Commentary on Sections Section 16: Offences
Subsection (1) makes non-compliance with a notice served under Section 9 or a restriction order, or contravention of such an order, served under Section 8 an offence.
Subsections (2) and (3) make it an offence to do anything which is intended to distort or otherwise alter evidence, or to conceal evidence. Both these subsections are drafted so that it should not be possible for a person to commit an offence unwittingly (for example by destroying a document that he/she does not know to be relevant).
Subsection (5) ensures that it is not an offence to withhold privileged information under Section 10. This subsection also ensures that offences of altering or distorting information do not apply to actions authorised by the chairperson – for example, if material is redacted from documents in accordance with guidance issued by the inquiry.
Only the chairperson may institute proceedings for non-compliance with a notice issued under Section 9 or non-compliance with, or contravention of, a restriction order. This is because it is for the chairperson to decide whether to enforce notices issued under his power of compulsion, and how best to do this. There are two enforcement options: prosecution of an offence under Section 9, or enforcement of the notice by the High Court under Section 17.
Prosecutions for offences under Subsections (2) or (3) may be brought only by, or with the consent of, the Director of Public Prosecutions for Northern Ireland; this means that it is not possible for anyone with an interest in the outcome of the inquiry to bring a private prosecution against witnesses with whose evidence they disagree. It also means that prosecutions can be brought after the inquiry has finished.