Under the Inquiry Rules 2006, a public inquiry such as the Undercover Policing Inquiry (UCPI) has to collect evidence in a specific way. These are usually referred to as ‘Rule 9 Requests’ or ‘Rule 10 Questions’, referring to the relevant sections in the legislation.
A ‘Rule 9 Request’ is where the Inquiry asks someone to provide information, whether a witness statement or some other evidence. If a statement is required, then the Inquiry sets out the issues it wants the statement to address.
In the UCPI, the process normally involves the Inquiry sending a copy of material it has identified as relevant to its Terms of Reference and the List of Issues to the witness.
This material, called a ‘bundle’, is usually covered by a restriction order so the witness (whether a core participant or not) is not allowed to discuss it with anyone other than their lawyers without prior permission from the Inquiry (which is sometimes granted and sometimes not).
With the help of their lawyer, the witness then provides a response, addressing the questions raised by the Inquiry. It does not prohibit the person providing other information or making other points as part of the response in their witness statement.
The requests are generally not made public, but depending on how a witness statement is drafted it may be clear what questions have been asked by the Inquiry.
Rule 9 Requests in the UCPI carry legal weight in England and Wales. These powers are explicitly provided for under Section 21 of the Inquiries Act 2005, which more broadly allows the Inquiry Chair to require someone to provide evidence or documents or to provide live testimony. However, the Undercover Policing Inquiry has stated it will not compel anyone who was a target of undercover policing.
Sections 35 and 36 of the Act give legal weight to these powers by making it an offence to not comply or for a person to destroy, conceal or alter evidence they know will be of relevance to an inquiry, or otherwise seek to hamper an inquiry’s work.
For the Inquiry to act, it needs to seek first the consent of the Director of Public Prosecutions or ask the Crown Prosecution Service to act on its behalf. The punishments can be a fine or up to a year in jail.
Wording of Rule 9
(1) The inquiry panel must send a written request for a written statement to any person from whom the inquiry panel proposes to take evidence.
(2) The inquiry panel must send a written request to any person that it wishes to produce any document or any other thing.
(3) The inquiry panel may make a written request for further evidence, being either a written statement or oral evidence.
(4) Any request for a written statement must include a description of the matters or issues to be covered in the statement.
Relevant sections from the Inquiries Act
21. Powers of chairman to require production of evidence, etc.
(1) The chairman of an inquiry may by notice require a person to attend at a time and place stated in the notice—
(a) to give evidence;
(b) to produce any documents in his custody or under his control that relate to a matter in question at the inquiry;
(c) to produce any other thing in his custody or under his control for inspection, examination or testing by or on behalf of the inquiry panel.
(2) The chairman may by notice require a person, within such period as appears to the inquiry panel to be reasonable—
(a) to provide evidence to the inquiry panel in the form of a written statement;
(b) to provide any documents in his custody or under his control that relate to a matter in question at the inquiry;
(c) to produce any other thing in his custody or under his control for inspection, examination or testing by or on behalf of the inquiry panel.
(3) A notice under subsection (1) or (2) must—
(a) explain the possible consequences of not complying with the notice;
(b) indicate what the recipient of the notice should do if he wishes to make a claim within subsection (4).
(4) A claim by a person that—
(a) he is unable to comply with a notice under this section, or
(b)it is not reasonable in all the circumstances to require him to comply with such a notice,
is to be determined by the chairman of the inquiry, who may revoke or vary the notice on that ground.
(5) In deciding whether to revoke or vary a notice on the ground mentioned in subsection (4)(b), the chairman must consider the public interest in the information in question being obtained by the inquiry, having regard to the likely importance of the information.
(6) For the purposes of this section a thing is under a person's control if it is in his possession or if he has a right to possession of it.
35. Offences
(1) A person is guilty of an offence if he fails without reasonable excuse to do anything that he is required to do by a notice under section 21.
(2) A person is guilty of an offence if during the course of an inquiry he does anything that is intended to have the effect of—
(a) distorting or otherwise altering any evidence, document or other thing that is given, produced or provided to the inquiry panel, or
(b) preventing any evidence, document or other thing from being given, produced or provided to the inquiry panel,
or anything that he knows or believes is likely to have that effect.
(3) A person is guilty of an offence if during the course of an inquiry—
(a) he intentionally suppresses or conceals a document that is, and that he knows or believes to be, a relevant document, or
(b) he intentionally alters or destroys any such document.
For the purposes of this subsection a document is a “relevant document” if it is likely that the inquiry panel would (if aware of its existence) wish to be provided with it.
(4) A person does not commit an offence under subsection (2) or (3) by doing anything that he is authorised or required to do—
(a) by the inquiry panel, or
(b) by virtue of section 22 or any privilege that applies.
(5) Proceedings in England and Wales or in Northern Ireland for an offence under subsection (1) may be instituted only by the chairman.
(6) Proceedings for an offence under subsection (2) or (3) may be instituted—
(a) in England and Wales, only by or with the consent of the Director of Public Prosecutions;
(b) in Northern Ireland, only by or with the consent of the Director of Public Prosecutions for Northern Ireland.
(7) A person who is guilty of an offence under this section is liable on summary conviction to a fine not exceeding level three on the standard scale or to imprisonment for a term not exceeding the relevant maximum, or to both.
(8) “The relevant maximum” is—
(a) in England and Wales, 51 weeks;
(b) in Scotland and Northern Ireland, six months.
Questions often focus less on the undercover and more about the group the non-police witness was active in, building a picture of their activities and politics. This is to assist the Inquiry Chair understand the milieu in which the undercover was working and the impact and responsiblity that the undercover would have had
1. What was the nature, extent, and duration of your involvement in [specific activist group]?
2. Can you describe the size, structure, organisational methods, and aims of [group name]?
3. What positions of responsibility did you hold and what specific roles did you play in [group name]?
4. How did [group name] interact with other activist groups or organizations?
5. Can you describe [group name]'s involvement in specific events, protests, or campaigns?
6. Did [group name] advocate, provoke, or approve of public disorder or breaking the law to advance its aims?
7. Did [group name] aim to overthrow parliamentary democracy? If so, by what means?
8. What security precautions did [group name] take, and was there concern about police infiltration?
9. How did [group name] handle sensitive data like membership lists?
10. What is your reaction to learning about undercover police officers in [group name]?
11. Can you describe any interactions you had with specific undercover officers?
12. In your opinion, were police actions and tactics against [group name] justified or proportionate?
13. Do you believe undercover officers breached privacy or abused trust within [group name]?
14. What leadership roles or influential positions did infiltrators hold in [group name]?
15. How do you reflect on the language and characterisations used in police reports about [group name]?
16. Do you believe infiltration interfered with legal processes or privileged information?
17. In your view, did infiltration undermine [group name]'s ability to operate effectively?
18. How effective do you believe [group name]'s actions and campaigns were overall?
19. Were you aware of any illegal activities planned or carried out by members of [group name]?
20. How did your personal political beliefs influence your activities within [group name]?
21. What do you believe was the overall impact of police infiltration on [group name] and on you personally?
22. Can you provide your perspective on the justification for police deployments and tactics used against activist groups like [group name]?
The questions also explore the following more general points:
1. Assessing threat levels: Determining if groups posed genuine threats to public order or national security.
2. Justifying police actions: Gathering information that could retrospectively justify or criticise undercover policing tactics.
3. Evaluating infiltration impact: Understanding how undercover operations affected activist groups and individuals.
4. Examining privacy breaches: Investigating potential abuses of trust or invasions of privacy by undercover officers.
5. Analyzing group dynamics: Understanding the structure, aims, and methods of activist organizations.
6. Uncovering illegal activities: Identifying any unlawful actions planned or carried out by group members.
7. Exploring political motivations: Understanding the ideological underpinnings of activist groups and individuals.
8. Assessing police intelligence: Evaluating the accuracy and usefulness of information gathered by undercover officers.
9. Examining procedural issues: Investigating how sensitive information was handled by both police and activist groups.
10. Gauging long-term effects: Understanding the broader impact of undercover policing on activism and civil liberties.
In a public inquiry, Counsel to the Inquiry usually asks all the questions put to witnesses, nominally using the List of Issues to guide them. There is no automatic right of cross-examination of witnesses by the legal representatives of the core participants. This is under Rule 10 of the Inquiry Rules.
In 2020, the Undercover Policing Inquiry (UCPI) produced a note setting out how it planned to allow Rule 10 questions to be implemented.
There are two distinct phases.
The first is when the core participant legal representatives submit questions to Counsel to the Inquiry (CTI) in advance. This is the main method of input available to core participants in the Inquiry.
This is done in a pro-forma document, the Rule 10 Questionnaire, which also asks which matters the questions go to, in turn based on the List of Issues. It is CTI’s responsibility to look at the questions and determine if and how to ask the questions (if they had not already planned to ask the question themselves). In theory CTI should also confirm whether they will ask the requested questions.
The second phase takes place after a witness has given the main body of their testimony. Legal representatives can send CTI a list of follow up questions to ask, but this is not automatic, and it remains at CTI’s discretion whether or not the questions will be asked.
It is possible for a barrister for a core participant to ask permission to question, but this has to be granted by the Inquiry Chair. To date, the UCPI Chair, Sir John Mitting, has granted only very limited capacity to do this, usually at the end of an oral hearing and usually only around where there is a disagreement of fact – often with regard to a sexual relationship. Where the Chair has invited lawyers to question a witness, it has almost always been of their own client.
In the UCPI, this has been a deeply unsatisfactory process for the non-state core participants, and has raised a variety of issues. The main complaints are:
- that CTI misunderstands the intention behind the question and asks it in the wrong way, or fails to do the necessary follow up to an elicited answer; or
- that when new and important material emerges during a live hearing, it is near-impossible to get questions to the CTI for them to do any follow up.
See more under Cross-Examination.
During Tranche 1 Phase 1, the issue of Rule 10 questions and how they were to be dealt with was considered at a separate half-day hearing following a dispute over a line of questioning being put by one of the non-state core participant’s barristers. The Inquiry seemed to use this as an excuse to limit the direct questioning of the state witnesses by all non-state core participants.
This led to considerable disquiet and the issue was further addressed at the ‘Directions Hearing’ of January 2021. The current process is set out in the Direction issued by the Inquiry Chair on 1 March 2022 for the Tranche 1 Phase 3 hearings. The Inquiry has also indicated that it will revisit the Rule 10 process for later hearings.
Wording of Rule 10
(1) Subject to paragraphs (2) to (5), where a witness is giving oral evidence at an inquiry hearing, only counsel to the inquiry (or, if counsel has not been appointed, the solicitor to the inquiry) and the inquiry panel may ask questions of that witness.
(2) Where a witness, whether a core participant or otherwise, has been questioned orally in the course of an inquiry hearing pursuant to paragraph (1), the chairman may direct that the recognised legal representative of that witness may ask the witness questions.
(3) Where—
(a) a witness other than a core participant has been questioned orally in the course of an inquiry hearing by counsel to the inquiry, or by the inquiry panel; and
(b) that witness’s evidence directly relates to the evidence of another witness,
the recognised legal representative of the witness to whom the evidence relates may apply to the chairman for permission to question the witness who has given oral evidence.
(4) The recognised legal representative of a core participant may apply to the chairman for permission to ask questions of a witness giving oral evidence.
(5) When making an application under paragraphs (3) or (4), the recognised legal representative must state—
(a) the issues in respect of which a witness is to be questioned; and
(b) whether the questioning will raise new issues or, if not, why the questioning should be permitted.