Legal privilege used to ‘cloak’ messages, key Post Office figure admits

One of the most senior former figures in the Post Office has admitted that the organisation tried to ‘cloak’ information by using legal privilege on internal communications.

The Post Office Inquiry today saw advice from a lawyer in 2011 that, with litigation a possibility, documents should be either marked as privileged and confidential or engineered so that they could be.

A further email from Angela van den Bogerd, people services director at Post Office Ltd, appeared to tell colleagues to make sure everything was privileged therefore not disclosable. 

Inquiry counsel Jason Beer KC asked: ‘Did the Post Office from at least 2011 onwards seek to use claims of legal professional privilege as a tool to cloak communications in privacy?’ Bogerd replied: ‘I didn’t think so at the time [but] from the information I have seen as part of this process then I think there was a tendency to do that.’

The inquiry heard that four potential litigants had emerged in 2011 after the formation of the campaign group Justice For Submasters Alliance.

Emily Springford, a principal lawyer in dispute resolution with Royal Mail Group, emailed Bogerd saying that a document would be deemed privileged only if its ‘dominant purpose’ was to give or receive legal advice. If the dominant purpose was not to obtain legal advice, Springford continued, staff should ‘try to structure the document in such a way that its dominant purpose can be said to be evidence gathering for use in the litigation’.

Bogerd cascaded this information down to colleagues, telling them to preserve all documents and ‘mark communications in relation to these cases as legally privileged and confidential’.

Beer said Bogerd’s diktat was ‘materially different’ from the initial advice from her lawyer and she was trying to make sure all documents could not be disclosed even if they were not related to legal advice.

The inquiry went on to look at the issue of Horizon operator Fujitsu having remote access to branch accounts. If this possibility was known, it is now accepted that Horizon-related prosecutions would be fundamentally flawed and unreliable.

Bogerd said in her witness statement that she had no knowledge that remote access was possible before 2011 or that Fujitsu could alter transaction data.

The inquiry then saw an email sent directly to Bogerd by a Post Office manager in December 2010 which said that they had ‘found out this week that Fujitsu can actually put an entry into a branch remotely’. This was affecting up to 60 branches. Bogerd said she did not remember receiving this email and there was no record of her having replied.

Beer said this suggested that Post Office managers dealt with such issues ‘offline’ to avoid leaving a paper trail.

‘Not that I was aware of,’ Bogerd told him.

The hearing continues.