Page 74 - When Things Go Wrong

investigations. In her Review of deaths and serious incidents in custody, Dame
Elish Angiolini concluded: “it is clear that the default position whenever there
is a death or serious incident involving the police, tends to be one of
defensiveness on the part of state bodies”. 204 Writing on the experience of the
Hillsborough families, Bishop James Jones found that South Yorkshire
Police’s “repeated failure to fully and unequivocally accept the findings of
independent inquiries and reviews has undoubtedly caused pain to the
bereaved families”. 205 From these and several other accounts, 206 it is clear that
public authorities and private sector organisations have consistently
approached inquiries as if they were litigation, failing to disclose the extent of
their knowledge surrounding fatal events unless directed to do so.

4.34 In addition to the pain and suffering caused, such a stance contributes to
lengthy delays as the inquiry grapples with identifying and resolving the issues
in dispute, 207 at cost to public funds and public safety. Such institutional
defensiveness and the inherent imbalance of power at its heart must so that
public authorities and those exercising a public function approach the inquiry
process with “their cards on the table”.

Existing duties of candour

4.35 A duty of candour already exists at common law in the context of judicial
review (“JR”). Unlike civil or criminal proceedings, no formal duty of
disclosure is imposed on parties in JR unless the Court orders otherwise. 208 The

204 Angiolini, supra note 15, para 17.2.
205 Jones, supra note 16, p. 81.
206 See, for example: Sir Robert Francis QC, Report of the Mid Staffordshire NHS Foundation Trust
Public Inquiry (HC 947, 2012-13), pp. 103, 114; Equality and Human Rights Commission, Preventing
Deaths in Adult Mental Health Detention (2015), p. 3, recommendation 3; Lord Toby Harris, The Harris
Review: Changing Prisons, Saving Lives (Cm 9087, July 2015), paras 7.15-19; Dr Bill Kirkup CBE,
The Report of the Morecambe Bay Investigation (2015), para 1.24 and recommendation 30; and HHJ
Teague QC, Report into the Death of Anthony Grainger (HC 2354, 2017-19).
207 Jones, supra note 16, para 2.106.
208 CPR Part 54, Practice Direction 54A, para 12. However, as a direct consequence of the
recommendations arising from the Mid Staffordshire NHS Foundation Trust Public Inquiry, a statutory
duty of candour was imposed on the health sector through Regulation 20 of the Health and Social Care
Act 2008 (Regulated Activities) Regulations 2014.

67