11 July 2023
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(10.00 am)
Discussion re disclosure issues
Mr Beer: Good morning, sir. Can you see and hear me?
Sir Wyn Williams: Yes, I can, thank you.
Mr Beer: Thank you, sir. As you and the Core Participants know, there have been a series of further unwelcome developments in the disclosure remediation exercise being undertaken by the Post Office to put right errors and mistakes made in the disclosure given by the Post Office in response to our requirements made over the last 18 months or so, that it must disclose to us documents which are relevant to our terms of reference and list of issues.
When these unwanted events emerged at the end of last week, you took two decisions. Firstly that all of the correspondence that the Post Office had sent to the Inquiry in relation to the unfolding tale should be disclosed to the Core Participants so that they understood firsthand what the Post Office was, piece by piece, revealing to the Inquiry.
Second, that all Core Participants should have the opportunity this morning to make submissions on the issues that have arisen in the light of what the Post Office has disclosed to us since we met together in this hearing room last Thursday.
You’ve indicated, sir, that you’re considering two courses of action. Firstly, to proceed to hear evidence from Andrew Hayward, John Scott, Rob Wilson, Alison Bolsover, James Breeden, Paul Inwood, Thomas Pegler, Alan Lusher and Duncan Atkinson – that is the witnesses for this week, for next week and one in the following week – notwithstanding what the Post Office has said about the non-disclosure of documents that may be relevant to the evidence that they will give. You have indicated that, if this course of action was taken, you would not hesitate to recall any of those witnesses in due course if new, relevant documentation was provided that ought to have been put to them.
The second course of action you have said that you’re considering is to adjourn those witnesses and to re-list them in the hearing starting after the summer break. I should add that, subject to a point I’ll mention in a moment the Inquiry understands that the disclosure issues do not significantly affect the witnesses to be called in the week commencing 24 July. That is those witnesses who give evidence about the civil proceedings brought in connection with the Cleveleys Post Office.
Before giving the floor to the legal representatives of Core Participants, I should outline in general terms what has happened. This is principally for the benefit of those in the room who are not Core Participants, for those watching the proceedings online and for those otherwise following the progress of this Inquiry.
So by way of background, you’ll recall, sir, that on the 4 July you heard evidence from the Post Office’s general counsel, Mr Ben Foat, concerning the cause of the non-disclosure of a series of relevant documents, which ought to have been disclosed a year ago to this Inquiry but which only came to our attention because they were disclosed to a member of the public following her request under the Freedom of Information Act 2000.
The purpose of that hearing, taking evidence from Mr Foat, was not just the narrow one of establishing what had gone wrong and which had led to the non-disclosure of those small number of documents to the Inquiry, it had a wider purpose two: to seek to understand if that instance of non-disclosure was symptomatic of a wider series of problems. Put another way, it was to establish if something was wrong at a system level with the Post Office’s disclosure to us.
In that hearing Mr Foat identified three such wider issues in the Post Office’s disclosure process, arising from, firstly, its use of search terms, secondly its approach to families of documents and, thirdly, to a de-duplication exercise that it had carried out.
Mr Foat indicated in his evidence that, in the light of these systemic issues – that’s my phrase not his – that what he described as a disclosure remediation exercise was being undertaken, that the Post Office was:
“… genuinely working through the issues to remediate them as quickly as possible to be completely transparent with the Inquiry, that we do want to support the Inquiry to be able to continue its work and therefore prioritise the remediation in terms of the witnesses in Phase 4.”
At that same hearing last Tuesday, you indicated that you may issue directions to ensure that the remaining Phase 4 witnesses were not undermined by the Post Office’s disclosure failings.
The Post Office sent a letter to the Inquiry on 5 July at 10.32 pm setting out further information on the de-duplication issue insofar as it affected the evidence of Gareth Jenkins. The Post Office identified 4,767 documents that could be potentially relevant to Mr Jenkins who was due to give evidence the following day.
That following day, Thursday, 6 July, ie last Thursday, you held a hearing at which the decision was taken, and taken regretfully, to adjourn the evidence of Mr Jenkins until after the summer break. I explained the reasons for postponing Mr Jenkins’ evidence to the public. I’m not going to repeat them now.
Later that day, last Thursday – in fact, it was at 6.13 pm that night – the Post Office sent a letter to the Inquiry that contained an update on its remediation plan. That letter, the 6.13 pm Thursday letter, has been disclosed to Core Participants. I’ll read the relevant parts of it now.
“This letter sets out the Post Office’s current understanding and position in relation to the most significant disclosure issues that could potentially impact on the evidence in this phase. At the outset, the Post Office wishes to apologise unreservedly that these issues have already impacted the scheduled hearings requiring the adjournment of Gareth Jenkins’ evidence today and tomorrow.”
The letter continued by addressing the remediation to the search terms issue. It then addressed putting right the de-duplication exercise and said:
“This issue only came to light on 16 June 2023 at which the scope of its impact was unclear. Mr Foat indicated in his oral evidence that he was not in a position to give a timescale for this work. Regrettably, it remains the position that the scale of this issue is not fully known nor is the Post Office able to provide a timescale for the completion of all necessary remedial activity.
“As regards the witnesses scheduled for next week, in our letter of 5 July we explained the steps being taken to address documents that may have been impacted by the de-duplication issues and that are potentially relevant to POL’s prosecution and criminal investigation policies. We can confirm that initial search terms that have been run have returned hundreds of thousands of documents.
“The Post Office is still not in a position to confirm the number of documents that will need to be prioritised for review, ie in relation to Andrew Hayward, John Scott and Rob Wilson. Although we anticipate the number of documents that will ultimately need to be produced to the Inquiry will be relatively low, the number of documents that may need to be reviewed could be very significant. This in turn could impact on the lead time to producing them to the Inquiry.”
It’s notable, sir, from this letter, that the Post Office’s initial search terms had “returned hundreds of thousands of documents” but that it was not in a position even to confirm the number of documents which would need to be prioritised for review for this week’s hearing.
In the light of this material, you decided, as you said you would, to issue directions to the Post Office. I’m not going to read all of your directions and the preamble to them into the record, not least because they’re publicly available on our website. The relevant part of them was as follows:
“Any documents that relate to Phase 4 witnesses that are disclosed as a result of the Post Office’s remediation of search terms, family documents or de-duplication issues, as the case may be, must be provided to the Inquiry as follows: (i) for all witnesses who are due to give evidence to the Inquiry up to and including 28 July 2023, no later than two clear working days before the date on which that witness is due to give evidence; (ii) for future Phase 4 witnesses, no later than 14 August 2023. The Inquiry will shortly publish an indicative timetable.
“For all documents provided as above the Post Office must clearly identify the witness’s request and/or notices to which the documents are said to relate.
“Any documents that are disclosed as a result of the Post Office’s remediation of search terms, family documents or de-duplication issues, as the case may be, and otherwise respond to the Inquiry’s requests issued under Rule 9 of the Inquiry Rules, or Section 21 of the Inquiries Act, as the case may be, and relate to Phase 4, must be provided to the Inquiry no later than 14 August 2023. This does not affect any existing deadlines set by specific Rule 9 requests or related correspondence. The Post Office must identify the request or notices to which the document is said to be responsive.
“I make clear that the periods identified above, in particular in respect of the first direction, may in some cases only allow the Inquiry’s legal team an opportunity to consider whether it remains possible to call the relevant witness on the date that has been fixed. Where the numbers of documents are small or of tangential evidence, it is more likely that the hearing will be able to proceed. However, the Post Office and any other document provider should be in no doubt that I will take any further delay caused by the late disclosure of relevant documents or a failure to provide disclosure of relevant documents extremely seriously and I will not hesitate to continue to call those responsible to give evidence to the Inquiry to account for any failings.”
The Inquiry received a further letter from the Post Office at 2.11 pm on Friday last week, 7 July. This letter referred to your directions and set out details of what was described as a “new work flow” that was “under construction” to isolate documents potentially impacted by the de-duplication issue.
The Post Office stated that it will not be able to even to identify, prior to at least disclose of business tomorrow, even a preliminary number of documents that it would need to review prior to the witnesses due to give evidence this week: today, tomorrow, Thursday and Friday. As such, the Post Office said, firstly, it would not be in a position to comply with the disclosure directions for the witnesses being called this week. So, to be clear, this was the Post Office saying that the pool of documents that it needed to look at would not itself be identified until at least the close of business tomorrow in respect of a witness due to be called today.
Further, that does not, of course, address when the potentially relevant documents themselves would be identified; when they would be provided to the Inquiry; how long we would have to process them and get them out to Core Participants; how long they would have – the Core Participants, that is – to look at them and to formulate their questions; how long witnesses would have to look at them; how long we would have to analyse them and to formulate our questions or, indeed, to pursue further disclosure enquiries.
The Post Office added that it would not be in a position to confirm whether it could comply with the disclosure directions in relation to the witnesses to be called next week, ie week 3, until later.
Yesterday at 4.04 pm we received a further four-page letter from the Post Office. This said, in summary, that the Post Office continued to investigate the underlying cause of the de-duplication issue with a view to providing an explanation to the Inquiry and to ensure that it does not reoccur.
The Post Office said that it had not yet been possible to determine precisely when or why the approach to de-duplication that had been adopted had been adopted and whether it was a standard approach or an ad hoc approach. The Post Office said that, in respect of week 2 witnesses, ie this week, the position remained as set out in previous correspondence, ie it wouldn’t be known until tomorrow at close of business, even the size of the problem.
In respect of week 3 witnesses, the Post Office said that it was prioritising work on them by expanding the team working on these witnesses but, at the time of writing – that’s 4.00 yesterday afternoon – no preliminary search results had been received and that it anticipated it would only be able to set out these preliminary search results on Friday of this week. To quote the letter:
“Accordingly, it will appear that it will be very difficult for the Post Office to complete a review of those documents identified in sufficient time before the start of week 3.”
In relation to week 4 witnesses, the letter said:
“We acknowledge that in our 7 July letter we did not specify any concerns in relation to POL being able to comply with the July directions as they relate to week 4 witnesses. This was not intended to convey that the de-duplication issue does not affect the week 4 witnesses and POL regrets to say that they may also be affected by the de-duplication issue. We apologise for any confusion that has been caused by our omission to address the week 4 witnesses until now, which is due to the initial focus being on remediating the de-duplication issue in respect of the witnesses for weeks 2 and 3.
“As regards Alan Lusher, who is a former POL employee, the steps being taken to remediate to the de-duplication issue in respect of the week 3 witnesses are also being undertaken in respect of him. The remaining week 4 witnesses – Jason Coyne, Susanne Helliwell, Colin Lenton-Smith and Jan Holmes – are not current or former POL employees however, as with Mr Jenkins, steps will nevertheless need to be taken in order to identify and review any documents potentially impacted by the de-duplication issue in respect of these individuals.
“POL will write to the Inquiry confirming whether any potential impact has been identified and outlining the proposed approach in respect of these individuals as soon as possible and by no later than this Wednesday, 12 July.
“POL currently anticipates that the work flow to address the de-duplication issue should be fully operational well in advance of 24 July 2023, and POL currently anticipates being able to comply with the July directions in relation to the week 4 witnesses. Should this position change for any reason, eg the number of impacted documents that require review is very large, even after search parameters have been refined, POL will update the Inquiry immediately.”
The letter then addressed what had been uncovered in relation to the Gareth Jenkins de-duplication exercise. In summary, it revealed that a number of documents were now to be disclosed that are responsive to our Rule 9 Request and, if you look on the last page of the letter, sir, page 4, there’s a table and it sets out the Rule 9 requests that the documents now being disclosed were responsive to. The first one was our Rule 9 request number 5, dated 26 November 2021; the second was our Rule 9 request 10, which was the 16 February 2022; the third was our Rule 9 request number 12, which was 31 May 2022; the fourth was our Rule 9 request 14 of 14 June 2002; and the last was our Rule 9 request number 3, dated 20 January 2023.
So this reveals number of documents are now to be disclosed that are responsive to Rule 9 requests, the first of which was dated 26 November 2021 and so this material ought to have been produced to this Inquiry pursuant to that request some 18 months ago now.
The letter concludes, under the heading “Course of action to be adopted by the Inquiry”:
“POL does not seek to make any submissions as to the course of action to be adopted by the Inquiry in response to the Inquiry’s invitation of the 7 July 2023. It fully recognises the difficulties that the current issues with disclosure have created and the tension between the two options outlined by the Inquiry, and reiterates its profound apologies for having put the Inquiry and other Core Participants in this invidious position.”
You may consider it insincere of the Post Office repeatedly to send to the Inquiry letters about how they have failed to meet the deadlines for the provision to the Inquiry of potentially relevant documents, ie breach your directions, and at the same time say that they will not take a position on whether there should be an adjournment of relevant witnesses or not. This simultaneous provision of information by the Post Office, which points clearly in one direction but silence on the consequences of its own actions, is something that you may wish to explore, in particular whether this is because the Post Office will not say out loud the truth that dare not be spoken – ie there must be an adjournment – or whether the Post Office simply refuses to face up to the aftermath of the revelation of its own conduct.
Sir, save for a small number of matters, I do not propose at the moment to say anything about the maddening state of affairs that we are faced with. Instead, I will listen and may respond at the end of Core Participants’s submissions.
The small number of points that I’ll make now, however, are as follows: firstly, you will be aware that powers under Section 21 of the Inquiries Act 2005 give to you to require any person to produce any documents in their custody or under their control that relate to a matter in question at the Inquiry and that, if a person fails without reasonable excuse to comply with such a notice, that person commits a criminal offence.
The natural reaction in a situation like the present is to say that the Inquiry should not hesitate to use these powers against the Post Office. However, as you also know, section 21(4) of the 2005 Act permits a person served with such a notice to apply to you to determine a claim that he is unable to comply with the notice or that it’s not reasonable in the circumstances to require him to comply with such a notice.
Whilst it’s tempting to look at the sorry history of disclosure by the Post Office and reach the conclusion that that sorry history should be visited by the service of a section 21 of the Post Office to require production of documents relevant to our upcoming witnesses, we, as your team, are clear that, in the situation that we now find ourselves, that would be met with a section 21(4) application relying on precisely the same facts and matters as are set out in the letters which I have read to you.
Sir Wyn Williams: Mr Beer, can I ask you, in respect of section 21, is the word “person” to be interpreted, as is sometimes the case, as a legal person, which might include a corporation, or is it to be interpreted as the human person to whom the notice is sent?
Mr Beer: I think the law is clear on this.
Sir Wyn Williams: Yes.
Mr Beer: A person in the context of the Inquiry Rules, and it appears in a number of places, should be read as referring to both a legal and a natural person. That has been the consistent approach taken by inquiries held under the 2005 Act to which the 2006 rules apply, stemming from a ruling to that effect by Sir Brian Leveson in the eponymously named Inquiry that he conducted but, more than that, the schedule to the Interpretation Act 1978, contains a provision which sets out that in other instruments and enactments – and I’m summarising here – a person must be taken, unless the context otherwise requires, to mean a legal and a natural person. So the short answer is it could apply to the Post Office as a corporation.
Sir Wyn Williams: Yes, but the, what I’ll call loosely, statutory defence to the criminal allegation would be available to both the natural and the unnatural legal person, if I can put it in that way.
Mr Beer: Yes, it would. Before one got to the issue of a criminal offence, the process is we serve a notice saying “Please produce” – and I’m drafting on my feet here – “all documents relevant to Andrew Hayward by 4.00 last Thursday”, the answer to that would probably be an application under section 21(4), “It’s not reasonable for us to comply with the notice because”, and then essentially what is sent out in the letters would appear and you would have to determine that claim.
If you determined that claim against the Post Office and there was still non-compliance, then there could be criminal proceedings and, in the criminal proceedings, there’s a reasonable excuse defence too.
Sir Wyn Williams: Yes.
Mr Beer: So there’s two stages at which the reasonableness of compliance is addressed in the process. The point I’m simply making, sir, is although it is very easy, and it is my initial reaction to a non-disclosure issue, to rely on the statutory machinery backed by criminal sanctions, this isn’t a situation where we’re in a position to undermine anything that we’re currently being – is being said to us. It’s not about what has happened in the past, particularly right now, it is the situation that has now been revealed and whether it would be reasonable to say “Turn over all of this material in the next 24 hours”, and whether that would be ever capable of being done.
Sir Wyn Williams: Yes. In terms of sanctions more generally, if I can put it in that rather loose way, there is no such thing. There is a statutory framework and I’m bound by the statutory framework, yes?
Mr Beer: Yes. In the ordinary event that this was a proceeding in a court or, indeed, some forms of tribunal, what has happened here would doubtless be visited by an adverse order for costs against the Post Office to pay for the consequences of their misconduct. That’s not a sanction that’s available to you under the 2005 Act or the 2006 Rules.
Sir Wyn Williams: No. Thank you.
Mr Beer: The second matter that I would invite you to consider, sir, is what evidence there is that this remediation exercise is likely to turn over evidence that is relevant to the witnesses who are to give evidence, ie what’s the likelihood that this remediation exercise will yield fruit? I’m not inviting you to speculate there but, instead, perhaps just to look a little while backwards at what has happened so far.
The first point I’d make is, in contrast to some previous instances, I’m talking about months ago now, of late disclosure by the Post Office, where in correspondence it’s said that the documents it has located appear not to be important or significant to the upcoming witnesses, on this occasion, in the clip of four letters that I have taken you through, nowhere has that been said. The Post Office has not said, “This material may be insignificant”.
The second thing. I read to you the section of the letter of yesterday of 4.04 pm, at the end concerning Gareth Jenkins, and you will see that a number of documents that have been turned up that are relevant in the Post Office’s assessment to the evidence of Gareth Jenkins. It’s fair to say that’s a much smaller number than the initial estimate of 4,767 that was given. There’s only 35 in the list.
Sir Wyn Williams: Yes. In the past, Mr Beer, we have – I say “we”, but ultimately I – have adopted a somewhat pragmatic approach and perhaps an approach based more upon hope than anything else, that documents which turn up late will not turn out to be particularly significant, and I’ve been conscious that I’ve been doing that, for example, in respect of the very early development of Horizon and such matters, where it may have been appropriate – I stress “may” because others me take a different view – but it may have been appropriate for me to take something of a chance in respect of late disclosure.
We’re now at a stage where we are reaching a crucial part of the investigation, are we not, in terms of personal accountability, where the scope for taking a risk or a chance with disclosure is vanishingly small in comparison.
Mr Beer: Sir, I would respectfully agree and you’ll recall that when I was making submissions last Thursday about Mr Jenkins’ position, I noted that one of the documents that had been obtained as a result of this disclosure exercise was indeed highly relevant to the evidence that he would give.
The third point under this subheading is that I should point out that the Inquiry has recently received from the Post Office a series of documents relating to Alison Bolsover’s evidence. Prompt analysis by the Inquiry Team that sits behind me suggests that these documents include documents which are highly relevant to the evidence which she is to give.
The third point that I would draw respectfully to your attention, sir, is to recall Tony Marsh’s evidence of last week, and I’m not going to invite you to make findings now on the veracity or reliability of everything that he said but one of the things that he did say was that, having read carefully Mr Duncan Atkinson KC’s report, it appeared that the policies and procedures that the Inquiry had been given by the Post Office was not a complete set that reflected his memory of the policies and procedures that were in place.
Sir Wyn Williams: The impression I gained, Mr Beer, was that he was at pains to press that upon me.
Mr Beer: He was and, whilst, of course, there’s an obvious reason to say it might be right that the policies you’ve got are, if Mr Atkinson KC is right, defective, there’s this whole bunch of other policies that you haven’t seen, and they were much better. Of course, there may be a motive for saying that. That is evidence that you should take into account in the present situation, that you have received evidence under affirmation that there has been non-disclosure of policy documents to this Inquiry from somebody as Head of Security for seven or so years who would be expected to know.
The fourth point that I would make before sitting down, sir, is to remind you that at least two of the witnesses who we are planning to hear from over the coming week – I shall not name them now – were witnesses who, because of the evidence that they have given and because of documents already in the possession of the Inquiry, were witnesses who I would invite you to give the warning against self-incrimination to.
Sir Wyn Williams: Right.
Mr Beer: Sir, we asked all Core Participants to identify whether they wish to make submissions this morning and I should just record the negative returns.
UKGI said that they had no submissions to make, Paula Vennells said that she had no submissions to make and Fujitsu have informed us that they have no submissions to make.
In terms of the order this morning, sir, it’s entirely a matter for you, but you may wish, if you consider it appropriate, to hear anything that the Post Office wishes to say first, and then give the subpostmaster Core Participants the floor in the order in which they wish to speak.
Sir Wyn Williams: I agree. So let Ms Gallafent say what she wishes to say.
Submissions by Ms Gallafent
Ms Gallafent: Sir, good morning.
Can I start by repeating the unambiguous apology for the position that the Inquiry and, in particular, the Core Participants find themselves in, as a result of the failures of Post Office’s disclosure. We had set out in our letter sent yesterday, sir, our position that we did not seek to make submissions on the two alternatives that you had identified when directing this morning’s hearing. That is not, as counsel for the Inquiry suggested, in our respectful view, because Post Office simply refuses to face up to the aftermath of the revelation of its own conduct.
Post Office is emphatically engaging with the aftermath of discovering the issues, sir, that we have written about on a number of occasions and those letters reflect the efforts that we have been going to, to remediate and resolve those matters. But it is not right, in our submission, for us to seek to persuade you, sir, of which of the two alternatives that you identified should be adopted.
In our view, it is not right for Post Office, as the organisation at the heart of this Inquiry and facing potentially very serious criticism indeed, to advocate one way or the other. Rather, it is the Core Participants, particularly the postmasters, whose voices should be heard on this occasion.
Sir, the very fact that you identified those two alternatives indicates that there is not one ineluctable view that may be taken by others involved in this Inquiry and it is, with respect, those voices who we suggest, sir, you hear before making any decision. But I emphasise again the deepest of apologies on behalf of the Post Office for the position, sir, that we have put you and all those involved in the Inquiry in, but emphasise we will continue to do everything that we possibly can to remediate and resolved the position.
Thank you.
Sir Wyn Williams: Ms Gallafent, I put forwarding two alternatives because it seemed to me at the time I wrote them, or that they were written, that they were the only runners, so to speak. Am I right about that? Is there a third alternative that you have thought about, considered, and wondered why I’m not considering?
Ms Gallafent: No, sir. I note, of course, in your directions you’d indicated it was open to anyone to advance a third route. We haven’t identified a third route, sir. We’d accept that those are, in our submission, the binary alternatives. Let me make it clear that we are not in any way seeking to anticipate other person’s suggestions that there might be perceived to be a third route through.
Sir Wyn Williams: All right. Is there anything that you wish to say to update the latest letter, so to speak? I’m not thinking you should but I’m just giving you the opportunity. That’s all.
Ms Gallafent: No. I’m very grateful and, sir, you’ll appreciate that matters are rapidly moving. We will be updating you, sir, in correspondence but that won’t be until later today. But we are conscious of the efforts that are going on behind the scenes and we will provide you with updates as soon as we can in that respect. But I don’t have anything further at this point in time today to update you on, sir.
Sir Wyn Williams: One of the things I’m thinking about which would impact upon you – when I say “you”, I mean you and your team – and therefore you need to consider it, is that I should be now much more proactive in the sense of not waiting for letters from you to update me but adopting a much more – a practice much more akin to that which I have done in relation to compensation and literally scheduling hearings frequently, certainly frequently over the next few months, notwithstanding the advent of the holiday period, so that people’s minds are crystallising by the prospect of having to state publicly what the position is. Do you have any observations about that?
Ms Gallafent: Sir, I can assure you that people’s minds are already firmly crystallising and crystallised on the importance of that matter. You should be in no doubt, sir, with respect, about that.
I don’t seek to persuade you from holding a hearing, were that would be considered appropriate, on the subject of closure but just to emphasise, sir, at the moment we are focusing our energies and efforts on trying to resolve the issue rather than – which we recognise is an equally important question – to identify exactly how the issue arose and how to prevent it arising again. So we are throwing everything at it at the moment to try to get the documents reviewed and to the Inquiry.
I don’t say that by way of putting off an evil day; I say that simply because if, sir, you were to suggest holding a separate hearing on the question of disclosure, that would inevitably, at this point in time, take some of the resources away from the remediation efforts that are already under way. But, sir, I recognise fully that’s entirely a matter for you, sir.
Sir Wyn Williams: All right. I’ll think about that, as I hear other people develop whatever it is they wish to say. Is that it, Ms Gallafent?
Ms Gallafent: It is. Thank you, sir.
Sir Wyn Williams: Thank you. Right.
Well, as Mr Beer indicated, and as I anticipated, the principal legal representatives for the subpostmasters will now no doubt wish to address me. So in whatever order you have agreed, if you have, I am happy to hear you.
Mr Stein: Sir, I believe that, with the agreement of my learned friends, that I am able to go first.
Submissions by Mr Stein
Sir Wyn Williams: Right.
Mr Stein: Sir, it doesn’t matter whether the Post Office is dodgy or incompetent, or more likely that the Post Office is staffed by dodgy incompetence. The way that our clients are being treated is an outrage, the way that this Inquiry is being treated is an outrage.
These disclosure issues follow a month whereby, sir, you were unable to continue with these proceedings within this Inquiry due to ill health. They arise at a time when we start to deal with, and have had one of, the Heads of Security, which we have seen through the course of this evidence in this Inquiry to be a focal point of many of the issues with which we are about.
Our clients don’t believe in coincidence. They don’t believe that what is happening here is some difficulty that the Post Office is having at this particular time. This seems to them, from their experience, to be deliberate.
Before I develop our overall response to the two options, I make no apology and I will be quoting a number of our clients and their reactions to what has happened. Sir, as you know, we represent 157 former subpostmasters and mistresses. A great many of our clients have developed mental health conditions due to the Post Office’s original actions against them. It needs to be understood they are now reliving the same nightmares, being retraumatised by the Post Office’s conduct.
One of my clients says:
“My anxiety is at an all-time high. My mental health is taking its toll. I can’t see any light at the end of the tunnel. Post Office always throws a spanner in the works. It’s the same tactics every time. They’re just can kicking, taking the mickey out of the Chair, you, the lawyers and us. They have total disregard for any of us. They’re making fools of everyone with no consequence, same as always. They think they’re untouchable and unless anything is done, they’ll keep believing and acting of the same.”
The same client asks this:
“Why is no one getting aggressive with them? Stop pandering to them. Talk is cheap, actions speak louder than words. Hit them where it hurts: in the pocket. They’ll soon take notice then.
“Having to relive these tactics of the Post Office again brings back memories of how they treated us when we were suspended: the not knowing what they’re playing at. I can’t handle this much more. They’re grinding us down, as always. They know what they’re doing, they’re causing people to lose their minds and this is on par with how they’ve always treated us. I can’t sleep, concentrate and I’m getting snappy with my family because it’s in the unknown.”
Further comments:
“I know this Inquiry is separate to compensation but to us claimants the compensation will always remain the forefront of our minds. Everyone is being paid, it seems, except those most affected: the claimants. The two go hand in hand. No matter how many times you say this is separate, to the claimants the compensation is more important than the Inquiry. We can’t live on fresh air.
“They will have more blood on their hands should things not improve, because I feel people are on the very cusp of giving up. Post Office don’t care. Another claimant who takes their life is one less to pay.
“Leading on from that, the way the Post Office are acting fills me with zero confidence that, come the time the claims to be settled, these will not be completed by August 2024. There is no way on God’s Earth they will settle all claims in time. They can’t produce a piece of paper on time. What makes you think they will settle claims? None.”
Another client:
“Every day my body and mind sink further. There is no happy retirement for me. I can’t get closer to my family. I so understand why so many leave us by their own hand. POL is a machine. It doesn’t care. Sir Wyn was the last hope for any just recompense and it is now lost.”
“The whole situation with the Post Office is so frightening”, another writes, “frustrating and is affecting my mental health badly at the moment. I have lived the last 16 years suffering from mental health and on medication due to their actions. A lot of anger and frustration was shown at the meeting today.”
That refers a meeting we had with our client group:
“… and those of us who were part of the 555 Litigation can see the way they treated us then repeating itself again, and they will get away with it, as they always have.”
Another client:
“At the outset of this Inquiry, I found it of great help to me and my mental health. However, every time there is a delay caused by the Post Office procrastination and deliberate obstruction, it has detrimental effect on me. Therefore, I’d prefer that we continue, as I have no faith that the Post Office will not continue making late disclosures again and again at key points in proceedings causing recurring delays, which would have a continuing detrimental effect upon me.”
Another client:
“I would urge the Chair to take the strongest measures possible in his power to force the Post Office into disclosing all relevant documentation, even if that means going to the High Court. The Post Office has consistently failed to disclose information throughout the whole process and I go back 14 years of fighting them.
“The Post Office cannot be trusted to tell the truth and have shown complete disregard for the law of our land. Their officials have been shown to tell untruths in court and in evidence documents over many years. They are making a mockery of this Inquiry and have scant regard to the people whose lives and health they have ruined.”
Sir, you can see that the Post Office’s conduct has serious, direct, human consequences. Many of our clients are despairingly driven to the conclusion that these recent developments are nothing other than a deliberate attempt by the Post Office to interfere with, frustrate and undermine the Inquiry process.
This Inquiry is built upon the judgments of Mr Justice Fraser in the High Court and, sir, you will recall that Mr Justice Fraser made a number of comments about the cavalier approach that the Post Office applied to disclosure in the Group Litigation. I remind you of one part. Judgment number 6, Horizon Issues, dated 16 December 2019. Paragraph 575 of the judgment. I quote Mr Justice Fraser:
“In the letter of claim from the claimants dated 28 April 2016, the Known Error Log was sought from the Post Office, that letter stating ‘We understand that Fujitsu maintained a Known Error Log for Horizon and that such reports will have been provided to Post Office. Please see the list of the categories of documents relating to Fujitsu referred to below that we request disclosure of.’
“Item 22 in the list of documents sought was the Known Error Log kept by Fujitsu and provided to Post Office Fujitsu, as referred to above, and all correspondence relating to the same.”
Paragraph 576:
“The answer in a letter from the Post Office’s solicitors against the specific item 22 was:
“‘In circumstances where you have not particularised any factual basis on which Horizon is defective, disclosure of these documents (if they exist) is not relevant, reasonable or proportionate’.”
Mr Justice Fraser concluded this particular section at paragraph 577:
“The suggestion in that letter that the Known Error Log was not relevant is simply wrong and, in my judgment, entirely without any rational basis. The further suggestion viewed with the hindsight now available, that the Known Error Log may not exist, is disturbing. The claimants’ request use the precise title, “Known Error Log”, and this clearly did exist. To suggest in an answer ‘if they exist’ is somewhat misleading.”
In other words, the Post Office has form for that this type of behaviour and, we suggest, the Post Office has form which demonstrates itself in the disturbing way it treats its disclosure obligations.
There is a very telling passage at page 319 of Mr Wallis’s book The Great Post Office Scandal where one of the barristers, now King’s Counsel, Kathleen Donnelly, who represented subpostmasters before Mr Justice Fraser, said the following:
“It is obvious that the Post Office had a strategy to withhold material until they were forced to produce it. This caused delay, disruption and ran up costs. We only received significant documents after a battle and were left with little time to review them, sometimes just days before a witness was cross-examined. It was exasperating.”
Those words are just as applicable today as it was during the High Court action.
Sir, you’re aware that my instructing solicitors, Howe+Co, have made repeated submissions to the Inquiry in relation to disclosure issues. I repeat a section of the letter dated 2 February 2023. Howe+Co stated this:
“Post Office’s habitual delay in complying with the disclosure process is hampering full and thorough preparation by us and no doubt other representatives of complainant Core Participants, as well as the work of the Chair and the Inquiry Team.”
We suggest, sir, that the behaviour that has been set out in detail by my learned friend Mr Beer should be viewed in the clear light of all of the serious failings of the Post Office on the central issue of disclosure, that has run through the core of the Inquiry and, indeed, through the Post Office’s conduct of all proceedings.
We hope, sir, that it is understood that the very many clients we represent have no belief whatsoever in the good faith of the Post Office.
Mrs Holmes, who, sir, you will remember lost her husband before he was cleared at the Court of Appeal, she asks why those:
“… who are so obviously shambolic are claiming such high salaries or, if they are dishonest, why are they being allowed to run the Post Office?”
Sir, we have been asked to give our view on the two proposed courses of action, in response to the latest disclosure scandal. In considering these options, we’ve also turned to the Inquiry’s terms of reference, which state:
“The Inquiry shall [at (b)] build upon the findings of Mr Justice Fraser and the judgments of the criminal courts specified above in the terms of reference by obtaining all available relevant evidence from Post Office, Fujitsu, BEIS, UKGI, to establish a clear account of (i) the implementation and failings of Horizon over its life-cycle; and (ii) Post Office’s limited use of information from Horizon when taking actions against persons alleged to be responsible for shortfalls.”
It is a core part, therefore, of the terms of reference that this Inquiry must pursue and continue to pursue the Post Office in relation to its disclosure obligations.
The first course suggested by the Inquiry is that the Inquiry proceeds to hear oral evidence from the seven POL witnesses, over the next couple of weeks, and Mr Atkinson, and the Inquiry states that it will not hesitate to recall any of these witnesses in due course if new, relevant documentation was provided that ought to be put to them.
The second option is that the hearing of those witnesses is adjourned and then re-listed after the summer break with the exception of witnesses concerning the Cleveleys Post Office.
We have taken instructions from our client group. There is a two-thirds majority that suggests that the right course of action is to adjourn to ensure that all relevant disclosure is made. May I say there is a strong third who say that this Inquiry is being dangled like a puppet by the Post Office and that the Post Office should not be allowed to call the tune.
Sir, our clients have every faith in you having no hesitation in re-calling witnesses, but recognise the fact that witnesses who have already given evidence may come under the question of “Is the new document significant/substantial? Will it make a difference to the evidence? Could it be dealt with another way?”
There is always a danger that the Inquiry may be put in a situation whereby witnesses that are being called, that we are suggesting should be recalled, the Inquiry may make a different decision to that to which we put forward and that could leave individual subpostmasters very frustrated, if questions relevant to their own experiences fall away as a result.
Furthermore, there is the point that giving Post Office witnesses two separate occasions on which to give their evidence, assuming the recall, may give them an advantage of having had a dress rehearsal for what is to come.
So we make, on balance, the submission in support of the second option but with two important caveats. Firstly, we suggest that Mr Atkinson should give evidence as per the current timetable. That is because Mr Atkinson King’s Counsel gives evidence as an Inquiry expert and, like Mr Cipione in Phase 2, is likely to be recalled in any event and can also therefore deal with further evidence as it emerges.
Secondly, we ask that the Inquiry uses some of the time that will be lost in these weeks to recall Mr Foat, to provide a fuller explanation on oath in relation to the Post Office’s failure to comply with their disclosure directions. Further, we ask that the Inquiry requires the CEO of the Post Office, Mr Nick Read, and a relevant partner of Herbert Smith Freehills to attend to provide an explanation about the involvement of the Post Office’s legal team in the disclosure process, so that they can answer questions on the wider issues concerned with what appears to be the Post Office’s interference with this process.
In particular, we suggest that we need to know, and this Inquiry needs to be satisfied, that disclosure has been properly, honestly and competently dealt with in the modules we’ve had so far. There is nothing, absolutely nothing, in this recent disclosure mini-scandal, within the many of the disclosure scandals, that gives a single one of our clients any certainty that the Post Office’s disclosure obligations have at any time been fulfilled at any point within this Inquiry.
So we ask that Mr Foat, Mr Read and the relevant Herbert Smith Freehills partner be called to attempt to assure us that these disclosure issues don’t have relevance to the witnesses and modules we’ve already dealt with.
Therefore, sir, subject to the exception of Mr Atkinson King’s Counsel and what we say about recalling Mr Foat, calling Mr Read and a partner from Herbert Smith Freehills, we submit, on balance, that the second of the proposed options, although regrettable, would represent the fairest option for the Inquiry, its best chance of fulfilling its terms of reference and also fulfilling its duty to our clients and the witnesses themselves.
It is important that we address the possibility of the Inquiry taking sanctions against the Post Office. It is quite apparent to us, on behalf of our clients, that the disclosure issues presented by the Post Office’s actions and omissions are capable of preventing the Inquiry’s fulfilment of at least part of the terms of reference.
We submit that the response of the Inquiry should be proportionate to the seriousness of the disruption which has been caused by the Post Office’s conduct.
We ask you, sir, to consider the remedy or the remedies open to the Inquiry and, in particular, in relation to Section 36. Section 36 of the Inquiries Act 2005 enables a chair of an Inquiry to certify to the High Court the failure of a person to comply with a Section 21 notice or an order made by the Inquiry. The court, the High Court, would then be able to make an order, by way of enforcement or otherwise, to compel a party to comply.
Sir, you may feel that that would work well with the suggestion that you have made and considered with Ms Gallafent King’s Counsel, that the Inquiry works in a similar way to the compensation hearings that we have, to drill down into the detail of what is happening with the disclosure.
We invite, sir, you to consider the possibility that that approach would work well in tandem with the strength of the powers of the High Court backing it. The courts have accepted that Section 36 may be appropriate in cases of this kind. In Paisley 2008, Queen’s Bench Division in Northern Ireland held that the focus of Section 36 was on obtaining information and the provision was successfully used by the Chair, Sir Martin Moore-Bick in the Grenfell Tower Inquiry in Moore-Bick v Mills [2020] EWHC 618 (Admin). In that case, Mr Justice Mostyn accepted that the respondent had not treated a public inquiry with the seriousness that it deserved and had failed to respond fully or properly with a Section 21 notice which had been served, and the court ordered the respondents to do so.
It is relevant to note, sir, that Section 36 refers to orders made by an Inquiry as well as statutory notices.
We submit that an application to the High Court in relation to the Post Office’s failures, in relation to the disclosure directions given on 7 July of this year, would provide the Inquiry with an appropriate remedy in this case and work well in tandem with the proposal that you have made. Importantly, the procedure under Section 36 will expose the Post Office, as a company, and potentially its directors, to committal for contempt of court should the Post Office fail to comply with any Section 21 notice or order from the Inquiry to produce the evidence which the Inquiry has requested.
The High Court would not approach this in an unthinking way. It would approach this in a way that would actually understand the current position and the difficulties with the disclosure process.
Sir, in conclusion, we ask that the Inquiry takes the second of the two options, subject to what we have said about Mr Atkinson King’s Counsel and requiring the attendance of Mr Foat, Mr Read and a partner from Herbert Smith Freehills. The Inquiries Act does provide a procedure backed up by sanctions to enable you to put a stop to the Post Office’s continual interference with the progress of this Inquiry and we ask you, sir, to give serious consideration to deploying that process.
Sir, we cannot emphasise enough that the conduct of the Post Office is having hugely detrimental effects on the mental health of some of our clients. It is retraumatising them, it is putting them through it, it is reminding them of exactly the way that the Post Office has approached the litigation at the High Court.
Our clients are adamant that the Post Office must not be permitted to control or interfere with this Public Inquiry.
I think I’ve finished my submissions but I see a note from my instructing solicitor. Just one second.
Sir Wyn Williams: Of course.
Mr Stein: Sir, yes. I’m very grateful. It relates to the question of the hearings in relation to disclosure.
This would provide useful support for the process and, of course, could be scheduled to take place alongside the compensation hearings that you already have.
Sir, those are our submissions overall. Can I assist any further?
Sir Wyn Williams: No, thank you very much.
Right. By my computer clock, it’s 11.06. Who is next to speak?
Mr Moloney: Sir, that would be me and I’ll just be a very few minutes. So it maybe –
Sir Wyn Williams: Well, then we’ll hear you, Mr Moloney, and then have a break, if that’s the case.
Submissions by Mr Moloney
Mr Moloney: Thank you, sir.
Sir, we echo much of that which has been said by Mr Stein but won’t repeat it. It is an awful position that the postmaster Core Participants find themselves in again, not least with their having to listen to the apparent apologies of Post Office again, and the more those apologies are made, the more hollow they sound. But having consulted our Core Participants, we would also prefer the option of not hearing the evidence of the witnesses scheduled for this week and next until disclosure has been completed.
Core Participants should be able to formulate their Rule 10 requests with the benefit of the fullest practicable disclosure and we have highlighted, in a number of our Rule 10 requests over many months, where further disclosure may be outstanding, including in respect of attachments to emails or further emails in a chain, for example. We’re very grateful to the Inquiry for how it’s explored those requests in advance of witnesses appearing before the Inquiry.
Some documents have been released late, both to witnesses and to Core Participants. It’s been an ongoing problem, and in the light of the evidence of Mr Foat and the exchanges over the past week, we share the view of Mr Beer that the position in respect of the treatment of family and duplicate documents is a maddening state of affairs.
So it is with real regret, sir, that we also take the view that the Inquiry should not continue with the witnesses scheduled for this week or next.
Sir Wyn Williams: Does that include Mr Atkinson in your case?
Mr Moloney: Sir, it does, in our view. Mr Atkinson is an expert witness and he has to provide his opinion after reviewing all relevant evidence. If there are concerns as to whether he has been provided with all relevant evidence, he shouldn’t give evidence until those concerns are dealt with.
Sir Wyn Williams: All right. Is that it, Mr Moloney?
Mr Moloney: That’s it, sir.
Sir Wyn Williams: I said we’d take a break.
Mr Henry, do you want a break?
Mr Henry: I would like a little break, sir, if you don’t mind.
Sir Wyn Williams: That’s fine.
Mr Henry: Thank you very much, sir.
Sir Wyn Williams: We’ll start again at 11.25.
Mr Henry: Thank you, sir.
(11.08 am)
(A short break)
(11.25 am)
Mr Henry: Hello, sir.
Sir Wyn Williams: Good morning, Mr Henry.
Mr Henry: Thank you, sir. May I begin?
Sir Wyn Williams: Of course.
Submissions by Mr Henry
Mr Henry: Sir, sometimes with a vexatious machine, you just have to turn it off at the mains. The Core Participants we represent are unanimous that this Phase should be adjourned, and that no further evidence, including expert evidence, be called until September and I shall explain why towards the close of my submissions, sir.
But may I very briefly touch on last October. The old proverb goes: if a man deceives me, once shame on him; if twice, shame on me.
You were within your rights to give the Post Office one chance and you did so, last October, and the prescient individuals I represent won’t say “I told you so” and neither will I, but they knew the future, sir, for the past they knew. The mental scars they’d suffered, their bodies broken in health, tormented by physical pain, and particularly the marred existence, bleak and pitiless, that they had endured for some of them approaching two decades because of the Post Office’s long deceit, unthinking cruelty and culture of secrets, cover-ups and lies.
This was intimately known to the Core Participants which, together with Ms Page, I represent before you. They knew their oppressor better than anyone else, for their bore the wounds that it had inflicted callously and, through me, they told you of the nature of the beast you were contending with last October: a vicious institution that had crushed them, suffocated their right to a fair trial, putting them – some of them – in prison or subjecting them to penury, some of them for over two decades.
Now, this institution, sir, you will recall, had misled the Court of Appeal Criminal Division in the case of Butoy, as recently as 2008. That subpostmaster was successful, however, in Hamilton in 2021. This institution had hazarded the civil litigation before Mr Justice Fraser, as he then was, only to fight tooth and claw, resisting the obvious limb 2 in Hamilton.
But after a series of civil trials and appeals, you might have been forgiven for thinking that they would approach matters before you, this statutory Inquiry, with rigour, profound thought, ample resources and application, and maybe even a little humility.
It might therefore be thought that you were entitled to the essential incredulity that a public corporation, historically infected with the contagion of non-disclosure that had contaminated both civil and criminal justice, was unlikely to continue with reckless non-disclosure or manifest such flagrant incompetence before this Inquiry. No doubt such prospect seemed preposterous.
Well, in a sane world, a contrite Post Office would unhesitatingly comply with every order or stricture so that its errors could belatedly be reversed by striving humbly to uncover the truth, even if the damage to the Core Participants had been done. Even if their suffering could not be undone, honest humility by the Post Office would have meant something. But it was not to be.
At this point, sir, I will only read two of the messages that we have received. I pick two that typify the pain and anguish of those we represent. One is from Nichola Arch who says:
“I just thought I would write my views down as I am unable to attend tomorrow due to an operation I had last Monday. The harm of non-disclosure and/or delayed disclosure cannot be underestimated when it comes to the victims of this nightmare. For some, it takes you straight back to the time when you tried to defend yourself but constantly hit a brick wall that is called the Post Office, knowing the truth is there, but you constantly have no access to it.
“This is what justice looks like to all of us, a one way-ticket to nowhere. The Post Office have said they’ve learnt lessons and they continue to do this. Is this lesson a conspiracy and disrespect for the whole of our legal system? Being the guilty parties, I do not understand why the Post Office have so much slack given to them. It’s almost like they continue to control the whole narrative. We are losing momentum in the Inquiry and changes have to happen now. You, sir [she says], have showed nothing but integrity, humanity and respect at all times, yet it is being reciprocated with this disgraceful disrespect to the whole Inquiry.”
You, sir, I repeat, using Ms Arch’s words, have shown nothing but integrity, humanity and respect at all times, yet it is being reciprocated with this disgraceful disrespect to the whole Inquiry.
Then Janet Skinner, who – and I’m grateful to Mr Schwarz:
“I completely understand the chair is not happy with this disclosure process from the Post Office, so are we all. Moreover, I’m extremely concerned about this situation. Why is the Post Office able to do this after years of withholding information? Why is it allowed to continue? This isn’t the first time or the second time. I believe that there should be some sort of punishment for their behaviour and for their completely negligent behaviour towards this Inquiry. It’s becoming the Post Office show again. The Post Office are well aware of their actions. Are they not intelligent enough to understand the rules?”
So that is what Janet Skinner and Nicki Arch have written to you, sir. This, I won’t say, was always on the cards. That would be to underplay it, sir. This was, I’m afraid to say, inevitable. The Post Office were never likely to comply or tell the absolute truth in a tight corner and this now, after Rule 9s, which were sent at in 2021 and 2022, is the tightest of corners, you may think, that they are in.
They were not particularly, if I may pass this observation, inclined towards dredging up that which had been long buried or suppressed. The suggestion that their exercise was mechanistic – when learned Counsel to the Inquiry made that perfectly reasonable, incontrovertible suggestion to Mr Foat, he seemed to adopt an approach of truculent umbrage. But I’m afraid it is mechanistic and these disclosure issues will derail this Inquiry unless, as I have invited you to, sir, you reset and repress the button.
Australia has recently had a Royal Commission into the terrible Robodebt scandal that has echoes of this terrible scandal but fortunately only lasted a quarter of its time. They had a definition of disclosure in that Royal Commission, which no doubt was in relation to privacy, but it helps because, although it might have been a definition devoted to the idea of privacy, it nevertheless rings true in this case:
“An entity discloses personal information where it makes it accessible to others outside the entity and releases the subsequent handling of the information from its effective control.”
What we are having, sir, I respectfully submit, is the last gasp of the Post Office having matters taken from its effective control and, ironically, it has been the Post Office’s blind reliance on technology that has caused or contributed to this problem, which is again grimly ironic for those we represent.
Mrs Shaikh’s Freedom of Information Act request shows that old-fashioned fieldwork, talking to those who know or ought to have known the subject, should augment that mechanical, unthinking approach to technology, because lawyers are not investigators and investigators are not lawyers. But there should be an investigative arm brought in to augment and potentiate technology because there needs to be transparency and responsible disclosure, so that the people responsible for these documents are identifiable and accountable ultimately for their production. Fieldwork must drive technology. We cannot have faith in technology alone.
I’m about to conclude, sir, but we cannot go on as if anything has happened. We cannot have business as usual. This is a watershed because, unless the Inquiry forces the Post Office to put its house in order, we can have no confidence that this will not happen again, and again, and again. But Counsel to the Inquiry is right that to instigate criminal proceedings now, would be premature and precipitate. But if the Post Office is given time between now and September, then, in the event of repetition, no further delay or excuse could be countenanced, and we respectfully submit that the whole apparatus of Section 21, Sections 35 and 36, should be used in a proportionate way.
We also adopt the suggestion by my learned friend Mr Stein that the CEO and general counsel need to be brought here so that they know that they must now – and they are now compelled to devote all that is needed to ensure that there are effective resources in place and proper modes of operation but, also, sir, in order to ensure, because we have great concerns that this chance discovery, as a result of Eleanor Shaikh’s intervention, might reveal that Phases 2 and 3 are likewise compromised, and so, therefore, we invite you to serve Section 21 notices in respect of all past and present Rule 9s.
It surely cannot be seriously disputed that the Post Office’s methodology so far is less than optimal: blind, unthinking, mechanistic approach to keyword searches. That is why we say that there are four matters that are of considerable concern now, which justify the adjournment until September.
The first, Phases 2 and 3 are probably likewise compromised and they echo and bleed into all of the other phases that follow, particularly Phase 4, and it will happen again, unless the button is reset.
Secondly, sir, investigative interviewing needs to be deployed. The Post Office was probably shocked at the effectiveness of Second Sight but Second Sight’s methodology in uncovering this scandal, a very, very considerable length of time ago, was because of its pre-occupation with fieldwork as well as technology.
Sir, so far as weeks 3 and 4, we respectfully submit that the whole of this phase should be postponed. I’ll deal with expert evidence separately but Jan Holmes is a case in point. You will remember – or perhaps I flatter myself – that when I asked him questions on 16 November 2022, I was concerned at an extraordinary coincidence that the RMG board was discussing, on the 14 May 2021, serious structural flaws in EPOSS when he, quite by chance, completely by coincidence, it seems, and had nothing to do with his current job at the time, was recalling the report that he wrote with Mr David McDonnell which was dealing precisely with those flaws in EPOSS. The references on Relativity are RMG00000009 and FUJ00080690. So we believe that there is a half-open can of worms there.
But the fourth point, sir, is the privilege against self-incrimination and the privilege against self-incrimination affects a number of these witnesses and Counsel to the Inquiry has already raised this but, fundamentally for us, the foundation stone for that, of course, would be the expert evidence of Mr Atkinson. You will note – I think the Irish expression is “cute” – how cute Mr Marsh was in drawing concerns or briefing, as it were, against that report, by saying that the expert didn’t have all the relevant information. Again, a grim irony in the context of this case or this Inquiry.
So it is for all of those reasons, sir, expressing as I do, our heartfelt gratitude to you, sir, and to your Inquiry Team, and recognising as well that you have done all you could to avoid this but that, nevertheless now, there must be sanctions in the background to ensure compliance, but it would be unreasonable to have that approach just imposed now upon the Post Office. They must be given further time in order to satisfy you that we can proceed again in September without another calamitous interruption.
Mr Beer: Sir, I think you’re still on mute.
Sir Wyn Williams: I was simply thanking you, Mr Henry, for your submissions.
I understand that the NFSP is present and wishes to make submissions. So I will presume they are next in the batting order.
Mr Beer: That’s right, sir, it’s Ms Watt.
Sir Wyn Williams: Yes. Good morning, Ms Watt.
Submissions by Ms Watt
Ms Watt: Good morning, sir, and thank you for the opportunity to make oral submissions on behalf of the NFSP, in light of the document disclosure issues and related failures on the part of the Post Office.
While the present hearing on these issues arises from the recent evidence and correspondence in late June and early July, the NFSP notes with considerable and serious concern that this most recent episode follows on from ones earlier in the year, also since 2022 and even since 2021, all as very clearly narrated in the Chair’s directions to the Post Office.
Sadly, the NFSP has to submit here that, in light of its own ongoing and regular dealings and negotiations with the Post Office, which it has to have, the present situation just does not come as a surprise.
The NFSP recognises that the immediate practical issues facing the Inquiry and its Core Participants is whether or not to continue with the evidence hearings as scheduled and to hear from important witnesses, in the knowledge that the Post Office has not disclosed all documents which may be relevant to those witnesses. This inevitably impacts on the questions which may or can be asked of those witnesses and the evidence they will give.
The NFSP is concerned that the present situation caused by the Post Office’s document disclosure failures affect the Inquiry’s ability to get to the whole truth of what actually took place and how and why it took place.
The NFSP firmly believes that Phase 4 of the Inquiry is a critical one. It is the one where the actions taken by the Post Office against subpostmasters and others, the policy making, the audits, investigations, the civil and criminal proceedings, knowledge of and responsibility for failures and investigation and disclosure, are front and centre. The NFSP, along with other Core Participants and the general public, wants to know how the organisation which it trusted broke that trust.
The witnesses the Inquiry is due to hear from this week are – and the following week, but particularly this week – in the NFSP’s submission, critical to understanding what happened and why to so many postmasters, assistants and Crown Office employees, whose lives have been totally destroyed by Horizon and the actions of the Post Office, all as set out by counsel for the Core Participants already this morning.
These witnesses include the Post Office Head of Security and the Head of the Criminal Law Team. They are key witnesses.
The NFSP appreciates that all parties to the Inquiry will have spent time and effort in preparation for this set of evidence hearings and, as it set out in its opening statement, last year, it’s committed to assisting the Inquiry in any way it can and, at this point, the NFSP simply wishes to thank you, sir, and the Inquiry Team for all that you have done so far.
But it is a small organisation of just over 20 employees and with many ongoing responsibilities to the postmasters of today, including the ongoing business relationship it requires to have with the Post Office to ensure the proper remuneration and treatment of postmasters.
But while it may be small, it has nonetheless dedicated itself to the work of the Inquiry, providing thousands of documents both in response to Rule 9 requests and voluntarily, which it hopes will assist the Inquiry.
The NFSP has, as with all other parts of the Inquiry to date, dedicated time and effort to responding to the Inquiry’s requests, redaction requirements, reviewing documents on Relativity, reviewing witness statements, drafting and submitting many Rule 10 questions for those witnesses, appreciating others have done that too.
While many of the questions submitted have been adopted into questioning by counsel for the Inquiry and with geography and resources preventing regular in-person attendance at the Inquiry, the NFSP and its legal representatives have nonetheless watched every evidence session on the live link and prepared closing submissions.
That’s because, for the NFSP, along with all of the other Core Participants, it is of real importance that the Inquiry gets to the truth of all that went wrong with Horizon from start to finish. This is because, along with so many others, the NFSP at the time trusted the Post Office, believed what it said when it said that Horizon was the right system to ensure the viability of post offices across the UK and that it worked properly.
As it turned out, the NFSP and everyone else was misled and that is why the evidence of these forthcoming witnesses who were central to prosecution and decisions is important to all.
If there are other documents out there which are relevant, which are important, which may change the questions to be asked, which may change the evidence to be given, but which the Inquiry has not yet been given by the Post Office, the question may well be asked: how can the Inquiry get to the truth of what happened? The NFSP believes the evidence of the forthcoming witnesses is of critical importance in getting to that truth.
What is also of the gravest concern to the NFSP is that, despite all the recent explanations from the representatives of the Post Office and perhaps a late realisation on the part of the Post Office that the game is well and truly up in terms of disclosure and this Inquiry, it is said in the most recent correspondence for the Post Office – at least I think that was the most recent correspondence, I have slightly lost track – the one of 7 July, paragraph number 5, that says no one knows how or why all this has happened or who might be responsible for it and, of course, it’s not believed to be anyone at the Post Office who gave such instructions.
Unfortunately, this has a hollow ring for the NFSP, and it sounds like for others too this morning, in the light of all that has been uncovered to date by the Inquiry. The Inquiry may excuse the NFSP, in light of its experience of what it was repeatedly told about Horizon at the time, for finding all of this difficult to accept from the Post Office.
The NFSP understands it will be important for the Inquiry to establish just how all of this document disclosure issue has happened, due to the impact on the Inquiry’s work, the Core Participants’ work and the public interest. It is actually concerned that the disclosure issue and all that has come out threatens to become a Horizon-type issue all of its own.
The NFSP has sadly come to the conclusion that the current disclosure issues are reflective of the Post Office of today and that it is not much different to the one which oversaw the Horizon scandal.
The NFSP has firsthand experience of the Post Office of today. Perhaps one of the organisations as part of this Inquiry that actually does have to deal with the Post Office, week in and week out. Horizon, what we might call “Bonus Gate”, the recent FOI disclosure which revealed the racist language and attitudes behind the scenes and now the disclosure issues feed into a real concern that what is said and done by the Post Office today cannot, for the NFSP at least, be taken at face value.
It has to work with the Post Office to bring issues facing postmasters today, such as remuneration and financial resources, consultation on new contracts and much more. But at almost every turn, the NFSP finds things change, important dates change, there are reductions in leavers’ compensation payments for around 130 postmasters of about 60 per cent, addendums are added to contracts on what the Post Office states it no longer needs to consult with the NFSP on.
Therefore, any trust that remains in the Post Office of today, and that is very little, and its willingness to change its culture is very considerably foundering, if not gone.
We appreciate that some of these matters are not directly related to the document disclosure issue which the Inquiry is looking at right now but it is said, in order to demonstrate the wide-ranging impact that the events have in relation to the Post Office, which have unfolded, particularly at the Inquiry during 2023 and the effect they have on the work of the NFSP on behalf of today’s postmasters.
So for many, nothing really seems to change.
An important feature for the NFSP of all that has gone wrong in the past and in the present is governance. While the Inquiry has heard from a series of government ministers who at various times have had responsibility for the Post Office, the NFSP believes that recent events, in particular Bonus Gate, demonstrates a particular and ongoing failure in governance as does the present disclosure situation.
This week, the NFSP will be at a Westminster Hall cross-party debate being hosted by Marion Fellows MP on the management culture of the Post Office, in light of the recent revelations on Bonus Gate and the non-disclosure of documents to this Inquiry. For the NFSP, the question which might well be asked – and potentially for others – is: is this is an organisation that is truly fit for purpose? Might there not be a need to rip it up and start again?
Ultimately, the NFSP understands the chair will have to make decisions which combine the need to make progress with the need to ensure the best evidence is obtained. There is a real concern about the fact there are other documents which could well have an impact on the questioning of witnesses and that will, in turn, have an impact on the evidence to the Inquiry. It’s understood that witnesses can be called back. However, for the NFSP and others, the forthcoming witnesses represent such an important part of the Horizon story, there is a strong argument that it may be better to wait, gather in all the evidence and then question these witnesses.
For those reasons, the NFSP considers, on balance, that the preferable position is for the witnesses and participants to have access to all documents ahead of evidence giving for such a critical chapter and therefore to adjourn the Inquiry at this time.
Simply just in conclusion, sir, we would adopt the position in relation to Duncan Atkinson KC that his evidence ought to be heard when the document disclosure issues are resolved, in order to avoid any potential criticism that he did not have all of the necessary material that he needed to reach his conclusions.
The NFSP supports the proposition put forward by counsel earlier today of calling the CEO and other relevant parties to give evidence in the meantime, regarding what is happening, how it has happened and what the involvement of the Post Office officers has been in that.
If I can be of any further assistance, sir, please do let me know.
Sir Wyn Williams: No, thank you very much, Ms Watt. That’s absolutely clear.
Does that conclude the submissions on behalf of any Core Participant who wishes to speak?
Mr Beer: Yes, it does, sir.
Sir Wyn Williams: Do you wish to say anything, Mr Beer?
Mr Beer: No thank you, sir.
Sir Wyn Williams: Very well.
In the light of the oral submissions which I have heard, I am clear that the correct course is to adjourn the hearing of evidence in what I will call weeks 2 and 3, and, for the avoidance of doubt, that includes adjourning the evidence of Mr Atkinson KC.
There is at least a possibility that the direction which I issued in relation to the witnesses who are due to give evidence in week 4 can be complied with and, for that reason, I will keep under review whether or not we sit in the last week of July. I won’t delay a decision too close in time to it but, for the moment, I do wish to preserve the possibility that we don’t lose that week.
Mr Stein, in particular, raised a number of issues which he asked me to consider, which can be considered ancillary to the direction which I’ve just made, and I propose to deal with those matters in writing, as I will give reasons for my primary decision in writing, namely to adjourn, as I’ve indicated.
So to recap, so that everyone is clear, we will not hear evidence from any of the witnesses scheduled for this week and next week in those weeks. They will be rescheduled until after the summer break.
I will keep under review whether or not we sit in the last week of July to hear some or all of the witnesses scheduled for that week and I will give written reasons for those decisions, together with my decision on what I have called the ancillary matters, raised primarily by Mr Stein but supported to a degree by other members of the bar who have spoken.
I think that is clear, Mr Beer, but if it’s not, please tell me.
Mr Beer: It is, sir, save that Alan Lusher, who is a week 4 witness, should be treated effectively as a week 2 and 3 witness.
Sir Wyn Williams: Right. Thank you for that correction. I will make that clear in my written record of what I’ve said and my reasons.
Mr Beer: Thank you very much, sir.
Sir Wyn Williams: Is Mr Hayward actually in the building?
Mr Beer: He is, sir. He’s in the witness waiting room at the moment.
Sir Wyn Williams: Well, then please convey my apologies to him that he has been brought here but he won’t be giving his evidence.
Mr Beer: Sir, we certainly will. As you know, at your direction, all of the witnesses for weeks 2 and 3 had been contacted, and informed that today’s hearing was taking place and that it may have an effect on the ability of the Inquiry to take their evidence over the next two weeks. We’ll set about now contacting them and telling them of the outcome of today’s hearing.
Sir Wyn Williams: Thank you very much, Mr Beer.
I think it’s probably better that I say what I need to say about this whole saga in writing and after reflection, rather than produce what might be newsworthy but ultimately not sensible.
Mr Beer: Thank you very much, sir.
Sir Wyn Williams: So we will adjourn, to use the old-fashioned language of the courts, I guess, to a date to be notified to the parties, since there is a degree of uncertainty about what will happen next.
Mr Beer: Yes. It may be that it’s Tuesday, 25 July. That’s the date for Mr Lusher but we may be able to fill it with some other evidence.
Sir Wyn Williams: Sure, yes. All right then. Well, unless – let’s leave it in this way: that unless my directions make it clear that that is not going to happen, everyone should, for the moment, proceed on the basis that there may be a hearing on 25 July.
Mr Beer: Yes. Thank you, sir.
Sir Wyn Williams: Very well. That’s it. Thank you very much.
Mr Beer: Thank you, good morning.
(12.03 pm)
(The hearing adjourned until a date to be confirmed)