UCPI Designated Lawyer Officers Core Participant Group, R (on the application of) v Sir John Mitting

A chairman of a statutory inquiry may issue a notice under Inquiries Act 2005, section 21, to a witness resident overseas where the statutory scheme has a sufficient connection with the United Kingdom. The relevant criminal omission occurs when the witness fails to attend at the specified place and time in the UK. The witness’s overseas residence on the date of issue or service does not invalidate the notice. Practical limits on enforcement abroad concern enforcement jurisdiction and are not decisive of prescriptive jurisdiction.

Fairness does not ordinarily require advance notice that a section 21 notice may be issued. The recipient has an opportunity to make representations under section 21(4). A legitimate expectation requires a clear, unambiguous and unqualified representation. Relief may also be refused where it is highly likely that the outcome would have been substantially the same.

The claimant, a core participant group representing former Metropolitan Police personnel, challenged a notice issued by the Chairman of the Undercover Policing Inquiry under section 21 of the Inquiries Act 2005. The notice required HN86, a former undercover police officer resident overseas, to attend oral hearings in London.

The claim raised two issues: whether section 21 empowered the Chairman to issue a coercive notice to a person outside the UK, and whether the notice was procedurally unfair because the possibility of compulsory attendance had not been communicated earlier. The claimant also relied on an alleged legitimate expectation and challenged the consequences of the process for HN86.

1. Ground 1 dismissed. Sections 21 and 35 of the Inquiries Act 2005 had to be read together as a package. A section 21 notice required attendance at a specified place and time and failure to attend could constitute an offence under section 35. The question was therefore whether Parliament intended that package to apply where the witness was resident outside the UK.
2. The presumption against extra-territorial application did not invalidate the notice. The substantial measure of the criminal conduct occurred in the UK: the required attendance was in London and, at the relevant time, the omission consisted in the absence of the witness from the inquiry. There was no material distinction between a person resident overseas and a person temporarily abroad when attendance was required. The place of issue or service was not determinative.
3. The court distinguished prescriptive jurisdiction from enforcement jurisdiction. Difficulties in arresting or otherwise enforcing the notice abroad were relevant to statutory interpretation but were not decisive. The court applied the substantial measure approach associated with Treacy v Director of Public Prosecutions and R v Sheppard & Anr. Notices under section 21(2) could similarly have extra-territorial effect where acts performed abroad had serious consequences in the UK.
4. Serious Organised Crime Agency v Perry (Nos 1 and 2) and R (KBR Inc) v Director of Serious Fraud Office were distinguishable because they concerned different statutory schemes and notices requiring foreign persons abroad to provide information or documents, with the relevant non-compliance occurring outside the UK. The present inquiry scheme involved a direct connection between the witness and matters under investigation and a required attendance in the UK.
5. Ground 2 dismissed. The claimant had sufficient standing. Fairness is context-dependent and, under section 17(3), the Chairman owed statutory and common law duties of fairness. However, fairness did not require advance notice of a possible section 21 notice. Section 21(4) supplied an opportunity to make representations after service. The court agreed with the conclusion in The Muckamore Abbey Hospital Inquiry case.
6. No clear, unambiguous and unqualified representation had created a legitimate expectation that no notice would be issued. The notice did not come as a bolt from the blue, and the subsequent history showed that an earlier opportunity to make representations would not have changed the outcome. In any event, section 31(2A) of the Senior Courts Act 1981 required relief to be refused because it was highly likely that the outcome would have been substantially the same.
7. The judicial review application was dismissed.

First-instance judicial review proceedings in the Administrative Court. The application was dismissed by the Divisional Court of the King's Bench Division.