Independent report

Core Participant Protocol

Updated 22 September 2021

Purpose of the Protocol

1. The purpose of this Protocol is to:

• Explain what a Core Participant is;
• Explain the rules governing applications to be designated a Core Participant in this Inquiry;
• Notify those who may wish to be designated a Core Participant in this Inquiry that applications may now be made, and explain the process for making such an application; and
• Explain the designation of recognised legal representatives in this Inquiry.

Core Participants in the Inquiry

2. A Core Participant is a person, an organisation or other entity with a significant interest in the Inquiry and designated a Core Participant in the Inquiry pursuant to Rule 5 of the Inquiry Rules 2006.

3. Core Participants enjoy participatory rights in the Inquiry. Anyone designated a Core Participant will:

• be provided with disclosure of evidence which the Chair considers is relevant to their participation in the Inquiry. Such disclosure will be subject to any restriction orders issued by the Chair under section 19 of the Inquiries Act 2005;
• have the opportunity to make opening and closing statements via their recognised legal representatives (unless the Chair directs otherwise);
• be able to suggest lines of questioning at oral hearings via Counsel to the Inquiry;
• be able to apply through their recognised legal representatives to the Chair to ask questions of witnesses during a hearing; and
• be provided with advance copies of the Inquiry’s reports (including the final report)prior to publication.

4. It is, however, important to stress that you do not need to be designated as a Core participant in order to:

• provide information or evidence to the Inquiry or to be a witness during its proceedings.
• receive expenses for attending the Inquiry as a witness if the relevant criteria are met;
• watch or attend public hearings (unless the Chair decides to hear evidence in private); or Core Participant Protocol
• read transcripts of hearings, witness statements and other documents or evidence that is available on the Inquiry’s website.

Rules governing the grant of Core Participant status

5. When considering applications to be designated a Core Participant, the Chair will have regard to Rule 5(2) of the Inquiry Rules 2006 which states that when determining the applications, the Chair must consider, in particular, whether:

• the person played or may have played a direct and significant role in relation to matters to which the inquiry relates;
• the person has a significant interest in an important aspect of the matters to which the Inquiry relates; or
• the person may be subject to explicit or significant criticism during the inquiry proceedings or in the report, or in any report.

6. Whilst applications are welcomed from those who suggest that one or more of the circumstances mentioned in Rule 5(2) exist in their case, the Chair is not obligated to designate anyone as a Core Participant on the grounds that such circumstances are found to exist in the case of such an applicant. The Chair will additionally have regard to Section 17(3) of the Inquiries Act 2005, which requires him to act fairly and to avoid any unnecessary cost. Indeed, the Chair has a wide discretion in considering applications and this will be exercised with an open mind; fairly; consistently, and objectively.

7. As was explained in Statement of Approach 004, it is not mandatory for persons who were affected by the operation of the Horizon IT system to be designated as Core Participants in order to play a role in the Inquiry. It is possible to be a witness or to attend hearings without such designation. Indeed, the Rules also include provisions for the recognition of legal representatives for witnesses without needing those witnesses to be Core Participants.

8. It is recognised that a broad range of people, organisations and other entities have been affected by the operation of the Horizon IT system in a wide variety of ways.

Invitation to submit applications to be designated a Core Participant

9. Applicants are invited to submit applications for designation as a Core Participant to the Inquiry no later than 20 July 2021 by email to: solicitor@postofficehorizoninquiry.org.uk or by post to: PO Box: Post Office Horizon IT Inquiry, 1 Victoria Street, Westminster, London. SW1H 0ET.

10. If an applicant requires assistance with making an application, they should contact the Inquiry at POSecretariat@postofficehorizoninquiry.org.uk

11. Applications should not exceed 5 pages of A4 paper and must:

• state the factual basis for the application, and in particular:
  • i. State the applicant’s connection with the matters being investigated by this Inquiry - e.g. state whether they were a sub-postmaster who was investigated or prosecuted in respect of alleged shortfalls (or similar), or a claimant in the Group Litigation against the Post Office, a family member of such a person (and, if so,whether that person is themselves seeking designation as a Core Participant,and why designation as a Core Participant is justified), a current or former Post Office employee, or Fujitsu employee or employee of the Department for Business, Energy and Industrial Strategy (BEIS) or of UK Government and Investments (UKGI);
  • ii. Identify by paragraph number the topics, if any, in the Inquiry’s Terms of Reference on which the applicant could give evidence;
• specify, having regard to the factual basis for the application, how the applicant satisfies one or more of the criteria in Rule 5(2) of the Inquiry Rules 2006
• indicate how the grant of Core Participant status would assist the Inquiry in furtherance of its Terms of Reference;
• confirm the applicant provides consent to be designated a Core Participant. It is expected that anyone applying for Core Participant status would be willing to be designated a Core Participant before submitting their application;
• confirm whether the applicant is represented or wishes to be represented by a legal representative;
• if the applicant is legally represented, details of the legal representative.

12. The Inquiry will assist individuals who do not have legal representation to complete the application.

13. The Chair will consider all applications submitted and, if he considers that further information is required before he can make a decision, he may require the applicant to provide such further information as he considers necessary. Further, if he considers it to be necessary, the Chair may require an applicant to appear before him to make an oral application for core participant status.

14. It is the Inquiry’s aim to consider and make decisions on Core Participants’ applications expeditiously. The Chair will begin the process of making decisions as soon as applications are received. In any event for applications received by 20th July 2021, the Chair will issue decisions on those applications by 10th August 2021 unless exceptional circumstances intervene. Applications submitted after the deadline will be considered in accordance with the criteria in paragraph 11 above.

Applications submitted prior to the publication of the Core Participant Protocol

15. The Inquiry asks any person who had submitted an application for Core Participant status prior to publication of this protocol to check it is compliant with the requirements outlined in paragraph 11 of this Protocol. Any missing information should be submitted as soon as reasonably practicable and in any event by 20th July 2021 so that the Inquiry has a complete application for consideration. Individuals without legal representation requiring assistance with checking the compliance of their Core Participant status applications, can approach the Inquiry for assistance. Contact details can be found in paragraph 10.

Designation of recognised legal representatives

16. The Inquiry’s designation of recognised legal representatives for Core Participants is separate from the Chair’s decision to designate an individual as a Core Participant.

17. Where a Core Participant appoints a qualified lawyer to act on their behalf, the Chair will determine whether to designate that lawyer as that Core Participant’s recognised legal representative for the purposes of this Inquiry, having regard to Rule 6 of the Inquiry Rules 2006.

18. Where two or more Core Participants with similar interests or other factors set out in rule 7(1) of the Inquiry Rules 2006 seek to be legally represented, the Chair will direct in accordance with rule 7(2) of the Inquiry Rules 2006 that those Core Participants shall be represented by a single legal representative if he considers that:

• the interests of the Core Participants in the outcome of the Inquiry are similar;
• the facts that they are likely to rely on during the Inquiry are similar; and
• it is fair and proper for the Core Participants to be jointly represented.

19. In circumstances where the Chair makes such a direction, the Core Participants must agree the designation of a single legal representative. If such agreement cannot be reached within what the Inquiry considers a reasonable time, the Chair will designate an appropriate lawyer who he considers has sufficient knowledge and experience, to act as a legal representative for the Core Participants.

20. Once the Inquiry has considered the applications for Core Participant status, decisions will be made accordingly, to designate recognised legal representatives having regard to Rules 6 and 7 of the Inquiry Rules 2006.

Applications for legal representation at public expense

21. Section 40 of the Inquiries Act 2005 enables the Chair to grant an award in respect of legal representation to an individual:

• who is providing evidence, or producing a document, to the Inquiry, or
• who in the Chair’s opinion, has a particular interest in the Inquiry’s proceedings or outcome of the Inquiry, to justify an award.

22. It also provides the Chair with a discretion to award expenses and legal costs to those who give evidence irrespective of whether they have been designated Core Participants.

23. The grant of an award by the Chair will be subject to the conditions and qualifications determined by the Minister in his Notice of Determination which is annexed to the Inquiry’s Cost Protocol on the Inquiry’s website.

24. Furthermore, the Chair will consider the financial resources of a person who submits an application because rule 21 of the Inquiry Rules 2006 states that the Chair must take into account whether making an award is in the public interest. It should therefore not be assumed that the grant of Core Participant status automatically entitles a Core Participant to receive funding for their legal representation.

25. Applications for legal funding should be made in accordance with the Inquiry’s Costs Protocol which is published here: Post Office Horizon IT Inquiry

Confidentiality

26. As set out in paragraph 3 of this Protocol, the designation of Core Participant status affords an individual access to certain disclosure and an advance copy of reports. Core Participants and their legal representatives must agree to treat the information contained in these materials confidentially. Confidentiality is important to the work of the Inquiry as it helps maintain trust and allows the Inquiry to undertake its work fairly. To this end,Core Participants and their legal representatives will be required to sign confidentiality undertakings before they can have access to certain documents.

27. The confidentiality undertaking will set out the terms that Core Participants and their legal representative will have to adhere to and the terms will include:

• a prohibition on using the information for any other purpose than taking part in the Inquiry’s proceedings (without the express permission of the Inquiry); and
• a prohibition on disseminating or circulating the information provided by the Inquiry to a third party (without the express permission of the Inquiry).