Whilst representing bereaved families in Inquests I often repeat the phrase that Inquests are non-adversarial - but what does that actually mean and is it even true?
Nobody wins or loses in an Inquest?
An Inquest is only about establishing the circumstances of a death and does not seek to attribute blame, only cause of death, so there is never going to be a 'winner'. However, the cheers from those watching the jury deliver their conclusions in the Hillsborough Inquest were evidence of the power of the truth coming out. Often, an Inquest is the only arena at which the details of how their loved one died can be established so when the truth has been concealed or has been difficult to establish, securing factual findings that other parties have denied means that the Conclusion (new term for a Verdict) of an Inquest can feel very much like a win.
The Coroner cannot and must not determine criminal or civil liability. (Fact)
This is difficult to explain to someone without knowledge and experience of the nuances of our laws. In a nutshell, an Inquest may lead to a Conclusion that the deceased was unlawfully killed or that the death was caused or contributed to by neglect, yet this is not the same in legal terms as finding there was negligence, that a criminal offence has been committed or human rights have been violated.
However, if another party has denied any responsibility for a death, securing a Conclusion (new term for verdict) of neglect for example can also often feel like a win, especially where there has been challenged or opposing evidence in relation to the circumstances of the death.
The Inquest process is an investigation by the Coroner (and it is not for the parties to 'make their case'?)
One of the four questions a Coroner must establish is 'how' someone died, and to do this they will conduct an investigation. This includes obtaining disclosure of documents, requesting witness statements and questioning witnesses. How many documents/witnesses and which ones are obtained will depend on the scope of the Inquest.
Coroners may decide an Inquest will only look at the question of 'how' in a narrow sense or, often with the help of persuasion by lawyers for the family, they may decide the Inquest needs to investigate not just how a death occurred but also the wider circumstances.
The difference can be very little or very material and can affect the chances of legal aid being granted. So what the Coroner decides and the approach taken to the investigation can be contentious, lead to opposing legal submissions being made and hence make the process seem very adversarial (each party presenting their evidence and making their case).
So it seems to me describing the Inquest process as non-adversarial and saying 'there are no winners or losers' is not an accurate reflection of how families, and their supporters and lawyers, feel at the end of an Inquest.
I often assist families to persuade Coroners to open an Inquest in circumstances where the Coroner has decided one is not necessary due to the death being due to natural causes so this feeling can arise from the very beginning. This happened in relation to the death of Eileen Smith, a woman with a learning disability whose death was eventually found by the Coroner to have been due to “gross failures” by nursing staff at the Lister Hospital in Stevenage1.
I've seen several people suggest publicly and privately that the involvement of lawyers can add to the feeling that an Inquest is adversarial, or even that lawyers themselves create an adversarial atmosphere.
I can understand this view to an extent - isn't recourse to lawyers usually a step taken because there is a dispute?
Lawyers do of course provide advice and assistance all the time in non-adversarial matters - wills, buying and selling a house etc. So I disagree that the presence of lawyers and having legal representation makes a process adversarial - My view is that it is the existence of a dispute in whatever form, usually was the death preventable or avoidable, that makes a process adversarial.
It should also be remembered that Inquests are governed by a set of laws and regulations, and the Chief Coroner issues guidance that should be followed unless there is good reason not to.
The PIR, pre-inquest review, hearing (or hearings - the most I've experienced is 4) and the Inquest hearing (which could last 1 day or weeks & weeks) all take place in a Court, which brings with it a whole other set of legal issues, especially if the Coroner is sitting with a jury.
The law of contempt, for example, which affects what can and what should not be said publicly while Court proceedings are ongoing, may apply to an Inquest.
Add into the mix other participants in the Inquest having legal representation, and the likely inequality in ability to pay for legal costs, and the prospect of disputes and ill feelings seem obvious. The Inquest process in turn can easily start to feel close to a battle - and considerably more akin to the adversarial nature of civil and criminal proceedings. Reading the amazing blog of Sara Ryan2, Connor Sparrowhawk’s mum, should be obligatory for those who think using the term ‘battle’ is an exaggeration.
In my view, if Inquests are to be non-adversarial then there needs to be a more level playing field. Expecting bereaved family members to make legally sound representations and requests without equal access to legal advice, and to question witnesses in Court in relation to how their loved one died, will usually be an insurmountable challenge for people who may never have experienced an Inquest before, who are most likely non-qualified in legal matters and who are experiencing one of the most traumatic periods of their life, the detailed retelling of how a loved one died.
In the worst cases the Inquest process can cause further damage to a bereaved family and show little respect for the dead.
Bereaved families should not have to feel the Inquest process is a fight for the truth, and when faced with a denial of responsibility or lack of information, it seems clear bereaved families deserve to have equal access to legal advice and representation as those making those denials or withholding documents.
The answer could lie in better use of independent investigations in the complaints process to consider disputed issues or answer questions, or measures such as clearer explanations given about the availability of legal aid (which can be available on a non-means tested basis), or mandatory signposting to support organisations, such as the ‘punch way above their weight’ charity Inquest3.
These measures alone or all together could make a difference but a greater willingness to try to do things better, to improve the system, or even to do better things such as look afresh with the benefit of hindsight from a terrible tragedy, would in my view help give some truth to the idea that Inquests are non-adversarial.
After all, non-adversarial doesn't just mean that there is no "win-lose" outcome, but according to a Google search result it involves 'working together co-operatively' which I'm sure is what bereaved families deserve.