6 July 2023
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(10.00 am)
Administrative Discussion
Mr Beer: Good morning, sir. Can you see and hear me?
Sir Wyn Williams: I can, yes.
Mr Beer: Sir, you’ll recall that Gareth Jenkins was previously scheduled to give evidence on 4 and 5 May this year but, very shortly before that time, he indicated that he had taken the decision not to rely on the privilege against self-incrimination and would accordingly provide the Inquiry with a witness statement and answer the questions that the Inquiry had of him. As that happened very shortly before Mr Jenkins was due to give oral evidence, his evidence had to be postponed from 4 and 5 May to allow time for the provision and then the disclosure of his witness statement.
Mr Jenkins duly provided a witness statement, it’s 75 pages long, addressing the Inquiry’s Phase 3 questions. His Phase 3 oral evidence was therefore rescheduled for today and tomorrow with him returning to the Inquiry after the summer break to give evidence about Phase 4 issues.
Events have happened in the last two days which mean that it is now not appropriate for Mr Jenkins to be called to give evidence today and tomorrow. Instead, his evidence will be taken on Phase 3 and Phase 4 issues after the summer break and I will explain why.
You’ll recall that in his evidence on Tuesday, Post Office’s group general counsel, Mr Ben Foat, said – and I’m summarising – that what he described as a disclosure remediation process was being undertaken by the Post Office following the revelation of two failings in Post Office’s disclosure: firstly, the failure to look at documents within a family to see whether those documents were responsive to the Inquiry’s disclosure requests; and, secondly, as a result of a de-duplication exercise, a failure to include within the pool of documents over which searches were undertaken, documents which would have, in fact, been responsive to our disclosure requests and which were themselves within families of other documents which were responsive to our disclosure requests.
This remediation exercise, as he called it, involved a triage process, so that documents that may be relevant to our Phase 4 witnesses and, in the case of Mr Jenkins, relevant to him in the context of Phase 3, were to be prioritised by the Post Office in the order in which witnesses are being called this week and over the next three weeks.
As I mentioned when questioning Mr Foat, this late disclosure process meant that Mr Blake was given some documents only the night before Mr Ferlinc gave evidence that related to him in some way.
The Post Office sent us seven documents the night before Mr Marsh gave evidence yesterday that related to him in some way.
At the same time, the Post Office gave us 95 documents that related to Mr Jenkins in some way that are responsive to our earlier disclosure requests from last year and ought previously to have been disclosed. The Post Office apologised to the Inquiry for sending us these documents so late.
In the time available, we have had the barest of opportunities to read and analyse these documents that relate to Mr Jenkins, less still to consider which of them should be disclosed to Core Participants, giving them a reasonable opportunity to read and to analyse them and to send their Rule 10 questions to us. Nor has it afforded any opportunity for Mr Jenkins to read and analyse the documents – he hasn’t even been given them yet – and to consider them with his own legal representatives.
Sir Wyn Williams: I should say, Mr Beer, I haven’t seen them either.
Mr Beer: No, exactly.
What we can say is that the documents contain relevant information that we would wish to ask Mr Jenkins about. They contain relevant information which Core Participants should have the opportunity to see and to formulate questions of Mr Jenkins, and which Mr Jenkins could have the opportunity to see before he enters the witness box.
One of the responsibilities of counsel to an Inquiry acting neutrally and independently is to seek to assist you in ensuring that these Inquiry proceedings are fair to all but especially are fair to the Core Participants and to witnesses. Moreover, we wish these proceedings to be conducted in a way that ensures that any conclusions which you reach in your final report, especially conclusions which are critical or damning about an individual or an organisation, are not vulnerable to attack on the grounds that the process which led to them being made was itself unfair.
There are three other dynamics relevant to the advice which I gave you, and which you have accepted, that it wouldn’t be appropriate to call Mr Jenkins now.
Firstly, as I emphasised to Mr Foat when he was giving his evidence, this Inquiry is itself investigating the late or non-provision of disclosure to others by the Post Office in a series of criminal prosecutions that lasted over a decade and the non-disclosure of documents in civil proceedings, and the unfairness that such non-disclosure had on parties and on witnesses. We, of all people, will not entertain the making of the same mistakes of the past whilst simultaneously investigating those mistakes.
Second, as is well known, Mr Jenkins is under criminal investigation by the Metropolitan Police Service for serious criminal offences relating to his role in the Horizon scandal. The evidence that he gives to this Inquiry may be used in any criminal investigation, prosecutorial decision making or in any criminal proceedings brought against him.
Thirdly, the Inquiry’s timetable can accommodate a hearing which hears evidence about Phases 3 and 4 from Mr Jenkins later in the year, a hearing that will now probably last four days or so.
I should say that, additionally, at 10.32 pm last night, the Post Office wrote to the Inquiry drawing our attention to the fact that, amongst the 95 documents that it had recently disclosed, it had recently identified that one of them was a new document that the Post Office said was “likely to be of significant interest to the Inquiry”, and it identified it to us. That was indeed amongst the documents that we ourselves had identified as being of significant interest to the Inquiry.
The letter went on, and I’m going to read it:
“Approach to de-duplication rectification exercise.
“The Post Office is conscious of the need to mitigate the potential consequences of ‘Item level de-duplication’ applied in respect of at least some of the responses to Rule 9 requests. We address now how the Post Office proposes to mitigate any implications of the evidence of Gareth Jenkins and Phase 4 generally.
“The Post Office is still developing a methodology to address this issue but, more broadly, anticipates that the approach will need to be tailored according to what is reasonable in all the circumstances, having regard to the Inquiry’s protocol on the disclosure of documents and the potential impact of the de-duplication issue in respect of each witness and/or each Rule 9 Request.
“The Post Office has made numerous enquiries with its eDiscovery provider, KPMG, as to whether they, in fact, carried out any de-duplication in respect of any documents to be reviewed for responsiveness to Rule 9 questions potentially bearing on the evidence of Gareth Jenkins, but they have been unable to confirm this in the time available.
“Therefore the Post Office has focused on family documents to duplicates of the 13 documents produced by the Post Office which exist on the Inquiry’s Core Participant platform and which are referred to by Gareth Jenkins in his second witness statement, being materials that POL’s eDiscovery provider might have excluded. There are 4,767 such documents, excluding previously produced documents. Of these documents, POL will review for responsiveness to the Inquiry’s Rule 9 Requests and/or interest to the Inquiry. This may also include documents that the Post Office has reviewed previously but not produced to the Inquiry.
“From the Post Office’s initial high-level review of 600 of the 4,767 documents, it appears that many of them are duplicative of documents that have been already reviewed. However, it has not been possible to confirm this in the time available so the Post Office will re-review any such documents. The Post Office will produce any additional documents as soon as possible and will continue to reflect on how to manage this issue as an urgent priority.”
This is, of course, grossly unsatisfactory, to be told at 10.32 pm on the night before an important witness gives evidence that there are 4,767 documents that are at least potentially relevant to a witness who is being called 11 hours and 28 minutes later, some of which might be duplicates of material already provided to the Inquiry but some of which may not.
You’ll be issuing directions today, sir, or tomorrow in the light of Mr Foat’s evidence that seek to ensure that this kind of interference by the Post Office with the work of the Inquiry does not continue to disrupt and to disturb us.
I realise that this news will be upsetting and distressing for many people, some of whom will have made arrangements to travel to the Inquiry for today and tomorrow. All I can say is that we are determined to uncover the truth, but to do so in a way that ensures fairness to all and which leads to conclusions in a report from you which are unimpeachable.
We will notify the public and Core Participants in due course when, after the summer, Mr Jenkins will give his evidence.
Sir, that’s all I intended to say this morning.
Sir, I think you’re still on mute.
Sir Wyn Williams: Sorry, Mr Beer. Thank you very much for that full and clear exposition of events which have been unfolding over the hours leading to now. I don’t propose to repeat in my own words what you have so eloquently expressed but I cannot help but express my frustration that this has happened at this time. It is a very important time for the Inquiry, and we do not need dislocation.
I express my regret to all of those, my apologies, in fact, and regret to all of those who have made special arrangements to either view or be present at today’s hearing. Clearly, the evidence which was intended to be heard was of considerable significance and of interest to very many people.
Is Mr Jenkins present in the room?
Mr Beer: No, he’s not, sir. In the time available last night, we stood him down from travelling late last night.
Sir Wyn Williams: Is he represented today?
Mr Beer: He is. Ms Dobbin is here.
Sir Wyn Williams: Well, Ms Dobbin, I wish to express my regret that Mr Jenkins has been inconvenienced in this way. Whatever role he may or may not have played in the events that we are enquiring into, no doubt giving evidence in these circumstances is of considerable strain to him and it is of a matter of regret to me that he has been inconvenienced in this way.
Ms Dobbin: I wonder if I could just say a word or two on his behalf. We understand entirely that this is not a position that you or the Inquiry would wish to be in and, of course, it’s not a position that he would wish to be in either. Right up until the 11th hour he was preparing and ready to give evidence today. But, of course, we’re driven to agree with Mr Beer that it’s intolerable and unfair to all Core Participants that a witness should be called to give evidence when there is this volume of evidence that’s outstanding and potentially relevant to them.
So, regrettable though this position is, it would obviously be unfair for Mr Jenkins to give evidence but unfair to all Core Participants in this Inquiry.
Sir Wyn Williams: Thank you, Ms Dobbin. The lawyers amongst you may well have observed that I haven’t invited any submissions about whether or not his evidence should be postponed. That is for the simple reason that what Mr Beer has told me is, in effect, incontestable. It would not be fair for him to be called in the circumstances described and, in those circumstances, no useful purpose would be served by me inviting submissions from lawyers about what has been patently obvious to me since I was told about it last night.
So the result is that there will be no evidence or no further evidence this week and we will recommence hearing evidence next Tuesday. As Mr Beer has already referred to, I intend, as quickly as I can, to issue appropriate directions to seek to regulate the future conduct of disclosure in this Inquiry, in particular disclosure by the Post Office, and I will expect that my directions are complied with literally to the letter.
Mr Beer: Thank you very much, sir.
Sir Wyn Williams: So I’ll see you all to at 10.00 on Tuesday.
Mr Beer: Yes, thank you.
(10.16 am)
(The hearing adjourned until 10.00 am on Tuesday)