Protocol on Restriction Orders

Protocol on Restriction Orders, Redaction, Anonymity and
Special Measures

1. The Inquiry aims to conduct its work as fairly, transparently and openly as possible. However, it recognises that there may be instances where certain information ought to be excluded from disclosure to Core Participants or to the wider public in order to protect against particular risks, such as harm and damage to the public interest.
2. This Protocol sets out the Inquiry’s approach to:
   
   1. Restriction Orders;
   2. the redaction of information from a document before it is disclosed or published by the Inquiry; and
   3. applications for anonymity and special measures.
3. This Protocol has been drafted to ensure that everyone who is involved in the Inquiry understands the procedural approach and the steps which need to be taken if they wish to request that the Chair withhold any relevant information from disclosure to the public or to others participating in the Inquiry.
4. It should be read in conjunction with the Inquiry’s Protocol on Vulnerable Witnesses, which explains the steps the Inquiry can take to ensure those engaging with the Inquiry feel supported and able to give their best evidence, and is accessible here.
5. All potentially relevant material should be provided to the Inquiry in complete and unredacted form. With the potential exception of material that is subject to legal professional privilege, there is no justification for anyone to withhold any potentially relevant material from the Inquiry, or to apply any redactions to material provided to the Inquiry.
6. The Inquiry is aware that some people wishing to make applications under this Protocol will not have legal representation. The FAQs on the Inquiry website may provide a simplified explanation of the position. These can be accessed here. Although the Inquiry is unable to give legal advice, the Inquiry team will be happy to provide further guidance, as needed, and to assist those who do not have legal representation to complete an application.
7. The Chair is committed to ensuring that individuals are able to give their best evidence to the Inquiry. This Protocol will be interpreted in accordance with the objective of obtaining evidence necessary to fulfil the Terms of Reference.
8. This Protocol may not cover every eventuality or procedural issue that will arise. The Chair may need to depart from it in certain cases to uphold her statutory duties to act fairly and avoid unnecessary cost.

Legal Framework

9. The Inquiries Act 2005 (the Inquiries Act) and the Inquiry Rules 2006 (the Inquiry Rules) set out how the Inquiry should approach the handling and publication of any information it obtains.
10. Section 18 of the Inquiries Act states that the Chair must take reasonable steps to ensure the public are able to:
    
    1. attend or see and hear a simultaneous transmission of Inquiry proceedings; and
    2. obtain or view a record of the evidence and documents given, produced or provided to the Inquiry.
11. As a general rule, the Inquiry will disclose to Core Participants those witness statements and documents it considers relevant (and to which restrictions do not apply), prior to the Inquiry’s public hearings. Documents used in the Inquiry’s public hearings or otherwise referred to as evidence will also be published on the Inquiry’s website. Personal and sensitive information provided to the Inquiry will be appropriately handled. It will only be shared or made public as is necessary and proportionate for the Inquiry to fulfil its Terms of Reference.

Restriction Orders

12. Restrictions on public access to hearings or information shared by the Inquiry are permitted in certain circumstances under section 19 of the Inquiries Act. The Chair can restrict the disclosure or publication of information on the basis of statute or other principle of law, or where she considers it would be helpful to the Inquiry to fulfil its Terms of Reference or is necessary in the public interest. This is done by the Chair making a ‘Restriction Order’ in accordance with the procedure set out below.
13. In determining whether the restriction of information is in the public interest, the Chair will take into account the following, along with any other matters she considers relevant to her decision:
    
    1. the extent to which the restriction might inhibit the allaying of public concern;
    2. whether the restriction would avoid or reduce any risk of harm or damage;
    3. whether the material is subject to any conditions of confidentiality; and
    4. the extent to which not imposing a restriction would likely delay or interfere with the efficiency or effectiveness of the Inquiry or result in additional cost (whether to public funds, witnesses or others).
14. Harm or damage, as defined in the Inquiries Act, includes a risk of death or serious injury. The Chair will consider applications on the basis that serious injury includes psychological harm. In relation to 13 d. immediately above, the Chair will have regard to the ability of witnesses to give evidence effectively.
15. The Chair can, at any time during the course of the Inquiry, vary or revoke a Restriction Order.
16. Restriction Orders will continue to apply after the end of the Inquiry, unless the Chair explicitly states otherwise.

The Process for Applying for a Restriction Order

17. All applications for an Order under section 19 of the Inquiries Act (whether for information to be redacted, a grant of anonymity or special measures) should be made in writing. Applications for Restriction Orders can be made at any time during the course of the Inquiry.
18. A template application form, in Word format, has been published alongside this Protocol and can be accessed here. The Inquiry invites those who wish to make an application to download the form and return a completed copy to the Inquiry, for the attention of the Solicitor to the Inquiry. This can be done either by email to Contact@LampardInquiry.org.uk or by post – The Lampard Inquiry, PO Box 78136, London, SW1P 9WW.
19. If an Applicant wishes to submit an application in a different format, they are welcome to do so, provided it complies with this Protocol.
20. All applications should set out:
    
    1. the name of the Applicant and their contact details;
    2. contact details of their legal representative (if they have one);
    3. specific details of the restriction sought. Where this relates to information contained within a document, reference should be made to the page number and if possible the relevant paragraph(s);
    4. an explanation as to why the restriction is sought (see the factors which the Chair can take into account, at paragraphs 12-14 above);
    5. any other supporting information or material which they consider relevant for the Chair to make a decision; and
    6. a declaration of truth to confirm that the facts stated within the application are true.
21. Information set out in an application will usually be withheld from onward disclosure (that is, treated by the Inquiry as ‘potentially restricted evidence’ within the meaning of Rule 12(1) of the Inquiry Rules) until the application is determined.
22. The Chair will determine all applications and the Solicitor to the Inquiry will notify Applicants and / or their Recognised Legal Representative (RLR) of the outcome in writing, unless another method of communication has previously been agreed.
23. Generally, Restriction Order applications and decisions will not be circulated to Core Participants, or otherwise made public. Where necessary and proportionate, however, the Chair may direct that sufficient information be disclosed about a Restriction Order application or decision for Core Participants to understand the application made, or the decision reached in relation to such an application.
24. The Chair may vary the procedure set out above as appropriate. If a person applying for a Restriction Order wishes for the application to be determined by a different procedure, written representations to this effect should be included with the application.
25. Where a Restriction Order has been granted, an Applicant can ask the Chair to vary or revoke the Order at any time before the end of the Inquiry. They should do so in writing and explain why there is a need for the change. The Chair can also do this of her own volition, as is set out at paragraph 15 above.

Specific Types of Restriction Order

Redaction

26. Where the Inquiry intends to disclose or publish a document but part(s) of it should not be shared, redaction(s) can be made. This will be by way of a box being placed over the relevant text or part(s) of each document.
27. As will be further explained in a Protocol on Documents, to be published shortly, the Inquiry will review all documents that are provided to it before onward disclosure or publication. It is for the Inquiry to determine the relevance of any particular document and it is for the Chair to determine whether a redaction should be applied, whether or not that redaction has been requested by the person or organisation who provides the documents, known as the ‘Material Provider’.
28. The Inquiry expects anyone applying for restrictions to adopt a measured approach to seeking redactions. Reasons must be given for each proposed redaction and only when the case for redaction is properly made out will the Inquiry remove such information from the record, subject to the exceptions set out below.
29. The Inquiry anticipates that many of the documents it receives will contain personal information, such as contact details or information about a person’s health. Where necessary, this information will be redacted in accordance with, and under the authority of, a General Restriction Order without the need for any Restriction Order application by the Material Provider.
30. There may be circumstances where the Chair considers that it is necessary to disclose some personal information because it is relevant to the work of the Inquiry. Where that is the case, the Inquiry will inform the Material Provider and obtain their views.
31. Information may also be redacted where it is outside the Terms of Reference and therefore irrelevant to the Inquiry. This will occur without any Restriction Order being made.
32. If a Material Provider seeks redaction over a document or documents that contain(s) information other than that which is personal or irrelevant, a Restriction Order application will need to be made in accordance with the procedure at paragraphs 17-25 above.
33. The Inquiry will notify all Applicants of the outcome of their applications before disclosing information to third parties. Different redactions may also be applied to a document depending on whether it is be disclosed to a Core Participant or published more widely by the Inquiry.

Anonymity and Special Measures

34. Further to the above, and again under section 19 of the Inquiries Act, the Chair may grant anonymity to any person engaging with the Inquiry if she considers it would be helpful to the Inquiry to fulfil its Terms of Reference or is necessary in the public interest.
35. The Chair may also direct special measures to assist witnesses to give their best evidence and may protect witnesses’ identities. These include but are not limited to the following:
    
    1. restricting attendance at hearings at which evidence is to be given;
    2. enabling witnesses to enter and exit the building where hearings are taking place via a route which prevents them from being seen by members of the press and public;
    3. providing evidence via video-link;
    4. screening from persons other than the Chair, the Inquiry team and appropriate legal representatives;
    5. pixelation of any photographic or video footage to prevent the publication of the identities of individuals;
    6. reporting restrictions; and
    7. in respect of evidence being heard in public, delays in the live-streaming of the evidence and the publication of transcripts.

Further provision in respect of vulnerable witnesses can be found in the Protocol on Vulnerable Witnesses, linked above.




36. All applications for anonymity will need to be made by the person being requested or required to give evidence, or by their RLR, in accordance with the procedure at paragraphs 17-25 above.
37. The European Convention on Human Rights establishes the right to respect for a person’s private and family life and the Inquiry is conscious to ensure that people are not deterred from giving evidence who would otherwise wish to do so. In such circumstances, their name and any other personal or identifying information would not be disclosed to Core Participants or published more widely by the Inquiry.
38. Every person granted anonymity will be allocated a pseudonym or cipher by the Inquiry. This will be used in place of their name in all statements and evidence disclosed to Core Participants or published on the Inquiry website.
39. It is anticipated that there may be occasions where it is necessary for Core Participants, witnesses, experts or other individuals with whom the Inquiry is engaging, as well as members of the Inquiry team, to be made aware of the identity of those who have been granted anonymity. For example, when a witness (either in their written statement or oral evidence) criticises a Core Participant, the Inquiry may consider it necessary to disclose the identity of the witness to the criticised party, even when the witness has been granted anonymity. This is to ensure the criticised party is afforded a fair opportunity to respond to the criticism. Any disclosure would be made under the Inquiry’s terms of confidence. If the Inquiry intends to take this course of action, the witness in question will be given 14 days’ notice and the opportunity to make representations as to why it would be disproportionate or unfair to do so.

Breach of a Restriction Order

40. Everyone must obey a Restriction Order. This includes the media, the public, witnesses, Core Participants, legal representatives and all members of the Inquiry team.
41. Any breach can be referred to the High Court which, on determining the matter, may impose sanctions, including a prison term or fine.

Point of Contact

42. If an Applicant wishes to discuss how to make an application or has any queries about the Protocol, please contact the Inquiry. This can be done by phone on 020 7972 3500, by email at Contact@LampardInquiry.org.uk or by post – The Lampard Inquiry, PO Box 78136, London, SW1P 9WW. All written correspondence should be addressed to the Solicitor to the Inquiry.

Review

43. If this Protocol requires amendment during the course of the Inquiry, an updated version will be published on the Inquiry’s website at the earliest opportunity. Any amendments will be subject to the review and approval of the Chair.