When Must You Provide a Witness Statement for a Public Inquiry?

by Evan Wright, Partner, Corporate, Professional & Regulatory at JMW Solicitors

Public inquiries investigate events that have raised public concern, often involving the conduct and decisions of businesses. Under the Inquiries Act 2005, statutory inquiries can require businesses to provide evidence, such as witness statements and internal documents. Failure to comply can result in legal penalties, including fines or imprisonment, and may affect the company’s reputation.

Business leaders need to be aware of the circumstances under which a company may be called to provide a witness statement. This includes understanding the inquiry’s scope, potential areas of interest, and the legal obligations involved. Mismanagement of these requirements can lead to financial liabilities, regulatory scrutiny, and reduced stakeholder confidence. An informed approach helps businesses to respond effectively to such requests, minimise disruption to operations and maintain compliance with legal standards.

Overview of Public Inquiries and Their Impact on Businesses

Public inquiries differ from criminal or civil proceedings as they focus on establishing facts rather than attributing liability. Businesses may become involved in these inquiries if their actions, decisions, or policies are relevant to the investigated matters.

The impact on businesses can be extensive. An inquiry may require a company to disclose internal documents, provide witness statements, or present oral evidence. This process can expose internal practices to public scrutiny and lead to reputational risks. Additionally, if the inquiry uncovers compliance failures or regulatory breaches, the business could face further legal or regulatory action.

Under the Inquiries Act 2005, the chair of a statutory inquiry has the authority to request evidence from individuals and organisations. This can include written witness statements, documents, and oral evidence. A formal notice under section 21 of the act can compel a business or its representatives to provide information relevant to the inquiry. The scope of this authority is limited to information that could be disclosed in civil proceedings, meaning that it excludes privileged documents or material protected by public interest immunity.

Failure to comply with such a notice can result in penalties, including fines or imprisonment. Businesses should also be aware that attempting to alter, conceal, or destroy relevant evidence is a separate offence under the Act. Companies need to handle any requests with care to ensure that they fulfil their legal obligations without compromising their position in the inquiry or other potential legal proceedings.

Assessing When Your Business Might Be Called to Provide a Witness Statement

Businesses may be required to provide a witness statement when their activities, decisions, or internal processes are relevant to the inquiry’s terms of reference. This usually occurs when a company’s actions have contributed to, or been affected by, the events under investigation. For example, companies involved in sectors such as construction, finance, or public services may be asked to account for compliance with safety regulations, financial management, or contractual obligations.

Receiving a notice under section 21 of the Inquiries Act 2005 obliges the business to provide a witness statement. This notice outlines the specific information the inquiry seeks, such as accounts of decision-making processes, communication records, or internal policies. Businesses should carefully review the scope of the inquiry and the notice they have received to determine the relevance of their involvement. If the requested information falls outside the inquiry’s scope, the company may contest the notice. Such claims must be substantiated with evidence showing why compliance is unreasonable or why the information requested is not relevant to the inquiry’s purpose.

Businesses should proactively assess their potential involvement in an inquiry by conducting an internal review. This involves identifying areas that could attract scrutiny, such as compliance with regulations, past incidents, or operational decisions related to the inquiry’s focus. By understanding these factors, companies can prepare for potential requests and provide accurate and comprehensive information if required.

Legal Obligations and Options for Businesses

When a business receives a formal notice from an inquiry, it is legally obligated to comply by providing the requested information. The notice may require the business to submit a written witness statement, produce relevant documents, or provide oral evidence. Failure to comply without reasonable excuse is considered a criminal offence, punishable by a fine and/or imprisonment of up to 51 weeks under the act. The business must also ensure that it does not alter, conceal, or destroy any evidence related to the inquiry, as these actions constitute separate offences under section 35 of the act.

There are specific grounds on which a business can contest a notice. If the business is not in possession of the requested documents, cannot reasonably access them, or if complying would be excessively burdensome due to costs or time constraints, it may submit a claim to the inquiry chair. The business may also argue that the requested information is not relevant to the inquiry’s terms of reference or that the chair has not acted fairly in issuing the notice. In such cases, the chair can amend or revoke the notice based on the validity of the claim, considering factors such as the public interest in the information being provided and the potential burden on the business.

If a business fears that complying with a notice could lead to self-incrimination or exposing sensitive information, it may apply for a restriction order under section 19 of the Inquiries Act 2005. This order can protect certain documents from public disclosure or grant anonymity to witnesses. Additionally, the business may seek legal advice on the possibility of negotiating the scope of the notice with the inquiry team to minimise disruption and protect its interests.

Strategies for Businesses to Protect Their Interests

When involved in a public inquiry, businesses must take proactive steps to protect their interests while complying with legal obligations. The first step is to appoint a legal team with experience in handling public inquiries. This team will guide the business through the process, ensuring that responses to inquiry requests are accurate, complete, and timely. A legal team can also assist in managing communications with the inquiry and preparing witnesses to give statements or oral evidence. This preparation is crucial, as inconsistent or poorly prepared testimony can lead to negative outcomes, such as the business being implicated in regulatory breaches or operational failures.

Another strategy is to implement a robust document management and preservation protocol. As soon as a business becomes aware of its potential involvement in an inquiry, it should take steps to preserve all relevant documents and communications. This includes emails, meeting minutes, internal reports, and any other records that might be pertinent to the inquiry’s focus. Destroying or altering documents after a notice has been issued is a criminal offence under section 35 of the Inquiries Act 2005 and can lead to severe penalties. By maintaining an organised and comprehensive record of relevant documents, businesses can respond efficiently to inquiry requests and reduce the risk of legal complications.

In addition, businesses should manage the flow of information to external stakeholders. Public inquiries often attract media attention, and any miscommunication or negative portrayal can harm the company’s reputation. Developing a clear, factual, and consistent narrative for media statements and internal communications is essential. Businesses should avoid speculation or defensive language and focus on demonstrating their commitment to cooperation and transparency. In some cases, it may be advisable to engage a public relations consultant to assist in managing the company’s image during the inquiry process.

Lastly, businesses should consider the long-term implications of the inquiry on their operations and reputation. If the inquiry identifies weaknesses in compliance or management practices, the company should address these issues promptly. Implementing changes in response to inquiry findings, such as revising internal policies or enhancing training programmes, can help to restore stakeholder confidence. By taking these steps, businesses can protect their interests throughout the inquiry process.

Can Witnesses See Evidence Given to the Inquiry by Others?

Whether witnesses can access evidence provided to an inquiry depends on their status within the inquiry. Individuals or organisations designated as “core participants” are usually granted access to documentary evidence collected by the inquiry, subject to potential restrictions imposed by the chair. This access enables them to understand the scope of the evidence and prepare their responses. Additionally, core participants receive a copy of the inquiry report before it is published, although only after it has been delivered to the relevant minister under the Inquiry Rules 2006, rule 17.

For those not designated as core participants, access to evidence is more limited. Such individuals or organisations can attend public hearings, review hearing transcripts, and read the statements of witnesses who have given oral evidence. However, they do not have access to the complete body of documentary evidence gathered by the inquiry. This limited access can restrict their ability to fully understand the inquiry’s findings or to respond to potential criticisms. Businesses involved in an inquiry, therefore, need to consider the benefits of seeking core participant status if they have a substantial role or interest in the proceedings.

If a witness believes that access to specific evidence is necessary for their participation, they can make a submission to the inquiry explaining their reasons. The chair has the discretion to grant additional access, particularly if it would assist in clarifying the witness’s testimony or contribute to the inquiry’s objectives. Businesses should work with their legal team to assess whether additional access is warranted and how to present a compelling case for it.

Can Witnesses’ Evidence Be Used in Civil and Criminal Proceedings Against Them?

An inquiry cannot determine civil or criminal liability. However, the findings of an inquiry can have indirect consequences for those involved. While a witness cannot be compelled to provide self-incriminatory evidence, and may contest a notice on those grounds, the line between incriminatory evidence and evidence that might assist a criminal investigation is often unclear. The chair and the witness may disagree on what constitutes self-incrimination, potentially complicating the process.

In certain inquiries, witnesses may be required to waive their privilege against self-incrimination. In such cases, the Attorney General may issue an undertaking to limit the use of the evidence in subsequent criminal proceedings. The scope of these undertakings varies depending on the wording, and they may only apply to specific stages of a criminal investigation. For example, an undertaking might prevent the use of evidence in a criminal trial but not in the initial investigation stages. Consequently, businesses and individuals should carefully review the terms of any undertaking with their legal team to understand its implications fully.

There are additional risks if an inquiry and civil or criminal proceedings run concurrently. The chair has the authority to suspend the inquiry to allow for the completion of other investigations or proceedings. However, this is not always done, as public interest often dictates that the inquiry proceeds without delay. In such situations, the chair may focus on issues unrelated to the criminal investigation during early phases or delay the publication of the inquiry’s report to minimise conflicts.

Witnesses facing concurrent proceedings should consider making submissions to the inquiry to request that the inquiry structure its proceedings to avoid prejudicing their position in ongoing legal matters. Failure to address these issues proactively can result in the unintended disclosure of evidence that may be used against the business or individual in other proceedings. Legal advice helps businesses to understand the potential overlap between inquiry findings and other legal risks.

Do Witnesses Need a Solicitor?

Legal representation is advisable for any business or individual involved in a public inquiry. A solicitor experienced in public inquiries can assist in numerous ways, starting with reviewing any notices received. They can advise on the scope of the inquiry, the relevance of the requested information, and any grounds for contesting a notice. A solicitor will also help in drafting witness statements that are clear, accurate, and comprehensive, while safeguarding the client’s legal position.

Solicitors also manage document preservation and production on a business’ behalf. They help the company to comply with the inquiry’s requests without inadvertently disclosing privileged or sensitive information. This is particularly important if the inquiry involves commercially sensitive matters or internal practices that could lead to reputational damage.

If a business or its representatives receive a warning letter indicating potential criticism in the inquiry’s report, a solicitor can assist in preparing a detailed response. This response allows the business to address any inaccuracies and present its side of the story before the report is finalised. Failing to respond effectively could result in adverse findings that might impact the business’s reputation or lead to regulatory scrutiny.

In addition, solicitors can advise on applying for restriction orders to protect the anonymity of witnesses or to prevent the disclosure of certain evidence to the public. They can also negotiate with the inquiry team to narrow the scope of document requests and minimise disruption to business operations.

A solicitor’s involvement ensures that the business’s legal rights are protected throughout the inquiry process. They help to manage risks associated with the inquiry, including potential civil or criminal liability and reputational harm, allowing the business to focus on its ongoing operations while responding appropriately to the inquiry’s demands