Statement by Sir Wyn Williams following Disclosure Hearing on 5 September 2023
15 September 2023
Introduction and Background
- On 30 May 2023 Post Office Limited (“the Post Office”) disclosed to the Inquiry for the first time a number of documents which it had previously disclosed to a member of the public on 19 May 2023. The disclosure to the member of the public had followed a request for information/documents made by that person pursuant to the Freedom of Information Act 2000.
- The disclosure of the documents to the Inquiry on 30 May 2023 ought to have been made much earlier - at the latest in response to a request pursuant to Rule 9 of the Inquiry Rules 2005 dated 15 June 2022.
- On 5 June 2023 the Inquiry wrote to the then recognised legal representative of the Post Office requesting that an appropriate person on behalf of the Post Office make a witness statement to answer a number of questions posed by the Inquiry relating to the failure to disclose the documents in question prior to 30 May 2023.
- On 14 June 2023 the Post Office filed a written witness statement made by Mr Benjamin Foat – the Post Office Group General Counsel.
- In the light of the evidence provided by Mr Foat, I decided to convene a hearing which took place on 4 July 2023. At that hearing Mr Foat was questioned about the contents of his witness statement and other documents by Mr Jason Beer KC, counsel to the Inquiry.
- The evidence adduced on 4 July 2023 persuaded me that I should issue written directions. They are to be found in the document dated 6 July 2023 and entitled “Directions in relation to late disclosure from Post Office Limited.” This document was sent to all Core Participants and published on the Inquiry’s website on 7 July 2023.
- The Post Office responded to the directions by letter dated 7 July 2023. In the light of that response, I decided to convene a hearing at which Core Participants would be permitted to make oral submissions. That hearing took place on 11 July 2023 following which I issued a document entitled Further Directions in relation to late disclosure from Post Office Limited dated 14 July 2023. One of the further directions was that a disclosure hearing should take place on 5 September 2023 at which witnesses would be called to provide evidence in relation to disclosure failings.
- Prior to 5 September 2023 the Inquiry obtained witness statements from Mr Fintan Canavan, Mrs Diane Wills, Mr Paul Tombleson, Mr Gregg Rowan and a further witness statement from Mr Ben Foat. I decided that Messers Canavan, Tombleson, Rowan and Mrs Wills should be called to give oral evidence but that further oral evidence from Mr Foat was unnecessary.
- Mr Canavan is a solicitor with considerable experience of and expertise in inquiries held under the Inquiries Act 2005. He is a partner in DAC Beachcroft. From about October 2021 to December 2022 (during which period he was a partner in DAC Beachcroft) he was seconded to work within the internal team deployed by the Post Office to assist and facilitate the work of the Inquiry. For much if not all of that period Mr Canavan was the “Inquiry Director” – the first person to hold that position. The scope of his role is described fully in his witness statement and was explored in oral evidence.
- Mrs Wills succeeded Mr Canavan as Inquiry Director. Mrs Wills is also a solicitor (admitted to the Roll of Solicitors on 1 October 1997). Following qualification she obtained a post with what is now known as the Government Legal Department (GLD) and she remained there until April 2022. Mrs Wills enjoyed considerable success in her career as a government lawyer; she held many very senior positions and by March 2018 she was “GLD’s Home Office legal Director”.
- In April 2022 Mrs Wills joined the Post Office as the Legal Services Director of what is now known as “the Remediation Unit”. That position required her to “lead an in-house legal function to ensure the delivery of timely and fair compensation to Postmasters affected by the failings of the Horizon IT system” and to support the work relating to criminal appeals.
- In January 2023 Mrs Wills was appointed to succeed Mr Canavan and lead the Post Office Inquiry Team. She has performed that role in addition to her role as the Legal Services Director of the Remediation Unit. Her responsibilities in both roles are described in her witness statement at paragraphs 24 to 34 and they were appropriately explored in questions put to Mrs Wills at the hearing on 5 September.
- Mr Rowan is a barrister and a partner (since 2014) of Herbert Smith Freehills LLP. That firm was retained by the Post Office to act on its behalf in the Inquiry in September 2021 and I designated Mr Rowan as the recognised legal representative of the Post Office in April 2022. On 31 August 2023 Mr Rowan ceased to perform that role. As from 1 September 2023 Mr Christopher Jackson of Burges Salmon LLP was designated as the recognised legal representative of the Post Office.
- The witness statement provided by Mr Rowan is very long and detailed. It runs to 63 pages. It also contains an Annex entitled “Remediation Activity and Searches Assurance” which runs to 136 pages which seeks to explain the steps which Post Office has taken in order to prevent further disclosure failures. In his questioning of Mr Rowan, Mr Beer KC concentrated on exposing the reasons for the disclosure failures of the Post Office prior to 30 May 2023. He quite correctly proceeded on the basis that it was as yet too soon to judge the efficacy of the remediation measures described by Mr Rowan in the Annex to his witness statement.
- Mr Tombleson is a partner in KPMG LLP. He specialises in forensic technology. The role of KPMG has been and is to support the Post Office to respond to requests made by the Inquiry for information held electronically. In his witness statement Mr Tombleson describes the role of KPMG as being that of an “eDisclosure provider” and at paragraph 5 of his witness statement he describes five distinct aspects to the services provided by his firm, namely (i) data scoping, collection and migration; (ii) data preparation; (iii) data processing; (iv) review and hosting using forensic technology tools; and (v) disclosure.
- Mr Ben Foat has been the Group General Counsel of the Post Office since 1 May 2019. It is clear to me that the evidence he has provided to me both in writing and orally is largely dependent upon his understanding of information provided to him by others.
- Overall, without doubt, the most important witnesses from whom I have heard on the issue of disclosure failures by the Post Office are Mr Rowan and Mrs Wills.
The purpose of the hearing on 5 September 2023
- In the correspondence sent to the Post Office seeking witness statements, the Inquiry sought detailed evidence to explain why there had been disclosure failures prior to 30 May 2023 and what steps had been taken by the Post Office to remedy those failures and ensure that no repetition of such failures would take place.
- Additionally, the hearing provided an opportunity for me 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 the witnesses which were intended to throw light upon whether there was evidence to suggest that the disclosure failures had been deliberate or the consequence of the use and/or application of inadequate processes.
- 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.
The written and oral evidence at the hearing on 5 September 2023 and its effect
- The evidence provided by Messers Canavan, Tombleson, Rowan and Mrs Wills acknowledged what might be described as “process failures” as the reason why there were disclosure failures prior to 30 May 2023. Their evidence also suggests that such 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. 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 identified in the evidence as being those responsible for the disclosure failures are not in dispute. They 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 (there remains an unappealing wrangle between KPMG and Herbert Smith Freehills as to who bears responsibility for the serious failures in disclosure); and (iii) a failure to properly consider and assess the relevance of “families” of documents. 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.
- I should record, however, that each of the witnesses (including Mr Foat) either expressly or inferentially 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. 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.
- Having heard and read the detailed evidence produced by the Post Office for the hearing on 5 September 2023 I have no doubt, as I suggested was very likely in the document entitled Further Directions dated 14 July 2023, that 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. That is best done by me convening hearings of the type conducted on 5 September 2023 at periodic intervals henceforth until I deliver my Report to the Minister.
- I had reached that view by the time I had concluded hearing the evidence on 5 September 2023. I had also decided that it would not be appropriate to make definitive findings about whether there had been deliberate non-disclosure of documents by the Post Office. That is why I considered it unnecessary to permit Core Participants to make written submissions on the evidence adduced for and at the hearing on 5 September 2023. If disclosure of documents is a contentious issue by the time I propose to bring hearings to a close all Core Participants will have the opportunity to address the issue in the closing submissions of their advocates.
- In the light of the above I make the following further directions.
A There shall be a further hearing to consider disclosure issues on a date to be fixed in the period commencing 8 January 2024 and ending 19 January 2024.
B The Inquiry will notify those persons who are asked to provide witness statements for use at the January disclosure hearing by 31 October 2023 and such persons shall provide witness statements to the Inquiry by 4pm, 1 December 2023.
C The witnesses notified in accordance with B above shall inform the Inquiry whether there are any dates to avoid during the period 8 January to 19 January 2024 by 7 November 2023. Thereafter the date for the hearing shall be fixed.
D In the event that anyone asked to attend as a witness at the hearing has already booked a holiday abroad during the period specified in A above that witness may give evidence remotely from the country in question (provided that such is lawful in the country in which the witness is on holiday during that period).
Sir Wyn Williams
15 September 2023
 In this Statement I do not propose to elaborate upon what is meant by inappropriate “search terms” and the terms “de-duplication” and “families of documents”. These words and phrases are very well described in the written and oral evidence and the Core Participants who are most concerned with disclosure issues will have a clear grasp of their meaning.