Issuing notices to witnesses overseas to compel attendance: a sea change for inquiries and inquests
22 June 2026
R (on the application of UCPI Designated Lawyer Officers Core Participant Group) v Sir John Mitting (sitting as Chairman of the Undercover Policing Inquiry and others [2026] EWHC 1394 (Admin)
This decision, arising from the long running Under Cover Policing Inquiry (“UCPI”), was the first time a Court has heard full argument about the extra-territoriality of a notice issued under section 21 Inquiries Act 2005 (the “IA”). Simply put, the Court decided that an Inquiry Chair does have the power to issue a s21 notice to a person residing overseas. This represents a departure from the approach of previous public inquiries.
The facts
The main issue before the Court (Singh LJ and Jay J) was whether the Defendant, UCPI’s Chair, had the power under s21 IA to issue a notice on a former police officer, compelling him to attend in London to give oral evidence to the Inquiry.
The Claimant represented the retired officer, anonymised as HN86. HN86 had been a senior officer in the Special Demonstration Squad (“SDS”), an undercover police unit previously operating in the Metropolitan Police Service. He had retired in the 1990s and had lived overseas for about 25 years, where he also had permanent residency. He retained his British nationality but only returned occasionally to the UK.
The Defendant’s view was that HN86’s evidence was particularly important to the UCPI. HN86 had previously voluntarily responded to a request for evidence under r9 of the Inquiry Rules 2006 and provided a statement to the UCPI. The Inquiry wanted him to give oral evidence. Ultimately, HN86, through the Claimant, refused to give oral evidence either in person or remotely (including from the British embassy in his country of residence).
The UCPI then issued a s21 notice to HN86 and the Claimant sought a judicial review. Ground 1 was that the UCPI had no power to issue the s21 notice, because HN86 resided overseas – the argument was that the s21 notice was unlawful. Ground 2, which was subordinate, was that it had been procedurally unfair to issue the s21 notice.
The relevant legislation
Pursuant to s1 IA, a Minister may cause an Inquiry to be held where it appears that:
“(a) particular events have caused, or are capable of causing, public concern; or
(b) there is a public concern that particular events may have concerned.”
It was common ground between the parties that the “particular events” to be inquired into could have taken place anywhere in the world (but some connection with the UK would be needed before public concern could be generated).
s21 IA provides that the Chair may, by notice, require a person to attend at a time and place stated in the notice to give evidence, or to produce documents or any other thing in his custody or under his control. Here, the s21 notice had required HN86 to attend London to give evidence. Under s21(4) IA, the recipient of a s21 notice may claim that he is unable to comply with the notice or it is not reasonable to require compliance. That is then determined by the Chair.
s35 IA creates a criminal offence for failing, without reasonable excuse, to comply with a s21 notice.
Court’s discussion and analysis
The Court looked at four other public inquiries in which the territorial reach of s21 notices had fallen for consideration; namely the Al Sweady inquiry; the Litvinenko inquiry; the Grenfell Tower inquiry; and the Manchester Arena Attack inquiry. Essentially none of these inquiries appeared to consider that s21 notices could be issued to those living abroad. In the Grenfell Tower inquiry, the phase two report had stated in relation to four foreign witnesses: “having taken legal advice, the chairman was satisfied that no legal mechanism existed to compel their attendance in this country”. In the Manchester Arena Attack inquiry, the Chair’s view was that there was no power to serve a s21 notice on an individual or organisation that was not in the UK. He recommended reform of the legislation to address the lack of extra-territoriality.
The Claimant had also drawn the Court’s attention to the language of Schedule 5, paragraph 1 of the Coroners and Justice Act 2009, which is very similar to s21 IA. HM Chief Coroner’s “Guidance for Coroners on the Bench” states that there is no power to compel evidence from a person who is outside the jurisdiction of England and Wales. Bean LJ expressed the same view R (Shafi) v HMSC East London [2015] EWHC 2106 (Admin) at §26 (“there is only so much that a coroner can do to obtain evidence from a foreign state….Nor can the coroner compel the disclosure of documentation from the overseas country or compel witnesses from the country to give evidence…”).
The starting point was that there was a presumption in English law that a statute did not apply extra-territorially, unless the contrary intention appeared. But, the Court’s approach was to ask if that presumption arose in the first place on the facts.
In addressing this question, the Court set up various hypotheticals as to the nature and effect of a s21 notice, read with the criminal provisions of s35 IA.
Scenario 1: the witness is resident in England or Wales and fails to turn up at the time required by the s21 notice. That person is guilty of a breach of the notice and, subject to any defences that may be available, is liable to criminal sanctions under s35 IA.
Scenario 2: the facts were the same as in scenario 1 but the witness is resident in Scotland or Northern Ireland. The conclusion would be the same, since the extent of the IA is the whole of the UK (see s52 IA).
Scenario 3: the facts were the same as in scenario 1 but, on the relevant day of the inquiry, the witness is outside UK territory, e.g. on holiday or business. In the Court’s view, this could not affect the above analysis and the witness would have breached the s21 notice.
Scenario 4: the facts were the same as in scenario 1 save that, on the date when the s21 notice is issued, the witness is outside the territory of the UK. Again, in the Court’s view, this could not affect the legal analysis – the s21 notice was validly issued and Parliament could not have intended that its validity should turn on whether the witness happened to be in the UK or not on the date of issue. For the Court, what was critical was that the witness was required to be in the UK on a certain date. Only at that moment could the witness breach the s21 notice and the potential criminal consequences in s35 IA arise.
For the Court, these scenarios highlighted the nub of the problem. It stated that the purpose of a s21 notice is to require a witness to attend on a certain date. The failure to attend is an offence of omission but up until that moment, it is possible for the witness to comply and avoid criminal liability. The fact that the witness happens to reside in another country did not, in the Court’s view, alter the nature of that offence of omission. Whether the witness was abroad on holiday, business or because he lived abroad, did not change the fact that the witness was outside of the UK at the relevant time when he should be in London at the UCPI. On the Court’s analysis this was not an exercise in extra-territorial jurisdiction by the UK Parliament. A substantial part of the offence would take place in the UK: “where there should be a witness, there is an empty chair” (§87).
The Court emphasised that it was dealing with the state’s “prescriptive” jurisdiction and not the “enforcement” jurisdiction. The “prescriptive” jurisdiction is the power to make laws, decisions or rules; and the “enforcement” jurisdiction is the power to take executive or judicial action as a consequence of the laws, decisions or rules. As to the “prescriptive” jurisdiction, the Court considered a line of authorities relating to the “substantial measure” test in domestic law and asked, in relation to s35 IA, whether “a substantial measure of the activities said to constitute the crime” takes place in the U.K. (see R v Sheppard [2010] EWCA Crim 65). In the Court’s view, it did.
As to the “enforcement” jurisdiction, the Court recognised these may be questions about what practical steps an inquiry could take to secure compliance with a s21 notice if the witness is abroad. A s35 IA offence is not an extraditable one. While practical problems of enforcement were relevant to the question of statutory interpretation, they could not dispose of the issue and were conceptually distinct from the question of the “prescriptive” jurisdiction.
For the Court, the correct analysis was that the issue in the case was not, in truth, one about extra-territorial jurisdiction, but was an example of the “substantial measure” doctrine and the substantial measure of the activities made criminal by s35 would take place in the UK, if a witness did not comply with a s21 notice.
The Court considered a number of other factors supported its decision:
- In cases involving s21 notices, it can be said that the IA itself ensures there is sufficient connection with the UK to ground subject matter jurisdiction (i.e. the decision to establish an inquiry will be enough).
- There is a very strong public interest in ensuring that public inquiries have access to information, particular as they often investigate actions taken by state or public institutions (i.e. the argument made on behalf of Baroness Lawrence, as Third Interested Party, that inquiries are only set up when things go wrong and there is a pressing need to find answers).
- The events that can lead to an inquiry being established under s1 IA are not stated to be only events in the UK (see e.g. events arising from the actions of the armed forces). The effectiveness of an inquiry into such events should not be hampered by the happenstance of witnesses living abroad and being unwilling to attend to give evidence.
- Equally, the Court gave an example of a public inquiry investigating matters of concern arising in the NHS. A number of important witnesses might be foreign nationals, perhaps retired doctors or nurses. An inquiry should be able to issue a s21 notice in those circumstances.
Ground 1 was dismissed.
Ground 2 was also dismissed on the basis that there had been no unfairness in how and when the s21 notice had been issued to HN86. In addition, even if there had been prior / different notice that a s21 notice was intended, the outcome would not have been any different.
Comment
This is a decision of note, for public inquiries but also in coronial proceedings. Those advising in public inquiries may be reflecting on whether more could, in fact, have been done in the past to try to secure the attendance of witnesses overseas. In addition, the issue of whether a Coroner can issue a Schedule 5 notice to a witness overseas arises not infrequently in inquest proceedings and Coroners will need to understand the importance of this decision. Or course, issuing a s21 notice may or may not actually lead to attendance to give evidence, given the ‘lack of teeth’ for enforcement.
Leanne Woods is a barrister at 1 Crown Office Row.
Oliver Sanders KC acted for the Claimant and Peter Skelton KC acted for the First Interested Party, the Metropolitan Police Service. They were not involved in the writing of this article.
