By letter dated 15 September 2022, Mr Jenkins’ legal representatives, Corker Binning, confirmed what I understand to be a matter of public knowledge, namely, that Mr Jenkins is subject to an ongoing criminal investigation related to the subject matter of the Inquiry. The letter went on to say that as a consequence, it would be open to Mr Jenkins to invoke his privilege against self-incrimination (“the Privilege”) and refuse to answer many of the questions within the Request.
On 3 October 2022 Corker Binning wrote to the Inquiry confirming that Mr Jenkins would seek to exercise the Privilege in relation to questions 16 to 49 (inclusive) of the Request. However, they also invited me to seek an undertaking from the Attorney General that would limit the use to which any written or oral evidence which Mr Jenkins gives to the Inquiry would be put. No specific terms were proposed, although it was suggested that it was “standard” for such undertakings to provide that any evidence given could not be used as evidence against the individual in question in criminal proceedings (or for the purpose of determining whether to prosecute him/her).
However, there is a strong feeling amongst the SPMs that the ongoing criminal investigation and any potential future criminal proceedings against Mr Jenkins should not be prejudiced or impeded in any way. There is also a substantial body of opinion amongst SPMs that the grant of immunity, whatever its precise terms, would have the effect of prejudicing or impeding criminal proceedings against Mr Jenkins notwithstanding that an Attorney General’s undertaking is not a grant of immunity against criminal proceedings. All the SPMs represented by Hudgell Solicitors oppose my making the request to the Attorney General on that basis, as do all those represented by HJA and a number of those represented by Howe + Co.
In all the circumstances currently known to me, I am not persuaded that it is necessary, to discharge the Inquiry’s Terms of Reference, that I should request an undertaking from the Attorney General. Rather, I am of the view that a ‘wait and see’ approach is the more appropriate course.