Volume 1: Findings and Conclusions
Annex 1: Procedures adopted by the BSE Inquiry
Fairness

1356 We gave an indication of the procedures we proposed to adopt at our Preliminary Hearing in January 1998. We considered it important to receive comments on our proposed procedures and therefore set these out in more detail in a consultation document issued by the Inquiry Secretariat at the end of that month. After taking account of comments on the consultation document, we issued a statement of our intended procedures.

1357 Further statements on our procedures in relation to later aspects of our work were issued during the course of the Inquiry. We did not regard our Statements on Procedures documents as an inflexible account of our procedures. We were prepared to, and did, vary our procedures in the light of representations and changing circumstances. The Statements were intended merely as a helpful guide to those participating in and following our work. Anyone wishing to learn more about the detail of the procedures we adopted may wish to refer to those Statements. ¹

1358 As we had proposed in our original consultation document, we adopted a two-phase approach to our work. The first phase, 'Phase 1', was confined to fact-finding. In 'Phase 2', we moved on to examine questions which required clarification, issues on which there were conflicts of evidence, and potential criticisms which might be made of individuals. This description seems to have given rise to a misunderstanding: some thought that there would be no, or no substantial, further fact-finding in Phase 2. In a revised Statement on Procedures for Phase 2, we made it clear that during Phase 2 we would continue to seek further evidence of the facts as we thought appropriate having regard to our Terms of Reference.

1359 As with Phase 1, our procedures for Phase 2 were the subject of a consultation process. Our consultation document explained that the Secretariat would write to individuals identifying potential criticisms. (Letters of this kind were recommended by the Royal Commission on Tribunals of Inquiry chaired by Lord Justice Salmon in 1966, ² and are known as 'Salmon letters'.) All who received such letters would be asked to respond in writing and would be entitled (if they wished) to answer any remaining concerns at an oral hearing.

1360 A number of concerns were expressed by witnesses. In particular, concerns were expressed in relation to the confidentiality of the potential criticisms we wished to explore with witnesses and of the response of those witnesses. We concluded that we could not guarantee to keep potential criticisms or the replies confidential. We stated in the relevant Statement of Procedures document that neither our letter notifying our concerns nor the response from the witness would be treated as documents over which the individual concerned had a right of confidentiality. Material from either document could be disclosed where such disclosure was considered necessary for the fair and proper conduct of the Inquiry.

1361 Those facing potential criticism are naturally concerned to be aware of any information which might be in conflict with the potential criticism. We used DFAs, RFAs and updates to ensure that witnesses were kept informed of relevant evidence. Our Secretariat undertook to consider whether there was any evidence of this kind which had not been referred to in a DFA (or comments on a DFA) sent to an individual facing potential criticism, and to inform that person of any such evidence. We added in our Statement of Procedures for Phase 2 that if material were supplied to the Inquiry in confidence, and the confidentiality were maintained, we would pay no regard to anything in that material supporting a potential criticism. If confidential information could reasonably enable an individual to contradict an issue arising out of a potential criticism, we would discuss with that individual what procedures should be adopted to deal with the material.

1362 In order to ensure that all relevant information was in the public domain, we requested that responses to potential criticisms be accompanied by a statement for the purpose of publication, which set out all factual matters on which the recipient of a letter of potential criticism wished to rely in addition to any evidence already provided in material published by the Inquiry. Not all those involved followed this course. The Inquiry Secretariat had to devote substantial resources to going through responses, identifying new evidence of fact and putting forward a proposed statement for publication. On occasion, to ensure that new evidence of fact was put in the public domain, it was necessary for the Inquiry to publish a 'statement of information provided by a witness' in the absence of approval from the relevant witness.

1363 At first, we had envisaged a 'final stage' of our Inquiry when those participating in the Inquiry would be given a relatively short time in which to make written submissions on relevant aspects. As Phase 2 progressed, we thought it would be more useful, once the main evidence relevant to a particular area was complete, to write to those facing potential criticism identifying anything which no longer needed to be pursued, and suggesting a time within which additional comments on extant potential criticisms should be supplied.

1364 We also concluded in November 1999 that the time had come to reduce the burden on Inquiry resources and change our procedures. It seemed to us that new factual evidence in Additional Comments would not necessarily require a new statement for publication. Our Statement on Procedures for Additional Comments said that we did not propose to publish any Additional Comments we received. We recognised that it was possible that such comments could contain fresh evidence on matters of fact tending to contradict an extant potential criticism, and proposed that in such circumstances we would make arrangements to ensure that anyone notified of the potential criticism in question was informed. This appeared uncontroversial, but when Additional Comments were submitted, there were some who took issue with this. In contrast to the stance adopted at the time of receipt of Salmon letters, a number of those facing potential criticisms said that they wanted their Additional Comments to be published. We considered, in each case, whether we should depart from the procedures we had envisaged for Additional Comments, but concluded that we should not.