Post Office inquiry: Solicitor who helped prosecute postmasters gives evidence

Post Office inquiry: Solicitor who helped prosecute postmasters gives evidence

e e e e e e e e e e e e good morning sir are the picture and sound working as they should yes um sir just a reminder that we have a fire alarm at 10:00 um if you’re content then we’ll just stay silent for that alarm of course yes thank you sir may we please continue with Mr boer’s evidence yes good morning Mr Boer um when we adjourned yesterday I was coming to the cartright king review excellent uh I haven’t got my statement in front of me let’s see if we can get that sorted that’s perfect thank you very much could we have on screen please paragraph 68 of Mr B’s statement that’s page 16 you describ the review process uh here in this way you say in Broad terms the process operated by the relevant files being subjected to a first sift this was carried out by various solicitors at K wght King including Martin Smith and Andrew bols and those cases that passed the first sift criteria was subjected to a second sift which was conducted by Council initially the only Council involved with Simon Clark and myself but later Council from the Independent bar were instructed the operation was conducted from the cartright King Darby offices to give easy access to the files if disclosure was required we were advising post office limited to disclose the second site interim report and the Helen Rose report just picking up on the last sentence there that where disclosure was required you were advising the post office to disclose both second s sites interim report and the Helen Rose report you may have seen from the papers that there are a number of cases on which you advised where your advice covered the interim second site report and advised that should be disclosed but did not mention the Helen Rose report or advise its disclosure um so just taking an example and the case of Allison Henderson um that’s the case you address at paragraph 82 of your statement and the advice if we can have it on screen please is [Music] p002 94503 you can see that’s the case of Allison Henderson and going please to page three under discussion if we can just give Mr berer a moment just to look as we scroll down that discussion section and then over the page to the conclusion can you see that the second site interim report is addressed and the advice to disclose it but there’s no reference here to the Helen Rose report can you help with why in some cases only the second site interim report was being disclosed and not the Helen Rose report I’m afraid I I I can’t recall them Case by case basis would there be any type of case where one but not the other would be disclosable I think there were I think in some of Simon Clark’s advices he he actually specifically disclosed one and not the other could we have on screen please p001 uh 98128 this is your advice in the case of Kathleen Crane and you address this at paragraph 79 of your statement if you want to to to see that yes this was a horizon Legacy case I’m going to page three please paragraph nine you say this this is a pre Horizon online case the second site interim report deals largely with Horizon online we have nothing to disclose that directly rates relates to the pre Horizon online cases if this was a case where the allegation was one of theft or the defendant was sentenced on the basis that she had appropriate the money the position might well have been different to what extent if at all did you consider that Legacy Horizon cases might attract disclosure of the second site report well I I I I I I think we did disclose some of the Legacy cases um well we can come to that I think you’ve quite recently seen a copy of your advice in the case of Peter hom is that right do you recall yes um and if we can have that on screen please it’s p 0029 4518 we can see from the title here that this was also a preh horizon online case your advice is the 4th of September 2014 and going to the discussion on page three paragraph 10 please you say this is an unexplained loss case where the defendant states that he was covering up losses that had occurred for reasons out with his knowledge there is no danger of the defendant’s conviction being found to be unsafe as he has admitted his guilt from the very first but he has been adamant that he did not take the money to the point of fighting and losing a ntin hearing his explanations as to the possible loss relate to possible thefts either by a member of staff or seemingly at the Newton hearing his his wife may well have been modified into an attack on the horizon system had he but had the material to mount it and then over the page please at 11 I doubt that an appeal against sentence will be mounted after any disclosure that we might make in this case as the sentence has been long served the reality is that the second site interim review deals in the main with Horizon online the syst that superseded Mr hux’s system but it did deal with the preh Horizon online issues and in my view had we had the material contained in the second site interim report at the time of the Newton hearing we would have served it on the defense and then the conclusion those instructed by Mr huum should be written to in order to make disclosure of the material contained in the second site interim report so in this in this case you advise can you help with why there was a different approach in this case to the preh Horizon online case and whether there was any particular principle that was being applied at the time I I I can’t help as my my thought processes at the time it’s 10 years ago but was there a common position among those at cartright King initially you and Simon Clark reviewing cases on whether the second site report and the Helen Rose report should be disclosed in Horizon and Legacy cases uh I don’t think there was was a position we were disclosing it in in in some Legacy cases um do you think there should have been a principled approach to that well looking looking back um I think we we we we should have had a a a common view you have to remember that um the review process was looked at twice by Brian Alman and found to be um uh robust both in his interim review and and his his his other review and he looked at some 31 of these report the the these advices so at the time we thought we were doing it right U I can see there’s an awful lot of these documents with what happened subsequently because at at this particular time this is after the second site review came in and said that the system was robust sorry they’ found uh no no evidence of systemic failure in it it was only when the Civil Case came up in 2019 when Mr Justice Fraser found considerably more than we were aware at at the time that um the um say the totality of what Horizon was doing was actually made available to us so at this at this particular time um you know we we thought that what we were doing was right and we were confirmed in that because our advices were being reviewed thank you that document can come down now thinking about another pre Horizon online case we looked at uh some correspondents yesterday about the draft Gareth Jenkins statement and particularly the uh a amendment that you made deleting the case specific references that were in that statement which included his involvement in the Seaman misra case do you remember that I remember that yes it was your view at the time that Mr Jenkins evidence could not be relied upon once the interim second site report came out and um following that did you give any consideration to whether SEMA misra should be told in clear terms that the expert witness in her trial was in your view discredited well I I didn’t review sea mis’s case um but um I think my view would have been it should have been disclosed when you were reviewing the cases that you were did you notice any patterns of sub postmasters raising unexplained losses and challenges to Horizon no um I I think I said in my statement one one one of the problems was that the allegations against sub post Masters were often very different we we had allegations of people taking money directly from the post office till and there’s one one case where they were allegedly according to one of the other Witnesses paying their staff directly from SOS M spill other other cases we had people who pleaded guilty and admitted that they were paying off the retail side of their business from post office funds in the hope they repay it we had other cases where people were actually when people wanted to withdraw money they were typing in um the their PIN numbers and um it would fail first of all and then they would type it in again and get the funds and the allegation was that the first one would be pocketed by the sub postmaster so we were dealing with a whole whole different type of offending and so yes there were cases where people were alleged to be short on on on on on on their funds but there were other types of offending as well and so what we were looking at didn’t fit a single Horizon bug now obviously now we know that there are several types of horizon bug but that simply wasn’t our state of knowledge at the time when we were reviewing it and you the second site report came in and said there was nothing systemic is it right that you would occasionally attend the weekly Hub meetings at later bi-weekly meetings on behalf of cartright King very occasionally I I would do it when either Andrew b or Martin Smith weren’t available and roughly how many times did you attend can you recall I’d imagine you could count it on one hand did you ever hear of any issues raised at those meetings that you thought required post conviction disclosure or further disclosure review I don’t think so no could we have on screen please paragraph 108 of Mr boa’s statement please that’s page 31 apologies if I given the wrong page reference there 108 paragraph 180 is page 23 yes thank you sir my apologies and bear with me for just a moment it’s page 31 it’s it’s paragraph 155 please you say here the reality is that there may be grounds to criticize the way that K Wright King conducted the post office limited prosecutions however they did fulfill their role as external lawyers in calling to a hold the prosecutions attention please attention please e e just rereading that sentence and that first sentence the reality is that there may be grounds to criticize the way that cart Wright King conducted the post office limited prosecutions did you recognize at the time the cartright king review was set up that there may be grounds to criticize the way that cartright King conducted post office prosecutions yes I I I I I think when I was reviewing cases and when I was actually speaking to the people more involved uh it became apparent as to how it was being done and um yes so I had concerns and at what point into the process did you have concerns um really during during the review the siif process when when we were reviewing cases you have to remember we were reviewing a lot of cases that weren’t cartright King but they went back quite a long time at the time did you recognize the risks inherent in cartright King and this phrase has been used a number of times marking its own homework well yes because that that that that was addressed at a very early Point um especially we we had a conference with Brian Alman in his Chambers in September I think 2013 and that that point was was addressed there and then um but I think it was felt that a the cartright king barristers actually hadn’t prosecuted the cases themselves uh and B it would this was the fastest way of getting the job done uh that’s that statement can come down now thank you I’d like to ask you next please about what happened in relation to cases in Scotland and Northern Ireland after the publication of the second site interim report can you help with what was done by the post office or by cartright King if anything to inform the crown office and procurator fiscal service in Scotland and the public prosecution service in Northern Ireland that second site had been instructed to conduct their review in 2012 I I can’t no there are documents the inquiry has to suggest that Martin Smith from cartright King was involved in discussions with the crown office and procurator fiscal service and BTO solicitors to whom you referred yesterday about the interim second site report towards the end of July 2013 yes there are also documents to suggest that Simon Clark and Martin Smith attended meetings with BTO solicitors and the crown office and procurator fiscal service about Horizon in September 2013 did you have any involvement in those discussions no I I I I had no involvement in those discussions they they they they did certainly at least one trip possibly more to Scotland and BTO um I did speak to BTO on a couple of things um I think there’s some email correspondence between me and one of their solicitors um but I didn’t actually have any direct uh influence on the the Scottish prosecutions was there any consideration given to the impact of the interim second site report on dislo disclosure GTs on prosecutors in Scotland and Northern Ireland of a similar review exercise taking place in Scotland or Northern Ireland I I I wasn’t does it follow from your answers that you can’t help with whether cart Wright King notified the crown office and procurator fiscal service or the public prosecution service in Northern Ireland of its review exercise I I don’t know in 2004 14 333 520 this is an email chain which you’re not part of but we see your involvement in the case is referred to in this top email from John Elon dated the 8th of October 2014 um before we at that uh just to put this in context and look at some of the the one of the earlier emails if we can look at page two please about 2third of the way down the page there is an email dated the 19th of September 2014 from David Oliver to Chris oard copied to John El Singh among others and it says this subject durang case Chris I wanted to bring one non- scheme case to your attention and check you are content with the suggested approach the case in question related to Mrs Duran deceased the case was one of the original cases raised by MPS but did not qual did not apply for the scheme it is an old case 2004 and relates to an unsuccessful prosecution brought by the police in Scotland Mr Duran has written to Paula raising this case case and criticizing the post office’s handling of it and his MP has with James alnot sought a meeting with Paula to discuss the case which James is chasing a response on the case has been looked into by the crown office in Scotland and post office has been in contact with them via BTO johnell has previously dealt with this last correspondents I’ve been able to find internally 14th of April then there’s proposed next steps and we can see over the page johnell to contact BTO for any further and more recent correspondence subject to that contact Crown office to understand their views on the case and what has been provided to Mr Duran I will draft a holding reply to G James so that sets out some of the background to the case does this help refresh your memory at all as to how cases in Scotland were being looked at or review to the references in that email no I’m afraid I’m afraid it doesn’t I I I I had very little contact with going then to page one John El sing’s email of the 8th of October 2014 he says Belinda and Angela as you know Council Harry Boer of cartright King reviewed the information which Scottish police were able to provide in this case it would appear this was limited and most probably not all the information that was provided to the procurator fiscal this was not a poll investigation however if it is now to be investigated under ba it is my my view and advice that any findings and further Evidence discovered should be supplied to Harry boa in order that he may review it this would ensure Paul has the protection of being able to say the findings have been independently considered by external senior Barrister was this common John eling asking you to take a look at individual cases there would be occasion there would be occasions he’d ask me to look at cases there’ be occasions he would ask me uh for advice on little issues yes and this to appears to be on on a sort of ad hoc basis rather than as part of the review process is that right yes I mean we we we got contacted if there questions outside the review question process was it common for you to be asked to look at Scottish cases well not terribly because of course Scottish law is different and I’m not qualified did you feel able to advise on this Scottish case u i I don’t recall this Scottish case but the email suggests that the information was limited were you aware that John El Singh saw the purpose of asking you to look at cases in this way as being that the post office would have the protection of being able to say it had been reviewed by an external senior Barrister um I I I I I I wasn’t aware but I I I would have been able to guess it yes that can come down thank you at paragraphs paragraph 106 of your statement you refer to cartright King’s involvement in drafting a new prosecution policy for the Post Office recognizing that you say you had little to do with that side of things what was your understanding of the policy in terms of its geographical remit particularly thinking about Scotland and Northern Ireland uh I would have assumed that Simon would have been drafting it for England and Wales can you help at all with whether the procedure in Scotland in Northern Ireland was viewed in the context of possible reform of post office limited’s prosecution policy was it considered at all uh well I I I I don’t think I had any role in in that particular review process could we have on screen please P 00333 527 the top two emails here are from April 2015 and are between you and Laura Irvin who was a solicitor with BTO solicitors in Scotland the external firm who advised on post office cases um it appears from your email to just scrolling down a little please your email there Laura at the top Harry Bayer at the bottom it appears from this that you were looking after Martin Smith’s emails whilst he was on holiday and that was why you were in email correspondence with her is that right that would be right M and starting with Miss Miss Irvin’s email of the 26th of March 2015 please at the bottom of the page her email to Martin Smith she discusses a Scottish case and appears to be trying to establish what the progress was on a horizon expert report is this a reference to the attempts which were being made to find another expert yes and then at the penultimate paragraph of her email she says I have been provided with various pieces of information about the progress with the Horizon expert report mostly by you but that the last I heard from John Scott was that there was a report from deits that may the need for an expert report however I got the impression from you yesterday that it didn’t take all the boxes it would appear from this that BTO solicitors had not been provided with the 2014 deoe report would you agree on a read well it looks like it yes your reply is above and you say Laura Martin has me looking after the emails the deoe report does not tick all the boxes and we would prefer to be given a clean bill by the experts who are in the process of being instructed they will be in no position to report in the time scale of this case two points arising from this please first you don’t mention here your reaction of shock to the revelations in the Dee report about remote access do you no can you help with whether the issue that issue of remote access was raised with BTO solicitors following cartright King’s receipt of the deloe report I I don’t know because the the main contact between um BTO was Martin you can see from this email I I was only stepping in while he was on a holiday second you appear to be suggesting that any expert report would be giving Horizon a clean bill of health was that your view at the time well that’s what we thought was going to happen yes why were you so sure of that um well again it was the second site report um with no systemic problems um and so as far as their report was concerned we thought we would get an expert report that would show that it was fundamentally sound and the evidence could be relied on if the expert report had come back and said it couldn’t be relied on then that would have been the end of Prosecuting that can come down now thank you in an email chain we looked at yesterday from August 2012 you referred to cases raising Horizon issues being likely to become more numerous as the bandwagon picks up speed why did you use that expression bandwagon I I I think the inquir is attaching pejorative terms to it um you there are popular themes in criminal law and popular defenses that arise there have been bandwagons that I’ve joined when I’ve seen that a defense seem seems to be working I will I will I will leap upon it um but no as far as this was concerned when Horizon it became um an object uh that looked as though it was being challenged more and more people would actually take a look at it when they got a post office case in it’s common sense but I I don’t see that the phrase bandwagon is in itself pejorative we needn’t go to the documents unless you wish to but bandwagon was an expression which was used by you in two advices relating to post office prosecutions yes given after the publication of the interim second site report you referred yesterday to the interim second site report being a shock moment yes did it not therefore make you more wary about making the kind of assumptions which underpin the use of the language Horizon bandwagon I I I don’t think so no because you can join a bandwagon that is perfectly proper that there are occasions when the reason people are all heading in the same direction is that they’ve got a valid cause but as I said I I don’t find the term bandwagon perjorative there is one further document from yesterday I’d like to go back to briefly please for a point of clarification the reference is p0029 3276 this is the 13th of January 2020 letter about continuing the relationship between W King and post office limited going to page two please what we looked at yesterday was that par that point three with Reflections on past uh setup and relationship but but just looking down a little to the proposal here the proposal being made in January 2020 was that cartright king would provide post office limited with there’s a number of things things listed there but at point four the designated on call lawyer shall be Simon Clark Martin Smith or Harry Bayer but most likely Simon Clark can you help with why after you left cartri King some four years afterwards you were being put forward as a potential onall lawyer uh I I I I wasn’t sure as to um what was going on here what happened after we left was effectively we took the post office Department U myself Martin and Simon um and so antih used to continue to call us up to see what was going on and post office wanted this facility um by this stage uh we weren’t terribly keen on doing it because of course we’d had the civil case um and seen Mr Justice Fraser’s um judgments in the two um and the two issues that he decided did this proposal come to fruition no that can come down now thank you just one final point from me you’ve said in your statement at paragraph 65 that the post office was an enormous client even for a firm the size of cartright King as you sit here today do you think that the importance of post office as a client to can’t write King influenced whether consciously or subconsciously the way you approached your advice and your ability to advise impartially and independently uh yes I think it it it it must have it went well when we actually pulled the plug on the prosecutions after the Clark advice um it it was worrying as to how our our bosses a car right king would take it um and it was you know it was a big moment telling post office that they could not rely on their expert and they should they should stop Prosecuting so those are all the questions that I have there are some questions from core participants those I know about are um Mr Henry Mr Maloney and M Oliver um there maybe and Mr Jacob as well and I think that’s it um in terms of order if we can start with Mr Henry please sir then Mr Jacob then Mr Maloney and then miss Oliver is that acceptable to you yes of course thank you sir uh Mr buer so in a nutshell you weren’t Happ happy with Mr jenkins’s Independence say you decided to draft a generic PR prosecution template for him no that’s not true well you were trying you said to be fair to the defense and just coming to an expression that you used yesterday that this statement would give the defense a windmill to Tilt at tilting at windmills in contemporary Parliament Mr Bayer is typically understood as attacking imaginary enemies or evils is that what you thought the defense were doing that Horizon was impregnable and that their complaints were imaginary well at the time we thought and our instructions were that Horizon was robust so is the answer to my question yes no the answer to your question is as far as the um statement was concerned it was meant to give uh something that the defense could a take a look at the previous uh cases that where the challenges were put in so that they actually had some somewhere to go so they didn’t have to start from scratch your question is unfair no it’s not unfair it’s entirely Fair because you use the Expression tilting at windmills and I suggest that it reflects your overconfidence if I can put it neutrally your overconfident approach to the issue well we disagree the that uh the defense were on some sort of quixotic unrealistic and ineffectual exercise of challenging how dare they The Horizon system well as I said I what the idea was to actually give them an opportunity to make something of it at the time we had nothing to suggest that the Horizon system had any faults to it now I I can understand where where you’re coming from because you’re looking presume to understand anything from my point of view Mr barer let’s go on to a document which is uh P0 96 997 no need to get it up you’ll remember it it was put to you yesterday but you refer to defense inquiries as a fishing Expedition um was did that reflect your view about defense requests for disclosure in relation to Horizon some of them certainly and uh your prediction um 2nd of October 2012 my view is that most challenges to the Horizon system should now vanish away before the trial uh were you taking Mr berer effectively a blinker approach and I can I can see that that particular um comment hasn’t aged well but no I don’t think so right can we turn pleas please to P0 6687 please this is your response to Mr alman’s review and could we go to page three of this document and let’s concentrate on ran 7 um so uh whilst this system is still in its infancy there are issues that should be dealt with as soon as possible a an expert to replace Gareth Jenkins must be identified and instructed without delay as almost all of our cases depend on the Integrity of horizon even if only to the Quantum of thefts we need to have an expert we need to have an expert to say that the system is sound and whilst there are and have been glitches the system and its product are sound does that not show that you the intention was not for the expert to be objective but rather to reach the conclusion instructed by cartri King well no I I don’t think so we need to have an expert to say that the system is is sound and that whilst there are and have been glitches the system and its product are sound time is of the essence as there are cases in the system that will be compromised without such evidence this is old ground so I will not go over it again and this was essentially was it not um the idea that the expert inevitably would say that the system was robust uh a a a d dous assumption on your part Mr Bayer well if if the experts said the um system wasn’t robust it would have created problems for us and we would have we would have um ceased to prosecute but at at at the time our instructions were that it was robust and second site and found nothing systemic but they had found disturbing issues concerning two bugs and also other deficiencies in the way in which uh the postmaster’s complaints have been dealt with could we go to letter to to to subparagraph B the product of the Hub meeting should be collated and assessed much of it is raw rumor but it needs to be investigated so that we can dismiss it as that again does this not reveal raw rumor investigated so that we can dismiss it does this not reveal um institutional bias on your part too close in alignment with your professional and lay client well I don’t think it does no other material May well point to genuine flaws in either the Horizon system or the use of it by post office staff and needs to be addressed both to fix the flaws and be assessed as to its potential disclos ability how could flaws in the Horizon system genuine flaws be only regarded by you as potentially disclosable well again I’m this particular um paragraph shows that I’m looking at the disclos ability said you think that it ought to have been slightly more emphatic or would that not have been unpalatable to the client if there are genuine flaws they must be disclosed yes you you will be right right so were you trying to Sugar the pill no I’m afraid if you point at clumsy English it doesn’t mean that my intent was to actually make things palatable to them to the lake l m Miss price has taken you today to a Scottish case where you were trusted by John Al Singh to review it um the case was called Doran she faced embezzlement charges um of over £7,000 and was a acquitted and she said all she done was to follow instructions on the screen uh in other words she was not dishonest she was only following the instructions that Horizon had given her um do you remember the case now I I don’t remember it no well I don’t want to Ambush you but it but it seems you advised on non-disclosure you may well be right I say it from you um let let me just ask you now to just the in the immed mediation scheme and disclosure issues um do you accept that quite a lot and the document I’m going to take you to doesn’t actually refer to this but a number of the issues in the mediation scheme a substantial minority of these applications contain complaints about the behavior of um post office investigators yes uh and um you were against the uh reports that those investigators had compiled being disclosed weren’t you uh I was against some of the working documents being disclosed yes right well let’s go to P 00301 1427 while that’s um being brought up just so that I can clear my mind that the door the ACT actual criminal Doran case was long before your involvement as I understand it and you became involved because of the potential review of that case in the mediation scheme is that correct uh I think so it was a Scottish case I’ve got no recollection of it no I I appreciate that but given that you were involvement was I think 2014 and the actual case was about 10 years before yeah seems to be the only logical explanation well I’m not sure whether it’s for the mediation scheme or whether for some sort of Scottish review I I don’t all right so so it’s either the mediation or some review occurring in Scotland yes fine all right thank you sir wh while that that’s been brought up on the screen um P 00301 1427 but the fact that somebody was being tried on Horizon data the case was brought on Horizon data the charge was dishonesty and they had been acquitted did that not strike you as disclosable in other cases um I don’t think I considered it I don’t I don’t know right um so um can we uh go to um your email in this email chain please um and uh we start off with uh I agree with Harry’s advice can we scroll down please and uh can we scroll further down please and then we have that yes uh Roman 2 please this is this is this is your advice um the views of the prosecuting lawyers at an early stage of the proceedings on the strengths weaknesses of our case being exposed to defendants and their defense teams these were your concerns and that was the concern that I’ve just read out this could create problems should we recommence prosecutions in extreme instances we could become Witnesses in our own cases and obvious example is the case of chowri Wasim abas in which neither the post office investigators nor the poll systems cover themselves in glory I’m sure that our mutual client P does not want a document in the public domain that provides a root map to how to attack us where we are most sensitive m b isn’t that precisely the purpose of disclosure under the cpia that the material might be capable of undermining the prosecution case or assisting the defense absolutely right so why did you say I’m sure that our mutual client does not want a document in the public domain that provides a root map to attack us where we’re most sensitive because as far as that’s concerned it should be considered in the context of each case right and can I just ask you to to consider this The Horizon bandwagon and you say that that wasn’t pejorative and so be it but those two advices that Miss price referred you to were dated the 2nd of September 2013 and the 5th of September 2013 here we are involved in the mediation scheme do these views not um reveal a somewhat jaist approach which might have affected the way in which you were performing the sift um I don’t think so no well my conclusion um are are are two matters um the first is and you been they’re both concerning clients represented by Mrs hod Jones and Allen who instruct me one is uh Mrs Kathleen crane you reviewed her case in November 2013 and you stated in my opinion and we need take no more fur we need take no further action upon this file and so therefore the safety of her conviction was not reviewed as a result of that advice and she was only cleared in the court of appeal um in January of this year um having suffered years of anxiety um having of course lost her occupation and having to go into a caring profession where she was having to disclose her conviction of course to the disclosure and barring service um with every employment application um have have you read the Judgment in her case uh I’m not sure that I have 22 that they were satisfied that uh the post office was correct in conceding the matter and it and they continued to State this is indeed a horizon case in which the reliability of horizon data was essential to the prosecution and there was no independent evidence of the alleged or any actual loss and then they continue the applicant in interview explained why she had acted as she did and asked for the reliability of herizon to be investigated she and her husband paid the full sum said to be missing she was nonetheless prosecuted no relevant investigation was carried out and no disclosure was made of the known concerns about Horizon Mr B how on Earth did you come to the conclusion that no disclosure was merited in her case I’m I’m afraid I don’t know Mrs misra’s case which you were aware of but of course was dealt with I think by your colleague Simon Clark he was yeah she needed to be told in the clearest terms he would agree that the expert witness in her trial was discredited you would agree with that I would agree with that and yet that didn’t happen and she wasn’t even given what I suggest would have been the inadequate disclosure of merely the second site report of the Helen Rose report now I realize it wasn’t your case Mr Boer but you were part of the team Mr Henry I think he has said it should have been disclosed that’s good enough for me thank you sir those are my questions thank you I think we have uh Mr Jacob next is it thank you sir yes Mr berer I want to ask you some questions about the mediation scheme and um you’ve um uh set out in your um witness statement at par paragraphs 109 through to 140 um your involvement in the cartright king reviews yes of the uh mediation responses um perhaps we don’t need to um go to this but one of your responses in the case of Walters who was um one of our clients at uh paragraph 117 of your statement uh the response is dangers to post office Limited this case did not result in a prosecution or a conviction it is unlikely to affect any criminal cases conducted by pole past present or future unless some concession is made about the Integrity of horizon which from the robust poll response seems unlikely do you accept that it was C Ry King’s position to ensure that nothing came out of the mediations that could result in um damage to post off’s position that the Horizon system was a robust system or could lead sub postmasters to have any evidence upon which they could cast doubt on the Integrity of the Horizon system well as as as as far as we were concerned um obviously you’ve seen from the papers that my position was we didn’t want criminal yes defendants in that um but yes I mean as as as far as we didn’t want un unwarranted concessions to be made that the the um Horizon system may have been um may may may have not been robust because that was not what the evidence actually said at the time I I I concede totally from from our point of view looking at it from 2024 that has not aged well well exactly and um in uh in July 2012 you wrote your your advice in the case of Wy yes where effectively you said that post office was in a firefighting situation yes Fujitsu should consider themselves also to be in that position and that um to summarize there would be severe recriminations for the business if second site uncovered any systemic problems is that right uh yes so um what you were saying is don’t do anything that could um result in a concession being made that Horizon is not robust I I I can see see how you’re formulating the question but the intent was I didn’t want any un unwarranted concessions made that the system wasn’t robust and what’s an unwarranted concession a concession merely to make the mediation go more smoothly um are you aware um and I’ll give an example of a case of one of our clients Mr Peter Holloway he attended a mediation in November 2015 um presented his case to the post office Representatives with a mediator present he says the mediator told him there was a good chance that the post office would agree to settle his case and there might be a reasonably significant sum post office Representatives thought about it the mediator returned to Mr Holloway at 3:00 in the afternoon and said I don’t know what to say they’re refusing to even make you an offer uh the mediator told Mr Holloway that the post office represented atives had told him they’ hadd been sent to the mediation with instructions not to settle at all were you aware that post office representatives were attending mediations with instructions to maintain in the mediation that Horizon was robust and that there should be no settlement or if any settlement was made it was simply to be a token I wasn’t aware now are you aware um that anybody in cartright King advised that what you had advised in relation to um the um y Cas should feed through into the conduct of the mediations uh again um I I I my main role was to advise on various documents that were going forward to the mediation how the how the mediations were carried out we had no role in you understand of course um that um the function of Med mediation is that there should be some concession totally understand that and to an extent that’s part of the danger can I then move on to another topic I want to ask you about Brian Alman Casey and his terms of reference and we will need to uh put a document on the screen for that um it’s uh p0000 21981 just wait for it to come up um so here we have Mr ulman’s um observations um on his um terms of reference for um uh making a presentation in relation to the post office board can we scroll down please and can we scroll down to um to be so scroll down further right uh so B I understand that I’m to meet and report to the board and then um if we move to um scroll down further so point two on the efficacy of past prosecutions inv including the preparation and conduct of past prosecutions and then if we move down to uh footnote four the bottom of page three please and if if we could maybe highlight ah we’ve lost it footnote four bottom of page three thank you so he he Mr Alman says it is for poll and those instructing me to determine whether or not it is only the efficacy I.E effectiveness of past prosecutions Etc that I’m being asked to consider with the board or in fact the potential safety of past conviction following poll prosecutions I.E whether in my judgment the court of appeal is likely to think that the conviction is unsafe now this this follows on quite shortly from Simon Clark’s advice where he said that uh Gareth Jenkins the architect or one of the architects of the Horizon system his evidence was T and unreliable um did you think at this point that senior Council ought to be advising on the safety of the convictions in light of the the apocalyptic Revelations concerning Mr Jenkins well the the the as far as far as the convictions were concerned most of the convictions were guilty pleas and sorry I didn’t hear you I didn’t most were based on guilty pleas um and most were had admissions in interview to some sort of false accounting or or or or or whatever and the position at the time was as I said second site came back and they said that um there were no systemic faults in Horizon they produced the two bugs that they produced and so when we stopped the prosecutions it wasn’t on the basis that Horizon was unsafe because we didn’t know that it was unsafe we we we felt that nothing systemic had been found on it we stopped it because we felt that the um witness Gareth Jenkins was unreliable and so the the catastrophic findings later that Horizon had multiple bugs in it only really came to light in 2019 in the civil case in front of Mr Justice Fraser and certainly at this particular stage as as you know a guilty plea is is a very difficult thing to appeal in the court of appeal uh this case of course it happened because these cases were and I don’t dispute it at all these cases were an affront to Justice because people had false accounted because they was met with massive figures what about if it can be inferred is should it must been inferred from the GTH Jenkins position that there had been multiple failures of disclosure in numerous prosecutions over the years well there had been failures of disclosure um I’m sorry to intervene but but this started as a question about Mr Alton’s terms of reference with respect Mr Jacobs I don’t think Mr Boer is the person to ask about that Mr Alman was instructed I Believe by wble Bond Dickinson or whoever and very much um having an input from senior post office lawyers I don’t think Mr Boer was involved course he was I apologize but I don’t think he I I’ll I’ll move on to the next um document um which is p0000 soorry two P p0000 021 980 this is in relation to um the efficacy point and I just want your comment on this and I know that um that this isn’t an email that that you saw at the time but this is um wal Bon Dickinson responding to uh Mr alman’s um footnote and uh what is said here is uh please find attach two separate terms of reference for Brian Alman QC as a in response to his observations document which I also attach for EAS of reference please note that Paul needs to decide on the issue which he um asked to report to the board on the efficacy or safety of past prosecutions see footnote 4 page two which you’ve just gone to of Brian’s observations Simons and my view is that he shouldn’t report on the safety of past convictions for two reasons firstly this is likely to involve a more significant analysis of lots of cases thereby delaying his report and secondly and potentially blurs the boundary between ba and CK’s respective roles now you’ve said um in your evidence that um you thought that Bon Dickinson’s knowledge of the criminal law was somewhat sketchy is that right I that was my opinion at the time um what do you have to say um about the advice that um Bon Dickenson were giving post office in relation to Brian Alton’s query about whether he should be advising on safety um sorry what was my opinion then on yeah um I I I I wasn’t aware that he was being instructed at the time or they were considering him looking at the safety of the of the reviews um our our instructions in the SI review was not to look at the possible um um look at the um potential of appeals at the time it was just as to whether the stuff would be disclosable or not and do you think following the Simon Clark advice that post office in light of the potential for miscarriages of Justice ought to have sought advice on the safety of convictions as a matter of urgency I’m Sorry Miss I just don’t think this is appropriate for this witness these questions can be asked of the people who instructed Mr Alman thank you sir I’ll move on I don’t have any it’s it’s on y thank you I’m grateful to the stenographer um Mr Boer I’m going to ask you about Jillian Howard um and uh she’s one of the 78 core repres core participants I represent all of whom were Prosecuting and convicted and all of whom had the convictions cred and I’m going to ask you about disclosure in her case and why you didn’t ADV disclosure on review but I’ll take you to your advice in doing so so so that you can see why you didn’t disclose which will hopefully help when you’re answering questions okay yeah now she falls into the category of most cases that you just described to Mr Jacobs that is to say a guilty plea and an admission to false accounting yes she was interviewed under caution on the 8th of June 2010 following an audit that revealed a shortfall of some just shy of 4 £6,000 and then so that’s the 8th of June 2010 for the interview and then by letter to post office on the 7th of April 2011 and that date is important Mrs Howard offered a guilty plea on a proposed agreed basis does this jog your memory as I I I I I I remember the case I discussed par 75 I’ll shortly take it to your advice but just to finish the background details as it were to start with she pleed guilty on the 26th of April 2011 having indic ated or authored the agreed basis of plea on the 7th of April of 2011 and on the 26th of May she was sentence to a six-month Community sentence yes um and uh just for completeness at the court of appeal post office accepted it was an explained shortfall case evidence from horiz essential to Mrs Howard’s case no arq data was obtained at the time of the criminal proceedings no evidence to corroborate The Horizon evidence no investigation into the matters raised by Mrs how in interview and no examination of the numerous calls that she’d made to the help line in fact she’d made 22 of course the help line saying that she was having real trouble balancing uh with Horizon and none of the other staff at the branch was interviewed and there was no proof of an natural loss so a paradigm Horizon case in many resp no I accept that indeed so could I ask that we look at your advice now which is poll 30 21207 I’m grateful and if we could go straight to the end to paragraph 27 and um there we go thank you where you say in conclusion in relation to this case Mr Boya this is an extremely worrying case it’s only through Good Fortune sensible prosecution Council and a sympathetic judge that we are not going to have to disclose material which would cause post office limited a great deal of embarrassment could we please go back up the page now to look at the specific circumstan of this case and I think back to paragraph 15 soorry and um yes and be above that please if you can go back to the previous page I’m sorry keep going and we we and just a slightly further please going up going up and go and going up and there we go um paragraph 10 thank you um so paragraph 10 relates how Mrs Howard um following the audit said she’d like to arrange a pace interview she was told a right she produced a type statement and article from the grosser magazine relating to glitches in the Horizon system uh and her prepared statement and note also complain of lack of support from post office and says that serious errors serious series of errors were made uh inference being she wasn’t properly trained but the contents of her interview are in the next um paragraph um she’s interviewed on the 8th of June read out a prepared statement said she’d not taken any money she used to help her husband with the cashing up she she’d experienced problems from 208 after her husband was taken ill she employed two staff um when her husband was Ill she struggled to balance the accounts from the outset she was never sure that she was completing the monthly balance correctly and simply putting the figures that Horizon displayed to balance she was aware that the figur she was entering were inflated and that the losses were increasing and to hide the Moun shortages she began to suppress business deposits from a local bus company um carrying on down um she felt that an employee might be responsible for the losses I won’t name the employee for obvious reasons course um she was concerned about her employees Sons visiting the shops to borrow money um and um she had less than a week’s notice about the transfer to Horizon online uh and um finally she was aware that what she was do doing was dishonest and had not financially benefit benefited from any of the missing money um so she and she expressed concerns about Horizon as the as the court of appeal noted if we could then go down to paragraph 13 which is just further down you find other considerations it became apparent and this is an email from Helen Dickinson dated the 10th of February 2011 and that date’s important because because it’s some two months before she enters a plea on the um in April 2011 after Mr and Mrs Howard were suspended that those who ran new Mill post office continued to employ the employee and also took on one of her sons the post office continue to suffer small unexplained losses including cash being taken from a charity box in the secure area it transpired that the employee had a key to the secure cure secure area that the new management run aware of and the employes son has admitted theft from the charity box and essentially what happened to that information that it was kept under review it wasn’t disclosed and there’s a green Post-It note attached to an email of 5th of April 2011 talking about scrapping the sensitive unused items um if we could go down further to paragraph 18 please the culmination of all of this is item 17 on the nonsensitive unused schedule dated 4th of APR ail 2011 served on the defense by letter on the 11th of April 2011 so that’s 4 days after the indication of the offer of an agreed basis of plea when in fact this information was available some two months before the agreed basis of plea there is an entry that reads email from new roles Personnel regarding incident at new Mill now that’s the email that refers to the thefts by um the employes son but it’s really quite a cryptic reference isn’t it yes for anybody looking at an unused schedule in those circumstances so Mrs Howard had pleaded guilty but she said in interview that she always felt she wasn’t completing the monthly balance correctly she’d inflate the figures to make them balance she brought an extract from the gr grosser which made her wonder if she was wholly responsible for the shortfall problems and money was going missing from the tills which could have been another employee uh or her giving credit which she should not have given was in fact what she said we know that in fact that information about the employees son was available two months before the agreed basis of plea was offered and the schedule reference in April uh just in fact after the agreed basis of plea was was offered uh was quite cryptic so um after that which Mrs Howard had said in interview should the material about the employees son not have been disclosed straight away as soon as it came into light two months before any offer of plea yes I think it should do the disclosure reasonably assisted Mrs Howard’s case in interview and supported her veracity no I I as I say in my statement I think I got this particular advice badly wrong thank you m Mr Bo indeed you do say that in your statement don’t you paragraph 75 but and I was going to go on to that but just before we get to that she was entitled to know that when she know that information when she was considering her plea and when she was being advised by her lawyers as to her wasn’t you’re absolutely right yeah um and and it should have been disclosed on consideration of the appeal as well shouldn’t it it should have been yes because it would have provided a basis for arguing that there was serious material non-disclosure well over and above the Horizon system yes absolutely yes now but you took the view that it’s my view that they could not possibly be an appeal against conviction based on the disclosure of the subsequent losses in the post office bearing in mind the in the admissions in interview and the basis of plea yes or that was for her to decide rather than you really as I said I think I I think I got this advice Ro thank you Mr Bo um can and also can I just ask you about the information about continuing unexplained small losses yes because they didn’t they didn’t stop at what the employee the employees son was doing did they they they were unexplained small losses which were not as it were only the theft by the employees son I can’t recall the details of the case that far but I’m I’m I’m sure you’re right if you say it but if they just if we can assume for these purposes that in fact they were unexplained small losses then they also would have assisted her case in interview wouldn’t they as to again I would have thought so yeah and and really that that should have been disclosed if they were unexplained small losses yes and indeed second site report might might well have been disclosed in those circumstances given that it had it had as it were highlighted the difficulties as as as I’ve told you and as I said in my statement I didn’t get this one right C can I ask you this and it’s important that I do ask you um was this material not disclosed because in fact yes it really would cause post office a great deal of embarrassment at a time when post office was already suffering a great deal of embarrassment uh I don’t think so no when you say you don’t think so no was this was this was it a fact you know either I don’t think subconscious Factor can operate it may have been subconscious but I mean I like to think I’m a straight edge as a prosecutor um and you know as I said what what what what overbore my mind in this particular one is that she was sentenced on her own basis that there was um she wasn’t responsible for the loss um and so therefore she was sentenced on her um police in her admissions in interview and her guilty police yeah but this material as you rightly concede now should have been disclosed I I certainly concede yes and finally just to expand slightly on a point Miss price asked at the end of her questions for you you were asked about the importance of the post office account to cartri King yes yeah you said yesterday that you were pleasantly surprised when cartri King management did not push back on your attempts to rectify the position following the revelations about Gareth Jenkins yes and even because you said even for a firm of the size of cartright King uh post office was an important account it was an important account yes one of the central aspects of that importance would it have been the amount of income the account generated for the management of cartri King it generated quite an income yes yeah and that’s an important consideration in these circumstances I I would have thought so yeah thank you very much Mr Boer Mr Boya can you remember whether not withstanding someone had pleaded guilty uh to false accounting you nonetheless decided that the um second site report uh should be disclosed um in this particular case I I I didn’t some cases I I appreciate that some some cases had on sorry some some some cases where they pleaded guilty I one was always aware that in these cases um there there was a certain amount of coercion on on a defendant um when when they entered their guilty pleas and so some of these cases where they raised Horizon as an issue uh in their interviews we did disclose the second side and and Helen Rose report so it wasn’t I I think in some of my cases I was too quick um to actually um not disclose when there were guilty pleas um um and uh full Admissions and interview but um yeah in in in in in in the main as I said we thought we were doing right at the time and we when our cases were reviewed they they they were found to be sound all right thank thank you Miss Oliver can you give me a prediction about how long you are likely to be because I’m conscious that transcriber has been going for about an hour and 20 minutes now yes sir I think probably about 5 10 minutes can I ask the transcriber whether she would prefer 5 to 10 minutes more and then a proper Break by which I mean at least 15 minutes or whether she wants a 10-minute break now it’s fine to finish um I I understand the trans transcriber is content to carry on uh and then have that break thank you well you’re usually very accurate with your estimates Miss Oliver so I’m confident that you will be on this occas thank you sir I’ll try and stick to it uh good morning Mr Bo I ask questions on behalf of Gareth Jenkins hello um I I want to ask you a little bit about the Simon Clark advice in the aftermath um in that advice as I’m sure you’re well aware at paragraph 37 Mr Clark advised that Mr Jenkins had not complied with his duties to the court the prosecution or the defense but at paragraph 38 he stated that the reasons as to why Mr J Lins failed to comply with this Duty are beyond the scope of this review do you remember that I I I remember that yes and at paragraph 63 of your witness statement to this inquiry I don’t think we need to go to it um you indicate that that Discovery and the implications of the Simon Clark advice were plainly enormous is your words do you remember that I remember that when you considered that the potential implication were so enormous did you and your colleagues not consider it imperative to ascertain the circumstances in which Mr Jenkins had come to give evidence in the prosecutions in which he was involved um well I I as you know I wasn’t taking the lead in this um but um as far as the um bugs were concerned my understanding was that um the bugs actually came either from fitsu or Mr um Jenkins himself and and they’re they’re not mentioned in any of the state previous reports do I take it from that that that inquiry as to the circumstances in which he came to give evidence was not something that was undertaken by cart Wright king or at least not to your knowledge well as I said I I I I wasn’t the lead on this so not to my knowledge would be probably the best thing but there are witnesses to come who will be able to answer that for you I’m going to ask you a few questions as to what you did and if the answer is no I didn’t undertake that activity that then please do just say um did you ask to see any of the written instructions that Paul or cartright King had given to Mr Jenkins no I didn’t um did you seek to understand what Rachel Panter who you described yesterday as a comparative baby we’ve heard described as a par legal um was doing in her conduct of these prosecutions for cartri King uh no I she she she was based in Lester and I I I I assumed she was under the supervision of Andrew BS who was there did you ask any questions of Mr Singh at post office as to whether Mr Jenkins had ever been instructed as to the expert duties of disclosure um I’m not sure I I think I was aware that he was in Mis um around about this time did you speak to him about his dealings with Mr Jenkins no I didn’t and just on the topic of Mr Singh did he ever reveal to you any of the Horizon issues that he had been told about by Mr Jenkins in the course of the SEMA misra prosecution no did he ever mention for example that he had been told there was a locking issue in Horizon which caused transactions to be lost that there were some 200 100,000 system faults no recorded in the Horizon system that Fujitsu maintained a known error log no right thank you and a similar question did you ever ask the question of any of the cartright king lawyers who dealt with Mr Jenkins whether he had been instructed in respect of his expert duties of disclosure no thank you um did you ever become aware that in many of the cases that were prosecuted by cartright King for example the case of Grant Allen Mr Jenkins had not been provided with the audit data in order to examine what what might have happened at the relevant branch no I wasn’t aware were you ever aware of indications that Mr Jenkins gave to cartright king um that the analysis of that audit data would have allowed him to ascertain what the issue might have been in a given case I I I I I I I wasn’t involved in the prosecution of any any substantial case I tended to come in when people ask me for a bit of advice generically and no subsequent investigation revealed those matters to you and I I know I I I wasn’t made aware by subsequent investigations thank you and finally did you ever speak to Mr Jenkins about the state of his knowledge and understanding I I never spoke to Mr Jenkins at all all right thank you um can we just look at one document please it’s Paul [Music] 0155 have you seen this document before um I don’t know all right um it’s dated the 2nd of September 2013 we’ve heard evidence that it was authored by a lawyer at post office called rodri Williams yeah but but it appears to record conversations with your colleague Martin Smith of cartright King yes um if we can scroll down to the bottom please um thank you on the right hand side in the Box the handwritten box we see the second Point down the question what were we doing to instruct GJ which we take to be a reference to Gareth Jenkins and in the left hand Corner we see M Smith and then a series of arrows and the first one is don’t think he’s ever been advised of his duties do you see that yes were those matters that Martin Smith ever discussed with you I don’t think so no was there any recognition to your knowledge within cartright King at the time of September 2013 when this note was authored that there had been a failure to instruct Mr Jenkins as an expert witness or at the very least that there was a serious question as to whether he had been instructed as to his expert duties again I not to my knowledge thank you and it may follow that you were not party to any discussions of those issues within Paul either I don’t think so no all right thank you Mr Bayer much so I think those are all the cor participant questions um and now uh would be the time for the morning break sir thank you well thank you Mr Boer for your witness statement for coming on two consecutive days to the inquiry I’m grateful for your participation I’m bless so we’ll now break off until um uh halfast 11 is that uh uh yes sir generous 15 minutes yeah thank you fine for e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e good morning sir can you see and hear me yes I can thank you thank you very much um we’re now going to hear from Mr Smith yeah c can I suggest um Mr Blake in terms of breaks that we don’t try and um fit in a sort of short break between now and 1:00 but rather we finish for lunch a little bit earlier and and time the day therea so to speak absolutely in fact we’ve been speaking to the stenographer and she has confed confirm that she’ll make a signal if uh we are going on for too long but otherwise we propose to carry on until lunchtime yeah okay 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 you can you give your full name please yes I’m Martin Johnson I Mr Smith you should have in a bundle in front of you two witness statements yes uh the first witness statement was taken in advance of um phase four of this inquiry it should be dated the 21st of November 2023 is that correct yes and if I could ask you to turn to page 34 the final substantive page yes can you confirm the that is your signature I can thank you very much in respect of this witness statement can you confirm that it is true to the best of your knowledge and belief it is true to the best of my knowledge and belief but there is a slight amendment I do need to make to this witness statement and can you assist us with what that is please in paragraph 104 on page 27 I refer to an email which I’ve um sent to Steven Bradshaw and Mark Ford um the second s sentence in that paragraph um could we change Mr Ford had confirmed to council had confirmed it was Mr Ford I was writing to and uh it was it I think it was a different Council who would have been in court not Mr Ford thank you very much um that witness statement has the UR win 9681 um the second witness statement is dated the 19th of March um of this year do you have that in front of you I do yes could I ask you to turn to the final substantive page that’s page 47 yes can you confirm that that is your signature it is yes and can you confirm that that statement is true to the best of your knowledge it is yes thank you very much Mr Smith both of those witness statements will be published on the inquiries website shortly um thank you you are a solicitor and have been since 1996 is that correct that’s correct yes you acted I think initially as a criminal defense solicitor yes I think you were a duty solicitor is that correct that’s right yes and before joining cartright King in 2006 yes and you were at cartright King until 2016 yes and I think we’ve already heard that um you then subsequently founded a firm with Mr Clark and Mr Boer that’s correct yes um and then you joined a new firm in 2020 is that correct yes whilst you were at cartright king um you were promoted to the role of senior associate is that correct did you start as a junior associate or an associate or something else I think I was just a solicitor I don’t think there there was a label attached um carright King acted in cases relating to the post office prior to its separation from the royal mail in April 2012 do you recall how much earlier we’ve seen for example documents from January 2012 was it around then or before then I’m afraid I I really can’t recall I I think the partner in charge of the Derby office um would attend court generally on an agency basis for the Royal male group stroke post office limited um much of the work was carried out I believe along those lines just attending Court to present cases but there became a point when Case Files started to be sent into cartri King for advice and I really cannot recall I’m afraid how how much earlier than April 2012 that that happened and does that go for your own involvement as well that you can’t be sure how much earli than April um you were personally involved I would certainly have appeared on occasions in court on an agency basis to present a case but I don’t recall when I first started preparing advises and doing something more than appearing on an agent I I I know the two um case studies that um I was involved in the advice as were prepared prior to the split so you separate being um acting as an agent and having full conduct of a case yes there’s a there’s a there’s a difference between the two in my view yes and what is the difference between the two well acting as an agent you attend court you present the case in accordance with your instructions and you report back um once we were asked to advise on cases that’s an entirely different situation um that is um requiring a lot more knowledge in terms of the role of a prosecutor than just simply attending Court to present a case at a hearing to what extent do you consider that you had authority to make decisions in a case once you had taken on that new role I think this situation was very nebulous to start with um and that certainly the two advices that I’ve seen recently um I wasn’t clear who was ultimately making decisions and I assume that it would be going back to the head of the legal department to make decisions we we didn’t for example know um what post office prosecution policy was at that point there were there were things that we didn’t know uh what yard sticks were we to apply in making the decisions yes we could advise in the general But ultimately those decisions needed to be made by someone within the organization when you first took over I think you’ve said in your statement that the old Royal Male cases were just provided to you without any Handover or explanation I I don’t recall any any handovers I think they just arrived and Mr Cash who was the partner in charge of the Derby office um would simply allocate them accordingly um distribute them to whoever he wants to deal with the case and you’ve said you didn’t see the various policies in place did that position change over time ultimately um cartright King was asked to advise with regard to amendments to a draft prosecution policy so yes we ultimately did see a a a policy and and and I think Simon Clark one of my colleagues made suggestions with regards to the proposed amendment of that policy and I think that was the the request of Susan kryon who was the then general counsel and is that later in say 23 onwards or would that have been in 2012 I believe that would have been after the publication of the interim second site report so in 2013 I believe and up until that point you were working without any policies yes um I think there became a point when Mr Sing decided how he would like the advises set out um and we followed the instructions that he provided in relation to that we’ve seen your name in quite a lot of the documents and the same names crop up again and again um were you one of the main sisters in The Firm dealing with post office cases there were very few sisters in The Firm dealing with post office cases um there was myself based in Derby Andrew Boltz solic based in Leicester um there may have been others from time to time involved um and in terms of council Simon Clark Harry Boer there may have been a couple of others from time to time if we take the 2012 2013 period together is it likely that you were the solicor who had the greatest conduct of individual cases I’m I don’t know I’m afraid uh I think the cases were generally a portion between myself and Andrew Boltz in Lester thank you we’re going to come and see issues relating to um decisions to prosecute basis of pleas Etc um were you able to um make those decisions autonomously without reverting to the post office in terms of decisions to charge the advice would be given to post office and post office would make the decision in terms of bases of play I believe that it would have been the common practice to revert to the investigating officer to run it past the investigating officer if possible who do you you understand from the post office to have been providing instructions in the cases that you were acting in prior to the separation it would have been the um post office legal department and I suppose post separation it would have been the post office legal department but the case File may possibly have come from an investigating officer direct ly or it it may have been that information was provided by an investigating officer and if you needed to consider whether to for example accept a plea or to make a charging decision who do you consider would have been the relevant person to approach in that respect well a charging decision would have been put in writing and the file would have been um returned back to post office in accordance with the uh the the the instructions at the time I can’t remember the precise mechanism for the return of the file I don’t know who it went to I’m afraid when you say the charging decision would have been made though who would it have been made by within the post office I I I’m not sure uh I can’t remember is it that you can’t remember or you weren’t certain at the time I’m afraid I I I just there could have been changes during this period of time because we’ve gone from having um the post office as part of the royal maale group and I believe files coming from Mr Wilson to the post office splitting off from the Royal male group and files being returned they would have had formal advises on them and I I cannot recall the changes to the processes and the Personnel in terms of who would have been looking at those documents but if we’re we’re going today look at 2012 2013 period who would you have considered responsible for making the ultimate decision as to whether to charge somebody well in prior to the split Mr Wilson at the uh Royal Mail group and post the split um rodri sorry um John El Singh at the U at the post office thank you I want to look at decisions relating to the public interest interest can we first please look at poll 00141 478 please uh this is an email of the 10th of December 2012 and it’s from John El sing to yourself and he says as follows Martin John Scott the decision maker um I think that it’s meant to read concurs with Council will Martin’s advice that is that it is not in the business or public interest to proceed with prosecution of Mr nemes Patel Marin could you write to the defense and Court um of the business decision and have the case listed for a short hearing where prosecution constructed that this agreed action must say to the defense and court is not connected with the Horizon system integrity and rather simply reflect at the defendant’s health and Associated issues now I think you’ve said in your witness statement that you don’t recall this particular case is that right I don’t recall this one no um but we see their reference from uh Mr Singh to the business or public interest to proceed what did you understand by the business interest well this was a a private prosecution and so a business conducting a private prosecution is always going to have an interest in whether or not the case should proceed and certainly there’s also a public interest argument in terms of whether or not the case should proceed and did you consider those to be separate interests or one and the same they can be entirely separate interests can we please look at poll 00 411 347 this is a much later case uh the case of Zen Elvin and this is a charging advice that is written by you if we could scroll down please we can see at paragraph six over the page a summary of what Mr Elvin said about his case in interview it says Mr elvin’s made full and Frank admission explaining that he had discovered that it was possible to sell a postal order reverse the transaction and cash the postal order before the cff point every day at around 7 p.m. so it seems as though this isn’t a horizon case um this is a case of somebody admitting a way to manipulate the Horizon system um if we could scroll down please there is then a section entitled discussion and I’m going to read to you paragraphs 8 and N uh it says as follows whilst this case does not appear to contain an horizon issue I’m concerned about the possible effect of comment commencing proceedings against Mr Elvin thereby putting a case into the public domain in which a suspect said to be honest there’s so many little loopholes in the system that you kind of just find them sorry if we could scroll up slightly thank you um we could scroll down now um paragraph 9 says as follows it says my understanding understanding is that Mr Elvin was able to exploit a known weakness in the Horizon system uh whilst this is not an horizon issue to the extent that the system permitted the sequences of transactions in accordance with its programming it does not of course make the position any less embarrassing for post office limited there is in my opinion a substantial risk that any reports generated by a prosecution in this case may be utilized by those who seek to argue that Horizon is defective or otherwise inadequate there is of course also the risk that the dissemination of information concerning this particular floor may also encourage others minded to commit acts of dishonesty against the post office and can we please scroll down to paragraph 11 you say at the end there in respect to the charging decision whilst the public interest test in this case is clearly met for the reason set out above I do not regard a prosecution as being in the public interest now looking at that advice and the charging decision that’s made there do you think that throughout your time acting for the Post Office uh you confused what was in the post offices private interests with the public interest more broadly I think there were times when it was apparent that those interests would be aligned but there was also times when they were clearly different and in this case it would be embarrassing for the post office to have to um make public the fact that there were not Horizon issues if you like but failure failures within the system to prevent issues such as this um and it was also a weak which could be exploited and so it would not be in the public interest for issues which could be exploited to be widely disseminated so let’s leave that second consideration aside but you’ve very clearly said in paragraph nine uh that a consideration is PR essentially preventing publicity of flaws in the Horizon system because that could be embarrassing to the business yes do you think that that is properly a public interest no I think that a business interest and therefore we can see here that you have said the public interest test is met but you don’t regard a public a prosecution as being in the public interest might it be there that you have in fact uh confused both uh the public interest with the business interest looking at this now and the way that paragraph 11 is phrased I do wonder whether I should have said whilst the evidential test is met and and how about the second part I don’t regard the reason set out above I do not regard a prosecution as being either in the public interest or in the in the uh in the interest of the business yes so that was a separate consideration that was wrapped up as the public interest in this advice I I believe I’ve um just wrapped that up very briefly there perhaps without going into too much detail and do you think that this is an isolated advice or or do you think actually looking back that was something that was often confused in post office prosecutions I’m afraid I can’t I can’t remember all the advices I’m afraid I’m not asking about a specific written document but looking back at your career in Prosecuting post office cases do you think that the public interest and the private interest of the business were often confused it’s possible that they could have been and you were involved in them so do you think they were or they weren’t I I I can’t recall is it something that you need to recall at a specific instance or can you just reflect on your career and say whether or not it’s likely that um you confused the public interest with the private interest of the company I think it’s certainly possible that the two could have been confused because at times they would have been aligned and so there was the potential for confusion I want to move on to knowledge of bugs errors and defects um during the 2012 period and the first document I’m going to look at is poll 000000 573 62 this is an advice that you wrote in January 2012 so this is where I dated the involvement from at least January of 2012 uh in advising on specific cases for the post office this is a case of Hutchings if we look at the final page we can see your name 4th of January it’s page three sorry thank you very much if we could go back to page one please I’m just going to read a few passages from that advice so the prosecution case on the 30th of March 2011 an audit was carried out at the Roland Castle sub post office branch which revealed a deficit in the accounts of 9,743 76 the audit had been arranged after the branch failed to return £30,000 as requested the next paragraph says there is a very strong evidence to support the allegation that Mrs Hutchings had inflated the amount of cash held within the branch usually by inflating the figure for cash held in 50 notes on the days upon which branch trading statements were completed so there’s an inflation of the amount um on the day that uh the accounts were due to be balanced yes if we scroll down thank you very much the the bottom paragraph there it says in her prepared statement she admitted to altering the cash declarations and suggested that she had done so only since the migration to Horizon online which she thought was around the months of May or June 2010 the migration date was in fact the 5th of July 2010 furthermore she stated that at the time of the migration all accounts balanced uh which was clearly untrue she also gave examples of problems which she alleged she had experienced with the Horizon system which do not appear to be of any relevance whilst Mrs Hutchings has denied stealing any money she has not put forward any explanation as to how the deficit has arisen and then if we scroll down to the bottom of that page in terms of charging it says that Mrs Hutchings should be charged with a single offense of fraud um this was in January 2012 very much a case alleging problems with the Horizon system it was yes I’m going to move to the summer of 2012 now um can we look at poll 001 14148 and this is a case of Jamie Dixon and it’s an email from you to John El Singh and it reads as follows please find attached a copy of the defense case statement in the case of Jamie Dixon as you’ll see he has said that he does uh he does not have confidence in the Horizon accounting system or that transactions were accurately recorded uh he puts the prosecution to prove that the money is missing and you then continue as follows you say this is therefore another case in which there will be a challenge to Horizon I propose to talk to the Barrister whom we have instructed and explained that a robust stance should be taken at the ple and case management hearing on the 3rd of August 2012 I.E The Horizon system works perfectly and that if the defense wish to challenge the Integrity of it their specific allegations should be particularized so that those particular issues may be further considered and we can actually look at the defense statement in that case that’s at fuj 0153 918 this is the defense statement and if we turn over the page please to page two um it says as follows it says the defendant was disorganized but not dishonest although he thought he knew how to operate the computer accounting system he now realizes he did not understand it fully and puts this down to a lack of training a lack of experience in serving customers paragraph four says the defendant understands that in addition uh cash in excess of £5,000 is also said to be missing he does not have confidence in the Horizon accounting system or that transactions were accurately recorded he puts the prosecution to prove that the money is missing the defendant denies that he has taken the money I’m going to move on I’m going to show you a few documents before I’m asking you about the position in 2012 can we please look at poll 0000 46242 this is an email in the case of ishak which we’re going to look at in a bit more depth um you’re sending Sarah Porter there is Sarah Porter counsel in the case she was in-house councel in kri King I think based at the Nottingham office thank you um you’re sending her the defense statement and it says good morning Sarah please find attached copies of a letter from the defendant solicitors and the defense case statement the defense clearly aware of the current Horizon issues and are on a fishing Expedition this in my view is a red herring the stamp shut sales which have been reversed thereby increasing the stock and lowering the amount of money needed to achieve a balance were clearly not there at the time of the audit one final document that I will take you to it’s fuj 0022 6331 and so we’re now in October 2012 if we scroll down to the bottom email please we have there an email from John El Singh to Gareth Jenkins copying you in and it’s um it’s in relation to a case but I’ll read you the second paragraph that says on advice post office limited have appointed one of their investigators Helen Rose as disclosure officer dealing with Horizon challenges she has prepared a document SL spreadsheet detailing all such cases past and present approximately 20 in total although none thus far successfully argued in court post office limited have been advised to obtain an experts report from Fujitsu UK The Horizon system developers confirming the system is robust post office limited maintain the system is robust but in light of adverse publicity from legal Viewpoint is that the defense should be given an opportunity to test the system should they wish to do so on consideration of our report so taking all of those emails together um am I right to say that in the beginning of 2012 and throughout that 2012 period there was a growing picture of challenges relating to Horizon integrity that’s correct yes and you had conduct of ongoing cases that raised issues of horizon um Integrity whilst that picture was building up yes we’ve seen in those emails references to a robust stance and to a fishing Expedition is it fair to say uh that irrespective of how you feel now um the picture we see is one of pushing back against disclosure requests relating to the Integrity of the Horizon system the the the the picture at the time was that post office was saying that the system was robust um they were clear that the system was robust and in those circumstances we took the view or certainly I took the view that only such information as met the test for disclosure should be disclosed to a defendant who in post office was assuring you that it was robust John El SN um head of criminal law was telling us the system was robust Steven Bradshaw an investigator was saying the system was robust the message that cour with right King were receiving was that this system was robust and certainly in a number of cases that I dealt with the requests for disclosure were either not relevant in some circumstances or too wide or for information which generally you would not consider um would like would be likely to meet the test for disclosure I’d like to test that and we’ll look at the case of isach and we’ll look at developments over the period of uh involvement in that case and we’ll look at it broadly chronologically we’re going to start on the 29th of August 2012 can we begin with poll 0000 46244 please um so we see there a letter from Mr isek solicitors Musa Patel’s solicitors um we see there under your ref MS2 and then it has a number is that your personal reference MS2 MS2 was my fear and a reference number and the 24676 would be the cartri king file number thank you so you were the solicitor with conduct of this case I don’t know if I had conduct of it throughout um there was a and I think it this case was one which was transferred to Nottingham with a view to in-house Council preparing it with Rachel Panter but of course Mr Patel would not necessarily have known of any change of personnel um so as at the 29th of August 2012 when the defense statement was received were you the solicitor with conduct of the case I don’t know if another if anyone else had been given conduct of it would it be surprising your initials are at the top with the reference no because that would have probably been lifted from earlier Communications I think there was a suggestion within cartright King that once the case had gone to the Crown Court the file would be transferred to the Nottingham office it would be then allocated to Rachel Panter and in-house Council and they would work on it together um and I think this was one of those such cases that was being transferred to the Nottingham office and was actually transferred to the Nottingham office um we know that Rachel Panter was was a paralal has been described as particularly Junior she W I believe she was a junior paralal but her role was to work on cases um under the guidance of In-House counsel uh to leaz with external counsel and lia’s with um uh Mr Jenkins uh I I believe that this was one of the cases that she was intending to work on within House Council and I think ultimately um on reflection this came this case became a bit of a mess because I I don’t think much happened for a while um and then it was worked on by her in Nottingham and myself in Derby we’re going to see quite a lot of emails throughout 2012 and into 2013 with your name you’re you’re sending them yes if not on ER the solister with conduct of the case did you consider at least that you were significantly involved in that case yes and had a degree of responsibility in that case yes this covering letter says um we enclose here with defense statement prepared for our above named client and we’ll have a look at that defense statement it can be found at poll 0000 58244 um the defense statement is dated the 29th of August 2012 I’m just going to read a few passages from it if we could scroll down please over to the next page um the defendant sets out the general nature of the defense are you able to assist us with whose handwriting this is I don’t know I’m afraid I don’t it’s not yours it’s not my handwriting no um it says as follows in 71 there was no appropriation of monies the post office Horizon software/hardware system had in the past on numerous occasions malfunctioned causing difficulties in reconciling sales receipt and stock figures the defendant had reported the same to the post office helpline seeking assistance but little or no successful assistance was afforded to him despite the said request uh and point two the defendant had of necessity to make certain adjustments by way of reversals on the horizon system so as to ensure the sales receipt and stock figures reconciled this was done on the basis of a clear malfunctioning of the system and in accordance with the limited training given to the defendant by the post office in the past with very limited support thereafter and not in order to appropriate any sums of money uh so he’s putting the reliability of the Horizon system front and center of his defense yes yes if we scroll over the page please paragraph 11 there is a request for various disclosure and by way of example we have at 113 the a request for the outcome of all inquiries in relation to other post office staff Andor contractors who have been the subject of Investigation by the post office or any other investigative body in relation to allegations of dishonesty related to the use of the post office Horizon hardware/software uh number four they’re requesting the full results whether provisional or final of all internal and or external investigations and or inquiries and or reviews whether instigated by the post office or any other body into the correct functioning of the post office Horizon hardware/software system and number five says that they are requesting any internal memoranda and or guidance notes and or other material dealing with the correct or incorrect functioning of the post office Horizon hardware/software system um now I’m going to take you back to an email that we looked at very early on in your evidence it’s poll 0000 46242 and that’s your email to Sarah Porter of the 3rd of September where you say the defense are clearly aware of the current Horizon issues and are on a fishing Expedition can we now please turn to poll 00004 6243 do you recall sending that email about the fishing Expedition I I don’t recall sending it you don’t recall sending it no I do accept that I sent it but I don’t recall next thank you very much we’re now turning to an email if we could look at the bottom of the page on the 4th of September 2012 there is a ple in case management hearing um and we have here a attendance note of Sarah Porter can we scroll down the page please um she notes there that um Mr isek has entered a not guilty plea um if we scroll down please the defense are instructing a forensic accountant trial has been fixed and she says as follows I have made it clear that our stance is that Horizon works and is irrelevant in this case because he now accepts making the reversals and we say in doing this he was acting dishonestly to cover his tracks any particular problems with the system must be fully particularized before any further disclosure made judge has indicated the ball is in the defendant’s court um now where she says I’ve made it clear that our stances that Horizon Works um who would have been providing that instruction that would undoubtedly have been following a conversation with myself um she then details she says re specific requests one only such material as undermines our case or assists the defendant in light of the defense statement should be served and then she refers to 2 three four and five are these paragraphs referring back to paragraph 11 in the defense statement that we just saw you’re a cool I took you to yes some of those paragraphs and she says I understand that the post office are compiling some sort of database in relation to this uh can the progress of this be checked uh but until uh the defense statement further particularized does not require disclosure it says C HB is that Harry boer’s advice in the Wy case it would be yes yes um what did you understand by the database that was being compiled I’m sorry I missed that question what did you understand by the reference there to a database is that a reference to Mr boa’s advice to keep a central yes list yes I think Mr Boer had advised that a database be set up of the unsuccessful challenges um to the Horizon system um I think that was following a consultation which he had had with John L sing um so Mr B’s advice was the 11th of July 2012 um had you by that by the stage of this hearing had you read that advice I have read it but I don’t know when I read it if we scroll up please I mean the reference her reference to a database for example would that have taken you by surprise or was that something you no I I I knew a database was being compiled because the instructions which cartri king had received was that the system was robust and Mr Boer I understood had advised that um a uh a database should be put together of the um the challenges and I know at some point I was copied into a an email that um John El Singh sent to Gareth Jenkins I can’t just remember the chronology of it whether that’s before or after that or after this I I’ll take you to that document um but first can we please look at the top email page one of this um you are emailing Steve Bradshaw the investigator copied into John El Singh and you inform them of the results of the playing case management hearing and you say as follows Sarah took a robust stance in relation to Horizon it will remain to be seen where allegations of malfunction are particularized however she has asked that progress be checked in relation to the compilation of the database um so am I right to understand that the response to Mr ishak’s request was to um try and get him to further particularize his complaint I thought that was sensible because if if someone could give an example of the sort of issues that they’ encountered that would enable an expert to look into that um was it sensible or was it a tactic no I I thought it was sensible just in the same way that if you were staying in a hotel and you think you left your car keys somewhere in the hotel the hotel might say well which room were you staying in where were you I thought it would be quite useful to have that information so that we could properly investigate so we could look into particular allegations that were being made did the defense statement not make those allegations I mean we we looked at some paragraphs in the defense statement um where um he says in the past on numerous occasions had caused malfunctions causing difficulties in recording sales receipt and stop figures um he also referred to having reported the same to the post office do do you not think that the post office was quite well placed to make those kinds of inquiries well certainly Mr Bradshaw um was able to make inquiries internally within the post office but certainly I was of the view that if you could ask someone what are you saying as has happened specifically that would assist and is it your evidence that that was um not a specific tactic that was adopted in this litigation it it wasn’t a specific tactic no at no point throughout the she case was that a tactic no I don’t believe so no we were we we I think I wrote I wrote um I wrote at a much later stage I believe to mystery sh solicitors um asking them whether they were going to particularize or asking them for particulars because I didn’t want to get almost to the point of trial and then find that we had then particulars which it would then be difficult to investigate at the 11th Hour well we’ll get to that shortly and forms that the post office were instructing second site to carry out a review if we scroll down please over the page sorry may I just add to that I’m not sure whether at that stage we necessarily appreciated that it was post office that had instructed second site I think there was a suggestion at some point that it might have been um a a a some sort of parliamentary function that had instructed second site but in any event we knew that second site had been instructed and that presumably the post office would have to liaz with second SES to assist them in their investigation and the bottom of page two is where we see the advice from Mr Bo that 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 Etc so is this the the database that is referred to yes yes it will be thank you um moving to September 2012 could we please look at call 0000 60738 and it’s page three this is a document we’re going to come to a few times it seems to be um minting of of work that is being done is this a document you recognize it is I believe it’s what we call within uh King as a billing guide it would generally list the chargeable work um and some of the narrative attached to a a time entry but not all of the narrative attached to a time entry if we look at page three we’re returning to the 4th of September which was the date of the Ping case management Hearing in Mr eek’s case and can we can you see there about halfway down just off over halfway down this page it says uh discussing with SP by phone and stance to be taken re Horizon Etc and it has your name there yes are we to understand that you spoke to Council on the day of the ple and case management hearing regarding the stance to be taken uh in relation to Horizon yes and do you recall if that was while she was at court whether it was before uh whether you were providing Specific Instructions I’m afraid I I I can’t recall that I can see that I was engaged on that call for 12 minutes because of the point two that’s in the right hand column um point two of an hour um I don’t know whether she telephoned me from court with a view to clarifying her instructions or whether I spoke to her by calling her I I don’t recall but she would no doubt have been given the brief by the Nottingham team because it was going to be dealt with in house by the Nottingham team and she may very well have phoned me to to discuss it and I think you you’ve already said that looking at the attendance note and the information the position that she took in relation to Horizon followed a conversation with yourself yes um the email that I think you were talking about that attached various things um is at fuj 00226 331 and it’s the bottom email there I think that’s that’s that’s an email that I took you to earlier um from Mr Singh referring to the Helen Rose uh acting as a disclosure officer and preparing a document and she attached the the spreadsheet of 20 cases is is that the email that you were referring to yes and I I didn’t um at that time look at the spreadsheet I don’t even think I realized there was two documents attached let’s look at the two documents that were attached the first one is fuj 0015 6648 um this is a note prepared by um Helen Rose it’s not what we know as the Helen Rose report it’s a note um entitled Horizon Integrity summary report do you recall receiving this document I I I didn’t see that at the time it may very well be that I received it because it would have been attached to an email but I rather took the view at the time that the spreadsheet I was under the impression that the spreadsheet had been considered by a number of my colleagues Harry boa Andy cash and Andrew Boltz and I didn’t look at the enclosures because I simply looked at the email which said that post office’s stance is that the system is robust let’s look at this report I’ll read to you a few passages overview says over the years some post offices under investigation for losses have claimed that the Horizon system is at fault as the post office is dependent on the reliability of our system to be able to prosecute offenders we’ve been able to defend our system in the courts and then it goes on to summarize various challenges for example Le in relation to the yetminster branch it says during the interview Miss Meritt produced a large document regarding an ongoing inquiry by shith solicitors in respect of the justice for postmaster Alliance stating that she believed that the post office Horizon Equipment was the actual cause of this loss at the start of interview Miss Merritt blamed the Horizon system and stated she had problems with transferring cash Etc if we scroll down there’s another Branch barkham it’s over the page um summary Mike Wilcox stated along with grah Brer I met Mrs stubs on the 17th of January and she was convict convinced that Horizon was at fault she has retained daily transaction logs for December to January in which time she lost £99,000 and is not prepared to release until she can compare it to Fujitsu data if we scroll down we go on to the rink field Branch under the summary there it says as follows it says during the interview Mrs McHugh stated that she did not feel 100% comfortable with the Horizon system uh but did not appear to directly blame the system for the losses if we scroll down under outcome it says an indication was given that a plea to count to fraud might be acceptable so long as the defendant stipulated in her basis of plea that there was nothing wrong with Horizon and that she was responsible for the loss and recognized the confiscation that would be sought should the loss not be repaid so a number of different cases where Horizon has been raised not even at trial but also even at interview yes if we scroll down please there’s reference to the Newsome Branch we can go over the page the defense challenged the Integrity of the Horizon system and employed a forensic accountant um we then get on to West by Fleet if we scroll down the end of that summary it says an expert witness was put forward by the defense to challenge flashing bandwagon and it’s now the it’s the conclusion that I’d like to look at it says although there have been attempts to discredit the Horizon system via the courts to date the post office have been able to defend the Integrity of the Horizon system at all levels when questioning the Integrity of the Horizon system the defense solists are making similar disclosure requests indicating that disclosure requests and future challenges will be similar to those made in past Horizon Integrity challenges depending on where the loss was identified this can sway the disclosure request slightly into requiring further details and operating procedures around spefic specific transactions including background processes I.E the processing of checks once they have left the office and electronic funds transfer records so just pausing there on that paragraph there is there forming a an attempt to try and put pressure on defendants to give greater specificity as to um the allegations that they’re making about the Horizon system not that I was aware I’ve like I’ve said I didn’t read this document at the time I don’t even think that I realized there was more than a spreadsheet attached to um Helen Rose’s email um I saw this document for the first time when it was disclosed to me in these proceedings let’s look at the second attachment then that’s fuj Z 1 53807 and this is the list itself the database we see there are a number of cases that we’re well familiar with the Hamilton case if we look in h if we scroll down uh SEMA misra if we keep on scrolling down towards the bottom we see um if we go to the very bottom um we see there seon and N for example that was a case that is described there as ongoing were you aware that there were not only this list of uh historic cases but also at that stage ongoing cases that related to The Horizon system I knew that this spreadsheet was designed to be a work in progress so looking back in time but also so then being kept up to date from that point in time but I didn’t open it at the time because I didn’t see the need to I knew that it had been um sent to a number of colleagues who had seen it no issues had been raised internally about it and Mr sing’s covering email to Gareth Jenkins was to the effect that it was post office’s um case that the system was robust um was a I was copied into that and did not um think it necessary to go through all of that information um given that it had emanated from Mr Singh head of criminal law at post office but just to recap as to where we are within a month of the Ping case management Hearing in ishak’s case and you had been told we see there in Mr boa’s advice about the second site investigation um weren’t those precisely the kinds of things that Mr ishak’s team were after well I I was the short answer is um yes when I opened the spreadsheet When I Was preparing for this um public inquiry I was actually quite horrified with what I read on it because whereas I had understood that it was a list of unsuccess um I was quite horrified to see for example on on um and it’s not on the screen in front of me now but on the spreadsheet there is a case where a supposed master or M was able to demonstrate losses and therefore no further action was taken so it wasn’t exactly as I had understood it to be literally a list of unsuccessful challenges um that is what I understood her was being prepared but it actually went on to contain more than that I didn’t appreciate there was a separate document by Helen Rose um because when the Helen Rose report which which we use that phrase in a in a in a different way which was ultimately the subject of disclosure um I certainly wasn’t sat there um with Brian Alman um QC at the time KC now I certainly wasn’t sat there with Brian Alman thinking oh yes well there’s another document by Helen Rose I I I simply did not realize that that existed if we look back at the defense statement in Mr eek’s Case can we look at poll 0000 58244 and it’s page three it’s that list and it refers there at at 11 uh three the outcome of all inquiries in relation to other post office staff Andor contractors I mean that’s precisely that list isn’t it well it’s perhaps broader than that list but I think it’s I think it’s broader than that list but it would include that list um or the equivalent information it will it would the request is broader than that list but also um I took the view at the time that unfounded allegations and unsubstantiated allegations were not disclosable and I understood that list to be unsuccessful challenges on on substantiated allegations but the request there is in relation to those who have been subject to investigation by the post office or any other investigative body in relation to allegations of dishonesty related to the use of post office Horizon hardware/software so it it wasn’t simply Rel asking for that very specific uh matter that you’re identifying it was it was a request for broader information yes it was it I took the view that it was a very wide request and indeed um I took the view that it was perhaps too wide in its approach but having received in this attachment because uh it contains a list and that’s the kind of thing that Mr ishak’s been after no I didn’t because I thought it they were unfounded allegations so you didn’t look at them because you thought they were unfounded well I I was under the impression that these were unsubstantiated challenges um and I did not regard um unsubstantiated challenges unsuccessful challenges as being disclosable a bit like um I mean I think that my thought process was this if you were to ask the crown prosecution service for um information about the disciplinary record of a police officer you don’t in my experience get to know of all and every single allegation made against that police officer you’d only get to know of any findings that that of of of misconduct you would however expect the solicitor with conduct of the case to actually look at the underlying material to determine for themselves whether they met that test wouldn’t you well I’m afraid I I didn’t open those documents yes and is that a failing on your part with with hindsight I wished I had do you think that it would have been reasonable at the time having received a list irrespective of how detailed the list is irrespective of whether they were successful or unsuccessful to at least to have opened them to see whether they fit within 113 well I didn’t think to do that at the time because as I’ve already said a number of my colleagues had already seen those documents to my knowledge nothing had been flagged up and we were awaiting an expert report and so I I I I did not think it necessary to actually look at those documents so your colleagues from other cases who weren’t charged with Mr ishak’s Case hadn’t flagged something that might relate to Mr ishak’s Case well well no one had said oh my goodness look at this spreadsheet look at what it contains he oh my goodness the test for disclosure um no it’s not but it would be the it was the it was the uh the view I took when I opened them when I Was preparing for this um number four the full results whether provisional or final of all internal and or external investigations and or inquiries and or reviews we’ve seen in Mr boer’s advice reference to the second site investigation do you think that that might have fallen Within in 114 well there there were not I don’t believe there were full results at that point um whether provisional or final I I yeah I don’t know if there were um provisional or final well you make inquiries about that there well there weren’t because um second site didn’t report until I believe July 2013 and this was way before then so the I think it says see insight to uh in someone’s handwriting on that I think that’s probably reference to Second site I don’t know um but certainly second site had been instructed at that point but I don’t believe there were any any results from that um and I did go through this list with Steve Bradshaw if we scroll down please any internal memoranda and guidance notes and or other material de dealing with the correct or incorrect functioning of the post office Horizon hardware/software system I me might in respect of these requests confirmation that there was this independent firm looking into Horizon um have been something that’s worth disclosing I believe that was disclosed in a witness statement by Steven Bradshaw and at what point was that uh that was um I believe the following year in 2013 yes and we’re here in 2012 dealing with disclosure requests can we please look at poll 000058 377 the 8th of October 2012 it’s a chaser from M Patel solicitors um it’s addressed to you do you think that might be an indication that you were solicited with conduct of that case well they would believe the I was still dealing with it whether it was in Derby or whether the file at that point had been transferred to Nottingham if we scroll down please it says I was expecting uh the information requested at paragraph 11 sub paragraph six of our defense statement I think that’s the Horizon data to have been served by the 5th of October as per the judge’s order at the ple and case management hearing then says I would be most obliged if you could revert back to us to advise not only on the progress of the afor mention matter but also other matters referred to at paragraph 11 sub paragraphs 1 to8 of our defense case statement and of course all relevant material under paragraph 10 so there is a chaser there in relation to those paragraphs that we’ve just been looking at and we’re in October 2012 um I’m going to take you back to your billing notes and that’s poll 0000 60738 please Paul 0000 thank you very much it’s page four now we’re in October we’re going to look at between the 9th and the 11th of October we may need your assistance in deciphering whose name comes alongside what it may may be difficult to tell because of the way that this is presented but let’s let’s try if we look at the entry that says the 9th of October 2012 email for case 2 4676 review of file um upon receipt of Musa Patel’s letter we still await the Horizon data disc from Steve Bradshaw and then it says although SP had taken a robust view of the defense case statement disclosure is an ongoing process and the developments in the Patel case uh May well have a bearing on D that might might be May well have a bearing on the defendant do you remember the Patel case that may be a case called nimes Patel that was occurring at the same time well can I just first of all say that um I believe the way that billing system works here is that it will take part of the attendance note but not the entirety of the attendance note so it gives a flavor of the narrative in that second column but then it will then pick up the same for for Rachel Panther for example below so bearing on D um I would then regard the discussing progress of case with MJS as as the start of Rachel Pan’s attendance and I’m afraid it’s just how it would space it out in different columns absolutely so we see the the first entry is your entry yeah um which refers to a case of Patel yes um and and I think that it it will simply just cut off the number of available characters when it says case may have a bearing on D um the rest of the attendance note will not have if there was any would not have been produced in reproduced into the billing guide here um review of of the file um I’m afraid that doesn’t tell me whether the file was in Derby or Notting and because we had electronic files as well as um paper files and that became more of an issue when FS were in different locations because one wouldn’t necessarily match the other um do you recall the case of nimes Patel I don’t know whether it could be jishan Patel was there another case with the surname Patel that related to challenge to the Horizon Integrity in that period I believe there was a case of jishan Patel and I believe that I sought a report from G Jenkins in relation to that and he mentioned a single previous bug in that report you with with an earlier edition of the of the Horizon system um and so I I I don’t know whe I don’t I don’t know I’m afraid with regard to the timeline whether I had made that request at that point I know I did make a request in the case of Gant Patel for a a a a report um I’m not sure that that was actually the question that I was asking the question I was asking is about the Patel case were you aware of a case with a surname Patel challenging the Integrity of horizon uh in October 2012 then then yes I was but the one I’m I’m thinking of is jishan Patel thank you and then we get to Rachel Pan’s entry which says as follows discussing progress of case with MJS is that yourself that’s me deciding whether I should pick the case up from him as it is very similar to Patel’s case and then she refers to the dis um she says in terms of dis uh then we concluded that I should pick it up review a file upon receipt of Musa Patel’s letter we still await the Horizon data disc from Steve Bradshaw although SP had and then it’s a repetition of I think the attendance note that we see above um so it is clear that in October of 2012 you were aware of another case of running alongside the Sha case where there were very similar issues being raised yes yes and it’s clear that what I am saying there um is that we have to keep an eye on disclosure although sorter had taken the robust stance um it’s an ongoing process we have to be aware of things that might appear in other cases um and I was um thinking that something might potentially come out of another case which we might have to disclose to um Mr isach thank you can that’s why I think it was the jishan Patel case because I was I think I was waiting to see what Mr Jenkins put in that report because if it put in that report um information um in relation to the current addition of the Horizon system then obviously that would have made me sit up and take notice so only if um Gareth Jenkins was addressing Horizon online would it have made a difference to your disclosure obligations uh in the ishack case is that well I think I mean we’re going I think we’re going um somewhat forward in the chronology now but I think in the jishan Patel case I received a report from Gareth Jenkins which made reference to a single bug in the pre in in a form of version of the uh the um Horizon system should we just call it Horizon rather than Horizon online it was the previous version we know it as Legacy Horizon okay we could we can use that phrase so I think I was made aware of a single bug in the Legacy case I believe that was the um faler calendar Square bug um which was subsequently discussed and I did not feel that might reasonably assist the defendant or undermine the prosecution’s case on the basis that was several years previously and a different version of the system did it not make you question the robust line that had been taken since you started taking on those post office cases no was a a a single issue affecting I believe one branch several years previously can we please look at poll 000059 296 we’re now in November 2012 1st of November a letter from M Patel solicitors if we scroll down please the trial is due to take place in February and it says as follows I write further to the ffor mentioned matter and confirm that we have received a dis containing core data for the duration of the indictment period as you are no doubt aware this should have been served by the 5th of October and if it is to be the subject of a forensic report then it had to be served uh by the defense on the 30th of November 2012 we respectfully write to inform you that it will be impossible for the defense to comply with the judge’s order uh and at this present moment consideration is being given to listing the matter for an intervention hearing hopefully we’ll be able to address the lack of disclosure in respect of matters contained within paragraph 11 of our defense case statement and was subject to our letter of the 8th of October 2012 so that’s again a reference back to those requests uh that were made in October in paragraph 11 of the defense statement sorry that were chased in October um that were contained within the defense statement yes we’re going to go back now to the billing record it’s poll 0000 6738 and can we look at page six thank you if we could scroll down please we have on the 20th of November um an entry that sorry if we could scroll up slightly thank you um there’s an entry 20th of November and it says as follows consider proposed letter drafted by RP that I think is Rachel Panther suggest amend par one by deleting suggestion maybe more evidence and repeating fact J I think that means judge said bull firmly in their Court when given opportunity to provide revised defense case statement uh particularizing Horizon issues is that your note it would have been lifted from my attendance note yes and it appears that you are suggesting amending a letter that’s been drafted by Rachel Panther and before we break for lunch I just want to bring on to screen uh how her draft and your draft if we could first look at poll 0000 5947 this is the covering email from Rachel Panter and she says please can you just look at the attached before I send it I imagine the defense will not be too pleased but that that is our position I had to concede that the discs were served late they may respond to say that they are unable to particularize any issues with the system until they receive the report they shouldn’t as that was the wish of the judge at the last hearing but without having the expert report yet uh to send to them uh that is the best I can do for now and I’m going to take you now to the letters could we bring up onto screen Paul Z 00 59416 and if it’s possible to also bring aide it poll 0000 5949 thank you so this one currently on screen is Rachel Panther’s first draft and on the left hand side is the version that appears that you you fed back on according to that billing note yes and we can see if I read to you on the the right hand side it says thank you for your letter dated the 1st of November 2012 we have been leasing with the investigator in this case and hope to serve any further Evidence within two weeks time time however we look forward to receiving a revised defense case statement which particularizes the issue if any you may have with the Horizon system as indicated by Judge Rose at the ple and case management hearing um and then the version and after receiving your feedback if we look at that first paragraph that we look forward to receiving a revised defense case statement which particularizes the issues if any you may have with the Horizon system we will then gladly review our disclosure obligations accordingly so reference to further Evidence potentially coming has been deleted and what has been added is effectively a a confirmation that disclosure obligations will only be looked at again if there is a revised defense statement is that fair well the first point I would make here is that I would generally advise people not to to set themselves self-imposed deadlines so I would have advised her to remove the reference to um hoping to serve evidence within two weeks time because there had already been delays in receiving information from Mr Bradshaw so that’s the reason why I advised that be taken out um I was still hopeful that they would survey revised defense statement um which might particularize issues and yes we would then obviously um review our disclosure obligations so is your evidence once again that this wasn’t a tactic um to put the onus on Mr eshach to specify something I don’t believe it was a deliberate tactic now I can see how it looks but I don’t believe it was a deliberate tactic we were asking Mr ishak’s solicitors to particularize the issues which is the approach that had been um discussed in court at the um pcmh hearing the pl case management hearing and it’s apparent that his honor George Rose at the pling case management hearing on the 4th of September had made the comment to the defense Advocate that the board is in your court so I was encouraging them in my mind to um provide information that could be looked into I mean any reference of further Evidence coming their way or further information coming their way has been removed hasn’t it well I didn’t think it was sensible to say we hope to serve further Evidence within two weeks because if I received that letter as a defense list I’d be diarising it for two weeks and then jumping up and down I was very much aware that there had already been delays in this case and and I don’t know I don’t know why there had been delay I can’t remember why there had been delays in this case but clearly information had not been for coming very quickly from Mr Bradshaw um and I was trying to avoid um any issues arising out of setting a self-imposed deadline that’s quite a generous reading of that leftand letter isn’t it there’s no reference whatsoever in that left-hand letter to any further Evidence coming at all uh at any time well without knowing what information Mr Bradshaw is going to provide we don’t know whether or not it will meet the test for disclos Ure so to say we will be serving further evidence on you when we don’t have it we don’t know what it is I think would be um quite frankly a little DFT sir might that be an appropriate moment through break for lunch yes by all means thank you so um 5 to two thank you very much sir e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e the matter we ask that you review your disclosure obligations if you have not already done so and revert back to us with your final position and if you still feel that you’re not obliged or willing to provide the information then we may give thought to a Section 8 application so so they are chasing disclosure once again in this letter aren’t they it would appear so yes Paul 001 07855 we’re now in January 2013 so another month has passed I write further to my letter of the for author dis imminent I think it prudent to deal with the following matters and would be obliged for a response as soon as is practically possible and if we scroll down and over the page please I asked for your final position in my letter of the 4th of December 2012 I made it clear that if such material is not served then a Section 8 application would be sought however perhaps before reverting back to me it may be prudent for counil to lease with each other as soon as is practically possible uh for the sake of convenience he gives cancels details and then says suffice to say in light of our defense the material requested at paragraph 11 is clearly disclosable under your statut if we please could turn to poll 0000 5955 7 we have an email from yourself to Rachel Panter and it says I’ve received a letter from the defendant solicitors and it mentions Gareth Jenkins statement and then it says as follows it says there is a chance it could go off however as the defendant solicitors are grumbling about disclosure and the lack of information on the disc prep prepared for them by Steven Bradshaw um they have asked the court to list the case for an intervention hearing and the provisional date for that is the 5th of February um do you think grumbling is a fair description of their repeated requests for disclosure no I don’t because of course it had been the post office that was taking a decision to um effectively delay disclosure until they had provided more particulars yes I I can’t recall um precisely the sequence of events um but I I am under the impression that cartright King either through myself or racial pant leased with Steven Bradshaw on a number of occasions uh I just can’t remember um I’m afraid without looking at the file all of those occasions but certainly yes they were um quite frankly right to complain weren’t they yes and not just in respect of any delays on Mr Bradshaw’s part but we know that by this time you had received the database although your evidence is you didn’t open it I I hadn’t looked at that no you had received a note by Helen rose again your evidence is you hadn’t opened it that not um you were aware of a similar case going on at the time where you say that involved information about a bug um you also aware of Second Sight investigating at this time was there a lack of curiosity on your part in respect of the various requests that they had been making and I don’t think there was a luck of curiosity um I think I took the view that the requests were for um or some of the requests were either too wide or information that wasn’t relevant or um not going to meet the test for disclosure so why are you saying that grumbling isn’t a fair description of what they were saying well I think it’s um looking back I I think it would have been better to have rephrased that repeating their requests for disclosure so I also think that um as a firm we were liasing with Council as well in relation to disclosure um and so grumbling I think is perhaps an inappropriate term doesn’t it suggest a degree of ambivalence on your part no it it um it’s just an inappropriate word with hindsight it was a word that was used because you were ambivalent in respect of their disclosure requests no I was very aware that they were making repeated requests and and and and yeah they had raised this a number of times can we please look at poll 00114 660 and the bottom of the first page we have an email chain still relating to the case of isek um from yourself to Mr Bradshaw and Mark Ford if we scroll down it says Dear Steven Mark and we have to go over the page please find attached a letter which we’ve received from mess M Musa Patel’s today inclosing an addendum defense case statement I note that the addendum defense case statement sets out the reference numbers of numerous reports at which the defendant apparently made it is the last working day before the trial and I am somewhat suspicious that the information was not disclosed in an earlier stage Steve could you please go through the addendum DCS and make such inquiries as you are able to today just pausing there do you think it was right to be suspicious um given that it had been you who had been pushing them to serve I felt that we had been ambushed I had certainly asked for particulars for assistance if you like but for particulars of what they were saying at earlier stages and this information which which could have been provided at an earlier stage was provided right at the last minute and as you recall from my evidence um this morning I said that I had written to the defense um specifically asking them um if they could particularize um any examples because I did not want to be in this position where at the very last minute um information was being received um just shortly prior to the commencement of the trial and and um obviously there was very little time then to look into it couldn’t you have made things quite a lot easier by disclosing concerns that have been raised with you about the Horizon system quite a long time before this email well when you say concerns which concerns do you mean well you were Prosecuting somebody for a criminal offense yes you were aware of a number of other cases raising issues with Horizon you are aware that an independent investigator was looking into it you were aware of another case with very similar facts did you not think that maybe we should provide a little more disclosure of those kinds of issues to the defense so by the time of this email I think the statement of Steven Bradshaw which dealt with the appointment of second site by post office limited had already been served and so far as other allegations that were being made in other cases were concerned I did not consider that they met the test for disclosure and you say precisely that in the next paragraph you say I have no intention of providing details of previous cases in which there has been an unsuccessful challenge to Horizon that information does not undermine the Crown’s case or assist the defense now your evidence before lunch was that you didn’t even look at the table relating to uh unsuccessful challenges to Horizon didn’t how could you have reached the decision that it doesn’t undermine the Crown’s case or assist the defense if you hadn’t actually read uh the document that had been sent to you well by virtue of the fact that they were unsuccessful challenges I didn’t feel that they would be disclosable did you not think that it was incumbent upon yourself to at least carry out a very basic level of research into those matters I I didn’t at that stage no I was under the impression that it was a table of unsuccessful challenges unfounded allegations and in those circumstances I did not um consider it further now we’ve seen the defense statement I don’t need to take you to the the addendum in terms of the timeline Mr ishack pleaded guilty to theft on the 7th of March 2013 and on the 22nd of April 2013 he was sentenced to 54 weeks imprisonment um I would like to take you to an email from March 2013 can we please look at poll 001052 09 this is an email the 26th of March so in between Mr eshach pleading guilty to theft and his sentencing hearing and it relates to Second site reports or the second site investigation um you’re advising johnell Singh and it said the subject is reh Horizon issues urgent and in fact perhaps we can look at Mr sing’s request that’s page two the bottom of page two Mr Singh emails Andy cash and yourself and he says Andy may I have your view on this why the post office cannot simply stay and hold fire in prosecutions where there has been an alleged Horizon issue yes or no can we stay something or is it all or nothing so Mr Singh seems to be asking for your expertise as to to whether or not uh all prosecutions can at that point be stayed is that your understanding of that email well it’s it’s it’s one potential reading of it um Mr Singh wasn’t always that easy to understand with the way he phrased things or discussed things but that’s certainly one way of looking and what is another way of looking at it just asking for general advice um why Paul cannot simply stay or should Paul simply stay um yes or now can we stay some or is it all or nothing um it seems to be asking for a general advice a general view doesn’t it so your interpretation is he may have been neutral on the matter and was asking for your advice well it’s it’s not straightforward is it um why pa Paul cannot simply stay that would be suggestive of the view that that was perhaps his opinion but then his further question is can we stay some or is at all or nothing so that is perhaps more open um as I say Mr Singh wasn’t always the um easiest to decipher and why do you think that was I think some of the some of his uh conversations or emails were less than clear and why do you think that was just on looking at them I mean looking at these two lines here is it your suggestion that he had some sort of Nefarious purpose or some other reason or or is it simply the language used I I thought I think I thought at the time it was the language used um but obviously as this has rolled on I think that he perhaps knew a lot more than he was letting on um let’s see your response on page one because if I can just say because up to that if you think about um his earlier Communications he has been very much arguing that the PO that the Horizon system is robust and that’s very much um the uh the phrase that I placed Reliance on um then of course with an email like that makes you wonder with hindsight exactly what was going through his mind and what do you think was going through his mind well I’m wondering whether he knew that there were more things that we didn’t know and um obviously he hadn’t imparted that to us um your response is as follows if applications were made to adjourn all existing cases until after the report becomes available uh this would result in a nightmare situation the fact that application to be made would send out the wrong message and it would be assumed by many that the post office had found and was trying to resolve a problem with the Horizon system whilst it could be made known that no problems have been found by the post office it is unlikely that defendants would believe such a statement I would expect there to be numerous applications for disclosure and extra hearings and extra costs so you’re advising against staying cases uh because it would lead to more applications for disclosure I think this was generally the the view of car Riot King I don’t think this was my specific view um I think this had been discussed internally and this was the firm’s view well we see paragraph three for example it says the best approach in my view is to treat each case individually so were you communicating your own views there well I I I believe that would have been my view after I discussed it internally the prosecution can commence in the usual way and upon receipt of the defense case statement any challenge to the Integrity of the Horizon system can be considered of course the first time we may get to know of a challenge may be in the defense statement if a real issue is raised the case could be adjourned until after the report becomes available the defense could apply for the adjournment and we would not object if however the challenge raised in the defense statement is flawed has no basis or Foundation or relevance and is clearly just an attempt to frustrate the prosecution the case can continue in the usual way it’s the same approach isn’t it putting the burden on the defendants to raise the issue of horizon to raise a specific issue um that satisfied some sort of test that would prompt action on the part of the post office rather than uh being open and honest with defendants when they raise the Horizon system as a problem well I don’t I don’t see it that way I I see this as um taking a case by case approach there were some defendants who had made F fullen Frank admissions in interview um and there were other defendants um who um the the the the Horizon system wasn’t of of relevance to their case how are you to know if it’s a real issue that’s being raised what was the criteria that would be applied for that I don’t think we set out any criteria how would you test if it was a real issue or not what would the threshold be that somebody had to raise uh in order for the post office to agree to stay their case I don’t think I considered that point I want to look at what happens after this and I’m going to move to the 12th of June and the receipt of what is the Helen Rose’s report that’s fuj 8681 um so the date there is the 12th of June 2013 can you recall when you saw the Helen report I don’t believe it was um it could have either been at the end of June or the beginning of July um I do recall that we were informed that the second site interim report was going to make reference to bugs um I don’t think at that point point we knew anything more than the fact that there were going to be references to bugs and then I think that either to about the same time or very shortly after um a meeting with post office’s legal team on Old Street in London the Helen Rose report surfaced I don’t I don’t think it was before that meeting I think it was possibly either at that meeting or shortly afterwards so I think in your statement paragraph three of your second statement you say that on the 27th of June um you had discussions regarding the second site interim report yes is it is it at that point that you were told about the Horizon the um the Helen Rose report or no I think I think I think the 27th of June was the date upon which I received a telephone call from someone in the post office legal team asking me about B it was phrased in such a way which imp they did not know of the bugs in Horizon and I and asked him what he knew of the bugs in Horizon and he also told me that he did not know of the bugs in the Horizon system so that was the start if you like of the second site interim report chapter but I I don’t know how soon after that that we received a copy of the draft interim report um I know it wasn’t published until possibly around the end of the first week in July I suspect that we may have received Snippets or parts of that information beforehand it was early July I I’ll take you to the various emails um let’s stick with the Helen Rose report you said that somebody phoned you up um from the post office yes do you recall who that was I’m afraid I don’t and I I don’t I don’t I don’t recall who it was I I I could guess but I don’t want to guess and get it wrong when Mr Singh told you that he didn’t know about bugs did you question that because he’d had rather taken me by surprise as well so I I I I it was apparent to me that from the way that the qu didn’t know about the bugs I was taken by surprise by reference to the bugs and I asked Mr singen and he didn’t know about them either so I just assumed that post office legal team did not know about the books and I’m going to very briefly take you to a couple of uh parts of this report if we look at page three please we’ll come to look at an advice that relates to this report but um she says for example in a in Rel ation to correspondence with Gareth Jenkins um I know you’re aware of all the Horizon Integrity issues and I want to ensure that the arq logs are used and understood fully by our operational team uh recommendations if we scroll down um she says for example however my concerns are that we cannot clearly see what has happened on the data available to us and this in itself may be misinterpreted when giving evidence and using the same dat data for prosecution so we we’ll come to look at um the analysis of the Helen Rose report before we do that can we please look at Paul 0014 2322 now this is a transcript of a conversation um with Gareth Jenkins and it’s Simon Clark and also yourself are on this call are you aware of how this came into being yes um Mr Clark had a case called Samra that was about to start I think before the Crown Court at Birmingham and he was concerned that as a firm we now knew of the existence of a report which we perhaps didn’t have at that point but we knew some of the content of in that it was going to refer to bugs and Mr Clark was clearly concerned about whether or not that would be disclosable in the proceedings in Birmingham and it was in those circumstances um we telephoned Mr Jenkins to try and find out some more information I think this is the 28th of June so that was probably the day after we’ been informed of the bugs so is that the day after the the telephone call from somebody in the post office and your discussion with jell saying uh yes and were you aware that the conversation was being recorded was it typed at the same time or how did this come about I’m not sure whether I recorded it or whether I typed it did you have a conversation with Simon Clark before about the kinds of questions that you’re going to be asking we’ll see that there are some very specific questions with A and B for example was it something that was planned I don’t recall discussing it with him um I’m sure he had something set out in his own mind as to what he wanted to to ask presumably Gareth Jenkins wasn’t told that it would be recorded or noted no he wasn’t he wasn’t um and it begins hi is that Gareth Jenkins it is indeed and we go on there’s an introduction from Simon Clark um if we could go over the page please I’ll just read to a few sections um so Simon Says uh the problem I’ve got is that we’re not allowed to see the report but we are told that there are up to 30 offices where bugs have been identified yeah and we know that Hearst Lane is uh not one of the branches where there’s been an identified bug still with us and Gareth says um right as I say certainly I’m aware of two bugs uh is it firstly uh is this something that has been done on Horizon on the new Horizon system or the old system and Simon says it’s Horizon online and Mr Jenkins says okay right so there is two bugs that we have declared to Second site in that sort of area um and um we know exactly which branches are affected and they wouldn’t have any impact whatsoever on that part of uh what’s going on on um and I think we’ve we’re confident that the audit trail that you were using for Pro prosecution has not been compromised by those bugs and then if we go over the page please about halfway down you’re introduced so Simon says um where are we going from here what’s the questions I posed earlier sorry I’ve got Martin Smith here with me as well he’s the solicitor in the case so were you the solicitor in the Sam case or was that a different case I I don’t recall I’m afraid I remember what the sumary case was about but I don’t know whether I was a sister in it or not it was a lady who was alleged to have been um making multiple transactions um using um the debit cards of pensioners suggesting the first transaction hadn’t gone through and asking the pensioner to rein put their PIN number so I do remember that but I don’t okay um and then he says um I know Martin hi Gareth hi hi it’s the Horizon system is functioning perfect can you assist us with what what you mean there is that the the the matter that you’re questioning whether it is functioning perfectly I really don’t know what that is supposed to mean Simon then says this is the other Point bugs have been identified in Horizon which call into question some of the aspects of the way in which it operates that’s a fair assessment isn’t it and Gareth says um yes then Simon Says yep okay how can we be sure that a we have identified all of the bugs uh that there are and B that although Horizon has been demonstrated uh that to be fallible that in so far as the case we are conducting is concerned we can eliminate the possibility of error and then the response from Gareth is right I mean clearly we can’t you can never say there are no more bugs in the system but we’ve got to be careful about trying to say anything like that but what we can show is that nothing has been found to show that there is a problem in the Integrity of the audit Trail which is what has been used for the um um your evidence and Simon says so your view is that um that if the defense were to suggest um that there’s a problem with Horizon and therefore we can’t rule out that there might be other problems with Horizon what you say is as far as you’re concerned the Integrity of the system is intact and he says yes did you have concerns real concerns at this time June 2013 about the reliability of uh the expert evidence that have been provided in court Mr Clark um certainly had some concerns at that point um because as as part of our conversations within car r King I provided him with a number of um reports that Mr Jenkins had prepared at cartright King’s request and obviously there we there had been a discussion about that um so yes that there was a concern at that point within c r King about the evidence given by Mr Jenkins you’ve seen there I mean you’re having a conversation with the man who’s given evidence in some of your cases ishack case Mr Jenkins gave two statements yes um there’s reference there to two particular bugs uh there’s reference there to you can never say that there are no more bugs did you personally not have a real concern about those cases that you were involved in I expressed concern to Mr Clark that Mr Jenkins had not raised those bugs during the currency of the um case against Mr isack um in fact I I do recall that when Mr isak had um suggested in his one of his uh defense statements that the losses were attributable to a freezing screen um I thought my personal view was that he was suffering rather large losses attributable to a freezing screen I thought if anything there was more to that and I specifically asked Mr Jenkins at court whether or not there had been a bug affecting Mr ishak’s branch and he had said not um and so by the time we get to this point um yes you are quite correct um I was concerned about Mr ishak’s case because Mr Mr Jenkins had said that there were there had not been a bug in his branch and here we are now being told of two bugs by Mr Jenkins um and I can recall discussing that with Mr Clark and I I I explained to him that um Mr Jenkins had said that there were no books operative in the branch and that um Mr isak had pleaded guilty Mr Clark’s view was well that wasn’t really to the point um those books should have been disclosed to him and did you at the time of recording uh that conversation had you put two and two together at that point that it wasn’t just there were these bugs but also that we have a problem with the expert that has given evidence in our cases yes that was discussed was that information disclosed in ongoing criminal cases so far as the ongoing criminal cases were concerned this was all this all happened in a very very short window um I believe that Susan kryon and Simon Clark discussed the position and decided that it was appropriate clearly in the circumstances to impose a moratorium on on um all new prosecutions so that there’d be nothing new entering the prosecution Pipeline and that in existing cases they would be reviewed by Mr Clark and depending on the nature of the case um it may be appropriate to um terminate it in the absence of a new expert was there not a real sense of urgency at that point having found out that information well I think all this happened within a couple of days I mean Mr Clark’s advice was only on the 15th of July so a couple of weeks later you had been involved in the E Shack case a man had gone to prison did you not think then and there I’ve got to do something urgent about the cases that I was personally involved with I I I I I do recall expressing my absolute um well I was actually quite upset about the position that um there had been bugs which hadn’t been disclosed in Mr isak’s Case um and I and I I remember actually feeling quite angry about that because a man had gone to prison and um quite frankly those um those those those books should have been disclosed um I asked Simon to review the case um as a matter of urgency and I and I believe that he he did within within the next day or so I I I certainly have it in mind that it was reviewed very quickly why did you need Simon Clark to review the case why couldn’t you who had conduct of the case then and there do something about your anger well I I just thought it was appropriate to have a senior barister dealing with it [Music] um can we please look at poll 0000 60572 we’re now on the 30th of June um John L Singh is passing on information to various colleagues at the post office and if we scroll down he refers there to the case of isach at the top he then refers to a case the Dixon case and he says it follows that in some cases the Integrity of the Horizon system has been challenged by the defendant in other cases the Integrity of the Horizon system may become an issue notwithstanding that there has been no specific challenge he then says um the Samra case above in Birmingham involves Horizon so that’s the case that you were talking about yes with Gareth Jenkins Samurai is accused of Performing unauthorized transactions on the post office’s current account of a number of vulnerable people she has consistently denied any wrongdoing and the primary evidence against her is taken from the Horizon system and it’s this paragraph next that I want to ask you about it says Simon Clark prosecution Council and Martin Smith spoke to Gareth Jenkins on Friday the 20 8 of June he told them that he had only volunteered information about two bugs present in the system to Second site he also told them that those bugs would not have affected the Integrity of the data being used in the Samra prosecution if I may speculate a little here Gareth Jenkins only told second site of two bugs the post office only knew of two bugs it seems therefore unlikely they would find other bugs without Gareth Jenkins knowing about it due to the mechanics of the system reporting and the checks and balances already built into the system it looks likely that second sites report will focus on these two bugs just pausing there do you think that is a fair reflection of the conversation that you had with Gareth Jenkins on the 28th of June well no it it isn’t is it one thing it doesn’t suggest is for example the unreliability of Gareth Jenkins and the evidence that he has given no it also doesn’t um refer to that paragraph We saw about never saying that there aren’t more bugs in the system no and it’s also confusing in that well I don’t I don’t I don’t really think I necessarily follow this if I may spe UL at a little here Gareth Jenkins only told second s of tuugs the post office only knew of tuugs that that’s um that’s contradictory to the information he told me and it says it seems therefore unlikely they would find any other bugs with well I don’t I don’t know where he’s got that from because that certainly wasn’t um that certainly wasn’t discussed um with uh with Gareth Jenkins on the 27th of June 28th of June so the the question that arises from that is did you provide John El Singh with the level of detail uh relating to the problems that Gareth Jenkins had told you about or not we would certainly have communicated with um Mr sing and um kept him informed of developments I mean after all he was head of criminal law and your real concern concerns about the reliability of Gareth Jenkins had you by then the 30th um of June passed those on because there’s no mention in that paragraph summarizes the conversation but doesn’t mention uh issues about the reliability of evidence do you think that you did or didn’t pass that on to uh Mr Singh I I cannot recall um what I said to Mr Singh then continues it’s not possible to ignore the fact that second SES May report in the immediate future similar it’s not possible to ignore the fact that there may be high-profile debates relating to the Integrity of the Horizon system this coming week prosecution Council proposes to mention the position in private to the judge in the samur case in his Chambers on Monday morning uh the post office as a public body has to be open and honest for the judge to ensure fairness to elderly Witnesses prosecution and defendants whose Liberty is at stake um why mention it to the judge in private I was being guided entirely by Mr Clark in relation to this um and he he was he was um Prosecuting Council in that particular case and he advised us to the best way forwards in relation to this particular issue that had Arisen um I mean putting when when the expression in private is used do I take it that that simply means without the public being present it doesn’t mean without the defendants Representatives being and Mr Clark explained to the judge from memory um that there was a report which he was not yet in all right sorry Mr Blake for jumping in not at all um why not mention that in open court spent dealing with Defense work I had then started dealing with prosecution cases on an agency basis appearing in court for particular hearings and then reporting back and then this was effectively a new chapter of um of work actually dealing with prosecution cases and Advising in relation to them um and quite frankly I was Greatful for any guidance that I could get internally within cart Wright king um and this was um this was uh Mr Clark’s advice and so that’s what that’s what he did and I went with him so the he you had worked for cartright King for six years by this stage yes was the training so inadequate that you had to rely on Mr Clark in this respect well I was quite well there had been uh no training in terms of prosecution work at all no training at all that that for example a a CPS lawyer might get internally at the crown prosecution service um we’d been on no courses um and I think also the perception of the firm was that it would be more appropriate so far as post office were concerned to see a senior experienced barrister advis vising one who had had much experience of both prosecution and Defense work so he he was the one who took the lead a reading of this is that it would suit the post office because it wouldn’t be publicized did you understand that to be the position well no uh I didn’t and in fact when we had the conference with Brian Alman um KY um he was very clear that he would not have dropped the summary case was going to end up in the public domain um it was it was always going to be published it was always going to be made public and it was going to be disclosed in other cases the fact here is not a case of trying to prevent that report from being provided um it was going to be provided through other Roots As I understood it Mr Clark’s concern was that he could not comply concern that it had been arranged by Parliament or organized by Parliament and parliamentary privileged attached to to it I remember a conversation along those lines and he was quite clearly unwilling to um say very much about it is that a conversation with Simon Clark start releasing information from it or I I don’t know whether we had the report at that at the point of um the application or or or just a part of it or just information in um which we um either didn’t properly have or or couldn’t provide when it was yet to go to MPS the day before um publication do you think that there was email correspondence on that issue well certainly not between between myself and Mr Clark no um as as I see it this was a case of um Mr Clark saying we cannot comply with our disclosure obligations at the present time in relation to this imminent case um this was a case which involved as it says here a um a fraud if you like involving numerous elderly people who had had their cash cards um used twice to their knowledge well without their knowledge once with their knowledge and once without um one possibility was to seek an adjournment that adjournment would be likely to be quite some time and of course one would have to consider the the effect of an adjournment on a decreasing number of victims because of their vulnerability in Age and and so this was never a case in my view of not wanting to disclose the second site interent report as I say that was always going to end up in the public domain via one route or another this was a case of Mr Clark saying I cannot deal with my disclosure duties here and now at this particular point in time it’s also I can’t tell anybody that it even exists well we told the say we Mr Clark apart from explained the position in in Chambers to the judge and I understand that that if I remember correctly that that um application was recorded can we please have a look at poll 001 908 43 actually sorry if we could start with poll 001 90842 and this is an email from Hugh Flemington to yourself and he says please find attached a first rough draft from second site of one half of the interim report this will be supplemented tomorrow by a section on spot reviews please would you let us have uh you material and significant concerns on this first thing tomorrow morning please if this timing is not possible please shout as soon as possible um and we see there the attachment is the interim report volume or version sorry 18a if we look at poll 001 9843 so this is the 4th of July um and this is the version 18a that was attached to that email if we could look please at page six page 6 6.4 6.5 6.6 these are the um receipts and payments mismatch and local suspense account bugs that uh we’ll see in the final version of the second site interim report and if we scroll down we can see various other concerns that are raised relating to the Horizon system over the page please under thematic or systemic issues and various issues that have been reported by sub postmasters um that was the e to be disclosed in any case the decision would need to be taken on a case-by Case basis raising in relation to the private hearing before the judge uh that is on your part and on cartright King’s part a concern about adverse publicity is going to end up in the public domain that application was made because Mr Clark was concerned that he could not properly discharge his disclosure duties and clearly this is an email that both myself and Mr Clark have put together um because as you’ll see next to the um yellow Square that’s on the left hand side it’s our advice overall um this is very much the the The Stance of um cartright King myself and Simon Clark having discuss the position yes the concern that I mentioned in relation to the hearing before the judge is a concern to have it in private not about what would be said but the concern about adverse publicity did you not recognize that that might be a concern not in relation to that hearing no I just assumed that was the correct way to go about things because that was what Mr Clark advised and sticking with this email um is your advice relating to adverse publicity and speculation is that similar to where we started today a confusion between the post office’s private interests and legal requirements no I don’t think it is um I think the danger with with disclosing a partial report is the only disclosing part part of the the um the picture isn’t it best to see the entire report and then make decisions but why should publicity be a concern of somebody who’s advising in Criminal prosecutions I think this sorry can you just scroll up what’s the date of this email the 5th of July so this would follow a meeting which had taken place at the um headquarters of post office limited which at that point were an old Street in London and I think at that point post office was expressing concern that um that there could be adverse publicity and Keen to avoid speculation so it was the post office rather than so I I think this is going back to the the concerns which would have been raised at that meeting so I think our our approach to this would have been that it would be better to await the full report and then make decisions rather than start to disclose bits of a report and have adverse publicity and speculation in relation to the gaps and then having said that the second site report would not need to be disclosed in every case that decision would be taken on a caseby casee basis in many cases it will not be disclosable is that right I think where we were at the time that was our thinking you had had that conversation with Gareth Jenkins where he said there might be more bugs uh that caused you real concerns about the evidence that he had given in criminal prosecutions and his reliability um do you think that such a strong line could really be taken well if you if you look at the um f review process that was subsequently undertaken um I think after the total number of cases which were reviewed the the second site interim report was into was was disclosed in a proportion of them so I think the view that we took within kri King at the time is that it certainly wouldn’t need to be disclosed in every case um but depending on what it contained a decision would have to be taken on a Case by casee basis and that is absolutely an issue that we’re going to be coming to in due course um can we please look at poll 00297 237 please just to assist us with the timeline in fact it was the very same day um an hour later that you receiv received the full report um full draft report still so that that would have been the second half relating to spot reviews we can see there Ian Henderson at the bottom is sending the latest version version 24 of the draft report and if we see at the top Rodrick Williams has sent it on to you can we please now look at poll 000000 6545 and Page four the bottom of page three onto page four please we have an email from yourself to Hugh Flemington and you say dear Hugh please find attached a copy of the letter with which we proposed subject to your agreement to send to ishak solicitor so this is the 10th of July um I think your evidence before was that quite promptly you did write to ishak’s solicitors and this is that correspondence yes I I couldn’t remember how promptly but um it certainly predated the the file review process um I I think I was so concerned about Mr isak’s case that I actually circumvented the um sifting process um I didn’t see the point in putting it through a sift I knew it needed to be reviewed and and I brought it to Mr um Clark’s attention for it to be reviewed so this was um something that was um dealt with if you like outside of that um the main file review process can we please look at the draft letter it’s poll 0032 3836 so in April 2013 he had been sent to prison this is a letter in July now I’m going to read to you that letter it says we write your firm as being the solicitors on the file representing this defendant in the proceedings which resulted in him receiving a term of 54 weeks imprisonment for an offense of theft on the 8th of July a report into the operations of the Horizon system was published by an independent organization which had been commissioned by our clients post office limited the report is known as the second site interim report we have also received and considered a second report concerning an investigation into an incident at another post office the Helen Rose report we have thoroughly reviewed both the prosecution case and that of your client and in particular his defense statement and addenda defense statement in the light of material contained within the second site interim report and the Helen Rose report we have also reconsidered our disclosure duties under the criminal procedure and investigations act 1996 and the code of practice enacted thereunder and the Attorney General’s guidelines on disclosure we have formed the firm view that had the prosecution been possessed of the material contained within the two reports during the currency of the prosecution of your client we should and would have disclosed that material to you in compliance with our disclosure duties over the page please accordingly we now disclose those reports to you so that you are able to consider whether your client may have grounds for an appeal against his conviction we would also remind you of your duty not to disclose this material to any third party other than your client in particular the Helen Rose report is not in the public domain um so the proposal is to now disclose to Mr eek’s solicitors the second site interim report and the Helen Rose report is that right yes um no apology in this letter correct there is no apology in that letter no um no reflection of any wrongdoing or concerns about um material not being brought to Mr eek’s attention that really should have um no no apology for that no the letter is as you’ve read it um and it ends with no sharing allowed in relation to the Helen Rose report is that again a concern about the publicity that that might might raise uh I have um I didn’t consider that point um the is the letter as Mr Clark prepared it if we could zoom out please just to look at the the entirety of the text is there any reference in the that letter to concerns about the reliability of Gareth Jenkins no there isn’t do we find also attached the list of cases relating to Horizon concerns that had been prepared by Helen Rose back in October 2012 no why were the second site report and the Helen Rose report considered to be sufficient at this point in time I was um unaware of the content of the spreadsheet and the um first Helen Rose um document um and these were the documents that we had um been uh provided with we are also concerned about um a witness in your case who was referred to as an expert witness who uh we believe gave unreliable evidence is that set out there no it isn’t do you know why not I’m sorry I can’t answer that question I don’t know as somebody who was involved and a firm that was involved in the original prosecution uh do you think cartright King were the right people to determine how much additional disclosure should now be provided to Mr ishack at the time yes I did think um it was appropriate um I remember Mr Clark explaining around the the 3rd of July meeting in London that it was not inappropriate for a prosecutor involved with a case to review the case to determine whether further disclosure ought to be made can we please return to the email chamie saw just a moment ago poll 000000 6545 we looked at the final entry in this chain which was um you sending this draft to the post office can we please start on page three this time um rodri Williams sends you a response thanking you and says first point we presume that Helen Rose’s report is being disclosed because the post office’s evidence in the prosecution included an arq report is that right second Point Helen Rose’s report is marked confidential and legally privileged uh I understand that she did this because she prepared the report to give to post office legal for legal advice on the implications of her investigation uh please therefore consider what information from the report needs to be disclosed to esek solicitors and in what format I.E whether parts of the report should be removed or redacted uh or the non-privileged material repackaged for disclosure to the defense if you advise that Helen’s report does not attract any privilege please ensure reference to privilege is removed um we’ll look at the other email in the chain but just pausing there I mean what was your impression of um how open the post office were to providing disclosure to Mr eek at this time it’s difficult to recall but my impression was that they were content to follow Mr Clark’s advice um if we turn to page one it’s an American format of the date it should be the 11th of July um for those who are interested we have another version of this it’s at poll 0032 3841 it doesn’t need to be brought up on screen but that shows it as 11th of July and which makes sense in terms of the sequencing yes um you’re emailing rodri Williams about privilege and you then have a section why Helen Rose’s report is disclosable and you highlight features um such as those that rather suggest that there may be Horizon issues plus training and support deficits and you highlight the reference there to Horizon Integrity issues and say this is an alarming statement for it is suggestive of the existence of horizon issues and that they were known to Gareth Jenkins this has obvious implications for Gareth jenkins’s Court reports and appearances and his silence therein and and note that that as I say was not referred to in your draft and I think you accept that if we scroll down we see there paragraph three um you refer to Helen Rose’s ultimate conclusion is that this is not an issue which is which suggests a failing in Horizon itself rather it’s an issue of data presentation um whilst to a degree that is correct given what I have said in one and two above that view may not be entirely sustainable it may be suggested that the report is at the very least suggestive of horizon issues and then you go on to say the report in general terms reinforces the impression that Gareth Jenkins is not being entirely forthcoming about Horizon issues an example of this approach may be found within his response to Helen Rose’s first question where she asks also could you explain what happens when the system fails uh Gareth Jenkins does not begin to answer this question he simply responds the system is behaving as it should if the system is behaving as it should then the answers I reproduce in my point1 above are inexplicable five some may conclude from this that Gareth jenkins’s aim is to protect her risen from criticism rather than to provide the post office and the court with impartial and honest evidence in view of these matters I think that the information contained in the Helen Rose report meets the test for disclosure it should not be forgotten however that information would only meet the test in a limited number of cases I.E those where the defendant had conducted reversals and was blaming Horizon just pausing there is that right I mean again we’re seeing an email from yourself that is narrowing the number of cases in which this needs to be disclosed Ed well you say it’s from myself it’s from myself and Simon as you’ll see how it’s it’s signed off this is this is a joint effort and um I’m clearly taking advice from Mr Clark I mean sent by you it’s sent by me but if you have a look at the screen at the moment under kind regards it’s is Martin and Simon yes so this is clearly a joint piece of work does that make it any any less troubling um what it means it means means that I am clearly taking advice from a senior in-house Barrister um about the position it then says accordingly you may take the view that I should attempt to in view of the matters I’m in no doubt in fact it says I there rather than we but it does we can put that to one side uh that this document is disclosable on the lpp point I rather fear that if the matter were to come before a criminal court the judge would without hesitation order disc closure in the appropriate case accordingly you may take the view that I should attempt to redact or summarize the report into a disclosable document and in a form which serves a dual purpose of both disclosing that which should be disclosed whilst protecting the non-disclosed sensitive material um in your well first of all by this date it seems as though you are getting quite concerned about how candid the post office have been is that a fair summary of the contents of that well this this Helen Rose report has clearly now arrived and it’s in addition to the um two bugs referred to in the second uh site interim report so there is another report to deal with um I don’t think I gave it much more thought um I can recall that it was Mr Clark who then went on to redact the Helen Rose report before it was sent out and it was Mr Clark who then drafted the letter to be sent out to the intended recipients um at paragraph 14 on page five of your second statement you very candidly say that you were unaware of the postc conviction duty of disclosure is that correct yes I wasn’t aware of that I mean wasn’t that precisely what you were being asked to do by rodri Williams to consider such duties I I I became I became aware of the post uh conviction duty of disclosure upon discussing Mr isak’s case with Mr Clark um because I I pointed out that Mr Jenkins had said that there had been no bugs in the branch and Mr and Mr Clark’s view was that well this is still disclosable because it would give uh Mr esak the opportunity to argue that there were perhaps bugs as yet unknown to post office and therefore this should be disclosed I I I had not been in this situation before needing to consider um post um conviction disclosure I was simply unaware of that is that of concern given that you had been involved in quite a few criminal prosecutions um for a number of years by that stage well everything was going to be reviewed wasn’t it that was the point we were then going to review things but was it of concern that you a uh person who had conduct of cases a solister who had conduct of cases wasn’t aware of the test for disclosure once people had been convicted um I didn’t see it as a as a concern um I regard it as as professional development do you see it as a concern now that you Le aware of that test I do yes thank you so that might be an appropriate moment to take our midafternoon [Music] Break um if we could come back at 25 past please yes certainly um just before we go though um and stop me Mr Blake if you’re going to continue to pursue this but I’m still baffled about how it can be uh Mr Smith that um you quite rightly take the view that um the Helen Rose report and the second site report should be disclosed but there doesn’t appear to be uh any consideration at all about the disclosure of your um discoveries relating to Mr Jenkins if I can put it in that way because in particular in relation to the Helen Rose report but really in relation to both all of those matters are inextricably linked are they not I cannot recall sir any discussion within the office about disclosing information with regards to the position with regards to Mr Jenkins I don’t recall that being discussed at that point or indeed but that in itself is um let’s just say surprising is it not because you have your conversation with Mr Jenkins on the 28th of June that immediately erases alarm bells one would imagine and I I think that’s the purport of your evidence we then get sequentially second site and uh Helen Rose in quick succession literally within a short couple of short number of weeks from the discussion with Mr Jenkins and on the 15th of July Mr Clark actually puts in writing in unequivocal terms his very many misgivings about Mr Jenkins so it does seem very odd that um this isn’t a topic of discussion in particular in relation to what you’re going to do about Mr isak who may or may not still have been in prison at that point anyway there we are 25 two sorry um so I think Mr may just sir would you like me to revisit that after the break Yeah by all means think about it uh well I I can answer it now but I’m I’m aware that a break yeah go on WE we’ll extend the break till 3:30 you answer it okay thank you so there was there was there was literally um no discussion as I recall about disclosing information about uh Mr Jenkins and when we subsequently went to see Brian Alman Casey um to discuss the file review process and the letters which were being sent to others with regard to uh post conviction disclosure I don’t recall it being mentioned then I don’t recall it being suggested that a paragraph should be inserted to deal with Mr Jenkins well no doubt that is an issue that will be taken up sequentially with the lawyers who come after you Mr Smith thank you thank you sir half past e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e thank you sir um moving on to the criminal cases review commission can we please look at poll 00003 3 9994 they send a letter on the 12th of July 2013 so the same time period as the documents we’ve just been looking at around the same time as that letter was being drafted to Mr isack if we scroll down please it’s sent to Paul of ennels and it says for obvious reasons we have read the recent media coverage concerning the post office off Horizon computer system with interest clearly it would be very useful for us to have more information directly from the post office especially accurate information as to the number of criminal convictions that might be impacted by the issue and what action is proposed or being taken in that respect um so this is in following the publicity relating to the second site interim report could we please turn to poll 00003 9998 do you recall as a firm being tasked to respond to draft a response to the letter I think we were well it would appear that we were but I don’t recall it we have here an email from yourself to Susan kryon um Susan please find attached documents repaired by Simon in response to the letter from the CCRC and if we scroll down we can see Simon Clark here with my response to the CCRC letter the PDF is simply a brief discussion of ccc’s criteria the word doc is a draft response for po if they think it may assist um do you recall it if this was something simply volunteered by um yourself and Mr Clark or whether it was something that was specifically requested by uh Susan chry or something else I’m afraid I can’t remember could we look at the first document that was attached and that’s poll 00 [Music] 39998 sorry um poll 00003 [Music] 9993 do you recall seeing this document this is attached to that email that you sent to Susan kryon I don’t know whether I considered it in any depth do you recall why this was prepared I would imagine that uh Mr Clark was simply uh providing information at the request of post office limited and the legal department but I don’t I don’t I can’t Rec call having anything uh really to do with this aart from sending it on can we look at the other attachment and that’s the draft response it’s poll 0000 [Music] 39995 these are the draft paragraphs for insertion into the reply I’ll just read to you a few sections from this the second paragraph halfway through it says the detection and successful prosecution of such offenses is almost always dependent upon a proper analysis and presentation of horizon data and accordingly it’s imperative that the integrity and operation of the Horizon system is demonstrably robust in many prosecutions the defense will fall into one or more of the following categories and then number of categories are identified and then it says as follows it says where a defendant asserts rightly or wrongly that Horizon is at fault it is for the prosecution to demonstrate the Integrity of the system and the evidential audit Trail derived from Horizon just pausing there is that the approach that you think the post office took over the years that it’s for the prosecution to demonstrate uh the Integrity of a horizon or do you think from what we’ve seen already today that there was a fair bit of a burden put on the defendants themselves to particularize their complaints no as i’ as I’ve said in my statement um my second statement the approach taken by cartri King was not to obtain a report in every case where there was a suggestion that the Horizon system might be at fault or someone explained loss um the approach taken by the firm was a sort of wait and see approach and if the defendant um didn’t plead guilty then uh a report would then be sought which of course is something very different then says this is usually accomplished by the serving of expert evidence for many years both the Royal male group and Lally the post office has relied upon a single expert witness provided by Fujitsu Services Limited The Horizon manufacturer maintenance and support contractor that witness has provided expert evidence in many cases where the defendant has asserted irregularities The Unexplained shortfalls as to the operation and integrity of the Horizon system he has done so both to the post office and in expert witness statements and oral evidence to the court in particular he has attested to the presence of defect detection and rectification systems the robustness of the prosecution audit Trail and stated that in his expert opinion Horizon accurately records and processes all information submitted into the system at the second ite interim report demonstrates that this was not the case um what isn’t mentioned there is your real concerns about the reliability of uh Mr jenkins’s evidence is it no there doesn’t speak to anything there about that no um if we continue mean Simon Clark’s advice on the reliability of Mr Jenkins was the 15th of July so the day before this draft was produced do you think it is surprising that this letter to the criminal cases review commission but looking back I I take the view it it should have contained information relating to Mr Jenkins actions taken by the post office post office accepts that a number of criminal convictions may be impacted by the matters highlighted in the second site interim report and has taken early and determined steps to identify those cases where such um an impact may fall so there’s mention of Second Sight here but there isn’t mention of the Helen Rose report either is there no that doesn’t appear to be and then the next paragraph to that end the post office has instructed an independent firm of criminal specialist solicitors to identify every criminal case prosecuted by the post office and Royal male group prior to their separation and in any event in the last three years so as to determine in each case the answer to that question um instruct an independent firm of criminal specialist is that correct uh that would be um cartright King and having prosecuted a number of those cases do you think it’s fair to describe um cartright King to the CCRC as an independent firm of criminal specialist solicitors well I guess the answer that is we were independent of post office so we weren’t uh within post office’s legal team and we were external to post office but of course we weren’t um independent of the actual prosecutions because we had conducted a number of them if we could go over the page to page three please um if we scroll down number of impacted cases it says where Council has advised the possibility of grounds to appeal letters have been written to solicitors who defended informing them of the issues and providing copies of a second site interim report and such other material as they ought to have received during the currency of the prosecution uh had we then been possessed of that material it would then be for the defendant and his lawyers to determine whether or not they wish to launch an application for leave to it the out of time we would certainly support grounds to allow the application out of time again reference there to the second site interim report but no mention of Helen Rose reports or any other specific information set out there in that draft letter is that correct yes I I don’t talk I also think looking at that paragraph it’s saying letters have been written to solicitors who defended I’m I’m not sure letters went out that promptly and it concludes um thus far we the review has identified no cases where the defendant has sought the leave of the court of appeal to appeal against his conviction one case has been identified where the defendant sought and was refused leave to appeal against his sentence um sorry if we go over the page please we then have magistrates courts convictions a section on that and it’s the final passages of this draft that I want to now ask you about it says we take the view that it is incumbent upon the post office as a major public institution to take every reasonable step to ensure that only the genuinely guilty are convicted and that those who are or may have been convicted without good reason have every opportunity of correcting such a miscarriage of Justice um do do you think that that fairly reflects the the very narrow approach that seems to be taken to disclosure of matters that are well known by this stage to the post office well at this point in time there were very few matters known there were simply the two bugs and the Helen Rose issue the Helen Mo’s report um in my mind so you had sent this draft it seems to be authored by Mr Clark but you had sent it to the post office yes presumably you read it before you sent it I don’t know whether I did or not would it be typical of you just to forward things to the post office or would you consider matter such as a response to the criminal cases review commission relating to cases that you have prosecuted now if if Mr Clark had drafted something um I would have trusted him and forwarded it you are sending a letter to the post office which makes absolutely no mention of uh the kinds of concerns that the post office had at that stage about Mr Jenkins within days of Mr Clark’s actual advice on uh the impact of Gareth jenkins’s evidence and it isn’t meant mentioned do you think that that is of some concern about how open and transparent um your firm intended to be with the criminal cases review commission I don’t believe I gave that any thought at the time it seems to me that I’ve simply forwarded documents can we please look at poll 001 39730 [Music] so you were simply forwarding documents on the 16th of July relating to the criminal cases review commission we’re now a few days on 19th of July you’re attending what is called a a regular call regarding Horizon issues is this the first of those meetings I believe it was yes and it then became a regular call relating to Horizon issues yes they were weekly to start with an then some at some point in their future they became fortnightly if we scroll down please um Rob King who’s a member of the security team says as follows the not is as follows no minutes circulated but we will be taking notes so it seems as though there there is some sort of direction that no minutes from these meetings will be circulated is that something you recall well dealt with this in my witness statement um I recall that one of the civil lawyers from Bon Dickinson explained um virtually straight away after Mr King had spoken the reason for this and he was clearly talking from a disclosure position in civil cases he said that he’d had previous experience of this and that he was concerned that um if minutes are circulated by email they then um elsewhere away from the call and so whilst he was concerned about that I considered that from a criminal perspective um in in London at the meeting Simon Clark had been very careful to advise the legal department of post office what their obligations were and what their duties were from a criminal disclosure point of view and that a central Hub should be set up to colate information and that then I was equally concerned that we could be faced with a situation where there could be several mini hubs of information containing various amounts of information which might or might not be correct and going forwards that would make a disclosure exercise very very difficult and also difficult to instruct a new expert if there are different hubs of information so I understood the rationale for that let’s see where you’re mentioned if we scroll down it has your name the next box and it says confirmed it was good Horizon wasn’t discussed at length during interviews under caution and also the use of template statement would like to be appraised of developments regarding interviewing and to have sight of statements and scripts and then it says this it says clarification on disclosure and email correspondence emphasize need to ensure that any document produced would be potentially disclosable um so is that you there emphasizing um that any such document that was produced would be potentially disclosable I well I don’t think this um this is correct um I believe that I spoke towards the end of the call not at the beginning it was uh Mr Parson who spoke after Rober king um he was concerned about inaccurate information being generated and when I spoke I explained that any any information generated obviously needed to be accurate um and un kept because it may well be disclosable we see there two entries from Mr Parsons the first one says as follows commented on the need to limit public debate on the horizon issue as this may have a detrimental impact on future litigation and if we scroll down over the page to page three the near the bottom of page three the third entry from the bottom we see another entry summarizing um something that he has said to have said which is spoke about emails written Communications Etc if it’s not if it’s produced then it’s available for disclosure if it’s not then technically it isn’t what did you understand by that well I understood him to be talking about pre-action disclosure in um civil cases nothing to do with criminal litigation and criminal law um post office had already been advised from a criminal perspective quite thoroughly by Simon Clark they’ accepted that advice they’d set up this call and he was a civil lawyer on the call clearly not offering criminal law advice because he’s not a criminal lawyer um but clearly looking at the position from a civil law perspective he spoke at the outset of the call about his experience in previous cases where he’d had nasty surprises when he’d done trolls of emails and found information that um I think was incorrect or something like that so clearly what he’s saying there is is is basically a warning because if people aren’t committing things recklessly to to to um to to paper or if they’re not um um recklessly writing emails then it obviously makes the the his job easier what about the first one um page two in the middle commented on need to limit public debate on the horizon issues as this may have a detrimental impact on future litigation I mean was the advice that was being given um if not by then by Mr Parsons at this meeting uh one of limiting what is said about Horizon issues I don’t recall the meeting and I made I generally made um copious notes um which I left at car right king um my understanding was that he was concerned about incorrect information being discovered on email trolls then going into the public domain through pre-action disclosure um and of course if people have been guessing or speculating or coming up with incorrect points well I I guess his point was that’s equally disclosable in in a civil case and could cause damage to post office what’s noted here though is much wider than that isn’t it it is need to limit public debate I don’t recall that and if we scroll up the first page Rob King no minutes to be circulated I mean that must have been of concern M well it would have been had uh Mr Parson then not explained his rationale for that I mean let let’s just look back at everything that we’ve discussed so far today uh you were involved in the criminal prosecution on behalf of the post office in a number of cases yes correct um you’ve prosecuted people resulting in some cases going to prison certainly Mr isacks correct yes yes um irrespective of your knowledge at the time you were Prosecuting you have by now found out that there was a lot more information about bugs errors and defects in the Horizon system than you knew at the time is that right well at this point in time we have knowledge of the Helen Rose report and the second site draft interim report yes and you’ve also learned about concerns that an expert witness who had been giving evidence in your prosecution s um knew a lot more than had come out in evidence about bugs errors and defects yes you read the Helen Rose report by the stage correct um I believe so yes uh you’ve been sent a draft response to the criminal cases review commission uh which makes no mention of a number of those matters is that right yes and now there seems to be a discussion about limiting the amount of information in the public domain does that not cause you real concern at this stage well no it didn’t because Mr Clark had advised that there be a central record and as I understood it a central record was going to be created um that that’s that was the purpose of this call and quite frankly I was content for there to be a single Central record not several C records why no minute circulated well as I say that had already been explained because people then can forward them on and um that could then attract other opinion get then get forwarded on to others and I I think it was a sort of described as a sort of spider effect where it can crawl and you don’t know where the uh the emails end up and you don’t know what’s been added to them um so is the purpose of the central store not to make sure that everybody had access to Central material but to keep everything away from being distributed well no that that’s that’s that’s the Pips of the central store was to ensure that everything was collated in one place that would be then uh interrogated for disclosure purposes and it would also mean that instructing any new expert there is only one single Central store be sent uh to that expert and as I understood this um if there were applications for um pre-action disclosure and I don’t know that much about civil litigation but again there’s a single Central store for that I think the the point that we had in mind was that it would actually um serve both camps if there is one single Central store the minute that you start having emails being circulated with people then being able to add um to those email chains in a way that wasn’t visible to the Central store the minute you start to not have full visibility of the of of the issues which perhaps ought to be recorded in the central store so at that point in time um I was not actually concerned about that can we then look at document retention and destruction post 19th of July and can we look at poll 0013 9745 please this is a discussion that took place on the 1st of August 2013 is this your note yes yes my my details are in the top right hand corner yes so it seems as though you had a telephone call with John Scott on the 31st of July 2013 is that correct no that’s not correct when did you have a discussion with John Scott wasn’t it wasn’t a telephone call with John Scott um JS here would be John El Singh so this was a a note that I made on electronic file 37142 on the 1st of August 2013 relating to a telephone call that had taken place at approximately 6:00 p.m. the night before the 31st of July um and as you’ll see here um the summary cuts off but there’s more detail in the lower section um Jay Scott has instructed instructed that the type to minutes be scrapped there was obviously a lot more to that call because as you can see from the time recording at the bottom I was engaged on that call for some 24 minutes it’s a summary that’s there it’s very important for this inquiry um to know what you Rec call about that discussion and the words used can you assist us um I think I’ve I put this in my second um well both witness statements because I could see my first witness statement this was something that was going to be of relevance I was actually driving at the time when I took the call from Mr sing and I can call complaining to him um about the um influence being exerted over post office in my view by the civil lawyers the external civil lawyers and I can also recall him telling me um that an instruction had been sent out and that if anyone that that that the type minutes should be scrapped and that if anyone asks then cartright king would be blamed for providing that advice or were to that effect um to record at a distance the the latter part of the conversation because I was just so shocked by by what I’d heard I can recall relaying that to Mr Clark I’m afraid I can’t really recall much more about precisely what was said but I remember that I relate to Mr Clark the concerns that Mr Singh had that I had and the comments made um and and and it and it from memory this was just after the 3 Wednesday morning call so there’ been a a space of about a fortnight since the first call um no minutes were being circulated and I can remember saying to to to uh to Mr Singh I could I could appreciate the reasons for that and quite frankly that actually wasn’t necessarily A Bad Thing from a criminal law perspective if it meant that there was a single Central store which was accurate um it made our life much easier to just go to one place rather than having to wonder if there was information in several places the same approach was adopted on the second call but I can recall by the by the third call there was some form of change proposed I don’t remember I’m afraid exactly what the change was but I do remember um saying on the call no hold on you still have to keep a central record and making the decision that I would ask Mr Clark to prepare a formal advice to post office so that it put absolutely in black and white their obligations and confirming effectively what he had told them at the very first meeting the advice that they had had access accepted uh and acted upon to set up that that Wednesday morning call and I was actually concerned that post office had accepted that advice and acted upon it but in my mind it was the actions of the civil lawyers that were now trying to um water that down and and move away from that situation and I I’m afraid I I took the view that that was the must have been the actions of of the civil lawyers having an influence there because post office had accepted the advice that Mr Clark had given to set up that call to have a central Hub um I took the view that they’ accepted that advice and were acting in good faith to do that and therefore formed the view rightly or wrongly that it must have been then the the function of the civil lawyers the effect of the civil lawyers who were then trying to pull away from having that Central Hub and I considered that by the time we got to the third Wednesday morning call first of all did johnell Singh tell you that this was on legal advice or or did you not have that conversation you’ve said a number of times it was the advice of the civil lawyers is that an assumption or is that something you were told s sorry that was the no um I I I I assumed when I was talking to John El SN that it was the advice of the civil lawyers to move away from having everything anything in writing because we’d gone from having sorry we’d gone from having a situation where um minutes weren’t going to be circulated but a central record was going to be kept notes were going to be kept uh I was expecting some form of like minutes or a spreadsheet or or something that would be documenting the the the um issues arising in accordance with Simon Clark’s advice which had been accepted so um the the the second meeting took place uh again there was the same sort of discussion at the beginning um but by the time of the third call it was a case of uh there being some suggestion that we’re not going to do things in this was it that notes or typed minutes were to be stopped or were they to be destroyed to be destroyed and was that your clear understanding from that conversation yes um we know that in Mr Clark’s advice he uses the word shredded yes do you know where that came from I can only assume it’s rising out of the conversation that I had with Mr sing and is that something you recall from your discussion Mr Sing not at this point in time no so you don’t recall the word the specific word shredded but you do recall um the type minutes were to be destroyed rather than there was going to be some sort of stop and taking future no that that was very much my understanding that um Mr Singh told me that the the understanding that I had was that Mr Singh told me that the minutes were to be destroyed I can’t remember the exact phraseology I’m afraid were to be or had been there’s a big difference between the two um I was under the impression that the instruction had gone out and that they had been uh instruction from who to who the information that I was given that it was Mr Scott John Scott head of security who had sent that out that instruction out um to whom I believe it was I’m hesitant here because there are a number of people within that were number of people with a name David um and I’m thinking it was either David Paro or David posnet but I I’m afraid I can’t it was a long time ago and did you understand that Mr Scott had received advice in respect of that matter or that he was acting on his own instigation I had no idea I had no idea I was I was concerned by that third Wednesday morning call that somehow there was a a plan to change things I didn’t like that and then what was it that happened at that Wednesday meeting call that was of significance there was I was left with a distinct impression that post office were no longer wanting to keep a record of the calls and I can recall saying um no you must still keep a central record I don’t say post office who at the post office I think that was information that came from rodri Williams I think it was rodri Williams who said that because I think I said Roger you still need to keep a central record and I remember not being very happy about it and thinking this is one for Simon Clark and civil lawyers were present at that meeting did they have any input as far as you were aware I don’t I don’t recall I’m afraid um and I don’t have my notes from those meetings I might just take you to one more document before we finish for the day um can we please look at poll 001 39746 this is an email from johnell sing to yourself on the 1st of August so so the morning after yes and he says Martin I know Simon is advising on disclosure so it seems as though during your conversation um there was a discussion that Simon would be advising yes I’ve I’ve told him that you know clearly this the disclosure situation in criminal law is very different to that in civil litigation you know a central record needs to be written needs to be kept and um you know that that that that’s the position and it says as discussed can he look into the common myth that emails written Communications Etc meetings uh if it is not produced it’s then available for disclosure if it’s not then technically it isn’t possibly true of civil cases not criminal cases um I mean those words there seem to reflect the minute that we saw yes Mr Parson’s the words from him what did you understand uh Mr sing’s position to be or what was he asking for for here well I was a little puzzled when I received this because I’d already told him the previous night that you know we weren’t getting involved in the civil litigation side of things and whilst the civil lawyers may not want things in writing um you know it’s the information that matters and you have to have a central record and common myth yeah well was that amongst the the the legal team or or something else have I have no idea where he got that from um absolutely no idea what I do know is that Mr Parson have been talking from a civil pointing out to him on that on on that phone call the previous night that I was actually getting quite concerned because Simon Clark had been Simon clock’s advice had been accepted it had been watered down slightly but in a way that I could uh live with um and then of course there was now going to be a further change which I was actually quite concerned about and for I was asking Simon to uh to further advice thank you so that could be an appropriate time to stop we’ve been going for a long time today yeah yes indeed so what’s the program tomorrow we’ve got Mr oah returning yes we do that should be for uh no more than an hour I believe but is that happening first thing or he so that will happen first thing at 9:45 and then Mr Smith will come then continue yes yeah all right fine um I’m sure Mr Smith you know that you shouldn’t discuss your evidence overnight uh so please don’t do that um and um I’ll see you in the morning probably at around 10:45 everyone else at 9:45 thank you thank you sir e e e e e e e e e e e e e e e e e e e e e e for

Martin Smith, a solicitor who helped prosecute postmasters, is set to give evidence at the Post Office inquiry.

Read more here: https://www.telegraph.co.uk/news/2024/05/01/post-office-inquiry-live-horizon/

#postoffice #horizon #inquiry

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