Page 80 - When Things Go Wrong

V. HEARING PROCEDURE AND PRACTICE

5.1 Inquests and inquiries are nominally inquisitorial proceedings. Indeed, our
evidence gathering suggested that there is a firm belief in and commitment to
an inquisitorial process amongst professional users. This mirrors the
experience of the Lords Select Committee: “all our witnesses who addressed
the issue agreed that inquiries were best served by an inquisitorial rather than
an adversarial procedure, with the line of questioning directed at ensuring that
the panel hear all that they need to know”. 216 In the inquest context, the very
first principle cited in the Government’s 2019 ‘Review of legal aid for
inquests’ is that “inquests should be inquisitorial”. 217

5.2 However, despite this aspiration, evidence from bereaved family members and
their representatives suggest that, ostensibly, inquisitorial procedures in reality
are often a “highly adversarial battle”. 218 The hostility of the process is
described across three chapters of Working Party member Dr Sara Ryan’s
account Justice for Laughing Boy, which notes “the coronial process, as we
were to find out, is an intricate, archaic, law-drenched and uncertain journey
in which families without expert legal representation are too easily
silenced”. 219

5.3 Recognising that legal processes can be deeply alienating for lay users, and
drawing on the proposals in Understanding Courts, the Working Party makes
four general recommendations applicable across inquests and inquiries:

216 Select Committee on the Inquiries Act 2005, supra note 30, para 213.
217 Ministry of Justice, ‘Final report: Review of legal aid for inquests’, February 2019, para 5.
Inquisitorialism is cited throughout as the basis for the current limits on public funding, see paras 26,
36, 45-46, 201.
218 Jones, supra note 16, para 2.37 (citing David Conn).
219 Sara Ryan, Justice for Laughing Boy (Jessica Kingsley Publishers 2018) p. 151. Dr Ryan also
describes meeting an MP to discuss the process: “[he] remained resolute in his belief that the coronial
process was not adversarial. He had an unswerving faith in the strength and integrity of Coroners to –
fearlessly – manage the process of grief-stricken families on the one side and a well-armed stock of in-
house and external lawyers and barristers on the part of a [public body], with unlimited funds” at pp.
157-8.

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