Grenfell contractors have as good as got their ‘get out’ over evidence they give to the Inquiry being used against them in criminal proceedings.
But inquiry chair Sir Martin Moore-Bick acknowledges that the breadth of privilege applied for poses “particular problems” for the Inquiry given the broad range of offences with which many of the witnesses might be charged.
Sir Martin has, however, asked the Attorney General for a pledge that evidence given by corporate witnesses won’t be used prosecute them.
In light of the Ruling, the inquiry has confirmed hearings will not resume until later this month.
Approval of the application by the Attorney General does not grant anyone immunity from prosecution, nor does it apply to any statements or documents already in the possession of the Inquiry.
It also does not prevent the prosecuting authorities from making use of answers given by one witness in furtherance of proceedings against another.
Lawyers for corporate witnesses filed the application claiming their clients had ‘legal right’ of privilege against self-incrimination.
The inquiry confirmed Sir Martin has written to Attorney General Geoffrey Cox QC requesting an undertaking which will stop any evidence given in person during the inquiry hearings (by those involved in the Tower’s refurbishment) being used against them in criminal proceedings.
Without this guarantee, many corporate witnesses had threatened to stay silent by claiming the legal right of privilege against self-incrimination.
The Ruling outlines the asked for undertaking in the following terms:.
- No oral evidence given by a natural or legal person before the Inquiry in Modules 1, 2 and 3 will be used in evidence against that person in any criminal proceedings or for the purpose of deciding whether to bring such proceedings
- Witnesses from firms involved in the fitting of flammable materials had been due to be cross-examined, but they submitted a last-minute legal bid seeking an attorney general-backed pledge
The application is strongly opposed by legal teams representing the bereaved and survivors and has been branded a “mockery of justice”.
In filing the application, Jonathan Laidlaw QC made it clear to the inquiry that in the absence of an undertaking, those whose interests he represented would be likely to claim privilege against self-incrimination in response to any question which touched on the way in which they performed their functions in relation to:
- The design of the refurbishment
- The choice of materials used
- The way in which the work was carried out
In releasing his Ruling, Sir Martin concedes: “It now appears likely that others who were involved in the refurbishment are likely to adopt a similar position”.
Sir Martin cites case precedent in reaching his Ruling, while acknowledging the privilege has been interpreted by the courts very widely – with its breadth posing particular problems for the Inquiry, given the broad range of offences with which many of the witnesses might be charged.
These range from gross negligence manslaughter at one and extreme to health and safety and regulatory offences.
Lawyers advising individual witnesses would be bound to inform them of the existence and scope of the privilege against self-incrimination and to advise them to invoke it rather than risk exposing themselves to a risk of prosecution.
As a result, Sir Martin accepts that most, if not all, of them, would be likely to claim privilege rather than answer questions about their involvement in the refurbishment of the tower.
The Metropolitan Police, conducting the criminal investigation, took a neural view of the application but Royal borough of Kensington & Chelsea (RBKC) opposed it saying it would “encourage all its present and former employees to give evidence openly without claiming privilege”.
But the Ruling reveals that the Building Control officer at RBKC who was responsible for overseeing the refurbishment’s compliance with the Building Regulations supported the application and indicated that without an undertaking he would not be willing to answer some questions.
The application was vigorously opposed by QCs representing bereaved, survivors and residents.
Arguments made against included the inference that could be drawn from available statements and documents should witnesses refuse to answer questions.
Sir Martin said that if the inquiry was adversarial proceedings there would be some force in that argument.
“These are not adversarial proceedings, the task of the Inquiry is to investigate as fully as it can the matters covered by its Terms of Reference.
“That includes investigating the reasons why people did or did not act in a particular way so that the public can understand why events took the course they did”, he said.
In his submission to the Attorney General, Sir Martin said it would not be possible for the inquiry properly to fulfil its Terms of Reference if witnesses do not have an assurance that the answers they give to questions will not be used against them criminal proceedings.
But Sir Martin stressed that – at this stage – the undertaking would apply to evidence to be given in Modules 1, 2 and 3 of the inquiry’s second phase, with investigations into the matters to be considered in later Modules not yet advanced enough to consider issues of self-incrimination.