Afternoon session of Phase 2 opening statements from bereaved, survivors and residents representatives. Focuses on themes of change implementation, fragmentation in construction industry, and procedural concerns about corporate accountability.
00:00:08 good afternoon the inquiries about to resume
00:00:12 resume therefore please can you take your seats and remain silent just to remind you that no photographs are allowed to be taken in the hearing room and your phone should be
00:03:01 yes sir madam I turn now through my second theme which is change and its implementation we say that the inquiry
00:03:12 implementation we say that the inquiry should be both ambitious and flexible in its approach ambitious in the sense that recommendations for change should be wide-ranging and radical flexible in
00:03:23 wide-ranging and radical flexible in that the terms of reference should be kept under constant review if they need to be widened then the inquiry should so recommend the inquiry needs to build upon the recommendations of the report
00:03:34 upon the recommendations of the report building a safe safer future of Dame Judith packets which was referred to yesterday which was published almost two years ago
00:03:41 years ago for example Dame Judith criticized what she referred to as indifference the primary motive to do things as quickly and cheaply as possible rather than to deliver quality homes
00:03:52 rather than to deliver quality homes which are safe cost should not be the sole or even the most important factor in designing and carrying out building projects safety must always come first
00:04:03 projects safety must always come first and be the focus of attention at all times it should always be the key driver the change from zinc to ACM was an important instance in this case of the
00:04:15 important instance in this case of the obsession with cost not so much choosing cheaper materials known to be unsafe but a concentration on cost at the expense of all else another theme
00:04:26 the expense of all else another theme running through this broader story is the fragmentation of the construction industry in 21st century Britain as I've said no one person or organization was
00:04:38 said no one person or organization was ever taking responsibility for anything the buck was past and continues to be past but no one was prepared to say the buck stops here this issue was raised in
00:04:50 buck stops here this issue was raised in terms on the very day the Farr occurred by the Grenville tower leaseholders association here after the GTL a and these are key questions for the inquiry
00:05:01 these are key questions for the inquiry to answer are B k400 186 at page zero zero zero two please
00:05:12 well they said this is it's widely acknowledged by authoritative sources in the fire brigade that the material of the cladding used by Ryden did not meet health and safety requirements in the
00:05:23 health and safety requirements in the true sense ie is a far risk as it is combustible the crucial question that we as a residents Association have is who signed off that the refurbishment
00:05:34 signed off that the refurbishment delivered by writing in 2016 met all the required health and safety standards and that remains the key question for this inquiry to answer in this connection that's in connection
00:05:46 this connection that's in connection with Frank meant a tion the inquiry should consider changes which have been proposed for the construction industry and those implemented in other industries for example the our IBA
00:05:58 industries for example the our IBA proposals for a new plan of work for fire safety and the senior managers and certification regime introduced in 2016 and following the financial crisis in
00:06:09 and following the financial crisis in the financial sector that there is a need for an improved regulatory system and stronger individual accountability has been emphasized by those at the
00:06:21 has been emphasized by those at the heart of this inquiry the survivors and buried families in their response to the green paper Grenville United called for a new system of regulation and an
00:06:32 a new system of regulation and an improved system of regulation so that what they described as an account accountability fretwork backed by law would mean there's a named person is responsible for people safety in any
00:06:43 responsible for people safety in any social housing tower block there will be consequence for individuals who prioritize profit over people Safety's it would mean individual failures could lead to sanctions including criminal liability
00:06:55 sanctions including criminal liability and even fines or prison in this connection our clients support the submissions of the fbu that the inquiry should carefully consider issues such as
00:07:06 should carefully consider issues such as deregulation and austerity for example did manpower cuts to RB KC's Building Control Department or the changed regulatory regime in which it was
00:07:17 regulatory regime in which it was operating affect its ability to do its job properly with catastrophic consequences related to these issues of fragmentation is the
00:07:28 to these issues of fragmentation is the fact that this was as we have heard a design and build contract in a previous era a project like this would have been designed by a borough architect employed
00:07:39 designed by a borough architect employed full-time by local authority and subject to limited if any commercial pressures the authority would have engaged a main contractor and the borough architect would have administer the contract an
00:07:51 would have administer the contract an alternative procurement route especially for more specialist work would have seen the authority engage a private firm of architects who would then have performed a similar role to the borough architect
00:08:02 a similar role to the borough architect in more recent times many public projects have adopted the design and build model and of course the in-house resources of local authorities have been
00:08:13 resources of local authorities have been reduced massively or eliminated altogether under design and build there is a danger as you may well feel occurred here that the architects once novated are squeezed out of the process
00:08:26 novated are squeezed out of the process they are after all now a cost burden for the design and build contractor and there is no independent professional person to administer the contract and ensure that the design intent is
00:08:38 ensure that the design intent is fulfilled now I've been talking about recommendations that the inquiry should consider but recommendations are all very well unless they're implemented and
00:08:50 very well unless they're implemented and unless the implementation is overseen they are not worth the paper they're written on the inquiry needs to be very well aware of the history here particularly of the lack '''l house fire
00:09:01 particularly of the lack '''l house fire which various people have referred to as the phase one report notes a major fire occurred lakyn all house in 2009 there was serious loss of life six people died
00:09:13 was serious loss of life six people died the coroner's recommendations were considered and extensive and included the need to address the requirements of Building Regulations v4 nothing much
00:09:25 Building Regulations v4 nothing much happened as a result as the lack '''l inquest was nearing its conclusions residents at another RB KC Estate wrote to the TMO the council in the following terms TMO a
00:09:38 the council in the following terms TMO a thousand and three eight seven one four at page underscore ten please on February the 27th 2013 they said at the inquest into the lethal far at Lacan or
00:09:51 inquest into the lethal far at Lacan or House the QC for the families of those that died described the work as a fundamental breach of Building Regulations a lamentable failure of the contractor could you please tell us what
00:10:04 contractor could you please tell us what checks and measures you have undertaken to ensure that Apollo who were the contractors hired by RB Casey for major works at Elm Park Gardens adhere to the
00:10:16 works at Elm Park Gardens adhere to the building regulations and that we will not suffer a similar fate the TMO were clearly giving these issues some consideration in 2013 as the grant Grenville project gathered pace for
00:10:29 Grenville project gathered pace for example Janice Rea of the TMO noted in May 2013 that quotes ensuring effective compartment ation of our dwellings is the only effective way of containing
00:10:40 the only effective way of containing fire and reducing fire spread from the flat of origin this was further reinforced to me yesterday at a briefing from the BRE on Malakal house fire where
00:10:51 from the BRE on Malakal house fire where breaches in a fast offing definitely contributed to far spread and in June 2013 Ray prepared a briefing those'll a candle house which observed that TMO
00:11:03 candle house which observed that TMO thousand one six two one five at page under school three please tragically this far resulted in six days which
00:11:14 this far resulted in six days which clearly led to much discussion about the cause the contributing factor and most importantly what action is required to ensure far safety and high residential blocks further only have also outlined
00:11:26 blocks further only have also outlined the TMA's current position approach and one of the masses you mentioned was a review proved document or B of the building regulations clear reference to external fire spread and yet despite all
00:11:39 external fire spread and yet despite all this and despite the coroner's best intentions Grenville saw the lack and all mistakes repeated and amplified the warning signs were there for all to see and they were ignored
00:11:53 for all to see and they were ignored most poignant ly of all Claire Williams of the TNA actually invokes the specter of Lacan all in November 2014 when she wrote to RT Lea about the cladding and
00:12:05 wrote to RT Lea about the cladding and that's at art AR T for zeroes 304 six page underscore two she said I've just been looking at the cladding as our
00:12:16 been looking at the cladding as our database is asking for costs however I don't know if there's any issue of flame retardants requirement I know at Lacan or house one issue was that the replacement paneling for the especial
00:12:28 replacement paneling for the especial cladding was not flame-retardant exclamation mark I don't know if this is in the specification but want to make sure if it is raised mr. booth of our Tia past having made a quick review of
00:12:43 Tia past having made a quick review of the specification suggested that Williams pass on that matter to Rison say Claire Williams took this up with
00:12:54 say Claire Williams took this up with Simon Lawrence of Ryden copying to booth later on the same day and that's at RI d ry d zero zero zero two three four six
00:13:05 ry d zero zero zero two three four six eight where she said I'm just writing to get clarification on the far retardant of the new cladding I just had a lack
00:13:16 of the new cladding I just had a lack nor moment there was no response to this and neither Williams nor our tinea seem to have followed this up RT Lea submitted in their.all opening the other day that they did exactly what an
00:13:28 day that they did exactly what an employer's agent should do but what they did not do of course was to check that had but there had been an answer of any kind to williams question this was
00:13:39 kind to williams question this was perhaps the last chance to avert disaster and it was not taken the email change should have alerted all concerned to the fact that there was no fire strategy and there had been no coherent
00:13:51 strategy and there had been no coherent attempt designed the cladding to take proper account of the fire safety issues but it seems not to have done so however this episode is also a warning
00:14:03 however this episode is also a warning about the inquiry process itself however thorough the analysis of what has gone wrong and however trenchant the recommendations nothing will happen unless those recommendations are more matured and
00:14:15 recommendations are more matured and implemented thus in relation to the phase 1 recommendations the inquiry needs to consider carefully which of those matters of the most urgent who is dealing with the required changes and
00:14:27 dealing with the required changes and what mechanism is appropriate for those changes to be implemented as the panel will be aware and as mr. Stein referred to you the government is considering its response to the phase 1 report and is
00:14:40 response to the phase 1 report and is proposing to bring forward legislation but little has so far happened and in any event this inquiry should be proactive in itself monitoring what is
00:14:52 proactive in itself monitoring what is being brought forward at a legislative level for example John Healy the Labour spokesperson advocated a five-point plan for action for the Secretary of State to
00:15:04 for action for the Secretary of State to adopt in the House of Commons debate last week and the reference to that is House of Commons debates 21st January volumes 670 column 2 3 4
00:15:16 volumes 670 column 2 3 4 in short the outcome of this inquiry should not emulate emulate dickens circulation circumlocution office with half a score of boards half a bushel
00:15:28 half a score of boards half a bushel bushel of minutes several sacks of official memoranda and a family vault full of ungrammatical correspondence on how not to do it or emails to similar
00:15:40 how not to do it or emails to similar effect the urgency of the dart task is not in doubt for example Ryden are still working on large public housing projects and were until very recently still being
00:15:52 and were until very recently still being allowed to bid for or work on high-rise buildings there have also been as mr. Stein referred to a number of well-publicized fires where the cladding has been a substantial contribution
00:16:04 has been a substantial contribution factor I deal now with my final theme which is process
00:16:11 our clients have a number of concerns about the inquiry process we ask the inquiry team to reflect upon them the first relates to the evidence and
00:16:23 first relates to the evidence and argument which is about to begin on the 4th of June 2018 at the very beginning of this inquiry mr. Milind QC has as has already been mentioned more
00:16:34 has as has already been mentioned more than once outlined what was expected from the corporate participants he asked that their statements address very
00:16:45 that their statements address very specific identified issues that they provide what he described as a full and clear case he said that that course
00:16:58 clear case he said that that course would be pursued with vigor by the inquiry and as has been said many times already
00:17:05 already he deprecated deprecated any suggestion any temptation to indulge in a merry-go-round of buck-passing however
00:17:16 merry-go-round of buck-passing however despite those wise words the witness statements from the key players have demonstrated exactly that which mr. millet warned against they say very
00:17:30 millet warned against they say very little so for example the statements from Studio E are long and detailed and refer to many documents others from x over and risin for example are terse and
00:17:43 over and risin for example are terse and on forthcoming and make little apparent use of the documentation however the documents the witness statements share a common thread the reader would struggle
00:17:54 common thread the reader would struggle to extract mr. millets full and clear case none of the witnesses really engaged with the question of how the widespread and fundamental failures
00:18:06 widespread and fundamental failures identified in the phase 1 report came to take place the culprits have indeed elected to indulge in a merry-go-round of buck-passing no one takes
00:18:19 of buck-passing no one takes responsibility for anything everyone seeks to blame other parties and avoid accepting any responsibility themselves the Deuter duty of candor has
00:18:30 themselves the Deuter duty of candor has been ignored this process has continued in inter and indeed been much expanded and developed in the opening submissions
00:18:41 and developed in the opening submissions with the very limited exceptions of our bkc and Celotex none of the corporates takes responsibility for anything they are prepared piously to express deepest
00:18:54 are prepared piously to express deepest sympathy for those affected and to pledge their undying loyalty to the work of the inquiry but of contrition there is little sign say for example ridin the
00:19:06 is little sign say for example ridin the design and build contractor appears not to have been responsible for either designing all building the works in his oral opening for ride and mr. Taverner QC used the word delegate or its
00:19:19 QC used the word delegate or its variants about a dozen times and yet as the design and build contractor ridin could not in fact delegate responsibility for anything
00:19:30 responsibility for anything mr. Tavenner also made the point that ridin were reliant upon the architectural and engineering know-how of others but in truth it appears that ridin consciously decided no doubt for
00:19:43 ridin consciously decided no doubt for commercial reasons to marginal as that very know-how studio II say that they placed reliance upon X overs far safety engineers and yet they never clarified
00:19:54 engineers and yet they never clarified at the time exactly what xover were supposed to be doing they also seek to say that they were not responsible for checking the Harley drawings but that is
00:20:05 checking the Harley drawings but that is exactly what their innovation appointment required of them the deed of appointment as novated provided that studio e were to seek to ensure that all
00:20:16 studio e were to seek to ensure that all designs comply with the relevant statutory requirements and they were to coordinate any design work done bike sultans specialist contractors
00:20:27 sultans specialist contractors subcontractors and suppliers RT lea described in numerous contemporaneous documents which they themselves drafted as
00:20:37 as managers were not it seems actually responsible for managing the project hex over who held themselves out as world leaders in the provision of far safety
00:20:48 leaders in the provision of far safety services said say they had no responsibility for the far safety strategy for these works and where there is an admission of failure it is swiftly accompanied by a
00:21:00 it is swiftly accompanied by a deflection of blame in the direction of other passes say for example Harley say in their written and all labeling that the absence of cavity barriers around window openings may not have been
00:21:12 window openings may not have been compliant with the terms of ADB however in the very next breath they then blame the cladding design drawings of studio Eva failing to specify cavity barriers
00:21:23 Eva failing to specify cavity barriers and xover and building control for their failure to draw attention to the lack of cavity barriers both Ryden and Harley have sought to pass blame in the
00:21:35 have sought to pass blame in the direction of our comic Celotex placing reliance upon for example the sunnat' X data sheet which asserted that Celotex
00:21:47 data sheet which asserted that Celotex rs.5000 was acceptable for use in buildings above 18 meters in height however and crucially the data shape sheet went on to say as to certification
00:21:58 sheet went on to say as to certification and this is CL CL 4 zeros three zeros 8 at page under school 3 Celotex rs.5000
00:22:09 at page under school 3 Celotex rs.5000 is a premium performance solution and is the first PR our board to successfully meet the performance criteria set out in BR 135 then explained the system was
00:22:21 BR 135 then explained the system was tested and gave a description of it and then said this the far performance and classification report issued only relates to the components detailed above any changes to the components listed
00:22:34 any changes to the components listed will need to be considered by the building desired signer we can anticipate therefore that these corporate parties with enormous financial resources behind them and weld
00:22:45 financial resources behind them and weld paid teams of lawyers and extensive expert assistants are going to make the inquiries thar as difficult as they possibly can and as miss partners buys and mr. Stein have
00:22:57 miss partners buys and mr. Stein have already pointed out some of the corporates have underlined this approach by seeking to claim privilege against self incrimination for their witnesses all this gives rise to a number of
00:23:09 all this gives rise to a number of considerable procedural concerns concerns which our clients have not had the opportunity to ventilate until now since there has been no procedural hearing to prepare for phase 2 for
00:23:24 hearing to prepare for phase 2 for example it appears that much of the defense raised by certain corporates in module 1 will amount to the assertion that they were the innocent victims of misleading claims made by silat X and
00:23:37 misleading claims made by silat X and our colleague and yet those claims and those parties will be peripheral to module 1 these issues haven't been reserved to module two equally our
00:23:49 reserved to module two equally our clients wish to emphasize the difficulties they had in putting forward supplemental questions in the phase one of the inquiry they felt that not enough
00:24:01 of the inquiry they felt that not enough time was provided at the end of examination by counsel to the inquiry of witnesses in order to speak to clients and get instructions for supplemental
00:24:12 and get instructions for supplemental questions subject to questions under Rule 10 of the inquiry rules this is of course the only real afternoon for raising masses during the course of the hearings and we submit that a better
00:24:24 hearings and we submit that a better system will be required for phase 2 our clients are therefore concerned that they're much less well resourced voice should be heard in this inquiry the
00:24:35 should be heard in this inquiry the question or voice is an important one because the substantial part of the history of this tragedy is the way in which our bkc and the T&A ignored the
00:24:46 which our bkc and the T&A ignored the tenants at the time in November 2016 the Grenville Action Group posted a dramatic but fully justified and prophetic warning they would have been even more
00:24:58 warning they would have been even more concerned if they had been aware of the litany of incompetence and worse I have described
00:25:05 described and that's a TM Oh a thousand and four seven nine three three page underscore zero zero one they said that it is a truly terrifying thought but the
00:25:18 truly terrifying thought but the Grenfell action group firmly believe that only a catastrophic event will expose the ineptitude and incompetence of our landlord the TMO and bring to an
00:25:29 of our landlord the TMO and bring to an end the dangerous living conditions and neglect of health and safety legislation they inflict upon their tenants and lease holders and they went on to say
00:25:41 lease holders and they went on to say the Grenville Action Group predict that it won't be long before the words of this blog come back to haunt the TMA management and we will do everything in
00:25:53 management and we will do everything in our power to ensure that those in authority know how long and how appalling Lee our landlord has ignored their responsibility to ensure the
00:26:06 their responsibility to ensure the health and safety of their tenants and lease holders they can't say they haven't been warned the residents continue to raise concerns about our safety and our bkc and the t mo
00:26:19 safety and our bkc and the t mo continued to ignore them say for example in March 2017 the GT la wrote to a counselor to say that they intended to hire the independent health and safety
00:26:33 hire the independent health and safety inspector to carry out a full health and safety inspection of the premises that was forwarded to Laura Johnson of our bkc who responded to Robert black the
00:26:44 bkc who responded to Robert black the chief executive of the T MA I'm not minded to agree to this request I find that the work that the TMO has undertaken is more than sufficient on
00:26:55 undertaken is more than sufficient on that same day the GT la asked Laura Johnson quotes who is going to pay the ultimate price for the anticipated negligence of KCG MO the RB KC all the
00:27:08 negligence of KCG MO the RB KC all the residents of Grenville town and the 8 April 2017 the GLA wrote again to Laura Johnson referring to afar which had happened in the building in twin
00:27:19 happened in the building in twin ten due to poor maintenance and that email referred to a a petition calling for an independent investigation by an
00:27:30 for an independent investigation by an impendent independent adjudicator health and safety inspector and fire brigade inspection inspectors to carry out a full health and space safety inspection of the premises that was but a matter of
00:27:43 of the premises that was but a matter of weeks before the far the petition was signed by many residents it was delivered by hand by mr. Shah armored chair of GTL a to councillor feel the
00:27:54 chair of GTL a to councillor feel the melon and to Robert black and the 30th of May 2017 only two weeks before the far it should be noted in this regard that mr. Ahmed and the D CLA had been
00:28:06 that mr. Ahmed and the D CLA had been raising concerns about far safety to nerve Vale since 2010 our clients are therefore with that history and mind anxious that they should not be ignored
00:28:17 anxious that they should not be ignored or sidelined in the inquiry process for example despite our urgings to the contrary and as I have said there has been no procedural hearing to consider
00:28:29 been no procedural hearing to consider how a phase 2 can weaken should be conducted the scope of the map and management of the modules was entirely determined by the inquiry without any consultation with anyone as
00:28:41 without any consultation with anyone as part of that process the issue of engagement with the residents has been put into module three our clients have had no chance to speak as to that case
00:28:52 had no chance to speak as to that case management exercise and no chance either to comment on the formulation of each issue which is currently drafted as follows quotes complaints communications with residents nature of residents
00:29:05 with residents nature of residents complaints to the t mor bkc adequacy of response to those complaints adequacy of fire safety advice however
00:29:17 adequacy of fire safety advice however this formulation does not capture the real issue and does not address the real key to walk rent wrong with the design of the cladding and what therefore ultimately led to the fire the real
00:29:29 ultimately led to the fire the real issue is not merely complaints it is about the ability of those who lived in Granville Tower and those who live in social chat housing generally to have an input into what is being done to their homes
00:29:41 being done to their homes of course the residents of Granville tower were not necessarily experts on these materials or regulations but they were experts on where they lived and
00:29:52 were experts on where they lived and they constantly emphasized the need to give top priority to fire safety in marked contrast to the approach of the TMO and the construction professionals
00:30:05 TMO and the construction professionals this is an important area section 105 of the housing act 1985 requires only very limited consultation by social landlords with their tenants in respect of amongst
00:30:18 with their tenants in respect of amongst other things programs of maintenance or improvement a stronger legislative framework for consultation might help to avoid another Grenville and note that
00:30:30 avoid another Grenville and note that this is not just the wisdom of hindsight towards the end of the refurbishment councillor Blakeman an opposition counselor at our bkc made the following
00:30:41 counselor at our bkc made the following recommendations to her colleagues and that's at met triple zero a four five seven five that page underscore zero zero zero two she suggested that that
00:30:57 zero zero two she suggested that that they should ensure that formal collective consultation arrangements are in place at the start of any project either through a residents association or through a TM a compact and also that
00:31:10 or through a TM a compact and also that there should be appointed an independent residents advocate with direct access to senior TMA management who can expeditiously collate and progress residents concern especially matters of
00:31:23 residents concern especially matters of general concern the failure of our BK c and the TA to listen to the concerns of the residents was a substantial
00:31:34 the residents was a substantial contributory factor to this tragedy it must not happen again in this enquiry thank you very much Williamson well that
00:31:45 thank you very much Williamson well that completes the opening statements and at this point as I indicated yesterday morning I'm going to hear an application that's been made on behalf of a number
00:31:57 that's been made on behalf of a number of core participants in relation to claiming privilege against self-incrimination mister Laidlaw are you going to make this application on
00:32:08 you going to make this application on behalf of those who are interested in it thank you well take your time but when you're ready
00:32:30 and I ought to say immediately and just before I offer an unreserved apology that I appear as I know you sir know and
00:32:42 that I appear as I know you sir know and understand for Harley the corporate entity I do not represent the Harley witnesses in their personal capacity although as will become clear I am in
00:32:55 although as will become clear I am in effect speaking up on their behalf for your consideration and in speaking up for these individuals who would otherwise have no form of representation
00:33:08 otherwise have no form of representation I sincerely hope that this at least will be accepted of me that I believe it is my professional obligation to do so however unpopular that may make me and
00:33:22 however unpopular that may make me and however inconvenient to the smooth running of this important inquiry the consequences are so my apology I am very
00:33:33 consequences are so my apology I am very sorry that the application I'm about to make an application which I understand that a significant number of witnesses will support and their numbers may be
00:33:44 will support and their numbers may be added to as the inquiry progresses I'm very sorry that this application is made so late I accept of course that it could have been made earlier and I'm sorry
00:33:58 have been made earlier and I'm sorry that it's bound to cause disruption to the inquiry and that that prospect as mr. Mansfield said yesterday has and will cause the bereaved survivors and
00:34:10 will cause the bereaved survivors and residents of Grenville tower anxiety distress and anger for that as I say I am very sorry as mr. Mansfield also said the MBSR s
00:34:24 as mr. Mansfield also said the MBSR s and no doubt the inquiry itself have a major question and I quote over why it's been done so late and whilst I cannot
00:34:35 been done so late and whilst I cannot provide an excuse for that I can provide something of an explanation which I will because this is you do know don't you that this sort of
00:34:46 you do know don't you that this sort of question was raised 1516 months ago by the solicitors acting for the TMO and I
00:34:57 the solicitors acting for the TMO and I think the response that that stage was well you can't expect us to go to the attorney without some material and the invitation was given at that stage to
00:35:09 invitation was given at that stage to provide a basis for approaching the attorney now that was only on behalf of the TMO that letter was written but we received no response and since then all
00:35:21 received no response and since then all the indications have been that people were essentially not going to rely on privilege against self-incrimination and have not done so in relation to making
00:35:32 have not done so in relation to making statements or disclosing documents so it come as a bit of a surprise to find that this application was being mooted yesterday yes and I accept that in
00:35:43 yesterday yes and I accept that in respect of the first matter and I I do now know of that correspondence I didn't know that until very recently indeed and
00:35:54 know that until very recently indeed and I accept in terms of the appearance of things and the surprise that this has caused
00:36:03 speaking for myself now and just identify the reasons for me at least coming late to this issue because it may be that some or all of these reasons are
00:36:16 be that some or all of these reasons are shared by others who support the application first seeking to make the best use of limited funding but as I'm
00:36:27 best use of limited funding but as I'm afraid we do not have despite the submissions which were made but a moment ago unlimited funds or anything like that seeking to make the best use of
00:36:38 that seeking to make the best use of limited funding meant that after the summer of last year council including the juniors who represent Harley did not return to Harley's case until December
00:36:50 return to Harley's case until December and then as you'll remember there was much work to be done on behalf of the company to me the orders in respect of the delivery of the opening statement next and this
00:37:04 the opening statement next and this applies to those individuals in respect of who mr. higher passes adverse comment there was his report that had been served on the 31st of October but I did
00:37:17 served on the 31st of October but I did not see that until December and as far as the Harley individuals are concerned the view taken through to that point was that the risk of self-incrimination was
00:37:29 that the risk of self-incrimination was low I had not by way of example taken the view and it's the point that you've made sir a moment ago that the rule nine statements provided a year or so earlier
00:37:40 statements provided a year or so earlier by Harley put them at risk thirdly and importantly it was during the autumn so in October of last year that the police
00:37:53 in October of last year that the police interviews involving four of the Harley witnesses took place they having been notified that they were suspected of having committed a number of statutory
00:38:04 having committed a number of statutory and regulatory and fences and being interviewed under caution it also became clear and I made mention at this point in opening on Monday that these are the
00:38:16 in opening on Monday that these are the first of a number of interviews which are to be conducted by the NPS and then for in terms of the material which gives
00:38:27 for in terms of the material which gives rise to the concern that answering questions may expose the individual to prosecution to Mr Hyatts report one adds the service of the opening statements
00:38:39 the service of the opening statements last week and the emergence of the full extent of conflict of interest between the commercial CPS this is the buck passing as mr. millet calls it and his
00:38:53 passing as mr. millet calls it and his intention perfectly properly of course on behalf of the inquiry to explore in examining Harley witnesses by way of example where responsibility lies or is
00:39:05 example where responsibility lies or is shared and then finally but the best will in the world it does take time to gather
00:39:11 gather and achieve anything approaching a consensus even amongst a number of commercial CPS that's not an excuse for the lateness of the application as I
00:39:23 the lateness of the application as I have said it could have been made earlier and I have no doubt that this explanation will not remove the suspicion among some that there is some kind of ulterior objective of foot but I
00:39:37 kind of ulterior objective of foot but I can assure you that that is and not my purpose in making the application there is no advantage to me or the company I represent in as it were sponsoring this
00:39:49 represent in as it were sponsoring this application the corporate entity can't avail itself of this protection and is not seeking to do so this is a long-standing protection available only
00:40:00 long-standing protection available only to the individuals and those individuals who work or worked for Harley do not as I've said have a voice but will be in peril unless this issue is addressed and
00:40:14 peril unless this issue is addressed and neither is this issue as I know the Tribunal understands neither is this an issue of little or no importance this is as you described it a rule of law and a
00:40:28 as you described it a rule of law and a right that any witness has in civil proceedings when they are at risk of a criminal conviction and possibly of penal sanction it's also a right explicitly preserved by the statute that
00:40:40 explicitly preserved by the statute that governs the conduct of this inquiry and neither are I'm bound to observe should anybody think that this issue had it not been raised before Monday evening would
00:40:54 been raised before Monday evening would not have arisen in any event very early on in the evidence and can I provide an example as soon as mr. millet asked as no doubt the BS I would expect of him
00:41:07 no doubt the BS I would expect of him any question of a witness designed to tease out any acceptance of any failure to observe any aspect of the building or fire regulations we would suggest that
00:41:19 fire regulations we would suggest that the obligation to warn the witness would be in
00:41:22 be in aged mr. noodle kindest interrupt you sir I of course have had the benefit of your having set out this application in writing yes so that I can see the basis
00:41:37 writing yes so that I can see the basis upon which it's made the nature of the privilege which you say exists and what I found particularly helpful an indication of the sort of offenses that
00:41:48 indication of the sort of offenses that might be under consideration but those sitting in the room and those who are watching this perhaps elsewhere on the screen won't have had the benefit of that and I wonder whether you could help
00:42:00 that and I wonder whether you could help everyone by just outlining those aspects of the matter so that people who are listening to you can follow what you're saying and why you're saying it certainly mind no no not at all the only
00:42:12 certainly mind no no not at all the only question I would raise and for you to consider was that having offered my apology what I was going to do was to identify the more important of the
00:42:23 identify the more important of the points which arise and then provide some additional references to the authorities and the guidance hoping in that way that that will at least allow CTI and the BSR
00:42:36 that will at least allow CTI and the BSR teams and of course yourself to understand our position and then bring some focus to the points which will be addressed on Monday and I wonder whether that might be well you you take whatever
00:42:48 that might be well you you take whatever you think is the best course but I think at the moment you have to bear in mind that many of those who are listening to you yes don't have they're not lawyers and I imagine in the mail they don't have any context in which to place some
00:43:01 have any context in which to place some of the submissions you may be set how to make so certainly I leave it to you but I understand yes well can I then accept that invitation and highlight from the
00:43:14 that invitation and highlight from the application the essential features or of the letter and I'll provide paragraph numbers to that document at paragraph
00:43:27 numbers to that document at paragraph six we identify the fact that many of the witnesses to be called in phase two have been interviewed or invited to attend an interview under
00:43:38 or invited to attend an interview under caution by the Metropolitan Police in respect of a criminal investigation into the fire at Grenville tower we make the
00:43:49 the fire at Grenville tower we make the point that the nature of the police investigation is broad in scope is concerned with numerous potential offenses ranging from regulatory breaches to the most serious of criminal
00:44:01 breaches to the most serious of criminal offenses all of which carry potential custodian serving sentences and in furtherance of the primary purpose of
00:44:12 furtherance of the primary purpose of this public inquiry namely to fully examine the matters set out within the terms of reference and the table of issues we right to use to invite you to
00:44:24 issues we right to use to invite you to consider seeking an undertaking from the Attorney General preventing the use of evidence by witnesses to the public inquiry against them in any future
00:44:37 inquiry against them in any future criminal proceedings and at paragraph 8 we turn to the privilege and we write plainly without such an undertaking witnesses will be lawfully and
00:44:49 witnesses will be lawfully and reasonably entitled to rely on the privilege against self-incrimination and to refuse to answer any question if to do so would tend to expose them to proceedings for a criminal offense that
00:45:02 proceedings for a criminal offense that privilege having been described as a basic liberty of the subject and it's recognized by way of section 21 1 of the 2006 Act which draws upon section 14 of
00:45:16 2006 Act which draws upon section 14 of the civil Evidence Act 1968 which is in these terms and these are the important ones it is the right of a person in any legal proceedings other than criminal
00:45:28 legal proceedings other than criminal proceedings to refuse to answer any question or produce any document or thing if to do so would tend to expose that person to proceedings for an
00:45:39 that person to proceedings for an offense and then we go on to make a submission which I will extend in in due course that the scope of self-incrimination Brod and I'll come back to that and at
00:45:53 Brod and I'll come back to that and at the bottom of paragraph nine we also make thee or advance the submission but the privilege applies whether a witness has already been charged with an offense or is yet to be charged and then in
00:46:06 or is yet to be charged and then in paragraph ten we and suggest that the seeking of an undertaking from the Attorney General is an established way by which witnesses are able to give full and frank answers and permits the terms
00:46:20 and frank answers and permits the terms of reference for public inquiry to be investigated without delay and disruption to proceedings and we draw attention to a number of recent public
00:46:31 attention to a number of recent public inquiries where undertakings of a similar sort sought in this case were granted a paragraph 12
00:46:45 granted a paragraph 12 we deal in part with the matter that you raised with me a moment ago in other words the previous approach of the witnesses which was to provide rule 9
00:46:57 witnesses which was to provide rule 9 statements without any reference as you correctly observed to this privilege and then in terms of the proposed undertaking can I go to paragraph 16 and
00:47:11 undertaking can I go to paragraph 16 and perhaps I ought to read that out so and walkin and hear what it is and that we at least invite you to consider and seeking by way of undertaking from the
00:47:23 seeking by way of undertaking from the attorney and this replicates in largely replicates the undertaking which was granted in the recent Baja Musa inquiry and I quote from the document one know
00:47:37 and I quote from the document one know all evidence a person may get before the inquiry will be used in evidence against that person in any criminal proceedings or for the purpose of deciding whether to bring such proceedings save as
00:47:49 to bring such proceedings save as provided in paragraph two here in paragraph 2 paragraph one does not apply to Roman 1 a prosecution whether for a civil offense or a military
00:48:01 civil offense or a military offense where he or she is charged of having given false evidence in the course of this inquiry or having conspired with or procured others to do so or Roman - in proceedings where he or
00:48:13 so or Roman - in proceedings where he or she is charged with any offense under Section 35 of the inquiries act 2005 or having conspired with or procured others to commit such an offence and then in
00:48:24 to commit such an offence and then in the balance of the document we set out for you because I understand a very clear distinction between your works and that at the police in their parallel inquiry so there's no reason why you
00:48:36 inquiry so there's no reason why you would know about this I set out well we set out some of the offenses which are under consideration that the point being as you with your experience will see
00:48:47 as you with your experience will see immediately is that the ambit and the scope of these regulatory offenses it's very broad in terms of their structure and the offenses include section 3 or of the Health and Safety at Work Act so
00:49:01 the Health and Safety at Work Act so these are the duties of employers and the self-employed to persons other than their employee so that would obviously apply to the residence of Grenville tower section 7 the general duties of
00:49:13 tower section 7 the general duties of employees at work then section 33 which is the offense section of the 74 act 36 which is the thought provision 37 it is
00:49:29 which is the thought provision 37 it is the offense committed by the body corporate and those who may contribute to that offending being amongst the
00:49:42 possible criminal offenses which the individuals or sort of the Harley individuals have thus far being interviewed about and just to understand
00:49:54 interviewed about and just to understand where this takes us as far as individual witnesses are concerned I imagine it's section 7 that's Nike to bite more than
00:50:05 section 7 that's Nike to bite more than 63 would it be sensible just to read out section 7 a because and perhaps explain what that
00:50:16 because and perhaps explain what that could involve certainly so section 7 a the rubric is general duties of employees at work and the provision reads it shall be the duty of every
00:50:27 reads it shall be the duty of every employee while at work to take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions at work and other persons for
00:50:43 omissions at work and other persons for this purpose would obviously include his fellow employees yes but would it go wider than that it would go wider than life in fact that it would how far would it go well it could extend to almost
00:50:54 it go well it could extend to almost everybody apart from that which is excluded from the definition of the offense so would it be your submission that an employee of let's say Harley who
00:51:08 that an employee of let's say Harley who admitted to failing to do something or doing something carelessly which might affect a resident in the building would be arguably at least in breach of this
00:51:20 be arguably at least in breach of this section yes and it might even extend further in the circumstances of a fire to those who were to attend to deal with the fire and alike so it is it is a
00:51:34 the fire and alike so it is it is a provision which is extremely broad in terms of its application thank you and and I say this I know that the I know that the inquiry appreciates this this
00:51:46 that the inquiry appreciates this this legislation the 74 legislation is designed with reverse burdens and the like and to be risk-based to be
00:51:58 like and to be risk-based to be extremely difficult legislation in ordinary circumstances for both individuals and corporates to meet and certainly in a different context you would need to demonstrate that you had
00:52:09 would need to demonstrate that you had done all that was reasonably practicable to escape conviction thank you can i and then turn within the hope that this is and helpful to what are perhaps the more
00:52:23 and helpful to what are perhaps the more important of the points which emerge and as I said provides additional reference to to the authorities and the guidance in the hope that on Monday you will simply need to
00:52:36 that on Monday you will simply need to hear from those who have had so little notice rather than me or indeed other applicant yes and again and I was going to deal if it's convenient with the following areas and and there are six
00:52:48 following areas and and there are six areas firstly the scope of the protection against self-incrimination secondly whether the individuals are at an appreciable risk of prosecution and
00:53:02 an appreciable risk of prosecution and in that respect I can of course only deal with the position of the Harley individuals thirdly the breadth of the police investigation and sir your terms
00:53:14 police investigation and sir your terms of reference and then the tension that that gives rise to in respect of the protection for the relevance to the issue or of the provision of the rule
00:53:27 issue or of the provision of the rule nine statements five the position of the corporate bodies in the context of the present application and six the broadness of the suggested undertaking I
00:53:38 broadness of the suggested undertaking I hope in that way I will deal with the more obvious point of which arise and if I have not then of course I'll gladly answer any further questions so the the scope of self-incrimination having given
00:53:51 scope of self-incrimination having given you an example of questioning which would undoubtedly lead to a warning as we suggest that there was no obligation to answer it must be recognized as
00:54:03 to answer it must be recognized as already you have in your remarks yesterday morning that's day three page one of the transcripts lines 18 to 20 that the scope of self-incrimination is
00:54:14 that the scope of self-incrimination is broad as we have set out at section 9 of the application but there are further passages in the judgment of law justice Waller in Den norsk Bank the reference
00:54:27 Waller in Den norsk Bank the reference to which is 1999 Queen's Bench 2 7 1 along with further authorities on this point which I should draw attention so all have the opportunity to address
00:54:39 all have the opportunity to address these along with the rest of paragraph nine and the principle we would submit being that a witness is entitled to claim the privilege in respect of any piece of information or evidence on the
00:54:53 piece of information or evidence on the basis of which the prosecution might wish to establish guilt or decide to prosecute and at page two eight nine of denne north bank Lord Justice Wallet
00:55:05 denne north bank Lord Justice Wallet observed in these terms and I quote thus it is not simply the risk of prosecution a witness is entitled to claim the privilege in relation to any piece of
00:55:16 privilege in relation to any piece of information or all evidence on which the prosecution might wish to rely in establishing guilt and as it seems to me it also applies to any piece of
00:55:27 it also applies to any piece of information or evidence on which the prosecution would wish to rely in making its decision whether to prosecute or not it applies to any question which forms
00:55:39 it applies to any question which forms part of a series of steps towards a potentially incriminating conclusion and at page two eight five of the same judgment the court of appeal quoted with
00:55:53 judgment the court of appeal quoted with approval from a very old authority called Paxton and Douglas and the quotation is in these terms I find the distinctions between the questions supposed to have a tendency to
00:56:05 questions supposed to have a tendency to incriminate and questions to which it is supposed answers may be given as having no connection to other questions so very nice that I can only say the strong
00:56:17 nice that I can only say the strong inclination of my mind is to protect the party against answering any question not only that has a direct tendency to incriminate him but that forms one step towards it as to the latitude afforded
00:56:31 towards it as to the latitude afforded to the witness in this area there is the judgment of Mr Justice man in a case called Philips against News Group Newspapers limited 2010 the neutral
00:56:46 Newspapers limited 2010 the neutral citation of which is e WH C two nine five two
00:56:52 five two with the references in that decision to the very old case of boys bo IES and the more recent decision of the Court of Appeal in Rio Tinto's Inc
00:57:04 the Court of Appeal in Rio Tinto's Inc and Westinghouse Electric Company that's 1978 appeal cases five for seven and it may be that five seven four of that authority will be of particular
00:57:17 that authority will be of particular assistance at paragraph 23 there's a passage drawing from what is described as the classic statement or of the relevant level of risk in boys and that
00:57:30 relevant level of risk in boys and that insofar as is relevant is in these terms to entitle a witness to the privilege of not answering a question as tending to incriminate him the court must see from
00:57:41 incriminate him the court must see from the circumstances of the case and the nature of the evidence which the witness is called to give that there are reasonable grounds to apprehend danger to the witness from his being compelled
00:57:53 to the witness from his being compelled to answer then at paragraph 24 from Rio Tinto's Inc this and again I quote there is the further point once it appears
00:58:04 is the further point once it appears that a witness is at risk then great latitude should be afforded to him in judging for himself the effect of any particular question and I go move on a
00:58:16 particular question and I go move on a little it may only be and these are perhaps important worth words one link in the chain or only corroborated of existing material but still he is not
00:58:28 existing material but still he is not bound to answer if he believes on reasonable grounds that he could be used against him it is not necessary for him to show that proceedings are likely to be taken against him or would probably
00:58:39 be taken against him or would probably be taken against him it may be improbable that they will be taken but nevertheless if there is some risk of their being taken a real and appreciable risk as distinct from a remote or in
00:58:52 risk as distinct from a remote or in substantial risk and he should not be made to answer or to disclose the documents where there is a real and appreciable risk or an increase of an existing risk then his objection should
00:59:04 existing risk then his objection should I heard and then at paragraph 25 and drawn upon Lord Rascals judgment in Rio Tinto's Inc it was said I think that the right question is to ask that posed by
00:59:17 right question is to ask that posed by law justice Shaw on Friday afternoon can exposure to the risk of penalties or in other cases to the risk of prosecution from criminal offense be regarded as so far beyond the bounds of
00:59:30 regarded as so far beyond the bounds of Reason has to be no more than a fanciful possibility and then drawing that together this was the view expressed by Mr Justice man at paragraph 26 in
00:59:42 Mr Justice man at paragraph 26 in Phillips and again I quote thus considerable latitude is given to the person claiming the privilege and putting the matter slightly closed early he is entitled to the benefit of any
00:59:53 he is entitled to the benefit of any doubt so I turn next to the second of my headings the possibility of a prosecution which again is a judgment that you will have to consider it is
01:00:08 that you will have to consider it is clear we would submit that in respect of the witnesses on whose behalf the application is made that there does exist borrowing the language from the authorities a real and appreciable
01:00:21 authorities a real and appreciable danger of self-incrimination may I take the Harley witnesses there is a parallel criminal investigation in existence and the interviewing of the Harley men has
01:00:34 the interviewing of the Harley men has actually started four of them have already been interviewed those who have been interviewed were interviewed in a way which strongly suggests that further interviews as one would expect are to
01:00:46 interviews as one would expect are to come those of the Harley would this is not thus far interviewed have had no indication at all and nor realistically will they receive one that they will not
01:00:58 will they receive one that they will not be invited to interview in the coming months or years and in terms of the duration or of the parallel police investigation and whether that risk may
01:01:10 investigation and whether that risk may dissipate or disappear no decisions will be made by the police until at earliest when the evidence scattering stage of the inquiries work
01:01:22 scattering stage of the inquiries work is at an end so charging decisions are some years away and right through the course of phase two these individuals will remain
01:01:33 phase two these individuals will remain suspects in respect of who there is we would submit a real and appreciable danger of self-incrimination third the
01:01:45 danger of self-incrimination third the broadness of the scope of the police investigation of the inquiries terms of reference and the table of issues and
01:01:56 reference and the table of issues and the question whether it might be possible to limit the questioning of the witnesses at risk so as to remove the danger of self increment in criminais ssin which is bound to be an issue that
01:02:09 ssin which is bound to be an issue that you sir will want to reach a view about this is dealt with at paragraph 7 of the application and we make the submission for your consideration will it be quite
01:02:21 for your consideration will it be quite impossible without an undertaking from the attorney general of the typed sort for the enquiry to discharge its purposes and to provide the answers to
01:02:32 purposes and to provide the answers to the be SRS which they are plainly entitled to whilst at the same time providing the protection which is a matter of basic fairness the witnesses as we argue should be afforded can I
01:02:46 as we argue should be afforded can I explain the point the police investigation is very broad in terms of its scope the Metropolitan Police have declared either publicly or during the
01:02:58 declared either publicly or during the course of the interviewing process they are investigating a whole range of offenses some of which are set out at paragraph 16 of the application or of the application the offenses and we've
01:03:11 the application the offenses and we've sought to illustrate that by reference to some of those created by the Health and Safety at Work Act means and this is at paragraph 18 but in practical terms and the context of this fire any person
01:03:25 and the context of this fire any person who has failed to take reasonable care for the safety of another it's a criminal offense potentially punishable by a term of imprisonment but
01:03:36 punishable by a term of imprisonment but the investigation is not of course limited to 1974 Act offenses along with the health and safety of work Act there
01:03:47 the health and safety of work Act there are also a myriad of regulatory offences created by the building and the fire regulations some of which of course imposed strict liability the terms of
01:03:58 imposed strict liability the terms of reference has broken down and it hardly needs me to say this and set out in more detail in the list of issues and of course its issue for which most closely
01:04:10 course its issue for which most closely bears upon the position of the Harley witnesses are equally and very understandably broad and the result is as we submit and this is the tension
01:04:22 as we submit and this is the tension that requires resolution that any question which touches upon or may in combination with other material point to responsibility for an act or omission or
01:04:36 responsibility for an act or omission or which seeks an acknowledgment as to the awareness or not of the regulations or breaches of them gives rise to the risk of self-incrimination and there's a
01:04:49 of self-incrimination and there's a passage in Matthews and Agora C's book health and safety law and enforcement it's the fourth edition at paragraph 12
01:05:00 it's the fourth edition at paragraph 12 135 which puts the position even more starkly to which I should draw attention and that paragraph and I'll read it into the record is as follows in cases where
01:05:14 the record is as follows in cases where it is known a witness is being considered for prosecution or there is a possibility that he or she might be prosecuted it is arguable that any question he or she is asked touching on
01:05:26 question he or she is asked touching on the circumstances of the death including apparently innocuous ones such as who the witness works fall or what his or her role in a given company is may have
01:05:38 her role in a given company is may have a tendency to incriminate this is because in any health and safety process usually it'll be necessary for the Prosecuting Authority to show whom the individual work for and what was his or
01:05:51 individual work for and what was his or her role in the company so as we submit for your consideration sir work-related deaths give rise to the risk of
01:06:03 deaths give rise to the risk of prosecution in a particularly acute form because of the breaths of the criminal offenses which arises in that context and it is it is impossible we would
01:06:15 and it is it is impossible we would argue for any witness or indeed the inquiry to know or ascertain which offence might be considered or which evidential gaps might be filled by any
01:06:28 evidential gaps might be filled by any question posed at the inquiry equally we would suggest it is difficult to concede of any question asked of such a witness touching on his work at Grenville tower
01:06:40 touching on his work at Grenville tower which would not at least carry the risk of a mounting and I borrow the word from Rio Tinto's Inc to and I quote one link in the chain or being only collaborative
01:06:52 in the chain or being only collaborative of existing material so there is we would suggest for you to consider sir no sensible way of limiting the scope of
01:07:04 sensible way of limiting the scope of the questions if this inquiry is to deliver on its promise and to properly explore the issues which would involve the witnesses being able to speak freely
01:07:15 the witnesses being able to speak freely and honestly without the answer giving rise to a very real risk of prosecution this is the tension which exists although it is not an unusual situation
01:07:26 although it is not an unusual situation as the experience of a number of other recent public inquiries demonstrate and it is by way of an undertaking from the attorney general as we point out which
01:07:37 attorney general as we point out which has become the established way of resolving that tension with the following results and can I just set these out briefly first if there is an undertaking the witness is encouraged to
01:07:50 undertaking the witness is encouraged to give full and frank answers which have been called for and as is my understanding is the assistance the Harley witnesses wish to provide to your inquiry and as the late
01:08:04 provide to your inquiry and as the late Sir Christopher pitchford said when seeking an undertaking in the undercover policing inquiry and this is paragraph four of his ruling and access to this
01:08:16 four of his ruling and access to this can be gained from that inquiries website and I quote it is a commonplace that witnesses are more likely to be frank and honest with their Inquisitor
01:08:27 frank and honest with their Inquisitor if there will be no adverse consequences to them arising from their evidence such as the use of their evidence in a criminal prosecution secondly if there
01:08:40 criminal prosecution secondly if there were an undertaking it avoids the difficulty which the inquiry will otherwise have to confront particularly in respect of witnesses who are unrepresented of seeking to ensure they
01:08:53 unrepresented of seeking to ensure they understand the nature of the privilege and that they make effective use of it and having regard to the difficulty of asking questions which would not on one view engage the privilege it will also
01:09:06 view engage the privilege it will also avoid that issue arising repeatedly throughout the course of the examination by mr. millet and miss gray that's because in the ordinary way the witness
01:09:19 because in the ordinary way the witness if he wishes to rely on the privilege would have to do so after the question has been asked and before he answered it and the judge or in this case I would
01:09:31 and the judge or in this case I would have to decide on a question by question basis whether he should be required to answer or not yes it would be a very cumbersome procedure but that's what it would be yes and you have the point and
01:09:45 would be yes and you have the point and the point is it avoids the inevitable disruption to the smooth running of the inquiry and then finally in in terms of a consequence and perhaps of most importance to the inquiry and to the
01:09:58 importance to the inquiry and to the bereaved survivors and residents the provision of an undertaking in the terms sword is likely to assist ultimately in fulfilling the inquiries terms of
01:10:10 in fulfilling the inquiries terms of reference and in providing the be SRS but the answers they seek from the commercial CPS and those who worked for them and in that sense would be we would
01:10:23 them and in that sense would be we would suggest in the public interest and the reason for that is this if the undertaking in its terms is broad enough that removes of course the
01:10:35 enough that removes of course the ability to rely upon the privilege as a way of avoiding answering questions so whilst it may not have the appearance of something which will actually aid the
01:10:47 something which will actually aid the course of the inquiry my submission would be that on analysis that that is its purpose just M three short topics to deal with firstly the provision of the rule nine statements said said the point
01:10:59 rule nine statements said said the point you made to me and a little earlier reference was made to that very issue in our discussions with CTI on Tuesday evening to the provision of the rule
01:11:13 evening to the provision of the rule nine statements without any concern at that stage being raised or indeed later about the risk of self-incrimination being raised and we deal with that at
01:11:25 being raised and we deal with that at paragraph 12 of the application as you know drawing again on law justice Wallace judgment inden north bank it's at page two eight nine it's in these
01:11:36 at page two eight nine it's in these terms it's one thing for someone to make a statement to the police or anyone else which he might after would try to return retract it's quite another for him some time later be to be made to repeat any
01:11:48 time later be to be made to repeat any admission on oath in court in the presence of a judge and his lawyers it makes the potentially return retractable impossible to attract if there is a risk
01:11:59 impossible to attract if there is a risk of self-incrimination and if there is no bad faith a no increase in risk must be almost impossible to establish so we would suggest that the fact that a
01:12:10 would suggest that the fact that a witness has previously given an account in a statement in den north it was to the police does not mean there is no increase in the risk if that witness is late
01:12:20 late required to answer questions about or even to confirm its accuracy under oath it's right isn't it to point out for the
01:12:31 it's right isn't it to point out for the benefit of others that the statement that's already been made and signed I think possibly was a statement of truth attached to it will still stand as evidence yes it is may or may not have
01:12:44 evidence yes it is may or may not have the same weight as evidence given from the witness box but it's there still in evidence yes and in terms of the criminal proceedings would be admissible against the maker of the statement
01:12:56 against the maker of the statement regardless of any undertaking that you consider to be appropriate yes I agree and the position of the body's corporate and and I make this submission in light
01:13:08 and and I make this submission in light of some of the assertions made about the lateness of the application and that being some sort of device which is to
01:13:19 being some sort of device which is to the advantage of the companies it is important to understand what is not being sought there is no question of immunity from prosecution for
01:13:32 immunity from prosecution for individuals or corporates being sought as was reported yesterday and overnight there is no power to do that and that is
01:13:43 there is no power to do that and that is not what the application seeks as I know that you sir understand the undertaking if obtained would simply prevent the use against and I underline the word an
01:13:55 against and I underline the word an individual who gave evidence at the inquiry if there is other evidence against him and a charge is justified against the code for prosecutors then of
01:14:07 against the code for prosecutors then of course he may be prosecuted similarly there is no prohibition on the reliance upon evidence given by a witness against another person if the evidence is
01:14:19 another person if the evidence is admissible and perhaps importantly from my position and the company I represent neither wouldn't undertaking provide any protection to a corporate CP in any
01:14:32 protection to a corporate CP in any subsequent prosecution the company cannot seek any sort of ruling about self-incrimination and does not seek that and finally and I've got
01:14:44 not seek that and finally and I've got the broadness of the undertaking because you will want to consider carefully if you are minded to accept the application we make how broad the undertaking should
01:14:58 we make how broad the undertaking should be and whether you should seek from the attorney and undertaking in the terms of the proposed draft for your consideration or on this issue it might
01:15:10 consideration or on this issue it might assist to have reference to the note on submissions prepared prepared by counsel to the undercover police inquiry which is an extremely helpful document in a number of respect as I say that too is
01:15:23 number of respect as I say that too is available on the website for that inquiry and it's paragraphs 27 to 69 and the analysis of the terms of the undertakings obtained in many recent
01:15:36 undertakings obtained in many recent public inquiries where this issue has arisen risen which may be of particular interest there are also examples where different approaches were taken at paragraphs seventy to seventy seven but
01:15:51 paragraphs seventy to seventy seven but it may be helpful on the question of the proposed scope of the undertaking that you sir are asked to consider to read from paragraph 27 of CGI's note in that
01:16:04 from paragraph 27 of CGI's note in that inquiry and that is in these terms and I quote analysis of examples of statutory public inquiries over the last 20 years
01:16:17 public inquiries over the last 20 years indicates that although undertakings have been sought in the majority of cases it is not always being considered necessary where undertakings have been sought and granted there is an apparent
01:16:29 sought and granted there is an apparent shift from the tendency to seek narrow undertakings aimed at assuring witnesses that there will be there will not be any direct use in criminal proceedings of any evidence they give to the inquiry to
01:16:41 any evidence they give to the inquiry to a more recent tendency to seek broader undertakings to give assurance against the derivative use of a witness's evidence the Broadus of the
01:16:52 witness's evidence the Broadus of the derivative the derivative use undertakings are at least equal in scope to the privilege against self incrimination and importantly these words and therefore leave no need or
01:17:05 words and therefore leave no need or basis for reliance upon privilege at the inquiry concerned and they go on then to deal with an immunity and the like but I
01:17:17 deal with an immunity and the like but I draw and selectively from the paragraph so others will have to read and the whole thing and my position in support of the proposed undertaking is that the
01:17:30 of the proposed undertaking is that the undertaking of that sort is appropriate for these four reasons one the terms of reference in this inquiry and the detail of the issues are set out in the list of
01:17:41 of the issues are set out in the list of issues are broad to the matters to be investigated in order to discharge the terms of reference plainly we suggest indicate that questioning will need to
01:17:52 indicate that questioning will need to touch on matters which seems certain to engage the privilege absent an undertaking of the sort sort thirdly it will be better to seek a broad undertaking in terms of its wording to
01:18:04 undertaking in terms of its wording to avoid the danger of too narrow an undertaking being sought which might leave the scope of privilege still to be asserted which would not then avoid the problem which we have identified and
01:18:18 problem which we have identified and three if an undertaking is to be sword it should not preclude a prosecution for an offence relating to the evidence given to the inquiry itself for example perjury or any other of the offenses
01:18:30 perjury or any other of the offenses committed and contrary to section 35 or of the Act which governs this inquiry I'm going to pause that because those
01:18:42 I'm going to pause that because those are the six areas I sought to add to and if there is a court anything else I can deal with at this stage that then of course I will seek to do so well I just have one question at the moment about
01:18:54 have one question at the moment about the terms of the proposed undertaking I thank you I noticed that the in paragraph 2 1 the provision is made for
01:19:06 paragraph 2 1 the provision is made for a prosecution for a military offense and I was like that sir that is no beside that's an error I won't could just take out the words in
01:19:17 I won't could just take out the words in brackets yes that would be yes that is a better draft Thank You mr. Laidlaw
01:19:35 better draft Thank You mr. Laidlaw that's very helpful thanks thank you very much indeed will you be here on Monday yes I will it may be that I shall need to trouble
01:19:46 it may be that I shall need to trouble you again because you've laid out the case very fully yes and if I may say so it very helpfully both for me and for those listening it's right that I should say that the application has been
01:19:58 say that the application has been supported by quite a large number of other witnesses or potential witnesses and core participants but none of them
01:20:10 and core participants but none of them asked to make oral submissions in in support of it I think they would happily adopt what you said that's as I understand it yes that is my understanding too so so I think as far
01:20:23 understanding too so so I think as far as you're concerned I just please for me to thank you very much for assistance it's not as I say I will be here where we go on Monday yes I'll be here on Monday as long as you require because as
01:20:34 Monday as long as you require because as you know I've already directed that I will not hear counsel for the bereaved survivors and residents until Monday because to give them well essentially to
01:20:45 because to give them well essentially to give them a chance to take proper instructions I entirely understand it and of course mr. millet who may wish to say something about it will have to come after them yes of course right thank you very much indeed well that concludes the
01:21:01 very much indeed well that concludes the work we have for today we don't sit on Fridays so we shall be sitting tomorrow we're going to sit again on Monday now we were going to hear witnesses on
01:21:13 we were going to hear witnesses on Monday but for the reasons which I think you all now clearly understand we won't be doing that on Monday morning our here submissions from counsel for the bereaved survivors and resident corps
01:21:26 bereaved survivors and resident corps participants and from counsel to the inquiry and at that point we'll see where we are and what we do next I think it's I could say with some confidence
01:21:37 it's I could say with some confidence that not only should we not hear evidence on Monday but as things stand we shan't hear evidence on Tuesday either whether we have to put things back further may depend in part on the
01:21:49 back further may depend in part on the outcome of this application anyway thank you all for being here I look forward to seeing you on Monday yes what do you
01:22:06 seeing you on Monday yes what do you want to be heard on this I I I don't think we'll have you decided whether you want to be heard or not
01:22:26 yes I mean you you're in a slightly I come up to the desk because you went beyond on the screens if you do so I was
01:22:37 beyond on the screens if you do so I was very struck by the fact that none of the people whom you support have been members of Fire Brigades Union we're at all unwilling to give evidence as fully
01:22:48 all unwilling to give evidence as fully as they were asked to yeah I think much to be commended whether we shall be expecting to hear from any members of
01:23:00 expecting to hear from any members of the Fire Brigades Union in Phase two I'm not quite sure the moment it's possible because we have got a module the fire service but I think it's mostly going to be concerned with more senior people yes
01:23:12 be concerned with more senior people yes [Music]
01:23:13 [Music] that's likely well you might like to consider whether whether you have much of an interest in this application but yes you do if you think you do then
01:23:26 think you do then probably thank you sir thank you thank you and I suppose I should have mr. Walsh's I was there in the corner is
01:23:37 Walsh's I was there in the corner is only you want to say mr. Walsh yeah please please feel free to do so all right thank you right thank you all very much
01:23:47 much ten o'clock on Monday