Fairness to witnesses

The general obligation of fairness to witnesses

Article 6 of the European Convention on Human Rights does not apply to public inquiries, as they do not determine civil or criminal liabilities. By section2 of the Inquiries Act 2005:

(1) An inquiry Panel is not to rule on, and has no power to determine, any person’s civil or criminal liability.

(2) But an inquiry Panel is not to be inhibited in the discharge of its functions by any likelihood of liability being inferred from facts that it determines or recommendations that it makes.

There is nothing in the Inquiries Act 2005 which expressly deals with the treatment of witnesses. Nonetheless, it is well settled that one of the principal concerns of a public inquiry is that it should behave fairly to all witnesses. No doubt that is primarily in recognition of the function of allaying public concern, which may be prejudiced if witnesses are treated unfairly. While a distinction may be drawn between those witnesses who may, explicitly or implicitly, be criticised during the proceedings of a public inquiry or in its report, the overall obligation of fairness to all witnesses is plain. That obligation was recognised in Re A, the Bloody Sunday Inquiry case dealing with anonymity of soldiers, as the foundation of the duty to ensure that giving evidence openly did not cause undue distress to a witness. There the duty was described as arising at common law, but it is at least arguable that Article 8 of the European Convention on Human Rights would require a similar approach.

Public Funding

As Lord Scott said in Three Rivers (No. 6) case “The defence of personal reputation and integrity is at least as important to many individuals and companies as the pursuit or defence of legal rights whether under private law or public law.” Drawn from this, and in the absence of any statutory guidance, it might be thought that persons seeking representation for the purposes of giving a witness statement fall into three broad categories:

a. those who may be directly criticised within the terms of reference;

b. those whom it is reasonable to believe may suffer significant collateral prejudice as a result of the public inquiry process, e.g. by being criticised as being dishonest or as professionally negligent, or by being exposed to risk of death or injury by being involved;

c. ordinary witnesses of fact.

Again, in the absence of guidance, fairness would appear to require only those persons in categories a. and b. would be permitted publicly funded legal assistance at the statement-taking stage. Equally, in the ordinary case, only those in category a. would be represented at the hearing at public expense, although that is a matter which would plainly be within the discretion of the Chairman, to be exercised according to the precise collateral effect on the witness which the inquiry may produce.

However, there is some guidance. The third Salmon principle is that any person involved in an inquiry as a witness should

a. be given an adequate opportunity of preparing his case and of being assisted by legal advisers;

b. normally have his legal expenses met out of public funds.

The Scott Inquiry pointed out that the Salmon principles carry strong overtones of ordinary adversarial litigation. It suggested substituting the word “evidence” for the word “case”. It drew a distinction between representation at the statement-taking stage, at the stage of responding to any criticism and at the hearing stage, and recommended that at the third stage the involvement of lawyers for a witness ought to be dictated by the needs of fairness. However, it appears uncritically to have endorsed the principle that all witnesses should be represented at the first and second stages.

That conclusion was regarded as “uncontroversial” by the Council on Tribunals, in an Advice to the Lord Chancellor given in July 1996.

It follows that, so far as the taking of statements is concerned, all witnesses are regarded by the Salmon principles, by Scott and by the Council on Tribunals as being entitled to representation at public expense, no matter how little they may be affected by giving evidence.

Nonetheless, there have been significant developments in the attitude towards the funding of inquiries since 1996, and that the guidance seems too wide and generous in its approach to safeguarding witnesses. The costs implications of applying it would be serious. There is a strong case to adopt the Scott approach to witnesses who are to have criticisms put to them, regardless of whether that criticism falls squarely within the terms of reference. Whether it is necessary or prudent to extend funding to others should perhaps deserve careful consideration in relation to each public inquiry.

Rules of evidence

There are no rules of evidence in a public inquiry, but in a public inquiry operating under the Inquiries Act 2005 section 17 makes provision for procedure. By section 17(1) the procedure and conduct of a public inquiry are to be such as the Chairman may direct. By section 17(3), in making any decision as to the procedure or conduct of a public inquiry the Chairman must act with fairness and also with regard to the need to avoid any unnecessary cost. Save for the injunction to avoid unnecessary cost, that provision appears to add nothing to the common-law duty of fairness. Any failure by the Chairman to observe his duty to make decisions in such a way as to avoid unnecessary cost could, in an appropriate case, lead to his removal under section 12(3)(b), or to the Minister bringing the public inquiry to an end under section 14(1)(b) of the Act.

The most obvious consequence of there being no rules of evidence is that hearsay will be admitted. However, in order to arrive at reliable conclusions a public inquiry is likely to evaluate hearsay evidence as a court would do in civil proceedings.

Fairness to a witness is likely to require a public inquiry to be cautious about requiring him to give evidence about sensitive matters such as previous convictions. In the absence of any rules, it is likely that a balancing exercise will generally be adopted – the more intrusive the questioning is to be the better the justification for it must be. There is no direct analogy with the admission in a criminal trial of the defendant’s previous convictions, less still with the cross examination of a rape victim about her sexual history. The question for a public inquiry is primarily one of relevance. If a question is irrelevant then it ought not to be asked, regardless of how intrusive it is. However, even a degree of relevance may be insufficient to justify a very intrusive line of questioning. That is because of the very public nature of the proceedings. Some matters may be so distressing and personal to a witness that only a very pressing need for the public inquiry to know about them will justify questions about them.

Warning letters

These are normally known as Salmon letters, after the Salmon principles, which hold it to be necessary to give fair notice to a witness in advance of publication of the final report of a public inquiry of any criticism of him that the report may contain.

The better practice, where it is practicable, is to give notice to witnesses and others who may be criticised at the earliest possible stage. It may be possible to do that when conducting interviews or the opportunity may arise during the course of calling evidence. Naturally it is in the nature of a public inquiry to uncover the facts, and facts which give rise to criticism may emerge only at a late stage in the evidence. Nonetheless it will generally be desirable to give the person liable to be criticised an opportunity to respond to it while the hearings are in progress, even if that means reconvening for the purpose. Not only is that the fairer course but it is also the one most likely to test the evidence.

By rule 13 of the Inquiry Rules 2006, which apply to public inquiries established under the Inquiries Act 2005, Salmon letters have now been put on a statutory footing:

(1) The Chairman may send a warning letter to any person—

(a) he considers may be, or who has been, subject to criticism in the inquiry proceedings; or
(b) about whom criticism may be inferred from evidence that has been given during the inquiry proceedings; or
(c) who may be subject to criticism in the report, or any interim report.

(2) The recipient of a warning letter may disclose it to his recognised legal representative.

(3) The inquiry Panel must not include any explicit or significant criticism of a person in the report, or in any interim report, unless—

(a) the Chairman has sent that person a warning letter; and
(b) the person has been given a reasonable opportunity to respond to the warning letter.

By rule 14 of the Inquiry Rules 2006:

(1) Subject to paragraphs (2), (3), and (4) the contents of a warning letter are to be treated as subject to an obligation of confidence owed—

(a) separately by each member of the inquiry team to the recipient of the warning letter;
(b) by the recipient to the Chairman; and
(c) by the recipient's recognised legal representative to the Chairman (where the recipient has disclosed the letter under rule 13(2)).

(2) The obligation of confidence may be waived in writing at any time by the Chairman or, as the case may be, by the recipient of the warning letter.

(3) The inquiry Panel's obligation of confidence arising under this rule ends when the inquiry report is signed in accordance with section 24(4) of the Inquiries Act 2005.

(4) All other obligations of confidence arising under this rule end when the inquiry report is published.

(5) A breach of the obligation referred to in paragraph (1) is actionable at the suit of the person to whom the obligation is owed, subject to the defences applying to actions for breach of confidence.

By rule 15 of the Inquiry Rules 2006:

(1) Subject to paragraphs (3) and (4), the warning letter must

(a) state what the criticism or proposed criticism is;
(b) contain a statement of the facts that the Chairman considers substantiate the criticism or proposed criticism; and
(c) refer to any evidence which supports those facts.

(2) The Chairman may provide copies of the evidence referred to with the warning letter, if he considers it appropriate to do so.

(3) Where the warning letter is sent to a person under rule 13(1)(b)—

(a) the requirements of paragraph (1) do not apply, but
(b) subject to paragraph (4), the letter must refer to the evidence from which criticism could be inferred.

(4) Paragraphs (1) to (3) are subject to any restrictions on the disclosure of evidence, documents or information pursuant to sections 19 and 23 of the Act, or resulting from a determination of public interest immunity.

Anonymity and screening

In the ordinary course a public inquiry will hear evidence in open from witnesses using their names. However, the public concern giving rise to a public inquiry may be of such a nature that feelings are running very high, especially where the responsibility for a death or deaths is in issue. Further, some public inquiries will deal with very sensitive, perhaps secret or top secret, information, and to identify the witnesses may have the result of ruining their operational ability or of endangering national security. In such circumstances it is now common for witnesses to seek anonymity and/or screening from public view. The factors for deciding whether to grant such treatment are twofold. The first is whether a refusal to grant it will so endanger the life of the witness as to infringe his rights under Article 2 of the European Convention on Human Rights. The second is whether such a refusal would be unfair. The leading authority on the application of those factors is the House of Lords case of Re Officer L. That decision concerned the questions whether there are two factors, and how each should be approached. It concluded that a public inquiry may have a positive obligation to protect life under Article 2, but that it arose only where calling the witness would present a real and immediate risk to his life, and that establishing such a threat required the witness to cross a high threshold. The causative link between calling the witness to give evidence openly and the real and immediate risk is properly dealt with by posing the question, "would so calling him materially increase the risk?".

Their Lordships left open the question whether, once it is established that a witness faces a real and immediate risk to his life which will be materially increased by giving evidence openly at the public inquiry, he may nonetheless be required to give his evidence openly because the public interest requires it. These authors respectfully suggest that Article 2 cannot permit such a balancing exercise and that, if the requisite level of risk is shown, coupled with the causative link to giving evidence openly, the public inquiry must do all that is reasonably available to it so as to minimise the risk.

In Re Officer L the common law considerations relating to the grant of anonymity and screening were also considered. The House concluded that, unlike an application under Article 2 at common law the applicant did not need to establish an actual risk. The perception of a risk, no matter how ill-founded, could require a public inquiry to grant an application, particularly if the perception was likely to put the witness’s health in jeopardy. In determining such an application a public inquiry will conduct a balancing exercise. On one side of the balance will be the advantage to the witness of giving evidence under a cipher and/or behind a screen. On the other side will be the public interest in seeing that witnessgive evidence openly and identifiably. The advantage of making the witness feel secure is a real one. It was recognised in the Bloody Sunday Inquiry and it has been demonstrated on a number of occasions in other public inquiries.