The inquiry is being held under the Inquiries Act 2005. The Terms of Reference require the inquiry to consider the "extent to which State and non-State institutions have failed in their duty of care to protect children from sexual abuse and exploitation." The terms go on to state that - "It is not part of the Inquiry’s function to determine civil or criminal liability of named individuals or organisations. This should not, however, inhibit the Inquiry from reaching findings of fact relevant to its terms of reference."
13 cases have been selected for investigation at this stage and those include one against a named individual - the late Lord Janner of Braunstone QC. That raises the issue as to just what facts may be determined about Janner without encroaching on to the forbidden territory of deciding liability.
Finding of facts:
The Inquiry website - Investigation into allegations of child sexual abuse involving Lord Janner of Braunstone QC states: "The Inquiry will examine the factual basis for the allegations against Lord Janner and will seek evidence and submissions from all relevant parties in order to make findings of fact where appropriate. The Inquiry may also consider the extent of any institutional failures to protect children from abuse. Institutions falling within the remit of the investigation will include Leicestershire County Council, a number of care homes, the police, the Crown Prosecution Service, the Labour Party, and the security and intelligence agencies, and others."
Janner's case was considered by the Inquiry on 26th July 2016 - Transcript of Preliminary Hearing. The Janner family see the process as unfair and wrote to the inquiry about it. At the preliminary hearing, counsel to the inquiry (Ben Emmerson QC) sought to address this. His submissions commence at page 9 line 23 of the transcript.
On page 11 (Lines 1 to 5) Emmerson stated that the inquiry is not to be inhibited from discharging its fact-finding functions by the likelihood of civil or criminal liability being inferred from the facts that it determines. He went on (page 12) to say that in this particular investigation, the description of the inquiry's scope requires the Chair and Panel to determine whether the allegations against Lord Janner are well-founded, the extent to which there may have been institutional failures to protect children from abuse, and the extent to which there may have been institutional failures to respond properly to reports, complaints or signs of abuse.
Emmerson continued to say that fact-finding has to be connected to an allegation of institutional failure and must be relevant to the determination of that allegation (page 12 lines 22-25). The inquiry would only make findings of fact against Janner if - (1) the finding is relevant to the discharge of the inquiry's overall terms of reference; (2) the finding is "open and available" on the evidence and (3) it is fair in all the circumstances to make the finding and fairness required it to be taken into account that Janner could not respond to the allegations.
It will not be until the end of the process that a decision can be made as to whether a finding of fact is relevant, available and fair. Further, there is no fixed standard of proof (page 13 line 25) though it is usual in inquiries for it to be stated to what degree the inquiry is satisfied that a particular event occurred (page 14).
Examination of witnesses is normally by counsel to the inquiry but affected parties could apply to ask questions directly and such a request should be granted if fairness requires it.
A restriction order?
Leicestershire Police applied to the inquiry for a "Restriction Order" under section 19 of the Inquiries Act 2005. The Inquiry website simply states that this was refused.
The application is recorded in the transcript of the hearing of 26th July - see page 43 (time 12.21). The Inquiry Chair appears to have been taken by surprise at this application and referred to having to decide a difficult application "on the hoof." There are times when the Police have concerns about details of investigations being made public because it can alert people and lead to them trying to thwart the investigation.
The inquiry chair is receiving some criticism over her handling of this application. I will leave it to the reader to assess that - I recommend a reading of the transcript from page 43 onwards.
Receipt and Handling of Documents and the Redaction of Documents:
See the Inquiry protocol on the Receipt and Handling of Documents
See the Inquiry protocol on the redaction of documents
Older post on Lord Janner:
Lord Janner's case was sent to the Crown Court for trial on 14th August 2015 but he died in December 2015 and so a criminal trial could not be held.
Institute for Government - The role of public inquiries