| Ashworth Special Hospital: Report of the Committee of Inquiry | |||
APPENDIX 2 The Inquiry Process The Inquiry Process 1. Every Public Inquiry is likely to raise a number of challenges for its Chairman (together with his/her Legal Team and Secretariat) in formulating the most appropriate procedures to adopt. 2. Some of the factors which will affect the way an Inquiry proceeds include the fields within which it is commissioned to undertake its investigations; the breadth of its terms of reference (for example, whether it is simply required to make findings of fact as to what went wrong in a given situation, or whether broader questions of public policy are to be considered); and the degree of likelihood that serious and damaging criticisms of individuals may be made. 3. Whilst the procedures adopted for one Inquiry may not be appropriate in every case, those responsible for setting up and running one such as this may well derive some assistance from our experiences. 4. We have therefore invited Counsel appointed to this Inquiry to set out some of the elements of the process which were found to be important, or helpful, or challenging. Setting up the Inquiry Chairman and Panel 5. The success of an Inquiry of this nature, the making of definitive recommendations which will stand the test of time, and the persuasiveness of its conclusions will crucially depend upon the quality of those appointed. 6. A feature of Inquiries is the absence of a body of formal precedent laying down strict procedural rules. Accordingly, if the margins of the Inquiry are not made sufficiently clear at the outset, and the authority of the Chairman is not stamped upon the process at a very early stage, there is ample opportunity for it to become bogged-down with the submission of a mass of material of marginal relevance, and for parties and witnesses to seek to divert the attention of the Panel onto their own preferred agendas. Consequently it is essential that a Chairman has the ability to keep a firm hand on the proceedings and to enforce the rules adopted to govern its conduct. 7. It is also essential that the Chairman is involved from the outset in identifying the sources of information to be tapped and the lines to be pursued. He will then be best able to have a clear oversight of the early stages of the process, and to give a clear lead to his Secretariat and Legal Team in order properly to prepare for the task of addressing the Terms of Reference. 8. A successful inquiry depends very largely upon good teamwork between members of the Panel, and between the Panel, its legal team and the secretariat. At times it can be a stressful experience spending long periods together in the context of a job which carries with it heavy obligations - marshalling vast volumes of evidence; the assessment of witnesses who are variously vulnerable, nervous or highly expert; understanding and considering how to improve complex human management systems; and challenging those who simply wish to maintain the status quo rather than look for a better way. Secretariat 9. The preparation for and smooth running of an Inquiry depends upon a Secretariat who have excellent organizational and administrative abilities, together with a confident grasp of all the issues. Intelligent advice to the Panel and a knowledgable approach to the subject in hand is invaluable, as is a high level of interpersonal skills. The Legal Team 10. It is important for Counsel and Solicitor to be involved at an early stage. 11. A huge amount of preparatory work will be necessary. Counsel must therefore
be fully committed to the process. A close liaison with the Chairman and Secretariat is
important from the very beginning since independent advice on the shape and direction of
the Inquiry may be helpful, and it is at this stage that the Inquiry procedure must be
drawn up, "Salmon 12. The Solicitor must also have the ability to grasp the issues as quickly as possible; he must be skilled and efficient in taking statements from potential witnesses and in organizing and marshalling material so that it is collated and presented clearly for use later on. This will avoid embarrassment later. Preparing the Way for the Oral Hearings Terms of Reference 13. These will have been drafted and will form the basis of the Panel's remit. However, there is a preliminary question that may arise as to how widely or narrowly they should be interpreted. This is important to decide, because it will determine how extensive the trawl for evidence should be and identify the range of witnesses who should be called. 14. In the case of this Inquiry the Terms of Reference covered not only an investigation of the problems that had arisen at Ashworth on the Personality Disorder Unit but also questions of the appropriate clinical care and security provision for this group of patients. The Panel recognised that this raised important and far-reaching questions that which had not been adequately addressed in the past, still less satisfactorily resolved, and that there was a need for an authoritative conclusion about the appropriate provision of services for the future. They were exceptionally well-qualified to examine this, and therefore the Terms of Reference were interpreted widely in order to confront the problems comprehensively. Powers 15. The authority upon which the Inquiry is established is an important factor to bear in mind. This Inquiry was a statutory Inquiry giving it considerable powers. 16. Thus under Section 84 of the National Health Service Act 1977 there was a power to require persons to attend to give evidence and produce documents, and a power of imprisonment for refusal to do so. 17. On one occasion we found that it was necessary for us to draft a Subpoena Duces Tecum with a view to issuing it in the Crown Office, but the notification of this to the witness in question proved a sufficient incentive to persuade that witness to produce documents which had until then been withheld on the basis that they had been private and confidential. 18. The other areas in which the extent of our powers came into question involved the handling of press reporting, and the disclosure of documents, names of witnesses, and of transcripts of witnesses' testimony. Each is dealt with below. Gathering the Material 19. The principal source of material here was Ashworth Hospital itself. It was necessary to set up a team there to gather the vast bulk of documentary material, and the Hospital obliged in that task. 20. Some difficulties arose because it appeared that not everyone in the Hospital was prepared to comply with the requests for disclosure of all documentation concerning the PDU. It is important that all potentially relevant material is gathered. The price to be paid for this, however, is that the decision on the actual relevance must be for the Panel, albeit that much of this can be delegated to the Legal Team. 21. A mammoth task ensues in numbering, cataloguing, indexing, copying, distributing, and filing the material. In our case the images were also scanned and put on CD-ROM, with character recognition undertaken as well for future wordprocessing. Parties and Representation 22. It is necessary to try to identify as soon as possible who has an interest in appearing as a party at the Inquiry, with the opportunity where appropriate to cross-examine witnesses. Some will be obvious. Others only emerge on consideration of the material as it emerges. 23. Ashworth Hospital itself, in addition to being a party, arranged for its Counsel to represent the interests of various employees. It also funded separate representation for the former Chief Executive, Mrs Janice Miles. 24. The Unions had an important part to play. The Royal College of Nursing and UNISON were represented. The Prison Officers Association chose on this occasion not to be represented but did appear through their officers. The interests of two individual nurses were represented by Counsel on behalf of the RCN. 25. The representation of two Consultants was arranged by their medical defence organisation. 26. We also took the view that it was important for the patients as a group to be represented by one firm of Solicitors and Counsel. This was not in response to any application but as Counsel to the Inquiry we were concerned that their interests would not otherwise be adequately protected. 27. It may be necessary for a party to be represented for part only of the Inquiry hearings. In a number of instances representation was granted on a limited basis. 28. In a few cases a scheduled witness who was not a party asked for a legal representative to be allowed to assist and support them. In these instances their representative was not given a right of audience but was permitted to advise the witness as necessary. Their representative also had access to Counsel to the Inquiry in case there was a need to raise any important matters which had been omitted. Funding 29. Where there was no organisation or body providing funding for legal representation it was proper for legal costs to be met from the public purse. These applications were considered on paper by the Chairman on a case by case basis on their merits. 30. Some applications were granted before the first preliminary hearing. Others were only made at that stage. Analysing the Material 31. The problem with thousands upon thousands of pages of material is that you can become blinded by the storm. The only way this can be managed is by a process of methodical reading and analysis, which takes a considerable amount of time on the part of those involved in the preparation of documents to be used and disclosed to parties. The Criminal Investigations 32. The Merseyside Police were carrying out an investigation into various aspects of what had allegedly taken place on Lawrence Ward. In particular they were concerned with possible child abuse. This meant that various witnesses and potential witnesses were concerned as to whether they might be subject to prosecution. There was accordingly some reluctance to give statements to us. 33. It also meant that if those witnesses were called before any decision had been made about prosecution we might be faced with witnesses refusing to answer questions on the ground that they might incriminate themselves. 34. This was one of the reasons which led to a decision to deal with the second, general part of our "Terms of Reference" first. 35. Unfortunately the submission of the Police File to the Crown Prosecution Service took longer than expected and then there was a substantial delay in the CPS making a decision about whether there should be any prosecutions. However, when we could wait no longer and a decision by the Crown Prosecution Service was still awaited the Police co-operated with us by showing us the witness statements they had taken. This was at a time when our first hearing was well under way. 36. Out of an abundance of caution those Police Statements were initially read only by Counsel to the Inquiry who advised upon the additional witnesses who should be approached to give evidence. When those witnesses raised no legal objections to appearing and answering questions their Police Statements were disclosed. Procedures 37. Our main proposed procedure was published prior to the first preliminary hearing. A further set of procedures was produced before the hearings commenced. Both are attached below. 38. We were concerned to achieve expedition and fairness. We bore in mind however that the inquisitorial process is quite different from the adversarial. 39. Statements would in the main stand as a witness' evidence. There could be clarification or amplification. 40. Cross-examination by a party would only be allowed if it was demonstrable that the party was adversely effected by the evidence. 41. We took the view that all evidence was to be given on oath or affirmation rather than having to try to distinguish between various categories of witness. No-one expressed any objection to this. 42. We included a provision enabling the Committee to alter its procedures in the light of experience should that prove necessary. This (a) enables sensible modification to be made and (b) avoids anyone trying to seek Judicial Review on the basis that the Committee is not following its own procedures. "Salmon" Letters 43. These are, and will continue to be, a source of difficulty. Sir Louis Blom-Cooper pointed out in his report into Ashworth Hospital the many problems that can arise with them. They should only be issued where there is a strong case for potential criticism. 44. They may cause heightened anxiety in recipients which may endure for a long time until the report is published. 45. Again, as Sir Louis concluded a Committee may feel it right having considered all the evidence to criticize someone who has not received a Salmon letter, and the Committee should not refrain from doing so. 46. We tried to restrict the sending of such letters to the central figures and tried so to frame them as to make it clear there had been no prejudging of the issues. Thus they consisted of a series of questions on the subjects which particularly affected that witness. An example appears at the end of this Appendix. 47. It is also important to emphasise that these letters should not be regarded too technically or precisely. They are not pleadings. The letters were not disclosed to other parties since they had no significance in themselves as Inquiry documents. Distribution of Documentary Material and Statements to Parties 48. Many of the documents contained sensitive material. While it was in the main desirable for parties to have access to this material, there were sound reasons for restricting its further publication. We required written undertakings from parties to use the material and statements solely for the purposes of the Inquiry; not to disclose these to anyone else and to return them at the conclusion of the Inquiry. In certain cases a request was made to disclose particular documents to a Third Party who was preparing a potential witness statement for submission to the Inquiry on behalf of one of the parties. In such cases the Third Party was asked first to sign the Undertaking themselves. A copy of the Undertaking appears at the end of this Appendix. 49. A further complication arose in relation to providing access to the confidential clinical notes of certain patients to professionals whose clinical judgements were in question. The Hospital was properly anxious to ensure that any sight of those clinical notes was correctly authorized. (Those notes had been provided for Professor Bluglass (the psychiatrist on the Panel) to view.) The matter was resolved by the Chairman making an Order that the Hospital give access to those notes to the clinicians in question and their legal representatives for the sole purpose of use in the Inquiry in order to deal with clinical decisions which they had made concerning those patients. 50. We sought to obtain, or invited submission of, statements from all potentially relevant witnesses. These were kept confidential until decisions had been taken on which should be called. 51. Similarly a party would not be provided with other parties statements until he or she had submitted a statement. This was because there were obvious potential conflicts between certain parties. LiveNote 52. The LiveNote computer-aided transcription system was of immense value. Skilled stenographers produced a very accurate real-time transcript which saved a huge amount of time and energy. The corrected transcript was available each evening in paper and "ASCII" format on disc. 53. This was a necessity for a Inquiry such as this. It enabled searchable annotations to be made instantaneously, and text could be highlighted in relation to identified categories of issues which would have to be revisited later with other witnesses. Excerpts, and reports of all the evidence on highlighted issues, could be printed out later at will and incorporated into draft documents. 54. One matter of interest which arose was the public availability of the transcript. Leaving aside questions of copyright which we did not enter into, there was concern that some parts of the evidence would be seen by patients at the hospital involving contested testimony about the professional standards of individuals who were still working with them. In one instance it was felt essential that individual clinicians' names should be replaced by code letters, but otherwise the transcripts reflected the real identities. Document Scanning 55. Disclosed documents and statements were scanned into CD-ROM format. This was accessed through the "Concordance" and "Opticon" Programs. 56. Relatively speedy display of these images on large computer screens for witnesses and the Panel during the hearings was enormously helpful since it saved searching for and manhandling the hard copy by each of the Panel members and witnesses from amongst the huge numbers of files of documents. The Hearings Preliminary hearings 57 We held two preliminary hearings on 7 August and 10 October 1997. These were essential to deal with the host of preliminary matters including procedures, timetabling and any unresolved matters of representation. They also concentrated the minds of parties on the task ahead. Venue of Hearings 58. It is important to have a good spacious room with temperature control and satisfactory acoustics; numerous power points for computers; decent conference and storage rooms; facilities for the media; proper refreshment facilities; and good security. Ideally these hearings should be held in a dedicated room to reduce the necessity to move documents and equipment frequently. Sitting Arrangements 59. We decided to sit for four days a week rather than five. This proved to be an excellent decision. It enabled participants to manage other professional commitments which would otherwise have been impossible during a long hearing. A good deal of valuable preparatory work was also done on the "spare day". 60. We also sat in three sessions of up to seven weeks each. Some panel members would not have been able to serve but for these breaks due to their other commitments. It was also found to have the advantage that each session could be approached with renewed energy and enthusiasm. Keeping to the timetable 61. It is very important to prevent the hearings gathering a momentum of their own and thereby upsetting the predetermined timetable. This is always a potential problem in the courts and can be prevented by firm control of proceedings. It therefore helps if the Chairman has judicial experience. 62. One modification we did make proved to be of great benefit. In order to ensure we kept reasonably to our timetable we introduced a system of allocation of time for parties to cross-examine. 63. Each representative put in a "bid time" for each witness. These were considered by Junior Counsel to the Inquiry who gave a provisional allotted time, subject to the Chairman's discretion. The Chairman also occasionally used his discretion to increase time allocations, according to the circumstances. 64. Although initially this system was not greeted with a warm embrace, after a while everyone appreciated its value and it undoubtedly concentrated the mind and improved cross-examination techniques. Press Reporting Restrictions 65. An Order was made by the Chairman prohibiting publication of any material leading to the identification of Child A the child who visited Lawrence Ward. Some may argue there was no power under section 39 of the Children and Young Persons Act 1933 to do so as the Inquiry was not "a Court". Nonetheless the press respected this and it is arguable there was an inherent common law power to make such order in any event. The child's identity was obviously protected in relation to the allied care proceedings that had been determined against her father. It may also be arguable that under the amended Schedule of offences covered by the Sexual Offences (Amendment) Act 1992 the Press were in any event prevented from such reporting, whether or not an Order was made. 66. A further Order was made later on in the Inquiry by the Chairman when it transpired that patient witnesses who were still at Ashworth and whose testimony we were anxious to hear stated that they would decline to participate voluntarily in the proceedings if their names were released and published in the Press. The reason they gave was that their index offences were notorious and they had been unfairly pilloried in the past by certain sections of the Press on the basis of inaccurate leaked "stories" which had caused their families and themselves considerable suffering. They had no faith in sections of the Press fairly reporting complaints that they might have of the system or their treatment in the light of their index offences. In order to secure their evidence, an Order restricting the publication of their true identities was therefore made by the Chairman under what was considered to be an inferred and inherent common law jurisdiction to regulate the procedure of the Inquiry. This fell into a similar category to the anonymity provided to the victims of blackmail who give evidence in criminal trials. Some of the Press informally but vigorously queried this Order, but no formal challenge was mounted, and it was respected. Final Submissions 67. We firmly concluded that it is wholly inappropriate for a public Judicial Inquiry, where the parties are properly represented by Counsel, and where "Salmon" type letters are served in good time, to distribute sections of its Draft Report and Conclusions to the persons affected by them for their comments and observations. A number of other recent Inquiries where this has been done have come to our notice in which Chairmen have felt constrained to re-open or re-convene their Inquiries in order to revisit their conclusions and hear complaints from parties about them. This has in some cases led to enormous delay in producing the final report. The purpose of a public Judicial Inquiry is to hear evidence, to test it critically, and to reach conclusions upon it. 68. The procedure which we considered most appropriate was to provide for succinct final submissions, those to be in writing and supplemented orally. We limited the number of words in the written submissions (which varied from party to party) in order to keep these to the principal points. A copy of our notice appears at the end of this Appendix. This was not welcomed by several parties, but it is a practice adopted increasingly often in the case of appeals in the court system. In fact it proved itself to be an admirable tool to obtain the parties' main points, and concentrated minds well. Seminars 69. Seminars have become a fashionable adjunct to judicial inquiries. We held three in all. We found them valuable in that they allowed the Panel to test their preliminary thinking. Seminars also have the advantage of allowing the Panel to hear the views of a much larger group of people than could possibly be called to give evidence.
PETER BLAIR PRESS NOTICE CHAIRMAN: His Honour Peter Fallon QC SECRETARY: Tim Baxter, Room 649, MEMBERS: Professor Robert Bluglass CBE Wellington House, Professor Brian Edwards CBE 133-155 Waterloo Road, Mr Granville Daniels London SE1 8UG
COMMITTEE OF INQUIRY ANNOUNCES ITS INTENDED PROCEDURE The Committee of Inquiry would like to make a number of preliminary remarks about the legal aspects of the forthcoming Inquiry hearings. First, this is an Inquiry and not an adversarial trial. It is for the Committee of Inquiry to determine how it will proceed. Any person who considers that he or she has relevant information should write to the Secretariat at the above address. It will be for the Committee to decide whom to ask to give evidence. Any party may apply to the Committee to call a witness. Any application should be in writing to the Secretariat giving the name and address of the potential witness, together with a statement setting out the evidence. The Committee of Inquiry hopes that everyone will regard it as important to assist their work. The Committee will ensure that witnesses are given proper consideration and will only allow such examination as in its view is of help in ascertaining the truth of the matters under investigation. Questions simply directed to the issue of credibility will not normally be permitted. The Committee will grant patients within the Personality Disorder Unit representation at public expense. However, the Committee intends to limit this representation to a single firm, save where there is pressing reason to grant a particular patient individual representation. Procedure at the Hearings Statements of proposed witnesses will be supplied to legal representatives in advance. The Committee may decide that such statements shall stand as the witnesses' evidence, with Counsel to the Inquiry merely asking questions to amplify or clarify certain areas. In relation to some witnesses, however, it may be desirable for their evidence to be given in response to questions by Counsel to the Inquiry. Those parties granted legal representation may then be given an opportunity to examine the witnesses further. This will be subject to constraints already outlined and must be confined to matters affecting those whom they legally represent. Counsel to the Inquiry may re-examine witnesses. This may not be limited to matters arising out of further examination, but the Committee may give leave to other parties to ask further questions on fresh matters raised if it considers it necessary. Where a witness is legally represented his or her Counsel will examine first. The Committee may decide that a witness' statement shall stand as his or her evidence. Other legal representatives may then examine the witness provided that they restrict their questions to matters affecting those whom they legally represent. Questioning of witnesses should be conducted with reasonable brevity. The Committee will ensure that matters proceed at a proper pace. All evidence will be taken on oath or affirmation. The Committee will determine what it regards as relevant. Hearsay evidence will, if relevant, be admissible, but of course will generally be of less weight than direct evidence. There will be no closing address by Counsel to the Inquiry, but legal representatives are invited at the conclusion of the evidence to put in written submissions. The Committee may invite short oral submissions in addition if it considers it desirable. The Committee proposes that the hearings will be held in public unless reasonable grounds are advanced for any particular part of the evidence to be given in private. There will be facilities available for the media at the preliminary and full hearings. The Committee will make further statements concerning the procedures to be adopted at the Inquiry hearings in due course. The Committee reserves the right to alter its procedures in the light of experience, should this prove to be necessary. 17 October 1997 FURTHER DIRECTIONS ON PROCEDURE 1. UNREPRESENTED PARTIES If having received a statement from an unrepresented party, the Tribunal decides to call such a witness, he/she will be examined by junior counsel for the Inquiry. Any necessary cross-examination of such a witness will be conducted by leading counsel for the Inquiry. 2. REPRESENTED PARTIES If having received a statement from a party represented by a solicitor and/or counsel, the Tribunal decides to call such a witness, his solicitor or counsel will be permitted to examine him/her in chief. 3. CROSS-EXAMINATION Cross-examination of other parties will only be permitted if their evidence demonstrably adversely affects the evidence contained in the written statement of parties who seek leave to cross-examine. This principle will be used by the Inquiry in exercising its discretion to allow counsel/solicitors representing other interested parties to cross-examine. Counsel for the Inquiry may cross-examine represented parties. 4. RE-EXAMINATION If it is necessary witnesses may be re-examined by their counsel/solicitor. 5. WITNESSES ON BEHALF OF A PARTY If a party wishes a witness or witnesses to be heard, then a statement of such a witness's evidence must be produced, or that witness's statement will be taken by the Solicitor for the Inquiry. If, in its discretion, the Committee decides that such a statement contains evidence which may be material, then if the party is unrepresented, such evidence will be called in chief by junior counsel for the Inquiry, or by the solicitor or counsel for a represented party. 6. HEARSAY EVIDENCE The rule against hearsay evidence will not apply, but in practice the Committee will give very limited weight to hearsay evidence for the purpose of arriving at any adverse finding against anyone appearing before it. 7. OPENING STATEMENTS After counsel for the Inquiry has made an opening statement, the solicitor or counsel for represented parties may, if it is deemed necessary, make a statement, limited in duration to 10 minutes, referring to a particular point or a document so as to put the case in an entirely different light, and go far to mitigate the effect on the public of any criticism made in opening by counsel for the Inquiry. Peter Fallon SAMPLE "SALMON" LETTER The Committee of Inquiry has identified the following particular areas which it is interested in examining from the point of view of your role as.......at Ashworth Special Hospital. It wishes to hear evidence from you on...... Other matters may emerge, but we wish to provide you with an indication of the following issues in advance of your giving evidence so that you may be the better prepared to help us with them. Was there a policy about child visits on PDU wards? What was your involvement in relation to decisions concerning the visits of the child of a former patient who was visiting the PDU? What part did you play in relation to permitting such visits? When that child was still visiting the PDU, which patients were you aware had contact with that child? Did you speak with any of your colleagues, nurses or other clinical staff, about your knowledge of contact between patients and the child? What part did you play in relation to the continuation of such visits? What supervision was being provided for such visits? Was it conscionable for this child to be able regularly to visit Lawrence Ward amongst paedophile patients, and to visit without proper supervision? Was the matter ever considered/reported as a "child protection" issue? Did you have any contact with the Bradford Social Services Department who were concerned with the child? If so, what was the nature of your contact? If not, why not? Were the child's interests in visiting the PDU regarded as the paramount consideration, or were other factors involved? If so, what were the other factors? Did you read, or hear of, the concerns expressed in the Lawrence Ward Staff Meeting Book (Inquiry document - C44)? What actions did you take to respond to them? Are there alleged incident(s) and/or concerns which have been expressed about any other child visitors to the PDU of which you have been aware? If so, what are the nature of these and what has been your involvement? UNDERTAKING WE UNDERTAKE not to disclose or pass on, to any third party the material supplied to us by the Inquiry Secretariat or any of the information contained within that material. WE FURTHER UNDERTAKE to ensure that the material and information supplied to us is used solely for the purposes of this Inquiry, and at the conclusion of the Inquiry to return all the material and any copies of it to the Secretariat. Signed :- ..................................................................... For and on behalf of :- ............................................... Dated :- ..................................................................... FINAL SUBMISSIONS TO THE FALLON INQUIRY In writing: Each represented party will be entitled to provide any final written submissions to the inquiry subject to the conditions set out below. If parties do not fulfil these conditions they will not be accepted and will not be read. (1) The submissions shall be limited to the numbers of words indicated separately to each party. (2) 8 (eight) copies shall be delivered to the Secretariat's Office by Wednesday 24 June 1998 at the very latest, and will not be read if received later. (It would also assist if a copy could be provided in a version of "Wordperfect" on floppy disc). (3) They shall be printed on A4 paper, already hole punched, double spaced, and in a font of at least 12pts. Oral: Principal parties' legal representatives may also be invited to appear before the Inquiry Panel to make a 10 (ten) minute, strictly time limited, oral persuasive presentation of their case. Junior counsel to the Inquiry will notify those who are so invited. The provisional date for this will be the morning (only) of 6th July 1998 in London, and will be a public session.
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