Open Session IICSA Inquiry-Lord Janner Preliminary Hearing 20 February 2020

1 Thursday, 20 February 2020 1 preliminary hearing will take place in two parts. The 2 (10.30 am) 2 first part will be an open hearing on largely the same 3 (In open session) 3 terms as the three previous preliminary hearings we have 4 Welcome and opening remarks by THE CHAIR 4 had. The only difference is that the open hearing has 5 THE CHAIR: Good morning, everyone. I am Alexis Jay and 5 no live feed, for reasons that will be explained. The 6 I am the chair of this public inquiry. Sitting with me 6 second part will be a closed hearing, which will proceed 7 are the other panel members of the inquiry: 7 in private. There will be a 15-minute mid-morning break 8 Professor Sir Malcolm Evans, Ivor Frank and 8 between the open hearing and the closed hearing where 9 Drusilla Sharpling. 9 some adjustments will be made. 10 On behalf of the inquiry, I welcome you all to this, 10 If this hearing has not concluded before 1.00 pm, we 11 the fourth preliminary hearing in the investigation into 11 will take a break for lunch. Directions arising from 12 institutional responses to allegations of child sexual 12 the hearing will be published on the inquiry's website 13 abuse made against the late Lord Janner of 13 shortly after the hearing, as will the hearing 14 Braunstone QC. 14 transcript for the open part. 15 The purpose of this fourth preliminary hearing is to 15 As I did at the third preliminary hearing, I wish, 16 hear an update from counsel to the inquiry on an issue 16 from the outset, to remind everyone that I expect those 17 that has arisen in the investigation which impacts on 17 appearing before the inquiry, and in particular those 18 its future, and to hear submissions from counsel to the 18 who have been granted core participant status, to 19 inquiry and from core participants about how the 19 conduct themselves appropriately. As ever, there are 20 investigation should adapt to respond to this, including 20 the strongest of emotions on all sides in this 21 whether or not it should be discontinued. The structure 21 investigation, and there exist diametrically opposed but 22 of the hearing is set out in the hearing agenda. 22 deeply-held views. I trust that all parties and their 23 For reasons which counsel to the inquiry have 23 legal representatives will exercise sensitivity and 24 explained in their written submissions shared with core 24 restraint in advancing their submissions and will treat 25 participants and will now be explained openly, this 25 all participants with respect.

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1 I also make clear that the restriction orders that 1 Home Office by Ms Reeves. Michael Creedon by Mr Daw QC 2 I made on 23 March 2018 and 18 September 2019 remain in 2 and Mr Welch. Michael Perry is in person but not in 3 force. Both of these restriction orders are to be found 3 attendance. Mr Christopher Thomas, who has recently 4 on the inquiry website. 4 become a core participant, is represented also by 5 I stress in particular that nothing must be said or 5 Mr Daw QC and Mr Welch. 6 reported publicly about proceedings in today's closed 6 Dr Butler is represented by Mr Hynes QC. The estate 7 hearing that breaches the Sexual Offences (Amendment) 7 of the late Lord Janner of Braunstone QC and Rabbi Laura 8 Act 1992 or the restriction order that I made 8 Janner-Klausner and Marion Janner OBE are represented by 9 in September 2019. Publication for these purposes 9 Mr Friedman QC and Mr Butler. Daniel Janner QC is in 10 includes publication on social media. 10 person, but not in attendance today. Howe & Co and 11 I now invite leading counsel to the inquiry, 11 Affinity Law, on behalf of a number of complainant core 12 Mr Altman QC, to provide us with an update on the 12 participants, are represented by Mr Jacobs. 13 investigation and to make his submissions. Please go 13 Slater & Gordon, on behalf of a number of complainant 14 ahead, Mr Altman. 14 core participants, are represented by Mr Stanage. 15 Submissions by MR ALTMAN 15 Finally, Simpson Millar, on behalf of a number of 16 MR ALTMAN: Thank you, chair. First, let me introduce the 16 complainant core participants, are represented by 17 representatives of the core participants in this 17 Mr Chapman. 18 investigation. The Crown Prosecution Service is 18 Chair, the last preliminary hearing in this 19 represented by Mr Brown QC. The Independent Office for 19 investigation took place on 24 September last. The key 20 Police Conduct is represented by Mr Boyle QC. 20 issue on that occasion was whether the investigation 21 Leicestershire County Council, by Mr Verdan QC and 21 could proceed to public hearings this month in light of 22 Ms King QC. The Chief Constable of Leicestershire is 22 the decision of the Independent Office of Police Conduct 23 today represented by Ms Meredith. 23 to refer one individual to the Crown Prosecution 24 The Labour Party is represented by Ms Grey QC. The 24 Service. You made a determination on 9 October in which 25 Secretary of State for Education by Ms Wilsdon. The 25 you adjourned the proposed public hearings until October

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1 of this year, primarily in order to allow the CPS time 1 someone as a complainant of child abuse. 2 to make a decision on the case that was referred to 2 We have made extensive written submissions on the 3 them. 3 1992 Act, which I am not going to repeat here. None of 4 You also ordered this further preliminary hearing to 4 the core participants has challenged our interpretation 5 hear submissions on a number of matters raised by 5 of the legal provisions of that Act, although some have 6 counsel to the inquiry in our submissions and, in short, 6 questioned how they apply to the facts relevant to this 7 these concerned these matters: first, should the public 7 investigation. I will return to that in due course, but 8 hearings go ahead; second, if they do, what should they 8 for the aid of public understanding, I make the 9 cover; and, third, how should certain procedural 9 following points about the effect of the 1992 Act. 10 questions be resolved? 10 Parliament passed the 1992 Act in order to make it 11 I will return to each of these questions later in 11 easier for complainants of sexual abuse to come forward 12 the course of these submissions. However, since your 12 with allegations. They did this by providing lifelong 13 determination, a further issue has arisen which has 13 anonymity for any such complainant. The 1992 Act has 14 affected the future of this investigation. It is an 14 been amended to ensure that anonymity covers any matter 15 issue that we highlighted in our written and oral 15 that might lead to someone being identified as 16 submissions in September last year. In summary, an 16 a complainant -- not just their name or address, but any 17 individual who has made complaints of child sexual abuse 17 piece of information that could lead members of 18 against Lord Janner has informed us that they wish to 18 the public to identify them: so-called jigsaw 19 assert their full right to anonymity. 19 identification. The courts have interpreted the 1992 20 This decision will have a major impact on how much 20 Act broadly, so that any publication that risks 21 of any hearings in this investigation can take place in 21 compromising anonymity will be a criminal offence unless 22 public. The reason for this is that the Sexual Offences 22 the complainant in question has given written consent to 23 (Amendment) Act 1992, as amended, makes it a criminal 23 it, or unless certain exemptions relating to criminal 24 offence to put into the public domain "any matter" that 24 trials apply. 25 "is likely to lead members of the public to identify" 25 The 1992 Act covers all aspects of the work of

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1 the inquiry -- any report or document published by the 1 "In the particular circumstances relating to one 2 inquiry, anything said by lawyers during hearings, any 2 complainant [in this investigation], his/her decision to 3 answers given by witnesses, any tweet or article 3 exercise his/her lawful right to anonymity means that 4 published by journalists covering the hearings. In each 4 extensive redactions will have to be made to evidence 5 and all of those examples, if someone puts into the 5 that is to be placed into the public domain. The 6 public domain any matter that risks compromising the 6 complainant was an individual who was identified as an 7 anonymity of a complainant, they commit a criminal 7 alleged victim of child sexual abuse allegedly committed 8 offence unless they have that complainant's written 8 by Lord Janner. The allegations concerning the 9 consent to the publication of the material. They would 9 complainant were considered by various organisations, 10 also be breaching the restriction order made by you on 10 including Leicestershire Police, Leicestershire County 11 18 September last year, which is intended to mirror the 11 Council, the Crown Prosecution Service and various other 12 1992 Act. 12 national and local bodies. The allegations were 13 In most cases, the inquiry is able to comply with 13 examined, or arguably should have been examined, at 14 the Act and to conduct its work in public by applying 14 various points in time since they were made. As 15 ciphers and redactions in order to prevent obviously 15 a result, they occupy a central role in the evidence 16 identifying features being made public, features such as 16 that is relevant to this investigation. That is so both 17 someone's name, their image or professional position. 17 in their own right -- did institutions fail to respond 18 The position is more complicated when there are other 18 appropriately to these particular allegations? -- and in 19 matters outside the inquiry's control that could allow 19 respect of the context that they provide to other 20 for jigsaw identification. 20 allegations made against Lord Janner -- in particular, 21 I am limited in what I can say in open about the 21 the question of whether institutions failed to respond 22 situation that has arisen in this investigation. But 22 adequately to the accumulation of allegations over 23 I will repeat, for the benefit of public understanding, 23 a number of years from a number of different sources." 24 the explanation which is included in our written 24 The reason I have read the precise words of that 25 submissions at paragraph 27, and this is a quotation: 25 paragraph is because even this limited detail goes

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1 further than that which could ordinarily be said in 1 submissions. As we have repeatedly emphasised 2 public because of the 1992 Act. The complainant in 2 throughout this investigation, our submissions have no 3 question consented to this being put into the public 3 special status. They are not "advice" and they do not 4 domain by counsel to the inquiry. Others speaking 4 represent a corporate policy position on the part of 5 today, and those reporting these proceedings, will need 5 the inquiry. They are the independent submissions of 6 to be mindful of their own legal obligations. 6 independent counsel. You may reject or accept them as 7 Let me state, unequivocally, that this complainant 7 you think fit. 8 is perfectly entitled to assert their right to 8 It is also perhaps worth emphasising at this stage, 9 anonymity. Many other complainants have done so in this 9 chair, that this decision, like all procedural decisions 10 and other inquiries. We entirely respect, and indeed 10 within this inquiry, is a decision for you, and you 11 understand, that decision. It would be wrong to draw 11 alone, to make. Although, in line with the normal 12 any inference from it. For the avoidance of doubt, the 12 practice of this inquiry, the panel sits with you at 13 complainant maintains their allegations against 13 this preliminary hearing, as a matter of law the 14 Lord Janner. 14 procedural decisions to be made at and following this 15 It is, though, clear that the decision will have 15 hearing regarding the future conduct of this 16 a major impact on how this investigation proceeds, and 16 investigation are not decisions for you to make with the 17 in particular on how much information can now be placed 17 panel. Rather, they are decisions that you will make 18 into the public domain given the strict provisions of 18 alone. 19 the 1992 Act. 19 The three options. These three options we 20 That, we say, is the main issue facing you at this 20 identified as being legally open to you are as follows. 21 hearing. In anticipation of it, we presented in our 21 First, proceeding with a hearing on what we suggest are 22 written submissions three possible approaches that are 22 the central issues of this investigation -- the response 23 open to you in law. These were provided to all core 23 of the police and the CPS to the allegations against 24 participants so that they could make their own 24 Lord Janner -- but doing so in the knowledge that a very 25 submissions. You will want to consider all of those 25 substantial part of it would have to be held in closed

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1 session. That is to say, most of the hearings would not 1 discontinuance. 2 be in public. Instead, they would take place in private 2 Let me turn to the first of those options, the use 3 sessions to which only core participants and possibly 3 of closed hearings. We approach this in three stages: 4 some members of the media would be admitted. The public 4 first, is there a legal power by which you can pursue 5 would be excluded. There would be little or no live 5 this route; second, if there is, what would such 6 streaming of evidence or submissions, and transcripts 6 hearings actually involve -- in particular, what could 7 would not, in general, be published. Were the media to 7 be heard in open and what would have to be closed; 8 attend such hearings, there would be heavy restrictions 8 third, what factors should you consider when deciding 9 on what they could report about the hearings. 9 whether or not to proceed in this way? 10 The second option is proceeding with public hearings 10 Our answer to the first of these questions is that 11 on more peripheral issues which did not require closed 11 you do, in principle, have the legal powers to proceed 12 hearings. 12 with closed hearings. 13 And the third option is discontinuing the 13 The reasons for this conclusion are to be found at 14 investigation. 14 paragraphs 46 to 53 of our submissions. In short, this 15 All of these options are unattractive. It is your 15 inquiry is governed by the Inquiries Act 2005. 16 unenviable job, chair, to decide which is the least bad. 16 Section 19 of that Act provides you with the power to 17 It is fair to say that the second option has not 17 hold private hearings if you consider that to be 18 been supported by any of the core participants. 18 "conducive to the inquiry fulfilling its terms of 19 Ms Leek QC for the Leicestershire Police described it as 19 reference" or if you consider such hearings "to be 20 the "least satisfactory" of the three. We agree, and 20 necessary in the public interest", having regard to 21 you may have little hesitancy in rejecting it. If that 21 certain factors set out in section 19(4). 22 is right, we would urge you to do so at an early stage 22 Your discretion to hold closed hearings is broad but 23 of your decision making, so that you are able to assess 23 must be exercised fairly and with regard to the need to 24 the stark choice that in reality you face: continuing 24 avoid any unnecessary cost, and I refer there to 25 the investigation in large part in closed hearings, or 25 section 17(3) of the Act.

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1 Despite the fact that we clearly raised this option 1 the senior investigating officer of Operation Enamel, 2 in our written submissions, the main submission made by 2 the most recent Leicestershire Police enquiry into the 3 the complainant core participants suggests that we 3 allegations of child sexual abuse made against 4 somehow seek to "disapply" section 19 of the 2005 Act. 4 Lord Janner. The Operation Nori report was provided in 5 That is simply wrong, and we do not understand how they 5 two versions, one of which showed the extent of 6 have reached this conclusion. Closed hearings are an 6 the redactions that the inquiry considers to be required 7 option that is open to you, as we have said before and 7 if the document is to be published. 8 repeat now. 8 The reason for providing such detailed material was 9 The next stage in our analysis is what such hearings 9 to ensure that all core participants were aware of, and 10 would look like. Here, I am limited in what I am able 10 could comment on, the extent to which closed hearings 11 to say in public because of the anonymity issue. 11 would be required. This is not "problematising", to 12 However, it is important to make the following points so 12 adopt the word used by Slater & Gordon in their 13 that interested members of the public understand the 13 submissions. It is counsel to the inquiry doing their 14 position. 14 job -- setting out the law, applying it to the facts of 15 Counsel to the inquiry have made detailed closed 15 this investigation, and identifying publicly the various 16 written submissions, running to some 20-odd pages and 16 routes open to the inquiry. This investigation faces 17 7,000 words. We identified the central matters that we 17 very significant challenges if it is to proceed and they 18 say this inquiry should investigate if it is to 18 have to be addressed. 19 continue. We set out what, in our view, could be heard 19 A number of the core participants have questioned 20 in public and what would have to be heard in closed 20 our analysis of the extent to which closed hearings will 21 sessions because of the 1992 Act. We did so by 21 be required. Some have said that "the normal process of 22 reference to specific categories of evidence. 22 ciphers and redaction" complemented by "gists" would be 23 In addition, core participants were provided with 23 sufficient to comply with the Act. Some have pointed to 24 the extensive report of the IOPC's Operation Nori, and 24 measures taken elsewhere in this inquiry or in other 25 the lengthy witness statement of Matt Hewson, formerly 25 public inquiries to suggest that the problem here is

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1 somehow being exaggerated. One has pointed out that in 1 investigation is to proceed in the way we envisage, then 2 criminal courts there are often concerns about jigsaw 2 the overwhelming majority of it will have to take place 3 identification but these "rarely, if ever" lead to 3 in closed session and almost all of the resulting report 4 prosecutions not taking place. 4 would also be closed, meaning it would not be published 5 Yet none of these criticisms addresses at all the 5 or otherwise made public. The reasons for this will be 6 specific points made in our closed submissions. None of 6 developed in closed hearings. 7 them identifies any section of evidence that they claim 7 On the report, we note the submission by Mr Chapman 8 could be placed in the public domain when we say it 8 on behalf of the Simpson Millar complainants that an 9 could not. You may feel, chair, that that is the kind 9 unredacted version could be published using 10 of analysis that you need. 10 parliamentary privilege. This is a theoretical 11 It is not helpful to argue, as some do, that they 11 possibility that we considered when preparing our 12 don't have the material on which to make an assessment 12 submissions. However, we did not ultimately make 13 of this point or to argue that it all needs to be done 13 reference to it because, with respect to Mr Chapman, it 14 later. The time for the decision is now. Sufficient 14 seemed to us a flawed proposition. There are two 15 disclosure has been made to allow for meaningful 15 principal reasons for this. 16 submissions on this point. Counsel to the inquiry have 16 First, the decision to publish this way is not in 17 provided detailed submissions to enable the debate. 17 your gift. A minister would have to agree to proceed in 18 We would invite those core participants who argue 18 this way. We think it is unlikely that a minister would 19 that we are unduly cautious on this point to identify in 19 do so, given that it is a device to use parliamentary 20 the closed session that will follow which areas of 20 privilege to evade the provisions of a criminal statute 21 evidence can be heard in public without offending 21 passed by parliament and to publish material that would 22 against the 1992 Act. 22 otherwise unlawfully compromise the anonymity of 23 At present, we submit that our analysis of what can 23 a complainant of child sexual abuse. The decision of 24 and cannot be placed in the public domain is correct. 24 the Court of Appeal last week in the case of Gannon & 25 The reality of the situation, we say, is that if the 25 Warsama v African & Commonwealth Office and

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1 Sasha Wass QC is relevant in this respect, in particular 1 publication of any matter that is likely to allow 2 the observations of the court at paragraph 69, which 2 a member of the public to identify a complainant. It is 3 I am not going to repeat here, but anyone who has access 3 prospective, preventing further publications regardless 4 to them can read them for themselves. 4 of what has happened in the past, and the case of 5 Second, and more importantly, it reduces the 5 O'Riordan v DPP demonstrates that. 6 anonymity decision of the complainant in question to 6 The final stage of our analysis concerns the matters 7 a legal technicality that the inquiry should seek to 7 that you must take into account when deciding whether to 8 overcome. This is anathema to our approach. The 8 proceed with closed hearings, given your conclusion on 9 decision of the complainant is one they are entirely 9 what they would involve. 10 entitled to take, and is one that this inquiry, and all 10 In our written submissions, at paragraphs 49 to 51 11 involved in it, has to respect. The inquiry should not, 11 and 53, we acknowledge that there are some advantages in 12 in our submission, be complicit in using parliamentary 12 proceeding in this way. In particular, we stress that 13 privilege to undermine a complainant's anonymity, 13 it would go some way to meeting the legitimate interests 14 particularly given the history of this case. We 14 of complainant core participants and that it would allow 15 recognise that this was not Mr Chapman's intention when 15 for some forensic analysis of the key investigative 16 making this suggestion, but it would be the effect. 16 question: was Lord Janner given preferential treatment, 17 Mr Chapman also sought to draw a distinction between 17 and, if so, why? 18 "(a) providing further material that may tend to 18 However, we also pointed out the disadvantages, and 19 identify a complainant, and, (b), exciting public 19 that is, of course, our reference to the nine points at 20 interest generally that may lead members of the public 20 paragraph 52 that we list. I am not going to repeat 21 or media to examine publicly available records". The 21 them at length, but in summary, the main justification 22 latter, he suggests, is not an offence. We submit that 22 for going ahead with this investigation was, in our 23 the Act does not make such a distinction. It is broadly 23 view, the ability to hear and test evidence publicly, 24 drawn and has been broadly interpreted, as we have set 24 and to reach public conclusions on the central matters. 25 out in our written submissions. It prohibits the 25 That will no longer be possible because of the anonymity

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1 issue. There are also challenges to ensure that all 1 you proceed on the basis that the overwhelming majority 2 parties to the investigation will get a fair hearing. 2 of the hearings would have to be in closed hearings. 3 We maintain our position on these points, 3 However, we readily accept their arguments that the 4 notwithstanding the submissions of Howe & Co, supported 4 alternative -- discontinuance -- would have 5 by others, in which it is argued that our assessment of 5 a devastating effect on some of their clients and would 6 the disadvantages is either misplaced or too 6 mean that important matters of public concern remain 7 pessimistic. We note that other core participants, 7 uninvestigated by this inquiry. We also agree, as is 8 including some who remain neutral on the ultimate 8 clear from our written submissions, that the 2005 Act 9 question of how to proceed, have accepted that the 9 provides you with a power to proceed by way of closed 10 factors we have identified are relevant ones for you to 10 hearings if the criteria in section 19 are satisfied. 11 consider. 11 It would not be unreasonable to accept those 12 In our written submissions, we said that we did not 12 arguments and proceed with closed hearings. Nor do we 13 support the option of closed hearings, but that this was 13 submit questions of fairness absolutely preclude this 14 a route that was open to you in law. That remains our 14 course, although they would have to be carefully managed 15 position. But it is perhaps worth emphasising two 15 in practice. 16 points. First, there are no good options -- you must 16 The Janner family, however, argue that it would be 17 choose the least bad in light of all of the submissions 17 unlawful to proceed with closed hearings on the basis 18 that you hear. Second, and as I have said before, this 18 that it would be a violation of their rights under 19 is a decision for you, chair, and you alone. In this 19 article 8 of the European Convention on Human Rights. 20 regard, the 2005 Act is clear that such case management 20 The argument is that continuing the investigation would 21 decisions are for you and not for the panel. 21 engage and interfere with their article 8 rights, as the 22 The complainant core participants urge you to go 22 allegations impugn their father and the inquiry will 23 ahead with the closed hearing option. We disagree with 23 interrupt their grief. 24 what we say are unrealistic assessments of how much 24 They go on to argue that such an interference would 25 evidence could be heard in public and would urge that 25 be unlawful because, first, the investigation is

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1 insufficiently important to justify the interference, 1 article 8". That is at paragraph 33. 2 as, in their view, there is no evidence that their 2 The court didn't define what those circumstances 3 father received preferential treatment on account of his 3 were, perhaps unsurprisingly, given that the matter 4 prominence. 4 wasn't argued before them. The facts of that case -- an 5 They say the investigation is not rationally 5 unsupported suggestion that a man's father may have 6 connected to the objective sought, both because it 6 collaborated with the Gestapo in murdering his team 7 cannot report publicly and because of the lack of 7 mates -- is a long way from the facts here. 8 evidence about preferential treatment on the ground of 8 The second case, Genner v Austria, is still less 9 prominence. 9 instructive. The court considered the question of 10 Third, a less intrusive measure is available, by 10 reputation generally in the context of the balance 11 providing complainants with the Operation Nori report 11 struck in national defamation laws between freedom of 12 and summarising it in public. 12 speech and the right to defend character -- paragraphs 13 And, fourth, continuing the investigation would not 13 30 to 32 and 41. The court also held that "dealing 14 amount to a fair balance between the rights of 14 appropriately with the dead out of respect for the 15 the Janner family and the rights of the wider community. 15 feelings of the deceased's relatives" could also fall 16 We submit, with respect, that none of these 16 within the scope of article 8 -- that's at paragraph 35. 17 arguments are well founded. 17 But this was in the context of an unevidenced assertion, 18 First, the Janner family have not established that 18 the day after a government minister had died suddenly, 19 their article 8 rights are engaged on the facts of this 19 that she had been a torturer and war criminal, akin to 20 investigation and this case. They cite two Strasbourg 20 a Nazi -- paragraphs 45 to 46. Again, this is far 21 cases in support of their position. The first, 21 removed from the facts of the present case. 22 Putistin v Ukraine is authority only for the proposition 22 Second, even if the family's article 8 rights are 23 that "the reputation of a deceased member of a person's 23 engaged, we say that it is open to you to find that 24 family may, in certain circumstances, affect that 24 continuing the investigation would amount to 25 person's private life, and thus come within the scope of 25 a proportionate interference in those rights. We agree

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1 that the relevant test is that set out in 1 substantially closed hearings. It will allow for 2 Bank Mellat v Her Majesty's Treasury (No 2). It is met 2 forensic analysis of the central issues. It can assist 3 in this instance for the following reasons. 3 the inquiry in fulfilling its terms of reference. 4 The objective being sought is an investigation into 4 Next, there is no less intrusive measure open to the 5 the way in which extremely serious allegations of child 5 inquiry if you want to continue to investigate this 6 sexual abuse were handled in respect of a person of 6 matter. The IOPC Operation Nori is not an equivalent to 7 public prominence. This investigation is intended to 7 this inquiry. The purpose of that investigation was 8 inform the wider work of a statutory public inquiry set 8 different to that of the inquiry. The range of 9 up to investigate institutional failures to protect 9 institutions and individuals that it considered was 10 children from such abuse. That is, we say, an objective 10 different. The reporting function was different -- in 11 of sufficient importance to justify interference in the 11 particular, neither the report author nor the decision 12 Janner family's article 8 rights, particularly where the 12 maker were charged with making an overarching assessment 13 police and the CPS have publicly accepted extensive 13 of the way in which Leicestershire Police, as an 14 criticisms of the way in which they responded to the 14 institution, had responded to allegations of abuse made 15 allegations, and where the allegations against 15 to them. 16 Lord Janner are already in the public domain. The 16 Were you, chair, to conclude that this investigation 17 suggestion that there is no evidence to support 17 could still assist you in fulfilling the inquiry's terms 18 a reasonable suspicion that Lord Janner was given 18 of reference, and in light of all of the arguments in 19 preferential treatment on account of his prominence is, 19 favour of continuing the investigation set out in our 20 we say, an assumption of a preferred conclusion. 20 submissions and those of the core participants, 21 Next, there is a rational connection between the 21 a decision to proceed with closed hearings would 22 objective being sought and the means adopted to achieve 22 represent a fair balancing of the competing rights of 23 it, namely, this investigation. For the reasons set out 23 the Janner family and the wider community. We note in 24 in our written and oral submissions, there are still 24 particular that the Janner family's article 8 rights 25 advantages in pursuing the investigation, even in 25 would only be "marginally" and "indirectly" affected, to

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1 adopt the language used by the Strasbourg court in 1 won't be. We have identified in our submissions which 2 Putistin, paragraph 40. This is particularly so, given 2 factors are relevant for you to take into consideration, 3 that the allegations against their father have been in 3 and we maintain those submissions. 4 the public domain for a number of years and did not 4 Let me now come to discontinuance and, first of all, 5 originate with the inquiry, and given that this inquiry 5 the position taken by counsel to the inquiry. 6 will not be pronouncing on his guilt or innocence. 6 This, in practice, is the other option open to you. 7 Shorn of legalese, the Janner family's argument is 7 Before I turn to the legal and factual issues involved, 8 that the investigation should not continue as it would 8 let me say a few words about our position which has been 9 cause them a good deal of distress. We agree that their 9 either misunderstood or misrepresented in some of 10 views as core participants should be considered, and 10 the submissions that you have received. 11 considered carefully. However, so, too, should the 11 We do not advocate for discontinuance. We have said 12 views of other core participants, including the 12 in our submissions that we see no advantage to it -- 13 complainant core participants. 13 paragraph 59. We have also made clear that, but for the 14 A further point that the Janner family makes is that 14 anonymity issue, we would be submitting that this 15 you should take your decision in light of your published 15 investigation should proceed -- paragraph 32. However, 16 policy on criteria for the selection of investigations. 16 the anonymity issue does have to be addressed, and for 17 We do not see those criteria as being directly relevant 17 those, including us, who want the investigation to go 18 to your current task. This investigation was selected 18 ahead, it is our job to identify a proportionate, 19 for consideration by the inquiry in January 2016. 19 effective, fair and lawful way of achieving this. We 20 In April 2017, you decided, following a review, to 20 set out at paragraph 62 the criteria that we identified 21 continue with it. Neither of those decisions was 21 as being relevant to that task. That was done in the 22 challenged. The question before you now is whether the 22 hope that others would engage in a collegiate search for 23 investigation should be discontinued. That is 23 a solution. 24 a different decision to whether it should be selected. 24 It has been suggested or insinuated by complainant 25 Some matters may be common to both decisions, but others 25 core participants that we have exhibited

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1 a "determination to discontinue this investigation in 1 about the timing of the CPS decision were somehow an 2 any event". It has also been said that we have advanced 2 attempt to discontinue by other means. This, too, is 3 "a series of sequential and different reasons for 3 plainly wrong. As counsel to the inquiry, we have to 4 discontinuing this investigation", and that "shifting 4 address the practical realities that this investigation 5 sands" arguments have been put forward for 5 faces. In that instance, the enquiry had to balance the 6 discontinuance. 6 need to give the CPS time to make a decision against the 7 These suggestions, insofar as they are directed at 7 need to prepare for public hearings. We identified 8 counsel to the inquiry, are simply not true. There is 8 publicly the date by which the CPS decision would have 9 no proper basis for them. 9 to be taken in order to allow subsequent hearings to go 10 When you became chair of this inquiry in 2016, you 10 ahead. Far from being an attempt to discontinue by 11 instigated a review of all of its ongoing 11 stealth, our purpose in that regard was to ensure that 12 investigations. You asked in terms whether this 12 the CPS knew exactly where it stood in the hope that it 13 investigation should continue. Counsel to the 13 would allocate sufficient resources to allow for 14 inquiry -- all of whom remain members of my team -- made 14 a decision to be made in time. This was successful, in 15 lengthy written submissions to you, dated 15 that the CPS decision was communicated to the inquiry on 16 14 February 2017, in which they argued forcefully that 16 8 January this year, two days after the date we had 17 it should continue, and I refer in particular to 17 identified, but still in sufficient time to allow this 18 paragraphs 17 to 23. You accepted those submissions. 18 hearing to go ahead. 19 In the last preliminary hearing, we resisted any 19 It should also be noted that we did not argue that 20 argument that the investigation should be discontinued 20 if the CPS decision was not taken in time, or had it 21 at that stage, saying that any discussion on this point 21 resulted in a prosecution, then the inquiry should be 22 should take place in a fair and structured way; again, 22 discontinued. We merely pointed out the practical 23 submissions that you accepted in your subsequent 23 difficulties that this would pose, based on the evidence 24 determination. 24 disclosed to all core participants. 25 It has been suggested that our previous submissions 25 Finally, let me address Mr Chapman's submissions on

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1 behalf of the Simpson Millar complainants that "they 1 judgment. Surprisingly, that case doesn't feature in 2 feel in truth that the Establishment does not want this 2 the complainants' submissions. 3 investigation to proceed". Whatever the "Establishment" 3 The Supreme Court held in Finucane that the 4 is, and whatever its views are, this inquiry is not part 4 principle of legitimate expectation could be framed in 5 of it. Indeed, this inquiry has subjected senior 5 the following way: 6 figures from church and state to unprecedented scrutiny 6 "Where a clear and unambiguous undertaking had been 7 and has not shied away from making decisions adverse to 7 made, the authority giving the undertaking would not be 8 their interests where justified and appropriate in the 8 allowed to depart from it unless it was fair to do so." 9 interests of victims and survivors and to protect 9 That's paragraph 62. 10 children from sexual abuse. 10 In the present case, the complainant core 11 On the substance of the question of discontinuance, 11 participants would need, therefore, to establish that 12 I propose to take the same approach as I did in respect 12 there was a clear and unambiguous undertaking to proceed 13 of closed hearings. I ask, first, whether this is an 13 with this investigation, and that not doing so now, 14 approach that is open to you in law. If it is, what are 14 despite the anonymity issue that has arisen, would be 15 the consequences and, finally, I turn to the arguments 15 unfair in the sense described in the relevant 16 for and against discontinuance. 16 authorities. 17 On the law, it is our clear submission that this is 17 The complainant core participants argue that the 18 an approach that is open to you. The complainant core 18 clear and unambiguous undertaking is found in the 19 participants take a different view on two grounds. 19 confirmation by the CPS that there will be no 20 First, legitimate expectation, and, second, fairness 20 prosecution in the case referred to it by the IOPC. 21 under section 17(3) of the 2005 Act. 21 This, they say, has "given rise to a legitimate 22 The law on legitimate expectation in the context of 22 expectation that the investigation will proceed". 23 public enquiries has been relatively recently considered 23 In our submission, this falls far short of the clear 24 by the Supreme Court in the case of Re Finucane, in 24 and unambiguous undertaking that the law requires. We 25 particular, paragraphs 63 to 72 of the Supreme Court 25 say that there has never been such an undertaking that

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1 this investigation would definitely continue, and the 1 to hold the hearings unless a resolution can be found 2 following supports the proposition. 2 that is lawful, fair and acceptable to the individuals 3 At paragraph 38 of our written submissions to the 3 concerned." 4 previous preliminary hearing, counsel to the inquiry 4 We reiterated the same point in oral submissions at 5 said: 5 the last preliminary hearing on 24 September. I am not 6 "... it is not the case that the substantive 6 going to repeat the whole quotation, which is at 7 hearings will necessarily go ahead even if the CPS 7 paragraph 22 of our written submissions for this 8 determines that no charges will be brought ... many very 8 hearing, but it concluded with the warning that "the 9 important and difficult decisions lie ahead." 9 inquiry cannot, in our submission, proceed unless 10 In the same document, we foreshadowed the very 10 a resolution can be found that is lawful, fair and 11 issues of anonymity that have subsequently become of 11 acceptable to the individuals concerned". 12 such importance. At paragraph 36.5, we said this: 12 It has been said in the submissions made by 13 "Following the determination of the list of issues 13 Howe & Co, supported by other complainant core 14 for the hearings, consideration will need to be given to 14 participants, that the anonymity issue was not "raised 15 what, if any, waivers of anonymity the inquiry will 15 or highlighted in any adequate way", and that "if it was 16 require from relevant complainants. As is discussed in 16 raised, it was raised sotto voce at best". It is also 17 CTI's submissions on the proposed restriction order, the 17 said that the issue was "presented as a hypothetical, 18 inquiry is bound by the Sexual Offences (Amendment) Act 18 procedural and minor obstacle". 19 1992 and other relevant legal obligations. There may be 19 These propositions are not correct, as the 20 a substantial risk that the public hearings could allow 20 quotations I have provided plainly show. We raised the 21 for jigsaw identification of some complainants given 21 anonymity issue on two occasions precisely to give core 22 material that is already in the public domain. The 22 participants fair warning of it. It was presented as an 23 inquiry, the relevant complainants and their legal 23 issue that the inquiry had to deal with and one that 24 advisers will need to consider how best to handle this 24 threatened the continuation of the investigation. We 25 difficult and sensitive matter. It will not be possible 25 couldn't have been clearer.

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1 In the course of the submissions that you heard on 1 and unequivocal promise that the investigation would 2 24 September, the issue of discontinuance was raised by 2 continue, no matter what. You plainly foresaw and 3 the Janner family, who gave notice that they would want 3 invited further submissions on the point. 4 to make arguments on this point at this hearing. 4 Even had you made such a clear and unequivocal 5 In your determination of 9 October last, you 5 undertaking, the law still allows you to resile from it. 6 expressly rejected the submission made by Howe & Co and 6 In Finucane, the Supreme Court held, at 7 Affinity Law that you should decide at that stage that 7 paragraph 76, that where contemporary considerations 8 the investigation would not be discontinued, and that 8 impelled a different course from the one originally 9 was at paragraph 24. Instead, at paragraph 25, you 9 indicated, then, provided a bona fide decision was taken 10 said: 10 on genuine policy grounds not to adhere to the original 11 "I accept the submissions of Mr Altman that any 11 undertaking, it was difficult for a person holding 12 arguments on whether the investigation should continue 12 a legitimate expectation to enforce compliance with it. 13 or be discontinued must take place 'in a fair and 13 This is, in our submission, exactly the position in 14 structured way, when more information is available and 14 which you find yourself. Since the last hearing, the 15 when all concerned have had an opportunity to make their 15 difficulties caused by the anonymity issue have 16 submissions in full'". 16 crystallised. That's a matter that you must take into 17 You also gave directions that you expected that this 17 account when deciding on the future of this 18 preliminary hearing would consider the matters raised at 18 investigation. You have given all core participants 19 paragraph 36.4 of our previous written submissions. The 19 notice of this matter and have provided them with 20 first of these was whether the investigation should 20 sufficient disclosure to allow them to make informed 21 continue. As you said in your determination, these 21 submissions on it. If, at the end of that process, you 22 directions were "intended to allow the inquiry to 22 were to find that the new circumstances were such as to 23 'retain all its options'". 23 persuade you that the investigation should not continue, 24 We don't see how, in those circumstances, it can be 24 then it would not be unfair to resile from any previous 25 sensibly maintained that you or the inquiry gave a clear 25 undertaking. It is notable that the core participants

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1 provide no authority in support of their position on 1 It would not consider the institutional responses to the 2 this point; indeed, it is barely addressed in the 2 allegations made against Lord Janner. We have said in 3 written submissions. 3 the past, and we continue to say, that the issues raised 4 We submit, therefore, that there is no legitimate 4 by this case are important and are worthy of this 5 expectation that this investigation will not be 5 inquiry's attention. We maintain that they would assist 6 discontinued. There was no relevant undertaking and, 6 you in discharging the inquiry's terms of reference. We 7 even if there had been, it would be fair to resile from 7 don't repeat the arguments made on previous occasions 8 it. 8 about the value of the exercise. They remain valid, 9 The Howe & Co submissions also raise, very briefly, 9 although with the important caveat that the public 10 your duty under rule 17(3) to act with fairness and with 10 interest in maintaining the investigation is 11 regard to the need to avoid unnecessary costs -- I think 11 considerably diminished by the need to hold most or all 12 that should be "section". Discontinuation, they say, 12 of it in a closed session. 13 would be inconsistent with these duties. I can be 13 We do not accept the submission made by the Janner 14 brief. The same points on fairness that I have 14 family that the Operation Nori report demolishes the 15 previously made apply. On unnecessary cost, a decision 15 suggestion that Lord Janner was given preferential 16 to stop an investigation, were you to conclude that 16 treatment on account of his prominent position in public 17 there was no longer sufficient purpose to continue it, 17 life. We don't read the report in that way. We also 18 would not give rise to unnecessary costs; indeed, quite 18 repeat what has already been said, that the purpose of 19 the opposite. For these reasons, we say that 19 the Operation Nori report is different from that of 20 discontinuation is a course that is open to you in law. 20 the inquiry. It was not tasked with making a finding on 21 Turning, then, to what the effect of discontinuance 21 this issue, and, in any event, it only examined the 22 would be. In short, there are two elements to it: one 22 actions of living police officers through the prism of 23 forensic and one human. 23 criminal and disciplinary charges. In our submission, 24 The forensic element is that the central issues in 24 the question of whether Lord Janner was given 25 this investigation wouldn't be examined by this inquiry. 25 preferential treatment and, if so, why, remains a live

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1 one. 1 to decide. It is, as Ms Leek QC said in her 2 The human element to the decision to discontinue is 2 submissions, an "invidious" position in which you find 3 clear. It will have a devastating effect on many of 3 yourself, "having to determine which of [the] proposed 4 the complainant core participants. They have engaged 4 options to take, none of which is attractive or 5 with this inquiry over a number of years and, as we have 5 satisfactory". It is not a position of your or the 6 said, they have a legitimate and substantial interest in 6 inquiry's making -- we are here because of factors that 7 the investigation continuing. The submissions made on 7 are outwith the inquiry's control. 8 behalf of the complainant core participants starkly 8 Our submissions are intended to set out the lawful 9 demonstrate the effect discontinuation will have on 9 approaches that are open to you and the consequences of 10 them. We recognise and sympathise with the points made. 10 those approaches. The choice of which path you follow 11 The human element is one that, in law, you must have 11 is for you alone. 12 regard to when coming to your decision. We know of no 12 Let me come to a few other further matters before 13 complainant core participants who support 13 finally concluding, so to address you on a few matters 14 discontinuation; all of those who have expressed a view 14 that would arise should you decide to proceed with the 15 fiercely oppose it. That, too, is a matter that you 15 investigation. 16 must consider when deciding on your approach. 16 First, you invited submissions on the scope of any 17 In conclusion on discontinuing the investigation, we 17 future hearings and on certain procedural matters that 18 submit that this is a course that is open to you in law. 18 would arise in them, namely, the position on findings of 19 Before deciding on it, though, you must consider what 19 fact, evidence about the credibility of complainants and 20 will be lost -- both the forensic loss to your inquiry 20 the approach to be adopted to the questioning of 21 as a whole and the real and substantial impact that it 21 witnesses. 22 will have on complainant core participants. 22 We have set out our position on these matters at 23 Ultimately, you must choose which is the lesser of 23 some length in our open and closed submissions, and 24 two evils: substantially closed hearings or 24 I don't repeat them now. 25 discontinuance. That is a matter for you and you alone 25 Most core participants have made no submissions

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1 opposing our proposed approach. A few have expressed 1 that this is necessary in order for the inquiry to 2 support for at least some elements of it. 2 consider whether Lord Janner "endured detrimental 3 The Janner family have raised some points of 3 treatment because of his 'prominence'". They identify 4 concern. First, they suggest that it is "unfair and 4 what they say are "genuinely worrying" elements of 5 irrational to start with the untested assumption that 5 Operation Enamel. 6 the charging decisions and processes relating to 6 We understand the point that is made, but we do not 7 Operation Enamel were correct and that all previous 7 agree. Your legal team have sought and obtained 8 operations must be judged against its standard". 8 substantial disclosure from both the CPS and 9 We make no such assumption. We have no position on 9 Leicestershire Police. Having considered that 10 whether the charging decisions relating to 10 disclosure, we have not identified institutional 11 Operation Enamel were correct, and we certainly don't 11 failings in either Operation Enamel or in the CPS 12 propose judging previous investigations against those 12 decision making that would justify inclusion in this 13 decisions. We are unclear why the Janner family thought 13 investigation. That is not to say that the decisions 14 that was our position. We suggest that evidence from 14 taken were the "correct" ones -- we have no view on that 15 whose who conducted Operation Enamel can helpfully be 15 and need not form one. 16 called, but its purpose would be limited -- namely, 16 Our position has not changed having read the Janner 17 providing background information and a narrative 17 family submissions. They do not identify institutional 18 framework for the hearings and providing evidence of 18 failings. We are particularly wary of an approach that 19 material that might have been uncovered by previous 19 relies on selecting a few pieces of contentious evidence 20 investigations had different decisions been taken. The 20 and saying that they call into question the 21 precise boundaries of such evidence would be a matter 21 investigation as a whole. Operation Enamel has not been 22 for discussion at a later stage. 22 the subject of legal challenge. The matters raised now 23 Second, the Janner family argue that both 23 by the Janner family have not been referred to the 24 Operation Enamel and the CPS decision making in 2014 to 24 appropriate body, in other words, the IOPC. There has 25 2015 should be included in the investigation. They say 25 been no judicial review challenging the decisions

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1 during, or as a consequence of, Operation Enamel. In 1 investigation of this hearing. 2 contrast, previous investigations have been subject to 2 We agree with the submissions made by a number of 3 investigation and critical scrutiny, and both the CPS 3 core participants that the hearings have to be timed to 4 and Leicestershire Police have accepted the criticisms 4 avoid Jewish holidays. We regret, though, that the 5 made of them. The inquiry must prioritise and we say it 5 availability of counsel is not a matter that should 6 is right for the inquiry to focus on those matters. 6 influence hearing dates. The potential listing has been 7 Further, the terms of reference of this inquiry 7 in place for more than a year and is part of 8 require it to "consider the extent to which state and 8 the inquiry's wider programme. Inevitably, given the 9 non-state institutions have failed in their duty of care 9 large number of core participants represented, some 10 to protect children from sexual abuse and exploitation". 10 counsel will be unavailable at any given time. 11 It is not an inquiry into allegations of wrongful 11 Finally, the Janner family raise the issue of 12 convictions or allegations that the police behave 12 recusal of a panel member, Ms Sharpling. We have made 13 unfairly towards celebrities or people of prominence. 13 written submissions on this point. In short, that is 14 Whatever criticisms may be made of Operation Enamel and 14 a matter for Ms Sharpling and for the Home Secretary, 15 the decisions that led from it, be they fair or unfair, 15 but not for you, chair. We have seen a letter that the 16 they are not matters that are directly connected to 16 Janner family has written to the Home Secretary on this 17 failures to protect children from sexual abuse. 17 issue. That letter has now been copied to core 18 The Janner family also argue that the hearings can't 18 participants. The Home Secretary, I understand, has now 19 go ahead in October, for reasons of case management and 19 responded. 20 disclosure. We don't doubt the immense effort that will 20 I add only this by way of one correction, for the 21 be required to maintain that listing in the 21 record. In their submissions, the Janner family suggest 22 circumstances in which we now find ourselves. However, 22 that Ms Sharpling, in her role as an inspector for 23 if you, chair, decide the investigation should continue, 23 Her Majesty's Inspectorate of Constabulary, was 24 then the investigation team will do what is necessary to 24 "responsible in part for the oversight" of 25 achieve the October date potentially listed for the 25 Operation Enamel. That is wrong. Inspectors have no

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1 operational oversight over any police operations. Their 1 rather than open session. You, chair, will have an 2 role is to inspect system issues, not individual cases, 2 opportunity to summarise those matters in your published 3 the latter being a matter for the IOPC. The 3 determination. 4 Inspectorate is an independent organisation and its 4 Chair, that's all I propose to say now. It is 5 inspectors have no relationship with the police forces, 5 a little before the time at which you normally take your 6 other than exercising their public function of 6 mid-morning break. Can I suggest perhaps you take your 7 inspection. It is, therefore, incorrect to say that 7 break now and then we return in 15/20 minutes, when you 8 Ms Sharpling had any part in the oversight of 8 can hear from those who wish to speak on behalf of core 9 Operation Enamel. 9 participants? 10 Those are the open submissions, chair, of counsel to 10 THE CHAIR: Yes. We will return at 11.55 am. 11 the inquiry. We have tried to include as much as 11 (11.37 am) 12 possible in this open session, as we indicated we would. 12 (A short break) 13 We will have some further submissions to make in closed 13 (11.56 am) 14 session, but we anticipate that they will be 14 THE CHAIR: We will now hear other submissions. Mr Brown? 15 considerably shorter. Before we go to that session, 15 MR BROWN: Nothing to add at this stage, thank you. 16 I would suggest that you invite open submissions from 16 THE CHAIR: Thank you. Mr Boyle? 17 other core participants. 17 MR BOYLE: No, thank you, chair. 18 We do remind anyone who does speak of the importance 18 THE CHAIR: Thank you. Mr Verdan? 19 of complying with the 1992 Act and the chair's 19 MR VERDAN: No, thank you, chair. 20 restriction orders. If there are matters of doubt, we 20 THE CHAIR: Ms Meredith? 21 would invite them to be raised with us, if necessary 21 Submissions by MS MEREDITH 22 over a break in the proceedings. We would also remind 22 MS MEREDITH: Thank you, chair. On behalf of the Chief 23 core participants that closed proceedings are available. 23 Constable of Leicestershire Police, written submissions 24 In some instances, it may be better to err on the side 24 have been provided. Consistent with those submissions, 25 of caution and make borderline submissions in closed 25 the chief constable wishes to reiterate in particular

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1 that he takes this inquiry extremely seriously and has 1 The chief constable has no further submissions. 2 cooperated fully with it. His officers and staff have 2 THE CHAIR: Thank you, Ms Meredith. Ms Grey? 3 spent a considerable amount of time both investigating 3 Submissions by MS GREY 4 historic allegations, culminating in charges for 4 MS GREY: Madam, we provided a very short letter, at the end 5 a significant number of offences, and providing a large 5 of which we did stress on behalf of the Labour Party 6 volume of documentary material to the inquiry, including 6 that if the inquiry can find a way forward that respects 7 both contemporaneous material and statements prepared 7 the wishes of complainants to have the issues in this 8 specifically to assist under rule 9. 8 investigation examined and enables the inquiry to 9 The chief constable shares the great disappointment 9 contribute to learning from these issues, we would wish 10 of the complainant core participants that there is 10 the inquiry to do so, and that that could include the 11 a possibility that this investigation will be 11 use of closed sessions, if absolutely and strictly 12 discontinued and shares concerns that the hearings 12 necessary. Thank you, madam. 13 currently appear unlikely to proceed in their entirety 13 THE CHAIR: Thank you, Ms Grey. Ms Wilsdon? 14 in the public manner that had originally been 14 MS WILSDON: Nothing further, thank you, chair. 15 anticipated. 15 THE CHAIR: Thank you. Ms Reeves? 16 Regardless of which of the three proposed options is 16 MS REEVES: No, thank you, chair. 17 taken, the chief constable will continue to ensure the 17 THE CHAIR: Thank you. Mr Daw? 18 complete co-operation of Leicestershire Police in 18 MR DAW: Nothing from us, thank you. 19 providing all possible assistance to the inquiry. He 19 THE CHAIR: Mr Hynes? 20 further wishes it to be known that Leicestershire Police 20 MR HYNES: Nothing to add, thank you. 21 will have full regard to any recommendations made by the 21 THE CHAIR: Mr Friedman? 22 panel, whether in this investigation or others, and will 22 Submissions by MR FRIEDMAN 23 ensure in particular that those investigating child 23 MR FRIEDMAN: Thank you, madam chair. Myself and Mr Butler 24 sexual abuse are made aware of all relevant 24 represent Marion Janner and Rabbi Laura Janner-Klausner, 25 recommendations and take these forward in their work. 25 and although Mr Daniel Janner QC acts on his own behalf,

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1 he is aware of the submissions that I am about to make 1 At the heart of your dilemma are allegations, the 2 and he asks me to tell you that he supports them. 2 critical ones of which were not regarded as credible by 3 I should say that we have also served closed written 3 police and prosecutors at the time they were made, and 4 submissions that the core participants have all seen and 4 that can only be summarised in open session vaguely and 5 which do descend to the detail of the evidence and what 5 in the terms described correctly in your counsel's note 6 impact it would have on the future of the investigation 6 at paragraph 27, already referred to, that they are 7 strand, but, for reasons already well ventilated, I will 7 "central", both "in their own right ... and in respect 8 not be able to mention it in these open submissions. 8 of the context that they provide to other allegations 9 Madam, had there been a civil court case, had these 9 made against Lord Janner". 10 claimants not abandoned each and every one of their 10 No-one disagrees in open with that formulation of 11 claims in 2017, there was a long list of witnesses ready 11 the problem. The Janner family want the public to know 12 to confirm under sworn testimony that Lord Janner was 12 about these matters, not least because the charging 13 innocent of all of these allegations -- from his driver 13 decisions by the Crown Prosecution Service in 2014 and 14 to his assistants who were constantly by his side, to 14 the report issued by Sir Richard Henriques in 2016, 15 constituents, to fellow public servants from all 15 three weeks after Lord Janner died, did not do justice 16 political parties. Lord Janner was a law-abiding person 16 to the serious issues of credibility that surround these 17 who was a wonderful, loyal husband, father and 17 and other allegations that were made against their 18 grandfather. He was a devoted public servant with 18 father. 19 a proven track record of defending not only his 19 Had Lord Janner lived, it is the same evidence and 20 constituents, but people across the United Kingdom and 20 same issues of credibility that would have been relied 21 around the world. 21 on in an application to discontinue the criminal 22 The legal default position is Lord Janner's 22 proceedings, and it is the same evidence and issues of 23 innocence, and so the principal issue today is whether 23 credibility that Lord Janner's executors relied upon 24 the investigation of an innocent man should continue as 24 when standing firm in the face of claims and threatened 25 a discrete strand in the work of the inquiry. 25 claims of damages that were all dismissed, discontinued

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1 or withdrawn. It is for that reason that the family do 1 Operation Enamel. But the inquiry has no plans to 2 not want, and do not ask for, any closed hearings, 2 consider the credibility of those later allegations at 3 closed documents or confidential outcomes. They want 3 all. 4 transparency. It is the legislation which prevents 4 What your counsel have effectively conceded, five 5 transparency, not them. 5 years in, for matters beyond your control, is that the 6 It is the combination of those central allegations 6 continuation of this strand will not fairly resolve an 7 and the legislation which now causes your counsel to 7 irreconcilable conflict. In fact, and this is our 8 find themselves in what they describe as an 8 respectful submission, it will make it worse. 9 "unpalatable" position. What may be most unpalatable 9 With that introduction, may I then split our 10 for everyone is that the problem has always existed in 10 submission into three, dealing first with the general 11 this strand. 11 legal framework; second with our response on the Sexual 12 The completion of the IOPC report, which was 12 Offences (Amendment) Act; and finally summarise why we 13 necessarily important to wait upon, has now forced 13 submit that it is neither fair, proportionate nor 14 a confrontation with reality that this strand faced 14 possible to have an investigation that is true to its 15 effectively from the start. It focused on one 15 terms of revised reference, given the limited time 16 individual and, however one tries to qualify its 16 available, matched with the complexities involved. 17 fact-finding function, the subject matter concerns the 17 Our submissions on legal framework are set out in 18 quality of decisions taken by conscientious police 18 paragraphs 7 to 20 of our opening submissions. I am 19 officers and prosecutors acting in good faith and who 19 going to tailor our remarks, if I may, to respond to 20 genuinely believe that the allegations they were 20 what was submitted by others. First, as you have heard 21 investigating carried no reasonable prospect of 21 emphatically from your own counsel, there is no arguable 22 conviction. 22 ground to challenge any decision to discontinue based on 23 Thereafter, in the midst of the public outcry about 23 the frustration of a legitimate expectation. The 24 Jimmy Savile, most of the other complainants against 24 arguments put forward are plainly incorrect, both 25 Lord Janner came forward and were absorbed into 25 legally and factually. The core features of

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1 the doctrine of legitimate expectation are twofold, that 1 At paragraphs 23 and 25 of your determination 2 there must be, in the words of the case law, "a clear 2 in October 2019, you then continued to, using Mr Brown's 3 and unambiguous promise devoid of all relevant 3 words, retain all options, including the capacity to 4 qualification", and, two, even if there had been such 4 consider discontinuance even if there was no decision to 5 a promise, the courts will still determine whether it is 5 charge. This was despite an application, as has been 6 proportionate and fair to allow the promise to be 6 said, from Affinity Law and Howe & Co inviting you to 7 resiled from. 7 declare that you would definitely not discontinue, and 8 In our written submissions for today, at 8 despite Slater & Gordon citing the doctrine of 9 paragraph 8, we cited both the relevant paragraphs of 9 legitimate expectation, including a paragraph in the 10 Finucane that have been cited today and another case 10 Finucane case, with the implication that you were 11 decided by the Court of Appeal in Northern Ireland last 11 mandated to continue, come what may. 12 year called Barnard, and everyone had notice of those 12 It must be remembered that in paragraph 38 of their 13 citations. 13 submissions of 2 September, as has been read out today, 14 Judged against these well-established criteria, as 14 your counsel made it absolutely clear that, even if 15 a matter of fact, IICSA has never promised to continue 15 there was to be no criminal charge, it was not the case 16 with this strand, so the first threshold of the test has 16 that the strand would necessarily go ahead and that the 17 not been crossed. In fact, you did precisely the 17 "important and difficult decisions" were premised to lie 18 opposite in the determination of April 2017, where, at 18 ahead but, also, very importantly, it was regarded as 19 paragraph 34 you said the investigation would continue 19 absolutely essential that everyone should meet for this 20 on a revised definition of scope, but will be subject to 20 hearing in circumstances where they would have 21 review in the light of evidence that emerges from 21 sufficient disclosure and opportunity to make 22 ongoing investigations and litigation, and at 22 submissions. 23 paragraph 40, you expressly promised "to continue to 23 Relying on all of those matters, at the last hearing 24 keep under review the continuation of 24 we submitted that no legitimate expectation existed that 25 the investigation". 25 this investigation had to continue because the only

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1 promise that had been made by you was to keep matters 1 Barnard that we have cited, in which the PSNI in 2 under review, and I refer to the transcript at pages 59 2 Northern Ireland had repeatedly stated in writing and in 3 to 60. 3 public and to meetings with families that they would 4 Even if there had been a clear and unequivocal 4 commission and produce a thematic report on a number of 5 promise, the doctrine of legitimate expectation permits 5 murders within the border provinces in Northern Ireland, 6 the decision maker to change her mind. In the lead case 6 and they made a decision to change their mind without 7 of Finucane that has been referred to, the court 7 consulting anyone and without actually commissioning 8 considered whether a promise to commission a public 8 a review about why they should change their decision. 9 inquiry made to the victim's family by one government 9 In those circumstances, not surprisingly, with the 10 remained an enforceable promise when a subsequent 10 unequivocal promise and the failure to take matters into 11 government resiled. The courts would not intervene on 11 account in the way that we are doing right now, the 12 common law grounds to question the legality of 12 courts did quash that decision to discontinue. 13 the change of position. It should be recalled that was 13 It follows that there is no legal justification for 14 an unequivocal promise made in the context of the Good 14 the complainant core participants to hold you to 15 Friday agreement and the aftermath processes. 15 statements made by a previous chair in April 2015, when 16 A Canadian judge, Judge Cory, had recommended that the 16 the context has changed so fundamentally and to do so 17 previous government commission a public inquiry into the 17 would overlook the adjustments that you, madam, made to 18 killing of Pat Finucane. That government had 18 the overall structure of the inquiry and to this 19 unequivocally promised to do so. The subsequent 19 particular strand shortly after you became chair and 20 government looked at different ways to provide as much 20 Mr Altman became your lead counsel. 21 truth and clarity through disclosure and internal 21 Our second submission in law is that your public law 22 investigation as could be done and came up with an 22 duties do require you to continue to review whether you 23 alternative solution. That is light-years away from the 23 are acting effectively within your general terms of 24 situation here. I would also commend you to look at 24 reference and your selection criteria, not because you 25 a case on the other side of the coin, the case of 25 are selecting afresh, but because, if you have selected

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1 something and the facts change, it is perfectly rational 1 we make, and, quite frankly, it is not a radical one, it 2 that you should continue to ask whether your previous 2 is an obvious one. 3 decisions about selection apply to continuance. If 3 Our third submission of law is that, under 4 you're committed to keeping continuance under review, it 4 section 17 of the Inquiries Act, you have the duty to 5 follows all the more that you must consider whether your 5 act fairly and with regard to avoiding unnecessary 6 own selection criteria are still engaged, and that is 6 costs. Again, the inability to report on the evidence 7 the submission we do make about law because the relevant 7 that lies at the heart of this case undermines its 8 parts of the criteria require you to take into account 8 fairness and any investigations can only be advanced at 9 whether the case or context appears to be "practically 9 a disproportionate cost. 10 capable of detailed examination through oral and written 10 While counsel to the inquiry say there may be some 11 evidence and likely to result in currently relevant 11 benefit in testing witnesses again, the fact is that 12 conclusions and/or recommendations". Deciding whether 12 multiple inquiries have covered the same ground. The 13 those criteria would still be met, you must consider the 13 CPS and the Chief Constable of Leicestershire say they 14 terms of reference in respect of openness, which require 14 have learned crucial lessons. But if this investigation 15 you to -- these are the general terms of reference -- 15 is to add value, then it must be prepared to shine its 16 conduct the work of the inquiry in as transparent 16 light in corners that other inquiries have not, 17 a manner as possible, consistent with the effective 17 including the reasonableness of the decision to charge 18 investigation of the matters falling within the terms of 18 Lord Janner that was made in Operation Enamel and 19 reference, and having regard to all the relevant duties 19 whether it has been unfair to condemn any previous 20 of confidentiality. 20 decisions not to charge. 21 Now, it is obviously now questionable whether this 21 The duty under section 17 must also be read in 22 strand could ever be regarded as capable of delivering 22 accordance with the applicable protections under the 23 currently relevant considerations off the back of an 23 European Convention of Human Rights. Human rights, in 24 effective investigation if the core evidence and 24 this context, engage article 8 on privacy and family 25 reasoning cannot be made public. That's the submission 25 life, and they also engage article 10 on free speech.

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1 They do not engage a freestanding right under article 3 1 longer abstract problems. Based on the material 2 of the European Convention that will compel this 2 contained in closed submissions, where the only core 3 investigation to continue. As we said on the last 3 participant who did rise to the challenge to descend to 4 occasion, there is no duty under human rights law to 4 the evidential detail, as we understand it, is my two 5 investigate an historic failure to investigate and, in 5 clients. We have reached that stage. There is 6 any event, investigatory obligations arise where there 6 a serious risk of injustice in this case, precisely 7 is a prospect of criminal, civil and disciplinary legal 7 because the capacity to report on the detail could not 8 remedies, which we all now know for sure are no longer 8 do justice to the complexities of the allegations that 9 available. 9 Lord Janner faced, of which he was mostly unaware, or to 10 The pressing human rights problem that the inquiry 10 the integrity and concessions -- conscientious approach 11 must now confront is that the reputations of Lord Janner 11 that police and prosecutors brought to their work. For 12 but also retired and serving police officers, CPS staff, 12 the purposes of the open submissions, I can now say that 13 lawyers and others are all being interfered with, as is 13 the available evidence obviously vindicates the police 14 the grief and family name of his children, in 14 and prosecutors in the important decisions. There is no 15 circumstances where the public interest in continuing is 15 evidence of bad faith or improper motive or of any 16 sorely diminished because there can be no public inquiry 16 protection of Lord Janner because of his status as 17 into the central allegations in the investigation. 17 a prominent person in public life. Nothing that we have 18 It is of course only for a public hearing that the 18 been disclosed. 19 evidence can be received to show the world, and not just 19 At the same time, there are significant and 20 those in this room or the smaller amount of us that will 20 disturbing features relating to the credibility of 21 be in the room after the break, how Lord Janner was 21 allegations, especially the specific allegations that 22 actually treated, rather than resting on the untested 22 counsel to this inquiry have described as central. 23 misconception that he evaded justice, or, as the family 23 No-one could contest that if an inquiry goes ahead, 24 has good cause to submit, that justice has evaded him. 24 it will have to consider what police officers and others 25 Now, we have reached the stage where these are no 25 knew, or could reasonably have known, about complainants

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1 and how those decision makers exercised their judgment 1 history. 2 in assessing the credibility of those complaints. That 2 Another complainant was interviewed on multiple 3 is the only proper and fair way to judge the quality of 3 occasions when he made no mention of Lord Janner, only 4 institutional response to the allegations. 4 to claim that he attempted to do so, but was told by 5 Matters, therefore, going to a complainant's 5 police that they were not interested in what he had to 6 background, mental health, convictions, reputation for 6 say. The IOPC found no basis to conclude that these 7 truthfulness, motive, timing, general behaviour, 7 officers would have been told that Lord Janner had 8 including how they presented in meeting face to face, 8 committed child sexual abuse and then deliberately 9 and propensity for making allegations against others, 9 failed to record the complaint at all in any way. In 10 these are all factors which are inescapably relevant, 10 fact, the conduct of the very same officers showed that 11 and we have noted the acceptance of the same in the 11 that was not the way that they were working. 12 written submissions of Ms Leek for the Chief Constable 12 All of these people were complainants against 13 of Leicester that was served today. 13 Lord Janner whose allegations formed the subject matter 14 We have given examples in paragraph 35 and 14 of untried charges brought against him as a result of 15 paragraph 36 of our open submissions, one of 15 Operation Enamel. In that operation, when those who had 16 the complaints against Lord Janner investigated by the 16 made allegations many years previously were approached 17 IOPC was found to be "inherently flawed" because the 17 by police officers, they were simply asked whether they 18 complainant suggested that the CPS and then a police 18 confirmed their previous statements, without further 19 officer had told him not to mention Lord Janner and 19 enquiry of them. That cannot be regarded as best 20 offered to pay him £45,000 if he agreed. 20 practice in a case of this nature. But it is not being 21 Another complainant had a history of making and 21 suggested that that should form any part of your remit. 22 unmaking complaints against others, but not Lord Janner, 22 We mention all of this not because the Janner family 23 only to make a complaint several years later on the 23 are running a criminal or civil trial defence -- no-one, 24 basis that they were doing so to claim compensation, and 24 whether the complainants or Lord Janner's family, will 25 when there was evidence of a complex mental health 25 get justice on that -- it is to do with whether or not

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1 original investigations were too willing to doubt 1 in a period covered by the 1992 Act. This means that 2 complainants, just as later investigators were too ready 2 reporting prior to the allegation and/or before the Act 3 to believe them. On this, there should be a move to 3 came into force would not constitute a defence to later 4 audit both the decision making of Operation Enamel and 4 reporting of the same allegation. 5 the decision making of Sir Richard Henriques. That all 5 Counsel to the inquiry are correct, therefore, to 6 being the case, there is really no answer to the 6 warn us all that the Act applies notwithstanding past 7 conclusion that this investigation would be seriously 7 press or public reporting. 8 emptied of its value and, therefore, its rational 8 The real dispute, therefore, comes from those who 9 connection for all involved if evidence and reporting on 9 say that because the inquiry has the power under the 10 matters relating to its core allegations were withheld 10 Inquiries Act 2005 to restrict publication of its 11 from the wider public domain. I can say in open, again, 11 proceedings, you would unreasonably fetter your 12 that the credibility issues that arise in this case are 12 discretion to refuse to use that power in this case to 13 complex and extraordinary, and any Janner investigation 13 evade the problem of the 1992 Act. With respect, that 14 would only provide a case study in something utterly 14 misses the point. 15 unique, making its continuation, therefore, a seriously 15 Everyone accepts that you have the power to do this. 16 disproportionate interference with rights under 16 The question is whether it is fair and proportionate to 17 articles 8 and 10. 17 do so when it would lead to hearings that could not be 18 Those are our submissions on general matters of law. 18 reported and a final report that was heavily redacted. 19 May I now turn briefly to your counsel's analysis of 19 We say it would not. The unfair consequences of 20 the Sexual Offences (Amendment) Act 1992. For reasons 20 the prohibition on identification are compelling. Core 21 set out in paragraphs 17 to 23 of our open submissions, 21 aspects of the evidence that would explain why 22 we say that they are correct. The way that we can put 22 investigative and/or charging decisions were made would 23 the matter in open, and we have done it at paragraph 19 23 be withheld from the public scrutiny. Highly 24 of our document, is that exposure to criminal law 24 significant matters of relevance that have been detailed 25 penalty arises on the date that the allegation is made 25 and analysed in the IOPC report would be withheld from

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1 wider publication. 1 occur and continue under human rights law or domestic 2 The prohibition against publication would also empty 2 law, and as they had to occur, then closed and 3 any remaining utility of the investigation. It would 3 restricted evidence features were used in order to 4 essentially duplicate the IOPC process in private, 4 discharge that mandate. 5 superficially, and at a greater further expense, 5 Now, that is how the inquiries came into being 6 probably ratifying its conclusions rather than allaying 6 concerning the Manchester Arena bombing, the deaths of 7 public concerns, which is the function of a public 7 Azelle Rodney and Anthony Grainger; and the poisoning of 8 inquiry as set out in section 1 of the Inquiries Act 8 Alexander Litvinenko. They all began as mandatory 9 2005. A non-reportable hearing and/or a redacted report 9 inquests, but had to be converted into public inquiries. 10 would serve, at best, to baffle the public and, at 10 That was because sensitive evidence that it was 11 worst, to compound the remaining disputes. 11 otherwise unlawful to disclose into the public domain, 12 Conclusions that hold that institutions acted 12 including to the bereaved families, could then be 13 properly would be met with claims of coverup. The 13 adduced in closed hearings in their absence. 14 converse will understandably be condemned as unfair, not 14 The exceptional and unattractive situation is 15 least because those individuals who were criticised 15 enabled under the Inquiries Act 2005 where the interests 16 could never defend their actions in the public domain. 16 of effective and adequate independent inquiry would not 17 Either way, a non-reportable hearing and a redacted 17 otherwise be possible at all. 18 report would fail to deliver any substantial utility to 18 The other example mentioned is the undercover 19 case study lesson learning and context-informed 19 policing inquiry, which of course has been dogged by 20 recommendations. 20 delay and controversy on this very issue. Be that as it 21 Now, others have suggested that because there is 21 may, the inquiry has to be seen as part of an array of 22 precedent for closed or partially closed public 22 special measures -- "that inquiry", I should say. That 23 inquiries, then this inquiry must -- not can, but 23 inquiry has to be seen as part of an array of special 24 must -- follow suit. What that submission fails to 24 measures that states have to take to investigate in 25 appreciate is, those inquiries cited were mandated to 25 private matters relating to the function of the security

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1 services and policing which, by their very nature, would 1 preparing this investigation for a hearing in the third 2 be completely devalued and made redundant if their 2 week of October. There has been no update on what the 3 content was investigated in public. 3 further inquiry work on disclosure would entail, 4 On this, there is human rights case law, including 4 notwithstanding the references globally, I accept, to 5 Kennedy v United Kingdom in Strasbourg and Tariq v the 5 100,000-plus pages and the like in the last hearing and 6 Home Office in the Supreme Court, in which it has been 6 before it. 7 explained that where states are mandated to investigate 7 If the investigation continues, we will be 8 or adjudicate on such security issues, they will equally 8 respectfully obliged to press for reconsideration about 9 be allowed to do so in private and subject to further 9 the role of one panel member. I make it plain -- we 10 derogation from orderly principles of natural justice. 10 have done so already, but for the purposes of 11 The complainant core participants today have not yet 11 the public -- only with regard to the perception of 12 explained why their examples of mandated investigation 12 justice. Ms Sharpling had professional contact with 13 using exceptional measures, for unavoidable reasons, are 13 both Operation Enamel and Chief Constable Creedon. The 14 an answer to continuing an investigation that was chosen 14 change of circumstances would be that it is proposed 15 because of its potential to act as a vehicle for 15 that the charging decisions in Operation Enamel should 16 accountable public case study lesson learning. They 16 not be considered at all, and that the complete 17 have not done so, and we assume they won't be able to do 17 exoneration of Mr Creedon by the IOPC should be 18 so because there is no answer to that. 18 re-opened. 19 If I could draw our submissions to conclusion, we 19 We remain surprised, to say the least, that it could 20 agree with the reasons for discontinuance provided by 20 be suggested that the Operation Enamel charging 21 your counsel, but respectfully do go further upon the 21 decisions, including the process by which they were 22 invidious complexities that render this investigation 22 arrived at, can be left uninvestigated. We have not 23 unworkable and lacking the capacity or the justification 23 seen what may be extensive disclosure that your counsel 24 to realise the purpose for which it is being conceived. 24 have seen, including, potentially, the waiver of legal 25 There remain serious practical difficulties in 25 professional privilege in matters relating to legal

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1 advice, and the kind of documentation about decision 1 closed submission, that you have to, with respect, look 2 making that's been summarised in the IOPC report for the 2 at what unused material was made available to 3 earlier decisions. We have seen none of that. 3 Sir Richard for his first open report on Janner ten 4 But this is not a judicial review that we are 4 months before the second report; all the more so because 5 proposing. It is a public inquiry. The beauty of 5 he acknowledged his debt to "the complete knowledge of 6 a public inquiry is, one does exactly the kind of 6 the history of these events" to a named counsel, the 7 things, in looking at the decision-making notes and 7 same counsel who has also acted for the CPS in the 8 looking under the cover of legal professional privilege 8 prosecution decisions concerning Lord Janner. That is 9 when it comes to decisions like this, in order to 9 a not a personal criticism of anyone. It just 10 establish to public satisfaction that things were right: 10 underscores the work that the inquiry would need to do 11 there was no criminal trial, this isn't a judicial 11 for itself to reach an independent analysis. But there 12 review. That, we submit, should be part of 12 is a much more fundamental reason to end this ordeal 13 the investigation. If you are truly an independent 13 now. More important than anything else is that the 14 inquiry seeking to add value, then you must take account 14 investigations of allegations involving the late 15 of what Enamel and Sir Richard Henriques have done, but 15 Lord Janner of Braunstone QC were never a matter of 16 be in deference to neither. The multiple allegations 16 cries unheard. Now we have read in-depth the evidence 17 made against Lord Janner by Carl Beech and others like 17 contained in the IOPC report, we can see how seriously 18 him cannot be wished away. By the time of 18 officers took the claims that were made. They often 19 Sir Richard Henriques second investigation report 19 recorded interviews even before that became standard 20 in October 2016, he had become concerned about 20 practice. They noted their actions, followed up many 21 a mind-set that had taken hold in national policing 21 leads, absent any pressure from either within or outside 22 after 2012 that treated a complainant as a victim and 22 Leicestershire Police. They did not regard the 23 which treated a complaint as believable until somehow 23 allegations as crossing the threshold of being capable 24 shown otherwise. 24 of leading to a conviction for the reasons that we all 25 We also do say, and we will develop this in the 25 have to accept can only be explained in a private

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1 hearing. 1 the outside. The inquiry came involved too quickly in 2 There was no conspiracy, no coverup, and no 2 2015, without appreciating its true complexities. Given 3 institutional failing. Prominence was irrelevant. 3 what you now know, it is undeniable that the strand was 4 Greville Janner did not seek different treatment and nor 4 misconceived from the start. The end will inevitably be 5 was he granted it. 5 treated as controversial by those who cannot be fully 6 We submitted at the hearing in September that it was 6 informed of the true reasons behind your judgment, but 7 incumbent on the inquiry to think about the human cost. 7 therein lies the problem. It is not possible for this 8 It must be for others to safeguard the well-being 8 inquiry to do justice to this matter. The reasons have 9 concerns they have for their clients. My clients cannot 9 nothing to do with the Janner family and nothing to do 10 join with the complainants in some dignified agreement 10 with Lord Janner. They are to do with the nature of 11 to disagree. Their differences are too severe. The 11 the evidence and the only purpose that you deemed it 12 Janner family can also hardly be in gratitude to the 12 proper to maintain the strand. Delay has been agonising 13 inquiry that it has belatedly decided not to make 13 for this family and it has not served the public 14 findings on the truth of allegations against a dead man, 14 interest. It is time to stop. Thank you. 15 only to give the impression that the decision to charge 15 THE CHAIR: Thank you, Mr Friedman. Mr Jacobs? 16 Lord Janner made in Operation Enamel were beyond 16 Submissions by MR JACOBS 17 criticism and, therefore, correct. 17 MR JACOBS: Madam chair, thank you. I appear instructed by 18 But it is important to recognise now that the 18 Howe & Co for F54 and I am instructed by Affinity Law 19 experience of the investigation hanging over the family 19 for Tracey Taylor, Timothy Betteridge, E1 and E4. 20 for five years has been a ghastly invasion of their 20 I should clarify that Affinity Law have four ongoing 21 grief. Its subject matter hung over them when their 21 civil cases in the Royal Courts of Justice which arise 22 father was dying, and some of it hung over them from an 22 out of allegations against Lord Janner. The inquiry has 23 earlier date and for highly unusual reasons that we have 23 received our submissions dated 6 February 2020 and 24 detailed in writing. 24 a speaking note dated 17 February 2020. 25 The case is simply not what it seemed to others from 25 Chair, the main issue that we wish to deal with

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1 today is the suggestion put to you that you discontinue 1 consider the conduct of the Kirkwood Inquiry at which 2 this inquiry due to a procedural issue arising from the 2 Lord Janner gave evidence, but in private, and his 3 anonymity of a single individual. Chair, my primary 3 evidence was not set out in the report. The 4 point is that there is no legal authority for 4 investigation is particularly important when one 5 discontinuation of an investigation within a national 5 considers the events which inform the establishment of 6 public inquiry which has been under way for five years 6 this inquiry. The chair and panel will be aware that 7 on the basis that closed hearings may be required. 7 this inquiry was instigated in the wake of the Savile 8 What the inquiry is being asked to do is 8 disclosures and Operation Yewtree amid public 9 unprecedented and all the more extraordinary because 9 incredulity that a prominent individual such as Savile 10 parliament has specifically legislated for closed public 10 was not investigated by the authorities or that concerns 11 inquiry hearings in this very scenario through 11 were not raised or acted upon by institutions with 12 section 19 of the Inquiries Act and we have set out the 12 responsibility for the care of children." 13 provisions of that section at paragraph 28 of our 13 Chair, the public will be no less incredulous, if, 14 written submissions. 14 after five years, the only investigation in this 15 Chair, at the last preliminary hearing, back on 15 investigation charged with investigating institutional 16 24 September 2019, Mr Altman QC summarised the scope of 16 responses to allegations concerning a prominent 17 this investigation by saying, and I quote: 17 individual is discontinued due to evidential 18 "In short, this is an investigation about how 18 difficulties, difficulties which parliament anticipated 19 institutions responded to allegations of child sexual 19 and provided for within the Inquiries Act 2005. 20 abuse made against a prominent politician in the 1990s 20 There is an air of unreality about the action that 21 and the first decade of this century. The institutions 21 the inquiry has been advised to take. The failure to 22 which will be scrutinised are manifold and wide ranging, 22 scrutinise abuse relating to a prominent individual is 23 including Leicestershire Police, the Crown Prosecution 23 what the inquiry should be investigating. With respect, 24 Service, Leicestershire County Council, the Labour Party 24 it is not what the inquiry should actually be doing. 25 and certain government departments. The panel will also 25 The proposed discontinuation is all the more

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1 perplexing because all that is required for the 1 is not the first occasion on which I have needed to take 2 investigation to proceed is the adoption of 2 instructions as to how my clients would be affected by 3 the section 19 procedure which parliament has put in 3 this investigation not proceeding. You will recall, on 4 place, and we have seen the timetable and there is 4 2 September 2019, counsel to the investigation canvassed 5 nothing, I say, that is objectionable about that 5 the possibility that the investigation may have to be 6 timetable. 6 discontinued because of the possibility of parallel 7 As Ms Leek QC for Leicestershire Police has stated, 7 criminal proceedings, and concerns that the hearing 8 there is ample precedent for holding public inquiries 8 would need to conclude by November 2020 to enable the 9 which are held in private -- and we have heard 9 inquiry's final report to be published by March 2022. 10 Litvinenko, Undercover Policing, Anthony Grainger, the 10 Now, at that time, it was the view of CTI that the 11 Rodney Inquiry, to name but four. Mr Friedman QC sought 11 investigation would be in jeopardy unless the CPS were 12 to distinguish those inquiries because they were 12 to confirm by 6 January 2020 that the prosecution of 13 mandated under human rights provisions, but, of course, 13 a particular individual would not go ahead. My clients 14 the chair and panel will be aware that closed procedures 14 objected, all of them objected, strongly to the prospect 15 have already been used to good effect within this 15 that the investigation may not have proceeded. 16 inquiry process, and we have referred you in our 16 Thankfully for my clients, the CPS did confirm in 17 submissions to the closed sessions of the Westminster 17 early January that there would be no prosecution and 18 and internet hearings, the Labour Party has referred you 18 those who instruct me wrote to your legal team 19 in their submissions to the detailed anonymised evidence 19 highlighting that and confirming and asking for 20 in the Ampleforth and Downside reports and the 20 confirmation consistent with the inquiry's written 21 Undercover Policing Inquiry will adopt closed procedures 21 position that the investigation would now proceed. 22 and will be heard shortly in this very room. 22 Yet, just a few days later, on 17 January 2020, your 23 Chair, before I turn to the legal position, I should 23 legal team told my clients that the investigation may 24 say something about the effect of discontinuation of 24 not proceed for an entirely different reason. Chair, as 25 this investigation on my clients. Unfortunately, this 25 you can expect, my clients have been traumatised by this

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1 sudden and unexpected development. F54 is currently in 1 consider any decision to discontinue the investigation 2 an intensive care unit. He has previously delayed 2 as, in his words, another coverup and that he would 3 important surgery to attend preliminary hearings in this 3 always believe that the decision to do so would have 4 investigation and he has told us that this investigation 4 been motivated by improper influences. 5 and the opportunity for some kind of closure is the only 5 Chair, time and time again, the inquiry has stated 6 thing that is keeping him alive. 6 that the position of victims and survivors must be at 7 Tracey Taylor states that the investigation will 7 the forefront of the inquiry's considerations. The 8 enable her to free herself of a burden she has been 8 terms of reference make it clear that the panel is to 9 carrying since childhood. E1 instructs he cannot have 9 consider the experience of survivors of child sexual 10 urgently-needed treatment for post-traumatic stress 10 abuse, providing opportunities for them to bear witness 11 disorder until the conclusion of this investigation 11 to the inquiry, having regard to the need to provide 12 because only then, he has been told, will he have 12 appropriate support in doing so. We ask that you pay 13 necessary closure which will enable him to respond to 13 particular attention to the impact that any decision to 14 that treatment. 14 discontinue this investigation will have on the victims 15 E4 states that, were the investigation to be 15 and survivors who have come forward to assist the 16 discontinued, he would be angry that his abuser and the 16 inquiry in this important investigation. 17 agencies which he says covered up the abuse will have 17 We ask you also to consider the impact that 18 evaded scrutiny yet again. E4 further instructs that, 18 a decision to discontinue this investigation because 19 should the chair decide to stop the investigation, it 19 procedurally open hearings effectively are preferable to 20 would feel to him as though he were being abused all 20 closed hearings will have on the integrity of the whole 21 over again. 21 inquiry process and the goodwill that this process has 22 Tim Betteridge states that the only good thing that 22 generated amongst thousands of victims who have invested 23 has come out of his traumatic childhood is the ability 23 in it. 24 to be part of something that will prevent sexual abuse 24 What message will be sent if an investigation into 25 from happening to other children. He says he would 25 how an important and influential peer was able to evade

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1 and avoid scrutiny is discontinued, at least in part -- 1 investigation would not proceed to a full hearing. On 2 and it is a strong perception that my clients have -- 2 11 April 2017, chair, you gave a comprehensive 3 because of pressure brought to bear by his important and 3 determination in response, amongst other things, to 4 influential family? 4 submissions from parties who were opposed to the 5 The legal position. Chair, in relation to the legal 5 investigation. 6 position, it is our case that discontinuing the 6 You, we say unequivocally, determined that the 7 investigation for reasons set out by counsel to the 7 investigation was to proceed. In making this 8 investigation and also on behalf of the Janner estate 8 determination, you properly applied section 17 of 9 would be unlawful for a number of reasons, and I will 9 the 2005 Act to act with fairness and with regard also 10 cite three. 10 to the need to avoid any unnecessary costs, whether to 11 Firstly, our core participant clients have been 11 public funds or to witnesses or others. 12 involved in this process for a number of years and are 12 Now, Mr Friedman QC has said that this was subject 13 entitled to a legitimate expectation that the 13 to review, but that doesn't undermine the position of my 14 investigation will proceed. Now, we have heard quite 14 clients. It was always going to proceed. 15 a bit about legitimate expectations this morning, and, 15 The context has not changed. 16 generally, the case of Nadarajah is the leading 16 Now, no challenge was made to that determination by 17 authority, the traditional case, that says where 17 any party, at least no challenge that we know of or 18 a public authority has issued a promise or adopted 18 which succeeded or perhaps could have done so. 19 a practice which represents how it proposes to act in 19 We submit that the determination -- well, the 20 a given area, the law will require the promise or 20 calling of the inquiry in 2015 and the determination 21 practice to be honoured unless there is good reason not 21 of April 2017 confirming it would continue individually 22 to do so. 22 and cumulatively gave rise to a legitimate expectation 23 Now, in April 2015, this investigation commenced. 23 that the inquiry would proceed. 24 At the first preliminary hearing, in March 2016, there 24 So in September 2019, the position of the inquiry 25 was no indication from the inquiry that the 25 was clear. It was accepted that the inquiry would

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1 proceed, in the event that the CPS reached a decision 1 undertaking has been made, that an inquiry will proceed, 2 not to prosecute the individual to which it had been 2 we say. The authority giving that undertaking will not 3 referred, by early January 2019. Now, we maintained at 3 be allowed to depart from it unless it has shown that it 4 that hearing that discontinuation would have been 4 is fair to do so. The court is the arbiter of fairness 5 unlawful in any event. If we are wrong in relation to 5 in this context and a matter sounding on the question of 6 the expectation arising in 2015 or 2017 or 2016, it 6 fairness is whether the alteration in policy frustrates 7 certainly arose after the resolution of the prosecution 7 the attachment that other groups place on it to rely 8 issue in 2019. 8 upon it. This is quite different from saying that it is 9 Now, the risk arising from jigsaw identification was 9 a prerequisite of a substantive and legitimate 10 raised at paragraph 36.5 of CTI's note of 10 expectation claim that a person relying on it must show 11 2 September 2019, but we say it was presented as 11 that he had suffered a detriment. But the case 12 a hypothetical and a minor obstacle. The wording is 12 confirmed you don't necessarily have to show you 13 "there may be a substantial risk". We do not accept 13 suffered a detriment. 14 that the contents of that note undermine our clients' 14 But at paragraph 68, when one looks at what the 15 position in relation to expectation in any way. There 15 undertaking was, the Supreme Court say: 16 was no indication in that note that the jigsaw 16 "The critical undertaking given by the government 17 identification point could not be resolved in a way that 17 was that the public inquiry would have to be conducted 18 is lawful, fair and acceptable to the individuals 18 under new legislation in due course, the 2005 Act. That 19 concerned, because there is always section 19. 19 there was a plain and explicit undertaking that a public 20 Now, counsel to the investigation has referred in 20 inquiry would take place cannot be doubted." 21 his submissions, and Mr Friedman has as well, to the 21 There has always been a plain and explicit 22 case of Finucane. That case, and Barnard, related to 22 undertaking here that this inquiry would take place. So 23 article 2 of the ECHR Inquiries and paragraph 52 of 23 neither authority is any proposition to assert that 24 Finucane confirms the existing law in Nadarajah, and it 24 there wasn't a legitimate expectation that this inquiry 25 bears repeating, where a clear and unambiguous 25 would take place and would proceed.

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1 In Finucane at paragraph 76, when one looks at 1 investigations in 1991, 2002 and 2007 and those findings 2 resiling from the undertaking that is given, the court 2 have been accepted by the CPS and Leicestershire Police. 3 held that where political issues overtook a promise 3 More recently, the Nori Report considered whether 4 given by government and where contemporary 4 individual officers -- whether there were cases to 5 considerations impelled a different course, then, 5 answer before a misconduct tribunal. You heard 6 providing a bona fide decision was taken on genuine 6 submissions on this point this morning by Mr Altman who 7 policy grounds not to adhere to the original 7 stated that the authors of the Nori Report were not 8 undertaking, it was difficult for a person holding 8 charged with making any overarching assessment of 9 a legitimate expectation to enforce compliance with it. 9 individual conduct. 10 So we say, if one applies that test, one would need 10 Sir Richard Henriques commented that his reports 11 to be satisfied that there are bona fide political 11 were concerned with narrower issues than this inquiry. 12 issues for this investigation to be discontinued or 12 We have set that out in our full note. And the judge 13 there are contemporary considerations which impel the 13 was at pains to highlight that his enquiry is different 14 discontinuation of the investigation. I submit that 14 from, and distinct from, this inquiry. 15 there are none in this case whatsoever. There is no 15 The same is true of the Nori Report. It cannot 16 political change, no political will for this matter not 16 rationally be seen as any justification to discontinue 17 to be heard that's a bona fide motivation, and there are 17 this investigation or frustrate my clients' legitimate 18 no contemporary considerations. 18 expectation that the hearing in October 2020 will 19 So the Janner estate maintains that the Nori Report 19 proceed. 20 amounts to a material change of circumstances upon which 20 Chair, likewise, the inquiry should reject the 21 the inquiry should effectively revisit its determination 21 assertion made on behalf of the Janner estate that IICSA 22 of 11 April 2017. Now, in relation to what's said about 22 has a policy which has been brought into question by 23 Nori and the Henriques Report, you will be aware that 23 certain circumstances, and I presume that what's being 24 in January 2016 Sir Richard Henriques found there had 24 spoken about here is the Nori Report. The cases that 25 been sufficient evidence to prosecute after 25 support this suggestion -- SK Zimbabwe and Lumba --

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1 concern the Secretary of State for the Home Department's 1 So, as I said earlier, there is no authority for the 2 policies in relation to the detention of immigration 2 proposition that it would be reasonable or lawful for an 3 deportees. They have no application in public 3 inquiry to discontinue an investigation as a result of 4 inquiries. There is no policy to discontinue the 4 concerns the remedies of which are contained in primary 5 investigation that you have to follow or apply, and 5 legislation. 6 I would ask you to reject that submission. 6 It has also been submitted on behalf of the Janner 7 The second basis is the Wednesbury principle, the 7 estate that section 17(3) of the Inquiries Act must be 8 second basis upon which discontinuing this investigation 8 read in accordance with rights under articles 8 and 10. 9 would be unlawful. That is that it would be so 9 The passage that you were referred to in the written 10 unreasonable that no properly directed inquiry chair 10 submissions is paragraph 36 of the judgment of 11 could make such a decision. 11 Lord Justice Toulson in the Associated Newspapers case. 12 We say that any decision to discontinue would reach 12 However, Lord Justice Toulson was making a different 13 this level of unlawfulness, irrationality, because the 13 point, that a duty of fairness does not exist in 14 obvious answer to the jigsaw identification issue is 14 a vacuum and that the starting point for consideration 15 provided by section 19 of the 2005 Act. 15 is the terms of reference, and that some of the factors 16 Now, counsel to the investigation has referred to 16 relevant to conducting the inquiry fairly are also the 17 the Associated Newspapers v Lord Justice Leveson case in 17 subject of articles of the Convention, particularly 18 relation to Wednesbury principle, but in that case the 18 articles 8 and 10, but they do not add anything to the 19 court upheld an exercise of section 19 of 19 statutory duty. 20 the Inquiries Act notwithstanding the presumption of 20 So the human rights arguments I would ask you to 21 open justice, and that case is an illustration of 21 disregard. They don't go to the core of the point that 22 the fact that an inquiry should proceed, applying 22 you are being required to decide. 23 section 19, and it is unreasonable to close a process 23 Chair, the third basis upon which we say any 24 down when section 17 would remedy for that particular 24 decision to discontinue would be unlawful is in relation 25 situation. 25 to section 17 itself. The advice which CTI has given to

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1 you and the panel would, we say, bring about an 1 The waste of public funds in stopping this process 2 unjustified breach of the inquiry's statutory duty to 2 now would be substantial and would be disproportionate 3 act with fairness and with regard also to the need to 3 and that feeds straight into your duties under 4 avoid any unnecessary costs, whether to public funds or 4 section 17. So we say, for those three reasons, 5 witnesses or others. Aside from the trauma and distress 5 a decision to discontinue now would be unlawful: 6 that such a decision would visit upon my clients, the 6 legitimate expectation, unreasonableness and failing to 7 waste of already expended funds would be 7 act in accordance with the statutory duty under 8 disproportionate. We heard from counsel to the 8 section 17 of the 2005 Act. 9 investigation on 24 September 2019 that the inquiry team 9 Now, I need to deal with the justification for the 10 has already instructed experts whose reports have been 10 action proposed by CTI which is set out at paragraph 52 11 used in other investigations in this inquiry, obtained 11 of the recent note. Counsel to the investigation has 12 extremely detailed corporate statements from 12 pointed to nine disadvantages in proceeding by way of 13 Leicestershire County Council and Leicestershire Police, 13 closed hearings from which he invites the conclusion 14 searched for, obtained and reviewed a vast range of 14 that the investigation should not proceed in this way. 15 materials from organisations including the 15 Now, I'm looking at the time before I go from 16 Kirkwood Inquiry, the Metropolitan Police, the 16 numbers 1 to 9. Do you wish me to continue or continue 17 Labour Party and the Cabinet Office, the Department of 17 after the lunch break, chair? 18 Health and Social Care, the security and intelligence 18 THE CHAIR: How much more time will you require? 19 agencies, the Henriques Inquiry, the London School of 19 MR JACOBS: Probably 15 minutes. 20 Economics, NSPCC, it goes on, the Community Security 20 THE CHAIR: No, I think we will take the lunch break now and 21 Trust and of course Leicestershire Police, 21 return, from a shorter break, at 1.45 pm. 22 Leicestershire Council, CPS and IOPC. Hundreds of 22 (1.00 pm) 23 thousands of pages have been provided to the inquiry, 23 (The short adjournment) 24 and the inquiry has also obtained witness statements 24 (1.45 pm) 25 from a wide range of potential witnesses, including F54. 25 THE CHAIR: Mr Jacobs?

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1 MR JACOBS: Thank you, chair. So moving to the responses to 1 for the closed hearings, and when one looks at the 2 the nine reasons put forward by CTI as to why the 2 entirety of the context, there simply is not a good 3 investigation should not continue, the first reason 3 reason not to hold a hearing in large part in private. 4 given is that the principle of open justice is 4 The second reason is, it is said that closed 5 constitutionally important and requires that closed 5 hearings inhibit the allaying of public concerns. This 6 procedures are used sparingly. This is a statement of 6 issue, I submit, or this problem, if it is such, is 7 principle. It doesn't amount to an obstacle to the 7 substantially mitigated by the ability of core 8 investigation proceeding. It is not suggested that 8 participants and their legal representatives to be 9 closed procedures would not be used unless where 9 present during the closed sessions. Public concerns 10 absolutely necessary. We have seen, as I said, the 10 will also be allayed through the scrutiny by a respected 11 timetable produced by CTI and, if that is the extent of 11 and trusted panel of matters which gave rise to public 12 closed hearing that is necessary, then it cannot be said 12 concerns which led to an inquiry being called. 13 that the procedure will not be used sparingly. 13 Now, of course, the converse of CTI's second point 14 The issue in relation to conflict between the 14 is true: would discontinuing the investigation allay 15 holding of an enquiry in closed hearings where necessary 15 public concerns? And we say of course not. So that 16 and a principle of open justice was resolved in the case 16 reason must be discounted. 17 of Kennedy v Charity Commission, a Supreme Court case of 17 The third point raised is, it's stated the lack of 18 2014, and at paragraph 128 of the judgment it says that 18 public hearings undermines the rationale for continuing 19 the court held that the test is whether there is good 19 the investigation. We say, chair, that this proposition 20 reason to hold a hearing in private and for not allowing 20 is simply incorrect. The 2005 Act provides for this 21 public access to information about the process of 21 exact scenario. It was clearly intended by parliament 22 the inquiry and reasons for the outcome of the inquiry. 22 that closed hearings would form part of the public 23 I say that context is everything here, and of course 23 inquiry process where necessary. 24 section 18 of the 2005 Act, which provides for public 24 Now, in relation to the rationale for continuing the 25 hearings, must be read with section 19, which provides 25 investigation, chair, the House of Lords Select

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1 Committee, on the Inquiries Act 2005, gave a number of 1 the core participants for whom this inquiry has been 2 reasons or purposes for inquiries, and the purpose of 2 established. 3 inquiries, it is said, is to establish disputed facts, 3 Now, you could say, for example, we heard evidence 4 determine accountability, restore public confidence and 4 in some detail from a witness who cannot be identified 5 prevent recurrence of events that gave rise to concerns 5 and neither can the inquiry provide information that 6 through taking forwards public policy. All of these 6 could lead to jigsaw identification, you could set out 7 objectives can be achieved if the investigation 7 what that is. You could then say all core participants 8 continues. 8 were present in person or via their representatives when 9 In addition, it's been identified that another 9 evidence was given in closed session and fully 10 purpose for an inquiry is to provide a degree of 10 participated in the hearing, and then, having considered 11 catharsis for complainant core victims and other victims 11 that evidence in detail, we make the following findings 12 whose complaints in respect of high-profile individuals 12 concerning institutional responses, and then, in light 13 were not handled correctly. 13 of those findings, we make the following 14 So the rationale for continuing the investigation, 14 recommendations. 15 I submit, is not undermined by holding hearings in 15 That's all perfectly intelligible and, if properly 16 private where it is necessary to do so. 16 explained, it's not right to say that the public would 17 The fourth reason is it is said there would be no 17 not think that the matter hadn't been properly addressed 18 substantial public report. In our submission, this 18 in a public report. 19 concern is remedied through good drafting and 19 The fifth point that's made is headlines, it is 20 summarising the gist of the evidence, setting out the 20 said, would do little to assist public understanding. 21 rationale for the closed procedures in the introduction 21 Again, we say that this concern is not made out. 22 to the report, and the public would be aware, through 22 Headlines can properly summarise the issues and the 23 a well-drafted report, that the public concerns raised 23 findings without rendering any findings or reasoning 24 by this investigation had been forensically examined and 24 unintelligible. 25 scrutinised with the assistance and participation of 25 Sixthly, chair, the point is made that, in relation

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1 to fairness to witnesses, it's said a cloud would be 1 would be conducted in accordance with the terms of 2 cast over individuals involved. I say there's no merit 2 reference, and the report and conduct of the proceedings 3 in this suggestion. The basis upon which the 3 would be as transparent as possible. The key words are 4 fact-finding exercise was conducted could be clarified 4 "as possible". 5 in the report with the appropriate caveat inserted if 5 When one looks at the reference terms, they're all 6 necessary. The focus of the investigation is, of 6 unaffected, I submit, by the holding of 7 course, institutional failure, rather than a failure of 7 the investigation in closed session. At the last 8 specific individuals, and, clearly, if an institution is 8 preliminary hearing, Mr Altman QC stated: 9 at fault, those individuals who took key decisions which 9 "The inquiry's terms require it to consider the 10 led to preferential treatment or a culture where 10 extent to which state and non-state institutions have 11 high-profile persons were treated differently, you could 11 failed in their duty of care to protect children from 12 reasonably understand that they may have some 12 sexual abuse and exploitation. The reference terms 13 culpability. That is not a reason not to conduct this 13 specifically state that those institutions include the 14 investigation. 14 police and prosecuting authorities, as well as political 15 Seventhly, it is said it would be difficult to 15 parties, local authorities and government departments." 16 express in the final report how findings are influenced 16 So the reference terms of the inquiry, I submit, are 17 by this investigation. Now, if gisting or proper 17 not compromised by holding the hearings in significant 18 summarising measures are applied and the basis for the 18 part in closed session. 19 closed sessions is properly explained, that, I submit, 19 The ninth and final reason given by counsel to the 20 would not result in any difficulty with the readers of 20 investigation is, if the inquiry cannot have a fully 21 the report being able to understand how findings have 21 public hearing, the financial and emotional costs of 22 been made. 22 a closed hearing are not proportionate to the result 23 The eighth point, chair, it is said the terms of 23 that can be achieved. Chair, that is the part that is 24 reference refer to the work being conducted in as 24 the most objectionable to my clients. This submission, 25 transparent a manner as possible. Now, the work, I say, 25 this point, entirely turns the views of the complainant

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1 victim and survivor core participants on its head. In 1 to informing public discourse and allaying concerns. We 2 relation to financial costs, well, you have heard what 2 say that is simply not right. I have referred you in 3 I have said about public disproportionate waste of funds 3 our written submissions to paragraph 1.8 of 4 already incurred. In terms of emotional costs, the 4 the Henriques Report and paragraph 1.84, where the 5 victims and survivors have invested themselves 5 judge, in particular, made the point that the task of 6 emotionally in the inquiry process for many years, and 6 this inquiry is considerably more expansive and 7 this April it will have been five years since the 7 ambitious than his own. 8 investigation was opened, and many of my clients, 8 To conclude, you will know, chair, that you enjoy 9 I believe, have been involved since 2016. 9 a wide discretion in relation to case management. 10 So, in relation to what's said about whether the 10 Mr Altman QC has said this morning that if you decide 11 financial and emotional costs of a closed hearing are 11 that this inquiry is to proceed, the inquiry team will 12 not proportionate to the result that can be achieved, 12 do what they can to make that happen, so if you permit 13 what is the result that can be achieved? That is a set 13 this investigation to proceed, it will do so. There 14 of findings and recommendations which may omit some of 14 will be no obstacle. 15 the detail but will be intelligible and will inform the 15 You will also be aware that Mr Altman QC has very 16 recommendations that the inquiry will make in its final 16 properly advised, and his team who drafted the note, at 17 report. 17 paragraph 3, that the views of CTI have no special 18 So when one looks at those nine reasons, I submit 18 status and the chair will accept or reject them as she 19 they are simply not made out and they don't come close 19 sees fit, and CTI has further stated, at paragraph 63, 20 to advancing a compelling argument in support of not 20 that core participants may be able to identify 21 being able to proceed with this investigation. 21 a proportionate, effective and lawful alternative that 22 Counsel to the investigation's submissions state at 22 is capable of being implemented within the constraints 23 paragraphs 59 and 60 that the Henriques Report is 23 of the 1992 and 2005 Acts, and, chair, we say simply we 24 critical of various decisions, actions and omissions and 24 have, we have done exactly that. We submit that the 25 these investigations, it may be felt, have gone some way 25 problem of jigsaw identification and the 1992 Act is

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1 adequately resolved in this investigation and any other 1 processes in this case and in exposing them to public 2 investigation in which it may arise in a public inquiry 2 scrutiny." 3 through the adoption of the closed hearing procedure as 3 Chair, nothing has changed, and I say that this 4 set out in section 19 of the 2005 Act. 4 hearing should certainly proceed. 5 The content of the closed detail, that simply 5 In relation to judicial review, I need to say 6 doesn't prevent that procedure from operating. So I ask 6 something about that. Chair, we have set out 7 you to reject submissions made on behalf of the Janner 7 a compelling case on the facts and on legal grounds for 8 estate that it would do so, if that is what is being 8 this investigation to continue through adopting the 9 said. 9 closed hearing procedures which are readily available. 10 I would remind you of the words of the chair of 10 Our clients' instructions, and we have foreshadowed this 11 the Independent Inquiry into Child Sexual Abuse when 11 in our note, are that they would wish to challenge any 12 setting up the investigation as long ago as 12 decision to discontinue investigation by way of a JR in 13 29 April 2015: 13 the administrative court. Should such proceedings be 14 "The depth of public concern surrounding the Janner 14 issued, this would necessarily involve you, chair, 15 case exemplifies the need for a thorough and wholly 15 having to defend a decision not to investigate 16 independent investigation into the adequacy of an 16 child abuse, and no doubt the institutional and 17 institutional response to child sexual abuse, 17 complainant core participants in this investigation 18 particularly where persons in positions of influence are 18 would be interested parties in that claim. 19 alleged to have abused children in institutional 19 We would wish to expedite any application in the 20 settings and have, for one reason or another, escaped 20 administrative court and will ask for a rolled-up 21 prosecution over a number of years. It would of course 21 permission substantive hearing all in one hearing within 22 be quite wrong to prejudge the outcome of our enquiries 22 a timeframe that would enable the October hearing to 23 in any way, but there is, in my view, a clear public 23 proceed in the event that the administrative court were 24 interest in conducting an exhaustive and critical 24 to give us the relief that we would be seeking if this 25 examination of the institutional decision-making 25 process were to be discontinued.

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1 So, to that end, I make some requests. I ask that 1 first, let it be said that Lord Janner, described this 2 you reach and communicate a final decision on whether 2 morning as a devoted public servant, died while awaiting 3 the investigation is to continue as soon as possible, to 3 trial at the Central Criminal Court on 22 charges of 4 give us time. Secondly, and importantly, that 4 sexual offences against children. 5 the October hearing dates are kept open until the 5 On several previous occasions, he should have been 6 deadline date for bringing any claim in the 6 prosecuted. In the view of Sir Richard Henriques, 7 administrative court has expired. 7 prosecution would have led to a realistic prospect of 8 Chair, of course, that having been said, it is our 8 conviction. 9 hope that you will agree with the points that we have 9 We know from a recently circulated statement of 10 made and permit this important investigation and hearing 10 a retired temporary detective superintendent, Matt or 11 to continue in October. 11 Nigel Hewson, that the allegations against 12 Chair, unless I can assist further, those are my 12 Lord Janner -- this is at paragraph 140 of Mr Hewson's 13 submissions. 13 statement -- were of rape, buggery, indecent assault and 14 THE CHAIR: Thank you, Mr Jacobs. Mr Stanage? 14 gross indecency, dating from around 1955 15 Submissions by MR STANAGE 15 until August 1988. 16 MR STANAGE: Chair and members of the panel, I, as you know, 16 The first question that our clients ask is: how did 17 represent 14 complainants who have instructed 17 such a prominent person, known to have easy access to 18 Slater & Gordon Solicitors. You also know, I hope, that 18 children in care, repeatedly, and for decades, escape 19 I adopt the submissions, both written and oral, just 19 prosecution and, therefore, accountability? 20 made by my learned friend Mr Jacobs. 20 Another factor that cannot be ignored and that leads 21 I therefore say only a little more. Firstly, none 21 me to my second question is this: there were apparent 22 of our 14 complainant clients pursues any claim for 22 failures in institutional responses for decades. Those 23 damages in any other forum. What each of them do wish 23 apparent failures deprived our clients and all other 24 to pursue is answers to two particular questions that 24 complainants of three things: dignity, justice and 25 I will formulate for your assistance in a moment. But, 25 redress. Those three things are now available only from

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1 this inquiry. 1 has been identified as having warranted the prosecution 2 The second question, therefore, is: if not now, 2 of Lord Janner. 3 when? We say that continuance of this inquiry is 3 At long last, there was a decision to prosecute 4 necessary for many of the reasons you have already been 4 Lord Janner, and it was for one reason, that the 5 given by other counsel earlier today. I therefore touch 5 evidential test was satisfied. The inquiry was not 6 upon them only in passing. The IOPC report, as counsel 6 wrong to find a reason for this strand to be 7 to the inquiry has rightly emphasised, was narrow in 7 investigated, and the good reason for your investigation 8 scope and far narrower in range of institutions 8 still pertains today. 9 considered than is your inquiry. As to narrowness and 9 As to anonymity, chair, it is baffling to hear how 10 proportionality, we also say that what is contemplated, 10 anonymity, an absolute statutory right for each of our 11 or what was contemplated, by counsel to the inquiry, in 11 clients, is now being presented in what I do say is 12 the event that the matter proceeds to a hearing, is 12 a problematising fashion and as an obstacle rather than 13 a very modest 11- or 12-and-a-half-day hearing into the 13 a matter to be accommodated by reasonable adjustments. 14 various apparent failures of these various institutions. 14 There is nothing at all remarkable, chair, in 15 Prominence has been covered. Previous inquiries 15 a complainant of child sexual abuse wishing, in 16 that were narrower or had a different focus have also 16 adulthood, to retain his or her anonymity. 17 been discussed earlier this morning, and I don't 17 As to a useful report, my learned friends have 18 belabour those points. 18 already said that an expert tribunal such as this will 19 I do say, as to credibility, in response to the 19 easily be able to produce a report that is useful after 20 submissions made by the Janner family, that the analysis 20 a process that is participative, fair and lawful. 21 of credibility that they have advanced today is not 21 What of the detriment of discontinuance? It would 22 objective. I agree with Mr Altman QC that it is, 22 indeed cause unnecessary, disproportionate and severe 23 instead, selective, and I submit to you, and to your 23 harm to complainants. Those complainants believe that 24 colleagues, that the Janner family submissions choose to 24 the message they should take from their experience is 25 ignore all of the evidence of child sexual abuse that 25 that victims count for nothing, and for even less if the

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1 perpetrator and his family are prominent. 1 On the contrary, I would respectfully suggest that 2 Now, I mention perpetrator and family because this 2 you and the inquiry have a choice between two paths. It 3 has not been said, but I think it ought to be: this 3 might be a choice that is difficult, but, in the end, it 4 inquiry, on a nearly daily basis at times, has been 4 is simple: one path is the fair path, down which you 5 subjected to a high-pressure campaign, and sometimes to 5 could proceed under the law that provides for anonymity, 6 vituperation and abuse, if not directly by letter and 6 and, indeed, requires anonymity, and you could proceed 7 telephone, certainly on social media, and you have been 7 down the path of fairness under the law without fear or 8 called, as an inquiry, all the names of the day that can 8 favour to get to, what? The truth. That's all that we 9 be printed within the law -- "kangaroo court" was one 9 are asking for: the continuation of a quest for the 10 insult that immediately springs to mind, but you know 10 truth and for the answers to the questions that 11 that there were others. 11 I outlined at the start of my submissions. 12 So that is why I say that our clients perceive, no 12 The other path, I respectfully suggest, is not the 13 doubt reasonably, that there has been a concerted and 13 path of fairness, but it's the ignoble path, because, in 14 persistent campaign to close down this investigation. 14 effect, although, of course, not by your or your 15 My learned friend Mr Friedman QC has been candid, as is 15 colleagues' intention, the abandonment of this 16 his wont, in saying that the Janner family have never 16 investigation would be ignoble for three reasons. 17 accepted the existence of this inquiry, and that can 17 It would conceal wrongs that were done to 18 only be because they have never taken a realistic view 18 complainants. The concealment of wrongs done is the 19 of the evidence that was said to be capable of 19 enemy of justice. 20 justifying a conviction. 20 It would conceal the reasons for apparent 21 Chair, on the issue of the choice before you, it's 21 institutional failures. 22 been described in various terms this morning as a choice 22 Thirdly, it would deny even the chance of answers to 23 between a bad option and a least bad option. I, for my 23 our clients, who deserve answers and have waited for 24 own part, on behalf of our clients, don't believe that 24 them for so long. 25 such terms are useful to you. 25 We were criticised earlier, all complainant

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1 representatives, for failure to address the judicial 1 are not, we say that if anonymity is an entitlement, if 2 review application of Mrs Geraldine Finucane, and we 2 anonymity is unexceptional, and if anonymity is fair and 3 were criticised for failing to refer to the judgment of 3 lawful, then what you should choose is to accommodate 4 the Supreme Court in that matter on 27 February of 2019. 4 that assertion of anonymity and not penalise it, 5 But we are only too happy to make reference to it in 5 because, if you do penalise it, so much will be lost, so 6 support of the submission that I have just made in 6 much harm will be done and so many learning 7 closing. 7 opportunities will be missed that such a decision and 8 In that case, the Supreme Court referred, at its 8 such a conclusion could only be disproportionate, unfair 9 paragraph 59, to the case of Nadarajah v 9 and unlawful. Thank you. 10 Secretary of State for the Home Department [2005] 10 THE CHAIR: Thank you, Mr Stanage. Finally, Mr Chapman? 11 EWCA Civ 1363. In seeking to define in that guideline 11 Submissions by MR CHAPMAN 12 case what legitimate expectation was and what fairness 12 MR CHAPMAN: Thank you, chair, thank you, panel. We act for 13 is, in my submission, the Supreme Court, in approving 13 13 complainants in this strand of the inquiry, four of 14 Nadarajah, explained that it comes down to this on the 14 whom have waived their right to anonymity, and Mr Gater 15 facts of this case that you're seized of: is there good 15 who is present today. 16 reason to depart from the plan to proceed? What are the 16 We gratefully adopt, as you will have read from my 17 objective reasons now to leave the path of enquiry and 17 written submissions, submissions advanced in writing and 18 to choose instead abandonment? 18 today by Mr Jacobs and, indeed, my learned friend 19 Well, although many reasons have been canvassed by 19 Mr Stanage, who just sat down. I will therefore be 20 the Janner family, and indeed by counsel to the inquiry, 20 relatively short. 21 the only reason given by my learned friend Mr Altman QC 21 I wish to address you on three topics. The first is 22 is anonymity. You were told unambiguously, but for the 22 the effect and operation of the 1992 Act, and to suggest 23 anonymity issue, we would be submitting, said counsel to 23 that there may be grounds for more optimism than counsel 24 the inquiry, that the inquiry should proceed. Despite 24 to the inquiry suggested in relation to the operation of 25 all of the alleged difficulties that, upon examination, 25 that Act in the context of this inquiry.

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1 Secondly, to emphasise the importance of 1 sufficient, regardless of the wider public interest. 2 the independence of this inquiry and the importance of 2 As you know, as far as criminal proceedings are 3 resisting any external pressures that might have been 3 concerned, the Act has been found to be compliant with 4 communicated to you. 4 the right to freedom of expression under article 10 of 5 And, three, a comment, really, about the anonymity 5 the European Convention of Human Rights. It is said 6 and fairness of proceedings. 6 that the Act has the legitimate purpose of encouraging 7 Turning to my first topic, which is grounds for 7 complainants to give evidence in criminal trials, and 8 optimism about the operation of the 1992 Act, no-one has 8 that is right. It does not fetter the conduct of 9 doubted in submissions that counsel to the inquiry's 9 the criminal trial, only the reporting of it. To the 10 analysis of the effect of the 1992 Act is strict, but 10 extent there might be prejudice to a defendant, the 11 I wish to suggest there are grounds for some optimism 11 trial judge has the power and discretion to remove the 12 because, as you know, panel, the act criminalises 12 prohibition against publicity. 13 publication of any material that is likely to identify 13 Of course, the final result of a criminal trial is 14 a complainant of sexual abuse. It does not matter how 14 simply binary: guilty or not guilty. There is to 15 much publicity there might have been before. On the 15 report, at least in jury trials, to worry about. 16 contrary, the more publicity there was before, the more 16 What has not been considered, I submit, on 17 likely a complaint is to be identified. Therefore, the 17 authority, as far as I have been able to discover, is 18 greater difficulty there is in proceeding with any open 18 whether the effect of the operation of the 1992 Act in 19 investigation involving that complainant. The identity 19 public inquiries remains article 10 compliant. By 20 might be an open secret. It does not matter. And there 20 definition, a public inquiry is concerned with matters 21 we have the heart of the conundrum, because the 21 of wider public importance, even than a criminal trial. 22 strictness of the Act is such that it might be said that 22 The apparent consequences for this investigation of 23 holding any inquiry into the relevant subject matter 23 the 1992 Act, untempered by article 10, would, we 24 was, in some cases, likely to lead to identification. 24 suggest, be absurd. It would mean that this 25 The mere airing of the topic in public would be 25 investigation could only proceed openly in terrorem of

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1 committing a criminal offence, no matter what the public 1 to protect the anonymity of complainants in this 2 interest might be; that the inquiry would not, 2 inquiry. But you should do so not out of fear of 3 in terrorem of committing a criminal offence, be able to 3 breaching the 1992 Act, but upon balancing the risk of 4 publish a full report, no matter what the public 4 identifying a complainant against the public interest in 5 interest might be. 5 pursuing the terms of reference of your inquiry. That, 6 Does the 1992 Act, in these circumstances, remain 6 in truth, I suggest, is how you have approached all 7 compliant with article 10? If, as was accepted in 7 other strands of this inquiry, because there is always 8 O'Riordan, the Act interferes with the article 10 right 8 a risk, even with ciphers and closed sessions, that 9 to freedom of expression, does the interference in this 9 a complainant will be identified. 10 case remain necessary in a democratic society? Can an 10 The difference in this case, we accept, is the risk 11 Act, whose intention was to forbid publicity by the 11 is perceived to be higher. Ultimately, when it comes to 12 media to safeguard criminal trials, be really upheld 12 your final report, it is right, and I think counsel to 13 where it is forbidden publicity by a public inquiry? We 13 the inquiry has acknowledged that this expedient is 14 suggest the Act cannot be as strict as that. 14 available. Parliament can, if it wishes, publish the 15 We agree with the Labour Party in their written 15 report. As you know, chair, you have to present your 16 submissions that this could not have been the intention 16 report to the minister anyway. 17 of parliament when passing the Act. It was an Act that 17 If, having written your report and made all the 18 was passed long before the internet was ubiquitous, an 18 adjustments that you feel you reasonably can to protect 19 Act that was focused solely on the public interest 19 the identity, you still were in fear that you might be 20 arising out of criminal trials, not public inquiries, an 20 in breach of the 1992 Act, there is that recourse to ask 21 Act that because it created such a strict offence did 21 the minister to publish it through parliament. That is 22 not allow for considerations of the wider public 22 what the Parliamentary Papers Act 1840 was brought into 23 interest such as those that arise here. 23 force for. It arose, in fact, out of an inquiry, an 24 That, of course, is not to say that you should not 24 investigation, commissioned by parliament into the 25 take reasonable steps, with the powers available to you, 25 Prison Service. Somebody sued for criminal libel as

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1 a result and it was decided that the Parliamentary 1 Lord Campbell-Savours' further complaint that IICSA 2 Papers Act was required in the public interest. 2 is not listening to parliament. Have we not seen this 3 Chair, I turn to the question of independence. 3 sort of behaviour in other strands of the inquiry, most 4 Of course, yours is an independent inquiry. The 4 notably the investigation into Peter Ball? 5 only people who should seek to influence you are those 5 As the Janner family agree, the chief remaining 6 involved in the inquiry. The Janner family have core 6 question is whether Greville Janner received 7 participant status. They can, and do, make their 7 preferential treatment because of who he was. That is 8 arguments here. They have a formidable legal team. 8 not an outlandish question, and we know from other 9 How is it, therefore, that members of the House of 9 investigations, such as that into Peter Ball, how this 10 Lords should use their privileged position to advance 10 might have happened in subtle, and sometimes not so 11 the cause of their late friend? Speaker after speaker 11 subtle, ways. Why, if the Janner family are sincere in 12 has risen in the House of Lords to defend the reputation 12 their denials of preferential treatment, is the campaign 13 of Lord Janner. Lord Campbell-Savours said in an 13 in his name carried on by friends in the House of Lords? 14 opening speech: 14 None of the complainants here have personal 15 "We set out the family's complaint about this 15 representatives in the Lords. It is an abuse of 16 investigation happening at all." 16 the privilege of the House of Lords to seek to influence 17 Lord Finkelstein stood up to say that he knew 17 you in that way. We trust, therefore, that you will 18 Lord Janner: 18 continue not to listen to parliament or any other 19 "I know and love his family. I hope that the 19 improper external influence and maintain a particularly 20 inquiry will prove able and willing to listen to 20 close eye on attempted breaches of your restriction 21 legitimate concerns politely put." 21 order. 22 Lord Campbell-Savours closed the debate by saying: 22 Finally, I turn to the question of what I call 23 "Why does IICSA insist on maintaining the Janner 23 asymmetrical anonymity. By that, I mean complainants 24 strand when all the evidence points to the need to scrap 24 are anonymous unless they waive their right; 25 it?" 25 Greville Janner is not. That is a repeated refrain of

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1 unfairness in the law by the Janner family and their 1 required. 2 supporters. Daniel Janner heads a campaign group for 2 THE CHAIR: Thank you, Mr Chapman. Mr Altman? 3 reform, Falsely Accused Individuals for Reform. 3 Submissions in reply by MR ALTMAN 4 Lord Campbell-Savours is listed as one of their 4 MR ALTMAN: Chair, first of all, by way of reply, and it is 5 associates. They say that anonymity for complainants 5 to Mr Chapman's points on the interplay between 6 does not strike a fair balance with the lack of 6 article 10 and the 1992 Act that we feel we must make 7 anonymity for those accused. It is a perfectly proper 7 a response. 8 debate, but it is obviously outside the scope of this 8 So far as we understand it, the only challenge to 9 inquiry. It is a debate for another day. 9 our interpretation of the Act of 1992 has come from 10 But we would point out that, even FAIR, the campaign 10 Mr Chapman in the submissions which you have just heard. 11 group, are campaigning only for a limited change in the 11 He raises the question of whether the Act should be, in 12 law to grant anonymity to the attitude up to the point 12 effect, read down in light of article 10 of the European 13 of charge, and, as you know, in respect of 13 Convention. It is an interesting legal point and it may 14 Greville Janner, a High Court judge concluded he should 14 help those attending if I seek to set out some of 15 have been charged long ago, and of course he was charged 15 the principles involved, but I'm not going to take very 16 before he died. 16 much time over it. 17 So even on their own campaign, Greville Janner would 17 Under the Human Rights Act 1998, the courts have to 18 have lost his anonymity and it ill behoves the Janner 18 interpret primary legislation in a way that's compatible 19 family to complain of unfairness that they, themselves, 19 with the provisions of the European Convention so far as 20 are not campaigning to change. 20 it is possible to do so. Those provisions include 21 Chair and panel, those are my observations and 21 article 10, the right to freedom of expression, which 22 submissions. As you know, I adopt those of those who 22 includes the rights of the media to report on events of 23 spoke before me for the complainants. We, of course, 23 public importance. 24 recommend option 1, which is to proceed with the 24 The suggestion from Mr Chapman, as we understand it, 25 investigation as normal with closed sessions as 25 is that the courts may adopt a less strict

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1 interpretation of the 1992 Act than the one we have 1 proceed. 2 suggested, as they may accept that the right of 2 Second, even if the Act is found to be incompatible 3 the media to report these proceedings is such as to 3 with article 10, it is not self-evident that it would be 4 require that the Act is read down; in other words, given 4 read down by the court. The language used by parliament 5 a more liberal interpretation. We understand the point 5 in the 1992 Act is clear: the prospective, 6 that is being made, but it doesn't change our analysis, 6 forward-looking nature of the anonymity provisions is 7 for three reasons. 7 a fundamental feature of the Act. The outcome that it 8 First, this is an untested field. Mr Chapman has 8 gives rise to in these proceedings is consistent with 9 found no decided cases in support of his argument, and 9 the purposes of that Act, ensuring that complainants 10 we are unaware of any ourselves. 10 have lifelong anonymity in order to encourage them to 11 At present, the authorities on the 1992 Act suggest 11 come forward to report abuse. 12 it will be interpreted strictly, and we have provided 12 Finally, the interpretation preferred by Mr Chapman 13 those in our written submissions and I don't repeat them 13 may have wide consequences on the protections provided 14 now. But the Act was found, in particular in 14 to complainants of sexual abuse, consequences that may 15 O'Riordan v the DPP, to be compatible with article 10. 15 go well beyond this inquiry. In these circumstances, 16 Unlike Mr Chapman, we do not see that decision as 16 a court may be reluctant to give a strained, liberal 17 necessarily being limited to the criminal field. 17 interpretation to the 1992 Act. 18 It would be a bold step for this inquiry to proceed 18 It is at least as likely it would issue 19 as if the 1992 Act did not apply in the usual way, 19 a declaration of incompatibility. That is a formal 20 anticipating that the courts would uphold Mr Chapman's 20 statement from the court that the 1992 Act is not 21 argument. But if that step is taken, and then were 21 compatible with the European Convention. It would then 22 proved to be wrong in law, then many participating in 22 be for parliament to decide whether to change the law. 23 this inquiry, including members of the inquiry staff, 23 But, until it did so, the 1992 Act would remain in force 24 are likely to commit criminal acts, and we submit that 24 binding on this inquiry and all those participating in 25 this would not be an appropriate way for this inquiry to 25 it.

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1 Third, and finally, you may feel every bit as 1 Yesterday, Slater & Gordon Solicitors were in touch 2 important as the legal argument. Mr Chapman's 2 with the inquiry to say that they were contacted by 3 submission is an attempt, with respect to him, to 3 a prominent journalist in relation to press reports 4 circumvent the anonymity decision of the complainant in 4 about Lord Steel and the inquiry's Westminster 5 question. It treats it as an obstacle to be overcome 5 investigation. In the course of the conversation, the 6 rather than a decision to be respected by the inquiry. 6 journalist mentioned today's preliminary hearing and 7 Proceeding in this way would be contrary to that 7 said -- and this is a quotation -- "Daniel Janner is 8 complainant's wishes. In our submission, it is highly 8 going around saying to everyone in the media that the 9 likely to lead to their being identified by the public. 9 inquiry is going to be scrapped". Now, Slater & Gordon 10 It is also highly likely to lead to sensitive details of 10 didn't comment in response. They say that if what the 11 their personal history being discussed in the press as 11 journalist is saying is correct, Mr Janner must have 12 well as on social media, and it would plainly not 12 breached the confidentiality undertaking in disclosing 13 respect their decision on anonymity. As we have said 13 information contained in our submissions to you dated 14 before, that is the opposite of our position. The 14 17 January. 15 complainant's decision, one that they are entitled 15 Additionally, a member of the inquiry's 16 entirely to make and one that many other complainants 16 communications team was contacted by a senior 17 have made, should be respected. 17 journalist, also yesterday. The journalist said that an 18 Chair, those are all the submissions we make in open 18 unidentified person -- "I'm not going to tell you who, 19 session. 19 but you can guess", is what was said -- had spoken to 20 Housekeeping 20 them, saying the investigation was going to be binned 21 MR ALTMAN: Before we move to the closed part of 21 tomorrow -- in other words, today. 22 the hearing, as to which I will make a few more 22 As everybody here knows, certainly those who 23 submissions, can I raise as part of the final points of 23 participate, the undertaking provides that the contents 24 agenda, as it were, under the "Any other business" part, 24 of confidential documents provided by the inquiry must 25 an issue in relation to Daniel Janner. 25 be kept confidential unless and until referred to in the

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1 inquiry's proceedings. The giver of the undertaking 1 he said this is consistent with his obligations under 2 confirms that they understand that they may not disclose 2 the confidentiality undertaking and, if so, how; and, 3 documentation provided to them by the inquiry with 3 four, the names of all journalists he had spoken to 4 anyone other than inquiry staff or those who have given 4 about the inquiry since 17 January and the dates on 5 the undertaking themselves. 5 which he had spoken to them. 6 Now, counsel to the inquiry's submissions were 6 Daniel Janner emailed his response yesterday at 7 circulated to all core participants, including 7 25 minutes past 4, and this is what he said: 8 Daniel Janner, with the following express warning, and 8 "I had no intention of coming tomorrow, in any 9 that warning was: 9 event, as I didn't want to be a distraction or become 10 "The information contained within this email and 10 part of the story. As I think you have gathered, I am 11 documentation attached to it are provided expressly 11 thoroughly fed up with the whole process and want as 12 subject to the confidentiality undertaking." 12 little to do with it as possible. I have not spoken to 13 Because the inquiry takes any breach of that 13 any journalist about the inquiry and so will reply to 14 undertaking very seriously, and in light of the concerns 14 your request. To have done so would be counter to the 15 raised, you asked Mr Smith, the solicitor to the 15 aim I wish to achieve, but I do not have the template 16 inquiry, to request that Daniel Janner provide a witness 16 for a section 9 statement." 17 statement with a signed statement of truth covering the 17 In other words, at that point, he was indicating he 18 following matters: first, the identity of all persons 18 was prepared to make a statement and was asking Mr Smith 19 with whom he had discussed the documents disclosed to 19 to help him with a template in which he could set out 20 him by the inquiry on 17 January of this year; second, 20 the content of a witness statement. 21 whether he had indicated to any journalist since that 21 Mr Smith had asked him to return that statement to 22 date that the inquiry is going to be scrapped or that 22 the inquiry by 9.00 am today. This morning, at 7.53 am, 23 the investigation been binned, and, if so, to whom he 23 an email was received from him in which he said: 24 said it, when and precisely what words were used; third, 24 "I have now taken legal advice in respect of your 25 "If you have said such things to a journalist", whether 25 request yesterday afternoon for a sworn statement under

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1 rule 9 this morning. We do not consider that rule 9 1 So, chair, that is a conclusion to the open session. 2 authorises or empowers the tribunal to impose compulsive 2 In a few moments, I am going to invite you and the panel 3 orders on persons who are not witnesses or potential 3 to rise for a very short period of time. When we 4 witnesses. Furthermore, the terms of your request are 4 reconvene, we will commence the closed session of 5 not procedurally reasonable. For these reasons, I have 5 the hearing, which I am going to ask Mr O'Connor to 6 been advised and believe that I should not comply with 6 take. 7 your request." 7 As you are aware, the purpose of the closed hearing 8 As a matter of history, Mr Janner has provided, in 8 is to allow us and also core participants to make 9 fact, this inquiry with a witness statement with 9 factually detailed submissions to you about the future 10 a declaration of truth in the past. That was in July of 10 of the investigation that can't be made in public. The 11 last year, when he was asked to give a statement in 11 reasons they can't be made in public session is that 12 connection with information he tweeted which was brought 12 they would breach the terms of the Act, the 1992 Act, 13 to the inquiry's attention by other core participants. 13 and also your restriction order as to which you have 14 He produced a witness statement on 30 July in which he 14 already heard detailed submissions. 15 confirmed he'd made the tweet in question, explained the 15 In other words, it's the same difficulty that has 16 context, there was heightened emotion around the trial 16 led us to submit that a significant portion of 17 of Carl Beech and the ongoing trauma to his family 17 the substantive hearings, if that is what you choose 18 caused by the investigation and apologised if the tweet 18 should happen, must also be heard in closed session. 19 was regarded as a breach. That statement was signed and 19 For today's purposes, all core participants agree 20 it contained a statement of truth. 20 that a closed hearing is appropriate. There is also 21 So that's the history of the matter and, chair, you 21 agreement that accredited representatives of the media 22 may wish to decide what's going to have to be done about 22 who have made themselves known to the inquiry should be 23 it. I don't seek, obviously, a determination from you 23 entitled to attend the hearing. I should add 24 right now about it, but that is regarded as a serious 24 immediately that there will be heavy restrictions on any 25 breach and something you are going to have to consider. 25 reporting of the closed hearing. I will turn to those

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1 in a moment. 1 described? 2 The practical arrangements, so that everybody can 2 THE CHAIR: Yes, I will do that, Mr Altman. 3 hear me, for the closed hearing will be this: the 3 MR ALTMAN: Thank you. Turning to the question of 4 hearing will take place in this room. There will be no 4 reporting, it is obviously of great importance that 5 live streaming to the annex, as there is at the moment. 5 no-one who is present at the closed hearing, including 6 Anyone who wishes to attend the hearing will therefore 6 the media, publishes anything about the hearing that may 7 need to come into this room. Core participants and 7 breach the 1992 Act or your restriction order, the one 8 their legal representatives, inquiry staff and 8 made in September last year. We are sure that it will 9 accredited representatives of the media who have made 9 be apparent to everyone present at the hearing that the 10 themselves known to the inquiry will be entitled to 10 question of what can and cannot be reported publicly 11 attend. 11 pursuant to the Act and your restriction order is not 12 Members of the public will not be entitled to 12 straightforward. I remind anyone planning to make any 13 attend, and I would ask members of the public who are 13 report or public statement about what takes place at the 14 here now, in a moment, please, to leave during the short 14 closed hearing that a breach of the Act, and indeed of 15 break. 15 your restriction order, is a criminal offence. Anyone 16 For the avoidance of any doubt, today's hearing will 16 intending to make such a report or public statement 17 conclude at the end of the closed session. There will 17 would be well advised to take legal advice. Finally in 18 be no further open hearing. 18 this regard, I would add that the inquiry will publish 19 Chair, holding a hearing along these lines, in 19 on its website, one hopes later today, a short open 20 particular a hearing from which the public is excluded, 20 description of the contents of the closed hearing. The 21 requires you to make an order under section 19 of 21 intention is to provide a public explanation of what's 22 the Inquiries Act 2005. Can I ask you now to indicate 22 taken place, but it may also be a useful resource for 23 whether you wish to make a restriction order under 23 those wishing to make their own public reports. 24 section 19 to the effect that the inquiry should proceed 24 So, chair, unless there are any other matters, 25 to hold a closed hearing of the type I have just 25 I will invite you to rise now briefly, and I mean

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1 briefly, and when you return, we will commence the 1 2 closed session. 2 Submissions by MR STANAGE ...... 97 3 THE CHAIR: Yes, we will take 10 minutes now. 3 4 (2.44 pm) 4 Submissions by MR CHAPMAN ...... 104 5 (A short break) 5 6 (2.54 pm) 6 Submissions in reply by MR ALTMAN ...... 112 7 (The hearing went into closed session) 7 8 (3.35 pm) 8 Housekeeping ...... 115 9 (The hearing concluded) 9 10 10 11 11 12 I N D E X 12 13 13 14 Welcome and opening remarks by THE ...... 1 14 15 CHAIR 15 16 16 17 Submissions by MR ALTMAN ...... 3 17 18 18 19 Submissions by MS MEREDITH ...... 44 19 20 20 21 Submissions by MS GREY ...... 46 21 22 22 23 Submissions by MR FRIEDMAN ...... 46 23 24 24 25 Submissions by MR JACOBS ...... 70 25

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A 32:11 79:18 29:21 31:18 Additionally advantages abandoned acceptance 35:10 43:19 116:15 18:11 23:25 47:10 59:11 50:12 56:4,5 address 6:16 adverse 29:7 abandonment accepted 19:9 61:20 62:1,2,6 28:4,25 38:13 advice 10:3 67:1 102:15 103:18 23:13 27:18,23 62:10,13 63:8 103:1 104:21 84:25 118:24 ability 18:23 41:4 78:25 64:15 65:15 addressed 14:18 122:17 75:23 88:7 82:2 101:17 71:12 72:19 26:16 35:2 advised 72:21 able 7:13 11:23 107:7 77:19 78:9,9 90:17 94:16 119:6 13:10 47:8 accepts 62:15 80:18 83:15,20 addresses 15:5 122:17 65:17 76:25 access 17:3 84:7 85:3 86:7 adduced 64:13 advisers 31:24 91:21 93:21 87:21 98:17 86:8 87:24 adequacy 95:16 advocate 26:11 94:20 100:19 accommodate 88:20 89:1 adequate 32:15 affect 21:24 106:17 107:3 104:3 94:25 95:4 64:16 Affinity 4:11 109:20 accommodated 104:12,22,25 adequately 8:22 33:7 52:6 absence 64:13 100:13 105:8,10,12,22 95:1 70:18,20 absent 68:21 account 18:7 106:3,6,18,23 adhere 34:10 afresh 54:25 absolute 100:10 21:3 23:19 107:6,8,11,14 81:7 African 16:25 absolutely 20:13 34:17 36:16 107:17,17,19 adjourned 4:25 aftermath 53:15 46:11 52:14,19 54:11 55:8 107:21 108:3 adjournment afternoon 87:10 67:14 108:20,22 86:23 118:25 absorbed 49:25 accountability 109:2 112:6,9 adjudicate 65:8 agencies 75:17 abstract 58:1 89:4 98:19 112:11,17 adjustments 2:9 85:19 absurd 106:24 accountable 113:1,4,11,14 54:17 100:13 agenda 1:22 abuse 1:13 5:17 65:16 113:19 114:2,5 108:18 115:24 6:1,11 8:7 14:3 accredited 114:7,9,17,20 administrative ago 95:12 16:23 23:6,10 120:21 121:9 114:23 120:12 96:13,20,23 111:15 24:14 29:10 accumulation 120:12 121:22 97:7 agonising 70:12 41:10,17 45:24 8:22 122:7,11,14 admitted 11:4 agree 11:20 60:8 71:20 accused 111:3,7 acted 63:12 68:7 adopt 14:12 16:17 20:7 72:22 75:17,24 achieve 23:22 72:11 25:1 73:21 22:25 25:9 76:10 92:12 41:25 118:15 acting 49:19 97:19 104:16 40:7 42:2 95:11,17 96:16 achieved 89:7 54:23 111:22 112:25 65:20 97:9 99:25 100:15 92:23 93:12,13 action 72:20 adopted 23:22 99:22 107:15 101:6 105:14 achieving 26:19 86:10 38:20 77:18 110:5 120:19 110:15 114:11 acknowledge actions 36:22 adopting 96:8 agreed 59:20 114:14 18:11 63:16 68:20 adoption 73:2 agreement abused 75:20 acknowledged 93:24 95:3 53:15 69:10 95:19 68:5 108:13 acts 46:25 94:23 adulthood 120:21 abuser 75:16 act 3:8 5:23 6:3 113:24 100:16 ahead 3:14 5:8 accept 10:6 20:3 6:5,9,10,13,20 adapt 1:20 advance 109:10 18:22 19:23 20:11 33:11 6:25 7:12,14 add 42:20 44:15 advanced 27:2 26:18 28:10,18 36:13 66:4 9:2,19 12:15 46:20 56:15 56:8 99:21 31:7,9 41:19 68:25 79:13 12:16,25 13:4 67:14 84:18 104:17 52:16,18 58:23 94:18 108:10 13:21 14:23 120:23 122:18 advancing 2:24 74:13 113:2 15:22 17:23 addition 13:23 93:20 aid 6:8 acceptable 32:2 19:20 20:8 89:9 advantage 26:12 aim 118:15

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air 72:20 alternative 20:4 71:3 100:9,10 applies 62:6 argument 20:20 airing 105:25 53:23 94:21 100:16 102:5,6 81:10 25:7 27:20 akin 22:19 Altman 3:12,14 103:22,23 apply 6:6,24 93:20 113:9,21 Alexander 64:8 3:15,16 33:11 104:1,2,2,4,14 35:15 55:3 115:2 Alexis 1:5 54:20 71:16 105:5 108:1 83:5 113:19 arguments 20:3 alive 75:6 82:6 92:8 110:23 111:5,7 applying 7:14 20:12 21:17 allay 88:14 94:10,15 99:22 111:12,18 14:14 83:22 24:18 27:5 allayed 88:10 103:21 112:2,3 114:6,10 115:4 appreciate 29:15 33:4,12 allaying 63:6 112:4 115:21 115:13 63:25 36:7 50:24 88:5 94:1 122:2,3 123:17 anonymous appreciating 84:20 109:8 allegation 61:25 124:6 110:24 70:2 arisen 1:17 5:13 62:2,4 ambitious 94:7 answer 12:10 approach 12:3 7:22 30:14 allegations 1:12 amended 5:23 61:6 65:14,18 17:8 29:12,14 arises 61:25 6:12 8:8,12,18 6:14 82:5 83:14 29:18 37:16 arising 2:11 8:20,22 9:13 Amendment 3:7 answers 7:3 38:20 39:1 71:2 79:6,9 10:23 14:3 5:23 31:18 97:24 102:10 40:18 58:10 107:20 20:22 23:5,15 50:12 61:20 102:22,23 approached arose 79:7 23:15 24:14 amid 72:8 Anthony 64:7 60:16 108:6 108:23 25:3 36:2 amount 21:14 73:10 approaches 9:22 arrangements 41:11,12 45:4 22:24 45:3 anticipate 43:14 38:9,10 121:2 47:13 48:1,8 57:20 87:7 anticipated appropriate array 64:21,23 48:17 49:6,20 amounts 81:20 45:15 72:18 29:8 40:24 arrived 66:22 50:2 57:17 ample 73:8 anticipating 76:12 91:5 article 7:3 20:19 58:8,21,21 Ampleforth 113:20 113:25 120:20 20:21 21:19 59:4,9 60:13 73:20 anticipation appropriately 22:1,16,22 60:16 61:10 analysed 62:25 9:21 2:19 8:18 23:12 24:24 67:16 68:14,23 analysis 13:9 anyway 108:16 22:14 56:24,25 57:1 69:14 70:22 14:20 15:10,23 apologised approving 79:23 106:4,19 71:19 72:16 18:6,15 24:2 119:18 103:13 106:23 107:7,8 98:11 61:19 68:11 apparent 98:21 April 25:20 112:6,12,21 alleged 8:7 99:20 105:10 98:23 99:14 51:18 54:15 113:15 114:3 95:19 103:25 113:6 102:20 106:22 77:23 78:2,21 articles 61:17 allegedly 8:7 anathema 17:8 122:9 81:22 93:7 84:8,17,18 allocate 28:13 and/or 55:12 Appeal 16:24 95:13 Aside 85:5 allow 5:1 7:19 62:2,22 63:9 51:11 arbiter 80:4 asked 27:12 15:15 18:1,14 angry 75:16 appear 45:13 area 77:20 60:17 71:8 24:1 28:9,13 annex 121:5 70:17 areas 15:20 117:15 118:21 28:17 31:20 anonymised appearing 2:17 Arena 64:6 119:11 33:22 34:20 73:19 appears 55:9 arguable 50:21 asking 74:19 51:6 107:22 anonymity 5:19 applicable 56:22 arguably 8:13 102:9 118:18 120:8 6:13,14,21 7:7 application argue 15:11,13 asks 47:2 allowed 30:8 8:3 9:9 13:11 48:21 52:5 15:18 20:16,24 aspects 6:25 65:9 80:3 16:22 17:6,13 83:3 96:19 28:19 30:17 62:21 allowing 87:20 18:25 26:14,16 103:2 39:23 41:18 assault 98:13 allows 34:5 30:14 31:11,15 applied 78:8 argued 19:5 assert 5:19 9:8 alteration 80:6 32:14,21 34:15 91:18 22:4 27:16 80:23

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