Neither Confirm Nor Deny and Restriction Orders in Public Inquiries
[The subject of this blog forms the basis of a paper due to be published later this year. As a result it focuses on a discrete issue touching on the policy of Neither Confirm Nor Deny (NCND) in the context of public inquiries.]
The Pitchford Inquiry into Undercover Policing is examining the legal principles governing the application of NCND in the context of s 19 of the Inquiries Act 2005 (“the 2005 Act”; it being an inquiry ordered under the provisions of that statute). The state parties have filed submissions and a witness statement has been filed by the Cabinet Office to assist the inquiry.
All of the submissions deal with the key cases, discussed in an earlier blog here.
In public inquiries, restriction notices (made upon a Minister giving to the chairman a notice) or orders (determined by the chairman) can be made under s 19 of the 2005 Act. As the statement from the Cabinet Office makes clear “police forces…are not part of any government department or agency”, so notices are unlikely to arise during the course of the inquiry (although the Metropolitan Police has intimated it will seek an order as opposed to a notice but it is not immediately clear on what basis it could seek a notice from a Minister).
Restriction orders can only be made where the chairman of the inquiry considers it conducive to the fulfilling of its terms of reference or to be necessary in the public interest having regard to four matters: (a) the effect on inhibiting public concern; (b) avoiding or reducing any harm or damage that might be caused without an order being made; (c) respecting confidentiality; and (d) where not making the order may cause delay or impair the efficiency or effectiveness of the inquiry or result in additional costs. The matters are not exhaustive, so it is open to the inquiry to also consider the significance of NCND if it applies on the facts of the case.
The approach that ought to be taken is not easily identifiable. This blog sets out a possible route:
- Does the application of NCND arise in principle on the facts of the individual case?
1.1 If no, no order should be made, subject to (4) below.
1.2 If yes, consider (2)
- Should NCND apply having regard to the facts of the case? If not applied will it:
2.1 Thwart any on-going investigation or operation?
2.2 Reveal methods, capabilities or techniques, not already in the public domain and avowed, that if disclosed, would damage the public interest?
2.3 Jeopardise the willingness of future police officers to volunteer for undercover work?
2.4 Result in a real and immediate threat to life or injury?
2.5 If no, no order should be made, subject to (4) below.
2.6 If yes, consider (3).
- Are there any reasons why NCND should not apply?
3.1 Has there been any official confirmation that would negate the operation of the policy?
3.2 Is there evidence that the officer engaged in conduct that would amount to “crime or inequity”: Gartside v Outram (1857) 26 LJ Ch (NS) 113 such as to negate the confidential nature of his role?
3.3 Is there evidence that the officer is seeking to rely on the policy in order to frustrate the objectives of the inquiry?
3.4 Is there a risk justice might miscarry if the policy was applied?
3.5 Is it obvious to the reasonable observer that the officer was deployed in an undercover capacity?
3.6 Is there some other reason that needs to be weighed in the balance in determining whether the policy should be applied?
- The application of s 19 of the 2005 Act (assuming no issues of delay, efficiency or effectiveness or cost arises)
4.1 Is there a real and immediate risk of death or injury to the witness if no order is made and if so, will any order avoid or reduce this risk (bearing in mind this is a high threshold and that any threat must be supported by objective verification: Re Officer L  UKHL 36)?
4.2 Has the witness been given any assurances about the confidentiality of the information they have provided or may provide to the inquiry and if so will any order respect any conditions as to confidentiality?
4.3 Will the making of the order inhibit the allaying of public concern?
4.4 On balance is an order necessary in the public interest having regard to the matters set out at 4.1 to 4.3 above?
4.5 If no, does the application of the policy of NCND, if made out, justify the making of an order?
4.6 If no, no order should be made
4.6 If yes, an order should be made but consideration should then be given to how its terms can interfere with the principle of open justice to the least extent possible.
This is a suggested route, applying the identifiable principles. It is not reaching any view on what the terms of any orders should be.
© Simon McKay (2016). Please ask for my permission before using or copying the material contained in this blog. If you do, attribute it to me with a link to the original content where possible. This is opinion, not legal advice.