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Witness Name: Benjamin James
Cuthbert Tidswell
Statement No.: WITN11290200
Dated: 12 December 2024
POST OFFICE HORIZON IT INQUIRY
SECOND WITNESS STATEMENT OF BENJAMIN JAMES CUTHBERT
TIDSWELL
Introduction
1. My name is Benjamin James Cuthbert Tidswell. I was a Non-Executive
Director on the Post Office Limited (“Post Office”) Board from 27 July 2021
to 8 July 2024.
2. I make this statement to comply with a request made on 27 November 2024
by the Post Office Horizon IT Inquiry (“Inquiry”) for a witness statement
pursuant to Rule 9 of the Inquiry Rules 2006 (“Rule 9 Request”). This is my
second statement to the Inquiry. My first witness statement is WITN11290100
and is dated 27 August 2024.
3. I have prepared this statement following meetings with my solicitors, in
respect of which I intend no waiver of privilege. Save where otherwise stated,
I make this statement from facts within my own knowledge, and I believe them
to be true. Where I refer to information supplied by others, I identify the source
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of that information, and I believe it to be true to the best of my knowledge and
belief.
Mr Staunton’s evidence
4. While I was not asked to give oral evidence at the Inquiry, I have tried to keep
myself appraised of the ongoing hearing for phase 7 of the Horizon IT Inquiry
(“Inquiry Hearing”). As part of this, I reviewed the transcript of Mr Staunton’s
oral evidence at the Inquiry Hearing (“Transcript”) [Transcript of Mr
Staunton’s oral evidence at the Horizon IT Inquiry Hearing -
INQ00001189]. In doing so, I identified that Mr Staunton had given evidence
about statements attributed to me at the Post Office Board meeting on 24
January 2023. I have also seen that Mr Staunton gave similar evidence in his
first written witness statement (“Staunton 1”) [ First Witness Statement of
Henry Eric Staunton - WITN11410100].
5. Mr Staunton’s evidence was that I had said that “the Company [the Post
Office] had a duty to ensure that people who were guilty remained guilty”
[WITN11410100 at paragraph 49 and INQ00001189 at page 98 line 6 to
page 100 line 2 and page156 line 21 to page 158 line 2]. He then went on
to suggest that this reflected a view that the “the majority of post masters were
“guilty as charged” [ WITN11410100 at paragraph 49]. As I explain below, Mr
Staunton has taken my statements out of context, with the consequence that
his evidence on this point is misleading.
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6. On 12 November 2024, my solicitors Enyo Law LLP (“Enyo”) wrote to the
Inquiry and to the core participants, explaining that Mr Staunton’s evidence on
this point was misleading. In doing so, they explained that the statement
reflected legal advice provided to the Post Office Board, rather than being an
expression of my own personal views regarding postmasters [Letter from
Enyo to the Inquiry copying in core participants dated 12 November
2024 — WITN11290203].
7. The letter also stated that I would be willing to assist the Inquiry by providing a
further witness statement on this point. It also asked that, if a further witness
statement was requested, the Inquiry provide me with POL00448713 [extract
from the 24 January 2023 Post Office Boad meeting minutes -
POL00448713] and POL00448620 [24 January 2023 Post Office Board
meeting minutes - POL00448620], being the copies of the 24 January 2023
Post Office Board meeting minutes to which Mr Staunton had referred. This
was particularly important because the fact that the Board had received legal
advice at this meeting meant that relevant sections of the minutes were likely
to be redacted to protect legal privilege. Further, while I had been provided
with a redacted and an unredacted version of the minutes by the Post Office,
it was unclear whether the same redactions had been applied to the version of
the document that Mr Staunton referred to and which the Inquiry had seen
(there were in fact inconsistencies in the way redactions were applied
between POL00448713 and POL00448620).
The Rule 9 request and correspondence regarding redactions
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10.
11.
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On 27 November 2024, I received the Rule 9 Request from the Inquiry. The
Rule 9 Request asked me to provide a witness statement in relation to the
issues with Mr Staunton’s evidence set out in Enyo's letter of 12 November
2024.
The Inquiry also provided me with POL00448713 and POL00448620, the
copies of the minutes of the 24 January 2023 Board meeting referred to by Mr
Staunton. POL00448620 is the complete set of minutes from the 24 January
2023 Board meeting. POL00448713 is an extract from these minutes (it
contains pages 8 and 9 of the 17-page document). Given that POL00448620
is a complete set of the minutes, when I refer to the minutes I am referring to
POL00448620, unless I specify otherwise.
On the same day, the Inquiry also wrote to the Post Office inviting it to
consider whether it wished to remove any redactions from these documents.
On 28 November 2024, the Post Office responded to the Inquiry, agreeing to
remove the redactions which it had applied to item 6.4 of POL0044873. Item
6.4 of the minutes had not been redacted in POL00448620, so it had already
been provided to the Inquiry in unredacted form. The Post Office also agreed
to remove some, but not all, of the redactions applied to item 3.1 of
POL00448620 (item 3.1 was not included in POL0044873). The Inquiry has,
therefore, not been provided with item 3.1 of the minutes in unredacted form.
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12.
13.
14.
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On 29 November 2024, Enyo wrote to the Post Office asking it to reconsider
this approach. In doing so, Enyo explained that the statement attributed to me
in item 6.4 of the minutes was a reference to legal advice contained in the part
of item 3.1 which remained redacted. Enyo explained that the Post Office’s
approach would not allow the Inquiry to see the legal advice that I was
referring to and would therefore not allow it to properly contextualise and
understand the statement attributed to me at item 6.4 of the minutes. Enyo
also noted that the Post Office's claim to privilege in the part of item 3.1 which
remained redacted had likely been waived by the reference to that advice in
item 6.4 to the Inquiry [Letter from Enyo to Post Office copying in the core
participants dated 29 November 2024- WITN11290202].
The Post Office responded to this letter on 2 December 2024. Unfortunately, it
did not agree to remove the redaction in the relevant section of item 3.1 of the
minutes [Email chain between the solicitors for the Post Office and Enyo
— WITN11290201].
While this approach limits the Inquiry’s ability to contextualise and understand
my statement at item 6.4 of the minutes, I have nevertheless endeavoured to
assist the Inquiry by providing context to the legal advice in item 3.1 of the
minutes and my subsequent reference to that legal advice in item 6.4 of the
minutes. In doing so, I have been careful to avoid referring to the substance of
that advice and I do not intend to waive any privilege to which the Post Office
may be entitled in relation to the minutes.
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The 24 January 2023 Post Office Board Minutes
15.
16.
17.
By way of context to the board minutes of 24 January 2023, the Remediation
Committee’ met on 19 January 2023 and the item at 3.1 of the Board minutes
reflected an action allocated to me, as Chair of the Remediation Committee,
to brief the Board on issues arising from an appeal of conviction by a
postmaster. As the postmaster’s conviction had been entered in the
Magistrate’s Court, the appeal lay to the Southwark Crown Court.
As the Inquiry will be aware, Crown Court appeals are determined by a
different process from that applying to appeals of criminal convictions to the
Court of Appeal. In the Crown Court, the onus is on the prosecutor (if it
opposes the appeal) effectively to prosecute the convicted appellant again.
That process brings into consideration the Code for Crown Prosecutors (the
“Code”), which provides for a two-stage test in relation to decisions about
prosecutions:
a. An evidential test, which assesses the quality of the evidence and
determines whether there is a realistic prospect of a conviction.
b. A public interest test, which operates where the evidential test has
been met. I understood that this required a balancing of various factors,
which were relatively limited in their scope. For example, I understood
‘ At that time known as the Historical Remediation Committee
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18.
19.
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that the Post Office was not entitled to take into account its own view of
the prospects of success (beyond the advice it received about the
evidential test) or any concerns about the impact of a prosecution on its
own reputation.
The Post Office Board had some time earlier expressed its extreme
discomfort with the idea that the Post Office should find itself in the position of
conducting any prosecution, regardless of the circumstances. That is reflected
in the comment by one of the Board members in item 3.1 of the Board
minutes. It was a view shared by the Remediation Committee members.
However, my understanding was that the Post Office was nonetheless bound
to apply the Code and that it had duties under the Code (because it had a
legacy role, having been the original prosecutor) to oppose an appeal (that is,
to conduct a fresh prosecution) if the evidential test and the public interest test
were both met.
In accordance with previous practice, the evidential test in relation to this
particular appeal had been assessed by external counsel from the senior
criminal bar and there had been a debate at the Remediation Committee
meeting on 19 January 2023 as to the significance of that advice. We had
discussed in particular whether it was open to the Post Office, in properly
implementing the Code, to disagree with or otherwise challenge the advice of
counsel. My view (which was I think the consensus view once the matter had
been fully aired) was that the Post Office was entitled to challenge the advice
and, if it wished, to seek a second opinion.
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20.
21.
22.
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It did however seem to be the case that if the Post Office received consistent
advice that the evidential test was met then it had little choice but to accept
that advice and the Code then anticipated that the Post Office would conduct
a re-prosecution, unless the public interest test determined otherwise. Given
the relative narrowness of the public interest test, that might well mean that
the Post Office could be committed to re-prosecuting a postmaster if the
evidential test was met.
These were the concerns that the Remediation Committee members had
identified at the 19 January 2023 meeting and which I explained to the Board
at the 24 January 2023 meeting. In short, my understanding was that there
was a duty, under the Code, to prosecute if the evidential test was met, unless
the public interest test was otherwise engaged, which may well not be the
case in the appeal under consideration.
In the last sentence of item 3.1 of the Board minutes (which remains redacted
as a result of the Post Office maintaining its claim to privilege in this part of
the document), I recorded the legal advice the Remediation Committee had
received on this point. The passage towards the end of item 6.4 of the
minutes (which is referred to by Mr Staunton), records me referring back to
that advice and to the discussion recorded at item 3.1. The reference to a
“duty” was to my understanding of the Post Office’s obligations under the
Code, where the evidential test had been met and the public interest test had
not otherwise engaged.
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23.
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It is unfortunate that the minutes use the language they do, in particular by
referring to people being “guilty”. I cannot recall if I used that expression on
this occasion, or whether the person who drafted the minutes used the term
as shorthand. I can say that my usual practice was to refer to the test
established by the Court of Appeal in Hamilton & Ors v Post Office, rather
than to use that more emotive (and inaccurate) term.
Mr Staunton’s rtion that I considered that the majority of postmasters
were “guilty as charged”
24,
25.
As set out above, the statement attributed to me at item 6.4 of the minutes
was a reference to legal advice received by the Post Office Board recorded at
item 3.1 of the minutes. It was not an expression of my personal views about
postmasters.
However, given Mr Staunton’s evidence on this point, I would like to note, for
the avoidance of any doubt, that it was not and has never been my view that
the majority of postmasters were “guilty as charged”. I also disagree with the
suggestion in Mr Staunton’s evidence that he raised this issue (that is, my
statements at the meeting or any perception by him about my views on
postmaster culpability) with me after the 24 January 2024 Post Office Board
meeting (see for example INQ00001189 at page 158 lines 6 to 8). This did not
happen, either immediately after the meeting or at any other time. Mr
Staunton’s evidence on this point is simply untrue.
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Statement of Truth
I believe the content of this statement to be true.
(2 Deceuhoy A024
Dated:
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Index to Second Witness Statement of Benjamin James Cuthbert
Tidswell
No. I URN Document Description Control Number
1 INQ00001189 I Transcript of Mr Staunton’s oral I INQ00001189
evidence at the Horizon IT
Inquiry Hearing
2 WITN11410100 I First Witness Statement of Henry I WITN11410100
Eric Staunton
3 WITN11290203 I Letter from Enyo to the Inquiry WITN11290203
copying in core participants
dated 12 November 2024
4 I POL00448713 I Extract from the 24 January 2023 I POL-BSFF-
Post Office Board meeting WITN-035-
minutes 0000011
5 POL00448620 I 24 January 2023 Post Office POL-BSFF-
Board meeting minutes WITN-021-
0000006
6 I WITN11290203 I Letter from Enyo to Post Office I WITN11290202
copying in the core participants
dated 29 November 2024
7 I WITN11290201 I Email chain between the WITN11290201
solicitors for the Post Office and
Enyo
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