Sarah Hemingway of Garden Court Chambers alongside Charles Bishop, John Warrington, and Julia Farrant, led by Fiona Scolding KC, acted for the Defendant, the Chairman of the Undercover Policing Inquiry (UCPI).
Counsel instructed by the Solicitor to the Inquiry into Undercover Policing.
The Defendant, Sir John Mitting, sits as Chairman of the Undercover Policing Inquiry (UCPI).
The judicial review concerned whether the Defendant has power under section 21 of the Inquiries Act 2005 (the IA 2005) to issue a notice on a former police officer, anonymised as HN86, compelling him to give oral evidence in London.
This judgment vindicates the actions taken by the UCPI Chair to demand that a key witness gives oral evidence to the Inquiry on important issues.
Background
The Claimant, UCPI Designated Lawyer Officers Core Participant Group, represent a number of former MPS personnel in the UCPI. HN86 was a resident overseas when the notice was served.
In 2024, HN86 voluntarily agreed to receive a request under rule 9 of the Inquiry Rules for written evidence. He provided a partial response by way of statement.
In August 2025, the Defendant indicated to the Claimant through the Solicitor to the Inquiry that he would like HN86 to give oral evidence. The Defendant informed the Claimant that they were happy to facilitate a remote session if HN86 was not willing to return London.
On the same day, the Claimant informed the Defendant that HN86 had given instructions that he “does not wish to give oral evidence, either in person or remotely. He remains unwell.”
On 29 September 2025, the Deputy Solicitor to the UCPI wrote to the Claimant explaining the Defendant’s reasons to serve a section 21 notice, as well as the possible consequences of non-compliance. The offer for HN86 to attend remotely was repeated.
The Claimant sent a pre-action protocol letter challenging the lawfulness of the s.21 notice on grounds that HN86 was outside the jurisdiction. The Deputy Solicitor to the Inquiry responded, stating that in the Defendant’s view, the notice was lawfully issued. The Inquiry continued to offer alternatives to in-person attendance in London, including remote attendance.
High Court Judgment
In the High Court proceedings, the Divisional Court (Lord Justice Singh and Mr Justice Jay) dismissed the Claimant’s application for judicial review.
In their judgment, the issue of the section 21 notice “requires the person to whom it is addressed to comply with it and, if they do not, renders them liable to the criminal jurisdiction set out in section 35 [of the IA 2005]. The fact that there is the alternative non-punitive route in section 36 does not detract from this.”
At para 86: “The purpose of a section 21 notice is to require the witness to attend the inquiry on a certain date at a certain time. The failure to attend at the due time is an offence of omission. Up to that moment, it is still possible in law for the witness to comply and so avoid criminal liability.”
“The fact that the witness happens to be resident in another country outside the UK does not alter the nature of that offence of omission at that time and place.” [para 87]
The Court addressed the issue of prescriptive jurisdiction as explained by Brownlie’s Principles of Public International Law (9th ed., 2019): “As is common ground, an offence in section 35 is not an extraditable one under the Extradition Act 2003. But, in principle, these are problems to do with enforcement jurisdiction, not prescriptive jurisdiction” [88].
Importantly, the judgment stated “There is a very strong public interest in ensuring that public inquiries have access to the information necessary to ensure their efficacy.” [104]
This judgment vindicates the actions taken by the UCPI Chair to demand that a key witness gives oral evidence to the Inquiry on important issues and in doing so overturns the accepted orthodoxy that witnesses living abroad could not be the subject of a section 21 notice requiring them to attend a public inquiry.
Full judgment (BAIILII): UCPI Designated Lawyer Officers Core Participant Group, R (On the Application Of) v Mitting [2026] EWHC 1394 (Admin) (09 June 2026)
