When a politician tries to control what a law court can say or do, it’s always a reason to get suspicious. Des Browne, the Defence Secretary, has recently taken legal action to prevent coroners’ courts using language that he thinks is unduly critical of the Ministry of Defence (MoD).

In judicial review proceedings, Browne has asked the High Court to stop coroners in military death cases from saying that there were “serious failures” in any MoD systems. This arises from an inquest into the death of the Territorial Army soldier Jason Smith, who died of heatstroke in Iraq.

In 2006, a coroner in Oxford recorded an inquest verdict that Private Smith's death was caused by “a serious failure to recognise and take appropriate steps to address the difficulty that he had in adjusting to the climate". The 32-year-old soldier fell ill in temperatures of 60C (140F) in August 2003 at the Al Amara stadium in southern Iraq.

The Government argues that the coroner shouldn’t have made reference to a "serious failure" to take appropriate steps. It says that the use of the phrase could be seen as deciding civil liability for Private Smith's death. Under Rule 42 of the 1984 Coroners' Rules that isn’t allowed at an inquest.

The problem here is a conflict between the need to let the coroner be a courageous crusader for the truth and the need to prevent an inquest making decisions that are only appropriate for a criminal or civil court.

The purpose of the inquest, according to rule 36 of the Coroners Rules 1984, is to determine who the deceased was, and “how, when and where the deceased came by his death”. That purpose is paramount. Rule 42 says, though, that no verdict can be framed in such a way as to “appear to determine” any question of criminal liability on the part of a named person, or any matter of civil liability.

Rule 42 is a sensible rule. The coroner’s court isn’t, after all, a partisan forum in which one side sues another or in which the state prosecutes anyone. It’s a court whose purpose is to get to the truth of how deaths occurred. So rule 42 means the verdict can’t say things like “John Smith was killed when Sara Jones murdered him”, or “Sarah Green was killed as the result of negligence”. Those would be, respectively, for a criminal and civil court to decide.

But there are limits to the way rule 42 works. The coroner’s court isn’t prevented from finding that there was murder or manslaughter, but only prevented from making such a finding against a named person. The inquest verdict of “unlawful killing” is a perfectly proper one, and is returned regularly all over the country. In many “unlawfully killed” cases it will be quite obvious who is incriminated, as when there were only two people involved in a fight in a house or pub.

Coroners are more restricted when it comes to matters of civil liability. It’s not just that they’re prevented (as with crimes) from naming anyone as liable, it is that they can’t give any verdict that “appears to determine” civil liability.

The MoD says the Private Smith case is about a point of law, not the Government being “defensive about criticisms”. It said it was about “challenging the language” of the narrative verdict in Private Smith’s case.

But the words “serious failure” don’t, as the Government contends, attribute blame or appear to determine civil liability. The coroner’s words don’t mean the same thing as “culpable failure”. The words “serious failure” just measure the level of breakdown.

In no circumstances should coroners be restricted from identifying a “serious failure” in any system implicated in a death. Least of all should coroners be muted where the state was a relevant party to a death — such as where a soldier, working for the Government and subject to its conditions, dies in service. To maintain a healthy democracy, there’s a special need for scrutiny of any death in which the apparatus of the state was involved. This applies to deaths in prisons, deaths in police custody, and deaths, like those of a soldier, whereby the deceased had been acting in perilous situations on behalf of the state.

Coroners’ courts are an ancient part of the English legal system, dating back to the 12th century. The coroner has, since the 19th century, been known as “the people’s judge” — with the population behind him, and facing the state, he is the protection against any inaccurate or misleading being said about how people died. To do the job professionally, the coroner must discover the truth about a death, and must conduct an investigation fully, fairly, and fearlessly. When a coroner writes a verdict, it’s undesirable and sinister to have a Government minister looking over his shoulder.

It’s the coroner’s task as the people’s judge to say what happened. And it’s an act of arrant insolence for the minister to meddle in the process.

Professor Gary Slapper is Director of the Centre for Law at The Open University

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