By definition, they address matters which are of interest to the public. Often members of the public wish to take a more active role in the inquiry process. The inquiry into the Manchester Arena bombing is of particular interest to the public. A recent case from the High Court Queens Bench Division, which considered a decision of the Chair of the Inquiry will also be of particular interest to lawyers.
We are all familiar with the tragic circumstances of the Manchester Arena bombing on 22 May 2017. There were 23 fatalities and dozens of injuries. A criminal investigation was set up which led to the conviction of Hashem Abedi, the brother of suicide bomber Salman Abedi. There were a number of other investigations carried out. In October 2019 a Public Inquiry was established under the Inquiries Act 2005. It was considered that there was sensitive material of central relevance to the matters which it would not be possible to be heard at an Inquest.
Among the seriously injured survivors were three individuals who became involved as Claimants in subsequent litigation. The Claimants had been refused core participant status in the Inquiry by the Inquiry's Chairman, Sir John Saunders. They sought permission to challenge this decision by way of Judicial Review. Ultimately, that application was refused as being out of time. However, the court did address a number of interesting questions about the granting of core participant status.
What is a core participant?
The Chairman of an Inquiry may designate a person as a core participant if:-
(a) the person played, or may have played, a direct and significant role in relation to the matters to which the Inquiry relates;
(b) the person has a significant interest in an important aspect of the matters of which the Inquiry relates; or
(c) the person may be subject to explicit or significant criticism during the Inquiry proceedings or in the report, or in any interim report.
Core participant status enables a party to apply to ask questions of any witness to the Inquiry, to make opening and closing statements at the Inquiry and to have sight of any report of the Inquiry prior to its publication.
The Claimants challenged the decision to refuse them core participant status on two grounds. First, they asserted that the Chairman's decision amounted to a breach of Articles 2 and 3 of the European Convention on human rights and freedoms ("the Convention"). Second, they argued the Chairman's decision was irrational. Although the Court refused permission to judicially review this decision on the basis that the Claimants were out of time, it did consider the substantive arguments which would have been made at the Judicial Review. It is that aspect of the Judgment which is of particular interest.
Status of the Chairman and the remit of the Inquiry
The Court held that the Chairman, conducting that Inquiry in accordance with his Terms of Reference, is a public authority. It is unlawful for a public authority to act in a way which is incompatible with the Convention rights (Section 6 of the Human Rights Act 1998). The Terms of Reference for the Manchester Arena Inquiry were as follows:-
"To investigate how, and in what circumstances, 23 people came to lose their lives in the attack at the Manchester Arena on 22 May 2017 and to make any such recommendations as may seem appropriate."
The Terms of Reference did not refer to survivors of the attack, such as the Claimants. The Chairman therefore has no authority or entitlement to investigate the circumstances in which the survivors were injured. The Court found that as the Inquiry had no separate investigative obligations as regards the survivors, those survivors have no entitlement to core participant status. For that reason, the Court held that there was no arguable case under the Convention.
Arguments under the Convention
The Court went on to set out a further reason why it considered the claimants' grounds based on Articles 2 or 3 were not properly arguable. The Chairman had clearly set out that he wished the survivors to participate in the Inquiry. They could attend hearings; they may be called as witnesses; they were encouraged to raise issues with the Inquiry. The Claimants wished all the rights that would be granted to a core participant, i.e. to have full disclosure of documentation, legal representation (including legal aid) and the right to cross examine witnesses and make submissions. Article 2 of the Convention establishes the right to life. One of the duties it imposes on the State is a duty to initiate an effective public investigation by an independent official body into deaths occurring in certain circumstances, including where agents of the State are or may be in some way implicated. Article 3 prohibits torture and inhumane or degrading treatment or punishment.
There must necessarily be an investigation if the death occurs as a direct consequence of State action or as a result of a failure by the State to take steps to protect life in circumstances where it was under specific duty to do so. There is no suggestion that the State was directly responsible for the Manchester Arena bombing. The Court therefore held that there was no automatic obligation on the State to establish an Inquiry which would give the Claimants what they sought. Article 2 does not only apply to fatalities. It can also be engaged where there are serious injuries, such as those sustained by the Claimants. However, there is judicial authority for the commonly held understanding that a fatality is of greater gravity. There is no doubt that the Manchester Arena bombing was a grave incident. The consequences were of the most serious kind. However, the culpability of the State, in failing properly to assess the risk Salman Abedi posed and to take adequate steps to prevent his attack, was not a grave error when it was considered in the context of the hundreds of potential threats to security of the United Kingdom. The Court therefore held that the claimants' case did not fall into the most serious category of Article 2 or 3 cases.
Even where the Article 2 procedural duty arises, the State is under an obligation to conduct an effective investigation. There have been a number of investigations into the bombing, including by Lord Kerslake. There had also been a substantial criminal investigation resulting in conviction. Therefore, this duty, so far as it may exist, had been complied with.
For all these reasons, the claimants' argument under Articles 2 and 3 were not accepted by the Court.
Irrationality argument
The Claimants also argued that the Chairman's decision to refuse them core participant status was irrational. The granting of core participant status is at the Chairman's discretion. He had considered a number of factors including that the Inquiry had commenced following an inquest on the deceased, that there was an overlap of interest and perspective between the survivors and bereaved families, that the survivors could be called as witnesses to assist with the investigation and that the survivors could participate in the Inquiry by other means without being designated as core participants. His focus was not on what the Claimants may gain from core participant status, but instead was on the Terms of Reference for the Inquiry itself. The Terms of Reference covered the investigation of the fatalities at Manchester Arena, not of the circumstances in which others came to be injured. Considering the reasoning of the Chairman, the Court found that his decision could not be classified as "irrational".
Conclusion
This interesting case provides a helpful analysis of the application of the Convention to Inquiries of this nature. Perhaps more importantly, it provides us with a valuable reminder of the importance of the Terms of Reference for any Inquiry. It is vital that any Chairman ensures he or she is acting within the scope of his Terms of Reference. All parties, and those representing them, whether they be core participants or not, would be well advised to consider the Terms of Reference carefully at all times throughout the Inquiry process, and take the opportunity to step back and reconsider them to refresh their memories during the course of any long running Inquiry.
