An 'undertaking' in a public inquiry, is a promise by a government or other body to do something, or to not do something, in order to help the inquiry meet its terms of reference. In the Undercover Policing Inquiry this has revolved around concerns that witnesses providing evidence open themselves up to a variety of problems, potentially including criminal investigation.
- See also Misconduct and Disciplinary Hearings for issues affecting specifically police officers.
Attorney General’s Undertaking
The Undercover Policing Inquiry has sought, and been granted an undertaking from the Attorney General which protects witnesses providing evidence to the Inquiry from incriminating themselves.
This means that they can give evidence without fear of being prosecuted for what they write or say.
The intention is to encourage and allow witnesses to be more open and forthcoming about their evidence. The police or Crown Prosecution Service will not be able to rely on what is said in the Inquiry, or use any information that comes out of it to inform any investigation against the witnesses – whether civilian or police. This also includes whether to initiate an investigation.
This does not mean that the police cannot conduct investigations into individuals who appear in the Inquiry based on information obtained outside of the Inquiry. Several former undercovers are known to have been the subject of criminal investigations by the police.
The exact text of the Attorney General's Undertaking is as follows:
It is undertaken that, in respect of any person who provides evidence or produces a document, information or thing to the Inquiry, no evidence he or she may give to the Inquiry, whether orally or by written statement, no any written statement made preparatory to giving evidence, nor any document,thing or information produced by that person to the Inquiry:
- will be used against him or her (or their spouse or civil partner) in any criminal proceedings (whether present or future or on appeal from a conviction); or
- will be used when deciding whether to bring such proceedings,
except proceedings where he or she is charged with having given false evidence in the course of the Inquiry or with having conspired with or procured any other person to do so or is charged with any offence under section 35 of the Inquiries Act 2005 or having conspired with or procured other to commit such an offence.
It is further undertaken not to use in criminal proceedings (whether present or future or on appeal against conviction) against that person (or their spouse or civil partner) any evidence which is itself the product of an investigation commenced as a result of that provision by that person of any evidence, document, thing or information to the Inquiry.
For the avoidance of doubt, this undertaking does not preclude the use of a document and/or information and/or evidence identified independently of the evidence provided by that person to the Inquiry.
While it was common ground among the various core participants in the Undercover Policing Inquiry that there should be an undertaking against self-incrimination, the non-state core participants raised the issue that such protection would not cover third parties named by witnesses as participating in criminality.
They contended that this could have a chilling effect on the willingness of non-state witnesses to come forward. Potential witnesses were concerned that in giving evidence they would incriminate others and open them to further police prosecution, even though the witness themself was protected from this. It was understood that the specific nature of this request for an extended undertaking had no precedent in law.
As a result, the Inquiry held its fourth procedural hearing on the issue on 27 April 2016 to hear arguments from the different parties to allow the Inquiry Chair to determine whether further protection needed to be sought from the Attorney General to enable the Inquiry to carry out its function.
The Inquiry Chair at the time, Sir Christopher Pitchford, ruled in May 2016 that he would not seek such an extended undertaking from the Attorney General, but did not rule out seeking one on a case-by-case basis should the need arise.
He also noted that any such prosecution would have to pass a public interest test by the Crown Prosecution Service, and summarised the position of the CPS’s barrister, Tom Little, as:
There were other means available to the Inquiry to give reassurance to witnesses. In practice a witness in the Inquiry, X, with a tie of loyalty to his friend or associate, Y, would not make himself or herself available to give evidence in a subsequent prosecution of Y. In that event, the only route by which the evidence of X could be admitted in the trial of Y was through the ‘hearsay’ gateway provided by section 114 of the Criminal Justice Act 2003. Given the circumstances in which that evidence came to be provided to the Inquiry, it would be improbable that a prosecutor could satisfy the interests of justice test provided by section 114(1)(d) and (2) of the 2003 Act. It followed that the prospect of a prosecution based on such evidence was remote.