Sir John Saunders Chairman of the Manchester Arena Inquiry v Ben Romdhan (Previously known as Ismale Abedi)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Sweeney |
| Judgment Date | 07 December 2021 |
| Neutral Citation | [2021] EWHC 3274 (Admin) |
| Docket Number | Case No: CO/3631/2021 |
| Year | 2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 3274 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Manchester Civil Justice Centre
THE HONOURABLE Mr Justice Sweeney
Case No: CO/3631/2021
Mr Paul Greaney QC and Mr Nicholas de la Poer QC for the Applicant
Miss Rebecca Filletti (Instructed by Levins Solicitors) for the Respondent
Hearing date: Friday 26 November 2021
Approved Judgment
The Hon.
Introduction
The Manchester Arena Inquiry was established by the Home Secretary on 29 October 2019. It is an investigation into the circumstances in which Salman Abedi detonated an improvised explosive device in the City Room within the Victoria Exchange Complex in Manchester on 22 May 2017, murdering 22 people and injuring hundreds more.
The Inquiry's Terms of Reference require the investigation, among other things, of the radicalisation of Salman Abedi and the circumstances in which the bomb was prepared and assembled.
Salman Abedi did not act alone. In March 2020 his brother, Hashem Abedi, was convicted of the murders and of numerous attempted murders. He was later sentenced to life imprisonment with a minimum term of 55 years.
On 22 July 2021, acting under the provisions of section 21(1)(a) of the Inquiries Act 2005 (“the Act”), and against the background of numerous communications between the Inquiry and the Respondent over the preceding 14 months, the Chairman of the Inquiry, Sir John Saunders, issued a Notice to the Respondent, who is the older brother of Salman and Hashem Abedi, requiring him to attend the Inquiry on 21 October 2021, in order to give evidence.
On 29 August 2021 the Respondent left the jurisdiction, did not return, and thus failed to attend the Inquiry as required.
In the result, on 26 October 2021, the Chairman, acting under the provisions of section 36(1)(a) of the Act, certified that the Respondent had failed to comply with the Section 21 Notice issued on 22 July 2021, and applied to this Court for a bench warrant directing the arrest of the Respondent. The warrant ultimately sought had two particular features:
(1) It was returnable to the Inquiry Hearing Room.
(2) It would expire on the date that, in accordance with section 14 of the Act, the Inquiry ended.
The application for a bench warrant was supported by a witness statement, dated 26 October 2021, made by Mr Timothy Suter, the Solicitor to the Inquiry. I append a copy of his statement to this judgment.
I heard the application on 26 November 2021. The Respondent who, it is believed, remains abroad, was represented. He did not dispute the legality of the issue of the Section 21 Notice, nor the fact that he was in breach of it. Equally, he accepted that enforcement of a Section 21 Notice is by means of certification of the matter by a Chairman under section 36 of the Act, and that the powers of the High Court include, potentially at least, the power to issue a bench warrant.
Nevertheless, the Respondent opposed the application on three grounds, namely that:
(1) It was unnecessary and disproportionate.
(2) It defeated the purpose of the Act, because it was contrary to the purpose of section 36.
(3) Any order would be unenforceable because the Respondent was out of the jurisdiction.
Having heard submissions on behalf of both parties, I granted the application and issued a warrant in the terms sought. These are my reasons (which I reserved) for doing so.
Outline Legal Framework
Section 17 (3) of the Act provides that, when making any decision as to the procedure or conduct of an Inquiry, the Chairman must act with fairness and also with regard to the need to avoid unnecessary costs.
In relation to certification and warrants my attention was drawn to a number of authorities, in particular the following (all at first instance):
Paisley, Re Section 36 of the Inquiries Act 2005 [2008] NIQB 158; Re Ian Paisley Junior [2009] NIQB 40; Hanson v Carlino [2019] EWHC 136; Moore-Bick v Mills [2020] EWHC 618 (Admin); Saunders v Taghdi [2021] EWHC 2785 (Admin); Saunders v Taghdi [2021] EWHC 2878.
It was common ground that those cases variously decided that:
(1) Whilst the decision of the Chairman must carry weight, or considerable weight, this Court must give due and proper consideration as to whether or not it is appropriate to make an enforcement order.
(2) Section 36 is remedial in nature and calculated to secure compliance — with the focus being on obtaining the relevant information rather than punishment.
(3) Issuing a bench warrant is an extreme remedy, and must only be done when it is “necessary” – with the test being one of necessity and proportionality, which involves the weighing up of the competing interests.
Factual Background
The factual background is set out in detail in Mr Suter's witness statement. It suffices to highlight the following:
(1) On 28 May 2020 Mr Suter wrote to the Respondent requiring that, by 22 June 2020, he provide a witness statement to the Inquiry, dealing with the 39 topic areas specified by Mr Suter. There was no response.
(2) On 7 July 2020 Mr Suter wrote again asking the Respondent to provide a witness statement by 21 July 2020.
(3) On 20 July 2020 the Respondent replied saying that he was not able to provide a witness statement, and asserting that that was because he was concerned about the risk of self-incrimination — as he had been arrested in the aftermath of the bombing and had been questioned for 14 days.
(4) On 23 July 2020 the Respondent was served with a Notice, under the provisions of section 21(2)(a) of the Act, which required him to attend the Inquiry for interview in the week of 24 August 2020.
(5) On 12 August 2020 the Respondent's solicitor provided an unsigned statement from the Respondent, dated that day, in which the Respondent acknowledged service of the Section 21 Notice, but said that he did not wish to answer the questions asked of him in the letter of 28 May 2020, as he wished to claim the privilege against self-incrimination. He further asserted that his participation in the Inquiry might put members of his family at risk.
(6) On 21 August 2020, which was the day after Hashem Abedi had been sentenced, Sky News published the content of a telephone interview with the Respondent.
(7) Also on 21 August 2020, Mr Suter wrote to the Respondent's solicitor in relation to the Respondent's claim of privilege against self-incrimination, referring to section 14 of the Civil Evidence Act 1968 and to a small number of authorities, and indicating that the Chairman considered that the reasons given by the Respondent were not sufficient to discharge the Section 21 Notice.
(8) On 4 September 2020 the Respondent's solicitor replied, maintaining the Respondent's position in relation to the privilege against self-incrimination and inviting the Inquiry to reconsider its position and to withdraw the Notice.
(9) On 9 September 2020 Mr Suter replied, underlining the fact of the Respondent's Sky interview, and pointing out that it was not for the Chairman to establish that privilege did not apply – rather, and in relation to each question asked of him, it was for the Respondent to establish that privilege did apply. Mr Suter thus asked the Respondent to provide a written statement to the Inquiry by 18 September 2020.
(10) On 13 September 2020 the Respondent's solicitor replied, stating that the Respondent would not be making a further statement, but that a signed version of the statement supplied on 12 August 2020 would be provided.
(11) Mr Suter replied on 16 September 2020 — indicating that, in view of the Respondent's non-compliance, it was anticipated that he would be summoned to appear before the Chairman to give evidence in person.
(12) On 16 October 2020, following the broadcast of an attempt to interview the Respondent by the BBC, Mr Suter wrote again to the Respondent's solicitor asking for the Respondent's help. There was no substantive reply.
(13) On 9 April 2021 Mr Suter emailed the Respondent's solicitor pointing out that the Inquiry had recently interviewed Hashem Abedi (who had confirmed his participation in the planning and preparation of the bombing), and that the Inquiry was in possession of an expert report (in relation to radicalisation) which explained the relevance to the Inquiry of the background and family ties of Salman and Hashem Abedi — in relation to which the Chairman would be assisted by comments from the Respondent. Mr Suter emphasised that the Inquiry was a search for the truth, that the Respondent was in a unique position to assist with the investigation, and that the Chairman could require the Respondent's attendance.
(14) On 20 April 2021, the Respondent's solicitor replied, saying that the Respondent continued to invoke the privilege against self-incrimination, and asserted that the Sky interview had been made up by the relevant journalist. Finally, the Respondent's solicitor raised the possibility of the Chairman applying to the Attorney General for an undertaking that any evidence given to the Inquiry by the Respondent would not be used in any prosecution. Nevertheless, the solicitor continued: “ I cannot promise that such an undertaking would address all Mr Ben Romdhan's concerns, but it would radically alter the picture”.
(15) Mr Suter responded on 22 April 2021, setting out in considerable detail the law, and the principal authorities, in relation to claims of privilege against self-incrimination. He...
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