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‘Hillsborough Law’ – a welcome call to rebalance the law in favour of bereaved families


    Hillsborough is now a part of the public consciousness; everyone knows the story of that tragic day in 1989. Recommendations to change the law could help ensure other families don’t have the same experience as those of the 96.

    By Ali Cloak

The recent Hillsborough inquest was the longest in English legal history; the coroner sat for 279 days and the summing up of the evidence took 26 days. A lack of cooperation and a number of untruths meant that it took much longer than necessary for families to know the truth.

Following the inquest, the Right Reverend James Jones, a former bishop of Liverpool, was commissioned to write a report on the disaster. Now published, the report raises a series of recommendations as to how both the police and public bodies could improve an alleged ‘culture of denial’ following public disasters.

The report made 25 recommendations but Jones highlighted three particular areas for improvement:

  • a ‘Charter for Families Bereaved through Public Tragedy’ in which public bodies would commit to placing the public interest above their reputation;
  • non-means tested, publicly-funded legal representation for bereaved families at inquests at which public bodies are represented; and
  • a duty of candour which should require police officers – serving or retired – to cooperate fully with investigations undertaken by the Independent Police Complaints Commission or its successor body.

The report also calls for police and public bodies to be more aware of their treatment of bereaved families, by being fully honest and open. It also stresses the need to avoid any institutional defensiveness when their failings may have contributed to people dying.

The recent tragedy of the Grenfell fire and the subsequent opening of an inquiry present an opportunity to avoid repeating the mistakes of Hillsborough. By enacting a ‘Hillsborough Law’ we can move towards more democratic accountability of public authorities at both an individual and corporate level.

First of all, as a solicitor who specialises in representing families in inquests, the implementation of a ‘Hillsborough Law’, centred upon wider access to funding for bereaved families, is entirely welcome and could not come soon enough.

The current position is grossly unfair and leaves many families without proper legal representation in inquest proceedings after the death of a loved one. Such inquests are of utmost importance, both to the family of the deceased and potentially to the public at large where a state body is implicated in the death.  The state usually has access to legal representation at an inquest and therefore it seems only just that families should have the same.

How would the Charter for Families help?

I have written a number of previous articles on the inquest process, for example what happens at an inquest. In brief, inquests are a ‘fact finding’ process and not intended to apportion either criminal or civil blame. The purpose is to determine four questions: Who was the deceased? Where did they die? When did they die? And by what means did they die?

The intention of this new charter is to create a cultural change in the attitude of public bodies at inquests, and for a review process to ensure proposed behaviours take root. The charter includes provisions to place public interest above the reputation of the public body, to avoid seeking to defend the indefensible and recognise that public bodies are accountable.

This charter would be very welcome indeed as families frequently encounter, at best, a lack of answers as to what happened to their loved one. At worst, attempts are made to place blame upon the deceased.

Why it’s important for families to receive Legal Aid

At present families often have to attend inquests without legal representation, unless they are able to pay for it.

Payment either comes from a family’s own personal funds or, if the circumstances of the death permit, through alternative funding such as a conditional fee agreement (CFA), also known as a ‘no win no fee’ agreement, or sometimes through Legal Aid. Jones’ recommendation aims to prevent a bereaved family lacking representation facing an experienced and adversarial barrister. The money for this would be drawn from those departments that are frequently represented at inquests i.e. Ministry of Justice and the Department for Health.

This is the most drastic and most welcome recommendation made by Rev Jones as it would go a very long way in helping to correct an ‘inequality of arms’ at inquests where the public body has specialist legal representation and the family do not.

It is wholly unrealistic to expect families to represent themselves when the inquest process is likely to be entirely new to them and very daunting, not least because they are grieving the loss of a loved one.

What is a ‘duty of candour’?

The National Police Chiefs’ Council has responded to the Hillsborough Inquest by suggesting the police adopt a Duty of Candour. There is already a common-law duty of candour in the UK but it lacks ‘bite’. A duty of candour was introduced for the NHS in wake of the inquiry into Mid-Staffordshire NHS Foundation Trust, which recognises the particular issues facing healthcare professionals.

A duty of candour specific to the police would be similarly tailored to them and the issues they face. It would place a legal duty upon police officers (both serving and retired) to cooperate fully with any investigations.

Anything that encourages early and open conversation, a reduction in defensive attitudes, engagement with the family of the deceased and an apology is incredibly welcome and it is hoped this will be implemented as soon as practicable.

Before I conclude, I thought I’d share the sentiments of Deborah Coles, Co-Director of charity Inquest, who nicely sums up my position on the report:

“This report is a damning indictment of the struggles of bereaved people for truth and accountability against an institutional culture of delay, denial and defensiveness … This is the second report this week (after Dame Elish Angiolini’s review on deaths in police custody), to make important recommendations on inquest funding, duty of candour and family support.”

Inquests are vital for families and vital for ensuring that the limbs of the state are held accountable and that lessons are learned to prevent future failures that could cause future deaths. I hope that these recommendations are taken seriously and prioritised. The time is ripe for positive changes to the inquest process; let’s hope the government implements them in the near future.

If you have any queries about an inquest or a claim following the death of a loved one then please get in touch.

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