Talking to the Lead
A legal duty of candour on public authorities and officials would reflect a new era openness, says Rhian Greaves
The recent acquittal of match commander David Duckenfield saw renewed calls for a ‘Hillsborough law’ – designed to level the playing field between bereaved families on the one hand, and implicated public authorities on the other. First canvassed in 2017 by the then Labour MP Andy Burnham, the realisation that no one will now be held criminally liable for the 96 fatalities has reinvigorated the push for change. DUTY OF CANDOUR Candour is the quality of being open and honest.
Candour and the corresponding legal duty of candour already appear in pockets of the law. For example, defendants to applications for judicial review have a duty of candour, disclosure and information, which comes into play once permission to apply for judicial review has been granted. More recently, the duty has been enshrined in law by the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. Enforced by the Care Quality Commission (CQC), this requires all CQC-registered organisations to “act in an open and transparent way… in relation to care and treatment provided to service users”. And during the course of 2019, the CQC issued its first fixed penalty notices.
Burnham introduced the Public Authority (Accountability) bill in 2017 to parliament in March 2017 under the ten-minute rule. Stemming from his involvement with the Hillsborough families, his motion secured the backing of high-profile politicians including the now Liverpool City mayor Steve Rotheram. The 2017 bill followed the conclusions of unlawful killing reached by the second Hillsborough inquest jury. Speaking at the first reading of the bill (referring to the nearly three decades since the tragedy), Burnham said: “All those years, the evidence sat in official files, but our political, legal and coronial systems did not uncover it...
Worse, they actively colluded in a cover-up advanced in the Committee Rooms of this House... Hillsborough must be a watershed moment in this country – a point in history when the scales of justice are tipped firmly in favour of ordinary families fighting for loved ones.” The bill fell victim to the early dissolution of parliament in 2017 following Theresa May’s decision to call a snap general election. The quest was renewed following Duckenfield’s acquittal of 95 counts of manslaughter. With no individual or organisation now convicted in connection with the fatalities, Burnham and Rotheram joined with Margaret Aspinall, chair of the Hillsborough Family Support Group, to write to the party leaders in the run up to the recent general election. Their letter stated: “We can only conclude that the English legal system simply does not work for bereaved families, particularly when they are up against public bodies or the state. It is impersonal, insensitive and emphatically not a level playing field”. Drawing comparisons with the Birmingham pub bombings; with Bloody Sunday: the contaminated blood scandal: and the Grenfell Tower tragedy, the letter said “the parallels between these cases are clear and the common denominator is a system which simply does not protect the interests of ordinary people when thrown into tragic circumstances”.
The bill would require public institutions, servants and officials to act at all times in the public interest and with transparency, candour and frankness, and assist court proceedings, official inquiries and investigations where their own acts or omissions are (or may be) relevant. The proposals flesh out these requirements and include that public institutions and individuals must: — act with proper expedition and without favour to one’s own position; — make full disclosure of relevant documents, materials and facts; — set out the position at the outset of any proceedings, inquiry or investigation; and — provide further information and clarification as ordered.
The bill requires those caught to be mindful of the ambit of investigations or proceedings but “…not be limited by them… in particular where [the public body, servant or official] hold[s] information which might change the ambit of the…proceedings”. This suggests an all-encompassing duty of disclosure regardless of the parameters of the ongoing legal processes. Chief executives of public authorities will commit a criminal offence, punishable by a fine and or imprisonment if they fail to meet the duty. Public servants will also commit an offence if they intentionally or recklessly mislead the general public, the media or proceedings.
They will equally be guilty if they hinder their authority’s compliance with the duty.
Enactment of the bill doesn’t yet appear close. While both the Labour leader Jeremy Corbyn and the then Liberal Democrat leader Jo Swinson responded supportively to the letter, the Conservatives’ campaign simply said it was “being looked at”, while noting the Hillsborough families should have “all the support they need”.
There was no specific reference to the duty in the recent Queen’s Speech, though campaigners may have found encouragement in the Monarch’s words: “My government will ensure that the courts work better for all those who engage with them,” and “legislation will be brought forward to support victims of crime and their families”. Do any issues arise at all? It is becoming progressively clear that even absent a statutory duty of candour, there is already increased pressure on parties in cases with a ‘public’ element to act in a frank fashion.
The ideas introduced by the bill support this. This new era of openness brings into play a series of tensions with the traditionally defensive approaches to advising clients in the immediate aftermath of serious incidents, particularly: — At the outset of an instruction, a solicitor will often want to commission an internal investigation report within the organisation so they can provide the legal advice needed. Typically, this will be subject to legal professional privilege. Should the client decline to disclose that work product on the basis of privilege, they may be accused of hiding evidence and not cooperating. Managing the commercial, moral and publicity impacts as well as the legal implications is key. — There is already a tension between the expectations placed on organisations around disclosure in regulatory matters, and the corporate suspect’s right to silence in a criminal case, whether at the interview under caution stage or in court.
Where the privilege against self-incrimination is reasonably asserted, there is a defence to the charge of lacking candour. But what is reasonable in those circumstances? — The sentencing regime in areas such as health and safety has already introduced a push for earlier admissions of liability and co-operation “beyond that which will always be expected”. This places pressure on the lawyer to assimilate the facts quickly and to provide reasoned advice as to the risks and potential rewards of frank admissions at an early stage. — Away from the criminal process, those involved in inquiry work are increasingly asked for a position statement in advance – often when their client is still subject to a criminal investigation and disclosure has been piecemeal. The privilege against self-incrimination exists in this context too; but balancing cooperation with the ongoing inquiry against that need for a certain level of privacy is invidious. — These difficulties are compounded by the age of social media and the accompanying speedy rush to judgement, which already creates difficulties for organisations involved in high profile cases. Lawyers must be adept at being alive to the possible public relations implications of their professional decisions and the manner in which clients react.
The tenacity and commitment of the Hillsborough families in such difficult circumstances is to be admired. Though a change in the law doesn’t appear imminent, it’s clear we are entering a new and more open era regardless. This requires lawyers to be alert to the issues and adaptable to the circumstances, while policing some tough discussions with clients.