The Supreme Court of the United Kingdom (UKSC) recently issued a rare judgment in relation to the proceedings of a live public inquiry.
It has found that ongoing, or potential, criminal prosecutions did not in this case mean that the inquiry should be paused until those investigations were complete. This issue is a common challenge in many ongoing public inquiries – the circumstances which require a full statutory inquiry can often overlap with the potential for criminal sanction.
This decision related to the Muckamore Abbey Hospital Inquiry (the Inquiry) (link), a statutory inquiry set up to examine the abuse of patients at the hospital, why the abuse happened, and the range of circumstances that allowed it to happen.
Similar to most public inquiries, it is a lessons learned exercise aimed at ensuring such abuse does not occur again at the hospital, or any other institution in Northern Ireland which provides similar services. The Inquiry was formally set up in 2021 and began hearing evidence in June 2022.
Prior to the Inquiry, there were concerns about patient care. After an independent panel investigation, it was concluded that there had been failures at the hospital which resulted in harm to patients. Following this, several members of staff were suspended, and there have been eight former staff members who have been charged with criminal offences in respect of alleged abuse in the course of their employment at the hospital. Trials for all accused remain pending. It is also possible that others may yet be charged and prosecuted as the Police Service of Northern Ireland (PSNI) has not yet concluded its investigation.
Simultaneous police investigations can create challenges for public inquiries in investigating the same or connected issues without interfering with the police’s activities. There is also a risk to the public inquiry that witnesses may invoke their right against self-incrimination when giving evidence.
The Minister of Health had taken advice and sought the PSNI’s input before proceeding. The Inquiry put in place various measures to ensure the proper running of the Inquiry, without coming into conflict with the PSNI’s work.
In 2022, one of the accused, a former staff nurse at the hospital at the centre of the Inquiry, sought to suspend the Inquiry until the conclusion of the criminal prosecution. The then Minister of Health refused this, and this refusal was then judicially reviewed. The case has now made its way to the Supreme Court.
The appeal was unanimously dismissed by the Supreme Court. The decision focused on the statutory interpretation of section 13(1) of the Inquiries Act 2005, which is the power of a Minister to suspend an inquiry for such a period that is necessary to allow for any civil or criminal proceedings arising out of matters relating to the inquiry.
Section 13(1) provides that: “The Minister may at any time, by notice to the chairman, suspend an inquiry for such period as appears to him to be necessary to allow for— (a) the completion of any other investigation relating to any of the matters to which the inquiry relates, or
(b) the determination of any civil or criminal proceedings (including proceedings before a disciplinary tribunal) arising out of any of those matters.”
The petitioner challenged that the word ‘necessary’ applied only to the period of suspension, and not for the purposes set out in s13(1)(a) or (b).
The Supreme Court held that ‘necessity’ applies to the period of time and the decision whether to suspend an inquiry for this purpose in section 13 of the 2005 Act.
The court considered it would be illogical to apply a test of necessity only to the period of suspension, because if the decision to suspend an inquiry as a result of live proceedings is made, then the period of suspension would be based on the progress of those other proceedings and would be out of the control of the Minister.
From a lawyer’s perspective this case is an interesting look at statutory interpretation using what we call a purposive approach. From a very practical perspective however, it also means that ministers could potentially suspend a public inquiry at any stage if necessary to address other legal proceedings and is something to be kept under review by any minister responsible for sponsoring an inquiry. The practical and legal frameworks in place to protect the inquiry and police investigations will be critical in determining a suspension in these circumstances.
The Inquiry has continued throughout this legal challenge and will now proceed more confidently; although it is not impossible that the Minister might still, in future, find it necessary to suspend it.
We have supported clients throughout the full life journey of an inquiry, from pre-commencement to recommendations, and in judicial reviews to inquiries. We are experienced in managing responses to high-profile inquiries and regularly work with boards and key stakeholders to identify liability, reputational and strategic risk. Our team also has experience in acting as solicitors to a major inquiry, giving us a unique perspective. If you’d like to discuss how we can support you, please get in touch.
Written by
Louise McErlean
Associate
Public Law
Louise is an associate in our Public Law and Regulatory team.
Harry Grieve
Trainee Solicitor
Harry is a trainee solicitor at Burness Paull.
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