In the matter of an undertaking from the Attorney General: Gareth Jenkins (Ruling 2)
Decision
Background
1. In a decision dated 16 November 2022 (“Ruling 1”) I refused an application which had been made on 3 October 2022 on behalf of Mr Gareth Jenkins to the effect that I should invite the Attorney General to provide an undertaking that any evidence given by Mr Jenkins to the Post Office Horizon IT Inquiry (“the Inquiry”) would not be used in any criminal proceedings brought against him. My reasoning for reaching that conclusion is to be found at paragraphs 14 to 17 of Ruling 1.
2. In the same decision letter I made it clear that I would keep my decision under review (see paragraph 18).
3. The application made on behalf of Mr Jenkins had been made against the background that a notice had been served upon him on or about 31 August 2022 pursuant to Rule 9 Inquiries Rules 2006 (“the first Rule 9 request”) which contained many questions relevant to phases 2 and 3 of the Inquiry’s investigations and which invited Mr Jenkins to make a witness statement in which those questions were answered. As at the date of Ruling 1, Mr Jenkins was considering whether to decline to answer the majority of the questions posed to him on the grounds that to answer such questions might incriminate him; i.e. he was considering invoking the privilege against self-incrimination.
4. On or about 6 February 2023 Mr Jenkins submitted a witness statement to the Inquiry (his first witness statement) in which he answered some but not the majority of questions posed to him in the first Rule 9 request.1
5. Mr Jenkins was due to give oral evidence to the Inquiry on 4 and 5 May 2023. Many relevant documents were disclosed to him shortly before the dates upon which he was due to give evidence. Further, shortly before 4 May, those acting for Mr Jenkins informed the Inquiry that he was contemplating answering questions 16 to 52 contained within the first Rule 9 request. I decided that in these circumstances Mr Jenkins should not be required to give oral evidence on 4 and 5 May and that he should give oral evidence in relation to phases 2 and 3 later in Inquiry’s proceedings.2
6. On or about 1 June 2023 Mr Jenkins submitted a second witness statement to the Inquiry which, he maintains, answers questions 16 to 52 in the first Rule 9 request i.e. those questions which had not been addressed in his first witness statement.
7. In the week prior to 6 July 2023 many more documents were disclosed to Mr Jenkins. A detailed description of what happened in that time period is set out in the application which I am now considering - see paragraphs 10 to 13 of a letter dated 17 August 2023 from Corker Binning (Mr. Jenkins’ solicitors) to the Inquiry. In consequence, during the evening of 5 July 2023 I determined that it would be unfair to Mr Jenkins to require him to give oral evidence and be examined about documents which he had received only shortly before 6 July 2023. Consequently, his appearance before the Inquiry to give evidence in relation to phase 3 of the Inquiry’s work was again postponed.
8. On or about 4 August 2023 Mr Jenkins was served with a second Rule 9 Request which required him to make a witness statement which answered many questions relating to phases 4 and 5 of the Inquiry. This third witness statement is due to be submitted to the Inquiry 7 days after the provision of this Ruling to Mr Jenkins. Currently, Mr Jenkins is due to give oral evidence before the Inquiry relating to phases 3, 4 and 5 for 4 days beginning on 30 November 2023.
9. The letter from Corker Binning referred to at paragraph 7 above contains the application with which I am now dealing. It invites me to “revisit [my] earlier decision not to seek an undertaking from the Attorney-General”.3 This request is founded upon “two principal matters: (i) the approach which was taken to the evidence of Mr Jenkins in Phase 3, and (ii) the service of a further Rule 9 Request on Mr Jenkins on 4 August 2023 in relation to Phases 4 and 5”.4
10. Following its receipt, the letter of 4 August 2023 was disclosed to Core Participants. They were invited to make written submissions upon the same by 6 September 2023. Written submissions were sent to the Inquiry on behalf of the Core Participants represented by Howe+Co and Hudgell Solicitors respectively on 4 and 6 September 2023 and on behalf of Post Office Limited on 6 September 2023. Thereafter, those acting for Mr Jenkins were invited to respond to those submissions. They were also asked to address the issue of whether a hearing should be convened to hear oral submissions about whether I should invite the Attorney-General to provide an undertaking as sought on behalf of Mr Jenkins. The Inquiry received written submissions from Mr Jenkins’ legal representatives responding to the submissions of Howe+Co, Hudgell Solicitors and Post Office Limited on 11 September 2023. Those written submissions also contained a request that I should convene a hearing to receive oral submissions.
11. I declined to convene a hearing. I took the view that all relevant submissions could be made in writing. This is a view which, in my opinion, has been amply justified by the content of the written submissions identified above and in the following paragraphs. I made directions which allowed for written submissions to be made on behalf of the Core Participants represented by Hodge Jones and Allen, by the recognised legal representatives of the Metropolitan Police and by Counsel to the Inquiry. I also directed that Mr Jenkins representatives could respond in writing to any written submissions received on behalf of the clients of Hodge Jones and Allen, the Metropolitan Police and/or made by Counsel to the Inquiry.
12. On or about 12 September 2023 I received written submissions on behalf of the Core Participants represented by Hodge Jones and Allen. On 19 September 2023 Metropolitan Police indicated that they wished to rely upon the written submissions dated 28 October 2022 which they had filed in response to the application first made on behalf of Mr Jenkins that I should seek an undertaking. Counsel to the Inquiry5 provided written submissions upon whether I should seek an undertaking on 2 October 2023. On 10 October 2023 Mr Jenkins’ legal representatives filed a response to the submissions made Hodge Jones and Allen, Metropolitan Police and Counsel to the Inquiry.
13. The Core Participants represented by Howe+Co and Hudgell Solicitors oppose my seeking an undertaking from the Attorney General as does Counsel to the Inquiry. Post Office Limited are neutral as to what I should do in this regard as are Metropolitan Police. The Core Participants represented by Hodge Jones and Allen do not agree amongst themselves as to the course I should adopt; accordingly their legal representatives have filed submissions in which they alert me to the advantages and disadvantages of seeking an undertaking without inviting me to a particular course of action. In their three sets of written submissions on behalf of Mr Jenkins, his legal representatives present detailed arguments in favour of me seeking an undertaking from the Attorney General.
14. Notwithstanding that Mr Jenkins has made two witness statements relating to phase 3 of the Inquiry which, he says, answer all the questions asked of him in the first Rule 9 request, I proceed on the basis that Mr Jenkins wishes me to seek an undertaking from the Attorney General in respect of the evidence he has provided and will provide in relation to phase 3. He also invites me to seek an undertaking in respect of any evidence he provides in respect of phases 4 and 5 of the Inquiry’s investigations.
15. I have read all the written submissions and considered them with care. However, there is a need to produce this decision quickly given that Mr Jenkins is due to file a witness statement in response to the second Rule 9 request within 7 days after the provision of this Ruling. Accordingly, this decision does not seek to engage with or analyse many of the detailed points which have been advanced by Mr Jenkins’ legal representatives or those who oppose the view that I should invite the Attorney-General to give the undertaking sought on behalf of Mr Jenkins. Rather in the paragraphs which follow I set out the main reasons which have led to my conclusion.
Discussion
16. In Ruling 1, I expressed the view that I should not seek an undertaking from the Attorney General as suggested on behalf of Mr Jenkins unless I was of the view that the grant of such an undertaking was necessary so as to ensure that I was in a position to fulfil the Inquiry’s Terms of Reference – see paragraph 14. At paragraph 15 of that Ruling I set out my view that “The Inquiry already has a significant body of evidence concerning the knowledge, conduct and activities of Mr Jenkins” and I went on to describe in general terms the nature of that evidence. At Paragraph 16 I concluded that it was not necessary, to fulfil the Inquiry’s Terms of Reference, that I should request an undertaking from the Attorney-General as suggested on behalf of Mr Jenkins.
17. I am still of the view that the paramount consideration to be taken into account in the exercise of the discretion conferred upon me6 to seek an undertaking from the Attorney-General is whether the grant of an undertaking is necessary so as to ensure that I can fulfil the Inquiry’s Terms of Reference. Nothing in the submissions filed on behalf of Mr Jenkins persuades me otherwise.
18. In relation to phase 3 of the Inquiry, Mr Jenkins has filed two witness statements. As his legal representatives point out, however, that, of itself, does not bar him from exercising the privilege of declining to answer questions which may incriminate him. However, In Ruling 1, I expressed the view that such are the other sources of evidence available to the Inquiry in relation to phase 3 that it was not necessary to seek an undertaking from the Attorney General in order that I would be in a position to fulfil the Inquiry’s Terms of Reference. There has been no alteration in circumstances in relation to availability of evidence which leads me to a different view. Indeed, as Counsel to the Inquiry point out at paragraph 14 of the submissions dated 2 October 2023, the Inquiry has now received considerably more evidence about the knowledge, conduct and activities of Mr Jenkins than was available to me when I issued Ruling 1. His legal representatives do not disagree – see paragraph 9.a of their written submissions dated 10 October 2023.
19. I am also satisfied that there is a very considerable body of evidence which is available to the Inquiry about Mr Jenkins’ knowledge of and conduct and activities in the course of prosecutions against sub-postmasters (phase 4) and involvement with Second Sight and the conduct of the group litigation (phase 5).
20. This body of evidence is quite independent of any evidence which Mr Jenkins may provide in response to the second Rule 9 request. I have already heard and seen a substantial amount of evidence in the phase 4 hearings which have taken place which provides insight into Mr Jenkins’ conduct, knowledge and activities relating to the issues which are being investigated in that phase. In addition, important evidence about his involvement in criminal proceedings against sub-postmasters will emerge in the case studies which will be investigated in November and December 2023. I am satisfied that significant evidence will be adduced about the involvement of Mr Jenkins (if any) with Second Sight and the role he played (behind the scenes) in the group litigation when phase 5 is under investigation in early 2024.
21. In my view, paragraph 14 of the submissions made by Counsel to the Inquiry and paragraph 9.a of the response of Mr Jenkins’ legal representatives must relate as much to phases 4 and 5 of the Inquiry’s work as they do to phase 3. In the context in which those paragraphs are written no other conclusion is reasonably possible. However, even if I am wrong about that, I am satisfied that there are sufficient sources of evidence available, independent of Mr Jenkins' own written and oral evidence, which justifies the view which I hold that an undertaking from the Attorney General is not necessary in order for me to fulfil the Inquiry’s Terms of Reference as those Terms relate to phases 4 and 5 of the Inquiry’s investigations.
22. Accordingly, I remain firmly of the view that it will be possible to fulfil the Terms of Reference of the Inquiry regardless of whether Mr Jenkins provides evidence to the Inquiry. I accept without reservation the submission made on his behalf that he could, potentially, provide important evidence to the Inquiry. To repeat, however, I am satisfied that the main thrust of any evidence which he might give can be brought before me from other sources, especially from contemporaneous documents and the persons who were substantially involved in prosecutions, the work performed by Second Sight and the group litigation. I should say that I have reached that conclusion notwithstanding the points made by Mr Jenkins’ legal representatives at paragraph 22 of their submissions filed at the Inquiry on or about 11 September 2023.
23. In support of the application made to me that I should review my refusal to seek an undertaking from the Attorney General, Mr Jenkins’ advisors suggest that, in recent years at least, chairs of statutory inquiries have shown an increased willingness to invite undertakings from the Attorney General in respect of witnesses to be called before the inquiry and who are under investigation by the police in relation to alleged criminal conduct.
24. If it is being suggested that the actual decisions made by chairs in other inquiries constitute some kind of precedent which I should follow I disagree. In all the decisions of other chairs which have been brought to my attention there is an acceptance by the chair that the decision under consideration should be made on the basis of the pertinent facts and circumstances prevailing in the particular inquiry. That is a proposition which I accept and indeed articulated in Ruling 1 – see paragraph 14. That does not mean, however, that I am in some way bound by individual decisions made by chairs to invite (or refuse to invite) undertakings from the Attorney General.
25. In the submissions made on behalf of Mr Jenkins which are dated 10 October 2023 (see paragraphs 4 and 5) reliance is placed upon an assumption that Ms Penelope Thomas, a potential witness who was a fellow employee of Mr Jenkins at Fujitsu, will be unable to provide evidence on the grounds of ill-health. It is argued that her absence from the Inquiry is an important reason why the undertaking suggested by Mr Jenkins’ advisors should be sought and granted.
26. The assumption that Ms Thomas will not provide any evidence to the Inquiry is not as yet well founded since I have made no decision about the participation of Ms Thomas in the Inquiry nor what form it should take if I compel her involvement. Further, and in any event, the Inquiry is actively pursuing lines of investigation as to witnesses who might be able to give evidence about issues raised with Ms Thomas in the Rule 9 request served upon her. I do not regard the arguments developed in paragraphs 4 and 5 of the submissions of 10 October 2023 as being such that I should be deflected from my view that alternative sources of evidence will be available about the issues covered in the Rule 9 requests served upon Mr Jenkins should he rely upon his right to decline to answer questions which might incriminate him.
27. I turn, finally, to the submission advanced in considerable detail in all the written submissions made on behalf of Mr Jenkins to the effect that fairness demands that I should invite the Attorney General to give the undertaking sought on behalf of Mr Jenkins.
28. For the purposes of this decision I am prepared to assume that there may be circumstances in which fairness to a particular witness demands that an undertaking from the Attorney-General should be sought. However, I am satisfied that Mr Jenkins has not been the victim of unfairness as yet and I am determined that he should not become the victim of unfairness as the work of the Inquiry progresses.
29. I acknowledge that late disclosure of documents (by Post Office Limited) occurring in the days immediately before Mr Jenkins was due to give evidence in May and July was most unfortunate. That disclosure was the reason why his giving evidence in July was postponed. The late disclosure would probably have led to a postponement of his giving evidence in May, too, quite independently of his indication shortly before his evidence was due to be given that he was willing to give evidence about the whole of the first Rule 9 request served upon him. I do not accept, however, that the unfortunate postponement of Mr Jenkins’ oral evidence gave rise to any unfairness to Mr Jenkins.
30. I acknowledge, too, that the making of witness statements and the giving of evidence before the Inquiry for a person of the age of Mr Jenkins and with his health problems would likely cause significant anxiety and stress. No doubt the postponement of his giving oral evidence added to that anxiety and stress. That does not mean, however, that Mr Jenkins has been treated unfairly.
31. As to the future, Counsel to the Inquiry has suggested that I make directions which are aimed at lessening the burden upon Mr Jenkins in relation to answering the second Rule 9 request – see paragraph 21 of the submissions of 2 October 2023. At present, Mr Jenkins is required to answer the whole of the second Rule 9 request by close of play on 30 October 2023. If I make the directions suggested by Counsel to the Inquiry Mr Jenkins would need to answer those questions relating to phase 4 of the Inquiry by 4 pm on 3 November 2023 and he would have until 4pm 5 January 2023 to answer the questions relating to phase 57. The potential disadvantage to Mr Jenkins should I make such directions is that he would be required to give evidence both in November/December 2023 and sometime after 5 January 2024. I would be grateful if those acting for Mr Jenkins would inform the Inquiry by 4pm, 27 October 2023 whether it wishes me to make the directions referred to above.
32. I would like to record my thanks to all those who took the trouble to provide me with written submissions upon Mr Jenkins’ application for a review of my decision of 16 November 2022.
Sir Wyn Williams
23 October 2023
1 He answered questions 1 to 15 and questions 53 to 56. He declined to answer questions 16 to 52 in reliance upon the privilege against self-incrimination.
2 Mr Jenkins was scheduled to give oral evidence on 6 and 7 July 2023.
3 See paragraph 4 of the letter.
4 See paragraph 4 of the letter.
5 The written submissions were composed by Mr Beer KC and Mr Blake; however in this decision I refer to the authors as Counsel to the Inquiry.
6 Section 17(1) Inquiries Act 2005
7 This sentence applies whether or not Mr Jenkins decides to rely upon the privilege against self-incrimination.
