With respect

There are two interesting omissions from the Post Office Inquiry's latest list of witnesses: Lord Neuberger and Sir Jonathan Swift

The list of witnesses expected to give evidence to the Post Office Inquiry has been published. It includes Brian Altman, Lord Grabiner and Anthony De Garr Robinson (all KCs); several GCs or acting GCs for the Post Office (Chris Aujard, Susan Crichton, Jane MacLeod, and current incumbent Ben Foat); as well as other lawyers who acted for the Post Office (from Womble Bond Dickinson and Norton Rose Fulbright; I think this may relate to the recusal application) as well as senior civil servants, politicians and former and current Post Office execs (I noted Paula Vennells, Alisdair Cameron, Angela Van Den Bogerd, Tim Parker, and Alice Perkins ). There are old favourites too: Jarnail Singh is to return, but not apparently Rob Wilson, as well as another key in-house lawyer, Rodric Williams.

One former judge is included in the list, Sir Anthony Hooper, who chaired the Compensation and Mediation Scheme, and has indicated he told a senior manager that Horizon and not the sub-postmasters was the root of all cases before him. Who that was and when that was is going to be a critical moment.

I am still digesting the list but two omissions stand out. Lord Neuberger and Sir Jonathan Swift. It may be the case that they will supply written evidence and that a decision on calling them has yet to be made. I consider here arguments that they should give oral evidence.

Lord Neuberger gave advice on the infamous recusal application and we were told by Counsel to the Inquiry in his opening submissions that Lord Neuberger advised in writing and attended a Board meeting (presumably to advise in person). Lord Neuberger’s evidence on his instructions, which might have been entirely in writing, and what he was told and said at the Board meeting (which I think can only fully be addressed by oral evidence from Lord Neuberger himself) must be an important part of the investigation of the recusal application. And Lord Grabiner relied on Neuberger’s advice when he, if I have Counsel to the Inquiry’s submissions correct, advised the Board they must recuse

There are various reasons that might be given for not calling a key witness on such an important moment in Scandal but it is to be hoped and expected that one of them is not deference to Lord Neuberger’s status as a former President of the Supreme Court. I would also expect that Lord Neuberger himself would be willing and, with heavy heart but nonetheless, want to give evidence. He is by all accounts (including for what it is worth, my own) a decent man who may or may not have made a mistake on a matter of much significance.

It is more moot whether the Inquiry should consider the justifications Lord Neuberger might offer for taking the case in the first place. Perhaps they regard that as beyond their remit, even though it is a matter of some import.

Lord Neuberger has broken no rule here; he is not regulated in his advisory work even though he practices from a barrister’s chambers. There is a live debate about whether the convention that retired judges do not advise on live cases still subsists. But whether it does or not, there is a question of propriety and judgement; whether a former senior judge should advise on live litigation, moreover, on a judge’s alleged, apparent bias is not a matter lightly brushed aside by debates about judicial convention. And the Inquiry is plainly interested in the idea that lawyers were being used as comfort blankets.

It should also be noted that had this particular comfort blanket been applied successfully, it would have smothered the truth. If the recusal application had succeeded, the Post Office Scandal might very well have been finessed away because the critical, final Bates judgment would not have been given by Mr Justice Fraser (or, probably, anyone else: the case would likely have collapsed).

No one is saying Lord Neuberger would have foreseen this, but his knowledge about the background of the case, and in particular the extent to which it involved allegations of serious miscarriages of justice, might have, perhaps should have raised red flags and I would see that as a matter highly germane to the Inquiry.

A second omission is, in some ways, stranger still.

Sir Jonathan Swift’s name appears over thirty times in the relevant section of Jason Beer KC’s submissions to the Inquiry.

He was involved in the case prior to his ascending to the Bench. I have written about his role here. The Swift review might be unkindly described as his review of a review (Brian Altman’s General Review and other work) of another review (Cartwright King’s ‘Sift’) prompted by Simon Clarke’s advice that PO prosecutions were likely profoundly flawed, itself prompted by Second Sight’s investigations that had surfaced (to use an ugly verb with some history in this story) the problems with PO prosecutions. That list gives us a sense of the infinite regress an organisation unable to do the right thing might engage in.

I say unkindly described because Swift’s review was measurably better than the other ones (other than Second Sight’s and Clarke’s first swings of the bat), even though I think it had significant flaws. One signal strength of it (unless one wants to criticise a KC for not writing “you lying gits” in an advice) was it pointed out to Tim Parker, to whom the review was addressed as its new Chairman, that Post Office had not been telling the truth about remote access.

Most of the interesting questions about Swift’s Review are why the investigations it suggested were stopped, why the Board weren’t given it, and why Parliament and Ministers appear to have been misled about it. He might well have direct knowledge and important things to say about some of those matters. But there are questions about the report itself too as Counsel to the Inquiry has noted. Including:

Was too much reliance placed on the previous advice of Mr Altman and the Second Sight review?

And:

…what information was provided to the Swift Review and, in particular, whether the authors were aware of all of the information which raised reliability issues, which I have mentioned over the course of the past day and a half.

To this, I would add a series of questions about the Swift Review’s handling of what I will call the Gareth Jenkins question.

They are questions for Sir Jonathan alone. With respect, to him and to the Inquiry, I would say the arguments that he, and Lord Neuberger, should be giving oral evidence to the Inquiry are strong.