An information tribunal over Eleanor Shaikh’s attempt to get a line in an email unredacted
180 tweets
Welcome again to cyberspace. Today I will be live-tweeting an information tribunal between Eleanor Shaikh (on the left in the photo), the Information Commissioner's Office (ICO) and the Post Office. Eleanor would like a line in an email unredacted. The PO is refusing…
The hearing has started. There is a 500+ page "open" bundle, a "closed" bundle of 21 pages and another authorities bundle. There is going to be an open hearing this morning, a short closed hearing between the Post Office, ICO and tribunal at 2pm…
… and then a reopened hearing "at around 2.15pm"
Richard Hopkins (RH) is speaking for the Post Office (PO).
RH the appeal is about a few words in one email from someone called Tom Cooper. The words are covered by legal privilege and this is agreed. It is whether…
… there is a public interest in unredacting the email. This is the email:
[The ICO, interestingly, sided with ES on this and ordered the PO to unredact the email. The PO refused, hence we go to this tribunal.]
[The email is about Project Brisbane and you can read more about that here:
www.postofficescandal.uk/post/more-info-is-revealed-about-project-brisbane/]
RH this about the PO's ability to rely on privilege ( P ). We say that ES is after the underlying reports behind this email. We want to protect our P. It is fundamentally important that this protection of PO's P rights accords with the Post Office Inquiry expected and asked of us
RH we need a safe space for lawyer/client comms. P is sacrosanct in common law. It's a fundamental principle. P is not something that is only enjoyed by the good guys. It is something enjoyed by those characterised as the good guys and the bad guys.
RH so that's what I wanted to say at the outset. Whilst this tribunal is about a few words in an email from TC in 2020. Its about preserving the principle of P.
It's common ground that the s42 exemption regard P is engaged re this email. What those words are referring to…
… the govt announced its commitment to the POHIT (the Inquiry) on 26 Feb 2020 [when Boris Johnson off the cuff agreed to hold an inquiry in response to a PMQ]. So the Inquiry asked us to waive P up to that point and we agreed.
The tribunal has seen the email. It appears in the open bundle redacted. There are some redactions of email addresses and phone numbers. The substantive redaction is a line in the second par. It is sent by TC from UKGI to the Business Department (BD).
TC was a non-exec and UKGI [UK Government Investments which looks after government shareholdings – inc the PO] official is in an email chain between UKGI officials and BD officials.
[RH is reading out the email "Following up on our discussion a few weeks ago, we've now received a draft report from Herbert Smith looking at the history of what was shared with the Board and BEIS. It's a privileged document so Richard will forward it to you separately.
Although not a definitive account – and it may be we will never get one because many of the Board meetings consisted of verbal briefings…
… – the report supports the idea REDACTED
There is a list in the report. This behaviour seems to have pre-dated Tim Parker's appointment as Chairman."]
RH – The email is referring to Project Brisbane. There is nothing sinister in giving something a codename. It is commonplace when preparing large amounts of legal info. Brisbane was being prepared in anticipation of an inquiry. Brisbane is not a single doc. It is a broader…
… multi-strand project. The part of Brisbane being referred to in this email is in reference to prep being done for a select committee hearing. The wider Brisbane was prep for the inquiry.
RH -TC paraphrases or summarises the memo. He says to the recipients, they will get the Brisbane memo under separate cover. This happens later in the chain. It is said when the memo is shared it's under an info-sharing protocol and nothing about it undermines P
[PLEASE NOTE MY TWEETS ARE JUST A SUMMARY OR CHARACTERISATION OF WHAT IS BEING SAID AT THIS TRIBUNAL – NOTHING IS A DIRECT QUOTE UNLESS IT IS IN "DIRECT QUOTES. Sorry to shout but it is important]
RH the respondents suggest that the waiver of P for the Inquiry (Inq) advances the case for disc of this line in the email. We say it doesn't. Inq was v clear it wanted info up to 26 Feb, but v clear we could and should maintain P re material prepped for Inq.
When it comes to the Inq ability to scrutinise and examine the very issues which drive ES' appeal – of being fundamental public interest. The Inq already had what it needed. By the time of ES' request, Inq had done its work. It conc'd its evidence stages in Dec 2024
By the time of ES request Inq had published vol 1 of its final report. All the nec info had been tested. All relevant info had been heard and posted to Inq website.
All the examination and scrutiny of docs and witnesses had already taken place by the time of ES' FOI. ES in her skele refers to "snippets of ref to PB" put before the Inq. These snippets are wholly incapable of undermining PO's P rights. There is no q of waiver here.
It's beyond doubt the PO has not authorised any disclosure of PB or make public in any way anything to do with PB. Also they have nothing to do with the strand of PB in the TC email.
RH – that's the scene and factual context of this appeal. The first issue we address and that the tribunal will need to satisfy itself about. This is about s42. Everyone accepts the redacted words are P. No dispute on that. So this is about whether the public interest (PI)…
… outweighs the argument for maintaining P.
RH – P is not just on legal advice itself, but comms which evidence P'd advice. The inference principle is set out in our skele – the rights of P will apply where info to be comm'd (eg the TC email) where their disc would give rise to an inference that would give a clue or…
… betray a trend. This covers verbatim phrases, paraphrases and summaries. So it definitely applies to the TC email summary. ES in her Witness Statement (WS) says that if you unredact the line, you reveal the Herbert Smith Freehills (HSF) memo [ie the PB doc]
There has been some ambiguity in ES' case as to whether she is taking a waiver point – in partic by ref to other PB refs in other Inq docs. There is no q of this.
Don't need to say anything more about waiver.
As Michael Deacon [MD – ES' barrister] confirmed this is balancing the P rights against PI – I'll make the PO's case then summarise ES' case.
So – PI in maintaining P [there is a PI argument in maintaining P as well as a PI in disc]. It is worthwhile considering Passmore on P. The fundamental imp of P is not just an abstract right, but a practical right.
P under the common law entitles the P holder to withhold P material from anyone – any inquiry or court, crim or otherwise, no matter how important it would be to a case, or a court or the public. Whether it contains right or wrong. It is an absolute right under common law.
I recognise parliament modified P under FOIA to make P a qualified right rather than an absolute right. But parly was setting up a PI balancing exercise against P, but it is not giving any indication that parly intends that P should carry any less weight than under CL
All parly did was acknowledge that PI grounds could be factored into a balancing exercise. It is v well acknowledged in case law or under FOIA itself there is PI interest in maintaining a s42 exemption. The test…
… is that there has to be some "clear, compelling and specific" reason for disc. How does one frame how high that threshold is. There is no test for that. There is no exceptionality hurdle. But we refer to the Aitchison case in the upper tribunal…
… was that is should be "in the rarest case". Diff between rarest and exceptional is semantics.
What I am putting before you is that the upper tribunal has used that language to summarise the case law.
We say that the fundamental heart of this case – the enormously imp factor animating our appeal is our defence of our P rights – not just in respect of the TC email, but in respect of the PB memo. The driving concern is the "chipping away of our P rights". This is not a
… speculative what if case. ES has already asked for underlying PB material and a waiting complaint before the ICO. Taken together – seeing this not just as a case about some words in the TC email, but the chipping away of its ability to protect its P rights in respect of PB
We say there is an "extremely weighty" PI argument for maintaining our P rights on this email. Don't ask what the harm is of disc these few words – the synopsis or paraphrase of a doc risks chipping away at undermining and exposing PO to args that P over PB is diminished.
If this tribunal went against us and we were in that position we would meet those arguments, but we say there is a PI justification for maintaining P here.
The context of PB – PB was commissioned to assist PO to prep for Inq. The nature of that Inq was to expose PO to "exacting scrutiny in a public forum". P rights have a practical importance. A client – even one on the end of public scrutiny is entitled to P rights…
… it needs a safe space between its clients and legal advisors to get the distillation of legal advice and analysis.
A point which has been underestimated and approached in the wrong way by ES and ICO. The approach taken by PO is the same as the one taken by Inq. We had waived priv before 26 Feb 2020 on request of Inq which recognised we had P thereafter.
The selection of that 26 Feb date was not arbitrary – it is an implicit recognition that the PO needed P to prep for the Inq. The Information Commissioner (IC) was wrong to say the case for privilege diminishes over time. It doesn't. It is wrong to dilute the case for P
… based on the fact it is an old email. It's wrong to do that because the matters the TC email gets at – the memo – re the knowledge of Horizon (H) Issues over a period of time was very relevant.
It's wrong to suggest the TC email and the PB memo were diluted by the passage of time – they were v firmly not at the time of ES' FOI request.
We say the live nature of the Inq at the time of the FOI req is an arg for maintaining P. It would be unfair if the police or reg authorities were to have sight of the advice made re a live inq.
The reality of this case is that the pan of the balancing scales in favour of maintaining P is much weightier than the other side of the balancing scale. In assessing the case in favour of disc… [refers to the Lewis case] there is no presumption in favour of disc in FOIA
instead you need to focus on the partic content of the matter. You must be satisfied transparency etc has a bearing on the specific material under appeal. it's not about PI on H issues or the who knew what when in the scandal. Its about whether there is a benefit…
… in the public seeing these few words over and above the scrutiny and transparency the PO has already been subject to. The info in this email is much less than the ICO and ES suggest. They are trading on the currency of the underlying memo itself.
Any args about the PI in disc of the PB memo itself are for another day. It would be wrong to map the args about disclosing the PB memo onto the partic words in the TC email.
The PI in disc these few words… what is going on in the TC email? What we see is TC's paraphrase or distillation of his reading of the PB memo. He is in no way suggesting anyone should be swayed by his reading. There's no reason for saying TC's thoughts should be a public
pronouncement or a basis for decision-making. TC paraphrases a P report then says you're going to get the PB memo itself. Then the report arrives. The parties to the email chain are not going to adopt any position based on his words.
Insofar as ES and IC say the PI case for the public's ability to scrutinise PO decisions. TC's words are the wrong target. It is not a useful way of scrutinising anything PO did. There is v limited value in disc of this email in understanding PO's actions.
A feature the tribunal really needs to engage with is that by the time of this FOI request made by ES – on 8 May 2025. The PO response was 5 June 2025. If we focus our analysis on that period. The inq had not only commenced and received vast disc it had heard evidence from TC and
others. ES rightly points out these issue of knowledge to which PB relate were fundamentally the stuff of the Inq. They are what the Inq was looking at and hearing evidence about. That's important.
We say it's imp because the transparency and scrutiny of these matters is important, but they were already being delivered by the Inq as a way of testing the issues which didn't impose on P rights PO enjoys in terms of prepping for the Inq. The Inq has done the PI job.
We say ES and IC have not approached this correctly. The issues under consideration were being properly examined by the Inq. The Inq had not by the time of this request had not published vol 2 of its report [it still hasn't]
ES knew vol 2 would be coming on the same issues ES sought info about so the PI in disc the few words from the TC
Judge (J) am I write in saying vol 2 has not been published yet
RH correct
RH concs about who knew what when is for vol 2 and I accept it was not a matter of weeks away, but when ES FOI request was made everyone knew what it was going to do.
J thanks for clarifying
RH the final point we make re the PI balance – at heart what animates the PI in disc is less the TC words in this email, but rather to get at what is in the PB memo itself. It's not really TC's words. It's the memo. That's problem – it's not the subject…
… of this request. The request is for those words.
I have made a positive case and commented on the decision made against us by the ICO. I now want to look at ES case against us re PI. ES says imp to have transparency (TP) about knowledge but these TC words in one email…
"deliver very little in PI terms". ES argues that the passage of time increased the PI in the disc of the info she seeks. On these words in this email – which we say add v little in terms of PI and it's wrong to say the PI case for disc had increased between date of email in 2020
and date of ES FOI. The Inq had done the work. ES seeks to rely on waiver of P in respect of disc to the Inq. There was a v clear demarcation in disc 26 Feb 2020 was made by a well placed body to where it is and isn't appropriate to waive P.
It supports our case, not the Respondents' (ES and IC) case. It simply defies common sense to say the chair of the Inq that the PO would not be taking legal advice re prepping for the Inq. It's not good enough to say "if only you'd known" about PB you might have asked for it.
This Inq knew exactly what the right approach was to requesting a waiver of P material and where it was no appropriate to ask for it to waive its rights. ES pushes back in her skele on the point made by PO re the value being delivered by the Inq.
Just to remind you again whilst PO continues to assert P given whilst prepping for Inq itself. It did put before the inq the underlying docs which inform the legal advice. There is no withholding of info. We rely on the oral evidence given on these issues.
ES says there wasn't very much on this. What you get on doc form is WS. Oral exam of TC is all public domain material. When it comes to TC's written witness statement (WS) – when he dealing with the topic of knowledge…
[RH is telling the tribunal about pars 263 and 264 in which TC writes about inconsistencies in PO documentation. There's no mention of PB in these pars]
RH the point I am making in pars 262 to 265 of TC's statement [he asks the tribunal to read par 265]
Par 265 "Other aspects of the documents I reviewed at this stage were also concerning.
First, when taken together, it seemed to me that POL had never assured itself
that the Horizon system worked in a robust way. I also established that the Swift
Review had not been shared with the rest of the Board. I felt that this was an
important failure which had the effect of depriving the Board of an opportunity
to understand better the extent to which assurances it and third parties had
been given as to the integrity of Horizon were justified and how this might bear
on past actions against SPMs including prosecutions. It would also have given
the Board a better insight into POL's vulnerability in the litigation and may have
led to a more pragmatic approach and an earlier settlement. I also considered
that, had he been properly sighted on the contents of the Swift Review, the
Shareholder NED could have worked with other members of the Board and
Department to understand and act on the implications of the report."
In this part of TC's WS he really is getting into the knowledge of the PO. Obvs TC has chosen to put forward this version – his account – of what happened and what he did. One of many accounts.
In her WS, ES has looked at oral evidence docs and notes that Robert Wilson was questioned on a document which arose from PB. So the Inq had the docs and the witnesses it needed. So ES can't claim it wasn't
There is a problem with the case against me on Inq as put by IC and ES. Our core sub is that the Inq was doing all the TP work. The Rs are saying Inq had all the info, but we think there should be a sidestream Inq "an ES public or sideline inquiry". This is ES and IC case
as I'm characterising it. Saying it would be important and interesting to see what the PO's lawyers were saying to it about the Inq. This is problematic. Suggesting where inqs scrutinise things and then the public can set up
side-inquiries in to material main Inquiries have decided they don't need to see is not in the PI.
The snippets ES highlights as material about PB which was put before the Inquiry. The word Brisbane is not some "cat out of the bag point" that legal advice has been waived.
Or made public. Brisbane is not a doc. A specific memo. Reading refs to PB in fragmentary snippets has nothing to do with the memo TC is referring to or any of the substantive reports. ES in a number of places is eliding and basing her case on the broader issues of what was
in PB reports. ES says PB has great relevance to the H scandal and its release would shed great light on the decisions made by principals in this scandal. We need to focus on the words in the TC email. Even ES fairly enough accepts that there was insufficient
ref in the snippets she relies for anyone to understand what PB was about. So that underlines the cat not being out of the bag. So the fact there was a project name for several strands to prep for the Inq. That's "not some kind of smoking gun" that the public would better…
understand what's going on in the scandal. It's a perfectly normal thing to prep for an inquiry and instruct lawyers to help them, it gets a project name PB in this case. Nothing is "being swept under the rug" all the underlying material did go to the Inq
re the reg and crim inquiries – this is an additional factor in the PI balance. The disc of the TC email "risks harming the PO's ability to defend itself" in these investigations. "PO enjoys rights to a fair trial and where
crim investigation is afoot against us, fair trial rights… create v strong PI rights to protect us against the loss of P rights." It's one thing to say to police or Inq should have access to underlying material than to say it should
be in the public domain or that the public should see your lawyer's view "on where that leaves you". Ofc you must co-operate and provide rel material to police and inqs, but the publication of your legal advice relating to
those underlying materials would make it "very very difficult" to receive a fair trial in the criminal sense or proper process in a regulatory sense.
Finally ES professes not to understand the PO's concern
about the chipping away of P theme. We find it surprising if she doesn't given her case about the TC email is anchored in the PB memo and that she is pursuing the PB reports in her own ongoing complaint
to the ICO. The words of TC do paraphrase the substance of this PB memo. If what happens is that a synopsis of the PB memo comes to be published that
creates risks to PO's ability to continue to defend its P rights – points would be made against us about waiver etc – we do not accept they can be read across, but do be aware where this would lead.
We ask the tribunal to consider what public good would be served by ordering the redacted words in the TC email to be made public and we ask you to allow our appeal.
[RH's submissions have finished. J has allowed a 5 min "comfort break" before hearing next round of subs]
Is anyone getting anything out of this? I never thought I'd find myself live-tweeting a laboured discussion about the important of legal privilege, but hey-ho, here we are.
Obvs if you want to support niche activities and my wider reporting on the Post Office scandal pls do consider what you could probably term a sympathy donation at this point. More info here:
www.postofficescandal.uk/donate/
[tribunal is back]
Will Perry (WP) for the IC – want to focus on crit of IC in response to PO and leave the disco re P to MD (ES's barrister)
The Decision Notice made by the IC (ico.org.uk/media2/e04bch21/ic-421047-j6v0.pdf
notes that the H scandal was v important and weighs heavily on the decision.
Re par 36 of the DN – "On the other hand, the email that contains the withheld information is
five years old. It’s not the report being requested, though this means
the draft report by the Post Office’s legal representatives is also at least
five years old. It’s not recent information, though the Post Office’s need
for confidential legal advice most certainly remains current."
It could have been drafted better. But it is evident from the final sentence of that par that the IC was not placing weight on the age of the advice and didn't come into play when making their decision. If we skip to par 40:
"Section 42(1) isn’t an absolute exemption and shouldn’t be elevated to
such status. In Crawford v Information Commissioner & Lincolnshire
County Council EA/2011/0145, the Tribunal stated that circumstances
must be ‘strong’, rather than ‘exceptional’ in order to override the
inherent public interest in protecting LPP."
and the decision in par 41: "Without undermining the Post Office’s ability to appeal this decision, the
Commissioner considers the circumstances strong enough in this
instance and orders the Post Office to disclose the redacted sentence."
In order to help clarify the IC's decision… RH suggests the IC applies too low a threshold. RH says it should be more than strong. But you need to read par 33 of the decision alongside par 40. Can't read it in isolation. Has to be read in terms of DN as a whole.
The analysis in pars 33 and 40 stem from IC's own guidance on how s40 of FOIA should apply. The tribunal in Bellamy [an authority] said counter to P should be "strong" rather than "exceptional".
[lots of refs to authorities – De Burgh, Bellamy, Crawford – previous information tribunal rulings…]
WP the argument re the passage of time being relevant to the consideration as to whether something should be taken into account… [goes to another authority and asks tribunal to read it. he is not reading it out]
WP the important point is when upper tribunal is about…
exceptionality factors for and against disclosure. So passage of time can be weighed.
[three more authorities chucked in]
[whilst this is going on – it's worth repeating that this information tribunal is ostensibly about whether or not this email should be given to ES as per her FOI request with the sentence in the 2nd par unredacted:]
WP can the PO rely on anything other than P? It tries, but I say these points are over-stated and several were raised for the first time in the grounds for this tribunal. They were not raised in the initial response and response to review.
They also have no evidence to support them. The first risk the PO states is that this might give rise to a potential waiver of the underlying PB memo. We have responded to this in the bundle – we crit PO for not setting out how the PO would respond to a req for the underling PB
memo. And as a result RH is forced to set out his argument in an extremely limited way. [reads from PO skele] – this is about PO being exposed to arguments, but they don't say whether those args would have any merit. Contrast this with the detailed way PO sought to rebut…
ES' argument that there had been a waive of P by info already in the public domain. The PO does not grapple with those principles at all – that waiver is v carefully controlled, that governing principle is fairness. That's partic imp in a FOIA context.
In my submission its entirely unclear this point about the waiver of the underlying PB report has any merit. RH says it has sig wait, but there's no attempt to analyse the strength of this point, it's hard to see how it can be assessed in the overall balance
There's also no attempt at this stage to balance the tension between how disc might result in a waiver, but also then goes to great lengths to say how the TC email has very little or no weight at all.
I'm not saying PO needs to establish proof that disc would encroach on its rights or the rights of its lawyers. Future risks can't be predicted with any degree of certainty. You need a witness to come forward and explain how and why the risks submitted might come forward
… and the PO has not done that. So in the absence of this its hard to put that into the balancing exercise.
Its v difficult to see how a single sentence from an email impacts on investigations of this kind.
The third point is that the POHIT Inquiry (Inq) never sought waiver of privilege past 26 Feb. IC struggles to understand relevance of this point. PB was created to assist PO for Inq. That created an additional PI factor. I don't think the PO refers to any stat that would
compel the disclosure of P material created to prep for the Inq. The PO voluntarily waived P in response to a request from the Inquiry chair. Let's go to the PO response to that request…
from the Inq.
PO says it wants to co-operate, openly and TPly… waiving P in matters relevant to Inq. Then it gives a non-exhaustive list of areas in which it would waive P – my sub is that the withheld info in this appeal is entirely diff to the docs listed there…
There's no suggestion anywhere the Inquiry ever asked the PO to consider waiving P with regard to material used to prep for the Inq itself. the PO is trying to compare apples and pears and it does not help the PO's PI args at all.
Moving on… want to respond to idea that PI test was being met by the Inq at the time of ES' FOI. We accept the underlying doc materials were going to be scrutinised by Inq. We say it's a matter of timing. There is an assertion it was known the Inq would provide a report…
… in the near future, but the problem is there's no indication the matters raised would address the matters in the request. There's no suggestion matters re PB would be published by Inq. That's significant when you view it in the light of the years and sometimes decades…
… victims of the H scandal had to wait for justice.
[asks panel to read what Vol 1 of Inq report says about impact of scandal on Tracy Felstead – a former PO crown office worker – I don't have it to hand, but here is the first interview Tracy gave in 2019 "they didn't care I was just this scared girl" – www.postofficetrial.com/2019/06/post-office-v-mental-health-they-didnt.html]
RH referred to TC's oral evidence and said it was relevant to this tribunal. If so where is the transcript in the bundle? I suggest you don't place any weight on it.
[WP's subs ends]
[Judge announces tribunal is going into the closed session – we will reconvene at 2.15pm]
The closed session is so the tribunal can discuss and ask questions about the redacted words with the IC and PO, excluding ES, because then otherwise she would know…
… what the words are, making the tribunal pointless.
I'll pick up this thread at 2.15pm.
@AliceHarperGC Thanks ma'am!
I have the skeleton arguments from ES and PO re today and some further background information which will help inform a write-up I'm going to start on when today's hearing is over. We're obviously getting closer to what the PO says Brisbane is…
… and what it purpose was or is purported to have been. But it's quite clear it's determined to keep it secret. It argues it has the right to keep lawyer/client comms privileged (ie out of sight of the courts, the public and if needs be, a police investigation)
unless it chooses to waive it. And it certainly doesn't want privileged ( P ) material being handed out via FOI, even if the ICO mandates it – which brings us to today's hearing, due to re-start in three minutes.
As I mentioned earlier – MY TWEETS ARE JUST A SUMMARY OR CHARACTERISATION OF WHAT IS BEING SAID AT THIS TRIBUNAL – NOTHING IS A DIRECT QUOTE UNLESS IT IS IN "DIRECT QUOTES".
J = Judge Harris (who leads a tribunal of three – judge Worth and Ms Pepperell [sp?])
MD – Michael Deacon, Eleanor Shaikh's counsel
ES – Eleanor Shaikh
P – privilege
PO – Post Office
IC – Information Commissioner
PI – public interest
[hearing re-starts]
J welcome back – good afternoon everybody. MD?
MD thank you. we have stuck to timetable so far – we've been given an hour. I may need slightly longer. I know RH needs time to reply
MD I don't feel its nec to address you on procedural background. Short subs on law, then subs. In terms of factual background – I did go over some of this yesterday, but I understand this is a separate case forgive any repetition
J quite alright and proper
MD ES is a classroom assistant works with children with special needs. She has become a successful campaigner on this scandal. As tribunal will be aware this sad state of affairs came about from software used in PO branches. [briefly explains Horizon (H) scandal]
MD at the root of this was a lack of transparency (TP). RH has acknowledged the tenor this, but it's relevant to have in mind for the PI test. We've set out the chronology of this scandal in our skele
MD on 4 March 2020 the Business Dept (BD) announced an inquiry. This was not a full inquiry nor a statutory inquiry. There was no scope for including the role of govt in the inq. We accept as a basic point that at 26 Feb 2020 there was a general announcement to have a general…
inquiry – it was not set out what that was. In Sep 2020 the inquiry was set up on a non-stat basis. Was not until June 2021 the inquiry was made statutory. Hearings from 2022 to 2024, were from April 2024 [he means 2022] onwards
In July 2025 vol 1 of the Inquiry (Inq) final report was published dealing with compensation and human impact. [takes panel to scope of Inq] Relevant period was from the first pilot of H to 1 June 2021 which is when it became statutory.
It looked at bugs errors and defects and H and effects of those…. Remote Access and Fujitsu (F) and the PO's use of it…. the investigation function of the PO…. how facts were disseminated by the PO and F. Governance issues were part of the Inq's scope.
You've been taken by PO to the issue of waiver of P. The short points we make here – there is a recog by the PO that PI could trump P. The cut off point for waiver of P was 26 Feb 2020. But the general principle that P could be overcome by PI was recognised by PO in that act.
Re the protection of P as nec so as not to be unfair to PO through regulatory or crim proceedings – it must be right that the effect of that waiver over legal advice before 26 Feb 2020 would affect ongoing reg or crim proceedings.
eg the Swift Review, [which was both made public through an FOI request from ES and handed to the Inq] The SW is not in the bundle. It's available online.
[MD has a terrible throat-clearing problem, which makes him quite hard to listen to]
It was recognised that not sharing the Swift Review with the Post Office board was a failure of governance.
One of the most sig findings of Swift was that a 2014 a Deloitte report confirmed remote access was possible, directly contradicting public pronouncements made at the time. This finding was not comm'd to the PO board.
A review of the governance failure in not sharing the swift review with the board was made.
On receiving the Swift Review, ES made more FOI requests requesting info relating to Swift Review and as part of that she was given a redacted copy of the Tom Cooper (TC) email which…
is the subject of this appeal.
[ES wants the redacted sentence in this email unredacted]
We acknowledge the Project Brisbane (PB) memo attached to the email chain. This email considers the idea that there are governance concerns. One doesn't speaking of implications of behaviours if that's not the case.
We are here today because we are concerned with this email. In a doc published by the Inq – it seems the view was taken that referrals were made to the SRA in part as a result of PB.
[MD then reads the referral memo]
The email refers to a memo which is part of a wider project which led to the referral of three PO lawyers to the SRA. Bear that in mind.
[now goes to the authorities. admits these are "exactly" the same authorities he went to yesterday. First up DPP R v R case]
This is not about exceptional circs. There is a balancing. Weight is given to P. But you have to weigh it all up on its facts. Look at everything in the
round.
[next authority "at this juncture" – Savage. An upper tribunal (UT) decision]
Very short point I make which is that it is acknowledged that the passage of time can come into play on decisions about disc.
[moves to his subs]
In short RH said bad guys get P too. As a general principle we don't go behind that. The diff in this case is that if you are not a bad guy, but a bad public institution and acts or omissions have occurred which have such grave consequences…
… they engage PI, then that adds to the arg for disc. The TC email is between UKGI and BD about what was known about a conclusion to a memo which was part of PB. RH (Richard Hopkins for the PO) says there's a plan to chip away at P behind this appeal.
We should be concerned about this email. RH tries to argue that the email is not going to add much to wider understanding. Either this email is important or it isn't. It's not connect to anything else. Whether it would result in loss of P over the PB memo
If and to the extent that risk exists, the PI in disclosure overcomes that. It's absolutely right that ES has asked for PB report. Separate matter for another day on its own merits.
RH made much of what ES said in correspondence earlier in this process. Much as she is an experienced campaigner, she was without the benefit of legal advice. In that corr ES accepted the TC email referred to a report which was P'd
When the PO first refused disc. It relied on s42. The PO said TC's email referred to a P'd report. In ES' WS she takes that point forward. Our position is set out in our skele. RH said we had mentioned the possibility that there was a waiver because of other public mentions of PB
we are not in a position to say that as we don't know what's in PB. We're just pointing out public references to PB have already been made.
There's a PI in the PO and govt and officials in govt overseeing the PO. The scandal and public scrutiny being weighty matters of PI.
Linked to that point its not just that these things happened, but v specific issues about how PO and assoc govt personnel handled the scandal, failed to intervene and failed to deal properly with matters arising.
We know PB looked at what was shared with PO board and govt. The email is referring to an idea. The idea is P'd but it should be overridden by PI. It's about govt and PO responses.
to a massive scandal, written in 2020. If there was a live concern then, there's a massive public interest in it.
This is not about getting to the underlying PB report. It's about the mindset of the individuals on the TC email chain.
We do not accept that the primary purpose of PB was to assist the PO with the Inq. When it was commissioned there was a commitment to a review. The PO admits the TC email refers to a PB memo about prepping for a select committee hearing.
It may be that the matters considered in this email became part of the Inq. But it's not about an Inq.
in Savage it was recognised the passage of time can weaken the case for confidentiality. [takes J to another authority – Kessle]
[Kessler, even]
It's about looking at the facts in the round, but we have recognition that the passage of time and absence of harm can weigh in favour of disclosure.
In terms of the diff proceedings to which it can be said the PB could related. At the time of ES' FOI, the Inq had concluded its evidence. It has not published all of its findings. But when we think about potential harm of this email – it's a few words about a state of mind.
It could not affect the Inquiry outcome if published. Advice is there so people can act on it in the rel legal context. That stopped for the PO when the hearings stopped in 2024. The PI in preserving P over that email has diminished, but the PI in the issues therein has increased
[now goes on to waiver]
The Inq was looking at issues of proper governance. There was a waiver till 26 Feb. But there's not much weight can be applied to it. It's not clear how aware the Inq was of PB.
The idea the Inq made a positive informed choice not to request these docs, including this email is not something the tribunal can assume. I accept Inq would assume PO was getting legal advice on Inq, but the idea they thought they were getting that in 2020 is a leap.
there is no evidence that TC ever mentioned PB in his WS or oral evidence to the Inq. Its still relevant what senior personnel were saying about perceived governance issues in 2020.
The PO says the Inq got all the docs underlying PB. The public should not take that at face value.
Even if I were wrong at the Inq only wanting docs up to 26 Feb is sig, there's nothing to stop this tribunal making a balancing judgment on this email. Tribunal should not feel
hamstrung by what was submitted to the Inquiry. Moving on to other poss cats of proceedings. After being finished with the Inq, matters become theoretical.
Whether disc the email could lead to theoretical proceedings in the future. Could it create unfairness? We haven't been taken to any substantiation of that point. In relation to the SRA – it's an interesting aside, but a trial is coming up about whether the SRA can comman
P material if the client does not waive privilege. Nevertheless the two point are – it has not been substantiated how this email could affect any future proceedings.
We know some of the material under the umbrella of PB has led to referrals to the SRA. If this email relates to PB there must be a PI in knowing what it contains if it has led to SRA referrals. We're talking about an email from mid-2020. In relation to future proceedings…
the PO can get legal advice re the proceedings. That will have P and P will be hard to overcome. This is a 2020 email currently unrelated to any proceedings.
The ICO's DN recognised the PO's current need for legal advice, but the 2020 TC email was unrelated to that.
[something has come up – I need to disappear for a bit. apols]
[back – tribunal is wrapping up – says ruling in this case as per yesterday's will be reserved.]
