Disclosure Protocol

Introduction

1. This Disclosure Protocol (“Protocol”) sets out the approach that will be taken by the Andrew Malkinson Inquiry (“the Inquiry”) to (i) the provision of material to the Inquiry, and (ii) the onward disclosure of material which the Inquiry has received to date in Phase 1, during the next stage of its work (“Phase 2”, as described below paragraph 4).
2. Material Providers (“MPs”) should note that during “Phase 1” of the Inquiry’s work (as defined below paragraph 3), the Inquiry’s approach to the receipt and disclosure of documents was governed by its Phase 1 Disclosure Protocol.¹ The Inquiry is now moving to Phase 2: the Inquiry will continue to undertake the tasks as set out in Phase 1 except that it will additionally undertake appropriate onward disclosure, (which is now governed by this Phase 2 Disclosure Protocol).

Definitions

3. In this Protocol:

“Disclosure” is the process of making available relevant material to persons from whom the Inquiry proposes to take witness statements. Such relevant material is disclosed subject to a strict undertaking to the Inquiry of
confidentiality by the recipient of the disclosure (and their recognised legal representative, if any), not to reveal the whole or any part of that material (or any information contained within it) to others.

“Document” means anything in which information of any description is recorded, whether in paper or in electronic form. It will include but is not limited to, contractual documents, governing/constitutional documents, guides/codes of conduct, design plans, technical drawings, blueprints, reports, reviews, committee/board minutes, meeting/attendance notes, manuscript notes, memoranda, letters (including fax), leaflets, circulars, emails (internal and external), legislation, policy documents/statements, notebooks, witness statements, photographs, video and audio recordings and physical evidence.

“Material Provider” or “MP” means any person, institution, or organisation who has been asked to provide documents to the Inquiry or who has provided documents voluntarily to the Inquiry. For the avoidance of doubt, it includes His Majesty’s Government and any Department of State or Minister of the Crown.

“Potentially relevant documents” means those which, having regard to the Inquiry’s Terms of Reference (“ToR”), it is likely that the Chair (if aware of their existence) would wish to be provided.

“Publication” is the process of making information available as part of any interim or final report (which will be published) to members of the public via the Inquiry website.

“Phase 1” refers to the first phase of the Inquiry’s work as set out in the Phase 1 Privacy Notice. During Phase 1 the Chair and Inquiry Team will conduct a provisional assessment of material disclosed to the Inquiry by MPs, in order to:
(a) Identify the issues (“Issues”) to be investigated to meet the ToR;
(b) Determine the number and scope of future Phases of its work in order to investigate the Issues and discharge the ToR;
(c) Determine the approach which the Inquiry will take during such future Phases of work; and
(d) Identify what further evidence may be required to assist it in investigating the Issues.

“Witness” refers to a person from whom the Chair intends to take/request a written statement, and, in Phase 2, the Inquiry may also hold evidence gathering meetings with selected witnesses.

4. The work of Phase 1 continues but the Inquiry has also initiated Phase 2. In Phase 2 additionally, (which is intended to commence after 19 February) the Chair and Inquiry team intend to:
   1. Continue to seek and receive disclosure from MPs;
   2. Approach selected witnesses for written witness statements;
   3. Instruct an independent expert/s to assist the Inquiry;
   4. Disclose relevant material to those witnesses and expert/s to enable their witness statements / report/s to . be completed;
   5. Consider whether it is necessary, and if so, to meet selected witnesses for the purposes of the evidence . gathering process; and
   6. Continue to determine the approach which the Inquiry should take during such future Phases of work.

Provision of Documents to the Inquiry

5. The Inquiry requests anyone who holds potentially relevant documents to supply those documents to the Inquiry. Any person who is in possession of documents directly relevant to the ToR of the Inquiry and who is not
   approached by the Inquiry should contact the Inquiry Secretariat so that the necessary arrangements can be made for receipt of those documents.
6. Wherever possible the Chair intends to rely on voluntary co-operation for production to the Inquiry of the documents she considers necessary to fulfil her ToR.
7. The Chair will normally make a request for voluntary production of documents by means of a letter from the Solicitor to the Inquiry to the person believed to have custody or control of them. The Chair expects that all parties to whom a request of this kind is addressed will co-operate with the Inquiry and will provide all potentially relevant material.
8. MPs, including legal representatives, should provide documents requested by the Chair, together with any other documents they consider to be potentially relevant to the Inquiry’s ToR, without delay and within the time limits specified by the Inquiry in any relevant request.
9. MPs are expected to undertake comprehensive, thorough, and rigorous searches for all potentially relevant documents they control in response to any request for documents. MPs should keep a detailed written record at the time of the search that will enable them to complete a Disclosure Statement (see paragraph 12 below). For the avoidance of doubt, a document is in an MP’s control if the MP has:
   1. physical possession of it; or
   2. a right to possession of it; or
   3. a right to inspect or take copies of it.
10. Persons who hold potentially relevant documents are reminded about the duty to preserve documents and evidence which appear to be relevant to the Inquiry’s ToR. Steps should be taken to ensure any such evidence and
    documentation is not destroyed, distorted, or otherwise altered.
11. Annex A sets out the standards MPs should follow in submitting evidence to the Inquiry.

Disclosure statement from MPs

12. The Inquiry will in due course request MPs to provide a signed disclosure statement if it deems the same to be necessary. The purpose of such a statement will be, inter alia: to confirm an MP’s search methodology, to provide clear assurance that the Inquiry’s request for disclosure has been met and to explain, so far as can be ascertained, what has become of any information which cannot be produced (including, where possible, identification of the last person known to have had access to documents that are no longer held).

Disclosure of documents during Phase 2

13. Phase 2 commenced on 19 February 2024.
14. During Phase 1, personal data was not shared beyond the Chair and the Inquiry Team except where necessary to make further requests for disclosure of potentially relevant material from that same MP (believed to be in
    possession or control of such materials).
15. In Phase 2, with regards to disclosure, the Inquiry will:
    1. Request written statements from witnesses which may involve disclosing relevant documents from their own/former organisation/MP;
    2. Request written statements from witnesses which may involve disclosing relevant documents shared from a different organisation/MP;
    3. Instruct independent expert/s which will involve disclosing relevant documents provided by MPs;
    4. Share emerging issues that have been identified by the Inquiry’s review of the material with Mr Malkinson;
    5. Share the written statements generated for the Inquiry from witnesses with instructed expert/s and potentially with other witnesses;
    6. Make (further) requests for disclosure of potentially relevant material from MPs (believed to be in possession or control of such materials), which may involve disclosing selected documents shared by a different organisation/MP;
    7. In due course, the Chair will wish to draw on documents provided, and material generated in Phase 1 and Phase 2 when producing her final report; and
    8. The Chair will, in due course, also wish refer to relevant documentation in order to explain her conclusions/recommendations by referencing and publishing the source documentation.

Personal data

16. This Protocol should be read alongside the Inquiry’s Privacy Notice. The Privacy Notice explains what personal data is processed by the Inquiry, for what purpose, and how it is processed. The Privacy Notice must be adhered to by all persons who access, use, process, or otherwise deal with personal information on the Inquiry’s behalf.

Redaction of information for onward disclosure

17. The Inquiry will review all documents and material generated for the Inquiry prior to sharing with any witnesses/expert(s)/publication and will apply redactions as necessary so that such disclosure complies with relevant data protection laws.
18. The Inquiry’s approach to the redaction of personal data is governed by the relevance of that data to the Inquiry, having regard to the lawful basis for processing that data and the necessity of its disclosure for the Inquiry to fulfil its Terms of Reference.
19. While names will not usually be redacted where relevant and necessary to the Inquiry’s work (unless the name is protected under another lawful exemption), the Inquiry anticipates that the following personal data will normally be redacted (this is not intended to be an exhaustive list):
    • Day and month of birth;
    • Personal telephone numbers;
    • Personal email addresses;
    • Personal social media identifiers;
    • Identification numbers;
    • Home addresses, unless the address is itself relevant;
    • Personal signatures; and
    • Irrelevant information.
20. The Inquiry will decide whether any other information needs to be redacted on a case-by-case basis. There may for example be some material which attracts Legal Professional Privilege (LPP) or public interest immunity (PII), or which the Chair considers should be redacted on grounds of confidentiality or special sensitivity, or which the Chair considers should be redacted so as not to prejudice the ongoing criminal investigation into the original offences of which Mr Malkinson was convicted and/or the investigation by the Independent Office for Police Conduct into matters concerning Mr Malkinson’s case (“Live Investigation or Proceedings”).

Process for reviewing extent of redactions.

21. Where the Inquiry identifies a document which it intends to disclose to witnesses/MPs, it will inform the MP/witness who provided the document. The MPs/witnesses may indicate which part or parts of the document (if any) they seek to have further redacted on the grounds that its disclosure is not relevant and necessary for the purposes of the Inquiry. Reasons must be given for each proposed redaction.
22. The Inquiry will consider all requests for redaction. The MP/witness who provided the document in question will be notified before it is disclosed.
23. The Inquiry expects MPs and witnesses to adopt a measured approach when seeking redactions and will redact documents only where there is a good reason to do so.
24. Where a document or part of a document attracts LPP or PII, the Inquiry will only disclose that material with the express written consent of the providing organisation which supplied the document in question.

Live Investigations or Proceedings

25. Where the Inquiry intends to disclose a document which may be relevant to a Live Investigation or Proceedings, the Inquiry may, subsequent to the steps set out in paragraphs 21 – 24 above, independently request representations on redactions from relevant MPs and other relevant organisations involved with the Live Investigation or Proceedings to which the document to be disclosed relates. The Inquiry will consider representations received in accordance with its request and will redact documents where it is satisfied that this is necessary to ensure that no prejudice to the Live Investigation or Proceedings is caused.

Determinations

26. The Chair may make a Determination when this is necessary to keep information private. Determinations restrict disclosure or publication of information.
27. A Determination made by the Chair will only specify such restrictions as:
    • are required by law; or
    • the Chair considers to be necessary to the Inquiry fulfilling its ToR; or
    • the Chair considers to be necessary in the public interest.
28. Determinations made by the Chair normally continue in force unless and until they are changed or cancelled. They will usually remain in force at least until the Inquiry has ended and often beyond that. A witness or MP can ask the Chair to change or cancel an existing determination which affects you. The Chair can decide to change or cancel a determination without an application having been made if she considers it necessary to do so.
29. Everyone must obey a Determination by the Chair. That includes the media, members of the public, witnesses, legal representatives, and all members of the Inquiry team.

Representations on extent of redactions / procedure for applying for a Determination by the Chair

30. There may be cases where the MP or witness disagrees with the extent of redactions proposed by the Inquiry and wishes to make a representation to that effect. Any representation should be made in writing and sent by email to the Solicitor of the Inquiry (Solicitor@AndrewMalkinsonInquiry.uk) as soon as possible.
31. When a MP or witness makes a representation:
    1. The Inquiry Legal Team will carefully consider the representation and explain whether it considers the representation justified, wholly or in part. It will seek further information if required in order to make full consideration.
    2. The Inquiry Legal Team will take a reasonable approach when considering any representations and will carefully consider representations from MPs and witnesses with regards to the protection of sensitive or confidential information.
    3. In its deliberations, the Inquiry Legal Team will consider each representation on a case-by-case basis, considering what is necessary and proportionate for the Inquiry to meet its ToR; that all personal data is processed under the lawful basis; and that disclosure complies with relevant data protection laws and any other relevant lawful order.
    4. It will communicate its decision to the MP or witness in writing (by email).
    5. If a witness or MP continues to be dissatisfied with the extent of redactions proposed by the Inquiry Legal Team, they may request that the Chair should make a Determination (as defined above paragraph 25) on the issue. The MP or witness should write to the Chair within seven working days of receiving the Inquiry Legal Team’s decision, setting out the arguments to which it wishes the Chair to have regard.
    6. Any applications will be considered by the Chair and a final determination issued within 21 days.
    7. The Chair will communicate her decision to the witness or MP and her decision will be final. At all times the Chair will act with fairness and consider what is:
       • Required by law;
       • Considered by the Chair to be necessary to the Inquiry fulfilling its ToR; and• Considered by the Chair to be necessary in the public interest.
32. The Inquiry recognises that circumstances can change. Therefore, MPs and witnesses may make further representations to the Inquiry Legal Team if a material change in the context or circumstances may require reconsideration of the extent of redactions.
33. The procedures outlined above are not intended to cover every eventuality or every procedural issue that may arise. It follows that, where necessary in the interests of fairness and in order to the fulfil ToR, the Inquiry may depart from this process.

Determination in case of live investigation or criminal prosecutions

34. In undertaking its work, the Inquiry will take steps to ensure that any Live Investigations and Proceedings are not prejudiced. Where, following the process in paragraph 25 above, a relevant MP considers that onward disclosure of a document by the Inquiry creates a risk of prejudice to a Live Investigation or Proceeding, it is open to that MP to seek a Determination from the Chair. The processes set out in paragraphs 26 – 33 above shall apply. The Chair will make such directions as they consider necessary to ensure that no Prejudice to the Live Investigation or Proceeding is caused.

Other information

35. The Inquiry operates independently from the Ministry of Justice and the Secretary of State for Justice, and they have no right of access to evidence collected by the Inquiry, including any documents (including statements) collected under this Protocol.
36. The Chair and Inquiry are not public authorities for the purposes of the Freedom of Information Act 2000.
37. MPs who are responsible for public records are reminded of their duties under the Public Records Act 1958 and that they remain responsible for complying with those duties, including (so far as relevant) in respect of any documents provided to the Inquiry under either the Phase 1 Protocol or this Protocol.

Future protocols

38. Future protocols will set out the procedures applicable in future phases of the Inquiry’s work. The Inquiry’ procedures and phases will be governed by the necessity of fulfilling the ToR and at all times, the Inquiry will comply with all necessary data protection legislation, including the lawful basis for the Inquiry to process data and any other relevant circumstances.

Conclusion of the Inquiry’s work

39. Following the conclusion of the Inquiry’s work, any documentation that is to be retained as part of the historic record will be transferred to the National Archives. In so doing, the Inquiry will ensure classified and sensitive material is duly protected. All other data that it is not necessary to retain (digital or otherwise) will then be destroyed. Any material subject to preservation by Inquiry will be outlined in future Protocols.

Issued under the authority of the Chair on 30 September 2024

ANNEX A – Guidance on provision of documents

---

1. First published on 9 November 2023, and updated on 12 November 2023, 12 December 2023 and 30 September 2024. ↩︎