner should, in the first instance, assist the organisation giving disclosure by being as specific as possible about which records the coroner requires: either specifying the period of time the records should cover or the types of records required. If excessive disclosure is given the coroner may, where appropriate, reject this and direct that only potentially relevant documents are provided to the court.

40. Care may also be needed to ensure that relevant health or social care records do not include irrelevant information about third parties that the deceased has given to health care professionals. The public body concerned can be directed to provide an appropriately redacted copy of the records to the court.

41. Where a bereaved family are seeking disclosure of a wide range of health records that the coroner considers irrelevant to the scope of the inquest it may be appropriate to refer them to their rights to obtain these directly from the record holder under s.3(1)(f) of the Access to Health Records Act 1990 (external link).[16]

The post-mortem examination report

42. Rule 13(2)(a) makes specific provision for disclosure of a post-mortem examination (PME) report. It is common that the PME is one of the first documents to be provided to the coroner and hence one of the first to be disclosed and it is likely that it will need to be disclosed without delay.[17]

43. Some bereaved will not wish to read the PME report. There should be sensitive discussion with the bereaved about their wishes before a copy of the PME report is sent to them.

44. Whilst there may be some delay to receiving the formal written PME report, once the coroner is in receipt of any communication from the pathologist (such as an email) giving a cause of death, this would be considered a relevant ‘document’ under both s.48 of the Act and rule 2, and so it is disclosable. Prompt disclosure of the outcome of the PME is of particular importance should the family wish to challenge the pathologist’s findings.

45. A major exception to the right to disclosure of a PME report is where there are criminal proceedings, in contemplation or commenced, and its disclosure might interfere with the police investigation. Rule 15(d) makes specific provision for such a refusal.

46. A doctor involved in the care of the deceased prior to death will not always be an IP. If a copy of a PME report is requested by such a doctor then, under reg.27, the GP or treating clinician in a hospital will usually be considered a proper person to be given disclosure of the PME report.

Disclosure of other material

47. Rule 13 explicitly requires disclosure of certain material should an IP request this:

  • any other report provided to the coroner during the course of the investigation
  • the recording of any public inquest hearing if available (i.e. opening, PIR or the final inquest hearing)
  • any other relevant document.[18]

48. It is for the coroner to decide what is a relevant document. As this is a judicial decision determination of a document’s relevance is always a matter for the coroner rather than their officer. Often the threshold for relevance will be generously low, as little would be more unfortunate than failing to disclose a document which is later found to be central to an issue in the inquest. For this reason, it is sometimes the case that coroners will invite the representatives of IPs to inspect lists of documents judged not to be relevant without actually supplying copies, and then only provide copies to all IPs of the arguably relevant documents.

49. In Lagos[19]  the Court held that a police report on the case provided to the coroner was not a disclosable document. It was ‘intended to assist the coroner in understanding the issues and deciding which witnesses were to be called. They are not adduced in evidence at inquests because they are not primary evidence.’

Refusal of disclosure – legally prohibited or privileged documents

50. Rule 15 provides several exceptions to disclosure:

  • Where there is a statutory or legal prohibition on disclosure.
  • Where the consent of the author or copyright owner cannot reasonably be obtained. The inference is that the author or copyright owner should be asked for consent. The cases of Peach[20] and Hicks[21] dealt with ownership of documents and it was made clear that there was no right to require the coroner to produce a document given in confidence. There is nothing to suggest that a refusal to agree to disclosure by a document maker must be ‘reasonable’ or that the coroner can impose a judgment on the validity of the refusal.
  • Where the request is unreasonable. This might occasionally relate to circumstances where an extremely large amount of documents are requested – such as earlier medical records, where although arguably relevant to the death the bulk of the documents are not material to the issues to be explored in the inquest. However, this subsection would be unlikely to provide an excuse not to allow inspection of relevant documents already held at the coroner’s office.
  • The document relates to criminal proceedings whether contemplated or commenced. This would commonly relate to police or Health & Safety Executive statements.
  • The coroner considers the document irrelevant to the investigation. Note that it is relevance to the investigation that is the key, and therefore the scope (or likely scope) of the inquest may need to be first determined before the question of relevance can be answered.

Sensitive or upsetting material

51. It is clearly important that documents containing very sensitive details (written or photographic) are not sent out by way of disclosure, particularly directly to a family, without consideration of the circumstances. However it is not for the coroner to act as the arbiter of what any bereaved IP should be allowed to see on the grounds of taste or sensitivity.

52. If the material is relevant to the investigation and inquest it may be requested by any IP. But at the very least such material should be identified in the coroner’s office and a discussion held with the relevant IPs about its potentially upsetting nature.

53. Particular care should be taken when considering the disclosure of photographs. Whilst all will be aware that an image of the deceased at death might obviously upset the bereaved, it should also be recognised that others images, such as a photograph of an empty post-impact vehicle or of a ligature in a police exhibit bag, might also cause significant distress to the bereaved.

Correspondence from MPs and others

54. Coroners may from time to time receive correspondence from others, such as special interest groups, the local Police and Crime Commissioner or an MP about an ongoing investigation.

55. The constitutional principle of the separation of powers and the usual conventions underpinning the rule of law are such that a coroner should not comment on any individual death investigation or preliminary inquiries relating thereto. No substantive response to such communication should be made and, to avoid any suggestion of influence, coroners should consider disclosing any such correspondence received to all IPs.

56. In this regard it is noteworthy that a formal ‘advice note’ from the Parliamentary Commissioner for Standards regarding  MPs writing to judges (external link) (which includes coroners) was updated in February 2023. The advice note states that:

MPs should not generally write to judges. Letters from MPs will generally appear as attempts to interfere with legal proceedings, which is a breach of the separation of powers.

57. The guidance is firmly phrased and goes on to indicate that MPs should not appear to be using their status to attempt to interfere with the process of justice or with judicial independence and that this would include, in particular, writing to judges/coroners:

(a) asking them to consider specified matters in relation to proceedings before them;

(b) asking them to accelerate proceedings; or

(c) complaining or making observations about timing, listing or other administrative matters in connection with proceedings

58. Any disclaimer to the effect that the Member does not wish to interfere with the process of justice does not make a letter acceptable where no other purpose could reasonably be assigned to it.

59. Depending on the content of the letter, a coroner who does not make it public could be at risk of giving an appearance of bias if the fact of receipt later comes to light. It is for the individual coroner to determine how best to deal with such correspondence. However coroners should bear in mind that the principle of judicial independence extends well beyond the traditional separation of powers and requires that a judicial office holder be, and be seen to be, independent of all sources of power or influence in society, including any influences from politicians, the media and commercial interests. [22]

60. Coroners should therefore consider disclosing any such a letter to the IPs in an inquest making it clear (in open court if appropriate) that such correspondence has not in any way influenced the court and could invite brief comments from all IPs before continuing with the investigation.

61. The Lady Chief Justice (LCJ)’s Office will assist coroners with responses to MP letters, as part of their responsibility to manage the judiciary’s relationship with Parliament. The relevant email address for such correspondence can be obtained from the Chief Coroner’s office. Coroners should copy to the Chief Coroner’s Office any correspondence about MP letters that is sent to the LCJ’s Office, so the Chief Coroner retains an overview of how MP letters are being handled.

General discretion to disclose documents

62. Under reg 27(2) (external link) a coroner has a general discretion to provide any document or copy of any document ‘to any person who in the opinion of the coroner is a proper person to have possession of it.’

63. In practice this regulation may be relied upon to provide selected relevant documents to witnesses who are not IPs but who require sight of some of the inquest documents to enable them to give evidence (including expert witnesses) and it is also the source of the discretionary power to disclose documents to the media.[23]

Use of disclosed documents

64. There is nothing in the coronial statutes or statutory instruments which explicitly prohibits IPs using documents disclosed to them by the coroner for a collateral purpose.[24]

65. Coroners may therefore wish to make a specific direction, either written on the front of a disclosed bundle or by making a formal direction at a PIH, to the effect that the documents disclosed to IPs are to be kept confidential and only used for the purpose of the inquest. An example of a notice that might be used is set out below.

CORONER’S DIRECTION: USE OF DISCLOSED DOCUMENTS

These documents are disclosed to you in accordance with Rule 13 of the Coroners (Inquests) Rules 2013 for the purpose of the coronial investigation and inquest proceedings only.

The coroner does not authorise the further dissemination of these documents and (save for those documents already in an interested person’s possession in advance of their disclosure by the court) disclosed documents are not to be shown or provided to any person who is not an interested person to the inquest or an interested person’s legal representative or employee unless such permission has first been obtained from the coroner in writing.  Further, the information contained within these documents is provided to you solely for the purposes of inquest and in so far…..

66. Those who provide sensitive documents to a coroner will on occasions ask that other IPs give an undertaking to the court as to their confidentiality before they are disclosed onwards by the coroner. Whilst this practice has been endorsed in the High Court, albeit without hearing any argument on the point,[25] it is arguable that an IP’s right under rule 13 to disclosure of relevant documents persists regardless of whether an undertaking is signed. Good reason would therefore be required for a decision to refuse to disclose documents to an IP unless an undertaking is given. In most cases an undertaking will not be necessary if, as an alternative, the direction above regarding the use to which disclosed documents can be put has been given by the coroner.


[1] See schedule 5 part 1(2) CJA 2009 and rule 12. The rule 13 duty is to disclose at the request of an interested person (IP) that duty is not connected to the inquest but arises from the very outset of the investigation given that by virtue of s.47(2) CJA an IP is an interested person in the entire investigation.

[2] The GMC’s ‘Good Medical Practice’ (external link) at §73 requires doctors to cooperate with formal inquiries and complaints procedures and to offer all relevant information. Additionally the GMC guidance for doctors entitled: ‘Confidentiality: good practice in handling patient information (external link)’ similarly advises doctors at §134-5 that their duty of confidentiality continues after a patient has died, but that they must disclose relevant information about a patient who has died when required by law or to help a coroner, procurator fiscal or other similar officer with an inquest or fatal accident inquiry.

[3] UK General Data Protection Regulations (external link), the UK’s post-Brexit version of the EU GDPR (external link).

[4] Data Protection Act 2018 Schedule 2 (external link) part 5 (2).

[5] Section 48(1) CJA 2009 and rule 2

[6] Worcestershire CC v Worcestershire LCSB and HM Coroner Worcestershire (external link) [2013] EWHC 1711, [2013] Inquest Law Reports 179.

[7] This being before the statutory changes in 2013 and the availability of a schedule 5 notice.

[8] In the Worcestershire case the coroner undertook not to further disclose the documents without the opportunity for further process before the High Court.

[9] Designated under s.47 Coroners and Justice Act 2013 (external link) (the Act).

[10] R (McLeish) v HMC Northern District of Greater London (external link) [2010] Inquest LR 202, [2010] EWHC 5624 (Admin) Although decided under the old rules, the Court held that the fact the claimant had made it plain to the coroner’s officer she wanted to know how her son died was to be taken as an application, albeit an informal one, for disclosure of the PME and histopathology reports to her.

[11] Rule 11(5)

[12] See section 5 of this Bench Book.

[13] See Chief Coroner’s Guidance 29 §12 here

[14] Coroners may therefore want to come to an agreement with their local NHS Trusts that the  medical records of a deceased person are always be provided to the court as an indexed, paginated and suitably redacted PDF at the outset.

[15] Rule 14(b)

[16] Under which the patient’s personal representative and any person who may have a claim arising out of the patient’s death may apply for access to their records.

[17] R (McLeish) v HMC Northern District of Greater London (external link) [2010] Inquest LR 202, [2010] EWHC 5624 (Admin)

[18] ‘Document’ means any medium in which information of any description is recorded or stored (see rule 2)

[19] Lagos v HM Coroner for the City of London (external link) [2013] EWHC 423 (Admin) [2013] Inquest Law Reports 34. The Defendant successfully objected to disclosure of the police report on the ground that it was a confidential document which could not be relevant to the judicial review claim since it was not part of the evidence upon which he reached his verdict.

[20] R v Hammersmith Coroner exp Peach [1980] QB211 or 2 WLR 496

[21] R v Southwark Coroner exp Hicks [1987] 1 WLR 1624

[22] See further the Guide to Judicial Conduct, July 2023 (PDF) (which specifically applies to all coroners) for further discussion of the principles of judicial independence, impartiality and integrity.

[23] See further Chapter 9 re Media requests for disclosure of documents.

[24] In particular there is no coronial equivalent of the Civil Procedure Rule 32.12(1) that “Except as provided by this rule, a witness statement may be used only for the purpose of the proceedings in which it is served.”

[25] see R (Smith) v Oxfordshire Asst. Deputy Coroner (external link) [2008] 3 WLR 1284, [2008] Inquest Law Reports 44, at §38.