Advocacy on a postage stamp

Robert Francis QC considers what work there is for counsel at public inquiries

On coming to the Bar most of us did not foresee the need to exercise our newly found skills by pushing post-it notes to another barrister suggesting questions for him or her to ask. Yet that appears to be the fate of many instructed to appear for a core participant at a public inquiry. Another activity at some inquiries seems to be careful self positioning near Counsel to the Inquiry for the benefit of the TV cameras.

Having both done the note pushing and watched others doing it, I have had plenty of time to reflect on what is involved in inquiry advocacy. What follows is based on my experience rather than an exhaustive survey of all inquiries, and the detailed procedure adopted by each is different. Some give more latitude for questions than others.

We think of public inquiries as the full blown version under the Inquiries Act 2005, but many non-statutory inquiries share similar characteristics. One is chairmen’s lack of enthusiasm for lawyers indulging in prolonged cross examination of witnesses. Counsel to the inquiry are expected to do the bulk of the questioning, and everyone else is expected to feed their desired lines of inquiry to this team. Inquiries could be endless if rows of lawyers are allowed to range widely over every disputed point. However these restrictions can be intensely frustrating; none of us thinks our colleagues can ever ask a question as well as we can. They can also make it difficult to decide when a legal representative is actually needed at the hearing, and it is wise for the benefit of the client’s purse and the lawyer’s sanity to try to work out a plan in advance about when the latter’s presence will be required.

So is there a place at inquiries for the arts of advocacy at all for those of us not fortunate enough to be appointed as Counsel to the Inquiry? The answer is a resounding “yes”. Advocates can play a vital role at various stages in ensuring that a client involved in an inquiry is dealt with fairly and accurately, albeit mainly behind the scenes.

Decision whether or not to hold an inquiry

The decision to hold a public inquiry under the Inquiries Act 2005 is entirely in the hands of the Government. Governments do not like calling public inquiries. The cynic will suggest this is because they do not want their own deficiencies exposed, but there are more respectable reasons for this reluctance. Public inquiries are notoriously expensive, and, once launched, there is little control over their cost or length of time taken, and the resource burden on public bodies under scrutiny can be immense. So the first issue that may arise is a challenge to a decision not to hold a public inquiry or as to the scope of an inquiry that has been ordered. Those challenging a refusal of a public inquiry may often have an uphill task. Clarke LJ in the Thames Safety Inquiry Final Report (Thames Safety Final Report (2000) (Cmnd 4558) para 5.1) stated baldly that no member of the public had a right to a public inquiry. However, Articles 2 and 3 of the ECHR can give rise to an obligation to have independent, effective and prompt investigations involving proper public scrutiny and involvement of those affected. Where these Articles are engaged, and no adequate alternative means of investigation have been deployed, some form of public inquiry may be necessary. The courts have shown some reluctance actually to require the holding of an inquiry but there are indications that in the right case this will be ordered.

Appointment of the panel and assessors

In a 2005 Act inquiry the chairman and any other panel members are appointed by the relevant Minister who is obliged to have regard to various specified factors, such as expertise and independence (see sections 8, 9, 11). So theoretically such appointments can be challenged. Whether it is wise to do so is another matter given the awkwardness following a failure in the challenge. However if expert assessors are appointed, legal representatives may wish to consider clarifying the circumstances in which advice tendered to the panel by assessors will be disclosed to the core participants or the public so comment can be made on it.

Designation of core participants

The real entry ticket for interested parties and their lawyers to inquiry proceedings is designation as a “core participant”. The chairman has a discretion to whom to accord this status, but must have regard to whether the person played a direct and significant role in the relevant matters, or has a significant interest in them, or may be subject to explicit or significant criticism. (Inquiry Rules 2006 (SI 2006/1835) rule 5). Not all within these categories will necessary be offered or desire such status and at least in theory parties not coming within them might seek it. The principal advantages of the status is that core participants are entitled to appoint a legal representative who must be recognised by the inquiry, unless joint representationis directed, and they are entitled to make opening and closing statements, and to apply for an award of legal costs, (a subject worthy of a textbook of its own). Additionally core participants will usually have access to evidence the inquiry intends to adduce in advance of the hearing and are therefore better able to participate in ensuring the adequate questioning of witnesses. I suspect that many organisations hoping to save money by not applying for this status come to regret it as they find a focus shifting towards them which they did not predict.

Disclosure and production of documents

Inquiries generally require voluminous quantities of documentation to be produced. Statutory inquiries can compel the production of documents but are largely dependent on the cooperation of interested parties to produce them. Legal advisers have an important role in educating often unwilling clients about the need to be scrupulous and thorough in their disclosure. A failure to disclose relevant material can put the party concerned in a very bad light, and, if a breach of an order of the inquiry, can be dealt with as a contempt of court, or an offence (see the Act sections 21, 35, 36). On the other hand disproportionate disclosure of irrelevant or trivial material can add to the cost and duration of inquiries. Therefore the sensible course is one of cooperative dialogue with the inquiry team. One of the issues which will commonly arise is the extent to which documentary material should be redacted before allowed into the public domain, and whether restriction orders should be sought in that regard.

Witness statements

At most inquiries evidence is obtained initially by witness statements. These may sometimes be sufficient and further oral evidence will not then be required. Inquiries will often require statements to be taken by their own teams rather than accept those offered by or on behalf of the witness. Even experienced and senior officials can misunderstand the significance and importance of this process. It is one for which they should be properly prepared in the knowledge that the statement is very likely to end up in the public domain and will form the basis of their examination at a public hearing. It will often be desirable for a legal adviser to attend the taking of a statement. This is therefore an area where the assistance of an experienced advocate may be invaluable.

One of the challenges facing all concerned with an inquiry is the difficulty in predicting what will be seen to be important. However assiduous the preparation of a list of issues at the outset, it is in the nature of an inquisitorial process that information may come to light which changes the significance and nature of the evidence being sought from witnesses. An involvement which may have seemed unimportant may in the light of the evidence of others suddenly appear crucial. Therefore an important role of a legal adviser is to be thoroughly on top of the evidence as it arrives, and the documents which are produced by others. An organisation which shows that it is learning from the evidence as the inquiry proceeds is likely to be more readily viewed favourably than one which steadfastly asserts that nothing need change. Witnesses giving oral evidence who appear familiar with what has gone before may well get a better hearing than those who seem not to care. In complex inquiries the need to be able to advise on and react to the twists and turns of the evidence present a formidable task to legal representatives. It requires careful advance planning of how this is to be done and in particular how to ensure ready access to appropriately senior and authorised decision makers within an organisation.

Opening statements

A core participant has the right to make an oral opening statement. The inquiry procedure may well provide a timetable for this, limiting its length. Consideration should be given to offering a written opening statement (even if this is not requested) which can be summarised orally. This provides a valuable opportunity to indicate the position taken by the participant but also, where relevant, to contribute to the maintenance of public confidence in the individual or organisation concerned. For example, if it is clear that responsibility for some recognised deficiency lies with the core participant the statement provides a means of demonstrating that steps have been taken to rectify it, and of offering a public expression of regret and apology for what went wrong. It would be imprudent to be over assertive in denials which may be undermined by evidence which may not have been disclosed at that stage, but a statement can help the inquiry identify issues which should be explored.

Oral examination of witnesses

The Inquiry Rules are quite clear about the normal starting point: ... where a witness is giving oral evidence at an inquiry hearing, only counsel to the inquiry [or the inquiry solicitor] and the inquiry panel may ask questions of that witness [see rule 10].

The exceptions are

  • Where the chairman has directed, the legal representative of a witness can re-examine their witness;
  • Where a non-core participant gives evidence relating to a core participant, the latter, with the chairman’s permission, may question the witness;
  • The legal representative of any core participant may apply for permission to question a witness.

In the latter two cases, but not the first, the representative must state the issues on which the witness is to be questioned, whether new issues will be raised, and if not, the reasons why questioning should be permitted.

Willingness of inquiries to allow questioning will vary. Where there is a detailed investigation into facts or responsibilities not previously established more latitude may be granted, but chairmen may be very reluctant to open a door which cannot then be closed. Initially representatives may be expected to liaise in advance with counsel to the inquiry to ask him/her to question witnesses on particular themes, material or suggestions. It can be helpful to prepare schedules of what is required. If Counsel to the Inquiry does not pursue a desired line of questioning such a schedule may strengthen an application for permission to examine directly. The omission by Counsel to the Inquiry to ask a particular question or series of questions does not mean that permission will be granted. As at an inquest what advocates can do is almost entirely a matter for the coroner’s discretion. In any event the usual dangers of asking too many questions lurk for the unwary at inquiries just as they do elsewhere. Trying to tie down every last detail can result in interesting the inquiry in areas where the client might otherwise have escaped notice. The witness may give unanticipated answers adverse to the client’s interests. Raising the client’s profile by extensive questioning may draw unhelpful public attention. On the other hand, failure to correct something that may become important may lead to errors in the report.

Warning letters

A statutory inquiry cannot make an explicit or significant criticism of any person unless a warning letter complying with the rules has been served and a reasonable opportunity given to respond to it. The rules create a mutual and enforceable duty of confidentiality between the inquiry and the individual concerned with regard to such letters. The stage at which such letters are served and their form is variable, but legal representatives have an important role to play in drafting responses and in choosing what if any additional evidence to offer and whether to request a further oral hearing.

The report

Before publication interested parties have to be allowed advance sight of the report. This tends to amount to a relatively short time under conditions of strict confidentiality. Whether or not criticised those affected by the inquiry will almost invariably wish to prepare a public reaction to the report. Time for this may be limited and legal advisers can be of great assistance in rapidly distilling the essence of a report and its significance for the client. Of course the content may be thought to be erroneous or unfairly critical. In theory an inquiry that had contravened its rules or had made perverse conclusions may be vulnerable to judicial review, but as the cat will be out of the bag before an application could be launched, this might not help much. So probably it is better to offer a reasoned and public rebuttal if this is thought wise. Public inquiries gain or lose effectiveness by the authority accorded to them by those who receive them, and resources might be better used at this stage in seeking to influence the opinion of those who have to decide whether to implement a report. At this stage it is more than likely that wise lawyers quietly leave the stage - taking with them the few post-its they did not use.

Robert Francis QC Serjeants’ Inn Chambers

Author details: