Further Directions in relation to late disclosure from Post Office Limited
14 July 2023
1. Following a hearing which took place on 4 July 2023 at which I heard oral evidence from Benjamin Foat, the Group General Counsel for Post Office Limited (“the Post Office”) I published the following directions:-
“Any documents that relate to a Phase 4 witness 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:
- For all witnesses who are due to give oral evidence to the Inquiry up to and including 28 July 2023, no later than 2 clear working days before the date on which that witness is due to give evidence (‘Direction 1’).
- For future phase 4 witnesses, no later than 14 August 2023 (the Inquiry will shortly publish an indicative timetable) (‘Direction 2’)
For all documents provided as above, the Post Office must clearly identify the witness(es), request(s) and/or notice(s) 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 2005 (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 clearly identify the request(s) or notice(s) to which the document is said to [be] responsive (‘Direction 3’)”
2. These directions were contained within a document entitled “Directions in relation to late disclosure from Post Office Limited" which was sent to Core Participants on 7 July 2023 at 07:40am and published on the Inquiry’s website on 7 July 2023. As well as setting out the directions, the document contained a brief description of the disclosure failures which had prompted me to make the directions.
3. The Post Office responded to the directions by letter dated 7 July 2023 received by the Inquiry by email at 2:00pm.
4. In its letter the Post Office explained that it would not be able to comply with Direction 1 insofar as it related to the witnesses due to be called during the week commencing 10 July 2023. Further, it was unable to confirm whether it would be able to comply with Direction 1 so far as it related to the witnesses due to be called to give evidence in the week commencing 17 July 2023. The Post Office apologised for the disruption caused to the Inquiry and promised to provide regular updates to the Inquiry so as “to assist the Inquiry’s management of its timetable and witnesses”.
5. Upon receipt of this letter, I concluded that it would be necessary to convene a hearing at which Core Participants would be provided with the opportunity to make oral submissions. I decided that the hearing would be scheduled for 10:00am on Tuesday 11 July 2023. During the late afternoon of 7 July 2023, all Core Participants were made aware of the date and time of the hearing together with the contents of the letter sent by the Post Office to the Inquiry referred to above as well as earlier letters received from the Post Office. Core Participants were also told that I was contemplating two possible courses of action. First, to hear from the witnesses who were scheduled to give evidence in the weeks commencing 10 and 17 July 2023 notwithstanding that disclosure was incomplete and, in the event that material disclosure of documents occurred after their appearance to give evidence, to recall them to give further evidence. Second, to adjourn the evidence of those witness until disclosure of relevant documents had been completed; in this scenario the witnesses would give their evidence at a convenient time after the summer break. Core Participants were invited to express a view in relation to those alternatives at the hearing which I had convened and/or make any other suggestion as to how best to proceed.
6. At 4:08pm on 10 July 2023 the Inquiry received a further letter on behalf of the Post Office. The letter contained a detailed description of the work in which the Post Office was engaged to remedy the failures of disclosure which had occurred. However, it also made clear that full disclosure of relevant documents in compliance with Direction 1 could not occur in relation to the witnesses scheduled to give evidence in the week commencing 10 July 2023 and such disclosure was very unlikely in relation to the witnesses scheduled for the week commencing 17 July 2023. The Post Office thought it likely that relevant disclosure would have taken place in compliance with Direction 1 in respect of the witnesses to be called in the week commencing 24 July 2023.
7. At the hearing on 11 July 2023 I was addressed by Mr. Beer KC, Leading Counsel to the Inquiry; Ms. Gallafent KC, Leading Counsel for the Post Office; Mr. Stein KC, Leading Counsel for the Core Participants represented by Howe+Co; Mr Moloney KC, Leading Counsel for the Core Participants represented by Hudgell Solicitors; Mr. Henry KC, Leading Counsel for the Core Participants represented by Hodge Jones & Allen; and Ms. Watt of Anderson Strathern LLP, representing the National Federation of Subpostmasters (‘NFSP’).
8. Ms. Gallafent KC did not make submissions about either of my two possible alternative courses of action (or any other alternative); she submitted on behalf of the Post Office, in effect, that in making my decision as to which course to adopt I should pay careful attention to the wishes of the Core Participants who were former and /or current subpostmasters.
9. The NFSP, the Core Participants represented by Mr. Moloney KC and the Core Participants represented by Mr. Henry KC urged me to hear all the witnesses scheduled for the weeks of 10 July and 17 July after relevant disclosure was complete i.e. they invited me to hear the evidence of all those witnesses after the summer break. The Core Participants represented by Mr. Stein KC, by a substantial majority, supported that alternative save that they urged me to hear the evidence of Mr. Atkinson KC as scheduled on 21 and 22 July 2023. Mr Atkinson KC is an expert witness versed in the criminal law of England and Wales and instructed on behalf of the Inquiry to provide opinion evidence about the processes and policies followed by the Post Office when it exercised its prosecutorial function. Mr. Stein KC argued that the evidence given by Mr. Atkinson KC would not be affected adversely if he gave the bulk of his evidence on 21/22 July 2023 but then was recalled after the summer break to give evidence about any important documents disclosed late.
10. In my view and on balance, the calling of witnesses twice to give evidence in relation to the same or related topics is to be avoided. Generally speaking, the taking of evidence from witnesses is more productive if it happens in one session or in consecutive sessions until completion. Although there may be instances in which proportionality and flexibility demands that evidence from witnesses may be taken piecemeal, that state of affairs is usually to be avoided. That view militates against proceeding with the evidence scheduled for this week and next.
11. In my view this generalisation applies with equal force to expert witnesses. I appreciate that Mr. Cipione, an expert witness in relation to analysing and interpreting data relating to information technology, was called twice during Phase 2 of the Inquiry but the nature of the evidence he was giving tended to fit in with that course of action and, importantly, all Mr. Cipione’s written evidence was composed after he had seen all the documents disclosed by the Post Office and Fujitsu upon which he was expected to comment. Moreover, I accept that it was and is intended that Mr. Atkinson KC gives evidence twice in Phase 4 in any event. However, these appearances concern two separate matters: first, issues relating to prosecutorial policy; second, issues arising from the criminal case studies I have selected. Importantly, in the light of the Post Office’s disclosure failings, it may be that Mr. Atkinson KC has yet to see all the relevant documents relating to policy issues, and would be very unlikely to see them all prior to the commencement of his evidence on 21 July 2023. In my view, it is far preferable for him to give his evidence on prosecutorial policy at the same time, having read all of the relevant documents available.
12. Upon the basis of the submissions made to me on 11 July 2023, I am firmly of the view that all the witnesses scheduled for the weeks commencing 10 and 17 July 2023 should be postponed until after the summer break. I announced that decision once oral submissions had concluded at the hearing because I was clear in my mind that this represented the best way forward both in relation to evidence gathering but also, ultimately, in relation to the most efficacious use of the Inquiry’s time.
13. During the course of the oral submissions on behalf of the Core Participants who were former or current subpostmasters there was no attempt to disguise the view held by many to the effect that the Post Office has, quite deliberately, embarked upon a course of conduct in relation to disclosure of documents to the Inquiry which is likely to prove to be a very significant stumbling block in my search for answers to the crucial questions which arise for my consideration. It does not surprise me that this is the attitude of many former subpostmasters. After all, a failure to disclose crucial information about Horizon was a central finding leading to the quashing of criminal convictions in the Court of Appeal (Criminal Division) and the Crown Court and failures of disclosure in the litigation between Bates and others v Post Office Limited were highlighted by the Honourable Mr Justice Fraser in both his substantive judgments in that case (being Judgment (No.3) ‘Common Issues’ and Judgment (No. 6) ‘Horizon Issues’). Such a background is bound to lead some to be extremely sceptical about the vigour with which the Post Office will discharge its disclosure duties to the Inquiry.
14. I am determined to be as open minded about this aspect of my investigation as I hope to be in relation to all other aspects. At this stage it is not possible to offer definitive views about how the process of disclosure has been managed by the Post Office and, indeed, others. However, it would be remiss of me to fail to guard against the possibility that there are those who are engaged in the process of disclosure of documents on behalf of the Post Office who are unwilling or unable to comply strictly with requests for disclosure of documents made of them by the Inquiry and/or are unwilling to ensure strict compliance with requests under rule 9 of the Inquiry Rules 2006 and/or s21 Inquiries Act 2005. That being so, I am clear about the need to be vigilant to protect the integrity of the Inquiry against the possibility of that occurring.
15. With that very much in mind I turn to consider a number a steps which Mr. Stein KC invited me to take going forward.
16. First, he invited me to hold a further hearing in the course of the coming days i.e., in reality, next week commencing 17 July 2023, at which I should direct the questioning of Mr Foat for a second time, together with Mr Read, the Chief Executive of the Post Office and the partner at Herbert Smith Freehills who is supervising the work of disclosure of documents.
17. I do not think that a hearing next week would be fruitful. It is too soon. I unhesitatingly agree, however, that there is a need for a further hearing in the comparatively near future. I have decided that such a hearing will take place on Tuesday 5 September 2023 at 10:00am. Mr Foat will definitely be asked to attend to give further evidence and I will determine who, if anyone else, should give evidence after making further enquiries of the Post Office as to the identity of senior persons who are directly and substantially involved in the disclosure for Phase 4 of the Inquiry. Mr Foat and any other witness I decide to call will be asked to make a witness statement by 4:00pm on Monday 14 August 2023 which is the date by which there must be compliance with Direction 2 above.
18. The probability is that henceforth I will treat the issue of disclosure as I have treated the issue of compensation, i.e. by holding discrete hearings, with the consequence that I anticipate hearings related to disclosure will be held at regular intervals throughout the remainder of this Inquiry.
19. I stress, of course, that holding such hearings should be unnecessary and they will, inevitably, impact upon the smooth running of the Inquiry, and will impact on the work of all Core Participants and the Inquiry team. While Ms. Gallafent KC submitted that the holding of such a hearing would take some resources away from the Post Office’s remediation efforts, the hearings have become necessary, because of the significant failures in disclosure on the part of the Post Office which have been well publicised in the last few weeks. When I notified the parties of the need for the hearing on Tuesday 11 July 2023 I described the current position as it related to disclosure as being “grossly unsatisfactory”. Having reflected on the use of that phrase (given that it was widely reported) I stand by it.
20. I turn next to consider other measures which Mr. Stein KC, in particular, urged me to consider so as to ensure that the Post Office complies with its disclosure obligations. Rule 9 of the Inquiry Rules 2006 requires the Inquiry to send a written request to any person that it wishes to produce any document to the Inquiry. In effect, this is the first step in the process of obtaining disclosure of documents. Section 21 of the Inquiries Act 2005 empowers me to serve a notice upon any person whom I require to produce or provide evidence or documents.
21. If a person is served with such a Section 21 notice, they may assert under Section 21(4) that they are unable to comply with the notice and/or that it is not reasonable in all the circumstances for them to comply, in which case, I must determine that claim, and may decide to vary or revoke the notice. In deciding whether to revoke or vary the notice as above, under Section 21(5) I must consider the public interest in the information in question being obtained by the Inquiry, having regard to the likely importance of the information. If the person served with a notice does not allege that they cannot comply with it, and/or they do not contend that it is not reasonable to comply with it, or their application (if any) under Section 21(4) is unsuccessful, they must comply with the notice and by virtue of section 35 of the 2005 Act they commit a criminal offence if they fail without reasonable excuse to do anything they are required to do under the notice.
22. In my view and given the matters above, there is some merit in using the compulsory powers under Section 21, and henceforth all future Inquiry requests for documents or information made to the Post Office will be made pursuant to a Section 21 notice. For the reasons I have already given, this carries a threat of a criminal sanction.
23. Finally, I should mention Section 36 of the Inquiries Act 2005. That reads as follows:-
36 Enforcement by High Court or Court of Session
(1) Where a person—
(a) fails to comply with, or acts in breach of, a notice under section 19 or 21 or an order made by an inquiry, or
(b) threatens to do so,
the chairman of the inquiry, or after the end of the inquiry the Minister, may certify the matter to the appropriate court.
(2) The court, after hearing any evidence or representations on a matter certified to it under subsection (1), may make such order by way of enforcement or otherwise as it could make if the matter had arisen in proceedings before the court.
(3) In this section “the appropriate court” means the High Court or, in the case of an inquiry in relation to which the relevant part of the United Kingdom is Scotland, the Court of Session.
24. I do not rule out the possibility that this section could be invoked although, in the context of disclosure, it is hard to see how this would significantly increase the likelihood of disciplined behaviour given that the failure to comply with a notice under section 21 would probably constitute a criminal offence and, quite possibility, a serious offence for which a substantial penalty would be appropriate (the maximum sentence of imprisonment being 51 weeks pursuant to section 35(8)(a) of the 2005 Act).
A. I hereby direct that a further disclosure hearing will take place on Tuesday 5 September 2023 at 10:00am at Aldwych House, 71-91 Aldwych, London WC2B 4HN. The witnesses to be called to give evidence at this hearing shall be notified of that fact by 4:00pm on Monday 31 July 2023 and all Core Participants will be notified of the names of the witnesses to be called by 12:00pm on Tuesday 1 August 2023, after which the names of the witnesses will be published on the Inquiry website.
B. Any person asked to attend as a witness will be notified by the Inquiry no later than 31 July 2023. Each witness will be required to provide the Inquiry with a witness statement and any exhibits by 4.00pm on 14 August 2023. As soon as reasonably practicable thereafter, the statements will be disclosed to all Core Participants and the statements published on the Inquiry website.
C. In the event that anyone asked to attend as a witness on 5 September 2023 has already booked a holiday abroad on that date they may give their evidence remotely from the country in question (provided that such is lawful in the country in which the witness is on holiday on that date).
D. Direction 1 of my directions dated 6 July 2023 be amended such that the words ‘up to and including 28 July 2023’ are replaced with ‘during the week commencing 24 July 2023’.
E. Directions 2 and 3 of my directions dated 6 July 2023 remain in force.
Sir Wyn Williams
14 July 2023
* Amended on Friday 14 July 2023 at Paragraph D to correct 'week commencing 26 July 2023' to 'week commencing 24 July 2023'.