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Public hearing session: Preliminary Hearing on List of Issues

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(11.00 am)

Sir Wyn Williams: Well, good morning everyone. My voice is quite good in carrying but I think there’s a microphone as well, so can everyone hear me?

It’s extremely good to see so many people taking an interest in what is the first session, I guess, of this Inquiry. Let me begin with one or two things that I need to say.

First of all, there is no fire drill today, so that if the fire alarm goes off, it’s real and you will be guided about what to do.

Second, one or two people, at least, who are accredited journalists have sought my permission to tweet and I have given it. The permission only extends to those who have asked for it. My understanding is that we’re on a three-minute delay, in other words, the proceedings are three minutes in advance of the YouTube or televised version of our proceeding. So I would be grateful if those who are tweeting abide by that three-minute delay.

I will ask everyone to silence their mobile phones or turn them off, as the case may be, and I should tell you that members of the Secretariat present will answer any questions which you may have as the day unfolds.

I am not going to try and identify all the persons present in this room, for obvious reasons, so when those who decide to speak come to that podium in order to do it, I will be very grateful if they would begin by introducing themselves and telling us who they represent, if they represent individuals or bodies, or otherwise explain why they are speaking.

You can see that I have a person sitting next to me. That is Mr David Page, who will be appointed by me as an Assessor. The role of an Assessor is set out in the Terms of Reference. It is (unclear: audio interference) in the summary. It’s on page 5 of the bundle, under the heading “Governance”. An assessor will provide:

“… advice the sources, content and interpretation of evidence received as appropriate [and a successor] may also provide independent scrutiny and challenge in relation to emerging findings and recommendations.”

If you want an even fuller description of an Assessor you can find it in the protocol which we published about such matters.

Mr Page and I have been working together for many months. He has academic qualifications in mechanical engineering and professional qualifications in management accountancy. He has very considerable practical experience of large projects relating to computer systems and their management, and I can tell you that his expertise has already proved invaluable to me in setting lines of enquiry and understanding concepts which were, I confess, completely alien to me before my involvement in this Inquiry.

Can I give you an update on the appointment of a further assessor. I intend to appoint one more assessor whose area of expertise can loosely be described as corporate governance. The selection process for that appointment is at an advanced stage and I hope to be able to publish the name of my proposed appointee in the coming days. Just as I did prior to confirming the appointment of Mr Page, I will allow Core Participants the opportunity to make any representations they wish about that person prior to my confirming the appointment.

In this Inquiry, I am the sole decision-maker. Although I have no doubt that I will receive a great deal of assistance from my assessors and the Inquiry legal team, ultimately I will be responsible for the conclusions and recommendations which will be laid out in my report to the Minister and which will be the concluding act of this Inquiry. So I had better say one or two things about me so that you know who you are dealing with.

I qualified as a barrister in 1974 and practised from chambers in Cardiff between 1975 and 1998, which spanned most of my career. In 1998, for some unaccountable reason, the lure of London finally captured me and between that date and 2004 I practised from chambers in London.

I became a full-time judge in April 2004 and I retired as a full-time judge in February 2017. You should know that I currently hold fee-paid judicial appointments as President of Welsh Tribunals and as a judge of the Courts of Appeal of Guernsey and Jersey.

I have also been known to involve myself in sports disciplinary panels and sports arbitrations but that is now on hold given the scale of the task which confronts me in this Inquiry.

I am under no illusions about its scale and importance and I have no doubt that, subject to my judicial activities, it will demand my attention full time henceforth.

Let me turn to today’s hearing. It was arranged following the receipt of written submissions on the Provisional List of Issues. At that time, I had no idea what might be said about the four themes which were identified in the notice of hearing. I did not know when the hearing was arranged, to what extent, if at all, there would be a disagreement about whether I should investigate the four themes or some of them.

I have now had written submissions from a number of Core Participants and interested persons. It is clear and obvious that there is a good deal of agreement amongst those who have provided those submissions about whether I should investigate the four themes.

There are, however, discernible differences of approach or at least potential differences of approach as to how I should proceed in investigating these themes. Accordingly, oral submissions today are still very welcome.

There is one topic in relation to theme (B), that is the theme headed “Reliance upon Legal Advice”, which has the potential to be particularly problematic. My current view is that the issue of reliance upon and/or waiver of legal professional privilege is inextricably bound up with this theme and the many potential issues which arise in relation to legal professional privilege will have to be resolved in early course.

My preference, of course, is that any Core Participant or interested party invited by me to waive legal professional privilege will do so. In the absence of an agreement to waive privilege in the face of such a request, however, I will have to determine whether that participant is entitled to rely upon such privilege and, if so, what consequences, if any, flow from such reliance.

There’s no purpose in being coy about this. Post Office Limited is currently considering its position in relation to legal professional privilege, as is clear from its written submissions. I would urge Post Office Limited to reach a conclusion about legal professional privilege as soon as it can, and certainly over the course of the next few weeks.

If a determination by me on this issue becomes necessary, I will seek to make it over the course of the coming weeks and I have every intention of resolving the issue well before the end of the year.

Three further matters before I begin the process of hearing submissions. First, I would like to emphasise that this hearing does not constitute the opening session of the many hearings to come at which evidence will be taken. This is a preliminary hearing convened for the specific purpose of hearing submissions on four issues which may find their way into my finalised List of Issues. Accordingly, it would not be appropriate for anyone who proposes to speak today to stray from submissions relating to the four themes set out in the notice of hearing into other topics. I am sure that that is generally understood but I’m equally sure that a gentle reminder does no harm.

Second, can I make it clear to all those present that it is my hope, fervent hope, that all participants in the Inquiry will do their best to co-operate with me throughout the months to come. This is so particularly in relation to the timely production of evidence and documents and willingness to give oral evidence at times and on dates which best suits the smooth running of the Inquiry.

When I commenced the non-statutory phase of the Inquiry, one of the first things that I did was to hold informal preliminary meetings with very senior representatives of the institutions most obviously connected to the scope of my investigations. Those institutions, and excuse the acronyms, were BEIS, UKGI, POL, Fujitsu, NFSP and CWU. The representatives of those institutions assured me that all the institutions for which they spoke would co-operate fully with the Inquiry. I trust that this still holds good and that all other participants are of the same mind.

Third, you will be aware that last week I made two announcements to alert participants about how I expected today’s proceedings to be managed. In my first announcement, I said that I expected all participants who had made written submissions to be able to complete their oral submissions within 20 minutes and that those who had not previously made written submissions should complete any oral submissions within 30 minutes.

In my second announcement, I provided a provisional batting order for those who wished to speak. I made those directions in order to ensure that everyone who wished to speak had a reasonably sufficient time in which to do so.

I have had one request, that there be an extension of time afforded to Mr Stein, Queen’s Counsel, to 30 minutes for his representations. I have not answered that request as yet because I did not know how others might perceive it and I wanted to be open about what might occur. What I propose, Mr Stein, is that I will see how the land lies by the time it’s your turn to speak and, if time permits, who knows, I may be a little flexible.

Are there any other requests for extensions of time beyond 20 or 30 minutes? Very good.

Does anyone wish to raise any issue about my proposed order of speaking? Even better.

Well, then, let’s start hearing the oral submissions. So I’m not expecting that I get a clamour in response to my first question but is there any person present who wishes to make oral submissions to the effect that the Inquiry should not investigate one or more of the four themes?

I should really have said that I expected a stunned silence, which is what I have.

So let’s move on. There are two Core Participants who told me that they did not expect that they wished to make oral submissions but that, of course, might change. Those two Core Participants were UKGI and Fujitsu. Is it now the case that either wish to make oral submissions, in which case, I’ll take them in the order of UKGI first and then Fujitsu?

No, thank you.

It’s a long way from Cardiff, you know. So let’s move to the next stage. At paragraph 3 of my provisional order, I suggested that we would take oral submissions in the following order: firstly, BEIS. Are there to be any submissions on behalf of BEIS? Now, I understand that – there are not. Do I understand, so that I’ve got this right, that Mr Chapman is present or is he remote?

(Off-microphone comments)

Sir Wyn Williams: The people at the back may not be able to hear this. A barrister by the name of Chapman represents BEIS. He’s not presently in the room and he’s not going to be in the room today. He is able to join remotely at some suitable time but, currently, you don’t anticipate Mr Chapman wishes to make any submissions; is that it? Right, thank you very much.

The next name on the list was Post Office Limited. Ms Gallifant, are you going to break my duck? You won’t be making submissions either. Thank you.

The next person on my list was Ms Vennells. Is she and/or her representative present?

(Off-microphone comments)

Sir Wyn Williams: Thank you.

Metropolitan Police Service? Thank you.

Well, then I think we have reached Mr Stein and Mr Moloney and I invited them to agree between them who is to speak first. I am anticipating that my duck is about to be broken, so whichever one it is that is proposing to speak, would you please come forward.

Submissions by Mr Stein, QC

(On behalf of Subpostmasters represented by Howe & Co Solicitors)

Mr Stein: Thank you, sir. Is my 30 minutes more likely now than it was earlier?

Sir Wyn Williams: Why did I wonder about whether you would start by asking me that question? I think you can safely assume that I won’t cut you off until 30 minutes has elapsed. But I will ask Mr Page to time you.

Mr Stein: Sir, I’m very grateful. My name is Sam Stein, I am a QC and I’m instructed with Christopher Jacobs, who is my junior, by Mr Enright and the team of lawyers at Howe & Co.

Together we act for 151 Core Participants. These are subpostmasters and Post Office managers and employees whose lives were ruined by the actions of Post Office Limited, Fujitsu and the Department for Business, Energy and Industrial Strategy, which we all call BEIS.

Sir, I will start by making a number of general points which will frame our submissions on the preliminary matters that you have asked us to address. As you are aware, it is now agreed that our clients were falsely accused by the Post Office of taking money. They were threatened with dismissal and prosecution and told to repay so-called shortfalls that had been identified by the deeply flawed Horizon system.

Using a divide and conquer strategy, the Post Office told sub-post masters and mistresses – I will probably use “SPMs” as my way through subpostmasters and mistresses throughout my address. Using a divide and conquer strategy, the Post Office told SPMs that their branches were that only ones which at accounting shortfalls has been identified.

Sir, you know that many of our clients were coerced into paying tens of thousands of pounds to account for the so-called shortfalls.

Some were prosecuted. Many were sued and many more were threatened with both. Some were made bankrupt. All of our clients endured terrible stigma in their communities, which, in many cases, remains to this date.

In the hearings which we anticipate will start next year, you will hear heart-rending accounts of those whose children were bullied and spat at, those who died before their names could be cleared and many who contemplated or attempted suicide.

Today, and that means right now – I’ve been reminded forcefully of this by my own client group attending today – my written words say this ex-SPMs face imminent financial ruin, but in fact of it is people are in financial ruin. People will lose their homes unless something is done urgently to assist them. Some may not survive the lifetime of the Inquiry due to stress-related illnesses.

This scandal has always been about money and reputation. On the one hand, the Post Office presented a dishonest picture of its finances and its system and sought to preserve its reputation at all costs. On the other, the Post Office attacked the financial integrity of subpostmasters and destroyed their reputations. Despite the judgments in the High Court, Civil Court of Appeal and the Court of Criminal Appeals, SPMs are still not in receipt of any adequate financial redress and many suffer still under the stigma of years of reputational loss.

Last month, my solicitors, Howe & Co, wrote to Nick Read, the CEO of Post Office Limited, on 22 October pressing him for urgent compensation for all and, vitally, calling on Post Office Limited and the Government to repay the legal and funding costs deducted from compensation paid in the group litigation.

Sir, it will interest you, we believe, to learn that solicitors Herbert Smith Freehills, instructed by Post Office Limited, responded late last week, as follows, stating amongst other things:

“Post Office Limited has been clear that it understands the continuing sense of injustice amongst the Claimants in the group litigation since it came to light through media reports that around 46 million of the settlement sum was applied towards the Claimants’ litigation funders and legal advisers. Post Office Limited has been in contact with the Government in this regard and will continue these discussions on the group litigation settlement figures.”

Now, that is some progress; at least, discussions are taking place. We know that the minister with responsibility, Mr Scully, has stated:

“This is something that has been going on for 20 years and we can’t look to the future until what has happened in the past is sorted out. It is important we ensure fair compensation to those who have been affected.”

We say this, sir: Post Office Limited and BEIS need to recognise that payment of proper and full compensation, the return of legal costs, is required now. That means immediately and not at some unknown point in the future nor subject to continuing discussions.

Post Office and Government has told us they are discussing this. Do it: don’t discuss it, just do it.

Now, sir, you have shown every sign, understandably, of wanting this statutory inquiry to proceed with all due speed and expedition to get to the truth and establish who knew what and when. But, frankly, we are concerned that Post Office Limited and BEIS may use the lifetime of the Inquiry to obfuscate and say we need to wait and see what the Inquiry says before they act.

Sir, when you finish this Inquiry, perhaps something like a year from now, your powers as an inquiry chair will be extinguished. Therefore, we suggest there is a challenge. What can this Inquiry do about compensation now?

There has been no disagreement with our written submission, sir, that the word “redress” in the Provisional List of Issues means financial redress and that, therefore, we expect that the word “financial” will be added to the Final List of Issues for this Inquiry wherever “redress” is mentioned.

The Inquiry’s power to investigate financial redress and its adequacy will rapidly expire if it only begins to wrestle with the issues of financial redress near its end and so – and you will no doubt be one of the many judges that prefers solutions rather than problems – we suggest that the solution required here is active engagement on the question of financial redress from the very start of the process.

In the light of Post Office Limited’s letter, and it and Government’s recent statements, we ask you to direct that Post Office and BEIS provide a position statement within two weeks or whatever period of time you think would be required, a position statement on what they have done so far regarding compensation, what monies have been paid, to which groups, and what are the immediate plans for the roll out of compensation in the future.

Sir, you know that the chair of a public inquiry has wide power to call evidence that the inquiry believes is relevant to its terms of reference and issues. It is this power that we ask you to employ as soon as possible to compel the Post Office and BEIS to disclose to the Inquiry and all Core Participants an up-to-date clarification on compensation. Post Office Limited and BEIS should be requested, and if necessary compelled, to inform you as to progress on compensation, with the implicit legal threat that if answers do not satisfy, the Inquiry will require clarification. The Inquiry will be able to call representatives from the Post Office and BEIS to give evidence as to progress.

We believe that this can work to assist you in the question of financial redress and we would also add that, if you are minded to take this course at an early stage in the Inquiry it will be of assistance if BEIS and the Post Office Limited identify a single point of contact for you and the Inquiry to use in relation to this.

That step is not without precedent. Within the Infected Blood Inquiry the chair has called for submissions on recommendations to be made before closing submissions more generally, so that he, the chair, Sir Brian Langstaff, can consider what evidence should be called and from whom to answer questions as to possible recommendations.

Further, in that Inquiry, it is accepted that, Sir Robert Francis, Queen’s Counsel, who is drawing up the plans for compensation, will be called to give evidence about his proposals for a compensation framework.

The Post Office, sir, has had plenty of time to sort this out with Government. They should not be permitted, sir, to add to the extent of the Post Office scandal by doing nothing, delaying payment, prolonging suffering and avoiding responsibility. Instead, we suggest that this Inquiry should demand urgent and immediate action.

Sir, the four issues themes. We have sent to the Inquiry our detailed submissions on the 184 points in the Provisional List of Issues. We would wish to record our appreciation for that list, which shows that the Inquiry is anxious to overturn every stone in this scandal. We have proceeded today on the basis that you, sir, have identified these four issues as the only points which required further consideration and that, generally, our submissions on the remaining issues have been accepted. Sir, obviously if that is not the case, we are happy to provide further written submissions on any other point which you, sir, would ask us to consider.

We would also remind you, sir, that, obviously, our submissions have been made prior to the analysis of the evidence yet to be disclosed and so that means that, as the Inquiry process continues and disclosure is made, we might have further points, if necessary, to be added to these submissions.

In relation to those four issues which you have identified, we note, as you have already done today, that Core Participants and other interested parties have provided written submissions largely in agreement that the Inquiry should investigate all aspects of the events surrounding Second Sight, reliance by Post Office Limited on legal advice, conduct of the group litigation and divergences across the United Kingdom.

Therefore, we invite you, sir, to admit these four themes or issues in their entirety. However, sir, as you already noted, points do arise from the submissions of BEIS and POL (Post Office Limited), which we need to address today.

Firstly, BEIS. As stated at paragraph 9, sir, of their written submissions, that it is not necessary for the Inquiry to proactively investigate legal advice received in relation to individual civil and criminal cases. We could not disagree more.

Our position is that it is essential that the Inquiry investigates why Post Office Limited prosecuted or brought civil claims against SPMs for shortfalls when it knew full well that the Horizon system was defective and whether it acted, in doing so, on legal advice.

The Inquiry should investigate the circumstances in which that advice was given and what the advice was. BEIS say, at paragraph 9 of their submissions, that this would be too time-consuming and could be dealt with elsewhere, referring to other fora. That submission, we suggest, must be rejected.

We do not, of course, ask the Inquiry to examine the detail of every individual prosecution or civil claim. Rather, we ask that the Inquiry selects a representative sample with assistance from Core Participants in submissions in relation to the cases for investigation that the Inquiry can then look at and examine and consider what went wrong, what was the legal advice, what was it based on and what disclosure was either given or not given to the lawyers. Taking this tack would not be disproportionately time consuming at all and would be consistent with the case study approach adopted in numerous other public inquiries.

The other fora suggestion from BEIS does not seem, we submit, to reflect any real-world analysis of what is required. BEIS seem to be saying that these other fora (in other words, other court places) – BEIS seem to be saying that these other fora are better suited, and I quote:

“… to identifying and resolving specific failings including negligent or improper legal advice [in individual cases].”

This seems to us to be a suggestion that those so grievously harmed by their actions and failures should yet again resort to the courts to pursue a claim. There is also the disturbing implication within the submission that SPMs would have to so resort. Is this, we enquire, a hint of some level of discrimination about entitlement to compensation?

Well, sir, it won’t surprise you to learn that SPMs have had enough of legal systems and legal costs. Instead, we invite you to deal with those issues as part of the Inquiry, making a reasonable selection out of the available cases and resolve the questions as to legal advice within civil and criminal cases.

Within the Criminal Court of Appeal, there was disclosure to the appellants’ legal teams of privileged material that related to individual prosecutions. That material is currently withheld under undertakings to the Court of Appeal, but it has been disclosed within that fora, the Criminal Court of Appeal and, therefore, to the extent of that appeal process, privilege was waived within those proceedings to the clients affected and their lawyers.

Having represented clients before the Criminal Court of Appeal, I can say that material exists as to the decisions to prosecute, investigations, acceptance of pleas, and the knowledge or lack of knowledge of lawyers, which is relevant to this Inquiry but, because I am still bound by my own undertaking to the Criminal Court of Appeal, I cannot say anything further in any more detail. But we do say overall, that it cannot be seriously suggested that this Inquiry is anything other than the appropriate forum for these investigations.

One further point is also relevant both to this issue and the consideration of issue (D)(i), which is the question of divergences in the policies and practices adopted by the Royal Mail Group and POL within the four countries of the UK.

The way that prosecutions were handled and the possibility that we suggest exists, that there was a lower percentage of prosecutions in the devolved jurisdictions, appears to be a matter that this Inquiry should investigate. It may well be that there was a difference because Post Office Limited had to deal with alleged criminal activity by reporting to the Procurator Fiscal in Scotland and the Public Prosecution Service in, Northern Ireland.

Obviously, within England and, sir, I am afraid Wales, there was no such barrier and the Post Office conducted prosecutions as a private prosecutor.

For these reasons, we ask you to reject what BEIS have submitted in relation to (B)(i)b. The other issue, sir, which you have addressed today is that POL appears to be resistant to the disclosure of documents that they consider have been subject to legal privilege. POL submits that it will seek to reach a view in principle on this issue as soon as it reasonably can but it is unlikely – and, as we have had no update, it is unlikely, they had said, that it would be able to do so before today’s hearing and we’ve heard nothing since and so it is not going to happen today.

Sir, you have already addressed this particular issue and you have already planned a course of conduct, which will be, as we understand it, that where necessary and where required and relevant, you will invite waiver of privilege but that there may be a need for this matter to be discussed in a preliminary – in submissions in future.

What we do ask, sir, is this: if we reach the stage where there is a need to consider the question of the extent to which or the principle of waiver at all, that we ask that there is a further preliminary hearing, an open hearing, in public, so that those we represent, all 151, can hear and listen to either the Post Office or BEIS explain in public what their attitude is or not to the waiver of privilege.

Sir, we ask you to take that course, rather than dealing with such matters in relation to privilege on paper. The reason for that, sir, perhaps is obvious but, given the past history of actions by the Post Office, we suggest that the public examination of such issues is a way to perhaps force BEIS and the Post Office to consider their position rather more carefully than if they have to only do that on paper.

I conclude, sir, by raising two issues that are important to my client group. Firstly, SPMs paid hundreds of thousands of pounds to the Post Office Limited in relation to the Horizon-generated so-called shortfalls. Yet POL has refused to disclose the details of what we believe are suspense accounts which would show where that subpostmasters’ money went.

POL cannot be allowed to frustrate this process. It is, we suggest, essential that the Inquiry investigates what became of that money that postmasters paid to account for the so-called shortfalls, whether this was rolled over into the POL accounts, whether POL took the money, and a direction by the Inquiry for immediate disclosure from POL will at least begin examination of that process.

Lastly, may I finish with a discrete point. You, sir, will be aware that POL is wholly owned by the Department of BEIS, which is the sponsoring department of this Inquiry. At all material times, BEIS appointed and appoints the CEO and board members, and BEIS was and is the accounting officer for POL. POL is effectively the creature of BEIS.

We believe the evidence will show that BEIS was either aware or should have been aware of the substantial failings of Horizon before its imposition on SPMs throughout the period of time, over 20-plus years, of this scandal. Any investigation of POL must necessarily be an investigation of BEIS, its state of knowledge, its actions or inactions.

Therefore, this Inquiry is not solely about Horizon IT systems but about the abuses visited on SPMs and their families by a national institution, wholly owned and controlled by a Government department.

It’s a small point, you may think, but it is an important point for our client group. Our clients submit that the Post Office Horizon IT Inquiry should be renamed the Post Office Inquiry to properly describe the purpose and focus of this Inquiry.

Sir, those are our submissions. I hope I’ve kept within the time limit and the buzzer hadn’t yet gone off. Can I assist any further?

Sir Wyn Williams: No, that’s fine, Mr Stein, and I had no indication from Mr Page that I should stop you.

Mr Stein: Thank you, sir.

Sir Wyn Williams: Mr Moloney, when you’re ready.

Submissions by Mr Moloney, QC

(On behalf of Subpostmasters represented by Hudgell Solicitors)

Mr Moloney: Sir, I am sure everybody will be relieved to hear that I can be very brief in my submissions to you, sir.

Sir, the Core Participants represented in this Inquiry by Hudgell Solicitors are very grateful to have been allowed the opportunity to make a contribution on the four areas upon which you invited submissions.

The Core Participants represented by Hudgell Solicitors are unique in that each and every one of them has been prosecuted to conviction and punished as a result of the failings of Post Office Limited and the Horizon software system.

Accordingly, they have all had the shame and humiliation of arrest and prosecution, all experienced the enormous psychological toll associated with that process, a large number received a custodial sentence and many immediately went to prison, with all the attendant problems created, and each and every one of them, the Core Participants represented by Hudgell Solicitors, have seen their convictions quashed.

They are, therefore, uniquely placed to speak to many of the issues with which this Inquiry will be concerned and will seek to assist this Inquiry at all times. To that end, we have provided comprehensive written submissions and we don’t propose to rehearse them in any detail.

Sir, indeed, Mr Stein has mentioned many of the points made in our written submissions and so there’s no need to repeat them.

We simply make this one observation over and above our submissions, our written submissions, sir, which is hopefully relevant to your observations on privilege this morning. The convictions of the Core Participants that we represent were quashed in April, which, is some seven months ago and no decision yet has been made in relation to privilege, and we’d ask Post Office to heed your encouragement in respect of that decision-making that you gave this morning, sir.

Those are our observations.

Sir Wyn Williams: Thank you very much.

Now, according to my list, the next two parties who may wish to make oral submissions are representatives of the National Federation of SubPostmasters and the Communication Workers Union. So we’re going to need to test our technology. So could we see if they are present remotely, please? If there’s any difficulties, since we are making such rapid progress, there won’t be any harm in having a few minutes’ break. I can see – it is Mr Greenhow, isn’t it?

Mr Greenhow: It is. Thank you.

Sir Wyn Williams: So, Mr Greenhow, we have reached you a little more quickly than I expected but are you ready to make your submissions?

Mr Greenhow: I am.

Sir Wyn Williams: Thank you. Well, then would you, please.

Submissions by Mr Greenhow

(On behalf of :abbr:`NFSP (National Federation of SubPostmasters)`)

Mr Greenhow: I am Calum Greenhow and I’m the Chief Executive of the National Federation of SubPostmasters. Firstly, I would like to take the opportunity to thank the Chair for enabling the NFSP to put forward our view on this scandal that has impacted so many postmaster colleagues, assistants and employees of the Royal Mail Group since 2012, and those of the Post Office since.

The NFSP represents every type of post office across the network in the UK, from the largest city centre post office, to the smallest outreach covering communities in the most rural and remotest areas of the country. In total, our members own and operate around 9,000 post offices.

Mr Chairman, you need to ensure that those impacted have their reputations restored and all their losses, including their consequential losses, refunded. We must then guarantee that nothing like this can ever happen again.

The NFSP hopes that the Inquiry is able to understand what went wrong in the past, how to bring about positive action to those who were impacted by the scandal and also to provide protection to the current and future network.

I wish to highlight at this point that, from the figures provided via a Freedom of Information request, since 1999, 766 individuals have been prosecuted by the Post Office either as a standalone company or as part of the Royal Mail Group prior to 2012. Of those number, 56 per cent were postmasters with the other 44 per cent being either assistants or employees of Post Office Limited. These 44 per cent sit outside the remit of the NFSP as we are purely a trade body that represents interests of postmasters as we are postmasters ourselves.

It would therefore be inaccurate to describe this postmaster issue alone, as we know that employees of Post Office Limited were charged, prosecuted, convicted and, in some cases, sent to prison.

The reality is that, if you worked behind the counter of a Post Office, you were at risk. Therefore, we do a disservice to these colleagues if the focus of this Inquiry is solely on postmasters.

As a postmaster throughout this whole period though, this provides me with a unique perspective of the years under consideration, not only myself and my family and my employees were at risk from what we have learned through the court cases of 2018 and 2019 and it is by sheer luck that we have not been caught up in this predicament, like so many of our colleagues over the years.

During this period, the Post Office saw a dramatic decline in both footfall and income resulting in three cost-cutting exercises of urban network reinvention in 2003, network change in 2007 and network transformation from 2012. Therefore, I have firsthand experience of the same growing frustration as my colleagues dealing with the Post Office and the isolation of the continual erosion of support which came about from these cost-cutting exercises. To this day, I wonder if the priority was in implementing these Government strategies to the detriment of colleagues, resulting in them being ignored as a result.

Therefore, along with thousands of serving subpostmasters that the NFSP represents, I have personal interest in this case and a deep desire to ensure that the scope of the Inquiry is able to, once and for all, discover what went wrong and how so many people were impacted in the manner they were. We cannot escape the reality that the Government of the day said there wasn’t anything wrong, the Royal Mail Group and Post Office said there wasn’t anything wrong, ICL Pathway, now Fujitsu, said there wasn’t anything wrong, and the criminal justice system convicted these people and, in some cases, sent them to prison.

These four distinct groups are such behemoths that this full situation has been very much likened to David versus Goliath. On that basis, I wish to state my gratitude to those who have steadfastly sought to ensure justice when the odds were so stacked against them. I am glad they are now receiving the justice they deserve but I am sorry it has taken so long.

Government, as the owner of the Post Office and de facto business partner of myself and my colleagues around the country, own and operate a network of 11,500 post offices, and can no longer take a hands-off approach to this organisation as it has in the past. A Government minister attended the NFSP annual conference in 2000, we had issues involving Horizon that were discussed and debated by postmasters.

Ministers were aware in 2003 of Alan Bates’s situation, in a timely quote from the Minister’s statement to the House in 2010:

“I have in recent months received a small number of representations from honourable members, one direct from the subpostmaster, about the Horizon computer system. Issues relating to the Horizon system are operational matters for Post Office Limited, which investigates all concerns raised by subpostmasters about Horizon and will continue to do so if any are raised.”

Each time, this arm’s-length, nothing-to-do-with-us approach comes up from Government. It wasn’t good enough then and it can’t be going forward. At this juncture, it is worth noting that 80 per cent of the cases were between 1999 to 2010, with 20 per cent between 2010 and 2015. There have been no cases since 2015, so why the sudden stop in prosecutions? Was there a policy change within the Post Office from 2015?

It is a matter of public interest that the former ministers responsible for the Post Office during the GLO years gave their account of what they knew, said and did. In 2015, the BEIS Select Committee held a hearing into the Complaints, Review and Mediation Service, but its findings were never published.

Given what postmasters, assistants and employees of Post Office Limited has endured it is imperative that the thoughts and findings of the Committee are now published.

Turning to the points of the Inquiry seeks to consider today. In respect of Second Sight, NFSP seeks to understand the chronological order of events, who the key decision-makers were and who was on the ad hoc board that blocked the required information from being provided to Second Sight and why.

Further, did this ad hoc board answer to the full board of the Royal Mail Group and then the board of the Post Office from 2012?

With regard to the dismissal of Second Sight and the termination of the Complaints Review and Mediation Service, more clarity is needed to understand why Post Office dismissed the reports and findings made by Second Sight. Who made this decision? But what role the Government played in this? It is important to note the timing of the dismissal, as from the Second Sight report of April 2015 at 2.8:

“In light of this apparent conflict of views between the Post Office and the independent body set up to administer the scheme (ie, the working group) we would normally have asked the working group to provide guidance on this matter. Unfortunately, it has not been possible to do this, as on 10 March the Post Office announced that the working group had been wound up with immediate effect.”

This is the day before Second Sight were due to circulate a draft of their report to all members of the working group. It is also the day that the Post Office notified Second Sight that their contract to conduct an independent investigation into matters raised by applicants was being terminated. Therefore, at a key point the working group was disbanded and the Post Office dismissed the report of Second Sight. It has to be investigated as to who disbanded the working group and why.

The question is if Second Sight had been able to represent – present the report, would the working group have been able to ignore it? Would they have been compelled to act on its findings? Would the victims have been able to gain justice sooner? It has been reported that Second Sight were ordered to destroy all documentation of their investigation. If true, we need to know who ordered this to happen and why.

In respect of the scope and findings, although there was some agreement in relation to what was meant by the Horizon system (in that it covered software, hardware, telecommunications testing and training), what the scope of the investigation was not able to cover was such a vital part of the whole interaction with the postmaster, the assistant or the employee; this was the audit and investigation process.

In its supplementary response to the 2015 BEIS Select Committee hearing, the Post Office said:

“It is not seeking to frustrate the work on Second Sight through inappropriate control of information. As part of its investigation, Post Office provides all the information it holds relevant to the case and continues to work with Second Sight to provide additional information required as part of their investigations and in line with the requirements agreed by the working group.”

Clearly, Second Sight had a differed view. They said at 3.1 of their report:

“The limitations scope reported above has in our opinion significantly restricted our ability to complete our investigation into some of the issues commonly raised by applicants of the scheme. It is particularly regrettable that two of the issues raised, access to complete legal files and to the background emails, failed to represent policy decision taken at a senior level within the Post Office, which is contrary to the undertakings previously provided to Second Sight, to applicants to the JFSA and to MPs.

“In regards to the scope of the report, there are three key areas where Post Office view is outside the scope of Second Sight, namely the contract between postmasters and Post Office, the transfer of risk from Post Office to postmaster, assistants and employees, plus the audit and investigation process of Horizon. These were all areas identified as problematic by Justice Fraser.”

Turning to the Post Office reliance upon legal advice, NFSP believes that it is essential for the Inquiry to explore the issues raised. The NFSP has flagged previously victims of the Horizon scandal were failed in numerous ways by numerous organisations and institutions, including the criminal justice system. The Inquiry should explore these issues to determine the extent to which the Post Office and the Royal Mail Group acted on inadequate legal advice and have elected to ignore legal advice or input from whistleblowers.

In March 2015, the Post Office wrote to the then Postal Affairs Minister stating the following:

“For those applicants who have been subject to (unclear: audio distortion) rulings, two important points need to be drawn out. Firstly, we will continue to consider each of these cases carefully on a case-by-case basis, even though mediation can overturn a court’s ruling.

“Secondly, as procurator, Post Office has a continuing duty after prosecution has concluded to disclose immediately any information that subsequently comes to light which might undermine its prosecution case or support the case of the Defendant. Having now completed its reinvestigation of each of the cases, Post Office has found no reason to conclude that any of original prosecution was unsafe. Applicants remain able pursue the normal legal avenues open to them to appeal the court’s ruling, with any further material disclosed to them, including that produced through the scheme.”

The NFSP urges the Inquiry to explore the documentation and conclusions of the Post Office in this regard to find out the extent of the internal investigation, who conducted the investigation and what led them to conclude that the original prosecutions were safe.

The question has to be asked in relation to whether Post Office Corporate followed the advice of their legal teams or whether the legal teams had to fit with the corporate strategy. In other words, what drove the end result? The victims need to know whether Post Office senior management acted independently of the board or by its instruction.

The NFSP also suggests the Inquiry explores, as far as possible, the nature of independent legal advice sought by individual judges involved in Horizon-related cases. As a lay person, the questions I keep asking myself is: can this happen again and can we have confidence in the criminal justice system?

The next critical consideration is the conduct of the Post Office during the group litigation. The NFSP believes, an exploration of the Post Office’s behaviour in relation to the GLO Bates v Post Office is fundamental to the Inquiry. There will be a (unclear: audio disruption) of qualified stakeholders responding to this question and myself. However, from our perspective, it is that the Inquiry’s Terms of Reference do not permit an investigation of the conduct of the GLO and this should be updated to ensure they do permit such an investigation. The Inquiry should explore the extent to which the Post Office’s GLO strategy was to turn the proceedings into a war of attrition that it was better equipped to survive than the Claimants.

If the question is whether the strategy of the Post Office through the GLO was to ensure that the victims remained guilty, then those responsible have to be held to account. Therefore, it is imperative that the Inquiry investigates the conduct of the Post Office via the group litigation.

There is a pattern over the years by Post Office that is sought to prevent what has now been proven about the reliability of Horizon, such as remote access to branch accounts. This has resulted in a time taken to reach the current situation being elongated to the point that the costs incurred by those effected have escalated.

This is resulted in a significant proportion of the agreed compensation package being taken up by litigation costs. Therefore, the compensation that filtered down to the Claimants was so little in many cases it did not cover their losses and left them further aggrieved.

One of the Terms of Reference of the Inquiry is to assess whether Post Office Limited has learned the lessons from the criticism by Mr Justice Fraser. In essence, can the leopard change its spots? If those responsible for the GLO strategy remain in post, is it possible for the relationship with those who own and operate the Post Office network to be reset?

As chief executive of the NFSP, my focus is very much on this point, as my role is to serve the interests of my colleagues who have invested so much of who they are beyond the financial investment into this network and their communities. Therefore, this much-needed change of culture within the Post Office is paramount to the relationship going forward. No longer can they act in an arbitrary, irrational or capricious manner. They must act now within the manner of good faith. This includes dealing with the NFSP as the official recognised representative body of postmasters.

Turning to the respective divergences across the United Kingdom, the NFSP is particularly aware of considerations relating to the legal process in Scotland, in that private prosecutions cannot be brought. Therefore, we believe the Inquiry should explore the nature of any evidence provided to the Procurator Fiscal in Horizon-related cases. Other than this, we are not aware of any difference in the approach of the Post Office towards postmasters over the GLO period in question.

In conclusion, there are a number of points the NFSP would wish the Inquiry to consider. It is estimated that the cost of the scandal to (unclear: audio interference).

When I meet people socially and they ask me what I do, once I describe my role and who I work for, the usual response is one of empathy towards the victims who are now receiving justice, but it is usually followed by a statement along the lines of “these scoundrels at the Post Office”. If the public perception towards the Post Office is so negative, then whoever is responsible for the reputational damage to the company as a result of the strategy through GLO must be held to account.

I want to make it clear that there are some lovely people who work for the Post Office and who care passionately about what it is supposed to stand for. It is unfair for their reputations to be tarnished because of the past and recent actions of others. In recent snap poll on our Facebook page, I asked colleagues a question: the Post Office are making a great deal of “We’re Stronger Together” via postmaster consultations but do you feel that you are being listened to? Not a single colleague responded outlining that they are feeling listened to today.

Quite simply, can postmasters around the country ever have faith in the resetting of the relationship between Post Office and postmasters if those who set and those who funded the GLO strategy remain in post.

The Terms of reference of the Inquiry is not only to consider the past but also to look to the future. There are occasions in business when those who are making decisions are so far removed from the decisions they make that it makes their decisions null and void. I doubt many people on the board have ever sold a stamp or worked behind the counter of a Post Office. Therefore, one aspect to improve things is inclusion of two postmaster non-executive directors to the board, something the NFSP campaigned for.

However, to truly reset the relationship, then the recommendation from the Inquiry could be a group of interested parties acting as trustees. This would include Government representative bodies, such as Unite, who are the legitimate representative body of management employees in Post Office, the CWU as legitimate representative body of non-management employees of the Post Office, and the NFSP, who are the legitimate representative for postmasters.

In business, there is a simple axiom without customers you don’t have a business. Therefore, included within this group of trustees should be consumer representatives such as Citizens Advice, Age UK or the REAL Services Network, et cetera. Together we could bring a collective experience to the decision-making of the Post Office corporate. It would also engender far greater openness and transparency within the business, something which is an absolute must going forward.

Postmasters have invested significant funding to this business and, quite simply, without our businesses, there could not, indeed, could not be a network of 11,500 Post Offices around the country. The social value of the Post Office to the British economy could be as high as £9.7 billion. Let me make it clear, that social value is not in Post Office corporate, but is what postmasters, their assistants and employees of Post Office serving behind the counter bring to the communities that they serve.

Mr Chair, the role of the criminal justice system in this scandal simply has to be considered. This may be outside the scope of this Inquiry but for the victims to truly receive the justice they are so long overdue, if this area is not looked at, then have we really learned the lesson? This is described as the biggest miscarriage of justice in British legal history. If the justice system can let so many people down over so many years, then who else could they let down? As a lay person, I have to have confidence that innocent people before the courts will be found innocent, not guilty, as the case is here.

Finally, the most important people in this are the victims. Once and for all, this Inquiry must discover what cultural problems there was within the Royal Mail Group and Post Office that meant their lives were ruined in the way they were. Too much focus has been on the Post Office after 2012 because 89 per cent of the prosecutions took place when the board of Royal Mail were set in with the culture.

Therefore, it is imperative that the former chairs and chief executives of the Royal Mail Group prior to 2012 are questioned in relation to their role of the Royal Mail Group in this scandal. As a postmaster throughout this period, I didn’t rest, just like everyone else who served behind the Post Office counter. I want the victims to know how sorry I am for them and what they have endured and how long it has taken for their names to be cleared. I know that there are those whose names are still to be cleared and I encourage them to remain strong.

I have been talking to the Scotland Criminal Case Review Commission and they are aware of over 70 cases in Scotland that they may wish to consider. At present, only eight people have come forward. If I may, Mr Chair, use this platform to encourage any former colleague in Scotland, whether postmaster, assistant or an employee of the Post Office, who believes the outcome of their case before the Scottish courts may be unsound, to please get in touch with the Scottish Criminal Case Review Commission.

Mr Chair, I know that compensation is beyond the remit of the Inquiry but these victims have been – these victims have to be able to restore their reputations, have all their losses refunded and be able to get on with rebuilding their lives.

Therefore, to reiterate, the NFSP hopes that today’s hearing begins a process of restoring trust in the Post Office and rebuilding the reputation of those who were so unfortunately impacted as a result. I’d like to thank you for the opportunity of putting before the Inquiry the thoughts of the NFSP and I look forward to working with the Inquiry in the future.

Thank you.

Sir Wyn Williams: Thank you, Mr Greenhow.

Now, I think the next organisation is the Communication Workers Union and we should have either Mr Ward or Mr Furey, or both, remotely and I am not quite sure which one is going to speak but let’s see where we get to.

Mr Furey: Can we you hear me, Sir Wyn? It’s Andy Furey.

Sir Wyn Williams: So, we have Mr Furey. Good morning.

Mr Furey: Good morning, everybody. Yes, it’s just myself, Sir Wyn. Dave Ward sends his apologies. He’s involved in a general conference.

The CWU has nothing further to add to the written submission that we made. We just wish to thank you for agreeing to us being Core Participants and we will be fully involved and engaged going forward, so thank you very much.

Sir Wyn Williams: Thank you. Can I just check with you have you been able to follow what’s been going on quite easily remotely?

Mr Furey: Yes, it’s worked very well and I listened very intently to everybody’s contributions, so thank you.

Sir Wyn Williams: Well, I am very glad to hear it. Thank you very much.

So on my list, at least, all the Core Participants who indicated that they may with to make submissions have now done so but if there are any other Core Participants in the room who wish to make any oral submissions then, of course, I will hear from them. So is there anyone else? Thank you.

So we move onto interested persons, and I was made aware of three interested parties or persons who may wish to speak. They were Second Sight and the possible speakers were Mr Henderson and/or Mr Warmington, and there were two other persons, Professor Moorhead and Mr Marshall.

So, first of all, let me ask, are Second Sight here? I can see you’re on the way forward. So I don’t need to ask the next question.

Submissions by Mr Henderson

(On behalf of Second Sight)

Mr Henderson: Chair, thank you for the opportunity to provide oral submissions to some of the questions you have raised. My name is Ian Henderson, I am a director of Second Sight, the forensic accountancy firm appointed to conduct an independent investigation into matters of concern related to the Horizon IT system.

I’m qualified both as a chartered accountant as an IT auditor. Also present today is Ron Warmington, the managing director of Second Sight. Ron is also a chartered accountant and additionally a certified fraud examiner.

Second Sight was appointed in July 2012 by a small group of Members of Parliament, at the request of the Justice for Subpostmasters Alliance, the JFSA. Our professional fees were paid directly by Post Office who also supported our appointment. JFSA had been pressing for some time for some form of independent inquiry over many years and had gained the support of influential MPs representing constituents who had suffered mysterious shortfalls in branch accounts. Our terms of appointment were quite clear. They included unrestricted access to documents held by Post Office, including documents subject to confidentiality and legal professional privilege, and no limitation in the scope of work deemed necessary by Second Sight.

Our work started in the summer of 2012. Initially Post Office were co-operative and appeared committed to the agreed goal to seek the truth irrespective of the consequences. As our work progressed, the attitude of Post Office changed – we understand, largely based on legal advice.

In your opening remarks, you touched on the question of legal professional privilege. Under the agreement between Second Sight and the Post Office, we are subject to a non-disclosure agreement and also terms of confidentiality. That constrains what I can say both today and also, sort of, going forward and I would ask that you consider discussing with, sort of, Post Office how Second Sight can be released from those obligations if we are fully to support this Inquiry.

We do not consider it appropriate that we express an opinion on the scope of the Inquiry as it pertains to Second Sight – we think that should come from others – but, in our view, the Inquiry should be wide-ranging and include looking at the legal advice provided to Post Office. Irrespective of what decisions are made about the scope of the Inquiry, Second Sight welcomes this Inquiry and will support it in whatever ways are considered appropriate.

Thank you very much.

Sir Wyn Williams: Thank you very much, Mr Henderson. Can I take it Mr Warmington isn’t going to speak after you or is that a false assumption on my part?

Mr Henderson: No, I think we’ve said everything that we think is appropriate at the moment.

Sir Wyn Williams: Thank you. Thank you very much.

Is Professor Moorhead – I think he’s on his way as well.

Submissions by Professor Moorhead

(As an interested party)

Professor Moorhead: Mr Chairman, thank you very much.

You asked us to say who we were, so I am a professor at Exeter University and I lead a team who have been looking at the Post Office Horizon scandal from an academic perspective and particularly a professional ethics perspective because that’s the area where I specialise.

I’ve got three points to make. Some are of general application but I will try to concentrate, given what has happened today, on BEIS’s objections. My three points are that the legal work is central to the case, that you need to concentrate on it partly for practical and evidential reasons, and the third point would be that it is perfectly feasible to do this.

Let me start briefly with the first argument: centrality. As we set out in our submissions, and our working papers, we think a detailed understanding of the Second Sight investigations, the role of legal advice on shortfall cases, both civil and criminal, and the conduct of the Bates litigation are fundamental, both to understanding the harms arising from the Horizon system but also the culture of Post Office and possibly BEIS, and possibly Fujitsu.

We don’t think there can be any argument that Horizon harms directly arose from the way legal work was managed and conducted. People were threatened, sued, fired and prosecuted via partly or wholly legal work. When Post Office, and Horizon in particular, came under scrutiny, denials, non-disclosure and delay were enabled at least in part by legal work.

At least as much as, probably more so, than the software errors themselves, the legal work was the harm visited on the subpostmasters and the legal work supported or failed to challenge the corporate governance failures that mark this scandal so profoundly.

You will be aware that we say that some of that work was probably done incompetently or unethically, in our view. Certainly, there are serious questions that need to be looked at. That stone needs looking at. If I can put it in very basic terms, it may be that management asked the lawyers to make some of these problems go away or it may be the lawyers came to management and said we think we can help make these problems go away, but those are not sorts of issues that you need to look at.

I said I would concentrate on the shortfall cases, the civil and criminal cases, given BEIS’s objection, and I’ll turn then to my second point, which is about practicalities and evidence. I think the point is the Inquiry cannot accurately assess with reliable evidence what actually happened during the period of enforcement of debts and prosecutions, and they can’t look – you can’t look at why it happened without looking at individual cases.

We know from the Hamilton and Bates judgments that shortfalls were pursued oppressively, prosecutions were pursued unconscionably and the safety of those convictions was considered or reviewed, it seems, inadequately. But we do not know how and by whom oppression and unconscionable approaches were put in place.

There are, of course, a range of possibilities. It may be individual bad apples providing misleading information to Post Office lawyers and others, it may be willing blindness or inappropriate group think or hubris at various levels of the organisations involved, or it may even be a more overt or conscious conspiracy.

I would like to emphasise that the Court of Appeal found in Hamilton non-disclosure was deliberate and raised the possibility – and I think they did this deliberately and very consciously, they raised the possibility of bad faith. But we do not know who did things deliberately, how they came to do that, under what influences and whether anyone was indeed acting in bad faith, who they were, if so, why they were doing so, under what influences, and so on.

How can the Inquiry examine the whos, whys and how of this, sir, if not in large part through considering individual cases? I can’t see how it can be done.

Where there are records, individual cases are likely to be the best or one of the best sources on what actually happened on the ground. Legal advice, action and supervision, or quite often, perhaps, its absence, will be highly relevant, as will the facts and assumptions on which legal action was based. The patterns of behaviour should be evident.

Your alternative would be to rely on policy documents and high level or general explanations from witnesses. These are almost bound to be somewhat presentational, even without what Mr Justice Fraser, in the Bates cases, called a PR-driven approach to evidence.

It is especially hard, I think, to imagine another approach to collecting meaningful and reliable evidence, given the time period the Inquiry must cover and the fallibility of memory that faces all such investigations. How, for instance, is the Inquiry going to examine lawyers or managers on charging pleas, disclosure and post-conviction review without looking at individual cases? The Inquiry might, with very co-operative witnesses who can remember absolutely everything from that time, get somewhere but common judicial practice – and here, sir, I’m thinking about guidance in the case of Guessmin – common practice seems to drive you in the direction of looking at the documentary detail. This would be so, even if the Inquiry were not looking at what looks like serious misconduct. The Inquiry simply has to be across that detail.

So let me turn then to my third point, feasibility. Now, I recognise the size the task that faces the Inquiry and the timescale. It does it look extremely challenging to my naive eye. But I think also getting this right is absolutely imperative. There cannot be a situation where key elements of the scandal are left out for reasons of expedience. We do not want this to be like Hillsborough, where issues fester, are unresolved and, even after multiple tries, are inadequately dealt with. There needs to be a full, comprehensive and convincing account of all the key dimensions of the case, and I repeat here, we’re not talking about something peripheral, we’re talking about something absolutely central.

Nor do I see this – and, again, this may be my naivety – as a particularly difficult issue in practical terms. The time this takes will depend largely on how much can be done through analysing documents in the back office, if you like, then putting emerging patterns and representative points from individual cases to those decision-makers, and lawyers and others within Post Office and other organisations who give evidence.

Much of this work can be done outside of but in preparation for hearings. With proper resourcing, this should be capable of being done efficiently and effectively.

The matter of legal professional privilege has been raised. I would say Post Office, along with almost everybody else who has spoken today, Post Office and Fujitsu should waive this, morally. I don’t see how they can come to the Inquiry and claim to be co-operating without doing so. Given the problems exposed, including the conduct of legal work to date, those problems would include the abuse of privilege. I do not see how they can come and say “Well, we’re not sure about privilege”.

Also, I would certainly argue privilege has been effectively lost in large part. Their confidentiality, if you like, has been punched full of holes over recent months. Even if I am wrong about that, there’s a strong prima facie case for saying crime fraud exception or, as it’s more accurately described, iniquity is likely to vitiate privilege here. Iniquity is evident in abundance, including in the litigation and prosecution of shortfall cases, as well as far more recently.

I would add here too the need to lift any extant NDAs and similar agreements which will impact on the evidence of witnesses. We heard just from Ian Henderson but I suspect there are others to whom that applies.

Sir, as well as being the best evidence of what was done on shortfall cases and prosecutions, the best evidence of the nature of instructions given, the advice given, and its implementation, I would expect a review of cases to yield contemporaneous evidence of what was influencing the process. Now, we’ve seen from the court papers suggestions of ideas such as protecting public money and concerns about adverse publicity and the impact on disclosure in legal cases impacting on decisions in those cases. We may see other similar things if we take a deeper look at the cases.

Looking at these cases will tell us something also of cases which were unsuccessfully prosecuted, something we haven’t talked about: why they were dealt with; why they were different; how those losses were understood within Post Office. It may be possible to relate good and bad outcomes to particular individuals in Post Office, perhaps to particular solicitors’ firms prosecuting or even to counsel advising, as well as to the structures and policies within Post Office.

The detail and variation within individual cases is likely to be highly illuminating as to what caused, contributed to, exacerbated or reduced, sometimes, poor practices. Nor should we rule out the possibility of other influences being revealed. It seem likely to me that Government oversight would explicitly and directly influence specific individual cases but it may well be seen to have an impact at a general level and show up in some of those cases, and the key instances when Horizon was under critical challenge, it may have been that oversight interest became more visible or somehow percolated down to those individual cases.

Sir, I hope too that the evidence taken from the subpostmasters and their colleagues explores how they experienced threats and legal process. It seems, to me, very important that you hear, as chair of the Inquiry, how lawyers’ tactics are experienced by individuals. I’ve seen in another area where I’ve worked, during Select Committee hearings on non-disclosure agreements, how differently lawyers and lay people experience simple things like lawyers’ letters. They can have a really profound impact on individuals and I hope that’s something that you will hear something about when you hear evidence.

One further issue of practicality, I think it was one of the early submissions, Mr Stein suggested that it may be possible to deal with issues by way of sampling. If the Inquiry was to go in that direction, there are obvious cases that merit a close look, Seema Misra’s case, Jo Hamilton’s case, Lee Castleton’s case, as cause célèbres, if you like, key cases that went horribly wrong. I think it’s also really important in that sample to look at cases which did not proceed to trial or where trials were aborted or lost, for instance.

As I understand, there are about 130 or so of these cases. Very little is known about them and they are important. How, for instance, were losses – information about losses shared within the organisation? What was learnt from them? How did losses affect future instructions in case handling: if you lost a case what happened next, if you are a firm, for instance?

Sampling should ensure a good spread of the different solicitors firms prosecuting – I understand there might have been six but I may be wrong about that – and perhaps also counsel representing such cases, as well as looking at whether who ran cases internally impacted on outcomes or approach.

There is one small matter before I start to draw to a close. If I can quickly but I hope not too superficially, dismiss BEIS’s suggestion that the victims in individual cases can get this kind of accountability through pursuing cases of negligence or professional conduct complaints. I think that response is unreal. They are not likely to get evidential satisfaction through those routes but I also think it’s extraordinarily unkind, I think it hard-hearted and a cynical person who would say to these people “Go to the law again if you want to find out why you were so badly wronged”. I find it quite extraordinary that they have suggested that.

So I would like to end by contextualising my plea to look in depth at the lawyering because it not, of course, just about that lawyering. I said in essence Horizon is not solely or even mainly a computing scandal, it is also a lawyering scandal, but it is, above all, a corporate governance scandal. You will have seen a submission from a group of general counsel and others with great practical knowledge of lawyering and governance. That submission came about after they signed up for a whole day and one night with me talking about the Post Office case.

You may wonder why they took on this penance and reason why they did that was they see the same governance problems evident in the Post Office case in other board rooms around the country where they have worked or with people with whom they have worked. There is actually, I think, a critical public interest in this issue above and beyond the immediate much more serious, obviously, injustices faced by the subpostmasters, subpostmistresses and their colleagues.

So I would say the Inquiry needs to understand what lawyers did but also how they were led, what the incentives and relationships and culture were. Ultimately lawyers may have contributed to that culture but it is not likely they were solely or mainly responsible for it. There is, if I can give an example, one potentially telling moment where, when dealing with remote access, Paula Vennells says, and it’s in the Bates case, in effect, she needs to be able to say that remote access is impossible.

The willingness within the organisation then to have facts fit preferences comes through. It doesn’t actually come from lawyers there but that attitude may have come from lawyers or it may well have been, if you like, a directive of management to see things that way.

Let me end with another example. Mrs Vennells says in a letter to an MP, now a Government minister, as it happens, in October 2015, she says this:

“Through our own work and that of Second Sight, we have found nothing to suggest that in criminal cases any conviction is unsafe. We have found nothing to suggest that in criminal cases any conviction is unsafe.”

That statement is, we can see now from Hamilton, when that was palpably false, whether Mrs Vennells knew it or not. It is a statement made by the senior manager of Post Office and very likely indeed made with the assistance of lawyers, directly through reviewing or drafting the letter or indirectly through previous advice being used or perhaps abused here. Lawyers and managers were involved and responsible. Lawyers and managers are mutually responsible, if you like, for this irresponsibility. You must investigate them both if the lessons are to be learnt and similar problems are not to occur again.

They cannot hide behind privilege while shifting blame. Both the managers and the lawyers need to be held accountable for any wrongs they have done and that requires looking at the legal advice along with everything else.

If I can end by putting the case metaphorically for a moment, considering the Horizon saga without considering the lawyering, without considering privileged evidence or allegedly privileged evidence would be a bit like considering Watergate without considering the White House tapes; essential, telling, perhaps vital, information will be missing. The abuses of power, the injustice, who did it and why, will not be properly understood. Sir, to discharge the Inquiry’s remit, you must do the equivalent of listening to those tapes. Thank you very much.

Sir Wyn Williams: Thank you very much, professor.

Mr Marshall? I don’t think Mr Marshall is remote. He wasn’t intended to be remote and he hasn’t arrived as yet?

(Off-microphone comments)

Sir Wyn Williams: All right. Well, I think we’ve reached the end of my list. So I will now ask is there any other interested person in the room who wishes to address me about the four themes? You will all appreciate that occasionally we’ve strayed from the four themes but, nonetheless, if anyone wishes to return to the four themes, I would be grateful if they would say now.

Perhaps I should turn now to Mr Beer, who has sat quietly throughout this, he is sitting to my left – he is leading Counsel to the Inquiry – and just ask him whether he wishes to say anything in the light of what’s gone on this morning.

Mr Beer: Sir, thank you very much for your invitation. No, your counsel team has no submissions to make on the present issues. Thank you.

Sir Wyn Williams: Right. Well, it seems to me therefore that we’ve reached the end of the oral submissions. I’m not going to formally close the proceedings yet because I want to give a little more clarity about how I might approach the issue of legal professional privilege, specifically in relation to Mr Stein’s request that I hold a public hearing if there are any controversial issues to be determined. So I’m going to think about that for a few minutes.

By my computerised time, it’s around about 12.30. So I would ask you to have a 15-minute break, I’ll think about that, and then I’ll come in and say whatever it is I propose to say and, at that point, we will probably call it a day, all right.

So thank you for your patience with everything and I hope this morning hasn’t been less exciting than you thought, shall we say.

(12.30 pm)

(A short break)

(12.45 pm)

Sir Wyn Williams: I think we now have Mr Marshall. Would you like to come forward, please?

Ladies and gentlemen, I think the plan is that we will hear Mr Marshall’s submissions and then we won’t take a lunch break, we’ll hear what he has to say and then I’ll make whatever announcement I propose to make and then we’ll wrap it up, all right.

So, over to you, Mr Marshall.

Submissions by Mr Marshall

(As an interested party)

Mr Marshall: First of all, thank you, sir, for hearing me. I’m slightly surprised at the speed with which matters have proceeded this morning and I can say that it’s not the first time in this case that I’ve been surprised.

I’m going to take – because I’m conscious of time and indeed the time of the morning if we can still say that, I’m going to take my submissions, I had four, and I’m going to take the third and fourth, which I believe are particularly important, first, then my third and, if possible, and there’s time, the first.

Under the rubric of withholding material necessary for an appeal, in a witness statement made by him in October 2010, filed for Mrs Misra’s criminal trial, Mr Gareth Jenkins, a very senior Fujitsu computer expert and architect of the Horizon system stated, amongst many other things, two facts. First, he stated and I quote:

“Any transaction that is recorded on Horizon must be authorised by a user of the Horizon system who is taking responsibility for the impact of such transaction on the branch’s accounts.”

Secondly, he said this, and I quote:

“There are no cases where external systems can manipulate the branch’s accounts without users in the branch being aware and authorising the transactions.”

Both those statements were, as a matter of fact, wrong. Their falsity is established by Mr Justice Fraser’s Horizon Issues December 2019 judgment. He held that for a number of years Fujitsu and the Post Office routinely accessed branch accounts without the knowledge of postmasters, not only were records not maintained of what was done in routinely accessing branch accounts, no records were maintained of branch accounts being accessed at all. That, of course, facilitated denial.

The denial came unstuck when Mr Richard Roll, a former Fujitsu software engineer, gave evidence in a second witness statement shortly before the Horizon Issues trial. Mr Roll was a former defence systems software engineer and he confirmed that, from the outset, super access rights were exercised and data at branch accounts was manipulated in a way not identifiable by a postmaster.

The fact of remote access attracts only a single sentence in the Court of Appeal’s April 2021 judgment but its importance is great. Its importance was certainly recognised by Mrs Vennells. Implications of the Post Office having before 2019 accepted that access to branch accounts was possible without postmaster authority or knowledge, and manipulation of those accounts both possible and also happened as a fact, without any record having been kept by Fujitsu or the Post Office, is too obvious to state.

That fact alone would have rendered every conviction over the relevant period arguably unsafe without more and, in any event, would have afforded an obvious defence both to civil claims and criminal prosecutions.

Why do I refer to this? I do so for what appear to me to be two important reasons. It is supplementary to the brief written submission I made in connection with the role of Second Sight. In appendix 2 to their 2013 interim report, Second Sight refer to a postmaster in 2008 at Fujitsu’s Bracknell headquarters having observed remote access to Post Office branch terminal taking place and an entry being made in the account that was then reversed. That was recorded as being contrary to the Post Office’s assertions and assurances that remote access to Horizon branch accounts was not possible.

Second Sight further record that in December 2010, Mr Edward Davey MP, the then Minister for Postal Affairs, had stated that Post Office also categorically state that there is no remote access to the system or to any individual branch terminals which would allow accounting records to be manipulated in any way.

Importantly, for present purposes, Second Sight conclude appendix 2 with a statement:

“We are left with a conflict of evidence on this issue.”

That is important for two reasons. The first reason is that, over the weekend, I reviewed the transcript of Mrs Misra’s criminal trial. Although Mr Jenkins had made a witness statement denying the possibility of remote access, the issue of remote access appears to have formed no part of his oral evidence and he seems not to have been cross-examined on the point, at least so far as my search strings were able to pick up. This suggests that Mr Jenkins’ evidence on that point was accepted. The reason, presumably, Mr Jenkins’ written evidence was not challenged is that there was no material available to Mrs Misra’s legal team upon which to do so.

Mr Simon Clarke undertook a review of Mrs Misra’s criminal prosecution, I believe, in early 2014. The stated purpose of his review of Mrs Misra’s prosecution was very limited. It was to consider whether the Second Sight report or the Helen Rose reports should be disclosed to Mrs Misra. The extraordinary thing about Mr Clarke’s review is that Mr Clarke was not provided with a Post Office’s prosecution file. In his advice, he records that he was only provided with the transcripts of Mrs Misra’s trial.

It follows from that that Mr Clarke will not have seen Mr Jenkins’ witness statements, in which he denied that remote access to Horizon branch accounts was possible. He would not, therefore, have identified that, whilst Mr Jenkins is unqualified in his written evidence that remote access to branch accounts without postmaster knowledge and approval was not possible, that evidence went unchallenged in his oral evidence. But Second Sight, in their interim report in 2013, disclosure of which was the whole point of the question Mr Clarke is specifically considering, records that they are left with a conflict of evidence on the point.

Given the emergence of the shredding advice, shortly before the Court of Appeal hearing in March this year, one is bound to enquire as to whether Mr Clarke had intentionally withheld from him the prosecution file. I have also referred to this in the context of Second Sight’s request for prosecution files that were refused, it seems, by the Post Office’s general counsel, Mr Aujard and were the subject of the Select Committee hearing the following year.

The second reason I refer to this is that the very restrictive nature of the review of at least Mrs Misra’s prosecution is not, I think, well known.

The Post Office has made much of having undertaken reviews of its prosecutions following the Clarke advice in 2013. In the light of what I have said, there is an obvious serious and substantial question of the thoroughness and completeness of those reviews.

Had the Second Sight interim report been disclosed to Mrs Misra in 2013 or 2014 it would have put any competent lawyer on energetic enquiry.

The only additional thing I shall say on this point is that Mr Clarke, in early 2014, advising the Post Office against disclosing the Second Sight interim report to Mrs Misra, expressly relied upon the written advice of Mr Brian Altman QC.

The day after I received Mr Clarke’s advice in November 2020, I raised with Mr Altman the question as to whether, given an issue in the appeals with the adequacy of the disclosure given by the Post Office and that he appeared to have advised the Post Office on its disclosure obligations in 2013, there might be an issue of an apparent conflict of interest.

My fourth submission, but second in order now, is concerned with the presumption of the correctness of electronic computer evidence, sometimes described as the presumption of reliability. What I have to say on my fourth point is in brief amplification of my letter of 1 November 2021. What I shall say is a spokesman for the group of us who responded last year to the invitation to me by the Under Secretary of State for Justice to submit to the Ministry of Justice a paper on the issue of disclosure of evidence derived from computers.

Notable among the contributors for this purpose are Professor Peter Bernard Ladkin, Professor Martin Newby, Professor Harold Thimbleby and Professor Martin Thomas CBE, all expert in computer technology and software engineering. It is not necessary to repeat the point about the presumption of the reliability of evidence derived from computers that I briefly touch on in my letter.

We believe that it is an important issue for this Inquiry. A change in the law from 2001 is likely, we believe, to have influenced the Post Office’s decision to prosecute and litigate and also the conduct of those prosecutions and civil claims. We know, and Dr Murdoch has adverted to this, that the Post Office and its solicitors were active in the law commission reports that resulted in the statutory provisions and protections under the Civil Evidence Act and the Police and Criminal Evidence Act 1984 being repealed. It is perhaps unnecessary to point out that material produced from a computer is typically hearsay, conventionally hearsay evidence is treated with caution by courts for well-known reasons.

The way this was dealt with before the Law Commission reforms was that there was a statutory requirement for direct evidence that the source of the evidence in question, that is to say the computer, was working reliably at the material time.

That ceased to be a requirement in criminal trials from 2001. That date more or less coincides with the computerisation of Post Office branch accounts. It also happens to coincide with the timeline of prosecutions, notably of Tracy Felstead who was prosecuted in 2001 and convicted in 2002.

It is not widely understood outside the software profession that only the smallest and least complex computer program can be treated exhaustively. The limit is probably 100 lines of well designed and carefully written program. Even such a 100-line program might require very many thousands of tests to eliminate every possible error, that is to say “bug”.

The consequence of this is that it is certain that the vast majority of software in use today contains many hundreds or thousands of errors. This is uncontroversial amongst computer scientists, though it seems surprising or incredible to the general public and even to many programmers, also, no doubt, to some judges.

Many of these errors will be latent. They will only cause the software to malfunction under rarely occurring circumstances. One analysis by IBM reported that a large number of the errors in their systems were causing malfunctions for users much less often than once a year. Horizon was a suite of programs comprised of probably millions of lines of computer program. It undoubtedly contained thousands of errors, most of which would never cause a malfunction in the entire time Horizon was in use. That is why Horizon could process huge numbers of transactions correctly and yet still have caused apparent shortfalls at hundreds of sub post offices.

The presumption of reliability or, if you will, presumption of correctness of computer evidence was introduced by default in 2001 for practical reasons. Without the presumption, it was widely considered that the cost and time involved in the extensive disclosure of technical details of software and expert testimony made reliance upon electronic computer evidence in legal proceedings increasingly impractical and, it was thought, unnecessarily expensive.

But as the Court of Appeal in its April 2021 judgment observes, the effect of the presumption can make it, in practice, impossible for a defendant to challenge incorrect electronic evidence and may have the unintended consequence of appearing to reverse the burden of proof. That may result in a miscarriage of justice, even though this may not be common because much computer-derived evidence may either be not contested or may be separately corroborated. Everyday examples are breathalysers being followed up with a urine test or a speed camera radar being supported by a pair of timestamped photographs showing how the vehicle has moved are over a known period of time.

In our view, courts should treat electronic computer-derived evidence with considerable caution where central to a case and uncorroborated, as typically it was in the postmaster prosecutions. Disclosure should be required that shows, as a minimum, three things: firstly, that the software producing the evidence has been developed and maintained to high professional standards; secondly, that records are kept of reported errors, and also the steps taken to identify and resolve those errors; thirdly, that the staff responsible for operating, supporting and updating the software and its databases or other records could not, and in any event have not, affected the evidence before the court.

As to the last of these, it is always the case that such support staff, for maintain systems of the kind that Horizon is, have privileged access to the systems (sometimes called “super user access rights”). These rights in principle allow them to modify the systems in any way. Without such access, it would be impossible to take security backups and to restore them, to respond to cyber security problems, to recover from hardware failures, and to carry out the many other routine functions of system support.

For evidential material derived from computers to be reliable, two things in this regard are necessary. That’s the last point. Firstly, privileged access rights must be tightly controlled and, secondly, the uses made of it must be recorded securely. Where a system has been professionally developed and managed, the evidence documenting compliance with those requirements will be readily available and can be disclosed without much cost or delay.

We consider that the refusal of judges to order disclosure by the Post Office appears to us to have materially contributed to the miscarriages of justice that the Inquiry is examining. It needs, I think, to be said that the Post Office scandal, if that is what it may be described as, is not least the result of widespread legal and court failure.

A final point on this topic is that the Horizon network was not permanently connected. A feature of Horizon’s design was that a postmaster’s terminal was not permanently connected to the branch computer and the branch computer was not permanently connected to the Fujitsu main servers. Permanent connection would have been prohibitively expensive but a major cause of data corruption and loss was connectivity issues.

The point is important: there is a distinction to be drawn, as is common in system design, between a system that is good enough and one that is perfect. Horizon might, on one analysis, have been good enough even though bugs in software and connection failures caused intermittent failures and shortfalls. A few thousand pounds by way of shortfalls was marginal from the Post Office’s perspective: from a postmaster’s perspective, a shortfall of a few thousand pounds was not marginal. A fundamental flaw in the Post Office’s business model, I suggest, was that its contract with postmasters automatically made postmasters liable for shortfalls that were, in fact, on one analysis, the inevitable by-product of Horizon being a less than perfect system; that is to say, one that was prone to error and throwing up shortfalls but otherwise good enough.

Like all contracts, the Post Office’s contract with its postmasters was concerned with the allocation of risk. What should never have happened is that, in effect, the postmaster contract transferred the technical and commercial risk of bugs and error to postmasters. It is overwhelmingly likely that none of them recognised this at the time of contracting. It is strongly arguable that the technical risk was one that, in fairness, and if commercially sensible, should have remained distributed between Fujitsu and the Post Office itself. It will be recalled that Mr Justice Fraser found the Post Office contracts with its postmasters oppressive.

One is tempted to the view that somewhere at some time a lawyer engaged in drafting the postmaster contracts might have felt some satisfaction in transferring known technical risk in Horizon to an unsuspecting postmaster. In 1999, there were indeed known technical risks. The incidence of those risks was what became critical and resulted in unjustified criminal prosecutions and civil claims.

I turn now to what was originally my second, now my third, point. I would like to address very briefly the point about delay which engages with the Post Office’s approach to both the Bates litigation and what I would characterise its general aggressive strategy of denial. Article 6(1) of the European Convention for Protection of Human Rights and Fundamental Freedoms provides that everyone is entitled to a fair public hearing within a reasonable time by an independent and impartial tribunal established by law. Violation of the Article 6 right is separate from the issue of whether the trial was fair or an abuse of the process.

In Attorney General’s Reference No. 2 of 2001 [2003] UKHL 68, Lord Rodger had this to say about the Article 6 and its violation. This is at paragraph 20. He refers to the irretrievable harm caused by delay. I will just read some of the paragraph. I hope I’m not taking it too much out of context:

“By definition, the undue delay with its harmful effects occurs by the time the hearing comes to an end. The relevant authorities cannot remedy the situation and give the defendant his due by holding a fresh hearing. That could only involve still greater delay, prolonging the disruption to the defendant’s life and so exacerbating the violation of his Convention right. The fact that this particular breach of Article 6(1) cannot be cured by holding a fresh hearing is not just some quirk of the Convention that happens to put the relevant authorities in a particularly awkward position. On the contrary, it stems from the very nature of the wrong which the guarantee is designed to counteract. If the responsible authorities cannot go back and start again, neither can the defendant. For both sides time marches on. When the authorities delay unreasonably, months or years of the defendant’s life are blighted. He cannot have them over again. They are gone forever.

“By signing up to Article 6(1), States undertake to avoid inflicting this kind of harm. Since the harm is irretrievable, the European Court of Human Rights is correct to regard this right as being of ‘extreme importance’ for the proper administration of justice.”

The authority for that is Guincho v Portugal [1984] 7 EHR 223 at paragraph 38. Despite its importance, this violation (that is, the Article 6 violation) has not yet been referred to, still less addressed.

The authorities confirm that the relevant period begins when a person is charged and ends with a conviction or acquittal, even if this is reached on appeal. The authority for that is Wemhoff v Germany, as applied by the House of Lords in Dyer v Watson [2004] 1 AC 379.

In Dyer, Lord Bingham – I think that should say “Supreme Court”. In Dyer, Lord Bingham said that however complex and difficult a case, there comes a time when the period of delay becomes excessive and unacceptable. The European Court has stated that the burden of coming forward with explanation for inordinate delay is on the prosecuting authorities. The authority for that is Eckle v Federal Republic of Germany, 5 EHRR 1, 29, paragraph 80. Lord Bingham, in Dyer, at paragraph 52 stated:

“It is necessary for the contracting States to explain and justify any lapse of time which appears to be excessive. The State is responsible for delays attributable to the prosecution.”

Authority for that is Orchin v UK, 6 EHRR 391.

Why are these things important? I suggest that they are important for two reasons. The first is that Tracey Felstead, Janet Skinner and Seema Misra, my former clients, had to wait a combined total of 44 years for their convictions to be quashed. Is that period excessive and unreasonable? It plainly is. It follows that their Article 6 rights that are guaranteed by the state have been violated.

Given that these rights are rights that are guaranteed and that have been violated, is it not time that this is both acknowledged and, more importantly, explained? Dyer is authority for the proposition that the State is to explain the delay. Tracy Felstead, Janet Skinner and Seema Misra, by law, are entitled to that acknowledgement and an explanation.

In principle, the Court of Appeal should have addressed this issue. What I have referred to just now was cited in my written submissions for the court filed in December 2020. It seems that the Court of Appeal may not have allocated sufficient time to deal with this and it seems to have been concerned to restrict the scope of its judgment.

As to the question of why the appeals took so long to be heard and the convictions quashed (that is to say the unreasonable delay, inordinate and unreasonable delay), I believe the reason is very simple. Delay is attributable to the Post Office’s strategy of what can be called aggressive delay. It had two elements: the first was denial that there was a problem with Horizon; the second was denial to those the Post Office had prosecuted, or otherwise made claims against, of material that might have enabled an appeal long before 2021.

If you want an example of aggressive denial, there perhaps is no better illustration of that than the Post Office’s response to the request for disclosure of the Known Error Log in the Horizon Issues trial, which Mr Justice Fraser treats at some length. He notes that in correspondence the Post Office’s solicitors initially denied the possibility of the existence of the Known Error Log. When it was found to exist, it was described as being irrelevant, in quotes, “a red herring”, and when that failed and it was found to be likely to be relevant, the Post Office’s position was that it was not in their possession and power to disclose, it was Fujitsu’s. Mr Justice Fraser of course pointed out that Post Office was contractually entitled to it. But one has to say that that position and what became the Horizon Issues trial, the fundamental and most important sequence of documents founding Mr Justice Fraser’s judgment was, it’s fair to say, extraordinary.

The last thing I would say –

Sir Wyn Williams: Mr Marshall, can I say that you reasonably exceeded the 20 minutes allowed to you, so would you just take five minutes to deal with the last point, please.

Mr Marshall: I will try and deal with it in less time than that, and I am sorry for overrunning.

I wanted to pay tribute to my clients and their fortitude and resilience. You’ve probably heard already about the human impact of what happened. This is not really ultimately about a failure of a computer system, the Horizon computer system, it is the consequence of prosecutions and civil claims brought against people who were innocent of wrongdoing or, indeed, breach of contract.

Seema Misra was convicted of theft at the age of 19 in 2002. Her conviction was quashed in 2021. Immediately before the Court of Appeal hearing in November, she suffered a complete neurological collapse and was admitted to hospital with a suspected stroke. In fact, it was the cumulative consequence of 20 years of anxiety and depression.

Janet Skinner was convicted in 2007 of theft. She had pleaded guilty to false accounting in the assurance, or expectation at least, that she would be spared a custodial sentence. She was not. A year after she was – I think a year after she was released from prison, she was subject to a further demand from the Post Office for £11,000. She was again arraigned before the court. She, in fact, was exonerated on that occasion, but she suffered a complete physiological collapse, was admitted to hospital with apparent paralysis. She was in hospital for several months.

When I spoke to her about 18 months ago, I could hear a child playing in the background and she told me that it was her grandchild. I asked her whether she was playing with her grandchild. She said no, because her mobility still remained so severely impaired.

Seema Misra, as is well known, was prosecuted and convicted and sentenced to 15 months’ imprisonment when eight weeks pregnant in 2010. It was her son’s 10th birthday on [redacted]. He’s about to be 21. She has for the first time in ten years been able to celebrate Diwali last week without the burden of a conviction for theft.

I could go on. I’ll just mention Mr Lee Castleton. He was subject to a civil claim of £26,000. The claim against him was upheld. The Post Office claimed costs of £321,000 against him. He was bankrupted. He still has a trustee. The consequences on him and his family of that experience were devastating. He was reduced to penury. More importantly, his daughter suffered a very, very serious nervous illness from which she hasn’t recovered.

Thank you.

Sir Wyn Williams: Thank you, Mr Marshall. Then I think that does bring to an end the oral submissions. Thank you all very much for attending. I have reflected upon what has been said about the issue of legal professional privilege and in the course of the next day or so, I will publish a written statement in which I set out what steps may need to be taken in the absence of agreement in order to determine it.

I also say now that if I consider it to be necessary, I will hold a further preliminary hearing. I will consider it necessary if in my opinion there are properly arguable issues which would benefit from an oral hearing. That oral hearing will take place on a date or dates between 6 December and 17 December so all those who are likely to be involved in any such oral hearing should bear that very much in mind as happened with this hearing, we will try to accommodate the people who wish to be here but obviously there are many potential parties and inevitably those dates may be more difficult for some than others.

But it is crucial, in my opinion, as I said at the start, that this issue is determined one way or the other this year and therefore we have to proceed with that timetable.

So thank you very much and I have no doubt that I will see many of you very frequently over the course of the next year.

(1.21 pm)

(The hearing adjourned)