RULING BY THE INQUIRY PANEL ON REPRESENTATION BY THE CROWN SOLICITOR’S OFFICE
Prior to the commencement of hearings on 29 May 2007, the Inquiry Panel had granted representation to the legal representatives of Mr. David Wright, the deceased’s next of kin; the Northern Ireland Prison Service (NIPS) and the Northern Ireland Office (NIO); the Police Service of Northern Ireland (PSNI); and the Prison Officers Association (POA). The grant of representation to these organisations was on the basis that the Panel were satisfied that those organisations had a legitimate and genuine interest in the business of the Inquiry and representation was considered necessary throughout the Inquiry hearings.
In granting this representation, the Panel understood that certain employees and former employees of NIPS, the NIO and the PSNI, and members and former members of the POA, who would be witnesses, would also be represented. However, the basis of granting representation to witnesses was different. A witness was unlikely to require representation throughout the Inquiry proceedings and would only require representation while s/he was giving evidence and during the evidence of any other witnesses which might affect his/her evidence.
The Panel were also persuaded that a number of other individual witnesses should be individually represented. As these were grants of representation to witnesses and not organisations, the representation was limited to the occasions when their clients were called as witnesses or were the subject of evidence, as explained above.
This basis for the granting of representation takes into account the statement on Governing Principles for the three Public Inquiries that was issued by the Secretary of State for Northern Ireland in April 2005. The eleventh Governing Principle provides the following: ‘In addition, where witnesses are called to give evidence to the Inquiry the reasonable cost of their legal assistance will be met from the public purse, to enable them to prepare for and deliver their evidence’.
In a letter dated 13 August 2007, Messrs John McAtamney & Co, the solicitors for Mr David Wright, wrote to the Inquiry questioning the representation by the Crown Solicitor’s Office (CSO) at the Inquiry. The Panel considered this letter at a meeting in August and decided that they would hear oral representations on 17 September 2007. At the hearing on 17 September submissions were received from: Mr. Donaghy for Mr. David Wright, Mr. Waite for the CSO and Mr. Johnson for the NIO and NIPS, who had also lodged skeleton arguments.
At the hearings in October, November and December 2006 the CSO represented the NIO, NIPS and individual present and former prison service staff. When the Inquiry began taking evidence on 30th May 2007, that representation was split between the CSO and the Treasury Solicitor. The former represented certain present and former prison service staff and the latter represented the NIO, NIPS, and other present and former NIO and prison service staff. Whereas before hearings in May 2007 it would appear that Counsel instructed were from the Northern Irish Bar, after the resumption Counsel instructed on behalf of the NIO and NIPS as well as by CSO were all Junior Counsel from the English Bar with chambers in London. No-one enquired at the time about the changed representations, though as the hearing progressed, the Panel enquired of Mr. Waite whom he represented.
The CSO have provided the Inquiry with more than one list of their clients. “Clients” were not necessarily confined to those who had been witnesses or those who had been identified as potential witnesses. They included those who had given evidence and whose evidence to the Inquiry was complete and others who had not been identified by the Inquiry as witnesses. On that basis, it is considered that currently CSO represent between forty and fifty individuals who are still to be called as witnesses by the Inquiry. We stress, however, that we consider the number of CSO clients is not a factor for the purposes of this decision: only that, if witnesses give evidence, they should be represented, consistent with the eleventh Governing Principle. It must however be recognised that representing individuals only, as they now do, the CSO can only represent witnesses and do not have the automatic right to be represented throughout the Inquiry hearings as in the case of the organisations referred to above.
The questions for the Panel are, firstly, whether the individuals represented by the CSO should be represented separately from their employers or former employers, the NIO or NIPS. Secondly, if separate representation is appropriate should that be by the CSO or the solicitors acting for the POA who also represent present and former prison officers. Finally, if separate representation is appropriate, should that be full representation, that is representation throughout the Inquiry hearings.
It was explained on behalf of the NIO and NIPS how the change in representation came about. The decision to make the split in representation, we are told, was made at a high level and was taken in order to better manage resources between different interests and to reduce the potential for conflicts of interest. Broadly, the split, as we understand it, is on a policy/operational basis. Thus, those responsible for the setting of policy are separated from those with operational responsibility for the management and running of individual prisons. The Treasury Solicitor, through Ms Laurence, acts for the NIO, NIPS and ten individuals who might be regarded as HQ staff.
The concern expressed by Mr Donaghy on behalf of Mr. David Wright was that there is dual or over representation of the NIO, NIPS and their employees at the Inquiry and this is likely to lead to a duplication of cross-questioning. He said there is no need for separate representation and pointed out that until the split in representation earlier this year, the CSO had represented the NIO, NIPS and all of the individuals now represented by the CSO. Mr Donaghy said that no clear case has been made out to show any conflict of interest between these individuals and their employers and if there is such a conflict in the case of a witness, consideration should be given to his/her being represented by the POA legal representatives. He also questioned the extent and duration of any separate representation.
That concern is understandable. We however are persuaded from our experience thus far, that Counsel have shown a sensible judgement and that there has not been such a duplication of cross-questioning to date. In any event the Chairman will, if necessary, intervene to prevent such duplication of cross-questioning.
We are satisfied that there is a rational basis for the split in representation and that the status quo ante should be maintained. There is clearly a great deal of potential for conflicts of interest to arise between certain present and former employees and their employer. In addition, we have to consider and apply the eleventh Governing Principle, which makes it clear that individual witnesses are entitled to representation for the purposes referred to. The split of representation that has been effected addresses this difficulty sensibly and we see no need for a specific test to address the question of whether a conflict arises. To ask the individuals now represented by the CSO to move to another legal representative at this stage would not be helpful to them and would not reduce the overall cost of the Inquiry. It might also lead to further delay if new legal representatives had to take fresh instruction, particularly where witness statements are complete or at an advanced stage of preparation. There is the additional benefit of having representation for a relatively large group of witnesses in one place. Accordingly, we consider that representation by the CSO of those individuals it now represents should continue.
The remaining question is the extent of the CSO representation and whether it should be full in terms of being throughout the Inquiry hearings. As stated above, representation of an individual witness is not the same as representation for an organisation or party that has a legitimate and genuine interest in the business of the Inquiry.
As the CSO now represent only individuals, we consider there is no automatic right for them to be present throughout the hearings. For example, there are parts of the hearings that will deal only with intelligence matters external to the prison. However, the CSO do represent a number of witnesses whose interest is so central to all of the issues under consideration by the Inquiry that we consider it would be right for them to be present throughout the hearings to represent those interests.
We remind all representatives that any cross-questioning must not only be relevant but must relate to the interests that they represent. We consider that would provide a sufficient safeguard against any risk of duplication or over representation.
Lord MacLean
On behalf of the Inquiry Panel
1 October 2007