Directions Hearing - Equality Act and Participant Rights

Full transcript

00:43:10 okay

00:43:22 good afternoon everyone and welcome to the afternoon session of the directions hearing at the undercover policing inquiry

00:43:28 inquiry i will hand over now to our chairman sir john mitting to continue proceedings chairman thank you mr man

00:43:37 thank you sir um sir i've taken the opportunity during the luncheon of german to reduce the remaining submissions i wish to make um

00:43:49 to make um hopefully in the interest of brevity but still covering all the matters that clearly need to be covered in respect of this matter um and so in in conclusion there are five

00:43:59 five points i wish to make um in an attempt to

00:44:01 to bring together the threads of my submissions before lunch and um your observations um on the salient issues firstly this the question of whether your decision on

00:44:13 your decision on audio visual streaming um amounts to the provision of a service or the exercise of a judicial function is clearly complex

00:44:24 clearly complex counsel to the inquiry has expressed no decided view on the matter in their note neither has the

00:44:35 in their note neither has the metropolitan police service this morning in the short time we have had since yesterday we have found no authority on point and apparently neither has counsel to the inquiry

00:44:46 neither has counsel to the inquiry um in our submission before you finally rule on this matter uh we submit that you should allow further time for the core participants to research the matter

00:44:58 to research the matter and reduce their submissions to writing um there is plenty of time to resolve this issue in our submission before the start of the t1 p2 issues secondly we have um in our written

00:45:11 secondly we have um in our written submissions which i should have taken you to

00:45:11 you to this morning um addressed the issue of the provision of a service at paragraphs 22 to 23.

00:45:22 22 to 23. we did not address the exercise of a judicial function in our written submissions because we were of the view that the inquiry until yesterday

00:45:34 until yesterday had not given us any reason to believe that it might be that your decision about streaming was potentially exempt from the equality act on the contrary the inquiry's actions have suggested

00:45:45 have suggested particularly an acceptance that the equality act does in fact apply to its operational activity and we say quite rightly so the inquiry has in practice identified operational activity

00:46:00 identified operational activity the arrangements as to the conduct of its proceedings as being subject to its public sector equality duty for example in the final paragraph of its second equality impact assessment

00:46:15 its second equality impact assessment dated the 26th of october last year the secretary to the inquiry makes the following declaration i have read the available evidence and i'm satisfied that this demonstrates compliance where relevant

00:46:27 compliance where relevant with section 149 of the equality act and that due regard has been made to the need to eliminate unlawful discrimination advance equality of opportunity and foster good relations

00:46:38 foster good relations furthermore as recently as the 14th of january

00:46:42 january less than two weeks ago the solicitor of the inquiry wrote to my instructing solicitor and said the following and i quote the inquiry will of course update the equality impact assessment as soon as possible

00:46:54 soon as possible once a venue is settled given the fast evolving nature of the pandemic arrangements will of course remain subject to possible change thirdly for the avoidance of doubt sir

00:47:07 thirdly for the avoidance of doubt sir and if this is in relation to the point that you raised with me at the very beginning of my submissions we say that you are for the purposes of your decision as to streaming a service provider

00:47:23 as to streaming a service provider under section 29 subsection one of the equality act consequently section 29 subsection 6 that you raised with me

00:47:34 subsection 6 that you raised with me does not in fact apply because section 29 subsection 6 applies to the exercise of a public function

00:47:41 function that is not the provision of a service and of course we say your decision about streaming is a provision

00:47:45 provision of a service and i'm sorry if i indicated anything before lunch to the

00:47:56 indicated anything before lunch to the contrary i just thought it was important that i clarify that so section 29 1 is the

00:47:56 the relevant provision because it defines you for the purposes of this particular decision

00:48:02 decision as a service provider fourth fourthly uh sir just before lunch you indicated

00:48:12 indicated um that you are not minded for reasons that you explained um not to revisit any restriction orders in this case um this issue i anticipate sir is

00:48:23 um this issue i anticipate sir is is not going to go away it's going to keep arising and consequently if we may um we would caution

00:48:32 caution against any blanket refusal to visit any restriction orders restriction orders however difficult they were to resolve however long they took um and of course we accept that given there's 148 of them

00:48:46 of them they are not sacrosanct they they fall to be reconsidered if there has been any fundamental change in circumstances particularly if they were granted on privacy as opposed to security grounds

00:48:59 opposed to security grounds the reality is that a restriction order made

00:49:02 made long before any of us had even heard of covid

00:49:07 covid is we submit out of date and needs to be revisited

00:49:13 revisited taking into account the current reality a fresh balancing exercise needs to be performed

00:49:17 performed relying on an out-of-date restriction order

00:49:20 order is not a proportionate means of achieving a legitimate aim particularly if the restriction order is being relied upon to justify indirect indirect discrimination on the grounds of age disability and or race

00:49:35 disability and or race we do not accept that this is a going to be a massive task as we explained before lunch in respect to the next phase there's only 10 witnesses this applies to we of course accept that in relation to future tranches and phases

00:49:48 future tranches and phases it may well apply to to both to to more excuse me

00:49:52 excuse me but it doesn't necessarily mean that there is going to be a wealth of further information that you're going to have to consider on a witness by witness basis in relation to the office's concern there may be some further information

00:50:06 may be some further information for you to consider but ultimately it may be about um a fresh balancing exercise taking into account what the circumstances are

00:50:20 circumstances are today as opposed to years ago when those restriction orders were initially made and finally uh sir our fifth point whatever decision you ultimately make on the section 29 point

00:50:32 the section 29 point and we hope that you will um accept our invitation to adjourn that until further written submissions can be made by all core participants who have an interest in the matter

00:50:39 matter but when you make that decision sir eventually you will wish to avoid at all costs we have no doubt um indirectly discriminating as a matter of fact

00:50:54 of fact against any non-state core participants on the grounds of age disability race or any other protected characteristic for that matter you will not wish to undoubtedly discriminate against black people the disabled

00:51:04 disabled or those who are older simply because you have decided as a matter of law if that is your decision that you can equality i repeat is absolutely

00:51:15 equality i repeat is absolutely fundamental to this inquiry i have no doubt that you and i agree on that and and therefore it remains absolutely essential

00:51:23 essential whatever your decision eventually on the section 29 point um that we avoid any discrimination whether it is in relation to the law or whether

00:51:34 whether it is in relation to fact whatever your eventual decision is so unless i can assist any further those are

00:51:40 are my submissions on this matter

00:51:51 my submissions on this matter i and the inquiry solicitor and all of us have always accepted that in um making uh decisions uh about um

00:52:05 uh about um practicalities

00:52:13 by way of example the facilities to be provided

00:52:13 provided at a hearing room that we are covered by the duty not to discriminate and the equality act applies in full um

00:52:35 as you my initial view was that um the decision under section 18 1 of whether or not to afford the facility to

00:52:48 to afford the facility to members of the public and reporters to hear and see the proceedings of the inquiry

00:52:53 inquiry by audio visual link was within the

00:53:08 judicial remit because it involved the making of a judicial decision not because it was exclusively a judicial decision but that it involved it and therefore that sufficed to mean that the

00:53:23 service provisions of the equality act did not apply to it

00:53:28 my understanding is that you think that's as i do quite a difficult question um i i i with the aid of my team

00:53:40 i i i with the aid of my team and i take credit to them then thought through the consequence if um we were to treat it simply as the affording of a facility which is

00:53:51 which is one of the definitions of providing a service

00:53:52 service um that then would mean that as i think you've acknowledged the um duty is

00:54:07 the um duty is subject to the prior requirement in section 18 1 that i must not infringe a restriction order

00:54:12 order that then reopens the question uh that then opens the question should i reconsider the restriction or orders already made and that i think as i think you

00:54:26 and that i think as i think you acknowledge would necessarily be a judicial decision

00:54:32 yes um we accept that the making of a restriction order is in the exercise of your judicial function or its revocation or qualification or alteration

00:54:48 well the only reason i'm hesitating is clearly it's a matter that is of central importance but but thinking on my feet if i can put it that way yes yes one moment um i don't know

00:55:00 yes one moment um i don't know claim these are difficult these are not difficult questions or that we can all have instantaneous perfectly thought-out answers to them

00:55:11 perfectly thought-out answers to them that they are difficult questions and um as sometimes happens in the law um one needs to think before answering but i i am not aware of any uh authority or

00:55:17 or provision in the statute which gives an unequivocal answer except the judicial functions answer

00:55:31 the judicial functions answer which i think is is unequivocal yes but but but it's the the fact that your decision in relation to streaming which we say and clearly this

00:55:43 and clearly this may have to be the matter of further argument that we say is an administrative decision that falls under what um the inquiries equality impact

00:55:56 equality impact assessment calls operational activity the fact that that decision

00:56:00 has in the background

00:56:06 restriction orders that you made years ago

00:56:09 ago which we accept were in the exercise of additional function does not mean that the decision about streaming itself

00:56:14 itself is in the exercise of additional function that's the point that we're seeking to make that there is a distinction to be made between what we say is the provision of a service

00:56:23 a service um an administrative decision in relation to the facilities very much along the lines as you've described and the underlying

00:56:35 the underlying uh restriction orders which may well be um

00:56:38 um and we've conceded in the exercise of a judicial function and i think that is the point that needs to be investigated further we hope before you make a final decision on the matter i'm not sure that further investigation would actually do any

00:56:57 would actually do any good would it uh it's it's an identified problem of construction um i i think that you and i agree on the basic principles um and i can't see what further research would

00:57:16 would throw up well i i'm just conscious that until you sir expressed a view on the matter nobody else including your counsel

00:57:20 counsel um has expressed a decided view on this which potentially reflects the complexity of the matter and um i i given that it has arisen i appreciate that this is our application but i've explained why we didn't address this point because we didn't believe

00:57:33 this point because we didn't believe it was potentially going to arise in the way that it has but given that has it has now arisen fairly short notice and given that we have more than two months three months in fact i think

00:57:44 months three months in fact i think before we start the next evidential hearings

00:57:51 hearings is there any need we ask um to reach a decided view on the matter before all parties concerned can research it further and and make appropriate submissions to you for your consideration it may not require an oral hearing but at least um

00:58:03 at least um the co-participants in my submission should be entitled to do further research and to see whether there are any points that may be of assistance to you because it's so important isn't it because um

00:58:18 because um if you rule that the decision about streaming isn't the exercise of a judicial function then um clearly the equality act point

00:58:29 then um clearly the equality act point falls away even though the larger point about discrimination in our submission does not

00:58:34 does not well then shall we for a moment address the underlying merits leaving the law to one side for a moment

00:58:42 moment um the metropolitan police have put forward

00:58:43 forward a viable proposal for audio streaming it contains one or two qualifications which might or might not be practicable and

00:58:55 be practicable and might or might not be acceptable but forget about the comparative details if i decide that there should be audio streaming

00:59:05 streaming and i make no secret with the fact that i am minded to do so yes then um that will overcome will it not all but the opportunity for those who hear the stream

00:59:25 for those who hear the stream to see the witness speaking yes now that seems to me to be a pretty minor disadvantage we i think that this is i'm afraid so we're

00:59:35 we're where we disagree um um i i don't want to repeat the submissions that mr greenhouse already made on this point i i adopt them but whilst of course we welcome audio streaming it's it's clearly an

00:59:53 streaming it's it's clearly an improvement um over the situation that we had with the rolling transcript in t1p1 that goes without saying but um it is intent to mount uh with all due respect to audio visual streaming

01:00:02 streaming you you you will know sir the importance that

01:00:04 that um both judges and juries frequently place on what they are actually able to see in in a courtroom i have lost count of the number of

01:00:17 have lost count of the number of occasions when i've appeared in the court of appeal criminal division and i have raised a criticism or another about something that's happened in a criminal trial and the the learned lord justices have said to me

01:00:31 said to me um you know the the learned trial judge was best placed um to assess this point and we're not going to go behind what the learned trial judge found and and that's always based on what they can see

01:00:44 based on what they can see and what they can hear it's never based solely on what they can hear and so we we should never underestimate with all due respect sir i'm sure you're not doing the the the the significance of

01:00:56 the significance of actually seeing evidence as opposed to merely hearing it um for those who have to make judgments about truthfulness accuracy and so forth i i take your point

01:01:13 i i take your point i think now regarded as a traditionalist view and there is academic research which suggests that it may have been overrated but um i i'm

01:01:17 i'm the old school in that respect um good but as as far as those who wish to follow what is going on

01:01:28 follow what is going on it's the difference between hearing the news on the wireless and seeing it on the television and for my part i

01:01:37 my part i don't find much disadvantage listening to the news by comparison with seeing it except when there is some dramatic photographed event occurring so i i i think to if to answer that

01:01:53 so i i i think to if to answer that fully i i think i would merely being rep i would merely have to repeat what has already been said by others and and what has been set out in detail in writing i i think that whatever i say on this matter you and i are not going to agree i uh in my submission um

01:02:08 i uh in my submission um the visual aspect of audio visual streaming

01:02:10 streaming is is what would rescue your decision from falling foul of the equality act and the the principle of unfairness as underlie

01:02:24 underlie as um underlied by section 17 3 of the inquiries act where you are um encouraged to act with fairness that's the word of the section in respect to all your decision making

01:02:35 in respect to all your decision making and respecting to procedures and conduct and i think really that's all that i can say about it of course audio streaming is an improvement but it doesn't

01:02:42 doesn't with all due respect go far enough for all the reasons that we have set out and i

01:02:49 i i don't think repetition will strengthen the point

01:02:54 why is it acknowledgment um at some stage

01:02:56 stage during the course of the afternoon there will be a break in this hearing or maybe we will have reached an end earlier than we expect but what i would like to do um is to discuss with um my team in particular with mr barr

01:03:12 um my team in particular with mr barr the suggestion that you make for putting in further submissions for the written submissions i'm not intending to conduct another hearing i don't think that's necessary on

01:03:24 i don't think that's necessary on discrete questions of law like this um paper is at least as good as all submissions um would you please wait behind then

01:03:32 and give us a little time to discuss it between ourselves i understand i'm most grateful thank you sir thank you very much indeed ms williams now i think it is it not

01:03:48 good afternoon sir i i was anticipating you would hear from mr ryder but is that not the case i'm so sorry i do apologize i i say i'd forgotten him is um a terrible confession

01:03:59 confession but i i had um not got my list in front of me and

01:04:02 of me and you're quite right mr ryder is next in sequence and i will hear him first and then come back to you mr ryder

01:04:06 mr ryder thank you very much what at all uh i represent five uh core participants in uh part two uh lord hayne ernest

01:04:20 in uh part two uh lord hayne ernest vodka jonathan rosenhead and christopher gurney

01:04:21 gurney a new core participant who are represented by hodg jones and allen and serious darbs who are represented by bat murphy

01:04:32 murphy um much of what i would have said has been covered either by those who've gone before me today

01:04:36 today or even in some of the correspondence that's taken place very shortly before this hearing started and that's been if i may say so quite helpful

01:04:47 i may say so quite helpful so i adopt the submissions made by mr greenhall and mr mennon without repeating them so i only have some very short points to make four short points um the first point uh is related to

01:05:00 um the first point uh is related to a matter which was set out in paragraph 13 of the accounts to the inquiries note that we were given which related to the funding for advocates only on the day that the core participants they represent

01:05:12 participants they represent would be uh giving evidence and therefore advocates would only be permitted to attend on those days i understand that there's been some clarification

01:05:24 clarification of that uh since uh that letter was since that note was provided this morning indicating that there is an understanding that there will be occasions

01:05:34 occasions when those who are representing core participants may have a direct involvement in proceedings even if the core participant isn't giving evidence on that day and therefore there will be some flexibility about us being able to apply to attend a hearing if there is some

01:05:49 to attend a hearing if there is some important reason why we should be there even if the core participant we represent

01:05:51 represent is not giving evidence on that particular day and uh we're grateful for that degree of flexibility uh we if we may respectfully say so we think it is important we understand of course that we would

01:06:04 we understand of course that we would need to explain why we need to be there but we would be uh grateful for some uh flexibility and some thought um to being given every time we do make a representation that we would need to be there because

01:06:17 that we would need to be there because sometimes it is important both for our clients

01:06:18 clients and to ensure that we can deal with anything that arises in the proceedings that would assist the inquiry and so for that reason i'm not going to address that

01:06:30 address that much further other than to say we are grateful that there is some level of flexibility past paragraph 30. um

01:06:37 um the only comment i would make about it is a more general comment which is that when one is listening to some of the comments from those representing the state core participants there is sometimes a feeling that they are suggesting that

01:06:51 feeling that they are suggesting that any degree of flexibility that you as the chair of this inquiry allow opens a floodgate of a beginning of adversarial proceedings that will suddenly turn into a kind of chaotic

01:07:05 chaotic mess of everybody taking things out of control

01:07:06 control and of course you will very much appreciate and we hope it's been clear from part one that the benefit of having experience often senior council

01:07:19 often senior council representing core participants is to guard against that very difficult issue arising and that we will act responsibly responsibly if we are given some flexibility

01:07:30 flexibility and that there shouldn't be too much anxiety about allowing a degree of flexibility when it comes to asking questions

01:07:38 questions or attending um proceedings to ensure that we can assist because if it is applied to rigidly then we are at risk of not being able to assist in our clients feeling that they are not being given an opportunity to participate fully through us

01:07:53 through us if i may respond to that i mean of course

01:07:56 course the inquiry all of us are conscious of the need

01:08:00 the need um to react to individual situations as they arise and nothing is utterly set in stone but there has got to be a framework

01:08:11 but there has got to be a framework where we start and any departure from it must be obviously a departure and must not become unless it is very good reason established by practice routine um that's why um i

01:08:24 that's why um i i i and our team do favor the um

01:08:35 rule 10 approach of requiring those who want

01:08:36 want topics to be investigated to suggest them to counsel to the inquiry um

01:08:46 um as you know it's now accepted that there should be

01:08:49 should be a face-to-face meeting or video meeting perhaps

01:08:53 perhaps so that any difficulties can be ironed out

01:08:57 out explanations given and so forth um but the basic principle is that questions must be addressed through the inquiry unless by way of re-examination of your own

01:09:08 by way of re-examination of your own witness or unless something surprising occurs

01:09:12 occurs in the course of the hearing or where there are

01:09:14 there are full-blown disputes of fact about matters of importance covered in earlier statements issued by me

01:09:20 me um i hope that meets what uh you're uh suggesting um uh if it doesn't um

01:09:32 um do please um we fully understand that and i'm grateful for that um further elaboration because that is as we understand it i think really all i'm saying is that um we are encouraged by the fact that having learned

01:09:43 having learned um from the experience of part one there seems to be an acknowledgement that one mustn't set the bar too high in in saying well there may need to be a departure from the default position in this particular case because uh realistically we are not going to

01:10:00 uh realistically we are not going to seize on every small departure from the standard

01:10:01 standard uh process in order to say well the president has now been set and this must be done

01:10:07 be done et cetera et cetera we're anxious to make sure that we are able to make good representations as to when we might need to ask questions or might need to attend and we're encouraged by the fact that

01:10:18 and we're encouraged by the fact that there is an acknowledgement that we can do so

01:10:19 do so and in doing so that that each uh application will be considered on the case-by-case basis but there is no rigid written in stone rule that we would have to dislodge in order to be able to

01:10:32 to be able to make our position uh accepted to the inquiry so that that's our i think i'm expressing gratitude that the approaches seems to be slightly more flexible

01:10:40 flexible and that we want to be in a situation where we're not moving towards um having to make some insurmountable hurdle in order to say well it would be helpful if we could attend on this particular occasion or ask an additional question

01:11:00 we are i think then speaking along either precisely the same lines or so close that it doesn't matter thank you very much um the second point uh

01:11:06 uh i would make is just is just really to flag an issue which may arise which is that

01:11:14 that we do remain concerned those of us uh representing uh core participants in part two do remain concerned that there are no core participants in relation to some aspects of what

01:11:26 in relation to some aspects of what might be relevant events i'm thinking particular of the events of red line square in june 1974

01:11:33 1974 there are currently no core participants in relation to that and we believe that there may need to be some further consideration of whether those who are able to provide evidence about those events

01:11:47 evidence about those events would be in a position to assist the inquiry not least because they are similar

01:11:51 similar to the events of 23rd of april 1979 and would give some potential potentially greater background a greater understanding to the inquiry and so uh i i don't suppose to make submissions now but we may be uh making some written

01:12:04 but we may be uh making some written submissions in due course or written applications of due course to for the inquiry to consider whether there are others who could assist in particular with those other events

01:12:18 yes if that's going to be done it'll have to be done quite quickly yeah well

01:12:33 um one of the obvious um blanks in the inquiry's coverage of non-state core participants have been like all them as trotskyist groups

01:12:52 really throughout the period and beyond tariq ali to whom i am indebted for his evidence

01:12:57 evidence is informative and reflective we really don't have many people willing to participate at all the

01:13:06 all the socialist workers party as i understand it took a

01:13:10 it took a decision collectively not to participate um so our one attempt to try to approach an individual who did play

01:13:20 play a significant part in that group uh declined to cooperate so we we've tried but not so far succeeded

01:13:28 succeeded well well i think uh the concern that i'm

01:13:32 i'm expressing i i don't want to to talk about particular groups but the concern that i'm expressing really is that that there are occasionally what appear to us to be gaps in

01:13:40 gaps in what might be the full picture for the inquiry i've highlighted one in relation to one particular instance in 1974 so you you highlighted another area that you think

01:13:50 you think is lacking in evidence and we simply raise the point that we will as soon as we can try to ensure that if there are applications for you to consider about

01:14:02 applications for you to consider about others who may be core participants or may be able to give helpful evidence that we'll get them to you as fast as we can there is there is a tension which you're very well aware of

01:14:16 well aware of which is that because we get the bundle so close to the hearing there is a frantic rush to make sure that everything that that arises out of looking at the bundles that we may need to deal with um and may need to make applications to you about

01:14:25 you about we do in sufficient time that is difficult but obviously we'll do our best in relation to that i i fully understand that difficulty and it is created by the problem of

01:14:38 and it is created by the problem of physically creating the bundle of going through what it contains doing the necessary redaction exercises checking law it really it is quite a major exercise and it involves more than

01:14:52 and it involves more than those who are core participants in this inquiry

01:14:53 inquiry yes um

01:15:10 we i'm going to do our little best to get the um bundles to you as you know by the first of march which is approximately eight weeks before we start the evidential uh part of the process

01:15:22 process um as you know you're getting the annual reports

01:15:26 reports earlier than that and i hope that it will be possible to provide um other significant material of a general kind um to you before then but i'm not willing to make any promises that

01:15:37 willing to make any promises that i can't definitively keep about that and i'm afraid that's the best i can do about that for this phase of this this bit of the inquiry well thank you we understand that

01:15:52 understand that and my third point was about bundles and it's really a short point which is that we

01:15:54 we we welcome the fact that there has been greater access given to to to various people in relation to the bundles

01:16:02 bundles um the uh there is an issue that when we see the bundle we we anticipate that there may be yet further people who we think could assist by having access to the bundle partly because it would concern matters relating to them

01:16:15 would concern matters relating to them or relevant evidence they could give the inquiry and so we're just i think giving some warning that there may be some applications for others to have access to the bundle fairly quickly

01:16:27 fairly quickly after we receive the bundles and um the sooner we can give you the application the better it is for everybody

01:16:33 everybody at the same time if we're required to meet a very high hurdle as to why something is relevant in the bundle that therefore prompts the application it means that we have to wait until we

01:16:46 it means that we have to wait until we peruse the entire bundle before we can make the application so there is a balance to be struck there um this issue was addressed in part in the um privacy rulings that i made now i think

01:16:58 made now i think i can't remember how long ago it was now but some time ago when um i indicated that uh bundles would be shown to uh core participants um insofar as it

01:17:12 core participants um insofar as it affected them containing the names of numerous other people um on the basis that they were not to disclose those names elsewhere but that there was a instantaneous possibility of

01:17:27 instantaneous possibility of applying uh back to the inquiry for permission to show them elsewhere which would be readily given that i i think that deals with the point you're raising

01:17:38 raising are you raising some more i think i think it does i think i'm i'm not really raising the question of the strict rule i'm really raising a question of just alerting you to the fact that we we already anticipate even before

01:17:50 we we already anticipate even before we've received the bundle that there are a number of people who we think we may want we may be applying in relation to so is already there i've said

01:18:01 so is already there i've said uh it's available and it will be exercised

01:18:05 exercised rapidly and um with a view to allowing you to do it if possible well that's very helpful and and that that indication that um that indication about the process is very helpful to us so so i wanted to cover that

01:18:17 cover that and that is thank you thank you very helpful it isn't the whole bundle um but that's not what i had in mind when i made those those um observations and and it's not ruling it when i made that statement

01:18:28 when i made that statement um if if your if your suggestion is we need to show the whole bundle to a whole lot of other lawyers and their clients

01:18:39 clients uh to peruse at your cost and that's a different kettle of fish well i i think each application will will set out exactly what we need and i i don't anticipate many will go that far but if they do we'll set it out but the reality is

01:18:53 but the reality is is that um this is helpful because it allows those of us preparing to peruse the bundle for part two to know that very quickly we can uh make the application within the framework that you set out

01:19:05 framework that you set out and that you and the inquiry team are ready for um those sort of applications to be made as soon as the bundles are being um given to us so that is very helpful to us um

01:19:19 us um my final point really is one which uh uh relates to a concern expressed to us by the core participant uh stevia stubbs um and i think it's important that i uh mention it to you just so that you have an understanding of her perspective um she is as you know the partner of

01:19:34 um she is as you know the partner of blair peach who was killed by a police officer

01:19:37 officer and his killer hasn't been brought to justice and she's now 80 years old she's significant in one sense to this inquiry well in many senses but in one particular sense

01:19:49 senses but in one particular sense in that she's probably the first quarter core participant who you will be hearing from who was the subject of um surveillance and undercover spying in the context of campaigning for

01:20:02 in the context of campaigning for justice in relation to a loved one who had suffered harm through police misconduct and so her perspective and her particular uh position as one of the core participants in this inquiry

01:20:14 in this inquiry is one shared by others but but one that you will have very much in mind is what's been called a victim of that surveillance in a very real sense um

01:20:22 sense um she actually attended notwithstanding her age and she actually attended many of the hearings so i understand and and uh she she watched them and and i think it is important that i i mentioned to you that she

01:20:36 mentioned to you that she asked us to make clear that she she felt disillusioned and unhappy at the hearings she felt that the

01:20:44 the structure of how she was able to be involved

01:20:47 involved and the way the inquiry was carried out was

01:20:50 was unsympathetic and to some extent she sometimes felt hostile to her concerns and her interest as a core participant now i mentioned that because i thought so you would want to know

01:21:01 so you would want to know if that was something that someone in her position felt when they attended um and we mentioned it because uh really it's just to suggest that uh it illustrates that there are times when the

01:21:14 when the nature of the framework of how people are able to participate how the system is set up can give those involved in the process a feeling that they are not fully engaged and can give them a feeling of losing

01:21:28 and can give them a feeling of losing confidence in the process and if someone like celia starts a a campaigner in her 80s who's very engaged and very interested in participating is left feeling lacking in confidence in the inquiry that that is

01:21:41 the inquiry that that is we say with respect to concern for all of us um

01:21:42 of us um we as lawyers representing core participants and as you know i represent a large number of core participants that will go through many transitions uh we'll need the assistance of the inquiry

01:21:53 inquiry to enable to our clients to feel confident that the inquiry is being carried out in their interests and so we welcome in that regard a an understanding about how to improve

01:22:05 understanding about how to improve on what happened in part one that at times there will be scope for a less restrictive view about things we've already mentioned questions or attendances

01:22:17 or attendances and that the clients are able to feel that their lawyers are participating fully and able to engage obviously within the context of this framework and the rules that you've set out

01:22:23 out we understand that you have to make judgments about where the rules should be

01:22:29 be what the framework should be but those who are participating feel that their lawyers can engage goes a very long way and i say this because um while you must balance a number of considerations including the costs of

01:22:42 considerations including the costs of having people participate in the cost of the inquiry duration the way the inquiry is carried out the confidence of those who are core participants is of course very very important in ensuring that the inquiry fulfills its function

01:22:56 function and uh we think it's important uh without

01:22:57 without uh seeking to be overly critical or make great criticism of the way things have happened in part one to ensure that you understand uh

01:23:10 to ensure that you understand uh that those who are core participants want to be engaged and if they don't feel that they are fully engaged then that has a knock-on effect for the confidence in the inquiry in the way they feel

01:23:21 in the way they feel they're able to participate all i would say really from that is that we we welcome a constructive and engaged approach and we understand this directions hearing and others are going

01:23:32 hearing and others are going are an attempt to really make sure that we engage core participants as fully as possible

01:23:37 possible but we do urge you to to proceed with caution sometimes when uh state core participants are urging you to take a restrictive approach in some

01:23:51 to take a restrictive approach in some areas because and i'd probably summarize it in this way

01:23:57 there is little to be gained from an inquiry that if it concludes uh doesn't have doesn't end up with the confidence of those it was set up to benefit

01:24:08 those it was set up to benefit and only has the confidence of the state participants it was set up to scrutinize and therefore the confidence of those core participants is something that is valuable

01:24:21 something that is valuable uh is very important you know to the to the functioning of the inquiry and to the end result of the inquiry and therefore

01:24:25 therefore uh we do hope that through part two and through in following parts we can be in a situation where the core participants do feel confident do feel engaged and i feel

01:24:39 feel uh it would be remiss for me not to have shared that with you so that you understand the process and you understand that the core participants do want to be engaged but didn't feel fully engaged in part one

01:24:58 that is an important point um as far as the particular instance goes um i i don't know but

01:25:09 i i don't know but has a senior stubs

01:25:18 contacted those responsible for organizing the the hearings or the solicitors of the inquiry to raise her concerns she she didn't

01:25:29 to raise her concerns she she didn't feel able to and my understanding is that

01:25:33 that part part of it was because the and i don't want to retread the old ground but part of this because when it's set up in a way that she doesn't have representation at the inquiry she didn't feel able

01:25:44 at the inquiry she didn't feel able to address problems as they arose in in terms of difficulties she was having or points she wanted to make now it may be that some of the points she wanted to make or some of the difficulties

01:25:55 difficulties she's what she was having uh needn't have troubled members of the inquiry or troubled you certainly as you were conducting the inquiry but had

01:26:10 inquiry but had she had solicitors or lawyers with her we would have been able to help her resolve those issues as they were arising now this isn't a plea for me to say lawyers must be present on every single occasion for every person who wants to attend i'm not extending it

01:26:22 attend i'm not extending it in that way but what i am saying is that that

01:26:27 the approach that is being taken does cause

01:26:28 cause core participants who attend in her position to sometimes feel disconnected from being able to engage in that way and it does require some thought and sometimes some flexibility

01:26:43 thought and sometimes some flexibility some level of flexibility about lawyer their own someone's own lawyers being engaged

01:26:47 engaged in order to make sure that people can feel as though their voices are being heard um so if i may say so one answer could be well well but she can approach the the lawyers in relation to the inquiry and i understand

01:26:58 and i understand in theory that may work in many situations that may be an option in many circumstances but there are times when in order for this inquiry to fulfill that purpose of confidence with the core participants

01:27:12 confidence with the core participants some flexibility in allowing what might seem like a slightly more convoluted process of her own lawyers being engaged can actually result to end up with a result which everybody feels more satisfied

01:27:22 satisfied right

01:27:28 i i the two things i i'd like to say to you arising out of that the first is that um if she is willing to do it um

01:27:39 she is willing to do it um it would certainly assist um those running the hearings if they were to hear criticisms

01:27:52 if they were to hear criticisms of the way that the hearings were run or if she has any of their praise of aspects of where the hearing was run but we are on a learning process and i for myself

01:28:02 myself wish to learn and so do those other members of my team responsible for conducting the hearings

01:28:09 hearings all of us wish to learn and the personal experience of somebody like cds dubs who did attend on many of the days

01:28:14 the days of t1b1 and who has shown a continuing

01:28:25 shown a continuing and informed interest in what is going on

01:28:28 on would be valuable um could i ask you to pass that message through to her please yes and and so i think we're very grateful for that sentiment i will certainly pass that on and that is very very helpful

01:28:40 very very helpful the second thing you may not be so pleased about um i have a statutory duty under section 17 3 to have regard to the expenditure of public money on the inquiry

01:28:52 inquiry and suggestions as to how legal representation legal attendance is to be organized is a an ongoing topic of discussion at the moment

01:29:00 moment if the inquiry is to provide the funds for legal representation in one area it may ask

01:29:18 in one area it may ask those in another area to coalesce and agree upon joint representation for certain purposes and during certain parts of the time and so this is a this may prove to be a two-way exercise

01:29:29 two-way exercise and not many receiving a request and either saying yes or no to it it may be yes if you will do something else in return yes and so if i may i don't want to prolong this discussion about

01:29:41 prolong this discussion about expenditure but if i may just for a moment take take up one point the understanding that that we must all work to try and work efficiently and that may mean at times

01:29:53 that may mean at times uh one lawyer representing a number of interests rather than several lawyers doing so i think we all do understand that and and as those of us who are experienced and senior understand the importance of doing that we do that where we can

01:30:07 where we can i think the point i'm making really is that all inquiries are expensive and they need to achieve their aims uh by fulfilling their terms of reference but also

01:30:19 of reference but also achieving what they set out to in terms of the the core participants uh feeling that they have had

01:30:25 have had a hearing that they feel satisfied with if that's at all possible and i suppose what i'm really saying sir is that um there are times when what might seem like

01:30:38 like a useful way to reduce expenditure in some one particular way can end up being a slightly false economy in two ways

01:30:48 two ways one literally because a rigid rule which one must follow subject to exceptions can we all appreciate end up becoming more costly when you're having to get do an elaborate amount of work to

01:30:59 get do an elaborate amount of work to explain why you fall into an exception so there's always a risk of that and and secondly

01:31:04 secondly and perhaps more elusively

01:31:15 and perhaps more elusively it can be costly in terms of the cost of the confidence of the core participants and and one mustn't have lose besides the fact that sometimes a a small additional expenditure in one area can reap enormous returns on an investment in the confidence that the core participants have in

01:31:29 participants have in how the questions are being asked or how the evidence is coming out this isn't a a plea to completely restructure how you're allocating the resources in this but it's simply to say that

01:31:40 it's simply to say that there is a point at which a small degree of flexibility which may seem to be slightly more giving slightly more expenditure in one area can be enormously beneficial

01:31:57 area can be enormously beneficial in ensuring that core participants feel that they are having a hearing where their lawyers are involved and that can be very worthwhile even if it is slightly more costly than a reduced cost which in the end results in core participants

01:32:10 in the end results in core participants not feeling engaged that's the point i'm making

01:32:12 making i have been doing my best to explain uh the position of the inquiry which will be

01:32:19 will be dealt with in detail by dr bishop when he discusses these matters with you but i wanted everybody

01:32:33 i wanted everybody simply to be forewarned that um if if um there is um give in one area there may be taking

01:32:41 be taking another well so those are all the points i have to make and i'm grateful for you um uh making the points and for the points you've made particularly in relation to seedless jobs which will certainly be passed on thank you for that thank you thank you very much indeed um now i have got the right person now ms williams

01:32:54 person now ms williams yes thank you sir it's ten to three now um as i indicated i did want to discuss with my team

01:33:06 with my team um a point raised by mr mellon um if you would uh rather make your submissions in one go i'm perfectly happy to break now a bit earlier to take a slightly longer break so that i can discuss what i need to uh

01:33:18 i can discuss what i need to uh about mr mennon's point uh alternative if you want to start now and break about quarter past 20 past i'm more than happy with that as well sir i was intending to be brief so i will be

01:33:31 so i will be unless something unexpected arises i will

01:33:34 will anticipate finishing a long way before the time that you've mentioned for a break i wouldn't thought i'd be more than about 10 minutes oh in which case um carry on please i may say one or two things to you which might elongate your uh

01:33:49 might elongate your uh um but we should still finish before um 3 15. so it probably makes sense for me to commence and see how i go thank you sir sir as you know i represent the uh category

01:33:58 category f and category h uh core participants uh in terms of the general issues that you've already heard submissions on from mr greenhorn mr mennon and mr ryder i adopt those submissions

01:34:11 and mr ryder i adopt those submissions my remit is to deal with specific issues that arise in relation to category f and category h core participants

01:34:22 core participants so the main reason why i can be uh short uh today subject to matters you want to raise with me is uh in light of your decisions that were communicated yesterday in council to the inquiries notes in

01:34:38 in council to the inquiries notes in relation to access to the hearing bundle and also in relation to access in attendance at the hearing there is nothing further i need to say on those

01:34:43 on those particular topics uh in terms of the detail of the representation arrangements that something that we anticipate as indeed is foreshadowed in uh council to

01:34:56 indeed is foreshadowed in uh council to the inquiry's notes will be the subject of discussion between the rls and uh solicitors to the inquiry in the near future uh so sarah i can um move on from that

01:35:07 uh so sarah i can um move on from that area entirely unless there's anything i can assist you uh um uh you you had a good point and uh by instruction uh the inquiry is conceded

01:35:18 conceded so i should say on behalf of my clients we're very grateful for that um access which is indeed very important uh to our clients i do want to make a few observations if i may uh sir

01:35:30 i may uh sir about uh questioning of witnesses and in particular the two topics that we raised in our written submissions

01:35:43 raised in our written submissions i will be brief because uh as has already been observed uh this is really a question of uh case-by-case uh decisions uh since um uh mr whittam made some brief observations uh this morning if i may sir and also

01:35:57 uh this morning if i may sir and also that the first topic if i may highlight that we

01:36:01 that we one of the two topics we raised in our in our written admissions has not uh uh yet been uh addressed to you in oral submissions and indeed was not referred to in uh counsel to the inquiry's note um

01:36:13 in uh counsel to the inquiry's note um it might have slightly got lost in the um uh

01:36:17 um uh point we made responding to the slater and gordon submissions but the other topic was this which was dealt with at paragraph 69 of our

01:36:28 dealt with at paragraph 69 of our written submissions which was that where there is a situation of a significant dispute of fact significant um as regard the inquiry's terms of reference

01:36:38 reference such that consideration is being given to

01:36:39 to questioning of a witness by legal representatives and not simply by council to the inquiry you had previously indicated sir

01:36:52 previously indicated sir that a core participant would not be permitted

01:36:57 via their legal representative to ask questions

01:37:01 questions unless they were willing to undertake that they too would give evidence we simply wish to put down a marker as we have done in paragraph 69 that it would be appropriate to

01:37:15 that it would be appropriate to allow for situations where that will not be appropriate that it should not be a hard and fast rule and indeed it's not something that rule 10 of the inquiry rules uh mandates and that there may be circumstances

01:37:31 and that there may be circumstances where uh in particular although not exclusively as a result of uh psychological vulnerability

01:37:45 psychological vulnerability of a particular core participant it simply would not be appropriate to require that commitment of the core participant in question to take that approach does not as

01:37:57 to take that approach does not as appear to be suggested in the third uh set of submissions from slater and gordon involve the inquiry accepting um uh on a predetermined basis uh everything that a particular core participant is saying

01:38:09 participant is saying uh uh rather it is simply the inquiry properly taking into account what may be or what is fair and appropriate in a particular uh situation

01:38:21 situation uh uh and it would in our submission be inappropriate for you sir to uh fetter your discretion in advance uh of any such situation uh uh and uh uh not be uh uh willing to take such matters into

01:38:35 uh willing to take such matters into account so hopefully that's not the case anyway but we thought it uh right to just put down that general uh marker if i can call it that can i respond to that um all those years ago now i was

01:38:50 all those years ago now i was making a proposal that i thought would be of

01:38:51 be of benefit to those who do have very significant disputes of fact

01:38:59 fact with an undercover officer or

01:39:10 with an undercover officer or sometimes a manager when it's a dispute in fact you know an undercover officer and a manager i thought it would be a benefit to them and also to me to permit those who experienced the events about which they have a dispute

01:39:25 dispute to put questions to each other via their council in the traditional way and it's been history has demonstrated it's usually a fairly good way of trying to get to the truth

01:39:36 to get to the truth and i was offering that facility rather than the

01:39:40 than the standard form of questioning by council of the inquiry i can readily understand and this may well arise in p2 because there is one

01:39:52 potential witness and now a non-state core participant who whose statement i have yet to receive

01:40:00 receive but once i have received it will have to consider

01:40:01 consider how her evidence is to be admitted if she is willing to give it

01:40:11 give it and what if any particular arrangements are needed for it and this very issue might arise um if it does um a

01:40:24 um if it does um a fair answer and potentially the only truly fair answer is for questions of both sides to be conducted by

01:40:31 by council to the inquiry

01:40:40 but as you rightly indicate on delicate questions like that i have an open mind

01:40:47 open mind and will hear what everybody has to say once i know more about the details of the facts

01:40:51 the facts as in this instance i don't all i know is that there is a dispute effect yes i entirely agree sir and um as you

01:41:02 yes i entirely agree sir and um as you rightly observe it could very well arise in relation to uh the forthcoming phase two for the reason that you've alluded to and that's why we thought it useful to

01:41:07 to uh just mentions at this stage but it must i think we'll all agree be a case-by-case basis approached once the detail of the particular situation is is available to those concerned we accept that and i

01:41:20 accept that and i i would like to make it clear to the individual concerned and those who represent her that um through you that in requesting that she

01:41:29 that she produces a witness statement first before i

01:41:35 before i discuss with her representatives what if any measures should be taken to permit her

01:41:37 her to give her evidence if she's willing to do so uh i'm not um doing anything other than trying to inform myself before i make a significant decision

01:41:51 before i make a significant decision indeed sir well i'm sure that will be heard by those who instruct me but i will um

01:41:54 will um ensure that it is it is passed on thank you

01:41:55 you i only mentioned that because i've seen almost a passing comment somewhere which suggested

01:42:02 suggested that i was um

01:42:07 doing something odd or unusual i wasn't intending to right comment that i made i

01:42:22 it's those who know less about the facts uh who um

01:42:25 uh who um make comments those are that don't have to be um

01:42:31 to be um say controversial perhaps um but at any rate not

01:42:34 rate not not not in keeping with my um task of trying to get to the truth yes sir then the second aspect i just wanted to raise which again we raised in our written submissions in the paragraph that immediately precede

01:42:45 that immediately precede paragraph 69 was a response to the proposal um put forward in the first set of submissions

01:42:56 of submissions uh by mr whitman on behalf of slater and gordon that's the 7th of january submissions paragraph 17 where they proposed that where a witness was

01:43:05 was questioned um with your permission sir by a uh legal representative of a core participant there should be uh an understanding of reciprocity

01:43:19 understanding of reciprocity uh namely uh that then the legal representative of the person who had faced questioning uh would themselves be able to question the person

01:43:30 be able to question the person whose account had been challenged against we entirely accept um as your uh counsel to the inquiry has observed in paragraph 44 the note circulated yesterday that that is something to be

01:43:45 is something to be determined on a a a case-by-case basis the reason why we responded uh to it is because it appeared to us from the way that it was put by mr whittam that he appeared to be advancing

01:43:56 advancing a point of principle uh paragraph 17 suggested that it should ordinarily be the case that in such circumstances uh the um as it were the second

01:44:10 uh the um as it were the second party to give evidence to the dispute uh would face questioning uh by the uh other parties uh representative if they had uh been questioned uh and

01:44:21 if they had uh been questioned uh and uh it appeared to us that it is again inappropriate to uh approach that on a hard and fast rule and that it must be a question of uh considering the particular circumstances again

01:44:34 circumstances again and this will arise in all likelihood in relation to category h when we'll be dealing with core participants who have uh suffered considerable trauma and ongoing

01:44:47 ongoing uh psychological uh difficulties uh and uh we

01:44:48 uh we don't put it any higher than that for now that simply that that is something that

01:44:52 that should be taken into account uh in uh the relevant circumstances um it does appear from the way that mr whittam

01:45:05 whittam addressed you them this morning sir that he may in fact be putting it on a more nuanced basis because this morning he talked about um he said that in such circumstances i may make an application

01:45:19 may make an application to question as opposed to suggesting as i understood it that there should be some hard and fast rule so it may be that there is nothing between us in terms of the process to be adopted like mr whittam as he observed this morning i would

01:45:34 observed this morning i would respectfully ask that if there were to be any further in principle determination on this matter uh that we should have an opportunity to participate in it when i say we whoever is acting on behalf of the

01:45:53 is acting on behalf of the category h core participants at the time and yet to these particular situations they have got to be addressed on a case-by-case basis there is no alternative but to deal with them sensitively and on that basis uh i i wasn't attempting um

01:46:06 attempting um uh when i said that there could be cross-examination of witnesses on critical matters um where they have different

01:46:16 different radically different accounts i wasn't attempting to suggest that that was the only way of doing it merely that that was an opportunity of doing it which i thought would be

01:46:29 of doing it which i thought would be welcomed and i think in principle it was but of course every case of every witness

01:46:34 in particular those who have got vulnerabilities must be looked at sympathetically and on a case-by-case basis or pushing it to the wholly open door there i'm very grateful so as i say the

01:46:45 there i'm very grateful so as i say the reason we raised that point was because it

01:46:50 it it now put in a more nuanced way by mr wisham this morning but it did rather appear from paragraph 17 that he was arguing for something rather more than that but so we're very um grateful to hear the uh reassurance that you have

01:46:59 you have uh given um in that regard and that he did actually he his observations were sensible and sympathetic

01:47:13 his observations this morning were sir yes i um uh readily uh accept that of course one of the difficulties from for my client my clients i

01:47:21 clients i said is merely to give a bit of context not suggesting that we embark on a a lengthy discussion of this one for my clients and categorization is that many of them don't know yet what the accounts of the uh undercover officers will will be from

01:47:35 undercover officers will will be from their perspective the officers know what the women's accounts are apart from anything else they heard those in detail in the opening statements but in many instances they simply have no idea

01:47:47 they simply have no idea of what from their perspective the person

01:47:48 person who perpetrated this gross deception upon them now says and so they filled in something of the state of limbo and so as i say i don't say that to

01:48:00 and so as i say i don't say that to suggest we have a long discussion about it at this stage but it is an important context to the concerns that they

01:48:04 they uh uh raise um with very very limited um uh exceptions i too mean precisely the same um

01:48:18 same um i don't know what they're going to say yes

01:48:18 yes yes we understand that uh sir um that being uh so uh i don't believe there's anything uh useful i can add on those points

01:48:33 uh useful i can add on those points the only other issue i wanted to address you on very very briefly sir because i appreciate um the counselors of the inquiry have made

01:48:40 made the point in their note of yesterday that it is strictly speaking outside the scope of today's hearing is a points in relation to disclosure issues which we dealt with in more detail in our

01:48:53 detail in our written submissions uh and it is if i may say simply to make two very short observations firstly uh uh council to the inquiry and this section of their

01:49:06 section of their submissions refer to the fact that their approach

01:49:09 approach is set out in the disclosure note in relation to trash one uh so respectfully we're aware of that and our written submissions were intended to respond to what is what is there set out

01:49:24 is there set out we are heartened to see from the note of yesterday that there is anticipated to be

01:49:24 be a further written response from your inquiry team and we're grateful for that

01:49:31 that so the second point uh that i just wanted to raise arises from something you

01:49:48 you said this morning at the beginning sir and is purely by way of clarification the category h core participants are aware that the inquiry does not currently have the registry files it is not that they are under a misunderstanding that the inquiry does have them and they appreciate as you said for example in that

01:50:00 as you said for example in that disclosure note that the inquiry has taken the view that it would be disproportionate to obtain them they also appreciate that parameters have to be drawn and that the inquiry is dealing with a vast amount of documentation

01:50:12 amount of documentation but that said they do uh submit as we did in the written submissions and as has been set out in earlier correspondence from burnburg pierce with the

01:50:25 burnburg pierce with the inquiry we do submit that there are particularly compelling arguments uh uh that in the case of the category h core participants obtaining

01:50:37 core participants obtaining the contents of the those files or even some of the contents of those files would likely inform the matters within the inquiry's terms of reference in particular why particular women

01:50:50 in particular why particular women were targeted for the development of these

01:50:53 these deceptive sexual relationships and secondly the methodology that was used you heard a lot in the opening statements made by myself and by ms kaufman on behalf of our respective clients

01:51:05 clients about the techniques that were adopted by the officers uh in developing a false air of uh commonality uh and uh empathy with the women in

01:51:18 uh and uh empathy with the women in question and mirroring their interests and so forth and it is a long-term concern of the category h core participants that much of the material that officers obtained in order to enable them to

01:51:32 enable them to act in that way was likely obtained from this sort of source and so sorry it is for those reasons not to for example see in more general terms what other reporting there were

01:51:46 reporting there were there was about them that the category h core participants have been particularly concerned to understand the contents of these files

01:51:55 files so it is all about the targeting their targeting

01:51:56 targeting and the methodology used by the undercover officers in developing these relationships which we respectfully submit is within the terms of the inquiry

01:52:07 the terms of the inquiry and therefore it is a proportionate line of inquiry um thus far

01:52:18 i have seen and read nothing to indicate that uh undercover officers went back to search in registry files

01:52:29 went back to search in registry files to find out about individuals with whom they were

01:52:32 they were interacting and upon whom they were reporting

01:52:37 reporting nor unsurprisingly have i found any reference at all to

01:52:45 intimate relationships with uh individuals by the undercover officer who had the relationship in the intelligence files that i had read

01:52:58 read one simply wouldn't expect to see that there and

01:53:00 there and unsurprisingly it isn't there

01:53:11 thus far the only material that i've encountered that deals with deceitful relationships are

01:53:22 deceitful relationships are documents which come into existence after

01:53:23 after the existence of the deceitful relationship has been discovered by uh

01:53:37 by uh operational managers um and that's all in effect hindsight it tells you what they knew after the event um but it doesn't tell you anything about what their predecessors knew at the time

01:53:49 their predecessors knew at the time yes sir as as regards your your first point of course as you yourself mentioned a few moments ago you have not at this stage had the benefit

01:53:56 benefit of the accounts from many of the undercover officers majority of the undercover officers who are involved in these relationships um it perhaps underscores the importance when witness statements are being taken from

01:54:08 from these officers to ask them in detail about

01:54:12 about how uh about their their targeting and their methodology and it may be that that would uh indicate

01:54:18 indicate reliance on the sort of information that one finds in these files uh we simply don't know that at this stage your point is well made and those who draft the rule 9 requests um will i have no doubt

01:54:31 rule 9 requests um will i have no doubt at all if they haven't already had them in mind

01:54:31 in mind take them on board um but it it isn't the intention of the inquiry routinely uh to obtain or try to obtain registry files

01:54:44 files um for the reasons that i've explained they contain a whole lot of material no doubt if they still exist which i i simply don't know whether they do or not but if they still exist they will contain a whole lot of material

01:54:58 contain a whole lot of material it has nothing to do with the inquiry and it would not be a proportionate search

01:55:02 search as far as the personal files go to which you also referred in your note they are of course security service files and um i have

01:55:15 no legitimate justification for um

01:55:21 for um compelling the security service do to go beyond

01:55:24 beyond what it has already done to the great assistance of the inquiry by requiring them to produce personal files

01:55:32 files even if i know what the number of the file

01:55:38 file is yes sir um if i may also just respond to the second point you made about the registry files if it's not um trespassing too far on the indulgence you're giving me you made the point about um well one wouldn't

01:55:46 wouldn't expect to see reference to the undercover officer's sexual relationship in

01:55:54 in in in the contents of the files so of course that's right but equally that provides

01:55:56 provides uh as again i believe we touched on in the written submissions another reason why the situation of the category h

01:56:05 h core participants is is distinct and another reason for obtaining the information which is which is this one doesn't get any sense of the scope of what the officer did

01:56:17 officer did from looking for documents in the files in the same way that if an officer is reporting back on a particular organization or individuals within the organization then obviously the officer has a reason to make written records

01:56:28 a reason to make written records all those he or she communicates with has reason to make written record uh of those observations here on the face of it officers had every incentive to try and keep it

01:56:36 keep it um under the radar uh uh and it's precisely because of that that therefore in order to understand uh the scope and the nature

01:56:49 understand uh the scope and the nature of the relationships it may be necessary to

01:56:52 to look wider a point that was made as i say i believe it was touched on our submissions it was certainly made in the earlier correspondence is that by going to these wider files one may pick up clues one may see references

01:57:03 references to uh events that the officer attended i think an example is given of a wedding that an undercover officer attended a reference that was seen in

01:57:16 reference that was seen in in a file that was disclosed in other proceedings and that

01:57:23 and that triggered a recollection that the officer in fact had taken the woman that he was engaged in a deceptive sexual relationship with to to that event now that's only one very

01:57:37 to that event now that's only one very small example but it's an example of how by having the detail that is contained within those files one can begin to build up a picture of uh the extent of the relationship which you'll appreciate in some instances is either denied or minimized

01:57:50 minimized uh my clients say by the by the officer in question um one can build up that relationship in a way that otherwise one may have very little contemporaneous to go on at all and you are largely reliant on

01:58:04 and you are largely reliant on the witness evidence so that's the other benefit we do understand the concerns about proportionality but we do

01:58:09 we do respectfully suggest there are particular circumstances that apply in relation to category h in this regard we have set them out in more detail in our written submissions and in the earlier correspondence

01:58:22 earlier correspondence from burnburg pearce and and we do ask that they're taking into account uh before your team reply to us and or reply more widely in relation to the disclosure issues

01:58:35 disclosure issues thank you for that we've already gone a minute over the um time estimate which which which is not bad for a pair of lawyers you and me no and that covers everything that i wanted to say so thank you for that opportunity

01:58:50 opportunity thank you i'm going to ask that we take a slightly longer break than usual now because i i know that um i do have questions of um two people who made submissions mr skelton

01:59:00 skelton and um uh

01:59:03 and um uh the yeah um

01:59:16 mr mcallister um and i know that um mr barr may want to say something at the end as well and i certainly want to discuss with him what i was talking to mr mellon about so i'm going to suggest that we

01:59:29 to suggest that we break until 20 24 to give us just over 20 minutes to do that thank you sir thank you very much for your submissions thank you everyone we will now take a break until 20 to 4. thank you uh can those of you

01:59:43 20 to 4. thank you uh can those of you in the virtual hearing room please move into your breakup rooms thank you

02:06:00 um

02:23:22 welcome back everyone i will now hand over to the chairman to continue proceedings chairman thank you ms williams

02:23:27 williams may i come back to you first yes sir of course um i want to correct

02:23:38 yes sir of course um i want to correct and qualify something that i said to you about

02:23:38 about rf and pf files i have been put right a process that i had not realized was undertaken is being undertaken although we don't have

02:23:54 have the rf files um we we've never collected them and don't intend to likewise pf files where there is a particular reason for our council to look at the rf or pf

02:24:09 our council to look at the rf or pf file of an individual and this arises in the case of each category h core participant their files are looked at and anything relevant is

02:24:25 and anything relevant is extracted from them and later to be booked

02:24:28 booked through a test of necessity if any such thing is found so i i i write that i should qualify that

02:24:35 that i misunderstood the position and um i've now stated what the position truly is on the basis of having been told by people who know

02:24:52 as regards documents what i said about the intelligence files remains the case that there are we are on the lookout for documents dealing with um uh deceitful relationships

02:25:03 relationships and when i said that nothing had been turned up apart from

02:25:14 had been turned up apart from uh retrospective uh analyses of what had happened

02:25:18 happened that wasn't quite right a very very small

02:25:21 small amount of other material has come to light

02:25:26 light which in due course will be um put through the usual process and uh into the public domain well thank you very much so it's very helpful to have that clarification and in relation to the approach that you've clarified the inquiries taking in relation to the rf and pf files

02:25:39 and pf files we would respectfully submit that that would support our proposition that this is one of these

02:25:45 these circumstances in which it would be proportionate to conduct some investigation into those files well not only is it obviously proportionate it is

02:25:56 it is i understand being done thank you very much

02:25:58 much mr mennon

02:25:59 mr mennon [Music]

02:26:06 so yes mr um time to put in written submissions on the legal question that we were debating um the answer to that is yes

02:26:21 um the answer to that is yes can you do it within seven days please um yes we can do it within seven days thank you mr skelton

02:26:36 yes sir um you heard the submission that the restriction orders made in the case of the undercover officers who are going to give evidence in p2

02:26:44 in p2 should be reopened is there anything you want to say now about that in addition perhaps to putting in something in writing within seven days later uh no so beyond the fact that obviously

02:26:58 no so beyond the fact that obviously that would be a course that we would oppose and i think it was within my submissions made this morning it would undermine um the confidence of the officers in the inquiry process to have all of that revisited which they have

02:27:11 that revisited which they have um gone through previously and are now working on the expectation that they will give evidence with their security or identity is protected but may i um take up your offer of putting something in writing as necessary

02:27:21 necessary thank you mr mcallister

02:27:29 so um i if you can hear me i simply echo mr skelton i um it's a course i would urge against and i would

02:27:37 would take the opportunity for written submissions um if that were being suggested uh well it is being suggested i am giving the opportunity to make written submissions

02:27:50 submissions about that issue uh and and about the legal issue that um mr mellon raised

02:28:01 mr mellon raised whether it lives so to what extent the decision

02:28:04 decision uh about audio visual transmission uh involves

02:28:08 involves the exercise of a judicial function or is jolly administrative and yes and i i take up the offer all right does anybody else want to intervene

02:28:18 intervene in that issue if so please say so now

02:28:34 on behalf of the non-police uh non-state corps participants might i also take up the opportunity of seven days for recent submissions yesterday thank you

02:28:49 so may i say i met that we will avail ourselves of that opportunity as well and if we could have a date obviously following on from the submissions of the non-state

02:28:56 non-state participants since they of course have raised the issue i don't know whether your council will opine

02:29:01 opine before you would want to hear from the state participants or whether you would like to hear from us before this is a matter that um i do need to

02:29:12 this is a matter that um i do need to determine quickly because i am going to issue

02:29:15 issue a written decision consequent upon today's hearing written reason decision and i must do it soon so that everybody knows where they stand

02:29:23 stand and therefore i'm going to ask everybody not to do it sequentially but to put in their own submissions if they have anything to make within seven days understood thank you sir

02:29:33 sir so you raised some other questions with me this morning um and i gave some answers may i add a few words to that um first in relation to water marking

02:29:46 water marking yeah um so the amps position is that it would be

02:29:47 would be a highly valuable security

02:29:59 practical change to add watermarking to the audio only transcript should you so order

02:30:03 order we understand it to be easy to do as a matter of practicality although obviously you will take advice from your i.t consultants it will have two obvious benefits firstly it will disincentivize breaches of the restriction orders

02:30:15 of the restriction orders and secondly it will facilitate enforcement of any breaches of restriction orders and therefore we think it is a basic security measure which um without being oppressive in any way to the recipients of the audio feed

02:30:26 the recipients of the audio feed ought to be put in force and so to that extent we say it should form part of the essential package

02:30:38 so a slightly different position in respect to the jurisdiction issue which you raised we stand by the point i made earlier that it is would be valuable were you to ensure that your um feed such as it

02:30:50 such as it is is only available within the jurisdiction of the inquiry because that will inevitably um lead to the consequence that you can enforce any breaches of uh the restriction orders you've made within your own jurisdiction

02:31:07 within your own jurisdiction however mindful of the ability of those who are maybe hostile to the witnesses to

02:31:09 to um get past the restrict that restriction we recognize that it it would probably be wrong to make it as an essential requirement although we nevertheless ask for you to include it in any event

02:31:21 in any event because it does have some value so lastly

02:31:25 lastly the media raised the possibility of having

02:31:33 having an audio feed which could be paused and rewound the mps understands the reason why that would be beneficial to media organizations although

02:31:37 although we think that it should that benefit should be considered in the context of a transcript which we understand will now be available with exactly that um practical

02:31:53 with exactly that um practical possibility in other words a transcript can be stopped and rewound so that you can re-read the bits that you may not have heard or may have misheard that seems to us to reduce the need for an

02:32:04 an audio feed that has that state that same practical possibilities we are in any event concerned that any form of recording which inevitably would be required by a feed which could be rewound or paused

02:32:16 be rewound or paused would create the risks which i addressed you on earlier so subject to further consultation on the

02:32:25 the uh the practical possibility of that being

02:32:27 being done safely in other words without any recording of any kind uh we would object to such a a course i hope that's nice don't talk that these things have arisen during the course of the hearing and it is um

02:32:42 course of the hearing and it is um i'm grateful to you for your submission thank you

02:32:46 thank you does anybody else apart from mr barr want to make any further submission now because now is your time and if not taken will be lost yes sir

02:32:59 taken will be lost yes sir on behalf of the media organizations i don't want to make any submissions i just simply want to ask for the opportunity if so advised to make the written submissions that you have in mind i don't have instructions from all of the various bodies and it may not be that we ultimately do avail of that opportunity i

02:33:13 avail of that opportunity i cannot think that the media have any interest in that issue so if you want to you can but um i'm not expecting to get anything from you won't be disappointed if i don't

02:33:24 don't thank you anybody else

02:33:38 no then mr barr thank you sam the the only issue that i wanted to reply on uh concerns applications to remove redactions and gists uh i wanted to say two things the first is uh that people watching can be assured that the inquiry legal team

02:33:55 that the inquiry legal team take very seriously uh the importance of being as transparent as we can and when members of the legal team are considering and responding to applications for restriction orders

02:34:09 applications for restriction orders and in those cases which can't be agreed you sir deal with them the need to accord proper weight to transparency and openness is at the forefront of our minds

02:34:21 minds the second thing is that when people who are going to receive the bundle do so there is the facility to apply

02:34:34 there is the facility to apply to set aside or vary a redaction or a gist given the care that we have put into doing so we anticipate that it's only going to be if people reading the documents

02:34:56 if people reading the documents have knowledge that we don't for example or in other exceptional circumstances that they may have information that might

02:35:04 might have changed the decision but if they do please do come forward but please do so promptly

02:35:08 promptly the restrictions order protocol at paragraph 54 sets out the procedure and we encourage prompt applications that was also

02:35:19 applications that was also thank you and i think that concludes today's proceedings uh i will issue in due course a reasoned written decision

02:35:30 a reasoned written decision but that will not be put out self-evidently until i have received the written submissions within seven days that are going to be

02:35:38 made

02:35:43 thank you everyone the directions hearing for today has now concluded those of you in the virtual hearing room may now leave the meeting thank you

02:35:59 you