The High Court has today handed down judgment in R (EA and Anor) v Chairman of the Manchester Arena Inquiry [2020] EWHC 2053 (Admin) refusing permission for judicial review to a group of survivors who unsuccessfully sought core participant status in the forthcoming inquiry into the Manchester Arena bombing attacks. A full legal analysis of the decision will follow. This article provides a summary of the judgment and its context.

Inquiries and inquests into public disasters and terrorist attacks inevitably, and rightly, focus on those who died. But what of the many who are injured, and whose lives will be transformed as a result of the events? What role should they play in the public investigation that follows?

This is an issue that has arisen on many occasions, sometimes resulting in actual or threatened litigation (see, for example, the 7 July 2005 Inquests, and, in very different circumstances, the 2014-2016 Hillsborough Inquests). Survivors will often be important witnesses, and increasingly inquiry chairs and coroners seek to provide support and assistance to them when providing their accounts. Some inquiries and inquests see putting such accounts into the public domain as part of their role, allowing the world to understand what happened and the effects of what happened. The harder question, though, is whether the survivors should have full legal representation and rights to disclosure and questioning, equivalent to those given to the families of the deceased.

It was this question that was addressed in this case. The claim was brought on behalf of a group of survivors of the Manchester Arena bomb attacks. The Inquiry into those attacks is due to open in September. The survivors involved in the case sought core participant status, which brings with it certain rights and, in practice, state-funded legal representation. The Chair of the Inquiry, Sir John Saunders, determined that they should not be granted such status, not least because their interests were so similar to those of the families of the deceased, who are core participants and are legally represented at the Inquiry. He emphasised the important role that survivors would play as witnesses and made provisions to assist them in that role. The survivors sought permission to review his decision.

In a robust judgment, the High Court (Sharp PQBD and Garnham J), refused permission. A full legal analysis will follow on this blog, but the key points are these.

  1. The application for judicial review was brought too late. The Inquiries Act 2005 [s.38(1)] provides that any judicial review must be brought within 14 days, a deliberately tight timetable that the Court held was justified and important to the effective conduct of public inquiries. Time ran from the Chair’s initial decision on this point; an attempt by the Claimants to evade this by entering into correspondence about that decision was firmly rejected. The Court refused to extend time, and stressed that this limitation point was sufficient on its own to dispose of the application.
  2. The Inquiry was bound by its Terms of Reference, which referred only to those who died in the attacks and not to the survivors. The Claimants’ attempt to rely on their rights under article 2 and 3 ECHR for an investigation into an attack in which they almost died was therefore fundamentally flawed. That was not the Inquiry’s role, and the Terms of Reference could not be creatively interpreted to make it the Inquiry’s role. If the state had an ongoing obligation to the Claimants to investigate how they came by their injuries, then the Claimants had to look elsewhere for it to be fulfilled.
  3. In any event, the Claimants’ rights under article 2 and 3 did not require them to have full core participant status, or legal representation. They were injured in an attack by a non-state actor. While there are arguments about the state’s liability for failing to prevent the attacks, or to respond to them adequately, these have been examined in a number of reports and investigations. A criminal trial of the bomber’s brother has taken place, resulting in a conviction, and civil proceedings are (in theory) open to the Claimants. Looking at the full picture of the investigations undertaken by the state, the Court held that there was no obligation on the Chair of the Inquiry to accede to the request for core participant status at his Inquiry.
  4. The Chair’s decision to refuse such status was rational. It took into account all relevant factors and included no irrelevant ones. He correctly focussed on what he needed in order to discharge his Terms of Reference.

The judgment falls squarely within a line of (relatively) recent decisions that emphasise the discretion that an inquiry chair has in conducting his or her inquiry, and the need for a timely and compelling challenge: see, among other examples: R (Decoulos) v The Leveson Inquiry [2011] EWHC 3214R (Associated Newspapers Ltd) v The Rt. Hon. Lord Justice Leveson (As Chairman of the Leveson Inquiry) [2012] EWHC 57 (Admin)R (Da Silva) v Sir John Mitting (sitting as Chairman of the Undercover Policing inquiry) [2019] EWHC 426 (Admin), and R (Bates and anr) v Sir Brian Langstaff, Chairman of the Infected Blood Inquiry, [2019] EWHC 3238 (Admin).

While it will no doubt be a considerable disappointment to the Claimants involved, it should not be thought that survivors do not matter to such inquiries and inquests. They do, and increasingly efforts are made to facilitate and support their engagement. However, a chair is entitled to conclude that more lawyers may not always be the best way of achieving this.

Matthew Hill is a barrister at 1 Crown Office Row

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