1 Tuesday 30 April 2024 2 (9.45 am) 3 MR STEVENS: Good morning, sir, can you see and hear me? 4 SIR WYN WILLIAMS: Yes, I can, thank you. 5 MR STEVENS: Thank you. We'll be hearing from Mr Flemington 6 this morning. 7 SIR WYN WILLIAMS: Yes. 8 HUGH MEYRICK FLEMINGTON (sworn) 9 Questioned by MR STEVENS 10 MR STEVENS: Please could you state your full name. 11 A. Hugh Meyrick Flemington. 12 Q. Thank you for providing evidence to the Inquiry today 13 and also for providing a detailed written statement. 14 I want to turn to that statement, it should be in 15 a bundle of documents in front of you. Do you have 16 that, dated 9 March 2024? 17 A. Yes, I do. 18 Q. It runs to 195 paragraphs? 19 A. Yes. 20 Q. Can I ask you, please, to turn to page 47 of the 21 statement? 22 A. Yes. 23 Q. Do you see your signature? 24 A. Yes, I do. 25 Q. Can I ask you to confirm whether the contents of that 1 1 statement are true to the best of your knowledge and 2 belief? 3 A. Yes, it is. 4 Q. For the transcript, that is document reference number 5 WITN08620100. That now stands as your evidence in the 6 Inquiry, it will be published on the Inquiry's website 7 soon. I'm going to ask you some questions about it now. 8 Just start with your background, is it right you 9 qualified as a solicitor in 1996? 10 A. Yes. 11 Q. In terms of what's relevant to this Inquiry you were 12 employed by Royal Mail Group as a lawyer in the Group 13 Tech and IP Team in June 2009? 14 A. Yes. 15 Q. Before then you practised as a solicitor, both in firms 16 and in-house, in the areas of mergers and acquisitions 17 and in other commercial matters? 18 A. Yes. 19 Q. As I say, you started in Royal Mail Group in 2009, you 20 became Head of Legal for Post Office Team in Royal Mail 21 Group in August 2011 -- 22 A. Yes. 23 Q. -- so still within the Royal Mail Group but on the Post 24 Office Legal team. Your evidence is that, at that 25 point, the Post Office Legal Team was only dealing with 2 1 non-contentious matters; is that correct? 2 A. Yes, yes. 3 Q. So the conduct of civil and criminal litigation fell to 4 a different team within the Royal Mail Group? 5 A. Yes. 6 Q. When Post Office Limited separated, so 1 April 2012, you 7 transferred to Post Office Limited as an employee? 8 A. Yes. 9 Q. At that point, the Post Office Limited Legal Team became 10 responsible for civil and criminal litigation? 11 A. Yes. 12 Q. At that point, you reported to Susan Crichton? 13 A. Yes. 14 Q. Your responsibilities as Head of Legal, were they ever 15 written down in a single document? 16 A. I believe I would have had a contract of employment, 17 obviously, and the Head of Legal role would have been 18 defined somewhere. 19 Q. So defined somewhere but can you recall roughly what 20 those responsibilities were? 21 A. It would be in relation to managing the team of lawyers, 22 managing the budgeting, managing them from a personal -- 23 personnel point of view. 24 Q. Would that have included managing lawyers responsible 25 for criminal and civil litigation? 3 1 A. So there's an important distinction to make here, which 2 is that it would be managing them from a personnel point 3 of view but, in terms of supervising the litigation, 4 that was to be done by Susan Crichton. 5 Q. We'll come back to that in due course. The reporting 6 lines: were you the only Head of Legal at this point or 7 were there others? 8 A. Yes, I was the only Head of Legal from when I was 9 appointed in 2011. 10 Q. In due course, were there additional Heads of Legal 11 appointed when you were there? 12 A. Not when I was there. 13 Q. I want to come to the first topic, which is a few 14 matters in 2010 concerning audit data and the first 15 point is Track II data? 16 A. Mm-hm. 17 Q. Can I start, please, with POL00416959. This is a letter 18 addressed to you, dated 12 February 2010 from Stephen 19 Dilley at Bond Pearce, who became Bond Dickinson and 20 then Womble Bond Dickinson. 21 A. Yes. 22 Q. If we can just go down slightly. It talks about 23 potential deletion of Track II data. We see in the 24 first paragraph under background, it states: 25 "... Track II data contains the 15 to 19 character 4 1 primary account numbers relating to customer 2 transactions, expiry date of the card, information about 3 what the card can be used for and how it should be 4 handled at the point of payment and other discretionary 5 data." 6 So this is all personal data relating to customers' 7 debit and credit card transactions; is that right? 8 A. I believe so. 9 Q. It goes on to say that: 10 "You believe that Track II data has to be destroyed 11 to comply with PCI DSS." 12 Just pausing there, does that stand for Payment Card 13 Industry Data Security Standards? 14 A. I can't recall. 15 Q. Do you recall what it was in lay terms? 16 A. In lay terms, it would be the rules that the PCI 17 operated, that you had to abide by if you took card 18 payments in your business. 19 Q. So PCI being the Payment Card Industry? 20 A. Yes. 21 Q. So there was presumably, at the time, or at least Post 22 Office believed there was a need to comply with PCI 23 standards to delete this Track II data? 24 A. Yes. 25 Q. If we go down to "Fujitsu's advice", it says: 5 1 "Fujitsu's corporate legal counsel, Jean-Philippe 2 Prenovost, has stated in his email of 12 February 2010 3 to you that if Track II data is destroyed, Fujitsu would 4 not be able to testify that historical data is true, 5 accurate and (crucially) unchanged." 6 You account some matters to clarify, such as the 7 reliability of the system, et cetera. That document can 8 come down for the time being, it's just for background. 9 So setting the scene for track data, effectively the 10 Post Office wanted to delete data that wasn't essential 11 for branches' transactions or the branch accounts. 12 A. So there was a PCI compliance audit done, I believe and, 13 as part of that, it was found that the system held 14 Track II data, as I recall, and the PCI expert said that 15 that was counter to the PCI rules. 16 Q. Yes, so going to my question, which was deleting this 17 data, it wasn't data on which the branches relied to 18 generate their branch accounts? 19 A. I can't -- I wouldn't have known and I can't recall what 20 kind of data it would have been. 21 Q. Well, if you're asking to delete data that was relevant 22 to the generation of branch accounts, that would seem 23 quite surprising, wouldn't it? 24 A. At the time, I would have just known that there was this 25 data that we held and the question in front of me was 6 1 "Can we delete it or not", and I was told that there was 2 a risk of deleting it in relation to the Horizon cases. 3 Q. Well, let's go to the next document. It's FUJ00230908. 4 If we could go to the bottom of page 1, please. We 5 see there's an email there from Gareth Jenkins on 6 17 February 2010. Carry on down to the bottom, please. 7 That's fine, thank you. 8 "Geoff/Suzie, 9 "My suggested answers to most of the questions below 10 prefixed [GIJ] in bold italics lower down in the email 11 trail". 12 If we can go down to that, it's page 4, please. 13 Yes, that's great. Thank you. We see your email of 14 15 February to Jean-Philippe Prenovost, and you 15 describe: 16 "Below is the magic list of questions compiled from 17 a few people today since our call this morning. Would 18 Fujitsu be able to get us responses by close of play on 19 Friday [please]?" 20 If we could go down a bit further, please, we see at 21 (1) the question is: 22 "Before Track II data is deleted, would Fujitsu be 23 able to say precisely what impact the deletion would 24 have eg what additional data would also be deleted or 25 amended and if so, how it would be amended." 7 1 There's a lengthy explanation there from Gareth 2 Jenkins towards the end saying: 3 "The result of this is that the audit of the 4 original message would be changed and it would no longer 5 be possible to assert it has not been changed since 6 originally recorded. Also the revised audit file would 7 need to be resealed again indicating that it has not 8 been tampered with since the time of the 'official' 9 change." 10 So, at this time, do you recall if this message was 11 passed on to you? 12 A. I don't recall. I remember that the sort of list of 13 questions would have come from the PCI consultant. 14 Q. Right. 15 A. So I didn't have a technical knowledge of what was being 16 asked or what the discussions were around the data. 17 Q. Were you broadly aware that -- well, firstly you're 18 trying to delete this Track II data, you're aware of 19 that? 20 A. So there was a proposal of should we delete the Track II 21 data, and it was trying to find out is there an issue 22 with deleting that Track II data? 23 Q. Could it affect other data -- 24 A. Yeah, yeah. 25 Q. -- which we'll come to in a second, what that other data 8 1 was. You were presumably aware that the concern was 2 that, if other data in the audit files was disturbed, it 3 could affect Post Office Limited's ability to bring or 4 defend claims concerning subpostmasters? 5 A. So at the highest level, it was explained to me that, if 6 you did something with this data, there might be a risk 7 that it would prejudice the ability to bring those 8 cases. 9 Q. Right. 10 A. But I didn't understand the detail of that. 11 Q. If we can turn the page, please, to page 6 and if we 12 could go to the bottom, please. We see, paragraph 5: 13 "What is the probability that the deletion would 14 affect the data contained in the following?" 15 It includes data relating to cash receipts from 16 branch, data relating to transactions and, in 17 particular, "Data relating to transactions says": 18 "These may be affected if they are card related." 19 I think you said you can't remember in detail if you 20 received these answers to the questions. Given these 21 were important questions, would you have followed up on 22 this and got answers to them? Do you think that's 23 likely? 24 A. It's possible, yes. 25 Q. Do you think it's likely? 9 1 A. I don't know because I can't say for certain whether 2 what then happen would have been a call between the PCI 3 consultant and Fujitsu. This was all very technical and 4 I wouldn't have understood what they were talking about, 5 necessarily, in terms of all the different types of data 6 or the implications. So I would have spoken to the PCI 7 consultant about it. 8 Q. Did you understand, let's go back and understand this 9 much: firstly, that it was possible for Fujitsu to 10 delete data that was in the audit file? 11 A. I'm not sure I would have understood that point, no. 12 Q. Well, let's -- you were here talking about what the 13 effect of deleting Track II data would be. If Fujitsu 14 couldn't delete the data, do you think the simple answer 15 would be "We don't need to answer all these questions, 16 we can't delete the Track II data"? 17 A. Yes, I wouldn't have necessarily thought about that but, 18 yes. 19 Q. So, if you'd turned your mind to it, at least, you 20 accept that you must have been aware that Fujitsu could 21 delete files within the audit record? 22 A. Or that it might be possible, I don't -- 23 Q. It might be possible? 24 A. Yeah. 25 Q. In this case, what was being suggested is -- let's call 10 1 it a legitimate deletion, Post Office is considering 2 a proposal to delete data from the audit files for data 3 protection purposes and to comply with this PCI 4 guidance? 5 A. Yes, it was driven by complying with the PCI rules. 6 Q. But Post Office was aware that, in doing that, there was 7 a risk to the integrity of the remainder of the data in 8 the audit file? 9 A. So, as I understood it from my non-technical 10 understanding, it was expressed that there was 11 a possibility it would be harder to bring cases on the 12 Horizon issue if this data was touched at all. 13 Q. That understanding you have, did you share that with 14 others on, say, ExCo, the Executive Committee? 15 A. The PCI matter, I was reporting to Susan Crichton on it, 16 as my line manager, and it's likely that the consultant 17 was working as part of the CIO's team. 18 Q. Would you, do you personally know if this was brought up 19 at Board level? 20 A. Can't recall. 21 Q. Do I take it from that that you didn't discuss with 22 anyone on the Board about this PCI issue? 23 A. I can't recall that or any paper on it. 24 Q. I want to go to the second topic on audit data, 25 concerning duplicate transactions. Please can we bring 11 1 up FUJ00121097. Could we turn to page 2, please, and 2 the email towards the bottom, the -- yes, that's it. 3 Thank you. 4 So this is an email from Penny Thomas, dated 30 June 5 2010, and one which has been seen by the Inquiry before. 6 It's sent to Sue Lowther, Mark Dinsdale and Jane Owen. 7 Do those names ring a bell to you? 8 A. Mark Dinsdale, because he comes up in one of the other 9 documents in the bundle, but not the others. 10 Q. I won't ask the others you don't remember but Mark 11 Dinsdale, was he in your line management chain at all? 12 A. He wasn't anything to do with Legal, I remember that. 13 Q. It says: 14 "We have identified that number of recent ARQ 15 returns contain duplicate transaction records." 16 It goes on to explain how that's happened, that the 17 HNG-X retrieval mechanism does not remove duplicates. 18 Now, you're aware -- well, let's rephrase that, sorry. 19 Were you aware at the time about ARQ and audit data 20 being used for civil proceedings and prosecutions? 21 A. No. My technical knowledge wouldn't have known anything 22 about that kind of thing. 23 Q. Well, this is June 2010 and we saw earlier, when 24 relating to the PCI matter, you were raising questions 25 about audit data and Post Office ability rely on it in 12 1 criminal and civil proceedings. Are you saying you 2 weren't aware of -- 3 A. So the questions that I was raising in PCI would have 4 been provided by the PCI consultant. I wouldn't have 5 understood all the technical things that they were 6 talking about. 7 Q. Would you say that's particularly technical, the fact 8 that Post Office were relying on audit data for civil 9 and criminal proceedings? 10 A. So I wouldn't know what data they were relying on, just 11 that there was some data that was important to the 12 criminal cases. 13 Q. Let's move on. If we turn to page 1, please, of this. 14 Penny Thomas' email of 2 July says: 15 "I have just completed a conference call with Mark 16 Dinsdale, Alan Simpson and Jane Owen." 17 Five bullet points down, it says: 18 "I talked them through the ARQs affect list and 19 asked that they confirm whether the West Byfleet and 20 Porters Avenue ..." 21 Pausing there, do those, West Byfleet and Porters 22 Avenue, ring any bells for you? 23 A. No. 24 Q. West Byfleet and the Seema Misra trial, does that -- 25 A. So the name "Misra" rings a bell. 13 1 Q. "... where the only cases listed where it progressed to 2 Court ... 3 "I asked them to confirm whether transaction records 4 of West Byfleet had actually been presented at Court or 5 whether records had only been passed to the defence 6 expert ..." 7 So there appears to be a discussion here on how the 8 affect of these duplicate records in the audit data had 9 affected any court proceedings. Were you made aware of 10 this at the time? 11 A. I can't recall that. I wasn't involved in any of the 12 criminal litigation, so it's unlikely that I'd have been 13 given any information about the cases. 14 Q. We'll come to that shortly. So let's put ourselves in 15 the Legal Team. On the one hand, earlier in the year 16 you were dealing with an issue relating to audit data 17 for PCI? 18 A. Yes. 19 Q. Later in the year, there's an issue about audit data for 20 these duplicate transactions and your evidence is that 21 you weren't aware of this later duplicate? 22 A. No, I can't recall that at all. 23 Q. Pausing there, within the Legal Team, what level of 24 discussion was there about matters between, say, the 25 Civil Litigation Team and your team which was 14 1 relating -- was it IP and IT? 2 A. So, if you're talking about 2010 -- 3 Q. Yes. 4 A. -- I was in the Post Office Legal Team at that point and 5 there's about four lawyers and Susan Crichton. 6 Q. Yes. 7 A. The IP/IT Team at Royal Mail is separate, the Criminal 8 team is separate, and they're based at two other 9 different offices. 10 Q. So there is an entirely separate office? 11 A. Yes. 12 Q. The Criminal Team is a physically separate office from 13 where you are? 14 A. So the Criminal Team sat in a physically separate office 15 on its own. The Royal Mail IP/IT Team and Royal Mail 16 Civil Litigation Team sat in a Royal Mail office and 17 then Post Office Legal was in a third office at the Post 18 Office Headquarters. 19 Q. So is it fair to say that day-to-day discussions, the 20 Post Office Legal team, your evidence is, didn't really 21 have much communication with the Civil Litigation or 22 Criminal Litigation team? 23 A. No, no. 24 Q. Well, let's move to look at that and some of the 25 response to problems raised regarding Horizon. We don't 15 1 need to turn this up but in page 12, paragraph 52 of 2 your witness statement, I think your evidence is you 3 don't recall specifically reading the May 2009 Computer 4 Weekly article; is that right? 5 A. That's right. 6 Q. But you can remember hearing reference to it? 7 A. Yes, and in the additional bundle of documents that 8 I was given, I belief there's a reference to being told 9 about in early 2010. 10 Q. Can you recall about your views were of the allegations 11 raised when you first heard of them? 12 A. I think when I first heard of them it was in the context 13 of PCI Track II and the criminal lawyer was explaining 14 to me that criminal cases existed and there had been 15 some noise in an article in Computer Weekly. 16 Q. Can I ask, when you say the "criminal lawyer", who was 17 that? 18 A. That was, I believe, Juliet McFarlane. It's in the 19 additional bundle of documents, I think around January 20 2010. 21 Q. So you say "some noise", was that the words used? 22 A. That's my word. That would have been -- in her email 23 she talks about there being criminal cases and that 24 there are some allegations about the Horizon computer 25 system. 16 1 Q. Did you take them seriously at that time? 2 A. Yes. 3 Q. When you said "some noise", do you think the use of the 4 phrase "some noise" indicates that you're taking it 5 seriously or that the complaints had merit? 6 A. Sorry, that was just words I came out with at this point 7 in time. 8 Q. Do you recall around this time, so 2010/2011, whether 9 there were any discussions of bugs, errors or defects 10 within the Legal team, beyond the Computer Weekly 11 article? 12 A. So there were the allegations, I think, in terms of the 13 civil cases and I think -- 14 Q. Are you referring to the Shoosmiths litigation? 15 A. I'm -- I'm thinking, I think there was a Mandy Talbot 16 email, in the additional bundle, of 7 October. 17 Q. We'll come to some of those shortly. 18 A. But I can't recall whether there was earlier mention of 19 the civil cases. 20 Q. Did Susan Crichton ever discuss bugs, errors and defects 21 with you? 22 A. I can't recall, no. 23 Q. Let's look at some of the emails on the response to 24 Horizon challenges. Can we start, please, with 25 FUJ00156122. If we could go to page 7, please. So 17 1 an email from Mandy Talbot on 17 February 2010 to David 2 X Smith, Head of Change and IS, at that point. Do you 3 recall what team Mandy Talbot was in at the time? 4 A. So she was in the Royal Mail Civil Litigation Team. 5 Q. So separate building -- 6 A. Yes. 7 Q. -- separate team? 8 A. Yes. 9 Q. Okay. It says: 10 "Has [Post Office Limited] received requests like 11 this [referring to the email below] and if so has it 12 responded to them? Does the business in principle have 13 any objection to meeting with a 'computer expert' and 14 explaining to him how the system works. Possibly even 15 showing him the data." 16 If we go to, starting with the bottom of page 5, we 17 see David X Smith's response there. Over the page it 18 says: 19 "As long as the argument is carried out on the level 20 of what could happen, then we will always struggle to 21 win it. Our greatest chance of winning the argument 22 case by case is to fix the debate on what actually 23 happened." 24 It goes on to refer to two cases, the first being 25 Cleveleys. It says: 18 1 "In the case referred to as Cleveleys an independent 2 expert was appointed. Unfortunately [Post Office 3 Limited] and Fujitsu did not manage this spectacularly 4 well and probably fielded the wrong people or at the 5 very least insufficiently briefed people. I read the 6 so-called expert's report and I have to say it was far 7 from the professional effort I would have expected." 8 Pausing there, were you aware of the Cleveleys case 9 at the time in 2010? 10 A. No. 11 Q. No? 12 A. No. 13 Q. Did you become aware of the Cleveleys case at any point 14 whilst you were at Post Office Limited? 15 A. I can't recall but I don't think so. 16 Q. If we could carry on to page 2, please. An email from 17 Gareth Jenkins on 25 February, it says: 18 "Suzie/Tom 19 "Please see email trail below. This is another 20 example of postmasters trying to get away with 'Horizon 21 has taken my money'. Dave Smith seems to have put me 22 forward as the expert to go to on this." 23 Then over on page 1, please, the response says: 24 "Gareth, I have asked JP to liaise with Hugh 25 Flemington on this -- don't reply at the moment. I'll 19 1 let you know in due course how we are going to handle 2 this." 3 Do you recall what involvement you had with this 4 matter, namely whether Gareth Jenkins was going to be 5 instructed to give expert evidence. 6 A. No, I was surprised when I saw this and I think that the 7 Fujitsu account manager would have had my name in mind 8 because I'd been asking about Track II and, if I'd have 9 got contacted by JP, I'm sure I would have, once 10 realised it was about a Mandy Talbot matter, I would 11 have pointed him in the direction of Mandy Talbot. 12 Q. At that point, do you recall any conversation with 13 either Mandy Talbot or with Fujitsu, people at Fujitsu, 14 regarding Post Office Limited's request for expert 15 evidence? 16 A. No. I wasn't involved in those cases and there would be 17 no reason for me to be. 18 Q. So your evidence is it's simply a misdirected email? 19 A. Yes. 20 Q. Nothing further to do with you? 21 A. Yes. 22 Q. Please can we go to POL00409718. So this is October 23 2010, 7 October 2010. We've an email from Mandy Talbot, 24 it's to Susan Crichton. We know she was sort of sitting 25 at the top of the tree, essentially, for the Post Office 20 1 Limited matters? 2 A. Yeah. 3 Q. There's you and Jessica Madron. Do you remember who 4 Jessica Madron was? 5 A. She was Post Office Legal lawyer that worked on 6 subpostmaster contracts. 7 Q. So, at this point, was she level with you in seniority? 8 A. She was, I think, level with me in seniority at this 9 point. She had been there longer, much longer. 10 Q. She'd been there longer but, in terms of your actual 11 postings, you were level? 12 A. I can't recall the precise clarifications, I'm afraid. 13 Q. It says: 14 "Dear All 15 "We need as an organisation to determine how best to 16 deal with all the cases where allegations are being made 17 about Horizon and where there is money owed by the 18 former postmasters to the business." 19 Why were you being brought into this email at this 20 stage? 21 A. I don't know. I can't recall. 22 Q. Well, let's pause there. Mandy Talbot is in the Civil 23 Litigation Team at Royal Mail? 24 A. Yes. 25 Q. She must have an understanding of where responsibilities 21 1 lie for issues such as civil litigation within the 2 group? 3 A. Yes. 4 Q. She's emailed a relatively small distribution list of 5 three people, correct? 6 A. Correct. 7 Q. Can you explain why Susan Crichton was included in that 8 list? 9 A. I would assume because she was head of the POL legal 10 operation at that point. 11 Q. Was it actually the case that you were included because, 12 with working on the Post Office Limited team, you were 13 being involved in determining the strategy for 14 responding to Horizon challenges? 15 A. So I can't recall being involved in that strategy. When 16 I saw this, I thought it was possible that I'd been 17 included because we were starting to plan for 18 separation. 19 Q. Why would that be a reason for you to be included? 20 A. So, at separation, we would have to take civil 21 litigation cases on. 22 Q. So that's including you not in terms of advising on the 23 separation itself but almost in preparation for your 24 work to come? 25 A. Yes, in terms of planning for separation. 22 1 Q. Yes. So -- 2 A. But not me taking on civil litigation or being involved 3 with civil litigation. 4 Q. So is your evidence at this stage that, again, this was 5 just an email sent to you and you weren't involved in 6 insisting with Post Office Limited strategy on 7 responding to Horizon litigation? 8 A. Correct. I can't recall being involved in that. 9 Q. Sorry, you can't recall that or are you firmly saying 10 you -- well, let me rephrase that, sorry. 11 Is your evidence you can't recall being involved in 12 the response to Horizon challenges or your evidence is 13 that you're positively saying that you weren't involved? 14 A. I can't recall but it would be very unlikely. 15 Q. If you could just go down, please, to include the 16 paragraph starting "Number 1". It says: 17 "... should we wait until the conclusion of the case 18 of Misra which is currently going through the criminal 19 courts." 20 You said you're now aware of the case of Misra, 21 Seema Misra. 22 A. So, I was aware of the name because, right at the 23 beginning of 2010, Fujitsu emails me, probably because 24 I'd been dealing with a Track II issue, and asked me did 25 I know who was dealing with a case called Misra? So 23 1 I found out who that lawyer was and I told the Fujitsu 2 lawyer who'd asked me. So that was my involvement with 3 Misra. 4 Q. Further on in this paragraph, it says: 5 "Assuming that the case is concluded within that 6 time period, some of the issues set out below will fall 7 away but if it is adjourned or we lose it the following 8 points will become relevant. Misra is the prosecution 9 case involving Issy Hogg, one of the lawyers used by 10 Postmasters for Justice. If the prosecution is fully 11 successful it will make the civil claims much easier to 12 deal. With if the prosecution is only partially 13 successful then it is likely to make the civil claims 14 very difficult to proceed with if we cannot rely on the 15 Horizon data." 16 Can you recall any discussion about whether the 17 Misra case was being used as a test case? 18 A. No, I can't. 19 Q. Can we please look at POL00055590. If we can go to the 20 bottom, please. This is an email from Mandy Talbot 21 again on the 21 October. You're first, it says, "To: 22 Hugh Flemington". It says: 23 "I have been made aware of the fact that many of us 24 are on annual leave next week because of half term. In 25 the circumstances it seems likely that we will have to 24 1 reschedule again. Please accept my apologies for this. 2 I will get my secretary to reschedule." 3 The subject is "Horizon". 4 So, at this point, on 21 October 2010, so a few 5 weeks after the email we just went to, Mandy Talbot 6 appears to be still trying to get you to attend 7 a meeting on Horizon. 8 A. I can't recall any such meeting or going to any such 9 meeting. 10 Q. But would you accept that you were -- again, what 11 appears to be happening is you are being -- or Mandy 12 Talbot is trying to bring you into and involve you in 13 discussion on Horizon matters? 14 A. Yes, trying to. But I can't recall where that went. 15 Q. Well, if we look up, please, to the Jarnail Singh email, 16 this is a well-known email to the Inquiry, you received 17 this, we can see, on 21 October. Do you recall 18 receiving this? 19 A. I do, because of the language used and the tone. 20 Q. What was it about the language used and the tone that 21 struck you? 22 A. Things like the word "destroy". I thought that was 23 emotive. 24 Q. Did you think it was appropriate for a legal 25 professional to use this language? 25 1 A. I thought it was over the top. 2 Q. This is an email -- as you see, it says, "Marilyn 3 Benjamin on behalf of Jarnail Singh". Were you aware of 4 Jarnail Singh as a lawyer at that point? 5 A. No, other than his name when I provided it to Fujitsu 6 back in 2010. 7 Q. Did you form a view about Jarnail Singh at this time? 8 A. No, I would have just thought it's an email which uses 9 emotive language. So I'd have been surprised by it but 10 I wouldn't have formed a view on him. 11 Q. We see Ms Talbot was trying to organise some sort of 12 meeting about Horizon. Following this email, in the 13 weeks following, can you recall whether Ms Talbot tried 14 to rearrange the meeting again or did that trail run 15 cold? 16 A. I can't recall at all. I believe she may have left the 17 business shortly in 2011. 18 Q. Please can we bring up POL00006484. This is a note of 19 conference at Maitland Chambers with Richard Morgan QC, 20 as he was. Susan Crichton and you are listed in 21 attendance from Post Office Limited. Do you have any 22 recollection of this conference? 23 A. I vaguely recall it, yes. 24 Q. This was before the announcement of the Second Sight 25 investigation? 26 1 A. Yes. I think so. 2 Q. Were you aware at that point that there was 3 consideration being given for an independent auditor or 4 expert such as Second Sight to produce a report on the 5 system? 6 A. Yes. I think I was. 7 Q. Who told you about that? 8 A. Susan Crichton. 9 Q. So it's arranged to consider, we see, Horizon 10 litigation, and it says: 11 "The proposal to instruct an independent expert to 12 prepare a report on the Horizon system is the highest 13 risk response to the issue." 14 Now, at this point, there's also civil litigation 15 potentially in the frame from Shoosmiths. 16 A. Mm-hm. 17 Q. Can you recall if this paragraph is referring to 18 an independent expert such as Second Sight or the Second 19 Sight exercise, or is this is an independent expert to 20 address the specific civil proceedings brought against 21 Post Office Limited? 22 A. I couldn't recall. 23 Q. You say in your statement -- we don't need to bring up 24 it up on the screen but it's page 15, paragraph 56, and 25 this was in September 2011, I should say -- the 27 1 understanding at Royal Mail Group and Post Office at 2 that time was that the system was robust, so it was 3 logical and important that these claims be defended; 4 that's your evidence? 5 A. Right. 6 Q. On what basis did you understand the system to be robust 7 at this stage? 8 A. Was that -- did you say September 2011. 9 Q. That was September 2011, yes. 10 A. So there had been, I think at that point, possibly the 11 Rod Ismay report on the system. 12 Q. Pausing there, did you see the Rod Ismay report? 13 A. I can't recall seeing that, no. 14 Q. Well, if you can't recall seeing it how do you know if 15 that was the basis -- 16 A. It would have been, I think, talked about. 17 Q. It was talked about? 18 A. Yes. 19 Q. Yes? 20 A. And the message was from, I think, the Civil Litigation 21 Team that the system was robust -- from the CIO team, 22 that the system was robust. 23 Q. So your basis for believing the system was robust came 24 from colleagues telling you as such? 25 A. Yes, I'm trying to recall if there was any further 28 1 detail. I think it was the stance at the business that 2 it was robust. 3 Q. We've seen a couple of occasions here referring to 4 an independent expert and the documents I took you to 5 before, members of the Legal Team considering whether 6 independent expert evidence was necessary or desirable, 7 correct? 8 A. Do you mean in terms of the conference with counsel in 9 2012 here? 10 Q. Well, yes, here and the documents I took you to earlier, 11 which showed querying whether an expert input was 12 required, the emails from Mandy Talbot. 13 A. Yes, sorry, yes. 14 Q. Why was the Legal Team considering whether expert 15 evidence was required on a regular basis? 16 A. I don't know. I don't know. I wasn't involved with 17 those Civil Litigation Team or the Criminal Team. So 18 how they were approaching it was very much down to them. 19 Q. At this point, when you are involved in the conference, 20 what, if any, internal investigation did the Legal Team 21 do to understand what documents Post Office Limited held 22 that were relevant to the issue of whether Horizon was 23 robust or not? 24 A. I can't recall, but Mr Singh and Susan Crichton were 25 running the criminal litigation at that time, so I would 29 1 have expected them to consider that issue. 2 Q. So that's their issue, you say, not for you. So why 3 were you attending the conference, then, if it wasn't 4 for you? 5 A. I think I'd been asked by Susan Crichton to turn up at 6 the conference, possibly because she wanted another 7 view. We only had a Bond Dickinson secondee who was 8 doing civil litigation, possibly also because it was the 9 holiday season and, therefore, Second Sight might be 10 appointed shortly and she wanted coverage, someone else 11 who knew what the issues were. 12 Q. Did you turn your mind to thinking whether you should 13 look for documents held by Post Office that were 14 relevant to the integrity of the Horizon IT System? 15 A. I would have assumed that Mr Singh was dealing with that 16 and doing that very thing. 17 Q. At that time, were you aware of a Problem Management 18 Team within Post Office Limited? 19 A. Sorry, could you repeat the question? 20 Q. Were you aware of the Problem Management Team within 21 Post Office Limited? 22 A. I can't recall that no. 23 Q. Did you have any knowledge of something called the KEL 24 database or the Known Error Log? 25 A. No. 30 1 Q. Please can we turn to POL00107760. If you could go down 2 the page, please. This is an email from Jason G 3 Collins; do you remember who that was? 4 A. No. 5 Q. 10 August 2012, he says: 6 "Are speaking with Andy Garner today ..." 7 Do you remember who Andy Garner was? 8 A. No, I remember the name but not who he was. 9 Q. "... I asked him to draw together the email below to 10 enable me to forward to you for sight/advice. My 11 understanding is that all matters 'Horizon' should pass 12 through you before any agreed actions to support wider 13 activity is made." 14 Were you, at this point, the point of contact, 15 essentially, in the Legal Team for Horizon matters? 16 A. Not that I can recall, I was surprised when I saw this 17 email, because I cannot remember being badged as such. 18 Q. Can you explain why Mr Collins would have been 19 misunderstood on that issue? 20 A. He may have been given a mis-steer by Mr Garner. I had 21 worked with Mr Garner before. I can't remember in what 22 context but he would know me, so he might have thought 23 that he was -- I was the person he knew in the Legal 24 team and that Jason should reach out to me. 25 Q. Was there a sin point of contact for Horizon issues at 31 1 this time, within the Legal Team? 2 A. I can't recall, sorry. 3 Q. Could we look, please, at POL00 -- sorry, sir? 4 SIR WYN WILLIAMS: Yes, by this time, of course, 5 Mr Flemington, separation had occurred, had it not? 6 A. Yes, that was on 1 April. 7 SIR WYN WILLIAMS: So no doubt there were processes being 8 put in place for dealing with these issues within Post 9 Office Limited, as opposed to Royal Mail? 10 A. Yes, I believe so. Unfortunately, my father passed away 11 unexpectedly on 1 April, so the first three or four 12 weeks I wasn't around in the business. 13 SIR WYN WILLIAMS: Well, I'm sorry to have heard that but 14 I wasn't being critical; I was just seeking 15 an explanation for why you may have been included in 16 things because this was all new, in reality, wasn't it? 17 A. Well, I was about to say that Susan Crichton and Jarnail 18 Singh would have been sort of working up and setting up 19 the criminal prosecution side of things in those few 20 weeks. I know that there had been some of the MPs 21 reaching out by this time and that was driving 22 a discussion about would a Second Sight sort of 23 independent review be created. 24 And, as I said, I was surprised when I saw myself 25 being badged in this email as "all matters Horizon 32 1 should go through Hugh". It may have been they were 2 aware that I was being involved in the Second Sight 3 thing, such as the conference with counsel, by Susan 4 Crichton. 5 SIR WYN WILLIAMS: Well, it may be no more and no less than 6 you were the Head of Legal, officially, and Susan 7 Crichton was your boss and she's copied into it. 8 A. Yes, yeah. 9 SIR WYN WILLIAMS: All right. Fine. 10 MR STEVENS: So rounding off those emails, Mr Flemington, 11 that you've been taken to, we see in your evidence, 12 actually, it's page 5, paragraph 21, please -- thank 13 you -- you say: 14 "My involvement with Horizon was initially sporadic 15 and peripheral ..." 16 You refer to a specific example there relating to 17 resourcing for Jon Longman. You say: 18 "... sporadic and peripheral ... until the ... end 19 of June 2013 when, before going on sabbatical from 20 12 July to around 3 September ... I became involved in 21 the response to emerging issues regarding Horizon." 22 So, having gone through those documents -- just to 23 summarise -- your evidence is, whilst you may have been 24 copied in on various things or taken to conference, you 25 weren't involved, actually, in the strategy -- 33 1 A. No. 2 Q. -- of responding to Horizon matters? 3 A. It was a very ad hoc engagement. 4 Q. Secondly, at least following separation at least, your 5 evidence is that responsibility lay within the Legal 6 Team -- 7 A. Yes. 8 Q. -- with Susan Crichton and Jarnail Singh? 9 A. Yes. 10 Q. Thank you. That can come down, thank you. I want to 11 look at a different topic now and it's the issue of how 12 criminal matters were dealt with in the department. You 13 say candidly in your witness statement that you had very 14 little civil litigation experience? 15 A. Mm-hm. 16 Q. Did you have any criminal litigation experience? 17 A. No. 18 Q. Presumably you were aware or you say you became aware, 19 sorry, of prosecutions being made by Post Office in 2010 20 or 2011? 21 A. It's 2010, it's mentioned. It's that Track II PCI. 22 Q. So it's that point when you're aware, yeah? 23 A. Yeah, but literally of their existence, not any detail. 24 Q. When we get to 2012 and separation, we'll come to the 25 precise scope of it, but you take over line management 34 1 of Jarnail Singh? 2 A. Yes. 3 Q. I want to just go over a couple of issues on your 4 knowledge of criminal law. Presumably you were aware of 5 the criminal standard of proof, convincing the jury such 6 that it's sure of guilt? 7 A. So, in terms of the criminal side of criminal cases to 8 be taken by POL Legal, I had already agreed with Susan 9 Crichton that, because I had no knowledge of criminal 10 law, I felt unable to supervise Jarnail Singh on 11 criminal matters. 12 Q. I will come to that in a moment but, if we can just go 13 through what your knowledge of criminal -- a few matters 14 of criminal law. Firstly, were you aware that Post 15 Office Limited, if it brought a prosecution, had to 16 convince a jury such that it was sure of guilt? 17 A. I was aware that we would have certain duties but I was 18 totally reliant on Mr Singh advising correctly on those. 19 Q. Okay, I'll ask it again. Were you aware of the criminal 20 standard of proof -- 21 A. I cannot recall being specifically aware of that. 22 Q. You say you were aware of certain duties. Presumably 23 you would have known that there was a duty of disclosure 24 on Post Office when it prosecuted cases? 25 A. I recall a duty of disclosure being talked about by 35 1 Mr Singh or mentioned by Mr Singh in relation to the 2 context of criminal cases. 3 Q. Did you understand that Post Office was required to 4 disclose documents it possessed or had access to that 5 might reasonably be considered capable of undermining 6 the case for the prosecution or of assisting the case 7 for the accused? 8 A. I can't recall what specific knowledge I had on the 9 criminal cases. 10 Q. Were you aware that Post Office owed a duty of 11 disclosure following conviction? 12 A. Again, I can't recall specific awareness. 13 Q. Let's turn -- well, actually, you've said it in 14 evidence, we don't need to turn there, but your evidence 15 on supervision of Jarnail Singh is that you would 16 effectively deal with normal management issues, as you 17 put it? 18 A. Yes. 19 Q. You say it's matters like annual leave and salary 20 reviews? 21 A. Yes. 22 Q. But criminal prosecutions, you say those were supervised 23 by Susan Crichton? 24 A. Yes. 25 Q. Were you aware of what experience in criminal law Susan 36 1 Crichton had? 2 A. I wasn't, no. 3 Q. So, at this point, Susan Crichton, was she responsible 4 for the entire Legal Department? 5 A. Yes. She was effectively the de facto GC. 6 Q. So a much wider remit than you? 7 A. Yes. 8 Q. Ms Crichton's evidence was that she had no criminal law 9 experience. In those circumstances, why would she agree 10 to supervise Mr Singh's work? 11 A. I don't know why she decided to but she did decide. 12 Q. To are you aware of how Ms Crichton supervised 13 Mr Singh's work? 14 A. No. 15 Q. Was, in effect, Mr Singh left to run the prosecutions 16 independently, based on what you're saying, without 17 supervision? 18 A. I couldn't comment on that because I don't know what 19 interaction there was between Susan Crichton and 20 Mr Singh over the criminal prosecutions. 21 Q. Can we turn, please, to POL00141439. If we could start 22 with page 3, please -- sorry, page 2, my apologies, the 23 bottom of page 2. 24 So we see this is an email from John Scott to 25 Jarnail Singh, into which you're copied. 37 1 A. Mm-hm. 2 Q. Do you remember who John Scott was? 3 A. He was the Head of Security, I believe. 4 Q. What working relationship did you have with him? 5 A. So he would have been, I think at the time, reporting 6 into Susan Crichton, as I was. 7 Q. Sorry, I missed that? 8 A. Sorry, I think at the time he was reporting into Susan 9 Crichton alongside me -- myself. 10 Q. So did you have any working relationship with him? 11 A. A little but not a lot. 12 Q. Do you remember on what areas you would work with 13 Mr Scott? 14 A. Only on something like this, if he would appear and make 15 a comment about someone like Mr Singh. 16 Q. We see it says: 17 "Jarnail 18 "Thanks. Can you sent your report ..." 19 So he's referring to an advice on caution: 20 "... with the whole file please, as I like to see 21 the full officer's report, taped interview notes, etc." 22 Next paragraph says: 23 "Your report is also very brief advising a caution 24 and has not sufficiently outlined the case, supporting 25 evidence, discussion around defence options and the 38 1 rationale of why to prosecute or not, or a caution in 2 this particular instance." 3 We don't need to see the rest -- actually, we can go 4 over, please, to the top of page -- thank you. We see 5 it says: 6 "Cartwright King solicitors have set a benchmark in 7 terms of reporting and substance of advice and, for 8 consistency purposes, to ensure decision making is 9 robust, fair and consistent, this level needs to be 10 maintained." 11 If you can go back to page 2, please. Just slightly 12 down, please. Thank you. We see you remain in copy, 13 Jarnail Singh comes back with a few comments and we see 14 John Scott's reply immediately above. It says: 15 "When we discussed this yesterday before I saw the 16 papers you were critical of CK overplaying their writeup 17 (I acknowledge they are commercial and would wish to 18 increase their opportunity). You were defensive of your 19 position, failed to listen and struggled to take on 20 board learning improvements. I keep with my statement 21 below that CK are the benchmark and you've failed to 22 meet it (whether or not this is suitable for 23 caution/prosecution or vice versa and with [Cartwright 24 King]). 25 "I now have concerns in the overall management of 39 1 this part of the process." 2 Why did that criticism of Mr Singh's work come to 3 you? 4 A. I can't say why it came to me, other than John Scott 5 knew me and knew to speak to me. 6 Q. But he would know to speak to Susan Crichton, wouldn't 7 he, if it was known that she was supervising Mr Singh? 8 A. I think he may not have wanted to have raised this in 9 the first instance with Susan Crichton. I remember 10 I went round and spoke to Susan Crichton about this 11 because I thought it was a criticism that would be 12 levelled at her, not me, and I remember, I think, John 13 Scott -- it was discussed with John Scott and it was 14 discussed with Mr Singh, in terms of what might have 15 gone wrong, what could be done differently, et cetera. 16 But this was all with Susan Crichton. 17 Q. So your evidence is you have a specific recollection of 18 discussing this with Susan Crichton? 19 A. Yes. 20 Q. To what extent were you involved in providing advice or 21 anything else on the substance of Mr Singh's work at 22 this point? 23 A. This was probably one of the only points when I got 24 drawn into that. 25 Q. What did you advise or tell Mr Singh to do in respect of 40 1 this? 2 A. I can't remember the specifics of where it came out but 3 I know the matter was thrashed out. 4 Q. Were you concerned with Mr Singh's competence at this 5 point? 6 A. So, at this point, the context for me, I suppose, was 7 that Mr Singh had been as a criminal lawyer in Royal 8 Mail Group for 17 years so he was quite a senior 9 practitioner, he'd been recommended by Rob Wilson. 10 I remember early on he'd mentioned, after separation, 11 that he was organising training for the Investigators 12 and I remember that involved Cartwright King, and 13 I remember Cartwright King, after that, saying to me he 14 was competent. 15 So there were various pointers which said to me, 16 actually, you know, he's -- he knows what he's doing. 17 He's been there a long time. He wouldn't have survived 18 at Royal Mail for 17 years without knowing what he was 19 doing. If I had any concerns, like the one raised by 20 John Scott, I would have flagged it to Susan Crichton. 21 But that's the only one I can remember. 22 Q. Did you discuss with Susan Crichton whether Mr Singh was 23 being appropriately supervised? 24 A. I can't recall whether that discussion happened. 25 Q. This is quite a serious criticism from the Head of 41 1 Security, would you accept that? 2 A. It is but I remember at the time feeling that it was 3 slightly personal, that there was something -- some 4 personal animosity between John Scott and Jarnail Singh. 5 MR STEVENS: Sir, that's probably a good time to take the 6 first morning break, if we can come back at 11.00. 7 SIR WYN WILLIAMS: Certainly. 8 MR STEVENS: Thank you, sir. 9 (10.49 am) 10 (A short break) 11 (11.00 am) 12 MR STEVENS: Good morning, sir, can you see and hear me 13 again? 14 SIR WYN WILLIAMS: I can, thank you. 15 MR STEVENS: Thank you. 16 Mr Flemington, I want to ask you a few questions 17 about the Legal team in Post Office Limited's approach 18 to the devolved nations. Was anyone in the Post Office 19 Legal team qualified in Scots Law -- 20 A. Not that I recall. 21 Q. -- or the law of Northern Ireland? 22 A. Not that I recall. 23 Q. At any point when you were at Post Office Limited, did 24 you have a discussion with anyone in the Legal team 25 about how Post Office Limited handled prosecutions in 42 1 Northern Ireland or Scotland? 2 A. I can't recall specifically, no, although, at some 3 point, it would have been alluded to and talked about in 4 the context of this whole Horizon issue. 5 Q. In the -- sorry, in -- 6 A. In the context of the whole Horizon issue and dealing 7 with the emerging Horizon issue. 8 Q. Are you talking after Second Sight's report, when you 9 say that? 10 A. Possibly, that's where I'm thinking, yes. 11 Q. Do you know how the Post Office Legal Team satisfied 12 itself that it was acting in compliance with the law of 13 Scotland, insofar as it brought prosecutions? 14 A. Not per se, no. That would have been something that 15 I would have assumed that Susan Crichton and Mr Singh 16 were dealing with. 17 Q. Do I take it from that that the same applies for 18 Northern Ireland as well? 19 A. Yes. 20 Q. I'm going to jump forward in the chronology, just whilst 21 we are here. Are you aware of any steps Post Office 22 took to raise issues of Horizon integrity with the 23 Procurator Fiscal -- 24 A. Not specifically that I can recall, no. 25 Q. -- or the Public Prosecution Service? 43 1 A. No. 2 Q. You say in your witness statement that you weren't 3 involved in the instruction of Cartwright King -- 4 A. Mm-hm. 5 Q. -- Cartwright King being an external firm that Post 6 Office Limited relied on for legal advice in relation to 7 criminal matters? 8 A. Yes. 9 Q. Do you know who did instruct Cartwright King? 10 A. I had understood it was Mr Singh or Susan Crichton. 11 Q. Did you take any steps to understand or satisfy yourself 12 as to what Cartwright King's retainer was or its 13 instructions? 14 A. I think I would have asked about its retainer on the 15 return to the office after my -- the burial of my 16 father. It would have been at that point I probably 17 would have looked to see what retainer letter, 18 et cetera, was in place. 19 Q. Do you recall, in broad terms, what they were retained 20 to do -- 21 A. I can't recall. 22 Q. Is this another matter that you say would fall to Susan 23 Crichton and Jarnail Singh? 24 A. Yes. 25 Q. Womble Bond Dickinson was another firm instructed by 44 1 Post Office Limited. 2 A. Yes. 3 Q. When I say Womble Bond Dickinson, I include Bond 4 Dickinson and Bond Pearce, et cetera. 5 A. Mm-hm. 6 Q. Chris Aujard gave evidence that Womble Bond Dickinson 7 were, at times, like an extension of the in-house Legal 8 Team for Post Office Limited; would you agree with that? 9 A. I could see that he might think that, if he's dealing 10 with a particular partner on a regular basis, for 11 example, or a particular fee-earner from Womble Bond 12 Dickinson on a regular basis, in the context of 13 something like Horizon, purely because there were 14 moments when they were probably providing a lot of 15 support to us. 16 Q. In terms of Horizon, what was your working relationship 17 with Womble Bond Dickinson? 18 A. In terms of Horizon issues, I would have dealt with 19 them -- I would have dealt with them when they were 20 engaged on Horizon issues, to the extent I was also 21 engaged on that particular Horizon issue. So, for 22 example, in the 2012 QC con, I believe that might have 23 been arranged with their help and then, in the emerging 24 issue the following year in July, they were obviously 25 involved to a degree in that, and so was I, so I would 45 1 have been involved speaking to them about things then. 2 Q. Did you think the level of reliance on Bond Dickinson 3 was appropriate or usual for a business such as Post 4 Office Limited? 5 A. I didn't at the time think it was unusual or feel it was 6 unusual. We were a growing team. We were originally 7 four, we'd grown to about 12. We weren't allowed to 8 grow more at that point because there were restrictions 9 on the HR template. 10 Q. When you say HR template, is that in terms of headcount? 11 A. In headcount, yeah. So you had to still maintain 12 a degree of externalisation to help support on 13 day-to-day matters. 14 Q. I want to look at some topics now to do with the Second 15 Sight investigation, starting with the effect on 16 prosecutions. Did you receive any instructions about 17 whether or not to continue prosecutions -- sorry, I'll 18 rephrase that. 19 Do you recall receiving any instructions about 20 whether or not Post Office Limited should continue 21 prosecutions of subpostmasters based on Horizon data, 22 once the review by Second Sight had been announced? 23 A. I can't recall, no. Not specifically. 24 Q. Susan Crichton gave evidence in her witness statement, 25 which we don't need to turn up but, for the record, it's 46 1 paragraph 255 of WITN00220100. Her evidence was: 2 "At some point around the time of the separation, 3 I made it clear, including to the Security Team, that no 4 further prosecutions were to be commenced which were 5 reliant on Horizon evidence." 6 Do you recall that instruction being given? 7 A. No, I don't. 8 Q. Can we look, please, at POL00180855. So if we could 9 turn to the bottom of page 2, please, we have an email 10 from Rachael Panter right at the bottom, about the case 11 of Wylie. It says: 12 "As anticipated, please see attached letter from 13 defence solicitors in Wylie asking for our position on 14 the ongoing Horizon investigation." 15 That's relating to Second Sight, isn't it? 16 A. Yes, yes. 17 Q. If we can go up, please, slightly to the email from 18 Jarnail Singh -- thank you -- it says: 19 "Hugh/Susan -- please see Cartwright King's email. 20 I raised this with you and briefly discussed this with 21 Hugh last week with our possible approach ..." 22 I think you say in your witness statement that you 23 have no recollection of that discussion; is that 24 correct? 25 A. That's correct. 47 1 Q. Well, just pausing there, in your career, you handed 2 really dealt with criminal law matters before? 3 A. Not at all, no. 4 Q. So, at this point, you're being brought into discussions 5 about Post Office's position on whether to continue 6 prosecutions pending an investigation by Second Sight -- 7 A. Correct. 8 Q. -- and there would be severe ramifications for the 9 business if Second Sight uncovered any systemic 10 problems? 11 A. Yes, correct. 12 Q. So it's a high-stake situation? 13 A. Yes. 14 Q. It was an unusual moment in your career; would you 15 agree? 16 A. It was interesting. 17 Q. Is it really your evidence that you can't remember your 18 discussion with Jarnail Singh around this time? 19 A. No, because my -- I can't recall but, because I wasn't 20 involved in the prosecutions, my suspicion would be that 21 I would have said this needs to be discussed with Susan. 22 Q. Well, if we look, you are involved, still -- 23 A. Yes. 24 Q. -- now in the decision making, yes? 25 A. Yes. 48 1 Q. If we go to page 1, please. To the bottom. Sorry, 2 that's fine, thank you. Some other emails, and Jarnail 3 Singh comes back on 10 July, this time just to you -- 4 A. Mm-hm. 5 Q. -- saying: 6 "Hugh, what we say to ..." 7 Then 3 and 4 is: 8 "Do we agree to defendants request for stay or 9 adjournment pending completion of the audit report or 10 let the court decide. 11 "What are we going to do with existing, pending and 12 future investigations and losses ..." 13 So, effectively, he's asking for guidance on Post 14 Office's position -- 15 A. Yes. 16 Q. -- on prosecutions -- 17 A. Yeah. 18 Q. -- during -- 19 A. Yeah. 20 Q. -- the Second Sight investigation? 21 A. Yeah. 22 Q. If we see at the bottom there, he's specifically taken 23 out Susan Crichton out of copy, hasn't he? 24 A. Yes. 25 Q. Why would he do that if you weren't supervising on 49 1 criminal law matters? 2 A. So I don't know because occasionally, sporadically he 3 would copy me in on criminal law matters, I would remind 4 him that he should be dealing with Susan on them. 5 I took a pragmatic approach, which is, if there was 6 anything I could progress to move matters along, then 7 I would. But, most of the time when he did this, it 8 would end up being -- going to get Susan in a discussion 9 with Jarnail over the issue. 10 Q. If we can go up the chain, please. We see you say: 11 "Okay are you able to advise Susan and I or do you 12 want this to go to counsel?" 13 He says: 14 "Hugh -- if I can have some answers, steer and 15 stance, I can then [I think it should be 'advise'] 16 Cartwright King and have input from them." 17 A. Mm-hm. 18 Q. If we go further up, please, you say -- this is now to 19 Susan Crichton: 20 "He doesn't seem to be able to do recommendations, 21 does he ..." 22 Were you having concerns about Mr Singh's competence 23 at this point? 24 A. I think this was about my first dealing with Mr Singh, 25 after separation, after he'd arrived. So this might 50 1 have been one of my earliest experiences of him and I'm 2 looking at this chain, I've been drawn into it, I've 3 told him before: "Actually, you're working with Susan 4 Crichton on these matters". I'm trying to make 5 constructive points and move it along. 6 I'm probably getting frustrated at this point. I've 7 got other matters I'm dealing with. So it would be more 8 like frustration over this particular moment than 9 anything larger around Mr Singh. 10 Q. So did you remain satisfied that Jarnail Singh was 11 an appropriate person to be dealing with this issue in 12 criminal prosecutions? 13 A. So I would have discussed any concerns I had with Susan 14 Crichton about Mr Singh. I can't recall, on the back of 15 this, whether or not I discussed any concerns. 16 Q. I'm going to go to Harry Bowyer's advice of 11 July 2012 17 now, so just after this email chain. Before I do, 18 I understand it that you accept that you received and 19 read this advice by 16 July 2012; is that right? 20 A. Yes. 21 Q. Thank you. Well, we can go straight to the advice then, 22 please. It's POL00026567. You see it's an advice in 23 the case of the Crown v Wylie, and it sets out the facts 24 of the allegations. We can go down, please, to 25 paragraph 2. Thank you. It's referring in 51 1 paragraph 2 -- we don't need to read it out -- but it's 2 referring to the Second Sight investigation and the 3 ramifications Mr Bowyer thought that caused. 4 Paragraph 3, please. It says: 5 "The first consequence is that we have now given 6 ammunition to those attempting to discredit the Horizon 7 system. The argument will be that there is no smoke 8 without fire and we would not have needed to audit 9 a bomb proof system. We can expect this to go viral in 10 that any competent defence solicitor advising in a case 11 such as this will raise the integrity of the Horizon 12 system and put us to proof as to its integrity. As all 13 of our cases depend on the system to compute the alleged 14 losses this is likely to affect a considerable 15 percentage of our cases." 16 So what were your thoughts, when you read that 17 paragraph? 18 A. I suppose it's essentially flagging the idea that Second 19 Sight being appointed might end up with a lot of claims 20 against the Post Office, if they find particular issues 21 with Horizon. It's similar to -- I think it's mentioned 22 as "floodgates" in the Morgan conference advice, and 23 I remember thinking at the time that, once you had 24 instructed Second Sight to do an independent review, 25 there were two logical outcomes: either it would find 52 1 nothing or it would find something and you would have to 2 deal with the consequences. So, for me, that was always 3 a logical possibility. 4 Q. When you thought about that, did you turn your mind to 5 what should happen in between, so what should happen to 6 criminal cases whilst the investigation was ongoing? 7 A. No, because I saw that as for Susan Crichton and 8 Mr Singh to make a decision on. 9 Q. We'll come back to that point shortly. If we could go 10 down, please, to paragraph 6(i). This is the advice 11 Mr Bowyer gives on what to do, on next steps. It says: 12 "We should identify the contested cases, civil and 13 criminal, in which the Horizon system has been 14 challenged. We should identify the areas of challenge 15 and how we neutralised them." 16 So advising, effectively, a looking-back exercise of 17 past times when the Horizon IT System had been 18 challenged, correct? 19 A. Yes. 20 Q. When you read this, did you consider whether Post Office 21 should have reviewed whether there was any material that 22 may assist the defence in those past cases? 23 A. I would have expected Mr Singh and Susan Crichton to 24 already have been looking at that as part of the ongoing 25 prosecution of the cases. 53 1 Q. So, effectively, you thought it wasn't your 2 responsibility? 3 A. No, because I wasn't dealing with those cases and 4 I didn't have supervision or carriage of them. 5 Q. If we could carry on over the page, please. It says: 6 "An expert should be identified and instructed to 7 prepare a generic statement which confirms the integrity 8 of the system and why the attacks so far have been 9 unfounded. This expert should be deployed in all cases 10 where the Horizon system is challenged and he should be 11 prepared to be called to reply to defence experts on 12 a case-by-case basis." 13 Did you agree with that advice? 14 A. I wouldn't have had the experience or the expertise to 15 disagree with it. 16 Q. So you didn't think, for example, that, actually, it was 17 a Post Office duty to investigate cases on 18 a case-by-case basis to see if there was a problem in 19 the Horizon IT System in that particular case? 20 A. So I would have been expecting and relying on Mr Singh 21 and his expertise, and Ms Crichton's supervision of the 22 criminal matters, to ensure that all that was done 23 properly. 24 Q. Well, let's look at some of the emails surrounding this 25 time, please. It's POL00141400, please. If I can turn 54 1 to page 2 -- thank you -- and to the bottom, please. 2 Jarnail Singh's email of 16 July 2012 to Andy Cash, 3 Cartwright King, and you are copied in with Susan 4 Crichton. 5 A. Mm-hm. 6 Q. It refers to the defence approach to staying of 7 prosecutions until the review is completed. It says: 8 "Post Office view is that such an approach [would] 9 be resisted. Review to be conducted is limited in scope 10 in few and isolated cases." 11 It goes on to say: 12 "There are no legal or forensic grounds to argue 13 defendants will not get fair trial or abuse of process. 14 There is no reason to justify the case being stayed." 15 If we can go over the page, please, to page 1, down 16 slightly, it's an email from you, 16 July 2012, Jarnail 17 Singh, Susan Crichton and Alwen Lyons in copy. It says: 18 "One for our 3.30 meeting I think." 19 Presumably that's referring to the decision on 20 whether to oppose or agree to applications for stays 21 made by defendants? 22 A. Yes, this may have been the case that we already had 23 a meeting scheduled on something else and so I'm saying, 24 okay, this issue has come up, I've tried to distil down 25 on this email what the things are for discussion, and 55 1 then a discussion can be had on it. 2 Q. So you're involved in the decision making at this point? 3 A. I wouldn't have been involved in the decision making; 4 I would say that I was facilitating a discussion at this 5 point. I've been reached out to by Jarnail Singh, not 6 of my doing. I'm trying to progress the matter in 7 a sensible way but I'm making sure that, ultimately, 8 there's a discussion between Jarnail Singh and Susan 9 Crichton. 10 Q. Why did it require you to facilitate a discussion 11 between the General Counsel and someone you say is being 12 supervised by her? 13 A. It was a point of frustration from time to time that 14 I would have with Mr Singh. 15 Q. What, can you expand on that, please? 16 A. Because he would email me or include me in an email and 17 I would say "Jarnail you're meant to be doing the 18 criminal cases with Susan Crichton, please". 19 Q. Did you ever approach Susan Crichton and say, "Please 20 can you exercise more oversight of Jarnail Singh because 21 he keeps emailing me"? 22 A. I recall flagging the issue to her and saying, "I keep 23 getting copied into things". 24 Q. Do you recall what was discussed at the meeting at 3.30 25 on 16 July 2012? 56 1 A. I can't, no. 2 Q. Please can we turn to POL00058155. If you can go to 3 page 2, please, and to the bottom, please. Thank you, 4 that's perfect. So this is an email from you to Susan 5 Crichton on 24 July, forwarding an email about a week 6 earlier from Jarnail Singh, and you say: 7 "This is the story text which J [presumably Jarnail] 8 put together following our meeting last week. Any 9 comments [please] before we release it?" 10 Do you remember the background to this? 11 A. I think this was in relation to the appointment of 12 Second Sight and explaining why Post Office had 13 appointed Second Sight, and so I think Mr Singh will 14 have involved me originally because he will have known 15 that I would have been drawn into the Second Sight issue 16 by Susan Crichton so, for example, you see me going to 17 that con with counsel. So I'm reached out to, he 18 obviously needs to put a draft statement together, and 19 this is the progression of that statement. 20 Q. This is quite a significant time for Post Office 21 Limited's Legal Team, isn't it? 22 A. In the sense of? 23 Q. In the sense that it's dealing with a how to progress 24 prosecutions in the face of the Second Sight 25 investigation? 57 1 A. Yes, although there were lots of important moments along 2 the way. 3 Q. But is it the case that you were actually being brought 4 into this because it was an important matter for the 5 Post Office Legal team to deal with? 6 A. I'm not sure that was the case. It might have been more 7 ad hoc than that. 8 Q. Sorry, can you repeat the last bit? 9 A. It might have been more ad hoc than that, in that I'd 10 been involved by Jarnail at the start of the email 11 conversation, and it snowballed from there. 12 Q. If we go to page 2, please. We see there the signature 13 is from Ronan Kelleher, Head of PR and Media at Post 14 Office Limited. Do you know why a PR person was brought 15 in for this? 16 A. No, and I can't recall their name. 17 Q. The last sentence -- actually, no, in fairness to you, 18 I should show you the start of the email, please -- 19 thank you -- it says: 20 "As this [email] will most probably find its way 21 into the media, we do need to get the message across 22 ['from', it should be] the start that we continue to 23 have full confidence in the robustness of the Horizon 24 system and then reinforce it so I suggest the following 25 tweaking to the proposed wording from Jarnail ..." 58 1 If we go down, please. At the bottom, we see the 2 sentence: 3 "When the system has been challenged in criminal 4 courts, it has been successfully defended." 5 Which was taken from Mr Singh's draft of the copy as 6 well. 7 Did you take any steps to satisfy yourself that that 8 was accurate? 9 A. I can't recall. 10 Q. Do you think you should have done? 11 A. I would have been relying on Mr Singh and Ms Crichton to 12 run the prosecutions in an appropriate manner, so if 13 that was required, then I would have expected them to be 14 doing that. 15 Q. This is slightly different, isn't it, from running the 16 prosecutions. This is a statement on the position in 17 respect of Second Sight, and it's one on which you've 18 become involved. Did you not think it was incumbent on 19 you to check that this was accurate? 20 A. So I would have been relying, I suppose, on people who 21 have pulled this together. 22 Q. Were you aware of the acquittals following trial in 23 criminal proceedings of Maureen McKelvey and Suzanne 24 Palmer at this stage? 25 A. No. 59 1 Q. Could we please turn to POL00120723. This is a letter 2 from Cartwright King, we see it's in the case of Post 3 Office Limited v Wylie. If we go down, please, to just 4 under halfway, we see it says: 5 "The Crown's position on the integrity of the 6 Horizon system is set out in Steve Bradshaw's statement 7 dated 20 November 2012." 8 If we turn to page 5, please. That's the statement 9 from Stephen Bradshaw and it's effectively the statement 10 that was drafted by the PR person we saw and, if you 11 could go over the page, again, we see: 12 "When the system has been challenged in criminal 13 courts it has been successfully defended." 14 Were you aware of a decision in the Post Office 15 Legal Team for that copy to be used as witness 16 statements in criminal proceedings? 17 A. No, I wasn't. 18 Q. Do you think that's a failure, that you were sort of 19 involved in an ad hoc basis but not aware of the wider 20 issues and how a statement such as that was being used 21 in criminal proceedings? 22 A. So I think, because I was involved in an ad hoc way and 23 involved not at my choosing but someone reaching out to 24 me, then it was clearly impossible to control what was 25 happening. I had always understood that those 60 1 prosecutions were being run appropriately, in good faith 2 by Susan Crichton and Mr Singh. 3 Q. Did you take any steps to satisfy yourself that that was 4 accurate? 5 A. I can't recall. 6 Q. Could we please turn to POL00133644. We see this is 7 a witness statement of Gareth Jenkins, dated 27 November 8 2012. If we look over the page, please, midway down, it 9 says: 10 "I have been asked to provide a statement in the 11 case of Kim Wylie." 12 So it's the Wylie case we've seen appear a few times 13 now. Over at page 3, please, Mr Jenkins says: 14 "I also note a comment made about it being possible 15 to remotely access the system. It is true that such 16 access is possible; however in an analysis of data 17 audited by the system, it is possible to identify any 18 data that has not been input directly by staff in the 19 Branch. Any such change to data is very rare and would 20 be authorised by Post Office Ltd." 21 I should ask first, did you see this statement at 22 the time? 23 A. Sorry? 24 Q. Did you see this statement at the time? 25 A. No, I wouldn't have seen any witness statements on 61 1 criminal prosecution cases. 2 Q. Did anyone in the Post Office Legal team make you aware 3 of this aspect of the statement about remote access? 4 A. No. 5 Q. Did anyone at Cartwright King raise this with you? 6 A. No. 7 Q. I want to go to a different matter now, again relating 8 to Second Sight, and that's about bugs, errors and 9 defects. Can we turn to POL00060572, please. If we 10 turn to page 2, please, so we see your email of 28 June, 11 and we can see you referring to various -- well, you see 12 it says: 13 "this Comms statement to include: 14 "... found the 64 and 14 bugs", which we know are 15 called the receipts and payments mismatch bug and the 16 suspense account bug. 17 So, at this point, I understand you accept you were 18 involved with the response to challenges to Horizon more 19 directly. 20 A. Yes, I think this might have been the first day, because 21 I'm not in the office. It's a Friday and I wouldn't 22 work on a Friday. But I think Susan Crichton was away 23 on holiday and I think I got reached out to and, 24 probably before this email, there will have been 25 a conference call with the people on the email because 62 1 this looks like me rushing to get an email out just 2 before people go home for the weekend on a Friday, 3 because things needed to happen. 4 Q. We don't need to turn it up on the screen but, at 5 paragraph 115 of your statement, page 27, you refer 6 specifically to this email and you say: 7 "I must have spoken to Jarnail Singh before drafting 8 this email as I would have been unfamiliar with the 9 criminal case and procedural issues, such as 10 adjournments." 11 A. Mm-hm. 12 Q. First, can you recall what Mr Singh told you about bugs, 13 errors or defects, if anything? 14 A. Sorry, can you repeat? 15 Q. Did Mr Singh tell you anything about bugs in the Horizon 16 IT System? 17 A. No. 18 Q. That can come down. Thank you. 19 I want to explore your knowledge of bugs. Before 20 June 2013, were you aware of any bugs, errors or defects 21 in the Horizon IT System? 22 A. Not that I can recall, no. 23 Q. Would you accept that, in early July 2013, you became 24 aware of something called the Callendar Square bug? 25 A. Yes. 63 1 Q. Did you know, at that point, so by July 2013, when Post 2 Office first had knowledge of the cash accounts bug? 3 A. Is this the Falkirk bug? 4 Q. Yes, I'm so sorry, yes. Callendar Square/Falkirk? 5 A. I think in the bundle there is an email, I think, to 6 Susan Crichton and I, talking about that bug at around 7 that time. 8 Q. Yes, well, we can turn to that, or at least what I think 9 you're referring to, it's POL00029628. Just bear with 10 me, sorry. I have to catch up. 11 At the top, we see from Lesley Sewell and we see 12 your name is at the very far right and left, so it's 13 sent to you. 14 A. Mm. 15 Q. If we go down, please, to the email from Gareth Jenkins, 16 it's subject "Callendar Square": 17 "I've found some details on the problem ... 18 "It was first raised in September 2005. The fix was 19 applied as part of S90 which was rolled out February/ 20 March 2006." 21 Next paragraph down, it says: 22 "We reported the problem to [Post Office Limited] 23 but I don't know how much of an investigation was 24 carried out into the scope and the number of affected 25 branches. I was not involved in the issue at the time 64 1 and only really became aware of it as part of the Misra 2 case in 2010." 3 At that point in time, July 2013, when did you think 4 that Post Office were first made aware of the Callendar 5 Square bug? 6 A. Having seen this, I would have assumed it was 7 September -- no, he doesn't say that, does he? I don't 8 know. I don't know. 9 Q. Did you take any steps to find out? 10 A. So I would have expected this to have come out of the 11 enquiry stream that we were running at this time. So 12 when that Friday, the 28th had occurred and the two 13 other bugs were mentioned, the first priority, as I saw 14 it, was, "Let's understand what the impact is for the 15 criminal cases and the civil cases and, first and 16 foremost, what do we need to do about those?" And, as 17 part of that, I would have assumed that what would have 18 come out would have been fact finding around the bugs 19 and this one, as well, as to who knew what when. 20 Q. Can you recall what the answer to "who knew what when" 21 was? 22 A. I can't recall, no, I'm sorry. 23 Q. Did you see any documents that were relevant to when 24 Post Office Limited discovered the Callendar Square bug? 25 A. I can't recall. 65 1 Q. Do you remember how Post Office Limited searched for 2 documents on that issue? 3 A. No. 4 Q. Moving to the receipts and payments mismatch bug, do you 5 accept that you were aware in late June 2013, firstly, 6 about the receipts and payments mismatch bug? 7 A. This is one of the ones I would call the 14 -- 8 Q. The 14 bug? 9 A. Yes, yes. 10 Q. Can we turn, please, to POL00107948. At the bottom of 11 that page, please, we see an email from Rodric Williams, 12 1 July, to you and others, yes? 13 A. Yes. 14 Q. It refers to a draft briefing note. If you carry on 15 further down, please, to page 4, and to the bottom, 16 please. You see an email from Simon Baker, "Summary of 17 Receipts Payments problems", and the timeline set out: 18 March 2010, first incidence occurred; March 2011, letter 19 sent to branches and corrections made. 20 So, at this time, July 2013, you were aware, weren't 21 you, that Post Office Limited had been aware of this 22 receipts and payments problem by at least March 2011? 23 A. Yes, I think at this point this information is coming, 24 yes. 25 Q. So the receipts and payments mismatch was the 62, 66 1 I think. We'll look at the 14 -- 2 A. Yeah, okay. 3 Q. -- which I call the suspense account bug. In early July 4 2013, do you accept you were aware that Post Office had 5 knowledge of the suspense bug in June 2012? 6 A. That's the one we just saw on the -- 7 Q. Let's go to the document, so it may be easier that way. 8 A. Thank you. 9 Q. POL00029641, please. Thank you. We see you're the 10 sendee at the top -- 11 A. Yeah. 12 Q. -- the sender, sorry, dated 4 July 2013, to Susan 13 Crichton. You say: 14 "We need to keep each other copied in on 15 everything." 16 You see, "Timeline for Local Suspense Problem." 17 If we can go down, please. It says, email from 18 Rodric Williams: 19 "All -- here's my summary of my call with Andy Winn 20 ..." 21 It says: 22 "Issue first surfaced at [Post Office Finance 23 Centre] on 6 February 2012, at the close of Branch 24 Trading period." 25 You see that that was resolved without noting the 67 1 bug. If we go over the page, please -- that was my 2 error, slightly up -- thank you: 3 "On 6 February 2013, the Willen [branch 4 subpostmaster] contacted [the NBSC] to report the same 5 discrepancy in his branch trading as the previous year. 6 "NBSC passed this on to Fujitsu between 6 and 7 8 February 2013. 8 "Fujitsu then notified FSC ..." 9 That's Post Office Finance Service Centre, isn't it? 10 A. I don't know, sorry. 11 Q. Well, if you look at the top, first bullet point? 12 A. Oh, okay, sorry. Thank you. 13 Q. "... of the problem on 28 February 2013." 14 So, by this point, you were aware on this issue, the 15 suspense account issue, Post Office had knowledge of it 16 from 28 February 2013. 17 A. Yes. 18 Q. Was this common knowledge at this time in the Legal 19 team? 20 A. I think it would have been known between the lawyers, 21 Susan Crichton, myself, Mr Singh and Rodric Williams, 22 and this week was a whirlwind, so information was coming 23 every day. There were briefing notes to be commented on 24 every day. This was a very busy week. 25 Q. At that point did you think there would have been 68 1 documents relevant to those bugs to which Post Office 2 Limited had access? 3 A. I can't recall that specific thought. Our priority was 4 to get the criminal and civil advice to see how we took 5 it forward, if there were any issues around the 6 convictions, et cetera, that were unsafe. 7 Q. Well, at this point, you're finding out that Post Office 8 had knowledge, over a number of years, of various -- 9 three bugs, correct? 10 A. Yes, I think so. 11 Q. And you're considering what advice is necessary on civil 12 and criminal -- 13 A. Yes. 14 Q. -- including criminal convictions? 15 A. Yes. We're seeking that advice from the external 16 specialists. 17 Q. Surely it must have occurred to you that one of those 18 issues would be, "Well, have we disclosed documents that 19 are relevant to these bugs, to people who have been 20 convicted on the basis of Horizon data"? 21 A. I assume that was part of what the externals were 22 considering at looking at, yes. 23 Q. Why weren't you considering it? 24 A. So in -- I thought it was being dealt with by the 25 externals in conjunction with Mr Singh and Mr Williams. 69 1 Q. But you're being brought in here, aren't you? 2 A. Yes. 3 Q. Do you accept, on its face, there's a potential serious 4 disclosure failing here, if information about these bugs 5 hadn't been communicated to subpostmasters who'd been 6 convicted on the basis of Horizon data? 7 A. Yes, and I understood that was the advice we were 8 seeking. 9 Q. Is your evidence that, at that point, it didn't occur to 10 you to look for documents yourself that may be relevant 11 to those bugs, errors and defects? 12 A. I can't recall that specific issue. 13 Q. Do you think you would have thought that? Is it likely 14 that you would have thought that? 15 A. It's difficult to say. Why is it difficult to say? 16 Q. Why is it difficult to say? 17 A. Because of my lack of knowledge of criminal law. 18 Q. But, standing back, do you need knowledge of criminal 19 law to know that, if someone has been convicted on the 20 basis of Horizon data and Post Office is aware or had 21 been aware of bugs in the Horizon system, that it was 22 necessary to disclose documents relevant to that? 23 A. I would have expected any direction around that to come 24 from the external advice and say, "Okay, you need to do 25 X, Y and Z". 70 1 Q. Well, in these discussions at the time, was anyone 2 saying, "We need to look for these documents"? 3 A. I can't recall that, no. 4 Q. Can we look at POL00145142. So this is your email to 5 Martin Smith and Simon Clarke, they're both 6 representatives of Cartwright King? 7 A. Yes. 8 Q. We see Jarnail Singh, Susan Crichton and Rodric Williams 9 in copy. You're asking for whether advice had been 10 changed because of a new timeline on the local suspense 11 account bug. You put two questions. The first is: 12 "Do you still have to look back to cases since it 13 first happened in Jan 2012 (we will want you to 14 anyway)." 15 Can I just ask you to explain what advice you were 16 seeking in that question? 17 A. I can't recall offhand. I must have thought there was 18 a logical question to be asked and I asked it. 19 Q. You can't assist us further? 20 A. It looks like I'm asking about do we have to go back and 21 review past cases? 22 Q. At that point, why was January 2012 being picked? 23 A. I don't know. I can't recall. 24 Q. Can you recall whether anyone raised the review going 25 back to 2005, when the Callendar Square bug was 71 1 identified? 2 A. I can't recall, sorry. 3 Q. You say, number 2: 4 "Does this mean the only GJ ..." 5 Presumably that's Gareth Jenkins? 6 A. I would expect so, yeah. 7 Q. "... the only [Gareth Jenkins] statements that might 8 give concern are the ones since February 2013?" 9 Do we take it from that that, at this point, you 10 were aware of the advice that was subsequently given in 11 writing by Simon Clarke that Gareth Jenkins, in his 12 view, was in breach of his duties as an expert? 13 A. I can't recall. I may have gone to that gone to that 14 con on the 3rd. I can't recall. 15 Q. Well, what else would that mean? 16 A. I don't know if someone was talking about the statements 17 in a high-level way, I just can't recall, I'm afraid. 18 There's clearly an issue that I've picked up on but 19 I can't remember any of the detail about it. 20 Q. We know as a matter of fact what happened. On 15 July, 21 Simon Clarke gave advice on Gareth Jenkins, in stating 22 he was in breach of his duty as an expert. That was 23 a written advice. Are you aware of anything else that 24 this email could refer to relating to Gareth Jenkins' 25 statements, other than concerns raised by Martin Smith 72 1 and Simon Clarke as to his duties as an expert? 2 A. I'm afraid I just couldn't remember and I couldn't think 3 of anything but I can't recall with any certainty. 4 Q. I'm going to put it one final time: do you accept, at 5 this stage, 4 July 2013, you were aware of the concerns 6 about Gareth Jenkins as an expert and whether he was in 7 breach of his expert duties? 8 A. I may have been but I just cannot recall. 9 Q. You say: 10 "Susan and I have to brief the CEO at 9.45." 11 A. Mm-hm. 12 Q. Can you remember what that briefing was about? 13 A. No. 14 Q. I expect I know the answer to this but do you remember 15 what you told the CEO and whether you told her anything 16 in relation to Gareth Jenkins? 17 A. I'm afraid I don't. 18 Q. Please could we go to POL00296821, and if we could go -- 19 we see there, sorry, you're sent this email by Alwen 20 Lyons on 28 June. If we go down slightly, we see: 21 "FYI -- summary advice on the impact of bug 14 on 22 Bowness Road." 23 Then, back to the top, Alwen Lyons says: 24 "Can we call bugs incidents from now on please." 25 Do you remember receiving this email? 73 1 A. I don't remember receiving it but I do remember some 2 people wanting to use different words for bugs. 3 Q. What do you remember about that? 4 A. I remember thinking at the time it was slightly idiotic, 5 in that people would know what was being talked about, 6 so why would you use a different word? 7 Q. Did you ask for the reasons behind this message? 8 A. I can't recall if I did or no. 9 Q. Was it because people in Post Office wanted to play down 10 the impact of the word "bug"? 11 A. I don't know. It may have been but I don't know. 12 Q. Did you follow this advice? 13 A. I can't recall personally following it. 14 Q. Can we, please, go to POL00407582. This is 15 an attendance note with Simon Richardson. Is he of Bond 16 Dickinson? 17 A. Yes, I think he was one of the senior partners at Bond 18 Dickinson. 19 Q. It's on 10 July, you and Susan Crichton are noted to be 20 in attendance. If we could just go down so we can see 21 more of the body of the attendance note, please. Can 22 you remember what the purpose of this conference was? 23 A. No. 24 Q. At 3 -- 25 A. I think it was in the context of I was about to go away 74 1 for a period of time and I think there was challenge 2 because Rodric Williams was due to be away the following 3 week and Mr Singh, I believe. 4 Q. Why was that relevant to the conference? 5 A. I think the genesis of the conference might be Susan 6 Crichton seeking a degree of high-level support from 7 Bond Dickinson at that point. 8 Q. At 3, we see it says: 9 "The Board want to sack SS ..." 10 Does that refer to Second Sight? 11 A. I believe so, yes. 12 Q. "... and of course are now not coping well with the fact 13 that they are independent. [Susan Crichton] is going to 14 arrange to meet [Second Sight] and she asked if she 15 could use our offices next Tuesday." 16 What was the discussion on -- 17 Well, no, let's start first, does "the Board" refer 18 to the Board of Post Office Limited? 19 A. I believe so. 20 Q. What can you recall about this discussion? 21 A. I can't recall anything specifically about this 22 discussion. 23 Q. It's quite significant, isn't it, the Board saying they 24 want to sack Second Sight? 25 A. I remember that particular thought being mentioned, 75 1 probably by Susan Crichton, at some point in these two 2 weeks because I was surprised because I'd always thought 3 Second Sight was the way to go. So I wasn't persuaded 4 by those floodgate arguments, et cetera, back in the 5 previous summer when they were appointed. And 6 I thought, once you had appointed them and signed up to 7 an independent review, then there was always the chance 8 that you would get an answer that wasn't an answer that 9 you were expecting. 10 So to have a reaction suggested by, you know, 11 somebody's view was "sack Second Sight", that seemed to 12 be slightly odd because that would be a very public 13 event. 14 Q. Well, if you thought it was slightly odd -- you say you 15 thought it may have been Susan Crichton -- did you ask 16 her why they wanted to sack them? 17 A. I may have done but I can't remember when sacking them 18 was first mentioned. 19 Q. Well, this was an attendance note of 10 July 2013, so 20 it's mentioned by that point. 21 A. Yes, yeah. 22 Q. Do you recall why or were there any reasons given as to 23 why it was said the Board want to sack Second Sight? 24 A. No, I can't recall any specific conversation or 25 explanation of reasons. 76 1 Q. Just before we take the break, you've referred to you 2 were about to go way for a period of time and in your 3 witness statement you say that was for a sabbatical? 4 A. Yes. 5 Q. When was it arranged that you would go on sabbatical? 6 A. Probably the previous year because it was driven -- my 7 wife had a sabbatical at her place of work. 8 Q. So it was unconnected to Second Sight? 9 A. Totally unconnected. 10 MR STEVENS: Sir, that's probably a good time to take the 11 second morning break. If we could come back at 12.10. 12 SIR WYN WILLIAMS: Yes, okay. But we're going to finish 13 this witness this morning, I take it? 14 MR STEVENS: Yes, absolutely. I've not many more questions. 15 SIR WYN WILLIAMS: That's fine, Mr Stevens, okay. 16 MR STEVENS: Thank you, sir. 17 (11.59 am) 18 (A short break) 19 (12.10 pm) 20 MR STEVENS: Good afternoon, sir, can you see and hear me? 21 SIR WYN WILLIAMS: Yes, I can, thanks. 22 MR STEVENS: Okay, I'll carry on. 23 I went earlier to your knowledge of Gareth Jenkins 24 and the advice of Simon Clarke, that he was in breach of 25 his expert duties. 77 1 A. Mm, yeah. 2 Q. I asked you, by 4 July 2013, were you aware of that and 3 you said you couldn't recall. Do you now have 4 a positive recollection as to when you first became 5 aware of those issues? 6 A. Not a precise, positive recollection, no, sorry. 7 Q. Can we turn to POL00060681, please. So this is an email 8 from you to Will Gibson -- 9 A. Mm-hm. 10 Q. -- on 9 July 2013. It says, next to Will Gibson's name 11 "ShEx", that's the Shareholder Executive, isn't it? 12 A. Yes, that's the department, the BIS Government 13 Department that's responsible for the Post Office. 14 Q. So, effectively, the agency that oversaw the Crown's 15 shareholding interests -- 16 A. Yes, yes. 17 Q. -- in Post Office. Did you often report to people at 18 Shareholder Executive? 19 A. No, by exception. 20 Q. You see you say: 21 "URGENT -- Will -- intel on MP cases -- JFSA case 22 intel to follow." 23 You set out a matter on the Misra case. Do you 24 remember why you were asked to provide this information? 25 A. No, it may have been -- given it was ShEx and Will 78 1 Gibson, it may have been that some information needed to 2 be given to a Government minister. 3 Q. Would you have put this together yourself or would you 4 have relied on -- 5 A. Absolutely not. This would have come from Mr Singh. 6 Q. Mr Singh? 7 A. Yeah. 8 Q. Would you have taken any advice from Cartwright King, as 9 well? 10 A. I can't recall. I think it might be Mr Singh because 11 also he is copied in on the email. 12 Q. It says: 13 "MISRA case 14 "Defendant pleaded not guilty to theft (but pleaded 15 guilty to [false accounting]) 16 "Defendant produced computer expert to argue Horizon 17 issues 18 "[The Post Office] used Fujitsu expert to argue 19 Horizon issues 20 "Outcome -- found guilty by a jury of theft after 21 a 7-day trial 22 "Evidence relied to convict -- 23 "She alleged it was either Horizon computer or her 24 employees 25 "She said after she got rid of employees the losses 79 1 got worse 2 "Therefore she blamed Horizon (at a late stage in 3 proceedings -- after it was listed for trial -- so this 4 trial got adjourned whilst each side got Horizon 5 evidence together) 6 "It was a jury trial -- so no explanation as to what 7 evidence was relied on by them re conviction." 8 Why didn't you refer to the advice that had been 9 given about Gareth Jenkins, that he was in breach of his 10 duties as an expert? 11 A. I can't recall. I know this would have been provided by 12 Mr Singh and I would have been relying on him to give me 13 the correct picture. 14 Q. I know you say you can't recall when you became aware of 15 the allegations about Gareth Jenkins, if you were aware 16 of those matters at the time you sent this email, did 17 you accept you should have included it in this email? 18 A. I wouldn't have necessarily assumed that, because 19 something around that might have been dealt with by 20 Susan Crichton, at that level, with ShEx. 21 Q. On the basis that you were aware of the issues to do 22 with Gareth Jenkins, this summary of the Misra case 23 isn't a full and fair description of the issues Post 24 Office Limited was facing in relation to this Misra 25 case, was it? 80 1 A. Sorry, I think the context of this email was that 2 an urgent turnaround on it was needed and I think it's 3 done in a matter of minutes, if you look at the timing, 4 so -- 5 Q. It wouldn't take you long, would it, to write, "We have 6 advised that the expert evidence in this trial was 7 provided by an expert who has been in breach of his 8 duties"? 9 A. I agree with you but I'm not -- I can't recall at the 10 time whether I took the point or not. 11 Q. You didn't raise the point, did you? 12 A. I didn't raise the point because it's not on that email, 13 no. 14 Q. The issue is why; do you know why? 15 A. I can't recall at the time. 16 Q. Can you think of a good reason why you didn't? 17 A. I'm sorry, I can't. 18 Q. Would you accept that it's a failing not to have 19 referred to it? 20 A. I don't know if it's a failing because I don't know if 21 that information was being separately communicated to 22 ShEx. 23 Q. Well, would it be incumbent on you to check if it was 24 being separately communicated to ShEx? 25 A. So, if you see, I've also copied in Susan Crichton and 81 1 Alwen Lyons. 2 Q. Did you take steps with them to see that they were 3 communicating the issues with Gareth Jenkins to 4 Shareholder Executive? 5 A. I may have done but I can't honestly recall. 6 SIR WYN WILLIAMS: I think you told me that this email was 7 either drafted by -- these are my words, not yours, so 8 let's see if I've got it right -- it was either actually 9 drafted for you by Mr Singh or the information came from 10 Mr Singh, so, if Mr Singh knew of the advice about 11 Gareth Jenkins, have you got a view about whether he 12 should have included it or told you about it? 13 A. If he knew about it and he thought it was pertinent from 14 the criminal perspective, then, yes, I suppose he should 15 have put it on the email. 16 SIR WYN WILLIAMS: Ms Crichton and Ms Lyons were copied into 17 this email and, if they knew of the advice about 18 Mr Jenkins, should they have in some way intervened to 19 ensure that the shareholder was given that information? 20 A. I would have expected them to, which is probably why 21 I've included them on copy in the email. 22 SIR WYN WILLIAMS: So, one way or another, it seems to me 23 that you are accepting that the shareholder should have 24 been told about the information, assuming that any of 25 these people knew about it, and you didn't tell him, 82 1 either because you didn't know or you assumed that one 2 of those would tell him; is that it in a nutshell? 3 A. I think that's probably it in a nutshell, sir. 4 SIR WYN WILLIAMS: Fine. 5 MR STEVENS: Thank you, sir. That document can come down. 6 Before you went on your sabbatical, did anyone raise 7 a concern about how Gareth Jenkins had been instructed, 8 namely whether he'd been advised of his duties as 9 an expert? 10 A. I can't recall specifically that matter being raised. 11 That's not to say it wasn't discussed by someone but 12 I can't recall it. 13 Q. Can you recall whether there was any investigation into 14 the manner in which Gareth Jenkins had been instructed 15 by the Post Office Limited Criminal Law Department? 16 A. I can't recall that during the -- those July weeks in 17 the run-up to the sabbatical. 18 Q. Did you discuss this with Jarnail Singh at all? 19 A. I can't remember if I discussed it with him or not. 20 Q. Would you accept that it was important for the Post 21 Office Legal Department to examine how Mr Jenkins had 22 been instructed and whether he'd been instructed 23 properly? 24 A. Yes, I would. 25 Q. Who do you say was responsible for that? 83 1 A. So I was going on sabbatical and I would have thought 2 an issue like that would have been dealt with by Susan 3 Crichton with support from Mr Singh or Mr Williams. 4 Q. The advice on Gareth Jenkins, dated 15 July -- I can 5 bring it up if it assists -- do you recall reading it? 6 A. I recall I might have read it when I came back from 7 sabbatical. 8 Q. You say you might have. 9 A. I can't recall specifically but it would be likely 10 I would have read it when I came back from sabbatical. 11 Q. Did you, when you read it, check whether any steps had 12 been taken to examine how Mr Jenkins had been 13 instructed? 14 A. So I remember having conversations with Susan Crichton 15 when I came back and it was, I think, on the cusp of her 16 resigning around -- in the -- sorry, in the wake of her 17 resigning, I suppose, what matters needed addressing, 18 and I can't recall that being on a live list of matters 19 as a point to be resolved. 20 Q. Did you read the 2 August -- I can show it if you 21 need -- advice by Simon Clarke regarding allegations 22 that documents had been shredded? 23 A. I can remember, I think, seeing that when I returned 24 from sabbatical. 25 Q. Presumably, that came as a -- 84 1 A. That was quite a -- yeah. 2 Q. -- significant surprise? 3 A. Yes. 4 Q. What steps did you take, if any, to see whether those 5 matters had been investigated? 6 A. So I remember having a conversation, it might have been 7 Mr Singh, it might have been with Susan Crichton, 8 because I saw Susan Crichton, the correspondence that 9 related to that, subsequently, and I have a vague 10 recollection that it was described as a 'dealt with' 11 matter and, in fact, there hadn't been any document 12 disruption. But that's a vague recollection only. 13 Q. I want to cover one final topic before there will be 14 some Core Participant questions, which I anticipate will 15 take us to lunch. Can we please bring up POL00192214. 16 Could we go to the bottom of page 3, please. So we see 17 discussed is a letter received from the CCRC -- from 18 Susan Crichton, I should say, sorry -- you're in copy 19 and it says: 20 "... their advice feels odd to me as if given on 21 a take it or leave it basis and I am not comfortable 22 that's particularly useful in this context. Could we 23 discuss, I am happy to go to another firm that 24 specialises in criminal law, or a barrister, somehow it 25 feels as if there is a conflict here which I am not sure 85 1 I understand." 2 Do you recall there being any conversation about 3 whether or not Cartwright King had a conflict of 4 interest in overseeing matters related to the CCRC and 5 the review of past convictions? 6 A. No, I don't. 7 Q. You were copied in to this email, did you not discuss 8 this with Susan Crichton at the time? 9 A. No, because I think, by this stage, I had left and I was 10 on sabbatical. I think I went on sabbatical Friday, the 11 12th. 12 Q. So you can't assist at all with any discussions on -- 13 A. Sorry? 14 Q. You can't assist at all with discussions on a potential 15 conflict of interest? 16 A. No, I don't think I was -- I know there are occasions 17 where I am on sabbatical and I respond to emails and 18 there's one mention of me doing a call with Beachcroft 19 over (unclear) but, other than that, I can't recall 20 being on any phone calls or any discussions whatsoever. 21 MR STEVENS: Thank you. That's all the questions, I have, 22 sir. 23 We have questions from three sets of Core 24 Participants: I understand the recognised legal 25 representative for Gareth Jenkins, who has given a time 86 1 estimate of 20 to 25 minutes; Mr Henry, I think he said 2 ten minutes; and Mr Jacobs says five minutes. 3 SIR WYN WILLIAMS: Well, we'd better crack on, because 4 they're all going to finish by 1.00, Mr Stevens. 5 MR STEVENS: Yes, I was going to say. Sir, I'm in your 6 hands. Would you -- 7 SIR WYN WILLIAMS: Let's have the two short ones first, and 8 please stick to the shortness of the questioning that 9 you predicted. 10 MR STEVENS: Yes, so on that basis, then, it'll be Mr Jacobs 11 first. 12 Questioned by MR JACOBS 13 MR JACOBS: Mr Flemington, I represent a large 14 number of subpostmasters. 15 Could we go very quickly to POL00143379. It's 16 an email from Jarnail Singh to yourself, dated 16 July 17 2012, and you deal with it at paragraph 88 of your 18 witness statement so we know you've seen it. This was 19 an email chain in light of Harry Bowyer's advice, dated 20 11 July when he talks about what's been described as 21 a floodgates issue, and there was severe recriminations 22 for the business if Second Sight uncovered any systemic 23 problems. I think you dealt with that with Mr Stevens 24 at 11.00 this morning, yes? 25 A. Yes. 87 1 Q. So what we have here is Mr Singh saying, if we could 2 scroll down to the sixth line: 3 "All this will mean we have to provide extra 4 evidence as defence would put us to proof as to systems 5 integrity. Also increase in vast disclosure requests, 6 cases being transformed, from general deficiency trials 7 into boundless enquiry into the Horizon system. This 8 would mean vast scope of disclosure requests, task would 9 be close to overwhelming, only way to comply with 10 prosecution disclosure obligations would be to instruct 11 an expert at Fujitsu ..." 12 It then talks about sticking points: 13 "Sticking points in disclosure processes would be 14 costs of obtain Horizon data. Transaction logs would be 15 obtained from Fujitsu that show the details of every 16 single transaction at a post office." 17 Then he goes on to talk about costs: 18 "For example dense request could be for logs from 19 six months prior to the defendants tenure to the present 20 time and cost of obtaining that data would frankly be 21 astronomical. 22 "It is expensive to obtain this material because 23 expense simply results from post offices contractual 24 obligations to Fujitsu." 25 So he's talking about the contract: 88 1 "For example to obtain six months data would cost 2 £20,000 and mountain of information covering more than 3 5 years would cost???" 4 So what we have here is the Head of Criminal Law at 5 Post Office saying that, because of the contract with 6 Fujitsu, there is a bar to compliance with disclosure 7 obligations in criminal cases because the costs are 8 untenable or unaffordable. Do you accept that, that 9 that's what he's effectively saying, Mr Flemington? 10 A. I think he's saying that the costs are high or 11 significant. My reaction to that would have been that 12 this shouldn't be driven by cost. 13 Q. Yes. It's Mr Singh's concerns, though, that the 14 floodgate point that Mr Bowyer raises would have 15 an impact on ability to comply with disclosure. Do you 16 accept that? 17 A. I suppose, in one sense, he's saying the floodgates 18 would be very, very costly and the way I would have 19 looked at this would be to say, well, there might 20 technically be a limit on costs, et cetera, but 21 everything on the commercial side would be up for 22 renegotiation. 23 Q. Didn't this put you on notice, Mr Flemington, that there 24 was a concern that Post Office had not been complying 25 with their disclosure obligations in criminal cases 89 1 where Horizon issues were raised because of the 2 contractual issue with Fujitsu, because of the cost of 3 providing that information? 4 A. I don't recall making that conclusion. 5 Q. Because the implication from Mr Singh is "Well, we can't 6 afford to provide this disclosure in criminal cases 7 because it's too expensive and let's just hope that 8 somehow Post Office can muddle through". Isn't that 9 something that's quite worrying when you're thinking 10 about criminal prosecutions and disclosure and how 11 important disclosure is? 12 A. So my view would have been that cost would not be 13 a restriction on us complying with our legal 14 obligations; how could it be? 15 Q. Did you respond to Mr Singh and say, "No, absolutely 16 not, this cannot be the Post Office's approach"? 17 A. I can't recall, I'm afraid. 18 Q. Did you speak to anyone about it? 19 A. It's likely I would have spoken to Susan Crichton about 20 it. 21 Q. Was the matter ever resolved between Post Office and 22 Fujitsu? Are you aware of any meetings where it was 23 said, "We simply can't afford to be bled dry in this way 24 because we have absolute disclosure obligations in 25 criminal cases"? 90 1 A. I think there may have been discussions with Fujitsu 2 around assistance for disclosure obligations. I can't 3 recall when those would have been but they may have been 4 in 2012/2013. 5 Q. Did you make any enquiries as to whether this had been 6 a problem or an issue with disclosure in past criminal 7 prosecutions, such that they might be unsafe? 8 A. I can't recall that. 9 Q. Why not, given what Mr Singh says? 10 A. Sorry, I simply can't remember. 11 MR JACOBS: Okay, very well. I don't have any further 12 questions, thank you? 13 SIR BRIAN LANGSTAFF: Thank you Mr Jacobs. Is it Mr Henry 14 or Ms Page? 15 MR STEVENS: Mr Henry. 16 Questioned by MR HENRY 17 MR HENRY: Thank you very much, sir. 18 Mr Flemington, if it were to be suggested that your 19 evidence is a sustained study in accountability, what 20 would you say? 21 A. I've tried to answer the questions, sir, to the best of 22 my recollection. 23 Q. I want to pick up on what Mr Jacobs has said and you 24 saying that you would have given unequivocal advice that 25 costs shouldn't enter in the issue concerning data. Do 91 1 you remember, you've just -- 2 A. Yes. 3 Q. Could we go, please, to POL00143384, and could we go 4 down, please, to -- well, we can see: 5 "Do you think we should invite Simon Baker to the 6 call?" 7 So that's the Company Secretary asking for your 8 opinion on that. So you're clearly, you know, being 9 consulted by the Company Secretary as to whether 10 Mr Baker should be involved, correct? 11 A. Yes. 12 Q. Go down, please, to your email and that is 16 July 2012. 13 This, of course, is in the aftermath of Second Sight, 14 and it looks like full steam ahead for the Post Office, 15 doesn't it? 16 "... assume your recollection hasn't changed and is 17 still to keep fighting any such application?" 18 That would be an abuse of process application: 19 "Issues appear to be: 20 "Comms brief needed to rebut the myths/untrue 21 reporting about Second Sight review. 22 "Clarity [regarding] Second Sight's terms of 23 reference, timetable etc. 24 "A plan/bible of what information we are going to 25 provide our legal teams [with] and the courts if we have 92 1 to fight applications to stay. 2 "Plan to deal with disclosure requests, eg how we 3 balance obtaining transaction logs and other Horizon 4 data alongside the costs of doing so." 5 Do you want to reflect on the answer you gave to 6 Mr Jacobs? 7 A. So point 4 is about -- in terms of doing sensible 8 budgeting and it's basically saying that we would have 9 to be able to find the money to do these activities. 10 Q. Well, it doesn't actually say that, does it? How we 11 balance obtaining transaction logs -- 12 A. Sorry, I think it's a poor choice of words by me because 13 I think it's ambiguous but -- 14 Q. But they are your words, Mr Flemington. 15 A. And I agree but the sentiment of them was that we were 16 going to have to have budgeting issues in order to find 17 the money to do this. 18 Q. You seemed to be quite involved in criminal law for 19 somebody who said that you weren't involved in criminal 20 law at all. What do you have to say to that? 21 A. I found myself getting drawn into these matters 22 occasionally and sporadically, and I would always try to 23 progress the matter in good faith where I could but, 24 where I couldn't, I would escalate up to Susan Crichton. 25 Q. I want to go back now to October 2010, and no need to 93 1 get it up on the screen because you'll remember the 2 emails from Mandy Talbot but, just before the Seema 3 Misra trial begins, you're contacted by her in 4 an attempt to arrange, and I quote: 5 "A conference call to discuss how we deal with these 6 cases going forward, possibly on 20 October as by then 7 I anticipate that Misra will have concluded." 8 Then on 21 October 2010, when the jury was out in 9 Mrs Misra's case, Mrs Mandy Talbot sent you another 10 email, a second attempt at organising a conference and 11 you're first on the distribution list. 12 Now, your evidence, as I understand it, is that 13 you're accidentally drawn into those emails because, 14 really, it's nothing to do with you? 15 A. So if I was drawn into things, such as the conference 16 about Second Sight or the Wylie emails, or the like, it 17 wasn't at my choosing, it wasn't at my control and, at 18 that point, I thought, "I will try to progress matters 19 as best I can and, where I can't, I will escalate them". 20 Q. May I make a suggestion: these cases concerning Horizon 21 that Mandy Talbot was involving you in, in October 2010, 22 reflected the Post Office's policy of bringing test 23 cases and, of course, nobody knew what the outcome of 24 the Misra trial would be and you were involved in this 25 to, as it were, deal with policy, because what would 94 1 have happened if, for example, Seema Misra's case had 2 ended in an acquittal? You would have that to have been 3 involved in dealing with the aftermath of that, 4 consistent with your responsibility? 5 A. There's two things would like to say to that, sir, one 6 is that I can't recall any meetings ever happening on 7 that and that particular work strand going forward; and, 8 secondly, this probably was in the context of separation 9 and the fact that, actually, Mandy Talbot was thinking 10 in terms of, eventually, Royal Mail Civil Litigation 11 won't be doing these cases and will hand over conduct of 12 them to Post Office. So my -- I can't recall, but 13 I think it's likely she was starting to think about 14 planning that transition over. 15 Q. I suggest that's a rationalisation and, of course, it 16 would have absolutely nothing to do, that answer, with 17 your receipt of the Horizon bandwagon email, would it -- 18 A. I believe -- 19 Q. -- later that afternoon? 20 A. No, I remember, I quite remember the email you're 21 talking about because that was the one where I thought 22 the language was not good. 23 SIR WYN WILLIAMS: Inappropriate. 24 A. Yes. 25 SIR WYN WILLIAMS: Right. 95 1 A. But there was a point -- I think there was another email 2 not in my bundle but someone else's, where there's 3 a thank you for involvement on Misra and I think I might 4 have been on that, and I remember contacting the person 5 who sent it and said, "Thank you for the sentiment but 6 I'm absolutely not involved in the Misra case". 7 MR HENRY: You say that but, of course, in July 2013, as we 8 saw from Mr Stevens' last questions to you, there's the 9 Will Gibson email, just after the second break, and you 10 say that was drafted by Jarnail Singh. 11 A. Yes, sir. 12 Q. So why do you copy him into it, if he's drafted it? 13 A. Because if Mr Gibson had any further follow-up questions 14 he could go to Mr Singh. 15 Q. I see. I want to go to one final document, please, 16 POL00031352. That is sent on 1 July, and it's "Discuss 17 of defect in Horizon in court Seema Misra and Lee 18 Castleton". 19 By that stage, you were aware, were you not, of the 20 difficulties with Gareth Jenkins? 21 A. I can't recall. 22 Q. You can't recall? You were shortly aware thereafter, 23 your answers to Mr Stevens, about the difficulties with 24 Gareth Jenkins. 25 A. There would have been some point at which Gareth Jenkins 96 1 as an issue was flagged during those two weeks in July 2 but I cannot recall precisely when. 3 Q. I mean, it's clear -- you're the first recipient of 4 this, together with the Company Secretary, also the 5 Chief Information Officer, Lesley J Sewell. It's clear 6 that Gareth Jenkins is the linchpin of your defence in 7 Horizon and then he was, to your knowledge, "damaged 8 goods". Why wasn't the CCRC immediately informed of 9 this, Mr Flemington? 10 A. I wouldn't have the knowledge to know to inform them and 11 I would be relying on Mr Singh and Cartwright King to 12 flag that. 13 Q. Is that your evidence, Mr Flemington, that you wouldn't 14 have appreciated what you, as Head of the Legal 15 Department, ought to have urgently tabled for 16 discussion? 17 A. I was surrounded by other lawyers and expert advisers 18 and external counsel, and I cannot recall that point as 19 an urgent matter being highlighted at all. 20 Q. So this all becomes, does it not, part of a picture of 21 mutually delegated irresponsibility: somebody else is 22 dealing with it? 23 A. No, sir, we are trying to take advice, taking advice and 24 acting on it in good faith. 25 MR HENRY: Thank you, Mr Flemington. 97 1 SIR WYN WILLIAMS: Thank you, Mr Henry. 2 So is it Ms Dobbin or Ms Oliver? 3 MR STEVENS: Thank you. There's one point I need to clarify 4 now arising from those questions. It's an answer 5 Mr Flemington gave on the [draft] LiveNote, page 95, 6 line 18. Mr Flemington you said: 7 "But there was a point -- I think there was another 8 email not in my bundle but someone else's where there's 9 a thank you for involvement on Misra and I think have 10 been on that and I remember contacting the person who 11 sent it and said thank you for the sentiment but I'm 12 absolutely not involved in the Misra case." 13 A. Yes. 14 Q. Can I check what bundle you're referring to? 15 A. Not in my bundle, I'm sorry. 16 Q. Yes, but you say "I think there was another email not in 17 my bundle but someone else's"? 18 A. I can't recall. 19 Q. Have you read someone else's bundle of documents for 20 these Inquiry proceedings? 21 A. No, I haven't. I will have seen something on one of the 22 publicly available live feeds. 23 MR STEVENS: Thank you. 24 Sir, that was a simple point of clarification I 25 wanted to make. 98 1 SIR WYN WILLIAMS: Fine okay. 2 Next, please. 3 Questioned by MS OLIVER 4 MS OLIVER: Thank you, sir, it's Ms Oliver today. 5 Good afternoon, Mr Flemington. I ask questions on 6 behalf of Gareth Jenkins. You've said that you have no 7 criminal litigation experience. 8 A. Correct. 9 Q. The thrust of your evidence had been that you left 10 supervision of Jarnail Singh largely to Susan Crichton? 11 A. I didn't leave supervision to Susan Crichton; Susan 12 Crichton was the GC and that is the way she organised 13 the department set-up. She said at the outset, "You 14 won't be supervising Criminal Litigation or Civil 15 Litigation. I will do that". 16 Q. You've said that you were not aware of whether 17 Ms Crichton had herself any experience in criminal 18 litigation? 19 A. Correct. 20 Q. Did you consider that to be appropriate, that there was 21 one lawyer in POL responsible for the prosecution of 22 subpostmasters but who was, in effect, working 23 unsupervised by anyone with criminal litigation 24 experience? 25 A. So that was the way it was dictated to me it would be 99 1 set up. I had asked before separation, "Would we go and 2 recruit a criminal lawyer?" and was told, no, that it 3 had been agreed at quotes "a high level" that one lawyer 4 was enough and that they were being transferred over 5 from the Criminal Law Department. 6 Q. Do you agree that made POL Legal significantly reliant 7 on the expertise and competence of Mr Singh? 8 A. To a degree but you have to consider that we also had 9 Cartwright King and, subsequently Brian Altman reviewing 10 the work of Cartwright King, if you will, and there was 11 no restraint or limit on how much Cartwright King could 12 be used or deployed in the business in relation to the 13 criminal prosecutions. 14 Q. When criminal prosecutions came within your purview as 15 Head of Legal, did you take any steps to understand or 16 familiarise yourself with any of the criminal law upon 17 which POL bought those prosecutions? 18 A. So, I would not say that they came within my purview. 19 They were always to be supervised and within the purview 20 of Susan Crichton. 21 Q. When they came within your team, then, did you take any 22 steps to understand or familiarise yourself with any of 23 the criminal law that was applicable? 24 A. I did get an initial briefing from Jarnail Singh on the 25 overarching aspects of the criminal law, in relation to 100 1 POL prosecutions but, again, I was not responsible for 2 those -- the carriage of those prosecutions or the 3 supervision of Mr Singh? 4 Q. Did you ever review the POL prosecution files or dip 5 sample the prosecutions that were being conducted? 6 A. No, I did not. 7 Q. In relation to Cartwright King, then, did POL have any 8 arrangements for reviewing their work or sampling the 9 files on cases that they were responsible for 10 prosecuting? 11 A. I can't recall the specific provisions of their retainer 12 and their engagement letter. 13 Q. All right. Can we turn, then, please to the Simon 14 Clarke Advice. Do you recall that that was sent to you 15 on 17 July 2013? 16 A. I don't recall off the top of my head no, but -- 17 Q. Do you think that sounds about right or would you like 18 to go to the email? 19 A. May we go to the email, please? Sorry. 20 Q. Of course. It's POL00192249, please. Thank you. If we 21 can go down to the third email, please. So this is 22 an email from Martin Smith to Susan Crichton copying 23 you: 24 "Susan 25 "Please find attached Simon Clarke's Advice 101 1 concerning Gareth Jenkins. 2 "Kind regards, 3 "Martin." 4 Do you recall receiving that on 17 July? 5 A. I don't know because -- I don't recall receiving it 6 sorry. I was on sabbatical by then. 7 Q. Do you agree that, during the course of your sabbatical, 8 you continued to engage with emails that were sent 9 during that time? 10 A. Very occasionally. 11 Q. Did -- 12 A. Sorry, I'd been given a specific lecture by Ms Crichton 13 to try to not look at the BlackBerry because I'd already 14 been raising issues about splitting up my role. 15 Q. We can go to some examples, if necessary, but do you 16 agree that those emails that you did engage with 17 involved correspondence with Susan Crichton, Jarnail 18 Singh, Rodric Williams, lawyers from Bond Dickinson, 19 lawyers from Cartwright King? 20 A. I think there were about three or four emails, from my 21 recollection. 22 Q. Do you recall that they concerned topics such as the 23 review of criminal cases, questions of disclosure, the 24 instruction of the criminal QC? 25 A. Yes, they may have done. 102 1 Q. Right. You respond to one of those email threads on 2 17 July. Do you think that makes it more likely that 3 you would have seen the Simon Clarke advice at the time 4 it was sent to you? 5 A. Not necessarily because -- I tell you why very 6 specifically, in that I hated reading attachments on the 7 BlackBerry. I would read cover-notes but attachments 8 I found difficult to see with eyesight. So, for that 9 reason, I would tend not to read attachments. In terms 10 of the content of those other emails, there's 11 a possibility I was at the con on 3 July and that 12 matters got mentioned out of those. It's possible that 13 matters got mentioned out of other discussions that 14 happened in those first two weeks when I was in the 15 office but I can't, hand on heart, specifically recall 16 seeing the printed advice at this time. 17 Q. All right. In terms of the substance of those 18 discussions, then, can we please go to POL00407582, 19 please. Thank you. This the attendance note that 20 you've already been taken to -- 21 A. Yes. 22 Q. -- of a conference at Bond Dickinson that you attended 23 with Susan Crichton. It starts by saying: 24 "I had some time with HF ..." 25 Presumably that's you? 103 1 A. Yes. 2 Q. "... before Susan Crichton joined us", and there was 3 a discussion about Cartwright King and Rob Wilson. 4 If we go down then, please, to point 6, and here 5 it's recorded: 6 "The real worry was around the Fujitsu expert who 7 appeared to have known of some of the problems but not 8 referred to them in his report or statement even though 9 they could be dismissed. There are non-disclosure 10 issues here. They are looking at replacing that expert 11 with somebody else." 12 Do you recall that being a feature of the 13 discussion? 14 A. I don't recall it specifically. 15 Q. Do you agree that that seems to indicate that, even if 16 the Simon Clarke Advice was something you didn't engage 17 with during your sabbatical, you must have been aware 18 that there was a real worry within POL about Mr Jenkins' 19 statements being used in previous prosecutions, that 20 these concerns related to non-disclosure of the bugs 21 revealed to Second Sight and that there was 22 an understanding that he could not be used as an expert 23 in prosecutions going forward. 24 A. It's possible, yes, but I would have expected that Susan 25 Crichton was then dealing with that. 104 1 Q. You've agreed with questions from Counsel to the 2 Inquiry, that, once knowledge of those concerns came to 3 POL, it would be very important for the Post Office to 4 understand how Mr Jenkins had been instructed; do you 5 remember giving that evidence? 6 A. I don't but, yes, if you ... 7 Q. Your evidence is that you would have expected 8 Ms Crichton to do that; is that right? 9 A. Yes. 10 Q. Did you take any steps to understand what investigations 11 she had undertaken or what she had learned of those 12 features? 13 A. I can't recall that being discussed when I came back. 14 That's not to say it wasn't. 15 Q. Did you, before you left or when you came back, ever ask 16 to see any instructions which POL or Cartwright King had 17 provided to Mr Jenkins? 18 A. I can't recall, sorry. 19 Q. You've said you can't remember speaking to Mr Singh 20 about how he instructed Mr Jenkins. Do you remember 21 speaking to the external lawyers at Cartwright King 22 about whether Mr Jenkins had been instructed about his 23 expert duties of disclosure? 24 A. I don't specifically remember, no. 25 Q. Did the issues that were being raised about Mr Jenkins 105 1 by Cartwright King, before and after the publication of 2 the written advice by Simon Clarke, give rise to any 3 concern on your part that they might be indicative of 4 broader prosecutorial failings on the part of POL? 5 A. No. 6 Q. Do you think that was an oversight on your part? 7 A. No, I just don't think I'd have thought about the point. 8 Q. Were you aware of the obligations that POL held in 9 relation to how they handled expert evidence in the 10 course of criminal prosecutions? 11 A. So that's why I felt we were taking expert advice from 12 Cartwright King at this point, that any issues like this 13 would be flushed out and then could be addressed. 14 Q. Did you ever consider that an appropriate course might 15 be to speak to Mr Jenkins in order to understand the 16 circumstances in which he came to give evidence in these 17 cases? 18 A. Again, I suppose I would have thought that Susan 19 Crichton was dealing with that. This was surfacing just 20 before I was going away and she would have had conduct 21 of it for the next six weeks. 22 Q. Can we go to POL00193383, please. Thank you. If we can 23 go to the third email, please, this is an email from 24 Rodric Williams to Lesley Sewell copying Susan Crichton, 25 Simon Baker and you. It attaches two draft documents 106 1 addressed to Fujitsu, which Mr Williams said were: 2 "... to put us 'on the record' with Fujitsu about 3 the issues raised in Second Sight's Interim Report." 4 One is described a "shot across the bow"; the other 5 as a "letter of claim". 6 Despite this being during the period of your 7 sabbatical, do you agree you appear to reply on the same 8 day to ask whether the draft documents have been 9 discussed within Legal? That's the next email up, if we 10 can scroll up, please. 11 A. Yes, I do. 12 Q. If we can please go to one of the attachments, which is 13 POL00140620, and page 2, paragraph 4 -- thank you -- we 14 see there that it's said: 15 "Post Office was therefore disappointed to discover 16 that witness evidence prepared by Fujitsu may not have 17 been fully disclosing historic (albeit known and 18 resolved) defects. This has led to Post Office having 19 to review all its historic criminal prosecutions for the 20 last 3 years ... to ensure that it has not breached its 21 duties of disclosure under the Criminal Court rules." 22 Do you agree that your email we just looked at 23 rather suggests that this was an attachment that you 24 would have opened? 25 A. I honestly didn't look at attachments and I -- so 107 1 I wouldn't have opened and seen this. 2 Q. So is it something that you looked at when you returned 3 to POL, after your period of sabbatical? 4 A. I would have -- I remember speaking to Susan Crichton 5 when I returned and, because, in the context she was 6 resigning, there was very quickly activity around 7 dividing up matters and responsibility for matters and 8 I cannot remember this being assigned to me, in terms of 9 progressing that -- if it was to be progressed, it was 10 being progressed by someone else but I can't honestly 11 remember. 12 Q. Can you recall any discussion at all as to whether to 13 write to Fujitsu in these terms? 14 A. No, I can't. 15 Q. What decision was ultimately made in that regard? 16 A. I can't recall anything in that -- in relation to that, 17 sorry. 18 Q. Thank you. One final document from me, please. It's 19 POL00155555. This is a handwritten note, we know that 20 it was authored by Rodric Williams. The date of the 21 note, at the top right-hand corner, appears to be 22 2 September 2013, which was the Monday before you, in 23 your statement, say that you returned from your 24 sabbatical. You returned on 3 September; is that right? 25 A. I think I may have returned on the 2nd. 108 1 Q. All right. So you returned on the very day that this 2 note appears -- 3 A. Yes. 4 Q. -- to have been authored? 5 A. Yes. 6 Q. The note refers to conversations with Martin Smith of 7 Cartwright King. If we can please go down to the bottom 8 of page 1, do you see, in the right-hand box, the 9 question: 10 "What were we doing to instruct GJ"? 11 A. Yes. 12 Q. Do you understand that's likely to be a reference to 13 Mr Jenkins? 14 A. Yes, yeah. 15 Q. Then, in the left-hand list, first arrow point down: 16 "Don't think he's ever been advised of his duties." 17 Do you see that? 18 A. Yes. 19 Q. Were the contents of this note ever discussed between 20 you and Mr Williams? 21 A. I can't recall discussing this at all. 22 Q. Can you recall whether it was known within POL by 23 September 2013 that POL had failed to instruct 24 Mr Jenkins as an expert witness in his expert duties or 25 that there was at least a very serious question as to 109 1 whether it had ever instructed him in that way? 2 A. I would have -- I would have probably known of the issue 3 per se but I can't recall what level of knowledge there 4 was across POL, if that was your question, sorry. 5 Q. Would you have regard it as significant information that 6 you ought to have been told the contents of this note? 7 A. Yes. 8 Q. Do you know whether it was for this reason that a draft 9 letter of claim was not sent to Fujitsu? 10 A. No, I don't know. 11 Q. Do you recognise that POL's failure, referred to in this 12 note, to instruct Mr Jenkins in his expert duties and in 13 accordance with their legal duties, was an exceptionally 14 serious matter because it gave rise to real questions 15 about the basic competency of its prosecutors? 16 A. So, obviously, it's not my note and I didn't author it 17 and I can see there it's talking about raising questions 18 of what were we doing and don't think -- but I don't see 19 it's conclusively coming to a conclusion that there is 20 an issue there. 21 Q. Do you think that the serious question over whether 22 Mr Jenkins had been advised of his expert duties is 23 something that POL ought to have treated with the utmost 24 seriousness? 25 A. Yes, but if I look at this note, the issue is being 110 1 thought about and worked on and discussed. 2 MS OLIVER: Thank you. Those are my questions. 3 SIR WYN WILLIAMS: Well, that's extremely good timing. So 4 my gratitude to the representatives of the Core 5 Participants who have tailored their questions to finish 6 promptly at 1.00. 7 So thank you, Mr Flemington, for coming to give 8 evidence and providing a witness statement. I'm 9 grateful for your participation in the Inquiry. 10 THE WITNESS: Thank you, sir. 11 SIR WYN WILLIAMS: Mr Stevens, 2.00? 12 MR STEVENS: Yes, sir. 13 THE WITNESS: Sir, may I just make one point -- 14 SIR WYN WILLIAMS: Yes. 15 THE WITNESS: -- which is I had agreed with Mr Stevens that 16 I would have actually like to say some words at the 17 start to express how sorry I was. 18 SIR WYN WILLIAMS: Well, please say what you wish to now. 19 THE WITNESS: Thank you. 20 So I just wanted to say how sorry, personally, 21 I felt for all the pain and suffering that has been 22 caused by this scandal to all the people who have 23 suffered. I hope today that, in some small way, my 24 witness appearance will help the Inquiry establish 25 lessons learned. 111 1 SIR WYN WILLIAMS: Thank you, Mr Flemington. 2 All right. We will start again at 2.00. 3 MR STEVENS: Thank you, sir. 4 (1.01 pm) 5 (The Short Adjournment) 6 (2.00 pm) 7 MS PRICE: Good afternoon, sir, can you see and hear us? 8 SIR WYN WILLIAMS: Yes, I can, thank you. 9 MS PRICE: May we please call Mr Bowyer. 10 HARRY BOWYER (affirmed) 11 Questioned by MS PRICE 12 MS PRICE: Could you confirm your full name, please, 13 Mr Bowyer? 14 A. Yes, it's Harry Bowyer. 15 Q. Thank you for coming to the Inquiry to assist it in its 16 work. As you know, my name is Emma Price and I will be 17 asking you questions on behalf of the Inquiry. 18 You should have a hard copy of a witness statement 19 provided by you to the Inquiry in front of you; do you 20 have that? 21 A. I have that. 22 Q. It is dated 2 April 2024. If you turn to page 32 of 23 that, please, does your copy have a visible signature? 24 A. It does. 25 Q. Is that your signature? 112 1 A. It is my signature. 2 Q. I understand there is a correction to the statement 3 you'd like to make; is that right? 4 A. Yes. I state in paragraphs 26 and 69 that I wasn't 5 aware of the backdoor into the Horizon system until the 6 Deloitte report. I've seen emails since, which show 7 that I was told about it in November 2012. 8 Q. With that correction made, are the contents of that 9 statement true to the best of your knowledge and belief? 10 A. To the best of my knowledge and belief. 11 Q. That statement, for which the reference is WITN10990100, 12 is now in evidence and will be published on the 13 Inquiry's website in due course. 14 Starting, please, with your professional background. 15 You joined Cartwright King Solicitors in the summer of 16 2008, is that right -- 17 A. That's correct. 18 Q. -- having been in practice at the independent Bar before 19 that since 1990? 20 A. Yes. 21 Q. Your practice at the independent Bar had been 22 exclusively criminal? 23 A. Exclusively criminal. 24 Q. You had been involved in both prosecution and defence 25 work? 113 1 A. Indeed. 2 Q. You say in your statement that when you joined 3 Cartwright King, you were the first employed barrister 4 in the firm; is that right? 5 A. Yes, I was. 6 Q. But in the few years which followed, the firm expanded 7 their advocacy department by employing a large number of 8 barristers and solicitors with higher rights to cover 9 almost the entirety of their Crown Court work? 10 A. That's correct. 11 Q. Can we have on screen, please, paragraph 5 of 12 Mr Bowyer's statement, that's page 2. At paragraph 5 13 you say this: 14 "When I joined [Cartwright King] they had 3 offices, 15 Nottingham, Derby and Leicester. They embarked on 16 a period of rapid expansion by acquiring other firms of 17 solicitors. At their peak they had around 20 offices 18 from London to Newcastle. This involved a great deal of 19 fairly ruthless reorganisation as they cut away the dead 20 wood." 21 Thinking back to the rapid expansion that took 22 place, was the reason behind this that it would enable 23 Cartwright King to prosecute Post Office cases in-house? 24 A. No. 25 Q. No? 114 1 A. No, the expansion was at the time there was a proposal 2 that legal aid firms would be limited to a very few in 3 each legal aid area. So what they were trying to do was 4 put themselves in as many legal areas so they could bid 5 for the contracts. 6 Q. Did the fairly ruthless reorganisation you refer to have 7 any impact on the Post Office work which was being done 8 at the time by the Advocacy Department? 9 A. I don't think so. 10 Q. That can come down. Thank you. 11 Did members of the Advocacy Department prosecute 12 Post Office cases in both the Magistrates Court and the 13 Crown Court? 14 A. There was quite a lot of work that was prosecuted in the 15 Magistrates Court and the Crown Court but most of the 16 Crown Court work went out to external counsel. 17 Q. The Advocacy Department was based in the Nottingham 18 office; is that right? 19 A. That's correct. 20 Q. The head of department was initially one of the equity 21 partners, Steve Gelsthorpe? 22 A. That's correct. 23 Q. Then Andy Cash took on the role, followed by Mark 24 Hopwell? 25 A. That's right. 115 1 Q. You say in your statement that it was Andy Cash who 2 introduced the then Royal Mail Group work to Cartwright 3 King? 4 A. That's right. 5 Q. He was based in the Derby office but spent more time in 6 the Nottingham office when he became Head of the 7 Advocacy Department? 8 A. That's correct. 9 Q. Was there any provision at Cartwright King for training 10 in relation to private prosecutions and, in particular, 11 prosecution disclosure obligations in private 12 prosecutions? 13 A. There was very little. 14 Q. Very little as in none or some? 15 A. Well, as far as I was concerned, the private 16 prosecutions that they did was the Royal Mail work 17 initially. They did some RSPCA work and Andy Cash 18 brought in the POL work, I think, around about 2012. 19 But as far as actual training was concerned, I certainly 20 wasn't trained and I don't know what happened to those 21 who were doing the POL work because it was being done in 22 other offices apart from mine. 23 Q. What were you told when you were first introduced to the 24 Royal Mail Group and then later Post Office Limited work 25 about the basis on which prosecutions were brought by 116 1 the Post Office and the history of this? 2 A. I'm not sure I was told very much at all. 3 Q. You were aware, though, that the Post Office was 4 bringing private prosecutions -- 5 A. Oh, absolutely, yes. 6 Q. -- and that was the work you were doing? 7 A. Yes. 8 Q. At the time, did you recognise any risk arising from the 9 Post Office being simultaneously victim, investigator 10 and prosecutor? 11 A. Well, at the time, I wasn't really involved with it. If 12 I'd addressed my mind to it then, yes, I probably would 13 have seen the difficulties that you've put forward. But 14 the Post Office work that -- the Royal Mail Group work 15 initially tended to be postmasters who -- or Royal Mail 16 workers who were stealing from the post and then, in due 17 course, the POL work was the work that this Inquiry is, 18 in fact, looking into. But, as far as I was concerned, 19 I didn't do very much of it at all, until Andy Cash came 20 into the Advocacy Department and then he started to pick 21 the brains of the various advocates there about various 22 issues and would ask us to write the odd advice, 23 charging advice, et cetera. 24 Q. You address at paragraph 31 of your statement the 25 training you received on the Horizon system. Can you 117 1 help with when you received this training? Do look to 2 the statement if you need to? 3 A. I can't recall. I think it would have been about 2012. 4 Q. You say that training did not cover the reconciliation 5 of balances; what did it cover, can you recall? 6 A. Well, I can't remember where it was. It was somewhere 7 up north. But they had a Horizon system and, 8 effectively, myself and a number of external counsel 9 were actually shown how the system worked, effectively 10 from a cashier's point of view. 11 Q. Were members of the Advocacy Department responsible for 12 keeping up to date with their own continuing 13 professional development obligations? 14 A. To an extent, yes. 15 Q. Was there any oversight of that by -- 16 A. Yes, there was. You had to show that you'd done your 17 CPC. 18 Q. You say in your statement that you were made a director 19 of Cartwright King during the period covered by the 20 Inquiry? 21 A. Yes. 22 Q. Can you recall when it was that you became a director? 23 A. I can't, I'm afraid. 24 Q. You say you were one of around 30 directors. What 25 responsibilities did you have as a director, over and 118 1 above those as a member of the Advocacy Department? 2 A. There were various responsibilities: file reviews was 3 one of the main ones, so we had to review the files of 4 other people in the department. 5 Q. But you say you held no equity in the firm; is that 6 right? 7 A. No, no. It was more of a rewards that came up with the 8 rations, rather than a pay rise. 9 Q. You resigned from Cartwright King in December 2015; is 10 that right? 11 A. That's right. 12 Q. What was the reason for your resignation? 13 A. Myself, Martin Smith and Simon Clarke wanted to set up 14 our own business. 15 Q. Is that something you went on to do? 16 A. That's something we went on to do. 17 Q. Turning, please, to your involvement in the Royal Mail 18 Group and, later, Post Office Limited work and dealing 19 first with the period prior to the Interim Second Sight 20 Report coming to your attention in 2013. Could we have 21 paragraph 8 of Mr Bowyer's statement on the screen, 22 please, that is page 2. On the last line on this page 23 you say: 24 "The RMG work was more provincial at that stage but 25 in 2012 Andy Cash bought the POL work into the firm 119 1 which was nationwide in nature." 2 You say that the Post Office work was nationwide. 3 Can you help with the scope of Cartwright King's 4 instructions to act for the Post Office and, in 5 particular, whether the general instruction of 6 Cartwright King covered criminal cases in Scotland and 7 Northern Ireland. 8 A. The answer is I can't help with that very much. We 9 didn't tend to do Scotland and Northern Ireland. That 10 was outsourced to other solicitors. Obviously, you've 11 got the Scottish law problem, which none of us were 12 capable of doing Scottish law. 13 Q. Certainly by around 2013, that was a firm called BTO 14 Solicitors from Scotland? 15 A. Those are the ones, yes. 16 Q. Can you recall the names of any other firms that were 17 involved, either for Scotland or -- 18 A. I can't recall. BTO was the one we dealt with most. 19 Q. What was your understanding of the prosecution process 20 for cases in these jurisdictions? 21 A. I didn't have an understanding at all, I'm afraid. 22 Q. Looking, then, at paragraph 9 of your statement. You 23 say: 24 "The bulk of the POL/RMG work was done by Martin 25 Smith, based in Derby and Andrew Bolc based in 120 1 Leicester. They would prepare the cases and brief them 2 out to counsel. The RMG work involved some of the same 3 type of cases as the later POL work but also involved 4 postmen stealing from the mail." 5 Then paragraph 10: 6 "When he was in Nottingham Andy Cash would ask my 7 opinion about the POL/RMG cases both informally, and on 8 occasion he would ask me to settle an indictment or 9 an advice on evidence. This would involve the file 10 being brought to Nottingham so that I could work on it. 11 It would then be returned to the lawyer working on it 12 and I would be unlikely to see it again as it would 13 usually be briefed out to counsel." 14 So that's what you were referring to earlier in 15 terms of cases going to counsel -- 16 A. Essentially, yes. 17 Q. -- in Crown Court work. 18 You address a case you prosecuted involving 19 a manager of a Crown Post Office at paragraph 12 of your 20 statement and you say it was a case that post-dated the 21 cessation of prosecution of Horizon cases and it was 22 a case that didn't rely upon Horizon evidence. 23 A. Yes. 24 Q. With this exception, is it your evidence that you did 25 not prosecute a trial? 121 1 A. I never prosecuted a trial for Post Office, I never had 2 conduct of a prosecution brief as counsel or as 3 litigator. I think I did a sentence in Nottingham 4 because it was in Nottingham and that's where I was 5 based but, apart from that, I don't think I did any 6 other court work. 7 Q. So this case at paragraph 12, when you so you prosecuted 8 it, are you saying it's not one that went to trial? 9 A. It pleaded. 10 Q. Okay. I understand. That can come down now. Thank 11 you. You say at paragraph 18 of your statement that 12 your direct contact with Post Office personnel was 13 fairly limited but that you had dealings with Jarnail 14 Singh, who you understood to be Head of Crime at Post 15 Office Limited. Who did you obtain instructions from at 16 the Post Office? 17 A. Well, I wasn't actually, as I said, instructed in any 18 cases. So I became involved either because Andy Cash 19 would ask me to do something on a case or ask me my 20 opinion about one of the cases, and I would also -- 21 I was also involved during the sift process, after the 22 Second Sight review came out. But, again, I would have 23 been asked by either Andy Cash or Simon Clarke to do the 24 work that I was doing. 25 Q. So in the instances where you provided written advice, 122 1 were you not taking direct instructions from the Post 2 Office? 3 A. No, I would be instructed from someone within Cartwright 4 King. 5 Q. I see. What was your working relationship with Mr Singh 6 like? 7 A. Pretty limited. I met him, I think, on two or three 8 occasions, once when Simon Clarke and I went down to 9 their Old Street offices in London and a couple of times 10 when he came up to Nottingham or Derby, and I spoke to 11 him on the phone and emailed. Occasionally, he would 12 email with questions and the like and I would respond 13 but the main point of contact between Cartwright King 14 and the Post Office was Martin Smith. 15 Q. You say at paragraph 38 of your statement that you were 16 aware from the beginning that the Horizon system was 17 being challenged by the Justice for Subpostmasters 18 group. By "from the beginning", do you mean from the 19 point that you became involved in any Post Office 20 prosecutions relying on Horizon evidence? 21 A. Yes, I only really became involved in about 2012. 22 Q. What about the system did you understand was being 23 challenged? 24 A. I understood that there were allegations that it was 25 throwing out false figures. 123 1 Q. Did you consider, at the time you provided advice on 2 Post Office prosecution cases, that you were under 3 a duty to act as a minister of justice in preference to 4 the interests of the client who had instructed you in 5 relation to the prosecution -- 6 A. Yes, certainly. 7 Q. -- that this entailed observing the highest standard of 8 integrity and having regard for the public interest -- 9 A. Yes. 10 Q. -- and that you owed a duty to the court to ensure that 11 the proceedings were fair? 12 A. Yes. 13 Q. Prior to being alerted to the content of the Interim 14 Second Sight Report, did you ever question whether the 15 evidence generated by the Horizon system could be relied 16 upon for the purposes of prosecutions? 17 A. Yes, we were assured, and it was our instructions, that 18 the system was robust. 19 Q. Who did you ask, if you questioned it, whether the 20 evidence could be relied upon? 21 A. The various caseworkers that -- the Investigators that 22 we were in touch with; later on, the various Post Office 23 lawyers that we came across. But they were all -- 24 I mean, one kept an eye on it because this was something 25 that we were going to have to counter. So, as far as 124 1 allegations that the system wasn't robust, we were 2 keeping our eyes out to see if there was any truth in 3 it, if there were any patterns. 4 Q. Did you receive assurances from Jarnail Singh? 5 A. I would have done, yes. 6 Q. You refer in a number of places in your statement to 7 assurances that you received from all sides that the 8 system was robust and that there was nothing that could 9 undermine the integrity of the system. Were these 10 assurances ones given before the Interim Second Sight 11 Report? 12 A. Yes. 13 Q. In this period, that is prior to the Interim Second 14 Sight Report, did you ever have difficulty getting 15 something from the Post Office in relation to 16 prosecutions? 17 A. Well, I was doing remarkably little of the work before 18 the Second Sight Report, so the answer is no. If 19 I wanted information, I could get it but, as I say, 20 I didn't hold the brief and I wasn't litigating the 21 cases. It was a question that people would ask me to 22 advise on a certain part of a case. It may be that they 23 wanted an interim advice or they may want an advice on 24 a particular thing; it might have been that the advice 25 they asked for was verbal; I would be asked a question 125 1 by Andy Cash and I would answer it there and then but, 2 as I said, I wasn't actually working on these cases 3 a very great deal, I had a full caseload of the defence 4 work that I was actually employed by Cartwright King to 5 do. 6 Q. Could we have on screen, please, paragraph 21 of 7 Mr Bowyer's statement. That's page 5 towards the 8 bottom, please. At paragraph 21 you say this: 9 "It is probably fair to say that the [Cartwright 10 King] Post Office department would have benefited from 11 proper oversight from the earliest stages from people 12 with actual experience of prosecuting cases rather than 13 different individuals in different offices doing their 14 own thing." 15 What do you mean by "different individuals in 16 different offices doing their own thing"? 17 A. Well, as I said, the bulk of the work was done by Martin 18 Smith in Derby and Andrew Bolc in Leicester. When I was 19 first aware of the Post Office work, I wasn't -- I was 20 aware that they were doing it and I was aware that they 21 were briefing external counsel. I didn't realise that 22 both had such limited prosecution experience at the time 23 and, as far as that was concerned, you know, that 24 plainly wasn't a safe state of things. But I discovered 25 about that much more when we were reviewing the cases 126 1 and when we'd effectively stopped prosecuting cases. 2 Q. Can you help with what you had in mind when you refer to 3 proper oversight from people with actual experience of 4 prosecuting cases? 5 A. Well, there are various things, disclosure of course is 6 a main one. Charging advices is a second one. You 7 know, as far as the two individuals who were preparing 8 the cases, as I said, I don't think they had any 9 experience of preparing prosecution cases until they 10 were given this role at Cartwright King. 11 Q. Who should have provided this oversight, do you think? 12 A. Well, it should have been someone, their Head of 13 Department. Having them in different offices can't have 14 helped. There should have been a Post Office department 15 where they were in the same room, where they were 16 actually able to pool what knowledge they had together. 17 But that wasn't the case. 18 Q. It may follow from your answer given just now, but was 19 this lack of proper oversight something which you 20 recognised at the time that you were doing Post Office 21 work? 22 A. Well, it -- I became more aware of it after the Second 23 Sight came in and we were doing the Sift Reviews, as to 24 what was actually going on. But, as I said, I was based 25 in Nottingham; they were in different counties. 127 1 Q. Did you raise it at the time with anyone else within 2 Cartwright King as a suggestion? 3 A. Not at the time, no, because, as I said, by the time it 4 really became apparent, we weren't prosecuting any more. 5 Q. Could we have on screen, please, reference POL00293276. 6 This is a letter from Cartwright King to Rodric Williams 7 from the Post Office. It's dated 13 January 2020, so 8 post-dates your departure by around four years. 9 A. Yeah. 10 Q. I'd like to ask you, however, about an observation made 11 in this letter about the relationship between Cartwright 12 King and the Post Office. The context for this letter 13 is a review by Cartwright King of the work it had done 14 for the Post Office since April 2012, which concluded 15 that there were a number of improvements and changes in 16 practice which could be made. 17 Going, please, to point 3 on the second page of this 18 document, the author says this: 19 "Further to the two points noted above, we are 20 becoming increasingly concerned at the somewhat 21 disjointed way in which we presently approach POL work. 22 This arises because there is no single dedicated point 23 of contact within [Cartwright King] for [Post Office 24 Limited], as witnessed by the common use of cc'd emails 25 to all three [Cartwright King] lawyers undertaking [Post 128 1 Office Limited] work. The problem here is that a lack 2 of continuity on individual pieces of work, together 3 with deficit in oversight over the landscape in which 4 [Cartwright King] meets [Post Office Limited] 5 requirements and advises thereon. In plain English, 6 this means that there is an increasing risk that advice 7 on one topic might fail to take into account the impact 8 of that topic on another area of [Post Office Limited] 9 work, with the consequent risk that [Post Office 10 Limited], and [Cartwright King], are exposed. Of 11 particular concern here is [Post Office Limited's] 12 disclosure duties arising out of the recent judgment, 13 and the need to advise [Post Office Limited] on current 14 and future Crown Prosecution Service prosecutions." 15 Do you agree with the assessment here of the 16 potential consequences of a lack of oversight and, in 17 particular, the risk that advice on one topic might fail 18 to take into account the impact of that topic on another 19 area of Post Office work? 20 A. Yes. 21 Q. Would you agree that that risk was relevant to Post 22 Office disclosure duties in 2012 and onwards, not just 23 at this point -- 24 A. Absolutely, yes. 25 Q. -- in 2020? 129 1 A. Yes. 2 Q. Is this the type of risk you had in mind when you flag 3 up in the statement to the Inquiry the lack of proper 4 oversight? 5 A. Yes. 6 Q. Is it a risk that you recognised at the time? 7 A. Like -- as I said, my appreciation of how Cartwright 8 King were doing it increased when I got into the sift 9 work because that was when I was actually concentrating 10 on reviewing the cases. But, yes, it was plainly 11 unsatisfactory. 12 Q. That document can come down now. Thank you. 13 I'd like to move, please, to the advice you gave in 14 the case of Kim Wylie. You deal with your advice dated 15 11 July 2012 at paragraph 39 of your statement, if you 16 wish to follow. At the time of providing your 17 statement, you had not seen your earlier advice, which 18 is referred to in that July 2012 advice. The Inquiry 19 has relatively recently located that initial advice and 20 I understand that that has been provided to you. 21 A. I've seen it. 22 Q. That is, in fact, dated October 2011 rather than 2010? 23 A. Yes. 24 Q. I think that 2010 date comes from the date given in the 25 July 2012 advice. Could we have on screen, please, 130 1 POL00424121. This is the covering email from you to 2 Robert Daily, dated 28 October 2011. Was Robert Daily 3 the Investigator in the case? 4 A. Very probably but I can't recall. 5 Q. It is copied to Rob Wilson, Head of the Royal Mail Group 6 Criminal Law Team at the time; is that right? 7 A. I think so. I think this is probably still under the 8 RMG umbrella. 9 Q. It is also copied to Andy Cash and Rachael Panter. Can 10 you help with what Rachael Panter's role was at the 11 time? 12 A. Well, at the time, I wasn't aware of her role. She was 13 based in Leicester with Andrew Bolc. She was, as 14 I understand it -- I think she passed her Bar exams but 15 I think she was a comparative baby to the role that she 16 appears to have been conducting. 17 Q. Going, then, to the initial advice itself, could we have 18 that on screen. The reference is POL00424122. Can you 19 help, having had the opportunity to read this document, 20 with the purpose of this initial advice and, in 21 particular, was it an advice on whether the prosecution 22 test was met in the case? 23 A. Yes. Having read it, I can see that there is no 24 discussion of the evidential test or the public interest 25 test, which, looking back on it, there should have been. 131 1 It's not to say that I wasn't aware of those two 2 particular issues but I should have discussed them in 3 the advice. It would have been an advice that would 4 have been at the very early stages as to what -- the 5 evidence we required and the charges that we should 6 prefer. 7 Q. You set out the prosecution case in the first paragraph, 8 in that: 9 "At the end of June 2010, Ms Wylie received a letter 10 informing her that Winlaton Post Office would be 11 migrating to Horizon Online. On 9 July 2010 she 12 reported a £33,142.96 shortage in trading period 4. She 13 could not explain how the shortage had occurred. The 14 HOL Advisor, Brian Cordery, reported concerns that he 15 had been presented with money twice whilst conducting a 16 cash check prior to migration. On 10 September 2010 17 an audit was carried out at Winlaton sub post office 18 branch by Mr Ged Dresser and Bryan Marshall, Post Office 19 Field Support Advisors, which revealed a deficit in the 20 accounts of £5,434.93." 21 There is then a summary of what Ms Wylie said in 22 interview, which included the fact that she could not 23 explain the shortages as she hadn't done anything 24 incorrectly. She says she was aware that the cash would 25 be checked after she received the letter about migration 132 1 to Horizon Online. She reported the cash shortage after 2 receipt of this letter. 3 Just going over the page, please. She denied theft 4 and false accounting and cast doubt on the integrity of 5 the Horizon system, blaming it for the error. 6 You then say this of the defence case: 7 "The most obvious route for the defence in this case 8 is to suggest that the Horizon system is flawed or 9 possibly that another member of staff stole the money." 10 Just pausing there, this initial advice pre-dates 11 the instruction of Second Sight? 12 A. Yes. 13 Q. You do not seem surprised in this advice that Ms Wylie 14 was blaming the Horizon system for the loss. Does that 15 mean that this was not the first case in which you were 16 involved where a subpostmaster was attributing 17 a shortfall to the problems with the Horizon system? 18 A. It was certainly within my knowledge that people were 19 blaming the Horizon system at that stage, yes. 20 Q. Can you recall how many cases of this nature you had 21 been involved with previously? 22 A. As I said, very few at the time. 23 Q. You deal with the statements which would be needed in 24 the next paragraph and, at the last bullet point in this 25 section, you say: 133 1 "We will need to prove the integrity of the Horizon 2 system as there appears to be apocryphal evidence on the 3 Internet that it is causing big losses to postmasters." 4 Can you recall what the evidence on the Internet 5 that the Horizon system was causing big losses to 6 postmasters was? 7 A. I'm afraid I can't but the subpostmasters were making 8 a lot of noise at this particular stage and, obviously, 9 we'd heard about it. 10 Q. Can you recall the basis for your conclusion that it was 11 apocryphal? 12 A. Well, because we had no evidence that the Horizon system 13 at that stage was producing these errors, apart from the 14 fact that people said it was. 15 Q. At the time, did you consider the alternative 16 explanation that those saying that the Horizon system 17 was causing big losses might be right? 18 A. Yes, we certainly considered that and we asked about it. 19 But our instructions were that the system was robust. 20 Q. You go on, under "Discussion", to conclude that, "The 21 case could properly be charged as two counts of theft", 22 and noting that: 23 "The courts generally do not like theft and false 24 accounting charges to be charged in tandem for the same 25 course of conduct." 134 1 You cite there the Eden case. 2 A. Mm. 3 Q. This was a case in which a subpostmaster had denied 4 theft and false accounting in interview and had raised 5 the integrity of the Horizon system, blaming it for the 6 error in interview, correct? 7 A. I can't recall this, I haven't read Eden for 12 years. 8 Q. Well, just going over the paragraphs that we have, this 9 was something that had been raised in interview by the 10 subpostmasters? 11 A. Oh, absolutely. Yes, of course. 12 Q. There is no suggestion, on the face of this initial 13 advice, though I appreciate you may have had limited 14 information at an early stage, but there's no suggestion 15 here that there had been any investigation of whether 16 the Horizon system was working properly in Ms Wylie's 17 branch; would you agree with that -- 18 A. Yes, we're talking very early stages. This is 19 an initial advice. I think the advice is dated -- what, 20 October, is it -- and the audit was September. 21 Q. In October, yes, October 2012? 22 A. So we're at an extremely early stage of the case. 23 Q. Would you have expected the Investigator in the case to 24 look into whether the Horizon system was working 25 properly in Ms Wylie's branch? 135 1 A. I would have expected, as I said earlier in the advice, 2 that we would need to show that the system was working 3 properly. 4 Q. It isn't something that you advised should be done in 5 this advice. Can you recall whether there was any 6 discussion about whether there should be -- 7 A. I can't recall. 8 Q. It was a reasonable line of inquiry, wasn't it, that 9 should have been pursued, the issue having been raised 10 in interview, as a line of inquiry which might point 11 away from the guilt of the suspect; do you accept that? 12 A. Yes. 13 Q. Did you recognise that at the time? 14 A. Yes, I'm sure I did. 15 Q. What did you do to ensure that that investigation 16 happened? 17 A. Well, nothing because I wrote this advice. It then went 18 off to whichever of the CK solicitors who was 19 prosecuting the case did, and I don't think I saw much 20 more of it until Andy Cash asked me to do the second 21 Wylie advice. As I said, this wasn't my case. I was 22 asked to do the charging advice but I wasn't in charge, 23 I wasn't the case -- the file owner. 24 Q. You've already recognised that there is no reference to 25 the evidential or public interest tests for prosecution 136 1 in this initial advice. What prosecution test were you 2 applying when you concluded the case could be properly 3 charged as theft? 4 A. Well, I would have had those two tests in mind. As 5 I conceded, there should have been discussion of those 6 two factors in this advice. This advice, to that 7 extent, is sub par. 8 Q. Your advice in relation to statements which would need 9 to be sought, including you flagging up that "We will 10 need to improve the integrity of the Horizon system". 11 Who did you mean by "we"? 12 A. The prosecution. 13 Q. Did this include Cartwright King? 14 A. Yes. 15 Q. Was it your view that, if evidence of the integrity of 16 the Horizon system overall could be obtained, then this 17 would obviate the need for any specific line of inquiry 18 as to the operation of Horizon in Ms Wylie's branch? 19 A. No. 20 Q. Did you consider at the time of providing this initial 21 advice what the Post Office's disclosure obligations 22 were in the case, in respect of other cases in which 23 subpostmasters were raising Horizon integrity issues? 24 A. Not at this particular stage, no, because, as I said, 25 this is an extremely early advice. Statements hadn't 137 1 been got in and the initial bundle, I don't think, had 2 been prepared. So no. But, as I said, I wasn't running 3 the case and I wasn't responsible for the disclosure 4 schedules. 5 Q. As a general principle, at the time, would you have 6 understood that subpostmasters raising Horizon integrity 7 issues in other cases might be disclosable in this one? 8 A. They might be disclosable, yes. 9 Q. Would it depend on the particular circumstances of the 10 case as to whether they would be? 11 A. Well, it would depend on the defence raised in the 12 defence statement. Obviously, in those stages, at that 13 stage we were looking at, obviously, primary disclosure 14 which was matters which would undermine our case and, as 15 I understood it at the time, there hadn't been 16 a successful challenge of the Horizon system. We were 17 not told about any bugs at the time. 18 Q. Moving, please, to your advice in the Wylie case dated 19 11 July 2012. Could we have that on screen, please. 20 The reference is POL00180894. 21 Going first, please, to the bottom of the third 22 page, we can see there the date of the advice, 11 July 23 2012 and your name at the bottom. Going back to the 24 first page, please, you refer back to your initial 25 advice in the first paragraph and then you deal with the 138 1 more recent events at paragraph 2. You say this: 2 "The position of Post Office Limited has, up until 3 now, always been robust. When the system has been 4 challenged in the criminal courts the system has always 5 been successfully defended. I understand that the Post 6 Office has announced that it has appointed independent 7 forensic accountants, Second Sight Limited, to conduct 8 an independent review of 10 cases based on the Horizon 9 system. Whether this announcement was well considered 10 or not is not an area that I intend to address but the 11 bell cannot be unrung and there will be consequences 12 that will have to be dealt with." 13 Before we deal with the substance of this paragraph, 14 I'd like to explore, please, what prompted this 15 particular advice. Could we have on screen, please, 16 POL00141393. This is a letter dated 6 July 2012. It is 17 from Ms Wylie's defence solicitors to Cartwright King. 18 It reads: 19 "Our client has brought to our attention that the 20 Post Office Management have decided to allow forensic 21 accountants to examine Horizon. This decision appears 22 to have been made after our client appeared in the 23 Magistrates Courts for the first hearing. 24 "In view of the decision that has now been made, as 25 of course our client is maintaining she has not stolen 139 1 any money and that the fault is due to the Horizon 2 system, what is your position with regards to how this 3 matter is now to proceed. 4 "Clearly, we would submit that if the Post Office 5 are now looking at the possibility that there may be 6 an error in the Horizon system then this case should not 7 proceed further at this time. 8 "Perhaps you could advise us as to what stance is to 9 be taken to enable us to consider matters further with 10 regards to possible abuse of process etc arguments that 11 may be advanced on behalf of our client." 12 This letter pre-dates your advice by five days. 13 Were you advising in response to this letter? 14 A. I may have been. I didn't see the letter but Andy Cash 15 asked me to write the advice and he may have been 16 triggered by that letter. 17 Q. Could we have the advice back on screen, please. It's 18 POL00180894. Could we turn, please, to the third page 19 of this document, which is subparagraph 6(iii) and here 20 you say this: 21 "We should ascertain why we have decided to instruct 22 Second Sight Limited. I presume that it was not because 23 of any doubt that we had in our system. If so we should 24 be robust in stating that that is so. I presume our 25 thinking was that as we have nothing to hide we have no 140 1 objection to our practices being scrutinised in which 2 case we should say so." 3 Does it follow from this that, at the time of 4 providing this advice, you did not know the basis on 5 which Second Sight had been instructed to undertake its 6 investigation. 7 A. I didn't. 8 Q. Did you ask for any information about the basis on which 9 Second Sight was instructed from the Post Office before 10 providing the advice? 11 A. I didn't. 12 Q. Were you provided with any by anyone else? 13 A. No. 14 Q. In circumstances where you were providing this advice, 15 do you think you should have sought further information 16 as to the basis of Second Sight's instruction? 17 A. Oh, in the light of everything I now know, then yes, 18 certainly. 19 Q. We will come on to the detail of your advice in a moment 20 but, in general terms, you were advising, were you not, 21 on the approach the Post Office ought to take to ongoing 22 prosecutions which relied upon Horizon data; is that 23 fair? 24 A. Yes. 25 Q. In light of that, do you think that you should have 141 1 recognised at the time the need to seek more information 2 before providing this advice? 3 A. Well, the difficulty is this advice is, I think, almost 4 12 months before the Second Sight Interim Review, and 5 the forensic accountants of Second Sight, when they made 6 their interim review, they came out with the fact that 7 they could find no systemic fault in the Horizon system 8 and they came out with two bugs, and that was after 9 a year of speaking to subpostmasters, access to Fujitsu 10 and access to Post Office. I don't see that I would 11 have done very much better than they would have done. 12 Q. Going back, please, to the first page of the advice at 13 paragraph 2., who was it who told you that when the 14 system had been challenged in the criminal courts, the 15 system had always been successfully defended? 16 A. I don't know. I think it might have been Andy Cash. 17 Q. I'm sorry can you say -- 18 A. It might have been Andy Cash but I don't know. 19 Q. This is a point which you list at paragraph 36(x) of 20 your statement to the Inquiry in support of your 21 understanding at the time that the Horizon system was 22 robust. Did anyone tell you about the acquittal of 23 Maureen McKelvey by a jury in 2004, Mrs McKelvey having 24 raised Horizon issues in her case? 25 A. If they did, I can't remember it. 142 1 Q. Did anyone tell you about the acquittal of Suzanne 2 Palmer in 2007, having also raised Horizon issues? 3 A. Again, if they did, I can't remember it. 4 Q. Well, your understanding in both your statement and set 5 out here, seems quite clear, that the message to you was 6 the system had always been successfully defended? 7 A. Yes. 8 Q. It was not a criminal case but did anyone tell you about 9 the claim brought by the Post Office against Julie 10 Wolstenholme, which was settled in 2004 after a joint IT 11 expert provided an opinion to the effect that the 12 technology installed at the branch was clearly 13 defective? 14 A. No, I -- if they did, I can't remember it. 15 Q. Also at paragraph 36 of your statement, you say you were 16 told that there were never any alleged surplus figures 17 generated by the system? 18 A. Yes. 19 Q. Again, can you recall who told you that? 20 A. It would have been the Investigators or what I picked up 21 from the people who were doing the Post Office cases. 22 Q. Can you think of a single person who told you that? 23 A. I can't recall no but I can recall that that's what 24 I was told. 25 Q. Similarly at paragraph 36, you say that very few of 143 1 these problems were being reported in Crown post 2 offices. How did you know that very few such problems 3 were being reported? 4 A. Because, again, I was told that, I think, by 5 Investigators. 6 Q. Looking at the next line in your advice at paragraph 2, 7 where did you get the information that Post Office had 8 announced that Second Sight had been appointed to 9 conduct the review? 10 A. Andy Cash. 11 Q. The last sentence in this paragraph: 12 "Whether this announcement was well considered or 13 not is not an area that I intend to address but the bell 14 cannot be unrung and there will be consequences that 15 will have to be dealt with." 16 What was your view on whether the announcement was 17 well considered? It appears from this that you thought 18 it was not; is that fair? 19 A. I don't think that the announcement itself was a very 20 good -- I'm not saying that I didn't think that the 21 investigation wasn't a good idea, because obviously if 22 there are people saying that the system is false, those 23 particular doubts have to be chased but the actual 24 announcement of the Second Sight review led to various 25 difficulties, people wanting to adjourn their cases 144 1 until they had reported, et cetera. 2 I think, in fact, in the Wylie case, there was such 3 an application for the case to be adjourned until after 4 the Second Sight Report, which would have, as things 5 turned out, been over 12 months, hence ... 6 Q. Why would that have been a negative thing, people 7 seeking to adjourn, pending the outcome of 8 an investigation into the system they were blaming for 9 their losses? 10 A. Well, as far as that was concerned, it would have 11 created a log jam. The position of Post Office was very 12 strong: this system was robust. 13 Q. Was your reaction to the fact of Second Sight having 14 been instructed, the same as your reaction to the 15 announcement of it -- 16 A. No. 17 Q. -- as in, did you think that was negative? 18 A. No, if it were me, I wouldn't have done it. If I were 19 the people that -- in charge of Post Office, I would 20 have made absolutely certain through Fujitsu that the 21 system was robust. I would have done an internal 22 inquiry and made sure that Fujitsu could guarantee that 23 there were no bugs that could cause what the 24 Subpostmasters for Justice complaining about. 25 Q. Going on, please, to the next paragraph in your advice, 145 1 that is paragraph 3, you say here: 2 "The first consequence is that we have now given 3 ammunition to those attempting to discredit the Horizon 4 system. The argument will be that there is no smoke 5 without fire and we would not have needed to audit 6 a bomb proof system. We can expect this to go viral in 7 that any competent defence solicitor advising in a case 8 such as this will raise the integrity of the Horizon 9 system and put us to proof as to its integrity. As all 10 of our cases depend on the system to compute the alleged 11 losses this is likely to affect a considerable 12 percentage of our cases." 13 You say in your statement to the Inquiry that you 14 have read the judgment of the Court of Appeal in 15 Hamilton v Others; is that right? 16 A. I have. 17 Q. At paragraph 137 of that judgment, and I don't intend to 18 take you to it, I hope you'll take it from me -- 19 A. I'll take your word. 20 Q. -- there is a criticism that, by representing Horizon as 21 reliable and refusing to countenance any suggestion to 22 the contrary, the Post Office was effectively seeking to 23 reverse the burden of proof, treating what was not more 24 than a shortfall shown by an unreliable system as an 25 incontrovertible loss, proceeding as if it were for the 146 1 accused to prove that no such loss had occurred. 2 Is your concern here evidence of that approach, the 3 reversing of the burden of proof? 4 A. I don't think so. 5 Q. Does it suggest that you didn't think it would do for 6 the Post Office to have to evidence the reliability of 7 the data provided to the court in support of its 8 prosecutions? 9 A. No, I suggested at this time that we needed an expert in 10 order to demonstrate the reliability of the system. 11 Q. This last line of paragraph 3, where you highlight that 12 "All of our cases depend on the system to compute the 13 alleged losses", was this not a reason for you, as 14 a barrister advising on Post Office prosecutions, to be 15 concerned about the potential implications for those who 16 had and were being prosecuted by the Post Office? 17 A. Well, of course, it's a concern that the system is 18 challenged but there were, at that time, no successful 19 challenges to it. Now, at that time, I hadn't seen and 20 I hadn't reviewed other cases, but, later on, obviously, 21 I did get to review cases where there were experts who 22 gave -- or who provided statements for the defence and, 23 you know, we did not actually have any positive evidence 24 of the system not being robust until the Second Sight 25 presented their Interim Review 12 months later, and that 147 1 said that they found nothing systemic with the system. 2 So even then, when we stopped the prosecutions, it 3 wasn't because we thought that the Horizon system was 4 not robust; it's because we thought we had problems with 5 our expert. 6 Q. At this point in time, all you knew was that Second 7 Sight had been instructed -- 8 A. Precisely. 9 Q. -- without any information about the basis for that 10 instruction -- 11 A. Precisely. 12 Q. -- and you didn't know what the outcome of the 13 investigation was going to be, did you? 14 A. No, of course not. 15 Q. So did you think, well, if the outcome of this 16 investigation is that there's a problem with the system, 17 a considerable percentage of prosecutions might have 18 proceeded and might continue to proceed on the basis of 19 unreliable evidence? 20 A. Well, that didn't concern me at the time because we were 21 going to -- my advice was we were going to get an expert 22 who was going to attest as to the reliability of the 23 system. 24 Q. You go on at paragraph 4 to say this: 25 "The extra evidence which we will be obliged to 148 1 gather will be as nothing in comparison to the potential 2 disclosure problems that we may face. Until the Second 3 Sight investigation is concluded we will be in a limbo." 4 One reading of this is that you considered the 5 Second Sight investigation to be problematic because it 6 might give rise to potential issues in relation to 7 disclosable material. Is that the case? 8 A. Well, yeah, to an extent, yes, because obviously as far 9 as Second Sight was concerned, it might raise stuff that 10 was disclosable. But I don't think that I thought that 11 it was going to produce material that was going to be of 12 any relevance to the defence in the future because we 13 were told in terms that the system was robust and what 14 we needed to do was get an expert in to demonstrate that 15 it was. 16 Now, obviously, if Second Sight came back and they 17 discovered faults, that was going to create problems in 18 the future. But that's not what happened. 19 Q. From the perspective of a prosecutor, is this approach 20 not the wrong way round? In other words, if there was 21 a possibility that an investigation might produce 22 material capable of assisting the defence, or 23 undermining the prosecution, then that was a reason to 24 investigate, not a problem. 25 A. I can see what you're saying. But, as far as I was 149 1 concerned, if we got an expert who was actually able to 2 attest to the robustness of the system, and the 3 expectation was that Second Sight wasn't going to find 4 anything. 5 Q. You go on in paragraph 4 to say this: 6 "It is essential that this enquiry is completed as 7 soon as possible and that we can live by its findings. 8 We will have to find out when this enquiry will report 9 in order that we can choose our strategy. If it is 10 a matter of weeks then cases can be put over until after 11 it reports. If we are talking months then the courts 12 will not wear such delays." 13 Might it not have been the case that a judge 14 presented with a well-made application supported by 15 evidence would have seen it as important to adjourn or 16 stay proceedings pending the outcome of the 17 investigation? 18 A. Well, that's certainly one point of view. It was 19 plainly not my view at the time. 20 SIR WYN WILLIAMS: Mr Bowyer, can I ask you, you're 21 impliedly, if not expressly, critical of the Post Office 22 decision to announce the Second Sight review but, in 23 case X, shall we say, which comes to light, shall we 24 say, two weeks after Second Sight has been instructed 25 and one of the first things that the prosecuting team 150 1 sees is that the postmaster in interview under caution 2 has blamed Horizon, would the fact of the investigation 3 then have become disclosable? 4 A. I'm sorry, sir, I don't think I understand the question. 5 SIR WYN WILLIAMS: Let me try again. We've got a case which 6 comes to light shortly after Second Sight has been 7 instructed -- 8 A. Indeed. 9 SIR WYN WILLIAMS: -- to investigate -- and I'm putting this 10 loosely -- the reliability of Horizon within the terms 11 of reference of the Inquiry, all right? 12 A. Yes, certainly. 13 SIR WYN WILLIAMS: We then have a case in which there is 14 an apparent shortfall, as demonstrated by data from 15 Horizon, and when the subpostmaster is confronted with 16 that, in interview under caution, says, "Well, I can't 17 explain it. It can only be due, however, to some fault 18 in Horizon". Now, either, as part of primary 19 disclosure, but probably more specifically as part of 20 secondary disclosure, would not the fact of the Second 21 Sight review become disclosable? 22 A. I'm not entirely sure it would. 23 SIR WYN WILLIAMS: All right. I want your view about this, 24 if I may. 25 A. Because the whole point of the Second Sight Report being 151 1 commissioned doesn't actually support a defence that 2 Horizon doesn't work because, if the Second Sight Report 3 comes back and it says the system is robust, that 4 doesn't support the defence. The fact that someone's 5 investigating it is a worry, in that it does back up, as 6 I say in the advice, there's a no smoke without fire 7 argument. But there is no support for a defence by the 8 fact that someone is investigating. 9 SIR WYN WILLIAMS: Remind me, is the test for disclosure 10 that it does undermine the prosecution or support the 11 defence, or that it may? 12 A. I think it's "may". 13 SIR WYN WILLIAMS: Right. So, on any view, surely, if it's 14 "may", then it would be a disclosable document? Oh, 15 sorry, not disclosable -- 16 A. Disclosable fact -- 17 SIR WYN WILLIAMS: Yes. 18 A. But the fact the Post Office have made the announcement 19 meant it was in the public domain anyway. 20 SIR WYN WILLIAMS: But that's what was intriguing me, that 21 you appeared to be critical of an announcement which was 22 in effect in inevitable since, once there was a case, it 23 would have to be disclosed. 24 A. You may be right. 25 SIR WYN WILLIAMS: Thank you. 152 1 MS PRICE: You were in this advice advising on what the Post 2 Office should do in relation to prosecutions going 3 forward, relevant prosecutions. Would you accept that 4 the question which mattered at this point was whether it 5 was possible or fair to continue to prosecute whilst the 6 Second Sight investigation was ongoing? 7 A. Well, at the time, I thought it was. 8 Q. I'm sorry, can you clarify your answer on that? You 9 thought it was what? 10 A. I thought it was fair to prosecute if we got 11 an expert demonstrating that the system was robust. 12 Q. There's no express consideration in this advice, is 13 there, of whether or not it was possible or fair to 14 continue with prosecutions? 15 A. No, there wasn't. 16 Q. Was there any assessment of that question in your mind 17 at all, or was it a foregone conclusion that 18 prosecutions could and should continue? 19 A. My view at the time was that they could continue. 20 Q. At paragraph 5 of your advice, you say this: 21 "I assume that we still contend that the system is 22 foolproof in which case we should defend it 23 aggressively. I understand that the manufacturers have 24 not been helpful up until now." 25 Had someone told you, before you drafted this 153 1 advice, that the system was foolproof? 2 A. That was the impression that I got, yes. 3 Q. Those are quite strong words, "foolproof". Had someone 4 else used those words in describing this to you? 5 A. I can't recall where I got it from. 6 Q. "Foolproof" is very absolute and you're making 7 an assumption here that that was the Post Office's 8 position. Given the Post Office decision to instruct 9 Second Sight to carry out an investigation into the 10 system, was it a safe assumption to make about such 11 an unequivocal position like this? 12 A. Well, with hindsight, no, it wasn't. But, at the time, 13 it's -- I thought it was. 14 Q. You comment in this paragraph in relation to your 15 understanding about the manufacturers not having been 16 helpful up until now, and would not provide expert 17 evidence without large fees being sought. Where did 18 that understanding come from? 19 A. I think that came from Andy Cash. 20 Q. You go on: 21 "This will not do. If the integrity of the system 22 is compromised then the consequences will be 23 catastrophic for all of us including them. The 24 financial consequences of convictions and confiscation 25 orders being overturned and confidence in the Post 154 1 Office bookkeeping being restored for future 2 prosecutions will be astronomical." 3 Did you understand, at the time, that, if the system 4 was compromised then, as a prosecutor, the overriding 5 concern should be the impact that this might have on the 6 fairness of past and present prosecutions? 7 A. Yes. 8 Q. Is it fair to say that this advice does not read as 9 though that was your overriding concern? 10 A. As an exercise in reading the future, it actually looks 11 fairly good. Yeah, if the system was compromised, the 12 consequences would be catastrophic, and that's what's 13 happened. 14 Q. Well, the last sentence here you say: 15 "They should be made to understand that this is 16 a firefighting situation and it is not just our house 17 that would be burned down if the system were 18 compromised." 19 Was it your view that Post Office prosecutions were 20 facing an existential threat? 21 A. If the system turned out to be compromised, then yes, it 22 would have been disastrous for them. In fact it has 23 proved to be disastrous. That's why we're here today. 24 Q. Did "our house" include Cartwright King? 25 A. No, it was Post Office. As far as Cartwright King was 155 1 concerned, we were acting on instructions. 2 Q. You set out a number of steps which should be taken at 3 paragraph 6 of your advice, and we'll come to those in 4 a moment. What we do not see here is an identification 5 of the need for a reasoned and rational basis for 6 continuing to prosecute cases using Horizon evidence 7 when an investigation into the system was ongoing; is 8 that fair? 9 A. That is fair. 10 Q. Would you accept, looking at it now, that that is what 11 was called for in these circumstances? 12 A. Certainly, with hindsight. 13 Q. Was that something you should have recognised at the 14 time? 15 A. Yes, I -- as far as that was concerned, if I had my life 16 all over again, I think the advice would be slightly 17 different. 18 SIR WYN WILLIAMS: Ms Price, we need to take a break, so 19 just choose a moment shortly, all right? 20 MS PRICE: Yes, sir. 21 That is an appropriate moment for the break, sir, if 22 that's convenient. If we can have 15 minutes, and 23 I make it just past 3.10, so 3.25? 24 SIR WYN WILLIAMS: Yes, certainly. 25 MS PRICE: Thank you, sir. 156 1 (3.11 pm) 2 (A short break) 3 (3.25 pm) 4 MS PRICE: Hello, sir, can you still see and hear us okay? 5 SIR WYN WILLIAMS: Yes, I can. 6 MS PRICE: Mr Bowyer, turning, please, to what you did 7 advise in terms of approach and paragraph 6(i), so if we 8 could have that document back up on screen, please. 9 It's POL00180894. There me are. 6(i), if we can go to 10 page 3, please. Starting -- there we are. You say: 11 "In my view we should attend to the following: 12 "We should identify the contested cases, civil and 13 criminal, in which the Horizon system has been 14 challenged. We should identify the areas of challenge 15 and how we neutralised them. Any expert reports should 16 be retained for evaluation. An expert should be 17 identified and instructed to prepare a generic statement 18 which confirms the integrity of the system and why the 19 attacks so far have been unfounded. This expert should 20 be deployed in all cases where the Horizon system is 21 challenged and he should be prepared to be called to 22 reply to defence experts on a case-by-case basis." 23 To what extent was your advice here, to obtain 24 a generic statement, influenced by your understanding in 25 relation to how helpful the manufacturers had been in 157 1 the past when it came to providing expert evidence, if 2 at all? 3 A. I don't think it was influenced by that at all. The 4 idea was that an expert should prepare a statement where 5 the guts of it would be what has actually occurred in 6 the past and what challenges have been made and that 7 they could comment on the particulars of the particular 8 case that he was being served in. 9 Q. Having had the opportunity to refresh your memory by 10 reference to some of the correspondence which followed 11 this advice, is it right that your advice led to the 12 production of a generic statement in Gareth Jenkins' 13 name? 14 A. It did. I wasn't happy with Gareth Jenkins because 15 I didn't think he was independent but I was -- 16 Q. We'll come on to that shortly. I think you've seen 17 a transcript of the evidence given by Duncan Atkinson, 18 King's Counsel, on 18 December last year -- 19 A. I have. 20 Q. -- is that right? He was asked a number of questions 21 about your advice on expert evidence in the Wylie case 22 and more broadly. I don't intend to take you to the 23 transcript but, if, at any point, you'd like me to, 24 please do say and we'll look to it but I'd like to just 25 run through some of the conclusions Duncan Atkinson 158 1 reached. First of all, would you accept that what was 2 in fact needed was case-specific expert evidence, rather 3 than a generic statement, even where the expert was 4 prepared to be called to reply to defence experts on 5 a case-by-case basis? 6 A. Well, the expert report should always be relevant to the 7 case in point but certain parts of it, rather like 8 a drug statement, will remain the same. So, if you are 9 giving -- having an expert who is actually commenting on 10 why the system is robust, what the attacks were made on 11 it in the past were and why they didn't actually have 12 consequence, then that could be deployed in each case 13 with reference to what happened in this particular case 14 because we had all sorts of different cases alleged. 15 There were people who were alleged to be taking it out 16 of the till, there were people who were alleged to be 17 putting in PIN numbers; there were people who were 18 alleged to be crossfiring Postal Orders and so each case 19 would be different, and the allegation as to why Horizon 20 was not working would be different in each case, and 21 that, as far as I saw it, was the way it would work. 22 So the guts of the thing would be there, why it's 23 robust, the attacks on the past but he would refer to 24 the case itself, otherwise it would be fairly useless in 25 court. 159 1 Q. Looking at the way that you have worded paragraph 6(i), 2 which we have just been through, would you accept that 3 this advice was seeking to protect the system rather 4 than to assess the reliability of fundamental evidence 5 in the prosecution of subpostmasters? 6 A. No. I don't accept that. The advice was to say that 7 the system was robust and respond to it. There's no 8 protecting involved. If the system has got faults, they 9 should be disclosed. The whole point was to actually 10 put forward the attacks that had been made on it and 11 this would be an expert who could actually say the 12 system was robust and it was also a windmill for the 13 defence experts to tilt at if they were able to actually 14 come up and the previous attacks on it would be helpful 15 to the defence in that respect. 16 Q. Was the purpose of advising that a generic statement for 17 use in all Horizon cases should be obtained to obviate 18 the need to investigate, as a reasonable line of 19 inquiry, whether problems with the Horizon system might 20 have created a loss, an illusory loss, in the branch of 21 a specific suspect? 22 A. Well, no because such a statement wouldn't, in fact, 23 work in that way. If you were prosecuting a case, you 24 would need to know. If I was prosecution counsel in 25 an individual case, I would need to know why the defence 160 1 suggestions weren't actually right and, so, therefore, 2 they would need to be investigated by the expert on 3 a case-by-case basis. I wasn't suggesting having a case 4 to serve blanket in each case, because trial counsel 5 wouldn't have wanted that. They'd have said, "Well, 6 that's all very well in the past but, in this particular 7 case, they're alleging that this has happened, what 8 about it?" 9 Q. Was the purpose of advising that this statement be 10 obtained to obviate the need to identify material 11 capable of undermining the truth case or, if it was in 12 the Post Office's possession, might undermine the 13 prosecution case, in any specific case? 14 A. No. The point of it was to actually address the system 15 as to why it was safe and, as far as the defence were 16 concerned, give their expert something to actually get 17 into and give them an expert that they could deal with. 18 Q. Looking, please, to paragraph 7 at the bottom of this 19 page, you conclude: 20 "I can appreciate that the above might be expensive 21 but it will be as nothing should the integrity of the 22 Horizon system be compromised." 23 Taking a step back and looking at your advice as 24 a whole, do you accept that there was too much focus in 25 this on the potential fallout for the Post Office, 161 1 Fujitsu and Cartwright King, if the integrity of the 2 system was found to be compromised, and insufficient 3 consideration of the implications for the people who had 4 been and continue to be prosecuted on the basis of 5 Horizon data? 6 A. No. What I was intending to do was actually create 7 a situation whereby these cases could be prosecuted 8 fairly, with proper disclosure to the defence. Our 9 instructions at the time was that this system was robust 10 and, as far as that was concerned, it would have been 11 a pity if we didn't actually defend the system properly 12 because, if a breach in the robustness of Horizon seemed 13 to have been created, as far as that was concerned, that 14 would have been disastrous and so what we wanted to do 15 was demonstrate that it was robust, and there was no 16 covering this up. You know, as far as disclosure is 17 concerned, we have always advised disclosure. 18 Q. Could we have on screen, please, POL00143377. Starting, 19 please, towards the bottom of this page. Little further 20 down, please. 21 This is the email from Andy Cash sending your advice 22 to Jarnail Singh on 11 July 2012. He says he encloses 23 advice from Harry Bowyer: 24 "I know it will be unpalatable, but for what it may 25 be worth I share his view. In the instant case, our 162 1 response must be dependent on timescales for completion 2 of the inspection. We are only just beginning to see 3 these issues raised by defence solicitors and the sooner 4 we grasp the problem the better. If you want any more 5 do call, otherwise I will await the outcome of your 6 consultations before responding to the defence." 7 Then, going further up, please. We can see the 8 email above that in the chain, the email from Jarnail 9 Singh to Andy Cash, copied to Susan Crichton and 10 Mr Flemington, dated 16 July 2012. Mr Singh says this: 11 "Andy. 12 "Thank you. 13 "I agree defence will approach to stay the 14 prosecution until the review by Second Sight is 15 completed will become increasingly common. Post Office 16 view is that such an approach be resisted. Review to be 17 conducted is limited in scope in few and isolated cases. 18 Second Sight would work with a number of MPs (two at 19 present) to review cases that have been raised by their 20 constituents. Second Sight's appointment is presently 21 being agreed with the MPs and Justice for 22 Subpostmasters. There is no legal or forensic grounds 23 to argue defendants will not get fair trial or abuse of 24 process. There is no reason to justify the case being 25 stayed. The fact that the review is being carried out 163 1 is not an acknowledgement that there is an issue with 2 Horizon. The system working properly and is being used 3 up and down the country. When the system has been 4 challenged in criminal courts has been successfully 5 defended. There is no mileage in this position but is 6 in fact superficial." 7 This was a clear view being expressed by Mr Singh 8 that the Post Office would not agree to stay relevant 9 prosecutions; would you agree? 10 A. Yes. 11 Q. Going up to the top of the page we can see you were 12 copied in to Mr Cash's response, and Mr Cash says: 13 "Thanks for this. Do we take it that we 'resist' 14 defence requests in the terms of your email? I would 15 like formal confirmation bearing in mind the view taken 16 by counsel. If further consultation with Harry or 17 otherwise would assist please let me know. I will need 18 to reply to Kim Wylie's solicitors this week." 19 Did you understand these to be your instructions: 20 that you should resist requests for a stay from the 21 defence. 22 A. Well, as I say, I wasn't instructed in any of these 23 cases. 24 Q. Did you understand that to be Cartwright King's 25 instructions from this email? 164 1 A. It seems fairly clear, yes. 2 Q. In respect of Mr Singh's comments on your advice more 3 generally, you say in your statement at paragraph 50 4 that you thought Mr Singh was somewhat over-optimistic 5 as to the limited affect of commissioning the Second 6 Sight review. Can you explain, please, why you say 7 that? 8 A. Well, he thought that the Second Sight review was going 9 to be limited. I didn't. 10 Q. Did you consider at the time that Mr Singh was 11 minimising the significance of Second Sight's 12 instruction? 13 A. I don't think I gave it that amount of thought but, 14 actually, if I had addressed it, yes, I suspect that 15 would have been my view. 16 Q. At that time, did you have any reason to think that 17 Mr Singh was not being fully frank with you about 18 whether there was an issue with the Horizon system? 19 A. At that stage, no. I had no reason to believe it. 20 Q. You say in your statement that you were told by Andy 21 Cash that the Post Office did not like your advice and 22 that you were not asked to advise formally on the issue 23 after that. What were you told about the reason why the 24 Post Office did not like your advice? 25 A. Andy Cash -- it's a throwaway comment from Andy Cash 165 1 that they'd seen my advice and didn't like it. 2 Q. I'd like to turn, please, to the generic Gareth Jenkins 3 statement, which was produced following the July 2012 4 advice. Could we have on screen, please, POL00141416. 5 This top email is from you to Jarnail Singh, copied to 6 Andy Cash and entitled "Horizon integrity project". So 7 scrolling down a little. We don't see the sender at the 8 top but we do see "Harry" at the bottom there. 9 It is responding to the email below from Jarnail 10 Singh, dated 6 August 2012. Can we scroll down to that. 11 Thank you. His email is to you, copied to 12 Mr Flemington. He says this: 13 "Harry -- it was good to chat with you. I confirm 14 that Helen Rose has been given the task to gather the 15 data. Please find her email and spreadsheet. It would 16 be useful at this stage if you could look at what 17 information Helen has provided and advice accordingly in 18 readiness to instruct an expert as part of providing 19 an advance pack disclosure." 20 Below that is an email from Helen Rose explaining 21 where her work pulling together information relating to 22 cases in which Horizon issues had been raised. Going 23 back up, please, to the top of the first page, to your 24 email, and you say: 25 "This appears to be what we want. 166 1 "Hopefully Helen will confirm that the Horizon 2 system has never been successfully challenged. I have 3 yet to see any signs of experts briefed on behalf of the 4 defence. 5 "When she has completed her exercise she should 6 prepare a summary of those cases where there is a proper 7 attack on the system rather than a gripe that the system 8 is at fault (although she should record these cases so 9 that we can say that they have been kept under review -- 10 they will become more numerous as the bandwagon picks up 11 speed). 12 "The expert will need to address the report to the 13 followed issues ..." 14 You set out four points: 15 "A description of the Horizon system (in layman's 16 terms so that a jury can understand what it is and what 17 it does) 18 "[Second] A declaration that it has yet to be 19 attacked successfully. 20 "[Third] A summary of the basic attacks made on the 21 system concentrating on any expert reports served in 22 past cases. If there are none then state that no expert 23 has yet been found by any defence team civil or criminal 24 to attack the system (at the moment there seems to be 25 little more than griping by the defendants that the 167 1 system must be at fault without saying how)." 2 Further: 3 "Plainly, like all accounting systems, there is room 4 for human error (keying in the wrong amounts etc) but 5 the expert should be able to state that innocent human 6 error is unlikely to produce the types of discrepancies 7 of many thousands of pounds over many months. 8 "A decent report along these lines will go a long 9 way to putting this issue to bed." 10 Can you help with why you considered the factual 11 position on whether there had been an effective legal 12 challenge to the Horizon system was a matter for expert 13 IT opinion? 14 A. Well, I don't think I meant legal decision. I meant had 15 there been an attack made by an expert on the system? 16 Had there been any faults found? Had there been any 17 faults suggested? 18 Q. Helen Rose was putting together a spreadsheet of cases 19 based upon Post Office records, wasn't she? 20 A. Yes. 21 Q. Can you help with why someone from the Post Office was 22 not identified to give evidence about these previous 23 cases or produce records of them? 24 A. Well, I assumed that the database that was put together 25 would be something that would appear on the disclosure 168 1 schedule and would be useful for a defence expert to 2 look at. 3 Q. Looking at the four issues you advised that the generic 4 priorities should address, did you consider that these 5 issues were sufficient to form the basis of a generic 6 report on Horizon integrity? 7 A. Well, I'm not a computer expert so, at this particular 8 stage, I hadn't heard of any bugs in Horizon and so what 9 I wanted to do was actually take everything that there 10 was that was critical of Horizon, because there was 11 nothing from the Post Office side and so the best angle 12 I thought was the attacks that had been made in previous 13 cases, because they would actually give the best in if 14 there were any faults to be found with it. 15 Q. These four issues do not actually address the 16 fundamental question of whether a problem with the 17 system could cause illusory shortfalls in branch, do 18 they? 19 A. No, they don't. 20 Q. Quite apart from the issue of whether a generic, as 21 opposed to case-specific, approach was what was 22 required, wasn't that the question at the heart of 23 things? 24 A. You may well be right. Obviously, I'm not a computer 25 expert and so I went about it the way that I thought the 169 1 system, you know, could be best explained and best 2 presented for the defence. Again, if I was able to 3 write the advice from this email all over again, I may 4 well have approached it differently. But, at the time, 5 I didn't know. 6 Q. Towards the -- 7 A. You can see it from the Jarnail Singh email, where he 8 says it's robust. That's the information we got 9 constantly at this time: that the system was fine apart 10 from human error and manual entry mistakes. 11 Q. Could we have on screen, please, POL00020489. Towards 12 the bottom of the first page, please, is an email from 13 Andy Cash to Jarnail Singh, copied to you, among others, 14 and dated 12 September 2012, and he says this: 15 "Harry advises that the report, provided it is 16 comprehensive, is what is needed and we now need the 17 experts report on it as soon as practicable in view of 18 the current cases timetables." 19 The email replying to this is above and from Jarnail 20 Singh. He says: 21 "Andy 22 "Thinking about a choice of expert in this case. 23 I have in the past instructed Gareth Jenkins of Fujitsu 24 in the case of Misra which [identical] was the only 25 challenge on Horizon, he provided expertise in dealing 170 1 with defence boundless enquiry into the whole Horizon 2 system. Perhaps we need to reconsider whether to 3 instruct him as he may be viewed too close to the system 4 but instruct somebody entirely independent? Your 5 thoughts please and also whether you or Harry have 6 anybody in mind." 7 Then you reply to this in the top email on the page, 8 saying: 9 "I would have preferred someone entirely independent 10 but this is such a specialist area that we would be hard 11 pushed to get a report in the timescale that we 12 require -- we might open our expert up to allegations of 13 partiality but his expertise will be unlikely to be 14 challenged. 15 "We need to get this report off the skids as soon as 16 possible as we have PCMHs and trials galloping up on 17 us." 18 Was the urgency of the expert report being driven by 19 the court timetabling in the case of Wylie and the other 20 cases due to become -- 21 A. It was a factor, certainly. 22 Q. In this email, you express a preference for someone 23 entirely independent and you explain at paragraph 55 of 24 your statement that this was because the potential for 25 allegations of bias or actual conflicts of interest, as, 171 1 in the event, were plainly relevant, were obvious. 2 Can we take it from this that you were alive to the 3 fact that Mr Jenkins was not a functionally independent 4 witness? 5 A. Yes. 6 Q. Was consideration given at this stage to applying to 7 adjourn these cases to enable time to find 8 an appropriate expert, other than Mr Jenkins? 9 A. I don't think so, no. 10 Q. Do you think consideration should have been given to 11 that? 12 A. With hindsight, certainly. 13 Q. You say at paragraph 56 of your statement to the Inquiry 14 that you were made firmly aware that finding another 15 expert was impracticable. Who was it who made you 16 firmly aware of this? 17 A. I was made aware by Post Office, and it was such proved 18 to be the case, when we actually tried to find another 19 expert after Mr Jenkins developed his problems and so 20 actually trying to find experts, I think Martin Smith 21 and Simon Clarke approached quite a number of people to 22 try to get a report done on this case and Post Office 23 weren't helpful during that time, and actually finding 24 someone with the expertise to be able to give a report 25 on the Horizon system was very difficult indeed. But we 172 1 certainly were not going to be able to do it in any 2 short period of time because, obviously, you know, they 3 had to be told what was wanted. They had to give their 4 estimate as to what it was going to cost in order to 5 provide such a report, et cetera. 6 Q. Would you agree that Mr Jenkins' lack of functional 7 independence made it all the more important to ensure 8 that he was aware of and understood the nature of expert 9 duties? 10 A. Yes. 11 Q. Could we have on screen, please, POL00096997. Towards 12 the bottom of this page is the start of an email from 13 you to Martin Smith, dated 2 October 2012 and entitled, 14 as the chain of emails is, "Horizon Fujitsu report very 15 urgent". You are responding to an email from Martin 16 Smith which was forwarding on to you a report prepared 17 by Mr Jenkins in draft. Going to page 4 of this 18 document, please, we can see an email further down in 19 the chain which was forwarded to you, an email from 20 Jarnail Singh, there we are, dated 1 October 2012, which 21 was sent to Gareth Jenkins and copied to Penny Thomas, 22 Hugh Flemington and Martin Smith. 23 We see there an introductory paragraph and, about 24 halfway down: 25 "You will need to consider the Disclosure Officer's 173 1 document/spreadsheet (see attachments) [that's the Helen 2 Rose spreadsheet] and need to address in your report the 3 following issues ..." 4 We see there -- I won't read them out again -- what 5 looks like a copy and paste of the four points from your 6 earlier correspondence. These instructions were 7 contained in an email chain which was forwarded on to 8 you when you considered Mr Jenkins' draft. They are, in 9 effect, the instructions to Mr Jenkins. Did you 10 consider these instructions sufficient for the 11 instruction of a prosecution expert at the time? 12 A. Well, at the time I plainly did, yes. 13 Q. Do you consider them sufficient, looking at them now? 14 A. No, I -- if I went back, knowing what I know now, then 15 obviously I would -- I'd have done different. 16 Q. Going back up to your email of 2 October, please, that's 17 the bottom of page 1, going over to the top of the next 18 page. So having been sent the draft report, you say: 19 "At first sight this/these took good, look like 20 a good base upon which our reports can be based (as most 21 are fishing expeditions they will do in the current 22 form)." 23 You say: 24 "I have edited the last report (last paragraph) 25 because as it currently stands it is an invitation for 174 1 requests for further disclosure (see attachment). Can 2 you put this past Mr Jenkins." 3 So dealing first, then, with the amendment you made 4 to the draft, could we have the amended draft on screen. 5 It's POL00058369. This the draft generic Horizon 6 integrity report, which had been sent by Mr Jenkins, and 7 this version shows the amendment that you had made 8 referred into your email. If we can go to page 9 of the 9 report, please. This is section 3 entitled "Horizon 10 Integrity". Casting your eye down the page to see 11 what's been taken out, we see a large chunk which has 12 been deleted. Just scrolling further down, please, and 13 over to the top of the next page, the change that you 14 had made was to delete the reference to the Helen Rose 15 spreadsheet and the summary of the specific cases which 16 Mr Jenkins had taken from that spreadsheet as well as 17 any reference made by Mr Jenkins to specific cases. 18 Would you agree with that as a characterisation of the 19 amendment? 20 A. Yes. 21 Q. Can you explain why that amendment was made? 22 A. Because this is the -- effectively, the basis of any 23 statement made in a case and, as far as those matters 24 are concerned, if you go back to the previous page at 25 the top of it, there is an awful lot there that would 175 1 have to be changed every time. So "HR Spread", this is 2 a spreadsheet prepared by Helen Rose summarising 25 3 cases. As we went on, that number would have to change. 4 It lists the number of cases that he didn't have 5 anything to do with and, as far as this is concerned, it 6 lists the cases that he did have something to do with 7 but there's nothing there that undermines the 8 prosecution case in this. All of this would be 9 disclosable but would be stuff for a disclosure 10 schedule, not for the statement itself. 11 That's why I removed it because all that would 12 happen is we would be asked for vast quantities of 13 paperwork in every case relating to these cases. 14 Now, if they, actually -- as I said, none of it is 15 primary disclosure but later it would be secondary 16 disclosure and, in due course, they could get that from 17 the disclosure schedule. 18 Q. At the time, did you consider that it was appropriate 19 for you to amend the expert's draft report? 20 A. Yes, I was asked to look at it. It would be absurd if 21 someone couldn't put papers in front of their lawyers to 22 say "Is this right?" and the amendments that I made, 23 I then asked Martin Smith to put in front of Mr Jenkins 24 to see if he approved. The actual flavour of the thing 25 is exactly the same. It says what Mr Jenkins says but 176 1 it doesn't provide vast quantities of names of other 2 defendants which, again, whether that's proper to put in 3 a statement at this stage. 4 Q. Did you ensure that the original unamended draft was 5 recorded on the unused schedule in the case of Wylie or 6 any other case in which it was disclosed? 7 A. No, because I wasn't actually litigating that case. 8 Q. Can you help with whether Helen Rose's spreadsheet was 9 treated as unused material, potentially disclosable in 10 other cases? 11 A. I never saw the disclosure sheets. 12 Q. Looking, please, to the last page of the draft report 13 again. There's no expert's declaration on this draft 14 report, is there? 15 A. Not that I've seen. 16 Q. I think you've had a chance to review the document in 17 its entirely ahead of today? 18 A. Yes. 19 Q. Would you agree that it does not set out the substance 20 of Mr Jenkins' instructions? 21 A. Yes. 22 Q. That can come down now. Thank you. 23 In your email to Martin Smith of 2 October 2012, you 24 asked that he draft generic section 9 statements for 25 Mr Jenkins to produce the reports. Why was it that you 177 1 considered that was the format that these should be put 2 into, rather than a form of an expert report? 3 A. I don't know. It's what I decided at the time. 4 Q. Did you at the time advise Mr Singh or anyone else at 5 Cartwright King that the report or statement needed to 6 set out the requirements for expert evidence in criminal 7 proceedings, as required under the common law and the 8 Criminal Procedure Rules? 9 A. I don't know. I hope I would have done but I don't 10 know. 11 Q. It may follow, were you aware at the time of the need 12 for an expert to include a statement to the effect that 13 the expert has complied with his or her duty to the 14 court to provide independent assistance by way of 15 objective, unbiased opinion in relation to matters 16 within his or her expertise and an acknowledgement that 17 the expert will inform all parties and, where 18 appropriate, the court, in the event that his or her 19 opinion changes on any material issues? 20 A. I'm sorry, I don't understand the question. 21 Q. I'm asking if you were aware that the wording I've just 22 read out was a mandatory requirement for inclusion? 23 A. Yes. Yes, I was. 24 Q. Can you help with why you didn't flag up, certainly on 25 the email that we've just seen, the requirements for 178 1 expert evidence? 2 A. I don't know. It was a work in progress. 3 Q. At this point or at any other point, did you take any 4 steps to ensure that Mr Jenkins had been properly 5 instructed as an expert -- 6 A. No. 7 Q. -- and made aware of his duties as an expert? 8 A. No. 9 Q. Can you help with why? Was it that this was someone 10 else's responsibility, or? 11 A. I wasn't, as I said, litigating in the case and I wasn't 12 counsel instructed. But a counsel instructed in the 13 case would, I hope, have spotted if the expert's report 14 didn't have an expert's declaration on it. 15 Q. Can we have on screen, please, POL00097216. This is 16 an email chain from November 2012 containing emails from 17 Rachael Panter, Gareth Jenkins, Andy Cash, Jarnail Singh 18 and some others. Looking, first, please, at page 3. 19 This is an email from Mr Jenkins, dated 27 November 20 2012. In the third paragraph -- this is to Rachael 21 Panter, you are not in the copy list of this at this 22 stage -- Mr Jenkins says: 23 "Reading through the defence statement I see it does 24 make some specific points which my statement doesn't 25 currently address, specifically the challenges regarding 179 1 robustness and remote access to the system. Do you want 2 me to try to address those specifics?" 3 Scrolling up, please, to Ms Panter's reply on the 4 same day. She says this in her first paragraph: 5 "Many thanks for this ... If you feel that you are 6 able to deal with the issues of robustness and the 7 Remote Access system fairly swiftly then I would like 8 you to address those points that have been raised, so 9 that we can deal with every area that they have 10 criticised." 11 Scrolling up again, please. We see an email from 12 Mr Jenkins, and he proposes adding in to the report some 13 new sections. And he says: 14 "I have been asked to provide a statement in the 15 case of Kim Wylie. I understand the integrity of the 16 system has been questioned and this report provides some 17 general information regarding the integrity of Horizon." 18 There is then reference to the robustness of Horizon 19 in the next paragraph, including: 20 "... I would say that Horizon has been designed such 21 that it does not break down easily and is not affected 22 by a single application failure. Also, Horizon does 23 recovery quickly from failures and does hold up well 24 under exceptional circumstances and is not wholly 25 affected by a bug in one aspect of it. However as the 180 1 report below shows, that in those cases where there is 2 a failure, the Integrity of the data recorded is 3 maintained and any discrepancies resulting from the 4 failure are restricted to the transactions being 5 processed at the time of failure, whose amounts are 6 normally insignificant compared to the amounts 7 identified in shortfalls of cash as found during 8 an audit of a branch." 9 He goes on to address remote access. 10 "I also note a comment made about it being possible 11 to remotely access the system. It is true that such 12 access is possible; however in an analysis of data 13 audited by the system, it is possible to identify any 14 data that has not been input directly by staff in the 15 branch. Any such change to data is very rare and would 16 be authorised by Post Office Limited. As I have not had 17 an opportunity to examine data related to this branch, 18 I cannot categorically say that this has not happened in 19 this case, but I would suggest it is highly unlikely." 20 Coming then to the email at the top, which is 21 Ms Panter's reply. She says: 22 "I have had our in-house counsel Harry Bowyer read 23 this and he is happy for all of it to go in, including 24 the section about remote access. Harry has suggested 25 that in order for us to deal with that potential avenue, 181 1 that we ask the investigator to check if there have been 2 any occasions where the system has been accessed 3 remotely. Their findings either way can then be added 4 in a further covering their lines of inquiry." 5 So is Ms Panter right that you read and approved the 6 wording proposed by Mr Jenkins that -- 7 A. She must be, yes. 8 Q. You have this morning made a correction to your 9 statement, to the effect that the Deloitte report was 10 not the first time you became aware that remote access 11 was possible. 12 A. No. 13 Q. Was it looking at this document -- 14 A. It was looking at this document. This document dates 15 back to November 2012, when the backdoor wasn't an issue 16 that was bothering us. That became more live in July of 17 the next year, some eight months later, and I'd clean 18 forgotten it. You can see with the Gareth 19 Jenkins-Rachael Panter, he emails her first at I think 20 about 12.00 and her response is at 12.21. I have 21 telephoned Rachael Panter so I plainly wasn't close to 22 my keyboard, so I probably read the email on my 23 telephone, responded that I was happy for it to go in, 24 and suggested that we ought to cover whether it had been 25 remotely accessed and then, I'm afraid, I clear forgot 182 1 about the whole thing. 2 Q. Having had the opportunity to refresh your memory by 3 reference to this document, do you now recall being made 4 aware, in November 2012, about remote access? 5 A. No, not remotely. When -- there were a couple of shock 6 moments in this, as far as we were concerned. Number 1 7 was Second Sight discovering that there were bugs, and 8 the second one was the Deloitte report, which said that 9 there was remote access because by that stage Post 10 Office had been quite voluble about the fact that there 11 wasn't, and this particular email exchange, I just don't 12 remember because, as I said, my memory was the shock of 13 the Deloitte report. 14 Q. Does it follow from your answers that you don't recall 15 feeling shock when you found out about remote access 16 from Gareth Jenkins in November 2012? 17 A. Well, I don't think it was such an issue at that 18 particular stage, because when we got into 2013, people 19 were denying that it was possible and, you know, it was 20 when the Deloitte report came out that that was proof 21 positive that it was possible. And, as I said, my 22 reaction was shock in 2013 and I just didn't remember 23 this exchange. I'm pleased to say that -- pleased to 24 see that I actually advised disclosure of that and 25 I suggested that it should be followed up in the 183 1 statement. 2 Q. Do you think you understood the implications of this in 3 November 2012? 4 A. No, I don't think I did. It was plainly disclosable and 5 that's why I advised disclosure. But it was the next 6 year that the backdoor became an issue. 7 Q. I'd like to move, please, to the Second Sight Interim 8 Report. Could we have on screen, please, paragraph 60 9 of Mr Bowyer's statement, page 15. You say here: 10 "As far as Cartwright King's concerns with the 11 Second Sight Interim Report were concerned we were very 12 much alive to the fact that a system that we had been 13 told was robust did indeed have bugs in it. This was 14 plainly going to cause [Post Office Limited] 15 difficulties." 16 At 61: 17 "I remember being taken aback when we discovered 18 what the Second Sight Interim Report would contain as it 19 flew in the teeth of what we had been told. Again, it 20 was not of direct concern to me, as I was not a member 21 of the Post Office department." 22 Do you mean the Cartwright King Post Office 23 department by that? 24 A. Yes. 25 Q. You say at paragraph 14 of your statement that you 184 1 became aware, through conversations that Martin Smith 2 had had with senior Post Office Limited executives that 3 the Second Sight Interim Report would reveal the 4 existence of bugs in the Horizon system. How long 5 before the publication of the Interim Report did these 6 conversations take place; can you remember? 7 A. It happened at the very end of June, I think. What 8 happened was Martin Smith reported to Simon Clarke that 9 the Second Sight Report would disclose bugs. Simon 10 Clarke actually had a Post Office case that he was 11 prosecuting as counsel, and so he and Martin had 12 a conversation with Gareth Jenkins and I think the 13 Inquiry has got Martin's note of that particular 14 conversation. As a result of that, Simon asked to see 15 all Gareth Jenkins' previous statements or a number of 16 them and discovered that none of this material had been 17 made available there, which caused a worry about that 18 particular witness. That's what, effectively, inspired 19 the clerk report, which I think was about 15 July. 20 Q. When Martin Smith was told that the Interim Report was 21 going to make reference to bugs in the system, did 22 anyone from Cartwright King ask anyone from the Post 23 Office how long they had known about these bugs? 24 A. I don't know. 25 Q. Did you? 185 1 A. I certainly didn't but I came in later because I wasn't 2 part of the telephone call to Gareth Jenkins, so that 3 was Martin and Simon. 4 Q. Did this make you question, when you got this message, 5 whether Cartwright King would have been told about the 6 existence of these bugs by the Post Office, were it not 7 for the impending report? 8 A. Yes, I mean, this is -- this, as I said, was one of the 9 shock moments because a system that we were told was 10 robust, whilst it didn't have anything systemic in it, 11 it did have bugs and we should have known about them and 12 we should have been disclosing them. 13 Q. At paragraph 62 of your statement, you deal with the 14 information you received about Gareth Jenkins' knowledge 15 of bugs, and you say -- this is the point at which you 16 became involved: 17 "... when I was approached by Simon Clarke who told 18 me about the conversation that he and Martin Smith had 19 had with Gareth Jenkins in late June about the case that 20 Simon was prosecuting. 21 "The thrust of the conversation was that it was 22 Gareth Jenkins who had provided the information about 23 the two bugs mentioned in the Second Sight Interim 24 Report. This was clearly not consistent with statements 25 that he had given in the criminal cases that he had been 186 1 involved with." 2 Then at 64 you address the implications of this. 3 You say quick: 4 "The implications of this were plainly enormous and 5 it was our joint view that [Post Office Limited] could 6 not continue to prosecute on his evidence and there 7 would have to be a revisiting of previous cases with 8 disclosure in mind. This was unlikely to be popular 9 with [Post Office Limited] and our employers, 10 [Cartwright King]." 11 You say, however, that the management at Cartwright 12 King turned out to be supportive of your position; is 13 that right? 14 A. Yes. It was a nasty time, because, you know, if they 15 hadn't have been it could have made our lives very 16 uncomfortable. 17 Q. Did it surprise you that Cartwright King management were 18 supportive of your position at the time? 19 A. I was actually quite pleasantly surprised by it. 20 I thought they were going to be more difficult about it. 21 Q. You say at paragraph 65 there that: 22 "... the matter was canvassed at the highest levels 23 with the equity partners as [Post Office Limited] was 24 an enormous client even for a firm the size of 25 [Cartwright King]." 187 1 A. Yes. 2 Q. So was that part of the reason why you were pleasantly 3 surprised, because of the significance of this client -- 4 A. Yes. 5 Q. -- to the firm? 6 A. Yes. I mean, effectively, that was the stage that we 7 stopped the Post Office prosecuting and we also were 8 aware that there were disclosure problems, as far as 9 previous convictions. It may well be that Cartwright 10 King are not covered in glory, as far as their role as 11 independent lawyers are concerned but, actually, we did 12 stop the prosecutions at that stage and we did begin the 13 disclosure sifts. 14 Q. You deal at paragraph 66 with the Post Office reaction 15 to the Interim Second Sight Report and you say that: 16 "[Post Office Limited] were philosophical in regard 17 to disclosure of the Second Sight Interim Report to 18 current and previous defendants." 19 What do you mean when you say Post Office was 20 philosophical in regard to disclosure of it? 21 A. Well, we made it clear that these -- as far as the 22 Second Sight Interim Report and later the Helen Rose 23 report disclosed stuff that should have been made 24 available to previous defendants who had either been 25 convicted or who had pleaded, and so Simon Clarke put in 188 1 the sift regime and Post Office, very shortly after 2 that, instructed Brian Altman QC, as he was then. 3 Q. Can you recall which individuals at the Post Office in 4 particular were philosophical in this respect? 5 A. I think Jarnail Singh was someone I remember discussing 6 the case with Simon and Martin. 7 Q. You go on to say: 8 "The attitude then was still that the system was 9 essentially robust and, once the new expert was 10 instructed, they could prosecute again. They were very 11 concerned at the new cases being investigated piling 12 up." 13 A. Yes. 14 Q. What was the reasoning given by the Post Office for 15 continuing to believe the system to be robust, 16 notwithstanding the bugs which were identified in the 17 interim Second Sight Report? 18 A. Well, the bugs themselves were identified by Second 19 Sight as not being systemic and so, at that particular 20 stage, the belief was that an expert who was reliable, 21 or who was independent of Fujitsu, who could give the 22 Horizon system a clean bill of health, would, in fact, 23 fix the situation and they would be able to continue to 24 prosecute. 25 Q. Did no one think, well, if there have been these two 189 1 bugs, there might be others? 2 A. Well, to an extent, the Second Sight had been at this 3 for over a year, and they had been, as far as we knew, 4 in contact with Fujitsu, with the postmasters. They 5 were forensic accountants and this is all they'd come up 6 with. 7 Q. Did anyone think there have been these bugs, there might 8 have been others in the past outside the period being 9 looked at by Second Sight? 10 A. I don't know if anyone thought that but, as far as I was 11 concerned, I thought that Second Sight had actually 12 spent a fair amount of time doing this but that was the 13 whole point of getting the expert to take a look at the 14 thing, to see if it was, in fact, you know, robust as 15 Post Office said. 16 Q. Can you recall who was expressing concern about new 17 cases being investigated piling up? 18 A. I think that was Jarnail. 19 Q. Could we turn, please, to page 22 of Mr Bowyer's 20 statement, at paragraph 107, towards the bottom, please. 21 In the context of a question about how the Cartwright 22 King review, to which we'll come, should have been done 23 differently, you say this: 24 "Plainly the review was conducted on the false 25 premise that the only material that needed to be 190 1 disclosed was the Second Sight Interim Report and the 2 Helen Rose Report when it must have been known at [Post 3 Office Limited] and Fujitsu that the problems with 4 Horizon ran much deeper. We were under the impression 5 that whilst there were a couple of minor bugs revealed 6 by Second Sight and we had a problem with a dishonest 7 witness the Horizon system was fundamentally sound and 8 once that had been demonstrated by an independent expert 9 witness that prosecutions would proceed again. If we 10 knew then what we know now then there should have been 11 a root and branch reappraisal of the past prosecutions 12 and a complete moratorium on prosecutions based on 13 Horizon until it could be demonstrated to be sound." 14 At around the time of the publication of the Second 15 Sight Interim Report, you had been told that Mr Jenkins 16 was the one who had told Second Sight about the two bugs 17 identified in the report? 18 A. That was my impression, yes. 19 Q. You were concerned, along with your colleagues, enough 20 about his non-disclosure of bugs in the past that you 21 considered the Post Office could not continue to 22 prosecute based on his evidence. So in those 23 circumstances, did you not question, at the time, 24 whether there might be problems running deeper with 25 Horizon about which he and others were not being 191 1 forthcoming? 2 A. Well, at the time, no. 3 Q. Who was it at the Post Office that made the decision to 4 cease prosecutions until another expert can be found, as 5 far as you were aware? 6 A. I wasn't aware and it was as a result of Simon's advice. 7 Q. Turning then, please, to the Cartwright King review -- 8 SIR WYN WILLIAMS: Well, hang on, Ms Price. We're now 9 getting close-ish to 4.30. What's the plan? 10 MS PRICE: Sir, I think it's unlikely that I will finish 11 this afternoon. I don't have much more but I won't be 12 finished by 4.30, I'm afraid, sir. We had envisaged 13 going into tomorrow, in any event, ahead of Mr Smith's 14 evidence, to deal with Core Participant questions and, 15 sir, I wonder if it might be acceptable for me to finish 16 my questioning in the morning before we commence that? 17 SIR WYN WILLIAMS: Yes. Well, subject to me just confirming 18 with Mr Bowyer that he's ready, able and willing, so to 19 speak, to return tomorrow. 20 I understand that's the case, is it? 21 A. Yes, sir, I indicated a while ago that I could come 22 tomorrow. 23 SIR WYN WILLIAMS: Fine. So I think it is a convenient time 24 to stop now. We've been working since 9.45. So, 25 overnight, please don't talk about your evidence, I'm 192 1 sure you won't, and we'll resume again at 9.45 tomorrow. 2 Thank you. 3 THE WITNESS: I'm obliged. 4 MS PRICE: Thank you, sir. 5 (4.23 pm) 6 (The hearing adjourned until 9.45 am the following day) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 193 I N D E X HUGH MEYRICK FLEMINGTON (sworn) ...............1 Questioned by MR STEVENS ......................1 Questioned by MR JACOBS ......................87 Questioned by MR HENRY .......................91 Questioned by MS OLIVER ......................99 HARRY BOWYER (affirmed) .....................112 Questioned by MS PRICE ......................112 194