The role of the Inquiry Panel in preparation

There may be a tension between two competing imperatives where the Panel is concerned. On the one hand, it is likely to be desirable for the Panel to be able to shape the strategy for document collection and statement-taking. In particular, legally-qualified Chairman of a public inquiry will probably have clear ideas about what types off document he wants to see, what types of witness he wants to hear from and what general issues he wants to have addressed. To those ends he could well want to see documents and witness statements as they are gathered and he may want to decide which documents and witnesses should be discarded and which should be used.

On the other hand, by definition the process is a public inquiry. If the Chairman or other Panel members see documents and witness statements that are not then made public, or even if they have substantial advance opportunity to consider those which are subsequently made public, there is a risk that they will be perceived as having pre-judged issues or as having been influenced by materials that witnesses and core participants will not see. To take a practical example, a witness team may include an expert who gives the public inquiry an assessment of a witness whom he has interviewed. If the panel sees that assessment, as part of the process of deciding whether to call the witness, it is likely to be influenced by the expert assessment. If the witness is then called there could be unconscious bias about his evidence unless the expert’s view is also made public and tested.

Most public inquiries resolve this issue by constant vigilance on the part of the Solicitor and Counsel, with the aim of permitting the Panel to have enough information to make strategic decisions without compromising their ability to make fair decisions on publicly-available materials. In practice the legal team on a public inquiry will hold regular meetings to discuss the progress of the preparation and any issues that need to be drawn to the attention of the Panel. Those issues are then presented, so far as possible, without showing materials to the Panel.

Of course, the degree to which a public inquiry is in fact a public exercise is not set in stone. However, the premise of every public inquiry is almost bound to be that the events being inquired into have caused, or are capable of causing, public concern. The traditional view is that public concern can only be assuaged by a transparent and open examination of the facts and issues in public. There may be reasons, for example concerning national security, which prevent materials being made public during the course of a public inquiry. That has been the case with the Rosemary Nelson Inquiry and is asserted to be the case with the outstanding Patrick Finucane Inquiry. It may be necessary to grant witnesses anonymity. Those specific circumstances in which Panel members see materials and evidence which may not be made public are exceptional.