Public Inquiry disclosure: Rule 9 Requests and Section 21 Notices

Rule 9 Requests

A Rule 9 Request is a request submitted in accordance with Rule 9 of the Inquiry Rules 2006. Rule 9 sets out what the inquiry must do in order to require a party to provide either disclosure of documents or a written statement. The relevant provision states:

• The inquiry panel must send a written request for a written statement to any person from whom the inquiry panel proposes to take evidence.
• The inquiry panel must send a written request to any person that it wishes to produce any document or any other thing.
• The inquiry panel may make a written request for further evidence, being either a written statement or oral evidence.
• Any request for a written statement must include a description of the matters or issues to be covered in the statement.

A Rule 9 Request is considered to be a less formal request as it does not have the power to compel the provision of documents.

Section 21 Notices

The power to compel the provision of documents is set out in Section 21 of the Inquiries Act 2005. The chair of an inquiry may by notice require a person to attend at a time and place stated in the notice:

• (a) to give evidence;
• (b) to produce any documents in their custody or under their control that relate to a matter in question at the inquiry; or
• (c) to produce any other thing in their custody or under their control for inspection, examination or testing by or on behalf of the inquiry panel.

The chair may by notice require a person, within such period as appears to the inquiry panel to be reasonable:

• to provide evidence to the inquiry panel in the form of a written statement;
• to provide any documents in their custody or under their control that relate to a matter in question at the inquiry;
• to produce any other thing in their custody or under their control for inspection, examination or testing by or on behalf of the inquiry panel.

Section 35 of the Inquiries Act 2005 states that it is a criminal offence to fail to comply with a Section 21 Notice, do things intended to have the effect of distorting or altering the evidence, or intentionally suppress or conceal a document.

However, there are two circumstances where a party can lawfully refuse to comply with a Section 21 Notice. These are:

• Where it is unable to do so e.g. it does not possess the document; or
• Where it is unreasonable for it to do so e.g. time difficulties, where the material is unlikely to be of assistance to the inquiry.

There are also exemptions to the need to disclose documents which are set out in Section 22 of the Inquiries Act 2005, including where the document in issue is privileged or where it may incriminate the party concerned.

An inquiry cannot compel production of documents which are outside the scope of its Terms of Reference.

Parties required to provide evidence/disclosure must ensure that it complies with its own data protection obligations including those imposed by the GDPR.

In our series of blogs on public inquiries, we have also looked at:

• An overview of public inquiries
• How public inquiries are structured
• Involvement in public inquires, including core participants

Blake Morgan’s team of public inquiries solicitors have significant experience in representing clients in public inquiries.