Friday, 6 May 2016

Let's Be Honest: Inquests often are Adversarial


I, and many readers of this blog, will have been involved in Coroners' Inquests arising out of the death of an individual who has died whilst in the care of a prison, a care home, the police, a hospital or some other institution.

Public funding for legal representation for bereaved families at Inquests is only very rarely granted yet it is exceptional for a public body or other "interested party" not to appear by a lawyer. No problem, says the government, Inquests are inquisitorial not adversarial and Coroners will ask all the questions the families need to be answered.

In the course of writing this post I noticed that the formidable Obiter J had beaten me to it in his excellent post The Coroners Court - a system that cannot remain unreformed. There is no need to cover the same ground but I do want to add to the debate my own experience of representing interested parties at Inquests.


Different Ideas of The Truth 


If we are honest, such Inquests are rarely regarded by the interested parties and their lawyers as anything other than adversarial. They are not neutral participants. Very often the bereaved family and the institution that cared for the deceased will have strongly opposing views as to the findings and verdicts the Coroner should reach. They will have their own agendas. It is not, you have to believe, that they want to do anything other than help the Coroner to get to the truth, it is just that they will have different ideas of what the truth is.

Hillsborough


In the aftermath of the Hillsborough Inquest verdicts Andy Burnham MP told the House of Commons, "Millions of pounds of public money were spent re-telling discredited lies. Lawyers for retired officers threw disgusting slurs; those for today's force tried to establish that others were responsible for the opening of the gate. If the police had chosen to maintain its apology, this Inquest would have been much shorter. But they didn't and they put the families through hell once again.It pains me to say that the NHS, through the Yorkshire Ambulance Service, was guilty of the same."

David Conn criticised the Coronial process in this challenging article in The Guardian.

I make no judgment about whether Messrs Burnham and Conn were right or wrong to criticise lawyers with briefs to represent interested parties at the Inquest, but I do recognise the description of a legal process that was adversarial in all but name. 

Interests to Pursue and to Protect


Parties at Inquests have interests to pursue and to protect. The way civil claims are funded, by no win no fee agreements, means that families will often only get legal representation at an Inquest if a lawyer thinks there may be a (successful) civil claim in the offing. Hence the family's lawyer wants to ensure that evidence emerges and findings are made that might support a subsequent civil claim. The family often want a particular body or person to be held responsible for the death. Whilst a Coroner may not make such a finding, he or she can make findings and reach conclusions that will go some way towards a later admission or finding of liability. 

Hospital Trusts, care homes and prisons have the interests of their employees as well as reputations and finances to protect. They participate in an Inquest aware of the impact of adverse publicity and possible future litigation.

Coroners do their best to avoid Inquests becoming too adversarial, but it is almost unavoidable in many cases. 

We need a legal process properly to investigate unexpected deaths, to answer questions for families and the community as a whole, to hold institutions and individuals to account and to ensure that lessons are learned to avoid repeated, fatal errors. The Coronial system may have the potential to deliver those goals. Perhaps they can be achieved through a more purely inquisitorial system, properly resourced. Perhaps a more openly adversarial system would better do so. But as it stands the Coronial system lacks focus. Partly because of its relationship to the wider civil justice system, its claims to be inquisitorial do not ring true. 

Let's be honest and admit that when it comes to Inquests involving public bodies or other institutions, the present Coronial system is in effect adversarial. As such families are wholly disadvantaged by the restrictions on public funding for representation.
 

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