The Divisional Court’s decision in R (on the application of UCPI Designated Lawyer Officers Core Participant Group) v. Sir John Mitting (Sitting as Chairman of the Undercover Policing Inquiry)[1] confirms, for the first time, that the chair of a statutory inquiry can compel a witness resident overseas to attend and give oral evidence, and that a prosecution for failing to do would not be an unlawful exercise of an extra-territorial jurisdiction. This is a marked shift from the numerous examples previously seen in which inquiry chairs expressly recognised that they did not have compulsive powers with regards to individuals based in foreign jurisdictions. This judgment substantially increases the risk that statutory inquiries in this jurisdiction now pose to international companies and individuals.
Background
The Undercover Policing Inquiry (UCPI), chaired by Sir John Mitting, was set up in 2015 following widespread and serious concerns about undercover policing operations over a number of decades.
This judgment concerned a former police officer anonymized in the UCPI as ‘HN86’, who had served as an undercover officer in the Metropolitan Police’s Special Demonstration Squad from the late 1970s, rising to detective chief inspector before retiring in the late 1990s following a mental breakdown. He is now in his 70s and has lived overseas for some 25 years, although he retains British nationality.
HN86 is represented before the UCPI, alongside other former Metropolitan Police personnel, by the UCPI Designated Lawyer Officers Core Participant Group (claimant). In 2024, HN86 provided a partial written statement to the UCPI, but when the chairman later sought oral evidence, HN86 refused to attend either in person or remotely and declined to apply for excusal on medical grounds. The chairman then issued a notice under section 21 of the Inquiries Act 2005 requiring HN86’s in-person attendance in July 2026 to give oral evidence. Under section 35 of the Inquiries Act, it is a criminal offence to fail, without a reasonable excuse, to do anything required by a section 21 notice.
The claimant sought judicial review of the chairman’s exercise of the section 21 power on two grounds:
- Jurisdiction: That the chairman had no power under section 21 to issue a notice to someone resident overseas. It was submitted that section 21 does not have extraterritorial effect due to the presumption against statutory extraterritoriality. It was further submitted that nothing in the language or scheme of the Inquiries Act rebuts that presumption. Furthermore, the offence under section 35 is not an extraditable offence, meaning there should be no scope for the prosecution of allegedly criminal conduct occurring overseas.
- Unfairness: That the process had been procedurally unfair. HN86 was served notice without forewarning that compulsive powers may be used against him.
The Divisional Court’s decision
With respect to the first ground, the Divisional Court concluded that the issue of a section 21 notice to a witness outside the jurisdiction is not in substance an exercise of extra-territorial jurisdiction. The offence under section 35 of the Inquiries Act is one of omission: It does not occur when the notice is issued or served, but at the moment the witness fails to attend at the required time and place. Up until that moment, it is still possible for the witness to comply – and so avoid criminal liability.
The court tested this through a series of hypothetical scenarios, concluding that a witness who happens to be abroad on the relevant date – whether on holiday or business – is in no materially different position than the witness who is resident in another country. In both scenarios, the witness is outside the territory of the UK at the relevant time, when they should be in the UK at the inquiry.
This conclusion drew on the well-established “substantial measure” doctrine under which English criminal law can apply where a substantial measure of the relevant activities takes place in England, even if other elements occur abroad. The court distinguished this situation with the authorities relied on by the claimant on the basis that those cases concerned notices requiring conduct (the provision of documents or information) to take place entirely outside the UK, whereas a section 21 notice requires attendance in the UK, so that the relevant failure necessarily occurs there.
The court confirmed that HN86’s British nationality was not relevant to the analysis: Because the offence is not extra-territorial, the court did not need to rely on the nationality principle to justify prescriptive jurisdiction, and the same result would follow even for a foreign national witness.
The court acknowledged the difficulties of practical enforcement against a witness who remains abroad is a different matter, noting that the section 35 offence is not an extraditable one. But it held that this went to the conceptually separate question of enforcement jurisdiction and did not undermine the existence of prescriptive jurisdiction to issue the notice and criminalise nonattendance in the first place.
On the second ground, regarding procedural fairness, the court held that section 21 does not require advance warning of an intention to issue a notice, not least because the recipient already has an opportunity to make representations under section 21(4). It found that the notice here did not come as a “bolt from the blue” given the preceding correspondence.
The application for judicial review accordingly failed and was dismissed.
Key takeaways
Prior inquiries assumed overseas witnesses were beyond their reach, declining to pursue them for that reason. This judgment overturns that assumption, confirming that foreign companies and individuals with no UK presence or nationality can be validly compelled to give evidence from anywhere in the world. Enforcement difficulties nonetheless remain an issue. However, the absence of an ability to take any immediate action against the overseas witness does not mean that section 21 notices do not carry significant coercive weight, given that failure to attend would expose that witness to criminal enforcement should they ever return to the UK.
[1] [2026] EWHC 1394 (Admin).
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