On September 13, 2021, the Bar Standards Board (BSB), the CILEx Regulation and the Solicitors Regulation Authority (SRA) together published the “Competencies for Counsel Practicing in Coroners Courts”.
The document, which was published ‘to improve pleading standards in coroner’s proceedings‘, specifies the different skills that these three bodies now expect from the investigating lawyers.
Here, Daniel Machover, Head of Civil Litigation at Hickman & Rose i) briefly explains these skills; ii) discusses the key competency regarding dealing with bereaved families; and iii) consider the relationship of skills to the duty of candor, in light of their goal of improving the standards of inquisitorial advocacy.
Skills
The key skills relate to:
- deal effectively with vulnerable parties;
- tailor communication and engagement to the purpose of the investigations and the situation of the people involved;
- maintain current knowledge and understanding of coroneral law and practice and apply it effectively; and
- be aware of the support offered by other organizations and work with them as appropriate.
Next to the competences, all regulators published a ‘toolbox‘ resources to help ‘understand the standards expected when practicing surveys‘, which includes helpful videos from practitioners and the Chief Coroner.
Practitioners should have these skills in mind and be prepared to remind others of them when appropriate.
Treatment of bereaved families
In the Chief Coroner’s video, he and others point out that keeping the bereaved at the heart of the process has a meaning attached to it: ‘so that they have confidence that the investigation will get to the facts about what happened and that they feel properly involved and listened to throughout the process‘.
Above all, all investigative lawyers must remember – and explain to their clients – that an investigation is not a means of apportioning blame, much less a form of litigation, but a very focused and necessarily limited investigation into four questions: who was the deceased, and when, where and by what means the deceased came by his death. As a result, ‘while firm and robust questioning may sometimes be necessary, an aggressive and hostile style of questioning is not appropriate‘ (skill 3.2).
Such interrogations can be extremely damaging to bereaved families, contributing to the distress of an already unbearable situation, and are entirely inappropriate in the context of legal proceedings.
Franchise duty and public bodies
While these skills are welcome in themselves, achieving the Chief Coroner’s intended outcome requires a fully integrated “duty of candor” applicable to all public bodies (and private organizations performing public functions) as a result of death or serious incident. For a number of years, INQUEST has campaigned for such an obligation to be enshrined in law under a Public Authority Accountability Act (or ‘Hillsborough Act’).
In May 2021, the report of the House of Commons Justice Select Committee on the Coroner’s Service included a recommendation to this effect (see paragraph 81 of section 3′Bringing the bereaved to the heat of the coroner’s service’). While this suggestion is long overdue, it is unfortunate that the Justice Committee appeared to frame the expansion of the duty of candor only”to investigations‘, whereas it is clearly necessary that the obligation arise on the date of death (or of the serious incident). This concern has also surfaced in several public inquiries, such as the Grenfell Tower Inquiry, where survivors and bereaved families have stressed that candor, thoroughness and transparency – from the date of the fire – are necessary to promote accountability and counter the institutional defensiveness of public bodies (see for example in phase 2: observations in January 2020 in response to the Attorney General’s request for engagement here; and opening module 6 in December 2021, especially Inquiry Counsel on page 11 here).
On September 10, 2021, the government published its response to the justice committee’s recommendation (see section 10). This response refers to the Charter for Families Bereaved by Public Tragedy proposed by Bishop James Jones, which contains a commitment by public agencies to approach investigations with candor and honesty, with full disclosure of relevant documents, materials and facts in the search. of the truth and learning from past mistakes. The response also indicates that the government ‘undertakes to respond‘to report but needs to offer’families the opportunity to share their views before he releases his full response‘.
Hopefully this process will be expedited, but in the meantime anyone implementing the new powers will want to keep in mind the final point raised by the government in its response to the Justice Committee:
‘The protocol for attorneys who represent departments where they have interested person status at inquests in the “Coroner’s Guide to Bereavement Services” includes the principle that such attorneys will approach the inquest with openness and honesty. While the protocol only applies to government services, its use is recommended for public bodies more broadly..’
