UCPI Designated Lawyer Officers Core Participant Group v Sir John Mitting (Chairman of the Undercover Policing Inquiry) [2026] EWHC 1394 (Admin) (judgment here) 9 June 2026
Anyone who thought that disappearing abroad would provide a procedural invisibility cloak if an Inquiry chair or Coroner wanted to hear their evidence is now going to have to think again. In this latest Divisional Court decision arising out of the Undercover Policing Inquiry the Chair, Sir John Mitting, has just successfully defended his issuing of a witness summons to a witness abroad. Consequently any cloak may now wear thinner than an overused metaphor if that witness ever wants to set foot in the jurisdiction again.
Although the case arises from a Public Inquiry rather than an inquest, coroners and inquest practitioners should read it with care. The judgment contains a detailed judicial analysis of compulsory attendance powers and territorial limits challenging the previous assumption that inquiries (and by analogy inquests) have no power to issue a summons to a witness who is abroad
The dispute
The Chairman of the Undercover Policing Inquiry wished to hear oral evidence from a former undercover officer known as HN86. He had lived overseas for around 25 years, remained a British citizen, and although he provided a witness statement, he declined to give evidence either in person or remotely.[1] The Chairman served a notice under s.21 of the Inquiries Act 2005[2] requiring him to attend the hearings in London in July 2026.
When the issuing of the summons was challenged by way of judicial review the central question was framed as: does an inquiry have the power to issue a summons under section 21 of the Inquiries Act 2005 compelling a person who is abroad to attend in London to give oral evidence.
There was a wealth of material pointing the Claimant’s way. Previous public inquiries had proceeded on the basis that overseas witnesses could not be compelled to attend. The Manchester Arena Inquiry had even recommended legislative reform to deal with the problem. The Grenfell Tower Inquiry reported receiving advice that no mechanism existed to compel certain foreign witnesses. The Litvinenko Inquiry similarly treated overseas attendance as voluntary.[3]
The Coronial world has also operated under a similar assumptions. The Chief Coroners Guidance for Coroners on the Bench[4] suggests that Coroners lack power to compel evidence from someone outside England and Wales. Bean LJ having made an observation in Shafi[5] to similar effect.
The Divisional Court however took a different view
The Court’s reasoning
The Claimant relied heavily on the presumption that legislation does not have extra-territorial effect unless Parliament clearly says otherwise. That is a well-established principle and the Court readily accepted its existence.
The Claimant’s difficulty was that the court did not accept the premise that an Inquiry Chair issuing a notice (and hence by extension a Coroner issuing a Schedule 5 notice issued under paragraph 1 of Schedule 5 CJA 2009) would actually be a purported exercise of extra-territorial jurisdiction.
Singh LJ and Jay J concluded that, properly analysed, a s.21 notice requiring someone’s attendance at an inquiry in London is not really exercising jurisdiction abroad at all. The critical event is the witness’s failure to attend the inquiry on the specified date. It is at that moment that the omission and breach of the notice occurs in this jurisdiction because the witness should be complying with it and sitting in the hearing room in this jurisdiction but is not there.
“Where there should be a witness, there is an empty chair.”
Drawing on criminal authorities concerning cross-border conduct and the “substantial measure” doctrine the Court concluded that even if the witness is physically overseas a substantial part of the relevant activity (ie the breach of the notice by failing to attend) occurs in the UK as “where there should be a witness, there is an empty chair.”
Of course the more astute among you will have realised this is a hollow victory for the Inquiry Chair – there is a world of difference between having the power to serve a notice and any power to enforce it. The Divisional Court drew that distinction between having the jurisdiction to issue the notice and any practical ability to put it into effect.
So before Coroners start planning worldwide witness roundups, some caution is required. Even if a Section 21 or Schedule 5 notice has been issued and validly served abroad, a witness abroad cannot simply be hauled onto a plane by British authorities. An offence under s.35 of the Inquiries Act[6] for failing to attend is not an extraditable offence. Similarly, breach of a Coronial Schedule 5 notice can only lead to the consequences set out in paragraph 6 of Schedule 6 – which is that “the Coroner may impose a fine not exceeding £1000 on a person who fails without reasonable excuse to do anything required by a notice under paragraph 1 of Schedule 5.”
There is no enforcement mechanism to impose and collect that fine unless and until the witness sets foot in the UK. All this decision really amounts to is the confirmation that an empty chair can have legal consequences at a later date when/if the recalcitrant witness enters the jurisdiction.
Commentary
For inquest practitioners then, the case perhaps does not require a rewrite of the Bench Book, There still is no extraterritorial coronial power to compel a witness. It seems there is however a power to issue a Schedule 5 notice and fine the person up to £1000 at a later date if it is disobeyed and they later return.
In the UCPI Sir John Mitting had already taken the decision not to serve section 21 notices on other witness because it was said to be inexpedient and disproportionate to spend time and public funds pursuing them. However it seems HN86 was a very important witness.
Many coroners might similarly feel the whole rigmarole, necessitating an ongoing check on entry ports so as to be alerted when enforcement of a schedule 6 fine might be possible, will not, in the end, be worth all the effort. But of course, even if practically toothless, issuing a schedule 5 notice could incentivise voluntary attendance, the threat of enforcement steps being taken later perhaps might operate as a strong incentive to someone who retains British nationality or occasionally returns to this country.
Footnotes
[1] There was an option to give evidence voluntarily remotely as the Foreign, Commonwealth and Development Office had already given an indication that the British Embassy in his country of residence were in a position to assist had he wished to do so.
[2] This provides at “s.21(1) The chairman of an inquiry may by notice require a person to attend at a time and place stated in the notice (a) to give evidence…”
[3] Although the al-Sweady inquiry in 2014 may have got it right, as in that inquiry s. 21 Notices had indeed been served on witnesses residing overseas, even though inquiry understood “the Notice has no reach overseas.”
[4] that we are not supposed to call a ‘Bench Book’, but we all do (see here)
[5] [2016] 1 WLR 640
[6] Section 35(1) of the Inquiries Act 2005 provides that a person is guilty of an offence if he fails without reasonable excuse to do anything that he is required to do by a notice under section 21. The maximum penalty is 51 weeks imprisonment.