Why a statutory inquiry?
In his blog of 2 November 2014 http://davidhencke.wordpress.com/2014/11/02/child-sex-abuse-inquiry-debacle-why-it-is-important-where-we-go-next/#comment-14969 David Henke (‘DH’) suggests caution in urging the Home Secretary to hold a statutory child sex abuse inquiry. I expressed concern about the passages below in his article; but he assured me he had spoken to ‘another child abuse lawyer @Richard_Scorer ’ (I wouldn’t call myself and ‘abuse’ lawyer: just a family lawyer, with a special interest in administrative law (ie judicial review)).
Mr Scorer, he told me, ‘seems to think I have got it right and even underestimated the position.’ This is Richard Scorer: ‘lawyer, national head of abuse team…. author & Labour councillor…’. These are the passages which troubled me:
(1) ‘a statutory inquiry which can compel people to attend, give information, force people to confess to crimes, with grand public hearings and a very detailed terms of reference. Be careful what you wish for.’
(2) ‘I am told it allows lawyers representing anybody or organisation accused by survivors to demand the status of “an interested party”. That means anything you tell them could go straight back to their lawyers before the inquiry even reports…. If it is non statutory there is no obligation whatever to tell them anything – and their lawyers have no right to find out.’
(3) ‘Finally I hope the panel can tell you whether they have obtained a freezing or preservation order on all documents listing evidence or allegations of child sexual abuse.’
Open justice principle
I have explained questions of open justice – which most journalists want (per European Convention 1950 Art 10 and Human Rights Act 1998 s 12) – at eg https://dbfamilylaw.wordpress.com/2014/10/31/why-family-law-gets-privacy-wrong-response-to-transparency-consultation/ in the context of court proceedings. Openness can be overridden at appropriate stages in the process of a court hearing – eg children or over-anxious witnesses. The court can go into camera (private). With sensitive documents (and the police and others may argue for this) there are ‘closed material procedures’. The question of the extent to which this applies to a statutory inquiry as it does in civil courts is a matter which may need to be decided upon as the inquiry goes along by the chair.
But talk of ‘grand public hearings’, of things going straight back to lawyers (but not to the press? – is that what is want?) has the feeling of being emotive. It is based on no legal authority – statute or common law – of which I am aware.
One of the first rules of statutory inquiry process is that the chair decides procedure (which suggests a judge in the chair might be no bad idea on that account alone). Inquiries Act 2005 s 17 says:
17Evidence and procedure
(1)Subject to any provision of this Act or of rules under section 41, the procedure and conduct of an inquiry are to be such as the chairman of the inquiry may direct.
(2)In particular, the chairman may take evidence on oath, and for that purpose may administer oaths.
(3)In making any decision as to the procedure or conduct of an inquiry, the chairman must act with fairness and with regard also to the need to avoid any unnecessary cost (whether to public funds or to witnesses or others).
I am afraid I do not know what Mr Scorer told DH was meant by s 17; but I see nothing of open courts and grand tribunal hearings. The two cases on inquiries I have cited in the JR application https://dbfamilylaw.wordpress.com/2014/10/23/csainquiry-grounds-of-judicial-review-application/ were both cases where the court agreed with a minister that the tribunals should be held (pre-Inquiries Act 2005, it must be said) in private.
The term ‘interested party’ is defined in Inquiries Act 2005, but my brief researches there does not tell me why it is there (ie I can’t find the section which deals with it; but I’ve probably looked no harder than Mr Scorer). The term is not even referred to in the Inquiry Rules 2006. ‘Core participants’ can have legal representatives (Inquiry Rules 2006 rr 5 – 8).
I find this whole passage so surreal, I should perhaps say no more till I can be told what the legal source of it is.
Freezing or possession orders
Under the heading ‘freezing or preservation orders’ DH switches back to a panel, and asks ‘whether [it can say if] they have obtained a freezing or preservation order on all documents listing evidence or allegations of child sexual abuse.’ I had genuinely thought about search and seizing powers for an inquiry (used to be called an Anton Piller order); but where DH and Mr Scorer leave me behind is that they have not explained to me how such orders can be made by an inquiry.
‘Freezing orders’ like ‘search orders’ are injunctions (Senior Courts Act 1981 s 37; granted under Civil Procedure Act 1997 s 7), which in the case of a search order can only be granted in the High Court, and of a freezing order mostly in the High Court (with one or two cases being dealt with in the family court or county court). That is these orders are only available from a court. Further an injunction cannot normally made against the Crown, which would exempt many of the documents an inquiry might want to freeze, or cause to be searched for.
I have tried to set out a law basis for most things I’ve said. I beg anyone else who asserts points of law to say where they’ve got it from. And this is especially where things are read by child sexual abuse survivors (a) who are very anxious to see this child sex abuse inquiry get off to a proper start (most that I am aware of would prefer a statutory inquiry chaired by a judge); and (b) who have enough worries without unreliable information (if DH’s is unreliable?) being put out.
I don’t mind mopping up the legal points afterwards; but I’d much prefer that journalists or anyone else ask me first. I promise I’ll do my best to state what law I know. I’ll say when I don’t know (and there are lots of bits in this area of law where things are unclear). And I won’t tell you things just because I think that’s what you want to hear.