Page 13 - When Things Go Wrong

and the wider fact-finding inquisition may then proceed, unimpeded by
questions of prejudice and self-incrimination. Complex cases, however, are
rarely this straightforward. Where prosecutions fail, or where the political
pressure on government to respond swiftly is overwhelming, the inquest or
inquiry process may provide the initial (or possibly the only) means of
establishing the full facts. Despite the aim being one of neutral investigation,
there are competing interests, “bereaved and survivors will want [the inquiry]
to act as a stepping stone for prosecution; just as accused will want to pre-
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emptively defend their position”. Yet an inquest or inquiry provides no
guarantees as to future liability, even where it may uncover serious
wrongdoing or systemic failure.
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1.8 The balance between the fair trial rights of the accused and the State’s
obligation to conduct an adequate, independent, prompt and transparent
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investigation means that to some extent, the problem of multiple processes is

that if someone has died through the actions or inactions of another individual, a group an organisation
or a dangerous procedure, then the adversarial courts will sort it out… This is a hopeful, but hopeless,
counsel of perfection”.
8 Danny Friedman QC, ‘Inquests & Inquiries’ (JUSTICE Annual Human Rights Conference, October
2019), para 26.

9 The findings of public inquiries and inquests are neither binding, nor admissible, against any person in
subsequent proceedings: R (RJ) v The Director of Legal Aid Casework [2016] EWHC 645 (Admin) at
[26]; Rogers v Hoyle [2015] QB 265, 304 at [34]; and Bird v Keep [1918] 2 KB 692. However, a decision
not to prosecute must be reviewed in the light of subsequent findings by an inquiry/inquest: R v DPP ex
parte Manning and Melbourne [2001] 1 QB 330 at [33].
10 The “enhanced investigative duty” under Article 2 ECHR is engaged where death or life-threatening
injuries occur in “suspicious circumstances”, namely where the State is or may be in breach of one of
its substantive duties or where death occurs as a result of the criminal act of a non-State agent. Whatever
form it takes, the case law has determined that the investigation must be “effective”, necessitating the
following minimum procedural requirements:
• the initiative to begin the investigation must be taken by the State, not the individual;
• the investigation must be “adequate”, i.e. the authorities must have taken the reasonable steps
available to them to secure the evidence concerning the incident;
• the investigation must be carried out by an independent body or individual;
• it must be carried out with exemplary diligence and promptness;
• there must be a sufficient element of public scrutiny of the investigation or its results;
• the investigation must enable effective involvement of next-of-kin; and
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