Page 62 - When Things Go Wrong

IV. PRE-HEARING PROCEDURE

We are not prepared to participate in a process where the presence of our clients is
pure window-dressing, lacking all substance, lacking all meaning and would achieve
absolutely nothing other than lending this process the legitimacy it does not have and
deserve. Philippa Kauffman QC. 165

4.1 It is a strength of inquests and inquiries that the procedure is a flexible one.
Structure is certainly provided by the relevant primary and secondary
legislation. 166 However, procedural requirements are less stringent than in the
civil and criminal jurisdictions. There are no practice directions and no
procedure rule committees keeping the secondary legislation under review.
This is partly a reflection of their fact-finding remit and ostensibly non-
litigious nature. In the case of inquiries, flexibility is also appropriate given the
wide range of potential subject matter. 167

4.2 But lack of standard procedure has had the consequence that inquests and
inquiries have not always benefitted from the kind of innovation in best
practice developed in the criminal and civil jurisdictions. While the Woolf and
Jackson reforms encouraged a “cards on the table” approach to civil litigation,
bereaved interested persons in inquests typically report a “drip-feed” of
documents in the months following the death, often with a glut of material
arriving the night before or on the day of the hearing. Furthermore, despite the
advances made in the questioning of vulnerable witnesses in the criminal
justice system (“CJS”), families in inquests are typically “not prepared for
what they [have] described as the intensity and ferocity of the approaches taken
by lawyers representing public authorities”. 168 This is exacerbated by the
difficulty in accessing public funding for representation at inquests under the
current regime, which means that families are almost invariably left to navigate
this adversarial battle without specialist legal support and whilst in the midst
of grief.

165 Undercover Policing Inquiry, Preliminary Hearing (21 March 2018).
166 Principally, the Coroners and Justice Act 2009; Inquiries Act 2005; the Coroners (Inquests) Rules
2013; the Coroners (Investigations) Regulations 2013; and the Inquiry Rules 2006.
167 Mackie, supra note 23.

168 Jones, supra note 16, para 2.72.
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