Martin Partington: Spotlight on the Justice System

On 24 August 2020, JUSTICE, the Human Rights Group published an important report on the principles that should be applied when establishing public inquiries when some catastrophic event has occurred.

At present, a tragic incident may result in a range of concurrent legal processes: criminal investigations, disciplinary hearings and civil claims may be initiated that share identical subject matter with an inquiry, inquest or both. These overlapping processes can be confusing for those involved: at worst, layers of legal duplication can fuel the pain of loss. From the perspective of those caught up in the aftermath of the disaster – including victims, witnesses and alleged wrongdoers – the process can be agonisingly protracted. Further, survivors and their families often speak of alienation, mistreatment and whitewashing by the very bodies set up to identify the wrongs they have suffered. Their accounts suggest that inquest and inquiry processes are often highly adversarial and potentially retraumatising. And those with the most at stake may understandably fear that nothing will change once the processes conclude.

A Working Party of JUSTICE, chaired by Sir Robert Owen, asked whether there were ways to overcome these perceived deficiences. It considered:

• timely justice: how elements of current fact-finding processes and investigation might be integrated to reduce duplication and delay;
• transparency and responsibility: how investigations, inquiries and inquests can be better coordinated to embed best practice, promote certainty and ensure inclusion of bereaved people and survivors; and
• fairer outcomes: how inquiry hearings can be improved with regard to procedures, evidence and effective participation.

The report made 54 recommendations under the following broad heads:

• The framework – They recommended new State and independent bodies to provide oversight and facilitate information-sharing – a Central Inquiries Unit within Government, a full-time Chief Coroner and a special procedure inquest for investigating mass fatalities as well as single deaths linked by systemic failure, able to consider closed material and make specific recommendations to prevent recurrence.
• Opening investigations – Greater collaboration between agencies, in order to build a cross-process dossier, which would reduce the multiple occasions that bereaved people and survivors have to recount traumatic events and ensure that they are fully informed throughout the process.
• Procedure – Processes for appointing inquiry chairs and panels, for establishing the terms of reference and for providing information and relevant documents to core participants need to be more structured and transparent. Drawing on previous JUSTICE working parties on accessibility, we recommend that bereaved people and survivors are placed at the heart of the process – in choice of hearing space; improved communication and questioning by professionals and signposting to support services. Aside from the legal formalities, the report also called for widespread use of commemorative “pen portraits” and therapeutic spaces for bereaved and survivor testimony.
• A statutory duty of candour, including a rebuttable requirement for position statements, which would help foster a “cards on the table” approach. Directing the inquiry to the most important matters early on could result in earlier findings and reduced costs.
• Accountability and systemic change – An independent body should lead oversight and monitoring of the implementation of inquest and inquiry recommendations, whose review could aid scrutiny by parliamentary committees.

Source: Adapted from https://justice.org.uk/our-work/system-wide-reform/when-things-go-wrong/