Memorandum by Sir Cecil Clothier (GBI
14)
MECHANISMS OF
INQUIRY
Inquiry into past events is an activity carried
on every day in a great variety of contexts and an infinite variety
of ways. They range from the Managing Director who sends for a
head of department, through a "death and complications"
conference at a teaching hospital, to a legal trial of issues
in a court of law. Some methods plainly get nearer to the truth,
an elusive concept, than others. In Allitt, the Coroner's Inquest
on more than one occasion failed of its purpose.
The expression, "a full public inquiry",
has gained a recent parrot currency of quite unspecific meaning.
The notion that a public inquiry could somehow be less than "full",
meaning perhaps half-hearted or going only half the distance is
manifestly absurd. Perhaps it implies some degree of public ceremonial;
it certainly requires of course that to much of its proceedings
the public are admitted. But it seems to overlook conveniently
that the deliberating and the thinking must inevitably be in private.
The principal features of a "full public
inquiry" seem to be the giving of evidence in public and
the leading and testing of that evidence by advocates skilled
in discrediting a witness whose evidence is hostile to a client.
In criminal matters this may be a necessary process. In a civil
and non-litigious setting, it can and usually does cause humiliation
and distress without necessarily arriving any nearer to the truthfulness
or accuracy of the witness's utterances. The taking of an oath
or the making of an affirmation often accompanies the ceremonial
process. In my experience in court this ritual has never affected
an honest person's determination to tell the truth, nor a liar's
determination not to. Everyone who pleads not guilty in a criminal
court and is then found guilty will almost always have lied on
oath, an everyday event for which hardly anyone is ever prosecuted.
The more formal process also entails the power
to compel witnesses to attend to give evidence. Mercifully, we
can no longer make them talk after they arrive, although one can
still imprison them for not talking. Also available is the power
to order production of documents—that is, provided you know
that they exist and where they are. If I keep a diary of events
in the bottom of my wardrobe, who is to know it is there?
Allitt (and many similar inquiries) have proved
these powers to be nugatory. All 94 witnesses whom we invited
came voluntarily, sometimes accompanied by a friend, a union representative
or a lawyer (none of whom was allowed to speak). A few of these
witnesses were not very forthcoming, because they had something
to hide. They would have acted the same way had they been on sub-poena.
As for documents, they came in torrents from
a great variety of sources. Everything we expected to see was
there. If we wanted more, we asked for and got it. It is impossible,
as I have indicated, to know what if anything was hidden from
us, but I very much doubt if anything of importance was missing.
Our procedure was as follows:
1. Invite witness by letter offering to pay
expenses and indicating the areas of evidence to which they might
speak.
2. Welcome them in private (three members
of tribunal, two secretaries) in a small room.
3. Tell them that a note of the meeting would
be taken and sent to them for comment.
4. Invite them to say anything they wanted
and then question them, sometimes gently, sometimes firmly, never
rudely.
5. Send the note of evidence to the witness,
examine the response to it and either amend the note or append
the response to it.
6. At the draft report stage, send any critical
passage to the person or persons affected, inviting them to say:
(a) whether they agree the facts stated
in the extract;
(b) whether they wish to make any observations
about the balance of presentation.
7. Consider the responses and decide whether
or not to amend the report in the light thereof.
The unquestionable advantage of this method
was that in the absence of friends, colleagues, parents, press
and other embarrassments, witnesses gradually began to speak with
a frankness which was at times startling. Some of the things said
it would not be right to quote and often they were deliberately
couched in hyperbole to drive home the point being made. But overall
they gave a wonderful glimpse of the truth. Does one ever get
nearer? These things, I am quite sure, could never have been said
in a public arena and if said in the presence of lawyers, would
be open to a cruel and humbling cross-examination which would
be noted and observed by others as a deterrent to speaking one's
mind.
Finally I come to the question of costs. Time
is money and the procedure of an inquiry in private is quicker.
But that apart, those who find the environment of a public place
of inquiry unfamiliar and frightening, naturally and properly
engage spokesmen who are usually lawyers and who usually expect
to be paid. Moreover, those with different interests in the outcome
find it best to employ different lawyers. In Allitt there were
two firms acting for parents and separate lawyers for doctors,
nurses and management. This is the very least representation there
would have been at a public inquiry and since each lawyer wants
to hear what the others say, all must attend every day. Often
they will have expenses for travel and accommodation.
Even if professional associations pay the cost
of these goings-on initially, there is a big hidden burden of
cost to the public, to be added to the direct costs which commonly
fall on ratepayers. According to PQ/2243/1990-91 Hansard Vol 191
Col 443, the Cleveland Inquiry cost about £1.25 million.
The Inquiry took just under a year. When Trent Region last estimated
the cost of the Allitt inquiry a few weeks ago it amounted to
£94,000, but I expect it to top £100,000 when all is
done.
The end-product of all methods is a report.
It will be probably be written by much the same people, or sort
of people, by whatever method it is produced. Those with an interest
in the outcome will deride its findings if they do not agree with
them and may seek support for their rejection in attacking the
means by which it was produced. The only real test of the results
is the objective opinion of disinterested parties. My judgment
of these matters must end here.
July 2004
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