Gareth Jenkins, the former Fujitsu engineer who has become a person of interest to the Metropolitan Police, has demanded certain assurances from the Post Office Horizon IT inquiry before he gives evidence.

Jenkins, the subject of the first Clarke Advice and a spectre at the feast during the Bates v Post Office litigation wants an undertaking from the Attorney General that he will not be criminally prosecuted over any testimony he gives to the inquiry.

This is not an unheard-of request. It was put to use recently in the ongoing Grenfell inquiry. If a potential witness asks for an ‘Attorney General’s undertaking’, and it is supported by the inquiry chair, then the AG makes a decision.

To help the chair decide whether he will support an application for an undertaking, core participants can make representations. In the Grenfell inquiry, lawyers representing victims (and the Royal Borough of Kensington and Chelsea) opposed granting undertakings, but the inquiry panel requested it be supported, and the AG went ahead, giving the undertaking to individual witnesses, but barring corporates.

Even if a request is supported by an inquiry, it may be refused. Ismail Abedi, the elder brother of the Manchester Arena bomber sought an undertaking before he gave evidence at the Arena bombing inquiry. That was refused. Abedi was ordered to give evidence anyway. He fled the country and was convicted in his absence of failing to comply with a notice to give evidence to the inquiry at Manchester magistrates court. There is now a warrant out for his arrest.

What’s the right thing to do?

This is a very tricky one for Subpostmasters, the inquiry and the Attorney General. Obviously what Jenkins has to say is of interest and will assist the inquiry if he feels able to answer freely and frankly without worrying about self-incrimination.

If he is not granted the undertaking he may refuse to answer certain questions for fear he might incriminate himself.

Crucially, even if he is given the undertaking, it is restricted to the evidence that he provides to the inquiry (and may be restricted still further – eg oral evidence only). It also doesn’t stop other evidence given to the inquiry being used against him. If the police and CPS feel there is a case against Jenkins without using the evidence he gives to the inquiry, he can still be prosecuted.

Subpostmaster core participants are currently being consulted on the matter by their lawyers.

The Metropolitan Police investigation – Operation Olympos – which was launched in January 2020, will soon be approaching its third anniversary. So far, two people have been questioned (one of them three times) under caution. As of 12 September this years, no arrests have been made.

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