During the Inquiry, I made use of both civil enforcement and criminal prosecution powers under section 35 and section 36 of the Inquiries Act 2005 (the 2005 Act). My experience of using both has led me to conclude that there is room for improving both the section 35 and the section 36 processes.
In order to illustrate the basis for doing so, it is necessary for me to say something about each.
The 2005 Act provides a scheme by which those with relevant information can be required to provide it. Under Rule 9 of the Inquiry Rules 2006 (the 2006 Rules), a formal request in writing can be made for material from those who hold it. This can also include a request for witness statements.A formal request under Rule 9 is often referred to as a ‘Rule 9 request’.
There is a power to compel co‑operation by issuing a notice under section 21 of the 2005 Act.The explanatory note to section 21 states that there are usually three situations in which section 21 notices are issued. First, when a person is unwilling to comply with a request. Second, when a person is willing to comply with a request but is worried about the consequences of co‑operation. Third, when a person is unable to comply because co‑operation is otherwise prevented by a statutory prohibition.
A section 21 notice will apply to any individual or organisation in the UK, but not beyond.
I am aware that other inquiries have used section 21 as the means by which material is obtained. The approach I took was first to make a Rule 9 request. I only issued a section 21 notice when there was a lack of engagement or a refusal to comply voluntarily.
Section 21 notice
The powers under section 21 permit the Chairman of an inquiry to take any of a number of steps. Under section 21(1), a Chairman may issue a notice requiring a person to attend, at a time and a place stated in the notice, in order to: give evidence; produce any documents in their custody or control; or produce any other thing in their custody or control. Under section 21(2), a Chairman may issue a notice requiring a person to: provide a witness statement; provide any documents in their custody or control; or produce any other thing in their custody or control. Such notices are typically referred to as a ‘section 21 notice’.
The notice must explain what the consequences of non‑compliance are. The 2005 Act also makes provision under section 21(4) for a mechanism by which a person can claim that s/he cannot comply or that it is unreasonable to require him/her to comply.
A person cannot be compelled to comply with a section 21 notice if they could not be required to give, produce or provide the evidence or document in civil proceedings. This means, for example, that provision of materials subject to legal professional privilege, parliamentary privilege or public interest immunity cannot be compelled by a section 21 notice. It also means that a person cannot be compelled to provide information or materials if to do so would tend to incriminate them.
In the event a person does not comply with a section 21 notice, they can be made the subject of enforcement action under section 36 of the 2005 Act. This permits the Chairman to certify to the High Court that there has been a failure to comply with the requirements of a section 21 notice or a threat to do so.
Having considered the matter, the High Court can make such orders by way of enforcement as it could make if the matter had arisen in proceedings before the High Court. In practice, this will mean that the High Court is empowered to issue a witness summons or make such other order the breach of which would be treated as a contempt of court.
Under section 35 of the 2005 Act, it is a criminal offence to fail to comply with a section 21 notice without reasonable excuse. Only a Chairman may institute proceedings alleging a breach of a section 21 notice.
Any person convicted of an offence under section 35 is liable to a fine and/or imprisonment of up to 51 weeks. It is a ‘summary only offence’. This means that it can only be tried in the Magistrates’ Court.
The experience of the Inquiry
Almost every Rule 9 request was complied with by those who received one. Generally speaking, there was a very high degree of co‑operation from those with whom the Inquiry interacted. However, there was not universal co‑operation.
Throughout the course of the Inquiry, I issued 15 section 21 notices. Three of those were sent to material providers to disclose material to the Inquiry. The material was subsequently provided. I issued 12 section 21 notices to individuals to require them to provide a witness statement or to give oral evidence. Some of these resulted in compliance from the witness. There is no need for me to say anything further regarding this process or those who complied in such circumstances. They were told they must comply and they did.
However, there were occasions on which I issued section 21 notices that did not result in compliance. I shall consider the brief circumstances of each of these as they are examples of the operation of the existing statutory scheme.
Abdalraouf Abdallah was serving a prison sentence for terrorism offences during the period of the Inquiry’s oral evidence hearings. As I found in Part 22, he did not play a part in the bombing plot, but he was a significant radicalising influence on SA.
The first step I took was to seek to obtain a witness statement from Abdalraouf Abdallah. On 14th May 2020, Abdalraouf Abdallah’s solicitors were informed of my intention to seek a statement from him. In the course of subsequent correspondence, it was indicated on Abdalraouf Abdallah’s behalf that he did not wish to attend an interview or provide a witness statement.
First section 21 notice
On 9th June 2020, I issued a section 21 notice requiring Abdalraouf Abdallah to attend a recorded interview with members of the Inquiry Legal Team, with a view to the content of the interview being reduced to writing. I took the view that this was the best way to ensure that all of Abdalraouf Abdallah’s account was committed to writing. This would enable an informed decision to be made about whether there was a need to call him to give oral evidence.
No application to set aside this section 21 notice was made.
Abdalraouf Abdallah attended the interview on 26th June 2020. In the course of the interview, he refused to answer questions. He cited the privilege against self‑incrimination as the basis for his refusal. As I have said at paragraph 25.27, the privilege against self‑incrimination is available to witnesses in proceedings under the Inquiries Act 2005. As a result of his refusal to answer questions, no witness statement could be produced.
I required an explanation for the claim of privilege against self‑incrimination. Having considered the response I received, I was not satisfied that Abdalraouf Abdallah’s privilege against self‑incrimination was engaged, certainly in respect of all the matters for which it was asserted. On 5th October 2020, Abdalraouf Abdallah was notified that I would require him to give evidence in November 2020.
Second section 21 notice
On 12th October 2020, I issued a second section 21 notice requiring Abdalraouf Abdallah to give evidence on 19th November 2020. My intention was to call him during November 2020 because, during this period in the oral evidence, I anticipated focusing on events in early 2017 regarding the background to the Attack. SA visited Abdalraouf Abdallah in prison in January 2017 and had planned to go again in March 2017.
On 27th October 2020, an application by Abdalraouf Abdallah to set aside the second section 21 notice was received by the Inquiry. The basis of the application included raising concerns about his health. As a result of my investigation into this, I decided it was not appropriate to call him when originally scheduled. Consequently, I decided not to seek to enforce the second section 21 notice.
My investigation into whether or not it was reasonable to call Abdalraouf Abdallah continued into 2021.
Third section 21 notice
In October 2021, the oral evidence was focused on the radicalisation of SA. Abdalraouf Abdallah had relevant evidence to give on this issue. Consequently, I issued a third section 21 notice, requiring him to give evidence on 20th October 2021.
On 14th October 2021, I heard an application to set aside the third section 21 notice. Following argument, I refused it.
On 20th October 2021, Abdalraouf Abdallah attended the Inquiry. He did not give evidence on that occasion, raising a complaint about the disclosure he had received. However, I received reassurance both from Abdalraouf Abdallah and his lawyers that, following disclosure of particular material, he was prepared to give evidence. Accordingly, I adjourned the hearing of his evidence to November 2021 to address this issue.
Evidence on 25th November 2021
On 25th November 2021, Abdalraouf Abdallah attended the Inquiry. He gave evidence over the course of the day. He answered every question asked of him. In writing this Volume of my Report, I have taken into account the oral evidence he gave.
In the end, it was not necessary to certify any potential breach of any of Abdalraouf Abdallah’s section 21 notices to the High Court. There were a number of challenges that needed to be overcome to secure his evidence. I had the benefit of a lengthy time period for the oral evidence hearings, during which it was possible to rearrange the timing of his evidence and litigate the challenges to the section 21 notices.
As it transpired, none of the reasons given for Abdalraouf Abdallah not to answer questions turned out to be good or sufficient ones. Insisting that he answered questions was the correct course. I have no doubt that the potential for prosecution and/or High Court proceedings helped to produce the co‑operation that was ultimately given.
Ahmed Taghdi was an associate of SA’s. As I explained in Part 23, he was involved in the purchase of the Nissan Micra on 13th April 2017. This car was used to store the triacetone triperoxide (TATP) while SA was in Libya in the late spring of 2017. Ahmed Taghdi also had relevant evidence to give about SA’s background. As a result of his involvement in the vehicle purchase, I decided to call him to give evidence in December 2020, when the time period of early 2017 and the events leading up to the Attack were under consideration.
First section 21 notice
On 7th December 2020, I issued a section 21 notice requiring Ahmed Taghdi to give evidence on 16th December 2020. No application was made to set aside the notice. However, on 15th December 2020, his lawyers wrote to me stating that Ahmed Taghdi would not attend to answer the section 21 notice on 16th December 2020, or at all. Concerns held by Ahmed Taghdi about his safety and his health were cited, but no evidence in support of those concerns was provided. In the result, Ahmed Taghdi did not attend on 16th December 2020.
Second section 21 notice
I rescheduled Ahmed Taghdi’s evidence for 21st October 2021 during the period when I was considering the radicalisation of SA. On 13th September 2021, I issued a second section 21 notice requiring Ahmed Taghdi’s attendance on 21st October 2021. No application was made to set the second section 21 notice aside.
Concurrent to the above, I made a Rule 9 request of Ahmed Taghdi, seeking a witness statement from him by 27th September 2021.
On 29th September 2021, Ahmed Taghdi’s representatives informed the Solicitor to the Inquiry that Ahmed Taghdi would not be providing a witness statement or attending the hearing on 21st October 2021.
High Court enforcement
By stating that this was his intention, Ahmed Taghdi threatened to fail to comply with the second section 21 notice within the meaning of section 36. On 1st October 2021, I certified the failure to comply with the second section 21 notice to the High Court.
On Friday 15th October 2021, Mr Justice Jacobs granted the order I sought, namely that Ahmed Taghdi should attend the Inquiry to give evidence on 21st October 2021 at 09:00. Mr Justice Jacobs also ordered, in accordance with my application, that, in the event that Ahmed Taghdi failed to comply with the attendance requirement, a warrant for his arrest, returnable to the Inquiry hearing room, would be issued.
On Monday 18th October 2021, Operation Manteline officers notified the Solicitor to the Inquiry that GMP had become aware that Ahmed Taghdi was shortly to leave the country from Manchester Airport. On this basis, I made an emergency application to Mr Justice Jacobs for a bench warrant for the immediate arrest of Ahmed Taghdi. This was granted. Ahmed Taghdi was arrested at Manchester Airport later that morning.
Late in the afternoon of 18th October 2021, Ahmed Taghdi was produced in custody before Mr Justice Fordham. Upon my application, Mr Justice Fordham issued a warrant of detention for Ahmed Taghdi. The effect of the warrant of detention was that Ahmed Taghdi was detained in custody until his scheduled appearance before the Inquiry on 21st October 2021.
Evidence on 21st October 2021
On 21st October 2021, Ahmed Taghdi was produced to the Inquiry hearing room. He gave evidence, answering every question asked of him. In writing this Volume of my Report, I have taken into account the oral evidence he gave.
As I set out in Part 22, Ismail Abedi was the older brother of SA and HA. He had relevant evidence to give to the Inquiry in relation to SA’s background and upbringing. His DNA was also discovered on a movable item recovered by Operation Manteline from the Nissan Micra.
On 20th May 2020, Ismail Abedi was sent a Rule 9 request. He did not provide a witness statement.
First section 21 notice
On 23rd July 2020, I issued a section 21 notice, requiring Ismail Abedi to provide a witness statement. In response, on 12th August 2020, he provided an unsigned document, which failed to engage with the matters identified in the Rule 9 request. He went on to assert the privilege against self‑incrimination.
Correspondence followed with the Solicitor to the Inquiry challenging the blanket claim of privilege against self‑incrimination. A further opportunity to comply with the section 21 notice was provided. Ismail Abedi maintained that he would not be providing a witness statement.
Attorney General’s undertaking
Taking the same approach as I did with Abdalraouf Abdallah, I concluded that it was not necessary to seek to enforce the first section 21 notice, on the basis that I could require him to give evidence. In accordance with this intention, on 9th April 2021 Ismail Abedi was notified that he would be required to give evidence.
Ismail Abedi’s response was to maintain his blanket assertion of the privilege against self‑incrimination. He also raised the possibility of an application to the Attorney General for an undertaking that he would not be prosecuted for any answer he gave.
On 10th April 2021, Ismail Abedi made an application seeking to persuade me to apply to the Attorney General for an undertaking that he would not be prosecuted on the basis of answers he might give to the Inquiry. A hearing took place to hear argument on this issue on 19th May 2021. On 10th June 2021, I refused to make the application to the Attorney General.
Second section 21 notice
On 23rd July 2021, I issued a second section 21 notice requiring Ismail Abedi to give evidence on 21st October 2021. Ismail Abedi was given until 16th August 2021 to apply to set aside the second section 21 notice. No application was made.
On Saturday 28th August 2021, Ismail Abedi was the subject of a stop by the police at Manchester Airport under Schedule 7 of the Terrorism Act 2000. He told the police he was intending to travel to Turkey, but return to the UK in mid‑September 2021. As a result of the stop, Ismail Abedi missed his flight. He returned to Manchester Airport the following day and left the country for Istanbul.
I was not aware of Ismail Abedi’s attempt to leave the country on 28th August 2021 or his successful departure a day later, until 31st August 2021, after he had left the UK. Once Ismail Abedi was out of the country, I had no powers to compel his return.
On 20th October 2021, the Solicitor to the Inquiry wrote to Ismail Abedi’s solicitors enquiring whether he would be attending to give evidence the following day. His solicitors replied that Ismail Abedi was aware of the requirement to attend the next day, but that he would not be coming.
On 21st October 2021, Ismail Abedi failed to attend to give evidence.
High Court enforcement
On 26th October 2021, I certified the breach of the second section 21 notice to the High Court.
On 7th December 2021, Mr Justice Sweeney found that Ismail Abedi had relevant evidence to give the Inquiry. He issued a warrant for Ismail Abedi’s arrest, returnable to the Inquiry hearing room.
Mr Justice Sweeney’s warrant can only be executed if Ismail Abedi returns to the UK.
On 14th and 15th March 2022, I heard oral closing statements from Core Participants in relation to the areas of evidence covered by this Volume of my Report. That date marked the natural end to the public hearings. Ismail Abedi had not returned to the UK by that date.
Given that Ismail Abedi had behaved deliberately to defeat my attempts to hear from him, I concluded that there was sufficient evidence to give rise to a reasonable prospect of securing a conviction for a failure to comply with the second section 21 notice. I also concluded that such a prosecution was in the public interest. Consequently, I instituted a prosecution against Ismail Abedi under section 35.
Ismail Abedi failed to attend the hearings before the Manchester and Salford Magistrates’ Court. On 14th July 2022, he was convicted in his absence of failing to comply with the second section 21 order, without reasonable excuse. A warrant has been issued for Ismail Abedi’s arrest.
At the time of publishing this Report, Ismail Abedi has not been sentenced. So far as I am aware, he is still out of the country.
Issues with the enforcement regime
The case of Ismail Abedi demonstrates that leaving a reluctant witness to complete their own witness statement will not provide answers to all relevant questions.
The first step in the procedure I adopted with Abdalraouf Abdallah was to require him to attend an interview, with a view to providing a witness statement under section 21(2)(a). The interview was recorded to ensure that there was no doubt about what his account was.
However, the terms of section 21(2) are silent on conducting an interview. They are focused on the requirement to provide a witness statement. Section 21(1) is focused on the giving of evidence. While I take the view that the provisions of section 21(2)(a) do include the recording of an interview for the purpose of a witness statement, it would be better if this was the subject of an express provision.
An inquiry is a search for the truth. The absence of evidence from a material witness is capable of significantly undermining this search. Ismail Abedi was one of the very few witnesses who had firsthand knowledge of the home in which SA and HA grew up. Given his parents’ departure to Libya prior to the Attack, he was uniquely placed to assist the Inquiry.
In the end, the lack of evidence from Ismail Abedi did not prevent me from confidently reaching conclusions about SA’s and HA’s upbringing. This was because of the other sources of evidence I was able to draw upon. However, his behaviour towards the Inquiry serves to underline the importance of the section 36 procedure and why it must be as effective as possible at securing evidence from material but unwilling witnesses.
As currently drafted, section 36(1) requires there to be a breach, or a threat of a breach, of a section 21 notice before certification to the High Court can occur. This means that, in the case of a witness who simply puts themselves beyond an inquiry’s reach without first threatening to do so, there is a potential gap. This needs to be addressed.
In the case of a material witness who decides to travel abroad, there may be a risk that they are doing so to avoid the use of a witness summons to compel their attendance. In my view, there should be statutory powers available to the High Court capable of applying short‑term restrictions on the movements of a citizen who is a material witness to an inquiry. Such powers should only be available when they are justified by the importance of the witness’s evidence and an objectively determined risk of that person’s non‑co‑operation.
I have identified three particular issues with the operation of section 35 in practice.
First, any allegation of offending contrary to section 35 must be brought within six months of the breach of the section 21 notice. This is by virtue of section 127 of the Magistrates’ Courts Act 1980. This section requires all summary only offences to be brought within six months, unless the contrary is expressly stated by another statute. In the context of an inquiry, which might last much longer than this, six months is not a sufficiently long period of time.
Section 36 operates as a mechanism to enforce a section 21 notice. By contrast, section 35 provides scope to punish a person for a breach of a section 21 notice. Enforcement through section 36 may be the preferred approach, until an inquiry is no longer in a position to receive that evidence. Instituting criminal proceedings before that point is likely to reduce, rather than increase, the prospects of successfully securing the evidence.
In my view, the six‑month time limit on section 35 prosecutions is too short. It may create a situation in which an inquiry is forced to move to seeking to punish a breach of a section 21 notice while there is still time effectively to enforce the same notice under section 36. This can be avoided by an amendment to the terms of the Inquiries Act 2005 to make express provision for an extended time for instituting a prosecution.
Second, the effect of section 14 of the 2005 Act is that an inquiry Chairman ceases to exist as such when they notify the sponsoring Secretary of State that the inquiry’s terms of reference have been discharged. This creates an issue in relation to any prosecution instituted by a Chairman under section 35. At that point, the ‘prosecutor’ of those proceedings ceases to exist.
I sought to address this by inviting the Director of Public Prosecutions to agree to take over the prosecution of Ismail Abedi shortly after this terminatory event, under section 6(2) of the Prosecution of Offences Act 1985. In practice, this was entirely straightforward. I am very grateful for the Crown Prosecution Service’s co‑operation with my objectives. However, it did seem to me that new ground may have been broken in the course of these discussions.
In my view, this situation may recur. In particular, in the case of any witness who absents themselves from the jurisdiction, there exists the real possibility that any criminal proceedings under section 35 will outlive the office of the Chairman of a public inquiry.
Third, extraditing a person from another country is rarely a straightforward process. Extradition in relation to an offence under section 35 is impossible as the maximum sentence of 51 weeks’ imprisonment is below the minimum, standard, qualifying threshold. This is because of the terms of section 148(1)(b) of the Extradition Act 2003. That subsection provides that an extradition warrant to the UK can only be granted if the maximum sentence for the offence in question is at least 12 months’ imprisonment.
I recommend that the Home Office give consideration to addressing the difficulties in extradition in relation to an offence under section 35, given that the maximum sentence for such an offence is below the minimum qualifying threshold for extradition.