Page 78 - When Things Go Wrong

4.43 The Working Party recommends the introduction of a statutory duty of
candour in inquests and inquiries. We consider that the Bill, which through
clause 2 would impose “a duty to assist…official inquiries and investigations”,
provides the appropriate framework for introduction of the duty, subject to
paras 4.46-4.48 below.

4.44 Clause 1(3) of the Bill makes provision for the manner in which the duty is to
be discharged. Clause 1(3)(d) stipulates that public servants and officials shall
“make full disclosure of relevant documents, material and facts”. Clause
1(3)(e) requires that they will additionally “set out their position on the relevant
matters at the outset of the proceedings, inquiry or investigation”.

4.45 The Working Party agreed that a position statement, as envisaged under clause
1(3)(e), should not amount to a pleading, which is adversarial in nature. As the
drafters of the Bill put it – “it should include responsibilities and duties,
relevant policies, command and control structures, what the institution’s
officers/employees did and did not do, good practice, wrongdoing, failures and
omissions, and what others did only so far as it impacted on its own
performance”. 215 To that should be added an account of any remedial steps
taken since the incident in question.

4.46 Whilst there was broad agreement as to the nature of such a statutory duty,
there was a divergence of view as to the application of clause 1(3)(e). Should
the obligation to provide such a statement arise automatically or be at the
direction of the chair/coroner? It was agreed that such a statement would be
both appropriate and desirable in most cases; but that will not invariably be so.
The underlying facts may be too uncertain at the outset to enable a meaningful
position to be set out. There may be a conflict of evidence between different
employees of a public body that may need to be resolved by the calling and
assessment of the evidence. There may be circumstances in which such
statements will prolong, not shorten, the proceedings. Whilst it will be open to
the makers of statements to update or amend them in the light of developing
knowledge, that will not meet all contingencies. It is therefore proposed that
the requirement to provide a position statement should be subject to a tribunal

215 Written evidence to Working Party.
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