Ruling on application for further evidence from Witness J and T/ACC Scally (2nd March 2022)

1. At the end of the closed hearing and in accordance with the procedure which had been agreed the Inquiry made public a document entitled ‘Inquiry Legal Team’s Gist of Closed Hearings’. The aim of that document was to put into the public domain those parts of the evidence given in the closed hearings which, after careful consideration, it was decided need not be covered by the Restriction Order. After the publication of the gist, applications have been made by the family Core Participants (CPs) to recall Witness J and T/ACC Scally to answer further questions arising from it. That is the primary application, but alternatively it has been suggested that these witnesses could be asked to answer questions in writing.

   Discussion

2. In deciding the best way to resolve this application I have had foremost in my mind three principles. First, applying the principle of open justice and in accordance with s.18 of the Inquiries Act 2005, as much as possible should be disclosed into public. Second, as provided for by s.19 of the Inquiries Act 2005, the Inquiry should not endanger national security by releasing into public information which would assist terrorists. Third, in accordance with s.17(3) of the Inquiries Act 2005, my decision should be fair to everyone.

3. I have considered all the questions that have been submitted. I have heard arguments on behalf of family CPs and considered open and closed arguments from the Security Service and Counter Terrorism Policing North West (CTPNW).

4. This process has come right at the end of the Inquiry’s oral evidence hearings and shortly before closing statements will be made on three chapters of the Inquiry’s evidence, including the issue of preventability. It is important that all the information which can be disclosed is disclosed, so as to ensure that those submissions are as focussed and helpful to me as they can be.

5. I am very concerned, as I indicated during the course of argument, about a hearing taking place where the response to most of the questions from the witnesses is that they are unable to answer for reasons of national security. That would be deeply upsetting for the bereaved families, unsatisfactory for the witnesses and would frustrate the process, as it would be of no assistance to me.

6. The application is made in the following circumstances.

7. First a process was undertaken by the Security Service and CTPNW to prepare open witness statements. That process was supervised by the Inquiry Legal Team in the light of its knowledge of the PII application. Those witness statements were disclosed to CPs.

8. Second, Witness J and T/ACC Scally were then called to give oral evidence in open. While I recognise that some may have found this an unsatisfactory experience, it successfully put into the public domain the content of the witness statements and permitted for follow up questioning which elicited further answers.

9. Third, following the open oral evidence of Witness J and T/ACC Scally, the Inquiry undertook a substantial closed hearing, where matters were investigated in great depth and in a very probing manner by Counsel to the Inquiry (CTI). At the end of that, another intense procedure took place of establishing what could be broken out into public through a gist. The aim of the Inquiry Legal Team in preparing that gist was to ensure that everything that could be put into public without endangering national security would be.

10. Fourth, two witnesses who participated in the closed hearings, former DCI Morris and T/DI Costello, gave open oral evidence to the extent they could about one aspect of that which the Inquiry investigated in detail in closed. Their evidence was accompanied by disclosure of transcripts of those parts of the evidence which they gave in closed, but which could be broken out into open.

11. In my judgment the process which has been adopted has been both robust and flexible. It has had, as its central driving factor my strong determination to ensure that everything which can safely be known publicly is broken out into the public domain.

12. It follows that in many, if not most cases, either witness, if he returns, will not be able to answer further questions, given the strong focus there has been on putting into open as much as possible.

13. I recognise that the gist, while giving a significant amount of information, has raised a number of further questions in the minds of those who have been following the Inquiry. I shall answer as many of those questions as I can in Volume 3 of my open Report. I well understand the desire of the bereaved families to have those questions asked and answered, but everyone must appreciate that if answers could have been given to those questions without damaging national security, they most likely would already have been provided.

14. In providing the opportunity for further questions to be posed, I recognised that the legal teams representing the family CPs might be able to produce questions which can be answered, which had not been considered in the closed hearing. In doing so, I also recognised that they were able to take instructions from the family CPs in relation to issues which were important to them. I, therefore, gave them the opportunity to do so. I also recognise that some of the questions are focussed on providing support for submissions that the family CPs may wish to make on preventability.

    Primary application: oral evidence

15. I have the advantage of knowing the material that justified making the Restriction Orders and I am able to see where the questions cannot be answered without damaging national security. I further consider that some of the contents of the ‘questions’ are comments which can be made more effectively as submissions, which I will consider with care.

16. I wish this to be as forensic an exercise as possible. While I am grateful for the time and care which has been given to the drafting of the question, in my view, providing too much context and comment in the questions will make them more difficult to answer.

17. The questions of the family CPs have necessarily been drafted in something of a vacuum. They are phrased in understandable terms, but I have concluded that they are likely to generate more information if focussed more narrowly. My greater knowledge enables me to do this.

18. Further, the traditional back-and-forth of oral questioning will not have its traditional advantages in this situation. What is under consideration is an extremely limited area for further material to be adduced into open. Great care will need to go into formulating the answer. Given how narrow the scope for permissible answers is, in my judgment follow up questions are overwhelmingly likely not to be capable of immediate, if any, answer.

19. Accordingly, I have concluded that Witness J and T/ACC Scally should not be recalled to give oral evidence. In reaching this conclusion I have taken into consideration the matters that I have mentioned above.

    Secondary application: written evidence

20. With the assistance of CTI I have reduced the length of questions to simple enquiries which I consider may be capable of being answered in open. Those answering them have the benefit of reading the context, provided by the family CPs, in which they have been composed.

21. I have not included questions which I know cannot be answered for national security considerations. I have focussed the questions on what are capable of being important questions for the Inquiry in the light of the wider knowledge I have. I already have a good idea from the closed hearing where the most intense scrutiny should be directed.

22. I have only included those questions which I believe can be answered without damaging national security. I will permit the Security Service to make submissions if they consider that answering the questions would damage national security. I do that because the Supreme Court has directed us that we must pay close attention to the submissions of the Security Service on national security as they are the experts. I shall listen to what they say, but I shall be the final arbiter of whether national security will be damaged by answering the questions.

23. Accordingly, I accede to the application that further questions are posed. The questions which have been prepared are based on those provided by the family CPs. The questions are set out at Appendix 1.

    Further position statement

24. Within those matters raised by the family CPs are a number a questions which drive at identifying what the Security Service and CTPNW’s corporate position on certain topics is. In my view all CPs are entitled to know what the corporate position is on a number of these matters. This will enable them to know what is in issue and where to direct their own closing statements.

25. However, these are not matters which necessarily have to be dealt with by Witness J or T/ACC Scally in a witness statement. At Appendix 2 I have listed those matters which I direct the Security Service and CTPNW should address by way of short further position statements. It may be that the Security Service and CTPNW intend to deal with these matters in their written open submissions in any event.

    Concluding remarks

26. The witness statements provided in response to the questions at Appendix 1 will be published on the Inquiry’s website. As such, they are formally received into evidence by the Inquiry. They can be referred to in closing statements and will be available to the press and the wider public to consider.

27. Given that oral closing statements are due to be made on 14th to 16th March 2022, I direct that the Witness J and T/ACC Scally submit witness statements responding to the questions by 1pm on 11th March 2022. This will permit comment to be made on the content by CPs during their oral closing statements.

28. I further direct that the short further position statements are submitted by the same time and date.

29. Any argument by the Security Service and/or CTPNW to the effect that no answer can properly be given to the matters in Appendix 1 and/or Appendix 2 is to be provided in writing by 1pm on 4th March 2022.

30. Finally, I am extremely grateful for the continued cooperation from all CPs. I recognise the thought and effort which has been put into the submissions and draft questions I received under considerable pressure of time. As I stated above, the further documents I have directed to be produced do not mark the end of my efforts to ensure that everything that can be publicly known will be publicly known. When I produce Volume 3 of my Report I will again revisit this issue with a view to breaking out what further material I can.

Sir John Saunders
2 March 2022