Restriction order application protocol
Purpose of the protocol
1. The purpose of this protocol (“the Protocol”) is to explain:
(a) what a Restriction Order is;
(b) who can be considered an Interested Party for the purposes of the Protocol; and
(c) how an Interested Party can apply for a Restriction Order.
What is a Restriction Order?
2. It is important that the proceedings of the Emma Caldwell Inquiry (“the Inquiry”) are conducted in public and in as open and transparent a manner as possible. The Inquiry will therefore as a general rule disclose all relevant witness statements and other material evidence to Core Participants. Documents referred to in the Inquiry’s public hearings or otherwise put in evidence will be published on the Inquiry’s website. All evidence to be disclosed will first be reviewed in accordance with the Inquiry’s protocol for the redaction and disclosure of documents.
3. A Restriction Order is an order made under section 19(2) of the Inquiries Act 2005 (“the 2005 Act”) by the Chair, which may impose restrictions on:
(a) attendance at an inquiry, or at any particular part of an inquiry; and/or
(b) disclosure or publication of any evidence or documents given, produced or provided to an inquiry.
4. Per section 19(3) of the 2005 Act, a Restriction Order may only impose restrictions that are required by any statutory provision, assimilated enforceable obligation or rule of law, or that the Chair considers to be conducive to the inquiry fulfilling its terms of reference or to be necessary in the public interest, having regard in particular to the matters listed in section 19(4) of the 2005 Act. The matters listed in section 19(4) are:
(a) the extent to which any restriction on attendance, disclosure or publication might inhibit the allaying of public concern;
(b) any risk of harm or damage that could be avoided or reduced by any such restriction;
(c) any conditions as to confidentiality subject to which a person acquired information that he is to give, or has given, to that inquiry;
(d) and the extent to which not imposing any particular restriction would be likely to cause delay or to impair the efficiency or effectiveness of that inquiry, or otherwise to result in additional cost (whether to public funds or to witnesses or others).
5. A Restriction Order may be made by the Chair if he considers it to be necessary, or on application by an Interested Party.
Who can be considered an interested party for the purposes of the protocol?
6. Any individual, group of individuals or organisation can be an “Interested Party”. Being a Core Participant is not a prerequisite to being an Interested Party.
How can an interested party apply for a Restriction Order?
7. An application for a Restriction Order (“an Application”) should be made in writing to the Solicitor to the Inquiry and submitted by email to legal@emmacaldwellinquiry.scot.
8. An Application should comprise:
(a) a section that describes the restriction sought and provides as much detail about the Application and the grounds on which it is made as possible (“the Open Section”). The Open Section should contain only information that the Interested Party making the Application is content for the Inquiry to share with Core Participants, the media and on the Inquiry website; as such, care should be taken not to include in the Open Section any information that would risk defeating the purpose of the Application, e.g. a detailed reference to information whose disclosure or publication the Interested Party wishes to restrict;
(b) a section that provides any additional information about the Application and the grounds on which it is made (“the Closed Section”). Information contained in the Closed Section will be treated as “potentially restricted evidence” within the meaning of rule 11(1) of the Inquiries (Scotland) Rules 2007 (“the Rules”); and
(c) any relevant supporting evidence, which, if considered necessary by the Interested Party, may be appended to the Open and/or Closed Sections of the Application.
9. Upon receipt of an Application, the Inquiry will follow the general process set out below:
(a) The Open Section of the Application will be disclosed to Core Participants and the media, subject to the Inquiry’s General Restriction Order. It may also be published on the Inquiry’s website. The Chair may issue a note of his provisional views in relation to the Application (“a ‘Minded To’ Decision”) when disclosing the Open Section.
(b) The Closed Section of the Application may be disclosed to Core Participants and the media, subject to the Inquiry’s General Restriction Order. Before such disclosure is made, the Inquiry’s legal team will consult with the Interested Party as to whether such disclosure should be made. The Chair will then decide whether and to whom to disclose the Closed Section in light of all the circumstances, including but not limited to:
i. any representations made by the Interested Party under rule 11(4)(b) of the Rules;
ii. the sensitivity of the material included in the Closed Section; and
iii. the importance of the material included in the Closed Section to the issues in the Application.
Consideration will be given as part of this process to the possibility of disclosing redacted versions of the material included in the Closed Section.
(c) The Chair will invite Core Participants and members of the media to provide the Inquiry with written submissions in response to the Application (and any ‘Minded To’ Decision that was issued). Such submissions may be published on the Inquiry’s website.
(d) The Chair may thereafter:
i. invite Counsel to the Inquiry to provide him with written submissions in response to the Application (and any ‘Minded To’ Decision that was issued); and
ii. hear oral submissions on the Application at a hearing, attendance at which may be restricted by the Chair in accordance with section 19 of the 2005 Act.
(e) The Chair will determine the Application and give a written ruling, which
will be published on the Inquiry’s website. The ruling may contain an addendum in respect of the Closed Section of the Application, which will be shared with the Interested Party and any Core Participants and media to whom the Closed Section was disclosed in accordance with paragraph 9(b) above but will not be disclosed to any other party.
10. The Chair may vary the procedure set out above when he considers it necessary to do so in the interests of fairness and having regard to the need to avoid any unnecessary cost.
11. If an Interested Party making an Application wishes for same to be determined by a procedure other than that set out above, written representations to that effect should be included with the Application.
Issued under the authority of the Chair on 18 December 2025.