INQUESTS & PUBLIC INQUIRIES: An Introduction

Practice in public inquiries and inquests looks set to continue as a field of increasing importance for both specialist firms and barristers alike throughout 2024. With more than a dozen public inquiries either getting underway, continuing, or drawing to a close, the government’s “go-to” answer for addressing issues of great public concern – whether recent or historical - will continue into 2024 and beyond.

The increasing number of prolonged public inquiries highlights the ever-expanding role of inquiries in public life and the popularity they seem to have with the public. Expected (or, at least, hoped) to conclude in 2024 are the Infected Blood Inquiry, the Grenfell Tower Inquiry, and Phase 4 of 7 of the Post Office Horizon Inquiry. The Undercover Policing Inquiry is scheduled to commence the next tranche of hearings in spring 2024 and the COVID-19 Inquiry is now well underway – the latter attracting significant press attention, with at least three years expected to elapse before its conclusion. 2023 also saw the announcement of the Essex Mental Health Public Inquiry into the deaths of inpatients in mental health facilities between 2000–20 and the commencement of the hearings in the Independent Inquiry Relating to Afghanistan. In October 2023 the public inquiry into the crimes of Lucy Letby announced the list of questions it will consider and it seems the NHS are likely to be the subject of further scrutiny in relation to other neonatal deaths in hearings yet to commence. Certainly, the government’s attraction to statutory and judge-led inquiries shows no signs of slowing down at present.

Although inquiry work can undoubtedly represent a significant growth area for any firm or barrister’s practice, the increasing length and complexity of inquiries can also represent a challenge. Whether instructed for individuals, bereaved families, corporate bodies, or for the inquiry team, timetables for disclosure mean that intensive resources need to be committed from an early stage and then potentially remain so in the long term. In some cases counsel or solicitors will find their engagement requires full-time commitment and a corresponding reduction of any other caseload.

Involvement in a public inquiry is likely represent an entirely new experience for many clients and, in the case of public or corporate bodies, their internal legal team may have limited expertise in the field and lack additional resource to handle the work. In the authors’ experience, whomever lawyers are representing, it is crucial at an early stage for a team to be assembled and relationships to be built that will – over what may be years – be able to stand the test of time. Inquest work is seeing a similar inexorable increase in terms of levels of complexity and hearing length.

This trend does not appear to have gone unnoticed by the Supreme Court, who – in a lengthy and very granular judgment in R (Maguire) v HM Senior Coroner for Blackpool and Fylde (2023) UKSC 20 – endeavoured to set down a marker as to which inquests truly engage the “enhanced procedural obligation” of Article 2 of the European Convention of Human Rights and which inquests may remain of a shorter and more straightforward type. Maguire concerned the inquest into the death of a vulnerable adult who died shortly after being admitted to hospital from the care home in which she lived. Numerous issues were raised before and at the inquest hearing concerning the standard of care she received and the decisions made in respect of her conveyance to hospital. The argument was made at the close of the inquest and at each appeal that there were arguable breaches of the deceased’s Article 2 rights and that the jury should have been given the opportunity to return a narrative conclusion with judgmental conclusions. At each stage, the arguments were unsuccessful.

In their detailed judgment, the Supreme Court took the opportunity to offer an analysis of all the relevant authorities, including the important recent decision in Morahan (2022) EWCA Civ 1410. Perhaps most significantly, it reminds the Coroner’s courts of the high bar that must be reached (particularly in healthcare cases such as it was) for Article 2 to be engaged. Further, Morahan contained the somewhat starkly worded reminder that “an inquest remains an inquisitorial and relatively summary process. It is not a surrogate public inquiry. The range of coroners' cases that have come before the High Court and Court of Appeal in recent years indicate that those features are being lost in some instances…”.

The two decisions might provide certain clients with hope that potentially very detailed investigations would be somewhat foreshortened. Equally, these decisions might suggest to bereaved families that an in-depth investigation of crucial aspects of the evidence would entail an uphill struggle. However, it is worth remembering that, even though the decision as to whether or not an inquest is “Article 2” (and more wide-ranging) might provisionally be taken at the start, coroners will wisely and almost universally keep the matter under review to the very end of the inquest. This means that lawyers’ focus must always remain open to the bigger picture that the evidence reveals and their lines of investigation and areas of preparation must not be cut short prematurely. There is always scope for a coroner to change their mind based on what they hear, and clients and legal teams alike need to be ready for it.

To mark the tenth anniversary of the Coroners and Justice Act (a reform that was passed by Parliament in 2009 but not implemented until 2013), the Chief Coroner recently described how the system can still be regarded as a largely “forgotten service” that was beset by delays, under-resourcing and an inconsistent approach across the country. Practitioners in this area will recognise the picture painted by the Chief Coroner and are well used to calling upon the very specific skills that are required to navigate representing an interested party at an inquest. Jury inquests represent a tiny proportion of the inquests and investigations undertaken by coroners but, equally, represent the most significant area of practice for solicitors and the Bar alike. By way of example, each death in custody or work-related death requires a jury inquest, with the proceedings often acting as a prelude to a health and safety prosecution and the potential for a Prevention of Future Deaths report. Preparation for inquests is always challenging, with late disclosure, changes to witness lists and revision of court dates being necessary features of an underfunded service. Regardless of the nature of the interested party represented, the limited public resources that coroners have to hand – together with the invariably sensitive nature of the hearing being conducted – requires that those acting for clients at inquest harness a diverse skill set to deal with the challenges that are often as much practical and human as they are legal.