We recently posted on the publication of the Terms of Reference and the Protocol for the Detainee Inquiry and set out some of the reaction to it. At the time, a number of lawyers representing those who claimed to have suffered mistreatment threatened to boycott the inquiry, claiming it would be a whitewash. As the BBC has reported, they have now been joined by a number of Human Rights organizations, and it seems that the clear intention is for the boycott to go ahead.
In a letter to the solicitor for the Inquiry team, ten NGOs (including Amnesty International, Justice, Reprieve and Liberty) reiterated their two main concerns: (1) that the decisions on what evidence was released would not be made independently of the Government and (2) that the participation of former and current detainees in the proceedings would be limited (this is presumably referring to their inability to directly examine witnesses). In their view, this means that the Inquiry will not be sufficiently transparent, and will not comply with the investigative obligation under Article 3 of the European Convention of Human Rights. They go on to say:
[I]n light of indications from the lawyers acting for former detainees that they will not be participating, we do not intend to submit any evidence or attend any further meetings with the Inquiry team.
The Inquiry swiftly responded with a statement on its website, in which it expressed its regret at the decision of detainees’ lawyers and the NGOs, and its hope that they would reconsider. It said:
The Inquiry’s parameters were laid down by the Prime Minister and made public on 6 July 2010. No one has challenged in court proceedings the legality of the Inquiry. The Inquiry will go ahead. It will examine the relevant documentation held by Government. It will hear the key Government witnesses. The Inquiry offers the detainees and anyone else with evidence relevant to its Terms of Reference the only opportunity for them to give evidence to an independent Inquiry.
The strength of the NGO reaction, particularly in regards to the issue of disclosure, might appear surprising when viewed against the background of what the Prime Minister said about the inevitable limitations on publicity when the Inquiry was announced:
Of course, some of its hearings will be in public. However, we must be realistic. Inquiries into our intelligence services are not like other inquiries. There is some information that must be kept secret – information about sources, capabilities and partnerships.
Let’s be frank, it is not possible to have a full public inquiry into something that is meant to be secret. So any intelligence material provided to the Inquiry panel will not be made public and nor will intelligence officers be asked to give evidence in public.
But that does not mean we cannot get to the bottom of what happened.
As for Article 3, in a letter from the Treasury Solicitor to Reprieve regarding the appointment of Sir Peter Gibson to Chair the Inquiry, it was stated (in paragraph 7) that the Inquiry had not been set up to be ECHR compliant. The position of the Government therefore appears to be that such compliance is not required. However, assuming for the moment that the Detainee Inquiry is required to be compliant with Article 3, there are arguments to be made that the current arrangements are sufficient.
The overriding requirement for an Article 3 Investigation is that the investigation is “effective”. It is clearly established in both domestic and ECHR case law that effectiveness generally requires that the investigating body is hierarchically and practically independent (see, for example, R (AM and Others) v Secretary of State for the Home Department  EWCA Civ 219 at paragraph 32) but this is a different issue to the independence of an entity tasked with deciding on disclosure. In responding to criticisms on this point, the Inquiry has repeatedly emphasized its own independence as an investigating body, and correctly pointed out that, although this is a non-statutory inquiry, even under the Inquiries Act 2005 (section 19), the Government has always had the power to place restrictions on disclosure in the public interest.
The issue of publicity more generally, and the issue of parties to an Inquiry being able to cross-examine witnesses, was addressed to some extent by the Court of Appeal in R (D) v Secretary of State for the Home Department  EWCA Civ 143, albeit in the context of an investigation into a death in custody under Article 2 of the ECHR.
On the right to cross-examination, the Court concluded that it was not necessary for the affected parties in that case to be able to directly cross-examine witnesses called to give evidence during the investigation, noting that
most inquisitorial systems involve the chairman of the relevant tribunal asking the questions and, although they may permit the representatives of the parties to play such a part as is appropriate, the parties do not have the same right to cross-examine as parties to English adversarial litigation.
It also pointed out that the Inquiries Act 2005 does not give parties represented at a statutory public inquiry rights to cross-examine witnesses – this is a matter the Inquiry Chairperson, who’s only obligation is to act fairly in the circumstances.
With regard to publicity, the Court noted that “[n]o inquiry is ever wholly in public”, and whilst it approved the order of the first instance judge that the evidence was heard in public hearings, it also endorsed his recognition that there might be “Convention compatible reasons to hear the evidence of a particular witness, or other parts of the hearing, in private”.
Although the prohibition on torture in Article 3 is unqualified, in the context of the positive investigative obligation there is a strong argument that such reasons would include the legitimate aims of protecting national security and public safety, which are referred to in many provisions of the ECHR. In addition, European Convention jurisprudence, when looking at investigative obligations under Article 2, has not been overly prescriptive about the level of publicity required for an effective investigation. In Edwards v United Kinghdom (2002) 35 EHRR 19, it said only that:
…there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case…
It is notable that, in the quote above, Strasbourg contemplated that effectiveness might be secured if either the investigation or the results of the investigation were sufficiently publicised. This could potentially found an argument that, provided a comprehensive final report is published, the non-disclosure of evidence is legally unproblematic.
Sufficient public scrutiny
At its core, the dispute boils down to a disagreement on whether the Inquiry Protocol allows for sufficient public scrutiny. Objectively determining this issue obviously has to take into account the context.
On the one hand, the Inquiry is conducting an investigation into Government complicity in torture – a matter of the utmost gravity militating in favour of extensive disclosure. On the other, much of the information at issue is inextricably linked with the United Kingdom’s security, and taking a flippant approach to publication might have genuine and serious implications for public safety. This risk was referred to in a policy document that was recently posted online by the Guardian – it is interesting that this was published as news of the boycott broke, particularly as the Guardian stated that the details of the policy were “believed to be too sensitive to be publicly released at the government inquiry into the UK’s role in torture and rendition”.
The Detainee Inquiry is intended to comprehensively address an issue that goes to the heart of the United Kingdom’s democratic, moral and political values. It is therefore right to be concerned that it is carried out properly. However, it remains to be determined whether or not the criticisms of the NGOs have a sound legal basis; if they do not, then in the absence of any successful legal challenge, those participating in the boycott are at risk of missing their chance to make an important contribution to getting to the bottom of what happened.
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