To answer or not to answer, that is the question

Using evidence given at the UK COVID-19 Inquiry in later criminal or other proceedings

The Chair of the UK COVID-19 Inquiry, the Rt Hon Baroness Heather Hallett DBE., has the power to legally compel witnesses to attend the Inquiry and give evidence under oath¹, but if witnesses compelled by this power are concerned that the evidence they give may subsequently be used against them in later criminal or disciplinary proceedings, what impact might this have on the Inquiry’s ability to get to the truth about the UK's preparations for and response to the pandemic?

The problem

The deep and widespread impact of the pandemic on the economic and social fabric of the UK means that the UK COVID-19 Inquiry needs to be comprehensive, transparent and maintain the trust of the families of the bereaved, survivors and the public as it progresses. Only then can the Inquiry’s findings be considered credible, and its recommendations viewed as likely, if implemented, to have a positive impact on the handling of future pandemics. Many will therefore welcome the setting up of the Inquiry on a statutory basis, because this gives the Chair the power to compel witnesses to give evidence. While most witnesses willingly give evidence at statutory public inquiries after receiving a request for a written witness statement² which may be followed by a request to attend the Inquiry to provide oral evidence, the Chair can demand attendance if the witness refuses³. This power to compel witnesses to attend is significant because it is a criminal offence to fail to comply with such a requirement without reasonable excuse⁴. However, trust in the Inquiry can only be maintained if witnesses are seen to be giving full and honest answers to the questions they are asked. The possibility that evidence may be used in later proceedings may place witnesses who genuinely want their experiences to assist the Inquiry in a dilemma. They may feel constrained in providing candid evidence to the Inquiry or may refuse to attend at all.

Potential witnesses involved in the health and social care sectors, for example, while eager to provide evidence about their experiences so that lessons can be learned which might improve the outcome of future pandemics, may be equally worried about the possible medico- legal repercussions of their evidence. These concerns may not just relate to themselves as individual clinicians but also relate to their teams. The evidence which might give witnesses cause for concern may range from details of the care of patients with the virus to the effect on patients suffering from non-COVID related conditions arising, for example, from delays in diagnosis and treatment. 

The concern that some witnesses may have that their evidence could be used as the basis for a decision to bring criminal proceedings against them and/or their colleagues and as part of the criminal case itself is understandable given the sanctions that can be imposed following successful criminal proceedings. These include fines and, in the case of individuals, imprisonment, and there is also the reputational damage that can follow such proceedings. These witnesses are likely to invoke the legal privilege against self-incrimination (“PSI”) to protect themselves from being compelled to attend the Inquiry to give evidence and/or answer particular questions⁵. These (lawful) refusals could potentially frustrate one of the main objectives of the Inquiry – to establish the truth of what occurred - and thereby undermine the public’s trust in the Inquiry.

The solution?

The tension between an Inquiry’s need for full and open evidence, and the concerns which may be raised by witnesses regarding the future use of their evidence resulting in their seeking PSI, has arisen in numerous Inquiries over the years. In appropriate cases, the Inquiry Chair has requested that the Attorney General (“AG”) of the time provide an undertaking regarding the future use of evidence given to the Inquiry. In several high-profile Inquiries including Baha Mousa, Stephen Lawrence, Bloody Sunday, Undercover Policing and Grenfell, the AG has provided undertakings that the evidence given by a witness or certain categories of witnesses would not be used in any future prosecution against them.

AG’s undertakings can apply to witnesses giving evidence in their personal capacity and those who give evidence on behalf of organisations, businesses, and companies. They are given in an AG’s capacity as guardian of the public interest, independent of Government. This is a capacity which may take on particular importance as the UK COVID-19 Inquiry may hear evidence critical of the Government’s preparations for and handling of the pandemic. If an undertaking is given, a witness which it covers cannot refuse to answer questions on the basis that doing so would risk self-incrimination, as the undertaking means that their evidence cannot be used as part of a criminal case against them. 
The undertakings given to the Grenfell Inquiry, and the background against which they were given, are informative and may give an indication as to what is likely to happen in the UK COVID -19 Inquiry. The current AG, the Rt Hon Suella Braverman QC MP, gave an undertaking which meant that no oral evidence provided to the Inquiry by individuals during particular modules would be used either for the purpose of deciding whether to bring criminal proceedings against that individual or used against that individual in such proceedings. This was later extended to cover corporations as well as individual witnesses.

The Grenfell undertakings:

• were requested by the Grenfell Inquiry Chair, Sir Martin Moore-Bick, to allow individual witnesses to provide a truthful account without fear for the future, which would assist him to make recommendations based on the fullest body of evidence possible;
• related to specific parts of the Inquiry which covered evidence regarding the refurbishment of Grenfell Tower, including the external cladding, and evidence regarding internal fire safety measures and management of the building;
• were granted by the AG who received representations from, and consulted with, various parties including the families of the bereaved and survivors, the Crown Prosecution Service and the Metropolitan Police Service;
• were given after the AG concluded that undertakings were needed to enable the Inquiry to continue to hear vital evidence about the circumstances and causes of the fire and that, without, them some witnesses were likely to refuse to answer questions; the AG also concluded that the undertaking would not jeopardise the concurrent police investigation or the prospects of future criminal prosecutions; and
• were unusual as i) the issue of PSI and the need for undertakings were not dealt with at the start of the Inquiry but arose some way into the Inquiry and ii) they are quite narrow in their application as they apply to only specific parts of the evidence given in certain parts of the Inquiry.

While such undertakings result in the Inquiry hearing the evidence it requires, their use can be controversial, particularly if they are not considered in the initial stages of an Inquiry. The families of the bereaved, for example, may feel that these undertakings will make it difficult for individuals and/ or organisations who acted culpably to be held to account in the criminal courts as their evidence will be excluded from the criminal process. Importantly, however, AG undertakings do not provide those covered by an undertaking with immunity from prosecution, because evidence arising from alternative sources, for example, other witnesses and/or documents, can be used as the basis of a decision to prosecute and as evidence in the prosecution itself.

The concerns of the families of the bereaved may also be alleviated to some extent by assurances from the AG and the police and prosecuting authorities that the undertaking will not adversely impact criminal investigations and prosecutions. Further, the undertakings can be worded to cover only oral evidence so that written evidence and other documents considered by the Inquiry can be used in future prosecutions. Undertakings may also be restricted, if appropriate, so they only apply to witnesses giving evidence in their personal capacity, not those appearing on behalf of corporate bodies and can be worded to cover only certain witnesses and specific pieces of evidence.

When considering any request from the Inquiry Chair for an undertaking, the AG will take into account of:

• the importance of the evidence to the Inquiry’s objectives to examine the preparations for and response to the pandemic and to learn lessons;
• how likely it is that witnesses will refuse to give vital evidence without an undertaking;
• representations from the families of the bereaved, those who have suffered hardship as a result of the pandemic, the police and prosecuting authorities; and
• the impact of the undertaking on police investigations and future prosecutions.

Potential witnesses may also feel inhibited from giving candid, honest evidence if they are concerned that, for example, they may have breached their employer’s policies and procedures or not acted strictly in accordance with their training, which could result in their employer’s bringing disciplinary proceedings against them based on their evidence. In such situations, employers could be asked to provide undertakings not to use evidence given by their employees as the basis for a decision to bring disciplinary proceedings or as part of those proceedings themselves although, like AG undertakings, such requests may be controversial in the circumstances of the UK COVID-19 Inquiry. Given this, employers who receive a request for undertakings should seek legal advice.

It may be difficult for such undertakings to be provided in Inquiries which hear evidence from many sectors, which will be the case in the UK COVID-19 Inquiry, rather than in an Inquiry in which evidence is provided from witnesses from a small number of employers. Further, some employers’ legal advisors are likely to be cautious about their clients giving such undertakings, particularly if an individual employee’s evidence might impact, for example, on other members of their team. In our view, responsible employers are unlikely to bring disciplinary proceedings against such team members when the witness faces no action because of an undertaking.

We think it more likely that employers, who would presumably wish to cooperate with the Inquiry by supporting their employees in answering questions fully, given the reputational issues that might arise if they did not, would consider providing limited assurances, rather than formal undertakings, that evidence employees give at an Inquiry that might otherwise result in disciplinary proceedings would not be used in such proceedings.

Conclusion

The tension between the need for openness and honesty in the UK COVID-19 Inquiry in order to learn lessons for the future and the potential for the apportionment of blame for the consequences of the pandemic, resulting in proceedings following an Inquiry, is clear. It is reflected in the competing interests that might arise between the public, who will want to be sure that the learning experience will not be compromised by the fear of future proceedings, and groups such as bereaved families and others impacted by hardship who may be concerned that the likelihood of criminal proceedings will be reduced should the AG provide undertakings.

The issue for the Inquiry will be whether to accept the possibility that witnesses will refuse to give evidence, or whether to seek to obtain answers on the basis that their evidence will not be used against them in a future prosecution. Given the impact of the pandemic in terms of the number of fatalities, the serious effects of long Covid on many survivors and the adverse UK wide social and economic consequences, it is likely that the need to obtain as full a factual picture as possible and learn lessons for an improved response to future pandemics will outweigh concerns regarding prosecutions following the Inquiry. If the provision of vital evidence might be compromised by witnesses raising PSI, the Chair will almost certainly be granted, as in many previous high-profile Inquiries, an undertaking from the AG that the answers of such witnesses will not be used in future criminal proceedings particularly if the AG is satisfied that the undertaking will not jeopardise any criminal investigations or future proceedings.

¹Section 21 of the Inquiries Act 2005 gives the Inquiry Chair power to require documents, witness statements to be provided to the Inquiry and attendance to give evidence.

²Rule 9 of the Inquiries Rules 2006

³Under section 36 of the Inquiries Act 2005, the Inquiry Chair can apply to the High Court for a witness summons to enforce a notice issued under section 21 of the Act which can result in the witness being arrested if they continue to refuse to attend the Inquiry.

⁴Section 35 of the Inquiries Act 2005

⁵Under common law and Section 14(1) of the Civil Evidence Act 1968, a party may claim privilege against self-incrimination if compelled to disclose information that would tend to expose them to criminal proceedings for an offence or the recovery of a penalty. The risk of incrimination must be real and appreciable, not remote or insubstantial. Section 22 of the Inquiries Act 2005 states that a person may not be required to give, produce or provide any evidence or document under section 21 if he could not be required to do so if the proceedings of the inquiry were civil proceedings in a UK court. The right not to incriminate oneself is also implied in Article 6 of the ECHR which provides the right to a fair trial.