Case Number: 1200747/03 

5. The parties had failed to adhere to the Tribunal's directions for a single bundle of documents, set out at paragraph 7 of the Tribunal's directions letter of 11 June 2003. Each party had prepared its own bundle of documents. Mr Mercer's bundle extended to 600 pages; the Respondents' bundle extended (eventually) to 1,045 pages. In the event Mr Bourne had prepared a concordance to enable the Tribunal to work from the Respondent's bundle. We are grateful to Mr Bourne for his help in coordinating the use of the two bundles: but the situation should not have arisen in the first place. 

6. In the event, the parties were able to agree a shortlist of just under 140 documents for the Tribunal to read. We have considered all the documents within this shortlist, and a number of documents outside the list: but we have not sought to read documents to which we have not been referred either by a witness in the course of giving evidence, or in the shortlist referred to.

The shortlist, produced after my evidence had been completed, covered the further documents which OU counsel wished to refer to, and a presumption by me as to which ones I thought I would need in cross-examination. 

7. Mr Mercer had undertaken a number of surreptitious recordings of interviews or meetings. He produced three tapes, which had been heard by the Respondents, and which both parties asked the Tribunal to listen to. We listened to extracts of the recordings relating to: 

(a)          the two centres meeting on 24 October 2001; 

(b)          Roland Kaye's phone conference on 25 May 2002; 

(c)        Angus Laing 24 July 2004; 

We also heard the entirety of the tape relating to: 

(d)    the Roland Kaye Conference 6 November 2001.

This is not a strictly true version of events. The Respondents had been offered copies of these tapes as a part of the disclosure process, but had not chosen to take up this offer; though transcripts of these conversations were included as part of the final bundle. During Thursday 26 February Respondents’ counsel informally asked if he might borrow my copies overnight to check that the transcripts were accurate; as in fact he later agreed was the case. As a matter of courtesy I agreed to do this, subject to the strict proviso that they were not tampered with and were returned to me first thing the following morning. However, without my agreement, the following morning he handed them directly to you and asked you (and the members) to listen to specified parts of them. Against my objections, that they were less meaningful without the surrounding context and without the body language (and where much of the other participants’ comments were so muffled that it was not possible to place any reliance on their tone), the Tribunal chose to listen to them – and rely on the attitudes allegedly shown by them - as a major element of the evidence. This was even though, to the best of my knowledge, they were never formally entered into evidence. Since that time I have not been allowed any access to these particular tapes (and certainly have not been given document numbers or provided/returned to me). This meant that not merely was I disadvantaged, especially as I was never allowed the opportunity to comment on the impressions that they seem to have conveyed, but I was not able to check whether they had been tampered with. The use of the term ‘surreptitious’ is somewhat prejudicial. It is true that I did not inform the Respondents that I was taking notes in this form, but I only recorded the discussions to which I was privy (and the transcripts were open to challenge), in the same way as Katie Stocks was able to the same for the Respondent. It should be remembered that at none of these meetings did I have a witness present. As the quality of the recordings showed, there was never any intention that these should be played to the Tribunal – that was its own decision, against my wishes.

8. We heard evidence at length from Mr Mercer, over a period of four days (Wednesday 25 February to Monday 1 March). We heard evidence from Mr Mercer's witnesses during the course of the morning of 25 February. We listened to the tapes on the afternoon of Friday 27 February. We heard the Respondent's three witnesses on Monday 1 and Tuesday 2 March. Both parties made oral submissions on the afternoon of Tuesday 2 March. Both parties produced copy authorities, and Mr Mercer provided us with written submissions in addition to his oral submissions.

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