Receipt of Documents
The inquiry may receive copious volumes of materials, particularly in a situation where public concern has arisen due to apparent failures in previous investigations. The Robert Hamill Inquiry, for example, received an array of papers including those from the original murder investigation, the reinvestigation into the murder, an investigation into a complaint against police inaction, internal disciplinary proceedings, investigation by the Police Ombudsman and papers from the Director of Public Prosecutions for Northern Ireland, as well as papers from Judge Cory, who had conducted a preliminary investigation to advise whether there were events which may have caused public concern. In total the Inquiry received approximately 20,000 documents, which amounted to about 75,000 pages. The Zahid Mubarek Inquiry considered more than 15,000 pages of documentary evidence, taking into account the investigations into the tragedy that had already taken place - in particular those by the Prison Service and the Commission for Racial Equality. The Stephen Lawrence Inquiry would have had a similar series of papers, including those for the murder investigation, the Police Complaints Authority investigation and the private prosecution. The document management will therefore be crucial to how easily, quickly and successfully the inquiry team can become acquainted with the issues, and hence to the ultimate success of the inquiry.
With a large number of documents, far greater than most lawyers will be accustomed to in trials, electronic document management will probably need to be employed in order to ensure efficient and orderly storage and the fast retrieval of documents.
Initial read-through of the documents
The first job to be done is to sort the available documents and label every page with the following data:
- The source of the information
- Whether the document is a duplicate and if so, a record of the multiple sources
- The names of potential witnesses named in the documents.
After this stage, the bundle may be renumbered so that the remaining pages have continuous pagination, perhaps chronologically although provided that every page has a unique reference number there is no need to re-label them.
When undertaking this initial read-through of documents it is suggested that every occurrence of a personís name be marked in the documents with a unique and searchable nominal. Software is available to cover over the name and grant every witness a nominal. An exhaustive list should be drawn compiling all names, however insignificant some may appear to be on a first reading of the documents.
This task will most likely be undertaken by someone with the function and skills of a Document Manager.
Determination of the preliminary issues
By the time that a public inquiry is formally established, considerable analysis and commentary will have taken place, both to determine the level of public concern and to set the inquiry's terms of reference.
In the first instance, the terms of reference should be examined word by word to set the scope of a set of preliminary issues. The terms of reference given to inquiries have varied hugely in their detail. In some cases, such as the Shipman Inquiry or the Victoria Climbié Inquiry, the terms of reference have been drawn in some detail over a number of paragraphs to give a framework to the issues that the inquiry is required to investigate. In others, such as the Lord Penrose inquiry into Equitable Life or the Dunblane Inquiry, the terms of reference have been drawn in the form of requiring investigation into a set of circumstances and making recommendations, in which case establishing the preliminary issues will require some research.
The calls for the inquiry to be established will have already outlined provisional concerns. NGOs and the media may have already commented on what they consider the issues to be. While this is of course not binding on the public inquiry, if it is to bridge the fulfilment of its terms of reference and the assuaging of public concern, it may well be guided by public opinion commentators as to how the concern has been manifested.
Almost all terms of reference will require a fact-finding investigation and determination of the events that have given rise to the public concern.
It is suggested that the identification of the preliminary issues from the terms of reference should be set neither too early, nor too rigidly.
This task will most likely be undertaken by Inquiry Counsel with the assistance of other members of the inquiry. In some cases it may be felt appropriate to establish a legal or police team specifically to make further investigations if the document review and the issues demonstrate that the information available is inadequate. The Rosemary Nelson Inquiry for example had a police team reconsidering the murder of Rosemary Nelson.
Draw up a chronology
It may be helpful to compile a master chronology, using précises of the documents with the page numbers of the evidence, the persons involved, the relevant dates and the issues touched upon for each entry.
Establish what is material
To establish what is material, it is suggested that Inquiry Counsel undertake a second read-through of the documents. By reference to the issues arising from the terms of reference and the fact-finding investigation documents should be deemed relevant or irrelevant.
There are two principles in play. First is that the process is inquisitorial and accordingly that the inquiry has the function of deciding which documents to use and serve. The appropriate test is whether, in its reasonable view, the materials are relevant to its terms of reference as understood by the list of issues. The second principle is fairness to witnesses (and interested parties) and those who may be criticised and the concomitant need to allow them access to documents that may enable them to rebut allegations made against them.
The second principle relates to the core and material distinction, analogous to that is used by the Court of Appeal in bundles larger than 500 pages (Practice Direction 52). The core bundle includes those materials that the inquiry team regards as relevant to the terms of reference. The material bundle additionally includes all materials, which are served in the interests of fairness to witnesses and others. This distinction may have little effect in practice. However the distinction may be used to guide which documents are subsequently made available to the public and which are deemed irrelevant.
This task may be performed by Inquiry Counsel, however any restriction on the publicís access to documents, to which they are entitled by section 18, must be made by section 19(2), namely by the Chairman or the Minister. Thus, the authority to determine which documents are relevant will be delegated to Counsel from the Chairman.
Public Interest Immunity
If a public body was the originator of any document, it should be given the opportunity to claim public interest immunity. This process should be undertaken before interviewing witnesses to ensure that witnesses will be shown, and given the opportunity to explain, vital documents.
A protocol for adaptation suggested for the procedure to determine public interest immunity.
Assessing the witnesses to interview
Using the list of all witnesses in conjunction with the list of issues, each witness should be assessed as to their suitability for interview. A list should be made of those who appear to be sufficiently relevant to determining the terms of reference to justify being interviewed.
Since a public inquiry is established as a result of public concern, the inquiry should draw this list widely, with the aim of being exhaustive, and being seen to be exhaustive, in its investigation of the terms of reference.
Redaction and anonymity of witnesses
Redaction means Ďto prepare for publicationí but in a legal context this will generally involve the removal of personal details or names from the papers before making them public.
Having drawn a list of those relevant to the terms of reference there will be a category of persons appearing on the exhaustive list who are not sufficiently relevant to interview. Anyone who is utterly irrelevant to the terms of reference but who appears in the documents could rightly have their name removed in order to respect Data Protection Act obligations if the public inquiry team considers that the expense required to hear and determine their claim outweighs the public interest in having unredacted documents.
Those witnesses who enjoy anonymity may be ciphered. Clearly, the nature of exposing names will mean that while anonymity decisions are pending, anonymity must be the default position.
If, as is suggested, every appearance of a witness name is marked with a nominal which is logged electronically, redaction and replacement of names may be done conveniently and rapidly using appropriate software.
It is desirable to have the hearings as open as possible, however the Rosemary Nelson Inquiry was unchallenged in their decision to make a provisional grant of anonymity prior to evidence being led and make the final decision at the end of the oral evidence. Such an approach is not unlawful by section 19(4)(d) to the extent to which not imposing any particular restriction would be likely to cause delay or to impair the efficiency or effectiveness of the inquiry or otherwise to result in additional cost (whether to public funds or to witnesses or others).
Anonymity must be determined according to the legal test.