Chair’s Minded To Note re: The Questioning of Witnesses - Phase 5 & 6 Hearings

Update: PLEASE BE AWARE THAT THIS NOTE APPLIES TO PHASE 5 & 6 HEARINGS AND IS NO LONGER IN EFFECT

Core Participants to the Inquiry were notified on 28 March 2024, of the Chair’s intentions regarding the questioning of witnesses in the forthcoming hearings in Phases 5 and 6 of the Inquiry.  The attached “Minded to” was shared with Recognised Legal Representatives of Core Participants, with a request that any objections be submitted to the Inquiry by 4pm on 4 April 2024.  

No objections have been received and therefore the Chair determines that “Minded to” Note is to be taken as his final determination, and the “Minded to” Note is to be an adjunct to the Protocol for providing oral evidence at hearings, available here https://www.postofficehorizoninquiry.org.uk/key-documents/protocol-providing-oral-evidence-hearings

Introduction

  1. As we reach the stage where the combined Phase 5 and 6 hearings soon commence, I have given thought to the approach to the questioning of those witnesses who will give evidence in those Phases – in particular, whether any adjustments ought to be made to the existing arrangements for the questioning of witnesses. This Note addresses that topic, and sets out the approach that I am minded to take.
  2. Legal representatives of Core Participants should write to the Solicitor to the Inquiry, by 4.00pm on Thursday 4th April 2024 stating whether they agree to the proposed approach and, if not, their reasons for not agreeing to it.

  3. In my view, the way in which the questioning of witnesses who have given evidence to the Inquiry to date has worked very well – it has been efficient, effective and fair. The two proposed amendments to the approach that I describe below arise because of the different nature of some of the evidence which I am likely to hear in Phases 5 and 6, and a recognition by me that some Core Participants may have divergent views about the questions which ought to be asked of some witnesses.

    (1) Witnesses who give evidence for more than one day

  4. Where a witness is scheduled to give evidence for more than one day (there are presently 9 such witnesses), I think it is right for those Core Participants who wish to ask questions of such a witness - where permission is given to do so on the r10 pro-forma that CTI completes - to be allocated a definite period of time in which to do so, rather than their questions having to be asked in whatever time happens to be left after CTI has concluded their questioning of a witness. In this way, the evidence of these substantial witnesses can be taken in a more structured and ordered way, seeking to ensure that their evidence is completed within the allotted time, whilst enabling, in advance, the Core Participant(s) who wishes to ask questions how much time they will have. I have asked CTI to check with those Core Participants who have asked the vast majority of questions to date - the three groups of sub postmaster Core Participants – whether they would welcome such an approach and I understand that they would. If the approach is adopted, then CTI will mark on the r10 pro-forma which is returned to a Core Participant a time allocation for the asking of those questions which the Core Participant is given permission to ask. 

    (2) Approach to r10(2) of the Inquiry Rules 2006

  5. I think that it is right that should I identify now, in relation to witnesses where the approach outlined above applies, my approach to r10(2) of the Inquiry Rules 2006 – that is, the giving of permission for a legal representative of the witness giving evidence (whether they are a Core Participant or not), to ask questions of that witness (i.e. their own client). Where such a legal representative wishes to ask their own client questions, the main questioning by CTI and any other Core Participants having concluded, I will generally give such permission.
  6. It will not be necessary for a legal representative of a witness to whom the approach set out above applies to file a r10 pro-forma which anticipates the issues about which they may wish to re-examine. Instead, a request can be made to me at the conclusion of the witness’s evidence. They may, of course, still file such a r10 pro-forma if they wish to draw particular issues or documents to CTI’s attention.
  7. The approach I have set out above is subject to two caveats. Firstly, the purpose of such questioning is not for the legal representative to cross-examine their client in relation to issues upon which they have already given evidence – it should be undertaken in the form of a conventional re-examination, and is likely to be of most value to me if new documents or material are brought to the attention of the witness which bear upon the issue they are being asked about. Secondly, the length of such questioning will be controlled by me.
  8. The process of questioning other witnesses will remain the same.


Sir Wyn Williams
28th March 2024