Post Office Inquiry: Barrister who advised on Horizon cases gives evidence

Post Office Inquiry: Barrister who advised on Horizon cases gives evidence

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good morning sir can you see and hear me
yes I can thank you thank you we’ll be
hearing from Mr Flemington this morning
yes
repeat after me I swear by almighty God
I swear by almighty God that the
evidence I shall give that the evidence
I shall give shall be the truth shall be
the truth the whole truth the whole
truth and nothing but the truth and
nothing but the truth thank you
thank please could you state your full
name H Merck Flemington thank you for
providing evidence to the inquiry today
and also for providing a detailed
written statement I want to turn that
statement that should be in a fund
documents in front of you do you have
that dated the 19th of March 2024 yes I
do and it runs to 195 paragraphs yes uh
could I ask you please to turn to page
47 of the statement yes do you see your
signature yes I do and can I ask you to
confirm whether the contents of that
statement are true to the best of your
knowledge and belief yes it is for the
transcript that is document reference
number
WN
08620 1 0 0 that now stands as your
evidence in the inquiry it will be
published on the website the inquiry’s
website soon I’m going to ask you some
questions about it
now just start with your uh background
you it’s right that you qualified as a
solicitor in 1996 yes and uh in terms of
what’s relevant to this inquiry you were
employed by Royal male group uh as a
lawyer in the group Tech and IP team in
June 209 yes and before then you
practiced as a solicitor both in firms
and in house in the areas of merges and
Acquisitions and other commercial
matters
yeah so as I say you started with Royal
Mail group in 2009 you became head of
legal for post office limit well sorry
Post Office Team in Royal male group uh
in August 2011 yes so still within the
Royal male group but um on the post
office legal team um your evidence is at
that point the post office legal team
was only dealing with non-c contentious
matters is that correct yes so the
conduct of civil and criminal litigation
fell to a different team within the
Royal metal group
yes when post office limited separated
so 1st of April
2012 you transferred to post office
limited as an employee yes and at that
point the post office limited legal team
became responsible for civil and
criminal litigation yes and at that
point you reported to Susan kryon
yes your responsibilities as head of
legal were they ever written down in a
docu in a single
document I believe I would have had a
contract for employment obviously and
the head of legal role would have been
defined
somewhere so defined somewhere but can
you recall roughly what those
responsibilities were it would be in
relation to managing the team of lawyers
U managing the
budgeting um managing them from a
personal Personnel point of
view and would that have in included
managing lawyers responsible for
criminal and civil litigation so there’s
an important distinction to make here
which is that it would be managing them
from a Personnel point of view but in
terms of supervising the
litigation that was to be done by Susan
Kon we’ll come back to that um in due
course uh the reporting lines um were
you the only head of legal at this point
or were there other yes I was the only
head of legal from when I was appointed
in
2011 did in due course were there
additional heads of legal appointed when
you were there not when I was
there right I want to come to the first
topic which is a few matters in 2010
concerning audit data and the first
point is track two data MH can I start
please with poll 20’s 416
959 this is a
letter addressed to you dated 12th of
February
2010 from Steven Dilli at bom Pierce uh
who became Bon Dickinson then wble Bon
Dickinson if we could just go down
slightly it talks about potential
deletion of track two data we see in the
first paragraph under
background uh it states that track two
data contains the 15 to 19 character
primary account numbers relating to
customer transactions expiry date of the
card information about what the card can
be used for and how it should be handled
at the point of payment and other
discretionary data so this is all
personal data relating to customers
debit and credit card trans transactions
is that right I believe
so it goes on to say that you believe
that track 2 data has to be destroyed to
comply with PCI
DSS I just pausing there does that stand
for payment card industry data security
standard I can’t recall do you recall
what it was in in Lay terms in Lay terms
it would be the rules that the PCI
operated that you had to abide by if you
took card payments in your business so
the PCI being the payment card industry
yes so there was presumably a at the
time or at least post office believed
there was a need to comply with PCI um
standards to delete this track two data
yes uh if we go down to
Fujitsu advice
it says um fij jitsu’s corporate legal
council Jean Philip prenovost has stated
in his email of 12th of February 2010 uh
to you that if track 2 Data is destroyed
fitsu would not be able to testify that
historical data is true accurate and
crucially
unchanged and you asked some matters um
to
clarify such as um the
reliability that document can come down
for the time being it’s just for
background so setting the scene with
track data effectively post office
wanted to delete data that wasn’t
essential for Branch’s transactions or
or the branch
accounts so there was a PCI compliance
audit done I believe yeah and as part of
that it
was found that the system held track 2
Data as I recall
mhm and the PCI expert said that that
was counter to the PCI
rules yes and so going to my question
which was deleting this data was it
wasn’t data on which the branches RI to
generate their Branch accounts uh I
can’t I wouldn’t have known and I can’t
recall what what kind of data it would
have
been well uh if you asking to delete
data that was relevant to the generation
of Branch accounts um that would seem
quite surprising wouldn’t it um at the
time I would have just known that there
was this data that we
held and the question in front of me was
are we can we delete it or not
and I was told that there was a risk of
deleting it in relation to the Horizon
cases let’s um go to the next document
it’s fuj
20
23908 and if we could go to the bottom
of page one please
we see there’s an email there from
Gareth Jenkins on the 17th of February
2010 carry on down to the bottom
please sorry that that’s fine thank you
um the Jeff Suzie my suggested answers
to most of the questions below prefix uh
g j in bold italics lower down in the
email train so if you can go down to
that it’s page four please
and yes that’s great thank you we see um
your email of the 15th of February to
Jean Philip
prenovost and you describe below as a
magic list of questions um think should
be compiled for is compiled sorry from a
few people today since our call this
morning would Fujitsu be able to get us
responses uh by close of play on Friday
please and if we could go
down further
please we see at
one
G sorry the question is um before track
two data is deleted would Fujitsu be
able to say precisely what impact the
deletion would have EG what did
additional data would also be deleted or
amended and if so how it would be
amended um and there’s a lengthy
explanation there from GTH
Jenkins towards the end saying the
result of this is that the audit of the
original message would be changed and it
would no longer be possible to assert it
has not been changed since originally
recorded also the revised audit file
would need to be resealed again
indicating that it has not been tampered
with since the time of the official
change
so at this time do you recall if this
message was passed on to you um I don’t
recall I remember that the sort of list
of
questions would have come from the PCI
consultant right so I didn’t have a
technical
knowledge of what was being asked or
what the discussions were around the
data were you broadly aware that um well
I say firstly you’re trying to delete
this track two data you’re aware of that
so there was a proposal of should yes
could we delete the track and it was
trying to find out is there an issue
with deleting that track two data could
could it affect other data yeah which
we’ll come to in the second what that
other data was um you were presumably
aware that the concern was was that if
other data in the audit files was
Disturbed it could affect post office
limited’s ability to bring or defend
claims cons um concerning sub
postmasters so at the highest level it
was explained to me that if you did
something with this data there might be
a risk that it would Prejudice the
ability to bring those
cases but I
didn’t understand the detail of
that if we can turn the page please
to par page
six and if we could go to the bottom
please we see
um par paragraph five what is is the
probability that the deletion would
affect the data contained in the
following and we it
includes data relating to cash receipts
from Branch data relating to
transactions and a particular data
relating to transaction says these may
be affected um if they are card
related I think you said you can’t
remember in detail if you received these
answers to the questions G given these
were important questions questions would
you have followed up on this and got
answers to them do you think that’s
likely it’s it’s possible yes do you
think is
likely I don’t know because I can’t say
for certain whether what then happened
would have been a call between the PCI
consultant and
Fujitsu this was all very
technical and I wouldn’t have understand
understood what they were talking about
necessarily in terms of all the
different types of data or the
implications so I would have spoken to
the PCI consultant about it did you
understand let’s let’s go back
understand this much firstly that it was
possible for Fujitsu to delete data that
was in the audit
file I’m not sure I would have
understood that point no well let you
you were here talking about um what the
effect of deleting track 2 data would be
if fij Jitsu couldn’t delete the data do
you think the simple answer would be we
don’t need to answer all these questions
we can’t delete the track two data yes I
wouldn’t necessarily have thought about
that but yes so if you turn your mind to
it at least you accept that um you must
have been aware that fitsu could delete
files within the audit record or that it
might be possible I don’t might be
possible and in this case what was being
suggested is a um let’s call it a
legitimate deletion post office is is
considering a proposal to delete data
from the audit files for data protection
purposes and to comply with this um PCI
guidance yes it was driven by complying
with the PCI
rules but it the post office was aware
that in doing that there was a risk to
the Integrity of the remainder of the
data in the audit
file so as I understood it for my
non-technical understanding it was
expressed that there was a possibility
it would be harder to bring cases on the
horizon uh issue um if this data was
touched at
all that understanding you have did you
share that with others uh on say exco at
the executive committee the PCI matter
um I was reporting to Susan kryon on it
as my line
manager um and it’s likely that the
consultant was working as part of the
cio’s
team would you do you personally know if
this was brought up at board level can’t
recall do I take it from that that you
didn’t discuss anyone with anyone on the
board about this PCI issue I can’t
recall that or or any paper on
it I want to go to the second topic on
audit data uh concerning duplicate
transactions please could we bring up
fuj
2121
097 could turn to page two
please and the email towards the bottom
um the yes that’s it thank
you so this is an email from Penny
Thomas dat to the 13th of June 2010 and
one which has been seen by the inquiry
before uh it’s sent to sua there mark
Dale and Jane Owen do those names uh
ring a bell to you uh
uh Mark Dale because he comes up in one
of the other documents in the
bundle um but not the others were any of
well I won’t ask the others you don’t
remember but Mark Dale was he in your
line management uh chain at
all he wasn’t anything to do with legal
I remember
that and it says we’ve identified that a
number of recent arq uh returns contain
d duplicate transaction
records uh so and it goes on
to explain how that’s happened um that
the hmx retrieval mechanism does not
remove duplicates
now you’re aware well let’s rephrase
that sorry were you aware at the time
about arq and audit data um being used
for civil prosecu sorry civil
proceedings and prosecutions no my
technical
knowledge wouldn’t have known anything
about that kind of
thing well this is June
2010 and we saw earlier when relating to
the PCI matter you were raising
questions about audit data and post
office ability to rely on it in criminal
and civil uh proceedings was it not you
are you saying you weren’t aware of so
the so the questions I was was Raising
in PCI would have been provided by the
PCI
consultant I wouldn’t have
understood all the technical things that
they were talking about not would you
say that’s particularly technical the
fact that post office were relying on
audit data for civil and criminal prose
uh proceedings so I wouldn’t know what
data they were relying on just that
there was some data that was important
to the criminal
cases let’s move on if we turn to page
one please of
this uh down yes thank you Penny
Thomas’s email of the 2nd of
July says um I’ve just completed a
conference call with Mark Dinsdale Alan
Simpson and Jane
Owen I said five bullet points down it
says I talked them through the arq
affected list and asked that they
confirm whether the west by Fleet and
Porters Avenue are pausing there do
those West by Fleet and Porters Avenue
ring any bells for you uh no West by
Fleet and the SE misra trial does that
so the name misra Rings a
b um were the only cases listed that it
progressed to court I asked them to
confirm whether transaction records for
West bu Fleet had actually been
presented at court or whether records
had only been passed to the defense
expert so there appears to be a
discussion here
on how these duplicate um well the
effect of these duplicate uh Records in
the audit data had had affected any
Court proceedings were you made aware of
this at the time I can’t recall
that I wasn’t involved in any of the
criminal litigation
so it’s unlikely that I’d have been
given any information about the
cases we’ll come to that shortly um so
let’s put ourselves in the legal team
that on the one hand earlier in the year
you were dealing with an issue relating
to audit data for the PCI yes
um later in the year there’s an issue
about audit data for um these duplicate
transactions and your evidence is
you weren’t aware or or you weren’t
aware of this later duplicate no I can’t
recall that at
alling there in within the legal team
what level of discussion was there about
uh matters between say the civil
litigation team and your uh team which
was related was it IP and
it uh
so if you’re talking about 2010 yes I am
in the post office legal team at that
point and there’s about four lawyers and
Susan Kon yes um the ipit team at Raw
mail is separate the criminal team is
separate uh and they’re based at two
other different offices so they’re at an
entirely separate office from Criminal
team is at a a physically separate
office from where criminal team setting
a physically separate office on its own
the Royal
Male uh ipit team and the Royal Male
civil litigation team sat in a Royal
Male office and then post office legal
was in a third office at the post office
headquarters so is it fair to say that
terms of day-to-day discussions the post
office legal team your evidence is
didn’t really have much communication
with the civil litigation or criminal
litigation team no
well let’s move to some of the um to
look at that and some of the uh response
to problems raised uh regarding
Horizon we don’t need to turn this up
but in page 12 paragraph 52 of your
witness statement I think your your
evidence is you don’t recall
specifically reading the May 2009
computer weekly article is that right
that’s right but you can remember
hearing reference to it yes and in the
additional bundle of documents that I
was given um I believe there’s a
reference to being told about it in
early
210 can you recall what uh
your what Your views were uh of the
allegations raised when you first heard
of
them I think when I first heard of them
it was in the context of PCI track 2
and the criminal
lawyer was explaining to me that
criminal cases existed and there had
been um some noise in an article in
computer weekly can I just ask when you
say the criminal lawyer who was that
that was I believe Juliet mcfar and it’s
in the additional bundle of
documents I think around January
210 so you say some noise
uh that was that the words
used that’s my words it would have been
uh in her email she talks about there
being criminal cases
and that there are some allegations
about the Horizon computer system did
you take them seriously at that time
yes when you said some noise did do you
think that the use of the phrase Some
Noise indicates that you’re taking it
seriously or that the complaints have
Merit sorry that was just the words like
came out with at this at this point in
time do you recall around this time so
2010
2011 whether there were any discussions
of bugs errors or defects um within the
legal team beyond the computer weekly
article so there were
the
allegations I think in terms of the
civil cases I think referring to the
shith litigation um I’m thinking I think
there was a Mandy Tolbert email in the
additional bundle of the seventh of
October we’ll come to some of those
shortly
um but I can’t recall whether there was
earlier mention of the civil
cases did Susan kryon ever discuss bugs
errors and defects with you I can’t
recall no
let’s look at some of the emails uh on
these response to Horizon challenges can
we start please with
fj20
56122 if we could go to page seven
please so an email from Mandy Tolbert on
on the 17th of February 2010 to David X
Smith um head of change and is at that
point do you recall uh what team Mandy
Tolbert was in at the time so she was in
the Raw male civil litigation
team so separate building separate team
yeah it says
um has post office limited received
requests like this this into the email
below and if so has it responded to them
does the business in principle have any
objection to meeting with a computer
expert and explaining to him how the
system works possibly even showing him
uh the
data if we go
to starting with the bottom of page
[Music]
five we see David X Smith’s response
there
and over the
page it says as long as the argument is
carried out on the level of what could
happen then we will always struggle to
win our greatest chance of winning the
argument Case by case is to fix the
debate on what actually happened it goes
on to refer to two
cases first being
clely says in the case refer to as
clevel an independent expert was
appointed unfortunately post office
limited and F jit suit did not manage
this spectacularly well and probably
feeled with the wrong people or at least
um very insufficiently brief people
sorry or at the very least
insufficiently brief
people I read the so-called experts
report and I have to say it was far from
the professional effort I would have
expected now pausing there were you
aware of the cless case at the time in
2010 no no
did you become aware of the clevy case
at any point whilst you were at post
office
limited I can’t recall but I don’t think
so if we could carry on to page two
please we have an email from Gareth
Jenkins on the 25th of
February um it says Susie Tom please the
email CH below
this is another example of postmasters
trying to get away with Horizon has
taken my money Dave Smith seems to have
put me forward as the expert to help on
this and then over to page one
please the response
says Gareth I have asked J Peter leers
with Hugh Flemington on this don’t reply
at the moment I’ll let you know into
your course how we are going to handle
this
do you recall what involvement you had
with this matter namely whether Gareth
Jenkins was going to be instructed to
give expert evidence no I was surprised
when I saw this and I
think that um the Fujitsu account
manager would have had my name in mind
because I’d been asking about track
two and if I’d have got contacted by
JP um I’m sure I would have once
realized it was about a Mandy Tolbert
matter I would have pointed him in the
direction of Mandy
Tolbert um at that point were you aware
of the well do you recall any
conversation with either Mandy Tolbert
or with um Fujitsu people at fij Jitsu
regarding post office limited requests
for expert evidence
no I I wasn’t involved in those cases
and there would be no reason for me to
be so your evidence is it simply a
misdirected email yes nothing further to
do with you
yes please could we go to
P20
49718 so this is October 2010 7th of
October
2010 uh we have an email from Mandy
Tolbert it’s to Susan an kryon uh we we
know um she was sort of sitting at the
top of the the tree essentially for post
off his limited matters there’s
you and Jessica madron do you remember
who Jessica madron was she was post
office legal lawyer um that worked on
sub postmaster contracts uh so in terms
at this point was she level with you in
seniority uh she was I think level with
me in seniority at this
point she had been there longer much
longer she been there longer but but in
terms of your actual postings you
were I can’t I can’t recall the precise
classifications I’m
afraid says Dear all we need as an
organization to determine how best to
deal with all the cases where
allegations are being made about Horizon
and where there is money owed by um the
former po postmasters to the
business why were you being brought into
this email at this
stage I don’t know I can’t
recall
well let’s let’s pause that Mandy
Tolbert um is in the civil litigation
team at Roy M yes she must have an
understanding of where responsibilities
lie for
issues such as civil litigation within
the within the
group yes she’s emailed a relatively
small distribution list of three
people correct
correct can you explain why Susan kryon
was included in that
list I would assume because she’s head
of the pole legal operation at that
point
was it actually the case that you were
included because but with working on the
post office legal team you were being
involved in uh determining the strategy
for responding to Horizon challenges so
I can’t recall being involved in that
strategy um when I saw this I thought it
was possible that I’d been included
because we were starting to plan for
separation why would that be a reason so
at separation we would have to take
civil litigation cases
on so that’s including you not not as
a in terms of advising on the separation
itself but almost in preparation for
your work to come yes in terms of
planning for separation yes so um but
not me taking on civil litigation or
being involved with civil litigation
so is your evidence at this stage that
again you were this was just an email
sent to you and you weren’t involved in
assisting with post office limited
strategy on responding to Horizon
litigation correct I can’t recall being
involved in that that’s so you can’t
recall that or are you are you firmly
saying you well let me rephrase that
sorry is your evidence you can’t recall
being involved in the response to
Horizon challenges or your evidence that
you you’re positively saying you weren’t
involved I can’t recall but it would be
very
unlikely we could just go down please to
include the paragraph starting number
one uh it says should we wait until the
conclusion of the ca of the case of MRA
which is currently going through the
criminal
courts uh you said you were you’re now
aware of the case of misra CA misra so I
was unware of the name because right at
the beginning of 210 Fujitsu emails me
probably because I’ve been dealing with
track 2 issue and asks me did I know who
was dealing with a case called misra so
I found out who that lawyer was and I
told the Fujitsu lawyer who’d asked me
so that was my involvement with
misra further on in this paragraph it
says assume ass uming that the case is
concluded within that time period some
of the issues set out below will fall
away but if it is adjourned or we lose
it the following points will become
relevant Miser is the prosecution case
involving izy hog one of the lawyers
used by postmasters for justice if the
prosecution is fully successful it will
make the Civil claims much easier to
deal with um if the prosecution is only
partially successful then it is likely
to make the Civil claims very difficult
to proceed with if we cannot rely on the
horizon data um can you recall any
discussion about whether The Miser case
was being used as a test case uh no I
can’t could we please look at poll 30
55590
and if you can go to the bottom
please this is an email from Mandy
Tolbert again on the 21st of
October uh your first it says to Hugh
Flemington say i’ be made aware of the
fact that many of us are on annual leave
next week because of half term in the
circumstances it seems likely that we’ll
have to reschedule again please accept
my apologies for this I’ll get my uh
secretary to reschedule the subject is
Horizon
um so at this point on
the 21st of October 2010 so a few weeks
after the email we just went to Mandy
Albert is appears to be still trying to
get you to attend a meeting on
Horizon and I can’t recall any such
meeting or going to any such meeting but
would you accept that you would again
you it the what appears to be happening
is you are
being Mandy told is trying to bring you
into an involve you in discussion on
Horizon matters yes trying to I can’t
recall where that
went well if we look up please to the um
John El Singh email this is obvious this
is a well-known email to the
inquiry uh you received this we can see
on the 21st of October do you recall
receiving this I do because of the
language used in the tone and what what
was it about the language using the tone
that struck you things like the word
destroy I thought that was a
motive do you think it was appropriate
for a legal professional to use this
language I thought it was um Over the
Top This is an email as you see it says
Marilyn Benjamin on behalf of John El
Singh um were you aware of John El Singh
as a lawyer at that point
no other than his name when I provided
it to Fujitsu back in
210 did you form a view about John El
Singh at this
time no I would have just thought it’s
an email which uses emotive
language so I’d have been surprised by
it but I wouldn’t have formed a view on
him
and we’ seen Miss tal was trying to
organize some sort of meeting about
Horizon following this email in the
weeks following can you recall um
whether Miss Talbert tried to rearrange
the meeting again or did that trail run
run cold I I can’t recall at
all I believe she may have left the
business shortly in
21 pleas pleas gring at poll 40
6484 there a note of conference at mland
Chambers with Richard Morgan as QC as he
was uh Susan kryon and you are listed in
attendance from post office Limited
do you have any recollection of this
conference uh I vaguely recall it
yes this was before the announcement of
the second site investigation yes I
think so were you aware at that point
that there was cons consideration being
given for an independent exp independent
auditor or expert such as second site to
uh produce a report on the system yes I
think I was who told you about that
Susan
Kon so it’s arranged to um consider we
see Horizon
litigation and it says the proposal to
instruct an independent expert to
prepare a report on the horizon system
is the highest risk response to the
issue now at this point there’s also
civil litigation potentially in the in
the freay from from Sho Smiths can you
recall this paragraph is referring to an
independent
expert such as second site or the the
second site exercise or is this an
independent expert um to address the CI
the specific civil proceedings brought
against post office limited I couldn’t
recall you say in your statement we
don’t need to turn it up on the screen
but it’s it’s page
15 paragraph
66 that the UN and this was in September
2011 I should say the understanding at
Royal maale group and post office at
that time was that the system was robust
so it was logical and important that
these claims be
defended do you that’s your evidence
right
um on what basis did you understand
understand the system to be robust at
this stage was that did you say
September to 11 that was September 2011
yes so there had
been I think at that
point
um possibly the rodis May report on the
system um posing there did you see the
rodis report I can’t recall seeing that
no well if you if you can’t recall
seeing it how do you know if you if that
was basis it would have been I think
talked about talk it was talked about so
yeah
um and the message was from I think the
civil litigation team that the system
was robust from the CIO team that the
system was
robust so your your basis for say
believing the system was robust came
from colleagues telling you as such uh
uh
yes I’m trying to recall if there was
any further
detail I think it was a it was a stance
at the business that it was
robust we’ve seen a a couple of
occasions uh here referring to an
independent expert and the documents I
took you to before um members of the
legal team considering whether it
independent expert evidence was uh
necessary or desirable correct uh do you
mean in terms of the conference with
Council in 2012 here well yes here and
the documents I took you to earlier
which showed um querying whether an
expert expert input was required the
emails from Mandy Tolbert uh yes sorry
yes um why was the legal team
considering whether expert evidence was
required uh on a regular
basis I don’t know I don’t know I wasn’t
involved with those civil litigation
team or the criminal team so how they
were approaching it was very much down
to
them at this point um when you are
involved in at the conference yes uh
what if any internal investigation did
the legal team do to understand what
documents post office limited held that
were relevant to the issue of whether
Horizon was robust or not uh I can’t
recall
but it Mr Singh and Susan kryon were
running the criminal litigation at that
time so I would have expected them to
consider that issue so yeah you that’s
their issue you say not for you so why
were you attending the conference then
if it wasn’t for you I think I’ve been
asked by Susan gron to turn up at the
conference uh possibly because
um she wanted a null of view we only had
a bon Dickson sond D who was doing civil
litigation um possibly also because it
was the
holiday season and therefore second site
might be appointed shortly and she
wanted coverage someone else who knew
what the issues were
and why didn’t you or or did it did you
turn your mind to thinking whether you
should look for documents uh held by
post office that were relevant to the
Integrity of the Horizon it
system I would have assumed that uh Mr
Singh was dealing with that and doing
that very
thing at that time were you aware of a
problem management team within post
office limited sorry could you repeat
the question were you aware of the
problem management team within post
office limited I can’t recall that
no did you have uh any knowledge of
something called the Kell database or
the known error log
no please turn to um
p21 07760
if you could go down the page
please this is an email from Jason G
Collins do you remember who that was uh
no it’s 10th of August
2012 says after speaking with Andy
Garner today do you remember who Andy
Garner was no I remember the name but
not who he
was I asked him to draw together the
email below to enable me to forward to
you for site advice so my understanding
is that all matters Horizon should pass
through you before any greed actions to
support wider activity is
made were you at this point the point of
contact essentially in the legal team
for Horizon
matters not that I can recall I was
surprised when I saw this email because
I cannot remember being bed as
such can you explain why the
why Mr Collins would have be
misunderstood on that issue he may have
been given um a mistier by Mr
Garner I had worked with Mr Garner
before I can’t remember in what context
but he would know me so he might have
thought that he was I was the person he
knew in the legal team and that Jason
should reach out to
me and
was there a single point of contact for
Horizon issues in this at this time
within the legal team I can’t recall
sorry could we look please at poll 00 oh
sorry sir Yeah by this time of course Mr
Flemington you uh separation had
occurred had it not yes that was on the
1st of April and so no doubt there were
processes being put in place for dealing
with these issues within post office
limit is suppos a Royal
Mail yes I believe so uh unfortunately
my father passed away unexpectedly on
the 1st of April so the first three or
four weeks I wasn’t around in the
business no I I I well I’m sorry to have
heard that but I wasn’t being critical I
was just seeking an explanation for why
you may have been included in things
because this was all new in reality
wasn’t it well I was about to say that
um Susan kryon and John El Singh would
have been sort of working up and setting
up the criminal prosecution side of
things in those few weeks um I know that
there had
been um some of the MPS reaching out by
this time and that was driving a
discussion about would a second side
sort of independent review be
created
um and as I said I was surprised when I
saw myself being badged in this email as
as as um all matters Horizon should go
through Hugh
um it may have been they were aware that
I was uh being involved in the second
site things such as the conference with
Council by Susan kryon but it it may be
no more than no more and no less than
you were the head of legal officially
and Susan Kon was your boss and she’s
copied into it yes yeah all right
F so rounding off those emails um Mr
fling that you’ve been taken to in your
was we see in your evidence actually
it’s page five paragraph
21 please
um thank
you you say my involvement with Horizon
was initially sporadic and
peripheral uh you refer to a specific
example there relating to resourcing for
John Longman uh you say so sporadic and
peripheral until the end of June
2013 when before going on the article
from 12th of July to around 3rd of
September I became involved in the
response to the emerging issues
regarding Horizon so having gone through
those documents just to summarize your
evidence is while she may have been
copied in on various things or taken to
conference um you remained you weren’t
involved actually in the strategy of
responding to heris of matters it was a
very ad hoc engagement and secondly at
least following following separation at
least your evidence is that
responsibility lay with Susan cry within
the legal team yes with Susan K and John
eling yes that can come down thank
you I want to look at a different topic
now and it’s the issue of um how
criminal matters were dealt within the
department uh you state candidly in your
witness statement that you had very
little uh civil litigation experience
and did you have any criminal litigation
experience presumably you were aware um
or you say you became aware sorry of
prosecutions being made by post office
in 2010 or 2011 it it’s 2010 it’s it’s
mentioned it’s that uh track 2 PCI so
it’s that point when you’re aware yeah
yeah but literally of their existence
not any
detail when we get
to 2012 and separation we’ll come to the
precise scope of it but you take over
line management of John El sing yes um I
want to just go over a couple of issues
on on your knowledge of criminal
law presumably you were aware of the
criminal standard of proof con
convincing the jury such that it’s sure
of guilt so in terms of the criminal
side of uh criminal cases to be taken by
Paul legal I had already agreed with
Susan kryon that because I had no
knowledge of criminal law um I
felt unable to supervise John El Singh
on criminal matters yes I I will come to
that in a moment but we can just go
through what your knowledge of criminal
a few matters of criminal law firstly
were you aware that post office limited
if it brought to prosecution had to
convince a jury such that it was sure of
guilt I was aware that we would have
certain duties but I was totally reliant
on Mr Singh
advising correctly on
those okay I ask it again um were you
aware of the criminal standard approv
namely I cannot I cannot recall being
specifically aware of
that you say you aware of certain duties
presumably you would have known that
there was a duty of disclosure on post
office when it prosecuted cases I recall
a duty of disclosure being dis uh talked
about by Mr Singh or mentioned by Mr
Singh in relation to the context of
criminal
cases did you understand that post
office was required to disclose
documents it possessed or had access to
that might reasonably be considered
capable of undermining the case for the
prosecution or of assisting the case for
the
accused I can’t recall what specific
knowledge I had on the criminal
cases were you aware that post office
owed a duty of dis those you’re
following
conviction again I I can’t recall
specific
awareness let’s
turn well actually you’ve said it in
evidence we don’t need to turn there but
your your evidence on supervision of
John El sing is that you would
effectively deal with normal management
issues as you put it I take that you say
it’s matters like annual leave and
salary reviews
yes but criminal prosecutions you say
those were supervised by Susan kryon
yes were you aware of what uh experience
in criminal law Susan kryon had I wasn’t
no so at this point Susan kryon was she
responsible for the entire legal
department yes she was effectively the
de facto GC so a much wider remit than
than you
yes and Mrs Miss kryton’s evidence was
that she had no criminal law
experience um in those circumstances why
why would she agree to supervise Mr
sing’s work um I don’t know why she
decided to but she did decide
to are you aware of how Miss kryon
supervised Mr sing’s work uh no
was in effect Mr Singh left to run the
prosecutions independently based on what
you’re saying without supervision I
couldn’t comment on that because I don’t
know what interaction there was between
Susan kryon and Mr Singh over the
criminal
prosecutions can we turn please to poll
20’s 1414
439 and if we could start with page
three
please sorry page two my apologies uh
the bottom of page
two so we see this is an email from John
Scott to John El Singh into which you’re
copied do you remember who John Scott
was he was the head of security I
believe and did you have what working
relationship did you have with him so he
would have been um I think at the time
reporting into Susan gon as I was sorry
I I missed that sorry I think at the
time he was reporting into Susan
Brighton alongside me myself so did you
have any working relationship with him
uh a little but not a
lot do you remember on what areas you
would work with Mr Scott uh only on
something like this if he
would appear and make a comment about uh
someone like Mr
Sing we see um it’s a response
John thanks can you send your report so
it’s referring to an advice uh on
caution uh with the whole file please as
I like to see the full officer’s report
um taped interview notes Etc next
paragraph says your report is also very
brief advising a caution and has not
sufficiently outlined the case
supporting evidence discussion around
defense options and the rationale of why
to prosecute or not or ACC caution in
this particular
instance and we’ already see the rest of
actually we can go over please to the
top of
page thank
you we see it says can’t write King
solicitors have set a benchmark in terms
of reporting and substance of advice and
for consistency purposes to ensure
decision- making is robust fair and
consistent this level needs to be
maintained you can go back to page two
please uh to the just slightly down
please thank you we see you remaining
copy um John El Singh um comes back with
a few comments and we see John Scott’s
reply immediately
above it says when we discussed this
yesterday before I saw the papers you
were critical of CK over playing their
right of of over playing their right up
I acknowledge they commercial and would
wish to increase their opportunity you
were defensive of your position failed
to listen and struggle to take on board
learning learning improvements I keep
with my statement below that CK are The
Benchmark and you fail to meet it
whether or not this is suitable for
caution prosecution or vice versa and
with um cartright
King I now have concerns in the overall
management of this part of the
process why did that criticism of Mr
sing’s work come to
you I can’t say why it came to me other
than John Scott knew me and knew to
speak to me
but he would know to speak to Susan
kryon wouldn’t he if if it was known
that she was supervising Mr
Sing I think he may not wanted to have
raised this in the first instant with
Susan
kryon um I remember I went round and
spoke to Susan Kon about this because I
thought it was uh a criticism that would
um be leveled at her not
me um and I remember
I think John Scott it was discussed with
John Scott and it was discussed with Mr
Singh in terms of what might might have
gone wrong what could be done
differently Etc but this was all um with
Susan Kon so your you your evidence is
you have a specific recollection of
discussing this with Susan kryon yes
and to what extent were you involved in
uh providing advice or uh anything else
on the substance of Mr sing’s work at
this point um this was probably one of
the only points when I got drawn into
that and what did you advise or tell Mr
Singh to do in respect of this I I can’t
remember the specifics of where it came
out but I know the matter was trashed
out were you concerned with Mr sing’s
competenc at this point so at this point
um the context for me I suppose was that
Mr Singh had been in a as a criminal
lawyer in rawal male group for 17 years
so he was quite a senior practitioner
he’d been recommended by Rob
Wilson um I remember early on he’
mentioned after separation that he was
organizing training for the
investigators um and
I remember that involved cartright King
and I remember cartright king after that
uh saying to me he was
competent um
so there were
various um pointers which said to me
actually you know he’s he knows what
he’s doing he’s been there a long time
he wouldn’t have survived at Raw male
for 17 years without knowing what he was
doing um
um if I had any concerns like the one
raised by John Scott I would have
flagged it to Susan kryon but that’s the
only one I can
remember
um did you have discussed with Susan
kryon whether U Mr Singh was being
appropriately
supervised I can’t recall whether that
whether that discussion happened this is
quite a serious criticism from the head
of security would you accept that it is
but I remember at the time feeling that
it was slightly personal that there was
something some personal animosity
between John Scott and John
elsing so that’s probably a good time to
take the first morning break if we can
uh come back at
11:00 certainly thank you
sir
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good morning sir can you see and hear me
again I can thank you thank you Mr
Flemington I want to ask you a few
questions about post office limited’s
legal appro sorry the legal team in post
office limiteds approach to the um
devolved
Nations uh was anyone in the post office
legal team qualified in Scots law uh not
that I recall or the law of Northern
Ireland not that I
recall uh was
anyone or at any point um when you
were at post office limited did you have
a discussion with anyone in the legal
team about how post office limited
handled prosecutions in Northern Ireland
or
Scotland I can’t recall specifically
no although at some point it would have
been alluded to and talked about about
in the context of this whole Horizon
issue in the sorry in the context of the
whole Horizon issue and dealing with the
emerging Horizon issue was that are you
talking after the second s’s report when
you say that uh possibly that’s what I’m
thinking
yes do you know how the post office
legal um Team satisfied itself that it
was acting in compliance with the law of
Scotland in so far as it brought
prosecutions uh not per se no that would
have been something that I would have
assumed that Susan Kon and Mr Singh were
dealing with and do I take it from that
the same applies for Northern iseland
yes I’m going to jump forward in the
chronology just while we’re here are you
aware of any steps post office took to
raise issues of horizon Integrity um
with the procurator fiscal uh not
specifically that I can recall no or the
public Pro ution service
no you say in your witness statement
that you weren’t involved in the
instruction of cartright king um who and
kri King being a firm external firm that
post office limited relied on for legal
advice in relation to criminal matters
yes uh do you know who did instruct
cartri
King I I understood it was was Mr Singh
or Susan
kryon did you take any steps
to understand or satisfy yourself as to
what cartright King’s retainer was or
its
instructions I think I would have asked
about its retainer on the return to the
office after
my uh the burial of my father um it
would have been at that point I probably
would have looked to see what retainer l
Etc was in place do you recall what in
Broad terms what they were retained to
do I can’t recall is this another matter
that you say would fall to Susan kryon
and John El Singh
yes wble Bond Dickinson was another firm
instructed by post office limited and
when I say wble Bond Dickson are
including um uh Bon Dickinson and Bon
Pierce Etc
uh Chris oard gave uh evidence that
wumble Bond Dickinson at times like an
extension of the in-house legal team for
post office limited would you agree with
that I could see
that he might think that if he’s dealing
with a particular partner on a regular
basis for example or a particular fer
from wble Bond Dickinson on a regular
basis in the context of something like
Horizon purely
because there were moments when they
probably were providing a lot of support
to
us in terms of horizon what was your
working relationship with Bon Dickinson
wble Bon
Dickinson um in terms of horizon
issues
uh I would
have dealt with
uh I would have dealt with them when
they were engaged on Horizon issues to
the extent I was also engaged on that
particular Horizon
issue
um so for example in the
2012 uh QC
con uh I believe that might have been
arranged with their
help um and then in the emerging issue
the following year in
July um they were obviously
involved uh to a degree in that and so
was I so I would have been uh involved
uh speaking to them about things
then did you think the level of Reliance
on Bon Dickinson
was appropriate or or or usual for a
business such as post office
Limited I didn’t at the time think it
was unusual or feel it was
unusual um we were a growing team we
were originally four we’d grown to about
12
um we weren’t allowed to grow more at
that point because there were
restrictions on the HR
template when say HR template is it is
that head count yeah um so you had to uh
still maintain a degree of
externalization to help support on
day-to-day
matters want to look at some topics now
to do with the second site investigation
uh starting with the effect on
prosecutions did you receive any
instructions about whether or not
continue
prosecutions uh sorry I’ll rephrase that
do you recall receiving any instructions
about whether or or not post office
limited should continue prosecutions uh
of some postmasters based on Horizon
data uh once the review by second site
had been
announced uh I can’t recall no not
specifically Susan kryon um gave
evidence in her witness statement which
we don’t need to turn up but for the
record it’s paragraph 20 255 of WN
0022 20 1 0 0 her evidence was at some
point around the time of the separation
I made it clear including to the
security team that no further
prosecutions were to be commenced which
were reliant on Horizon evidence do you
recall that instruction being given no I
don’t could we look please at poll 20
18855
so if we could turn to the bottom of
page two
please we have an email from Rachel
Panter right at the
bottom about the case of Wy
as anticipated please see attached
letter from defense lists in Wy asking
for our position on the ongoing Horizon
investigation that’s relating to Second
site isn’t it yes
yeah and if we can go up please slightly
to the email from John El Singh thank
you it says Hugh Susan uh please see
attached C King’s email I rais this with
you briefly sorry I rais this with you
and briefly discuss this with Hugh last
week with our possible
approach I think you say in your witness
statement that you have no recollection
of that discussion is is that correct
that’s
correct well just pausing
there you weren’t this
is your in your career you hadn’t really
dealt with criminal law matters before
not at all no so at this point you’re
being brought into
discussions about post office’s position
on whether to continue prosecution
pending an investigation by second s
side
correct um and there would be severe
ramifications for the business if second
side uncovered any systemic problems yes
correct a high it’s a high stake
situation yeah was an unusual moment in
your career would you agree um it was
interesting is it really your evidence
that you can’t remember the discussion
with John El Singh around this time uh
no because um
my I can’t recall
but because I wasn’t involved in the
prosecutions um my suspicion would be
that I would have said this needs to be
discussed with
Susan well if we look you you are
involved still in this Con now in the
decision making
yes if we go to page one please these to
the
bottom sorry there that that’s fine
thank you
[Music]
um the some other emails and John El
Singh comes back on the 10th of July
this time just to
youh say h uh what we say
to and then three and four is do we
agree to defendants request for stay or
adjournment pending completion of the
audit report or let the court de side
what are we going to do with existing
pending and future investigations and
losses um so effectively he’s asking for
guidance on MH post office’s position
yes on prosecutions during yeah to the
second site investigation yeah and he’s
if we see at the bottom there he’s
specifically taken out Susan kryon out
of copy hasn’t he uh
yes why would he do that if you weren’t
supervising on criminal law
matters so I don’t know because
occasionally sporadically he would copy
me in on criminal law matters I would
remind him that he should be dealing
with Susan on
them
um I took a pragmatic approach which is
if there was anything I could progress
to move matters along then I would but
uh most of the time when he did this it
would end up being going to get uh Susan
in a discussion with johnell over the
issue if we can go up the um the chain
please we see you say okay are you able
to advise Susan and I or do you want
this to go to
council he says hu if we can have some
answers steer and stance I can then
Advance advise I can then I think it
should be advised carright k
and have input from them and then if we
go further up
please you say this is now to Susan
kryon he doesn’t seem to be able to do
recommendations does he were you have
any concerns about Mr sing’s competence
at this point I think this was about my
first dealing with Mr
Singh um after separation after he’d
arrived um so this might have been one
of my um earliest experiences of him I’m
looking at this chain I’ve been drawn
into it I’ve told him before actually
you’re working with Susan gon on these
matters um I’m trying to make
constructive points and move it along um
I’m probably getting frustrated at this
point I’ve got other matters I’m dealing
with um so it would be more like
frustration over this particular moment
than anything larger around Mr s so you
did you remain satisfied that John El
Singh was an appropriate person to be
dealing with um this issue in criminal
prosecutions so I would have discussed
any concerns I had with Susan
kryon about Mr Singh I can’t recall on
the back of this whether or not I
discussed any
concerns um I’m going to go to Harry
Bo’s advice of the 11th of July 2012 now
um so just after this email chain before
I do I understand it that you accept
that you received and read this advice
um by the 16th of July 2012 is that
right uh yes thank you well we can go
straight to the advice then please it’s
um Paul 30
26567 so we see it’s an advice in the
case of crown
Wy and if we can it sets out the facts
of the
allegations you can go down please
to uh paragraph two thank you um it’s
referring in paragraph two we don’t need
to read it out but it’s referring to the
um second site investigation and the
ramifications Mr Boer uh thought that
that that caused paragraph three
please says the first consequence is
that we have now given Ammunition To
those attempting to discredit the
Horizon system the argument will be that
there is no smoke without fire and we
would not have needed to audit or bomb
prooof system to sorry to audit a bomb
prooof system we can expect this to go
viral in that any competent defense
solicitor advising in a case such as
this will raise the Integrity of the
Horizon system and put us to proof as to
its integrity
as all of our cases depend on the system
to compute the alleged losses this is
likely to affect a considerable
percentage of our
cases so what would your thoughts when
you read that
paragraph I
suppose it’s essentially flagging the
idea that um
second site being
appointed uh might end up with a lot of
claims against the post office if they
find particular issues with
Horizon
um it’s similar to I think it’s
mentioned as floodgates in the Morgan
conference
advice um and I remember thinking at the
time
that once you had instructed to Second
site to do an independent review there
were two logical outcomes either it
would find
nothing or it would find something and
you would have to deal with the
consequences so for me that was always a
logical
possibility when you thought about that
did you turn your mind to what should
happen in between so what should happen
to criminal cases whilst the
investigation was
ongoing uh no because I saw all that as
uh the uh for Susan kryon and Mr Singh
to make a decision
on we’ll come back to that point shortly
if we could go down please to paragraph
six um Roman numeral
one this this is the advice Mr B gives
on on what to do on next steps it says
we should identify the contested cases
civil and criminal in which the Horizon
system has been
challenged um we should identify the
areas of Challenge and how we neutralize
them so the advising effectively a a
looking back exercise of Past Times when
the Horizon it system had been
challenged correct uh
yes when you read this did you consider
whether the post office should have
reviewed whether there was any material
that may assist the defense in those
past
cases I would have uh
expected Mr Singh and Susan kryon to
already have been looking at that as
part of the ongoing prosecution of the
cases so effectively you thought it
wasn’t your
responsibility uh no because I wasn’t
dealing with those cases and I didn’t
have supervision or Carriage of
them we could carry on over the pl page
please it says an expert should be
identified and instructed to prepare a
generic statement which confirms the
Integrity of the system and why the
attacks have so why the attacks so far
have been unfounded this expert should
be deployed in all cases where the
Horizon system is challenged and he
should be prepared to be called to reply
to defense experts on a Case by case
basis did you agree with that
advice I wouldn’t have had the
experience or the expertise to disagree
with
it so you didn’t think for example that
actually it was a post office duty to
investigate cases on a Case by casee
basis to see if there was a problem in
the Horizon it system in that particular
case so I would have been expecting and
relying on Mr Singh and his
expertise and Miss kon’s supervision of
the criminal matters to ensure that all
that was done
properly well let’s look at some of the
email surrounding this time please it’s
poll2 141 00
please we can turn to page
two thank you and to the bottom
please John Neil sings email of the 16th
of July 2012 to Andy cash um
king and you are copied in with Susan
kryon mhm it refers to the defense
approach to staying of prosecutions
until the review is completed it says
post office view is that such an
approach be resisted review to be
conducted is limited in scope in a few
in isolated cases goes on to say that
there is no foren legal or forensic
grounds to argue defendants will not get
a fair trial or abusive process there’s
no reason to justify the case being
stayed and if we can go over the page
please page
one down
slightly it’s an email from you 16th of
July
2012 John El Singh Susan kryon and
Allwood lions in
copy says one for our 3:30 meeting I
think presumably that’s referring to the
decision on on whether to oppose or
agree to applications for stays paid by
defendants yes this may have been the
case that we already had a meeting
scheduled on something else and so I am
saying okay this issue has come up I’ve
tried to distill down on this email what
the things are for
discussion um and then can a discussion
can be had on it but you’re involved in
so you’re involved in the decision-
making at this point I wouldn’t have
been involved in the decision making I
would say that I was facilitating the
discussion at this point I’ve been
reached out to by John El Singh um not
of my doing I’m trying to progress the
matter in a sensible way um but I’m
making sure that ultimately there’s a
discussion between John El sing and
Susan
Kon why did it require you to facilitate
a discussion between the general counsel
and someone you say is um being
supervised by her it was it was a point
of frustration from time to time that I
would have with Mr Singh what can you
expand on that please uh because he
would uh email me or include me in an
email and I would say jell you’re meant
to be doing the criminal cases with
Susan Kon
please did you ever approach Susan cryon
and say
please can you exercise more oversight
of John El Singh because he keeps
emailing me I recall flagging the issue
to her and saying I’m I keep getting
copied into
things do you recall what was discussed
at the meeting at half past 3 um on the
16th of July 2012 uh I can’t
know please can we turn to poll 3
[Music]
58155 if you can go to page two
please
and to the to the bottom
please thank you that’s perfect uh so
this is an email from you uh to Susan
kryon on the 24th of
July uh forwarding an
email about a week earlier from John El
Singh and you say this is the story text
which uh Jay presumably John L put
together following our meeting last week
any comments please before we release it
do you remember the background to
this I think this was in Rel relation to
the appointment of second
site and
explaining why post office had appointed
second
site and so I think Mr Singh will have
involved me originally because he will
have known that I would have been
uh been drawn into the second site issue
by Susan gon so for example you see me
going to that Comm
Council um so
I’m reached out to he’s obviously needs
to put a draft statement together and
this is the progression of that
statement
um this this is quite a significant time
for post office limited legal team isn’t
it in the sense of in the sense that
it’s dealing with a how to progress
prosecutions in the face of the Second
Sight
investigation
um yes although there were lots of
important moments along the way but is
it the case that you were actually being
brought into this because it was an
important matter for the Post Office
legal team to deal with
um I’m not sure that was the case it
might have been more ad hoc than that
sorry can you repeat the last it might
have been more ad hoc than that in that
I’d been involved by jell at the start
of the the email conversation and it
snowballed from there
um if we go to page two
please we see there the um signature is
from ronen kellerer uh head of PR and
media at post office limited why was do
you know why a PR person was brought in
for this uh no and I I can’t recall
their
name the
the last
sentence actually know In fairness to
you I should show you the the start of
the email
please thank
you
um it as this email will most probably
find its way into the media we do need
to get the message across from it should
be the start that we continue to have
full confidence in the robustness of the
Horizon system and then reinforce it so
I suggest the following tweaking to the
proposed wording from J
nail and if we go down
please at the bottom we see the
sentence when the system has so when the
system has been challenged in Criminal
Courts it has been successfully defended
which was taken from um Mr sing’s uh
draft of the copy as well
did you take any steps to satisfy
yourself that that was
accurate I can’t recall do you think you
should have
done I would have been relying on Mr
Singh and Miss kryon
to run the prosecutions in appropriate
manner so if if that was required then I
would have expected them to be doing
that this is slightly different isn’t it
from running the prosecutions this is a
a statement on um the position in resp
ECT of second side and it’s one in which
you’ve become involved did you not think
it was incumbent on you to check that
this was
accurate so I would have been relying I
suppose on people who have pulled this
together were you aware of the
acquittals following trial um in
criminal proceedings of Mor mckelvie and
Suzanne Palmer at this stage no
um could we please turn to
p201
12723 this is a letter from cartright
King we see it’s in the case of post
office limited and
Wy uh if we go down down please to just
under
halfway we see it says the Crown’s
position on the Integrity of the Horizon
system is set out in Steve Bradshaw’s
statement date of 20th November
2012 you turn to page five
please see that’s the statement from
Steven Bradshaw
and it’s effectively the statement that
was drafted by the pr person we saw and
go over the
page again we see when the system has
been challenged in Criminal Courts it
has been successfully
defended were you aware of a decision in
the post office legal team for that uh
copy to be used as witness statements in
criminal proceedings no I wasn’t
do you think that’s a failure that
you’re sort of involved in an ad hoc
basis but not aware of um The
Wider issues and how how statements such
as that were being used in criminal
proceedings so I think
uh because I was involved in an ad hoc
way uh and involved not at my choosing
but someone reaching out to me um then
it was clearly um impossible to
control what was
happening um I had always understood
that those prosecutions were being run
appropriately in good faith by Susan Kon
and Mr
sink did you take any steps to satisfy
yourself that that was
accurate uh I can’t
recall can we please turn to Paul 20’s 1
33644 we see this is a witness statement
of Gareth Jenkins dated the 27th of
November
2012 if we look over the page
please Midway down
says I’ve been asked to provide a
statement in the case of Kim Wy so Wy
case we’ve seen appear a few times
now over at page three
please Mr Jenkins says I also note a
comment made about it being possible to
remotely access the system it is true
that such access is possible however in
an analysis of data audited by the
system it is possible to identify any
data that has not been input directly by
staff in the branch any such change to
data is very rare and would be
authorized by post office
limited I should ask first did you see
this statement at the time sorry did you
see this statement at the time no there
I wouldn’t have seen any witness
statements um on criminal prosecution
cases did um anyone in the post office
legal team make you aware of this aspect
of the statement about remote access
no did anyone at cartright King raise
this with you
no I want to go to a different matter
now again relating second s and that’s
about bugs errors and defects can we
turn to poll 30
60572 please
we turn to page two
please so we see your email of the 28th
of
June and
um we can see referring to
various well say it says com statement
to include found the 64 and 14 bugs
which we We Now call the receipts and
payments mismatch bug and the suspense
account bug so at this point I
understand you accept you were involved
with um the response to challenges to
Horizon more directly yes I think this
might have been the first day because
I’m not in the office it’s a Friday and
I wouldn’t work on a Friday um but I
think Susan kryon was away on
holiday and I think I got reached out to
and probably for this email there would
have been a conference call with the
people on the email cuz this looks
like me rushing to get an email out just
before people go home for the weekend on
Friday because things needed to
happen we don’t need to turn it up on
the screen um but at paragraph 115 of
your statement page
27 you refer specifically to this email
and you say that I’m must have spoken to
John El Singh before drafting this email
as I would have been unfamiliar with the
criminal case and procedural issues to
um such as a Germans
MH what did well first can you recall
what Mr Singh told you about bugs errors
or defects if anything sorry can you
repeat did Mr Singh tell you anything
about bugs in the Horizon it system no
that can come down thank you I want to
explore your knowledge of bugs be before
um June
2013 were you aware of any bugs errors
or defects in the Horizon it system not
that I can recall
no would you accept that in early July
2013 uh you became aware of something
called the calendar Square book
yes and you did you know at that point
so by July
2013 um when post office first had
knowledge of the calendar Square book is
this the foler book The fuler yes I’m so
sorry calendar Square Folker I think in
the bundle there is an email I think to
Susan kryon and I talking about that bug
at around that time yes well we can turn
to that um or at least what I think
think you’re referring to um it’s poll
30’s
29628 it’s be with me sorry I have to
catch
up excuse me at the top we see um
from uh Leslie seel
and we see your your name is at the very
far right and left so it’s sent to you
and if we um go down please to the email
from Gareth
Jenkins uh subject calendar
Square I found some details on the
problem it was first raised in September
205 and then the fix uh was applied as
part of S90 which was rolled out
February March
2006 next paragraph down it says we
reported the problem to post office
Limited but I don’t know how much of an
investigation was carried out into the
scope and the number of affected
branches I was not involved in the issue
at the time and only really became aware
of it as part of the sea Miser Sor part
of The Miser case in
2010 at that point in time so July
2013 when did you think that post office
were first made aware of the calendar
Square book
having seen this I would have assumed it
was September uh uh oh no he doesn’t say
that does
he I don’t know did you take any steps
to find out so I would have expected
this to have come out of uh the inquiry
stream that we were running at this time
so when that Friday the 28th had
occurred and the two other bugs were
mentioned
uh the first priority as I saw it was
let’s understand what the impact is for
the criminal cases and the civil cases
and first and foremost uh what do we do
need to do about those and as part of
that I would have assumed that what
would have come out would have been fact
finding around the bugs and this one as
well as to who knew what
went
and can you recall what the answer to
the who who knew what when was I can’t
recall now I’m sorry did you see any
documents that were relevant to when um
post office limited discovered the
calendar Square book uh I I can’t
recall do you remember how post office
limited search for documents on for on
that issue uh
no moving to the receipts and payments
mismatch book
do you accept that you were aware in
late June
2013
um firstly about the receipts and
payments mismatch bug this is one of the
ones I would call the 14 14 bug yeah yes
can we turn please to poll z0 sorry poll
two 17948
and at the bottom of that page
please we see an email from rodri
Williams 1 of July to you and others yes
yes it refers to uh a draft briefing
note if you carry on further down please
to
page
four uh and to the bottom
please see email from Simon Baker
summary of receipts payments
problems and
the timeline set out March 2010 first
incident
occurred March 2011 letters sent to
branches and corrections
made so at this time July
2013 you were aware weren’t you that
post office limited had been aware of
this receipts and payments mismatch
Problem by at least March
2011 yes I think at this point this
information’s coming
yes so that was um the receips and
payments mismatch which is 62 I think
well we’ll look at the other 14 which I
call the suspense account
book
um in early July
2013 do you except you were aware that
post office had knowledge of the
suspensor bug in June
2012 that’s the one we just saw on the
let’s go to the documents it may be EAS
that way um call 30
29648 please
thank you so we see um this is your
you’re the cendi at the top sender sorry
cend um uh dat of 4th of July 2013 to
Susan kryon say we need to keep each
other coped in on
everything we say timeline for local
susp spense problem if we can go down
please it says email from Ric Williams
all here’s my summary of my call with
Andy
win it says issue first surface um post
office Finance Center on 6 of February
2012 at the close of Branch trading
period see how that was um resolved
without noting the bug if we go over
with the page
please sorry just slight I that’s my
error just slightly up there we go thank
you uh on 6 February
2013 the Willam bran supp postm
contacted the mbsc to report the same
discrepancy in his Branch trading as the
previous year NBC passed this on to V
Jitsu between 6th and 8th February
2013 fij Jitsu then notified FSC that’s
post office Financial service center
isn’t it I don’t know sorry if we look
at the top um first bullet oh okay sorry
thank you um of the problem on 28th
February
2013 so by this point you were aware um
on this issue the local sorry the
suspense account issue post office had
knowledge of it from the 28th of
February 2013
yes was this common knowledge at this
time in the Le legal
team I think it would have been known uh
between the lawyers uh Susan kryon
myself Mr Singh and rodri
Williams this week was a whirlwind so
information was coming in every day
there were briefing notes to be
commented on every day this
was a very busy week at that point did
you think that there would have been
documents relevant to those B
to which post office limited have had
access I can’t recall that specific
thought our priority was to get
the criminal and civil advice to see how
we took it forward if there were any
issues around the convictions Etc that
were unsafe well at this at this point
you’re finding out that post office had
knowledge over a number of years of
various three books correct uh yes I
think so and you’re
considering um what advice is necessary
on civil and criminal yes uh including
criminal
convictions
yes we’re seeking that advice from the
the external specialist surely it must
have occurred to you that one of those
issues would be well have we disclosed
docu that are relevant to these books to
people whove been convicted on the basis
of horizon
data uh I assume that was part of what
the externals were considering and
looking at yes but why weren’t you
considering
it so in I thought it was being dealt
with by the externals in conjunction
with Mr Singh and Mr Williams but you’re
you’re being brought in here yes and do
you accept on its face there’s a
potential serious disclosure failing
here if information about these bugs
hadn’t been communicated to suppost
Masters who’ve been convicted on the
basis of R and and I understood that was
the advice we were
seeking and is your evidence that you at
that point it didn’t occur to you to
look for documents yourself that may be
relevant to those books every I can’t I
can’t recall that specific issue do you
think you would have thought that
uh is it likely that you would have
thought that it’s difficult to say it’s
why is it difficult to
say because of uh my lack of knowledge
of criminal
law but standing back do you need
knowledge of criminal law um to know
that if someone’s been convicted on the
basis of horizon data and post office is
aware um or had been aware of bugs in
the Horizon system Sy um that it was
necessary to disclose documents relevant
to
that I would have uh
expected any direction around that to
come from the external advice and say
okay you need to do X Y and
Z well in these discussions at the time
what was anyone
saying we need to look for these
documents I can’t recall that now
can we look please at poll 20 1451
142 so this is your email to Martin
Smith and Simon Clark they’re both
representatives of cartright King yes
and we see El sing and uh Susan cry and
rodri Williams in
copy you’re asking for whether advice
had been changed because of a new
timeline on the uh local suspense bug
sorry the suspense account
bug you put two
questions the first is do you still have
to look back to cases since it first
happened in Jan
2012 we will want you to
anyway can you just ask you to to
explain what what advice you were
seeking in that
question I can’t recall off
hand I must have thought of a there was
a logical question to be asked and I
asked
it and you can’t assist us
further it looks like I’m asking
about um do we have to go back and
review past
cases at that point why was January 2012
12 being picked
um I don’t know I can’t
recall can you recall whether
anyone dis uh raised the the process
going the sorry the review going back to
2005 when the calendar Square book was
identified I can’t recall
sorry you say number two does this mean
the only GJ presumably that’s Jenkins I
would expect so yeah the only Gareth
Jenkins statements that might give
concern are W since February
2013 do take it from that that at this
point you were aware of the advice um uh
that was subsequently given in writing
by Simon Clark that Gareth Jenkins uh in
his view was in breach of his duties as
an expert I can’t recall I may have gone
to that Con on the third I can’t recall
well what else would that
mean I don’t know if someone was talking
about the statements in a high level way
I just can’t recall I’m
afraid there’s clearly an issue that
I’ve picked up on but I can’t remember
any of the detail about we know as a
matter of fact what happened in on the
15th of July um Simon Clark gave advice
um on Gareth Jenkins and in stating he
was in breach of his duty as an expert
that was a written
advice are you aware of anything else
that um this email could refer to
relating to Gareth Jenkins statements
other than concerns raised by Martin
Smith and Simon Clark as to his duties
as an
expert I’m afraid I couldn’t I just
couldn’t remember and I could I couldn’t
think of anything but I can’t I can’t
recall with any certainty I’m going to
put it one final time do you accept at
this stage Fourth of July 2013 you were
you were aware of the concerns about
Gareth Jenkins as an expert and whether
he was in breach of his expert duties I
may have been but I I just cannot
recall you say Susan and I have to brief
the CEO at 9:45 MH uh can you remember
what that briefing was about uh no
I expect to know the answer to this but
do you remember what you um told the CEO
and whether you told her anything in
relation to Gareth Jenkins I’m afraid I
don’t I can come down
please please could we go to poll 20’s
29 9
6821 could go
um if we see there sorry you’re
um you’re sent this email by alwin lions
on the 20 28th of June if we go down
slightly um we see FYI summary advice on
the impact of book 14 and bonus Road and
then back to the
top it says um alwin Lion says can we
call bugs incidents from now please from
now on please do you remember receiving
this email I don’t remember receiving it
but I do remember some people wanting to
use different words for bugs what do you
remember about that I remember thinking
at the time it was uh slightly idiotic
in that people would know what was being
talked about so why would you use a
different word did you ask for the
reasons behind this um message I can’t
recall if I did or no was it because
people in post office wanted to play
Down the impact uh of the word
bug I don’t know it may have been but I
don’t know did you follow this advice
um I can’t recall personally following
it can we please go to poll 20 47
582 so this is an attendance note with
Simon Richardson um Simon Richardson is
is here Bon Dickinson yes I think he was
one of the senior Partners at Bon
Dickinson so on the 10th of July you and
Susan kryon are noted to be in
attendance if we could just go down so
we can see more of the body of the
attendance do
please can you remember what the purpose
of this conference was uh no
at three I think it was in the context
of I was about to go away for a a period
of
time
um
and I
think there was there was a challenge
because rodri Williams was due to be
away the following week and Mr Singh I
believe and so what what was why was
that relevant to the conference so I
think the Genesis of the conference
might be Susan kryon seeking uh a degree
of high level support from Bon Dickson
at that
point at three we see uh it says the
board want to sack SS does that refer to
Second site I believe so yes and of
course are now not coping well with the
fact that they are
independent Susan kryon is going to
ranged to meet second site and she asked
if she could use our offices next
Tuesday
what was the discussion on well no start
start first does the board refer to the
board of post office limited I believe
so yes and what can you recall about
this discussion um I can’t recall
anything specifically about this
discussion that’s a it’s quite
significant isn’t it the board saying
they want to sack um second
side I remember that particular thought
being mentioned probably by Susan Kus at
some point in these two
weeks
um because I was surprised
because I’d always thought second site
was the way to
go um so I wasn’t persuaded by those
Floodgate arguments Etc back in the
previous summer when they were
appointed and I thought once you had
appointed them and signed up to an uh
independent review then there was always
the chance that you would get an answer
that wasn’t an answer you were
expecting so to have a reaction
suggested by you know somebody’s view
was sack second site that seemed to be
slightly odd because that would be a
very public event well if you thought it
was slightly odd did you ask um you said
you thought it may have been Susan kryon
did you ask her why they wanted to sack
them I may have done but I can’t can’t
remember when sacking them was first
mentioned well this was a um attendance
not of the 10th of July
2013 so it’s mentioned by that point yes
yeah do you
recall uh why or any reasons were there
any reasons given as to why it was said
the board wanted to sack second side no
I can’t I can’t recall any specific
conversation or explanation of reasons
just before we take the break you
referred to uh you were about to go away
for a period of time and in your witness
statement you say that was for a
sabatical yes yeah when was it arranged
what that you would go on the sabatical
um probably the previous year because uh
it was driven my wife had a sabatical at
her place of work so it’s UNC connected
to totally
unconnected so that’s probably a good
time to take the second morning Break um
um if we could come back at 10
12 I yeah okay but we’re going to finish
this witness this morning I take it yes
absolutely um I have not many more
questions no that’s that’s fine Mr okay
thank you
sir
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good afternoon sir can you see and hear
me yes I can thanks you I’ll carry on
um we mention we I went earlier to your
knowledge of Gareth Jenkins and the
um the Alle well the advice of Simon
Clark uh that he was he was in breach of
his expert duties and I ask you by 4th
of July
2013 uh were you aware of that and you
said you couldn’t recall um do you
remember do you now have a positive
recollection as to when you first became
aware of those issues uh not a precise
positive recollection no sorry can we
turn to poll
3060 681
please so this is um an email from you
to will Gibson MH on the uh 9th of July
2013 and it says next to will Gibson’s
name sh ex or she yes that’s a
shareholder executive yes that’s the the
department at the the biz government
Department that’s responsible for the
post office so the effectively the
agency that um oversaw the uh crowns
shareholding interest in post office did
you often report to people at uh
shareholder executive no by
exception you see um you say urgent will
Intel on MP cases jfsa case Intel to
follow and you set out A matter on the
misra case do you remember why you were
asked to provide this
information uh no it may have been given
it was it was she and will Gibson it may
have been that um some information
needed to be given to a government
Minister would you have put this
together yourself or would you have
relied on other people absolutely not
this would have come from Mr Singh Mr
Singh yeah and would it have come from
um would you have taken any advice from
cartright King as
well I can’t recall I think it might be
Mr Singh because also he is copied in on
the
email it says Miser case defendant
pleaded not guilty to theft but pleaded
guilty to false accounting defendant
produced computer expert to argue
Horizon issues post office used F Jitsu
expert to argue Horizon issues outcome
found guilty by jury of theft after a
7-Day trial evidence relied to convict
she alleged it was either Horizon
computer or employees she said a she
said after she had got rid of employees
the loss got worse therefore she blamed
Horizon brackets at a later stage at a
late stage in proceedings after it was
listed for trial so this trial got
adjourned whilst each side got Horizon
evidence together it was a jury trial so
no explanation as to what evidence was
relied on by them
reconviction why didn’t you refer to the
advice that had been given about Gareth
Jenkins that he was in breach of his
duties as an
expert I can’t I can’t recall I know
this would have been provided by Mr
Singh and I would have been relying on
him to give
me the correct
picture I know you said
uh you can’t recall when you
became aware o of the allegations about
Gareth Jenkins if you were aware of
those matters at the time you sent this
email do you accept you should have
included it in this
email I I wouldn’t have necessarily
assumed that
because something around that might have
been dealt with by Susan fren at that
level with
sheeks would you on the basis that
you’re aware of um the issues to do with
horiz with Gareth
Jenkins this summary of the M Mis case
isn’t a full and fair description
of um the issues post office limited was
facing in relation to this misery case
was it sorry I think the context of this
this email was that um an urgent
turnaround on it was needed and I think
it’s done in a matter of minutes if you
look at the timing so it wouldn’t take
you long would it to um to
write we have advised that the expert
evidence in this trial was provided by
an expert um who has been in breach of
his duties I agree with you but I’m not
I can’t recall at the time whether I I
took the point or
not wait you didn’t take you didn’t
raise the point did you I didn’t raise
the point because it’s not on that email
no and the issue is why do you know why
I can’t I can’t recall at the time can
you think of a good reason why you
didn’t I’m I’m sorry I
can’t would you accept that it’s a
failing not to have referred to
it I don’t know if it’s a failing
because I don’t know if that information
was being separately communicated to shs
well it would it be incumbent on you to
check if it was being separately
communicated to sheeks so if you see
I’ve also copied in Susan kryon and orn
Lions did you take steps with them to
see that they were communicating the
issues with Gareth Jenkins to uh
shareholder executive I may have done
but I can’t honestly
recall I think you told me that this
email was either drafted by these are my
words not yours so let’s see if I’ve got
it right it was either actually drafted
for you by Mr Singh or the information
came from Mr Singh I think so if Mr
Singh knew of the um advice about Gareth
Jenkins have you got a view about
whether he should have included it or
told you about it
um if he knew about it and he thought it
was per from the criminal perspective
then yes I suppose he would should have
put it on the
email and Miss Kon Miss
Lions uh were copied into this email and
if they knew of Mr
jenkins’s uh the advice about Mr Jenkins
should they have uh in some way
intervened to ensure that the
shareholder uh was given that
information I I would have expected them
to which is probably why I’ve included
them on copy in the
email so one way or another it seems to
me that you are accepting that the
shareholder should have been told about
the information assuming that any of
these people knew about it um and you
didn’t tell him either because you
didn’t know or or you assumed that one
of those would tell him is that it in a
nutshell I think that’s probably it in a
nutshell sir right fine
think so that document can come
down before you went on your sabatical
yes were you
um did anyone raise a
concern about how Gareth Jenkins had
been
instructed namely whether he’d been
advised of his duties as an
expert I I can’t recall specifically
that matter being raised that’s not to
say it wasn’t discussed by someone but I
can’t recall
it can you recall whether there was any
investigation into the manner in which
Gareth Jenkins had been instructed by
the post office limited criminal law
Department I can’t recall
that during the the those July weeks in
the run up to the sabatical did you
discuss this with John El Singh at all
um I can’t remember if I discussed it
with him or
not would you accept that it was
important for the Post Office legal
department
to uh examine how Mr Jenkins had been
instructed and whether he’d been
instructed properly yes I would and who
do you say was responsible for
that
so I was going on sabatical and I would
have thought an issue like that would
have been dealt with by Susan
Kon um with support from Mr Singh or Mr
Williams
um the advice on shredding sorry the
advice on Gareth Jenkins date of 15th of
July I can bring it up if it assists do
you recall reading
it
um I recall
I might have read it when I came back
from
sabatical you say you might have
you it’s I can’t recall specifically but
it would be likely I would have read it
when I came back from
sabatical and did you when you read it
uh check whether any steps have been
taken uh to examine how Mr Jenkins had
been instructed so I remember having
conversations with Susan Kon when when I
came
back uh and it was I think on the cusp
of her
resigning around in the in sorry in the
wake of her resigning I suppose what
matters needed addressing and I can’t
recall that being on a a live list of
matters as a as a point to be
resolved did you um read the 2nd of
August I can take show it if if it’s if
you need the second of August advice by
Simon Clark um regarding allegations
that um documents being
shredded I can
remember I
think seeing that when I returned from
sabatical presumably that came as a that
was quite a yeah significant surprise
yes um what steps did you take if any to
see whether those matters have been
investigated so I remember
having conversation it might have been
Mr Singh it might have been with Susan
Brighton um because I saw Susan kry and
the correspondence that related to that
subsequently
um and I have a vague recollection that
it was described as a as a dealt with
matter and in fact there hadn’t been any
document
destruction but that’s a vague
recollection only
I want to cover one final topic before
there will be some core participant
questions um which I anticipate um will
take us to lunch uh could we please
bring up poll 20 1 92214
thank you can we go to the um bottom of
page three
please sorry the bottom of
page oh no yes bottom of page three so
we see um discusses a letter from the
received from the
CCRC uh from Susan kryon I should say
sorry during
copy and it says their advice feels odd
to me as if given on a take it or leave
it basis and I’m not comfortable that’s
particularly useful in this
context uh could we discuss I’m happy to
go to another firm that specializes in
criminal law or a barister somehow it
feels as if there is a conflict here
which I’m not sure I
understand do you recall there being any
conversation about whether or not
cartright King had a conflict of
interest in uh overseeing matters
related to the CCRC and the review of
past convictions uh no I
don’t you were copied into this email
did you not discuss this with Susan
kryon at the
time um no because I think by this stage
I had
left and I was on sabatical I think I
went on sabatical Friday the 12th
so you can’t assist at all with any
discussions on you can’t assist at all
with discussions on a potential conflict
of interest uh no I don’t I don’t think
I
was I know there are occasions where uh
I’m on spaical and I respond to emails
and there’s one mention of me doing a
call with Beach crofs over find it but
other than that I can’t recall being on
any phone calls or any discussions
whatsoever
thank you that’s all the questions I
have sir we have um questions from three
sets of core participants uh I this the
recognized legal representative for
Gareth Jenkins who has given a time
estimate of 20 to 25 minutes um Mr Henry
I think said 10 minutes uh and uh Mr
Jacob says five minutes um well we
better crack on because they all all
going to finish by 1:00 Mr yes I was
going to say the same um so I’m in yours
hand hands would
you let let’s have the two short ones
first and and please stick to the uh
shortness of the questioning that you
predicted yes so um in on that basis
then it’ll be Mr Jacobs first thank you
um Mr Flemington I represent a large
number of sub postmasters um could we go
very quickly to um P0 01 4337 n it’s a
um an email um from John El sing to
yourself uh dat of the 16th of July
2012 and you deal with it at paragraph
88 of your witness statement so we know
you’ve seen it um This was um an email
chain in light of Henry boer’s advice um
dated the 11th of July when um he talks
about um what’s been described as a
floodgates issue
and um there was um there were severe
incriminations for the business um if
second site uncovered any systemic
problems I think you dealt with that
with Mr Stevens at 11:00 this morning
yes yes so um what we have here is uh Mr
Sing saying and if we could uh scroll
down to the to the sixth line um all
this will mean we have to provide extra
evidence as defense would put us to
proof as to systems integrity also
increas in vast disclosure requests
cases being transformed from General
deficiency trials into boundless inquiry
into Horizon system this would mean vast
scope of disclosure requests task would
be close to overwhelming only way to
comply with prosecution disclosure
obligations would be to instruct an
expert at Fujitsu and and then talks
about sticking points sticking points in
disclosure process would be cost of
obtained Horizon data transaction logs
will be obtained from Fujitsu that show
the details of every single transaction
at a post office then he goes on to talk
about costs for example defense requests
could be for logs from 6 months prior to
uh defendant’s tenure to the present
time and cost of obtaining that uh data
would frankly be astronomical it is
expensive to obtain this material
because expense simply comes from post
office contractual obligations to Fugi
so he’s talking about the contract for
example to obtain six months data would
cost
£20,000 and mountain of information
costing more than five coverage more
than 5 years would cost question mark
question mark question mark so what we
have here is um the head of criminal law
um at post office saying that because of
the contract with
Fujitsu um there is a bar to compliance
with disclosure obligations in criminal
cases because the costs are untenable or
unaffordable do you accept that that
that’s what he’s effectively saying Mr
flamington I think he’s saying that the
the costs are high or significant um my
reaction to that would have been that
this shouldn’t be driven by cost yeah
it’s Mr sing’s concerns though that The
Floodgate point that Mr Boya raises um
would have an impact on ability to
comply with
disclosure do you accept that
um I suppose in one sense he’s
saying the flood G would be very very
costly and the way I would have looked
at this would have been to say well
there might technically be a limit on
costs Etc but everything uh on the
commercial side would be up for
renegotiation didn’t this put you on
notice Mr flamington that there was a
concern that post office had not been
complying with their disclosure
obligations in criminal cases where
Horizon issues were raised because of
the contra actual issue with fucu
because of the cost of providing that
information I don’t recall making that
conclusion because the implication for
Mr Singh is well we can’t afford to um
provide this disclosure in the criminal
cases um because it’s too expensive and
let’s just hope that somehow post office
can muddle through isn’t that something
that’s quite woring when when you’re
thinking about criminal prosecutions and
disclosure and how important disclosure
is so so my view would have been that
cost would not be a restriction on us
complying with our legal obligations how
could it be did you respond to Mr Singh
and say no absolutely not this cannot be
the post office’s approach I can’t I
can’t recall I’m afraid did you speak to
anyone about
it um it’s likely I would have spoken to
Susan kryon about it and was the matter
ever resolved between post office and
fij Jitsu are you aware that that of any
meetings where it was said we simply
can’t afford to be bled dry in this way
because we have absolute disclosure
obligations in criminal cases I think
there may have been discussions with
Fujitsu around assistance for disclosure
obligations I can’t recall when those
would have been but they may have
been um disclosure 2012
2013 and did you make any inquiries as
to whether this had been a problem or an
issue with disclosure in past criminal
prosecutions such that that they might
they might be unsafe I I can’t recall
that and why not given what Mr sorry I
simply can’t remember okay very well I
don’t have any further questions thank
you thank you thank you Mr Jacobs is it
Miss hen Mr Henry or Miss Paige Mr Henry
right um Mr Flemington if it were to be
suggested that your evidence is a
sustained study in accountability what
would you
say I’ve tried to answer the question
sir to the best of my
recollection I want to pick up on what
Mr Jacobs has said and you saying that
you would have given
unequivocal advice that costs shouldn’t
enter into the issue concerning data
you remember You’ just yes yeah could we
go please to
p001
43384 and could we go down please to um
well we can see do you think we should
invite Simon Baker to the call so that’s
the company secretary asking for your
opinion on that so you’re clearly you
know being consulted by the company’s
secretary as to whether Mr Baker should
be involved correct yes go down please
to your
email and that is 16th of July
2012 um and this of course is in the
aftermath of second
site uh and it looks like full steam
ahead for the Post Office doesn’t it
assume your recommendation hasn’t
changed
and is still to keep fighting any such
application that would be an abuse of
process application issues appear to be
coms brief needed to rebut the myths
untrue reporting about second site
review Clarity regarding second site’s
terms of reference timetable Etc a plan
Bible of what information we’re going to
provide our legal teams with and the
courts if we have to fight applications
to stay plan to deal with disclosure
requests EG how we balance obtaining
transaction logs and other Horizon data
alongside the costs of doing so do you
want to reflect on the answer you gave
to Mr Jacobs so point four is about in
terms of doing sensible budgeting and
it’s basically uh saying that we would
have to be able to find the money to do
these
activities well it doesn’t actually say
that does
it how we balance obtaining transaction
it’s a poor choice of words by me
because I think it’s ambiguous but what
I but they are your words Mr Flemington
and I agree um but the sentiment of them
was that we were going to have to have
budgeting issues in order to find the
money to do this you seem to be quite
involved in criminal law for somebody
who said that you weren’t involved in
criminal law at all what do you have to
say to that um I found myself getting
drawn into um these matters
occasionally um and sporadically and I
would always um try to progress the
matter in good faith um where I could
but where I couldn’t I would escalate up
to Susan Kon
um I want to go back now to October
2010 and no need to get it up on the
screen because you’ll you’ll remember
the emails from Mandy Tolbert but just
before the sea Mis trial begins your
contact Ed by her in an attempt to
arrange and I quote a conference call to
discuss how we deal with these cases
going forward possibly on the 20th of
October as by then I anticipate that
misra will have concluded and then on
the 21st of October 2010 when the jury
was out in Mrs mis’s case Mrs Mandy
tobert sent you another email a second
attempt at organizing a conference and
your first on the distribution list uh
you your evidence as I understand it is
that you’re accidentally drawn into
those emails because really it’s it’s
nothing to do with
you
so if I was drawn into things such as
the conference about second site or the
Wy emails um or the like it wasn’t at my
choosing it wasn’t at my control and at
that point I thought I will try to
progress matters as best I can and where
I can’t I will escalate them may I make
a
suggestion these
cases concerning Horizon that Mandy
Tolbert was involving you in in October
2010 reflected the post office’s policy
of bringing test
cases and of course nobody knew what the
outcome of the Horizon what the outcome
of of the Mis trial would
be and you were involved in this to as
it were deal with
policy because what would have happened
if for example SEMA misra’s case had
ended in an acquittal you would have had
to have been involved in dealing with
the aftermath of that consistent with
your
responsibility so there’s two things I’d
like to say to that so one is um I can’t
recall any meetings ever happened on
that uh and that particular work strand
going forward and
secondly this probably was in the
context of
separation and the fact that actually
Mandy tolber was thinking in terms of
eventually Royal Male civil litigation
won’t be doing these cases and will hand
over conduct of them to post office
so my I can’t recall but I think it’s
likely she was starting to think about
planning that trans that transition over
I suggest that’s a
rationalization and of course it would
have absolutely nothing to do that
answer with your receipt of the Horizon
bandwagon email would it
um I believe later that afternoon Y no I
I remember I quite remember the email
you’re talking about because that was
the one where I thought the language was
um not good inappropriate yes right um
um
but there was a point I think there was
another email not in my bundle but
someone else’s where there’s a thank you
for involvement on misra and I think I
might have been on that and I remember
contacting the person who sent it and
said thank you for the sentiment but I’m
absolutely not involved in the Mis
case and you say that but of course in
July 2013 as we saw from Mr Stevens last
questions to you there’s the will Gibson
email just after the second break and
you say that was drafted by John El
Singh yes sir uh so why do you copy him
into it if he’s drafted it because if Mr
Gibson had any further follow-up
questions he could go to Mr Sing I see
um I want to go to one final document
please
pp0 31352
and that
is sent on the 1st of
July and it’s discuss of defect in
Horizon in court SEMA misra and Lee
Castleton by that stage you were aware
were you not of the difficulties with
Gareth
Jenkins I I can’t
recall you can’t recall were you were
shortly aware thereafter your answers to
Mr Stevens about the difficulties with
Gareth
Jenkins there would have been some point
at which Gareth Jenkinson’s an issue was
flagged during those two weeks in July
but I cannot recall
precisely I mean it’s clear you’re the
first recipient of this together with
the company Secret
uh also the Chief Information officer
Leslie J Su uh it’s clear that Gareth
Jenkins is the lynchpin of your defense
in Horizon and then he was to your
knowledge damaged
goods uh why wasn’t the CCRC immediately
informed of
this Mr
Flemington I wouldn’t have
the knowledge to know to inform them and
I would be relying on Mr Singh and
cartright King to flag
that is
that your evidence Mr Flemington that
you wouldn’t have
appreciated what you as head of the
legal department ought to have urgently
tabled for
discussion I was surrounded by other
lawyers and expert advisors and external
counsel and I cannot recall the that
point as an urgent matter being
highlighted at all so this all becomes
does it not part of a a picture of
mutually delegated
irresponsibility somebody else is
dealing with it no sir we are trying to
take advice taking advice and acting on
it in good
faith thank you Mr Flemington thank you
Mr Henry so is it Miss dobin or Miss
Oliver so actually just to interrupt
this one point I think I must clarify
now arising from those questions um it’s
an answer that Mr Flemington gave on the
live note page
95 um line 18 Mr Flemington yes you said
but there was a point I think there was
another email not in my bundle but
someone else’s where there’s a thank you
for involvement on misra and I think I
might have been on that and I remember
contacting the person who sent it and
said thank you for the sentiment but I’m
absolutely not involved in the misery
case yes can I just check what bundle
are you referring to not in my bundle
sorry yes but you say I think there was
another email not in my bundle but
someone else’s I can’t call have you
read someone else’s bundle of documents
for this for these inquiry proceedings
no I haven’t I would have seen something
on one of the publicly available live
feeds thank you so that was the simple
point of clarification I needed to make
fine okay next please thank you sir it’s
it’s Miss Oliver today yeah I can see
that now yeah thank you uh good
afternoon Mr Flemington I ask questions
on behalf of Gareth
Jenkins um you’ve said that you have no
criminal litigation experience correct
and the thrust of your evidence has been
that you left supervision of jell Singh
largely to Susan kryon I didn’t leave
supervision to Susan kryon Susan kryon
was the GC and that is the way she
organized the department set up she said
at the outset you won’t be supervising
uh criminal litigation or civil
litigation I will do that and you’ve
said that you were not aware of whether
Miss kryon had herself any experience in
criminal criminal litigation
correct did you consider that to be
appropriate that there was one lawyer in
pole responsible for the prosecution of
sub postmasters but he was in effect
working unsupervised by anyone with
criminal litigation
experience
so that was the way it was dictated to
me that it would be set up
I had asked before separation would we
go and
recruit a criminal lawyer and was told
no that it had been agreed at quotes a
high
level that one lawyer was enough and
that they were being transferred over
from the criminal law
Department do you agree that that made
po legal significantly reliant on the
expertise and competence of Mr Sim
to a degree but you have to consider
that we also had cartright King uh and
subsequently Brian Olman reviewing the
work of carright King if you will um and
there was no restraint or limit on how
much cartright King could be used or
deployed in the business in relation to
the criminal
prosecutions when criminal prosecutions
came within your perview as head of
legal did you take any steps to
understand or familiarize yourself with
any of the criminal law upon which Paul
brought those prosecutions so I would
not say that they came within my purview
um they were always to be supervised and
within the purview of Susan
kryon um when they came within your team
then did you take any steps to
understand or familiarize yourself with
any of the criminal law that was
applicable I did get an ini short
briefing from John elel Singh on the
overarching uh aspects of the criminal
law in relation
to uh the pole
prosecutions um
but again I was not responsible for
those The Carriage of those prosecutions
or the supervision of Mr
Singh did you ever review the poll
prosecution files or dip sample the
prosecutions that were being conducted
no I did
not and in relation to cartright King
then did Paul have any arrangements for
reviewing their work or sampling the
files on cases that they were
responsible for prosecuting I can’t
recall the specific provisions of their
retainer and their engagement
letter all right um can we turn then
please to the Simon Clark advice um do
you recall that that was sent to you on
the 17th of July of
2013 um I don’t recall off the top of my
head no but do you think that sounds
about right or would you like to go to
the email um may we go to the email
please course it’s
paul1
92249 please
thank you if we can go down to the third
email
please so this is an email from Martin
Smith to Susan kryon copying you Susan
please find attached Simon Clark’s
advice concerning Gareth Jenkins kind
regards Martin do you recall receiving
that on the 17th of July I don’t know
because uh I don’t recall receiving it
sorry um I was on IAL by
then do you agree that during the course
of your sabatical you continued to
engage with emails that were sent during
that time very occasionally um and I had
sorry I I’ve been given uh a specific
lecture by Miss kryon to try and not um
look at the blackbery because I’d
already been raising um issues about
splitting up my role
we can go to some examples if necessary
but do you agree that those emails that
you did engage with involved uh
correspondents with Susan kryon jell
Singh rodrik Williams lawyers from Bon
Dickinson lawyers from cartright King I
think there were about three or four
emails from my
recollection and do you recall that they
concern topics such as the review of
criminal cases questions of disclosure
the instruction of the criminal QC uh
yes they may have done
right um you respond to one of those
email threads on the 17th of July do you
think that makes it more likely that you
would have seen the Simon Clark advice
at the time it was sent to you not
necessarily because I I I tell you why
very specifically in that um I hated
reading attachments on the blackbery I
would read cover notes but attachments I
found difficult to to see with eyesight
um so for that reason I would tend not
to read
attachments
um in terms of the content of those
other
emails there’s a possibility I was at um
the con on the 3rd of
July and that matters got mentioned out
of those it’s possible matters got
mentioned out of other discussions that
happened in those first two weeks when I
was in the
office um but I can’t hand on heart
specifically recall seeing the printed
advice at this
time all right in terms of the substance
of those discussions then can we please
go to poll
047 582 please
thank you um this is the attendance note
that you’ve already been taken to of a
conference at Bond Dickinson that you
attended with Susan
kryon um it starts by saying I had some
time with HF presumably that’s you yes
before Susan kryon joined us um and
there was a discussion um about
cartright King and Rob Wilson if we go
down then please to point six
and here it’s recorded the real worry
was around the Fujitsu expert who
appeared to have known of some of the
problems but not referred to them in his
report or statement even though they
could be dismissed there are
non-disclosure issues here they are
looking at replacing that expert with
somebody else do you recall that being a
feature of the discussion I don’t recall
it specifically um do you agree that
that seems to indicate that even if the
Simon Clark advice was something you
didn’t engage with during your sabatical
you must have been aware that there was
a real worry within Paul about Mr
Jenkins statements being used in
previous prosecutions that these
concerns related to non-disclosure of
the bugs revealed to Second site and
that there was an understanding that he
could not be used as an expert in
prosecutions going forward it’s possible
yes um but I would have expected that
Susan kryon would was then dealing with
that um you you’ve agreed with questions
um from Council to the
inquiry um that once knowledge of those
concerns um came to poll it would be
very important for the post office to
understand how Mr Jenkins had been
instructed do you remember giving that
evidence um I don’t but yes if
you and your evidence is that you would
have expected Miss kryon to do that is
that right yes did you take any steps to
understand what investigation she had
undertaken or what she had learned of
those features I can’t
recall that being discussed when I came
back um that’s not to say it
wasn’t did you before you left or when
you came back ever asked to see any
instructions which Paul or cartright
King had provided to Mr Jenkins uh I
can’t recall
sorry you’ve said you can’t remember
speaking to Mr Singh about how he
instructed Mr Jenkins do you remember
speaking to the external lawyers at
cartright King about whether Mr Jenkins
had been instructed about his expert
duties of disclosure uh I don’t
specifically remember
no did the issues that were being raised
about Mr Jenkins by cartright King
before and after the publication of the
written advice by Simon clar
give rise to any concern on your part
that they might be indicative of broader
prosecutorial failings on the part of
Paul uh
no do you think that was an oversight on
your part uh no I just wouldn’t have I
don’t think I would have thought about
the
point were you aware of the obligations
that Paul held in relation to how they
handled expert evidence in the course of
criminal
prosecutions so
that’s why I felt we were taking expert
advice from cartright King at this point
that any issues like this would be
flushed out and then could be
addressed did you ever consider that an
appropriate course might be to speak to
Mr Jenkins in order to understand the
circumstances in which he came to give
evidence in these
cases um again I suppose I would have
thought that Susan kryon was dealing
with
that this was this was surfacing um just
before I was going away
and she would have had conduct of it for
the next 6
weeks can we go to poll
0193 383
please thank you if we can go to the the
third email down please
uh so this is an email from rodrik
Williams to Leslie SE copying Susan kry
and Simon Baker and
yourself um it it attaches two draft
documents addressed to Fujitsu which
were said which Mr Williams said were to
put us on the record with Fujitsu about
the issues raised in second site’s
interim report one is described as a
shot across the bow the other as a
letter of claim um despite this being
During the period of your sabatical um
do you agree that you appear to reply on
the same day to ask whether the draft
documents have been discussed within
legal that’s the next email up if we can
scroll up
please yes I
do um and if we can please go to one of
the attachments which is poll
014 620
uh and page two please paragraph
four thank you uh we see there that it
said post office was therefore
disappointed to discover that witness
evidence prepared by Fujitsu may not
have been fully disclosing historic
albeit known and resolv defects this has
led to post office having to review all
its historic criminal prosecutions for
the last 3 years years to ensure that it
has not breached its duties of
disclosure under the criminal court
rules do you agree that your email that
we just looked at rather suggests that
this was an attachment that you would
have opened
um I honestly didn’t look at attachments
and I so I wouldn’t have opened and seen
this is it something that you looked at
when you returned to uh Paul after your
period of
sabatical I would have I remember
speaking to Susan kryon when I returned
and because in the context she was
resigning um there was very quickly
activity around dividing up matters and
responsibility for matters um and I
cannot
remember this being assigned to me in
terms of progressing that it if it was
to be progressed it was being progressed
by someone else but I can’t honestly
remember can you call any discussion at
all as to what as to whether to write to
Fujitsu in these terms um no I can’t and
what decision was ultimately made in
that
regard I can’t recall anything in that
in relation to that sorry thank you one
final document from me please it’s poll
0155
um this is um a handwritten note we know
that it was authored by rodrik Williams
the date of the note at the top right
hand corner appears to be the 2nd of
September
2013 which was the Monday before you in
your statement say that you returned
from your sabatical you returned on the
3D of September is that right I I think
I may have returned on the second second
all right so you returned on the very
day that this note appears to have been
authored yes um the note refers to
conversations with Martin Smith of
cartright King if we can please go down
to the bottom of page
one um do you see in the right hand box
the question what were we doing to
instruct
GJ yes do you understand that’s likely
to be a ref ref to Mr Jenkins and then
in the left hand list first arrow point
down don’t think he’s ever been advised
of his
duties do you see that yes um were the
contents of this note ever discussed
between you and Mr Williams I can’t
recall discussing this at all can you
recall whether it was known within Paul
by September of 20
that Paul had failed to instruct Mr
Jenkins as an expert witness in his
expert duties or that there was at least
a very serious question as to whether it
had ever instructed him in that
way I would have I would have
um probably known
of the issue per se but I can’t recall
what level of knowledge there was across
pole if that was your question
sorry well would you have regarded it as
significant information that you ought
to have been told the contents of this
note uh yes um and do you know whether
it was for this reason that a draft
letter of claim was not sent to fij
Jitsu uh no I don’t
know um do you recognize that Paul ‘s
failure referred to in this note to
instruct Mr Jenkins in his expert duties
and in accordance with their legal
duties was an exceptionally serious
matter because it gave rise to real
questions about the basic competency of
its
prosecutors so obviously it’s not my
note I didn’t author it um and I can see
there it’s talking
about raising questions of what were we
doing and don’t think but I don’t see it
it’s it’s conclusively coming to a
conclusion that there is an issue there
do you think that the question or or the
serious question over whether Mr Jenkins
had been advised of his expert duties is
something that Paul ought to have
treated with the utmost
seriousness uh
yes but if I look at this
note the issue is being thought about
and worked on and discussed
thank you those are my
questions well that’s um extremely good
timing so my uh gratitude to the um
representatives of the core participants
who have um tailored their questions to
finish promptly at 1:00 so uh thank you
um Mr Flemington for coming to give
evidence and providing a witness
statement I’m grateful for your
participation in the
inquiry thank Mr Stevens 2:00 yes
sir sir may I just make one point yeah
which was I had agreed with Mr Stevens
at the start that I would actually uh
like to have said some words at the
start um to express how sorry I was well
please say what you wish to know thank
you so I just wanted to say um how sorry
personally I felt um for all the pain
and suffering that has been caused by
this Scandal to all the people who have
suffered um and I hope today that in
some small way my witness um appearance
will help the inquiry establish Lessons
Learned thank you Mr Flemington all
right we’ll start again at 2:00 thank
you
sir
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good afternoon sir can you see and hear
us yes thank you may we please call Mr
Bo Mr B
[Music]
Bo I do solemnly I do solemnly sincerely
and truly sincerely and truly declare
and affirm declare and affirm that the
evidence I shall give that the evidence
I shall give should be the truth shall
be the truth the whole truth the whole
truth and nothing but the truth and
nothing but the truth
could you confirm your full name please
Mr Boer yeah it’s Harry
Boer thank you to for coming to the
inquiry to assist it in its work uh as
you know my name is Emma price and I
will be asking you questions on behalf
of the
inquiry you should have a hard copy of a
witness statement provided by you to the
inquiry in front of you do you have that
I have that it is dated the 2nd of April
2024 and if you turn to page 32 of that
please does your copy have a visible
signature it does is that your signature
it is my signature I understand there is
a correction to the statement you’d like
to make is that right yes um I stated
paragraphs 26 and
69 uh that I wasn’t aware of the back
door into to the Horizon system until
the deoe
report um I’ve seen emails since which
show that I was told about it in um
November
2012 with that correction made are the
contents of that statement true to the
best of your knowledge and belief to the
best of my knowledge and
belief that statement for which the
reference is
Win
1099
9010 is now in evidence and will be
published on the inquiry’s website in
gour starting please with your
professional background you joined
cartright King solicitors in the summer
of 2008 is that right that’s correct
having been in practice at the
independent bar before that since n
1990 yes your practice at the
independent bar had been exclusively
Criminal criminal exclusively criminal
and you had been involved in both
prosecution and Defense work
indeed you say in your statement that
when you joined cartright King you were
the first employed Barrister in The Firm
is that right yes it was but in the few
years which followed the firm expanded
their advocacy Department by employing a
large number of barristers and solists
with higher rights to cover almost the
entirety of their Crown Court work
that’s correct
could we have on screen please paragraph
five of Mr Bo’s statement that’s page
two at paragraph five you say this when
I joined cart Wright King they had three
offices Nottingham Darby and Lester they
embarked on a period of Rapid expansion
by acquiring other firms of solicitors
at their Peak they had around 20 offices
from London to Newcastle this involved a
great deal of Fairly fairly ruthless
organ reorganization as they cut away
the dead
wood thinking back to the rapid
expansion which took place was the
reason behind this that it would enable
cartright R cartright king to prosecute
post office cases in house no no no the
the expand
was at the time uh there was a proposal
that um legal aid firms would be limited
to a very few in each legal aid area and
so what they were trying to do was put
themselves in as many legal areas so
they could bid for the
contracts did The Fairly ruthless
reorganization you refer to have any
impact on the post work office work
which was being done at the time by the
advocacy Department I don’t think
so that can come down thank
you did members of the advocacy
Department prosecute post office cases
in both the magistrates court and the
Crown
Court uh
an there was um quite a lot of work that
was prosecuted in the magistrates court
and the Crown Court but most of the
Crown Court work went out to external
counsel
the advocacy Department was based in the
Nottingham office is that right that’s
correct the head of Department was
initially one of the equity Partners
Steve gell Thorp that’s correct and then
Andy that’s
right you say in your statement that it
was Andy cash who introduced the then
Royal male group work to can’t WR king
that’s right and he was based in the
Derby office but spent more time in the
Nottingham office when he became head of
the advocacy that’s
correct was there any provision at
cartright King for training in relation
to private
prosecutions and in particular
prosecution disclosure obligations in
private prosecutions that was very
little very little as in none
or well as as far as I was concerned uh
the private prosecutions that they did
was the Royal Male work initially they
did some rspca
work um and then Andy cash bought in the
poll work I think around about
2012 um but as far as actual training is
concerned I certainly wasn’t trained um
and I don’t know what happened to those
who were doing the poll work because it
was being done in other offices apart
from
mine what were you told when you first
were first introduced to the Royal male
group and then later post office limited
work about the basis on which
prosecutions were brought by the post
office and the history of this I’m not
sure I was told very much at
all you were aware though that the post
office was bringing private prosecutions
the work that you were doing yes at the
time did you recognize any risk arising
from the post office being
simultaneously victim investigator and
prosecutor well at at the time I wasn’t
really involved with it if i’ address my
mind to it then yes I probably would
have seen um the U difficulties that you
put forward but the post office work
that um the Royal male group work
initially was tended to be
postmasters who or not or role male
workers who were stealing from the
post um and then in due course the post
off the poll work um was the work that
this this inquiry is in fact um looking
into but as far as I was concerned uh I
didn’t do very much of it at all until
Andy cash came into the advocacy
department and then he he started to
pick the brains of the various Advocates
there about various issues and would ask
us to write the odd advice um charging
advice
Etc you address at paragraph 31 of your
statement the training you received on
the horizon system can you help with
when you receive this training do look
to the statement if you need to I can’t
recall I think it would have been about
2012 do you say that TR training did not
cover the reconciliation of balances
what did it cover can you recall uh well
it it it I can’t you can’t remember
where it was it was somewhere up north
um but they had a um Horizon system and
effectively myself and a number of
external Council were actually shown how
the system worked effectively from a
Ker’s point of
view were me of the advocacy Department
responsible for keeping up to date with
their own continuing professional
development
obligations uh to an extent yes was
there any oversight of that by yes there
was you you you had show that you done
your um
CPC you say in your statement that you
were made a director of cartright king
during the period covered by the inquiry
yes can you recall when it was that you
became a director I I can’t I’m
afraid you say you were one of around 30
directors what responsibilities did you
have as a director over and above those
as a member of the advocacy
Department uh there were various
responsibilities um file reviews was one
of the main ones so we had to review uh
the files of other other people in the
department but you say you held no
equity in The Firm is that right no it
it was more of a reward that came up
with the rations rather than a pay
rise and you resigned from cartright
King in December 2015 is and what was
the reason for your resignation uh
myself Martin Smith and Simon Clark
wanted to set up our own
business is that something you went on
to do that’s something we went on to
do turning please to your involvement in
the Royal male group and later post
office limited
work and dealing first with the period
prior to the interim second site report
coming to your attention in
2013 could we have paragraph eight of uh
Mr bu’s statement on screen
please that
is page two
in the last line on this page you say
the RMG work was more provincial at that
stage but in
2012 Andy cash brought the pole work
into the firm which was Nationwide in
nature you say that the post office work
was Nationwide can you help with the
scope of cartright Kings in instruction
to act for the Post Office and in
particular whether the general
instruction of cart Wright King covered
criminal cases in Scotland and Northern
Ireland um the answer is I can’t help
with that very much um the I we didn’t
tend to do Scotland and Northern Ireland
that was outsourced to um other
solicitors obviously you’ve got the
Scottish law problem which which none of
us were capable of doing Scottish
law certainly by around 2013 that was a
firm called BTO solicitors those on
Scotland um can you recall and the names
of any other firms that were involved
either for Scotland I can’t recall BTO
was the one we dealt with
most what was your understanding of the
prosecution process for cases in these
jurisdictions
I didn’t have an understanding at all
I’m
afid looking then at paragraph nine of
your
statement you say the bulk of the poll
RMG work was done by Martin Smith based
in Derby and Andrew bulk based in
leester they would prepare the cases and
brief them out to council the RMG work
involved some of the same type of cases
as the later poll work but also involved
Postman stealing from the May
and then at paragraph 10 when he was in
Nottingham Andy cash would ask my
opinion about the pole RMG cases both
informally and on occasion he would ask
me to settle an indictment or an advice
on evidence this would involve the file
being brought to Notting him so that I
could work on it it would then be
returned to the lawyer working on it and
I would be unlikely to see it again as
it would usually be briefed out to
council so that’s what you were
referring to earlier in terms of cases
going to council
in Crown work Court
work you address um a case you
prosecuted involving a manager of a
crown post office at paragraph 12 of
your
statement and you say it was a case that
postdated the cessation of prosecution
of horizon cases and that it was a case
that didn’t rely upon prosecution um
Horizon evidence yes with this exception
is it your evidence that you did not
prosecute a trial I I never prosecuted a
trial for post office um I never had
conduct of a prosecution brief as
councel or or as
litigator um I think I did a sentence in
Nottingham because it was in Nottingham
and that’s where I was based but apart
from that I don’t think I did any other
court work so this case at paragraph 12
when you say you prosecuted it are you
saying it’s not one that went to trial
it it pleaded okay I
understand that can come down now thank
you you say at paragraph 18 of your
statement that your direct contact with
post office Personnel was fairly limited
uh but that you had dealings with John
El Singh who you understood to be head
of crime at post office
limited who did you obtain instructions
from at the post
office um well I wasn’t actually as I
said instructed in any cases um so I
became involved either because Andy cash
would ask me to do something on a case
or ask me my opinion about one of the
cases um and I would also I was also
involved during the CIF process after
the second site uh review came out
um but again that I would have been
asked by either Andy cash or Simon Clark
to do the work that I was doing so in
the instances where you provided written
advice yes were you not taking direct
instructions from the post office no I I
I would be instructed from someone
within cartri King I
see what was your working relationship
with Mr Singh
like um pretty limited uh I I met him I
think on two or three
occasions once when Simon Clark and I
went down to their old Street offices in
London and a couple of times when he
came up to Nottingham or
Derby and um I spoke to him on the phone
and emailed occasionally he would email
with questions and the like and I would
respond but the main point of contact
between cartright King and um post
office was Martin
Smith you say at paragraph 38 of your
statement that you were aware from the
beginning that the Horizon system was
being challenged by the sub postmasters
for justice
Group by from the beginning do you mean
from the point that you became involved
in any post office prosecutions relying
on Horizon evidence yes I I I only
really became involved in about 2012
what about the system did you understand
was being
challenged uh I understood that there
were allegations that it was throwing
out um false
figures did you consider at the time you
provided advice on post office
prosecution cases that you were under a
GT to act as a Minister of Justice in
preference to the interests of the
client who had instructed you in
relation to the prosecution yes
certainly that this entailed observing
the higher standard of integrity and
having regard for the public interest
yes and that you owed a duty to the
court to ensure that the proceeding was
fair yes
prior to being alerted to the content of
the interim second site report did you
ever question whether the evidence
generated by The Horizon system could be
relied upon for the purposes of
prosecutions uh yes I mean we we were
assured it was our
instructions uh that the system um was
robust
and who did you ask if you questioned it
whether the evidence could be relied
upon um the various casew workers that
the um investigators that U we’re in
touch with um later on um the various
post office um lawyers that we came
across um but there were all I mean one
one kept an eye on on it because this
was something that we were going to have
to counter so as far as um allegations
that the system wasn’t robust you we
were keeping our eyes out to see if
there was any truth in it if there were
any
patterns did you receive assurances from
John El
Singh uh I would have done yes
you refer in a number of places in your
statement to assurances that you
received from all sides that the system
was robust and that there was nothing
that could undermine the Integrity of
the
system were these assurances ones given
before the interim second site report
yes
in this period that is prior to the
interim second site report did you ever
have difficulty getting information from
the post office in relation to
prosecutions well I was doing remarkably
little of the work before the second
site report um so the answer is no I if
if I wanted information I could get
it
um but as I say I I didn’t hold the
brief and I wasn’t litigating the cases
it was a question people would ask me to
advise on a certain part of a case it
may be that they wanted an interim
advice or they may wanted an advice on a
particular thing it might have been that
the advice they asked for was verbal I
would be asked a question by Andy cash
and I would answer it there and then but
I as I said I wasn’t actually working on
these cases a very great deal I had a
full case load of the defense work that
I was actually employed by car I came to
do could we have on screen please
paragraph 21 of Mr boer’s statement
that’s page five towards the bottom
please and at paragraph 21 you say this
it is probably fair to say that the
cartright king post office Department
would have benef ited from proper
oversight from the earliest stages from
people with actual experience of
Prosecuting cases rather than different
individuals in different offices doing
their own
thing what do you mean by different
individuals in different offices doing
their own thing well as I said the bulk
of the work was done by Martin Smith in
Derby and um Andrew BSE in
Leicester um
when I was first aware of the post
office work I I wasn’t I I was aware
that they were doing it and I was aware
that they were briefing external
counsel uh I didn’t realize that both
had such limited prose prosecution
experience uh at the time and um as far
as that was
concerned you know that plainly wasn’t
wasn’t a say a a safe state of things
but I discovered about that much more
when we were the cases and when we’d
effectively stop Prosecuting
cases can you help with what you have in
mind when you refer to proper oversight
from people with actual experience of
Prosecuting cases well I there there are
various things disclosure of course is a
main One charging advice is is second
one um you know as as as far as um
the two individuals who were preparing
the cases as I said they I don’t think
they had an experience of preparing
prosecution cases until they were given
this role at cartright
King and who should have provided this
oversight do you think well it should
have been someone their head of
Department that having them in different
offices can’t have helped there should
have been um a post office department
where they were in the same room where
they were actually able to to pull what
knowledge they had together um but you
that wasn’t the
case it may follow from your answer
given uh just now but was this lack of
proper oversight something which you
recognized at the time that you were
doing post office work well it I became
more aware of it after the second site
came in and we were doing the sift
reviews um as as to what was actually
going on but as as I said I was based in
Nottingham they they were in different
counties did you raise it at the time
with anyone else within cartright King
as a suggestion not at the time no
because as as I said by the time it
really became apparent we weren’t
Prosecuting
anymore could we have on screen please
reference P
0029 326 7
six this is a letter from cartright King
to rodri Williams from the post office
it’s dated the 13th of January 2020 so
postdates your departure by around four
years um I’d like to ask you however
about an observation made in this letter
about the relationship between cartright
king and the post
office the context for this letter is a
review by cartright King of the work it
had done for the Post Office since April
12 which concluded that there were a
number of improvements and changes in
practice which could be
made and going please to point three on
the second page of this
document the author says this further to
the two points noted above we are
becoming increasingly concerned at the
somewhat disjointed way in which we
presently approach poll work
this arises because there is no single
dedicated point of contact within
cartright King for post office limited
as witnessed by the common use of CC
emails to all three cartright King
lawyers undertaking post office limited
work the problem here is that a lack of
continuity on individual pieces of work
together with a deficit in oversight
over the landscape in which C right King
meets post office limited requirements
and advises thereon in plain English
this means that there is an increasing
risk that advice on one topic might fail
to take into account the impa impact of
that topic on another area of post
office limited work with the consequent
risk that post office limited and
cartright King are exposed of particular
concern here is post office limited’s
disclosure duties arising out of the
recent judgment and the need to advise
post office limited on current and
future Crown prosecution service
prosecutions do you agree with the
assessment here of the potential
consequences of a lack of oversight and
in particular the risk that advice on
one topic might fail to take into
account the impact of that topic on
another area of post office work
yes and would you agree that that risk
was relevant to post office dis closure
GTS um in 2012 and onwards not just at
this point in
2020 is this the type of risk you had in
mind when you flag up in the statement
to the inquiry the lack of proper
oversight
yes is it a risk that you recognized at
the
time uh it like as I said my my um
appreciation of how cartright King were
doing it um increased when I got into
the sift work because that was when I
was actually concentrating on reviewing
the cases uh but yes it it was plainly
unsatisfactory that document can come
down now thank
you I’d like to move please to the
advice you gave in the case of Kim Wy
you deal with your advice dated the 11th
of July
2012 at paragraph 39 of your statement
if you wish to
follow at the time of providing your
statement you had not seen your earlier
advice which is referred to in that July
2012 advice the the inquiry has
relatively recently located that initial
advice and I understand that that has
been provided to you I’ve seen
it that is in fact dated October 2011
rather than
2010 uh I think that 2010 date comes
from the date given in the July 2012
advice could we have on screen please
p004 24121
this is the covering email from you to
Robert Daly dated the 28th of October
2011 was Robert Daly the investigator in
the case I’m very probably but I can’t
recall it is copied to Rob Wilson head
of the royal male group criminal law
team at the time is that right I think
so I think this is probably still under
the
RMG uh
umbrella it is also copied to Andy cash
and Rachel Panter can you help with what
Rachel Panther’s role was at the time
well at the time um I I I I I wasn’t
aware of her role she was based in
Leicester um with Andrew
BSE um she was as I understand it I
think she’ passed her bar exams but I
think she was a comparative baby
compared to the role that she appears to
have been
conducting going then to the initial
advice itself could we have that on
screen the reference is p
0042 4122
can you help having had uh the
opportunity to read this document with
the purpose of this initial advice and
in particular was it an advice on
whether the prosecution test was met in
the
case um yes I it having read it I I I I
can see that there is no discussion of
the evidential test or the or the public
interest test
um which looking back on it there should
have been um it’s not to say that I
wasn’t aware of those two particular
issues but I should have discussed them
in the
advice um it would have been um an
advice that would have been at the very
early stages as to uh what the evidence
we
required um and the charges that we
should
prefer you set out the prosecution case
in the first first
paragraph in that at the end of June
2010 Miss Wy received a letter informing
her that when Leighton post office would
be migrating to Horizon online on the
9th of July 2010 she reported a
33,42 96 shortage in trading period 4
she could not explain how the shortage
had occurred the H advisor Brian Cordy
reported concerns that he had been
presenting with money twice whilst
conducting a a cash check prior to
migration on the 10th of September 2010
an audit was carried out at wilon sub
post office branch by Mr Jed dresser and
Brian Marshall post office field support
advisor which revealed a deficit in the
accounts of £
5,434
93 there is then a summary of what Miss
Wy said in
interview which included the fact that
she could not explain the shortages as
she not as she hadn’t done anything
incorrectly she say she was aware that
the cash would be checked after she
received the letter about migration to
Horizon
online she reported the cash shortage um
after receip of this
letter and just going over the page
please she denied theft and false
accounting and cast out on the int rity
of the Horizon system blaming it for the
error you then say this of the defense
case the most obvious route for the
defense in this case is to suggest that
the Horizon system is flawed or possibly
that another member of Staff stole the
money just pausing there this initial
advice predates the instruction of
second site yes you do not seem
surprised in this advice that Miss Wy
was blaming The Horizon system for the
loss does that mean that this was not
the first case in which you were
involved where a sub postmaster was
attributing a shortfall to the problems
with the Horizon system well it was
certainly within my knowledge that
people were blaming the Horizon system
at that stage
yes can you recall how many cases of
this nature you had been involved with
previously as I said very few at the
time
you deal with the statements which would
be needed in the next
paragraph and at the last bullet point
in this section you
say we will need to prove the Integrity
of the Horizon system as there appears
to be apocryphal evidence on the
internet that it is causing big losses
to
postmasters can you recall what the
evidence on the internet that the
Horizon system was causing big losses to
post Masters was I I’m afraid I can’t
but um the sub postmasters were were
were making a lot of noise at this
particular stage and obviously we’d
heard about
it can you recall the basis for your
conclusion that it was
apocryphal well because we we had no
evidence that the Horizon system at that
stage um was producing these errors
apart from the fact that people said
that said it was
at the time did you consider the
alternative explanation that those
saying that the Horizon system was
causing big losses might be right yes we
we certainly considered that and we
asked about it but our instructions were
that the system was
robust you go on under
discussion to conclude that the case
could properly be charged as two counts
of theft and noting that the courts
generally do not like theft and false
accounting charges to be charged in
tandem for the same course of conduct
and you cite there the Eden
case this was a case in which a sub
postmaster had denied theft and false
Accounting in interview and had raised
the Integrity of the Horizon system
blaming it for the error in interview
correct I I can’t recall this read Eden
for 12 years
well well just going over the paragraphs
that we have yeah this was something
that had been raised in interview by the
sub absolutely yes of
course there is no suggestion on the
face of this initial advice I appreciate
you may have had limited information at
an early stage but there’s no suggestion
here that there had been any
investigation of whether the Horizon
system was working properly in Miss wy’s
Branch which you agree with that yes I
we we’re we’re talking very early stages
this is an initial advice I think the
advice is dated what October is it and
uh the audit was
September in octob yes we’re extremely
early stage of of of the
case would you have expected the
investigator in the case
to look into whether the Horizon system
was working properly in Missy’s
Branch um I I I I I would have expected
as as I said earlier in the advice that
we would need to show that the system
was working
properly it isn’t something that you
advised should be done in this advice
can you recall whether there was any
discussion about where I can’t recall
it was a reasonable line of inquiry
wasn’t it that should have been pursued
the issue having been raised in
interview as a line of inquiry which
might point away from the guilt of the
suspect would you accept that
yes did you recognize that at the time
yes I’m sure I did what did you do to
ensure that that investigation happened
well nothing because um I I I wrote this
advice it then went off to whichever of
the CK solicitors who was Prosecuting
the case did and um I don’t think I saw
much more of it until Andy cash asked me
to do the second Wy
advice as I said this this wasn’t my
case I I was asked to do the charging
advice but I I I wasn’t in charge I
wasn’t the case the fire owner
you’ve already recognized that there is
no reference to the evidential or public
interest tests for prosecution in this
initial advice what prosecution test
were you applying when you concluded the
case could be properly charged as theft
well I I I I would have had those two
tests in
mind as I as I con see I there should
have been discussion of those two
factors in this advice um the this
advice to that extent is
subpar your advice in relation to
statements which would need to be sought
included you flagging up that we will
need to to prove the Integrity of the
Horizon
system who did you mean by
we the um uh
prosecution did this include cartright
King yes
was it your view that if evidence of the
Integrity of the Horizon system overall
could be obtained then this would
obviate the need for any specific line
of inquiry as to the operation of
horizon in Miss wy’s Branch
no did you consider at the time of
providing this initial advice what the
post offices disclosure obligations were
in the case in respect of other cases in
which sub poost Masters were raising
Horizon Integrity issues uh not at this
particular stage no because as I said
this this is an extremely early
advice um statements hadn’t been got in
and the um initial bundle I don’t think
have been prepared so no
but as I said I I wasn’t running the
case and I wasn’t responsible for the
disclosure
schedules as a general
principle at the time would you have
understood that subpac Masters raising
Horizon Integrity issues in other cases
might be disclosable in this they might
be disclosable
yes and what it would it depend on the
particular circumstance of the case as
to whether they would be is that well it
would depend on the
um the defense raised in the defense
statement I obviously in those stages
that stage we were looking at obviously
primary disclosure which was matters
which would undermine our case and as I
understood it at the time there hadn’t
been a successful challenge of the
Horizon system uh we were not told about
any bugs at the time
moving please to your advice in the Wy
case dated the 11th of July
2012 could we have that on screen please
the reference is p
00188
94 and going first please to the bottom
of the Third
page we can see there the date of the
advice the 11th of July 2012 and your
name at the
bottom going back to the first page
please you refer back to your initial
advice in the first paragraph and then
you deal with the more recent events at
paragraph 2
and you say this the position of post
office limited has up until now always
been robust when the system has been
challenged in the criminal courts the
system has always been successfully
defended I understand that the post
office has announced that it has
appointed independent forensic
accountants second site limited to
conduct an independent review of 10
cases based on the horizon system
whether this announcement was well
considered or not is not an area that I
intend to address but the Bell cannot be
unrung and there will be consequences
that will have to be dealt
with before we deal with the substance
of this paragraph I’d like to explore
please what prompted this particular
advice could we have on screen please
p001 41393
this is a letter dated the 6th of July
2012 it is from miss wy’s defense
solicitors to C Wright
King and it reads our client has brought
to our attention that the post office
management have decided to allow
forensic accountants to examine Horizon
this decision appears to have been made
after our client appeared in the
magistrates Court for the first Hearing
in view of the decision that has now
been made as of course our client is
maintaining she has not stolen any money
and that the fault is due to the Horizon
system what is your position with
regards to how this matter is now to
proceed clearly we would submit that if
the post office are now looking at the
possibility that there may be an error
in the Horizon system then this case
should not proceed further at this time
perhaps you could advise us as to what
stance is to be taken to enable us to
consider matters further with regards to
possible abuse of process Etc arguments
that may be Advanced on behalf of our
client this letter predates your advice
by five days were you advising in
response to this letter I may have been
I I didn’t see the letter but Andy cash
asked me to write the advice and he may
have been triggered by that
letter could we have the advice back on
screen please it’s
p001 8089
four could we turn please to the third
page of this document which is
subparagraph
63 and here you say this we should
ascertain why we have decided to
instruct second site
limited I presume that it was not
because of any doubt that we had in our
system if so we should be robust in
stating that that that is so I presume
our thinking was that as we have nothing
to hide we have no objection to our
practices being scrutinized in which
case we we should say
so does it follow from this that at the
time of providing this advice you did
not know the basis on which second site
had been instructed to undertake its
investigation I didn’t
did you ask for any information about
the basis on which second site was
instructed from the post office before
providing the advice I
didn’t were you provided with any by
anyone else
no in circumstances where you were
providing this advice do you think you
should have sought further information
as to the basis of second site’s
instruction oh in the light of
everything I now know then yes
certainly we will come on to the detail
of your advice in a moment but in
general terms you were advising were you
not on the approach the post office
ought to take to ongoing prosecutions
which relied upon Horizon data is that
fair
yes in light of of that do you think
that you should have recognized at the
time the need to seek more information
before providing this
advice well the difficulty is this this
advice is I think almost 12 months
before the second site interim
review um and the forensic accountants
of second site when they made their
interim review
they came out with the fact that they
could find no systemic Fault In The
Horizon system and they came out with
two bugs that was after a year of
speaking to sub postmasters access to
Fujitsu and access to post office I
don’t see that I would have done very
much better than they would have
done going back please to the first page
of the advice at paragraph 2
who was it who told you that when the
system had been challenged in the
criminal courts the system had always
been successfully
defended I don’t know I think it might
have been antih I’m sorry can you say it
might have been an cash but I I don’t
know
this is a point which you list at
paragraph 36x of your statement the
inquiry in support of your understanding
at the time that the Horizon system was
robust did anyone tell you about the
acquittal of Moren mckelvie by a jury in
2004 Mrs mckelvie having raised Horizon
issues in her case uh if they did I
can’t remember it
did anyone tell you about the acquittal
of Susanne Palmer in 2007 having also
raised Horizon issues again if if they
did I can’t remember
it well your understanding in both your
statement and set out here seems quite
clear that the message to you was the
system had always been successfully
defended yes
it was not a criminal case but did
anyone tell you about the claim brought
by the post office against Julie Walston
home which was settled in 2004 after a
joint it expert provided an opinion to
the effect that the technology installed
at the branch was clearly
defective no I I if they did I can’t
remember
it also at paragraph 36 of your
statement you said say you were told
that there were never you there were
never any alleged Surplus figures
generated by the system yes again can
you recall who told you that it would
have been the investigators or what what
I picked up from the people who are
doing the post office
cases can you think of a single person
who told you that um I can’t recall no
but I can recall that I that that was
what I was
told similarly at paragraph 36 you say
that very few of these problems were
being reported in crown post office
crown post
offices how did you know that very few
such problems were being reported
because again I was told that I think by
investigators looking at the next line
in your advice at paragraph
two where did you get the information
that post office had announced that
second site had been appointed to
conduct the review andic
cash and the last sentence in this
paragraph whether this announcement was
well considered or not is not an area
that I intend to address but the Bell
cannot be unrung and there will be
consequences that will have to be dealt
with what was your view on whether the
announcement was well considered it
appears from this that you thought it
was not is that fair um
I don’t think that the announcement
itself was um a a very good I’m not
saying that I didn’t think the
investigation wasn’t a good idea because
obviously if there are uh people saying
that the system is false those those
particular doubts have to be chased but
the actual announcement um of the second
site
review uh LED to various difficulties
people wanting to adjourn their cases
until they had reported
Etc um I think in fact um in the Wy case
there was such an application for the
case to be adjourned until after the um
second site report which would have as
things turned out been over 12 months
hence why would that have been a
negative thing people seeking to adjourn
pending the outcome of an investigation
into the system they were blaming for
their losses
well as far as that was concerned it
would have created a log
Jam oh the position of post office was
very um strong this system was
robust was your reaction to the fact of
second site having been instructed the
same as your reaction to the
announcement of it as in did you think
that was negative no I if it were me I
wouldn’t have I wouldn’t have done it I
if I were the people that um in charge
of post office I would have made
absolutely certain through
Fujitsu uh that the system was robust I
would have done an internal inquiry and
made sure that um Fujitsu could go
guarantee that there were no bugs that
could cause what the post sub postal
Justice were complaining
about going on please to the next
paragraph and your advice that is
paragraph
three you say here the first
consequences that we have now given
Ammunition To those attempting to
discredit the Horizon system the
argument will be that there is no smoke
without fire and we would not have
needed to audit a bomb prooof system we
can expect this to go V
in that any competent defense solic
advising in a case such as this will
raise the Integrity of the Horizon
system and put us to proof as to its
Integrity as all of our cases depend on
the system to compute the alleged losses
this is likely to affect a considerable
percentage of our
cases you say in your statement to the
inquiry that you have read the Judgment
of the court of appeal in Hamilton and
others is that right
at paragraph 137 of that
judgment and I don’t intend to take you
to it I hope you’ll take it I’ll take me
uh there is a criticism that by
representing Horizon as reliable and
refusing to countenance any suggestion
to the contrary the post post office was
effectively seeking to reverse the
burden of proof treating what was not
more than a shortfall shown by an
unreliable
system as an incontrovertible loss
proceeding as if it were for the accused
to prove that no such L loss had
occurred is your concern here evidence
of that
approach the reversing of the burden of
proof I don’t think
so does it
suggest that you didn’t think it would
do for the Post Office
to have to evidence the
reliability of the data provided to the
court in support of its prosecutions no
I I I I I I
suggested um at this time that we needed
an expert in order to demonstrate the
reliability of the
system this last line of paragraph three
where you highlight that all of our
cases depend on the system to compute
the alleged losses
is was this not a
reason for you as a barrister advising
on post office prosecutions to be
concerned about the potential
implications for those who had and were
being prosecuted by the post
office
well of course it’s a a concern that the
um system is challenged but there were
at that time no um
successful challenges to it now at that
time I hadn’t seen and I hadn’t reviewed
other
cases um but later on obviously I did
get to review cases where there were
experts uh who gave a or provided
statements for the defense and you know
we did not actually have any positive
evidence uh of the system not being
robust until the second site presented
their interview their interim review 12
months later and that said that they
found nothing systemic with the system
so even
then um when we stopped the
prosecutions it wasn’t because we
thought that the Horizon system was not
robust it’s because we thought we had
problems with our
expert well at at this point in
time all you knew was that second
sighted had been instructed precisely
without any information about the basis
for that instruction precisely and you
didn’t know what the outcome of the
investigation was going to be did you no
of course not so did you think well if
the outcome of this investigation is
that there’s a problem with the system a
considerable percentage of prosecutions
might have proceeded and might continue
to proceed on the basis of unreliable
evidence well it it it that didn’t
concern concerned me at the time because
we were going to get my advice was we
were going to get an expert who was
going to attest us to the reliability of
the
system you go on at paragraph four to
say
this the extra evidence which we will be
obliged to gather will be nothing will
be as nothing in comparison to the
potential disclosure problems that we
may face until the second site
investigation is concluded we will be in
a limbo
one reading of this is that you
considered the second site investigation
to be
problematic because it might give rise
to potential issues in relation to
disclosable material is that the
case well yeah I to an extent yes
because obviously as far as second site
was concerned it might raise stuff that
was
disclosable um but it I don’t think that
um I thought that it was going to
produce material that was going to be of
any relevance to uh the defense and
future because we were told in terms
that the system was robust and what we
needed to do was get an expert to to
demonstrate that it was now obviously
with second site came back and they
discovered faults that was going to
create problems in the
future but that’s not what happened
from the perspective of a
prosecutor is this approach not the
wrong way around in other words if there
was a possibility that an investigation
might produce material capable of
assisting the defense or undermining the
prosecution then that was a reason to
investigate not a
problem I I I I I can see what you’re
saying but as far as I was concerned if
we got an expert who was actually able
to attest to the robustness of the
system
and the expectation was that second site
wasn’t going to find
it you go on in paragraph four to say
this it is essential that the inquiry is
completed as soon as possible and we can
live by its findings we will have to
find out when this inquiry will report
in order that we can choose our strategy
if it is a matter of weeks then cases
can be put over until after it reports
if we’re talking months then the courts
will not wear such
delays might it not have been the case
that a judge presented with a well-made
application supported by evidence would
have seen it as important to adjourn or
stay proceedings pending the outcome of
the
investigation
well that’s that’s certainly one point
of view
it was plainly not my view at the
time Mr Boya C can I ask you um you’re
impliedly if not expressly critical of
the post office decision to announce the
second site
review
but in case X shall we say which um
comes to light uh shall we say two weeks
after second site has been uh
instructed and one of the first things
that um the prosecuting team
sees is that the postmaster in interview
under caution has blamed
Horizon would the fact of the um
investigation then have become
disclosable I’m sorry sir I don’t think
I understand the
question let me try again we we’ve got a
case which comes to light shortly after
second site has been instructed to
investigate and I’m putting this Loosely
um the reliability of horizon uh within
it the terms of reference of the inquiry
all right yes certainly we we then have
a case in which there is an apparent
shortfall uh as
um as um demonstrated by data from
Horizon and when the sub postmaster is
confronted with that in interview under
caution says well I can’t explain it it
can only be due however to some fault in
Horizon now either as part of primary
disclosure but probably more
specifically as part of secondary
disclosure would not the fact of the
second site review become
disclosable I’m not entirely sure it
would all right I want you view about
this if I may because the the whole
whole point of the um the second site
um report being um commissioned doesn’t
actually
support a defense that Horizon doesn’t
work because if the second site report
comes back and it says the system is
robust that doesn’t support the defense
the fact that someone’s investigating it
is is a worry in that um it does back up
as I say in the in the in the advice uh
there’s a no smoke without firearm
argument but there is no support for a
defense by the fact that someone is
investigating remind me is the test for
disclosure that it does um
undermine uh the prosecution or um uh
support the defense or that it may I
think it’s May right so on any view
surely if it’s May then it would be a
disclosable document oh sorry not a
disclos fact yes yes but the fact the
post office made made the announcement
meant meant it was in the public domain
anyway yeah but that’s what was
intriguing me that you appeared to be
critical of an announcement which was in
effect inevitable since once there was a
case it would have to be
disclosed you you may be right thank you
you were in this advice advising on what
the post office should do in relation to
prosecutions going forward relevant
prosecutions would you accept that the
question which mattered at this point
was whether it was possible or fair to
continue to prosecute whilst the second
site investigation was
ongoing well at the time I I I thought
it
was I’m sorry can you can you clarify
your answer on that you thought it was
what I I thought it was fair to
prosecutive we got an expert
demonstrating that the system was
robust there’s no Express consideration
in this advice is there of whether or
not it was possible or fair to continue
with prosecution no there wasn’t was
there any assessment of that question in
your mind at all or was it a foregone
conclusion
that prosecutions could and should
continue my view at the time was that
they could
continue at paragraph five of your
advice you say this I assume with that
we still contend that the system is
foolproof in which case we should defend
it aggressively I understand that the
manufacturers um have not been helpful
up until
now had someone told you before you
drafted this advice that the system was
foolproof uh that was the impression
that I’d got yes
sir that that those are quite strong
words foolproof had someone else used
those words in describing this to you I
I can’t recall where I got it
from fool proof is very absolute and
you’re making an assumption here that
that was the post office
position given that the post office
decision to instruct second site to
carry out an
investigation into the
system was it a safe assumption to make
about such an unequivocal position like
this well with hindsight no it wasn’t
but at the time it’s I thought it was
you comment in this
paragraph in relation to your
understanding about the manufacturers
not having been helpful up to
now and would not provide expert
evidence without large fees being sought
where did that understanding come from I
think that came from
antih you go on this will not do if the
integrity of the system is compromised
then the consequences will be
catastrophic for all of us including
them the financial consequences of
convictions and confiscation orders
being overturned and confidence in the
post office bookkeeping being restored
for future prosecutions will be
astronomical did you understand
understand at the time that if the
system was
compromised then as a prosecutor the
overriding concern should be the impact
that this might might have on the
fairness of past and present
prosecutions
yes is it fair to say that this advice
does not read as though that was your
overriding
[Music]
concern
well as an exercise and reading the
future it actually looks fairly good um
yeah if if if the system was comprom
compromised the system the consequences
would be catastrophic and
that’s what’s
happened well the the last sentence here
you say they should be made to
understand that this is a firefighting
situation and it’s not just our house
that would be burned down if the system
were compromised yeah was it your view
that post office prosecutions were
facing an existential
threat uh if the system turned out to be
compromised then yes it would have been
disastrous for them in fact it has
proved to be disastrous it’s why we’re
here
today did our house include cartright
king um
no it was post office as far as
cartright King was concerned uh we were
acting on
instructions you set out a number of
steps which should be taken at paragraph
six of your advice and we’ll come to
those in a
moment what what we do not see here is
an identification of the need for a
reasoned and rational basis for
continuing to prosecute cases using
Horizon evidence when an investigation
into the system was ongoing is that fair
that is
fair would you accept looking at it now
that that was what was called for in
these
circumstances certainly with hindsight
was that something you should have
recognized at the
time yes I I as far as that was
concerned if I had my life all over
again I think the advice would be
slightly
different Miss price we need to take a
break so just choose a moment shortly
all right uh yes sir I
that is an appropriate moment for the
for the break sir if that’s convenient
if we can have 15 minutes um I make it
just past 10 past now so 25 past yeah
certainly thank you
sir
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hello sir can you still see and hear us
okay yes I can
Mr Bayer uh turning please to uh what
you did advise in terms of approach and
at paragraph six Roman numeral 1 so if
we can have that document back up on
screen
please it’s
p001 808 there we
are 6 point1 if we can go to page three
please starting there we
are you say in my view we should attend
to the
following we should identify the
contested cases civil and criminal in
which the Horizon system has been
challenged we should identify the areas
of Challenge and how we neutralize them
any expert reports should be retained
for evaluation an expert should be
identified and instructed to prepare a
generic statement which confirms the
Integrity of the system and why the
attacks so far have been
unfounded this expert should be deployed
in all cases where the Horizon system is
challenged and he should be prepared to
be called to reply to defense experts on
a case-by Case
basis to what extent was your advice
here to obtain a generic statement
influenc by your understanding in
relation to how helpful the
manufacturers had been in the past when
it came to providing expert
evidence if at
all um I don’t think I don’t think it
was influenced by that at all the the
idea
was that um an expert should prepare a
statement where the guts of it would be
what has actually occurred in the past
and what challenges have been made and
that uh they could comment on the the
particulars of the particular case that
um he was being served
in having had the opportunity to refresh
your memory by reference to some of the
correspondents which followed this
advice is it right that your advice led
to the production of a generic statement
in Gareth Jenkins name uh it did I I
wasn’t happy with Gareth Jenkins because
I didn’t think he was independent but I
was we’ll come on to that
shortly I think you’ve seen a transcript
of the evidence given by Duncan Atkinson
King’s Council on the 18th of December
last year is that right um he was a he
was asked a number of questions about
your advice on Expert evidence in the Wy
case and more
broadly I don’t intend to take you to
the transcript but but if at any point
you’d like me to please do say and we’ll
look to it but I’d like to just run
through some of the conclusions Duncan
Atkinson
reached first of all would you accept
that what was in fact needed was case
specific expert evidence rather than a
generic statement even where the expert
was prepared to be called to reply to
defense experts on a caseby Case BAS
basis well the the expert report should
always be relevant to the case in point
but certain parts of it rather like a
drug statement will remain the same so
if you are giving having an expert who
is actually commenting on why the ca why
the system is robust what the attacks
were made on it in the past were and why
they didn’t actually have
consequence um then that could be
deployed in each case
with reference to what happened in this
particular case because we had all sorts
of different cases
alleged there were people who are
alleged to be taking it out of the
um out of the till there were people who
alleged to be putting in PIN numbers
there were people who are alleged to be
cross-firing postal orders and so each
case would be
different um and the allegation as to
why Horizon was uh not working would be
different in each case and that as far
as I saw it was the way it would work so
the the the guts of the thing would be
there why it’s robust the attacks on the
past but he would refer to the um the
case in itself otherwise it would be
fairly useless in in in
court looking at the way that you have
worded paragraph 61 which we’ve just
been through would you accept that this
advice was seeking to protect the system
rather than to assess the reliability of
fundamental evidence in the prosecution
of sub poost
Masters no I I I I don’t accept that the
the the advice was to say that the
system was robust and respond to it
there’s no protecting involved if the
system has got faults they should be
disclosed the whole point was to
actually put forward the attacks that
have been made on it and this would be
an expert who could actually say the
system was robust and it was also a
windmill for the defense experts to Tilt
at if they were able to actually come up
and the previous attacks on it would be
helpful to the defense in in in that
respect was the purpose of advising that
a generic statement for use in all
Horizon cases should be
obtained to obviate the need to
investigate as a reasonable line of
inquiry whether problems with the
Horizon system might have created a loss
an illusory loss in the branch of a
specific suspect well no because such a
statement wouldn’t in fact work in that
way if if you were Prosecuting a case
you would need to know if you if I was
prosecution counsel in an individual
case I would need to know why um the
defense suggestions um weren’t actually
right and so therefore they would need
to be investigated by the expert on a
case- by case basis I wasn’t suggesting
having a case serve blanket uh in each
case Tri trial Council wouldn’t wouldn’t
have wanted that they’d have said well
that’s all very well in the past but in
this particular case they’re alleging
that this has happened what about
it was the purpose of advising
that this statement be obtained to
obviate the need to identify material
capable of undermining the prosecution
case or that if it if it was in the post
office’s possession might undermine the
prosecution case in any specific case
no the point of it was to
actually uh address the system as to why
it was safe and as far as the defense
were concerned give their experts
something to actually get into and give
them an expert that they could deal
with looking please to paragraph seven
at the bottom of this
page you conclude I can appreciate that
the above might be expensive but it will
be as nothing should the Integrity of
the Horizon system be
compromised taking a step back and
looking at your advice as a
whole do you accept that there was too
much focus in this on the potential
Fallout for the Post Office for Jitsu
and cartright King if the Integrity of
the system was found to be
compromised and insufficient
consideration of the implications for
the people who had been and continued to
be prosecuted on the basis of horizon
data no uh what I was intending to do
was actually create a situation whereby
these cases could be prosecuted fairly
with proper disclosure to uh the defense
our instructions at the time was that
this system was
robust and as far as that was concerned
it would have been a Pity if we didn’t
actually defend the system
properly um because if
a breach in the
um uh robustness of horizon seemed to
have been
created um as far as that was concerned
that would have been disastrous and so
what we wanted to do was demonstrate
that it
was um robust and there was no covering
this up you as far as disclosure is
concerned we have always advised
disclosure
could we have on screen please P 001
43377 starting please towards the bottom
of this
page a little further down please this
is the email from Andy cash uh sending
your advice to John El Singh on the 11th
of July
2012 he says he encloses advice from
Harry Boer I know it will be unpalatable
but for what it may be worth I share his
view in the instant case our response
must be dependent on time scales for
completion of the inspection we are only
just beginning to see these issues
raised by defense elicits and the sooner
we grasp the problem the better if you
want to do more if you want any more do
you call otherwise I will await the
outcome of your consultations before
responding to the defense
and then going further up
please we can see the email above that
in the chain the email from John eling
to Andy cash copied to Susan kryon and
Mr Flemington dated the 16th of July
2012 and Mr Singh says this Andy thank
you I agree defense will approach to
stay the prosecution until the review by
second site is
completed will become increasingly
common post office view is that such an
approach be resisted review to be
conducted is limited in scope in few and
isolated cases second site would work
with a number of MPS to at present to
review cases that have been raised by
their constituents second site’s
appointment is presently being agreed
with the MPS and justice for sub
postmasters there is no legal or
forensic grounds to argue defendants
will not get Fair trial or abuse of
process there is no reason to justify
the case being stayed the fact that
there review has being carried out is
not an acknowledgement that there is an
issue with Horizon the system working
properly and is being used up and down
the country when the system has been
challenged in Criminal Courts has been
successfully defended there is no
mileage in this position but is in fact
superficial uh this was a clear view
being expressed by Mr Singh that the
post office would not agree to stay
relevant prosecutions would you agree
yes and going up to the top of the page
we can see you were copied into Mr
Cash’s
response and Mr Cash says thanks for
this do we take it that we resist
defense requests in the terms of your
email I would like formal confirmation
bearing in mind the view taken by
Council if further consultation with
Harry or otherwise would assist please
let me know I will need to reply to Kim
Wy solicitors this
week did you understand these to be your
instructions that you should resist
requests for a stay from the defense
well as I said I I I wasn’t instructed
in in any of these cases did you
understand those to be cartright King’s
instructions from this email it seems
Seems fairly clear
yeah in respect of Mr sing’s comments on
your advice more generally you say in
your statement at paragraph 50 that you
thought Mr Singh was sometime somewhat
over optimistic as to the limited effect
of commissioning the second site review
can you explain please why you say that
well he he thought that the the second
site review was going to be limited I
didn’t did you consider at the time that
Mr Singh was minimizing the significance
of second sight’s
instruction um I don’t think I gave it
that amount of thought but actually if I
if I had addressed it yes I suspect that
would have been my view
at that time did you have any reason to
think that Mr Singh was not being fully
Frank with you about whether there was
an issue with the Horizon system at that
stage no I had no reason to believe
it you say in your statement that you
were told by Andy cash that the post
office did not like your advice and that
you were not asked to advice formally on
the issue after that what were you told
about the reason why the post office did
not like your advice I Andy cash just it
was a throwaway comment from Andy cash
that they’d seen they’d seen my advice
and didn’t like
it I’d like to turn please to the
generic Gareth Jenkins statement which
was produced following the July 2012
advice could we have on screen please
p001 41416
this top email is from you to John El
Singh copied to Andy cash and entitled
Horizon Integrity pro project so
scrolling down a little we don’t see the
sender at the top but we do see Harry at
the bottom
there it is responding to the email
below from John El Singh dated the 6th
of August 2012 can we scroll down to
that thank
you his email is to you copied to Mr
Flemington and he says
this Harry it was good to chat with you
I confirm that Helen Rose has been given
the task to gather the data please find
her email and spreadsheet it would be
useful at this stage if you could look
at what information Helen has provided
and advice accordingly in Readiness to
instruct an expert as part of providing
an advanced pack
disclosure below that is an email from
Helen Rose explaining where her work
pulling together information relating to
cases in which Horizon issue issues have
been
raised and going back up please to the
top of the first page to your remail
and you say this appears to be what we
want hopefully Helen will confirm that
the Horizon system has never been
successfully challenged I have yet to
see any signs of experts briefed on
behalf of the defense when she has
completed her exercise she should
prepare a summary of those cases where
there is a proper attack on the system
rather than a gripe that the system is
at fault although she should record
these cases so that we can say that they
have been kept under review they will
become more numerous as the bandwagon
picks up speed the expert will need to
address the report to the following
issues and you set out four
points a description of the Horizon
system in layman’s terms so that a jury
can understand what it is and what it it
what it does second a declaration that
it has yet to be attacked
successfully third a summary of the
basic attacks made on the system
concentrating on any expert reports
served in past cases is if there are
none then state that no expert has yet
been found by any defense team civil or
criminal to attack the system at the
moment there seems to be little more
than griping by defendants that the
system must be at fault without saying
how and fourth plainly like all
accounting systems there is room for
human error keying in wrong amounts Etc
but the experts should be able to state
that innocent human error is unlikely to
produce the types of discrepancies of
many thousands of
pounds
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feel very B like that’s
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that probably
can’t weally
yeah unfortunately it’s hard to have to
stay outside you can come in
once aot a lot yeah if you up there that
should be a problem
you’re just walking
through
mean they’re building these
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like it’s very easy for us to they’re
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why did this and it have
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yeah I think Ed um
Kei yes always press conference scrum
whatever he would pick his camera up
yeah like a
drone
realiz yes
that’s many bring
I
don’t no
just okay just ring you
[Applause]
I’m a great
I was fascinated that I’ve
always
sh very interesting
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okay so everybody decided here yeah
okay yeah I think we’ll be looking
at 3 minutes something like that yeah
thanks thank you
sorry guys just to clarify that it’s
going to be AC Louis R from the Met
police um Jaz at who’s the leader
of also got spokes
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IM
that’s
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coming want position to Launch
London Bridge where the office
is yeah the time
no I’m
sorry us here today and I’d like to
update you with some further details
following the terrible incident we saw
unfold here
we’re also thinking of the two members
of the public who were injured as well
as Brave officers who were stabbed
during this incident the 36-year-old man
arrested at the scene is currently in
hospital having suffered injuries when
his van collided with the building he
has been arrested on suspicion of murder
at this time given his injuries we have
been unable to interview him we know
there is speculation about his
background including police contact with
him and despite urgent and extensive
checks today we have found no trace of a
prior incident involving him so far but
we will of course continue to make those
inquiries as a matter of urgency we’re
trying to understand exactly what
happened and why this was and is a fast
moving and complex incident in
investigation and it will take us some
time to establish the facts this will be
our priority in the coming
days with the suspect in custody we are
satisfied there is no threat to the
wider Community but this is an incident
which has clearly shocked everyone and
over the coming days you will see a
significant police presence in this area
and will be remaining here increasing
our patrols and ensuring the community
are safe and supported please speak to
our
officers we are really Keen to speak to
anyone who witnessed this incident or
has relevant information and would ask
that they come forward as soon as
possible we are turning our Focus to The
Wider community and in particular how
the incident has impacted young people
we’ve set up a team of local officers
specifically to respond to local
community concerns concerns and finally
I would like to take this opportunity to
ask people to think very carefully about
what they post on social media there are
some graphic images circulating online
and people should consider the impact of
those on the families and those most
closely affected by this incident thank
you good afternoon I want to begin by
saying on behalf of the London Ambulance
Service that our thoughts are with all
those impacted by this morning’s
incident and their
families this morning we began to
receive 999 calls to our control room
suggesting there had been a stabbing in
the vicinity of heel underground station
we dispatched multiple resources
including ambulance Crews specialist
Critical Care paramedics and London’s
air ambulance we declared a significant
incident and set up a dedicated
operations center this allowed us to use
our other control rooms to continue to
respond to the rest of London London
Ambulance Service worked hard to
ensure or taking all of them to hospital
sadly despite the very best efforts of
our teams a 14-year-old boy has died at
hospital I’d like to pay tribute to Las
colleagues who attended this scene at
risk to themselves and to the courage of
the police officers injured while
protecting the public I’d also like to
thank all our emergency service
colleagues who worked alongside us as we
responded to this incident once again
our thoughts are with the families of
those who have been hurt and on behalf
of everyone at the London Ambulance
Service we send our deepest condolences
to the friends and family of the young
boy who has sadly
died I’d like to start by saying that
the thought of everyone at London fire
brigade are with all those affected by
this terrible incident today
particularly the family of those of the
young person who has died and those who
have been injured firefighters were
mobilized early this morning to assist
police and London Ambulance Service
colleagues at an incident near heot
Underground Station Crews were
immediately deployed to provide rescue
response and assist the emergency
service Partners in dealing with this
incident we will continue to provide our
emergency service colleagues and the
heok community with our service at this
time
I speak on behalf of Redbridge
Council and of course our thoughts our
prayers our hearts go out to those
affected by this tragic event this
morning where four people are still in
hospital injured and
tragically one lad is no longer with us
today I I also want to thank the
officers of the three services standing
next to me the police the London
Ambulance Service the fire
brigade who
heroically stopped further tragedy from
happening their quick response and
putting themselves In Harm’s Way to stop
further tragedy from
occurring it’s through their quick
thinking that
they have managed to salvage something
out of today and of
course we as a council will continue to
support the three Emergency Services we
will continue to support the The Wider
heal community in the coming weeks and
months we’re a strong knit Community
very close-knit and we will continue to
work with our community cohesion work
here and we will be there for our
residents our
neighbors as this goes into the future
thank
you I’ll now make a short statement as
the Member of Parliament for ilford
North
our whole Community will be devastated
by the heartbreaking news that a
14-year-old boy was killed in the
horrific sword attack in heot this
morning that saw four others injured
including two metropolitan police
officers I can’t imagine what that Poor
Boy’s family are going through and they
have my deepest heartfelt condolences
and I know the thoughts and prayers not
just of this community but our whole
country my prayers are also with the
other VI victims of this horrific attack
and their loved ones I particularly want
to thank the emergency services for
their courageous response in particular
the heroic metropolitan police officers
who put themselves In Harm’s Way to
protect others they are the best of us
and I know the injuries sustained by the
police officers involved will have
really affected our whole metch poan
police force so I want to thank all of
those officers who are very visible in
our community today
I also know there’ll be widespread fear
and alarm in our community but the
police have made an arrest and are not
looking for any other suspects I’m
grateful to the police for their visible
and reassuring presence in heel today
and their commitment to an ongoing
presence in the coming days I came here
this afternoon straight from a meeting
with the mayor of London in ilford the
leader of the London burough of
Redbridge and have been in regular
contact with the Metropolitan Police
throughout the day and will keep local
residents up dated as best I can our
community deserves answers about what
happened it is vital that we give the
police space to do their work anyone
with any information or footage should
provide this directly to the police fire
101 and I would urge people to refrain
from speculating or posting footage on
social media while we wait for the facts
to emerge thank you very much
[Applause]
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that’s few more
[Applause]
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Harry Bowyer, a barrister and former employee of Cartwright King Solicitors, is due to give evidence at the Post Office inquiry today.

He wrote a three-page document for the Post Office in 2012 addressing a case in which a sub-postmistress had blamed a £38,000 shortfall on the Horizon system.

Mr Bowyer’s evidence will follow that of Hugh Flemington, a former Head of Legal at the Post Office.

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