Key takeaways
Keep records and search notes for transparency
A well-documented search process helps meet legal expectations and avoid penalties.
Write a clear, thoughtful statement
Use your own words and consider the audience.
Review your statement and request support early
Expert advice can make the process less stressful and more manageable.
Participating as a witness in a Public Inquiry can be worrisome and overwhelming.
Individuals can be involved whether they were employed in the NHS or the private sector. It may arise years following an event taking place. The individual may no longer be in the same role or be employed by the same organisation.
In this article, we have set out our advice on how you can best prepare.
Documentation
Witnesses may be asked to share relevant documents with the Inquiry. This can include:
Emails,
Whatsapp/text messages,
Notebooks and documents,
Training session slides and notes,
Meeting notes & minutes, or
Case reviews.
It will be expected that a reasonable search for documents will be carried out. You should make a note of your search as this may be requested by the Inquiry.
Do not presume that organisations or another person will have provided the documents already. Any relevant documents in your possession should be provided, even if the Inquiry hasn’t specifically requested that document.
The Terms of Reference on the Inquiry website will guide witnesses as to relevant topics, but this can cast a wide net. Be prepared that there is usually a large volume of documents that are shared.
Witness statement
An Inquiry statement request is called a ‘Rule 9 request’.
The Rule 9 request usually sets out:
Questions to answer,
Topics to be considered,
Documents that require review,
Any learning, and
Reflections.
The Rule 9 request is not exhaustive. A witness should include anything which they think is relevant.
Witness statements can be made public on the Inquiry’s website. It is important to bear in mind that those affected by the events will read the statement, as will the media, other witnesses, and the general public.
This can be a daunting task, so thought should be given to requesting legal support. If you were an employee of an organisation at the time in which the Inquiry is investigating, and that organisation is also involved, then it is sensible to check whether that organisation is offering ex-employees support through their own legal team.
Oral evidence
The Chair determines who will give oral evidence at a hearing. The hearing dates will be set in advance. Hearings are usually held in public.
It is possible to apply for special measures. Examples of this might include:
Regular breaks and short, simple questions for a witness who may have difficulty in processing information and responding to lengthy questions.
Access to a private room for a breast-feeding mother.
Short simple questions in plain English for a witness for whom English is not their first language. Translators can be present.
Anonymity screens for a witness with whom the Inquiry agrees should be kept anonymous.
Prior to the hearing, witnesses are not told what questions they will be asked. Instead, they will be given a list of documents and topics that are likely to be raised. Witnesses with a fresh memory of their statement often perform better in oral evidence, and so you should thoroughly review your statement before attending a hearing.
The barristers who ask questions on behalf of the Inquiry will do so in front of the Chair, other Core Participants, the media and members of the public at the hearing. Other Core Participants may ask questions too, but you will usually be made aware of that beforehand.
Powers of an inquiry
The Chair of an Inquiry has the power to:
Give notice for a person to provide evidence (e.g. oral evidence or written evidence in the form of a written statement).
Provide documents relating to the matter in question by the Inquiry.
Produce any other thing in their custody or under their control for inspection, examination or testing by or on behalf of the Inquiry panel (section 21 Inquiry Act 2005).
It is a criminal offence:
If a person fails without reasonable excuse to do anything that they are required to do by a notice under section 21 (set out above).
To intentionally supress, conceal, alter or destroy a document that you know or believe to be a relevant document.
A person who is guilty of this offence can be fined and imprisoned for up to 51 weeks.
It is important that reasonable searches for documents are completed in a timely manner. Key dates for submitting witness statements or attending a hearing should be diarised so that these are not accidentally missed without good reason.
Following oral evidence
The Chair will consider all the evidence and write a report setting out their findings and recommendations.
If an individual is to be criticised within the report, they must receive a warning letter setting out this criticism and be given the opportunity to provide a response before the report is published. This process will be covered by another article later in our Inquiry series.
Top 5 tips
Always keep a record of the searches you have carried out for documents. For example - what documents were you looking for and in what date range?
If you are an ex-employee of an organisation that is involved in the Inquiry, check if they are offering legal support. If not, consider getting your own.
Being familiar with your statement is the best way to prepare for giving oral evidence.
Your statement should include anything that is relevant and it should be in your own words. Be mindful of tone because it can be made public.
Key dates should be diarised to avoid falling foul of an Inquiry deadline, as this could have potentially criminal consequences.
If you are asked to assist with a Public Inquiry and would like support with any of the above, please get in touch with our specialist lawyers.