Report of the Inquiry into the circumstances of the Death of Bernard ...

and additional expense might have been avoided if I had asked the Minister to consider
converting the inquiry as soon as there were indications that a key witness was reluctant
to cooperate.
2.38 The note on investigation procedure that I adopted after consultation with the
interested parties is at Annex 2 to the report. In devising procedures that would serve the
purposes of the terms of reference and be fair to all concerned, I found that the Inquiries
Act 2005 and the Inquiry Rules 2006 provided a helpful guide. However, at that point, I
had not contemplated that the investigation might be converted to a statutory inquiry and
there were some respects in which the investigation procedure I adopted differed from
the statutory rules. For example, the procedure did not specify that witnesses who might
be subject to criticism would necessarily be sent confidential warning letters, nor that
there was a presumption that documentary evidence would be available to members of
the public as well as the interested parties. These inconsistencies caused some
complications in the final stages of the inquiry. Those who conduct future ad hoc
inquiries might find it helpful to have regard to the possibility of conversion to a statutory
footing when devising procedures.
2.39 An independent investigator requires discretion to pursue inquiries in the way that
he or she finds appropriate to the particular case. I have therefore decided not to make
recommendations about procedure but rather certain observations about lessons I
learned during the inquiry:
2.40 Observations about inquiry procedure
The need to compel a key witness to give evidence caused additional delay and
expense. Those who conduct similar investigations in future may wish to seek
conversion to a statutory inquiry at an early stage if there are indications of a lack
of cooperation from witnesses such that compulsive powers may be required.
The Inquiries Act 2005 and the Inquiry Rules 2006 provide a helpful guide to
procedures that are fair to all parties. Those who conduct similar investigations in
future may wish to refer to them in devising procedures. Where there is a
possibility that an investigation may be converted to a statutory inquiry, it is
desirable to avoid disparities between the procedures applying to the nonstatutory
stage and those that apply in the event of conversion.
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