Individuals asked to give evidence to public inquiries often wonder whether they really have a choice. The case of Chairman of the Manchester Arena Inquiry v Taghdi  EWHC 2878 (Admin) illustrates how refusing to participate might play out. Potential witnesses in next year’s coronavirus (Covid-19) inquiry take note.
The power to compel a witness
Most witnesses who give evidence at statutory public inquiries are invited to do so by consent, following a request for a written witness statement under Rule 9 of the Inquiry Rules 2006. If the witness’s written statement shows that they have relevant evidence to give, and if their evidence is sufficiently important or contested to justify hearing from them directly, they will be asked to attend the hearings of the inquiry and give live oral evidence on a suitable date.
If a witness with relevant evidence refuses to participate, however, section 21 of the Inquiries Act 2005 (the “Act”) empowers the Chair of a statutory public inquiry to issue a notice directing the witness to attend and give their evidence. If that person fails to appear, or threatens to breach the Chair’s direction, the Chair can apply to the High Court under section 36 of the Act for a witness summons to enforce the direction. The consequence of this step is that, if the witness continues to resist, they can be arrested and brought before the inquiry to give their evidence.
Mr Taghdi’s reluctance to give evidence
Even when dealing with very reluctant witnesses, it is unusual for all the steps described above to play out. Occasionally, if a witness digs in their heels and is of limited interest to the inquiry, the Chair may find another way to deal with the matters to which the witness can speak. Where a witness is more central to the inquiry, a section 21 notice directing attendance will generally be persuasive enough for the witness to attend. Most people recognise the important public interest in public inquiries hearing their evidence, and are keen to avoid drawing unwanted attention and public criticism upon themselves by working against the inquiry process.
Sometimes, however, a witness is so reluctant, or has such compelling reasons to resist giving evidence, and the inquiry regards them as so important, that the matter does end up before the High Court. Taghdi is the most recent example of this, and relates to the ongoing Manchester Arena Inquiry (investigating the deaths of the victims of the 2017 Manchester Arena attack).
Mr Taghdi was a friend of the individual who detonated the bomb at the Arena, and of the bomber’s brother, who was convicted of murder after a trial at the Old Bailey. Mr Taghdi had given a witness statement in the criminal process, which was read out at the trial, but he did not give live evidence.
The reasons for Mr Taghdi’s reluctance to participate in the public inquiry may be summarised as follows:
- The Chair had recognised him as a vulnerable witness, but not all the special measures he had asked for had been provided (including anonymity);
- He was fearful of the risks to his family and himself if he were to give evidence and did not consider the security arrangements that had been put in place to be adequate; and
- Psychiatric evidence showed that he suffered from a mild depressive illness. He would be anxious about giving evidence, especially in light of the other points above.
Mr Taghdi did not give evidence as originally scheduled in December 2020 and arguments were instead advanced about his health at the time. A section 21 notice was then issued in September 2021 naming a second date for Mr Taghdi to appear in October 2021, but Mr Taghdi’s stated position was that he was still not willing to give evidence. The Chair of the inquiry therefore applied to the High Court for a witness summons to compel him to attend.
The court’s analysis
The court confirmed that its power under section 36 of the Act is not a rubber stamping exercise. Judges must give due and proper consideration to whether or not a witness summons should be granted. In doing so, however, the Chair’s decisions relating to the running of the inquiry and the appropriate procedural special measures and security safeguards will carry considerable weight. The question of whether Mr Taghdi had relevant evidence to give might have been an important factor, had the answer been less clear cut, but the court found that it was beyond argument that he did.
Bearing in mind the above considerations the court assessed each argument raised by Mr Taghdi against granting the witness summons. It concluded that the special measures put in place by the Chair struck an appropriate balance between Mr Taghdi’s personal factors and the public interest in a public inquiry being open to the public and the interests of core participants, including bereaved families. Similarly, there was no reason to think the security measures put in place by the Chair, which had twice been assessed by police, were inadequate or inappropriate. Anonymity was not appropriate because Mr Taghdi’s evidence in the criminal trial had been read publicly and reported without any sign that an application for anonymity had been made. Those granted anonymity in the criminal trial had retained their anonymity in the public inquiry, but it was reasonable to treat them differently from Mr Taghdi because their identities were still “beneath the surface”, whereas his was not. In light of these conclusions, and the clear relevance of Mr Taghdi’s evidence, the court exercised its discretion and granted the witness summons.
It was argued that a bench warrant allowing Mr Taghdi to be arrested and brought before the inquiry if he failed to comply was unnecessary. The court disagreed. It considered that Mr Taghdi had made clear on several occasions that he was not going to give evidence and found that there was a “very strong possibility to say the least, that a witness summons on its own will be ineffective”. It was very important for the inquiry timetable that Mr Taghdi’s evidence be heard in October 2021, so a bench warrant was ordered.
This case demonstrates that the Chair of a statutory public inquiry has strong powers to compel a witness to attend and give their evidence. While the court has the discretion to grant or refuse a section 36 application, the Chair’s decisions relating to the running of the inquiry and the appropriate special measures and security safeguards are given considerable weight. If a witness has obviously relevant evidence to give, they are likely to struggle to resist being compelled to give it. That is even true of vulnerable witnesses like Mr Taghdi, so long as the Chair has struck a sensible balance between competing considerations in determining which procedural special measures and security safeguards should be applied.
Being a witness in a public inquiry is a stressful and anxiety inducing experience for most people, but that stress and anxiety may be compounded by digging in and fighting against the process. In this case, Mr Taghdi’s High Court battle with the Chair if the inquiry was covered in the national media (e.g. the BBC) as well as being immortalised in a public judgment (here).
The sad outcome for Mr Taghdi was reportedly that he even attempted to leave the country to avoid giving evidence. It seems he was therefore arrested and brought before the inquiry to give his evidence in some of the worst imaginable circumstances for his credibility. (This whole episode was covered in the press, including in the Manchester Evening News).
Kingsley Napley LLP regularly represents parties in public inquiries and has been involved in many of the highest profile inquires of recent years. Our lawyers also blog regularly about public law matters. Follow our Public Law blog for the latest commentary.
About the Author
Nick Wrightson is a Partner in our Public Law team. Nick has an administrative and public law practice focused on judicial review litigation and supporting clients through public inquiries and complex inquests. Nick’s experience includes representing public bodies, private companies, individuals, representative bodies and charities – often in high stakes, politically and commercially sensitive cases.
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