Public inquiries, criminal investigations and inquests are often simultaneously opened. However, the interaction between them is often unclear.
What is an Inquest?
Inquests are fact finding inquires, conducted by a coroner (often using a jury), and are limited to establishing the cause and circumstances of a death. It is open to the coroner or jury to deliver any conclusion regarding the death, including accidental or unlawful killing. In order to return a conclusion of unlawful killing, the inquest must be satisfied of the facts to the criminal standard of "beyond reasonable doubt". All other conclusions require the civil standard of "on the balance of probabilities". The inquest may deliver a narrative conclusion which sets out the facts in more detail; however in those circumstances it will have been unable to apportion civil or criminal liability.
What is the Interaction with an Inquest where there is a parallel Criminal Investigation?
A prosecuting authority is able to request the suspension of an inquest on the grounds that a person or company may be charged with a homicide offence in respect of the deceased (including gross negligence manslaughter and corporate manslaughter). Upon receiving such a request, the coroner must adjourn the inquest pending the conclusion of the criminal proceedings. Following a criminal trial the inquest can be resumed. In such circumstances any conclusion cannot be inconsistent with the criminal trial. By way of example, should criminal proceedings result in convictions of manslaughter, the coroner will close the inquest with an automatic verdict of unlawful killing.
In contrast, and in circumstances where criminal charges were not previously considered and the inquest results in an unlawful killing conclusion, the ordinary expectation would be that a prosecution would follow. Case law dictates that where no prosecution follows there should be solid grounds to explain why the decision not to prosecute has been taken.
What is a Public Inquiry?
A public inquiry is established to investigate issues of public concern, often led by a Judge or Law Lord as the chairman. The process is governed by the Inquires Act 2005. The chairman has wide ranging powers to compel witnesses to give oral evidence and to produce documents - he may conduct the inquiry however he wishes and is only restricted by the terms of reference which describe the purpose and scope of the inquiry. A vast quantity of written and oral evidence will be considered resulting in a report published by the chairman on the inquiry's findings and any recommendations for the future.
Who is involved in a Public Inquiry?
Parties can apply to be granted core participant status in an inquiry. The chairman will determine such applications having regard to whether the applicant played a role or has a significant interest in the matters to which the inquiry relates, and also whether the applicant may be subject to explicit or significant criticism during the process. Those designated as core participants will be able to suggest lines of questioning to be pursued by counsel and will have the right to apply to ask questions of witnesses during the hearings. Others who are not core participants may be required to provide statements as witnesses and to give evidence on oath at the inquiry.
What is the interaction between a Public Inquiry and a parallel Criminal Investigation?
Arguably, public inquiries should, as with inquests, be stayed so as not to undermine any criminal investigation. However, as we saw with the Leveson Inquiry in to phone hacking, in certain circumstances the public interest can justify that the inquiry be held in parallel. As a result, companies and individuals are likely to find themselves in difficult situations where they are compelled as witnesses in an inquiry whilst simultaneously being investigated and possibly interviewed in a criminal investigation regarding the same matter.
Although the chairman cannot make any finding of criminal or civil liability, the Act makes clear that the likelihood of liability being inferred from facts or recommendations should not inhibit the inquiry. Therefore, even in the absence of any criminal proceedings companies and individuals can find themselves publically criticised. Witnesses are able to rely formally upon the privilege against self-incrimination, and undertakings can be sought from the attorney general that evidence will not be used in criminal proceedings. However, such procedures do not provide complete protection. Information which is not directly incriminating may be inadvertently extracted which sends the parallel criminal investigation on to a line of inquiry which uncovers something incriminating.
If the inquiry follows the Leveson example, all statements and transcripts of evidence will be uploaded to the inquiry's website which a potential jury might read and form views about, months in advance of any trial. Witnesses will therefore need to give very careful consideration to their evidence so as to ensure it is not something which can come back to haunt them in other proceedings.