Hindsight
In the course of writing Volume 1, I have applied intense scrutiny to actions, events and decisions. This has been both appropriate and necessary. It has enabled me to have as full an understanding as is possible.
Volume 1 contains a number of criticisms of organisations and individuals. These have been expressed in different ways, including concluding that those criticised ‘should’ have acted differently, that they failed to act and that particular actions were inadequate or insufficient.
I am obliged to act fairly and I have sought to achieve that. Consequently, when making those criticisms I have been conscious of the importance of not making those judgements based upon all the information which is now known, but by reference to what I consider those criticised did know or should have known at the time. I have particularly sought to exclude from my assessment the knowledge we now have about what SA was intending to do.
While I have taken into account what steps have been taken since, I have used this information to improve my understanding of what was, or may have been, possible to do before the Attack. Where changes would not have happened but for the Attack, I have taken this into account.
In taking this approach, I have had regard for the standards and practises of 2017. However, as is plain from what I say in the course of Volume 1, I do not consider these to be determinative. It may be that many of those concerned in putting on events at the time underestimated the risk of a terrorist attack and/or failed to put in place sufficient mitigating measures. Looking back now at the practices used when the Attack took place does not mean that no criticism can attach if they were not as effective as they should have been.
I consider that in making recommendations for the future it is necessary for me to use hindsight. I need to use my understanding about what happened to make sure the mistakes that we now know about are not repeated, that security protections are improved and planning for terrorist attacks is more firmly in mind. The use of hindsight is a powerful tool to ensure that lessons are learned.
The Inquiry cannot make a finding of civil or criminal liability. That is the role of different legal processes. That limitation does not mean that the Inquiry is inhibited from making findings of fact or recommendations, even if liability may be inferred from them. This makes it important for me to explain the standard of proof, or the legal test, that I have applied when making such findings. This is something that many other public inquiries have considered.
In deciding what standard of proof I should apply when determining factual issues, I have decided to adopt a variable and flexible approach similar to that adopted by Sir Martin Moore-Bick in the Grenfell Tower Inquiry Phase 1 Report.913 This approach has been used in many other inquiries. It was taken in the Anthony Grainger Inquiry by His Honour Judge Teague QC.914
Very many of the facts cited in Volume 1 were not the subject of challenge and were incontrovertibly established by the evidence I heard. It has been necessary for me to resolve some issues of fact. Unless I expressly say so, findings of fact have been made using the civil standard of proof, the balance of probabilities.
There are many findings in Volume 1 that I make which are not subject to a standard of proof at all. They are judgements that I have made based on the facts I have found.
Information taken into account
In writing Volume 1, I have considered carefully all the relevant evidence and submissions that I have heard and read. That has included the live witness evidence, witness evidence that has been read during the Inquiry, other documents and other material that has been put into evidence during the Inquiry. It included the opening and closing statements, both written and oral. All of the information I have considered and had regard to is available on the Inquiry’s website.
As part of the preparation of Volume 1, I have considered the responses provided by all those who were sent warning letters by the Inquiry under Rule 13 of the Inquiry Rules 2006 in March and April 2021. Having reviewed the responses, I reconsidered the evidence on which a particular proposed criticism was based and, where appropriate, modified my provisional conclusions in light of the responses I received.
I have not, however, taken into account fresh evidence or new arguments that were provided in warning letter responses and which could have been, but were not, put forward during the Inquiry’s evidence hearings or in written and oral submissions. I have adopted that approach because it is not the purpose of Rule 13 to provide those who may be criticised with an opportunity to re-open matters in order to justify their conduct or to advance submissions that could have been made openly, on notice to the Inquiry and other Core Participants and subject to submissions but were not. Although a public inquiry is an investigative, rather than an adversarial, process, which to some degree must always be open to new insights, there must be a degree of finality if the process is to reach a conclusion within a reasonable time. Rule 13(1)(b) of the Inquiry Rules 2006 recognises that by providing an opportunity to respond to criticism based on the material already before the Inquiry. Advancing fresh evidence or new arguments in response to warning letters is inconsistent with the need for finality and can give rise to unfairness.