Can you refuse to give evidence to a public inquiry?

16 November 2021

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 [2021] 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.

 

Comment

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).

Further Information

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.

Should you have any questions about the issues covered in this blog, please contact Nick Wrightson or a member of our Public Law team.

 

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.

 

Latest blogs & news

Mandatory Covid-19 Vaccinations for Care Home Workers

This week, the Government announced that Covid-19 vaccinations will be made compulsory for care home staff, raising strong emotions on both sides of the argument.

Coaching, Teaching and Support Work in Lockdown: Safeguarding and Data Protection considerations when working with children online

The COVID-19 crisis has forced sports clubs, schools, universities and charities to rapidly change their approaches to coaching, teaching and support work. The regulations on social distancing have forced organisations to innovate; services which had previously been offered mostly or wholly in person were rapidly shifted online during “lockdown 1” and will return online at least for the duration of “lockdown 3”.  If the vaccine rollout has the desired effect there will no doubt be some return to “traditional” methods, but it seems very unlikely that the changes brought about by the pandemic will be completely reversed.  In this blog, Claire Parry from Kingsley Napley’s Regulatory team and Fred Allen from the Public Law team look at the challenges organisations face engaging with children online.

Regulation and Uptake of the COVID-19 Vaccine

The government has now approved the supply of the Pfizer-BioNTech COVID-19 vaccine. The reason they have been able to do this so quickly is because they have taken advantage of the temporary authorisation regime laid out by the Human Medicine Regulations of 2012 and 2020. The 2012 Regulations were updated in 2020 specifically to facilitate the smooth rollout of the COVID-19 vaccine. In the public consultation preceding the introduction of these updated regulations, several respondents raised concerns regarding unlicensed vaccines and immunity from civil liability. In practice, very little is known about these regulations and their application. This article seeks to shed some light on the temporary authorisation regime and suggest a means of alleviating concerns in the context of “vaccine hesitancy”.

Parliamentary scrutiny in the time of Coronavirus

As a new nationwide lockdown comes into effect, Stephen Parkinson and Charlie Roe from our Public Law team, consider the often limited role of Parliament in scrutinising restrictive regulations throughout the COVID-19 pandemic.

The inquest process during COVID-19 restrictions

Inquest proceedings, like other legal proceedings in the UK, have been significantly affected by social distancing restrictions and advice arising from the COVID-19 crisis. This blog looks briefly at the impact of the Coronavirus Act 2020 on proceedings, and examines the Chief Coroner’s guidance notes to coroners working during the crisis.

The future public inquiry into COVID-19

The devastation wrought by COVID-19 has led to profound questions about the UK government’s response to the pandemic. Calls for a public inquiry are continuing to mount and are likely to prove difficult to resist. This blog considers the framework for such inquiries, and the key issues likely to form the core of its terms of reference.

COVID-19 and contact tracing apps: A test of public confidence in data privacy?

Dominic Raab announced last week that the current UK lockdown would last for at least another three weeks. These restrictions are unlikely to be relaxed until a large scale plan is in place to track and restrict the spread of the virus. Part of this plan will involve the use of the NHS “contact tracing” app, which we have been told is in an advanced stage of development.

Share insightLinkedIn Twitter Facebook Email to a friend Print

Email this page to a friend

We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.

Leave a comment

Skip to content Home About Us Insights Services Contact Accessibility