knowledge 23 April 2026 |

Navigating Public Inquiries (Part 2): Process and Documentary Evidence

Legal framework

Familiarity with the legal framework which applies to a public inquiry, both at the outset and throughout, is fundamental when engaging with the inquiry process.  That framework typically has a number of elements:—

• Statutory regime: the framework is determined by the nature of the public inquiry and by the powers granted by the applicable statutory regime; for example, the Commissions of Investigation Act 2004, the Tribunals of Inquiry (Evidence) Acts 1921—2004, the Companies Act 2014, etc.
• Procedural rights: the framework is also informed by procedural rules specific to the investigation and legal rules of more general application, such as the requirements of constitutional justice, which import procedural rights and obligations vis-à-vis notice, participation, legal representation, cross-examination, the privilege against self-incrimination, amongst others.  While the courts typically afford public inquiries wide latitude in conducting their investigation with a greater degree of informality than would otherwise be required in a court of law or equivalent forum — for example, in considering hearsay or relaxing the rules of evidence — they must not do so in a manner which imperils a fair hearing or a fair result.¹
• Terms of reference: most public inquiries are limited by terms of reference set out in their originating instrument (usually primary or secondary legislation or a court order authorising their investigation).  Public inquiries should be careful to remain within the guardrails expressed in their terms of reference.  We frequently encounter terms of reference which are open to interpretation or contain ‘catch-all’ language: public inquiries generally enjoy broad discretion when construing the scope of their investigation and exercising their powers.  If, however, a public inquiry exceeds the permissible scope of its mandate or otherwise takes steps unlawfully or claims powers to which it is not entitled, it risks acting ultra vires and exposing itself to litigation and potentially jeopardising its findings.

It is essential that any public inquiry keeps the applicable framework — its terms of reference and all other legal requirements — to the forefront of its mind when conducting its investigation and in formulating its findings and this should be kept under review when engaging with the inquiry’s team, which generally comprises a judge or senior counsel appointed as chair of the inquiry, who in turn appoints a team to assist.  This team can include a solicitor registrar, senior and junior counsel, forensic accountants or other experts and technology support providers, depending on the scale and complexity of the subject matter of the inquiry.

Keeping the process under review

Achieving procedural fairness is an iterative process and the requirements of fairness regularly evolve during the lifetime of a public inquiry.  What is procedurally fair in one inquiry may not necessarily be procedurally fair in another inquiry.  Equally, what is procedurally fair at the outset of an inquiry may not necessarily remain procedurally fair as the inquiry proceeds.  For example, evidence impacting a person’s reputation may require changes to the process in order to achieve procedural fairness.  As a result, it is important that public inquiries adopt a dynamic approach to the process being followed, remain live to any need to change and modify the process as required.  

Documentary evidence — process issues

The explosion of digital data in recent decades has dramatically increased the type and volume of documentary evidence sought by and produced to public inquiries. A plethora of digital sources are now used to communicate which has led to a rich source of evidence for public inquiries to seek and collect and will likely form the basis of witness examinations. As such, we expect that public inquiries of the future will be even more ‘document-led’ than in the past, bringing new challenges and process considerations.  In that context, we commonly encounter issues involving:—

• Production: Production orders compelling documents should contain clear language about the documents in scope and give sufficient contextual information to enable persons subject to such orders and their advisors to assess the relevance, location and custodians of potentially relevant documents. 
• Retention: As noted in our first briefing in this series, scoping and gathering information that is potentially relevant to the inquiry is a key first step to ensure preservation of potentially relevant information. Recipients of production orders should immediately apply legal holds (if not already in place by the time of receipt of a production order) suspending any data destruction protocols to ensure that no relevant documents are lost, remembering that ‘document’ is very broadly interpreted as anything containing information, which includes not only hard-copy documents and email data, but also audio files, videos, photographs, messages sent via text, WhatsApp, Teams, etc.  The proliferation of draft versions of documents, chain emails and business communications held on personal devices are some of the issues we commonly navigate with clients when dealing with production orders.
• Compliance: It is critical from a process perspective that the public inquiry issues production orders to all parties likely to hold potentially relevant documents so that the full documentary picture is gathered.  If, following receipt of the initial production, it becomes obvious that other parties may hold documents of potential relevance, production orders should be issued by the public inquiry to those parties.  It is therefore important when engaging with the public inquiry to be aware of its data sources to ensure there are no information gaps or deficits which may result in an unfairness in the process.  It is also important that the recipients of production orders ensure that they fully comply with the terms of order so that all relevant documents are produced.  If gaps are identified by the inquiry, this can raise questions about the quality of the documentary production made by another party, for example where two parties hold common documents, such as emails between them, and only one of the parties produces some of those communications.
• Timeframe: The inquiry should be reasonable when assigning deadlines for production by the relevant parties. Oppressively short deadlines not only risk unfairness in the process but also increase the chance of important documents being missed through inadvertence.
• Privilege: Public inquiries are not entitled to eclipse the protection of legal professional privilege, which entitles parties to withhold or redact potentially relevant documents.  A party’s approach to privilege can be an important strategic decision which should only be made in close consultation with legal advisors and always with a careful eye on the particular circumstances of the public inquiry.
• Redactions: Public inquiries and the parties involved should, at an early stage, agree an approach to irrelevant, commercially sensitive data and personal data.  Most public inquiries in our experience adopt a sensible approach to such data and will permit the disclosing party to redact it. 
• Access: Where there is the potential that adverse findings may be made by the inquiry against a person, that party should be provided with access to the documentary evidence received by the inquiry bearing upon that party and the potentially adverse findings.  Separately, early cooperation between the inquiry and the parties can sometimes be useful in terms of agreeing, and where appropriate narrowing the scope of, the core documentary evidence to be relied upon at the inquiry or to be provided to different categories of witness or the other parties involved.
• Narrative: It is essential, both during and after the production and review of documents, that the inquiry and the parties get to grips with the ‘documentary narrative’, i.e. the story being told by the documents.  Familiarity with the documentary evidence assists both the inquiry and the parties involved in calling the right witnesses during oral hearings, in identifying and filling documentary gaps, and in exploring all relevant avenues of inquiry, ultimately ensuring that the findings made by the inquiry are fair, accurate and robust.

What’s Next

Our next briefing in this series continues to address process issues regarding oral hearings during public inquiries.