1 Monday, 18 December 2023 2 (10.45 am) 3 MR BEER: Good morning, sir, can you see and hear 4 us? 5 SIR WYN WILLIAMS: Yes, I can, thank you and can 6 I apologise for keeping everybody waiting. 7 MR BEER: Thank you, sir. 8 May I call Duncan Atkinson KC, please. 9 SIR WYN WILLIAMS: Yes. 10 RICHARD DUNCAN ATKINSON KC (sworn) 11 Questioned by MR BEER 12 MR BEER: Good morning, again, Mr Atkinson. As you 13 know, my name is Jason Beer and I ask questions 14 on behalf of the Inquiry. Can you remind us of 15 your full name, please? 16 A. Yes, Richard Duncan Atkinson. 17 Q. Thank you for coming to give evidence to the 18 Inquiry on a second occasion. Since you last 19 gave evidence on 5 and 6 October this year, 20 you've provided two reports to the Inquiry 21 described as your Volumes 2 and 2A. 22 A. Yes. 23 Q. Can I start with Volume 2, please, that's 24 EXPG000004R. This is a 243-page report, 25 excluding its appendices, revised recently to 1 1 take into account a small number of additional 2 documents provided to you by the Inquiry. Are 3 the contents of that report true to the best of 4 your knowledge and belief? 5 A. Yes. 6 Q. Have you included in that report -- it needn't 7 come up now, it's appendix A2 at page 243, 8 an expert witness's declaration? 9 A. Yes. 10 Q. Does that set out your understanding of your 11 duties in writing the report and in giving 12 evidence? 13 A. Yes. 14 Q. Does it set out whether you have any conflict of 15 interest of any kind? 16 A. Yes. 17 Q. Does it set out your understanding of your 18 instructions? 19 A. Yes. 20 Q. Does it set out whether the matters about which 21 you've expressed opinions are within your field 22 of expertise? 23 A. Yes. 24 Q. That report, I think, addresses 20 case studies; 25 is that right? 2 1 A. That's right. 2 Q. Then, secondly, Volume 2A, EXPG0000005. That's 3 a 28-page report, again excluding the 4 appendices, addressing two case studies, that of 5 Janet Skinner and Julian Wilson. Does the same 6 expert witness declaration apply to that report? 7 A. Yes, it does. 8 Q. Are the contents of that report true to the best 9 of your knowledge and belief? 10 A. Yes, they are. 11 Q. Thank you very much. 12 In terms of your background and experience, 13 has that changed in any material respect since 14 we last saw you at the beginning of October? 15 A. No. 16 Q. By way of recap, in Volumes 1 and 1A of your 17 earlier reports, and in your evidence on 5 and 18 6 October 2023, you considered, is this right, 19 the legal and policy framework for the 20 investigation and prosecution by the Post Office 21 of criminal offences and, more broadly, the 22 framework relating to the responsibilities of 23 prosecuting authorities, investigating 24 authorities, in making in particular charging 25 decisions and disclosure? 3 1 A. Yes. 2 Q. The task you've undertaken for us now, leading 3 to your Volumes 2 and 2A reports, concerns the 4 extent to which, is this right, the legal and 5 policy framework that you previously described 6 was or was not complied with in the cases of the 7 22 case studies that we're looking at? 8 A. Yes, in so far as that was possible to identify 9 that from the material that I had. 10 Q. I'm going to come on in a moment to the 11 limitations of the material that you have been 12 provided with. Is this right, that, in terms of 13 a sort menu of issues, you focused on, firstly, 14 investigations. Was that principally on the 15 duties of an Investigator to pursue reasonable 16 lines of inquiry? 17 A. Yes. 18 Q. Secondly, in relation to the Horizon system 19 specifically, the application of that duty where 20 a suspect either does not assert a problem with 21 Horizon, either in their interview, in a defence 22 statement or otherwise, and in those cases where 23 a suspect does indicate an issue or a question 24 over the integrity of Horizon data? 25 A. Yes. 4 1 Q. Secondly, did you look at prosecutions and was 2 that split into charging decisions -- 3 A. Yes. 4 Q. -- and, in particular, the test that 5 a prosecutor seemingly applied when making 6 a charging decision? 7 A. Yes. 8 Q. The evidence that the prosecutor seemingly 9 considered when making such a charging decision? 10 A. Yes. 11 Q. The extent to which such charging decisions 12 appeared to be thorough and diligent agent -- 13 A. Yes. 14 Q. -- or conscientious. 15 Then lastly, the approach taken to charging 16 theft and false accounting, in particular as 17 alternatives? 18 A. Yes. 19 Q. Did you look at, under the heading of 20 prosecution, issues concerning the commencement 21 of proceedings? 22 A. Yes, although in terms of summonses and what lay 23 behind the summons, I don't think I saw anything 24 that helped me on that topic. 25 Q. No, that material was particularly lacking -- 5 1 A. Yes. 2 Q. -- how proceedings were commenced and what 3 material was lodged with the Magistrates 4 Court -- 5 A. Absolutely. 6 Q. -- in order to commence process. 7 A. Yes. 8 Q. Did you look at the approach taken to 9 disclosure -- 10 A. Yes. 11 Q. -- and, in particular, whether there was 12 an identified Disclosure Officer and whether 13 that was also the Investigating Officer? 14 A. Yes. 15 Q. The extent to which prosecutors reviewed the 16 disclosure given, whether in the unused schedule 17 of material or otherwise? 18 A. Well, the extent to which I could see that they 19 had reviewed it. 20 Q. And the extent of any duties of cross-disclosure 21 between prosecutions? 22 A. Yes. 23 Q. Did you look at, lastly, prosecutorial practice 24 and, in particular, the practice of plea 25 bargaining? 6 1 A. Yes. 2 Q. Did you look, lastly, at the reliance by the 3 Post Office on expert evidence? 4 A. Yes. 5 Q. You tell us in paragraph 6 of your report, in 6 terms of the material available, that it varied 7 considerably as between cases; is that right? 8 A. Yes. 9 Q. In some cases, it was extensive; is that right? 10 A. Yes. 11 Q. In others, the material was very sparse 12 indeed -- 13 A. Very much so. 14 Q. -- with no material relating to some of the 15 topics that I've just described? 16 A. That's right. 17 Q. Where that is the case I think you tell us so in 18 your expert reports? 19 A. Yes, I hope so. 20 Q. I think you've been provided with a document 21 entitled "Gareth Jenkins Chronology", prepared 22 by the solicitors acting on behalf of the Post 23 Office? 24 A. Yes. 25 Q. You have been instructed, is this right, that 7 1 the "Gareth Jenkins Chronology" is not being 2 treated by the Inquiry as evidence -- 3 A. That's right. 4 Q. -- or as a source of evidence, and you have not 5 done so either; is that right? 6 A. I took notes where it referred to 7 a communication to the existence of that 8 communication, particularly if I hadn't seen it 9 before. In the wealth of material that I've 10 received in the last week, I have now seen a lot 11 of the communications that were referred to but 12 that was the extent to which I took note of that 13 document. 14 Q. Thank you. In particular, in your report, you 15 were careful to state, is this right, when the 16 underlying material should be consulted -- 17 A. Yes. 18 Q. -- in order to see whether what is suggested in 19 the chronology is accurate or inaccurate? 20 A. Yes, and I did not proceed on the basis that it 21 was a complete record of all communication or 22 assume anything of that sort. 23 Q. Thank you very much. Are you able to confirm, 24 in terms of your methodology and approach, that 25 you've not been asked to look at either the 8 1 witness statements or the oral evidence of any 2 of the witnesses who have given evidence in 3 Phase 4 of the Inquiry? 4 A. No, that's right. 5 Q. Instead, you have been asked to, and you have 6 yourself, confined yourself to looking at the 7 documents, the contemporaneous documents with 8 which you have been provided? 9 A. Yes. 10 Q. Is it right that the majority of those documents 11 relate to the investigations and prosecutions of 12 each of the case studies, ie they're 13 contemporaneous to the events to which they 14 relate? 15 A. Yes. 16 Q. You say in paragraph 32 of your report that in 17 considering the actions and decisions of Post 18 Office Investigators and Post Office lawyers, 19 the question that you have asked yourself is 20 whether the actions and decisions were 21 reasonably open to the decision maker on the 22 material then available? 23 A. Yes. 24 Q. Is that right? 25 A. Absolutely. 9 1 Q. On occasions in your report you refer to 2 documents arising subsequently to those events, 3 either to the investigation or indeed after 4 conviction, for example accounts given by people 5 to the Second Sight investigation -- 6 A. Yes. 7 Q. -- or in civil proceedings or what the Court of 8 Appeal Criminal Division said in the Hamilton 9 appeals? 10 A. Yes. 11 Q. Do you consider that in referring to such 12 material, Second Sight, civil proceedings and, 13 for example, concessions made by the Post Office 14 in the Hamilton appeals, you are at risk of 15 judging matters with hindsight? 16 A. No. To take an example, where, in the Court of 17 Appeal, the Post Office conceded that they had 18 not obtained ARQ data in a particular case, 19 I took that as a basis to conclude that they had 20 not sought the ARQ data in that case. That was 21 something that, therefore, they had not done at 22 the time and I took it as evidence of what had 23 or had not been done at the time. 24 In the same way, in the Second Sight 25 reviews, in some cases they were able there to 10 1 refer to records of calls to call centres that 2 had been made by the postmaster in question. 3 That material, which had not been sought at the 4 time of the investigation, so far as I could see 5 from the contemporaneous documentation, but the 6 fact that at the Second Sight stage they were 7 able to look at it showed that it existed and, 8 again, therefore, it existed at the time that it 9 was not sought during the investigation. 10 Q. So it's subsequent materials that reflect back 11 to either the existence of documents or a state 12 of affairs, contemporaneous to the matters that 13 you're looking at? 14 A. Yes, and I should add, in relation to the Court 15 of Appeal, I have taken account of the 16 assessment of the Court of Appeal of their view 17 of what should or should not have been disclosed 18 because it seemed to me that they're a fairly 19 safe body to take into account in that, given 20 that they are the Court of Appeal. 21 But I have, nevertheless, come to my own 22 assessment of what I consider the 23 contemporaneous documentation shows was or was 24 not done and what should or should not have been 25 done but it's a comfort to know that they and 11 1 I are of the same view. 2 Q. At various points in your report you recognise 3 that your ability properly to assess what 4 happened at the time is limited by the fact that 5 there are only limited papers available to you? 6 A. Yes. 7 Q. Do you consider that care should be taken in 8 relation to your conclusions in general terms, 9 in that they may be based on incomplete 10 information or incorrect assumptions? 11 A. They may, particularly in the older of the 12 cases, be based on incomplete material. I've 13 made that clear in those cases. My conclusions, 14 certainly by the time one reaches the end of my 15 report, are based on a consideration of the 16 cases across the piece and, clearly, there is 17 the possibility that, in the cases where there 18 isn't the material, for example, on disclosure, 19 that that was a completely different disclosure 20 position than in the ones where I have seen the 21 material in relation to disclosure. 22 But it was all of the same kind, in the 23 cases where I saw it, and it didn't seem to me 24 unreasonable to draw conclusions based on what 25 I had seen on that basis. 12 1 Q. Thank you. In reaching your conclusions, did 2 you measure the conduct of the Post Office 3 Investigators and the Post Office lawyers 4 against the standards that you would have 5 generally expected to exist at the time in 6 practice or against what the law required under 7 codes, rules and guidance? 8 A. Certainly under the latter but because, as we 9 examined when last I was here, those codes and 10 rules had been accepted by the Post Office at 11 the time to apply to them and their 12 investigations and their charging decisions and 13 so on. But, clearly, having been in practice 14 myself through that period, I have an awareness 15 of how such cases were dealt with by, in 16 particular, the police and the CPS, and so that 17 will have also informed by view. 18 But I tried, insofar as I could, to judge 19 what was done by reference to what the law 20 required and what the codes under the law 21 required. 22 Q. Is that on the basis that it's not unreasonable 23 to expect a prosecutor to comply with the law? 24 A. Absolutely. 25 Q. In terms of the approach that I'm going to take, 13 1 I'm going to start at the end, as it were, ie by 2 examining the issues, topic by topic, one after 3 the other, rather than case study by case study, 4 and then drawing conclusions from that 5 examination of the case studies? 6 A. Yes. 7 Q. So I'm going to ask you to express your overall 8 conclusions in relation to each topic, explore 9 the reasons for those conclusions, and then 10 involve you in some illustrative dipping into 11 the materials to see whether we can exemplify 12 some of the points that you make by reference to 13 the contemporaneous materials? 14 A. Yes. 15 Q. That will take all of today and some of 16 tomorrow. Then tomorrow, or what time is left 17 of tomorrow, I am going to take you through so 18 many of the case studies, the 22 case studies, 19 time will allow; do you understand? 20 A. Yes. 21 Q. Thank you. Can we start, please, at page 218 of 22 your report, please -- 23 A. Yes. 24 Q. -- if that can be displayed. This the Volume 2 25 report, EXPG000004R. If we just wait a moment 14 1 for it to come up on the screen. Page 218. 2 If we can start at paragraph 620, please. 3 You say in the second line: 4 "At this stage, I seek to draw the strands 5 together of that analysis [ie the analysis of 6 the then 20 case studies] by topic. I should 7 emphasise, however, that these broader 8 conclusions are to be properly understood by 9 reference to the case-by-case analysis I have 10 set out above. Each case is individual, in that 11 each involved an individual who gave an account 12 to address an audit shortfall, and whose case 13 was then investigated and reviewed for 14 prosecution at different times by different 15 investigators and lawyers and by reference to 16 different evidence." 17 Then you say this: 18 "That said, a number of themes emerge clear 19 and strong across the 20 cases. Indeed, in 20 a number of respects it is unsettling how the 21 same issues were arising in the latter cases, 22 such as Sefton and Nield and Ishaq in 2012, as 23 have raised their heads in early cases, such as 24 Brennan and Yates in 2003." 25 You use the word "unsettling" there. What 15 1 was the nature and extent of your concern? 2 A. Clearly the rules that the law had developed 3 between 2003 and 2012, the Post Office's own 4 policies had developed with that, so that, for 5 example, they acknowledged the Code for Crown 6 Prosecutors as the basis for their charging 7 decisions, they had, albeit belatedly, 8 identified the requirement to pursue all 9 reasonable lines of inquiry under the CPIA Code, 10 and those changes had not resulted in changes in 11 relation to the approach. Charging decisions 12 were still made in a way that had great concern 13 about, and the pursuit of reasonable lines of 14 inquiry continued to evade those inquiries in 15 2012, as it had in 2003. 16 Perhaps the other area of concern was that 17 it became clear to me, just on what I had read, 18 that issues with Horizon and concerns about 19 various aspects of its operation were developing 20 over that period of time, and one might have 21 expected a more obvious change in the approach 22 of the Post Office to those issues over that 23 period of time, rather than continuing to 24 approach them, in many respects, in the same 25 ways 10 years on from the earlier cases that 16 1 I looked at. 2 Q. Thank you. Can we start, then, with the topic 3 of investigation -- I'm not going to take them 4 in precisely the same order as you have, I have 5 rejigged them slightly but, in fact, we do start 6 with investigation -- and look at paragraph 621, 7 if we just scroll down, please. 8 Is a summary of what you found in relation 9 to investigation the following: firstly, you 10 found no document which identified which 11 personnel were undertaking the role of 12 Investigator and which personnel were 13 undertaking the role of Disclosure Officer? 14 A. No, and, as I say in the report, that may on one 15 level have just been a recording problem that 16 one had to try and work out who was carrying out 17 these vital roles under the CPIA, rather than 18 finding anywhere where it said so. But the 19 concern I had that flowed on from that was, 20 where it wasn't identified, it was more 21 difficult to know what they appreciated as to 22 their role and who was supervising them in doing 23 it. 24 Q. That's the second issue. You say that the roles 25 played were not in accordance with the division 17 1 of responsibilities set out in the CPIA and the 2 Attorney General's Guidelines on Disclosure, in 3 that they were, I think, always undertaken by 4 the same person? 5 A. Yes. 6 Q. You say, thirdly, that it was unclear who was 7 supervising or directing the Disclosure Officer 8 and does that mean that there was no evidence 9 that you saw of such supervision or direction? 10 A. Yes, there was -- in many, but not all, the 11 cases there were investigation summaries or 12 investigation reports prepared by 13 an Investigator, which was addressed to Contract 14 Managers and persons of that sort. It was not 15 clear who was providing a supervision to the 16 investigation process in the case. There was no 17 material coming from them, for example, that 18 I saw giving instruction to the Investigator as 19 to reasonable lines of inquiry by way of 20 example. 21 Q. If we go over the page to paragraph 622, please. 22 You say that, in your first report -- it was 23 paragraph 108 -- you observe that there was 24 a distinction between the CPIA Code which 25 recognised that the same person could act as 18 1 both Investigator and Disclosure Officer, and 2 the Post Office position, which recognised that 3 they normally would be the same? 4 A. Yes. 5 Q. That was in their policy documents? 6 A. Yes. 7 Q. You said you recognise that that will often be 8 the case in smaller scale investigations by the 9 police and others, ie that they would, in fact, 10 as a matter of practice, be the same person? 11 A. Yes. 12 Q. But you so: 13 "My concern ... was that a check and balance 14 in the system, with 2 different viewpoints on 15 investigative and disclosure steps, was 16 routinely not being incorporated into Post 17 Office cases. That has been borne out by the 18 materials [that you have now seen]." 19 What checks and balances do you consider 20 were missing here that might not also be missing 21 from equivalent levels of police investigations 22 at the time? 23 A. So, so far as the Investigation Team are 24 concerned and the Disclosure Officer's role, 25 clearly the intention, as it seems to me, of the 19 1 CPIA Code is that you have your Investigator and 2 your Disclosure Officer separate so that there 3 is a degree of independence to the disclosure 4 assessment from the investigative one. So that 5 the person making the decisions as to disclosure 6 is not, inevitably, the person who has had to 7 come to an assessment of whether there is -- 8 whether the suspect is correctly to be charged 9 within the investigation process. 10 There was no cross-discussion between such 11 persons in these cases, because they would have 12 been talking to themselves, and so the person 13 who had interviewed the suspect, who had 14 acquired the evidence that they considered 15 necessary to prosecute the suspect, was then the 16 person who was deciding whether there was 17 material that undermined the case that they had 18 built in order to disclose it and there was no 19 one that they were talking to within the 20 investigation in relation to that. 21 I appreciate that may not happen either in 22 smaller scale cases investigated by the police 23 and prosecuted by the CPS, but what there is 24 then, in those cases, is a reviewing lawyer 25 within the CPS who has an independent oversight 20 1 of what that investigation has done and what 2 disclosure is necessary and raises issues in 3 relation to that. Here, of course, it was done 4 by the same organisation, albeit the Criminal 5 Law Division at the Post Office and my concern 6 there was that I saw, in many of these cases, 7 very little evidence of any such oversight by 8 them, of identifying reasonable lines of 9 inquiry, identifying things that needed to be 10 disclosed, contrary to a view having been 11 expressed by the Investigator/Disclosure 12 Officer. 13 So there wasn't that -- more than one person 14 looking at it, more than one organisation 15 looking at it, which, to an extent, the CPIA 16 Code envisaged. 17 Q. What do you understand the purpose or the 18 rationale for that division of labour, division 19 of responsibility, to be in the CPIA Code and in 20 the AG's Guidelines on Disclosure? 21 A. Well, it provides a degree of scrutiny of the 22 process. If it is just done by the 23 Investigator, who then decides whether the 24 material they've -- there's any material they've 25 obtained that they think undermines the case 21 1 that they have built, then there's no one to 2 stand back and ask those very important 3 questions. 4 There is a responsibility for the lawyer who 5 becomes involved in the case to do that and, in 6 some of these cases, that was done. But it just 7 seems to me that the CPIA Code regime envisages 8 more than two people being involved in that 9 conversation, and certainly more than one. 10 Q. Thank you. If we go on to paragraph 623, 11 please. You say -- and you give three examples 12 here, from the cases of Lisa Brennan, David 13 Blakey and Allison Henderson -- that: 14 "... the interviewing officer demonstrated 15 a very clear, settled conclusion adverse to the 16 defendant at the time of interview. In the case 17 of Ms Brennan she was told that the officer 18 believed she had done it, Mr Blakey was told his 19 account was 'ridiculous' and Mrs Henderson 20 believed that the Investigator had already drawn 21 his own conclusions." 22 So there you're referring to, I think in the 23 first two cases, your reading of the transcripts 24 of interview -- 25 A. Yes. 22 1 Q. -- and in the third case something that 2 Mrs Henderson said. You say: 3 "It is a concern if that same settled 4 conclusion informed the disclosure process as it 5 did the interview." 6 So you're saying, is this right, that these 7 are real world examples of where an Investigator 8 appears to have displayed, in the course of 9 an interview, a settled conclusion as to the 10 guilt of the suspect, and yet that person is 11 then asked to review disclosure and give 12 disclosure of documents that might undermine the 13 prosecution case or assist that of the 14 defendant. 15 A. Yes. So to take Ms Brennan as an example, the 16 interviewing officer said to her: 17 "I think it's a question of not whether 18 you've done it but why you've done it. I think 19 you've done it deliberately. No one else is 20 making mistakes like you." 21 That was the person who was also then 22 required to consider what reasonable lines of 23 inquiry had to be pursued that might lead away 24 from the person he believed had done it and then 25 to undertake the disclosure process to identify 23 1 what undermined his conclusion that she had done 2 it, and that, where the other checks and 3 balances weren't there to guard against that, 4 gave at least the risk that reasonable lines of 5 inquiry would not be identified and/or 6 disclosure would not be made. 7 Q. So that Investigator said in interview to 8 Ms Brennan "No one is making mistakes like you", 9 essentially? 10 A. Yes. 11 Q. That was also the person who had the 12 responsibility then to investigate whether or 13 not anyone was making mistakes like Lisa 14 Brennan? 15 A. Yes, and, I have to say, on the material from 16 that case that I've seen -- and it's one of the 17 early cases and so the material is limited -- 18 there wasn't the evidence that checks had been 19 made before that interview or after that 20 interview, to identify whether there were other 21 people making the same mistakes and/or whether 22 the system was generating similar problems. 23 Q. Thank you. Can I turn to topic 2, please, the 24 Post Office's investigative and prosecutorial 25 focus. 24 1 In your Volume 1 report you said that 2 a number of Post Office policies drew attention 3 to financial and business related factors in 4 making prosecutorial decisions. 5 A. Yes. 6 Q. You said that that was your reading of the 7 documents that did not instill confidence in the 8 independence, fairness or transparency of those 9 decisions? 10 A. Yes. 11 Q. At various points your Volume 2 report, you 12 refer to the approach of the Post Office 13 seemingly being driven by a desire to protect 14 Horizon -- 15 A. Yes. 16 Q. -- that arising in particular in the context of 17 disclosure decisions and in pleas -- 18 A. Yes. 19 Q. -- consideration of pleas? 20 A. Yes. 21 Q. You tell us -- there's no need to turn it up -- 22 for example that -- this is paragraph 414 -- the 23 prosecution of Mrs Misra had become a battle for 24 the reputation of the Horizon system with the 25 prosecution determined to destroy the attacks on 25 1 the system? 2 A. Yes, and destroy was the word used, albeit after 3 her conviction, in a memo by someone in the Post 4 Office talking about her trial. 5 Q. You told us in Volume 1 of your reports that 6 an Investigator was under a duty to pursue all 7 reasonable lines of inquiry for the duration of 8 the relevant period we're looking at, including 9 those that pointed away from the suspect? 10 A. Yes. 11 Q. But that was not spelt out in any Post Office 12 policy explicitly until 2010? 13 A. Yes. 14 Q. That would include, is this right, 15 consideration, ie the duty would include 16 consideration, of whether accounting shortfalls 17 at Horizon terminals might be caused by or lie 18 with the computer system itself? 19 A. Yes. 20 Q. In your Volume 2 report, you identified some 21 instances where individuals in the Post Office 22 were "rebutting" or were focused upon rebutting 23 the defence, rather than testing the prosecution 24 case -- 25 A. Yes. 26 1 Q. -- or the reliability of the evidence on which 2 the prosecution was founded? 3 A. Yes. 4 Q. The cross-references there are paragraphs 217, 5 423 and 438 of your second report. 6 Did you observe a pattern or a common theme, 7 through some or all of the case studies, of 8 a prosecutorial or investigative approach being 9 driven by a desire to protect the Horizon 10 system? 11 A. In a number of respects, just to give examples 12 which I suspect we'll come back to in relation 13 to the acceptance of pleas in a number of cases, 14 the acceptance of those pleas was explicitly 15 made, conditional on there being no criticism of 16 the system. 17 When in 2012, I think, a form of words was 18 put together to address the fact that issues 19 with Horizon had come up in a number of cases 20 around the country, there was a significant part 21 of that asserting that there were no problems, 22 and there was, on the face of the disclosure, in 23 cases, very little that did identify faults 24 along the way, even where faults were being 25 understood. 27 1 Q. Did you form a view as to whether that desire to 2 protect the Horizon system affected the 3 independence and fairness of the Post Office 4 Post Office's investigations and prosecutions? 5 A. Well, certainly in the majority, at least, of 6 these cases, enquiries were not made, for 7 example, by the obtaining of ARQ data and 8 looking at it, to identify whether there were 9 faults in the system, and whether that was 10 because those investigating did not appreciate 11 that they needed to, or whether it was because 12 they chose not to, the fact is that they didn't. 13 In relation to charging decisions and the 14 supervision by prosecutors of the system, in the 15 majority of these cases, although if they were 16 applying the Code for Crown Prosecutors they 17 were expressly advised to consider the 18 reliability of the evidence on the basis of 19 which they were making charging decisions, they 20 did not raise any question about whether there 21 was any question as to the reliability of the 22 Horizon material, which was the basis for their 23 prosecution decisions, and that's either because 24 they did not consider they needed to, or they 25 weren't aware there was any issue with it, or 28 1 they chose not to. 2 But the fact is they didn't and, where 3 issues were coming up, as they did increasingly 4 with postmasters in interview, in defence 5 statements and, thereafter, raising issues, the 6 approach was to say, "You need to tell us 7 exactly what you say happened, when it happened, 8 in relation to what transaction it happened, and 9 then we'll look at it", rather than proactively 10 identifying "This is the evidence that we are 11 relying on. We have to be satisfied that it is 12 reliable and we have to demonstrate that it's 13 reliable and that's for us to do, not for us to 14 ask you to do it for us". 15 Q. So if I were to summarise that, you would say 16 that you can't -- or you won't -- say what the 17 motivation was because that's probably for 18 others to judge? 19 A. Absolutely. 20 Q. Your expert evidence is limited to the fact that 21 the issues that you've identified, the steps 22 that you've mentioned, were not undertaken. 23 Would it be right that, irrespective of the 24 motivation, whether it was because of a lack of 25 understanding, a lack of interest, or something 29 1 more malign, what was done was not in accordance 2 with the Post Office's duties as Investigator 3 and prosecutor? 4 A. No, absolutely. 5 Q. Can I look at some of the material that after 6 goes to motivation and can we start, please, by 7 looking at -- it'll come up on the screen -- 8 POL00055590. If we could look at the top half 9 of the page, please. Thank you. 10 This is, for shorthand, known as the 11 "Horizon bashing bandwagon" email, which has 12 been referred to a number of times in the 13 Inquiry, and is a document that I think you saw. 14 A. Yes. 15 Q. It's post-trial in the case of Seema Misra. 16 A. Yes. 17 Q. The title of the document is -- or the subject 18 line of the email is "Seema Misra -- Guildford 19 Crown Court -- Trial -- Attack on Horizon". 20 You'll see the contents in there and I think 21 you'll be familiar with them. 22 A. Yes. 23 Q. It refers to an unprecedented attack on the 24 Horizon system and: 25 "... through the ... work of [a number of 30 1 people] we were able to destroy to the criminal 2 standard of proof ... every single suggestion 3 made by the defence." 4 I think this was the email to which you were 5 referring earlier -- 6 A. Yes. 7 Q. -- the language of destruction or destroy? 8 A. Yes. 9 Q. It concludes: 10 "It is to be hoped that the case will set 11 a marker to dissuade other defendants from 12 jumping on the Horizon bashing bandwagon." 13 Did you see these kind of sentiments 14 reflected elsewhere? 15 A. Yes. 16 Q. Do they reflect, in your view, a disinclination 17 to test the reliability of the evidence on which 18 the prosecutions are founded? 19 A. Certainly a disinclination, on one view it 20 speaks of a complacency about the system, that 21 the system must be right and that this is the 22 desperate attempt of someone, who the computer 23 is saying has stolen our money, to identify that 24 as just a defence tactic which needs to be 25 stamped on. 31 1 Or it's an appreciation that, if these lines 2 are pursued, it will generate at least the risk 3 of doubt on the part of a jury about the 4 reliability of this material, and so it's better 5 to stamp on it from the outset, rather than have 6 that risk. 7 Q. What about -- 8 A. Rather than -- sorry, to identify -- because 9 we're here in 2010, and we have people who are 10 copied into this email who'd been making 11 investigative and charging decisions for quite 12 some time by then. Rather than identifying this 13 keeps coming up, this is something we need to 14 look at to be satisfied that we are prosecuting 15 on the basis of reliable evidence. 16 Q. What about the view that this is to be regarded 17 as the kind of email that many of us may have 18 seen in practice, a back-slapping email after 19 we've won a case? 20 A. I think, going back to what I was just saying, 21 to view a recurrent issue arising in cases 22 through completely separate suspects saying 23 things about the system and saying that there 24 must be something going on here, because I don't 25 understand this, through those various different 32 1 systems, to categorise that as a "Horizon 2 bashing bandwagon" is not, in my view, just 3 being pleased that you've got a good result in 4 Guildford. That's a very protective stance 5 about the source of the evidence that is being 6 used to prosecute people across the country. 7 Q. Thank you. If we can move on, please. No need 8 to turn it up, but in paragraph 567 of your 9 report, your Volume 2 report, you refer to 10 a disclosure form of words -- 11 A. Yes. 12 Q. -- about Horizon issues, which was described in 13 the contemporaneous material as a story -- 14 A. Yes. 15 Q. -- and which appears to have been partially 16 prepared by the Post Office's Head of Public 17 Relations and Media. 18 A. Yes. 19 Q. I wonder whether we could look at that document, 20 please. POL00058155. If we can start with 21 page 3, please. It's an email from Jarnail 22 Singh to Hugh Flemington, so lawyer to lawyer. 23 "2nd Sight review draft" is the title: 24 "After a number of meetings between Post 25 Office Management and Members of Parliament in 33 1 relation to the court cases, it was agreed that 2 the Post Office would undertake a review of the 3 cases which had been raised by the Member's 4 constituents. 5 "In order to provide assurance to the 6 interested parties, Post Office Management 7 proposed the use of independent auditors, 2nd 8 Sight. The review to be undertaken will be 9 specifically restricted to the cases raised by 10 the MPs as well as reviewing the accounting 11 procedures, processes and reconciliations 12 undertaken in relation to the cases in question. 13 Before formal instructions are given to the 14 independent auditors, agreements will be sought 15 from all interested parties, namely the MPs and 16 Justice for Subpostmasters. The subpostmasters 17 have requested a forensic accountant of their 18 choice to be appointed to oversee the cases 19 being reviewed by 2nd Sight. 20 "All the above is accepted based on the 21 terms of the review being carried out, but it 22 must be stressed that this is not 23 an acknowledgement by Post Office Limited that 24 there is an issue with Horizon. The Horizon 25 system is working properly, robust and is being 34 1 used up and down the country, when the system 2 has been challenged in criminal courts, it has 3 been successfully defended." 4 If we scroll up, please, we can see that the 5 lawyer, Hugh Flemington, sends the document on 6 to Susan Crichton, Alwen Lyons -- she was then 7 the Company Secretary: 8 "This is the story ... which J [I think 9 that's Jarnail] put together following our 10 meeting last week. Any comments please before 11 we release it?" 12 Then up, please. The Company Secretary 13 sends it on: 14 "Can you go to Alana [who I believe is 15 a person within the Media and Communications 16 Department] as they are the experts with this 17 request for the 'story'." 18 Alana is asked by Simon Baker: 19 "Please can you help us craft our message 20 around the Second Sight review. We need to 21 combat the assertion that the review is 22 an acknowledgement that there is a problem with 23 Horizon. 24 "Jarnail has drafted some words below. Do 25 they strike the right tone?" 35 1 Then further up, please. Then further up. 2 We can see Mr Kelleher's reply, if we go further 3 up, back to Simon Baker: 4 "As this message will most probably find its 5 way into the media, we do need to get the 6 message across from the start that we continue 7 to have full confidence in the robustness of the 8 Horizon system and then reinforce it so 9 I suggest the following tweaking to the proposed 10 wording from Jarnail ..." 11 We can see, then, that there are three 12 paragraphs, two on that page -- I'm not going to 13 do a track changes comparison. The last one is 14 a significant amendment: 15 "All the above is accepted based on the 16 terms of the review being carried out, but this 17 is in no way an acknowledgement by the Post 18 Office that there is an issue with the Horizon. 19 Over the past ten years, many millions of branch 20 reconciliations have been carried out with 21 trains and balances accurately recorded by more 22 than 25,000 different subpostmasters and the 23 Horizon system continues to work properly in 24 post offices across the length and breadth of 25 the UK. When the system has been challenged in 36 1 the criminal courts, it has been successfully 2 defended." 3 Then scroll up, please. Mr Baker says: 4 "That works. Thanks." 5 Then it's passed back down to the lawyers: 6 "You have seen the final draft of 'Our 7 story'. Can this now be relieved to our agents 8 and counsel for consistent approach and 9 submissions when there is challenges to the 10 Horizon." 11 I think we can understand the sense of what 12 Mr Jarnail Singh is referring to there. 13 A. Yes. 14 Q. So did you understand this to be a story that 15 was to be reflected in the approach taken by 16 lawyers, including when submissions are made 17 about challenges to Horizon. 18 A. Yes. 19 Q. Did you understand that this was to be reflected 20 in evidence in any way? 21 A. I certainly understood it was to be reflected in 22 disclosure or response to disclosure. This 23 email I saw, in the context of the case of 24 Ms Sefton and Ms Nield, and it's not altogether 25 clear if and if so when it reached them but, 37 1 certainly, it was a topic of requests from them 2 for disclosure, that it was in that context that 3 this seems to arise in that case. So I took it, 4 at the very least as being a statement that was 5 going to be provided as disclosure where issues 6 about Horizon arose. 7 So, as it said there, "released to our 8 agents and counsel", that's the people who are 9 doing the prosecuting for them, so that this 10 would be what they would be saying, what they 11 would be disclosing, what they would be 12 submitting when a defendant sought to raise any 13 issues with the operation of Horizon. 14 Q. What concern did you have, if any, over this? 15 A. Well, it was a press release, rather than 16 a disclosure note. It didn't particularise what 17 issues had arisen in earlier cases, how often 18 they had arisen, in what circumstances they had 19 arisen, over what time period they had arisen, 20 what people were saying in those other cases had 21 happened, what expert evidence had been obtained 22 on either side in relation to them. It 23 certainly does not address whether any actual 24 bugs or problems or flaws had been identified, 25 and this is 2012, and so certainly, on the basis 38 1 of material I'd seen from 2010, in the context 2 of the case of Ms Misra, there was material 3 that, from a disclosure point of view, did raise 4 issues about the reliability of Horizon, at 5 least potentially, and this document would not 6 have told you any of that -- 7 Q. Thank you. 8 A. -- quite the opposite. 9 Q. Can I show you a document that you may not have 10 seen before. It's something that I snuck in 11 over the weekend and so, if you need time to 12 think about it, then do say so. POL00120723. 13 You'll see this is a letter dated 19 February 14 2013, in relation to the Post Office v Kim 15 Wylie. That's not one of the cases you have 16 been asked to look at. 17 A. No. 18 Q. You'll see that it's from Cartwright King to 19 McKeag & Co Solicitors, who were the defence 20 solicitors for Kim Wylie. If we scroll down, 21 please, it's a reply to a letter. I can say 22 that that letter enclosed some expert evidence, 23 some defendant expert evidence. Cartwright King 24 say: 25 "Thank you for your letter dated 14 February 39 1 2013. Please find enclosed a notice of 2 Additional Evidence ..." 3 Amongst those is a statement from Stephen 4 Bradshaw -- and I think you know him to be one 5 of the Post Office Investigators -- 6 A. Yes. 7 Q. -- dated 20 November. Then paragraph 2 we can 8 skip over. Then paragraph 3, Cartwright King 9 say: 10 "The Crown's position on the integrity of 11 the Horizon system is set out in Steve's 12 Bradshaw's statement dated 20 November 2012", 13 ie it's set out in the witness statement that 14 we're serving on a you as an NAE, a notice of 15 additional evidence. 16 Can we look, please, at that witness 17 statement that was attached to this letter. 18 It's page 5. 19 Thank you. We can see Mr Bradshaw's witness 20 statement of 20 November 2012. So that's the 21 NAE that's being served and, if you just read it 22 to yourself, and see whether it starts to become 23 familiar to you. 24 A. Yes, it does. 25 Q. If we scroll down. Then, over the page, please. 40 1 I think you'll recognise that -- 2 A. Yes. 3 Q. -- as the text of the email -- 4 A. Yes. 5 Q. -- drafted by the Head of Public Relations and 6 Media of the Post Office, and it's now become 7 a witness statement. 8 A. Yes. 9 Q. If I was to tell you that Mr Kelleher, the Head 10 of Public Relations and Media, had not only been 11 cut and pasted into this witness statement but 12 had been cut and pasted into other witness 13 statements, what would your view be? 14 A. Given the timing of this, it's profoundly 15 disturbing that both as evidence in cases, which 16 is advanced to be true to the best of the 17 author's belief, and as the extent of disclosure 18 in 2012 in these cases -- 19 Q. This is February 2013 -- 20 A. -- yes -- 21 Q. -- it's being served, yes? 22 A. -- that that is it. That is all that 23 a defendant would be informed as to that which 24 was capable of undermining the prosecution case 25 or assisting them in relation to the operation 41 1 of Horizon, that was an assertion from, 2 effectively, a press release that the system 3 works well, and that where others have tried to 4 challenge it, they have failed. 5 That last bit, sadly, is true, on the basis 6 of the cases that I've seen but the fact remains 7 that this is not a proper approach to the 8 disclosure on these topics. It's certainly not 9 a proper approach as to the extent of disclosure 10 on these topics and it's a rather disquieting 11 approach to the use of a witness statement. 12 Q. Why is it a rather surprising approach to the 13 use of a witness statement? 14 A. Well, it's -- clearly, witness statements can be 15 drafted not just by the person who signs them 16 and I'm aware of that. But to sign up to this, 17 unless you really did think this was all that 18 one could say on the topic of the operation of 19 Horizon, it is disquieting, and someone, such as 20 Mr Bradshaw, whose name comes up in a number of 21 the cases I've seen, over a period of time that 22 I'd seen, for him to be signing up to that, 23 knowing that this is -- what issues had come up 24 in cases, what had been said by these completely 25 independent people about what they had 42 1 experienced in their use of Horizon, it doesn't 2 really reflect, I'd have thought, his own 3 experience, let alone that of the Post Office 4 that he was working for. 5 Q. Thank you. That can come down. 6 You tell us in your Volume 2 report -- the 7 cross-references are paragraphs 278 and 458, and 8 paragraphs 34, 35 and 76 of your Volume 2A 9 report -- about focus or seeming focus on the 10 recovery of money by the Post Office. 11 A. Yes. 12 Q. Did you form a view on whether a focus on the 13 recovery of money was an example of the Post 14 Office acting in a manner that was consistent or 15 inconsistent with its duties as a prosecutor? 16 A. As a starting point, clearly where the evidence 17 demonstrated that someone had taken their money, 18 and had been convicted of theft on that basis, 19 then for them to seek to recover that money was 20 entirely consistent with the normal operation of 21 the system. That's what the confiscation 22 process is usually used for. And, equally, 23 voluntary repayments of monies that have been 24 taken and/or have been lost as a result of the 25 action of a defendant, will be a factor that 43 1 will be taken into account in deciding whether 2 you're going to prosecute them and also in 3 assessing the appropriate level of their 4 sentence for the court to assess that at the end 5 of the process. 6 But here, in a number of cases, pleas were 7 being taken to false accounting, the basis that 8 was advanced from interview on, usually, by the 9 suspect, was that they hadn't taken the money, 10 they didn't know where the money had gone. They 11 couldn't explain why the computer was saying the 12 money had gone but, for various reasons, they 13 had chosen or felt compelled to adjust the 14 records to effectively stave off the day when 15 the accounting errors were held against them by 16 their contracts at the end of the day. 17 And so there was an acceptance of a plea 18 that did not involve financial loss that was 19 caused by the suspect, and yet the suspect was 20 pursued for that financial loss, both on 21 occasions by it being made a condition of the 22 acceptance of their plea, and also through the 23 use of confiscation as a means to get the money 24 back from them. 25 Q. Did you form a view as to whether it was a form 44 1 of abuse of process to seek confiscation in 2 circumstances where the Post Office could not 3 prove that the money was stolen by the accused 4 and a plea to false accounting had therefore 5 been taken? 6 A. Well, on the one hand, I'm conscious that, at 7 least in one of these cases, an argument was put 8 forwarded on behalf of the defendant that it was 9 an abuse of process to and that argument was not 10 successful. 11 Q. Yes. 12 A. But, equally, I am aware that the Court of 13 Appeal expressed, at the very least, concerns 14 about the tying of the recovery of funds from 15 someone who had pleaded to false accounting 16 rather than theft, that that was a concern that 17 they had in those cases as to whether that was 18 appropriate. 19 I share that concern. It's perhaps a use of 20 the levers of the prosecution process to obtain 21 repayment of the money, where, otherwise, 22 insofar as I understand the contract position -- 23 as we touched on last time, I don't understand 24 that very much -- that, rather than using civil 25 recovery under the contract, they were using the 45 1 criminal process and the levers of the criminal 2 process, such as confiscation, such as it being 3 a condition of the acceptance of a plea to get 4 the money back, when they hadn't actually proved 5 that the money had gone in the first place. 6 MR BEER: Thank you very much. 7 Sir, given the time we started this morning, 8 I propose to take the morning break now until 9 12.00 and then sit from 12.00 until 1.00. 10 SIR WYN WILLIAMS: Yes, that's fine Mr Beer. 11 MR BEER: Thank you very much, sir. 12 SIR WYN WILLIAMS: 12.00. 13 ( 11.45 am) 14 (A short break) 15 (12.00 pm) 16 MR BEER: Good afternoon, sir. Can you continue to 17 see and hear us? 18 SIR WYN WILLIAMS: Yes, thank you, yes. 19 MR BEER: Thank you. 20 Mr Atkinson, can we move on. We've looked 21 at topic 1, investigation. Topic 2, the 22 investigative and prosecutorial focus. 23 Can we turn to topic 3, which is interviews. 24 A. Yes. 25 Q. From the case studies that you reviewed, do you 46 1 consider that the Post Office complied with its 2 Police and Criminal Evidence Act and the Codes', 3 issued thereunder, obligations in relation to 4 ensuring that the interviewee knew their rights 5 and were given a proper opportunity to be 6 represented if they wanted to? 7 A. Yes. My only hesitation on that was one case, 8 and I'm afraid off the top of my head I can't 9 remember, which was, where -- 10 Q. Was it Thomas? 11 A. -- yes -- where Mr Thomas asked to have 12 a particular solicitor and the decision was 13 taken not to wait for the solicitor and they 14 therefore arrested him or got the police to 15 arrest him so that they could carry on with the 16 interview, but with -- but I think, in his case, 17 ultimately he did have his solicitor by the time 18 he was interviewed. So with that one wrinkle, 19 yes, they complied with their PACE obligations. 20 Q. In paragraph 623 of your report, which is on 21 page 219, we looked at it earlier, you note, 22 I think critically, the comments and expressions 23 of disbelief by some Investigators in the course 24 of the interviews. In your experience as 25 a prosecutor, looking regularly at interviews in 47 1 the period 2000 to 2012, would you agree that 2 such comments and expressions of disbelief, even 3 if inappropriate, would nonetheless often be 4 seen from police officers or HMRC officers in 5 interview? 6 A. I can certainly think of occasions when I've 7 seen them. I wouldn't say it was a routine 8 thing. I can think of cases where such 9 expressions have resulted in applications to 10 exclude the interview in those cases. And the 11 point I was seeking to make here was not 12 a quality check on the quality of interviewing 13 questioning; it was more that this was the 14 person who was making the investigative and 15 disclosure decisions in the case, who was saying 16 this, and that was why I thought it worth 17 identifying. 18 Q. Thank you. The Inquiry has heard that 19 pre-interview disclosure was given to 20 an interviewee's legal representative, prior to 21 the interview but that, if the interviewee was 22 not legally represented, then they wouldn't be 23 provided with pre-interview disclosure. Was 24 that in accordance or not in accordance with 25 practice as you understood it? 48 1 A. Home Office guidance, which I was given a copy 2 of, amongst many other things last week, did 3 quote from a police approach, which was to that 4 end: that the -- when not represented, documents 5 wouldn't be handed over to a suspect, albeit 6 that the same guidance made clear that the 7 suspect should nevertheless be put in a position 8 to understand why they were being interviewed, 9 what they were being interviewed about. So, 10 even if they didn't get physical documents in 11 the way that a solicitor would, they did get 12 an understanding of what was going on. 13 Q. I think the guidance that you're mentioning -- 14 there's no need for us to turn it up -- is Home 15 Office guidance -- 16 A. Yes. 17 Q. -- dated 31 August 2023 -- 18 A. Yes. 19 Q. -- ie from this year -- 20 A. Yes. 21 Q. -- quoting from a national police document -- 22 A. Yes. 23 Q. -- that tends to suggest that the purpose of the 24 provision of pre-interview disclosure is to 25 allow the legal representative to understand the 49 1 nature of the case -- 2 A. Yes. 3 Q. -- and provide appropriate advice to the 4 suspect, in particular on whether to answer 5 questions or not? 6 A. Yes, and certainly, within my experience well 7 before 2023, I'm aware that, where a suspect was 8 unrepresented, they were not given copies of 9 documentation, albeit that they were then asked 10 about that documentation during interview, and 11 that would accord with the approach in the Home 12 Office document. 13 Q. Thank you. Was it your experience in police and 14 CPS cases that, following an interview conducted 15 under PACE, following a charging decision, it 16 would be normal for a full transcript to be 17 prepared of the interview, so that a CPS lawyer 18 could review it? 19 A. Certainly at the very least, the reviewing 20 lawyer would have more than a paragraph's worth 21 of summary of an interview before making 22 a charging decision. I certainly can think of 23 cases, particularly the smaller end of cases, 24 where the document that you would have would be 25 more of a summary than a full transcript but it 50 1 would quote the key parts in full. 2 Q. Is it right that, as part of disclosure in 3 a police and CPS case, what ought to be given is 4 an interview transcript, if one is available, 5 and the tape recording or digital recording of 6 the interview -- 7 A. Yes. 8 Q. -- if available? 9 A. Yes. 10 Q. The defence would, therefore, have the 11 opportunity to check the accuracy of the 12 transcript of interview? 13 A. Yes. 14 Q. Is it right that one of the standard forms of 15 directions that courts would issue in 16 a contested case would be for the parties to 17 agree interview edits in advance of trial? 18 A. Yes, and certainly there was a stage at which 19 the form that was completed at the first 20 substantive hearing in the Crown Court of the 21 case -- and its acronym changed over time -- but 22 at that hearing, one of the questions on the 23 form was whether the tapes had been provided to 24 the defence, and then a follow-on question as to 25 the agreeing of an accurate transcript between 51 1 the parties. 2 Q. That process would include checking whether the 3 transcript is accurate versus the tape -- 4 A. Yes. 5 Q. -- agreeing if possible any summaries of parts 6 of the interview -- 7 A. Yes. 8 Q. -- and excluding any material that it was agreed 9 to be inadmissible or identifying if there was 10 a dispute over the admissibility of dispute 11 material? 12 A. Yes. 13 Q. Would there then be an attempt to agree between 14 counsel the edits? 15 A. Yes. 16 Q. Was that, so far as you can see, an approach 17 that was adopted in the Post Office 18 prosecutions? 19 A. I can't, off the top of my head, think of 20 an example of seeing discussion in the 21 paperwork, which is all I can go on, about that, 22 one way or the other. 23 Q. In the case of Mr Brennan -- I'm not going to 24 ask for these to be turned up -- but there are 25 two versions available to us of the ROTI, the 52 1 Record of Taped Interview. 2 A. Yes. 3 Q. The first, POL00047322, contains the expressions 4 of incredulity that you mentioned. The second, 5 POL00047320, has them excised, and the metadata 6 from that second version appears to suggest that 7 it was created shortly before trial? 8 Would you expect that sort of comment from 9 an interviewing officer to be excised at before 10 interview at the request of the defence? 11 A. At the request of the defence, yes. 12 Q. But do I understand that the point you were 13 making in paragraph 623 to have a different 14 object or different target? 15 A. Yes. 16 Q. It wasn't about the editing of interviews? 17 A. No. 18 Q. It was about the identity of the investigating 19 and then Disclosure Officer? 20 A. It was to the mindset of the investigating and 21 Disclosure Officer, particularly the Disclosure 22 Officer. 23 Q. Thank you. Can we move on to topic 4, please, 24 which is a substantial topic: charging 25 decisions. If we can split this up, please, and 53 1 start with some general points about charging 2 decisions. I'm at page 223 of your report. 3 A. Yes, thank you. 4 Q. Paragraph 632. I think it's right that, in 5 relation to charging decisions, you struggled to 6 identify who had taken the final decision in any 7 case to charge a suspect with a criminal offence 8 or offences? 9 A. Yeah, and this follows on from the concern 10 I expressed when last I was here that there were 11 a number of documents, policy documents from the 12 Post Office that at least suggested that 13 business managers or, indeed, I think in 14 a couple of cases, HR personnel, would be making 15 decisions in relation to prosecution. So I was 16 very keen to see evidence of who actually made 17 the decision and who they were and what their 18 position was. I didn't see anything like that. 19 I saw advices from lawyers, internal advices in 20 the first instance, but it was not clear who 21 acted on those advices. 22 Q. So that's an identity of decision maker issue? 23 A. Yes, and whether the person who was making the 24 decision was applying the Code for Crown 25 Prosecutors, for example, what factors they 54 1 actually looked at. 2 Q. And what reasoning was included in that decision 3 maker's record -- 4 A. Yes. 5 Q. -- of decision making? 6 A. Yes. If any, yes. 7 Q. Over the page to paragraph 633. You say: 8 "The advices relating to charge that I have 9 seen produced in the main by lawyers working for 10 the Post Office Criminal Law Division do give 11 rise to real concerns." 12 So I think the closest you came to 13 a reasoning for charge, even if it was not the 14 decision to charge -- and I'm using "charge" as 15 a shorthand for initiating process by summons -- 16 A. Yes. 17 Q. -- were these advices from Criminal Law Team 18 members? 19 A. Yes. 20 Q. You say they gave rise to real concerns. Can 21 you explain why these advices gave rise to real 22 concerns, please? 23 A. They were always very short, and brevity is 24 a fine quality but not where it means you cannot 25 actually discern from the charging advice what 55 1 the basis for the conclusion reached in that 2 advice is, what test has been applied, what 3 factors have been taken into account, what 4 evidence it is -- has been identified as 5 underlying the conclusion. 6 In the main, the documents set out the 7 conclusion and that was it. So they didn't show 8 their workings in any way and where, 9 particularly, decisions were being made to 10 charge an offence of theft where, on what I had 11 seen, it was far from clear what basis there was 12 for reaching a conclusion that there was 13 a realistic prospect of a conviction for theft, 14 the lack of any such analysis was troubling. 15 Q. You mentioned in paragraph 633, as well, that 16 they took as read the evidential position set 17 out in the Investigator's summary. 18 A. That was my assumption, on the basis that there 19 was nothing else and that it was -- the advice 20 was usually addressed to the person who'd 21 written the summary and so an Investigator had 22 put together their assessment of the evidence, 23 had sent it, as far as I could see, to a lawyer 24 in the Criminal Law Division and the Criminal 25 Law Division lawyer had sent it back with the 56 1 conclusion as to whether they considered there 2 was a realistic prospect of a conviction, 3 without anything else. There was no suggestion 4 in any of these that they had seen anything 5 else, before making their -- giving their 6 advice. 7 Q. Just concentrating on the question of what 8 information was included in that charging 9 advice, rather than the merits of the decision 10 reached, based on your knowledge of the Crown 11 Prosecution Service and bringing into account 12 the fact that I think your practice, even in 13 2000 to 2012, might have been concentrating on 14 cases of significance or unusual complexity. If 15 you were to review a sample of CPS charging 16 decisions made by CPS lawyers in that period, in 17 the ordinary run of criminal cases of 18 an equivalent seriousness to these, do you think 19 you would find, on the file, an advice which set 20 out or which explained how the evidence met the 21 Code evidential test? 22 A. Clearly, they -- those that I saw varied in the 23 degree of analysis but, even in the period 2000 24 to 2013, I saw charging decisions across a whole 25 range of offences and there was a real adherence 57 1 to the Code for Crown Prosecutors, in that they 2 would set out "These are the things we have to 3 go through, and these are how we have gone 4 through them", and that did usually -- I'm not 5 going to say always but usually -- involve 6 an analysis of the evidence. 7 There would be reference, for example, to 8 the account in interview. There'd be reference 9 to the loser statement, if that was the type of 10 offence, or the complainant's statement. There 11 would be an analysis of the -- anything that 12 might undermine the credibility of the 13 complainant. 14 Those things would be there. Whether they 15 would be all there, whether they were in 16 themselves always sufficient is perhaps 17 a separate question, but there would certainly, 18 in those that I saw, be an analysis of the 19 evidence. There would at least be a reference 20 to aspects of the evidence in those decisions. 21 Q. Put shortly, are you holding the Post Office to 22 an ideal standard, rather than reflecting the 23 reality of the standards that were applied by 24 other prosecutors, in making the criticism of 25 these charging decisions that you have? 58 1 A. I don't think I am at all. I think, 2 particularly once the Post Office had expressly 3 said that it was going to apply the Code for 4 Crown Prosecutors, that then I don't think it's 5 unreasonable to expect to see an analysis by 6 reference to that test. Long or short, but 7 an analysis, and where you are making a decision 8 about particular offences that involve 9 particular elements that are the elements that 10 you'll need to consider. So for example, in 11 relation to the offences we are generally 12 concerned with in these cases, a question of 13 dishonesty, there ought, in my view, to be at 14 least a reference to the fact that you need to 15 prove it, and perhaps the evidence that you rely 16 on to do so. 17 Q. You wouldn't say that's not asking too much? 18 A. No. 19 Q. What about in a theft case, identifying that 20 you've got to prove an appropriation and asking 21 oneself the question: how do we prove 22 an appropriation? 23 A. Absolutely. 24 Q. What is the evidence of appropriation? 25 A. Yes, what is the evidence that the money has 59 1 gone and has gone to the -- 2 Q. And gone at the hands of this person? 3 A. Yes, yes. 4 Q. If we turn up, please, page 224 of your report. 5 EXPG000004R, thank you, page 224. If we 6 look at the last three sentences on the 7 substance of paragraph 633 there, you say: 8 "In particular, this involved consideration 9 of the evidential basis to establish dishonesty, 10 evidence to show where the money had gone, and 11 whether the evidence was reliable." 12 I think you told us last time that all 13 iterations of the Code for Crown Prosecutors 14 directed the CPS lawyers, or those who were 15 applying the Code, to consider reliability; is 16 that right? 17 A. Yes. 18 Q. You say: 19 "By way of example: 20 "In the case of Lisa Brennan, she was 21 charged with theft even though the internal 22 memorandum sent by the lawyer to the 23 Investigator account whether there was evidence 24 of stealing as opposed to the covering up of 25 shortages, and whether there was evidence that 60 1 she was dishonest rather than incompetent." 2 A. Yes. 3 Q. I think if we track that document down -- we're 4 not going to do it now -- we'll find that that 5 was the very advice that said there's 6 a realistic prospect? 7 A. It was as near as I could find to one, in that 8 case, and that -- again, it was an early case 9 but there was nothing to suggest that there was 10 anything else, and so it wasn't that the 11 investigator provided evidence to show evidence 12 of stealing, as opposed to covering up shortages 13 or evidence of dishonesty, rather than 14 incompetence, before any decision was made to 15 charge; it appeared that the decision was made 16 when there was no answer to those questions. 17 Q. How concerning is that -- well, I should say: is 18 that concerning? 19 A. Yes, it is, because the lawyer in that case 20 identified the right questions. They were 21 absolutely the things to ask before you charge 22 someone with theft but they went ahead and 23 charged, as far as I could see, not knowing what 24 the answers were and that seems the wrong way 25 round to me. 61 1 Q. "In the case of Oyeteju Adedayo [you say at (b)] 2 the lawyer correctly identified dishonesty as 3 the likely defence, but didn't address what 4 evidence there was to prove that element of the 5 false accounting offences" -- 6 A. Yes. 7 Q. -- "that she [nonetheless] advised be 8 prosecuted." 9 A. Yes, and under the Code the lawyer is enjoined 10 to identify what likely defences are and what 11 evidence there is that addresses those defences, 12 and it wasn't just a defence, it's an element of 13 the offence that had to be proved and so, both 14 in assessing whether the elements of the offence 15 were proved on the evidence and whether any 16 defence that was raised was likely to succeed or 17 not, that was the right question to ask, but you 18 needed the answer to it before you could come to 19 a conclusion. 20 Q. Then, lastly, in the case of Josephine Hamilton, 21 she was, you say, charged with theft on the 22 basis of an investigation report which said, 23 "I was unable to find evidence of theft". 24 A. Yes, and so, if my understanding was correct and 25 the lawyer was looking at the investigating 62 1 report to come to their view on charge, in that 2 case, they were being told that the offence 3 couldn't be proved and then they charged it. 4 Q. Was that a concern? 5 A. Yes. 6 Q. The Inquiry has heard evidence from a range of 7 Investigators and prosecuting lawyers who have 8 told the Chairman that they believed at the time 9 that the evidence showed that Horizon was 10 reliable. If that was their state of mind -- 11 and putting aside the fact that we now know that 12 to have been incorrect -- would that make any 13 difference to your view as to the reasonableness 14 of the charging decisions? 15 A. It would almost certainly depend on the 16 particular case. If it were a case where 17 nothing had been said by the suspect to give 18 rise to any concern about the accuracy of the 19 Horizon data being relied on, and you -- you had 20 evidence -- as opposed to a belief, you had 21 evidence that the system was working properly, 22 then that would -- to charge on that basis, 23 providing everything else was made out, would 24 not be inappropriate. 25 But if you had a suspect who was raising 63 1 issues in relation to their post office and the 2 Horizon system in their post office, then you 3 the fact that you might have evidence that the 4 system generally was operating properly would 5 not absolve you of the need at least to consider 6 whether there may have been a problem at that 7 post office and its operation there, that needed 8 to be investigated because it may be that the 9 evidence, in relation to the system at that post 10 office, was not reliable, even if the system 11 more generally was. 12 Q. Can I summarise it that a generalised belief in 13 the mind of the lawyer, based on rumour, chatter 14 or messages from senior management, would in no 15 case be sufficient? 16 A. No. You would -- 17 Q. You needed evidence? 18 A. You needed evidence. Absolutely. 19 Q. The nature of that evidence might differ, is 20 that right, between a case where a subpostmaster 21 had raised Horizon reliability as an issue, as 22 against the case where they had not? 23 A. Yes. 24 Q. You draw these threads together over the page, 25 please, in paragraph 634, and it's the first 64 1 sentence. You say: 2 "As a result, to adopt the wording of the 3 Inquiry's question ..." 4 We had asked whether the charging decisions 5 were thorough and/or conscientious. You have 6 said that: 7 "... they were neither thorough nor 8 conscientious." 9 A. No, they were brief and, in some cases, 10 perfunctory. 11 Q. Can I turn to the second issue, please, which is 12 the test that was applied by the charging 13 lawyer, the reviewing lawyer? 14 A. Yes. 15 Q. You picked this up in paragraph 635, which is 16 further down the page. Thank you. You say: 17 "The test that was applied by the lawyer in 18 giving such advice varied." 19 As you said in your first report the Code 20 was not acknowledged as the basis for charge 21 until 2007 -- that's adopted or acknowledged by 22 the Post Office until 2007 -- when it was said 23 that that the sufficiency of evidence to 24 prosecute and the public interest would be 25 considered by reference to the Code. 65 1 You observed in your first report there was 2 little assistance provided in the Post Office 3 documents until 2013 as to how the Code was to 4 apply to the cases prosecuted by the Post 5 Office, in relation to either limb of the test. 6 Then you say this: 7 "In fact, on my review of these 20 cases 8 I confess to not having identified any 9 significant change in the way that charging 10 decisions appear to have been approached before 11 2007 and after, or as the Code for Crown 12 Prosecutors developed with new editions in 2004 13 and 2010." 14 A. Yes. 15 Q. Can we extend that to the 22 cases that you 16 looked at? 17 A. Yes. 18 Q. It didn't improve in the case of Janet Skinner 19 or Julian Wilson? 20 A. No, there continued to be no analysis of the 21 factors identified under the Code, particularly 22 in relation to the public interest, and there 23 was still cases, across the piece, where the 24 test was set out in ways that didn't reflect the 25 test. 66 1 Q. Can we go over the page to page 226, please, and 2 look at paragraph 637. You say: 3 "Even more concerning is the evidence in 4 a number of cases that [you] reviewed that the 5 test of a realistic prospects of a conviction 6 ... was not the test or the only test, being 7 applied ... 8 "In the case of Mr Blakey in 2005, whilst 9 the realist particular prospects of success for 10 charges of theft and false accounting were 11 asserted, they were accompanied by the 12 assessment that there was a low prospect of 13 success for theft, but a high prospect of 14 success for false accounting. 15 "In the case of [Mr Thomas] in 2006, 16 a different lawyer considered there to be 17 a realistic prospect of success for charges of 18 theft and false accounting, but this was 19 accompanied by the assessment that there was 20 a medium prospect of success. 21 "In the case of Peter Holmes in 2008, the 22 same medium prospects of success test was added 23 to the assessment of the realistic prospects of 24 conviction." 25 A. Just to add to that the case of Mrs Skinner, in 67 1 my Volume 2A, the same issue of medium prospects 2 of success was -- appeared there, as well. 3 Q. Would you agree that the evidential limb of the 4 Full Code Test is simply whether there's 5 a realistic prospect of conviction or not? 6 A. Yes. 7 Q. Is it right that some cases may pass the 8 evidential limb of the Full Code Test, ie there 9 is a greater than 50 per cent prospect of 10 a conviction but, nonetheless, have a relatively 11 low prospect of conviction? 12 A. In the sense that they're nearer 50 per cent 13 than not, yes. 14 Q. Some who have passed the 51 per cent threshold 15 may have a very high prospect of conviction, 16 ie near the 99 per cent? 17 A. Yes. 18 Q. For the purposes of the Code test, does it 19 matter whether it's 51 per cent or 99 per cent? 20 A. Not so far as the evidential test is concerned. 21 That may have an impact at the public interest 22 stage but not at the evidential stage. 23 Q. Why might it have an impact at the public 24 interest stage of the assessment? 25 A. Because if it is a borderline case and there are 68 1 other public interest considerations that might 2 tend against prosecution, then the fact that the 3 case is a weak one will add to the weight of 4 those public interest considerations. 5 Q. In a private prosecution where a prosecutor is 6 not obliged to prosecute, even if both the 7 evidential threshold is met and the public 8 interest test is met, might the relative 9 strength of the evidential case be a factor that 10 the prosecutor would take into account in 11 deciding to commit time and resources to 12 prosecuting? 13 A. Yes. 14 Q. Is that how you read these memoranda? 15 A. No, I confess I wasn't really very sure as to 16 how I should read these memoranda because there 17 were so few clues in their brevity as to how 18 I was meant to read them, and that it may have 19 also puzzled anyone who was receiving them at 20 the time as their advice. 21 On the one hand, taking the case of 22 Mr Blakey as an example, it was saying there's 23 a realistic prospect of conviction for theft but 24 a low prospect of success for theft and, on one 25 reading, those two things cancel each other out. 69 1 Q. Were you concerned that the gloss that was put 2 may have undermined or vitiated the assessment 3 that there was a realistic prospect of 4 a conviction for theft? 5 A. Yes, especially when considered against what 6 evidence there was of the elements of theft in 7 that case. If it were intended as a "You could 8 but I wouldn't if I were you", then it needed to 9 be spelt out in terms, rather than left to the 10 intuition or guesswork of someone else. If it 11 were seeking to address, "It's made out but you 12 may not want to prosecute because the prospects 13 of success are low and, therefore, the public 14 interest factors might outweigh it", then it 15 would have been helpful if it had said any of 16 that, but it didn't. 17 And so it just suggested to me a lack of 18 confidence in there being a realistic prospect 19 of conviction and, if that were the case, in 20 coming to a decision on an offence that would, 21 on the face of it, involve theft in breach of 22 trust by an employee of long record and previous 23 good character, then it really needed to set it 24 all out, rather than just say "low prospect", 25 whatever that meant. 70 1 Q. In any of the 22 cases that you looked at, did 2 you see any analysis of that kind? 3 A. No. Well, in fairness, in very few of the cases 4 did I see any reference to the public interest 5 at all. 6 Q. That's the third topic under this heading that 7 I was going to turn to, the public interest 8 test. Before we move to that, in paragraph 638 9 at the foot of the page there, you said that you 10 expressed a concern in your first report about 11 the lack of assistance for prosecutors as to the 12 tests to apply. 13 A. Yes. 14 Q. You referred, I think, to policy documents that 15 there was an incantation of the adherence to the 16 Code for Crown Prosecutors but nothing that 17 helped individuals to carry that into effect in 18 the context of the likely offences being 19 prosecuted by the Post Office. 20 A. Yes. 21 Q. You say that those examples would tend to show 22 that concern to be well founded. Are you 23 drawing a link there between the absence of Post 24 Office policy and guidance with decisions made 25 in practice? 71 1 A. Yes, so the concern I expressed last time was 2 that simply telling someone that there was 3 another thing that they could go away and look 4 at that would help them make their decisions did 5 put the onus on them to correctly understand 6 what that meant and what it required of them, 7 whereas if it was spelt out in terms for them in 8 the policy by the Post Office, then there was 9 less risk of them getting it wrong and a greater 10 chance of there being a consistent application 11 of the policy. 12 Just pausing there and going back to the 13 last topic, if you'll forgive me for a moment, 14 it's interesting that I found, when I was 15 preparing Volume 1, that there were more policy 16 documents on interviews and the appropriate way 17 of dealing with an interview than almost 18 anything else, and it's interesting that the 19 Investigators, generally speaking, complied with 20 their obligations under PACE in relation to 21 interviews when they had lots of policy help as 22 to how to do that. 23 Here, we have prosecutors who were just told 24 "Apply the Code for Crown Prosecutors", full 25 stop, and we have these charging advices where 72 1 the guidance given in the Code for Crown 2 Prosecutors, as to the things you need to 3 consider in relation to each stage of the test, 4 are not referred to and you have a number of 5 cases where the test that is set out in the Code 6 has a gloss on it that is not explained by the 7 Code or indeed anything else. 8 Q. Thank you. Can we then turn to the third 9 subtopic, then, the public interest. At 10 paragraph 639 at the foot of the page there, you 11 express concern that the charging memoranda 12 rarely addressed the public interest at all. 13 You said that they were disturbingly few in 14 number; is that right? 15 A. Yes. 16 Q. You say that the 2004 iteration of the Code 17 identified 17 public interest factors favouring 18 prosecution, nine to the contrary; and the 2010 19 iteration identified 19 factors favouring 20 prosecution -- then over the page -- and 11 to 21 the contrary. 22 I think in none of the 22 cases that you saw 23 was there any analysis of those features at all. 24 A. No. Indeed, in the majority of them, the words 25 "public" and "interest" together didn't appear 73 1 at all. 2 Q. So an entire absence of evidence that that had 3 been considered on the face of the papers? 4 A. Yes. 5 Q. You say that you recognise -- this is the third 6 line: 7 "... where a prosecutor was satisfied there 8 was a realistic prospect of proving there had 9 been theft by an employee in breach of trust, 10 that would be a strong factor in favour of there 11 being a public interest in prosecution. 12 However, the nuances to that test, by reference 13 to the list of factors for and against ... 14 underline that such an analysis may be 15 oversimplistic." 16 Can you explain why, please? 17 A. Clearly, where the evidence demonstrates that 18 an employee has stolen from their employer in 19 breach of trust, that is the type of situation 20 where it would often be in the public interest 21 to prosecute, but it would not necessarily 22 follow that that were the case if, for example, 23 it was clear that the person had been acting 24 under duress at the time that they had done 25 that, if they were ill, if they were old, if 74 1 this was an aberration in an otherwise 2 distinguished career. 3 These wouldn't necessarily trump the fact 4 that they had stolen from their employer but 5 they would be things that would be thought about 6 in deciding whether it was in the public 7 interest to prosecute or not and, here, there 8 was no analysis of that at all. 9 Q. In any of the cases that you looked at, had you 10 been satisfied that the evidential test had been 11 satisfied for a charge of theft by an employee 12 in breach of trust, were there, nonetheless, 13 factors which would have led you to conclude 14 that the public interest was not met or weren't 15 you in a position to say one way or the other? 16 A. I think because I struggled in many of these 17 cases to identify what the basis for concluding 18 that there was a realistic prospect of 19 conviction for theft, how they had got there, 20 I'm not sure that I got beyond that to consider 21 the public interest but, clearly, where you have 22 the suspect in interview, and this was then 23 relied on as the basis or for prosecuting them, 24 saying that this was not deliberate financial 25 benefit that was driving them: this was things 75 1 coming up in the system that they couldn't 2 explain and sought to cover up -- so more of 3 a mistake rather than premeditated -- that's the 4 kind of thing that the Code would tell you that 5 you need to take into account in the public 6 interest, weighing against prosecution, 7 potentially, the fact that someone has a good 8 record is a factor that is taken in account in 9 assessing the public interest weighing against 10 prosecution. 11 And, indeed, I appreciate it's a very 12 different document, but the audit guidance, the 13 approach to audit shortages that Contract 14 Managers were asked to consider with a whole 15 list of factors, including record, whether this 16 was a one-off, et cetera, whether there'd been 17 voluntary repayment, and so on, those are the 18 kind of things that I would have taken into 19 account if I'd been making one of these 20 decisions as weighing against the public 21 interest being in favour of prosecution, even if 22 I were satisfied that there was evidence of 23 theft. 24 Q. So even if you'd been able to -- suspending 25 disbelief for a moment, that there was evidence 76 1 of theft, you would nonetheless have found, or 2 potentially found, the factors that pointed 3 against, in the public interest, prosecution? 4 A. Yes, and where I would have ended up it's rather 5 difficult to say because it would have depended 6 on my assessment of what the evidence of theft 7 was. But, certainly, there would have been 8 factors going both ways that needed to be 9 thought about, not least because that's what the 10 Code told you to. 11 Q. You mentioned just now voluntary repayment and, 12 in your paragraph 639 here, in the last four 13 lines, you say "factors such as ... whether they 14 have made reparation" were relevant, albeit they 15 were rarely addressed. 16 So the extent to which a suspect had made 17 reparation, would you agree, was a relevant 18 factor to be considered in relation to the 19 prosecutorial assessment of the public interest 20 limb? 21 A. Yes. 22 Q. I think in the 2010 edition of the Code, amongst 23 the public interest factors that were listed, 24 was the extent to which the suspect had put 25 right the loss or harm -- 77 1 A. Yes. 2 Q. -- albeit it noted that a suspect should not 3 avoid prosecution solely because they had repaid 4 a loss? 5 A. No, absolutely. 6 Q. In the context of a case where there that 7 already been a finding, an assessment, there was 8 sufficient evidence to prosecute for 9 a dishonesty offence, and a prosecutor is 10 considering whether a prosecution is in the 11 public interest or whether a caution might be 12 sufficient and proportionate disposal, would the 13 fact that the suspect has repaid the amount be 14 a legitimate factor to take into consideration? 15 A. Yes, it could be, yes. 16 Q. You noted in the case study of Bailey that the 17 administering of a caution was made conditional 18 on the undertaking to make repayment when funds 19 became available? 20 A. Yes. 21 Q. Did you identify any legal basis for the 22 imposition of cautions by the Post Office? 23 A. There was a Post Office policy that dealt with 24 cautioning. 25 Q. Yes. I'm thinking about something higher level 78 1 than that, ie in primary or secondary 2 legislation? 3 A. I'm not sure I'm following you. 4 Q. Yes. In order to impose a caution, was some 5 legal basis setting up the machinery necessary 6 to do so or, if that wasn't an issue that you 7 looked at, then please do say? 8 A. I don't think it was. I'm sure there must be 9 but I can't think of it off the top of my head. 10 Q. Can you recall, as a result of the Criminal 11 Justice Act 2003, in the context of public 12 prosecutions, a mechanism, a vehicle, known as 13 conditional cautioning? 14 A. Yes, yes, and there was -- I know there was, for 15 example, CPS guidance in relation to how they 16 should approach that. 17 Q. Could such conditions attached to a conditional 18 caution include repayment of money, ie the 19 payment of compensation? 20 A. Yes. 21 Q. Did you examine whether that legislative scheme 22 was one that was available to the Post Office? 23 A. No. 24 Q. Thank you. 25 Can we turn to topic 5, please -- that can 79 1 come down from the screen -- which is reasonable 2 lines of inquiry and, in particular, how they 3 impacted on the disclosure that it was necessary 4 for the Post Office to give. 5 A. Yes. 6 Q. Back in your first report, the cross-reference 7 is paragraphs 366 to 370, you set out some 8 conclusions in relation to the requirement to 9 pursue all reasonable lines of inquiry. I'm 10 just going to remind you of them. 11 A. Thank you. 12 Q. Firstly, you said: 13 "In the present circumstances, the 14 requirement in the particular circumstances 15 involved consideration of whether the 16 investigation included whether accounting 17 shortfalls at Horizon terminals might lie with 18 the computer system, either as a matter of 19 course or where such a possibility was raised by 20 a suspect in interview." 21 In Volume 2 of your report, you identify 22 some failures on the part of the Post Office to 23 pursue such reasonable lines of inquiry and 24 resulting in disclosure failings. Can we look, 25 please, at page 219 of your second report, 80 1 starting at paragraph 624 -- 2 A. Yes. 3 Q. -- so page 219. Thank you. 4 It's the fourth line at the end there. You 5 say: 6 "In my review of these 20 cases there were, 7 consistently, failures by the Investigators to 8 identify and pursue a number of reasonable lines 9 of inquiry." 10 Can we expand that to in the 22 cases that 11 you reviewed, there were consistently failures 12 by the investigators to identify and pursue 13 a number of reasonable lines of inquiry? 14 A. Yes. 15 Q. So, in relation to the "consistently", do you 16 mean by that that it didn't depend on the 17 identity of the Investigator or the lawyer? 18 A. No. That's right. 19 Q. Do you mean consistently by reference to the 20 fact that it remained the case across the piece? 21 A. Yes. 22 Q. I think you tell us about that in the next 23 sentence: 24 "That remained the position, without any 25 obvious or significant change, after the 2010 81 1 amendment to the Post Office disclosure policy 2 document." 3 A. Yes, and that meant expressed the duty to pursue 4 all reasonable lines of inquiry, which had been 5 absent from the earlier version of the 6 disclosure policy. Even though it was 7 acknowledged in writing, it was not reflected in 8 the approach, as I saw it, in these cases. 9 Q. You tell us that: 10 "There were lines of inquiry common to these 11 cases, the relevance of which was repeatedly 12 engaged by the explanations advanced interview 13 by suspects and/or by the circumstances of the 14 shortfall being investigated, which were either 15 not pursued at all, were only pursued in 16 a limited or supervision manner, or were only 17 pursued as a result of requests ... by reviewing 18 lawyers or, much more commonly, by the defence. 19 The following are examples of this trend." 20 So, irrespective of the circumstances, 21 whether it was a defendant raising it, whether 22 the circumstances of the case demanded it, there 23 was a failure, in your view, to pursue 24 reasonable lines of inquiry. 25 A. Yes. 82 1 Q. You give three examples of what you call a trend 2 there: the absence of financial investigation; 3 the absence of investigation of training and 4 calls to helplines; and the absence of 5 investigations into the operations of Horizon. 6 A. Yes. 7 Q. I want to deal with each of those in turn, 8 please. The absence of investigation into 9 financial records or financial issues. You 10 address this in your paragraph 625. You tell us 11 that: 12 "... where a suspect denied in interview 13 that he or she had taken the money, and/or had 14 sought to make good unexplained losses 15 identified by [Horizon], it would be 16 a reasonable line of inquiry to obtain their 17 financial information to see if there is 18 evidence of unexplained monies appearing in bank 19 accounts, or payments out of those accounts to 20 cover shortfalls. Such evidence is of direct 21 relevance to the question of whether they have 22 appropriated ... money, for the purposes of 23 theft, and whether they have acted dishonestly 24 for both theft and false accounting." 25 So following the money, if I can call it 83 1 that, is relevant in a case of alleged theft, to 2 both the appropriation question and the 3 dishonesty question. 4 A. Yes. 5 Q. Can you explain why it's relevant to both the 6 appropriation question and the dishonesty 7 question? 8 A. It's relevant to appropriation for evidence that 9 they have appropriated the money, they have got 10 the money and taken the money. It's relevant to 11 dishonesty because, if the evidence of their 12 bank account, firstly, shows they haven't taken 13 the money and, secondly, shows that they were 14 not in a financial position where they needed to 15 take the money and, thirdly, where it was 16 appropriate, where it showed they had sought to 17 try to repay losses that had been identified by 18 the system in accordance with their contracts 19 until a point where, as they explained in their 20 interview, they couldn't afford to do it any 21 more, and that that in turn was borne out by 22 their bank accounts, then those factors would 23 all be relevant to the assessment of whether 24 they'd been dishonest or not, because they would 25 bear them out in their explanation of what had 84 1 happened, insofar as they understood it. 2 Q. What about the suggestion that it was always 3 open to the defendant to say, at trial, "Well, 4 look, there's no evidence adduced by the 5 prosecution of me having a speed boat on my 6 drive, or a holiday in the Bahamas or 7 unexplained entries into my bank account. The 8 prosecution hasn't shown any of those things". 9 A. They can say that. They can say that with a far 10 greater degree of emphasis, if the jury know 11 that the prosecution have looked and where they 12 have looked and what they have found or what 13 they haven't found. 14 Q. So is that why it's a reasonable line of inquiry 15 to pursue, amongst others? 16 A. It's one of the reasons but it's not the only 17 one. 18 Q. How serious an omission or failing did you 19 regard this? 20 A. In the first of the cases I considered, that of 21 Lisa Brennan, the lawyer absolutely rightly 22 asked the question of the Investigator as to 23 whether there was any evidence to show that she 24 had stolen the money before then going on to 25 charge her with theft anyway. But the fact that 85 1 that question was raised does underline how 2 fundamental a question it was to raise because, 3 if you are accusing someone of appropriating 4 money, then it is, it seems to me, incumbent 5 upon you to see whether they have or not. 6 And a good place to look for that, not the 7 only one, but a good place to look for that 8 would be to see if there's any evidence that 9 they've got it. 10 Q. Did you see any explanation in the papers that 11 you saw as to why this line of inquiry was not 12 pursued? 13 A. No. I think it was the case, if I remember 14 rightly, of Carl Page, which started out as 15 an investigation with other investigators, 16 I think the police and Customs were both 17 involved at one point, if I'm remembering the 18 case correctly, and the police investigation, in 19 relation to what was then an allegation of 20 a conspiracy in relation to funds from the Post 21 Office, did investigate whether they could find 22 any evidence of the money. 23 They couldn't and the police concluded that 24 they weren't going to take the matter any 25 further because they couldn't. That was not the 86 1 same approach taken on the same evidence by the 2 Post Office. 3 Q. In relation to a case of false accounting, what 4 relevance does the financial enquiry that you're 5 suggesting ought to have been made, potentially 6 have? 7 A. You would want to consider why the suspect had 8 done what they admitted doing, where they 9 admitted doing it, in relation to the accounting 10 records. And where they were explaining that 11 they had -- a loss had come up on the system 12 that they couldn't explain, that they knew they 13 were ultimately going to be reliable for, but it 14 was nothing to do with them, in the sense they 15 hadn't benefited from it, they couldn't afford 16 to pay it back, all of that would be addressed 17 by their financial records that would show 18 whether those things were correct or not. 19 And that would weigh both on whether the 20 elements of the offence were made out but also 21 on the public interest in that kind of case. 22 Q. In any of the 22 cases that you looked at, did 23 you see any written explanation in the papers as 24 to why that line of inquiry was not pursued? 25 A. No, and, in fairness, in some of the cases they 87 1 asked the suspect at the time of interview 2 whether they could have access to their bank 3 accounts, whenever they asked, they were told 4 that they could and, in some of those cases they 5 did obtain some financial material, but it was 6 never a very deep dive into the finances. 7 And that perhaps was illustrated in some of 8 the cases where confiscation followed on, that 9 a lot of the investigation of the suspect's 10 finances came about at the stage after they'd 11 been convicted, with a view to getting the money 12 from them, rather than earlier. 13 Q. Thank you. Can we turn to the second example 14 that you give of a reasonable line of inquiry 15 not being pursued, and that's paragraph 626. 16 You tell us about training and calls to 17 helplines: 18 "... Where a suspect described issues with 19 their operation of the Horizon system, by 20 reference to their training, and/or recounts 21 their attempts to get help at earlier stages 22 [you say] it would be reasonable to make 23 enquiries as to their level of training, and to 24 ascertain whether, how often and in what 25 circumstances they had contacted the relevant 88 1 helplines." 2 A. Yes. 3 Q. What issues might that go to in a prosecution? 4 A. Again, to take the analysis from the lawyer in 5 the case of Lisa Brennan, the other question 6 that she asked of the Investigator in that case 7 was whether this was deliberate or the result of 8 incompetence and, to put that in a slightly 9 different way, you would want to understand 10 whether that which was being done to the system 11 was being done because the person knew what they 12 were doing, or whether it was, at least, 13 possible that it was the result of them not 14 knowing what they were doing, and a way of 15 assessing that would be to identify how much 16 training they'd had to know what they were doing 17 or not. 18 And that would be all the more necessary, 19 where, as was often the case in these cases, the 20 person being interviewed said that they'd had 21 limited training or no particular training in 22 relation to Horizon. And, in either situation, 23 but certainly in the latter, it would be 24 a reasonable line of inquiry to ascertain what 25 training they'd had -- relevant training, they'd 89 1 had, as to whether this may be the result of 2 mistake, rather than dishonesty. 3 Q. So in both theft and false accounting 4 allegations, it went directly to the issue of 5 dishonesty? 6 A. Yes. 7 Q. Can I turn to the third reasonable line of 8 inquiry that you identify, and that's over the 9 page, please. 10 A. Sorry, just in relation to the second half of 11 paragraph 626 and the calls to helplines. 12 Again, the managing shortage at audit guideline 13 identified that, whether the person had earlier 14 been seeking help in relation to what had gone 15 wrong, was a relevant factor for a contract 16 manager in deciding what to do with the person 17 who -- where there was an issue on an audit. 18 It was identified as relevant in a number of 19 these cases, but only a few of them, to 20 understand whether the type of problems that had 21 been thrown up in -- as a description in 22 interview were ones that had been borne out at 23 the time. So where you had suspect saying, 24 "This problem kept arising when I was using the 25 system and I called to ask what I should do", if 90 1 you had evidence that they had called to ask 2 what they should do, it underlined the fact that 3 this was a problem that they were having to deal 4 with that they didn't understand, and that would 5 be relevant to an assessment of whether they 6 were acting dishonestly or not, whether this was 7 accidental or deliberate, and so on. 8 MR BEER: Thank you very much. I was going to move 9 on to the third subtopic here, but it's 1.00. 10 Sir, I wonder whether we might come back at 11 1.50, please. 12 SIR WYN WILLIAMS: All right, 1.50. 13 MR BEER: Thank you very much, sir. 14 (1.00 pm) 15 (The Short Adjournment) 16 (1.50 pm) 17 MR BEER: Good afternoon, sir. Can you continue to 18 see and hear me? 19 SIR WYN WILLIAMS: Yes, thank you. 20 MR BEER: Thank you very much. 21 Good afternoon, Mr Atkinson. 22 Can we turn to the third subtopic of the 23 fifth topic. The fifth topic was reasonable 24 lines of inquiry and the third subtopic was 25 Horizon and obtaining from Fujitsu data, in 91 1 particular ARQ data. You address this on 2 page 221 of your report at paragraph 628. 3 A. Yes. 4 Q. If we scroll down to 628, thank you, you say: 5 "Where a suspect described issues with the 6 Horizon system, unexplained losses, recurrent 7 error notices or simply asserted that they could 8 not explain what had happened when confronted 9 with a Horizon record of a shortfall, then 10 a reasonable line of inquiry is to identify what 11 the root cause of that shortfall is ... That 12 involved firstly the obtaining underlying data, 13 and its assessment for bugs, errors or issues." 14 You say that: 15 "The failure to undertake such enquiries was 16 almost routinely identified by the Court of 17 Appeal in Hamilton as a serious investigative 18 deficiency ... In these, and many other cases, 19 there was no enquiry for bugs or errors, and the 20 ARQ data was not obtained." 21 I think earlier in your report you say that, 22 in some cases, the failure to pursue this 23 reasonable line of inquiry was picked up by 24 a prosecution lawyer but the prosecution lawyer 25 did not wait for the outcome of the 92 1 investigative steps before positively finding or 2 advising that a prosecution should be pursued; 3 is that right? 4 A. Yes. 5 Q. That was paragraph 230 of your report. 6 Can I seek to exemplify some of those 7 conclusions in relation to specific case studies 8 and this will take a while but I'm going to 9 devote some time to it because of the 10 importance, potentially, of the issue. 11 In paragraphs 37 to 50 of your report, 12 I think that starts at page 21 -- if we scroll 13 down -- 37 onwards, you're addressing here the 14 investigation and charging decision in relation 15 to Lisa Brennan? 16 A. Yes. 17 Q. If we go forwards to 43 and 44 -- that's 18 paragraphs 43 and 44 -- on page 23, you say that 19 there was some engagement by the reviewing 20 lawyer with the identification and pursuit of 21 reasonable lines of inquiry? 22 A. Yes. 23 Q. Yes? You cross-refer us, in footnote 30, to 24 POL00047331. Then you tell us, over the page at 25 page 24, in paragraphs 45 and 46, that the 93 1 Investigator, and it's Mr Bradshaw again, 2 responded to what the reviewing lawyer had said 3 two weeks later, indicating that further 4 investigations had been conducted but that you 5 conclude, in 46, that there was no evidence that 6 any enquiries were made as to whether the 7 Horizon system on which the case depended was 8 operating correctly? 9 A. Yes. 10 Q. Can we just look, please, then at the two 11 documents that found those conclusions, to start 12 with POL00047331. 13 I think this is the memorandum that you were 14 referring to. 15 A. Yes. 16 Q. If we just scroll down a little bit further, we 17 can see what Ms Berridge, a senior lawyer in the 18 Criminal Law Division was advising, "I would 19 like to know", and then 1 to 10. 20 I think it's right, isn't it, that none of 21 those lines of inquiry identified by the 22 reviewing lawyer address expressly reviewing 23 Horizon data or obtaining ARQ data -- 24 A. No, that's right. 25 Q. -- identifying the potential for any bugs, 94 1 errors or defects in the Horizon system? 2 A. No. 3 Q. Nor contacting Fujitsu with regard to the 4 integrity of Horizon data? 5 A. No. 6 Q. Then, if we can look to the response, 7 POL00047335, Mr Bradshaw's reply, as you say, 8 about a fortnight later, "Your memo [Teresa 9 Berridge] refers", and then a series of 10 responses to the questions that she asked, all 11 numbered paragraph 1 but I think we can see, if 12 we compare them side by side that they are 13 responses to her paragraphs. 14 None of those lines of inquiry involved the 15 reviewing of Horizon data, including ARQ data -- 16 A. No. 17 Q. -- the identification of bugs, errors or defects 18 in the Horizon system, nor contact with Fujitsu 19 in relation to the integrity of Horizon data? 20 A. Yes, and the second paragraph down, in relation 21 to error notices, was perhaps as near as it got 22 to considering whether there had been issues 23 with the system that had been flagged up but 24 that was -- that's not the same thing as what 25 you've just been asking. 95 1 Q. No. Was there any evidence in Lisa Brennan's 2 case that Fujitsu were contacted for information 3 or provision of data that you saw? 4 A. No. 5 Q. I don't think any witnesses from Fujitsu were 6 ever called in Ms Brennan's trial; is that 7 right? 8 A. No. 9 Q. Can we move on, then, to your report, so back to 10 the main report, please, at page 30 and 11 paragraphs 63 to 69. You're here dealing with 12 David Yates' case, yes? 13 A. Yes. 14 Q. You note in paragraph 69, which is on page 32, 15 if we scroll down, there is no evidence that any 16 checks were made on the Horizon system for 17 evidence of faults or other errors that might 18 have impinged on the records that Mr Yates' 19 described in his interview, or otherwise? 20 A. No, that's right. That was a case where 21 Mr Yates was describing errors appearing on what 22 he was doing that he couldn't understand. 23 Q. The Court of Appeal concluded that there was 24 nothing to indicate that any ARQ data was 25 obtained at the time of the criminal proceedings 96 1 in Mr Yates' case? 2 A. No, that's right. 3 Q. That's Hamilton at paragraphs 330 and 331. Was 4 that observation or finding one that accorded 5 with your review of the papers? 6 A. Yes. 7 Q. Again, was there any evidence that you saw that 8 Fujitsu was ever contacted for the provision of 9 data or information in relation to Mr Yates' 10 case? 11 A. No. 12 Q. Was there any evidence that any witness 13 statements from Fujitsu employees were ever 14 prepared or provided to the Post Office prior to 15 Mr Yates' guilty plea? 16 A. No. 17 Q. Thank you. Can we move in to David Blakey's 18 case, please, and that's relevantly paragraph 87 19 onwards on page 38 of your report. You address 20 the investigation between paragraphs 87 and 94. 21 If we go to paragraph 94, which is on page 40, 22 at the foot of the page, you say: 23 "... despite Mr Blakey's account of issues 24 with its operation [that's Horizon's operation] 25 there were no enquiries made of Horizon data, or 97 1 the operation of the Horizon system, to see if 2 this could explain the issues that Mr Blakey 3 described. This significant limitation to 4 investigation was well identified by the Court 5 of Appeal", and you set out a citation from the 6 Court of Appeal's judgment in Hamilton at 7 paragraph 351. 8 A. Yes. 9 Q. So, again, was there any evidence that Fujitsu 10 was ever even contacted for information for 11 assistance or anything else in relation to 12 Mr Blakey's case? 13 A. No, and, in his case, he did identify that there 14 were discrepancies arising in the system that he 15 couldn't explain. He was clear that he was not 16 responsible for them; he was clear that his 17 staff were not responsible for them; he couldn't 18 explain how they had happened. He was told by 19 the Investigator that what he was saying sounded 20 ridiculous and no check was made to understand 21 what it was he was saying, to the extent that he 22 was able to describe it. 23 Q. I think this is a case in which there is no 24 evidence that any witness statements from 25 Fujitsu employees were ever prepared or provided 98 1 to Mr Blakey as part of the investigation? 2 A. No, not that I've seen, no. 3 Q. Can we look, please -- because this is a case in 4 which Jarnail Singh advised -- at POL00044820. 5 Can we see that this is a memorandum in the case 6 of the prosecution of Mr Blakey, if we go to the 7 second page, please, and just scroll down. 8 We'll see that it's signed off by Jarnail Singh. 9 A. Yes. 10 Q. If we go back to page 1, please, and if we just 11 scroll down so we can see the body of the text, 12 thank you. Mr Singh says: 13 "In my opinion there is sufficient evidence 14 to afford a realistic prospect of conviction of 15 Mr Blakey for an offence with theft with a low 16 prospect of success and for false accounting 17 with a high prospect of success." 18 We've addressed that issue this morning. 19 Is that kind of sentence that we see there 20 the bald statement of the sufficiency of 21 evidence that you saw in many charging memos? 22 A. They usually stopped after identifying the 23 offence. The low prospect of success part is 24 something that is less common. 25 Q. So a bald statement, in my submission, "There's 99 1 sufficient evidence to afford a realistic 2 prospect of conviction"? 3 A. Yes. 4 Q. Full stop? 5 A. Yes, and it's of note, in just taking this as 6 an example, that the lawyer here identified that 7 a reasonable line of inquiry would be to rule 8 out that others working in the branch had been 9 responsible, and so he asked for statements to 10 be taken from them. He didn't go on to consider 11 whether statements needed to be taken to deal 12 with whether it could have been a computer 13 error, rather than the responsibility of 14 Mr Blakey. 15 Q. So, in this case, would you agree that Mr Singh 16 did not advise or failed to advise as to 17 reviewing of Horizon data including ARQ data -- 18 A. Yes. 19 Q. -- and that he ought to have done? 20 A. Yes. 21 Q. Identifying the potential for any bugs, errors 22 or defects in the Horizon system, and that he 23 ought to have done? 24 A. Yes, and, even if Mr Singh didn't understand ARQ 25 data or what it was, one would have looked to 100 1 see, as a reasonable line of inquiry, that 2 checks ought to be made to understand that the 3 material that was being relied on -- namely the 4 Horizon records -- was reliable, given that the 5 defendant in his interview was raising issues 6 with the operation of the system. 7 Q. So, even though he, Mr Singh, might not have 8 broken it down as I have, a question to Fujitsu, 9 "Can you assure us as to the operation of the 10 integrity of the system, can you supply us with 11 ARQ data, can you identify whether there are any 12 bugs, errors or defects that might impinge on 13 the reliability of the data", you would expect, 14 am I understanding this correctly, some general 15 statement of request that was focused on the 16 reliability of the material that the -- 17 A. Yes. 18 Q. -- prosecution was relying on? 19 A. Yes, and how detailed it was would depend on how 20 much he knew and you might then expect to see 21 a discussion between Investigator and lawyer as 22 to what needed to be done about that and that 23 would be an entirely appropriate dialogue to 24 have. 25 Q. Did you see any of that healthy dialogue between 101 1 lawyer and Investigator on Horizon reliability 2 in any of the cases? 3 A. No. 4 Q. Can we turn, please, to page 46 of your report. 5 Between paragraphs 109 and 115 of your report 6 you address the investigation of Tahir Mahmood? 7 A. Yes. 8 Q. In paragraph 114, which is on page 48, you note 9 that there is no evidence or awareness of issues 10 with Horizon in the investigation? 11 A. No. The only place that questions of any errors 12 in Horizon arose was in the interviews of 13 Mr Mahmood, where he described, as best he 14 could, the problems that he was encountering and 15 what they had led to. 16 Q. The Court of Appeal observed in Hamilton, it was 17 paragraph 322 of the court's judgment, that: 18 "There is nothing of any ARQ data to 19 indicate that any ARQ data was obtained at the 20 time of the criminal proceedings", in 21 Mr Mahmood's case. 22 Did that accord with your examination of the 23 materials? 24 A. Yes. 25 Q. Was there any evidence that Fujitsu was 102 1 contacted for information or assistance in 2 relation to Mr Mahmood's case? 3 A. No. 4 Q. Was there any evidence that any witness 5 statements from Fujitsu employees were deployed 6 in Mr Mahmood's case? 7 A. No. 8 Q. Can we look at how the reviewing lawyer 9 approached it, POL0052884. We can see, if we go 10 to the second page, if we scroll down -- sorry 11 third page -- this is signed by Juliet 12 McFarlane, a principal lawyer in the Criminal 13 Law Division? 14 A. Yes. 15 Q. If we go back to the first page, we will see 16 it's dated 27 May 2005. We can see how she 17 advises: 18 "In my opinion the evidence is sufficient to 19 afford a realistic prospect of conviction of the 20 above named on the charges set out on the 21 attached Schedule." 22 Is that the more common formulation? 23 A. Yes. 24 Q. I think, without reading this in detail, would 25 you agree that Ms McFarlane did not advise as to 103 1 any reasonable lines of inquiry that required to 2 be pursued, relating to reviewing ARQ data or 3 any other Horizon data -- 4 A. No. 5 Q. -- identifying the potential for any errors, 6 bugs or defects in the system, or contacting 7 Fujitsu in relation to the reliability or 8 integrity of Horizon data upon which reliance 9 was to be placed? 10 A. She took account of the fact that the error 11 notices that have been obtained didn't accord 12 with this all being the result of a mistake. 13 She then went on to consider that theft was not 14 to be pursued because there were other 15 candidates who could have carried out the theft 16 and to rely, instead, on false accounting on the 17 basis of a covering up of losses in the records, 18 whether they'd been caused by Mr Mahmood or not, 19 without having actually carried out or advising 20 that there should be carried out any checks 21 either, as to where the money that gone or as to 22 what had happened on the computer. 23 Q. Was that adequate or not adequate? 24 A. No. It wasn't adequate. 25 Q. Thank you. 104 1 Can we turn to the case of Carl Page, 2 please, that's page 59 of your report. Between 3 paragraphs 149 and 152 of your report, you look 4 at Horizon issues in relation to the prosecution 5 of Mr Page, and you note that, in the course of 6 the retrial, a defence expert report from 7 Timothy Taylor of KPMG was served on behalf of 8 the defence, which raised the prospect that the 9 £282,000 deficiency "could in practice be the 10 result of unidentified errors or differences in 11 Horizon" and that the prosecution case depended 12 on Horizon "working correctly throughout the 13 indictment period". 14 Yes? 15 A. Yes. 16 Q. In the light of that defence expert report 17 suggesting that the £282,000 could, in practice, 18 be the result of unidentified errors or 19 deficiencies in Horizon, was there any evidence 20 that the Post Office sought to investigate the 21 existence of any such unidentified errors or 22 deficiencies? 23 A. No, and the -- taking on board all the need to 24 be careful about material generated after the 25 event, the Second Sight review didn't point to 105 1 any which accorded with the lack of any evidence 2 of contemporaneous material in that regard. 3 Q. The Court of Appeal observed, it's paragraph 284 4 of the Court of Appeal's judgment, that there is 5 nothing in the Post Office case papers to 6 indicate that any ARQ data was obtained at the 7 time of the criminal proceedings in Mr Page's 8 case, whether at the initial trial or upon 9 retrial. Did that observation accord with your 10 examination of the case papers? 11 A. Yes. 12 Q. Can we turn, please, to paragraph 223 onwards in 13 your report, that's page 85, where you're 14 addressing the investigation in relation to 15 Suzanne Palmer. This is paragraph 223 to 227. 16 In relation to that case, Ms Palmer's case, did 17 you see any evidence that Fujitsu was ever 18 contacted for information or evidence in 19 relation to Ms Palmer's case? 20 A. No. 21 Q. Was there any evidence that any witness 22 statements from Fujitsu employees were ever 23 served on Ms Palmer? 24 A. No. 25 Q. Therefore none called at trial. Can we look, 106 1 please, at what the reviewing lawyer advised at 2 POL00052990. 10 March 2006, in the case of 3 Suzanne Lesley Palmer. If we go to the second 4 page, please, we'll see this is one of 5 Mr Jarnail Singh's charging advices. 6 A. Yes. 7 Q. Then back to page 1: 8 "I am of the opinion there is sufficient 9 evidence to afford a realistic prospect of 10 conviction of Ms Palmer for the offences of 11 false accounting." 12 Then, if you look at the remainder of the 13 page, and then over the page, is it right that 14 Mr Singh did not advise when he ought to as to 15 any further reasonable lines of inquiry, 16 including reviewing Horizon data -- 17 A. Yes. 18 Q. -- identifying the potential for bugs, errors or 19 defects in the Horizon system -- 20 A. Yes. 21 Q. -- and, lastly, contact with Fujitsu regarding 22 Horizon integrity? 23 A. Yes. On the contrary, he said that there was 24 nothing further that needed to be done. 25 Q. We can see that, if we go back a page, please -- 107 1 if we scroll down -- the line "No further 2 statements need to be obtained at this stage". 3 A. Yes. 4 Q. But then, conditionally, if there's an election 5 for trial or refusal of jurisdiction, or if 6 a not guilty plea is entered, then the following 7 statements are necessary, but none of those 8 address the three points that I've asked you 9 about? 10 A. No, and the statements that are listed there are 11 all tidying up the evidence for presentation to 12 a jury. I don't read number 4 there, "Any other 13 statements the Officers consider relevant", to 14 be identifying to an Investigator that they 15 needed to go and obtain ARQ data. 16 Q. Page 114, please -- sorry, my mistake. 17 Yes, page 114 of your report, please. 18 You're dealing here, between paragraphs 312 and 19 320, with the investigation concerning Mr Peter 20 Holmes? 21 A. Yes. 22 Q. In paragraph 316, please, which is on page 116, 23 you're addressing, in 316, the interview and you 24 summarise what happened in the course of the 25 interview. 108 1 A. Yes. 2 Q. He asserted, second line, that: 3 "... shortages could be an issue with 4 Horizon or with malfunctioning equipment." 5 Then fourth line: 6 "... believed that the shortfall on each 7 occasion was something that the computer had 8 done, or failed to do." 9 A. Yes. 10 Q. Seventh line: 11 "He also raised specifically issues with the 12 Horizon system for three months about nine 13 months previously." 14 A. Yes. 15 Q. Tenth line: 16 "He denied, emphatically, stealing the money 17 ..." 18 A. Yes. 19 Q. I think, if we look, at POL00052178, we can see 20 his defence statement, "Name of Accused: Peter 21 Holmes", his solicitors and the date of it. 22 Then if we scroll down to what his defence 23 statement said, second sentence: 24 "I believe that either the Horizon system 25 has on occasion been at fault and ultimately 109 1 created the shortfall by creating incorrect 2 entries." 3 Would you agree that, both in interview and 4 in his defence statement, Mr Holmes was squarely 5 raising the operation of the Horizon system as 6 being responsible for the shortfalls? 7 A. Absolutely. 8 Q. Is there any evidence that Fujitsu was ever 9 contacted for information or evidence in 10 relation to Mr Holmes' case? 11 A. It's not absolutely clear. There was a degree 12 of Horizon material that the investigation did 13 obtain, and transaction logs, for example, 14 although it wasn't clear where those had come 15 from and they may have come from the branch, 16 rather than from anywhere else. And the 17 Investigator's report, there were two versions 18 of it in this case, and the updated version made 19 reference to faulty equipment and asserted that 20 "This has been checked and the allegations are 21 unfounded". It wasn't clear from the report how 22 they'd been checked or with whom. 23 So I can't say positively that nothing was 24 done in terms of contacting Fujitsu. What I can 25 say is I didn't see any the evidence of the 110 1 results of any such contact or, indeed, any 2 document that set out such contact. 3 Q. Let's look at this in more detail then because 4 you're rightly pointing out that there is some 5 mention of the possible pursuit of an enquiry as 6 a result of something mentioned in interview -- 7 A. Yes. 8 Q. -- or defence statement. Can we see how that 9 came about and can we start please with whether 10 it was the reviewing lawyer that caused this 11 enquiry to be made. POL00046488. 12 That's the wrong document. That's 13 Ms Rudkin's. 14 A. Yes. 15 Q. There's obviously a ghost in the machine at my 16 end here. I'll skip that and come back in 17 a moment, if we can. If we go to your report at 18 page 117. 19 A. The document might be POL00050912, that's the 20 reference I give in the report for the charging 21 decision but I was grappling with a lot of POL 22 references. 23 Q. Thank you. POL00050912. Thank you. 24 This is the memorandum in the case of 25 Mr Holmes, dated 16 February 2009. If we look 111 1 over the page, please, and scroll down, and 2 page 3. It's a Juliet McFarlane case. 3 A. Yes. 4 Q. If we go back to the beginning, please. She 5 advises: 6 "In my opinion the evidence is sufficient to 7 afford a realistic prospect of conviction ... on 8 the charges set out in the Schedule. There is 9 a medium prospect of success." 10 I suppose the second paragraph might be 11 a nod to the public interest test, might it? 12 A. Yes. Though not an analysis of it. 13 Q. So it doesn't mention the words "public 14 interest"? 15 A. No. 16 Q. Nor does it explain how that position has been 17 arrived at? 18 A. No. 19 Q. "No further statements need to be attained at 20 this stage", in the sixth paragraph. 21 Then, if we scroll down, if those conditions 22 are met, the following statements should be 23 obtained. 24 Then, over the page. Is there anything in 25 there that suggests that the reviewing lawyer 112 1 advised as to a reasonable line of inquiry 2 relating to the operation of the Horizon system? 3 A. No. 4 Q. Can we go back to your report, please, and look 5 at the case of Lynette Hutchings. That is 6 page 152. At paragraph 423 at the foot of 7 page 152, you tell us that: 8 "... Jarnail Singh ... advised that it was 9 likely that the defence would assert that 10 Horizon was not working, and therefore 'it would 11 be more prudent for the officer to complete his 12 enquiries and further investigations and produce 13 the evidence" ... listed in the advice 14 [including] 'evidence rebutting the allegations 15 and criticisms made in the pre-prepared 16 statement' and 'statements dealing with the 17 integrity of the Horizon and call logs to the 18 Horizon Support desks'." 19 Then you say: 20 "It is of note that it identified approach 21 was to rebut the assertions ... not to 22 investigate whether or not those assertions 23 might be true." 24 A. Yes. 25 Q. Are you focusing on the formulation of the 113 1 request -- 2 A. Yes. 3 Q. -- the phraseology used? 4 A. Yes. 5 Q. What do you take from that? 6 A. Well, in terms of identifying a reasonable line 7 of inquiry, that's a line of inquiry that leads 8 to or from, that implicates or exculpates, and 9 this was effectively saying "The defendant said 10 he was encountering problems on the system, we 11 need to disprove that". And that's not -- I'm 12 not saying that it was wrong to say we need to 13 pursue that, because clearly they did need to -- 14 that was a reasonable line of inquiry to pursue, 15 but I found the way it was put, perhaps less 16 than helpful. 17 Q. In paragraph 425 of your report, further down 18 the page, please, you tell us that on 4 January 19 2012 Martin Smith of Cartwright King produced 20 a charging advice recommending that Ms Hutchings 21 be charged? 22 A. Yes. 23 Q. If we can look at that, please, POL00057341, and 24 if we go to the last page, please, we can see 25 this is produced by Martin Smith of Cartwright 114 1 King on 4 January 2012. Then back to the 2 beginning. If we just scroll through and look 3 at what Mr Smith says. The audit, in his first 4 paragraph: 5 "... very strong evidence to support the 6 allegation that Mrs Hutchings had inflated the 7 amount of cash held in the branch, usually by 8 inflating the figure for cash held in £50 9 notes." 10 Third paragraph, if we scroll down: 11 "In interview ... a prepared statement was 12 read out ... she admitted to altering the cash 13 declarations and suggested she had done so only 14 since the migration to Horizon Online ..." 15 Over the page: 16 "Furthermore she said that at the time of 17 migration, all accounts balanced which was 18 clearly untrue. She also gave problems which 19 she alleged she had experienced with the Horizon 20 system ... Whilst Mrs Hutchings has denied 21 stealing any money, she has not put forwards any 22 explanation as to how the deficit has arisen." 23 Then further down, "Defence Case": 24 "It is not known whether [she] will admit or 25 deny wrongdoing ... However given the evidence 115 1 and the admissions ... it is difficult to see 2 how she could successfully argue that her 3 actions had not been dishonest and that she had 4 not the intention to make a gain ... 5 "I have seen the [memorandum] of 17 June 6 2011 ..." 7 That's the one in which Mr Singh has advised 8 Horizon related integrity issues should be 9 pursued. 10 A. Yes. 11 Q. He says: 12 "[I have seen] numerous statements have ... 13 been taken. No further statements need to be 14 taken at the present time", and that she should 15 be charged, in the last paragraph on the page. 16 A. Yes. 17 Q. Would you agree that the statements which 18 Mr Singh had recommended be obtained were not, 19 in fact obtained, going to the Horizon integrity 20 issue? 21 A. Not that I saw. 22 Q. Mr Smith in this memorandum dismisses 23 Ms Hutchings' allegations concerning the Horizon 24 system, which he says they "do not appear to be 25 of any reliance"? 116 1 A. Yes. 2 Q. Is that a view with which you agreed or 3 disagreed? 4 A. Disagreed. 5 Q. By reference to the fact that the lines of 6 inquiry that Mr Singh had recommended be pursued 7 and what was said in this charging memorandum, 8 was it appropriate or inappropriate for 9 a charging decision to be taken in Ms Hutchings' 10 case without the Post Office having, at that 11 stage, obtained statements "dealing with the 12 integrity of Horizon"? 13 A. One of the things that she had said in her 14 prepared statement was that she had not been 15 responsible for the loss, that the loss had 16 arisen on the system and that what she had been 17 doing was to adjust the figures in the hope that 18 it would balance out in itself in due course, 19 that the system that had created a problem would 20 sort the problem out, and that clearly was 21 relevant to the assessment of her honesty or 22 otherwise, which was dismissed by Mr Smith in 23 his advice. 24 And so just testing that alone required 25 an understanding of whether these were 117 1 regularities as a result of the system and the 2 way it was operating or not. But, beyond that, 3 there was the wider need to test the reliability 4 of the evidence being relied on rather than to 5 proceed from the basis that Mr Smith did, that 6 it was reliable, without more. 7 Q. Thank you. Can we turn to Joan Bailey's case, 8 please. This is page 159 of your report. 9 Between, if we scroll down, paragraphs 444 10 and 452, you address the investigation that was 11 undertaken in the case of Joan Bailey. 12 A. Yes. 13 Q. Was there any evidence that Fujitsu was 14 contacted for information or assistance in 15 relation to Joan Bailey's case? 16 A. No. 17 Q. Were there any witness statements obtained from 18 Fujitsu served on Mrs Bailey before she accepted 19 a caution? 20 A. No, and it's right to say in her case she, in 21 interview, did raise the question of, and her 22 belief that there were, problems in the Horizon 23 system that were giving rise to issues. The 24 Investigator, Mr Bradshaw again, in her first 25 interview reassured her that the Horizon system 118 1 was -- did not have glitches and, in her second 2 interview, told her that any issues with Horizon 3 were down to carelessness or incompetence by the 4 operator, and then carried out no investigations 5 that I could identify to test whether what she 6 was doing her best to describe might be an error 7 in the system. 8 Q. Thank you. Can we move on to page 170 of your 9 report please. From paragraphs 483 -- in fact 10 it's over the page, thank you -- to 488 of your 11 report you address the investigation undertaken 12 in Ms Allison Henderson's case? 13 A. Yes. 14 Q. The Court of Appeal observed in the Hamilton 15 appeals -- their paragraph 158 -- that there was 16 nothing to suggest that any ARQ data was 17 obtained in Ms Henderson's case. Did that 18 observation accord with your examination of the 19 case papers? 20 A. Yes, it's right to note that this was one of the 21 cases where I didn't have a report from the 22 Investigator but, on what I did have, I didn't 23 see anything that rang contrary to the finding 24 the Court of Appeal had reached. 25 Q. Was there any evidence that you saw that Fujitsu 119 1 was contacted for information or evidence in 2 relation to Ms Henderson's case? 3 A. No. 4 Q. Can we look, please, at the reviewing lawyer's 5 advice, POL00047159. 21 May 2010, Allison 6 Henderson. If we go over the page, please, and 7 scroll down, we can see that it's the Head of 8 Criminal Law, Mr Wilson's, advice memo? 9 A. Yes. 10 Q. Back to page 1, please. We can see the 11 formulation that he uses: 12 "In my opinion the evidence is sufficient to 13 afford a realistic prospect of conviction of the 14 above named on a charge of theft as set out on 15 the attached Schedule. I have not drafted 16 a commencement date in the theft as I am not 17 clear when we are saying that the losses 18 started. Can you fill in such a date and 19 explain to me your rationale for relying on this 20 particular date. 21 "... it does not seem appropriate to 22 consider false accounting charges. It would be 23 helpful if we could obtain some evidence to 24 refute the possibility that the money she 25 alleges must have gone missing was not, in fact, 120 1 in the account during the last accounting period 2 prior to the audit." 3 Do you understand what that means? 4 A. Not altogether, no. 5 Q. In any event, in this advice -- we can scroll 6 down the rest of the page and look over to 7 page 2 -- do you agree that Mr Wilson did not 8 advise as to a line of inquiry existing 9 concerning the review of data, including ARQ 10 data -- 11 A. No, that's right. 12 Q. -- the potential for bugs, errors or defects in 13 Horizon to be investigated or, indeed, any 14 contact with Fujitsu in relation to the 15 integrity of Horizon data? 16 A. I have a vague memory that there was 17 a suggestion at one stage in Ms Henderson's case 18 that they might, if the matter went to trial, 19 need to get a statement from Mr Jenkins, who 20 they had started to get statements from by then, 21 but it never got that far. But, certainly, in 22 the time that this was being investigated, 23 I didn't see any issue with -- any steps being 24 taken to get such ARQ data, for example, or 25 contacting Fujitsu more generally. 121 1 Q. If we look at page 172 of your report, you 2 address the interview in paragraph 484. In 485, 3 you say: 4 "The interview was ... combative and was 5 indicative of a disciplinary approach as opposed 6 to an investigative [approach]." 7 Just whilst we're on that, taking it out of 8 turn, what do you mean by "it was indicative of 9 an disciplinary approach"? 10 A. It was -- it read as if this was a case of prove 11 a misconduct that Ms Henderson was being asked 12 to justify, rather than an investigation with 13 her of how it was that losses identified by 14 Horizon might have arisen, and I -- certainly 15 she felt it to be that because she said so, that 16 she felt that the investigators had drawn their 17 own conclusions before they'd spoken to her. 18 Q. You tell us in 486 that bank statements were 19 obtained. Can you recall what the reason was 20 for the obtaining of bank statements in this 21 case, as opposed to others? 22 A. That, I think, was to see whether there was any 23 evidence that the money had gone to her, and 24 there wasn't. 25 Q. You say in the third line: 122 1 "It is not clear whether there were 2 enquiries as to calls to the Horizon Helpdesk or 3 the NBSC as would be a standard line of inquiry 4 in these cases." 5 Do you mean by that "as should be a standard 6 line of inquiry"? 7 A. Yes, yes. 8 Q. "There was no evidence of awareness of Horizon 9 issues in the course of the investigation, and 10 there does not appear to be any context on the 11 accuracy of Horizon information relied on" -- 12 A. No. 13 Q. -- "or checks as to whether there had been any 14 faults." 15 A. The Court of Appeal observed that they couldn't 16 see any suggestion that ARQ data had been 17 obtained. 18 Q. Thank you. Can we move on, please, to the case 19 of Khayyam Ishaq, which is page 211 of your 20 report. If we scroll down to "Disclosure", 21 turning to a slightly different issue here, 22 which is where there has been some 23 investigation. Because we've looked at a slew 24 of cases now where there has not, I want to look 25 at some cases where there has been 123 1 an investigation of sorts. 2 A. Yes. 3 Q. Between paragraphs 602 and 606, you tell us 4 about the approach that was taken by a lawyer at 5 Cartwright King, called Rachael Panter, to 6 disclosure in the case. Is this a fair summary: 7 that she advised that it was sufficient for 8 Mr Jenkins to address Horizon integrity issues 9 on a generic basis because the subpostmaster had 10 not raised a specific issue with the Horizon 11 system itself; they've all been generic to date? 12 A. Yes. 13 Q. If we look at that underlying document, please, 14 POL00059402 and, if we go to the last page in 15 this chain, please, we can see this email is 16 signed off -- if we scroll up, please -- by 17 Rachael Panter -- if we scroll up, keep going. 18 It's an email to Mr Jenkins of 16 November 2012, 19 and she says: 20 "As you may already be aware, your expert 21 report detailing the reliability of the Horizon 22 system has been served as evidence in a number 23 of Post Office cases that are at various stages 24 of the court process, most of which are listed 25 for trial in the early part of next year. 124 1 "It should be noted that to date, most, if 2 not all cases raising the Horizon system as 3 an issue, have been unable/not willing to 4 particularise what specific issues that they 5 have with the system, and how that shapes the 6 nature of their defence. 7 "As we already have your detailed report, 8 I would like to serve it in each case listed 9 below. All of the following cases have raised 10 issues with the reliability of the Horizon 11 system." 12 Then Khayyam Ishaq's is listed: 13 "I would like to serve your report in the 14 remaining cases and have attached a case summary 15 of each case listed above so that you may 16 familiarise yourself with the facts of each 17 case. 18 "I ... stress that I do not anticipate that 19 all of the above cases will reach trial ... 20 could you read the case summaries attached, and 21 send 5 original signed and dated copies of your 22 report to me as soon as possible." 23 Then some other material. 24 Can we go back to your report, please, at 25 page 213. At page 213, you tell us at 125 1 paragraph 605 that Mr Jenkins replied asking if 2 his existing report from Patel could not be 3 used, raising the question of whether contact 4 with him should be by the Post Office rather 5 than their solicitors: 6 "Ms Panter commented to a colleague at 7 Cartwright King, 'I can clarify with Gareth that 8 it doesn't matter that specific cases are not 9 quoted in his report as not one of them has 10 raised a specific issue with the Horizon system 11 itself, they have all been generic to date'." 12 Then you offer your view in paragraph 606 as 13 to this. 14 A. Yes. 15 Q. You say: 16 "As an approach to disclosure, the obvious 17 difficulty with it is that it makes disclosure 18 dependent on a defendant understanding what has 19 gone wrong, what issue with the Horizon system 20 had led to according imbalances, when a reason 21 for the defendant seeking to cover unexplained 22 losses was that they did not understand why they 23 were happening." 24 Can you explain what you mean there, please? 25 A. So the approach that Ms Panter adopted was that 126 1 it wasn't necessary for Mr Jenkins to address 2 the data in a particular case, such as that as 3 of Mr Ishaq, because defendants, such as 4 Mr Ishaq, had not spelt out what it was that had 5 caused the problem on Horizon in their case, why 6 the losses had been shown on the system in their 7 case. 8 But that, of course, required the defendant 9 to understand why the errors had arisen in their 10 case and, certainly by this point, at the end of 11 2012, it had been repeatedly clear from repeated 12 suspects that they didn't understand what the 13 problem was, they just knew there was a problem 14 and they described what they had encountered in 15 their interview, as Mr Ishaq did here. 16 And so, rather than testing the reliability 17 of the evidence that the case was founded on, 18 and where they had someone who could do that 19 testing for them in the shape of Mr Jenkins, 20 asking Mr Jenkins to test it, to understand 21 whether the system had been working properly in 22 this branch at this time, instead, because the 23 postmaster couldn't give chapter and verse as to 24 what was causing the problem, it was deemed 25 sufficient to have a generic report that simply 127 1 asserted that the system was all right. 2 Q. You make that point that you've just made there 3 in the last two sentences of paragraph 606: 4 "As his approach in the case of Gareth Allen 5 shows, it was possible for Mr Jenkins to access 6 Horizon data for a particular post office to 7 check if there were any issues. The approach 8 identified by Ms Panter did not facilitate such 9 an approach, and yet it was that approach that 10 was required." 11 Would you agree that, in addition to having 12 the effect of restricting the analysis which 13 Mr Jenkins might undertake, the effect of the 14 approach that Ms Panter adopted to disclosure 15 was that, in many of the cases you have 16 reviewed, including this one, Fujitsu were never 17 asked to analyse the transaction data at all? 18 A. That's right, and the case of Mr Allen that 19 I referred to there was a case where Mr Jenkins 20 has said that it was possible to look at ARQ 21 data in relation to Mr Allen and see what it 22 showed. So it was made clear to him, in his 23 discussions with the lawyers who were dealing 24 with these cases, that this was something that 25 could be done. 128 1 Q. The Court of Appeal observed that ARQ data was 2 provided for the indictment period to the 3 defence on the 26 October 2012, shortly before 4 trial was due, but that it was unclear what, if 5 any, analysis was performed on it and that there 6 was no examination of that data for bugs, errors 7 or defects, or indeed for evidence of theft? 8 A. Yes. 9 Q. Did that accord with your own observations -- 10 A. Yes. 11 Q. -- of the case papers here? 12 A. And as other cases where experts were instructed 13 on behalf of the defence demonstrated, the 14 difficulty of just giving a collection of data 15 to the defence is that, unless they had the 16 necessary expert understanding of how Horizon 17 worked, it was a very large job for them to 18 analyse, to understand, even begin to understand 19 how the system worked, let alone how it wasn't 20 working, whereas someone with knowledge of the 21 system had that advantage, and a subpostmaster 22 I wouldn't include on what I read in that 23 category to understand the technical aspects of 24 the Horizon system. 25 Q. Just going back to paragraph 532 of your report, 129 1 as you mentioned Mr Allen's case, it's on 2 page 188, you tell us in this context that the 3 failure to examine detailed data logs in order 4 to investigate the specific issue was, to quote 5 you, "an unfortunate failure in the evidence" 6 but that appeared to be a Post Office decision; 7 would that be right? 8 A. Yes. Yes, he'd -- he, meaning Mr Jenkins, had 9 indicated that it could be done but he wasn't 10 asked to do it. 11 Q. So Mr Jenkins was offering to examine the data, 12 in addition to making a general statement about 13 Horizon reliability? 14 A. Yes. 15 Q. But the Investigator and the prosecutor decided 16 that the general statement was enough; is that 17 right? 18 A. Yes. 19 Q. Would the course of action that Mr Jenkins was 20 offering to undertake have been more in line 21 with the Post Office's duties as a prosecutor, 22 both in terms of reasonable lines of inquiry and 23 disclosure? 24 A. Yes. 25 Q. Did you ascertain why it was that the Post 130 1 Office Investigator and/or lawyer decided that 2 it was sufficient to serve a general statement 3 in place of Mr Jenkins examining the underlying 4 data? 5 A. There were various reasons given in various 6 different cases. Insofar as Mr Allen's case is 7 concerned, I'm not sure that I did see a reason 8 beyond the position which had already been 9 stated, that it was for the defendant to 10 identify what had gone wrong and that they would 11 then look at it, rather than for them to 12 investigate whether the system had been reliable 13 or not. 14 What was interesting, just while we're on 15 this paragraph and in this case, is that another 16 lawyer involved, Andrew Bolc, did appear here to 17 be noting that the retrieval of the data from 18 Fujitsu for these purposes would not cost the 19 Post Office anything and, in other cases, cost 20 was given as a reason for not doing things, but 21 that -- what Mr Bolc, was saying here did tend 22 to suggest that that wasn't right. 23 Q. It wasn't operative, at least in this case? 24 A. Yes. 25 Q. What view, if any, did you take of the fact that 131 1 a witness was suggesting the possibility of 2 a line of inquiry being pursued, identifying 3 that examination of the underlying data, the 4 logs, might be the appropriate course of action, 5 but the Investigator and the prosecution were 6 saying not to? 7 A. Well, it goes slightly further than that. This 8 is the expert, as they perceived him to be, that 9 they had gone to for his expert knowledge of the 10 system, saying to them that this would be the 11 appropriate way forwarded and for the 12 Investigator and lawyer to say no to that which 13 their expert was telling them would be the 14 logical next thing to do, which, in any event, 15 it should have been clear to them needed to be 16 done. 17 Q. Was that of concern? 18 A. Yes. 19 Q. In that paragraph, 532, and indeed elsewhere in 20 your report -- other paragraphs include 545 and 21 663 -- you are critical of the use of so-called 22 generic statements concerning the reliability of 23 Horizon being presented as expert evidence, and 24 as a collateral point placing an obligation on 25 a defendant to specify particular issues with 132 1 Horizon before any further investigation of 2 those issues would take place? 3 A. Yes. 4 Q. Have I summarised -- 5 A. Yes. 6 Q. -- that concern correctly? 7 Did you form a view who was controlling this 8 exercise, the extent to which specific enquiries 9 were made: on the one hand, the Post Office, 10 and, on the other, Fujitsu, including 11 Mr Jenkins? 12 A. Insofar as I could see from what I had, there 13 was this instance here of Mr Jenkins 14 volunteering that something further could be 15 done in relation to the ARQ data and, in this 16 instance, it was the Investigator and the lawyer 17 who said that that wasn't required. 18 In other instances, it was lawyers such as 19 Ms Panter, who were saying a generic statement 20 will do, and so, insofar as I could judge from 21 what I could see, it was the Post Office side of 22 things saying "This is enough", rather than 23 their expert or the company that he worked for 24 telling them that it didn't need to be done. 25 Q. I think you're nonetheless critical of the 133 1 failure to make reference within the generic 2 statement of material directly relevant to 3 Horizon reliability that Mr Jenkins was aware of 4 at the time that he made the October 2012 5 generic statement? 6 A. Yes, because, as an expert, and bound by the 7 rules in relation to what was required of expert 8 evidence, he was required to identify that which 9 was relevant to and potentially undermining of 10 any opinion he expressed and, if he was 11 expressing an opinion that the system worked 12 properly and he was aware of material that might 13 suggest to the contrary, then he had a duty to 14 disclose that in his report, even if he hadn't 15 been asked to. 16 Q. You began that sentence with the words "As 17 an expert"? 18 A. Yes. 19 Q. Can I ask you please an open question as to why 20 you described Mr Jenkins as an expert -- 21 A. Firstly -- 22 Q. -- and what you mean by that? 23 A. Firstly, that was how he was treated in the 24 sense that, when his statements were served in 25 these various cases, when he was called in the 134 1 case of Ms Misra, he was identified an expert. 2 An expert is someone who is expressing their 3 opinion on a matter that is outwith the 4 knowledge of the jury. He was being called to 5 express his opinion as to the operation of 6 a computer system that had been produced by the 7 company that he worked for and about the 8 operation of which the jury were unlikely to 9 know anything at all. 10 Q. In the light of that fact, did you identify -- 11 again this is generally -- any instructions in 12 any case to Mr Jenkins, which instructions 13 identified to him the duties of an expert 14 witness? 15 A. No, none at all and I should say, in relation to 16 that, that I'm not, in that sense, relying on 17 the "Gareth Jenkins Chronology" document. 18 I have been fortified since 4.00 on Friday, when 19 I received them, by two lever-arch files of 20 correspondence between the Post Office and 21 Gareth Jenkins, which shows a lot of contact 22 between them, in not a single one of which were 23 his duties as an expert hinted at. 24 Q. Was that of concern to you? 25 A. Oh, yes. 135 1 Q. What level was the concern that you felt? 2 A. Well, as I touched on in my Volume 1A, the 3 responsibility of someone instructing an expert, 4 as to what they have to tell their expert, has 5 evolved over time. Certainly now, and for 6 a period of years before now, it's very clear 7 from, for example, the CPS or the Health and 8 Safety Executive that they recognise the 9 importance of making clear to an expert what 10 their duties are, the rules now make clear that 11 they should do that. 12 But the rules for an expert have been clear 13 for quite some time, and the duty on a party to 14 make sure that others involved, such as 15 an expert they're instructing, comply with the 16 rules, made it, in my view, obvious that they 17 ought to have told someone who they were 18 instructing as an expert what their duties were, 19 particularly where they were aware, not least 20 because he told them, that he hadn't done this 21 kind of thing before. 22 Q. We're going to come perhaps tomorrow to the 23 detail of that. You're referring, I think, to 24 an email where he asks expressly for help -- 25 A. Yes. 136 1 Q. -- and says, "I've not done this before" -- 2 A. Yes. 3 Q. -- "what should happen?" 4 A. Yes. 5 Q. "What do I need to do?" 6 A. Yes. 7 Q. In this context, the present context I'm asking 8 you, which is the preparation of the generic 9 statement, do you agree that it was important 10 for the Post Office prosecutors to tell 11 Mr Jenkins, remind him of his duties to the 12 court, in particular in relation to the 13 disclosure of any information that undermined 14 the views that he was expressing, when proposing 15 that he should provide a generic statement 16 concerning Horizon? 17 A. Yes. 18 Q. That didn't happen? 19 A. No. 20 Q. Can we look, please, at POL00026567. You'll see 21 from the first page here that this is a case 22 concerning Kim Wylie. Again, it's not one of 23 the case studies but it's the beginning of the 24 trail, which leads to the generic statement, 25 I think. We'll see that this is an advice by 137 1 Harry Bowyer of Cartwright King? 2 A. Yes. 3 Q. It's after Second Sight have been announced as 4 investigators and, if we just scroll through it, 5 please, paragraph 1: 6 "In my earlier advice I advised we would 7 need to prove the integrity of Horizon as there 8 was apocryphal evidence on the Internet and 9 elsewhere that the system was leading to 10 injustice. 11 "The position of the Post Office has, up 12 until now, always been very robust. When the 13 system has been challenged in the criminal 14 courts the system has always been successfully 15 defended." 16 Second Sight has been announced: 17 "Whether this announcement was well 18 considered or not is not an area that I intend 19 to address but the bell cannot be unrung and 20 there will be consequences ..." 21 Then if we scroll on, please: 22 "... we have now given ammunition to those 23 attempting to discredit the Horizon system. The 24 argument will be there is no smoke without fire 25 and we would not have needed to audit a bomb 138 1 proof system. We can expect this to go viral in 2 that any competent defence solicitor advising in 3 a case such as this will raise the integrity of 4 the Horizon system and put us to proof as to its 5 integrity. As all of our cases depend on the 6 system to compute the alleged losses this is 7 likely to affect a considerable percentage of 8 our cases. 9 "4. The extra evidence which we will be 10 obliged to gather will be as nothing in 11 comparison to the potential disclosure problems 12 we may face. Until the Second Sight ... is 13 concluded we will be in limbo. It is essential 14 that this ... is completed as soon as possible 15 and we can live by its findings. We will have 16 to find out when this enquiry will report in 17 order that we choose our strategy. If it is 18 a matter of weeks, then cases can be put over 19 until after it reports. If we are talking 20 months then the courts will not wear such 21 delays. 22 "I assume we will contend that the system is 23 foolproof in which ... we should defend it 24 aggressively. I understand the manufacturers 25 have not been helpful up until now. My 139 1 understanding is they will not provide expert 2 evidence without large fees being sought. This 3 will not do. If the integrity of the system is 4 compromised then the consequences will be 5 catastrophic for all of us including them. The 6 financial consequences of convictions and 7 confiscation orders being overturned and 8 confidence in the Post Office bookkeeping being 9 restored for future prosecutions will be 10 astronomical. They should be made to understand 11 that this is a firefighting situation and it is 12 not just our house that will be burned down if 13 the system were compromised." 14 Then on to 6, please. 15 "... we should attend to the following: 16 "... identify the contested cases, both 17 criminal and civil, in which Horizon has been 18 challenged ... identify areas of challenge and 19 how we neutralised them. Any expert report 20 should be retained for evaluation. An expert 21 should be identified and instructed to prepare 22 a generic statement which confirms the text of 23 the system and why the attacks so far have been 24 unfounded. This expert should be deployed in 25 all cases where the Horizon system is challenged 140 1 and he should be prepared to be called to reply 2 to defence experts on a case-by-case basis." 3 Just stopping there, and putting aside 4 Mr Bowyer's turns of phrase, did you identify 5 anything problematic with the approach set out. 6 A. Well, the first point that occurs is that 7 Mr Bowyer is there identifying a need to 8 consider earlier cases, where issues with 9 Horizon had arisen with a view to an expert now 10 explaining how -- why those earlier attacks had 11 been unfounded, rather than there being any 12 consideration here of whether the material 13 generated by earlier cases where Horizon had 14 come into attack was material that was capable 15 of undermining the prosecution case, assisting 16 that of another defendant and, therefore, it 17 being material that ought to have been disclosed 18 to them. 19 And the other point is that this, as it 20 describes, is a generic statement to confirm the 21 integrity of the system, rather than asking 22 an expert to examine the integrity of the system 23 in relation to any case that is going to be 24 prosecuted. So it's a bit like the press 25 release that asserted that the system worked 141 1 well, that Mr Singh and others had been working 2 on in 2012, rather than meeting the 3 prosecution's obligations, both in relation to 4 the reliability of their evidence or disclosure 5 in relation to their case of material that might 6 undermine that, or at least to look whether it 7 was reliable or not, on a case-by-case basis, 8 rather than through a generic statement. 9 Q. So if we go to the last page of this document, 10 if we just scroll on a bit. We'll see it's 11 dated 11 July 2012, and that seems to be the 12 origin of the idea of a generic statement -- 13 A. Yes. 14 Q. -- prepared by an expert. Mr Bowyer doesn't 15 identify that the expert should come from 16 Fujitsu -- 17 A. No. 18 Q. -- or the identity of the expert? 19 A. No. 20 Q. Can we go to POL00141396. Can we see at the 21 foot of the page, or halfway down, Mr Cash, 22 a solicitor at Cartwright King, sending that 23 advice over to Jarnail Singh from Mr Bowyer 24 saying: 25 "I know it will be unpalatable, but for what 142 1 it may be worth I share his view." 2 Yes? 3 A. Yes. 4 Q. Then further up the page, please. Mr Singh 5 distributes it: 6 "Hugh -- Cartwright King's lawyer in the 7 case of Wylie has advice on evidence and also 8 how to progress Horizon challenges, in view of 9 its content can this be forwarded to case 10 officer and Dave Pardoe. 11 "[Jarnail Singh]." 12 So it has been distributed around the 13 organisation? 14 A. Yes. 15 Q. Do you view what had been advised, its adoption 16 by Mr Cash and its promulgation on to the Post 17 Office, as consistent with the duty on 18 solicitors who have the conduct of private 19 prosecutions to discharge their duties to act as 20 ministers of justice? 21 A. No, because it didn't identify, nor did anyone 22 who had received Mr Bowyer's advice identify, 23 that it was advising on a bandage, rather than 24 on an investigation of what the illness was, or 25 what the injury was. It was looking at how to 143 1 protect the system, rather than to assess the 2 reliability of the fundamental evidence in the 3 prosecution of subpostmasters. 4 Q. I should have said that Mr Bowyer was in-house 5 counsel, rather than a solicitor. 6 A. Yes. 7 Q. Did you regard the advice and its adoption and 8 promulgation as consistent with the proper 9 approach to disclosure, in accordance with the 10 CPIA and the Code of Practice issued thereunder? 11 A. No, it's effectively, rather than identifying 12 a reasonable line of inquiry, on the one hand, 13 and material capable of undermining the 14 prosecution case or that, if it was in their 15 possession, might undermine the prosecution 16 case, on the other, it was seeking a statement 17 that would obviate the need for either. 18 So rather than checking whether the system 19 was reliable, they would have a statement that 20 they could just add to the bundle that will 21 assert it was fine without checking and they 22 would have a statement that would close off 23 enquiries of -- on the part of the defendants, 24 or disclosure requests from defendants, in 25 relation to the operation of the system, rather 144 1 than identifying there would be material that 2 needed to be investigated as to whether the 3 system was working properly. 4 Q. Just before the break, can we look at 5 POL00141416, please. An email -- sorry, if we 6 scroll down, please -- back to the top, please. 7 Can we see this is an email, if you scroll down 8 a little bit you'll see I think it's from 9 Mr Bowyer, Harry, yes? 10 A. Yes. 11 Q. Then to the top, this is its cut off but it's 12 dated 6 August. The advice we'd seen was July, 13 if you remember. 14 A. Yes. 15 Q. "This appears to be what we want. 16 "Hopefully Helen will confirm that the 17 Horizon system has never been successfully 18 challenged. I have yet to see any sign of any 19 experts briefed on behalf of the defence. 20 "When she has completed her exercise she 21 should prepare a summary of those cases where 22 there is a proper attack on the system rather 23 than a gripe that the system is at fault 24 (although she should record those cases so that 25 we can say that they have been kept under 145 1 review -- they will become more numerous as the 2 bandwagon and pikes up speed)." 3 Then this: 4 "The expert will need to address the report 5 to the following issues ..." 6 And then four issues are identified; can you 7 see that? 8 A. Yes. 9 Q. "A description of the Horizon system; 10 "A declaration that it is yet to be attacked 11 successfully; 12 "A summary of the basic attacks made on the 13 system concentrating on any expert reports 14 served in past cases. If there are none, then 15 state that no expert has yet been found by any 16 defence team, civil or criminal, to attack the 17 system (at the moment there seems to be little 18 more than griping by defendants that the system 19 must be at fault without saying how). 20 "4. Plainly, like all accounting systems, 21 there is room for human error (Keying in the 22 wrong amounts etc) but the expert should be able 23 to state that innocent human error is unlikely 24 to produce the types of discrepancies of many 25 thousands of pounds over many months." 146 1 If we stop there, remember those four 2 questions, and then come back after the break to 3 see what happened to them and what ended up 4 being produced, as a result of them. 5 Sir, can we break until 3.30, please. 6 SIR WYN WILLIAMS: Yes, of course. 7 MR BEER: Thank you. 8 (3.16 pm) 9 (A short break) 10 (3.30 pm) 11 MR BEER: Sir, can you see and hear us? 12 SIR WYN WILLIAMS: Yes, thank you. 13 MR BEER: Thank you. 14 Mr Atkinson, we had just looked at the four 15 questions that Mr Bowyer had prepared in his 16 email of 6 August. Can we move on to September 17 2012 and look at POL00020489. If we scroll to 18 the second email down there. Mr Singh says: 19 "Andy [that's Andy Cash] 20 "Thinking about choice of expert in this 21 case. I have in the past instructed Gareth 22 Jenkins of Fujitsu in the case of Misra which 23 incidental was the only challenge on Horizon, he 24 provided expertise in dealing with defences 25 boundless enquiry into the whole Horizon system. 147 1 Perhaps we need to reconsider whether to 2 instruct him as he may be viewed too close to 3 the system but instruct 4 "Somebody entirely independent? Your 5 thoughts please and also whether you or Harry 6 have anybody in mind. 7 "Thank you." 8 Then further, up the page, Mr Bowyer says: 9 "I would have preferred somebody entirely 10 independent but this is such a specialist area 11 that we would be hard pushed to get a report in 12 the timescale we require -- we might open our 13 expert up to allegations of partiality but his 14 expertise will be unlikely to be challenged." 15 Then there's some timing issues. 16 In the light of that exchange, the Post 17 Office internal lawyers, on the one hand, and 18 the Cartwright King lawyer, on the other, were 19 seemingly aware, would you agree, of Mr Jenkins 20 not being functionally independent? 21 A. Yes. 22 Q. Given the breathless tones in which Mr Bowyer's 23 memo had earlier been written, as to this being 24 a potential moment of crisis, do you agree that, 25 given that significance that was being attached 148 1 to the issue of the instruction of an expert, 2 and this recognition that Mr Jenkins was not 3 functionally independent, it was important that, 4 if Mr Jenkins was instructed, that he should be 5 made to understand that he was subject to a wide 6 range of duties -- 7 A. Yes. 8 Q. -- as an expert witness? 9 A. Yes, and, in particular, a requirement that he 10 be independent. 11 Q. What do you mean by that? 12 A. Well, it was essential that he were -- he 13 understood that he was being asked to give his 14 independent opinion about these things, rather 15 than to provide evidence that was mapped out for 16 him or to give an opinion that he was being told 17 to give, in effect. 18 Q. Can we turn to POL00096978. We can see this is 19 an email of 1 October 2012 to Mr Singh -- sorry, 20 from Mr Singh to Mr Jenkins. Also included in 21 the distribution list is Penny Thomas of 22 Fujitsu, Hugh Flemington of the Post Office, 23 Martin Smith of Cartwright King. Subject 24 "Horizon Fujitsu Report Very Urgent": 25 "Welcome from your annual leave and your 149 1 assistance advice in the past prosecution cases 2 and I understand you are assisting my colleagues 3 at present. I need your urgent assist judge has 4 this morning ordered the prosecution to have the 5 following report ready to be served within Seven 6 days. On advise Post Office Limited have 7 appointed one of their investigators, Helen 8 Rose, as disclosure officer dealing with Horizon 9 challenges. She has prepared a document/spread 10 sheet detailing all such cases, past and 11 present, approximately 20 in total, although 12 none thus far successfully argued in court. 13 Post Office Limited have been advised to obtain 14 an experts report from Fujitsu UK, the Horizon 15 system developers, confirming the system is 16 robust." 17 Just stopping there, is that the antithesis 18 to the type of instruction that you just 19 mentioned? 20 A. Yes. 21 Q. "Post Office Limited maintain the system is 22 robust, but in the light of adverse publicity, 23 from legal viewpoint is that defence should be 24 given opportunity to test the system, should 25 they still wish to do so, on consideration of 150 1 our report. 2 "You will need to consider the Disclosure 3 officers document/spreadsheet (see attachments) 4 and need to address in your report the following 5 issues ..." 6 Then cut and pasted into this email is the 7 Harry Bowyer 6 August list of four. 8 A. Yes. 9 Q. Yes? 10 To the extent that it's possible to 11 understand what Mr Singh was asking to be done 12 by this email, do you agree that the email, on 13 any view, omitted any instructions or guidance 14 to Mr Jenkins as to his duties as an expert? 15 A. Yes. 16 Q. I think it also omitted reference to any 17 specific prosecution, any specific defendant, 18 any specific branch, nor did it refer to any 19 Horizon data that might be analysed in order to 20 reach conclusions? 21 A. Yes. 22 Q. The email says that the report, or Mr Jenkins, 23 will need to address the following issues and 24 there are four of them set out. Was this 25 an appropriate means of instructing Mr Jenkins? 151 1 A. As an email as a whole, it was far from 2 an appropriate way to instruct an expert. It 3 didn't set out what Mr Jenkins' responsibilities 4 and duties as an expert were, as we've already 5 touched on. It didn't remind him of his duty of 6 independence, that he owed his duty to the court 7 and not to those who were instructing him. 8 In terms of the four Bowyer points, as cut 9 and pasted into this, the first one, no 10 difficulty with that, and asking him to give 11 a description of the system in layman's terms 12 was not an issue. A declaration that it has yet 13 to be attacked successfully, on the one hand, 14 sounds as if it is telling him what he has to 15 say, which, given that he is being instructed as 16 an independent expert, would not be 17 appropriate -- 18 Q. It is also false. 19 A. -- and that never helps -- and underlines the 20 viewpoint that he's meant to be coming from, 21 which had already been set out rather too 22 clearly in the first large paragraph on the 23 page. 24 A summary of the basic attacks made on the 25 system, and drawing a difference between griping 152 1 and anything else, again, was telling him what 2 to say and how to approach it. 3 And the last, point 4, is almost a script 4 for him of what to say. 5 So what would have been appropriate would 6 have been to identify a series of areas on which 7 they were asking for his opinion, as 8 an independent expert rather than telling him 9 what his opinion was on a series of areas and, 10 effectively, telling him that he was being 11 instructed to defend the system and to assert 12 that it didn't have issues. 13 Q. Are you able to say whether a person in receipt 14 of such an instruction, if they knew of issues 15 or defects that fell outside the four corners of 16 the four issues that are mentioned, ought 17 nonetheless to have set them out in any written 18 document that was a reply to this email? 19 A. Yes, at the very least, you would have expected 20 anyone who was aware of issues with the system 21 to say, "These are the issues with the system 22 that I ought to address in this context". And 23 so if, by way of example, you were aware of the 24 bug in the system that you had had meetings 25 about in 2010, you ought to have been flagging 153 1 that up in 2012. 2 Q. Even if that wasn't a bug which constituted 3 a successful attack by a defendant upon the 4 system or a bug that had been mentioned in 5 an expert report served in a past civil or 6 criminal case? 7 A. Well, at the very least, if you're being asked 8 to put together a report that would go to court 9 and which you would potentially have to answer 10 to, in court, you would be asking for guidance 11 as to what, if anything, you needed to say about 12 X that you were aware of, that was an issue with 13 the system, that was beyond a typing error or 14 griping. 15 Q. What would you say to the suggestion that, to 16 the extent that this was an instruction to 17 a witness, it was to produce a report that 18 addressed and only addressed the four specific 19 questions as narrowly formulated by Mr Bowyer? 20 A. I think I would say to that that, if you were 21 putting your name to a declaration of truth in 22 relation to this, at the very least, you would 23 be questioning whether a statement that just 24 answered those four points and said nothing 25 else, when you knew there was more, was 154 1 incomplete or perhaps misleading. 2 Q. Would you agree that, in any event, the four 3 specific questions do not ask Mr Jenkins to 4 provide a general overview of software issues? 5 A. They're asking him to provide a generic 6 statement about the system. Certainly, my 7 reading of it, I wouldn't see that as excluding 8 software issues but, if it was unclear, then one 9 could ask. 10 Q. What about hardware issues: same answer? 11 A. Same answer. 12 Q. What would you say to the suggestion that the 13 focus of this email requires Mr Jenkins himself 14 to focus on defence-led challenges, in the 15 course of previous litigation, and nothing else? 16 A. Well, the -- he was clearly being asked to deal 17 with defence-led issues in relation to question 18 3, but these was also being asked more generally 19 to provided support for the Post Office view 20 that the system was robust. That's clear from 21 the paragraph at the top of the page. 22 He would also, by this point in 2012, have 23 been aware of how wide-ranging defence 24 questioning in relation to the operation of the 25 system could be, because he had been questioned 155 1 in the case of Ms Misra and that had been 2 wide-ranging questioning. 3 So, at the very least, he would have had 4 questions in his mind as to what needed -- this 5 needed to cover, I would have thought. 6 Q. Taking a step back, however, for a person that 7 was not, by training or profession, an expert 8 witness, would you agree that, as a letter or 9 document of instruction, this was woefully 10 inadequate? 11 A. Yes. 12 Q. Mr Jenkins duly produced a draft report 13 responding to the four Bowyer questions, and 14 this was circulated, amongst others, at 15 Cartwright King on 2 October. If we look, 16 please, at POL00096997. If we scroll down, 17 please. Keep scrolling, please. If we just 18 scroll up to get the date. Harry Bowyer to 19 Martin Smith and Andy Cash, so internal to 20 Cartwright King at the moment: 21 "At first sight this/these look like a good 22 base upon which are reports can be based (as 23 most are fishing expeditions they will do in 24 their current form). 25 "I have edited the last report ... because 156 1 as it currently stands it is an invitation for 2 requests for further disclosure ... Can you put 3 this past Mr Jenkins. 4 "Can you draft generic Section 9 statements 5 for the witness to produce the report(s). This 6 must set out his expertise to comment on the 7 system both the old and new -- we have to 8 establish his right to speak an expert. 9 "I am in favour of the descriptive words 10 being added to the diagram ... 11 "Beyond that keep it simple -- the secret 12 here will be to respond to the defence expert 13 report rather than try to anticipate every rock 14 to be thrown at us -- unless they be obvious 15 from the defence statement/interviews. 16 "If there is a specific challenge in a case 17 then the statement and the report can be tweaked 18 to cover the eventuality. 19 "My view is that most challenges to the 20 Horizon system should now vanish away before 21 trial." 22 This seems to involve a discussion amongst 23 the Cartwright King lawyers that defence cases 24 that had raised Horizon issues were fishing 25 expeditions? 157 1 A. Yes. 2 Q. It appears to proceed on the basis that the only 3 point that needed to be established still 4 further was Mr Jenkins' qualification to give 5 an expert report? 6 A. Yes. 7 Q. It doesn't ensure or suggest "We now need to 8 ensure that Mr Jenkins was properly instructed 9 as an expert"? 10 A. No, and doesn't refer to the need for him to 11 provide a declaration of the kind envisaged by 12 the rules in relation to his duties as 13 an expert, either. 14 Q. Can we look, please, at POL00096999. If we 15 scroll down, please, and still further. 16 Mr Jenkins: 17 "Dear Jarnail, 18 "Attached are the two existing reports 19 I mentioned regarding Horizon and Horizon Online 20 integrity." 21 They're a separate issue. Then further up, 22 Mr Singh: 23 "Thank you for forwarding your report. As 24 in previous cases you kindly assisted in your 25 report needs to be put in a statement format, 158 1 perhaps you could look at your previous 2 statement and let me have your qualifications, 3 credentials, experiences, knowledge, expertise 4 of the Horizon system. On receipt I will 5 forward draft statement for your approval." 6 So a request to put this in statement 7 format? 8 A. Yes. 9 Q. Can we look, please, at POL00097008. Then 10 scroll down, please, foot of the page, keep 11 going, please. If we just scroll up to catch 12 the date, please, 4 October. Mr Jenkins to 13 Mr Singh. 14 "Sorry for the delay. I've been in meetings 15 ... 16 "I've made some changes ... to tidy up 17 formatting and add in some text below the 18 diagrams -- mainly pasted from the Referenced 19 [Documents]. 20 "In the [document] you sent me you were 21 asking what the 2 [documents] referenced in 22 Section 3 were. They are the 2 brief documents 23 on Horizon integrity and Horizon Online 24 integrity I sent you on Tuesday. I think it is 25 clearer to keep these as separate stand alone 159 1 [documents] which can presumably be presented as 2 part of the witness statement ... You have 3 [also] removed my explicit reference to the 4 Misra witness statement. Presumably this will 5 also be available since that is where the main 6 rebuttal of [Professor] McLachlan's hypotheses 7 is covered." 8 Do you understand this to be Mr Jenkins 9 saying, "Although you're making out my 10 references in my witness statement to other 11 documents, I presume that those documents are 12 going to be available" -- 13 A. Yes. 14 Q. -- "in the prosecution in court"? 15 A. Yes. 16 Q. Then scroll up, please. Martin Smith to 17 Mr Singh: 18 "... I have deleted the first paragraph of 19 Section 3. If the report is served in its 20 [current] form the Defence will ask for copies 21 of the [documents]. However if Gareth, as 22 an expert, feels that the [documents] should be 23 provided, he will need to give them exhibit 24 numbers ..." 25 Scroll up, Gareth: 160 1 "I would prefer to present the [documents] 2 as Exhibits, so can the wording of section 3 be 3 changed accordingly." 4 So it appears that Mr Jenkins is saying, 5 "I want the documents that I previously 6 prepared, the two reports, to be revealed" -- 7 A. Yes. 8 Q. -- "and as exhibits to my witness statement"? 9 A. Yes. 10 Q. Can we look, please, at FUJ00153812. 11 "Please find draft statement ..." 12 This the 4th now at 11.43: 13 "... for you to consider, amend and return 14 ..." 15 Then, lastly, FUJ00123982. The 5th, 16 Ms Jennings: 17 "Please find attached the Section 9 witness 18 statement. It was not as simple as just cutting 19 and pasting ..." 20 In that final draft of the witness statement 21 that was sent across, the words "I understand 22 that my role is to assist the court" had been 23 added by either the Post Office or Cartwright 24 King. Would you agree that those words, without 25 more, were insufficient to satisfy the 161 1 requirements arising on an expert report, either 2 at common law or under the Criminal Procedure 3 Rules. 4 A. Yes. 5 Q. The statement as served did not include 6 a statement that Mr Jenkins had complied with 7 his duty to the court to provide independent 8 assistance by way of objective and unbiased 9 opinion, in relation to matters within his 10 expertise. Was that cured by the inclusion of 11 the words "I understand that my role is to 12 assist the court"? 13 A. No. 14 Q. Can we look, please, at POL00097061, and scroll 15 down, please. 16 This is a generic email, it seems, that goes 17 out from Sharron Jennings to a series of 18 witnesses in the Patel case, including 19 Mr Jenkins: the case is up for trial at 20 Peterborough Crown Court but has been put back 21 until 14 January and is listed for a seven-day 22 trial. 23 Then scroll up, please. Mr Jenkins replies: 24 "Sorry, but I'm not aware of this case or 25 what might be required of me ... 162 1 "I'm not aware of any outstanding cases 2 which I might be involved in." 3 Further up the page, Ms Jennings replies: 4 "This is the one that you supplied the 5 expert report and witness statement for the week 6 before last." 7 I think that's a reference to the generic 8 witness statement: 9 "Apologies for not explaining that properly 10 in the previous email. It was a blanket email 11 for all witnesses! It is unclear at this stage 12 who will be required as witnesses and which 13 evidence will be accepted without the need for 14 attendance." 15 Then the rest of it is concerned with Andy, 16 and then scroll up the page, please: 17 "[Thank you] for the clarification. I had 18 not understood that that related to a specific 19 case ..." 20 I think that's the generic witness 21 statement: 22 "... I thought that was a general statement. 23 If I am required to go to court for that, 24 I think I need to have some more background on 25 the specific case and exactly what is being 163 1 alleged. I appreciate that is not covered by my 2 statement, but if I need to be an expert 3 witness, I need to understand what is happening. 4 "Please note that if I am required to do 5 anything further on this, some commercial 6 arrangements will need to be made to cover my 7 time and costs since I am not covered by the 8 normal Security Service that [the Post Office] 9 pays for. Perhaps you can sort out the 10 details", et cetera. 11 Then up the page, please, we can see that 12 Ms Jennings replies to Mr Jenkins amongst 13 a large collection of other people, but most 14 specifically addresses her reply to Post Office 15 Security, the generic email address: 16 "There appears to have been some sort of 17 confusion regarding the trail of emails below. 18 Gareth was asked to supply an expert report on 19 Horizon integrity by the Legal Team and I was 20 asked to input this onto a Section 9 statement 21 in order to produce it in court. Gareth was not 22 aware that this related to a specific case and 23 was also not aware that he would be required in 24 court. I have spoken to Gareth and he is happy 25 to attend but as explained below it is over and 164 1 above the [Business As Usual] arrangements that 2 we have with Fujitsu so some extra arrangements 3 are required in order to cover extra costs and 4 time ..." 5 Putting aside for the moment the parts of 6 the emails that concern the extent of the BAU 7 arrangements and the provision of extra costs 8 and time, do you agree that this is a concerning 9 exchange of emails involving Mr Jenkins? 10 A. In the sense of his apparently not having 11 understood what he was providing the generic 12 statement for, yes, it is. 13 Q. He, would you agree, appears to be under a state 14 of some confusion as to the role that he is 15 performing? 16 A. Yes. 17 Q. He says: 18 "I thought this was a general statement. If 19 I'm going to come back to court for a specific 20 case, I need more background on the specific 21 case and what is being alleged in that case." 22 A. Yes. 23 Q. In your oral evidence to the Inquiry back on 24 6 October, you stated that the cost of obtaining 25 material was not a relevant consideration in 165 1 deciding whether to seek material from a third 2 party? 3 A. In general terms, that's right, yes. 4 Q. You identify in various places across your 5 Volume 2 report instances where cost appears to 6 have been a factor in decision making? 7 A. Yes. 8 Q. Was this exchange amongst those areas of 9 concern? 10 A. I don't think I had seen -- in fact, I'm looking 11 at how they're described, I hadn't seen this 12 exchange and so, no, it wasn't. 13 Q. That can come down. Thank you. 14 During your oral evidence to the Inquiry, 15 again back on 6 October, you stated that, when 16 making decisions on disclosure, the prosecutor 17 should not restrictively analyse the case of 18 a defendant, not least because the defence might 19 not be able to identify something that they 20 don't know anything about. 21 A. No, and the Attorney General's Guidelines, by 22 way of example, make that clear. 23 Q. You, I think, have seen a range of 24 correspondence amongst Post Office lawyers and 25 between Post Office lawyers and Investigators, 166 1 in which the lawyers adopted the view that it 2 was for the defence to identify what the problem 3 was with Horizon? 4 A. Yes. 5 Q. Did you form a view as to the appropriateness of 6 that approach? 7 A. Yes, I thought it wasn't appropriate at all. 8 Q. Can we look, please, at POL00059404. If we go 9 down the page, please, and scroll down, please. 10 We get, if we just scroll up a little bit, 11 an email of 16 November 2012, from Rachael 12 Panter, yes? 13 A. Yes. 14 Q. If we scroll down, please, she says that: 15 "... most, if not all cases raising the 16 Horizon system as an issue, have been unable/not 17 willing to particularise what issues they may 18 have with the system, and how that shapes the 19 nature of their defence." 20 A. Yes. 21 Q. That's similar to the language I think we saw 22 earlier from Mr Bowyer? 23 A. Yes. 24 Q. Is that consistent or not consistent with the 25 proper approach of a prosecutor to the issue 167 1 that you're presently addressing, namely whether 2 it's for the defendant to, in these Horizon 3 cases, identify an issue with Horizon before the 4 prosecutor investigates it? 5 A. It's putting the onus on the defence to identify 6 the specific respect in relation to which the 7 Horizon system was not reliable, rather than 8 recognising the obligation on the prosecution to 9 satisfy itself and then others as to the 10 reliability of the system that underpinned its 11 prosecution. 12 Q. If we scroll up, please -- thank you. 13 Mr Jenkins says: 14 "Can't you use the report I have already 15 sent you? There is no mention of the case 16 [that's Khayyam Ishaq] on the report. 17 "You should really be addressed such 18 requests through Post Office Limited rather than 19 directly to myself. 20 "... there is no commercial cover in place 21 for me to spend ... time on such activities ..." 22 Then up, please. James Davidson, a delivery 23 executive at Fujitsu, says: 24 "I am concerned at the engagement approach 25 being taken here, we are fully on board to 168 1 support but all approaches must come through 2 Post Office by the correct change process." 3 Then up, keep going, please, then a reply to 4 both James Davidson and Gareth Jenkins: 5 "Apologies if I have approached this in 6 an unconventional way." 7 Second paragraph: 8 "In response to your email Gareth, I do 9 intend to use the report that you have already 10 provided." 11 Then this: 12 "It doesn't matter that you have not 13 mentioned a specific case in your report, as 14 there has not been any specific criticisms 15 raised by any of the defendants provided in my 16 list of cases. It would be a different scenario 17 if there had been specific criticisms made, as 18 your report would have to respond to that 19 particular issue." 20 Does that approach evidence the advice that 21 you were managing a moment ago? 22 A. Yes, because in any one case a postmaster, while 23 being interviewed, may have identified that they 24 were experiencing problems. They may even have 25 said something about the circumstances in which 169 1 they were identifying those problems or the 2 period during which they were experiencing those 3 problems and there was then a responsibility on 4 the investigation and the prosecution to test 5 that to see if there was something that explains 6 how that might have been, either to rebut it, or 7 to identify material that was capable of 8 supporting it. That is a specific exercise for 9 a specific case, based on specific facts and 10 based more particularly on specific data. 11 It is not something that doesn't matter 12 because the subpostmaster wasn't able to give 13 technical chapter and verse as to exactly what 14 had gone on. 15 Q. Would you consider this to be a further example 16 of the Post Office restricting its evidence and 17 its disclosure obligations by reference to the 18 way in which the defence case was put? 19 A. Yes. 20 Q. Thank you. That can come down. 21 A. It was not identifying a reasonable line of 22 inquiry and it was not grappling with their 23 disclosure obligations. 24 Q. Thank you. Can we turn to topic 6, please, 25 which is a wider issue of third-party 170 1 disclosure. It's paragraph 666 of your second 2 report, which is on page 238. You say: 3 "... there was no real discussion that 4 I have seen, beyond this discussion as to cost 5 ..." 6 This discussion as to cost is referring back 7 to some previous paragraphs, in particular 8 concerning the Seema Misra case, where the cost 9 of obtaining disclosure was a topic of 10 discussion. 11 A. Yes. 12 Q. "... there was no real discussion that I have 13 seen, beyond this discussion as to cost, of the 14 relationship between the Post Office and 15 Fujitsu, in relation to the obtaining and 16 disclosure of material held by Fujitsu that was 17 potentially relevant to the Post Office's 18 prosecutions." 19 Are you identifying here that you would have 20 expected to see some written exchanges, some 21 communications, between the prosecutor and this 22 third-party provider of material, about how the 23 third party is going to provide material? 24 A. Two stages. That is the second stage. The 25 first stage is, I would have expected to see 171 1 discussion between Investigator and prosecutor, 2 as recognising the need to obtain material from 3 the third party, Fujitsu, because it was 4 potentially relevant, either as evidence or as 5 disclosure, as to the reliability of the system 6 that was operated by Fujitsu. 7 Q. Did you identify any examples or occasions on 8 which the Post Office made clear to Fujitsu the 9 nature and scope of its, the Post Office's, 10 disclosure obligations? 11 A. No. 12 Q. As to its, the Post Office's, obligations to 13 obtain material from third parties such as 14 Fujitsu? 15 A. No. 16 Q. As to the categories of material that Fujitsu 17 held and which were potentially relevant for at 18 least consideration for disclosure in 19 a prosecution? 20 A. No, and, as part of that, under the Attorney 21 General's Guidelines, there was a requirement on 22 the prosecutor and investigation to notify 23 a third party that might have material that it 24 might need to seek, to ask it to retain the 25 material, at the very least. 172 1 Q. Well, that's where I was going next, given that 2 requirement of notification under the AG's 3 Guidelines, did you see any communications that 4 at least put Fujitsu on notice as to its 5 retention policies, given that the data that it 6 was producing may be needed in a prosecution? 7 A. No. 8 Q. Thank you. Can we turn to topic 7, please, 9 disclosure and unused material. Way back in 10 paragraph 17 of your report, which is on 11 page 12, you say: 12 "In procedural terms" -- 13 Sorry: 14 "There was, in particular, failures of 15 disclosure in relation to Horizon data. This 16 included the failure to close it underlying 17 material to that relied on, including ARQ data, 18 either at all or to the extent necessary. The 19 attitude that appears to have informed 20 disclosure was the belief that the defence 21 should identify with clear focus what the 22 problems [were]." 23 I'm sorry I'm reading from 18. 24 A. Yes. 25 Q. "That was a flawed approach." 173 1 Then going back to 17: 2 "In procedural terms, the Disclosure 3 Officer, who was usually also the Investigator, 4 usually did prepare Schedules of Unused 5 Material. These were often inadequate in terms 6 of their content and description, and there is 7 little evidence that they were reviewed, as ... 8 required, by the prosecutor. Decisions as to 9 disclosure from the schedules were flawed or 10 overly restrictive. In some cases this position 11 was improved by action from trial counsel." 12 The Full Code Test, under the Code for Crown 13 Prosecutors required, is this right, 14 a prosecutor to consider whether reasonable 15 lines of inquiry had been pursued? 16 A. Yes, the Code in that respect evolved over time, 17 and that requirement became clearer with each 18 iteration. 19 Q. It required the prosecutor to consider whether 20 any further evidence or material was likely to 21 affect the application of the Full Code Test, 22 whether in favour or against the prosecution? 23 A. Yes. 24 Q. The evidential stage -- and I think this applied 25 at all times -- required a consideration of the 174 1 defence case and, therefore, necessarily 2 involved consideration of material that might 3 undermine a prosecution? 4 A. Yes. 5 Q. Would you agree that, in the light of those 6 requirements of the Code, it's difficult to see 7 how a prosecutor could apply the Full Code Test, 8 if they haven't seen a Schedule of Unused 9 Material, at the point at which they're deciding 10 on charge? 11 A. Ordinarily, you would expect that they would, 12 and the alternative would be for them to be 13 provided with all the unused material, instead 14 of a schedule of it. But they'd have to have 15 one or the other. 16 Q. Would you, in that alternative way, agree that 17 that would necessarily involve some rigorous 18 means of ensuring that an appropriate search had 19 been carried out by the Investigator, with 20 appropriate diligence, and that the material 21 which might undermine the prosecution case or 22 assist the defence had itself been provided to 23 the prosecutor? 24 A. You would expect them to check what they were 25 given and, if it didn't fulfil the requirements 175 1 that you've just set out, then they should be 2 going back to the Investigator requiring it, 3 rather than making a decision without it. 4 Q. So the point I'm exploring with you is that, at 5 the point of deciding on charge, advising on 6 charge, and we looked at a run of -- 7 A. Yes. 8 Q. -- advices on charge earlier, at that point, 9 should the prosecutor either have material 10 equivalent to unused material or a Schedule of 11 Unused Material? 12 A. Yes, or should be asking for it if it's not been 13 provided. 14 Q. And shouldn't advise without it? 15 A. Certainly shouldn't -- yes -- advise as to 16 charge without it. No. 17 Q. Can we look, please, at POL00052884. This is 18 the charging memorandum in relation to the 19 prosecution of Tahir Mahmood. It's dated 27 May 20 2005 and we go to the second page again. Scroll 21 down, and the third page, Juliet McFarlane. If 22 we scroll up, please, paragraph 1 says there's 23 sufficient evidence, yes? 24 A. Yes. 25 Q. But then, if we scroll down, if we see under the 176 1 numbered paragraphs, two paragraphs on, 2 beginning "You will be aware"? 3 A. Yes. 4 Q. "You will be aware of the provisions of the 5 [CPIA] concerning disclosure ... paragraph 4.10 6 of the Security Community Codes of Practice and 7 also paragraph 5(5.1-5.3) of the Codes. Please 8 let me have the necessary information on forms 9 [C, D and E]. The schedules must be signed." 10 That refers, amongst other things, to the 11 Schedule of Unused Material, Non-Sensitive, 12 Schedule of Unused Material Sensitive and the 13 Disclosure Officer's report, those three form 14 references? 15 A. Yes. 16 Q. So it appears, in this case, that advice was 17 being given as to sufficiency of evidence before 18 unused material schedules had been provided to 19 the reviewing lawyer? 20 A. Yes. 21 Q. We've heard evidence from Mr Utting, that was on 22 17 November this year, at page 104 of the 23 transcript, and from Graham Brander, on 24 29 November 2023 at pages 25 and 26 and 158 to 25 160, that unused material schedules were only 177 1 ever prepared after committal and then only in 2 the event that a not guilty plea was indicated. 3 Is that approach consistent or inconsistent with 4 what the law required? 5 A. It would be -- 6 Q. I should ask that question in a better way. 7 A. Yes. 8 Q. In terms of provision of the Schedules of Unused 9 Material, is it right that the law only required 10 those to be provided to a defendant, 11 post-committal? 12 A. To a defendant, yes. 13 Q. In relation to the prosecution approach to 14 whether there was a sufficiency of evidence, was 15 that in accordance with or a departure from good 16 practice? 17 A. Sorry, for them to be provided to the 18 prosecutor? 19 Q. Yes. 20 A. Good practice would require that they were 21 provided to the prosecutor, either the schedules 22 or the material that would otherwise be on the 23 schedule before a charging decision was made, 24 rather than after that point in time. 25 Q. If we look, for example at the Josephine 178 1 Hamilton case, I'm going to pick some other 2 examples here, POL00064235. We can see 3 a Disclosure Officer's report, if we scroll 4 down. I think this should be dated 3 January 5 2007. Ms Hamilton's first appearance in the 6 Magistrates Court was 6 December 2006, and so it 7 post-dates it by a month or so. 8 So acceptable from a service upon defence 9 perspective but not good practice in relation to 10 a prosecutor; is that right? 11 A. That's right, yes. 12 Q. You helped us in your first report about 13 a common law duty of disclosure, which arose 14 prior to the initial duty of first stage 15 disclosure under section 3 of the CPIA. Do you 16 remember a cross-reference to the case of Lee -- 17 A. Yes. 18 Q. -- namely a prosecutor needing to be alive to 19 the need to make advance disclosure of material 20 of which he is aware, which might enable 21 a defendant to make a pre-committal application, 22 including a pre-committal application to 23 dismiss. Was there any evidence in the cases 24 that you saw that that duty was recognised? 25 A. No. 179 1 Q. Was there any evidence in the cases that you saw 2 that any common law pre-committal disclosure was 3 given? 4 A. It wasn't very clear to me what was provided 5 pre-committal at all, in terms of what was 6 provided at the first appearance, if that was 7 a separate hearing, for example. So, no, 8 I can't say what was given. 9 Q. Is that a cross-reference back to a point you 10 made very early on, that the material was 11 relatively lacking in terms of what was created 12 and served at the point of the initiation of 13 process against the defendant? 14 A. Yes, so there was no material in any of these 15 cases that I saw as to what was provided to the 16 Magistrates Courts when the application was made 17 for a summons or what was provided to the 18 defence pre-the service of a committal bundle. 19 Q. In terms of what the schedules, in fact, looked 20 like when they were served, you tell us in 21 paragraph 654 of your report on page 233, you 22 say: 23 "Such schedules, for example of 24 non-sensitive unused material (equivalent to 25 an MG6C) ..." 180 1 That's a cross-reference to the Manual of 2 Guidance series of forms -- 3 A. Yes. 4 Q. -- used by the police service and the Crown 5 Prosecution Service? 6 A. Yes. 7 Q. "... were drawn up by the Disclosure Officer 8 who, where named, was also the Investigator. 9 Such schedules were quite short, and mainly 10 included correspondence and documentation 11 relating to the interview process. They lacked 12 any reference to the underlying raw accounts 13 data (to the extent that this was not included 14 in the served evidence) ... usually no reference 15 to any previous complaints or discussions by the 16 defendants with managers or helplines. This 17 applied in cases where the defendant complained 18 about the system, or referred to such complaints 19 and discussions as much as where they had not." 20 So schedules were short. 21 A. Yes. 22 Q. The preponderance of material, is this right, 23 was about the interview process? 24 A. And correspondence at the time of the interview, 25 yes. 181 1 Q. Overall, were the contents of the schedules as 2 you would have expected? 3 A. That which was there, generally speaking, was 4 correctly there but there was an awful lot that 5 wasn't there that should have been. 6 Q. Was it a short distance or a very longer way 7 from what you expected? 8 A. The difficulty in answering that is that it may 9 well have been that things were not listed as 10 material in the prosecution's possession that 11 were not being relied on in evidence, so unused 12 material that was not being listed because it 13 didn't exist because they hadn't followed 14 through the reasonable lines of inquiry that 15 would have led to them having it. So the two 16 really are connected. 17 So for example, they would not include 18 reference to ARQ data on the unused schedule 19 because they hadn't asked for the ARQ data, and 20 so they didn't have the ARQ data, as unused 21 material but, clearly, they should have followed 22 that reasonable line of inquiry, therefore they 23 should have had the data, therefore they should 24 have included it on the unused schedule and 25 therefore the unused schedule was deficient. 182 1 But it was a continuum of missed opportunity in 2 that respect. 3 Q. Thank you. 4 In terms of review by a prosecuting lawyer, 5 you address this further down the page in your 6 paragraph 656. You say: 7 "In the main, the unused schedules I have 8 seen did not show on their face any evidence of 9 a review by the prosecutor having occurred. 10 This makes it difficult to be satisfied this 11 important task was undertaken. [You] accept 12 that this may, at least in some cases, have been 13 an omission of annotation rather than of 14 review." 15 Are you saying there that this may be a case 16 where reviewing lawyers had reviewed the 17 schedules but hadn't marked them in a way to 18 show that they had done so, ie counter signing 19 them? 20 A. So it varies. There were some cases, in 21 fairness, where there were annotations on the 22 face of the schedule that showed that the lawyer 23 had reviewed it and come to a view as to 24 disclosure, which is what was required under the 25 CPIA Code, under the Attorney General's 183 1 Guidelines. There were other cases where there 2 was evidence that the lawyer had looked at the 3 schedule through other documentation, be it, in 4 the case of Mr Mahmood, there was a memorandum 5 from the lawyer asking the Investigator what was 6 disclosable from the schedule, which was 7 an interesting approach but at least showed that 8 they had registered they had the schedule. 9 And there were cases where there was 10 an accompanying letter that I saw that was sent 11 to the defence with the schedule that told the 12 defence that there was nothing on the schedule 13 that was disclosable, which I took to be 14 an indication that the lawyer had reviewed it 15 and come to that conclusion. 16 But in the majority of cases, there was none 17 of that and nothing on the face of the schedule 18 to show, one way or the other, whether they had 19 reviewed it or not. But, clearly, they should 20 have done. 21 Q. You say, over the page in paragraph 657, that: 22 "The stance [that's the stance in the 23 Josephine Hamilton case that nothing was 24 disclosable] appears to have been adopted in 25 a number of other cases, whether on the schedule 184 1 itself, or more often accompanying 2 correspondence indicated that everything listed 3 in the schedule was clearly not disclosable 4 ('CND')." 5 You say: 6 "In my view, such an assessment was often in 7 error ..." 8 Why was that so? 9 A. I identify, when I have a schedule and 10 conclusion in the individual cases, there were 11 instances of material that was within 12 an all-embracing, clearly not disclosable, 13 decision that, seemed to me, on my, I accept, 14 limited reading of the material, clearly was 15 disclosable because it was, on the face of it, 16 material that undermined the prosecution case or 17 assisted the defence case. It included things 18 that now are recognised within the present 19 version of the Attorney General's Guidelines are 20 standard disclosure, for example interview 21 tapes. 22 Q. Did this position change across the relevant 23 period, ie did the 2010 policy change have any 24 effect on the practice adopted of saying 25 everything is not disclosable? 185 1 A. Not that I could see, no. 2 MR BEER: Sir, thank you. I'm about to move to 3 topic 8, cross-disclosure of Horizon issues. 4 I wonder whether that might be an appropriate 5 moment to break for the day? 6 SIR WYN WILLIAMS: Certainly. 7 All right, thank you very much for answering 8 all those questions, Mr Atkinson. I will see 9 you in the morning, 10.00 tomorrow? 10 MR BEER: Yes, please, sir. Thank you very much. 11 SIR WYN WILLIAMS: Fine. 12 MR BEER: Thank you. 13 (4.31 pm) 14 (The hearing adjourned until 10.00 am 15 on the following day) 16 17 18 19 20 21 22 23 24 25 186 I N D E X RICHARD DUNCAN ATKINSON KC (sworn) ............1 Questioned by MR BEER .........................1 187