UK: Police Risks At Public Inquiries

Last Updated: 13 June 2012
Article by Andrew Sherwood

Public inquiries continue to be fashionable. Cynics may say they are a good way to park a tricky issue while press interest dies down. But whether they like it or not, police forces, officers and staff are likely to be involved in a wide range of inquiries investigating issues of public concern. The police are usually peripheral to the main focus of an inquiry but, whatever level of involvement there may be, there are always significant risks.

The main purpose of a public inquiry is to provide a relatively informal means of investigating why something has gone wrong and how it can be fixed. Highly sensitive public issues usually involve some element of policing conduct or policy. Consider the high profile inquiries over recent years – Bichard, Climbié, Shipman and now Leveson. Also consider the inquiries which have had a specific police focus such as Lawrence and Morris; it is clear that police forces must be prepared to deal with the particular pressure and demands of a public inquiry which is likely to be fast moving and potentially unpredictable.

As public servants, police officers will wish to co-operate fully to achieve the aims of the inquiry. It is some consolation that civil liability is not on the agenda of inquiries and apportioning blame does not form part of the process. However, while police officers are familiar with the formalities of court process and procedure, the informality of a public inquiry can be daunting.

While a high-profile inquiry such as Leveson will inevitably attract huge daily publicity and focus on individual police officers and operational procedures, the range of types of inquiry in the public sector means that most police involvement in an inquiry is usually outside public knowledge. Inquiries may be called informally by public sector management in healthcare, social services and transport organisations, to name but a few of the agencies who may well decide to focus on policing issues. Those informal investigations are often most precarious and may leave officers in forces exposed without proper representation and consideration of the potential pitfalls.

The time and expense to be invested in an inquiry obviously depends upon the subject matter and the extent of involvement. Anticipating how a public inquiry may proceed and the types of lines of enquiry which may be pursued determines the team to represent a police force's interest. The terms of reference for an inquiry should hold the key to deciding on the level of investment.

There may be concern that a chairman may stray outside the terms of reference and pursue a different agenda to that originally envisaged. Keeping tabs on the process of an inquiry and the unravelling evidence is critical, and the legal team should always be aware of how an inquiry is unfolding. This is usually helped by the increasing use of websites to ensure public awareness and access to the inquiry evidence and progress. However, where an inquiry is informal and low profile, keeping in touch with progress depends upon co-operation with the inquiry team.

It is also worth checking the protocol for obtaining evidence, calling witnesses and the timetable for concluding stages of an inquiry. Making sure that a police force is able to submit evidence which may be relevant both to its position and to any eventual findings may be critical. Inquiries will fix their own rules of procedure, subject to any statutory guidelines which may apply, and they may well fix guidelines which could prevent relevant evidence being submitted. The degree of informality in an inquiry is often seen as its strong point and enables the panel to carry out investigations suitable to a particular issue of concern.

At the same time, that informal procedure may cause difficulties to the organisation under investigation or caught up in the inquiry terms of reference. Lawyers who are used to dealing with fixed procedure in court may find the process difficult to handle and unpredictable – advice from experienced inquiry lawyers is always a sensible option. The best advice is often to make every effort to get to know the inquiry secretarial team at the earliest opportunity to ensure a reliable line of communication and to understand what drives the inquiry agenda.

Disclosure of evidence may pose a particular challenge. Forces need to carefully consider issues of privilege and PII and the extent to which breaches of confidence and/or security may be caused by an inquiry team calling upon evidence held by a police force. Normally, evidence to an inquiry is published. Careful management not only of the evidence itself but also of the inquiry's expectations is critical to the successful representation of a police force.

Creating a team to deal with an inquiry within a police force is usually the key to a successful inquiry outcome. It may be logical to involve representatives from those departments or divisions which may be exposed, always ensuring that sufficient seniority is available to provide authority to obtain evidence and co-operation. Establishing reliable communication links with the force's media team, insurers, legal department, HR and a senior lead officer normally ensures that a team is representative and calls upon the relevant stakeholders who will not only have an interest in the outcome but will also be able to provide the logistical support as the inquiry unfolds.

A public inquiry is not expected to address civil liability. However, the outcome of the inquiry and the recommendations produced in its final report inevitably focus upon actions, conduct or policy and where there may have been lapses or failings which need to be addressed. It is always crucial to respond to the questions raised by the inquiry team during the course of the inquiry and also to consider the final draft report to establish whether any particular issues need to be addressed either with the inquiry team or in terms of PR.

Inevitably, issues raised during the inquiry may impact upon civil claims or criminal allegations. Once again, the involvement of lawyers and the need to carefully consider potential issues will need careful consideration.

Summary

The simple fact is that as public servants police officers will wish to co-operate fully to identify where issues may have arisen in serving the public. Managing the supply and form of evidence is critical to successful participation in a public inquiry. Public servants doing their utmost in their roles deserve to have their voice heard and their contribution made. The inquiry procedure is intended to help with this process but risks in relation to disclosing evidence need to be carefully addressed. Working closely with the force's legal team and insurers may be critical to the successful outcome.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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