Background
The recently announced Orgreave Inquiry, one of five new inquiries this year (others include the Nottingham Inquiry and Southport Inquiry), brings the total number of ongoing UK public inquiries to 22. Although the efficiency and effectiveness of public inquiries has recently come under scrutiny, with concerns about delays (the average time to produce a final report is currently five years) and costs, this figure is at a record high following a decades-long trend towards greater reliance on inquiries following major scandals.
The likelihood of being asked to provide evidence to an inquiry has therefore never been higher. The process is likely to be unfamiliar, occur years after the relevant events, and play out under intense media scrutiny. We consider the key issues for witnesses to consider below.
Requests for written evidence
The modern framework for statutory inquiries is set out in the Inquiries Act 2005 and the Inquiry Rules 2006. An individual or organisation that can provide relevant evidence to an inquiry typically receives a Rule 9 (Inquiry Rules 2006) request for a written statement and/or documents to be provided voluntarily.
A request for a witness statement is likely to be detailed, contain questions grouped thematically relating to matters within the terms of reference of the inquiry, and specify precise formatting requirements. The questions, which may be lengthy and cover issues over a number of years or decades, will address the witness' involvement in relevant matters and can include queries to elicit lessons that have been learnt. The request is likely to be accompanied by a large bundle of relevant documentation, with supplemental bundles potentially being provided later in the process. It is possible that further Rule 9 requests may be subsequently received.
Oral evidence
Following the provision of a witness statement, the inquiry may ask an individual to attend a hearing to provide oral evidence. The preparation which went into the witness statement pays dividends at this stage by ensuring that there is a clear record of the evidence to be provided, set out in a logical order and referencing key extracts from what is likely to be a significant volume of documentation disclosed by the inquiry.
Counsel to the inquiry will lead the questioning, with the chair and any panel members also able to contribute. Representatives of core participants can apply for permission from the chair to ask questions which have been pre-approved. The legal representatives of the witness can themselves apply to ask questions, although this opportunity is less frequently taken than by the other parties.
Key issues to consider
In responding to an inquiry's request for evidence, there are a number of practical matters to consider, for example:
- Cooperation – most witnesses will want to assist an inquiry voluntarily, but if cooperation is not forthcoming, the inquiry may issue a notice (under Section 21, Inquiries Act 2005), compelling the provision of relevant evidence. Non-compliance with such a notice, without reasonable excuse, is a criminal offence, punishable by a fine of up to £1,000 and/or imprisonment for up to 51 weeks. Non-compliance can also be certified to the High Court, which could result in enforcement measures such as the issuance of a witness summons (potentially backed by a bench warrant) to secure compliance. Although these powers are significant, inquiries have encountered difficulties in ensuring compliance by witnesses who have left the jurisdiction (for example, during the Post Office Horizon IT Inquiry and the Manchester Arena Inquiry).
- Preparation – this is key to being able to provide the best possible evidence to assist the inquiry. Appropriate preparation will almost certainly involve going through the disclosure chronologically to piece together the relevant events which may have occurred many years ago. It may involve various enquires to locate documentation and information to understand the relevant context of events, such as an individual's knowledge or whereabouts at a particular time.
- Legal professional privilege – a person cannot be compelled to produce privileged information (see Section 22 of the Inquiries Act 2005). This protection can be lost if the party who the privilege belongs to decides to waive privilege, which may occur following a request from the inquiry.
- Privilege against self-incrimination – the privileged information protection extends to the privilege against self-incrimination. Whether or not an Attorney General's undertaking has been given, for example an undertaking that evidence which a person provides to an inquiry cannot be used in any criminal proceedings against that person (although in such circumstances it may be used indirectly by highlighting lines of enquiry), the level of risk of prosecution or regulatory proceedings, and the approach of other parties will be amongst the relevant factors to consider.
- The risk of criminal or regulatory proceedings – an inquiry does not determine civil or criminal liability, but it is likely to be watched with interest by entities such as regulators who may subsequently prosecute or bring regulatory proceedings. A witness statement and a transcript of oral evidence (which is likely to have been livestreamed) will be published on the inquiry's publicly accessible website.
Warnings of intended criticism
Following evidence being provided to an inquiry, the preparation of the draft report will be progressed. Those that face explicit or significant criticism in the report must be given a reasonable opportunity to respond to any intended criticisms (a Rule 13 letter, also known as Maxwellisation). Key extracts from the draft report or relevant chapters of the draft report can be provided. The timescales for the response are likely to be tight and relatively inflexible. Again, preparation at the earlier stages will assist to be able to identify and deploy key evidence in response.
The receipt of a Rule 13 letter comes towards the end of a lengthy process during which views can become entrenched. An inquiry does not have unlimited resources and may consider it safer territory to over than under criticise, unburdened with the higher standard of proof which may follow in any criminal proceedings. It may therefore be desirable to consider which areas of potential criticism are the most serious in terms of the risk of subsequent proceedings and reputational damage, and prioritise accordingly.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
