On September 15, The Royal Gazette reported that David Burt welcomed suggestions from Scott Pearman, of the One Bermuda Alliance, that the legislation which governs coroner’s inquests be improved. While I think that the Premier and Mr Pearman should be commended for this effort, as a practitioner of coroners law, there are a few observations that I wish to share to inform future debate on this issue.

The first thing to understand about the office of the coroner is that it is a creature of statute. This means that a coroner may act only in accordance with the powers afforded to them by the legislation that creates the office of the coroner.

Bermuda’s Coroners Act was first passed in 1938 and has since been amended 23 times. The last time the Coroners Act was amended was in 1999. When our legislation was first passed, the coroner’s role was that of the Crown’s special investigator, overseeing an inquisitorial court that served various functions including that of a type of grand jury that determined whether suspicious deaths should give rise to charges of murder. Since the passage of the Coroners Act 1938, however, the role of the coroner has evolved into that of a sitting magistrate, acting as a judicial investigative officer, whose mandate is to determine who the deceased was, as well as where, when and how the deceased died, without making findings of civil liability.

In 1999, the Coroners Act was amended so as to require a coroner to hold an inquest, before a jury, where a person died in prison, a senior training school, or a hospital providing treatment for persons suffering from a mental disorder. The problem with the 1999 amendment was that it appeared to remove the jurisdiction of a coroner to hold an inquest into the death of a person who died in suspicious circumstances outside of state custody.

I actually sought judicial review of whether the coroner had jurisdiction to investigate deaths that occurred outside of state custody in 2014. In that application, I argued that the 1999 amendment has the effect of limiting the jurisdiction of the coroner solely to instances where the deceased died in prison, senior training schools or in a mental hospital. Justice Stephen Hellman rejected my submissions in a controversial ruling which held that the jurisdiction of a coroner to hold an inquest into deaths occurring outside of state custody was implied by the Coroners Act and thereby remained intact.

That ruling, while not appealed, has created problems, as the Coroners Act 1938 and Coroners Rules 2000 offer little guidance as to how a coroner’s inquest, regarding the death of an individual that occurred outside of state custody, is to be conducted. As Bermuda’s Coroner’s Court is a statutory court, this gap has led to a practice where Bermuda’s coroners will look to English case law for guidance where our own legislation is silent. While the English case law is useful, it is based entirely on English statutes and regulations that have no force of law in Bermuda. For that reason, the 2014 ruling only allowed the ad hoc manner in which our coroner’s inquests are conducted to continue, rather than spurring much needed legislative reform. As a result of this state of affairs, Bermuda’s coroners have exercised considerable discretion as to when to convene an inquest.

Having said this, I am of the firm view that the Coroner’s Court plays an important role within Bermudian society. Section 2 of our constitution guarantees the right to life. For that reason, when an individual dies in state custody, the coroner’s inquest is the legal mechanism that requires the state to hold a public inquiry into the role that the state may have had in the death of that individual. When it comes to the deaths of those who died outside of state custody, however, our existing legislation is not fit for its purpose. For that reason, clear further legislative reform is required so that grieving loved ones will understand when a coroner’s inquest should be held and where one is not required, as a matter of law.

As for what the new coroners legislation should look like, I recommend that we adopt that which is in force in Britain. The reason for this is simple. As Bermuda’s coroners rely on British case law in any event, it stands to reason that we should adopt the legislation that underpins that jurisprudence. This will allow for consistency and also provide Bermudian coroners with a wealth of jurisprudential guidance on legislation that is identical to our own.

While the office of the coroner has evolved through time, it is past time that we provide grieving families with the certainty of knowing whether an inquest should be held when a loved one passes.

• Allan Doughty is senior counsel with Kennedys who practises coroners law