Enforcement proceedings under the Inquiries Act

Criminal or Civil proceedings

Compliance with a section 21 notice can be enforced by two routes - either criminal or civil proceedings. Section 36 provides for certification to the High Court and section 35(1) makes it an offence to fail to comply with a notice referral to the Director of Public Prosecutions, found in sections 35 and 36.

Essentially, section 35 is intended to be punitive, while section 36 is intended to be coercive. The former section is criminal in nature and the latter civil. Both may carry sanctions. The maximum penalty for non-compliance with section 36 would be committal for contempt, which carries an unlimited fine and a maximum sentence of two years per Contempt of Court Act 1981, section 14. The maximum penalty for the offence contained within section 35 is 51 weeks imprisonment in England and Wales and 6 months in Northern Ireland.

The High Court of Northern Ireland in Paisley, Re Section 36 of the Inquiries Act 2005 [2008] was clear that section 36 is in sharp contrast to section 35. There is a deliberate omission of the word ‘offence’ in section 36 and that no prosecution is instituted once section 36 is invoked. This confirms the coercive and remedial nature of section 36, notwithstanding the use of the word ‘enforcement’. The Explanatory Notes to the Inquiries Act 2005 state that “in the cases of notices issued under powers of compulsion in section 21, enforcement by the appropriate court is an alternative mechanism and could be used in cases where a prosecution might not be the best way of obtaining evidence.”

A sample of a certificate issued under section 36 can be found here.

Certification to the High Court under section 36

Where a person fails to comply with or acts in breach of a notice under section 19 or 21, or threatens to do so, the Chairman may certify the matter to the appropriate court.

It is clear that the judge to whom the matter is certified has the power to review the reasonableness of the certification and of the original notice, ab initio, and the court “may make such order by way of enforcement [of the notice] or otherwise”. The court must examine all the circumstances surrounding the making of the section 21 notice and must examine whether it is reasonable in all the circumstances with the recipient of the notice to comply with it. Specifically, in considering a certification under section 36, the judge is not constrained to the grounds that would be available in a judicial review, nor must a certification under section 36 be brought within a 14-day time limit, as with other judicial review actions under section 38.

Referral to the Director of Public Prosecutions under section 35

There are three offences contained within section 35.

Under section 35(1), a person is guilty of an offence if he fails to do without reasonable excuse anything that he is required to do by a notice under section 21.

Section 35(2) is drawn considerably more broadly than section 35(1) and is not limited to failure to comply with a notice. A person is guilty of an offence if he does anything that is intended to have the effect of distorting or otherwise altering any evidence, document or other things that is given, produced or provided to the inquiry Panel; or preventing any evidence, document or other things from being given.

Under section 35(3) a person is guilty of an offence if he intentionally suppresses or conceals a document that is, and that he knows or believes to be, a relevant document, or he intentionally alters or destroys any such document. A relevant document is a document that the inquiry would (if aware of its existence) wish to be provided with. It is suggested that this should be construed widely and, as suggested in the discussion on section 21, should not be limited to that which is necessary to determine the issues of fact apparently inherent in the terms of reference but will also include tangential matters relating to, for example, the compulsion of witnesses.

The Chairman cannot, by section 35(6), commence proceedings for an offence under sub sections 35(2) and 35(3). The usual way for proceedings to commence would be for the public inquiry to write a letter to the Chief Constable or to the Director of Public Prosecutions, or in Northern Ireland to the Director of Public Prosecutions for Northern Ireland, setting out the facts which have caused concern.

A person who is guilty of an offence under section 35 is liable to a fine not exceeding level three on the standard scale. This, from the Criminal Justice Act s.37(2) 1982 as amended by the Criminal Justice Act 1991, is £1,000. They may also be liable to imprisonment not exceeding 51 weeks in England and Wales or 6 months in Scotland and Northern Ireland.