Directions Hearing - Tranche 1 Phase 2 Arrangements

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00:13:00 you

00:13:22 morning everyone and welcome to the directions hearing for the undercover policing inquiry my name is Jacqueline Purser and I'm the

00:13:30 hearing manager for those of you in the virtual hearing room please remember to turn off both your camera and microphone unless you are invited to speak by the chairman as Zoom will pick up on all noises and you will be on the screen I will now hand over to our chairman Sir John Mitting to formally start proceedings chairman.

00:13:49 Thank you.

00:14:00 We are now about to embark on the directions hearing that I foreshadowed last time we spoke.

00:14:09 Mr. Barr would you like to introduce your own submission and the parties please.

00:14:15 So good morning thank you yes we should have Mr. Skelton on behalf of the Commissioner of Police for the Metropolis, Mr. Boyle on behalf of the National Police Chiefs Council, Ms. Brown on behalf of the Home Office, Mr. McAllister on behalf of the Designated Lawyers Officer Core Participant Group, Mr. Wittam for the

00:14:44 Slater and Gordon clients, Mr. Bunting for seven media organizations, Mr. Greenhall for the Non-Police Non-State Core Participant Group, Mr. Menon for Core Participants represented by Saunders solicitors, as well as some of the clients represented by Dayton Pierce-Glynn, including Audrey Adams, Richard Adams, and Mr.

00:15:13 Williams, Richard Adams, and Ken Livingston. Mr. Rider is representing clients who are represented by Hodge-Jones and Allen and Bat Murphy solicitors, Ms. Williams is representing the Category F and Category H Core Participants.

00:15:36 We circulated a note yesterday in response to the written submissions of the Core Participants that we've gratefully received. Having set out our thoughts in writing, I don't propose to develop them orally sir, in order to maximize the time that you have to hear from the advocates for the Core Participants.

00:16:03 Unless there is anything that I can assist you with further at this stage, sir, that is all I have for the moment.

00:16:11 Thank you very much. Mr. Skelton, you are first on the list. Before you open your submissions, I would like to say something in response to the letter sent by your solicitor, which was circulated by the inquiry, and also to attempt to clear up one or two misconceptions that may have taken hold.

00:16:30 When the inquiry started, the Metropolitan Police Commissioner said that the Metropolitan Police had a small number of millions of documents which it was going to make available to the inquiry.

00:16:46 Unfortunately, given the investigation conducted by the inquiry, which was based upon individual undercover officers to start with, the form in which the documents were held by the Metropolitan Police was not readily accessible to the inquiry.

00:17:07 Further, it was not accessible except through, if I can call it by the old-fashioned word, a library, with only a small number of librarians.

00:17:19 Accordingly, despite the statement made by the Metropolitan Police, for all deployments before, as I've now found July 1995, the inquiry had to look elsewhere to obtain the documents that it needed.

00:17:42 It has obtained a very large number of documents which has permitted it to form, from the point of view of documentary material, a comprehensive, not absolutely comprehensive, but a sufficiently comprehensive picture of the intelligence reporting of undercover officers before July 1995.

00:18:05 The period after then, the Metropolitan Police records are fully sufficient.

00:18:13 I'm sorry, they're fully sufficient. There is a difficulty in respect to the particular officer, which we will attempt to overcome in due course.

00:18:25 The Metropolitan Police have therefore since almost the start of the inquiry been in the same position as many others in dealing with documents that have not been produced by them.

00:18:38 The idea, which is widely held, that the Metropolitan Police has been sitting on a vast pile of documents which has been meticulously studied to ensure that it is up to speed is not, I think, correct.

00:18:52 Furthermore, the manner in which the documents are organized would make it as difficult for the Metropolitan Police as for the inquiry to be able to deal with the challenges posed by the inquiry.

00:19:06 So the Metropolitan Police has been in the position of the recipient of documents, just as everybody else has, and it has, as you know and I know, the task and the duty of ensuring that documents which are put into the public domain do not contain material that would damage the public interest.

00:19:28 That is what has taken the great bulk of the time which we have all taken to get here.

00:19:38 The second point I would like to make is this.

00:19:43 I entirely accept that those instructed by the Metropolitan Police Commissioner, the CL team, have done their level best to cooperate with the inquiry.

00:19:58 The idea that they have deliberately obstructed it is simply erroneous. Nevertheless, they, like the inquiry and everybody else, face difficulties which have to be cemented, and they're manifold.

00:20:13 They are not easy to cement.

00:20:17 And they inevitably create difficulty and delay.

00:20:23 The idea that the difficulties that we have experienced can be put down to deliberate obstruction is wrong.

00:20:36 A misconception that I've noticed from one or two of the non-states written submissions is that the inquiry has the registry files, i.e. the special branch individual files of all individuals who are core participants.

00:20:57 And that is wrong. The inquiry does not have their registry files because the registry files contain intelligence from a wide variety of sources which are irrelevant to the inquiry, and it is not a productive exercise for the inquiry to call for or examine the registry files of individuals.

00:21:20 Furthermore, we would only find out which individuals matter by looking at other documents before we get to registry files.

00:21:30 I'm sorry about that long introduction. Would you like to begin your submissions?

00:21:34 Thank you, sir, and thank you for the clarification of the points you've made.

00:21:38 So may I address you first and I think principally on the issue of broadcast.

00:21:43 And of course I'm mindful that you've had the NPS and indeed everyone else has written submissions and so I won't detain you sirs, I hope, too long.

00:21:52 So as it stands, the pandemic will prevent you from having a conventional in-person hearing in April. And I think as everyone agrees, this is very far from ideal.

00:22:03 So you must determine how best to facilitate participation and attendance at a partially remote hearing in a manner that is lawful, fair, practical and safe.

00:22:15 We agree with your counsel in their written submissions that were received yesterday that two essential questions for your determination are first, should this next phase of the hearings be streamed over the internet with a 10 minute delay?

00:22:30 Second, if so, should the stream be audio only or audiovisual?

00:22:35 In short, sir, the NPS's position in respect to the first question is yes, but only with some basic security measures in place.

00:22:44 And the second question is that audio only is the only safe option.

00:22:51 So in more detail, taking the first of those issues, should the hearings be streamed over the internet with a delay?

00:22:59 So you've already made a restriction order prohibiting the publication or orders, rather prohibiting the publication of the real names of all the former undercover officers giving evidence in phase two of your hearings.

00:23:12 And those orders are specifically and explicitly designed to prevent the disclosure or publication of any evidence or document which discloses the witnesses identities, including any descriptions or images capable of identifying them.

00:23:27 You've also previously made decisions and directions on the procedures for your hearings, which bear upon these issues.

00:23:35 They include the restrictions on live streaming in your statements of the 19th of December 2018 and 30th of October 2019, and the restrictions you've made on the publication and circulation of images of former officers in your statement of the 29th of January 2020.

00:23:53 So those orders, decisions and directions have been made with the principal purpose of reducing, but not wholly removing or minimizing the risk that witnesses will be identified.

00:24:04 And in the NPS's submission, the proposals that it makes are wholly consistent with that approach.

00:24:12 And they are essential for two reasons.

00:24:16 First, security.

00:24:19 The open and uncontrolled internet feed will undermine the efficacy of your orders and directions by maximizing the remaining risks of witnesses being identified.

00:24:30 And that's for the simple reason that it can be watched in private by anyone and recorded without knowledge and without any consequences.

00:24:38 And such recordings will be permanent.

00:24:41 They can be rewatched, recirculated without limit, with the inadvertent or deliberate effect of identifying the witnesses now or in the future, either by individuals or groups of people, or with the assistance of technology.

00:24:57 So, notwithstanding those risks, as you would have seen from the NPS's written submissions, it recognizes the frustrations felt by the core participants, the media, and indeed some members of the public in respect to the rolling transcript broadcast during the phase one hearings.

00:25:15 So, it does accept that the phase two hearings may warrant a reconsideration of that procedure, if and only if the proper security is in place.

00:25:29 So, that security we say should be analogous or will be analogous to what would have been in place had an in-person hearing been possible.

00:25:39 And also comparable to the measures that may and are routinely taken to access other forms of public online broadcasts, for example, television channels, cultural events, or webinars, with which we are all personally familiar.

00:25:54 And they are as follows.

00:25:56 And this is picking up on the submissions from paragraph 22 onwards in the written documents we serve.

00:26:03 First, there should be a 10 minute delay to prevent accidental disclosures, which it is not understood is controversial.

00:26:12 Second, the NPS says the feed should only be accessible at the time of transmission.

00:26:18 This, sir, we say minimizes the risk of audio or visual identification, for the reasons I've already outlined, without compromising long-term access to the evidence, which can still be available in the form of the transcripts which you will publish.

00:26:32 And as you stated on the 23rd of July, this is sufficient to discharge your obligations under section 18.1 of the 2005 Act.

00:26:41 Third, the feed should be encrypted with access provided on request via login.

00:26:48 As I've said, sir, these measures are standard and are routine procedure for anyone using online services.

00:26:55 Specifically, they will allow you in the inquiry to know who is accessing the feed and to inform them directly of the restriction orders you have made, and thereby minimize the risk of them recording the feed, disseminating it, or facilitating identification of the witnesses.

00:27:13 It will also, at the same time, maximize your ability to enforce your restriction orders, should they be breached, as you will be able to investigate the limited number of people who have accessed the feed.

00:27:26 And such security measures, sir, as I say, mirror the steps that the inquiry was intending to take if its hearings have been in person, which would have involved the registration of attendees at a hearing and the presence of security staff in a hearing room to ensure that recordings were not made in person.

00:27:42 Fourth, sir, we say for the same reasons there should be a restriction order prohibiting the sharing of the link or circulating invitations to the link and the prohibiting of a recording.

00:27:55 Again, sir, for precisely the same reasons, to minimize the risks.

00:28:00 Fifthly, we say that the link to the feed should only be effective and accessible in England and Wales, the jurisdiction within which the inquiry is of course working, and within which it has powers to make and enforce its orders.

00:28:15 And so finally, and I'm not, excuse me for interrupting, I would like to clarify that last point, because I believe I've understood your points up to then.

00:28:25 And I reflected upon them, but I don't claim to understand the last point.

00:28:32 How can that be achieved?

00:28:36 And I think that, as I understand the position to be, it is perfectly possible to pretend to be in one country when you are in fact in another.

00:28:49 Yes, I think, with my limited understanding I think that's correct one can use a virtual proxy server, which I think mimics or indeed links in with a server within the jurisdiction.

00:29:03 I don't want to get into the IT because I think I barely understand sufficiently to give any expert evidence on but as I understand it, it is a practical possibility.

00:29:12 And of course, the those companies, particularly commercial companies that provide broadcasts do routinely attempt to stop the use of such proxies to access their material from outside the UK.

00:29:24 So it may be that your consultants will be able to assist on that.

00:29:29 Maybe they can, but I would like to hear from you that if that is not in fact a practical possibility, or generated can't be, it can't achieve the level of security that you seek, whether that alters your view about the transmission of audio only evidence.

00:29:50 So, speaking without instructions I would say no it doesn't. I think the the other restrictions or measures which I've already identified, namely, the 10 minute delay, the accessibility only at the time of transmission encryption and login, and the restriction orders that you will undoubtedly make

00:30:15 would of themselves as a package be sufficient. If I'm wrong about that, sir, and I appreciate it's difficult for me to take instructions from where I'm sitting, I will no doubt be told that I hope you will forgive me if I try and come back and address you on that briefly.

00:30:29 Of course, because of the propositions that you've asked, that is the only one about which I have any doubt about its practicality.

00:30:38 So there is one further measure which is not explained within the written submissions but which I'm instructed to raise with you, which is also we understand practically possible and standard on some audio feeds, and that is what's known as watermarking, which is a way of adding in an electronic method of identifying the specific

00:31:05 audio feed by reference to the individual who receives it. In other words, each person has a bespoke version of the transmission. It doesn't of course change the audio that as they receive it or listen to it, it's an electronically lodged form of watermarking.

00:31:22 And that would allow you, sir, to identify which recording were publicized or distributed in breach of any restriction order. So I raise this appreciating it's not been pressured in writing, but also appreciating that you will inevitably be taking advice from your IT consultants on the feasibility and practicality of these matters.

00:31:46 Again, that is not something that I claim to begin to understand.

00:31:54 Again, I would ask if that can't be done, is that, would that alter your acceptance of an audio feed?

00:32:04 And again, so speaking without instructions, I'm going to say no, it would not. The other measures I've identified are the more important ones. But again, if I have to be corrected and come back to you, please, I hope you will allow me to do so.

00:32:15 Of course I will. I think that in the end one has to face the fact that if a restriction order were to be breached, it might be difficult to identify the culprit. But the long term consequence would be that we would not be able to do this again.

00:32:37 That might be the overall sanction which would cause anybody who might otherwise think of breaching the restriction orders to think again.

00:32:47 Yes, sir, that must be right. So you in consultation with your legal team and indeed with your consultants may well have other practical measures, security measures that are basic and can be readily implemented, which you wish to outline or your council does.

00:33:05 Of course, the MPS will be ready to discuss those should that be required. And a dialogue about their efficacy and practicality is of course always welcome, as I'm sure it would be with other participants than the MPS.

00:33:19 So the second sort of fundamental and underlying reason why basic security measures are necessary is to obtain the best evidence from the witnesses. And again, this is a point I think picked up by your council in their written submissions, but needs to be I think repeated and emphasised by the MPS as well.

00:33:39 And if security measures are not in place, it will inevitably have a consequential effect on the quality of the evidence that the inquiry receives.

00:33:49 The witnesses in phase two are elderly and retired, and some are in ill health. The prospect of their testimony being freely broadcast and recorded will inevitably be extremely unwelcome and will precipitate a great deal of stress and anxiety within those witnesses, minds and those of their families.

00:34:09 And that will impact on the quality of the testimony that they are able to give. And for some, it will, it could cause them to decline to participate in a remote hearing, because they may wish to say simply, I refuse to let the inquiry staff into my home to ask me to give evidence, bearing in mind that we are in the middle of a pandemic and the willingness and good faith of the witnesses is of course essential component of us all proceeding with these hearings.

00:34:38 And so I hope it's an obvious but trite point that any such steps would seriously compromise your investigatory work and the search for the truth, which is a necessary and essential step of this inquiry.

00:34:49 So as to the practicality of these measures, as I say, the MPS understands that they're relatively easy to introduce and to apply. And so practicality isn't in reality a real obstacle, but your IT advisors will of course be able to advise on this.

00:35:04 And as I've said, the measures are comparable to those routinely taken for other online events and mirror the security arrangements that would have been taken in any event at an in-person hearing.

00:35:15 So they can't by any standards be characterised as onerous, either practically or oppressive of anyone's rights, since anyone of course can apply to you to receive the feed.

00:35:27 So in summary, the MPS's position is that they are a practical and proportionate means for facilitating everyone's ability to participate in or follow the proceedings, while providing some essential basic security protections against the loss of the identities or the uncovering of identities of the witnesses.

00:35:45 So the second question that your counsel posed is whether the feature be audio only or audio and visual.

00:35:53 On this, you yourself have previously recognised the problems and risks that an audiovisual feed presents.

00:36:00 Visual images and footage are one of the primary ways by which people are recognised and identified, either by those watching or listening or by using technology.

00:36:11 So an uncontrolled visual broadcast will obviously jeopardise the witnesses' anonymity and their privacy, and equally obviously will undermine the restriction orders and directions that you have previously made.

00:36:22 From the MPS's perspective, this would be unfair to the witnesses and contrary to the consistent management of the inquiry.

00:36:29 It will also, for the reasons I've already given, compromise the depth and quality of the evidence itself.

00:36:39 So the only safe and fair solution, the MPS says, is for any broadcast to be audio only.

00:36:46 So of course, this will present its own risks, specifically the risk of an audio recording nevertheless being made, publicised and disseminated either by the inquiry potentially, and that is a matter for you to consider, or by individual listeners.

00:37:04 And witnesses may still be identified by their voices, again by individual listeners or by groups or using technology now or at some point in the future.

00:37:14 But so with the proper security measures in place, which I've described in my earlier submissions, the MPS's position is that risk will be at an acceptable level, and as importantly, it will be practically manageable.

00:37:33 So in our written submissions, we anticipate the possibility, no more than that, of applications being made for further restrictions over and above the ones I've identified on an individual basis in respect of individual witness.

00:37:49 So to be clear, it's not presently anticipated that any such restrictions will be necessary in the Phase 2 hearings, but as stated in paragraph 24 of the MPS's submissions, if specific cases arise, then submissions can be made and if necessary, supported by evidence, as your counsel say, so that you can rule upon such applications.

00:38:12 But as I say, sir, this is more at the moment of a theoretical possibility rather than an anticipated event.

00:38:20 So, so far as the issues of discrimination are concerned, the MPS has seen the various submissions on these issues, particularly indirect discrimination by reference to the Equalities Act and various jurisprudence.

00:38:36 So it suffices to say that the MPS doesn't consider that you have acted unlawfully or would do so if mindful of the need to protect witnesses from the risk of identification, you were to facilitate participation in the hearings by an audio only feed with the control measures I've described.

00:38:54 So it's noted that your counsel have not addressed all of the issues raised in the written submissions of some of the other core participants.

00:39:02 And so you may feel that if you do require detailed responses from the MPS and indeed others to those issues, that the better course may be to give permission to serve those in writing after the hearing, bearing in mind that there are some quite thorny legal issues.

00:39:17 As I say, we say they don't in fact bind you and you would not be acting unlawfully. But if you do require the detailed response, it may be in writing is the better course.

00:39:27 So unless I can assist those are my submissions on the issue of broadcast.

00:39:33 May I turn to witness questioning.

00:39:38 So the MPS is primary submission is the rule 10 process will be significantly improved if first participants have longer with the documents and are therefore better prepared to participate.

00:39:50 And second, the procedure itself whereby legal representatives feed in questions and issues to your counsel and have a dialogue with them about which will be pursued is operated effectively.

00:40:03 Your counsel have now explained the disclosure dates for the inquiry bundle.

00:40:07 It's fair to say I think the first of March is not ideal and I know others will have submissions to make on that, but it should provide some assistance to the participants and of course it's appreciated not least by the MPS, how difficult it is to produce a bundle of this nature for these hearings.

00:40:25 And reflecting on my earlier remarks, the MPS plays a part in this process. And it's

00:40:34 I would say on the one hand, the bundle must be disclosed earlier. But if you are contributing to the process, which prevents the bundle from being disclosed earlier, not because of any obstructiveness but simply because of the process that has to be undertaken.

00:40:54 You would appreciate that there is a slight tension between the two considerations.

00:41:00 So that's one point that I must accept.

00:41:04 So just as to the second point, the Rule 10 process. Again, the MPS agrees with your counsel submissions as to the limits of what the witness testimony in this inquiry should achieve in furtherance of your terms of reference.

00:41:20 The benefits of efficient adherence to the Rule 10 timetable.

00:41:25 The value of meetings with legal representatives to iron out issues which are always welcome.

00:41:31 And the need to proceed fairly in respect of any allegations for which there is no evidence in the bundle.

00:41:37 Primarily, as your counsel anticipate and the MPS endorses by giving advance notice of such allegations, so that they can be evaluated and discussed by those core participants and witnesses to whom they are relevant before the witnesses give evidence.

00:41:55 There has to be I think some longstop means of dealing with things that occur unexpectedly in the area.

00:42:03 That must be right. So inevitably in any hearing in person or remotely, issues arise at the last minute, instructions are given which raise pertinent relevant issues which require a change of tack and an improvised response as requested.

00:42:19 I think obviously advanced notice of critical allegations such as occurred with Joan Hillier is obviously beneficial and I think everyone must recognise that.

00:42:28 It can't be argued that it is fair to ambush routinely. Not that that is the allegation, but that is the problem.

00:42:36 It is a late piece of a late allegation to which a witness must respond on the hoof when they could have responded more with better preparation in more detail and with better quality.

00:42:47 And that is the problem that one is trying to address by asking for advanced notice. But I do appreciate that there may be times when that can't be possible.

00:42:56 We will discuss the problems that arose last time with those more personally concerned with them, but your point is well made.

00:43:06 So as to the application by non-state core participants to have 30 minutes to question each witness if necessary.

00:43:15 So it can of course be immensely frustrating for core participants and their advocates not to be able to ask their own questions.

00:43:22 But these are not adversarial proceedings, they are inquisitorial and rule 10 is specifically designed to keep them so by placing the onus on inquiry council to conduct the witness examination,

00:43:34 while still allowing participants to engage in the questioning process by feeding in questions and issues and applying to ask questions where necessary and appropriate.

00:43:44 This process has been tried and tested in many inquiries now in which the subject matter has been equally serious, contentious and emotive.

00:43:53 And it has many benefits. It mutually disarms participants, which makes the proceedings less adversarial, both in substance and in tone.

00:44:03 It is efficient as it prevents the duplication of questions and it shortens the length of proceedings,

00:44:09 as even with the best will in the world, questioning by additional advocates is very difficult to control and inevitably makes proceedings last longer.

00:44:18 And finally, and equally importantly, it encourages witnesses to speak frankly and without stress or fear, thereby improving the quality of their evidence.

00:44:28 And so in considering this issue, you may wish to ask what relevant questions or issues would the non state core participants want to ask that have not been asked and could not be asked by your counsel.

00:44:44 The NPS, broadly speaking, takes the view that there are none. The short answer is all questions and issues can properly be addressed by your counsel.

00:44:54 And so, sir, those are my submissions on the principle matters that I think are for discussion today.

00:45:02 If there are any other matters arising on which you would like my submissions, then of course I will give them.

00:45:08 Thank you, no, I take it you're going to remain here, where you are, and listening to the latest proceed. If I need to come back to, may I do so later?

00:45:17 Thank you, sir, yes.

00:45:20 Now, the next, I think, is Mr Boyle, if he's going to address us.

00:45:28 Good morning, sir. Thank you, sir. Sir, having had the opportunity to consider all of the written statements and the benefit of listening to your counsel and indeed Mr Skelton on behalf of the NPS.

00:45:40 I see observed that we agree with the positions that have been advanced by the NPS and the submissions that you've just heard from Mr Skelton.

00:45:47 But beyond that, sir, we've got nothing further to add to our written submissions.

00:45:51 Thank you very much. Mr Sanders.

00:46:00 So not Mr Sanders, but it may be Mr Callister. I do apologize. I was told in advance.

00:46:06 It comes of my not looking at my notes. Mr Callister, I apologize.

00:46:11 Not at all. And so you will have seen the designated lawyers written submissions that broadly support the status quo modeled upon the Tranche 1 phase 1 hearings at the Amber Hotel.

00:46:25 And that these would be the appropriate format for the forthcoming phase 2 hearings given the pandemic.

00:46:33 In those submissions, the designated lawyers also acknowledged and suggested that earlier disclosure of hearing bundles would substantially meet the concerns raised by non-police non-state core participants about the rule 10 questioning process.

00:46:49 We note that counsel to the inquiries note circulated yesterday has accepted some, but not all of the arguments made about widening access to the hearing bundle and increased funding and representation, which is likely to assist the non-state core participants to feed into the rule 10 questions in advance and further reduce the need for late applications to question witnesses.

00:47:15 The deal didn't file any submissions in response and obviously further submissions have been received more recently.

00:47:25 I don't seek to respond to all of those today, but I do wish to make clear that no concessions are made in respect of either an audio visual or even an audio transmission outside of any physical hearing venue in line with our written submissions.

00:47:46 You say that no concessions are made. That is, from my point of view, not an especially helpful observation.

00:47:55 I understand and will discuss with others the objection to a visual transmission.

00:48:03 But as far as the audio transmission goes, I would like to hear if there are any grounds for objecting to the MPS suggestion, what they are.

00:48:14 So yes, in respect of an audio only transmission, the designated lawyers do not have the corporate knowledge that the MPS or indeed the NCA or MPCC have.

00:48:29 In written submissions, the NCA were contrary to an audio feed, if I read them correctly, as were the NPCC.

00:48:39 It's axiomatic that designated lawyer officers will share any security concerns raised by state bodies

00:48:50 and will have their own concerns about potential identification of them through their voice being recognizable and a unique identifier.

00:49:01 That concern is clearly greater if there aren't the caveats listed by Mr. Skelton, both in writing and developed already before you.

00:49:15 But more specifically, on behalf of the designated lawyer officers, irrespective of security concerns, they would have never spoken publicly about their deployments.

00:49:25 And they may well be affected or inhibited by the knowledge of the audio transmission itself and of their own concerns that people that they know may recognize their voices.

00:49:40 In our written submissions, we cross referred to previous submissions made as long ago as 27th of September 2018,

00:49:50 which, whilst dealing with potentially video transmission, set out points about best evidence and particular privacy concerns that arise on behalf of officers in respect of an identifying feature, their voice being transmitted.

00:50:12 Further, our clients scheduled for phase two would have not anticipated having their voice broadcast beyond the hearing venue, as this was not seriously in contemplation before now.

00:50:27 And overall, a shift to an audio broadcast between phase one and phase two is not conducive to officers giving their best evidence and may be particularly difficult to justify for those officers originally scheduled in phase one who have had to move to phase two.

00:50:49 So based on previous submissions, privacy concerns and the concern that you, sir, will not get from the officers and the frank full evidence if they have consciously or subconscious concerns about their voice being transmitted to a much wider potential pool of people.

00:51:10 Hearing, for example, the exchange between Mr. Skelton, sir, and you about potential practical difficulties with restricting transmission outside of the jurisdiction and that potentially not being caught by any restriction order is likely to fuel that sort of concern.

00:51:31 If, sir, you're not persuaded, of course, I would echo the caveats that the MPS put in.

00:51:38 But without the further potential concession that the jurisdiction issue

00:51:46 is one that should be brushed aside. And ultimately, designated law officers are concerned about their identity. They've been through the restriction order process and anything that is significantly different from an in-person venue is likely to cause them concerns, which ought not to lead to any change from the Amber Hotel type scenario.

00:52:15 So if in individual cases there are more specific concerns, then the DL would wish to join in with what was described by Mr. Skelton as the possibility, if it arises, for more specific applications in respect of specific officers.

00:52:34 Seems to me to be the means by which legitimate concerns of individual officers can be met rather than a broad brush approach taken at this stage.

00:52:49 So ultimately, if that was part of the overall process, that would provide some reassurance. But certainly on behalf of my clients, it is neither, it is not, as I said, conceded and it's certainly not the starting point for the reasons set out previously.

00:53:10 So I think that the

00:53:12 issue of the right to be their privacy concerns and achieving best evidence concerns are there in a broad way for everybody appearing before you.

00:53:22 I am under duties under the Equality Act to ensure, as far as I can, that those who are not able to attend the hearing venue can follow the proceedings.

00:53:38 How am I to meet that obligation without audio transmission?

00:53:45 So the Amber Hotel format allowed, amongst other matters, anybody at home to follow a written transcript near live and also to have access, permanent access, to a written transcript thereafter.

00:54:06 If one stands back and thinks about court proceedings generally, and how much the public know about those when they know about it, the practical realities are that most people, most members of the public, following anything in the news, don't do it, don't follow it in real time, certainly don't have an audio feed of what's going on within courts or tribunals.

00:54:31 And it usually is some sort of catching up with developments. And for the large part, that I would say is sufficient.

00:54:42 How also am I to fulfil my duty under Section 18.1 to ensure that members of the public can, quote, see and hear, close quote?

00:54:55 What we don't know is whether, come April, members of the public will be physically able to attend any public hearing venue or not.

00:55:06 So to an extent there isn't a clear picture at the moment.

00:55:17 So the position must be in respect to Section 18.

00:55:32 And so, forgive me, I'm turning to the section as we speak.

00:55:46 So you only have to take such steps as you consider reasonable.

00:55:54 And if the position is that the pandemic doesn't allow that, then we would say that the written transcript, the live or near live tweeting or broadcasting, and in particular, the rolling transcript that you had before, is effectively the simultaneous transmission of proceedings and is sufficient for your purposes.

00:56:23 I don't at the moment think that providing a transcript permits, in the words of the statute, the proceedings to be seen and heard.

00:56:41 Well, so I'd have to accept that the word see and hear are specific.

00:56:54 So in overall terms, there is not an absolute obligation, sir, on you to have all parts of inquired proceedings transmitted simultaneously.

00:57:12 They won't all be. There will be closed hearings, for example.

00:57:16 And so there must be exceptions to the general format of Section 18.

00:57:23 Well, it's not exceptions to Section 18. Section 18 contains within it the requirement that anything done to permit the public to see and hear proceedings must be subject to restriction orders.

00:57:38 The restriction orders currently in place in respect of the B2 witnesses prohibit publication of any image of them, hence the genuine difficulty of doing anything in relation to video transmission.

00:57:55 But that is not so in relation to audio transmission.

00:58:02 So, indeed, but so you have my overall submission is that that is not something that I can on behalf of designated law officers and can see it as being compatible with

00:58:22 with ultimately their privacy rights and treating them fairly.

00:58:26 But if you're not with me on on the overarching point, then strict compliance with the caveats that the NPS put forward in respect of restriction order pre registration, no onwards transmission, are, it would be at a minimum, the important safeguards.

00:58:51 And as previously as previous exchanges indicate the ability to apply in particular cases, if there is a further or specific concern.

00:59:05 Position understood.

00:59:10 So the other broad issue which I wish to address you on was the rule 10 questioning procedure.

00:59:21 And, as I have said, the designated lawyers maintain that earlier disclosure is the best solution.

00:59:30 And the other concessions on access to bundles within gaps in inquiries note will surely assist non state core participants.

00:59:38 And I do wish to emphasize that the deal do not get early or advanced site of everything in the hearing bundle, for example statements of non state witnesses and non DL officers.

00:59:55 And as time goes on. And in fact, the proportion of DL officers and broadly reduces when compared with other officers and potentially non state witnesses.

01:00:08 So there are issues that arise for non state core participants, in fact, arise for designated lawyer officers particular, particularly managers and so on.

01:00:19 If it's going to be, if there are going to be things said about them.

01:00:27 And it must also be important in mind that the rule 10 approach that you adopt will have to be applied for state and non state witnesses.

01:00:36 And, and as fleshed out by Mr skeleton it is a short path to an undesirable adversarial approach. If the current system is further relaxed.

01:00:54 And the other thing that I wish to emphasize is that where applications are made to ask questions of a of a witness, then contrary to counseling inquiries note paragraph 42.

01:01:09 And that the submissions in response to such an application from the RLR of a witness should be allowed. And, and on this point, we note that paragraph 42 of counseling inquiries note and says we have reservations about the proposal that RLR's RLR's should automatically be permitted to contest applications for permission to question their clients.

01:01:38 The questions given are partly that the current system is is efficient, and partly that it is a, it is fair, because it treats all witnesses, the same way.

01:01:50 And I think that a few short points can be made here. And it's assumed that the choice of words by counseling inquiry of automatically would allow, perhaps for exceptions and for the RLR of a witness to be heard in certain circumstances.

01:02:13 And it would be easier and more efficient to simply automatically allow a right to reply, rather than the onus of being on the RLR of a witness to have to particularly bearing in mind that this is remote and effectively interrupt, say that they wish to be heard, then explain why they need to be heard.

01:02:35 And then, if you give permission to make the application, whereas actually an automatic right to reply is likely to be more efficient, and probably quite quickly would narrow the focus on what it was that was potentially objectionable.

01:03:00 In particular, on behalf of my clients, there's no lawyer officers, we have previously raised issues about the potential fairness of late allegations made against them.

01:03:13 They were made orally back in May 2018, and followed up in writing, and just to put it simply, we wish to guard against unfairness to officers, particularly if it's late notice of an allegation that might give rise to the sort of conflict of interest that is going to cause problems in representation, and ultimately, the smooth conduct of hearings.

01:03:40 All of this, we say, points to having the ability on behalf of our witnesses to object to questions being put.

01:03:59 I may be misunderstanding you. As far as the last minute ambushes go, which have been pre-planned on the basis of information that has not been disclosed to the inquiry beforehand, I have no difficulty with your submission, but I do have a difficulty with establishing a relatively lengthy procedure to deal with what will be fairly minor matters generally.

01:04:28 Arising unexpectedly during the course of the hearing.

01:04:33 And I think one needs to bear those two possibilities distinctly in mind. As far as the first goes, of course, there can't be pre-planned ambushes.

01:04:50 As far as the second goes, I don't understand the utility of having a long discussion before a question or two can be asked arising out of something that has occurred unexpectedly.

01:05:03 So it may be that the reality is, if it's something that's arisen unexpectedly and or is uncontroversial, that there would be no objection.

01:05:15 Before the November video hearing, there had been applications to you to put questions of various T.L. officers, and no point was raised, no objection was raised on behalf of Mr Sanders in respect to those applications.

01:05:39 It is better, we say, to know in advance that there is an opportunity to respond and how to do it. The practical reality is that in uncontroversial cases, it's unlikely to be used.

01:05:54 But having to work out a way to interject or interrupt to apply to be heard, we say is actually contrary to an efficient running of the hearings, and it would be better to know that one could and then hopefully use it wisely.

01:06:18 Right. So what you're asking for is a mechanism under which you can be entitled to say yes or no in 30 seconds.

01:06:30 That is the practical reality that is likely to be what's needed save for those cases that could probably be described as an ambush or an unjustified late allegation.

01:06:46 That's an entirely separate category, but I'm at the moment only dealing with the things that occur on the spur of the moment because of something unexpected arising in the hearing, which is bound to happen.

01:07:01 Indeed.

01:07:02 As you'll be there listening, it won't actually matter very much whether I turn to you and say, Mr McAllister, anything you want to say, or whether you say, please, sir, can I say something?

01:07:13 Perhaps not, but just knowing that it can happen and we would say, why not automatically, is normal standards of fairness within proceedings and shouldn't be controversial.

01:07:30 But better to plan for it than to be told there's no right to reply or there's no automatic right to reply, which appears more as a barrier to efficient conduct.

01:07:46 Now I understand it is in reality a minor problem, which is resolution.

01:07:52 Perhaps.

01:07:55 That is, that is what I intended to address you on, unless there's anything in particular I need to assist you with.

01:08:05 That's very helpful and again as with Mr Skelton, if I need to come back to you later, may I do so?

01:08:10 Of course.

01:08:11 Thank you.

01:08:15 Mr Whittle.

01:08:22 Sir, thank you.

01:08:25 The brevity of our written and oral submissions shouldn't detract from their weight, and I shall, I hope, continue to be brief.

01:08:35 With regard to questioning of witnesses, paragraph 44 of council to the inquiries note acknowledges our submissions relating to cross examination in circumstances which have yet to arise.

01:08:50 It suggests that any such issues are dealt with on a case by case basis when they do arise.

01:08:56 We are content with that, with this caveat.

01:09:01 There shouldn't be any hearing that addresses how the inquiry will approach such matters in principle.

01:09:08 Slater and Gordon should be involved.

01:09:12 I think that I myself or any other advocate on their behalf can't present be presented in the future with a fait accompli because there's been a decision in principle to which we've not been involved.

01:09:24 But with that caveat to one side, dealing with it on a case by case basis would be appropriate.

01:09:32 Because as you've indicated, some matters simply aren't going to be resolved factually by the inquiry.

01:09:38 And so adopting that relevant process of is there a dispute of fact?

01:09:44 Is it necessary to resolve that dispute of fact?

01:09:48 And if it is necessary, why can't it be dealt with by council to the inquiry?

01:09:53 But adopting that practical approach, sir, I have no further submissions on that point.

01:10:01 Before you pass to the next one, can I just explore those a little further with you?

01:10:08 In P2, this issue is unlikely to arise at all.

01:10:13 Accepted.

01:10:15 I'm primarily concerned with P2.

01:10:17 But looking a little ahead, I have set out the circumstances in which I believe it to be appropriate to permit cross examination by advocates for individuals.

01:10:30 Both this both favors some of your clients because when they disagree with their managers,

01:10:36 there may well be things that you want to put to the managers, which they know as a matter of fact, which may be important to be resolved.

01:10:44 Likewise, they're likely to be on the receiving end of cross examination by those whom they may have deceived into a relationship.

01:10:53 So is the allegation.

01:10:54 Now, I don't understand you to oppose the principle that or the practice that cross examination should be permissible by the advocate for the opposing party to the story.

01:11:09 So I don't.

01:11:10 But that involves fairness and a two way street, which we set out in our written submissions and excited a response to.

01:11:19 And our only note of warning would be this is an inquiry, not an adversarial process.

01:11:28 And at least one of the written submissions might forewarn the inquiry as to what we would submit is an unnecessary adversarial nature.

01:11:39 What springs to mind to try and lighten my submission is recalling his honor judge Henry Pownall,

01:11:46 Queen's counsel, once saying to a defense advocate, of course, in a different jurisdiction, cross examination does not have to be cross.

01:11:57 And what I can assure the inquiry is we do retain our submission that if there is a relevant dispute of fact for the inquiry to resolve,

01:12:09 and it is through another core participant who then gives evidence, it's likely that we would make an application to cross examine if the matters aren't dealt with by counsel to the inquiry.

01:12:22 We are familiar in again a different jurisdiction to dealing with particularly vulnerable witnesses, both in chief and in cross examination.

01:12:37 And if we were given permission to ask questions appropriately, because counsel to the inquiry hadn't dealt with them, we would handle our questioning precisely how it is dealt with in that sympathetic way as set out in, although it's currently being rewritten, the advocates toolkits as to how one should deal with vulnerable witnesses.

01:12:58 We're not going to engage in an adversarial unnecessarily adversarial cross examination of any core participant.

01:13:09 I'm encouraged to hear that and grateful for your submission.

01:13:13 And the only other submission that we have set out in our written submissions is to be engaged when there are applications, for example, for the live feeder for Rosa.

01:13:30 And that is something that directly impacts upon one of the slaughter and Slater and Gordon clients.

01:13:37 We submit that we should be involved in such submissions.

01:13:42 It may be that any response and depending on the individual.

01:13:47 No submission made.

01:13:49 It may be that we have a very short submission in writing, but we should be involved in that kind of decision making, because it does have a real impact on some of the Slater and Gordon clients.

01:14:01 The discussion this morning about restriction orders and broadcast comes well to mind.

01:14:07 Always submit in general is that the inquiry must conduct itself to make its restriction orders effective.

01:14:16 And there is a concern that with, for example, an audio feed, as you've raised this morning with Mr Skelton being broadcast outside England and Wales.

01:14:26 What only has to look at high court injunctions preventing publicity in cases involving high profile individuals that is simply then broadcast in another jurisdiction on the Internet and accessed here.

01:14:40 Saying, well, there's now been a breach. So we're not going to do that again doesn't help the person whose restriction orders being break.

01:14:48 That didn't work in the days of printed media in the 1930s.

01:14:53 There's no reason to believe it would be any better now.

01:14:57 But perhaps behind that is a simple assurance from somebody who's getting a live feed that they won't reach the restriction order.

01:15:05 It is not as effective as having other measures in place.

01:15:10 No, but you will recognize that the case of Rosa is truly exceptional, and I dealt with it as it were.

01:15:19 I accept that.

01:15:22 On behalf of the clients that we represent, it may well have been that there were no written submissions to be submitted.

01:15:29 And we certainly not dealing with this as any kind of way to get any personal material that wouldn't be relevant for us to consider at all.

01:15:38 But it may be that simply the fact the matter is going to be dealt with.

01:15:42 And do we have any submissions is a matter that we say out of fairness should be raised when somebody is so directly affected.

01:15:49 We don't think it'll add to any great length, but it is that feeling of fairness amongst the participants.

01:15:57 Unless I can assist you any further, sir. Those are submissions.

01:16:00 That's very helpful indeed. Thank you very much.

01:16:04 Now, Mr. Bunting is next.

01:16:07 I wonder whether this would be a convenient moment to pause for 10 minutes while permitting then Mr. Bunting to make his submissions.

01:16:18 On the other hand, if he feels he can do it in no more than quarter of an hour, we can do it now.

01:16:24 Which would you prefer?

01:16:26 Sir, I'm entirely in your hands. I expect that won't take longer than a quarter of an hour if that assists.

01:16:32 Then I think it would be a good idea if you were to start at a quarter past.

01:16:36 Thank you.

01:16:39 Thank you very much, everyone. We will now take a break and return at 11.15. You may now move to your breakout rooms.

01:28:02 Thank you.

01:28:20 Welcome back, everyone. I will now hand over to the chairman to continue proceedings.

01:28:26 So I'm here on behalf of seven media organizations who are set out in the written submissions.

01:28:32 And they hope to assist you this morning with points of practicality rather than with lengthy citations of principle.

01:28:38 And in making these points, the media organizations recognize the particular problems that arise

01:28:44 as regards public access when a major public inquiry is listed to take place in the middle of a pandemic.

01:28:50 Can I start by summarizing the practical points that I hope to make before developing slightly the submissions in respect of audio broadcasting?

01:28:59 As regards the summary, the media organizations are grateful for the commitment in Mr. Barr, Queen's Council's note,

01:29:06 regarding the ongoing provision of the near live transcript of the evidence sessions.

01:29:12 And we're grateful in particular that that has changed and is now capable of being paused and rewind in a way that occurred in November of last year.

01:29:21 The media organizations, in a nutshell, wish for that to continue.

01:29:25 My understanding is that we had a bit of a false start and then got it right.

01:29:30 We're very grateful for that, sir.

01:29:32 That will continue.

01:29:34 Thank you.

01:29:35 The second point in which the media organizations are grateful is the suggestion Mr. Barr's note at paragraph 25 that the media organization should be provided with advanced sight of the hearing bundle and of the opening statements.

01:29:47 And that will address the concerns we raised in the note in respect of how difficult it was sometimes to follow when advocates were jumping between documents during questioning sessions.

01:29:57 And then the main point, I think today is as regards the audio stream.

01:30:02 And we note in particular the suggestion that there may be further bespoke written submissions on this.

01:30:07 And if there are, we would be grateful for the opportunity to respond to them.

01:30:11 But for today's purposes, we as media organizations respectfully invite you to take this approach and to ensure that there is an audio stream.

01:30:20 To develop that point shortly, if I can, sir, the starting point, of course, is openness, and you will want to take reasonable steps to ensure that proceedings can be seen and heard.

01:30:30 And that obligation in Section 18 is complete answer to Mr. McAlester's objections to broadcasting of any kind.

01:30:37 Of course, in terms of principle, there are two points that the media have sought to draw attention to.

01:30:44 The first is that you're particularly concerned with ensuring public access, but the role of the media is to act as the eyes and ears of the public.

01:30:55 It's through the media that most members of the public can obtain access to legal proceedings.

01:31:00 It's the media who are adept and expert in bringing these proceedings to the attention of the public.

01:31:05 And therefore, even if it's not reasonable for you to facilitate full public access to the proceedings, the inquiry may wish to consider doing everything it can to ensure media access to the proceedings.

01:31:17 I'll interrupt briefly, Section 18 imposes that obligation on me.

01:31:22 You are mentioned in the slightly old-fashioned word reporters, but that means in modern language the media.

01:31:29 Yes, but the simple point that I'm making here is that access to the media may be more easy for you to facilitate than access to the public.

01:31:38 And that's the point that I've sought to draw attention to in Koji's case, which was sent to the inquiry yesterday.

01:31:44 The second point is that even if you, as an inquiry, have concerns with general compliance with the orders, for example, in respect to broadcasting, the media can be trusted to comply with the law.

01:31:57 And that's a point which has been repeatedly made in the authorities and I provided Sarker's case in Reeve BBC to the inquiry yesterday.

01:32:05 The media are well used to complying with reporting restriction orders with the law of contempt with strictures of reporting national security proceedings.

01:32:13 They're permitted access to family court proceedings, even though the public are not.

01:32:18 And they're well used to reporting sensitive inquiry proceedings, even where anonymity orders have been made to protect privacy rights, such as in Manchester, such as in the child sex abuse inquiry, amongst many other examples.

01:32:32 The media will comply with your orders if they are permitted live or near live access to an audio stream of the proceedings.

01:32:40 And so having said that, those points at principle can address the practical points that the MPS have raised in their submissions.

01:32:48 If there is to be a delay to the audio only broadcast, can that delay be kept on one delay and then an audio feed at another delay that may make it more difficult rather than less to follow the proceedings.

01:33:01 Secondly, as regards permitting access only on an encrypted basis or via a login as the MPS suggested paragraph 23 of their note, the media objection, the media don't object to that.

01:33:15 And they, as I've said, use an inquiry can trust that the media will comply with your restriction orders.

01:33:21 As regards whether the footage is accessible only at the time of transmission, the media organizations respectfully suggest that the correct approach here is the approach taken in respect of the transcript feed.

01:33:34 It may be that it's capable of being paused or replayed in the moment, even if it is not then accessible online long term to the media.

01:33:45 Then as regards the England and Wales points.

01:33:50 In my submission, the risk that people will be attempting to get around this by hiding where they are, maybe a risk that is more theoretical than real.

01:33:58 And that's with the suggestion of watermarks on an online feed, the media notes that the MPS ultimately accepts that there will be an audio feed whether or not those things can be done.

01:34:11 There shouldn't be these shouldn't be obstacles to ensure better broadcasting and there may be technical ways around them.

01:34:18 But even if there are not.

01:34:20 And you have a concern as a point of generality as regards people accessing these proceedings from around the world.

01:34:27 This short point that I've already made is that this is not a risk as regards accredited journalists in this jurisdiction.

01:34:34 So if you're permitting people access via an encrypted service via an online login way, and you can trust the media in compliance with authority, then any risk that arises is properly addressed.

01:34:50 And so, for those reasons and for the reasons set out in writing media organizations respectfully invite the inquiry to grant access to an audio feed.

01:35:00 As regards audio visual feeds.

01:35:04 We note the suggestion that in an exceptional case, the inquiry will permit individual applications for access to it.

01:35:13 If that application process is possible, then the media organizations would be grateful for the ability to make those applications and they will only make those applications if it's properly justified in an exceptional case.

01:35:27 And we don't, we don't detect any difficulty with that in suggestions set out in Mr. Barr's notes.

01:35:34 Those in summary, are the media submissions on broadcasting, unless I can assist the inquiry any further on those points.

01:35:43 Yes, we wish to hold out any hope to the media of

01:35:52 an audio visual broadcast.

01:35:56 The measure that I intend to adopt in the case of Rosa is adopted specifically for her quite exceptional personal circumstances, and they don't plainly apply to the media.

01:36:12 They may not apply in the generality of cases, and the shortest point that I make is if they do apply, then such an application process may be open to the media organizations.

01:36:21 I don't seek to push it out for everyone.

01:36:24 I do also have to bear in mind that I am dealing in P2 at least with elderly witnesses mostly, some of whom have personal concerns.

01:36:37 And they may think that broadcasting their image to the media, even under strict control conditions, is a step too far.

01:36:51 So I can understand why subjectively that concern might arise in an individual case. It may be that objectively that that concern might be addressed, but I don't see to push this submission any further than I already have.

01:37:04 Simply that the possibility might arise in an exceptional case for the media to make such an application. I don't detect it that possibility. It's being closed.

01:37:12 Can I just then, before I finish my, before I virtually sit down, if I can put it that way, make one final point. I understand that some of the other core participants have raised concerns about reductions, including in respect of the SDS annual reports.

01:37:29 We recognize that today's hearing isn't listed for the purpose of exploring redactions, but the media share those concerns. And if there is an opportunity to assist the inquiry any further on those reductions, then we'd be grateful for that opportunity from when it becomes appropriate.

01:37:48 I think as far as reduction, that is an exercise that has been done, and it's not intended to do it again or to hear other than one can never say never submissions about them.

01:38:03 Thank you for that indication, sir.

01:38:06 Can I assist you in further? Thank you very much. Thank you.

01:38:15 Now, I think it's Mr Greenhall, is it not?

01:38:18 Thank you, sir. On behalf of the non-police, non-state core participants, we very much welcome this hearing and the opportunity to learn from the events of Trans One Phase One.

01:38:31 We have submitted quite full written submissions. I don't propose to repeat everything in there by any means. I want to focus on four discrete areas.

01:38:43 If I may, the first some brief initial points responding to matters raised by others, then I would like to turn to the issue of live streaming. First, audio and visual live streaming, and then the proposed caveats on audio live streaming as proposed by the Metropolitan Police.

01:39:06 And then finally, some very brief submissions on the Rule 10 questioning process, though there will be areas where I will defer to Mr Menon, who is going to make more length of submissions on those.

01:39:21 So, so if I may start with some initial points and the first in relation to delay of the currently scheduled hearings, the non-police, non-state core participants oppose any delay to the hearings as currently scheduled.

01:39:38 This inquiry has taken some time already and we are keen to progress it.

01:39:46 In relation to the proposed venue, we welcome the suggestion that a set up similar to the Amber Hotel where all the persons are present at the same location. That is our preferred model.

01:40:01 In relation to the posting of a transcript, the broadcast of a transcript with a 10 minute delay, we welcome the suggestion that that is going to continue.

01:40:14 We would ask that on a purely practical basis, as well as the ability to pause and rewind the transcript, that it's possible to select and cut and paste and copy the transcript and read it as if it were a written document rather than essentially a visual video feed.

01:40:34 That has practical advantages.

01:40:38 You are addressing a technical question which is with my competence.

01:40:43 I will leave it as a suggestion to those with the technical skills, but that represents our desires.

01:40:52 Turning now to the issue of live streaming.

01:40:57 This is first the issue of audio visual live streaming.

01:41:16 We are going to be discussing what we say is the obligations and duties which you are under, following from the Equalities Act 2010, in particular, the public sector equality duty.

01:41:29 Are you going to make submissions on the legal position or is that for others?

01:41:35 I don't think the issue is straightforward.

01:41:40 The issue has been raised by counsel to the inquiry in his note yesterday.

01:41:48 We haven't had a significant period to deal with it.

01:41:53 I know that Mr Menon is going to address you in further detail on that point.

01:41:58 The submissions in brief that I would make is first, it would appear that the inquiry has not until so far considered itself to be exempt from the Equalities Act duties, because the impact assessments have been carried out in the past.

01:42:16 In my submission, it's the judicial function exemption under the equality act really would only apply to court judicial functions such as actual adjudication and the matters and issues relating to the format of the inquiry for squarely outside of that.

01:42:40 It would be remarkable if an inquiry were not subject to obligations under the equality act to have regard to the need to reduce discrimination, particularly in the setup of its methods.

01:42:59 We're entering territory which is actually quite difficult, but may I therefore attempt to clarify both your position and my current thinking.

01:43:09 Would you accept that in the performance of core judicial functions using judicial in the non-technical sense, in other words, not meaning I'm acting as a judge because I'm not acting as a judge, but I'm acting in some respect as if I were,

01:43:30 considering, for example, evidence who is telling me the truth, considering procedural matters that deal with the means by which I extract evidence and information, those sorts of topic.

01:43:46 Do you accept that in performing them, I am performing a judicial function?

01:43:53 My submission would be more nuanced. My submission would be if the judicial function were to apply to anything, it could only apply to those functions, and it does not apply to the format of the hearings.

01:44:12 And so if you wish for further submissions on that point, then I would ask for time to provide those in writing because as you've indicated, Sarah, it is a somewhat nuanced point.

01:44:25 I want to try and establish with you, I'm not inviting submissions, I want to try and establish what your current proposition was.

01:44:33 And your current proposition begins with the word if, which is unhelpful.

01:44:41 I'm trying to assist you as best I can, Sarah.

01:44:46 The issue we are dealing with is whether or not the judicial functions exemption would pertain to decisions in relation to live streaming.

01:45:00 My submission is, it is not necessary to determine whether there are any of your functions in the conduct of this inquiry, which fall under the judicial function exemption, one must simply focus on the live streaming issue.

01:45:19 So whether or not the, when it comes to the evaluation of evidence, the judicial function exemption finds there in my submissions is clear that the judicial function exemption does not apply in relation to live streaming.

01:45:36 I hope I set out the position as clearly as I can in relation to live streaming.

01:45:42 Then it seems to me to follow if that submission is right, that applying section 18.1, given the existence of a restriction order prohibiting the transmission of an image, that the issue is determined in relation to visual transmission.

01:46:11 Well, in relation, sorry, suggesting that the existence of the restriction order, as it currently stands, prohibits any further consideration under the Equality Act of methods to address discrimination.

01:46:28 The distribution of an image.

01:46:31 Yes, talking about audio, there's no problem there.

01:46:37 An audio transmission will not ordinarily breach a restriction order, but a visual transmission, most certainly will.

01:46:47 And my submission on that point are that the duties under the Equality Act must be assessed on the current existing circumstances.

01:46:58 The restriction orders when they were in relation to visual images when they were made in initial, initially in December 2018 did not contemplate probably reasons.

01:47:13 Therefore, it is important in the current circumstances to address the

01:47:24 issues in relation to discrimination.

01:47:28 And so the current circumstances are such that they preclude persons with protected characteristics from attending a venue.

01:47:41 And it is accepted in the note from Council to the Inquirer that there is a discriminatory impact on if live streaming of audio visual, in audio visual live streaming is not permitted.

01:47:56 And so addressing is justification. In my submission, the correct approach to the matter is to consider first should live streaming be permitted and in order on the basis of discrimination concerns.

01:48:15 Then restriction orders should be reevaluated in light of that it is it shouldn't proceed the other way around to assume that the restriction orders cannot be varied and therefore rule out any adjustments under the Equality Act that would contradict currently existing restrictions.

01:48:40 You then immediately introduce a practical problem of formidable dimensions.

01:48:48 I have indicated I am not going to reopen restriction orders. They were made after prolonged consideration submissions from all sides, and in particular, evidence and submissions from those who are protected by restriction orders.

01:49:05 If I'm going to have to do all that all over again, we can forget about hearings this year.

01:49:13 I'm sorry, the my submission that the consequences wouldn't be as as drastic as that it would be to look at what the additional concerns raised by live streaming in an in the format proposed would be to those restriction orders.

01:49:34 I'm sorry, that's simply not right.

01:49:37 Those who are protected as regards their image and identity by restriction orders would have every right to make their position clear to reduce evidence about it, sometimes of an expert nature.

01:49:57 And I would have to go through the whole restriction order process. Again, if I was to do that, we know how long it took first time round, the chances of completing it.

01:50:09 This year are not that good.

01:50:14 So that my submission remains that that it is possible for audio visual live streaming to be provided, potentially under certain conditions, which meets the privacy concerns of, and we are dealing in the first instance with undercover offices in T1 phase two.

01:50:40 Those restriction orders were granted on the basis of privacy and not security concerns. So it is that we are dealing with. They were granted on the basis that those offices would have given evidence at an in person hearing, where they would have been seen and

01:51:00 heard by anyone who attended such a venue. So there was always going to be a potential for recognition of an officer by someone who attended the venue. And that was was not

01:51:17 considered to insurmountable. So in my submission, concerns about recognition.

01:51:24 That is not an image that is sitting in a room or being in a room with another person live.

01:51:33 Anything transmitted over the airways transmits an image.

01:51:40 What I said,

01:51:46 You assert that the starting point is we must do all this all over again. And then you suggest it need not take anything like as long as it did first time round. What is your proposition for that? What are you submitting should happen?

01:52:03 I'm submitting that that said you can allow for audio visual transmission of the earrings. It may be considered necessary for conditions in regards to watermarking and the like to be applied to audio visual feeds, and then that may be may well be a mechanism by which

01:52:30 Concerns over privacy and transmission of an image on a limited basis could be achieved. But in my submission, given the limited number of witnesses we are dealing with in Truncheon Phase 2 and the nature of the concern which relates to privacy.

01:52:53 The fact that the events concerned are a considerable period of time ago.

01:53:03 The privacy concerns that have been raised in relation to those undercover offices are not of such magnitude that when weighed in the balance in the present circumstances of

01:53:24 Whether or not a restriction or that should prohibit transmission of an image that it must automatically fall on the back side of privacy.

01:53:35 In my submission when when one assesses the balancing exercise in the present context with those witnesses, the balancing exercise may shift in favor of allowing.

01:53:50 We're across purposes. That is the conclusion that you seek to achieve. What I am concerned with is the route by which it is to be achieved. What's the timetable for this? Who started? What? Who is entitled to participate in it? What is to be done?

01:54:07 I would submit that those officers who are giving evidence are entitled to make submissions and the core participants are entitled to make submissions.

01:54:22 And there is time to resolve that in a relative measure. What is it precisely that is to be done? You know the process that was undertaken last time.

01:54:36 Applications were made. They were supported by risk assessments by witness statements, sometimes by expert evidence. The non state participants were then given the opportunity of responding, which they initially did at hearings and then decided not to and did on paper instead.

01:54:57 I want to know what process you envisage for this and then we can see how long it can take.

01:55:05 The process I would submit would be to indicate, as has been done in the past, a minor position that audiovisual transmission is to be allowed.

01:55:19 What were the underserved? Forgive me for interrupting. That's the contusion. I'm interested in the steps by which we get. Is the individual witness to apply again?

01:55:32 The individual witness be permitted the opportunity to make submissions again on the proposals.

01:55:46 Is this supported by a risk assessment and evidence? If the individual is asserting there is a particular risk to them over and above any general baseline that they are saying they are specific with, then that is something that would need to be supported by evidence.

01:56:11 I anticipate that there would have to be expert evidence of the kind which satisfied me and the wider world that

01:56:27 is possible by receiving an image and storing it to link up the real identity of the person whose image is being shown. That will take a little time, will it not?

01:56:46 I accept that. However, this is building on previous applications that have been made. If there has been expert evidence previously established in relation to a given witness, then presumably that can be relied on again.

01:57:07 But in relation to that, that addresses the factual potential for the identification of a particular witness from an image.

01:57:25 But the ultimate balancing exercise weighs that against the considerations of openness in the current circumstances.

01:57:39 Forgive me again, you're addressing conclusion and not process. I'm concerned with process and the time that it will take. First of all, there will have to be an application by each of the witnesses who object.

01:57:54 I wouldn't want to preclude them from having that opportunity. No, sir. It's up to them whether they wish to avail themselves of it.

01:58:03 They must have the opportunity of explaining why from their own personal perspective, it would be a minimum amount desirable and at worst disruptive of their health to do so.

01:58:20 They would. They would have to be a risk assessment as to the chances of them being identified if their image were to be transmitted.

01:58:34 And there might also need to be evidence in cases where health was said to be at risk.

01:58:45 Yes, sir. I cannot see that taking less than three months. Can you?

01:58:56 So my submission would be that given that the there are three, there is already pre-existing assessments that have been made, the additional evidence that may be required now may not take so long to achieve.

01:59:12 And the additional evidence only has to address matters within the context that is proposed.

01:59:21 And therefore, sir, if you were only prepared to consider audiovisual live streaming subject to conditions or registration and conditions as proposed by the Metropolitan Police, then that narrows down the

01:59:42 the ambit of concerns that may need to be addressed by the evidence. So it may be that the concerns do not need to address the permanent storage of images on the internet broadcast by the inquiries of the world at large, but are in fact addressing the concerns of

02:00:06 audiovisual live streaming being provided to persons who have registered with certain.

02:00:14 Would you then want the opportunity to respond? Yes.

02:00:20 And if you thought it desirable to call or to produce evidence in response?

02:00:28 Potentially, there might be a need for evidence. But so would you want hearing on this?

02:00:39 And whether a hearing is needed is going to depend on the nature of the dispute. But he even yet, I wouldn't rule this out.

02:00:48 I would still submit that there is a potential to address these issues before the hearings.

02:00:56 Then give me please your time estimate.

02:01:01 If there was two weeks for applications to be made, two weeks for responses and a hearing, if necessary, shortly before the hearings are due to start.

02:01:19 If there were to be a challenge to the lawfulness of any decision that I might make.

02:01:26 So there is clearly the potential for the proceedings to become protracted and the potential for its impact on the proposed timetable.

02:01:37 But it is in my submission possible to proceed on the basis that the hearings can take place.

02:01:46 And it may well be that not every decision would be challenged.

02:01:52 And if there were to be one officer who had a challenge and others didn't, well, that might be addressed on a case by case basis.

02:02:01 And it might affect the timing of whether that officer gives evidence in that case.

02:02:07 In my submission that there are limits to as to how far the process can be can be managed.

02:02:13 But it is potentially possible to proceed with an application process and to deal with the majority of applications by the time of the scheduled hearing.

02:02:24 So it is, of course, open to you should you wish to delay hearings if you feel that discrimination issues require audiovisual live streaming.

02:02:37 Your starting point to me was that you oppose any delaying of the hearing.

02:02:42 I happen to share that view. Your suggestion is that any hearing should take place a fortnight or so before the P2 hearing.

02:02:54 Do not realize that that is a time when everybody will be able to hear the hearing.

02:03:00 I'm well aware of the amount of work that this is involved.

02:03:05 I'm not pretending that there aren't potential difficulties that this arise from the fact that the hearing is not a matter of the hearing.

02:03:16 I'm well aware of the amount of work that this is involved.

02:03:21 I'm not pretending that there aren't potential difficulties that this arise from applications of this nature.

02:03:32 But so in my submission, if there are appropriate safeguards imposed on audiovisual live streaming, it may well be that the concerns that might arise on a theoretical basis when assessed in light of the practical realities are not insurmountable.

02:03:58 That has to be my submission in relation to this issue that it is not something that should be put aside on the basis that the process to get there presents challenges.

02:04:13 I won't pretend that it doesn't, but challenges aren't always as difficult as they are anticipated to be.

02:04:29 So if I might address you on the substantive issues in relation to audiovisual live streaming, as I've indicated, we are grateful that council to the inquiry accepts that there is a discriminatory impact.

02:04:51 And that that is something which arises from the pandemic and it affects those persons who have protected characteristics on the basis of their age, race, sex, pregnancy and disability.

02:05:07 Those in light of that discriminatory impact in my submission, the burden is on those seeking to restrict access to audiovisual live streaming to justify it rather than the other way around.

02:05:22 So it is for those who say that audiovisual live streaming should not take place to provide the justification for that.

02:05:35 A number of principle objections have been set out in recent submissions by the parties.

02:05:42 The first relates to the conduct of the Trans One Phase One hearings. In my submission, the Trans One Phase One hearings do not give rise to concerns which would prevent audiovisual live streaming.

02:05:58 The 10 minute delay on the transmission of the transcripts in those hearings worked as it was supposed to do on the rare occasions when it was required to be relied on and there's nothing to suppose that hearings in the future will be any different.

02:06:18 In relation to concerns over whether witnesses are able to give their best evidence, again in my submission, this would not justify a blanket prohibition and this applies to both audio only streaming and audiovisual live streaming.

02:06:39 The witnesses who gave evidence in Trans One Phase One did not appear to be unduly concerned about giving evidence.

02:06:53 The Metropolitan Police asserted today that if there were no security measures in place in relation to live streaming of whatever form, then it will inevitably impact on the quality of the evidence.

02:07:06 In my submission, there isn't an inevitability about it. If there are concerns raised, well, they need to be addressed on a case by case basis, but it would be wrong to assume as a general principle that live streaming of audiovisual live streaming

02:07:22 of whichever form is inevitably going to impact on the quality of evidence heard. And of course, if there are specific concerns for a specific witness, then that can be addressed.

02:07:36 Dealing with the difference between audio and audiovisual live streaming, we've set out in the written submissions, but if I could just amplify them slightly, there is a distinct qualitative difference between audio and audiovisual live streaming.

02:07:52 The latter, of course, allows for both tone and demeanor of a witness as indicated through their facial expressions and general body language.

02:08:02 That has two advantages. First, it assists in understanding what the witness means in being able to follow the evidence because tone and intonation and body language are actually an indicator there.

02:08:18 It also assists in the assessment of credibility, and that is something which is well known to the court. And the advantages of audiovisual live streaming over audio only are recognized by the House of Lords Select Committee, as we set out at our 46th of our submissions.

02:08:45 Those are my submissions in relation to audiovisual live streaming. In my submission, there is a proper basis for re-examining the position in light of the present circumstances.

02:09:01 And in my submission, the logistical difficulties that that gives rise to are not insurmountable. If I might now turn to the specific caveats proposed by the Metropolitan Police in relation to audio streaming.

02:09:17 In relation, first to the delay of any broadcast audio feed, there is no contention that a 10 minute delay is problematic.

02:09:31 In relation to the underlying risk of identification of officers that has been raised through audio transmission.

02:09:47 In my submission, it's important to again bear in mind that we must deal with any increase in risk that arises from identification from audio streaming on the internet versus identification from seeing a witness at a hearing.

02:10:03 There will always be people who can attend the hearing and see the witness there.

02:10:09 And again, if it is to be assertive that there is an increased risk, then the assessment of that really needs an evidential basis.

02:10:21 And it is not clear that that has been provided in certainly in relation to the 12 witnesses that we are dealing with in phase one, phase two.

02:10:33 Now turning to the proposed conditions.

02:10:38 That the transmission is only accessible at the time of transmission.

02:10:45 In my submission is perhaps a somewhat overly restrictive approach to the needs to mirror an in person hearing as closely as possible.

02:10:59 I know that the media proposed that the transmission should be available for a slightly wider period of time and in my submission, any risks or concerns that arise may not be, the difference may not turn on how long the transmission is available for.

02:11:23 In relation to access on request and by registration.

02:11:32 The key question that arises is what details are to be asked of persons during the registration process.

02:11:43 And importantly, if there are personal details collected, what happens to that personal data.

02:11:54 The long please non-state participants would very strongly oppose any suggestion that the names and personal data of those registering for an audio feed should as a matter of routine be provided to the police.

02:12:12 It is not in our submission appropriate that there should be vetting of the audience group.

02:12:18 Forgive me for interrupting. I don't think that suggestion has been made.

02:12:22 I know it hasn't been explicitly articulated and we simply wish to make a marker that that is something that we would have a significant concern about.

02:12:31 I would.

02:12:35 As my understanding of the position is the inquiry would know, but that information, save in the event of a breach, when police might have to be called upon to resist any inquiry.

02:12:49 But saving that event, the details would remain with the inquiry and wouldn't be transmitted anywhere else.

02:12:56 That goes a long way to addressing that issue.

02:13:02 The question is whether it is simply traceability that is sort, then the registration of an email address and nothing more will provide a means to trace where a particular feed has gone to.

02:13:19 So in our submission registration requirements, if they are deemed necessary, should be kept strictly to the absolute minimum and the data dealt with in an appropriate manner.

02:13:34 I note that.

02:13:37 Forgive me for interrupting you again.

02:13:39 This is a practical matter upon which my knowledge and perhaps yours too is imperfect.

02:13:48 If there is to be registration.

02:13:53 Your submission is that the details should be held and held only by the inquiry. I understood that correctly.

02:14:01 Yes.

02:14:03 That's a proposition that I accept.

02:14:09 In the event of a breach.

02:14:11 The inquiry would clearly have to share the registration details of probably everybody who'd been registered, so as to permit the alleged culprit to be identified.

02:14:27 Is that something you accept?

02:14:30 I would accept that in the event of a breach that there may only need to be a need to share data whether it would have to be everyone.

02:14:38 As long as it was kept to the minimum that then that would be the purpose of this.

02:14:43 This is personal data, and it must be processed lawfully.

02:14:49 And that includes not spreading it more widely than is necessary for a legitimate purpose.

02:14:59 I think the principles we are at IDEM on the practicalities neither of us probably understand.

02:15:05 Thank you, sir.

02:15:07 Simply the point I'd say is it may not even be necessary for persons to provide a name, an email address provides traceability.

02:15:16 It's maybe a more minor point.

02:15:21 I would also note that in relation to the Amber Hotel, my understanding was when people registered that was for the purposes of tracking trace, which is in operation at the time, rather than any need to hold persons' individual data.

02:15:41 If we're mirroring the in-person heroes as closely as possible, then again the need for personal data should be kept absolutely to a minimum.

02:15:52 As it happened, it served a dual purpose.

02:15:55 Even when these restrictions are lifted, then it's an issue that might conceivably have to be addressed specifically and on its own.

02:16:05 But for the time being, a side benefit of the current restrictions is that we can do something for public health reasons that we might wish to do also for security reasons.

02:16:20 In relation to the need for restriction orders to be made and those registering for a link to enter into specific restriction orders, in my submission, if the purpose is to make those who receive an audio transmission aware that they should not record or further transmit that,

02:16:46 then that can be provided by a notice being made on the website where you access the web feed from such that you have to maybe click a button to say accept the terms and conditions, as it were, rather than a specific series of restriction orders which may be overly averse.

02:17:09 So the purpose, as I understand it, is to inform persons receiving the line feed that they shouldn't make from a transmission.

02:17:19 A restriction order does not require an individual to acknowledge that they are bound by it. They are bound by it.

02:17:27 And precisely how a restriction order, which will apply to many people, is to be applied, the technical means by which it's to be applied, is something that we can deal with in due course.

02:17:45 And that is probably something that neither you nor I fully understand, but you don't oppose the making of a restriction order in relation to receiving an audio transmission.

02:17:58 If it is a matter which you feel is necessary, then it's not a matter which we would push hard against it.

02:18:09 In relation to an audio feed only being affected to those located in England and Wales, so you've already indicated some of the technical issues that this arise, as a point of principle, we would submit that persons located in Edinburgh and Glasgow and Belfast may well wish to listen to an audio feed of proceedings

02:18:36 and anything that is possible for them to do so, they shouldn't be excluded without good reason. And certainly we would wish for persons located abroad to be able to apply on a case by case basis for provision of an audio feed.

02:18:53 There are participants indeed who are located overseas and might well wish to be able to use the audio feed.

02:19:10 In relation to the proposal by the Metropolitan Police that individuals at increased risk, individual officers at increased risk of identification should have 14 days to make applications.

02:19:25 We would submit that the non-state court participants should have cited those applications and have an opportunity to respond.

02:19:39 Without which we would open matters that I would submit that there is sufficient time for such applications to be dealt with between now and the hearings in April.

02:19:53 The other, forgive me for interrupting, but I think that is a much lesser logistical problem than starting all over again on restriction orders.

02:20:02 I certainly accept that.

02:20:05 The final point raised by council to the inquiry on this matter is that there should only be audio streaming if public access to the hearing venue is impossible.

02:20:22 I think in my submission that there is some merit in looking at the provision of audio streaming, whether or not attendance at an in-person hearing is strictly speaking impossible or difficult or whatever the conditions that may attain.

02:20:41 However the T1 phase 2 hearings take place, it is likely that there is going to be a degree of risk arising from the pandemic.

02:20:52 The level of that risk is going to depend on individual circumstances and a number of factors.

02:20:58 But it's not going to go away completely.

02:21:01 I think in my submission that that is one reason to look for the possibility of audio streaming.

02:21:09 So there is the general duty under section 18 to allow members of the public to see, hear the proceedings subject to what is reasonable.

02:21:24 And in my submission the principle of openness should favour audio streaming, certainly on the proceedings in this inquiry.

02:21:37 I cannot conceive of any circumstances in which we have a hearing in April which is not going to require audio streaming to reach more than a handful of people without discrimination.

02:21:57 Thank you sir.

02:22:00 In relation to, unless I can say further on, on streaming, audio streaming, those are my submissions.

02:22:08 My final submissions relate to the rule 10 questioning process and I will make very brief submissions here. Mr Menon, the Queen's Council is going to develop the points.

02:22:20 But a few brief issues.

02:22:25 One relates to the proposed 10 minutes delay at the end of a witness's evidence to allow for lawyers to consult with poor participants and pose questions.

02:22:41 There is a practical difficulty. There are people who are following proceedings already subject to a 10 minute delay, because by the time they've caught up with those who are watching the evidence live, the period of consultation is, is, is passed.

02:23:00 So we would ask that considerations given in the timing of hearings that breaks in the life of time to allow for those following remotely to, to, to feed in questions.

02:23:15 The final point relates to funding issues and we simply say that many of the difficulties that arise in the hearing process can be alleviated if a more generous approach is taken to the funding of legal representatives and counsel at the inquiry, it is often

02:23:41 issues to be addressed when people are there in person, very quickly and very efficiently, which are far harder to deal with when people are trying to follow matters remotely.

02:23:53 So we simply ask that that is a factor that is considered by the inquiry.

02:24:02 In relation to allowing an automatic period for non-police non-state poor participants to ask questions without the need to seek permission from user.

02:24:18 I confine my representations to Matt where matters genuinely arise out of the evidence, the oral evidence that is given at the end.

02:24:29 So something that is not anticipated completely out of the blue or where a follow up question comes to mind from something that this is stated that can't be anticipated in advance.

02:24:42 In my submission, those circumstances, non-state poor participants should be allowed the opportunity to ask follow up questions.

02:24:54 The need to seek permission and on occasion, explain the basis of asking why the question needs to be asked can often take longer than simply asking the question of the witness.

02:25:08 In my submission, it is appropriate to allow counsel representing non-police non-state poor participants to ask those questions, limited in that way.

02:25:23 It's not something which counsel would seek to abuse and I'm sure if they did, they will be put right very swiftly.

02:25:32 But it's simply a practical matter that allows for an efficient conduct of a hearing.

02:25:40 So in my submission, it would be appropriate to allow counsel to ask such questions without needing to ask permission in advance and counsel will confine those matters to things which genuinely arise.

02:25:59 Mr. Greenle, I acknowledge that the process adopted last time was somewhat clunky.

02:26:06 I gratefully acknowledge your proposition that you only wish to have this facility to ask questions at the end when it arises out of something that has occurred unexpectedly, evidence given of a kind that wasn't anticipated being the obvious example.

02:26:28 I think all of those paying an intelligent interest, having an intelligent interest in the hearing will realise if something has occurred that is a surprise.

02:26:38 So I would hope that if evidence is given which is not foreshadowed in the documents or in the witness statement produced beforehand, then I would realise that as much as you or others would.

02:27:00 And so it wouldn't take very long to say that came as a surprise to us.

02:27:05 I want to ask about it, please. I don't think that's going to take any great deal of time. Unlike the rather lengthy, lengthier explanations that were given for things which had not arisen by surprise last time.

02:27:21 I accept that in most occasions it can be done very quickly. There may be occasions where witness gives evidence with a core participant recognises the significance of because they have a greater understanding of matters pertaining to them, which can take a bit of explaining to do to those who don't have such direct interest in that situation.

02:27:49 And those circumstances which I suggest sometimes simply being allowed to ask the question and get the answer quicker than having to go through the explanation.

02:28:01 It is simply very much a practical and pragmatic issue. There is the more principal difficulty when, as may happen,

02:28:12 there is a need for a witness to be excluded when the explanation for a particular line of questioning is given. And that's on a purely logistical basis, given the setup of the inquiry at the moment would cause some disruption.

02:28:31 And so that is something which, Sarah, I would ask you to consider. And my overarching submission is that simply on a practical and logistical basis,

02:28:45 in some cases, counselling should be afforded the permission generally to ask questions of matters that are arising with the caveat that they will be short and discreet topics.

02:29:00 And of course, if there are more controversial issues that don't clearly fall within that, then they can be raised with you, sir.

02:29:13 I think we are dealing for phase two, at any rate, with a relatively minor practical problem.

02:29:22 I don't think either your suggestion or mine are going to add materially to difficulties. And given the need that I do ultimately have to keep control over things, I'm afraid that it's mine that's going to prevail.

02:29:38 But I acknowledge that there should be an opportunity to ask questions arising out of things that have occurred unexpectedly.

02:29:48 Sir, unless I can assist further, those are my submissions.

02:29:52 Thank you very much. That's extremely helpful. And I'm sorry we had a rather lengthy debate about practicalities at the start of it.

02:30:00 But I'm trying to get to the root of the difficult problems, as well as providing a route that has already, I think, largely been signalled by Mr. Barr to the easier ones.

02:30:13 Thank you, sir.

02:30:19 Now, who is next? It's Mr. Menon next, I think, is it not?

02:30:25 Yes. Can everybody hear me?

02:30:28 Yes, your head is slightly chopped off on the screen. I think you may be because I've got a bit of light coming in the top and it looks a bit odd. I'm happy to do it in that way if it's better.

02:30:40 I'm sorry about the light protruding at the top of the screen.

02:30:44 No, it lends a nice patina to the top of your head.

02:30:50 I'm grateful.

02:30:52 Good afternoon, sir. As you know,

02:30:58 I have submitted discrete submissions

02:31:02 in respect of my clients. Firstly, you should have initial submissions and further submissions on behalf of the clients that I represent together with Richard Parry and Russell Fraser.

02:31:15 Yes. And you should have submissions on behalf of the clients I represent together with Jane Deighton and Una Morris.

02:31:22 That's correct.

02:31:23 With your leave, I propose to start with the submissions that Mr. Parry and I have submitted.

02:31:29 Yes.

02:31:30 Thank you.

02:31:32 On the 19th of January of this year, the inquiry uploaded a letter onto its website from the Metropolitan Police Services Director of Legal Services.

02:31:45 We asked the inquiry why this letter of all the hundreds of letters and emails that the inquiry must receive from core participants had been selected for uploaded.

02:31:57 And we were told that the letter was uploaded because it essentially comprises submissions on behalf of the Metropolitan Police Service.

02:32:05 And consequently, its contents should be made publicly available on the inquiry's website, as opposed to circulated to core participants only.

02:32:15 Given the inquiry's decision that this letter is to be treated as part of the Metropolitan Police Services submissions, and the fact that we've not addressed its contents in our original submissions or our further submissions, we do so briefly now.

02:32:31 This letter, to put it as politely as I can, is an attempt to counter the allegations made by non-state core participants that the Metropolitan Police Service has obstructed the inquiry.

02:32:47 And to insist that on the contrary, the true position is that the Metropolitan Police Service is committed as an institution from top to bottom to assisting the inquiry to complete its valuable work as effectively and swiftly as possible.

02:33:03 A specific complaint is made in the letter of what was said in our opening statement, namely that the police have used every weapon in their arsenal and spared no expense to obfuscate, obstruct, undermine, and delay an open, transparent, and fearless public inquiry into undercover policing.

02:33:24 You have addressed this letter this morning, sir, in your introductory remarks and have effectively confirmed what the Metropolitan Police Service has asked you to do, namely that there is no basis for the allegation that the inquiry's work has been or is being obstructed by the Metropolitan Police Service.

02:33:45 I don't wish to go into the matter in any detail. It will not surprise you that we do not agree with that conclusion, but we don't wish to have any unseemly disagreement with you now, as this would serve no useful purpose.

02:34:01 Suffice to say that the reason that we revisit the letter at this stage is because the Metropolitan Police Service and other police corps participants, most notably the designated lawyer group, continue to suggest in their written submissions, wrongly we say, that it is the non-state corps participants who are responsible for the inquiry not being as inquisitorial as it should be.

02:34:29 We say nothing further from the truth is in fact the correct position. If the non-state corps participants are marginalized, as we say they have been, and prevented through their lawyers from participating effectively and meaningfully in the inquiry, if the state's obsession with secrecy is permitted to have a foothold in this inquiry at the expense of openness and transparency,

02:34:58 then it can hardly come as a surprise that there is at times an adversarial heir to the proceedings. It should never be forgotten in our submission that it is the non-state corps participants who are the victims in this inquiry of abuse of power by the state, in some cases with the most devastating of consequences.

02:35:21 The former undercover police officers with respect are not victims and should never be treated as such. Now we have addressed in our written submissions a number of discreet issues.

02:35:34 Council to the inquiry's note for today's hearing suggests that there is little point in pursuing most of those matters any further today and so we don't do so. Either a decision has already been made or we are encouraged to raise the matter in correspondence with solicitors to the inquiry, which we will continue to do as we have been doing from the outset.

02:35:59 However, there is one issue that I do wish to explore, sir, namely the Rule 10 issue and the inquiry's approach to Rule 10, notwithstanding the fact that you have just indicated to Mr. Greenhall at the end of his submissions on behalf of the wider non-state corps participant group that you have effectively already reached a decided view on the matter.

02:36:25 I think it would be wrong if I didn't at least articulate one more time, and it will be for the very last time, our position on this issue, notwithstanding that I think the matter is already an open and shut case.

02:36:39 There is no doubt that the Rule 10 issue is the most vexed and contentious of issues, not only at this directions hearing, but we would submit more generally, because more than any other issue, it goes to the very heart of whether or not you're going to allow the non-state corps participants to participate effectively and meaningfully in this inquiry.

02:37:08 We will of course continue to submit the inquiry's Rule 10 proformers on time, as we largely did during Tranche 1 Phase 1, despite not having nearly enough time with the hearing bundles.

02:37:23 However, I think it is important that I am blunt about this.

02:37:27 Submitting questions on behalf of our clients for somebody else to ask, as opposed to asking the questions ourselves, is never going to be satisfactory for our clients, and I suspect for many other non-state corps participants as well, and is never going to amount to effective and meaningful participation by the non-state corps participants in the inquiry.

02:37:55 Hence our application as a compromise measure, we thought, for automatic permission to question witnesses for up to 30 minutes.

02:38:05 Now, it's clear from paragraph 1 of Council to the Inquiry's note, and of course, given what you've already indicated this morning, that there are not only concerns about our proposal, but that a decided view has already been reached, but I proceed nevertheless.

02:38:26 The note reads as follows. It is important in this inquiry that Council to the Inquiry and the Chairman retain oversight of proposed lines of questioning so as to ensure that restriction orders are not undermined and that the proceedings are fair.

02:38:42 I'm afraid we reject the suggestion, if it is being made, that order, control, and due process would be undermined if you adopt our proposal.

02:38:54 On the contrary, in the long run, and I appreciate that this doesn't in particular apply to Tranche 1, Phase 2, because there are only 10 police officers due to give evidence, but in the long run, as we get into Tranche 2, Tranche 3, etc.,

02:39:11 it will save time in my respectful submission, and more importantly, it will improve relations between the non-state court participants in the inquiry, something that I assume that all concerned, and most importantly you, sir, would very much welcome.

02:39:28 So that's all I say in general terms about that for your consideration in case it may have any impact.

02:39:38 One more specific matter about this. As far as the submission made in writing by not only the Metropolitan Police Service, but by other police corps participants, repeated again this morning by Mr. Skelton, that the former undercover police officer, Joan Hillier, was ambushed during Tranche 1, Phase 1.

02:40:06 And your intervention, sir, during the submissions of the designated lawyer group this morning, that pre-planned last-minute ambushes are unacceptable.

02:40:16 I need to make it clear that our application for permission to question Joan Hillier was not a pre-planned last-minute ambush, if that is what is being suggested.

02:40:28 It would be inaccurate and unfair, with all due respect, to characterize what happened during Tranche 1, Phase 1 in such terms.

02:40:39 In other terms, we put both counsel to the inquiry and solicitor to the inquiry on notice the evening before we made our application, which was within hours of us being informed by a source about the intimate relationship between a former colleague of Ms. Hillier and a leading Vietnam Solidarity campaign activist.

02:41:04 We asked counsel to the inquiry to question Ms. Hillier about this matter. Counsel to the inquiry chose not to contact us to discuss the matter.

02:41:13 Counsel to the inquiry chose not to inform, as far as we are aware, the Metropolitan Police Service or the designated lawyer group about the matter.

02:41:24 Counsel to the inquiry chose not to question Ms. Hillier about the matter. We do not know if counsel to the inquiry put you, sir, on notice about this issue that we had raised in advance.

02:41:37 But in the circumstances, having listened to the questions that were asked of Ms. Hillier by counsel to the inquiry, we felt compelled in the circumstances to apply for permission under Rule 10 to ask Ms. Hillier about this matter.

02:41:52 We say it would have been professionally negligent of us not to make the application that we did.

02:41:59 And we also say that it would have been grossly unfair if you had not granted us permission to ask the questions that we did.

02:42:07 In short, we were right to make the application, and you were most certainly right to grant it.

02:42:14 In the circumstances, this was not on any sensible view and ambush, and we wholeheartedly reject any suggestion that it was.

02:42:25 Bearing all of that in mind, we hope that you will not use what happened in Tranche 1, Phase 1, and in particular what happened in relation to this particular application for permission to question a witness under Rule 10.

02:42:40 As some of the police corps participants unsurprisingly invite you to do, as a justification for clamping down and adopting an even more restrictive approach to Rule 10, even if you do refuse our application for automatic permission to question for up to 30 minutes, we ask you to approach future applications for permission to question under Rule 10, which will obviously have to be made on a witness-by-witness basis where deemed necessary by the court.

02:43:10 And we will also be able to address the questions that are raised by the advocates with greater openness and flexibility.

02:43:20 So that's all that I wish to address you upon orally as far as the submissions that Mr. Parry and I have made.

02:43:29 Unless there are any questions arising from that, may I turn then to the other submissions that we've made about indirect discrimination?

02:43:38 I would like to ask the members with you to express a point of view to give you the opportunity of responding.

02:43:46 You provided to the inquiry a fortnight or so ago, a little over a fortnight ago, a confidential explanation as to what has happened.

02:43:55 I am not going to preach your confidence.

02:43:58 Having read it and understood all that happened,

02:44:03 I am now more convinced than I was before your explanation that if such issues arise in the future,

02:44:13 the evidential basis for asking counsel to the inquiry to question must be provided to counsel to the inquiry.

02:44:25 That didn't happen.

02:44:27 Had counsel to the inquiry had the material which you provided to us now,

02:44:35 he would not have asked questions about it and I would not have asked him to do so.

02:44:43 So we understand the point you're making, but can I make it absolutely clear for the avoidance of doubt?

02:44:48 If counsel to the inquiry having received our email the night before setting out what we wish to ask the witness,

02:44:56 had contacted either Mr. Perry or myself and asked us what the basis of those assertions were,

02:45:04 we would have provided the full explanation.

02:45:07 No such approach was made.

02:45:09 I do find it difficult to understand what we were supposed to do in the circumstances when counsel to the inquiry simply ignored the issue.

02:45:19 We were driven in those circumstances to make the application we did.

02:45:23 I will answer your question directly.

02:45:28 Provide the material to him when you make your application.

02:45:32 We understand.

02:45:36 Again, I didn't intend to betray any confidences,

02:45:42 but what you told the inquiry in confidence,

02:45:51 I'm trying to say it in a manner that doesn't betray confidences, I won't say any more about it.

02:45:57 All I can say is that if the material that you provided to us two or three weeks ago was available to you then,

02:46:10 then you should have provided that to counsel to the inquiry when asking him to ask questions about it.

02:46:18 And if you had done, he would not have done so.

02:46:22 And I would not have asked him to do so.

02:46:25 I mean, I take the point you're making, but I don't know, I don't understand what the criticism is in the circumstances.

02:46:34 We're learning from experience.

02:46:40 The experience of that incident, I tried to explain how it would have been dealt with had the procedure that I wish to see adopted had been adopted.

02:46:54 There is really no alternative, but to that which I have suggested to, namely, if something like that happens in the future,

02:47:13 those who seek to have the issue explored must lay the evidence,

02:47:20 including things that fall far short of what would be treated as evidence in a court.

02:47:25 But the information, the evidence, the material, the basis for the questioning must be provided to counsel to the inquiry.

02:47:33 That's the biggest point and the only one that I want to make.

02:47:37 I'm grateful. And as far as the explanation that my instructing solicitor provided to solicitor the inquiry is concerned,

02:47:46 can I suggest that further discussions take place in relation to that between solicitor the inquiry and my instructing solicitor to try and reach an appropriate way forward?

02:48:00 If I can put it as generally as that.

02:48:03 Certainly, I don't in fact think that anything is to be gained by going over the history of this matter again.

02:48:15 It provided a useful template upon which to learn.

02:48:23 I don't think it's going to be fruitful to exchange emails or even to discuss what happened in that instance, unless it has a bearing on what may happen in the future.

02:48:36 Understood.

02:48:38 Do you agree with that or not?

02:48:39 Yes, I agree with that. Thank you.

02:48:43 Turning then, sir, to our other submissions.

02:48:49 Yes.

02:48:59 Sir, equality is fundamental to this inquiry.

02:49:04 It is not an option or an add on.

02:49:08 The importance of the inquiry not discriminating, both as a matter of law and as a matter of fact cannot be overstated.

02:49:17 For many months now, Jane Dytton, Una Morris and I have been raising concerns on behalf of those we represent, namely Audrey Adams, Nathan Adams, Richard Adams, Dwayne Brooks and Ken Livingston,

02:49:32 about the inquiry's decision to provide audio visual streaming only to those who attend the screaming venue and to you, sir, at your home.

02:49:42 We have submitted that this administrative arrangement, this operational activity, indirectly discriminates against various non-state core participants on the grounds of age, disability and or race.

02:49:57 Indirect discrimination is complex.

02:50:01 As Lady Hale put it in the leading Supreme Court case of ESOP and the Home Office, indirect discrimination is meant to avoid the rules and practices which are directed, which are not directed, excuse me, at or against people with a particular disadvantage, but have the effect of putting them at a disadvantage.

02:50:22 It is one form of trying to level the playing field.

02:50:27 Audrey Adams and Richard Adams are disabled and black.

02:50:32 Ken Livingston is 75 years old.

02:50:36 All three are at a greater risk of serious injury or death from COVID than those who do not share their protected characteristics.

02:50:46 Consequently, the inquiry's arrangements, which deny audio visual streaming to non-state core participants who do not attend the screening venue, puts them at a disadvantage when compared with non-state core participants who do not share their protected characteristics and are at lesser risk of serious injury or death from COVID, were the latter to attend the screening venue.

02:51:12 This in our submission is undoubtedly unjustifiable indirect discrimination on the grounds of age, disability and or race.

02:51:22 The provision of audio visual streaming only to those who attend the screening venue and to you, sir, is not a proportionate means of achieving a legitimate aim.

02:51:34 The right to privacy of some, of former undercover police officers, many of whom have the benefit of anonymity in some cases granted on, we submit, the most tenuous of grounds, long before COVID became a part of our daily lives, should never outweigh the right of victims of the secret state not to be discriminated against by a public inquiry on the grounds of age, disability and race.

02:52:04 For the avoidance of doubt, Audrey Adams, Richard Adams and Ken Livingston are not the only non-state core participants with the said protected characteristics.

02:52:15 They are not the only non-state core participants who have suffered less favorable treatment at the hands of the inquiry.

02:52:22 They are not the only non-state core participants who are disadvantaged by your decision about streaming.

02:52:30 There are many others.

02:52:34 So you have our written submissions which set out our position in considerable detail.

02:52:38 I do not intend this afternoon to repeat those submissions orally.

02:52:43 Please forgive me for interrupting you because we need to go over this with some care.

02:52:48 Let's get the history right first.

02:52:50 I was asked to set out the procedure that the inquiry would adopt to conduct the first part of its hearings.

02:53:04 I was asked at a time when it was obvious that there were going to be restrictions.

02:53:13 The non-state side urged upon me that there should be real-time hearings in a physical space with everybody attending.

02:53:26 They objected to alternatives proposed by the police side.

02:53:34 In what I thought was an acceptance by me of the basic non-state position,

02:53:41 I said that we should have something as near as possible to the ideal of an ordinary physical hearing with everybody attending in person.

02:53:56 I thought I was accepting a proposition advanced on behalf of the non-states in the light of the changed circumstances.

02:54:03 Then right at the last moment, the day before we were due to begin,

02:54:08 came suggestions that the proposal that had been in place by then for a month or two was unlawful.

02:54:19 That was not helpful.

02:54:21 We now have more time to discuss it than we're going to.

02:54:27 I don't want to go over old ground, but I think in the interest of fairness,

02:54:34 I have to say this.

02:54:36 We received the inquiry's second equality impact assessment a few days before the start of the T1P1 hearings.

02:54:50 That triggered in a very short space of time the submissions that you are referring to that were made not simply on behalf of the clients who Jane Deighton,

02:55:03 you and I represent, but in fact on behalf of all the non-state core participants,

02:55:10 raising concerns about the absence of audiovisual streaming to all non-state participants and inviting reconsideration of the restriction orders.

02:55:23 You responded quickly to that and explaining that there was too much going on at the time and you simply couldn't engage with the issue.

02:55:34 As you recall, there was further correspondence and discussion about that at the procedural hearing during the T1P1 hearings and subsequently.

02:55:48 I simply say that because I don't want to revisit that disagreement that existed.

02:55:54 We are now in a very different position.

02:55:57 We've had those hearings and today's directions hearing is intended to learn the lessons of what went wrong as far as the different core participants are submitting and to move forward to the next hearings.

02:56:11 And it's with that in mind that we are making these particular submissions about indirect discrimination in the hope that the same mistake can be avoided in subsequent evidential hearings.

02:56:26 And that's the spirit in which we would invite you to listen to what we have to say on the matter and make your decision subsequently.

02:56:36 Then we're at an idea on that.

02:56:40 But I think we must, in that event, given that we now do have time, go right back to basics.

02:56:50 The first issue that has to be addressed is whether or not I am providing a service or whether I fall under Section 29.

02:57:01 Six under the person performing a public function, which does not provide a service.

02:57:09 What do you have to say about that?

02:57:11 Well, can I approach it in this way?

02:57:13 I mean, in fact, I was coming to that very point, sir.

02:57:18 I've just been saying in Council to the Inquiries note that was uploaded yesterday onto the Inquiries website, paragraphs six to 10, this issue is raised.

02:57:30 And it was raised in this way, Council to the Inquiry queries or questions.

02:57:36 I either word I think will do whether your decision about streaming amounts as a matter of law to the provision of service for the purposes of Section 29 of the Equality Act or to the exercise of a judicial function, which would of course mean that Section 29 does not apply.

02:57:52 We have to go right back to the beginning and ask whether I am providing a service.

02:58:01 Yes, I'm a person performing a public function, which is not the provision of a service.

02:58:08 Yes. Well, our short answer to the question, and I of course wish to develop it.

02:58:13 Our short answer to the question is that your decision about streaming is the provision of a service as opposed to an exercise of a judicial function.

02:58:22 And therefore the Inquiries decision making as far as its operational activity is concerned is not exempt from the Equality Act.

02:58:32 That's our overriding submission.

02:58:35 And we wish to raise the following points in relation to that overriding submission.

02:58:44 Firstly, this.

02:58:47 We really have to start at the first point.

02:58:53 Am I in the first instance, covered by Section 29-6 or not?

02:59:01 No, so we're saying that your decision about streaming is a provision of a service.

02:59:07 You've answered two questions down the line.

02:59:10 The first question that has to be answered is whether or not I fall within Section 29-6.

02:59:16 Am I a person performing a public function, which is not the provision of a service?

02:59:24 It depends what decision or what service you're talking about.

02:59:31 Insofar as the restriction orders are concerned and the decisions that you made in respect of the officers who asked for anonymity, we accept that you were exercising a judicial function.

02:59:45 Insofar as your decision about streaming is concerned, which we say was an administrative arrangement in respect of operational activity, that we say was not an exercise of judicial function.

03:00:01 That was the provision of a service covered by Section 29 of the Equality Act.

03:00:07 I understand that submission, and I do not for one moment suggest that there is not a difference between a judicial function and an administrative function.

03:00:20 This is recognized within the court service, and it's one that I readily accept.

03:00:26 But I do want to get the starting point established.

03:00:31 In relation to conducting a public inquiry, am I a person exercising a public function?

03:00:44 The answer to that is yes, is it not?

03:00:48 Well, sir, we've had less than 24 hours to properly consider this.

03:00:53 You've made the submission. It's your submission.

03:00:58 I understand that.

03:01:00 It's therefore your obligation to think about the...

03:01:03 I understand that, and I was anticipating you saying that.

03:01:07 We do not suggest that there are not decisions that you make as chairman of a public inquiry that would not amount to the exercise of a judicial function.

03:01:16 We accept that.

03:01:18 And in particular, we accept that the restriction orders that you made, which include penal notices, do constitute decisions that amount to the exercise of a judicial function.

03:01:36 Therefore, I think it is implicit in that acceptance that you accept that the starting point is that I'm governed by Section 29-6.

03:01:47 Well, yes. I mean, as far as any judicial decisions you make, yes.

03:01:50 But the decision about streaming, in our respectful submission, is not part of the judicial function exercise, because it is an administrative decision about how the inquiry conducts its procedures and conducts its hearings.

03:02:15 There's an acceptance by the inquiry that falls within its public sector equality duty, hence the equality impact assessment of the inquiry, and therefore an acceptance that that particular decision, we say, implicit acceptance, that particular decision, is covered by the Equality Act, which means it must be the provision of the service.

03:02:38 And it must mean that the inquiry accepted that it was a provision of the service. Otherwise, why have an equality impact assessment in respect of that?

03:02:46 I think we are either at or getting close to being at a point of agreement on this.

03:03:01 You accept that in relation to some of my functions, I'm performing a judicial function.

03:03:11 You accept that I am governed by Section 29-6.

03:03:21 Section 29-6 imposes upon me a duty not to do anything that constitutes discrimination.

03:03:31 Yes.

03:03:32 So, in relation, let us say, for example, to the provision of a lift to a hearing venue, I am under an Equality Act duty to ensure that a disabled person can get access to the lift, which is most crude.

03:03:52 Yes.

03:03:55 We then come to the more difficult question, which I suggest we both think about over the adjournment and come back and deal with at two or five to two, which is whether or not the

03:04:16 decision to provide audio transmission or audiovisual transmission of the evidence being given to the hearing is the provision of a service or not?

03:04:33 Yes.

03:04:36 I don't think that's quite a straightforward question, as you assert.

03:04:41 Can I be clear? It's not straightforward at all. I entirely accept it's not straightforward.

03:04:46 Even if it is, it's subject to Section 18, one of the Enquiries Act.

03:04:52 Yes.

03:05:00 At present, it seems to me that if I were simply dealing with it as the provision of administrative service, Section 18-1 provides an answer to the video side of the equation, because it would breach the restriction order on the transmission of an image.

03:05:29 This is precisely why in the submissions to which you alluded that were submitted just before the start of the T1P1 hearings, we raised the issue of restriction orders, because ultimately there has to be some engagement with those restriction orders in order to resolve this issue.

03:05:51 One of the matters that you raised with Mr. Greenhole not long ago in relation to this was the question of what will have to happen if restriction orders have to be revisited.

03:06:06 Our response to that in brief would be this, that it's not a question of having to start all over again with the restriction orders.

03:06:15 As far as T1P2 is concerned, there are 10 undercover police officers who are due to give evidence in T1P2.

03:06:26 All 10 of them have been granted anonymity and are the subject of restriction orders on privacy grounds.

03:06:34 There will be no need in our respectful submission to delay the T1P2 hearings.

03:06:40 There's plenty of time between now and April to resolve this issue.

03:06:45 If you were to order audio visual streaming, as we invite you to do, the 10 officers concerned and their legal representatives can be given, say, 28 days to update the inquiry in respect of any changed personal circumstances that may arise.

03:07:08 If there are substantial changes, there may not be.

03:07:11 That would leave ample time for others to make representations and for you to make a decision as to whether the restriction orders that you made pre-COVID many years ago,

03:07:26 when balanced with the need of the inquiry not to discriminate on the grounds of disability, age or race, should require a change in respect of the restriction orders.

03:07:40 And that can easily be done in the next two months with respect.

03:07:44 That is a, is or would be a judicial decision and therefore would not be covered by the Equality Act.

03:07:55 Yes, I mean, if you, the decision, if you were not to change the restriction order in respect of a particular officer, yes, we accept that that would be the exercise of a judicial function and could not be challenged under the Equality Act.

03:08:11 Having said that, sir, we have no doubt that you would be extremely keen to ensure that even if the Equality Act did not apply to a particular decision that you had to make, that you would not wish to discriminate on the grounds of disability, age or race as a matter of fact, even if the Equality Act did not in fact apply to that decision.

03:08:38 I mean, it doesn't, it doesn't, it's not the end of the matter. And, and Council of the Inquiry has accepted that at paragraph nine of their notes submitted yesterday, where they say that even if Section 29 does not apply to a particular decision, the adverse impact of the pandemic on the ability of those who would otherwise be protected by the Equality Act to attend hearings remains a relevant factor to be taken into account under the Equality Act.

03:09:07 And that is a very important point to take into account under ordinary decision making principles. And you, as I'm sure you appreciate, under Section 17.3 of the Inquiries Act have an overriding duty to act with fairness when making any decision as to the procedure and conduct of the inquiry.

03:09:26 There's still a live issue here, we submit, even if you were to take a different view as to your decision about streaming.

03:09:38 The answer is there isn't. These are issues that have been decided. Granted, they have different consequences now, but they are not issues that I am obliged to reopen.

03:09:51 And I'm not minded to, both for practical reasons, and because it will inevitably cause upset to those from whom I wish to obtain evidence, which is my primary function.

03:10:06 But sir, if the consequence of not revisiting the restriction orders is that you are indirectly discriminating against certain non-state core participants, then surely the balancing exercise requires you to revisit those restriction orders as opposed to indirectly discriminate.

03:10:26 I mean, surely in those circumstances, the fact that certain witnesses may be upset, or the fact that the Metropolitan Police Service or the designated lawyer groups may challenge any decision that you make, should not be a factor that should influence your decision.

03:10:44 Ultimately, you need to do the right thing, and the right thing here is not to indirectly discriminate against anybody, even if it means upsetting the odd former undercover police officer.

03:10:56 Those restriction orders can be revisited. Of course you're not obliged to revisit them. Of course we accept that.

03:11:03 But we ask you to revisit them, because we are today living in very different circumstances than when those orders were made. And there are fresh legal issues that now need to be considered and thrown into the balance, particularly where we're dealing with restriction orders that have been made solely on privacy grounds as opposed to on security grounds.

03:11:26 I am not minded to revisit the decisions. We need to see what the consequences of that is at two o'clock.

03:11:33 I'm grateful. Thank you.

03:11:47 Thank you everyone. We will now take a break for lunch and we'll return at 2pm. Thank you.

03:12:47 Thank you.