Inquiries: how Core Participants are involved in oral hearings – questioning witnesses

In a public inquiry, Core Participants (CPs) and their Recognised Legal Representatives (RLRs) do not have a right as a matter of course to question witnesses. Rule 10(1) of the Inquiry Rules 2006 provides that:

(1) Subject to paragraphs (2) to (5), where a witness is giving oral evidence at an inquiry hearing, only counsel to the inquiry (or, if counsel has not been appointed, the solicitor to the inquiry) and the inquiry panel may ask questions of that witness.

Except where the Chair directs under r.10(2), CPs must obtain permission to ask questions (see r.10(3)-(5)). Given this, how far a CP can expect to be involved is far less predictable than in other jurisdictions. To make the most of the opportunities that are available, it is essential for CPs to approach applications with care and be aware of the potential pitfalls in the r.10 process.

The process for applying under r.10 and the challenges it presents

CPs can expect to be notified of how the r.10 process will be run in advance of oral hearings commencing. In some inquiries, the Inquiry Team will provide CPs with an evidence outline indicating which topics and documents they intend to address with a witness before the deadline for making r.10 applications. Other inquiries will not give this indication and, in the latter case, it is important not to make assumptions about what ground will be covered. Once applications have been made, the Chair will decide which, if any, are permitted and to what extent: applications may be refused, permitted, permitted in part, or the Chair may agree that the topic, question, or document should be put to the witness but decide that this ought to be done by Counsel to the Inquiry (CTI) rather than the CP’s RLR. In some inquiries, almost all of the questioning will be done by CTI and CPs will ask very few questions of witnesses directly.

It is important to advise clients that the Chair may decline to allow questions proposed on their behalf and, if a proposed topic is covered by CTI, it may be done in a different way to that suggested by the CP. This is not a reason to shy away from proposing questions, but it is important for a client to be aware that ultimately it is up to the Inquiry, not the CP or their RLR, whether and how questions will be asked. There is, therefore, an unavoidable risk that asking certain questions may backfire. The uncertainty inherent in the r.10 process is exacerbated by the fact that the deadline for making applications is typically some time in advance of the witness giving evidence and, due to rolling disclosure and concurrent oral evidence, the evidential landscape is constantly changing: a r.10 application which appeared well-judged a week ago may seem less so by the time the witness gives evidence.

Proactively manage the process from start to finish

So how should CPs and their RLRs make the best of the r.10 process? First and foremost, it is important to proactively engage with the process from start to finish. The first step is to form a clear view of what really matters to your client. The risks and limitations in the r.10 process mean it is vital to identify at an early stage what points you really want the inquiry to understand by the end of the oral evidence and to focus your efforts on those rather than attempting to pick up on every possible clarification or correction. Ensuring that the points you want to make are well founded in the evidence is also essential: the best way to shore up a question when you cannot control how it is asked is to ground it firmly in clear documentary evidence.

Having identified your objectives, it is also crucial to have a clear process in place for dealing with applications. It goes without saying that missing the deadline or filing an application in the wrong format will harm your chances of success and much of the work in putting together a strong application can be done in advance (although ongoing disclosure and oral evidence, and reviewing the evidence outline if provided, will usually mean there is at least some work to do right up until the deadline).

Finally, review every application with a critical eye.  Does it aim to further your key objectives? How might it backfire? Is it still worth pursuing in light of this? At least insofar as questioning witnesses is concerned, the level of involvement CPs have in public inquiries can, in some cases, be quite limited. Adopting a proactive, targeted, informed approach enables CPs to take full advantage of the opportunities which are available.

Jennifer is a specialist in public inquiries and inquests, and is ranked in both Chambers and Partners and Legal 500. She is currently acting for CPs in the Post Office Horizon IT Inquiry and the Thirlwall Inquiry. She previously acted in the Brook House Inquiry and Independent Inquiry into Child Sexual Abuse.

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Authors

Jennifer Wright

Call 2018

Related areas

Public Inquiries

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