In Charles Dickens’ Bleak House, the coroner’s court is in the back room of a pub, the Sol’s Arms (geddit?). The coroner is drunk and the inquest is held – and a verdict dispensed – while a game of skittles rattles in the background. Of course, this is Dickens at his caricaturist best (and we all know that he was never a fan of Victorian law and justice). But coroners’ courts, and the inquests that are held there, have long needed an overhaul.

The Coroners and Justice Bill is the government’s attempt to implement that long-awaited reform. Some practitioners and pressure groups are concerned that the bill doesn’t go far enough, and that there isn’t enough money behind it to make it work. There is a real risk, they say, that this bill will come to be seen as a missed opportunity.

The coroner’s role is to investigate ‘unnatural’ deaths, such as violent deaths and deaths in custody. Coroners have to determine the cause of death either by ordering a postmortem, or, if that is inconclusive, they must hold an inquest. Inquests have, however, become increasingly complex and difficult for a number of reasons. In particular, bereaved families have become much more articulate and vocal about the deaths of loved ones, putting new pressures on the system to investigate deaths more often and more rigorously.

This has politicised some inquests, which have become battlegrounds between bereaved families and the state or other organisations, played out in front of the media. Witness the huge attention paid to the De Menezes inquest. The degree of press coverage and public interest, and the sheer volume of witnesses and documents, was such that new facilities had to be arranged (a famous local cricket ground was the only venue found to be adequate).

There is also a new culture of accountability, which means organisations and the state are more likely to be scrutinised and called to account in all kinds of situations, not least when a death occurs.

These pressures had become manifest in a series of high-profile disasters such as Hillsborough in 1989. In the 1990s coroners came under further, intense public scrutiny for their actions. For example, there were many concerns raised over the coroner in the Marchioness disaster, who had the hands of victims cut off for identification purposes. Then, of course, there was the Shipman case, where the faking of patients’ death certificates brought home the shortcomings of the death certification process.

What came out of such episodes was a new perception that an inquest should be a forum for preventing accidental deaths from happening again; logical, but, again, putting greater demands on the inquest process by significantly widening its remit.

The culmination of all this was a sequence of inquiries into the coroners’ system led by Dame Janet Smith, and what was known as The Fundamental Review by Tom Luce. They identified a court process that was fragmented, localised and out of step with the modern world.

The new bill intends to radically reconfigure this overloaded system – and it does go some way towards doing this. It contains provisions for a new national system, with a chief coroner overseeing all the courts and their coroners (who will be full-time), and puts in place national standards. Justice minister Bridget Prentice tells the Gazette: ‘[By] having a chief coroner who will be able to direct a newly structured coroners system… there will be consistency across the country.’

A new right of appeal will enable families to appeal a coroner’s verdict (or the process) directly to the chief coroner, instead of through the high court by way of judicial review, which has proved an expensive and time-consuming route.

There will be a new Charter for the Bereaved, intended to remedy the current lack of involvement of the bereaved family in coroner investigations. Prentice says: ‘The charter … will say: "This is the type of service that you should expect to get from the coroners and, if you don’t get it, these are the ways in which you can rectify that". For instance, the charter says: "The coroner’s office will contact family members at least every three months to inform them of the status of the case, and explain any reasons for delays", and "their views will be taken into account on the timing and location of inquests, and [they] will be able to see at no charge a number of documents and reports".’

Another uncontroversial element of the bill is the provision for the use of MRI scans instead of invasive postmortems for diagnosing the cause of death. MRI scans are usually used for diagnosing a range of medical problems among the living, but specialist radiologists can also use the scan of a dead person to ascertain the cause of that person’s death. Many people dislike the bodies of their loved ones being subjected to the invasive postmortem procedure and certain faith groups are against it on religious grounds.

All sensible modernising stuff; and stakeholders welcome these initiatives. The issue, however, is whether these structural changes go far enough. Critics of the bill argue that it should do more to focus inquests on the real issues – not just what caused this death but also, how can we stop this happening again? Take, for example, the Hillsborough disaster: 96 victims and the coroner’s verdict was simply ‘accidental death’, which meant that no one has ever properly been held to account. What critics say is that coroners should have the ability to widen the scope of an inquiry to examine what went wrong, and consider ways of preventing future fatalities, for instance by identifying systemic failures.

These days coroners can do this to an extent. Note the robust approach of the outspoken Andrew Walker, assistant deputy coroner of Oxfordshire, in relation to the deaths of soldiers in Iraq – he criticised the lack of equipment and MoD ‘penny-pinching’.

Lack of discretionBut inquests are and will continue to be limited in two important ways. First, under the new bill, which reflects the current position under case law, there is discretion for the coroner to widen the scope of an inquiry in what are known as ‘article 2 cases’, namely, cases where the state or an agent of the state is involved, but there is no such discretion for cases involving private organisations and bodies. Inquest, the advice service and campaigning charity for bereaved families, argues that the bill should include a specific discretion for a coroner to order a wider inquiry where the death is a matter of ‘public health and safety’, regardless of whether the state is involved. This would mean ‘raising concerns about rail, aviation and workplace safety, multiple fatalities such as the Marchioness, King’s Cross or Hillsborough disasters, the death of a vulnerable older person in a private nursing home, or a death in a private workplace,’ Inquest says.

Helen Shaw, one of the organisation’s co-directors, explains: ‘In other countries, the inquest feeds into policy and legislates for changes – the coroners system does now have a preventative role.’

The second limit relates to the outcome of the investigation and what a coroner can and cannot decide. Before a groundbreaking case in 2004, a coroner was supposed to ascertain how a person died. Since 2004, coroners can now decide on the circumstances which led to a person’s death (in what is known as ‘a narrative verdict’). The current bill puts this new position, derived from case law, into statute. But a coroner can only discuss the circumstances of the death insofar as they do not apportion liability, whether criminal or civil, which is strictly prohibited.

The problem with this is that a coroner may be wary of including certain issues, using certain words and mentioning specific acts or omissions for fear that he or she is opening up issues of liability. This, critics say, means that the verdict is unsatisfactory both for the family and for society as a whole, as it cannot properly determine anything. Instead, campaigners such as Inquest argue that the coroner should be free to say what happened, and what acts or omissions there were, without having to concern himself about liability. In its recent briefing on the bill, Inquest says: ‘The issue in an inquest is responsibility, not liability … [the bill should] free a coroner (or a jury) to describe the acts or omissions which are responsible for the death.’

The argument against allowing further discretions and a freer narrative is that they would pave the way for more civil and criminal liability claims. However, some say this is misconceived. If there are issues of civil liability, then it should not be up to a coroner’s inquest to avoid discussing them. If the civil liability is there, then it is there, there is no getting around that. If the claim is unfounded, then the claimant will not be successful.

Shaw says: ‘Since the introduction of narrative verdicts in 2004, there is no evidence that there has been a rash of unfounded claims.’ Nor is it the case that families are in it for the money, which seems a terrible insult: ‘For most families, bringing civil claims is not in the forefront of their minds, it is about preventing it happening to someone else’s son, brother or father,’ adds Shaw.

Despite these criticisms, however, many feel the new bill does actually give sufficient scope for coroners. Amanda Stevens, a past president of the Association of Personal Injury Lawyers (APIL) and head of personal injury and clinical negligence at City firm Charles Russell, says: ‘We are respectful of the fact that the court is a fact-finding exercise alone. We do not feel that coroners are constrained in what they do and we know what their boundaries are.’

Legal representationFor lawyers and their clients, one very important problem with the bill is that there is no provision for funding for legal representation. Currently, a bereaved family can only get funding from the Legal Services Commission in very exceptional cases. Yet state agencies such as the NHS or the police will always have extensive legal representation at an inquest.

Mark Stobbs, director of legal policy at the Law Society, which has written its own response to the bill, says: ‘There is a lack of equality of arms, and relatives of the deceased need to be represented.’

The government’s position is confusing. They argue that the coroner’s court is not like other courts, as Prentice says: ‘The coroner system is not in principle an adversarial system and therefore bereaved families shouldn’t necessarily need to be represented by lawyers.’ Stevens disagrees: ‘This is a formal courtroom, the public and the media are there and we are dealing with very complicated issues. If the public body has one, if not two, legal representatives – at taxpayers’ expense – then bereaved families should also.’

Prentice argues, however, that there is already provision for funding where necessary: ‘We recognise that there are exceptional cases and legal aid is made available for those exceptional cases, article 2 cases for example, where the state is involved.’

However, according to APIL, statistics show that the number of exceptional cases which have received funding is what Stevens calls ‘pitiful’. In 2007-8, there were 12 successful applications out of 69, and in 2006-7, only 16 out of 104, percentages of around 15%.

In fact, the government appears lukewarm about the whole idea of legal representation. Prentice says that, instead of giving families better representation, there should in fact be fewer lawyers involved: ‘I’d like to work more on dissuading public agencies from using lots of lawyers in the first place.’ She goes on to say that perhaps we should develop a system where the legal costs of the bereaved family are met by the public agency or organisation which chooses to be so represented, as she explains to the Gazette: ‘I think that it would be worth exploring whether … in particular cases (and we would have to define these very carefully) that... [the organisation]… would have to pay the costs of representation for a bereaved family if that was appropriate.’

But none of this may matter, if there is insufficient funding for the reforms. There is concern that the new regime will involve considerable additional costs which have to be met from somewhere. Central funding is being earmarked for the new national initiatives, such as the post of chief coroner, but the rest – additional salaries, new facilities, the costs of disclosing documents and other administrative costs – will be met locally, by councils and police authorities, as they are currently.

There is much that is radical in this bill, intended to give bereaved families some sort of legal standing at an inquest and to nationalise a fragmented system. Let’s hope that its shortcomings do not become manifest failures.

Polly Botsford is a freelance journalist