Inquiries and Reviews - Guidance on CPS Engagement
- Types of Inquiries and Review
- CPS Involvement with Inquiries and Reviews
- Criminal Offences under the Inquiries Act 2005
Inquiries can take a variety of forms and some require CPS involvement. This guidance sets out:
- Different types of inquiries/reviews
- CPS involvement with Statutory and Independent Inquiries
- Criminal offences under the Inquiries Act 2005
The Inquiries Act 2005 (the Act) is the main statutory basis for establishing an inquiry into matters of major current concern and lays down all key stages of the inquiry process. A Minister may cause an inquiry to be held under this Act in relation to a case where it appears that:
- Particular events have caused, or are capable of causing, public concern; or
- There is public concern that particular events may have occurred.
The inquiry may be undertaken by a chairman alone or together with other panel members, all of whom will be appointed by the Minister. An inquiry will not rule on, and has no power to determine, any person's civil or criminal liability, but can make findings of fact.
Non-statutory inquiries and reviews may be held in public or in private. Unlike statutory inquiries, they are not bound by procedural rules and neither do they have the power to compel the attendance of witnesses or the production of documents. They are therefore essentially reliant on the co-operation of those involved; however, the inquiry can, by virtue of section 15 of the Act be reconstituted as a statutory inquiry if there is a lack of co-operation or other compelling reason.
The Committee of Privy Counsellors is essentially a variation on the non-statutory form of inquiry. It allows for security information to be seen by the committee that the Government could not otherwise make available.
CPS reviews are instigated at the request of the Director of Public Prosecutions and, depending upon the nature of the review, can be carried out internally, or by an external individual or organisation. Examples of these reviews are the review carried out in relation to the case of R v Mouncher and Sir Richard Henriques' review into CPS decision-making and handling of all past matters relating to Greville Janner.
Any individual or organisation may establish an inquiry into a matter which they consider to be of urgent public concern, provided they are prepared to fund it and can persuade appropriate witnesses to attend.
Royal Commissions are investigatory or advisory committees set up by the Monarch on the recommendation of the Prime Minister. A Royal Commission will be established to gather information about the operation of existing laws or to investigate any social, educational, or other matter. The Commission has prescribed terms of reference and reports to the government on how any change might be achieved. The creation of the CPS came about following a Royal Commission on Criminal Procedure. Its report was published in 1981 and identified the need for independence of prosecution decisions.
Serious Case Reviews have been replaced with regimes in England & Wales for the review of cases involving the death or serious harm to a child and Safeguarding Adults Reviews for cases where a vulnerable adult has died.
In 2018, local areas completed their transition from Local Children's Safeguarding Boards (LSCBs) to the local safeguarding partner arrangements set out in Working together to safeguard children 2018 (Department for Education, 2018a).
When a child dies or is seriously harmed as a result of abuse or neglect, a review is conducted to identify ways that professionals and organisations can improve the way they work together to safeguard children and prevent similar incidents from occurring. Serious harm includes, but is not limited to serious and/or long-term impairment of a child’s mental or physical health or intellectual, emotional, social or behavioural development.
The reviews are known as child safeguarding practice reviews (CSPR) in England and child practice reviews in Wales.
The Care Act 2014 sets out a legal framework for how local authorities and other parts of the system should protect adults at risk of abuse or neglect. One of the duties of local authorities is to carry out Safeguarding Adults Reviews (SARs) when someone with care and support needs dies as a result of neglect or abuse and there is a concern that the local authority or its partners could have done more to protect them.
Any relevant person or organisation must provide information to Safeguarding Adults Boards as requested (section 45 Care Act 2014).
The purpose of SARs is described in the statutory guidance as to ‘promote effective learning and improvement action to prevent future deaths or serious harm occurring again’. The aim is that lessons can be learned from the case and for those lessons to be applied to future cases to prevent similar harm re-occurring.
The purpose of a SAR is not to hold any individual or organisation to account. Other processes exist for that purpose, including criminal proceedings.
SARs are expected to explore :
- What happened
- Any errors or problematic practice and/or what could have been done differently
- Why those errors or problematic practice occurred and/or why things weren’t done differently
- Which of those explanations are unique to this case and context, and what can be extrapolated for future cases so become findings.
- What remedial action needs to be taken in relation to the findings to help prevent similar harm in future cases
Further guidance about the Reviews and Participation of CPS can be found in the 'Children and Vulnerable Adult Case Reviews' Legal Guidance.
A Domestic Homicide Review (DHR) is a locally conducted multi-agency review of the circumstances in which the death of a person aged 16 or over has, or appears to have, resulted from violence, abuse or neglect by:
- a person to whom he or she was related, or with whom he or she was or had been in an intimate personal relationship; or,
- a member of the same household as himself or herself.
DHRs were introduced by section 9 of the Domestic Violence, Crime and Victims Act 2004 (DVCA 2004) and came into force on 13 April 2011. Their purpose is not to reinvestigate the death or apportion blame, but to:
- establish what lessons are to be learned from the domestic homicide, regarding the way in which local professionals and organisations work individually and together to safeguard victims;
- identify clearly what those lessons are, both within and between agencies, how they will be acted on, within what timescales, and what is expected to change as a result;
- apply these lessons to service responses including changes to policies and procedures as appropriate; and to,
- prevent domestic violence homicide and improve service responses for all domestic violence victims and their children, through improved intra and inter-agency working,
- contribute to a better understanding of the nature of domestic violence and abuse, and
- highlight good practice.
The DHR will usually draw upon information obtained from:
- interviewing family members;
- interviewing significant people who may have known the victim; and,
- obtaining information from participating agencies, either by way of an Individual Management Review (IMR), or by other means such as a chronology of events.
To support DHRs, the Home Office (HO) has developed a number of resources for practitioners. The Home Office published Statutory Multi-agency Guidance on 7 December 2016. These are now available on the Gov.uk website. CPS staff involved in a DHR should ensure they are aware of the HO guidance.
DHR Panel Membership
A number of agencies are cited as having statutory responsibility to establish or participate in a DHR, as set out in section 9 of the DVCA 2004. Those agencies include:
- the police;
- local authorities;
- local probation services and providers of probation services; and
- NHS Commissioning Board, NHS Trusts, and NHS Clinical Commissioning Groups.
Other agencies may have a role to play in the process, though their involvement is decided on a case by case basis. The Crown Prosecution Service (CPS) will not normally be part of the review panel, however, the CPS and agencies not named in legislation may be called upon to provide an Individual Management Review (IMR). It is important that any agency or employer that is approached to provide an IMR does so in order to provide the review panel with a comprehensive chronology of its involvement with the victim and others that may be the subject of the review. This will allow the review panel and chair to fully analyse events leading up to the homicide. Prosecutors should refer to the section on 'Factors to Consider' below for how to respond if invited to participate.
The local Community Safety Partnership (CSP) will be informed of a domestic homicide by the relevant police force. Any professional or agency can also refer a domestic homicide to the CSP in writing, if it is believed that there are important lessons for inter-agency working to be learned.
The overall responsibility for setting up a DHR rests with the Chair of the CSP. This decision has to be made within one month of the homicide coming to the Chair's attention. Once the Chair has decided that a DHR will take place, they will be responsible for setting up a Review Panel and appointing a Chair for the Panel.
The police play a key role on the Review Panel and will provide the CPS with a point of contact on these issues. It is therefore essential that effective communication between the CPS and the police is maintained throughout the process.
Simultaneous DHR and criminal proceedings
The Review Panel Chair (who reports to the CSP) should ask the police and CPS (if appropriate) for advice on whether the DHR should take account of any criminal investigation or criminal proceedings. They should also ask what potential impact a review may have upon such investigations or proceedings, including whether a review should not start until after the proceedings are completed or, if the DHR is already underway, whether it should be delayed until after the outcome of the criminal proceedings. Following any criminal proceedings, the DHR should be concluded without delay.
The DHR is independent from the criminal justice process and it is not possible to enforce demands that the timescales or methodology of the DHR is altered.
The subject matter of each DHR, the identity of the agencies contributing to it, and the disclosure issues to which it gives rise will differ considerably from case to case. The dates on which police enquiries and DHRs begin and end relative to each other will also vary in different cases. However, if there is concern that the DHR will jeopardise ongoing criminal investigations or proceedings, there should be discussion and agreement reached with the Review Panel Chair on the way forward.
Additionally, the Review Panel may wish to interview the victim's family and friends for the purposes of a DHR which has been instigated whilst a criminal investigation or criminal proceedings are ongoing. This is potentially of critical importance, as in many cases there will be great deal of pressure placed upon those responsible for a DHR to conclude a timely review. It is imperative that if a criminal investigation is on-going, or criminal proceedings have commenced, the Senior Investigating Officer informs the CPS and Review Panel if any interviewees are potential witnesses, and again there should be urgent discussion on the way forward including whether the DHR should be delayed exceptionally until the criminal proceedings have been completed.
Invitation to the CPS to participate in a DHR
There is no compulsion for the CPS to participate in a DHR. However, if a CPS Areas is approached to participate in a DHR, it is expected that the Chief Crown Prosecutor or Deputy Chief Crown Prosecutor should contact the Director of Legal Services Officer with details of the request that has been made.
An invitation to participate in a DHR will come from the Review Panel Chair addressed to the relevant CPS Area. The invitation may be to invite a senior member of the CPS Area:
- to be a member of the Review Panel; or
- to contribute to the review process, e.g. by the submission of an Individual Management Review (IMR), which is an account of an agency's involvement in the case.
The statutory guidance does not specify how contact should be made with the CPS. However, as a general rule, as the local DHR teams will be responsible for the running of the review, they will decide on how contact is to be made. Recipients of invitations are advised to verify that they are genuine, and should use secure methods for communicating where available.
Factors to consider
Requests to participate as a DHR panel member should be considered positively where there is a specific reason associated with the case which requires a response from the CPS (for example, where the homicide occurred whilst the defendant was on bail, or if there had been a previous decision to not charge a defendant). Alternatively, participation by the CPS may be required as an opportunity to explain our role and decision making process in a particular case. It is likely that panel members will be required to attend a number of meetings and such invitations should be assessed on a case by case basis.
Once informed of a DHR, the relevant CPS Area should ensure that steps are taken to secure any records relating to the current case and previous related cases. Where files have been destroyed due to passage of time or a decision not to charge, the police should be contacted for any records they may have.
The CPS should usually agree to participate in the DHR process, particularly when the CPS may have been misunderstood, leading to the possibility of erroneous conclusions. Where the CPS has had previous involvement in respect of the case in question, Areas should consider participating a DHR so that we can explain the CPS's role and the application of the Code for Crown Prosecutors in the decision making process. Accordingly, those attending a DHR should have full knowledge of the case, be able to explain the actions and clarify the role of the CPS and should have the appropriate seniority and experience.
When considering whether to participate consideration must be given to:
- the fact that a case may be sub judice;
- the danger of inadvertent disclosure of confidential information;
- possible prejudice to the trial process as a result of information given to or received by the DHR Panel, including evidence;
- the need to retain objective prosecutorial independence;
- how to deal with actual or perceived criticism of decisions by the CPS to prosecute (or not); and,
- how to deal with issues that extend beyond the circumstances of the particular case.
It should be remembered that it is not the role of the CPS to comment upon prevention and protection issues, unless the death under review has had criminal justice input prior to the offence, e.g. where a defendant was on bail when the homicide occurred.
There may be instances where the CPS is not invited to be part of the DHR process but are then referred to within the DHR by another agency. In such cases it would be appropriate for the CPS to make enquiries of the Panel and either offer to be involved, or request a copy of the report for accuracy before it is published and suggest amendments if appropriate to do so.
An IMR is an account of an agencies role in how they dealt with a particular case. The aim of an IMR is to:
- allow agencies to look openly and critically at individual and organisational practice and the context within which people were working to see whether the homicide indicates that changes could and should be made;
- identify how those changes will be brought about; and
- identify examples of good practice within agencies.
There is no compulsion for the CPS to provide an IMR. Where requests are made to provide an IMR, the Chief Crown Prosecutor or Deputy Chief Crown Prosecutor should inform the Director of Legal Services so that advice and support can be given in undertaking and managing the IMR.
Any IMR provided by the CPS and other relevant agencies will be incorporated in the final Overview Report.
As part of this process, it is therefore important that that those conducting IMRs on behalf of the CPS should not have been directly involved with the case and should not have been the immediate line manager of any staff involved in the IMR.
The Director of Legal Services will decide with the Chief Crown Prosecutor who should undertake the IMR. This is likely to be a senior member of staff from another CPS Area but it will depend on the circumstances of the case and the Area's involvement. The senior person conducting the IMR should have a clear understanding of the Terms of Reference including requirements such as ownership of the IMR, quality assurance processes and agreeing the final IMR report before the process of review begins.
The Chief Crown Prosecutor will be considered as having commissioned the IMR and will be responsible usually for quality assuring the IMR and ensuring it is delivered on time and agreed as appropriate.
Conducting a IMR
The senior person undertaking the IMR for the CPS should consider the following when compiling an IMR:
- an accurate chronology of involvement with the victim or defendant in any relevant case is given;
- all relevant documents including relevant policies and procedures at the time if appropriate should be examined;
- conduct interviews with the relevant staff involved in the case. A written record of such interviews should be made and should be shared with the relevant interviewee. The interviewee should be assured that the interview forms part of the SCR and that the SCR's purpose is not to apportion blame to an individual but to learn lessons for future practice;
- names of all staff involved in a case must be anonymised at all stages and not disclosed under any circumstances and Areas are advised to state job title of the staff only. Where the author is unable to interview a member of staff, the reason for this should be included;
- whether action was taken in respect of decisions made including actions not taken due to shortfall in resources should be taken into account;
- Areas should advise the Director of Legal Services of progress on the IMR and ensure the final draft is cleared accordingly; and
- As it is possible that the IMR will include recommendations about future CPS actions and/or commitments on behalf of the CPS, it is essential that any proposed actions and commitments made on behalf of the CPS must be cleared with the Director and relevant HQ Directorates.
The IMR report must be quality assured by a nominated senior person in the organisation who has commissioned the report and this will usually be the relevant Chief Crown Prosecutor. This senior manager will be responsible for ensuring that any recommendations from both the IMR and, where appropriate, the Overview Report are acted upon appropriately. If necessary, this will be in consultation and agreement with the relevant HQ Directorates.
The IMR should be signed and dated by the IMR author and counter-signed and dated by the nominated senior manager. Areas may wish to use the draft template of an IMR.
Information given by the CPS will be scrutinised and included in the Overview Report which will be published.
On completion of each IMR report, there should be a process of feedback and debriefing for the staff involved in the review, in advance of completion of the Overview Report. There should also be a follow-up feedback session with the relevant staff members once the Overview Report has been completed and prior to its publication. The management of these sessions are usually the responsibility of the relevant Chief Crown Prosecutor.
IMR recommendations for action contained in the report will be considered by the DHR Panel for inclusion in the Overview Report and Action Plan. Recommendations for change can be made, but the Review Panel should seek the agreement at senior level from each of the participating organisations including the CPS in order to check that they are satisfied that their information has been fully and fairly represented. CPS Areas should ensure there is effective communication with the Review Panel and ensure information submitted is accurate.
CPS Areas should note that the Chair may come to a conclusion (drawn from the information supplied in the IMR and other information) which we may not agree upon. Areas should try to bring this to the Chair's attention and see if there is a way forward to resolve the differences. If the issue is not resolved, Areas should request that it should record our view within the Overview Report.
Areas should note that that IMRs are not mandated as part of a DHR and different approaches could be taken. This allows flexibility for local areas to respond to suit their particular circumstances, such, as multi-agency discussions used rather than an analysis of separate written accounts from the different organisations involved.
Timescale for completion
The Review Panel is responsible for drawing up their terms of reference and appointing an Independent Chair. The Chair is responsible for managing and co-ordinating the review process and for producing the final Overview Report. The report will normally be produced six months from the date proceedings commenced, unless an alternative time scale has been agreed.
Publication of report
In relation to a DHR report, the CSP Panel will send the final Overview Report to the Home Office Quality Assurance Group, which assesses DHR reports and eventually publishes them on the Home Office website. The CPS is represented on this group and any DHR reports involving the CPS is noted.
Disclosure of Material
Whilst recognising the public interest in the proper conduct of the SCR, prosecutors should be aware about the timeliness of the collection of information by the Review Panel.
During the process of a DHR, material will be generated (e.g. minutes of meetings) and gathered (e.g. IMRs from contributing agencies and notes of interviews). Reasonable enquiries must be carried out by the police to establish what material exists, and whether it may be relevant to the criminal investigation/criminal prosecution. If material relevant to the criminal prosecution exists, the police must alert the CPS to its existence.
Relevant material should be put on to a disclosure schedule in the normal way and reviewed by the prosecutor to assess whether or not the material is disclosable with respect to the disclosure test.
This section of the guidance addresses what the CPS needs to do in respect of statutory inquiries and non-statutory inquiries. For reviews with a narrower scope, principles and processes can be considered and adopted appropriately on a case by case basis.
The aim of an inquiry is to help restore public confidence in systems or services by investigating the facts with a view to preventing recurrence. The remit of any inquiry's investigation must be set out in the terms of reference (ToR).
Terms of reference include:
- matters to which the inquiry relates;
- any particular matters to which the inquiry is to determine the facts;
- whether any recommendations are to be made;
- any other matters relating to the scope of the inquiry that the Minister or inquiry may specify.
Section 5 of The Inquiries Act 2005 requires the Minister to set out the ToR of a statutory inquiry prior to it being set up.
The ToR for a non-statutory inquiry may be set out by the Home Secretary, or agreed by the panel, sometimes in consultation with others.
Once an inquiry has been established, it will make contact with relevant individuals and organisations.
Initial contact from the inquiry should be made with the Inquiries Legal Team, however may also come to other staff. Any communication should be brought to the attention of the Inquiries Team without delay.
Depending upon the nature of the inquiry, the initial contact may ask the CPS to cooperate by providing material and potentially giving evidence in due course. CPS involvement in any inquiry will be overseen by the Directors of Legal Services (DLS). Where a request is made for the CPS to engage in a non-statutory inquiry or review, that decision will be taken by the DLS.
Under Rule 5 of the Inquiry Rules 2006 the inquiry Chair may designate a person or organisation, such as the CPS, as a core participant at any time during the course of the inquiry, provided that person or organisation consents to being so designated. The chairman must, in particular, consider whether the person or organisation:
- played, or may have played, a direct and significant role in relation to the matters to which the inquiry relates;
- has a significant interest in an important aspect of the matters to which the inquiry relates; or
- may be subject to explicit or significant criticism during the inquiry.
Where the CPS is designated as a core participant (in statutory inquiries) by invitation or application (Rule 5, Inquiries Rules 2006), or is put on notice that its co-operation will be required in an external inquiry; the following preparatory action will be required:
The Inquiry Rules 2006 (SI 2006 No. 1838) provide further procedural guidance in relation to the giving of written and oral evidence, legal representation, the sending of warning letters and delivery of reports. A copy of the Rules can be accessed here.
If the inquiry has not invited the CPS to be a core participant the CPS may apply to be so designated.
The DLS will designate a SPOC to lead the CPS participation/ work with the Inquiry. The Inquiry Legal Team will have overall responsibility for coordinating and handling the CPS response to the inquiry.
SPOCs will be identified from within the Records Management Unit (RMU), Departmental Security Unit (DSU), Communications and any relevant CPS Area or Central Casework Division. Each SPOC will be responsible for providing advice and guidance to the Lead for the inquiry in relation to matters relevant to their area of expertise and knowledge.
The Inquiry Legal Team will notify the Communications Director of the contact from the Inquiry.
The decision as to whether the CPS should apply to be a core participant and if so whether the CPS should be legally represented at the inquiry will depend upon how close the CPS is to the core issues of the inquiry. The final decision will require the agreement of the Director.
An early meeting with the Inquiry may be essential in addition to engaging with other relevant partners as appropriate (for example Ministry of Justice, the Home Office or the police).
The CPS Lead will:
- Meet with the RMU to establish points of contact and identify the material available within the RMU
- Identify single points of contact within each CPS Area/ Directorate
- Draft the terms of the Gateway to be published to all Areas to ensure the preservation of material
- Carefully consider what resources will be needed
- Distribute the Inquiry's requests for information to the relevant individuals
- Collate the responses to the requests for information
- Provide to the Inquiry the formal response on behalf of the CPS to their request for information
- Keep a clear record of the material disclosed to the Inquiry
- Provide updates on the Inquiry's activity to the DPP, Chief Executive, CPS Senior Managers and to the AGO
- Refer inquiry requests for undertakings to the DLS team.
Area Leads will:
- Receive the Inquiry's requests for information from the CPS Lead
- Facilitate the Area response to the request for information including obtaining the information requested
- Provide to the CPS Lead all of the material held by the Area which falls within the Inquiry's request
- Provide the Area's response within the deadline set by the CPS Lead
- Provide to the CPS Lead any explanation required where material is missing, has been destroyed or cannot be provided within the deadline set
- Indicate to the CPS Lead where there are any issues of sensitivity with the material provided
- Mark the material provided to the CPS Lead to indicate what it is proposed is subject to an application for redaction as well as any explanation for such a proposal
- Provide updates to the CPS Lead where new relevant information or material becomes available
- Provide a report detailing CPS retention policies, security arrangements and search facilities
- Confirm to the CPS Lead what material held by the Unit falls within the Inquiry's request and provide a list of the same
- Provide the Unit's response within the deadline set by the CPS Lead
- Provide to the CPS Lead any explanation required where material is missing, has been destroyed or cannot be provided within the deadline set
- Provide copies of the material falling within the Inquiry's request to the CPS Lead digitally unless otherwise stated
When considering material which is relevant to the Inquiry's request and terms of reference, all parties should note that by virtue of section 35(2) a person is guilty of an offence if during the course of an inquiry he does anything that is intended to have the effect of -
- distorting or otherwise altering any evidence, document or other thing that is given, produced or provided to the inquiry panel, or
- preventing any evidence, document or other thing from being given, produced or provided to the inquiry panel,
or anything that he knows or believes is likely to have that effect.
Effective and efficient communication with the inquiry is essential. Requests from a statutory inquiry will come in the form of a Rule 9 request. The letter will set out the details of broad and specific categories of material required as well as the deadline for providing that material. If it is not possible to meet the deadline, a full explanation must be provided to the inquiry solicitor or secretary, prior to the due date, providing an explanation and requesting an extension.
It is essential that immediate action is taken to secure all files (hard copy and electronic) and documents that may be relevant to the terms of reference of the inquiry. There will be early communication from the inquiry, sometimes before ToR have been agreed and often before a Rule 9 request is received. In such circumstances guidance will be provided by the inquiry to ensure all relevant files and documents are preserved. The Inquiry may provide guidance as to what is relevant for the purposes of its work. CPS personnel involved with the inquiry should be familiar with the legal guidance on storage of papers. The RMU SPOC will be able to assist in this regard.
Once material has been recovered, careful consideration should be given to how to supply CPS material to the inquiry. This will depend on whether the material is hard copy, digital or a mixture. It is important to discuss this with the inquiry secretariat to ensure compatibility and data security.
Consideration must be given as to the nature of the material. There may be issues of sensitivity and/ or confidentiality where legal professional privilege or public interest immunity applies. Again, this will need to be handled appropriately and in accordance with relevant policies.
Responding to Inquiries can raise a number of IT issues. Much evidential material is likely to be held digitally, so it is necessary to consider how to best secure information that the Inquiry may request from the CPS.
Information may be in CMS, in a folder on the network, and / or in email accounts, in which case it will be necessary to make sure that anyone with access to these knows not to delete anything, and that no automatic deletion takes place. If the area of potential interest is very limited, it may be prudent to collect the data into a secure folder on the network. In this situation, it is advisable to request a new shared folder, with access strictly limited to those people in the CPS who need to view the inquiry data (with the assistance of the IT Service Desk). Unnecessary duplication of data should be avoided. If a new data store is created, the Departmental Security Unit must be notified so that a record can be added to the Information Asset Register.
The inquiry may request digital data to be supplied in a particular manner. It is essential to ensure that such data is transferred in an appropriately secure way. When in transit, material marked "Official Sensitive" or higher should be encrypted. Policy and Guidance is available on the Security pages of the Infonet; note the Electronic Media Handling Policy on the IT Security page of the Infonet, and Serving Evidence on CD / DVD on the Security page. If asked to email data to an inquiry, check the list of secure email addresses held on the IT Security page of the Infonet.
If you have any queries regarding the holding and transfer of digital information in respect of Inquiries, please contact the Departmental Security Unit.
A list of all material provided to the inquiry should be logged to create a full audit trail.
Once the ToR have been established and recovery of relevant material is underway, a protocol or data sharing agreement will be created, to govern access to and disclosure of information to the inquiry. This may be agreed and signed by the participating organisation(s) and the inquiry, but may also be set up by the inquiry alone.
The protocol will also contain a data processing agreement. This sets out the terms and conditions on which documents may be provided to the inquiry, its servants or agents for processing by them, e.g. dealing with digitisation of the disclosed material by an external company. The processing agreement should provide assurances to organisations over any concerns they may have about compliance with the Data Protection Act 2018. Such an agreement will be signed by all relevant parties including the inquiry and the processing company.
It is normal for the inquiry to request un-redacted copies of all documents in the first instance. Where there are issues as to sensitivity and confidentiality an agreement must be secured in advance to ensure that material is received and held by the inquiry in accordance with CPS position as to non-disclosure.. In such circumstances the CPS must inform the inquiry of any concerns there are in relation to the publication of specific documents or parts thereof.
In respect of statutory inquiries, a redaction application should be made where necessary, requesting a restriction order on public access to specific material under section 19 of the Inquiries Act 2005. It may be necessary to prepare a redacted copy of the disclosed documents at the same time as full disclosure depending on the individual agreement reached with the inquiry. The inquiry will usually carry out a relevance sift on material received and return all of the selected material for redactions to be made by the providing organisation.
If there are concerns about providing a copy of a particular document because of its sensitivity, CPS legal guidance on Disclosure of Material to Third Parties should be considered bearing in mind at all times that the inquiry will be looking for full disclosure in the first instance. It should be noted that statutory inquiries have the power to compel production of specific material under section 21 of the Inquiries Act 2005.
By virtue of section 35(3) A person is guilty of an offence if during the course of an inquiry -
- 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.
The CPS may be asked to provide written witness evidence in the first instance in relation to defined issues pursuant to a Rule 9 request setting out the areas to be covered, the questions posed and the relevant documents to be addressed.
The Salmon Royal Commission investigated whether the inquisitorial procedures used by public inquiries were justified. It concluded that they were but that six principles should be adopted to offer procedural fairness.
These are now known as the Salmon Principles:
- Before any person becomes involved in an inquiry, the tribunal must be satisfied that there are circumstances which affect them and which the tribunal proposes to investigate.
- Before any person who is involved in an inquiry is called as a witness they should be informed of any allegations which are made against them and the substance of the evidence in support of them.
- They should be given an adequate opportunity of preparing their case and of being assisted by legal advisers. Their legal expenses should normally be met out of public funds.
- They should have the opportunity of being examined by their own solicitor or counsel and of stating their case in public at the inquiry.
- Any material witnesses they wish to call at the inquiry should, if reasonably practicable, be heard.
- They should have the opportunity of testing by cross-examination conducted by their own solicitor or counsel any evidence which may affect them.
The inquiry will identify those it considers are able to provide relevant information and the CPS Lead will need to make contact with any such CPS staff members who may be current or former employees.
Legal assistance is provided to the CPS and to CPS current and former employees by the Government Legal Department (GLD). It is not common for a witness to need legal advice before or during an interview with the review or inquiry team, however, where it is anticipated that individuals may be subject to criticism, legal assistance may be appropriate. Similarly, it may be appropriate for those who are asked to provide statements to an inquiry to receive legal assistance. This should be determined on a case by case basis.
The inquiry chairman has the power to require the production of evidence, the attendance of witnesses and the taking of evidence on oath by virtue of section 22 of The Inquiries Act 2005. Restrictions can be placed on public access to the inquiry where appropriate. Continued support and advice for any CPS witness in this position will be available.
Under section 35 of the Inquiries Act 2005 it is an offence for an individual to fail without reasonable excuse to do anything that he is required to do by notice under section 21 Inquiries Act 2005.
In its final report, an inquiry or review may wish to criticise particular witnesses. Where this is anticipated, the inquiry or review will provide extracts from the draft report to those subject to criticism to allow them to an opportunity to respond. This process is known as “Maxwellisation”. The inquiry or review will consider representations from witnesses if appropriate but the final decision on the content of the report rests with the inquiry.
The CPS provides support to its former and current employees who find themselves in this position. In the event that a CPS employee is subject to potential criticism, the CPS will instruct the GLD to provide legal support to help with any response. The costs of such legal support will be borne by the CPS.
The final publication of the report will include recommendations which may be relevant to the CPS. Any recommendations made that are relevant to the CPS must be considered and actioned if possible within a reasonable period of time.
The communication team will consider the need for and if necessary draft any press release in agreement with the Director.