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A duty borne from tragedy

The ‘duty of candour’ might be otherwise described as a duty to be transparent, open and honest. We have had a similar duty in respect of medical professionals since 2014. In the medical sphere, when there is a ‘notifiable safety incident’ (in broad terms – when things go wrong which possibly should not have) medical professionals are under a duty to explain what they know and issue an apology as soon as reasonably practicable to the patient and/or their family, notwithstanding that an investigation might be ongoing.

The medical duty of candour was borne out of a background of tragedy. First there was the case of Robbie Powell, a 10-year-old boy who died on 17 April 1990, following numerous failings at the hands of the various medical professionals who saw him. Most shocking was the clear attempt at covering up those failings after the young boy’s death. Appeals from an acquittal of those involved in Robbie Powell’s care resulted in his family petitioning the European Court of Human Rights, who commented on the lack of legal duty by doctors to tell the truth about what had happened, or even refrain from falsifying records.

That lack of duty was exposed again during the Francis Inquiry into the series of failings by North Staffordshire Health Trust. The inquiry report published in 2013 recommended a statutory duty of candour for the medical profession. In 2014 that recommendation was followed for NHS trusts and in 2015 was extended to all other healthcare providers.

Arguments for a police duty of candour

The second Hillsborough Inquest, concluding in 2016, thrust the police into the limelight. The jury found a catalogue of police failures – but it escaped nobody’s attention that it had taken over two decades to reach that point. A number of lawyers produced draft legislation to ensure that there would be a statutory duty of candour for all public authorities – the ‘Public Authority Accountability Bill’, or the ‘Hillsborough Law’.

Against this backdrop, the Right Reverend James Jones published his report in November 2017 (The Patronising Disposition of Unaccountable Power: a report to ensure the pain and suffering of the Hillsborough families is not repeated). At 2.106: Point of learning 13 – ‘The Hillsborough Law’ he commended the Bill and commented that a duty of candour for police officers was the ‘clearest and best next step’ towards the wider duty of candour.

Other voices joined the argument for a police duty of candour. On 15 June 2021 the Daniel Morgan Independent Panel published its report into the tragic and mysterious killing of private investigator Morgan, axed to death in a public house car park in 1987. The panel reviewed allegations of police misconduct in the investigation of his death. Its report recommended a statutory duty of candour for all law enforcement agencies and was debated in Parliament on 22 June 2021.

On 6 December 2023 the Code of Practice for Ethical Policing was laid in Parliament under s 39A of the Police Act 1996, containing a new duty of candour for police. The government did not adopt the full ‘Hillsborough Bill’ to apply to all public authorities; it signed the non-statutory ‘Hillsborough Charter’ instead.

The new duty – and impact on inquests

The duty of candour is set out in the Code of Practice for Ethical Policing at para 4.5 and includes the duties to:

• approach ‘public scrutiny’, which includes inquiries and inquests, with candour – including disclosure of relevant documents, materials and facts;

• support and encourage colleagues to be open and candid;

• put public interest ahead of personal and organisational concerns.

The starting point for disclosure to inquests is whether material is relevant to the coroner’s inquiry. Interested persons are not generally under a legal duty to disclose material unless expressly required to do so by the coroner; inquests are very much predicated on a spirit of cooperation. Discussions take place between the coroner and legal representatives before the inquest hearing in an effort to collaboratively identify relevant material.

However, this is subject to an important caveat. The coroner has powers under Sch 5 of the Coroners and Justice Act 2009 to compel the production of documents or the giving of evidence. The respondent is entitled to object on the basis that a) they are unable to comply; or b) it is not reasonable in all the circumstances to require them to comply. What is unreasonable may vary from case to case but could include arguments around legal professional privilege.

The duty of candour in respect of medical professionals focuses on the duty to be open, honest and transparent with ‘service users’ – i.e. patients and their families – with no explicit duty in relation to inquests. The difference may be academic; if medical professionals are open with the family of the deceased, the family might well bring that information to the coroner’s attention. The latter can then seek the relevant information directly from the medical service provider.

The duty of candour in relation to policing goes a step further, however. It places a specific requirement upon organisations and individuals to approach ‘public scrutiny’ – including inquiries and inquests – in an open, honest and transparent way, ‘making full disclosure of relevant documents, material and facts in order to assist the search for the truth’. Thus, police organisations will not be under any illusions as to their obligations to disclose relevant information, whether the coroner explicitly asks or not. The coroner need not rely upon the matters being brought to their attention by happenstance: once it is clear to the police that a piece of information is relevant to a coroner’s inquiry, the coroner should be able to rest assured that they will disclose that information.

Breaking the culture of silence?

The effect of this new duty of candour in practice remains to be seen; it is barely in its infancy. The requirement to disclose relevant information to a coroner may help to ease public concerns about a culture of silence within the police. Those individual officers who do raise concerns may find comfort in the knowledge that they are supported by the law. As an institution the police can point to the duty to demonstrate their willingness to learn from past failings. Those representing the family and police alike would be well-advised to be familiar with the new duty and how it might impact their client’s interests.

It will be interesting to see whether we do now notice an increased raft of disclosure from police to coroners in years to come. Only then can we truly gauge the extent to which a statutory duty of candour for police has heralded the change it so enthusiastically promises. 

The College of Policing laid the Code of Practice for Ethical Policing before Parliament on 6 December 2023 under s 39A of the Police Act 1996, and launched a complementary non-statutory Code of Ethics in January 2024.

Article published in Counsel Magazine here.