The content of the report

Findings of fact

Naturally the purpose of the report is to fulfil the terms of reference, which will invariably contain the command “to inquire into…”.  The primary need therefore is for it to set out findings on the matters into which it was to inquire. There are no rules of evidence, unless the Chairman has adopted some under his powers to regulate the conduct and procedure of a public inquiry. It follows that the report does not have to reflect the civil standard of proof, by which anything which a court finds more than a 50% chance of having happened is treated as certainly having happened. Rather, the report of a public inquiry may properly reflect the precise degree of certainty or uncertainty which the Panel has about whether something has happened.

By section 24(5) of the Inquiries Act 2005, if the Panel of a public inquiry conducted under that Act is unable to produce a unanimous report, the report must reasonably reflect the points of disagreement. That provision reflects the possibility that there may be unanimity over the findings, but the degree of certainty over some or all of them may differ between Panel members and that difference should be set out in the report. Conventionally, if the Panel cannot achieve unanimity the dissenting member or members will produce a minority report. However, section 24(5) of the 2005 Act recognises that a single report may nonetheless be capable of expressing the extent of any disagreement.

Recommendations

Terms of reference invariably conclude with the phrase “and to make recommendations.” As a matter of construction it is obvious that such recommendations should relate directly to the matters into which the public inquiry is to inquire. However, it is possible that in the course of its work the public inquiry may encounter matters that seem to it to merit comment but which do not fall within the terms of reference. For example, it may uncover flaws in the Inquiries Act under which it operates or it may encounter wrongdoing in public office which is only tangential to the issue of public concern which led to its establishment. On the face of it, the terms of reference would not permit any recommendations to be made to address those matters but by section 24(1) of the Inquiries Act 2005 the report of a public inquiry operating under the Act may also contain anything else that the Panel considers to be relevant to the terms of reference (including any recommendations the Panel sees fit to make despite not being required to do so by the terms of reference).