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In a 16 November 2021 blog, I described how refusing to give evidence to a public inquiry might play out. Another new case, Chairman of the Manchester Arena Inquiry v Romdhan  EWHC 3274 (Admin), reinforces my view. Potential witnesses in next year’s coronavirus (Covid-19) inquiry take note.
For a discussion of the power to compel a witness and the relevant legislation, please refer to my earlier blog.
This case again relates to the Manchester Arena Inquiry (investigating the deaths of the victims of the 2017 Manchester Arena attack). Mr Romdhan is the older brother of Salman Abedi (the arena bomber) and Hashem Abedi (convicted of murder for the attack). Mr Romdhan was previously known as Ismale Abedi.
Mr Romdhan was issued with a notice under section 21 of the Inquiries Act 2005 (the “Act”) in July 2020, requiring him to attend a hearing of the inquiry and give live evidence. Extensive correspondence between Mr Romdhan’s lawyers and the inquiry followed and he did not attend to give evidence while various matters were debated. Eventually, on 22 July 2021, Mr Romdhan was issued with a second notice under section 21 of the Act, again requiring him to attend a hearing of the inquiry and give live evidence. The date for his appearance was fixed as 21 October 2021. Instead of complying, on 29 August 2021 Mr Romdhan boarded a flight for Istanbul. He appears to have remained outside the UK ever since.
Mr Romdhan’s main explanation for his conduct has been that he wishes to assert the privilege against self-incrimination and to avoid putting members of his family at risk. Mr Romdhan has also argued that the inquiry has other evidence before it through which to address the matters to which his evidence might relate (i.e. broadly the radicalisation of Salman Abedi and the storage of the bomb).
Following further correspondence with Mr Romdhan’s lawyers, on 26 October 2021, the Chair of the inquiry applied to the High Court under section 36 of the Act for a witness summons supported by a bench warrant. If granted, these would allow Mr Romdhan to be arrested and brought before the inquiry in the future, or face criminal prosecution.
These principles were agreed by the parties to arise from the recent cases dealing with applications like this:
(a) Whilst the decision of the inquiry Chair must carry weight, or considerable weight, the court must give due and proper consideration as to whether or not it is appropriate to make an enforcement order.
(b) Section 36 is remedial in nature and calculated to secure compliance – with the focus being on obtaining the relevant information rather than punishment.
(c) Issuing a bench warrant is an extreme remedy and must only be done when it is “necessary” – with the test being one of necessity and proportionality, which involves the weighing up of the competing interests.
The court accepted the submissions on behalf of the Chair (which were partially unopposed) that there were compelling reasons to conclude that Mr Romdhan had relevant evidence to give to the inquiry. The court was also persuaded by the argument that intransigent witnesses will often give evidence once they have been compelled to attend. This was what actually happened in relation to another reluctant witness before the Manchester Arena inquiry, Mr Abdallah. The court concluded that the Chair was fully entitled to proceed on the basis that that would also happen in Mr Romdhan’s case. Finally, the court noted the fair procedure adopted by the Manchester Arena inquiry, particularly in relation to dealing with claims of the privilege against self-incrimination.
The court rejected the submissions on behalf of Mr Romdhan that the issue of a warrant would serve only to discourage Mr Romdhan from returning to the jurisdiction during the period of the inquiry, thus defeating the purpose of section 36 of the Act (i.e. the obtaining of evidence). The court also rejected the submission that a warrant should not be issued because it could not be enforced outside the UK. These arguments were said to come “close to the [unsupportable] proposition that the harder a person has tried to avoid providing evidence the less appropriate it is for a warrant to be granted in relation to them.”
In light of these considerations, and applying the three principles at (a) to (c) above, the court weighed up the competing interests of necessity and proportionality, and concluded that the issue of a warrant was plainly necessary.
This case reinforces the view expressed in my earlier blog that the Chair of a statutory public inquiry has strong powers to compel a witness to attend and give their evidence. If a witness has obviously relevant evidence to give and is resisting doing so, they are likely to struggle to avoid being compelled to give it.
In this case, the witness relied on the privilege against self-incrimination but this did not tip the balance against a bench warrant being issued. When faced with this scenario, the court will need to consider whether the witness can talk about something substantial and relevant beyond the matters to which the privilege against self-incrimination appears to apply, and whether the public inquiry has established a fair procedure for dealing with claims that the privilege is engaged.
Far from assisting a reluctant witness, if the witness goes to great lengths to avoid attending the hearing of a statutory public inquiry this is, if anything, likely to convince the court that a warrant for their arrest is necessary. It is also likely to generate a critical public judgment and the kind of negative media coverage towards the witness that was produced in this case (e.g. from the BBC and Daily Mail).
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.
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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