The title of the BBC report about the Sharon Shoesmith / Ofsted / Ed Balls disclosure row now reads Ofsted changed Shoesmith report. The documents in the BBC’s possession also apparently show an instruction to delete documents relating to “Baby P” or “Haringey”.

As to the editing, the fact that an important report went through multiple drafts is not itself surprising. What matters, in the context of disclosure obligations, is what drafts existed at the moment that litigation appeared likely, what happened to the preceding drafts, and what evidence exists within any of the surviving versions as to changes made to them? Even in an ordinary case, all this leads up to the main question as to what documents existed or ought to have existed, and in what form, when the cause of action arose. Here, there is an added element, because the changes included a clear and consistent trend – they worsened the conclusion against Shoesmith. The BBC article has examples.

So what made a whole committee of drafters decide that their first version had been too kind to a woman whose job and livelihood turned on their findings? What was the date and time of the edits? What, if any, interaction was there between Ofsted and Mr Balls’ department (from which it is supposed to be independent) and when? This is basic evidential stuff, exactly the sort of evidence which, when supplemented by witness testimony, leads to justice. The judge will also take account of what is known about the players and will consider, for example, whether anything about Ed Ball’s record in government might lead one to think that it possible that he would seek to influence an outcome in his favour by exerting pressure on others – he would doubtless not attach too much weight, for example, to the Daily Mail headline of 19 October reading Ed Balls branded a ‘bully’ by MPs after he railroads appointment of Children’s Commissioner .

The judge may not have to rely on such extraneous material – much more can be deduced from electronic evidence than from paper equivalents, which is precisely why preservation and proper production of electronic documents is so important. With the electronic data exchanged, Shoesmith’s lawyers may find the material they need. What do you mean, you don’t have the electronic documents even now? Surely Ofsted has not been allowed to get away with paper disclosure after all this?

We do not yet know (or, at least, I do not yet know) what was the ambit of the instruction to delete documents. It was, Ofsted has said, countermanded on the same day. That tells us nothing as to what, if any, documents were deleted between the giving of the instruction and its withdrawal. It tells us a great deal, however, about the culture within Ofsted. When Sharon Shoesmith’s claim is long settled (as it surely now must be) the fact that a body of Ofsted’s status – clearly a creature of government whatever it is public mandate is – thinks it right to order the deletion of emails has much more long term significance. We are not talking here of a standard part of a regular drafting process, but an express instruction to delete. Is this what happens, under an administration which introduced the Freedom of Information Act, the Human Rights Act, and all the employment legislation designed to ensure fairness? Well, of course it is, but it is good to have such a transparent illustration of it.

Home