1 Friday, 1 December 2023 2 (10.00 am) 3 JARNAIL SINGH (continued) 4 Questioned by MR BEER (continued) 5 MR BEER: Good morning, sir, can you see and hear 6 me? 7 SIR WYN WILLIAMS: Yes, thank you. 8 MR BEER: Thank you very much. 9 Good morning, Mr Singh. 10 A. Good morning, good morning. 11 Q. Can we pick up where we left off yesterday, 12 which was examining issues, in the general 13 sense, on the process and the procedure for 14 prosecuting suspected offenders. Did you ever 15 advise the Post Office to pursue a prosecution 16 to act as a deterrent to other subpostmasters 17 from committing crimes? 18 A. How do you mean, sorry? Can you flesh it out 19 a little bit, so I can -- I -- from my 20 recollection -- I-- no, no. 21 Q. Putting it another way, was the aim of deterring 22 other potential offenders a relevant 23 consideration in deciding whether to prosecute 24 a subpostmaster? 25 A. I don't think so, well -- well, no. When 1 1 I advised no, and -- 2 Q. Why do you think no? 3 A. Because you're working on the merits and the 4 evidence before you on that particular case. 5 That's -- you're concentrating on what's before 6 you. You're not sort of looking beyond 7 anything, beyond that. 8 Q. Okay. Can we look, please, at POL00107869, 9 please. If we just look at the email at the 10 bottom of the page. If we scroll up, so you can 11 see who it's from and to. It's from you to 12 Mr Scott and it's essentially your advice on 13 a charging decision, as I'm going to call it, 14 for Christine Gourlay in Scotland. You say: 15 "I have read the file and having reviewed 16 the papers, in my opinion there is both 17 sufficient evidence to provide a realistic 18 prospect of conviction of Mrs Gourlay and it is 19 also in the public interest to prosecute her." 20 Do you see that? 21 A. Yes. 22 Q. Then over the following pages there's 23 an analysis of the allegations, the evidence, 24 possible defences, and the like. If we can turn 25 to page 4, please, and look at the bottom, 2 1 please. Thank you. Just scroll down a little 2 more, thank you. 3 Under "Conclusion", paragraph 28, you say: 4 "In my opinion, because of the above 5 evidence and matters, there is sufficient 6 evidence to provide a realistic prospect of 7 conviction of Mrs Gourlay. 8 "In my opinion it is in the public interest 9 to prosecute Mrs Gourlay because of breach of 10 trust, and the large amount of loss. Then 11 prosecution and conviction will act as 12 a deterrent to others. 13 "Mrs Gourlay in her interview is implicitly 14 attempting to blame other parties." 15 It's the part of the sentence there which 16 says that "prosecution and conviction will act 17 as a deterrent to others". That tends to 18 suggest that, in deciding whether to prosecute 19 or not, you did take into account the possible 20 deterrent effect of a prosecution and perhaps 21 conviction upon others; would you agree? 22 A. Firstly, it's such a long time ago, I don't know 23 the full details. I would have read the files 24 in depth, considered it. Maybe in general 25 terms, but not -- the main ones are the fact is 3 1 there's evidence, the public interest is the 2 breach of trust. There's a large amount of 3 loss. 4 Q. I'm not asking about those; I'm asking you about 5 the reasoning, which says, "prosecution and 6 conviction will act as a deterrent to others"? 7 A. Well, that -- maybe just complete to the 8 sentence or something, it wouldn't be -- I -- to 9 be honest, I -- that -- I -- that's never 10 actually gone through -- it's not the process 11 I would follow. I don't know why, in these 12 circumstances, where there was something in the, 13 you know, in the Investigation Officer's report 14 or in the interview or something that 15 John Scott, I think, specifically asked me to 16 consider but, in general terms, that was not the 17 aim. 18 Q. He didn't -- 19 A. Certainly -- I mean, I accept the fact it's 20 here, yes. But it's not the main -- it's never 21 been the main consideration in any of my advices 22 or in my consideration. For some reason it's 23 there because it's particular, peculiar, to 24 these details. That's in this particular case. 25 I don't know whether he's particularly asked or 4 1 the Investigation Officer asked or he asked me 2 to address it, but yes, it's there. 3 Q. In the documents that we've got, the 4 investigation report and the other 5 communications from Mr Scott -- 6 A. Yes. 7 Q. -- he doesn't ask you "Please can you include in 8 your advice whether or not prosecution and 9 conviction will act as a deterrent to others and 10 please include one way or the other in your 11 reasoning whether you take into account or leave 12 out of account the possible deterrent effect". 13 It's something that comes from you and not him. 14 A. Yes, maybe then I -- you know, it's such a long 15 time ago. I don't know -- maybe on that 16 particular day, but certainly generally 17 I wouldn't of -- I mean, the other advices 18 you've probably seen, it's not there. 19 Q. Was this a -- 20 THE SOLICITOR: Sorry, can I just interrupt? 21 (Off mic) 22 MR BEER: Sorry sir, you won't be able to hear. 23 THE SOLICITOR: Sorry, can I say something there? 24 MR BEER: Hold on. Mr Singh's solicitor has just 25 said: 5 1 "I'm sorry, I don't think this document was 2 provided before." 3 I'll check whether that's so, and if 4 Mr Singh needs any time at all to read it, he 5 should have it. 6 SIR WYN WILLIAMS: I agree. 7 THE SOLICITOR: Thank you. 8 MR BEER: Do you need time to read this document? 9 A. Is that the only -- have you got quite a bit of 10 papers? 11 Q. I'm sorry? 12 A. Have you got quite a bit of papers to go to the 13 background to it? So can I have as much 14 information as you've got? 15 Q. I can certainly research that and come back to 16 you later in the day or when you come back next 17 year. If that would assist, I don't know at the 18 moment whether this was a document that was 19 provided or not. I can just check, however. 20 Yes, it was part of the batch of documents 21 that was provided last week, tab E92. So you 22 have had it before. I'll move on. 23 Were cautions an available outcome? 24 A. Sorry? 25 Q. Were cautions an available outcome? 6 1 A. Yes, I think yesterday we discussed it, yes. 2 Q. Was there a statutory basis for the Post Office 3 issuing cautions to suspected offenders? 4 A. I'm sorry, I don't understand. I mean the 5 normal -- what do you mean, "statutory" -- it's 6 something that we considered, yes. I mean, 7 after the evidence, the next bit was whether 8 there's an alternative way of dealing with it 9 and -- in light of the public interest. 10 Q. Where did the power come from for the Post 11 Office to issue a caution? 12 A. I -- I mean, I certainly -- we advised as to how 13 it's given, who gives the caution, whether the 14 police does it for the Post Office or the police 15 got any statutory powers. I don't know. 16 I can't -- I mean, maybe at that time I did know 17 but what the system was or what the procedure 18 was or what the basis was, certainly we did 19 advise on cautions. 20 I think in every single case we considered, 21 it's always -- you know, the evidential test and 22 then the public interest and public interest, 23 one of them was the fact that there was 24 alternative ways of dealing with it, rather 25 than, you know, prosecution. 7 1 Q. So was this a consistent practice over the 2 entirety of the period that we are talking 3 about, from August 1995 until, say, April 2012? 4 A. You mean the consideration for caution? 5 Q. Yes. 6 A. Certainly on my cases, I had a checklist of -- 7 going through it, and one -- first the 8 evidential test, then the public interest, and 9 there was an alternative way of disposing of it, 10 you know, without resorting to prosecution. But 11 then a lot of the -- most of the -- the majority 12 of the time is a breach of trust and the fact 13 the amount of loss involved or amount of -- 14 yeah, amount of loss. 15 Q. Was there a Post Office policy which regulated 16 when and in what circumstances cautions should 17 be offered to suspected offenders? 18 A. I think we basically applied the Prosecutors 19 Code, if it's in there, and certainly -- 20 Q. The Code for Crown Prosecutors? 21 A. Yes, sorry. 22 Q. That doesn't address cautions. 23 A. But certainly I -- that's the -- maybe we -- in 24 our training or the way we looked at the case, 25 we certainly considered it. I mean -- 8 1 Q. What were the relevant considerations in 2 deciding whether to offer a suspected offender 3 a caution? 4 A. Well, in any circumstances, in the sense that -- 5 the amount involved, the recovery -- 6 Q. Sorry the amount involved? 7 A. Yeah. 8 Q. So what was a permissible level of amount 9 involved for a caution and what was 10 impermissible amount? 11 A. I wouldn't -- well, it depends on the 12 circumstances, the whole circumstances of the 13 case but I think around about 5,000, I think, 14 is -- a figure of 5,000 comes to mind. 15 Q. So if it was below that amount then a caution 16 was permissible; is that right? 17 A. I think -- there was no strict figure but that 18 was the figure, I think, we -- the figure they 19 mentioned that we ought to pay more attention 20 to. 21 Q. The next thing you said was "and the recovery". 22 What does "and the recovery" mean? 23 A. Well, if it was a short period of offending or 24 it was just one-off offence or the circumstances 25 surround it, persons -- you know, the health 9 1 issues, the -- or the personal -- 2 Q. No, you're talking about different things now. 3 I was asking about the thing you just mentioned, 4 which was you said "and the recovery". What did 5 that mean? 6 A. Well, my -- money, if the money is repaid, 7 that's what it means. 8 Q. Was that a condition of issuing a caution? 9 A. No, there's no condition, it's a consideration. 10 That's the sort of -- 11 Q. What was a consideration? 12 A. The amount lost and the amount recovered. 13 I think that was one of the bases of -- 14 Q. So did the amount have to have been recovered in 15 order to issue a caution? 16 A. To be honest, this is going back a few years, or 17 lots of years, a number of years. I've been 18 doing other things. Now, I don't know and 19 you've probably put me on the spot, so 20 I don't -- I can't give you a definitive answer 21 on that. But certainly it was considered. 22 I think any case I dealt with is always -- 23 I always played my mind to it. 24 Q. You went on to mention health; is that the 25 health of the suspected offender? 10 1 A. I think the -- and the family, I think, any 2 surrounding circumstances. Anything and 3 everything. 4 Q. Were there other considerations brought into 5 account? You said the amount of the loss, 6 whether it had been recovered, ie whether the 7 postmaster that paid it back, and the health of 8 the suspect and their family. In addition to 9 those three things, was anything else brought 10 into account? 11 A. Now, I don't know. I mean, I can't give you 12 definitive answer because it's such a long time 13 ago since I left the Post Office and left the -- 14 prosecution generally. I've been doing other 15 things, as you know. I don't know the answer to 16 that. 17 Q. What about an admission -- 18 A. Well, obviously -- 19 Q. -- of guilt by the offender -- 20 A. Well, it -- 21 Q. -- which in the outside world, outside the Post 22 Office is -- 23 A. Full and frank. 24 Q. -- a condition precedent to the issuing of 25 a caution? 11 1 A. Full and frank admissions, yes, that is one of 2 it, isn't it, yeah? 3 Q. Is that a fourth thing, then? 4 A. Well, it's -- yes, it's -- yeah, it's important. 5 Yes. It's got to be, hasn't it? 6 Q. Can you remember any guidance or written 7 document that told you and the other senior 8 lawyers how to approach this issue? 9 A. I think it's certainly -- I don't know about 10 internal document or internal training now but, 11 certainly, the outside training, we had the 12 Central Law Training. We -- I certainly 13 regularly attended. There was the -- 14 Q. Was that training about cautions? 15 A. Well, they -- some of the trainings were about 16 cautions, yes. 17 Q. So you received training from "Central Law", did 18 you say? 19 A. It's Central Law Training, you know, where you 20 get your CPD points each and every year. 21 Q. That was training about cautions? 22 A. Well, one of the topics would have been, I would 23 have thought, but, I mean, I can't tell you 24 which one. And then certainly chambers, I think 25 they did quite a lot of training, whether it was 12 1 on caution, but certainly on the subjects we 2 were sort of interested in. I don't know 3 whether that -- somebody mentioned it and it 4 meant they apply -- you know, they trained us on 5 that or what sort of considerations go in it. 6 But such a long time ago but we did -- there 7 was a lot of training but I don't know whether 8 there was actually a Post Office manual we 9 applied to. I mean, whether it was written down 10 internally, I can't really say one way or the 11 other whether it was or not. 12 Q. Was there a process that had to be gone through 13 for the authorising of a caution? 14 A. Well, that's something we -- we advised on or 15 recommended but, as to how it's applied, 16 I couldn't tell you. It's such a long time ago, 17 as to how they did it. But I think it's 18 certainly -- you know, the Security or the 19 Investigation Team carry that out -- well, 20 they're the ones who carried it forward as to 21 how they administered it, whether they had the 22 authority -- 23 Q. Never mind the administering of it at the 24 moment, I'm thinking about who decided that 25 a caution was appropriate? 13 1 A. Well, we -- it was obviously the Legal Team, 2 I think we -- 3 Q. Who were the decision makers? 4 A. We recommended it. We didn't make the decision; 5 we recommended it. 6 Q. Okay, to whom did you recommend it? 7 A. To the Security Team, we passed it to the 8 Prosecution Support Office and who, in turn, 9 I think, passed it on to the decision maker or 10 the designate decision maker, I think. 11 Q. Would that designated decision maker have 12 changed over time? Sometimes it being somebody 13 in HR, I believe, and then it changed to being 14 the Head of Security? 15 A. It was -- well, you probably -- well, you -- 16 that -- it probably -- yes, I think it probably 17 did, but what I'm saying is that we went to the 18 Prosecution Support Office, they in turn passed 19 it on to the appropriate person, whoever was the 20 designated authority at that particular moment 21 in time. 22 Q. So, as matters stand now, you can't help us with 23 the power that the Post Office used to issue 24 cautions to offenders nor whether there existed 25 guidelines regulating the circumstances in which 14 1 such a caution could be issued? 2 A. Well, I'm trying to think. As, you know, the 3 practicality of it -- it's just -- it's just too 4 long a period between the -- when I was advising 5 on it and since I left. I can't -- no, I don't 6 think I can help you with any more than what 7 I have. 8 Q. Thank you. Can I ask you some questions about 9 the duties of a prosecutor in relation to 10 an expert witness. Do you agree that 11 a prosecutor intending to rely on expert 12 evidence in criminal proceedings was under the 13 following duties: firstly, to satisfy themselves 14 as to the expert's relevant qualifications and 15 expertise? 16 A. Sorry, you've finished? Yes, sorry. Well, yes. 17 Are you going to read the -- I think you're 18 going to read the whole thing or are you -- 19 Q. I could read out six things then you'd have to 20 remember them and say which of them you agreed 21 and which you didn't. It might be best if I did 22 them one by one. 23 A. Okay, sorry, yes. 24 Q. That's the first one. 25 A. Can you say it again, sorry? 15 1 Q. Do you agree that a prosecutor was under a duty, 2 if they intended to rely on expert witness, to 3 satisfy themselves as to the expert's relevant 4 qualifications and experience? 5 A. Yes, yes. 6 Q. Secondly, a prosecutor was required to satisfy 7 themselves that the expert had been 8 appropriately instructed including by the 9 provision of a written and detailed letter or 10 email of instruction or terms of reference? 11 A. Yes, yes. 12 Q. Thirdly, the prosecutor was under a duty to 13 provide the expert, within those instructions, 14 as to what it is that his or her opinion was 15 sought about, and should set out the issues or 16 questions that they were expecting the expert to 17 answer? 18 A. Generally, yes. 19 Q. Fourthly, they were under a duty to provide 20 explicit guidance as to what the expert was 21 being asked to do and what material they were 22 being asked to consider, in order to undertake 23 that task? 24 A. Yes, yes. 25 Q. Fifthly, a prosecutor was under a duty to set 16 1 out the material upon which reliance had been 2 placed in the prosecution and which of that 3 material may be relevant to the questions which 4 the expert was being expected to answer? 5 A. Yes. 6 Q. Sixthly, a prosecutor was under a duty to inform 7 the expert as to the expert's relevant duties? 8 A. Yes. 9 Q. Would you agree that, even those experts who 10 were trained, accustomed and made their living 11 by giving expert evidence, a prosecutor had to 12 make the expert sure that they understood what 13 the expert's duties and obligations were? 14 A. Yes, yes. 15 Q. Would you agree that there was a duty on 16 a prosecutor to satisfy themselves that the 17 expert had understood that they owed duties to 18 the court and that in their work and their 19 report they had complied with their duties to 20 the court? 21 A. Yes, yes. Yes, of course. 22 Q. Would you agree that a prosecutor at all 23 relevant times was under a duty to satisfy 24 themselves that any material or literature of 25 which the prosecutor was aware and which might 17 1 undermine the expert's opinion, was reviewed by 2 the prosecution and, if relevant, disclosed to 3 the expert? 4 A. Yes. 5 Q. Would you agree that these duties needed to be 6 satisfied in order that the prosecutor could be 7 satisfied that the expert evidence was 8 admissible in court, ie these were conditions of 9 admissibility, rather than just written 10 requirements that it was nice to achieve? 11 A. Yes, yes. 12 Q. So these went to admissibility? 13 A. Yes, I agree. 14 Q. Did you, in your work, have all of those duties 15 in mind when you were advising on files and 16 acting as a prosecutor? 17 A. I'm trying to think. I don't -- apart from one 18 case, which, again, I've never instructed 19 an expert in any of my cases -- 20 Q. In the -- 21 A. In the Post Office. 22 Q. In the Post Office, you never instructed 23 an expert? 24 A. No. 25 Q. Never relied on expert evidence? 18 1 A. No. 2 Q. Including in Seema Misra's case? 3 A. Well, that, again, I think you've seen my 4 witness statement. 5 Q. You say you didn't treat him as an expert, it 6 was the court that did it? 7 A. No, I'm not saying anything. All I said was 8 that he came as the only person who could assist 9 with the workings and operation of the Horizon 10 system and I think, as the matter progressed, it 11 became apparent that the only way the defence 12 experts can function or are able to do his 13 duties, or advise the -- or assist the court, 14 was with the assistance of the guy who was -- 15 the assistance of the Fujitsu employee who knew 16 the system very well, because it's a very, very 17 specialist system, so you'd need a special 18 knowledge. You can't just have anybody come in 19 to be able to understand it and then actually 20 assist the court. 21 Q. We're going to come back to that big topic in 22 a moment, whether you treated Mr Jenkins as 23 an expert or not? 24 A. Yes, of course, yes. 25 Q. Would you agree that in terms of inclusions in 19 1 an expert report that, by 2006, the following 2 matters were necessary conclusions in an expert 3 report: 4 Firstly, details of the expert's academic 5 and professional qualifications, experience and 6 accreditation, insofar as they are relevant to 7 the opinions expressed in the report? 8 A. It's something that I think we very much heavily 9 would have relied on advice from counsel. 10 Certainly, I think that's as far as I can take 11 it, because -- the only time -- but I think you 12 said you -- you said you were going to come to 13 that topic in a minute -- that's one of the 14 reasons why we relied very heavily on counsel 15 because we used their vast experience in other 16 cases, not just the Post Office cases, but 17 outside, because a lot of our counsel were very 18 experienced and knowledgeable about prosecuting 19 for the CPS and other bodies. 20 Q. I'm asking you whether you knew yourself that, 21 certainly by 2006, an expert report needed to 22 include details of the expert's academic and 23 professional qualifications, their experience 24 and accreditation that was relevant to the 25 opinions expressed in the report? 20 1 A. Well, yeah, I would have thought that was 2 obvious, yes. 3 Q. So, yes, you did? 4 A. I did but, as to the -- I've instructed, 5 I think, experts in the civil matters but, 6 certainly, in the criminal matters, that was the 7 first experience of it, I think, and I've never 8 even had a defence expert's report on any of my 9 cases. 10 Q. So Professor McLachlan, he wasn't an expert -- 11 A. Well, no, we're not talking about that yet. You 12 said you were coming to it. But, certainly, 13 I saw his reports over and over again, but 14 you're talking about in general terms, aren't 15 you, or are you saying -- 16 Q. I'm asking you whether you knew that both the 17 common law and the Civil Procedure Rules 18 Part 33, which came into effect in November 19 2006, said that an expert report had to contain 20 details of an expert's academic and professional 21 qualifications, their experience, and their 22 accreditation, insofar as it was relevant to the 23 evidence that they were going to give? 24 SIR WYN WILLIAMS: Before you answer, Mr Beer, 25 I think there was a slip of the tongue. You 21 1 said, "Civil Rules", did you mean Criminal 2 Rules? 3 MR BEER: I meant the Criminal Procedure Rules, yes, 4 thank you, sir. 5 A. I think I had generally read about it, like 6 I said, and also I did repeat -- I did read the 7 defence expert's reports. Certainly was all 8 there. As to whether that was something of 9 a second nature to me, I would say no, purely 10 because I've never had a case where I had to 11 instruct an agent -- instruct an expert in the 12 criminal proceedings. 13 Q. Did you know that, by that time, 2006, the law 14 required a report to include a statement of the 15 range and extent of the expertise of the expert 16 and any limitations that they identified as to 17 their expertise? 18 A. I don't know. I mean, I'm trying to think what 19 I knew at that year, the time period I was 20 employed by the Post Office. But, certainly, if 21 I was instructing an agent -- instructing 22 an expert, I would have done a research around 23 it as to what my obligations were. 24 Q. Did you know that, by that time, the law 25 required an expert report to contain a statement 22 1 setting out a substance of the instructions that 2 the expert had received, the questions upon 3 which their opinion was sought, the materials 4 that they had been provided, the documents, 5 statements, evidence, information and 6 assumptions, which were material to the opinions 7 expressed within the report? 8 A. In general terms but then, if I was going to 9 instruct an expert, then I would have had 10 a conference or got advice from counsel, read 11 around the topic. But, as to the knowledge, 12 it's not something I would have retained 13 readily. I mean, like any new experience or 14 anything I would have done, which I've not done 15 before, certainly I'd have read around it, got 16 to know it very well, and then had probably 17 sought counsel's advice before doing it. 18 But it's the -- as to -- I don't know what 19 you're asking in -- I knew -- obviously in 20 general terms, I probably knew quite a lot. But 21 when it actually come to specifics then I would 22 have sat down and worked it out, and then sought 23 advice, and maybe sought advice from other 24 experienced lawyers within the Criminal Law 25 Team, and I think I would have gone to, you 23 1 know, the Head of Criminal Law Team to say, 2 "Look, this what I'm doing, is there pointers 3 I need to know?" And then I would have directed 4 my mind to it. 5 And, certainly, before embarking on anything 6 of that nature, that's my background, 7 experience, and reading around it, and then 8 going to counsel. That's what we would do. 9 Q. Did you know that, by 2006, the law required 10 a report where there was a range of opinion in 11 the matters dealt with by the expert to include 12 a summary of the range of opinion and the 13 reasons for the opinion given by the expert 14 within that range? 15 A. I don't know, I mean, I -- to that. I mean, 16 I wouldn't know anything like that to -- maybe 17 to that detail. I can't say one way or the 18 other but, certainly, if I was going to -- 19 instruct an agent -- instruct an expert, then 20 I would have been able to bring my knowledge up 21 to date to that level but, I mean, it's not 22 something I would have retained because it's not 23 something I would have used on a daily basis. 24 Q. Did you know that, by 2006, an expert report was 25 required by the law to include relevant extracts 24 1 of literature or other material that may be of 2 assistance to the court? 3 A. Again, same answer. Again, I would have -- if 4 I was going to instruct an expert, that's what 5 I would have done and, certainly, I would have 6 a back-up of an opinion or advice from counsel. 7 Q. Lastly on this, did you understand that by 2006 8 the law required an expert report to contain 9 a statement to the effect that the expert had 10 complied with their duties to the court to 11 provide independent assistance, by way of 12 objective and unbiased opinion, in relation to 13 the matters within their expertise and 14 an acknowledgement that the expert would inform 15 the parties and, where appropriate, the court, 16 in the event that his or her opinion changed on 17 any material issue? 18 A. In general terms, yes, but then, as I said 19 before, before instructing an expert, I would 20 have got to know it in detail and, certainly, 21 I would have got advice and opinion as to what 22 needs to go into the expert's report and, also, 23 as and when the expert need to be told about. 24 Well, when the expert is instructed, I would 25 have included that, in his instructions. 25 1 Q. Would you that have understood at this time that 2 the requirements that I've just listed went to 3 the substance of the expert's opinion and 4 weren't merely box ticking exercises that had to 5 be complied with on the pieces of paper written 6 by the expert? These went to whether the expert 7 understood their duties and had approached their 8 task, compliant with their duties and, 9 therefore, this was a question of admissibility? 10 A. I think the answer would be the same as before, 11 because it's not something I would do on a daily 12 basis, it's something I have not done within the 13 prosecution -- whilst prosecution for the Post 14 Office. 15 Q. Before embarking on the detailed evidence, can 16 we agree on the following: firstly, in the case 17 of Seema Misra, no witness statement relied upon 18 by the Post Office from Mr Jenkins included any 19 of the necessary conclusions required by the 20 common law and the Criminal Procedure Rules that 21 I've just listed? 22 A. No, because I -- he wasn't -- he wasn't -- he 23 didn't come in as an expert, in the sense of 24 an expert; he was an expert who was experienced 25 in the system in itself because it's such 26 1 a specialist system and he -- assisting the 2 prosecution, the defence and the court, into 3 understanding how the system worked or the 4 operation of the system. I think that's why and 5 how he came into advising, he came in as 6 somebody who knew the system well. 7 Q. So I think you agree that none of the witness 8 statements -- 9 A. No. 10 Q. -- supplied by Mr Jenkins and relied upon by the 11 Post Office in the case against Mrs Misra 12 included any of the necessary elements that 13 I have just listed? 14 A. Yeah, purely because he was (sic) instructed as 15 an expert. 16 Q. I'm sorry? 17 A. He was not instructed as an expert. 18 Q. I think, as a matter of generality before we 19 come to the detail, you would therefore agree 20 that you did not provide Mr Jenkins with any 21 instructions as to the duties of an expert? 22 A. No. 23 Q. You did not provide Mr Jenkins with any 24 instructions as to the need to document, for 25 example, the work carried out by him and by 27 1 others, which formed any part of the evidence 2 that he was to give? 3 A. No, purely because he came in as a witness of 4 fact. He was put forward or recommended by 5 Fujitsu as the best person who can answer or 6 advise the prosecution and, in turn, the 7 defence, and I think all he did was to -- the 8 questions posed by the defence expert to assist 9 him to understand the system. 10 Q. I think it follows that you did not provide 11 Mr Jenkins with any sort of document or schedule 12 upon which he should record, for example, the 13 material that he had considered in order to form 14 his expert view? 15 A. I don't know what material you -- what material 16 I'm supposed to provide. It's like -- the way 17 the whole -- he came into being was purely -- 18 whatever information we had from the defence 19 expert, and he was basically forwarding it on to 20 him to respond to it, like any other witness. 21 He -- I didn't take any witness statement from 22 him and I don't think I've actually physically 23 met him until -- from now, from the documents 24 the Inquiry has provided me with, I think the 25 first time was probably in a conference round 28 1 about October and I think two or three weeks 2 before, prior to the actually -- actual trial. 3 The normal practice of the Post Office was 4 not the solicitor to take a witness statement 5 but to the Investigation Officer to do so, and 6 that's how it worked out. Certainly, the 7 defence solicitors would send their enquiries, 8 and I think -- and I think maybe once they've 9 put forward the challenge to the Horizon system, 10 they instructed their expert, they in turn put 11 forward these reports, plus further enquiry -- 12 further enquiries. That went to the 13 Investigation Officer. 14 He, in turn -- this is -- this information 15 needed to be dealt with by Fujitsu and I think 16 there was in place some sort of procedure, 17 system, or process in place that needed to be 18 followed and I think, because of the time 19 constraints or certain -- we needed to respond 20 within a certain period of time, that's when 21 I phoned or got in touch with the Prosecution 22 Support Office, Fujitsu's Prosecution Support 23 Office, and they said, "No, you've got to follow 24 certain procedures", which was would be time 25 consuming, and just to escalate the matters, 29 1 I was given a phone number for the Head of Legal 2 at Fujitsu who I contacted and he recommended 3 Mr Jenkins. That's how he came into being. 4 Q. Mr Singh, can I cut through this. I am just 5 asking you at the moment whether you provided 6 instructions, reminders to Mr Jenkins of duties 7 that I have outlined, instructions as to the 8 need to document work carried out by him or by 9 others that was going to form a part of his 10 evidence, with a schedule or work record that 11 detailed the material that he had considered as 12 part of his work. 13 I think your answer is "No, because I didn't 14 think he was an expert"? 15 A. No, well, I think you followed it up and you 16 presumably wanted me to elaborate, but yes -- 17 well, if -- no. That's right. You're right. 18 Q. I think it follows that there's no 19 documentary -- 20 A. No, because we didn't have any documents at that 21 time. What documents could we have provided? 22 So I didn't have any documents that -- 23 Q. I think you're misunderstanding me. I'm asking 24 whether you approached Mr Jenkins on the basis 25 that he was an expert and then said to him, 30 1 "Look, Mr Jenkins, as you're going to be giving 2 expert evidence, it's necessary for you to 3 record, in order that we, the prosecution, can 4 disclose, the work that you carry out in order 5 to form your expert view, including a record of 6 who you spoke to and communications that you 7 received from others, insofar as they end up 8 being part of your report." 9 A. At that -- 10 Q. You didn't say that? 11 A. No, well, at that stage, he wasn't considered as 12 an expert. He was just more or less responding 13 to the expert's report or enquiries, or their 14 questions, if you like, because he was the 15 only -- he was put forward as the person who 16 could deal with them. So he was -- you know, he 17 was like any other witness. He would have him 18 called to give evidence. 19 Q. Do you have conferences with any other witness? 20 Do you sit down with witnesses of fact and 21 custody their fact and custody their evidence 22 with them, a couple of weeks before trial in 23 a barristers' chambers? 24 A. Well, we didn't have any trials. I mean, 25 certainly, I -- 31 1 Q. Sorry? No, I'm talking about Seema Misra. 2 You've told us you attended a conference with 3 counsel Warwick Tatford in October 2010 and 4 Mr Jenkins was present, which you mentioned 5 earlier. 6 A. Yes. 7 Q. Was it usual for you to sit down with witnesses 8 of fact and chat through their evidence with 9 them? 10 A. I think, it depended very much on the case. 11 Q. So you would sometimes chat through a witness's 12 evidence with them in a prosecution? 13 A. I think some of the times, some of the -- these 14 areas, certainly we did, in the sense that 15 trying to understand the actual system or the, 16 you know, the technical aspect of it, I think. 17 I don't know, maybe it's a -- I can't -- 18 I mean -- I think -- I'm sure we have. 19 Q. Presumably you would want to keep a pretty 20 careful record, if you were chatting through the 21 evidence of a witness of fact a couple of weeks 22 before trial, wouldn't you? 23 A. Well, certainly but, I mean, you know, certainly 24 the Investigation Officers, I -- to be honest -- 25 I can't -- I can't recall exactly where we were, 32 1 how we dealt with it now, but certainly I always 2 had my notepad with me. 3 Q. Or is the fact that you met Mr Jenkins in 4 consultation with counsel a couple of weeks -- 5 A. But I haven't taken any papers with me from the 6 Post Office when I left. Everything is there. 7 Q. Hold on, I haven't asked the question yet. 8 A. Well, that's where you're coming from -- okay, 9 ask the question. 10 Q. Just wait and see. 11 A. Okay, all right. 12 Q. Is the fact that you were attending 13 a consultation or conference with counsel, with 14 Mr Jenkins, a couple of weeks before trial, 15 an indication that, in fact, you treated him as 16 an expert witness because that's what one might 17 do with an expert witness -- 18 A. I -- 19 Q. -- rather than a witness of fact? Pretty 20 unusual to sit down with prosecution counsel and 21 chat through a witness of fact's evidence, isn't 22 it? 23 A. I can't really tell you how these came about. 24 I think certainly counsel asked for 25 a conference, and I -- again, I think in -- 33 1 originally, I didn't -- I mean, it was such 2 a long time ago, I didn't actually put it in my 3 witness statement and I think you provided 4 further papers, and I think, and then I think 5 Mr Jenkins was nice to put, you know, "Nice to 6 meet you", and all the rest of it, and then 7 I started remembering there was a conference. 8 As to how that came about or why, what the 9 circumstances were, I couldn't tell you. But 10 certainly, yeah, I mean we got a very 11 experienced counsel who had been dealing with 12 not just the Post Office cases but wide 13 experience of the prosecution for the CPS. He 14 would have been well aware and he would have 15 made me well aware as to what I needed to do, as 16 well as him -- his duties, and I think he must 17 have -- either the specifics of him being, you 18 know, his duties, my duties, we would have done 19 that. But -- 20 Q. I think it's right that there's no documentary 21 record to which you can point that confirms that 22 Mr Jenkins understood, to your understanding, 23 any relevant expert duties that he owed to the 24 court; is that right? 25 A. Well, it follows, because, as I say, we -- he 34 1 didn't -- he was never instructed as an agent 2 from the outset -- as an expert, sorry, by -- 3 I'm trying to think at the same time as -- 4 because his speciality was -- or his expertise 5 was very, very specific, very specialist, and 6 that was the special tailor-made system for the 7 Post Office, which his employer provided for the 8 Post Office. 9 So he wasn't -- I think that's where we 10 were -- that's where we were confused. 11 Q. What were you confused about? 12 A. Confused as to whether he came as an expert or 13 as fact, because he was basically, literally 14 assisting and assisting the defence expert, 15 because the defence expert was not an expert on 16 the Horizon system, if I can put it that way. 17 Q. Did you feel confused at the time? 18 A. I don't know. I mean, I -- I wasn't confused in 19 the sense of I think you mean, certainly I'm 20 not, like I said to you, in these particular 21 circumstances or in this particular incident, 22 I've never instructed an expert for the Post 23 Office in these circumstances -- in this 24 incident, so I was new to it in that sense, 25 because it wasn't second nature. 35 1 If you'd been dealing with something, you 2 know, on a regular basis you would have 3 everything in place. I would have had to 4 basically start from scratch and work out the 5 particular terms, or the law, so to speak, as to 6 my duties, duty of the expert, because I don't 7 think any within -- anybody within the Criminal 8 Law Team had actually instructed an expert in 9 that sense. 10 Q. Can we look at your witness statement, please, 11 at page 24, paragraph 69, please. If we scroll 12 down, thank you. You say: 13 "In the Misra case the defence expert raised 14 questions. I contacted the Investigation and 15 Security Team to ask whether they could answer 16 these questions. I was told the request needed 17 to be made in writing and it could take weeks 18 for a response. I was worried that the normal 19 systems and procedures for obtaining information 20 from Fujitsu would be too slow and so I also 21 contacted David Jones, Head of Legal at Fujitsu, 22 to escalate the request so it would be dealt 23 with as quickly as possible to comply with the 24 court order. Subsequently, Gareth Jenkins was 25 put forward to deal with the defence requests as 36 1 someone who was in a position to deal with the 2 issues raised by the defence expert, but 3 I understand that his role was initially limited 4 to that of a lay witness who knew the Horizon 5 system well. As far as I can recall, the Post 6 Office did not seek to rely on him as an expert 7 witness or at least initially. Subsequently, 8 due to his expertise and qualifications, the 9 court considered him an expert." 10 Do you see that? 11 A. Yes. 12 Q. So you're saying that you and others in the Post 13 Office did not seek to rely on him as an expert 14 witness, at least initially, but the court did. 15 A. Well, I think, isn't that what -- 16 Q. Is that correct? Is that what you're saying? 17 A. Yeah, isn't that what I've been -- 18 Q. Right, good. 19 A. -- saying all along to you, in any case. 20 I don't think that's any different to what I've 21 just been telling you. 22 Q. If we can turn, please, to page 67, paragraph 23 198, you say: 24 "Initially, I did not consider Mr Jenkins to 25 be acting as an expert but to be brought in as 37 1 a lay witness with technical knowledge who could 2 respond to matters raised by the defence 3 expert." 4 Then at the end, you say: 5 "However, this was an unusual case in that 6 he was not regard by the prosecution as 7 an expert witness but from recollection went on 8 to be treated as an expert by the court." 9 In both of those paragraphs, you say that 10 initially you did not treat him as an expert 11 witness, agreed? 12 A. Yes. 13 Q. In both of those paragraphs, you say that he, 14 Mr Jenkins, was treated by the court as 15 an expert, agreed? 16 A. Well, that's what I say, but -- 17 Q. Yes. 18 A. Yes. 19 Q. So, if you initially did not consider him to be 20 acting as an expert, it follows, doesn't it, 21 that there came a stage when you did consider 22 him to be an expert, agreed? 23 A. Not -- not by -- I don't -- I don't -- it's 24 difficult because I think you're -- it's very 25 easy to play with words but in the -- 38 1 Q. Is that what you think I'm doing? 2 A. No, I'm -- 3 Q. I'm just reading out parts of your witness 4 statement. 5 A. Maybe I'm -- let me think, then. Let me think 6 quietly to myself. I was thinking loud. Maybe 7 it's not the place to think loud. Let me put it 8 differently to you, then. 9 Q. Just so you can refocus on the question. 10 A. Yes. 11 Q. In two paragraphs in your witness statement you 12 said: 13 "Initially, I did not consider him to be 14 acting as an expert ..." 15 A. Yeah. 16 Q. My question is: does it follow that later, 17 ie after the initial bit had finished, you did 18 consider him to be an expert? 19 A. Only as an expert in the Horizon system, because 20 we did not have anybody else to -- who had that 21 specialist experience into the operation of it, 22 the workings of it and, also, even to analyse 23 the transaction logs. And I think, overall, in 24 the scheme of things, in the case itself, he -- 25 and in turn, because of his expertise and 39 1 knowledge, he was able to bring the defence 2 expert to a level where he could actually 3 understand the system -- 4 Q. Mr Singh, in these two paragraphs you're dealing 5 with Mr Jenkins' status -- 6 A. Yes -- 7 Q. -- as to whether he was a lay witness or 8 an expert witness. In both paragraphs, you say, 9 initially, you did not consider him to be acting 10 as an expert witness. 11 A. Well, I -- I think throughout -- 12 Q. But then, and I'm asking you, after that initial 13 period had passed, did you treat him as 14 an expert witness? 15 A. Okay, can I share something with you? There 16 would -- I -- the way this should have come 17 about or the way I visualised it, was that there 18 would come a stage where we would get 19 an external expert, whereby the -- Mr Jenkins 20 would be able to assist our expert -- our 21 independent expert. I think that's probably 22 true meaning, where we should have done, but, at 23 the same time, I think I was relying very much 24 on the expertise and the knowledge and 25 experience of our counsel, and that didn't come 40 1 together. 2 But, initially, I think it would have 3 been -- I think maybe the way it should have 4 been done would have been -- maybe we would have 5 got another professor in, I don't know. But 6 certainly here, he did -- in the true meaning of 7 the word, he didn't come in as an expert. Maybe 8 here -- it was very difficult to put it into 9 words what I was trying to say, but he was 10 treated as a witness of fact all the way 11 through, up to including the trial. 12 But maybe it should have been done 13 differently, he should have been -- we should 14 have got another professor in, from the outset, 15 as an independent expert but then who would have 16 instructed him? Who would understand the 17 system? Who would -- it was that sort of 18 real-world problem -- 19 Q. Can we go back to page 24, please, paragraph 69 20 at the bottom, last sentence: 21 "Subsequently, due to his expertise and 22 qualifications, the Court considered him 23 an expert." 24 Did the Post Office argue against the 25 court's treatment of Mr Jenkins as an expert? 41 1 A. Not to my knowledge. I wasn't in court. 2 Certainly, we were represented by a very 3 experienced knowledgeable counsel and, 4 certainly, he was instructed by the 5 Investigation Officers that were there and 6 I think one of our legal executives was there. 7 I didn't get any -- anything to -- anything like 8 that, that we said "No, no, he's an expert, he's 9 only an expert of fact". 10 Q. So did the Post Office acquiesce in the court's 11 treatment of him as an expert? 12 A. I don't know. I mean, I can't answer that. 13 I mean -- 14 Q. When did the court subsequently consider him 15 an expert? 16 A. Well, that was -- I -- I -- well, maybe it was 17 wrong. I, you know, doing this statement after 18 a long period -- the conclusion or the case has 19 been concluded, it was a difficult one. I would 20 have -- 21 Q. From when? What moment did the court treat him 22 as an expert? 23 A. I don't know. I can't answer that. 24 Q. Was Mr Jenkins made aware of the change in 25 status that he had enjoyed? 42 1 A. How do you mean? 2 Q. Well, one moment he's a witness of fact in the 3 person who's calling him as a witness, and then 4 the court is treating him as an expert. Was he 5 informed of his change of status? 6 A. He basically was treated as somebody who knew 7 the system well because that's more or less what 8 the court's issue in the case was and I think, 9 as you would be aware, if it -- I think the 10 judge actually said to the defence expert and 11 Mr Jenkins to have as much meeting, as much time 12 as possible, with a view to narrowing the 13 issues, to a point where there was actually 14 a joint report, which both these gentlemans 15 agreed to. 16 Q. Is that normal, in your experience, for the 17 court to order two parties to meet, one of whom 18 is an expert and the other who is a lay witness 19 of fact, and to produce a statement of agreement 20 and disagreement or a joint report? 21 A. Well, I've just said that I think it's -- we've 22 been -- for the last few minutes, I've told you. 23 This is the first experience in the Post Office 24 cases I've ever had, and I think I was very much 25 relying on, you know, our barrister. And 43 1 basically saying "No, no, no, we can't use him". 2 I mean, if he said to me, right from the outset, 3 "Jarnail, we can't use him", then I would have 4 stopped at that moment and see if we can have -- 5 try to find an expert outside, you know, who was 6 basically a professional expert -- you know, who 7 gave evidence in court. 8 But this was the only person that we were -- 9 or who was put forward who knew the system very 10 well, because these is -- this was a very, very 11 specialist system. Only person who could 12 actually -- not only assist the court, but 13 actually went on to assist the defence expert. 14 Q. In this paragraph, you refer to the normal 15 systems and procedures for obtaining information 16 from Fujitsu. What were the normal systems and 17 procedures for obtaining information from 18 Fujitsu? 19 A. I think I'm maybe the wrong person to ask. 20 I don't know to that, because I'm not -- wasn't 21 privy to the contract or the even the 22 relationships. I didn't know people like Penny 23 Thomas existed, you know, the Prosecution 24 Support Office, who was basically -- 25 Q. You say here that you were worried that the 44 1 normal systems and procedures would be too slow? 2 A. Yes. 3 Q. So you must have understood what they were? 4 A. What they were was when the Investigation 5 Officer said, "Jarnail, this can't be done, 6 we've got to do this, we've got to do that", 7 that's when I got hold of Penny Thomas and 8 I think there came a time when she actually -- 9 I think sent me some email as to what the Post 10 Office needed to do, and I think that's what we 11 were discussing yesterday, weren't we, when we 12 were trying to get information from them? 13 But like anything in life, they probably 14 have got set procedures and systems in place, 15 because we -- I've never used them, it wasn't 16 something that I was aware of, intimately. 17 I knew probably there would be because, you 18 know, theirs is a contractual, commercial 19 relationship between two parties: Fujitsu and 20 the Post Office. 21 But as mine is a legal -- is, you know, of 22 the prosecution solicitor in-house, something 23 that I didn't use, I wouldn't be aware of in 24 detail. I mean, I would know in general terms 25 because there would be some relationship, there 45 1 would be something in writing, some contract or 2 agreement, but I can't tell you now as to what 3 they were and, even at that stage, I wasn't 4 aware of it. 5 All I was trying to do, from a practical 6 point of view, from an empirical point of view, 7 from the real-world point of view, was trying to 8 get this thing moving because it's in court, and 9 the judge had to give directions, you know, 10 a timetable as to certain things needed to be 11 done. 12 Q. By the experts? 13 A. Yes, I -- well, yeah -- 14 Q. So was it from that moment, from when the judge 15 gave directions as to the service of expert 16 reports and the meeting of experts, that you 17 treated Mr Jenkins as an expert? 18 A. Well, we couldn't find any experts in the outer 19 world who knew the statement and I did look. 20 I -- 21 Q. No, my question -- and I would really appreciate 22 it if you would -- 23 A. Sorry, let me -- 24 Q. No, hold on -- 25 A. No, let me -- 46 1 Q. I'd appreciate it if you would focus on my 2 question rather than talking about other stuff. 3 A. Okay, fine. Okay. 4 Q. Was it from the moment that the judge directed 5 a timetable for the service of expert reports 6 and that the experts should meet and produce 7 a statement of areas of agreement and 8 disagreement that you treated Mr Jenkins as 9 an expert? 10 A. No. 11 Q. So despite the court treating him as 12 an expert -- 13 A. No. 14 Q. -- you did not? 15 A. At that time, I'm talking about -- no, no. 16 Mr -- I'm talking -- I'm maybe at cross 17 purposes. The time and the dates I'm talking 18 about, Mr Jenkins didn't exist. I didn't know 19 anything about -- I didn't know Mr Jenkins. 20 Q. Okay, let's talk about the thing I'm talking 21 about. 22 A. Okay. 23 Q. When the court directed a timetable for the 24 production of expert reports and directed that 25 the experts should meet to produce statements of 47 1 agreement and disagreement, from that moment on, 2 did you treat Mr Jenkins as an expert? 3 A. What date are you -- we talking about? What are 4 you -- because there's a date where they -- 5 or -- 6 Q. Autumn 2009. 7 A. I think if you've -- I think that they wanted 8 the experts report but we didn't have an expert 9 at this time -- 10 Q. No, when the court issued -- we're going to come 11 to them later, I'm just asking you on this at 12 the moment, we're going to come to look at all 13 of these documents at the moment, but when, in 14 autumn 2009, the court issued directions that 15 mentioned experts on each side, after that 16 point, did you treat Mr Jenkins as an expert? 17 A. No, because Mr -- 18 Q. Why not? 19 A. Mr Jenkins wasn't there. Mr Jenkins only came 20 around about February time. 21 Q. So did you know that Mr Jenkins, as an employee 22 of Fujitsu and somebody who worked day-to-day on 23 Horizon, was a person where the prosecution, 24 perhaps more than in other circumstances, needed 25 to ensure that he understood his duties to the 48 1 court? 2 A. Well, obviously I knew he was an employee 3 because he was recommended by Head of Legal for 4 Fujitsu, by his employer. 5 Q. What about the second bit of the question, then? 6 A. What's that? 7 Q. Did you know that it was all the more 8 important -- he wasn't somebody that enjoyed 9 functional independence, he wasn't 10 independent -- that it was all the more 11 important that you should ensure that he 12 understood his duties to the court? 13 A. Well, you're posing this question, about 10, 15, 14 20 years after. The fact that the -- the focus 15 there -- 16 Q. 13, I think. 17 A. Well, whatever, 13, then. At that moment, 18 I think my other primary concern was to find 19 somebody who knew this very special, specialist 20 system, who knew the system and, as, when the 21 directions were given, around about December -- 22 I don't know whether it was December or -- 23 I don't know what the actual dates were, but the 24 year 2009, say, obviously my concern or the Post 25 Office's concerns should have been -- because 49 1 I did sort of generally let it be known that 2 this is where we are, we need to get an expert 3 to explain the system. 4 And I think the Head of Legal, Rob Wilson, 5 said "Well, we've never had anybody", and 6 I think a few others, Juliet McFarlane, who was 7 basically a head or leading the subpostmasters' 8 cases, she couldn't come up with a name. 9 I looked in the Law Society Gazette for 10 an expert, and I think I went further afield, 11 I think I spoke to a university or -- and they 12 didn't know the system well. 13 And I think that's where David Jones' 14 recommendation of Mr Jenkins came in to being 15 and he came in as somebody who knew the system 16 well. There was obviously -- you know, he's 17 an employee of the employer. Yes, of course, 18 I mean, you know, that follows, then, doesn't 19 it -- well, it doesn't follow but, obviously, 20 yes, I would have been aware of that. But that 21 wasn't the prime consideration. 22 The first consideration was like any person 23 who could assist the prosecution and the court, 24 and then, I think, was to understand the system 25 at that stage and maybe at that stage, we should 50 1 have brought in somebody from -- externally, who 2 was an independent, a bit like the defence 3 expert, to take it all the way to the court as 4 an independent. And that's when the duties 5 you've -- under the common law and under 6 statute, would have come into play. That's when 7 we would have formulated it in a sort of -- 8 well, if he was a professional expert -- 9 SIR WYN WILLIAMS: Mr Singh, I'm sorry to interrupt 10 you but you just told me in one part of a very 11 long answer that you were looking for an expert 12 to deal with the issues arising from Horizon. 13 You told me that you were unable to find such 14 a person and, therefore, Mr Jenkins was 15 introduced to you. What better evidence do 16 I need for the fact that Mr Jenkins was 17 an expert than that which you've just said? 18 A. Well, sir, I understand that but then the -- 19 SIR WYN WILLIAMS: Well, then if you understand it, 20 will you concentrate on Mr Beer's questions and 21 answer them a bit more succinctly, please. 22 A. Sir, it's very difficult to work something in my 23 head as quickly as Mr Beer can, because I'm up 24 at an age and I've been out of practice such 25 a long time -- 51 1 SIR WYN WILLIAMS: Well, take a breath before you 2 answer, think about your answer -- 3 A. I will, sir -- 4 SIR WYN WILLIAMS: -- and then answer -- 5 A. Is there any way I can have a pen and paper and 6 I can sort of do that because I can't -- 7 SIR WYN WILLIAMS: Let's have a morning break and 8 let Mr Singh have some paper and pen to prepare 9 himself. 10 A. That's very kind, sir. I'm very grateful. 11 Thank you. 12 MR BEER: Sir, can we say 11.25, please. 13 SIR WYN WILLIAMS: Yes. 14 (11.11 am) 15 (A short break) 16 (11.25 am) 17 MR BEER: Good morning, sir, can you continue to see 18 and hear us? 19 SIR WYN WILLIAMS: Yes, thank you, yes. 20 MR BEER: I'm pleased to say Mr Singh has now got 21 both a pen and -- 22 A. Thank you very much. 23 Q. -- paper. 24 Can we turn to your witness statement at 25 page 25, please, paragraph 70, fourth line. 52 1 You're dealing here with the conference that you 2 referred to earlier in October 2010 and you say, 3 in the fourth line: 4 "As far as I can recall ..." 5 Then you corrected this to: 6 "... I had more involvement with Mr Jenkins. 7 I cannot recall any discussions where he was 8 informed of his duties to the court although 9 I would have assumed counsel would have informed 10 him of the same." 11 If you were not treating Mr Jenkins as 12 an expert witness, why did he need to be 13 informed of duties that he owed to the court? 14 A. Well, it's such a long time ago, there's been 15 a lot of papers which the Inquiry has provided 16 to me. I honestly can't say that but, 17 certainly, as far as I was concerned, he was 18 a normal witness who was -- who knew this 19 particular system, which the court needed 20 assistance with, and so did the prosecution and 21 the defence as to -- again, an assumption, 22 an assumption from reading the papers. 23 I don't know the ins and outs, don't forget 24 I'd been out -- I've not -- I've not been out -- 25 I've been not doing prosecutions for a long 53 1 period of time. At that time, I would have 2 known, because I attended a lot of courses, 3 I had a lot of the papers with me but, at that 4 particular moment in time, when I am making 5 these witness statements, is relying on a lot of 6 the information, and I'm trying to summarise or 7 be as brief as possible. So I can't honestly 8 answer you why I said what I did. 9 Q. So your position is that you, at no stage, 10 treated Mr Jenkins as an expert witness, but the 11 court did, correct? 12 A. I -- yeah, he was somebody who was there to help 13 and assist like any normal witness would do. 14 Q. Can we look, please, at POL00020489. Thank you. 15 If we scroll to the middle email, thank you. 16 A bit further down. 17 Dealing with a different case here in 2012, 18 September 2012, do you see? You're engaged in 19 a discussion about the choice of expert for it, 20 with Mr Flemington, Mr Bolc, Martin Smith and 21 Harry Bowyer; yes, can you see that? 22 A. Yes, cc'd by Andy Cash, I think was -- 23 Q. Yes, the email is directly to Andy Cash? 24 A. Yes, it's about a discussion with him. 25 Q. So this is about a different case it's two years 54 1 on? 2 A. Yeah. 3 Q. You say in your email: 4 "Thinking about choice of expert in this 5 case." 6 That's the Wylie case, okay? 7 "I have in the past instructed Gareth 8 Jenkins of Fujitsu in the case of Misra, which 9 [incidentally] was the only challenge on 10 Horizon. He provided expertise in dealing with 11 defence's boundless enquiry into the whole 12 system. Perhaps we need to reconsider whether 13 to instruct him as he may be viewed to a close 14 to the system but instruct. 15 "Somebody entirely independent? Your 16 thoughts please ..." 17 You say there "I have in the past instructed 18 Gareth Jenkins of Fujitsu in the Misra case"; 19 that's true, isn't it? You instructed Gareth 20 Jenkins in the Misra case. 21 A. Well, instruct -- well, I -- 22 Q. Is that true? 23 A. He was put forward. I mean, I didn't -- well, 24 what instructions have I given him? That's the 25 whole point. He gave instructions to our 55 1 Investigation Officer, I didn't take any. 2 I never instructed him as such. 3 Q. Why did you say, if you had never instructed 4 him, "I have instructed him"? 5 A. It's terminology, it's wording. Maybe it's 6 clumsy wording. But then, when you're -- this 7 is a while back. This is going back. You're 8 writing something out under pressure. Now, 9 looking at it now, it was clumsy. It shouldn't 10 have been. "In the past, we have used as 11 a witness", or something like that, maybe 12 something -- the word "instructed", in that 13 sense, is probably -- 14 Q. You agree that the language that you used is 15 suggestive of you viewing Mr Jenkins as 16 an expert witness? 17 A. It's clumsy. I -- 18 Q. No, just focus on the question. You agree that 19 the language you used in this email is 20 suggestive of you viewing Mr Jenkins as 21 an expert witness? 22 A. It's -- I -- 23 Q. Yes? 24 A. The meaning isn't in that sense that he's 25 instructed as an expert -- 56 1 Q. Does a solicitor ever instruct a witness of 2 fact? 3 A. No, but, I mean -- 4 Q. Does a solicitor instruct an expert? 5 A. Yes. 6 Q. You said you "instructed Mr Jenkins". Agreed? 7 A. I think maybe -- that's the wrong word. 8 Q. Why did you use it? 9 A. I -- well, this is -- you know, 12 September '12 10 at 15.36, and now we are '23. So I don't know. 11 I mean, I can't put my hand on heart and tell 12 one way or the other but it's clumsy, it 13 shouldn't -- 14 Q. Let's look at POL00031352. This is an email 15 from you to Hugh Flemington and others, dated 16 1 July 2013, with the subject of "Discuss of 17 defect in Horizon in court Seema Misra and Lee 18 Castleton", yes? 19 A. Yes, yes. Sorry, yes. 20 Q. Then if we scroll down, please, paragraph 3 -- 21 if that can be highlighted -- you say in your 22 email: 23 "We instructed our own expert, Gareth 24 Jenkins, from Fujitsu." 25 If you did not instruct Mr Jenkins as 57 1 an expert, why did you say "We instructed" 2 Mr Jenkins as an expert? 3 A. Clumsy. It shouldn't have been. It's wrong. 4 I can't explain to you. I mean, this is years 5 on. He was -- if you -- the best I can put it 6 to you, he was expert -- or he knew the system, 7 Fujitsu, like no other person and he was there 8 to assist all parties, prosecution, defence and 9 the court. 10 Q. Isn't the reality of the position that you 11 either didn't understand what the duties were in 12 relation to the treatment of a person as 13 an expert witness or you simply didn't care 14 enough to see what those duties were and ensure 15 that they were discharged and that, after the 16 fact, you've invented this idea that you were 17 treating Mr Jenkins as a witness of fact 18 throughout and not an expert, to cover for the 19 fact that you very well know that you complied 20 with none of the duties that you owed to him? 21 A. None of what you said is true. 22 Q. So why -- 23 A. I don't agree with it. 24 Q. Why have I been able to find two emails in which 25 you have said, in black and white, that you 58 1 instructed Mr Jenkins as an expert when you say 2 that's exactly what you didn't do? 3 A. The reality is, I attended a lot of courses. 4 I -- at that particular -- 5 Q. That document can come down, by the way. 6 Sorry, you were telling us about courses you 7 attended. 8 A. Yeah, I knew at that time what my 9 responsibilities and duties were. Mr Jenkins, 10 as I explained to you, at that time came in as 11 somebody who knew the system very well, better 12 than anybody else, and he could assist the 13 prosecution, the defence and the court, and 14 that's what he did and he didn't came in as 15 an expert in anything apart from being an expert 16 in the system itself. 17 Q. That explains what you now say. I'm asking you 18 to explain why, in these emails that I've just 19 looked at, you say, "I instructed Gareth 20 Jenkins" and "We instructed own expert, Gareth 21 Jenkins", when you say that's precisely what you 22 didn't do? 23 A. I -- 24 Q. You say it's just clumsiness? 25 A. Clumsiness, laziness, you name it, but it's -- 59 1 he, I think -- 2 Q. Why were you being lazy? 3 A. I think it's probably the day-to-day pressures 4 and I think the other thing is, like any good 5 lawyer, is that you need to -- 6 Q. Use language precisely? 7 A. Well, maybe I should have been more precise and 8 concise. Maybe I'm probably being more informal 9 because it's internal. But, certainly, he was 10 not -- if I -- if the witness statement, that's 11 what I -- is what I've signed up to and that's 12 what I did, and I can't even say why you are 13 asking me that when I've got that witness 14 statement here to that fact that he wasn't 15 instructed as an expert from beginning to end, 16 not by me, and that's the reason why a lot of 17 the -- you know, the statute, common law terms 18 and conditions were not put in that way because 19 he didn't do any of that. 20 All he did, he came in and he explained the 21 Horizon system. 22 Q. So you say you've got a witness statement saying 23 he wasn't an expert? 24 A. No, no. 25 Q. Is that your witness statement? 60 1 A. This what I'm telling you, this is -- 2 Q. Just because you're saying it in a witness 3 statement, doesn't mean it's true, is it? 4 A. Why not? That's why I believed. That's why 5 I signed up to. 6 Q. Right. Okay, got it. So you're saying that 7 because it's in the witness statement you're 8 pointing to on the desk there, it can't be the 9 case that you treated Mr Jenkins as an expert? 10 A. No. No. 11 Q. Aren't you just covering up the fact that -- 12 A. No, no. 13 Q. -- that you know that he was treated -- 14 A. Why would I cover up -- no, no. 15 Q. Because know that you complied with none of the 16 duties that you owed as a prosecutor, so you've 17 rewritten history. 18 A. No. 19 Q. You said, "I didn't treat him as an expert at 20 all. He was a witness of fact throughout", 21 despite how you've described him in these two 22 emails and despite the fact that you attended 23 a conference with counsel with him and chatted 24 through his evidence. 25 A. I don't know -- I mean, I don't know where you 61 1 get that we chatted through his evidence. I -- 2 Q. What did you do? Did you sit there in silence? 3 A. I've no recollection of what -- I mean, I don't 4 know whether you -- but there's a -- 5 an attendance note to that -- 6 Q. No, that's significant. We haven't had 7 disclosed to us an attendance note of what 8 happened at the October 2010 conference. 9 A. Well, as I said to you, when I left the Post 10 Office I didn't take any papers with me. So 11 I can't tell you -- can't assist you any 12 further. 13 Q. Can we turn, then, to the unfolding 14 correspondence over the Seema Misra case and 15 Mr Jenkins' involvement in it and start with 16 FUJ00152843. This appears to be the first 17 communications concerning what was eventually to 18 be Mr Jenkins' witness statements. What I'm 19 going to do is track through they how came to be 20 provided. Okay? 21 This is an email exchange, I think, not 22 involving you, from Mr Longman. He says: 23 "Jane 24 "I attach a report from the defence expert 25 where he has highlighted a number of problems 62 1 with the Horizon system. Warwick Tatford has 2 asked that the problems with Horizon that he has 3 raised in his report are replied to in a witness 4 statement form. I presume that an employee of 5 Fujitsu would have to produce the witness 6 statement. 7 "In addition to this, the defence have also 8 requested the following information ..." 9 Yes? 10 A. Yes. 11 Q. Can you help with why it was the Investigator, 12 rather than you who was seeking a response to 13 the expert evidence? 14 A. I honestly don't know. I can't help you with 15 that. 16 Q. Was that usual, that the Investigator would 17 commission evidence like this from Fujitsu 18 rather than you doing it? 19 A. I don't know. I mean, I can't explain it. It's 20 such a long time ago. I mean, I can't really -- 21 I've been out of this area of law. I can't 22 really deal with too much detail you're looking 23 into. I can't help you. 24 Q. But would you agree that, at the moment here, 25 the communication from the Investigator is not 63 1 treating Mr Jenkins' evidence as potentially 2 expert evidence. It's asking for a reply to 3 expert evidence in a witness statement. 4 A. Yes. 5 Q. You're not copied into this, I think? 6 A. No. No. 7 Q. Now, at the same time as this was going on, can 8 we look, please, at POL00053723. Can you see 9 this is dated -- sorry, if we scroll down, 10 please -- 11 December 2009. Mark Dinsdale, can 11 you remember who he was? 12 A. I don't know, one of the Investigation Officers 13 I think, but I've -- 14 Q. Okay. 15 A. -- whether I've had direct instructions from 16 him, I don't know. 17 Q. He emails Mr Wilson: 18 "Rob, I am looking for a bit of guidance on 19 this request from Jon Longman in respect of 20 Seema Misra." 21 That's the one we've just looked at. 22 A. Yes. 23 Q. "This is a huge piece of work that could 24 potentially wrap up my team for weeks and then 25 only to be asked more questions of a similar 64 1 nature. I have also concerns over the types of 2 questions that are being asked and whether we 3 can actually provide the information ... 4 "We are a new team and would really 5 appreciate your guidance on this, on how to move 6 this one forwards. Are these questions that 7 yourselves need to answer from a legal 8 perspective? Clearly some of these questions 9 are so unspecified, that we could be dragging up 10 Horizon reports for almost every branch over 11 a ten-year period for every single week in 12 [question]. 13 "I hope you can help provide some advice and 14 guidance on this one. Thank you." 15 Then if we scroll up, please, you send that 16 on to Warwick Tatford. You reference the email 17 and say: 18 "... he raises number of queries and wants 19 solutions to the disclosure which have in my 20 view unreasonably and unnecessarily been raised 21 by the Defence." 22 You seek advice and you say: 23 "This may have a wider implication for the 24 business and ... look forward to receiving [his] 25 advice as soon as possible." 65 1 Can you explain, in relation to this 2 request, why you regarded the defence request as 3 unreasonable and unnecessary? 4 A. I can't. Because I don't know what information 5 they're requiring. 6 Q. If we scroll down, we can look at it. It's at 7 the foot of the page, it starts with (1): 8 "Please find attached a statement from 9 Eleanor Nixon ... please provide the following 10 information ..." 11 Then over the page. If you read that slowly 12 to yourself, and then scroll down. If you read 13 (2) and (3) to yourself, and then scroll down. 14 There's a reference to some other cases, 15 including Macdonald and Hosi. 16 Then over the page: 17 "Please provide details of: 18 "Post offices, past and present, that have 19 experienced losses with the Horizon system. 20 "Prosecutions, past and present, that have 21 been brought for theft or false accounting, as 22 a result of alleged losses." 23 Let's go up to page 1. Why did you regard 24 the defence request as unreasonable and 25 unnecessary? 66 1 A. I can't answer that. I don't know, you know, 2 years on. 3 Q. Can we see what Mr Tatford said when he replied, 4 POL00044557. This is Mr Tatford's advice. Take 5 it from me it is dated 5 January 2010. 6 A. Yes. 7 Q. If we can go to paragraph 6 and 7, please, which 8 I think is on page 2. He says: 9 "... I would wish some further enquiries to 10 be made from Fujitsu. Paragraph 23 of the 11 Castleton judgment refers to the evidence of 12 Anne Chambers. When she was cross-examined she 13 appears to have had knowledge of an error in 14 Horizon that had occurred at Callendar Square in 15 Falkirk ... 16 "I have seen some civil paperwork in 17 relation to Alan Brown but not concerning 18 a Horizon error. I don't know if Anne Chambers 19 still works for Fujitsu but it should be 20 relatively straightforward for Fujitsu to 21 provide full information about what appears to 22 have been a well-known problem at Callendar 23 Square." 24 Then 7: 25 "I think our disclosure duty requires us to 67 1 ask Fujitsu whether they are aware of any other 2 Horizon error that has been found at any other 3 sub post office". 4 Then he says: 5 "I anticipate that there will be none but it 6 is important that the check is made." 7 Before approaching Fujitsu, would you agree 8 that, as the prosecutor, the Post Office was 9 under a duty to disclose any information which 10 it, the Post Office, held about, firstly, the 11 Callendar Square bug, or, secondly, awareness of 12 any other Horizon errors that had been found at 13 any sub post office? 14 A. Certainly, if it undermines the prosecution case 15 and it assisted the defence, that's what the 16 test is. 17 Q. So what did you do, then, to obtain from the 18 Post Office itself, before going to Fujitsu, 19 documents falling within either of those 20 categories? 21 A. I don't recall what I did or didn't do. I mean, 22 it's years ago. I can't tell you chapter and 23 verse what we did or didn't do. I can't answer 24 that, you know, 10/12 years on, I -- 25 Q. Did you ever consider that the Post Office 68 1 itself owed disclosure duties of the kind that 2 I've mentioned, before turning to Fujitsu, 3 ie looking within itself at all departments or 4 branches within the Post Office for information 5 that tended to suggest that there were errors 6 within Horizon capable of affecting the 7 integrity of financial accounts? 8 A. Again, I can't answer that but, certainly, it 9 would have been highlighted to the team 10 internally. 11 Q. How would it have been highlighted to the team 12 internally? 13 A. Certainly, this advice would have gone to the 14 Head of Criminal Law Team. And then I would 15 have got -- seek guidance -- directions from it 16 as to how we go about doing it. But, I mean, 17 I can't -- 18 Q. I'm asking about a different thing at the 19 moment. I'm asking about, before you go to 20 Fujitsu and asking them whether they have got 21 information about Horizon integrity issues, to 22 use a portmanteau phrase -- 23 A. Yes. 24 Q. -- whether you went to anyone within the Post 25 Office to see whether there was such 69 1 information? 2 A. I don't know. I mean, I can't tell you what we 3 did. It was so many years ago. But certainly 4 we got -- certainly, if we had the information, 5 we would have considered it and we would have 6 dealt with it. 7 Q. You see the way that Mr Tatford has expressed 8 himself here -- 9 A. Mm. 10 Q. -- would you agree that he is asking that 11 enquiries be made of Fujitsu, the corporation, 12 on both fronts, not enquiries be made of 13 Mr Jenkins? 14 A. Yes, that's what he implied -- well, that's what 15 he's saying or that's what he's saying, but it 16 doesn't mean to say that we haven't carried out 17 internal enquiries. But I can't tell you what 18 we -- how we went about doing that. I don't 19 know the answer to that question, I don't 20 recall. I mean, as to how we went about doing 21 it. 22 But, certainly, if we had the information or 23 we would have sought it, I suppose. But 24 I don't -- I can't answer that. I can't give 25 you, you know -- so I don't recall now, so many 70 1 years ago. 2 Q. But on the separate issue of -- let's put aside 3 what documents the Post Office has got going to 4 each of these two points. When we turn to 5 a third party, Mr Tatford is advising that the 6 corporation be approached in relation to both 7 issues, not that Mr Jenkins be approached in 8 relation to both issues? 9 A. Yes. 10 Q. Agreed? 11 A. Yes. 12 Q. Can we go on, please, to FUJ00152887. We're now 13 at 27 January 2010. This is a communication 14 from Mr Longman to Fujitsu, Penny Thomas in 15 Fujitsu. Can you see he says: 16 "Our defence barrister has asked for all of 17 Gareth's replies in relation to the defence's 18 second interim report to be produced as 19 a witness statement. I would suggest that the 20 question from the defence is reproduced and then 21 Gareth's replies are recorded immediately after 22 for clarity purposes." 23 Then there's some timing issues. 24 Again, why was Mr Longman, rather than you, 25 communicating with Fujitsu as to the evidence 71 1 that needed to be sought? 2 A. That's the Post Office system. That's what we 3 did. I mean, even the -- certainly in private 4 practice, I took -- or the solicitor or his 5 assistant, if you like, or his personal 6 representative took the witness statements but 7 in Post Office, ever since I've been there, it 8 was always the Investigation Officer who did 9 the -- did that. And -- but, in these 10 circumstances, I don't know. That's -- that's 11 what the process was. 12 Q. You're not even copied in on this, so this is 13 going on without your knowledge; is that right? 14 A. Isn't that -- I can't, I don't, I mean, I'm not 15 copied into this particular one. I don't know 16 whether he sent me anything else. I can't 17 recall, I don't remember. 18 Q. Let's go on to POL00053745. You can see that 19 you're the author of this memo. 20 A. Mm. 21 Q. It's addressed to Post Office Security, with 22 a copy to the Investigator, Mr Longman. You 23 say: 24 "I now enclose Counsel Warwick Tatford's 25 advice and would be grateful if you would kindly 72 1 please deal with the outstanding matters with 2 regard to the disclosure which the defence are 3 seeking and should deal with it paragraph by 4 paragraph so it is probably easier to deal 5 with." 6 Yes? 7 A. Yes. 8 Q. So, essentially, you're postboxing on counsel's 9 advice, saying "Can you, please, Investigator, 10 deal with it all"? 11 A. I think that's -- that's how we -- that's what 12 the process was. We didn't -- was to actually 13 send the advice to the Investigation Officer not 14 to -- I mean, there's certain bits he obviously 15 couldn't deal, which we would have dealt with or 16 somebody else he could -- who would have 17 knowledge of. But that the way the system or 18 the process worked. I mean, I can't say any 19 more than that but, I mean ... 20 Q. You remember Mr Dinsdale had raised questions 21 about the scope of the disclosure that the 22 defence were seeking? 23 A. Yes. 24 Q. You had commented that it was unreasonable and 25 unnecessary. Then Mr Tatford had advised that 73 1 these are the things you need to do. Where you 2 say in the last line or the penultimate line, 3 "Please advise Mark Dinsdale accordingly", were 4 you telling Mr Longman that he should feed back 5 to Mark Dinsdale the response to his concerns of 6 the parameters of the defence's disclosure 7 requests? 8 You weren't responding to Mr Dinsdale 9 yourself, "This what I think, this what counsel 10 thinks about the disclosure requests, it's going 11 to tie up the department, it's going to grind 12 work to a halt". You were saying, "Here's the 13 advice, you, Jon Longman, tell Dinsdale that's 14 the outcome". Correct? 15 A. I don't know, I mean, at that particular moment 16 in time, I don't know where we were or what we 17 were thinking but it's presumably just a simple 18 thing, "Well, look, Mark, I've got counsel's 19 advice, I'm dealing with it", you know, just to 20 keep him informed, and say "Well, look, it's 21 been dealt with" or "It's in hand". 22 I mean, I can't tell you precisely. I don't 23 know the answer to that, as to, you know, what 24 you're asking me about that. But all I'm saying 25 is that, you know, they presumably, both 74 1 Investigation Officers -- to say, "Look, Mark 2 it's been dealt with", or, "I'm dealing with 3 it". 4 Q. So you faithfully sent on counsels's advice to 5 Mr Longman, yes, agreed? 6 A. That's what? Yes. I mean, yes, that's what I'm 7 doing. 8 Q. You'll remember that Mr Tatford had advised: 9 "Our disclosure duties require us to ask 10 Fujitsu whether they're aware of any other 11 Horizon error that has been found at any sub 12 post office." 13 Remember? 14 A. Yes. 15 Q. If we just go back, please, to FUJ00152887, and 16 scroll down. This email from Mr Longman to 17 Penny Thomas in Fujitsu doesn't include that 18 question, does it? 19 A. What question, sorry? 20 Q. Let's try and look at two questions on the 21 screen at the same time to try to help you. Can 22 we have on the left-hand side POL00044557, and 23 look at the second page of the left-hand 24 document -- sorry, third page. Can you read 25 paragraph 7: 75 1 "I think our disclosure duty requires us to 2 ask Fujitsu whether they are aware of any other 3 Horizon error that has been found at any sub 4 post office." 5 Yes? 6 A. Yes. 7 Q. Then look at the email on the right-hand side: 8 what was, in fact, communicated to Fujitsu. 9 A. Yes. 10 Q. It doesn't include that, does? 11 A. What's he attaching? "See attached below", 12 I don't know -- to be produced as ... is that -- 13 Q. That's Professor McLachlan's second interim 14 report? 15 A. Oh, yes, sorry. It's not there. Yeah. 16 I confirm. Yeah, I agree. 17 Q. That's a significant omission, isn't it? 18 A. I -- yes. Yeah. 19 Q. Prosecution counsel has said that "The 20 prosecutor's disclosure duties require us to ask 21 Fujitsu whether they're aware of any other 22 Horizon error at any sub post office", and that 23 question is not asked there, is it? 24 A. No, it doesn't appear to be, no. 25 Q. All of this was going on without your knowledge, 76 1 wasn't it? You just weren't involved in it, 2 were you? 3 A. I'm not copied in. 4 Q. Why was it going on without your knowledge? 5 A. I'm not -- I can't answer that, I don't know 6 why. But that's -- I can't answer that. 7 I don't know. I don't recall. 8 Q. Can we go to POL00044553, please. This is your 9 letter -- if we just go to the last page, see 10 you signed it off, go to the first page, 11 please -- of 27 January to the defence 12 solicitor, Issy Hogg: 13 "Counsel is drafting his response to the 14 Section 8 disclosure application." 15 Turning to the request for further 16 disclosure. Scroll down, please. You deal with 17 the contract, training. 18 Over the page, please. You respond to 19 investigations. 20 Scroll down, please, and scroll down again. 21 Under "Horizon System", you say: 22 "We can understand why you would want to see 23 specific areas of the Horizon data. Your expert 24 will want to check his theories against the 25 relevant data. Your client will also presumably 77 1 be able to direct you through specific types of 2 transactions where she feels errors may have 3 occurred. We do not understand how your expert 4 will be assisted by being presented with 5 a mountain of data covering five years." 6 You say that: 7 "Horizon has undergone stringent testing 8 before it was installed." 9 Then, over the page, please, and then under 10 19, you say in the second part of it: 11 "The Investigation Officer Jon Longman said 12 he is preparing to meet the Defence Expert with 13 one or more representatives from Fujitsu to 14 discuss technical issues and reach as much 15 agreement as possible. This will obviously 16 avoid much wasted time. Could you consider the 17 point and revert back to [you]." 18 So you were making an offer that Mr Longman 19 would meet the defence expert with some 20 representatives of Fujitsu to discuss technical 21 issues, correct? 22 A. Well, that's my instructions. It's not 23 something I arranged. It was something I was 24 instructed to put forward. 25 Q. Who instructed you? 78 1 A. Um -- 2 Q. Would that be the Investigator? 3 A. Um ... um, that's what it says. I mean, it 4 wouldn't be -- I wouldn't be doing it on my own 5 back. It would be instructions come from The 6 Investigation Security Team, via Jon Longman. 7 As to who authorised it, presumably he has 8 spoken to Fujitsu and who are happy to do it. 9 So -- 10 Q. Would your understanding -- and, after all, this 11 is your letter -- be that such Fujitsu 12 representatives who attended such a meeting 13 would be attending the meeting in the capacity 14 as operators of the system with some knowledge 15 of it, or attending such a meeting as instructed 16 expert witnesses? 17 A. I don't know what you're asking me here. 18 I mean, if you break it down a little bit, 19 because this is years on. I mean, I'm trying to 20 assist the Inquiry as much as I can. I don't, 21 you know, know the case now in as much detail as 22 I did at that particular moment in time. 23 So if you break it up, then certainly I can 24 help, otherwise I can't recall as to precisely 25 the nature of that communication as to -- but 79 1 I can tell you it would be something, you know, 2 like any client instructing a solicitor to do, 3 and that's why I'm putting it forward to the 4 defence solicitor. 5 Q. So can I take from that, that you would just 6 relay instructions, you didn't apply your mind 7 what's happening here: a defence expert coming 8 in to the premises of the operators of our 9 system and meeting them? What's really going on 10 here? In what capacity are these 11 representatives from Fujitsu meeting this 12 defence expert? 13 You would have just forwarded, essentially, 14 what your instructions were? 15 A. No. I don't know what I did at that particular 16 moment in time, it's such a long time ago. But 17 it certainly would have been discussed and 18 considered. I mean, certainly Fujitsu wouldn't 19 allow any person just to enter. There would be 20 certain conditions as to it and I think it may 21 just be -- I mean, maybe I shouldn't really 22 speculate. 23 I honestly cannot assist and help the 24 Inquiry with that but, certainly, it would be 25 considered. It wouldn't be post and paste job 80 1 saying "Well, look -- you're welcome to do 2 this". It's not as simple as that. 3 Q. Okay, we'll move on. 1 February, please. 4 FUJ00152902. If we scroll down, please, so it's 5 over the page. Thank you. Jon Longman to Penny 6 Thomas: 7 "At a pre-court hearing today, the judge 8 ordered that all the dense requests for further 9 information be answered by 4.00 pm on Monday, 10 8 February. 11 "Our solicitor in the case has asked that 12 Gareth's statement is completed by Wednesday of 13 this week so that he and our barrister can 14 examine the statement." 15 Just stopping there: the solicitor in the 16 case, that would be you, would it? 17 A. Yeah, yeah. 18 Q. "Gareth's statement needs to cover the following 19 four points: 20 "1) Our defence barrister has asked for all 21 of Gareth's replies in relation to the defence's 22 second interim report to be produced as 23 a witness statement." 24 That's essentially repeating the email we 25 saw earlier. 81 1 "2) My barrister telephoned me yesterday 2 evening and requested that I find out any 3 information that Fujitsu may hold relate to 4 an office called Callendar Square in Falkirk. 5 Apparently, Anne Chambers, assistant specialist 6 employed by Fujitsu, was cross-examined", 7 et cetera, et cetera. 8 "Our barrister would like Gareth to deal 9 with this matter and expand upon whatever issue 10 Anne Chambers raised at court." 11 So you remember, that reflected paragraph 6 12 of Mr Tatford's advice, agreed? 13 A. Well, I -- yes, yeah. 14 Q. Okay. Then, next, third: 15 "When Gareth completes his statement could 16 he also mention whether there are any known 17 problems with the Horizon system that Fujitsu 18 are aware of. If none, could this be clarified 19 in the statement." 20 That's different from what Mr Tatford had 21 advised, isn't it? 22 A. Yes, it is. Of course it is. 23 Q. What do you notice about the difference? 24 A. In hindsight, yes, but at that moment, I don't 25 know what it was. But, certainly, you know, if 82 1 you -- I can't recall word for word what that 2 was but, if you bring the other one up and then 3 you can see there is a difference, there is 4 a marked difference. 5 Q. Let's do the left-hand/right-hand side thing 6 again. Left-hand side, POL00044557, page 3, 7 paragraph 7. 8 A. (The witness read to himself) 9 Q. Compare paragraph 7, left side, to paragraph 3. 10 A. There appears to be something missing, isn't 11 there? I don't know what? 12 Oh, yes. Yes. That Horizon error should 13 have been in there, yes. 14 Q. Sorry, I can't hear you? 15 A. Yes, there obviously is a difference, yeah -- 16 Q. What differences do you notice? 17 A. Well, the Horizon errors. It doesn't say 18 anything about that, does it, Horizon system 19 that Fujitsu were aware of? It doesn't mention 20 errors. 21 Q. Well, the first thing is that the advice from 22 Mr Tatford is that it should be a request made 23 to Fujitsu, yes? 24 A. Yes. 25 Q. That's been translated into a request for 83 1 a mention by an individual, namely Gareth 2 Jenkins. They're different things, aren't they? 3 A. Now, I'm looking at it with the time, careful 4 focus, yes. 5 Q. It's a watering down, isn't it? 6 A. It shouldn't have been but it did -- it is what 7 it is. To be honest, I -- now that we got the 8 time and being able to focus on it and you've 9 certainly highlighted it, yes. But I can't 10 recall what we did at that particular moment or 11 when -- or the way it came back, or whether we 12 did anything after that. I don't know. But 13 I can't explain that to you. Or I -- because 14 I don't remember. I don't recall. 15 Q. Did you have any input into how the question was 16 reformulated, that it was turned from a request 17 to ask Fujitsu, the corporation, of whether it 18 was aware of any other Horizon error in any sub 19 post office to a request to an individual to 20 mention if there are any known problems that 21 Fujitsu are aware of? 22 A. I don't recall. 23 Q. You don't recall whether you had any input into 24 the reformulation of the question? 25 A. That bit I obviously -- that is, you know, Jon 84 1 Longman's email. But, certainly, I don't recall 2 what transpired after that. 3 Q. Do you agree that the request that's now 4 directed to Mr Jenkins has conflated the 5 separate issues of a response to the defence 6 expert report and the Post Office's own response 7 to the defence's request for disclosure, in 8 respect of which Mr Tatford had advised? 9 A. So long -- I can't explain, because I haven't 10 got the details or -- you know, 10 years on, 11 12 years on, it's different. But, I mean, 12 I can't answer that, I don't know to -- to your 13 question. I don't recall and I can't really 14 answer that. 15 Q. Were you aware at the time of a prosecutor's 16 duties in respect of third-party disclosure or 17 obtaining material from a third party? 18 A. What, you mean internally or generally; how do 19 you mean? 20 Q. I'm afraid I can't express it any better than 21 that, even if I rearrange the words in the 22 sentence. 23 A. I don't -- at the moment, I can't tell you what 24 the duties were. Maybe at that time, certainly 25 I would have been but, I mean, to look at it in 85 1 that much depth and detail now, I -- I don't 2 know. I mean, the answer to that, I don't 3 recall where we -- 4 Q. Would you agree that when a prosecutor is 5 approaching a third-party, in order to assist 6 it, the prosecutor, in discharging its 7 disclosure obligations, it should explain to the 8 third party that it is doing so and the 9 importance of third party conducting enquiries 10 itself that are both recorded and auditable in 11 order that the prosecutor can then explain to 12 the court what it has and hasn't done to 13 discharge its disclosure obligations? 14 A. I can't recall as to whatever you're asking me; 15 purely, at that time, I probably would -- 16 I would assume so, because I had been up to date 17 with a lot of the legislation or a lot of the 18 requirements, but I can't answer to you now, 19 moving on, because all the information you 20 provided. 21 And now it's completely different in the 22 sense that I had the chance to look at it but 23 even then I had -- my head is not -- the 24 prosecution hat on it, or head on it, purely 25 trying to assist the best I can the Inquiry. 86 1 Q. Would you agree that a prosecutor seeking 2 disclosure from a third party should explain to 3 the third party the nature of the duties that 4 both it, the prosecutor and the third party, 5 were under; give some guidance to it? 6 A. I don't know. I don't recall as to what we -- 7 what the relationship is here within Fujitsu in 8 partnership. I mean, as I say, I don't -- not 9 got involved in the contractual or commercial 10 side of the business, as to how we went about 11 getting information of Fujitsu and -- but, 12 certainly, I -- you know, years on now, I can't 13 tell you what I knew then or I didn't know at 14 that particular moment in time. So I can't 15 assist you any more than what I've just said. 16 Q. Do you agree that this watering down that we see 17 here, essentially means that what was advice 18 from counsel to ask a corporation whether it was 19 aware of any other Horizon issue at any other 20 sub post office, has been turned into a rather 21 casual request to an individual that they might 22 mention anything in their witness statement of 23 problems of which Fujitsu was aware? 24 A. Well, that's what it appears to be but, as to 25 what the reality was at that particular moment 87 1 years ago, I don't know. But, certainly, 2 indeed, from the information you've given me, 3 I can't really give you much depth, detailed -- 4 Q. In any event, this didn't, on the face of it, 5 amount to an instruction to Gareth Jenkins, as 6 an expert witness in the case, did it? 7 A. Well, as you said, that email is not copied to 8 me, so I'm not aware as to what the -- whether, 9 you know, Gareth -- well, he's obviously saying 10 Gareth Jenkins should deal with it but, 11 certainly, I can't give you any more detail than 12 the fact that I don't know. 13 Q. I mean, taking a step back, would you agree 14 overall that what we've seen so far is that the 15 Post Office appears to be proceeding on the 16 basis that it needs some information from 17 Fujitsu in order to disclose its obligations as 18 a prosecutor by way of disclosure, and that has 19 been conflated with a request being made to 20 Mr Jenkins to provide a response to a defence 21 expert report? 22 A. I -- 23 Q. That's what it looks like, doesn't it? 24 A. Well, it looks that way but I can't say for sure 25 as to -- a lot of the time, as the information 88 1 comes, and then you look at it and you review it 2 and then you, you know, flesh it out a little 3 bit more. I mean, that's our -- some of the 4 information is dealt with, but I can't really 5 assist you or the Inquiry any further than 6 what's in front of you. 7 Q. Can we move forward a few days to see when you 8 become directly involved, to 5 February 2010, 9 FUJ00122713. If we scroll down, please, can we 10 see at the foot of the page your email to David 11 Jones at 5 February, at 12.34, and you say, 12 "Dear Mr Jones", if we carry on down the page: 13 "I refer to our telephone conversations of 4 14 and 5 February 2010 with regard to the obtaining 15 of a witness statement of the defence 16 challenging the reliability of Horizon. 17 I understand that Mr Jenkins has been identified 18 as an experienced person to give this statement. 19 I would be grateful, after your meeting this 20 morning, if you could confirm to me when 21 Mr Jenkins would be back to return to duty after 22 his sick leave ..." 23 There's a court order with a deadline of the 24 8 February. 25 By this time, had you seen the exchanges of 89 1 1 and 2 February that we'd looked at earlier? 2 A. I don't know. I mean, I -- I can't recall as to 3 where we are. You know -- 4 Q. Just scroll down a little bit further. I think 5 that's the end. So this doesn't appear to 6 attach the chains that we've looked at earlier 7 of 1 and 2 February, with communications from 8 Mr Longman into Penny Thomas. 9 If we scroll back up to your email. It 10 seems like you spoke with Mr Jones on 4 and 11 5 February. 12 A. Yes. 13 Q. Why had you become involved at this stage? 14 A. I don't -- I don't -- I don't know, to be honest 15 with you. I don't recall as to -- all I know is 16 I've spoken to him and he's -- I've asked for 17 help, assistance with somebody who can help and 18 assist with the prosecution. 19 Q. Okay, if we scroll up, please -- 20 A. That's about it. I mean, I don't know the ins 21 and outs of why not -- 22 Q. -- and look at Mr Jones' reply: 23 "Jarnail, 24 "Thank you for your attached email -- which 25 I have now received!" 90 1 It looks like there have been some problem 2 getting there: 3 "I met this morning with Gareth Jenkins who 4 came [back] into the office briefly to meet with 5 me. Gareth will help with this matter. His 6 input will be coordinated by Penny who is 7 responsible for delivery to [Post Office 8 Limited] of support in the Security area. 9 "Ahead is a first draft of a statement from 10 Gareth. I would like you to review it and 11 indicate if it answers the questions in the 12 detail you require. 13 "You will see that there are some areas 14 where Fujitsu cannot deal with the Defendant's 15 expert's criticisms as they are about [Post 16 Office Limited] procedures or requirements and 17 it seems evident that there will need to be 18 a [Post Office Limited] internal 'expert' who 19 can work with Gareth to deal with these areas. 20 "One concern is that [Post Office Limited] 21 have not apparently requested transaction data 22 for West Byfleet for the period and transactions 23 in question. This would normally be provided in 24 previous cases and would include Fujitsu 25 extracting log files from the system to enable 91 1 us to provide details of transactions. 2 Surprisingly, this has not been requested in 3 this case. Perhaps you would consider the need 4 for this." 5 So Mr Jones, the Head of Legal within 6 Fujitsu, is saying, firstly, that Mr Jenkins is 7 going to help you, he's enclosing a copy of 8 Mr Jenkins' statement and asking you to look at 9 it and see whether it answers the questions that 10 you require in the right detail. There's going 11 to be some things that he can't address, that 12 there needs to be somebody from within the Post 13 Office who can work with him to deal with those 14 areas, but there's a concern that transaction 15 data hasn't been requested and that's 16 surprising, agreed? 17 A. Yes. 18 Q. Mr Singh? 19 A. Oh, sorry. 20 Q. Yes? 21 A. Yeah, that's what it says. 22 Q. Okay. Can we look, please, at POL00029369. If 23 we scroll down, please, your email at 3.39 on 24 5 February. I'm so sorry, scroll down a bit 25 further. Thank you. 92 1 Your email sent by your secretary at 2.53 to 2 Jon Longman and to Warwick Tatford. Can you see 3 that? 4 A. Yes. 5 Q. "Dear John and Warwick, 6 "Herewith statement from Gareth Jenkins. 7 Just all of the press. Please let me have your 8 comments and whether this is adequate for our 9 purpose or does it require any additions before 10 being served on the Defence." 11 If we just scroll down a bit further, we can 12 see that you sent them as well, Mr Longman and 13 Mr Tatford, Mr Jones' email that we just looked 14 at, yes? 15 A. Sorry, say that again? Mr Jones' email? 16 Q. Yes, you're forwarding, to Mr Tatford and 17 Mr Longman, Mr Jones' email. You're giving them 18 the first draft of the Gareth Jenkins statement? 19 A. Yes, yes. 20 Q. You're also giving them the text of Mr Jones' 21 statement, raising the four issues that I've 22 mentioned. Yes? 23 A. Can you put two -- I don't know. I can't see 24 the -- yes, okay, yeah. Yeah. 25 Q. Then if we scroll up, please, and keep going. 93 1 Thank you, stop there. 2 If we look at Mr Longman's reply to you, 3 same day at 3.39. He says: 4 "Jarnail. 5 "Points 2-4 have not been answered which 6 I reproduce below." 7 So he's cutting in the request that he, 8 Mr Longman, had made to Penny Thomas into 9 an email to you and saying Mr Jenkins hasn't 10 answered them. We can see them cut in, points 11 2, 3 and 4. Point 2 is the Callendar Square bug 12 in Falkirk, yes? 13 A. Yes. 14 Q. Point 3 is: 15 "When Gareth completes his statement could 16 he also mention whether there are any known 17 problems with the Horizon system that Fujitsu 18 are aware of. If none, could this be clarified 19 in the statement." 20 So what Mr Longman is telling you is that 21 even the watered down request hasn't been 22 addressed by Mr Jenkins in his draft statement, 23 agreed? 24 A. Yes. 25 Then 4 isn't relevant for our purposes. 94 1 Then if we scroll up, please -- stop 2 there -- Mr Tatford replies to you the next day: 3 "[Mr Longman] sets out in his email below 4 the extra matters I asked Mr Jenkins to look at. 5 "The areas where Jenkins says 'for POL to 6 respond' should be deleted. These will lead 7 only to a flood of further disclosure requests 8 and I am afraid that Post Office will never 9 respond." 10 But let's see what you did with Mr Longman's 11 response, FUJ00122729. 12 If you remember, you received the email at 13 3.39 from Mr Longman. You say to Fujitsu, 14 ie David Jones and Penny Thomas and Gareth 15 Jenkins: 16 "Dear David and Penny, 17 "On first glance points 2-4 have not been 18 answered which I reproduce below." 19 Then you cut in points 2, 3 and 4 from 20 Mr Longman's email; do you see that? 21 A. Yes. 22 Q. "Please give this matter your urgent attention. 23 Look forward to hearing from you." 24 So you were going back to Fujitsu here and 25 saying, "We've asked you to mention whether 95 1 there are any known problems with Horizon of 2 which Fujitsu is aware, and you haven't answered 3 the question". Was that a concern to you? 4 A. I don't recall. I mean, I can't give you any 5 reply to that. I obviously considered it at 6 that particular moment in time, I think, as you 7 know, straightaway, in trying to put something 8 together, because there is time constraints on 9 it. 10 But I -- you know, I mean -- with these 11 enquiries, with the papers, I haven't had time 12 to, you know, reconsider to the detail you're 13 asking me, so I am sorry, I can't help you as to 14 what you're asking me, you know, years on, 15 and -- 16 Q. What we've seen is a defence disclosure request 17 being sent to prosecution counsel, him advising 18 that a course of action needs to be taken. That 19 course of action being watered down. That being 20 sent to Fujitsu and Fujitsu not addressing it. 21 Then you writing to them and saying, "You've not 22 answered our questions", agreed? 23 A. Yes, that's what -- yes. 24 Q. Again, still at this point and looking at the 25 issue of your treatment of Mr Jenkins, in the 96 1 emails we've seen, you are not seemingly 2 instructing Mr Jenkins as an expert by reminding 3 him or drawing to his attention of any of the 4 matters that the Criminal Procedure Rules or the 5 common law required, correct? That's just not 6 a feature of these email exchanges, is it? 7 A. No, this is -- yeah, agreed. Yes. 8 Q. Was it a significant concern to you that 9 Mr Jenkins had not addressed the issue of 10 whether there were any known problems in the 11 Horizon system? 12 A. Again, I don't -- I can't answer that. 13 Q. Because it ought to have been, oughtn't it? 14 A. Sorry, I don't know. 15 Q. You've got a defence expert saying there are 16 problems with the Horizon system, you've asked 17 somebody with expertise within Fujitsu whether 18 there are known problems with the Horizon system 19 and he hasn't addressed it. 20 A. I can't answer that for -- 21 Q. Did that position ever change? 22 A. I don't know. I -- 23 Q. The question that Warwick Tatford had asked, 24 whether in its original form or in its watered 25 down form, was that ever addressed squarely and 97 1 head on by either Fujitsu or Mr Jenkins? 2 A. I can't recall. I can't give you yes or no 3 answer to that. 4 Q. Did you press that point, "We need an answer, 5 Fujitsu, to this fundamental question"? 6 A. I don't know. I mean, I haven't read the 7 papers -- I mean the only thing is that what you 8 supplied me in the -- you know, the Inquiry 9 papers. I -- years on, I can't ask -- you know, 10 I can't answer that in detail. 11 Q. Would you have realised that, if Fujitsu 12 revealed known problems with the Horizon system, 13 that would be significant information, not only 14 for this prosecution but for a number of 15 prosecutions? 16 A. Of course it would be. 17 Q. It could bring an end to prosecutions? 18 A. Yes, it -- well, if there is problems and 19 an error, it should bring an end to 20 prosecutions. We shouldn't proceed with it. 21 Q. So it's a point that needs to be pressed hard, 22 isn't it? 23 A. But I -- as I say, I'm not the only lawyer 24 dealing with these cases. Certainly, you know, 25 if I'm aware of something like that, then, yes, 98 1 it should be. Should be, yes. 2 Q. Can we move on, please. FUJ00122731. This is 3 still later in the day, on the 5th, 4.28 pm. 4 You to Fujitsu again, Jones, Thomas and Jenkins: 5 "Dear David, 6 "Please also get Gareth Jenkins to comment 7 on the enclosed report." 8 That's the third McLachlan report, with 9 a deadline of Monday, 8 February. So I think 10 you're sending this at 4.30 on a Friday, by the 11 look of it. 12 A. I have no idea as to what day it was. 13 Q. Well, if Monday was the 8th -- 14 A. Well, I -- probably -- 15 Q. The 5th would have been the Friday, wouldn't it? 16 Yes? 17 A. I don't know but if you say so. I agree with 18 you. 19 Q. Let's work out. 20 A. No, no, you don't have to work it out. If you 21 say so, it must be -- 22 Q. I don't want to get to the stage in asking you 23 questions of how a calendar works, Mr Singh. 24 A. No, if -- 25 Q. You oughtn't to be so suspicious of me that if 99 1 I tell you that Friday was the 5th -- 2 A. No, I'm not suspicious, I'm just saying -- well, 3 years on. I can't tell you the reason why but, 4 certainly, I'm trying to get the -- 5 Q. Do you agree that Friday was the 5th? 6 A. Yeah, yes I agree. 7 Q. Excellent. 8 A. Fine. 9 Q. So Saturday would be the 6th, wouldn't it? 10 A. Must be. 11 Q. Sunday would have been the 7th? 12 A. Yes, agreed. 13 Q. Good. 14 A. Presuming Monday was -- 15 Q. You were sending a request at 4.28 on a Friday 16 to Mr Jenkins, saying there's a court deadline 17 for you to respond to this by 4.00 pm on the 18 Monday, weren't you? 19 A. Well, that's what the court deadline -- I'm 20 stating a fact. I can only deal with what 21 I have -- and I'm certainly -- my habit is that 22 whatever matters in front of you, you deal with 23 it as much as you can, I mean, instead of going 24 backwards and forwards. You know the -- it's -- 25 a Friday, but, you know, whatever it is, I'm 100 1 highlighting what we need to do, but -- 2 Q. Again -- 3 A. -- whether is able to do it or not is another 4 thing and then, presumably, we'd have to go back 5 to the court and say, "Look, we couldn't do it, 6 we done all we can, please help". 7 Q. Again, this doesn't incorporate even the most 8 basic elements of an expert instruction, does 9 it? 10 A. I don't know what more do you want me to say. 11 Obviously, it doesn't -- 12 Q. An answer to the question. 13 A. No, it doesn't. 14 Q. Thank you. Can we move on, please, to 15 FUJ00122735. If we look at 4.57 on the Friday, 16 Mr Jones says, "Please see attached", and that's 17 Mr Jenkins' comments on the third interim 18 technical report: 19 "... and Gareth's comments on the need for 20 an examination of the underlying log files and 21 timing on this." 22 If we scroll down and see what Mr Jenkins 23 said. He said: 24 "David, 25 "I've provided in line comments to the 101 1 document as revisions. I'm happy for this to be 2 passed on to [Post Office Limited] if you feel 3 it's appropriate. 4 "The simple answer is that without 5 retrieving the logs, everyone is speculating and 6 as discussed this morning, nobody has bothered 7 to ask us for any logs. At this stage it is not 8 at all clear what transactions are thought to be 9 missing, at what time, or even in what time 10 period. Analysing logs over a long period [and 11 I think this over two or three months] is very, 12 very time consuming. This is not going to 13 happen by Monday." 14 Then he because for a copy of Mr Dunks' 15 witness statement. 16 So Mr Jenkins is pointing out to Fujitsu 17 and, in turn, you that, in order to respond to 18 Professor McLachlan's interim report, the Post 19 Office needed to obtain the underlying data, 20 yes? 21 A. Sorry, yes. 22 Q. Do you know why the underlying data had not been 23 obtained? 24 A. Well, I -- certainly it's been requested. As 25 I said, there is a process in the procedure 102 1 within the contractual commercial relationship 2 in the Post Office. I think some of the emails 3 I think we looked at yesterday, that's been 4 dealt with in the background which I'm not 5 copied into, and I think Mr Jones, in turn, is 6 dealing with somebody else within the Post 7 Office, with regards to that, and -- 8 Q. So this is 4.57 on a Friday with a court 9 deadline of 4.00 on a Monday, with the Fujitsu 10 employee saying "I can't answer these questions 11 without sight of the underlying transaction 12 data". 13 A. Yes. 14 Q. Yes? 15 A. Yes. 16 Q. Let's go back in history, please. POL00052202. 17 If we scroll down, please, thank you, an email 18 from Mr Longman to you, of six months earlier: 19 "At the hearing on 14 July, the defence 20 indicated they would be seeking the services of 21 a forensic accountant to analyse the Horizon 22 data as Ms Misra is now challenging the accuracy 23 of Horizon. I have tried to obtain the data for 24 the time Ms Misra was subpostmaster (3 years) 25 but as you can see from the email from Dave 103 1 Posnett there are number of issues. 2 "Please could you advise counsel of these 3 issues and inform me as to what action to take 4 ... " 5 We can look at the Dave Posnett email, if 6 you want, but ... 7 So this six months earlier, Mr Longman 8 raising with you obtaining access to the 9 underlying Horizon data? 10 A. Yes. 11 Q. Why hadn't it been sorted out in the six months 12 that had elapsed? 13 A. Well, it's gone off of my desk and landed on 14 somebody else who can deal with it. It's not 15 a lack of trying; it's the contractual 16 commercial relationship, and also the 17 authorisation and also as to obtaining of it. 18 I mean, it's not a -- it's not something -- this 19 is the -- this is something within my remit. 20 If I -- like I said, to you yesterday, if it 21 was up to me, then certainly I'm not concerned 22 with the -- you know, the cost of it, because 23 I'm as a prosecutor, and then a duty and 24 obligation to provide it and the simple answer 25 would have been to say "Look, you can't provide 104 1 it and, you know, offer no evidence". 2 That's probably where it's -- would come to, 3 and I think, as you can see David Posnett's 4 letter -- concern, he's in a position whereby 5 he's concerned with one expect. You've got 6 somebody else, the lawyers in the commercial and 7 contract team, dealing with something else, and 8 then you've got somebody else who's in 9 a position or role of requesting it. 10 So I'm not sure, you know, what are you 11 asking me to do. 12 Q. I'm asking you why you sent a request on at 4.30 13 on a Friday -- 14 A. To? 15 Q. -- to Mr Jenkins, essentially, asking him to 16 opine on Professor McLachlan's third expert 17 report, and he says, "I need the underlying 18 data". 19 A. Yeah. 20 Q. It was known for six months that the underlying 21 data was something that was necessary to obtain. 22 I'm asking, well, what had happened in the six 23 months? 24 A. I -- 25 Q. It had been passed around people's desks, is 105 1 that the answer? 2 A. No, the answer is it's going through -- the Post 3 Office -- you know, I can honestly say it works 4 very slowly. But it's not like a commercial 5 organisation where I've been concerned with in 6 private practice. It's completely different way 7 of dealing with it. I mean, certainly here, 8 it's -- there's processes, systems, contracts, 9 commercial relationships. As a prosecutor, as 10 a lawyer, you're basically in other people's 11 hands. 12 Q. Okay, anyway -- 13 A. So I'm -- 14 Q. -- let's go back to 5 February 2010, then, six 15 months on. FUJ00152930, email at 5.10 on the 16 Friday, David Jones to you: 17 "Jarnail 18 "This is an email that I received earlier 19 from Gareth. You will see that he is clear that 20 in order to answer counsel's questions about any 21 issues he needs to be able to check the 22 underlying transaction logs to be able to say 23 whether there were any issues. On the specific 24 issues you raise Gareth's view is ..." 25 Then number 3 -- you remember what number 3 106 1 is about, Mr Singh? 2 A. Yes, yes. 3 Q. Whether there were any known issues or problems 4 with the Horizon system of which Fujitsu is 5 aware. He says: 6 "He [Mr Jenkins] is not currently in 7 a position to make a clear statement. It is 8 possible for there to be problems where 9 transactions have been 'lost' in particular 10 circumstances due to locking issues. When this 11 happens then we have events in the underlying 12 eventing logs to indicate there was an issue. 13 Whenever we provide transaction logs to [the 14 Post Office Limited] we check for such events. 15 In the case of West Byfleet we have not been 16 asked to provide any transaction logs and so 17 have not made these checks." 18 A. Yes. 19 Q. Presumably you regarded that as a huge red flag? 20 A. Well, obviously, yeah -- as I said to you 21 earlier, I explained to you what the situation 22 was. There were problems in the background, 23 which I wasn't aware of. 24 Q. You're being made aware here -- 25 A. Yeah, by -- 107 1 Q. -- by Fujitsu. 2 A. -- David Jones, yes. 3 Q. That they cannot say -- they're not in 4 a position to provide a clear statement as to 5 whether there were problems with Horizon or not. 6 A. Yes. 7 Q. As a prosecutor, does it get any more 8 significant than that? 9 A. Well, no, but I mean, as I say -- 10 Q. What do you do? 11 A. I don't know. I mean, I -- I haven't got the 12 paperwork. I can only go by years on and with 13 what you've provided me with. I mean, 14 I don't -- I can't see what I -- this is, again, 15 5 February. There's been lots of information 16 going backwards and forwards trying to deal with 17 it, so I can't answer that, as to -- well, 18 obviously, you know, it's important, and I think 19 we have emphasised it, and then, I think, 20 subsequently finally we do get them, don't we, 21 in March? 22 Q. I mean, presumably, at the very least, this kind 23 of communication is something that you would 24 want to ensure goes on a disclosure schedule, 25 just at the very least? 108 1 A. Is it not on the final disclosures? Not on the 2 one on -- 3 Q. So far as we can see -- 4 A. 7 -- 5 Q. -- this information was not disclosed. 6 A. -- September '10? 7 Q. Correct. 8 A. That's the final one. That's not on there. Do 9 you know who actually signed that off? 10 Q. I can check over lunch. 11 A. Okay, please do. 12 Q. But -- thank you very much -- at the very least 13 you would want to ensure that this would go on 14 a disclosure schedule, wouldn't you? 15 A. Yes, essential. Yes, agreed. 16 Q. Did you say "essential"? 17 A. Of course -- you know, yes. 18 Q. The operators of the system are saying they 19 can't make a statement -- 20 A. Because -- 21 Q. -- a clear statement that there are no problems 22 with Horizon -- 23 A. Yes. 24 Q. -- or known issues with Horizon? 25 A. Obviously there's confusion, there's mistakes, 109 1 there's errors, all sorts of things on here but 2 it's a big organisation. How do you control it? 3 MR BEER: Sir, I wonder whether we could stop there, 4 please, and come back at 1.50. 5 We're finishing at 3.00 pm today, so I think 6 we can do one session after lunch from 1.50 7 until 3.00. 8 I've informed the Core Participants who had 9 submitted questions that the progress that I've 10 made isn't as swift as I'd intended, for one 11 reason or another and, therefore, I would 12 propose that I continue asking questions until 13 3.00 pm, that they defer any questions that they 14 wish to ask of Mr Singh until when he returns on 15 the next occasion next year. 16 Everyone, I think, has been agreeable to 17 that. 18 SIR WYN WILLIAMS: Any questions that you may still 19 have will also be dealt with next year; is that 20 right, Mr Beer? 21 MR BEER: Yes, exactly. I'm afraid it's taken me 22 longer than I'd hoped. 23 SIR WYN WILLIAMS: No, no, I follow. Could I just 24 have confirmation from all the Core Participants 25 that they're content with that? 110 1 MR BEER: Yes, there's lots of nodding. 2 SIR WYN WILLIAMS: Good. All right. 3 So we'll break off until 1.50 and then we'll 4 go until 3.00, or obviously a minute or two 5 beyond, if you want to complete some particular 6 line of questioning, and then we will resume in 7 the New Year. 8 MR BEER: Thank you very much, sir. 9 (12.50 pm) 10 (The Short Adjournment) 11 (1.50 pm) 12 MR BEER: Good afternoon, sir, can you see and hear 13 me? 14 SIR WYN WILLIAMS: Yes, thank you. 15 MR BEER: Thank you. 16 Good afternoon, Mr Singh. 17 Can we turn to an issue that you raised 18 before lunch, namely what was on the Schedule of 19 Non-Sensitive Unused Material on 8 September 20 2010 -- you called it the September 2010 21 schedule -- and who signed it, and just close 22 that issue off, if we may, by looking at 23 POL00055217. 24 Can you see this is a Schedule of 25 Non-Sensitive Unused Material in the case of 111 1 Seema Misra? 2 A. Yes. 3 Q. Would this be completed, ie the typing on it, in 4 column 1, 2 and 3, by the Disclosure Officer? 5 A. Yes. 6 Q. Would be comment column in column 4 be completed 7 by the reviewing lawyer -- 8 A. Should be, yes. 9 Q. -- in Legal Services? 10 A. Yes. 11 Q. If we look at this schedule, if we scroll down 12 to the foot, we can see it's dated 8 September 13 2010 -- 14 A. Yes. 15 Q. -- ie the one that you were referring to, and 16 you asked whether the email exchanges that I was 17 asking you about were on the Schedule of Unused 18 Material, and I said "No, they're not". 19 So if we just look at the schedule to start 20 with. If we scroll up, please. If you just 21 scroll through all of those items, we can 22 probably do this quite quickly. 23 Then scroll down. Then over the page. 24 Scroll down. 25 You can see that no emails are referred to. 112 1 A. No. 2 Q. So not just the ones I was speaking about at the 3 time but no emails concerning liaison with 4 Fujitsu or Gareth Jenkins over the commissioning 5 or contents or parameters of his witness 6 evidence are included, are they? 7 A. No. 8 Q. If we go back to page 1, please. Whilst we're 9 here -- we'll come back to it later -- but this 10 Schedule of Unused Material does not contain any 11 drafts of any of his witness statements, does 12 it? 13 A. No, it doesn't, no. 14 Q. Did you know, in 2010, that there was 15 an obligation under the law that had existed 16 under the Code of Practice promulgated under the 17 CPIA 1996 to disclose, as unused material, 18 drafts of witness statements, where they were 19 materially different from the served version? 20 A. I can't remember now, to be honest, but I would 21 assume -- I've been on the courses, I would have 22 been aware. But I can't -- I don't -- I can't 23 recall it. 24 Q. Assuming that you were aware of that -- 25 A. I should have been, yes. 113 1 Q. -- we're going to see, later this afternoon, 2 that there were a series of draft statements 3 that pass through your hands, which were very 4 materially different from initial drafts and, in 5 particular, they contain drafting suggestions 6 made by Warwick Tatford -- 7 A. Yes, Mr Tatford, yes. 8 Q. -- and none of those were disclosed. How did 9 that come about? 10 A. Who signed this? Have I? 11 Q. You can see at the foot of it, it is signed by 12 Mr Longman? 13 A. No, but the reviewing lawyer, is it me? Because 14 I know there was number of people dealing with 15 it. 16 Q. Let's start with how it was supposed to work. 17 A. Yeah, please. 18 Q. The Disclosure Officer was responsible for 19 collecting together the material -- 20 A. Yes. 21 Q. -- and deciding, in the first instance, whether 22 it required to be listed on this schedule or 23 a sensitive schedule or not at all, agreed? 24 A. Yes, agreed. 25 Q. They would submit the schedule to the reviewing 114 1 lawyer? 2 A. Yes. 3 Q. What function did the reviewing lawyer perform 4 in relation to the schedule of non-sensitive 5 material? 6 A. Well, he needed to -- well, certainly review 7 all, every single information he has or he 8 should have or, if he hasn't, to get the 9 Investigation Officer to get it over to him, or 10 put it in the schedule for him, or -- and then, 11 having reviewed it, finally conclude that it's 12 on here. 13 Q. Would the reviewing lawyer sign it? 14 A. If he's happy with it, he would only sign it if 15 he's happy it's all complete, yes. 16 Q. You'll see the way this form is designed, that 17 there isn't an obvious place for the reviewing 18 lawyer to sign. The signature that's underneath 19 "GRO" there is Mr Longman's signature? 20 A. Oh. Oh, is it? I don't know. I mean, 21 I presume there's a reviewing lawyer, who need 22 to -- I don't know whether I dealt with it, 23 whether I signed it next to where this reviewing 24 lawyer is. 25 Q. That's what was supposed to happen, was it -- 115 1 A. Yes. 2 Q. -- that it was signed next to the words 3 "Reviewing Lawyer" to show that the two-person 4 process of the Disclosure Officer, on the one 5 hand, and the independent of the Disclosure 6 Officer, the reviewing lawyer on the other, had 7 each applied their minds to the contents of the 8 schedule? 9 A. Yes. 10 Q. So would you get copies of these documents here, 11 1 to 11 -- 12 A. Yes, yes. 13 Q. -- when you got this schedule? 14 A. Absolutely, yes. 15 Q. Right. 16 A. It should be enclosed with it. 17 Q. So that's what the Disclosure Officer is 18 submitting to you, a schedule, plus a copy of 19 the documents that are mentioned in the 20 schedule? 21 A. Yes. 22 Q. Yes? What about material that's not mentioned 23 in the schedule? How did the reviewing lawyer 24 go about ascertaining what steps had been made 25 to collate material, to decide whether it should 116 1 go on the schedule? 2 A. Well, you were meant to review the whole case 3 and presumably make a list of what should be 4 there. The matters just mentioned about the, 5 you know, the drafting of the statement or the 6 amending of it and, as you go through it, 7 presumably you make a list and I think yesterday 8 you enclosed in one of the documents as to what 9 should be on it, plus -- depending on the kind 10 of case it is and, presumably here, we're 11 requesting a lot of information from Fujitsu, 12 and it's not forthcoming, and if those matters 13 that, you know, underline the prosecution case 14 and assist the defence, that's the test. 15 And the fairness of the trial, all that 16 needs to be requested, asked for, searched for 17 and then subsequently listed before you sign it 18 off or submit it to the defence. 19 Q. In this case, this wasn't one of those cases 20 where the investigatory work had been carried 21 out by, and only by, the Investigator and the 22 reviewing lawyer was not cited on any of it. 23 We've seen from the email exchanges that we've 24 looked at so far that you were included in 25 a series of emails, which made it clear that you 117 1 were in possession of relevant material? 2 A. Yes. It's on the file. It should be on the 3 file. 4 Q. So why was that material not listed on the 5 schedule? 6 A. I honestly can't say why but I don't know -- 7 when was the actual information sent, the 8 non-sensitive material in this schedule, when 9 was it sent to the defence? 10 Q. Sorry, when was the non-sensitive material -- 11 A. It must have been served on the defence, if it's 12 been -- 13 Q. I don't know. At some point, presumably after 14 8 September 2010. 15 A. Yeah, I know certainly this matter was dealt 16 with -- the other lawyers in the office, and 17 I think around about that September '10, I was 18 away for a long, long period. I wasn't even in 19 the country. That's the reason why. I can't 20 really -- 21 Q. So what did you do to tell the new lawyer, 22 "Look, I've been party to dozens of emails in 23 which the third party, Fujitsu, has been asked 24 a series of questions, some of which they've 25 answered, some of which they've declined to 118 1 answer or feel unable to answer, that material 2 needs to go on an unused schedule, here it is"? 3 A. The person who would have dealt with it would 4 have been my supervising officer -- 5 Q. Who was that? 6 A. Supervising officer. 7 Q. Who was that? 8 A. You know, the Head of Criminal Law Team. 9 Q. Who was that? 10 A. Rob, I think Robert, Rob -- 11 Q. So he took over the file whilst you were away, 12 did he? 13 A. I think he always kept in eye on it. 14 Q. No, no. You're talking about something 15 different here, Mr Singh? 16 A. Yes, he -- 17 Q. You're telling us -- 18 A. He took over for that period when I was away. 19 Q. When did he take over from? 20 A. I don't know. I think probably about end of 21 August, beginning of October. 22 Q. Sorry, he took over from the end of August until 23 the beginning of October? 24 A. Yeah, I think I was away for a long, long period 25 of about three or four months. I wasn't even in 119 1 the country. I had some things to sort out and 2 I got the leave to go. 3 Q. Presumably you said, "Look, Rob, we've got all 4 of this unused material here. I've got it, it's 5 on my file, it's in my email inbox and outbox. 6 Here it is, this needs to be listed on the 7 unused". 8 This is one of the cases I think we sat 9 together, reviewed it constantly over a period 10 of time. I think he was more of less up to date 11 because it was one of those cases where I felt 12 a lot comfortable with the fact that it's been 13 looked at, reviewed by the barrister who would 14 deal with the trial, if it came to the trial, 15 and subsequently my line manager. So if there 16 was anything I overlooked, he would pick it up, 17 and vice versa. 18 And that's one of the reasons why the 19 disclosure was dealt with in the way it did, in 20 the fact that I kept the counsel, the barrister 21 in the case, up to date with everything, and all 22 seeking advice as the matter progressed because 23 there's -- 24 Q. I'm asking you, Mr Singh, about what steps you 25 took, to ensure, in this period of absence that 120 1 you're telling us about -- 2 A. Well, I -- 3 Q. -- hold on -- 4 A. Sorry, okay. 5 Q. -- that the material you were in possession 6 often, that undermined the prosecution case, was 7 included on a disclosure schedule. What steps 8 did you take? 9 A. I think, firstly, the fact that I think he 10 was -- he was my line manager and top of it, 11 that he -- we were dealing with it, you know, 12 together. And then I think before I left, 13 I think we had the case for the -- we had the 14 date for the trial, and I think -- I don't know 15 whether we sat together or he made notes or 16 I actually dictated notes. I don't know now 17 exactly how this came about. 18 Q. Do you accept, Mr Singh, that it's a serious 19 dereliction of the prosecution's duties -- 20 A. Yes, of course. 21 Q. -- not to have included -- 22 A. Yes. 23 Q. -- on this schedule or any schedule of unused 24 material the email exchanges that we were 25 looking at earlier? 121 1 A. Yes, agreed. 2 Q. And a serious dereliction of the Prosecution's 3 duty not to include, on this schedule or any 4 schedule, the draft witness statements of 5 Mr Gareth Jenkins which were materially 6 different from the signed version? 7 A. Yeah, yeah. 8 Q. Your answer to that is essentially: "You need to 9 ask Mr Wilson about them"? 10 A. Yes. 11 Q. It's not down to you? 12 A. No, I accept that maybe I should have done more, 13 but, certainly, in that particular period -- 14 Q. What do you mean you should have done more? 15 A. More in the sense that I should have had 16 something -- more in the sense that I don't 17 know, made everybody aware of it, maybe I should 18 have listed it, I don't know but I think I sat 19 with him, almost constantly and also I think he 20 more or less, on and off, took over the case to 21 have a look. 22 I think he was reviewing it all the time, 23 I don't know whether he made notes of it but 24 it's such a long time ago, I can't recall 25 exactly what -- 122 1 Q. Thank you, that can come down. 2 Can we return to another issue that we 3 addressed before lunch, the extent to which you 4 treated Mr Jenkins as an expert. 5 A. Yes. 6 Q. Remember, I showed you some emails after the 7 event from, I think, 2012/2013, which referred 8 to you having instructed him as an expert. Can 9 I just look at some material that bears on that 10 issue from a different angle. 11 Can we start, please, by looking at 12 POL00045565. If we look at the second page, 13 please, it's a note from Warwick Tatford. If we 14 go back to the first page, it's an attendance 15 note for a mention on 7 May 2010. 16 A. Yes. 17 Q. Can you see that? 18 A. Yes. 19 Q. If we look at the third paragraph, please, if 20 that can be blown up, please: 21 "The Judge was prepared to break the fixture 22 because it had been fixed without the knowledge 23 of Keith Hadrill's dates to avoid [he was 24 defence counsel]. The Judge ordered that the 25 experts should compile a schedule of their 123 1 points of agreement and disagreement. No 2 further directions were made", et cetera. 3 You would have known by the time of receipt 4 of this document that the court was regarding 5 Mr Jenkins as an expert, agreed? 6 A. Well, that's what it says, yes. 7 Q. No, you would have known personally that, by the 8 time of receipt of this document, 7 May 2010, 9 the court was treating Mr Jenkins as an expert, 10 agreed? 11 A. That's noted by our counsel. I mean, presumably 12 he was at the hearing and he -- 13 Q. Yes, but he was giving you a note of what 14 happened at the hearing? 15 A. Yes, yes, he -- 16 Q. The judge is referring to the "experts", plural, 17 compiling a point of "their points", plural, of 18 agreement and disagreement. So you would know 19 that, by this time, the court was treating 20 Mr Jenkins as an expert, agreed? 21 A. Agreed, yeah. 22 Q. So when, in your witness statement -- do you 23 remember those two paragraphs that I showed you 24 first thing -- you said "I didn't regard 25 Mr Jenkins as an expert but the court did". You 124 1 would have been referring, there, to at least 2 this point onwards, wouldn't you: May 2010 3 onwards? You knew the court was treating 4 Mr Jenkins as an expert? 5 A. What can I say? I certainly -- that's what the 6 court -- 7 Q. Yes, so what did you do from May 2010 onwards to 8 ensure all of the things that I mentioned this 9 morning that a prosecutor must do in relation to 10 an expert were done? 11 A. I -- as I say, I obviously -- 12 Q. None of them? 13 A. -- in error. 14 Q. Is the answer none of them? 15 A. None of them, yeah. 16 Q. Why did you do none of those things? 17 A. I cannot tell you. Obviously, you know, it's my 18 fault. I take responsibility that I should have 19 done, which I didn't, for some reason or 20 another. I don't know. I can't explain it to 21 you now but, certainly, we would have been aware 22 of it because of the note, and certainly -- 23 certainly, at some stage, maybe even in the 24 conference or beforehand, we should have done 25 something about it in order to comply with it, 125 1 and we didn't. 2 Q. Can we move on to POL00054763. You'll see this 3 your own attendance note. 4 A. 18 May? 5 Q. Yes, so 11 days later. You say: 6 "The Defence had the case listed for mention 7 at Guildford Crown Court on 7 May as they were 8 unable to serve the full Defence Expert's Report 9 by the 28th as directed by the court. 10 "At the mention hearing at Guildford on 11 7 May, the matter was heard by the Resident 12 Judge [I think that's meant to be Critchlow] who 13 ordered the defence to serve a full and proper 14 Defence Expert's Report on the prosecution and 15 then the two experts to meet to agree a point of 16 agreement ... listed the trial for 11 October." 17 So this is in your own hand, a note for the 18 file, where you are recording Mr Jenkins as 19 being one of two experts, aren't you? 20 A. Yeah. Well, clearly. 21 Q. Again, at this time, what did you do to ensure 22 that all of the duties and obligations that you 23 owed as a prosecutor were complied with at this 24 time? 25 A. I -- in error or oversight, I didn't. I should 126 1 have done. 2 Q. Can we move on to POL00055118. Attendance note 3 in your hand, again, 28 July 2010: 4 "Telephone call received from Warwick 5 Tatford of Counsel in this case. After 6 discussion he confirmed that they are seeking 7 exactly what they were seeking before and to 8 respond to the Defence that if they wish to 9 disclose these items they need to make 10 a Section 8 application to Court and that also 11 our Expert, Mr Jenkins, has informed their 12 Expert that the material from Chesterfield that 13 is the Logs is not relevant information that 14 would assist them." 15 So here you've got your counsel referring to 16 Mr Jenkins as "our", ie the Post Office's, 17 expert, yes? 18 A. Well, yes, that's what it says, yes. 19 Q. What did you do at this time, July 2010, to 20 ensure that the duties and obligations that we 21 went through earlier were complied with? 22 A. I'm sorry, it's obviously been an oversight. 23 I mean, certainly, I was -- it's there in black 24 and white and should have been done and wasn't 25 done. 127 1 Q. Can we move to POL00001882, please, and scroll 2 down, thank you. This a joint statement of 3 areas of agreement and disagreement prepared by 4 Gareth Jenkins and Professor McLachlan; can you 5 see that? 6 (No audible answer) 7 If we go over the page, please, and go to 8 the last page, and just scroll down, thank you. 9 You can see it's dated 11 October 2010, so just 10 shortly before trial. 11 If we go back to page 2: 12 "This document comprises a schedule of 13 agreement", et cetera, et cetera. 14 A. Yes. 15 Q. So this is, would you agree, the kind of 16 schedule of agreement and disagreement that one 17 commonly sees in cases involving expert 18 witnesses? 19 A. Well, as I said, this is the first experience of 20 any of this nature, yes. Agree. 21 Q. When you saw this, did you think "Well, hold on 22 a moment, Mr Jenkins isn't an expert, he's a lay 23 witness of fact. What's he doing signing off 24 an expert schedule of agreement and 25 disagreement?" 128 1 A. I don't -- I can't recall what I was thinking at 2 the time, certainly all that was referred to the 3 counsel and also my line manager. I don't know, 4 nobody is -- it's down to me, I agree, I should 5 have picked it up and done something about it. 6 Q. Do you agree that that's a serious dereliction 7 of your duties as a prosecutor? 8 A. Yes, yes it is. 9 Q. Thank you very much, that can come down. 10 Picking up where we left off before lunch, 11 we were looking at the email that Mr Jones, the 12 Head of Legal at Fujitsu, had sent you on 13 5 February 2010. Perhaps if we just remind 14 ourselves of that, FUJ00152930. Do you remember 15 we were looking at this before lunch, and it's 16 this critical issue of what started as 17 paragraph 7 of Mr Tatford's advice about getting 18 out of Fujitsu known or recognised errors or 19 issues within the Horizon system; the watering 20 down, as I've called it, of that request; the 21 putting of that to Fujitsu and Mr Jenkins; and 22 the reply coming back, "He's not currently in 23 a position to make a clear statement". 24 A. Yes. 25 Q. Can we just look at the draft witness statement 129 1 that was attached to the emails, by looking at 2 FUJ00122723. If we look at page 2, please, can 3 you see that Mr Jenkins internally says, ie to 4 Mr Jones and Ms Thomas: 5 "Brief responses as follows, but not sure 6 that I should put them in a Witness Statement." 7 Then number 3: 8 "This is where I'm reluctant to make a clear 9 statement. I am aware of one problem where 10 transactions have been lost in particular 11 circumstances, due to locking issues", 12 et cetera, et cetera, which was cut into the 13 email that you yourself received. 14 Then if we scroll up, please, and a little 15 further. You can see that is indeed forwarded 16 on to you; can you see that? 17 A. Yes. 18 Q. What did you think when you read that Mr Jenkins 19 said he was reluctant to make a clear statement 20 over whether there were known issues or problems 21 with the Horizon system? 22 A. Sorry, say that again? Sorry. 23 Q. What did you think when you received 24 a communication which said that Mr Jenkins was 25 reluctant to make a clear statement over whether 130 1 there were any known problems with Horizon? 2 A. I don't -- I -- I don't -- I don't know. 3 I can't think now as to what -- what I was 4 thinking at that time or what we did about to 5 deal with it. 6 Q. What about what is said there: "It is possible 7 for there to be problems where transactions have 8 been lost in particular circumstances due to 9 locking issues"? What further information did 10 you seek from Mr Jones, or Fujitsu more 11 generally, as to what this problem was and what 12 the background to it was? 13 A. I honestly don't know. I mean, I don't know 14 what it was because I haven't got the whole 15 file. And, certainly, you know, I was working 16 with other people, I would have sought advice as 17 to what directions we take from there. 18 Certainly, you know, the barrister, working 19 alongside of me, together with the head of the 20 Criminal Law Team. 21 I mean, I -- as I say, this is the first 22 case of this nature, that's why I wouldn't have 23 done these -- taken that case on by myself, 24 I would have had other people working alongside 25 with me. And it was that period, I think in 131 1 that year, where I think I took time off, 2 certainly, and we had our Head of Criminal Law 3 Team working alongside me who was caretaking 4 while I was away. 5 Q. Did you take any steps to understand what the 6 issue was with Horizon, which could cause 7 transactions to be lost? 8 A. I don't recall. From what you -- this is the 9 only thing or whatever you've given in your -- 10 you know, the papers you've submitted to me, 11 apart from that, I can't really add any more. 12 Q. Given that your counsel, Warwick Tatford, had 13 originally advised the Post Office in relation 14 to its disclosure obligations to ask Fujitsu 15 whether it was aware of any other Horizon errors 16 that had been found at any sub post office, and 17 this information was conveyed in response, did 18 you take any steps to ensure that the Post 19 Office met its disclosure obligations in 20 relation to at least this information? 21 A. I don't recall. I mean, I don't -- I can't -- 22 I don't know, I haven't got the full information 23 in front of me as to what steps we took. 24 Q. We've seen on the disclosure schedule that there 25 is no mention of any document exchanged with 132 1 Fujitsu, nor any email exchanged with Fujitsu. 2 There's no disclosure on the unused schedule of 3 any communications with that third party 4 provider, is there? 5 A. Not on that schedule. Should be. Should have 6 been. 7 Q. So this is 5 February. Can we look, please, at 8 POL00054162, your email of 22 February to 9 Warwick Tatford and Jon Longman, and you say: 10 "Herewith my replies to the Defence's third 11 [schedule]. I would be grateful to Jon if he 12 could read through all the replies but in 13 particular ... detailed responses to [a list of 14 them]. 15 "... responses by end of business today so 16 [you] can forward on to the Defence Solicitors." 17 Then at (2) you proposed to say to 18 Issy Hogg: 19 "We are well aware of our statutory duty of 20 disclosure. As you know, the prosecution have 21 reviewed a large volume of material. The only 22 material disclosable is Callendar Place [I think 23 you meant Callendar Square]. As we know 24 Mr Jenkins is making full investigations so the 25 position can be ascertained." 133 1 The information that you received from 2 Mr Jenkins via Mr Jones and Fujitsu was not 3 disclosed by you in this proposed communication 4 to the defence solicitors, was it? 5 A. I don't recall. 6 Q. Well, it's not there, is it? 7 A. Can I just stop for five minutes and have a chat 8 with my solicitor on this, if it's possible, 9 sir? 10 SIR WYN WILLIAMS: Well, that's a rather unorthodox 11 request, in the sense that witnesses don't 12 normally have a chat with their solicitor -- 13 A. Well, advice, then, because -- 14 SIR WYN WILLIAMS: If it relates to the warning 15 I gave you at the beginning of your evidence 16 about self-incrimination, then I will permit it. 17 Does it relate to that? 18 A. Well, sir, to a degree, because this information 19 is very old and I -- you know, you're 20 12/13 years on. I have not seen the file. I've 21 been away from this type of case. Even the -- 22 my honest belief as to the previous questions 23 asked of me by your Inquiry counsel, as to 24 whether that -- as to whether Mr Jenkins was 25 expert or not expert, again, there's a lot of 134 1 information, isn't solely down to me because 2 it's sort of done by the whole team, because of 3 the nature of the case and because of this being 4 the first of Post Office cases where the matter 5 has gone -- 6 SIR WYN WILLIAMS: All right. Hang on, Mr Singh. 7 In the circumstances that are developing, 8 Mr Beer, can you think of any cogent reason why 9 I should refuse Mr Singh's request? 10 MR BEER: Sir, I think there needs to be 11 a limitation placed upon it because the -- 12 SIR WYN WILLIAMS: I think the limitation, in 13 reality, will be that I will limit it to five 14 minutes, Mr Beer. 15 MR BEER: Yes, because the -- I wasn't thinking in 16 terms of time; I was thinking in terms of 17 content. 18 SIR WYN WILLIAMS: I know. I was simply observing 19 that, if I limited it in time, the content is 20 likely to be limited as well. But maybe that's 21 too pragmatic. 22 Anyway, all right, is anyone else 23 representing a Core Participant? Does he or she 24 wish to provide a cogent reason why I shouldn't 25 accede to this request? 135 1 MR BEER: No, I'm getting shakes of heads from Post 2 Office, Howe+Co, Hudgells, Fujitsu and Gareth 3 Jenkins' representatives. 4 SIR WYN WILLIAMS: Right. 5 MR BEER: It is just HJA, I think, are thinking 6 about it. 7 SIR WYN WILLIAMS: Mr Singh, I'm going to afford you 8 five minutes, literally. I'm going to specify, 9 since it arose in relation to this document, 10 that the discussion must relate only to the 11 document which is now on the screen and, in 12 particular, the highlighted part at paragraph 2, 13 and anything which bears upon that in relation 14 to self-incrimination. All right? 15 So with those words, what's the time now, 16 Mr Beer? 17 MR BEER: It's just gone 2.25. Shall we say 2.35, 18 sir? 19 SIR WYN WILLIAMS: Yes, 2.35 we will return, all 20 right. So you need to get your skates on, 21 Mr Singh. All right. 22 THE WITNESS: No problem. 23 SIR WYN WILLIAMS: Thank you. 24 (2.26 pm) 25 (A short break) 136 1 (2.35 pm) 2 MR BEER: Sir, can you see and hear us? 3 SIR WYN WILLIAMS: Yes, I can, thank you. 4 MR BEER: Mr Singh, is there anything you wanted to 5 convey to the Chairman, having had -- 6 A. No, sir, thank you, sir. Thank you for the 7 time. It was just to clarify my head. I think 8 I needed the time. 9 That's fine, that's okay. Can you ask the 10 question again, and I can -- 11 Q. Thank you. This draft communication to the 12 defence solicitor, Issy Hogg, was to tell her 13 that you, the prosecution were: 14 "... well aware of our statutory duty of 15 disclosure. As you know, the prosecution has 16 reviewed a large volume of material. The only 17 material disclosable is Callendar Place ..." 18 My question was: why did you not reveal the 19 information that Mr Jenkins had provided you 20 through Fujitsu about a known problem which 21 caused transactions to disappear or to be lost? 22 A. This to Mr Warwick Tatford and Longman, isn't 23 it? 24 Q. Yes, it's a draft email. 25 A. Draft email. I'm working alongside the counsel 137 1 but I don't recall or remember this. I can't 2 answer. I don't know the -- I don't recall. 3 Q. Do you agree that the information that you had 4 received should have been revealed to the 5 defence? I think you've agreed that already, in 6 fact, before the break. But do you agree that 7 it should have been revealed in this response to 8 the defence? 9 A. Again, it's such a long time ago. I am trying 10 to -- a lot of it is basically since I've left 11 doing this sort of work, it's just -- it's 12 unmanageable, the amount of material that I had. 13 Certainly, I do not remember, I do not recall. 14 I can't really assist the Inquiry any more than 15 that because it's not something that I would 16 have retained to give you an answer for. So 17 I don't remember, I don't recall. 18 Q. Can we look, please, at POL00054185. 19 Can we see the email that, in fact, went out 20 from you to Issy Hogg, and can you see numbered 21 paragraph 2 of it is in exactly the same terms? 22 A. Yes. 23 Q. You'd been told by this stage that there was 24 a known problem with Horizon causing 25 transactions to be lost. Why not tell the 138 1 defence? 2 A. I don't know. I don't -- I don't recall as to 3 where we are at that particular moment in time. 4 I think it's 24 February '10, so I don't recall. 5 I can't assist any more than that. 6 Q. Let's move on. FUJ00122808. Mr Jenkins on 7 8 February is emailing you directly, copying in 8 Penny Thomas and David Jones, and he says: 9 "Attached is a new witness statement saying 10 what I don't know about Falkirk [that's 11 Callendar Square] and also comments on the third 12 report." 13 Can we look, please, at the draft statement 14 POL00001569. Can you see Mr Jenkins' draft 15 statement here, attached to that email to you? 16 A. Yes. 17 Q. He says, if we just scroll down a little bit: 18 "I have been asked if issues found at 19 Callendar Square Post Office in Falkirk could 20 have caused the discrepancies in Seema Misra's 21 case. At this stage, I am not aware of the 22 details of the problems in Callendar Square Post 23 Office in Falkirk. However I expect to be able 24 to find out the details of that case and also to 25 compare the failing scenarios with the detailed 139 1 logs that are to be extracted for the Seema 2 Misra case and should then be able to make it 3 clear if the scenario is relevant." 4 So the witness from Fujitsu is saying, 5 "I don't actually know about the one problem 6 with Horizon that has been disclosed to the 7 defence", isn't he, "but I'm going to try and 8 find out"? 9 A. I don't -- the -- I think -- I can't really 10 recall. I cannot really say. It's just too 11 minute details in this moment in time. I don't 12 know what I was thinking at that particular 13 moment. I don't recall most of what you asked 14 me this afternoon, purely because I have been 15 given a lot of information, and I'm not at 16 a time and place and age to be able to digest 17 all that and say to you one way or the other. 18 I mean -- so I don't know, I don't recall 19 and I don't remember. So that's all I can 20 assist you with. I don't remember any of that 21 as to how we dealt with it or why we dealt with 22 it. It's just I don't recall, and I think, at 23 the end of today, what I've done is I've had 24 a second set of eyes looking at it all the time, 25 or even third set of eyes. You've got the Head 140 1 of Criminal Law Team and you've got the 2 barrister looking at it, purely because it's 3 something we have never experienced before and 4 it's the first time, I think, the Post Office 5 have gone through this sort of process and 6 system. So that is one of the reasons why I'm 7 copying everything to the counsel, who is well 8 experienced and knowledgeable, together with the 9 Head of Criminal Law Team who had, I think been 10 in practice since 1980. So I am -- 11 Q. You sent this to the Head of Criminal Law, did 12 you? 13 A. He was part and parcel of the -- working 14 alongside me. I mean, it's not something that 15 I'd done alone. 16 Q. Have you decided, since the break, to come back 17 and say, "I don't recall, I don't remember". 18 A. No, absolutely not. I mean it's something, you 19 know, 10, 12 years ago, I've not been in 20 practice. I've been doing other things. I've, 21 you know -- you work hard early on to be able to 22 enjoy life at certain stage, and I have been. 23 And I -- it's not not wanting to assist the 24 Inquiry; I think that's never been my intention, 25 and I have been very clear. 141 1 I think maybe on the first day I was 2 a little bit nervous because -- I was nervous in 3 the sense that I've been out of practice but 4 I think slowly, slowly, I've been able to slow 5 down, understand what you are asking, and 6 I've -- in those circumstances, I'm trying to 7 assist. I do not recall this, and I would not 8 recall to it this much detail at this stage in 9 my life and in my career. Because I'm not 10 a prosecutor, any more, and I have not been for 11 the last, you know, 12 years or so. 12 And I can rest assure this has been done 13 with a barrister on one side and the Head of 14 Criminal Law on the other, plus a principal 15 lawyer, and I think -- 16 Q. Who was the principal lawyer who was also -- 17 A. Juliet McFarlane. 18 Q. She was being copied in on all these emails too, 19 was she? 20 A. She had the files on and off. 21 Q. What do you mean she had the files? 22 A. Well, the files was, well, basically shared in 23 that respect. 24 Q. How were they shared? 25 A. Well, the shared -- I think there's an email 142 1 subsequently, we will see, that she dealt with 2 various aspect of it because the fact that she 3 was senior, she would take up various matters 4 alongside it, which I was agreed -- 5 Q. We'll maybe get to that email that you do 6 remember a little later. 7 A. Yeah, sorry. But you can rest assured it was 8 not a sole -- it was a team effort in effect 9 because I wasn't comfortable dealing with it 10 alone because, you know, it's like requesting 11 information, time to understand it. That's one 12 of the reasons why the barrister, I think you 13 will -- he's always been copied in, purely 14 because you had to have his advice -- 15 Q. I haven't challenged you on that at all. 16 I haven't challenged you that many of these 17 things were run past Warwick Tatford. What 18 you've just told us, that this was a team 19 effort, by that do you mean: decisions not to 20 disclose what Gareth Jenkins had informed you, 21 there was a collective decision not to disclose 22 it? 23 A. No, not at all. What I mean is that -- it's not 24 a collective decision not to disclose it. For 25 some reason or other, I do not recall what we 143 1 did or what we didn't do, but that is the 2 position. I can't, 12 years on, assist you, 3 purely because I don't recall. I don't 4 remember. 5 Q. Can we move on, please, to POL00054056, the same 6 day now at 3.09. You send Mr Jenkins' witness 7 statement of 2 February and his witness 8 statement of 8 February to Warwick Tatford and 9 the Investigator, Jon Longman. Can you see? 10 A. Yes. 11 Q. You say that you've served them on the defence, 12 yes? 13 A. Yes. 14 Q. So, at this point in time, 3.00-ish on 15 8 February, would you agree that the only 16 instructions that the Post Office had given to 17 Mr Jenkins were those that were set out in the 18 email from Jon Longman that we saw earlier, 19 "Please comment on the witness statement or the 20 expert report of Professor McLachlan, versions 2 21 and 3", and asking him to address his written 22 points 1 to 4. That's the only form of 23 instruction that Mr Jenkins got, agreed? 24 A. I don't -- I don't recall. I mean, I don't 25 know. I mean, I -- unless I revisit the whole 144 1 paperwork from the beginning to the end, and we 2 put the clock back, you know, to the year 2010, 3 I can't really assist you one way or the other 4 what we did or didn't do. 5 Q. On the documents we've seen, the only form of 6 instructions that Mr Jenkins got were requests 7 to comment on Professor McLachlan's reports 2 8 and 3 and to address the four issues mentioned 9 in the Jon Longman email? 10 A. Well, that's what we're trying to correlate is 11 to get the two gentlemens together to work out 12 where we go from here. I mean, certainly, 13 there's no intention on any of it, that's the 14 practical approach to it, and, as far as to 15 where we are, at that particular moment in time 16 now, I can't -- I don't -- I don't recall it and 17 I don't remember anything. So I don't recall on 18 that. I can't assist you any further. 19 Q. Would you at least agree that neither of the 20 witness statements that Mr Jenkins had provided 21 at this time in draft incorporated the necessary 22 elements of an expert report? 23 A. I -- which -- well, as I said to you, my -- it's 24 obviously been overlooked. You showed me the, 25 you know, the court's decision and my own 145 1 attendance note, but I -- at that time maybe 2 it's overlooked, it's pressure of work, or 3 whatever it is. I'm sorry it wasn't done, but 4 I -- 5 Q. As a matter of fact, it wasn't done though? 6 A. Yeah. 7 Q. So, by this time, you're serving two witness 8 statements in ordinary form on the defence and, 9 by that time, neither of those witness 10 statements incorporated the necessary elements 11 of an expert report, the things that we 12 discussed this morning? 13 A. Well, I think he was -- well, I -- it was 14 8 February '10, he wasn't considered to be -- 15 he'd just walked in to get everybody to 16 understand the system itself because he's 17 a specialist. It's a special system and he's 18 the specialist able to assist the prosecution, 19 the defence and the court. 20 So I can't say more than that. I mean, 21 presumably, now you've pointed it out, there 22 would have been -- I mean I -- again, you know, 23 it's -- in time, I didn't know -- you know, 24 well, maybe it was overlooked by everybody 25 concerned, as there was a number of people 146 1 involved in it, that we should have done what 2 was required of us. 3 So it's not anything more than that but he 4 was brought in purely because he was 5 a specialist looking at special system which he 6 was the best person to assist the court, the 7 prosecution and the defence. 8 Q. That can come down. Thank you. 9 Can we move on to the 9 February, 10 POL00054085. If we scroll down, please -- 11 sorry, over the page. Sorry, scroll up a little 12 bit, please. I think that must be an errant 13 reference. I'll move on. 14 FUJ00152979, please, 22 February. You're 15 writing directly to Mr, Jenkins, saying: 16 "Thank you for providing the two witness 17 statements in the case. I have given your 18 details to the defence expert Alistair McLachlan 19 to contact you with a view to discussing the 20 issues in the case ..." 21 Just stopping there, the document that I was 22 trying to show you was you sending Fujitsu 23 Mr Jenkins' contact details, and you're 24 confirming here that you've done so. You 25 continue: 147 1 "... with a view to discussing the case 2 further and analysing the data as discussed. 3 I'd be grateful if you can confirm whether he 4 has been in touch with you and you have arranged 5 a mutually convenient time for a meeting. Got 6 to be sun as soon as possible in view of the 7 trial date of 15 March at Guildford Crown 8 Court." 9 Do you agree that you provided no 10 instructions to Mr Jenkins as to how he should 11 approach this discussion with Professor 12 McLachlan? 13 A. Well, it was a mutual meeting into Mr -- the 14 defence expert been -- I don't know, averse with 15 the system -- with a view to discussing the 16 system, more than that. Our guy's the expert in 17 the system, in the sense that his expertise are 18 specialist in the system, and he's more or less 19 bringing the defence expert up to date as to 20 trying to get him to understand the system 21 itself. 22 I think it's no more than that. I don't 23 know what instructions I gave. I don't remember 24 or I don't recall exactly now, in detail, what 25 this meeting is and what I am asking him to do 148 1 or what -- 2 Q. You don't tell him what you're asking him to do, 3 do you? 4 A. I don't remember what -- I think this meeting 5 came about purely because these gentlemen, 6 I think, either met together or they wanted to 7 get together, to really set out what they're 8 going to discuss. I mean, I don't know, prepare 9 some sort of agenda, but certainly I do not 10 recall what my involvement in this was, 11 involvement in -- 12 Q. Well, it was you sending an email to Mr Jenkins 13 saying, "Have you had a meeting"? 14 A. I don't recall exactly where we are with it 15 because, to be honest, the amount of minute 16 detail you're going at, at this moment in time, 17 I can't assist you because I don't -- the time 18 is -- you know, so much time has passed from 19 there to know, that I don't really be able to 20 assist you more than I can -- 21 Q. Do you agree Mr Singh that you failed to tell 22 Mr Jenkins: (a) how he should approach the 23 discussion with Professor McLachlan; (b) in what 24 capacity he was instructed to conduct the 25 discussion with Professor McLachlan; (c) what 149 1 issues the discussion should cover; and (d) 2 importantly, what records should be made of the 3 discussion? 4 A. I don't recall any of -- any of that, but I -- 5 Q. Why didn't you do any of those things? 6 A. I don't recall. I don't know what these 7 circumstances, the way their meeting was set up, 8 was it a preliminary one just to see -- just to 9 get him to understand the whole system or not. 10 I mean it wasn't -- 11 Q. Well, even if it was a preliminary one, to get 12 him to explain the whole system, he would say, 13 "This is just a preliminary meeting to explain 14 the whole system, don't go beyond that for the 15 moment, Mr Jenkins, but please ensure that 16 a record is made of what you say to the defence 17 expert, because that will be disclosable in due 18 course". 19 A. I -- 20 Q. You must have known that least, Mr Singh? 21 A. I don't recall. I mean, I don't recall as to 22 how these circumstances came about and 23 I think -- 24 Q. The circumstances came about that you sent 25 Mr Jenkins' contact details to the defence and 150 1 then you sent Mr Jenkins an email saying, "Have 2 you had a meeting yet?" They are the only 3 circumstances. 4 A. Well, I think it's in agreement with the defence 5 that they wanted this meeting, purely because in 6 order to assist them to defend their client. 7 I can't -- I don't know any more than what I'm 8 telling you. I don't recall what happened, what 9 didn't happen. 10 Q. Can we turn, please, to POL00093946. This is 11 an application, dated 24 February, if we go to 12 the last page, please. 24 February 2010 settled 13 by Keith Hadrill of Furnival Chambers. If we go 14 back to page 1, please. It's an application to 15 stay the indictment against Mrs Misra on Count 1 16 of the indictment, on the grounds of abuse of 17 process. 18 A. Yes. 19 Q. If we just scroll through it so you get some 20 context. Look at paragraph 2, which tells us 21 the background. 22 A. Yes, yes. 23 Q. Paragraph 3, which tells us what the case is. 24 A. Yes. 25 Q. If we move on to paragraph 4, please. Then 4, 5 151 1 and 6 tell us about the back history. Just 2 stopping there, Mr Hadrill says: 3 "The case was called on for trial in May 4 2009, stood out because of concerns over the 5 reliability of the Horizon computer system. 6 Time was given for this area of evidence to be 7 explored. New solicitors were instructed by the 8 defence." 9 Then at 5: 10 "Case was re-listed for a pre-trial review 11 and directions on 14 July 2009 and directions 12 were given which included the service of 13 experts' reports." 14 That's where I got the reference, before 15 lunch, to the autumn of 2009, a direction having 16 been given for the service of experts' reports; 17 do you see that? 18 A. Yes. 19 Q. Did you know had a direction had been given for 20 the service of experts' reports -- 21 A. Well -- 22 Q. -- as early as 2009? 23 A. I don't recall. I mean, I don't -- I mean -- 24 I don't recall now in that much detail, you're 25 asking me to remember going back -- 152 1 Q. Okay, paragraph 6: 2 "The prosecution, by letter dated 14/8/2009 3 said it would instruct Fujitsu, the supplier and 4 operator of the Horizon computer, to assist as 5 experts. In that letter the prosecution stated 6 the request for data had been submitted to 7 Fujitsu and acknowledged. This is ..." 8 I think we've missed a bit out at the bottom 9 of the last page but one, "and acknowledged" -- 10 oh, sorry: 11 "The prosecution had stated that the request 12 for data had been submitted to Fujitsu and 13 acknowledged." 14 Then to paragraph 7, please. 15 "This is in total contradiction to the 16 statement received from Gareth Jenkins of 17 Fujitsu who states that no requests had been 18 made for any data relating to the West Byfleet 19 branch." 20 That was the issue we were looking at 21 earlier, the defence requesting disclosure of 22 the underlying transaction data as early as 2009 23 and, by February 2010, it still hadn't been 24 obtained. 7, we can skip over; 8 we can skip 25 over: 153 1 "9. A view of the Post Office machinery and 2 method of working at West Byfleet was undertaken 3 by counsel and solicitors on 6 November. 4 Professor McLachlan permitted to view the same 5 on 17 November '09. 6 "10. At the hearing on 20/11/09 the 7 prosecution requested the defence help by 8 producing more detailed requests for disclosure. 9 That was done and served on 30/11/09. Despite 10 this, no responses were forthcoming until after 11 the defence listed the matter for mention." 12 Then over the page: 13 "At the hearing on 1/2/10 the defence were 14 ordered to notify the prosecution of those 15 matters which it regarded as still outstanding 16 ... 17 "The prosecution had failed until 1/2/10 to 18 instruct an expert. At the court hearing on 19 1/2/10 the prosecution stated it had identified 20 their expert, Gareth Jenkins from Fujitsu, but 21 not instructed him yet. The court confirmed 22 that the prosecution expert should report by 23 8/2/10. 24 "A short statement was served from 25 Mr Jenkins. In that report Mr Jenkins generally 154 1 could not assist because: 2 "He'd not been given sufficient material and 3 documentation. 4 "He'd only just been instructed to assist 5 and would need time. 6 "Some of the questions raised by Professor 7 McLachlan he didn't understand. 8 "Some of the information requested from 9 Fujitsu should come from the Post Office." 10 Then the defence say this: 11 "It is apparent that the prosecution has 12 given no clear instructions to its own expert, 13 or provided him with an adequate material to 14 assist the court." 15 You would agree, on reflection, that that's 16 true, wouldn't you? 17 A. I don't know. I don't quite -- the dates -- 18 I didn't realise that Mr Jenkins had been 19 identified that early. I don't recall any of 20 that. 21 Q. Had you given clear instructions to Mr Jenkins? 22 A. I think the -- I don't know. I don't recall. 23 Q. Had you provided him with adequate material to 24 assist the court? 25 A. I don't recall. I mean, I think, as I have been 155 1 saying, is that these was there basically to 2 help or assist the prosecution and the defence 3 to understand the system, because I'm not 4 a technical person. I don't know the basics, 5 let alone the actual technology involved here. 6 And that's one of the reasons why I was very 7 uncomfortable dealing with it myself. 8 That's why I had the barrister alongside 9 with me on one side and the head of the Criminal 10 Law Team on the other. That's my case -- 11 Q. Thank you, Mr Singh. I'm sorry, I interrupted 12 you -- 13 A. Sorry, that's one of the reasons: because it's 14 complicated. It's very, very difficult to be 15 able to do it. So I don't recall it in that 16 much detail. I don't recognise the dates. 17 I don't recall the dates. I thought it was 18 everything more or less started around about 19 February time but, as to when Gareth Jenkins was 20 identified, I don't recall now that it was that 21 early, my conversation with, you know, Mr Jones. 22 Now that you mentioned it -- and I think the 23 other difficulty is that, because of the time 24 period, a lot of the information you're coming 25 up with, you're obviously -- you know, this is 156 1 the sort of area of law you deal with, you know, 2 the Inquiry. This is the first experience of 3 it. I do not recall most of the stuff that is 4 coming up at all, and I -- certainly not the 5 dates, I don't recall. I think more or less 6 everything was happening really, really quickly 7 in February. I didn't realise that, going back 8 in time six months -- I don't recall most of 9 what's here, and I think was of it, because it's 10 a specialist area of the law and everything 11 else, that involved, I had the barrister more or 12 less looking at it in minute detail. 13 I mean I was relying on the barrister, more 14 or less, and I think we were working alongside, 15 he was saying, "Well, I" -- more or less, as you 16 know, I can say generally that that's how we 17 worked on it, but I don't recall most of what's 18 here, the dates. 19 MR BEER: All right, thank you. That can come down. 20 Sir, that's an appropriate moment to break. 21 SIR WYN WILLIAMS: Right. 22 MR BEER: We would be continuing with 23 a chronological progression through the 24 instruction of Mr Jenkins and the compilation of 25 his witness statements; the revelation of 157 1 material to the defence; the discovery of a bug; 2 and whether that material was revealed or 3 concealed from the court and the defence. 4 Sir, I've got another 37 pages of notes to 5 get through. 6 SIR WYN WILLIAMS: Right. I think we -- yes, sorry. 7 I think we'll break there and, obviously, in 8 scheduling Mr Singh hereafter, we will need to 9 take account of the time estimate for what 10 remains, as well as what is to come. 11 MR BEER: Yes, sir. I think it will be appropriate 12 to release Mr Singh from the obligation that he 13 would otherwise be under not to speak about the 14 evidence he's to give -- 15 SIR WYN WILLIAMS: Yes. 16 MR BEER: -- when he returns, because we're going to 17 be asking him for a further witness statement on 18 Phase 5 and 6 issues and he'll plainly need to 19 speak to his solicitor about those. 20 SIR WYN WILLIAMS: Well, that's the practice which 21 I've adopted in relation to those witnesses who 22 have given evidence but who are returning, is it 23 not? 24 MR BEER: It is, sir. 25 SIR WYN WILLIAMS: Yes. 158 1 So, Mr Singh, we're going to stop this 2 afternoon now. As you will have gathered, it 3 will be necessary for you to return to give 4 further evidence. I can't -- I'm sorry -- tell 5 you precisely when that will be but the 6 scheduling of your evidence will be done in 7 liaison with you and your solicitors. You are 8 now entitled to speak to your solicitors about 9 your evidence and any further requests for 10 evidence. So I will see you again sometime in 11 the New Year. 12 THE WITNESS: Thank you, sir. 13 SIR WYN WILLIAMS: Right. On Tuesday, I'm right in 14 remembering that we are starting at 11.00; is 15 that right, Mr Beer? 16 MR BEER: Yes, that's right. 11.00 am, Tuesday, 17 please. 18 SIR WYN WILLIAMS: Fine. All right, then. 19 MR BEER: Thank you. 20 (3.06 pm) 21 (The hearing adjourned until 11.00 am 22 on Tuesday, 5 December 2023) 23 24 25 159 I N D E X JARNAIL SINGH (continued) .....................1 Questioned by MR BEER (continued) .............1 160