EA & Anor, R (On the Application Of) v The Chairman of the Manchester Arena Inquiry

A judicial review claim challenging refusal of core participant status in a public inquiry must be brought within the statutory time limit. A later request to reconsider a final decision does not ordinarily create a new decision or extend time.

An inquiry chairman’s powers and procedural duties derive from the inquiry’s Terms of Reference. Convention rights do not require an inquiry to investigate matters outside those Terms of Reference, nor do they automatically require survivors of a non-State attack to receive core participant status. The chairman has a broad discretion under rule 5 of the Inquiry Rules 2005, and disagreement with the merits of that decision is not, without more, irrationality.

EA and BT, survivors of the Manchester Arena bombing, sought permission to challenge by judicial review the Chairman’s refusal to designate them as core participants in the Manchester Arena Inquiry. The Chairman’s ruling was issued on 21 April 2020. The claim was issued on 29 May 2020, after the 14-day period in section 38(1) of the Inquiries Act 2005. The claimants argued that a later refusal to reconsider the decision, dated 18 May 2020, either constituted the operative decision or formed part of a composite decision.

They also alleged breaches of articles 2 and 3 of the Convention and irrationality under rule 5 of the Inquiry Rules 2005. LL applied to be joined. The central issues were whether time should be extended, whether the Convention required core participant status, and whether refusal of that status was arguably irrational.

1. Time limit. The 21 April ruling was a complete and final decision capable of challenge. The 18 May correspondence merely refused to reopen it and did not constitute a fresh or composite decision. The claim was therefore substantially out of time under section 38(1) of the Inquiries Act 2005.
2. Extension of time. Compliance with the statutory time limit was particularly important because delay threatens the efficient conduct of public inquiries. The court could take account of the claimants’ earlier delay in applying for core participant status, the imminence of the Inquiry’s hearings, the diversion of resources, and the public interest in timely completion. Difficulties involving communication, legal aid and the coronavirus pandemic did not justify an extension on these facts. The extension application was refused.
3. Terms of Reference and Convention rights. The Chairman’s authority was defined by the Inquiry’s Terms of Reference, which concerned the deaths of the 22 people killed in the bombing. The Inquiry could investigate survivors’ injuries only to the extent necessarily incidental to that task. Section 3 of the Human Rights Act 1998 did not empower the court or the Chairman to recast the Terms of Reference. The survivors consequently had no Convention-based entitlement to core participant status.
4. Articles 2 and 3. The attack was carried out by a non-State actor in the community, and the State had not assumed responsibility or control over the claimants. The case was therefore not at the highest end of the article 2 or article 3 spectrum. The Convention requires flexibility in the form and degree of investigation and participation. Existing criminal and other investigations, together with the arrangements made by the Chairman for survivor participation, meant that it was not arguable that core participant status was required.
5. Rationality. Rule 5 confers a broad discretion. The Chairman accepted that the claimants had a significant interest under rule 5(2)(b), but was entitled to weigh the Inquiry’s Terms of Reference, overlap with the interests of bereaved core participants, alternative forms of participation, possible delay and statutory cost considerations. His conclusion was one properly open to him. The claim disclosed no properly arguable public law challenge.
6. Disposition. Time was not extended and permission for judicial review was refused. LL’s application to join was refused. Permanent anonymity orders were made for EA, BT, LL and their litigation friends.

High Court (Administrative Court): the Divisional Court refused to extend time for the judicial review claim, would in any event have refused permission on the merits, refused LL’s application to join, and made permanent anonymity orders.