Procedures for evidence and witness questioning
Opening and closing submissions
In a public inquiry operating under the Inquiries Act 2005 the Chairman sets the procedure, under section 17. It follows that he will decide whether to permit any witness or interested party to make an opening or closing submission. However, if the public inquiry was established under the Inquiries Act 2005 (but not if converted to operate under it) the Inquiry Rules 2006 will bind the Chairman. By rule 11 any core participant may make an opening statement at the commencement of the first of any oral hearings and make a closing statement.
Closing submissions may helpfully incorporate proposed recommendations, to give an opportunity for reply. This may help to ensure that the Panel’s recommendations are dynamic and relevant, particularly where bodies have changed since the events under investigation occurred.
Questioning of witnesses
A public inquiry is inquisitorial, rather than adversarial, in nature. Accordingly the evidence will be primarily led by the Panel or by Counsel to the Inquiry on its behalf. The issue whether interested parties or other witnesses may be permitted to cross-examine is a vexed one. It was established, prior to the Bloody Sunday Inquiry, that a possible model for a public inquiry involved all questions being put by Counsel to the Inquiry, and that if another witness or an interested party wishes to advance a question he must supply it to Counsel to the Inquiry. Such a model usually entails a mechanism for the Chairman to arbitrate on disputes about whether such questions have been adequately dealt with. The Bloody Sunday Inquiry did not adopt that model. Rather, it permitted questioning by a number of lawyers, and there is a perception in some quarters that in doing so it added unnecessarily to its cost and length.
In establishing public inquiries in Northern Ireland after that perception emerged an attempt was made to encourage the use of the model by which all questions were channelled through Counsel to the Inquiry. This approach was challenged in a judicial review of the witness protocol of the Chairman of the Inquiry in Chief Constable’s Application [Stephen Walker] 2008 NIQB 145. Girvan LJ ruled that the protocol was lawful, however there was perceived to be resentment on the part of interested parties, because they may feel that questions which they wish to see pursued are not asked in the way, and with the vigour, that they believe necessary. The process also results in the public perception that the legal teams for witnesses and interested parties are doing nothing, and that perception can be very powerful when a large room full of lawyers is seen not to be taking any active role in a hearing.
In other public inquiries a more flexible approach has been adopted. In the Robert Hamill Inquiry and the Billy Wright Inquiry, evidence has been primarily led by Counsel to the Inquiry and the Chairmen has permitted supplemental questioning by others. Witnesses have all been called by Counsel to the Inquiry. Where an interested party or a witness wished to have a witness called to give evidence whom Counsel to the Inquiry was not proposing to call, he or she in the first instance asked Counsel to the Inquiry to call the witness. If Counsel declined to do so then there was provision for application to be made to the Chairman to call that witness, or to have Counsel to the Inquiry call the witness.
In the Robert Hamill Inquiry a witness or interested party who wished to have a line of questioning put to a witness called by Counsel to the Inquiry provided that line of questioning to him. If he did not pursue that line, or in the event that issues arose out of his examination of a witness, any witness or interested party was able to apply to the Chairman for permission to question the witness. In practice such permission was taken to be granted in every case, but lawyers appreciated that they asked questions only by consent. The judgment in Chief Constable’s Application [Stephen Walker] 2008 NIQB 145 left little room for challenge if a party wished to pursue a line of questioning that the Chairman did not deem relevant.
The inquiry did not to set rigid criteria for the method by which, or the time within which, notification should be given to Counsel to the Inquiry or applications made to the Chairman in respect of the matters set out above. The overriding objective was to ensure that all relevant evidence is adduced as efficiently as possible. In practice, conversations between Counsel immediately preceding a witness being called were generally sufficient to inform Counsel to the Inquiry of lines of questioning.
The result is that witnesses and interested parties feel that they have had their say and the public sees that the funding of legal teams has produced some result. Further, because a lawyer retained by a witness or interested party is likely to have a specific interest to advance or protect, and may have intimate knowledge of the matters under investigation, such questioning may elicit more useful evidence than questions by Counsel to the Inquiry will.
A public inquiry established under the Inquiries Act 2005 is bound by the Inquiry Rules 2006. The rules do not apply to public inquiries that have been converted to operate under the Inquiries Act 2005. Rule 10 of the Inquiry Rules 2006 imposes a ban on examination of a witness who is a core participant by anyone other than Counsel to the Inquiry, the Panel or, by leave of the Chairman, his own lawyer or the lawyer for another core participant. In short, a witness who is a core participant cannot be cross examined by the lawyer for another witness unless that witness is also a core participant. The strictness of that rule is relaxed by the provision in rule 5 of the Inquiry Rules 2006 permitting the Chairman to designate a person as a core participant at any time during the course of the public inquiry and to specify a date on which he ceases to be a core participant. By rule 10(5) where a lawyer for a core participant seeks leave to cross examine a witness he must state the issues in respect of which the witness is to be questioned and whether the questioning will raise new issues or, if not, why the questioning should be permitted. It follows that, even where the Inquiry Rules 2006 permit a Chairman of a public inquiry to allow cross examination, he must first be addressed on specific the reasons why he should do so.
Should a public inquiry have been set up in order to satisfy Article 2 requirements, the judgment of the House of Lords in Amin may provide useful guidance. Their Lordships considered that “on the facts of this case the obligation to hold an effective and thorough investigation can, in my judgment, only be met by holding a public and independent investigation with the family legally represented, provided with the relevant material and able to cross-examine the principal witnesses.” This is not exhaustive and the cases of R (D) v Home Secretary  3 All ER 946 and R (Lin) v Secretary of State for Transport  EWCH 2575 Admin in relation to an attempted suicide in prison and the Potter’s Bar rail crash respectively, did not consider that there was a mandatory right to cross-examine. Moses LJ in Lin did however note the restorative aspect in allowing full questioning of those held to account.