The Duty of Candour: a level playing field?
Bill Dunkerley
18/07/2019

When Andy Burnham, then MP for Leigh, proposed a statutory duty of candour back in 2017, he no doubt hoped progress might now have been made. His draft Bill, prompted by his involvement with the Hillsborough families, would require public authorities to admit responsibility following adverse incidents, even before court proceedings have been intimated. Put on hold following the snap General Election, the process has been reinvigorated by the tragedy at Grenfell and the drive towards public accountability pressed by regulators including the Care Quality Commission.

What is proposed?

The Bill addressed a groundswell of opinion that there was an uneven playing field, between bereaved families on the one hand and well-resourced public authorities on the other. There was additional disquiet that, despite the extent of investigations prior to the second Hillsborough inquest, neither the coronial nor criminal justice system had been able to reveal the cover-ups which subsequently came to light.

The draft Bill proposes a statutory duty of candour, which would require public authorities, public servants and officials to:

  • act at all times in the public interest and with transparency, candour and frankness;
  • assist court proceedings, official inquiries and investigations where their own acts or omissions are (or may be) relevant; and
  • disclose information which may change the scope of any proceedings, inquiry or investigation.

‘Public authority’ is given an inclusive definition and is proposed to include, “any national or local government department… institution or agency engaged in functions of a public nature… [this] includes entities with a private structure but which are majority owned by public funds.”

What about failure to comply?

Chief Executives of public authorities will commit a criminal offence, punishable by a fine and/or imprisonment if they fail to meet the duty.

Public servants also commit an offence if they intentionally or recklessly mislead the general public, the media or proceedings. They will equally be guilty if they hinder their authority’s compliance with the duty.

Other proposals of note

The Bill also suggests bereaved families and ‘core participants’ at inquiries and inquests be entitled to publicly-funded legal assistance and representation at the same level, or in proportion to, the resources provided to the public authority.
What could this achieve?
When introducing the draft Bill, Any Burnham summarised the motivation as “simple”. “It [is]…to protect other families from going through what the Hillsborough families went through and from a similar miscarriage of justice. It empowers victims to secure disclosure of crucial information and prevent public authorities from lying to them or hiding the truth by making that an imprisonable offence… it creates a level legal playing field at inquests for bereaved families so that finally inquests become what they should always be – a vehicle to get to the truth.”

When can we expect a change?

Introduced in 2017, the Bill’s progress was thwarted by the dissolution of Parliament for the General Election in May of that year.

However, the Law Commission is currently considering reform of the offence of Misconduct in Public Office and anticipates discussing the duty of candour in its final report, due in autumn 2019.

Comment

The Bill does not define “candour” and the precise scope of any new duty remains unclear. Certainly we would not expect any duty to require criminal suspects to make admissions prior to appearing before the Court; that would undermine the criminal justice system.

Interestingly, whilst the emphasis is on public authorities, the proposed duty would also apply to private organisations where their activities are delegated or contracted to them by an organ of the state, or where they have a health and safety obligation to the public.

Questions will also arise as to the tension between the requirement for candour and the right to silence in the criminal process. Where someone reasonably asserts that right, the draft Bill suggests they will not be guilty of lacking candour. However, the idea that any assertion of the right of silence will be subject to third party scrutiny is seismic to say the least.

The proposal to extend legal assistance to bereaved families is likely to receive widespread support. However, the very significant cuts to the legal aid budget in recent years begs the question: where will the money come from?

Interestingly, the Bill also proposes a limit on the legal spend of public authorities in responding to inquests and inquiries, the logic being that the requirement for them to ‘come clean’ at the outset will reduce the length of investigations and thereby ensure costs savings for all. Any such limits may however fetter the ability of public authorities to fully and properly articulate their case when responding to investigations.

In addition, of the organisations which have to date voluntarily accepted responsibility in the immediate aftermath of adverse incidents, there has been little acknowledgement of their acceptance or explicit reduction in fine imposed.
Sentencing Guidelines for health and safety offences are stated to be punitive and designed to send a message to shareholders and can therefore be seen as a ‘stick’ to encourage early admissions.
However, there is no comparable carrot. In the absence of an acknowledged benefit or (financial) incentive for being candid, a potential defendant is likely to consider themselves caught between a rock and a hard place.

Despite the suggestions for improvement which have been highlighted by bereaved families over recent years, the enactment of a statutory duty of candour appears low on the Government’s priorities at the current time. If the duty is to become law then there needs to be careful consideration of the potential, but significant, implications to ensure that there is genuinely fairness to all.

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