On 1 January 2025 the Chief Coroner, Her Honour Judge Alexia Durran, published a list of ‘Non-responses to Prevention of Future Deaths (PFD) Reports’. In doing so she has confirmed a longstanding fear: that the Regulation 28 ‘Preventing Future Deaths’ regime embedded within the inquest process is failing to achieve its purpose. The list – a first of its kind- contains the names of institutions and individuals who failed to respond to Regulation 28 reports from coroners. Colloquially referred to as the “badge of dishonour” list, the intended aim is, presumably, to name and shame those who have been unresponsive and thereby enhance public accountability so that pressure can be brought to bear on those who have failed to respond. The problem is extensive, demonstrated by the range of institutions included within the list: HMP Wandsworth, the Ministry of Justice, Her Majesty’s Prison and Probation Service, the College of Policing, the Independent Office for Police Conduct, Oxleas NHS Foundation Trust, Surrey Police, North-East Ambulance Service, and the Department for Health and Social Care.
The Regulation 28 regime
The Inquest process exists to enable a coroner or jury to answer four statutory questions, including the question of how a deceased came by their death. However, the Regulation 28 regime is an important ancillary feature to the process, which creates a statutory duty upon a coroner, in certain circumstances, to produce a report to prevent future deaths (‘Regulation 28 report’). This duty arises when anything revealed by a coronial investigation gives rise to a concern that circumstances exist which create a risk of other deaths occurring, and the coroner is of the opinion that action should be taken to prevent the continuation of that risk. These reports are often integral to a bereaved family’s closure, so that they can be satisfied that the death of their loved one was not in vain and that future deaths may be prevented. Whether the process, as currently structured, is capable of delivering that satisfaction or reassurance is in doubt.
Regulation 28 reports are not made in every inquest, even in circumstances where the evidence may have shown that circumstances exist which give rise to a risk to life. The statutory language indicates that the mandatory duty arises when “in the coroner’s opinion” action should be taken. This has been confirmed by the Divisional Court to be a subjective element, which entitles the coroner to take into account, for example, resource constraints which might mean that there is no realistic prospect that a Regulation 28 report would be acted upon by the recipient.[1] It is therefore clear that the hurdle is not a negligible one. Organisations often attend the inquest with evidence of changes that they have proactively made in order to assuage the coroner that there no longer exists a risk to life and circumspection may be required to ensure that such changes are as effective as being claimed.
A culture of impunity
If a coroner is satisfied that they are duty bound to issue a Regulation 28 report, this sets in train a procedural timetable, in which the recipient of the report must ordinarily respond within 56 days (‘Regulation 28 response’). The response must contain details of actions taken or proposed, or, in circumstances where no action is proposed, an explanation as to why. There is therefore no guarantee that the publication of a Regulation 28 report will lead to any change from the individual or organisation to whom the coroner has identified as being responsible for overseeing circumstances which may bring about a continuing risk to life. A Regulation 28 response does not need to propose changes, and there are many occasions where organisations simply suggest that changes are unachievable, or that superficial steps have already been taken which suffice to remove any risk. If the coroner receives a response which does not appropriately address the issues within the Regulation 28 report, there is no power to take steps to address the issue(s) further. In fact, the Coronial Guidance makes clear that a coroner would be exceeding their powers if they chased an organisation for failing to reply, or if they engaged in further correspondence to clarify a vague or inadequate response.[2] It is this state of play which has arguably created a culture of non-compliance in which organisations do not feel obliged to satisfy their duty under the Coroners and Justice Act to respond within 56 days.
The need for the Chief Coroner to publish a “badge of dishonour” list exemplifies the problem. Despite its obvious importance, the regime lacks teeth. There is demonstrable need for further engagement from organisations which may have the ability to prevent future deaths, and yet there exists no proper structure to bring this about. The extent to which this public list will enhance participation from those ‘dishonoured’ organisations largely depends on the extent to which others outside the coronial process choose to pursue the matter, placing the burden on journalists, family justice campaigns and activists. If such issues are not pursued in the public arena, and institutions are not placed under pressure to manage their reputations, then the list will quickly become an obsolete part of the process.
Why this matters
Time and time again, we as society are reminded of the high cost paid in circumstances where organisations and governmental bodies do not learn from the lessons painstakingly revealed during an arduous inquisitorial process into preventable deaths. The Grenfell Tower Inquiry was set up in the wake of the fire in June 2017 which claimed 72 lives. The Inquiry’s Phase 2 report noted the woeful response of the UK Government’s Department of Housing, Communities and Local Government for a number of years before the Grenfell Tower fire, in failing to adequately act upon learnings provided by the inquests into deaths occurring during the Lakanal House fire in 2009. Those inquests were held in 2013, and the Inquiry held that the Lakanal inquest findings “should have been a warning to the department that building professionals were not aware of or were misinterpreting or ignoring” the relevant Building Regulations.[3] At the conclusion of the 2013 Lakanal inquests, the coroner wrote to the Department under what was then the Rule 43 recommendation regime. The letter identified a lack of clarity in the building regulations relating to external fire spread and recommended that the Department review the guidance and ensure that it was clear. The Grenfell Inquiry concluded that the department’s response to the Lakanal House fire was complacent and short-sighted, criticising the failure to treat the Coroner’s recommendation “with any sense of urgency, despite the fact that they had arisen out of an incident in which six people had died and the coroner had seen fit to make a number of recommendations with a view to preventing future deaths”.[4] Between 2013-2017 no meaningful change occurred in respect of the coroner’s recommendation on the clarity of the building regulations, and the Grenfell Tower refurbishment was carried out without the benefit of clarified guidance.
How to fix the problem
The Phase 2 Grenfell Tower Inquiry report recommended that “it be made a legal requirement for the government to maintain a publicly accessible record of recommendations by select committee, coroners and public inquiries together with a description of the steps taken in response. If the government decides not to accept a recommendation, it should record its reasons for doing so. Scrutiny of its actions should be a matter for Parliament, to which it should be required to report annually”.[5]
However, there is no guarantee that a recommendation arising out of a statutory inquiry will be adopted. In fact, the House of Lords Statutory Inquiries Committee reported in September 2024 that inquiries are often failing, primarily because when they report there is no obligation on the Government to act nor to give reasons for rejecting recommendations.[6] There also exists no means of systemically monitoring the implementation of any purported changes. As a result, the Lords’ Committee recommended that a new committee of Parliament be set up to monitor the Government response to inquiry recommendations and to ensure that accepted recommendations are in fact implemented.
This recommendation in part touches upon an issue that has been long identified by the charity INQUEST, as part of their ‘No More Deaths’ campaign, which highlighted that hundreds of vital changes are identified following inquests and inquiries and yet preventable deaths continue to occur as a result of inadequate responses. INQUEST has campaigned for a National Oversight Mechanism to collate recommendations and public bodies’ responses in a database, analyse responses from public bodies and issue reports, and follow up on progress. The mechanism would be bolstered by a power to escalate concerns and share thematic findings. This could, for example, pull together learnings which occur across different police forces, prison estates, and government bodies to ensure that repeat issues are properly identified and addressed. Until and unless a body is established in this way to monitor the improvements required to prevent future deaths, public bodies can simply rely on the weakness of the current coronial regime as a way to evade undertaking the cost and effort of improving their systems and therefore reducing the risk to life.
Angelina Nicolaou, Barrister, 1 Pump Court
[1] [2022] EWHC 3186 (KB)(Admin)
[2] Chief Coroner’s Bench Guidance, Part 16, ‘Reports to Prevent Future Deaths’, §44 (1 Jan 2025)
[3] Grenfell Tower Phase 2 Report §9.40
[4] Grenfell Tower Phase 2 Report §10.26
[5] Grenfell Tower Phase 2 Report §113.40
[6] HL Paper 9 (16 September 2024) ‘Public inquiries: Enhancing public trust’.