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Statement by Chair relating to written Closing Submissions
Post Conviction Disclosure
1.
The expert evidence commissioned by the Inquiry (the reports of Duncan
Atkinson KC) does not consider the duty (if any) imposed upon a prosecutor to
disclose to a defendant material about which the prosecutor becomes aware
after that defendant has been convicted of a criminal offence. I did not (and still
do not) consider such evidence to be necessary since I consider that the duty is
sufficiently described and explained in the decision of the Supreme Court
in Nunn, R (on the application of) v Chief Constable of Suffolk Constabulary 2015
AC 225. In summary, that case confirms that the duty imposed upona
prosecutor is to disclose any material to a convicted defendant which might cast
doubt upon the safety of the conviction.
I appreciate that the decision in Nunn was handed down by the Supreme Court
in 2014. However, my provisional view is that the duty as described by the
justices (summarised by me above) had existed and had been understood to
exist from at least 1 January 2000 and that all prosecutors knew or should have
known of the existence of the duty throughout the whole period of time under
consideration by the Inquiry.
I would be grateful to Core Participants if, in their written closing submissions,
they indicate whether they agree or disagree that prosecutors were obliged to
comply with the duty of disclosure as described in Nunn from 1 January 2000 at
the latest. If they agree a sentence to that effect will suffice. If they do not agree,
they are asked to make submissions as to nature of the duty of disclosure
following conviction which was and/or is imposed upon a prosecutor in the
period between 1 January 2000 and the publication of the decision in Nunn.
I also invite written submissions on behalf of all Core Participants as to the duty
(if any) of Post Office Limited to disclose the advice (or the substance thereof) of
Mr Simon Clarke dated 15 July 2013 to convicted postmasters and/or other
persons convicted on the basis of Horizon data. Those who contend that the
advice/substance of the advice should have been disclosed should explain (i)
why such disclosure should have been made; (ii) the extent of disclosure, if not
the whole advice; (iii) to which convicted persons i.e. to all persons convicted on
the basis of data produced by Horizon or only those convicted on the basis of
oral and written evidence of Mr Gareth Jenkins; (iv) when such disclosure should
have been given. Those who contend that there was no disclosure obligation at
all should explain why.
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The expert evidence of Jonathan Laidlaw KC obtained by Post Office Limited
5.
On 29 February 2024, in a written statement published on the Inquiry’s website, I
made a ruling to the effect that I would not admit into evidence reports prepared
by Mr Jonathan Laidlaw KC on behalf of Post Office Limited. Additionally, I said
that I would not take account of those parts of the written submissions made on
behalf of Post Office Limited at the conclusion of Phase 4 of the Inquiry which
were based upon Mr. Laidlaw’s reports. My reasons for reaching those
conclusions were set out in the statement of 29 February 2024.
By letter dated 23 March 2024 the recognised legal representatives of Post Office
Limited asked me to reconsider my ruling. In effect, the letter invites me to admit
the reports into evidence and take account of the written submissions which
have been made on behalf of the Post Office Limited about their contents. In
summary, the letter suggests that my ruling of 29 February 2024 failed to take
into account relevant considerations and that, in any event, I had created a
legitimate expectation that I would admit Mr Laidlaw’s reports into evidence and
take into consideration that evidence and the submissions of the Post Office
which were based upon it.
. The foundation for these contentions is said to be discussions which took place
between Mr Beer KC and Ms Gallafent KC on 18 August 2023 and 1 September
2023. The Post Office contend that in these discussions Mr Beer KC conveyed
views to Ms Gallafent KC which I had expressed to him and which Ms Gallafent
KC then conveyed to those instructing her in an email of 1 September 2023. The
relevant part of the email is quoted verbatim in the letter of 23 March 2024.
For the purpose of this ruling, I proceed on the basis that the email sent by Ms
Gallafent KC to her instructing solicitor on 1 September 2023 accurately records
what she was told by Mr Beer KC and that he accurately conveyed to her what I
had said to him. In summary, I am recorded as saying:- (1) the Inquiry would
receive Mr Laidlaw’s report if the Post Office sent it to the Inquiry and provide it to
Mr Atkinson KC so that he could consider “whether it affected any of his views”
but (2) I was not minded at that stage to formally admit the report into evidence
or call Mr Laidlaw to give evidence although (3) that the report could be used by
the Post Office to “form the basis of their submissions in due course”.
I simply do not see how the observations attributed to me could be the
foundation for a legitimate expectation that I would admit into evidence a report
written by Mr Laidlaw KC that was to be provided to the Inquiry by the Post Office
at some future time. As of 1 September 2023 I had not seen and considered any
report prepared by Mr Laidlaw KC and I had communicated to the Post Office
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expressly, via leading counsel, that I was not minded to formally admit as
evidence such report as was disclosed.
On 20 September 2023, the Post Office disclosed to the Inquiry a report from Mr
Laidlaw KC (his “first report”). This disclosure took place on 20 September 2023 -
approximately 2 weeks before Mr Atkinson was due to give oral evidence to the
Inquiry. On the same date Mr. Laidlaw’s first report was disclosed to all Core
Participants (including the Post Office attached to an email which included the
following:
“Please be advised that the Inquiry has disclosed a Review of POL Private Prosecutions,
undertaken by Jonathan Laidlaw KC (POL 00137190). The review was commissioned by
POL and was disclosed to the Inquiry voluntarily. It has been sent to the Inquiry’s
prosecutions expert Duncan Atkinson KC, however, the Chair is not presently admitting
it into evidence.”
11.
12.
13.
14
The email to Core Participants quoted above contains a clear statement that I
was not prepared (at that time) to admit the first report prepared by Mr Laidlaw
KC as evidence in the Inquiry. Further, it informed Core Participants that the
report of Mr Laidlaw KC had been sent to Mr Atkinson KC. In my view all Core
Participants would have realised that the report was being sent to Mr Atkinson
KC so that he could consider it and, if necessary, adjust his evidence to take
proper account of it.
The email of 20 September 2023 was silent as to whether Mr. Laidlaw’s first
report could be used by the Post Office “to form the basis of submissions in due
course.” Yet, there was no request from the Post Office for clarification. I find it
very difficult to accept that the Post Office genuinely considered that it could
place reliance upon the discussion which it maintained had occurred between
Mr Beer KC and Ms Gallafent KC when the email was silent on the topic but dealt
with other matters raised in the discussion. However, as will become apparent
from paragraph 19 below, I need not reach any conclusion upon this narrow
issue.
Mr Atkinson KC gave oral evidence to the Inquiry on 5 and 6 October 2023. He
confirmed that the Inquiry had sent him Mr Laidlaw’s first report. The extent, if at
all, that the oral evidence he gave was influenced by the first report of Mr Laidlaw
can be ascertained from the transcript and/or a comparison between the
transcript of his oral evidence and his written report to the Inquiry (disclosed to
Core Participants on 30 May 2023).
. At no stage during the oral hearings in Phase 4 which followed 5 and 6 October
did I indicate that I had changed my mind about admitting into evidence Mr
Laidlaw’s first report.
15.
16.
17.
18.
19.
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In the letter of 15 March 2024, the Post Office acknowledge that it did not make
an application to me to the effect that I should admit into evidence Mr Laidlaw’s
first report either before Mr Atkinson gave his evidence on 5 and 6 October 2023
or during the course of the Phase 4 hearings. Indeed, I must stress that Post
Office did not apply to me to admit such evidence until received the letter of 15
March 2024. Further, I can think of no basis upon which the Post Office could
reasonably believe that I was prepared to admit Mr Laidlaw’s first report into
evidence without an application being made to me after I had said in terms that I
was not prepared to admit it as evidence.
Mr Atkinson KC produced a second report which was disclosed to all Core
Participants on 29 November 2023. He gave oral evidence about the contents of
that report and some additional matters on 18 and 19 December 2003. While,
earlier, the Post Office had indicated that Mr. Laidlaw KC would write a second
report to deal with matters raised by Mr Atkinson KC in his second report, no
application was made to me to admit a second report from Mr Laidlaw KC before
I received the letter of 23 March 2024. More detail as to the sequence of events
surrounding the Post Office’s attempt to rely upon Mr Laidlaw’s second report
are set out in my ruling of 29 February 2024 and need not be repeated.
For the avoidance of any doubt, I have never suggested either to Core
Participants by written notification or to the Post Office in writing or orally via Mr
Beer KC that I would be prepared to admit into evidence the reports prepared by
Mr Laidlaw KC. I reject the contention that I created a legitimate expectation that
I would admit those reports into evidence. I reject, too, the suggestion that I
failed to take into account material considerations when reaching the
conclusions I expressed in my ruling of 29 February 2024.
In the circumstances I decline to admit Mr Laidlaw’s reports as evidence within
the Inquiry.
That said, does fairness demand that I afford to the Post Office and any other
Core Participant who is so inclined the opportunity to make written submissions
about the written and oral evidence given by Mr Atkinson KC to the Inquiry? The
answer to that question is yes. I acknowledge that if it was my intention that no
challenge to Mr Atkinson’s evidence was to be permitted, I should have made
that clear in the email sent to Core Participants on 20 September 2023 when Mr
Laidlaw’s first report was disclosed. Furthermore, it does not necessarily follow
from my decision to refuse to admit Mr Laidlaw’s reports that I am bound to
accept each and every aspect of Mr Atkinson’s written and oral evidence. Mr
Atkinson’s evidence is made up of expert opinion about and factual description
of the law and practice relating to the conduct of prosecutions in England and
Wales. By virtue of my career as a barrister and judge I have considerable
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expertise in this area of law and practice. I am confident that I can evaluate
written submissions made by those who choose to make them about Mr
Atkinson’s evidence without there being the need for any additional evidence.
20. The Post Office has, in effect, already made such submissions in its phase 4
closing submissions albeit by reference to the evidence of Mr Laidlaw. It will not
be difficult for it to produce a section of its written final submissions to include
any criticism of Mr Atkinson’s evidence which it wishes to make. All other Core
Participants have within their legal teams sufficient expertise to be able to align
themselves with Mr Atkinson’s views or dispute them - as the case may be.
2
.I stress, however, that my willingness to accept written submissions about Mr
Atkinson’s evidence should not be taken as an invitation to lengthen the written
closing submissions. All Core Participants are reminded of the unwavering
stance I have adopted throughout this Inquiry to the effect that the findings of
fact and the conclusions of law made by the Court of Appeal (Criminal Division)
in Hamilton and others are my starting point and cannot be questioned. That
means that in close to 100 cases which were heard between 2000 and the end of
2013 in Crown Courts in England and Wales, the Court of Appeal has found that
there were such egregious failures of investigation and/or disclosure on the part
of the prosecutor that all the convictions in those cases should be quashed. I
doubt whether a minute examination of each aspect of Mr. Atkinson’s evidence
will be of much consequence or assistance to me compared with that
inconvertible state of affairs.
_—
Sir Wyn Williams
13 November 2024