Inquest blog series – Disclosure to the Coroner: best done half fast…

This is the second article in our new inquest blog series.

Members of our inquest and inquiries team will be posting blogs to provide what we hope is helpful guidance and insight on common issues arising. 

Getting it right really matters

If you are acting for a public or private organisation in an Inquest the first thing you will need to assist your client with is disclosure. It is stating the obvious, but getting disclosure right really matters. Incomplete and late disclosure will damage your client’s relationship with the Coroner and Interested Persons and can completely de-rail the Inquest proceedings – causing everyone, including your own witnesses, huge inconvenience and distress. It can also result in negative reporting, and in some cases form the basis for an aggravated damages claim in future civil proceedings.

It is common for organisations to provide disclosure to the Coroner before a formal decision is made on Interested Person status, and a Coroner’s powers to compel disclosure (contained in Schedule 5 of the Coroners and Justice Act 2009) can be exercised in respect of any person, regardless of Interested Person status.

A two-stage process

Disclosure in coronial proceedings is a two-stage process. The first stage is disclosure to the Coroner. The second stage is for the Coroner to assess the material provided and provide onward disclosure to Interested Persons of material relevant to the issues identified as being within the scope of the Inquest. The thoughts that follow are focused on the first stage of disclosure. Second stage disclosure to Interested Persons can raise interesting and difficult legal issues in some cases. Suffice to note for the purposes of this post, organisations will be in a better position to understand and, if need be, argue, those issues if they have done the first phase of disclosure well – marshalled the relevant material, identified potential sensitivities and categories of redactions, identified categories of material that are missing for any reason, communicated well with the Coroner and, ever so importantly, provided it when they said they would.

Define your disclosure strategy

It is important to come up with a disclosure strategy at the outset of a case. This should usually entail ensuring the people who know what potentially relevant material exists are identified and asked to provide access to the material they are aware of. In more complex cases the initial scoping might also involve electronic searches being conducted across mailboxes and file storage systems on key words or names. In less complex cases this may not be proportionate or necessary. It is helpful to seek input from lawyers who have worked on similar cases previously as well, who may be able to assist with categories of material that may exist and be relevant and advise on what is and isn’t proportionate.

If there is a lot of material consider agreeing an iterative approach with the Coroner so material can be reviewed and processed in stages.

Identify any gaps

Where there have been internal or external investigations, such as serious case reviews, multi-agency reviews, IOPC investigations and ombudsman investigations the leg work on disclosure has often been done before disclosure in the Inquest proceedings is required. However, it is really important that organisations don’t simply rely on the work that other investigations have done in providing their disclosure. Those investigations are conducted for different purposes to the statutory purposes of an Inquest. They may have investigated narrower issues than those the Inquest will consider, or may have looked more broadly and generally at issues that will be in sharper focus at the Inquest. They are also conducted without the threat of the power to compel material. The material obtained by the earlier investigations is undoubtedly a starting point, but it needs to be scrutinised carefully as there will almost invariably be gaps.

Keep it under review

As within any proceedings, disclosure must be kept under review. Material that did not seem relevant at the outset, may become so as the evidence is gathered. For example, the disciplinary records of a witness may not have appeared relevant until that witness is alleged to have said or done something that engages similar issues to those raised in a previous disciplinary investigation, or when you meet with witnesses new documents may materialise .

As the issues in the case become clear, policies and training documents that go to those issues need to be identified. This can be difficult if the death occurred some time ago, but as far as possible the correct policy documents should be found so that factual and expert witnesses have the correct information at the point of preparing statements and reports.

Consider informal communications

Early consideration should be given to informal communications such as WhatsApp and other messaging platforms as well as emails. It won’t be necessary in all cases, but increasingly witnesses can expect to be asked if they communicated about the matter with colleagues on these platforms and to provide disclosure of the contents. Exchanges after the death may also be relevant if they contain reflections on what occurred. Check the organisation’s policy on retention of such information and ensure potential witnesses are advised not to delete anything before it has been obtained and reviewed.  Disclosure of this sort of content raises a number of considerations, including relevance, content covered by the DPA 2018 and confidentiality and it might be necessary to request a Schedule 5 notice to provide the witness with the protection of having disclosed the material pursuant to a court order.

Sensitive information

All organisations should keep sensitivity in mind at the point of providing disclosure. Policies and documents may include sensitive information such as the location of security cameras, building layouts, searching policies or commercially sensitive information. Absent any national security content any such material must still be disclosed to the Coroner if it is relevant, but it is helpful to flag the sensitivities (and sometimes to propose redactions, gists or alternative ways of adducing the relevant material) at the point of disclosure.

Keep a clear audit trail

Always keep a clear audit trail of the disclosure searches that have been commissioned and the product of those searches. Whilst disclosure statements are not generally requested in Inquests, they can be, and even if they are not it is important for the legal team to be clear as to how the process has been conducted. Where the disclosure process has been complex, there have been multiple disclosure phases and / or decisions as to a reasonable and proportionate approach have been taken (such as a date range, search terms, not searching emails of certain individuals etc) it is advisable to create something akin to a disclosure statement for internal purposes at least. It can, if appropriate, then be provided to the Coroner but at the very least will assist the legal team with understanding how a document was missed if an issue arises.

To sum it up, good disclosure takes time, but often you won’t have all that much of it. So grasp the nettle early and keep track of it.

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Authors

Cicely Hayward

Call 2009

Related areas

Inquests

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