Compelling evidence to be given to a public inquiry

Powers under the Inquiries Act

Once a review has been made of the documents that have been made available to the inquiry team, it may be apparent that further documents need to be sought. A public inquiry is charged with the duty to investigate and to make relevant findings of fact and no agency, akin to the police force or Serious Fraud Investigators, has been established to do this for public inquiries. Rather they must do it themselves. Much of what they seek is provided voluntarily and public inquiry staff speak widely of a lot of goodwill in the provision of materials. However, for a public inquiry to function properly and not to be wholly dependent upon the goodwill of others, coercive powers are necessary. Additionally, some public bodies may require a notice in order to comply with internal procedures for disclosure.

There is a strong presumption that a public inquiry should have unfettered access to all information that it deems relevant to determining its terms of reference and also to any matter in question at the inquiry. Section 21 gives the Chairman the power to require the production of evidence by issuing a notice under sub-section 21(1) or 21(2). Unlike other powers in the Act, a notice or order cannot be issued by the Minister at any time. This power must be exercised by the Chairman during the course of the inquiry, as defined in section 43(2) (between set up and the end of the inquiry), by reporting on a date specified by the Minister.

The distinction between sub-sections 21(1) and 21(2) is essentially that the former gives the Chairman the power to require by notice a person to attend at a time and place to give or produce evidence and the latter relates to the production of things, without requiring attendance. Section 21(1)(a) will usually be used in relation to giving oral evidence at a public hearing, however nothing in section 21 limits it to this.

What and who can be compelled

Sub sections 21(1) and 21(2) are drawn very widely. They are clearly not limited to something mentioned in the terms of reference. Rather, any question at all that is raised before the inquiry is capable of falling within this form of words. While section 5(5) purports to limit the functions of the inquiry Panel as exercisable only within the terms of reference, it is clear with a purposive reading of the section that a public inquiry has to collect information and to ensure that evidence is given to it.

If it has some reason to believe that person A has a document or other evidence that sheds light on evidence to be given to the inquiry by person B then it cannot permit person A to decline to tell the inquiry the nature and content of that evidence. This principle extends to disclosure by third parties such as those who are not witnesses who can give evidence required to fulfil the terms of reference but may be able to comment on, for example, a witness’ reasons for non-attendance. Sub sections 21(1) and 21(2) may require the production of evidence “in his custody or under his control”. Section 21(6) states that “a thing is under a person’s control if it is in his possession or if he has the right to possession of it. A document may be in the custody of one person, but many people may have control of it. For example, a GP’s surgery may have custody of a patient’s medical records but the patient, the surgery and the health authority will have control over them and each may be required to produce the records.

The power to coerce a third party to give evidence is obviously not unique to the Inquiries Act 2005. Analogous powers can be found in section 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965 where the Crown Court may issue a summons to require a person to attend to give evidence or produce a document or thing that is likely to be material evidence to any criminal proceedings. Similar powers can also be found in section 55 of the Drug Trafficking Act 1994 and section 236 of the Insolvency Act 1986, and the authorities on the use of these analogous powers may be helpful in showing how the section 21 powers should be used.

When compelling disclosure from a third party out of fairness the affected person should be told of the notice to produce documents, save in exceptional circumstances, for example where there is a legitimate fear that the document would be destroyed or where the affected person is deceased or unavailable. The public inquiry may be faced with effectively being both the applicant and the arbiter for such a notice. Particularly when requiring disclosure without notice, in making a section 21 notice the Chairman would be advised to state explicitly his reasons for secrecy, reasons why notice could not be given or what steps have been taken to give informal notice to the affected person and to show that consideration has been given to the reasons why the notice should be made, as guided by Procedural Checklist 20 to the Civil Procedure Rules.

Sub sections 21(1) and 21(2) are drawn widely, not only as to who can be compelled but also as to what can be compelled. The wording is intended to be broad enough to capture anything that an Inquiry Chairman may wish to have sight of and that, given the broad spectrum of concerns that a public inquiry may have, nothing should be taken as being excluded from this. It follows that in addition to production of documents or attendance to give oral evidence, less tangible evidence such as access to buildings or passwords for access to systems may be sought. The Billy Wright Inquiry, for example, in Re: Paisley An application under section 36 of the Inquiries Act 2005 sought disclosure from Ian Paisley Jnr of the name of a person who had given in confidence to the politician the details of a file destruction policy in the Maze prison where Billy Wright was murdered. Highly personal evidence such sight of wounds or tattoos, sight of medical records or custody records may be required if it relates to a matter in issue at the inquiry. Clearly the requirement to produce such evidence will only be reasonable if the intrusion into privacy, or the interference with other rights is proportionate to the value of the evidence sought, see here.

Issuing the notice

A notice issued under section 21(1) must state a time and place for the person to attend. A notice issued under section 21(2) must give a reasonable period of notice for the production of the evidence. A stated time is highly advisable with a view to the possibility of enforcement proceedings.

Service of the notice must be effective. While section 17 of the Inquiries Act states that the procedure and conduct of an inquiry are to be such as the Chairman of the inquiry may direct, unless there is good reason for doing otherwise, the Chairman may be advised by Rule 6.2(1) of the Civil Procedure Rules as to the prescribed methods of service. The Chairman may further be guided by Rule 6.7(1) of as to deemed dates of service of the notice.

By section 21(3), the notice should include the possible consequences of not complying with the notice and explaining how the recipient of the notice may make a claim under section 21(4), see Defences to Enforcement Proceedings, below.

A notice issued under section 21 need not necessarily be signed by the Chairman.

A sample certificate issued under section 21 can be found here.