Jones: Patronising Disposition Review

The experience of the Hillsborough families of 'the patronising disposition of unaccountable power' calls for a substantial change in the culture of public bodies. To help bring about that cultural change, I propose a Charter for Families Bereaved through Public Tragedy – a charter inspired by the experience of the Hillsborough families and made up of a series of commitments to change – each related to transparency and acting in the public interest. I encourage leaders of all public bodies to make a commitment to cultural change by publicly signing up to the charter. In signing up to the charter, leaders of public bodies should put in place a plan to deliver the particular changes needed within their organisation to make the behaviours described in the charter a reality in practice. They should also make a commitment to review progress against that plan on a regular basis. When an organisation has signed up to the charter, it should declare this fact publicly. I welcome the government's commitment, made in the Conservative Party manifesto, to create an independent public advocate to act for bereaved families after a public disaster. Once a public advocate has been appointed, I offer the charter to them as a benchmark against which they may assess the way in which public bodies treat those bereaved by public tragedy.

The absence of a coroners' service inspectorate creates the risk that a lack of clarity about current performance acts as a barrier to improvement. Since there are, I understand, no plans to create a relevant inspectorate, I suggest that the Chief Coroner explores alternative mechanisms for allowing coroners' performance to be evaluated and for the relevant performance data to be made public. At a basic level, this should include the use of standardised feedback forms for interested persons and juries at inquests, the results of which could be simply and inexpensively collated and the headline data published on the Chief Coroner's website. The Chief Coroner should then draw on this data in developing training and guidance, as well as in identifying local performance issues and national strengths and weaknesses.

An inquest should be an opportunity to learn the lessons of a death in order to help the living. A key tool for achieving this should be through the coroner's power to issue Prevention of Future Deaths (PFD) reports. I have been told by the legal representatives of the families that PFD reports are currently under-utilised and that practice among coroners as to the circumstances in which they make PFD reports varies considerably. Distribution of PFD reports is too limited. There is no follow up to ensure that an organisation's response to the issues identified in a PFD report is adequate. The Chief Coroner publishes the reports but does not have the resources to spot widespread or thematic issues and to draw attention to them.

Utilising the legal routes available in the absence of an appeal process, Anne Williams, mother of Kevin Williams, made three Section 13 applications to the Attorney General asking him to apply to the High Court for the original inquests to be quashed. Each application failed. Anne Williams' applications to the Attorney General were based on medical analysis of a similar nature to that undertaken by the Hillsborough Independent Panel. As is set out elsewhere in this report, the Panel's analysis ultimately did lead to the Attorney General making an application to the High Court for new inquests. In order that the Hillsborough families' perspective is not lost, and to understand whether changes are needed, I believe that the Attorney General's Office should review its processes for consideration of Section 13 applications to ensure that they are fit for purpose.

A great deal of excellent work has gone into producing the draft Public Authority Accountability Bill, or 'Hillsborough Law'. I agree with the Bill's aims and with the diagnosis of a culture of institutional defensiveness which underpins it. I have drawn heavily on the Bill's principles in the drafting of the charter and in my proposals for 'proper participation' for bereaved families at inquests… I agree with the view that while legislation isn't the answer to creating a culture of honesty and candour, it is part of the answer. My proposal for a duty of candour for police officers, set out in point of learning 14 is made on the basis that it represents the clearest and best next step in putting the statutory duty of candour into place. The Bill proposes amendments to a complex and changing area of law. In particular, the Law Commission's detailed work aimed at reforming the offence of Misconduct in Public Office is – at the time of writing – ongoing. Once the Law Commission's work is complete, and Government has agreed the detail of the reform the Commission sets out, full consideration should be given by government to the Public Authority Accountability Bill.

One specific element of the Public Authority Accountability Bill is a proposed 'duty of candour' for all public officials. Such a duty has already been introduced in the NHS, following Sir Robert Francis' inquiry into Mid-Staffordshire NHS Foundation Trust. In my view, the Hillsborough families' experiences make the case that the next extension of the duty of candour should be in respect of police officers. Just as the NHS duty of candour is tailored to healthcare, so the police duty of candour should recognise the particular issues facing policing. As a minimum, the duty of candour should require police officers – serving or retired – to cooperate fully with investigations undertaken by the Independent Police Complaints Commission or its successor body, the Independent Office for Police Conduct. But there is also scope for a wider duty of candour in respect of policing. I commend this commitment to explore how a wide ranging police duty of candour would operate, and encourage the Home Office, National Police Chiefs' Council and the College of Policing to work together to publish detailed proposals.

It is difficult to overstate the impact of the failures of pathology at the first inquest. The impact is deeply personal for those families who feel they will now never know how their loved one died, but it also has a wider resonance – leading as it did to the necessity for new inquest proceedings 25 years after the disaster occurred. Given that impact, that there should be proper consideration of the potential for learning from the failings of the pathology evidence to the original inquests. A review should be commissioned by the Pathology Delivery Board, which oversees the provision of forensic pathology services in England and Wales, and delivered independently. As well as reviewing how the evidence at the first inquests came to be misleading and why, the review should also consider whether there are adequate safeguards to prevent it happening again, including clinical governance and revalidation processes that are made more difficult by the small size of the subspecialty of forensic pathology and its distinctive employment mechanism. This review should also consider whether a process of accountability is appropriate in respect of the misleading evidence presented at the original inquests. Finally, the review should consider how to embed the lessons from the Hillsborough experience in the continuous professional development training of pathologists.

It has been submitted to me that the medical evidence presented at the fresh inquests may make a useful contribution to the content of additional training for police officers, prison staff and others whose job can involve the restraint of others – in particular in order to reduce the incidence of deaths and significant hypoxic injuries from restraint asphyxia. The Ministerial Board on Deaths in Custody should consider how best to ensure that the medical evidence from the recent inquests contributes to training in the prevention of restraint asphyxia, and I have written to the Council to invite it to do so.

The government has not responded publicly to warnings about the state of pathology provision in England and Wales made in a 2015 Home Office-commissioned review conducted by Professor Peter Hutton, or to warnings made by the Chief Coroner in his 2015-2016 annual report. Both raise important concerns which government should now address.

I would encourage the Chief Coroner to ensure that all coroners are made aware of the experience of the Hillsborough families as set out in this report. Coroners should ensure that the decisions they make on toxicology – especially in respect of children – are made in a sensitive way, driven by necessity. Special care should be given to the way in which toxicology results are made public.

Families bereaved through public tragedy too often face a vacuum in respect of information about their rights and the process of an inquest. The Ministry of Justice's Guide to Coroner Services seeks to address this vacuum, but the evidence I have seen in producing this report demonstrates that more needs to be done. Families I listened to who had recent experience of inquests told me that that their route to obtaining specialist advice, practical support and legal representation was often a matter of luck and word of mouth. Justice should not depend on happenstance. In particular, I suggest that: Families should be informed of their rights to legal advice and representation and the availability of public funding. Families should also be told that if the death involves a public authority then it is highly likely that the organisation in question will be represented by lawyers at the inquest. Specialist information should be given to families where a death involves a public body - as well as in other complex cases - so that these families receive appropriate guidance rather than the usual information provided to families in respect of more routine inquests. This should include information about sources of specialist support and advice, including organisations such as INQUEST. This information should be passed immediately to the bereaved family by the coroner's office following a death involving a public body. All bereaved families should be given clear information immediately following death concerning the post-mortem procedure and a family's full rights under the Human Tissues Act, including the right to a second post mortem. The government should review the level of funding support it provides to charities such as the Coroners' Courts Support Service, whose volunteers give emotional and practical support to families and other witnesses attending inquests. It has been submitted to me that the funding granted to such support services is inadequate, meaning that the support they are able to give falls seriously short of that provided to victims and witnesses in criminal cases. In addition, I warmly welcome the government's commitment – expressed in the recent Conservative Party manifesto – to the creation of 'an independent public advocate, who will act for bereaved families after a public disaster and support them at public inquests'. I would anticipate that a key part of the advocate's role will be ensuring that bereaved families are kept properly and fully informed at all times.

The experience of the Hillsborough families as set out in chapter 1 identifies specific failures in the response to the disaster in 1989. The material in that chapter presents an opportunity for police forces, the College of Policing, coroners and the Chief Coroner to undertake an honest self-appraisal of their own policies, practice and state of readiness for responding to a major incident in the present day – in particular in respect of the treatment of families. The instinctive position of such organisations may be to say 'It couldn't happen now', and it is true that practice has undoubtedly come a long way. But relevant organisations should use this report in order to engage in the critical self-reflection that can ensure that the perspective of the Hillsborough families is not lost. In particular, relevant organisations should ensure that the specific experience of families being asked to identify loved ones through the viewing of scores of unsorted photographs of those who have died is never repeated. In addition, the importance of treating families with respect cannot be overstated.

Families told me that they felt that the way in which death certificates were issued following the fresh inquests – with no covering letter and in some cases unexpectedly – caused great pain and distress. I accept the assurance provided to me by the Home Office's that death certificates are in normal circumstances only issued on request, and that they should not therefore arrive unexpectedly. However, it is my view that for death certificates to be issued without the courtesy even of a short covering letter is inherently disrespectful to the deceased and to the bereaved, and that this practice should be stopped.

The response of South Yorkshire Police to criticism over Hillsborough has, over the years, included several examples of what might be described as 'institutional defensiveness'. The force's repeated failure to fully and unequivocally accept the findings of independent inquiries and reviews has undoubtedly caused pain to the bereaved families. I consider that there is a point of learning here to be developed by the College of Policing. The College should consider what training and guidance is provided to senior police officers to assist them in ensuring an open and transparent approach to public inquiries and other independent investigations. This should include training and guidance on how forces can encourage its officers to accept and learn from adverse inquiry findings. There may, for example, be a role for a 'restorative justice' style approach, in the sense of police officers and those affected by the issue in question having an opportunity to meet to discuss how they have been affected by events and what should be done to repair the harm. In considering what training and guidance is necessary, the College should have regard to the other points of learning identified by this report – in particular those relating to the proposed Charter for Families Bereaved through Public Tragedy.

The bereaved families' experience of the various public inquiries which have taken place into Hillsborough points to a number of points of learning. In particular: The Hillsborough Independent Panel demonstrates that formal inquiries under the Inquiries Act 2005 are not the only option available to government when it is considering external public scrutiny. A number of investigative Panels have since been set up by government and the panel model is likely to be suitable for the scrutiny of other issues of public concern in the future. In order that the panel model is applied appropriately and successfully, we believe that the time has come to evaluate the various panels created to date in order to establish criteria for the model's future use. Chairs and secretaries to public inquiries and other forms of independent scrutiny should give careful consideration to the pain, stress and emotional damage that such processes can cause bereaved families – even in cases where they ultimately consider the result of the inquiry to be positive – and should ensure that adequate support for family members is put in place.

It is not within my terms of reference to comment on calls for a public inquiry into Orgreave or other historic issues involving the police. Elsewhere in this report I suggest that the Attorney General's Office should review its processes for consideration of Section 13 applications for inquests to be quashed, to ensure those processes are fit for purpose. In my view, the Home Office should also consider whether it has appropriate systems in place to ensure that it is able to make informed and transparent decisions in respect of requests for public inquiries or other forms of independent scrutiny of matters of public concern. I also agree with David Conn, who wrote in his submission to this report that the Home Office should also set out publicly 'what its policy is on historic inquiries into police malpractice and other injustice, and consider a principled policy of intervention to help people who might find themselves in a similar terrible situation as that of the Hillsborough families'. In doing so, the Home Office should have regard to one of the lessons of the Stuart-Smith Scrutiny: that if it is to commission independent examination of an issue it should not seek to internally pre-judge the findings of that examination.

In 2012, the Hillsborough Independent Panel made the following recommendation: 'The Panel recommends that police force records are brought under legislative control and that police forces are added to Part II of the First Schedule to the Public Records Act 1958, thereby making them subject to the supervision of the Keeper of Public Records.' This recommendation was intended to address the current legal framework, which – among other things – has the effect that police forces are under no obligation to keep records of historical interest. The recommendation has not been taken up by government. It is a fundamental principle of accountability that public records are subject to proper rules relating to retention and inspection. Where this is missing, a key element of accountability is removed. The issue identified by the Hillsborough Independent Panel in 2012 and repeated here should now be addressed as a matter of urgency. Since the Panel's report was published it has been suggested to me that even if police forces were to be brought under the Public Records Act, this may not be sufficient to address the issues the Panel identified. I therefore suggest that the Home Office and the Department for Culture, Media and Sport, as the department responsible for the National Archives, work together to determine and deliver an appropriate solution to the issue. Given the changes to policing since the Panel's report, I recognise that an approach involving Police and Crime Commissioners may now be appropriate and desirable.

Policy and practice in respect of police complaints and disciplinary proceedings have been reformed substantially – largely in response to public concern following the publication of the Hillsborough Independent Panel's report in 2012. I welcome those changes but recognise that is too early to assess their effectiveness. The fresh criminal and disciplinary investigations have been very significant in scale. They represent the largest homicide investigation in British history, as well as the largest investigation ever conducted by the Independent Police Complaints Commission. Once the investigations and any prosecutions which flow from them are concluded, they should be the subject of a lessons learned exercise. This exercise should be led by the College of Policing, working with the Crown Prosecution Service, Operation Resolve and the IPCC, and consultation with the Hillsborough families. This exercise should consider the effectiveness of the Family Forums and the Article 2 Reference Group as well as the administration and performance of the investigations themselves. In doing so, it should consider whether similar mechanisms would be of use as part of the investigation into future major incidents.

The Hillsborough families' experience demonstrates the need for the bereaved family and friends of those who have died to be questioned only as absolutely necessary in the immediate aftermath of a major incident. Minors should not be questioned in the absence of family or an appropriate adult. In presenting this point of learning, I accept that in some instances there may be an immediate need to conduct interviews with bereaved families – for example, to prevent further loss of life, or in cases where for other reasons it is operationally necessary. In addition, regardless of the timing of such an interview, the experience of the Hillsborough families demonstrates that how family members are interviewed can make all the difference to that family's experience. As this report shows, 28 years later, the way in which interviews of Hillsborough families were conducted has scarred many deeply. The College of Policing should ensure that the training and guidance it provides to police officers properly reflects this point of learning and the experience of Hillsborough families expressed in this report.

The families' experience demonstrates the need for social work and other support to be made available at the earliest opportunity following a public disaster. That support should be capable of referring on bereaved families to relevant support in the area in which they live. I believe that this will be an important area of focus for the independent public advocate envisaged in the Conservative Party manifesto.

It has been submitted to me that the issue of family members being told that their loved one is the 'property of the coroner' and being prevented from seeing, touching and holding their body in part arises from a lack of clarity in law as to the rights of bereaved families. The Ministry of Justice should consider whether the law in this area is sufficiently clear and, if not, bring forward proposals in order to clarify it. In addition, the College of Policing and Chief Coroner should work together to develop clear guidance setting out the rights of bereaved families in terms of access to their loved one's body, along with best practice on how best to give effect to those rights. Organisations who assist the bereaved, such as INQUEST, police forces, social services departments and counselling organisations should be involved in the development of such guidance. The guidance should make it clear that the suggestion that the body of someone who has died is the 'property of the coroner' is wrong and that use of the term should be eliminated. The guidance should also emphasise the importance of families having physical access to the body of their loved one rather than being restricted to viewing through a glass window. The guidance should also include information on the arrangements which can be made to ensure that forensic evidence is not compromised and how best to properly and sensitively explain this to families.

On police ethics and ethos, I would echo the words of Theresa May, who as Home Secretary told the 2016 Police Federation Conference to: 'Remember Hillsborough. Let it be a touchstone for everything you do. Never forget that those who died in that disaster or the 27 years of hurt endured by their families and loved ones. Let the hostility, the obfuscation and the attempts to blame the fans serve as a reminder of the need for change. Make sure your institutions, whose job it is to protect the public, never again fail to put the public first. And put professionalism and integrity at the heart of every decision, every interaction, and every dealing with the public you have.' I support the police Code of Ethics and its continuing development, as well as the ongoing work to embed it within all aspects of policing. The Code must not be treated as a box that has been ticked – it instead requires an ongoing commitment to cultural change. As a further point of learning, building on the then Home Secretary's 2016 speech and the work already undertaken by the College of Policing and others, I believe that the Hillsborough families' experiences demonstrate that empathy and integrity should be considered as central to both recruitment and professional development.

Bereaved families told me that they felt degraded by much of the press coverage of the Hillsborough disaster, as well as harassed by individual journalists and press photographers. Both of these aspects of the media's behaviour undoubtedly caused great distress. Both the Independent Press Standards Organisation (IPSO) and the Independent Monitor for the Press (IMPRESS) have developed codes of practice which – if they were adhered to - should prevent other families from suffering the harassment and invasions of privacy faced by the bereaved Hillsborough families in 1989. However, more needs to be done to ensure that this happens. I believe that there is an important role here for the independent public advocate envisaged in the Conservative Party manifesto, and that the advocate should engage with IPSO, IMPRESS, media organisations and bereaved families to determine what further steps should be taken to ensure that those bereaved by public tragedy are treated with dignity and respect by the media. In particular, I agree with Alastair Machray, Editor of the Liverpool Echo, who made the following point in his written submission to this report. He wrote: '…within my industry, as far as I am aware, no one trains journalists in specific techniques for interviewing trauma victims. This would appear to be an oversight. Both victims and journalists alike may be better served if journalists have training of this nature…'

As a further point of learning, the experience described in chapter 1 of this report should also act as a reminder to those organisations and individuals which are called upon to make public comments in the immediate aftermath of serious incidents that the public narrative, once established, is difficult to change. A false public narrative is an injustice in itself, and organisations and individuals should take great care in making public comments before the facts are known.

A fundamental point of learning from the Hillsborough families' experiences is that the state must ensure 'proper participation' of bereaved families at inquests at which a public body is to be represented. This includes inquests following a disaster such as Hillsborough, but also – for example – following deaths in custody or in some cases deaths following NHS care. There are four strands to 'proper participation', each of which are vital: I. Publicly-funded legal representation for bereaved families at inquests at which public bodies are represented. II. An end to public bodies spending limitless sums providing themselves with representation which surpasses that available to families. III. A change to the way in which public bodies approach inquests, so that they treat them not as a reputational threat, but as an opportunity to learn and as part of their obligations to those who have died and to their family. IV. Changes to inquest procedures and to the training of coroners, so that bereaved families are truly placed at the centre of the process.

Publicly-funded legal representation should be made available to bereaved families at inquests at which a public authority is to be legally represented. This could be achieved through amendments to the Ministry of Justice's Lord Chancellor's Exceptional Funding Guidance (Inquests) and should not need primary legislation. The requirement for a means test and financial contribution from the family should also be waived in these cases. Where necessary, funding for pathology or other expert evidence should also be made available. The cost of this change should be borne by those government departments whose agencies are frequently represented at inquests – including the Home Office, Department for Health, Ministry of Justice and Ministry of Defence – based on the number of inquests which in an average year relate to each department's areas of responsibility.

At the fresh Hillsborough inquests, the Home Office provided money to South Yorkshire Police to fund their legal expenditure. Importantly, however, Theresa May when Home Secretary placed conditions on the funding she provided to the police in order that it could not be used to fund legal representation more advantageous than that which was available to the families under the scheme established for them. The government should learn the lesson of this approach and should identify a means by which public bodies can be reasonably and proportionately represented, but are not free to treat public money as if it were limitless in providing themselves with representation which surpasses that available to families.

The concept of an inquest as an inquisitorial process has much to recommend it, but it was not the reality of the Hillsborough inquests, and it is not the reality of other inquests in which the narrative of events is contested. I accept that a complex or contentious inquest will inevitably become adversarial to some degree, but the experiences of the Hillsborough families – and many of the other families to whom I have spoken – suggest that this has gone too far. I believe that the point of learning to be drawn from this is that a cultural change is needed in order to tackle the increasingly adversarial nature of many inquests – and to instead imbed a culture of openness and lesson learning. To bring about this change, and in addition to my proposed charter, I recommend that relevant Secretaries of State should make clear to the public bodies for which they are responsible: That they expect public bodies to approach inquests in an open, honest and transparent way – and that defensive and adversarial strategies, or the vilification of the deceased or their families, are not appropriate. That public bodies should approach the disclosure of relevant material in an open and timely manner prior to inquest proceedings, and should not unreasonably seek to limit an inquest's scope or prevent the summoning of a jury. That public bodies should approach inquests as an opportunity to learn. As a matter of principle, public bodies should not argue against coroners producing Prevention of Future Deaths reports, as frequently happens at present. That relevant public sector inspectorates should make use of reports on the Prevention of Future Deaths in their inspection regimes. That they will hold public bodies' senior personnel – NHS Chief Executives, Chief Constables, Prison Governors and so on – accountable for the way in which their organisation acts at inquests. In addition, the highly adversarial behaviour of some lawyers employed by public bodies suggests that additional training may be required for solicitors and barristers working in the inquest system. The Chief Coroner and Ministry of Justice should work with the relevant professional bodies for the legal profession to review whether the current level of training as to the proper way for legal representatives to approach inquisitorial – as opposed to adversarial – proceedings is adequate. If it is not, it should be improved.

The use of pen portraits at the fresh Hillsborough inquests helped to put the families at the heart of proceedings. The process was vital in humanising the inquests and was both important and therapeutic for the bereaved families. In my view, the use of pen portraits is an important point of learning and the Chief Coroner should ensure that families are offered the opportunity to read a pen portrait of their loved one into proceedings at all inquests. In addition, at the recent inquests, a photograph of the family's loved one was shown while the pen portrait was being read… Allowing a photograph to be displayed is an important part of putting the family at the centre of an inquest and I can see no proper reason why a coroner should seek to prevent it. The Chief Coroner should ensure that the practice of allowing a photograph to be shown is widely adopted. At the fresh Hillsborough inquests, lawyers acting on behalf of the families proposed the use of position statements – suggesting that the Coroner require a statement to be made by each interested person as to the stance they intended to take during proceedings. The Coroner at the fresh inquests, Sir John Goldring, declined to require the production of position statements in this instance. Nonetheless, I believe that the Chief Coroner and Ministry of Justice should consider whether the use of position statements – particularly in contested or complex inquests – has the potential to make the inquest process more efficient, for example in determining which witnesses need to be called, as well as more transparent. In drawing attention to this point of learning, I caution however against the use of position statements to unduly restrict the numbers of witnesses called, since hearing the explanations and where appropriate the apologies of witnesses is crucial to those who have suffered the loss of a loved one. The Chief Coroner should also consider the creation of an Inquest Rule Committee, or advisory committee, to provide him with ongoing advice to ensure that inquest rules remain up to date and fit for purpose. The committee should draw on the experience of the rule committees in place for civil and criminal procedure, and bring together a range of experience – including legal representatives with experience of working for bereaved families. More generally, I believe there is scope for the Chief Coroner to make arrangements to hear from a wider range of stakeholders – including bereaved families – in the normal course of his work. One issue which became highly contentious at the recent inquests was the question of whether previous admissions and apologies made by public bodies should have been put before the jury. There are clearly complex legal issues engaged by this debate, and I therefore recommend that the Chief Coroner considers this issue in detail and issues guidance on the matter in due course. The Chief Coroner and Ministry of Justice have already done a great deal to improve the recruitment and training of coroners, but more needs to be done. In addition to the ongoing programme of training already planned or in place, I suggest: The Chief Coroner should make it clear that it is part of a coroner's role to place the bereaved family at the centre of proceedings. As a practical example, coroners should not describe an inquiry into the death of a family's loved one as 'my inquest'. Training should also make it clear that coroners have a responsibility to ensure that family members are treated at all times with respect and dignity. Coroners should be trained to intervene to protect family members from unfair and hostile questioning. A similar robust line should be adopted by coroners in response to attempts by legal representatives to disparage the deceased. Bereaved families with experience of inquests, including Hillsborough families, should be invited to contribute to the training given to coroners. They have a vital perspective to share. Lawyers with experience of representing families should also be invited to contribute. Finally, the Chief Coroner is due to publish guidance on the issue of disclosure. I believe that he should develop this guidance in consultation with legal practitioners, relevant charities and other stakeholders. The guidance should emphasise the importance of full disclosure by interested persons in good time prior to inquest proceedings, as well as recommending that coroners take a comprehensive approach to onward disclosure to bereaved families. In addition to the publication of effective guidance, I would support amendment of the current coroner's rules to extend a coroner's duty to disclose to families all documents 'potentially relevant to the inquest'. Currently, a higher bar of 'relevant to the inquest' is set, meaning that families and their lawyers are prevented from seeing documents to make their own assessment and submissions about possible relevance. The Hillsborough inquests demonstrate the importance of maximum possible disclosure.