What is Inquiry in Law?
The term "inquiry" is derivative of the word "inquire", which in the context of legal inquiry is to seek information by questioning or examining, with a view to discovering the truth. A legal inquiry or investigation is generally anticipated or ordered where there is something which raises a reasonable suspicion that there has been an unlawful act.
In the criminal context, an inquiry (sometimes referred to as an investigation) is usually some initial step or stage in the process that leads to a charge being laid or indictment being preferred against an accused person. An inquiry establishes a judicial or quasi-judicial process prior to a prosecution.
In its simplest form, it involves the questioning or examination of a witness or witnesses, and its purpose is in most cases to determine whether there are reasonable grounds to justify that a charge be laid or preferred, or to assist during the course of proceedings to determine in relation to a matter of fact. It is not intended to be a trial.
Because inquiries are not trial processes there is no formal "evidence" as such. As a general rule, the process is not confined or limited to admissible evidence of facts, which would be material in the determination of an issue in any later trial (i.e. the prosecutor leading evidence to establish the elements of the offence).
The approach to inquiries is often non-adversarial and inquisitorial, which means it is conducted in an inquisitive fashion by a person, or persons, or a statutory body, in the hope that truth will emerge. Depending on the defence raised , the role of the accused could be passive (i.e. sitting back and letting evidence be presented) and acquiescent (i.e. letting matters which he or she may regard as prejudicial to him or her be laid before the tribunal) before raising in subsequent proceedings, among other things, a defence of prior knowledge of the matters in question, notwithstanding that the accused’s having been afforded the opportunity to explain them at inquiry stage or during the course of proceedings.
The contrast with investigations conducted by law enforcement agencies is instructive. The purpose of investigations or information gathering is to collect and collate evidence for the purpose of prosecuting a case against an accused. The purpose and focus of an investigation is an issue antenarrative to a trial, which on occasion leads to the laying of charges or the preferment of an indictment for the alleged commission of a criminal offence. Inquiries are deeper than investigations and create the opportunity for a fuller and more comprehensive understanding to be reached about issues that arise and which bear relevance to the charge levied.
A finding of an inquiry or testimony given is not, strictly speaking, binding upon a later hearing in relation to any matter which that inquiry purported to resolve or decide. This is contrasted with findings or evidence given at trial, or evidence adduced by, or on behalf of an accused person, which is binding upon the prosecution in subsequent proceedings unless to adduce it in whole or in part is rendered impractical by the passage of time or some other factor.
Types of Inquiry in Law
In a more specific context, an inquiry is what a court or tribunal tells you to remember about a case, or which facts are to be recorded. For example, in many traffic violation related legal inquiries, you will receive or be subject to an inquiry order to compel you to appear in front of the police department, or the other government attorneys who are evaluating your case.
In a legal context, on the other hand, there are several different kinds of inquiry which are usually categorized as judicial, statutory, or public.
Judicial inquiry is a mandated investigation based upon statutes that require that courts and tribunals hold a formal and regular inquiry in order to hear cases brought before them. When whether or not a judgment or ruling is to be proclaimed in a case, the court or tribunal will hold the judicial inquiry to evaluate the evidence and facts, from both sides, based upon the legal representations made.
Statutory inquiry is the formal evaluation or investigation of something by a government officer or government agency/department. The inquiry, usually in the form of a request for information or reporting requirements, is governed or driven by statute. In other words, there is specific statute which sets forth the nature of the inquiry being asked and the requirement for providing the information that is requested. The inquiry can focus on any number of things, including the accounting of funds, the status of something, such as a facility, project, etc., or a finding resulting from a legal judgment or determination made in a case.
Public inquiry is held in order to evaluate the conduct or activities of the government or individuals in relation to some event. These events typically include public accidents, public injuries and major crimes and terrorism. A public inquiry serves to allow for the law to be applied and justice to be served in a situation where ordinary legal proceedings are not sufficient.
In terms of the United Kingdom, however, the inquiry is generally referred to as a non-statutory public inquiry. It is typically held in the form of a tribunal or commission, though it may also be set up through an act of Parliament, and rules concerning evidence and procedure are more relaxed than in traditional courts.
Conducting an Inquiry in Law
Inquiry is commonly used within processes of administrative decision making or adjudication. Generally speaking, the process for conducting a legal inquiry will be broadly governed by the substantive laws and may also be specifically governed by rules or procedures incorporated by reference to those rules. A legislative or rule based process may include, but is not necessarily restricted to, written inquiries, oral hearings before a tribunal, examination before a tribunal, appeals from a tribunal, and/or certain formal administrative processes. Tribunals, or public inquiry bodies, are often established for the purposes of investigating or adjudicating on a particular area of law, whether such be legislation, regulation, rule, or other directive as prescribed by their establishing authority. Therefore, a relevant factual context may be relevant to explaining how the inquiry is to be carried out, the powers and jurisdiction of the tribunal, and the rights and liabilities of the relevant parties.
Such processes may include public elements, private elements, or a combination of both public and private elements. Inquiries may be of an inquisitorial nature (such as an administrative process), or adversarial in nature (such as examining witnesses under oath). Under an inquisitorial process, witnesses may be called and questioned by a tribunal or investigator, with no traditional party to party cross-examination. Under an adversarial process, in comparison, a number of procedural protections may be considered, such as legal representation, privilege, and the right to cross-examine witnesses. The availability of such protections, as well as the nature of the inquiry, may be determined by the substantive law governing the process. Other procedural aspects may include the manner of issue in a matter (whether by written summons or written notice), the location of proceedings, the appointment of assessment referees and experts, the provision of documents and disclosure of evidence, and the examination and cross-examination of witnesses.
Depending on the inquiry process, the relevant proceedings may at times occur in private, and at times in public. Parties to the proceedings may have rights to knowledge, participation in, mesne process, and/or appeal. In certain contexts, such as judicial proceedings, a tribunal may be bound to develop an accurate factual record, regardless of whether any one party has an intention to develop one or not. The material facts, legal rules, and equitable considerations that govern the matter may thus also be conditions of the process.
Inquiries in Law and Evidence Gathering
A key aspect of inquiry involves the gathering of evidence. In an inquisitorial system such as Scotland’s, what might be seen as conflicting functions (and processes) are generally combined in one court – the separation of the functions of inquisitor/inquiry ("judge") involved in determining contested issues (for example, guilt) and an investigator ("advocate depute") charged with the collection of relevant evidence does not arise. Evidence is not gathered in such an inquisitorial approach to inquiry in the name of any particular party; evidence is simply collected in the public interest, much as it would be if a court hearing evidence at trial. The procedural purpose is to allow all relevant uses of evidence collected to be made by the inquiry process in assessing and reaching conclusions on relevant issues that can arise from the evidence; the investigatory process does not seek to build evidence that will build a particular case for or against any individual. Evidence can be collected that might otherwise not be available, such as evidence of car accident witnesses, for example. Such witnesses might not be caught up in the civil action but might still be addressed and examined in the inquiry. The broad net cast by the inquiry process for collecting evidence allows for the unfolding of the responsible means by which such information is sought and handled in the public interest.
The lawyer conducting the inquiry is given clear powers under the Inquiries Act 2005 (section 19) regarding the management of the inquiry, including the calling of evidence. "Evidence may be heard by the inquiry in such manner as the inquiry thinks fit." This means that the person in control of the inquiry is given the discretion to hear what they consider to be relevant information. This raises the need for the inquiry to be seen to act fairly and assess all relevant evidence. The government’s guidance, Procedure for the handling of inquiries, states that "to assist with the presentation of supports the Inquiry will issue a note, following evidence-gathering, setting out the evidence it has heard, its understanding of the issues facing each key individual and/or organisation that is likely to be reported on, and the evidence most relevant to each issue. This note should be issued to all parties at the earliest possible time."
The same principle applies to the gathering of evidence. Evidence must be sought in an even-handed way. The inquiry must hear whatever is relevant to its process, it cannot avoid hearing evidence that has bearing on the topic under consideration. The inquiry process could be managed in such a way that the resulting inquiry report could be challenged in depending on what evidence was heard.
Effect of Inquiry in Law
Inquiries, by their nature, may have both an immediate impact on a case and lead to long-term implications for the parties and the public at large. Inquiry may affect the outcome of individual matters, but it also can bring about broader changes that resonate beyond a single dispute. A particular inquiry might usher in changes to a process or practice that alter the landscape of future matters involving similar issues, or focus public attention on an issue that produces societal change and potentially new legislation.
Inquiries often are used in securities and antitrust cases. In an antitrust suit, the Department of Justice’s Antitrust Division ("Antitrust Division") may launch a civil investigation of suspected anticompetitive activity. If the probe reveals wrongdoing, it may turn into a highly publicized lawsuit. The Antitrust Division may issue civil investigative demands ("CID") to obtain documents and information from companies suspected of engaging in anticompetitive conduct. Such matters have the potential to set a significant precedent; for example, the Antitrust Division’s widely publicized antitrust inquiry into credit card interchange fees resulted in a settlement that requires Visa and MasterCard, and to some extent Discover, to allow merchants greater flexibility in surcharging, routing transactions and offering discounts. The prior restrictions have now been altered or suppressed, which is already having a marked effect on the market, and will likely continue to do so into the future.
Public investigations conducted by the Department of Justice also can produce long-term effects, as illustrated by the Antitrust Division’s ongoing criminal investigation of Google Inc . ‘s ("Google") data practices. In that case, the Appellate Division of the Superior Court of New Jersey ruled that nonparties to the case had no right of common law access to documents Google filed confidentially, even though the case was heavily publicized. It was largely not covered in the press. The Appellate Division refused to assess the correctness of the Antitrust Division’s decision to file the application under seal.
And, most recently, the U.S. Department of Justice Antitrust Division (the "Department") has initiated an inquiry into the business practices of Apple Inc. ("Apple") and major book publishers, raising additional questions about the scope of the Antitrust Division’s antitrust and consumer protection authorities. Notably, the Department’s investigation into digital book pricing is the first known occasion in which the Antitrust Division will focus on electronic commerce involving consumer products. Although the Department has been investigating this case since May 2010, additional revelations in a related case, brought against Apple and the publishers by state attorneys general, have provided the public with additional sparse insight into the Department’s investigation.
An inquiry may also be used in securities investigations. For example, when the SEC brings a securities case and refuses to provide potential defendants access to material that it might use in the case against them, the harm posed to the defendants may be considerable. Not only may access to documents help a defendant formulate a thorough defense strategy, but early document production also may play a role in securing a favorable settlement as well as provide the basis for a potential counterclaim.
Issues with Inquiries in Law
Legal inquiries can be challenging undertakings, and many common pitfalls are still relevant today. Bias – or the appearance of bias – will undermine the integrity of any inquiry from its outset.
It may seem too obvious to state, but for any legal inquiry to be truly impartial, it is necessary for the person or people conducting it to have no pre-existing views on the matter that they have been called on to investigate. This point is so fundamental that it seems almost unnecessary to mention it. Unfortunately, both paid and unpaid members of the profession have run serious inquiries into professional misconduct whilst themselves being the subject of regulatory investigation, almost certainly in a less than good light from those doing the inquiry. In such circumstances, the findings of the inquiry will be under a cloud even if they are correct, or at least if there is any overlap between the terms of reference for the inquiry and the scope of the complainant’s case. The simple fact of the existence of disciplinary proceedings will flag the issue for any interested party who reads the decisions.
It is not just a question of the likelihood of actual bias, but of perceptions of bias. A lawyer who is investigating the conduct of another lawyer may be subject to favouritism from the subject lawyer and as such, offers of "assistance" to highlight points in the evidence that might assist one side or the other will no doubt be made. If an investigator is seen to be – or be – in receipt of such assistance, it may raise the question of bias, even if it is not in fact appropriate or given. Politicians are often prone to make accusations of "turning a blind eye" or undertaking "a whitewash job". Such allegations inevitably tarnish the reputation of the inquiry, and perhaps those carrying it out to some extent especially where the allegations have political currency because of past involvement with certain organisations.
Bias does not solely arise between lawyers. Experts – particularly in small jurisdictions or those relating to specialised fields such as children’s rights – are often drawn from a small pool of practice. An expert who gives bad evidence or unflattering conclusions about any particular organisation or individual may find him or herself frozen out of future work by institutional clients. This is undoubtedly a concern as the absence of expertise can delay or render impossible a proper investigation.
This is not to say that people genuinely involved in investigations may not have other commitments which do not give rise to, or justify, suspicion of bias. Are the people appointed to inquiries "busy enough" to give a commitment to see an inquiry through to the end? Failing to conclude a matter can cause delays and frustration, both for those implicated in the conclusions and those seeking compensation. Even beyond the damage to infrastructure or even the domestic abuse of powers of public servants (as in the case of the Chilean "Caravan of Death" of the late 1970s and early 1980s), such delays can cause serious practical implications for the lives of those involved.
The issue of disclosure of evidence is perhaps the most important to a legal practitioner, especially where a compensation scheme is being established in order to compensate victims. Without full disclosure of the existing evidence, it cannot be known whether compensation is likely to be payable, and if so, to whom. Even legal practitioners may recognise that an inquiry may fall foul of what can be a thorny issue: remaining transparent to the public.
Legal Reform and Inquiry
A strong link exists between legal reform and inquiry. In some instances, a legal reform is the trigger for an inquiry. A clear example of this is the commission and inquiry by the Royal Solicitor to examine the role of accounts at the Law Society in the wake of the Deen Inquiry. In other instances a statutory inquiry or investigative body will recommend legal reform through its report, and an example of this was the role of the Law Reform Commission in the publication of its Criminal Defences publication.
Another relationship exists where an inquiry can be the trigger for legal reform. Many Australian States have a statutory base for Commissions of Inquiry, such as the Commissions of Inquiry Act 1952 (WA), in order to create a back door mode of legal reform that overcomes a parliamentary standstill. One need only think of the State or National Security Legislation Amendment (Terrorist Hotline) Bill 2014 (Cth) to see the instance of inquiry to legal reform.
Inquiries allow Parliament to sidestep legislative time management in putting off reform until executive government has been able to control the tide of political opinion . Where inquiries lead to legal reform they often contain recommendations presacting which laws should be changed and usual a time frame for those changes.
The law reform may be in the form of procedural reform. An example of this is in the context of the Legislative Council of Victoria abolishing the office of the Usher of the Black Rod in 2015 after 149 years in existence. The inquiry into the scandal established that the Black Rod was meant to be the Legislation Review Manager but was instead found to have behaved more like a security guard.
Legislative Reform may be in substantive reform. Such was the case in the recent review of the Coroners Act 2008 (Vic) which recommended that it soon be followed by replacement legislation to improve and innovate the Coroner’s role.
Finally, an inquiry may indirectly lead to legislative reform by producing proposals for practical change to a legal system. Such reform has a higher likelihood of being passed in the face of public support.