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Could technology expedite an inquiry into the Covid-19 pandemic?

  • United Kingdom
  • Inquiries and investigations
  • Litigation and dispute management
  • Local government - Special reports

17-02-2021

Boris Johnson confirmed during Prime Ministers Questions on 15 July 2020 that the UK Government would establish an “independent review” into the pandemic. There have been no further developments in terms of the form the Inquiry might take or its timing, but what is clear is that the pressure for a public inquiry into the Government’s handling of the crisis has not gone away.  As the Government attempts to bring the number of Covid-19 cases under control and to roll out its mass vaccination programme as quickly as possible, there is even greater scrutiny of its response to the pandemic. During a press conference on 26 January 2021, the Prime Minister accepted “full responsibility” for everything the government has done during the pandemic.  

Speaking before he stepped down as Unison General Secretary on 8 January 2021, Dave Prentis called for a public inquiry into the Government’s handling of the crisis. He stated that Unison was already putting together the evidence, of which there was a huge volume[1]. On the day that the number of Covid-19 related deaths in the UK reached 100,000, MP Caroline Lucas called for a Public Inquiry “now”, claiming that “we can’t wait months” for it to happen.

This is the final article in a three-part series where we consider what options are available to the Government in respect of an inquiry into the Covid-19 pandemic.

The first article can be found here A UK statutory public inquiry; to be or not to be?- Publications - Eversheds Sutherland (eversheds-sutherland.com)

The second article can be found here What form might the UK Governments independent review take?- Publications - Eversheds Sutherland (eversheds-sutherland.com)

The use of technology in public inquiries

As the economy ground to a halt and the doors of our shops, restaurants, theatres and gyms were forced to close last year, it may have been noted that the work of some inquiries, such as the  Independent Inquiry into Child Sexual Abuse (“IICSA”), Grenfell Tower, Undercover Police and Infected Blood, continued despite the national lockdowns. They all proceeded in slightly different formats but they had one solution in common: Technology. 

Inquiry proceedings were migrated to varying degrees of virtual, with online technology platforms for core participants, members of the press and the public to follow the hearings and access documents remotely. 

IT systems have always been the lifeblood of an inquiry, but never before has the importance of successful technology been so vital to the smooth operation of its work and effective engagement with participants and the public.

In this third article, we consider the use of technology in public inquiries.

Matter of public concern Vs costs and duration

As we explained in our first article, before an inquiry can be established under the Inquiries Act 2005, the matter under investigation has to be of public concern. A minister may then establish a public inquiry. Given the devastating and wide-ranging impact Covid-19 has had on the UK, it is difficult to see how an argument of insufficient public concern could be justified.

Despite the obvious public interest, there will undoubtedly be concerns about the likely costs of a public inquiry. That, and the duration of public inquiries are the arguments most often cited for limiting their use.

The experience of the Bloody Sunday Inquiry, which took over 12 years to complete at a cost of £192m, contributed to the introduction of the Inquiries Act 2005 which had, at its core, the aim of controlling the cost and duration of public inquiries. Unlike its predecessor, the Tribunals of Inquiry (Evidence) Act 1921, the Inquiries Act 2005 imposes an obligation on an inquiry Chairman to have regard to the need of avoiding any unnecessary cost.

The greatest costs for an inquiry are, undoubtedly, its staff. The size of the Inquiry team will, in part, be dependent on the scale and nature of the matters to be investigated. One vital component of this is the volume and format of the data which will need to be collected and analysed for the Inquiry to progress its work. Legal  costs can be dramatically reduced through the use of well managed IT systems designed to increase the efficiency of an inquiry, as well as effective project management.

In the absence of effective IT systems and project management, an inordinate amount of time and costs can be incurred by the Chair, counsel to the inquiry, the inquiry’s solicitors, core participants and their legal representatives in managing documentary evidence, inquiry processes and communications.

The documents available to an inquiry

Inquiries collect and analyse vast quantities of documents. Volumes of data are ever increasing but the nature and volume of documents available to an inquiry will largely depend on the nature of the matter under investigation and the period of time being investigated.

A number of inquires, the Infected Blood Inquiry being one recent example, are the result of years (or decades) of campaigning by interested groups. Many inquiries are tasked with examining events that took place a number of years ago. This can present challenges in terms of the evidence available to the inquiry with historic documents often having been destroyed as a result of poor data preserving procedures. Those documents that are still available are often only available in hard copy. Dealing with any significant volume of hard copy material can significantly slow down the review process. Technology, specifically an optical character recognition (“OCR”) programme, might assist here. Processing the historical documents and using OCR to identify and extract textual content will help speed up the review of such historical documents.

Although the timing of a potential Covid-19 inquiry is still under review, there is increasing pressure on the Government to commission it so that lessons are learned swiftly. An inquiry into the Covid-19 pandemic is therefore unlikely to have to grapple with historical documents, but the challenge for a Covid-19 inquiry is likely to be the volume of documents. Given the commitment already made to a review, stakeholders should already be on notice to preserve all potentially relevant documents. Faced with a high volume of documents, the role of efficient technology becomes even more important. 

Once the Chair and legal team have been appointed, Terms of Reference agreed and policies and procedures drafted, a system will need to be put in place for witnesses, core participants and interested parties to share documents with the inquiry. Depending on the scope and format of the inquiry, there may be a significant number of core participants or interested parties who will all receive a request for documents and information from the inquiry.  Transferring  those documents can be a time consuming and sometimes painful process. An inquiry is likely to rely on a cloud-based file transfer platform to ensure the  sharing of  large files in a speedy manner, unhindered by the difficulties we all face when sending files by email. Specifying in exactly what format data should be provided will minimise any IT issues and delays that could be caused by incompatibility problems.

Managing the Documents – an Effective System

A crucial, and early, decision for the inquiry will be to decide which document management system (“DMS”) it should use to manage the voluminous documentation. Inquiries may procure off-the-shelf IT systems, bespoke systems, or a combination of the two.

Bespoke systems have the potential to offer much greater functionality and can be tailored to each individual inquiry, but do tend to be costlier. Investing in a well designed and well managed IT system can, however, help an inquiry make dramatic cost savings over the course of the inquiry and, in our experience, is a worthwhile long term investment. 

The DMS is the inquiry’s ‘nerve centre’. It is the system in which all documents provided by core participants and witnesses to the inquiry are stored and analysed. It is also the system that core participants or interested parties, and their legal representatives, would use to access disclosure provided by the inquiry.

An effective DMS will:

  • enable documents to be reviewed and analysed by the inquiry team in a timely and consistent manner whilst protecting any sensitive data
  • enable the legal team and the Chair to work collaboratively and share thoughts when reviewing the material
  • enable the team to identify relevant issues for particular witnesses in preparation for witness interviews and questioning of witnesses during hearings
  • disclose material to core participants or interested parties, and manage more limited disclosure, perhaps to a single core participant only
  • enable the inquiry team to build the evidential picture, identify evidential gaps and begin the inquiry hearings without significant delays
  • collate an audit trail of all documentation received and shared by the inquiry

Sophisticated DMSs can reduce the pool of documents to be reviewed and analysed. They can identify and delete duplicate documents,  significantly reducing the amount of time the legal team spends on reviewing and analysing documents. Built-in advanced analytics, phrase identification, email threading, sentiment analysis and language identification can provide an instant analysis of large volumes of documents. Some document review platforms even offer predictive coding functionality based on Continuous Active Learning which learns from the review teams’ decisions. This enables documents to be reviewed more efficiently by first targeting suggested responsive documents which means that the documents most likely to be relevant to an inquiry’s terms of reference can be prioritised.  

The delays that can be caused by the lack of an effective DMS were illustrated in the Independent Inquiry into Child Sexual Abuse. Dame Lowell Goddard, former Chair of IICSA, stated in her report to the House of Commons Home Affairs Select Committee, following her resignation[2] that:

The delays in proceeding to hold any substantive public hearings have regrettably resulted from the Inquiry’s inability to obtain in any timely way the vital infrastructure necessary to prepare for and conduct public hearings. The lack of an Evidence Management System fit for purpose has severely hampered the Inquiry’s ability to manage the thousands (if not millions) of documents the Inquiry has been receiving, and the Solicitor to the Inquiry has consequently been unable to prepare the documents for public hearings’.

Providing documents to Core Participants or Interested Parties

Inquiries have an obligation to provide relevant material to core participants or interested parties. This is often shared in advance of being made public to assist core participants in fully engaging with the work of the inquiry.

The Bloody Sunday Inquiry received approximately 2,500 witness statements, 33 bundles of evidence comprising nearly 250 volumes, including 13 volumes of photographs, estimated to contain 20-30 million words, 121 audiotapes and 109 videotapes. All of this material had to be sent in CD-ROM format to the interested parties[3], an incredibly costly and inefficient exercise. Technology has, fortunately, improved significantly since then!

DMSs can provide separate workspaces for core participants to access the inquiry material direct. This separate workspace to core participants ensures that they can only access the documents that have already been reviewed and redacted by the inquiry team and that they can mark them up without sharing their comments with others involved in the process.

Counsel to the inquiry, as well as core participants and interested parties, should be able to access the DMS from anywhere. This is a valuable feature when it comes to preparing for public hearings and obviates the need and cost for hearing bundles to be printed and couriered for use in the hearing room. Witness bundles can be prepared, updated and shared through the click of a button, introducing huge time and cost savings.

Interactions between the Document Management System and the Hearing Room System

Hearing room systems allow material to be displayed to those present at the hearing, including evidence referred to by counsel to the inquiry and put to witnesses during the hearing.

The inquiry will want a hearing room system for presenting evidence during hearings and for transcribing and recording the evidence during public hearings. An inquiry will consider the requirements of its hearing system at the outset, long before the hearings are due to start, as its design and functionality will have to be considered alongside the design and layout of the inquiry’s premises and facilities.

In an ideal world document management and hearing rooms systems would have the ability to interact with each other. Documents need to be called up on screen by reference to their unique reference number, so that evidence referred to can be reviewed by all core participants or interested parties, legal teams, the witness giving evidence, the chair or panel, counsel to the inquiry and the public gallery.

Unfortunately the hearing rooms systems and document management systems have historically tended to be separate solutions, thus requiring a transfer of material from one to the other. Consideration will need to be given to the transfer process from the document management system to the hearing room system in order to avoid any delays. It is not unusual for counsel or a witness to want to refer to a document at the last minute. It is important that the public, who will not previously have had access to the material, can view the documents simultaneously to the evidence being given.

Most public hearings will have a transcription available for future reference. A hearing room system should also include the ability to interact with the transcription services. The service produces a written verbatim record of an inquiry’s public hearings in a transcript form. It typically involves a stenographer being present in the hearing room, although Digital Audio Recording Transcription and Storage (“Darts”) has been successfully used in Crown Courts since 2011. Inquiry systems have been designed so that the inquiry team, core participants or interested parties are able to annotate the live transcript, by adding notes or applying tags to identify certain issues. This is a useful tool to allow the instantaneous analysis of the evidence being heard. 

Live feeds and virtual hearings

In addition to the live transcript, there is often a live feed of the inquiry’s public proceedings with anybody who is unable to attend the hearing in person being able to follow the evidence via a live stream online. As a result of the events of the past year, a number of current inquiries have been unable to hold their public hearings in person which has resulted in inquiry proceedings being conducted completely virtually, with all members of the inquiry team (Chair, Panel, Counsel and witness) conducting the hearings in separate locations; IICSA is an example of this and the Grenfell Tower Inquiry has just announced its plans to migrate to fully remote hearings. The Infected Blood Inquiry has held semi-virtual hearings resulting in the Chair and Counsel being in the hearing centre and the witness and all core participants being remote.

Having a live feed or virtual hearings allows for accessibility for all, despite their location or personal circumstances. This also reduces the costs associated with maintaining large hearing centres and the travel costs of the inquiry team, core participants and their recognised legal representatives and the public.

Given the potential size of Covid-19 inquiry, the fact that it has affected all corners of the country and the level of interest that it will undoubtedly attract, identifying a hearing room large enough to accommodate all core participants, recognised legal representatives, media and the public will be difficult. It would of course also be impacted by  any on going requirements for social distancing. Virtual hearings may therefore be the solution. There will be significant cost benefits of holding virtual hearings, however, this will have to be carefully balanced against the likely desire of those who have been directly impacted by the pandemic to be physically present for the evidence of a number of key witnesses. The Chair of any future inquiry will therefore need to consider all of the options at the outset of the inquiry and conduct consultation in respect of the most appropriate forum for the hearings to be conducted.  

Conclusion

In summary, whatever form a public inquiry into the Covid-19 pandemic takes, technology and project management will play a key role in ensuring that the inquiry is run efficiently, swiftly and thoroughly. Careful consideration should be given at the outset of the inquiry to which systems are required and should be procured, with robust project management in place to support the Inquiry’s work.

At the time of writing the article, there is no single system available that provides both document management functionality and the ability to display material during inquiry hearings, without the need to transfer the material. The DMSs currently on the market are designed for document review and disclosure in litigation cases. Similarly, the hearing room systems on the market are designed for court cases, not public inquiries.

The pandemic has without a doubt accelerated the use of technology solutions. It will be fascinating to see how Covid-19, and the promise of a review into the government’s handling of it,  acts as a catalyst for the design of a new innovative system designed specifically with public inquiries in mind. Is it quite simply not a question of if, but when.

If you would like to discuss any element of this article please do not hesitate to contact the Eversheds Sutherland Inquiries and Investigations team


[1] https://www.independent.co.uk/news/uk/home-news/unison-union-workers-public-inquiry-covid-pandemic-b1783828.html

[2] Written evidence submitted by Lowell Goddard QC to the Home Affairs Select Committee September 2016, available at http://timtate.co.uk/wp-content/uploads/2016/10/Godard-letter-to-HA-Committee.pdf 

[3] https://www.bloody-sunday-inquiry.org.uk/qa.html