Hillsborough Law Bill - practical impact for inquest disclosure?

This Bill – officially called the Public Office (Accountability) Bill – will mean major changes for inquests and inquiries once it becomes law. See our previous article for the key takeaways.

As we edge closer towards the Hillsborough Law becoming a reality, we thought it would be useful to focus in on what it would mean for disclosure in coroners' inquests, which is an area likely to be significantly impacted by the changes.

Inquest disclosure - impact of the Hillsborough Law Bill

A central pillar of the Hillsborough Law Bill is the proposed introduction of a new, statutory "duty of candour and assistance" in relation to inquests (and also inquiries, but we are focusing for the purposes of this article on inquests).

This new duty of candour and assistance would be wide-reaching in terms of who it applies to - including public authorities (such as NHS bodies), individuals who work for public authorities (referred to in the legislation as "public officials"), private providers carrying out public functions, and also those with a "relevant public responsibility" in connection with the incident to which the inquest relates, which would include those with a "health and safety responsibility" and contractors.

Key elements of this new duty - and their likely practical impact for inquest disclosure - are as follows:

Overarching candour requirement

What does the Bill say?

The proposed new duty of candour and assistance includes a legal obligation on those caught by the legislation to act at all times "…with candour, transparency and frankness" in their dealings with inquests (Clause 2(1) of the Bill). 

Impact?

Although in practice the organisations/individuals involved in inquests should of course already be approaching them with openness and honesty - especially as evidence is given on oath/backed by statements of truth - there is no existing, general legal obligation to be candid/transparent/frank in relation to inquests, and this new provision will give some 'teeth' to that, especially given the Clause 5 criminal sanctions for failure to comply with the duty of candour and assistance (see more on sanctions later).

Proactive notification to coroner

What does the Bill say?

Under Clause 2(3) of the Bill, those caught by the duty must notify the coroner if they have grounds to believe that their acts are or may be relevant to the inquest or they otherwise have information "likely to be relevant" to the inquest. Such notification must be given to the coroner "as soon as reasonably practicable" after first becoming aware of the establishment of the inquest, but is subject to "any requirements or exceptions" specified in a notice published by the coroner.

Impact?

This is potentially a significant change in that it is a proactive duty to notify the coroner of information likely to be relevant to the inquest, whereas the current approach to disclosure can often be more reactive.

In practice, this proactive duty is likely to have most impact either where the coroner would not otherwise be aware of the involvement of a particular organisation/individual or where material is held which is "likely to be relevant" but the coroner is unaware of its existence. Whilst the question of whether something is "likely to be relevant' will to some extent be a matter of judgement, given the overarching duty to be candid in all dealings with inquests, public authorities will be expected to err on the side of caution and bring information to the coroner's attention if in doubt.

Nature/extent of assistance to be given further to directions

What does the Bill say?

Under Clause 2(4) of the Bill, on the giving of a direction by the coroner (referred to in the Bill as a "compliance direction"), there is an obligation to provide "all such assistance as they can reasonably give" to assist the inquest in meeting its objectives and, in particular, a requirement to:

• Disclose to the coroner information "likely to be relevant" to the inquest
• Draw attention to any information of "particular significance"
• Correct any errors or omissions in information previously provided
• Provide a position statement (in the case of a public authority) - although the coroner may dispense with this obligation
• Provide further information or clarification where requested by the coroner, so far as reasonably practicable

Connected with this, the Bill amends Schedule 5 of the Coroners and Justice Act 2009 (which deals with coroners' powers) to insert a new power to issue a "compliance direction" in relation to the obligations in Clause 2(4) above, to a public authority (or others caught by the legislation) where they are an interested person in the inquest. This does not limit the coroner’s ability to give further directions. Where the coroner has issued a compliance direction, they are also required to give a direction to the person the coroner considers to be the leader of the public authority or other relevant organisation (i.e. generally, the CEO), thereby placing a direct duty on that individual to ensure compliance.

Impact?

Currently, good practice focuses on those involved in inquests complying fully and within agreed timescales to information requests and other directions given by the coroner. The Bill, however, goes further by requiring public authorities and others caught by the legislation to give the coroner "all such assistance as they can reasonably give" which means having to actively engage by, for example, pointing out matters of particular significance and addressing any omissions in information provided previously. The new power for coroners to issue a compliance direction in relation to this element of the duty of candour and assistance adds further 'clout' to these provisions.

The provision about public authorities providing a "position statement" may prove more problematic in the context of inquests, which are by nature non-adversarial with no 'sides', making it difficult to see how setting out a 'position' would work, especially as this may arguably breach Rule 27 of the Coroners (Inquests) Rules 2013, which states that no person may address the coroner or the jury as to the facts of who the deceased was and how, when and where the deceased came by his or her death. It is therefore possible that coroners will choose to exercise their discretion to dispense with the position statement obligation, but we will have to wait to see what happens in practice.

Leadership responsibility

What does the Bill say?

Under Clause 2(5), the public official who is in charge of the authority (usually the Chief Executive, in the case of NHS organisations for example) must take all reasonable steps to secure that the authority complies with these obligations.

Impact?

Laying ultimate responsibility for compliance with this new duty at the door of the CEO (or equivalent position), with associated potential criminal liability, is likely to raise the stakes in terms of pressure on organisations and their staff to ensure they do the right thing in terms of adopting a fully candid approach to inquests and could make inquests a greater focus of board-level attention.

Timescales

What does the Bill say?

In complying with these obligations, those caught by the duty must act "expeditiously" (Clause 2(6)(a)).

Impact?

Although it is currently expected that information requests/other directions will be complied with within the timescales stipulated by coroners and organisations may be criticised in court for not doing so, there is no legal requirement to act "expeditiously", as would be the case under the Bill (although what constitutes "expeditiously" would be open to interpretation).

Putting openness ahead of reputation

What does the Bill say?

Public authorities and others caught by the legislation must also act "without favour to their own, or another person’s, position" (Clause 2(6)(b)).

Impact?

This express requirement to act without favouring one's own (or another person's) position is new, and puts the spotlight on the need to avoid reputation management getting in the way of full openness. This adds a further layer to the general obligation to be open/transparent.

Enforcement and penalties

What does the Bill say?

Clause 5 of the Bill would make it an offence to fail to comply with the duty of candour and assistance in respect of an inquest if the person/organisation involved intended that this failure would impede the inquest in reaching its objectives or - in the case of the specific assistance obligations in Clause 2(4) and the CEO's obligations in Clause 2(5) - were reckless as to this possibility. Penalties could include fine or imprisonment. 

Impact?

Usually in inquests, disclosure is provided voluntarily, without the need for compulsion. However, coroners can issue a notice under Schedule 5 of the Coroners and Justice Act 2009 requiring attendance of witnesses or production of documents, for example. Failing to comply with a Schedule 5 notice is a criminal offence. There are also a number of existing court-related offences which apply to inquests, such as perverting the course of justice - e.g. deliberately destroying evidence or coaching a witness to give a false account. However, the Bill's proposed new criminal offence of failing to comply with the duty of candour and assistance potentially goes much wider - e.g. general defensiveness/lack of cooperation with the coroner could potentially constitute the offence - although the requirement for there to be an intention to impede the inquest in reaching its objectives sets quite a high bar. Also, Schedule 3 of the Bill provides that prosecution for such an offence can only be brought with the consent of the Director of Public Prosecutions, which may limit the frequency with which it is used in practice.

What next?

Although there is not yet a specific timescale for the 'Hillsborough Law' to come into effect, the strength of the government's commitment to making these changes makes it very likely that they will happen, potentially sooner rather than later.

Marking a further step towards these proposals becoming a reality, the Ministry of Justice recently launched a consultation on the legal aid changes needed to implement the Hillsborough Law's proposed expansion of non-means-tested legal aid for all inquests where a public authority is an interested person. This 'parity of arms' provision also adds a further dimension to the changing landscape for inquest disclosure because the associated rise in the number of inquests where bereaved families are legally represented is likely to mean a greater-than-ever focus on the extent to which public authorities are complying with their disclosure obligations.