- See also: Rule 10 Questions
There are two routes by which the core participants can ask questions of a witness.
- They can put in what are called Rule 10 Questionnaires, which are submitted to the Counsel to the Inquiry (CTI) in advance. In principle, in public inquiries, the majority of questions put to a witness are done by the CTI, and occasionally by the Chair himself.
- They can seek permission from the Chair to put questions directly to the witness after the CTI has asked theirs.
The Inquiry Chair, Sir John Mitting, has restricted the grounds on which cross-examination of witnesses giving live evidence can take place, preferring the Rule 10 Questionnaires.
In the wake of issues that arose during Tranche 1 Phase 1, the non-state core participants requested changes including the right to 30 minutes of cross-examination of former undercovers and managers. This was addressed in the January 2019 Directions hearing, in the wake of which Mitting wrote:
16. Save as set out below, the questioning of witnesses will be conducted by counsel to the Inquiry or by me. Recognised legal representatives of core participants and, where they are not represented, core participants themselves, will have the opportunity to propose questions or areas of questioning for consideration by counsel to the Inquiry and me before a witness gives evidence. Such requests must be made at least one week before the day on which the witness is scheduled to give evidence. (The Inquiry will publish a list of witnesses to core participants directly affected by the undercover policing in a given tranche at least four weeks in advance of the start of each hearing.) With good reason, late requests will be entertained and considered on a case specific basis.
17. There will be circumstances in which the questioning of a witness by a recognised legal representative will be both permitted and encouraged after counsel to the Inquiry has questioned the witness. They will arise when there is a significant dispute of fact between the individual or individuals represented by the recognised legal representative and the witness. This is likely to occur in three circumstances: when it is alleged that an undercover officer has encouraged, incited or participated in a serious crime alleged to have been committed by a core participant; when a deceitful sexual relationship is alleged, but disputed by the undercover officer; when there are significant disputes of fact between a manager and an undercover officer who is a core participant about what each did or knew. [emphasis added]
In each case, the individuals concerned are likely to know or assert the existence of facts which support their account against that of the other. Such requests, with details as to the questions or areas of questioning, must be made at least one week before the day on which the witness is scheduled to give evidence. In each case in which direct questioning is permitted, the person on whose behalf the questions are asked will be expected to be willing to give evidence themselves. If they are not, direct questioning on their behalf will not be permitted.18. Where no such dispute of fact exists, questioning will ordinarily be done by counsel to the Inquiry or by me. An example will illustrate the difference. Non-state non-police core participants have a legitimate interest in exploring what managers – and their superiors – knew about alleged misconduct by undercover officers, but are unlikely to have or to assert personal knowledge of facts relevant to the issue. The efficient and cost effective investigation of this issue cannot be achieved by multiple questioning of managers by many recognised legal representatives. Questions must be directed through counsel to the Inquiry or me.
The legal basis for all this is set out in Rule 10 of the Inquiries Rules 2006 which states:
(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.’
Many of the questions asked of witnesses during live testimony can be grouped together, as exemplified in the categories below. Generally, the questions build on what a witness wrote in their statement and rarely stray too far from that.
1. Establishing credibility and knowledge base:
The questions aim to establish the witness's level of involvement, knowledge, and authority to speak on the topics discussed. Questions probe their role, length of involvement, and direct experiences.
2. Corroborating or challenging other evidence:
Many questions reference reports or statements from other sources, asking the witness to confirm, deny, or provide their perspective on that information.
3. Exploring organisational structures and decision-making:
Questions delve into how the organisation operated, who made key decisions, and how information flowed within the group.
4. Examining specific events and their context:
Detailed questions about particular demonstrations or incidents aim to reconstruct what happened and understand the witness's involvement or knowledge.
5. Probing inconsistencies or contradictions:
The questioner highlights apparent discrepancies between the witness's account and other evidence, asking for explanations.
6. Exploring motivations and intentions:
The questions seek to understand the goals, strategies, and tactics of the organisation and its members.
7. Assessing awareness of potentially controversial activities:
The questioning explores whether the witness knew about or sanctioned any violent or illegal activities.
8. Examining relationships with other groups:
Questions probe connections, collaborations, or conflicts with other organisations.
9. Understanding the historical and political context:
Many questions seek to situate events within broader social and political movements of the time.
Types of questions people might expect to face:
1. Role and involvement: "What was your position within the organisation during this period?"
2. Factual recall: "Can you recall approximately how many people attended that demonstration?"
3. Opinion on reports: "This report suggests X. Do you believe that's an accurate characterisation?"
4. Clarification of terms: "When you use the term 'confrontation', what exactly do you mean by that?"
5. Hypothetical scenarios: "If such a proposal had been made, would you have been aware of it?"
6. Interpretation of documents: "Looking at this leaflet, how would you interpret the phrase 'confront them in their bunker'?"
7. Comparisons: "How did this event differ from previous demonstrations you had been involved in?"
8. Decision-making processes: "Who would have been responsible for making that kind of decision?"
9. Personal observations: "What was your personal experience during that police charge?"
10. Reflection on past actions: "Looking back now, do you think the organisation's approach was appropriate?"
11. Awareness of other actors: "Were you aware at the time of any individuals or groups planning to escalate beyond peaceful protest?"
12. Contextual understanding: "How did the political climate at that time influence your organisation's strategies?"