Protocol on Witness Statements
1. This Protocol sets out the approach that will be taken by the Post Office Horizon IT Inquiry (Inquiry) to the taking of witness statements.
2. The Chair will decide whom to invite to give written or oral evidence (or both), irrespective of whether that person has been designated a core participant. The Inquiry welcomes approaches from those who believe that they have relevant evidence to give. The means by which a person can contact the Inquiry is set out on the Inquiry’s website (see Contact us).
3. If the Chair considers that a person may be able to give evidence that is likely to be of assistance in fulfilling the Inquiry’s Terms of Reference, the Solicitor to the Inquiry (Solicitor) or someone acting on the Solicitor’s behalf will take steps to determine whether that person’s evidence might assist the Inquiry. The Inquiry does not undertake to accept evidence from every person who approaches it in this regard.
4. All those who appear to be able to give relevant evidence will be asked to provide to the Inquiry a written statement which follows the format and structure for witness statements described in the Annex to this Protocol.
5. In this Protocol:
a. a “core participant” is a person, an organisation or other entity with a significant interest in the Inquiry and is designated a Core Participant in the Inquiry pursuant to Rule 5 of the Inquiry Rules 2006 (see the Inquiry’s Core Participant Protocol);
b. “disclosed” means made available to core participants and (in some instances) to persons from whom the Inquiry proposes to take evidence, subject to a strict undertaking to the Inquiry of confidentiality by the recipient of the disclosure (and their recognised legal representative, if any), not to reveal the information to others;
c. “published” means made available on the Inquiry website, which is accessible by members of the public, or published as part of any interim or final report; and
d. a “witness” is a person from whom the Chair intends to take written or oral evidence.
6. The purpose of this Protocol is to ensure that:
a. witnesses (and, where applicable, their legal representatives) understand the process by which the Inquiry will seek to obtain written witness statements; and
b. written witness statements conform to a common standard and are provided to the Inquiry in a form which will best enable it to understand the matters to which they relate.
7. The procedures outlined below are not intended to cover every eventuality or every procedural issue that may arise. It follows that, where the interests of justice and fairness so require, the Inquiry may need to depart from this Protocol. Further, this Protocol may be amended from time to time, in which case an amended version will be published on the Inquiry website.
Request for a Written Witness Statement
8. Where the Inquiry proposes to take evidence from a person or wishes to obtain further evidence from a witness who has already provided a written statement, it will send that person a written request for evidence pursuant to Rule 9 of the Inquiry Rules 2006 (Rule 9 Request).
9. If a witness has appointed a qualified lawyer to act on their behalf and the Chair has designated the lawyer as the witness’ recognised legal representative, the Rule 9 Request will be sent to that legal representative. Otherwise, the Rule 9 Request will be sent directly to the witness.
10. The Rule 9 Request will contain a description of the matters or issues to be covered by the written statement.
Responding to a Request for a Written Witness Statement
11. A witness may draft their own written statement or may seek assistance from a lawyer or other representative. A witness who is legally represented will ordinarily be expected to obtain assistance in drafting their statement from their recognised legal representative.
12. If a witness in receipt of a Rule 9 Request requires assistance from the Inquiry in drafting a statement, the witness should contact the Inquiry as soon as possible and, in any event, within 14 days of receipt.
13. When responding to a Rule 9 Request, a witness should aim to include within the written statement evidence relating to all matters or issues described in the request. The witness may refer in the statement to documents which are relevant to the Inquiry’s Term of Reference. Any such reference(s) should comply with the requirements of paragraph 8 of the Annex to this Protocol.
14. The witness statement must be: (a) written in the witness’ own words; (b) approved by the witness as being complete and accurate; and (c) supported by a statement of truth as required by paragraph 7 of the Annex to this Protocol.
15. Unless otherwise specified in the Rule 9 Request, a witness should provide an unsigned statement in draft to the Solicitor by email, which the Inquiry will consider with a view to deciding whether:
a. the evidence within the draft statement needs to be clarified and / or further evidence needs to be provided; or
b. the witness should be asked to sign the draft as a final written statement and submit it to the Inquiry in electronic Word and PDF format.
16. If the Inquiry considers that the evidence within the draft statement requires clarification and / or further evidence needs to be provided, the Inquiry will send a further Rule 9 Request to the witness identifying the matters which need to be addressed and will either ask for a further draft statement from the witness or a final signed statement, as may be appropriate.
17. Where the Inquiry is satisfied that no further information or clarification is required, the Inquiry will request that the witness sign the draft as their final written statement. Upon receipt of that request, the witness should return the signed statement within 7 days.
Time Limit for Complying with a Request
18. The Rule 9 Request, or a letter accompanying it, will set a time limit for compliance. Time limits may vary depending on the nature and extent of the evidence sought. The Inquiry will consider an application for an extension of time if there is a good reason why a witness will be unable to comply with the time limit. An application for an extension of time must be made in writing by e-mail to the Solicitor as soon as possible and, in any event, before the expiry of the period specified in the Rule 9 Request.
Statement in a Foreign Language
19. Where a witness wishes to make a statement in a language other than English, the written statement should be provided to the Inquiry in its original form. A witness who is legally represented should also provide a certified translation of their statement made by a qualified translator. If the witness is not legally represented, the Inquiry will obtain a translation and will take such steps as it considers appropriate to ensure that the witness is satisfied that their evidence is correctly captured by the English version.
20. Where a witness is able to give written evidence in English, but, if called to give evidence in person, would prefer to give oral evidence in a language other than English, the written statement should state clearly the need for a translator and identify the language in which any oral evidence is to be given.
Disclosure and Publication of Witness Statements
21. It is important that the Inquiry proceedings are conducted in public and in as open and transparent a manner as possible. Unless there is a legal reason not to do so, all written witness statements (and any documents to which they refer) will therefore be:
a. published by the Inquiry on its website; and
b. disclosed to core participants and (in some instances) witnesses by making the documents available on the Inquiry’s database.
22. Any witness who wishes to have their identity (or any of their evidence) withheld from disclosure or publication must apply for a restriction order when submitting their written statement to the Inquiry. This request will be dealt with in accordance with the Inquiry’s Protocol on Redaction, Anonymity and Restriction Orders.
23. The written statement to be disclosed by the Inquiry will ordinarily be the witness’ final signed statement and not any draft statements. However, if a witness refuses to return a signed statement, or delays to an unacceptable extent in returning such a statement, the Inquiry may proceed to disclose any draft statement(s) produced by the witness.
24. Written statements provided to the Inquiry may contain criticisms of another person or organisation. The Inquiry’s approach to Rules 13 to 15 of the Inquiry Rules 2006 will be set out in the Inquiry’s Protocol for Warning Letters.
Procedure for Failure by a Witness to Respond to a Rule 9 Request
25. The Chair has powers exercisable by notice to require the provision of evidence under section 21 of the Inquiries Act 2005 (Act), including the provision of a written statement within such period as seems reasonable to the Chair (under section 21(2)(a)).
26. The Chair may also issue a notice to a witness:
a. to attend at a time and place to give evidence (under section 21(1)(a) of the Act);
b. to produce any document(s) in the custody or under the control of the witness that relates to a matter in question at the Inquiry (section 21(1)(b)); or
c. to produce any other thing in the custody or under the control of the witness for inspection, examination or testing on behalf of the Chair (section 21(1)(c)).
27. A person may claim that they are unable to comply with the notice or that it is not reasonable in all the circumstances for them to comply with such a notice (under section 21(4) of the Act). The Chair will determine any such claim and may revoke or vary a notice on the ground claimed. In doing so, the Chair will consider the public interest in the information in question being obtained by the Inquiry, having regard to its likely importance.
28. A person is guilty of an offence under section 35 of the Act for failure without reasonable excuse to comply with a notice issued pursuant to section 21. The offence is punishable on summary conviction by fine or imprisonment. Certification may also be given to the High Court pursuant to section 36 of the Act for enforcement proceedings, which may also result in imprisonment.
Issued under the authority of the Chair on 07 October 2021.
Amended by the Chair on 29 April 2022.
ANNEX: Format of Written Statements
If any person has difficulty in meeting the requirements of this Annex, for whatever reason, they should contact the Inquiry team who will try to provide assistance and support. Contact details are listed on the Inquiry website (see Contact us).
1. The statement, whether in draft or final form, should be provided electronically where possible, designed to be printed on single-sided A4 paper, in Arial font, size 12, double line spaced, with margins, headers and footers of not less than 2.54cm (normally the default margin settings for Microsoft Word), in accordance with the template appended to this Annex.
2. Paragraphs should be numbered sequentially and the statement should be paginated at the centre of the page footer in the form 'Page x of y'.
3. Statements should always be provided to the Inquiry in a format that enables the text of the content to be searched, whether in Word or PDF format, and should not be watermarked. Draft statements should be provided to the Inquiry by email to the Solicitor, unless specified otherwise in the Rule 9 Request. Final form statements should be accompanied by a second copy, which should be the signed copy. This may be provided as an electronic scan. The Inquiry suggests that witnesses or their legal representatives should retain the hard copy of the statement bearing the original signature. Final form statements should be uploaded to the Inquiry’s document management platform (the Inquiry team will provide further details in this regard at the appropriate time).
4. Statements should be headed “[NUMBER e.g. ‘First’] Witness Statement of [WITNESS NAME]”. The statement must show the full name of the witness and the date on which the statement is signed on the front page. The statement should begin by setting out the date of the Rule 9 Request to which it responds and briefly summarising the topic which the statement covers.
5. The Inquiry will allocate each witness an unique identifier which will be provided in any Rule 9 request issued by the Inquiry. The statement should include this unique reference number on the front page, as demonstrated in the Appendix.
6. In the case of a witness who is giving evidence in relation to their current or former occupational capacity, the statement should indicate the name of the employing organisation, and the witness’ current or former position or role within that organisation. A witness who is giving evidence in a private capacity need not include their home address in the body of the written statement, provided that address has previously been notified in writing to the Inquiry.
7. The statement should end with a Statement of Truth containing the words “I believe the content of this statement to be true” followed (in the signed copy) by the signature of the witness and the date of signature.
Documents Accompanying the Written Statement
8. Where a written statement refers to any document(s), the following requirements should be met in respect of each document:
a. if the document has not previously been disclosed to the Inquiry, the complete document must be provided as soon as possible, and exhibited to the statement. These documents should be provided to the Inquiry by means of upload to its document management system (about which more information will be provided nearer the date the draft statement is due);
b. if the document has been previously disclosed to the Inquiry, the Inquiry’s Unique Reference Number (“URN”) assigned to the document by the Inquiry; should be included in the index (see (d), below);
c. documents referred to by a witness should be numbered sequentially (i.e. 1 for the first document of a particular witness, 2 for the second document and so on). These numbers should be preceded by the witness’ unique identifier, and the number of the witness’ statement, for example: “WUIXXX_01/1, WUIXXX_01/2”;
d. the full title of the document should be given on the first occasion reference is made to it. After that first reference, an abbreviation will be sufficient. This should be followed by the exhibit number of the document in brackets, for example, “(WUIXXX_01/1)”. As set out above, the Inquiry’s URN for that document should be provided in the index to the witness statement (see (e), below), where the URN is known at the time the draft statement is returned (otherwise, that column should be left blank);
e. each statement should be accompanied by an index of the documents referred to in the statement, identifying the documents by exhibit number (e.g. WUIXXX_01/1, WUIXXX_01/2 etc.), full document description, the provider’s control number (if applicable) and URN (if available), as demonstrated in the Appendix. If any of this information is not yet available when the draft statement is returned, the column should simply be left blank. The Inquiry’s Legal Team will liaise with witnesses in this regard.
9. Any questions relating to the content or format of a witness statements should be directed to the Legal Team member named in the Rule 9 Request or, otherwise, to the Solicitor by email: email@example.com.