This legislation set out the statutory legal framework under which the Undercover Policing Inquiry works and grants it particular powers. For example, mentions to Rule 9 and Rule 10 requests for evidence are references to such powers.
Inquiries are established by Government departments (the ‘sponsoring department’) under a Terms of Reference which set out the issues which they are mandated to examine.
The Act states that the general purpose of an inquiry is to learn lessons of why things went wrong and to make recommendations back to the sponsoring department. This includes making findings in support of that. It does not have the power to intervene in criminal justice procedures or act as a court of law, though it is a judicial body.
This does not mean the Inquiry is without teeth. As a judicial body it is able to make a variety of orders which carry legal penalties if not complied with. This includes, for example, matter relating to disclosure of material, and conduct of evidence hearings. Many of the orders the UCPI has made to date involve anonymity of relevant individuals. The Inquiries Act means a breach of such orders may result in a referral to the High Court with various sanctions including fines and imprisonment.
It also has the power to compel witnesses, provided they reside within England and Wales. However, the Inquiry Chair has said he will not force non-state non-police core participants or potential civilian witnesses to give evidence. It is unclear if he has used these powers in relation to former police officers.
The Inquiry has also obtained an Undertaking from the Attorney General that evidence given by the Inquiry will not be used against any witnesses, whether police or a civilian.
An important aspect of the UCPI, due to its Terms of Reference, is that it is able to make referrals to the Criminal Cases Review Commission if it thinks there is evidence of a miscarriage of justice.
The Inquiries Act gives the Chair considerable scope and power on how the Inquiry is managed and hearings are conducted, though this is done in consultation with the sponsoring department, in this case the Home Office. These powers include the granting of rights over who can question witnesses.
A particularly important consequence of the legal framework is that the process of the Inquiry is deemed to be ‘inquisitorial’ rather than ‘adversarial’. That is, there is a presumption that all parties are there to assist the Inquiry achieve its terms of reference and are not in conflict with each other. Thus, there are not the same cross examination processes which are found in other judicial proceedings, and the interests of the various parties (core participants) are addressed differently.
As such, much of the activity is mediated through the Counsel to the Inquiry (CTI) who play a prominent role. This is particularly notable in the questioning of witnesses where CTI asks most of the questions. As Inquiry Chair, Mitting has limited the ability for counsel other than the CTI to ask questions except in limited circumstances. For more, see under Cross-Examination.
As the Inquiries Act 2005 only applies to England and Wales, the Inquiry’s remit is limited to this jurisdiction – that is, it cannot compel evidence from people or organisations outside of England or Wales, or investigate undercover activities in other jurisdictions.
The full text of the Inquiries Act 2005 and the Inquiry Rules 2006 can be found at legislation.gov.uk. The Cabinet Office also issues guidance on conduct of public inquiries.