The chair of the Post Office Inquiry has said he will not take further action to try to force a key witness to appear next month. Jane MacLeod, Post Office general counsel from 2015 to 2019, was due to give evidence over two days in June, but it emerged last week that she was refusing to co-operate with the inquiry.
She was removed from the timetable after refusing to attend to give oral evidence or give evidence remotely.
In an update published today, Sir Wyn Williams explained that the inquiry sent MacLeod a request to produce written evidence and wrote in February to inform her she was being called to give oral evidence.
MacLeod, who is believed to be living in her native Australia, provided a draft witness statement last month but her lawyer said she was ‘questioning… whether she would be able to assist the inquiry further’ by turning up in person.
Williams said the inquiry offered to meet MacLeod’s travel and accommodation expenses, but she had ‘made it clear’ she would not co-operate further.
The chair said his view was that the Inquiries Act 2005 cannot be used to compel witnesses who are based abroad and not UK nationals to give evidence. Even if she could be issued with a notice to attend, methods of enforcement are ‘very limited’. Further, the High Court in England and Wales would not have the power to compel MacLeod to give evidence whilst she is based in Australia.
Even criminal proceedings against MacLeod for failing to provide a reasonable excuse for failing to comply with an Inquiries Act notice would not bring her before the inquiry, the chair said. ‘A magistrates’ court would have to convict Ms MacLeod in her absence and sentence her to a term of imprisonment of four months or more. In those circumstances, it may be that extradition proceedings could be initiated against Ms MacLeod,’ said Williams. ‘Assuming that it was proper and possible to take all of those steps, it would be an extraordinarily long process. I am in little doubt that it would be impossible to do that within a reasonable timeframe for me to report to parliament.’
He noted there had been ‘a considerable amount of disclosure’ on issues relevant to MacLeod and he would compare this to what she said in her witness statement. She had been a key figure as the Post Office launched a sustained and costly defence to the group litigation brought by hundreds of sub-postmasters – a defence which included the unsuccessful application for a High Court judge to recuse himself.
‘Whilst it would have been greatly preferable to hear from Ms MacLeod, I do not consider that her absence prevents me from establishing the facts of her involvement,’ added Williams.
MacLeod was admitted as a solicitor in England and Wales in 1993. She is currently listed as non-practising.
Chair’s statement regarding former Post Office General Counsel, Jane MacLeod
Many of you will have noticed that Jane MacLeod was listed to give evidence on 3 and 4 June 2024, but that her name has been removed from the timetable. I wish to make a brief statement on this matter and the background to Ms MacLeod’s removal from the timetable.
The Inquiry sent Ms MacLeod a request to produce a written witness statement pursuant to rule 9 of the Inquiry Rules 2006. I was satisfied before seeing Ms MacLeod’s draft witness statement that she would be an important witness from whom I wished to hear oral evidence. On 23 February 2024, the Inquiry wrote to Ms MacLeod to inform her that she was listed to give oral evidence on 3 and 4 June 2024. Thereafter, my team and Ms MacLeod’s representatives liaised regarding practical arrangements for her attending the Inquiry to give evidence.
Ms MacLeod provided a draft of her witness statement on 11 April 2024. Her recognised legal representative informed the Inquiry that, due to the passage of time, Ms MacLeod considered that her written statement was the best evidence that she could offer and that she was “questioning…whether she would be able to assist the Inquiry further” by providing oral evidence. The Inquiry restated its position that it considered it important to hear oral evidence from Ms MacLeod. Further, it offered to meet Ms MacLeod’s travel and accommodation expenses. However, Ms MacLeod has made it clear that she will not co-operate with the Inquiry by providing oral evidence, whether by attending the Inquiry in person or by giving evidence remotely via live video link.
I have considered the options available to me in respect of Ms MacLeod. I note that the conventional view is that section 21 of the Inquiries Act 2005 cannot be used to compel witnesses who are based abroad and not UK nationals to give evidence. If that is correct, then I have no further express power under the Inquiries Act 2005 to compel Ms MacLeod to attend. However, even if that conventional view is wrong, I consider that there is little benefit in serving Ms MacLeod with a notice under section 21. Issuing the notice is different from enforcing it, and I consider that the methods of enforcement available to me are very limited in respect of a person who is resident abroad.
First, I could seek an order of enforcement in the High Court pursuant to section 36 of the Inquiries Act 2005. However, the High Court in England and Wales would not have the power to compel Ms MacLeod to give evidence whilst she is based in Australia. As such, section 36 does not take matters much further.
Second, section 35(1) of the Inquiries Act 2005 provides that a person is guilty of an offence if he or she fails without reasonable excuse to do anything that he or she is required to do by a section 21 notice. For the purposes of argument, I shall assume, without making a final decision, that where a non-UK national who, without reasonable excuse, fails to comply with a section 21 notice served whilst he or she is outside of the UK, he or she commits a criminal offence. Even in those circumstances, this would mean that Ms MacLeod may face criminal sanction in this country, but it would not bring her before the Inquiry. In order to do that, a magistrates’ court would have to convict Ms MacLeod in her absence and sentence her to a term of imprisonment of four months or more. In those circumstances, it may be that extradition proceedings could be initiated against Ms MacLeod: see section 148(5) of the Extradition Act 2003. Assuming that it was proper and possible to take all of those steps, it would be an extraordinarily long process. I am in little doubt that it would be impossible to do that within a reasonable timeframe for me to report to Parliament.
I therefore consider that there are no adequate means of compelling Ms MacLeod to attend pursuant to the Inquiries Act 2005. However, I note that I have received a considerable amount of disclosure on the issues that are relevant to Ms MacLeod. I shall be able to compare what Ms MacLeod says in her witness statement alongside the extensive contemporaneous documentation I have received. Whilst it would have been greatly preferable to hear from Ms MacLeod, I do not consider that her absence prevents me from establishing the facts of her involvement in the matters relevant to the Terms of Reference. As such, I propose that we read Ms MacLeod’s statement into the record. 24 May 2024
Sir Wyn Williams
