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Min Wiggins, Legal Director
Thank you everyone for joining us and welcome to Mishcon's latest Nightmare Scenario session. By way of introduction, my name is Min Wiggins and I'm a legal director in the white collar crime and investigations department. I'm joined by Amanda Gray, a partner in our private department, and both Amanda and I advise individuals and companies in inquests and we are delighted and honoured to be joined today by Sam Leek, KC from 5 Essex Chambers. Sam has advised in some of the most high-profile inquests and inquiries to date, and Sam is currently representing Greater Manchester Police in the Heaton Park inquest, which is likely to become an inquiry, I believe, and is also advising the school in the Sara Sharif inquest as well. Now, for those who don't know, inquests are held where someone has died a violent or unnatural death, or the cause of death is unknown. They are also held where someone has died in state custody or detention, but we're not going to be focusing on that today. So, the coroner conducts an inquest to determine who died, where they died, when they died, and how they died and the coroner will also always consider whether there is a risk of future deaths if action is not taken, and Sam's going to come and talk about that in a little bit.
What happens is the death is referred to the coroner, they begin an investigation and determine whether an inquest is required. Now, inquests are inquisitorial, they are not adversarial, and they should not be approached like civil litigation. Nevertheless, being involved in an inquest can be challenging, stressful, and it's often a highly complicated process. It can also have profound implications on a company and individuals from ancillary proceedings, also reputationally as well and so it is important to get advice early on in the proceedings. Inquests can reach a huge scope of individuals and/or organisations and between us, we have advised clients from almost every one of Mishcon's departments: high net worth individuals, corporates, charities, schools, universities, hospitals, and government departments. Clients might find themselves approached early on by the police or by the coroner's officer, or they might be approached by an interested person who is seeking witness evidence, for example. For companies, by way of example, involvement could be where an employee, stakeholder, partner has taken their own life, or an incident has occurred on company property that led to the death, or an individual died while using a company product or service, like a gym, for example.
Or there may simply have been interaction with the person who has died, and that interaction doesn't necessarily have to be recent, it could be something historic. There might not be any connection or ultimate relevance or bearing on the death, but the coroner is going to basically want to make that determination themselves. Now, by way of example, you will have seen the horrendous news, um, in the press about, um, Nicholas Brandram, the man who is suspected of being the Putney Pusher and actually, the inquest is being opened today. And just to give you an idea, that coronial process is likely to involve a number of individuals and entities, including the police, HSBC, his former employer, the psychiatric hospital where he is said to have received treatment before his death, his family, his friends, and also the media outlets who had contact with him leading up to his death. So that, I think, gives a really good example of how wide-ranging inquests can be and the kind of scope that they can reach. Obviously, it is a huge area and we can't cover it all in this session, so we're going to look at 5 key areas.
We're going to deal with proactive engagement with the coroner, retention of documentation, disclosure, IP, interested person status, and also prevention of future death reports and so I'm just going to turn to Sam first to tell us about, first things first, proactive engagement with the coroner. Sam, over to you.
Samantha Leek, KC, 5 Essex Chambers
Thanks, Min. This is obviously going to be a real whistle-stop tour, we could do an hour on each of these, but starting with proactive engagement with the coroner, this is something that I've always thought is really, really important and depending on the nature of the inquest, it can have a really beneficial effect to engage with the coroner at an early stage. First of all, I should say that, as you said, often solicitors come to inquests through a commercial or a criminal litigation route and can set off on the wrong foot by being too aggressive or being too adversarial. So contrary to the adversarial approach, I would recommend proactively being in touch with the coroner's officer or the inquest legal team early in the process. That may well help the coroner or the ILT - Inquest Legal Team - frame the scope or the ambit of the inquest at a really early stage and help shape the parameters of disclosure. So, for example, we're going to come on to disclosure, I know, but it might help frame search terms for disclosure, what the coroner wants, how you can help. It might also help the coroner to identify potential interested persons, which we're also going to come on to.
You can suggest agenda items for the first pre-inquest review, for example, which a coroner might not have time to do. I think you should start from the premise that coroners are almost always overworked, almost always under-resourced, and will always welcome any help that they can get. So I think from a client's perspective, it is really reassuring to have a solicitor reach out on your behalf. It doesn't mean that you're in the frame for anything necessarily, but you might be able to help show that you're not in the frame in your early discussions with the coroner or the coroner's legal team. So that is a really high-level summary of why I think it's really important to engage with the coroner and the inquest legal team at an early stage. It also sets the right tone.
Min Wiggins, Legal Director
I agree, I agree. From it, just from experience as well, that they're normally really grateful that you've reached out.
Samantha Leek, KC, 5 Essex Chambers
Yeah.
Min Wiggins, Legal Director
And, um, as you said, it can really help influence the process as well, so it can help your organisation, and you can often see where the inquiry might actually be heading.
Samantha Leek, KC, 5 Essex Chambers
I think that's right and also, you might encounter the situation where they've asked for a statement from a particular person, but from your perspective, you know that's not the person who is best placed in your organisation to give that evidence and if you've started to develop a relationship from the outset, that will really help the way the whole thing runs from your client's perspective or from your perspective.
Min Wiggins, Legal Director
Yeah, no, that I completely agree and so, Amanda, on that, in terms of separate to interaction with the coroner, what should companies be thinking about doing in terms of documentation and retention of documentation?
Amanda Gray, Partner
It's absolutely critical, and it kind of works hand in hand that if you are also reaching out to the coroner, you should be thinking internally. And I'd actually encourage organisations and businesses to be almost forward-thinking about what might happen in this scenario. What might we do? What processes have we got in place? Retention of documentation isn't just about retaining evidence, it can have wider implications, both in terms of reputation and then also in terms of evidential risk. So organisations need to be thinking, right, okay, who is the person who's going to be managing the disclosure process or the document retention convention process within our company or within our organisation? What other lines of inquiry might be running in parallel internal to any kind of inquiry or request for documentation that might be made by the coroner's office? And that's important because there might be different streams of account. It's possible, for example, and certainly one that I've dealt with and in terms of matters I've dealt with Sam as well. If you're dealing with a medical scenario, for example, there might be a serious untoward incident investigation and report process going on where internal investigation is taking place, statements are being taken.
Well, that might have a parallel line of inquiry to what is happening in terms of evidence being gathered by the coroner, so there might be disparities between accounts, which obviously has evidential risk and there's reputational risk, and what you don't want to find is that evidence is somehow within your organisation suppressed or concealed or destroyed. Because if there is an incomplete or inconsistent account that emerges later on, that's not going to be beneficial to your firm, your organisation, on a number of levels, both in terms of your duties under the relevant acts, but also in terms of your reputation. It is absolutely critical. Find out first of all who's managing the disclosure process. I'd really encourage getting early legal advice and intervention about what you should be doing if it's not clear, and then you have a steer on what must be preserved, what is relevant, because that's very wide in scope as well in terms of the coronial process, what should be preserved, and make sure that you're guided in the right way.
Min Wiggins, Legal Director
Yeah, no, that's really, and obviously making sure that it's documented.
Amanda Gray, Partner
Absolutely.
Min Wiggins, Legal Director
So if the coroner asks any questions about how this is, they have it to hand.
Amanda Gray, Partner
Totally. Yes.
Min Wiggins, Legal Director
A clear audit trail is really helpful.
Amanda Gray, Partner
Yeah really helpful.
Min Wiggins, Legal Director
And in terms of what happens when the material is disclosed to the coroner, Sam, can I bring you in to discuss disclosure?
Samantha Leek, KC, 5 Essex Chambers
Absolutely but, but before I do that, I just want to comment on what Amanda said and the importance of the retention of documentation, including emails and WhatsApps and all the various digital forms of disclosure. And keeping a record of what you have asked your company to do by way of retention, because that forms or will form the very earliest part of disclosure. And if, if you end up having to provide a disclosure statement, and we've all been involved in inquests, inquiries where clients have been asked for that, you can set out what you've done right from the outset by way of retention and then disclosure. But by way of summary, disclosure in an inquest is a 2-stage process, and the quality of practical preparation for an inquest can have a really significant impact on the efficiency of the inquest hearing and can set a positive tone for engagement between interested persons and the coroner. And I've had an example in a previous inquiry, not going to say which, where the client/solicitors got off on a really bad footing because they didn't manage the disclosure process to the coroner properly. They didn't keep records of what they were disclosing, why they were disclosing, what the search terms were, for example.
But stage 1 of disclosure is to the coroner from potential witnesses, interested persons, anyone who the coroner asks for disclosure and when assembling your evidence, it is really vital to have regard to ongoing duties of disclosure. So first stage is that the coroner should request all reports or material that he or she believes is relevant for assessing scope and content of the inquiry, pointing out that disclosure at this stage is only for the coroner. Stage 2 is that the coroner will decide whether there can and should be onward disclosure to IPs, but the coroner will give those who want to argue against disclosure sufficient opportunity to do so. In practice, coroners quite often carry out disclosure fairly informally, often asking, give me everything you've got, and then being somewhat relaxed about onward disclosure and that brings me back to discussing being in touch with the coroner right at the outset, so you can discuss search terms, you can discuss relevance, etc. I would suggest, to address the difficulties of challenging disclosure with vast quantities of material, start identifying material as soon as possible and well in advance of the pre-inquest review, ideally before you've even been in contact with the coroner.
Contact potential witnesses, and as Amanda has said, instruct them not to destroy documentation or emails which may be relevant. Solicitors ideally should provide the client with a list of material that they may hold which might be likely to be relevant. If the documents, and this is really important, contain sensitive material about which there is any concern about onward disclosure, bearing in mind your data protection responsibilities, etc., provide the coroner with a redacted copy for onward disclosure along with an explanation for the proposed redactions. When the material is exceptionally sensitive, and here we're talking about covert human intelligence sources, named victims of sexual assault, children, or other PII issues, be sure to mark the sensitive material very clearly. For example, by providing in a clearly labelled separate folder or sealed envelope, for example, or even taking it to the coroner and removing it after reading. So that, there's just a huge amount that can be said about this, but where you hold particularly sensitive documents or a vast quantity, you could consider inviting the coroner or the coroner's counsel to view the documents in situ.
If you're concerned about any onward disclosure, ask the coroner for the opportunity to make submissions before that documentation goes further. And very briefly, duty of candour, which is, um, something, Min and Amanda, I know that you're really concerned about. There is no timeline as yet for the Public Office Accountability Bill to come into force, or the Hillsborough Law as everybody knows it. So, but it will affect inquests and it will affect witnesses. I'm not going to go into that in any detail now, but Part 4 of Schedule 1 of the Bill is currently drafted to amend the Coroners and Justice Act. So you will need to be aware of this if you are a public official, a public authority, or representing any of those, or any person with a relevant public responsibility. Sorry, that's a real whistle-stop tour.
Min Wiggins, Legal Director
No, no, Sam, I think, I think on the, on the, on the Hillsborough Law, I think we'll do a whole session on it in due course.
Samantha Leek, KC, 5 Essex Chambers
Yeah.
Min Wiggins, Legal Director
And obviously, if anyone has any particular questions about that, do, do reach out to any one of us. On, on disclosure, Sam, the other thing to flag is obviously that, yeah, the coroners won't, the coroner won't be troubled if actually a, an entity thinks that it would rather provide material under compulsion rather than voluntarily, um, for any reasons and so in, in light of your proactive engagement with the coroner, it's very, it's an option to have those sorts of discussions, and there's nothing particularly controversial about requesting that, is there?
Samantha Leek, KC, 5 Essex Chambers
No, definitely. You might have a company that's got sensitive information that is relevant to the inquest, or let's say a police force or a government department, and they hold confidential information that is nonetheless relevant to the potential scope of the inquest. And it just gives you a sense of somebody else having made that order that you have to disclose the documentation rather than saying to whichever witness it is or individual whose sensitive information you hold, well, I just handed it over.
Min Wiggins, Legal Director
Hmm mmm. Yeah.
Samantha Leek, KC, 5 Essex Chambers
It's a bit of a sense of security. So people will say, can you send us a Schedule 5 notice for this to disclose that information? And I've definitely been involved in cases where organisations have preferred to do it under compulsion than voluntarily.
Min Wiggins, Legal Director
Yeah, and it's the case that you've said it's a 2-stage test, and obviously once the disclosure onward from the coroner goes to the interested persons, there might be further requests for information and so just thinking about interested person status, Amanda, do you want to tell us a bit about that and how.
Amanda Gray, Partner
Yes.
Min Wiggins, Legal Director
And what considerations there might be?
Amanda Gray, Partner
No, absolutely. Again, it's with all these things to be, to have some kind of influence and engagement is to, is to have early engagement right from the get-go, not only just considering disclosure, document retention, but also considering IP, interesting person, interested person status. Now, as you said at the outset, this is not an adversarial process in terms of an inquisitorial investigation. However, it can often be potentially the, a first hearing or involved with potential the first hearing and, um, investigation that might precede a civil claim or some other form of action, legal action, to be taking place. So it's really important that IP status is given thought right at the outset. Now, under the CJA, there is a description of who would be an interested person. You haven't got here, you haven't got a defendant - oh, sorry, my light's gone off - you haven't got claimant and defendant, it's not in that status, but IP status gives you prescribed rights which can be very helpful, and they are set out in the Act. So it could be a member of the family, it could be someone who is involved, as we said, about being an employee, an employer.
It may well be brother or sister, it might be a PR of the deceased, it could be the executor or administrator of the estate. But more importantly, from an employer or organisational point of view, it might well be them, an organisation where a death has occurred on their premises or as a result arising from employment, or there might be something else that links it to the circumstances of death. But there are some other areas that are of interest, for example, an insurer, um, so an insurance, so somebody who holds insurance policy, they could be deemed to be a an interested person as well. There is a catch-all though, um, in terms of the Act that says about being, um, a sufficient interest. So there has to be a nexus, it can't just be a general interest, but it has to be of sufficient interest to the circumstances. And where it gets interesting is where there are borderline cases, and this is something for organisations to really give a great deal of thought to about whether they want to be considered as an IP on these borderline cases, because if you do you want to make representations at an early stage to the coroner's office, and you want to get those representations in before there is a pre-inquest review known as a PIR, because that will help give you, um, all the things we've talked about in terms of being able to make representations about, um, the, the evidence that's being amassed, witnesses you think should be called, um, your own level of involvement.
It's not to do about coming forward and being culpable or an admission of culpability. It's about having a voice and being able to shape the direction of things. Where are things going? Might it well be that you don't need to have IP status if things take a certain direction off the PIR, but you need to have that status in order to have that level of influence? So as long, as well, as having different rights in terms of being an IP, in terms of rights of disclosure and getting documentation, it gives you a voice in the room. There is a distinction, however, between being a witness and an IP. Just because you're not an IP doesn't mean you necessarily wouldn't be called as a witness, you still would be. But again, it just goes to the level of proactivity. Certainly I'd say that the downsides, of course, are cost and time, but I think those downsides are vastly outweighed, certainly if civil litigation may be on the cards further on down the track.
Samantha Leek, KC, 5 Essex Chambers
Can I jump in there as well? Can I jump in there as well, Amanda?
Amanda Gray, Partner
Yes, you can.
Samantha Leek, KC, 5 Essex Chambers
Just a couple of things. Just because you're an IP doesn't necessarily mean that you have to spend more time and incur more costs. But for example, if you are an IP because by your act or omission you may have caused or contributed to the death, you are going to want, as you've said, to have a seat at the table and have the opportunity to ask questions of other witnesses.
Amanda Gray, Partner
Absolutely.
Samantha Leek, KC, 5 Essex Chambers
And the other interesting person who gets to be an IP is a beneficiary under a policy of insurance issued on the life of the deceased, because they may want to show, for example, that it wasn't, that the person didn't take their own life, because there are policies of insurance that don't pay out for certain reasons so.
Min Wiggins, Legal Director
Yeah.
Samantha Leek, KC, 5 Essex Chambers
Back over to Min. I think, I think we're ahead.
Min Wiggins, Legal Director
We are. I mean, we could, we could go on and on about this, and I think in terms of, I'm going to segue from IP status because one of the things I think, if, if it's an inquest where we think the coroner is going to be issuing a prevention of future death report, um, and IP status is obviously a particular consideration in cases where that is on the cards, and Sam, I'm going to ask you just touch on this just because it is so important. We're running out of time, but if you can give us a summary on kind of the significance of Prevention of Future Death reports, that would be great.
Samantha Leek, KC, 5 Essex Chambers
Well, if people are willing to hang on another couple of minutes, I can tell them that this should be one of the very first things that you think about when representing an organisation which in particular may have caused or contributed to the death. So what is a Prevention of Future Death report, first of all? Under the 2009 Act, coroners are now under a duty to make a report to prevent other deaths, PFD report, where anything revealed by the investigation, not the inquest, so it can be before the inquest, where anything revealed by the investigation gives concern that there are circumstances in existence creating a risk of death In the future. Now, the prep for and conduct of the inquest itself should include, from the outset, consideration of this aspect of the aftermath. If the organisation only starts thinking about these issues towards the end of, or at the conclusion of an inquest, it's too late.
And in 1 minute, I would suggest that in order to prepare your client's case, it would be really wise to take the following steps. First, try and establish what went wrong, if anything. May not have done. What internal investigations have taken place? What recommendations have been made as a result? Whether the recommendations have been accepted and implemented. You might have had an external independent investigation, and you might want to show the conclusions of that to the coroner. Look at whether there have been similar failings in similar organisations which have been widely publicised and identify whether steps have been taken in response to known areas of criticism. This is really important. Amanda and I were involved in a case where a 16 year old killed himself in a private psychiatric unit, and there had been numerous reports about other private units owned by the same organisation, and lessons still had not been learned and this was, this ended up in the coroner being highly, highly critical of the organisation.
If the organisation had done a proper internal investigation at the outset, first of all, they would have known that their staff were fabricating accounts. Secondly, they would have known the issues were already being flagged across their estate, and they would have been able to show what changes they'd made as a result. But collate the documentation relevant to the issues, pull together a statement from a really senior member of the management team setting out these issues to show that the organisation is taking it seriously, and ask the coroner to call this person to give evidence with regard to the steps that have been taken since the death. I mean, that is really just last headline points touching on this.
Min Wiggins, Legal Director
Thank you, Sam, that's really great and you just mentioned one thing about investigations.
Samantha Leek, KC, 5 Essex Chambers
Yeah.
Min Wiggins, Legal Director
And companies in particular should be mindful of internal investigations, bearing in mind privilege, what is and isn't covered by privilege and that's something that should definitely have significant consideration from an early stage. And often it might be a historic investigation that has already taken place before the inquest arises, so bear that in mind.
Samantha Leek, KC, 5 Essex Chambers
And how independent is an internal investigation?
Min Wiggins, Legal Director
Yeah. Um, in terms of top tips, Sam and Amanda, I don't know if you've got one top tip for everyone listening who might end up in a coronial process. What is the one top tip you would say?
Samantha Leek, KC, 5 Essex Chambers
Mine would be get disclosure right from the outset. There is nothing worse than drip, drip disclosure because it looks like you have something to hide, even if you don't. So you've got to have your ducks in a row really early on. There is nothing worse than late disclosure, late adjournments, late identification of interested persons. Just, you have to get your house in order right from the outset.
Amanda Gray, Partner
I think mine would be plan ahead. So think now before something actually happens about what would we do in this particular scenario. So whether, you know, who's going to be in charge, who's going to command the disclosure process, the document retention process, um, and if I can have a second one, early engagement with the coroner.
Min Wiggins, Legal Director
Yeah, I, I completely agree and I think, yeah, bearing in mind what, what might happen to kind of, um, to fend off any prevention of future death reports, um, I think that and don't wait until the inquest, that would be my top tip.
Amanda Gray, Partner
No.
Min Wiggins, Legal Director
Because they can be, they can be reported well before the inquest even starts. I think we're bang on time, so thank you very much everyone for joining. I'm not sure if questions have come through, I might not be able to see them on my screen. If anyone has any questions, please feel free to reach out to me, Amanda, or Sam. We'd be delighted to help with any questions or queries, and otherwise, thank you very much for your time.