1 Thursday, 6 July 2023 2 (10.00 am) 3 Administrative Discussion 4 MR BEER: Good morning, sir. Can you see and hear 5 me? 6 SIR WYN WILLIAMS: I can, yes. 7 MR BEER: Sir, you'll recall that Gareth Jenkins was 8 previously scheduled to give evidence on 4 and 9 5 May this year but, very shortly before that 10 time, he indicated that he had taken the 11 decision not to rely on the privilege against 12 self-incrimination and would accordingly provide 13 the Inquiry with a witness statement and answer 14 the questions that the Inquiry had of him. As 15 that happened very shortly before Mr Jenkins was 16 due to give oral evidence, his evidence had to 17 be postponed from 4 and 5 May to allow time for 18 the provision and then the disclosure of his 19 witness statement. 20 Mr Jenkins duly provided a witness 21 statement, it's 75 pages long, addressing the 22 Inquiry's Phase 3 questions. His Phase 3 oral 23 evidence was therefore rescheduled for today and 24 tomorrow with him returning to the Inquiry after 25 the summer break to give evidence about Phase 4 1 1 issues. 2 Events have happened in the last two days 3 which mean that it is now not appropriate for 4 Mr Jenkins to be called to give evidence today 5 and tomorrow. Instead, his evidence will be 6 taken on Phase 3 and Phase 4 issues after the 7 summer break and I will explain why. 8 You'll recall that in his evidence on 9 Tuesday, Post Office's group general counsel, 10 Mr Ben Foat, said -- and I'm summarising -- that 11 what he described as a disclosure remediation 12 process was being undertaken by the Post Office 13 following the revelation of two failings in Post 14 Office's disclosure: firstly, the failure to 15 look at documents within a family to see whether 16 those documents were responsive to the Inquiry's 17 disclosure requests; and, secondly, as a result 18 of a de-duplication exercise, a failure to 19 include within the pool of documents over which 20 searches were undertaken, documents which would 21 have, in fact, been responsive to our disclosure 22 requests and which were themselves within 23 families of other documents which were 24 responsive to our disclosure requests. 25 This remediation exercise, as he called it, 2 1 involved a triage process, so that documents 2 that may be relevant to our Phase 4 witnesses 3 and, in the case of Mr Jenkins, relevant to him 4 in the context of Phase 3, were to be 5 prioritised by the Post Office in the order in 6 which witnesses are being called this week and 7 over the next three weeks. 8 As I mentioned when questioning Mr Foat, 9 this late disclosure process meant that Mr Blake 10 was given some documents only the night before 11 Mr Ferlinc gave evidence that related to him in 12 some way. 13 The Post Office sent us seven documents the 14 night before Mr Marsh gave evidence yesterday 15 that related to him in some way. 16 At the same time, the Post Office gave us 95 17 documents that related to Mr Jenkins in some way 18 that are responsive to our earlier disclosure 19 requests from last year and ought previously to 20 have been disclosed. The Post Office apologised 21 to the Inquiry for sending us these documents so 22 late. 23 In the time available, we have had the 24 barest of opportunities to read and analyse 25 these documents that relate to Mr Jenkins, less 3 1 still to consider which of them should be 2 disclosed to Core Participants, giving them 3 a reasonable opportunity to read and to analyse 4 them and to send their Rule 10 questions to us. 5 Nor has it afforded any opportunity for 6 Mr Jenkins to read and analyse the documents -- 7 he hasn't even been given them yet -- and to 8 consider them with his own legal 9 representatives. 10 SIR WYN WILLIAMS: I should say, Mr Beer, I haven't 11 seen them either. 12 MR BEER: No, exactly. 13 What we can say is that the documents 14 contain relevant information that we would wish 15 to ask Mr Jenkins about. They contain relevant 16 information which Core Participants should have 17 the opportunity to see and to formulate 18 questions of Mr Jenkins, and which Mr Jenkins 19 could have the opportunity to see before he 20 enters the witness box. 21 One of the responsibilities of counsel to 22 an Inquiry acting neutrally and independently is 23 to seek to assist you in ensuring that these 24 Inquiry proceedings are fair to all but 25 especially are fair to the Core Participants and 4 1 to witnesses. Moreover, we wish these 2 proceedings to be conducted in a way that 3 ensures that any conclusions which you reach in 4 your final report, especially conclusions which 5 are critical or damning about an individual or 6 an organisation, are not vulnerable to attack on 7 the grounds that the process which led to them 8 being made was itself unfair. 9 There are three other dynamics relevant to 10 the advice which I gave you, and which you have 11 accepted, that it wouldn't be appropriate to 12 call Mr Jenkins now. 13 Firstly, as I emphasised to Mr Foat when he 14 was giving his evidence, this Inquiry is itself 15 investigating the late or non-provision of 16 disclosure to others by the Post Office in 17 a series of criminal prosecutions that lasted 18 over a decade and the non-disclosure of 19 documents in civil proceedings, and the 20 unfairness that such non-disclosure had on 21 parties and on witnesses. We, of all people, 22 will not entertain the making of the same 23 mistakes of the past whilst simultaneously 24 investigating those mistakes. 25 Second, as is well known, Mr Jenkins is 5 1 under criminal investigation by the Metropolitan 2 Police Service for serious criminal offences 3 relating to his role in the Horizon scandal. 4 The evidence that he gives to this Inquiry may 5 be used in any criminal investigation, 6 prosecutorial decision making or in any criminal 7 proceedings brought against him. 8 Thirdly, the Inquiry's timetable can 9 accommodate a hearing which hears evidence about 10 Phases 3 and 4 from Mr Jenkins later in the 11 year, a hearing that will now probably last four 12 days or so. 13 I should say that, additionally, at 10.32 pm 14 last night, the Post Office wrote to the Inquiry 15 drawing our attention to the fact that, amongst 16 the 95 documents that it had recently disclosed, 17 it had recently identified that one of them was 18 a new document that the Post Office said was 19 "likely to be of significant interest to the 20 Inquiry", and it identified it to us. That was 21 indeed amongst the documents that we ourselves 22 had identified as being of significant interest 23 to the Inquiry. 24 The letter went on, and I'm going to read 25 it: 6 1 "Approach to de-duplication rectification 2 exercise. 3 "The Post Office is conscious of the need to 4 mitigate the potential consequences of 'Item 5 level de-duplication' applied in respect of at 6 least some of the responses to Rule 9 requests. 7 We address now how the Post Office proposes to 8 mitigate any implications of the evidence of 9 Gareth Jenkins and Phase 4 generally. 10 "The Post Office is still developing 11 a methodology to address this issue but, more 12 broadly, anticipates that the approach will need 13 to be tailored according to what is reasonable 14 in all the circumstances, having regard to the 15 Inquiry's protocol on the disclosure of 16 documents and the potential impact of the 17 de-duplication issue in respect of each witness 18 and/or each Rule 9 Request. 19 "The Post Office has made numerous enquiries 20 with its eDiscovery provider, KPMG, as to 21 whether they, in fact, carried out any 22 de-duplication in respect of any documents to be 23 reviewed for responsiveness to Rule 9 questions 24 potentially bearing on the evidence of Gareth 25 Jenkins, but they have been unable to confirm 7 1 this in the time available. 2 "Therefore the Post Office has focused on 3 family documents to duplicates of the 13 4 documents produced by the Post Office which 5 exist on the Inquiry's Core Participant platform 6 and which are referred to by Gareth Jenkins in 7 his second witness statement, being materials 8 that POL's eDiscovery provider might have 9 excluded. There are 4,767 such documents, 10 excluding previously produced documents. Of 11 these documents, POL will review for 12 responsiveness to the Inquiry's Rule 9 Requests 13 and/or interest to the Inquiry. This may also 14 include documents that the Post Office has 15 reviewed previously but not produced to the 16 Inquiry. 17 "From the Post Office's initial high-level 18 review of 600 of the 4,767 documents, it appears 19 that many of them are duplicative of documents 20 that have been already reviewed. However, it 21 has not been possible to confirm this in the 22 time available so the Post Office will re-review 23 any such documents. The Post Office will 24 produce any additional documents as soon as 25 possible and will continue to reflect on how to 8 1 manage this issue as an urgent priority." 2 This is, of course, grossly unsatisfactory, 3 to be told at 10.32 pm on the night before 4 an important witness gives evidence that there 5 are 4,767 documents that are at least 6 potentially relevant to a witness who is being 7 called 11 hours and 28 minutes later, some of 8 which might be duplicates of material already 9 provided to the Inquiry but some of which may 10 not. 11 You'll be issuing directions today, sir, or 12 tomorrow in the light of Mr Foat's evidence that 13 seek to ensure that this kind of interference by 14 the Post Office with the work of the Inquiry 15 does not continue to disrupt and to disturb us. 16 I realise that this news will be upsetting 17 and distressing for many people, some of whom 18 will have made arrangements to travel to the 19 Inquiry for today and tomorrow. All I can say 20 is that we are determined to uncover the truth, 21 but to do so in a way that ensures fairness to 22 all and which leads to conclusions in a report 23 from you which are unimpeachable. 24 We will notify the public and Core 25 Participants in due course when, after the 9 1 summer, Mr Jenkins will give his evidence. 2 Sir, that's all I intended to say this 3 morning. 4 Sir, I think you're still on mute. 5 SIR WYN WILLIAMS: Sorry, Mr Beer. Thank you very 6 much for that full and clear exposition of 7 events which have been unfolding over the hours 8 leading to now. I don't propose to repeat in my 9 own words what you have so eloquently expressed 10 but I cannot help but express my frustration 11 that this has happened at this time. It is 12 a very important time for the Inquiry, and we do 13 not need dislocation. 14 I express my regret to all of those, my 15 apologies, in fact, and regret to all of those 16 who have made special arrangements to either 17 view or be present at today's hearing. Clearly, 18 the evidence which was intended to be heard was 19 of considerable significance and of interest to 20 very many people. 21 Is Mr Jenkins present in the room? 22 MR BEER: No, he's not, sir. In the time available 23 last night, we stood him down from travelling 24 late last night. 25 SIR WYN WILLIAMS: Is he represented today? 10 1 MR BEER: He is. Ms Dobbin is here. 2 SIR WYN WILLIAMS: Well, Ms Dobbin, I wish to 3 express my regret that Mr Jenkins has been 4 inconvenienced in this way. Whatever role he 5 may or may not have played in the events that we 6 are enquiring into, no doubt giving evidence in 7 these circumstances is of considerable strain to 8 him and it is of a matter of regret to me that 9 he has been inconvenienced in this way. 10 MS DOBBIN: I wonder if I could just say a word or 11 two on his behalf. We understand entirely that 12 this is not a position that you or the Inquiry 13 would wish to be in and, of course, it's not 14 a position that he would wish to be in either. 15 Right up until the 11th hour he was preparing 16 and ready to give evidence today. But, of 17 course, we're driven to agree with Mr Beer that 18 it's intolerable and unfair to all Core 19 Participants that a witness should be called to 20 give evidence when there is this volume of 21 evidence that's outstanding and potentially 22 relevant to them. 23 So, regrettable though this position is, it 24 would obviously be unfair for Mr Jenkins to give 25 evidence but unfair to all Core Participants in 11 1 this Inquiry. 2 SIR WYN WILLIAMS: Thank you, Ms Dobbin. The 3 lawyers amongst you may well have observed that 4 I haven't invited any submissions about whether 5 or not his evidence should be postponed. That 6 is for the simple reason that what Mr Beer has 7 told me is, in effect, incontestable. It would 8 not be fair for him to be called in the 9 circumstances described and, in those 10 circumstances, no useful purpose would be served 11 by me inviting submissions from lawyers about 12 what has been patently obvious to me since I was 13 told about it last night. 14 So the result is that there will be no 15 evidence or no further evidence this week and we 16 will recommence hearing evidence next Tuesday. 17 As Mr Beer has already referred to, I intend, as 18 quickly as I can, to issue appropriate 19 directions to seek to regulate the future 20 conduct of disclosure in this Inquiry, in 21 particular disclosure by the Post Office, and 22 I will expect that my directions are complied 23 with literally to the letter. 24 MR BEER: Thank you very much, sir. 25 SIR WYN WILLIAMS: So I'll see you all to at 10.00 12 1 on Tuesday. 2 MR BEER: Yes, thank you. 3 (10.16 am) 4 (The hearing adjourned until 10.00 am on Tuesday) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 13 1 I N D E X 2 Administrative Discussion .....................1 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 14