Representing a state actor at inquest where the family is unrepresented: Keeping doors open, and doing no harm
“You can’t make it better, but you can make it worse for the bereaved” ought to be the mantra for every barrister representing a public body at an inquest.
No two unrepresented families attending an inquest are the same. As the representative of a state actor who has played a part in the death, your first task on arriving at court should be to seek out the family and get a sense of what, if anything, you may usefully do. Some basic humanity should go a long way. Introduce yourself and use your first name. You might offer condolences – your own if you don’t have instructions from the client, or express regret that family members find themselves at their loved one’s inquest (because whatever your client’s position on responsibility for the death, recognition that there is a bereaved family here is due). A sincere apology (that is one that actually identifies what the state actor is saying sorry for) can often make things better. But sometimes family anger cannot be diffused and unwanted sympathy from you adds to distress. Do not be surprised or if your approach does not appear welcome: just respect their indication.
You could inform the coroner at the outset of the hearing that everyone you represent offers their sincere condolences, and no one wishes to cause offence. But keep in mind that some family members may experience this as insincere, corporate grandstanding for the benefit of the press. A quiet, private and genuinely heartfelt word before the hearing begins will usually be preferable if the state actor is to make a public statement later on.
Explain that you can’t give the family advice, but that you are always available if they have any procedural questions. If they want help, give them the nuts and bolts of the procedure in simple terms – most will be bewildered to be caught up in a world of courts and lawyers at a time when they may still need to grieve. Some unrepresented families will have specific questions, but many don’t know what they don’t know. If they seem lost, then check: do they know the purpose of an inquest and about the four questions? Do they understand how it differs from a trial? Do they have information about the likely available conclusions? If this appears new to them, offer to explain again about conclusions at the end of the evidence so they aren’t overwhelmed.
If there’s a witness list, you might offer to take them through it and tell them who is who and who represents each person. Explain the order of questioning. Let them know that if they don’t want to ask their questions themselves, the coroner can do that for them.
Advise your own witnesses to answer questions with the family in mind: thoughtfully, openly, in a simple and straightforward way. If family questions seem irrelevant or repetitious, answer fully anyway – it matters to the family - and explain a different way.
It’s not unusual for an advocate’s presentation to be affected by the client’s desire to avoid a certain conclusion and/or a Prevention of Future Deaths report (PFD). If you feel that happening, refocus on the fact that the family is at the front and centre of the process. Your client will not be helped if the family walks away feeling that what happens at an inquest is that clever lawyers obscure the truth and help professionals avoid reputational damage, or feels marginalised or stonewalled. Your role is to promote an inquisitorial hearing that feels fair, provide the coroner with reliable evidence that informs the answers to the four questions, and assist the court with the law.
Keep your own questions to an appropriate length. Deal with contentious topics in a way that is aimed at getting to the truth, not scoring points. If different points of view or conflicting factual accounts need to be tested, that can be done without making an unrepresented family feel that an inquest is a bewildering process, conducted by unaffordable lawyers, who use baffling concepts and legal language to slant the evidence in order to avoid reputational or financial damage to large or unaccountable organisations.
Manage your own client’s expectations by advising them to expect a PFD report, if one is due, and to approach that as a positive and not a punitive thing. After all, any responsible organisation should welcome a judicially provided learning opportunity that makes the public safer. If the coroner has completely misunderstood the PFD circumstances and no action is necessary, then explain simply and neutrally why this is the case and remember that this can form part or all of the written response later. The coroner’s conclusion records what happened, but a well-considered PFD report looks to the future and brings the promise of real change. For many unrepresented families, feeling confident that they have helped ensure that no one else goes through what they have gone through is a, if not the, point. Avoiding harm, being courteous, open and available, and aiming to promote opportunities for family healing where possible, may be the modest but hard to attain goals of advocates for state actors.