Inquest blog series – Tips for witnesses at Inquest hearings

Most witnesses will never have attended a Coroner’s Court before. Some may never have given evidence in any Court before. How could you help put them at ease and prepare them (without coaching them)? Here is an insight into how I might go about this:

1. What are we doing here?

Many witnesses will be confused or apprehensive about why they have been warned as a witness in a Coroner’s Court. They may have heard stories about colleagues who have received prolonged grillings from barristers who specialise in crime, in ultra-adversarial and emotionally charged hearings. They may feel ‘hung out to dry’ by having to justify their decisions, taken in often difficult, dynamic and spontaneous circumstances, managing all sorts of risks to many people, while under pressure of resources and without the full picture that emerges from 20/20 hindsight.

While it would be inappropriate to pretend that Inquests are always smooth sailing, some reassurance can be given by providing the witness with a plain English explanation of what an Inquest is and the purpose of the Inquest:

• As we live in a democratic society where we do not expect our doctors or nurses routinely to poison patients nor our police officers to shoot random members of the public for no reason, constitutionally we have checks and balances to ensure that the individual is safe from and properly safeguarded by the state. These include criminal prosecutions, civil claims for compensation, ombudsman investigations (e.g., the work of the Independent Office for Police Conduct), internal disciplinary proceedings, public complaints processes, and no doubt others. The Inquest is one such check and balance.

• It is, in summary, an investigation into a violent, unnatural, unexplained, or unexpected death – or indeed a death of someone in state detention (whether that means prison, in a police cell, a psychiatric in-patient under section, or otherwise).

• Crucially, it is not a trial. There is no prosecution, no defence, no claimant, no defendant, no claim, and (in theory) no blame. There are no sides or parties, but there are Interested Persons whose role is to help the Coroner get to the truth and find the facts in a non-adversarial way. The Coroner is a judge, but it is perhaps better to understand the Coroner as a chief investigator.

• The Inquest is required in law to answer the four statutory questions – who, where, when and how did the deceased come by their death, to decide upon the medical cause of death, and to give a conclusion.

• In most cases, ‘how’ means ‘by what means’: the mechanism of death – e.g., drowning, road traffic collision, falling off a building, excessive dose of medication, etc. This can however include consideration of whether there was any unnatural (i.e., human) contribution to a death. This is where the metaphorical line that there is no blame in an inquest can become blurred. It is better to be honest about this with witnesses; but one can do so while making clear that the Coroner (in most cases) will not be especially interested in pointing fingers. The Coroner’s Court is by law not allowed to give a conclusion that appears to determine criminal or civil liability on the part of a named person.

• Sometimes, such as where there is a concern that the state knew or should have known about, but didn’t do all it should have done to avoid, a real and immediate risk to the deceased’s life, ‘how’ also includes the ‘circumstances’ of the death. In practice this makes little difference to ‘how’; as the Inquest will usually explore the circumstances anyway, if only to ensure nothing important is missed. The actual practical difference is that, in these sorts of cases, the conclusion may include judgemental language criticising actions or omissions, but not naming individuals (it could identify an individual by their job title, for example, ‘the custody sergeant’).

• The law was changed in 2009 to make ‘conclusion’ the right word. Precisely because the word ‘verdict’, which was previously used, was associated with criminal or civil trials.

• While the Coroner’s agenda will be simply to get to the facts, without the gloss, bluster or spin of an adversarial system, the bereaved family – who are properly at the heart of the Inquest process – have obviously lost a loved one and will often have their own questions or concerns. As part of the grieving process, they understandably may be looking for answers or even someone to blame. They are unlikely to have had access to all the information and so they may have filled in gaps with their own speculation, sometimes even conspiracy theories. Sometimes they will entirely justifiably feel aggrieved at their loved one having been let down by others. Sometimes they will want to do what they can to ensure no-one else in the future dies in similar circumstances.

• The Coroner has a duty to write a report if – in plain English – lessons have not yet been learned about problems in systems that could lead to a continuing risk of future deaths. However, any ‘lessons learned’ points are (usually) a matter for a senior colleague giving the corporate overview and update evidence at the end of the Inquest, rather than something for individual witnesses to worry about. But that is why there may sometimes be questions about matters after the deceased’s death.

• Part of the point of an Inquest is, where appropriate, to allay suspicions or concerns about bad practice. Hopefully, at the end of the process, the family, the Coroner, and the public (if the media permit and report fairly) will be reassured.

2. What impact does that understanding of the point of an Inquest have on advice for giving evidence?

The key to giving evidence in an Inquest is that it should be about explaining.

In an Inquest, the contents of the comic-book ‘thought bubbles’ above the head of the characters in the story – or, to use an alternative analogy, the calculations and working shown in the course of seeking to solve a maths problem question – are usually more important than the actual decision or answer. We already know there has been a sad outcome; the Inquest is there to shine a light and allow for a better view of the process.

It is no good to adopt the defensive mindset familiar to many involved in criminal or disciplinary proceedings of simply answering ‘yes’ or ‘no’, in the hope of not giving anything away nor opening oneself up for criticism. ‘Yes’ or ‘No’ answers in fact leave one potentially vulnerable to being led according to the agenda of the person asking the leading question.

The aim should be for the witness to present themselves as an informed and reasonable professional, who knew what they were doing. This is best done by breaking down any decisions or omissions in a structured way, rather like in the Police’s National Decision-making Model: What information did I have? What legal powers did I have? What options were open to me? What did I choose and why? What did I do to put that choice into practice? What reflection did I make after I acted (or did not act)? Although these decisions are often made in a split-second, the witness evidence in the Inquest should ideally break down systematically and explain each stage in the witness’s decision-making process.

The witness should give any necessary context, to explain (politely and calmly) why a question may not be fair or reasonable, or to challenge the premise of a question where that is needed.

This sort of careful explanation, and the explanation of any context, is not really possible within a short ‘yes’ or ‘no’ answer.

On the other hand, a common-sense balance is required: if the witness is giving 10 minute speeches in response to each question, they are probably not answering the question.

‘I don’t know’ or ‘I don’t remember’ are acceptable answers. It is crucial not to ‘make it up’ or guess. However, the caveat to this is that to use ‘I don’t remember’ as some sort of protective shield does not help. There are some questions where they may be expected to remember the answer: e.g., “Why did you arrest Mr X?” or “Why didn’t you detain Ms Y under section 136 of the Mental Health Act?” (make sure you use examples that are unrelated to the present Inquest).

The witness should be wary of the risks of being a little too helpful: one example of this is the dangers in ‘making it up’ or speculating where the witness does not know, or second-guessing, either outside their knowledge or expertise or the decision-making of another individual – they probably should decline to answer that sort of question directly. Better to give an answer along the lines of “the policy says…” or “what I always do in this situation is…”

Another example of being too helpful: there is a natural human tendency, for some, in times of pressure or stress and particularly in front of a Jury, to wish to come across as an agreeable or likeable person. This can and often does lead to witnesses being too quick to reply ‘yes’ or ‘potentially’ unnecessarily. Simply agreeing with the scary and clever barrister is not going to make the experience any easier, no matter how reasonable what they suggest may sound. It is vital to think about the answer and to take time before responding. It does not help anyone to give unnecessary concessions under questioning. The classic example of this is a question along the lines: “Mr Bloggs, this is no criticism of you whatsoever. Of course you entirely understandably didn’t take [a particular action], because you didn’t know about [a piece of information]. But surely you agree that you would have done [the particular action] if you had that piece of information?” It is too easy to say ‘Oh, now you mention it, possibly yes.’ Questions like that are designed such that one could literally always say ‘possibly’ in a banal sense. Sometimes that will not be an answer that will do justice to the reality of the situation, the context, what actually happens in practice, or even the relevant policy.

The latter generic example is also an example of the danger of hypothetical questions. These are allowed (within reason) and in some Inquests may be necessary. While sometimes a witness can decline to answer a hypothetical question on the basis that they are there to explain what did and didn’t happen in the actual case, not to speculate about alternative parallel universes, sometimes the hypothetical question will need to be answered. The witness should consider how to answer a hypothetical question with great care.

3. Practical points about giving evidence

The witness should have the order of questioning explained to them and the fact that, unless there is the potential that another later witness may contradict their evidence on the same issue – in which case they might be re-called, the witness is usually released by the Coroner and free to leave (or to stay and watch) after their evidence is complete.

In most cases, the Coroner will also permit the witness to watch others’ evidence before they are called (unlike in criminal courts). Where this option is open, it is advisable for the witness (especially one hitherto unfamiliar with Coroner’s Courts) to watch some of proceedings before giving evidence: it helps them familiarise themselves with what is going on, who is who, what sort of questions are being asked (and what sort of answers are being given) – and it helps settle any nerves and lead to more confident evidence from a witness who is more at ease with the process.

Although no guarantees can be given, it is rarely the case that entirely new evidence arises from an Inquest that leads to individuals being in trouble afterwards. Usually the Inquest comes after any disciplinary process or internal or ombudsman / IOPC investigation: by then, professional decision-makers will have already taken a view on individuals’ conduct and it is rare for anything so incriminating to emerge that an individual witness would have to go through all of that all over again. What may conceivably follow, at likely worst, would be having to reprise their evidence in a civil court if a civil claim for compensation paid by the organisation is sought. All the more reason why there is usually no benefit in being defensive in giving evidence in the Coroner’s Court.

Everyone in the Court is a human being and expression of emotion, if for example one were to become moved or tearful, is natural and absolutely ok. If anything, if a witness shows that sort of emotion, it usually reflects the fact that they care and that they approach their interactions with humanity – better that than being a witness who appears blasé, arrogant and uncaring.

In keeping with the aspiration of presenting oneself as professional and respectful, smart (i.e., unscruffy) dress is advisable. Wearing uniform should be acceptable. In the case of police officers, while wearing the tunic suit would reflect the gold standard in terms of showing respect to the Court and the bereaved family, it is not essential (especially if it no longer fits). A business suit is absolutely acceptable.

The Coroner is to be referred to, as the case may be, as ‘Madam’ / ‘Ma’am’ or ‘Sir’.

While much of the above is perhaps ‘common sense’, witnesses usually do appreciate and are assisted by this sort of advice, delivered in plain English with minimal legal jargon. While experience shows that many witnesses nevertheless proceed to make the same mistakes that they were previously warned against, if some do not and are enabled to give better evidence, then that is certainly beneficial for the witness themselves, the organisation they represent, all other participants in the Inquest, and the public interest that the Inquest serves.

---

Authors

Peter Taheri

Call 2007

Related areas

Inquests

---

Police Law

---