Lord Justice Leveson’s inquiry into phone hacking will take place before the conclusion of two criminal investigations and possible criminal trials. Normally, a public inquiry as a route of investigation is an alternative rather than a precursor to criminal investigation or prosecution.
A public inquiry which precedes the conclusion of related potential criminal proceedings carries inherent dangers. Lord Justice Clarke, in the public inquiry into the Marchioness riverboat disaster, explained the risks:
“I do not think it is in the public interest to allow parties to use public inquiries as a dry run for their civil litigation or to prepare a case for a later prosecution.”
On the one hand, the Leveson inquiry has no statutory power to determine civil or criminal liability. But its powers do make it clear that it is not to be inhibited by any likelihood of liability being inferred from its findings or recommendations.
Obviously, the inquiry is extremely keen to be independent and to be seen as so. It has already insisted on using its powers to compel evidence from witnesses rather than rely on voluntary cooperation. So how will it navigate the tightrope between finding the truth and not prejudicing any possible prosecutions?
One of the most important decisions Leveson has to make is the extent of any immunity and self-incrimination protection the inquiry will afford witnesses. It has already provided a preliminary list of witnesses to the police and the DPP so that those witnesses can advise the inquiry (privately if they wish) that they are suspects under criminal investigation. The inquiry might simply require such witnesses to answer questions and produce documents and leave them to claim protection against self-incrimination when they felt it necessary. But that might cause nervous witnesses to clam up on their lawyers’ advice.
Alternatively the inquiry might obtain in advance an absolute self-incrimination immunity from the attorney general or the Director of Public Prosecutions that no one will be prosecuted for any offence (except for perjury-type crimes) on the basis of any evidence that person gives to the inquiry – as happened in the recent Baha Mousa inquiry.
Would that be enough to prevent any ‘closing of ranks’ or attacks of ‘selective amnesia’? Might Leveson seek to go further and provide such an immunity in respect of any prosecution based on any evidence that a person may give against himself or another? Witnesses are more likely to speak freely at the inquiry if prosecutions will not flow directly from their testimony.
The inquiry’s first rulings concerned which parties qualified as core participants and were pretty uncontroversial. It will be interesting to see whether its rulings on the extent of the witness immunities and self-incrimination protection meet with universal approval, and whether any attempts at judicial review follow if not.
And how will the inquiry avoid prejudicing any criminal prosecutions? Theoretically it could sit partly in private but given its obvious desire to achieve total transparency this seems most unlikely. Its terms of reference do not permit it to adjourn for a year or more until the outcome of any criminal proceedings in known. And it has already made it clear that although it will be advised by the DPP on any conflict with the criminal investigation, the ultimate decision in that respect will be its alone.
The inquiry’s terms of reference might have been drafted narrowly so as to avoid any substantial overlap with criminal proceedings but there was huge pressure to afford it the widest possible remit, given its significance. The terms are very wide indeed and include express duties to inquire into any “unlawful” conduct. Clearly that overlaps with the matters under investigation by the police.
It is possible that if the inquiry concludes that its findings, whilst not determinative of criminal liability, are likely to create a serious risk of prejudice in any criminal proceedings it could produce two versions of its report: an edited public version which is released ahead of any criminal proceedings, and a full version which is only released after any criminal proceedings. Security regarding the full report would be a major issue and speculation surrounding the content of the full report would be unavoidable. Overall, that would not be a very elegant solution. The police and CPS are seeking to steer a middle course and are making a joint submission to the inquiry on Monday that all new inquiry material should be vetted by them before it is published.
The inquiry panel has been subject to some serious criticism lately, and the lord chief justice recently felt it necessary to defend his decision to appoint Lord Justice Leveson. Given the difficult and subtle issues relating to the criminal investigations, the choice of the inquiry chair as a senior judge with extensive criminal experience may prove to have been particularly astute.
Alex Bailin QC is a barrister at Matrix Chambers
This article was originally published on “Guardian Law” and is reproduced with permission and thanks.