Procedure

The purpose of this document is to set out in broad terms the general approach the Inquiry will take to fulfilling its terms of reference. It is not intended to be exhaustive, and furthermore the Inquiry will retain flexibility to deal with matters as they arise. It addresses the following questions

How does the Inquiry perceive the Terms of Reference in practice?
How will the public hearing be conducted?
How will representation and public funding be decided?
How will witnesses be approached?
Will witnesses and interested parties be able to claim anonymity for themselves and public interest immunity for their documents?
Who should interested parties contact?

Terms of Reference

The terms are “to inquire into the death of Robert Hamill with a view to determining whether any wrongful act or omission by or within the Royal Ulster Constabulary facilitated his death or obstructed the investigation of it, or whether attempts were made to do so; whether any such act or omission was intentional or negligent; whether the investigation of his death was carried out with due diligence; and to make recommendations”

Those terms appear to raise the following core issues:

Could and should the RUC have done more to avert Robert Hamill’s death by way of better policing provision on the night of 26th / 27th April 1997?

If so, was the failure to make that provision negligent or deliberate?

Could and should the RUC officers at the scene of the attack on Robert Hamill have done anything, or refrained from doing something, so as to prevent his death?

If so, was the act or omission negligent or deliberate?

Could and should RUC officers present at the scene have done more to identify and facilitate the prosecution of perpetrators?

If so, was the omission negligent or deliberate?

Did any RUC officer attempt to obstruct the investigation of the death of Robert Hamill?

If so, was any such obstruction successful?

Could and should the RUC have done more to investigate Robert Hamill’s death and any attempted obstruction into the investigation itself?

If so, was the omission negligent or deliberate?

What recommendations should be made.

The conduct of the public hearing

The Chairman is not intending to prescribe any rigid rules for the progress of the hearing. However, the following matters are fundamental to the entire Inquiry:

The panel will not see witnesses or interested parties otherwise than in the course of the hearing;

The hearing will be in public save insofar as is necessary to protect the human rights of any witness or interested party. This is discussed below under the heading of anonymity and public interest immunity;

The Inquiry is intended to be “paperless”. Statements and other materials will be used in electronic form and viewed on screen at the hearing. Transcripts of evidence will be provided electronically;

The evidence at the hearing will primarily be given by witnesses called by Counsel to the Inquiry. Written evidence will generally be received in evidence only where it is uncontroversial. The Panel will consider a witness’s statement where it differs from or adds to his evidence;

When a witness, for whatever reason, does not attend to give oral evidence it is likely that his statement will be considered as part of the evidence, though it may be necessary to hear submission about this on a case by case basis. In considering what weight, if any, is to be attached to it, the Panel shall keep in mind the fact that the witness has not attended to be questioned and the reason for that. The statement will be considered in the context of any other evidence on the same issue;

The Inquiry will report to the Secretary of State. It may be necessary for it to consider evidence which has not been given publicly, and such evidence may feature in its report. It will be for the Secretary of State to decide on what redaction, if any, should be made prior to publication. However, before receiving evidence otherwise than in public the Panel will hear submissions from Counsel to the Inquiry and may also give interested parties the opportunity to make submissions;

All persons who may have information material to the Inquiry are invited to make it known to the Inquiry team. Written representations about matters which interested parties believe should be taken into account are also welcomed. The procedure is set out below under the heading of points of contact;

Witnesses and interested parties will be given such copies of materials intended to be placed before the panel and used at the hearing, including witness statements, as is considered necessary by the Inquiry. It is intended to provide that material electronically. It will be provided subject to a confidentiality agreement restricting its use to purposes connected with the Inquiry;

Representatives of interested parties and of other witnesses may be permitted to cross-examine witnesses, at the Chairman’s discretion;

Representatives of interested parties and of other witnesses may be permitted to make closing submissions, at the Chairman’s discretion.

Representation and public funding

There are no rigid rules about who will be entitled to representation. The Chairman will decide all applications on their merits, and will also decide what part legal representatives may play in the hearing. The procedure for making an application prior to the hearing is set out on the website.

It may be possible for interested parties to be represented at public expense for all or part of the proceedings at the public hearing. Public funding may also be available for other stages of the Inquiry. An application form may be downloaded or obtained by writing to the Secretary to the Inquiry, Robert Hamill Inquiry, PO Box 50156, London SW1E 6WX.

The Secretary of State has announced that where witnesses are called to give evidence to the Inquiry the reasonable cost of their legal assistance will be met from the public purse, to enable them to prepare for, and deliver, their evidence. Prospective witnesses should submit an application in the form contained on this website.
The cost of legal assistance will be met from the public purse upon written application being made to the Inquiry in accordance with the relevant procedure. The Inquiry recognises that the degree of assistance which it will be reasonable to fund from the public purse will vary according to a witnesses’ expected participation in the Inquiry.
The costs of assistance which will be met from public funds will be subject to terms to be agreed in advance of any work being undertaken by the Solicitor to the Inquiry and the witness and to the general provisions of the Inquiry’s Costs Protocol.

How will witnesses be approached?

Potential witnesses will be contacted by the Inquiry team and will be asked for one or more interviews. They will be given prior written notice of the issues to which any interview will relate. In the course of the interview process they will be given full opportunity to comment on any material in the possession of the Inquiry which relates to them. They may be legally represented at interviews.

The interviews will be conducted by Counsel retained by the Inquiry for the purpose, or by the Assistant Solicitor to the Inquiry.

Anonymity and public interest immunity

This is a Public Inquiry, and its proceedings will be conducted in public save to the extent that to do so will infringe the human rights of any witness or interested party. The Inquiry team are in possession of full identities, and may be required to reveal those identities to witnesses in order to take statements. It is possible that some people affected by that exercise may wish their identities to be withheld.

The following procedure will be adopted:

Anonymity Applications - Procedure

Application on the Papers

Receipt of application.
If Counsel to the Inquiry expresses a view on the application to the Chairman, and it is adverse to the applicant, it will be sent to the applicant for comments.
Applicant to submit comments to the Inquiry within 14 days of the date of the letter informing him of any such comments.
Chairman to make a preliminary decision as to whether he is minded to grant the application and, if he is, to prepare a suitably edited version of his ruling (to the extent that this does not place the anonymity in jeopardy).
If its effect is to grant the application in whole or in part:

a. the ruling is to be sent to the applicant as the Chairman’s preliminary decision
b. an edited version of the ruling is to be sent to interested parties
c. comments by any interested party to be sent to the Inquiry within 7 days of the date of such a letter.
d. Chairman to make a decision, giving his reasons
e. decision sent to applicant and interested parties.

If the application is refused or is allowed only in part, the applicant has the right to make an oral application to the whole Panel within 14 days of the date of the letter.
In the alternative to his right to make an oral application to the whole Panel the applicant may instead make further written representations to the Chairman within 14 days of the date of the letter referred to in paragraph 6 above. In that event the Chairman will review his decision, the procedure set out in paragraphs 1 to 5 above will apply to the review, and after he has conducted his review the Chairman will issue a further decision to the applicant and to the interested parties.
Interested parties may within 14 days of being informed of the grant of anonymity or screening to a witness (made under paragraph 5 above) request the Chairman to permit an oral application to be made to the whole Panel to challenge that grant. The Chairman will decide whether to exercise his discretion whether to permit such an application to be made.
Any grant of anonymity or screening is subject to review if, at any stage in the Inquiry proceedings, a witness contends that it would be unjust to withhold from him the identity of a person granted anonymity

Oral Hearing

The applicant will be given notice of the date and venue of the oral hearing.

If this can be done without jeopardizing the applicant’s anonymity, interested parties will be also informed of the date and venue of the oral hearing.
If they have been so informed, interested parties will be entitled to attend but, how much they can be told and to what extent there can be an inter partes hearing of the application will have to be decided on the occasion of the oral hearing in the light of the issues to be considered. They will, if so informed, be entitled to address the Panel inter partes. The aim will be to adopt a flexible approach so as to facilitate proceedings and a decision which is fair to all parties.
The applicant will be provided with the information arising from paragraph 3 above.

The view of Counsel to the Inquiry will be obtained by the Chairman throughout the application procedure to assist him and in the case of an oral hearing, the Panel.

Questioning of witnesses - Protocol

When the Robert Hamill Inquiry was established it was made clear that witnesses were to be questioned by Counsel to the Inquiry.
In its published procedure the Inquiry announced that evidence would primarily be led by Counsel to the Inquiry and that the Chairman may in his discretion permit questioning by others.
It follows that, ordinarily, witnesses will be called by Counsel to the Inquiry. If an interested party or a witness wishes to have a witness called to give evidence whom Counsel to the Inquiry is not proposing to call, he or she should in the first instance ask Counsel to the Inquiry to call the witness. If Counsel declines to do so then application may be made to the Chairman to call that witness, or to have Counsel to the Inquiry call the witness.
If a witness or interested party wishes to have a line of questioning put to a witness who is called by Counsel to the Inquiry then that line of questioning should be provided to Inquiry Counsel. If and to the extent that Counsel to the Inquiry does not pursue that line, or in the event that issues arise out of examination of a witness by Inquiry Counsel, any witness or interested party may apply to the Chairman for permission to question the witness.
The Inquiry does not propose to set rigid criteria for the method by which, or the time within which, notification should be given to Inquiry Counsel or applications made to the Chairman in respect of the matters set out above. The overriding objective as the following paragraphs seek to make clear is to ensure that all relevant evidence is adduced as efficiently as possible.
In so far as a line of questioning can be envisaged before the witness is called notice should be given to Inquiry Counsel in sufficient time before the witness is called for the request to be considered. The object of this is to save delay and the consequent cost to the public purse which would result if a notice which could and should have been given sooner is not given in sufficient time.
It is appreciated that as a result of answers given to Inquiry Counsel further lines of questioning may seem to open up and notice will then need to be given. In general it will be more appropriate to allow Inquiry Counsel to conclude his or her questioning before notice is given but this, as is clear from the use of the phrase "in general", is not intended to be inflexible. It must be stressed, though, that nothing contained in this paragraph is intended to encourage a lax attitude towards compliance with paragraph 6 where this is possible.

Public interest immunity

If any person or body has provided material to Justice Cory or to this Inquiry for which public interest immunity is claimed, the following procedure will be adopted:-

PII applications - Procedure

Application on the papers

Receipt of PII application.
Counsel to the Inquiry’s view sent to the applicant for comments.
Applicant to submit comments to the Inquiry within 14 days of the date of the letter informing him of those comments.
Chairman to make a preliminary decision as to whether he is minded to grant the PII application and, if he is, to prepare a suitably edited version of the PII application (if this does not place in jeopardy the PII in issue).
Edited version of the PII application to be sent to applicant and any comments he wishes to make must be received by the Inquiry within 14 days of the date of the letter providing him it.
Chairman to consider the applicant’s comments and to make any necessary amendments to the edited version of the PII application.
Edited version of the PII application, incorporating any amendments, to be sent to the applicant and to any interested party and to any witness likely to be affected by the application.
Comments by any interested party / witness to be sent to the Inquiry within 14 days of the date of the letter.
Chairman to make a decision, giving his reasons.
Decision sent to applicant who, if his application is refused or allowed only in part, has the right to make an oral application to the whole Panel within 14 days of the date of the letter.
Copy of the decision, edited, if necessary, to protect the PII in issue, to be sent to any objector if the Chairman has granted the PII application. If the Chairman has refused the PII application in its entirety, the Inquiry will simply inform the objector of this fact.

ORAL HEARING

The applicant will be given notice of the date and venue of the oral hearing.
If this can be done without jeopardizing the PII in issue, objectors will be also informed of the date and venue of the oral hearing.
If they have been so informed, objectors will be entitled to attend but, how much they can be told and to what extent there can be an inter partes hearing of the application, will have to be decided on the occasion of the oral hearing in the light of the issues to be considered. They will, though, be entitled to address the Panel inter partes. The aim will be to adopt a flexible approach so as to facilitate proceedings and a decision which is fair to all parties.
The applicant will be provided with the information arising from paragraph 3 above.

The view of Counsel to the Inquiry will be obtained throughout the PII application procedure

Points of contact

The primary point of contact between the Inquiry and interested parties in general will be the Inquiry Solicitor or Secretary. Insofar as such parties are likely to give evidence to the Inquiry then their point of contact will be the Assistant Solicitor, whose dedicated function is witness-handling.

Some parties may wish to meet Counsel to the Inquiry and to put forward any views or material which they wish Counsel to bear in mind. The Hamill family members fall into that category. Any other approach will be considered on a case by case basis, bearing in mind that one of the purposes of the Inquiry is to reach the definitive conclusions on the matters set out in the terms of reference and that a number of people and bodies may have deeply-held views which they wish to convey to it.

Counsel to the Inquiry will make it plain to anyone that they meet that they are meeting them on their own account and not on behalf of the panel, and that they are unable to make any commitment to pursuing any particular line of investigation or attack which they may wish to be pursued.