Sir Wyn Williams to hold further hearing on Post Office disclosure issues
Inquiry Chair issues statement following 5 September Disclosure Hearing
Further to the hearing he convened last week on Post Office disclosure failings, Sir Wyn Williams has said “there is a need for close monitoring of the disclosure process during the remainder of the Inquiry especially as it relates to disclosure by the Post Office”.
The Chair has therefore issued further directions, stating that he will hold a further hearing between 8 and 19 January 2024 to consider disclosure issues.
In a statement, issued today, Sir Wyn notes that evidence provided by Mr Canavan, Mr Tombleson, Mr Rowan and Mrs Wills on 5 September 2023 acknowledged what might be described as “process failures” as the cause of disclosure failures prior to 30 May 2023.
He says evidence suggests that the process failures were, primarily at least, those of KPMG and Herbert Smith Freehills albeit that Mr Canavan and Mrs Wills accepted that the Post Office must take ultimate responsibility for the failure to disclose relevant documents in its possession or under its control.
The Chair adds: “Mr Canavan’s evidence also suggested some deeper rooted problems which stemmed from historic under-funding of the Post Office’s archiving and document management processes, together with a lack of appreciation in the early stages as to the work that would be required in a statutory inquiry.”
The process failures, which Sir Wyn says are not in dispute, are:
(i) a failure to set appropriate search terms for electronic searches of documents
(ii) a failure to deal appropriately with the “de-duplication” of documents
(iii) a failure to properly consider and assess the relevance of “families” of documents.
Regarding the “de-duplication” issue, the Chair says there remains an unappealing wrangle between KPMG and Herbert Smith Freehills as to who bears responsibility.
In today’s statement, Sir Wyn says: “Having heard evidence about each of those issues in detail I see no reason to alter the view I have expressed on more than one occasion that the failures of disclosure which have come to light are properly described as grossly unsatisfactory.”
The hearing Sir Wyn intends to hold in January will be of the type conducted on 5 September, which provided the Chair an opportunity to hear oral evidence from very senior personnel with significant knowledge of the processes relating to disclosure deployed on behalf of the Post Office.
It also allowed for questions to be asked of witnesses which were intended to throw light upon whether there was evidence to suggest that disclosure failures had been deliberate.
Sir Wyn says: “The issue as to whether there has been a deliberate failure to disclose documents cannot be avoided. It is clear that in the Group Litigation Mr Justice Fraser was critical (indeed very critical on occasions) of disclosure failures by the Post Office in that litigation and disclosure failures have been at the heart of most if not all of the appeals against the criminal convictions which have been quashed by the Court of Appeal (Criminal Division) and Southwark Crown Court. In my view it is necessary for me to ascertain whether disclosure failures in the Inquiry (whether by the Post Office or anyone else) are the consequence of deliberate misconduct or some other reason.”
He notes that each of the witnesses who gave evidence on disclosure issues denied that there had been a deliberate decision on the part of anyone connected with the Post Office to withhold relevant documents from the Inquiry.
He adds: “At this stage of my investigation I am prepared to accept that each of the witnesses genuinely believes this to be the case. However, I am also of the view that it is far too soon to reach a concluded view about whether that belief is well founded as well as held genuinely. Given the history of disclosure failures in the criminal prosecutions which is beyond dispute and the findings about disclosure failures in the Group Litigation which I have no reason to doubt I need to proceed with considerable caution before reaching any definitive conclusions about the reasons for failures by the Post Office to disclose documents to the Inquiry.”
Sir Wyn said that if disclosure of documents is a contentious issue by the time he proposes to bring hearings to a close, all Core Participants will have the opportunity to address the issue in the closing submissions of their advocates.
Read Sir Wyn’s full statement here.
Notes to editors:
A transcript and recordings of the 5 September Disclosure Hearing are available here.
Read Sir Wyn’s Determination on Post Office disclosure failings, issued on 14 July 2023 here.